[Deschler's Precedents, Volume 8, Chapter 26]
[Chapter 26. Unauthorized Appropriations; Legislation on Appropriation Bills]
[From the U.S. Government Publishing Office, www.gpo.gov]
[Page 5187-5223]
CHAPTER 26
Unauthorized Appropriations; Legislation on Appropriation Bills
[[Page 5187]]
A. Introductory Matters
Sec. 1. Generally; Scope
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Commentary and legal editing by Evan Hoorneman, J.D. Manuscript
editing by Joan Deschler Eddy.
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Sec. 2. Points of Order; Timeliness
Sec. 3. Waiver of Points of Order; Perfecting Text Permitted to
Remain
Sec. 4. The Holman Rule
Sec. 5. Provisions Not Within the Holman Rule
Sec. 6. Amendments Between the Houses
B. Appropriations for Unauthorized Purposes
Sec. 7. In General
Sec. 8. Works in Progress
Sec. 9. Burden of Proof of Authorization
Sec. 10. Evidence of Authorization
Sec. 11. Subject Matter: Agriculture
Sec. 12. Commerce
Sec. 13. Defense and Veterans
Sec. 14. District of Columbia
Sec. 15. Environment and Interior
Sec. 16. Federal Employment
Sec. 17. Foreign Relations
Sec. 18. Justice
Sec. 19. Public Works
[[Page 5188]]
Sec. 20. Other Purposes
Sec. 21. Increasing Amount Beyond Authorization
C. Provisions as ``Changing Existing Law,'' Generally
Sec. 22. In General; Burden of Proof
Sec. 23. Incorporating or Restating Existing Law
Sec. 24. Construing Existing Law; Repealing Existing Law
Sec. 25. Construction or Definition of Terms of Bill or Law
Sec. 26. Authorizing Statute as Permitting Certain Language in
Appropriation Bill
Sec. 27. Provisions Affecting or Affected by Funds in Other Acts
Sec. 28. Provisions Affecting Funds Held in Trust
Sec. 29. Transfer of Funds Within Same Bill
Sec. 30. Transfer of Funds Not Limited to Same Bill
Sec. 31. Transfers or Disposition of Property
Sec. 32. Appropriations Prior to or Beyond Fiscal Year
Sec. 33. Increasing Limits of Authorization Set in Law
Sec. 34. Exceptions From Existing Law
Sec. 35. Change in Source of Appropriated Funds or in Methods of
Financing
Sec. 36. Changing Prescribed Methods of Allocation or Distribution
of Funds; Mandating Expenditures
Sec. 37. Grant or Restriction of Contract Authority
Sec. 38. Reimbursements
Sec. 39. Subject Matter: Agriculture
Sec. 40. Commerce
Sec. 41. Defense and Foreign Relations
Sec. 42. District of Columbia
Sec. 43. Federal Employment
Sec. 44. Congressional Salaries and Allowances
Sec. 45. Housing and Public Works
Sec. 46. Other Subjects
[[Page 5189]]
D. Provisions as Changing Existing Law: Appropriations Subject to
Conditions
Sec. 47. Conditions Contrary to or Not Required by Law
Sec. 48. Conditions Precedent to Spending
Sec. 49. Spending Conditioned on Congressional Approval
Sec. 50. Conditions Imposing Additional Duties
E. Provisions as Changing Existing Law; Provisions Affecting Executive
Authority; Imposition of New Duties on Officials
Sec. 51. Restrictions on or Enlargement of Discretion
Sec. 52. Provisions as Imposing New Duties
Sec. 53. --Duties Imposed on Nonfederal Officials or Parties
Sec. 54. Judging Qualifications of Recipients
Sec. 55. President's Authority
Sec. 56. Determination of National Interest
Sec. 57. Subject Matter: Agriculture
Sec. 58. Commerce
Sec. 59. Defense and Foreign Relations
Sec. 60. District of Columbia
Sec. 61. Education, Health, and Labor
Sec. 62. Interior
Sec. 63. Other Agencies and Departments
F. Permissible Limitations on Use of Funds
Sec. 64. Generally
Sec. 65. Imposing ``Incidental'' Duties
Sec. 66. Exceptions From Limitations
Sec. 67. Subject Matter: Agriculture
Sec. 68. Civil Liberties
Sec. 69. Commerce and Public Works
Sec. 70. Defense
Sec. 71. --Military Contracts
Sec. 72. District of Columbia
[[Page 5190]]
Sec. 73. Education and Community Service; Health; Labor
Sec. 74. Federal Employment
Sec. 75. Foreign Relations
Sec. 76. Interior
Sec. 77. Treasury and Post Office
Sec. 78. Veterans' Administration
Sec. 79. Other Uses
G. Limitation on Total Amount Appropriated by Bill
Sec. 80. Generally
INDEX TO PRECEDENTS
DESCHLER'S PRECEDENTS
Abortions, funds for (see also, for example, Duties not required under
existing law, provisions as imposing, on officials)
definition of terms in limitation, Sec. 25.14
determinations to be made by official as condition to availability,
Sec. Sec. 25.14, 53.4, 53.5
duties not required under existing law, provisions imposing, on
officials, Sec. Sec. 25.14, 52.30, 52.33, 53.4, 53.5
intent, findings of, provision requiring, Sec. 25.14
limitation prohibiting funds for abortion services, Sec. 73.8
limitation prohibiting funds for insurance coverage, Sec. 74.5
Aggregate expenditures, availability of particular funds made dependent
upon, Sec. Sec. 48.9, 48.11
Agriculture, provisions relating to, as affecting duties of officials
(see also, for example, Agriculture, provisions relating to, as
changing existing law)
allocation of state agricultural funds, grant of authority
respecting, rather than negative restriction, Sec. 57.2
cotton allotment acres, requiring new conditions for eligibility
for, Sec. 57.15
discretion given to Secretary to transfer property, Sec. 57.13
disease eradication, requiring Secretary to cooperate with state
authorities in, Sec. 57.14
experiments, agricultural, conditions affecting funds for,
Sec. 57.9
feed grain producers, payments to, limited to percentage of
diverted acreage, Sec. 57.5
foreign countries, agricultural stations in, conditions affecting
funds for, Sec. 57.9
grant of authority instead of negative restriction, Sec. 57.2
[[Page 5191]]
import quotas related to price support programs, Sec. 57.4
performance bonds by contractors, authority to require, Sec. 57.11
poultry inspection, provisions authorizing and directing, Sec. 57.7
price support loans, minimum interest rates for, Sec. 57.16
price support program, Sec. Sec. 57.3, 57.4
Secretary of Agriculture, directive to, respecting administration
of programs, Sec. Sec. 57.10, 57.12
soil conservation payments, sharecroppers to participate in,
Sec. 57.8
state agricultural funds, grant of authority instead of negative
restriction relating to, Sec. 57.2
state authorities, Secretary required to cooperate with, Sec. 57.14
state committee, approval of, allocation of funds for conservation
subject to, Sec. 57.2
state laws, requiring Secretary to comply with, Sec. 57.12
stations in foreign countries, agricultural, conditions attached to
funds for, Sec. 57.9
storage charges to be determined by competitive bidding, Sec. 57.6
surplus agricultural land, prohibiting disposal of, Sec. 57.17
Vietnam, North, restrictions relating to countries trading
commodities with, Sec. 57.1
Agriculture, provisions relating to, as changing existing law (see also
Agriculture, provisions relating to, as affecting duties of
officials)
bank audits, Sec. 39.9
continuing authority relating to loans, grants, and rural
rehabilitation, Sec. 39.7
continuing loan authority, Sec. 39.6
definition of terms, Sec. 39.10
income level as determining eligibility for payments, Sec. 39.3
loan authority of Reconstruction Finance Corporation extended,
Sec. 39.6
price, minimum, on agricultural purchases, Sec. 39.4
Reconstruction Finance Corporation, loan authority of, provision
extending, Sec. 39.6
Rural Electrification Administration, restriction on use of loans
under, Sec. 39.5
sharecropper participation in conservation, Sec. 39.1
soil conservation payments, Sec. 39.2
soil conservation service, capping allotments for, Sec. 39.11
timber sales, use of money from, Sec. 39.8
Agriculture, unauthorized appropriations relating to, see specific
topics under Unauthorized purposes, rule prohibiting appropriations
for
Allocation or distribution of funds, changing prescribed methods of
generally, Sec. Sec. 36.1, 36.2
allotment in authorization, changing, by line-item appropriations,
Sec. 36.7
apportionment of funds, requiring a certain, Sec. Sec. 36.3, 61.7
Commodity Credit Corporation, directing minimum spending of,
Sec. 36.19
education, provisions as changing prescribed formula for allotment
of funds for, Sec. Sec. 36.8-36.12, 36.14, 36.21, 36.22, 61.7
[[Page 5192]]
employment in public service jobs, provision affecting formula for
allocating funds for, Sec. 36.16
exemption from mandatory funding levels, Sec. 36.5
formula for allotment of aid to education, provisions changing,
Sec. Sec. 36.8-36.12, 36.14, 36.21, 36.22, 61.7
higher education, funds for program of, not authorized unless other
programs funded first, Sec. 36.14
``hold-harmless'' provision mandating expenditure level, Sec. 36.22
line-item appropriations as changing allotment in authorization,
Sec. 36.7
mandating expenditures for Indian education, Sec. 36.21
mandating obligation of funds for unauthorized program of economic
development, Sec. 36.15
mandating spending levels, Sec. 36.2
mandating use of funds for new purpose, Sec. 36.23
priorities in allocating funds, requiring, Sec. 36.6
reapportionment of unused funds, permitting, Sec. 36.4
rural electrification grants, amendment providing for, offered to
bill providing for loans, Sec. 36.13
unused funds, permitting reapportionment of, Sec. 36.4
veterans' preference in job training, Sec. 36.17
Atomic Energy Commission, bill appropriating funds for, multiple
grounds for objection to title of, Sec. 22.21
Authorization, evidence of
annual authorization, requirement of, as superseding organic law,
Sec. 10.11
appropriation act, prior, language of permanence in, Sec. 11.1
appropriation bills, legislative language previously included in,
as not authorizing inclusion in present bill, Sec. 1.7
appropriation bills, prior, item carried in, Sec. 10.6
executive assurance that authorization formula was followed,
Sec. 10.7
executive order, Sec. Sec. 7.6, 7.9, 10.10
formula, assurance as to implementation of, Sec. 10.7
generic law, citation of, Sec. 10.8
letter from Army Chief of Staff, Sec. 10.3
letter from executive officer, Sec. 10.2
official information digest, Sec. 10.4
organic law, authorization in, Sec. Sec. 11.10, 11.11
press reports relating to project, Sec. 10.4
prior appropriation act, language of permanence in, Sec. 11.1
public knowledge, Sec. 10.5
reorganization plan as authorization, Sec. Sec. 7.9, 10.9
statute, citation of, Sec. Sec. 10.1, 10.8
Authorization, increasing amount beyond
generally, Sec. 21.1
committee funds above authorized level, Sec. Sec. 21.4, 21.5
lump sum increased beyond authorization, Sec. Sec. 21.2, 21.3
Authorizing statute as permitting certain language in appropriation
bill
congressional approval, subsequent, appropriation made contingent
upon, Sec. 49.4
consultant salaries, Sec. 26.4
cultural relations program, Sec. 26.3
discretion as to travel expenses of Bituminous Coal Commission,
Sec. 52.28
[[Page 5193]]
discretion, conferral of, as contemplated by existing law,
Sec. 26.1
executive authority, restrictions on, Sec. 26.5
newspaper advertisements, restrictions on, Sec. 26.2
per diem permitted by law, setting limit on, Sec. 26.4
procurement law, waiver of provision of, Sec. 26.7
restrictions on use of appropriation, Sec. 26.5
testimony of Congressmen, Sec. 26.6
waiver of law, Sec. Sec. 26.2, 26.3, 26.6, 26.7
waiver of law explicit, Sec. 26.2
Bill considered as read, points of order when, Sec. 2.13
Bill opened for amendment at any point, points of order when,
Sec. 2.14-2.16
Budget adjustments by corporations and agencies, provision prescribing
procedure for, Sec. 46.1
Burden of proof of authorization
citations of law presented in argument, Chair relies on, Sec. 9.6
committee, burden on, Sec. Sec. 9.3, 9.5
managers of bill, burden on, Sec. 9.4
President's emergency fund, Sec. 9.3
proponent of amendment, burden on, Sec. Sec. 9.1, 9.2
reversal of ruling on showing authority cited in argument had been
superseded, Sec. 9.6
Burden of proof on issue whether language changes existing law
apportionment of funds, restrictions attached to, rather than
amount, purpose, or object of funds, Sec. 22.26
committee, burden on, to defend provisions of bill,
Sec. Sec. 22.27, 22.30
duties imposed on executive to make new determinations, points of
order based on, Sec. Sec. 22.25, 23.19
existing laws and regulations, executive determinations expressly
required to be made pursuant to, Sec. 23.19
proponent of amendment, burden on, Sec. Sec. 22.25, 22.29, 23.19
timing of expenditures, provision affecting discretion as to,
Sec. Sec. 51.23, 64.23
Busing, school (see also Limitations allowed: civil liberties,
provisions relating to)
defining scope of prohibition on funds, provision as, Sec. 25.6
duties of officials, provision denying funds for busing as
affecting, Sec. Sec. 51.10, 61.1-61.3
exception from limitation, Sec. 61.3
limitations, provisions relating to busing allowed as,
Sec. Sec. 64.26, 68.8, 68.9, 73.7
prohibition on use of funds, amendments to, limiting application of
provision, Sec. 25.6
Ceiling on expenditures, raising, Sec. 3.27
Change in source of appropriated funds or in methods of financing
borrowing authority in lieu of appropriation, Sec. 35.4
Commodity Credit Corporation indebtedness, discharge of,
Sec. Sec. 35.7-35.9
Commodity Credit Corporation indebtedness, interest on, forgiven,
Sec. 35.8
direct authorization and appropriation in lieu of Treasury
financing, Sec. 35.5
Housing and Home Finance Administrator, terminating authority of,
to issue notes and obligations, Sec. 35.6
[[Page 5194]]
public debt transaction financing mechanism, provision
establishing, Sec. 35.11
reclamation fund or general fund, Sec. Sec. 35.1, 35.2
Secretary of Treasury authorized to adjust levels of
appropriations, Sec. 35.12
securities sales, proceeds of, as public debt transaction,
Sec. 35.11
Tennessee Valley Authority, repayment of interest to Treasury by,
Sec. 35.10
Tennessee Valley Authority, resource development activities funded
partly by proceeds of operations of, Sec. 46.12
timber sale receipts or general fund, Sec. 35.3
Changing existing law, provisions as, see specific topics; see also
Unauthorized purposes, application of rule prohibiting
appropriations for
Civil Aeronautics Authority required ``hereafter'' to solicit sealed
bids, Sec. 46.3
Civil liberties, see, for example, Limitations allowed: civil
liberties, provisions relating to; and Busing
Commerce, provisions relating to, as affecting duties of officials (see
also, for example, Commerce, provisions relating to, as changing
existing law)
advertising of certain products, use of funds to limit, prohibited,
Sec. 58.7
business data, restriction on discretion to collect, Sec. 58.6
Coast Guard, report by, on closing of rescue units, Sec. 58.4
employment, authority to terminate, Sec. 58.2
export embargoes, requiring determinations respecting imposition
of, Sec. 58.5
Federal Communications Commission required to make determinations
regarding products being advertised, Sec. 58.7
Federal Trade Commission, restriction on discretion of, to collect
line-of-business data, Sec. 58.6
line-of-business data, restriction on discretion to collect,
Sec. 58.6
regulations to be prescribed by Secretary, Sec. 58.3
scientific reports, sales of, Sec. 58.1
Secretary, regulations to be prescribed by, Sec. 58.3
Commerce, provisions relating to, as changing existing law
authority of Secretary of Commerce, delegation of, Sec. Sec. 40.1,
40.2
business, census relating to, Sec. 40.5
Classification Act, waiver of, Sec. 40.5
consumer income, compilation of statistics relating to, Sec. 40.7
entertainment expenses, Sec. 40.3
foreign trade statistics, compilation of, Sec. 40.4
manufactures, census relating to, Sec. 40.6
Commerce, unauthorized appropriations relating to, see specific topics
under Unauthorized purposes, rule prohibiting appropriations for
Condition, subsequent congressional approval as, see Congressional
approval, subsequent, as condition to availability of funds
Condition subsequent, amendment providing for, in that funds terminate
upon subsequent passage of specified legislation, Sec. Sec. 64.10,
67.2
[[Page 5195]]
Condition subsequent, finding of unconstitutionality of authorizing
statute as, Sec. 76.6
Conditions contrary to or not required by law, appropriations made
subject to
audit, funds made subject to, Sec. 47.8
authorization, contingent upon enactment of, Sec. Sec. 47.3-47.5
enactment of authorization, funds contingent upon, Sec. Sec. 47.3-
47.5
federal official, action by, Sec. 47.1
Presidential appointment to be made, Sec. 47.7
prior law, funds to be used only for enforcement of,
Sec. Sec. 47.9, 47.10
recipient, condition on disbursement to, Sec. 47.2
regulations or law previously in effect, funds to be used only for
enforcement of, Sec. Sec. 47.9, 47.10
standards, imposition of, Sec. 47.6
subsequent enactment of authorization, funds contingent upon,
Sec. Sec. 47.3-47.5
``unless'' or ``until'' occurrence of contingency, funds made
unavailable, Sec. 47.1
Conditions imposing additional duties on officials, appropriations made
subject to (see also Duties not required under existing law,
provisions imposing, on officials)
attached to otherwise valid limitation, Sec. 50.1
authorization, determination by Secretary as to, Sec. 50.3
determination by Secretary as to authorization, Sec. 50.3
determination of state compliance with conditions, Sec. 50.2
directives to President, Sec. Sec. 50.4, 50.5
directive to Administrator of Federal Aviation Agency, Sec. 50.6
drug control, conditions attached to funds for, Sec. 59.21
Federal Aviation Agency, directive to Administrator of, Sec. 50.6
health and safety information, submission of, required as condition
of receiving funds, Sec. 50.8
limitation, attached to purported, Sec. 50.1
President, directives to, Sec. Sec. 50.4, 50.5
recipients, nonfederal, actions to be performed by, Sec. 53.1
recommendations by agencies, expenditures to be pursuant to,
Sec. 50.7
state compliance with conditions, determination of, Sec. 50.2
Conditions precedent to spending
generally, Sec. 48.1
aggregate expenditures, funds dependent on, Sec. Sec. 48.9-48.11
approval, prior, by officials, Sec. Sec. 48.3, 48.4
audit by Comptroller General, Sec. 48.2
available, funds made, only to extent aggregate expenditures do not
exceed specified levels, Sec. Sec. 48.9-48.11
balanced budget, pending, Sec. 48.11
budget, conditions related to status of, Sec. Sec. 48.9-48.11
Bureau of Budget, prior approval by, Sec. 48.3
ceiling imposed on spending as dependent on status of budget,
Sec. Sec. 48.9-48.11
Congress, prior submission of proposal to, Sec. 48.3
contractual arrangements, new, provisions requiring, Sec. 48.1
[[Page 5196]]
cost sharing for cooperative range improvements, Sec. 48.6
cost sharing for road construction, Sec. 48.7
cost sharing, state and local, for investigations, Sec. 48.5
delaying obligation until other funds have been spent, Sec. 48.8
other acts, funds in, conditions as affecting, Sec. 48.9
other expenditure, pending, Sec. 48.8
President's budget, ceiling by reference to, Sec. 48.10
Public Housing Commissioner, prior approval by, Sec. 48.4
Conference, Sec. Sec. 6.3, 6.4, 6.6
Congress, provisions imposing criminal penalties on Members of, for
improper expense vouchers, Sec. 46.18
Congressional approval, subsequent, as condition to availability of
funds
airport development, approval of Congress for, Sec. Sec. 49.3, 49.4
committees, congressional, approval by, Sec. Sec. 22.1, 49.5-49.9
concurrent resolution, approval by, Sec. 49.2
debt, subsequent congressional finding of impact on, Sec. 49.1
findings, subsequent, by Congress, Sec. Sec. 49.1, 49.10
joint resolution, adoption of, in prescribed form, Sec. 49.10
schools for military dependents, subsequent congressional action
relating to, Sec. 49.11
Congressional salaries and allowances, provisions relating to, as
changing existing law
generally, Sec. 44.1, 44.2
allowances, requiring new committee regulations with respect to,
Sec. 44.10
clerk hire, Sec. 44.3
committee staff, procedure for employment of, Sec. 44.9
increasing staff salaries, Sec. Sec. 44.4, 44.5
office allowances, Sec. 44.7
position titles changed, Sec. 44.6
staff salaries, Sec. Sec. 44.4, 44.5
travel expenses, tax treatment of, Sec. 44.8
Constitutionality of authorizing law, subsequent finding as to,
provision stating condition in terms of, Sec. 76.6
Construction or definition of terms of bill or law, see Definition or
construction of terms of bill or law
Construing existing law (see also Definition or construction of terms
of bill or law)
generally, Sec. 24.1
conformity with existing law, use of funds determined to be in,
Sec. 22.12
housing units, limit on number of, Sec. 24.2
Continuing appropriations, generally, Sec. 1.2
Contract authority, grant or restriction of
generally, Sec. Sec. 37.1, 37.2
advertising, authority to contract without, Sec. 37.13
claims, granting authority to, compromise on, Sec. 37.11
construction, authority to incur obligations and complete,
Sec. 37.9
Environmental Protection Agency, Sec. 37.14
existing authority, provision as descriptive of, Sec. 37.10
[[Page 5197]]
fiscal year, contract authority beyond, Sec. 37.6
future appropriations, authority to obligate, Sec. 37.6
health contracts for employees, authority to negotiate, Sec. 37.11
Inter-American Affairs, Institute for, Sec. 37.12
limitation on funds to pay contract approved pursuant to law,
Sec. 37.10
obligational authority, grant of contract and, Sec. Sec. 37.3, 37.4
preceding appropriation, contract authority as, Sec. 37.5
restatement of existing authority, provision as, Sec. 37.10
restriction on contract authority contained in bill, Sec. 37.7
Secretary of the Interior, contracts entered into by, to acquire
land before appropriation therefor, Sec. 37.8
Tennessee Valley Authority, provisions affecting, Sec. 37.3
Contract authorization, change in, Sec. 22.14
Dam, provision relating to name of, Sec. 46.2
Dates in authorization law, amending, Sec. 22.3
Defense, provisions relating to, as affecting duties of officials (see
also Defense, provisions relating to, as changing existing law)
confidential military operations, reports on, Sec. 59.8
contracts for ship construction or repair, conditions attached to
funds for, Sec. 59.6
contracts, funds for, barred unless Secretary makes findings as to
pension programs, Sec. 59.5
contracts, funds prohibited to pay amounts due on, where policy
prevents award to low bidder, Sec. 59.3
contracts, renegotiation agreements required as condition to
payments on, Sec. 59.4
contracts with companies having retired officers on payroll barred,
Sec. 59.2
exception from limitation as requiring new duty, Sec. 59.11
foreign goods, standard of quality required for purchase of, to be
same as that required by Defense Department for domestic goods,
Sec. 59.1
medical reimbursements not to exceed percentage of customary
charges, Sec. 59.20
naval vessel construction or repair to be done in private shipyards
except where otherwise directed, Sec. 59.6
operations, confidential, reports on, Sec. 59.8
production for military purposes, authority of Secretary to
expedite, Sec. 59.7
retired officers, employment of, by contractors, Sec. 59.2
small business, reports on, Sec. 59.10
transfer funds, Administrator of Veterans' Affairs authorized to,
Sec. 59.12
Defense, provisions relating to, as changing existing law (see also
Defense, provisions relating to, as affecting duties of officials)
army, strength of, established at ``not less than'' specified
number, Sec. 41.3
Cambodia and Laos, military activities in, Sec. 41.1
foreign aid funds, mandating domestic use of, Sec. 41.8
general counsel in Defense Department, Sec. 41.2
[[Page 5198]]
Panama Canal, sense of Congress with respect to policy affecting,
Sec. 41.10
sense of Congress on foreign policy issue, Sec. Sec. 41.4, 41.10
subversives, employment of, Sec. 41.7
Defense, unauthorized appropriations relating to, see specific topics
under Unauthorized purposes, rule prohibiting appropriations for
Definition or construction of terms of bill or law
abortion limitation, definition of terms in, Sec. 25.14
army publications, Sec. 25.3
authority, grant of, based on determination of national defense
needs, Sec. 25.9
bill, interpretation of, directions as to, Sec. 25.15
budget, President's, definition of terms in limitation by reference
to, Sec. 25.11
Bureau of Reclamation, Sec. 25.2
busing limitation, language defining scope of, Sec. 25.6
defense needs, determination of, Sec. 25.9
descriptive term, Sec. 25.1
education, Sec. 25.6
exception from valid limitation, Sec. 25.3
exception to limitation, construing language in, Sec. 25.10
exceptions to limitations, Sec. Sec. 25.5, 25.10
expense defined as nonadministrative, Sec. 25.4
``person,'' definition of, in agriculture appropriation bill,
Sec. 25.7
``person'' in agriculture appropriation bill, Sec. 25.7
price support program, Sec. 25.12
Public Buildings Administration, Sec. 25.8
purpose, limitation containing statement of, Sec. 25.13
waiving limitations contained elsewhere in same bill, provision as,
Sec. 25.2
Delay in expenditures, provisions imposing, Sec. Sec. 48.8-48.11, 63.10
Delegating authority to suspend existing law, Sec. 22.17
Delegation of statutory authority, Sec. 22.15
Department, different, funding through, Sec. 22.18
Discretion, executive, provisions restricting or enlarging
generally, Sec. Sec. 51.1-51.4
affirmative action, double negative curtailing discretion as
requiring, Sec. 51.19
approve expenditure, conferring discretion to, Sec. 22.19
civil service laws, conferral of discretion as changing, Sec. 22.17
conditions imposed on exercise of discretion, Sec. 51.4
conferring discretion, Sec. Sec. 22.4, 22.16, 22.17, 22.19, 26.1
curtailed discretion, limitation of funds resulting in,
Sec. Sec. 51.13, 51.14
double negative curtailing discretion as requiring affirmative
action, Sec. 51.19
employment, conferral of discretion with respect to, as changing
civil service laws, Sec. 22.17
employment, limitation on discretion with regard to, Sec. 51.6
existing law, conferral of discretion as contemplated by, Sec. 26.1
expenditure, discretion to approve, Sec. 22.19
[[Page 5199]]
funds, restriction must be on, rather than on discretion,
Sec. Sec. 51.9, 51.10, 51.18
health and safety information required to be submitted as condition
of receiving funds, Sec. 50.8
hiring, limitation on discretion with regard to, Sec. 51.6
incorporating existing law, provision restricting discretion by,
Sec. 23.8
information, agency required to furnish, to subcommittees,
Sec. Sec. 51.20, 51.21
interference with discretion, Sec. 51.12
investigation, provision as mandating, Sec. 51.7
mandating an investigation, Sec. 51.7
mandating one of several choices, Sec. Sec. 51.2-51.4
mortgage commitments, mandating uniformity in, Sec. 51.8
policy, limitation on funds as changing, Sec. 51.15
postal rates, Commission's authority to establish, Sec. 51.22
program, limiting funds to administer, Sec. 51.17
regulations, limiting funds to promulgate, Sec. 51.16
requiring action that is currently discretionary, Sec. 51.11
specific appropriation where general purpose authorized, Sec. 51.5
statute, existing, conferral of discretion as contemplated by,
Sec. 26.1
subcommittees, agency required to furnish information to,
Sec. Sec. 51.20, 51.21
timing of expenditures, Sec. 51.23
veterans' preference in employment, conferral of discretion as
changing laws governing, Sec. 22.17
waive law, conferring discretion to, Sec. 22.16
District of Columbia, provisions relating to, as affecting duties of
officials
Corporation Counsel, authorizing employment at rates to be set by,
Sec. 60.7
emergency authority conferred on federal official, Sec. 60.3
employment at rates to be set by Corporation Counsel, authorizing,
Sec. 60.7
employment quotas, imposing, Sec. 60.6
obligational authority, restriction on, Sec. 60.5
teachers, limiting duties of, Sec. 60.1
travel authorizing, Sec. 60.4
water supply treatment in District of Columbia, Sec. 60.2
District of Columbia, provisions relating to, as changing existing law
Corporation Counsel, Office of, Sec. 42.1
discretionary method of expenditure, Sec. 42.3
hospital rates for treatment of indigent patients, Sec. 42.4
mandating equal expenditure for all races, Sec. 42.2
``notwithstanding existing law,'' provision barring funds for
newspaper advertisements, Sec. 42.6
Police Court Building, supervision of, Sec. 42.5
District of Columbia, unauthorized appropriations relating to, see
specific topics under Unauthorized purposes, rule prohibiting
appropriations for
Duties not required under existing law, provisions as imposing, on
nonfederal officials or parties
abortion, determinations required prior to, Sec. Sec. 53.4, 53.5
[[Page 5200]]
farmers to use funds in prescribed way, Sec. 53.2
Governor, approval by, for construction within state, Sec. 53.3
recipient of funds, nonfederal, affirmative directive to, Sec. 53.1
state official required to make determinations, Sec. 53.6
Duties not required under existing law, provisions as imposing, on
officials (see also Conditions imposing additional duties on
officials, appropriations made subject to; and see specific subject
areas)
generally, Sec. 52.1
abortions, provisions relating to, Sec. Sec. 25.14, 52.30, 52.33,
53.4, 53.5, 73.8, 74.5
administration and disbursement in certain manner, requiring,
Sec. 52.11
affirmative directive, limitation cannot be, Sec. 52.23
affirmative directive to recipient of funds, Sec. 52.21
agencies funded, other, relationship of limitation to, Sec. 52.40
allocation of funds, new determinations in making, Sec. Sec. 52.18,
52.19
annual appropriation acts, duties already being performed pursuant
to provisions in, Sec. 52.44
annual report, requiring, Sec. Sec. 52.9, 52.10
approval of expenditure rates, Sec. 52.27
audit, expenditure of funds contingent on, Sec. 63.4
benefit, full, determination of, Sec. 52.16
Budget Director to approve use of funds, Sec. Sec. 63.1, 63.2
``buy American'' policy where there is domestic production of
goods, Sec. Sec. 52.42, 63.7
``buy American'' requirements as imposing duties on Administrator
of General Services Administration, Sec. 63.7
certification of satisfaction, requiring, as condition precedent to
disbursement, Sec. 52.2
change of official authorized to make expenditure, Sec. 52.26
Comptroller General, funds to be audited by, Sec. 63.4
condition precedent to availability of funds as imposing new
duties, see conditions imposing additional duties on officials,
appropriations made subject to
contracting practices, mandating, Sec. 52.15
delay imposed on expenditure, Sec. 63.10
determination as to compliance with federal law, Sec. 52.34
determination as to ``full benefit,'' Sec. 52.16
determination as to motive or intent, Sec. Sec. 52.4, 52.37, 61.13
determination as to national security needs, Sec. 52.29
determination as to reductions to be made ``without impairing
national defense,'' Sec. 52.6
determination by Director of Budget that transfers of funds do not
result in deficiencies, Sec. 52.12
determination of interest costs, requiring, Sec. 52.31
[[Page 5201]]
determinations, new, in making allocation of funds,
Sec. Sec. 52.18, 52.19
determination, substantive, not required by law, Sec. 52.38
determination that life or health of mother endangered if fetus
carried to term, Sec. Sec. 52.30, 52.33
determination that recipient ``participates,'' ``cooperates,'' or
``supports,'' Sec. 52.17
domestic production, ``buy American'' policy in aid of, Sec. 52.42
``effectiveness'' and ``propriety,'' evaluation of, Sec. 52.32
evaluation and interpretation, Sec. Sec. 52.32, 52.39
exception from limitation as requiring new duty, Sec. Sec. 59.11,
66.5
existing law, funds conditioned upon duties already required by,
Sec. Sec. 52.35, 52.36
existing law, requiring new determination ``in accordance with,''
Sec. 23.19
expenditure rates, approval of, Sec. 52.27
Export-Import Bank, limitation on use of funds by, Sec. 63.6
food stamps, eligibility for, where wage earner is on strike,
Sec. 52.45
hearing, requiring, before making determination, Sec. 52.3
highway programs, restrictions on funds for, imposing duties on
Director of Bureau of Public Roads, Sec. 63.3
housing funds, availability of, contingent on new analysis of need,
Sec. 63.8
indirectly, duties as resulting, from operation of other laws,
Sec. 52.7
information, receiving, Sec. 52.5
intent or motive, determination as to, Sec. Sec. 52.4, 52.37
investigation, requiring, Sec. 52.20
laws, other, duties indirectly resulting from operation of,
Sec. 52.7
limitation as negative, not affirmative direction, Sec. 52.23
loan applications, requiring screening of, Sec. 52.24
mail, seizure of, denial of funds for, Sec. 63.13
motive, duty of determining, Sec. Sec. 52.4, 52.37
National Aeronautics and Space Administration, funds for, not to be
used for U.S.-Soviet joint venture, Sec. 63.9
necessary, action taken to the extent the Secretary finds to be,
Sec. 52.14
Patent Office, materials to be sold by, at prices determined by
Commissioner, Sec. 63.12
performance, satisfactory, requirement of, Sec. 52.25
Post Office, funds for, not to be used for seizure of mail,
Sec. 63.13
Post Office salaries, funds for, denied as to officers undertaking
certain actions, Sec. 63.16
President, duties imposed on, see President, duties imposed on,
that are not required by existing law ``propriety'' and
``effectiveness,'' evaluation of, Sec. 52.32
rates of expenditure, approval of, Sec. 52.27
[[Page 5202]]
recipient of funds, affirmative directive to, Sec. 52.21
recipient of information, provision requiring official to be,
Sec. 52.5
recipients, duty to monitor actions of, Sec. 52.21
regulations, implicitly requiring agency to reevaluate, Sec. 52.43
regulations, requirement for promulgation of, Sec. 52.13
research and development, funds for, under certain types of
contracts denied, Sec. 63.11
rulemaking authority, prohibiting funds to interfere with,
Sec. 52.43
satisfactory performance, requirement of, as condition precedent,
Sec. 52.25
small firms, limiting funds to administer or enforce law with
respect to, Sec. 52.41
strike, eligibility for food stamps where wage earner is on,
Sec. 52.45
substitution of different official to perform duty, Sec. 52.26
Tennessee Valley Authority, use of funds by, to be approved by
Budget Director, Sec. 63.1
transfer of funds, discretionary, Sec. 52.8
travel expenses at discretion of commission, Sec. 52.28
Treasury Department to determine rates of exchange, Sec. 63.14
unemployment compensation, funds provided for, only to extent
Secretary finds necessary, Sec. 52.14
Education, provisions relating to, as affecting duties of officials
(see also, for example, Limitations allowed: education, provisions
relating to)
apportionment of funds contrary to existing law, Sec. 61.7
busing, denial of funds for, Sec. Sec. 51.10, 61.1-61.3
busing limitation, exception from, Sec. 61.3
colleges not in compliance with law, denial of funds to, Sec. 63.5
exception from busing limitation, Sec. 61.3
financial assistance denied to students engaging in disruptive
behavior, Sec. Sec. 61.4, 61.5
funds, limitation to be applied to, rather than to discretion,
Sec. 61.2
impact aid, provisions relating to, Sec. Sec. 52.18, 61.7
military training courses, information concerning, required to be
given, Sec. 53.1
recipient of funds, directive to, Sec. 53.1
teachers not to perform clerical work, Sec. 60.1
Emergencies arising after approval of budget, provisons prescribing
procedures for adjustments to meet, Sec. 46.1
Enactment, legal effect of legislative language after, Sec. 3.17
Environment, unauthorized appropriations relating to, see specific
topics under Unauthorized purposes, rule prohibiting appropriations
for
Exceeding limitation in permanent law, Sec. 22.9
Exceptions from existing law
civil service laws, exception from, Sec. Sec. 34.2-34.8
Classification Act, waiving, Sec. Sec. 34.4-34.8
[[Page 5203]]
Commodity Credit Corporation, forgiving interest on indebtedness
of, Sec. 35.8
contracts, certain laws regulating, waived, Sec. 34.15
contracts, competitive bidding on, waived, Sec. 34.1
Davis-Bacon Act, waiving, Sec. 34.14
international conferences, incidental expenses relating to,
Sec. 34.12
President, personal services to, Sec. 34.9
reindeer, purchase of, Sec. 34.13
travel expenses, Sec. Sec. 34.10, 34.11
Exceptions from limitations, see Limitations, exceptions from
Executive authority, see, for example, Discretion, executive,
provisions restricting or enlarging; Duties not required under
existing law, provisions as imposing, on officials
Extending availability of funds beyond time specified in existing law,
Sec. 22.2
FBI files and information, new authorization for use of, Sec. 46.4
Federal employment, provisions relating to, as changing existing law
aliens, denial of status to, not a Holman retrenchment, Sec. 43.22
Attorney General, or assistant, pay of witnesses to be determined
by, Sec. 43.12
civil service rating for officer, providing, Sec. 43.14
Commissioner of Public Buildings, setting salary of, Sec. 43.18
conditions of employment, Sec. Sec. 43.1-43.3
Customs Division, employment in, of specialists at salaries as
authorized by department head, Sec. 43.10
exempting certain persons from employment statutes, Sec. 43.15
grade level, specifying, Sec. 43.13
judiciary, employment by, Sec. 43.6
lands division, employment in, of specialists at salaries as
authorized by department head, Sec. 43.11
liability of federal employees, personal, defining, Sec. 43.23
new position, providing, Sec. 43.9
number of employees, limit on, Sec. 43.20
reduction of personnel, Sec. 43.16
``right to work'' amendment, Sec. 43.5
salaries and expenses, repealing limit on, Sec. 43.21
salary, average, limitation on, Sec. 43.19
salary levels, establishing, Sec. Sec. 43.7, 43.8, 43.17, 43.18
salary, prohibition on, until security clearance certified,
Sec. 43.3
security clearance, salary barred until certification of, Sec. 43.3
specialists, employment of, at salary levels to be authorized by
department head, Sec. Sec. 43.10, 43.11
strike, exclusion of persons advocating right to, Sec. 43.2
supergrades, establishing, Sec. Sec. 43.13, 43.14
terminate employment, granting authority to, Sec. 43.4
witnesses, pay of, to be determined by Attorney General or
assistant, Sec. 43.12
Federal employment, unauthorized appropriations relating to, see
specific topics under Unauthorized purposes, rule prohibiting
appropriations for
Financing, change in methods of, see Change in source of appropriated
funds or in methods of financing
[[Page 5204]]
Fiscal year, appropriations prior to or beyond
generally, Sec. 32.1
authorization for continued availability lacking, Sec. 32.2
building construction funds, Sec. 32.1
building fund, federal, obligational authority limited to current
fiscal year, Sec. 32.21
Bureau of Reclamation construction funds, Sec. 32.15
``each fiscal year thereafter,'' available, Sec. 32.8
expended, appropriation available until, Sec. Sec. 32.10-32.18
fees and royalties hereafter received, Sec. 32.9
``final,'' characterization of appropriation as, Sec. 32.3
immediately available, funds to be, Sec. 32.4
Joint Economic Committee, lump-sum appropriation for, Sec. 32.20
Mutual Security Act, Sec. 32.18
National Academy of Sciences, Sec. 32.19
next fiscal year, available for, Sec. 32.7
next fiscal year, available to end of, Sec. 32.6
permanent appropriations, Sec. Sec. 32.5, 32.8
prior obligations, payment of, Sec. 32.16
Telecommunciations Policy, Office of, Sec. 32.17
Foreign relations, provisions relating to, as affecting duties of
officials
appointments in Foreign Service, authority given to Secretary to
extend, Sec. 59.13
``buy-America'' provisions, Sec. 59.1
capital assistance project, funds for, prohibited until report is
considered, Sec. 59.9
communist countries, restriction on aid to, Sec. 59.17
drug control, conditions attached to funds for, Sec. 59.21
emigration, aid to countries which restrict, curtailed, Sec. 59.18
employment in Department of State or Foreign Service, authority to
Secretary to terminate, Sec. 59.14
Foreign Service appointments, authority given to Secretary to
extend, Sec. 59.13
Foreign Service employment, authority given to Secretary to
terminate, Sec. 59.14
international organizations, funds for payment of interest costs
by, curtailed, Sec. 59.19
international organizations, payment of assessments by, Sec. 59.16
loyalty, certification of, as condition on payment of salaries to
State Department employees, Sec. 59.15
narcotics control, conditions attached to funds for, Sec. 59.21
products purchased from foreign countries, standards of quality
imposed on, Sec. 59.1
reports on feasibility projects required, Sec. 59.9
security clearance required for employees, Sec. 59.15
standards of quality or performance, imposition of, Sec. 59.1
Foreign relations, provisions relating to, as changing existing law
Cuba, trade with, Sec. 41.6
earmarking of ``reasonable amount,'' Sec. 41.9
international organizations, contribution of, Sec. 41.5
Panama Canal Treaty, sense of Congress concerning interpretation
of, Sec. 41.10
[[Page 5205]]
sense of Congress concerning Chinese representation in U.N.,
Sec. 41.4
sense of Congress concerning interpretation of Panama Canal Treaty,
Sec. 41.10
subversives, employment of, Sec. 41.7
Foreign relations, unauthorized appropriations relating to, see
specific topics under Unauthorized purposes, rule prohibiting
appropriations for
Funds in other acts, provisions affecting or affected by
generally, Sec. Sec. 27.1-27.3
agriculture, generally, Sec. Sec. 27.4-27.8
``any'' appropriation, limitation on, Sec. 27.18
any other source, funds from, Sec. 27.15
authorization, restriction on, rather than appropriation,
Sec. 27.13
bill, limitation must be applicable solely to funds in,
Sec. Sec. 27.5-27.8
budget, availability of funds made dependent on status of,
Sec. Sec. 48.9-48.11
Capitol, improvement of, Sec. 27.22
compensation, limitation on total, rather than on funds, Sec. 27.10
conditions relating to aggregate expenditures, availability of
funds made subject to, Sec. Sec. 48.9-48.11
contribution to international organization, Sec. 27.14
corporate funds other than those appropriated, restriction on,
Sec. Sec. 27.2, 27.3
Cuba, trade with, Sec. 27.13
deferral, disapproval of, Sec. 29.30
education grants, restricting amounts for, Sec. 27.29
enactment, no appropriation after date of, Sec. 27.17
``funds provided,'' limitation on, Sec. 27.22
future funds, restriction on, Sec. 27.4
head funds ``under this,'' restriction on, Sec. 27.9
``hereafter'' appropriated, funds, Sec. 27.25
maintenance of property, acquisition contingent upon prior
appropriation for, Sec. 27.28
military pay, Sec. 27.10
no fund in this or any other act, Sec. Sec. 27.19, 27.20
no part of any available funds, Sec. Sec. 27.16-27.18
permanence, words of, Sec. 27.25
President, affirmative direction to, Sec. 27.29
previous appropriations, Sec. 27.21
prior limitation, change of, Sec. 27.26
property, acquisition of, contingent upon prior appropriation for
maintenance, Sec. 27.27
ratio of U.S. contribution to international organizations to total,
Sec. 27.14
social security, Sec. 27.9
Tennessee Valley Authority, Sec. Sec. 27.11, 27.12
termination of existing revolving fund, Sec. Sec. 27.23, 27.24
trade with Cuba, Sec. 27.13
U.N., restriction on ``contribution to,'' Sec. 27.28
``General'' appropriation bills, rule applicable to, Sec. 1.1
Grounds, various, points of order based on, Sec. 2.20
Health, provisions relating to, as affecting duties of officials
abortion, determinations to be made prior to, Sec. Sec. 52.30,
52.33, 52.44, 53.4, 53.5, 61.13
[[Page 5206]]
Indian health services, Sec. 61.10
motive or intent, determination of, Sec. 61.13
prior appropriation acts, duties already being performed pursuant
to provisions in, Sec. 61.14
``Hereafter,'' provision applicable, Sec. Sec. 22.24, 64.21
``Hereafter,'' provision requiring policy to be followed, Sec. 46.3
Holman rule, provisions not within
aliens, denial of status to, Sec. 5.16
certainty of reduction must appear, Sec. Sec. 5.1-5.5
conjectural, reduction cannot be, Sec. Sec. 5.4, 5.7, 5.8
contingent on event, reduction cannot be, Sec. 5.3
continuing construction project, Sec. 5.8
contract authorization, change in, Sec. 5.13
definite, reduction not, Sec. Sec. 5.4-5.8
germane, language of retrenchment must be, Sec. Sec. 5.9, 5.15
limitation, Holman exception distinguished from, Sec. 5.17
``net'' savings, hypothetical, Sec. 5.18
private party, costs shifted from government to, Sec. 5.11
reappropriations not necessarily a retrenchment, Sec. 5.9
reduction based on budget estimates, Sec. 5.6
reimbursement to Treasury from receipts, Sec. 5.10
speculative, reduction cannot be, Sec. Sec. 5.6, 5.7
supplemental funding, Sec. 5.14
termination of employment, Sec. 5.12
Holman rule, provisions within
generally, Sec. Sec. 4.1, 4.2
abolishing offices, Sec. Sec. 4.1, 4.2
ceiling on employment, Sec. 4.4
exception from a limited use, Sec. 4.8
exception from retrenchment, Sec. 4.7
reducing funds and prohibiting use for particular purpose, Sec. 4.6
reduction in number of naval officers, Sec. 4.3
total appropriation, reduction of, Sec. 4.5
use of funds for particular purpose, prohibiting, Sec. 4.6
Houses, amendments between, see, for example, Senate amendments
Housing, provisions relating to, as changing existing law
contract authority, restriction of, Sec. Sec. 45.1, 45.3
mortgages, directing agency action with respect to sale of,
Sec. 45.4
restrictions on use of appropriations, Sec. 45.1
units, total number of housing, in current and future fiscal years,
Sec. 45.2
Incorporating legislative language by reference, Sec. Sec. 22.5, 22.6
Incorporating or restating existing law
authorization bill, language of, limitation restating, Sec. 23.24
authorization for project, granting, Sec. 23.5
descriptive language not derived from existing law, use of,
Sec. 23.2
determination already required by law, exception to limitation if
President makes, Sec. 23.23
discretion bestowed by law, limiting, Sec. 23.14
discretion, restriction of, Sec. 23.8
duty of making new determination ``in accordance with existing
law,'' provision requiring, Sec. 23.19
[[Page 5207]]
electrification, rural, modification of authority in law regarding,
Sec. 23.15
exception from limitation applying standard of existing law,
Sec. 23.17
exception to limitation if President makes a determination already
required by law, Sec. 23.23
executive order, denial of funds to implement, Sec. 23.22
funds, other, restatement of law as applying to, Sec. 23.11
funds, restriction on, which requires finding of intent not
required by law, Sec. 23.18
law, restriction of funds based on determinations already required
by, Sec. 23.21
legal authority, language conforming to, Sec. 23.22
mandating full funding levels, Sec. 23.4
modification of law by eliminating exception, Sec. 23.14
necessary, language as not, Sec. Sec. 23.6, 23.7
presumption of new legislative effect (authority to enter into
contracts), Sec. 23.3
reference as merely descriptive, Sec. Sec. 23.1, 23.2
reference, incorporation by, Sec. 22.5
Renegotiation Act incorporated by reference, Sec. Sec. 23.16, 46.11
Renegotiation Act made applicable to contracts under the
appropriation, Sec. 23.16
restatement of law as applying to other funds, Sec. 23.11
restrictive modification (rural electrification), Sec. 23.15
sense of Congress, provision stating, as reiteration of policy
stated in existing law, Sec. Sec. 23.12, 23.13
unnecessary language, Sec. Sec. 23.6, 23.7
use of funds, restriction on, Sec. 23.20
``where authorized by law,'' language implying cooperation with
other government agencies, Sec. 23.20
Increasing amount beyond authorization
generally, Sec. 21.1
committee funds above authorized level, Sec. Sec. 21.4, 1.5
lump sum increased beyond authorization, Sec. 21.2
lump sum, part of, unauthorized, Sec. 21.3
Increasing limits of authorization set in law census work, Sec. 33.5
housing assistance, increase in contract authority affecting,
Sec. 33.6
indefinite appropriation where authorization requires definite
amount, Sec. 33.1
limitation in permanent law waiving, Sec. 33.2
rural electrification, Sec. 33.4
rural telephone borrowing authority, increasing limitation on,
Sec. 33.3
Increasing limits on expenditures, Sec. 3.27
Interior Department, provisions relating to, as affecting duties of
officials
``advantageous,'' funds available if determined to be, Sec. 62.2
discretionary authority, grant of, Sec. Sec. 62.5, 62.8
educational lectures in parks, discretion of Secretary as to,
Sec. 62.6
electric power needs, determination of, Sec. 62.3
historic preservation, limiting authority of Secretary with respect
to, Sec. 62.11
[[Page 5208]]
Indians, advance of funds to, to be reimbursable under prescribed
regulations, Sec. 62.10
Indian tribal councils, expenses of, approved by Commissioner,
Sec. 63.15
Indian tribal organizations, expenses of, Sec. 62.7
regulations by Secretary, appropriation available pursuant to,
Sec. 62.1
report by Secretary required, Sec. 62.9
state officials, requiring approval of project by, Sec. 62.4
Interior Department, unauthorized appropriations relating to, see
specific topics under Unauthorized purposes, rule prohibiting
appropriations for
Interior, Secretary of, given authority to approve title to real
estate, Sec. 46.9
Interior, Secretary of, lien on real estate created when reimbursement
not collected by, Sec. 46.10
Item veto authority to President, Sec. 46.6
Justice, Department of, unauthorized appropriations relating to, see
specific topics under Unauthorized purposes, rule prohibiting
appropriations for
Labor
denying fund availability to beneficiary already receiving another
entitlement, Sec. 61.21
food stamps, eligibility for, where principal wage earner is on
strike, Sec. 61.23
limitations allowed, Sec. Sec. 73.9-73.12
limiting funds for certain ascertainable class of employers,
Sec. 61.18
Occupational Safety and Health Act, limitations relating to
enforcement of, allowed, Sec. Sec. 73.9-73.11
``propriety'' and ``effectiveness,'' evaluation of, Sec. 61.20
small firms, limiting funds to administer or enforce law with
respect to, Sec. 61.22
transfer of funds by Secretary of Labor with approval of Bureau of
the Budget, Sec. 61.17
unemployment compensation, grants for, allowed to extent Secretary
finds necessary, Sec. 61.19
Language in appropriation bill as permitted by authorizing statute, see
Authorizing statute as permitting certain language in appropriation
bill
Legislation on appropriation bills, see specific topics; see also
Unauthorized purposes, application of rule prohibiting
appropriations for
Legislative language permitted to remain, amendment of, see Perfecting
text permitted to remain
Lien against real estate, provision creating, where reimbursement for
irrigation required, Sec. 46.10
Lien imposed on Indian lands until obligation paid, Sec. 46.13
Limitation contained in prior law, changing, Sec. Sec. 22.10, 22.23
Limitation, germaneness of, to text of bill, Sec. 27.21
Limitation, language of, as constituting new authority, Sec. 46.5
Limitation on expenditures contained in prior appropriation bill,
amendment seeking to change, Sec. Sec. 22.10, 22.23
Limitation on total amount appropriated by bill
aggregate expenditures, limitation on availability of funds subject
to, Sec. Sec. 48.9, 48.11, 80.1, 80.2
[[Page 5209]]
ceiling notwithstanding appropriation, Sec. 80.4
ceiling on total expenditure, Sec. 80.2
ceiling, reference to President's budget for determination of,
Sec. 80.3
effect on total expenditures, Sec. Sec. 80.1, 80.2
fiscal year, funds obligated in last two months of, Sec. 80.5
percentage reduction across board, Sec. 80.6
President, authority given to, to make reductions, Sec. 80.6
reductions, authority given to President to effect, Sec. 80.6
Limitation, procedure for offering, Sec. 1.5
Limitations allowed: generally
introduction: rule stated, Sec. Sec. 64.1, 64.2
aggregate expenditures, availability of particular funds made
dependent on, Sec. 48.9
aliens, readmission of, Sec. 79.6
Attorney General's authority, Sec. 79.1
bill, limitation must apply only to funds in, Sec. Sec. 64.3, 64.5
bill, restricting funds for purpose not funded in, Sec. Sec. 64.6-
64.8
budget, President's, ceiling on expenditure related to aggregate
level provided in, Sec. 48.10
burden of proof as to whether language ``changes existing law,''
Sec. 64.23
commingled funds, limiting, Sec. 64.24
committee report as containing limitations, Sec. 64.9
communist countries, extension of credit to, by Export-Import Bank,
Sec. 63.6
condition subsequent, provision stating, in that obligation is
terminated on occurrence of future events, Sec. 64.10
condition subsequent, provision stating, in that obligation is
triggered by future event, Sec. 64.11
congressional expenditures, Sec. 79.2
contracts, unsatisfied, limitation resulting in, Sec. 64.25
discretion, limitation interfering indirectly with, Sec. 64.26
discretion, official, restriction on use of funds allowed even
though limiting, Sec. Sec. 51.9, 51.10, 51.13, 51.14
duties, incidental, imposition of, Sec. Sec. 52.4, 52.5, 65.1,
67.19-67.21, 71.2
duty of construing statute, effect of imposing, Sec. 64.30
exceptions from limitations, Sec. Sec. 64.12-64.15
executive office, person holding two positions in, Sec. 79.3
executive privilege, persons claiming, Sec. 79.3
fiscal year, limiting funds in ``any,'' Sec. 64.17
grants, state and local administration of, Sec. 79.9
Internal Revenue Service ruling, use of funds prohibited to
enforce, Sec. 64.27
National Aeronautics and Space Administration, funds for, not to be
used for joint U.S.-Soviet mission, Sec. 63.9
National Aeronautics and Space Administration, notification of
expenditures given by, funds not to be used until 14 days
after, Sec. 63.10
negative prohibition rather than affirmative direction, limitation
as, Sec. 52.23
notification required by law, amendment prohibiting use of funds
for specified time period after, Sec. 64.11
[[Page 5210]]
policy, change in, by negative restriction on use of funds,
Sec. Sec. 46.22, 51.15-51.17, 52.7
Presidential emergency funds, Sec. 79.4
regulation, changing, restricting use of funds for, Sec. 64.29
regulation, restricting funds used for enforcing, Sec. 64.28
regulations, proposed, not to be enforced, Sec. 79.7
salaries, prohibiting funds for, for carrying out certain programs,
Sec. 64.16
silver certificates, printing of, Sec. 79.5
state and local administration of grants, Sec. 79.9
supplies of goods or services, certain, funds prohibited for
purchases from, Sec. 54.2
Tennessee Valley Authority services, Sec. 79.8
time for offering amendment, Sec. 64.18
timing of expenditures, Sec. 63.10
total expenditures, availability of particular funds made dependent
upon, Sec. 48.9
transfer of funds to activities funded in paragraph, restriction
on, Sec. 64.20
when amendment may be offered, Sec. 64.18
Limitations allowed: agriculture, provisions relating to
authorization ceiling, absence of, Sec. 67.24
Commodity Credit Corporation employee salary, Sec. 67.22
Commodity Credit loans, limits on, Sec. Sec. 67.26-67.33
conservation, Sec. Sec. 67.12, 67.13
contract authority, restriction on, Sec. 67.34
crop insurance program expenses to be paid from premium income,
Sec. 67.11
dissemination of market information, Sec. 67.9
duties, incidental, imposition of, Sec. Sec. 67.19, 67.21
electrification, rural, Sec. Sec. 67.4, 67.5
foreign countries, technical assistance to, Sec. 67.10
legislation, subsequent enactment of, restriction effective upon,
Sec. 67.2
loans under farm programs, limits on payments on, Sec. Sec. 67.26-
67.33
motor vehicles, purchase of, Sec. 67.36
parity payments, limits on, Sec. 67.25
parity ratio, Sec. 67.15
policy, administrative, change in, Sec. 67.1
price support programs, Sec. Sec. 67.6, 67.16, 67.25-67.33
programs, farm, limits on payments or loans under, Sec. Sec. 57.5,
67.6, 67.26-67.33
recipients with income in excess of certain limit, Sec. 67.3
reserve program, limits on payments under, Sec. Sec. 67.28, 67.35
rural electrification, administrative services related to
construction of facilities for, Sec. 67.5
rural electrification, limiting funds for, to areas of low
population, Sec. 67.4
salaries of employees who undertake certain actions, prohibitions
on, Sec. Sec. 67.17, 67.18
Soil Conservation and Domestic Allotment Act, payments under,
limited, Sec. 57.5
state law, funds barred for uses prohibited by, Sec. 67.8
stream channelization, Sec. 67.23
subsequent enactment of legislation, restriction effective upon,
Sec. 67.2
Vietnam, North, countries trading with, Sec. Sec. 57.1, 67.7
[[Page 5211]]
yearbook, agriculture, printing of, Sec. 67.14
Limitations allowed: civil liberties, provisions relating to
busing, see Busing, school
racial segregation or discrimination, Sec. Sec. 68.1-68.7
Limitations allowed: commerce, provisions relating to
airports, development of, dependent on congressional approval,
Sec. 49.4
airports, federal aid, Sec. 69.3
foreign agricultural products, purchase of, limited where domestic
supplies adequate, Sec. 69.2
highway funds, restricting, to limit vehicle weights, Sec. 69.8
Maritime Commission, construction of ships by, reimbursement by
Navy for, Sec. 69.1
Limitations allowed: defense, provisions relating to (see also
Limitations allowed: military contracts, provisions relating to)
aircraft, lighter-than-air, prohibited, Sec. 70.7
Air Force Academy construction, Sec. 70.5
alcoholic beverages, facilities selling, Sec. 70.4
compulsory college military training, Sec. 70.3
draftees, age of, Sec. 70.2
Navy shipyards, funds available for work in, Sec. 70.8
shipyards, Navy, funds available for work in, Sec. 70.8
Vietnam, funds for invasion of North, prohibited, Sec. 70.1
workers' efficiency, monitoring of, Sec. 70.6
Limitations allowed: District of Columbia, provisions relating to
airport access road, Sec. 72.4
personal services, Sec. 72.5
public assistance, Sec. 72.1
segregation, Sec. 72.2
teachers doing clerical work, Sec. 72.3
Limitations allowed: education, provisions relating to
basic opportunity grants, prohibition of, to students enrolled
prior to certain date, Sec. 73.6
building construction for Health, Education and Welfare, Sec. 73.3
busing, see Busing, school
college housing construction, Sec. 73.4
compliance with law, requirement that colleges recieving funds be
in, Sec. 63.5
discrimination, grants denied to educational institutions on
account of, Sec. 73.5
disruptive behavior on campus, withholding of funds to students
convicted of, Sec. 63.5
impacted areas, assistance to, Sec. Sec. 73.1, 73.2
Limitations allowed: federal employment, provisions relating to
abortions, health plans covering, Sec. 74.5
age, maximum, Sec. 74.1
employment, past, of heads of departments, Sec. 74.4
executive office salaries, Sec. 74.2
Hatch Act application, Sec. 74.3
strikes, funds prohibited for rehiring of workers engaged in,
Sec. 74.6
Limitations allowed: foreign relations, provision relating to
automobile industry abroad, Sec. 75.3
communist countries, extension of credit to, by Export-Import Bank,
Sec. 63.6
executive agreements, certain, funds prohibited for implementation
of, Sec. 75.2
[[Page 5212]]
government employees, former, payments on contracts to, Sec. 75.4
information, committee requests for, Sec. Sec. 75.5, 75.6
National Aeronautics and Space Administration, funds for, not to be
used for joint U.S.-Soviet mission, Sec. 63.9
nonmarket economy countries, Sec. 75.1
United Nations dues or assessments, Sec. Sec. 75.7, 75.8
Limitations allowed: health, provisions relating to
abortion services, prohibition on funds for, Sec. 73.8
abortions, insurance plans covering, Sec. 74.5
public health work, grants to states for, not to be on per capita
income basis, Sec. 77.2
Limitations allowed: Interior Department, provisions relating to
condition subsequent, finding of unconstitutionality of
authorization law as, Sec. 76.6
draft deferments, limiting, Sec. 76.5
national park roads, Sec. 76.4
reclamation projects, funds for expenses of, limited to amount not
in excess of repayments, Sec. 76.1
Reclamation, qualifications of employees in Bureau of, Sec. 76.2
reindeer industry, Sec. Sec. 76.8, 76.9
salaries for consultants, Sec. 76.7
territories and former possessions, salaries and expenses in,
Sec. 76.3
Limitations allowed: labor, provisions relating to
Occupational Safety and Health Act, enforcement of, Sec. Sec. 73.9-
73.11
Limitations allowed: military contracts, provisions relating to (see
also Limitations allowed: defense, provisions relating to
bids, low, funds prohibited for implementation of policy
interfering with acceptance of, Sec. 59.3
dispute settlement, conditions for, Sec. 71.5
duties, incidental, imposed on officials, Sec. 71.2
research and development, inventions arising from, Sec. 71.4
retired officers, funds prohibited for contracts with firms that
employ, Sec. 59.2
ship, conventional powerplant for, Sec. 71.1
subsidized commodities, resale of, Sec. 71.3
Limitations allowed: Post Office and Treasury appropriations,
provisions relating to
bulk rates for political committees, Sec. Sec. 77.8, 77.13
compensation of named persons, Sec. 77.7
customs service locations, funds prohibited for reduction of,
Sec. 77.9
exception from limitation, Sec. 77.13
foreign mails, air carriage of, Sec. 77.5
Internal Revenue Service policy, funds prohibited to enforce,
Sec. Sec. 64.27, 77.1, 77.10, 77.11
investigations, congressional, services related to, Sec. 77.6
mail seizure, Sec. 77.1
political committees, special mail rates for, Sec. Sec. 77.8, 77.13
regulations, agency, funds for proceedings related to, Sec. 77.12
silver purchase, limitation on, Sec. 77.4
states, distribution of funds to, not to be on per capita income
basis, Sec. 77.2
[[Page 5213]]
subversive activities, salaries of persons accused of, Sec. 77.3
sureties on customs bonds, Sec. 51.15
Limitations allowed: public works, provisions relating to
acceleration, Sec. 69.5
authorized projects, expenditures limited to, Sec. 69.4
highway funds, prohibition of use of, by states not meeting
standards, Sec. 69.8
highway funds restricted, Sec. 69.7
locality, funds for specified, prohibited, Sec. 69.6
matching funds required, Sec. 69.5
Tennessee Valley Authority, personal services in, Sec. 69.7
Limitations allowed: Veterans' Administration, provisions relating to
area and regional offices, Sec. 78.3
dental assistance, service-connected, Sec. 78.1
medical care for nonveterans, Sec. 78.2
Limitations, exceptions from
authorization ceiling, absence of, Sec. 66.2
busing, limitation on, exception from, Sec. 61.3
ceiling on authorization, absence of, Sec. 66.2
construing terms as ``exception,'' Sec. 66.1
duties already required by law, exception as restating,
Sec. Sec. 66.2, 66.6, 66.9
duties, new, exception as imposing, Sec. 66.5
funds for agency eliminated from bill, effect of limitation where,
Sec. 66.10
political committees, limitation on special mail rates for,
exception from, Sec. 77.13
purpose, statement of, should not accompany, Sec. 66.4
retrenchment, perfecting, Sec. Sec. 66.7, 66.8
Mandating expenditures (see also Allocation or distribution of funds
changing prescribed methods of; and see Discretion, executive,
provisions restricting or enlarging)
generally, Sec. Sec. 36.15-36.23
limitation distinguished, Sec. 36.19
Methods of financing, change in, see Change in source of appropriated
funds or in methods of financing
Mineral royalties, authority to pay, Sec. 46.7
Other acts, funds in, see Funds in other acts, provisions affecting or
affected by
Part of paragraph, point of order against, Sec. Sec. 2.4-2.7
Perfecting text permitted to remain
additional determination required to be made by officials, by
provision amending legislative language, Sec. 52.12
Budget Director, amendment imposing duties on, Sec. 52.12
Committee on Appropriations authorized on occasion to report
legislation, Sec. 3.37
contract authority, restriction on, Sec. 3.26
debate on legislation permitted to remain, recognition for,
Sec. 3.36
earmarking part of unauthorized lump sum, Sec. 3.45
exception from legislative provision, Sec. Sec. 3.23-3.25
figures, changing, in unauthorized appropriation, Sec. Sec. 3.38-
3.40, 3.42
further legislation, amendments adding, Sec. Sec. 3.18-3.22, 3.29-
3.33
[[Page 5214]]
lesser duty than that contemplated by pending legislation,
Sec. 3.41
mandating expenditures, Sec. 3.42
policy, congressional, changing statement of, Sec. 3.43
repeating existing legislation verbatim, Sec. 3.44
striking out language, Sec. 22.11
transfers between appropriations, provision permitting approval by
Director of Budget of, amendment imposing additional duties
offered to, Sec. 52.12
unauthorized appropriation, changing sum of, Sec. Sec. 3.38-3.40,
3.42
unauthorized lump sum, earmarking part of, Sec. 3.45
Permanent law, House resolution made, Sec. 22.7
Points of order
amended, bill as, point of order considered in relation to,
Sec. 2.24
amendment offered to paragraph, points of order against paragraph
must be made before, Sec. Sec. 2.21-2.23
Atomic Energy Commission, bill appropriating funds for, multiple
grounds for points of order against title of, Sec. 22.21
bill considered as read, Sec. Sec. 2.13-2.16, 2.22
bill open to amendment at any point, where, Sec. Sec. 2.14-2.16,
2.22
Chair as asking for points of order where reading dispensed with,
Sec. Sec. 2.13-2.16, 2.27
Chair as not asking for points of order during reading, Sec. 2.27
conceding, effect of, Sec. 2.3
consideration, objection to, Sec. Sec. 2.8, 2.9
grounds, several, for objection, Sec. 2.20
modified, bill as, point of order considered in relation to,
Sec. 2.24
open to points of order and to amendment at any point, where bill
is, Sec. Sec. 2.14-2.16, 2.22
paragraph headings, bill read ``scientifically'' by, Sec. 2.26
part of pararaph, against, Sec. Sec. 2.4-2.7
present form of bill, point of order considered in relation to,
Sec. 2.24
prior ruling, consideration of point of order in relation to
modified form of bill that resulted from, Sec. 2.24 reading
bill ``scientifically'' by paragraph headings, Sec. 2.26
reading, during, Sec. Sec. 2.10-2.12
reservations of, Sec. Sec. 2.1, 2.2, 2.22, 2.25
timeliness, Sec. Sec. 2.8, 2.9, 2.17-2.19, 2.21-2.23
Policy, change in, by negative restriction on use of funds, Sec. 22.22
Postal rates computation, language changing formula for, Sec. 46.8
President, duties imposed on, that are not required by existing law
(see also President's authority, provisions affecting)
communist countries, sales to, permitted where President determines
it to be in national interest, Sec. 56.8
Cuba, Presidential determination relating to aid for nations that
deal with, Sec. Sec. 56.5, 56.6
economic assistance, Presidential determination and report relating
to, Sec. Sec. 56.2, 56.3
military assistance, Presidential determination and report relating
to, Sec. 56.1
procurement from foreign firms permitted where President waives
restrictions in national interest, Sec. 56.7
sales to communist countries permitted where President determines
it to be in national interest, Sec. 56.8
[[Page 5215]]
United Arab Republic, Presidential determination relating to
assistance for, Sec. 56.4
Vietnam, North, Presidential determination relating to aid for
nations that deal with, Sec. 56.6
President's authority, provisions affecting (see also President, duties
imposed on, that are not required by existing law)
affirmative directive, Sec. 55.2, 56.2
aggressor nations, determinations to be made by President relating
to, Sec. 55.9, 55.10
certification by President following investigation of British aid
to Arab League, Sec. 55.8
condition precedent to funding, imposing duties as, Sec. 55.5
determinations to be made by President, Sec. 55.6, 55.7, 55.9,
55.10
discretionary authority, new, grant of, Sec. 55.1, 55.11
earmarking funds for use as President may direct, Sec. 55.12
limiting President's legal authority, Sec. 55.3
military procurement policies, Presidential determination as to,
Sec. 55.6
proclamation relating to foreign aggression, Sec. 55.9
report, annual, provisions requiring, Sec. 55.4
Soviet troop reductions, Presidential determination as to,
Sec. 55.7
Prior appropriation acts, amendment seeking to change limitation on
expenditures contained in, Sec. 22.10
Prior appropriation acts, inclusion of legislative language in,
Sec. Sec. 1.7, 3.17, 52.44
Property, transfers or disposition of, see Transfers or disposition of
property
Public works, provisions relating to, as changing existing law
Federal Works Administrator, delegation of authority of, Sec. 45.5
storage buildings, as adjunct to forest road construction,
Sec. 45.7
water, use of, conditioned upon compliance with state compact,
Sec. 45.6
Public works, unauthorized appropriations relating to, see specific
topics under Unauthorized purposes, rule prohibiting appropriations
for
Qualification of recipients, judging, see Recipients of funds, judging
qualifications of
Reading appropriation bills ``scientifically'' by paragraph headings,
Sec. 2.26
Reading, point of order during, Sec. 2.10-2.12
Recipients of funds, conditions imposed on, Sec. 53.1
Recipients of funds, judging qualifications of
employment, past, of heads of departments, Sec. 54.1
supplier of goods or services, qualification of, Sec. 54.2
Recommit, motion to, legislation contained in, Sec. 1.4
Recommit, motion to rise and report with recommendation to, Sec. 1.6
Reenacting limitation contained in prior law, Sec. 22.23
Reference to legislative provision elsewhere in bill, Sec. 22.8
Reimbursements
airport, receipts from operations of, to repay federal investment,
Sec. 3.10
available for administrative expenses, Sec. 38.6
[[Page 5216]]
commissary revenue, Sec. 38.4, 38.5
educational expenses, reimbursements for, Sec. 38.14
irrigation projects, Sec. 38.11
Presidential use, funds for, to be expended without reimbursement,
Sec. 38.9
refunds credited to current appropriation, Sec. 38.1
sales, crediting proceeds from, Sec. Sec. 38.2, 38.3
Tennessee Valley Authority, Sec. 38.12
travel expenses paid by states, Sec. 38.13
waived for lands not producing revenue, Sec. 38.8
waiver of reimbursement requirements in law, Sec. 38.7
Repealing existing law
contract authority, rescission of, Sec. 24.4
future authorization, ending, Sec. 24.3
prior appropriation law, repealing restriction in, Sec. 24.6
rescission of contract authority, Sec. 24.4
salaries and expenses for current year, repealing expenditure limit
on, Sec. 24.7
waiver of previous limitation, Sec. 24.5
``without regard to'' specified statutes, sums appropriated,
Sec. 24.8
Request for additional debate, point of order after, Sec. 2.17
Reservation of points of order, Sec. Sec. 2.1, 2.2
Restating existing law, see Incorporating or restating existing law
Retrenchment, see Holman rule entries
Rise and report, motion to, with recommendation of recommittal,
Sec. 1.6
Salaries and Allowances, congressional, see Congressional salaries and
allowances, provisions relating to, as changing existing law
Senate amendments (see also Conference)
amendments to, Sec. Sec. 6.1, 6.9
authority of conferees where rule waived against House provision,
Sec. 6.6
conferees authorized to agree to, Sec. 6.3, 6.4
conference agreement, amendment within, held authorized, Sec. 6.7
consideration of, in Committee of the Whole, Sec. 6.2
disagreement, Senate amendments reported in, Sec. Sec. 6.5, 6.9
germane amendment to Senate legislative amendment reported in
disagreement, Sec. 6.9
point of order against Senate amendment reported in disagreement,
Sec. 6.5
waiver of rule against House provision, conferees' authority
following, Sec. 6.6
Senate rule, Sec. 6.8
Source of appropriated funds, change in, see Change in source of
appropriated funds or in methods of financing
Special rule, legislation permitted by, see Waiver of points of order
Striking out language, Sec. 22.11
Striking out language in legislation permitted to remain, Sec. 22.11
Supplemental appropriations, generally, Sec. 1.3
Terms of bill or law, definition of, see Definition or construction of
terms of bill or law
Testimony of Congressmen, provision mandating, in specified
circumstances, Sec. 46.14
Third reading, point of order upon, Sec. 2.19
Timeliness of point of order, Sec. Sec. 2.8, 2.9
Timing of expenditures, provisions affecting, Sec. Sec. 51.23, 63.10,
64.23
[[Page 5217]]
Total amount appropriated by bill, limitation on, see Limitation on
total amount appropriated by bill
Total expenditures, availability of particular funds made dependent
upon, Sec. Sec. 48.9, 48.11
Transfer of funds not limited to same bill (see also Transfer of funds
within same bill)
agencies of government, transfer of funds to other, for authorized
work, Sec. 30.21
agency, transfer of funds specifically authorized for, to other
unspecified agencies, Sec. Sec. 30.22, 30.23
approval of committee, transfer among accounts upon, Sec. 30.24
bond proceeds, transfer from fund created from, Sec. 30.3
budget estimates submitted by President, making available other
funds by reference to, Sec. 30.13
ceiling on appropriation, lifting, Sec. 30.6
Commodity Credit Corporation, transfer from funds available to,
Sec. 30.4
continuation of availability of funds for same purpose, Sec. 30.20
continuation of previous appropriations for new purpose, Sec. 30.10
departments, transfers between, Sec. 30.16
department, transfers within, Sec. Sec. 30.14, 30.15
previous appropriation, transfer to, Sec. 30.5
previous appropriations, transfer from, Sec. Sec. 30.1, 30.2
purpose, new, for previously appropriated funds, Sec. Sec. 30.8-
30.10
purpose, new, funds in other acts available for, Sec. Sec. 30.17-
30.19
purpose of permanent appropriation, change in, Sec. 30.7
purpose, same, funds continued available for, Sec. 30.20
warrant action, appropriation continued without, Sec. Sec. 30.11,
30.12
Transfer of funds within same bill (see also Transfer of funds not
limited to same bill)
generally, Sec. Sec. 29.1-29.7
account in bill, transfer of funds to, Sec. 29.3
approval of Bureau of Budget, transfers subject to, Sec. 29.7
approval of Committee on Appropriations, transfer with, Sec. 29.12
authority, transfer granting, Sec. 29.4
Bureau of the Budget, bestowing new authority on, Sec. 29.1
carried forward for same purpose, funds, Sec. 30.19
Committee on Appropriations, transfer with approval of, Sec. 29.12
defense ``funds available'' to state, transfer of, Sec. 30.25
discretionary transfer of funds, Sec. 29.11
``funds available'' to state, transfer of, Sec. 30.25
indefinite amount, permissive authority to transfer,
Sec. Sec. 29.2-29.7
interchange of appropriations, Sec. 29.8
interchangeable, funds used, among offices with approval of Bureau
of Budget, Sec. 29.7
limiting amounts transferred within accounts in bill,
Sec. Sec. 29.5, 29.6
restrictions on transfers between accounts in paragraph,
Sec. Sec. 29.9
state, transfer of defense ``funds available'' to, Sec. 30.25
unallocated funds in pending bill, Sec. 29.10
[[Page 5218]]
Transfers or disposition of property
appropriation of property, Sec. 31.4
District of Columbia, transfer of hospitals in, between agencies,
Sec. 31.6
facilities and property rights, transfer of, Sec. 31.5
federal property, transfer of, from one agency to another without
exchange of funds, Sec. 31.1
federal property, transfer of, to territory, Sec. 31.3
hospitals, transfer of, between agencies, Sec. 31.6
Interior Department, excess property transferred to, Sec. 31.2
withheld from distribution, no property to be, Sec. 31.7
Trust, provisions affecting funds held in
District of Columbia gasoline tax fund, Sec. 28.6
farm labor supply revolving fund, Sec. 28.8
forest roads and trails, Sec. 28.2
highway trust fund, diverting from, Sec. Sec. 28.1, 28.3, 28.4
Indians' judgment fund, Sec. 28.7
unemployment trust fund, transfer from, Sec. 28.5
Unauthorized purposes, application of rule prohibiting appropriations
for
administrative expenses, incidental, authorized, Sec. 15.31
airport lighting (District of Columbia), application to provisions
affecting, Sec. 14.8
airport services, to provisions relating to, Sec. 19.4
Alaskan Highway, to provisions relating to, Sec. 19.5
Ambassadors' and Ministers' pay, Sec. Sec. 17.16, 17.17
American Legion Convention expenses in District of Columbia,
application to provisions affecting, Sec. 14.3
annual authorization for Department of Justice, Sec. 18.3
annual authorization for Department of State, requirement of,
Sec. 17.21
arms control and disarmament, Sec. 17.18
Attorneys, United States, provisions relating to training of,
Sec. 18.1
authorization not yet signed into law, Sec. Sec. 12.8-12.11
Bituminous Coal Commission, provisions affecting, Sec. 15.34
Boulder Canyon project, Sec. 15.20
branch library building in District of Columbia, application to
provisions affecting, Sec. 14.13
Broadcasting, International Board for, Sec. 17.19
buildings not approved by Public Works Committee, Sec. 19.1
Bureau of Reclamation, to provisions relating to, Sec. 19.8
Census Bureau data, to provisions affecting, Sec. 12.1
centennial of Agriculture Department, to provisions relating to,
Sec. 11.2
civil defense, to provisions relating to, Sec. 20.1
Civil Rights Commission, Sec. 18.2
Civilian Conservation Corps, liquidation expenses of, Sec. 12.7
Civilian Conservation Corps, to provisions affecting, Sec. 12.7
claims, authority to settle, Sec. 15.10
claims of prison employees in District of Columbia, application to
provisions affecting, Sec. 14.6
Commerce, Secretary of, appropriation for expenses of attendance
at meetings for, Sec. 12.6
[[Page 5219]]
Committee on Fair Employment Practice, to provisions affecting,
Sec. 13.2
compilation of consumer statistics, to provisions affecting,
Sec. 11.7
congressional parking lot, to provisions affecting, Sec. 20.3
conservation, to provisions affecting, Sec. 11.4
construction and improvement of barracks, to provisions affecting,
Sec. 13.5
contingent upon enactment of authorization, appropriation,
Sec. Sec. 7.1-7.3
cooperative range improvements, Sec. 11.3
cultural relations program, Sec. Sec. 17.10, 17.11
currencies, foreign for children's hospital in Poland, Sec. 17.5
deficits, Virgin Islands, Sec. 15.14
disarmament, Sec. 17.18
diversion dam at Missouri Basin, to provisions relating to,
Sec. 19.10
division of geography created by executive order, Sec. 15.6
division of grazing, provisions affecting, Sec. 15.11
division of investigations, to provisions affecting,
Sec. Sec. 15.12, 15.13
dutch elm disease, to provisions relating to, Sec. 11.12
education, higher, programs for, Sec. 20.17
emergencies of confidential nature, fund for, Sec. 15.12
employment of People's Counsel, Sec. 14.11
Environmental Protection Agency, funds to establish board to
review contracts of, Sec. 15.2
Environmental Protection Agency, to provisions affecting,
Sec. Sec. 15.1, 15.2
equipment expenses, to provisions affecting, Sec. 11.8
erosion, shelter-belt trees to prevent, Sec. 11.15
executive order not sufficient authorization, Sec. Sec. 7.6-7.9
farm commodities, to provisions affecting consumption of,
Sec. 11.1
federal employees, representation allowances for, Sec. Sec. 16.2,
16.3
federal employment, provisions relating to, Sec. Sec. 16.1-16.4
federal office buildings, to provisions relating to, Sec. 19.2
Fishermen's Protective Act, Sec. 17.1
foreign currency, purchase of, to provisions relating to,
Sec. Sec. 17.4, 17.5
foreign literature, translation of, to provisions relating to,
Sec. 17.7
foreign military assistance, Sec. 13.3
foreign service auxiliary, to provisions relating to, Sec. 17.14
foreign service incidental expenses, to provisions relating to,
Sec. 17.13
function of government, new, created by executive order, Sec. 15.6
gasoline tax fund, use of, for motor vehicle licenses in District
of Columbia, Sec. 14.18
gasoline tax fund, use of, for personal services in District of
Columbia, Sec. 14.16
gasoline tax fund, use of, for salaries in District of Columbia,
Sec. 14.14
gasoline tax fund, use of, for sidewalks and curbing, Sec. 14.17
gasoline tax fund, use of, for street repair and improvements,
Sec. 14.15
Geography, Division of, created by executive order, Sec. 15.6
[[Page 5220]]
Government Corporation Reserve Fund, provisions affecting,
Sec. 20.8
incidental administrative expenses authorized, Sec. 15.31
incidental expenses, to provisions relating to, Sec. 7.15
Indian affairs, to provisions affecting, Sec. Sec. 15.21-15.27
Indian agents under contract, Sec. 15.27
Indian forest lands, Sec. 15.25
Indian Tribal Councils, expenses of, Sec. 15.23
Indians, assistance to, Sec. 15.24
Indians, authorization relating to, under Snyder Act, Sec. 15.26
international arms aid, to provisions affecting, Sec. 13.3
International Broadcasting, Board for, Sec. 17.19
International Committee on Political Refugees, provisions relating
to, Sec. 17.15
International Communications Agency, Sec. 17.20
International Conference on Education, Sec. 17.12
international exhibition, to provisions relating to, Sec. 17.6
international organization, authority to join, as implying
authority for expense, Sec. 17.3
international organizations, to provisions relating to,
Sec. Sec. 17.2, 17.3
investigative staff of congressional committee, provisions
affecting, Sec. 20.2
Justice, Department of, annual authorizations required for,
Sec. 18.3
Justice Department, provisions affecting, Sec. Sec. 18.1-18.3
juvenile detention center in District of Columbia, Sec. 14.9
labor force, provisions relating to sample surveys of, Sec. 12.2
language limiting expenditures to authorized projects, Sec. 19.6
language of limitation as constituting new authority, Sec. 7.16
limit, authorized, appropriations not exceeding, Sec. 7.14
limitation on funds for unauthorized project, Sec. 15.8
lump-sum appropriation only for authorized purposes,
Sec. Sec. 7.10-7.13
Main Library Building in District of Columbia, application to
provisions affecting, Sec. 14.12
Metropolitan Washington Board of Trade, to provisions affecting,
Sec. 14.2
moth control, to provisions relating to, Sec. 11.13
NASA scientific consultations, provisions affecting, Sec. 20.9
national park, streets adjacent to, provisions relating to,
Sec. 15.15
National Resources Planning Council, provisions affecting,
Sec. 20.10
nations not authorized to receive aid, appropriations for,
Sec. 17.8
nuclear naval vessel, substituting conventional vessel for, where
both unauthorized, Sec. 13.6
Office of Corporation Counsel in District of Columbia, to
provisions affecting, Sec. 14.1
officials' expenses (Commerce Department), application to
provisions relating to, Sec. Sec. 12.5, 12.6
organic act as authorization for agriculture research and
demonstration projects, Sec. 11.11
[[Page 5221]]
overseas allowances for federal employees, provisions relating to,
Sec. Sec. 16.1, 16.2
Park Service, educational lectures of, Sec. 15.18
Park Service, educational services of, Sec. 15.17
Park Service educational services, to provisions relating to,
Sec. Sec. 15.17, 15.18
Park Service photographic supplies, to provisions relating to,
Sec. 15.19
payroll deductions in Bureau of Reclamation, authority to make,
Sec. 15.9
payroll deductions (Interior Department), to provisions affecting,
Sec. 15.10
penalty refunds, to provisions affecting, Sec. 11.6
personal services in District of Columbia, to provisions
affecting, Sec. 14.10
post office construction, to provisions relating to, Sec. 19.3
Presidential commission, funds for, Sec. 16.4
Presidential committee, appropriation for, Sec. 15.7
Presidential Committee on Education, to provisions relating to
expenses of, Sec. 20.4
Presidential directives (Interior Department), Sec. 15.7
President's emergency fund, provisions affecting, Sec. 20.12
President's wife's salary, provisions relating to, Sec. 20.13
protection of deer, to provisions affecting, Sec. 15.5
public buildings in District of Columbia, personal services in,
Sec. 14.10
public buildings, requirement for committee approval of, Sec. 19.3
public health service mineral disease treatment, provisions
relating to, Sec. 20.14
public service jobs, earmarking funds for, Sec. 20.18
Public Works Committee, buildings not approved by, Sec. Sec. 19.1,
19.2
public works, to provisions relating to, generally,
Sec. Sec. 19.1-19.3
purchase of municipal asphalt plant in District of Columbia,
application to provisions affecting, Sec. 14.19
reclamation fund, appropriations from ``general funds'' instead
of, Sec. 15.28
reclamation law, Sec. Sec. 15.28-15.31
reindeer industry in Alaska, provisions affecting, Sec. 15.33
report, submission of, as constituting authorization,
Sec. Sec. 15.29, 15.30
research on use of potatoes, to provisions affecting, Sec. 11.9
river and harbor projects, to provisions affecting,
Sec. Sec. 15.3, 15.4
rivers and harbors, Sec. 19.7
school lunch program, to provisions affecting, Sec. 11.5
school playgrounds in District of Columbia, Sec. 14.5
schools in District of Columbia, application to provisions
affecting, Sec. Sec. 14.4, 14.5
scientific and technological aid for business, to provisions
affecting, Sec. 12.4
secretary, new authority granted to, relating to incidental costs,
Sec. 15.32
Secretary of Health, Education, and Welfare, representation
expenses for, Sec. 20.19
Secretary of Interior, discretion of, in purchasing equipment,
Sec. 15.32
[[Page 5222]]
shelter-belt trees to prevent erosion, to provisions relating to,
Sec. 11.15
signed into law, authorization not yet, Sec. Sec. 12.8-12.11
Smithsonian Institution, Sec. 15.22
Soil Conservation Service, equipment expenses of, Sec. 11.8
State, Department of, requirement of annual authorization for,
Sec. 17.21
storage buildings, provisions relating to, Sec. 15.8
street lighting in District of Columbia, to provisions affecting,
Sec. 14.7
student aid, to provisions affecting, Sec. 20.15
subsequent authorization, effect of law requiring, Sec. 7.4
Surgeon General entertainment expenses, provisions relating to,
Sec. 20.16
Tariff Commission, investigations by, to provisions affecting,
Sec. 12.3
telephones in government-owned residences, to provisions relating
to, Sec. 15.16
Tennessee-Tombigbee Waterway, to provisions relating to, Sec. 19.9
Tennessee Valley Authority Act, Sec. 19.12
timber protection, Sec. 15.13
transmission lines, Bonneville power, to provisions relating to,
Sec. 19.11
travel and other expenses incidental to authorized program,
Sec. 13.4
travel and per diem in division of Department of the Interior,
Sec. 15.11
travel expenses in executive departments, provisions relating to,
Sec. Sec. 20.5-20.7
treaty, expenses incident to, Sec. 17.9
use of gasoline tax fund in District of Columbia, to provisions
affecting, Sec. Sec. 14.14-14.18
vehicles, purchase of, to provisions affecting, Sec. 11.14
Veterans' Administration, to provisions affecting, Sec. 13.1
Virgin Islands, deficits of, Sec. 15.14
Virgin Islands, to provisions affecting, Sec. 15.14
waiver of points of order against items ``not yet authorized,''
Sec. 17.5
War Mobilization, Office of, to provisions affecting incidental
expenses of, Sec. 13.4
Weather Bureau buildings, equipment and repair of, to provisions
relating to, Sec. 11.16
Unconstitutional standards, language requiring official to apply,
Sec. 22.28
Veterans, provisions affecting funds for the benefit of, as changing
existing law, Sec. Sec. 46.15-46.17
Veterans, unauthorized appropriations relating to, see specific topics
under Unauthorized purposes, rule prohibiting appropriations for
Vouchers for expenditure, sufficiency of, Sec. 22.20
Waiver of points of order (see also Perfecting text permitted to
remain)
amendment of waiver, Sec. 3.12
amendments, waiver of points of order against, Sec. 3.13
authorization, rule waiving Rule XXI pending, Sec. 3.35
class, new, added to those covered by legislative direction,
Sec. 3.34
effect of waiver, Sec. 3.14-3.16
enactment, legal effect of legislative language after, Sec. 3.17
identical language, combining, with numerical change, Sec. 3.28
[[Page 5223]]
increasing limitation on expenditures, Sec. 3.27
joint resolution, form of resolution providing for consideration
of, Sec. 3.11
special rules, by, Sec. Sec. 3.2-3.10, 64.19
striking out legislation permitted to remain and inserting
identical language with numerical change, Sec. 3.28
unanimous consent, by, Sec. 3.1
Withdrawal of reservation, point of order after, Sec. 2.18
Works in progress
``addition'' to building, Sec. 8.8
authorized, project not originally, Sec. 8.2
authorized, statutory requirement that repairs be, Sec. 8.9
commenced, when, Sec. 8.1
evidence required, Sec. Sec. 8.5-8.7
reappropriation for works in progress, Sec. 8.3
reappropriation to Public Works Administration, Sec. 8.4
statutory requirement that repairs be authorized, Sec. 8.9
unauthorized, project as originally, Sec. 8.2
[[Page 5225]]
CHAPTER 26
Unauthorized Appropriations; Legislation on Appropriation Bills
A. INTRODUCTORY MATTERS
Sec. 1. Generally; Scope
A House rule prohibits the inclusion in general appropriation bills
of ``unauthorized'' appropriations, except for works in progress, and
prohibits provisions ``changing existing law,'' usually referred to as
``legislation on an appropriation bill,'' except for provisions that
retrench expenditures under certain prescribed
conditions.(1)
---------------------------------------------------------------------------
1. Rule XXI clause 2, House Rules and Manual Sec. 834 (1985). The
``retrenchment'' provision is known as the Holman rule, and is
discussed in Sec. Sec. 4, 5, infra.
---------------------------------------------------------------------------
The statement of the rule under which most of the precedents in
this chapter were decided is as follows: (2)
---------------------------------------------------------------------------
2. See Rule XXI clause 2, House Rules and Manual Sec. 834 (1973). This
chapter discusses significant recent rulings through 1984. For
earlier treatment, see 4 Hinds' Precedents Sec. Sec. 3701-4018;
7 Cannon's Precedents Sec. Sec. 1125-1570, 1579-1720.
---------------------------------------------------------------------------
No appropriation shall be reported in any general appropriation
bill, or be in order as an amendment thereto, for any expenditure
not previously authorized by law, unless in continuation of
appropriations for such public works and objects as are already in
progress. Nor shall any provision in any such bill or amendment
thereto changing existing law be in order, except such as being
germane to the subject matter of the bill shall retrench
expenditures by the reduction of the number and salary of the
officers of the United States, by the reduction of the compensation
of any person paid out of the Treasury of the United States, or by
the reduction of amounts of money covered by the bill. . . .
On Jan. 3, 1981, the 98th Congress restructured and amended the
clause as follows: paragraph (a) retained the prohibition against
unauthorized appropriations in general appropriation bills and
amendments thereto except in continuation of works in progress;
paragraph (b) narrowed the ``Holman Rule'' exception from the
prohibition against legislation to cover only retrenchments reducing
amounts of money included in the bill as reported, and permitted
legislative committees with proper jurisdiction to recommend such
retrenchments to the Appro
[[Page 5226]]
priations Committee for discretionary inclusion in the reported bill;
paragraph (c) retained the prohibition against amendments changing
existing law but permitted limitation amendments during the reading of
the bill by paragraph only if specifically authorized by existing law
for the period of the limitation; and paragraph (d) provided a new
procedure for consideration of retrenchment and other limitation
amendments only when reading of a general appropriation bill has been
completed and only if the Committee of the Whole does not adopt a
motion to rise and report the bill back to the House.(3)
---------------------------------------------------------------------------
3. See Rule XXI clause 2, House Rules and Manual Sec. 834 (1983).
---------------------------------------------------------------------------
The broad requirement that appropriations be ``authorized'' by
prior legislation is discussed in another chapter.(4) In
practice, the concepts ``unauthorized appropriations'' and
``legislation on general appropriation bills'' have frequently been
used almost interchangeably as grounds for objection in making points
of order pursuant to Rule XXI clause 2. It can, of course, readily be
seen that an appropriation sought to be made without prior
authorization has, in a sense, the effect of legislation, particularly
in view of rulings of long standing (5) that a ``proposition
changing existing law'' may be construed to include the enactment of a
law where none exists. The two concepts are treated separately in this
chapter, however. For example, it will be seen that the objection that
an appropriation is ``unauthorized'' is frequently employed where the
general purpose of the appropriation has been authorized, but the
amount sought to be appropriated allegedly exceeds the amount
authorized.(6)
---------------------------------------------------------------------------
4. See Ch. 25, supra, discussing general principles applicable to
appropriation bills and the reporting and consideration
thereof.
5. See 4 Hinds' Precedents Sec. Sec. 3812, 3813.
6. See, for example, Sec. 21, infra.
---------------------------------------------------------------------------
Frequently, rulings on points of order will turn on whether a
proposition is in fact one of legislation, or whether it is merely a
permissible ``limitation'' on the funds sought to be appropriated. Such
limitations may validly be imposed in certain circumstances, where the
effect is not to directly change existing law. Thus, just as the House
may decline to appropriate for a purpose authorized by law, it may by
limitation prohibit the use of the money for part of the purpose while
appropriating for the remainder of it.(7) The lan
[[Page 5227]]
guage of the limitation may provide that no part of the appropriation
under consideration shall be used for a certain designated
purpose.(8)
---------------------------------------------------------------------------
7. See 4 Hinds' Precedents Sec. 3936; 7 Cannon's Precedents Sec. 1595.
8. 4 Hinds' Precedents Sec. Sec. 3917-3926; 7 Cannon's Precedents
Sec. 1580.
---------------------------------------------------------------------------
Such limitations must not be legislative in character; for example,
they must not give affirmative directions, impose new duties upon
executive officers, or by their terms restrict executive discretion to
such a degree as to constitute a change in policy rather than a matter
of administrative detail. A separate division in this chapter
(9) discusses those instances in which the Chair, usually in
response to points of order based on Rule XXI clause 2, has held that
the proposition in question was a permissible limitation on the use of
funds.(10)
---------------------------------------------------------------------------
9. See Sec. Sec. 64-79, infra.
10. A limitation may also be imposed on the total amount appropriated
by a bill. See Sec. 80, infra. Pursuant to Sec. 401(a) of the
Congressional Budget Act of 1974 (Pub. L. No. 93-344),
legislative bills authorizing contract or borrowing spending
authority must provide that such authority is available only to
the extent or in such amounts provided in appropriations acts.
Thus, a properly drafted limitation on new spending authority
may be included in a general appropriation bill if specifically
required by the act containing that contract or borrowing
authority.
---------------------------------------------------------------------------
The rule against unauthorized appropriations and legislation on
general appropriation bills is one of long standing. Its purpose has
been to prevent delay of appropriation bills because of contention over
propositions of legislation while at the same time to require prior
consideration and enactment of authorizing legislation reported by
legislative committees with legislative and oversight jurisdiction over
the policies and programs which form the basis for expenditure of
government funds.
It should be emphasized that the rule applies only to ``general''
appropriation bills. The broad question as to when a bill may be
considered a ``general'' appropriation bill, and when not, is discussed
in another chapter.(11)
---------------------------------------------------------------------------
11. See Ch. 25, supra.
---------------------------------------------------------------------------
Note: The rulings cited in this chapter are intended to illustrate
the application of the rule requiring appropriations to be based on
prior authorization. No attempt has been made to indicate whether
measures similar to those ruled upon, if offered today, would in fact
be authorized under present
laws.
-------------------
``General'' Appropriation Bills
Sec. 1.1 Restrictions imposed by Rule XXI clause 2 apply only
[[Page 5228]]
to general appropriation bills.
On May 21, 1937,(12) there was under consideration in
the Committee of the Whole a joint resolution (H.J. Res. 361) providing
for appropriations ``to continue to provide relief and work relief on
useful public projects,'' including projects previously approved for
the Works Progress Administration. The funds appropriated were to be
used ``in the discretion of and under the direction of the President.''
During consideration of the joint resolution, a point of order was
raised against the following amendment, and proceedings ensued as
indicated below:
---------------------------------------------------------------------------
12. 81 Cong. Rec. 4936, 75th Cong. 1st Sess. See also 84 Cong. Rec.
7345, 7365, 7366, 76th Cong. 1st Sess., June 16, 1939
(proceedings relating to H.J. Res. 326, the work relief and
public works appropriation bill and a point of order raised by
Mr. Claude V. Parsons [Ill.]).
For further discussion of the distinction between
``general'' appropriation bills and those not falling within
that category, see Ch. 25, supra.
---------------------------------------------------------------------------
Page 3, after line 18, insert the following: ``The funds
allocated hereunder to the Works Progress Administration shall be
so apportioned and distributed over the 12 months of the fiscal
year ending June 30, 1938, and shall be so administered during such
fiscal year as to constitute the total amount that will be
furnished during such fiscal year through such agency for relief
purposes.'' . . .
Mr. Parsons: I make the point of order that the amendment is
not in order because it is legislation on an appropriation bill.
The Chairman: (13) The Chair is ready to rule. The
bill in question is not a general appropriation bill, and therefore
clause 2 of Rule XXI does not apply. The Chair overrules the point
of order.
---------------------------------------------------------------------------
13. John J. O'Connor (N.Y.).
---------------------------------------------------------------------------
Continuing Appropriations
Sec. 1.2 Parliamentarian's Note: The rule against legislation in
appropriation bills is limited to general appropriation bills;
thus, a joint resolution continuing appropriations for government
agencies pending enactment of the regular appropriation bills,
which is not a ``general appropriation bill'' as it does not
provide appropriations on an annual basis, is not subject to the
prohibitions of Rule XXI clause 2 against legislative language.
On Sept. 21, 1967,(14) The following proceedings
occurred in the House:
---------------------------------------------------------------------------
14. 113 Cong. Rec. 26370, 90th Cong. 1st Sess.
---------------------------------------------------------------------------
Mr. [George H.] Mahon [of Texas]: Mr. Speaker, I ask unanimous
consent
[[Page 5229]]
that it may be in order on Wednesday, September 27, or any day
thereafter, for the House to consider a joint resolution making
continuing appropriations.
The Speaker: (15) Is there objection to the request
of the gentleman from Texas?
---------------------------------------------------------------------------
15. John W. McCormack (Mass.).
---------------------------------------------------------------------------
Mr. [Frank T.] Bow [of Ohio]: Mr. Speaker, reserving the right
to object, I wish to address a parliamentary inquiry to the Chair.
The Speaker: The gentleman will state his parliamentary
inquiry.
Mr. Bow: Mr. Speaker, the parliamentary inquiry is this: Is a
continuing resolution subject to amendment when it is brought onto
the floor of the House, if the amendment is germane?
The Speaker: The Chair will state that any germane amendment
will be in order. It would have to be a germane amendment.
Mr. Bow: I thank the Speaker, and I withdraw my reservation of
object.
The Speaker: Is there objection to the request of the gentleman
from Texas? . . .
Mr. [H. R.] Gross [of Iowa]: Mr. Speaker, further reserving the
right to object, may I ask the gentleman from Texas if this is the
second, third, fourth, or fifth continuing resolution?
Mr. Mahon: Mr. Speaker, this is the third continuing resolution
to be considered by the House this year.
I would also say in this case, as in former cases, that the
continuing resolution would be considered in the House under the 5-
minute rule, and I assume any relevant amendment could be offered.
Mr. Gross: This would be considered in the House under the 5-
minute rule, and any amendment that is germane could be offered?
Mr. Mahon: We have considered them heretofore under the 5-
minute rule and that would be my intention in this case. . . .
Mr. Gross: Mr. Speaker, in view of the fact that the gentleman
says the 5-minute rule will prevail and that any germane amendments
will be in order to the continuing resolution, I withdraw my
reservation of objection.
The Speaker: Is there objection to the request of the gentleman
from Texas [Mr. Mahon]?
There was no objection.(16)
---------------------------------------------------------------------------
16. Parliamentarian's Note: Had this been a general appropriation bill,
it would have been called up as a privileged bill under Rule XI
clause 22 (now clause 4), rather than by unanimous consent. See
Ch. 25, supra, for further discussion of the privileged nature
of general appropriation bills.
---------------------------------------------------------------------------
Supplemental Appropriations
Sec. 1.3 A supplemental appropriation joint resolution containing
additional funds for two agencies for the balance of the fiscal
year was held not to be a ``general'' appropriation bill within the
meaning of the rule prohibiting appropriations in general
appropriation bills for unauthorized expenditures.
On Apr. 12, 1973,(17) Mr. George H. Mahon, of Texas,
called up for
[[Page 5230]]
consideration in the House as in Committee of the Whole a joint
resolution (H.J. Res. 496) making supplemental appropriations for the
Civil Aeronautics Board and the Veterans' Administration for fiscal
year 1973.
---------------------------------------------------------------------------
17. 119 Cong. Rec. 12191, 93d Cong. 1st Sess. Permission for
consideration of this bill was granted on Apr. 10, 1973. The
bill was filed on Apr. 11, 1973, pursuant to a unanimous-
consent agreement to permit filing after adjournment. No points
of order against the bill were reserved, either at the time of
filing or at the time permission was granted for consideration
of the bill.
---------------------------------------------------------------------------
Mr. Silvio O. Conte, of Massachusetts, raised a point of order
against the appropriation for the Civil Aeronautics Board, and
proceedings ensued as indicated below:
Mr. Conte: Mr. Speaker, I raise a point of order in regard to
the payments to air carriers for an additional amount for
``payments to air carriers'' in the amount of $26,800,000, to
remain available until expended.
The point of order is that it exceeds the authority to fix
rates as set by the Congress under section 406, 72 statute 763, as
amended by 76 statute 145, 80 statute 942, and 49 U.S.C. 1376.
The law states:
The Board is empowered and directed, upon its own
initiative or upon petition of the Postmaster General or an air
carrier, (1) to fix and determine from time to time, after
notice and hearing, the fair and reasonable rates of
compensation for the transportation of mail by aircraft.
Later on, in section (b) of the same authority to fix rates,
the rate may be determined under (3):
The need of each such air carrier (other than a
supplemental air carrier) for compensation for the
transportation of mail sufficient to insure the performance of
such service, and, together with all other revenue of the air
carrier . . . .
Therefore, Mr. Speaker, I raise the point of order that this
appropriation exceeds the authorization as passed by the Congress
and signed into law by the President. . . .
The Speaker: (18) The Chair is ready to rule.
---------------------------------------------------------------------------
18. Carl Albert (Okla.).
---------------------------------------------------------------------------
The pending House joint resolution is not a general
appropriation bill. The point of order which the gentleman has made
does not apply to this pending legislation.
The Chair, therefore, overrules the point of order.
Parliamentarian's Note: This bill, containing as it did
appropriations for two agencies for the remainder of the fiscal year,
would have qualified as a ``general appropriation bill'' under the
precedents. However, the Committee on Appropriations filed the bill
under the impression it was not a general bill, and since no points of
order were reserved, none could have been pressed in Committee of the
Whole.
Legislation in Motion to Recommit
Sec. 1.4 If any portion of a motion to recommit with instruc
[[Page 5231]]
tions constitutes legislation on an appropriation bill, the entire
motion is out of order.
On Sept. 1, 1976,(19) During consideration in the House
of the legislative branch appropriation bill (H.R. 14238), a point of
order was raised and sustained against a motion to recommit as
indicated below:
---------------------------------------------------------------------------
19. 122 Cong. Rec. 28883, 28884, 94th Cong. 2d Sess. The Clerk read as
follows:
---------------------------------------------------------------------------
The Clerk read as follows:
Mr. [R. Lawrence] Coughlin [of Pennsylvania] moves to
recommit the bill, H.R. 14238, to the Committee on
Appropriations, with instructions to that Committee to report
the bill back to the House forthwith, with the following
amendments: On page 7, after line 24, insert the following new
section: . . .
``Expenditure of any appropriation contained in this Act,
disbursed on behalf of any Member or Committee of the House of
Representatives, shall be limited to those funds paid against a
voucher, signed and approved by a Member of the House of
Representatives, stating under penalty of perjury, that the
voucher is for official expenses as authorized by law: Provided
further, That any Member of the House of Representatives who
willfully makes and subscribes to any such voucher which
contains a written declaration that it is made under the
penalties of perjury and which he does not believe at the time
to be true and correct in every material matter, shall be
guilty of a felony and, upon conviction thereof, shall be fined
not more than $2,000 or imprisoned for not more than five
years, or both.''. . .
Mr. [John D.] Dingell [of Michigan]: Mr. Speaker, I make a
point of order against the motion to recommit. . . .
Mr. Speaker, the motion to recommit falls in violation of the
rules against legislation in an appropriation bill. Under the rules
of the House, Mr. Speaker, a motion to recommit is subject to the
same germaneness tests as any other amendment to a piece of
legislation.
Mr. Speaker, I therefore make a point of order against the
motion on the grounds that it constitutes an attempt to legislate
in an appropriation bill. . . .
On page 3, there is a requirement that any Member who makes a
willful statement subscribing any voucher shall be guilty of the
penalties of perjury.
This adds essentially a new amendment to the Criminal Code,
which most properly can be found in title 18 of the United States
Code, and it imposes further, Mr. Speaker, a requirement that such
act shall constitute a felony which will be punishable by not more
than $2,000 or subject to imprisonment of not more than 5 years. .
. .
Mr. Coughlin Mr. Speaker, I rise in opposition to the point of
order that has been raised. . . .
Mr. Speaker, with respect to the point of order addressed to
the execution of vouchers under penalties of perjury, that does not
impose a significant additional duty in compliance with the facts
that those vouchers must already be executed by the Members
certifying that they are for official expenses. This motion says
they would be executed under penalty of perjury.
[[Page 5232]]
The additional amendment would concede the point of order as it
applies to the second paragraph on page 3 of the motion, but I
think it would be beneficial to the Members to have that
explanation there; and I would hope that the point of order would
be withdrawn as to that point. . . .
The Speaker: (20) The Chair is prepared to rule. The
Chair is going to sustain the point of order. The gentleman from
Pennsylvania has conceded one portion of the point of order, and
with that the entire motion to recommit is subject to a point of
order.
---------------------------------------------------------------------------
20. Carl Albert (Okla.).
---------------------------------------------------------------------------
Procedure for Offering Limitations
Sec. 1.5 When a general appropriation bill has been read, or considered
as read, for amendment in its entirety, the Chair (after
entertaining points of order) first entertains amendments which are
not prohibited by Rule XXI clause 2(c), and then recognizes for
amendments proposing limitations not contained or authorized in
existing law pursuant to Rule XXI clause 2(d), subject to the
preferential motion that the Committee of the Whole rise and report
the bill to the House with such amendments as may have been agreed
to.
On Oct. 27, 1983,(1) The Committee of the Whole had
under consideration the Treasury Department and Postal Service
appropriation bill (H.R. 4139), when the following proceedings
occurred:
---------------------------------------------------------------------------
1. 129 Cong. Rec. --, 98th Cong. 1st Sess.
---------------------------------------------------------------------------
Mr. [Christopher H.] Smith of New Jersey: Mr. Chairman, would
it be in order at this time to offer a change in the language that
would not be considered under the House rules to be legislating on
an appropriations bill?
The Chairman: (2) The Chair will first entertain any
amendment to the bill which is not prohibited by clause 2(c), rule
XXI, and will then entertain amendments proposing limitations
pursuant to clause 2(d), rule XXI.
---------------------------------------------------------------------------
2. Philip R. Sharp (Ind.).
---------------------------------------------------------------------------
Mr. Smith of New Jersey: Mr. Chairman, I offer an amendment.
Mr. [Bruce A.] Morrison of Connecticut: Mr. Chairman, I reserve
a point of order against the amendment.
The Chairman: The Clerk will report the amendment.
The Clerk read as follows:
Amendment offered by Mr. Smith of New Jersey: On page 49,
immediately after line 2, add the following new section:
``Sec. 618. No funds appropriated by this Act shall be
available to pay for an abortion, or the administrative
expenses in connection with any health plan under the Federal
employees health benefit program which provides any benefits or
coverages for abortions, under such negotiated plans after the
last day of the contracts currently in force.''
[[Page 5233]]
Mr. Morrison of Connecticut: Mr. Chairman, I would like to be
heard on my point of order.
The Chairman: The Chair will hear the gentleman's point of
order.
Mr. Morrison of Connecticut: Mr. Chairman, my point of order is
that this amendment constitutes a limitation on an appropriation
and cannot be considered by the House prior to the consideration of
a motion by the Committee to rise.
The Chairman: The Chair must indicate to the gentleman that no
such preferential motion has yet been made.
The gentleman is correct that a motion that the Committee rise
and report the bill to the House with such amendments as may have
been adopted takes precedence over an amendment proposing a
limitation.
Motion to Rise and Report With Recommendation For Recommittal
Sec. 1.6 Pursuant to Rule XXI clause 2, as adopted in the 98th
Congress, a motion that the Committee of the Whole rise and report
a general appropriation bill to the House with such amendments as
may have been adopted takes precedence over an amendment proposing
a limitation not contained or authorized in existing law, after the
bill has been read for amendment in its entirety; accordingly a
motion that the Committee rise and report the bill to the House
with the recommendation that it be recommitted, with instructions
to the committee to report the bill back to the House (whether or
not forthwith) with an amendment proposing such a limitation, does
not take precedence of the motion to rise and report the bill to
the House with such amendments as may have been adopted.
The following motions were made on Sept. 19, 1983,(3)
during consideration of H.R. 3222 (Departments of Commerce, State,
Justice, and the Judiciary appropriations for fiscal 1984):
---------------------------------------------------------------------------
3. 129 Cong. Rec. --, 98th Cong. 1st Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
Mr. [Neal] Smith of Iowa moves that the Committee do now
rise and report the bill to the House with sundry amendments
with the recommendation that the amendments be agreed to and
that the bill as amended do pass.
Mr. [Robert S.] Walker [of Pennsylvania]: Mr. Chairman, I have
a preferential motion at the desk.
The Chairman: (4) The Clerk will report the
preferential motion.
---------------------------------------------------------------------------
4. George E. Brown, Jr. (Calif.).
---------------------------------------------------------------------------
The Clerk read as follows:
Mr. Walker moves that the Committee do now rise and report
the bill to the House with the recommendation that the bill, as
[[Page 5234]]
amended, be recommitted to the Committee on Appropriations
with instructions that the committee report the bill, as
amended, back to the House with the following amendment:
At the end of title II, add the following new section:
``None of the funds appropriated under this title shall be
used to prevent or in any way prohibit the implementation of
programs of voluntary school prayer and meditation in the
public schools.''
Mr. Smith made a point of order against the preferential motion on
the ground that the motion violated clause 2 of Rule XXI.
The effect of the Walker motion would have been to reverse the
precedence contemplated by Rule XXI clause 2(d) by allowing a vote on a
limitation amendment before the motion to rise and report. Accordingly,
the Chair indicated that, although a motion that the Committee of the
Whole rise and report a bill to the House with the recommendation that
the bill be recommitted is preferential to a motion to rise and report
where a bill has been read in full under the general five-minute rule
of the House,(5) instructions in a recommittal motion may
not propose an amendment which would not be in order. The Chair applied
the principle that it is not in order to do indirectly (by a motion to
recommit with instructions to report a particular amendment back to the
House) that which may not be done directly under the rules of the House
by way of amendment.
---------------------------------------------------------------------------
5. 8 Cannon's Precedents Sec. 2329.
---------------------------------------------------------------------------
On appeal, the Chair's decision was sustained by a voice vote.
Legislative Language in Prior Appropriation Acts
Sec. 1.7 The fact that legislative language may have been included in
appropriation acts in prior years applicable to funds in those laws
does not permit the inclusion in a general appropriation bill of
similar language requiring officials to make determinations not
otherwise required by law for the fiscal year in question.
The ruling of the Chair on Sept. 22, 1983,(6) as that 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, not
[[Page 5235]]
withstanding the inclusion in prior year appropriation bills of similar
legislation applicable to funds in prior years. The proceedings are
discussed in Sec. 52.44, infra.
---------------------------------------------------------------------------
6. 129 Cong. Rec. --, 98th Cong. 1st Sess.
---------------------------------------------------------------------------
CHAPTER 26
Unauthorized Appropriations; Legislation on Appropriation Bills
A. INTRODUCTORY MATTERS
Sec. 2. Points of Order; Timeliness
As all bills making or authorizing appropriations require
consideration in Committee of the Whole, it follows that the
enforcement of Rule XXI clause 2 must ordinarily occur during
consideration in Committee of the Whole, where the Chair, on the
raising of a point of order, may rule out any portion of the bill in
conflict with the rule. No report of parts of the bill thus ruled out
is made to the House. It is the practice, therefore, for some Member to
reserve points of order when a general appropriation bill is referred
to Committee of the Whole, in order that portions in violation of the
rule may be eliminated in the Committee. On one occasion where points
of order were not reserved against an appropriation bill when it was
reported to the House and referred to the Committee of the Whole,
points of order in the Committee of the Whole against a proposition in
violation of this clause were overruled, on the ground that the
Chairman of the Committee of the Whole lacked authority to pass upon
the question.(7)
---------------------------------------------------------------------------
7. See Sec. 2.1, infra.
---------------------------------------------------------------------------
General appropriation bills are read ``scientifically'' only by
paragraph headings and appropriation amounts, and points of order
against a paragraph must be made before an amendment is offered thereto
or before the Clerk reads the next paragraph heading and amount. Where
the bill is considered as having been read and open to amendment by
unanimous consent, points of order against provisions in the bill must
be made before amendments are offered, and cannot be reserved pending
subsequent action on amendments.(8)
---------------------------------------------------------------------------
8. See the discussion in House Rules and Manual Sec. 835
(1983). -------------------
---------------------------------------------------------------------------
Reservation of Points of Order
Sec. 2.1 Since points of order had not been reserved on an
appropriation bill when it was reported to the House and referred
to the Committee of the Whole, points of order against a
proposition in violation of Rule XXI clause 2 were overruled on the
ground that the Chairman lacked authority to pass upon the
question.
[[Page 5236]]
On Apr. 8, 1943, the Clerk read a provision of a bill containing
legislative and judiciary appropriations for 1944,(9) as
follows: (10)
---------------------------------------------------------------------------
9. H.R. 2409.
10. 89 Cong. Rec. 3150, 78th Cong. 1st Sess.
---------------------------------------------------------------------------
Salaries of clerks of courts: For salaries of clerks of United
States circuit courts of appeals and United States district courts,
their deputies, and other assistants, $2,542,900: Provided, That
the positions of deputy clerk of the United States district court
at Springfield, Mass., Cumberland, Md. . . . and Pueblo, Colo., are
hereby abolished and such provisions of law as require offices of
clerks of courts to be maintained at such places are hereby
repealed.
The following points of order were then made: (11)
---------------------------------------------------------------------------
11. Id. at pp. 3150, 3151.
---------------------------------------------------------------------------
Mr. [Francis E.] Walter [of Pennsylvania]: Mr. Chairman, I make
the point of order that the material contained in line 20, page 55,
down to the end of the paragraph on page 56, line 11, is
legislation on an appropriation bill.
Mr. [John J.] Cochran [of Missouri]: Mr. Chairman, I make the
point of order that there was no reservation made when this bill
was introduced with reference to points of order, and the Record
will bear me out. Therefore a point of order against anything in
the bill now is not in order.
The Chairman (12) subsequently ruled as follows:
(13)
---------------------------------------------------------------------------
12. James P. McGranery (Pa.).
13. 89 Cong. Rec. 3153, 78th Cong. 1st Sess.
---------------------------------------------------------------------------
The Chair is prepared to rule, if there is no withdrawal of the
points of order.
In this connection the Chair feels that there is a duty upon
all Members to read the rules, which are published. This is not
just mere custom, as the Chair sees it.
The Journal discloses that there were no points of order
reserved on the pending bill when it was reported to the House on
April 6, 1943.
The Chair has been very deeply impressed with the decisions on
this question which run back to 1837, particularly an opinion
expressed by Chairman Albert J. Hopkins, of Illinois, on March 31,
1896--Hinds' Precedents, volume V, section 6923--in which it was
stated:
In determining this question the Chair thinks it is
important to take into consideration the organization and power
of the Committee of the Whole, which is simply to transact such
business as is referred to it by the House. Now, the House
referred the bill under consideration to this Committee as an
entirety, with directions to consider it. The objection raised
by the gentleman from North Dakota would, in effect, cause the
Chair to take from the Committee the consideration of part of
this bill, which has been committed to it by the House. The
Committee has the power to change or modify this bill as the
Members, in their wisdom, may deem wise and proper, but it is
not for the Chairman, where no points of order were reserved in
the House against the bill. . . . The effect would be, should
the Chair sustain the point of order made by the gentleman from
North Dakota, to take from the consideration of the Committee
of the Whole a part of this bill which has been committed to it
by the House without reservation of this right to the Chairman.
[[Page 5237]]
Hopkins then held that he had no authority to sustain a point
of order against an item in the bill.
The present occupant of the chair feels constrained to follow
the precedents heretofore established and sustains the point of
order made by the gentleman from Missouri (Mr. Cochran).
Note: On occasion, a Member has by unanimous consent reserved
points of order against an appropriation bill already reported and
referred to the Calendar.(14)
---------------------------------------------------------------------------
14. See 86 Cong. Rec. 1991, 76th Cong. 3d Sess., Feb. 26, 1940.
---------------------------------------------------------------------------
Reservation of Points of Order Against Amendments
Sec. 2.2 The reservation of a point of order against an amendment to an
appropriation bill is within the discretion of the Chair. Thus,
even though a Member states that he ``will reserve a point of
order'' and then seeks the Chair's recognition to speak in
opposition to the amendment, the Chair may dispose of the point of
order first.
On June 6, 1963,(15) The Committee of the Whole was
considering H.R. 6754, a Department of Agriculture appropriation bill.
The Clerk read as follows, and proceedings ensued as indicated below:
---------------------------------------------------------------------------
15. 109 Cong. Rec. 10411, 10412, 88th Cong. 1st Sess.
---------------------------------------------------------------------------
Amendment offered by Mr. [Paul] Findley [of Illinois]: Page 33,
after line 12, insert the following:
``Sec. 607. None of the funds provided herein shall be used to
pay the salary of any officer or employee who negotiates agreements
or contracts or in any other way, directly or indirectly, performs
duties or functions incidental to supporting the price of Upland
Middling Inch cotton at a level in excess of 30 cents a pound.''
Mr. [Jamie L.] Whitten [of Mississippi]: Mr. Chairman, I make a
point of order against the amendment, but I will reserve the point
of order at this time.
The Chairman: (16) The gentleman from Mississippi
reserves the point of order.
---------------------------------------------------------------------------
16. Eugene J. Keogh (N.Y.).
---------------------------------------------------------------------------
The Chair recognizes the gentleman from Illinois. . . .
Mr. Whitten: Mr. Chairman, I rise in opposition to the
amendment.
Mr. [Paul C.] Jones of Missouri: Mr. Chairman, I want to speak
on the point of order.
The Chairman: Does the gentleman from Mississippi [Mr. Whitten]
press his point of order?
Mr. Whitten: I will not press it for the moment and yield to
the gentleman from Missouri [Mr. Jones].
The Chairman: The gentleman from Missouri has indicated he
desires to be heard on the point of order which has not been made.
Mr. Whitten: Mr. Chairman, I make the point of order, if I may.
[[Page 5238]]
The Chairman: The gentleman will state his point of order.
Mr. Whitten: Mr. Chairman, I make the point of order on the
basis that the prohibition that would be set up here would require
new duties to be performed in determining who negotiates, whether
their actions constitute negotiations, or whether their actions in
any of these particulars are in such a manner as to have their
salaries not paid, particularly in view of other laws which require
that employees of the Federal Government be paid certain specified
sums.
Mr. Chairman, it does call for new duties and there is no
limitation in its entirety.
The Chairman: Does the gentleman from Missouri [Mr. Jones]
desire to be heard on the point of order?
Mr. Jones of Missouri: I desire to be heard, Mr. Chairman, on
the point of order. . . . Mr. Chairman, I contend this is
legislation on an appropriation bill because it would prohibit the
Secretary from carrying out the duties and the authority that he
has under legislation that has not been changed. . . .
The Chairman: The Chair is prepared to rule.
The gentleman from Illinois [Mr. Findley] has offered an
amendment which provides for the insertion of a new section, which
amendment provides in words that none of the funds provided in the
pending bill shall be used to pay the salary of any officer or
employee who does certain things.
In the opinion of the Chair, that constitutes within the rules
of the House a limitation on the funds being appropriated and is a
proper form of limitation. Therefore, the Chair overrules the point
of order.
Effect of Conceding Point of Order
Sec. 2.3 Where a point of order is made against language in an
appropriation bill and the point is conceded by the Member handling
the bill, the Chair normally sustains the point of order.
On Apr. 12, 1960,(17) the Committee of the Whole was
considering H.R. 11666, a State, Justice, and Judiciary Departments
appropriation bill. The following proceedings took place:
---------------------------------------------------------------------------
17. 106 Cong. Rec. 7941, 86th Cong. 2d Sess.
---------------------------------------------------------------------------
For expenses necessary for permanent representation. . .
$1,850,000.
Mr. [H.R.] Gross [of Iowa]: Mr. Chairman, I make a point of
order against the language on page 7 beginning with line 1 and
running through line 12 on the ground that it contains an
appropriation not authorized by law.
Mr. Chairman, I call your attention to page 7 of the report on
the pending bill, H.R. 11666, which states:
The following table sets forth the amounts allowed for each
organization.
Item 7 provides $30,000 for the Interparliamentary Union.
Mr. Chairman, I also call your attention to page 1035 of the
hearings and the justification for this appropriation, from which I
read as follows:
The act of June 28, 1935, as amended by Public Law 409, ap
[[Page 5239]]
proved February 6, 1948 (22 U.S.C. 276), authorizes an amount
of $15,000 to assist in meeting the expenses of the American
group of the Interparliamentary Union for each fiscal year.
I further read from the justification to be found on the same
page:
Although the enabling legislation authorizes an
appropriation of $15,000, there is included in this request
$30,000.
Mr. Chairman, I make the point of order that this violates rule
21, paragraph 2, of Cannon's Procedures which provides that no
appropriation shall be made without prior authorization.
The Chairman: (18) Does the gentleman from New York
desire to be heard on the point of order?
---------------------------------------------------------------------------
18. W. Homer Thornberry (Tex.).
---------------------------------------------------------------------------
Mr. [John J.] Rooney [of New York]: . . . It is the fact, and
we concede, that the Interparliamentary Union, which has been in
existence for some 70-odd years, does not have an authorization for
expenditure beyond $15,000 per annum, whereas the newly created
NATO Interparliamentary Union and the Canadian Interparliamentary
Union have authorizations for $30,000. . . .
Mr. Chairman, I am now constrained to concede that the point of
order is well taken and I shall immediately offer an amendment.
The Chairman: The point of order is conceded and sustained.
Point of Order Against Part of Paragraph
Sec. 2.4 Where a point of order is made against an entire paragraph in
an appropriation bill on the ground that a portion thereof is in
conflict with the rules of the House and the point of order is
sustained, the entire paragraph is eliminated.
On July 23, 1970,(19) during consideration in the
Committee of the Whole of the Departments of Labor and Health,
Education, and Welfare appropriation bill (H.R. 18515) the following
proceedings occurred:
---------------------------------------------------------------------------
19. 116 Cong. Rec. 25634, 91st Cong. 2d Sess.
---------------------------------------------------------------------------
Mr. [Durward G.] Hall [of Missouri]: Mr. Chairman, a point of
order.
The Chairman: (20) The gentleman will state it.
---------------------------------------------------------------------------
20. Chet Holifield (Calif.).
---------------------------------------------------------------------------
Mr. Hall: Mr. Chairman, I make a further point of order under
this title and under the heading ``Office of Economic
Opportunity,'' on page 38, lines 1 through 25, including the colon
after the word ``grant'', predicated upon the fact that this is
further legislation in an appropriation bill and that it involves
specifically, Mr. Chairman, the phrase on line 14 ``and for
purchase of real property for training centers:'' and other
legislation language which is foreign to an appropriation bill. . .
.
Mr. [Carl D.] Perkins [of Kentucky]: Mr. Chairman, may I be
heard on the point of order?
The Chairman: The gentleman from Kentucky will be heard.
Mr. Perkins: Mr. Chairman, if I understand the point of order
raised by
[[Page 5240]]
the gentleman from Missouri, the gentleman moved to strike the
language on page 38 from what line through what line?
Mr. Hall: The Chair has just repeated it. Line 1, including the
title and the heading, down through the colon following the word
``grant.''
Mr. Perkins: Mr. Chairman, if I may be heard further, lines 1
through 5 including the amount authorized and appropriated,
$2,046,200,000, follows the language in the authorization bill. We
do have some new language commencing on lines 14 through 15 that is
not in the authorization bill presently, but this is the language
that has been carried on previous appropriation bills. The language
that I specifically refer to that is not in the authorization bill
is on line 14 after ``1964,'' commencing with ``and for purchase of
real property for training centers.''
Now, this language is not in the authorization bill.
The language commencing on line 18 and the rest of the
paragraph down to line 21 is language on an appropriation bill, in
my judgment, because there is nothing in the authorization bill.
But we certainly do not want the amount that is appropriated for
the economic opportunity act stricken from this bill. It is in
strict compliance with the authorization amendment.
The Chairman: The Chair is ready to rule.
There are ample precedents for ruling a complete paragraph out
of order, if any part of that paragraph is out of order. The
gentleman from Kentucky has conceded that part of it is not in
order, and therefore the Chair sustains the point of order made by
the gentleman from Missouri (Mr. Hall).
Sec. 2.5 When part of a paragraph is subject to be stricken on a point
of order as being legislation, the entire paragraph is subject to
the point of order.
On May 11, 1960,(1) During consideration in the
Committee of the Whole of the Agriculture Department appropriation bill
(H.R. 12117) the following proceedings occurred:
---------------------------------------------------------------------------
1. 106 Cong. Rec. 10032, 86th Cong. 2d Sess. See also 107 Cong. Rec.
19726, 87th Cong. 1st Sess., Sept. 15, 1961 (proceedings
relating to H.R. 9169); and 83 Cong. Rec. 652, 75th Cong. 3d
Sess., Jan. 17, 1938 (proceedings relating to H.R. 8947, a
Treasury and Post Office Departments appropriation bill.
---------------------------------------------------------------------------
The Clerk read as follows:
Marketing services: For services relating to agricultural
marketing and distribution, for carrying out regulatory acts
connected therewith, and for administration and coordination of
payments to States, $26,838,000 . . . Provided, That the
Department is hereby authorized and directed to make such
inspection of poultry products processing plants as it deems
essential to the protection of public health and to permit the
use of appropriate inspection labels where it determines from
such inspection that such plants operate in a manner which
protects the public health, and not less than $500,000 shall be
available for this purpose.
Mr. [John D.] Dingell [Jr., of Michigan]: Mr. Chairman, I make
a
[[Page 5241]]
point of order against the language beginning in line 2, page 17,
commencing with the word ``Provided,'' right down through the end
of that paragraph on page 17, line 9.
This constitutes legislation on an appropriation bill.
Mr. [Fred] Marshall [of Minnesota]: Mr. Chairman, I make a
point of order against the entire paragraph, beginning in line 15,
page 16, through line 9 on page 17, on the ground it is legislation
on an appropriation bill.
Mr. [Jamie L.] Whitten [of Mississippi]: Mr. Chairman, the
committee does not care to oppose the point of order. I do not
think there is any question but what points of order lie.
The Chairman:(2) The gentleman from Mississippi
concedes both points of order. The Chair sustains the point of
order of the gentleman from Minnesota and the entire paragraph is
ruled out as legislation.
---------------------------------------------------------------------------
2. Paul J. Kilday (Tex.).
---------------------------------------------------------------------------
Sec. 2.6 Where a point of order is made against an entire proviso on
the ground that a portion of it is subject to the point of order,
and the point of order is sustained, the entire proviso is
eliminated.
On Apr. 16, 1943,(3) The Committee of the Whole was
considering H.R. 2481, an Agriculture Department appropriation bill.
The Clerk read as follows, and proceedings ensued as indicated below:
---------------------------------------------------------------------------
3. 89 Cong. Rec. 3491-94, 78th Cong. 1st Sess.
---------------------------------------------------------------------------
To enable the Secretary to carry into effect the provisions of
sections 7 to 17, inclusive, of the Soil Conservation and Domestic
Allotment Act . . . not to exceed $50,000 for the preparation and
display of exhibits. . . . Provided further, That in order to
effect (specified reductions) such part of the funds available for
salaries and administrative expenses shall be transferred under
section 11 of the Soil Conservation and Domestic Allotment Act of
February 29, 1936, as amended, to the existing extension services
of the land-grant colleges in the several States to enable them to
carry out all necessary educational, informational, and promotional
activities in connection with such programs in these States and no
other funds than those so transferred shall be expended for such
activities . . . Provided further, That notwithstanding any other
provision of law, persons who in 1943 carry out farming operations
as tenants or sharecroppers on cropland owned by the United States
Government and who comply with the terms and conditions of the 1943
agricultural conservation program, formulated pursuant to sections
7 to 17, inclusive, of the Soil Conservation and Domestic Allotment
Act, as amended, shall be entitled to apply for and receive
payments, or to retain payments heretofore made, for their
participation in said program to the same extent as other
producers. . . .
Mr. [Hampton P.] Fulmer [of South Carolina]: Mr. Chairman, a
point of order.
The Chairman: (4) The gentleman will state it.
---------------------------------------------------------------------------
4. William M. Whittington (Miss.).
---------------------------------------------------------------------------
Mr. Fulmer: On Page 65, beginning in line 9, with the words
``Provided further,'' I make a point of order against
[[Page 5242]]
all of that section down to line 18, including the word
``activities,'' the language reading, ``Provided further,'' That in
order to effect such 50-percent reduction such part of the funds
available for salaries and administrative expenses shall be
transferred under section 11 of the Soil Conservation and Domestic
Allotment Act of February 29, 1936, as amended, to the existing
extension services of the land-grant colleges in the several States
to enable them to carry out all necessary educational,
informational, and promotional activities in connection with such
programs in these States and no other funds than those so
transferred shall be expended for such activities''; that it is the
legislation on an appropriation bill without authorization. I make
that point of order. . . .
The Chairman: The gentleman has other points of order against
the paragraph?
Mr. Fulmer: Yes.
The Chairman: Will the gentleman indicate those?
Mr. Fulmer: On page 67, line 16, down to and including line 3
on page 68, which language is as follows: ``Provided further, That
notwithstanding any other provision of law, persons who in 1943
carry out farming operations as tenants or sharecroppers on
cropland owned by the United States Government and who comply with
the terms and conditions of the 1943 agricultural conservation
program, formulated pursuant to sections 7 to 17 inclusive, of the
Soil Conservation and Domestic Allotment Act, as amended, shall be
entitled to apply for and receive payments, or to retain payments
heretofore made, for their participation in said program to the
same extent as other producers: And provided further, That no part
of such amount shall be available for carrying out the provisions
of section 202 (a) to (f) of the Agricultural Adjustment Act of
1938,'' on the ground that it is legislation on an appropriation
bill without any authorization in law. . . .
Mr. [Schuyler Otis] Bland [of Virginia]: Mr. Chairman, a
parliamentary inquiry.
The Chairman: The gentleman will state it.
Mr. Bland: Mr. Chairman, if a part of a paragraph or section in
a bill is subject to a point of order and a point of order is made
to the paragraph or section, does that not carry out the entire
paragraph or section?
The Chairman: The gentleman is correct.
Mr. [Everett M.] Dirksen [of Illinois]: Mr. Chairman, for
clarification, the point of order was not made against the entire
paragraph as I understand it.
The Chairman: The entire proviso. That is what the gentleman
had in mind?
Mr. Bland: Yes. . . .
The Chairman: The Chair is ready to rule on the first point of
order submitted by the gentleman from South Carolina [Mr. Fulmer].
. . .
The gentleman from Illinois concedes that the point of order is
sound and well taken for that part of the proviso beginning after
the word ``States'' in line 15, as follows: ``to enable them to
carry out all necessary educational, informational, and promotional
activities, that it is subject to the point of order, being
legislation upon an appropriation bill.
[[Page 5243]]
If any part of the proviso is subject to a point of order, the
whole proviso falls, therefore the Chair sustains the point of
order made by the gentleman from South Carolina [Mr. Fulmer]. . . .
Mr. [Malcolm C.] Tarver [of Georgia]: Mr. Chairman, I
understood there was a point of order against another portion of
the paragraph, the concluding proviso. I only wish to be heard at
this time on the point of order as far as it relates to the
concluding proviso, that is, on page 68, line 1:
That no part of such amount shall be available for carrying
out the provisions of section 202 (a) to (f) of the
Agricultural Adjustment Act of 1938.
Those are the provisions of the Agricultural Adjustment Act of
1938 which make available $4,000,000 from this fund for the
maintenance of the four regional laboratories. We have already
appropriated in a preceding paragraph of the bill $4,000,000, from
the Federal Treasury and not from this fund for those laboratories.
For that reason, it became necessary to provide that the same
amount should not again be made available from this particular
fund, which would result in $8,000,000 being made available to the
four regional laboratories when no such amount was estimated
therefor.
This is a limitation under the Holman rule. This simply limits
the expenditures which are authorized under this paragraph, so that
this appropriation which has already been made in a preceding
paragraph of the bill cannot be duplicated from these funds.
Mr. Fulmer: Mr. Chairman, after rereading this provision and
hearing the gentleman's argument, I confine my point of order to
the proviso on page 67 beginning in line 16 and running down
through line 25, ending with the word ``producers.'' . . .
The Chairman: The Chair is ready to rule.
The gentleman from South Carolina makes the point of order
against the language beginning in line 16 and running down to and
including the word ``producers'' in line 25 that it is legislation
on an appropriation bill. With the information available to the
Chair, the Chair is of the opinion that it is legislation on an
appropriation bill, and sustains the point of order.
Sec. 2.7 A point of order may be made against part of a paragraph
which, if sustained, would not necessarily affect the remainder of
such paragraph unless a point of order were specifically made
against the entire paragraph.
On Mar. 30, 1954,(5) the Committee of the Whole was
considering H.R. 8583, an independent offices appropriation bill. The
Clerk read as follows, and proceedings ensued as indicated below:
---------------------------------------------------------------------------
5. 100 Cong. Rec. 4108, 4109, 83d Cong. 2d Sess.
---------------------------------------------------------------------------
Capital grants for slum clearance and urban redevelopment: For
an additional amount for payment of capital grants as authorized by
title I of the Housing Act of 1949, as amended (42 U.S.C. 1453,
1456), $39,000,000, to remain available until expended: Pro
[[Page 5244]]
vided, That no funds in this or any other act shall be available
for payment of capital grants under any contract involving the
development or redevelopment of a project for predominantly
residential uses unless incidental uses are restricted to those
normally essential for residential uses: Provided further, That
before approving any local slum clearance program under title I of
the Housing Act of 1949, the Administrator shall give consideration
to the efforts of the locality to enforce local codes and
regulations relating to adequate standards of health, sanitation,
and safety for dwellings and to the feasibility of achieving slum
clearance objectives through rehabilitation of existing dwellings
and areas: Provided further, That the authority under title I of
the National Housing Act shall be used to the utmost in connection
with slum rehabilitation needs.
Mr. [Jacob K.] Javits [of New York]: Mr. Chairman, I make a
point of order against the proviso appearing on page 28, lines 13
to 18, on the ground it is legislation on an appropriation bill.
The Chairman: (6) Does the gentleman from California
desire to be heard on the point of order?
---------------------------------------------------------------------------
6. Louis E. Graham (Pa.).
---------------------------------------------------------------------------
Mr. [John] Phillips [of California]: No, Mr. Chairman. I think
we are compelled to concede the point of order and I submit an
amendment to replace it. . . .
The Chairman: The Chair sustains the point of order.
Mr. [Jamie L.] Whitten [of Mississippi]: Mr. Chairman, a
parliamentary inquiry.
The Chairman: The gentleman will state it.
Mr. Whitten: Mr. Chairman, is it possible to make a point of
order to one part of a paragraph and have it limited to that
particular part?
The Chairman: A Member may make a point of order to any
objectionable language in the paragraph.
Mr. Whitten: Separating it from the remainder of the paragraph?
The Chairman: Yes.
Timeliness--Objection to Consideration
Sec. 2.8 A point of order against consideration of a general
appropriation bill, on grounds that the total of proposed
appropriations exceeds the total amount authorized, will not lie in
the House. The proper time to demand enforcement of Rule XXI clause
2 (the rule against reporting appropriations not previously
authorized) is when such item is read for amendment in the
Committee of the Whole.
On Sept. 8, 1965,(7) the following proceedings occurred
in the House:
---------------------------------------------------------------------------
7. 111 Cong. Rec. 23140, 23141, 89th Cong. 1st Sess.
---------------------------------------------------------------------------
Mr. [Otto E.] Passman [of Louisiana]: Mr. Speaker, I move that
the House resolve itself into the Committee of the Whole House on
the
[[Page 5245]]
State of the Union for the consideration of the bill (H.R. 10871)
making appropriations for foreign assistance and related agencies
for the fiscal year ending June 30, 1966, and for other purposes;
and pending that motion, Mr. Speaker, I ask unanimous consent that
general debate on the bill be limited to 3 hours, one-half of that
time to be controlled by the gentleman from Kansas [Mr. Shriver]
and one-half to be controlled by myself.
The Speaker: (8) Is there objection to the request
of the gentleman from Louisiana?
---------------------------------------------------------------------------
8. John W. McCormack (Mass.).
---------------------------------------------------------------------------
Mr. [H. R.] Gross [of Iowa]: Mr. Speaker, reserving the right
to object, at the proper time I shall ask for recognition to make a
point of order against consideration of the bill. I should like to
be advised as to that time.
The Speaker: The Chair will say that if the unanimous-consent
request is granted the gentleman may then assert whatever he wants
to under the rules.
Is there objection to the request of the gentleman from
Louisiana?
There was no objection.
Mr. Gross: Mr. Speaker, I make the point of order against
consideration of this bill on the ground that in adoption of the
conference report by the Congress, and with the signature of the
President of the United States now a fact, and, therefore, the
authorization bill is law, it includes a new section, section 649,
which reads as follows:
Limitation on aggregate authority for use in the fiscal
year 1966. . . .
The Speaker: What is the number of that section?
Mr. Gross: Section 649.
The Speaker: Of the authorization bill?
Mr. Gross: Of the authorization bill, which reads as follows:
Notwithstanding any other provision of this act, the
aggregate of the total amount authorized to be appropriated for
use during the fiscal year 1966 for furnishing assistance and
for administrative expenses under this act shall not exceed
$3,360 million. . . .
The limitation contained in the conference report, which is now
law, is $3,360 million. The report accompanying this bill states
clearly there is sought to be appropriated by this bill
$3,630,622,000.
Mr. Passman: . . . Mr. Speaker, I should like to direct
attention to the fact that the authorization bill limited new
appropriations to $3,360 million. We are only recommending new
appropriations in the amount of $3,285 million which is $75 million
below the amount authorized.
Under section 645 of the basic act, and I quote:
Unexpended balances: Funds made available pursuant to this
Act, the Mutual Security Act of 1955, as amended, Public Law
86-735, are hereby authorized to be continued available for the
general purposes for which appropriated and may at any time be
consolidated and in addition may be consolidated with
appropriations made available for the same general purposes
under the authority of this Act.
Mr. Speaker, this is the basic legislation.
If I may make one further observation, Mr. Speaker, a good part
of the section that the gentleman is referring
[[Page 5246]]
to has to do with no-year funds anyway. The no-year funds in which
the appropriation or unexpended balance is automatically carried
forward would be $120,978,000. We have moved on the premise that
the original basic act authorized the continuation of the
unexpended or unobligated funds from previous years. . . .
Mr. Gross: Mr. Speaker, I would point out the new section
inserted in the authorization bill which has been read, and I am
sure the Speaker understands it thoroughly, makes no provision for
new funds. It says explicitly, ``notwithstanding any other
provision of this Act, the limitation is $3,360 million.''
The Speaker: The Chair is prepared to rule.
Without passing upon the question, that might arise later on,
if it does, the Chair is of the opinion that the point of order
should be made against the item or items in the appropriation bill
which the gentleman from Iowa might claim to be in excess of the
amount authorized by law, and not against the consideration of the
bill itself.
The Chair overrules the point of order.
The question is on the motion.
Sec. 2.9 A point of order against an unauthorized appropriation does
not lie in the House against consideration of a special
appropriation bill made in order pursuant to a rule reported from
the Committee on Rules.
Where the House had agreed to a resolution providing for
consideration of a joint resolution making temporary appropriations, an
objection to consideration of the joint resolution on the ground that
the authorization for the appropriations therein had expired was held
not to be in order. The proceedings on Aug. 21, 1951,(9)
during which the House was considering House Resolution 397, making in
order the consideration of House Joint Resolution 320, were as follows:
---------------------------------------------------------------------------
9. 97 Cong. Rec. 10479-81, 82d Cong. 1st Sess. See also Sec. 2.8,
supra. The point of order based on lack of authorization only
lies against an item in a general appropriation bill when that
item is read for amendment in Committee of the Whole under the
five-minute rule.
---------------------------------------------------------------------------
Mr. [Howard W.] Smith of Virginia: Mr. Speaker, I call up the
resolution (H. Res. 397) which I submitted earlier in the day,
making in order House Joint Resolution 320, and ask for its
immediate consideration.
The Clerk read the resolution as follows:
Resolved, That immediately upon the adoption of this
resolution it shall be in order to move that the House resolve
itself into the Committee of the Whole House on the State of
the Union for the consideration of the joint resolution (H.J.
Res. 320) amending an act making temporary appropriations for
the fiscal year 1952, and for other purposes. . . . At the
conclusion of the consideration of the joint resolution for
amendment, the Committee shall rise and report the joint
resolution to
[[Page 5247]]
the House with such amendments as may have been adopted and the
previous question shall be considered as ordered on the joint
resolution and amendments thereto to final passage without
intervening motion except one motion to recommit.
The Speaker: (10) The question is, Will the House
consider the resolution?
---------------------------------------------------------------------------
10. Sam Rayburn (Tex.).
---------------------------------------------------------------------------
The question was taken; and (two-thirds having voted in favor
thereof) the House decided to consider the joint resolution. . . .
[The resolution was subsequently agreed to.] (11)
---------------------------------------------------------------------------
11. 97 Cong. Rec. 10481, 82d Cong. 1st Sess.
---------------------------------------------------------------------------
Mr. [Clarence] Cannon [of Missouri]: Mr. Speaker, I move that
the House resolve itself into the Committee of the Whole House on
the State of the Union for the consideration of the joint
resolution (H.J. Res. 320) amending an act making temporary
appropriations for the fiscal year 1952, and for other purposes.
Mr. [John E.] Rankin [of Mississippi]: Mr. Speaker, I make a
point of order against consideration of the joint resolution on the
ground that the authorization has expired, and that there is no
authorization for this appropriation.
The Speaker: The resolution just adopted makes in order the
consideration of the joint resolution, and, therefore, the point of
order does not lie.
The Chair overrules the point of order.
Point of Order During Reading
Sec. 2.10 A point of order against a paragraph of a general
appropriation bill on the ground that it is legislation will not
lie until the paragraph is read; and such a point of order is not
precluded by the fact that, by unanimous consent, an amendment was
offered to the paragraph before it was read.
On July 31, 1969,(12) 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:
---------------------------------------------------------------------------
12. 115 Cong. Rec. 21677, 21678, 91st Cong. 1st Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
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. [Silvio O.] Conte [of Massachusetts]: Mr. Chairman, I raise
the point of order on section 409 on page 56 of the bill that this
is legislation on an appropriation bill. It violates section 834 of
the House rules. It does not comply with the Holman rule. It is not
a retrenchment. In fact, it adds additional burdens and additional
duties, just as the Chair ruled against my amendment to section 408
because it would require additonal personnel to determine whether
busing has been
[[Page 5248]]
used, one, for the abolishing of any school and, two, to require
the attendance of any student at any particular school. You would
have to have investigators there to determine this as a condition
precedent to obtaining Federal funds otherwise available to any
State school district or school. No. 1, for the abolition of any
school, and No. 2, whether the attendance of any student at any
particular school could be investigated there to determine this as
a condition precedent to obtaining Federal funds otherwise
available to any State, school district or school.
Therefore, Mr. Chairman, I urge the Chairman to sustain the
point of order.
The Chairman: (13) Does the gentleman from
Mississippi desire to be heard on the point of order?
---------------------------------------------------------------------------
13. Chet Holifield (Calif.).
---------------------------------------------------------------------------
Mr. [Jamie L.] Whitten [of Mississippi]: I do, Mr. Chairman.
Mr. Chairman, I raised the point awhile ago that the gentleman,
having asked unanimous consent that the amendments to the two
sections be considered en bloc and having obtained that unanimous-
consent request, and after having the amendments considered en bloc
in connection with the two sections, that the House has already
considered section 409 and the point of order comes too late. That
is the situation on the one hand.
Second, a reading of the section clearly shows that the House
has already considered section 409 in connection with the prior
amendments. In addition to that, this is clearly a limitation on an
appropriation bill and does not have to conform to the Holman rule.
. . .
The Chairman: The Chair is ready to rule.
The objection of the gentleman from Mississippi which has been
made to the effect that this section had been considered when, by
unanimous consent amendments to the two sections were considered,
does not nullify the fact that section 409 had not been read.
Therefore, when section 409 was read it was subject to points of
order.
Sec. 2.11 A point of order against a paragraph of a general
appropriation bill is not in order until that paragraph is read;
and the Chairman has declined to recognize a Member to make a point
of order against both paragraphs of a particular section when only
the first of such paragraphs has been read.
On June 4, 1970,(14) during consideration in the
Committee of the Whole of the foreign assistance appropriation bill
(H.R. 17867) the following proceedings occurred:
---------------------------------------------------------------------------
14. 116 Cong. Rec. 18403, 91st Cong. 2d Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
Sec. 107. (a) No assistance shall be furnished under the
Foreign Assistance Act of 1961, as amended, to any country
which sells, furnishes, or permits any ships under its registry
to carry to Cuba, so long as it is governed by the Castro
regime, in addition to those items contained on the list
maintained by the Administrator pursuant to title I of the
Mutual Defense Assistance Control Act of 1951, as amended, any
arms, ammunition, implements of war, atomic energy
[[Page 5249]]
materials, or any other articles, materials or supplies of
primary strategic significance used in the production of arms,
ammunition, and implements of war or of strategic significance
to the conduct of war; including petroleum products.
Mr. [Peter H. B.] Frelinghuysen [of New Jersey]: Mr. Chairman,
I make a point of order against section 107(a) on the ground that
it is legislation in an appropriations bill.
The Chairman: (15) Does the gentleman make his point
of order against the entire section?
---------------------------------------------------------------------------
15. Hale Boggs (La.).
---------------------------------------------------------------------------
Mr. Frelinghuysen: When I get the opportunity, I shall
certainly make the point of order against section (b) also. If it
is in order, I shall be glad to make the point of order against
both sections (a) and (b) at this time.
The Chairman: The Chair would prefer to rule on the sections
separately. The gentleman has made a point of order against section
107(a). The Chair will hear the gentleman.
Sec. 2.12 A point of order against language in a general appropriation
bill comes too late after the reading of the subsequent paragraph.
On June 6, 1963,(16) during consideration in the
Committee of the Whole of the Agriculture Department appropriation bill
(H.R. 6754) proceedings occurred as indicated below:
---------------------------------------------------------------------------
16. 109 Cong. Rec. 10398, 88th Cong. 1st Sess. See also 109 Cong. Rec.
24752, 88th Cong. 1st Sess., Dec. 16, 1963 (H.R. 9499).
---------------------------------------------------------------------------
Mr. [Paul] Findley [of Illinois]: Mr. Chairman, I make the
point of order against the language on page 17, line 5, beginning
with the word ``and'' and all that follows through the period on
line 11, on the ground it is legislation on a general appropriation
bill.
The Chairman: (17) The Chair may say to the
gentleman from Illinois that his point of order comes too late. The
Clerk has reached page 19.
---------------------------------------------------------------------------
17. Eugene J. Keogh (N.Y.).
---------------------------------------------------------------------------
Bill Considered as Read
Sec. 2.13 Where all of a general appropriation bill (and not just the
portion not yet read), was, by unanimous consent, considered as
read and open to points of order and amendment at any point, the
Chairman sustained a point of order against a provision conceded to
be legislation in a paragraph which had been passed in reading for
amendment when the unanimous-consent request was agreed to.
On June 7, 1972,(18) during consideration in the
Committee of the Whole of the District of Columbia appropriation bill
(H.R. 15259), the following proceedings occurred:
---------------------------------------------------------------------------
18. 118 Cong. Rec. 19900, 19901, 92d Cong. 2d Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
General Operating Expenses
General operating expenses, $65,029,000, of which $629,700
shall
[[Page 5250]]
be payable from the highway fund (including $72,400 from the
motor vehicle parking account), $94,500 from the water fund,
and $67,300 from the sanitary sewage works fund. . . .
Mr. [William H.] Natcher [of Kentucky] (during the reading):
Mr. Chairman, I ask unanimous consent that the bill be considered
as read, open to amendment at any point, and subject to any points
of order.
The Chairman: (19) Is there objection to the request
of the gentleman from Kentucky?
---------------------------------------------------------------------------
19. Dante B. Fascell (Fla.).
---------------------------------------------------------------------------
There was no objection.
Mr. [Durward G.] Hall [of Missouri]: Mr. Chairman, I raise a
point of order.
The Chairman: The gentleman from Missouri will state his point
of order.
Mr. Hall: Mr. Chairman, my point of order should lie on page 3,
line 8, following the colon, against the phrase:
Provided, That the certificates of the Commissioner (for
$2,500) and of the Chairman of the City Council (for $2,500)
shall be sufficient voucher for expenditures from this
appropriation for such purposes, exclusive of ceremony
expenses, as they may respectively deem necessary:
In other words, Mr. Chairman, I am raising a point of order
against all after the colon on line 8, through the colon on line
13.
This was not authorized, and it is an appropriation bill
without authorization.
The Chairman: The Chair will state to the gentleman from
Missouri that that part of the bill to which the gentleman has
raised his point of order was previously read prior to the
unanimous-consent request.
Mr. Hall: But, Mr. Chairman, I submit that the unanimous-
consent request was granted to the entire bill, that it be open to
amendment and open for points of order at any point. This request
was granted and therefore I have gone back to this point of order.
The Chairman: Does the gentleman from Kentucky desire to be
heard on the point of order raised by the gentleman from Missouri?
Mr. Natcher: Mr. Chairman, the gentleman from Missouri [Mr.
Hall] is correct, and we concede the point of order.
The Chairman: The point of order is conceded, and the point of
order is sustained.
Are there any further points of order?
Are there any amendments to be proposed?
Bill Opened for Amendment at Any Point
Sec. 2.14 Where an appropriation bill partially read for amendment is
then opened for amendment ``at any point'' (rather than for ``the
remainder of the bill''), points of order to paragraphs already
read may yet be entertained.
On June 7, 1972,(20) in a paragraph appropriating funds
for
[[Page 5251]]
general operating expenses for the District of Columbia, a proviso
stating that certificates of the Commissioner and Chairman of the City
Council shall be sufficient vouchers for expenditure from that
appropriation was conceded to be legislation in violation of Rule XXI
clause 2 and was ruled out on a point of order. The part of the bill
against which the point of order was directed had been read prior to a
unanimous-consent request that the bill be open for amendment at any
point.
---------------------------------------------------------------------------
20. 118 Cong. Rec. 19900, 19901, 92d Cong. 2d Sess.
---------------------------------------------------------------------------
Mr. [Durward G.] Hall [of Missouri]: Mr. Chairman, I raise a
point of order.
The Chairman: (1) The gentleman from Missouri will
state his point of order.
---------------------------------------------------------------------------
1. Dante B. Fascell (Fla.).
---------------------------------------------------------------------------
Mr. Hall: Mr. Chairman, my point of order should lie on page 3,
line 8, following the colon, against the phrase:
Provided, That the certificate of the Commissioner (for
$2,500) and of the Chairman of the City Council (for $2,500)
shall be sufficient voucher for expenditures from this
appropriation for such purposes, exclusive of ceremony
expenses, as they may respectively deem necessary. . . .
In other words, Mr. Chairman, I am raising a point of order
against all after the colon on line 8, through the colon on line
13.
This was not authorized, and it is an appropriation bill
without authorization.
The Chairman: The Chair will state to the gentleman from
Missouri that that part of the bill to which the gentleman has
raised his point of order was previously read prior to the
unanimous-consent request.
Mr. Hall: But, Mr. Chairman, I submit that the unanimous-
consent request was granted to the entire bill, that it be open to
amendment and open for points of order at any point. This request
was granted and therefore I have gone back to this point of order.
The Chairman: Does the gentleman from Kentucky desire to be
heard on the point of order raised by the gentleman from Missouri?
Mr. [William H.] Natcher [of Kentucky]: Mr. Chairman, the
gentleman from Missouri (Mr. Hall) is correct, and we concede the
point of order.
The Chairman: The point of order is conceded, and the point of
order is sustained.
Are there any further points of order?
Are there any amendments to be proposed? (2)
---------------------------------------------------------------------------
2. See also 119 Cong. Rec. 20068, 93d Cong. 1st Sess., June 18, 1973
[H.R. 8658].
---------------------------------------------------------------------------
Sec. 2.15 Where the Committee of the Whole has granted unanimous
consent that the remainder of a general appropriation bill be
considered as read and open to points of order or amendment at any
point, the Chair first inquires whether any Member desires to raise
a point of order against any portion of
[[Page 5252]]
the pending text, and then recognizes Members to offer amendments
to that text.
On Feb. 19, 1970,(3) during consideration in the
Committee of the Whole of the Departments of Labor and Health,
Education, and Welfare appropriation bill (H.R. 15931) the following
proceedings occurred:
---------------------------------------------------------------------------
3. 116 Cong. Rec. 4019, 91st Cong. 2d Sess. See also Sec. 2.22, infra,
as to the proper time for making points of order against
provisions of the bill where the bill is considered as read and
open to points of order and amendments at any point.
---------------------------------------------------------------------------
Mr. [Daniel J.] Flood [of Pennsylvania] (during the reading):
Mr. Chairman, I ask unanimous consent that the remainder of the
bill be considered as read and open to points of order or amendment
at any point.
The Chairman: (4) Is there objection to the request
of the gentleman from Pennsylvania?
---------------------------------------------------------------------------
4. Chet Holifield (Calif.).
---------------------------------------------------------------------------
There was no objection.
The Chairman: Are there any points of order?
Mr. [James G.] O'Hara [of Michigan]: Mr. Chairman, I rise to
make a point of order against the language contained in section
411, beginning on line 12, through line 20 on page 61, which reads
as follows:
Sec. 411. In the administration of any program provided for
in this Act, as to which the allocation, grant, apportionment,
or other distribution of funds among recipients is required to
be determined by application of a formula involving the amount
appropriated or otherwise made available for distribution, the
amount available for expenditure or obligation (as determined
by the President) shall be substituted for the amount
appropriated or otherwise made available in the application of
the formula.
Mr. Chairman, I make the point of order on the ground that the
section in question constitutes legislation on an appropriation
bill and does not come within the exception.
The Chairman: Does the gentleman from Pennsylvania desire to be
heard on the point of order?
Mr. Flood: Mr. Chairman, the language is patently legislation
on an appropriation bill. I concede the point of order.
The Chairman: The gentleman from Pennsylvania concedes the
point of order, and the Chair sustains the point of order.
Mr. [Neal] Smith of Iowa: Mr. Chairman, I make a point of order
against the language on page 57, lines 9 through 16, which reads as
follows:
Provided further, That those provisions of the Economic
Opportunity Amendments of 1967 and 1969 that set mandatory
funding levels, including mandatory funding levels for the
newly authorized programs for alcoholic counseling and recovery
and for drug rehabilitation, shall be effective during the
fiscal year ending June 30, 1970: Provided further, That of the
sums appropriated not less than $22,000,000 shall be used for
the family planning program.
Mr. Chairman, I make the point of order on the ground that it
is legislation on an appropriation bill.
The Chairman: The gentleman will state his point of order.
[[Page 5253]]
Mr. Smith of Iowa: Mr. Chairman, the point of order is that it
is legislation on an appropriation bill.
The Chairman: Does the gentleman from Pennsylvania desire to be
heard on the point of order?
Mr. Flood: Not on this point, Mr. Chairman; no.
The Chairman: Does the gentleman from Michigan seek recognition
on this point of order:
Mr. O'Hara: I do, Mr. Chairman.
Mr. Chairman, it seems to me the amendment simply restates
existing law in the authorizing legislation, and if that is indeed
the case, I do not think it is subject to a point of order.
The Chairman: The Chair will say that if this restates existing
law, there is no point in it being in the bill, and the fact that
it is in the bill on its face would indicate there must be
legislation in it in addition to that contained in existing law.
The Chair, therefore, sustains the point of order.
Are there any further points of order?
The Chair will recognize at this time Members who wish to offer
amendments.
Sec. 2.16 A point of order against language in an appropriation bill
comes too late when the Committee of the Whole has granted
unanimous consent that the remainder of the bill be considered as
read and open at any point to points of order or to amendments and
the Chairman has asked for amendments after having asked for points
of order.
On Aug. 19, 1949,(5) the Committee of the Whole was
considering H.R. 6008, a supplemental appropriation bill. The
proceedings were as follows:
---------------------------------------------------------------------------
5. 95 Cong. Rec. 11870, 11876, 81st Cong. 1st Sess. See also
Sec. 2.22, infra, as to the proper time for making points of
order against provisions of the bill where the bill is
considered as read and open to points of order and amendments
at any point.
---------------------------------------------------------------------------
Mr. [Louis C.] Rabaut [of Michigan]: Mr. Chairman, I ask
unanimous consent that the remainder of the bill be considered as
read and be open at any point to points of order and amendments.
The Chairman: (6) Is there objection to the request
of the gentleman from Michigan?
---------------------------------------------------------------------------
6. Aime J. Forand (R.I.).
---------------------------------------------------------------------------
There was no objection.
The Chairman: Are there any points of order?
If not, are there any amendments?
Mr. [William M.] Wheeler [of Georgia]: Mr. Chairman, I offer an
amendment.
The Clerk read as follows:
Amendment offered by Mr. Wheeler: On page 6, line 17,
strike out all the paragraph to and including all of lines 16
on page 7. . . .
Mr. [James P.] Sutton [of Tennessee]: Mr. Chairman, a point of
order.
The Chairman: The gentleman will state it.
Mr. Sutton: Mr. Chairman, I make the point of order against the
language on page 19 that it is legislation on an appropriation
bill.
[[Page 5254]]
The Chairman: The point of order comes too late. At the time
the further reading of the bill was dispensed with, the Chair
requested Members desiring to make points of order to do so at that
time.
After Request for Additional Debate
Sec. 2.17 After an amendment to an appropriation bill has been read by
the Clerk and a reservation of objection has been made against a
unanimous-consent request for an additional five minutes' debate,
it has been held to be too late to raise a point of order against
the amendment.
On Feb. 1, 1938,(7) The Committee of the Whole was
considering H.R. 9181, a District of Columbia appropriation bill. The
Clerk read as follows, and proceedings ensued as indicated below:
---------------------------------------------------------------------------
7. 83 Cong. Rec. 1364, 75th Cong. 3d Sess.
---------------------------------------------------------------------------
Amendment offered by Mr. [Everett M.] Dirksen [of Illinois]: On
page 57, in line 19, strike out ``$900,000'' and insert in lieu
thereof ``$1,900,000.''
Mr. Dirksen: Mr. Chairman, I ask unanimous consent to proceed
for an additional 5 minutes.
Mr. [Ross A.] Collins [of Mississippi]: Mr. Chairman, reserving
the right to object----
Mr. [John] Taber [of New York]: Mr. Chairman, I make the point
of order against the amendment that this increase is not authorized
by law.
The Chairman: (8) The point of order of the
gentleman from New York comes too late. A request has already been
presented, and there has been a reservation of objection to it.
---------------------------------------------------------------------------
8. William J. Driver (Ark.).
---------------------------------------------------------------------------
After Withdrawal of Reservation
Sec. 2.18 A point of order against an amendment to an appropriation
bill does not come too late if made immediately after the
withdrawal of a prior reservation of a point of order since the
initial reservation of a point of order inures to all Members.
On Mar. 27, 1962,(9) the Committee of the Whole was
considering H.R. 10904, a Department of Health, Education, and Welfare
appropriation bill. The Clerk read as follows, and proceedings ensued
as indicated below:
---------------------------------------------------------------------------
9. 108 Cong. Rec. 5164, 5165, 87th Cong. 2d Sess.
---------------------------------------------------------------------------
Hospital Construction Activities
To carry out the provisions of title VI of the Act, as amended,
$188,572,000. . . .
Mr. [William Fitts] Ryan of New York: Mr. Chairman, I offer an
amendment.
[[Page 5255]]
The Clerk read as follows:
Amendment offered by Mr. Ryan of New York: On page 25, line
21, immediately before the period insert the following:
``Provided further, That no part of the amounts appropriated in
this paragraph may be used for grants or loans for any
hospital, facility, or nursing home established, or having
separate facilities, for population groups ascertained on the
basis of race, creed, or color.''
Mr. [John E.] Fogarty [of Rhode Island]: Mr. Chairman, I
reserve the point of order.
Mr. Ryan of New York: Mr. Chairman and Members of the House, I
rise to support an amendment which would provide a limitation upon
the appropriations for hospital construction activities: that is,
relating to page 25 of the bill.
Mr. Chairman, this amendment would prevent the use of funds
appropriated under the Hill-Burton Act for hospital construction
for segregated facilities.
The Hill-Burton program has provided Federal financing to help
construct more than 2,000 medical care facilities in 11 Southern
States. Since the inception of the Hill-Burton program these States
have received $562,921,000 for hospital construction. Authorities
have pointed out that virtually all of these institutions
discriminate in various ways against Negro citizens. . . .
Mr. James C. Davis [of Georgia]: Mr. Chairman, is it in order
for me at this time to make a point of order against the amendment?
The Chairman: (10) The gentleman from Rhode Island
has reserved his point of order. Does the gentleman from Rhode
Island insist on the point of order?
---------------------------------------------------------------------------
10. Omar T. Burleson (Tex.).
---------------------------------------------------------------------------
Mr. Fogarty: Mr. Chairman, I waive the point of order. I have
stated my reasons as to why the amendment should be defeated and I
ask the committee to vote down the amendment.
Mr. James C. Davis: Mr. Chairman, a parliamentary inquiry.
The Chairman: The gentleman will state the parliamentary
inquiry.
Mr. James C. Davis: Mr. Chairman, is it in order for me to make
a point of order against the amendment?
Mr. [Sidney R.] Yates [of Illinois]: Mr. Chairman, does not the
point of order come too late?
The Chairman: The gentleman from Georgia is making a
parliamentary inquiry at the present time.
Mr. Yates: I beg pardon.
Mr. James C. Davis: Mr. Chairman, I was on my feet at the time
the gentleman from Rhode Island was recognized and I was on my feet
for the purpose of making a point of order against the amendment.
The Chairman: The gentleman from Rhode Island being a member of
the committee, the custom is that he be recognized first.
The Chair is ready to rule on the point of order.
Mr. Yates: Mr. Chairman, a parliamentary inquiry.
The Chairman: The gentleman will state it.
Mr. Yates: Mr. Chairman, has not the point of order been waived
by the gentleman from Rhode Island speaking to the question?
The Chairman: The Chair understood that the gentleman from
Rhode
[[Page 5256]]
Island was speaking to his point of order and insisted then on the
defeat of the amendment.
Mr. Yates: That is correct, Mr. Chairman, and, therefore, no
point of order is proper at this time.
The Chairman: The gentleman from Georgia [Mr. James C. Davis]
now states he was on his feet attempting to press a point of order
against the amendment, but the Chair had understood that the
gentleman from Rhode Island did insist on his point of order.
However, the Chair was in error as to that and the gentleman from
Georgia is now recognized to make his point of order.
Mr. Yates: Mr. Chairman, one final parliamentary inquiry.
The Chairman: The gentleman will state it.
Mr. Yates: Mr. Chairman, does not the point of order by the
gentleman from Georgia come too late?
The Chairman: Not under the circumstances. The Chair would
assume there is a possibility of more than one point of order being
made and for more than one reason.
The Chair recognizes the gentleman from Georgia.
Mr. James C. Davis: Mr. Chairman, I make a point of order
against the amendment on the ground that it is legislation on an
appropriation bill. . . .
The Chairman: . . . The gentleman from New York has offered an
amendment to which a point of order has been made. The language of
the amendment to which a point of order has been raised is as
follows:
Provided further, That no part of the amounts appropriated
in this paragraph may be used for grants or loans for any
hospital, facility, or nursing home established, or having
separate facilities, for population groups ascertained on the
basis of race, creed, or color.
The Chair is of the opinion that the amendment is a proper
limitation under the rules of the House and, therefore, overrules
the point of order.
Upon Third Reading
Sec. 2.19 A point of order against language in an appropriation bill is
not in order at the third reading of the bill in the House.
On June 6, 1963,(11) the Committee of the Whole was
considering H.R. 6754, an Agriculture Department appropriation bill.
The proceedings were as follows:
---------------------------------------------------------------------------
11. 109 Cong. Rec. 10398, 10399, 88th Cong. 1st Sess.
---------------------------------------------------------------------------
Mr. [Paul] Findley [of Illinois]: Mr. Chairman, I make the
point of order against the language on page 17, line 5, beginning
with the word ``and'' and all that follows through the period on
line 11, on the ground it is legislation on a general appropriation
bill.
The Chairman: (12) The Chair may say to the
gentleman from Illinois that his point of order comes too late. The
Clerk has reached page 19.
---------------------------------------------------------------------------
12. Eugene J. Keogh (N.Y.).
---------------------------------------------------------------------------
Mr. Findley: Mr. Chairman, a parliamentary inquiry.
The Chairman: The gentleman will state it.
[[Page 5257]]
Mr. Findley: Mr. Chairman, would it be in order to make a point
of order on the third reading of the bill?
The Chairman: No, it would not.
The Clerk read as follows: . . .
Mr. Findley: Mr. Chairman, I ask unanimous consent to return to
page 17 for the purpose of making a point of order.
The Chairman: Is there objection to the request of the
gentleman from Illinois?
Mr. [Jamie L.] Whitten [of Mississippi]: Mr. Chairman, I
object.
Various Grounds for Objection
Sec. 2.20 Points of order were made against an entire title in an
appropriation bill for the Atomic Energy Commission which included,
in part, provisions for (1) the employment of aliens; (2) rental of
space upon a determination of need by the Administrator of General
Services; (3) use of unexpended balances of previous years; (4)
transfer of sums to other agencies; (5) a sum to remain available
until expended; (6) reappropriation of funds for plant and
equipment; and (7) a power reactor project not authorized by law
and the title was held to be in violation of Rule XXI clause 2.
On July 24, 1956,(13) during consideration in the
Committee of the Whole of the second supplemental appropriation bill, a
point of order was raised against a title containing provisions as
described above. The proceedings were as follows:
---------------------------------------------------------------------------
13. 102 Cong. Rec. 14289, 84th Cong. 2d Sess.
---------------------------------------------------------------------------
Mr. Clarence Cannon [of Missouri]: Mr. Chairman, I ask
unanimous consent that the bill be considered as read and now be
open to points of order and amendments to any part of the bill.
The Chairman: (14) Is there objection to the request
of the gentleman from Missouri?
---------------------------------------------------------------------------
14. Oren Harris (Ark.).
---------------------------------------------------------------------------
There was no objection.
Mr. Cannon: Mr. Chairman, I make a point of order against title
I and also the item for the Bureau of Reclamation on page 7.
The Chairman: Is the gentleman making a point of order against
the entire title I?
Mr. Cannon: Title I and the material indicated as well as on
page 7.
The Chairman: Let us pass on one point of order at a time,
please. Does anybody wish to be heard on the point of order made by
the gentleman from Missouri [Mr. Cannon] against title I?
Mr. [Walter H.] Judd [of Minnesota]: On what basis is the point
of order made?
Mr. Cannon: Not authorized by law and is legislation on an
appropriation bill.
[[Page 5258]]
Mr. Judd: A lot of it is authorized by law.
Mr. [John] Taber [of New York]: Mr. Chairman, the items in
title I, with the exception of the several provisos, are entirely
within the statute and are authorized. I thought I had an
understanding that the only item to go out was the $400 million
item, but as long as the point of order is made on that, I will
offer an amendment to cover everything except that last proviso
after the point of order is disposed of.
Mr. Cannon: Mr. Chairman, title I, in its entirety, is subject
to a point of order. Part of the paragraph being subject to a point
of order, the entire paragraph is subject to a point of order.
Title I is subject to a point of order on the ground that it is
legislation on an appropriation bill.
The Chairman: The Chair is prepared to rule. The gentleman from
Missouri makes the point of order against title I of the pending
bill on the ground that it is legislation on an appropriation bill
or contains appropriations not authorized by law. The Chair has
gone through title I and has observed that every paragraph in it
either contains legislation on an appropriation bill, which is in
violation of the rules of the House, or contains appropriations
which are not authorized by law, which is also in violation of the
rules of the House.
The Chair sustains the point of order.
Point of Order Too Late After Amendment Offered to Paragraph
Sec. 2.21 A point of order must be made against a paragraph of a
general appropriation bill after it is read and before an amendment
is offered thereto (even if the amendment is ruled out of order).
On June 22, 1983,(15) the Committee of the Whole had
under consideration the Department of Transportation appropriation bill
(H.R. 3329), when an amendment was offered and proceedings ensued as
indicated below:
---------------------------------------------------------------------------
15. 129 Cong. Rec. ----, 98th Cong. 1st Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
Sec. 305. None of the funds provided under this Act for
Formula grants shall be made available to support mass transit
facilities, equipment, or operating expenses unless the
applicant for such assistance has given satisfactory assurances
in such manner and forms as the Secretary may require . . .
that the rates charged elderly and handicapped persons during
nonpeak hours shall not exceed one-half of the rates generally
applicable to other persons at peak hours: Provided, That the
Secretary, in prescribing the terms and conditions for the
provision of such assistance shall (1) permit applicants to
continue the use of preferential fare systems for elderly or
handicapped persons where those systems were in effect on or
prior to November 26, 1974. . . .
Mr. [Robert J.] Mrazek [of New York]: Mr. Chairman, I offer an
amendment.
The Clerk read as follows:
Amendment offered by Mr. Mra-
zek: Insert the following on page 36,
[[Page 5259]]
line 24, ending with the phrase ``prior to November 26, 1974,''
``provided that said applicant adopts and implements
appropriate standards of eligibility which includes those
citizens who reside in the district served by the mass transit
system''.
Mr. [Robert S.] Walker [of Pennsylvania]: Mr. Chairman, I
reserve a point of order against the amendment. . . .
I would remind the House under the rules of the House, though,
an issue of this kind with substantive merit needs to come before
the House--under the rules adopted primarily with votes from the
majority side earlier in this Congress--needs to come before the
body in the authorization bills rather than in the appropriations
bill.
In this particular instance, the amendment that we have before
us constitutes legislation in an appropriation bill under the
provisions of clause 2 of Rule XXI.
My objection to the amendment rests on that procedural grounds
that legislation in an appropriations bill is beyond the scope of
the present consideration and that this amendment must properly be
brought before the House in the course of the authorization
process. . . .
Mr. [Richard L.] Ottinger [of New York]: Mr. Chairman, I think
the gentleman's point of order is not well taken. The gentleman
might have and I indeed had considered making a point of order
against the section as being not in order for reasons that the
gentleman has stated with respect to this amendment.
No such point of order was made, however. Therefore, it is too
late to knock out the legislation on the basis that it is
legislation on an appropriation bill.
This amendment merely seeks to make technical changes in the
language which is already there and to which no objection was made.
Therefore, it should be in order. . . .
Mr. [Dennis M.] Hertel of Michigan: Mr. Chairman, it seems
clear that the amendment proposed now that is in question deals
with perfecting language. We are talking about the very same
standards in this amendment that are recognized in the bill. All we
are talking about is extending those standards to another group of
citizens that are covered by this bill and this authority. . . .
The Chairman: (16) If no other Member wishes to be
heard, the Chair is prepared to rule.
---------------------------------------------------------------------------
16. Philip R. Sharp (Ind.).
---------------------------------------------------------------------------
Although the pending section of the bill includes legislation
which was allowed to remain when no point of order was raised, the
fact is that the amendment adds additional legislative requirements
that appropriate standards of eligibility be determined for an
additional category of citizens not covered by section 305 and,
therefore, the Chair must rule that it is more than perfecting and
in fact does constitute additional legislation on an appropriation
and is out of order at this time.
Mr. Ottinger: Mr. Chairman, I have a parliamentary inquiry.
The Chairman: The gentleman will state his parliamentary
inquiry.
Mr. Ottinger: Mr. Chairman, would it be in order at this time,
then, to assert a point of order against section 305?
[[Page 5260]]
The Chairman: The Chair will indicate to the gentleman that the
assertion of that point of order comes too late.
Time for Making Points of Order Against Provisions of Bill Considered
as Read
Sec. 2.22 Where a general appropriation bill is by unanimous consent
considered as read and open to points of order and then to
amendments at any point, points of order against provisions in the
bill must be made before amendments are offered, and cannot be
reserved pending subsequent action on amendments, since points of
order lie against provisions in the bill as reported under Rule XXI
clause 2, and separately against amendments in violation of that
rule.
On Dec. 1, 1982,(17) during consideration in the
Committee of the Whole of the Departments of Labor, Health and Human
Services, and Education appropriation bill (H.R. 7205), a parliamentary
inquiry was raised as indicated below:
---------------------------------------------------------------------------
17. 128 Cong. Rec. 28175, 97th Cong. 2d Sess. See also Sec. Sec. 2.15,
2.16, supra, for earlier precedents on related issues.
---------------------------------------------------------------------------
Mr. [Neal] Smith of Iowa: Mr. Chairman, I have a parliamentary
inquiry.
The portion of the bill to which the parliamentary inquiry
relates is as follows:
special programs
For carrying out the consolidated programs and projects
authorized under chapter 2 of the Education Consolidation and
Improvement Act of 1981; . . .
. . . Mr. Chairman, is it possible, since the bill is open to
amendment [at] any point, to reserve a point of order and to make
it at a later time against certain lines in the bill?
The Chairman: (18) The Chair will state that the
point of order must be made at this time, before amendments are
offered.
---------------------------------------------------------------------------
18. Don Fuqua (Fla.).
---------------------------------------------------------------------------
Point of Order Against Paragraph Where Amendment Has Been Offered
Sec. 2.23 While a point of order can be made against an entire
paragraph of a general appropriation bill if any portion
contravenes the rules, it is too late to rule out the entire
paragraph after points of order against specific portions have been
sustained and an amendment to the paragraph has been offered.
On June 27, 1974,(19) during consideration of the
Departments
[[Page 5261]]
of Labor, and Health, Education, and Welfare appropriation bill (H.R.
15580), the following proceedings occurred as indicated above:
---------------------------------------------------------------------------
19. 120 Cong. Rec. 21671, 21672, 93d Cong. 2d Sess.
---------------------------------------------------------------------------
Mr. [Daniel J.] Flood [of Pennsylvania]: Mr. Chairman, I offer
an amendment.
The Clerk read as follows:
Amendment offered by Mr. Flood: Page 18, line 7, insert ``:
Provided, That none of the funds in this Act shall be used to
pay any amount for basic opportunity grants for full-time
students at institutions of higher education who were enrolled
as regular students at such institutions prior to April 1,
1973.'' . . .
Mrs. [Edith] Green of Oregon: Mr. Chairman, I make a point of
order against this amendment. The point of order is what I cited a
moment ago, Cannon's Procedure in the House of Representatives, on
page 246:
If a part of a paragraph . . . is out of order, all is out
of order and a point of order may be raised against the portion
out of order or against the entire paragraph. . . .
The Chairman: (20) The Chair is prepared to rule.
---------------------------------------------------------------------------
20. James C. Wright, Jr. (Tex.).
---------------------------------------------------------------------------
The amendment offered by the gentleman from Pennsylvania (Mr.
Flood), does appear to meet the tests of a limitation on an
appropriation bill. It limits the funds in this specific bill and
it is negatively stated. For these reasons it would clearly appear
to be admissible as a limitation, distinguishable from that
language which was stricken in the proviso that had appeared in the
original bill.
The Chair does not understand that the gentlewoman had raised a
point of order against the entire paragraph. The gentlewoman raised
two specific points of order on which the Chair ruled.
If the gentlewoman had at that time intended to make a point of
order against the entire paragraph she should so have stated, and
the Chair believes that a point of order at this moment on those
grounds would be untimely made since an amendment to the paragraph
is now pending.
Point of Order Weighed Against Bill as Amended
Sec. 2.24 A point of order against an amendment as legislation on a
general appropriation bill must be determined in relation to the
bill in its modified form (as affected by disposition of prior
points of order).
On June 14, 1978,(1) the Chair found that, to a general
appropriation bill from which all funds for the Federal Trade
Commission had been stricken as unauthorized, an amendment prohibiting
the use of all funds in the bill to limit advertising of (1) food
products containing ingredients found safe by the Food and Drug
Administration or considered ``generally recognized as safe'', or not
con
[[Page 5262]]
taining ingredients found unsafe by the FDA, and (2) toys not declared
hazardous or unsafe by the Consumer Product Safety Commission, imposed
new duties upon the Federal Communications Commission (another agency
funded by the bill) to evaluate findings of other federal agencies--
duties not imposed upon the FCC by existing law, and therefore violated
Rule XXI clause 2. The proceedings are discussed in Sec. 58.7, infra.
---------------------------------------------------------------------------
1. 124 Cong. Rec. 17644-47, 95th Cong. 2d Sess.
---------------------------------------------------------------------------
Reserving Points of Order on General Appropriation Bill
Sec. 2.25 Once points of order have been reserved in the House against
provisions in a general appropriation bill pending a unanimous
consent request for filing of the report thereon and referral to
the Union Calendar when the House would not be in session, points
of order need not be reserved again when the report is filed from
the floor as privileged on a later day, as the initial reservation
carries over to any subsequent filing on that bill.
On Mar. 1, 1983,(2) privileged report was submitted on
H.R. 1718, the essential and productive jobs and unemployment
compensation appropriation bill, 1983:
---------------------------------------------------------------------------
2. 129 Cong. Rec. ----, 98th Cong. 1st Sess.
---------------------------------------------------------------------------
Mr. [Jamie L.] Whitten [of Mississippi], from the Committee on
Appropriations, submitted a privileged report (Rept. No. 98-11) on
the bill (H.R. 1718) making appropriations to provide emergency
expenditures to meet neglected urgent needs, to protect and add to
the national wealth, resulting in not make-work but productive jobs
for women and men and to help provide for the indigent and homeless
for the fiscal year 1983, and for other purposes, which was
referred to the Union Calendar and ordered to be printed.
The Speaker Pro Tempore: (3) All points of order on
the bill have previously been reserved.
---------------------------------------------------------------------------
3. Bill Alexander (Ark.).
---------------------------------------------------------------------------
Parliamentarian's Note: While there did not appear to be a
precedent directly on this point, it was decided merely as a matter of
convenience to the minority that where they have once reserved points
of order (so that provisions in violation of Rule XXI clauses 2 and 6
might be stricken on points of order by the Committee of the Whole and
not reported back to the House), the minority Member need not be back
on the floor to again reserve points of order when the report is filed.
Appropriation Bills Read ``Scientifically'' by Paragraph Headings
Sec. 2.26 General appropriation bills are read only by para
[[Page 5263]]
graph headings and appropriation amounts, and the Clerk reads the
page and line numbers of those headings for the information of
Members only when the reading of the bill has been interrupted by
debate or amendment.
On Nov. 30, 1982,(4) during consideration of H.R. 7158
(Department of Treasury and Postal Service appropriation bill), the
Chair made a statement regarding the timeliness of points of order
during the reading of appropriation bills as follows:
---------------------------------------------------------------------------
4. 128 Cong. Rec. 28066, 28067, 97th Cong. 2d Sess.
---------------------------------------------------------------------------
Mr. [William E.] Dannemeyer [of California]: Mr. Chairman, I
have a point of order which I would like to assert at page 25,
lines 8 through 20.
The Chairman: (5) The Chair would advise the
gentleman in order to do that, that section of the bill having been
read, he will have to request unanimous consent.
---------------------------------------------------------------------------
5. Gerry E. Studds (Mass.).
---------------------------------------------------------------------------
Mr. Dannemeyer: Mr. Chairman, I ask unanimous consent that I be
permitted to assert a point of order on page 25, lines 8 through
20. . . .
Mr. [Edward R.] Roybal [of California]: Mr. Chairman, I object.
The Chairman: Objection is heard. . . .
The Chair would make only one observation and that is this:
that the Clerk is reading this bill as Clerks for years and years
and years have read appropriation bills. Under that procedure,
normally page numbers are not cited at all unless the reading of
the bill has been interrupted by the offering of an amendment or by
debate.
So it does, the gentleman is correct, require closer attention
than the reading of a normal bill or bills other than appropriation
bills.
Chair Normally Does Not Ask For Points of Order
Sec. 2.27 The Chair does not inquire whether any points of order are to
be made against a paragraph of a general appropriation bill which
has been read by the Clerk (except where reading has been dispensed
with by unanimous consent).
On May 31, 1984,(6) the following exchange occurred:
---------------------------------------------------------------------------
6. 130 Cong. Rec. ----, 98th Cong. 2d Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
Sec. 610. None of the funds appropriated or otherwise made
available by this Act may be obligated or expended to issue,
implement, administer, conduct or enforce any antitrust action
against a municipality or other unit of local government. . . .
Mr. [Silvio O.] Conte [of Massachusetts]: Mr. Chairman, I offer
an amendment.
The Chairman: (7) The Clerk will report the
amendment.
---------------------------------------------------------------------------
7. George E. Brown, Jr. (Calif.).
---------------------------------------------------------------------------
[[Page 5264]]
The Clerk proceeded to read the amendment.
Mr. [John Edward] Porter [of Illinois] (during the reading):
Mr. Chairman, is the Chair not going to ask for points of order on
this segment?
The Chairman: The Clerk had completed reading the section, so
the Chair did not ask for points of order.
CHAPTER 26
Unauthorized Appropriations; Legislation on Appropriation Bills
A. INTRODUCTORY MATTERS
Sec. 3. Waiver of Points of Order; Perfecting Text Permitted to Remain
Points of order against provisions of an appropriation bill may be
waived by unanimous consent or special rule. Such waiver will not
preclude points of order against amendments offered from the floor;
but, of course, the waiver of points of order may be made applicable to
such amendments, or to specified amendments.
In addition, language of the bill or amendment that is subject to a
point of order may be permitted to remain through mere failure to make
the point of order.
Language that has been permitted to remain in the bill or amendment
may be modified by a further amendment, provided that such amendment is
germane and does not contain additional legislation or additional
separately earmarked unauthorized items of appropriation.
The precedents which follow discuss these
principles. -------------------
Waiver by Unanimous Consent
Sec. 3.1 The House may grant unanimous consent that points of order be
waived against all of the provisions contained in an appropriation
bill, even before such bill is reported to the full committee by a
subcommittee.
On May 23, 1944,(8) a unanimous-consent request was
granted, as follows, relating to H.R. 4879, the national war agencies
appropriation bill:
---------------------------------------------------------------------------
8. 90 Cong. Rec. 4917, 78th Cong. 2d Sess.
---------------------------------------------------------------------------
Mr. [Clarence] Cannon of Missouri: Mr. Speaker, I ask unanimous
consent that it may be in order to take up the war agencies bill
immediately after disposition of business on the Speaker's table on
Thursday next, that points of order on the bill be waived, and that
general debate be confined to the bill.
The Speaker [Sam Rayburn, of Texas]: Is there objection to the
request of the gentleman from Missouri (Mr. Cannon)?
Mr. [John] Taber of New York: Mr. Speaker, reserving the right
to object, the gentleman means points of order on matters contained
in the bill?
Mr. Cannon of Missouri: Yes; only points of order on matters
reported by
[[Page 5265]]
the committee, not points of order that may be raised during
consideration of any amendment that may be offered to the bill in
the Committee of the Whole.
Mr. Taber: Did the gentleman incorporate in his request that
debate be confined to the bill?
Mr. Cannon of Missouri: Yes; that debate be confined to the
bill.
The Speaker: Is there objection to the request of the gentleman
from Missouri [Mr. Cannon]?
Mr. [John W.] McCormack [of Massachusetts]: Mr. Speaker,
reserving the right to object, may I ask the chairman of the
Appropriations Committee if any arrangements have been made as to
the period of general debate, so that it may be in the Record?
Mr. Cannon of Missouri: General debate will not exceed 1 day.
We hope to begin reading the bill before the close of the day.
The Speaker: Is there objection to the request of the gentleman
from Missouri [Mr. Cannon]? There was no objection.
On May 25, 1944,(9) H.R. 4879 was reported to the House
and the following proceedings took place:
---------------------------------------------------------------------------
9. 90 Cong. Rec. 4990-92, 78th Cong. 2d Sess.
---------------------------------------------------------------------------
Mr. Cannon of Missouri, from the Committee on Appropriations,
reported the bill (H.R. 4879) making appropriations for war
agencies for the fiscal year ending June 30, 1945, and for other
purposes (Rept. No. 1511), which was . . . with the accompanying
report, referred to the Committee of the Whole House on the state
of the Union and ordered to be printed.
Mr. Taber: Mr. Speaker, I reserve all points of order on the
bill, and I desire to propound a parliamentary inquiry at this
time.
The Speaker: The gentleman will state it.
Mr. Taber: Mr. Speaker, on Tuesday afternoon prior to
adjournment the gentleman from Missouri [Mr. Cannon] asked
unanimous consent in substance that it might be in order to take up
this bill today and that all points of order against it be waived.
There being no objection, that consent was given.
My parliamentary inquiry is: That bill not having been reported
by the subcommittee to the full Committee on Appropriations or by
the full Committee on Appropriations of this House, were points of
order against the bill waived? . . .
Mr. [Malcolm C.] Tarver [of Georgia]: Mr. Speaker, it has been
my observation that unanimous-consent requests to waive points of
order against appropriation bills have always been submitted after
the bill has been reported, I am not aware of any practice of
coming in 2 days ahead of the reporting of a bill at a late hour in
the afternoon when very few Members are on the floor and obtaining
unanimous consent to waive points of order against a bill which has
not even been formulated, not even introduced, not even as yet
considered by the committee from which it is to be reported.
Mr. Taber: Mr. Speaker, I have known of at least 10 cases in
the last 10 years where the same practice has been followed.
The Speaker: The Chair is prepared to rule. . . .
. . . It has been held that the Committee on Rules may report a
resolu
[[Page 5266]]
tion providing for the consideration of a bill which has not been
introduced. When a rule is reported it can be adopted only by a
majority vote of the House.
It would seem to the Chair that a unanimous-consent request
about which there was no contest would be even stronger than that.
Mr. [Clifton A.] Woodrum of Virginia: Would the Chair hold that
the Committee on Appropriations, which does not have legislative
authority, would have no right to report a legislative provision,
unanimous consent having been obtained before the bill was even
reported to the full committee, no matter what objectionable
legislative features may have been put in the bill by the full
committee, and yet when it comes to the House it would not be
subject to a point of order?
The Speaker: Any time that any Member of the House desires to
object to a request of this kind he may exercise his right to do
it.
The Chair holds that points of order against the provisions in
this bill have been waived.
Mr. [Francis H.] Case [of South Dakota]: Mr. Speaker, in view
of the importance of this as a matter of setting a precedent, I
respectfully appeal from the decision of the Chair and ask for
recognition. . . .
The question involved is whether or not you want the Speaker to
recognize Members to ask for the consideration of appropriation
bills with points of order waived and let that recognition come at
any time regardless of whether or not the bill has been reported to
the House.
Mr. Speaker, I move the previous question.
Mr. McCormack: Mr. Speaker, I move that the appeal be laid on
the table.
The Speaker: The motion of the gentleman from Massachusetts is
preferential.
The question was taken; and the Chair being in doubt, the House
divided; and there were--ayes 175, noes 54.
Mr. [Ezekiel C.] Gathings [of Arkansas]: Mr. Speaker, I ask for
the yeas and nays.
The Speaker: Twenty-six Members have risen, not a sufficient
number.
The yeas and nays were refused.
So the motion was agreed to.
The Speaker: The motion offered by the gentleman from
Massachusetts is agreed to, and the decision of the Chair
sustained.
Waiver by Special Rules, Generally
Sec. 3.2 The House may adopt a resolution waiving points of order
against a section of an appropriation bill which contains
legislative provisions in violation of Rule XXI clause 2.
On May 27, 1969,(10) the following proceedings took
place:
---------------------------------------------------------------------------
10. 115 Cong. Rec. 14055, 14056, 91st Cong. 1st Sess.
---------------------------------------------------------------------------
Mr. [Claude D.] Pepper [of Florida]: Mr. Speaker, by direction
of the Committee on Rules, I call up House Resolution 424 and ask
for its immediate consideration.
[[Page 5267]]
The Clerk read the resolution, as follows:
H. Res. 424
Resolved, That during the consideration of the bill (H.R.
11582) making appropriations for the Treasury and Post Office
Departments, the Executive Office of the President, and certain
independent agencies, for the fiscal year ending June 30, 1970,
and for other purposes, all points of order against section 502
of said bill are hereby waived.
The Speaker: (11) The gentleman from Florida [Mr.
Pepper] is recognized for 1 hour.
---------------------------------------------------------------------------
11. John W. McCormack (Mass.).
---------------------------------------------------------------------------
Mr. Pepper: Mr. Speaker, I yield 30 minutes to the
distinguished gentleman from Illinois (Mr. Anderson) and myself
such time as I may consume.
Mr. Speaker, House Resolution 424 provides for a rule waiving
all points of order against section 502 of H.R. 11582, the
Treasury, Post Office, and Executive Office appropriation bill,
1970.
The reason for the waiver is that section 502 constitutes
legislation on an appropriation bill.
This section 502 would set aside, Mr. Speaker, only for 1 year
the personnel ceiling on the Treasury, Post Office, and Executive
Office which ceiling was placed on the governmental agency by
Public Law 90-364.
The resolution was agreed to.
Use and Importance of Special Rules
Sec. 3.3 A statement was made by the Chairman of the Committee on
Appropriations as to the use of resolutions, reported by the
Committee on Rules and adopted by the House, waiving points of
order against legislation in appropriation bills; the chairman then
indicated to government departments and legislative committees of
the House that, in the next session, nothing would be included in
an appropriation bill, however customary or urgent, that was not
specifically authorized by law.
On Mar. 23, 1945,(12) Mr. Clarence Cannon, of Missouri,
made the following statement concerning House Resolution 194, a
resolution waiving points of order against legislative provisions of
H.R. 2689, the Agriculture Department appropriation for 1946:
---------------------------------------------------------------------------
12. 91 Cong. Rec. 2671, 2672, 79th Cong. 1st Sess.
---------------------------------------------------------------------------
. . . [The resolution] is not in contravention of the rules
because the rules specifically provide in rule XI that the
Committee on Rules can at any time come in here and report a
resolution giving a legislative committee appropriating power or
giving an appropriating committee legislative power. The
proposition before us is entirely and completely within the purview
of the rules of the House. . . .
Mr. Speaker, what has brought about the necessity for this
rule? We
[[Page 5268]]
have brought in and considered all the appropriation bills of this
session up to this time without such a rule.
And we would have brought in this bill without a rule, but for
the fact that certain Members of the House . . . objected to every
minor legislative provision inserted. . . .
. . . In this instance, the great Committee on Agriculture,
which has jurisdiction, approved the bill and the Committee on
Rules approved it; otherwise we would not have reported it to the
House. But I would like to take advantage of the opportunity to add
as an individual member of the committee that in view of the fact
that points of order have been so persistently raised on this bill
that the Committee on Appropriations should in the future,
notwithstanding the needs of the departments in the transaction of
their routine business, be like Caesar's wife: innocent of even the
implication of any infringement upon any rule or practice of the
House. I should like to give notice to the departments, to the
legislative committees of the House and to all concerned that in
the next session nothing will be included in any appropriation
bill, however customary or however urgent, that is not specifically
authorized by law. I trust this notice is in ample time to permit
any department to make application to legislative committees having
jurisdiction, and in time for such committees to report such
authorization, if they so desire.
Sec. 3.4 On an occasion when the Committee on Rules failed to grant a
rule waiving points of order against provisions in an appropriation
bill, a member of the Committee on Appropriations cited the need
for such rule and made points of order against several paragraphs
of the bill as it was read for amendment, for purposes of
demonstrating the desirability of waiving points of order against
provisions in appropriation bills.
On July 14, 1955,(13) the following proceedings took
place:
---------------------------------------------------------------------------
13. 101 Cong. Rec. 10572, 10573, 84th Cong. 1st Sess.
---------------------------------------------------------------------------
Mr. [Clarence] Cannon [of Missouri]: Mr. Speaker, I move that
the House resolve itself into the Committee of the Whole House on
the State of the Union for the consideration of the bill (H.R.
7278) making supplemental appropriations for the fiscal year ending
June 30, 1956, and for other purposes; and pending that motion, Mr.
Speaker, I ask unanimous consent that general debate proceed not to
exceed 4 hours. . . .
Mr. [Louis C.] Rabaut [of Michigan]: Mr. Chairman, with malice
toward nobody but with determination to do my duty as I see it, I
want to report to this House that yesterday I appeared before the
Committee on Rules, as was the request of the full Committee on
Appropriations. I told the Committee on Rules that this bill was
filled with paragraphs that were subject to points of order; that
the bill probably contained very few pages where a ruling could be
denied against points of order, and the bill would be
[[Page 5269]]
bad. I said there were so few pages that I limited it to about four
pages that would not be subject to a point of order.
I read to the committee a prepared statement and said the bill
contained many of the paragraphs that were in the final
supplemental bill as handled by the Committee on Appropriations
every year, and that rule is usually granted.
The gentleman from New York (Mr. Taber), the gentleman from
California (Mr. Phillips), and the gentleman from Wisconsin (Mr.
Davis) were present and opposed a rule. Mr. Davis lent his moral
support.
Past history always allowed a
rule. To my surprise the committee
failed to act, and we find ourselves
with a bill involving approximately
$1,650,000,000. . . .
Rather than to have a field day on points of order I intend to
ask unanimous consent to ask for deletion from the bill of all the
paragraphs subject to a point of order so the House may work its
will on that part of the bill on which the decision of the Rules
Committee permits us to function. This will represent a big saving
in time and much useless talk. . . .
. . . So this is my notice that I intend to cite the paragraphs
that are subject to points of order and ask for their deletion from
this bill.
Mr. [John] Taber [of New York]: . . . Mr. Chairman, I opposed
the rule because there was a paragraph in the bill that I felt was
not proper, and I do not believe that the Members of the House will
feel it is proper if they read it. When that point is reached I
propose to offer a point of order against it.
On the other hand, there are in the bill an enormous number of
items, as always appear in a supplemental bill at the end of the
session, that contain language that makes them particularly subject
to a point of order. Those paragraphs have been before the House
time after time and very seldom, if ever, have points of order been
raised against them.
Frankly, I do not see how we can meet our responsibility in
connection with the Government without consideration of a very
large number of items that are covered in this bill. I cannot
understand just why any Member of the House would feel that he
should want to make a point of order against an item unless that
item was, in his opinion, against the interests of the Government.
That will be my approach to the problem and I will confine my
points of order to what I believe may not be in the interest of the
Government.
With that statement, I shall feel obliged to object to an
omnibus request to be made before the reading of the individual
paragraphs.
In the proceedings that followed with respect to the bill, Mr.
Rabaut made numerous points of order against provisions of the bill.
Illustrative Forms of Special Rules
Sec. 3.5 A resolution reported from the Committee on Rules, waiving
points of order against consideration of a general appropriation
[[Page 5270]]
bill which had not been reported for three calendar days, and
waiving points of order against certain provisions in the bill
which were not authorized by law or which constituted legislation.
On May 14, 1970,(14) the following proceedings took
place:
---------------------------------------------------------------------------
14. 116 Cong. Rec. 15575, 91st Cong. 2d Sess.
---------------------------------------------------------------------------
Mr. [Ray J.] Madden [of Indiana]: Mr. Speaker, by direction of
the Committee on Rules, I call up House Resolution 1004 and ask for
its immediate consideration.
The Clerk read the resolution as follows:
H. Res. 1004
Resolved, That upon the adoption of this resolution it
shall be in order to move, clause 6 of Rule XXI to the contrary
notwithstanding, that the House resolve itself into the
Committee of the Whole House on the State of the Union for the
consideration of the bill (H.R. 17575) making appropriations
for the Departments of State, Justice, and Commerce, and
Judiciary, and related agencies for the fiscal year ending June
30, 1971, and for other purposes, and all points of order
against the provisions contained under the following headings
are hereby waived: ``Law Enforcement Assistance
Administration'' beginning on page 19, line 14 through line 19;
``Economic Development Administration'' beginning on page 23,
line 5 through line 23; ``National Bureau of Standards''
beginning on page 29, line 7 through line 16; ``Maritime
Administration'' beginning on page 30, line 13 through page 33,
line 12; ``Arms Control and Disarmament Agency'' beginning on
page 43, line 8 through line 12; ``Commission on Civil Rights''
beginning on page 43, line 14 through line 17; and ``Small
Business Administration'' beginning on page 45, line 17 through
page 46, line 10.
After debate, the resolution was agreed to.
Sec. 3.6 The form of a resolution waiving points of order against
certain paragraphs in an appropriation bill not authorized by law
or containing legislative language is set out below, accompanied by
related proceedings.
On June 24, 1969,(15) the following proceedings took
place:
---------------------------------------------------------------------------
15. 115 Cong. Rec. 17045, 91st Cong. 1st Sess.
---------------------------------------------------------------------------
Mr. [Richard] Bolling [of Missouri]: Mr. Speaker, by direction
of the Committee on Rules, I call up House Resolution 449 and ask
for its immediate consideration.
The Clerk read the resolution, as follows:
H. Res. 449
Resolved, That during the consideration of the bill (H.R.
12307) making appropriations for sundry independent executive
bureaus, boards, commissions, corporations, agencies, offices,
and the Department of Housing and Urban Development for the
fiscal year ending June 30, 1970, and for other purposes, all
points of order
[[Page 5271]]
against the provisions contained under the following headings
are hereby waived: ``Appalachian Regional Development
Programs'' beginning on page 3, line 22, through page 4, line
3, ``Independent offices--Appalachian Regional Commission''
beginning on page 4, line 15 through page 4, line 21,
``National Aeronautics and Space Administration'' beginning on
page 21, line 13, through page 23, line 3; and ``National
Science Foundation'' beginning on page 23, line 5, through page
25, line 2.
The Speaker: (16) The gentleman from Missouri (Mr.
Bolling) is recognized for 1 hour.
---------------------------------------------------------------------------
16. John W. McCormack (Mass.).
---------------------------------------------------------------------------
Mr. Bolling: Mr. Speaker, I yield 30 minutes to the gentleman
from California (Mr. Smith) and pending that I yield myself such
time as I may consume.
Mr. Speaker, the three specific waivers of points of order are
necessary because the items on which the waivers are given or
proposed by this resolution have not been authorized by law. I
explained this to the House during the colloquy between the
majority and minority leaders last Thursday. The items are, as
anyone who listened to the reading of the resolution knows, the
National Aeronautics and Space Administration, the National Science
Foundation, and a part of the Appalachian development programs. The
waiver makes it possible for Members of the House to work their
will on the specific provisions of the appropriation, and the
Committee on Rules felt that it was wiser to handle the matter in
this fashion rather than permitting a situation to develop in which
the Senate almost surely would add the items on the Senate side
when the matter came up, and the only participation of the House
would be in conference, and on the conference report.
Therefore the Committee on Rules recommends the waiver on these
three points of order.
I urge the adoption of the resolution.
The resolution was adopted.
Sec. 3.7 The form of a resolution waiving points of order against one
title of an appropriation bill is set out below. On June 16,
1964,(17) a rule in the following form was adopted:
---------------------------------------------------------------------------
17. 110 Cong. Rec. 13953, 88th Cong. 2d Sess.
---------------------------------------------------------------------------
Mr. [B. F.] Sisk [of California]: Mr. Speaker, by direction of
the Committee on Rules, I call up House Resolution 785, and ask for
its immediate consideration.
The Clerk read the resolution, as follows:
Resolved, That during the consideration of the bill (H.R.
11579), making appropriations for certain civil functions
administered by the Department of Defense, the Panama Canal,
certain agencies of the Department of the Interior, the Atomic
Energy Commission, the Saint Lawrence Seaway Development
Corporation, the Tennessee Valley Authority, and the Delaware
River Basin Commission, for the fiscal year ending June 30,
1965, and for other purposes, all points of order against title
III of said bill are hereby waived.(18)
---------------------------------------------------------------------------
18. Parliamentarian's Note: The resolution waiving points of order was
requested since the atomic energy authorization bill, H.R.
10945, had not passed the Senate at the time this appropriation
bill was called up in the House.
---------------------------------------------------------------------------
[[Page 5272]]
After debate, the resolution was agreed to.
Sec. 3.8 The form of a resolution providing that during the
consideration of a general appropriation bill all points of order
against a specified chapter thereof or any provision contained
therein be waived, and further waiving points of order against a
designated amendment containing legislation, is set forth below.
On May 9, 1950,(19) the following proceedings took
place:
---------------------------------------------------------------------------
19. 96 Cong. Rec. 6725, 81st Cong. 2d Sess.
---------------------------------------------------------------------------
Mr. [Edward E.] Cox [of Georgia]: Mr. Speaker, I call up House
Resolution 593 and ask for its immediate consideration.
The Clerk read the resolution (H. Res. 593), as follows:
Resolved, That during the consideration of the bill (H.R.
7786) making appropriations for the support of the Government
for the fiscal year ending June 30, 1950, and for other
purposes, all points of order against chapter XI of said bill
or any provision contained therein are hereby waived and all
points of order against the following amendment to such chapter
are hereby waived:
On Page 425, after line 13, insert:
``Sec. 1113. Notwithstanding the provisions of section 6 of
the act of August 24, 1912 (37 Stat. 555), or the provisions of
any other law, the Secretary of State may, in his absolute
discretion, during the current fiscal year, terminate the
employment of any officer or employee of the Department of
State or of the Foreign Service of the United States whenever
he shall deem such termination necessary or advisable in the
interests of the United States.
``Notwithstanding the provisions of section 6 of the act of
August 24, 1912 (37 Stat. 555), or the provisions of any other
law, the Secretary of Commerce may, in his absolute discretion,
during the current fiscal year, terminate the employment of any
officer or employee of the Department of Commerce whenever he
shall deem such termination necessary or advisable in the best
interests of the United States.''
Following debate, the resolution was adopted.
Sec. 3.9 The form of a resolution waiving points of order against the
legislative provisions of a supplemental appropriation bill.
On Sept. 23, 1940,(20) the following proceedings took
place:
---------------------------------------------------------------------------
20. 86 Cong. Rec. 12480, 76th Cong. 3d Sess.
---------------------------------------------------------------------------
Mr. [Adolph J.] Sabath [of Illinois], from the Committee on
Rules, submitted the following report on the bill (H.R. 10539)
making supplemental appropriations for the support of the
Government for the fiscal year ending June 30, 1941, and for other
purposes, which was read and referred to the
[[Page 5273]]
House Calendar and ordered to be printed:
House Resolution 609
Resolved, That during the consideration of the bill (H.R.
10539) making supplemental appropriations for the support of
the Government for the fiscal year ending June 30, 1941, and
for other purposes, all points of order against the legislative
provisions of the bill are hereby waived.
After debate, the resolution was agreed to.
Sec. 3.10 The form of a resolution making in order, during the
consideration of the foreign aid appropriation bill, the offering
of a specific amendment containing legislation.
On May 26, 1949,(1) the following resolution was
considered and agreed to:
---------------------------------------------------------------------------
1. 95 Cong. Rec. 6890, 81st Cong. 1st Sess.
---------------------------------------------------------------------------
Mr. [Howard W.] Smith of Virginia: Mr. Speaker, by direction of
the Committee on Rules, I call up House Resolution 228 and ask for
its immediate consideration.
The Clerk read the resolution, as follows:
Resolved, That during the consideration of the bill (H.R.
4830) making appropriations for foreign aid for the fiscal year
ending June 30, 1950, and for other purposes, it shall be in
order to consider without the intervention of any point of
order the following amendment:
``On page 4, line 7, strike out the period, insert a colon,
and the following: `Provided further, That the entire amount
may be apportioned for obligation or may be obligated and
expended, if the President after recommendation by the
Administrator deems such action necessary to carry out the
purposes of said act during the period ending May 15, 1950'.''
Form of Resolution Providing for Consideration of Joint Resolution
Sec. 3.11 The form of a resolution providing for consideration of a
joint resolution making appropriations, waiving all points of order
against provisions in the joint resolution, making in order without
the intervention of any point of order any amendment offered by
direction of the Committee on Appropriations.
On May 12, 1938,(2) the following resolution was called
up and agreed to:
---------------------------------------------------------------------------
2. 83 Cong. Rec. 6777, 75th Cong. 3d Sess.
---------------------------------------------------------------------------
Mr. [John J.] O'Connor of New York: Mr. Speaker, I call up
House Resolution 497.
The Clerk read the resolution, as follows:
House Resolution 497
Resolved, That upon the adoption of this resolution it
shall be in order to move that the House resolve itself into
the Committee of the Whole
[[Page 5274]]
House on the state of the Union for the further consideration
of House Joint Resolution 679, a joint resolution making
appropriations for work relief, relief, and otherwise to
increase employment by providing loans and grants for public
works projects, and all points of order against said joint
resolution are hereby waived. That upon the expiration of the
general debate fixed by order of the House of May 4, 1938, the
joint resolution shall be read by sections for amendment under
the 5-minute rule. It shall be in order to consider without the
intervention of any point of order any amendment offered by
direction of the Committee on Appropriations. At the conclusion
of such consideration the Committee shall rise and report the
joint resolution to the House with such amendments as may have
been adopted, and the previous question shall be considered as
ordered on the joint resolution and the amendments thereto to
final passage without intervening motion except one motion to
recommit with or without instructions.
Amendment of Waiver in Special Rule
Sec. 3.12 Where the Committee on Rules had intended to recommend a
waiver of points of order against unauthorized items in a general
appropriation bill but not against legislative language therein,
the Member calling up the resolution offered an amendment to
reflect that intention.
On July 21, 1970,(3) the following proceedings took
place:
---------------------------------------------------------------------------
3. 116 Cong. Rec. 25240-42, 91st Cong. 2d Sess.
---------------------------------------------------------------------------
Mr. [John A.] Young [of Texas]: Mr. Speaker, by direction of
the Committee on Rules, I call up House Resolution 1151 and ask for
its immediate consideration.
The Clerk read the resolution as follows:
H. Res. 1151
Resolved, That during the consideration of the bill (H.R.
18515) making appropriations for the Departments of Labor, and
Health, Education, and Welfare, and related agencies, for the
fiscal year ending June 30, 1971, and for other purposes, all
points of order against said bill for failure to comply with
the provisions of clause 2, rule XXI are hereby waived.
Mr. Young: . . . Mr. Speaker, House Resolution 1151 is a
resolution waiving points of order against certain provisions of
H.R. 18515, the Departments of Labor, Health, Education, and
Welfare and related agencies appropriation bill for fiscal year
1971. . . .
Because the authorizations have not been enacted, points of
order are waived against the bill for failure to comply with the
first provision of clause 2, rule XXI. By mistake, the second
provision was covered by the rule--so I have an amendment at the
desk to correct the resolution.
Now, Mr. Speaker, as stated there is a clerical error in the
rule and at the proper time I shall send to the desk a committee
amendment to correct the clerical error.
[[Page 5275]]
Mr. Speaker, I urge the adoption of the resolution. . . .
The Clerk read as follows:
Amendment offered by Mr. Young: Strike out lines 5 through
7 of the resolution and insert in lieu thereof the following:
``purposes, all points of order against appropriations carried
in the bill which are not yet authorized by law are hereby
waived.''
The amendment was agreed to. . . .
The resolution was agreed to.
Waiver of Points of Order Against Amendments
Sec. 3.13 The previous question was rejected on a resolution reported
from the Committee on Rules waiving points of order against a
general appropriation bill, and the resolution was amended to
permit consideration of an amendment to the bill containing
legislation.
On May 10, 1973,(4) the following proceedings took
place:
---------------------------------------------------------------------------
4. 119 Cong. Rec. 15273-81, 93d Cong. 1st Sess.
---------------------------------------------------------------------------
Mr. [John A.] Young of Texas: Mr. Speaker, by direction of the
Committee on Rules, I call up House Resolution 389 and ask for its
immediate consideration.
The Clerk read the resolution as follows:
H. Res. 389
Resolved, That during the consideration of the bill (H.R.
7447) making supplemental appropriations for the fiscal year
ending June 30, 1973, and for other purposes, all points of
order against said bill for failure to comply with the
provisions of clause 2 and clause 5 of rule XXI are hereby
waived.
The Speaker: (5) The gentleman from Texas is
recognized for 1 hour. . . .
---------------------------------------------------------------------------
5. Carl Albert (Okla.).
---------------------------------------------------------------------------
Mrs. [Patsy T.] Mink [of Hawaii]: Mr. Speaker, I rise in
opposition to the rule for the purpose of asking the House to vote
down the previous question in order that an amendment to H.R. 7447
can be offered, which will correct a grievous error which was made
in the urgent supplemental, which restricted the allocation of
funds under impact aid for category B children to the rate of 54
percent.
The rule which we are now considering, which waives in other
instances 109 points of order, did not offer us this same
opportunity to present this amendment to the House to permit the
House to work its will. . . .
Mr. Young of Texas: Mr. Speaker, I move the previous question
on the resolution.
The Speaker: The question is on ordering the previous question.
The question was taken; and the Speaker announced that the ayes
appeared to have it.
Mrs. Mink: Mr. Speaker, I object to the vote on the ground that
a quorum is not present and make the point of order that a quorum
is not present.
The Speaker: Evidently a quorum is not present.
The Sergeant at Arms will notify absent Members.
[[Page 5276]]
The vote was taken by electronic device, and there were--yeas
184, nays 222, not voting 27, as follows: . . .
So the previous question was not ordered. . . .
Mrs. Mink: Mr. Speaker, I offer an amendment.
The Clerk read as follows:
Amendment offered by Mrs. Mink: Strike out the period at
the end of House Resolution 389 and insert ``and it shall be in
order to consider, without the intervention of any point of
order, an amendment on page 10, after the heading on line 13,
in the following form: . . .
`` `The paragraph under this heading in Public Law 93-25 is
amended by striking out ``54%''. . . .' ''
[The resolution as amended was agreed to.]
Extent of Waiver; Applicability to Amendments
Sec. 3.14 Where a general appropriation bill is considered under terms
of a special resolution ``waiving points of order against said
bill,'' the waiver applies only to the provisions of the bill and
not to amendments thereto.
On Oct. 18, 1966,(6) the Committee of the Whole was
considering H.R. 18381, a supplemental appropriation bill. The Clerk
read as follows, and proceedings ensued as indicated below:
---------------------------------------------------------------------------
6. 112 Cong. Rec. 27417, 89th Cong. 2d Sess.
---------------------------------------------------------------------------
Amendment offered by Mr. [Glenard P.] Lipscomb [of California]:
On page 2, after line 10 insert: . . .
``Procurement of Aircraft and Missiles, Navy
``For an additional amount for `Procurement of aircraft and
missiles, Navy,' $431,000,000, to remain available until
expended.'', and renumber the succeeding chapter and section
numbers accordingly.
Mr. [George H.] Mahon [of Texas]: Mr. Chairman, I make a point
of order against the amendment.
The Chairman: (7) The gentleman will state the point
of order.
---------------------------------------------------------------------------
7. James G. O'Hara (Mich.).
---------------------------------------------------------------------------
Mr. Mahon: The point of order is that the Committee on
Appropriations operates under authorizing legislation, which we
often refer to as ``412,'' providing annual authorization for the
procurement of aircraft, ships, missiles, and so forth. The House
Armed Services Committee has not reported, and Congress has not
authorized these additional funds, this $431 million for the
procurement of additional aircraft.
So I make the point of order against the amendment on the
grounds that it would exceed the authorization. I would withhold
the point of order if the gentleman wishes to discuss the
amendment, but I must insist upon the point of order. . . .
It is true that we are operating under a rule waiving points of
order,(8)
[[Page 5277]]
but the rule waived points of order only with respect to the
content of the bill, not with respect to amendments.
---------------------------------------------------------------------------
8. See H. Res. 1058, 112 Cong. Rec. 27405, 89th Cong. 2d Sess., Oct.
18, 1966, stating:
``Resolved, That during the consideration of the bill (H.R.
18381) making supplemental appropriations for the fiscal year
ending June 30, 1967, and for other purposes, all points of
order against said bill are hereby waived.''
---------------------------------------------------------------------------
Clearly it seems to me that this amendment is subject to a
point of order.
The Chairman: The Chair is prepared to rule.
The gentleman from Texas has stated the content of the
resolution providing for the consideration of the bill before the
Committee of the Whole correctly. The resolution waives points of
order against the bill but it does not waive points of order
against amendments to the bill.
Inasmuch as there seems to be agreement between the gentleman
from Texas and the gentleman from California that the funds
contained in the amendment are not authorized by legislation
enacted into law, the point of order is sustained.
The Clerk will read.
Sec. 3.15 Where the House had adopted a resolution providing that
``during the consideration of'' a general appropriation bill ``the
provisions of Rule XXI clause 2 are hereby waived,'' the Chair,
based on legislative history during debate on the resolution, ruled
that the waiver extended only to provisions in the bill and not to
amendments offered from the floor.
On June 22, 1973,(9) during consideration in the
Committee of the Whole of a general appropriation bill (H.R. 8825), a
point of order was raised against the following amendment, and
proceedings ensued as indicated below:
---------------------------------------------------------------------------
9. 119 Cong. Rec. 20981-83, 93d Cong. 1st Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
Amendments offered by Mr. [Robert O.] Tiernan [of Rhode
Island]: Page 4, line 18, strike out ``to remain available''
and insert in lieu thereof ``which shall be obligated and
expended for such assistance as authorized by such title, and
shall remain available for that purpose''.
Page 5, line 2, strike out ``to remain available'' and
insert in lieu thereof ``which shall be obligated and expended
for such grants as authorized by such title and section, and
shall remain available for that purpose''.
Page 5, line 13, strike out ``to remain available'' and
insert in lieu thereof ``which shall be obligated and expended
for such grants and assistance as authorized by such title, and
shall remain available for that purpose''.
Mr. [Edward P.] Boland ]of Massachusetts]: Mr. Chairman, I
reserve a point of order on all three amendments. . . .
Mr. Chairman, [the provision] is clearly legislation on an
appropriation bill and mandates spending for which there is no
legislation. It appears in statutory responsibility otherwise
provided by law relating to the Secretary.
The Chairman: (10) Does the gentleman from Rhode
Island desire to be heard on the point of order?
---------------------------------------------------------------------------
10. James G. O'Hara (Mich.).
---------------------------------------------------------------------------
Mr. Tiernan: Yes, I do.
First of all, the chairman said this would provide for
mandatory spending
[[Page 5278]]
in programs that are not authorized. Under the rule we adopted
today, all points of order with regard to that would be waived. . .
.
The Chairman: . . . The gentleman from Connecticut (Mr. Giaimo)
is correct in asserting that if the amendment offered by the
gentleman from Rhode Island (Mr. Tiernan) is out of order at all it
is out of order because of the second sentence of clause 2 of rule
XXI, which contains the provisions that ``nor shall any provision
in any such bill or amendment thereto changing existing law be in
order,'' and so forth, setting forth exceptions. But the gentleman
from Connecticut (Mr. Giaimo) contends and the gentleman from Rhode
Island (Mr. Tiernan) concurs, that the resolution providing for the
consideration of the bill waives the provisions of that rule. The
Chair has again read the rule. It says:
Resolved, That during the consideration of the bill (H.R.
8825) making appropriations for the Department of Housing and
Urban Development . . . the provisions of clause 2, rule XXI
are hereby waived.
It does not say that points of order are waived only with
respect to matters contained in the bill. It says ``During the
consideration of the bill'' the provisions of clause 2 of rule XXI
are waived.
The Chair was troubled by that language and has examined the
statements made by the members of the Committee on Rules who
presented the rule to see if their statements in any way amplified
or explained or limited that language. The Chair has found that
both the gentleman from Louisiana (Mr. Long) and the gentleman from
Ohio (Mr. Latta) in their explanations of the resolution did,
indeed, indicate that it was their intention, and the intention of
the committee, that the waiver should apply only to matters
contained in the bill and that it was not a blanket waiver.
Therefore whatever ambiguity there may have been in the rule as
reported, the Chair is going to hold, was cured by the remarks and
legislative history made during the presentation of the rule, which
were not disputed in any way by the gentleman from Connecticut or
anyone else. However, the Chair recognizes that it is a rather
imprecise way of achieving that result and would hope that in the
future such resolutions would be more precise in their application.
. . .
The amendment offered by the gentleman from Rhode Island
provides: ``These funds shall be expended.''
These are the words used by the amendment. Affirmative
direction by a long line of precedents has been held to be
legislation on appropriation bills.
The Chair is not holding that it is not within the power of
Congress to give such affirmative directions. It may or it may not;
that is a subject of some dispute right now. The Chair simply holds
that an appropriation bill is no place to do it, and the Chair,
therefore, sustains the point of order.
Extent of Waiver; Applicability to House Resolutions Incorporated in
Bill
Sec. 3.16 Where the House is considering a general appropriation bill
under a resolution waiving all points of order
[[Page 5279]]
against the bill, a paragraph enacting the provisions of several
House-passed resolutions as permanent law, though concededly
legislative in character, is not subject to a point of order.
On Dec. 10, 1970,(11) during consideration in the
Committee of the Whole of a supplemental appropriation bill (H.R.
19928), a point of order was raised against the following provision,
and proceedings ensued as indicated below:
---------------------------------------------------------------------------
11. 116 Cong. Rec. 40941, 91st Cong. 2d Sess.
---------------------------------------------------------------------------
The provisions of House Resolutions 1270 and 1276, relating to
certain official allowances; House Resolution 1241, relating to
compensation of the clerks to the Official Reporters of Debates;
and House Resolution 1264, relating to the limitation on the number
of employees who may be paid from clerk hire allowances, all of the
Ninety-first Congress, shall be the permanent law with respect
thereto.
Mr. [H.R.] Gross [of Iowa]: Mr. Chairman, I rise to make a
point of order against the language beginning on line 23 of page 12
and running through line 4 of page 13 as being legislation on an
appropriation bill and not a retrenchment.
Mr. [George H.] Mahon [of Texas]: Mr. Chairman, the gentleman's
point of order would be appropriate except, of course, for the fact
that we do have a rule waiving points of order against the bill.
The Chairman: (12) The Chair is prepared to rule.
Does the gentleman from Iowa care to be heard further?
---------------------------------------------------------------------------
12. Claude D. Pepper (Fla.).
---------------------------------------------------------------------------
Mr. Gross: No, sir.
The Chairman: Under the resolution the House adopted points of
order against the bill are waived. The point of order is not
sustained.
Legal Effect of Legislative Language After Enactment
Sec. 3.17 Legislation in an appropriation bill may be subject to a
point of order under Rule XXI clause 2, but if not challenged it
becomes permanent law where it is permanent in its language and
nature and as such may serve as sufficient authorization in law for
subsequent appropriations.
On May 20, 1964,(13) during consideration in the
Committee of the Whole of the Agriculture Department appropriations
bill (H.R. 11202), the following point of order was raised, and
proceedings ensued as indicated below:
---------------------------------------------------------------------------
13. 110 Cong. Rec. 11422, 11423, 88th Cong. 2d Sess.
---------------------------------------------------------------------------
Mr. [Paul] Findley [of Illinois]: My point of order is to lines
3 through 9, the portion of the section beginning with the figure
in parentheses 5. I will read it. It reads as follows:
(5) not in excess of $25,000,000 to be used to increase
domestic con
[[Page 5280]]
sumption of farm commodities pursuant to authority contained in
Public Law 88-250, the Department of Agriculture and Related
Agencies Appropriation Act, 1964, of which amount $2,000,000
shall remain available until expended for construction,
alteration and modification of research facilities.
There is legislation in an appropriation bill.
The Chairman: (14) The gentleman will include the
word ``and'' on line 2, I assume.
---------------------------------------------------------------------------
14. Eugene J. Keogh (N.Y.).
---------------------------------------------------------------------------
Mr. Findley: Yes.
The Chairman: Does the gentleman from Mississippi desire to be
heard on the point of order?
Mr. [Jamie L.] Whitten [of Mississippi]: Mr. Chairman, I call
attention to the section in the bill, last year where Congress
passed permanent legislation authorizing this in the appropriation
act in which we said hereafter this could be done. It is in last
year's appropriation act which was written for this specific
purpose and provides hereafter not to exceed $25 million may be
appropriated for these purposes. We cite chapter and verse there,
so to speak, and it is quite clear.
Mr. Findley: Mr. Chairman, may I be heard on that? . . .
My point is that the activity which would be appropriated for
in this paragraph (5) has not been authorized in legislation
heretofore.
The Chairman: The Chair is ready to rule. . . .
The Chair has had called to its attention the section which was
contained in Public Law 88-250, in which it appears that the
appropriation here, which incidentally is also in the nature of a
limitation, was authorized by the Congress by the inclusion of the
words pointed out by the gentleman from Mississippi that
``hereafter such sums (not in excess of $25,000,000 in any one
year) as may be approved by the Congress shall be available for
such purpose,'' and so forth.
The Chair therefore holds that the language in that public law
cited is authority for the inclusion in the pending bill of the
language to which the point of order was addressed, and therefore
overrules the point of order.
Mr. Findley: Mr. Chairman, a parliamentary inquiry.
The Chairman: The gentleman will state it.
Mr. Findley: The language authority cited in the public law was
a reference to a public law which was an appropriation act; am I
correct?
The Chairman: The Chair pointed that out. The Chair might say,
incidentally, that while legislation on an appropriation bill may
be subject to a point of order, if none is made it is perfectly
valid legislation and becomes permanent law if it is permanent in
its language and nature.
Amendments Adding Further Legislation
Sec. 3.18 The fact that legislative provisions restricting the uses of
funds in other acts for certain purposes have been permitted to
remain in a general appropriation bill by failure to make a point
of order does not permit the of
[[Page 5281]]
fering of an amendment adding additional legislation prohibiting
the availability of funds in other acts for certain other purposes.
On Aug. 1, 1973, (15) the following proceedings occurred
in the Committee of the Whole:
---------------------------------------------------------------------------
15. 119 Cong. Rec. 27291, 27292, 93d Cong. 1st Sess.
---------------------------------------------------------------------------
Mr. [Dante B.] Fascell [of Florida]: Mr. Chairman, I offer an
amendment.
The Clerk read as follows:
Amendment offered by Mr. Fascell: On page 36, after line
23, insert a new section: . . . .
(b) No part of any appropriation contained in this or any
other Act, or of funds available for expenditure by any
corporation or agency, shall remain available to any agency
whenever either House of Congress, or any committee or
subcommittee thereof (to the extent of matter within its
jurisdiction) requests the presence of an officer or employee
of an agency for testimony regarding matters within the
agency's possession or under its control unless the officer or
employee shall appear and supply all information requested. . .
Mr. [Howard W.] Robison of New York: Mr. Chairman, I make a
point of order again on the proposed amendment as amended by the
gentleman from Florida on the ground that it is still legislation
on an appropriation act, resting that again on the basis that the
language makes it apply to ``this or any other act.''
Mr. Fascell: Mr. Chairman, the amendment seeks to be strictly a
limitation within the purview of the rule. I call the attention of
the Chair to the language in 607(a), which says--
No part of any appropriations contained in this or any
other Act, or of funds available for expenditure by any
corporation or agency, shall be used for publicity . . .
Once having done that in this legislation, it seems to me that
where language is clearly a limitation within the purview of the
legislation or extending the legislation, that the amendment would
be in order.
The Chairman: (16) The mere fact that this similar
language remains in the bill does not protect the gentleman's
amendment from the fact that it adds additional legislation to that
which has been permitted to remain in the bill and is itself
subject to a point of order.
---------------------------------------------------------------------------
16. Richard Bolling (Mo.).
---------------------------------------------------------------------------
The point of order is sustained.
Sec. 3.19 To a section of an appropriation bill providing that the
Secretary of the Army be authorized to require from the Chief of
Engineers a planning report for each river and harbor project, and
each flood control project, an amendment seeking to give such
authority to the Secretary of the Interior as well was held to add
further legislation.
On Aug. 20, 1951,(17) the Committee of the Whole was
considering H.R. 5215, a supplemental appropriation bill. When the fol
[[Page 5282]]
lowing section was pending for amendment, a motion to strike out the
section was offered. A perfecting amendment to the section was then
offered and was ruled out as legislation, as follows:
---------------------------------------------------------------------------
17. 97 Cong. Rec. 10406, 10408, 82d Cong. 1st Sess.
---------------------------------------------------------------------------
Sec. 1313. In the administration of the various acts
authorizing construction of river and harbor and flood-control
projects, the following shall be hereafter applicable:
(a) The Secretary of the Army is authorized and directed to
have the Chief of Engineers prepare a planning report for each
river and harbor project, and for each flood-control project,
heretofore or hereafter adopted and authorized by law.
Appropriation for construction of an adopted and authorized
project, or authorized modification thereof, is authorized only
after submission by the Secretary of the Army of a planning report
to Congress and the printing thereof as a document of Congress. . .
.
After the planning report for a project has been submitted to
Congress, and after initial construction funds have been
appropriated, such project shall be reviewed by the Chief of
Engineers in the first half of each succeeding fiscal year, and a
statement of progress thereon, in such form as to permit of ready
comparison with the planning report, shall be filed by him with the
Appropriations Committees of Congress not later than the following
1st day of February.
(b) The Chief of Engineers is directed to make a report to the
Congress not later than December 31, 1952, upon all river and
harbor projects, and flood-control projects, adopted and authorized
since March 3, 1925, the construction or further improvement of
which under present conditions is undesirable, inadvisable, or
uneconomical, or in which curtailment of the projects should be
made for any other reason.
Mr. [Henry] Larcade [of Louisiana]: Mr. Chairman, I offer an
amendment which I send to the desk.
The Clerk read as follows:
Amendment offered by Mr. Larcade: On page 42, line 3,
strike out all of section 1313.
The Chairman: (18) The gentleman from Louisiana is
recognized.
---------------------------------------------------------------------------
18. Edward J. Hart (N.J.).
---------------------------------------------------------------------------
Mr. [Gerald R.] Ford [of Michigan]: Mr. Chairman, will the
gentleman yield for a parliamentary inquiry?
Mr. Larcade: I yield briefly.
Mr. Ford: Mr. Chairman, I have an amendment which I would like
to offer as a substitute for the amendment offered by the gentleman
from Louisiana. May I offer that subsequent to his presentation and
debate and prior to the vote on his amendment?
The Chairman: The proposed substitute offered by the gentleman
from Michigan (Mr. Ford) is rather in the nature of a perfecting
amendment and would have to be taken up by the committee first.
The gentleman may offer his amendment after the gentleman from
Louisiana has concluded. . . .
Amendment offered by Mr. Ford:
Page 42, line 6, strike out the word ``is'' and insert ``and
the Secretary of the Interior are.''
Page 42, line 7, after the word ``engineers'' insert the
following ``and the Commissioner of Reclamation''.
[[Page 5283]]
Page 42, line 13, after the word ``Army'' insert the following,
``and the Secretary of the Interior.''
Page 43, line 23, after the word ``engineers'' insert the
following ``and the Commissioner of Reclamation''.
Page 44, line 1, strike out the word ``him'' and insert the
word ``them.''
Page 44, line 3, strike out the word ``is'' and insert ``and
the Commissioner of Reclamation are.''
Mr. [John J.] Dempsey [of New Mexico]: Mr. Chairman, a point of
order.
The Chairman: The gentleman will state it.
Mr. Dempsey: The amendment is not germane to this section, and
in addition to that, it is purely legislation on an appropriation
bill.
The Chairman: Does the gentleman from Michigan desire to
address himself to the point of order?
Mr. Ford: Mr. Chairman, in reply to the point of order made by
the gentleman from New Mexico, I would like to say first that under
the rule adopted at the time this legislation came to the floor all
points of order were waived. Secondly, I think that the amendment
is germane because it does apply to engineering and construction of
Federal projects, and section 1313 in itself applies to engineering
and construction of Federal projects. . . .
The Chairman: The Chair is ready to rule.
With respect to the question of waiving all points of order,
that runs only to the provisions of the bill and not to amendments
offered to the bill. A proposition in an appropriation bill
proposing to change existing law but permitted to remain, may be
perfected by germane amendments, provided they do not add further
legislation. The Chair is of the opinion that this amendment does
add further legislation, and, therefore, sustains the point of
order.
Sec. 3.20 To an amendment containing legislation (because prohibiting
activities from funds ``in this or any other act'') but permitted
to be offered to a general appropriation bill pursuant to a
resolution waiving points of order against that amendment, an
amendment adding additional legislation (making the activities
illegal) to that permitted to remain was ruled out in violation of
Rule XXI clause 2.
On June 29, 1973,(19) during consideration in the
Committee of the Whole of a supplemental appropriation bill (H.R.
9055), the following proceedings occurred:
---------------------------------------------------------------------------
19. 119 Cong. Rec. 22352, 22362, 93d Cong. 1st Sess.
---------------------------------------------------------------------------
Mr. [John J.] Flynt Jr., [of Georgia]: Mr. Chairman, I offer
an amendment.
The Clerk read as follows:
Amendment offered by Mr. Flynt: Page 57, line 21, strike
out all of section 307 and insert a new section 307, as
follows:
Sec. 307. None of the funds herein appropriated under this Act
or heretofore appropriated under any other
[[Page 5284]]
act may be expended to support directly or indirectly combat
activities in, over or from off the shores of Cambodia or in or
over Laos by the U.S. forces. . . .
Mr. [Charles E.] Bennett [of Florida]: Mr. Chairman, I offer an
amendment to the amendment.
The Clerk read as follows:
Amendment offered by Mr. Bennett to the amendment offered
by Mr. Flynt: At the end of the Flynt Amendment strike the
period and insert a semicolon and the words ``and from the date
of the enactment of this law it shall be illegal for anyone to
participate in, or order, any such activities.''
The Chairman: (20) All time under the limitation
having expired, the question is on the amendment offered by the
gentleman from Florida (Mr. Bennett) to the amendment offered by
the gentleman from Georgia (Mr. Flynt).
---------------------------------------------------------------------------
20. Jack B. Brooks (Tex.).
---------------------------------------------------------------------------
Mr. [Elford A.] Cederberg [of Michigan]: Mr. Chairman, I make a
point of order against the amendment.
The Chairman: The gentleman will state his point of order.
Mr. Cederberg: Legislation on an appropriation bill is subject
to a point of order. . . .
The Chairman: The Chair is ready to rule.
The Chair feels that the amendment offered by the gentleman
from Georgia (Mr. Flynt) was protected by the rule. An amendment to
that amendment which would add language making an act illegal would
be in effect legislation on an appropriation bill, in violation of
clause 2, rule XXI, and the point of order is sustained.
Sec. 3.21 Legislative language in a general appropriation bill which is
permitted to remain therein because of a waiver of points of order
may be perfected by germane amendment but such amendment may not
contain additional legislation.
On June 26, 1973,(1) the Committee of the Whole was
considering the Departments of Labor, and Health, Education, and
Welfare appropriation bill (H.R. 8877), which read in part:
---------------------------------------------------------------------------
1. 119 Cong. Rec. 21388, 21389, 93d Cong. 1st Sess.
---------------------------------------------------------------------------
Office of Education
elementary and secondary education
For carrying out, to the extent not otherwise provided, title I
($1,810,000,000), title III ($146,393,000) . . . and section
222(a)(2) of the Economic Opportunity Act of 1964, $2,105,393,000:
Provided, That the aggregate amounts made available to each State
under title 1-A for grants to local education agencies with that
State shall not be less than such amounts as were made available
for that purpose for fiscal year 1972: Provided further, That the
requirements of section 307(e) of Public Law 89-10, as amended,
shall be satisfied when the combined fiscal effort of the local
education agency and the State for the preceding fiscal year was
not less than such combined fiscal effort in the second preceding
fiscal year.
[[Page 5285]]
An amendment was then offered:
Mr. [Albert H.] Quie [of Minnesota]: Mr. Chairman, I offer an
amendment.
The Clerk read as follows:
Amendment offered by Mr. Quie: On page 18, line 7, insert
``(1)''' before ``shall'', strike out line 9, and insert in
lieu thereof the following: purpose for fiscal year 1972; but
(2) shall not be more than \3/4\ the difference between the
amounts which would be made available to such State under this
Act without application of this clause and the amounts made
available to such State for that purpose for fiscal year 1972,
and (3) shall not be more than 110 percent of the amounts made
available to such State for that purpose for fiscal year 1972,
plus \1/2\ the difference between such amounts and the amounts
which would be made available to such State under this Act
without application of this clause or clause (2) of this
proviso: Provided further, that the
Mr. [Neal] Smith [of Iowa]: Mr. Chairman, I rise to make a
point of order against the amendment on the ground it is
legislation on an appropriation bill.
The Chairman: (2) The Chair will hear the gentleman.
---------------------------------------------------------------------------
2. Chet Holifield (Calif.).
---------------------------------------------------------------------------
Mr. Smith of Iowa: That is the sum and substance of it. It is
legislation on an appropriation bill.
It might be said that the provision it seeks to amend is also
legislation on an appropriation bill, but that point was waived in
the rule. . . .
Mr. Quie: . . . I believe the gentleman is correct in saying
that the language the amendment seeks to amend would have been
subject to a point of order if the committee had not gone to the
Rules Committee to get a waiver of points of order. However, under
the Holman Rule there is permitted language which would retrench
expenditures, and the effect of this amendment would be to retrench
expenditures. For that reason I believe the amendment is in order.
. . .
Mr. [James G.] O'Hara [of Michigan]: Mr. Chairman, under the
provisions of clause 2 of rule XXI, which forbids legislation on an
appropriation bill, it is made clear that if an amendment modifies
such legislation as has been left in the bill--and it is admitted
that this is legislation which is left in by reason of the
resolution under which we are considering it--that amendment
modifying legislation which is already in the bill will be
permitted, although if it attempts to add something new it will not
be permitted.
I should like to point out, Mr. Chairman, that the Quie
amendment simply modifies that language. The language says:
Shall receive not less than the amount received in 1972.
The Quie amendment says:
Shall receive not less than \3/4\ of the amount received in
1972.
Mr. Quie: Mr. Chairman, if the gentleman will yield, my
amendment says, ``Not more than,'' so it is truly a limitation.
Mr. O'Hara: ``Not more than''.
In any event, it is simply a modification of the 100-percent
figure that is already in the bill.
[[Page 5286]]
The Chairman: . . . The Quie amendment does strike out words in
line 9, but it also adds a considerable amount of language to that
already in the bill.
The language is as follows:
(2) but shall not be more than 3/4 the difference between
the amounts which would be made available to such State under
this Act without application of this clause and the amounts
made available to such State for that purpose for fiscal year
1972, and (3) shall not be more than 110 percent of the amounts
made available to such State for that purpose for fiscal year
1972, plus \1/2\ the difference between such amounts and the
amounts which would be made available to such State under this
Act without application of this clause or clause (2) of this
proviso:
The amendment would add language which the Chair feels is
legislation on an appropriation bill, and it is not in order as a
certain retrenchment of expenditures.
The Chair sustains the point of order.
Sec. 3.22 Where a general appropriation bill containing legislative
provisions is being considered under a procedure waiving all points
of order against the bill, amendments which add further legislation
are not in order.
On Dec. 8, 1971,(3) during consideration in the
Committee of the Whole, under a resolution waiving points of order, of
the foreign assistance appropriation bill (H.R. 12067), a point of
order was raised against the following amendment, and proceedings
ensued as indicated below:
---------------------------------------------------------------------------
3. 117 Cong. Rec. 45495, 92d Cong. 1st Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
Amendment offered by Mr. [Thomas M.] Pelly [of Washington]:
On page 10 after line 21 insert the following: ``Sec. 114. No
part of any appropriations contained in this Act may be used to
provide assistance to Ecuador, unless the President determines
that the furnishing of such assistance is important to the
national security of the United States and reports within 30
days such determination to the Congress.''
Mr. [Otto E.] Passman [of Louisiana]: Mr. Chairman, I reserve a
point of order against the amendment. . . .
The Chairman: (4) Does the gentleman from Louisiana
insist on and desire to be heard on his points of order?
---------------------------------------------------------------------------
4. Charles M. Price (Ill.).
---------------------------------------------------------------------------
Mr. Passman: I do, Mr. Chairman, and I do so reluctantly,
because there is a lot of merit to the amendment offered by the
gentleman from Washington (Mr. Pelly), but I think it would impose
additional duties upon the President. I believe it would be subject
to a point of order. I shall not press the point further, or
elaborate at length, but ask for a ruling.
The Chairman: Unless the gentleman from Washington desires to
be heard the Chair is ready to rule.
The gentleman from Washington (Mr. Pelly) submitted an
amendment
[[Page 5287]]
to limit the funds available in this bill to Ecuador, contingent
upon a decision and a report to be made by the President of the
United States. The key words of the amendment are: ``unless the
President determines and reports within 30 days to the Congress.''
Obviously, in the opinion of the Chair, that is legislation on an
appropriation bill. Therefore the Chair sustains the point of
order.
Germane Exception From Legislative Provision
Sec. 3.23 An amendment which comprises legislation on an appropriation
bill but which has been permitted to remain because no point of
order was raised against it, may be perfected by germane
amendments.
On Jan. 31, 1938, the Committee of the Whole was considering H.R.
9181, a District of Columbia appropriation bill. The following
amendment was agreed to: (5)
---------------------------------------------------------------------------
5. 83 Cong. Rec. 1309, 75th Cong. 3d Sess.
---------------------------------------------------------------------------
Amendment offered by Mr. [Ambrose J.] Kennedy of Maryland: Page
13, line 2, after the period, insert a new paragraph, as follows:
``For the use of the House District of Columbia Committee to
employ such clerical help as will be necessary to make a complete
study of the various surveys previously made of the government of
the District of Columbia for the express purpose of forming such
legislation as will effect a more efficient and economic handling
of the government affairs of the District of Columbia, $5,000.''
An amendment was then offered, as follows:
Amendment offered by Mr. [Millard F.] Caldwell [of Florida]:
Page 13, line 2, after the amendment offered by Mr. Kennedy, insert
a new paragraph, as follows:
``For a complete investigation of the administration of public
relief in the District of Columbia, to be made under the
supervision and direction of the Commissioners, including the
employment of personal services without reference to the
Classification Act of 1923, as amended, and civil-service
requirements, $5,000.''
Subsequently Mr. Caldwell offered an amendment to his amendment:
(6)
---------------------------------------------------------------------------
6. Id. at 1312.
---------------------------------------------------------------------------
The Clerk read as follows:
Amendment offered by Mr. Caldwell to the amendment pending:
After the word ``relief'' in the proposed amendment, insert
'not including the activities of the Works Progress
Administration.''
Mr. [Claude A.] Fuller [of Arkansas]: Mr. Chairman, I make the
point of order against the amendment for the reason that it is
legislation on an appropriation bill and, furthermore, that it
seeks to make an appropriation for an item not authorized by law. .
. .
The Chairman: (7) Objection is heard. The Chair is
ready to rule. The
[[Page 5288]]
gentleman from Florida offers an amendment to the pending amendment
in the following language:
---------------------------------------------------------------------------
7. William J. Driver (Ark.).
---------------------------------------------------------------------------
After the word ``relief'' in the proposed amendment, insert
``not including the activities of the Works Progress
Administration.''
That is the amendment to the amendment offered and to which the
gentleman from Arkansas addresses his point of order. The original
amendment proposed legislation on an appropriation bill, but no
point of order was raised against it. That being so, an amendment
that would contain an exception would be germane and in order,
certainly. Therefore, the point of order that the gentleman directs
to the amendment to the amendment must be overruled.
Mr. Fuller then contended that his right to make a point of order
against the original Caldwell amendment was renewed by the attempt to
amend that amendment. The Chair rejected this conclusion, reiterating
the grounds for his ruling.
Sec. 3.24 To a legislative section permitted to remain in an
appropriation bill and providing that hereafter no funds shall be
available to pay for annual leave accumulated and unused at the end
of a year, an amendment exempting a designated class of employees
from the operation of such provision was held to be in order as a
valid exception which did not add further legislation to that
permitted to remain.
On Mar. 21, 1952,(8) the Committee of the Whole was
considering H.R. 7072, an independent offices appropriation bill. The
Clerk read as follows:
---------------------------------------------------------------------------
8. 98 Cong. Rec. 2690, 82d Cong. 2d Sess.
---------------------------------------------------------------------------
Title IV--General Provisions
Sec. 401. Hereafter no part of the funds of, or available for
expenditure by any corporation or agency included in this or any
other act, including the government of the District of Columbia,
shall be available to pay for annual leave accumulated by any
civilian officer or employee during any calendar year and unused at
the close of business on June 30th of the succeeding calendar year:
Provided, That the head of any such corporation or agency shall
afford an opportunity for officers or employees to use the annual
leave accumulated under this section prior to June 30 of such
succeeding calendar year: . . . Provided further, That this section
shall not apply with respect to the payment of compensation for
accumulated annual leave in the case of officers or employees who
leave their civilian positions for the purpose of entering upon
active military or naval service in the Armed Forces of the United
States.
Mr. [Edward H.] Rees of Kansas: Mr. Chairman, I offer an
amendment.
The Clerk read as follows:
Amendment offered by Mr. Rees of Kansas: On page 62, line
17, after
[[Page 5289]]
the words ``United States'', insert ``or employees who are
entitled to less than 15 days of annual leave.''
Mr. [Albert] Thomas [of Texas]: Mr. Chairman, I make a point of
order against the amendment.
The Chairman: (9) The gentleman will state it.
---------------------------------------------------------------------------
9. Wilbur D. Mills (Ark.).
---------------------------------------------------------------------------
Mr. Thomas: Mr. Chairman, it adds additional duties and it is
legislation on an appropriation bill. . . .
The Chairman: The Chair is prepared to rule. . . .
The Chair has had an opportunity to analyze the language of the
amendment and feels that the amendment is an exception to the
legislative limitation starting on line 5 of page 62 of the pending
bill. Section 401, which starts on line 5 of page 62, is a
legislative provision allowed by waiver of points of order to
remain in an appropriation bill. The pending amendment appears to
the Chair merely to be a perfecting amendment which is germane to
the provision to which it applies and one which does not add
legislation. Therefore, the point of order is overruled.
Sec. 3.25 Where a legislative provision in a general appropriation bill
is permitted to remain by the adoption by the House of a resolution
waiving points of order, and where there is pending an amendment in
the form of a limitation to that provision, it is in order to offer
an amendment to such amendment which provides a germane exception
from the limitation and which does not constitute additional
legislation.
On May 7, 1970,(10) during consideration in the
Committee of the Whole of a supplemental appropriation bill (H.R.
17399), the following occurred after the Clerk had read a legislative
paragraph protected by the special rule waiving points of order:
---------------------------------------------------------------------------
10. 116 Cong. Rec. 14569-71, 91st Cong. 2d Sess.
---------------------------------------------------------------------------
The Clerk read as follows: . . .
Sec. 501. (a) Expenditures and net lending (budget outlays)
of the Federal Government during the fiscal year ending June
30, 1971, shall not exceed $200,771,000,000: Provided, That
whenever action, or inaction, by the Congress on requests for
appropriations and other budgetary proposals varies from the
President's recommendations reflected in the Budget for 1971
(H. Doc. 91-240, part 1), the Director of the Bureau of the
Budget shall report to the President and to the Congress his
estimate of the effect of such action or inaction on budget
outlays, and the limitation set forth herein shall be
correspondingly adjusted: Provided further, That the Director
of the Bureau of the Budget shall report to the President and
to the Congress his estimate of the effect on budget outlays of
other actions by the Congress (whether initiated by the
President or the Congress) and the limitation set forth herein
shall be correspondingly adjusted, and reports, so far as
practicable, shall indicate whether such other actions were
initiated by the President or by the Congress.
[[Page 5290]]
Mr. [Edward P.] Boland [of Massachusetts]: Mr. Chairman, I
offer an amendment.
The Clerk read as follows:
Amendment offered by Mr. Boland: On page 53 on line 25
after the amount ($200,771,000,000), insert the following: ``,
of which expenditures none shall be available for use for
American ground combat forces in Cambodia.''. . .
Mr. [Paul] Findley [of Illinois]: Mr. Chairman, I offer an
amendment to the amendment offered by the gentleman from
Massachusetts (Mr. Boland).
The Clerk read as follows:
Amendment offered by Mr. Findley to the amendment offered
by Mr. Boland: In front of the period insert the following:
``except those which protect the lives of American troops
remaining within South Vietnam.''
Mr. [George H.] Mahon [of Texas]: Mr. Chairman, I make a point
of order against the amendment.
The Chairman: (11) The gentleman will state his
point of order.
---------------------------------------------------------------------------
11. James G. O'Hara (Mich.).
---------------------------------------------------------------------------
Mr. Mahon: I make a point of order on the ground that the
amendment requires particular and special duties.(12)
---------------------------------------------------------------------------
12. The imposition of additional duties on officials as constituting a
``legislative'' enactment is discussed in detail in
Sec. Sec. 52 and 53, infra. The Chair here apparently took the
view that the determination of the purpose of American troops
in Cambodia was not such a newly required duty as would
constitute a change in existing law.
---------------------------------------------------------------------------
The Chairman: Does the gentleman from Illinois wish to be heard
on the point of order?
Mr. Findley: Mr. Chairman, I feel that it does not impose any
specific duties. No report is required. No determination is
required. It applies simply to troops that are there for a specific
purpose.
Mr. [Sidney R.] Yates [of Illinois]: Mr. Chairman, I make the
further point of order that it is legislation on an appropriation
bill.
The Chairman: The Chair has examined the proposed amendment to
the amendment. In the opinion of the Chair the proposed amendment
to the amendment constitutes an exception to the limitation that
was offered by the gentleman from Massachusetts, does not
constitute additional legislation, and is germane. Therefore the
Chair overrules the point of order.
Restriction on Contract Authority Contained in Bill
Sec. 3.26 To a section of an Agriculture Department appropriation bill
containing legislation authorizing the Secretary of Agriculture to
make such additional commitments as may be necessary in order to
provide full parity payments, an amendment providing that the
payments shall not exceed an amount necessary to equal parity
``when added to the market price and the payment made for
conservation . . . of agricultural land resources,'' was held a
proper limitation restricting the availability of
[[Page 5291]]
funds which did not add further legislation to that already
contained in the bill.
On Mar. 9, 1942,(13) during consideration in the
Committee of the Whole of the Agriculture Department appropriation
bill, the Clerk read the following provisions:
---------------------------------------------------------------------------
13. 88 Cong. Rec. 2124, 2125, 77th Cong. 2d Sess.
---------------------------------------------------------------------------
parity payments
To enable the Secretary of Agriculture to make parity payments
to producers of wheat, cotton, corn (in the commercial corn-
producing area), rice, and tobacco pursuant to the provisions of
section 303 of the Agricultural Adjustment Act of 1938, there are
hereby reappropriated the unobligated balances of the
appropriations made under this head by the Department of
Agriculture Appropriation Acts for the fiscal years 1941 and 1942,
to remain available until June 30, 1945, and the Secretary is
authorized and directed to make such additional obligations as may
be necessary in order to provide for full parity payments: . . .
Provided further, That such payments with respect to any such
commodity shall be made with respect to a farm in full amount only
in the event that the acreage planted to the commodity for harvest
on the farm in 1943 is not in excess of the farm acreage allotment
established for the commodity under the agricultural conservation
program, and, if such allotment has been exceeded, the parity
payment with respect to the commodity shall be reduced by not more
than 10 percent for each 1 percent, or fraction thereof, by which
the acreage planted to the commodity is in excess of such
allotment. The Secretary may also provide by regulations for
similar deductions for planting in excess of the acreage allotment
for the commodity on other farms or for planting in excess of the
acreage allotment or limit for any other commodity for which
allotments or limits are established under the agricultural
conservation program on the same or any other farm.
An amendment was offered, as follows:
Amendment offered by Mr. [John] Taber [of New York]: On page
77, line 5, after the word ``farm,'' strike out the period, insert
a colon and a proviso as follows: ``Provided further, That parity
payments, under the authority of this paragraph, shall not exceed
such amount as is necessary to equal parity when added to the
market price and the payment made or to be made for conservation
and use of agricultural land resources under sections 7 to 17,
inclusive, of the Soil Conservation and Domestic Allotment Act
approved February 29, 1936, as amended; and the provisions of the
Agricultural Adjustment Act of 1938 as amended; Provided further,
That the total expenditures made and the contracts entered into in
pursuance of this paragraph shall not exceed in all $212,000,000.
Mr. [Malcolm C.] Tarver [of Georgia]: Mr. Chairman, I submit a
point of order against the amendment proposed by the gentleman from
New York [Mr. Taber]. . . .
Mr. Taber: . . . The bill, on page 75, provides that the
Secretary is au
[[Page 5292]]
thorized and directed to make such additional commitments or incur
such additional obligations as may be necessary in order to provide
for full parity payments.
That is legislation. It is brought in order under the rule. The
language that I have submitted is clearly germane to that provision
because it provides a method. It is purely a limitation to the
payments that shall be made for parity under the authority of this
paragraph. For this reason it is clearly germane and it is clearly
in order.
It would be in order if there was no legislation in the
paragraph because it is a pure limitation.
Mr. [Francis H.] Case of South Dakota: Mr. Chairman, may I be
heard?
The Chairman: (14) The Chair will hear the gentleman
from South Dakota.
---------------------------------------------------------------------------
14. Robert Ramspeck (Ga.).
---------------------------------------------------------------------------
Mr. Case of South Dakota: Mr. Chairman, may I make the
observation that if the proposal is clearly a limitation, even
though it embraces some legislation, it is in order under the
Holman rule.
The Chairman: The Chair would like to ask the gentleman from
New York [Mr. Taber] if there are any funds other than those
appropriated in this bill to be used for parity payments?
Mr. Taber: None.
The Chairman: Just the funds in this bill?
Mr. Taber: That is correct.
The Chairman: The amendment the gentleman is offering is to
limit the funds offered in this bill?
Mr. Taber: That is my intention. I think perhaps I ought to
insert after the word ``payments'' in the third line the words
``under the authority of this paragraph.'' With that in, it would
clearly be in order.
The Chairman: Does the gentleman from New York [Mr. Taber] ask
to modify his amendment?
Mr. Taber: I do, Mr. Chairman.
The Chairman: The gentleman from New York asks unanimous
consent to modify his amendment by inserting after the word
``payments'' ``under the authority of this paragraph.'' Is there
objection to the request of the gentleman from New York [Mr.
Taber]?
There was no objection.
The Chairman: The gentleman from New York [Mr. Taber] has
offered an amendment, on page 77, line 5, undertaking to provide
further limitations on the payment and the administration of parity
payments, to which the gentleman from Georgia has made a point of
order.
It seems to the Chair that the language of the amendment
offered by the gentleman from New York constitutes a limitation
upon the funds appropriated by this paragraph or proposed to be
appropriated by this paragraph and does not constitute legislation.
The Chair therefore overrules the point of order.
Increasing Limitation on Expenditures
Sec. 3.27 Where the House had adopted a resolution waiving points of
order against a section of an appropriation bill setting a
limitation on fiscal year expenditures and con
[[Page 5293]]
taining legislative provisions, an amendment increasing the
limitation by an amount equal to certain budgetary fixed costs was
allowed as a germane amendment perfecting that portion of the bill.
On May 21, 1969,(15) during consideration in the
Committee of the Whole of a supplemental appropriation bill (H.R.
11400), the following section of the bill was read:
---------------------------------------------------------------------------
15. 115 Cong. Rec. 13270, 13271, 91st Cong. 1st Sess. See also 113
Cong. Rec. 32886, 32887, 90th Cong. 1st Sess., Nov. 16, 1967,
and 113 Cong. Rec. 32966, 32967, 90th Cong. 1st Sess., Nov. 17,
1967 (proceedings relating to H.R. 13893).
---------------------------------------------------------------------------
Title IV
limitation on fiscal year 1970 budget outlays
Sec. 401. (a) Expenditures and net lending (budget outlays) of
the Federal Government during the fiscal year ending June 30, 1970,
shall not exceed $192,900,000,000: Provided, That whenever action,
or inaction, by the Congress on requests for appropriations and
other budgetary proposals varies from the President's
recommendations thereon, the Director of the Bureau of the Budget
shall report to the President and to the Congress his estimate of
the effect of such action or inaction on expenditures and net
lending, and the limitation set forth herein shall be
correspondingly adjusted.
(b) The Director of the Bureau of the Budget shall report
periodically to the President and to the Congress on the operation
of this section. The first such report shall be made at the end of
the first month which begins after the date of approval of this
Act; subsequent reports shall be made at the end of each calendar
month during the first session of the Ninety-first Congress, and at
the end of each calendar quarter thereafter.
An amendment was offered, as follows:
Amendment offered by Mr. [Jeffery] Cohelan of California: On
page 62, line 3, add the following as a new section:
``(c) The limitation set forth in subsection (a), as adjusted
in accordance with the proviso to that subsection, shall be
increased by an amount equal to the aggregate amount by which
expenditures and net lending (budget outlays) for the fiscal year
1970 on account of items designated as ``Open-ended programs and
fixed costs'' in the table appearing on page 16 of the Budget for
the fiscal year 1970 may be in excess of the aggregate expenditures
and net lending (budget outlays) estimated for those items in the
April review of the 1970 budget.''
The following proceedings then took place:
Mr. [George H.] Mahon [of Texas]: Mr. Chairman, I make a point
of order against the amendment in that it is legislation on an
appropriation bill.
Mr. Chairman, the rule pertaining to title IV only protects
what is in the bill, not amendments to the bill. . . .
The Chairman: (16) The Chair is ready to rule.
---------------------------------------------------------------------------
16. Chet Holifield (Calif.).
---------------------------------------------------------------------------
[[Page 5294]]
The Chair has examined title IV. This [amendment] is a new
subparagraph to title IV. Title IV is legislation in a general
appropriation bill, and all points of order have been waived
(against) title IV, as a result of [its] being legislation.
Therefore the Chair holds that the amendment is germane to the
provisions contained in title IV and overrules the point of order.
Striking Out Legislation Permitted to Remain, Inserting Identical
Language With Numerical Change
Sec. 3.28 An amendment striking out a legislative provision that had
been allowed by waiver of points of order to remain in the
independent offices appropriation bill, and reinserting said
provision in identical terms except for a change in the number of
housing units authorized by such provision, was held proper as not
adding further legislation.
On Mar. 20, 1952,(17) the Committee of the Whole was
considering H.R. 7072, an independent offices appropriation bill, which
read in part:
---------------------------------------------------------------------------
17. 98 Cong. Rec. 2626-29, 82d Cong. 2d Sess.
---------------------------------------------------------------------------
public housing administration
Annual contributions: For the payment of annual contributions
to public housing agencies in accordance with section 10 of the
United States Housing Act of 1937, as amended (42 U.S.C. 1410),
$29,880,000: . . . Provided further, That notwithstanding the
provisions of the United States Housing Act of 1937, as amended,
the Public Housing Administration shall not, with respect to
projects initiated after March 1, 1949, (1) authorize during the
fiscal year 1953 the commencement of construction of in excess of
25,000 dwelling units, or (2) after the date of approval of this
act, enter into any agreement, contract, or other arrangement which
will bind the Public Housing Administration with respect to loans,
annual contributions, or authorizations for commencement of
construction, for dwelling units aggregating in excess of 25,000 to
be authorized for commencement of construction during any one
fiscal year subsequent to the fiscal year 1953, unless a greater
number of units is hereafter authorized by the Congress. . . .
An amendment was offered by Mr. Sidney R. Yates, of Illinois:
(18)
---------------------------------------------------------------------------
18. Id. at p. 2627.
---------------------------------------------------------------------------
Amendment offered by Mr. Yates: On page 24, line 11, after the
words ``Provided further'', strike out the remainder of line 11 and
all lines thereafter through the word ``Congress'' in line 25, and
insert in lieu thereof the following: ``That notwithstanding the
provisions of the Housing Act of 1937, as amended, the Public
Housing Administration shall not, with respect to projects
initiated after March 1, 1949, authorize during the fiscal year
1953 the commencement of construction of in excess of 50,000
dwelling units.''
[[Page 5295]]
Subsequently, Mr. O. Clark Fisher, of Texas, offered a substitute
amendment: (19)
---------------------------------------------------------------------------
19. Id. at p. 2628.
---------------------------------------------------------------------------
Amendment offered by Mr. Fisher as a substitute for the
amendment offered by Mr. Yates: Page 24, strike out line 11, all
the language down to and including the word ``Congress'' in line 25
and insert the following: ``Provided further, That notwithstanding
the provisions of the United States Housing Act of 1937, as
amended, the Public Housing Administration shall not, with respect
to projects initiated after March 1, 1949 (1) authorize during the
fiscal year 1953 the commencement of construction of in excess of
5,000 dwelling units, or (2) after the date of approval of this act
enter into any agreement, contract, or other arrangement which will
bind the Public Housing Administration in respect to loans, annual
contributions, or authorizations for commencement of construction,
for dwelling units aggregating in excess of 5,000 to be authorized
for commencement of construction during any one fiscal year
subsequent to the fiscal year 1953, unless a greater number of
units is hereafter authorized by the Congress.''
Mr. Franklin D. Roosevelt, Jr., of New York, here ascertained by
parliamentary inquiry that a waiver of points of order against the
above provisions of the bill did not apply to amendments.
Mr. Roosevelt: Mr. Chairman, I make the point of order against
the amendment on the ground that it is legislation on an
appropriation bill in the future as well as at present.
The Chairman: (20) The Chair is ready to rule.
---------------------------------------------------------------------------
20. Wilbur D. Mills (Ark.).
---------------------------------------------------------------------------
The Chair has had an opportunity to read and to analyze the
amendment offered by the gentleman from Texas [Mr. Fisher]. The
gentleman's amendment is identical with the language in the bill on
page 24, beginning with line 11 through the word ``Congress'' in
line 25, except for the figures in lines 16 and 22, where the
gentleman's amendment would strike the words ``twenty-five'' in
each instance and insert ``five.'' That, to the Chair, is a
perfecting amendment, and under the rules it is entirely possible
for this procedure to be followed. The section of the bill to which
the amendment is offered is legislation which has been permitted to
remain by waiver of points of order. Such legislative provisions
can be perfected by germane amendments which add no further
legislation. The amendment before us is germane and adds no further
legislation. Therefore, the Chair overrules the point of order.
Examples of Perfecting Amendments Ruled Out as Adding Legislation to
That in Bill
Sec. 3.29 A section which proposes legislation in a general
appropriation bill, being permitted to remain, may be perfected by
a germane amendment, but this does not permit an amendment which
adds further legisla
[[Page 5296]]
tion; thus, where a provision in the Defense Department
appropriation bill required the Secretary of Defense to furnish
certain information on proposed purchases to small business
enterprises, an amendment requiring expenditures to be made in
accordance with provisions of other laws relating to small business
was held to be additional legislation and not in order.
On May 10, 1956,(1) a section of the Defense Department
appropriation bill (H.R. 10986) was read in Committee of the Whole, and
an amendment offered, as indicated:
---------------------------------------------------------------------------
1. 102 Cong. Rec. 7967, 7968, 84th Cong. 2d Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
Sec. 609. Insofar as practicable, the Secretary of Defense
shall assist American small business to participate equitably
in the furnishing of commodities and services financed with
funds appropriated under this act by making available or
causing to be made available to suppliers in the United States,
and particularly to small independent enterprises, information,
as far in advance as possible, with respect to purchases
proposed to be financed with funds appropriated under this act,
and by making available or causing to be made available to
purchasing and contracting agencies of the Department of
Defense information as to commodities and services produced and
furnished by small independent enterprises in the United
States, and by otherwise helping to give small business an
opportunity to participate in the furnishing of commodities and
services financed with funds appropriated by this act.
Mr. [James] Roosevelt [of California]: Mr. Chairman, I offer an
amendment.
The Clerk read as follows:
Amendment offered by Mr. Roosevelt: On page 36, line 13,
section 609 is amended by adding at the end thereof the
following language:
``The expenditures of all appropriations contained in this
act effected by this section shall be made in accordance with
the policies and provisions of Public Law 413, 80th Congress,
Section 2(b) and Public Law 163, 83d Congress, section 203.''
Mr. [Richard B.] Wigglesworth [of Massachusetts]: Mr. Chairman,
I reserve a point of order on the amendment. . . .
Mr. Chairman, the gentleman from California [Mr. Roosevelt] was
good enough to give me in advance a copy of his proposed amendment,
and I have submitted it to a number of my committee colleagues. We
are all very much in favor of helping small business. The bill as
written is designed to that end. Because of the views entertained
by those with whom I have conferred, however, I feel constrained to
insist on the point of order.
The Chairman: (2) Does the gentleman from California
desire to be heard on the point of order?
---------------------------------------------------------------------------
2. Eugene J. Keogh (N.Y.).
---------------------------------------------------------------------------
Mr. Roosevelt: No, Mr. Chairman, I concede the point of order.
The Chairman: The point of order is conceded.
[[Page 5297]]
The Chair therefore sustains the point of order.
Sec. 3.30 Where an appropriation for an object not authorized by law is
allowed to remain in an appropriation bill under a resolution
waiving points of order, an amendment requiring not less than a
certain portion of that appropriation to be used for a different
purpose not authorized by law was held to be legislation in
violation of the rule.
On July 27, 1954,(3) during consideration in the
Committee of the Whole of the mutual security appropriation bill (H.R.
10051), a point of order was raised against the following amendment,
and proceedings ensued as indicated below:
---------------------------------------------------------------------------
3. 100 Cong. Rec. 12286, 12287, 83d Cong. 2d Sess.
---------------------------------------------------------------------------
Mr. [John] Phillips [of California]: Mr. Chairman, I offer an
amendment.
The Clerk read as follows:
Amendment offered by Mr. Phillips: On page 3, line 24,
after ``$100,000,000'', insert ``of which not less than
$4,100,000 shall be made available to the Food and Agriculture
Organization of the United Nations for carrying out
multilateral technical cooperation programs authorized by
section 306.''
Mr. [John M.] Vorys [of Ohio]: Mr. Chairman, I make a point of
order against the amendment on the ground that it is legislation on
an appropriation bill and is not authorized by law. . . .
The Chairman: (4) Does the gentleman from New York
[Mr. Taber] desire to be heard on the point of order?
---------------------------------------------------------------------------
4. Louis E. Graham (Pa.).
---------------------------------------------------------------------------
Mr. [John] Taber: Yes, Mr. Chairman. The language is not
authorized by law. There is no authorization for any of these items
here except the rule under which the bill was brought in.
Mr. Phillips: Mr. Chairman, on that point, I will have to
concede the point of order. In other words, everything in the bill
would be subject to a point of order, except for the fact that the
Committee on Rules waived points of order against the printed bill.
The Chairman: The Chair is constrained to sustain the point of
order.
Sec. 3.31 To a provision in an appropriation bill imposing a penalty
upon persons who accept employment, the compensation for which is
paid from funds in the bill, if such persons belong to a specified
type of organization, an amendment extending such penalty to
persons who refuse to answer questions before a committee of
Congress regarding their membership in such an organization was
ruled out of order as adding further legislation to that in the
bill and as not being germane to the section to which offered.
[[Page 5298]]
On July 2, 1953,(5) the Committee of the Whole was
considering the Defense Department appropriation bill (H.R. 5969),
which, in part, provided for penalties upon persons who accept
employment for which compensation is paid from funds in the bill, if
such persons belong to an organization which asserts the right to
strike against the government or which advocates overthrow of the
government. An amendment was offered to such provision, and a point of
order made against the amendment:
---------------------------------------------------------------------------
5. 99 Cong. Rec. 7974, 83d Cong. 1st Sess.
---------------------------------------------------------------------------
Mr. [James P.] Sutton [of Tennessee]: Mr. Chairman, I offer an
amendment.
The Clerk read as follows:
Amendment offered by Mr. Sutton: On page 46, line 10, after
``violence'', insert the following: ``or refuses to answer
questions before any committee of Congress regarding his or her
membership in or affiliation with such organization on the
ground that such testimony may incriminate such person.''
Mr. [Errett P.] Scrivner [of Kansas]: Mr. Chairman, a point of
order.
The Chairman: (6) The gentleman will state it.
---------------------------------------------------------------------------
6. Leo E. Allen (Ill.).
---------------------------------------------------------------------------
Mr. Scrivner: Mr. Chairman, although the committee understands
the purpose of the amendment and knows the results it might obtain,
we nevertheless feel that the amendment is subject to a point of
order, and insist on the point of order that it is legislation on
an appropriation bill.
The Chairman: Does the gentleman from Tennessee desire to be
heard on the point of order?
Mr. Sutton: Mr. Chairman, this is a restriction on an
appropriation. I talked with the chairman of the full Committee on
Appropriations about this amendment and also talked to the chairman
of the subcommittee handling the bill and also the ranking minority
member of the subcommittee. I was hopeful they would accept this
amendment. To me it is a restriction on an appropriation and is
something I believe the entire Congress would be in favor of. I
hope the gentleman will withdraw his point of order and let this
amendment go into the appropriation bill. I still insist, Mr.
Chairman, that it is a restriction.
The Chairman: In the opinion of the Chair, the amendment
offered by the gentleman from Tennessee adds further legislation to
that in the bill, and the amendment is not germane to the section
to which it is offered. The Chair, therefore, sustains the point of
order.
Sec. 3.32 Where a provision in a general appropriation bill established
a continuing fund in the ``Southeastern Power Area,'' to be
available for designated expenditures in such area, an amendment
establishing a similar fund from receipts of the ``Southwestern
Power Administration'' for similar expendi
[[Page 5299]]
tures in the southwestern area was held to add legislation
unauthorized by law.
On Apr. 24, 1951(7), the Committee of the Whole was
considering H.R. 3790, an Interior Department appropriation. The
following paragraph was pending:
---------------------------------------------------------------------------
7. 97 Cong. Rec. 4293, 4294, 82d Cong. 1st Sess.
---------------------------------------------------------------------------
All receipts from the transmission and sale of electric power
and energy under the provisions of section 5 of the Flood Control
Act of December 22, 1944 (16 U.S.C. 825s), generated or purchased
in the southeastern power area, shall be covered into the Treasury
of the United States as miscellaneous receipts, except that the
Treasury shall set up and maintain from such receipts a continuing
fund of $50,000, and said fund shall be placed to the credit of the
Secretary, and shall be subject to check by him to defray emergency
expenses necessary to insure continuity of electric service and
continuous operation of Government facilities in said area.
Mr. [Boyd] Tackett [of Arkansas]: Mr. Chairman, I offer an
amendment.
The Clerk read as follows:
Amendment offered by Mr. Tackett: Strike out the period on
line 18, page 3, following the word ``area'' and insert the
following language: ``Provided, further, That all receipts from
the transmission and sale of electric power and energy under
the provisions of section 5 of the Flood Control Act of
December 22, 1944 (16 U.S.C. 825s), generated or purchased by
the Southwestern Power Administration, shall be covered into
the Treasury of the United States as miscellaneous receipts,
except that the Treasury shall set up and maintain from such
receipts a continuing fund of $250,000. . . .''
Mr. [James W.] Trimble [of Arkansas]: Mr. Chairman, I make the
point of order against the amendment on the ground that it is
legislation on an appropriation bill and that the language used
changes the purpose of the legislation to be considered.
The Chairman: (8) Does the gentleman from Arkansas
desire to be heard on the point of order?
---------------------------------------------------------------------------
8. Wilbur D. Mills (Ark.).
---------------------------------------------------------------------------
Mr. Tackett: Yes, Mr. Chairman.
I contend, Mr. Chairman, that this is a limitation upon
legislation and that it is germane to the provisions of the bill,
because the Southwestern Power Administration and the Southeastern
Power Administration are both authorized under section 5 of the
Flood Control Act of December 22, 1944, and that this amendment
places the Southwestern Power Administration and other such
agencies under the Department of the Interior under the same
provisions and entitlement so far as the continuing fund is
concerned. It is certainly germane, Mr. Chairman, for the simple
reason that both such agencies are set up under the Flood Control
Act of 1944, and this is a limitation upon the legislation that is
provided by this section of the proposal now before the committee.
. . .
The Chairman: The Chair is ready to rule.
The gentleman from Arkansas [Mr. Tackett] has offered an
amendment on page 3, line 18, to a paragraph of the bill which has
to do with the con
[[Page 5300]]
tinuing fund of the Southeastern Power Administration. The
gentleman from Arkansas [Mr. Trimble] makes a point of order
against the amendment. The Chair has had an opportunity to read and
analyze the amendment offered by the gentleman from Arkansas, which
has to do with the generation or purchase of electric power by
another agency than the Southeastern Power Administration, the
Southwestern Power Administration. The amendment contains language
that is clearly legislation.
In answer to the suggestion of the gentleman from New York,
even though legislation may appear in an appropriation bill, that
language cannot be amended by other language which adds
legislation. Briefly, a proposition in an appropriation bill
proposing to change existing law, but permitted to remain, may be
perfected by germane amendments, but such amendments may not add
legislation, and it is the opinion of the Chair that the amendment
offered by the gentleman from Arkansas proposes to add legislation
not authorized by law.
Therefore, the Chair sustains the point of order made by the
gentleman from Arkansas [Mr. Trimble].
Sec. 3.33 A paragraph which proposes legislation in a general
appropriation bill being permitted to remain may be perfected by a
germane amendment, but this does not make in order an amendment
which contains additional legislation.
On June 1, 1944,(9) the Committee of the Whole was
considering H.R. 4899, a Department of Labor and Federal Security
Agency appropriation bill. The Clerk read as follows:
---------------------------------------------------------------------------
9. 90 Cong. Rec. 5152, 5153, 78th Cong. 2d Sess.
---------------------------------------------------------------------------
Employment office facilities and services: For all necessary
expenses of the War Manpower Commission in connection with the
operation and maintenance of employment office facilities and
services, and the performance of functions, duties, and powers
relating to employment service transferred to the War Manpower
Commission by Executive Order No. 9247, including the recruitment
and placement of individuals for work or training in occupations
essential to the war effort; such expenses to include . . . travel
expenses (not to exceed $2,268,000); and rent in the District of
Columbia: . . . Provided further, That the Chairman of the War
Manpower Commission may transfer funds from this appropriation to
the Social Security Board for ``grants to States for unemployment
compensation administration'' as authorized in title III of the
Social Security Act, as amended to meet costs incurred by States in
making available to the War Manpower Commission premises,
equipment, supplies, facilities, and services, needed by the
Commission in the operation and maintenance of employment office
facilities and services, any sum so transferred and not expended in
accordance with this proviso to be retransferred to this
appropriation, $57,968,079. . . . Provided further, That no portion
of the sum herein appropriated shall be expended by any Federal
agency for the salary of any person who is engaged for more than
half of the time, as determined by the State director of
[[Page 5301]]
unemployment compensation, in the administration of the State
unemployment compensation act, including claims taking but
excluding registration for work.
At this point, an amendment was offered.
Mr. [Frank B.] Keefe [of Wisconsin]: Mr. Chairman, I offer an
amendment.
The Clerk read as follows:
Amendment offered by Mr. Keefe: On page 61, line 4, strike
out the period, insert a semicolon, and insert the following:
``Provided further, That pending the return of the employment
offices and services to the States, the Federal agency
administering the United States Employment Service shall
maintain that service as an operating entity, and during the
period of its administration shall maintain all functions
performed by State employment offices on the date said offices
were loaned to the Federal Government.''
Mr. [Malcolm C.] Tarver [of Georgia]: Mr. Chairman, a point of
order.
The Chairman: (10) The gentleman will state it.
---------------------------------------------------------------------------
10. John J. Sparkman (Ala.).
---------------------------------------------------------------------------
Mr. Tarver: Mr. Chairman, I have two points of order. First,
the amendment comes too late. The succeeding paragraph ``training
within industry service'' has already been read and the Clerk had
begun to read section 702. The amendment is offered at a point
preceding the paragraph relating to training within industry.
Second, the amendment is legislative in character and proposes
legislation on an appropriation bill. Points of order against all
legislative matters contained in the bill were by unanimous consent
waived by the House on Monday of this week. But that waiver does
not include legislative provisions which may be offered by
amendment and which are not contained in the bill, and in this case
do not relate to any legislative provision contained in the bill.
The Wagner-Peyser Act authorizes the making of appropriations to
the employment service which has now been transferred by Executive
Order No. 9247 to Federal jurisdiction. But the appropriations for
that service are authorized by the Wagner-Peyser Act and the duties
of administrative officials in the administration of the Wagner-
Peyser Act are clearly defined by law. The gentleman by his
amendment proposes to place upon them certain designated duties
which are not specifically required in existing law, and to that
extent proposes an alteration, if not an expansion, of the
provisions of the Wagner-Peyser Act. . . .
Mr. Keefe: Mr. Chairman, addressing myself to [the point of
order, that this is legislation upon an appropriation bill], if I
understand the gentleman's argument it is that here is a
legislative attempt to change the provisions of the Wagner-Peyser
Act and to impose conditions upon the employment offices of the
country at variance with the provisions of the Wagner-Peyser Act. .
. . The fact of the matter is that the employment offices in many
of the States of this Union prior to the enactment of the Wagner-
Peyser Act in 1933, on the 6th of June, were State offices and
State maintained and operated, pursuant to State law, and they were
financed in whole by State appropriations. Then, in 1933, we passed
the Wagner-Peyser Act, the sole purpose of
[[Page 5302]]
which was to extend Federal aid to States in connection with the
operation of a State employment service. . . . Now then, this is a
simple limitation on this appropriation bill in the form of this
amendment, simply saying that the Federal Government in the
operation of these State offices that have been turned over to the
Federal Government for the duration of the war, shall be operated
on the same basis and with the same functions that they were
operated before the States turned them over to the Federal
Government; that they shall not do away with their functions, but
shall maintain them as an operating entity. . . . I find no
inference so far as I am able to see, which in any way seeks to
change the law of 1933, the Wagner-Peyser Act, or which seeks to
enact into this bill any legislative provision at all. It is simply
a limitation to the extent that they shall not do away with
functions that were functions in the offices when the Federal
Government took those offices over, when they were maintained as
State offices. There is not anything in the Wagner-Peyser Act which
is contrary to that position at all, because these State offices
with State functions were maintained with Wagner-Peyser Act funds
before the Federal Government took them over.
The Chairman: The Chair is ready to rule.
The gentleman from Wisconsin [Mr. Keefe] offered an amendment
to which the gentleman from Georgia [Mr. Tarver] interposed a point
of order.
The general rule relating to this may be stated as follows:
A paragraph which proposes legislation in a general
appropriation bill being permitted to remain may be perfected
by a germane amendment; but this does not permit an amendment
which adds additional legislation.
The Chair is of the opinion that the amendment is germane, but
it certainly appears that it is additional legislation, in that it
directs that something shall be done.
Therefore, the Chair is constrained to sustain the point of
order.
Adding New Class to Those Covered by Legislative Direction; Ruled Out
Sec. Sec. 3.34 To a legislative provision permitted to remain in an
appropriation bill, authorizing the Secretary of Transportation to
allow applicants for mass transit assistance to continue use of
preferential fare systems to an existing class covered by those
systems, an amendment requiring the applicants to extend their
preferential fare systems to a new class of recipients not then
covered was ruled out of order as adding legislation to that
permitted to remain.
On June 22, 1983,(11) the Committee of the Whole had
under consideration the Department of Transportation appropriation bill
[[Page 5303]]
(H.R. 3329), when an amendment was offered and proceedings ensued as
indicated below:
---------------------------------------------------------------------------
11. 129 Cong. Rec. ----, 98th Cong. 1st Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
Sec. 305. None of the funds provided under this Act for
Formula grants shall be made available to support mass transit
facilities, equipment, or operating expenses unless the
applicant for such assistance has given satisfactory assurances
in such manner and forms as the Secretary may require . . .
that the rates charged elderly and handicapped persons during
nonpeak hours shall not exceed one-half of the rates generally
applicable to other persons at peak hours: Provided, That the
Secretary, in prescribing the terms and conditions for the
provision of such assistance shall (1) permit applicants to
continue the use of preferential fare systems for elderly or
handicapped persons where those systems were in effect on or
prior to November 26, 1974. . . .
Mr. [Robert J.] Mrazek [of New York]: Mr. Chairman, I offer an
amendment.
The Clerk read as follows:
Amendment offered by Mr. Mrazek: Insert the following on
page 36, line 24, ending with the phrase ``prior to November
26, 1974,'' ``provided that said applicant adopts and
implements appropriate standards of eligibility which includes
those citizens who reside in the district served by the mass
transit system''.
Mr. [Robert S.] Walker [of Pennsylvania]: Mr. Chairman, I
reserve a point of order against the amendment. . . .
I would remind the House under the rules of the House, though,
an issue of this kind with substantive merit needs to come before
the House--under the rules adopted primarily with votes from the
majority side earlier in this Congress--needs to come before the
body in the authorization bills rather than in the appropriations
bills.
In this particular instance, the amendment that we have before
us constitutes legislation in an appropriation bill under the
provisions of clause 2 of Rule XXI.
My objection to the amendment rests on that procedural grounds
that legislation in an appropriations bill is beyond the scope of
the present consideration and that this amendment must properly be
brought before the House in the course of the authorization
process. . . .
Mr. [Richard L.] Ottinger [of New York]: Mr. Chairman, I think
the gentleman's point of order is not well taken. The gentleman
might have and I indeed had considered making a point of order
against the section as being not in order for reasons that the
gentleman has stated with respect to this amendment.
No such point of order was made, however. Therefore, it is too
late to knock out the legislation on the basis that it is
legislation on an appropriation bill.
This amendment merely seeks to make technical changes in the
language which is already there and to which no objection was made.
Therefore, it should be in order. . . .
Mr. [Dennis M.] Hertel of Michigan: Mr. Chairman, it seems
clear that the amendment proposed now that is in question deals
with perfecting language. We are talking about the very same
standards in this amendment
[[Page 5304]]
that are recognized in the bill. All we are talking about is
extending those standards to another group of citizens that are
covered by this bill and this authority. . . .
The Chairman: (12) If no other Member wishes to be
heard, the Chair is prepared to rule.
---------------------------------------------------------------------------
12. Philip R. Sharp (Ind.).
---------------------------------------------------------------------------
Although the pending section of the bill includes legislation
which was allowed to remain when no point of order was raised, the
fact is that the amendment adds additional legislative requirements
that appropriate standards of eligibility be determined for an
additional category of citizens not covered by section 305 and,
therefore, the Chair must rule that it is more than perfecting and
in fact does constitute additional legislation on an appropriation
and is out of order at this time.
Rule Waiving Rule XXI Pending Authorization
Sec. 3.35 The Chairman and members of the Committee on Armed Services
on one occasion first opposed the adoption of a rule waiving points
of order against the Defense Department appropriation bill, then
agreed to support the rule after the Chairman of the Committee on
Appropriations announced that the appropriation bill would not be
called up pending final conference action on the authorization
measure.
On July 26, 1968,(13) the following proceedings took
place:
---------------------------------------------------------------------------
13. 114 Cong. Rec. 23622, 23623, 23627, 23628, 90th Cong. 2d Sess.
---------------------------------------------------------------------------
Mr. [William M.] Colmer [of Mississippi]: Mr. Speaker, by
direction of the Committee on Rules, I call up House Resolution
1273 and ask for its immediate consideration.
The Clerk read the resolution as follows:
H. Res. 1273
Resolved, That during the consideration of the bill (H.R.
18707) making appropriations for the Department of Defense for
the fiscal year ending June 30, 1969, and for other purposes,
all points of order against said bill are hereby waived.
Mr. Colmer: . . . Mr. Speaker, this resolution simply makes in
order the consideration of the appropriation bill for the
Department of Defense for fiscal year 1969. Of course, as the
membership is aware, the Appropriations Committee reports and bills
are privileged. They do not require ordinarily a rule to bring them
to the floor. But in this case a rule was requested and granted
simply because the authorizing legislation which ordinarily
precedes the reporting and consideration of an appropriation bill
has not been finally enacted.
The matter is now in conference, and the Committee on
Appropriations, I understand, with the concurrence of the
leadership, came to the Committee on Rules and requested a rule
waiving points of order. . . .
Mr. [L. Mendel] Rivers [of South Carolina]: Mr. Speaker, of
course,
[[Page 5305]]
there has been cooperation. This is perfectly satisfactory. . . .
Mr. [George H.] Mahon [of Texas]: Mr. Speaker, the gentleman
from South Carolina and the gentleman from Texas agree that upon
the adoption of the rule, the bill will not be called up in the
House by the Committee on Appropriations until the conference
report on the authorization bill has been adopted by both bodies.
Mr. Rivers: Mr. Speaker, that is agreeable to me. . . .
Mr. Colmer: Mr. Speaker, I move the previous question on the
resolution.
The previous question was ordered.
The Speaker: (14) The question is on the resolution.
---------------------------------------------------------------------------
14. John W. McCormack (Mass.).
---------------------------------------------------------------------------
Mr. [Donald] Rumsfeld [of Illinois]: Mr. Speaker, on that I
demand the yeas and nays.
The yeas and nays were refused.
The resolution was agreed to.
A motion to reconsider was laid on the table.
Recognition for Debate on Legislation Permitted to Remain
Sec. 3.36 The Chairman of the Committee of the Whole on one occasion
ruled that, during consideration of a general appropriation bill,
members of the Committee on Appropriations are ordinarily entitled
to preference in recognition, but that when a rule is adopted
waiving points of order against legislative provisions in the bill,
recognition may be divided between members of the Committee on
Appropriations and other Members interested in the bill.
On Mar. 5 and 6, 1941,(15) the following proceedings
took place:
---------------------------------------------------------------------------
15. 87 Cong. Rec. 1846, 1921, 1922, 77th Cong. 1st Sess.
---------------------------------------------------------------------------
The Chairman: (16) The gentleman from Georgia [Mr.
Pace] has been seeking recognition. The Chair realizes that this is
an appropriation bill, and that ordinarily members of that
committee would be entitled to preference, but under the rule
adopted yesterday we made this part of it a legislative bill by
making certain legislation in order. The Chair is going to divide
the time between the members of the Appropriations Committee and
the other Members of the House who are vitally interested in this
proposition. The Chair now recognizes the gentleman from Georgia
[Mr. Pace], a member of the Committee on Agriculture.
---------------------------------------------------------------------------
16. John E. Rankin (Miss.).
---------------------------------------------------------------------------
Mr. [Robert F.] Rich [of Pennsylvania]: Mr. Chairman, a
parliamentary inquiry.
The Chairman: The gentleman will state it.
Mr. Rich: The Chair made the statement that this is not an
appropriation bill; that it is a legislative bill. . . .
The Chairman: The gentleman from Pennsylvania misunderstood the
occupant of the chair. . . .
Permit the Chair to make a statement.
[[Page 5306]]
On yesterday the question of recognizing members of the
committee to the exclusion of other Members of the House was
raised. The Chair stated that since we were operating under a rule
that makes in order legislation on an appropriation bill, the Chair
did not feel the policy that has grown up in recent years of
recognizing members of the committee to the exclusion of other
Members of the House should be followed. The Chair does not know
what attitude future Chairmen of the Committee of the Whole may
assume, but the present occupant of the chair wishes to lay down
what the Chair believes to be a sound principle in this respect.
There are 40 members of the Committee on Appropriations. They
have control of all the time for general debate on bills coming
from that committee just as members of the Committee on Foreign
Affairs, members of the Committee on Ways and Means, or other
committees have control of the time under general debate on bills
coming from their respective committees. There is no written or
adopted rule of this House giving members of the committee in
control of the bill the exclusive right to recognition under the 5-
minute rule over other Members of the House, but a custom to that
effect seems to have grown up in recent years which the Chair
thinks is wrong.
It is all right to give preference to the chairman of a
subcommittee or to the ranking minority member on that subcommittee
in connection with important amendments under the 5-minute rule,
but the Chair does not think it is fair to the rest of the
membership of the House to follow a policy, and gradually petrify
it into the rules of the House, of recognizing all members of a
committee handling the bill under the 5-minute rule to the
exclusion of other Members of the House.
Mr. [Clarence] Cannon of Missouri: Mr. Chairman, I trust the
Chair has no intention of announcing a formal decision, which would
be in contravention of the practice of the House, which has been in
effect for a hundred years. From time immemorial the members of the
committee in control of the bill and charged with its passage have
been given precedence in recognition, other things being equal. . .
.
. . . The members of a committee through months--sometimes
years--of work on a certain class of legislation or a recurring
bill are naturally more familiar with it, and under the rules of
the House are responsible for its disposition. And it naturally
follows that they must be in position to secure the floor and must
be accorded priority of recognition when that subject or that bill
is under consideration in order to expedite the business of the
House. There is no specific provision in the body of the rules, but
the practice has not only been established in the long history of
the American Congress but came down to us from the English
Parliament from which we received originally our parliamentary
code. . . .
The Chairman: . . . The Chair may say to the gentleman from
Missouri [Mr. Cannon] that there is no written rule on this
subject, but within the last two or three decades appropriations
have been taken away from other committees and concentrated in the
hands of one committee. The Chair is not speaking any more with
reference to the Committee on Appropriations than any other
committee. It is perfectly fair for a committee to have charge of
gen
[[Page 5307]]
eral debate and probably debate under the 5-minute rule to a large
extent, but the Chair does not think it is fair--especially under
conditions such as we have here, where a rule has been adopted
making legislation that ordinarily comes from the Committee on
Agriculture and from other committees of the House in order on the
bill--the Chair does not think it fair to the rest of the
membership of the House to recognize members of the Committee on
Appropriations under the 5-minute rule to the exclusion of the
other Members of the House. . . .
Mr. [Everett M.] Dirksen [of Illinois]: Is this to be regarded
as a ruling today, or is it merely an observation of the Chair?
The Chairman: It is a ruling as far as this bill is concerned.
On Rare Occasions the Committee on Appropriations Has Been Authorized
to Report Legislation
Sec. 3.37 The Committee on Appropriations has been authorized by House
resolution to examine allegations that certain persons in the
government were unfit for such service because of subversive
interests, and to incorporate in any appropriation measure any
legislation approved by such committee as a result of such
investigation.
On Feb. 9, 1943,(17) House Resolution 105, authorizing
the Committee on Appropriations to investigate subversive activities,
was reported from the Committee on Rules, considered, and adopted by
the House. The resolution is as follows:
---------------------------------------------------------------------------
17. 89 Cong. Rec. 734, 78th Cong. 1st Sess.
---------------------------------------------------------------------------
Resolved, That the Committee on Appropriations, acting
through a special subcommittee thereof appointed by the
chairman of such committee for the purposes of this resolution,
is authorized and directed to examine into any and all
allegations or charges that certain persons in the employ of
the several executive departments and other executive agencies
are unfit to continue in such employment by reason of their
present association or membership in or with organizations
whose aims or purposes are or have been subversive to the
Government of the United States. Such examination shall be
pursued with the view of obtaining all available evidence
bearing upon each particular case and reporting to the House
the conclusions of the committee with respect to each such case
in the light of the factual evidence obtained. . . . Any
legislation approved by the committee as a result of this
resolution may be incorporated in any general or special
appropriation measure emanating from such committee or may be
offered as a committee amendment to any such measure
notwithstanding the provisions of clause 2 of rule XXI.
Changing Sum of Unauthorized Appropriation Permitted to Remain; Held in
Order
Sec. 3.38 Where an unauthorized appropriation is permitted to remain in
a general appropriation bill by failure to raise, or by waiver of,
a point
[[Page 5308]]
of order, an amendment merely changing that amount and not adding
legislative language or earmarking separate funds for another
unauthorized purpose is in order.
On June 8, 1977, (18) the Committee of the Whole was
considering a Department of Transportation appropriation bill (H.R.
7557), when an amendment was offered and ruled in order as indicated
below:
---------------------------------------------------------------------------
18. 123 Cong. Rec. 17941, 17942, 95th Cong. 1st Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
COAST GUARD
Operating Expenses
(including transfer of funds)
For necessary expenses for the operation and maintenance of
the Coast Guard, not otherwise provided for; purchase of not to
exceed twelve passenger motor vehicles, for replacement only;
and recreation and welfare; $871,865,000 of which $205,977
shall be applied to Capehart Housing debt reduction: . . .
Mr. [Mario] Biaggi [of New York]: Madam Chairman, I offer an
amendment.
The Clerk read as follows:
Amendment offered by Mr. Biaggi: On page 3, line 7, strike
``$871,865,000'' and insert in lieu thereof ``$878,865,000''. .
. .
Mr. [Silvio O.] Conte [of Massachusetts]: Madam Chairman, the
amendment under rule XXI, clause 2, the amendment of the gentleman
from New York is out of order because it has not been authorized.
The authorization for this is pending and the House has requested a
conference on this. . . .
The Chairman: (19) The Chair is ready to rule.
---------------------------------------------------------------------------
19. Barbara Jordan (Tex.).
---------------------------------------------------------------------------
The Chair has before it the amendment which is offered by the
gentleman from New York (Mr. Biaggi). That amendment simply changes
an unauthorized appropriations figure in the bill, striking that
figure and inserting in lieu thereof another. The gentleman does
not seek, in his amendment, to earmark these additional funds at
all.
Under the precedents, then, where an amendment only seeks to
change an unauthorized amount permitted to remain in the bill by
failure to raise a point of order or by a waiver, and does not add
any legislative language or earmark for a specific unauthorized
project, that amendment is in order. (Deschler's ch. 25, sec.
23.11.)
Therefore, the point of order is overruled and the gentleman is
recognized for 5 minutes.
Sec. 3.39 Where an unauthorized appropriation is permitted to remain in
a general appropriation bill by a resolution waiving points of
order, an amendment merely changing that amount and not adding
legislative language is in order.
[[Page 5309]]
On Oct. 1, 1975,(20) during consideration in the
Committee of the Whole of the Department of Defense appropriation bill
(H.R. 9861), a point of order against an amendment was overruled, as
indicated below:
---------------------------------------------------------------------------
20. 121 Cong. Rec. 31058, 31059, 94th Cong. 1st Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
Amendment offered by Mr. [Bill] Chappell [Jr., of Florida]:
on page 31, line 10, strike out ``$3,146,050,000'' and insert
in lieu thereof the following: ``$3,093,150,000'';
And on page 31, line 14, strike out ``$801,419,000'' and
insert in lieu thereof the following: ``$796,119,000''. . . .
Mr. [Samuel S.] Stratton [of New York]: Mr. Chairman, I make a
point of order against the amendment. . . .
[A]s I understood the gentleman's explanation, he says that
this continues research on the F-401 engine, but I would point out
to the Chair that on page 285 of the report, it is indicated that
this fiscal year 1976 budget requests $2 million for additional
termination charges for this engine, and any money that would
continue the research and development on this would not have a
proper authorization. Therefore, this would constitute legislation
in an appropriation bill. . . .
Mr. [Joseph P.] Addabbo [of New York]: Mr. Chairman, the
Chappell amendment totally reduces the figure reported in the bill.
There is no other language in the amendment, so therefore it must
be pointed out, Mr. Chairman, the point of order must be overruled
because there is no other legislative language included in this
amendment. It strictly goes to the dollar figure in the bill. . . .
The Chairman: (1) The Chair is ready to rule.
---------------------------------------------------------------------------
1. Daniel D. Rostenkowski (Ill.).
---------------------------------------------------------------------------
For the reasons so eloquently stated by the gentleman from New
York (Mr. Addabbo), and where as here an appropriation for an
object not authorized by law is allowed to remain in an
appropriation bill under a resolution (H. Res. 752) waiving points
of order against unauthorized items in the bill, an amendment
merely changing the amount of such appropriation is in order
(Chairman Graham, July 27, 1954). Also it is obvious that the
amendment offered by the gentleman from Florida reduces amounts
covered in the bill, and is in order under clause 2, rule XXI.
The Chair overrules the point of order.
Changing Unauthorized Figure Not Yet Read For Amendment; Ruled Out
Sec. 3.40 Where by unanimous consent amendments were offered en bloc to
a paragraph of a general appropriation bill containing an
unauthorized amount not yet read for amendment, one of the
amendments, which increased that unauthorized figure, was ruled out
in violation of Rule XXI clause 2, since at that point it was not
[[Page 5310]]
being offered to a paragraph which had been read and permitted to
remain by the Committee of the Whole.
On June 21, 1984,(2) during consideration of the
Treasury Department appropriation bill (H.R. 5798), the following
proceedings occurred:
---------------------------------------------------------------------------
2. 130 Cong. Rec. ----, 98th Cong. 2d Sess.
---------------------------------------------------------------------------
Mr. [Glenn] English [of Oklahoma]: Mr. Chairman, I have really
three amendments that I am offering today which are all related to
one issue, namely, the restoration of funds needed to effectively
operate the air support branches of the Customs Service, and since
the amendments do not change the overall totals contained with the
bill, but rather simply restore the funds to the accounts for which
the Office of Management and Budget approved them, I ask unanimous
consent that all three amendments be considered en bloc.
The Chairman:(3) Is there objection to the request
of the gentleman from Oklahoma?
---------------------------------------------------------------------------
3. Anthony C. Beilenson (Calif.).
---------------------------------------------------------------------------
Mr. [Bill] Frenzel [of Minnesota]: . . . I reserve a point of
order on the English amendment. . . .
The Chairman: The Clerk will report the remaining amendments.
The Clerk read as follows:
Amendments offered by Mr. English: Page 3, line 2, strike
out ``22,768,000'' and insert in lieu thereof ``$20,768,000''.
Page 6, line 7, strike out ``$32,070,000'' and insert in
lieu thereof ``$36,070,000''. . . .
Mr. Frenzel: Mr. Chairman, I do insist on my point of order.
Mr. Chairman, I make a point of order that the amendment
offered by the gentleman from Oklahoma contains appropriations of
funds not previously authorized, and, therefore, is in violation of
clause 2 of rule XXI. . . .
The amendment provides $4 million in additional funds for the
Customs Service on page 6. Funding for the Customs Service has not
been authorized by the Congress and, in addition, the amounts
contemplated by the English amendment are inconsistent with those
approved by the authorizing committee, the Committee on Ways and
Means.
Mr. Chairman, I make a point of order that the funding in the
English amendment has not been authorized and, therefore violates
clause 2 of rule XXI. . . .
Mr. [Edward R.] Roybal [of California]: Mr. Chairman, I concede
the point of order.
The Chairman: The Chair sustains the point of order.
Parliamentarian's Note: Had Mr. English waited until the Customs
Service paragraph was read, and if no point of order were raised
against the unauthorized amount in that paragraph, and had he then
obtained unanimous consent to offer the same three amendments en bloc
by returning to prior paragraphs to accomplish the reductions
contemplated, his amendments en bloc would not have been subject to a
point of order, since he would have been
[[Page 5311]]
merely perfecting an unauthorized amount permitted to remain by failure
to raise a point of order against the paragraph. Mr. Frenzel, however,
did make a point of order against the paragraph on the Customs Service
interdiction program when that paragraph was read for amendment
subsequently.
Lesser Duty Than That Contemplated by Pending Legislation; Held in
Order
Sec. 3.41 A legislative provision permitted to remain in a general
appropriation bill may be perfected by germane amendment as long as
the amendment does not add further legislation.
On June 27, 1984,(4) during consideration in the
Committee of the Whole of the Treasury Department and Postal Service
appropriation bill (H.R. 5798), an amendment was offered as follows:
---------------------------------------------------------------------------
4. 130 Cong. Rec. ----, 98th Cong. 2d Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
Sec. 618. No funds appropriated by this Act shall be
available to pay for an abortion, or the administrative
expenses in connection with any health plan under the Federal
employees health benefit program which provides any benefits or
coverages for abortions, under such negotiated plans after the
last day of the contracts currently in order. . . .
The Clerk read as follows:
Sec. 619. The provisions of section 618 shall not apply
where the life of the mother would be endangered if the fetus
were carried to term.
Mrs. [Patricia] Schroeder [of Colorado]: Mr. Chairman, I offer
an amendment.
The Clerk read as follows:
Amendment offered by Mrs. Schroeder: On page 51, in line 6,
delete ``life'' and insert in lieu thereof ``health''. . . .
Mr. [Christopher H.] Smith [of New Jersey]: Mr. Chairman, this
is legislating on an appropriations bill, in violation of rule XXI,
clause 2, and I ask that it be ruled in such a way by the Chair. .
. .
Mrs. Schroeder: Mr. Chairman, clause 2(b) of rule XXI states,
``No provision changing existing law shall be reported in any
general appropriation bill. . . .'' Out of this language comes the
general restriction prohibiting the consideration of legislation as
part of an appropriation bill. One way the Chair decides whether a
limitation constitutes legislation is to determine whether the
provision adds new affirmative directions for administrative
officers.
Clearly, section 619 of H.R. 5798 would have been subject to a
valid point of order, had any Member sought to raise one. The
``life of the mother'' exception to a limitation on funding for
abortions on an appropriations measure has on numerous occasions
been ruled out of order. This happened last year on this very
legislation.
[[Page 5312]]
But, no Member raised that point of order on section 619. My
amendment seeks to amend section 619 by enlarging the exception to
apply to the ``health of the mother,'' rather than to the ``life of
the mother.'' The appropriate test is not whether section 619, as
amended, would be subject to a point of order but, rather, the test
is whether my amendment adds new or different affirmative
directions to an administrative officer. The question is whether my
amendment would change the nature of the legislation already on
this bill.
To answer that question, we must refer to section 618 of the
bill, which prohibits the use of funds appropriated by the bill to
pay for an abortion or for administrative expenses in connection
with any health plan under the Federal Employees Health Benefit
Program [FEHBP] which provides benefits or coverages for abortions.
Clearly, the first part of this section is a nullity, because there
is no authorization to use one penny appropriated by the bill to
pay directly for an abortion. The operative language is the second
part.
The administrative burden imposed by section 619 is that the
Director of the Office of Personnel Management is required to
review contracts with health care providers to ensure that they
provide no reimbursement for abortions, unless the life of the
mother is at stake. Examining those same contracts to ensure that
they provide no reimbursement for abortions unless the health of
the mother is at stake is precisely the same administrative burden.
Each involves reviewing 130 contracts to see whether certain
language appears in them. There is no different administrative
burden.
Arguably, section 619 creates another administrative burden
which requires the Director of the Office of Personnel Management
to monitor the implementation of health benefit plans to ensure
compliance with the restriction. In this role, section 619 asks the
Director of the Office of Personnel Management to second guess
doctors and insurance carriers to decide whether the life of the
mother would truly have been endangered if the fetus had been
carried to term. Undoubtedly, this is an affirmative obligation
which is nowhere authorized in law and which the Director of the
Office of Personnel Management is uniquely unqualified to perform.
My amendment reduces this administrative obligation. If the
Director of the Office of Personnel Management were obliged to
ensure compliance with section 619, as amended, he would merely
have to determine whether the health of the mother would have been
endangered if the fetus were carried to term. This is a much
smaller burden.
The life of the mother is a narrow subset of the health of the
mother. Medical personnel can say with far greater assurance that
the health of a patient might be impaired than that the life of the
patient might be lost. To make a determination that the life of the
mother would be endangered if the fetus were carried to term, one
must make a prior determination that the health of the mother was
also endangered. Hence, section 619, as amended by my amendment,
would impose a part of the administrative burden imposed by section
619, as reported, but a substantially reduced part. . . .
The Chairman: (5) The Chair is prepared to rule.
---------------------------------------------------------------------------
5. Anthony C. Beilenson (Calif.).
---------------------------------------------------------------------------
[[Page 5313]]
Under the precedents, a legislative provision permitted to
remain in a general appropriations bill may be perfected by
amendment so long as the amendment does not add further
legislation. The Chair would refer to Mr. Deschler, chapter XXVI,
section 2.3.
In the opinion of the Chair, the determinations required by
section 619 of this bill, the present bill, as to whether the life
of the mother is in danger necessarily subsume determinations as to
whether the health of the mother is in danger and, for that reason,
the amendment adds no different or more onerous requirements for
medical determination to those already required and contained in
section 619.
The Chair, therefore, would overrule the gentleman's point of
order.
Perfecting Unauthorized Figure but Mandating Expenditures; Ruled Out
Sec. 3.42 While an unauthorized item permitted to remain in a general
appropriation bill by a waiver of points of order may be changed by
amendment, an increase in that figure may not be accompanied by
legislative language directing certain expenditures.
On June 18, 1976,(6) H.R. 14239 (Departments of State,
Justice, Commerce, and Judiciary appropriations for fiscal 1977), was
under consideration, which provided in part:
---------------------------------------------------------------------------
6. 122 Cong. Rec. 19297, 94th Cong. 2d Sess.
---------------------------------------------------------------------------
For economic development assistance as authorized by titles I,
II, III, IV, and IX of the Public Works and Economic Development
Act of 1965, as amended, and title II of the Trade Act of 1974,
$300,000,000.
An amendment was offered, as follows:
Mr. [Philip E.] Ruppe [of Michigan]: Mr. Chairman, I offer an
amendment.
The Clerk read as follows:
Amendment offered by Mr. Ruppe: In Title III, page 27, line
2, strike out ``$300,000,000,'' and insert in lieu thereof:
``$329,500,000, of which not less than $77,000,000 shall be
used for economic adjustment as authorized by title IX of the
Public Works and Economic Development Act of 1965, as
amended.''. . .
Mr. [John M.] Slack [of West Virginia]: Mr. Chairman, the
amendment would violate clause 2 of rule XXI which provides:
No appropriation shall be reported in any general
appropriation bill, or be in order as an amendment thereto, for
any expenditure not previously authorized by law. . . .
The rule adopted earlier, waiving all points of order against
certain provisions in the bill for failure to comply with the
provisions of clause 2, rule XXI, applies only to those provisions
in the bill. The waiver does not apply to amendments which would
add additional provisions.
This amendment, Mr. Chairman, would add a provision to the bill
earmarking $77 million for economic adjustment under title IX of
the Public
[[Page 5314]]
Works and Economic Development Act of 1965, as amended. Extension
of that legislation which is required for fiscal year 1977 has not
been enacted. . . .
Mr. Ruppe: . . . Mr. Chairman, my amendment would increase the
funding level of title IX of this section from $47.5 to $77
million. It is my understanding that that section does fund
economic development assistance for titles I, II, III, IV, and IX
of the Public Works and Economic Development Act of 1965.
The Chairman: (7) The Chair is ready to rule.
---------------------------------------------------------------------------
7. Otis G. Pike (N.Y.).
---------------------------------------------------------------------------
If the amendment of the gentleman merely changed the
unauthorized figure permitted to remain in the appropriation bill,
it would be in order; but the amendment does mandate the
expenditure of not less than a certain amount of money for a
purpose which has not been authorized and as such constitutes
legislation in an appropriation bill.
The Chair sustains the point of order.
Expressing Different Congressional Policy to That in Bill; Ruled Out
Sec. 3.43 To a provision in a general appropriation bill (permitted to
remain by failure to raise a point of order) stating the sense of
Congress that any new Panama Canal treaty must protect the vital
interests of the United States in the Canal Zone and in the
operation, maintenance, and defense of the Canal, an amendment
striking that provision and inserting a statement that it was the
sense of Congress that any such treaty must not abrogate or vitiate
the ``traditional interpretation'' of past Panama Canal treaties,
with special reference to territorial sovereignty, was ruled out as
constituting a different statement of legislative policy, not
merely perfecting in nature, which was further legislation.
On June 10, 1977,(8) during consideration in the
Committee of the Whole of the Departments of State, Justice, Commerce,
and the Judiciary appropriation bill, a point of order was sustained
against the following amendment:
---------------------------------------------------------------------------
8. 123 Cong. Rec. 18402, 18403, 95th Cong. 1st Sess.
---------------------------------------------------------------------------
Mr. [Eldon J.] Rudd [of Arizona]: Mr. Chairman, I offer an
amendment.
(The portion of the bill to which the amendment relates is as
follows:)
Sec. 104. It is the sense of the Congress that any new
Panama Canal treaty or agreement must protect the vital
interests of the United States in the Canal Zone and in the
operation, maintenance, property and defense of the Panama
Canal.
The Clerk read as follows:
[[Page 5315]]
Amendment offered by Mr. Rudd: Page 14, delete lines 1
through 5 and insert in lieu thereof:
Sec. 104. It is the sense of the Congress that any new
Panama Canal treaty or agreement must not abrogate or vitiate
the traditional interpretation of the treaties of 1903, 1936,
and 1955, with special reference to matters concerning
territorial sovereignty. . . .
Mr. [John M.] Slack [of West Virginia]: Mr. Chairman, I make a
point of order reluctantly, because the amendment deals with
matters not addressed in the bill and is clearly legislation on an
appropriation bill. . . .
Mr. Rudd: . . . This is simply a clarification to section 104.
We have heard many statements here this afternoon and this morning
regarding the desire by many of our distinguished colleagues here,
and I think that they are in favor of retaining the Panama Canal.
All this does is to clarify this language, put it in proper
perspective, so that there will be no question about the retention
of the Panama Canal.
The Chairman: (9) The Chair is prepared to rule.
---------------------------------------------------------------------------
9. Walter Flowers (Ala.).
---------------------------------------------------------------------------
The gentleman from Arizona (Mr. Rudd) offered an amendment to
section 104, which is a sense of the Congress section.
The amendment offered by the gentleman from Arizona (Mr. Rudd)
would change the sense of the Congress legislation permitted to
remain in the bill and would clearly alter it. The gentleman's
amendment would be further legislation on an appropriation bill and
subject to a point of order. The Chair must sustain the point of
order made by the gentleman from West Virginia (Mr. Slack).
Repeating Existing Legislation Verbatim; Held in Order
Sec. 3.44 An amendment to a general appropriation bill may not add
further legislation to that permitted to remain in the bill; and
the amendment is not subject to a point of order if containing,
verbatim, a legislative provision already contained in the bill.
On Aug. 27, 1980,(10) where an amendment to a general
appropriation bill prohibited the use of funds therein for the
Occupational Health and Safety Administration for certain purposes, but
exempted from such prohibitions persons ``engaged in a farming
operation which does not maintain a temporary labor camp and employs 10
or fewer employees,'' the Chair, in overruling a point of order against
the amendment, stated,
---------------------------------------------------------------------------
10. 126 Cong. Rec. 23519-21, 96th Cong. 2d Sess.
---------------------------------------------------------------------------
No new duties or determination are required [by the amendment]
and the final proviso, while requiring findings as to the temporary
status of a farm labor camp, is already in the bill and the
amendment does not add legislation to that permitted to remain in
the bill.(11)
---------------------------------------------------------------------------
11. The proceedings are discussed in more detail in Sec. 73.11, infra.
---------------------------------------------------------------------------
[[Page 5316]]
Earmarking Part of Unauthorized Lump Sum; Ruled Out
Sec. 3.45 An unauthorized item in a general appropriation bill being
permitted to remain by a special rule waiving points of order,
figures in such item may be perfected but the provision may not be
changed by an amendment substituting funds for a different and
specified unauthorized purpose.
For an item in a general appropriation bill containing funds for a
nuclear aircraft carrier program, against which points of order had
been waived for failure of the authorization bill to be enacted into
law, a substitute amendment striking out those funds and inserting
unauthorized funds for a conventional-powered aircraft carrier program
was ruled out under Rule XXI clause 2, as unprotected by the waiver
against the bill. The proceedings of Aug. 7, 1978,(12) were
as follows:
---------------------------------------------------------------------------
12. 124 Cong. Rec. 24710, 24712, 95th Cong. 2d Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
For expenses necessary for the construction, acquisition,
or conversion of vessels as authorized by law, including armor
and armament thereof, plant equipment, appliances, and machine
tools and installation thereof in public and private plants; .
. . as follows: . . . for the CVN-71 nuclear aircraft carrier
program, $2,129,600,000. . . .
Mr. [Sidney R.] Yates [of Illinois]: Mr. Chairman, I offer an
amendment.
The Clerk read as follows:
Amendment offered by Mr. Yates: On page 20, line 2, after
``$128,000,000''; strike the words and amount on lines 2 and 3:
``for the CVN-71 nuclear aircraft carrier program,
$2,129,600,000;''
On page 20, line 8, after ``in all:'' strike
``$5,688,000,000,'' and insert in lieu thereof
``$3,558,400,000,''. . . .
Mr. [Bill D.] Burlison of Missouri: Mr. Chairman, I offer an
amendment as a substitute for the amendment.
The Clerk read as follows:
Amendment offered by Mr. Burlison of Missouri as a
substitute for the amendment offered by Mr. Yates: Page 20,
line 2, strike out ``for the CVN-71 nuclear aircraft carrier
program, $2,129,600,000;'' and insert in lieu thereof ``for the
conventional-powered aircraft carrier program,
$1,535,000,000.''. . .
Mr. [Charles E.] Bennett [of Florida]: Mr. Chairman, it would
seem to me that this amendment would be subject to a point of
order. I have not deeply researched the matter, but we do have a
bill before us which passed both the House and the Senate, and that
language provided for a nuclear carrier. This bill that is before
us specifically provides for a nuclear carrier, and it does not
provide for any other type of carrier. . . .
The Chairman: (13) The Chair will observe that the
Committee on Rules did waive points of order to the pend
[[Page 5317]]
ing paragraph, but it did not waive points of order against
amendments.
---------------------------------------------------------------------------
13. Daniel D. Rostenkowski (Ill.).
---------------------------------------------------------------------------
The Chair will point out that unauthorized items in a general
appropriation bill being considered under a special rule waiving
all points of order may be perfected by germane amendments merely
changing a figure, but such procedure does not permit the offering
of amendments adding further unauthorized items on appropriation.
As far as the Chair is aware, the conventional powered aircraft
carrier is not authorized, and the Chair would have to sustain the
point of order made by the gentleman from Florida.
Mr. Burlison of Missouri: Mr. Chairman, I believe the Chairman
has not addressed the point that I raised about the authorization
bill itself failing to designate what ships are to be built. In
other words, there is a single figure in the authorization bill for
shipbuilding, and that is what my amendment is to.
The Chairman: The Chair would also have to observe that the
authorization bill is not signed and, therefore, it is not yet law.
The Chair sustains the point of order.
CHAPTER 26
Unauthorized Appropriations; Legislation on Appropriation Bills
A. INTRODUCTORY MATTERS
Sec. 4. The Holman Rule
The Holman rule (Rule XXI clause 2), which had its inception in
the 44th Congress, underwent various modifications between 1876 and
1911. At times it was dropped completely. The formulation of Rule
XXI clause 2, from 1911 until the 98th Congress, and under which
most of the decisions contained in this section were made, was as
follows: (14)
---------------------------------------------------------------------------
14. House Rules and Manual Sec. 834 (1973). See also the note following
Sec. 834, House Rules and Manual, for history of the rule.
---------------------------------------------------------------------------
No appropriation shall be reported in any general appropriation
bill, or be in order as an amendment thereto, for any expenditure
not previously authorized by law, unless in continuation of
appropriations for such public works and objects as are already in
progress. Nor shall any provision in any such bill or amendment
thereto changing existing law be in order, except such as being
germane to the subject matter of the bill shall retrench
expenditures by the reduction of the number and salary of the
officers of the United States, by the reduction of the compensation
of any person paid out of the Treasury of the United States, or by
the reduction of amounts of money covered by the bill: Provided,
That it shall be in order further to amend such bill upon the
report of the committee or any joint commission authorized by law
or the House Members of any such commission having jurisdiction of
the subject matter of such amendment, which amendment being germane
to the subject matter of the bill shall retrench expenditures.
The second sentence of the clause comprises the Holman rule
exception to Rule XXI, and permits legislative provisions in general
appropriation bills or amendments, provided the stated conditions are
met. The exception, of course, is to the prohibition against ``changing
existing law,'' not to the prohibition against unauthorized
appropriations.
A distinction should be noted between provisions meeting the
[[Page 5318]]
criteria of the Holman rule and ``limitations'' of the kind discussed
in the latter part of this chapter.(15) Under the Holman
rule, a provision that is admittedly ``legislative'' in nature is
nevertheless held to fall outside the general prohibition against such
provisions, because it accomplishes specified ends. The ``limitations''
discussed in later sections are not ``legislation'' and are permitted
on the theory that Congress is not bound to appropriate funds for every
authorized purpose.
---------------------------------------------------------------------------
15. See Sec. 64-79, infra.
---------------------------------------------------------------------------
Paragraph (b) of Rule XXI clause 2, as amended in the 98th Congress
narrowed the ``Holman rule'' exception so that it covered only
retrenchments reducing amounts of money covered by the bill, and not
retrenchments resulting from reduction of the number and salary of
officers of the United States or of the compensation of any person paid
out of the U.S. Treasury. Paragraph (b) also eliminated separate
authority conferred upon legislative committees or commissions with
proper jurisdiction to report amendments retrenching expenditures, and
permitted legislative committees to recommend such retrenchments to the
Appropriations Committee for discretionary inclusion in the reported
bill. Paragraph (d) as added in the 98th Congress provides a new
procedure for consideration of all retrenchment amendments only when
reading of the bill has been completed and only if the Committee of the
Whole does not adopt a motion to rise and report the bill back to the
House.(16)
---------------------------------------------------------------------------
16. See Rule XXI clause 2, House Rules and Manual Sec. 834 (1983).
---------------------------------------------------------------------------
In applying the Holman rule, care should be taken, of course, in
assessing the relevance of those decisions which involved
interpretation of that rule but which did not reflect the current form
or interpretation of the rule.(17)
---------------------------------------------------------------------------
17. Some of the precedents which would now be found to be inapplicable,
for example, are those at 4 Hinds' Precedents Sec. 3846, 3885-
92; 7 Cannon's Precedents Sec. Sec. 1484, 1486-92, 1498, 1500,
1515, 1563, 1564, 1569; and the decision of June 1, 1892, found
at 23 Cong. Rec. 4920, 52d Cong. 1st
Sess. -------------------
---------------------------------------------------------------------------
Generally; Abolishing Offices
Sec. 4.1 Legislation to be in order under the Holman rule must be
germane, must retrench expenditures, and the language used must be
essential to the accomplishment of that retrenchment.
On Feb. 29, 1932,(18) the Treasury and Post Office
Departments
[[Page 5319]]
appropriation bill (19) as under consideration. A provision
was read as follows:
---------------------------------------------------------------------------
18. 75 Cong. Rec. 4957, 4958, 72d Cong. 1st Sess.
19. H.R. 9699.
---------------------------------------------------------------------------
The offices of comptrollers of customs, surveyors of customs,
and appraisers of merchandise (except the appraiser of merchandise
at the port of New York), 29 in all, with annual salaries
aggregating $153,800, are hereby abolished. The duties imposed by
law and regulation upon comptrollers, surveyors, and appraisers of
customs, their assistants and deputies (except the appraiser, his
assistants and deputies at the port of New York) are hereby
transferred to, imposed upon, and continued in positions, now
established in the Customs Service by or pursuant to law, as the
Secretary of the Treasury by appropriate regulation shall specify.
. . .
A point of order was then made:
Mrs. [Florence P.] Kahn [of California]: Mr. Chairman, I make a
point of order against the section, beginning in line 16, page 11,
and running through line 8, on page 12, that it is legislation on
an appropriation bill and therefore out of order.
In responding to the point of order, Mr. Joseph W. Byrns, of
Tennessee, stated:
Mr. Chairman, the committee acknowledges that the provision to
which the point of order has been made, abolishing these offices of
appraisers, comptrollers, and surveyors of customs, is legislation
on an appropriation bill and changes existing law.
Under the provisions of clause 2 of Rule XXI, known as the
Holman rule, legislation is in order upon an appropriation bill if
it conforms to that rule.
The pertinent portion of clause 2 of that rule is as follows:
No appropriation shall be reported in any general
appropriation bill, or be in order as an amendment thereto, for
any expenditure not previously authorized by law, unless in
continuation of appropriations for such public works and
objects as are already in progress. Nor shall any provision in
any such bill or amendment thereto changing existing law be in
order, except such as being germane to the subject matter of
the bill shall retrench expenditures by the reduction of the
number and salary of the officers of the United States, by the
reduction of the compensation of any person paid out of the
Treasury of the United States, or by the reduction of amounts
of money covered by the bill. . . .
The committee contends that the paragraph in this bill to which
objection has been raised is in order under the provisions of the
Holman rule.
Under previous decisions legislation to be in order under this
rule must be germane to the bill and must retrench expenditures in
one of the three methods set forth in the rule, namely (1) by
reduction of the number and salary of officers of the United
States, (2) by the reduction of the compensation of any person paid
out of the Treasury of the United States, or (3) by the reduction
of the amounts of money covered by the bill.
Under previous decisions of the House it has also been held
that it is not enough merely to reduce the number and compensation
of officers of the United States or the compensation of any person
paid out of the Treasury, but the legislation must retrench ex
[[Page 5320]]
penditures in doing that. On this point Chairman Saunders, in a
decision on December 9, 1922, said:
The many rulings on this question are fairly uniform. They
all hold that when, on the face of the bill, the proposed new
legislation retrenches expenditures in one of three ways the
point of order should be overruled, and the rule is generally
laid down that the construction should be liberal in favor of
retrenchment of government expenditures.
Under previous decisions it has also been held that the
retrenchment in expenditures must not be conjectural or speculative
but must show on the face of the legislation. In this connection
Speaker Kerr held:
In considering the question whether an amendment operates
to retrench expenditures, the Chair can only look to what is
properly of record before him--that is, the pending bill, the
specific section under consideration, the law of the land, so
far as it is applicable, and the parliamentary rules and
practice of the House; and beyond these he is not permitted to
go in deciding the question.
In discussing the question of the saving, Chairman Saunders
also said:
The Chair can only act upon the proposition which is
presented on the face of that proposition.
In presenting this paragraph under the Holman rule the
committee believes that it answers all of the requirements laid
down under sound decisions:
(1) It is germane; (2) it reduces the number and salary of
officers of the United States; (3) it retrenches expenditures; (4)
the retrenchment is not speculative or argumentative but is
specific; (5) every part of the legislation is essential.
1. Germaneness: The bill makes appropriations for the Customs
Service, and customarily carries salaries for the offices proposed
to be abolished.
2. Reduction of offices and salaries: The paragraph provides
for the abolition of 29 offices established by law and now in
existence, with salaries aggregating annually $153,800. Under the
provisions of the paragraph these offices are eliminated commencing
with the date of approval of this bill. The incumbents in them will
at that time be removed from the pay roll.
3. Retrenchment of expenditures: The paragraph retrenches
expenditures by the elimination of these offices and the saving of
the salaries. That is complete on the face of the legislation.
4. The retrenchment is not speculative: The definiteness of the
saving can not be controverted. The bill abolishes the 29
positions. They will be gone. The duties are transferred
specifically to other positions in the service. The work will be
continued. No added expense will come from this transfer, because
the paragraph provides that the Secretary of the Treasury shall
make the transfer and carry out the legislation without adding any
new positions. The retrenchment is specific, definite, and
complete. There is no escape from saving $153,800, and in making up
this bill the committee has taken out that amount.
5. Every part of the legislation proposed is necessary to the
reduction: The legislation is divided into the following parts:
(a) Abolition of the positions; (b) transfer of the duties to
positions now
[[Page 5321]]
in the service; (c) change in title of existing positions after the
transfer to make the title accord to the new duties transferred to
them; (d) require the Secretary to administer the transfer of
duties in such a way as not to establish any new position.
The necessity of all portions of the legislation and its
intimate relationship to the effectiveness and conclusiveness of
the retrenchment must be apparent. Without all of the parts the
legislation would not be effective.
The Chairman, Edgar Howard, of Nebraska, ruled as follows:
I am afraid the Chair is not in harmony with the position of
the lady from California. It would seem to the Chair that this
paragraph is safely enfolded in the embrace of the Holman Rule. For
the benefit of the lady from California the Chair will say that to
be in order under the Holman Rule three things must concur--first,
it must be germane; second, it must retrench expenditures; and,
third, the language embodied in the paragraph must be confined
solely to the purpose of retrenching expenditures.
The Chair finds upon examination of the paragraph that it is
germane to the portion of the bill wherein it is inserted. The
paragraph on its face definitely reduces the number of officers of
the United States by 29 and thereby saves $153,800, thus
retrenching expenditures.
The remaining question for the Chair to determine is whether
there is any language in the paragraph that is legislation which
does not contribute to the retrenchment of the $153,800.
The Chair has examined the paragraph with considerable care in
order to determine whether the legislation is coupled up with and
essential to the reduction of money. The Chair finds that the
paragraph abolishes a number of positions, that it transfers the
duties heretofore performed by the officers holding those positions
to positions now in the service, that in order to accomplish that
it confers upon the Secretary of the Treasury authority to
designate the titles of the employees now in the service who are to
perform the additional duties, that it requires the Secretary to
administer the transfer of duties in such a way as not to establish
any new positions. It is apparent to the Chair that all the
legislation to be found in the paragraph is necessary to accomplish
the purpose of retrenching expenditures. The Chair thinks that the
paragraph clearly comes within the provisions of the Holman Rule
and overrules the point of order.
Sec. 4.2 A provision in an appropriation bill abolishing the offices of
the surveyor of customs at the Port of New York and seven
comptrollers of customs and transferring the duties of these
officers to positions already established in the Customs Service,
was held to be in order under the Holman rule.
On Feb. 27, 1939,(20) during consideration in the
Committee of the Whole of the Treasury and Post
[[Page 5322]]
Office Departments appropriation bill (H.R. 4492), a point of order was
raised against the following proviso, and proceedings then followed as
indicated below:
---------------------------------------------------------------------------
20. 84 Cong. Rec. 1961, 1962, 76th Cong. 1st Sess.
---------------------------------------------------------------------------
Salaries and expenses: For collecting the revenue from customs,
for the detection and prevention of frauds upon the customs
revenue, and not to exceed $100,000 for the securing of evidence of
violations of the customs laws . . . Provided further, That the
offices of the surveyor of customs at the port of New York and
seven comptrollers of customs, with annual salaries aggregating
$51,600, are hereby abolished. The duties imposed by law and
regulations upon the surveyor of customs at the port of New York
and comptrollers of customs, their assistants and deputies are
hereby transferred to, imposed upon, and continued in positions now
established in the Customs Service by or pursuant to law, as the
Secretary of the Treasury by appropriate regulations shall specify;
and he is further authorized to designate the titles by which such
positions shall be officially known hereafter. The Secretary of the
Treasury, in performing the duties imposed upon him by this
paragraph, shall administer the same in such a manner that the
transfer of duties provided hereby will not result in the
establishment of any new positions in the Customs Service.
Mr. [James M.] Fitzpatrick [of New York]: A point of order, Mr.
Chairman.
The Chairman: (21) The gentleman will state it.
---------------------------------------------------------------------------
21. John W. Boehne, Jr. (Ind.).
---------------------------------------------------------------------------
Mr. Fitzpatrick: Mr. Chairman, I make a point of order against
the language on page 16, line 14, beginning with the words
``Provided further,'' and extending down to line 5, on page 17, as
legislation on an appropriation bill, especially that part of the
language beginning in line 23, which states ``and he is further
authorized to designate the titles by which such positions shall be
officially known hereafter.''
To me this seems to be purely legislation on an appropriation
bill. . . .
The Chairman: Does the gentleman from Indiana wish to be heard?
Mr. [Louis] Ludlow [of Indiana]: Yes, Mr. Chairman. I do not
believe there is any necessity for extended comment on this point
of order.
In 1932 a provision in substantially identical language was
included in the Treasury-Post Office appropriation bill. The
gentlewoman from California [Mrs. Kahn] made a point of order
against the provision. The Chair ruled that the five considerations
essential to the application of the Holman rule were present in the
language proposed, namely, (1) that it was germane, (2) that it
reduced the number and salaries of officers of the United States,
(3) that it retrenched expenditures, (4) that the retrenchment was
not speculative or argumentative but was specific, and (5) that
every part of the legislation was essential.
The point of order was, therefore, overruled and I submit it
should be in the instant case.
May I say further there is no doubt about the application of
the Holman rule in cases where it is ascertainable that there will
be a substantial saving, whether or not any specific amount of
saving is indicated. However, in the instant case we have the
peculiarly ad
[[Page 5323]]
vantageous position of being able to certify to the exact amount in
dollars and cents that will be saved, namely, $51,600. Therefore, I
submit to the Chair this comes clearly within the Holman rule. I
direct the Chair's attention to the fact that we have complied
scrupulously with the Ramseyer rule, and he will find set forth on
page 47 of our report the text of existing legislation and the text
of the legislation we propose in place of it. Having done this, we
have only to comply with the Holman rule to make the provision
invulnerable to a point of order, and this we have done. I ask for
the ruling of the Chair.
Mr. Fitzpatrick: Mr. Chairman, the gentleman from Indiana
states there will be a saving of $51,000. If the Chair will refer
to page 18 of the report he will see that new positions involving a
total of $51,600 will be created in the same department so the
saving is just $600. Therefore, any claim that there will be a
saving of $51,000 is just not so. The report shows new positions
are being created in the same department.
Mr. [Vito] Marcantonio [of New York]: If the gentleman will
yield, may I say that this particular proviso takes powers away
from one branch of a department and confers them on another, which
clearly is legislation.
Mr. Ludlow: Of course, the one has no connection, relation, or
relevancy to the other. All that is necessary for us to say is that
in this transaction by abolishing certain positions we make a
saving of $51,600. If we appropriate a similar amount of money to
another branch for some other purpose, what connection does that
have with this?
Mr. Fitzpatrick: The money is to be appropriated to the same
department for men to perform the same duties as the comptrollers
whose positions you are abolishing.
The Chairman: The Chair is ready to rule.
The gentleman from New York [Mr. Fitzpatrick] makes the point
of order against the proviso on page 16 on the grounds that it
embraces legislation in an appropriation bill. The gentleman from
Indiana contends that although it is legislation on an
appropriation bill it comes within the Holman rule and is therefore
in order. The Holman rule may be found in the second sentence of
clause 2 of rule XXI, and is as follows:
Nor shall any provision in any such bill or amendment
thereto changing existing law be in order, except such as being
germane to the subject matter of the bill shall retrench
expenditures by the reduction of the number and salary of the
officers of the United States by the reduction of the
compensation of any person paid out of the Treasury of the
United States, or by the reduction of amounts of money covered
by the bill.
In order to justify language in an appropriation bill under the
Holman rule three things must concur: First, it must be germane;
second, it must retrench expenditures in one of the ways enumerated
in the rule; and, third, the language embodied in the provision
must be confined solely to the purpose of retrenching expenditures.
The Chair has carefully examined the proviso to which the point
of order is directed and is of the opinion that the language is
germane and that on its face it definitely shows a reduction of the
officers of the United States and a retrenchment of expenditures in
the amount of $51,600.
[[Page 5324]]
It is also apparent to the Chair that all the legislation to be
found in the paragraph is necessary to accomplish the purpose of
retrenching expenditures. The Chair has been fortified in his
opinion on this proposition by a decision made by Chairman Howard
on February 29, 1932, on a proposition almost identical with the
pending proviso. In that instance the Chair overruled the point of
order on the ground that the provision came clearly within the
Holman rule.
For the reasons stated the Chair is of the opinion that the
language to which the point of order has been directed clearly
comes within the provisions of the Holman rule, and, therefore,
overrules the point of order.
Parliamentarian's Note: In both of the decisions cited above, an
argument might have been advanced that a permanent change in law (the
abolishment of an office) rendered the amendment or provision not
germane to a one-year appropriation bill. In another ruling, in 1966,
an amendment providing that appropriations ``herein and heretofore
made'' shall be reduced by $70 million through the reduction of federal
employees as the President determines was held to be legislative and
not germane to the bill, since it went to funds other than those
carried therein, and was therefore not within the Holman rule
exception.(1)
---------------------------------------------------------------------------
1. See 112 Cong. Rec. 27424, 27425, 89th Cong. 2d Sess., Oct. 18,
1966. See also Sec. 5.9, infra.
---------------------------------------------------------------------------
Thus, one of the criteria frequently cited (2) as
essential for application of the Holman rule was not met. Moreover, the
Chair in the 1966 instance ruled that a reappropriation of unexpended
balances, prohibited by Rule XXI clause 5 (now clause 6),(3)
is not in order on a general appropriation bill under the guise of a
Holman rule exception to Rule XXI clause 2.
---------------------------------------------------------------------------
2. See, in addition to the above 1939 ruling, Sec. 4.1, supra.
3. See the discussion of this rule in Ch. 25, Sec. 3, supra.
---------------------------------------------------------------------------
Reduction in Number of Naval Officers
Sec. 4.3 An amendment reducing the number of naval officers and
providing the method by which the reduction should be accomplished
was allowed under the Holman rule.
On Jan. 20, 1938, during consideration in the Committee of the
Whole of the Navy Department appropriation bill (H.R. 8993), a
provision was read as follows: (4)
---------------------------------------------------------------------------
4. 83 Cong. Rec. 853, 75th Cong. 3d Sess.
---------------------------------------------------------------------------
Pay of naval personnel: For pay and allowances prescribed by
law of officers on sea duty and other duty, and officers on waiting
orders, pay--$35,461,649 . . .; pay and allowances of the Nurse
Corps, including assistant
[[Page 5325]]
superintendents, directors, and assistant directors--pay, $560,020;
rental allowance, $24,000; subsistence allowance, $23,871; pay,
retired list, $271,976; in all $879,867; rent of quarters for
members of the Nurse Corps; . . . reimbursement for losses of
property as provided in the act approved October 6, 1917 (34 U.S.C.
981, 982) . . . $10,000; . . . in all, $176,-845,282; and no part
of such sum shall be available to pay active-duty pay and
allowances to officers in excess of nine on the retired list,
except retired officers temporarily ordered to active duty as
members of retiring and selection boards as authorized by law:
Provided, That, except for the public quarters occupied by the
Chief of Office of Naval Operations . . . and messes temporarily
set up on shore for officers attached to seagoing vessels, to
aviation units based on seagoing vessels including officers' messes
at the fleet air bases, and to landing forces and expeditions . . .
no appropriation contained in this act shall be available for the
pay, allowances, or other expenses of any enlisted man or civil
employee performing service in the residence or quarters of an
officer or officers on shore as a cook, waiter, or other work of a
character performed by a household servant.
An amendment was then offered, and a point of order made, as
indicated: (5)
---------------------------------------------------------------------------
5. Id. at pp. 854, 855.
---------------------------------------------------------------------------
The Clerk read as follows:
Amendment offered by Mr. [Byron N.] Scott [of California]:
Page 26, line 8, after the word ``Provided'', insert ``That
commissioned line officers of the active list of the line of
the Navy (Marine Corps) carried by law as additional numbers or
passed over, shall be counted within the authorized total
number of such commissioned officers of the active list of the
line of the Navy: Provided further.''
Mr. [William B.] Umstead [of North Carolina]: Mr. Chairman, I
make a point of order against the amendment offered by the
gentleman. I am willing to reserve the point of order if the
gentleman would like to be heard.
The Chairman: (6) The gentleman will state his point
of order.
---------------------------------------------------------------------------
6. R. Ewing Thomason (Tex.).
---------------------------------------------------------------------------
Mr. Umstead: Mr. Chairman, I make the point of order that it is
legislation upon an appropriation bill, that it is contrary to
existing law, and that it does not and will not result in any
reduction in expenditures under this section.
The Chairman: Does the gentleman from California [Mr. Scott]
care to be heard?
Mr. Scott: Mr. Chairman, I expect the amendment will be held
germane under the exception known as the Holman rule.
I call attention to the fact the act of July 22, 1933, fixes
the maximum commissioned line officers' strength of the Navy-- that
is, the number of line officers that we can have in the Navy at any
one time--at 6,531. This is exclusive of those officers who are
known as additional numbers in grade or additional numbers.
On page 84 of the hearings had by the subcommittee of the
Appropriations Committee and in the second table thereon, it will
be seen that in
[[Page 5326]]
cluding additional numbers the line officers' strength after the
commissioning of the class graduating from the Naval Academy in
June, 1938, would [be] 6,562 and after the commissioning of the
graduating class in June 1939, which is within the fiscal year for
which this bill makes appropriation, the number will be 6,824.
The amendment does change existing law by providing that
officers in additional numbers category shall be included in the
authorized line-officer strength of the Regular Navy. At the
present time additional numbers are not counted as a part of the
authorized line-officer strength, which, as I have said, is 6,531.
If the amendment which I have offered is agreed to, the effect
would be--that is, if no counteracting legislation passes in the
meantime--to deny commissions to at least 293 midshipmen. It would
deny commissions to at least 293 midshipmen graduating in June
1939. This would make a difference between 6,824 and the 6,531
which is the line strength authorized by law.
The table on page 91 of the hearings indicates there will be
591 graduates in June 1939. This would mean a reduction of 293
officers who otherwise would have to be appropriated for and would
retrench expenditures by reduction of the number and salary of the
officers of the United States as follows:
For pay, subsistence, and transportation in the Navy, $44,975
in pay, including subsistence allowance, and $1,418 in
transportation, which is borne out by the figures on pages 236, 242
and 275, page 236 providing for pay, page 242 subsistence and
allowance, and page 275 for transportation. This would show the
exact amount that would be saved by denying commissions to 293
midshipmen graduating in June 1939.
If the amendment is ruled in order I shall later offer
amendments carrying into effect the reduction of amounts that would
be caused if we commissioned the 293 graduates of the academy to
whom I expect to deny commissions. . . .
The Chairman: The Chair is ready to rule, unless the gentleman
from North Carolina would like to be heard further.
In the opinion of the Chair, there is no question about the
germaneness of the amendment. It seems to resolve itself largely
into a question of facts and figures as to whether or not the
amendment comes within the Holman rule. The part of the Holman
rule, with which the members of the Committee are familiar, that is
relevant here, is subsection 2 of rule XXI, which reads as follows:
Nor shall any provision in any such bill or amendment
thereto changing existing law be in order, except such as being
germane to the subject matter of the bill shall retrench
expenditures by the reduction of the number and salary of the
officers of the United States by the reduction of the
compensation of any person paid out of the Treasury of the
United States, or by the reduction of amounts of money covered
by the bill.
Section 1511 of volume VII of Cannon's Precedents of the House,
reads as follows:
A proposition reducing the number of Army officers and
providing the method by which the reduction should be
accomplished was held to come within the exceptions under
[[Page 5327]]
which legislation retrenching expenditure is in order on an
appropriation bill.
A reading of the amendment, together with the facts stated by
the gentleman from California which, in the opinion of the Chair,
have not been successfully controverted, that the amendment will
actually reduce the number of officers as well as effect a
retrenchment of expenditures thereby brings the amendment within
the Holman rule cited by the Chair, and therefore the point of
order is overruled.
Ceiling on Employment
Sec. 4.4 To an appropriation bill, an amendment providing that no part
of any appropriation therein shall be used to pay the compensation
of any incumbent appointed to any position which may become vacant
during the year, except when the agency involved has reduced its
number of personnel in a specified manner, was held to be in order
under the Holman rule as a reduction in the number and salary of
the officers of the United States.
On Mar. 21, 1952,(7) after an amendment had been offered
to the independent offices appropriation bill (H.R. 7072), the
following point of order was raised, and the decision of the Chair was
as indicated above. The amendment was as follows:
---------------------------------------------------------------------------
7. 98 Cong. Rec. 2696, 82d Cong. 2d Sess.
---------------------------------------------------------------------------
Amendment offered by Mr. Jensen: Page 64, after line 21, insert
a new section as follows:
``No part of any appropriation or authorization contained in
this act shall be used to pay the compensation of any incumbent
appointed to any civil office or position which may become vacant
during the fiscal year beginning on July 1, 1952: Provided, That
this inhibition shall not apply--
``(a) to not to exceed 25 percent of all vacancies;
``(b) to positions filled from within a department, independent
executive bureau, board, commission, corporation, agency or office,
provided for in this act. . . . Provided further, That when any
department, independent executive bureau, board, commission,
corporation, agency or office, contained in this act shall, as the
result of the operation of this amendment reduce its personnel to a
number not exceeding 90 percent of the total number provided for in
this act, such amendment may cease to apply and said 90 percent
shall become a ceiling for employment during the fiscal year 1953,
and if exceeded at any time during fiscal year 1953 this amendment
shall again become operative.''
Mr. [Albert] Thomas [of Texas]: Mr. Chairman, I make a point of
order against the amendment on the ground that it is legislation on
an appropriation bill, and on the further ground that it places
extra burdens and duties on the various boards, agencies, and
bureaus.
[[Page 5328]]
The Chairman: (8) Will the gentleman point out the
specific language in the amendment to which he refers?
---------------------------------------------------------------------------
8. Wilbur D. Mills (Ark.).
---------------------------------------------------------------------------
Mr. Thomas: Yes, it is near the end:
As the result of the operation of this amendment reduce its
personnel to a number not exceeding 90 percent of the total
number provided for in this act, such amendment may cease to
apply and said 90 percent shall become a ceiling for employment
during the fiscal year 1953, and if exceeded--
There is an alternative there, as the Chair will see--
at any time during fiscal year 1953 this amendment shall again
become operative.
Somebody has got to make some decisions there; it places extra
duties in order to arrive at decisions; and on top of that it is
legislation.
The Chairman: The Chair will be glad to hear the gentleman from
Iowa briefly if he desires to be heard on the point of order.
[Mr. [Ben F.] Jensen [of Iowa]: Mr. Chairman, the best
evidence that this amendment is germane to the bill and is not
legislation is the fact that the amendment was adopted by the House
last year and was held to be germane by the Chair. Points of order
were raised against it at that time, as I recall.
The amendment is not mandatory in the sense that the word
``may'' is used where the additional burdens and responsibilities
might be placed on the agencies other than the 10 percent reduction
that must be made which is purely a limitation on an appropriation
bill and comes within the language and the intent of the Holman
rule.
Mr. [Albert A.] Gore [of Tennessee]: Mr. Chairman, may I be
heard on the point of order?
The Chairman: The Chair will hear the gentleman.
Mr. Gore: Mr. Chairman, the amendment offered by the gentleman
from Iowa is legislation on an appropriation bill for the following
reasons: As stated in the next to the fourth line from the bottom,
upon the attainment of that condition under operation of the
amendment, thereupon the amendment affirmatively legislates in the
following language:
Said 90 percent shall become a ceiling for employment
during the fiscal year 1953.
That language, I respectfully submit, Mr. Chairman, is
legislation, it is affirmatively fixing a legal ceiling upon the
employment upon the attainment of a condition in the amendment;
therefore I respectfully suggest it is legislation on an
appropriation bill.
The Chairman: . . . The gentleman from Tennessee says that the
language contained in the amendment ``said 90 percent shall become
a ceiling for employment during the fiscal year 1953'' is
legislation.
The Chair is of the opinion that even if that language is
legislation, it is clearly within the Holman rule, as suggested by
the gentleman from Iowa (Mr. Jensen). This, in the opinion of the
Chair, is a limitation within the meaning of the Holman rule by
limiting the number of employees within these agencies of
Government covered by this bill and the amount of money to be made
available under this bill.
. . . The Chair is of the opinion that the amendment is in
order and there
[[Page 5329]]
fore overrules the point of order made by the gentleman from Texas.
Reduction of Total Appropriation
Sec. 4.5 To a general appropriation bill, an amendment providing that
total appropriations therein be reduced by a specified amount was
held in order (even though legislative in form) since it provided
for a retrenchment of expenditures and thus came within the Holman
rule.
On Apr. 5, 1966, (9) during consideration in the
Committee of the Whole of the Interior Department appropriation bill
(H.R. 14215), the following proceedings took place:
---------------------------------------------------------------------------
9. 112 Cong. Rec. 7689, 89th Cong. 2d Sess.
---------------------------------------------------------------------------
[Mr. [Frank T.] Bow [of Ohio]: Mr. Chairman, I offer an
amendment.
The Clerk read as follows:
Amendment offered by Mr. Bow: On page 46, after line 21,
insert a new section as follows:
``Sec. 302. Appropriations made in this Act are hereby
reduced in the amount of $7,293,000.''
Mr. [Winfield K.] Denton [of Indiana]: Mr. Chairman, I make a
point of order against the amendment, but will reserve the point of
order. . . .
Mr. Chairman, there are numerous agencies covered by this
appropriation bill. While the executive branch has discretion not
to spend this money, the proposed amendment would force the
Executive to assign priorities to the various agencies. It would
place discretionary action with the President and, it is the
Congress who determines how funds shall be appropriated. The
amendment would take that authority from the Congress and give it
to the Executive.
The Chairman: (10) I understand that the gentleman
from Indiana is insisting on his point of order?
---------------------------------------------------------------------------
10. Charles M. Price (Ill.).
---------------------------------------------------------------------------
Mr. Denton: Yes, Mr. Chairman.
The Chairman: The Chair is prepared to rule. The amendment
would reduce the appropriations in this bill in the amount of
$7,293,000. The so-called Holman rule provides:
Nor shall any provision in any such bill or amendment
thereto changing existing law be in order, except such as being
germane to the subject matter of the bill shall retrench
expenditures by the reduction of the number and salary of the
officers of the United States, by the reduction of the
compensation of any person paid out of the Treasury of the
United States, or by the reduction of amounts of money covered
by the bill.
Therefore, the Chair overrules the point of order.
Reducing Funds, Prohibiting Particular Use
Sec. 4.6 An amendment reducing an amount in a general appropriation
bill for the Postal Service and providing that no funds therein be
used to
[[Page 5330]]
implement special bulk third-class rates for political committees
was held in order either as a negative limitation not specifically
requiring new determinations or as a retrenchment of expenditures
under the ``Holman Rule'' even assuming its legislative effect,
since the reduction of the amount in the bill would directly
accomplish the legislative result.
On July 13, 1979,(11) during consideration in the
Committee of the Whole of H.R. 4393 (Treasury Department, Postal
Service and general government appropriation bill) a point of order
against an amendment was overruled as indicated below:
---------------------------------------------------------------------------
11. 125 Cong. Rec. 18453-55, 96th Cong. 1st Sess.
---------------------------------------------------------------------------
The Chairman: (12) The Clerk will read.
---------------------------------------------------------------------------
12. Richardson Preyer (N.C.).
---------------------------------------------------------------------------
The Clerk read as follows:
For payment to the Postal Service Fund for public service
costs and for revenue foregone on free and reduced rate mail,
pursuant to 39 U.S.C. 2401 (b) and (c), and for meeting the
liabilities of the former Post Office Department to the
Employees' Compensation Fund and to postal employees for earned
and unused annual leave as of June 30, 1971, pursuant to 39
U.S.C. 2004, $1,697,558,000.
[Mr. [Dan] Glickman [of Kansas]: Mr. Chairman, I offer an
amendment.
The Clerk read as follows:
Amendment offered by Mr. Glickman: On page 9, line 3,
delete ``$1,697,558,000.'' and insert in lieu thereof
``$1,672,810,000: Provided, That no funds appropriated herein
shall be available for implementing special bulk third-class
rates for `qualified political committees' authorized by Public
Law 95-593.''. . .
[Mr. [Robert C.] Eckhardt [of Texas]: My point of order is that
the amendment places a burden on the Postal Department which would
not exist but for this amendment. . . . [I]f the amendment is
passed, it does not merely withhold funds, but it requires the
Postal Department to adjust the rates of the Postal Department in
order to comply with the limitation contained in this amendment.
Therefore, this is not a mere limitation on an appropriation but it
is a limitation which requires the Postal Department, as the
gentleman has stated in his letter, to adjust all rates, determine
which rates need adjustments, which ones qualify or would not
qualify under the provision, and, thus, reduce those rates to the
figures that would permit the reduction in revenue. Therefore, it
seems clear to me that this affords an extremely heavy burden on
the Postal Department which would not otherwise exist but for the
passage of the amendment. If this were not true, the situation
would create an anomalous condition which I had pointed out in my
initial question to the gentleman in the well and the author of the
amendment. It would create a situation in which the benefits
provided under section 3626 of title 39 would still be enjoyed by
qualifying political committees, and yet the Postal Department
would not
[[Page 5331]]
be able to receive the adjustment due to the additional costs. It
seems to me that in effect if the gentleman is correct and if
adjustments are made in the rate, there is another change in
substantive law occasioned by the adjustment in rates. That is, the
adjustment in rates substantively changes Public Law 95-593 so as
to deprive qualified political committees, including the Democratic
Committee and the Republican Committee, and all others that
qualify, of the benefits that we have enacted in another piece of
legislation, not one that deals with the Postal Department but
deals generally with the rates of political parties with respect to
the use of the mails.
Mr. Glickman: . . . The amendment is strictly one of
limitation. It reduces funding by $25 million and limits the use of
that funding with respect to the charging of postal rates. I would
state for the gentleman and for the Chair that section 3627 of
title 39, United States Code is discretionary authority to adjust
rates if the appropriation fails and is not mandatory authority
and, therefore, I do believe that the amendment is merely a
limitation and is germane. . . .
The Chairman: The Chair is prepared to rule on the point of
order.
In the opinion of the Chair, the amendment constitutes a
negative limitation on how funds in the bill are spent rather than
being legislation on an appropriations bill. No new determinations
are required. Even if the amendment should be considered as
constituting legislation, it constitutes a retrenchment because it
cuts the amounts in the bills and the legislative effect directly
contributes to that reduction.
The Chair, therefore, overrules the point of order.
Exception From a Retrenchment
Sec. 4.7 To an amendment in order under the Holman rule containing
legislation but retrenching expenditures by a formula reduction for
every agency funded by the bill, an amendment exempting from that
reduction several specific programs does not add further
legislation and is in order.
On July 30, 1980, (13) during consideration in the
Committee of the Whole of the Department of Agriculture appropriation
bill (H.R. 7591), a point of order against an amendment was not
sustained, as indicated below:
---------------------------------------------------------------------------
13. 126 Cong. Rec. 20503, 96th Cong. 2d Sess.
---------------------------------------------------------------------------
Mr. [Jamie L.] Whitten [of Mississippi]: Mr. Chairman, I offer
an amendment to the amendment.
The Clerk read as follows:
Amendment offered by Mr. Whitten to the amendment offered
by Mr. (Herbert E.) Harris (of Virginia): Strike (out the)
period and add: ``, except that this limitation shall not apply
to emergency or disaster programs of the Farmers Home
Administration and the Agricultural Stabilization and
Conservation Service and programs for the control of infectious
or contagious diseases of hu
[[Page 5332]]
mans and animals carried out by the Food and Drug
Administration and the Animal and Plant Health Inspection
Service.''.
Mr. Harris: Mr. Chairman, I would like to make a point of order
on that amendment. . . .
I feel the amendment is clearly legislation on an
appropriation bill and does in fact do violence to my amendment. .
. .
Mr. Whitten: . . . Deschler's Procedure, chapter 25, section
9.7 (states):
An exception to a valid limitation in a general
appropriation bill is in order, providing the exception does
not add language legislative in effect.
I do not consider that this adds legislative language to the
amendment. It is an exception to the limiting provision as offered.
I respectfully submit that it is in order and should be considered.
The Chairman: (14) The Chair is ready to rule.
---------------------------------------------------------------------------
14. James C. Corman (Calif.).
---------------------------------------------------------------------------
An exception to a limitation or a retrenchment which does not
add legislation is clearly in order under the precedents, and the
point of order is not sustained.
Exception From a Limited Use
Sec. 4.8 To an amendment retrenching expenditures in a general
appropriation bill by reducing amounts therein and prohibiting
their availability to particular recipients, an amendment lessening
the amount of the reduction and also providing an exception from
the limitation may be in order as a perfection of the retrenchment
if funds contained in the bill remain reduced thereby.
On July 13, 1979,(15) it was held that, to an amendment
to a general appropriation bill limiting the use of funds for the
Postal Service to implement special mail rates for qualified political
committees as authorized by law, an amendment lessening the amount of
the reduction of funds in the original amendment and also excepting
from the limitation certain congressional political committees as
defined in law was in order either as an exception from a valid
limitation which did not add legislation (since the determinations as
to which political committees fit those descriptions were already
required by law of the Postal Service) or as perfecting a retrenchment
amendment while still reducing funds in the bill. The proceedings were
as follows:
---------------------------------------------------------------------------
15. 125 Cong. Rec. 18456, 18457, 96th Cong. 1st Sess.
---------------------------------------------------------------------------
Mr. [William D.] Ford of Michigan: Mr. Chairman, I offer an
amendment to the amendment.
The Clerk read as follows:
Amendment offered by Mr. Ford of Michigan to the amendment
offered
[[Page 5333]]
by Mr. [Dan] Glickman [of Kansas]: On page 9, line 3, delete
``$1,697,558,000.'' and insert in lieu thereof
``$1,676,810,000'' and strike the period after ``Public Law 95-
593'' and insert the following: ``, other than the national,
state or congressional committee of a major or minor party as
defined in Public Law 92-178, as amended.''. . .
Mr. [Robert C.] Eckhardt [of Texas]: Mr. Chairman, the Ford
amendment, is, indeed legislation on an appropriations act, because
by limiting the amount available under the bill, the Postal Service
will be required to establish two different rates; one for major
and minor political parties entitled under the bill and another
rate for political parties which do not qualify.
Unlike the discretionary authority under section 3627, this
adjustment would be mandatory.
I would like to point out that the reference in the bill is to
Public Law 92-178, which in its title VII deals with certain tax
incentives for contributions to candidates for public office and
which sets out certain definitions with respect to national
committees of national political parties and State committees of a
national political party as designated by the national committee of
such party. . . .
Now, there are definitions here and those definitions must be
addressed by another body besides the Post Office Department; but
here the Post Office Department is going to have to determine
whether a committee is a State committee of a national political
party as designated by the national committee of such party and
must apply the definitions as the result of additional duties
attributed and ascribed to the Postal Department that are not
previously attributable to that Department; so there is, indeed, an
additional burden with respect to defining or establishing and
applying the definition of a major or minor party as defined under
this law and also with respect to establishing two separate rates
in order to accomplish the objective sought here. . . .
Mr. Ford of Michigan: . . . First, I believe that the gentleman
from Texas (Mr. Eckhardt) confuses the addition of duties to the
executive branch that require the exercise of discretion and the
imposition of an obligation to make determinations that would not
otherwise have to be made.
What our amendment does is it simply refers them to a clearly
defined interpretation, consistent with virtually everything else
that is contained in the postal code, with respect to qualifying
and nonqualifying people. . . .
The second point is that I would refer to the gentleman's
argument against the amendment offered by the gentleman from Kansas
(Mr. Glickman) on this point of order in which he pointed out that
the effect of not adopting the amendment offered by the gentleman
from Kansas (Mr. Glickman) would be that the law would not be
changed, and that the Post Office Department would have a
continuing duty to determine whether a political party was a
political party for the purpose of giving them a subsidy, even
without the Glickman amendment. I suggest that the effect of
knocking out my amendment will be to leave the duty of the Postal
Service to make that determination much broader and much more
complex then it would with the narrowing effect of our amendment
which requires that they need only
[[Page 5334]]
pick up the telephone and call the Federal Election Commission and
ask, ``Who, if anyone, qualifies for this class of mail? We have
got some people who are applying for a permit. Shall we grant them
the permit?''
The way this discretion is exercised is not that you mail a
letter and wait to see if the Post Office catches you; you go down
to the Post Office first and you say, ``I am representing the
Democratic''--or the Republican--``National Committee. We wish to
have a permit with a number assigned to us so that our mail is
clearly identified and to entitle us to mail as a nonprofit
organization third class bulk mail.''
At that point the Postal Service makes a determination as to
whether or not you qualify. They do not make a determination as to
whether the Democratic Party or the Republican Party qualifies;
they simply pick up the phone and call the FEC and find out. . . .
The Chairman: (16) The Chair is prepared to rule.
---------------------------------------------------------------------------
16. Richardson Preyer (N.C.).
---------------------------------------------------------------------------
Exceptions to limitations or retrenchments permitted to remain
in the bill are permitted if not constituting additional
legislation. In the opinion of the Chair, the law already imposes a
duty on the Postal Service, under Public Law 95-593, to determine
whether any political committee is a National, State, or
congressional committee of a political party.
Public Law 95-593 provides definitions of what constitutes
political parties. Since these standards exist in the law, it is
the opinion of the Chair that no additional burden is imposed by
the amendment, or, in any event, the amendment remains a
retrenchment, and the point of order is overruled.
CHAPTER 26
Unauthorized Appropriations; Legislation on Appropriation Bills
A. INTRODUCTORY MATTERS
Sec. 5. Provisions Not Within the Halman Rule
Certainty of Reduction Must Appear
Sec. 5.1 An amendment to a general appropriation bill, proposing
legislation which may result in a future deficiency appropriation
and therefore does not patently reduce expenditures, though
providing for a reduction in the figures of an appropriation, is
not in order under the Holman rule.
On June 3, 1959,(17) during consideration in the
Committee of the Whole of the Defense Department appropriation bill
(H.R. 7454), a point of order was raised against the following
amendment, and proceedings ensued as indicated below:
---------------------------------------------------------------------------
17. 105 Cong. Rec. 9714, 9715, 86th Cong. 1st Sess.
---------------------------------------------------------------------------
Amendment offered by Mr. [Daniel J.] Flood [of Pennsylvania]:
Page 2, line 12, strike out ``$3,233,063,000'' and insert
``$3,233,000,000, to be disbursed in such manner that the military
personnel, Regular Army, shall be maintained at not less than
900,000 during fiscal year 1960.''
[[Page 5335]]
Mr. [George H.] Mahon [of Texas]: Mr. Chairman, I make a point
of order against the amendment on the ground that it is legislation
on an appropriation bill. . . .
Mr. Flood: Mr. Chairman, the amendment I have just offered,
instead of raising the bill and adding money, reduces the amount of
the appropriation and is in the nature of a retrenchment. I take
the position that it is, first, germane to the bill, obviously.
And, secondly, it is obviously a retrenchment because it reduces
the amount of the appropriation instead of adding to it, and it
directs that the funds be used for the purpose of keeping the Army
strength or making the Army strength at 900,000. The only question
that would be in debate on the point of order made by my friend,
the gentleman from Texas, would be as to the latter provision.
Certainly, this amendment is germane. Secondly, I submit it is a
retrenchment. . . .
. . . I submit to you, sir, in the bill itself there is a
provision under the general provisions thereof stating that the
funds in this bill cannot be used for any other purpose than those
declared in the bill, and no other funds can be used for that
purpose.
I submit, sir, that this is a flat, and intended by me to be a
flat, limitation upon the Department of Defense. It permits no
discretion to be utilized so it can be abused. It is a flat
limitation upon the expenditure of funds. . . .
The Chairman: (18) Does the gentleman from Texas
desire to be heard on the point of order?
---------------------------------------------------------------------------
18. Eugene J. Keogh (N.Y.).
---------------------------------------------------------------------------
Mr. Mahon: Mr. Chairman, I would like to be heard briefly. . .
.
Mr. Chairman, all limitations on the size of military personnel
have been suspended by Public Law 86-4, section 2, until 1963.
Therefore there are no limitations--ceilings or floors--in effect
during fiscal year 1960.
The amendment proposed would have the effect of establishing a
floor as to the size of military force.
This amendment imposes additional duties on the executive
branch since it would require them to maintain a specific number of
troops, a requirement which does not exist at the present time. The
amendment therefore is legislation on an appropriation bill.
This does make a reduction of $63,000 in the amount carried in
the bill but funds would have to be disbursed on the deficiency
basis which will require the appropriation of additional funds for
this same purpose during fiscal year 1960 which is the period
covered by this bill. Therefore, this is not a retrenchment as
provided by the Holman rule. The language itself does not show
retrenchment on its face. . . .
Mr. Flood: Mr. Chairman, what I say will be a complete
rebuttal. The only element the gentleman brings in is the question
of the use of the funds. Certainly this affects the use of
additional funds unless the Department of Defense came in for
supplemental appropriations which would have to be by act of the
President as an affirmative act.
The amendment is a limitation on the expenditure of funds in
their discretion.
The Chairman: The Chair is prepared to rule. . . .
While in the opinion of the Chair this amendment does in effect
seek to
[[Page 5336]]
retrench expenditures, it does by the language added impose upon
the executive branch a mandatory duty of maintaining personnel at a
figure greater than provided in the pending bill; and in the
opinion of the Chair constitutes legislation on an appropriation
bill. Therefore, the Chair sustains the point of order.
Reduction Must Be Certain, Not Speculative
Sec. 5.2 To come within the purview of the Holman rule, it must
affirmatively appear that a proposition, if adopted, will retrench
expenditures as a definite result, not as a probable or possible
contingency.
On Mar. 7, 1940,(19) during consideration in the
Committee of the Whole of the Interior Department appropriation bill
(H.R. 8745), a point of order was raised against the following
provision, and after argument, the Chair ruled that the provision was
not in order.
---------------------------------------------------------------------------
19. 86 Cong. Rec. 2512-14, 76th Cong. 3d Sess.
---------------------------------------------------------------------------
Salaries and expenses: For all necessary expenditures of the
Bituminous Coal Division in carrying out the purposes of the
Bituminous Coal Act of 1937, approved April 26, 1937 (50 Stat. 72)
. . . $2,187,800: Provided, That the first paragraph of subsection
``(e)'' of part II of the Bituminous Coal Act of 1937 (50 Stat.
72), is amended by inserting at the end of such paragraph and
before the period the following: ``: Provided further, That the
provisions of this act shall not apply to a sale of bituminous coal
for the exclusive use of the United States or of any State or
Territory of the United States or the District of Columbia, or any
political subdivision of any of them.''
Mr. [Andrew] Edmiston [of West Virginia]: Mr. Chairman, a point
of order.
The Chairman: (20) The gentleman will state it.
---------------------------------------------------------------------------
20. Jere Cooper (Tenn.).
---------------------------------------------------------------------------
Mr. Edmiston: Mr. Chairman, I make a point of order against the
proviso on page 8, beginning in line 7 and ending in line 14. . . .
Mr. [James M.] Fitzpatrick [of New York]: Mr. Chairman, I
believe this amendment comes under the Holman rule. Eight percent
of all the coal handled by this Commission will be used by the
Federal, State, and city governments throughout the country. About
35,000,000 tons of coal will be used, and it will cost the Federal,
State, and city governments approximately $3,850,000. It will cost
the Federal Government alone $1,100,000.
The appropriation in this bill is $2,187,800 for the
administration of the act. It will not be necessary for the
Commission to handle about 8 percent of all the coal coming under
the Bituminous Coal Act if this amendment is agreed to. It is hard
to say whether or not it will save $187,000, which would be about 8
percent of the total amount allowed in the bill for administering
the act. In my opinion it will certainly save from $20,000 to
$100,000. If that is so, it surely is germane to the act,
[[Page 5337]]
and it will save the different cities, States, and the Federal
Government over $3,000,000. . . .
Mr. [John] Taber [of New York]: Mr. Chairman, that this item is
legislation is specifically set out in the language between lines 7
and 10 on page 8 in that it proposes to add a paragraph to
subsection (e) of part 2 of the Bituminous Coal Act of 1937. . . .
The language carried here does none of those things which are
covered by the Holman rule. It is not in any way in order, nor does
it appear that the language in any way effects a saving to the
Treasury of the United States. Under these circumstances it is not
legislation in line with the Holman rule, but quite the contrary,
and the point of order should be sustained. . . .
The Chairman: The Chair is prepared to rule. . . .
The gentlemen speaking in opposition to the point of order have
endeavored to justify the provision appearing in the bill to which
reference has been made on the ground that it comes within the
provisions of the so-called Holman rule. . . .
The Chair . . . invites attention to page 56 of Cannon's
Procedure in the House of Representatives, and quotes as follows: .
. .
It must affirmatively appear upon the face of the bill that
the proposition, if enacted, will retrench expenditures.
A retrenchment of expenditure relied upon to bring a
proposition within the exception to the rule prohibiting
legislation on an appropriation bill must be apparent from its
terms, and a retrenchment conjectural or speculative in its
application, or requiring further legislation to effectuate, is
not admissible.
The Chair also invites attention to another precedent directly
in point to a proper consideration of the question here presented,
section 1530, volume VII of Cannon's Precedents, quoting:
The reduction of expenditure relied upon to bring a
proposition within the exception to the rule prohibiting
legislation on an appropriation bill must appear as a certain
and necessary result and not as a probable or possible
contingency.
The language of the proviso to which the point of order is made
is as follows:
Provided, That the first paragraph of subsection '(e)' of
part II of the Bituminous Coal Act of 1937 (50 Stat. 72), is
amended by inserting at the end of such paragraph and before
the period the following: ``Provided further, That the
provisions of this act shall not apply to a sale of bituminous
coal for the exclusive use of the United States or of any State
or Territory of the United States or the District of Columbia,
or any political subdivision of any of them.''
It seems to the Chair that this language is legislation on a
general appropriation bill. The very language itself clearly shows
that the purpose sought to be accomplished is the amendment of
existing law. Therefore, as it appears so clearly that it is
legislation on an appropriation bill, under the provision of the
rule to which the Chair has referred and based upon the previous
decisions and precedents here cited, the Chair feels that this
provision does not properly come within that provision of clause 2
of rule XXI, known as the Holman rule.
The Chair, therefore, sustains the point of order made by the
gentleman from West Virginia as to the proviso.
[[Page 5338]]
Reduction Cannot Be Contingent on Event
Sec. 5.3 To a paragraph appropriating money for the National Bituminous
Coal Commission, an amendment providing that if the act
appropriated for is declared unconstitutional by the Supreme Court
none of the money provided in the bill shall thereafter be spent
was held not to be in order under the Holman rule [the reduction of
funds not being certain] but was viewed as a limitation.
On Jan. 24, 1936,(1) the Committee of the Whole was
considering H.R. 10464, a supplemental appropriation bill. The
following proceedings took place:
---------------------------------------------------------------------------
1. 80 Cong. Rec. 994, 996, 74th Cong. 2d Sess.
---------------------------------------------------------------------------
National Bituminous Coal Commission
Salaries and expenses, National Bituminous Coal Commission: For
all necessary expenditures of the National Bituminous Coal
Commission in performing the duties imposed upon said Commission by
the Bituminous Coal Conservation Act of 1935, including personal
services and rent in the District of Columbia and elsewhere,
traveling expenses, contract stenographic reporting services,
stationery and office supplies and equipment, printing and binding,
and not to exceed $2,500 for newspapers, reference books, and
periodicals, fiscal year 1936, $400,000: Provided, That this
appropriation shall be available for obligations incurred on and
after September 21, 1935, including reimbursement to other
appropriations of the Department of the Interior for obligations
incurred on account of said Commission. . . .
Mr. [Robert L.] Bacon [of New York]: Mr. Chairman, I offer an
amendment.
The Clerk read as follows:
Amendment offered by Mr. Bacon: Page 22, line 11, after the
word ``Commission'', insert ``Provided, That if the Bituminous
Coal Conservation Act of 1935 is declared to be
unconstitutional by the Supreme Court of the United States, no
money herein provided shall thereafter be spent, and all money
herein appropriated and unexpended shall be immediately covered
back into the Treasury.''
Mr. [Clifton A.] Woodrum [of Virginia]: Mr. Chairman, I make a
point of order against the amendment.
The Chairman: (2) The gentleman will state his point
of order.
---------------------------------------------------------------------------
2. Jere Cooper (Tenn.).
---------------------------------------------------------------------------
Mr. Woodrum: This seems to me to be legislation undertaking to
effect a limitation. If, of course, the Supreme Court declares the
act unconstitutional, expenditures under it will cease and no money
may thereafter be expended under the act.
Mr. Bacon: Mr. Chairman, it seems to me this is an amendment
that comes within the Holman rule, that it is a limitation saving
money for the Treasury of the United States.
Mr. Woodrum: But it is made contingent on something that may or
may not happen.
[[Page 5339]]
Mr. Bacon: Yes; it is made contingent on something happening.
Mr. [Kent E.] Keller [of Minnesota]: Mr. Chairman, if the
gentleman will yield, is the gentleman suggesting that the Congress
should hint the unconstitutionality of a law before it is passed on
by the Supreme Court?
The Chairman: The Chair is of the opinion that the Holman rule
does not necessarily apply. The Chair is of the opinion, however,
that the amendment is a limitation. The purport of the amendment
taken as a whole impresses the Chair as being a limitation.
Mr. Woodrum: May I call the attention of the Chair to the fact
that the amendment means hereafter, any time in the future, any
appropriation that hereafter may be made, and that it is not
confined to the appropriation in this bill?
The Chairman: Yes; that is the very point on which the Chair's
decision turns. The Chair interprets the words used in the
amendment to mean that it refers to the appropriation provided in
this bill. It would, therefore, be a limitation on the
appropriation here provided. The Chair, therefore, overrules the
point of order.
Parliamentarian's Note: The distinction was made in Sec. 4, supra,
between (1) provisions which, although legislative in nature, are
nevertheless in order under the Holman rule, and (2) provisions which
are not legislative in nature but are, rather, in order as proper
``limitations.'' Limitations are discussed in Sec. Sec. 64-79, infra.
As an example of those instances in which the Holman rule is cited in
support of an amendment but found inapplicable, the Chair relying
instead on language of limitation, see Sec. 64.27, infra, discussing
the ruling of July 16, 1979. At issue on that occasion was an amendment
to a general appropriation bill prohibiting the use of funds therein to
carry out any ruling of the Internal Revenue Service to the effect that
taxpayers are not entitled to certain charitable deductions. The Chair
first indicated that the Holman rule was inapplicable, since the
certainty of a reduction in expenditures did not appear. But the
amendment was held in order as a limitation, since the amendment was
merely descriptive of an existing ruling already promulgated by that
agency and did not require new determinations as to the applicability
of the limitation to other categories of taxpayers.
Reduction Cannot Be Conjectural
Sec. 5.4 Language in a general appropriation bill providing that ``in
the discretion of the Secretary of the Interior, not to exceed $3
per diem in lieu of subsistence may be allowed to Indians actually
traveling away from their
[[Page 5340]]
place of residence when assisting in organization work'' was held
to be legislation and not in order under the Holman rule.
On May 14, 1937,(3) during consideration in the
Committee of the Whole of the Interior Department appropriation bill
(H.R. 6958), a point of order was raised against the following
provision, and proceedings ensued as indicated below:
---------------------------------------------------------------------------
3. 81 Cong. Rec. 4592, 75th Cong. 1st Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
For expenses of organizing Indian chartered corporations,
or other tribal organizations, in accordance with the
provisions of the act of June 18, 1934 (48 Stat., p. 986),
including personal services, purchase of equipment and
supplies, not to exceed $3,000 for printing and binding, and
other necessary expenses, $100,000, of which not to exceed
$25,000 may be used for personal services in the District of
Columbia: Provided, That in the discretion of the Secretary of
the Interior, not to exceed $3 per diem in lieu of subsistence
may be allowed to Indians actually traveling away from their
place of residence when assisting in organization work.
Mr. [John] Taber [of New York]: Mr. Chairman, I make the point
of order against the paragraph upon the ground that it contains
legislation and changes existing law, that the provision appearing
on page 16, from lines 16 to 20, is legislation not authorized by
law, and I make the point of order against the entire paragraph. .
. .
Mr. [Jed] Johnson of Oklahoma: Mr. Chairman, this is clearly
within the Holman rule. This retrenches expenditures. The Pay and
Subsistence Act authorizes $5 a day. This simply reduces the per
diem to $3 a day. Therefore I feel confident that this is within
the Holman rule.
Mr. Taber: Mr. Chairman, I do not believe there is any
authority in law for the payment of any money for Indians for
traveling away from their place of residence in connection with
this work. In any event the proviso imposes new duties upon the
Secretary of the Interior to determine in his discretion when funds
may be allowed to Indians. The chairman of the committee has not
cited us to any authority providing for any funds being allotted to
Indians for such travel. The imposition of these additional duties
upon the Secretary of the Interior make it clearly subject to the
point of order.
The Chairman: (4) The Chair is ready to rule. The
Chair thinks that the first part of the paragraph down to the
proviso in line 16 on page 16 is authorized under section 9 of the
statute approved June 18, 1934, and, therefore, is in order. The
Chair thinks, however, so far as the proviso, line 16 down to the
word ``work'' on line 20, is concerned, that it does not appear on
the face of this proviso that it necessarily is a saving, and
therefore does not come within the Holman rule and appears to be
legislation on an appropriation bill. The Chair, therefore,
sustains the point of order as to the proviso.
---------------------------------------------------------------------------
4. Lister Hill (Ala.).
---------------------------------------------------------------------------
Language Must Show Unqualified and Certain Reduction
Sec. 5.5 Legislation proposed on an appropriation bill must
[[Page 5341]]
indicate by its terms an unqualified reduction of expenditures, if
it is to be in order under the Holman rule; accordingly, a
paragraph in an appropriation bill proposing the continuance of a
temporary law which eliminated bonus payments for re-enlistment in
the Army, Navy, and Marine Corps, was held not to be in order under
the Holman rule on the ground that the language did not
specifically and definitely show a retrenchment of expenditures.
On Feb. 18, 1937,(5) during consideration in the
Committee of the Whole of the Treasury and Post Office Departments
appropriations bill (H.R. 4720), the Chairman made the following
ruling:
---------------------------------------------------------------------------
5. 81 Cong. Rec. 1388, 75th Cong. 1st Sess.
---------------------------------------------------------------------------
The Chairman: (6) The Chair is ready to rule on the
point of order.
---------------------------------------------------------------------------
6. Arthur H. Greenwood (Ind.).
---------------------------------------------------------------------------
. . . (A) point of order is made against this proviso appearing
on page 27, at line 10:
Provided further, That section 18 of the Treasury-Post
Office Appropriation Act, fiscal year 1934, is hereby continued
in full force and effect during the fiscal year ending June 30,
1938, and for the purpose of making such section applicable to
such latter fiscal year the figures ``1934'' shall be read as
``1938.''
This section clearly continues a provision of the so-called
Economy Act of the Seventy-third Congress enacted in 1933, which
eliminated bonus payments for reenlistment in certain departments
of the Government. This provision expired by operation of law. This
section provides for its reenactment or its continuance, and is,
therefore, legislation. The suggestion has been made that the point
of order should be overruled because there is a retrenchment under
the Holman rule.
The Chair reads from Cannon's Precedents, volume 7, section
1538:
Unless an amendment proposes legislation which will
retrench an expenditure with definite certainty, it is not in
order under the Holman rule.
And, again, section 1542 of the same volume, which is a little
more clearly applicable to this particular point of order:
In construing the Holman rule the Chair may not speculate
or surmise as to whether a particular provision might or might
not operate to retrench an expenditure. Legislation proposed on
an appropriation bill must indicate by its terms an unqualified
reduction of expenditure to fall within the exception of the
rule.
The Chair is of the opinion that the showing made is not
definite enough to be an unqualified reduction of expenditure,
because it is entirely speculative as to whether there would be
reenlistments. The Chair, therefore, does not believe the proviso
comes within the provisions of the Holman rule. It is clearly
legislation on an appropriation bill, and the Chair sustains the
point of order.
Parliamentarian's Note: Where a provision attempts reductions,
[[Page 5342]]
qualifying words in the provision may operate to make the reductions
uncertain. See, for example, Sec. 52.6, infra, in which an amendment
made specified reductions in a defense appropriation bill, but added
the qualification that the reductions were to be made ``without
impairing national defense.'' Such a qualification makes the Holman
rule inapplicable.
Reduction Based on Budget Estimates; Speculative and Uncertain
Sec. 5.6 An amendment to an appropriation bill providing for percentage
reductions in accounts carried in the bill, to be computed by
applying percentages to the corresponding estimates in the
President's budget was held to be legislation and not in order
under the Holman rule inasmuch as no reduction was shown on its
face and any reduction thereunder would be speculative.
On May 17, 1951,(7) during consideration in the
Committee of the Whole of the Agriculture Department appropriation bill
(H.R. 3973), a point of order was raised and sustained against the
following amendment:
---------------------------------------------------------------------------
7. 97 Cong. Rec. 5477, 5478, 82d Cong. 1st Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
Amendment offered by Mr. [Thomas B.] Curtis of Missouri: On
page 58, line 5, add a new section as follows:
``Sec. 410 (a) Except as hereinafter provided, reductions
in each appropriation . . . contained in this act are hereby
made in the total amount resulting from the application of the
percentages indicated herein to the amounts of obligations for
the fiscal year 1952, if any, included in the President's
budget estimates on which each such appropriation . . . is
based, for the following objects:
``Travel, 20 percent.
``Transportation of things, 10 percent. . . .''
Mr. [Jamie L.] Whitten [of Mississippi]: Mr. Chairman, I make
the point of order against the amendment that it is legislation on
an appropriation bill. It requires the exercise of additional
duties not required by any other law. Further, it is not protected
by the Holman rule because any retrenchment of expenditures by the
amendment is purely speculative, for any cuts are to be made on the
basis of the figures in the President's budget. You cannot look at
the bill and at the amendment and tell whether the amendment would
reduce expenditures. . . . I respectfully submit that while there
may be retrenchment under the Holman rule, it has to be entirely
apparent on the face of the amendment, rather than speculative.
Therefore, the amendment is not saved by that rule. . . .
Mr. [John] Taber [of New York]: The reductions are absolutely
specific
[[Page 5343]]
in every instance, and the amount to which the reduction would
apply is absolutely specific. Therefore, it is not speculative in
the slightest degree. . . .
The Chairman: (8) The Chair is prepared to rule. . .
.
---------------------------------------------------------------------------
8. Aime J. Forand (R.I.).
---------------------------------------------------------------------------
After very serious study on this amendment, the Chair is of the
opinion that this is legislation on an appropriation bill, and the
question then arises as to whether it is protected by the Holman
rule. That rule requires the legislation to make a retrenchment of
expenditures beyond doubt. Since this amendment operates against
the budget estimates rather than the amounts in the bill, the
question of retrenchment is speculative.
Therefore, the Chair holds that the amendment offered by the
gentleman from Missouri (Mr. Curtis) is legislation upon an
appropriation bill and the Chair sustains the point of order.
Conjectural or Speculative Reduction Not Sufficient
Sec. 5.7 Language in a general appropriation bill restricting the
powers of the selection boards for the Navy was held to be
legislation and not in order under the Holman rule.
On Aug. 17, 1937,(9) during consideration in the
Committee of the Whole of the third deficiency appropriation bill (H.R.
8245), a point of order was raised against the following amendment, and
proceedings ensued as indicated below:
---------------------------------------------------------------------------
9. 81 Cong. Rec. 9172, 9173, 75th Cong. 1st Sess.
---------------------------------------------------------------------------
Mr. [William H.] Sutphin [of New Jersey]: Mr. Chairman, I offer
an amendment.
The Clerk read as follows:
Amendment offered by Mr. Sutphin: Page 22, after line 10,
insert a new paragraph, as follows:
``That the powers and duties conferred by law or regulation
upon selection boards for the Navy now established or which may
be established during the remainder of the fiscal year ending
June 30, 1938, shall not be exercised after the date of the
enactment of this act and prior to July 1, 1938, and no
recommendation or action of any such board shall be effective
during the remainder of the fiscal year ending June 30, 1938.''
Mr. [Clifton A.] Woodrum [of Virginia]: Mr. Chairman, I make
the point of order against the amendment that it is legislation on
an appropriation bill and changes existing law. . . .
Mr. Sutphin: Mr. Chairman, I admit the amendment is
legislation, but respectfully submit that it is in order under
clause 2 of rule XXI, the so-called Holman rule.
That rule requires that a legislative proposition in the first
place must be germane to the subject matter of the bill, and, if
germane, that it shall retrench expenditures by the reduction of
the number and salary of the officers of the United States, by the
reduction of the compensation of any person paid out of the
Treasury of the United States, or by the reduction of amounts of
money covered by the bill.
[[Page 5344]]
The first requisite is that the legislation must be germane to
the subject matter of the bill. This is a bill, according to its
title, making appropriations to supply deficiencies in certain
appropriations for the fiscal year ending June 30, 1937, and for
prior fiscal years, to provide urgent supplemental appropriations
for the fiscal year ending June 30, 1938, and for other purposes.
The truth of the matter is, the bill is very largely a bill making
supplemental or additional appropriations for the fiscal year
1938--the current fiscal year.
Among other subdivisions is one pertaining to the Navy
Department. Whether there be a Navy Department subdivision or not,
however, or whether there be any provision under the Navy
Department section dealing with personnel or not, I submit that the
bill adds to appropriations already made by Congress for the fiscal
year 1938 for various governmental agencies, and provides, besides,
additional appropriations for such fiscal year, and that is an
amendment would be in order adding to an appropriation already made
for a purpose authorized by law (the question of germaneness would
not lie against such an amendment), it would be just as logical to
hold in order an amendment the effect of which would be to reduce
an appropriation already made, to wit, the appropriation ``Pay of
the Navy, 1938.'' The Chair is acquainted with the ruling holding
in order on an appropriation bill a provision repealing an
appropriation already made. The amendment proposed in effect
repeals in part an appropriation already made.
Now, as to the expenditure-retrenchment phase, I should like to
point out, so as to remove any doubt, how the amendment would bring
about a ``reduction of the compensation of any person paid out of
the Treasury of the United States.''
Section 2 of the act of July 22, 1935 (49 Stat. 487), provides
that except in time of war there shall not be in the line of the
Navy on the active list, exclusive of officers carried as
additional numbers, more than 58 rear admirals, 240 captains, and
515 commanders. Therefore it is self-evident that in order for a
commander to be advanced to the grade of captain there must be a
fewer number than 240 captains; and likewise, in order for a
captain to be advanced, there must be a fewer number than 58 rear
admirals.
Advancement of officers of the Navy above the grade of ensign
is contingent upon selection for promotion by a board of naval
officers. There are a number of laws on the subject, but it should
suffice here merely to cite section 291 of title 34 of the United
States Code.
On page 859 of the hearings on the naval appropriation bill for
the fiscal year 1938, a table appears--inserted by the Chief of the
Bureau of Navigation, the Personnel Bureau of the Navy Department--
giving by fiscal years actual and estimated retirements of officers
owing to nonselection for promotion over the period 1934 to 1944,
both inclusive. As to that portion which is an estimate, I might
say that the appropriation for pay of the Navy for the fiscal year
1938 or any fiscal year is based upon estimates of the personnel
situation prepared by the Bureau responsible for the table to which
I have invited the Chair's attention.
[[Page 5345]]
According to that table, 16 captains will be retired during the
fiscal year 1938 owing to nonselection. The table shows other
retirements, but I shall not go further in the interest of brevity
and clarity. The enforced elimination of those 16 captains will
admit of the advancement of 16 selected-for-promotion commanders,
which, in turn, would admit of the advancement of a like number of
selected lieutenant commanders.
Those advancements, besides bestowing additional rank, will
occasion added expense. Under the Joint Services Pay Act of 1922
(sec. 1, title 37, U.S.C.), the lieutenant commanders of normal
service tenure would move into a higher pay period and would become
entitled to a higher rental allowance, while the advanced
commanders of normal service tenure also would move into a higher
pay period, but would receive a lesser subsistence allowance,
considerably more than offset, however, by the increase of pay.
I might go further and say that increased rank necessitates a
change of station, which entails travel expense from the old to the
new station, including the expense of moving dependents, where
there are dependents. That is not conjectural in any sense. The
amount of the expense necessarily would be, however, because we
have no way of knowing either the present or new duty stations.
So, Mr. Chairman, as to the retrenchment phase, there can be no
manner of doubt that the amendment will effect a substantial
saving. I only have cited advancements from two grades in the
interest of brevity and clarity. The rule does not deal with the
degree of saving.
Mr. Woodrum: Mr. Chairman, the amendment on its face does not
show any saving or retrenchment and it is purely speculative
whether or not there would be any saving. As a matter of actual
experience we know that if put into operation there would not be a
saving, and the amendment in order to be in order must show
positively that there is to be a saving to the United States
Treasury. . . .
The Chairman: (10) the Chair is prepared to rule.
This amendment takes away the powers of the board now appointed for
promotion in the Navy. Therefore, clearly it is legislation on an
appropriation bill. Furthermore, it is not shown on the face of the
amendment that there is any retrenchment of expenditures, and in
order to come within the province of the Holman rule, such
retrenchment must be certain and not conjectural or speculative.
The gentleman from New Jersey (Mr. Sutphin) in arguing his point of
order has emphasized that speculative feature of his amendment, if
it should be adopted. The Chair, therefore, sustains the point of
order.
---------------------------------------------------------------------------
10. Claude V. Parsons (Ill.).
---------------------------------------------------------------------------
Specifying Construction Materials; Not Definite Reduction
Sec. 5.8 During consideration of an appropriation for continuing the
construction of annex buildings for the Government Printing Office,
a provision that the exterior construction material for one annex
building should be as
[[Page 5346]]
contemplated in the original cost estimates for the project was
held to be legislation, and not in order under the Holman rule.
On Jan. 17, 1938,(11) the Committee of the Whole was
considering H.R. 8947, a Treasury and Post Office Departments
appropriation bill. At one point the Clerk read as follows, and
proceedings ensued as indicated below:
---------------------------------------------------------------------------
11. 83 Cong. Rec. 652, 75th Cong. 3d Sess.
---------------------------------------------------------------------------
Government Printing Office, annex buildings, Washington, D.C.:
For continuation of construction of annex buildings for the
Government Printing Office, $2,500,000; and the limit of cost for
this project is hereby increased from $5,885,000, as authorized in
the Second Deficiency Appropriation Act, fiscal year 1935, approved
August 12, 1935, to $7,000,000: Provided, That the character of the
exterior construction material for annex building No. 3 shall be
that contemplated in the original cost estimates for such project.
Mr. [Eugene B.] Crowe [of Indiana]: Mr. Chairman, I make a
point of order against the proviso on page 47, beginning with the
word 'Provided', in line 14, and extending to the end of line 17,
that it clearly is legislation on an appropriation bill under the
provisions of clause 2 of rule XXI. . . .
Mr. [Emmet] O'Neal of Kentucky: Mr. Chairman, this proviso
merely seeks to reduce the expenditure and is in reality,
therefore, a limitation on an appropriation bill and falls within
the rule.
Mr. Crowe: Mr. Chairman, if the gentleman will permit an
interruption, there is nothing about the language, as I see it,
that limits or reduces expenditures.
Mr. O'Neal of Kentucky. It is a limitation.
The Chairman: (12) the Chair is ready to rule. . . .
---------------------------------------------------------------------------
12. Arthur H. Greenwood, (Ind.).
---------------------------------------------------------------------------
. . . [T]his proviso is legislation and to be in order it would
be necessary to show that it would effect an economy or a
retrenchment. This not being shown, the Chair is therefore of the
opinion that the proviso is subject to the point of order.
The Chair sustains the point of order.
Reappropriation of Old Funds Not Necessarily Retrenchment; Retrenchment
Language Must Be Germane
Sec. 5.9 The payment from a fund already appropriated of a sum which
would otherwise be charged against the Treasury is not a
retrenchment of expenditures falling within the Holman rule
exception to Rule XXI clause 2.
On Oct. 18, 1966,(13) during consideration in the
Committee of the Whole of a supplemental appropriation bill (H.R.
18381), a point
[[Page 5347]]
of order was raised and later sustained against the following
amendment:
---------------------------------------------------------------------------
13. 112 Cong. Rec. 27425, 89th Cong. 2d Sess.
---------------------------------------------------------------------------
Mr. [Frank T.] Bow [of Ohio]: Mr. Chairman, I offer an
amendment.
The Clerk read as follows:
Amendment offered by Mr. Bow: On page 16 after line 3 add a
new section as follows:
``Sec. 803. Notwithstanding any other provision,
appropriations herein, as the President shall determine, shall,
not later than 120 days after the date of enactment of this
Act, be reduced in the aggregate by not less than
$1,500,000,000 through substitution by reduction and transfer
of funds previously appropriated for governmental activities
that the President, within the aforementioned 120 days, shall
have determined to be excess to the necessities of the services
and objects for which appropriated.''
Mr. [George H.] Mahon [of Texas]: Mr. Chairman, I make a point
of order against this amendment.
The Chairman: (14) The gentleman will state his
point of order.
---------------------------------------------------------------------------
14. James G. O'Hara (Mich.).
---------------------------------------------------------------------------
Mr. Mahon: The point of order is that the amendment goes far
beyond the scope of this bill and applies to funds made available
by other laws for which appropriations are not provided in the
pending measure. . . .
The Chairman: Does the gentleman from Ohio wish to be heard on
the point of order?
Mr. Bow: Yes, I do wish to be heard, Mr. Chairman. . . .
I believe we have changed the Holman rule today by making it
relate to this bill. The previous precedents of the House have been
it must not necessarily apply to this particular bill when there is
a retrenchment, so we are making new precedents today.
This is a general appropriation bill affecting various
agencies. Since the amendment also deals with and affects various
appropriations of various agencies, it is germane.
Again, there can be no speculation as to its retrenching
Federal expenditures because it reduces appropriations in this
bill--in this bill by $1.5 billion and requires the President to
fund activities in this bill from previously appropriated funds
that are excess to the necessities of the services and objects for
which appropriated.
I point out again that the Holman rule does not go along with
the decision suggested by the distinguished chairman of the
committee that additional duties are involved.
Under the Holman rule it is a question of retrenchment of
expenditures.
The legislation in this amendment is not unrelated to the
retrenchment of expenditures. Instead, it is directly instrumental
in accomplishing the reduction of expenditures. Thus, the proposed
retrenchment and the legislation are inseparable and must be
considered together.
``Cannon's Precedents,'' in volume VII, 1550 and 1551, holds
that an amendment may include such legislation as is directly
instrumental in accomplishing the reduction of expenditures
proposed. That is the precise situation with respect to this
pending amendment.
Again I cite ``Cannon's Precedents,'' volume VII, 1511, which
holds that language admitted under the Holman
[[Page 5348]]
rule is not restricted in its application to the pending bill, and
to the June 1, 1892, decision, to which I referred before, of the
Committee of the Whole and its Chairman, that an amendment was in
order under the Holman rule even though it changed existing law.
[Note: See comment concerning the 1892 decision in the introduction
to Sec. 4, supra.]
I say, Mr. Chairman, I believe if this is held to be out of
order we will be changing the precedents and the rules of the
House, and we will be destroying the Holman rule.
I urge the Chair to overrule the point of order.
The Chairman: The Chair is prepared to rule.
The amendment offered by the gentleman from Ohio specifies that
appropriations herein, as the President shall determine, shall be
reduced in the aggregate by not less than $1.5 billion. This
reduction would be achieved by authorizing and directing the
President to utilize previously appropriated funds for the
activities carried in this bill.
The Chair feels that the amendment is clearly legislation. It
places additional determinations and duties on the President and
involves funds other than those carried in this bill.
Therefore, if the amendment were to be permitted it would have
to qualify, as the gentleman has attempted to qualify it, under the
Holman exception, under the Holman rule, rule XXI, clause 2.
In the opinion of the Chair, the Holman exception is
inapplicable in this instance for three reasons.
First, the payment from a fund already appropriated of a sum
which otherwise would be charged against the Treasury has been held
not to be a retrenchment of expenditures under the Holman rule.
Chairman Hicks, of New York, ruled to the same effect when a
proposition involving the Holman rule was before the House on
January 26, 1921.
Second, it seems to the Chair that the language proposed by the
gentleman from Ohio [Mr. Bow] authorizes the reappropriation of
unexpended balances, a practice prohibited by clause 5 of rule XXI.
Third, the amendment goes to funds other than those carried in
this bill and is not germane.
With respect to the latter point and the citation that has been
given by the gentleman from Ohio, which is found in the precedents
of the House, volume VII, 1511, the Chair will note that the
proposition reduced the number of Army officers and provided the
method by which the reduction should be accomplished. It was an
amendment, as it appears in the citation, to a War Department
appropriation bill and was therefore germane in spite of whatever
the general proposition in the heading may have stated.
For the reasons given, the Chair will sustain the point of
order made by the gentleman from Texas.
Reimbursement to Treasury From Receipts
Sec. 5.10 Language in a general appropriation bill providing that all
moneys hereafter received by the United States in connection with
any irri
[[Page 5349]]
gation project constructed by the federal government shall be
covered into the general fund until such fund has been reimbursed
for allocations to the project, was held to be legislation on an
appropriation bill and not to come within the provisions of the
Holman rule.
On Nov. 29, 1945,(15) during consideration in the
Committee of the Whole of the first deficiency appropriation bill (H.R.
4805), a point of order was raised against the following provision:
---------------------------------------------------------------------------
15. 91 Cong. Rec. 11192, 11193, 79th Cong. 1st Sess.
---------------------------------------------------------------------------
Total, general fund, construction, $42,765,000: Provided, That
all moneys hereafter received by the United States in connection
with any irrigation project . . . shall be covered into the general
fund until the general fund has been reimbursed in full for
allocations and appropriations made to such project from the
general fund. . . .
Mr. [J. W.] Robinson [of Utah]: Mr. Chairman, I make the point
of order against the proviso commencing on page 30, line 15, and
continuing on page 31 down to the end of line 6 that it is
legislation on an appropriation bill.
Mr. [Clarence] Cannon [of Missouri]: Mr. Chairman, the
committee concedes the point of order. . . .
Mr. [John] Taber [of New York]: Mr. Chairman, I desire to be
heard on the point of order. It is manifest that this item requires
that funds received shall be covered into the general fund of the
Treasury until the general fund has been fully reimbursed for the
amount that it has expended. In my opinion that is an order under
the Holman rule. It saves money to the Treasury on the face of the
document.
The Chairman: (16) The Chair thinks it is clearly
legislation on an appropriation bill, and so holds. The point of
order is sustained.
---------------------------------------------------------------------------
16. R. Ewing Thomason (Tex.).
---------------------------------------------------------------------------
Costs Shifted From Government to Private Party
Sec. 5.11 Language in the District of Columbia appropriation bill
providing that in regard to the building of an underpass at Dupont
Circle, the cost of changing or removing street-railway tracks by
the street-railway company shall be borne by such company and
providing further that the company shall install other equipment at
its own expense, was held not to come within the provisions of the
Holman rule.
On Feb. 1, 1938,(17) during consideration in the
Committee of the Whole of the District of Columbia appropriation bill
(H.R. 9181), a point of order was raised against the following
provision, and pro
[[Page 5350]]
ceedings ensued as indicated below:
---------------------------------------------------------------------------
17. 83 Cong. Rec. 1379, 1380, 75th Cong. 3d Sess.
---------------------------------------------------------------------------
For the construction of an underpass at Dupont Circle . . .
$480,000: Provided, That the cost of the necessary changes,
removal, construction, and reconstruction of the street-railway
tracks and appurtenances, to be performed by the street-railway
company, including paving within the streetcar track area, shall be
borne by the street-railway company owning or operating over the
existing tracks: Provided further, That the funds herein
appropriated shall be available for construction, at time of
roadway paving, of suitable streetcar-loading platforms, and the
street-railway company shall, at its own expense, furnish and
install approved lighting equipment, signs, and so forth, in
accordance with plans to be approved by the Public Utilities
Commission and shall, at its own expense, operate and maintain such
equipment.
Mr. [Vincent L.] Palmisano [of Maryland]: Mr. Chairman, I make
the point of order to the proviso on page 76, line 7, down to and
including the word ``equipment'' in line 20. It is legislation on
an appropriation bill.
The Chairman: (18) Does the gentleman from
Mississippi desire to be heard on the point of order?
---------------------------------------------------------------------------
18. William J. Driver (Ark.).
---------------------------------------------------------------------------
Mr. [Ross A.] Collins [of Mississippi]: Mr. Chairman, I hope
the gentleman will reserve the point of order so that I can ask him
a question.
Mr. Palmisano: I reserve the point of order.
Mr. Collins: Mr. Chairman, the provision to which the gentleman
makes the point of order imposes upon the street-railway company a
part of the expense of carrying on this work, and with the
elimination of the language that the gentleman seeks to eliminate
it means that the cost of the whole work will be imposed upon the
District of Columbia. I am certain that the gentleman does not want
to do that, because the streetcar company will be benefited by this
underpass. . . .
The Chairman: The Chair has examined carefully the language of
the bill to which the point of order is directed. The Holman rule
could not possibly apply in this case because the language does not
retrench expenditures in one of the methods set forth in the rule,
but is legislative in character and, therefore, prohibited in an
appropriation bill.
The Chair sustains the point of order.
Authority to Terminate Employment
Sec. 5.12 Language in a general appropriation bill providing that the
Secretary of State may, in his discretion, terminate the employment
of any employee of the Department of State or of the Foreign
Service whenever he shall deem such termination necessary or
advisable in the interests of the United States, was held to be
legislation on an appropriation bill and not to be within the
provisions of the Holman rule.
[[Page 5351]]
On Apr. 20, 1950,(19) during consideration in the
Committee of the Whole of a general appropriation bill (H.R. 7786), a
point of order was raised against the following provision:
---------------------------------------------------------------------------
19. 96 Cong. Rec. 5480, 5481, 81st Cong. 2d Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
Sec. 104. Notwithstanding the provisions of section 6 of
the act of August 24, 1912 (37 Stat. 555), or the provisions of
any other law, the Secretary of State may, in his absolute
discretion, during the current fiscal year, terminate the
employment of any officer or employee of the Department of
State or of the Foreign Service of the United States whenever
he shall deem such termination necessary or advisable in the
interests of the United States. . . .
Mr. [Vito] Marcantonio [of New York]: Mr. Chairman, a point of
order. The language of section 104 gives to the Secretary of
State--and I quote from the section--``in his absolute discretion''
power to terminate the employment of any employee. I do not believe
we have ever had legislation in the entire history of this Nation
which contained this language ``absolute discretion.'' . . .
Mr. [John] Taber [of New York]: Mr. Chairman, in my opinion
this will result in a saving. It is in accordance with the
provisions of the Holman rule. When the power authorized in this
language is exercised and the Secretary terminates the employment
of any officer or employee in his absolute discretion that will
result in a saving. That will save money and is in order.
The Chairman: (20) . . . The gentleman from New York
[Mr. Marcantonio] has made a point of order against the language
appearing in section 104 on page 46 of the bill on the ground that
it is legislation on an appropriation bill. The Chair has examined
the language. The Chair invites attention to the fact that the
language does confer definite authority and requires certain acts
on the part of the Secretary of State. In response to the argument
offered by the gentleman from New York [Mr. Taber] as to the
application of the Holman rule it is clearly shown by the
precedents and decisions of the House that the saving must be
apparent and definite on its face in the language of the bill in
order for the Holman rule to apply. Certainly an examination of the
language in question clearly shows that any saving would be
speculative. In view of the long line of precedents and decisions
dealing with the question of legislation on an appropriation bill,
which is clearly prohibited under the rules of the House, the Chair
has no alternative other than to sustain the point of order.
---------------------------------------------------------------------------
20. Jere Cooper (Tenn.).
---------------------------------------------------------------------------
Reduction in Existing Contract Authorization
Sec. 5.13 Language in an appropriation bill seeking to change a
contract authorization contained in a previous appropriation bill
passed by another Congress was held to be legislation and not a
retrenchment of funds in the bill.
On Apr. 25, 1947,(1) during consideration in the
Committee of the
[[Page 5352]]
Whole of the Department of the Interior appropriation bill for fiscal
year 1948 (H.R. 3123), the following point of order was raised:
---------------------------------------------------------------------------
1. 93 Cong. Rec. 4098, 80th Cong. 1st Sess.
---------------------------------------------------------------------------
Mr. [Francis H.] Case of South Dakota: Mr. Chairman, I wish to
reserve the point of order first in order that I may get some
information before I make the point of order finally, and that is
with respect to the language which appears at the bottom of page
51, which reads as follows:
Provided further, That the contract authorization of
$15,000,000 contained in the Interior Department Appropriation
Act, fiscal year 1946, is hereby reduced to $9,750,000.
My point of order, Mr. Chairman, is that that is legislation
amending a previous act and not within the purview of this bill
making appropriations for fiscal 1948. It constitutes legislation
on an appropriation bill for it destroys existing legislation.
Before I make the point of order, may I ask the chairman of the
committee what the reason is for carrying that language? I feel
that the development of the synthetic liquid fuel program is very
essential to national defense and is probably the cheapest money we
can spend in that direction.
Mr. [Robert F.] Jones of Ohio: The purpose of this language is
to limit the amount to be expended further on this project to the
authorization provided in the basic act. In other words, the amount
remaining after this appropriation will be the amount of
$9,750,000, and will tie the entire appropriation to the basic
authorization.
Mr. Case of South Dakota: What was the reason, then, for the
increase of the authorization to $15,000,000 in the act of 1946 and
establishment of contract authority?
Mr. Jones of Ohio: That was to tie the appropriations to the
$30,000,000 authorization.
Mr. Case of South Dakota: Mr. Chairman, having introduced a
bill which seeks to accomplish about that very thing, I am
constrained to make the point of order and do make the point of
order.
The Chairman: (2) Does the gentleman from Ohio
desire to be heard on the point of order?
---------------------------------------------------------------------------
2. Earl C. Michener (Mich.).
---------------------------------------------------------------------------
Mr. Jones of Ohio: Mr. Chairman, the only purpose of the
language is to limit the amount appropriated over all to the
$30,000,000 authorization. It seems to me it is merely a
restatement of the basic law and clearly in order under the Holman
rule because on its face it saves money.
The Chairman: This language changes a contract authorization
contained in a previous appropriation bill passed by another
Congress. The Chair sustains the point of order.
Use of Total Appropriation; Language Precluding Future Supplemental
Funding
Sec. 5.14 A provision in the District of Columbia appropriation bill
providing that the appropriation for public assistance shall be so
administered as to constitute the total amount that will be
utilized during such fiscal year
[[Page 5353]]
for such purposes was held to place additional duties upon the
commissioners and therefore legislation on an appropriation bill
and not in order.
On Feb. 1, 1938,(3) the Committee of the Whole was
considering H.R. 9181, a District of Columbia appropriation bill. The
following proceedings took place:
---------------------------------------------------------------------------
3. 83 Cong. Rec. 1364, 75th Cong. 3d Sess.
---------------------------------------------------------------------------
Public Assistance
For the purpose of affording relief to residents of the
District of Columbia who are unemployed or otherwise in distress
because of the existing emergency, to be expended by the Board of
Public Welfare of the District of Columbia by employment and direct
relief, in the discretion of the Board of Commissioners and under
rules and regulations to be prescribed by the board and without
regard to the provisions of any other law, payable from the
revenues of the District of Columbia, $900,000, and not to exceed 7
1/2 percent of this appropriation and of Federal grants reimbursed
under this appropriation shall be expended for personal services:
Provided, That all auditing, disbursing, and accounting for funds
administered through the Public Assistance Division of the Board of
Public Welfare, including all employees engaged in such work and
records relating thereto, shall be under the supervision and
control of the Auditor of the District of Columbia: Provided
further, That this appropriation shall be so apportioned and
distributed by the Commissioners over the fiscal year ending June
30, 1939, and shall be so administered, during such fiscal year, as
to constitute the total amount that will be utilized during such
fiscal year for such purposes: Provided further, That not more than
$75 per month shall be paid therefrom to any one family.
Mr. [Gerald R.] Boileau [of Wisconsin]: Mr. Chairman, I make a
point of order against the proviso appearing on page 58, line 2,
after the word ``Columbia' and ending on line 7 with the word
``purposes.''
I make the point of order that this proviso is legislation on
an appropriation bill. . . .
Mr. [Ross A.] Collins [of Mississippi]: Mr. Chairman, the
language about which the gentleman complains reads as follows:
Provided further, That this appropriation shall be so
apportioned and distributed by the Commissioners over the
fiscal year ending June 30, 1939, and shall be so administered
during such fiscal year as to constitute the total amount that
will be utilized during such fiscal year for such purposes.
Unquestionably that is a limitation upon an appropriation and
therefore comes within the rules of the House. The object is to
save money, and the provision shows on its face that it will save
money. . . .
The Chairman: (4) The Chair has examined the
language employed very carefully, and if I am correct in my
construction of that language, it seeks to impose an additional
burden upon
[[Page 5354]]
the Commissioners who are charged with the duty of administering
the fund sought to be appropriated. In addition to that, there is
nothing apparent in the language of the section that will result in
a saving. The inference that we have from the statement of the
chairman of the Subcommittee on Appropriations is not sufficient to
bring it within the rule that a saving will be effected.
---------------------------------------------------------------------------
4. William J. Driver (Ark.).
---------------------------------------------------------------------------
The Chair is therefore of the opinion that the point of order
is well taken and so rules.
Nongermane Amendment; Unrelated to Funding in Bill
Sec. 5.15 To a bill making appropriations to supply deficiencies, an
amendment proposing to change existing law by repealing that part
of a retirement act relating to the President, Vice President, and
Members of Congress, was held not germane and not in order under
the Holman rule.
On Feb. 9, 1942,(5) during consideration in the
Committee of the Whole of the Defense Department appropriation bill
(H.R. 6548), a point of order was raised against the following
amendment, and proceedings ensued as indicated below:
---------------------------------------------------------------------------
5. 88 Cong. Rec. 1157, 77th Cong. 2d Sess. For a discussion of the
germaneness rule generally, see Ch. 28, infra.
---------------------------------------------------------------------------
Amendment offered by Mr. [Donald H.] McLean [of New Jersey]:
Page 49, after line 2, add a new section, as follows:
``Sec. 303. Public Law No. 411, Seventy-seventh Congress,
chapter 16, second session, be, and is hereby, amended by adding at
the end thereof the following: `Provided, That nothing in this act
shall be construed to include within its provisions of the Civil
Service Retirement Act the President, Vice President, members of
the Senate, and the House of Representatives.' ''
And on page 49, line 3, strike out ``303'' and insert ``304.''
Mr. [Clarence] Cannon of Missouri: Mr. Chairman, I make the
point of order that the amendment is not germane to the bill, that
it is legislation on an appropriation bill, and is out of order. .
. .
Mr. McLean: I was laying the foundation for my argument.
If the Chair will refer to page 8 of this bill, he will there
find the section to which I have referred suspending a provision of
the Selective Service Act. That is clearly legislation on this
appropriation bill and comparable to my amendment. There are
exceptions to the rule that an appropriation bill cannot carry
legislation, and I call the Chair's attention to the Holman rule.
That rule provides that if the legislation would result in the
saving of expenditures it is not subject to a point of order. In
the Fifty-second Congress it was decided--
An amendment to the pension appropriation bill tending to
increase the class of persons prohibited from the benefit of
the pension laws is in order because its effect would be to
reduce expenditures.
The amendment which I have introduced would reduce
expenditures. It
[[Page 5355]]
excludes from the benefits of the Civil Service Retirement Act the
President, the Vice President, the Senators, and Members of the
House of Representatives.
This is the first opportunity we have had to correct our
blunder, and we ought to take advantage of it.
The Chairman: (6) The Chair is ready to rule.
---------------------------------------------------------------------------
6. Howard W. Smith (Va.).
---------------------------------------------------------------------------
The amendment offered by the gentleman from New Jersey is
clearly not germane to the bill under consideration. If it were
germane it would be legislation on an appropriation bill. It does
not in any way retrench expenditures under this bill. For two very
good reasons, therefore, the Chair sustains the point of order.
Denial of Status to Aliens Not Holman Retrenchment
Sec. 5.16 Language in an appropriation bill providing ``that no alien
employed on the Canal Zone may secure United States civil-service
status,'' was held to be legislation on an appropriation bill and
not within the exception of the Holman rule.
On July 2, 1947,(7) During consideration in the
Committee of the Whole of the War Department civil functions
appropriations, a point of order was raised against a provision, as
follows:
---------------------------------------------------------------------------
7. 93 Cong. Rec. 8171, 8172, 80th Cong. 1st Sess.
---------------------------------------------------------------------------
Mr. [Vito] Marcantonio [of New York]: Mr. Chairman, I make a
point of order against the language on page 17, line 18,
subdivision (7), ``that no alien employed on the Canal Zone may
secure United States civil-service status,'' is legislation on an
appropriation bill in that it clearly changes existing law.
The existing law, Mr. Chairman, is found in the treaty which
was signed between the Republic of Panama and the Government of the
United States. The treaty was ratified by the Senate of the United
States in 1939. . . .
In February of this year an Executive order was issued by the
President modifying the civil-service rules. One portion of that
Executive order distinctly permits Panamanians to take civil
service examinations and be enrolled in the United States Civil
Service. Consequently, this language against which I have raised a
point of order forbids Panamanian citizens from securing civil-
service status. Thus, it changes the law as set forth in the treaty
and changes the law as set out in the Executive order. It is
clearly legislation on an appropriation bill.
Mr. [Francis H.] Case of South Dakota: Mr. Chairman, if I may
be heard on the point of order, the first part of that section
reads as follows:
No part of any appropriation contained in this act shall be
used directly or indirectly, except for temporary employment in
case of emergency, for the payment of any civilian for services
rendered by him on the Canal Zone while occupying a skilled,
technical, clerical, administrative, executive, or supervisory
position unless such person is a citizen of the United States
of America or of the Republic of Panama: Provided, however--
Then going to subdivision (7)--
[[Page 5356]]
that no alien employed on the Canal Zone may secure United
States civil-service status.
Under the Holman rule, even legislation on an appropriation
bill is permitted if it succeeds in the reduction of an
expenditure. If aliens are to be given United States civil-service
status, it will increase the liability of the United States for the
payment of civil-service retirement and other provisions of that
sort. Consequently, it seems to me that in that sense the inclusion
of this language is a protection of the Treasury of the United
States and may be permissible under the Holman rule. Clause 7, of
course, is directly related to the ``provided, however,'' and the
language of limitation in the first part of the section.
Mr. [John E.] Rankin [of Mississippi]: Mr. Chairman, I would
like to call the Chairman's attention to the fact that an act of
Congress takes precedent over a treaty or even an Executive order
in the form of a treaty. So this language is clearly in order.
Congress has the right to enact this legislation.
The Chairman: (8) The Chair is ready to rule. So far
as the remark just made by the gentleman from Mississippi is
concerned, as the Chair remembers, it is in the last analysis an
act of Congress, whether it be a treaty or whether it be a law.
Therefore, that remark is not germane to the question now before
the Committee.
---------------------------------------------------------------------------
8. Earl C. Michener (Mich.).
---------------------------------------------------------------------------
As far as the statement of the gentleman from South Dakota [Mr.
Case] is concerned, regarding the Holman rule, at most, this
suggests that there might be a saving; there is the possibility of
a saving. The Holman rule is very clear that legislation must in
its language show an absolute saving. Therefore, that point would
not be of any value in sustaining the position which the gentleman
takes.
Section 7 provides that no alien employed on the Canal Zone may
secure United States civil-service status. So far as the Chair has
been advised, there is no law anywhere providing for that very
thing, excepting this legislation found in an appropriation bill.
The Chair therefore sustains the point of order.
Holman Exception Distinguished From Limitation
Sec. 5.17 The Holman rule is applicable only where language in a
general appropriation bill ``changes existing law'' and also has
the direct effect of retrenching the amount of funds in the bill;
it is not applicable where the language does not constitute
legislation but is merely a negative limitation citing, without
changing, the applicability of existing law.
On June 18, 1980,(9) 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
[[Page 5357]]
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. In the course of its ruling, the Chair stated that the Holman
rule was not applicable to the provision in question. The proceedings
are discussed in Sec. 52.36, infra.
---------------------------------------------------------------------------
9. 126 Cong. Rec. 15354-56, 96th Cong. 2d Sess.
---------------------------------------------------------------------------
Hypothetical ``Net'' Saving
Sec. 5.18 Where existing law directed a federal official to provide for
the sale of certain government property to private organizations in
``necessary'' amounts, but did not require that all such property
shall be distributed by sale, an amendment to a general
appropriation bill providing that no such property shall be
withheld from distribution from qualifying purchasers was ruled out
as legislation requiring disposal of all property and restricting
discretionary authority to determine ``necessary'' amounts and not
constituting (as required by the Holman rule) a certain
retrenchment of funds in the bill.
On Aug. 7, 1978,(10) during consideration in the
Committee of the Whole of the Department of Defense appropriation bill
(H.R. 13635), a point of order was sustained against the following
amendment:
---------------------------------------------------------------------------
10. 124 Cong. Rec. 24707, 24708, 95th Cong. 2d Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
Amendment offered by Mr. John T. Myers [of Indiana]: On
page 8, after line 10, add the following new section:
None of the funds appropriated or otherwise made available
in this Act shall be obligated or expended for salaries or
expenses during the current fiscal year in connection with the
demilitarization of any arms as advertised by the Department of
Defense, Defense Logistics Agency sale number 31-8118 issued
January 24, 1978, and listed as ``no longer needed by the
Federal Government'' and that such arms shall not be withheld
from distribution to purchasers who qualify for purchase of
said arms pursuant to title 10, United States Code, section
4308. . . .
Mr. [Abner J.] Mikva [of Illinois]: Mr. Chairman, I make a
point of order on the amendment on the ground that I believe that
it is legislation within a general appropriation bill and,
therefore, violates the rules of the House. . . .
Mr. John T. Myers: Mr. Chairman, this is a simple limitation
amendment. It merely limits the Secretary of the Treasury to
continue to carry out existing law. It does not provide any new
law. It simply says that the Secretary of the Treasury shall carry
out the prevailing, existing law. . . .
[[Page 5358]]
Mr. [John M.] Ashbrook [of Ohio]: Mr. Chairman, rule 21, clause
2, of the Rules of the House (House Rules and Manual pages 426-427)
specifies that an amendment to an appropriation bill is in order if
it meets certain tests, such as:
First. It must be germane;
Second. It must be negative in nature;
Third. It must show retrenchment on its face;
Fourth. It must impose no additional or affirmative duties or
amend existing law.
First. (The amendment) is germane. As the amendment applies to
the distribution of arms by the Defense Logistics Agency, it is not
exclusively an Army of civilian marksmanship amendment, so should
not be placed elsewhere in the bill. . . .
Second. It is negative in nature. It limits expenditure of
funds by the Defense Department by prohibiting the destruction and
scrapping of arms which qualify for sale through the civilian
marksmanship program, which is a division of the executive created
by statute.
Third. It shows retrenchment on its face. Retrenchment is
demonstrated in that the Department of Defense is prohibited from
expending funds to destroy surplus military arms, and that the arms
previously earmarked for destruction will be made available in
accordance with existing statute. . . . The House, in adding this
amendment, will secure additional funds for the Treasury which the
General Accounting Office has determined is adequate to pay costs
of handling the arms. For example, the M-1 rifles are to be sold at
a cost of $110 each. These are the arms most utilized by the
civilian marksmanship program. The Defense Department will not be
required to spend additional funds to process the sale of
additional arms. . . .
Fourth. [The amendment] does not impose additional or
affirmative duties or amend existing law. . . .
Regulations issued . . . AR 725-1 and AR 920-20 provide for the
issuance of arms by application and qualification through the
Director of Civilian Marksmanship. The DCM shall then submit sale
orders for the Armament Readiness Military Command (ARCOM) to fill
the requests of these qualified civilians. Thus, the amendment
simply requires the performance of duties already imposed by the
Army's own regulation. . . .
Mr. Mikva: Mr. Chairman, I particularly call attention of the
Chair to the second half of the amendment, which imposes an
affirmative duty on the Secretary, saying that such arms shall not
be withheld from distribution to purchasers who qualify for
purchase of said arms pursuant to title 10, United States Code,
section 4308.
Under the general existing law, there are all kinds of
discretions that are allowed to the Secretary to decide whether or
not such arms shall be distributed. Under this amendment, the
existing law is to be changed and those arms may not be withheld.
The practical purpose is to turn lose 400,000 to 500,000 rifles
into the body politic.
But the parliamentary effect is clearly to change the existing
law under which the Secretary can exercise all kinds of discretion
in deciding whether or not those arms will be distributed.
[[Page 5359]]
Under this amendment it not only limits the fact that the funds may
be obligated but it specifically goes on to affirmatively direct
the Secretary to distribute such arms under title X, which is an
affirmative obligation, which is exactly the kind of obligation the
rules prohibit, and I renew my point of order. . . .
The Chairman: (11) The Chair is ready to rule.
---------------------------------------------------------------------------
11. Daniel D. Rostenkowski (Ill.).
---------------------------------------------------------------------------
The Chair has read the section to which the gentleman refers,
title 10, United States Code, section 4308, and is of the opinion
that it does not require that all firearms be distributed to
qualified purchasers. The Chair further feels that while the first
part of the amendment is a limitation, the last part of the
amendment is a curtailment of Executive discretion, and the Chair
sustains the point of order.
CHAPTER 26
Unauthorized Appropriations; Legislation on Appropriation Bills
A. INTRODUCTORY MATTERS
Sec. 6. Amendments Between the Houses
A rule of the House (12) prohibits its conferees from
agreeing to certain Senate amendments to general appropriation bills
absent specific authority conferred by the House. The rule provides:
---------------------------------------------------------------------------
12. Rule XX clause 2, House Rules and Manual Sec. 829 (1973). For
further discussion of issues arising between the House and
Senate with respect to appropriation bills generally, and
appropriations on legislative bills, see Ch. 25 Sec. 13, supra.
See also Ch. 32, House-Senate Relations, infra; Ch. 33, House-
Senate Conferences, infra. And, see Ch. 13, Powers and
Prerogatives of the House, supra.
---------------------------------------------------------------------------
No amendment of the Senate to a general appropriation bill
which would be in violation of the provisions of clause 2 of rule
XXI, (13) if said amendment had originated in the House,
nor any amendment of the Senate providing for an appropriation upon
any bill other than a general appropriation bill, shall be agreed
to by the managers on the part of the House unless specific
authority to agree to such amendment shall be first given by the
House by a separate vote on every such amendment. (14)
---------------------------------------------------------------------------
13. See Sec. 1, supra, for discussion of Rule XXI clause 2.
14. Managers may be authorized to agree to an appropriation by a
resolution reported from the Committee on Rules. See 7 Cannon's
Precedents
Sec. 1577. -------------------
---------------------------------------------------------------------------
Amendments to Senate Amendment
Sec. 6.1 When the House was considering a Senate amendment to a general
appropriation bill proposing an expenditure not authorized by law,
it was held to be in order in the House to amend such Senate
amendment by germane amendments that were legislative in nature.
On Feb. 8, 1937, (15) the House was considering a Senate
amend
[[Page 5360]]
ment in disagreement on H.R. 3587, a deficiency appropriation bill. The
Clerk read as follows, and proceedings ensued as indicated below:
---------------------------------------------------------------------------
15. 81 Cong. Rec. 975, 976, 75th Cong. 1st Sess.
---------------------------------------------------------------------------
Senate amendment no. 9: Strike out, after the word
``appropriation'', the following language ``or of the appropriation
in the Emergency Relief Appropriation Act of 1936 shall be used
hereafter to pay the compensation of any person, not taken from
relief rolls, detailed or loaned for service in connection with any
investigation or inquiry undertaken by any committee of either
House . . .'' and insert ``or of any appropriation for any
executive department or independent executive agency shall be used
hereafter to pay the compensation of any person detailed or loaned
for service in connection with any investigation or inquiry
undertaken by any committee of either house of Congress . . .
unless the . . . agency . . . from whose staff such person is
detailed or loaned shall render to the Secretary of the Senate or
the Clerk of the House of Representatives . . . a statement on or
before the 10th day of each month of number, grade, or status . . .
of the persons so detailed or loaned from the staff of such . . .
agency . . . during the preceding calendar month.''
Mr. [Clifton A.] Woodrum [of Virginia]: Mr. Speaker, I move to
recede and concur in the Senate amendment with an amendment, hich I
send to the Clerk's desk.
The Clerk read as follows:
Mr. Woodrum moves that the House recede from its
disagreement to Senate amendment no. 9 and agree to the same
with an amendment, as follows: In lieu of the matter inserted
by said amendment insert the following: ``or of any
appropriation or other funds of any executive department or
independent executive agency shall be used after June 30, 1937,
to pay the compensation of any person detailed or loaned for
service in connection with any investigation or inquiry
undertaken by any committee of either house of Congress under
special resolution thereof.''
Mr. [Henry] Ellenbogen [of Pennsylvania]: Mr. Speaker, I offer
a preferential motion, which I send to the Clerk's desk.
The Clerk read as follows:
Mr. Ellenbogen moves that the House recede and concur in
Senate amendment no. 9. . . .
The Speaker Pro Tempore: (16) The gentleman from
Virginia demands a division of the question. The question is, Shall
the House recede from its disagreement to the Senate amendment?
---------------------------------------------------------------------------
16. John J. O'Connor (N.Y.).
---------------------------------------------------------------------------
The question was taken, and the motion to recede was agreed to.
Mr. Woodrum: Mr. Speaker, I move to concur in the Senate
amendment with an amendment, which I send to the Clerk's desk.
The Clerk read as follows:
Mr. Woodrum moves that the House concur in the Senate
amendment with an amendment as follows: In lieu of the matter
inserted by said amendment insert the following: ``or of any
appropriation or other funds of any executive department or
independent executive agency shall be used after June 30, 1937,
to pay the compensation of any person detailed or loaned for
service in connection
[[Page 5361]]
with any investigation or inquiry undertaken by any committee
of either House of Congress under special resolution thereof.''
Mr. Ellenbogen: Mr. Speaker, I make the point of order that the
motion of the gentleman from Virginia violates the rules of the
House in that it is legislation on an appropriation bill.
The Speaker Pro Tempore: The Chair will state that the Senate
amendment is legislation, and the amendment to that amendment
offered by the gentleman from Virginia is not out of order because
it contains legislation. The Chair therefore overrules the point of
order.
Instance of Consideration of Senate Amendments in Committee of the
Whole
Sec. 6.2 Where an appropriation bill was amended by the Senate and a
conference requested by the Senate, and the Senate amendments then
referred by the Speaker to the House Committee on Appropriations,
that committee reported out an alternative bill on the same
subject; upon the Senate's refusal to consider the second bill, the
House committee then reported back the Senate amendments to the
first bill, which were considered and amended in Committee of the
Whole and then sent to conference.
On June 1, 1945, the House Committee on Appropriations reported out
H.R. 3368, the National War Agencies appropriation, 1946.
(17)
---------------------------------------------------------------------------
17. 91 Cong. Rec. 5450, 79th Cong. 1st Sess.
---------------------------------------------------------------------------
On June 8, 1945, (18) the Committee on Rules reported a
resolution (H. Res. 289), subsequently adopted, waiving points of order
against legislative provisions in the bill. The House then resolved
itself into the Committee of the Whole (19) or consideration
of the bill. During such consideration, Mr. Vito Marcantonio, of New
York, offered an mendment to provide appropriations for continuance of
the Fair Employment Practice Committee, a measure with considerable
support in the House. A point of order having been raised against the
amendment, Chairman John J. Sparkman, of Alabama, sustained the point
of order, ruling that the amendment was out of order as legislation on
an appropriation bill. (1) The bill subsequently passed the
House. (2)
---------------------------------------------------------------------------
18. Id. at pp. 5795-99.
19. Id. at p. 5799.
1. Id. at p. 5831.
2. Id. at pp. 5832, 5833.
---------------------------------------------------------------------------
On June 20, 1945, H.R. 3368 was reported in the Senate.
(3) Fol
[[Page 5362]]
lowing the report, Senator Dennis Chavez, of New Mexico, submitted a
written notice, at the direction of the Senate Committee on
Appropriations, that it was his intention to move to suspend the rules
for the purpose of proposing an amendment to H.R. 3368 to insert
provisions for the appropriation for the Committee on Fair Employment
Practice. (4)
---------------------------------------------------------------------------
3. Id. at p. 6322
4. Id. at pp. 6322, 6323.
Parliamentarian's Note: The Senate rules sought to be
suspended were Rule XVI clauses 1 and 4, relating to amendments
to appropriation bills. Written notice of intention to move for
suspension of the rules under certain circumstances was
required by Senate Rule XL.
---------------------------------------------------------------------------
On June 30, 1945, the Senate considered and adopted the amendment
proposing such appropriation, and subsequently passed the bill and
requested a conference. (5)
---------------------------------------------------------------------------
5. 91 Cong. Rec. 7068, 79th Cong. 1st Sess.
---------------------------------------------------------------------------
On July 2, 1945, Speaker Sam Rayburn, of Texas, pursuant to his
discretionary authority under Rule XXIV clause 2, referred H.R. 3368
with Senate amendments to the Committee on Appropriations.
(6)
---------------------------------------------------------------------------
6. Id. at p. 7142.
Parliamentarian's Note: Before this reference was made, a
unanimous-consent request and an effort to obtain a resolution
from the Committee on Rules of the House making it in order to
take H.R. 3368 as amended from the Speaker's table, disagree
with the amendments, and agree to a conference both failed.
---------------------------------------------------------------------------
On July 3, 1945, the Committee on Appropriations reported out H.R.
3649,(7)) which was similar in effect to H.R. 3368 and
included some of the measures added by the Senate, but which did not
include the appropriation for the Committee on Fair Employment
Practice. Points of order were reserved by Members against the bill. An
effort was made to obtain a resolution from the Committee on Rules
waiving points of order against the legislative provisions contained in
H.R. 3649, but requests therefore were denied.
---------------------------------------------------------------------------
7. 91 Cong. Rec. 7189, 79th Cong. 1st Sess.
---------------------------------------------------------------------------
On July 5, 1945,(8) the House resolved itself into the
Committee of the Whole for consideration of H.R. 3649. General debate
had been waived. But numerous points of order were raised against
provisions of H.R. 3649 that appropriated for war
agencies.(9) the basis of these points of order, many
provisions of the bill were deleted before the bill was passed and sent
to the Senate. After it became apparent that the Senate
[[Page 5363]]
would not consider H.R. 3649, the Committee on Appropriations of the
House, on July 11, 1945, reported out H.R. 3368 with the Senate
amendments.(10)
---------------------------------------------------------------------------
8. Id. at pp. 7226.
9. Id. at pp. 7226-36.
10. Id. at p. 7404.
---------------------------------------------------------------------------
On July 12, 1945, the House resolved itself into the Committee of
the Whole; dispensed with general debate; considered Senate amendments
to H.R. 3368 under the five-minute rule and concurred with an amendment
to the Senate amendment containing the appropriation for the Fair
Employment Practice Committee; and, after disagreeing with other Senate
amendments, agreed to the conference requested by the
Senate.(11) Thereafter, the Senate agreed to the House
amendment to the Senate amendment relating to the Committee on Fair
Employment Practice, (12) and on July 13, 1945, the
conference report on H.R. 3368 was agreed to by both Houses.
(13)
---------------------------------------------------------------------------
11. Id. at pp. 7474-94.
12. Id. at p. 7464.
13. Id. at pp. 7510, 7534.
---------------------------------------------------------------------------
Unanimous Consent; House Conferees Authorized To Agree to Senate
Amendments Notwithstanding Rule XX Clause 2
Sec. 6.3 Form of a unanimous-consent request to send an appropriation
bill to conference and authorize the House conferees to agree to
Senate legislative amendments notwithstanding the restrictions
contained in Rule XX clause 2.
On June 3, 1936,(14) Member addressed Speaker Joseph W.
Byrns, of Tennessee, to make the following request:
---------------------------------------------------------------------------
14. 80 Cong. Rec. 8822, 74th Cong. 2d Sess.
---------------------------------------------------------------------------
Mr. [James P.] Buchanan [of Texas]: Mr. Speaker, I ask
unanimous consent to take from the Speaker's table the bill H.R.
12624, the first deficiency appropriation bill, together with the
Senate amendments thereto, disagree to the Senate amendments, and
agree to the conference requested by the Senate; also that the
managers on the part of the House, notwithstanding the provisions
of clause 2, rule XX, be authorized to agree to any Senate
amendment with or without amendment, except the Senate amendment
having to do with the Florida ship canal and the Senate amendment
providing $300,000,000 for public-works projects.
The Speaker: Is there objection to the request of the gentleman
from Texas? . . .
There was no objection.
The Chair appointed the following conferees: Mr. Buchanan, Mr.
Taylor of Colorado, Mr. Oliver, Mr. Woodrum, Mr. Boylan, Mr. Cannon
of Missouri, Mr. Taber, Mr. Bacon, and Mr. Thurston.
[[Page 5364]]
Sec. 6.4 Form of a unanimous-consent request to take from the Speaker's
table an appropriation bill with Senate amendments thereto;
disagree to the Senate amendments; agree to the conference asked by
the Senate; and to give the managers on the part of the House
authority to agree to the amendments of the Senate with amendments,
notwithstanding the provisions of Rule XX clause 2 and to consider
the conference report any time after filed.
On July 2, 1947,(15) Member addressed Speaker Joseph W.
Martin, Jr., of Massachusetts, to make the following request:
---------------------------------------------------------------------------
15. 93 Cong. Rec. 8131, 80th Cong. 1st Sess.
---------------------------------------------------------------------------
Mr. [John] Taber [of New York]: Mr. Speaker, I ask unanimous
consent to take from the Speaker's table the bill (H.R. 4031)
making appropriations to meet emergencies for the fiscal year
ending June 30, 1948, and for other purposes, with Senate
amendments thereto, disagree to the Senate amendments, and agree to
the conference asked by the Senate; and that the managers on the
part of the House have authority to agree to the amendments of the
Senate with amendments, notwithstanding the provisions of clause 2
of rule XX, and that the conference report may be considered at any
time.
The Speaker: Is there objection to the request of the gentleman
from New York? (After a pause.) The Chair hears none and appoints
the following conferees: Messrs. Taber, Wigglesworth, Engel of
Michigan, Stefan, Case of South Dakota, Keefe, Kerr, and Mahon.
Point of Order Against Senate Amendment Reported in Disagreement
Sec. 6.5 When an amendment is adopted by the Senate which, had it been
offered in the House, might have been subject to a point of order
as in violation of Rule XXI clause 2, and the conferees report such
amendment in disagreement, the House may consider the amendment.
On Oct. 6, 1949, (16) the following proceedings took
place:
---------------------------------------------------------------------------
16. 95 Cong. Rec. 14028, 14038, 14039, 81st Cong. 1st Sess.
---------------------------------------------------------------------------
Mr. [Michael J.] Kirwan [of Ohio]: Mr. Speaker, I call up the
conference report on the bill (H.R. 3838) making appropriations for
the Department of the Interior for the fiscal year ending June 30,
1950, and for other purposes, and ask unanimous consent that the
statement of the managers on the part of the House be read in lieu
of the report.
The Clerk read the title of the bill.
Mr. [Wesley A.] D'Ewart [of Montana]: Mr. Speaker, I wish to
make a point of order against a provision of this bill.
[[Page 5365]]
The Speaker: (17)) The gentleman can reserve the
right to make that point of order later.
---------------------------------------------------------------------------
17. Sam Rayburn (Tex.).
---------------------------------------------------------------------------
Is there objection to the request of the gentleman from Ohio?
There was no objection.
After adoption of the conference report, the House considered the
amendments reported in disagreement.
The Speaker: The Clerk will report the next amendment in
disagreement.
The Clerk read as follows:
Senate amendment No. 132: Page 56, line 7, insert the
following: ``: Provided further, That no part of this or prior
appropriations shall be used for construction, nor for further
commitments to construction of Moorhead Dam and Reservoir,
Mont., or any feature thereof until a definite plan report
thereon has been completed, reviewed by the States of Wyoming
and Montana, and approved by the Congress.''
Mr. D'Ewart: Mr. Speaker, a point of order.
The Speaker: The gentleman will state the point of order.
Mr. D'Ewart: Mr. Speaker, I make a point of order against the
provision. . . .
I make this point of order under rule 21, as it is clearly
legislation on an appropriation bill; (1) because it is an
affirmative direction and (2) it restricts executive discretion to
a degree that may be fairly termed a change in policy. I call the
Speaker's attention to page 422, section 844 of the House Rules and
Manual, which reads, in part, as follows:
A provision proposing to construe existing law is in itself
a proposition of legislation and therefore not in order.
On page 423 in the same section, I quote further:
A paragraph which proposes legislation being permitted to
remain may be perfected by a germane amendment, but this does
not permit an amendment which adds additional legislation. And
where a Senate amendment proposes legislation, the same
principle holds true.
I would call further the Speaker's attention to section 845,
which reads, in part, as follows: . . .
In construing a proposed limitation, if the Chair finds the
purpose to be legislative, in that the intent is to restrict
executive discretion to a degree that may be fairly termed a
change in policy rather than a matter of administrative detail,
he should sustain the point of order.
Mr. Speaker, I submit that the amendment to the appropriation
bill is an affirmative direction and restricts executive discretion
to a degree that may be fairly termed a change in policy. . . .
The Speaker: . . . The Chair will state that if an amendment of
this sort had been proposed in the House of Representatives when
this bill was under consideration in all probability it would have
been subject to a point of order. The Chair does not feel that in
this case it is a violation of clause 2 of rule 21, for the simple
reason that it has been held as early as 1921 by Mr. Speaker
Gillette that when an amendment that might have been subject to a
point of order in the House if offered here was adopted by the
Senate, and
[[Page 5366]]
the conferees reported such an amendment in disagreement the House
may consider the amendment.
Therefore, the Chair must overrule the point of order of the
gentleman from Montana.
Mr. Kirwan: Mr. Speaker, I move that the House recede and
concur in the Senate amendment.
Conferees' Authority Where Rule Waived Against House Provision
Sec. 6.6 Where an appropriation bill is considered in the House under a
rule waiving points of order against a provision therein which is
unauthorized by law, and the Senate then amends the unauthorized
provision, reducing the sum of money involved and striking out a
portion of the language, House conferees may (without violating the
provisions of Rule XX clause 2) agree to a sum between the two
versions and restore the House language.
On Dec. 20, 1969, (18) during consideration in the House
of the conference report on the foreign assistance appropriation bill
(H.R. 15149) the following point of order was raised, and proceedings
ensued as indicated below:
---------------------------------------------------------------------------
18. 115 Cong. Rec. 40445-48, 91st Cong. 1st Sess.
---------------------------------------------------------------------------
Mr. [Sidney R.] Yates [of Illinois]: Mr. Speaker, I make a
point of order against that portion of the conference report which
provides funds for the purchase of planes for the Republic of China
on the ground that it is an appropriation that is not authorized by
law.
I read from the conference report on the authorization bill
which appears in the Congressional Record of December 18 on page
39841 relating to the military assistance, section 504 of the act.
The House bill authorized a total of $454,500,000 for military
assistance of which $350,000,000 was for worldwide allocation;
$50,000,000 for Korea; $54,500,000 for the Republic of China.
The Senate amendment authorized a total of $325,000,000 without
any allocation to specified countries.
The managers on the part of the House agreed to the
authorization of $350,000,000 without specifying any country
allocation. They found it impossible to obtain agreement to a
larger total for military assistance and believe that any specific
additional allocation for Korea or for the Republic of China would
result in a drastic curtailment of the worldwide authorization
which would be detrimental to our national security.
So in the basic law, in the authorization law there is no
allocation specifically of funds for any country and I suggest that
the appropriation of funds in a specific amount for military
assistance to a particular country is without authorization of law.
. . .
The Speaker: (19) [T]he Chair recalls that when this
appropriation bill passed the House, it was considered under a rule
waiving points of order.
[[Page 5367]]
The House agreed to a total figure for military assistance of
$454,500,000. The Senate reduced this figure to $325 million. The
conferees have reached an agreement between these two amounts, as
they had the authority to do.
---------------------------------------------------------------------------
19. John W. McCormack (Mass.).
---------------------------------------------------------------------------
The Chair holds that the conferees have not exceeded their
authority and overrules the point of order.
Parliamentarian's Note: Such an amendment, had it been offered in
the House to merely change the unauthorized amount in the House bill
against which points of order had been waived, would have been
protected by the waiver and thus not subject to a point of order under
Rule XXI clause 2.
Senate Amendment, Within Conference Agreement, Held Authorized
Sec. 6.7 A point of order against a conference report, based on the
contention that managers on the part of the House had agreed to a
Senate amendment which provided for an appropriation not authorized
by law, was overruled.
On Sept. 27, 1961,(20) the following proceedings took
place:
---------------------------------------------------------------------------
20. 107 Cong. Rec. 21521, 21522, 87th Cong. 1st Sess.
---------------------------------------------------------------------------
Mr. [John] Taber [of New York]: Mr. Speaker, I make a point of
order against the conference report,(1) and I refer
especially to the paragraph on page 30, under the title of
``Preservation of Ancient Nubian Monuments--Special Foreign
Currency Program'':
---------------------------------------------------------------------------
1. On H.R. 9169, making supplemental appropriations for fiscal year
1962.
---------------------------------------------------------------------------
For purchase of Egyptian pounds which accrue under title I
of the Agricultural Trade Development and Assistance Act of
1954, as amended (7 U.S.C. 1704), for the purposes authorized
by section 104(k) of that Act, $4,000,000 to remain available
until expended.
Mr. Speaker, to my mind that appropriation is not covered by
the statute on which it is based. When we went over there--to the
conference--and marked it up, I understood it was to be brought
back for a separate vote. I did not hear anything else or any talk
except that they were going to knock off a couple of words: ``to
remain available until expended.''
Mr. Speaker, I feel that I should read section 104(k) which is
referred to in the amendment:
To collect, collate, translate, abstract, and disseminate
scientific and technological information and to conduct and
support scientific activities overseas including programs and
projects of scientific cooperation between the United States
and other countries such as coordinated research against
diseases common to all mankind or unique to individual regions
of the globe. No foreign currency shall be used for the purpose
of this section unless specific appropriations be made therfor.
To my mind, this authorization was not covered by the language
of section 104(k). In my opinion, it does not include the sort of
operation that is men
[[Page 5368]]
tioned here. It does not have proper authority for an appropriation
of this character. It does not authorize purchase of currency.
Mr. [Albert] Thomas [of Texas]: Mr. Speaker, I would like the
privilege of addressing the Speaker on this item.
. . . Let me first call the attention of the Speaker to the
exact language on page 30 of the bill:
For purchase of Egyptian pounds which accrue under title I
of the Agricultural Trade Development and Assistance Act of
1954, as amended (7 U.S.C. 1704), for the purposes authorized
by section 104(k) of that act $4 million to remain available
until expended.
Let us see what 104(k) says:
To collect, collate, translate, abstract, and disseminate
scientific and technological information--
That is exactly what you are doing here.
conduct and support scientific activities overseas--
Mr. Speaker, how much more definite could that be?
cooperation between the United States and other countries such
as coordinated research--
And so forth.
Mr. Speaker, that language is very definite and it certainly
covers this like a blanket.
I cannot see any escape from it.
Is that all, now, Mr. Speaker? May I read to the Chair section
502(c) of the Mutual Security Act of 1954, as amended:
It is the sense of the Congress that prompt and careful
consideration should be given to participation by the United States
in an internationally financed program which would utilize--
What?
foreign currencies available to the United States--
To do what?
to preserve the great cultural monuments of the Upper Nile.
Can it be any more specific than that?
Mr. Speaker, I respectfully submit that our able and
distinguished friend's point of order should be overruled.
Mr. Taber: Mr. Speaker, if the Chair will permit, the point on
which this question is to be determined is the authority in section
104(k). There is nothing there that authorizes an appropriation for
the purchase of Egyptian pounds. That is what this appropriation is
made for.
The Speaker Pro Tempore: (2) The Chair is prepared
to rule. . . .
---------------------------------------------------------------------------
2. John W. McCormack (Mass.).
---------------------------------------------------------------------------
. . . [I]t is the opinion of the Chair that section 104(k)
justifies the language contained in the conference report and the
Chair overrules the point of order.
Discussion of Senate Rule Concerning Legislation on Appropriation Bills
Sec. 6.8 Where a general appropriation bill passed by the House
contained legislation, it was held in the Senate that such
legislative provisions permitted the consideration of legislative
amendments.
[[Page 5369]]
On May 29, 1936,(3) the Senate was considering H.R.
12624, a deficiency appropriation bill. The following proceedings took
place:
---------------------------------------------------------------------------
3. 80 Cong. Rec. 8308-10, 74th Cong. 2d Sess.
---------------------------------------------------------------------------
The Presiding Officer: (4) The Senator from Missouri
made the point of order that the committee amendment amounted to
general legislation. The Chair overruled the point of order made by
the Senator from Missouri because title II of the bill as it came
from the House of Representatives contained many matters of general
legislation, and in such a case the rule laid down by Vice
President Marshall is stated thus:
---------------------------------------------------------------------------
4. Carl A. Hatch (N.M.).
---------------------------------------------------------------------------
Notwithstanding the rule of the Senate to the effect that
general legislation may not be attached to an appropriation
bill, still when the House of Representatives opens the door
and proceeds to enter upon a field of general legislation which
has to do with a subject of this character, the Chair is going
to rule--but, of course, the Senate can reverse the ruling of
the Chair--that the House having opened the door the Senate of
the United States can walk in through the door and pursue the
field.
In view of that ruling, the Chair announced that the point of
order made by the Senator from Missouri was overruled. From the
ruling of the Chair the Senator from Missouri has appealed to the
Senate.
Mr. [Joel Bennett] Clark [of Missouri]: Mr. President, I desire
very briefly to discuss the appeal. . . .
The Chair holds, and holds properly, that title II of the bill
does contain some legislation. Many appropriation bills come over
here from the House that contain some item of legislation; but from
the present ruling of the Chair it would follow that if any general
appropriation bill contained any item of legislation, therefore any
other item of legislation would be in order in the Senate on a
general appropriation bill.
I do not believe that is sound. In other words, it seems to me
the necessary application of the ruling of Vice President Marshall,
which the Chair has just read, would be to the particular provision
which it was sought to amend, and that from the ordinary artifice
of dividing a bill into titles, it does not follow that if a
particular title happened to contain matter of legislation it would
open up the whole title to any other item of legislation. In other
words, the question should be whether or not the provision sought
to be stricken out by the pending Senate amendment is legislation,
and whether that should be opened up by the Senate amendment. . . .
Mr. [Alva B.] Adams [of Colorado]: I am thoroughly in accord
with the decision of the Chair, but I beg to differ with the
reasoning. My understanding of the terms ``new legislation'' and
``general legislation'' is that they should be construed to mean
something alien to an appropriation bill. In other words, title II
does not contain within it that which I think can be correctly
defined as new or general legislation. Every part of an
appropriation bill is legislation. An appropriation bill is
legislation. What the rule seeks to forbid is attaching to an
appropriation bill legislation upon other subjects which are new,
and which are matters
[[Page 5370]]
of general legislation, rather than the regulation, the control,
and the direction of the particular appropriation. In that sense I
do not believe that a limitation, however inaptly framed, which is
directed exclusively to the appropriation made by the bill, is
either to be termed ``new'' or ``general'' legislation. Therefore,
it has seemed to me that the premise upon which the Senator from
Arkansas argues is unsound.
I should be willing to concede that if this be legislation
opening the gates, it would open them to germane legislation, and
to germane legislation only. I cannot see that proposed legislation
providing for the appointment of a commission, that commission to
go out and engage in scientific undertakings, scientific
investigations, to determine the commercial feasibility of a
project, is germane to an appropriation bill.
The Presiding Officer: The Chair has not ruled on the question
as to whether or not it must be germane. The only question on which
the Chair ruled was the point of order made by the Senator from
Missouri.
Mr. Adams: I wanted it made clear that my original point of
order was submitted on the ground that the amendment of the Senator
from Arkansas was general legislation and that it was not germane
to the bill.
The Presiding Officer: The question is, Shall the decision of
the Chair stand as the judgment of the Senate? . . .
Mr. Clark: I ask for the yeas and nays.
The yeas and nays were ordered. . . .
The Presiding Officer: The question raised by the point of
order made by the Senator from Missouri goes only to the committee
amendment. The Chair overruled the point of order made by the
Senator from Missouri, holding that, while the amendment did amount
to general legislation, nevertheless title II of the bill itself
contained many items of general legislation, and under the ruling
of Vice President Marshall, the Chair, having been advised that
that ruling has been uniformly followed, held that the House of
Representatives having opened the door, the Senate could go in.
Those were the words of Vice President Marshall. A vote to sustain
the ruling of the Chair should be in the affirmative; a vote
against the ruling of the Chair should be in the negative. . . .
[The result was announced--yeas 53, nays 19.]
So the decision of the Chair was sustained.
On the question of the germaneness of an amendment offered by Mr.
Joseph T. Robinson, of Arkansas, to the committee amendment discussed
above, the following statement was made:
The Vice President (John N. Garner, of Texas): Let the Chair
once more state his understanding of the parliamentary situation.
The present occupant regrets he was not in the chair at the time
the original point of order was made. The Senate by a vote of 53 to
19 has determined that the committee amendment to the appropriation
bill is in order. Therefore, any amendment that is germane to the
legislation is in order. The question of germaneness of the
amendment offered by the Senator
[[Page 5371]]
from Arkansas is the question now before the Senate.
Apparently, as the Chair is advised by the Parliamentarian,
whoever drew the rules of the Senate was not willing to trust the
presiding officer to determine the germaneness of an amendment of
this kind, as, under the rules, the Chair does not have the right
to determine the germaneness of an amendment to legislation on an
appropriation bill. The Chair, therefore, submits to the Senate the
question, Is the amendment of the Senator from Arkansas germane to
the amendment of the committee?
[On a yea and nay vote, the Senate decided Mr. Robinson's
amendment to be germane to the amendment reported by the
committee--yeas 53, nays 21.]
Germane Amendment to Senate Legislative Amendment Reported in
Disagreement
Sec. 6.9 A Senate amendment containing legislation reported from
conference in disagreement may be amended by a germane amendment
even though the proposed amendment is also legislative.
On Aug. 1, 1979,(5) during consideration in the House
of H.R. 4388 (energy and water development appropriation bill), a
motion was held in order as indicated below:
---------------------------------------------------------------------------
5. 125 Cong. Rec. 22007, 96th Cong. 1st Sess.
---------------------------------------------------------------------------
Mr. [Tom] Bevill [of Alabama]: Mr. Speaker, I offer a motion.
The Clerk read as follows:
Mr. Bevill moves to recede in the amendment of the Senate
No. 37 and concur therein with an amendment as follows in lieu
of the matter proposed to be inserted by the Senate insert:
Sec. 502. There is appropriated, out of any money in the
Treasury not otherwise appropriated, for an additional amount
for ``Construction of an Extension to the New Senate Office
Building'' $52,583,400 toward finishing such building and to
remain available until expended: Provided, That the amount of
$137,730,400 shall constitute a ceiling on the total cost for
construction of the Extension to the New Senate Office
Building.
It is further provided, That such building and office space
therein upon completion shall meet all needs for personnel
presently supplied by the Carroll Arms, the Senate Courts, the
Plaza Hotel, the Capitol Hill Apartments and such buildings
shall be vacated.
Mr. [Robert E.] Bauman [of Maryland]: Mr. Speaker, a point of
order. . . .
[T]his amendment offered at this time would not have been in
order had it been offered to the bill as originally before the
House. The bill is an appropriation bill and this constitutes
legislation on an appropriation bill. . . .
Mr. Bevill: Mr. Speaker, I wish to point out this is merely a
change of the report language that is in the appropriation bill and
it is germane and it is a part of the bill.
The Speaker Pro Tempore: (6) The Chair is prepared
to rule. The Chair would like to state that the only requirement of
the amendment in the
[[Page 5372]]
motion offered by the gentleman from Alabama is that it be germane
to the Senate amendment. The language is quite clearly germane to
the Senate amendment No. 37 and, therefore, the motion is in order
and the point of order is overruled.
---------------------------------------------------------------------------
6. James C. Wright, Jr. (Tex.).
---------------------------------------------------------------------------
CHAPTER 26
Unauthorized Appropriations; Legislation on Appropriation Bills
B. APPROPRIATIONS FOR UNAUTHORIZED PURPOSES
Sec. 7. In General
The rule (7) prohibiting unauthorized appropriations and
legislation on general appropriation bills is applicable only to
general appropriation bills. In addition to the precedents in this
chapter, extensive discussion of bills considered to be or not to be
``general'' appropriation bills is found in the preceding chapter on
appropriation bills.(8) Further discussion of the general
requirement that appropriations be authorized is also to be found in
that chapter.
---------------------------------------------------------------------------
7. Rule XXI clause 2. See Sec. 1, supra, for text and discussion of
the rule.
8. Ch. 25, supra.
---------------------------------------------------------------------------
Where the law authorizes appropriations only out of a special fund,
appropriations from the general fund are deemed
unauthorized.(9)
---------------------------------------------------------------------------
9. See Sec. Sec. 35.1, 35.2,
infra. -------------------
---------------------------------------------------------------------------
Contingent Upon Enactment of Authorization
Sec. 7.1 Language in an appropriation bill providing funds for projects
not yet authorized by law is legislation and not in order.
On Sept. 5, 1961,(10) during consideration in the
Committee of the Whole of a general appropriation bill (H.R. 9033), a
point of order was raised against the following provision:
---------------------------------------------------------------------------
10. 107 Cong. Rec. 18179, 87th Cong. 1st Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
Title V--Peace Corps
Funds appropriated to the President
Peace Corps
For expenses necessary to enable the President to carry out
the provisions of the Peace Corps Act, including purchase of
not to exceed sixteen passenger motor vehicles for $20,000,000:
Provided, That this paragraph shall be effective only upon
enactment into law of S. 2000 or H.R. 7500, Eighty-seventh
Congress, or similar legislation to provide for a Peace Corps.
Mr. [Edgar W.] Hiestand [of California]: Mr. Chairman, a
parliamentary inquiry.
The Chairman: (11) The gentleman will state it.
---------------------------------------------------------------------------
11. Wilbur D. Mills (Ark.).
---------------------------------------------------------------------------
Mr. Hiestand: Title V, which has just been read, has not yet
been au
[[Page 5373]]
thorized and therefore is subject to a point of order.
The Chairman: Does the gentleman from Louisiana desire to be
heard on the point of order?
Mr. [Otto E.] Passman [of Louisiana]: We concede the point of
order, Mr. Chairman.
The Chairman: The gentleman from Louisiana concedes the point
of order and the Chair sustains the point of order made by the
gentleman from California (Mr. Hiestand).
Sec. 7.2 In a general appropriation bill, a paragraph making an
appropriation contingent upon the subsequent enactment of
authorizing language is in violation of Rule XXI clause 2.
On May 3, 1967,(12) during consideration in the
Committee of the Whole of a supplemental appropriation bill (H.R.
9481), a point of order was raised against the following provision:
---------------------------------------------------------------------------
12. 113 Cong. Rec. 11589, 90th Cong. 1st Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
Chapter VIII
Military Construction
Family Housing
homeowners assistance fund, defense
For the Homeowners Assistance Fund, established pursuant to
section 1013(d) of the Demonstration Cities and Metropolitan
Development Act of 1966 (Public Law 89-754, approved November
3, 1966), $5,500,000, to remain available until expended:
Provided, That this paragraph shall be effective only upon
enactment into law of S. 1216, Ninetieth Congress, or similar
legislation.
Mr. [Durward G.] Hall [of Missouri]: Mr. Chairman, a point of
order.
The Chairman: (13) The gentleman will state his
point of order.
---------------------------------------------------------------------------
13. James G. O'Hara (Mich.).
---------------------------------------------------------------------------
Mr. Hall: Mr. Chairman, I wish to make a point of order asking
the Chair to strike chapter 8 of the second supplemental
appropriation bill, to be found on page 17, lines 6 through 16
thereof, for the reason there has been no authorization of this
appropriation and that it is contrary to rule XXI (2) of this body.
Consideration of S. 1216 is now before this body's Committee on
Rules, it is controversial, it has mixed jurisdictional parentage,
and it came out of the Committee on Armed Services with eight or
more opposing votes. It can be defeated on the floor.
The Chairman: Does the gentleman from Florida seek to be heard
on this point of order?
Mr. [Robert L. F.] Sikes [of Florida]: I do, Mr. Chairman.
Mr. Chairman, as the bill states and as the report states,
there is a requirement for the enactment of authorizing
legislation. The bill which is before the House clearly requires
that appropriations for the acquisition of properties must be
authorized by a military construction authorization act, and that
no moneys in the fund may be used except as may be provided in an
appropriation act, and it would clearly protect the Congress and
fulfill the requirements of the law.
[[Page 5374]]
What we are seeking to do is to put into operation an immediate
program. If we do not provide funds now for people who need money
for losses in their property as a result of base closures, it is
going to be some months before it can be done, probably, in the
regular appropriation bill.
Of course, the language is subject to a point of order. We
concede that. If the gentleman insists on his point of order, that
is the story, but the homeowners will be the ones who suffer
unnecessarily.
The Chairman: The Chair is prepared to rule. As the gentleman
from Florida has conceded, the language objected to by the
gentleman from Missouri is subject to a point of order in that no
authorization has been enacted into law. The Chair, therefore,
sustains the point of order.
Sec. 7.3 An item of appropriation providing for an expenditure not
previously authorized by law is not in order; and delaying the
availability of the appropriation pending enactment of an
authorization does not protect the item of appropriation against a
point of order under Rule XXI clause 2.
On Apr. 26, 1972,(14) during consideration in the
Committee of the Whole of a supplemental appropriation bill (H.R.
14582), a point of order was raised against the following provision:
---------------------------------------------------------------------------
14. 118 Cong. Rec. 14455, 92d Cong. 2d Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
Federal Railroad Administration
grants to national railroad passenger corporation
To enable the Secretary of Transportation to make grants to
the National Railroad Passenger Corporation, as authorized by
section 601 of the Rail Passenger Service Act of 1970, as
amended, $170,000,000, to remain available until expended:
Provided, That this appropriation shall be available only upon
the enactment into law of authorizing legislation by the
Ninety-second Congress. . . .
Mr. [Charles A.] Vanik [of Ohio]: Mr. Chairman, I make a point
of order against the $170 million appropriation for Amtrak.
The Chairman: (15) The gentleman will state his
point of order.
---------------------------------------------------------------------------
15. Jack B. Brooks (Tex.).
---------------------------------------------------------------------------
Mr. Vanik: Mr. Chairman, the authorization has not yet been
made. The fact that the authorization passed the House of
Representatives would not make the appropriation valid. . . .
Mr. [George H.] Mahon [of Texas]: Mr. Chairman, the House has
passed the authorization bill. It has not been enacted into law. I
think the point of order is well taken.
The Chairman: Does the gentleman from Texas concede the point
of order?
Mr. Mahon: I concede the point of order, Mr. Chairman. . . .
The Chairman: The Chair understands that the chairman of the
committee concedes the point of order. Therefore, the point of
order is sustained.
[[Page 5375]]
Authorization Revoked by Law Requiring Subsequent Authorization
Sec. 7.4 An act providing that, notwithstanding any other law, ``no
appropriation may be made to the National Aeronautics and Space
Administration unless previously authorized by legislation
hereafter enacted by the Congress,'' was construed to have voided
all previous authorizations for appropriations to that agency, so
that an appropriation for ``research and development'' was held not
authorized by law.
On June 29, 1959,(16) the Committee of the Whole was
considering H.R. 7978, a supplemental appropriation bill. During the
reading of the bill for amendment, the Clerk read the following
paragraph against which a point of order was sustained:
---------------------------------------------------------------------------
16. 105 Cong. Rec. 12125, 86th Cong. 1st Sess.
See also 105 Cong. Rec. 12130, 86th Cong. 1st Sess., June
29, 1959.
---------------------------------------------------------------------------
Research and Development
For an additional amount for ``Research and development'',
fiscal year 1959, $18,675,000, to remain available until expended.
Mr. [H. R.] Gross [of Iowa]: Mr. Chairman, a point of order.
The Chairman: (17) The gentleman will state his
point of order.
---------------------------------------------------------------------------
17. Paul J. Kilday (Tex.).
---------------------------------------------------------------------------
Mr. Gross: Mr. Chairman, I make the point of order against the
language on page 4, lines 2, 3, and 4, on the ground that there is
no authorization in basic law for this appropriation to be made.
In connection with that, I send a copy of Public Law 86-45 of
the 86th Congress to the Chair. I make the point of order on the
ground that there is no authorization in basic law for this
appropriation to be made. The authorization for this appropriation
did exist at one time, but it was repealed by the act of June 15,
1959, Public Law 86-45, section 4. . . .
Sec. 4. Notwithstanding the provisions of any other law, no
appropriation may be made to the National Aeronautics and Space
Administration unless previously authorized by legislation
hereafter enacted by the Congress.
This law, Mr. Chairman, was approved on June 15, 1959. This
language clearly indicates, Mr. Chairman, that appropriations can
be made for items authorized by legislation which is hereafter
enacted, meaning after June 15, 1959. Section 4 clearly states that
appropriations can be made only for items authorized after June 15,
1959, hence all previous authorizations are voided. . . .
The Chairman: The gentleman from Iowa has made a point of order
against that portion of the bill appearing in lines 2, 3, and 4,
page 4, and has called the attention of the Chair to section 4 of
Public Law 86-45. In view of the language cited, the Chair sustains
the point of order.
[[Page 5376]]
Waiver of Points of Order Against Items ``Not Yet Authorized''
Sec. 7.5 Where the Committee on Rules had intended to recommend a
waiver of points of order against unauthorized items in a general
appropriation bill but not against legislative language therein,
the Member calling up the resolution offered an amendment to
reflect that intention.
On July 21, 1970,(18) the following proceedings took
place:
---------------------------------------------------------------------------
18. 116 Cong. Rec. 25240-42, 91st Cong. 2d Sess.
---------------------------------------------------------------------------
Mr. [John A.] Young [of Texas]: Mr. Speaker, by direction of
the Committee on Rules, I call up House Resolution 1151 and ask for
its immediate consideration.
The Clerk read the resolution as follows:
H. Res. 1151
Resolved, That during the consideration of the bill (H.R.
18515) making appropriations for the Departments of Labor, and
Health, Education, and Welfare, and related agencies, for the
fiscal year ending June 30, 1971, and for other purposes, all
points of order against said bill for failure to comply with
the provisions of clause 2, rule XXI are hereby waived.
Mr. Young: . . . Mr. Speaker, House Resolution 1151 is a
resolution waiving points of order against certain provisions of
H.R. 18515, the Departments of Labor, Health, Education, and
Welfare and related agencies appropriation bill for fiscal year
1971. . . .
Because the authorizations have not been enacted, points of
order are waived against the bill for failure to comply with the
first provision of clause 2, rule XXI. By mistake, the second
provision was covered by the rule--so I have an amendment at the
desk to correct the resolution.
Now, Mr. Speaker, as stated there is a clerical error in the
rule and at the proper time I shall send to the desk a committee
amendment to correct the clerical error. . . .
The Clerk read as follows:
Amendment offered by Mr. Young: Strike out lines 5 through
7 of the resolution and insert in lieu thereof the following:
``purposes, all points of order against appropriations carried
in the bill which are not yet authorized by law are hereby
waived.''
The amendment was agreed to. . . .
The resolution was agreed to.
Executive Order Not Sufficient Authorization
Sec. 7.6 A Presidential order creating a War Relocation Authority was
held not an authorization in law for an appropriation for expenses
incurred incident to the establishment, maintenance, and operation
of the emergency refugee shelter at Fort Ontario, New York.
[[Page 5377]]
On Mar. 2, 1945,(19) the Committee of the Whole was
considering H.R. 2374, a deficiency appropriation bill. During the
reading of the bill for amendment, a point of order was raised against
the bracketed language below:
---------------------------------------------------------------------------
19. 91 Cong. Rec. 1682, 1683, 79th Cong. 1st Sess.
---------------------------------------------------------------------------
War Relocation Authority
Salaries and expenses: The limitation in the appropriation for
salaries and expenses, War Relocation Authority, in the National
War Agency Appropriation Act, 1945, on the amount which may be
expended for travel is hereby increased from $375,000 to $475,000;
[and of said appropriation not to exceed $280,477 is made available
for expenses incurred during the fiscal year 1945 incident to the
establishment, maintenance, and operation of the emergency refugee
shelter at Fort Ontario, N.Y., provided for in the President's
message of June 12, 1944, to the Congress (H. Doc. 656).]
Mr. [Henry C.] Dworshak [of Idaho]: Mr. Chairman, I make the
point of order against that part of the section following the
semicolon in line 20 and ending on page 14, line 2, that it is
legislation on an appropriation bill; furthermore, that there is no
specific authority in existing statutes for the operation of this
particular program. The Executive order of the President which
created the War Relocation Authority does not encompass the
activities for which these funds would be used.
Mr. [Clarence] Cannon [of Missouri]: Mr. Chairman, the item is
not subject to a point of order. As the committee will recall, the
action of the military authorities in moving from the West Coast
for supervised segregation all persons of Japanese ancestry, was
one of the most mooted questions in the early days of the war. It
was done under Executive authority by virtue of Executive Order No.
9102, establishing the War Relocation Authority in the Executive
office of the President and defining its functions and duties. It
was financed as many of the early war activities were financed out
of the President's special fund. It is therefore authorized by law.
This is tantamount to a reappropriation of funds, and is admissible
under the rules. There are no grounds upon which a point of order
can be sustained.
Mr. Dworshak: The gentleman has been referring to the Executive
order which created the War Relocation Authority; but this refugee
activity ostensibly would be conducted under the Executive order
which created the War Refugee Board. I submit that there has been
no legislation enacted by Congress which authorizes the
appropriation of funds for this specific program.
Mr. Cannon of Missouri: As I understand, the gentleman's point
of order goes to the item in line 21 on page 13 appropriating
$280,477. That is in effect a reappropriation for the War
Relocation Authority and is therefore in order.
Mr. Dworshak: No provision has been made for funds for the
operation of the War Refugee Board. I am not questioning the
Authority for the appropriation for the War Relocation Authority,
but there is no existing authority for the other activity.
Mr. Cannon of Missouri: This is really a function of the War
Relocation
[[Page 5378]]
Authority, and we are merely making a reappropriation.
Mr. Dworshak: There has never been any appropriation made, so
it cannot be a reappropriation for the War Refugee Board.
Mr. Cannon of Missouri: This is a reappropriation of funds
formerly supplied by the President's fund.
Mr. Dworshak: There has never been any appropriation for that
activity.
The Chairman: (20) May the Chair ask the chairman of
the committee, the gentleman from Missouri [Mr. Cannon], if it is
his contention that the Executive order by the President would be
law within the meaning of the rule requiring appropriations to be
authorized by law?
---------------------------------------------------------------------------
20. John J. Sparkman (Ala.).
---------------------------------------------------------------------------
Mr. Cannon of Missouri: In the Federal Register of Friday,
March 20, 1942, appears a copy of the Executive order. Its
functions are fully outlined there. One of its duties would be the
establishment of such a refugee shelter as is provided here in the
bill. Money has been provided for the support of the activities of
this Authority out of the President's fund. This activity was
initiated under competent authority and under authority of law and
is work in progress. It is therefore in order under the rules of
the House.
Mr. Dworshak: Mr. Chairman, may I add this point: The chairman
of the committee persists in referring to Executive Order No. 9102,
which created the War Relocation Authority, while I also direct
attention to another Executive order which was issued on January
22, 1944, under which the War Refugee Board was created and under
which this particular activity has been maintained. There has never
been any specific authority in law or any appropriation made
heretofore, so it cannot be a reappropriation of funds.
Section 213 of Public Law 358, making appropriations for the
executive offices for the fiscal year ending June 30, 1945,
requires any agency established by Executive order, having been in
existence for more than 1 year, to come to Congress for a regular
appropriation. As the War Refugee Board had been created under
Executive Order No. 9417 and had utilized money provided by the
President from his emergency war fund, it is obvious that no
specific authorization has heretofore been considered by Congress
for this activity.
The Chairman: The Chair is prepared to rule.
The gentleman from Idaho [Mr. Dworshak] makes the point of
order against the language beginning in the concluding part of line
20 on page 13 and extending through the balance of the paragraph,
that this appropriation is not authorized by law.
Under the rules of the House, no appropriation shall be
reported in any general appropriation bill, or be in order as an
amendment thereto, for any expenditure not previously authorized by
law.
It is the opinion of the Chair that an Executive order does not
meet the requirement stated in that rule. Therefore, not being
authorized by law enacted by Congress, the appropriation would not
be in order. The mere fact that it may be a reappropriation would
not make it in order if the original appropriation was not
authorized by law.
[[Page 5379]]
Therefore, the Chair sustains the point of order made by the
gentleman from Idaho.
Sec. 7.7 An Executive order does not constitute sufficient
authorization ``by law'' absent proof of its derivation from a
statute enacted by Congress authorizing the appropriation; and an
appropriation for the Office of Consumer Affairs, established by
Executive order, was stricken from a general appropriation bill
when the Committee on Appropriations failed to cite statutory
authority, other than for funds for personnel, in support of that
item.
On June 15, 1973,(1) the following item in the
agricultural, environmental and consumer protection appropriations for
1974 (2) was under consideration:
---------------------------------------------------------------------------
1. 119 Cong. Rec. 19855, 93d Cong. 1st Sess.
2. H.R. 8619.
---------------------------------------------------------------------------
For necessary expenses of the Office of Consumer Affairs,
established by Executive Order 11583 of February 24, 1971, as
amended, $1,140,000, including services authorized by 5 U.S.C.
3109.
A point of order was then raised:
Mr. [H. R.] Gross [of Iowa]: Mr. Chairman, I rise to make a
point of order against the language to be found on page 43,
beginning with line 11 and running through line 15.
Mr. Chairman, I make the point of order only because I do not
believe the Executive orders should be substituted for
authorizations by law.
The Chairman [James C. Wright, Jr., of Texas]: Does the
gentleman from Mississippi wish to be heard on the point of order?
Mr. [Jamie L.] Whitten [of Mississippi]: Mr. Chairman,
notwithstanding an earlier ruling, I should like to point out
something with respect to the Executive order:
Amending Executive Order 11583, establishing Office of
Consumer Affairs. By virtue of the authority vested in me as
President of the United States, Executive Order 11583, page 24,
is amended by substituting for section 1 thereof the following:
If the President of the United States has authority to issue
it, the point of order should be overruled. If he does not, it
should be sustained.
The Chairman: The Chair is prepared to rule.
As cited earlier, it is required that any activity for which an
appropriation is contained in a general appropriation bill shall be
an activity authorized by law. The Chair observes that in the
stated provision two authorities are cited.
One is the Executive Order 11583; the other one is 5 U.S.C.
3109. Apparently the authorization cited, 5 U.S.C. 3109, is only
for personnel.
Therefore, the Chair must conclude that the authority cited is
Executive Order 11583.
The Chair, of course, is not knowledgeable as to the authority
or lack of
[[Page 5380]]
authority inherent in the President to issue such an Executive
order, but the Chair believes the burden should be upon the
committee to cite statutory authorization rather than Executive
order, which under the rules does not qualify within the meaning of
the word, ``law.''
Mr. Whitten: Mr. Chairman, may I ask for my own information and
future study, does that mean that the legislature must come before
the Congress and it does not have the presumption of right, and
only those who attack it can prove otherwise? Now, if the Chair
proves to be right, it means that everything has to be proven verse
by verse and chapter by chapter. I would presume from my own study
of law and my own interpretation that that which comes here in the
regular way would be in order unless proven otherwise. I think the
Chair has shifted the burden onto the legislative body, as between
the three branches of government, as it relates to that branch
which claims the right, and I think as long as that is claimed and
exercised, the burden would be on the antagonist or the gentleman
who raised the point of order.
The Chairman: The gentleman from Mississippi [Mr. Whitten] may
be entirely right in his assumption that the President, in issuing
Executive Order 11583, was doing so pursuant to congressional
enactment.
The Chair, lacking knowledge of the source of that authority,
believes that the history of rulings from this Chair is that it has
been consistently held that law, within the meaning of rule XXI,
embraces statutory law enacted by Congress and does not cover
Executive orders issued by the executive branch of Government.
For example, the Chair refers to a ruling made by Chairman
Sparkman on July 5, 1945, in which the Chair declared:
An Executive order does not meet the requirement that
appropriations must be authorized by law.
Mr. Whitten: Mr. Chairman, I have gone far afield in my
discussion with my friend, the gentleman in the Chair, but do I
understand that whatever commission may exist for various other
actions taken by the executive branch, this cannot be advanced by
the Committee on Appropriations, and is that ruling a complete
ruling to exclude from the appropriation process anything that is
created by Executive order?
Mr. Chairman, I have some other bills coming up. I have never
before heard of such an action.
The Chairman: The Chair cannot and would not rule on that
question, because it involves a hypothetical situation in the
future; nor can the Chair predict with certainty what some future
occupant of the Chair might rule.
The Chair simply declares that under precedents heretofore
cited, executive orders do not meet the test of law, as required in
the rules, for the citation of an authorization for an
appropriation, and for that reason the Chair sustains the point of
order in the present case.
Sec. 7.8 Pursuant to Rule XXI clause 2, and 36 USC Sec. 673,
commissions and councils must have been established by law--and not
merely by Executive order--prior to the
[[Page 5381]]
expenditure of federal funds therefor. A lump sum amount for the
Civil Service Commission contained in a general appropriation bill
was conceded to be in violation of Rule XXI clause 2, where it was
shown that a portion of that amount was intended to fund the
President's Commission on Personnel Interchange--a commission
established solely by Executive order and not created by law.
On June 25, 1974,(3) during consideration of the
Departments of the Treasury, Postal Service, and Executive Office
appropriations for fiscal 1975,(4) a point of order was made
against the following provisions:
---------------------------------------------------------------------------
3. 120 Cong. Rec. 21036, 21037, 93d Cong. 2d Sess.
4. H.R. 15544.
---------------------------------------------------------------------------
For necessary expenses, including services as authorized by 5
U.S.C. 3109; medical examinations performed for veterans by private
physicians on a fee basis; rental of conference rooms in the
District of Columbia; hire of passenger motor vehicles; not to
exceed $2,500 [for official reception and representation expenses;]
and advances or reimbursements to applicable funds of the
Commission and the Federal Bureau of Investigation for expenses
incurred under Executive Order 10422 of January 9, 1953, as
amended; ($90,000,000 together with not to exceed $18,698,000 for
current fiscal year administrative expenses for the retirement and
insurance programs to be transferred from the appropriate trust
funds of the Commission in amounts determined by the Commission
without regard to other statutes: Provided, That the provisions of
this appropriation shall not affect the authority to use applicable
trust funds for administrative expenses of effecting statutory
annuity adjustments.) No part of the appropriation herein made to
the Civil Service Commission shall be available for the salaries
and expenses of the Legal Examining Unit of the Commission,
established pursuant to Executive Order 9358 of July 1, 1943, or
any successor unit of like purpose.
Point of Order
Mr. [Charles A.] Vanik [of Ohio]: Mr. Chairman, I make a point
of order on the language beginning at line 12 on page 12 of this
bill with the figures ``$90,000,000'' through line 20 ending in the
word ``adjustments.'' . . . Mr. Chairman, the basis for this point
of order is the requirement of House rule XXI clause 2, which
provides that:
No appropriation shall be reported in any general
appropriation bill, or be in order as an amendment thereto, for
an expenditure not previously authorized by law.
Mr. Chairman, it is my understanding that there is in fact no
authorization for the President's Commission on Personnel
Interchange for which $353,000 is herein requested. It was created
solely by Executive Order 11451 on January 19, 1969.
This House rule is supported in this regard by title 36 of the
United States
[[Page 5382]]
Code, section 673, which also indicates that no funds should be
expended by this body without authorization. The full section of
the law reads as follows:
Title 36, Section 673
No part of the public monies, or of any appropriation made
by Congress, shall be used for the payment of compensation or
expenses of any commission, council or other similar body, or
any members thereof, or for expenses in connection with any
work or the results of any work or action of commission,
council, board, or similar body, unless the creation of the
same shall be or shall have been authorized by law; nor shall
there be employed any detail hereafter or heretofore made or
otherwise personal services from any Executive Department or
other Government establishment in connection with any such
commission, council, board, or similar body.
Mr. Chairman, I have a particular concern in regard to a
program whose appropriation is contained within the language of
lines 12 through 20 of page 12 of this bill. The program is the
President's Commission on Personnel Interchange, created solely by
Executive Order 11451. There has never been an authorization
hearing concerning its operation, since its creation at the
beginning of 1969.
A preliminary examination during the past several months by my
office and the GAO has revealed a series of potential conflicts of
interest. These problems are so serious that the GAO has already
referred two cases involving Presidential interchange personnel to
the Justice Department for potential criminal conflicts-of-interest
violations.
Mr. Chairman, this point of order does not necessarily mean the
end of this program. The Congress may and should consider it
through the regular authorization process. By following normal
procedures, the Congress may be able to write in safeguards
preventing future conflict-of-interest problems.
In addition, one must remember that the program's cost of
$353,000 as outlined in one brief sentence in the House
subcommittee hearing, is only one-tenth of the actual cost of this
program since all salaries, travel, moving expenses, and other
incidental costs are paid fully by the agency which hires for 1
year an interchange candidate.
I have grave reservations concerning the continuation of this
program at all, since I believe that agencies which regulate
certain industries will surely have problems with conflict of
interest when they hire key industry personnel from the very
industries which they are supposed to regulate. I object to
personnel from oil companies being hired by FEO and predecessor
agencies. I object when a person from the pesticides division from
a major company ends up at the pesticide control division of EPA; I
object when an auditor from a large accounting firm works for the
chief auditor of the SEC--and the SEC has filed allegation of fraud
against the firm from which the interchange candidate works for.
The list of obvious potential conflicts of interest is endless.
Who among us knows how many real conflicts have existed because of
the manner in which this program has proceeded. It seems to me that
the Congress must be very alert to prevent potential conflicts of
interest. We must not participate in the institutionalization of
potential
[[Page 5383]]
conflict-of-interest situations because of programs just like the
Presidential interchange program.
As the GAO recently said in its report to me on conflicts of
interest in this program:
In our view, the more important question raised by FEO's
use of presidential executive interchange program personnel
with oil and related industry backgrounds concerns the judgment
exercised in placing executives on a year's leave of absence
from private industry in positions in an agency exercising a
regulatory-type responsibility over the activities of the very
company to which the individual involved will return at the
completion of his year's assignment. It was this action which
created potential conflict of interest situations. At your
request, we now are making a broad review of the Presidential
Executive Interchange program.
It took us years to begin to root out this very kind of
conflict system at the Department of Defense and here we are, a
party to its institutionalization.
In any event, I feel strongly that the appropriation of funds
for this program would be contrary to both the statute and House
rule I have cited.
I ask the Chair to rule.
The Chairman [B. F. Sisk, of California]: Does the gentleman
from Oklahoma desire to be heard on the point of order?
Mr. [Thomas J.] Steed [of Oklahoma]: Mr. Chairman, we concede
the point of order.
The Chairman: The gentleman from Oklahoma (Mr. Steed) concedes
the point of order.
The point of order is sustained.
Reorganization Plan as Authorization
Sec. 7.9 While an Executive order creating a federal office cannot,
standing alone, be considered authority in law for appropriations
for that office, a reorganization plan from which that office
derives may be cited by the Committee on Appropriations to support
such an appropriation. A reorganization plan submitted by the
President pursuant to 5 USC Sec. 906 has the status of statutory
law when it becomes effective and is sufficient authority to
support an appropriation under Rule XXI clause 2.
On June 21, 1974,(5) the agricultural, environmental and
consumer affairs appropriations for fiscal 1975(6) were
under consideration. A point of order was made against an item in the
bill, as follows:
---------------------------------------------------------------------------
5. 120 Cong. Rec. 20595, 20596, 93d Cong. 2d Sess.
6. 6. H.R. 15472.
---------------------------------------------------------------------------
For necessary expenses of the Office of Consumer Affairs,
including services authorized by 5 U.S.C. 3109, $1,365,000.
Point of Order
Mr. [Robert E.] Bauman [of Maryland]: Mr. Chairman, I have a
point of
[[Page 5384]]
order pertaining to title IV on page 45, lines 9 through 14, under
the title ``Consumer Programs, Department of Health, Education, and
Welfare, Office of Consumer Affairs'' on the ground that it
violates rule XXI, clause 2, in that there is no existing statutory
authority for this office, and I cite as authority the fact that
last year this same point of order was made and the Chair ruled
that there was no existing authority.
The Subcommittee on Agricultural Appropriations raised this
question during their hearing, and a memorandum was submitted from
the Department of Health, Education, and Welfare which in effect
cited several different statutes, none of which pertained to an
Office of Consumer Affairs. I, therefore, insist upon this point of
order and ask that this language be stricken.
The Chairman [Sam M. Gibbons, of Florida]: Does the gentleman
from Mississippi wish to be heard?
Mr. [Jamie L.] Whitten [of Mississippi]: Mr. Chairman, I do
wish to be heard. It is pointed out on page 967 of the hearings
that we had submitted the report from the Department of HEW, dated
March 21, 1974, in which they cite:
Reorganization Plan No. 1 of 1953 provides in pertinent
part: ``In the interest of economy and efficiency the Secretary
may from time to time establish central . . . services and
activities common to the several agencies of the Department . .
.'' [section 7].
Later this report says:
The Office of Consumer Affairs, they include policy
guidance responsibility respecting the relationship of all of
the statutes of the Department to the consumer interest.
So this agency is in line with the Reorganization Plan No. 1 of
1953 which was approved and authorized by the Congress, and for
that reason it is within the authorization of the law.
The Chairman: Could the gentleman from Mississippi give us the
statutory citation for this office?
Mr. Whitten: It is Reorganization Plan No. 1 of 1953.
Mr. [John D.] Dingell [of Michigan]: Mr. Chairman, may I be
heard in connection with the point of order?
The Chairman: The gentleman will proceed.
Mr. Dingell: Mr. Chairman, I would point out that the
Appropriations Committee only has authority, and I would say my
good friend, the gentleman from Mississippi, is one of the most
wise and able Members of this body and he is well aware of the fact
that the reorganization plans are not statutory in effect and do
not confer the authority on the executive branch to procure and
expend appropriated funds. They do not constitute an authorization
and, therefore, even though there is a reorganization plan in being
it does not constitute the basis upon which the committee may
predicate appropriations.
The Chairman: Last year when this same point was raised, the
authority that was cited was an Executive order. The Chair will
state that a reorganization plan-which was not cited as authority
on June 15, 1973 - once it has become effective, has the effect of
law and of statute and, therefore, the point of order would have to
be overruled.
Mr. Dingell: Mr. Chairman, if the Chair will permit me further,
the gen
[[Page 5385]]
tleman does not cite the Reorganization Act. He recites a
reorganization plan which is very different from a Reorganization
Act.
The Chairman: The Chair understands that if the reorganization
plan has become effective, if it was not rejected by the Congress
within the time provided, it has the effect of a statute.
Mr. Dingell: It does not constitute statutory authority.
The Chairman: The Chair overrules the point of order. The Chair
has examined the law and is citing from title V, United States
Code, section 906, which prescribes the procedure by which a
reorganization plan does become effective. It is clear to the Chair
that Reorganization Plan No. 1 of 1953 has the effect of law, and
therefore, the point of order is overruled.
Parliamentary Inquiry
Mr. Bauman: Mr. Chairman, a parliamentary inquiry.
The Chairman: The gentleman will state his parliamentary
inquiry.
Mr. Bauman: The legal position of the Office of Consumer
Affairs has not been the subject, as I understand it, or any change
in status so far as an Executive order issued in the interim since
the last ruling of the Chair in June 1973, and no statutory
authority has occurred to authorize its existence; so how can this
office now be authorized?
The Chairman: The point is that last year the burden was on the
Committee on Appropriations. No statutory provision was cited. This
year they have cited authority other than an Executive order.
The Chair has examined the pertinent statutes and the Chair
overrules the point of order.
The Chair recognizes the gentleman from California.
Mr. [Chet] Holifield [of California]: Mr. Chairman, let me say
that I handled the Reorganization Act on the floor that puts the
different agencies that were related to environmental duties
together into the Environmental Protection Agency. We did not
change the statutes that created the different programs, nor did we
change committee jurisdictions over the different programs. We left
them exactly like they were and are and, therefore, the Chair in my
opinion has ruled rightly that the statutes that pertain to the
different programs from the Government committees, still exist.
Therefore, they have the right to continue to authorize those
programs and, of course, the Committee on Appropriations can group
their work on appropriations in any way they wish, as was proved by
their concentration of authorized energy programs into their
centralized consideration. So I think the Chair has ruled rightly.
Parliamentarian's Note: The ruling referred to by Mr. Bauman
occurred on June 15, 1973.(7) In that instance, the Chair
(8) held that an Executive order does not constitute
sufficient authorization ``by law'' in the absence of proof of its
derivation from a statute enacted by Congress authorizing the
appropriation. In accordance with the principle that the burden of
proving that an item contained in
[[Page 5386]]
a general appropriation bill is authorized by law is upon the Committee
on Appropriations, which must cite statutory authority for the
appropriation, an appropriation for the Office of Consumer Affairs,
established by Executive order, was stricken from a general
appropriation bill when the Appropriations Committee failed to cite
statutory authority, other than for funds for personnel, in support of
that item.
---------------------------------------------------------------------------
7. 119 Cong. Rec. 19855, 93d Cong. 1st Sess.
8. James C. Wright, Jr. (Tex.).
---------------------------------------------------------------------------
Lump-sum Appropriation Only for Authorized Purposes
Sec. 7.10 To a bill providing a lump-sum appropriation for expenses
necessary for collection and study of information pertaining to
river and harbor projects, a substitute amendment increasing the
lump-sum appropriation in order to provide funds for an additional
survey was held to be in order.
On June 18, 1958,(9) the Committee of the Whole was
considering H.R. 12858. When the paragraph dealing with ``general
investigations'' was read, an amendment and a substitute therefor were
offered.
---------------------------------------------------------------------------
9. 104 Cong. Rec. 11641-43, 85th Cong. 2d Sess.
---------------------------------------------------------------------------
General Investigations
For expenses necessary for the collection and study of basic
information pertaining to river and harbor, flood control, shore
protection, and related projects, and when authorized by law,
preliminary examinations, surveys and studies (including
cooperative beach erosion studies as authorized in Public Law No.
520, 71st Cong., approved July 3, 1930, as amended and
supplemented), of projects prior to authorization for construction,
to remain available until expended, $8,473,500: Provided, That, no
part of the funds herein appropriated shall be used for the survey
of Carter Lake, Iowa, until it is authorized.
Mr. [Clarence] Cannon [of Missouri]: Mr. Chairman, I offer an
amendment.
The Clerk read as follows:
Amendment offered by Mr. Cannon. On page 3, line 19, strike
out ``$8,473,500'' and insert ``$8,613,500.''. . .
Mr. [John] Taber [of New York]: Mr. Chairman, a parliamentary
inquiry.
The Chairman: (10) The gentleman will state his
parliamentary inquiry.
---------------------------------------------------------------------------
10. Hale Boggs (La.).
---------------------------------------------------------------------------
Mr. Taber: Mr. Chairman, there is nothing in this language
which indicates which projects it is for or whether or not they are
authorized by law. It seems to me we ought to have that before the
item is reached for a vote so a point of order should be made, if
they are not authorized.
The Chairman: The gentleman from Missouri has been recognized
and it is presumed that the gentleman will make his explanation in
support of his amendment.
Mr. Taber: Mr. Chairman, I reserve a point of order against the
amendment. . . .
[[Page 5387]]
Mr. Cannon: Mr. Chairman, as the gentleman is doubtless aware,
this is an item from a supplemental budget just received from the
Bureau of the Budget. It puts into the bill $140,000 under Public
Law 303. That was approved, as you will recall, last September. It
gives the title to certain land to the Territory of Alaska, and
provides that the Territory may dispose of it; the Territory cannot
dispose of the land until certain matters have been established as
to the seaward limit of the land. This merely permits the
Government engineers to establish the seaward limit of the lands,
and thereby makes it possible for the Territory of Alaska to go
ahead with the transfer of these tracts.
With respect to the money in this paragraph it is all for
authorized surveys with the single exception of this Carter Lake in
Iowa. Of course, if the gentleman wants to insist on the point of
order, we can let it go out and offer it later without that
provision.
Mr. Taber: It is subject to a point of order?
Mr. Cannon: Only the language, ``to remain available until
expended.'' Does the gentleman insist on his point of order?
Mr. Taber: No; not for that.
The Chairman: Does the gentleman from New York withdraw his
point of order?
Mr. Taber: Yes, Mr. Chairman. . . .
Mr. [Robert] Hale [of Maine]: Mr. Chairman, I offer a
substitute amendment.
The Chairman: The Clerk will read the amendment.
The Clerk read as follows:
Amendment offered by Mr. Hale as a substitute for the
amendment offered by Mr. Cannon: On page 3, line 19, strike out
``$8,473,500'' and insert in lieu thereof ``$8,498,400.''
Mr. Taber: Mr. Chairman, I reserve a point of order.
The Chairman: The gentleman from Maine [Mr. Hale] is recognized
on his amendment.
Mr. Hale: Mr. Chairman, I offer this amendment for the purpose
of including in the bill $25,000 for a study of the situation in
Portland Harbor. The purpose of the study would be to determine the
advisability of deepening the harbor channel and anchorage to 45
feet to allow the accommodation of deep-draft tankers. The study
has been approved by the Chief of Engineers and authorized by the
House Public Works Committee. It was authorized too late, however,
to be included in the fiscal 1959 budget.
I would like to remind you that the Committee on Appropriations
has added 26 similar unbudgeted surveys to the 1959 public works
appropriation bill. One of them, I am informed, has not yet been
authorized. I do not know the criteria used by the committee in
selecting these 26 particular unbudgeted surveys. I am sure the
studies are completely justified. But I do not understand why the
authorized Portland Harbor study was not also included. . . .
Mr. Taber: Mr. Chairman, I make a point of order against the
amendment because it provides for items that are not authorized by
law. . . .
The Chairman: The gentleman from Maine is recognized to respond
to the point of order that the gentleman from New York has made.
Mr. Hale: My understanding is that the study was approved by
the Corps
[[Page 5388]]
of Engineers and authorized by the House Committee on Public Works.
The Chairman: Will the gentleman cite the statute which
authorizes the appropriation?
Mr. Hale: I cannot do that at this time.
The Chairman: The Chair is prepared to rule.
Mr. [Robert E.] Jones [Jr.] of Alabama: Mr. Chairman, I would
like to argue the point of order, if the Chair would withhold his
ruling.
The Chairman: The Chair will withhold his ruling.
Mr. Jones of Alabama: Mr. Chairman, the general provisions
contained in this appropriation bill have to do with projects that
are to be surveyed by the Corps of Engineers. Under the Flood
Control Acts of 1928 and 1944 there is general authority for the
Corps of Engineers to carry out studies of flood control,
navigation, and other water related projects for which there is
authority under existing law. Now, the gentleman from Maine offers
an amendment to the amendment that authorizes the increase of
$8,475,000 by some $25,000. The amendment offered by the gentleman
from Maine only identifies the project for which there is an
increased authorization. Now, I submit to the Chair that there is
no need for identity of the project contained in the amendment.
Now, of the $8 million already contained in this bill, it
authorizes numerous works to be surveyed by the Corps of Engineers,
some of which are not authorized by law and the identity of which
would have to be brought forward by the Committee on
Appropriations. But, that is a principle that we do not recognize
nor have we insisted upon in the past.
Mr. Chairman, I submit further, notwithstanding the fact that
the amendment goes to the identity of the project already contained
in law, as I have pointed out to the Chair, it is an authorized
project for survey heretofore enacted by the House Public Works
Committee.
The Chairman: I wonder if the gentleman from Alabama could cite
the specific authorization for the funds that the gentleman from
Maine seeks to include?
Mr. Jones of Alabama: I will say to the Chair that my chief
argument was made under general authorization which empowers the
Corps of Engineers to carry out surveys on general appropriations
for survey purposes. I did not rest my argument particularly upon
the amendment identifying the Portland Harbor project, because that
is in the inherent authority contained in existing law for the
Corps of Engineers to execute surveys of projects without those
projects being identified in an appropriation bill. If the point of
order is sustained, then a point of order would lie against the
entire amount, because it fails to identify the project to be
surveyed, as to whether or not those projects have been authorized
by law.
The Chairman: Of course, the gentleman from Maine has based his
argument, as the Chair understood it, on the bill which passed the
House today and which has not been acted upon by the other body or
signed by the President. . . .
Mr. [Frank E.] Smith of Mississippi: Mr. Chairman, the point of
order
[[Page 5389]]
against the gentleman's amendment should not lie. Apparently the
gentleman from New York made his point of order on the basis that
his thought was that this survey was authorized in the bill which
the House passed an hour or so ago. That survey was not included in
that bill. The survey, as pointed out by the gentleman from Iowa
[Mr. Jensen] was authorized under a resolution approved by the
House Committee on Public Works something over a year ago. Under
the law, the approval by the Committee on Public Works of a study
previously authorized under the law some years before is fully
entitled to appropriation if the Congress decides to appropriate
the money.
The Chairman: The reasoning of the gentleman from Mississippi
[Mr. Smith] impressed the Chair. The Chair was prepared to rule on
the basis of the statement made by the gentleman from Maine [Mr.
Hale] that he was relying upon the action taken by the House
earlier this afternoon, which obviously was not an authorization in
light of the fact that that is an action by this body, but the
other body has not acted and the President has not signed it. But
the argument advanced by the gentleman from Mississippi impresses
the Chair and the point of order is overruled.
Parliamentarian's Note: The rulings in this section and the three
sections immediately following should be distinguished from rulings, as
in Sec. 47.4, infra, to the effect that an appropriation will not be
permitted which is conditioned on a future authorization. The rulings
in Sec. Sec. 7.11-7.13, infra, establish that, where lump sums are
involved, language which limits use of an appropriation to projects
``authorized by law'' or which permits expenditures ``within the limits
of the amount now or hereafter authorized to be appropriated,'' is
proper. The Chair in such cases is guided in his ruling by the express
language of the bill, and not, for example, by indications in the
committee report that certain unauthorized projects may be contemplated
by the bill's provisions. The project, to be within the purview of the
language in question, must have been authorized by law already enacted
prior to the bill. Once the project itself has been authorized,
Congress can change the limits of expenditure, thereby affecting
subsequent expenditures pursuant to the provisions of the
appropriation. It should be noted that this result is not an extension
of the rule permitting appropriations, without authorization, for
``works in progress,'' because the language under consideration in Sec.
7.11-7.13, infra, relates specifically to expenditures ``authorized in
law.''
Sec. 7.11 A point of order was held not to lie against an amendment
proposing to increase a lump-sum appro
[[Page 5390]]
priation for river and harbor projects where language in the bill
limited use of the lump-sum appropriation to ``projects authorized
by law.''
On June 19, 1958,(11) the Committee of the Whole was
considering H.R. 12858. At one point the Clerk read as follows, and
proceedings ensued as indicated below:
---------------------------------------------------------------------------
11. 104 Cong. Rec. 11766, 11767, 85th Cong. 2d Sess. See also 105 Cong.
Rec. 10061, 86th Cong. 1st Sess., June 5, 1959.
See the note in Sec. 7.10, supra, for further discussion.
---------------------------------------------------------------------------
Amendment offered by Mr. [Frank J.] Becker [of New York]: On
page 4, line 8, after ``expended'', strike out '$577,085,500' and
insert ``$578,455,500.''. . .
Mr. (John) Taber [of New York]: Mr. Chairman, I make the point
of order against this amendment on the ground that it is
legislation on an appropriation bill. It appears to be for three
projects which have not been authorized by law although a bill did
pass the House. Frankly, I do not like the situation where I am
obliged to make this point of order, but I feel that I would not be
conscientious in the performance of my duty if I did not do so.
The Chairman: (12) Does the gentleman from New York
[Mr. Becker] desire to be heard on the point of order?
---------------------------------------------------------------------------
12. Wilbur D. Mills (Ark.).
---------------------------------------------------------------------------
Mr. Becker: Yes, Mr. Chairman. My understanding in trying to
evaluate the various points of order in the last 2 days is that it
is possible to increase the sum, that is, it is possible to
increase the total sum of the appropriation if I do not include any
specific authorization. I have not offered any authorization here
or legislation on this bill. I am merely increasing the amount and
the total sum of the appropriation in order that there will be a
sum of money and in order that these three projects can be
initiated. I hope the Chairman will overrule the point of order. .
. .
The Chairman: The gentleman from New York [Mr. Becker] offers
an amendment, on page 4, line 8, to which the gentleman from New
York [Mr. Taber] raises a point of order.
The Chair has had an opportunity to examine the amendment and
to review the ruling of the Chair on yesterday with respect to the
language in the bill to which these figures on line 8, page 4,
apply. The Chair will point out, as did the Chair on yesterday,
that the language to which these figures apply is very specific in
that the moneys are to be spent on projects authorized by law. So
it would appear to the Chair that the amendment offered by the
gentleman from New York [Mr. Becker] raising the amount of the
appropriation would be in order.
The Chair therefore overrules the point of order.
Sec. 7.12 Language in an appropriation bill providing funds for the
construction of public works and specifying that none of the funds
appropriated should be used for projects not authorized by
[[Page 5391]]
law ``or which are authorized by a law limiting the amount to be
appropriated therefor, except as may be within the limits of the
amount now or hereafter authorized to be appropriated'' was held to
limit expenditures to authorized projects and a point of order
against the language as legislation was overruled.
On May 24, 1960,(13) the Committee of the Whole was
considering H.R. 12326. At one point the Clerk read as follows:
---------------------------------------------------------------------------
13. 106 Cong. Rec. 10979, 10980, 86th Cong. 2d Sess.
---------------------------------------------------------------------------
Construction, General
For the prosecution of river and harbor, flood control, shore
protection, and related projects authorized by law; detailed
studies, and plans and specifications, of projects (including those
for development with participation or under consideration for
participation by States, local governments, or private groups)
authorized or made eligible for selection by law (but such studies
shall not constitute a commitment of the Government to
construction); and not to exceed $1,400,000 for transfer to the
Secretary of the Interior for conservation of fish and wildlife as
authorized by law; $662,622,300, to remain available until
expended: Provided, That no part of this appropriation shall be
used for projects not authorized by law or which are authorized by
a law limiting the amount to be appropriated therefor, except as
may be within the limits of the amount now or hereafter authorized
to be appropriated. . . .
Mr. [H. R.] Gross [of Iowa]: Mr. Chairman, I make the point of
order against the language to be found on page 4, beginning on line
18 and into line 21, ``or which are authorized by a law limiting
the amount to be appropriated therefor, except as may be within the
limits of the amount now or hereafter authorized to be
appropriated.''
Mr. Chairman, I make the point of order against that language
on the ground that it is legislation on an appropriation bill. I
make the further point of order that this is authorizing
appropriations for projects not authorized by law. . . .
The Chairman: (14) The Chair is prepared to rule.
---------------------------------------------------------------------------
14. Hale Boggs (La.).
---------------------------------------------------------------------------
It so happens that almost an identical point of order to an
identical paragraph was raised on June 18, 1958,(15) by
the gentleman from New York [Mr. Taber]. It also happens that the
present occupant of the chair was in the chair at that time. The
Chair ruled then that the language was specific, that there was no
question about its referring to the controlling phrase ``authorized
by law,'' and none of the appropriation can be expended unless
authorized by law.
---------------------------------------------------------------------------
15. See the ruling at Sec. 7.10, supra. For further discussion, see the
Parliamentarian's Note in Sec. 7.10.
---------------------------------------------------------------------------
The Chair overrules the point of order and sustains the ruling
made on June 18, 1958.
Sec. 7.13 Where a lump-sum appropriation is prefaced by
[[Page 5392]]
language limiting expenditure thereof to projects ``authorized by
or pursuant to law,'' a point of order against the total figure,
based on a general allegation that a portion thereof may be
unauthorized, will not lie.
On May 21, 1969,(16) during consideration in the
Committee of the Whole of a supplemental appropriation bill for fiscal
1969 (H.R. 11400), Mr. H. R. Gross, of Iowa, raised a point of order
against a provision in the bill:
---------------------------------------------------------------------------
16. 115 Cong. Rec. 13267, 13268, 91st Cong. 1st Sess. For further
discussion, see the Parliamentarian's Note at Sec. 7.10, supra.
---------------------------------------------------------------------------
House of Representatives
compensation of members
Compensation of Members, $1,975,- 000;
salaries, officers, and employees
``Office of the Speaker'', $4,015; . . .
Mr. Gross: Mr. Chairman, I make a point of order against the
language on page 23, lines 12, 13, and 14, on the ground that, as
admitted by the committee, this contains moneys to be appropriated
that have not been authorized by Congress. . . .
The Chairman: (17) Does the gentleman from Texas
desire to be heard on the point of order?
---------------------------------------------------------------------------
17. Chet Holifield (Calif.).
---------------------------------------------------------------------------
Mr. [George H.] Mahon [of Texas]: Mr. Chairman, the gentleman,
I believe, does not seek to reduce funds for the Office of the
Speaker, as shown on line 14. The gentleman is, I believe, only
referring to the pay increase for the Speaker and other Members--
the item on line 12.
Mr. Gross: Very frankly, I do not know which one of these line
items contains all the funds, so I am just trying to take as much
as I can to be sure I get the funds covered. If the gentleman will
tell me what line they are in I will amend my point of order, with
the permission of the Chair.
Mr. Mahon: The funds which have not been authorized are
included in line 12, in the $1,975,000 figure.
Mr. Gross: Those are the only funds that have not been
authorized?
Mr. Mahon: Yes; that is the figure involved. A small portion of
that has not been authorized.
The Chairman: Will the gentleman from Texas yield for a
clarifying question on the part of the Chair? As the Chair reads
this language it says, ``for increased pay costs authorized by or
pursuant to law.'' If the Chair understands language, this refers
to a cost already authorized by and pursuant to law that is now in
existence. Is that true?
Mr. Mahon: The Chair is correct. . . .
The $19,835 included in line 12 has not been authorized. That
is correct.
Mr. Gross: You mean the $1,975,000?
Mr. Mahon: No; $19,835 has not been authorized. But it cannot
be paid unless it is authorized. Otherwise, it would revert unused
to the Treasury.
The Chairman: The Chair again is confused. The Chair sees no
reference
[[Page 5393]]
to a figure of $19,835 in the bill or in the language referred to
here.
Mr. Mahon: It is part of the figure of $1,975,000.
The Chairman: Does the gentleman from Texas state to the Chair
that of the amount of $1,975,000 there is $19,835 that is not
authorized?
Mr. Mahon: $19,835.
The Chairman: The Chair is still in a quandary because the
language in line 7 says, ``for increased pay costs authorized by or
pursuant to law.''
Mr. Mahon: Mr. Chairman, all compensation due by law to Members
of Congress is authorized. If it is not authorized, it cannot be
paid.
The Chairman: Yes. . . .
The Chair is constrained to hold that the gentleman's point of
order is not well taken, because the money amount in line 12 cannot
be used for any other purpose than increased pay costs authorized
by or pursuant to law. Therefore, the gentleman's point of order is
overruled.
Appropriations Not Exceeding Authorized Limit
Sec. 7.14 Where a statute authorizes the acquisition of land and
construction of buildings within a lump-sum limitation on cost,
subsequent appropriations for the construction of buildings under
such authorization may not cumulatively exceed the limit of cost
fixed in the authorizing act.
On Jan. 20 and 23, 1939,(18) the Committee of the Whole
was considering H.R. 2868, a deficiency appropriation bill. The Clerk
read as follows, and proceedings ensued as indicated below:
---------------------------------------------------------------------------
18. 84 Cong. Rec. 592, 592, 641-643, 76th Cong. 1st Sess.
---------------------------------------------------------------------------
Treasury Department
procurement division, public building branch
Bureau of the Census Building, Department of Commerce,
Washington, D.C.: For the acquisition of the necessary land and the
construction of a building for the Bureau of the Census of the
Department of Commerce under the provisions of the Public Buildings
Act approved May 25, 1926 (44 Stat. 630), as amended, including the
extension of steam and water mains, removal or diversion of such
sewers and utilities as may be necessary, and for administrative
expenses in connection therewith, $3,500,000.
Mr. [John] Taber [of New York]: Mr. Chairman, I make a point of
order against the paragraph just read on the ground it is not
authorized by law.
The Chairman: (19) The Chair is ready to rule.
---------------------------------------------------------------------------
19. Wall Doxey (Miss.).
---------------------------------------------------------------------------
When this point of order was raised on Friday last, the Chair
was in some doubt as to whether the appropriation in the pending
paragraph was authorized under existing law. The citation to the
act of May 25, 1926, contained in the paragraph, seemed to place a
limitation upon the amount of money that could be appropriated for
the construc
[[Page 5394]]
tion of buildings within the District of Columbia. Since last
Friday the Chair has had an opportunity of looking into the laws
authorizing construction within the District of Columbia. The Chair
has found that the act of May 25, 1926, has been amended on two
specific occasions--first by the act of January 13, 1928 (45 Stat.
52), and, second, by the act of March 31, 1930 (46 Stat. 136).
These amendatory acts have increased the authorization for the
District of Columbia to $150,000,000 for the construction of
buildings and $40,000,000 for the acquisition of lands for such
buildings.
The gentleman from Virginia [Mr. Woodrum] has submitted for the
inspection of the Chair a letter addressed to him over the
signature of the Director of Procurement of the Treasury
Department. The Chair finds in that communication--and of course,
the Chair must rely upon the statement of an officer of the
Government over his signature--that of the $150,000,000 authorized
by construction in the District of Columbia $142,773,092.08 has
already been authorized, thus leaving of the original authorization
a sum of $7,226,908 for future appropriations. Of the $40,000,000
authorized for the acquisition of land there remains unallocated
and unappropriated the sum of $11,320,000. It is manifest,
therefore, that under the acts heretofore referred to by the Chair
there is sufficient authorization within the limit of cost set in
those acts for an appropriation of $3,500,000 for the construction
of a Census Building. The Chair desires also to point out that the
Director of Procurement in his letter to Mr. Woodrum specifically
states that the erection of the new Census Building is within the
area defined in the authorization acts.
The question has also been raised as to whether the
construction of public buildings in the District of Columbia under
allotments by the Public Works Administration should be chargeable
against a limitation of $150,000,000 set by the Public Buildings
Act of 1926, as amended. The Chair has examined carefully title 2
of the National Industrial Recovery Act, section 12 of the
Emergency Relief Appropriation Act of 1935, and section 201 of the
Public Works Administration Extension Act of 1937. These acts
contained no reference to the Public Buildings Act of May 25, 1926,
as amended, and did not otherwise limit the amount expendable for
projects in the District of Columbia as authorized by the Public
Buildings Act. It seems to the Chair, therefore, that the moneys
used under the Public Works Administration for the construction of
buildings in the District of Columbia should not be chargeable to
the total amount authorized for projects in the District of
Columbia under the Public Buildings Act, as amended. The Chair is
fortified in this opinion by the fact that the Director of
Procurement of the Treasury Department has placed a like
construction upon this proposition.
For these reasons the Chair is of the opinion that the
appropriation herein provided is within the authorization set by
Congress, and, therefore, conforms with the rules of the House. The
Chair, therefore, overrules the point of order.
Incidental Expenses to Authorized Functions of Government
Sec. 7.15 An amendment proposing appropriations for in
[[Page 5395]]
cidental expenses which contribute to the main purpose of carrying
out the functions of the department for which funds are being
provided in the bill is generally held to be authorized by law.
On Mar. 1, 1938,(20) the Committee of the Whole was
considering H.R. 9621, an Interior Department appropriation. At one
point the Clerk read as follows and proceedings ensued as indicated
below:
---------------------------------------------------------------------------
20. 83 Cong. Rec. 2655, 2656, 75th Cong. 3d Sess.
---------------------------------------------------------------------------
Amendment offered by Mr. [James G.] Scrugham [of Nevada]: Page
72, beginning with line 12, insert the following:
``Administrative provisions and limitations: For all
expenditures authorized by the act of June 17, 1902, and acts
amendatory thereof or supplementary thereto, known as the
reclamation law, and all other acts under which expenditures from
said fund are authorized, including not to exceed $100,000 for
personal services and $15,000 for other expenses in the office of
the chief engineer, $20,000 for telegraph, telephone, and other
communication service, $5,000 for photographing and making
photographic prints, $41,250 for personal services, and $7,500 for
other expenses in the field legal offices; examination of estimates
for appropriations in the field; refunds of overcollections and
deposits for other purposes; not to exceed $15,000 for
lithographing, engraving, printing, and binding; purchase of ice;
purchase of rubber boots for official use by employees; maintenance
and operation of horse-drawn and motor-propelled passenger
vehicles; not to exceed $20,000 for purchase and exchange of horse-
drawn and motor-propelled passenger-carrying vehicles; packing,
crating, and transportation (including drayage) of personal effects
of employees upon permanent change of station, under regulations to
be prescribed by the Secretary of the Interior; payment of damages
caused to the owners of lands or other private property of any kind
by reason of the operations of the United States, its officers or
employees, in the survey, construction, operation, or maintenance
of irrigation works, payment for officials telephone service in the
field hereafter incurred in case of official telephones installed
in private houses when authorized under regulations established by
the Secretary of the Interior; not to exceed $1,000 for expenses,
except membership fees, of attendance, when authorized by the
Secretary, upon meetings of technical and professional societies
required in connection with official work of the Bureau; payment of
rewards, when specifically authorized by the Secretary of the
Interior, for information leading to the apprehension and
conviction of persons found guilty of the theft, damage, or
destruction of public property. . . .''
Mr. [John] Taber [of New York]: Mr. Chairman, I make the point
of order against the amendment upon the ground that it is
legislation upon an appropriation bill, that it includes items not
authorized by law, as, for instance, $5,000 for making photographic
prints, not authorized by law in line 20
[[Page 5396]]
and in line 22, provision for examination of estimates for
appropriations in the field, which is not authorized by law;
$15,000 for lithographing and engraving, not authorized by law; the
purchase of ice, the purchase of rubber boots for official use by
employees, not authorized by law.
The Chairman: (1) The Chair is ready to rule. This
amendment provides for all expenditures authorized by the act of
June 17, 1902, and acts amendatory thereof or supplementary
thereto, known as the reclamation law, and all other acts under
which expenditures from said fund are authorized, and so forth. The
Chair thinks that the items to which the gentleman from New York
objects specifically are incidental to the main purpose of carrying
out the reclamation law. These incidental items it seems to the
Chair are necessary to carry out the major purposes of the
reclamation law, and the Chair, therefore, overrules the point of
order.
---------------------------------------------------------------------------
1. Marvin Jones (Tex.).
---------------------------------------------------------------------------
Language of Limitation as Constituting New Authority
Sec. 7.16 Language in an appropriation bill providing that ``not to
exceed $2,500 of the funds available . . . for salaries and
expenses . . . shall be available for . . . entertainment when
authorized by the Secretary,'' was held to be legislation and not
in order.
On Apr. 3, 1957,(2) during consideration in the
Committee of the Whole of the Departments of Labor and Health,
Education, and Welfare appropriation bill (H.R. 6287), a point of order
was raised against the following provision:
---------------------------------------------------------------------------
2. 103 Cong. Rec. 5040, 85th Cong. 1st Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
Sec. 208. Not to exceed $2,500 of the funds available to
the Department for salaries and expenses and not otherwise
available for entertainment of officials of other countries or
officials of international organizations shall be available for
such entertainment when authorized by the Secretary.
Mr. [Edgar W.] Hiestand [of California]: Mr. Chairman, I make a
point of order against this paragraph, that it is legislation on an
appropriation bill.
The Chairman: (3) The gentleman makes his point of
order against the entire section?
---------------------------------------------------------------------------
3. Aime J. Forand (R.I.).
---------------------------------------------------------------------------
Mr. Hiestand: Section 208, lines 5 to 9, inclusive.
The Chairman: Does the gentleman from Rhode Island care to
comment on this point of order?
Mr. [John E.] Fogarty [of Rhode Island]: Mr. Chairman, I must
concede the point of order. The purpose of this paragraph is to
entertain some of these foreign doctors and scientists who come
over here, to reciprocate the entertainment that our people receive
when they go over there. If the gentleman wants to strike it out,
that is his privilege.
The Chairman: Does the gentleman insist on the point of order?
Mr. Hiestand: Mr. Chairman, I do.
The Chairman: The Chair sustains the point of order.
[[Page 5397]]
CHAPTER 26
Unauthorized Appropriations; Legislation on Appropriation Bills
B. APPROPRIATIONS FOR UNAUTHORIZED PURPOSES
Sec. 8. Works in Progress
Rule XXI clause 2(a),(4) in part prohibits, in general
appropriation bills, appropriations for expenditures not previously
authorized by law, except to continue appropriations for public works
and objects which are already in progress. The phrase refers to
tangible works and objects like buildings and roads; it does not
contemplate continuance of an indefinite or intangible
work.(5) This exception should be compared with the similar
exception contained in clause (5) (now 6) Rule XXI discussed in Chapter
25, Sec. 3.16, supra, wherein reappropriations of unexpended balances
of appropriations have been prohibited on general appropriation bills
since 1946 except in connection with public works (not objects) on
which work has commenced.
---------------------------------------------------------------------------
4. House Rules and Manual Sec. 834 (1985). For discussion of the
distinction between appropriations allowed without
authorization for ``works in progress,'' and those
appropriations which are expressly limited to use for such
projects as are authorized by law, see the Parliamentarian's
Note at Sec. 7.10, supra, and see, generally, Sec. 7.10-7.13,
supra.
5. See 4 Hinds' Precedents Sec. Sec. 3714,
3715. -------------------
---------------------------------------------------------------------------
Work Already Commenced
Sec. 8.1 When the construction of a building for a public purpose has
been commenced and there is no limit of cost, further unauthorized
appropriations may be made under the exception for works in
progress.
On Apr. 27, 1945,(6) the Committee of the Whole was
considering H.R. 3024, an Interior Department appropriation. The Clerk
read as follows, and proceedings ensued as indicated below:
---------------------------------------------------------------------------
6. 91 Cong. Rec. 3911, 3912, 79th Cong. 1st Sess.
---------------------------------------------------------------------------
general fund, construction
For continuation of construction of the following projects in
not to exceed the following amounts to be immediately available,
and to be reimbursable under the reclamation law.
Mr. [Robert F.] Jones [of Ohio]: Mr. Chairman, a point of
order. . . . I make a point of order against the entire paragraph
because it is in violation of title 33 (sic), section 414, of the
code. . . .
I refer to the paragraph beginning on line 9 and concluding
with line 13, on page 59.
Mr. Chairman, the language of the statute (43 USC Sec. 414)
reads as follows:
Expenditures shall not be made for carrying out the
purposes of the reclamation law except out of appropriations
made annually therefor and there shall annually in the Budget
be submitted to Congress estimates of the amount of money
necessary to be expended for carrying
[[Page 5398]]
out any or all the purposes authorized by the reclamation law,
including the extension and completion of existing projects and
units thereof and the construction of new projects.
The portion (of the law) to which I call particular attention
is:
Annual appropriations made hereunder by Congress for such
purposes shall be paid out of the reclamation funds provided
for by the reclamation law.
This paragraph is legislation because it changes the positive
terms of the statute which I have just quoted.
Referring back to the beginning of the bill, it says:
Making appropriations for the Department of the Interior for
the fiscal year ending June 30, 1946, and for other purposes
Be it enacted, etc., That the following sums are
appropriated, out of any money in the Treasury not otherwise
appropriated, for the Department of the Interior for the fiscal
year ending June 30, 1946, namely.
This paragraph indicates and shows conclusively that the money
will come out of the funds of the Treasury as provided under the
terms of the bill. It is in violation of the positive terms of the
last sentence of section 414 and, therefore, is legislation on an
appropriation bill and subject to a point of order. . . .
Mr. Chairman, on page 21 of Cannon's Precedents it is stated:
In testing the applicability of the rule to a provision
under consideration it is necessary to determine, first: Is it
a general appropriation bill?
That question shall be asked. Then, if so, ``Is the expenditure
authorized by law?''
In this case there is legal authority for expending funds on
projects generally out of the general fund of the Treasury, and
therefore if the language objected to goes one iota beyond the
positive terms of section 414, it is legislation and should be
stricken out as such.
Mr. [Carl] Hinshaw [of California]: Mr. Chairman, I desire to
be heard on the point of order, if the Chair will permit. . . .
I desire to call attention to the language in lines 12 and 13,
page 59, where it says these amounts are to be reimbursable under
the reclamation law. I think it clearly set forth that this
category of improvement is under the Reclamation Act, and therefore
the point of order should not be sustained.
The Chairman: (7) . . . The gentleman from Ohio
invited the attention of the Chair to a certain provision of
Cannon's Procedure which was cited by him. The Chair would invite
the gentleman's attention to the fact that he stopped reading just
one line too soon, in that the next line following the citation
presented by the gentleman states:
---------------------------------------------------------------------------
7. Jere Cooper (Tenn.).
---------------------------------------------------------------------------
If not authorized by law is it for a continuation of work
in progress?
The Chair is assured by the gentleman from Oklahoma, the
chairman of the subcommittee in charge of the bill under
consideration, that the items sought to be stricken by the point of
order constitute work in progress.
The Chair would invite attention to the fact that it just
happens that the present occupant of the chair was presiding over
the Committee of the
[[Page 5399]]
Whole House on the state of the Union during the consideration of
the Interior Department appropriation bill on May 17, 1937, and was
called upon to rule upon a point of order to the same effect as the
point of order here presented. The Chair would invite attention to
the decision made on that date. It is to be remembered that if
construction for public purposes has been commenced, even though
original appropriation therefor was made without authorization of
law, yet the work being in actual progress, further appropriations
may be made under the principle of works in progress. . . .
The Chair is of the opinion that the paragraph to which
objection is here made really comes under the theory of works in
progress and, therefore, overrules the point of order.
Project Originally Unauthorized by Law
Sec. 8.2 If the construction of a project for public purposes has been
commenced, further appropriations therefor may be made under the
exception for works in progress, even though the original
appropriation for the project was unauthorized.
On May 17, 1937, an appropriation for the continuance of the
construction of the Central Valley project was held to be in order as a
``work in progress.'' The proceedings, which took place during
consideration of H.R. 6958, an Interior Department appropriation bill,
were as follows: (8)
---------------------------------------------------------------------------
8. 81 Cong. Rec. 4688, 4689, 75th Cong. 1st Sess.
---------------------------------------------------------------------------
Amendment offered by Mr. Scrugham: In line 20, page 81, insert
a new paragraph as follows:
Central Valley project, California, $12,500,000, together with
the unexpended balance of the appropriation for this project
contained in the First Deficiency Act, fiscal year 1936.''
Mr. [Cassius C.] Dowell [of Iowa]: Mr. Chairman, a point of
order. This is legislation on an appropriation bill, and there is
no authority for the appropriation.
May I call the attention of the Chair to the fact that there
has been no showing by the committee that there is any authority
for the appropriation in this paragraph. The conclusive proof of
that is that the proviso just stricken out on a point of order was
stricken out because it provided that there may be no authority for
this appropriation, and I insist that the paragraph that was
stricken out leaves the committee without any authority shown to
the Chair under the law for this appropriation.
The Chairman: (9) The Chair would be pleased to hear
the gentleman from California on the point of order.
---------------------------------------------------------------------------
9. Jere Cooper (Tenn.).
---------------------------------------------------------------------------
Mr. [Frank H.] Buck [of California]: Mr. Chairman, we have had
considerable discussion of various similar points of order. The
Chair has ruled several times on clause 2 of rule XXI of the House
rules. I invite the Chair's attention again to the language of the
clause:
[[Page 5400]]
No appropriation shall be reported . . . for any
expenditure not previously authorized by law unless in
continuation of appropriations for such public works and
objects as are already in progress.
I invite the Chair's attention to the fact that Central Valley
project was established as a public-works project by the President
under authority of the Emergency Relief Appropriation Act of 1935,
and I send to the desk for the attention of the Chair the order
establishing this as a public-works project. I call the Chair's
attention further to the fact that on the 2d day of December 1935
the President of the United States approved the feasibility order
which had been prepared and sent to him by the Secretary of the
Interior as required by law to establish this as a reclamation
project.
I call attention to the further fact that in the first
deficiency bill of 1936 there appeared a paragraph, ``Central
Valley project, California, for continuation, $6,900,000'', and so
forth; and this I send to the desk for the attention of the Chair.
In view of the ruling Friday on the Gila project, I also call
the Chair's attention to a letter received from Commissioner of
Reclamation Page, dated May 17, 1937, addressed to me. . . .
My Dear Mr. Buck: In reply to your request regarding the
status of work on the Central Valley project, I am providing
the following information concerning construction on this
project as of May 1, 1937. . . .
Of the $11,400,000 available for construction on May 1,
1937, a total of $1,069,069.48 actually had been expended in
construction and engineering work, and a total of $1,179,600
had been obligated or encumbered. Encumbrances placed since May
1, due to award of additional contracts, have increased the
total obligated funds by several hundred thousand dollars.
The construction work now is fully under way, with
virtually all the preliminary engineering completed. I feel
that the construction is being prosecuted vigorously and that
good progress has been and is being made.
Very truly yours,
John C. Page,
Commissioner.
Mr. Chairman, I submit that under the rulings of the Chair
during the consideration of this bill, and those of previous
Chairmen, and under the precedents of the House, that this
certainly establishes that this is a public work in progress
regardless of the previous authorization contained in the
deficiency bill of last year or the authorization under the
Emergency Relief Act. Therefore this appropriation is in order, and
the point of order should be overruled.
The Chairman: Does the gentleman from New York desire to be
heard on the point of order?
Mr. [John] Taber [of New York]: I do.
The Chairman: The Chair will be pleased to hear the gentleman.
Mr. Taber: Mr. Chairman, on this point I desire to call the
attention of the Chair to the hearings which were held on the 30th
day of March, pages 281 and 289, the latter reference especially.
It appears from page 281 that a large amount of money has been
spent upon the preliminary and exploratory work, but when you get
down to page 289 you get to the meat of this question. Down toward
the bottom of the page appears the following colloquy:
[[Page 5401]]
Mr. Rich. What has the money been spent for?
Mr. Page. The money has been spent for investigation and
preliminary work.
That is as of the 30th day of March. There cannot be any
question but that is the situation, for that is the evidence before
us. This, of course, is not under the reclamation law. This is a
proposition where funds were appropriated directly out of the
Federal Treasury.
The Chairman: The Chair is prepared to rule.
The gentleman from Iowa makes a point of order against the
amendment offered by the gentleman from Nevada on the ground that
the provisions sought to be included by the amendment seek to make
appropriations not authorized by law. The Chair desires again to
invite attention to clause 2 of rule XXI. . . .
The Chair further desires to invite attention to a precedent
appearing in section 1340 of Cannon's Precedents of the House,
volume 7, and read a part from that decision, as follows:
If the construction of a building, for instance, for a
public purpose has been commenced, even though originally
subject to the point of order, yet the work having commenced
and there being no limit of cost, further appropriations may be
made.
There has been presented to the Chair a letter from the
Commissioner of Reclamation, and the Chair desires to invite
attention to that letter in part as follows, the letter being under
date of May 17, 1937. In passing the Chair would comment that, as
shown by its date, the letter is subsequent to the date of the
hearings to which the gentleman from New York invited attention.
This letter is addressed to the gentleman from California [Mr.
Buck] and is as follows:
In reply to your request regarding the status of work on
the Central Valley project I am providing the following
information concerning construction on this project as of May
1, 1937.
On that date more than 8,000 feet of tunnels had been
excavated under contract and by Government forces, and more
than 18,000 feet of tunnel and calyx drill holes sunk under
contract and by Government forces on the Kennett (Sacramento
River Basin) and Friant (San Joaquin River Basin) divisions of
the project. The contracts under which this work was done were
still in force on May 1 and additional work now is in progress.
On May 1, a large concrete, steel-frame warehouse was under
construction and nearing completion on the Friant division
which includes Friant Dam and the Friant-Kern and Madera
Canals. . . .
The construction work now is fully under way, with
virtually all the preliminary engineering completed. . . .
The Chair, therefore, feels that sufficient evidence has been
presented to bring this appropriation in the pending amendment
within the principle of work in progress as provided for in clause
2 of rule XXI.
The point of order is overruled.
Reappropriation For Works in Progress
Sec. 8.3 Reappropriation of moneys allotted by the Public Works
Administration to several departments or agencies
[[Page 5402]]
to continue works in progress was held in order.
On May 13, 1941,(10) during consideration in the
Committee of the Whole of H.R. 4590, an Interior Department
appropriation, a point of order against language in the bill was
overruled as indicated below:
---------------------------------------------------------------------------
10. 87 Cong. Rec. 4011, 77th Cong. 1st Sess.
---------------------------------------------------------------------------
The Public Works Administration allotments made available to
the Department of the Interior, Bureau of Reclamation, pursuant to
the National Industrial Recovery Act of June 16, 1933, either by
direct allotments or by transfer of allotments originally made to
another department or agency, and the allocations made to the
Department of the Interior, Bureau of Reclamation, from the
appropriation contained in the Emergency Relief Appropriation Act
of 1935, the Emergency Relief Appropriation Act of 1937, and the
Public Works Administration Appropriation Act of 1938, shall remain
available for the purposes for which allotted during the fiscal
year 1942.
Mr. [Robert F.] Rich [of Pennsylvania]: Mr. Chairman, I make a
point of order against the language on page 8, from line 14 to line
25, inclusive, that it is legislation on an appropriation bill and
not authorized by law. . . .
Mr. [John] Taber [of New York]: This is not an item for the
continuance of projects, nor is it limited to that, but it is an
extension of acts which have or will have expired. Some of them
were given an extension a year ago in the appropriation bill that
was carried then. A further extension is clearly not authorized by
law. There is nothing in the exception to the rule like
continuation of a project that would apply to this particular
paragraph. It does not do that.
The Chairman: (11) The Chair is prepared to rule. .
. .
---------------------------------------------------------------------------
11. Jere Cooper (Tenn.).
---------------------------------------------------------------------------
The Chair has examined the language of this paragraph . . .
with sufficient care to determine that it appears to be exactly the
same language as is included in a paragraph of the Interior
Department appropriation bill which was considered on March 2,
1938. . . .
The Chair also invites attention to the fact that on page 705
of the hearings of the pending bill it is stated by the
Commissioner of the Bureau of Reclamation that the items here
covered constitute work in progress.
Therefore the Chair is constrained to overrule the point of
order.
Parliamentarian's Note: While beginning in 1946 reappropriations of
unexpended balances were prohibited in general appropriation bills,
Rule XXI clause 5 (now clause 6) specifically permitted
reappropriations of unexpended balances if in continuation of
appropriations for public works on which work has commenced. (See
Chapter 25, Sec. 3.16 supra for discussion of this issue.)
Reappropriation to Public Works Administration
Sec. 8.4 Language in an appropriation bill providing that
[[Page 5403]]
certain prior allocations or allotments made available to the
Bureau of Reclamation, either directly or by transfer of allotments
(reappropriations) from other agencies, should remain available
during fiscal 1939 for those purposes for which allotted, was held
in order under the exception for ``works in progress.''
On Mar. 2, 1938,(12) the Committee of the Whole was
considering H.R. 9621, an Interior Department appropriation. During
consideration of the bill, a point of order was overruled, as follows:
---------------------------------------------------------------------------
12. 83 Cong. Rec. 2706, 2707, 75th Cong. 3d Sess.
---------------------------------------------------------------------------
The Public Works Administration allotments made available to
the Department of the Interior, Bureau of Reclamation, pursuant to
the National Industrial Recovery Act of June 16, 1933, either by
direct allotments or by transfer of allotments originally made to
another Department or agency, and the allocations made to the
Department of the Interior, Bureau of Reclamation, from the
appropriation contained in the Emergency Relief Appropriation Act
of 1935 and the Emergency Relief Appropriation Act of 1937, shall
remain available for the purposes for which allotted during the
fiscal year 1939.
Mr. [John] Taber [of New York]: Mr. Chairman, I make the point
of order against the paragraph upon the ground that it is not
authorized by law. . . .
Mr. [James G.] Scrugham [of Nevada]: Mr. Chairman, the
unexpended balances proposed to be appropriated by this paragraph
are lawful projects which have qualified as being in order under
the rules of the House for one or more of the following reasons:
First. That they are for improvements of existing projects.
Second. That the work on them is in progress.
Third. That there has been a finding of feasibility by the
President, which automatically authorizes appropriations, as
provided by the reclamation law, title 43, sections 412, 413, and
414.
The Chairman: (13) The gentleman from Nevada states
that all of these projects are already under way and that this
paragraph simply reappropriates money already available.
---------------------------------------------------------------------------
13. Marvin Jones (Tex.).
---------------------------------------------------------------------------
Mr. Taber: These allotments have been made for all sorts of
projects not authorized by law, and yet the adoption of this
provision would authorize every project that has not yet been
authorized for which an allotment has been made.
The Chairman: The gentleman states that these projects are
already under way.
Mr. Taber: That would not authorize them.
The Chairman: It authorizes reappropriation of appropriations
heretofore made if the work is in progress. The Chair, therefore,
overrules the point of order.
[[Page 5404]]
Evidence Required to Show ``Works in Progress''
Sec. 8.5 In order to justify an appropriation for a construction
project under the exception for ``works in progress'' by
establishing that actual work has begun on the construction
project, the Chair may require some documentary evidence that
actual construction work has been begun.
On May 14, 1937,(14) during consideration in the
Committee of the Whole of H.R. 6958, an Interior Department
appropriation, a point of order was sustained as indicated below:
---------------------------------------------------------------------------
14. 81 Cong. Rec. 4607, 4608, 4610-12, 75th Cong. 1st Sess.
---------------------------------------------------------------------------
Gila project, Arizona, $1,250,000: Provided, That any right to
use of water from the Colorado River acquired for this project and
the use of the lands and structures for the diversion and storage
of the same shall be subject to and controlled by the Colorado
River Compact, as provided in section 8 of the Boulder Canyon
Project Act, approved December 21, 1928 (45 Stat. 1062), and
section 2 of the Rivers and Harbors Act of August 30, 1935 (49
Stat. 1040);
Mr. [Laurence] Lewis [of Colorado]: Mr. Chairman, I make a
point of order against the paragraph beginning on page 76, line 20,
down to the bottom of the page and continuing on down through and
including line 3, on page 77, on the ground that this item of
appropriation has not been authorized by law, and, further, that it
is contrary to law. No authorization has been enacted for this
item. . . .
The Chairman: (15) Permit the Chair to state to the
gentleman from Nevada that the Chair is familiar with the citation
to which the gentleman has called attention. The Chair is not
familiar with the actual situation existing with reference to this
project. What physical work has been started? What has been done?
This the Chair would like to know in order that the Chair may
determine whether the principle of work in progress applies to this
item. The Chair will appreciate the gentleman's addressing himself
to the Chair. . . .
---------------------------------------------------------------------------
15. Jere Cooper (Tenn.).
---------------------------------------------------------------------------
[After further discussion:] The Chair is prepared to rule.
The gentleman from Colorado (Mr. Lewis) makes a point of order
against the paragraph beginning in line 20 on page 76 and extending
through the remainder of the paragraph, on the ground that it is
legislation on an appropriation bill and on the further ground that
it is not authorized by existing law; and he advances the position
that it does not come within the principle of ``work in progress.''
The Chair invites attention to section 2 of rule XXI. . . .
The Chair is impressed with what appears to be the unmistakable
fact that there has been a general tendency to narrow the
application of the so-called principle of ``works in progress'' as
they relate to general appropriation bills. The Chair sought to
secure the
[[Page 5405]]
best information available as to the actual situation existing with
reference to this appropriation, and, with all due deference, the
Chair feels that he has not been presented with a sufficient type
of documentary evidence to clearly show the Chair that actual,
physical construction on this particular project has been begun. To
say the least, the Chair entertains some doubt in his mind as to
the actual status of the work on this project. In the absence of
evidence of that type, the Chair feels that this doubt should have
some degree of control in making a decision on a matter of this
importance.
The Chair also invites attention to the fact that the language
that was called to the attention of the gentleman from Nevada [Mr.
Scrugham] undoubtedly has some bearing upon the question as to
whether or not this is legislation on an appropriation bill,
especially the language carried in the proviso, which was recently
discussed with the gentleman from Nevada. The gentleman from Nevada
quite frankly replied to the inquiry of the Chair, that the purpose
of including this language was to force compliance with a certain
State compact.
Therefore, the Chair feels there could be no doubt that the
effect of the inclusion of this language would be that of
legislation on an appropriation bill.
Therefore, the Chair is constrained to hold that the proper
showing has not been made in the form of documentary evidence that
actual construction work has been begun on this particular project.
The Chair feels, under an interpretation of the rule and
application of the precedents, and especially in view of the
language appearing in the proviso, that the point of order made by
the gentleman from Colorado [Mr. Lewis] to this paragraph should be
sustained, and therefore sustains the point of order.
Sec. 8.6 The Chair, in determining whether an appropriation for a
project was permissible under the exception for public works in
progress, has accepted as documentary evidence a letter from an
executive officer charged with the duty of constructing such
project.
The proceedings of May 17, 1937, which took place during
consideration of H.R. 6958, an Interior Department appropriation, have
been discussed in a previous section.(16)
---------------------------------------------------------------------------
16. See Sec. 8.2, supra.
---------------------------------------------------------------------------
Sec. 8.7 News articles to the effect that soldiers were working on a
highway or on the way to construct a highway were held not to be
sufficient evidence that an appropriation was permissible under the
exception for ``works in progress.''
On Mar. 10, 1942,(17) the Committee of the Whole was
considering H.R. 6736, a War Department civil functions appropriation
[[Page 5406]]
bill. The Clerk read as follows, and proceedings ensued as indicated
below:
---------------------------------------------------------------------------
17. 88 Cong. Rec. 2223, 2224, 77th Cong. 2d Sess.
---------------------------------------------------------------------------
Amendment offered by Mr. [Francis H.] Case of South Dakota: On
page 4, after line 10, insert ``Alaskan Highway: For prosecuting
the construction of a connecting highway from the States to and
into Alaska, $5,000,000.''. . .
Mr. [John] Taber [of New York]: Mr. Chairman, I make the point
of order against the amendment that it is not authorized by law. .
. .
Mr. Case of South Dakota: In the first place, I doubt that it
requires an authorization for the Corps of Engineers to carry on
this work. . . .
Even if this project were one which required authorization by
law the rules of the House provide that where a project is under
construction and an appropriation is made for continuing
construction, the appropriation is in order and is not subject to a
point of order.
I call the Chair's attention to an Associated Press dispatch
that appeared throughout the country in the papers on March 7, in
which this statement was made:
An advance crew of American engineers is at Dawson Creek,
and dozens of freight cars carrying construction equipment are
expected to pass through Alberta in the next few weeks.
I also call attention to a statement on page 4 of the Official
Information Digest issued by the Office of Government Reports on
March 5, in which it is stated that War Secretary Stimson announced
that Engineer Corps troops were already on their way to work on
roads for this Alaskan highway. In other words, construction has
already begun.
The United Press this morning reported that 93 soldiers and
engineers had arrived from a fort at Cheyenne, Wyo., and were
already in Canada working on this highway. This highway is under
construction, and on this basis an amendment providing continuation
funds should be in order in this bill. . . .
The Chairman: (18) The Chair is ready to rule.
---------------------------------------------------------------------------
18. Alfred L. Bulwinkle (N.C.).
---------------------------------------------------------------------------
The mere fact that press reports show that certain groups are
in Alaska does not constitute in the mind of the Chair that there
is really a working performance going on in this project at all.
The Chair, therefore, sustains the point of order.
Mr. Case of South Dakota: Mr. Chairman, a parliamentary
inquiry.
The Chairman: The gentleman will state it.
Mr. Case of South Dakota: Did the Chair understand that I
quoted also from the Information Digest issued by the Office of
Government Reports?
The Chairman: The mere information does not constitute an
authorization, or does not show the work has actually begun, and is
in course of construction.
``Addition'' to Building
Sec. 8.8 An amendment to a general appropriation bill providing an
appropriation for the building of an addition to
[[Page 5407]]
the Indian sanitorium at Shawnee, Okla., was held to be an
appropriation for a public work in progress.
On Mar. 1, 1938,(19) the Committee of the Whole was
considering H.R. 9621, an Interior Department appropriation. During
consideration, a point of order against an amendment to the bill was
overruled as indicated below:
---------------------------------------------------------------------------
19. 83 Cong. Rec. 2650, 2651, 75th Cong. 3d Sess.
---------------------------------------------------------------------------
construction and repair
For the construction, repair, or rehabilitation of school,
agency, hospital, or other buildings and utilities, including the
purchase of land and the acquisition of easements or rights-of-way
when necessary, and including the purchase of furniture,
furnishings, and equipment, as follows:
Mr. [Lyle H.] Boren [of Oklahoma]: Mr. Chairman, I offer an
amendment.
The Clerk read as follows:
Amendment offered by Mr. Boren: Page 65, line 3, after the
colon, add: ``Shawnee, Okla., addition to Indian Sanitorium,
$150,000.''
Mr. [John] Taber [of New York]: Mr. Chairman, I reserve a point
of order against the amendment. Is there any legislation
authorizing this expenditure?
Mr. Boren: I am not familiar with any specific authorization.
Mr. Taber: Mr. Chairman, I make the point of order there is no
legislation authorizing this expenditure and therefore it is
legislation on an appropriation bill.
The Chairman: (20) Does the gentleman from Oklahoma
have anything to say on the point of order, or can the gentleman
refer to any statute authorizing the expenditure?
---------------------------------------------------------------------------
20. Marvin Jones (Tex.).
---------------------------------------------------------------------------
Mr. Boren: Not specifically. The foundation of this amendment
is based on the general law that permits extensions of these
hospitals and buildings.
The Chairman: May the Chair ask the gentleman from Oklahoma
whether the institution for which he offers this addition is a
going institution at the present time?
Mr. Boren: It is a going institution, and on page 55 of the
bill, Mr. Chairman, provision is made for operating the
institution.
The Chairman: Is other provision made in this bill for the
institution?
Mr. Boren: For the maintenance and operation; yes. This
amendment is for additional facilities.
The Chairman: Are there some buildings there at the present
time?
Mr. Boren: Yes; there are six or seven buildings there now and
the purpose of this amendment is to improve those buildings.
The Chairman: Is this for the purpose of constructing a new
building or for repairing a building already there?
Mr. Boren: It is an addition to the present building, providing
sleeping porches, sewer facilities, and so forth.
The Chairman: The point the Chair would like to have specific
information about is whether there is a sanitorium there at the
present time or is this a completely new building?
Mr. Boren: There is a sanitorium there at the present time, Mr.
Chair
[[Page 5408]]
man, and the intent of the amendment is to provide, in addition to
the present sanitorium, sleeping porches and sewer facilities, and
so forth, for the existing building.
The Chairman: The Chair would like to have the gentleman state
specifically whether this is an addition to an existing
building.(1) If that is the fact, it would make a
difference in the ruling of the Chair on the point of order.
---------------------------------------------------------------------------
1. See 4 Hinds' Precedents Sec. Sec. 3774, 3775, for further
discussion of additions to existing buildings as works in
progress.
---------------------------------------------------------------------------
Mr. Boren: That is the fact, Mr. Chairman, and the word
``building'' should be pluralized, because there are about seven
buildings there now.
The Chairman: The Chair overrules the point of order.
Statutory Requirement that Repairs Be Authorized
Sec. 8.9 Where existing law (40 USC Sec. 606) specifically prohibits
the making of an appropriation to construct or alter any public
building involving more than $500,000 unless approved by
resolutions adopted by House and Senate Committees on Public Works,
an appropriation in a general appropriation bill for public
building construction or renovation not previously authorized by
both committees is in violation of Rule XXI clause 2(a),
notwithstanding the ``work in progress'' exception stated in that
rule and readopted subsequent to enactment of 40 USC Sec. 606,
since the law specifically precludes the appropriation from being
made and the ``work in progress'' exception is only applicable
where there is no authorization in law.
On June 8, 1983,(2) paragraph of a general appropriation
bill containing funds for the General Services Administration for
construction of new buildings at two sites and repair of two existing
projects was conceded to be unauthorized and was ruled out on a point
of order, since the construction and repair had not been authorized by
the Committee on Public Works and Transportation as required by statute
for projects in excess of $500,000 (40 USC Sec. 606), and since the
public works in progress exception for unauthorized construction and
repair does not countervail a statute requiring specific authorization
before an appropriation can be made. The proceedings were as follows:
---------------------------------------------------------------------------
2. 129 Cong. Rec. ----, 98th Cong. 1st Sess.
---------------------------------------------------------------------------
Mr. [Robert A.] Young of Missouri: Mr. Chairman, I rise to make
a point
[[Page 5409]]
of order against four provisions found in title IV in which the
paragraph is entitled ``General Services Administration, Federal
Buildings Fund, Limitations on Availability of Revenue.''
The Chairman: (3) The gentleman from Missouri (Mr.
Young) is recognized on his point of order.
---------------------------------------------------------------------------
3. Gerry E. Studds (Mass.).
---------------------------------------------------------------------------
[The portion of the bill to which the point of order related
was as follows:
The revenues and collections deposited into the fund
pursuant to section 210(f) of the Federal Property and
Administrative Services Act of 1949, as amended (40 U.S.C.
490(f)), shall be available for necessary expenses of real
property management and related activities not otherwise
provided for, including operation, maintenance, and protection
of federally owned and leased buildings, rental of buildings in
the District of Columbia . . . repair and alteration of
federally owned buildings, including grounds, approaches and
appurtenances, care and safeguarding of sites, maintenance,
preservation, demolition, and equipment . . . preliminary
planning and design of projects by contract or otherwise;
construction of new buildings (including equipment for such
buildings); and payment of principal, interest, taxes, and any
other obligations for public buildings acquired by purchase
contract, in the aggregate amount of $2,023,143,000 of which
(1) not to exceed $132,510,000 shall remain available until
expended for construction of additional projects as authorized
by law at locations and at maximum construction improvement
costs (including funds for sites and expenses) as follows:
New Construction: . . .
Oregon: Portland, Bonneville Power Administration Federal
Building, $67,475,000.
Tennessee: Knoxville, Federal Building, $14,990,000. . . .
Provided further, That funds in the Federal Buildings Fund
for Repairs and Alterations shall, for prospectus projects, be
limited to the amount by project as follows, except each
project may be increased by an amount not to exceed 10 per
centum unless advance approval is obtained from the Committees
on Appropriations of the House and Senate for a greater amount:
. . .
New York: New York, Federal Office Building, 252 Seventh
Avenue, $579,000. . . .
Pennsylvania: Pittsburgh, Post Office, $8,974,000. . . .]
Mr. Young of Missouri: Mr. Chairman, specifically, on page 18,
lines 13 through 17 of the bill, H.R. 3191, under consideration,
there appears an appropriation in the amount of $67,475,000 for the
construction of the Bonneville Power Administration Federal
Building in Portland, Oreg., and $14,990,000 for the construction
of a Federal building in Knoxville, Tenn.
In addition, on page 20, lines 18 and 19, there appears an
appropriation in the amount of $579,000 for renovation of the
Federal Office Building at 252 Seventh Avenue in New York, N.Y.; as
well as on page 20, lines 23 and 24, there appears an appropriation
in the amount of $8,974,000 for the repair and alteration of the
post office in Pittsburgh, Pa.
These four appropriations appear to be in violation of rule
XXI, clause 2, of the rules of the House of Representatives. . . .
Mr. Chairman, section 7(a) of the Public Buildings Act of 1959,
as amended, 40 U.S.C. 606, states:
In order to insure the equitable distribution of public
buildings
[[Page 5410]]
throughout the United States with due regard for the
comparative urgency of need for such buildings, except as
provided in Section 4, no appropriation shall be made to
construct, alter, purchase, or to acquire any building to be
used as a public building which involves a total expenditure in
excess of $500,000 if such construction, alteration, purchase,
or acquisition has not been approved by resolutions adopted by
the Committee on Public Works of the Senate and House of
Representatives, respectively.
Mr. Chairman, the law is clear that prior to the appropriation
of funds for the construction or alteration of a public building
which cost shall exceed $500,000, a resolution must be reported by
your House Committee on Public Works and Transportation approving
such authorization. This action has not occurred to date. . . .
Mr. [Edward R.] Roybal [of California]: . . . It is my
understanding that the prospectuses for the construction that is in
the bill have not been approved; is that correct?
Mr. Young of Missouri: Mr. Chairman, they have not been
approved by our subcommittee nor by the full committee.
Mr. Roybal: Since they have not been approved by any of the
committees, I will concede the point of order, Mr. Chairman. . . .
The Chairman: The point of order is conceded and sustained.
CHAPTER 26
Unauthorized Appropriations; Legislation on Appropriation Bills
B. APPROPRIATIONS FOR UNAUTHORIZED PURPOSES
Sec. 9. Burden of Proof of Authorization
Burden on Proponent of Amendment
Sec. 9.1 The burden of proof is upon the proponent of an amendment to a
general appropriation to show that the appropriation therein is
authorized by law; and where the proponent was unable to cite a law
authorizing the appropriation, the Chair refused to look beyond the
absence of a statutory citation to determine whether a bill had
been unconstitutionally ``pocket vetoed''.
The above principle is well established. Thus, on May 11,
1971,(4) during consideration of H.R. 8190, a supplemental
appropriation bill, the following proceedings took place:
---------------------------------------------------------------------------
4. 117 Cong. Rec. 14471, 92d Cong. 1st Sess. See also 96 Cong. Rec.
7426, 7427, 81st Cong. 2d Sess., May 22, 1950; 81 Cong. Rec.
4684, 4685, 75th Cong. 1st Sess., May 17, 1937.
---------------------------------------------------------------------------
Mr. [Fred B.] Rooney of Pennsylvania: Mr. Chairman, I offer an
amendment.
The Clerk read as follows:
Amendment offered by Mr. Rooney of Pennsylvania: On page 8,
after line 15 insert:
[[Page 5411]]
``National Institutes of Health
``health manpower
``For an additional amount for ``Health Manpower,'
$25,000,000 to carry out programs in the family practice of
medicine, as authorized by the Family Practice of Medicine Act
of 1970 (S. 3418, 91st Congress), of which sums of not less
than $25,000 each shall be made immediately available for the
planning and/or development of Departments of Family Practice
at the Milton S. Hershey Medical Center of the Pennsylvania
State University, and at the University of North Carolina at
Chapel Hill, and at Harvard University and/or the Children's
Hospital Medical Center, and at such other eligible
institutions as may apply; funds appropriated by this provision
are directed to be expended and shall remain available for
obligation and expenditure until expended.''
Mr. [Robert H.] Michel [of Illinois]: Mr. Chairman, I make a
point of order against the language of the gentleman's amendment.
The Chairman: (5) The gentleman will state his point
of order.
---------------------------------------------------------------------------
5. Wayne N. Aspinall (Colo.).
---------------------------------------------------------------------------
Mr. Michel: Mr. Chairman, the language is out of order on the
grounds that we have no legislative authority whatsoever. There is
nothing in the code, nothing in the statutes, no legislative
authority whatsoever; and this is an appropriation bill. We cannot
be appropriating for anything that is not authorized, and therefore
it is clearly outside our realm of consideration here today.
Mr. Chairman, I simply make a point of order against the
language. . . .
Mr. Rooney of Pennsylvania: . . . I am sure all of us realize
what is involved in the amendment I have offered here today.
The point of order has been made that it is out of order and
that it is not germane. My contention is that it is germane. On
December 1, in the 91st Congress, we passed this bill in the House.
. . .
The bill was passed by the House on December 1 by a vote of 346
to 2. Two Members of Congress voted against the bill in the House.
The bill passed the Senate 64 to 1.
On December 14, the bill was sent to the White House for the
signature of the President. Subsequently, in accordance with a
concurrent resolution, the Senate adjourned to a date certain from
the close of business on Tuesday, December 22, 1970, until Monday,
December 28, 1970.
Mr. [H. R.] Gross [of Iowa]: Mr. Chairman, I must insist that
the gentleman is not addressing himself to the point of order.
Mr. Rooney of Pennsylvania: I am addressing myself to the point
of order.
The Chairman: The Chair would suggest that the gentleman is
trying to address himself to the point of order. The Chair is ready
to rule, and wants the gentleman from Pennsylvania to be as brief
as possible.
Mr. Rooney of Pennsylvania: Both bodies, the House and the
Senate, had given unanimous consent for designated officers to
receive messages from the President during the Christmas recess.
The President took advantage of our Christmas recess to veto
this legislation by a pocket veto.
Despite the fact that we were still in session, that we had
officers from the
[[Page 5412]]
House and the Senate standing by ready to receive any veto message,
he failed and refused to send it over, and instead he pocket vetoed
this bill.
Mr. [Frank T.] Bow [of Ohio]: Mr. Chairman, will the gentleman
yield?
Mr. Rooney of Pennsylvania: I am glad to yield to the gentleman
from Ohio.
Mr. Bow: Has the gentleman read the resolution of adjournment
of the House? There is nothing in there on the receiving of
messages or any papers from the President. It is a straight
adjournment.
Mr. Rooney of Pennsylvania: I believe if the gentleman will
look at the record he will find out that both Houses had officers
standing by to receive any message from the President, and this is
my contention.
Mr. Bow: The adjournment resolution does not contain any such
thing.
Mr. Rooney of Pennsylvania: It is my contention the President's
declaration of a pocket veto in this instance represented an
inappropriate use of such veto power.
In this session of Congress we are going to have 10 recesses,
and the President can take advantage of the same pocket veto abuse
of this legislation.
I maintain, Mr. Chairman, that this bill was enacted into law
on the 24th day of December, 1970.
The Chairman: The Chair is ready to rule.
The gentleman from Pennsylvania [Mr. Rooney] has offered an
amendment providing $25 million to implement the provisions of the
Family Practice of Medicine Act of 1970.
The gentleman from Illinois has raised a point of order against
the amendment on the ground that it provides for an expenditure
that is not authorized by law.
When the question of authorization is raised against an item in
or an amendment to an appropriation bill, it is incumbent upon the
committee reporting the bill or the proponent of the amendment to
cite the law permitting the appropriation. The proponent of the
amendment in this case has referred the Chair to the bill passed by
the other body on September 14, 1970, and passed by the House on
December 1, 1970. He has also outlined other legislative history
concerning the bill, including the fact that the bill was sent to
the President who saw fit to ``pocket veto'' the measure during the
Christmas adjournment of the Congress last year.
The Chair is not oblivious to the fact that certain questions
have been raised about the legal propriety of this veto. However,
the Chair cannot rule on this constitutional question. The Chair
may only refer to the statutes at large or the United States Code
to find the authorization required to support this appropriation.
Since no such statute can be cited, the Chair must sustain the
point of order.
Sec. 9.2 It is incumbent upon the proponent of an amendment to an
appropriation bill to cite authority in law for the proposed
appropriation when a point of order is made on the ground of lack
of such authority.
On May 7, 1957,(6) the Committee of the Whole was consid
[[Page 5413]]
ering H.R. 7221, a supplemental appropriation bill. The following
proceedings took place:
---------------------------------------------------------------------------
6. 103 Cong. Rec. 6430, 6431, 6446, 85th Cong. 1st Sess.
---------------------------------------------------------------------------
Mr. [Cleveland M.] Bailey [of West Virginia]: Mr. Chairman, I
offer an amendment.
The Clerk read as follows:
Amendment offered by Mr. Bailey: Page 4, line 5, strike out
``$25,000'' and insert ``$50,000. Of this amount the sum of
$25,000 is to be used to make necessary investigations abroad
to determine the wage levels, costs of production and working
conditions on articles imported from abroad to assist the
Commission in processing claims for injury by domestic
producers under section 7 of the Reciprocal Trade Agreements
Act.''. . .
Mr. [Prince H.] Preston [Jr., of Georgia]: Mr. Chairman, I make
a point of order against the amendment on the ground that there is
no authority for the Tariff Commission to make an investigation
abroad into the working conditions under which foreign commodities
are produced.
The Chairman: (7) Will the gentleman from West
Virginia cite to the Chair the authority for the Commission to make
an investigation? . . .
---------------------------------------------------------------------------
7. Frank N. Ikard (Tex.).
---------------------------------------------------------------------------
Mr. Bailey: I could not advise the Chairman to that effect.
But, I do not see why they should be limited to this country
because apparently nobody else is. If somebody wants some
information, they go abroad and get it. I think the Tariff
Commission should be afforded the same opportunity. Members of the
Congress, if you want to sit idly by and see the major part of your
small American industry, which is the backbone of our country,
driven out of business, you just ignore a proposition like this.
The Chairman: In view of the fact that there is no authority
cited for the Commission to make the investigations contemplated in
the amendment, the Chair sustains the point of order.
Parliamentarian's Note: After reading of the bill for amendment,
but prior to the rising of the Committee of the Whole, the proponent of
the amendment found authority in law for the proposed investigations
and, by unanimous consent, the amendment was offered again and
considered.(8)
---------------------------------------------------------------------------
8. 103 Cong. Rec. 6446, 85th Cong. 1st Sess., May 7, 1957.
---------------------------------------------------------------------------
Committee Has Burden of Showing Authorization for Item in Bill
Sec. 9.3 Language in a general appropriation bill appropriating $5
million for the emergency fund for the President was held
unauthorized by law, the Chair indicating that, in the absence of a
statement to the contrary, the statement that no legislative
authority existed for the proposed appropriation was dispositive of
the point of order.
On Jan. 24, 1946,(9) The Committee of the Whole was
consid
[[Page 5414]]
ering H.R. 5201, an independent offices appropriation. A point of order
was raised against the paragraph which follows:
---------------------------------------------------------------------------
9. 92 Cong. Rec. 355, 79th Cong. 2d Sess.
---------------------------------------------------------------------------
Emergency Fund for the President
Emergency fund for the President: Not to exceed $5,000,000 of
the appropriation ``Emergency fund for the President,'' contained
in the First Supplemental National Defense Appropriation Act, 1943,
as supplemented and amended, is hereby continued available until
June 30, 1947.
Mr. [Henry C.] Dworshak [of Idaho]: Mr. Chairman, I make a
point of order against the paragraph just read on the ground there
is no legislative authority for the appropriation proposed.
The Chairman: (10) Does the gentleman from Florida
desire to be heard on the point of order made by the gentleman from
Idaho?
---------------------------------------------------------------------------
10. William M. Whittington (Miss.).
---------------------------------------------------------------------------
Mr. [Joe] Hendricks [of Florida]: Mr. Chairman, I will leave
that to the discretion of the Chair.
The Chairman: The gentleman from Idaho [Mr. Dworshak] makes a
point of order against the paragraph on the ground that the
appropriation is not authorized by law. The Chair has stated to the
gentleman in charge of the bill, the gentleman from Florida [Mr.
Hendricks], that he would be glad to hear him. In the absence of
any statement to the contrary, the Chair is bound by the statement
of the gentleman from Idaho and, therefore, sustains the point of
order.
Burden on Managers of Bill
Sec. 9.4 The burden of proving the authorization for language carried
in an appropriation bill falls on the proponents and managers of
the bill; and where the lack of authorization is conceded in
response to a point of order that the language is legislation, the
Chair sustains the point of order.
On May 28, 1968,(11) the Committee of the Whole was
considering H.R. 17522, a bill appropriating for the Departments of
State, Justice, and Commerce. At one point the Clerk read as follows,
and proceedings ensued as indicated below:
---------------------------------------------------------------------------
11. 114 Cong. Rec. 15357, 15358, 90th Cong. 2d Sess.
---------------------------------------------------------------------------
Salaries of Supporting Personnel
For salaries of all officials and employees of the Federal
Judiciary, not otherwise specifically provided for, $43,500,000 . .
. Provided further, That without regard to the aforementioned
dollar limitations, each circuit judge may appoint an additional
law clerk at not to exceed grade (GS) 9.
Mr. [H. R.] Gross [of Iowa]: Mr. Chairman, I make a point of
order against the language on page 42, beginning on line 3, which
reads as follows:
Provided further, That without regard to the aforementioned
dollar limitations, each circuit judge may appoint an
additional law clerk at not to exceed (GS) 9.
Mr. Chairman, I make a point of order against this language on
the
[[Page 5415]]
ground that it is legislation on an appropriation bill. . . .
The Chairman: (12) Before the Chair rules on the
point of order, can the gentleman from New York cite to the Chair
the authority the gentleman says is already existing? . . .
---------------------------------------------------------------------------
12. Wayne L. Hayes (Ohio).
---------------------------------------------------------------------------
The Chair will state that if the additional clerk is authorized
somewhere in law, this would be a limitation upon the grade at
which the clerk would be appointed. What is sought to be found out
is whether there is existing legislation.
Mr. Gross: I point out, Mr. Chairman, ``without regard to the
aforementioned dollar limitations,'' and so on and so forth. It is
not a limitation.
Mr. [John J.] Rooney [of New York]: Mr. Chairman, I am sure
this is authorized. However, we will concede the point of order in
the interest of saving time and bringing it back to the House after
the conference. This does not affect the amount of money for these
law clerks.
The Chairman: In view of that statement, the Chair sustains the
point of order.
Burden on Committee on Appropriations
Sec. 9.5 The burden of proving that an item contained in a general
appropriation bill is authorized by law is on the Committee on
Appropriations, which must cite statutory authority for the
appropriation.
On June 15, 1973,(13) an appropriation for the Office of
Consumer Affairs, established by Executive order, was stricken from a
general appropriation bill when the Committee on Appropriations failed
to cite statutory authority in support of that item.
---------------------------------------------------------------------------
13. 119 Cong. Rec. 19855, 93d Cong. 1st Sess. See also 119 Cong. Rec.
38845, 93d Cong. 1st Sess., Nov. 30, 1973 (proceedings relating
to H.R. 11576, supplemental appropriations for fiscal 1974).
---------------------------------------------------------------------------
Chair Relies on Citations of Law Presented in Argument
Chair Reversed Ruling on Showing That Original Cited Authority Had Been
Superceded
Sec. 9.6 The Committee on Appropriations has the burden of proving the
authorization for an appropriation included in a general
appropriation bill, but the Chair may overrule a point of order
upon citation to an organic statute creating an agency, absent any
showing that such law has been amended or repealed to require
specific annual authorizations. The failure of Congress to enact
into law a specific authorization of appropriations for the Bureau
of the Mint for the fiscal year
[[Page 5416]]
in question was initially held not to render an appropriation for
that agency subject to a point of order, upon citation to the
organic law creating that agency and delegating its functions,
where it was not brought to the Chair's attention that the organic
law had subsequently been amended with the expressed legislative
intent of requiring annual authorizations (a decision subsequently
reversed by the Chair on his own initiative upon information that
organic law had been amended).
On June 8, 1983,(14) the Chair initially relied upon a
citation to the organic law creating the Bureau of the Mint, in order
to uphold an appropriation for that agency. Subsequently, reversing his
own ruling that the appropriation was authorized by a general statute
creating the office and delegating to it functions and
responsibilities, the Chair ruled that the appropriation for the Bureau
of the Mint was not authorized by law, where the organic statute
creating the Mint and implicitly authorizing the appropriation of funds
had been substantially amended and recodified with the stated
legislative purpose of requiring annual authorizations for the Bureau
of the Mint. The proceedings were as follows:
---------------------------------------------------------------------------
14. 129 Cong. Rec. ----, 98th Cong. 1st Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
Bureau of the Mint
salaries and expenses
For necessary expenses of the Bureau of the Mint:
$49,558,000.
Mr. [Frank] Annunzio [of Illinois]: Mr. Chairman, I make a
point of order that the appropriations for the Bureau of the Mint,
salaries and expenses, contained in title I are not authorized by
law. . . .
Mr. [Edward R.] Roybal [of California]: . . . The Bureau of the
Mint has been operating under one form or another since this
country was first founded. The Mint has been minting and issuing
coins pursuant to authority found in title 31 of the United States
Code. Section 251 of title 31 establishes the Bureau and I would
just like to read to the Chairman the first part of section 251. It
reads as follows:
There shall be established in the Treasury Department a
Bureau of the Mint embracing as an organization and under its
control all mints for the manufacture of coin and all assay
offices for the stamping of bars which has been or which may be
authorized by law.
Section 253 states:
The Director of the Mint shall have the general supervision
of all mints and assay offices and shall make an annual report
to the Secretary of the Treasury of their operations at the
close of each fiscal year,
[[Page 5417]]
and from time to time such additional reports setting forth the
operational conditions of such institutions as the Secretary
shall require, and shall lay before him the annual estimates
for their support; and the Secretary of the Treasury shall
appoint the number of clerks classified according to law
necessary to discharge the duties of said Bureau.
Mr. Chairman, I would like to point out that in addition to the
sections I have just read, sections 261 through 463 of title 31 set
forth in detail the duties of the Bureau of the Mint, and those
sections are replete with requirements that the mint must
accomplish certain acts.
I would like to cite Deschler's and Brown's Procedure of the
House, chapter 25, section 5.7, which states in part, as follows.
Section 5.7 reads as follows:
The failure of Congress to enact into law separate
legislation specifically authorizing appropriations for
existing programs does not necessarily render appropriations
for those programs subject to a point of order, where more
general existing law authorizes appropriations for such
programs. Thus, a paragraph in a general appropriation bill
purportedly containing some funds not yet specifically
authorized by separate legislation was held not to violate Rule
XXI clause 2, where it was shown that all of the funds in the
paragraph were authorized by more general provisions of law
currently applicable to the programs in question. . . .
The Chairman: (15) The Chair is prepared to rule.
---------------------------------------------------------------------------
15. Gerry E. Studds (Mass.).
---------------------------------------------------------------------------
The gentleman from Illinois makes the point of order that there
is no authorization for the expenses contained in the line in
question.
The gentleman from California cited an organic statute creating
the office in question, namely, the Bureau of the Mint.
The Chair is aware of the bill, H.R. 2628, passed by the House
earlier this year, but not yet law. That bill, if and when it
becomes law, will authorize some Bureau of Mint appropriations for
fiscal 1984 and provide other permanent authorizations for salaries
and expenses. Absent citation to such a statute requiring annual
authorization, however, the Chair believes that the gentleman from
California may rely on an organic act creating the office and
authorizing it as a standing authorization in law for the purposes
of the Bureau and, therefore, overrules the point of order.
[Subsequently, the following exchange occurred:]
The Chairman: The gentleman from California requested the Chair
to entertain a return to a point of order earlier overruled.
The Chair in rare circumstances may agree to such a request and
has recognized the gentleman to be heard. . . .
Mr. Roybal: Mr. Chairman, I yield to the gentleman from
Illinois (Mr. Annunzio).
Mr. Annunzio: . . . I am renewing my point of order that the
appropriation violates clause 2 of rule XXI, on page 5, line 14, of
the rules of the House, in that they appropriate funds without an
authorization.
A misunderstanding concerning the point of order has occurred
because of a change in the law that took place in 1981, the Omnibus
Reconciliation Act.
[[Page 5418]]
Prior to the passage of the act, the mint operated under a
permanent authorization and needed only to come before the
Appropriations Committee to obtain its funds.
In 1981, however, the Congress changed that law so that the
mint had to first obtain a yearly authorization before obtaining an
appropriation. . . .
The Chairman: The Chair desires to make a statement. The Chair
apologizes in advance to the Members for the length of the
statement.
Earlier, during consideration of the bill in the Committee of
the Whole, the Chair overruled a point of order against the
paragraph appropriating funds for the Bureau of the Mint, salaries
and expenses, on page 5, lines 14 through 17. In argument on the
point of order, the manager of the bill cited provisions of law
establishing and delegating functions to the Bureau of the Mint, as
sufficient authority to authorize appropriations for annual
expenses and salaries. The Chair has since become aware that those
provisions of law have been repealed, and that the statutes
relating to the mint have been amended, first by the Omnibus
Reconciliation Act of 1981, then by the Omnibus Reconciliation Act
of 1982, and then by a complete recodification of title 31 of the
United States Code. No specific authorization of appropriations for
fiscal year 1984 has yet been enacted, but one has passed the House
(H.R. 2628).
The Omnibus Reconciliation Act of 1981, Public Law 97-35,
provided in section 382 that the sentence in the Code (31 U.S.C.
369) which had been construed to provide a permanent authorization
of appropriations for the Bureau of the Mint be repealed, and
replaced that language with an authorization of appropriations for
fiscal year 1982 only. The report on that measure in the House
stated, on page 129, that by repealing the existing statutory
provision and by limiting the authorization to fiscal year 1982
only, it is the intent of the committee to repeal the permanent
authorization for the salaries and expenses of the Bureau of the
Mint. The joint explanatory statement of the conferees on the
Reconciliation Act reiterated that the House bill terminated the
permanent authorization for appropriations for salaries and
expenses of the Bureau of the Mint (page 717). The Omnibus
Reconciliation Act of 1982, Public Law 97-253, in section 202,
changed the 1982 authorization into a fiscal year 1983
authorization. Public Law 97-258 codified in its entirety title 31
of the United States Code, and carried the 1982 authorization in
section 5132 of title 31; all the old provisions of title 31
dealing with the mint, previously cited in argument on the point of
order, have been repealed. Public Law 97-452 modified the
codification to reflect the 1983 authorization carried in the 1982
Reconciliation Act. There remains no statutory language relating to
the mint which may be construed as a permanent authorization.
The Chair recognizes that it is unusual for the Chair to
reverse a decision or ruling previously made, and it is the opinion
of the Chair that he should undertake such a course of action only
where new and substantial facts or circumstances, which were not
evident or stated in argument on a point of order, are subsequently
brought to his attention.
[[Page 5419]]
In rare instances, the Chair has reversed a decision on his own
initiative; for example, the Chairman of the Committee of the Whole
in 1927, as cited in volume 8 of Cannon's Precedents section 3435,
held that a provision in a general appropriation bill constituted
legislation after reviewing a statute he was not previously aware
of when he had rendered a contrary decision.
For the reasons stated, and in view of the unique and
compelling circumstances, the Chair holds that the language in the
bill on page 5, lines 14 through 17, appropriating funds for the
Bureau of the Mint, is unauthorized and, therefore, rules the
paragraph out of order.
Parliamentarian's Note: The Chairman of the Committee of the Whole
may in his discretion entertain (or initiate himself) a request for
further argument on a point of order previously ruled upon, even where
the paragraph has been passed unamended in the reading of the bill for
amendment (and unanimous consent is not required),(16) where
existing law not previously called to the Chair's attention would
require the ruling to be reversed.
---------------------------------------------------------------------------
16. See 8 Cannon's Precedents Sec. 3435.
---------------------------------------------------------------------------
As indicated by the Chair's reservations, such authority should be
exercised in only the most compelling circumstances, such as where the
state of the law has been completely altered and not made known to the
Chair; it should not be exercised in order to further interpret laws
already cited. Although the committee in the instant case had clearly
met the burden of proof on the previous ruling, their position and
statutory authority had not been communicated to the Parliamentarian or
Chair before that ruling, and the Chair had been forced to rule without
the full benefit of arguments on the point of order.
CHAPTER 26
Unauthorized Appropriations; Legislation on Appropriation Bills
B. APPROPRIATIONS FOR UNAUTHORIZED PURPOSES
Sec. 10 Evidence of Authorization
Citation of Statute
Sec. 10.1 Language in a general appropriation bill permitting funds in
that paragraph to remain available until expended was held in order
upon citation by the Committee on Appropriations of statutory
authority therefor.
On Nov. 30, 1973,(17) during consideration in the
Committee of the Whole of a supplemental appropriation bill (H.R.
11576), a point of order was raised against the following provision and
proceedings ensued as indicated below:
---------------------------------------------------------------------------
17. 119 Cong. Rec. 38845, 93d Cong. 1st Sess.
---------------------------------------------------------------------------
[[Page 5420]]
Territorial Affairs
trust territory of the pacific islands
For an additional amount for ``Trust Territory of the Pacific
Islands'', $8,410,000, to remain available until expended.
Mr. [John D.] Dingell [of Michigan]: Mr. Chairman, I raise a
point of order to the language at page 3, line 4, beginning with
the word ``to,'' and reading as follows: ``to remain available
until expended.''
I cite as authority for this, Mr. Chairman, rule XXI, clause 2,
constituting legislation in an appropriation bill and exceeding the
authority of the Committee on Appropriations, essentially
appropriating for a period beyond 1 year. . . .
Mr. [George H.] Mahon [of Texas]: Mr. Chairman, the basic law
states that the Congress is authorized to make the funds available
as expended. This authorization is amply fortified in law. The
point of order is not valid, in the judgment of the Committee on
Appropriations.
The Chairman: (18) Does the gentlewoman from
Washington (Mrs. Hansen) or the gentleman from Texas (Mr. Mahon)
have a copy of the authorization referred to that could be sent to
the desk?
---------------------------------------------------------------------------
18. James G. O'Hara (Mich.).
---------------------------------------------------------------------------
Mr. Mahon: Mr. Chairman, we have the citation here. It is 68
Stat. 330. . . .
The Chairman: The Chair is prepared to rule.
The Chair has examined the statute in question and finds that
it does indeed authorize appropriations providing funds for the
trust territories and specifies that they may remain available
until expended.
The Chair, therefore, overrules the point of order.
Letter From Executive Officer
Sec. 10.2 In ascertaining whether existing law has been complied with
by executive officials in order to justify an appropriation (a
condition stated in the law), the Chair has held that a letter
written by an executive officer charged with the duty of furthering
a certain program was sufficient documentary evidence of
authorization of an appropriation in the manner prescribed by law.
On May 17, 1937,(19) the Committee of the Whole was
considering H.R. 6958, an Interior Department appropriation bill. At
one point the Clerk read as follows, and proceedings ensued as
indicated below:
---------------------------------------------------------------------------
19. 81 Cong. Rec. 4680, 4681, 75th Cong. 1st Sess.
---------------------------------------------------------------------------
Provo River project, Utah, $750,000.
Mr. [John] Taber [of New York]: Mr. Chairman, I make the point
of order against this paragraph that the appropriation is not
authorized by law. No construction has been started and no law is
in force authorizing the
[[Page 5421]]
project. I call the attention of the Chairman to the latter part of
page 245 of the record of the hearings and to the following words:
Construction program through fiscal year 1937. The starting
of actual construction work has been delayed by the necessity
of organization and negotiating repayment and water-
subscription contracts.
It is expected that bids will be received for the
construction--
And so forth. This means there has been no actual construction
on this job and that it has not been authorized by specific
legislation. Therefore, I make the point of order against it that
it is legislation on an appropriation bill, and has not been
authorized by law.
The Chairman: (20) The Chair invites attention to
the provision of the United States Code in title 43, section 413,
which reads as follows:
---------------------------------------------------------------------------
20. Jere Cooper (Tenn.).
---------------------------------------------------------------------------
Approval of projects by President. No irrigation project
shall be begun unless and until the same shall have been
recommended by the Secretary of the Interior and approved by
direct order of the President of the United States.
This is the act of June 25, 1910, commonly referred to as the
Reclamation Act.
The Chair would like to inquire of the gentleman from Utah, or
someone else in position to give the information, whether or not
this item against which a point of order has been made has been
recommended by the Secretary of the Interior and approved by the
direct order of the President of the United States, and the Chair
would like to have some evidence on this point.
Mr. [J. W.] Robinson of Utah: Mr. Chairman, I hold in my hand,
in answer to the statement of the Chair, a letter----
Mr. [James G.] Scrugham [of Nevada]: Mr. Chairman, I offer such
documentary evidence.
Mr. Robinson of Utah: I am submitting, Mr. Chairman, a letter
from Secretary Ickes, together with the approval of this project by
the President.
Mr. [Cassius C.] Dowell [of Iowa]: Mr. Chairman, if documentary
evidence is offered for the purpose of showing compliance with the
law, it seems to me it should be presented to the committee.
The Chairman: The Chair has in mind referring to the document
in passing upon the question here presented.
The Chair feels he has examined sufficient evidence to supply
the information requested. . . .
The Chair is prepared to rule.
There has been presented to the Chair a letter from the
Secretary of the Interior, under date of November 13, 1935, which
consists of three pages, and the Chair will only refer to the
pertinent part of the letter which applies to the particular item
under consideration. The letter is addressed to the President of
the United States by the Secretary of the Interior. Among other
things, it is stated in the letter:
I recommend that the Provo River project, consisting of the
Deer Creek division and the Utah Lake division, be approved and
that authority be issued to this Department to proceed with the
work and to make contracts and to take any necessary action for
the construction of said projects or either division thereof.
[[Page 5422]]
Sincerely yours,
Harold L. Ickes,
Secretary of the Interior.
There appears on this letter, ``Approved November 16, 1935,
Franklin D. Roosevelt, President.''
Therefore the Chair is of the opinion that the evidence is
sufficient to meet the requirements in that this item in the
pending bill has been recommended by the Secretary of the Interior
and approved by the President of the United States, in accordance
with the provisions of existing law, as cited by the Chair,
appearing in section 413, title 43, of the United States Code. The
Chair therefore overrules the point of order.
Letter from Official Given Authority in Law
Sec. 610.3 In deciding whether an appropriation for housing and
technical facilities at an Air Corps intermediate station in
Connellsville, Pennsylvania, was authorized by law, the Chair
accepted as evidence a letter from the Chief of Staff of the Army;
and the committee fulfilled its burden of showing authorization
where the Secretary's letter stated that the procedure for
authorization had been complied with.
On Mar. 28, 1938,(1) the Committee of the Whole was
considering H.R. 9995, a military appropriation bill. A point of order
was raised against the following paragraph in the bill:
---------------------------------------------------------------------------
1. 83 Cong. Rec. 4244, 4245, 75th Cong. 3d Sess.
---------------------------------------------------------------------------
For construction and installation of buildings . . . including
interior facilities . . . to remain available until expended and to
be applied as follows: For . . . housing and technical facilities,
Air Corps intermediate station, Connellsville, Pa., $50,000. . . .
Mr. [John] Taber [of New York]: Mr. Chairman, I make the point
of order against the language, beginning with the word ``housing,''
in line 24, page 26, and ending with the figures ``$50,000'' on
page 27, line 1:
Housing and technical facilities, Air Corps intermediate
station, Connellsville, Pa., $50,000.
I do this because it is not authorized by law. . . .
The Chairman: (2) The Chair is ready to rule.
---------------------------------------------------------------------------
2. Luther A. Johnson (Tex.).
---------------------------------------------------------------------------
The act of August 12, 1936, confers upon the Secretary of War
authority to establish intermediate stations in compliance with the
terms of that act. The chairman of the subcommittee has furnished
the Chair with a letter dated March 22, 1938, from the War
Department advising that the Secretary of War under this authority
has designated Connellsville, Pa., as an intermediate station and
that it had been so designated by the Secretary of War.
The gentleman from New York makes the point of order that
before the Secretary of War could make such a designation he must
comply with certain provisions of the act. The Chair
[[Page 5423]]
would not be warranted in assuming that the Secretary of War
disregarded the provisions of the law. Since the Secretary of War
has made the designation, the Chair thinks it is proper to assume
that the Secretary has carried out the provisions of the law giving
him that authority; in other words, the Chair does not think that
it is necessary for the Chair to assume that the Secretary of War
would violate the act. The proper assumption would be that he had
complied with the law.
Mr. Taber: Mr. Chairman, it seems to me that the burden is upon
the gentleman from Pennsylvania, inserting this item in the bill,
to show that the Secretary of War has legally made a designation of
this place as an intermediate air station in accordance with the
provisions of law and that he has met the four requirements that
are set forth in the statute. I do not think a mere letter from the
Secretary of War stating that he has made some designation would
meet the situation unless the Secretary of War set forth that he
has determined that this airport complies with the four
requirements outlined in the statute. Has the Chair a copy of the
statute available?
The Chairman: The Chair has a copy of the act and is familiar
with the act.
Mr. Taber: It would seem to me that the Secretary of War must
make a finding with reference to these four requirements
specifically and that evidence of it must accompany the request for
an authorization.
Mr. [J. Buell] Snyder of Pennsylvania: Mr. Chairman, will the
gentleman yield?
Mr. Taber: I yield.
Mr. Snyder of Pennsylvania: He did make that finding with
reference to the four specific points.
Mr. Taber: But the evidence is not here to support that.
Mr. Snyder of Pennsylvania: The letter should be sufficient
evidence.
The Chairman: The Chair takes it that the evidence is in the
War Department files. The Chair does not think it should be
necessary to require that that evidence be sent here. When the
House is advised that the Secretary of War has followed the act and
has made the designation, the Chair thinks it would be unnecessary
to require that the evidence be set forth. In the Chair's opinion
the Chair has the right to assume that the Secretary of War has
followed the provisions of law and that the records of the War
Department would so show.
The point of order is overruled.
Press Reports Relating to Project
Sec. 10.4 Statements contained in the Official Information Digest
issued by the Office of Government Reports, to the effect that
Engineer Corps troops were on their way to a specified construction
project were held insufficient evidence that the project was
authorized, or that it was a ``work in progress,'' for which an
appropriation could be made.
[[Page 5424]]
On Mar. 10, 1942,(3) the Committee of the Whole was
considering H.R. 6736, a bill concerned with civil functions of the War
Department. The following proceedings took place:
---------------------------------------------------------------------------
3. 88 Cong. Rec. 2223, 2224, 77th Cong. 2d Sess.
---------------------------------------------------------------------------
Mr. [Francis H.] Case of South Dakota. Mr. Chairman, I offer an
amendment, which is at the desk.
The Clerk read as follows:
Amendment offered by Mr. Case of South Dakota: On page 4,
after line 10, insert ``Alaskan Highway: For prosecuting the
construction of a connecting highway from the States to and
into Alaska, $5,000,000.''. . .
Mr. [John] Taber [of New York]: Mr. Chairman, I make the point
of order against the amendment that it is not authorized by law. .
. .
Mr. Case of South Dakota: . . . Even if this project were one
which required authorization by law the rules of the House provide
that where a project is under construction and an appropriation is
made for continuing construction, the appropriation is in order and
is not subject to a point of order.
I call the Chair's attention to an Associated Press dispatch .
. . in which this statement was made:
An advance crew of American engineers is at Dawson Creek,
and dozens of freight cars carrying construction equipment are
expected to pass through Alberta in the next few weeks.
I also call attention to a statement on page 4 of the Offical
Information Digest issued by the Office of Government Reports on
March 5, in which it is stated that War Secretary Stimson announced
that Engineer Corps troops were already on their way to work on
roads for this Alaskan highway. In other words, construction has
already begun. . . .
The Chairman: (4) The Chair is ready to rule.
---------------------------------------------------------------------------
4. Alfred L. Bulwinkle (N.C.).
---------------------------------------------------------------------------
The mere fact that press reports show that certain groups are
in Alaska does not constitute in the mind of the Chair that there
is really a working performance going on in this project at all.
The Chair, therefore, sustains the point of order.
Mr. Case of South Dakota: Mr. Chairman, a parliamentary
inquiry.
The Chairman: The gentleman will state it.
Mr. Case of South Dakota: Did the Chair understand that I
quoted also from the Information Digest issued by the Office of
Government Reports?
The Chairman: The mere information does not constitute an
authorization, or does not show the work has actually begun, and is
in course of construction.
Public Knowledge
Sec. 10.5 The law authorizing an appropriation, conditioned upon
submission of a balanced budget, was held to have been complied
with, on the basis of public knowledge that the fiscal 1957
[[Page 5425]]
budget submitted by the President (and printed as a House document)
was balanced.
On Mar. 20, 1956,(5) the Committee of the Whole was
considering H.R. 10004, a supplemental appropriation bill. The
following proceedings took place:
---------------------------------------------------------------------------
5. 102 Cong. Rec. 5200, 84th Cong. 2d Sess.
---------------------------------------------------------------------------
Mr. [George H.] Mahon [of Texas]: Mr. Chairman, I offer an
amendment.
The Clerk read as follows:
Amendment offered by Mr. Mahon: On page 16, line 9, insert
the following:
``National Park Service: Construction: For an additional
amount for construction $3 million.''. . .
Mr. [H. R.] Gross [of Iowa]: Mr. Chairman, I make the point of
order that the wording of the amendment does not comply with Public
Law 361 of the 83d Congress (requiring a balanced budget as a
condition to the appropriation).
The Chairman: (6) The Chair is ready to rule.
---------------------------------------------------------------------------
6. Francis E. Walter (Pa.).
---------------------------------------------------------------------------
It is a matter of public knowledge that the budget submitted by
the President is a balanced budget; therefore, the Chair feels that
subsection 2(b) of section 4, Public Law 361, has been complied
with.
The point of order is overruled.
Parliamentarian's Note: Public Law No. 83-361, Sec. 4, stated in
part:
Sec. 4(a) There is hereby authorized to be appropriated not to
exceed $5,000,000 to complete (certain described) elements of the
(Jefferson National Expansion) Memorial as authorized by this Act.
. . .
(b) The authorization for an appropriation contained in
subsection (a) shall not be effective until such time as
(1) the receipts of the Government for the preceding fiscal
year have exceeded the expenditures of the Government for such
year, as determined by the Director of the Bureau of the Budget; or
(2) the budget submitted to the Congress by the President . . .
reveals that the estimated receipts of the Government for the
fiscal year . . . are in excess of the estimated expenditures of
the Government for such fiscal year.
Item Carried in Past Appropriation Bills
Sec. 10.6 The fact that an item has been carried in appropriation bills
for many years does not preclude the point of order that it is
legislation on an appropriation bill.
On Mar. 24, 1939,(7) during consideration in the
Committee of the Whole of the Agriculture Department appropriation bill
(H.R. 5269), the following proceedings took place:
---------------------------------------------------------------------------
7. 84 Cong. Rec. 3272, 76th Cong. 1st Sess. See also 96 Cong. Rec.
5799, 81st Cong. 2d Sess., Apr. 26, 1950 (proceedings relating
to H.R. 7786).
---------------------------------------------------------------------------
The Clerk read as follows:
[[Page 5426]]
Mexican fruitfly control: For the control and prevention of
spread of the Mexican fruitfly, including necessary surveys and
control operations in Mexico in cooperation with the Mexican
Government or local Mexican authorities, $160,460.
Mr. [J. William] Ditter [of Pennsylvania]: Mr. Chairman, I make
the point of order that the paragraph on page 54 which the Clerk
has just read, being lines 1 to 4, inclusive, is legislation on an
appropriation bill and not authorized by law. . . .
The Chairman: (8) Can the gentleman from Missouri,
the chairman of the subcommittee, cite any legislative enactment
authorizing this provision?
---------------------------------------------------------------------------
8. Fritz G. Lanham (Tex.).
---------------------------------------------------------------------------
Mr. [Clarence] Cannon of Missouri: Mr. Chairman, this provision
has been carried in the bill for many years, but there is no law
under which an appropriation is authorized for carrying on these
activities.
The Chairman: Of course, the provision was retained in previous
bills by reason of the fact that no point of order was made against
it.
If the gentleman has no citation of law authorizing this
provision in the bill, the Chair sustains the point of order.
Executive Assurance That Authorization Formula Was Followed
Sec. 10.7 Where the law authorizing funds for the Postal Service
required the calculation of the appropriation to be the difference
between revenues received under certain rates and revenues which
would have been received under certain other conditions, a lump-sum
appropriation was held to be authorized as required by Rule XXI
clause 2 upon assurance from the Committee on Appropriations that
that amount was based upon estimates properly submitted pursuant to
that law.
On Nov. 30, 1973,(9) during consideration in the
Committee of the Whole of a supplemental appropriation bill (H.R.
11576), a point of order was raised against the following provision:
---------------------------------------------------------------------------
9. 119 Cong. Rec. 38851-53, 93d Cong. 1st Sess.
---------------------------------------------------------------------------
For an additional amount for ``Payment to the postal service
fund'', $110,000,000.
Mr. [H. R.] Gross [of Iowa]: Mr. Chairman, I make a point of
order on the matter contained in chapter IX of the bill, H.R.
11576.
The Chairman: (10) The gentleman will state his
point of order.
---------------------------------------------------------------------------
10. James G. O'Hara (Mich.).
---------------------------------------------------------------------------
Mr. Gross: . . . Mr. Chairman, chapter IX of the bill proposes
to appropriate an additional amount for payment to the Postal
Service fund in the sum of $110,000,000, for which there is no
authorization in the law, and in clear violation of the House rule.
. . .
Mr. [Tom] Steed [of Oklahoma]: . . . The purpose of the act on
the
[[Page 5427]]
Postal Corporation is quite clear. It provides that the Congress
shall make appropriations to the Postal Corporation for two
purposes; one, 10 percent of the 1970 budget, the other, for
revenues foregone on certain classes of mail.
When the budget came out this year, those two items totaled
$1,373,000,000. The committee, when it reported the bill in the
House and Congress approved the bill, carried these two items of
$1,373,000,000, but there was another matter that was involved,
because the legislative committees have not finished their work.
They have had to fund the Postal Corporation for the Government's
portion of contributions to the retirement fund for postal pay
raises. The House has passed the bill saying that the government
had to make these payments. The other body has not seen fit to take
any action. The retirement fund was in desperate circumstances, and
the committee, in its wisdom, biding time to wait for the
legislative committee to act, put in the original bill to transfer
out of this $1,373,000,000 to the retirement fund of $142 million.
The $110 million involved here is $32 million under the original
budget request based upon these two items provided in the act. The
revenue foregone is covered in section (c), paragraph 2401:
There are authorized to be appropriated to the Postal
Service each year a sum determined by the Postal Service to be
equal to the difference between the revenues the Postal Service
would have received if sections 3217, 3403-3405, and 3626 of
this title and the Federal Voting Assistance Act of 1955 had
not been enacted and the estimated revenues to be received on
mail carried under such sections and Act.
What we are faced with here is going back to the beginning. We
are actually $32 million under what the original estimates were,
and also this is perfectly within the law and perfectly within the
original budget estimates of the committee, and it is under the
amount that they originally set, and I do not think there is any
way on earth that we can begin to say that this could be subject to
a point of order. . . .
The Chairman: The Chair is prepared to rule.
Section 2401(b)(1) authorizes certain sums for appropriations,
as the gentleman from Oklahoma points out, and the gentleman from
Iowa has recognized that with respect to this matter further sums
are authorized to be appropriated under section 2401(c) which
authorizes the appropriation ``to the Postal Service each year of a
sum determined by the Postal Service to be equal to the difference
between the revenues the Postal Service would have received'' under
certain circumstances and ``estimated revenues to be received on
mail carried under such sections and act.''
The provision carried in the bill is to cover the estimate that
was transmitted by the Postal Service.
The gentleman from Iowa makes the point that the estimate
transmitted by the Postal Service was not properly arrived at.
The Chair does not believe it is his responsibility or
privilege to go beyond the provisions printed in the bill and the
authorizing statute. As far as a reading of the bill and the
authorizing statute reveals to the Chair, the appropriation is
authorized, and the Chair overrules the point of order.
[[Page 5428]]
Citation of Generic Law
Sec. 10.8 A paragraph in a general appropriation bill purportedly
containing some funds not yet specifically authorized by separate
legislation was held not to violate Rule XXI clause 2 where it was
shown that all of the funds in the paragraph were authorized by
more general provisions of law currently applicable to the programs
in question.
On June 8, 1978,(11) during consideration in the
Committee of the Whole of the Departments of Labor and Health,
Education, and Welfare appropriation bill (H.R. 12929), a point of
order was overruled against the following provision:
---------------------------------------------------------------------------
11. 124 Cong. Rec. 16778, 95th Cong. 2d Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
student assistance
For carrying out subparts 1 ($3,373,100,000), 2
($340,100,000), and 3 ($86,750,000) of part A, and parts C
($520,000,000) and E ($328,900,000) of Title IV of the Higher
Education Act, and, to the extent not otherwise provided, the
General Education Provisions Act, $4,675,750,000, of which
$4,651,350,000 shall remain available until September 30, 1980:
Provided, That amounts appropriated for basic opportunity
grants shall be available first to meet any insufficiencies in
entitlements resulting from the payment schedule for basic
opportunity grants published by the Commissioner of Education
during the prior fiscal year: Provided further, That pursuant
to section 411(b)(4)(A) of the Higher Education Act, amounts
appropriated herein for basic opportunity grants which exceed
the amounts required to meet the payment schedule published for
any fiscal year by 15 per centum or less shall be carried
forward and merged with amounts appropriated the next fiscal
year.
Mr. [R. Lawrence] Coughlin [of Pennsylvania]: Mr. Chairman, I
have a point of order. . . .
[D]uring the discussion of the rule on this bill, I asked if
there was money in this portion of the bill for the so-called
Middle Income Student Assistance Act. The distinguished chairman of
the subcommittee informed me that there indeed was money in the
bill for that act.
I indicated at that time that the Middle Income Student
Assistance Act was not authorized. In fact, the House specifically
refused to consider that act and has subsequently passed the
Tuition Tax Credit Act. I was informed that was not necessary
because this could be done under current law.
Mr. Chairman, the Middle Income Student Assistance Act is not
current law. If the Middle Income Student Assistance Act is current
law, why did the President propose it as a new program?
Mr. Chairman, the committee report says that this appropriation
is based on the House version of the Middle Income Student
Assistance Act and will expand student aid for middle income
students. It will not expand aid for
[[Page 5429]]
middle income students without increasing the middle income student
limitation, and there is no authorization for that.
Mr. Chairman, I would like to know whether the Middle Income
Student Assistance Act is or is not in existence and whether it is
or is not necessary, and I make the point of order that the $1.4
billion in this section that is for expanded aid to middle income
students is not authorized. . . .
Mr. [David R.] Obey [of Wisconsin]: . . . Mr. Chairman, let me
just point out that the Middle Income Student Assistance Act, which
has not yet passed, simply gives direction and makes certain
changes in an already existing program. The bill before us today
funds programs which are in existing law, and the gentleman's point
of order is, therefore, not well taken.
The Chairman: (12) The Chair is ready to rule.
---------------------------------------------------------------------------
12. Richard Bolling (Mo.).
---------------------------------------------------------------------------
The gentleman stated quite accurately that the report of the
committee on this appropriation bill indicated that the Middle
Income Student Assistance Act H.R. 11274 had not become law. It
also says, and I quote, on page 74:
Even though this legislation is still pending,
appropriations can be made under existing authority to expand
student aid for middle income students, as expressed in the
bill and accompanying report.
The Chair has had an opportunity to examine the report on H.R.
11274 and the basic law. This is Public Law 94-482, 94th Congress,
the Education Amendment of 1976.
Section 121, Part D, Student Assistance Basic Educational
Opportunity Grants, extends the authorizations of the basic act to
September 30, 1979.
Considering all of the authorizations for fiscal 1979 under
part D--Student Assistance--together, it would appear that the
funds in the paragraph in question are authorized.
Therefore, the Chair believes that the Committee is correct in
its view that there is extant authorization justifying this
appropriation, and he overrules the point of order.
Reorganization Plan
Sec. 10.9 While an Executive order creating a federal office cannot,
standing alone, be considered authority in law for appropriations
for that office, a reorganization plan from which that office
derives may be cited by the Committee on Appropriations to support
such an appropriation.
On June 21, 1974,(13) during consideration in the
Committee of the Whole of the Department of Agriculture and environment
and consumer protection appropriation bill (H.R. 15472), a point of
order was overruled as indicated below:
---------------------------------------------------------------------------
13. 120 Cong. Rec. 20595, 20596, 93d Cong. 2d Sess.
---------------------------------------------------------------------------
Mr. [Robert E.] Bauman [of Maryland]: Mr. Chairman, I have a
point of order pertaining to title IV on page 45, lines 9 through
14, under the title ``Consumer Programs, Department of
[[Page 5430]]
Health, Education, and Welfare, Office of Consumer Affairs'' on the
ground that it violates rule XXI, clause 2, in that there is no
existing statutory authority for this office, and I cite as
authority the fact that last year this same point of order was made
and the Chair ruled that there was no existing authority. . . .
Mr. [Jamie L.] Whitten [of Mississippi]: . . . It is pointed
out on page 967 of the hearings that we had submitted the report
from the Department of HEW, dated March 21, 1974, in which they
cite:
Reorganization Plan No. 1 of 1953 provides in pertinent
part: ``In the interest of economy and efficiency the Secretary
may from time to time establish central . . . services and
activities common to the several agencies of the Department . .
.'' (section 7).
Later this report says:
The office of Consumer Affairs, they include policy
guidance responsibility respecting the relationship of all of
the statutes of the Department to the consumer interest.
So this agency is in line with the Reorganization Plan No. 1 of
1953 which was approved and authorized by the Congress, and for
that reason it is within the authorization of the law.
The Chairman: (14) Could the gentleman from
Mississippi give us the statutory citation for this office?
---------------------------------------------------------------------------
14. Sam Gibbons (Fla.).
---------------------------------------------------------------------------
Mr. Whitten: It is Reorganization Plan No. 1 of 1953.
Mr. [John D.] Dingell [of Michigan]: Mr. Chairman, I would
point out that the Appropriations Committee only has authority, and
I would say my good friend, the gentleman from Mississippi, is one
of the most wise and able Members of this body and he is well aware
of the fact that the reorganization plans are not statutory in
effect and do not confer the authority on the executive branch to
procure and expend appropriated funds. They do not constitute an
authorization and, therefore, even though there is a reorganization
plan in being it does not constitute the basis upon which the
committee may predicate appropriations.
The Chairman: Last year when this same point was raised, the
authority that was cited was an Executive order. The Chair will
state that a reorganization plan--which was not cited as authority
on June 15, 1973--once it has become effective, has the effect of
law and of statute and, therefore, the point of order would have to
be overruled.
Mr. Dingell: Mr. Chairman, if the Chair will permit me further,
the gentleman does not cite the Reorganization Act. He recites a
reorganization plan which is very different from a Reorganization
Act.
The Chairman: The Chair understands that if the reorganization
plan has become effective, if it was not rejected by the Congress
within the time provided, it has the effect of a statute. . . .
The Chair overrules the point of order. The Chair has examined
the law and is citing from title V, United States Code, section
906, which prescribes the procedure by which a reorganization plan
does become effective. It is clear to the Chair that Reorganization
Plan No. 1 of 1953 has the effect of law, and therefore, the point
of order is overruled.
[[Page 5431]]
Executive Order
Sec. 10.10 Pursuant to Rule XXI clause 2 and 36 USC Sec. 673,
commissions and councils must have been established by law--and not
merely by Executive order--prior to the expenditure of federal
funds therefor.
On June 25, 1974,(15) during consideration in the
Committee of the Whole of the Department of Treasury, Postal Service,
and Executive Office appropriation bill (H.R. 15544), a point of order
was sustained as indicated below:
---------------------------------------------------------------------------
15. 120 Cong. Rec. 21036, 21037, 93d Cong. 2d Sess.
---------------------------------------------------------------------------
The Chairman: (16) The Clerk will read.
---------------------------------------------------------------------------
16. B. F. Sisk (Calif.).
---------------------------------------------------------------------------
The Clerk read as follows:
For necessary expenses, including services as authorized by
5 U.S.C. 3109 . . . not to exceed $2,500 for official reception
and representation expenses; and advances or reimbursements to
applicable funds of the Commission and the Federal Bureau of
Investigation for expenses incurred under Executive Order 10422
of January 9, 1953, as amended; $90,000,000 together with not
to exceed $18,698,000 for current fiscal year administrative
expenses for the retirement and insurance programs to be
transferred from the appropriate trust funds of the Commission
in amounts determined by the Commission without regard to other
statutes: Provided, That the provisions of this appropriation
shall not affect the authority to use applicable trust funds
for administrative expenses of effecting statutory annuity
adjustments. . . .
Mr. [Charles A.] Vanik [of Ohio]: Mr. Chairman, I make a point
of order on the language beginning at line 12 on page 12 of this
bill with the figures ``$90,000,000'' through line 20 ending in the
word ``adjustments.''. . .
Mr. Chairman, it is my understanding that there is in fact no
authorization for the President's Commission on Personnel
interchange for which $353,000 is herein requested. It was created
solely by Executive Order 11451 on January 19, 1969.
This House rule is supported in this regard by title 36 of the
United States Code, section 673, which also indicates that no funds
should be expended by this body without authorization. The full
section of the law reads as follows:
Title 36, Section 673
No part of the public monies, or of any appropriation made
by Congress, shall be used for the payment of compensation or
expenses of any commission, council or other similar body, or
any members thereof, or for expenses in connection with any
work or the results of any work or action of commission,
council, board, or similar body, unless the creation of the
same shall be or shall have been authorized by law; nor shall
there be employed any detail hereafter or heretofore made or
otherwise personal services from any Executive Department or
other Government establishment in connection with any such
commission, council, board, or similar body. . . .
The Chairman: Does the gentleman from Oklahoma desire to be
heard on the point of order?
[[Page 5432]]
Mr. [Tom] Steed [of Oklahoma]: Mr. Chairman, we concede the
point of order.
The Chairman: The gentleman from Oklahoma (Mr. Steed) concedes
the point of order.
The point of order is sustained.
Requirement of Annual Authorization Superceding Organic Law
Sec. 10.11 Pursuant to law (22 USC Sec. 2680(a)(1)), no funds shall be
available to the Department of State for obligation or expenditure
unless the appropriation thereof has been authorized by law enacted
after February 1972 (thus requiring specific subsequently enacted
authorizations for both the direct operations of that Department
and related functions delegated to it by laws enacted prior to that
date, and not permitting appropriations under Rule XXI clause 2 to
be authorized by the ``organic statute'' or other laws earlier
authorizing appropriations for related activities); accordingly
several appropriations not specifically authorized as required were
conceded to be subject to a point of order.
On June 14, 1978,(17) appropriations in a general
appropriation bill for the Department of State, including salaries and
expenses, representation allowances, expenses under the Foreign
Services Buildings Act, special foreign currency program, emergencies
in the diplomatic and consular service, retirement and disability fund,
international conferences, international peacekeeping activities,
missions to international organizations, international conferences and
contingencies, international trade negotiations, international
commissions, construction, and general provisions, no authorizations
for such appropriations having been enacted for the fiscal year in
question as specifically required by law, were conceded to be
unauthorized and were ruled out as in violation of Rule XXI clause 2.
The proceedings are discussed further in Sec. 17.21, infra. See also
Sec. 17.19, infra, discussing unauthorized funds for the Board for
International Broadcasting. The Board, having been established
independently of the Department of State, was not subject to the
provisions of 22 USC Sec. 2680(a).
---------------------------------------------------------------------------
17. 124 Cong. Rec. 17616, 17617, 17620, 95th Cong. 2d Sess.
---------------------------------------------------------------------------
Parliamentarian's Note: Similarly, pursuant to law (Public Law
[[Page 5433]]
No. 94-503, Sec. 204) all appropriations for the Department of Justice
and related agencies and bureaus are deemed unauthorized for fiscal
1979 and subsequent fiscal years unless specifically authorized for
each fiscal year, and the creation of any subdivision in that
department or the authorization of any activity therein, absent
language specifically authorizing appropriations for a fiscal year, is
not deemed sufficient authorization. Accordingly, on June 14,
1978,(18) appropriations for the Department of Justice and
related agencies for fiscal 1979 were conceded to be unauthorized
(except for certain agencies for which appropriations had been
authorized by separate law).
---------------------------------------------------------------------------
18. 124 Cong. Rec. 17622-24, 95th Cong. 2d Sess.
---------------------------------------------------------------------------
CHAPTER 26
Unauthorized Appropriations; Legislation on Appropriation Bills
B. APPROPRIATIONS FOR UNAUTHORIZED PURPOSES
Sec. 11. Subject Matter: Agriculture
Language of Permanence in Prior Appropriation Act
Consumption of Domestic Farm Commodities
Sec. 11.1 An appropriation of $25 million to be used to increase
domestic consumption of farm commodities was held authorized by
permanent legislation contained in a prior appropriation law
providing that ``hereafter such sums shall be available as approved
by Congress.''
On May 20, 1964,(19) the Committee of the Whole was
considering H.R. 11202, an Agriculture Department appropriation bill.
At one point the Clerk read as follows and proceedings ensued as
indicated below:
---------------------------------------------------------------------------
19. 110 Cong. Rec. 11422, 11423, 88th Cong. 2d Sess.
---------------------------------------------------------------------------
Removal of Surplus Agricultural Commodities (Section 32)
No funds available under section 32 of the Act of August 24,
1935 (7 U.S.C. 612C) shall be used for any purpose other than
commodity program expenses as authorized therein, and other related
operating expenses, except for . . . (5) not in excess of
$25,000,000 to be used to increase domestic consumption of farm
commodities pursuant to authority contained in Public Law 88-250,
the Department of Agriculture and Related Agencies Appropriation
Act, 1964, of which amount $2,000,000 shall remain available until
expended for construction, alteration and modification of research
facilities.
Mr. [Paul] Findley [of Illinois]: Mr. Chairman, I make a point
of order against the language in this section headed ``Removal of
Surplus Agricultural Commodities (sec. 32).''. . .
My point of order is that the proposition is not in compliance
with clause
[[Page 5434]]
2 rule XXI of the House of Representatives. Clause 2 reads:
No appropriation shall be reported in any general
appropriation bill, or be in order as an amendment thereto, for
any expenditures not previously authorized by law, unless in
continuation of appropriations for such public works and
objects as are already in progress.
The Chairman: (20) May the Chair inquire of the
gentleman from Illinois as to whether his point of order is to the
entire section or the entire paragraph or that portion which he
indicated?
---------------------------------------------------------------------------
20. Eugene J. Keogh (N.Y.).
---------------------------------------------------------------------------
Mr. Findley: My point of order is to lines 3 through 9, the
portion of the section beginning with the figure in parentheses 5.
I will read it. It reads as follows:
(5) not in excess of $25,000,000 to be used to increase
domestic consumption of farm commodities pursuant to authority
contained in Public Law 88-250, the Department of Agriculture
and Related Agencies Appropriation Act, 1964, of which amount
$2,000,000 shall remain available until expended for
construction, alteration and modification of research
facilities.
There is legislation in an appropriation bill.
The Chairman: The gentleman will include the word ``and'' on
line 2, I assume.
Mr. Findley: Yes.
The Chairman: Does the gentleman from Mississippi desire to be
heard on the point of order?
Mr. [Jamie L.] Whitten [of Mississippi]: Mr. Chairman, I call
attention to the section in the bill, last year where Congress
passed permanent legislation authorizing this in the appropriation
act in which we said hereafter this could be done. It is in last
year's appropriation act which was written for this specific
purpose and provides hereafter not to exceed $25 million may be
appropriated for these purposes. We cite chapter and verse there,
so to speak, and it is quite clear. . . .
The Chairman: The Chair is ready to rule. The gentleman from
Illinois [Mr. Findley] makes a point of order addressed to the
language appearing on page 16, line 2, beginning with ``and'' and
continuing through and including line 9, on the ground that it is
legislation on an appropriation bill.
The Chair has had called to its attention the section which was
contained in Public Law 88-250, in which it appears that the
appropriation here, which incidentally is also in the nature of a
limitation, was authorized by the Congress by the inclusion of the
words pointed out by the gentleman from Mississippi that
``hereafter such sums (not in excess of $25,000,000 in any one
year) as may be approved by the Congress shall be available for
such purpose,'' and so forth.
The Chair therefore holds that the language in that public law
cited is authority for the inclusion in the pending bill of the
language to which the point of order was addressed and therefore
overrules the point of order.
Centennial of Agriculture Department
Sec. 11.2 Language in a general appropriation bill providing funds for
a celebration of the
[[Page 5435]]
centennial of the establishment of the Department of Agriculture
was held to be not specifically authorized by law and not
authorized by the organic act creating the department and
permitting dissemination of information.
On June 6, 1961,(1) during consideration in the
Committee of the Whole of the Agriculture Department appropriation bill
(H.R. 7444), a point of order was raised against the following
provision:
---------------------------------------------------------------------------
1. 107 Cong. Rec. 9625, 87th Cong. 1st Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
Centennial Observance of Agriculture
Salaries and expenses
For expenses necessary for planning, promoting,
coordinating, and assisting participation by industry, trade
associations, commodity groups, and similar interests in the
celebration of the centennial of the establishment of the
Department of Agriculture; expenses of an honorary committee
established in connection with such celebration; and employment
pursuant to section 706(a) of the Organic Act of 1944 (5 U.S.C.
574), as amended by section 15 of the Act of August 2, 1946 (5
U.S.C. 55a); $100,000, to remain available until December 31,
1962.
Mr. [Clare E.] Hoffman [of Michigan]: Mr. Chairman, I make the
point of order against the language beginning on page 28, line 14,
and continuing down to and including line 2 on page 29, that it is
not authorized by law.
The Chairman: (2) Does the gentleman from
Mississippi desire to be heard on the point of order?
---------------------------------------------------------------------------
2. Paul J. Kilday (Tex.).
---------------------------------------------------------------------------
Mr. [Jamie L.] Whitten [of Mississippi]: Yes, Mr. Chairman. May
I say we have checked this matter and under the organic act of 1862
creating the Department of Agriculture, authority is granted to
disseminate information. It is our argument and our insistence that
the language which the gentleman would strike under which a
centennial observance of the creation of the Department of
Agriculture is to be held here in Washington where visitors from
all over the United States may come to see the exhibits and
demonstrations and reports and various other things that the
Department has brought together over the years is clearly
disseminating information, and is within the organic act which
created the Department of Agriculture, which act was passed in
1862.
The Chairman: The Chair asks the gentleman from Mississippi if
he can refer the Chair to any special or specific legislation
authorizing the celebration of the centennial of the establishment
of the Department of Agriculture or does the gentleman rely on the
general organic act?
Mr. Whitten: I rely upon the general organic act, Mr. Chairman.
The Chairman: Does the gentleman from Michigan desire to be
heard further on the point of order?
Mr. Hoffman of Michigan: I did not find anything in that act
which said
[[Page 5436]]
anything about any honorary committee--they never even dreamed of
that at that time.
The Chairman: Does the gentleman from Mississippi desire to be
heard further?
Mr. Whitten: No, Mr. Chairman.
The Chairman: The Chair is prepared to rule.
The gentleman from Michigan (Mr. Hoffman) makes a point of
order against that portion of the bill appearing in line 14 on page
28 through and including line 2 on page 29. The Chair is
constrained to hold that the language does constitute legislation
on an appropriation bill and, therefore, sustains the point of
order.
Cooperative Range Improvements
Sec. 11.3 Appropriations for cooperative range improvements (including
construction, maintenance of improvements, control of rodents, and
eradication of noxious plants in national forests) were authorized
by law.
On May 10, 1951,(3) the Committee of the Whole was
considering H.R. 3973, a Department of Agriculture appropriation. At
one point the Clerk read as follows and proceedings ensued as indicated
below:
---------------------------------------------------------------------------
3. 97 Cong. Rec. 5224, 82d Cong. 1st Sess.
---------------------------------------------------------------------------
Amendment offered by Mr. H. Carl Andersen (of Minnesota): Page
26, line 12, insert:
``For artificial revegetation, construction, and
maintenance of range improvements, control of rodents, and
eradication of poisonous and noxious plants on national
forests, as authorized by section 12 of the act of April 24,
1950 (Public Law 478), $700,000, to remain available until
expended.''. . .
Mr. [Jamie L.] Whitten [of Mississippi]: I make [a] point of
order.
Mr. H. Carl Andersen: Mr. Chairman, may I be heard on the point
of order?
The Chairman: (4) The Chair will hear the gentleman.
---------------------------------------------------------------------------
4. Aime J. Forand (R.I.).
---------------------------------------------------------------------------
Mr. H. Carl Andersen: I call the Chair's attention to the
remarks made by the gentleman from Montana [Mr. D'Ewart] on
yesterday, which appear in yesterday's Record which shows that this
particular item I am attempting to reinsert is authorized by law.
Mr. Chairman, I refer to section 12 of Public Law 478, Eighty-
first Congress, which reads as follows:
Of the moneys received from grazing fees by the Treasury
from each national forest during each fiscal year there shall
be available at the end thereof when appropriated by Congress
an amount equivalent to 2 cents per animal-month for sheep and
goats and 10 cents per animal-month for other kinds of
livestock under permit on such national forest during the
calendar year in which the fiscal year begins, which
appropriated amount shall be available until expended on such
national forests, under such regulations as the Secretary of
Agriculture may prescribe, for (1) artificial revegetation,
including the collection or purchase of necessary seed; (2)
construction and maintenance of drift or division
[[Page 5437]]
fences and stockwatering places, bridges, corrals, driveways,
or other necessary range improvements; (3) control of range-
destroying rodents; or (4) eradication of poisonous plants and
noxious weeds, in order to protect or improve the future
productivity of the range.
Mr. Chairman, I maintain and respectfully call your attention
to the fact that this distinctly authorizes the section of this
particular paragraph which I seek by my amendment to have
reinserted. . . .
The Chairman: The Chair is of the opinion that the amendment is
in order, and therefore overrules the point of order.
Conservation
Sec. 11.4 An amendment proposing an increase of appropriations
contained in the bill for the year 1951 for conservation and use of
agricultural land resources under the act of Feb. 29, 1936, was
held authorized by law inasmuch as the law itself did not provide a
limit on the appropriations.
On Apr. 27, 1950,(5) the Committee of the Whole was
considering H.R. 7786, the Department of Agriculture chapter in the
general appropriation bill of 1951. The bill stated in part:
---------------------------------------------------------------------------
5. 96 Cong. Rec. 5949, 81st Cong. 2d Sess.
---------------------------------------------------------------------------
To enable the Secretary to carry into effect the provisions of
sections 7 to 17, inclusive, of the Soil Conservation and Domestic
Allotment Act, approved February 29, 1936, as amended . . .
$282,500,000, to remain available until December 31 of the next
succeeding fiscal year for compliance with the program of soil-
building practices and soil- and water-conserving practices
authorized under this head in the Department of Agriculture
Appropriation Act, 1950, carried out during the period July 1,
1949, to December 31, 1950, inclusive: Provided, That not to exceed
$25,500,000 of the total sum provided under this head shall be
available during the current fiscal year for salaries and other
administrative expenses for carrying out such program . . . but not
more than $5,000,000 shall be transferred to the appropriation
account, ``Administrative expenses, section 392, Agricultural
Adjustment Act of 1938'' . . . Provided further, That none of the
funds herein appropriated or made available for the functions
assigned to the Agricultural Adjustment Agency pursuant to the
Executive Order Numbered 9069, of February 23, 1942, shall be used
to pay the salaries or expenses of any regional information
employees or any State information employees, but this shall not
preclude the answering of inquiries or supplying of information at
the county level to individual farmers: Provided further, That such
amount shall be available for salaries and other administrative
expenses in connection with the formulation and administration of
the 1951 program of soil-building practices and soil- and water-
conserving practices, under the Act of February 29, 1936, as
amended (amounting to $285,000,000, including administration. . .
.)
An amendment was offered:
[[Page 5438]]
Amendment offered by Mr. [George H.] Christopher [of Missouri]:
On page 190, line 24, strike out ``$285,000,000'' and insert
``$400,000,000.''
Mr. [John] Taber [of New York]: Mr. Chairman, I make the point
of order against the amendment that this is language that is not
authorized by law.
Mr. Christopher: Mr. Chairman, I am informed by rather reliable
sources that the authorization is for a $500,000,000 program.
The Chairman: (6) The Chair is prepared to rule. The
Chair would invite attention to the fact that this is for the
future. Unless there is some limitation of law to which the
attention of the Chair has not been called, this amendment is in
order.
---------------------------------------------------------------------------
6. Jere Cooper (Tenn.).
---------------------------------------------------------------------------
The Chair overrules the point of order.
Parliamentarian's Note: The burden of proof should have been on the
proponent of the amendment to show the total amount authorized or the
absence of any limit.
School Lunch Program
Sec. 11.5 An appropriation to enable the Secretary of Agriculture to
carry out the provisions of the National School Lunch Act of 1946
was authorized by law; charges that disbursement of funds did not
follow requirements of that law did not detract from authorization.
On Apr. 1, 1947,(7) the Committee of the Whole was
considering H.R. 2849, a deficiency appropriation bill. A point of
order against the following amendment was overruled:
---------------------------------------------------------------------------
7. 93 Cong. Rec. 2978, 80th Cong. 1st Sess.
---------------------------------------------------------------------------
Amendment offered by Mr. [Clarence] Cannon [of Missouri]: On
page 15, after line 21, insert the following:
``For an additional amount, fiscal year 1947, to enable the
Secretary of Agriculture to carry out the provisions of the
National School Lunch Act of 1946, $6,000,000.''
Mr. [John] Taber [of New York]: Mr. Chairman, a point of order.
The Chairman: (8) The gentleman will state the point
of order.
---------------------------------------------------------------------------
8. George A. Dondero (Mich.).
---------------------------------------------------------------------------
Mr. Taber: Mr. Chairman, I make a point of order against the
amendment on the ground that it is not authorized by law.
The statute which purports to authorize it provides as follows:
Such payments to any State in any fiscal year during the
period 1947 to 1950, inclusive, shall be made upon condition
that each dollar thereof will be matched during such year by $1
from sources within the State determined by the Secretary to
have been expended in connection with the school-lunch program
under this act. . . .
For the purpose of determining whether the matching
requirements of this section and section 10, respectively, have
been met, the reasonable value of donated services, supplies,
facilities, and equipment as certified, respectively, by the
State edu
[[Page 5439]]
cational agency and in case of schools receiving funds pursuant
to section 10, by such schools.
The total appropriation distributed amounts to $72,975,000; the
total [amount matched is] $11,470,000.
There has been complete failure of matching by local
authorities within the provisions of the statute. Under the
circumstances they have not complied with the law and there is no
opportunity for a deficiency here. . . .
Mr. Cannon: Mr. Chairman, as the amendment indicates, the
appropriation proposed here is to enable the Secretary of
Agriculture to carry out the provisions of the National School
Lunch Act of 1946. The act speaks for itself. Under the law the
question of matching is under the jurisdiction of the Secretary of
Agriculture. It is not a matter to be determined by this body. That
is a function specifically delegated by the act to the executive in
charge of the program--the Secretary of Agriculture. There is no
question about the amendment being in order. The sole proposition
involved is to carry out the provisions of the act. I submit that
the point of order is not well taken.
The Chairman: The Chair is of the opinion that the amendment
offered by the gentleman from Missouri is germane to the bill and
the appropriation authorized by law; therefore overrules the point
of order presented by the gentleman from New York [Mr. Taber].
Penalty Refunds
Sec. 11.6 A provision for the refund of certain penalties to the wheat
producers from whom the penalties were collected was held
unauthorized by law.
On Mar. 24, 1945,(9) the Committee of the Whole was
considering H.R. 2689, an Agriculture Department appropriation. When an
amendment was offered to a paragraph containing an appropriation for
programs under the Agricultural Adjustment Act, proceedings ensued as
indicated below:
---------------------------------------------------------------------------
9. 91 Cong. Rec. 2713, 79th Cong. 1st Sess.
---------------------------------------------------------------------------
Amendment offered by Mr. [William] Lemke [of North Dakota]:
Page 49, line 2, after the words ``as amended'' and comma, insert
``$16,000,000 to be made available and earmarked for the refund of
the wheat-marketing-quota penalities to the producers, their heirs
or assigns, from whom the penalties were collected.''
Mr. [Malcolm C.] Tarver [of Georgia]: Mr. Chairman, I make the
same point of order against this amendment. The fact that it is
offered in a different place in the bill makes no difference. It is
legislation on an appropriation bill and is out of order.
Mr. Lemke: Mr. Chairman, on that I wish to be heard briefly.
The Chairman: (10) The Chair will hear the
gentleman.
---------------------------------------------------------------------------
10. William M. Whittington (Miss.).
---------------------------------------------------------------------------
Mr. Lemke: Mr. Chairman, I wish to state that this is a
limitation on the $300,000,000 appropriated and earmarked for the
purpose for which it should be used. In the second place,
[[Page 5440]]
this tax was collected illegally and unconstitutionally from the
producers of wheat, and the Department of Agriculture has that
money. I feel that the farmers who paid it are entitled to have it
returned.
The Chairman: The Chair is ready to rule. . . . Under the
authorization the $300,000,000 contained in the bill is for
compliance with . . . the provisions of the Agricultural Adjustment
Act, and under the terms of that act no provisions were made for
the refunds embraced in the amendment. Therefore the Chair sustains
the point of order.
Compilation of Consumer Statistics
Sec. 11.7 A section of an appropriation bill providing funds to
collect, compile, and analyze data relating to consumer
expenditures and savings, and to compile statistics collected by
the Department of Agriculture, was conceded not to be authorized by
law.
On Dec. 8, 1944,(11) during consideration in the
Committee of the Whole of a supplemental appropriation bill (H.R.
5587), a point of order was raised against the following provision:
---------------------------------------------------------------------------
11. 90 Cong. Rec. 9073, 78th Cong. 2d Sess. See also 90 Cong. Rec.
8940, 78th Cong. 2d Sess., Dec. 6, 1944.
---------------------------------------------------------------------------
The Clerk read as follows:
Consumer expenditures and savings study: For all expenses
of the Department of Labor necessary to collect, compile, and
analyze statistics with respect to the consumer expenditures
and savings in predominantly nonrural areas, to publish the
results thereof, and to compile statistics collected by the
Department of Agriculture in other areas, such expenses to
include personal services in the District of Columbia and other
items properly chargeable to the appropriations for the
Department of Labor for contingent expenses, travel, and
printing and binding, fiscal year 1945, $1,532,000, to remain
available until June 30, 1946.
Mr. H. Carl Andersen [of Minnesota]: Mr. Chairman, I make the
point of order against the paragraph beginning on line 8 and ending
in line 18, page 31, on the ground that it is legislation on an
appropriation bill, not authorized by law.
Mr. [John H.] Kerr [of North Carolina]: Mr. Chairman, the point
of order is conceded.
The Chairman: (12) The Chair sustains the point of
order.
---------------------------------------------------------------------------
12. Herbert C. Bonner (N.C.).
---------------------------------------------------------------------------
Equipment Expenses, Soil Conservation Service
Sec. 11.8 A proviso in the agriculture appropriation bill making
certain appropriations in the bill, allocated for work of the Soil
Conservation Service, available in part for procurement of
equipment for distribution to projects under the super
[[Page 5441]]
vision of such Service and for sale to other governmental
activities, was held to be legislation and to be unauthorized by
law.
On Apr. 19, 1943,(13) during consideration in the
Committee of the Whole of the Agriculture Department appropriation bill
(H.R. 2481), a point of order was raised against the following
provision:
---------------------------------------------------------------------------
13. 89 Cong. Rec. 3580, 78th Cong. 1st Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
Soil Conservation Service
To carry out the provisions of an act entitled ``An act to
provide for the protection of land resources against soil
erosion, and for other purposes.'' . . . Provided further, That
during the fiscal year for which appropriations are herein made
the appropriations for the work of the Soil Conservation
Service shall be available for meeting the expenses of
warehouse maintenance and the procurement, care, and handling
of supplies, materials, and equipment stored therein for
distribution to projects under the supervision of the Soil
Conservation Service and for sale and distribution to other
Government activities, the cost of such supplies and materials
or the value of such equipment (including the cost of
transportation and handling) to be reimbursed to appropriations
current at the time additional supplies, materials, or
equipment are procured from the appropriations chargeable with
the cost or value of such supplies, materials, or equipment:
Provided further, That reproductions of such aerial or other
photographs, mosaics, and maps as shall be required in
connection with the authorized work of the Soil Conservation
Service may be furnished at the cost of reproduction to
Federal, State, county, or municipal agencies requesting such
reproductions, the money received from such sales to be
deposited in the Treasury to the credit of this appropriation,
as follows:
Mr. [Clifford R.] Hope [of Kansas]: Mr. Chairman, I make the
point of order against the language in the paragraph beginning
``Provided further,'' line 12, page 71, and continuing to the end
of the paragraph, on the ground that the same is legislation on an
appropriation bill, and not authorized by law. . . .
Mr. [Malcolm C.] Tarver [of Georgia]: Mr. Chairman, the
language referred to is unquestionably out of order and for that
reason the point of order undoubtedly will lie, and be sustained.
We desire to offer an amendment which will include language that is
not out of order to replace the language stricken out by the point
of order.
The Chairman: (14) The gentleman from Kansas makes
the point of order that the language indicated by him beginning on
page 71, line 12, and concluding with the words ``as follows'',
page 72, line 8, is legislation. The Chair sustains the point of
order.
---------------------------------------------------------------------------
14. William M. Whittington (Miss.).
---------------------------------------------------------------------------
Research on Use of Potatoes
Sec. 11.9 An appropriation to permit the Department of Agriculture to
investigate and develop methods for the manufacture and utilization
of
[[Page 5442]]
starches from cull potatoes and surplus crops was conceded to be
unauthorized and was ruled out.
On Feb. 1, 1940,(15) the Committee of the Whole was
considering H.R. 8202, an Agriculture Department appropriation. At one
point the Clerk read as follows, and an amendment was offered as
indicated below:
---------------------------------------------------------------------------
15. 86 Cong. Rec. 947, 948, 76th Cong. 3d Sess.
---------------------------------------------------------------------------
Total, salaries and expenses, Bureau of Agriculture Chemistry
and Engineering, $868,775, of which amount not to exceed $457,602
may be expended for personal services in the District of Columbia,
and not to exceed $3,725 shall be available for the purchase of
motor-propelled and horse-drawn passenger-carrying vehicles
necessary in the conduct of field work outside the District of
Columbia.
Mr. [John G.] Alexander [of Minnesota]: Mr. Chairman, I offer
an amendment.
The Clerk read as follows:
Amendment offered by Mr. Alexander: On page 50, line 1,
after ``Columbia'', insert ``of which amount not less than
$25,000 nor more than $50,000 shall be used for the
investigation and development of methods for the manufacturing
and utilization of starches from cull potatoes and surplus
crops.''
Mr. [Clarence] Cannon of Missouri: Mr. Chairman, the amendment
is, of course, subject to a point of order. . . .
The Chairman: (16) The gentleman from Missouri makes
a point of order against the amendment offered by the gentleman
from Minnesota, the amendment providing for the investigation and
development of methods for the manufacture and utilization of
starches. Unless the gentleman from Minnesota can present some
authority in law for the appropriation, which has not been called
to the attention of the Chair, the Chair is prepared to rule. Does
the gentleman from Minnesota desire to be heard on the point of
order?
---------------------------------------------------------------------------
16. William P. Cole, Jr. (Md.).
---------------------------------------------------------------------------
Mr. Alexander: I will concede the point of order, Mr. Chairman.
The Chairman: The point of order is sustained.
Authorization in Organic Law
Sec. 11.10 An appropriation for collecting and disseminating
information and data with respect to potato production was held
authorized by the organic act creating the Department of
Agriculture which provided for acquisition and diffusion of
information on agriculture.
On Jan. 23, 1936,(17) the Committee of the Whole was
considering H.R. 10464, a supplemental appropriation bill. The
following proceedings took place:
---------------------------------------------------------------------------
17. 80 Cong. Rec. 964, 965, 74th Cong. 2d Sess.
---------------------------------------------------------------------------
Mr. [Lindsay C.] Warren [of North Carolina]: Mr. Chairman, I
offer an amendment, which I send to the desk.
[[Page 5443]]
The Clerk read as follows:
Amendment offered by Mr. Warren: On page 16, after line 5,
insert as a new paragraph the following:
``For the purpose of collecting and disseminating useful
information and data with respect to potato production and
marketing within the United States to be available to the
Secretary of Agriculture, the sum of $1,000,000 for the fiscal
year 1936: Provided, That no part of such fund will be used for
the enforcement of the Potato Act of 1935.''
Mr. [Claude A.] Fuller [of Arkansas]: Mr. Chairman, I desire to
make a point of order on the amendment just offered by the
gentleman from North Carolina.
The Chairman: (18) The gentleman will state it.
---------------------------------------------------------------------------
18. Jere Cooper (Tenn.).
---------------------------------------------------------------------------
Mr. Fuller: The amendment just offered is not germane. The bill
under consideration is an appropriation bill which appropriates
money to carry out legislation that has already been enacted and
which is now in force and effect. This is a distinct effort toward
new legislation. It calls for an investigation, based upon no law
that is now in existence and is not part and parcel of an
appropriation bill. Therefore, the amendment offered by the
gentleman from North Carolina is not germane to this bill. . . .
The Chairman: The Chair is prepared to rule unless the
gentleman from Virginia desires to be heard.
Mr. [Clifton A.] Woodrum [of Virginia]: No; Mr. Chairman.
The Chairman: The amendment offered by the gentleman from North
Carolina [Mr. Warren] is to that part of the bill making
appropriations for the Department of Agriculture. This would
necessarily relate to the organic law creating the Department of
Agriculture. The Chair has examined, in the brief time permitted
him, the law establishing the Department of Agriculture. The
organic act creating the Department may be found in title V,
section 511, United States Code, and contains this provision.
Establishing of departments. There shall be at the seat of
Government a Department of Agriculture, the general design and
duties of which shall be to acquire and to diffuse among the
people of the United States useful information on subjects
connected with agriculture, in the most general and
comprehensive sense of that word--
And so forth.
It occurs to the Chair that the specific language contained in
the organic act creating the Department of Agriculture would
clearly authorize an appropriation for the purpose sought to be
accomplished by the amendment here offered. The pending bill is an
appropriation bill, and the part of the bill now under
consideration relates to appropriations for the Department of
Agriculture. The Chair therefore feels that the amendment is
germane and that the appropriation is authorized by existing law.
The Chair overrules the point of order.
Organic Act as Authority for Research and Demonstration Projects
Sec. 11.11 Appropriations for agricultural engineering research, and
demonstration and application of methods
[[Page 5444]]
for prevention and control of dust explosions and fires during the
harvesting and storing of agricultural products were held to be
authorized by the organic act creating the Department of
Agriculture.
On Feb. 1, 1940,(19) the Committee of the Whole was
considering H.R. 8202, an Agriculture Department appropriation bill. At
one point the Clerk read as follows, and proceedings ensued as
indicated below:
---------------------------------------------------------------------------
19. 86 Cong. Rec. 935, 76th Cong. 3d Sess.
---------------------------------------------------------------------------
Agricultural engineering investigations: For investigations,
experiments, and demonstrations involving the application of
engineering principles to agriculture for the investigation,
development, experimental demonstration, for investigating and
reporting upon the different kinds of farm power and appliances;
upon farm domestic water supply and sewage disposal, upon the
design and construction of farm buildings and their appurtenances
and of buildings for processing and storing farm products; upon
farm power and mechanical farm equipment and rural electrification;
upon the engineering problems relating to the processing,
transportation, and storage of perishable and other agricultural
products; and upon the engineering problems involved in adapting
physical characteristics of farm land to the use of modern farm
machinery; for investigations of cotton ginning under the act
approved April 19, 1930 (7 U.S.C., 424, 425); for giving expert
advice and assistance in agricultural and chemical engineering; for
collating, reporting, and illustrating the results of
investigations and preparing, publishing and distributing
bulletins, plans, and reports, $294,469.
Mr. [Alfred L.] Bulwinkle [of North Carolina]: Mr. Chairman, I
offer an amendment, which I send to the Clerk's desk.
The Clerk read as follows:
Amendment offered by Mr. Bulwinkle: On page 48, after line
22, after the word ``demonstration'', in line 21, insert ``and
application of methods for the prevention and control of dust
explosions and fires during the harvesting, handling, milling,
processing, fumigating, and storing of agricultural products,
and of other dust explosions and resulting fires not otherwise
provided for, including fires in grain mills and elevators,
cotton gins, cotton-oil mills, and other structures; the
heating, charring, and ignition of agricultural products; fires
on farms and in rural communities and other explosions and
fires in connection with farm and agricultural operations.''
On page 49, line 13, strike out ``294,469'' and insert
$324,469.''
Mr. [John] Taber [of New York]: Mr. Chairman, I make the point
of order against the amendment that it is not authorized by law. .
. .
The Chairman: (20) The Chair is prepared to rule. .
. .
---------------------------------------------------------------------------
20. William P. Cole, Jr. (Md.).
---------------------------------------------------------------------------
The gentleman from North Carolina offers an amendment which has
been read, and against this amendment the gentleman from New York
[Mr. Taber] makes the point of order that it is not authorized by
law. Title V of the or
[[Page 5445]]
ganic law establishes the Department of Agriculture, and in section
511 is found this language:
There shall be at the seat of Government a Department of
Agriculture the general design and purpose of which shall be to
acquire and diffuse among the people of the United States
useful information on subjects connected with agriculture.
Without further reading of the organic law to which the Chair
has referred, the Chair is of opinion that the amendment is clearly
within the scope of the law.
The point of order is overruled.
Dutch Elm Disease
Sec. 11.12 An appropriation for control of Dutch elm disease and
bestowing certain new discretionary authority on the Secretary of
Agriculture to require matching state or local funds was conceded
not to be authorized by law and was ruled out on a point of order.
On Mar. 25, 1939,(1) the Committee of the Whole was
considering H.R. 5269, an Agriculture Department appropriation. At one
point, a point of order was raised against a paragraph in the bill and
proceedings ensued as indicated below:
---------------------------------------------------------------------------
1. 84 Cong. Rec. 3292, 3293, 76th Cong. 1st Sess.
---------------------------------------------------------------------------
Dutch elm disease eradication: For determining and applying
methods of eradication, control, and prevention of spread of the
disease of elm trees known as ``Dutch elm disease,'' $100,000:
Provided, That, in the discretion of the Secretary of Agriculture,
no expenditures from this appropriation shall be made for these
purposes until a sum or sums at least equal to such expenditures
shall have been appropriated, subscribed, or contributed by State,
county, or local authorities, or by individuals, or organizations
concerned: Provided further, That no part of this appropriation
shall be used to pay the cost or value of trees or other property
injured or destroyed.
Mr. [Malcom C.] Tarver [of Georgia]: Mr. Chairman, a point of
order.
The Chairman: (2) The gentleman will state it.
---------------------------------------------------------------------------
2. Wright Patman (Tex.).
---------------------------------------------------------------------------
Mr. Tarver: Mr. Chairman, I make a point of order as to the
language on pages 56 and 57 of the bill relating to the
appropriation for Dutch elm disease eradication on the ground it is
not authorized by existing legislation. . . .
The Chairman: Does the gentleman from Missouri desire to be
heard on the point of order?
Mr. [Clarence] Cannon [of Missouri]: I concede the point of
order, Mr. Chairman.
The Chairman: The point of order is sustained.
Moth Control
Sec. 11.13 An appropriation for gypsy and brown-tail moth control was
ruled out as not authorized by law.
[[Page 5446]]
On Mar. 25, 1939,(3) the Committee of the Whole was
considering H.R. 5269, an Agriculture Department appropriation. At one
point the Clerk read as follows, and proceedings ensued as indicated
below:
---------------------------------------------------------------------------
3. 84 Cong. Rec. 3292, 76th Cong. 1st Sess.
---------------------------------------------------------------------------
Gypsy and brown-tail moth control: For control and prevention
of spread of the gypsy and brown-tail moths, $250,000.
Mr. [Malcolm C.] Tarver [of Georgia]: Mr. Chairman, a point of
order.
The Chairman: (4) The gentleman will state it.
---------------------------------------------------------------------------
4. Wright Patman (Tex.).
---------------------------------------------------------------------------
Mr. Tarver: Mr. Chairman, I make a point of order against lines
5, 6, and 7, on page 56, having to do with gypsy and brown-tail
moth control on the ground that there is no legislation authorizing
this appropriation. . . .
The Chairman: Does the gentleman from Missouri [Mr. Cannon]
desire to be heard on the point of order?
Mr. [Clarence] Cannon [of Missouri]: Mr. Chairman, I concede
the point of order.
The Chairman: The point of order is sustained.
Purchase of Vehicles
Sec. 11.14 Language limiting the amount of an appropriation in an
Agriculture Department appropriation bill which could be used for
necessary vehicles was held authorized by law.
On Apr. 19, 1938,(5) the Committee of the Whole was
considering H.R. 10238, a Department of Agriculture appropriation bill.
During consideration of the bill, a point of order against the
following language was overruled:
---------------------------------------------------------------------------
5. 83 Cong. Rec. !5541-43, 75th Cong. 3d Sess.
---------------------------------------------------------------------------
For carrying out the provisions of the act entitled ``An act to
provide that the United States shall aid the States in the
construction of rural post roads, and for other purposes''. .
.$63,000,000, to be immediately available and to remain available
until expended . . . Provided further, That not to exceed $45,000
of the funds provided for carrying out the provisions of the
Federal Highway Act of November 9, 1921 (23 U.S.C. 21, 23), shall
be available for the purchase of motor-propelled passenger-carrying
vehicles necessary for carrying out the provisions of said act . .
. at a cost . . . not to exceed $1,200. . . .
Mr. [Wilburn] Cartwright [of Oklahoma]: Mr. Chairman, I make a
point of order against the language beginning on line 23, page 70,
starting with the words ``Provided further'', and ending on line 7,
page 71, with the sign and figures ``$1,200'', that it is not
authorized by law. . . .
The Chairman: (6) The Chair is ready to rule.
---------------------------------------------------------------------------
6. William L. Nelson (Mo.).
---------------------------------------------------------------------------
Since last Thursday, when the Chair passed upon a somewhat
similar proposition, an opportunity has been afforded to look more
fully into the precedents governing such cases. The
[[Page 5447]]
Chair has examined the precedents which may be found in Cannon's
Precedents, volume 7, sections 1127, 1193, 1197, 1235, and 1245.
The Chair finds that those decisions uniformly hold that an
appropriation for the hire or purchase of automobiles is in order
on a general appropriation bill. In this connection the Chair
desires to call attention to the fact that on February 8, 1929, a
point of order was raised against the provision in the naval
appropriation bill appropriating money for the hire of automobiles.
In overruling the point of order the Chairman, Mr. Luce, of
Massachusetts, stated:
The Chair is of opinion that by an attempt to put into the
law minute provision for all possible manner of expenditure the
size of the statute books would be largely increased, and that
by reason of the impossibility of foresight in matter of detail
more harm than good would result. It has been the uniform
ruling of preceding Chairmen, so far as the Chair can
ascertain, that these minor and incidental objects of
expenditures are natural to the conduct of the business
establishment concerned.
The Chair also desires to call attention to the fact that on
April 23, 1937, Mr. Taber, of New York, made a point of order
against an identical provision in the agriculture appropriation
bill authorizing the expenditure of not to exceed $45,000 for the
purchase of automobiles by the Bureau of Public Roads and contended
that there was no authorization of law for the purchase of
automobiles by that Bureau.
Mr. Cannon of Missouri and Mr. Umstead argued that the
provision was purely a limitation on an appropriation and that,
without it, the Bureau would have authority to spend the entire
appropriation for automobiles if they so desired.
The Chairman, Mr. Hancock of North Carolina, in overruling the
point of order stated:
The Chair overrules the point of order on the ground that
the proviso constitutes a limitation, without which the
Secretary could spend any amount within the total of the
appropriation for this purpose.
The Chair, in view of the precedents just cited, thinks that
the proviso to which the point of order has been directed is in
order and overrules the point of order made by the gentleman from
Oklahoma.
Shelter-belt Trees to Prevent Erosion
Sec. 11.15 An appropriation ``for completing shelter-belt investigation
and for the free distribution of shelter-belt trees to farmers''
was held to be authorized by law.
On Feb. 26, 1936,(7) The Committee of the Whole was
considering H.R. 11418, an Agriculture Department appropriation bill.
At one point the Clerk read as follows, and proceedings ensued as
indicated below:
---------------------------------------------------------------------------
7. 80 Cong. Rec. 2895, 2896, 74th Cong. 2d Sess.
---------------------------------------------------------------------------
Forest influences: For investigations at forest experiment
stations and elsewhere for determining the possibility of
increasing the absorption of rainfall
[[Page 5448]]
by the soil, and for devising means to be employed in the
preservation of soil, the prevention or control of destructive
erosion, and the conservation of rainfall on forest or range lands,
$99,152. . . .
Mr. [Phil] Ferguson [of Oklahoma]: Mr. Chairman, I offer an
amendment. . . .
The Clerk read as follows:
Amendment by Mr. Ferguson: Page 48, line 3, after
``$99,15'', strike out the period, insert a comma, and add the
following: ``and in addition thereto, $180,000 for completing
shelter-belt investigation and for the free distribution of
shelter-belt trees to farmers.''
Mr. [John] Taber [of New York]: Mr. Chairman, I make the point
of order against the amendment that it is legislation calling for
an appropriation not authorized by law. There is no authority in
anything I have ever seen to provide for free distribution of trees
or for a shelter belt. . . .
The Chairman: (8) The Chair is ready to rule.
---------------------------------------------------------------------------
8. Sam D. McReynolds (Tenn.).
---------------------------------------------------------------------------
The Congress in the last session passed an act--Public, No.
46--to provide for the protection of land resources against soil
erosion, and for other purposes. This act provides that--
It is hereby recognized that the wastage of soil and
moisture resources on farm, grazing, and forest lands of the
Nation, resulting from soil erosion, is a menace to the
national welfare and that it is hereby declared to be the
policy of Congress to provide permanently for the control and
prevention of soil erosion and thereby to preserve natural
resources, control floods, prevent impairment of reservoirs,
and maintain the navigability of rivers and harbors, protect
public health, public lands, and relieve unemployment, and the
Secretary of Agriculture, from now on, shall coordinate and
direct all activities with relation to soil erosion, and in
order to effectuate this policy is hereby authorized, from time
to time--
(1) To conduct surveys, investigations, and research
relating to the character of soil erosion and the preventive
measures needed, to publish the results of any such surveys,
investigations, or research, to disseminate information
concerning such methods, and to conduct demonstrational
projects in areas subject to erosion by wind or water.
(2) To carry out preventive measures, including, but not
limited to, engineering operations, methods
of cultivation, the growing of vegetation, and changes in use
of lands. . . .
The Chair is of the opinion that this proposed appropriation is
authorized by the provision of law just quoted, and, therefore,
overrules the point of order.
Weather Bureau Buildings; Equipment and Repair
Sec. 11.16 An appropriation for the purchase and installation of
instruments, and the construction or repair of buildings of the
Weather Bureau was held to be authorized by law.
On Feb. 26, 1936,(9) The Committee of the Whole was
consid
[[Page 5449]]
ering H.R. 11418, an Agriculture Department appropriation bill. The
Clerk read as follows:
---------------------------------------------------------------------------
9. 80 Cong. Rec. 2884, 2885, 74th Cong. 2d Sess.
---------------------------------------------------------------------------
General weather service and research: For necessary expenses
incident to collecting and disseminating meteorological,
climatological, and marine information, and for investigations in
meteorology, climatology, seismology, evaporation, and aerology in
the District of Columbia and elsewhere . . . $2,228,655. . . .
Mr. [J. Mark] Wilcox [of Florida]: Mr. Chairman, I offer an
amendment.
The Clerk read as follows:
Amendment offered by Mr. Wilcox: Page 21, between lines 20
and 21, add a new paragraph to read as follows:
``In addition to all other sums herein appropriated for
that purpose, there is hereby appropriated the sum of $25,000
for the purchase and installation of instruments, the
construction, extension, and repair of buildings, and payment
of wages, salaries, and other expenses incident to the
accumulation of information and the issuance of warnings
concerning storms and hurricanes originating in the South
Atlantic and Caribbean areas.''. . .
Mr. [John] Taber [of New York]: Mr. Chairman, I reserve a point
of order against the amendment, that it is legislation on an
appropriation bill and not authorized by law. . . .
The Chairman: (10) The Chair is ready to rule. The
statute (U.S.C., title 15, sec. 313) provides, among other things,
the following:
---------------------------------------------------------------------------
10. Sam D. McReynolds (Tenn.).
---------------------------------------------------------------------------
The Chief of the Weather Bureau, under the direction of the
Secretary of Agriculture, shall have charge of the forecasting
of the weather . . . the distribution of meteorological
information in the interest of agriculture and commerce, the
taking of such meteorological observations as may be necessary
to establish and record the climatic condition of the United
States or as are essential to the proper execution of the
foregoing duties . . . and for such purposes to . . . establish
meteorological offices and stations.
The Chair is of opinion that the amendment does not constitute
legislation on an appropriation bill but is an appropriation
authorized by the provisions of the statute the Chair has quoted.
The point of order is overruled.
CHAPTER 26
Unauthorized Appropriations; Legislation on Appropriation Bills
B. APPROPRIATIONS FOR UNAUTHORIZED PURPOSES
Sec. 12. Commerce
Census Bureau Data
Sec. 12.1 The law authorizing the Director of the Bureau of the Census
to compile and publish a census of manufacturers, mineral
industries, and other businesses was held sufficiently broad to
authorize an appropriation for publishing monthly reports on coffee
stocks on hand in the United States.
On May 24, 1955,(11) the Committee of the Whole was
considering H.R. 6367, a Department of
[[Page 5450]]
Commerce and related agencies appropriation bill. The following
proceedings took place:
---------------------------------------------------------------------------
11. 101 Cong. Rec. 6912-14, 84th Cong. 1st Sess.
---------------------------------------------------------------------------
Mrs. [Leonor Kretzer] Sullivan [of Missouri]: Mr. Chairman, I
offer an amendment.
The Clerk read as follows:
Amendment offered by Mrs. Sullivan: On page 2, line 12,
strike out ``$6,200,000'' and insert in lieu thereof the
following: ``$6,225,000, of which $25,000 shall be for the
purpose of gathering and publishing monthly reports of coffee
stocks on hand in the United States.''
Mr. [Frank T.] Bow [of Ohio]: Mr. Chairman, I make a point of
order against the amendment that it places additional
responsibilities upon the Secretary to publish monthly reports. I
find no basic legislation which would authorize this sort of a
survey to be made.
The Chairman: (12) Does the gentlewoman from
Missouri care to be heard on the point of order?
---------------------------------------------------------------------------
12. Brooks Hays (Ark.).
---------------------------------------------------------------------------
Mrs. Sullivan: Yes, Mr. Chairman.
Under Public Law 671 of the 80th Congress, it has been
authorized that these reports and statistics be made. I had a
letter from the Department of Commerce, Bureau of the Census,
stating that they are authorized to make this study, but they do
not have sufficient funds. I looked this matter up last year when
the same thing was before the House.
Mr. Bow: Mr. Chairman, I will reserve the point of order. . .
Mrs. Sullivan: Mr. Chairman, my amendment is intended to close
a serious gap in our statistical information involving America's
biggest import item--coffee. Everyone knows how we were victimized
from late 1953 to mid-1954 and thereafter by a fake shortage of
coffee. Hoarding and speculation ran rampant, and the consumer was
held up and robbed. Hundreds of millions of dollars were taken out
of the pockets of American consumers in tribute to a shortage which
never existed. . . . Also in this connection I wish to include as
part of my remarks a letter [sent to Mrs. Sullivan by the Director
of the Bureau of the Census]:
Dear Mrs. Sullivan: This is in reply to your letter
concerning the Census Bureau and coffee statistics dictated
over the phone to my secretary today.
You ask what the Census Bureau can or will do in regard to
collecting statistics on coffee supplies in the United States.
The answer in general is that the Census Bureau has the legal
authority but lacks the appropriation to conduct a monthly
survey on coffee stocks in the hands of importers and roasters.
Under the law if the data are gathered more often than once a
year the filing of a return is wholly voluntary.
The cost of compiling a monthly report on coffee stocks in
the hands of importers and roasters would be approximately
$25,000 to $30,000 per annum. The exact figure would depend
largely on the amount of effort which would have to be expended
in obtaining returns and in keeping the mailing list up-to-
date. Incidentally, a quarterly survey would cost approximately
$10,000 per annum.
The only appropriation made to the Census Bureau which
could be legally employed to finance a coffee survey would be
the item ``salaries and expenses.'' There is currently no
provision in this item for a coffee survey. . . .
[[Page 5451]]
The Bureau will be glad to consider conducting a quarterly
coffee stock reporting program in the coming fiscal year
provided there is general concurrence amongst the interested
agencies of the Government that this is a desirable project in
relation to other projects as yet unfinanced, and as indicated
above, provided that the continued cooperation of holders of
the coffee stocks can be obtained. . . .
The Chairman: The gentleman from Ohio makes a point of order
against the amendment offered by the gentlewoman from Missouri on
the ground that it is legislation on an appropriation bill and not
authorized.
The gentlewoman from Missouri supports her contention by citing
Public Law 671 of the 80th Congress. The Chair has had opportunity
to refer to this public law. It states that the Director of the
Bureau of the Census is authorized to ``compile and publish
censuses of manufacturers, mineral industries, and other
businesses.'' The Chair is of opinion that the language of this
section is sufficiently broad to cover the proposed amendment, and
that the amendment offered by the gentlewoman from Missouri is in
order.
The point of order is overruled.
Sample Surveys of Labor Force
Sec. 12.2 Sample surveys by the Census Bureau to estimate the size and
characteristics of the nation's labor force and population were
conceded to be unauthorized by law, and a point of order against
language providing therefore was upheld.
On Mar. 16, 1945,(13) during consideration in the
Committee of the Whole of a general appropriation bill (H.R. 2603), a
point of order was raised against the following provision:
---------------------------------------------------------------------------
13. 91 Cong. Rec. 2368, 79th Cong. 1st Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
Compiling census reports and so forth: For salaries and
expenses necessary for securing information for and compiling
and publishing the census reports provided for by law, the
collection, compilation and periodic publication of statistics
showing United States exports and imports, (and for sample
surveys throughout the United States for the purpose of
estimating the size and characteristics of the Nation's labor
force and population, including personal services at the seat
of government. . . .)
Mr. [Robert F.] Jones [of Ohio]: Mr. Chairman, I make the point
of order against the language on page 56, beginning with the words
``and for'' in line 12, continuing through lines 13, 14, and 15,
and so much of line 16 up to and including the word ``Government''
on the ground that it is legislation on an appropriation bill.
There is no authority in law for it.
Mr. [Louis C.] Rabaut [of Michigan]: Mr. Chairman, I concede
the point of order.
The Chairman: (14) The point of order is sustained.
---------------------------------------------------------------------------
14. Wilbur D. Mills (Ark.).
---------------------------------------------------------------------------
Investigations by Tariff Commission
Sec. 12.3 The proponent of an amendment to provide funds
[[Page 5452]]
for the Commission on Tariffs to make investigations abroad ``to
determine the wage levels, cost of production and working
conditions on articles imported to assist the committee in
processing claims for injury by domestic producers,'' having the
burden of showing authority for the appropriation, could cite no
authorization therefor, and the amendment was held not to be in
order. At a later time, the proponent cited the proper
authorization and the amendment was considered by unanimous
consent.
On May 7, 1957,(15) during consideration in the
Committee of the Whole of a supplemental appropriation bill (H.R.
7221), a point of order was raised against the following amendment:
---------------------------------------------------------------------------
15. 103 Cong. Rec. 6430, 6431, 6446, 85th Cong. 1st Sess.
---------------------------------------------------------------------------
Mr. [Cleveland M.] Bailey [of West Virginia]: Mr. Chairman, I
offer an amendment.
The Clerk read as follows:
Amendment offered by Mr. Bailey: Page 4, line 5, strike out
``$25,000'' and insert ``$50,000. Of this amount the sum of
$25,000 is to be used to make necessary investigations abroad
to determine the wage levels, costs of production and working
conditions on articles imported from abroad to assist the
Commission in processing claims for injury by domestic
producers under section 7 of the Reciprocal Trade Agreements
Act.''. . .
Mr. [Prince H.] Preston [Jr., of Georgia]: Mr. Chairman, I make
a point of order against the amendment on the ground that there is
no authority for the Tariff Commission to make an investigation
abroad into the working conditions under which foreign commodities
are produced.
The Chairman: (16) will the gentleman from West
Virginia cite to the Chair the authority for the Commission to make
an investigation?
---------------------------------------------------------------------------
16. Frank N. Ikard (Tex.).
---------------------------------------------------------------------------
Mr. Bailey: Mr. Chairman, the original item of $25,000 in the
proposal before us now covers not only the payment of salaries but
covers the payment of expenses, and I say this would be an expense
on the Tariff Commission and, therefore, it is germane to the
statement in the appropriations.
The Chairman: The Chair was inquiring as to the authority of
the Commission to make the investigation that the amendment
contemplates.
Mr. Bailey: They have the authority to make investigations.
They have no money to make it. I was trying to give them some
money.
The Chairman: Do they have authority to make investigations
abroad?
Mr. Bailey: Well, why not?
The Chairman: The Chair is asking the question of the
gentleman.
Mr. Bailey: I could not advise the Chairman to that effect.
But, I do not see why they should be limited to this country
because apparently nobody else is. If somebody wants some
information, they go abroad and get it. I
[[Page 5453]]
think the Tariff Commission should be afforded the same
opportunity. Members of the Congress, if you want to sit idly by
and see the major part of your small American industry, which is
the backbone of our country, driven out of business, you just
ignore a proposition like this.
The Chairman: In view of the fact that there is no authority
cited for the Commission to make the investigations contemplated in
the amendment, the Chair sustains the point of order.
Parliamentarian's Note: After the reading of the bill for
amendment, but prior to the rising of the Committee of the Whole, the
proponent of the amendment found authority in law for the proposed
investigations and, by unanimous consent, the amendment was reoffered
and considered. Mr. Bailey stated:
Mr. Chairman, I think I owe it to my colleagues in the House to
make clear to them that the Tariff Commission does have authority
to make investigations abroad and I shall take a part of the time
allotted to me in support of this amendment to read section 704 of
the basic Tariff Act of 1916. It reads as follows:
That the commission shall have power to investigate the
tariff relations between the United States and foreign
countries, commercial treaties, preferential provisions,
economic alliances, the effect of export bounties and
preferential transportation rates, the volume of importations
compared with domestic production and consumption, and
conditions, causes, and effects relating to competition of
foreign industries with those of the United States, including
dumping and cost of production.
So it is clearly evident that the Tariff Commission does have
authority to make these investigations abroad.
Scientific and Technological Aid for Business
Sec. 12.4 Language in a Departments of State, Justice, Commerce, and
the Judiciary appropriation bill providing appropriations ``for
necessary expenses in the performance of activities and services
relating to technological development as an aid to business in the
development of foreign and domestic commerce'' was conceded to be
unauthorized by law.
On May 14, 1947,(17) the Committee of the Whole was
considering H.R. 3311. At one point the Clerk read as follows, and
proceedings ensued as indicated below:
---------------------------------------------------------------------------
17. 93 Cong. Rec. 5303, 80th Cong. 1st Sess.
---------------------------------------------------------------------------
Technical and scientific services: For necessary expenses in
the performance of activities and services relating to
technological development as an aid to business in the development
of foreign and domestic commerce, including all the objects for
which the appropriation ``Salaries and expenses, office of the
Secretary,'' is available (not to exceed
[[Page 5454]]
$25,000), for services as authorized by section 15 of the act of
August 2, 1946 (Public Law 600), and not to exceed $60,000 for
printing and binding, $1,700,000, of which not to exceed $500,000
may be transferred to the National Bureau of Standards for testing
and other scientific studies.
Mr. [Leslie C.] Arends [of Illinois]: Mr. Chairman, a point of
order. I make a point of order against the language on lines 3 to
14, inclusive, on page 42 that it is legislation on an
appropriation bill and not authorized by law.
Mr. [Karl] Stefan [of Nebraska]: Mr. Chairman, we concede the
point of order.
The Chairman: (18) The point of order is conceded,
and the Chair sustains the point of order.
---------------------------------------------------------------------------
18. Carl T. Curtis (Nebr.).
---------------------------------------------------------------------------
Officials' Expenses
Sec. 12.5 Language in an appropriation bill providing for maintenance
and operation of air navigation facilities, appropriating ``not to
exceed 3 cents per mile for travel in privately owned automobiles
within the limits of their official posts of duty, of employees
engaged in the maintenance and operation of remotely controlled
air-navigation facilities,'' was ruled out as unauthorized when the
manager of the bill conceded the point of order.
On Mar. 16, 1945,(19) during consideration in the
Committee of the Whole of a general appropriation bill (H.R. 2603), a
point of order was raised against the following provision:
---------------------------------------------------------------------------
19. 91 Cong. Rec. 2371, 79th Cong. 1st Sess.
---------------------------------------------------------------------------
Maintenance and operation of air-navigation facilities: For
necessary expenses of operation and maintenance of air-navigation
facilities and air-traffic control, including personal services in
the District of Columbia and elsewhere; purchase (not to exceed
15), hire, maintenance, repair, and operation of passenger-carrying
automobiles; and not to exceed 3 cents per mile for travel, in
privately owned automobiles within the limits of their official
posts of duty, of employees engaged in the maintenance and
operation of remotely controlled air-navigation facilities;
$24,000,000. . . .
Mr. [Edward H.] Rees [of Kansas]: Mr. Chairman, I make the
point of order against the language beginning with the words ``and
not'', appearing on page 58, line 25, down to and including the
word ``facilities'' on page 59, line 4, on the ground that it is
legislation on an appropriation bill.
Mr. [Louis C.] Rabaut [of Michigan]: I concede the point of
order, Mr. Chairman.
The Chairman: (20) the Chair sustains the point of
order.
---------------------------------------------------------------------------
20. Wilbur D. Mills (Ark.).
---------------------------------------------------------------------------
Earmarking for ``Attendance at Meetings''
Sec. 12.6 An appropriation, for the office of the Secretary of
[[Page 5455]]
Commerce, for expenses of attendance at meetings of organizations
concerned with the work of the office of the Secretary is
authorized by law.
On Mar. 16, 1945,(1) the Committee of the Whole was
considering H.R. 2603, an appropriation bill for the Federal Loan
Agency and the Departments of State, Justice, Commerce, and the
Judiciary. The following proceedings took place:
---------------------------------------------------------------------------
1. 91 Cong. Rec. 2367, 2368, 79th Cong. 1st Sess.
---------------------------------------------------------------------------
Salaries and expenses: For all necessary expenses of the office
of the Secretary of Commerce (hereafter in this title referred to
as the Secretary) including personal services in the District of
Columbia . . . not exceeding $2,000 for expenses of attendance at
meetings of organizations concerned with the work of the office of
the Secretary; $570,000. . . .
Mr. [Louis C.] Rabaut [of Michigan]: Mr. Chairman, that is
covered by title V, section 83. . . .
Mr. [John] Taber [of New York]: Mr. Chairman, section 83 of
title V is a restriction upon the use of funds carried in an
appropriation bill. It is not in any sense an authority to the
Appropriations Committee to make any appropriation. It simply says
that none of the funds that are appropriated for any purpose shall
be used for attendance at meetings unless there is specific
appropriation for that purpose. It in no way and in no manner
attempts or does authorize any appropriation to be made for the
purpose of attendance at meetings. . . .
The Chairman: (2) the Chair is ready to rule.
---------------------------------------------------------------------------
2. Wilbur D. Mills (Ark.).
---------------------------------------------------------------------------
It is the opinion of the Chair that the language referred to by
the gentleman from New York, which the Chair desires to read for
the information of the committee, permits the appropriation
contained in the language objected to by the gentleman from
Pennsylvania.
The Chair will read the language:
No money appropriated by any act shall be expended for
membership fees or dues of any officer or employee of the
United States or of the District of Columbia in any society or
association or for expenses of attendance by any person at any
meeting or convention of members of any society or association
unless such fees or expenses are authorized to be paid by
specific appropriation for such purposes or are provided for in
express terms in some general appropriation.
The Chair will rule, unless the gentleman from New York desires
to be heard further.
Mr. Taber: Mr. Chairman, I would like to say that the language
the Chair has read is prohibitive language, designed to prevent the
use of general funds for the purpose of attendance at meetings.
It does not in any way authorize appropriations to be made, and
they can only be made as the result of language which is specific
for that purpose. It seems to me, Mr. Chairman, that language does
not in any way authorize anything to be done.
[[Page 5456]]
The Chairman: The Chair must hold, however, that the language
referred to in the latter part of the sentence clearly permits the
Committee on Appropriations to specifically, in express language,
appropriate for attendance at meetings of organizations as carried
in the bill on page 54, lines 19, 20, and 21, and therefore
overrules the point of order made by the gentleman from New York.
Civilian Conservation Corps; Liquidation Expenses of
Sec. 12.7 The House having refused to appropriate funds for the
continuance of the Civilian Conservation Corps, an amendment making
an appropriation for the liquidation of the Civilian Conservation
Corps was held authorized.
On June 5, 1942,(3) the Committee of the Whole was
considering H.R. 7181, a Labor Department and federal security
appropriation. At one point the Clerk read as follows, and proceedings
ensued as indicated below:
---------------------------------------------------------------------------
3. 88 Cong. Rec. 4940, 77th Cong. 2d Sess.
---------------------------------------------------------------------------
Amendment offered by Mr. [Malcolm C.] Tarver [of Georgia]: On
page 18, line 1, after the title ``Civilian Conservation Corps'',
insert ``For all necessary expenses to provide for the liquidation
of the Civilian Conservation Corps as authorized under the
provisions of the act of June 28, 1937, as amended (16 U.S.C. ch.
3A), including personal service in the District of Columbia and
elsewhere; the conservation and disposition of all of the property
of whatever type in use by said Civilian Conservation Corps,
including camp buildings, accessories, equipment, and machinery of
all types, and for such travel and other necessary expenses as may
be incurred in connection with the conservation and liquidation of
said Civilian Conservation Corps, $500,000.''
Mr. [Francis H.] Case of South Dakota: Mr. Chairman, a point of
order.
The Chairman: (4) the gentleman will state it.
---------------------------------------------------------------------------
4. Howard W. Smith (Va.).
---------------------------------------------------------------------------
Mr. Case of South Dakota: Mr. Chairman, I make the point of
order that there is no authority in law for the liquidation of the
Civilian Conservation Corps.
The Chairman: The Chair overrules the point of order.
Authorization Not Yet Signed into Law
Sec. 12.8 Funds in a general appropriation bill for expenses of the
National Fire Prevention and Control Administration were conceded
to be unauthorized by law for fiscal 1979 and were ruled out in
violation of Rule XXI clause 2.
On June 14, 1978,(5) during consideration in the
Committee of the
[[Page 5457]]
Whole of the Departments of State, Justice, Commerce, and the Judiciary
appropriation bill (H.R. 12934), a point of order was raised and
sustained against the following provision:
---------------------------------------------------------------------------
5. 124 Cong. Rec. 17626, 95th Cong. 2d Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
National Fire Prevention and Control Administration
operations, research, and administrations
For expenses necessary to carry out the provisions of the
Federal Fire Prevention and Control Act of 1974, as amended,
$15,660,000, to remain available until expended.
Mr. [John H.] Rousselot [of California]: Mr. Chairman, on the
basis of clause 2, rule XXI, I make the point of order that this is
an unauthorized appropriation, and has not been authorized by law.
The Chairman: (6) Does the gentleman from West
Virginia (Mr. Slack) desire to be heard on the point of order?
---------------------------------------------------------------------------
6. George E. Brown, Jr. (Calif.).
---------------------------------------------------------------------------
Mr. [John M.] Slack: Mr. Chairman, I concede the point of
order.
The Chairman: The point of order is conceded and sustained.
The paragraph is stricken from the bill.
Parliamentarian's Note: At the time this appropriation bill was
considered, both Houses had passed the annual authorization bill for
fiscal 1979 but it was not signed into law until Oct. 5, 1978 (Public
Law No. 95-422).
Sec. 12.9 Funds for necessary expenses of the National Bureau of
Standards (including amounts for the standard reference data
program) in a general appropriation bill were conceded to be
unauthorized by law for fiscal 1979 and were ruled out in violation
of Rule XXI clause 2.
On June 14, 1978,(7) during consideration in the
Committee of the Whole of the Departments of State, Justice, Commerce,
and the Judiciary appropriation bill (H.R. 12934), a point of order was
sustained against the following provision:
---------------------------------------------------------------------------
7. 124 Cong. Rec. 17626, 95th Cong. 2d Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
Science and Technical Research
scientific and technical research and services
For necessary expenses of the National Bureau of Standards
including the acquisition of buildings, grounds, and other
facilities; and the National Technical Information Service;
$82,780,000, to remain available until expended, of which not
to exceed $3,300,000 may be transferred to the ``Working
Capital Fund'', National Bureau of Standards, for additional
capital.
Mr. [John H.] Rousselot [of California]: Mr. Chairman, on the
basis of clause 2, rule XXI, I make a point of order that this is
an unauthorized ap
[[Page 5458]]
propriation and has not been authorized by law.
The Chairman: (8) Does the gentleman from West
Virginia care to be heard on the point of order?
---------------------------------------------------------------------------
8. George E. Brown, Jr. (Calif.).
---------------------------------------------------------------------------
Mr. [John M.] Slack [of West Virginia]: Mr. Chairman, I concede
the point of order.
The Chairman: The point of order is conceded and sustained.
Parliamentarian's Note: At the time this appropriation bill was
considered in the House, both Houses had passed a three-year
authorization bill for the standard reference data program in the
Bureau of Standards, but it was not signed into law until July 21, 1978
(Public Law No. 95-322).
Sec. 12.10 Pursuant to law (15 USC Sec. 57c) for fiscal years ending
after 1977, there may be appropriated to carry out the functions of
the Federal Trade Commission only such sums as the Congress may
thereafter authorize by law (thus requiring specific subsequently
enacted authorizations for the operations of the Commission and not
permitting appropriations under Rule XXI clause 2 to be authorized
by the ``organic statute'' creating the Commission); appropriations
for the functions of the Federal Trade Commission for fiscal 1979
were conceded not to be authorized by law and were ruled out in
violation of Rule XXI clause 2.
On June 14, 1978,(9) during consideration in the
Committee of the Whole of H.R. 12934 (Departments of State, Justice,
Commerce, and the Judiciary appropriation for fiscal 1979), a point of
order was sustained against the following provision in the bill:
---------------------------------------------------------------------------
9. 124 Cong. Rec. 17629, 17630, 95th Cong. 2d Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
For necessary expenses of the Federal Trade Commission,
including uniforms or allowances therefor, as authorized by 5
U.S.C. 5901-5902; services as authorized by 5 U.S.C. 3109; hire
of passenger motor vehicles; and not to exceed $1,500 for
official reception and representation expenses; $63,600,000. .
. .
Mr. [Elliott] Levitas [of Georgia]: Mr. Chairman, I make a
point of order against page 42, lines 1 through 20, based on rule
XXI, clause 2, of the rules of the House. Mr. Chairman, there is
currently no authorization for the Federal Trade Commission, and as
such the language in this bill providing for the Federal Trade
Commission is not in order.
Mr. [John M.] Slack [of West Virginia]: I concede the point of
order, Mr. Chairman.
The Chairman: (10) The point of order is conceded,
sustained, and the paragraph is stricken.
---------------------------------------------------------------------------
10. George E. Brown, Jr. (Calif.).
---------------------------------------------------------------------------
[[Page 5459]]
Sec. 12.11 Pursuant to law (19 USC Sec. 1330(e)), appropriations for
the International Trade Commission must be specifically authorized
by laws enacted after 1975; funds in a general appropriation bill
for the International Trade Commission were conceded to be
unauthorized by law for fiscal 1979 and were ruled out in violation
of Rule XXI clause 2.
On June 14, 1978,(11) during consideration of H.R. 12934
(Departments of State, Justice, Commerce, and the Judiciary
appropriation for fiscal 1979), a point of order was sustained against
the following provision:
---------------------------------------------------------------------------
11. 124 Cong. Rec. 17630, 95th Cong. 2d Sess.
---------------------------------------------------------------------------
For necessary expenses of the International Trade Commission,
including hire of passenger motor vehicles and services as
authorized by 5 U.S.C. 3109, $12,800,000.
Mr. [John H.] Rousselot [of California]: Mr. Chairman, on the
basis of rule XXI, clause 2, I make a point of order that this is
an unauthorized appropriation and has not been authorized by law.
Mr. [John M.] Slack [of West Virginia]: Mr. Chairman, I concede
the point of order.
The Chairman: (12) The point of order is conceded,
sustained, and the paragraph is stricken.
---------------------------------------------------------------------------
12. George E. Brown, Jr. (Calif.).
---------------------------------------------------------------------------
CHAPTER 26
Unauthorized Appropriations; Legislation on Appropriation Bills
B. APPROPRIATIONS FOR UNAUTHORIZED PURPOSES
Sec. 13. Defense and Veterans
Veterans' Administration
Sec. 13.1 Language in a general appropriation bill including funds for
Veterans' Administration operating expenses, providing expenses for
the issuance of memorial certificates to families of deceased
veterans, was conceded to be unauthorized by law.
On May 11, 1965,(13) during consideration in the
Committee of the Whole of the independent offices appropriations bill
(H.R. 7997), a point of order was raised against the following
provision:
---------------------------------------------------------------------------
13. 111 Cong. Rec. 10166, 89th Cong. 1st Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
Veterans Administration
General operating expenses
For necessary operating expenses of the Veterans
Administration, not otherwise provided for, including expenses
incidental to securing employment for [and recognition of war
veterans;] uniforms or allowances therefor, as authorized by
law; not to exceed $1,000 for official reception and
representation expenses; purchase of one passenger motor
vehicle (medium sedan for replacement only) at not to exceed
$3,000; and reimbursement of the General Services
Administration for security guard services; $157,000,000:
Provided, That no part of this appropriation shall be used to
pay in excess of
[[Page 5460]]
twenty-two persons engaged in public relations work. . . .
Mr. [Robert J.] Dole [of Kansas]: Mr. Chairman, I make a point
of order against the language on page 39, commencing in line 18
with the words ``and recognition of war veterans'' on the basis
that it is legislating in an appropriation bill and not authorized.
The Chairman: (14) Does the gentleman from Texas
[Mr. Thomas] wish to be heard on the point of order?
---------------------------------------------------------------------------
14. Richard Bolling (Mo.).
---------------------------------------------------------------------------
Mr. [Albert] Thomas: Does the gentleman wish that the words
``war veterans'' go with it? If the gentleman does, the gentleman's
point of order is good, if the gentleman insists upon it. I hope
the gentleman does not. The gentleman knows what the program is. It
is not too expensive. It is a recognition to which certainly any
deceased veteran's family is entitled. But if my distinguished
friend insists upon it, we have to admit the point of order is
good, because it is.
Mr. Dole: I will say to the gentleman that I shall insist upon
the point of order. There is legislation pending now and the
projected cost of this little program is $4.2 million. On that
basis, Mr. Chairman, I insist upon the point of order.
The Chairman: The gentleman makes a point of order against the
language on line 18 and the point of order is good and the Chair
sustains it.
Committee on Fair Employment Practice
Sec. 13.2 An amendment to a war agencies appropriation bill making an
appropriation for the Fair Employment Practice Committee was held
unauthorized by law.
On June 8, 1945,(15) the Committee of the Whole was
considering H.R. 3368, a war agencies appropriation.
---------------------------------------------------------------------------
15. 91 Cong. Rec. 5831, 79th Cong. 1st Sess.
---------------------------------------------------------------------------
Amendment offered by Mr. Marcantonio: Page 35, after line 24,
insert the following new paragraph:
``Fair Employment Practice Committee: For all necessary
salaries and expenses, $599,000.''
Mr. [John E.] Rankin [of Mississippi]: Mr. Chairman, a point of
order.
The Chairman: (16) The gentleman will state the
point of order.
---------------------------------------------------------------------------
16. John J. Sparkman (Ala.).
---------------------------------------------------------------------------
Mr. Rankin: Mr. Chairman, I make the point of order that the
amendment is not germane, it is not in order on this bill, it is
legislation on an appropriation bill and it is not authorized by
law. . . .
The Chairman: The point of order is well taken. It is . . . not
authorized by law. The point of order is sustained.
Foreign Military Assistance
Sec. 13.3 Appropriations to enable the President, through such
departments or agencies of the government as he might designate,
further to carry out the provisions of the act
[[Page 5461]]
of Mar. 11, 1941, to promote the defense of the United States, were
held authorized by the act cited and were not a conferral of new
authority on the President.
On Dec. 5, 1941,(17) the Committee of the Whole was
considering H.R. 6159, a supplemental appropriation for national
defense. At one point the Clerk read as follows:
---------------------------------------------------------------------------
17. 87 Cong. Rec. 9482, 77th Cong. 1st Sess.
---------------------------------------------------------------------------
Title III--Defense Aid
Sec. 301. To enable the President, through such departments or
agencies of the Government as he may designate, further to carry
out the provisions of an act to promote the defense of the United
States, approved March 11, 1941, and for each and every purpose
incident to or necessary therefor, the following sums for the
following respective purposes, namely:
(a) For the procurement, by manufacture or otherwise, of
defense articles, information, and services for the government of
any country whose defense the President deems vital to the defense
of the United States, and the disposition thereof, including all
necessary expenses in connection therewith, as follows:
(1) Ordnance and ordnance stores, supplies, spare parts, and
materials, including armor and ammunition and components thereof,
$830,507,246. . . .
(6) Facilities and equipment for the manufacture, production,
or operation of defense articles and for otherwise carrying out the
purposes of the act of March 11, 1941, including the acquisition of
land, and the maintenance and operation of such facilities and
equipment, $125,000,000. . . .
(c) Each of the foregoing appropriations shall be additional
to, and consolidated with, the appropriations for the same purposes
contained in section 1 (a) of the Defense Aid Supplemental
Appropriation Act, 1941, and section 101 (a) of the Defense Aid
Supplemental Appropriation Act, 1942, and the proviso in section
101 (f) of such latter act shall be applicable to such consolidated
appropriations.
Sec. 302. Any defense article procured pursuant to this title
shall be retained by or transferred to and for the use of such
department or agency of the United States as the President may
determine, in lieu of being disposed of to a foreign government,
whenever in the judgment of the President the defense of the United
States will be best served thereby. . . .
Mr. [Robert F.] Rich [of Pennsylvania]: Mr. Chairman, I make
the point of order against title III that it is legislation on an
appropriation bill.
The Chairman: (18) Will the gentleman point out for
the benefit of the Chair what there is in the title that is
legislation?
---------------------------------------------------------------------------
18. Robert Ramspeck (Ga.).
---------------------------------------------------------------------------
Mr. Rich: It reads as follows:
To enable the President, through such departments or
agencies of the Government as he may designate, further to
carry out the provisions of an act to promote the defense of
the United States.
It gives the President of the United States power here.
[[Page 5462]]
The Chairman: The Chair will be glad to hear the gentleman from
Missouri on the point of order.
Mr. [Clarence] Cannon of Missouri: Mr. Chairman, that is merely
a repetition of what is in the act of March 11, 1941, which fully
authorizes every item in the title with the exception of section
302, and that paragraph is no longer subject to a point of order
because consent has been given to consider it and allow amendments
to be offered to it. Section 3 of Public Law No. 11 of the Seventy-
seventh Congress provides in full for the authorizations necessary
to the consideration of this title.
The Chairman: The Chair has examined the act of March 11, 1941,
which authorizes the appropriations contained in this title, and
the Chair overrules the point of order.
Travel and Other Expenses Incidental to Authorized Program
Sec. 13.4 An appropriation for travel by privately owned automobiles
and per diem expenses of personnel of the Office of Contract
Settlement, Office of War Mobilization and Reconversion was held
authorized by a general provision in the law establishing that
office.
On Dec. 6, 1944,(19) the Committee of the Whole was
considering H.R. 5587, a supplemental appropriation bill. A point of
order was raised against the following provision in the bill:
---------------------------------------------------------------------------
19. 90 Cong. Rec. 8939, 78th Cong. 2d Sess.
---------------------------------------------------------------------------
office of war mobilization and reconversion, office of contract
settlement
For all necessary expenses, fiscal year 1945, of the Office of
Contract Settlement established by the Contract Settlement Act of
1944, including fees and expenses of witnesses; travel expenses,
including (1) expenses of attendance at meetings of organizations
concerned with the work of said office, (2) actual transportation
and other necessary expenses and not to exceed $10 per diem in lieu
of subsistence of persons serving while away from their permanent
homes or regular places of business in an advisory capacity to or
employed by the Office of Contract Settlement without other
compensation from the United States, or at $1 per annum, and (3)
upon the approval of the Director of Contract Settlement, expenses
to and from their homes or regular places of business in accordance
with the Standardized Government Travel Regulations, including
travel in privately owned automobiles (and including per diem in
lieu of subsistence at place of employment), of persons employed
intermittently away from their homes or regular places of business
as consultants and receiving compensation on a per diem when
actually employed basis. . . .
Mr. [Clare E.] Hoffman [of Michigan]: Mr. Chairman, I make the
point of order against the paragraph beginning on page 5, line 17,
and running down to and including line 17 on page
[[Page 5463]]
6, that it is legislation on an appropriation bill. . . .
Mr. [Clarence] Cannon of Missouri: Mr. Chairman, this provision
is in order under the new law, that has just been enacted at this
session of Congress, the Office of Contract Settlement law, Public
Law No. 395, Seventy-eighth Congress, second session.
Mr. Hoffman: Mr. Chairman, I call the attention of the Chair to
the language on page 6 beginning with ``(3).'' That is legislation.
Mr. Cannon of Missouri: These are merely expenses incidental to
the conduct of any office authorized by law, Mr. Chairman, and
unquestionably are in order on the bill as proposed. The law itself
imposed no restrictions whatever. . . .
The Chairman: (20) The Chair refers to lines 7 to
12.
---------------------------------------------------------------------------
20. Herbert C. Bonner (N.C.).
---------------------------------------------------------------------------
Mr. Cannon of Missouri: Mr. Chairman, that is with respect to
travel. This is in the nature of a limitation, referring to the
limitation set by the standardized Government travel regulations.
If that was not included here, there would be no limitation. It
could not be subject to a point of order.
The Chairman: Does the gentleman maintain that it is an
authorization for travel in privately owned automobiles?
Mr. Cannon of Missouri: Mr. Chairman, this merely provides in
the usual way, as in all the departments, the authority to carry
out the law as enacted in Public Law No. 395. I do not see how it
could be construed in any other way. It is the method and the means
ordinarily provided in all the departments for carrying out
legislation of this character.
The Chairman: Will the gentleman from Missouri, referring to
line 23, on page 5, state whether there is any authority in law for
payment of $10 per diem in lieu of subsistence of persons serving
while away from their permanent homes?
Mr. Cannon of Missouri: Mr. Chairman, when a law is enacted by
Congress, the authorization provides for the administration of that
law, both as to its spirit and its letter. The authorization here
involves and includes all the methods ordinarily used by the
departments in the administration of such laws. It would be
inconsistent to enact a law and then hold there is no authorization
to administer it.
These are not extraordinary provisions. These are ordinary
provisions under which all laws of this character are enforced. . .
.
The Chairman: The Chair wishes to call to the attention of the
gentleman from Michigan section 22, ``Use of appropriated funds,''
item (b) of the Contract Settlement Act:
To use any such funds appropriated, allocated, or available
to it for expenditures for or in behalf of any other
contracting agency for the purposes authorized in this act.
Therefore the Chairman overrules the point of order.
Construction and Improvement of Barracks
Sec. 13.5 An appropriation for the construction and improvement of
barracks for enlisted men and quarters for noncommissioned officers
of the
[[Page 5464]]
Army was held not authorized by law.
On Feb. 13, 1936,(1) the Committee of the Whole was
considering H.R. 11035, a War Department appropriation. A point of
order was raised against an amendment to the following paragraph:
---------------------------------------------------------------------------
1. 80 Cong. Rec. 1983, 1984, 74th Cong. 2d Sess.
---------------------------------------------------------------------------
For the equipment and conduct of school, reading, lunch, and
amusement rooms, service clubs, chapels, gymnasiums, and libraries,
including periodicals and other publications and subscriptions for
newspapers, salaries of civilians employed in the hostess and
library services, transportation of books and equipment for these
services, rental of films, purchase of slides for and making
repairs to moving-picture outfits, and for similar and other
recreational purposes at training and mobilization camps now
established or which may be hereafter established, $34,940.
Mr. [Francis D.] Culkin [of New York]: Mr. Chairman, I offer an
amendment.
The Clerk read as follows:
Amendment offered by Mr. Culkin: After the period in line
24, page 9, insert a new paragraph, as follows:
``For the construction or betterments of barracks for
enlisted men and quarters for noncommissioned officers, staff
or otherwise, the sum of $50,000,000, to be allocated by the
Quartermaster General in the manner heretofore authorized by
Congress.
Mr. [Tilman B.] Parks [of Arkansas]: Mr. Chairman, I make the
point of order against the amendment that it is not authorized by
law and therefore is not in order, and, in addition, it is
legislation on an appropriation bill. . . .
The Chairman: (2) The Chair is ready to rule. The
amendment proposed by the gentleman from New York is for the
construction or betterment of barracks for enlisted men and
quarters for noncommissioned officers, staff or otherwise, the sum
of $50,000,000, to be allocated by the Quartermaster General in the
manner heretofore authorized by Congress.
---------------------------------------------------------------------------
2. Claude V. Parsons (Ill.).
---------------------------------------------------------------------------
The Chair has been unable to find any law authorizing this
appropriation, and the Chair thinks no authorization has been made
to include the sum of $50,000,000, and no legislation has been had
authorizing the disbursement of the money by the Quartermaster
General, and therefore sustains the point of order.
Mr. Culkin: Mr. Chairman, I defer to the Chair's ruling, but
may I later present it if I find such legislation? I now offer
another amendment.
The Clerk read as follows:
Amendment by Mr. Culkin: Page 9, after line 24, insert the
following: ``For the construction or betterment of barracks for
enlisted men and quarters for noncommissioned officers, staff
or otherwise, the sum of $50,000,000.''
Mr. Parks: Mr. Chairman, I make the same point of order stated
a moment ago.
The Chairman: The Chair is ready to rule. This amendment of the
gentleman from New York proposes to appropriate $50,000,000 for the
construc
[[Page 5465]]
tion or betterment of barracks for enlisted men, and so forth, as
the other amendment provided. In the law regarding the construction
or improvements of barracks, the Chair finds the following language
in title 10, section 1339, of the United States Code:
Permanent barracks or quarters and buildings and structures
of a permanent nature shall not be constructed unless detailed
estimates shall have been previously submitted to Congress, and
approved by a special appropriation for the same, except when
constructed by the troops; and no such structures, the cost of
which shall exceed $20,000, shall be erected unless by special
authority of Congress.
That special authority the Chair thinks has not been granted
and, therefore, sustains the point of order, because it is
legislation on an appropriation bill.
Parliamentarian's Note: The Chair evidently construed the cited
provision in title 10 to require, for structures over $20,000, a
separate authorization in law. For structures under that amount,
approval by a special appropriation would have been adequate.
Substituting Conventional for Nuclear Naval Vessel; Both Unauthorized
Sec. 13.6 For an item in a general appropriation bill containing funds
for a nuclear aircraft carrier program, against which points of
order had been waived for failure of the authorization bill to be
enacted into law, a substitute amendment striking out those funds
and inserting unauthorized funds for a conventional-powered
aircraft carrier program was ruled out under Rule XXI clause 2, as
unprotected by the waiver against the bill.
On Aug. 7, 1978,(3) the Chair ruled that, an
unauthorized item in a general appropriation bill being permitted to
remain by a special rule waiving points of order, figures in such item
may be perfected but the provision may not be changed by an amendment
substituting funds for a different and specified unauthorized purpose.
The proceedings are discussed in Sec. 3.45, supra.
---------------------------------------------------------------------------
3. 124 Cong. Rec. 24710-12, 95th Cong. 2d Sess.
---------------------------------------------------------------------------
CHAPTER 26
Unauthorized Appropriations; Legislation on Appropriation Bills
B. APPROPRIATIONS FOR UNAUTHORIZED PURPOSES
Sec. 14. District of Columbia
Office of Corporation Counsel
Sec. 14.1 A paragraph in a general appropriation bill for the District
of Columbia permitting the use of funds in the bill by the Office
of the Corporation Counsel to retain professional experts at rates
fixed by the commissioner
[[Page 5466]]
was conceded to be legislation and was ruled out in violation of
Rule XXI clause 2.
On June 18, 1973,(4) during consideration in the
Committee of the Whole of the District of Columbia appropriation bill
(H.R. 8685), the following point of order was raised:
---------------------------------------------------------------------------
4. 119 Cong. Rec. 20068, 93d Cong. 1st Sess.
---------------------------------------------------------------------------
Mr. [H.R.] Gross [of Iowa]: Mr. Chairman, I make a point of
order against the language to be found on page 11, lines 5 through
10, as not being a limitation upon an appropriation bill, and not
authorized.
The portion of the bill to which the point of order relates is
as follows:
Sec. 5. Appropriations in this Act shall be available for
services as authorized by 5 U.S.C. 3109 and shall be available
to the Office of the Corporation Counsel to retain the services
of consultants including physicians, diagnosticians,
therapists, engineers, and meteorologists at rates to be fixed
by the Commissioner.
The Chairman: (5) Does the gentleman from Kentucky
desire to be heard on the point of order raised by the gentleman
from Iowa (Mr. Gross)?
---------------------------------------------------------------------------
5. Dante B. Fascell (Fla.).
---------------------------------------------------------------------------
Mr. [William H.] Natcher [of Kentucky]: Mr. Chairman, I should
like to say to the members of the Committee that this is a new
provision that is carried in the bill at this time. This was sent
up from downtown. We at this time, Mr. Chairman, concede the point
of order.
The Chairman: The point of order is sustained.
Metropolitan Washington Board of Trade
Sec. 14.2 Language in an appropriation bill providing funds for aid in
support of the Greater National Capital Committee of the
Metropolitan Washington Board of Trade was not authorized by law.
On July 12, 1961,(6) during consideration in the
Committee of the Whole of the District of Columbia appropriation bill
(H.R. 8072), a point of order was raised against the following
provision:
---------------------------------------------------------------------------
6. 107 Cong. Rec. 12404, 87th Cong. 1st Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
General Operating Expenses
General operating expenses, plus so much as may be
necessary to compensate the Engineer Commissioner at a rate
equal to each civilian member of the Board of Commissioners of
the District of Columbia, hereafter in this Act referred to as
the Commissioners; aid in the support of the Greater National
Capital Committee of the Metropolitan Washington Board of
Trade; $15,356,600. . . .
Mr. [H. R.] Gross [of Iowa]: Mr. Chairman, I make a point of
order against the language on page 3, line 16, ``aid in the support
of the Greater National Capital Committee of the Metropolitan Board
of Trade.'' I make
[[Page 5467]]
the point of order that the language is legislation on an
appropriation bill.
The Chairman: (7) Does the gentleman from Michigan
desire to be heard on the point of order?
---------------------------------------------------------------------------
7. Charles M. Price (Ill.).
---------------------------------------------------------------------------
Mr. [Louis C.] Rabaut [of Michigan]: I concede the point of
order, Mr. Chairman. . . .
The Chairman: The gentleman from Michigan concedes the point of
order and the Chair sustains the point of order.
American Legion Convention Expenses
Sec. 14.3 To the District of Columbia appropriation bill, an amendment
making funds available for expenditure by the American Legion in
connection with its national convention was held not to be
authorized by law.
On June 14, 1954,(8) the Committee of the Whole was
considering H.R. 9517. A point of order was raised against the
following amendment:
---------------------------------------------------------------------------
8. 100 Cong. Rec. 8190, 8191, 83d Cong. 2d Sess.
---------------------------------------------------------------------------
Amendment offered by Mr. Norrell. On page 4, line 1, strike out
``$258,215'' and insert ``$283,215 of which $25,000 shall be
available for expenditure by the American Legion Convention 1954
Corporation in connection with the 1954 National Convention of the
American Legion, subject to reimbursement from the American Legion
if receipts exceed expenses.''
Mr. [Gerald R.] Ford [Jr., of Michigan]: Mr. Chairman, I make
the point of order against the amendment inasmuch as the proposed
expenditure is not authorized by law and that it is legislation on
an appropriation bill. . . .
The Chairman: (9) The Chair would like to make
inquiry of the gentleman from Arkansas if he can furnish the Chair
with an authorization covering the language in his amendment.
---------------------------------------------------------------------------
9. J. Harry McGregor (Ohio).
---------------------------------------------------------------------------
Mr. [William F.] Norrell [of Arkansas]: Mr. Chairman, I frankly
say there is no authorization in law covering this item. . . .
The Chairman: The Chair is ready to rule.
Upon the statement of the gentleman from Arkansas just made to
the Chair that there is no authorization for the amendment, the
Chair sustains the point of order.
Schools
Sec. 14.4 An appropriation for public schools in the District of
Columbia was held not subject to the point of order that it was
without authorization, where the point of order was based on the
contention that funds were not authorized for segregated schools.
On Mar. 2, 1949,(10) the Committee of the Whole was
consid
[[Page 5468]]
ering H.R. 3082, a District of Columbia appropriation bill. The
following proceedings took place:
---------------------------------------------------------------------------
10. 95 Cong. Rec. 1741, 1742, 81st Cong. 1st Sess.
---------------------------------------------------------------------------
Mr. [Vito] Marcantonio [of New York]: Mr. Chairman, I make a
point of order against the language beginning on page 8, concerning
all appropriations for public schools, on the general ground that
there is no authorization. To be more specific, I mean the
following:
The public schools in the District of Columbia are segregated
schools. Nowhere in the law is there any authorization for
appropriations for general administration, supervision, operation
of, and instruction in segregated schools. Since this section of
the bill makes appropriations for segregated schools, and since
there is no authorization in the law for segregated schools, I
submit that this is an appropriation without authorization and
these appropriations for segregated schools are not in order.
The Chairman: (11) Does the gentleman from Kentucky
desire to be heard on the point of order?
---------------------------------------------------------------------------
11. Eugene J. Keogh (N.Y.).
---------------------------------------------------------------------------
Mr. [Joe B.] Bates of [Kentucky]: Mr. Chairman, I cannot find
anything in this bill which provides that segregation must be
practiced in the District of Columbia. As a matter of fact, I look
on that as an administrative matter which is handled by the
superintendent of schools in the District of Columbia. . . .
The Chairman: The Chair is ready to rule. It is the opinion of
the Chair that the appropriations provided in this section of the
bill are appropriations which are authorized by law; and since, in
the language of the bill before us, there is no reference to the
basis upon which the gentleman from New York has predicated his
point of order, the Chair, therefore, overrules the point of order.
School Playgrounds
Sec. 14.5 An appropriation for expenses of keeping school playgrounds
open during the summer months was held authorized by law, and in
order.
On Jan. 31, 1938,(12) the Committee of the Whole was
considering H.R. 9181, the District of Columbia appropriation bill for
1939. At one point Chairman William J. Driver, of Arkansas, ruled on a
point of order as follows:
---------------------------------------------------------------------------
12. 83 Cong. Rec. 1316, 75th Cong. 3d Sess.
---------------------------------------------------------------------------
The Chairman: The Chair is ready to rule. On page 26, beginning
on line 1, the following language appears in the pending bill:
For the maintenance and contingent expenses of keeping open
during the summer months the public-school playgrounds; for
special and temporary services, directors, assistants, and
janitor service during the summer vacation, and, in the larger
yards, daily after school hours during the school term,
$25,000.
To this paragraph the gentleman from Maryland addresses a point
of order upon the ground that there is no authority under the law
justifying the
[[Page 5469]]
appropriation, and that it is an effort to change by law the
jurisdiction of the agency in charge of the particular activities
dealt with under this paragraph. The Chair must confess that he is
unable to find in this language any change whatever in the
jurisdiction over the property of the school institutions of the
District and the Chair must necessarily presume that any money
appropriated will go into the regular channels the law directs it
should follow and be expended by the agency charged under the law
with jurisdiction over these grounds. The Chair, therefore, is
compelled to reach the conclusion that the point of order is not
well taken, and it is therefore overruled.
The gentleman from Virginia [Mr. Smith] also stresses the point
of order that is directed to the matter contained in the point
raised by the gentleman from Maryland, with this further point,
that there is no specific law authorizing an appropriation with
respect to the maintenance of the school grounds during the
vacation period. The Chair is compelled to reach the conclusion
that when jurisdiction is placed for the operation of these
institutions, necessarily the agency that is created and given
control over the institution continues it at all seasons of the
year and therefore the language that authorizes these institutions
necessarily is broad enough to cover every activity that the
language in this particular paragraph here indicates as the purpose
of the appropriation. Again, the Chair is compelled to overrule the
point of order made by the gentleman from Virginia.
Claims of Prison Employees
Sec. 14.6 An amendment to the District of Columbia appropriation bill
providing for refunds to certain individuals for meals not taken by
employees of a penal institution was held to be unauthorized by
law.
On Apr. 5, 1946,(13) the Committee of the Whole was
considering H.R. 5990, a District of Columbia appropriation bill. At
one point the Clerk read as follows, and proceedings ensued as
indicated below:
---------------------------------------------------------------------------
13. 92 Cong. Rec. 3226, 79th Cong. 2d Sess.
---------------------------------------------------------------------------
Amendment offered by Mr. Smith of Virginia: On page 31, line
22, after the period, insert a new paragraph, as follows:
``Refunding erroneous deductions: To enable the Commissioners
in cases where deductions were made for meals not taken by
employees in the penal institutions, Lorton, Va., and has been
covered into the Treasury for personal services: Provided, That
this appropriation shall be available for refunding to employees
such deductions made from salaries for meals not taken as follows,
not to exceed $1,040:
``Hospital Supervisor T. T. Grimsley, from November 1, 1938,
through April 30, 1945, at rate of $80 per annum, $560.
``Special Disbursing Agent Kenneth Dove, from July 1, 1939,
through June 30, 1945, at rate of $80 per annum, $480.'' . . .
Mr. [John M.] Coffee [of Washington]: Mr. Chairman, I make the
point of order that this amendment is
[[Page 5470]]
out of order because it is legislation on an appropriation bill. It
has to do with claims with reference to employees in a certain
institution operated by the District government and should properly
come from the Committee on Claims. . . .
The Chairman: (14) the Chair is prepared to rule.
---------------------------------------------------------------------------
14. Aime J. Forand (R.I.).
---------------------------------------------------------------------------
It would appear from the information already given to the
Committee by both the gentleman from Virginia and the gentleman
from Washington that the authorization is nonexistent. Under those
circumstances it would seem the advisable course would be to file a
claim for this money to be refunded.
The Chair therefore sustains the point of order.
Street Lighting
Sec. 14.7 An appropriation for street lighting installation and
maintenance of public lamps and lampposts, out of the special fund
created by the District of Columbia Gasoline Tax Act, was held in
order inasmuch as that act authorized appropriations for
improvement and maintenance of public highways and protective
structures in connection therewith.
On Feb. 1, 1938,(15) the Committee of the Whole was
considering H.R. 9181, the District of Columbia appropriation bill for
1939. At one point Chairman William J. Driver, of Arkansas, made the
following ruling:
---------------------------------------------------------------------------
15. 83 Cong. Rec. 1375, 75th Cong. 3d Sess.
---------------------------------------------------------------------------
The Chairman: The Chair is ready to rule.
The gentleman from Mississippi [Mr. Collins] offers an
amendment in the following language:
Street lighting: For purchase, installation, and
maintenance of public lamps, lampposts, street designations,
lanterns, and fixtures of all kinds on streets, avenues, roads,
alleys, and for all necessary expenses in connection therewith,
including rental of storerooms, extra labor, operation,
maintenance, and repair of motor trucks, this sum to be
expended in accordance with the provisions of existing law:
Provided, That this appropriation shall not be available for
the payment of rates for electric street lighting in excess of
those authorized to be paid in the fiscal year 1927, and
payment for electric current for new forms of street lighting
shall not exceed 2 cents per kilowatt-hour for current
consumed.
To this amendment the gentleman from Oklahoma [Mr. Nichols]
directs a point of order on the ground it is not an appropriation
authorized under existing law. It, therefore, becomes necessary for
the Chair to look for authority in existing law to justify the
amendment.
The law authorizing appropriation out of the gas-tax fund and
setting forth the purposes for which appropriations may be made is
found in volume 50, Part I, United States Statutes at Large, at
page 677, and is as follows:
For the construction, reconstruction, improvement, and
maintenance
[[Page 5471]]
of public highways, including the necessary administrative
expenses in connection therewith;
(2) For the expenses of the office of the Director of
Vehicles and Traffic incident to the regulation and control of
traffic and the administration of the same, and
(3) For the expenses necessarily involved in police
control, regulation, and administration of traffic upon the
highways. . . .
The very language employed with respect to street lighting
necessarily leads us to the conclusion that street lighting is
regarded as an essential feature necessary in order to establish
such safeguards as would maintain these avenues and streets for the
benefit, the convenience, and the facility of the people using the
same.
The language in the section of the law which the Chair read
that imposes a duty and responsibility upon the police force in
connection with these highways necessarily pre-supposes that
lighting is one of the necessary and essential features to the
safety element in the use of the streets and, therefore, is an
incident to and is necessarily included in the item of expense for
streets, street improvement, and maintenance.
However, the Chair may say to the Committee that he is saved
considerable trouble and the necessity of dealing thoroughly with
this subject from the standpoint of reasoning by one of the
precedents of the House. A similar question to the one now under
consideration was raised during consideration of a District
appropriation bill in the first session of the Seventy-fifth
Congress, at which time the very distinguished gentleman from
Tennessee [Mr. Cooper] was Chairman of the Committee of the Whole
House on the state of the Union having under consideration that
measure. In a very sound opinion, which will be found on page 3111
of the Congressional Record of April 2, 1937, I find this language
was used by the then Chairman of the Committee:
The Chair has pointed out in ruling on a previous point of
order that the so-called Gasoline Tax Act provides--
``That the proceeds of the tax, except as provided in
section 840 of this title, shall be paid into the Treasury of
the United States entirely to the credit of the District of
Columbia and shall be available for appropriation by the
Congress exclusively for road and street improvement and
repair.''. . .
The word ``improvement,'' defined to mean ``betterment,''
makes the word broad and general enough to include all of the
various activities mentioned in this amendment. They are,
therefore, authorized by existing law. For this reason the
Chair feels that the amendment offered by the gentleman from
Mississippi is in order.
The point of order is overruled.
The Chair feels that the decision as made by the Chairman of
the Committee then . . . should be followed in construing the
present law.
The Chair is of the opinion that the provision of law
pertaining to appropriations from the gas-tax fund is sufficiently
broad to authorize appropriations for the purposes set out in the
amendment and therefore overrules the point of order.
Airport Lighting
Sec. 14.8 Language in the District of Columbia appropriation
[[Page 5472]]
bill appropriating for street lighting for ``public spaces'' and
``part cost of maintenance of airport and airway lights necessary
for operation of the air mail'' was held unauthorized by law.
On Feb. 1, 1938,(16) the Committee of the Whole was
considering H.R. 9181, a District of Columbia appropriation bill. At
one point, a point of order was raised against the following paragraph:
---------------------------------------------------------------------------
16. 83 Cong. Rec. 1371, 1372, 75th Cong. 3d Sess.
---------------------------------------------------------------------------
Street lighting: For purchase, installation, and maintenance of
public lamps, lampposts, street designations, lanterns, and
fixtures of all kinds on streets, avenues, roads, alleys, and
public spaces, part cost of maintenance of airport and airway
lights necessary for operation of the air mail, and for all
necessary expenses in connection therewith . . . $765,000. . . .
Mr. [Jack] Nichols [of Oklahoma]: Mr. Chairman, my point of
order was directed at the paragraph beginning on page 68, line 21,
down to and inclusive of line 19 on page 69, for the reason that it
is legislation on an appropriation bill, contrary to existing law,
and not authorized by law.
In the interest of time, Mr. Chairman, I shall not argue this
point of order at great length at this juncture. It will suffice at
this time to point out to the Chair the language contained in lines
24 and 25 of page 68, and ask the Chair to remember that this
paragraph proposes to charge $765,000, the cost of street lighting
in the District of Columbia, to the highway fund of the District of
Columbia. Surely there can be no argument but that the following
language is legislation and not authorized by existing law:
And public spaces, part cost of maintenance of airport and
airway lights necessary for operation of the air mail. . . .
The Chairman: (17) The gentleman from Mississippi
concedes the point of order is well taken. All of the paragraph
goes out, for if any part of the paragraph is subject to a point of
order necessarily the whole paragraph must be eliminated, which
will be the ruling in this particular case.
---------------------------------------------------------------------------
17. William J. Driver (Ark.).
---------------------------------------------------------------------------
Juvenile Detention Center
Sec.14.9 An appropriation for maintenance of a suitable place for the
reception and detention of girls and women, and of boys under 17
years of age, arrested by the police or held as witnesses in the
District of Columbia, was held authorized by law.
On Feb. 1, 1938,(18) the Committee of the Whole was
considering H.R. 9181, the District of Columbia appropriation for 1939.
At one point the Clerk read as follows, and proceedings ensued as
indicated below:
---------------------------------------------------------------------------
18. 83 Cong. Rec. 1359, 1360, 75th Cong. 3d Sess.
---------------------------------------------------------------------------
For maintenance of a suitable place for the reception and
detention of girls
[[Page 5473]]
and women, and of boys under 17 years of age, arrested by the
police on charge of offense against any laws in force in the
District of Columbia, or held as witnesses or held pending final
investigation or examination, or otherwise, or committed to the
guardianship of the Board of Public Welfare, including
transportation, clinic supplies, food, clothing, upkeep and repair
of buildings, fuel, gas, ice, laundry, supplies and equipment,
electricity, and other necessary expenses, $18,500; for personal
services, $9,240; in all, $27,740. . . .
Mr. [Herbert S.] Bigelow [of Ohio]: Mr. Chairman, I make the
point of order that the language beginning in line 19 on page 37,
and ending at the end of line 4 on page 38, is legislation in an
appropriation bill.
In 1929, Public Law 804, Seventieth Congress, provided that
children picked up from the streets and held for disposition by the
courts should be separated from adult prisoners; and it provided a
receiving home of their own. Throughout all the years intervening
this receiving home has been maintained and is now in operation,
some 40 or 50 children being residents of the home, held there for
a period of a day, a week, or a month, or until they are otherwise
disposed of.
Conditions at the receiving home admittedly are bad, and
something should be done about it; but what should be done is, it
seems to me, a matter for the consideration of the legislative
committee and not for an appropriations subcommittee. I, therefore,
make the point of order against the language in this section and
ask that the language be stricken from the bill.
The Chairman: (19) does the gentleman from
Mississippi desire to be heard on the point of order? And in this
connection the Chair will ask the gentleman from Mississippi to
indicate the authority for the appropriation to maintain the house
of detention.
---------------------------------------------------------------------------
19. William J. Driver (Ark.).
---------------------------------------------------------------------------
Mr. [Ross A.] Collins [of Mississippi]: Mr. Chairman, I would
like to know the grounds of the gentleman's point of order. The
house of detention is merely a police precinct.
The Chairman: The gentleman interposes a point of order on the
ground that it is an appropriation without authority of law.
Mr. Collins: The house of detention is a police precinct owned
by the District of Columbia.
We may not have specific statutory authority to appropriate for
this particular precinct and, as a matter of fact, we may not have
specific statutory authority to appropriate for any particular
police precinct.
The fact remains, however, that the house of detention has
existed since 1901 and appropriations have been made for that
purpose since that time. The section against which the point of
order is directed proposes appropriations for maintenance of an
existing institution. It is a going concern, and under the rule
laid down in section 1280 of Cannon's Precedents the Congress has
the power to appropriate for the maintenance thereof.
Mr. [Vincent L.] Palmisano [of Maryland]: Mr. Chairman, I
should like to be heard on the point of order.
As I understand it, the point of order is to the effect that
under the appro
[[Page 5474]]
priation they are merging, under the act of 1929, as the gentleman
stated, the detention home for children into a prison. The children
will be placed in a prison.
Merging the two is legislation in an appropriation bill and if
they are merging the two in violation of the act of 1929 then I say
the appropriation should be taken out. I think that is what my
colleague is contending.
Mr. [Millard F.] Caldwell [of Florida]: Mr. Chairman, may I
speak briefly on the point of order?
The provision complained of here is not legislation in the
sense it creates some new activity which is required to be
authorized by law. Perhaps it expands one already created. This
activity, however, has been on the statute books and has been
appropriated for during the past 30 years or more.
Mr. Bigelow: Mr. Chairman, I am not challenging the statement
that it may be proper for the Appropriations Committee to
appropriate funds for the repair of the detention home. But what
that committee is doing by this paragraph is abolishing the
receiving home for children. It is abolishing an institution that
was established by law for the purpose of segregating children from
adult prisoners and I submit it is clearly legislation. If the
point of order is sustained I have an amendment that will cure the
situation.
The Chairman: The Chair is ready to rule.
To the paragraph found on page 37 of the bill, beginning with
line 19, the gentleman from Ohio [Mr. Bigelow] directs a point of
order on the ground it is legislation in an appropriation bill and
attempts to appropriate without legislative authority. The
gentleman from Ohio concedes the fact that there is authority under
the provisions of an act of 1929 and therefore this is an
appropriation based on the authority of that statute. The matter is
further clarified for the Chair by the gentleman from Maryland, who
states that his fear is the purpose of the paragraph is to
eliminate the use of certain quarters or to merge two of the
activities conducted with reference to matters dealt with in this
paragraph.
There is nothing in the paragraph to indicate that there is the
purpose of either abandoning or merging and, of course, the Chair
is bound by the language and is unable to indulge in a presumption
that there is any such underlying purpose. Furthermore, the purpose
of this appropriation in express terms is maintenance, and by
maintenance I mean the maintenance of an existing institution or
institutions; therefore it would come clearly within the rules to
appropriate for that purpose.
The point of order made by the gentleman from Ohio [Mr.
Bigelow] is overruled.
Personal Services for Public Buildings
Sec. 14.10 Language in the District of Columbia appropriation bill
appropriating for personal services for the care of the District
buildings was held authorized by law and in order.
On Jan. 31, 1938,(20) the Committee of the Whole was
consid
[[Page 5475]]
ering H.R. 9181, the District of Columbia appropriation bill for 1939.
At one point the Clerk read as follows:
---------------------------------------------------------------------------
20. 83 Cong. Rec. 1303, 1304, 75th Cong. 3d Sess.
---------------------------------------------------------------------------
For personal services, including temporary labor, and service
of cleaners as necessary at not to exceed 48 cents per hour,
$129,000: Provided, That no other appropriation made in this act
shall be available for the employment of additional assistant
engineers or watchmen for the care of the District buildings.
Mr. [Byron B.] Harlan [of Ohio]: Mr. Chairman, I wish to make a
point of order against the proviso in this paragraph, but first I
wish to raise a point of order as to the entire paragraph. . . .
The Chairman: (1) The authority for making
appropriations for the care of District buildings is found in
Fiftieth Statutes at Large, page 377, in this language:
---------------------------------------------------------------------------
1. William J. Driver (Ark.).
---------------------------------------------------------------------------
Provided, That all buildings belonging to the District of
Columbia shall be under the jurisdiction and control of the
Commissioners of the District. . . .
The gentleman from Ohio also directed the point of order
against the paragraph the first portion of which includes this
language:
For personal services, including temporary labor, and
service of cleaners as necessary at not to exceed 48 cents per
hour, $129,000.
Standing alone, as a matter of course, this language is immune
from a point of order because it is solely an appropriation for
personal services, and so forth. If, therefore, the argument
directed to the proviso goes down, necessarily the point of order
against the paragraph as a whole must go down.
The Chair overrules the point of order directed against the
paragraph.
Employment of People's Counsel
Sec. 14.11 Employment of a secretary to the People's Counsel before the
Public Utilities Commission, and employment of expert aid to such
counsel, were found to be authorized by law (though the amendment
in question was ruled out on other grounds).
On Jan. 31, 1938,(2) the Committee of the Whole was
considering H.R. 9181, the District of Columbia appropriation bill for
1939. At one point the Clerk read the following amendment:
---------------------------------------------------------------------------
2. 83 Cong. Rec. 1308, 1309, 75th Cong. 3d Sess.
---------------------------------------------------------------------------
Amendment by Mr. [Alfred N.] Phillips [Jr., of Connecticut]: On
page 11, line 13, after the period, insert two new paragraphs, as
follows:
``For the employment of a secretary to the People's Counsel
before the public utilities commission, $1,620.
``For the employment of expert aid to the People's Counsel,
$5,000.''. . .
Mr. [Vincent L.] Palmisano [of Maryland]: Mr. Chairman, I made
a point of order against the language on
[[Page 5476]]
page 7, line 13, after the figures ``$76,000'' to the end of the
paragraph, which point of order was sustained on the ground that it
was legislation in an appropriation bill. The amendment offered by
the gentleman from Connecticut would restore the language that was
stricken out on the point of order; not only that, but we have
passed that particular section and the amendment comes too late. .
. .
The Chairman: (3) the gentleman from Maryland bases
his point of order on two grounds. The first ground, that the
amendment is not authorized by law, the Chair will be forced to
overrule, because in section 121 of the Public Utilities Act of the
District of Columbia under the District Code this language is
found:
---------------------------------------------------------------------------
3. William J. Driver (Ark.).
---------------------------------------------------------------------------
The Commission shall have the power in each instance to
employ and to prescribe the duties of such officers, clerks,
stenographers, typewriters, inspectors, experts, and employees
as it may deem necessary to carry out the provisions of this
act.
The Chair finds, therefore, that the amendment does seek to
provide funds for a purpose authorized by law.
The second ground raised by the gentleman from Maryland, that
the amendment comes too late, and the point of order raised by the
gentleman from Oklahoma, that the amendment is not germane to the
paragraph offered, the Chair will be forced to sustain.
The Chair sustains the point of order that the amendment is not
germane to the paragraph offered.
Main Library Building Unauthorized
Sec. 14.12 An appropriation for the preparation of plans and
specifications for a new main library building in the District of
Columbia was held unauthorized by law.
On Jan. 31, 1938,(4) the Committee of the Whole was
considering H.R. 9181, a District of Columbia appropriation bill. At
one point the Clerk read as follows, and proceedings ensued as
indicated below:
---------------------------------------------------------------------------
4. 83 Cong. Rec. 1313, 1314, 75th Cong. 3d Sess.
---------------------------------------------------------------------------
For the preparation of plans and specifications for a new main
library building to be constructed on square 491 in the District of
Columbia, $60,000.
Mr. [Jack] Nichols [of Oklahoma]: Mr. Chairman, I make a point
of order against the language found on page 18, beginning in line
14, and including all of the language in lines 14, 15, and 16,
because it is legislation on an appropriation bill and is without
authority of existing law.
I may say, Mr. Chairman, that the purpose for making this point
of order is that there is now pending before the Committee on the
District of Columbia a bill which proposes to authorize an
appropriation of two and one-half million dollars for the
construction of a library in the District of Columbia. The
committee before which the bill is pending has had hearings in the
past
[[Page 5477]]
and will no doubt hold hearings in the future in order to determine
whether or not there is a need in the District of Columbia for the
construction of this library building. Mr. Chairman, until that
committee does decide such a building is necessary, and until that
committee authorizes an appropriation for the construction of the
building, certainly there is no need for the expenditure of $60,000
to prepare the plans for a building, the authorization of which
could only be made by the District of Columbia Committee. I may say
there has been no authorization by the District of Columbia
Committee for an appropriation of $60,000 for this purpose. . . .
The Chairman: (5) the point of order made by the
gentleman from Oklahoma (Mr. Nichols) is sustained, and accordingly
the provision will be stricken.
---------------------------------------------------------------------------
5. William J. Driver (Ark.).
---------------------------------------------------------------------------
Branch Library Building Authorized
Sec. 14.13 An appropriation for the preparation of plans and
specifications for a branch library building in the District of
Columbia was held authorized by law.
On Jan. 31, 1938,(6) the Committee of the Whole was
considering H.R. 9181, the District of Columbia appropriation bill for
1939. The following ruling was made by the Chairman: (7)
---------------------------------------------------------------------------
6. 83 Cong. Rec. 1314, 75th Cong. 3d Sess.
7. William J. Driver (Ark.).
---------------------------------------------------------------------------
To a clause in the pending appropriation bill to be found
beginning on line 14 on page 18, in the following language--
For the preparation of plans and specifications for a new
main library building to be constructed on square 491 in the
District of Columbia, $60,000--
the gentleman from Oklahoma [Mr. Nichols] directed a point of order
which was sustained by virtue of the language found in section 1421
of the Code of Laws of the District of Columbia, which provided for
the construction of a central library and branch libraries. The
word ``central'' as found in this particular law necessarily
precludes any legislation for the construction of another main
library, as we can well consider it to be the act and intent of
Congress to provide for such only in the form of one library.
Within this definition and direction of the law the Chair
necessarily sustained the point of order.
The gentleman from Mississippi then offered an amendment which
provides for the preparation of plans and specifications for the
construction of a branch library. The Chair turns again to section
1421 of the code and finds this language:
Said library shall consist of a central library and such
number of branch libraries so located and so supported as to
furnish books and other printed matter and information service
convenient to the homes and offices of all residents of the
said District.
Clearly, this amendment, providing for the plans and
specifications for a branch library, comes squarely within the
authority of the law the Chair has
[[Page 5478]]
just read and, therefore, the point of order is overruled.
Use of Gasoline Tax Fund--for Salaries
Sec. 14.14 An appropriation for the salary and expenses of the office
of Director of Vehicles and Traffic out of the District Gasoline
Tax Fund was held unauthorized by law, since the Gasoline Tax Act
provided that revenue raised through its operation could only be
appropriated by Congress for road and street improvements and
repairs.
On Apr. 2, 1937,(8) H.R. 5996, the District of Columbia
appropriation for 1938, was being considered in the Committee of the
Whole. At one point the Clerk read as follows:
---------------------------------------------------------------------------
8. 81 Cong. Rec. 3110, 3111, 75th Cong. 1st Sess.
---------------------------------------------------------------------------
For paving, repaving, grading, and otherwise improving streets,
avenues, and roads, including temporary per-diem services,
surveying instruments and implements, and drawing materials, and
the maintenance of motor vehicles used in this work, including
curbing and gutters and replacement of curb-line trees where
necessary, and including trees and parkings, assessment and permit
work and the several purposes provided for in that paragraph, and
salaries and expenses of the office of the Director of Vehicles and
Traffic, as follows, to be paid from the special fund created by
section 1 of the act entitled ``An act to provide for a tax on
motor-vehicle fuels sold within the District of Columbia, and for
other purposes'', approved April 23, 1924 (43 Stat., p. 106), and
accretions by repayment of assessments.
Mr. [Jack] Nichols [of Oklahoma]: Mr. Chairman, I make the
point of order against the portion beginning in line 11 on page 71
after the word ``work'', and beginning with the word ``including,''
going through lines 11, 12, and 13, on down to and inclusive of
line 21, on the ground that it is legislation and changes existing
law. . . .
If there is any provision in the rules of the House which would
permit this language to stay in the bill as against the point of
order, that it is legislation, it would have to be held under the
provisions of the Holman rule. . . .
The organic law which provided for the expenditure of funds
derived from the collection of the gasoline tax in the District of
Columbia, stating where those funds might be expended, reads as
follows:
A tax of 2 cents per gallon on all motor-vehicle fuels
within the District of Columbia sold or otherwise disposed of
by an importer or used by him in a motor vehicle operated for
hire or for commercial purposes, shall be levied, collected,
and paid in the manner hereinafter provided.
I ask the Chair to listen carefully to the reading of the
following portion of the law:
The proceeds of the tax, except as provided in section 840
of this title--
And for the benefit of the Chair let me say that section 840 of
this title
[[Page 5479]]
simply provides certain exemptions of certain classes of motor
vehicles from the provisions of this tax law--
shall be paid into the Treasury of the United States entirely
to the credit of the District of Columbia, and shall be
available for appropriation by the Congress exclusively for
road and street improvements and repair.
In Hinds' Precedents, volume 7, page 411, section 1395, this is
stated:
A provision construing or interpreting existing law is
legislation and is not in order on an appropriation bill.
And there follows the ruling where a similar objection to this
was made, and it was sustained. My point is this: In answer to this
point of order the chairman of the Subcommittee on Appropriations
can only say, I believe, that this language is justified because
curbs, gutters, parkways, streets, motor vehicles, and other things
related thereto are parts of a street and a roadway. If that is the
contention, then that is an attempt on the part of this
subcommittee to do the thing that section 1394 says cannot be done,
to wit:
A provision construing or interpreting existing law is
legislation not in order on an appropriation bill.
In other words, if the District of Columbia up to this time has
been using these funds only for a particular purpose, that is an
administrative discretion of theirs and this rule provides that if
an Appropriations Committee attempts to direct that executive
officer that he must use the funds for some other purpose than that
for which he is using it, that that is legislation, and I submit,
Mr. Chairman, that this under that rule is clearly legislation. . .
.
Mr. [Ross A.] Collins [of Mississippi]: Mr. Chairman, the law
merely says that the gasoline-tax fund shall be available for road
and street improvement and repair. Trees are just as much a part of
the street as the center of the street. Assessment and curbing work
simply means the paving of sidewalks and gutters. Certainly
operation and maintenance of traffic lights is a part of street
improvements. . . .
Mr. Nichols: [Clearly] this is legislation, because that thing
cannot be done by an appropriations committee. I will read from
volume 7 of Cannon's Precedents, at page 444, section 1438, as
follows:
A provision limiting discretion vested in an executive
officer is legislation and not in order on an appropriation
bill.
Which goes back to the very thing I stated before. If these
gentlemen whose duty it is to spend the funds derived from this
gasoline tax are not spending it for the things provided for here,
then if you direct them what they shall spend the money for, that
makes it legislation, beyond question. Under the admission of the
chairman of the subcommittee, certainly it cannot be construed as
anything else.
The Chairman: (9) The Chair is prepared to rule. The
gentleman from Oklahoma [Mr. Nichols] makes a point of order
against certain language appearing on page 71, beginning with the
word ``including'', in line 11, and extending to the end of the
paragraph.
---------------------------------------------------------------------------
9. Jere Cooper (Tenn.).
---------------------------------------------------------------------------
The gentleman from Mississippi [Mr. Collins] in speaking in
opposition to
[[Page 5480]]
the point of order, has called attention to certain improvements
that are provided for by the language included in this part of the
bill. The Chair would be inclined to agree with the gentleman in
the contention that he presents in all respects except that
relating to the question of salaries and expenses of the office of
director of vehicles and traffic. The Chair observes that the
office of director of vehicles and traffic is provided for in the
act to regulate traffic in the District of Columbia, and so forth.
An examination of this law clearly shows that the director of
vehicles and traffic has rather broad general duties to perform,
and it is not related alone to what might be imposed upon him in
connection with the Gasoline Tax Act. The Gasoline Tax Act
provides, as was pointed out by the gentleman from Oklahoma, that--
The proceeds of the tax, except as provided in section 840
of this title, shall be paid into the Treasury of the United
States entirely to the credit of the District of Columbia and
shall be available for appropriations by the Congress
exclusively for road and street improvements and repairs.
The Chair is unable to see how that language would be broad
enough to authorize the payment of salaries for the director of
vehicles and traffic. The Gasoline Tax Act does not make provision
for the payment of the salaries to which the Chair has directed
attention. Therefore, salaries paid out of this fund would not be
authorized by law. For that reason the provision to which the point
of order is made would, in the opinion of the Chair, be legislation
on a general appropriation bill and would be subject to a point of
order
Therefore the Chair sustains the point of order
-- For Street Repair and Improvement
Sec. 14.15 An appropriation for paving, grading, and otherwise
improving streets, including curbing and gutters, and replacement
of curb-line trees where necessary, out of the special fund created
by the District of Columbia Gasoline Tax Act, was held to be in
order inasmuch as that act authorized appropriations for ``road and
street improvement and repair.''
On Apr. 2, 1937, (10) The Committee of the Whole was
considering H.R. 5996, the District of Columbia appropriation bill for
1938. At one point the Clerk read as follows, and proceedings ensued as
indicated below:
---------------------------------------------------------------------------
10. 81 Cong. Rec. 3111, 75th Cong. 1st Sess.
---------------------------------------------------------------------------
Amendment offered by Mr. [Ross A.] Collins [of Mississippi]:
Page 71, line 7, insert a new paragraph, as follows:
``For paving, repaving, grading, and otherwise improving
streets, avenues, and roads, including temporary per-diem services,
surveying instruments and implements, and drawing materials, and
the maintenance of motor vehicles used in this work, including
curbing and gutters and replacement of curb-line trees where
necessary, and
[[Page 5481]]
including trees and parkings, assessment and permit work and the
several purposes provided for in that paragraph, as follows, to be
paid from the special fund created by section 1 of the act entitled
`An act to provide for a tax on motor-vehicle fuels sold within the
District of Columbia, and for other purposes', approved April 23,
1924 (43 Stat., p. 106), and accretions by repayment of
assessments.''
Mr. [Jack] Nichols [of Oklahoma]: Mr. Chairman, I make a point
of order against the amendment. . . . If I properly interpret the
amendment, it is the exact language that was heretofore in the
bill, with the exception that that portion has been stricken which
provides for the payment of the salary of a supervisor of traffic
Am I correct in that understanding?
The Chairman: (11) The gentleman is correct. . . .
---------------------------------------------------------------------------
11. Jere Cooper (Tenn.).
---------------------------------------------------------------------------
The gentleman from Oklahoma makes the point of order against
the amendment offered by the gentleman from Mississippi, the
wording of which, as pointed out by the gentleman from Oklahoma, is
the same as the wording of the bill excluding the portion to which
the Chair invited attention in the ruling made on the previous
point of order. It will be remembered that the Chair pointed out in
ruling on the previous point of order that the so-called Gasoline
Tax Act provides:
That the proceeds of the tax, except as provided in section
840 of this title, shall be paid into the Treasury of the
United States entirely to the credit of the District of
Columbia and shall be available for appropriation by the
Congress exclusively for road and street improvement and
repair.
The Chair has consulted the dictionary and finds that the word
``improvement'' is there defined to be--
An act or process of improving, as profitable employment or
use, cultivation, development, enhancement, or increase;
especially betterment--
And so forth. The word ``improvement'' appears in the so-called
Gasoline Tax Act, and this word is defined in the dictionary as
meaning, among other things, ``especially betterment.'' The Chair,
therefore, is of the opinion that the various functions mentioned
in the language of the amendment and the various things to be
provided--trees, parking, curbing, guttering, and so forth--
certainly are proper to be included as betterment or improvement of
the streets.
The word ``improvement'', defined to mean ``betterment'', makes
the word broad and general enough to include all of the various
activities mentioned in this amendment. They are, therefore,
authorized by existing law. For this reason the Chair feels that
the amendment offered by the gentleman from Mississippi is in
order.
The point of order is overruled.
-- For Personal Services
Sec. 14.16 An appropriation for personal services for the Department of
Vehicles and Traffic, out of the special fund created by the
District of Columbia Gasoline Tax Act, was held not to be
authorized by the act
[[Page 5482]]
On Apr. 2, 1937,(12) the Committee of the Whole was
considering H.R. 5996, a District of Columbia appropriation bill. A
point of order was raised against the following paragraph:
---------------------------------------------------------------------------
12. 81 Cong. Rec. 3112, 75th Cong. 1st Sess.
---------------------------------------------------------------------------
For personal services, department of vehicles and traffic,
$76,440.
Mr. [Jack] Nichols [of Oklahoma]: Mr. Chairman, I interpose a
point of order against the language appearing in line 13, page 80,
reading as follows:
For personal services, department of vehicles and traffic,
$76,440.
That this is legislation and contrary to existing law.
The Chairman: (13) Does the gentleman from
Mississippi desire to be heard?
---------------------------------------------------------------------------
13. Jere Cooper (Tenn.).
---------------------------------------------------------------------------
Mr. [Ross A.] Collins [of Mississippi]: I do not.
The Chairman: The gentleman from Oklahoma makes the point of
order against the language appearing in lines 13 and 14, on page
80, which reads as follows:
``For personal services, department of vehicles and traffic,
$76,440.''
It will be remembered that on page 71 of the bill a point of
order was made against language appearing in lines 15 and
16.(14) For the reasons indicated at the time that point
of order was under consideration, the Chair is of opinion that this
is an appropriation not authorized by law and therefore sustains
the point of order.
---------------------------------------------------------------------------
14. See the discussion in Sec. 14.14, supra.
---------------------------------------------------------------------------
-- For Sidewalks and Curbing
Sec. 14.17 An appropriation for the construction and repair of
sidewalks and curbs around public reservations and municipal and
federal buildings, out of a special fund created by the District of
Columbia Gasoline Tax Act, was held to be authorized by the
language of that act specifying in general terms the purposes of
the fund.
On Apr. 2, 1937,(15) the Committee of the Whole was
considering H.R. 5996, the District of Columbia appropriation bill for
1938. The following proceedings took place:
---------------------------------------------------------------------------
15. 81 Cong. Rec. 3112, 75th Cong. 1st Sess.
---------------------------------------------------------------------------
Mr. [Jack] Nichols [of Oklahoma]: Mr. Chairman, I make a point
of order to the language in line 22, page 79, after the comma, as
follows:
And construction and repair of sidewalks and curbs around
public reservations and municipal and United States buildings,
including purchase or condemnation of streets, roads, and
alleys, and of areas less than 250 square feet at the
intersection of streets, avenues, or roads in the District of
Columbia, to be selected by the Commissioners, and including
maintenance of non-pas
[[Page 5483]]
senger-carrying motor vehicles, $150,000
Mr. Chairman, there might be a portion of that language which
may conform to existing law, but I make the point of order because
it is legislation and does not conform to existing law. Certainly
that portion which provides for the construction of sidewalks
around public reservations and municipal and United States
buildings cannot be according to existing law. . . .
The Chairman: (16) The gentleman from Oklahoma makes
a point of order to the language beginning in line 22, page 79,
down to and including line 4, on page 80
---------------------------------------------------------------------------
16. Jere Cooper (Tenn.).
---------------------------------------------------------------------------
The Chair has had occasion in several instances during the
course of the consideration of this bill to invite attention to the
so-called Gas Tax Act and the provisions therein relating to the
improvement and betterment of the streets and roads. The Chair
feels for the reasons heretofore stated in passing upon several
other points of order very similar in application to the pending
question that these improvements, such as paving, sidewalk
improvement, and all of those various activities, come within the
scope of this act to which reference has been made; therefore these
activities are authorized by existing law, and the Chair overrules
the point of order.
-- For Motor Vehicles Licenses
Sec. 14.18 An appropriation for the purchase of motor vehicle
identification plates out of the special fund created by the
District of Columbia Gasoline Tax Act was held not to be authorized
by the act.
On Apr. 2, 1937,(17) the Committee of the Whole was
considering H.R. 5996, a District of Columbia appropriation bill. At
one point the Clerk read as follows, and proceedings ensued as
indicated below:
---------------------------------------------------------------------------
17. 81 Cong. Rec. 3112, 3113, 75th Cong. 1st Sess.
---------------------------------------------------------------------------
For the purchase of motor-vehicle identification number plates,
$20,000.
Mr. [Jack] Nichols [of Oklahoma]: Mr. Chairman, I desire to
interpose a point of order against the language beginning in line
16, page 81, ``For the purchase of motor-vehicle identification
number plates, $20,000'', for the reason it is legislation on an
appropriation bill, which is contrary to the rules of the House. .
. .
The Chairman: (18) The gentleman from Oklahoma makes
a point of order against the language appearing in lines 16 and 17
on page 81. The Chair is of the opinion the so-called Gas Tax Act,
to which reference has been made on several occasions during the
consideration of this bill, does not authorize appropriation out of
that fund to provide for these identification plates, and so forth.
The Chair therefore sustains the point of order.
---------------------------------------------------------------------------
18. Jere Cooper (Tenn.).
---------------------------------------------------------------------------
Purchase of Municipal Asphalt Plant.
Sec. 14.19 Language in the District of Columbia appropria
[[Page 5484]]
tion bill authorizing the Commissioners to purchase a municipal
asphalt plant for which no authorization was cited was ruled out as
unauthorized and not in order on a general appropriation bill.
On Apr. 2, 1937, (19) during consideration in the
Committee of the Whole of the District of Columbia appropriation bill,
a point of order was raised against the following provision:
---------------------------------------------------------------------------
19. 81 Cong. Rec. 3111, 3112, 75th Cong. 1st Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
For current work of repairs to streets, avenues, roads, and
alleys, including the reconditioning of existing gravel streets
and roads; for cleaning snow and ice from streets, sidewalks,
cross walks, and gutters in the discretion of the
Commissioners; and including the purchase, exchange,
maintenance, and operation of non-passenger-carrying motor
vehicles used in this work, $800,000: Provided, That the
Commissioners of the District of Columbia, should they deem
such action to be to the advantage of the District of Columbia,
are hereby authorized to purchase a municipal asphalt plant at
a cost not to exceed $30,000: Provided further, That
appropriations contained in this act for highways, sewers, city
refuse, and the water department shall be available for snow
removal when specifically and in writing ordered by the
Commissioners.
Mr. [Jack] Nichols [of Oklahoma]: Mr. Chairman, I make a point
of order against the paragraph on page 77, beginning in line 9
after the semicolon, the following language:
And including the purchase, exchange, maintenance, and
operation of non-passenger-carrying motor vehicles used in this
work, $800,000.
I might make this in sections, Mr. Chairman, but I will make it
all at once. I make a point of order against the following language
on page 77, line 11:
Provided, That the Commissioners of the District of
Columbia, should they deem such action to be to the advantage
of the District of Columbia, are hereby authorized to purchase
a municipal asphalt plant at a cost not to exceed $30,000:
Provided further, that appropriations contained in this act for
highways, sewers, city refuse, and the water department shall
be available for snow removal when specifically and in writing
ordered by the Commissioners.
I make a point of order against these provisions on the ground
that they are legislation and change existing law. . . .
The Chairman: (20) While the Chair is constrained to
agree with many of the observations made by the gentleman from
Mississippi, yet the Chair is of the opinion that the inclusion of
the words in lines 14 and 15, as follows: ``and hereby authorized
to purchase a municipal asphalt plant'', and so forth, together
with the failure to point out to the Chair the provision of
existing law authorizing such an activity, makes this legislation
on an appropriation bill, and therefore sustains the point of
order.
---------------------------------------------------------------------------
20. Jere Cooper (Tenn.).
---------------------------------------------------------------------------
[[Page 5485]]
CHAPTER 26
Unauthorized Appropriations; Legislation on Appropriation Bills
B. APPROPRIATIONS FOR UNAUTHORIZED PURPOSES
Sec. 15. Environment and Interior
Environmental Protection Agency
Sec. 15.1 A paragraph in a general appropriation bill containing funds
to enable the Administrator of the Environmental Protection Agency
to obtain reports as to the probable adverse effect on the economy
of certain federal environmental actions, and reappropriating funds
generally available to the Administrator for the preparation of
such reports, was conceded to be unauthorized by law and was ruled
out on a point of order.
On June 23, 1971,(1) during consideration in the
Committee of the Whole of a general appropriation bill (H.R. 9270), a
point of order was raised against the following provision:
---------------------------------------------------------------------------
1. 117 Cong. Rec. 21641, 92d Cong. 1st Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
The sum of $6,300,000, together with such additional funds
as may be necessary to be derived from general administrative
funds available to the Administrator, is appropriated to enable
the Administrator to obtain, except where there is determined
to be an imminent hazard to human life, in advance of
determination of action to be taken or recommended from those
agencies of Government or other entities, governmental or
private, which are required to file reports on major Federal
actions determined to have a significant effect on the quality
of the human environment, reports as to the probable adverse
effect on the economy, including employment and unemployment,
if such action is taken and the project or proposed action is
delayed or terminated. And, if necessary, the Administrator is
authorized to reimburse the affected agency of Government or
other entities for the reasonable costs of preparing such
reports, if additional work is required.(2)
---------------------------------------------------------------------------
2. The whole paragraph was conceded to be subject to a point of order.
See H. Rept. No. 92-289.
---------------------------------------------------------------------------
Mr. [John D.] Dingell [of Michigan]: Mr. Chairman, I rise for
the purpose of making a point of order with regard to the language
appearing on page 28, lines 8 through 24, of the bill, which
constitutes, in my opinion, and also in the language in the report,
legislation on an appropriation bill and therefore is violative of
the rules of the House.
Mr. [Jamie L.] Whitten [of Mississippi]: Mr. Chairman, I would
like to be heard on the point of order and say, if I may, the
committee agrees as to the point of order on the bill. Of course,
we do not agree as to the point of order in the report. We wrote
this in the report and, if I may pursue this a little further, we
were asked to appropriate all of this money through the agency
without any safeguard being written around how it would be handled.
We did not ask for a rule on it, but until the gentleman in the
well
[[Page 5486]]
and others who are responsible, on very fine legislative
committees, get around to writing some kind of a restriction or a
guideline for this environmental protection agency and for the
administrator, we are in a bad way, in my opinion, unless we have
this language in here. It was for that reason that we wrote it in
here trying to hold the line until the legislative committees could
act. We readily concede that it is subject to a point of order, and
if the gentleman or others insist on knocking it out, all they have
to do is make the point of order. . . .
The Chairman: (3) The gentleman from Mississippi
(Mr. Whitten), concedes the point of order to the language
appearing between lines 8 and 24 on page 28 of the bill on the
ground that it does provide funds for carrying out a function not
previously authorized by enabling legislation Therefore it does
constitute legislation on an appropriation bill, and the Chair
sustains the point of order.
---------------------------------------------------------------------------
3. James C. Wright, Jr. (Tex.).
---------------------------------------------------------------------------
Federal Funds for Outside Review Board
Sec. 15.2 A paragraph in a general appropriation bill making funds
available to the Administrator of the Environmental Protection
Agency to establish an independent grant and contract review board
to review the priorities of the agency and its award of contracts
was conceded to be subject to a point of order and was ruled out as
unauthorized by law.
On June 23, 1971,(4) during consideration in the
Committee of the Whole of a general appropriation bill (H.R. 9270), a
point of order was raised against the following provision:
---------------------------------------------------------------------------
4. 117 Cong. Rec. 21641, 21642, 92d Cong. 1st Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
The sum of $2,500,000, together with such additional funds
as may be necessary to be derived from general administrative
funds available to the Administrator, is appropriated to
provide for an independent grant and contract review board made
up of qualified persons selected to review the agency's
priorities and to assume that such contracts and grants are
awarded only to qualified research agencies or individuals
consistent with national economic and environmental needs.
Mr. [John D.] Dingell [of Michigan]: Mr. Chairman, I make the
same point of order on which the Chair has just ruled, namely, that
the language beginning on page 28 at line 25 and continuing through
line 8 on page 29 again constitutes legislation in an appropriation
bill, and so is violative of the rules. Again I renew my point of
order in that this appropriation has not been previously
authorized.
The Chairman: (5) Does the gentleman from
Mississippi desire to be heard on the point of order?
---------------------------------------------------------------------------
5. James C. Wright, Jr. (Tex.).
---------------------------------------------------------------------------
Mr. [Jamie L.] Whitten [of Mississippi]: Mr. Chairman, the
committee takes the same view and concedes the point of order.
[[Page 5487]]
The Chairman: The gentleman from Mississippi concedes the point
of order, so the point of order is sustained.
River and Harbor Projects; Lump Sum
Sec. 15.3 A point of order was held not to lie against a lump-sum
appropriation for river and harbor projects on the ground that some
of the projects enumerated in the committee report for allocation
of funds had not been authorized, since language in the bill
limited use of the appropriation to ``projects authorized by law.''
On June 18, 1958,(6) the Committee of the Whole was
considering H.R. 12858. At one point the Clerk read as follows, and
proceedings ensued as indicated below:
---------------------------------------------------------------------------
6. 104 Cong. Rec. 11646, 85th Cong. 2d Sess.
---------------------------------------------------------------------------
Construction, General
For the prosecution of river and harbor, flood control, shore
protection, and related projects authorized by law; detailed
studies, and plans and specifications, of projects (including those
for development with participation or under consideration for
participation by States, local governments, or private groups)
authorized or made eligible for selection by law (but such studies
shall not constitute a commitment of the Government to
construction); and not to exceed $1,600,000 for transfer to the
Secretary of the Interior for conservation of fish and wildlife as
authorized by law; to remain available until expended $577,085,500.
. . .
Mr. [John] Taber [of New York]: Mr. Chairman, a point of order.
The Chairman: (7) The gentleman will state it.
---------------------------------------------------------------------------
7. Hale Boggs (La.).
---------------------------------------------------------------------------
Mr. Taber: Mr. Chairman, I make a point of order against the
paragraph.
The Chairman: The gentleman will state the paragraph.
Mr. Taber: The paragraph beginning page 3, line 22 and ending
on page 5, line 9, on the ground it contains funds the
appropriation which has not been authorized by law. The figure
there is $577,085,500. I am advised by the Corps of Engineers, by
letter dated June 11, 1958, that there is contained here
$57,702,253 in projects which are not authorized by law. . . .
The Chairman: The Chair is prepared to rule.
The language is very specific. As the chairman of the Committee
on Appropriations pointed out a moment ago, beginning on line 23,
page 3, the language is as follows:
For the prosecution of river and harbor, flood control,
shore protection, and related projects authorized by law.
Then further, as again pointed out by the chairman, there is
this language on the bottom of page 4:
That no part of this appropriation shall be used for
projects not authorized by law.
Now, that language, in the opinion of the Chair, is quite
specific in that none
[[Page 5488]]
of these funds, regardless of the amount involved, can be used for
any project which is not authorized by law.
The Chair overrules the point of order.
Sec. 15.4 To an appropriation bill providing a lump sum for
construction of river and harbor projects authorized by law, an
amendment to allocate part of the lump-sum appropriation to three
projects not authorized by law (although provided for in an
authorization bill which had passed the House) was ruled out of
order.
On June 19, 1958,(8) the Committee of the Whole was
considering H.R. 12858, a bill making appropriations for civil
functions administered by the Department of the Army and certain
agencies of the Department of the Interior. During consideration, a
point of order was raised and sustained against an amendment, as
follows:
---------------------------------------------------------------------------
8. 104 Cong. Rec. 11646, 11763, 11764, 85th Cong. 2d Sess.
---------------------------------------------------------------------------
Construction, General
For the prosecution of river and harbor, flood control, shore
protection, and related projects authorized by law . . .
$577,085,500. . . .
Mr. [Frank J.] Becker [of New York]: Mr. Chairman, I offer an
amendment.
The Clerk read as follows:
Amendment offered by Mr. Becker: Page 4, line 8,
immediately preceding the colon, insert the following: ``of
which $1,370,000, shall be used to initiate (1) the Fire Island
Inlet beach erosion project, in accordance with the
recommendations of the Chief of Engineers contained in House
Document No. 411, 84th Congress; (2) the Irondequoit Bay
dredging and beach erosion project in accordance with the
recommendations of the Chief of Engineers contained in House
Document No. 332, 84th Congress; and (3) the Eel River, Calif.,
flood control project in accordance with recommendations of the
Chief of Engineers contained in House Document No. 80, 85th
Congress.'' . . .
Mr. [John] Taber [of New York]: Mr. Chairman, I make a point of
order against the amendment on the ground that it is legislation on
an appropriation bill and is not authorized by law.
The Chairman: (9) Will the gentleman from New York
[Mr. Becker], as author of the amendment, cite the authority
wherein these projects are authorized by law?
---------------------------------------------------------------------------
9. Wilbur D. Mills (Ark.).
---------------------------------------------------------------------------
Mr. Becker: Mr. Chairman, these projects are not authorized by
law any more than the question which was raised yesterday on the
point of order on the previous projects and surveys. These are
authorized in the bill that was passed yesterday, the omnibus
public works bill. Therefore, I know it is not signed into law, but
it was passed by the House yesterday and this method is being used
to try to expedite the work and get the projects done.
The Chairman: The gentleman has pointed out that these projects
are in
[[Page 5489]]
cluded in the bill which passed the House on yesterday, but as the
gentleman knows that bill has not yet become law. These projects,
therefore, do not meet the requirements of eligibility and the
Chair must, therefore, under the rules sustain the point of order
made by the gentleman from New York [Mr. Taber].
Protection of Deer; Leasing of Land For
Sec. 15.5 A provision of law giving general authorization for wildlife
conservation activities was held not to authorize earmarking part
of an appropriation to be expressly ``for the leasing and
management of the lands for the protection of the Florida Key
deer.''
On Apr. 28, 1953,(10) the Committee of the Whole was
considering H.R. 4828, an Interior Department appropriation. A point of
order was raised against the following amendment:
---------------------------------------------------------------------------
10. 99 Cong. Rec. 4148, 83d Cong. 1st Sess.
---------------------------------------------------------------------------
Amendment offered by Mr. Lantaff: On page 20, line 6,
immediately following the semicolon and preceding the word ``and'',
insert the following: ``not to exceed $10,000 for the leasing and
management of the lands for the protection of the Florida Key deer,
16 U.S.C. 661.''
Mr. [John] Taber [of New York]: Mr. Chairman, I hate to do it,
but I must make a point of order against this amendment. It is not
authorized by law.
The Chairman: (11) Does the gentleman from Florida
desire to be heard on the point of order?
---------------------------------------------------------------------------
11. J. Harry McGregor (Ohio).
---------------------------------------------------------------------------
Mr. [William C.] Lantaff [of Florida]: Yes, Mr. Chairman. The
reference to the United States Code authorizes the leasing of lands
by the Department of Interior and is so cited for that purpose This
specific authorization is to authorize the leasing of land in this
particular area for this particular project and classifies it much
the same as the authorization contained in the bill for the Wichita
Mountains Wildlife Refuge and for the Crab Orchard National
Wildlife Refuge. In the bill you will find the statutory authority
cited the same as the statutory authority cited in the amendment
which I have offered. . . .
The Chairman: The Chair is ready to rule.
The Chair has inspected section 661 of title 16 of the United
States Code, the provision which the gentleman from Florida cites
as authorizing the proposal contained in his amendment. That code
section gives fairly broad authorization to the Fish and Wildlife
Service for wildlife conservation, but it does not authorize
leasing of lands or the protection of key deer. The gentleman's
amendment would earmark funds for a narrow, specific purpose, a
purpose not mentioned in the code section which is general.
Reference is made to volume VII, section 1452, of Cannon's
Precedents, under which the Chair sustains the point of order.
Parliamentarian's Note: Where the authorizing law confers discre
[[Page 5490]]
tion on an executive in allotting funds, authorization for a general
appropriation is not to be construed as authorizing an appropriation
for a specific purpose. 7 Cannon's Precedents Sec. 1452 states that,
while the appropriation of a lump sum for a general purpose authorized
by law is in order, a specific appropriation for a particular item
included in such general purpose is a limitation on the discretion of
the executive charged with allotment of the lump sum and is not in
order on an appropriation bill.
New Function of Government Created by Executive Order
Sec. 15.6 An appropriation for the Division of Geography in the
Department of the Interior, for the performance of duties imposed
by Executive order with respect to uniform usage in orthography
throughout the federal government was conceded and held not to be
authorized by law.
On May 10, 1946,(12) the Committee of the Whole was
considering H.R. 6335, an Interior Department appropriation. A point of
order was raised against the following paragraph in the bill:
---------------------------------------------------------------------------
12. 92 Cong. Rec. 4828, 79th Cong. 2d Sess.
---------------------------------------------------------------------------
Division of Geography
Salaries and expenses: For all necessary expenses of the
Division of Geography, in performing the duties imposed upon the
Secretary by Executive Order 6680, dated April 17, 1934, relating
to uniform usage in regard to geographic nomenclature and
orthography throughout the Federal Government, including personal
services in the District of Columbia, stationery and office
supplies, and printing and binding, $12,956.
Mr. [Everett M.] Dirksen [of Illinois]: Mr. Chairman, a point
of order.
The Chairman: (13) The gentleman will state it.
---------------------------------------------------------------------------
13. Jere Cooper (Tenn.)
---------------------------------------------------------------------------
Mr. Dirksen: I make a point of order against the language
appearing in lines 3 to 11 on page 3, on the ground that there is
no authority of law for the inclusion of this item. . . .
Mr. [Jed] Johnson of Oklahoma: Mr. Chairman, as much as it
deeply pains me to do so, I must concede the point of order.
The Chairman: The gentleman from Illinois makes a point of
order, which is conceded by the gentleman from Oklahoma. The point
of order is sustained.
Appropriation for Presidential Committee
Sec. 15.7 Appropriations for the National Power Policy Committee to be
used by the com
[[Page 5491]]
mittee in the performance of functions prescribed by the President,
were conceded not to be authorized by law.
On Mar. 25, 1942,(14) the Committee of the Whole was
considering H.R. 6845, an Interior Department appropriation. At one
point a point of order was raised against a portion of the following
paragraph:
---------------------------------------------------------------------------
14. 88 Cong. Rec. 2926, 77th Cong. 2d Sess.
---------------------------------------------------------------------------
Salaries: For the Secretary of the Interior, Under Secretary,
First Assistant Secretary, Assistant Secretary, and other personal
services in the District of Columbia, including a special assistant
to the Secretary of the Interior to be appointed without reference
to civil-service requirements, at a salary of not to exceed $5,000,
and including $28,520 for the National Power Policy Committee, to
be used by said committee in the performance of the functions
prescribed for it by the President of the United States,
$1,027,170: Provided, That no part of the appropriation made
available to the office of the Secretary by this section shall be
used for the broadcast of radio programs designed for or calculated
to influence the passage or defeat of any legislation pending
before the Congress.
Mr. [John] Taber [of New York]: Mr. Chairman, I make a point of
order against the words beginning in line 8, on page 74, with the
word ``and'' and including the following words which I shall read--
and including $28,520 for the National Power Policy Committee,
to be used by said committee in the performance of the
functions prescribed for it by the President of the United
States--
on the ground that this is not authorized by law, that it is
legislation on an appropriation bill, and that there is no
authority anywhere for this appropriation to the National Power
Policy Committee.
Mr. [Jed] Johnson of Oklahoma: Mr. Chairman, the words to which
the gentleman refers are conceded by the committee to be subject to
a point of order. . . .
The Chairman: (15) The gentleman from New York makes
a point of order against certain language quoted by him. The point
of order is conceded by the chairman in charge of the bill, and
therefore the point of order is sustained.
---------------------------------------------------------------------------
15. Jere Cooper (Tenn.)
---------------------------------------------------------------------------
Storage Buildings; Limitation on Funds for Unauthorized Project
Sec. 15.8 An appropriation for the construction of buildings for
storage of equipment used for forest roads and trail construction
and including a stated limit of cost for construction of any such
building was held unauthorized by law and to be legislation
establishing a total cost of construction.
On Mar. 28, 1939,(16) the Committee of the Whole was
consid
[[Page 5492]]
ering H.R. 5269, an Agriculture Department appropriation. At one point
the Clerk read as follows, and proceedings ensued as indicated below:
---------------------------------------------------------------------------
16. 84 Cong. Rec. 3458, 76th Cong. 1st Sess.
---------------------------------------------------------------------------
Forest Roads and Trails
For carrying out the provisions of section 23 of the Federal
Highway Act approved November 9, 1921 (23 U.S.C. 23), including not
to exceed $59,500 for departmental personal services in the
District of Columbia, $10,000,000, which sum consists of the
balance of the amount authorized to be appropriated for the fiscal
year 1939 by the act approved June 16, 1936 (Stat. 1520), and
$3,000,000 of the amount authorized to be appropriated for the
fiscal year 1940 by the act approved June 8, 1938 (52 Stat 635), to
be immediately available and to remain available until expended:
Provided, That this appropriation shall be available for the
rental, purchase, or construction of buildings necessary for the
storage of equipment and supplies used for road and trail
construction and maintenance, but the total cost of any such
building purchased or constructed under this authorization shall
not exceed $7,500.(17)
---------------------------------------------------------------------------
17. The latter provision could be considered an interference with
executive discretion, therefore legislation.
---------------------------------------------------------------------------
Mr. [John] Taber [of New York]: Mr. Chairman, I make the point
of order against the paragraph that this is legislation on an
appropriation bill providing for the construction of a building at
a limit beyond that authorized by law.
The Chairman: (18) Does the gentleman make the point
of order against the proviso or against the entire paragraph?
---------------------------------------------------------------------------
18. Wright Patman (Tex.).
---------------------------------------------------------------------------
Mr. Taber: Against the paragraph.
The Chairman: Does the gentleman from Missouri desire to be
heard on the point of order?
Mr. [Clarence] Cannon of Missouri: I may say, Mr. Chairman,
that this provision in the bill is the only limiting authority. If
the gentleman can cite us to some other authority establishing the
limitation, I should be pleased to have the citation. There is no
other limitation, Mr. Chairman, and the point of order is not well
taken.
Mr. Taber: There is no authorization for it at all.
The Chairman: The point of order is sustained.
Authority to Make Payroll Deductions
Sec. 15.9 Language in a general appropriation bill providing that the
Secretary of the Interior, in his administration of the Bureau of
Reclamation, is authorized to contract for medical services for
employees and to make necessary payroll deductions agreed to by the
employees, was held unauthorized by law.
The provision and the ruling thereon by the Chairman are discussed
in the following section.(19)
---------------------------------------------------------------------------
19. Sec. 15.10, infra.
---------------------------------------------------------------------------
[[Page 5493]]
Authority to Settle Claims
Sec. 15.10 Language in a general appropriation bill providing in part
an appropriation for payment of damages caused to the owners of
lands by reason of the operations of the United States in the
construction of irrigation works which may be ``compromised by
agreement between the claimants and the Secretary of the Interior,
or such officers as he may designate,'' was held to constitute
legislation.
On Mar. 1, 1938,(20) the Committee of the Whole was
considering H.R. 9621, an Interior Department appropriation. At one
point points of order were directed to portions of the following
paragraph:
---------------------------------------------------------------------------
20. 83 Cong. Rec. 2655, 75th Cong. 3d Sess.
---------------------------------------------------------------------------
Administrative provisions and limitations: For all expenditures
authorized by the act of June 17, 1902, and acts amendatory thereof
or supplementary thereto, known as the reclamation law, and all
other acts under which expenditures from said fund are authorized,
including . . . payment of damages caused to the owners of lands or
other private property of any kind by reason of the operations of
the United States, its officers or employees, in the survey,
construction, operation, or maintenance of irrigation works, and
which may be compromised by agreement between claimant and the
Secretary of the Interior, or such officers as he may designate . .
. Provided, That the Secretary of the Interior in his
administration of the Bureau of Reclamation is authorized to
contract for medical attention and service for employees and to
make necessary pay-roll deductions agreed to by the employees
therefor. . . .
Mr. [John] Taber [of New York]: Mr. Chairman, I make the point
of order against the paragraph that it is legislation on an
appropriation bill and contains items not authorized by law.
I call the attention of the Chair to the language on page 72,
line 22, ``examination of estimates for appropriations in the
field,'' and at the bottom of the page, ``for lithographing,
engraving, printing, and binding,'' and in line 20 of the same
page, ``for photographing and making photographic prints,'' and
then at the top of page 73, ``purchase of rubber boots for official
use by employees,'' and in the middle of the page, at line 12,
``and which may be compromised by agreement between the claimant
and the Secretary of the Interior or such officers as he may
designate,'' giving him authority to do things that the law does
not authorize. . . .
The Chairman: (1) The Chair is of opinion that the
paragraph is subject to the point of order for two reasons. First,
page 73, line 12, after the word ``works'', the language--
---------------------------------------------------------------------------
1. Marvin Jones (Tex.)
---------------------------------------------------------------------------
and which may be compromised by agreement between the claimant
and the Secretary of the Interior, or such officers as he may
designate.
[[Page 5494]]
Then, going down to the last line on page 73, after the colon,
the language:
Provided, That the Secretary of the Interior in his
administration of the Bureau of Reclamation is authorized to
contract for medical attention and services for employees and
to make necessary pay-roll deductions agreed to by the
employees therefor.
For these reasons the Chair sustains the point of order.
Division of Grazing; Travel and Per Diem
Sec. 15.11 Language in a general appropriation bill providing payment
of a salary of $5 per diem and necessary travel expenses of members
of advisory committees of local stockmen under the Division of
Grazing in the Department of the Interior, was held unauthorized by
law.
On Feb. 28, 1938, (2) the Committee of the Whole was
considering H.R. 9621, an Interior Department appropriation, when the
following paragraph was read:
---------------------------------------------------------------------------
2. 83 Cong. Rec. 2548, 75th Cong. 3d Sess.
---------------------------------------------------------------------------
Division of Grazing
For carrying out the provisions of the act entitled ``An act to
stop injury to the public grazing lands by preventing overgrazing
and soil deterioration, to provide for their orderly use,
improvement, and development, to stabilize the livestock industry
dependent upon the public range, and for other purposes,'' . . .
not to exceed $1,000 for expenses of attendance at meetings
concerned with the work of the Division of Grazing when authorized
by the Secretary of the Interior, $550,000; (for payment of a
salary of $5 per diem while actually employed and for the payment
of necessary travel expenses, exclusive of subsistence, of members
of advisory committees of local stockmen, $100,000); in all,
$650,000.
Mr. [John] Taber [of New York]: Mr. Chairman, I make a point of
order against the language beginning with the word ``for''
[following the figure of $550,000] down to the dollar sign
``$100,000'', in line 12, on the ground it is not authorized by
law.
Mr. [Jed] Johnson [of Oklahoma]: Mr. Chairman, we admit this is
legislation, but it is extremely desirable and I hope the gentleman
will not press the point of order.
Mr. Taber: Mr. Chairman, the appropriation for this item is all
out of line with the justification given at the hearings and,
frankly, I shall have to insist on my point of order.
The Chairman: (3) The Chair is ready to rule.
---------------------------------------------------------------------------
3. Marvin Jones (Tex.)
---------------------------------------------------------------------------
The gentleman from New York [Mr. Taber] makes a point of order
against the language beginning with the word ``for'', line 8, page
5, and continuing down to and including the word ``$650,000'', in
line 12 of the same page.
This being in the form of legislation it is clearly subject to
the point of order, and the Chair therefore sustains the point of
order.
[[Page 5495]]
Fund for Emergencies of Confidential Character
Sec. 15.12 Language in a general appropriation bill providing for an
appropriation for the Division of Investigations in the Department
of the Interior, to be expended under the direction of the
Secretary of the Interior to meet unforeseen emergencies of a
confidential character was held unauthorized by law.
On Feb. 28, 1938,(4) the Committee of the Whole was
considering H.R. 9621, an Interior Department appropriation. A point of
order was sustained against the following paragraph because of language
included therein:
---------------------------------------------------------------------------
4. 83 Cong. Rec. 2545, 75th Cong. 3d Sess.
---------------------------------------------------------------------------
For investigating official matters under the control of the
Department of the Interior; for protecting timber on the public
lands, and for the more efficient execution of the law and rules
relating to the cutting thereof; for protecting public lands from
illegal and fraudulent entry or appropriation; for adjusting claims
for swamplands and indemnity for swamplands; and for traveling
expenses of agents and others employed hereunder, $440,000,
including not exceeding $34,000 for personal services in the
District of Columbia; not exceeding $38,000 for the purchase,
exchange, operation, and maintenance of motor-propelled passenger-
carrying vehicles and motorboats for the use of agents and others
employed in the field service; [and not to exceed $5,000 to meet
unforeseen emergencies of a confidential character,] to be expended
under the direction of the Secretary of the Interior, who shall
make a certificate of the amount of such expenditure as he may
think is advisable not to specify, and every such certificate shall
be deemed a sufficient voucher for the sum therein expressed to
have been expended.
Mr. [Robert L.] Bacon [of New York]: Mr. Chairman, I make the
point of order against the paragraph, because it sets up a new
division of investigation for which there is no authority of law.
This division of investigation was originally created as an
emergency in connection with the work of the Public Works program.
They now seek to continue it as a permanent proposition, although
the Public Works program is on its way out, and no new contracts
are being let. This is an entirely new provision for which there is
no authority of law, and it is clearly legislation on an
appropriation bill. . . .
The Chairman: (5) The Chair is ready to rule. The
provision on page 4, lines 5 and 6, which provides that not to
exceed $5,000 to meet unforeseen emergencies of a confidential
character may be expended, is clearly not authorized by existing
law. The Chair sustains the point of order to the paragraph,
without considering the other points.
---------------------------------------------------------------------------
5. Marvin Jones (Tex.).
---------------------------------------------------------------------------
Timber Protection
Sec. 15.13 An appropriation for a Division of Investigations,
[[Page 5496]]
for protecting timber on public lands, was held authorized under
existing law.
On Feb. 28, 1938,(6) the Committee of the Whole was
considering H.R. 9621, an Interior Department appropriation. A point of
order was raised against the following amendment:
---------------------------------------------------------------------------
6. 83 Cong. Rec. 2545, 75th Cong. 3d Sess.
---------------------------------------------------------------------------
Division of Investigations
For protecting timber on the public lands, and for the more
efficient execution of the law and rules relating to the cutting
thereof; for protecting public lands from illegal and fraudulent
entry or appropriation; for adjusting claims for swamplands and
indemnity for swamplands; and for traveling expenses of agents and
others employed hereunder, $440,000, including not exceeding
$34,000 for personal services in the District of Columbia; not
exceeding $38,000 for the purchase, exchange, operation, and
maintenance of motor-propelled passenger-carrying vehicles and
motorboats for the use of agents and others employed in the field
service.
Mr. [John] Taber [of New York]: Mr. Chairman, I make the point
of order against the paragraph. There is no authority of law for a
division of investigating. Some of the things that are specified
there may be authorized, but a division of investigation is not
authorized.
Mr. [Jed] Johnson of Oklahoma: Mr. Chairman, this is merely the
name of the organization which is carrying on this work, which is
clearly authorized by title XVI, chapter 4, United States Code, and
certainly is not subject to the point of order.
The Chairman: (7) The Chair is ready to rule. The
language embodied in the amendment proper is clearly authorized by
existing law for protecting timber, and so forth. It seems clear
that incidental to such authority the power to conduct the
investigation in the handling of that and to properly handle it,
would be entirely in order. The Chair overrules the point of order.
---------------------------------------------------------------------------
7. Marvin Jones (Tex.).
---------------------------------------------------------------------------
Virgin Islands Deficits
Sec. 15.14 An appropriation for defraying the deficits in the
treasuries of the municipal governments of the St. Thomas and St.
John Islands was held not to be authorized by law.
On May 20, 1937,(8) the Committee of the Whole was
considering H.R. 6958, an Interior Department appropriation. A point of
order was sustained against the following paragraph for the reasons
stated:
---------------------------------------------------------------------------
8. 81 Cong. Rec. 4873, 75th Cong. 1st Sess.
---------------------------------------------------------------------------
For defraying the deficits in the treasuries of the municipal
governments because of the excess of current expenses over current
revenues for the fiscal year 1938, municipality of St. Thomas and
St. John, $60,000, and municipality of St. Croix, $50,000; in
[[Page 5497]]
all, $110,000, to be paid to the said treasuries in monthly
installments.
Mr. [Bertrand H.] Snell [of New York]: Mr. Chairman, I reserve
the point of order on lines 9 to 14, page 126, to ask some
questions of the chairman of the committee. What provision of law
is there providing that we should pay the deficits of the
municipalities of the Virgin Islands, as carried in lines 9 to 14?
Mr. [Jed] Johnson of Oklahoma: I will say to the gentleman that
the authority for the administration of the Virgin Islands is to be
found in title 48, section 1391, United States Code. Although there
is no specific provision of law providing for the payment of
deficits of a municipality, the committee felt that the law is
sufficiently broad to grant authority for this purpose. . . .
Mr. Chairman, I read from section 1391:
Under jurisdiction of the Governor; except as provided in
this chapter, all military, civil, and judicial powers of the
United States to govern the West India Islands acquired from
Denmark, shall be vested in the Governor and in such person or
persons as the President shall direct. The Congress shall
provide for the government of said islands; provided that the
President may assign an officer of the Army or the Navy to
serve as such Governor--
And so forth. This is the section that the Budget referred the
committee to, and it will be noted that the authority is general
but broad in its scope.
Mr. Snell: I do not see anything in there that says that the
Federal Government is responsible for all municipal deficits.
Mr. Johnson of Oklahoma: Nor do I see the specific authority,
but I will say to the gentleman that this item has been carried in
the bill year after year and no one has ever raised the question as
to the authority heretofore. Undoubtedly it was the intent of
Congress to confer that authority. . . .
The Chairman: (9) The Chair is prepared to rule.
---------------------------------------------------------------------------
9. Jere Cooper (Tenn.).
---------------------------------------------------------------------------
The gentleman from New York [Mr. Snell] makes a point of order
against the paragraph appearing in lines 9 to 14, inclusive, on
page 126 of the bill on the ground that the appropriation there
sought to be made is not authorized by existing law.
The Chair has examined section 1391 of title 48 of the United
States Code, to which reference was made by the gentleman from
Oklahoma [Mr. Johnson]. It appears to the Chair that this provision
of law authorizes the establishment of a government for the West
Indies Islands, acquired from Denmark, and vests certain
discretionary authority in the President until the Congress shall
provide for the government of said islands. The Chair is unable to
find any definite, specific provision of law included in this
section which, in the opinion of the Chair, would authorize the
appropriation here sought to be made.
The Chair has likewise examined the act of Congress approved
June 22, 1936, to provide a civil government for the Virgin Islands
of the United States, and in neither the provision of law cited by
the gentleman from Oklahoma nor the act to which the Chair has
referred does the Chair find sufficient authority of law to
authorize appropriations for municipal deficits in the
municipalities set out in this provision of the bill.
[[Page 5498]]
The Chair is of the opinion that the appropriation is not
authorized by existing law, as it is here sought to be made, and
therefore sustains the point of order.
Streets Adjacent to National Park
Sec. 15.15 A proposition to resurface city streets adjacent to Hot
Springs National Park was held to be without authority of law.
On May 14, 1941,(10) the Committee of the Whole was
considering H.R. 4590, an Interior Department appropriation bill. The
Clerk read as follows, and proceedings ensued as indicated below:
---------------------------------------------------------------------------
10. 87 Cong. Rec. 4057, 4058, 77th Cong. 1st Sess.
---------------------------------------------------------------------------
Hot Springs National Park, Ark.: For administration,
protection, maintenance, and improvement, including not exceeding
$1,400 for the purchase, maintenance, operation, and repair of
motor-driven passenger-carrying vehicles for the use of the
superintendent and employees in connection with general park work,
$77,890.
Mr. [William F.] Norrell [of Arkansas]: Mr. Chairman, I offer
an amendment, which I send to the Clerk's desk.
The Clerk read as follows:
Amendment offered by Mr. Norrell: On page 109, line 8,
after the word ``work'', strike out the sum ``$77,890'', and
insert ``including not exceeding $7,000 for payment of the
Federal Government's share of resurfacing and reconstructing of
Reserve Avenue from its intersection with Cottage Street at the
entrance to the Army and Navy Hospital northeasterly to its
intersection with Palm Street and that portion of Spring Street
and Laurel Street immediately adjacent to and surrounding the
grounds on which the Government free bathhouses are located,
$84,890.''
Mr. [Albert E.] Carter [of California]: Mr. Chairman, I make a
point of order against the amendment on the ground it is not
authorized by law. . . .
The Chairman: (11) Permit the Chair to inquire of
the gentleman from Arkansas who owns the street that is here sought
to be paved? . . .
---------------------------------------------------------------------------
11. Jere Cooper (Tenn.).
---------------------------------------------------------------------------
Mr. [Jed] Johnson of Oklahoma: Answering the Chair, I am
compelled to say that the Park Service advises the committee that
the city has jurisdiction over that street, and in fact owns the
street. That is the information given the committee. The title is
in the city. . . .
Mr. Norrell: I am prepared to advise the Chairman that the
Federal Government owns the fee-simple title to one-half of that
street, notwithstanding anything that the Department of the
Interior might say.
The Chairman: The Chair is prepared to rule. The gentleman from
Arkansas offers an amendment which has been reported by the Clerk.
The gentleman from California [Mr. Carter] makes the point of order
against the amendment on the ground that it is not authorized by
law. The Chair in
[[Page 5499]]
vites the attention of the gentleman from Arkansas to section 3779,
volume 4, Hinds' Precedents, which appears to the Chair to be
directly in point on the question presented. This section reads as
follows:
A proposition to repair paving originally laid by the
Government in a city street adjacent to a public building was
held not to be in continuation of a public work.
A proposition to pave city streets adjacent to a public
building was held to be without authority of law.
By reason of that decision and that precedent, the Chair
feels that he is compelled to sustain the point of order. The
Chair therefore sustains the point of order, and the Clerk will
read.
Telephones in Government-owned Residences
Sec. 15.16 Installation of telephones in government-owned residences
occupied by employees of the National Park Service was held to be
authorized by law.
On Mar. 16, 1939,(12) the Committee of the Whole was
considering H.R. 4852, an Interior Department appropriation. The
following amendment was the subject of a point of order:
---------------------------------------------------------------------------
12. 84 Cong. Rec. 2893, 76th Cong. 1st Sess.
---------------------------------------------------------------------------
Amendment offered by Mr. [Jed] Johnson of Oklahoma: On page
117, after line 8, insert:
Appropriations herein made for the National Park Service
shall be available for the installation and operation of
telephones in Government-owned residences, apartments, or
quarters occupied by employees of the National Park Service.
Mr. [John] Taber [of New York]: Mr. Chairman, I make a point of
order against that amendment in that it goes so far as to include
quarters occupied by employees of the National Park Service, which
is beyond the authority of the law.
Mr. Johnson of Oklahoma: Mr. Chairman, these are Government-
owned residences and this service is a necessary incident to the
proper carrying out of the work of the Department of the Interior.
If the residences in question were privately owned, there might be
a question about the point of order, but certainly the language to
which the gentleman objects could not possibly be construed as
being subject to a point of order under the circumstances and facts
stated.
The Chairman: (13) The Chair is ready to rule. If
the cottages, residences, and so forth, were privately owned, the
point of order made by the gentleman from New York [Mr. Taber]
might lie, but these are entirely Government-owned residences and
the installation appears to be necessary and incident to the
operation of the National Park Service, and for that reason the
point of order is overruled.
---------------------------------------------------------------------------
13. Frank H. Buck (Calif.).
---------------------------------------------------------------------------
Park Service--Educational Services
Sec. 15.17 An appropriation for the development of edu
[[Page 5500]]
cational work of the National Park Service was held authorized
under the law stating the fundamental purpose of parks, monuments,
and reservations to be to conserve the scenery and the natural and
historic objects and to provide for the enjoyment of the same in
such manner as would leave them unimpaired for the enjoyment of
future generations.
On Mar. 16, 1939,(14) the Committee of the Whole was
considering H.R. 4852, an Interior Department appropriation. A point of
order was directed against the bracketed language in the following
paragraph:
---------------------------------------------------------------------------
14. 84 Cong. Rec. 2890, 2891, 76th Cong. 1st Sess.
---------------------------------------------------------------------------
National Park Service
Salaries: For the Director of the National Park Service and
other personal services in the District of Columbia, including
accounting services in checking and verifying the accounts and
records of the various operators, licensees, and permittees
conducting utilities and other enterprises within the national
parks and monuments, and including the services of specialists and
experts for investigations and examinations of lands to determine
their suitability for national-park and national-monument purposes:
Provided, That such specialists and experts may be employed for
temporary service at rates to be fixed by the Secretary of the
Interior to correspond to those established by the Classification
Act of 1923, as amended, and without reference to the Civil Service
Act of January 16, 1883, $259,580, of which amount not to exceed
$19,200 may be expended for the services of field employees engaged
in examination of lands [and in developing the educational work of
the National Park Service. . . .]
Mr. [John] Taber [of New York]: Mr. Chairman, I make a point of
order against the language appearing in lines 3 and 4, on page 105,
reading, ``and in developing the educational work'' on the ground
that there is no law authorizing the Department to go into
educational work. . . .
The Chairman: (15) The Chair is ready to rule.
---------------------------------------------------------------------------
15. Frank H. Buck (Calif.).
---------------------------------------------------------------------------
The section that the gentleman from Oklahoma has called
attention to is the basic law governing the National Park Service,
and provides for the enjoyment of the same in such manner and by
such means as will leave it unimpaired for the enjoyment of future
generations.
Certainly the education that may be offered by the National
Park Service in dealing with its own features and wildlife is a
means which will leave the parks unimpaired for the enjoyment of
future generations.
In addition to that, may the Chair call the attention of the
Committee to a ruling made on March 2, 1938, in the Committee of
the Whole when it was considering the Interior Department
appropriation bill, at which time a point of order was made against
the paragraph that follows this one be
[[Page 5501]]
cause of the motion-picture feature. The Chairman at that time
ruled that this was a necessary incident to the carrying on of the
activities of the National Park Service and certainly must be
regarded as in part, at least, educational.
Under that precedent and with the Chair's present understanding
of the purport of the basic law, the Chair overrules the point of
order.
-- Educational Lectures
Sec. 15.18 An appropriation for educational lectures in national parks
and other reservations under the National Park Service was held
authorized under the law stating the fundamental purpose of such
parks and reservations to be to conserve the natural and historical
objects and to provide for the enjoyment of the same in such manner
as to leave them unimpaired for the enjoyment of future
generations.
On Mar. 16, 1939,(16) the Committee of the Whole was
considering H.R. 4852, an Interior Department appropriation At one
point the Clerk read as follows, and proceedings ensued as indicated
below:
---------------------------------------------------------------------------
16. 84 Cong. Rec. 2893, 76th Cong. 1st Sess.
---------------------------------------------------------------------------
Appropriations herein made for the national parks, national
monuments, and other reservations under the jurisdiction of the
National Park Service, shall be available for the giving of
educational lectures therein; for the services of field employees
in cooperation with such nonprofit scientific and historical
societies engaged in educational work in the various parks and
monuments as the Secretary, in his discretion, may designate; and
for travel expenses of employees attending Government camps for
training in forest-fire prevention and suppression.
Mr. [Robert F.] Rich [of Pennsylvania]: Mr. Chairman, on page
116, at line 23, where it states ``shall be available for the
giving of educational lectures therein,'' I make a point of order
against that language.
The Chairman: (17) The Chair overrules the point of
order for the same reason that a similar point of order has been
overruled.(18)
---------------------------------------------------------------------------
17. Frank H. Buck (Calif.).
18. See Sec. 15.17, supra.
---------------------------------------------------------------------------
Park Service Photographic Supplies
Sec. 15.19 Language in a general appropriation bill providing
appropriations for photographic supplies, prints, and motion
picture films for the National Park Service was held authorized by
law since incidental to the work of the Service.
On Mar. 2, 1938,(19) the Committee of the Whole was
consid
[[Page 5502]]
ering H.R. 9621, an Interior Department appropriation. The following
paragraph was the subject of a point of order:
---------------------------------------------------------------------------
19. 83 Cong. Rec. 2715, 2716, 75th Cong. 3d Sess.
---------------------------------------------------------------------------
General expenses: For every expenditure requisite for and
incident to the authorized work of the office of the Director of
the National Park Service not herein provided for, including
traveling expenses, telegrams, photographic supplies, prints, and
motion-picture films, necessary expenses of attendance at meetings
concerned with the work of the National Park Service when
authorized by the Secretary of the Interior, and necessary expenses
of field employees engaged in examination of lands and in
developing the educational work of the National Park Service,
$28,500: Provided, That necessary expenses of field employees in
attendance at such meetings, when authorized by the Secretary,
shall be paid from the various park and monument appropriations.
Mr. [Robert F.] Rich [of Pennsylvania]: Mr. Chairman, I make a
point of order against this paragraph, because the motion-picture
feature of it is not authorized by law. . .
The Chairman: (20) The Chair is of the opinion that
this is a necessary incident to the carrying on of the National
Park Service, and, therefore, overrules the point of order.
---------------------------------------------------------------------------
20. Marvin Jones (Tex.).
---------------------------------------------------------------------------
Boulder Canyon Project
Sec.15.20 An appropriation for the continuation of construction of a
diversion dam and main canal as part of the Boulder Canyon project
was held to be authorized by the Boulder Canyon Act.
On Jan. 31, 1936,(1) the Committee of the Whole was
considering H.R. 10630, a Department of the Interior appropriation
bill. At one point the Clerk read as follows, and proceedings ensued as
indicated below:
---------------------------------------------------------------------------
1. 80 Cong. Rec. 1312, 1313, 74th Cong. 2d Sess.
---------------------------------------------------------------------------
Amendment by Mr. [Edward T.] Taylor of Colorado for the
committee: On page 69, after line 9, insert a new paragraph to read
as follows:
``Boulder Canyon project (All-American Canal): For continuation
of construction of a diversion dam and main canal (and appurtenant
structures) located entirely within the United States connecting
the diversion dam with the Imperial and Coachella Valleys in
California; to acquire by proceedings in eminent domain or
otherwise all lands, rights-of-way, and other property necessary
for such purposes; and for incidental operations, as authorized by
the Boulder Canyon Project Act, approved December 21, 1928 (U.S.C.,
Supp. VII, title 43, ch. 12-a), to be immediately available and to
remain available until advanced to the Colorado River Dam fund,
$6,500,000, and for all other objects of expenditure that are
specified for projects included in the Interior Department
Appropriation Act for the fiscal year 1937 under the caption
`Bureau of Reclamation.' '
Mr. [John] Taber [of New York]: Mr. Chairman, I make the point
of
[[Page 5503]]
order against the amendment that it is an appropriation not
authorized by law. . .
The Chairman: (2) The Chair will state that the
appropriation proposed in the amendment offered by the gentleman
from Colorado (Mr. Taylor) is authorized by the Boulder Canyon
Project Act (U.S.C., title 43, sec. 617), a portion of which the
Chair will read:
---------------------------------------------------------------------------
2. Robert L. Doughton (N.C.).
---------------------------------------------------------------------------
And incidental works in the main stream of the Colorado
River at Black Canyon or Boulder Canyon adequate to create a
storage reservoir of a capacity of not less than 20,000,000
acre-feet of water and a main canal and appurtenant structures
located entirely within the United States connecting the Laguna
Dam, or other suitable diversion dam, which the Secretary of
the Interior is hereby authorized to construct if deemed
necessary or advisable by him upon engineering or economic
consideration with the Imperial and Coachella Valleys, Calif.
That provision of law seems to the Chair to authorize the
appropriation; therefore, the point of order is overruled.
Indian Affairs
Sec. 15.21 An amendment making an appropriation for financial
assistance to public school districts, for the construction and
equipment of public school facilities for Navaho Indian children
from reservation areas not included in such districts, was held to
be authorized by law.
On July 22, 1954,(3) he Committee of the Whole was
considering H.R. 9936, a supplemental appropriation bill. The following
proceedings took place:
---------------------------------------------------------------------------
3. 100 Cong. Rec. 11451, 11452, 83d Cong. 2d Sess.
---------------------------------------------------------------------------
Mr. [John J.] Rhodes of Arizona: Mr. Chairman, I offer a
further amendment:
Page 10, line 7, strike out ``$3,900,000'' and insert in
lieu thereof ``$6,900,000.''
Page 10, line 8, after the word ``expended'', insert the
following: ``which sum is composed of $3,000,000 to provide
financial assistance to public-school districts, for the
construction and equipment of public-school facilities for
Navaho Indian children from reservation areas not included in
such districts, and $3,900,000 for payments under contracts or
other obligations entered into pursuant to section 6 of the
Federal Aid Highway Act of 1954 (38 Stat. 73).''
Mr. [William F.] Norrell [of Arkansas]: Mr. Chairman, I make
the point of order against the amendment that it is legislation on
an appropriation bill. . .
The Chairman: (4) The Chair is ready to rule. The
Chair has examined the Rehabilitation Act of the Indian tribes and
feels that it is broad enough to cover the amendment. In title 25
of the United States Code, where the Navaho and Hopi Rehabilitation
Act is codified, section 631 authorizes a broad program of
rehabilitation, expressly including ``school buildings and
equipment, and other educational measures'' and funds appropriated
for such pur
[[Page 5504]]
poses are authorized to be available ``for all other objects
necessary for or appropriate to the carrying out of the provisions
of this section.'' Section 452 of title 25 of the United States
Code authorizes the Secretary of the Interior to contract with
States or subdivisions thereof for the education of Indians.
Therefore, the appropriation set forth in the amendment in the
opinion of the Chair is authorized by law, and the point of order
is overruled.
---------------------------------------------------------------------------
4. Leo E. Allen (Ill.).
---------------------------------------------------------------------------
Smithsonian Institution
Sec. 15.22 An appropriation for salaries and expenses for
anthropological research among the American Indians and the natives
of Hawaii ``and other lands under the jurisdiction or protection of
the United States'' was held unauthorized by law.
On Feb. 8, 1945,(5) during consideration in the
Committee of the Whole of the independent offices appropriation bill
(H.R. 1984), a point of order was sustained against the following
provision:
---------------------------------------------------------------------------
5. 91 Cong. Rec. 953, 79th Cong. 1st Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
[Smithsonian Institution]
Salaries and expenses: For all salaries and expenses
necessary for continuing preservation, exhibition, and increase
of collections from the surveying and exploring expeditions of
the Government and from other sources; for the system of
international exchanges between the United States and foreign
countries; for anthropological researches among the American
Indians and the natives of Hawaii and other lands under the
jurisdiction or protection of the United States, and the
excavation and preservation of archeological remains. . . .
Mr. [Francis H.] Case of South Dakota: Mr. Chairman, I make a
point of order against certain language on page 50, lines 18 and
19, under the heading ``Smithsonian Institution,'' as follows:
And other lands under the jurisdiction and protection of
the United States.
Mr. [Clifton A.] Woodrum of Virginia: Mr. Chairman, I concede
the point of order.
The Chairman: (6) The point of order is sustained.
---------------------------------------------------------------------------
6. William M. Whittington (Miss.)
---------------------------------------------------------------------------
Expenses of Indian Tribal Councils
Sec. 15.23 Appropriations for expenses of tribal councils for travel,
including supplies and equipment, $5 per day in lieu of
subsistence, and 5 cents per mile for use of automobiles (including
visits to Washington, D.C.) when authorized and approved by the
Commissioner of Indian Affairs, was held not authorized by law and
to include legislation.
[[Page 5505]]
On Mar. 1, 1938,(7) the Committee of the Whole was
considering H.R. 9621, an Interior Department appropriation. When the
following amendment was offered, a point of order was raised against
certain of its provisions:
---------------------------------------------------------------------------
7. 83 Cong. Rec. 2646, 75th Cong. 3d Sess.
---------------------------------------------------------------------------
Amendment offered by Mr. Johnson of Oklahoma: Page 63, line 8,
insert:
``Expenses of tribal councils or committees thereof (tribal
funds): For traveling and other expenses of members of tribal
councils, business committees, or other tribal organizations, when
engaged on business of the tribes, including supplies and
equipment, not to exceed $5 per diem in lieu of subsistence, and
not to exceed 5 cents per mile for use of personally owned
automobiles, and including visits to Washington, D.C., when duly
authorized or approved in advance by the Commissioner of Indian
Affairs, $50,000, payable from funds on deposit to the credit of
the particular tribe interested: Provided, That except for the
Navajo Tribe, not more than $5,000 shall be expended from the funds
of any one tribe or band of Indians for the purposes herein
specified.''
Mr. [John] Taber [of New York]: Mr. Chairman, I make the point
of order against the amendment that it is not authorized by law and
that it creates additional duties for the Commissioner of Indian
Affairs and, generally, that the entire matter is unauthorized.
Mr. [Jed] Johnson of Oklahoma: Mr. Chairman, this is authorized
under the Snyder Act, and I call attention to title 25, section 13,
which clearly authorizes this expenditure. . . .
The Chairman: (8) The Chair is ready to rule. . . .
---------------------------------------------------------------------------
8. Marvin Jones (Tex.).
---------------------------------------------------------------------------
The item to which attention has been called in the last
paragraph of section 13, title 25, United States Code, includes the
following language:
And for general and incidental expenses in connection with
the administration of Indian affairs.
It does not seem to the Chair that this language is sufficient
to include the various items that are included in the amendment
offered by the gentleman from Oklahoma, and the Chair therefore
feels constrained to sustain the point of order.
Assistance to Indians
Sec. 15.24 Language in a general appropriation bill providing an
appropriation for advances to Indians having irrigable allotments,
to assist them in the development and cultivation thereof and
thereby to enable Indians to become self-supporting, was held to be
within the broad authority to appropriate for assistance of
Indians, authorized by law and in order.
On Mar. 1, 1938,(9) the Committee of the Whole was
considering H.R. 9621, an Interior De
[[Page 5506]]
partment appropriation. At one point the Clerk read as follows, and
proceedings ensued as indicated below:
---------------------------------------------------------------------------
9. 83 Cong. Rec. 2638, 75th Cong. 3d Sess.
---------------------------------------------------------------------------
Amendment offered by Mr. [Jed] Johnson of Oklahoma: Page 28,
after line 10, insert a new paragraph as follows:
``For the purpose of encouraging industry and self-support
among the Indians and to aid them in the culture of fruits, grains,
and other crops, $240,000, which sum may be advanced to Indians for
the purchase of seeds, animals, machinery, tools, implements, and
other equipment necessary, and for advances to Indians having
irrigable allotments to assist them in the development and
cultivation thereof, in the discretion of the Secretary of the
Interior, to enable Indians to become self-supporting: Provided,
That not to exceed $75,000 of the amount herein appropriated,
together with $50,000 made available for this purpose under this
head in the Interior Department Appropriation Act for the fiscal
year 1938, and hereby continued available for the same purpose for
the fiscal year 1939, may be advanced to the Navajo Tribe of
Indians for the purchase, feeding, sale, or other disposition of
sheep, goats, and other livestock belonging to the Navajo
Indians.''
Mr. [John] Taber [of New York]: Mr. Chairman, I make the point
of order against the amendment that it is legislation on an
appropriation bill, not authorized by law. I make the point of
order particularly to that part of the amendment which relates to
advances to the Indians having irrigable lands. There is no
authority for that provision. . . .
The Chairman: (10) The Chair is ready to rule.
The point of order is made to that provision of the amendment
which authorizes advances to Indians having irrigable allotments,
to assist them in the development and cultivation thereof, in the
discretion of the Secretary of the Interior.
---------------------------------------------------------------------------
10. Marvin Jones (Tex.).
---------------------------------------------------------------------------
Referring to title 25, United States Code, section 13, under
the heading ``Expenditure of appropriations by Bureau of Indian
Affairs,'' the Chair finds that the Bureau is authorized to spend--
such moneys as Congress may from time to time appropriate, for
the benefit, care, and assistance of the Indians throughout the
United States for the following purposes.
Among these purposes are listed the following:
General support and civilization, including education.
For industrial assistance and advancement and general
administration of Indian property.
For extension, improvement, operation, and maintenance of
existing Indian irrigation systems, and for development of
water supplies.
It seems clear to the Chair the appropriation is authorized
under the terms of that act, and the point of order is, therefore,
overruled.
Parliamentarian's Note: The discretionary authority given to the
Secretary was not specifically mentioned in the point of order and was
not the basis of the Chair's ruling.
[[Page 5507]]
Indian Forest Lands
Sec. 15.25 An appropriation for the administration of Indian forest
lands from which timber was sold, to be available for the expenses
of such administration ``to the extent only that proceeds from the
sales of timber . . . are insufficient for that purpose,'' was
authorized by the Snyder Act.
On May 14, 1937,(11) the Committee of the Whole was
considering H.R. 6958, an Interior Department appropriation bill. A
point of order against the following paragraph was overruled:
---------------------------------------------------------------------------
11. 81 Cong. Rec. 4596, 4597, 75th Cong. 1st Sess.
---------------------------------------------------------------------------
For the preservation of timber on Indian reservations and
allotments other than the Menominee Indian Reservation in
Wisconsin, the education of Indians in the proper care of forests,
and the general administration of forestry and grazing work,
including fire prevention and payment of reasonable rewards for
information leading to arrest and conviction of a person or persons
setting forest fires, or taking or otherwise destroying timber, in
contravention of law on Indian lands, $260,000: Provided, That this
appropriation shall be available for the expenses of administration
of Indian forest lands from which timber is sold to the extent only
that proceeds from the sales of timber from such lands are
insufficient for that purpose. . . .(12)
---------------------------------------------------------------------------
12. The latter provision could actually be regarded as a limitation.
---------------------------------------------------------------------------
Mr. [Richard B.] Wigglesworth [of Massachusetts]: Mr Chairman,
I make the point of order.
The Chairman: (13) The gentleman will state the
point of order.
---------------------------------------------------------------------------
13. Jere Cooper (Tenn.).
---------------------------------------------------------------------------
Mr. Wigglesworth: I make the point of order on the paragraph
upon the ground that it is legislation on an appropriation bill.
The Chairman: Will the gentleman kindly indicate just what
there is in the paragraph that constitutes legislation on an
appropriation?
Mr. Wigglesworth: I call the Chair's attention particularly to
the proviso at the conclusion of the paragraph.
The Chairman: In what respect does the gentleman hold that that
proviso constitutes legislation?
Mr. Wigglesworth: It seems to me that the language is clearly
legislative in character and imposes additional duties to those now
in existence. . . .
The Chairman: The Chair is prepared to rule. The gentleman from
Massachusetts [Mr. Wigglesworth] makes a point of order against the
proviso beginning in line 24, page 23, of the pending bill, and
assigns as ground for the point of order that it is legislation on
an appropriation bill.
The Chair invites the gentleman's attention to section 13 of
title 25 of the United States Code, commonly known as the Snyder
Act, which provides for industrial assistance and advancement and
general administration of Indian property. Further, the same act
provides ``and for general and incidental expenses in connection
with the administration of Indian affairs.''
[[Page 5508]]
It is the opinion of the Chair that the provisions of existing
law, to which attention has been invited, contain legislative
authority for the appropriation appearing in the item to which the
gentleman makes a point of order.
Therefore the Chair is of the opinion that it is not
legislation on an appropriation bill and overrules the point of
order.
Indians--Extent of Authority Under Snyder Act
Sec. 15.26 Language providing an appropriation for the purpose of
encouraging industry and self-support among the Indians and
outlining areas of discretionary authority to be exercised by the
Secretary of the Interior was held to be authorized by the Snyder
Act although other language of the paragraph in question caused the
entire paragraph to be ruled out as legislation.
On May 14, 1937,(14) the Committee of the Whole was
considering H.R. 6958, an Interior Department appropriation bill. At
one point the Clerk read as follows, and proceedings ensued as
indicated below:
---------------------------------------------------------------------------
14. 81 Cong. Rec. 4598, 4599, 75th Cong. 1st Sess.
---------------------------------------------------------------------------
For the purpose of encouraging industry and self-support among
the Indians and to aid them in the culture of fruits, grains, and
other crops, $165,000, which sum may be used for the purchase of
seeds, animals, machinery, tools, implements, and other equipment
necessary, and for advances to Indians having irrigable allotments
to assist them in the development and cultivation thereof, in the
discretion of the Secretary of the Interior, to enable Indians to
become self-supporting: Provided, That the expenditures for the
purposes above set forth shall be under conditions to be prescribed
by the Secretary of the Interior for repayment to the United States
on or before June 30, 1943, except in the case of loans on
irrigable lands for permanent improvement of said lands, in which
the period for repayment may run for not exceeding 20 years, in the
discretion of the Secretary of the Interior: . . . Provided
further, That the Secretary of the Interior is hereby authorized,
in his discretion and under such rules and regulations as he may
prescribe, to make advances from this appropriation to old,
disabled, or indigent Indian allottees, for their support, to
remain a charge and lien against their lands until paid. . . . .
Mr. [John] Taber [of New York]: Mr. Chairman, I make a point of
order against the paragraph beginning on page 26, line 4. The point
of order is that this is legislation on an appropriation bill and
it imposes discretionary duties upon the Secretary of the Interior.
The language at the bottom of the bill, beginning with ``Provided
further'', line 22, and the last proviso are entirely the same.
They provide that the Secretary of the Interior shall make rules
and regulations and there is no question but what it imposes
additional duties upon the Secretary of the Interior all the way
through.
[[Page 5509]]
In lines 17 and 18 the terms of repayment are made subject to
the discretion of the Secretary of the Interior and in lines 9 and
10 it is subject to that same discretion. This is all on page 26.
The whole paragraph is subject to discretion and imposes duties
upon the Secretary.
Mr. [Jed] Johnson of Oklahoma: Mr. Chairman, the Committee
feels that this provision is in order. It provides only a method by
which the appropriation might be expended. I have no further
comment to make.
The Chairman: (15) The Chair would like to inquire
of the gentleman from Oklahoma as to the authority for the language
appearing in lines 1 and 2, page 27, which the Chair will quote:
---------------------------------------------------------------------------
15. Jere Cooper (Tenn.).
---------------------------------------------------------------------------
To remain a charge and lien against their land until paid--
Is there provision in some existing law creating a lien upon
these lands, to which this provision refers?
Mr. Johnson of Oklahoma: I cannot say there is provision in
existing law. The only existing law would be the fact this has been
in the bill for several years and, of course, that is not
controlling. . . .
The Chairman: The Chair is ready to rule.
The gentleman from New York makes a point of order against the
entire paragraph beginning in line 4, page 26, extending down to
and including line 9, page 27. The gentleman from New York [Mr.
Taber] in making his point of order invited attention to certain
language appearing in lines 10 and 11, page 26, with reference to
the discretion of the Secretary of the Interior.
The Chair has examined the act commonly referred to and known
as the Snyder Act and invites attention to section 13 of that act,
in which the following appears:
Expenditures of appropriations by Bureau of Indian Affairs:
The Bureau of Indian Affairs, under the supervision of the
Secretary of the Interior, shall direct, supervise, and expend
such moneys as Congress may from time to time appropriate for
the benefit, care, and assistance of the Indians throughout the
United States for the following purposes: General support and
civilization, including education; for industrial assistance
and advancement and general administration of Indian problems.
Further, for general and incidental expenses in connection with
the administration of Indian affairs.
It is the opinion of the Chair that the act to which attention
has been invited confers upon the Secretary of the Interior rather
broad discretionary authority. The Chair is of opinion that the
language to which the gentleman invited attention is not subject to
a point of order, but that the language to which the Chair invited
the attention of the gentleman from Oklahoma with reference to the
provisos does constitute legislation on an appropriation bill not
authorized by the rules of the House. It naturally follows that as
the point of order has to be sustained as to these two provisos, it
has to be sustained as to the entire paragraph. The Chair therefore
sustains the point of order made by the gentleman from New
York.(16)
---------------------------------------------------------------------------
16. This precedent, with reference to language ruled out as
legislation, is also discussed in Sec. Sec. 38.14
(reimbursements), 46.13 (imposition of lien against lands as
legislation), and 62.10 (provisions affecting executive
authority), infra.
---------------------------------------------------------------------------
[[Page 5510]]
Indian Agent Under Contract
Sec. 15.27 An appropriation in the Interior Department appropriation
bill for the payment of an Indian agent employed under a contract
approved by the Secretary was held to be authorized by the Snyder
Act and to be merely descriptive of contract authority contained in
existing law and therefore not legislative in character.
On May 14, 1937,(17) the Committee of the Whole was
considering H.R. 6958. A point of order against the following language
in the bill was overruled:
---------------------------------------------------------------------------
17. 81 Cong. Rec. 4605, 75th Cong. 1st Sess.
---------------------------------------------------------------------------
Utah: Uintah and Ouray, $7,100, of which amount not to exceed
$3,000 shall be available for the payment of an agent employed
under a contract, approved by the Secretary of the Interior.
Mr. [Richard B.] Wigglesworth [of Massachusetts]: Mr. Chairman,
I make the point of order on the paragraph beginning in line 11 and
ending in line 14 of page 57 that there is no authorization in law
for the appropriation recommended. . . .
The Chairman: (18) The Chair is prepared to rule.
---------------------------------------------------------------------------
18. Jere Cooper (Tenn.).
---------------------------------------------------------------------------
The gentleman from Massachusetts [Mr. Wigglesworth] makes a
point of order against the language appearing on page 57, lines 11
to 14, inclusive, on the ground it is legislation on an
appropriation bill and not authorized by existing law.
The Chair has examined the statement in the hearings to which
the gentleman from Massachusetts has invited attention, and
especially is impressed by the following statement contained in the
hearings:
The contract was approved on March 2, 1937, by the
Commissioner of Indian Affairs and the Secretary of the
Interior in accordance with sections 2103 and 2106 of the
Revised Statutes of the United States.
This would clearly indicate to the Chair that the law to which
reference is here made would be authority for the contract. It
appears that the contract was made and the discharge of the duty
entered upon under the provisions of the contract.
Attention is also invited again to the so-called Snyder Act
which, among other things, provides for the employment of
inspectors, supervisors, superintendents, clerks, field matrons,
farmers, physicians, Indian police, Indian judges, and other
employees. The language of the bill to which the point of order is
directed provides for the sum of $7,100, of which amount not to
exceed $3,000 shall be available for the payment of an agent
employed under a contract approved by the Secretary of the
Interior.
The Chair is of the opinion that this provision is clearly
within the scope of existing law to which attention has been
invited, and therefore is not legislation on an appropriation bill
in viola
[[Page 5511]]
tion of the rules of the House. The Chair overrules the point of
order.
Reclamation Law--Appropriations From ``General Funds'' Instead of
``Reclamation Fund''
Sec. 15.28 Language in a general appropriation bill appropriating funds
``out of the general funds of the Treasury'' (and not the
reclamation fund) for general investigations of proposed federal
reclamation projects was held unauthorized by law and to be
legislation on an appropriation bill and not in order.
On Mar. 2, 1938,(19) the Committee of the Whole was
considering H.R. 9621, Interior Department appropriations for 1939.
---------------------------------------------------------------------------
19. 83 Cong. Rec. 2710, 2711, 75th Cong. 3d Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
For general investigations, $200,000, to enable the
Secretary of the Interior, through the Bureau of Reclamation,
to carry on engineering and economic investigations of proposed
Federal reclamation projects, surveys for reconstruction,
rehabilitation, or extension of existing projects and studies
of water conservation and development plans, such
investigations, surveys, and studies to be carried on by said
Bureau either independently, or, if deemed advisable by the
Secretary of the Interior, in cooperation with State agencies,
and other Federal agencies, including the Corps of Engineers,
National Resources Committee, and the Federal Power Commission.
Mr. [John] Taber [of New York]: Mr. Chairman, I make the point
of order against the paragraph beginning on line 18, page 85,
ending with line 4, page 86, upon the ground that it is legislation
on an appropriation bill and is not authorized by law.
Mr. [James G.] Scrugham [of Nevada]: Mr. Chairman, this is
authorized in my opinion in the general terms of the Reclamation
Act. It has been in effect for many years.
Mr. Taber: Mr. Chairman, an appropriation in accordance with
the authorization under the Reclamation Act is provided on page 77,
line 8, down to and including line 3 on page 78. The appropriation
is $25,000. That is the authorized appropriation. I do not believe
there is any authority for this out of the general fund of the
Treasury.
The Chairman: (20) The Chair has examined sections
411 and 396, United States Code, title 43, and it seems to the
Chair that under the terms of these two sections which are rather
broad in their application, this appropriation may be authorized.
---------------------------------------------------------------------------
20. Marvin Jones (Tex.).
---------------------------------------------------------------------------
Mr. Taber: Is not that limited to the reclamation fund?
The Chairman: The Chair was looking particularly with reference
to that. The Chair will read the entire section 411:
The Secretary of the Interior is authorized and directed to
make examinations and surveys for, and to locate and construct,
as provided in
[[Page 5512]]
this chapter, irrigation works for the storage, diversion, and
development of waters, including artesian wells, and to report
to Congress at the beginning of each regular session as to the
results of such examinations and surveys, giving estimates of
cost of all contemplated works, the quantity and location of
the lands which can be irrigated therefrom, and all facts
relative to the practicability of each irrigation project; also
the cost of works in process of construction as well as of
those which have been completed.
Mr. Taber: I call the attention of the Chair to the language:
The Secretary of the Interior is authorized under the
provisions of this chapter--
That is where the authority of the Secretary of the Interior
and the reclamation fund are defined. That would imply that it is
to be done under the provisions of the reclamation fund. It would
seem to me that that is the authority under which they operated in
providing the appropriation that is to be found on page 77.
The Chairman: Does the gentleman from Nevada desire to comment
on this, or the gentleman from Oklahoma? On consideration it seems
to the Chair that this comes out of the general fund in the
Treasury and not the reclamation fund, and this is limited in the
way suggested by the gentleman from New York.
Mr. Scrugham: Section 411 seems to cover the matter.
The Chairman: If this were out of the reclamation fund, there
would be no question about it, but this appropriation is out of the
general fund in the Treasury. The Chair is of opinion that the
paragraph is subject to the point of order inasmuch as the
appropriation is made out of the general fund and not the
reclamation fund. The Chair sustains the point of order.
The ruling above was expressly followed on Apr. 27,
1945.(1) In the 1945 proceedings, Mr. Francis H. Case, of
South Dakota, contended that legislation passed subsequently to the
1938 ruling did authorize the language in question on the 1945 bill.
The Chair, however, decided that the provisions objected to on that
bill still went beyond the language of the authorizing law. The
proceedings on Apr. 27, 1945, relating to H.R. 3024, an Interior
Department appropriation, were as follows:
---------------------------------------------------------------------------
1. 91 Cong. Rec. 3908-10, 79th Cong. 1st Sess.
---------------------------------------------------------------------------
General investigations: For engineering and economic
investigations of proposed Federal reclamation projects and
surveys, investigations, and other activities relating to
reconstruction, rehabilitation, extensions, or financial
adjustments of existing projects, and studies of water conservation
and development plans, such investigations, surveys, and studies to
be carried on by said Bureau either independently, or in
cooperation with State agencies and other Federal agencies,
including the Corps of Engineers, and the Federal Power Commission,
$1,485,000: Provided, That the expenditure of any sums from this
appropriation for investigations of any nature requested by States,
municipalities, or other interests shall be upon the basis of the
[[Page 5513]]
State, municipality, or other interest advancing at least 50
percent of the estimated cost of such investigations.
Mr. [Robert F.] Jones [of Ohio]: Mr. Chairman, a point of order
The Chairman: (2) The gentleman will state it.
---------------------------------------------------------------------------
2. Jere Cooper (Tenn.).
---------------------------------------------------------------------------
Mr. Jones: Mr. Chairman, I make a point of order against all
the language in the paragraph starting with line 14 on page 57 and
continuing to the words and figures ``$1,485,000,'' for the reason
that it is legislation on an appropriation bill and for the further
reason that the amount ``$1,485,000'' is beyond the authorization
of the statute to wit, title 43, sections 411 and 411a-1 of the
United States Code. The sections of the statute to which I refer
are as follows:
The section is as follows:
411. Surveys for, location, and construction of irrigation
works generally--Reports to Congress:
The Secretary of the Interior is authorized and directed to
make examinations and surveys for, and to locate and construct
as provided in sections 372, 373 . . . and 498, of this title,
irrigation works for the storage, diversion, and development of
waters, including artesian wells, and to report to Congress at
the beginning of each regular session all results of such
examinations and surveys, giving estimates of cost of all
contemplated works; the quantity and location of lands which
can be irrigated therefrom, and all facts relative to the
practicability of each irrigation project; also the cost of
works in process of construction as well as those which have
been completed.
Section 411a-1 reads as follows:
The title provides:
Appropriations for investigations of the feasibility of
reclamation projects: The sum of $125,000 annually is hereby
authorized to be provided for cooperative and miscellaneous
investigations of the feasibility of reclamation projects.
Mr. Chairman, I have sought Webster's definition of the words
in the statutes, sections 411 and 411a-1 of title 43 of the United
States Code. The definitions of the various words are as follows:
Practicable: That may be practiced or performed; capable of
being put into practice, done, or accomplished; capable of
being used; readily practiced on; gullible; or pliant.
Practical: Fit for doing; of, pertaining to, or consisting
or manifested in, practice or action; opposed to theoretical,
ideal, or speculating; available, usable, or valuable in
practice or action; capable of being turned to use or account;
useful; skillful or experienced from practice; given or
disposed to action as opposed to speculation; capable of
applying knowledge to some useful end.
Practicability: A quality or state of being practicable;
feasibility or an instance of it.
Feasibility: Quality of being feasible; practicability;
also that which is feasible.
Feasible: Capable of being done, executed, or effected;
practicable; fit to be used or dealt with successfully;
suitable; likely; probable; reasonable.
Examination: Act of examining, or state of being examined;
a search or investigation; scrutiny by study or experiment; a
process prescribed or assigned for testing qualification.
Investigation: Act of investigating; process of inquiring
into or following up; research, especially patient or thorough
inquiry or examination.
Survey: Act of surveying; an examination, especially an
official exam
[[Page 5514]]
ination of all the parts or particulars of a thing to ascertain
its condition, quantity, or quality; the operation of finding
and delineating the contour, dimensions, positions, etc., as of
any part of the earth's surface; to inspect; to view
attentively, as from a high place; to view with a scrutinizing
eye; to examine; to examine as to conditions, situation, value,
etc., to examine and ascertain state of.
Following are Black's Law Dictionary definitions of such terms
as appear therein:
Survey: The process by which a parcel of land is measured
and its contents ascertained; also a statement of the result of
such survey, with the courses and distances and the quantity of
the land. . . . The land included in field notes. . . .
(Black's Dictionary, p. 1689.)
Investigation: To follow up step by step by patient inquiry
or observation; to trace or track mentally; to search into; to
examine and inquire into with care and accuracy; to find out by
careful inquisition; examination; the taking of evidence; a
legal inquiry. . . .
I find that the language against which I made a point of order
is not within the terms of the sections of the statute which I have
read. The words I referred to which are beyond the authorization of
the statutes are as follows:
Engineering, economic investigations, and other activities
relating to reconstruction, rehabilitation, and extension, or
financial adjustments of existing projects and studies.
Then down further there is a provision in the section that the
development plans, such investigations, surveys, and studies to be
carried on by said Bureau, ``either independently or in cooperation
with State agencies and other Federal agencies, including the Corps
of Engineers and the Federal Power Commission.'' These provisions
to which I have lastly referred are beyond the terms of the statute
and beyond the limitation in money as outlined in 411 and 411a-1 of
the United States Code.
So, summarizing, I make the point of order against this
language which I have indicated for the reason that it is
legislation on an appropriation bill; for the further reason that
words go in the bill beyond the amount allowed to be appropriated;
and for the further reason that it is in contradiction of existing
law as outlined in these two sections.
The Chairman: The gentleman from Ohio has made a point of order
against the language appearing in the pending bill beginning in
line 14 and extending to the colon in line 23 on the grounds stated
by him. The gentleman from Oklahoma, chairman of the subcommittee
in charge of the pending bill, has conceded the point of order.
The Chair invites attention to the fact that this same question
was presented when a point of order was made on March 2, 1938.
Without reviewing the decision made at that time, but citing it as
a precedent as guiding the Chair in the present instance, the Chair
feels that the decision then made is sound and is applicable to the
question here presented, and sustains the point of order. . . .
Mr. Case of South Dakota: Mr. Chairman, did I understand the
Chair to state that his decision was based on the precedent made in
March 1938?
The Chairman: One of the guiding features of the decision on
the pending
[[Page 5515]]
point of order is the decision appearing on page 2710 and 2711 of
volume 83, part 3, of the Congressional Record, Seventy-sixth
Congress, Third Session, March 2, 1938.
Mr. Case of South Dakota: My reason for asking the question is
that the basic Reclamation Act of August 4, 1939, was passed
subsequently to the basis on which that decision was made. In
addition to that, the Wheeler-Case Act, as amended in 1940, also
placed on the Secretary of the Interior an obligation to make
investigations of potential projects. And further, the Flood
Control Act of last year, finally passed in December 1944, in
several places specifically places on the Secretary of the Interior
a responsibility and authority for making such investigations, in
cooperation with the Secretary of War and with the States. The law
that relates to the revision and adjustment of obligations on
irrigation districts was a part of the act passed in 1939. The 5-
year limitation on that authority expired in 1944, but Congress
renewed it in a bill passed this year in the early days of this
Congress. All three of these acts specifically authorize the
activities on the part of the Bureau of Reclamation or the
Secretary of Interior, involved in this point of order, and all
these laws were passed subsequent to the precedent which the Chair
has cited.
The Chairman: The Chair did not deem it necessary or
appropriate to go into too great detail in deciding the question
here presented, but in the opinion of the Chair there is language
appearing in that part of the bill against which the point of order
was made, which is legislation on an appropriation bill and goes
further than the provisions of existing law. As previously stated,
the Chair sustains the point of order and the Clerk will read.
Reclamation Law--Submission of Report Constitutes Authorization
Sec. 15.29 An appropriation for the Arizona-Nevada Bullshead Project
was held to be authorized by section 9 of the Reclamation Act of
1939 which authorized expenditures to be made following submission
to Congress of a favorable report on the project's feasibility.
On May 14, 1941,(3) the Committee of the Whole was
considering H.R. 4590, an Interior Department appropriation At one
point the Clerk read as follows, and proceedings ensued as indicated
below:
---------------------------------------------------------------------------
3. 87 Cong. Rec. 4047, 77th Cong. 1st Sess.
---------------------------------------------------------------------------
Bullshead project, Arizona-Nevada, $5,000,000, for the purposes
and substantially in accordance with the report thereon heretofore
submitted under section 9 of the Reclamation Project Act of 1939,
and subject to the terms of the Colorado River compact.
Mr. [John] Taber [of New York]: Mr. Chairman, I make the point
of order that the item contained in this project is not authorized
by law. I make the point of order against the entire paragraph
which has just been
[[Page 5516]]
read, beginning in line 22, page 84, and ending in line 2, page 85.
Mr. [James G.] Scrugham [of Nevada]: Mr. Chairman, the project
is fully authorized. It is stated in the hearings, page 729, that
the project has been thoroughly investigated and was not authorized
at the time of the report, but it has now been authorized in
accordance with section 9 of the Reclamation Act of 1939. I call
attention to the Congressional Record of April 28, 1941, page 3367,
under the head of ``Executive communications,'' item 473, which
fully conforms to the requirements of law. The project is
authorized.
Mr. Taber: Mr. Chairman, I call the attention of the Chair to
the hearings at page 731, the last paragraph at the bottom of the
page:
Mr. Page: It has not had as yet the certification of the
Secretary and the approval of the President, as required by
law.
The Chairman: (4) What is the date of the page to
which the gentleman refers?
---------------------------------------------------------------------------
4. Jere Cooper (Tenn.).
---------------------------------------------------------------------------
Mr. Taber: The date is April 3, 1941. . . .
The Chairman: The Chair is prepared to rule. The gentleman from
New York makes the point of order against the paragraph appearing
in the pending bill beginning on line 22, page 84, and concluding
in line 2, page 85, on the ground that it is not authorized by law.
The Chair has examined section 9 of the Reclamation Act, approved
August 4, 1939, which appears to be adequate authority for the
Secretary of the Interior to recommend the project here in
question. That section reads in part as follows:
Sec. 9. (a) No expenditures for the construction of any new
project, new division of a project, or new supplemental works
on a project shall be made, nor shall estimates be submitted
therefor, by the Secretary until after he has made an
investigation thereof and has submitted to the President and to
the Congress his report and findings on--
(1) the engineering feasibility of the proposed
construction . . .
If the proposed construction is found by the Secretary to
have engineering feasibility and if the repayable and
returnable allocations to irrigation, power, and municipal
water supply or other miscellaneous purposes found by the
Secretary to be proper, together with any allocation to flood
control or navigation made under subsection (b) of this
section, equal the total estimated cost of construction as
determined by the Secretary, then the new project, new division
of a project, or supplemental works on a project, covered by
his findings, shall be deemed authorized and may be undertaken
by the Secretary. If all such allocations do not equal said
total estimated cost, then said new project, new division, or
new supplemental works may be undertaken by the Secretary only
after provision therefor has been made by act of Congress
enacted after the Secretary has submitted to the President and
the Congress the report and findings involved.
The Chair invites attention to the fact that on April 28, 1941,
the Secretary of the Interior transmitted to the Congress a
communication including the project here in question. The gentleman
from New York states that the statements made by the Commissioner
of the Bureau of Reclamation were made on April 3. Thereafter, the
[[Page 5517]]
Secretary of the Interior complied with the provisions of the act
by transmitting a communication on April 28, 1941, recommending
this project. Therefore, the Chair is constrained to overrule the
point of order and does overrule the point of order.
Sec. 15.30 The Reclamation Act was held to authorize appropriations for
irrigation projects which had been recommended by the Secretary of
the Interior and approved by the President of the United States.
On May 17, 1937,(5) the Committee of the Whole was
considering H.R. 6958, an Interior Department appropriation bill. A
point of order was raised against the following paragraph and was
overruled:
---------------------------------------------------------------------------
5. 81 Cong. Rec. 4680, 4681, 75th Cong. 1st Sess.
---------------------------------------------------------------------------
Provo River project, Utah, $750,000.
Mr. [John] Taber [of New York]: Mr. Chairman, I make the point
of order against this paragraph that the appropriation is not
authorized by law. No construction has been started and no law is
in force authorizing the project. I call the attention of the
Chairman to the latter part of page 245 of the record of the
hearings and to the following words:
Construction program through fiscal year 1937. The starting
of actual construction work has been delayed by the necessity
of organization and negotiating repayment and water-
subscription contracts.
It is expected that bids will be received for the
construction--
And so forth. This means there has been no actual construction
on this job and that it has not been authorized by specific
legislation. Therefore, I make the point of order against it that
it is legislation on an appropriation bill, and has not been
authorized by law.
The Chairman: (6) The Chair invites attention to the
provision of the United States Code in title 43, section 413, which
reads as follows:
---------------------------------------------------------------------------
6. Jere Cooper (Tenn.).
---------------------------------------------------------------------------
Approval of projects by President. No irrigation project
shall be begun unless and until the same shall have been
recommended by the Secretary of the Interior and approved by
direct order of the President of the United States.
This is the act of June 25, 1910, commonly referred to as the
Reclamation Act.
The Chair would like to inquire of the gentleman from Utah, or
someone else in position to give the information, whether or not
this item against which a point of order has been made has been
recommended by the Secretary of the Interior and approved by the
direct order of the President of the United States, and the Chair
would like to have some evidence on this point.
Mr. [James W.] Robinson of Utah: Mr. Chairman, I hold in my
hand, in answer to the statement of the Chair, a letter----
Mr. [James G.] Scrugham [of Nevada]: Mr. Chairman, I offer such
documentary evidence.
Mr. Robinson of Utah: I am submitting, Mr. Chairman, a letter
from Sec
[[Page 5518]]
retary Ickes, together with the approval of this project by the
President.
Mr. [Cassius C.] Dowell [of Iowa]: Mr. Chairman, if documentary
evidence is offered for the purpose of showing compliance with the
law, it seems to me it should be presented to the committee.
The Chairman: The Chair has in mind referring to the document
in passing upon the question here presented.
The Chair feels he has examined sufficient evidence to supply
the information requested. Does the gentleman from Utah desire to
be heard further?
Mr. Robinson of Utah: Does the Chair care to hear argument on
the other proposition of whether or not work has actually been
commenced on this project?
The Chairman: The Chair does not feel that particular point is
involved with respect to this particular item.
The Chair is prepared to rule.
There has been presented to the Chair a letter from the
Secretary of the Interior, under date of November 13, 1935, which
consists of three pages, and the Chair will only refer to the
pertinent part of the letter which applies to the particular item
under consideration. The letter is addressed to the President of
the United States by the Secretary of the Interior. Among other
things, it is stated in the letter:
I recommend that the Provo River project, consisting of the
Deer Creek division and the Utah Lake division, be approved and
that authority be issued to this Department to proceed with the
work and to make contracts and to take any necessary action for
the construction of said projects or either division thereof.
Sincerely yours,
Harold L. Ickes,
Secretary of the Interior.
There appears on this letter ``Approved November 16, 1935,
Franklin D. Roosevelt, President.''
Therefore the Chair is of the opinion that the evidence is
sufficient to meet the requirements in that this item in the
pending bill has been recommended by the Secretary of the Interior
and approved by the President of the United States, in accordance
with the provisions of existing law, as cited by the Chair,
appearing in section 413, title 43, of the United States Code. The
Chair therefore overrules the point of order.
Reclamation Law--Incidental Administrative Expenses Authorized
Sec. 15.31 An amendment to the Interior Department appropriation bill
proposing an appropriation for certain expenses incidental to the
main purpose of carrying out the reclamation law was held to be
authorized by that law.
On Mar. 1, 1938,(7) the Committee of the Whole was
considering H.R. 9621, an Interior Department appropriation During
consideration of the bill, a point of order against the following
amendment was overruled:
---------------------------------------------------------------------------
7. 83 Cong. Rec. 2655, 2656, 75th Cong. 3d Sess.
---------------------------------------------------------------------------
Amendment offered by Mr. [James G.] Scrugham [of Nevada]: Page
72, be
[[Page 5519]]
ginning with line 12, insert the following:
``Administrative provisions and limitations: For all
expenditures authorized by the act of June 17, 1902, and acts
amendatory thereof or supplementary thereto, known as the
reclamation law, and all other acts under which expenditures from
said fund are authorized, including not to exceed $100,000 for
personal services and $15,000 for other expenses in the office of
the chief engineer, $20,000 for telegraph, telephone, and other
communication service, $5,000 for photographing and making
photographic prints, $41,250 for personal services, and $7,500 for
other expenses in the field legal offices; examination of estimates
for appropriations in the field; refunds of overcollections and
deposits for other purposes; not to exceed $15,000 for
lithographing, engraving, printing, and binding; purchase of ice;
purchase of rubber boots for official use by employees; maintenance
and operation of horse-drawn and motor-propelled passenger
vehicles; not to exceed $20,000 for purchase and exchange of horse-
drawn and motor-propelled passenger-carrying vehicles; packing,
crating, and transportation (including drayage) of personal effects
of employees upon permanent change of station, under regulations to
be prescribed by the Secretary of the Interior; payment of damages
caused to the owners of lands or other private property of any kind
by reason of the operations of the United States, its officers or
employees, in the survey, construction, operation, or maintenance
of irrigation works, payment for official telephone service in the
field hereafter incurred in case of official telephones installed
in private houses when authorized under regulations established by
the Secretary of the Interior; not to exceed $1,000 for expenses,
except membership fees, of attendance, when authorized by the
Secretary, upon meetings of technical and professional societies
required in connection with official work of the Bureau; payment of
rewards, when specifically authorized by the Secretary of the
Interior, for information leading to the apprehension and
conviction of persons found guilty of the theft, damage, or
destruction of public property. . . .
Mr. [John] Taber [of New York]: Mr. Chairman, I make the point
of order against the amendment upon the ground that it is
legislation upon an appropriation bill, that it includes items not
authorized by law, as, for instance, $5,000 for making photographic
prints, not authorized by law in line 20 and in line 22, provision
for examination of estimates for appropriations in the field, which
is not authorized by law; $15,000 for lithographing and engraving,
not authorized by law; the purchase of ice, the purchase of rubber
boots for official use by employees, not authorized by law.
The Chairman: (8) The Chair is ready to rule. This
amendment provides for all expenditures authorized by the act of
June 17, 1902, and acts amendatory thereof or supplementary
thereto, known as the reclamation law, and all other acts under
which expenditures from said fund are authorized, and so forth. The
Chair thinks that the items to which the gentleman from New York
objects specifically are incidental to the main purpose of carrying
[[Page 5520]]
out the reclamation law. These incidental items it seems to the
Chair are necessary to carry out the major purposes of the
reclamation law, and the Chair, therefore, overrules the point of
order.
---------------------------------------------------------------------------
8. Marvin Jones (Tex.).
---------------------------------------------------------------------------
Granting New Authority to Cover Incidental Costs
Sec. 15.32 Language in an appropriation bill permitting the Secretary
of the Interior, when in his judgment it is necessary, to utilize
appropriations made for the Indian field service to purchase
certain equipment for the use of employees and to pay travel
expenses of employees on official business was held unauthorized by
law.
On Mar. 1, 1938,(9) during consideration in the
Committee of the Whole of the Interior Department appropriation bill
(H.R. 9621), a point of order was raised against the following
provision:
---------------------------------------------------------------------------
9. 83 Cong. Rec. 2653, 75th Cong. 3d Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
When, in the judgment of the Secretary of the Interior, it
is necessary for accomplishment of the purposes of
appropriations herein made for the Indian field service, such
appropriations shall be available for purchase of ice, for
rubber boots for use of employees, for travel expenses of
employees on official business, and for the cost of packing,
crating, drayage, and transportation of personal effects of
employees upon permanent change of station.
Mr. [John] Taber [of New York]: Mr. Chairman, I make a point of
order against the paragraph beginning with line 9, page 71, and
ending with line 16, page 71. It is legislation on an appropriation
bill; it requires additional duties on the part of the Secretary of
the Interior and is not authorized by law.
Mr. [Jed] Johnson of Oklahoma: Mr. Chairman, I do not care to
be heard.
The Chairman: (10) The Chair sustains the point of
order.
---------------------------------------------------------------------------
10. Marvin Jones (Tex.).
---------------------------------------------------------------------------
The Clerk will read.
Alaska Reindeer Industry
Sec. 15.33 A direction in law to an executive official to acquire, by
purchase or otherwise, ``necessary'' cold storage plants and other
equipment for purposes of developing the Alaskan Reindeer industry,
was held to permit an appropriation for that object to be
implemented in such manner as the official shall determine.
On Mar. 15, 1939,(11) the Committee of the Whole was
considering H.R. 4852, an Interior Department appropriation At one
[[Page 5521]]
point the Clerk read as follows, and proceedings ensued as indicated
below:
---------------------------------------------------------------------------
11. 84 Cong. Rec. 2789, 2790, 76th Cong. 1st Sess.
---------------------------------------------------------------------------
Amendment offered by Mr. [Jed] Johnson of Oklahoma: Page 60,
line 23, insert a new paragraph, as follows:
``Reindeer industry, Alaska: For the purchase, in such manner
as the Secretary of the Interior shall deem advisable, of reindeer,
abattoirs, cold-storage plants, corrals and other buildings, and
communication and other equipment, owned by nonnatives in Alaska,
as authorized by the act of September 1, 1937 (50 Stat. 900),
$820,000; and for necessary administrative expenses in connection
with such purchase and the establishment and development of the
reindeer industry for the benefit of the Eskimos and other natives
of Alaska, as authorized by said act, including personal services
in the District of Columbia (not to exceed $2,300) and elsewhere,
traveling expenses, erection, repair, and maintenance of corrals,
fences, and other facilities, $250,000; in all $1,070,000, to be
immediately available: Provided, That under this appropriation not
exceeding an average of $4 per head shall be paid for reindeer
purchased from nonnative owners: Provided further, That the
foregoing limitation shall not apply to the purchase of reindeer
located on Nunivak Island.''
Mr. [John C.] Schafer of Wisconsin: Mr. Chairman, I make the
point of order against the amendment on the ground that it is
legislation on an appropriation bill, unauthorized by law, and it
delegates to the Department additional authority which it does not
now have. . . .
Mr. [Albert E.] Carter [of California]: Mr. Chairman, I would
like to be heard on the point of order.
The Chairman: (12) The gentleman from California is
recognized.
---------------------------------------------------------------------------
12. Frank H. Buck (Calif.).
---------------------------------------------------------------------------
Mr. Carter: The opening sentence of the amendment reads:
For the purchase in such manner as the Secretary of the
Interior shall deem advisable.
Now, certainly there is nothing in the statute that gives the
Secretary of the Interior that much discretion. In addition to
that, Mr. Chairman, I desire to call the attention of the Chair to
the proviso in the amendment which reads as the proviso in the
bill, which is clearly legislation. Therefore I say the point of
order must be sustained against the proposed amendment.
The Chairman: The Chair is ready to rule. The act of September
1, 1937, on which the appropriation contained in this paragraph is
based, reads in part as follows:
Sec. 2. The Secretary of the Interior is hereby authorized
and directed to acquire, in the name of the United States, by
purchase or other lawful means, including exercises of power of
eminent domain, for and on behalf of the Eskimos and other
natives of Alaska, reindeer, reindeer range, equipment,
abattoirs, cold-storage plants, warehouses and other property,
real or personal, the acquisition of which he determines to be
necessary to the effectuation of the purposes of this act.
This seems to be a broad, all-inclusive grant of power. The
language used in the amendment offered by the gentleman from
Oklahoma merely restates, in slightly different words, the
authorization contained in the act of September 1, 1937.
The proviso to which the gentleman from California [Mr. Carter]
refers ap
[[Page 5522]]
pears to the Chair to be nothing more than a limitation, in the
strictest sense of the word.
For these reasons the Chair overrules both points of order.
Bituminous Coal Commission
Sec. 15.34 Language permitting an appropriation to be used for public
instruction and information deemed necessary by the Bituminous Coal
Commission, in the course of conducting research on coal, was held
authorized by a law conferring broad discretionary authority on the
Commission to undertake acts deemed ``necessary'' for coal
promotion.
On Feb. 28, 1938,(13) the Committee of the Whole was
considering H.R. 9621, an Interior Department appropriation. A point of
order was raised against the following paragraph in the bill:
---------------------------------------------------------------------------
13. 83 Cong. Rec. 2553, 75th Cong. 3d Sess.
---------------------------------------------------------------------------
National Bituminous Coal Commission
Salaries and expenses: For all necessary expenditures of the
National Bituminous Coal Commission in performing the duties
imposed upon said Commission by the Bituminous Coal Act of 1937,
approved April 26, 1937 (50 Stat. 72), including personal services
and rent in the District of Columbia and elsewhere . . .
miscellaneous items, including those for public instruction and
information deemed necessary by the Commission; and not to exceed
$8,500 for purchase and exchange of newspapers, law books,
reference books, and periodicals, $2,700,000.
Mr. [John] Taber [of New York]: Mr. Chairman, I make a point of
order against the language beginning with the word ``including'' in
line 11 on page 11, and running down through the word
``Commission'', in line 13, that it is not authorized by law, is
legislation on an appropriation bill, and requires additional
duties of the Commission. . . .
The Chairman: (14) The Chair is ready to rule.
---------------------------------------------------------------------------
14. Marvin Jones (Tex.).
---------------------------------------------------------------------------
The Chair will call attention to the fact that volume 50,
Statutes at Large, page 74, section 2, of the Bituminous Coal
Commission Act, the last paragraph, contains this provision:
The Commission is hereby authorized to initiate, promote,
and conduct research designed to improve standards and methods
used in the mining, preparation, conservation, distribution,
and utilization of coal and the discovery of additional uses
for coal, and for such purposes shall have authority to assist
educational, governmental, and other research institutions in
conducting research in coal, and to do such other acts and
things as it deems necessary and proper to promote the use of
coal and its derivatives.
It seems to the Chair that clearly the appropriation to which
the point of order is directed is authorized by the provisions of
the paragraph just read.
[[Page 5523]]
Mr. Taber: Mr. Chairman, may I be heard further on the point of
order?
The Chairman: The Chair will be pleased to hear the gentleman
further.
Mr. Taber: It seems to me the language in this bill is much
broader than the language in the enabling act, in that this item
may permit action way beyond the range of the enabling act. With
reference to particular activities like research with respect to
coal, which the Commission may conduct, the Commission undoubtedly
has that power; but the language in the provision against which I
have made the point of order is not limited to the scope of the
act. Under it the Commission may go into any conceivable subject.
Therefore, it seems to me this particular language is way beyond
the scope of the authorization act. If this language were limited
to the scope of the authorization act, of course, it would be in
order.
The Chairman: The Chair is unable to see how broader terms
could be used than are used in the enabling act, which reads:
To assist educational, governmental, and other research
institutions in conducting research in coal, and to do such
other acts and things as it deems necessary and proper to
promote the use of coal and its derivatives.
This provision covers not only educational, governmental, and
other research institutions, but such other acts as the Commission
may deem necessary.
It seems to the Chair the language of the act is fully as broad
as the terms embodied in the pending bill, and, therefore, the
Chair overrules the point of order.
CHAPTER 26
Unauthorized Appropriations; Legislation on Appropriation Bills
B. APPROPRIATIONS FOR UNAUTHORIZED PURPOSES
Sec. 16. Federal Employment
Overseas Allowances
Sec. 16.1 Language in a general appropriation bill providing funds and
authority for an overseas allowance for employees of the Foreign
Claims Settlement Commission, ``similar to the allowance
established by law for Foreign Service personnel,'' was conceded to
be unauthorized and not in order in a general appropriation bill.
On Aug. 26, 1960,(15) during consideration in the
Committee of the Whole of a supplemental appropriation bill (H.R 12740)
the following point of order was raised:
---------------------------------------------------------------------------
15. 106 Cong. Rec. 17899, 86th Cong. 2d Sess.
---------------------------------------------------------------------------
Mr. [H. R.] Gross [of Iowa]: Mr. Chairman, I make a point of
order against the language in the bill on page 7, beginning on line
11, running through line 4 on page 8, as being legislation on an
appropriation bill. The language referred to is as follows:
Foreign Claims Settlement Commission
Salaries and expenses
For an additional amount for ``Salaries and expenses,''
including allowances and benefits similar to those provided by
title nine of the Foreign Service Act of 1946, as amended, as
[[Page 5524]]
determined by the Commission; expenses of packing, shipping,
and storing personal effects of personnel assigned abroad;
rental or lease, for such periods as may be necessary, of
office space and living quarters for personnel assigned abroad;
maintenance, improvement, and repair of properties rented or
leased abroad, and furnishing fuel, water, and utilities for
such properties; hire of passenger motor vehicles abroad;
insurance on official motor vehicles abroad; and advances of
funds abroad; $145,000: Provided, That the limitation under
this head in the General Government Matters Appropriation Act,
1961, on the amount available for expenses of travel, is
increased from ``$10,000'' to ``$20,000''.
The Chairman: (16) Does the gentleman from Texas
desire to be heard on the point of order?
---------------------------------------------------------------------------
16. Herbert C. Bonner (N.C.).
---------------------------------------------------------------------------
Mr. [Albert] Thomas [of Texas]: Mr. Chairman, the gentleman
from Iowa is right. This is the first time that these people have
operated overseas and they asked for a little overseas allowance
The Bureau of the Budget recommended it. We did not feel that we
wanted to be the least bit oppressive on it. Mr. Chairman, the
point of order is conceded.
The Chairman: The point of order made by the gentleman from
Iowa is sustained.
Representation Allowances
Sec. 16.2 Language in a general appropriation bill providing funds for
the National Aeronautics and Space Administration for
``representation allowances overseas and official entertainment
expenses, to be expended upon the approval or authority of the
Administrator,'' was held to be legislation and not in order.
On June 29, 1959,(17) during consideration in the
Committee of the Whole of a supplemental appropriation bill (H.R 7978),
a point of order was raised against the following provision:
---------------------------------------------------------------------------
17. 105 Cong. Rec. 12125, 12126, 86th Cong. 1st Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
For contractual research, development, operations,
technical services, repairs, alterations, and minor
construction, and for supplies, materials, and equipment
necessary for the conduct and support of aeronautical and space
research and development activities of the National Aeronautics
and Space Administration, including not to exceed $5,000 for
representation allowances overseas and official entertainment
expenses, to be expended upon the approval or authority of the
Administrator. . . .
Mr. [H. R.] Gross [of Iowa]: Mr. Chairman, I make the point of
order against the language on page 4, beginning with the word
``including'' in line 10 and running through the word
``Administrator'' in line 13, on the ground that it is legislation
on an appropriation bill. . . .
The Chairman: (18) The Chair recognizes the
gentleman from Texas (Mr. Thomas) on the point of order.
---------------------------------------------------------------------------
18. Paul J. Kilday (Tex.).
---------------------------------------------------------------------------
Mr. [Albert] Thomas: I cannot recall that there was any
legislation au
[[Page 5525]]
thorizing this entertainment fund for the Administrator. We reduced
it drastically as it was sent up by the Bureau of the Budget.
Perhaps it would serve a useful purpose. I think the gentleman's
point of order is good and I concede it.
The Chairman: The gentleman from Texas concedes the point of
order. The Chair sustains the point of order.
Sec. 16.3 A section of a general appropriation bill authorizing the
Secretaries of Labor and Health, Education, and Welfare to use
funds in the bill for official reception and representation
expenses was conceded to be unauthorized and was ruled out in
violation of Rule XXI clause 2.
On June 27, 1974,(19) during consideration in the
Committee of the Whole of H.R. 15580 (Departments of Labor and Health,
Education, and Welfare appropriations), a point of order was sustained
against the following provision:
---------------------------------------------------------------------------
19. 120 Cong. Rec. 21686, 21687, 93d Cong. 2d Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
Sec. 404. The Secretary of Labor and the Secretary of
Health, Education, and Welfare are each authorized to make
available not to exceed $7,500 from funds available for
salaries and expenses under titles I and II, respectively, for
official reception and representation expenses.
Mr. [H. R.] Gross [of Iowa]: Mr. Chairman, I make a point of
order against the language to be found on page 37, beginning with
line 21 and running through line 25 as being appropriation not
authorized by law. . . .
Mr. [Daniel J.] Flood [of Pennsylvania]: It is the entire
section 404?
Mr. Chairman, we concede the point of order.
The Chairman: (20) The point of order is conceded
and sustained.
---------------------------------------------------------------------------
20. James C. Wright, Jr. (Tex.).
---------------------------------------------------------------------------
Funds for Presidential Commission
Sec. 16.4 A lump-sum amount for the Civil Service Commission contained
in a general appropriation bill was conceded to be in violation of
Rule XXI clause 2 where it was shown that a portion of that amount
was intended to fund the President's Commission on Personnel
Interchange--a Commission established solely by Executive order and
not created by law.
On June 25, 1974,(1) during consideration in the
Committee of the Whole of the Department of Treasury, Postal Service,
and Executive Office appropriation bill, a
[[Page 5526]]
point of order was sustained as indicated below:
---------------------------------------------------------------------------
1. 120 Cong. Rec. 21036, 21037, 93d Cong. 2d Sess.
---------------------------------------------------------------------------
The Chairman: (2) The Clerk will read.
---------------------------------------------------------------------------
2. B. F. Sisk (Calif.).
---------------------------------------------------------------------------
The Clerk read as follows:
For necessary expenses, including services as authorized by
5 U.S.C. 3109 . . . not to exceed $2,500 for official reception
and representation expenses; and advances or reimbursements to
applicable funds of the Commission and the Federal Bureau of
Investigation for expenses incurred under Executive Order 10422
of January 9, 1953, as amended; $90,000,000 together with not
to exceed $18,698,000 for current fiscal year administrative
expenses for the retirement and insurance programs to be
transferred from the appropriate trust funds of the Commission
in amounts determined by the Commission without regard to other
statutes: Provided, That the provisions of this appropriation
shall not affect the authority to use applicable trust funds
for administrative expenses of effecting statutory annuity
adjustments. . . .
Mr. [Charles A.] Vanik [of Ohio]: Mr. Chairman, I make a point
of order on the language beginning at line 12 on page 12 of this
bill with the figures ``$90,000,000'' through line 20 ending in the
word ``adjustments.''. . .
Mr. Chairman, it is my understanding that there is in fact no
authorization for the President's Commission on Personnel
Interchange for which $353,000 is herein requested. It was created
solely by Executive Order 11451 on January 19, 1969.
This House rule is supported in this regard by title 36 of the
United States Code, section 673, which also indicates that no funds
should be expended by this body without authorization. The full
section of the law reads as follows:
Title 36, Section 673
No part of the public monies, or of any appropriation made
by Congress, shall be used for the payment of compensation or
expenses of any commission, council or other similar body, or
any members thereof, or for expenses in connection with any
work or the results of any work or action of commission,
council, board, or similar body, unless the creation of the
same shall be or shall have been authorized by law; nor shall
there be employed any detail hereafter or heretofore made or
otherwise personal services from any Executive Department or
other Government establishment in connection with any such
commission, council, board, or similar body. . . .
The Chairman: Does the gentleman from Oklahoma desire to be
heard on the point of order?
Mr. [Tom] Steed [of Oklahoma]: Mr. Chairman, we concede the
point of order.
The Chairman: The gentleman from Oklahoma (Mr. Steed) concedes
the point of order.
The point of order is sustained.
CHAPTER 26
Unauthorized Appropriations; Legislation on Appropriation Bills
B. APPROPRIATIONS FOR UNAUTHORIZED PURPOSES
Sec. 17. Foreign Relations
Fishermen's Protective Act
Sec. 17.1 The Fishermen's Protective Act of 1957 was held sufficient
authorization for an appropriation to compensate certain vessel
owners whose vessels were seized by Ecuador.
[[Page 5527]]
On June 28, 1971,(3) the Committee of the Whole was
considering H.R. 9271, an appropriation bill for the Department of the
Treasury, the Postal Service, the Executive Office, and independent
agencies. The following proceedings took place:
---------------------------------------------------------------------------
3. 117 Cong. Rec. 22439-42, 92d Cong. 1st Sess.
---------------------------------------------------------------------------
Amendment offered by Mr. Dingell: On page 32, after line 19,
insert:
``Title V--Claims Under Fishermen's Protective Act of 1967
``Sec. 501. For payment of claims settled and determined in
accord with the Fishermen's Protective Act of 1967 (22 U.S.C. 1971
and fol.) for amounts paid to the Government of Ecuador and
certified to the Secretary of the Treasury by the Secretary of
State in respect of the Ocean Queen (certified April 23, 1971), the
Day Island (certified May 10, 1971), the Apollo (certified May 4,
1971), the John F. Kennedy (certified May 4, 1971), the Quo Vadis
(certified May 12, 1971), and the Sun Europa (certified May 3,
1971), $387,190.''. . .
Mr. [Frank T.] Bow [of Ohio]: Mr. Chairman, I reserve a point
of order against the amendment. . . .
The Chairman: (4) Does the gentleman from Ohio wish
to be heard on his point of order?
---------------------------------------------------------------------------
4. John S. Monagan (Conn.).
---------------------------------------------------------------------------
Mr. Bow: I do, Mr. Chairman, and I shall be very brief.
Mr. Chairman, there is no question but that the law does
provide for the payment to these fishermen who have had their ships
seized in Ecuador.
But I call the attention of the Chair to what the gentleman
from Michigan has said, which is quite correct, that the law has
been amended--that is, the original law of 1926 has been amended--
the law of 1927--to provide where there is a seizure of this kind
that the payment shall be made from the withholding of foreign aid
funds from the recipient country. The law so provides, and this has
not been done. So the amendment of the law would provide the method
of payment in those countries which receive foreign aid and Ecuador
is one of them. So it would seem to me that at this time there is
no authority for an appropriation, because the law provides that it
shall be paid out of foreign aid funds and not by an appropriation
here.
I point this out simply to call attention to what the
distinguished gentleman from Michigan has stated, and I think he
will agree that this is what the law is. . . .
The Chairman: Does the gentleman from Michigan (Mr. Dingell)
desire to be heard further on the point of order?
Mr. [John D.] Dingell: Yes, Mr. Chairman. Mr. Chairman, I
happen to have before me the two statutes which are relevant here
and I will cite them to the Chair at this particular time.
The first is that the act of August 27, 1954, 68 Stat. 883-22
U.S. 3 71-76--the relevant part of that statute reads as follows--
and this is section 2:
In any case where--
(a) a vessel of the United States is seized by a foreign
country on the basis of rights or claims in territorial waters
or the high seas which are not recognized by the United States;
and
(b) there is no dispute of material facts with respect to
the location or
[[Page 5528]]
activity of such vessel at the time of such seizure, the
Secretary of State shall as soon as practicable take such
action as he deems appropriate to attend to the welfare of such
vessel and its crew while it is held by such country and to
secure the release of such vessel and crew. . . .
[Subsequent language provides] that once the Secretary of State
has certified the amounts paid to the Secretary of the Treasury . .
. the Secretary of the Treasury shall procure an appropriation from
the Congress and shall pay from appropriated funds the fine and
other charges necessary.
Then subsequently, Mr. Chairman, in the statute of the 90th
Congress, Public Law 90-482, dated August 12, 1968--and this
appears at 75 Stat. 424, 22 U.S.C. 2151--we amended the statute
then to add to the word ``fine,'' which the United States is
supposed to compensate these fishermen for; in addition to that,
license fee, registration fee, or any other direct charge, and the
committee in this report interpreted this as being anything that is
necessary to release the vessel from the holding of the foreign
government--in each of these cases, I believe, the Government of
Ecuador. I would be happy to read the statute further if the
gentleman desires.
Mr. Bow: Mr. Chairman, will the gentleman yield to permit me to
read that part which says that the fine and charges shall be paid
out of the foreign aid funds?
Mr. Dingell: There is such a statute, but I would tell my good
friend from Ohio the statute to which he is now addressing himself is
another statute which says that the Secretary of State shall withhold
and shall compensate the United States for the amounts paid out. We
were very careful, I want my good friend from Ohio to know, in drafting
the statute not to set it up so that the Secretary of State would have
to withhold the fine from foreign aid funds so as to leave our
fishermen naked and destitute. I do not believe the committee felt that
we should trust the Secretary, making the commercial fishermen subject
to that kind of whim or mercy. . . .
The Chairman: The Chair is ready to rule.
Under section 1973 of the United States Code, title 22, there
is an authorization, as the gentleman from Michigan has said, which
does permit the payment of charges and authorizes these payments.
In spite of the fact that there is a reference in section 1975
to action by the Secretary of State, nevertheless the Chair does
not find that the condition as contended for by the gentleman from
Ohio is contained in this section. The Chair believes the law cited
by the gentleman from Michigan would authorize the appropriation
carried in the amendment. The Chair finds the point of order is not
well taken and overrules the point of order.
International Organizations and Conferences
Sec. 17.2 An appropriation for ``International Conferences and
Contingencies'' which included a provision earmarking a certain
amount for a contribution to the International Secretariat on
Middle Level Manpower was
[[Page 5529]]
held to be authorized by a law allowing the Secretary of State to
generally participate in international activities in conducting
foreign affairs.
On Apr. 10, 1963,(5) the Committee of the Whole was
considering H.R. 5517, a supplemental appropriation bill containing the
following paragraph:
---------------------------------------------------------------------------
5. 109 Cong. Rec. 6157, 6158, 88th Cong. 1st Sess.
For an additional amount for ``International conferences and
contingencies,'' $315,000, of which $250,000 shall be available for
expenses of organizing and holding the World Food Congress in the
United States, as authorized by the act of October 18, 1962 (Public Law
87-841), and $65,000 shall be available for the U.S. contribution to
the International Secretariat on Middle Level Manpower.
Mr. [Glenard P.] Lipscomb [of California]: Mr. Chairman, I make
a point of order against the language in the bill on page 23, lines
8 through 15, under the heading ``International Conferences and
Contingencies'' on the ground that it is not authorized by law. The
authorizations for appropriations for international conferences and
contingencies under section 5 of Public Law 84-885 conveys
authority for a general appropriation and not authority for a
specific appropriation such as proposed under this section which
provides that of the $315,000 for ``International conferences and
contingencies,'' $65,000 shall be available for the U.S.
contributions to the International Secretariat on Middle Level
Manpower.
The Chairman: (6) Does the gentleman from New York
desire to be heard on the point of order?
---------------------------------------------------------------------------
6. Richard Bolling (Mo.).
---------------------------------------------------------------------------
Mr. [John J.] Rooney [of New York]: I do, Mr. Chairman.
Mr. Chairman, I respectfully submit that this appropriation is
authorized by law. It is authorized by Public Law 885, 84th
Congress, in section 5 of which we find the following:
The Secretary of State is authorized to (a) provide for
participation by the United States in international activities
which arise from time to time in the conduct of foreign affairs
for which provision has not been made by the terms of any
treaty, convention or special act of Congress. . . .
The Chairman: The Chair is prepared to rule.
The language cited by the gentleman from New York is, indeed,
very broad. The Chair believes that the point of order is not well
taken.
The point of order is overruled.
Authority to Join International Organization Implies Authority for
Expenses
Sec. 17.3 An act authorizing the President to accept membership in an
international organization was held to be sufficient authorization
to support an appropriation for the obligation assumed by the
United States in accepting such membership.
[[Page 5530]]
On Feb. 7, 1935,(7) the following proceedings took
place:
---------------------------------------------------------------------------
7. 79 Cong. Rec. 1616, 1677-80, 74th Cong. 1st Sess.
---------------------------------------------------------------------------
Mr. [George H.] Tinkham [of Massachusetts]: Mr. Chairman, in
relation to the appropriation of $174,630 for the International
Labor Organization, I make the point of order that there is no
legislative authority to support this appropriation and, Mr.
Chairman, I make the further point of order that the appropriation
in any event is limited to the terms of the instrument which sets
up the International Labor Organization, namely title XIII of the
Versailles Treaty. . . .
The Chairman: (8) The point of order raised by the
gentleman from Massachusetts (Mr. Tinkham) involves the question as
to the authorization of an appropriation under title I of the bill
(H.R. 5255) granting to the International Labor Organization the
sum of $174,630.
---------------------------------------------------------------------------
8. William N. Rogers (N.H.).
---------------------------------------------------------------------------
In order that we may not be confused, the Chair feels it proper
to state that the reference to the Versailles Treaty in regard to
the legality of this appropriation, and the point of order raised
thereon, is absolutely irrelevant. The Versailles Treaty is no part
of the law of the United States of America, is not mentioned in the
paragraph providing this appropriation, and is not referred to in
the joint resolution passed in the Seventy-third Congress and
approved June 19, 1934. The law under which this appropriation is
proposed results from the joint resolution approved June 19, 1934,
which provided that the President of the United States was
authorized to accept membership for the Government of the United
States of America in the International Labor Organization which,
through its general conference of representatives and its members
and through its International Labor Office, collects information
concerning labor throughout the world, and prepares international
conventions for the consideration of member governments, with a
view of improving conditions of labor. The Versailles Treaty and
other matters of that kind are not referred to in that joint
resolution.
The question, it seems to the Chair, resolves itself into
whether or not a reasonable interpretation of the law passed during
the Seventy-third Congress includes therein an authorization of the
Congress of the United States, which enacted that legislation, to
make reasonable appropriations to carry it into effect. Bearing on
the generally recognized standard of interpretation of legislation
of this kind, the Chair thinks that it is proper to refer to the
language of the distinguished gentleman from Massachusetts [Mr.
Tinkham] when this bill was under debate in this House on June 16,
1934, when he said:
Let me ask the chairman of the committee, on which I have
the honor to serve, has there been an estimate of the cost to
the American people of our annual contribution to this
organization; if so, how much?
The gentleman from Tennessee [Mr. McReynolds] said:
That will depend on a number of circumstances.
Then the gentleman from Massachusetts made this remark:
Mr. Speaker, I may say that it is estimated that we shall
contribute to
[[Page 5531]]
the support of this organization from $150,000 to $400,000 a
year.
At that time it seems to have been contemplated that a
reasonable appropriation to be made by Congress was involved in the
passage of that legislation. In view of that interpretation it
seems to the Chair that the joint resolution approved June 19,
1934, is sufficient authorization for this appropriation, and the
Chair is of the opinion that the point of order should be overruled
The Chair therefore overrules the point of order should be over-
ruled.
The Chair therefore overrules the point of order.
Foreign Currency Program--Preservation of Nubian Monuments
Sec. 17.4 An appropriation added by the Senate to a general
appropriation bill and included in a conference report, for the
purchase of Egyptian pounds accruing under the Agricultural Trade
Development and Assistance Act of 1954, to be used for the
preservation of ancient Nubian monuments on the Nile was held to be
authorized by a provision of the act allowing foreign currencies to
be used ``to promote and support programs of . . . cultural and
educational development'' and further specifying that ``foreign
currencies shall be available for purposes of this subsection . . .
only in such amounts as may be specified from time to time in
appropriation acts.''
On the legislative day of Sept. 25, 1961,(9) the House
was considering a conference report on H.R. 9169, a supplemental
appropriation. The following proceedings took place:
---------------------------------------------------------------------------
9. 107 Cong. Rec. 21521, 21522, 87th Cong. 1st Sess., Sept. 27, 1961
(Calendar Day)
---------------------------------------------------------------------------
Mr. [Albert] Thomas (of Texas): Mr. Speaker, I call up the
conference report on the bill (H.R. 9169) and ask unanimous consent
that the statement of the managers on the part of the House be read
in lieu of the report.
The Clerk read the title of the bill.
The Speaker Pro Tempore:(10) Is there objection to
the request of the gentleman from Texas?
---------------------------------------------------------------------------
10. John W. McCormack (Mass.).
---------------------------------------------------------------------------
Mr. [John] Taber [of New York]: Mr. Speaker, I object
The Clerk read the conference report.
Mr. Taber: Mr. Speaker, I make a point of order against the
conference report, and I refer especially to the paragraph on page
30, under the title of ``Preservation of Ancient Nubian Monuments--
Special Foreign Currency Program''. . .
The Speaker Pro Tempore: The Chair is prepared to rule.
The gentleman from New York makes a point of order against the
conference report in connection with the
[[Page 5532]]
amendment on page 30, which reads as follows:
For the purchase of Egyptian pounds which accrue under
title I of the Agricultural Trade Development and Assistance
Act of 1954, as amended, for the purposes authorized by section
104(k) of that Act, $4 million to remain available until
expended
The Chair has carefully studied the provisions of section
104(k), the organic law, which include among other things:
To promote and support programs of medical and scientific
research, cultural and educational development, health,
nutrition, and sanitation: Provided, That foreign currencies
shall be available for the purpose of this subsection (in
addition to funds otherwise made available for such purposes)
only in such amounts as may be specified from time to time in
appropriation acts. . .
Continuing what the Chair has said, it is the opinion of the
Chair that section 104(k) justifies the language contained in the
conference report, and the Chair overrules the point of order.
Foreign Currencies for Children's Hospital in Poland
Sec. 17.5 In a bill appropriating funds for the mutual security
program, a provision earmarking a part of the funds of the
``special assistance'' appropriation for the purchase of foreign
currencies to be used for the construction of a children's hospital
in Poland was held to be authorized by a provision in the 1954
Mutual Security Act.
On June 17, 1960,(11) the Committee of the Whole was
considering H.R. 12619, a bill making appropriations for mutual
security and related agencies. At one point the Clerk read as follows,
and proceedings ensued as indicated below:
---------------------------------------------------------------------------
11. 106 Cong. Rec. 13132, 13133, 86th Cong. 2d Sess.
---------------------------------------------------------------------------
Special assistance, general authorization: For assistance
authorized by section 400(a), $206,000,000, of which not to exceed
$1,500,000 may be used to purchase foreign currencies or credits
owed to or owned by the Treasury of the United States for
assistance authorized by section 400(c) for construction of the
American Research Hospital for Children in Poland at the University
of Krakow. . .
Mr. [H.R.] Gross [of Iowa]: Mr. Chairman, I make the point of
order against the language beginning on page 3, line 7, and ending
on line 12 which reads as follows: ``of which not to exceed
$1,500,000 may be used to purchase foreign currencies or credits
owed to or owned by the Treasury of the United States for
assistance authorized by section 400(c) for construction of the
American Research Hospital for Children in Poland at the University
of Krakow:''
Mr. Chairman, this language is legislation on an appropriation
bill. The authorizing act, the Mutual Security Act of 1959,
provides for the utilization
[[Page 5533]]
of ``foreign currencies for hospitals abroad designed to serve as
centers for medical treatment, education and research founded or
sponsored by citizens of the United States''. . .
Mr. [J. Vaughan] Gary [of Virginia]: Mr. Chairman, may I read
the provision of law authorizing it? It is section 400(c) of the
Mutual Security Act of 1954 as amended. It provides:
The President is authorized to use not to exceed $20
million of the funds appropriated pursuant to subsection (a) of
this section for assistance on such terms and conditions as he
may specify to schools and libraries abroad founded or
sponsored by citizens of the United States and serving as study
and demonstration centers for ideas and practices of the United
States notwithstanding any other act authorizing assistance of
this kind
And further:
In addition to the authority contained in this subsection
it is the sense of Congress that the President should make a
special and a particular effort to utilize foreign currencies
accruing under title I of the Agricultural Trade, Development
and Assistance Act of 1954 as amended and notwithstanding the
provisions of Public Law 213, 82d Congress, the President is
authorized to utilize foreign currencies accruing to the United
States under this or any other act for the purposes of this
subsection and for hospitals abroad designed to serve as
centers for medical treatment, education, and research, founded
or sponsored by citizens of the United States.
The Chairman: (12) the Chair is of the opinion that the
language of section 400(c) as read by the gentleman from Virginia
[Mr. Gary] is sufficient to establish the point that this language
is authorized by law; and therefore the Chair overrules the point
of order made by the gentleman from Iowa [Mr. Gross].
---------------------------------------------------------------------------
12. Wilbur D. Mills (Ark.).
---------------------------------------------------------------------------
Presidential Authority to Provide for Participation in International
Exhibition
Sec. 17.6 An amendment providing funds for a health exhibit at the
Universal and International Exhibition of Brussels was held to be
authorized by law.
On Feb. 26, 1958,(13) during consideration in the
Committee of the Whole of H.R. 10881, a supplemental appropriation
bill, a point of order against an amendment was overruled. The
proceedings were as follows:
---------------------------------------------------------------------------
13. 104 Cong. Rec. 2910, 85th Cong. 2d Sess.
---------------------------------------------------------------------------
Funds Appropriated to the President
President's special international program
Not to exceed $1 million of the funds previously appropriated
under this head for the trade fair exhibit in Gorki Park, Moscow,
may be used for the Universal and International Exhibition of
Brussels, 1958, and the limitation thereon as contained in the
Supplemental Appropriation Act, 1958, is increased from
``$7,045,000'' to ``$8,045,000.''
[[Page 5534]]
Mr. [John E.] Fogarty [of Rhode Island]: Mr. Chairman, I offer
an amendment.
The Clerk read as follows:
Amendment offered by Mr. Fogarty: On page 17, lines 21 and
22, strike out ``$8,045,000'' and insert in lieu thereof the
following: ``$9,045,000, and in addition there is hereby
appropriated $1,000,000 to establish and conduct a health
exhibit in connection with the Universal and International
Exhibition of Brussels.''
Mr. [John J.] Rooney [of New York]: Mr. Chairman, I am
constrained to make a point of order against this amendment for the
reason that the purpose of it is not authorized. . . .
The Chairman: (14) the Chair is ready to rule.
---------------------------------------------------------------------------
14. Francis E. Walter (Pa.).
---------------------------------------------------------------------------
The amendment offered by the gentleman from Rhode Island
provides:
To establish and conduct a health exhibit in connection
with the Universal and International Exhibition of Brussels.
In the statute authorizing our participation in this exhibition
it is provided:
Sec. 2. The President is authorized to provide for United
States representation in artistic, dramatic, musical, sports,
and other cultural competitions and like exhibitions abroad
The phrase ``like exhibitions abroad'' in the opinion of the
present occupant of the Chair, is sufficiently broad to include the
object of the amendment offered by the gentleman from Rhode Island,
particularly in view of the fact that in the stated purpose--and,
of course, the purpose is not binding, however, it is provided:
The purpose of this chapter is to strengthen the ties which
unite us with other nations by demonstrating the cultural
interests, developments, and achievements of the people of the
United States.
It certainly would seem to the present occupant of the Chair
that one of the things we could point to with greatest pride would
be our accomplishments in the medical field and the contributions
being made by the United States economic and social system toward
the peaceful and more fruitful life for its own people, and so on.
Reading the broad general purpose together with the statement
in the statute concerning the President's authorization, leads the
Chair to conclude that the appropriation is authorized by law.
The point of order is overruled.
Translation of Foreign Literature
Sec. 17.7 An amendment proposing to earmark part of the appropriation
for the United States Information Agency for the establishment of a
nonprofit book corporation to provide facilities for the
translation and publication of books and other printed matter in
various foreign languages was held to be unauthorized by law.
On Apr. 14, 1955,(15) the Committee of the Whole was
consid
[[Page 5535]]
ering H.R. 5502, an appropriation bill for the Departments of State and
Justice, the Judiciary, and related agencies. At one point the Clerk
read as follows, and proceedings ensued as indicated below:
---------------------------------------------------------------------------
15. 101 Cong. Rec. 4504, 84th Cong. 1st Sess.
---------------------------------------------------------------------------
Amendment offered by Mr. O'Hara of Illinois: On page 35, line
14 strike out ``Provided'' and insert in lieu thereof the
following: ``Provided, That not to exceed $350,000 shall be used
for the establishment of a nonprofit book corporation to provide
facilities for the translation and publication of books and other
printed matter in the various foreign languages: Provided
further,''
Mr. [John J.] Rooney [of New York]: Mr. Chairman, I reserve a
point of order against the amendment.
Mr. [Barratt] O'Hara of Illinois: Mr. Chairman, I had hoped
that this amendment would be accepted by the Committee.
All that this amendment seeks to do is to make available to the
peoples of the world the classics of American democracy that were
the inspiration of our forefathers and have been an inspiration in
our own lives. . . .
Mr. Rooney: Mr. Chairman, I insist on the point of order There
is no authority in law for the appropriation, and it is legislation
on an appropriation bill.
The Chairman: (16) The gentleman from Illinois [Mr.
O'Hara] offers an amendment which the Clerk has reported, against
which the gentleman from New York [Mr. Rooney] makes a point of
order on the ground that it is not authorized by law. Can the
gentleman from Illinois, the author of the amendment, cite to the
Chair any authority in law for this appropriation?
---------------------------------------------------------------------------
16. Jere Cooper (Tenn.).
---------------------------------------------------------------------------
Mr. O'Hara of Illinois: Mr. Chairman, I am embarrassed by
replying that I cannot.
The Chairman: The Chair appreciates the gentleman's reply.
Obviously, the amendment is not in order. The Chair therefore
sustains the point of order.
Appropriations to Nations Which Are Not Authorized to Receive Aid
Sec. 17.8 To a bill making appropriations for mutual security, 1952, to
countries party to the North Atlantic Treaty and to countries
determined by the President to be eligible for such assistance, an
amendment providing that a part of the appropriations should be
available for Spain, which was not included in either of the two
categories, was held to be unauthorized.
On Oct. 11, 1951,(17) the Committee of the Whole was
considering H.R. 5684. During consideration of the bill, a point of
order was sustained against an amendment as indicated below:
---------------------------------------------------------------------------
17. 97 Cong. Rec. 13020, 13025, 13026, 82d Cong. 1st Sess.
---------------------------------------------------------------------------
Military assistance, title I: For assistance authorized by
section
[[Page 5536]]
101(a)(1), $5,072,476,271, of which $44,476,271 is for payment of
obligations incurred under authority granted in the Second
Supplemental Appropriation Act, 1950, and extended in the Foreign
Aid Appropriation Act, 1951, to enter into contracts under the
Mutual Defense Assistance Act of 1949, as amended (22 U.S.C. 1571-
1604); and, in addition, unexpended balances of appropriations
heretofore made for carrying out the purposes of title I of the
Mutual Defense Assistance Act of 1949, as amended, shall remain
available through June 30, 1952, and such unexpended balances of
appropriations shall be consolidated with this appropriation; . . .
Mr. [William J.] Green [Jr., of Pennsylvania]: Mr. Chairman, I
offer an amendment which is at the Clerk's desk
The Clerk read as follows:
Amendment offered by Mr. Green: On page 2, line 12, after
the word ``appropriation'' and before the semicolon, insert
``Provided, That of the amount appropriated by this paragraph
the amount of $200,000,000 shall be available for military
assistance to Spain.''
Mr. [J. Vaughan] Gary [of Virginia]: Mr. Chairman, I raise a
point of order against the amendment. . . .
The Chairman: (18) The first section of title I of
the Mutual Security Act of 1951 provides authorization for
appropriation for military assistance to European countries only in
the following categories:
---------------------------------------------------------------------------
18. Francis E. Walter (Pa.).
---------------------------------------------------------------------------
First. To countries party to the North Atlantic Treaty, and
Second. To countries determined by the President to be eligible
for such assistance under conditions spelled out by the act.
The act does not authorize appropriations to be available for
countries other than those in the categories indicated. The Chair
understands that Spain in not a party to the North Atlantic Treaty,
and that the President has not designated Spain as an eligible
country.
Therefore, the amendment provides for an appropriation which
has not been authorized by law, and the point of order is
sustained.
Expenses Incident to Treaty
Sec. 17.9 A treaty providing that representatives of the participating
countries were to determine and record amounts of water available
for purposes of the treaty and ``to record the amounts of water
used for power diversions'' was held to authorize an appropriation
for ``investigations, pending authorization for construction, of
projects for development . . . for power purposes of waters of the
Niagara River''; and a reservation to the treaty that ``no project
for redevelopment of the United States share of such waters shall
be undertaken until it be specifically authorized by Act of
Congress'' was held not to nullify such authorization.
[[Page 5537]]
On Apr. 10, 1951,(19) the Committee of the Whole was
considering H.R. 3587, a supplemental appropriation bill. The following
proceedings took place:
---------------------------------------------------------------------------
19. 97 Cong. Rec. 3575, 82d Cong. 1st Sess.
---------------------------------------------------------------------------
niagara power development
For engineering and economic investigations, pending
authorization for construction, of projects for development and
utilization for power purposes of the waters of the Niagara River,
allocated to the United States under the treaty between the United
States of America and Canada signed February 27, 1950, and ratified
by the United States Senate on August 9, 1950, to remain available
until expended, $450,000.
Mr. [Ivor D.] Fenton [of Pennsylvania]: Mr. Chairman, a point
of order.
The Chairman: (20) The gentleman will state it.
---------------------------------------------------------------------------
20. James J. Delaney (N.Y.).
---------------------------------------------------------------------------
Mr. Fenton: Mr. Chairman, I raise a point of order to the
language appearing on page 17, lines 9 to 18, inclusive, as an
appropriation not authorized by law. . . .
The Chairman: The Chair is ready to rule.
The point of order has been made that the item appearing on
page 17, lines 9 to 18, inclusive, for Niagara power development is
not authorized by law. It will be noted that the language of the
proposed appropriation provides for investigations pending
authorizations for construction of projects for power purposes of
the waters of the Niagara River allocated to the United States
under the treaty between the United States of America and Canada
signed February 27, 1950, and ratified by the United States Senate
on August 9, 1950.
The Chair has examined a copy of the treaty and finds that the
treaty provides in some detail for distribution of the water which
flows over the Niagara Falls between the United States and Canada
and then in article 7 provides:
The United States of America and Canada shall each
designate a representative, who, acting jointly, shall
ascertain and determine the amounts of water available for the
purposes of this treaty, and shall record the same, and shall
also record the amounts of water for power diversions.
It has long been settled that a duly ratified treaty to which
the United States is party constitutes authority of law for
appropriations. And it has also been settled by decisions of the
Chair that the treaty need not specifically authorize specific
appropriations. It is necessary only that the proposed
appropriations be directly necessary to enable the United States to
carry out the obligations it has assumed under the treaty For
example, in volume 7 of Cannon's Precedents, section 1138, a
decision is recorded holding that where the United States has
entered into a treaty establishing an international institute it is
in order to appropriate the necessary funds to send delegates to
the institute. It was further held in section 1142, volume 7,
Cannon's Precedents, that a treaty providing for mutual reports by
contracting parties to an international bureau was held to
[[Page 5538]]
sanction appropriations for the bureau's maintenance although no
treaty had been entered into providing for the establishment of the
bureau itself.
It seems clear, therefore, that the proposed appropriation is
entirely within the purview of the treaty, as its only purpose is
to provide the necessary funds for the United States to pay the
expenses of the duly authorized representative of the United States
acting under article 7 of the treaty.
The Chair, therefore, overrules the point of order.
Cultural Relations Program
Sec. 17.10 To a bill making appropriations for the Department of State,
an amendment providing an appropriation for an information and
cultural program to be disseminated in foreign countries was held
to be unauthorized.
On May 14, 1947,(1) during consideration in the
Committee of the Whole of a general appropriation bill (H.R. 3311), a
point of order was raised against the following amendment:
---------------------------------------------------------------------------
1. 93 Cong. Rec. 5291, 5292, 80th Cong. 1st Sess.
---------------------------------------------------------------------------
Mr. [J. Vaughan] Gary [of Virginia]: Mr. Chairman, I offer an
amendment.
The Clerk read as follows:
Amendment offered by Mr. Gary: Page 2, line 18, after the
semicolon insert ``acquisition, production, and free
distribution of informational materials for use in connection
with the operation, independently or through individuals,
including aliens, or public or private agencies (foreign or
domestic), and without regard to section 3709 of the Revised
Statutes, of an information program outside of the continental
United States, including the purchase of radio time . . . and
the purchase, rental . . . and operation of facilities for
radio transmission and reception, the acquisition of land and
interests in land . . . for radio broadcasting and relay
facilities, and the acquisition or construction of buildings
and necessary improvements on such lands; purchase and
presentation of various objects of a cultural nature suitable
for presentation (through diplomatic and consular offices) to
foreign governments, schools, or other cultural or patriotic
organizations . . . not to exceed $13,000 for entertainment.''
Mr. [Karl] Stefan [of Nebraska]: Mr. Chairman, I make a point
of order against the amendment.
The Chairman: (2) The gentleman will state his point
of order.
---------------------------------------------------------------------------
2. Carl T. Curtis (Nebr.).
---------------------------------------------------------------------------
Mr. Stefan: Mr. Chairman, I make the point of order this is not
authorized by law and it is legislation on an appropriation bill. .
. .
The Chairman: Does the gentleman from Virginia desire to be
heard on the point of order?
Mr. Gary: I do not, Mr. Chairman.
The Chairman: The Chair is prepared to rule. It is the opinion
of the Chair that the amendment does propose legislation on an
appropriation bill, the functions therein referred to not being
authorized by law. The point of order is sustained.
[[Page 5539]]
Sec. 17.11 An appropriation to enable the Secretary of State to carry
out a program of ``cultural relations with China and countries of
the Near East and Africa'' was held unauthorized by law and to be
legislation waiving existing law.
On Mar. 15, 1945,(3) during consideration in the
Committee of the Whole of a general appropriation bill (H.R. 2603), a
point of order was raised against the following provision:
---------------------------------------------------------------------------
3. 91 Cong. Rec. 2307, 79th Cong. 1st Sess.
---------------------------------------------------------------------------
Cultural relations with China and the neighboring countries and
countries of the Near East and Africa: For all expenses, without
regard to section 3709 of the Revised Statutes, necessary to enable
the Secretary of State independently or in cooperation with other
agencies of the Government to carry out a program of cultural
relations with China and the neighboring countries and with
countries of the Near East and Africa, $1,390,000 (payable from the
appropriation ``Emergency fund for the President,'' contained in
the First Supplemental National Defense Appropriation Act, 1943, as
supplemented and amended). . . .
Mr. [Henry C.] Dworshak [of Idaho]: Mr. Chairman, I make a
point of order against all of the paragraph beginning line 25, page
29, to and including line 17, on page 31, on the ground it is
legislation on an appropriation bill and there is no authority in
law for such an appropriation.
Mr. [Louis C.] Rabaut [of Michigan]: Mr. Chairman, I concede
the point of order.
The Chairman: (4) The point of order is sustained
---------------------------------------------------------------------------
4. Wilbur D. Mills (Ark.).
---------------------------------------------------------------------------
International Conference on Education
Sec. 17.12 Appropriations for a Conference of Allied Ministers of
Education in London were conceded and held to be unauthorized by
law.
On Mar. 15, 1945,(5) the Committee of the Whole was
considering H.R. 2603, a bill making appropriations for the State,
Judiciary, and Commerce Departments, and the Federal Loan Agency. The
following proceedings took place:
---------------------------------------------------------------------------
5. 91 Cong. Rec. 2307, 79th Cong. 1st Sess.
---------------------------------------------------------------------------
Conference of Allied Ministers of Education in London: For all
necessary expenses of the participation by the United States in the
Conference of Allied Ministers of Education in London, or its
successor, and in addition for surveys and studies related to the
work thereof, including personal services in the District of
Columbia and elsewhere without regard to civil-service and
classification laws; travel expenses without regard to the
Standardized Government Travel Regulations and the Subsistence
Expense Act of 1926, as amended; entertainment,
[[Page 5540]]
stenographic reporting and other services by contract, books of
reference and periodicals, and rent of office space, without regard
to section 3709 of the Revised Statutes; printing and binding; and
the share of the United States in the expenses of the secretariat
of the Conference; $172,000, payable from the appropriation
``Emergency fund for the President,'' contained in the First
Supplemental National Defense Appropriation Act, 1943, as
supplemented and amended.
Mr. [Robert F.] Jones [of Ohio]: Mr. Chairman, I make a point
of order against the entire paragraph, beginning line 7, page 29,
and continuing through line 24, on the ground this is not
authorized by law.
Mr. [Louis C.] Rabaut [of Michigan]: Mr. Chairman, we concede
the point of order.
The Chairman: (6) The point of order is sustained.
---------------------------------------------------------------------------
6. Wilbur D. Mills (Ark.).
---------------------------------------------------------------------------
Foreign Service Incidental Expenses
Sec. 17.13 ``Representation'' allowances for ambassadors and foreign
service officers were held authorized by law.
On Feb. 26, 1943,(7) the Committee of the Whole was
considering H.R. 1975, a deficiency appropriation bill Proceedings were
as follows:
---------------------------------------------------------------------------
7. 89 Cong. Rec. 1369, 78th Cong. 1st Sess.
---------------------------------------------------------------------------
Foreign Service, auxiliary (emergency): For an additional
amount for Foreign Service, auxiliary (emergency), Department of
State, fiscal year 1943, including the objects specified under this
head in the Department of State Appropriation Act, 1943, $491,000:
Provided, That cost of living and representation allowances, as
authorized by the act approved February 23, 1931, as amended, may
be paid from this appropriation to American citizens employed
hereunder.
Mr. [Edward H.] Rees of Kansas: Mr. Chairman, a point of order.
The Chairman: (8) The gentleman will state it.
---------------------------------------------------------------------------
8. Howard W. Smith (Va.).
---------------------------------------------------------------------------
Mr. Rees of Kansas: Mr. Chairman, I make a point of order
against the words ``and representation,'' in line 11 on page 23, on
the ground that they are legislation on an appropriation bill.
Mr. [Clarence] Cannon of Missouri: Mr. Chairman, the item is
authorized by law. Paragraph 12 of title XXII, found on page 1877
of the United States Code, provides specific authorization for the
item.
Mr. Rees of Kansas: As I understand, this appropriation is for
a new auxiliary service, not the regular service.
The Chairman: Will the gentleman from Missouri advise the Chair
whether the auxiliary service referred to in the paragraph is
authorized by law?
Mr. Cannon of Missouri: This comes within the provisions of the
statute, which reads:
Under such regulations as the President may prescribe, and
within the limitations of such appropriations as may be made
therefor, which appropriations are authorized, ambassadors,
ministers, Diplomatic,
[[Page 5541]]
Consular, and Foreign Service officers may be granted
allowances for representation; and also post allowances
wherever the cost of living may be proportionately so high
that, in the opinion of the Secretary of State, such allowances
are necessary to enable such Diplomatic, Consular, and Foreign
Service officers to carry on their work efficiently.
The Chairman: The Chair has advised itself on the language
referred to by the gentleman from Missouri, but the point on which
the Chair would like to be enlightened is the language in the last
sentence of the paragraph referring to the fact that moneys may be
paid from this appropriation to American citizens employed
thereunder.
Mr. Cannon of Missouri: Mr. Chairman, there is no specific
legislation authorizing the Foreign Service Auxiliary, but it is in
existence and is in operation at this time for this fiscal year. No
point of order was made by the gentleman on that score. The point
of order was directed at the provision for representation
allowances, which are authorized by law, as I have indicated.
Mr. Rees of Kansas: Not for this kind of organization, Mr.
Chairman.
The Chairman: Will the gentleman from Missouri kindly answer
one more questions the Chair has in mind? Is there legislative
authorization for representation allowances to be made to American
citizens employed in accordance with this paragraph?
Mr. Cannon of Missouri: Mr. Chairman, language could not be
more explicit than that just cited from paragraph 12 of title XXII,
which specifically covers authorization of appropriations for cost
of living and representation allowances under such circumstances.
The Chairman: What the Chair is concerned about is, Does the
term ``American citizens'' as used in this paragraph refer to
ambassadors, ministers, diplomatic, consular, and Foreign Service
officers. Is that what the committee has in mind?
Mr. Cannon of Missouri: Unless they were American citizens they
could not be serving as representatives of this Government.
The Chairman: Are they employees under the terms of this law?
Mr. Cannon of Missouri: Certainly; there can be no question
about it.
The Chairman: In view of the explanation made by the chairman
of the Committee on Appropriations as to the existing law, the
Chair is constrained to overrule the point of order made by the
gentleman from Kansas.(9)
---------------------------------------------------------------------------
9. A further point of order made by Mr. Rees is discussed in
Sec. 17.14, infra.
---------------------------------------------------------------------------
Foreign Service Auxiliary.
Sec. 17.14 Appropriations for the Foreign Service Auxiliary were not
authorized by law.
On Feb. 26, 1943,(10) the Committee of the Whole was
considering H.R. 1975, a deficiency appropriation. At one point the
Clerk read as follows, and proceedings ensued as indicated below:
---------------------------------------------------------------------------
10. 89 Cong. Rec. 1369, 78th Cong. 1st Sess.
---------------------------------------------------------------------------
Foreign Service, auxiliary (emergency): For an additional
amount for
[[Page 5542]]
Foreign Service, auxiliary (emergency), Department of State, fiscal
year 1943, including the objects specified under this head in the
Department of State Appropriation Act, 1943, $491,000: Provided,
That cost of living and representation allowances, as authorized by
the act approved February 23, 1931, as amended, may be paid from
this appropriation to American citizens employed hereunder.
Mr. [Edward H.] Rees of Kansas: Mr. Chairman, I make the . . .
point of order against the language in lines 6 to 13 on page 23
that it is legislation on an appropriation bill not authorized by
law. . . .
Mr. [Clarence] Cannon of Missouri: We have passed the
proposition, Mr. Chairman; we are now on the proviso. The point of
order made by the gentleman did not apply to the first portion,
which is a separate entity as against the proviso. Inasmuch as the
point of order was not interposed at the time, it now comes too
late.(11)
---------------------------------------------------------------------------
11. The prior point of order is discussed in Sec. 17.13, supra.
---------------------------------------------------------------------------
The Chairman: (12) The Chair advises the gentleman
from Missouri that he will hold that the point of order does not
come too late, in view of the fact that the proviso is a part of
the paragraph. Does the gentleman desire to advise the Chair any
further on the paragraph?
---------------------------------------------------------------------------
12. Howard W. Smith (Va.).
---------------------------------------------------------------------------
Mr. Cannon of Missouri. The point has been covered.
The Chairman: Will the gentleman from Missouri point out to the
Chair the legislative authority for the Foreign Service Auxiliary?
The section referred to by the gentleman from Missouri, which has
been analyzed by the Chair, refers to the language [``and
representation''] on line 11, page 23. Is there legislation to
which the gentleman can refer the Chair authorizing the Foreign
Service Auxiliary?
Mr. Cannon of Missouri: There is no specific legislation on
that, Mr. Chairman.
The Chairman: In view of the statement of the gentleman from
Missouri, the Chair sustains the point of order made by the
gentleman from Kansas.
International Committee on Political Refugees
Sec. 17.15 An appropriation for expenses of participation by the United
States in the International Committee on Political Refugees was not
authorized by law.
On June 23, 1939, (13) the Committee of the Whole was
considering H.R. 6970, a deficiency and supplemental appropriation
bill. The following proceedings took place:
---------------------------------------------------------------------------
13. 84 Cong. Rec. 7827, 76th Cong. 1st Sess.
---------------------------------------------------------------------------
International Committee on Political Refugees: For the expenses
of participation by the United States in the International
Committee on Political Refugees, including personal services in the
District of Columbia and elsewhere without regard to the civil
service laws and regulations or the Classification Act of 1923, as
amended; sten
[[Page 5543]]
ographic reporting, translating, and other services by contract if
deemed necessary, without regard to section 3709 of the Revised
Statutes (41 U.S.C. 5); rent; traveling expenses; purchase of
necessary books, documents, newspapers, and periodicals;
stationery, equipment; official cards; printing and binding;
entertainment; and such other expenses as may be authorized by the
Secretary of State, including the reimbursement of other
appropriations from which payments may have been made for any of
the purposes herein specified, fiscal year 1940, $20,000, together
with the unexpended balance of the appropriation for this purpose
for the fiscal years 1938 and 1939 contained in the Second
Deficiency Appropriation Act, fiscal year 1938: Provided, That no
salary shall be paid hereunder at a rate in excess of $10,000 per
annum.
Mr. [John] Taber [of New York]: Mr. Chairman, I make the point
of order on the paragraph on the ground that it is not authorized
by law.
The Chairman: (14) Does the gentleman from Virginia
wish to be heard upon the point of order?
---------------------------------------------------------------------------
14. R. Ewing Thomason (Tex.).
---------------------------------------------------------------------------
Mr. [Clifton A.] Woodrum of Virginia: Mr. Chairman, I think the
point of order is well taken.
The Chairman: The point of order is sustained.
Ambassadors' and Ministers' Pay
Sec. 17.16 Where the President at will has raised a legation to an
embassy or reduced an embassy to a legation and followed it with an
appointment under his constitutional authority in article II
section 2, that has been approved by the Senate, an appropriation
for the salary of the appointee has been held in order if the rate
of pay was not in contravention of law.
On May 19, 1939, (15) the Committee of the Whole was
considering H.R. 6392, a State, Justice, Judiciary, and Commerce
Departments appropriation. The following proceedings took place:
---------------------------------------------------------------------------
15. 84 Cong. Rec. 5846, 5847, 76th Cong. 1st Sess.
---------------------------------------------------------------------------
Foreign Intercourse
Salaries, Ambassadors and Ministers: Ambassadors Extraordinary
and Plenipotentiary to Argentina, Brazil, Chile, China, Colombia,
Cuba, France, Germany, Great Britain, Italy, Japan, Mexico, Panama,
Peru, Poland, Spain, Turkey, Union of Soviet Socialist Republics,
and Venezuela, at $17,500 each;
Mr. [John M.] Vorys of Ohio: Mr. Chairman, I make the point of
order in the paragraph to the words ``Columbia'' in line 21,
``Panama'' in line 22, ``Union of Soviet Socialist Republics'' and
``Venezuela'' in line 23. I make the point of order that each is an
appropriation not authorized by law. Title 22, section 31, of the
Code sets forth the act of March 2, 1909, which provides:
No new ambassadorships shall be created unless the same
shall be provided for by act of Congress.
[[Page 5544]]
As to the other ambassadorships which are listed in this
paragraph, they have been provided for by acts of Congress. As to
these four, the Union of Soviet Socialist Republics has no
statutory authorization, and the other three are new
ambassadorships created in South America during last fall by the
Department of State, for which there is no authority in law. There
is not only no authority, but the appropriation is in clear
violation of the act of Congress which I have quoted, which forbids
the creation of new ambassadorships unless the same shall be
provided for by act of Congress. . . .
The Chairman: (16) Will the gentleman permit the
Chair to ask the gentleman from Ohio a question? The Chair would
like to know whether or not the gentleman has taken the position
that the Ambassadors or Ministers referred to have not been
actually appointed and confirmed.
---------------------------------------------------------------------------
16. Harold D. Cooley (N.C.).
---------------------------------------------------------------------------
Mr. Vorys of Ohio: Oh, no, Mr. Chairman, that is not the point
at all.
The Chairman: The gentleman concedes that these Ambassadors
have been appointed and confirmed by the Senate?
Mr. Vorys of Ohio: I concede that.
The Chairman: The Chair feels justified in taking judicial
notice of the appointment of these Ambassadors to these various
countries named. . . .
The Chair is prepared to rule. This specific question seems to
have been passed upon on a former occasion. In Cannon's Precedents,
volume 7, section 1248, we find the following language:
The power of the President to appoint diplomatic
representatives to foreign governments and to determine their
rank is derived from the Constitution and may not be
circumscribed by statutory enactments.
Where the President has appointed a diplomatic
representative and the appointment has been approved by the
Senate, a point of order does not lie against an appropriation
for the salary of such representative unless the rate of pay
has been otherwise fixed by law.
A statute prohibiting the creation of new ambassadorships
except by act of Congress is in contravention of the
President's constitutional prerogatives and will not support a
point of order against an appropriation for the salary of an
ambassadorship not created by act of Congress but appointed by
the President and confirmed by the Senate.
The President, at will, may raise a legation to an embassy
or reduce an embassy to a legation, any statute to the contrary
notwithstanding, and where the President has made such change
and followed it with an appointment which has been approved by
the Senate, an appropriation for the salary of the appointee is
in order unless the rate of pay is in contravention of law.
In the decision to which the Chair has referred the Honorable
Horace M. Towner, of Iowa, Chairman of the Committee of the Whole
House on the state of the Union, referred to the identical statute
referred to by the gentleman from Ohio, and that was taken into
consideration at the time the decision was rendered.
In view of the precedents of the House, the Chair overrules the
point of order.
Sec. 17.17 An appropriation for the salary of a particular U.S minister
to a foreign country
[[Page 5545]]
is not authorized by law (the Constitution) if the President has
made an appointment but the Senate has not confirmed the appointee.
On Aug. 17, 1937,(17) the Committee of the Whole was
considering H.R. 8245, a deficiency appropriation bill. The following
proceedings took place:
---------------------------------------------------------------------------
17. 81 Cong. Rec. 9175, 9176, 75th Cong. 1st Sess.
---------------------------------------------------------------------------
Salaries of ambassadors and ministers: For an additional amount
for salaries of ambassadors and ministers, fiscal year 1938, for
the salary of an envoy extraordinary and minister plenipotentiary
to Lithuania at $10,000 per annum, $8,333.34: Provided, That the
appropriation for salaries of ambassadors and ministers, fiscal
year 1938, shall be available for payment of the salary of an envoy
extraordinary and minister plenipotentiary to Estonia and Latvia at
$10,000 per annum. . . .
Mr. [Hamilton] Fish [Jr., of New York]: Mr. Chairman, I make a
point of order against the language on page 28, lines 4 to 12,
inclusive, as constituting legislation on an appropriation bill,
not authorized by law. It creates a new position, that of Minister
of Lithuania. The President has no constitutional right and is
empowered by no act of Congress to create additional positions. . .
.
The Chairman: (18) The Chair is ready to rule As
stated by the gentleman from Virginia, the President has the right
to appoint. At the present time, however, the Senate has not
confirmed the appointment. The appropriation, therefore, is subject
to a point of order.
---------------------------------------------------------------------------
18. Claude V. Parsons (Ill.).
---------------------------------------------------------------------------
The Chair sustains the point of order.
Arms Control and Disarmament
Sec. 17.18 A paragraph in a general appropriation bill containing funds
for the Arms Control and Disarmament Agency was conceded to be
unauthorized by law for the fiscal year in question and was ruled
out in violation of Rule XXI clause 2.
On June 14, 1978,(19) during consideration in the
Committee of the Whole of the Departments of State, Justice, Commerce,
and Judiciary appropriation bill (H.R. 12934) a point of order was
raised and sustained against the following provision:
---------------------------------------------------------------------------
19. 124 Cong. Rec. 17629, 95th Cong. 2d Sess.
---------------------------------------------------------------------------
Arms Control and Disarmament Agency
arms control and disarmament activities
For necessary expenses, not otherwise provided for, for arms
control and disarmament activities, including not to exceed $15,000
for official reception and representation expenses, author
[[Page 5546]]
ized by the Act of September 26, 1961, as amended (22 U.S.C. 2551
et seq.), $16,395,000.
Mr. [John H.] Rousselot [of California]: Mr. Chairman, I make a
point of order on the basis of clause 2, rule XXI, that this is an
unauthorized appropriation and is not authorized by law.
Mr. [John M.] Slack [of West Virginia]: Mr. Chairman, I concede
the point of order.
The Chairman: (20) The gentleman from West Virginia
(Mr. Slack) concedes the point of order, the paragraph is stricken,
and the Clerk will read.
---------------------------------------------------------------------------
20. George E. Brown, Jr. (Calif.).
---------------------------------------------------------------------------
Parliamentarian's Note: 22 USC Sec. 2589 contains specific
authorization for this agency on a fiscal year basis, and the bill
amending this law to authorize appropriations for fiscal 1979 had
passed both Houses prior to June 14 but had not yet been enacted into
law (Public Law No. 95-338). This agency was not covered by the State
Department authorization restriction cited supra, but is an independent
agency governed solely by 22 USC Sec. Sec. 2551-2589.
Board for International Broadcasting
Sec. 17.19 A paragraph in a general appropriation bill containing funds
for the Board for International Broadcasting was conceded to be
unauthorized by law for the fiscal year in question and was ruled
out in violation of Rule XXI clause 2.
On June 14, 1978, (1) during consideration in the
Committee of the Whole of the Departments of State, Justice, Commerce,
and Judiciary appropriation bill (H.R. 12934), a point of order was
sustained against the following provision:
---------------------------------------------------------------------------
1. 124 Cong. Rec. 17629, 95th Cong. 2d Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
Board for International Broadcasting
grants and expenses
For expenses of the Board for International Broadcasting,
including grants to RFE/RL, Inc., $85,000,000, of which
$2,000,000, to remain available until expended, shall be
available only for fluctuations in foreign currency exchange
rates in accordance with the provisions of section 8 of the
Board for International Broadcasting Act of 1973, as amended:
Provided, That not to exceed $40,000 shall be available for
official reception and representation expenses.
Mr. [John H.] Rousselot [of California]: Mr. Chairman, I make a
point of order on the basis of clause 2, rule XXI, that this is an
unauthorized appropriation and has not been authorized by law.
Mr. [John M.] Slack [of West Virginia]: Mr. Chairman, I concede
the point of order.
[[Page 5547]]
The Chairman: (2) The gentleman from West Virginia
(Mr. Slack) concedes the point of order.
---------------------------------------------------------------------------
2. George E. Brown, Jr. (Calif.).
---------------------------------------------------------------------------
The paragraph is stricken and the Clerk will read.
Parliamentarian's Note: 22 USC Sec. 2877 contains specific
authorization for the Board on a fiscal year basis, and the fiscal 1979
authorization bill for this Board was part of H.R. 12598, State
Department and other agencies authorization bill, which had passed the
House but not the Senate on this date (see Public Law No. 95-426).
Under 22 USC Sec. 2872, however, the Board was established
independently of the Department of State and was not therefore subject
to the restrictions in 22 USC Sec. 2680(a) requiring specific
authorization for State Department activities.
International Communications Agency
Sec. 17.20 The creation of the International Communications Agency by
Reorganization Plan No. 2 of 1977 was conceded not to constitute
sufficient authorization in law for appropriations for that agency
for fiscal 1979, where under section 2 of that plan the agency
remained subject to direction of the Department of State and thus
subject to the requirement for specific authorization in law
applicable to the Department, where the specific authorization bill
for the fiscal year in question had not yet been enacted, and where
the reorganization plan contained no specific authorization for
appropriations.
On June 14, 1978,(3) during consideration in the
Committee of the Whole of the Departments of State, Justice, Commerce,
and Judiciary appropriation bill (H.R. 12934), a point of order was
sustained against the following provision:
---------------------------------------------------------------------------
3. 124 Cong. Rec. 17630, 95th Cong. 2d Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
International Communication Agency
salaries and expenses
For expenses, not otherwise provided for, necessary to
enable the International Communication Agency, as authorized by
Reorganization Plan No. 2 of 1977, the Mutual Educational and
Cultural Exchange Act (22 U.S.C. 2451 et seq.), and the United
States Information and Educational Exchange Act, as amended (22
U.S.C. 1431 et seq.), to carry out international communication,
educational and cultural activities. . . .
Mr. [John H.] Rousselot [of California]: Mr. Chairman, I make a
point
[[Page 5548]]
of order on the basis of rule XXI, clause 2, that this is an
unauthorized appropriation and has not been authorized by law.
Mr. [John M.] Slack [of West Virginia]: Mr. Chairman, I concede
the point of order.
The Chairman: (4) The point of order is conceded,
sustained, and the paragraph is stricken.
---------------------------------------------------------------------------
4. George E. Brown, Jr. (Calif.).
---------------------------------------------------------------------------
Department of State, Requirement for Annual Authorization
Sec. 17.21 Appropriations in a general appropriation bill for the
Department of State, including salaries and expenses,
representation allowances, expenses under the Foreign Services
Buildings Act, special foreign currency program, emergencies in the
diplomatic and consular service, retirement and disability fund,
international conferences, international peacekeeping activities,
missions to international organizations, international conferences
and contingencies, international trade negotiations, international
commissions, construction, and general provisions, no
authorizations for such appropriations having been enacted for the
fiscal year in question as specifically required by law, were
conceded to be unauthorized and were ruled out as in violation of
Rule XXI clause 2.
Pursuant to law [22 USC Sec. 2680(a)(1)], no funds shall be
available to the Department of State for obligation or expenditure
unless the appropriation thereof has been authorized by law enacted
after February 1972 (thus requiring specific subsequently enacted
authorizations for both the direct operations of that Department and
related functions delegated to it by laws enacted prior to that date,
and not permitting appropriations under Rule XXI clause 2 to be
authorized by the ``organic statute'' or other laws earlier authorizing
appropriations for related activities). Accordingly, on June 14, 1978,
(5) during consideration of H.R. 12934 (Departments of
State, Justice, Commerce, and the Judiciary, and related agencies
appropriations for fiscal 1979), several points of order made against
paragraphs of the bill were conceded and sustained. Among the
provisions subject to points of order were the following:
---------------------------------------------------------------------------
5. 124 Cong. Rec. 17616, 17617, 17620, 95th Cong. 2d Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
[[Page 5549]]
For necessary expenses of the Department of State and the
Foreign Service, not otherwise provided for, including
allowances as authorized by 5 U.S.C. 5921-5925; expenses of
binational arbitrations arising under international air
transport agreements; expenses necessary to meet the
responsiblities and obligations of the United States in Germany
(including those arising under the supreme authority assumed by
the United States on June 5, 1945, and under contractual
arrangements with the Federal Republic of Germany) . . .
$659,000,000. . . .
Mr. [John H.] Rousselot [of California]: Mr. Chairman, I make a
point of order against this language in this paragraph in that it
amounts to an unauthorized appropriation, and it cannot be
contained in an appropriation bill unless authorized by law. . . .
Mr. [John M.] Slack [of West Virginia]: . . . Mr. Chairman, the
gentleman is correct if he insists on his point of order, in which
event I would concede the point of order.
The Chairman: (6) The point of order is conceded and
sustained. The paragraph in question is stricken from the bill. . .
.
---------------------------------------------------------------------------
6. George E. Brown, Jr. (Calif.).
---------------------------------------------------------------------------
The Clerk read as follows:
For necessary expenses of carrying into effect the Foreign
Service Buildings Act, 1926, as amended (22 U.S.C. 292-300),
including personal services in the United States and abroad;
salaries and expenses of personnel and dependents as authorized
by the Foreign Service Act of 1946, as amended (22 U.S.C 801-
1158); allowances as authorized by 5 U.S.C. 5921-5925; and
services as authorized by 5 U.S.C. 3109; $125,000,000, to
remain available until expended: Provided, That not to exceed
$2,544,000 may be used for administrative expenses during the
current fiscal year. . . .
Mr. Rousselot: Mr. Chairman, I make a point of order against
the language in this paragraph in that it amounts to an
unauthorized appropriation, and it cannot be contained in an
appropriation bill unless authorized by law. . . .
Mr. Slack: . . . Mr. Chairman, again, if the gentleman from
California insists on his point of order, I concede the point of
order. . . .
The Clerk read as follows:
For payment to the Foreign Service Retirement and
Disability Fund, as authorized by law, $38,107,000.
Mr. Rousselot: Mr. Chairman, on the basis of clause 2, rule
XXI, I make the same point of order. . . .
Mr. Slack: Mr. Chairman, I concede the point of order.
The Chairman: The Chair makes the same ruling. . . .
The Clerk read as follows:
international trade negotiations
For necessary expenses of participation by the United
States in international trade negotiations, including not to
exceed $25,000 for representation allowances, as authorized by
section 901 of the Act of August 13, 1946, as amended (22
U.S.C. 1131), and for official entertainment, $4,717,000:
Provided, That this appropriation shall be available in
accordance with the authority provided in the current
appropriation for ``International conferences and
contingencies''.
Mr. Rousselot: Mr. Chairman, on the basis of clause 2, rule
XXI, I make the same point of order once again. . . .
[[Page 5550]]
Mr. Slack: Mr. Chairman, I concede the point of order.
The Chairman: The Chair sustains the point of order. In each
case the paragraph will be stricken.
CHAPTER 26
Unauthorized Appropriations; Legislation on Appropriation Bills
B. APPROPRIATIONS FOR UNAUTHORIZED PURPOSES
Sec. 18. Justice
Training of United States Attorneys
Sec. 18.1 An appropriation for the training of United States attorneys
and other officials was held not authorized by a law empowering the
Attorney General to exercise supervision over United States
attorneys.
On Apr. 3, 1936,(7) the Committee of the Whole was
considering H.R. 12098, an appropriation bill for the State, Justice,
Commerce, and Labor Departments. During consideration, a point of order
was sustained against a paragraph in the bill as indicated below:
---------------------------------------------------------------------------
7. 80 Cong. Rec. 4926, 4927, 74th Cong. 2d Sess.
---------------------------------------------------------------------------
Salaries and expenses: For salaries and expenses incident to
the special instruction and training of the United States attorneys
and United States marshals, their assistants and deputies, and
United States commissioners, including personal services, supplies,
and equipment in the District of Columbia, traveling expenses,
including expenses of attendance at meetings when specifically
authorized by the Attorney General, $35,000.
Mr. [Thomas L.] Blanton [of Texas]: Mr. Chairman, I make a
point of order against the paragraph beginning on page 38, line 17,
ending on line 26, embracing the proposed appropriation of $35,000,
because there is no law authorizing it and it is legislation upon
an appropriation bill, unauthorized by law.
The Chairman: (8) the Chair will hear the gentleman
from South Carolina [Mr. McMillan] on the point of order.
---------------------------------------------------------------------------
8. Byron B. Harlan (Ohio).
---------------------------------------------------------------------------
Mr. [John L.] McMillan: Mr. Chairman, this item is carried in
the bill, I may say to the Committee, on the authority of law as we
find it in section 317 of title V of the Code of Laws of the United
States in force January 3, 1935, in which I find this language:
The Attorney General shall exercise general superintendence
and direction over the attorneys and marshals in the districts
of the United States and Territories as to the manner of
discharging their respective duties--
And so forth. We take it that, in view of the language I have
just read, the Attorney General would have discretion under this
substantive law to provide for these men, marshals and district
attorneys, and what not, to be brought to Washington for such a
course of instruction or training as they may need. The purpose of
this language is to make uniform a policy to apply to district
attorneys and marshals throughout the country.
[[Page 5551]]
Mr. Blanton: Mr. Chairman, that language in the statute read by
the gentleman from South Carolina [Mr. McMillan] in no way embraces
authority for ``special instruction and training of United States
attorneys and United States marshals, their assistants and
deputies, and United States commissioners'' and their trips to
Washington. There is nothing in that language read by my colleague
that embraces or authorizes anything like that. This is nothing in
the world but providing for junket trips, pure and simple, and such
junket trips to Washington have been turned down by the Comptroller
General in the past. I have some of the accounts in my office,
certified to by his office, showing where he has turned them down
because there is no authority of law. This $35,000 provision is an
attempt to get around the Comptroller General of the United States.
Mr. [John W.] McCormack [of Massachusetts]: Mr. Chairman, will
the gentleman yield?
The Chairman: The Chair is ready to rule. Does the gentleman
from Massachusetts wish to address the Chair on the point of order?
Mr. McCormack: Not necessarily on the point of order, but I
should like to ask the gentleman from Texas to yield, if he will.
Mr. Blanton: Certainly I yield to my friend from Massachusetts.
Mr. McCormack: I just wish to make this observation: I do not
think the gentleman means to let it remain in the Record that these
are junket trips. I think what the Attorney General has in mind is
something which is a very desirable objective, namely, to create
uniformity throughout the country in the offices of the United
States district attorneys. I know something about the objective of
the Attorney General in this respect. It seems to me that,
independent of the point of order, it should not be permitted to go
into the Record, without an expression of view to the contrary,
that this is nothing but a junket trip.
Mr. Blanton: I will say to the gentleman that he has not given
the attention to this matter that I have. I have gotten some of
these accounts in the past from the Comptroller General's office,
because it was my duty to look into those things as a member of
this committee. I have found out where they have attempted to put
these junket trips over and they have been approved by the
Department of Justice, but when they reached Comptroller General
McCarl he turned them down, and they were not paid out of
Government funds.
The Chairman: The Chair is ready to rule on the point of order.
The question to be decided is the interpretation of the phrase,
``special instruction and training'', contained in this
appropriation bill, the question being whether that phrase comes
under the statutory authorization to the Attorney General in the
section referred to by the gentleman from South Carolina [Mr.
McMillan], section 317 of title 5, in which the Attorney General is
authorized to exercise ``general superintendence and direction''
over the attorneys.
This section has been on the statute books certainly for more
than half a century. So far as the records disclose, up to the
present time there has been
[[Page 5552]]
no attempt to organize or operate a school for instructing district
attorneys under that authorization. There is very little in the
decisions interpreting this phrase of the statute. In the case of
Fish v. U.S. (36 Federal Reporter, 680), however, in a decision by
the District Court for the Eastern District of New York, the court,
by way of obiter, spoke as follows:
The section no doubt confers upon the Attorney General
power to superintend any criminal prosecution instituted by the
district attorney, and to direct the district attorney in
regard to the method of discharging his duties in any
particular prosecution instituted by him. But it does not, in
my opinion, authorize the attorney general to control the
action of the district attorney in criminal cases by general
regulations. The supervision and direction contemplated by
section 362 must, as I think, be a particular instruction,
given in a particular case, and based on the facts of the
particular case. To hold otherwise would in many instances
deprive the court of the aid of counsel, learned in the law,
which is contemplated by the statute, and substitute in place
of counsel a set of general regulations issued by the Attorney
General; and in some cases the ends of justice would be
defeated by such a practice. A general regulation of the
Department of Justice that all district attorneys should in all
cases refuse to consent to any postponement of a trial, should
never admit a fact, should always move for the infliction of
the extreme penalty of the law, would hardly be upheld. The
statute must have some limit; and one proper limitation, as it
seems to me, is to require, for the validity of any direction
by the Attorney General in criminal cases, that it be made in a
particular case, and with reference to the duties of the
district attorney in that particular case.
If this decision is to be followed, there is no authority under
present statutes for the Attorney General to operate a school for
district attorneys.
The point of order is sustained.
Civil Rights Commission
Sec. 18.2 A paragraph in a general appropriation bill containing funds
for the Civil Rights Commission for fiscal 1979 was conceded to be
unauthorized in violation of Rule XXI clause 2 where the law
extending the existence and authorizations for the Commission
beyond fiscal 1978 had not yet been enacted (42 USC Sec. 1975c,
1975e).
On June 14, 1978,(9) during consideration in the
Committee of the Whole of the Departments of State, Justice, Commerce,
and Judiciary appropriation bill (H.R. 12934), a point of order was
sustained against the following provision:
---------------------------------------------------------------------------
9. 124 Cong. Rec. 17629, 95th Cong. 2d Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
Commission on Civil Rights
salaries and expenses
For expenses necessary for the Commission on Civil Rights,
including hire of passenger motor vehicles, $10,752,000.
Mr. [John H.] Rousselot [of California]: Mr. Chairman, on the
basis of
[[Page 5553]]
clause 2, rule XXI, I make a point of order that this is an
unauthorized appropriation and has not been authorized by law.
Mr. [John M.] Slack [of West Virginia]: I concede the point of
order, Mr. Chairman.
The Chairman: (10) the point of order is conceded,
sustained, and the paragraph is stricken.
---------------------------------------------------------------------------
10. George E. Brown, Jr. (Calif.).
---------------------------------------------------------------------------
Parliamentarian's Note: The authorization extension had not passed
either House as of June 14 (see Public Law No. 95-444).
Department of Justice--Annual Authorizations Required
Sec. 18.3 Appropriations in a general appropriation bill for fiscal
1979 for the Department of Justice and its related agencies were
conceded to be unauthorized (where the authorization bill had been
reported in the House but not enacted into law) and were ruled out
in violation of Rule XXI clause 2.
Pursuant to law (Public Law No. 94-503, Sec. 204), all
appropriations for the Department of Justice and related agencies and
bureaus are deemed unauthorized for fiscal 1979 and subsequent fiscal
years unless specifically authorized for each fiscal year, and the
creation of any subdivision in that department or the authorization of
any activity therein, absent language specifically authorizing
appropriations for a fiscal year, is not deemed sufficient
authorization. Accordingly, on June 14, 1978,(11) during
consideration of H.R. 12934 (Departments of State, Justice, Commerce,
and the Judiciary appropriations for fiscal 1979), points of order were
made and conceded, as follows:
---------------------------------------------------------------------------
11. 124 Cong. Rec. 17622-24, 95th Cong. 2d Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
For expenses necessary for the administration of the
Department of Justice, including hire of passenger motor
vehicles; and miscellaneous and emergency expenses authorized
or approved by the Attorney General or the Assistant Attorney
General for Administration; $28,500,000, of which $4,837,000 is
for the United States Parole Commission and $2,000,000 is for
the Federal justice research program, the latter amount to
remain available until expended.
Mr. [John H.] Rousselot [of California]: Mr. Chairman, on the
basis of clause 2, rule XXI, I make the point of order that this is
an unauthorized appropriation and has not been authorized by law.
Mr. [John M.] Slack [of West Virginia]: Mr. Chairman, I concede
the point of order.
The Chairman: (12) the point of order is conceded
and sustained. The paragraph is stricken.
---------------------------------------------------------------------------
12. George E. Brown, Jr. (Calif.).
---------------------------------------------------------------------------
[[Page 5554]]
The Clerk will read.
The Clerk read as follows:
Legal Activities
salaries and expenses, general legal activities (including
transfer of funds)
For expenses necessary for the legal activities of the
Department of Justice, not otherwise provided for, including
miscellaneous and emergency expenses authorized or approved by
the Attorney General or the Assistant Attorney General for
Administration. . . .
Mr. Rousselot: Mr. Chairman, on the basis of clause 2, rule
XXI, I make the point of order that this is an unauthorized
appropriation and has not been authorized by law.
Mr. Slack: I concede the point of order, Mr. Chairman.
The Chairman: The point of order is conceded and sustained The
paragraph is stricken. . . .
The Clerk read as follows:
salaries and expenses, antitrust division
For expenses necessary for the enforcement of antitrust,
consumer protection and kindred laws. . . .
Mr. Rousselot: Mr. Chairman, on the basis of clause 2, rule
XXI, I make the point of order that this is an unauthorized
appropriation and has not been authorized by law.
Mr. Slack: Mr. Chairman, I concede the point of order.
The Chairman: The point of order is conceded and sustained. The
paragraph is stricken. . . .
The Clerk read as follows:
For necessary expenses of the Community Relations Service.
. . .
Mr. Rousselot: Mr. Chairman, I make a point of order on the
basis of clause 2, rule XXI, that this is an unauthorized
appropriation and has not been authorized by law.
Mr. Slack: Mr. Chairman, I concede the point of order.
The Chairman: The point of order is conceded and sustained. The
paragraph is stricken.
CHAPTER 26
Unauthorized Appropriations; Legislation on Appropriation Bills
B. APPROPRIATIONS FOR UNAUTHORIZED PURPOSES
Sec. 19. Public Works
Public Buildings Not Approved by Public Works Committee
Sec. 19.1 Language in a general appropriation bill providing an
additional amount for the construction of public buildings not yet
authorized pursuant to law was held not to be in order.
On June 7, 1961,(13) during consideration in the
Committee of the Whole of the independent offices appropriation bill
(H.R. 7445), a point of order was raised, as follows:
---------------------------------------------------------------------------
13. 107 Cong. Rec. 9678, 87th Cong. 1st Sess.
---------------------------------------------------------------------------
Mr. [H. R.] Gross [of Iowa]: Mr. Chairman, a point of order.
The Chairman: (14) the gentleman will state it.
---------------------------------------------------------------------------
14. Richard Bolling (Mo.).
---------------------------------------------------------------------------
Mr. Gross: Mr. Chairman, I make a point of order against the
language on page 19 beginning with line 9 and run
[[Page 5555]]
ning through line 16, reading as follows:
Sites and Expenses, Public Buildings Projects
For an additional amount for expenses necessary in
connection with the construction of public buildings projects
not otherwise provided for, as specified under this head in the
Independent Offices Appropriation Acts of 1959, 1960 and 1961,
including preliminary planning of public buildings projects by
contract or otherwise, $25,000,000, to remain available until
expended.
I base the point of order on the ground that the appropriation
herein called for is not justified, is not authorized; and I
respectfully call the attention of the Chair to the language in the
report on page 10 under the title ``Sites and expenses, public
buildings projects.''
This amount is needed for financing the site and expense
costs of projects that are now pending or will be submitted to
the Public Works Committees this year.
The Chairman: Does the gentleman from Texas desire to be heard
on the point of order?
Mr. [Albert] Thomas [of Texas]: Mr. Chairman, the point of
order is good; it has not been authorized. But is it needed. They
testified to that effect. It has not been authorized, however, and
on that basis it is subject to a point of order.
The Chairman: The point of order is sustained.
Sec. 19.2 Appropriations for certain federal office buildings in the
District of Columbia were ruled out as unauthorized where not
approved by the Public Works Committees of the House and Senate as
required by the Public Buildings Act of 1959 [73 Stat. 479].
On Apr. 19, 1960,(15) the Committee of the Whole was
considering H.R. 11776, a bill making appropriations for sundry
independent executive bureaus. At one point the Clerk read as follows,
and proceedings ensued as indicated below:
---------------------------------------------------------------------------
15. 106 Cong. Rec. 8230, 86th Cong. 2d Sess.
---------------------------------------------------------------------------
Construction, Public Buildings Projects
For expenses, not otherwise provided for, necessary to
construct public buildings projects and alter public buildings by
extension or conversion where the estimated cost for a project is
in excess of $200,000 pursuant to the Public Buildings Act of 1959
(73 Stat. 479), including equipment for such buildings,
$144,836,000, to remain available until expended: Provided, That
the foregoing amount shall be available for public buildings
projects at locations and at maximum construction improvement costs
(excluding funds for sites and expenses) as follows:
Post office and Federal office building, Camden, Arkansas,
$633,250; . . .
Federal Office Building Numbered Nine, District of Columbia,
$20,031,100;
Federal Office Building Numbered Ten, District of Columbia,
$38,326,500; and
[[Page 5556]]
United States Court of Claims and Court of Customs and Patent
Appeals building, $6,375,000: Provided further, That the foregoing
limits of costs may be exceeded to the extent that savings are
effected in other projects, but by not to exceed 5 per centum.
Mr. [H. R.] Gross [of Iowa]: Mr. Chairman, I make the point of
order against the language beginning with line 9 on page 16 of the
bill and running through line 14 to and including the
``$6,375,000'' that it is not authorized by law.
The Chairman: (16) Does the gentleman from Texas
care to be heard on the point of order?
---------------------------------------------------------------------------
16. Frank N. Ikard (Tex.).
---------------------------------------------------------------------------
Mr. [Albert] Thomas [of Texas]: Mr. Chairman, there is no
question about it. The point of order is good.
The Chairman: The Chair sustains the point of order.
Post Office Construction
Sec. 19.3 To an appropriation bill providing funds for the Post Office
Department and transfer of not to exceed a certain sum to the
General Services Administration for repair, preservation,
improvement and equipment of federally owned property used for
postal purposes, an amendment providing funds for construction of a
post office annex, approved under the Lease-Purchase Act, but for
which there had been no legislation authorizing appropriations, was
held to be unauthorized.
On Mar. 4, 1958, (17) the Committee of the Whole was
considering H.R. 11085, a bill making appropriations for the U.S.
Treasury and the Post Office. During consideration, a point of order
was sustained against an amendment as indicated below:
---------------------------------------------------------------------------
17. 104 Cong. Rec. 3420, 85th Cong. 2d Sess.
---------------------------------------------------------------------------
Sec. 204. Not exceeding $22 million of appropriations in this
title shall be available for payment to the General Services
Administration of such additional sums as may be necessary for the
repair, alteration, preservation, renovation, improvement, and
equipment of federally owned property used for postal purposes, of
which not to exceed $20 million shall be available for improving
lighting, color, and ventilation for the specialized conditions in
space occupied for postal purposes.
Mr. [Byron G.] Rogers of Colorado: Mr. Chairman, I offer an
amendment.
The Clerk read as follows:
Amendment offered by Mr. Rogers of Colorado: Page 14, after
line 6, add:
``Sec. 205. There is appropriated the sum of $8,209,000 for
the construction of a terminal annex at Denver, Colo.''
Mr. [J. Vaughan] Gary [of Virginia]: Mr. Chairman, I reserve a
point of order against the amendment.
The Chairman: (18) Does the gentleman from Colorado
desire to be heard on the point of order?
---------------------------------------------------------------------------
18. Brooks Hays (Ark.).
---------------------------------------------------------------------------
[[Page 5557]]
Mr. Rogers of Colorado: Yes. I contend that the amendment is in
order as provided by Public Law 519 dated July 22, 1954, which is
commonly referred to as the lease-purchase law. . . .
Mr. Gary: Mr. Chairman, in the first place, the law cited by
the gentleman from Colorado expired on June 30 last year. That is
the lease-purchase law. In the second place, the lease-purchase law
did not authorize any appropriations whatever. It merely authorized
the construction of projects under a lease-purchase contract. In
the third place, even if there were an authorization of
construction, that comes under General Services Administration and
the General Services Administration appropriation is not before
this committee. We are considering the appropriation for the Post
Office Department. There is absolutely no authorization whatever
for the project in question. . . .
The Chairman: The Chair is ready to rule.
The Chair is grateful to both the gentleman from Colorado and
the gentleman from Virginia for their presentation. The Chair
thinks reference to the legislation referred to by the gentleman
from Colorado would develop the fact that the lease-purchase
procedure is a distinctive type of construction procedure that does
not yield to ordinary appropriation treatment. Consequently, the
argument advanced by the gentleman from Virginia [Mr. Gary] appeals
to the Chair. For the reason that no prior legislation authorizing
this appropriation has been enacted by the Congress, the Chair
sustains the point of order.
Airport Services
Sec. 19.4 An appropriation for necessary advisory services to state and
other public and private agencies with regard to construction and
operation of airports and landing areas was held to be authorized
by law.
On Mar. 16, 1945, (19) the Committee of the Whole was
considering H.R. 2603, an appropriation bill for the Federal Loan
Agency and the Departments of State, Justice, Commerce, and the
Judiciary. A point of order was overruled against the following
paragraph:
---------------------------------------------------------------------------
19. 91 Cong. Rec. 2373, 79th Cong. 1st Sess.
---------------------------------------------------------------------------
Airport advisory service: For necessary expenses in furnishing
advisory services to State and other public and private agencies in
connection with the construction and operation of airports and
landing areas, including personal services in the District of
Columbia and elsewhere, and the operation, repair, and maintenance
of passenger automobiles, $300,000.
Mr. [Edward H.] Rees of Kansas: Mr. Chairman, I make a point of
order against the words ``and private agencies'' on lines 6 and 7,
page 60, on the ground that it is legislation on an appropriation
bill and is not authorized by law. . . .
Mr. [Louis C.] Rabaut [of Michigan]: Mr. Chairman, that is
authorized under the provisions of Forty-ninth United States Code,
section 451, under authority to foster and promote the development
of aviation. . . .
[[Page 5558]]
The Chairman: (20) The gentleman from Michigan, the
chairman of the subcommittee, called to the attention of the Chair
certain language which the Chair desires to read:
---------------------------------------------------------------------------
20. Wilbur D. Mills (Ark.).
---------------------------------------------------------------------------
The Administrator of Civil Aeronautics is empowered and
directed to encourage and foster the development of civil
aeronautics and air commerce in the United States and abroad,
encourage the establishment of civil airways, landing areas,
and other air navigation facilities. The Administrator shall
cooperate with the Board in the administration and enforcement
of this chapter.
It seems to the Chair that the language referred to is at least
broad enough to authorize the appropriation objected to by the
gentleman from Kansas.
The Chair overrules the point of order.
Alaskan Highway
Sec. 19.5 An appropriation for construction of a connecting highway
between the United States and Alaska was unauthorized by law and
not a continuation of a public work in progress.
On Mar. 10, 1942, (1) the Committee of the Whole was
considering H.R. 6736, a War Department civil functions appropriation.
At one point the Clerk read as follows, and proceedings ensued as
indicated below:
---------------------------------------------------------------------------
1. 88 Cong. Rec. 2223, 2224, 77th Cong. 2d Sess.
---------------------------------------------------------------------------
Amendment offered by Mr. Case of South Dakota: On page 4, after
line 10, insert ``Alaskan Highway: For prosecuting the construction
of a connecting highway from the States to and into Alaska,
$5,000,000.''
Mr. [John] Taber [of New York]: Mr. Chairman, I reserve a point
of order against the amendment. . . .
Mr. [Francis H.] Case of South Dakota: In the first place, I
doubt that it requires an authorization for the Corps of Engineers
to carry on this work. The paragraph immediately preceding this was
a paragraph dealing with the Signal Corps, for which we made an
appropriation to carry on the Alaska Communications System.
Even if this project were one which required authorization by
law the rules of the House provide that where a project is under
construction and an appropriation is made for continuing
construction, the appropriation is in order and is not subject to a
point of order.
I call the Chair's attention to an Associated Press dispatch
that appeared throughout the country in the papers of March 7, in
which this statement was made:
An advance crew of American engineers is at Dawson Creek,
and dozens of freight cars carrying construction equipment are
expected to pass through Alberta in the next few weeks. . . .
The Chairman: (2) The Chair is ready to rule.
---------------------------------------------------------------------------
2. Alfred L. Bulwinkle (N.C.).
---------------------------------------------------------------------------
The mere fact that press reports show that certain groups are
in Alaska
[[Page 5559]]
does not constitute in the mind of the Chair that there is really a
working performance going on in this project at all.
The Chair, therefore, sustains the point of order.
Appropriation Language Limiting Expenditures to Authorized Projects
Sec. 19.6 A point of order was held not to lie against an amendment
proposing to increase a lump-sum appropriation for river and harbor
projects where language in the bill limited use of the lump-sum
appropriation to ``projects authorized by law.''
On June 19, 1958, (3) during consideration in the
Committee of the Whole of H.R. 12858, a point of order against an
amendment to the bill was overruled as indicated below:
---------------------------------------------------------------------------
3. 104 Cong. Rec. 11766, 11767, 85th Cong. 2d Sess. See also 105 Cong.
Rec. 10061, 86th Cong. 1st Sess., June 5, 1959.
---------------------------------------------------------------------------
Amendment offered by Mr. [Frank J.] Becker [of New York]: On
page 4, line 8, after ``expended'', strike out ``$577,085,500'' and
insert ``$578,455,- 500.'' . . .
Mr. [John] Taber [of New York]: Mr. Chairman, I make the point
of order against this amendment on the ground that it is
legislation on an appropriation bill. It appears to be for three
projects which have not been authorized by law although a bill did
pass the House. Frankly, I do not like the situation where I am
obliged to make this point of order, but I feel that I would not be
conscientious in the performance of my duty if I did not do so.
The Chairman: (4) Does the gentleman from New York
[Mr. Becker] desire to be heard on the point of order?
---------------------------------------------------------------------------
4. Wilbur D. Mills (Ark.).
---------------------------------------------------------------------------
Mr. Becker: Yes, Mr. Chairman. My understanding in trying to
evaluate the various points of order in the last 2 days is that it
is possible to increase the sum, that is, it is possible to
increase the total sum of the appropriation if I do not include any
specific authorization. I have not offered any authorization here
or legislation on this bill. I am merely increasing the amount and
the total sum of the appropriation in order that there will be a
sum of money and in order that these three projects can be
initiated. I hope the chairman will overrule the point of order. .
. .
The Chairman: The gentleman from New York [Mr. Becker] offers
an amendment, on page 4, line 8, to which the gentleman from New
York [Mr. Taber] raises a point of order.
The Chair has had an opportunity to examine the amendment and
to review the ruling of the Chair on yesterday with respect to the
language in the bill to which these figures on line 8, page 4,
apply. The Chair will point out, as did the Chair on yesterday,
that the language to which these figures apply is very specific in
that the moneys are to be spent on projects authorized by law. So
it would appear to the Chair
[[Page 5560]]
that the amendment offered by the gentleman from New York [Mr.
Becker] raising the amount of the appropriation would be in order.
The Chair therefore overrules the point of order.
Parliamentarian's Note: See also the discussion of related rulings
in Sec. Sec. 7.10 et seq., supra; and see Ch. 25, Sec. 2.17, volume 7,
supra.
Rivers and Harbors
Sec. 19.7 An appropriation for an ``experimental cut'' in connection
with a survey under the Rivers and Harbors Act was held not to be
authorized by law inasmuch as conditions set forth in the act had
not been met.
On June 15, 1937,(5) the Committee of the Whole was
considering H.R. 7493, an appropriation for civil functions of the War
Department. At one point the Clerk read as follows, and proceedings
ensued as indicated below:
---------------------------------------------------------------------------
5. 81 Cong. Rec. 5787, 5788, 75th Cong. 1st Sess.
---------------------------------------------------------------------------
Amendment offered by Mr. Peterson of Florida: Page 7, after
line 16, add a new paragraph as follows:
``For experimental cut, Big Pass-Clearwater, Fla., in
connection with survey authorized by the Rivers and Harbors Act
approved August 30, 1935, $21,000: Provided, That local interest
shall contribute not less than $10,000 toward such project.''. . .
.
Mr. [J. Buell] Snyder of Pennsylvania: . . . Mr. Chairman, the
point of order is that the matter covered by the proposed amendment
is not authorized by law.
The Chairman: (6) Does the gentleman from Florida
desire to be heard on the point of order?
---------------------------------------------------------------------------
6. John W. McCormack (Mass.).
---------------------------------------------------------------------------
Mr. [J. Hardin] Peterson of Florida: Mr. Chairman, the Rivers
and Harbors Act of 1935 authorized a survey. This provides an
appropriation for the purpose of carrying out that survey. . . .
The Chairman: The Chair is ready to rule:
Section 3 of the act of August 30, 1935, gives to the Secretary
of War--
Authority to cause preliminary examinations and surveys to
be made at the following-named localities, the cost thereof to
be paid from appropriations heretofore or hereafter made for
such purposes: Provided, That no further examination, survey
project, or estimate for new works other than those designated
in this or some prior act or joint resolution shall be made:
Provided further, That after the regular or formal reports made
as required by law on any examination, survey, project, or work
under way or proposed or submitted no supplemental or
additional report or estimate shall be made unless authorized
by law. . . .
The provision (authorizes) preliminary examinations and
surveys, and specifically (provides):
That the Government shall not be deemed to have entered
upon any project for the improvement of any waterway or harbor
mentioned in this act until the project for the proposed work
shall have been adopted by law.
[[Page 5561]]
No law having been cited by the gentleman from Florida showing
that Congress has adopted any program as the result of the
recommendations of the Secretary of War by reason of the authority
vested in the Secretary and contained in the section to which the
Chair has referred, the Chair sustains the point of order.
Bureau of Reclamation
Sec. 19.8 To a paragraph of an appropriation bill making appropriations
to the Army Corps of Engineers for flood control, an amendment
making part of such appropriation available for studying specified
work of the Bureau of Reclamation was held to be unauthorized as
well as not germane to the paragraph to which offered.
On June 13, 1951,(7) during consideration in the
Committee of the Whole of an appropriation bill (H.R. 4386), a point of
order was raised against the following amendment:
---------------------------------------------------------------------------
7. 97 Cong. Rec. 6522, 6523, 82d Cong. 1st Sess.
---------------------------------------------------------------------------
Mr. [Thomas H.] Werdel [of California]: Mr. Chairman, I offer
an amendment.
The Clerk read as follows:
Amendment offered by Mr. Werdel: On page 7, line 3, strike
out the colon and insert ``of which $15,000 shall be utilized
for the study of the specifications used by the Bureau of
Reclamation in connection with controls for laterals and
sublaterals to distribute water from the Friant Kern Canal, and
to estimate the cost of correcting specification errors.''
Mr. [Louis C.] Rabaut [of Michigan]: Mr. Chairman, I make a
point of order against the amendment offered by the gentleman from
California, which I will reserve so that the gentleman may speak on
his amendment. . . .
May I be heard, Mr. Chairman? I feel constrained to speak to
the point of order.
The Chairman: (8) The Chair will hear the gentleman
from Michigan.
---------------------------------------------------------------------------
8. Porter Hardy, Jr. (Va.).
---------------------------------------------------------------------------
Mr. Rabaut: Mr. Chairman, this deals with the Reclamation
Department of the Government and not with the Corps of Engineers It
involves a project in reclamation, and we are not talking about
reclamation projects here at all.
I insist on the point of order. It is legislation on an
appropriation bill. . . .
The Chairman: The Chair is ready to rule.
The Chair has examined the amendment. As far as any argument
which he has heard is concerned, there is no reference to any
authority which exists in law for this study and there is nothing
in this bill on this subject.
Therefore the Chair sustains the point of order.
Tennessee-Tombigbee Waterway
Sec. 19.9 An appropriation for the Tennessee-Tombigbee inland
[[Page 5562]]
waterway was authorized by law.
On Mar. 24, 1949,(9) the Committee of the Whole was
considering H.R. 3734, a Department of the Army civil functions
appropriation. A point of order was raised against the following
amendment:
---------------------------------------------------------------------------
9. 95 Cong. Rec. 3141, 81st Cong. 1st Sess.
---------------------------------------------------------------------------
Amendment offered by Mr. [John E.] Rankin [of Mississippi]:
Page 8, after line 8, insert the following new paragraph:
``Tennessee-Tombigbee inland waterway: For the prosecution of
the works of improvement with respect to the Tombigbee and
Tennessee Rivers heretofore authorized by law (Public Law 525, 79th
Cong.) $3,000,000.''
Mr. [Clarence] Cannon [of Missouri]: Mr. Chairman, a point of
order.
The Chairman: (10) The gentleman will state it.
---------------------------------------------------------------------------
10. Jere Cooper (Tenn.).
---------------------------------------------------------------------------
Mr. Cannon: I make the point of order, Mr. Chairman, that the
amendment is not germane at this point in the bill, and therefore
not in order.
The Chairman: Does the gentleman from Mississippi desire to be
heard?
Mr. Rankin: Yes, Mr. Chairman, it is germane to this part of
the bill and is in order.
This is the part of the bill that covers projects of this kind.
I have prepared this amendment to carry out the mandate of Congress
2 years ago and the recommendation of the Army engineers. This
amendment merely introduces a new section after line 8 on page 8
and provides for funds to begin construction of this great inland
waterway, this missing link in our great internal waterway system.
I submit that it is in order and properly presented at this
time.
Mr. [John] Taber [of New York]: Mr. Chairman, a further point
of order.
The Chairman: The gentleman will state it.
Mr. Taber: The provision for rivers and harbors is entirely
included in the paragraph beginning at line 10 on page 5 of the
bill and ending on line 8, page 8, and all amendments relating to
additional rivers and harbors projects would have to be offered
within that paragraph. This goes outside of that and is not germane
at this point or elsewhere in the bill.
Mr. Rankin: Mr. Chairman, that is where it is offered.
The Chairman: Can the gentleman from New York advise the Chair
as to a more appropriate place that he thinks the amendment should
be offered to this bill?
Mr. Taber: I think it must be offered as an amendment to the
figure $176,000,000 on page 6, line 22, where all provisions for
rivers and harbors are included.
The Chairman: The Chair is prepared to rule. The Chair invites
attention to the fact that the paragraph of the bill now under
consideration relates to rivers and harbors, maintenance and
improvements of existing river and harbor works. The gentleman from
Mississippi offers an amendment which has been reported by the
Clerk which seeks to add a new paragraph under the same heading of
rivers and
[[Page 5563]]
harbors, maintenance and improvements of existing river and harbor
work. The Chair invites attention to the fact that the pending
amendment relates to the prosecution of work on improvements with
respect to certain rivers as heretofore authorized by law. The
Chair is constrained to believe that the amendment is in order as a
new paragraph and, therefore, overrules the point of order.
Diversion Dam, Missouri Basin
Sec. 19.10 An appropriation for the diversion dam, in the Missouri-
Souris division of the Missouri River Basin project, was authorized
by law.
On Mar. 30, 1949,(11) the Committee of the Whole was
considering H.R. 3838, an Interior Department appropriation. At one
point the Clerk read as follows, and proceedings ensued as indicated
below:
---------------------------------------------------------------------------
11. 95 Cong. Rec. 3525, 3526, 81st Cong. 1st Sess.
---------------------------------------------------------------------------
Amendment offered by Mr. [William] Lemke [of North Dakota]:
Page 47, line 7, after the word ``Congress'', insert a colon and
add the following: ``Provided, That not less than $1,500,000 of the
sums hereby appropriated under this head shall be reserved for the
diversion dam, Missouri-Souris division, Missouri River Basin
project.''
Mr. [Henry M.] Jackson of Washington: Mr. Chairman, I make the
point of order that this particular amendment is legislation on an
appropriation bill. . . .
The Chairman: (12) Does the gentleman from North
Dakota [Mr. Burdick] desire to be heard on the point of order?
---------------------------------------------------------------------------
12. Jere Cooper (Tenn.).
---------------------------------------------------------------------------
Mr. [Usher L.] Burdick: Yes, Mr. Chairman. This project was
authorized in the 1944 Flood Control Act with an appropriation of
$200,000,000 for the dams and $200,000,000 for diversion. It is
authorized, and there was an appropriation on that authorization.
The Chairman: Can the gentleman cite the law relating to the
project in question?
Mr. Lemke: Public Law 534. . . .
Mr. Burdick: Mr. Chairman, the matter before us now came into
this Congress in a peculiar way. Document 475 came before this
Congress authorizing the building of the Garrison Dam by the Army
engineers. Senate Document 191 came in authorizing diversion of the
waters, to which this amendment alludes. Those two documents, with
the consent of the engineers on both sides, resulted in the law
which we passed, which was known as Document No. 247. On that
document the law was based. That program was authorized. . . .
The Chairman: The Chair is prepared to rule.
In light of the information given the Chair, the Chair would
invite attention to section 9 of the Flood Control Act of 1944. It
would appear from the best examination the Chair has been able to
make that the project mentioned in the pending amendment is
authorized under that provision. Therefore, the Chair overrules the
point of order.
[[Page 5564]]
Transmission Lines, Bonneville Power
Sec. 19.11 An appropriation for construction of transmission lines from
Grand Coulee Dam to Spokane was held authorized by language in the
Rivers and Harbors Act of 1935 under ``incidental works necessary
to such project.''
On May 13, 1941,(13) during consideration in the
Committee of the Whole of H.R. 4590, an Interior Department
appropriation, a point of order against language in the bill was
overruled. The proceedings were as follows:
---------------------------------------------------------------------------
13. 87 Cong. Rec. 4004, 77th Cong. 1st Sess.
---------------------------------------------------------------------------
Bonneville Power Administration
For all expenses necessary to enable the Bonneville Power
Administrator to exercise and perform the powers and duties imposed
upon him by the act ``to authorize the completion, maintenance, and
operation of the Bonneville project, for navigation, and for other
purposes,'' approved August 20, 1937 [50 Stat. 731), including
personal services, travel expenses, purchase and exchange of
equipment, printing and binding, and purchase and exchange
maintenance, and operation of motor-propelled passenger-carrying
vehicles, to remain available until expended, $22,858,500, of which
amount not exceeding $4,000,000 shall be immediately available, not
exceeding $15,000 shall be available for personal services in the
District of Columbia and $885,600 shall be available for expenses
of marketing and transmission facilities, and administrative costs
in connection therewith: Provided, That $2,000,000 of the foregoing
amount shall be available only for the construction of additional
transmission lines from the Grand Coulee Dam to Spokane, Wash.
Mr. [Robert F.] Rich [of Pennsylvania]: Mr. Chairman, I make a
point of order against the language on page 13, beginning in line
25, ``that $2,000,000 of the foregoing amount shall be available
only for the construction of additional transmission lines from the
Grand Coulee Dam to Spokane, Wash.,'' that it is not authorized by
law. . . .
The Chairman: (14) The gentleman from Washington is
recognized on the point of order.
---------------------------------------------------------------------------
14. Jere Cooper (Tenn.).
---------------------------------------------------------------------------
Mr. [Charles H.] Leavy [of Washington]: Mr. Chairman, the basic
act providing for the construction of Grand Coulee Dam provides in
this language:
For the purpose of controlling floods, improving
navigation, regulating the flow of streams of the United
States, providing for storage, for the delivering of stored
waters thereof, for the reclamation of the public lands and
Indian reservations, and other beneficial uses, and for the
generation of electrical energy as a means of financially
aiding and assisting. . . .
Then omitting a portion of the language--
The President, acting through such agents as he may
designate, is hereby authorized to construct, operate, and
maintain dams, structures, canals, and incidental works nec
[[Page 5565]]
essary to such projects, and in connection therewith to make
and enter into any and all necessary contracts, including among
other things, structures, canals, and incidental works
necessary in connection therewith.
In August 1940 the President by Executive order provided that
the power generated at Grand Coulee should be distributed by the
Administrator for Bonneville, and the responsibility for marketing
that power was placed in the Bonneville Administration.
If by law we can appropriate money for this activity in its
entirety, and if we have that responsibility, then certainly by law
we can appropriate money for a particular phase of such activity
and so designate that appropriation for a particular purpose.
I submit, Mr. Chairman, that the point of order should be
overruled.
Mr. [John] Taber [of New York]: Mr. Chairman, may I be heard on
the point of order?
The Chairman: The Chair will be pleased to hear the gentleman,
but the Chair would first like to inquire of the gentleman from
Washington where he read the Executive order of the President? Is
that in the hearings?
Mr. Leavy: That is in the hearings on page 159, the first
paragraph.
The Chairman: The Chair would be pleased to hear the gentleman
from New York [Mr. Taber] on the point of order.
Mr. Taber: Mr. Chairman, I just want to call attention to the
fact that not one single word of the language of the authorization
act that was read authorizes the construction of a power line. It
authorizes canals, approaches, and incidental structures, but not
one single word authorizes the construction of a power dam.
The Chairman: The Chair is prepared to rule. The gentleman from
Pennsylvania [Mr. Rich] makes a point of order against the language
appearing in line 25, page 13, extending through line 3 on page 14
of the pending bill, on the ground that the appropriation there
included is not authorized by law.
The Chair has examined with some degree of care the act to
which reference was made by the gentleman from Washington [Mr
Leavy], in his discussion on the point of order, which is the
Rivers and Harbors Act approved August 30, 1935. The gentleman from
Washington very kindly assisted the Chair in citing the language of
this act with respect to the Grand Coulee Dam. Without repeating
the language quoted by the gentleman from Washington the Chair
desires to invite especial attention to the following provision
included in the act, which is a part of the language quoted by the
gentleman from Washington:
And incidental works necessary to such projects.
The Chair is of the opinion that that language, taken with the
entire act and the clear purpose of the act as stated, would form a
sufficient basis to sustain the appropriation included in this item
of the pending bill. Therefore the Chair is of the opinion that
this item is authorized by existing law, and the Chair therefore is
constrained to overrule the point of order.
Tennessee Valley Authority Act
Sec. 19.12 An appropriation for the construction of a dam on the lower
Tennessee River
[[Page 5566]]
was held authorized by the Tennessee Valley Authority Act.
On May 8, 1936,(15) the Committee of the Whole was
considering H.R. 12624, a deficiency appropriation bill.
---------------------------------------------------------------------------
15. 80 Cong. Rec. 6964, 74th Cong. 2d Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
Tennessee Valley Authority
For the purpose of carrying out the provisions of the
entitled ``The Tennessee Valley Authority Act of 1933'',
approved May 18, 1933 (U.S.C., title 16, ch. 12a), as amended
by the act approved August 31, 1935 (49 Stat. 1075-1081),
including the continued construction of Norris Dam, Wheeler
Dam, Pickwick Landing Dam, Guntersville Dam, and Chickamauga
Dam (hereafter to be known as McReynolds Dam), and the
beginning of construction on a dam on the Hiwassee River, a
tributary of the Tennessee River, at or near Fowler Bend, and
the continuation of preliminary investigations as to the
appropriate location and type of a dam on the lower Tennessee
River, and the acquisition of necessary land, the clearing of
such land, relocation of highways, and the construction or
purchase of transmission lines and other facilities, and all
other necessary works authorized by such acts, and for printing
and binding, law books, books of reference, newspapers,
periodicals, purchase, maintenance, and operation of passenger-
carrying vehicles, rents in the District of Columbia and
elsewhere, and all necessary salaries and expenses connected
with the organization, operation, and investigations of the
Tennessee Valley Authority, fiscal year 1937, $39,900,000:
Provided, That this appropriation and any unexpended balance on
June 30, 1936, in the ``Tennessee Valley Authority Fund,
1936'', and the receipts of the Tennessee Valley Authority from
all sources during the fiscal year 1937 (except as limited by
sec. 26 of the Tennessee Valley Authority Act of 1933, as
amended), shall be covered into and accounted for as one fund
to be known as the ``Tennessee Valley Authority Fund, 1937'',
to remain available until June 30, 1937, and to be available
for the payment of obligations chargeable against the
``Tennessee Valley Authority Fund, 1936.''. . .
Mr. [Herron C.] Pearson [of Tennessee]: Mr. Chairman, I offer
an amendment.
The Clerk read as follows:
Amendment offered by Mr. Pearson: On page 19, line 8, after
the word ``river'', insert the words ``and the beginning of
construction of a dam on the lower Tennessee River.''
[Mr. John Taber, of New York, having reserved a point of order
(16) against the amendment, the following exchange
occurred: (17)]
---------------------------------------------------------------------------
16. Id. at p. 6968.
17. Id. at p. 6969.
---------------------------------------------------------------------------
The Chairman: (18) oes the gentleman from New York
insist upon his point of order?
---------------------------------------------------------------------------
18. John W. McCormack (Mass.).
---------------------------------------------------------------------------
Mr. Taber: I do, Mr. Chairman.
The Chairman: The gentleman will state his point of order.
Mr. Taber: That it is legislation on an appropriation bill and
is an item not authorized by law.
Mr. [Donald H.] McLean [of New Jersey]: Mr. Chairman, may I ask
the gentleman from New York to withhold his point of order?
[[Page 5567]]
The Chairman: The Chair would like to have some information
from the gentleman from Tennessee. Will the gentleman from
Tennessee point out to the Chair any existing law which authorizes
the construction contemplated by the amendment of the gentleman
from Tennessee?
Mr. Pearson: The act which created the Tennessee Valley
Authority provided for the construction of necessary dams on the
river to carry out the projects stated therein--that is, for
national defense and navigation.
Mr. Taber: Mr. Chairman, in order to make my point of order
clear, let me say that this is beyond the scope of the Tennessee
Valley Authority. The word ``necessary'' requires the fact to be
established in ruling upon the language.
It was stated by the Tennessee Valley Authority in the hearings
that this Gilbertville proposition involved a dam and a canal--a
large dam in the Ohio which would cover operation of both the
Cumberland and the Ohio as well as the Tennessee. This Tennessee
Valley Authority relates only to the dams entirely within their
authority covering the Tennessee only. This goes beyond the scope
of the Tennessee Valley Authority.
Mr. [Lister] Hill of Alabama rose.
The Chairman: Does the gentleman from Alabama wish to be heard
on the point of order?
Mr. Hill of Alabama: I do. Mr. Chairman, the amendment is
clearly in order. I call the Chair's attention to section 2,
subsection (j), of Public Law 412, Seventy-fourth Congress, which
is the amendatory act of the Tennessee Valley Authority. . .
I think under the language there can be no question but that
the amendment offered by the gentleman from Tennessee is in order.
The language authorizes construction of any and all dams that may
be needed for flood control and navigation of the Tennessee River.
All dams from Knoxville to the mouth of the river are authorized.
The amendment of the gentleman from Tennessee is undoubtedly in
order.
The Chairman: The Chair is prepared to rule. The amendment of
the gentleman from Tennessee [Mr. Pearson] inserts, after the word
``river'', line 8, page 19, the words ``and the beginning of
construction on a dam on the lower Tennessee River.'' The question
as it appears to the Chair is whether or not there is any existing
law which authorizes the construction of such a dam. The gentleman
from Alabama [Mr. Hill] has referred to Public, No. 412, of the
first session of the Seventy-fourth Congress, which the Chair
reads--and, by the way, it is an amendment to the original
Tennessee Valley Act:
Sec. 2. That subdivision (j) of said section 4 of said act
be, and the same is hereby, amended to read as follows:
``(j) Shall have power to construct such dams and
reservoirs in the Tennessee River and its tributaries, as in
conjunction with Wilson Dam, and Norris, Wheeler, and Pickwick
Landing Dams, now under construction, will provide a 9-foot
channel in the said river and maintain a water supply for the
same from Knoxville to its mouth, and will best serve to
promote navigation on the Tennessee River and its tributaries
and control destructive flood waters in the Tennessee and
Mississippi River drainage basins; and shall have power to
acquire or construct power-houses, power structures,
transmission lines, navigation projects, and incidental
[[Page 5568]]
works in the Tennessee River and its tributaries, and to unite
the various power installations into one or more systems by
transmission lines. The directors of the Authority are hereby
directed to report to Congress their recommendations not later
than April 1, 1936, for the unified development of the
Tennessee River system.''
In the opinion of the Chair, the language just read constitutes
an authorization for the appropriation, and the Chair overrules the
point of order and holds the amendment to be in order.
Public Buildings, Requirement for Committee Approval
Sec. 19.13 Where existing law (40 USC Sec. 606) specifically prohibits
the making of an appropriation to construct or alter any public
building involving more than $500,000 unless approved by
resolutions adopted by House and Senate Committees on Public Works,
an appropriation in a general appropriation bill for public
building construction or renovation not previously authorized by
both committees is in violation of Rule XXI clause 2(a),
notwithstanding the ``work in progress'' exception stated in that
rule and readopted subsequent to enactment of 40 USC Sec. 606,
since the law specifically precludes the appropriation from being
made and the ``work in progress'' exception is only applicable
where there is no authorization in law.
On June 8, 1983,(19) a paragraph of a general
appropriation bill containing funds for the General Services
Administration for construction of new buildings at two sites and
repair of two existing projects was conceded to be unauthorized and was
ruled out on a point of order, since the construction and repair had
not been authorized by the Committee on Public Works and Transportation
as required by statute for projects in excess of $500,000 (40 USC
Sec. 606), and since the public works in progress exception for
unauthorized construction and repair does not countervail a statute
requiring specific authorization before an appropriation can be made.
The proceedings were as follows:
---------------------------------------------------------------------------
19. 129 Cong. Rec. ----, 98th Cong. 1st Sess.
---------------------------------------------------------------------------
Mr. [Robert A.] Young of Missouri: Mr. Chairman, I rise to make
a point of order against four provisions found in title IV in which
the paragraph is entitled ``General Services Administration,
Federal Buildings Fund, Limitations on Availability of Revenue.''
The Chairman: (20) The gentleman from Missouri (Mr.
Young) is recognized on his point of order.
---------------------------------------------------------------------------
20. Gerry E. Studds (Mass.).
---------------------------------------------------------------------------
[[Page 5569]]
The portion of the bill to which the point of order relates is
as follows:
The revenues and collections deposited into the fund
pursuant to section 210(f) of the Federal Property and
Administrative Services Act of 1949, as amended (40 U.S.C.
490(f)), shall be available for necessary expenses of real
property management and related activities not otherwise
provided for, including operation, maintenance, and protection
of federally owned and leased buildings, rental of buildings in
the District of Columbia . . . repair and alteration of
federally owned buildings, including grounds, approaches and
appurtenances, care and safeguarding of sites, maintenance,
preservation, demolition, and equipment . . . preliminary
planning and design of projects by contract or otherwise;
construction of new buildings (including equipment for such
buildings); and payment of principal, interest, taxes, and any
other obligations for public buildings acquired by purchase
contract, in the aggregate amount of $2,023,143,000 of which
(1) not to exceed $132,510,000 shall remain available until
expended for construction of additional projects as authorized
by law at locations and at maximum construction improvement
costs (including funds for sites and expenses) as follows:
New Construction: . . .
Oregon: Portland, Bonneville Power Administration Federal
Building, $67,475,000. . . .
Tennessee: Knoxville, Federal Building, $14,990,000. . . .
Provided further, That funds in the Federal Buildings Fund
for Repairs and Alterations shall, for prospectus projects, be
limited to the amount by project as follows, except each
project may be increased by an amount not to exceed 10 per
centum unless advance approval is obtained from the Committees
on Appropriations of the House and Senate for a greater amount:
. . .
New York: New York, Federal Office Building, 252 Seventh
Avenue, $579,000. . . .
Pennsylvania: Pittsburgh, Post Office, $8,974,000. . . .
Mr. Young of Missouri: Mr. Chairman, specifically, on page 18,
lines 13 through 17 of the bill, H.R. 3191, under consideration,
there appears an appropriation in the amount of $67,475,000 for the
construction of the Bonneville Power Administration Federal
Building in Portland, Oreg., and $14,990,000 for the construction
of a Federal building in Knoxville, Tenn.
In addition, on page 20, lines 18 and 19, there appears an
appropriation in the amount of $579,000 for renovation of the
Federal Office Building at 252 Seventh Avenue in New York, N.Y.; as
well as on page 20, lines 23 and 24, there appears an appropriation
in the amount of $8,974,000 for the repair and alteration of the
post office in Pittsburgh, Pa.
These four appropriations appear to be in violation of rule
XXI, clause 2, of the rules of the House of Representatives. . . .
Mr. Chairman, section 7(a) of the Public Buildings Act of 1959,
as amended, 40 U.S.C. 606, states:
In order to insure the equitable distribution of public
buildings throughout the United States with due regard for the
comparative urgency of need for such buildings, except as
provided in Section 4, no appropriation shall be made to
construct, alter, purchase, or to acquire any building to be
used as a public building which involves a total expenditure in
excess of $500,000 if such construction, alteration, pur
[[Page 5570]]
chase, or acquisition has not been approved by resolutions
adopted by the Committees on Public Works of the Senate and
House of Representatives, respectively.
Mr. Chairman, the law is clear that prior to the appropriation
of funds for the construction or alteration of a public building
which cost shall exceed $500,000, a resolution must be reported by
your House Committee on Public Works and Transportation approving
such authorization. This action has not occurred to date. . . .
Mr. [Edward R.] Roybal [of California]: . . . It is my
understanding that the prospectuses for the construction that is in
the bill have not been approved; is that correct?
Mr. Young of Missouri: Mr. Chairman, they have not been
approved by our subcommittee nor by the full committee.
Mr. Roybal: Since they have not been approved by any of the
committees, I will concede the point of order, Mr. Chairman. . . .
The Chairman: The point of order is conceded and sustained.
CHAPTER 26
Unauthorized Appropriations; Legislation on Appropriation Bills
B. APPROPRIATIONS FOR UNAUTHORIZED PURPOSES
Sec. 20. Other Purposes
Civil Defense
Sec. 20.1 Language in an appropriation bill making funds available for
distribution of radiological instruments and detection devices to
states by loan or grant, for civil defense purposes, was conceded
to be without authorization and was ruled out on a point of order.
On Mar. 20, 1957,(1) during consideration in the
Committee of the Whole of H.R. 6070, a bill making appropriations for
sundry executive bureaus, a point of order was sustained against
language therein, as indicated below:
---------------------------------------------------------------------------
1. 103 Cong. Rec. 4046, 85th Cong. 1st Sess.
---------------------------------------------------------------------------
Emergency supplies and equipment: For expenses necessary for
warehousing and maintenance of reserve stocks of emergency civil-
defense materials as authorized by subsection (h) of section 201 of
the Federal Civil Defense Act of 1950, as amended, and for
distribution of radiological instruments and detection devices to
the several States, and the District of Columbia, and the
Territories and possessions of the United States, by loan or grant,
for training and educational purposes, under such terms and
conditions as the Administrator shall prescribe, $3,300,000.
Mr. [H. R.] Gross [of Iowa]: Mr. Chairman, a point of order.
The Chairman: (2) The gentleman will state it.
---------------------------------------------------------------------------
2. Frank N. Ikard (Tex.).
---------------------------------------------------------------------------
Mr. Gross: Mr. Chairman, I make the point of order against the
following language, beginning in line 19 of page 5, ``for
distribution of radiological instruments and detection devices to
the several States, the District of Columbia, and the Territories
and possessions of the United States, by loan or grant, for
training and educational
[[Page 5571]]
purposes, under such terms and conditions as the Administrator
shall prescribe,'' on the ground that the distribution of such
radiological instruments and detection devices is not authorized in
the organic legislation governing the Federal Civil Defense
Administration, Public Law 920 of the 81st Congress, 2d session, as
amended, and therefore is in violation of rule XXI, paragraph 2, of
the Rules of the House of Representatives.
Mr. [Albert] Thomas [of Texas]: Mr. Chairman, we concede the
point of order.
The Chairman: The point of order is sustained.
Congressional Committee Investigative Staff
Sec. 20.2 An appropriation for employment by the Committee on
Appropriations of 50 qualified persons to check upon progress of
contracts let by the United States and to report upon any waste,
unnecessary additions to cost, or negligence, was not authorized by
law.
On June 16, 1942,(3) the Committee of the Whole was
considering H.R. 7232, a deficiency appropriation. At one point the
Clerk read as follows, and proceedings ensued as indicated below:
---------------------------------------------------------------------------
3. 88 Cong. Rec. 5252, 77th Cong. 2d Sess.
---------------------------------------------------------------------------
Amendment offered by Mr. Voorhis of California: Page 2, line
22, insert:
``For the purpose of enabling the Appropriations Committee to
employ the services of not to exceed 50 highly qualified persons to
maintain a constant check upon the progress of contracts let by the
United States, or any department thereof, and to report upon any
avoidable waste, unnecessary additions to cost, negligence, or
other matters increasing the cost of such contracts to the United
States, $500,000.''
Mr. [Clarence] Cannon of Missouri: Mr. Chairman, I make a point
of order against the amendment that it proposes legislation on an
appropriation bill. . . .
The Chairman: (4) Will the gentleman from California
state to the Chair whether he knows of any legislation authorizing
the appropriations proposed in this amendment?
---------------------------------------------------------------------------
4. Wilbur D. Mills (Ark.).
---------------------------------------------------------------------------
Mr. [H. Jerry] Voorhis of California: No; I do not know of any
legislation authorizing such expenditures.
The Chairman: Unless there is legislation authorizing the
appropriation, the Chair is constrained to sustain the point of
order made by the gentleman from Missouri.
Congressional Parking Lot
Sec. 20.3 To the legislative appropriation bill, an amendment providing
funds for a parking lot for the use of Members and employees of
Congress was ruled out because unauthorized by law.
On May 15, 1952,(5) during consideration in the
Committee of the
[[Page 5572]]
Whole of the legislative appropriation (H.R 7313), a point of order was
raised against the following amendment:
---------------------------------------------------------------------------
5. 98 Cong. Rec. 5283, 82d Cong. 2d Sess.
---------------------------------------------------------------------------
Mr. [Walter F.] Horan [of Washington]: Mr. Chairman, I offer an
amendment.
The Clerk read as follows:
Amendment offered by Mr. Horan:
On page 15, line 9, after the semi-colon and after the word
``and'', insert the following new language: ``for converting
reservations 6-C and 6-E on Canal Street into a parking lot for
the use of Members and employees of Congress.''
On page 15, line 13, strike out the amount ``$218,500''
and insert in lieu thereof the amount ``$69,500.''
Mr. [Christopher C.] McGrath [of New York]: Mr. Chairman, I
make a point of order against the amendment on the ground that it
is legislation on an appropriation bill. I will reserve the point
of order. . . .
Mr. Speaker, I insist on my point of order.
Mr. Horan: Mr. Chairman, I concede the point of order.
The Chairman: (6) The gentleman from Washington
concedes the point of order.
---------------------------------------------------------------------------
6. J. Percy Priest (Tenn.).
---------------------------------------------------------------------------
The point of order is sustained.
Expenses of Presidential Committee on Education
Sec. 20.4 To an appropriation bill, an amendment providing for expenses
of the President's Committee on Education Beyond High School was
admitted to be unauthorized and was ruled out on this basis.
On July 12, 1956, (7) the Committee of the Whole was
considering H.R. 12138, a supplemental appropriation bill. At one point
the Clerk read as follows, and proceedings ensued as indicated below:
---------------------------------------------------------------------------
7. 102 Cong. Rec. 12555, 12556, 84th Cong. 2d Sess.
---------------------------------------------------------------------------
Amendment offered by Mr. [Antonio M.] Fernandez [of New
Mexico]: On page 21, at the end of line 6, add a new paragraph as
follows:
``President's Committee on Education Beyond the High School,
Executive Office of the President''
``For necessary expenses of the President's Committee on
Education Beyond the High School, including services authorized by
section 15 of the act of August 2, 1946 (5 U.S.C. 55a), at rates
not to exceed $50 per diem for individuals; expenses of attendance
at meetings concerned with the purposes of the committee; and
actual transportation expenses and an allowance of not to exceed
$12 per diem in lieu of subsistence while away from their homes or
regular places of business, for persons attending conferences
called by the committee: $300,000.''. . .
Mr. [John E.] Fogarty [of Rhode Island]: Mr. Chairman, I insist
on the point of order that this is not authorized by law and that
the gentleman's
[[Page 5573]]
amendment is legislation on an appropriation bill.
The Chairman: (8) The gentleman from New Mexico [Mr.
Fernandez] has offered an amendment which has been reported by the
Clerk. The gentleman from Rhode Island [Mr. Fogarty] has made the
point of order that this appropriation is not authorized.
---------------------------------------------------------------------------
8. Paul J. Kilday (Tex.).
---------------------------------------------------------------------------
The gentleman from New Mexico in his remarks on his amendment
stated that authorization had not been had, and that it was not
authorized by law.
Therefore the Chair sustains the point of order.
Executive Departments--Travel Expenses
Sec. 20.5 Language in an appropriation bill making all appropriations
for the executive departments and independent establishments
available under Presidential regulations for expenses of
transportation of new appointees and their families from their
places of residence to places of employment outside the continental
United States and back was held unauthorized by law and legislation
on an appropriation bill.
On Feb. 8, 1945,(9) the Committee of the Whole was
considering H.R. 1984, an independent offices appropriation. When the
following paragraph was reached in the reading, a point of order was
raised against it and conceded by the manager of the bill.
---------------------------------------------------------------------------
9. 91 Cong. Rec. 964, 79th Cong. 1st Sess.
---------------------------------------------------------------------------
(c) Appropriations of the executive departments and independent
establishments for the fiscal year 1946 shall be available for
expenses of travel of new appointees and of transportation of their
immediate families in accordance with regulations prescribed by the
President, and expenses of transportation of household goods and
personal effects in accordance with the act of October 10, 1940 (5
U.S.C. 73c-1), from the places of their actual residence at the
time of appointment to places of employment outside continental
United States, and for such expenses on return of civilian officers
and employees from their posts of duty outside continental United
States to the places of their actual residence at time of
assignment to duty outside the United States.
Mr. [Francis H.] Case of South Dakota: Mr. Chairman, I make a
point of order against subparagraph (c) on the ground that it is
legislation on an appropriation bill.
Mr. [Clifton A.] Woodrum of Virginia: Mr. Chairman, I concede
the point of order.
Mr. Case of South Dakota: I may state in this connection that
the only reason I made the point of order to this paragraph and not
to the previous paragraph is because subparagraph (b) is limited to
transfer where permanent duty is involved. Subparagraph (c) is not
so limited. . . .
[[Page 5574]]
The Chairman: (10) The point of order made against
subparagraph (c) on page 65 is sustained.
---------------------------------------------------------------------------
10. William M. Whittington (Miss.).
---------------------------------------------------------------------------
Sec. 20.6 Language in an appropriation bill making funds available for
reimbursements of employees and others, for use by them of their
privately owned automobiles on official business, was conceded to
be unauthorized and was held not in order on an appropriation bill.
On Feb. 8, 1945,(11) during consideration in the
Committee of the Whole of the independent offices appropriation bill
(H.R. 1984), a point of order was raised against the following
provision:
---------------------------------------------------------------------------
11. 91 Cong. Rec. 964, 79th Cong. 1st Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
(d) Appropriations of the executive departments and
independent establishments for the fiscal year 1946 shall be
available for reimbursement, at not to exceed 3 cents per mile
(unless otherwise permitted by law), of employees or others
rendering service to the Government for use by them of
privately owned automobiles for transportation on official
business within the limits of their official stations or places
of service.
Mr. [Richard B.] Wigglesworth [of Massachusetts]: Mr. Chairman,
I make a point of order against the paragraph on the ground that it
is legislation on an appropriation bill.
Mr. [Clifton A.] Woodrum [of Virginia]: Mr. Chairman, I concede
the point of order. It is legislation, but, Mr. Chairman, it was
placed in the bill for the purpose of uniformity. This provision is
carried in practically every appropriation bill.
The Chairman: (12) The point of order . . . is
sustained.
---------------------------------------------------------------------------
12. William M. Whittington (Miss.).
---------------------------------------------------------------------------
Sec. 20.7 Language in an appropriation bill providing for the payment
of actual transportation expenses not to exceed $10 per diem in
lieu of subsistence for the Council of Personnel Administration was
held not to be authorized by existing law.
On Jan. 17, 1940,(13) the Committee of the Whole was
considering H.R. 7922, an independent offices appropriation bill. At
one point the Clerk read as follows, and proceedings ensued as
indicated below:
---------------------------------------------------------------------------
13. 86 Cong. Rec. 439, 76th Cong. 3d Sess.
---------------------------------------------------------------------------
Salaries and expenses: For every expenditure requisite for and
incident to the work of the Council of Personnel Administration,
created by section 7 of Executive Order No. 7916, dated June 24,
1938, including personal services in the District of Columbia;
traveling expenses, including, when specifically directed by the
chairman, not exceeding $800 for expenses of attendance at meetings
concerned with the furtherance of the work of the council; printing
and binding; books of reference and
[[Page 5575]]
periodicals; and the payment of actual transportation expenses and
not to exceed $10 per diem in lieu of subsistence and other
expenses of persons serving while away from their homes, without
other compensation from the United States, in an advisory capacity
to the council, $25,040.
Mr. [Everett M.] Dirksen [of Illinois]: Mr. Chairman, I make
the point of order against the section beginning on line 20, page
15, and ending on line 9, page 16, that it is not authorized by
law.
Mr. [Clifton A.] Woodrum of Virginia: Mr. Chairman, undoubtedly
there is language in this section which changes existing law,
particularly the language on page 16 beginning . . . after the word
``periodicals'' and reading as follows:
and the payment of actual transportation expenses and not to
exceed $10 per diem in lieu of subsistence.
This language unquestionably changes existing law and would
make the paragraph subject to a point of order. I concede the point
of order, Mr. Chairman.
The Chairman: (14) The gentleman from Illinois makes
a point of order against the paragraph, and the gentleman from
Virginia concedes the point of order. The point of order is
therefore sustained.
---------------------------------------------------------------------------
14. Lindsay C. Warren (N.C.).
---------------------------------------------------------------------------
Government Corporation Reserve Fund
Sec. 20.8 A provision of a general appropriation bill requiring a
certain amount of the sum authorized therein for administrative
expenses of a government corporation to be placed in reserve and
used only when and in the amounts required for designated
operations of the corporation in excess of budget estimates
therefor was ruled out when no authorization was cited in support
of the appropriation.
On May 1, 1952,(15) during consideration in the
Committee of the Whole of the Agriculture Department appropriation bill
(H.R. 7314) the following point of order was raised:
---------------------------------------------------------------------------
15. 98 Cong. Rec. 4741, 82d Cong. 2d Sess.
---------------------------------------------------------------------------
Mr. [Abraham J.] Multer [of New York]: Mr. Chairman, may I make
my point of order now?
The Chairman: (16) The gentleman will state it.
---------------------------------------------------------------------------
16. Aime J. Forand (R.I.).
---------------------------------------------------------------------------
Mr. Multer: I make the point of order against title II and
specifically against that portion beginning at line 18 on page 45,
on the ground that it is legislation in an appropriation bill. . .
. The language placing $2,500,000 in a reserve fund is legislation
and not an appropriation. As a matter of fact, I think the point of
order could be raised against the entire title, because it is an
authorization to make expenditures, as appears at line 3 on page
45. However, I desire to direct the point of order at this moment
to the provision beginning in line 18.
[[Page 5576]]
The Chairman: Does the gentleman from Mississippi desire to be
heard on the point of order?
Mr. [Jamie L.] Whitten [of Mississippi]: Mr. Chairman, the
appropriation for the Commodity Credit Corporation is not in
actuality an appropriation, but it is a limitation on how much of
their funds they can use for administrative expenses. In the
absence of such limitation they could spend all their money for
their operations.
The committee has fixed a limitation at $16,500,000 as the
limit of their funds which they can spend; otherwise they could
spend all of their funds. . . .
Mr. Multer: The difficulty with the argument made against the
point of order is that this authorization now makes the reservation
and then provides that this sum of $2,500,000 shall be expended for
sums in excess of the budget estimates. I am now referring to line
24, same page. In other words, they take the money out and reserve
it, then provide it shall be spent for purposes in excess of budget
estimates. That is the real vice of this provision. . . .
The Chairman: Can the gentleman from Mississippi cite specific
law authorizing the committee to set aside these funds in reserve?
Mr. Whitten: I do not know of any law that authorizes the
committee to do so; no. I had not anticipated this would arise This
leaves, if the point of order is sustained, $16,500,000 to carry on
the administrative work instead of $14,500,000 as now provided.
The Chairman: In the absence of any citation on the part of the
gentleman, the Chair is constrained to sustain the point of order.
NASA--Scientific Consultations
Sec. 20.9 Where legislation authorizing the National Aeronautics and
Space Administration to use appropriated funds for scientific
consultations had not become law, language in an appropriation bill
to permit use of ``not to exceed $10,000 of appropriations in this
act . . . for scientific consultations'' was ruled out on a point
of order as not yet authorized.
On Apr. 19, 1960,(17) the Committee of the Whole was
considering H.R. 11776, a bill making appropriations for sundry
independent executive bureaus. When the Clerk read the following
paragraph, a point of order was raised as indicated:
---------------------------------------------------------------------------
17. 106 Cong. Rec. 8232, 86th Cong. 2d Sess.
---------------------------------------------------------------------------
Not to exceed $10,000 of appropriations in this Act for the
National Aeronautics and Space Administration shall be available
for scientific consultations and any emergency or extraordinary
expense pursuant to section 1(f) of the legislative authorization
for appropriations for the fiscal year 1961.
Mr. [H. R.] Gross [of Iowa]: Mr. Chairman, a point of order.
[[Page 5577]]
The Chairman: (18) The gentleman will state it.
---------------------------------------------------------------------------
18. Frank N. Ikard (Tex.).
---------------------------------------------------------------------------
Mr. Gross: The language on page 27, beginning with line 14
through line 19, I contend is legislation providing for an
appropriation not authorized by law.
The Chairman: Does the gentleman from Texas desire to be heard?
Mr. [Albert] Thomas [of Texas]: Mr. Chairman, we will have to
admit the point of order as good, the entire legislation has not
been cleared by both bodies or signed by the President, so if the
gentleman wants to make a point of order against any section of it,
to be perfectly frank about it, it is good.
The Chairman: The gentleman from Texas concedes the point of
order and the Chair sustains the point of order.
National Resources Planning Council
Sec. 20.10 An amendment making an appropriation for the National
Resources Planning Council was held not authorized by law.
On Feb. 17, 1943,(19) the Committee of the Whole was
considering H.R. 1362, an independent offices appropriation bill. At
one point the Clerk read as follows, and proceedings ensued as
indicated below:
---------------------------------------------------------------------------
19. 89 Cong. Rec. 1072, 78th Cong. 1st Sess.
---------------------------------------------------------------------------
Amendment offered by Mr. Magnuson: On page 63, line 14, insert
a new title:
``National Resources Planning Council
``For all salaries, expenses, including postwar planning
research, there shall be appropriated for the National Resources
Planning Council the sum of $415,000.''
Mr. [Everett M.] Dirksen [of Illinois]: Mr. Chairman, I make
the point of order on the paragraph on the ground that it is not
authorized by law. . . .
The Chairman: (20) The Chair is ready to rule. . . .
No law has been pointed out to the Chair, and the Chair is aware of
no statute that would authorize the appropriation. The Chair,
therefore, sustains the point of order.
---------------------------------------------------------------------------
20. William M. Whittington (Miss.).
---------------------------------------------------------------------------
Post Office--Substitute Mail Carriers
Sec. 20.11 An appropriation for payment to substitute mail carriers for
work on all holidays except Sundays was not authorized by law.
On Feb. 9, 1943,(1) the Committee of the Whole was
considering H.R. 1648, a Treasury and Post Office Departments
appropriation. During consideration of the bill, a point of order
against an amendment was sustained as indicated below:
---------------------------------------------------------------------------
1. 89 Cong. Rec. 742, 743, 78th Cong. 1st Sess.
---------------------------------------------------------------------------
Rural Delivery Service: For pay of rural carriers, auxiliary
carriers, sub
[[Page 5578]]
stitutes for rural carriers on annual and sick leave, clerks in
charge of rural stations, and tolls and ferriage, Rural Delivery
Service, and for the incidental expenses thereof, $92,200,000 of
which not less than $200,000 shall be available for extensions and
new service.
Mr. [Butler B.] Hare [of South Carolina]: Mr. Chairman, I offer
an amendment, which I send to the Clerk's desk.
The Clerk read as follows:
Amendment offered by Mr. Hare: Page 39, line 20, strike out
``$92,200,000'' and insert ``$94,000,000'', and at the end of
line 21, strike out the period, insert a comma, and add
``including delivery service by substitute carriers on all
holidays except Sundays.''
Mr. [Emmett] O'Neal [of Kentucky]: Mr. Chairman, I rise to make
a point of order against the amendment. The second provision of the
amendment is not authorized by law. . . .
The Chairman: (2) Is there any law at the present
time authorizing the payment to substitute carriers on Sunday? Is
there any law presently that authorizes that payment?
---------------------------------------------------------------------------
2. Wirt Courtney (Tenn.).
---------------------------------------------------------------------------
Mr. Hare: No, except city carriers and clerks, a general
authorization under the law. . . .
The Chairman: The Chair is prepared to rule.
The amendment offered by the gentleman from South Carolina
reads as follows:
Strike out ``$92,200,000'' and insert ``$94,000,000'', and
at the end of line 21 strike out the period, insert a comma,
and add ``including delivery service by substitute carriers on
all holidays except Sundays.''
The Chair knows of no authorization for the payment of such
services. The gentleman from South Carolina very frankly concedes
that he knows of no such authorization. The burden of proof being
upon the gentleman from South Carolina, who offered the amendment,
the Chair is of the opinion that the point of order is well taken
and sustains the point of order.
President's Emergency Fund
Sec. 20.12 Language in a general appropriation bill appropriating $5
million for the Emergency Fund for the President was held
unauthorized by law.
On Jan. 24, 1946,(3) The Committee of the Whole was
considering H.R. 5201, an independent offices appropriation. A point of
order was raised against the paragraph which follows:
---------------------------------------------------------------------------
3. 92 Cong. Rec. 355, 79th Cong. 2d Sess.
---------------------------------------------------------------------------
Emergency Fund for the President
Emergency fund for the President: Not to exceed $5,000,000 of
the appropriation ``Emergency fund for the President,'' contained
in the First Supplemental National Defense Appropriation Act, 1943,
as supplemented and amended, is hereby continued available until
June 30, 1947.
Mr. [Henry C.] Dworshak [of Idaho]: Mr. Chairman, I make a
point
[[Page 5579]]
of order against the paragraph just read on the ground there is no
legislative authority for the appropriation proposed.
The Chairman: (4) Does the gentleman from Florida
desire to be heard on the point of order made by the gentleman from
Idaho?
---------------------------------------------------------------------------
4. William M. Whittington (Miss.).
---------------------------------------------------------------------------
Mr. [Joe] Hendricks [of Florida]: Mr. Chairman, I will leave
that to the discretion of the Chair.
The Chairman: The gentleman from Idaho [Mr. Dworshak] makes a
point of order against the paragraph on the ground that the
appropriation is not authorized by law. The Chair has stated to the
gentleman in charge of the bill, the gentleman from Florida [Mr.
Hendricks], that he would be glad to hear him. In the absence of
any statement to the contrary, the Chair is bound by the statement
of the gentleman from Idaho and, therefore, sustains the point of
order.
President's Wife--Salary
Sec. 20.13 An amendment to a general appropriation bill providing for a
salary of $10,000 per year for the wife of the President for
maintaining the White House was held not authorized by law.
On Jan. 24, 1946,(5) during consideration in the
Committee of the Whole of the independent offices appropriation bill
(H.R. 5201), a point of order was made against the following amendment:
---------------------------------------------------------------------------
5. 92 Cong. Rec. 352, 79th Cong. 2d Sess.
---------------------------------------------------------------------------
Mr. [James G.] Fulton [of Pennsylvania]: Mr. Chairman, I offer
an amendment, which is at the desk.
The Clerk read as follows:
Amendment offered by Mr. Fulton: On page 2, line 15, after
the semicolon, insert ``to the wife of the President a salary
of $10,000 per year as services for maintaining the White House
establishment, not to be expended as the President may
determine''; and in line 21 strike out ``$883,660'' and insert
``$893,660.''
Mr. [Joe] Hendricks [of Florida]: Mr. Chairman, while I may
concede there is some merit to the proposal of the gentleman from
Pennsylvania, I make the point of order against the amendment that
it is an appropriation not authorized by law.
The Chairman: (6) The gentleman from Pennsylvania
[Mr. Fulton] offers an amendment in the following language:
---------------------------------------------------------------------------
6. William M. Whittington (Miss.).
---------------------------------------------------------------------------
On page 2, line 15, after the semicolon, insert ``to the
wife of the President a salary of $10,000 per year as services
for maintaining the White House establishment, not to be
expended as the President may determine''; and in line 21
strike out ``$883,660'' and insert ``$893,660.''
The gentleman from Florida makes the point of order that it is
an appropriation not authorized by law. Clearly it is an
appropriation not authorized by law.
The Chair sustains the point of order.
[[Page 5580]]
Public Health Service--Mineral Disease Treatment
Sec. 20.14 An amendment to an appropriation bill seeking to appropriate
funds to the Public Health Service, Division of Venereal Diseases,
for the purpose of continuing the operation of the Hot Springs
Transient Medical Center Infirmary at Hot Springs, Arkansas, was
held not to be authorized by law.
On Jan. 17, 1938,(7) the Committee of the Whole was
considering H.R. 8947, a U.S. Treasury and Post Office Departments
appropriation bill. At one point a point of order was raised after the
Clerk read an amendment.
---------------------------------------------------------------------------
7. 83 Cong. Rec. 649, 650, 75th Cong. 3d Sess.
---------------------------------------------------------------------------
Amendment offered by Mr. McClellan: On page 39, after line 11,
insert a new title and paragraph, as follows:
``Public Health Service, Division of Venereal Diseases: For the
purpose of continuing the operation and maintenance of the Hot
Springs Transient Medical Center Infirmary, located at Hot Springs
National Park, Ark., $180,000.''. . .
Mr. [Louis] Ludlow [of Indiana]: Mr. Chairman, I make the point
of order against the amendment that it is not authorized by
existing law, and in doing so I would like to compliment the
gentleman on the splendid fight he has made for his local community
and for his very able presentation of his case, but this would be
an irregular proceeding. . . .
The Chairman: (8) The Chair would like to ask the
gentleman from Arkansas if there has been an authorization
heretofore passed with reference to this project?
---------------------------------------------------------------------------
8. Arthur H. Greenwood (Ind.).
---------------------------------------------------------------------------
Mr. [John L.] McClellan [of Arkansas]: Nothing but a relief
appropriation, but a bill is now pending for that purpose.
The Chairman: The Chair is ready to rule.
The Chair sustains the point of order because it is legislation
on an appropriation bill, there having been no authorization act
heretofore passed.
Student Aid
Sec. 20.15 An appropriation to assist students, in such numbers as the
Chairman of the War Manpower Commission would determine, who were
participating in accelerated college programs in engineering,
physics, and other subjects was not authorized by law.
On June 5, 1942,(9) the Committee of the Whole was
considering H.R. 7181, a Labor Department and Federal Security Agency
appropriation. At one point the Clerk read the following amendment:
---------------------------------------------------------------------------
9. 88 Cong. Rec. 4959, 77th Cong. 2d Sess.
---------------------------------------------------------------------------
Amendment offered by Mr. Keefe: Page 25, after paragraph (2),
insert a
[[Page 5581]]
new paragraph, as follows: ``To assist students (in such numbers as
the chairman of the War Manpower Commission shall determine)
participating in accelerated programs in degree-granting colleges
and universities in engineering, physics, chemistry, medicine
(including veterinary), dentistry, and pharmacy and such other
technical and professional fields as said chairman may determine to
be necessary in connection with the national war effort, by
providing part-time employment, $5,000,000.''
Mr. [John] Taber [of New York]: Mr. Chairman, I make a point of
order against the amendment on the ground that it is not authorized
by law. . . .
The Chairman: (10) The Chair is ready to rule.
---------------------------------------------------------------------------
10. Howard W. Smith (Va.).
---------------------------------------------------------------------------
In the bill under consideration, which provides an
appropriation for the N.Y.A., there is no authority in law setting
up the N.Y.A.; and, therefore, in order that this appropriation for
that agency might not be thrown out on a point of order it was
necessary to have a special rule waiving points of order against
that particular appropriation. That rule waived points of order on
that clause in the bill.
The gentleman's amendment undertakes to make another
appropriation which is to be administered under the Chairman of the
Manpower Commission. It is the opinion of the Chair that there is
no authority in law for the appropriation proposed in the amendment
and the Chair is therefore constrained to sustain the point of
order.
Surgeon General--Entertainment Expenses
Sec. 20.16 Language in a general appropriation bill providing funds
``not to exceed $1,000 for entertainment of officials . . . when
authorized by the ``Surgeon General'' was held to be unauthorized
and to constitute legislative authority.
On Mar. 29, 1960,(11) 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:
---------------------------------------------------------------------------
11. 106 Cong. Rec. 6863, 86th Cong. 2d Sess. See also 106 Cong. Rec.
6864, 6865, 86th Cong. 2d Sess., Mar. 29, 1960.
---------------------------------------------------------------------------
The Clerk read as follows:
Assistance to States, General
To carry out the purposes, not otherwise specifically provided
for, of section 314(c) of the Act; to provide consultative services
to States pursuant to section 311 of the Act; to make field
investigations and demonstrations pursuant to section 301 of the
Act; to provide for collecting and compiling mortality, morbidity,
and vital statistics; not to exceed $1,000 for entertainment of
officials of other countries when specifically authorized by the
Surgeon General; and to provide traineeships pursuant to section
306 of the Act; $22,620,000.
Mr. [H. R.] Gross [of Iowa]: Mr. Chairman, I make a point of
order against the language to be found on
[[Page 5582]]
page 23 of the bill, line 1, reading as follows: ``not to exceed
$1,000 for entertainment of officials of other countries when
specifically authorized by the Surgeon General.''
I make the point of order that this is legislation on an
appropriation bill.
The Chairman: (12) Does the gentleman from Rhode
Island [Mr. John E. Fogarty] desire to be heard on the point of
order?
---------------------------------------------------------------------------
12. Eugene J. Keogh (N.Y.).
---------------------------------------------------------------------------
Mr. Fogarty: Mr. Chairman, as I read this language, it is just
a limitation in this appropriation bill that they shall not exceed
$1,000 for this purpose. . . .
The Chairman: The Chair is ready to rule. . . .
It would appear to the Chair that this is language intended to
permit of the making available of the sum of $1,000 for
entertainment of officials of other countries. It is not in essence
or in words a limitation on any appropriation made here. In the
absence of the citation of any substantive authority for this, the
Chair is compelled to sustain the point of order.
Higher Education Programs
Sec. 20.17 Funds claimed by the report of the Committee on
Appropriations to be available, inter alia, to expand educational
grants to middle income students but not specifically so earmarked
in the paragraph, were held to be generally authorized by the
Higher Education Act, although separate legislation modifying those
grant programs had not yet been enacted into law, since the
paragraph in question referred only to programs authorized by law
and since authorizations under all sections of law proposed to be
modified by that separate legislation had been extended by law for
the fiscal year in question.
On June 8, 1978,(13) during consideration in the
Committee of the Whole of the Departments of Labor and Health,
Education, and Welfare appropriation bill (H.R. 12929), the following
proceedings occurred as indicated above:
---------------------------------------------------------------------------
13. 124 Cong. Rec. 16778, 95th Cong. 2d Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
student assistance
For carrying out subparts 1 ($3,373,100,000), 2
($340,100,000), and 3 ($86,750,000) of part A, and parts C
($520,000,000) and E ($328,900,000) of Title IV of the Higher
Education Act, and, to the extent not otherwise provided, the
General Education Provisions Act, $4,675,750,000, of which
$4,651,350,000 shall remain available until September 30, 1980:
Provided, That amounts appropriated for basic opportunity
grants shall be available first to meet any insufficiencies in
entitlements resulting from the payment schedule for basic
opportunity grants published
[[Page 5583]]
by the Commissioner of Education during the prior fiscal year:
Provided further, That pursuant to section 411(b)(4)(A) of the
Higher Education Act, amounts appropriated herein for basic
opportunity grants which exceed the amounts required to meet
the payment schedule published for any fiscal year by 15 per
centum or less shall be carried forward and merged with amounts
appropriated the next fiscal year.
Mr. [R. Lawrence] Coughlin [of Pennsylvania]: Mr. Chairman, I
have a point of order. . . .
. . . [D]uring the discussion of the rule on this bill, I asked
if there was money in this portion of the bill for the so-called
Middle Income Student Assistance Act. The distinguished chairman of
the subcommittee informed me that there indeed was money in the
bill for that act.
I indicated at that time that the Middle Income Student
Assistance Act was not authorized. In fact, the House specifically
refused to consider that act and has subsequently passed the
Tuition Tax Credit Act. I was informed that was not necessary
because this could be done under current law.
Mr. Chairman, the Middle Income Student Assistance Act is not
current law. If the Middle Income Student Assistance Act is current
law, why did the President propose it as a new program?
Mr. Chairman, the committee report says that this appropriation
is based on the House version of the Middle Income Student
Assistance Act and will expand student aid for middle income
students. It will not expand aid for middle income students without
increasing the middle income student limitation, and there is no
authorization for that.
Mr. Chairman, I would like to know whether the Middle Income
Student Assistance Act is or is not in existence and whether it is
or is not necessary, and I make the point of order that the $1.4
billion in this section that is for expanded aid to middle income
students is not authorized. . . .
Mr. [David R.] Obey [of Wisconsin]: . . . Mr. Chairman, let me
just point out that the Middle Income Student Assistance Act, which
has not yet passed, simply gives direction and makes certain
changes in an already existing program. The bill before us today
funds programs which are in existing law, and the gentleman's point
of order is, therefore, not well taken.
The Chairman: (14) The Chair is ready to rule.
---------------------------------------------------------------------------
14. Richard Bolling (Mo.).
---------------------------------------------------------------------------
The gentleman stated quite accurately that the report of the
committee on this appropriation bill indicated that the Middle
Income Student Assistance Act H.R. 11274 had not become law. It
also says, and I quote, on page 74:
Even though this legislation is still pending,
appropriations can be made under existing authority to expand
student aid for middle income students, as expressed in the
bill and accompanying report.
The Chair has had an opportunity to examine the report on H.R
11274 and the basic law. This is Public Law 94-482, 94th Congress,
the Education Amendment of 1976.
Section 121, Part D, Student Assistance Basic Educational
Opportunity Grants, extends the authorizations of the basic act to
September 30, 1979.
Considering all of the authorizations for fiscal 1979 under
part D--Student
[[Page 5584]]
Assistance--together, it would appear that the funds in the
paragraph in question are authorized.
Therefore, the Chair believes that the Committee is correct in
its view that there is extant authorization justifying this
appropriation, and he overrules the point of order.
Parliamentarian's Note: H.R. 11274, the Middle Income Student
Assistance Act, had been reported from the Committee on Education and
Labor but had not passed the House. The report on that bill indicated
that all of the five existing programs of student financial assistance
which that bill would modify had been extended through fiscal 1979 by
Public Law No. 94-482. The purpose of H.R. 11274 was merely to redirect
emphasis toward assistance for middle income students, but not to
provide new authorization.
Public Service Jobs--Earmarking
Sec. 20.18 Where existing law authorized appropriations for employment
of persons by public employers to provide public services, an
amendment appropriating funds for railroad maintenance employment
``pursuant to contracts with railroads'' was held unauthorized
where its sponsor failed to cite specific authority for the
program.
On Mar. 12, 1975,(15) during consideration in the
Committee of the Whole of H.R. 4481 [the Emergency Employment
Appropriation Act of 1975], a point of order was sustained against an
amendment, as follows:
---------------------------------------------------------------------------
15. 121 Cong. Rec. 6338, 6339, 94th Cong. 1st Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
Amendment offered by Mr. [Samuel L.] Devine [of Ohio]: Page
7, line 6, strike out the period and insert in lieu thereof the
following: ``; of which amount $250,000,000 shall be available
only for use by State and local prime sponsors to provide
emergency jobs for unemployed workers to perform needed
railroad maintenance of way services pursuant to contracts with
railroads located within the geographical jurisdiction of such
sponsors.''
Mr. [George H.] Mahon [of Texas]: Mr. Chairman, I make a point
of order against the amendment on the ground that there is no
authorization for this action and it violates clause 2 of rule XXI.
. . .
Mr. Devine: . . . I recognized when this amendment would be
offered it might be construed as legislation on an appropriation
measure, but I have gone back to the act and I have looked at the
act. The purpose of the act we passed in 1946, the Employment Act,
was consistent with those needs and obligations and other essential
considerations of national policy for the purpose of creating and
maintaining, in a manner calculated to foster and promote free
competitive enterprise and the general welfare, conditions under
[[Page 5585]]
which there will be afforded useful employment opportunities--and I
repeat, useful employment opportunities. That is the purpose of the
act.
What we are doing in this amendment is providing useful
employment opportunities--not leaf raking and not make work jobs,
but useful employment opportunities.
The whole purpose of the bill is to provide funds for public
service jobs. That is exactly the purpose of the amendment, except
it earmarks that. In my opinion, Mr. Chairman, this does not
violate the rules and I think the point of order should be
overruled. . . .
The Chairman: (16) The Chair is prepared to rule.
---------------------------------------------------------------------------
16. Jack Brooks (Tex.).
---------------------------------------------------------------------------
The amendment specifies that this quarter billion dollars shall
be available for use only by State and local prime sponsors to
provide emergency jobs for unemployed workers to perform railroad
maintenance. The Chair has examined Public Law 93-567, and there is
no specific authorization for such purpose. The Chair finds that
the proposed amendment further changes the allocation formula
contained in Public Law 93-567, which is described on pages 34 and
35 of the report, and further interferes with the discretion given
the Secretary under section 603(b) of the public law as to the
utilization of the final 10 percent of the authorized amounts. In
chapter 26, section 6 of ``Deschler's Procedure,'' it provides very
clearly that there is ample precedent that such reallocations in
appropriation bills are legislation, and the point of order is
sustained.
Officials' Representation Expenses
Sec. 20.19 A section of a general appropriation bill authorizing the
Secretaries of Labor and Health, Education, and Welfare to use
funds in the bill for official reception and representation
expenses was conceded to be unauthorized and was ruled out in
violation of Rule XXI clause 2.
On June 27, 1974,(17) during consideration in the
Committee of the Whole of H.R. 15580 (Departments of Labor and Health,
Education, and Welfare appropriations), a point of order was sustained
against the following provision:
---------------------------------------------------------------------------
17. 120 Cong. Rec. 21686, 21687, 93d Cong. 2d Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
Sec. 404. The Secretary of Labor and the Secretary of
Health, Education, and Welfare are each authorized to make
available not to exceed $7,500 from funds available for
salaries and expenses under titles I and II, respectively, for
official reception and representation expenses.
Mr. [H. R.] Gross [of Iowa]: Mr. Chairman, I make a point of
order against the language to be found on page 37, beginning with
line 21 and running through line 25 as being appropriation not
authorized by law. . . .
Mr. [Daniel J.] Flood [of Pennsylvania]: It is the entire
section 404?
[[Page 5586]]
Mr. Chairman, we concede the point of order.
The Chairman: (18) The point of order is conceded
and sustained.
---------------------------------------------------------------------------
18. James C. Wright, Jr. (Tex.).
---------------------------------------------------------------------------
CHAPTER 26
Unauthorized Appropriations; Legislation on Appropriation Bills
B. APPROPRIATIONS FOR UNAUTHORIZED PURPOSES
Sec. 21. Increasing Amount Beyond Authorization
Generally
Sec. 21.1 An amendment proposing to appropriate a sum in addition to
that authorized by law for a specific purpose is not in order on an
appropriation bill.
On Mar. 12, 1942,(19) The Committee of the Whole was
considering H.R. 6709, an Agriculture Department appropriation bill.
During consideration, a point of order against an amendment was
sustained as indicated below:
---------------------------------------------------------------------------
19. 88 Cong. Rec. 2346, 77th Cong. 2d Sess.
---------------------------------------------------------------------------
Mr. [H. Jerry] Voorhis of California: Mr. Chairman, I offer an
amendment.
The Clerk read as follows:
Amendment offered by Mr. Voorhis of California: Page 79,
line 11, after the period, add the following paragraph:
``To enable the Secretary of Agriculture to further carry
out the provisions of section 32, as amended, of the act
entitled `An act to amend the Agricultural Adjustment Act, and
for other purposes,' approved August 24, 1935, and subject to
all provisions of law relating to the expenditure of funds
appropriated by such section, $40,000,000. Such sum shall be
immediately available and shall be in addition to, and not in
substitution for, other appropriations made by such section or
for the purpose of such section.''
Mr. [Malcolm C.] Tarver [of Georgia]: Mr. Chairman, I make a
point of order against the amendment offered by the gentleman from
California on the ground that there is no authority of law for
making an appropriation in addition to the permanent appropriation
made by section 32 of the Agricultural Adjustment Act. There is no
legislative basis for the amendment which the gentleman offers.
The Chairman: (20) Does the gentleman from
California wish to be heard on the point of order?
---------------------------------------------------------------------------
20. Robert Ramspeck (Ga.).
---------------------------------------------------------------------------
Mr. Voorhis of California: No, Mr. Chairman; I concede the
point of order.
The Chairman: The point of order is sustained.
Increase in Lump Sum Beyond Authorization
Sec. 21.2 An amendment proposing an increase in the amount of an
appropriation authorized by law was held to be unauthorized: to the
appropriation for compensation of Members of the House, an
amendment proposing to increase the total amount beyond that
authorized was held to be in violation of Rule XXI clause 2.
[[Page 5587]]
On Apr. 19, 1950,(1) during consideration in the
Committee of the Whole of the legislative branch appropriation bill
(H.R. 7786), a point of order was raised against the following
provision:
---------------------------------------------------------------------------
1. 96 Cong. Rec. 5392, 5393, 81st Cong. 2d Sess.
---------------------------------------------------------------------------
Chapter II, Legislative Branch
The Clerk read as follows:
For compensation of Members of the House of
Representatives, Delegates from Territories, and the Resident
Commissioner from Puerto Rico, $5,492,500. . . .
Mr. [Abraham J.] Multer [of New York]: Mr. Chairman, I offer an
amendment.
The Clerk read as follows:
Amendment offered by Mr. Multer: Page 3, line 6, strike out
``$5,492,500'' and insert in lieu thereof ``$7,135,000.''
Mr. [Christopher C.] McGrath [of New York]: Mr. Chairman, I
make the point of order against the amendment that there is no
authority in law for this increase.
The Chairman: (2) Does the gentleman from New York
[Mr. Multer] desire to be heard on the point of order?
---------------------------------------------------------------------------
2. Jere Cooper (Tenn.).
---------------------------------------------------------------------------
Mr. Multer: No; I do not care to be heard on the point of
order.
The Chairman: Can the gentleman from New York [Mr. Multer] cite
any authorization of law for the increase proposed by his
amendment?
Mr. Multer: Only the fact that this body has the authority to
fix the salary of its Members. I think it does not matter how or in
what bill the House does it. It may do so as part of an
appropriation bill. This item being the item appropriating for the
pay of Members of Congress I think it is subject to amendment.
The Chairman: Does the gentleman from New York [Mr. McGrath]
desire to be heard on the point of order?
Mr. McGrath: Mr. Chairman, while I recognize that the Members
of the House are deserving of an increase in compensation, yet my
position at this time is of a legislative capacity and I must
support the rules of the House.
I respectfully submit that the point of order lies against the
amendment.
Mr. [John] Taber [of New York]: Mr. Chairman, will the
gentleman from New York yield for a question?
Mr. McGrath: I yield.
Mr. Taber: As I understand, this is an amendment to the gross
amount for salaries. It is not in order, of course, because the
only authority we have is to appropriate an amount equivalent to
the product of the fixed salary times the number of Members. The
effect of the amendment would not even be to increase the salary.
The Chairman: The Chair is prepared to rule.
The gentleman from New York [Mr. Multer] has offered an
amendment which has been reported; the gentleman from New York [Mr.
McGrath] has made a point of order against the amendment on the
ground that the amount sought to be included by the amendment is
not authorized by law.
The Chair has examined the question to some extent, and it
appears that the amount carried in the bill re
[[Page 5588]]
flects the amount authorized by existing law. Therefore, the
amendment offered by the gentleman from New York would be in excess
of existing authority of law.
The point of order is sustained.
Where Part of Lump Sum is Unauthorized
Sec. 21.3 Instance where a point of order was conceded against a
paragraph of an appropriation bill on the ground that a lump-sum
figure therein included funds for one organization in excess of the
authorization therefor even though all funds in the lump sum were
to be available only as authorized by law.
On Apr. 12, 1960,(3) the Committee of the Whole was
considering H.R. 11666, an appropriation for the Departments of State,
Justice, and the Judiciary. At one point the Clerk read as follows, and
proceedings ensued as indicated below:
---------------------------------------------------------------------------
3. 106 Cong. Rec. 7941, 86th Cong. 2d Sess.
---------------------------------------------------------------------------
Missions to International Organizations
For expenses necessary for permanent representation to certain
international organizations in which the United States participates
pursuant to treaties, conventions, or specific acts of Congress,
including expenses authorized by the pertinent acts and conventions
providing for such representation; salaries, expenses, and
allowances of personnel and dependents as authorized by the Foreign
Service Act of 1946, as amended (22 U.S.C. 801-1158); hire of
passenger motor vehicles; printing and binding, without regard to
section 11 of the act of March 1, 1919 (44 U.S.C. 111); and
purchase of uniforms for guards and chauffeurs; $1,850,000.
Mr. [H. R.] Gross [of Iowa]: Mr. Chairman, I make a point of
order against the language on page 7 beginning with line 1 and
running through line 12 on the ground that it contains an
appropriation not authorized by law. . . .
The Chairman: (4) Does the gentleman from New York
desire to be heard on the point of order?
---------------------------------------------------------------------------
4. W. Homer Thornberry (Tex.).
---------------------------------------------------------------------------
Mr. [John J.] Rooney [of New York]: Yes, Mr. Chairman. This is
going to be a great deal of tweedledee and tweedledum. It is the
fact, and we concede, that the Interparliamentary Union, which has
been in existence for some 70-odd years, does not have an
authorization for expenditure beyond $15,000 per annum, whereas the
newly created NATO Interparliamentary Union and the Canadian
Interparliamentary Union have authorizations for $30,000. The
committee felt that the oldest one, the 70-year-old one, should be
put on the same basis as the two lately formed ones, and for that
reason inserted in the bill $30,000.
Mr. Chairman, I am now constrained to concede that the point of
order is
[[Page 5589]]
well taken and I shall immediately offer an amendment.
The Chairman: The point of order is conceded and
sustained.(5)
---------------------------------------------------------------------------
5. Parliamentarian's Note: The language of the bill specified that
appropriations in the paragraph were available only for
``expenses authorized by the pertinent acts'' providing for
United States participation in the organizations. Under a
ruling of the Chair on June 18, 1960 (106 Cong. Rec. 11646,
86th Cong. 2d Sess.) and similar precedents, the quoted
language arguably would have limited the amount which could be
used to the amount actually authorized, in which case the point
of order would not have lain.
---------------------------------------------------------------------------
Committee Funds Above Authorized Level
Sec. 21.4 A provision in an appropriation bill providing funds for the
Joint Committee on Reduction of Nonessential Federal Expenditures
in excess of the amount authorized by law was ruled out as in
violation of Rule XXI clause 2.
On Apr. 10, 1964,(6) during consideration in the
Committee of the Whole of the legislative branch appropriation bill
(H.R. 10723), a point of order was raised against the following
provision:
---------------------------------------------------------------------------
6. 110 Cong. Rec. 7636, 7637, 88th Cong. 2d Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
Joint Committee on Reduction of Nonessential Federal
Expenditures
For an amount to enable the Joint Committee on Reduction of
Nonessential Federal Expenditures to carry out the duties
imposed upon it by section 601 of the Revenue Act of 1941 (55
Stat. 726), to remain available during the existence of the
Committee, $29,750, to be disbursed by the Secretary of State.
Mr. [John J.] Rooney of New York: Mr. Chairman, I make a point
of order against the language relating to the Joint Committee on
Reduction of Nonessential Federal Expenditures which appears on
page 9, line 15 through line 2 on page 10, inclusive. There is no
authority in the basic law to appropriate such an amount. The joint
committee was established by the provisions of section 601 of the
Revenue Act of 1941 and appears in volume 55 of the Statutes at
Large, on page 726. Subsection (e) of section 601 limits the total
appropriations that can be made to this joint committee to the sum
of $10,000, or less, and I will quote the subsection as follows:
There is hereby authorized to be appropriated, the sum of
$10,000, or so much thereof as may be necessary, to carry out
the provisions of this section.
This joint committee was clearly intended to be a temporary
thing of short duration. As a matter of fact, it has not been
carried into the United States Code although that is not a matter
of great importance to this question, even though it indicates that
in the eyes of the people who prepare the code it was to be a
temporary thing. I trust that the Chair will sustain the point of
order which I have made. . . .
[[Page 5590]]
The Chairman: (7) Does the gentleman from Oklahoma
concede the point of order?
---------------------------------------------------------------------------
7. Clark W. Thompson (Tex.).
---------------------------------------------------------------------------
Mr. [Thomas J.] Steed [of Oklahoma]: Reluctantly, Mr. Chairman.
We have no other point to stand on except the fact that this has
been done for many years without protest. If that does not give it
life and legality, I know of no way that would give it life and
legality as of this moment. I certainly cannot with any logic offer
a substitute of only $10,000. That is so far from the realities of
the moment that I will just have to let it pass for the moment.
The Chairman: The Chair is prepared to rule.
Inasmuch as the authorization is for $10,000 and the
appropriation is for considerably more than that, the Chair
believes the point of order is well taken.
The point of order is sustained.
Sec. 21.5 Language in a general appropriation bill providing funds for
the Joint Committee on Defense Production in excess of the amount
authorized by law was conceded to be subject to a point of order.
On Apr. 10, 1964,(8) during consideration in the
Committee of the Whole of the legislative branch appropriation bill
(H.R. 10723), a point of order was sustained against the following
provision:
---------------------------------------------------------------------------
8. 110 Cong. Rec. 7640, 88th Cong. 2d Sess.
---------------------------------------------------------------------------
The Clerk read as follows--page 10, line 21:
Joint Committee on Defense Production
For salaries and expenses of the Joint Committee on Defense
Production as authorized by the Defense Production Act of 1950,
as amended, $90,520.
Mr. [Frank T.] Bow [of Ohio]: Mr. Chairman, I make a point of
order against the paragraph relating to the Joint Committee on
Defense Production which appears on page 10, lines 21 to 24,
inclusive, on the grounds that the amount proposed to be
appropriated, $90,520, exceeds the amount that is authorized to be
appropriated in the basic law. In title 50 of the United States
Code, section 2162(e), authorization for this committee is limited
to not to exceed $65,000 in any fiscal year, and I quote subsection
(e) as follows:
The expenses of the committee under this section, which
shall not exceed $65,000 in any fiscal year, shall be paid from
the contingent fund of the House of Representatives upon
vouchers signed by the chairman or vice chairman.
In view of this limitation, the proposed appropriation in the
pending bill is, in my opinion, clearly subject to a point of order
and I trust the Chair will so rule.
The Chairman: (9) Does the gentleman from Oklahoma
desire to be heard on the point of order?
---------------------------------------------------------------------------
9. Wilbur D. Mills (Ark.).
---------------------------------------------------------------------------
Mr. [Thomas J.] Steed [of Oklahoma]: Mr. Chairman, I would have
to concede the point of order. The only way I know to meet this
situation is to offer an amendment at this point.
The Chairman: Did I understand correctly that the gentleman
from Oklahoma concedes the point of order?.
[[Page 5591]]
Mr. Steed: That is correct, Mr. Chairman.
The Chairman: The gentleman concedes the point of order.
The point of order is sustained.
CHAPTER 26
Unauthorized Appropriations; Legislation on Appropriation Bills
C. PROVISIONS AS ``CHANGING EXISTING LAW,'' GENERALLY
Sec. 22. In General; Burden of Proof
The sections that follow discuss application of the rule
prohibiting provisions ``changing existing law'' in general
appropriation bills. The rule itself, and the broad qualifications on
its use, are discussed in detail at the beginning of this
chapter.(10)
---------------------------------------------------------------------------
10. See Sec. 1, supra.
See supplements to this edition as they appear for
discussion of recently adopted rules, including the requirement
that the Committee on Appropriations include, in its reports on
general appropriation bills, a statement describing the effect
of any provision changing the application of existing law.
---------------------------------------------------------------------------
By way of contrast, some rulings which belong under part F of this
chapter, ``Permissible Limitations on Use of Funds,'' are carried in
parts C, D, and E, which discuss provisions ``changing existing law,''
to permit the reader to better understand the subtle distinctions
between these two lines of precedent.
As noted in prior sections of this chapter, clause 2 of Rule XXI
proscribes both (1) appropriations not authorized by law, and (2)
provisions changing existing law. Some rulings interrelate these two
separate proscriptions more than is technically necessary, and this
chapter is intended, in part, to place the proper emphasis on the most
appropriate portion of Rule XXI clause 2 relied upon by the Chair in
its ruling. -------------------
Availability of Appropriation Contingent on Further Legislative Action
Sec. 22.1 Language in an appropriation bill changing existing law by
imposing a new committee approval requirement for the availability
of funds is legislation and not in order.
On June 29, 1959,(11) during consideration in the
Committee of the Whole of a supplemental appropriation bill (H.R.
7978), a point of order was raised against the following provision:
---------------------------------------------------------------------------
11. 105 Cong. Rec. 12125, 86th Cong. 1st Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
For contractual research, development, operations,
technical services, repairs, alterations, and minor
construction, and for supplies, materials, and equipment
necessary for the conduct and support of aero
[[Page 5592]]
nautical and space research and development activities of the
National Aeronautics and Space Administration, including not to
exceed $5,000 for representation allowances overseas and
official entertainment expenses, to be expended upon the
approval or authority of the Administrator; not to exceed $500
for newspapers and periodicals; and purchase of thirty-two
passenger motor vehicles, of which nineteen shall be for
replacement only; $300,000,000, to remain available until
expended: Provided, That this appropriation shall also be
available for other items of a capital nature only after such
items in excess of $250,000 shall first receive the approval in
writing of the Committee on Science and Astronautics of the
House of Representatives and the Committee on Aeronautical and
Space Sciences of the Senate: Provided further, That no part of
this appropriation shall be available for payment of salaries
of National Aeronautics and Space Administration personnel.
Mr. [John] Taber [of New York]: Mr. Chairman, a point of order.
The Chairman: (12) The gentleman will state it.
---------------------------------------------------------------------------
12. Paul J. Kilday (Tex.).
---------------------------------------------------------------------------
Mr. Taber: I make the point of order against the language on
page 4, lines 16 to 22, inclusive, beginning with the word,
``Provided'' and ending with the word ``Senate'' on the ground that
it is legislation on an appropriation bill and requires additional
duties.
The Chairman: Does the gentleman from Texas [Mr. Thomas] desire
to be heard on the point of order?
Mr. [Albert] Thomas: Mr. Chairman, unquestionably the point of
order is good. We were merely trying to straighten out some
language in that Act, and I send an amendment to the Clerk's desk.
The Chairman: The gentleman from Texas concedes the point of
order, and the Chair sustains the point of order.
Extending Availability of Funds Beyond That Specified in Existing Law
Sec. 22.2 Language in an appropriation bill making an appropriation for
a census of agriculture available beyond the time for which it was
originally authorized was held to be legislation on an
appropriation bill and not in order.
On Dec. 7, 1944,(13) the Committee of the Whole was
considering H.R. 5587, a supplemental appropriation. A point of order
was raised against a paragraph of the bill providing for a census of
agriculture:
---------------------------------------------------------------------------
13. 90 Cong. Rec. 8995, 8996, 78th Cong. 2d Sess.
---------------------------------------------------------------------------
Census of agriculture: For an additional amount for census of
agriculture, including the objects specified under this head in the
Department of Commerce Appropriation Act, 1945, $5,500,000, to
remain available until December 31, 1946.
Mr. [Frank B.] Keefe [of Wisconsin]: Mr. Chairman, I make the
point of order against the paragraph and call attention to the
language on page 23, line 3, ``$5,500,000 to remain available until
December 31, 1946,'' as not being authorized by law and being
legislation on an appropriation bill.
[[Page 5593]]
The Chairman: (14) does the gentleman from
Pennsylvania desire to be heard on the point of order?
---------------------------------------------------------------------------
14. Herbert C. Bonner (N.C.).
---------------------------------------------------------------------------
Mr. [J. Buell] Snyder [of Pennsylvania]: The title of the bill
provides for just what the gentleman states. This work is under
way, and this is just an additional amount to carry on.
The Chairman: Does the gentleman from Pennsylvania hold that
this amount is authorized?.
Mr. Snyder: I do, Mr. Chairman.
The Chairman: Will the gentleman cite the authorization?.
Mr. Snyder: The authorization is the Agricultural Appropriation
Act for the current fiscal year.
The Chairman: Does the gentleman from Wisconsin further contend
that the amount is not authorized?.
Mr. Keefe: I contend, Mr. Chairman, that the provision making
the amount available until December 31, 1946, makes it
objectionable, as it carries it beyond any authorization.
The Chairman: Does the gentleman from Pennsylvania wish to be
heard further on the point of order?.
Mr. Snyder: Nothing further, Mr. Chairman.
The Chairman: The Chair sustains the point of order.
Amending Dates in Authorization Law
Sec. 22.3 To a paragraph of an appropriation bill making appropriations
for the United Nations Relief and Rehabilitation Administration, an
amendment seeking to extend the dates named in the proviso clause
of the first paragraph of the UNRRA Act for 90 days was held to be
legislation on an appropriation bill and not in order.
On June 27, 1946,(15) during consideration in the
Committee of the Whole of a deficiency appropriation bill (H.R. 6885),
a point of order was raised against the following amendment:
---------------------------------------------------------------------------
15. 92 Cong. Rec. 7758, 79th Cong. 2d Sess.
---------------------------------------------------------------------------
Mr. [Emmet] O'Neal [of Kentucky]: Mr. Chairman, I offer an
amendment.
The Clerk read as follows:
Amendment offered by Mr. O'Neal: On page 4, line 14, after
``1947'', insert ``Provided, That the dates named in the
proviso clause of the first paragraph of the United Nations
Relief and Rehabilitation Administration Participation Act,
1946, are each hereby extended for 90 days.''
Mr. [John] Taber [of New York]: Mr. Chairman, I make a point of
order against the amendment on the ground that it is legislation on
an appropriation bill not authorized by existing law.
Mr. O'Neal: Mr. Chairman, I should like to be heard on the
point of order.
The gentleman makes the point of order that it is legislation
on an appropriation bill. The amendment offered applies directly to
the legislation referred to in the same paragraph, the
Rehabilitation Administration Participation Act, 1946. The
provisions of
[[Page 5594]]
that act are referred to in this paragraph, and the amendment
affects one of the parts of the Participation Act. It seems clear
to me, since it touches on the very matter referred to in the
paragraph, that it is certainly not legislation which is not in
conformity with the rest of the paragraph.
Mr. Taber: The law now provides a period within which certain
things may be done. This changes the law so as to make that period
90 days longer. There is nothing in the bill at the present time to
which this amendment is germane.
The Chairman: (16) The Chair is ready to rule. In
the opinion of the Chair, the amendment is clearly legislation on
an appropriation bill. The point of order is sustained.
---------------------------------------------------------------------------
16. Harold D. Cooley (N.C.).
---------------------------------------------------------------------------
Conferring Discretion
Sec. 22.4 An amendment to an appropriation bill, providing that no
appropriations in the bill be available for contracts for
procurements from private contractors except where a federal
official determines to the contrary was held to confer new
discretionary authority and to be legislation.
On Apr. 13, 1949,(17) during consideration in the
Committee of the Whole of the military establishment appropriation bill
(H.R. 4146), a point of order was raised against an amendment
containing the following provision:
---------------------------------------------------------------------------
17. 95 Cong. Rec. 4534, 4535, 81st Cong. 1st Sess.
---------------------------------------------------------------------------
Mr. [John E.] Fogarty [of Rhode Island]: Mr. Chairman, I offer
an amendment.
The Clerk read as follows:
Page 90, following line 21, insert a new section, as
follows:
``Sec. 629. No part of the appropriations made in this act
shall be available . . . and no moneys herein appropriated for
the Naval Establishment or made available therefor shall be
used or expended under contracts hereafter made for the repair,
purchase, or acquirement, by or from any private contractor, of
any naval vessel, machinery, article, or articles that at the
time of the proposed repair, purchase, or acquirement can be
repaired, manufactured, or produced in each or any of the
Government naval shipyards or arsenals of the United States,
when time and facilities permit, and when, in the judgment of
the Secretary, such repair, purchase, acquirement, or
production would not involve an appreciable increase in cost to
the Government, except when the repair, purchase, or
acquirement, by or from any private contractor, would, in the
opinion of the Secretary, be advantageous to the national
defense.''
Mr. [George H.] Mahon [of Texas]: Mr. Chairman, I make the
point of order against the amendment that it is legislation on an
appropriation bill.
Mr. [Francis H.] Case of South Dakota: Mr. Chairman, the
proposed amendment clearly imposes additional duties.
The Chairman: (18) Does the gentleman from Rhode
Island desire to be heard on the point of order?
---------------------------------------------------------------------------
18. Eugene J. Keogh (N.Y.).
---------------------------------------------------------------------------
[[Page 5595]]
Mr. Fogarty: Mr. Chairman, in offering this amendment today I
am not attempting to offer something that has not been in previous
appropriation bills. The exact language of the amendment I am
offering has appeared in appropriation bills for the military and
the naval establishments for the past 25 or 30 years. Without any
hearings on this particular section of the bill it was stricken out
by the subcommittee handling the bill before use this afternoon.
The House has acted upon this very same amendment in the past, and
it was considered germane. In a conference between the House and
the Senate a year ago this provision was agreed on. I think the
amendment is in order at the present time.
The Chairman: The Chair is ready to rule.
The gentleman from Rhode Island offers an amendment against
which a point of order is made on the ground that it is legislation
on an appropriation bill. While it would seem to be a limitation of
appropriation, the Chair calls the attention of the Committee to
the fact that the amendment does confer discretionary authority
upon the Secretary. It is the opinion of the Chair that to that
extent the amendment is legislation on an appropriation bill.
Therefore, the Chair sustains the point of order.
Incorporation of Legislative Language by Reference
Sec. 22.5 The incorporation by reference of a legislative provision in
a former appropriation act is not in order in a general
appropriation bill: language in the D.C. appropriation bill
providing that employment on playgrounds shall be distributed in
accordance with corresponding employment provided for in the D.C.
appropriation act for a former fiscal year was held to be
legislation.
On Apr. 2, 1937,(19) during consideration in the
Committee of the Whole of the District of Columbia appropriation bill,
a point of order was raised against the first clause in the proviso in
the following paragraph:
---------------------------------------------------------------------------
19. 81 Cong. Rec. 3107, 75th Cong. 1st Sess.
---------------------------------------------------------------------------
Community Center Department
For personal services of the director, general secretaries, and
community secretaries in accordance with the act approved June 4,
1924 (43 Stat., pp. 369, 370); clerks and part-time employees,
including janitors on account of meetings of parent-teacher
associations and other activities; for personal services for public
playgrounds adjacent to and in the vicinity of school buildings:
Provided, That employments on such playgrounds, except directors
who shall be employed for 12 months, shall be distributed as to
duration in accordance with corresponding employments provided for
in the District of Columbia Appropriation Act for the fiscal year
1924; for keeping open public-school playgrounds, including
playgrounds operated during the summer months and daily after
school hours;
[[Page 5596]]
for general maintenance, repairs, improvements, equipment,
supplies, lighting fixtures, and other incidental and contingent
expenses, including labor; and including $10,000 for health and
physical education teachers to supervise play in schools of the
central area bounded by North Capitol Street on the east, Florida
Avenue on the north, the Mall on the south, and Twelfth Street on
the west, $216,565.
Mr. [Jack] Nichols [of Oklahoma]: Mr. Chairman, I make a point
of order against the paragraph beginning in line 23, on page 26,
down to and inclusive of line 18, on page 27, for the reason that
it changes existing law and is, therefore, legislation on an
appropriation bill.
The Chairman: (20) Does the gentleman from
Mississippi desire to be heard on the point of order?
---------------------------------------------------------------------------
20. Jere Cooper (Tenn.).
---------------------------------------------------------------------------
Mr. [Ross A.] Collins [of Mississippi]: I do not, Mr. Chairman,
except to say that the only provision of the paragraph subject to
the point of order is the proviso.
The Chairman: Does the gentleman from Oklahoma make the point
of order against the entire paragraph?
Mr. Nichols: Mr. Chairman, I modify my point of order and
direct it to that portion of the paragraph beginning in line 4,
page 27, which is the proviso.
The Chairman: The Chair is prepared to rule. . . .
The proviso on page 27, beginning at line 4 and continuing
through the figures ``1924'' in line 9, is the language against
which the point of order is made. The appropriation act of 1924 was
law for that year and did not become permanent law. This provision
would incorporate into this bill the legislative provision of the
act of 1924, and is therefore legislation on an appropriation bill.
The Chair sustains the point of order.
Sec. 22.6 A provision making restrictions and conditions imposed on
similar programs in other appropriation acts applicable to the
funds being appropriated in the bill under consideration was
conceded to be legislation and was ruled out as in violation of
Rule XXI clause 2.
On May 15, 1957,(1) during consideration in the
Committee of the Whole of the Agriculture Department appropriation bill
(H.R. 7441), the following point of order was raised:
---------------------------------------------------------------------------
1. 103 Cong. Rec. 7012, 85th Cong. 1st Sess.
---------------------------------------------------------------------------
Mr. [John J.] Rooney [of New York]: Mr. Chairman, I make a
point of order with regard to the language beginning with the words
``Provided further,'' on line 8, at page 10, down to and including
the word ``Service'' on line 14, the language being as follows:
Provided further, That provisions of the act of August 1,
1956 (70 Stat. 890-892), and provisions of a similar nature in
appropriation acts of the Department of State for the current
and subsequent fiscal years which facilitate the work of the
Foreign
[[Page 5597]]
Service shall be applicable to funds available to the Foreign
Agricultural Service.
I make the point of order, Mr. Chairman, on the ground that
this language is legislation on an appropriation bill.
Mr. [Jamie L.] Whitten [of Mississippi]: Mr. Chairman, may I be
heard?
The Chairman: (2) The Chair recognizes the gentleman
from Mississippi [Mr. Whitten].
---------------------------------------------------------------------------
2. Paul J. Kilday (Tex.).
---------------------------------------------------------------------------
Mr. Whitten: Mr. Chairman, the committee concedes the point of
order.
The Chairman: The gentleman from Mississippi concedes the point
of order. The point of order is sustained.
House Resolution Made Permanent Law
Sec. 22.7 Language in a general appropriation bill prescribing that the
provisions of a House-passed resolution ``shall be the permanent
law with respect thereto'' was conceded to be legislation in
violation of Rule XXI clause 2 and was ruled out on a point of
order.
On June 4, 1971,(3) during consideration in the
Committee of the Whole of the legislative branch appropriation bill
(H.R. 8825), a point of order was raised against the following
provision:
---------------------------------------------------------------------------
3. 117 Cong. Rec. 18040, 92d Cong. 1st Sess.
---------------------------------------------------------------------------
Postage Stamp Allowances
Postage stamp allowances for the second session of the Ninety-
second Congress, as follows: Clerk, $1,120; Sergeant at Arms, $840;
Doorkeeper, $700; Postmaster, $560; each Member, the Speaker, the
majority and minority leaders, the majority and minority whips, and
each standing committee, as authorized by law; $321,090: Provided,
That the provisions of House Resolution 420, Ninety-second
Congress, shall be the permanent law with respect thereto.
Mr. [H. R.] Gross [of Iowa]: Mr. Chairman, I make a point of
order against the language to be found on page 7, line 7, which
states as follows:
Provided, That the provisions of House Resolution 420,
Ninety-second Congress shall be the permanent law with respect
thereto.
I make a point of order against that language on the ground
that it is legislation on an appropriation bill.
The Chairman: (4) The Chair will inquire of the
gentleman from Alabama if he wishes to be heard on the point of
order.
---------------------------------------------------------------------------
4. John M. Murphy (N.Y.).
---------------------------------------------------------------------------
Mr. [George W.] Andrews of Alabama: Again we were following the
intent of the House and a custom which is established.
The Chairman: Does the gentleman concede the point of order?
Mr. Andrews of Alabama: We do.
The Chairman: The point of order against the proviso is
sustained, and the Clerk will read.
[[Page 5598]]
Reference to Legislative Provision Elsewhere in Bill
Sec. 22.8 To a bill appropriating emergency funds for the President, an
amendment to make the provisions of another section of the bill
[which contained legislation subject to a point of order]
applicable to the appropriation was held to be legislation.
On May 25, 1959,(5) during consideration in the
Committee of the Whole of the general government matters appropriation
bill (H.R. 7176), a point of order was raised against an amendment to
the following section:
---------------------------------------------------------------------------
5. 105 Cong. Rec. 9006, 9007, 9011, 86th Cong. 1st Sess.
---------------------------------------------------------------------------
Emergency Fund for the President, National Defense
For expenses necessary to enable the President, through such
officers or agencies of the Government as he may designate, and
without regard to such provisions of law regarding the expenditure
of Government funds or the compensation and employment of persons
in the Government service as he may specify, to provide in his
discretion for emergencies affecting the national interest,
security, or defense which may arise at home or abroad during the
current fiscal year, $1,000,000: Provided, That no part of this
appropriation shall be available for allocation to finance a
function or project for which function or project a budget estimate
of appropriation was transmitted pursuant to law during the Eighty-
sixth Congress, and such appropriation denied after consideration
thereof by the Senate or House of Representatives or by the
Committee on Appropriations of either body. . . .
Mr. [Porter] Hardy [Jr., of Virginia]: Mr. Chairman, I offer an
amendment.
The Clerk read as follows:
Amendment offered by Mr. Hardy: On page 5, line 6, strike
the period, insert a colon and the following: ``Provided
further, That section 209 of this Act shall be fully applicable
to this appropriation.''. . .
[Note: Section 209 of the bill provided: ``No part of any
appropriation contained in this Act, or of the funds available for
expenditure by any individual, corporation, or agency included in
this Act, shall be used for publicity or propaganda purposes
designed to support or defeat legislation pending before
Congress.'']
Mr. [Ivor D.] Fenton [of Pennsylvania]: Mr. Chairman, I make a
point of order against the amendment.
The Chairman: (6) Does the gentleman desire to be
heard on the point of order?
---------------------------------------------------------------------------
6. Carl Albert (Okla.).
---------------------------------------------------------------------------
Mr. Fenton: I do, Mr. Chairman. It is legislation on an
appropriation bill. . . .
The Chairman: Does the gentleman from Virginia desire to be
heard on the point of order?
Mr. Hardy: Yes, Mr. Chairman. I do not know how it can be said
that this
[[Page 5599]]
is legislation on an appropriation bill when it refers to a section
of the bill itself.
The Chairman: The Chair will advise the gentleman that that
section may have legislation in it and the fact that the amendment
refers to a section of the bill is not an answer to the point of
order.
Mr. Hardy: That may be true, Mr. Chairman, but I would
certainly have to express the feeling to ask how is it improper
anywhere in a piece of legislation to say that a section of the
legislation is applicable to the rest of it.
The Chairman: Under the rules of the House, any language in an
appropriation bill or any amendment to an appropriation bill which
contains legislation is subject to a point of order. Therefore, the
point of order is sustained.
Exceeding Limitation in Permanent Law
Sec. 22.9 Where a limitation on the amount of an appropriation to be
annually available for expenditure by an agency has become law,
language in a subsequent appropriation bill seeking to change this
limitation on such funds was held to change existing law and
therefore to be legislation on an appropriation bill.
On Mar. 15, 1945,(7) during consideration in the
Committee of the Whole of a general appropriation bill (H.R. 2603), a
point of order was raised against the following provision:
---------------------------------------------------------------------------
7. 91 Cong. Rec. 2305, 79th Cong. 1st Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
Foreign Service Buildings Fund: For the purpose of carrying
into effect the provisions of the act of May 25, 1938, entitled
``An act to provide additional funds for buildings for the use
of the diplomatic and consular establishments of the United
States'' (22 U.S.C. 295a), including the initial alterations,
repair, and furnishing of buildings acquired under said act,
$1,466,000, notwithstanding the amount [of the] limitation in
the act of May 25, 1938 (22 U.S.C. 295a), to remain available
until expended: Provided, That expenditures for furnishing made
from appropriations granted pursuant to the act of May 7, 1926,
and subsequent acts providing funds for buildings for the use
of diplomatic and consular establishments of the United States
shall not be subject to the provisions of section 3709 of the
Revised Statutes.
Mr. [Edward H.] Rees of Kansas: Mr. Chairman, I make a point of
order against the paragraph beginning in line 14, page 16, down to
and including line 3, page 17, on the ground it is a violation of
the basic law.
Appropriation is asked notwithstanding the amount (of the)
limitation in the act of May 25, 1938 (22 U.S. Code, sec. 295a), as
follows:
Sections 292 et seq. authorized the acquisition of properties
abroad for the State Department, and section 295a authorized ``to
be appropriated, in addition to the amount authorized by such act,
an amount not to exceed $5,000,000, of which not more than
$1,000,000 shall be appropriated for any 1 year,'' and so forth.
[[Page 5600]]
No necessity or reason is shown for the lifting of that
$1,000,000 yearly limitation on these appropriations, and the
present proposal amounts to, and is, permanent and repealing
legislation on an appropriation act.
The Chairman: (8) Does the gentleman from Michigan
[Mr. Rabaut] desire to be heard?
---------------------------------------------------------------------------
8. Wilbur D. Mills (Ark.).
---------------------------------------------------------------------------
Mr. [Louis C.] Rabaut: Mr. Chairman, I think the point of order
might apply to the language appearing in lines 20 and 21. That is
because of the excesses.
The Chairman: Permit the Chair to understand the gentleman. The
gentleman concedes that the language in lines 20 and 21 is bad and
subject to a point of order?
Mr. Rabaut: Yes.
The Chairman: Does the gentleman from Kansas [Mr. Rees] insist
on his point of order against the entire paragraph? . . .
Mr. Rees of Kansas: I insist on the point of order to the
entire paragraph, Mr. Chairman.
The Chairman: In view of the fact that certain language in the
paragraph is conceded to be subject to a point of order, the entire
paragraph is subject to a point of order.
The Chair sustains the point of order.
Sec. 22.10 An amendment to an appropriation bill seeking to change a
limitation on expenditures carried in a previous appropriation bill
was held to be legislation and not in order.
On Dec. 6, 1944,(9) during consideration in the
Committee of the Whole of a supplemental appropriation bill (H.R 5587),
a point of order was raised against the following amendment:
---------------------------------------------------------------------------
9. 90 Cong. Rec. 8940, 8941, 78th Cong. 2d Sess.
---------------------------------------------------------------------------
Amendment offered by Mr. [Malcolm C.] Tarver [of Georgia]: On
page 19, line 3, insert a new paragraph, as follows:
Conservation and Use of Agricultural land Resources
``The limitation on expenditures under the 1944 program of
soil-building practices and soil- and water-conservation practices
established in the fourth proviso clause of appropriation
Conservation and use of agricultural land resources, in the
Department of Agriculture Appropriation Act, 1944, is hereby
increased from $300,000,000 to $313,000,000 (exclusive of the
$12,500,000 provided in the Department of Agriculture Appropriation
Act, 1945, for additional seed payments).''
Mr. [John] Taber [of New York]: Mr. Chairman, I make the point
of order that this is legislation on an appropriation bill. The
change of a limitation is a change of existing law, and it has been
so held repeatedly.
Mr. Tarver: Mr. Chairman, the Soil Conservation and Domestic
Allotment Act authorizes the promulgation of programs to cost not
in excess of $500,000,000 annually. In the Agricultural
Appropriation Act of 1944 the Congress undertook to impose a
limitation of $300,000,000 upon the adminis
[[Page 5601]]
trative authorities in the promulgation of the over-all program for
the calendar year 1944, which program included not only payments
and grants for soil-conservation and water-conservation practices,
but the furnishing in advance of seeds, limes, fertilizers, trees
and other agricultural materials to be used in soil-conservation
work and to be charged against the benefits accruing to the farmers
in subsequent crop years.
. . . [T]his amendment, if adopted, does not appropriate or
make available to the administrative authorities one single dollar
of moneys which are not already available to them but it simply
authorizes the use by them of moneys which have been allocated to
the seed, fertilizer, lime, and tree program for the discharge of
liabilities incurred under the program for the payments and grants
for soil- and water-conservation practices. It is, therefore, in
effect a reallocation of the funds which have already been
appropriated by Congress.
I may say that that original allocation of funds was not made
by the Congress in the enactment of the Agricultural Appropriation
Act of 1944, but was made by departmental authorities without
mandatory instructions from the Congress to make such allocations,
although it probably was a matter within their administrative
discretion. So I insist that the Congress by the imposition of the
limitation in the Agricultural Appropriation Act of 1944 did not so
tie its hands as to make it impossible for the same Congress or for
a subsequent Congress to appropriate funds or to review and revise
the allocation of funds already appropriated for the purposes
outlined in the Soil Conservation and Domestic Allotment Act, so
long as it does not exceed the limitation for maximum appropriation
provided in that act, which, as I have pointed out, is
$500,000,000.
I respectfully insist, Mr. Chairman, that the amendment is in
order and the point of order should be overruled.
The Chairman: (10) Does the gentleman from New York
insist on his point of order?
---------------------------------------------------------------------------
10. Herbert C. Bonner (N.C.).
---------------------------------------------------------------------------
Mr. Taber: I do, Mr. Chairman.
The Chairman: The point of order raised by the gentleman from
New York is correct, and the Chair sustains the point of order.
Striking Out Language in Legislation Permitted to Remain
Sec. 22.11 An amendment merely striking out descriptive language in an
appropriation bill may not be subject to a point of order as being
legislation, if germane and if it does not broaden the
appropriation beyond its authorized purpose.
On May 25, 1959, (11) during consideration in the
Committee of the Whole of the general government matters appropriation
bill (H.R. 7176), a point of order was raised against an amendment to
the following language:
---------------------------------------------------------------------------
11. 105 Cong. Rec. 9013, 86th Cong. 1st Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
[[Page 5602]]
Sec. 202. Unless otherwise specified and during the current
fiscal year, no part of any appropriation contained in this or
any other Act shall be used to pay the compensation of any
officer or employee of the Government of the United States
(including any agency the majority of the stock of which is
owned by the Government of the United States) whose post of
duty is in continental United States unless such person (1) is
a citizen of the United States, (2) is a person in the service
of the United States on the date of enactment of this Act who,
being eligible for citizenship, had filed a declaration of
intention to become a citizen of the United States prior to
such date, (3) is a person who owes allegiance to the United
States, or (4) is an alien from the Baltic countries lawfully
admitted to the United States for permanent residence:
Provided, That for the purpose of this section, an affidavit
signed by any such person shall be considered prima facie
evidence that the requirements of this section with respect to
his status have been complied with. . . .
Mr. [James G.] O'Hara of Michigan: Mr. Chairman, I offer an
amendment.
The Clerk read as follows:
Amendment offered by Mr. O'Hara of Michigan: On page 9,
lines 5 and 6, after ``alien'' strike out the words ``from the
Baltic countries''.
Mr. [J. Vaughan] Gary [of Virginia]: Mr. Chairman, a point of
order.
The Chairman: (12) The gentleman will state it.
---------------------------------------------------------------------------
12. Carl Albert (Okla.).
---------------------------------------------------------------------------
Mr. Gary: Mr. Chairman, that is legislation on an appropriation
bill.
The Chairman: The Chair would advise the gentleman that the
amendment simply strikes out certain language in the bill.
The point of order is overruled.
Construing the Use of Funds To Be in Conformity With Existing Law
Sec. 22.12 A provision in a general appropriation bill making
appropriations therein available for purchase of station wagons
without such vehicles being considered as passenger motor vehicles
was held to constitute legislation.
On May 2, 1951, (13) during consideration in the
Committee of the Whole of the Department of the Interior appropriation
bill (H.R. 3709), a point of order was raised against the following
provision:
---------------------------------------------------------------------------
13. 97 Cong. Rec. 4737, 4738, 82d Cong. 1st Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
general provisions--department of the interior
Sec. 102. Appropriations made in this act shall be
available for the purchase of station wagons without such
vehicles being considered as passenger motor vehicles.
Mr. [Paul C.] Jones of Missouri: Mr. Chairman, I make the point
of order against this section on the ground that it is legislation
on an appropriation bill.
Mr. [Henry M.] Jackson of Washington: Mr. Chairman, I concede
the point of order.
The Chairman: (14) The gentleman from Washington
concedes the point of
[[Page 5603]]
order and the Chair sustains the point of order.
---------------------------------------------------------------------------
14. Wilbur D. Mills (Ark.).
---------------------------------------------------------------------------
Sec. 22.13 Where an appropriation bill placed a limit on administrative
expenses, a provision defining certain expenses now or hereafter
incurred as ``non-administrative,'' for purposes of making the
computation under any applicable limitation was held to be
legislative and was ruled out on a point of order.
On Jan. 17, 1940,(15) during consideration in the
Committee of the Whole of the independent offices appropriation bill
(H.R. 7922), a point of order was raised against the following
provision:
---------------------------------------------------------------------------
15. 86 Cong. Rec. 439, 76th Cong. 3d Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
Electric Home and Farm Authority, salaries and
administrative expenses: Not to exceed $600,000 of the funds of
the Electric Home and Farm Authority, established as an agency
of the Government by Executive Order No. 7139 of August 12,
1935, and continued as such agency until June 30, 1941 by the
act of March 4, 1939 (Public Act No. 2, 76th Cong.), shall be
available during the fiscal year 1941 for administrative
expenses of the Authority, including personal services in the
District of Columbia and elsewhere; travel expenses, in
accordance with the Standardized Government Travel Regulations
and the act of June 3, 1926, as amended (5 U.S.C. 821-833); not
exceeding $3,000 for expenses incurred in packing, crating, and
transporting household effects (not exceeding 5,000 pounds in
any one case) of personnel when transferred in the interest of
the service from one official station to another for permanent
duty when specifically authorized in the order directing the
transfer; printing and binding; law books and books of
reference; not to exceed $200 for periodicals, newspapers, and
maps; procurement of supplies, equipment, and services;
typewriters, adding machines, and other labor-saving devices,
including their repair and exchange; rent in the District of
Columbia and elsewhere; and all other administrative expenses:
Provided, That all necessary expenses (including legal and
special services performed on a contract or fee basis, but not
including other personal services) in connection with the
acquisition, care, repair, and disposition of any security or
collateral now or hereafter held or acquired by the Authority
shall be considered as nonadministrative expenses for the
purposes hereof.
Mr. [Francis H.] Case of South Dakota: Mr. Chairman, I make the
point of order against the paragraph that it contains legislation
in the proviso beginning on page 21, line 3, and reading as
follows:
Provided, That all necessary expenses (including legal and
special services performed on a contract or fee basis, but not
including other personal services) in connection with the
acquisition, care, repair, and disposition of any security or
collateral now or hereafter held or acquired by the Authority
shall be considered as nonadministrative expenses for the
purposes hereof.
I make the point of order merely against the proviso, Mr.
Chairman, not against the paragraph.
[[Page 5604]]
The Chairman: (16) Does the gentleman from Virginia
desire to be heard on the point of order?
---------------------------------------------------------------------------
16. Lindsay C. Warren (N.C.).
---------------------------------------------------------------------------
Mr. [Clifton A.] Woodrum of Virginia: I do not, Mr. Chairman.
The Chairman: As the language pointed out by the gentleman from
South Dakota [Mr. Case] attempts to construe existing law, the
Chair believes the point of order is well taken. The point of order
is, therefore, sustained, and the proviso is stricken out.
Change in Contract Authorization
Sec. 22.14 Language in an appropriation bill seeking to change a
contract authorization contained in a previous appropriation bill
passed by another Congress was held to be legislation and not a
retrenchment of funds in the bill.
On Apr. 25, 1947,(17) during consideration in the
Committee of the Whole of the Department of the Interior appropriation
bill for fiscal year 1948 (H.R. 3123), the following point of order was
raised:
---------------------------------------------------------------------------
17. 93 Cong. Rec. 4098, 80th Cong. 1st Sess.
---------------------------------------------------------------------------
Mr. [Francis H.] Case of South Dakota: Mr. Chairman, I wish to
reserve the point of order first in order that I may get some
information before I make the point of order finally, and that is
with respect to the language which appears at the bottom of page
51, which reads as follows:
Provided further, That the contract authorization of
$15,000,000 contained in the Interior Department Appropriation
Act, fiscal year 1946, is hereby reduced to $9,750,000.
My point of order, Mr. Chairman, is that that is legislation
amending a previous act and not within the purview of this bill
making appropriations for fiscal 1948. It constitutes legislation
on an appropriation bill for it destroys existing legislation.
Before I make the point of order, may I ask the chairman of the
committee what the reason is for carrying that language? I feel
that the development of the synthetic liquid fuel program is very
essential to national defense and is probably the cheapest money we
can spend in that direction.
Mr. [Robert F.] Jones of Ohio: The purpose of this language is
to limit the amount to be expended further on this project to the
authorization provided in the basic act. In other words, the amount
remaining after this appropriation will be the amount of
$9,750,000, and will tie the entire appropriation to the basic
authorization.
Mr. Case of South Dakota: What was the reason, then, for the
increase of the authorization to $15,000,000 in the act of 1946 and
establishment of contract authority?
Mr. Jones of Ohio: That was to tie the appropriations to the
$30,000,000 authorization
Mr. Case of South Dakota: Mr. Chairman, having introduced a
bill which seeks to accomplish about that very thing, I am
constrained to make the point of order and do make the point of
order.
[[Page 5605]]
The Chairman: (18) Does the gentleman from Ohio
desire to be heard on the point of order?
---------------------------------------------------------------------------
18. Earl C. Michener (Mich.).
---------------------------------------------------------------------------
Mr. Jones of Ohio: Mr. Chairman, the only purpose of the
language is to limit the amount appropriated over all to the
$30,000,000 authorization. It seems to me it is merely a
restatement of the basic law and clearly in order under the Holman
rule because on its face it saves money.
The Chairman: This language changes a contract authorization
contained in a previous appropriation bill passed by another
Congress. The Chair sustains the point of order.
Delegation of Statutory Authority
Sec. 22.15 Language in an appropriation bill providing that the head of
the department or establishment concerned may delegate to such
officials his authority to authorize payment of expenses of travel
and of transportation of household goods and immediate families of
civilian officers and employees on change of official station was
held legislation on an appropriation bill and not in order.
On Feb. 8, 1945,(19) during consideration in the
Committee of the Whole of the independent offices appropriation bill
(H.R. 1984), a point of order was raised against the following
provision:
---------------------------------------------------------------------------
19. 91 Cong. Rec. 965, 79th Cong. 1st Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
(e) During the fiscal year 1946 the head of the department
or establishment concerned may delegate to such officials as he
may designate his authority to authorize payment of expenses of
travel and of transportation of household goods and immediate
families of civilian officers and employees on change of
official station.
Mr. [Francis H.] Case of South Dakota: Mr. Chairman, I make the
point of order against the paragraph, particularly the words ``may
designate,'' that it is legislation on an appropriation bill, I
believe it is a matter that ought to be covered by general
legislation.
Mr. [Clifton A.] Woodrum of Virginia: Mr. Chairman, I concede
the point of order.
Bestowing Discretion to Waive Law
Sec. 22.16 Language in an appropriation bill providing funds for
additional court facilities and waiving provisions of existing law
where this is ``determined to be necessary by the judicial council
of the appropriate circuit'' was conceded to be legislation and was
ruled out on a point of order.
[[Page 5606]]
On Sept. 15, 1961,(20) during consideration in the
Committee of the Whole of a supplemental appropriation bill (H.R.
9169), a point of order was raised against the two provisions in the
following paragraph:
---------------------------------------------------------------------------
20. 107 Cong. Rec. 19729, 87th Cong. 1st Sess.
---------------------------------------------------------------------------
Additional Court Facilities
For expenses, not otherwise provided for, necessary to provide,
directly or indirectly, additional space, facilities and courtrooms
for the judiciary, including alteration and extension of
Government-owned buildings and acquisition of additions to sites of
such buildings; rents; furnishings and equipment; repair and
alteration of rented space; moving Government agencies in
connection with the assignment and transfer of space; preliminary
planning; preparation of drawings and specifications by contract or
otherwise; and administrative expenses; $1,000,000, to remain
available until expended: Provided, That buildings constructed
pursuant to the Public Buildings Purchase Contract Act of 1954 (40
U.S.C. 356) shall be considered to be Government-owned buildings
for the purposes of this appropriation: Provided further, That this
appropriation shall be available for the provision of court
facilities in places which are otherwise subject to the
restrictions of section 142 of title 28, United States Code, but
only if such facilities are determined to be necessary by the
judicial council of the appropriate circuit.
Mr. [Clare E.] Hoffman of Michigan: Mr. Chairman, I make the
point of order against the language on page 11 from line 6 on down
to the bottom of the page, including line 25. It is legislation It
changes existing legislation. . . .
Mr. [Albert] Thomas [of Texas]: Mr. Chairman, I cannot do
anything but concede the point of order.
The Chairman: (1) The gentleman from Texas concedes
the point of order. The point of order is sustained.
---------------------------------------------------------------------------
1. Oren Harris (Ark.).
---------------------------------------------------------------------------
Delegating Authority to Suspend Existing Law
Sec. 22.17 To a general appropriation bill an amendment providing that
in reducing personnel the determination as to which individual
employees shall be retained shall be made by the head of the agency
concerned was held to be legislation.
On June 28, 1952,(2) during consideration in the
Committee of the Whole of a supplemental appropriation bill (H.R.
8370), a point of order was raised against the following amendment:
---------------------------------------------------------------------------
2. 98 Cong. Rec. 8503, 82d Cong. 2d Sess.
---------------------------------------------------------------------------
Amendment offered by Mr. [Abraham A.] Ribicoff [of Connecticut]
to the amendment offered by Mr. [Ben F.] Jensen [of Iowa]: After
(b), No. 3, add a new paragraph as follows:
``4. That 90 days after the enactment of this act, the number
of civilian em
[[Page 5607]]
ployees who are United States citizens, receiving compensation or
allowances from the administrative expense appropriations provided
by this act, employed in the United States and overseas by or
assigned to the Mutual Security Agency, or employed by or assigned
to the Department of State or the Department of Defense for
carrying out programs the appropriations for which are provided by
this act, and the military personnel assigned to such programs,
shall be in the aggregate at least 15 percent less than the number
so employed or assigned on June 1, 1952, except for such personnel
of the Department of Defense engaged in the manufacturing, repair,
rehabilitation, packing, handling, crating, or delivery of
materiel: Provided further, That after the Director has determined
the reduction to be effected in each agency, the determination as
to which individual employees shall be retained shall be made by
the head of the agency concerned.''. . .
The Chairman: (3) Does the gentleman from Virginia
make his point of order?
---------------------------------------------------------------------------
3. Francis E. Walter (Pa.).
---------------------------------------------------------------------------
Mr. [J. Vaughan] Gary [of Virginia]: Yes. Mr. Chairman, as I
understand the amendment, it leaves the discharge of employees
entirely to the Administrator, which contravenes existing laws with
reference to veterans' preference and also the civil-service laws.
It is legislation; it contravenes existing legislation.
Mr. [John] Taber [of New York]: Mr. Chairman, the point of
order comes too late; the amendment had been debated.
Mr. Gary: I will say to the gentleman from New York that I
reserved the point of order at the time the amendment was offered.
The Chairman: The Chair is ready to rule. Part of the language
of the amendment offered by the gentleman from Connecticut, after
the proviso, reads:
That after the Director has determined the reduction to be
effected in each agency, the determination as to which
individual employees shall be retained shall be made by the
head of the agency concerned.
This portion of the amendment does, in the opinion of the
Chair, alter the civil-service laws and laws relating to veterans'
preferences, and therefore constitutes legislation on an
appropriation bill. The point of order is sustained.
Funding Through Different Department
Sec. 22.18 Where a law authorizes an appropriation to one department
for the purpose of prosecuting a certain activity itself or through
another department it was held that an amendment proposing to
appropriate money directly to the latter department for the purpose
of prosecuting such activity changed existing law and was,
therefore, not in order on an appropriation bill.
On Mar. 25, 1937,(4) during consideration in the
Committee of the
[[Page 5608]]
Whole of a general appropriation bill providing funds for the
Department of Labor (H.R. 5779), a point of order was raised against
the following amendment:
---------------------------------------------------------------------------
4. 81 Cong. Rec. 2775-77, 75th Cong. 1st Sess.
---------------------------------------------------------------------------
Mr. [James M.] Mead [of New York]: Mr. Chairman, I offer an
amendment, which I send to the Clerk's desk.
The Clerk read as follows:
Page 103, line 8, after the word ``labor'', insert ``to
enable the Division of Labor Standards in the Department of
Labor to engage in a program to formulate and promote the
furtherance of standards of apprenticeship and apprentice
training, $50,000.''
Mr. [Robert L.] Bacon [of New York]: Mr. Chairman, I make a
point of order against the amendment. . . .
The Chairman: (5) The Chair is ready to rule.
---------------------------------------------------------------------------
5. Frank H. Buck (Calif.).
---------------------------------------------------------------------------
The gentleman from New York [Mr. Mead] has offered an amendment
to insert a new paragraph, as follows:
To enable the Division of Labor Standards in the Department
of Labor to engage in a program to formulate and promote the
furtherance of standards of apprenticeship and apprentice
training, $50,000.
To this amendment the gentleman from New York [Mr. Bacon] has
made the point of order that the amendment is not germane to the
paragraph to which it is offered, and the further point of order
that it is legislation on an appropriation bill.
Unquestionably the amendment is not germane to the paragraph to
which it is offered, and on that ground the Chair could sustain the
point of order. It is the understanding of the Chair, however, that
the gentleman from New York [Mr. Mead] under these circumstances
would desire to return to the appropriate paragraph by unanimous
consent of the Committee and again offer the amendment, and for
this reason the Chair desires to state that, after an examination
of the authorities and the precedents existing and of the act of
February 23, 1917, which the gentleman from New York has cited, the
Chair feels that the rules and precedents of the House have well
established that a general statement of the purpose for which a
department is established, as the Department of Labor, as set forth
in its organic act, is not to be construed as an authorization for
an appropriation which is not definitely and specifically provided
for either in that act or in subsequent legislation creating
bureaus within such Department. No authority has been cited to the
Chair, other than the new suggestion made by the gentleman from New
York with reference to the Vocational Education Act, which would
take this particular amendment out of the ruling cited by the
gentleman from New York (Mr. Bacon) made by Chairman Garner in the
Committee of the Whole House some years ago. The Vocational
Education Act, insofar as it applies to the point raised by the
gentleman from New York, reads as follows:
When the Interior Department deems it advisable, such
studies, investigations, and reports concerning trades and
industries for purposes of trade and industrial education may
be made in cooperation with or through the Department of Labor.
The act, however, makes such investigations, studies, and so
forth, de
[[Page 5609]]
pendent upon the determination of the Department of Interior for
which the pending bill does not purport to make any appropriation.
Without desiring to bind any future occupant of the chair who
may preside over the Interior Department appropriation bill as to
the germaneness of such an amendment as the gentleman from New York
offers today, the Chair feels it is entirely beyond the scope of
the present bill and that it would be definite legislation on an
appropriation bill, transferring from the Interior Department to
the Department of Labor these particular activities which would be
obnoxious to the rules of the House. For this reason the Chair
sustains the point of order.
Granting Discretion to Approve Expenditure
Sec. 22.19 Language in a paragraph of a general appropriation bill
providing for the expenditure of funds therein ``on the approval or
authority of the Secretary of the Air Force, and payment may be
made on his certificate of necessity for confidential military
purposes'' was held to change existing law and was ruled out in
violation of Rule XXI clause 2 when the Committee on Appropriations
failed to cite statutory authority for that method of payment.
On Nov. 30, 1973,(6) during consideration in the
Committee of the Whole of the Defense Department appropriation bill
(H.R. 11575), a point of order was raised against the following
provision:
---------------------------------------------------------------------------
6. 119 Cong. Rec. 38821, 38822, 93d Cong. 1st Sess.
---------------------------------------------------------------------------
The Chairman: (7) the Clerk will read.
---------------------------------------------------------------------------
7. Daniel D. Rostenkowski (Ill.).
---------------------------------------------------------------------------
The Clerk read as follows:
Operation and Maintenance, Air Force
For expenses, not otherwise provided for, necessary for the
operation and maintenance of the Air Force, as authorized by
law; as follows: for Strategic forces, $1,124,154,000; for
General purpose forces, $1,014,091,- 000; for Intelligence and
communications, $532,343,000; for Airlift and sealift,
$179,240,000; for Central supply and maintenance,
$2,318,938,000; for Training operations and other general
personnel activities, $517,736,000; for Medical activities,
$377,398,000; for Administration and associated activities,
$211,467,000; and for the Support of other nations,
$256,733,000; in all: $6,532,100,000: Provided, That of the
total amount of this appropriation, not to exceed $2,343,000
can be used for emergencies and extraordinary expenses, to be
expended on the approval or authority of the Secretary of the
Air Force, and payment may be made on his certificate of
necessity for confidential military purposes: Provided further,
That not less than $215,000,000 of the total amount of this
appropriation shall be available only for the maintenance of
real property facilities. . . .
Mr. [Robert C.] Eckhardt [of Texas]: Mr. Chairman, I make a
point
[[Page 5610]]
of order on the language commencing on page 8, line 15, ``to be
expended on the approval of authority of the Secretary of the Air
Force, and payment may be made on his certificate of necessity for
confidential military purposes:''.
The point of order is based on rule XXI, clause 2, in that such
language is a provision in an appropriation bill for an existing
law and is not contained in the authorization legislation and for
other reasons. It is in violation of rule XXI. . . .
Mr. [William E.] Minshall of Ohio: Mr. Chairman, I cannot cite
the actual legislative authority, but we do have general
legislative authority for just this provision in the bill. It has
been in the bill for many, many previous years.
The Chairman: Did the gentleman from Ohio state that he cannot
cite any authority for this language?
Mr. Minshall of Ohio: Mr. Chairman, I said I could not, right
at this moment. It has been in the previous bill for many, many
year.
The Chairman: The language to which the point of order is
directed is the language the gentleman from Texas cited on line 15,
as follows:
To be expended on the approval or authority of the
Secretary of the Air Force and payment may be made on his
certificate of necessity for confidential military purposes.
If there is no authority in law for this language, the Chair
holds that it must be construed as legislation in violation of
clause 2, rule XXI.
The Chair sustains the point of order.
Sufficiency of Vouchers for Expenditure
Sec. 22.20 In a paragraph appropriating funds for general operating
expenses for the District of Columbia, a proviso stating that
certificates of the Commissioner and Chairman of the City Council
shall be sufficient vouchers for expenditure from that
appropriation was conceded to be legislation in violation of Rule
XXI clause 2 and was ruled out on a point of order.
On June 7, 1972,(8) during consideration in the
Committee of the Whole of the District of Columbia appropriation bill
(H.R. 15259), the following point of order was raised:
---------------------------------------------------------------------------
8. 118 Cong. Rec. 19900, 19901, 92d Cong. 2d Sess.
---------------------------------------------------------------------------
Mr. [Durward G.] Hall [of Missouri]: Mr. Chairman, I raise a
point of order.
The Chairman: (9) The gentleman from Missouri will
state his point of order.
---------------------------------------------------------------------------
9. Dante B. Fascell (Fla.).
---------------------------------------------------------------------------
Mr. Hall: Mr. Chairman, my point of order should lie on page 3,
line 8, following the colon, against the phrase:
Provided, That the certificate of the Commissioner (for
$2,500) and of the Chairman of the City Council (for $2,500)
shall be sufficient voucher for expenditures from this
appropriation for such purposes, exclusive of ceremony
expenses, as they may respectively deem necessary:
In other words, Mr. Chairman, I am raising a point of order
against all after the colon on line 8, through the colon on line
13.
[[Page 5611]]
This was not authorized, and it is an appropriation bill
without authorization
The Chairman: The Chair will state to the gentleman from
Missouri that that part of the bill to which the gentleman has
raised his point of order was previously read prior to the
unanimous-consent request.
Mr. Hall: But, Mr. Chairman, I submit that the unanimous-
consent request was granted to the entire bill, that it be open to
amendment and open for points of order at any point. This request
was granted and therefore I have gone back to this point of order.
The Chairman: Does the gentleman from Kentucky desire to be
heard on the point of order raised by the gentleman from Missouri?
Mr. [William H.] Natcher [of Kentucky]: Mr. Chairman, the
gentleman from Missouri (Mr. Hall) is correct, and we concede the
point of order.
The Chairman: The point of order is conceded, and the point of
order is sustained.(10)
---------------------------------------------------------------------------
10. See also 119 Cong. Rec. 20068, 93d Cong. 1st Sess., June 18, 1973
[H.R. 8658].
---------------------------------------------------------------------------
Various Grounds for Objection
Sec. 22.21 An entire title in an appropriation bill for the Atomic
Energy Commission which included, in part, provisions for (1) the
employment of aliens; (2) rental of space upon a determination of
need by the Administrator of General Services; (3) use of
unexpended balances of previous years; (4) transfer of sums to
other agencies; (5) a sum to remain available until expended; (6)
reappropriation of funds for plant and equipment; and (7) a power
reactor project not authorized by law, was held to be in violation
of Rule XXI clause 2.
On July 24, 1956,(11) during consideration in the
Committee of the Whole of the second supplemental appropriation bill, a
point of order was raised against a title containing provisions as
described above. The proceedings were as follows:
---------------------------------------------------------------------------
11. 102 Cong. Rec. 14289, 84th Cong. 2d Sess.
---------------------------------------------------------------------------
Mr. [Clarence] Cannon [of Missouri]: Mr. Chairman, I ask
unanimous consent that the bill be considered as read and now be
open to points of order and amendments to any part of the bill.
The Chairman: (12) Is there objection to the request
of the gentleman from Missouri?
---------------------------------------------------------------------------
12. Oren Harris (Ark.).
---------------------------------------------------------------------------
There was no objection.
Mr. Cannon: Mr. Chairman, I make a point of order against title
I and also the item for the Bureau of Reclamation on page 7.
The Chairman: Is the gentleman making a point of order against
the entire title I?
[[Page 5612]]
Mr. Cannon: Title I and the material indicated as well as on
page 7.
The Chairman: Let us pass on one point of order at a time,
please. Does anybody wish to be heard on the point of order made by
the gentleman from Missouri [Mr. Cannon] against title I?
Mr. [Walter H.] Judd [of Minnesota]: On what basis is the point
of order made?
Mr. Cannon: Not authorized by law and is legislation on an
appropriation bill.
Mr. Judd: A lot of it is authorized by law.
Mr. [John] Taber [of New York]: Mr. Chairman, the items in
title I, with the exception of the several provisos, are entirely
within the statute and are authorized. I thought I had an
understanding that the only item to go out was the $400 million
item, but as long as the point of order is made on that, I will
offer an amendment to cover everything except that last proviso
after the point of order is disposed of.
Mr. Cannon: Mr. Chairman, title I, in its entirety, is subject
to a point of order. Part of the paragraph being subject to a point
of order, the entire paragraph is subject to a point of order.
Title I is subject to a point of order on the ground that it is
legislation on an appropriation bill.
The Chairman: The Chair is prepared to rule. The gentleman from
Missouri makes the point of order against title I of the pending
bill on the ground that it is legislation on an appropriation bill
or contains appropriations not authorized by law. The Chair has
gone through title I and has observed that every paragraph in it
either contains legislation on an appropriation bill, which is in
violation of the rules of the House, or contains appropriations
which are not authorized by law, which is also in violation of the
rules of the House.
The Chair sustains the point of order.
Change in Policy by Negative Restriction on Use of Funds
Sec. 22.22 While a limitation may not involve a permanent change of
existing law, the allegation that it may result in a change of
administrative policy would not itself render it subject to a point
of order if only a negative limitation on use of funds.
On May 11, 1960,(13) during consideration in the
Committee of the Whole of the Agriculture Department appropriation bill
(H.R. 12117), a point of order was raised against the following
section:
---------------------------------------------------------------------------
13. 106 Cong. Rec. 10053, 10054, 86th Cong. 2d Sess.
---------------------------------------------------------------------------
Sec. 408. No part of the funds appropriated by this Act shall
be used to pay the compensation of any employee or officer of the
Department, except the Secretary of Agriculture, who, in addition
to other regularly assigned responsibilities, serves as a member of
the Board of Directors or as an officer of the Commodity Credit
Corporation after February 1, 1961.
[[Page 5613]]
Mr. [Paul] Brown of Georgia: Mr. Chairman, a point of order.
The Chairman: (14) The gentleman will state it.
---------------------------------------------------------------------------
14. Paul J. Kilday (Tex.).
---------------------------------------------------------------------------
Mr. Brown of Georgia: Mr. Chairman, section 408 provides that
none of the funds appropriated by H.R. 12117, making appropriations
for the Department of Agriculture and Farm Credit Administration,
shall be used to pay the salary of any officer or employee of the
Department--except the Secretary--who serves as a member of the
Board of Directors of CCC, or as an officer of CCC, in addition to
other regular duties with the Department.
This reverses a decision made by the Banking and Currency
Committee and the Congress in 1949, when the CCC Charter Act was
amended to strike out a similar restriction which had been enacted
in 1948. It is, therefore, legislation, and the mere fact it is put
in the form of a limitation on the use of funds appropriated by the
bill does not save it. As paragraph 1691, volume 7, of Cannon's
Precedents of the House of Representatives puts it:
The purpose rather than the form of a proposed limitation
is the proper criterion by which its admissibility should be
judged, and if its purpose appears to be a restriction of
executive discretion to a degree that may be fairly termed a
change of policy rather than a matter of administrative detail
it is not in order.
Again in paragraph 1606 of the same volume, the following is
found:
Whenever a purported limitation makes unlawful that which
before was lawful or makes lawful that which before was
unlawful it changes existing law and is not in order on an
appropriation bill.
A proper limitation is negative and in the nature of a
veto, and when it assumes affirmative form by direction to an
executive in the discharge of his duties under existing law it
ceases to be a limitation and becomes legislation.
Section 408 in effect requires the Secretary to take
affirmative action. To carry out the farm programs financed by CCC,
the Secretary would have to appoint new Board members, recruited
from private life, to replace the six Department officers other
than himself who now serve on the Board. He would also have to
recruit and appoint new personnel to serve as officers of the
Corporation. This not only means the section constitutes
legislation, but also means it is not entitled to the protection of
the Holman rule, because it would not save the Government money. On
the contrary, it would require hiring new employees at additional
expense to the Government.
The Chairman: Does the gentleman from Mississippi [Mr. Whitten]
desire to be heard on the point of order?
Mr. [Jamie L.] Whitten: Mr. Chairman, the section clearly
provides a limitation on the use of funds that are appropriated in
this bill. It does not change the Commodity Credit Corporation
charter. It does not change any basic law. It just simply limits
what the money in this bill can be used for. It has been my
experience and observation during the years here that the Chair has
many times said that it is a negative limitation on the use of
money and that it is clearly in order, and on that I rest the
committee's position.
[[Page 5614]]
The Chairman: The Chair is prepared to rule.
The gentleman from Georgia [Mr. Brown] makes a point of order
against the language in section 408 of the bill on the ground that
it constitutes legislation on an appropriation bill.
The Chair has had an opportunity to examine the precedents in
this connection, including the precedents to which the gentleman
from Georgia has referred and from which he has read. The Chair
would also refer to paragraph 1694 of Cannon's Precedents, volume
7, the language being:
While a limitation may not involve change of existing law
or affirmatively restrict executive direction, it may properly
effect a change of administrative policy and still be in order.
The Chair has examined additional precedents bearing on this
question. The Chair is constrained to hold that section 408 is a
restriction on a manner in which the funds can be used, and
constitutes a negative limitation, and therefore, overrules the
point of order.
Parliamentarian's Note: There are other recent rulings in which the
Chair has chosen to rely on the headnote in 7 Cannon's Precedents
Sec. 1694 rather than on
Sec. 1691 in permitting limitations on use of funds. See 118 Cong. Rec.
30749, 30750, 92d Cong. 2d Sess., Sept. 14, 1972; 120 Cong. Rec.
20601, 20602, 93d Cong. 2d Sess., June 21, 1974; 120 Cong. Rec.
34716, 93d Cong. 2d Sess., Oct. 9, 1974.
Changing Limitation in Prior Law
Sec. 22.23 A limitation in an appropriation bill having become law, a
provision in a subsequent appropriation bill for that fiscal year
seeking to change this limitation was conceded to be legislation
and was ruled out on a point of order.
On Aug. 26, 1960,(15) during consideration in the
Committee of the Whole of a supplemental appropriation bill (H.R.
12740), the following point of order was raised:
---------------------------------------------------------------------------
15. 106 Cong. Rec. 17899, 86th Cong. 2d Sess.
---------------------------------------------------------------------------
Mr. [H. R.] Gross [of Iowa]: Mr. Chairman, I make a point of
order against the language in the bill on page 7, beginning on line
11, running through line 4 on page 8, as being legislation on an
appropriation bill. The language referred to is as follows:
Foreign Claims Settlement Commission
Salaries and expenses
For an additional amount for ``Salaries and expenses,''
including allowances and benefits similar to those provided by
title IX of the Foreign Service Act of 1946, as amended, as
determined by the Commission . . . hire of passenger motor
vehicles
[[Page 5615]]
abroad; insurance on official motor vehicles abroad; and
advances of funds abroad; $145,000: Provided, That the
limitation under this head in the General Government Matters
Appropriation Act, 1961, on the amount available for expenses
of travel, is increased from ``$10,000'' to ``$20,000''.
The Chairman: (16) Does the gentleman from Texas
desire to be heard on the point of order?
---------------------------------------------------------------------------
16. Herbert C. Bonner (N.C.).
---------------------------------------------------------------------------
Mr. [Albert] Thomas [of Texas]: Mr. Chairman, the gentleman
from Iowa is right. This is the first time that these people have
operated overseas and they asked for a little oversea allowance The
Bureau of the Budget recommended it. We did not feel that we wanted
to be the least bit oppressive on it. Mr. Chairman, the point of
order is conceded.
The Chairman: The point of order made by the gentleman from
Iowa is sustained.(17)
---------------------------------------------------------------------------
17. See also 111 Cong. Rec. 7128, 89th Cong. 1st Sess., Apr. 6, 1965
[H.R. 7091].
---------------------------------------------------------------------------
Provision Applicable ``Hereafter''
Sec. 22.24 Language in an appropriation bill imposing duties upon an
executive not contemplated by law is legislation and not in order.
On Mar. 30, 1955,(18) during consideration in the
Committee of the Whole of the independent offices appropriation bill
(H.R. 5240), the following point of order was raised:
---------------------------------------------------------------------------
18. 101 Cong. Rec. 4067, 4068, 84th Cong. 1st Sess.
---------------------------------------------------------------------------
Mr. [Clare E.] Hoffman of Michigan: Mr. Chairman, I make a
point of order against the language on page 20 of the bill at line
18 running through line 1, on page 21.
The Chairman: (19) The gentleman will state the
point of order.
---------------------------------------------------------------------------
19. Albert Rains (Ala.).
---------------------------------------------------------------------------
Mr. Hoffman of Michigan: Mr. Chairman, the proviso beginning on
page 20 of H.R. 5240 at line 18 and running through line 1, on page
21, as follows: ``Provided, That the clause under this head in the
`Independent Offices Appropriation Act, 1955,' relating to the
Administrator's general supervision and coordination
responsibilities, is amended to read as follows: `and the
Administrator's general supervision and coordination
responsibilities under Reorganization Plan No. 3 of 1947 shall
hereafter carry full authority, where applicable, to promote
economy, efficiency, and fidelity in the operations of the Housing
and Home Finance Agency,' '' is legislation on an appropriation
bill in that--
First. It changes existing law--see House Report No. 304, page
17--by amending permanent legislation enacted in the Independent
Offices Appropriation Act, 1955, and by amending Reorganization
Plan No. 3 of 1947.
Second. It imposes new duties on an administrative official. .
. .
Mr. [Albert] Thomas [of Texas]: Mr. Chairman, we concede the
point of order.
The Chairman: The Chair is ready to rule. Obviously, the
language
[[Page 5616]]
against which the point of order is made is legislation upon an
appropriation bill and the point of order is sustained.
Proponent of Amendment Has Burden if Point of Order Is Raised
Requiring New Execution Determination
Sec. 22.25 The burden of proof is on the proponent of an amendment to a
general appropriation bill to show that a proposed executive
determination is required by existing law, and the mere recitation
that the determination is to be made pursuant to existing law and
regulations, absent a citation to the law imposing that
responsibility, is not sufficient to overcome a point of order that
the amendment constitutes legislation.
On Sept. 16, 1980,(20) during consideration in the
Committee of the Whole of H.R. 8105, the Defense Department
appropriation bill, a point of order was sustained against an amendment
offered to a provision of the bill as indicated below:
---------------------------------------------------------------------------
20. 126 Cong. Rec. 25606, 25607, 96th Cong. 2d Sess.
---------------------------------------------------------------------------
Provided further, That no funds herein appropriated shall be
used for the payment of a price differential on contracts hereafter
made for the purpose of relieving economic dislocations: Provided
further, That none of the funds appropriated in this Act shall be
used except that, so far as practicable, all contracts shall be
awarded on a formally advertised competitive bid basis to the
lowest responsible bidder.
The Clerk read as follows:
Amendment offered by Mr. [Joseph P.] Addabbo [of New York]:
Page 41, line 23, strike out ``Provided further'' and all that
follows through ``economic dislocations:'' on page 42, line 1,
and insert in lieu thereof ``Provided further, That no funds
herein appropriated shall be used for the payment of a price
differential on contracts hereafter made for the purpose of
relieving economic dislocations other than contracts made by
the Defense Logistics Agency and such other contracts of the
Department of Defense as may be determined by the Secretary of
Defense pursuant to existing laws and regulations as not to be
inappropriate therefor by reason of national security
considerations:''. . . .
Mr. [Jack] Edwards of Alabama: Mr. Chairman, I make a point of
order against the amendment as legislation in a general
appropriation bill, and therefore in violation of clause 2 of rule
XXI.
I respectfully direct the attention of the Chair to Deschler's
Procedure, chapter 25, section 11.2 which states:
It is not in order to make the availability of funds in a
general appropriation bill contingent upon a substantive
determination by an executive official which he is not
otherwise required by law to make.
I also respectfully direct the attention of the Chair to
section 843 of the House Manual, which states in part:
[[Page 5617]]
The fact that a limitation on the use of funds may . . .
impose certain incidental burdens on executive officials does
not destroy the character of the limitation as long as it does
not directly amend existing law and is descriptive of functions
and findings already required to be undertaken under existing
law.
The amendment prohibits the payment of price differentials on
contracts except ``as may be determined by the Secretary of Defense
pursuant to existing laws and regulations as not to be
inappropriate therefor by reason of national security
considerations.''
The exception makes the availability of funds for payment of
price differentials contingent on a substantive determination by
the Secretary of Defense which is not now required under current
law.
Although the determination is limited ``pursuant to existing
laws and regulations'', there is no existing law at the present
time, and if this amendment is enacted, it will constitute the
existing law, and require this new determination. . . . Mr.
Chairman, the amendment prohibits the payment of price
differentials on contracts except--and I quote:
As may be determined by the Secretary of Defense pursuant
to existing laws and regulations as not to be inappropriate
therefor by reason of national security considerations.
The exception makes the availability of funds for payment of
price differentials contingent on a substantive determination by
the Secretary of Defense which is not now required under the
current law. Although the determination is limited ``pursuant to
existing laws and regulations,'' there is no existing law at the
present time, and if this amendment is enacted, it will constitute
the existing law and require this new determination.
I would urge that the Chair rule that this amendment is out of
order. . . .
The Chairman: (1) The Chair is ready to rule.
---------------------------------------------------------------------------
1. Daniel D. Rostenkowski (Ill.).
---------------------------------------------------------------------------
The amendment would appear to call for a determination by the
Secretary of Defense as to appropriateness by reason of national
security considerations. Unless the gentleman from New York (Mr.
Addabbo) can cite to the Chair those provisions of existing law
requiring such determinations with respect to defense contracts,
the Chair must conclude that the amendment would impose new duties
upon the Secretary and would constitute legislation.
Mr. Addabbo: I accept the point of order, Mr. Chairman.
The Chairman: The Chair has sustained the point of order.
Amendment's Proponent Carries Burden of Showing No Change in Existing
Law
Restrictions on Apportionment of Funds as Distinguished From Limitation
on Amount, Purpose, or Object of Funds
Sec. 22.26 The proponent of an amendment to a general appropriation
bill has the burden of proving that the amendment does not change
existing law and, if in the form of a limitation, falls
[[Page 5618]]
within the category of permissible limitations described by
precedents arising under Rule XXI clause 2; and if the amendment is
susceptible to more than one interpretation, it is incumbent on the
proponent to show that it is not in violation of the rule.
On July 28, 1980,(2) the Committee of the Whole having
under consideration the Department of Housing and Urban Development and
independent agencies appropriation bill (H.R. 7631), an amendment was
offered and ruled upon as follows:
---------------------------------------------------------------------------
2. 126 Cong. Rec. 19924, 19925, 96th Cong. 2d Sess.
---------------------------------------------------------------------------
Mr. [Herbert E.] Harris [II, of Virginia]: Mr. Chairman, I
offer an amendment.
The Clerk read as follows:
Amendment offered by Mr. Harris: Page 45, after line 23,
insert the following:
Sec. 413. No more than an amount equal to 20 percent of the
total funds appropriated under this Act for any agency for any
fiscal year and apportioned to such agency pursuant to section
3679 of the Revised Statutes of the United States (31 U.S.C.
665) may be obligated during the last two months of such fiscal
year. . . .
The Chairman: (3) Does the gentleman from Indiana
[Mr. Myers] insist on his point of order?
---------------------------------------------------------------------------
3. Elliott H. Levitas (Ga.).
---------------------------------------------------------------------------
Mr. [John T.] Myers of Indiana: I do, Mr. Chairman.
Mr. Chairman, the gentleman has offered an amendment to limit
the appropriations to a specific time; but I respectfully suggest
that the fact the gentleman has added the words, ``No more than''
is still not, in fact, a limitation. . . .
Mr. Chairman, the fact that you are limiting here, not
directing, but limiting the authority to the last 2 months how much
may be spent takes away the discretionary authority of the
Executive which might be needed in this case. It clearly is more
than an administrative detail when you limit and you take away the
right of the Executive to use the funds prudently, to take
advantage of saving money for the Executive, which we all should be
interested in, and I certainly am, too; but Mr. Chairman, rule 843
provides that you cannot take away that discretionary authority of
the Executive.
This attempt in this amendment does take that discretionary
authority to save money, to wisely allocate money prudently and it
takes away, I think, authority that we rightfully should keep with
the Executive, that you can accumulate funds and spend them in the
last quarter if it is to the advantage of the taxpayer and the
Executive. . . .
Mr. Harris: . . . Mr. Chairman, let me first address the last
point, probably because it is the weakest that the gentleman has
made with respect to his point of order.
With respect to the discretion that we are in any way limiting
the President, we cannot limit the discretion which we have not
given the President directly through legislation. There is no
discretion with regard to legislation
[[Page 5619]]
that we have overtly legislated and given to the President.
Mr. Chairman, section 665(c)(3) of title 31 of the United
States Code, which states the following:
Any appropriation subject to apportionment shall be
distributed as may be deemed appropriate by the officers
designated in subsection (d) of this section to make
apportionments and reapportionments.
Clearly grants agency budget officers the discretionary
authority to apportion the funds in a manner they deem appropriate.
My amendment would not interfere with this authority to apportion
funds. On the contrary, my amendment reaffirms this section of the
United States Code, as Deschler's Procedures, in the U.S. House of
Representatives, chapter 26, section 1.8, states:
The provision of the rule forbidding in any general
appropriation bill a ``provision changing existing law'' is
construed to mean the enactment of law where none exists, or a
proposition for repeal of existing law. Existing law may be
repeated verbatim in an appropriation bill, but the slightest
change of the text causes it to be ruled out.
My amendment, Mr. Chairman, as the Chair will note,
specifically restates by reference the existing law, which in no
way gives discretion as to spending, but gives discretion as to
apportionment.
Mr. Chairman, as the Chair knows, the budget execution cycle
has many steps. Whereas the Chair's earlier ruling related to the
executive branch authority to apportion, my amendment addresses the
obligation rate of funds appropriated under the fact. As OMB
circular No. A-34 (July 15, 1976) titled ``Budget Execution''
explains:
Apportionment is a distribution made by OMB.
Obligations are amounts of orders placed, contracts
awarded, services received, and similar transactions.
Mr. Chairman, my amendment proposes some additional duties, but
only a very minimal additional duty upon the executive branch.
Deschler's chapter 26, section 11.1 says:
The application of any limitation on an appropriation bill
places some minimal extra duties on Federal officials, who, if
nothing else, must determine whether a particular use of funds
falls within that prohibited by the limitation. . . .
The Chairman: . . . In the first instance, the Chair would
observe that it is not the duty of the Chair or the authority of
the Chair to rule on the wisdom or the legislative effect of
amendments.
Second, the Chair will observe that the gentleman from
Virginia, in the way in which his amendment has been drafted,
satisfies the requirements of the Apportionment Act, which was the
subject of a prior ruling (4) of the Chair in connection
with another piece of legislation.
---------------------------------------------------------------------------
4. See Sec. 51.23, infra.
---------------------------------------------------------------------------
The Chair agrees with the basic characterization made by the
gentleman from Indiana that the precedents of the House relating to
limitations on general appropriation bills stand for the
proposition that a limitation to be in order must apply to a
specific purpose, or object, or amount of appropriation. The
doctrine of limita
[[Page 5620]]
tions on a general appropriation bill has emerged over the years
from rulings of Chairmen of the Committee of the Whole, and is not
stated in clause 2, rule XXI itself as an exception from the
prohibition against inclusion of provisions which ``change existing
law.'' Thus the Chair must be guided by the most persuasive body of
precedent made known to him in determining whether the amendment
offered by the gentleman from Virginia (Mr. Harris) ``changes
existing law.'' Under the precedents in Deschler's Procedure,
chapter 26, section 1.12, the proponent of an amendment has the
burden of proving that the amendment does not change existing law.
The Chair feels that the basic question addressed by the point
of order is as follows: Does the absence in the precedents of the
House of any ruling holding in order an amendment which attempts to
restrict not the purpose or object or amount of appropriation, but
to limit the timing of the availability of funds within the period
otherwise covered by the bill require the Chair to conclude that
such an amendment is not within the permissible class of amendments
held in order as limitations? The precedents require the Chair to
strictly interpret clause 2, rule XXI, and where language is
susceptible to more than one interpretation, it is incumbent upon
proponent of the language to show that it is not in violation of
the rule (Deschler's chapter 25, section 6.3).
In essence, the Chair is reluctant, based upon arguments
submitted to him, to expand the doctrine of limitations on general
appropriation bills to permit negative restrictions on the use of
funds which go beyond the amount, purpose, or object of an
appropriation, and the Chair therefore and accordingly sustains the
point of order.
Committee Has Burden of Defending Provisions of Bill
Sec. 22.27 Provisions in a general appropriation bill described in the
accompanying report pursuant to Rule XXI clause 3 as directly or
indirectly changing the application of existing law are presumably
legislation in violation of Rule XXI clause 2(c), in the absence of
rebuttal by the committee.
On May 31, 1984,(5) during consideration in the
Committee of the Whole of the Departments of State, Justice, and
Commerce appropriation bill (H.R. 5172), a point of order was made and
sustained, as follows:
---------------------------------------------------------------------------
5. 130 Cong. Rec. ----, 98th Cong. 2d Sess.
---------------------------------------------------------------------------
Mr. [Robert S.] Walker [of Pennsylvania]: Mr. Chairman, I have
a point of order.
The portion of the bill to which the point of order relates is
as follows:
Administration of Foreign Affairs
salaries and expenses
For necessary expenses of the Department of State and the
Foreign Service, not otherwise provided for, including
obligations of the United
[[Page 5621]]
States abroad pursuant to treaties, international agreements,
and binational contracts (including obligations assumed in
Germany on or after June 5, 1945) and notwithstanding section
602 of this Act for administering the contribution to the
United States India Fund for Cultural, Educational, and
Scientific Cooperation; expenses authorized by section 9 of the
Act of August 31, 1964, as amended (31 U.S.C. 3721), and
section 2 of the State Department Basic Authorities Act of
1956, as amended (22 U.S.C. 2669). . . .
Mr. Chairman, I refer to the committee report in which this
particular section is listed as a change in the application of
existing law. Therefore, that would be in violation of rule XXI and
therefore I think my point of order should be sustained.
The Chairman: (6) Does the gentleman from Iowa wish
to be heard any further?
---------------------------------------------------------------------------
6. George E. Brown, Jr. (Calif.).
---------------------------------------------------------------------------
Mr. [Neal] Smith of Iowa: No, Mr. Chairman.
The Chairman: It is the opinion of the Chair that since the
committee report concedes that this is a change in existing law,
the point of order should be upheld, and the point of order is
upheld.
Language Requiring Official to Apply Standards Held Unconstitutional by
Competent Court
Sec. 22.28 Rule XXI clause 2 prohibits an amendment to a general
appropriation bill which changes existing court-made as well as
statutory law; an amendment to a general appropriation bill
containing funds for the Internal Revenue Service, to deny use of
funds therein to formulate or carry out any regulation which would
cause loss of tax-exempt status to private religious schools,
unless in effect prior to Aug. 22, 1978, was ruled out of order as
legislation, since a federal court had enjoined the Internal
Revenue Service from applying the regulations in effect on Aug. 22,
1978, and the amendment had the effect of requiring the Internal
Revenue Service to apply interpretations of the Internal Revenue
Code no longer in accordance with the law.
On Aug. 19, 1980,(7) during consideration in the
Committee of the
[[Page 5622]]
Whole of the Department of Treasury and Postal Service appropriation
bill, a point of order was sustained against the following amendment:
---------------------------------------------------------------------------
7. 126 Cong. Rec. 21978-80, 96th Cong. 2d Sess. See also the note in
Sec. 77.10, infra, as to the effect of rulings under clause
5(b) of Rule XXI, which provides that no bill or joint
resolution carrying a tax or tariff measure shall be reported
by any committee not having jurisdiction to report tax and
tariff measures, nor shall an amendment in the House or
proposed by the Senate carrying a tax or tariff measure be in
order during the consideration of a bill or joint resolution
reported by a committee not having that jurisdiction.
---------------------------------------------------------------------------
The Clerk read as follows:
Amendment offered by Mr. [John M.] Ashbrook [of Ohio]: On
page 8, after line 22, insert the following new section:
``Sec. 103. None of the funds made available pursuant to
the provisions of this Act shall be used to formulate or carry
out any rule, policy, procedure, guideline, regulation,
standard, or measure which would cause the loss of tax-exempt
status to private, religious, or church-operated schools under
section 501(c)(3) of the Internal Revenue Code of 1954 unless
in effect prior to August 22, 1978.''. . . .
Mr. [Louis] Stokes [of Ohio]: Mr. Chairman, I make a point of
order against the proposed amendment on the grounds that it is
legislation on an appropriation bill in violation of clause 2 of
rule XXI.
Chapter 26, section 11.1 of Deschler's Procedure states:
When an amendment . . . explicitly places new duties on
officers of the government, or implicitly requires them to make
investigations, compile evidence or make judgments and
determinations not otherwise required of them by law then it
assumes the character of legislation and is subject to a point
of order.
This amendment would impose additional executive duties. Under
the provisions of this amendment the Commissioner and employees of
IRS would be required to make a determination as to whether or not
``any policy, procedure, guideline, regulation, standard, or
measure'' that the IRS proposed to ``formulate or carry out'' would
cause the ``loss of tax exempt status'' of private schools. It
would require Federal officials to make new determinations as to
the current tax-exempt status of each private school, what that
tax-exempt status was on August 22, 1978 and whether the proposed
action would cause the loss of that tax exemption. This amendment
places new duties on executive officials to make judgments and
determinations not required under existing law.
In addition, Mr. Chairman, rule XXI, clause 2 specifically
states that no ``amendment changing existing law'' shall be in
order. The proposed amendment does change existing law. The
application of section 501(c)(3) of the Internal Revenue Service
Code (title 26 of the U.S. Code) has been modified over the years
by court decision.
For example, in Green against Connally in 1971 the Supreme
Court held that a segregative private school is not entitled to
tax-exempt status even though that section of the code says
absolutely nothing directly or indirectly about racial
discrimination or segregative schools. It is clear, Mr. Chairman,
that the Federal courts, through their interpretation of the
Constitution, have the authority under the Constitution to change
the application of existing law through judicial interpretation. I
would maintain that section 501(c)(3) as it was applied on August
22, 1978 has now been changed by Federal court interpretation of
that section. I refer specifically to the recent Federal court
order Green against Mil
[[Page 5623]]
ler, which is referred to as Green II, decided on May 5, 1980. I
need not go into the specific details relative to that case, but it
is certainly apparent, Mr. Chairman, I think, that this decision
has changed the application of section 501(c)(3). Thus, the
proposed amendment by the gentleman from Ohio would require that
the Internal Revenue Service return to the law as it was
interpreted on August 22, 1978. This then would be a change from
the interpretation now given that section.
A recent precedent, Mr. Chairman, is the ruling by the Chair on
an amendment to the Treasury, Postal Service appropriation bill for
1979 which can be found on page H5096 in the Congressional Record
of June 7, 1978. That amendment attempted to prohibit the Internal
Revenue Service from determining whether or not an individual is an
employee ``other than under the audit practices, interpretations,
regulations and Federal court decisions in effect on December 31,
1975.'' The Chair ruled that the amendment would ``require a return
to the law as it existed prior to'' that date and therefore changed
existing law and was not in order.
For those reasons, Mr. Chairman, I believe the amendment to be
in violation of rule XXI, clause 2, and urge the approval of the
point of order. . . .
Mr. Ashbrook: . . . As we all know, there are three primary
tests of germaneness in the House rules. They are:
First, subject matter. ``An amendment must relate to the
subject matter under consideration.'' This amendment deals with the
exercise of authority by the IRS, the funding for which is included
in H.R. 7583. There is no holding by the Parliamentarian that, in a
similar case, would find the amendment to be nongermane. . . .
``The primary tests of germaneness are not exclusive though; an
amendment and the matter to which it is offered may be related to
some degree under the tests of subject matter, purpose, and
jurisdiction, and still not be considered under the precedents.''
Neither of the precedents cited in either the rules and Deschler's
would indicate that the Ashbrook amendment is nongermane. . . .
On the point he made regarding changing existing law, I would
call the Chair's attention to Revenue Procedure 7550. It clearly
cites the decision that he had indicated that is preserved by this
particular ruling, and that ruling is in effect prior to the time
that is listed in my amendment. My amendment does not require IRS
to make any new judgments not already being made or able to be made
pre-August 1978.
Probably the best argument for defeating the point of order on
this amendment is that it has been adopted by the House in the
fiscal year 1980 Treasury appropriations bill and the fiscal year
1980 supplemental appropriations bill. Likewise, controversial
amendments restricting the use of funds appropriated in an
appropriations bill have been consistently adopted in the past, the
most well known of these, of course, being the Hyde amendment to
restrict Federal funds on abortion, and several amendments to
restrict the use of Federal funds to support the busing of school
children. . . .
Mr. [Charles B.] Rangel [of New York]: I would like to speak in
support
[[Page 5624]]
of the point of order. Mr. Chairman, this amendment is not a
limitation on the use of money but actually is legislation. What it
does in fact do is to nullify an administrative law court decision
after the date that is in the amendment, and it also restricts the
IRS from issuing rulings that would allow charitable organizations
to allow their contributors to deduct these charitable deductions
that are made. So what it actually does is nullify existing law,
and by doing that, it nullifies a Federal court decision. In
addition to that, Mr. Chairman, this amendment interferes with the
non-discretionary authority of the executive branch of Government.
As pointed out by my colleague, the gentleman from Ohio (Mr.
Stokes), the courts did not tell the IRS what they could or could
not do but mandated by giving guidelines that they must remove the
tax exemptions from institutions that were racially discriminating
against groups of people.
In addition to that, Mr. Chairman, this amendment violates the
separation of powers. There is no question that the judiciary has
the obligation, the constitutional responsibility, to review
legislation enacted by this Congress and to give their opinions,
and if in fact we dislike any opinion given by the court, whether
it is the Green case, one or two, or any other judiciary decision,
we have the authority to legislate, but we cannot do that with an
appropriations bill. . . .
The Chairman: (8) the Chair is prepared to rule.
---------------------------------------------------------------------------
8. Richardson Preyer (N.C.).
---------------------------------------------------------------------------
The gentleman from Ohio [Mr. Stokes] makes the point of order
that the amendment offered by the gentleman from Ohio [Mr.
Ashbrook] is legislation on an appropriation bill in violation of
clause 2, rule XXI. . . .
The gentleman from Ohio (Mr. Ashbrook) has cited precedents
relating to germaneness. The Chair is of the opinion that this is
not a germaneness question.
The Chair is aware that in a currently binding Federal court
order and permanent injunction in the case of Green against Miller,
the Internal Revenue Service has been enjoined and restrained from
according tax-exempt status to, and from continuing the tax-exempt
status now enjoyed by, all Mississippi private schools or the
organizations that operate them which have been determined to
discriminate racially. This is the uncontroverted status of the law
as interpreted by the courts with respect to the authority of the
IRS in according tax-exempt status.
As indicated on page 533 of the House Rules and Manual, on June
7, 1978, an amendment by the gentleman from California (Mr.
Panetta) denying the use of funds for the Treasury Department to
apply certain provisions of the Internal Revenue Code other than
under regulations and court decisions in effect on a prior date was
held to be legislation, since requiring an official to apply
interpretations no longer current or legal in order to render the
appropriation applicable. In the opinion of the Chair, the pending
amendment falls within the same category and is, therefore,
legislation in violation of clause 2, rule XXI.
The Chair sustains the point of order.
[[Page 5625]]
Where Amendment Is Challenged as Changing Law, Proponent Has Burden of
Refuting
Sec. 22.29 The proponent of an amendment against which a point of order
has been raised and documented as constituting legislation on an
appropriation bill has the burden of proving that the amendment
does not change existing law.
Precedents are few on the burden of proof where an amendment is
challenged as being legislative, but by analogy to precedents under
Rule XXI clause 2, requiring the committee or Member offering an
amendment to show an authorization for a proposed appropriation, it may
be concluded that the proponent of the amendment must prove to the
satisfaction of the Chair that language which has been challenged is
not legislative, after an initial argument has been made, pursuant to a
point of order, that it does change existing law. The Chair so
concluded in a ruling on July 17, 1975,(9) in sustaining a
point of order against an amendment to H.R. 8597 (Treasury, Postal
Service, and general governmental appropriations for fiscal 1976). The
proceedings are discussed in Sec. 51.22, infra.
---------------------------------------------------------------------------
9. 121 Cong. Rec. 23239, 94th Cong. 1st Sess.
---------------------------------------------------------------------------
Where Provision in Bill Challenged as Legislation, Committee Has Burden
Sec. 22.30 Where a point of order is raised against a provision in a
general appropriation bill as constituting legislation in violation
of Rule XXI clause 2, the burden of proof is on the Committee on
Appropriations to show that the language constitutes a valid
limitation under the precedents which does not change existing law.
On Nov. 30, 1982,(10) a provision in a general
appropriation bill prohibiting the use of funds therein by the Office
of Management and Budget to ``interfere with'' the rulemaking authority
of any regulatory agency was ruled out as legislation which would
implicitly require that agency to make determinations not required by
law in evaluating and executing its responsibilities mandated by law.
In the course of its ruling, the Chair stated:
---------------------------------------------------------------------------
10. 128 Cong. Rec. 28063, 97th Cong. 2d Sess.
---------------------------------------------------------------------------
The Committee on Appropriations has not sustained the burden of
show
[[Page 5626]]
ing that the proposed language would not change and augment the
responsibilities imposed by law on the Office of Management and
Budget and, therefore, [the Chair] sustains the point of order.
The proceedings are discussed in
Sec. 52.43, infra.
CHAPTER 26
Unauthorized Appropriations; Legislation on Appropriation Bills
C. PROVISIONS AS ``CHANGING EXISTING LAW,'' GENERALLY
Sec. 23. Incorporating or Restating Existing Law
Reference as Merely Descriptive
Sec. 23.1 It is in order in a general appropriation bill to include
language descriptive of authority provided in law for the operation
of government corporations and agencies funded in the bill so long
as the description is precise and does not change that authority in
any respect.
On June 15, 1973,(11) during consideration in the
Committee of the Whole of a general appropriation bill (H.R. 8619), a
point of order was raised against the following provision:
---------------------------------------------------------------------------
11. 119 Cong. Rec. 19843, 19844, 93d Cong. 1st Sess.
---------------------------------------------------------------------------
Corporations
The following corporations and agencies are hereby authorized
to make such expenditures, within the limits of funds and borrowing
authority available to each such corporation or agency and in
accord with law, and to make such contracts and commitments without
regard to fiscal year limitations as provided by section 104 of the
Government Corporation Control Act, as amended, as may be necessary
in carrying out the programs set forth in the budget for the
current fiscal year for such corporation or agency, except as
hereinafter provided:
Mr. [Charles A.] Vanik [of Ohio]: Mr. Chairman, I make a point
of order against the language found in line 13, through line 22, on
page 20, on the basis that it is legislation in an appropriation
bill.
The Chairman: (12) The gentleman from Ohio (Mr.
Vanik) makes a point of order against the language found on page
20, line 13 through line 22.
---------------------------------------------------------------------------
12. James C. Wright, Jr. (Tex.).
---------------------------------------------------------------------------
Does the gentleman from Ohio wish to be heard?
Mr. Vanik: Mr. Chairman, it is legislation on an appropriation
bill. It clearly says, ``The following corporations,'' meaning the
Federal Crop Insurance Corporation and the Commodity Credit
Corporation, ``are authorized to make expenditures.''
This is the work of the legislative committee, and I contend
that this is legislation on an appropriation bill and that this
ought to be handled by the legislative committee rather than made a
part of the appropriation bill.
The Chairman: Does the gentleman from Mississippi (Mr.
Whitten), desire to be heard?
Mr. [Jamie L.] Whitten: Mr. Chairman, I rise to make the point
that the
[[Page 5627]]
point of order should not lie. We have language in the original act
to make this authorization, and by reason of repeating it in this
act, that does not change the basic law. It is already authorized.
In this situation the committee is setting a ceiling rather
than creating an authority. While we use the same words and repeat
the same words, the committee has, in effect, set a ceiling, so I
submit that it is not subject to a point of order, because it
merely repeats the law which is already authorized.
The Chairman: The Chair has gone to the original source--the
Government Corporation Control Act--to which reference is made on
page 20 in this appropriation bill.
The Chair discovers that the budget programs transmitted by the
President to the Congress under this act shall be considered and
legislation shall be enacted making necessary appropriations as may
be authorized by law for expenditures of such corporations.
Clearly there is no question as to the right of the Congress to
include in this annual appropriation bill funds for these
Government corporations, several of which are included in the bill.
It appears to the Chair that this is descriptive or
introductory language only and that the language does not
constitute change in existing law. Therefore it is in order, and
for those reasons the Chair overrules the point of order.
Descriptive Language Not Derived From Existing Law
Sec. 23.2 An amendment proposing to insert the words ``known as `Rankin
Dam' '' following an appropriation for Pickwick Landing Dam was
held to be legislation and not in order on an appropriation bill.
On May 8, 1936,(13) during consideration in the
Committee of the Whole of a deficiency appropriation bill (H.R. 12624),
a point of order was raised against the following amendment:
---------------------------------------------------------------------------
13. 80 Cong. Rec. 6964-67, 74th Cong. 2d Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
Page 19, line 2, after the words ``Pickwick Landing Dam'',
insert the following: ``(known as `Rankin Dam').''
Mr. [John J.] McSwain [of South Carolina]: Mr. Chairman, I make
a point of order on the amendment that it is legislation on an
appropriation bill. It is evidently an attempt to change the name
and call it ``Rankin Dam.'' It is in the teeth of legislation that
has been attempted time and time again. There are bills before the
Committee on Military Affairs to change the name of this dam to
``Rankin Dam.''
Mr. [Harold] Knutson [of Minnesota]: I should like to ask the
gentleman if it is not customary to wait until the man is dead
before they name a dam for him?
Mr. McSwain: Yes; it is.
The Chairman: (14) Does the gentleman from
Mississippi wish to be heard on the point of order?
---------------------------------------------------------------------------
14. John W. McCormack (Mass.).
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[[Page 5628]]
Mr. [Clarence] Cannon of Missouri: Mr. Chairman, if the Chair
will permit.
The Chairman: The Chair recognizes the gentleman from Missouri.
Mr. Cannon of Missouri: Mr. Chairman, this amendment is not
legislation. It is language merely descriptive, and such amendments
have been repeatedly held not to be legislation.
I recall two decisions on this point. They were made by one of
the greatest parliamentarians who has served in the House, James R.
Mann, of Illinois.
The first was made in 1905 when an amendment was offered, I
think, to the Naval bill.
The language provided that ships or armament should be of
``native manufacture.''. . . Mr. James R. Mann, of Illinois, held
that those words were merely descriptive and that it was not
legislation.
Mr. [Bertrand H.] Snell [of New York]: Mr. Chairman, will the
gentleman yield?
Mr. Cannon of Missouri: I yield with pleasure to the
distinguished leader on the other side of the House.
Mr. Snell: If the words are merely descriptive, why will they
have the effect of changing the name of the dam?
Mr. Cannon of Missouri: They do not change the name of the dam.
It is not proposed to change the name of the dam.
Mr. Snell: But is not that the intention? I call it
legislation. Is not that the intention of the amendment?
Mr. Cannon of Missouri: The gentleman from New York, being one
of the ablest parliamentarians in the House, knows that the
Chairman of the Committee of the Whole may not speculate as to the
intention of an amendment. He must predicate his decision on the
amendment before him in the language in which it is written. He
cannot go back of what is on the face of it to surmise what is the
purpose of a Member in offering an amendment. This amendment merely
further describes the Pickwick Landing Dam; it does not propose a
change in the name; it merely adds the descriptive language ``known
as the Rankin Dam.''. . .
The Chairman: The Chair is prepared to rule. The Chair entirely
agrees with the gentleman from Missouri [Mr. Cannon], with
reference to the use of descriptive words. Therefore, the question
in the mind of the present occupant of the chair is whether the
amendment is descriptive or whether it constitutes legislation.
Without regard to whether or not it brings about a change in the
name of the dam from ``Pickwick Landing Dam'' to ``Rankin Dam'', it
is the opinion of the Chair, with profound respect for the opinion
of the gentleman from Missouri, one of the outstanding
parliamentarians of all time, that the amendment does not
constitute descriptive language; that it constitutes legislation It
is an addition to the language used in this bill. The Chair would
rule the same whether or not the legislation referred to by the
gentleman from South Carolina [Mr. McSwain] contained the words
``Pickwick Landing Dam'' or not, because that name is included in
the bill now before the House.
Profoundly respecting the views of the gentleman from Missouri,
and with considerable hesitation in disagreeing with him, it is the
opinion of the Chair that the point of order is well taken, and the
Chair therefore sustains the point of order.
[[Page 5629]]
Presumption of New Legislative Effect--Authority to Enter Into
Contracts
Sec. 23.3 Although under existing law it may be in order to appropriate
money for entering into contracts it is not in order to grant
authority to enter into contracts to carry out the provisions of a
legislative act.
On Jan. 18, 1940,(15) during consideration in the
Committee of the Whole of the independent offices appropriation bill
(H.R. 7922), a point of order was raised against the following
provision:
---------------------------------------------------------------------------
15. 86 Cong. Rec. 508, 509, 76th Cong. 3d Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
In addition to the contract authorizations of $115,000,000
contained in the Third Deficiency Appropriation Act, fiscal
year 1937, and $230,000,000 in the Independent Offices
Appropriation Act, 1940, the Commission is authorized to enter
into contract for further carrying out the provisions of the
Merchant Marine Act, 1936, as amended, in an amount not to
exceed $150,000,000.
Mr. [John] Taber [of New York]: Mr. Chairman, I make the point
of order against the paragraph on the ground that it is legislation
on an appropriation bill. I refer to the paragraph beginning in
line 22, page 71, and ending in line 3, page 72.
Mr. [Schuyler Otis] Bland [of Virginia]: Mr. Chairman, I desire
to be heard upon the point of order. . . .
Mr. Taber: Mr. Chairman, there is something to say on the point
of order. Almost every one of the sections that has been read
specifically says ``out of available funds.'' The general situation
is that these contracts cannot be entered into without specific
authority, and those things are not provided for in the general
legislation.
The Chairman: (16) The Chair is ready to rule.
---------------------------------------------------------------------------
16. Lindsay C. Warren (N.C.).
---------------------------------------------------------------------------
The gentleman from New York [Mr. Taber] makes the point of
order that the paragraph now under consideration is legislation on
an appropriation bill. Of course, it is well known that the United
States Maritime Commission has authority under the law to enter
into contracts. Assuming that to be true, what would be the purpose
in that Commission having authority under an appropriation bill to
enter into contracts, unless it was for some new purpose?
An almost similar proposition of this kind came up on the
second deficiency bill on April 28, 1937, at which time the
Committee of the Whole was presided over by Mr. Vinson of Kentucky,
when an amendment was offered dealing with the Tennessee Valley
Authority. The Chair, at that time, construed it to be legislation
on an appropriation bill. The present occupant of the chair so
construes it, and sustains the point of order.
Parliamentarian's Note: Pursuant to section 401(a) of the
Congressional Budget Act of 1974 (Pub. L. No. 93-344) which prohibits
the inclusion of new contract spending or borrowing au
[[Page 5630]]
thority in legislative bills unless such authority is limited to the
extent or in amounts provided in appropriation acts, the inclusion of
proper limiting language in a general appropriation bill, if
specfically permitted by law, would not render that language subject to
a point of order under Rule XXI clause 2, since it would no longer
``change existing law.''
-- Incorporating or Mandating Full Funding Levels
Sec. 23.4 Language in a general appropriation bill requiring that the
mandatory funding levels prescribed by existing law shall be
effective during the fiscal year was ruled out as legislation, in
violation of Rule XXI clause 2, on the theory that if the language
were an exact restatement of the law it was unnecessary and that
its inclusion in the appropriation act indicated that it was
presumed to have a legislative effect beyond that in existing law.
On Feb. 19, 1970,(17) during consideration in the
Committee of the Whole of the Departments of Labor and Health,
Education, and Welfare appropriation bill (H.R. 15931), a point of
order was raised against the following provision:
---------------------------------------------------------------------------
17. 116 Cong. Rec. 4019, 91st Cong. 2d Sess.
---------------------------------------------------------------------------
Mr. [Neal] Smith of Iowa: Mr. Chairman, I make a point of order
against the language on page 57, lines 9 through 16, which reads as
follows:
Provided further, That those provisions of the Economic
Opportunity Amendments of 1967 and 1969 that set mandatory
funding levels, including newly authorized programs for
alcoholic counseling and recovery and for drug rehabilitation,
shall be effective during the fiscal year ending June 30, 1970:
Provided further, That of the sums appropriated not less than
$22,000,000 shall be used for the family planning program.
Mr. Chairman, I make the point of order on the ground that it
is legislation on an appropriation bill. . .
The Chairman: (18) Does the gentleman from Michigan
seek recognition on this point of order?
---------------------------------------------------------------------------
18. Chet Holifield (Calif.).
---------------------------------------------------------------------------
Mr. [James G.] O'Hara [of Michigan]: I do, Mr. Chairman.
Mr. Chairman, it seems to me the amendment simply restates
existing law in the authorizing legislation, and if that is indeed
the case, I do not think it is subject to a point of order.
The Chairman: The Chair will say that if this restates existing
law, there is no point in its being in the bill, and the fact that
it is in the bill on its face would indicate there must be
legislation in it in addition to that contained in existing law.
The Chair, therefore, sustains the point of order.
[[Page 5631]]
-- Granting Authorization for Project
Sec. 23.5 Language in an appropriation bill authorizing the Director of
Selective Service to destroy records accumulated under the
Selective Training and Service Act was held to be legislation and
not in order.
On Mar. 30, 1955,(19) during consideration in the
Committee of the Whole of the independent offices appropriation bill
(H.R. 5240), a point of order was raised against the following
provision:
---------------------------------------------------------------------------
19. 101 Cong. Rec. 4070, 84th Cong. 1st Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
Appropriations for the Selective Service System may be used
for the destruction of records accumulated under the Selective
Training and Service Act of 1940, as amended, which are hereby
authorized to be destroyed by the Director of Selective Service
after compliance with the procedures for the destruction of
records prescribed pursuant to the Records Disposal Act of
1943, as amended (44 U.S.C. 366-380): Provided, That no records
may be transferred to any other agency without the approval of
the Director of Selective Service.
Mr. [Clare E.] Hoffman of Michigan: Mr. Chairman, I make the
point of order that the first 7 words in line 18, page 27, ``which
are hereby authorized to be destroyed'' is legislation on an
appropriation bill, because it authorizes the Director to destroy
records.
The Chairman: (20) That is the specific language to
which the gentleman makes his point of order?
---------------------------------------------------------------------------
20. Albert Rains (Ala.).
---------------------------------------------------------------------------
Mr. Hoffman of Michigan: Yes.
The Chairman: Does the gentleman from Texas [Mr. Thomas] desire
to be heard on this point of order?
Mr. [Albert] Thomas: Mr. Chairman, we ask for the ruling of the
Chair. We doubt that this is legislation.
The Chairman: The Chair is ready to rule. This is clearly
legislation on an appropriation bill.
Mr. [John] Phillips [of California]: Mr. Chairman, may I be
heard very briefly on that? Apparently the Chair feels this is
legislation, but this follows the Records Disposal Act of 1943 Does
it become legislation if it is a repetition of a statute?
The Chairman: Why is it necessary to have it if it is already
in the law? The Chair thinks it is clearly legislation and sustains
the point of order.
Language Either Legislation or Not Necessary
Sec. 23.6 Language in a general appropriation bill providing that funds
for the construction of Indian health facilities could be expended
``through the Department of Interior at the option'' of the
Secretary of the Department of Health, Education, and Welfare was
held to be legislation and not in order.
[[Page 5632]]
On Mar. 29, 1960,(1) 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:
---------------------------------------------------------------------------
1. 106 Cong. Rec. 6863, 6864, 86th Cong. 2d Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
Construction of Indian Health Facilities
For construction, major repair, improvement, and equipment
of health and related auxiliary facilities, including quarters
for personnel; preparation of plans, specifications, and
drawings; acquisition of sites; purchase and erection of
portable buildings; purchase of trailers; and provision of
domestic and community sanitation facilities for Indians;
$8,964,000, to remain available until expended: Provided, That
such expenditures may be made through the Department of the
Interior at the option of the Secretary of the Department of
Health, Education, and Welfare.
Mr. [H. R.] Gross [of Iowa]: Mr. Chairman, I make the point of
order against the language on page 28, line 22, which reads
``Provided, That such expenditures may be made through the
Department of the Interior at the option of the Secretary of the
Department of Health, Education, and Welfare' on the ground that
that, too, is legislation on an appropriation bill. . . .
Mr. [Walter H.] Judd [of Minnesota]: Mr. Chairman, may I be
heard on the point of order?
The Chairman: (2) The Chair will be pleased to hear
the gentleman from Minnesota on the point of order.
---------------------------------------------------------------------------
2. Eugene J. Keogh (N.Y.).
---------------------------------------------------------------------------
Mr. Judd: Mr. Chairman, I am sorry we do not have here the text
of the law which transferred the medical care of our Indian
population to the Public Health Service. As the author of the
original bill, I am sure that it had language which authorized the
Public Health Service to carry on medical care for the Indians
through the Department of the Interior and its existing agencies
when that could be done to greater advantage and without greater
cost. Whether that language in the original bill was retained in
the final law, I do not recall, and we do not have the text of it
here.
The Chairman: The Chair is ready to rule. . . .
The Chair is of the opinion that the language is obviously
legislation on an appropriation bill and therefore sustains the
point of order; making the observation with respect to the
arguments raised by two of the gentlemen that if the language is in
existing law then it is not necessary in this bill.
Sec. 23.7 Language in an appropriation bill authorizing the Secretary
of the Navy to enter into contracts for new construction of
aircraft and equipment, including expansion of public or private
plants, was held to be legislation on an appropriation bill and not
in order.
On Apr. 13, 1949,(3) during consideration in the
Committee of the
[[Page 5633]]
Whole of the military establishment appropriation bill (H.R. 4146), a
point of order was raised against the following provision:
---------------------------------------------------------------------------
3. 95 Cong. Rec. 4521, 81st Cong. 1st Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
For new construction and procurement of aircraft and
equipment, spare parts and accessories therefor, including
expansion of public plants or private plants (not to exceed
$500,000), and Government-owned equipment and installation
thereof in public or private plants, and for the employment of
personnel in the Bureau of Aeronautics necessary for the
purposes of this appropriation, to remain available until
expended, $523,070,000, of which $418,000,000 is for
liquidation of obligations incurred under authority heretofore
granted to enter into contracts for the foregoing purposes; and
in addition, the Secretary of the Navy is authorized to enter
into contracts for the purposes of this appropriation in an
amount not to exceed $576,546,000.
Mr. [Frederic R.] Coudert [Jr., of New York]: Mr. Chairman, a
point of order.
The Chairman: (4) The gentleman will state it.
---------------------------------------------------------------------------
4. Eugene J. Keogh (N.Y.).
---------------------------------------------------------------------------
Mr. Coudert: Mr. Chairman, I reserve a point of order with
respect to the last three lines of that paragraph--lines 8, 9, and
10, on page 65, as legislation on an appropriation bill. . . . In
other words, Mr. Chairman, my point of order is to the following
language: ``and in addition, the Secretary of the Navy is
authorized to enter into contracts for the purposes of this
appropriation in an amount not to exceed $576,546,000.''
The Chairman: Does the gentleman from Texas desire to be heard
on the point of order?
Mr. [George H.] Mahon [of Texas]: Mr. Chairman, of course there
is authorization by law for the procurement and contracts of
procurement of munitions, armaments and airplanes. It seems to me
that there is ample justification for the provision contained in
this bill. I insist, Mr. Chairman, that the point of order is not
well taken.
The Chairman: The Chair is ready to rule.
The gentleman from New York makes the point of order to the
language appearing on page 65, line 8, after the word ``purposes''
down to and including the figure on line 10 on the ground that it
is legislation on an appropriation bill. The Chair is of the
opinion that if in existing law the Secretary of the Navy were
authorized to enter into such contracts, this language in the bill
would not be necessary; if the Secretary of the Navy is without
that power, this language is legislation on an appropriation bill.
The Chair sustains the point of order.
Restriction of Discretion
Sec. 23.8 Where existing law established priorities to be followed by
an executive official in the distribution of funds authorized
thereby (but did not explicitly preclude distribution of some funds
for lower priority projects), an amendment to an appropriation bill
requir
[[Page 5634]]
ing that those appropriated funds shall be distributed in
accordance with such priorities may be regarded as constituting a
stronger mandate as to the use of those funds and as a modification
of the authorizing law, and therefore out of order.
On June 15, 1972,(5) during consideration in the
Committee of the Whole of the Departments of Labor and Health,
Education, and Welfare appropriation bill, a point of order was raised
against the following amendment:
---------------------------------------------------------------------------
5. 118 Cong. Rec. 21131, 92d Cong. 2d Sess.
---------------------------------------------------------------------------
Mr. [Sidney R.] Yates [of Illinois]: Mr. Chairman, I offer an
amendment.
The Clerk read as follows:
Amendment offered by Mr. Yates: at page 22, line 4, change
the period to a semicolon and add the following: ``Provided
that the funds herein appropriated for bilingual education
under the Bilingual Education Act shall be distributed in
accordance with the authority contained in Section 703(b) of
said Act requiring that the Commissioner shall give highest
priority to states and areas within states having the greatest
need for programs under the Act, and that such priority shall
take into consideration the number of children of limited
English-speaking ability between the ages of three (3) and
eighteen (18) in each state;''
Mr. [Daniel J.] Flood [of Pennsylvania]: Mr. Chairman, I make a
point of order to the amendment on the ground it is obviously
legislation on an appropriation bill. The amendment applies to a
specific provision of the act, and any time you do that, that is
patently, obviously, and clearly legislation upon an appropriation
bill.
Mr. Yates: Mr. Chairman, I think the gentleman is indulging in
double talk. I do not quite understand what his point of order is.
This is a repetition of the statute itself and is therefore
completely clear.
Mr. Flood: There is a deviation.
Mr. Yates: There is not a deviation. It is an actual quotation.
Mr. Flood: There was a slight change, which was ruled on by the
Chair in ruling on the point of order, and it is out of order for
that reason.
The Chairman: (6) The Chair is ready to rule. The
language of the gentleman's amendment states that the Commissioner
shall give the highest priority to States and areas within the
States having the greatest need for the program under the act. But
the amendment goes further and also states that the funds in the
pending bill shall be distributed in accordance with the authority
contained in Section 703 of the act. While the statute states
priorities, the amendment is mandatory and directs the Commissioner
to follow those priorities. It thus goes beyond the law, is a
modification of existing law, and is, therefore, legislation.
---------------------------------------------------------------------------
6. Chet Holifield (Calif.).
---------------------------------------------------------------------------
Mr. Yates: Mr. Chairman, will the Chair indulge me and permit
me to read what the act states?
The Chairman: The Chair has just read the act. The gentleman
may read it again.
[[Page 5635]]
Mr. Yates: Here is what the act states. I read from section
703:
In determining distribution of funds under this title, the
Commissioner shall give highest priority to States and areas
within States having the greatest need for programs under this
title. Such priority shall take into consideration the number
of children of limited English-speaking ability between the
ages of 3 and 18 in each state.
I incorporated that language in my amendment, Mr. Chairman, and
I am not deviating from it. I am following the act and asking that
the funds be allocated in accordance with the authority of that
section
The Chairman: The gentleman's language is different from the
language in the act although it is similar. There is a mandate in
the gentleman's language that the funds shall be distributed in
accordance with the priorities stated in the act, and the statute
only says the Commissioner shall give the highest priority to
States and areas within the States having the greatest need for
programs pursuant to this title. Therefore, the Chair finds that
the amendment carries a stronger mandate than that in the statute
and is, therefore, legislation on an appropriation bill.
The Chair, therefore, sustains the point of order.
Sec. 23.9 To an appropriation for the purchase of reindeer, an
amendment limiting the purchase to an average price of $4 per head
was held to be a limitation restricting the availability of funds
and in order.
On Mar. 15, 1939,(7) the Committee of the Whole was
considering H.R. 4852, an Interior Department appropriation. The Clerk
read as follows, and proceedings ensued as indicated below:
---------------------------------------------------------------------------
7. 84 Cong. Rec. 2789, 2790, 76th Cong. 1st Sess.
---------------------------------------------------------------------------
Reindeer industry, Alaska: For the purchase, in such manner as
the Secretary of the Interior shall deem advisable and without
regard to sections 3709 and 3744 of the Revised Statutes, reindeer,
abattoirs, cold-storage plants . . . and communication and other
equipment, owned by nonnatives in Alaska, as authorized by the act
of September 1, 1937 (50 Stat. 900), $820,000 . . . Provided, That
under this appropriation not exceeding an average of $4 per head
shall be paid for reindeer purchased from nonnative owners:
Provided further, That the foregoing limitation shall not apply to
the purchase of reindeer located on Nunivak Island.
Mr. [John C.] Schafer of Wisconsin: Mr. Chairman, I make the
point of order against the paragraph on the ground that it is
legislation on an appropriation bill unauthorized by law. In fact,
the language clearly indicates that it repeals the specific
provisions of existing law as incorporated in sections 3709 and
3744 of the Revised Statutes.
The Chairman: (8) Does the gentleman from Oklahoma
desire to be heard?
---------------------------------------------------------------------------
8. Frank H. Buck (Calif.).
---------------------------------------------------------------------------
Mr. [Jed] Johnson of Oklahoma: No; I concede the point of
order.
[[Page 5636]]
The Chairman: The point of order is sustained.
Mr. Johnson of Oklahoma: Mr. Chairman, I offer the following
amendment, which I send to the desk and ask to have read.
The Clerk read as follows:
Amendment offered by Mr. Johnson of Oklahoma: Page 60, line
23, insert a new paragraph, as follows:
``Reindeer industry, Alaska: For the purchase, in such
manner as the Secretary of the Interior shall deem advisable,
of reindeer . . . as authorized by the act of September 1, 1937
(50 Stat. 900), $820,000 . . . Provided, That under this
appropriation not exceeding an average of $4 per head shall be
paid for reindeer purchased from nonnative owners: Provided
further, That the foregoing limitation shall not apply to the
purchase of reindeer located on Nunivak Island.''
Mr. Schafer of Wisconsin: Mr. Chairman, I make the point of
order against the amendment on the ground that it is legislation on
an appropriation bill, unauthorized by law, and it delegates to the
Department additional authority which it does not now have. . . .
Mr. Johnson of Oklahoma: Mr. Chairman, I feel that it is
unnecessary to make an extended argument, as I am sure the Chair is
fully advised and ready to rule. Certainly there is no question but
that this item is clearly authorized by existing law. Authority
will be found in the act of September 1, 1937, Fiftieth Statutes,
page 900. It plainly authorizes an appropriation of $2,000,000. I
call the attention of the Chair to section 16 which reads as
follows:
The sum of $2,000,000 is hereby authorized to be
appropriated for the use of the Secretary of the Interior in
carrying out the provisions of this act.
Mr. [Harold] Knutson [of Minnesota]: What more authority do you
want? That is enough.
Mr. [Albert E.] Carter [of California]: Mr. Chairman, I would
like to be heard on the point of order.
The Chairman: The gentleman from California is recognized.
Mr. Carter: The opening sentence of the amendment reads:
For the purchase in such manner as the Secretary of the
Interior shall deem advisable.
Now, certainly there is nothing in the statute that gives the
Secretary of the Interior that much discretion. In addition to
that, Mr. Chairman, I desire to call the attention of the Chair to
the proviso in the amendment which reads as the proviso in the
bill, which is clearly legislation. Therefore I say the point of
order must be sustained against the proposed amendment.
The Chairman: The Chair is ready to rule. The act of September
1, 1937, on which the appropriation contained in this paragraph is
based, reads in part as follows:
Sec. 2. The Secretary of the Interior is hereby authorized
and directed to acquire, in the name of the United States, by
purchase or other lawful means, including exercises of power of
eminent domain, for and on behalf of the Eskimos and other
natives of Alaska, reindeer, reindeer range, equipment,
abattoirs, cold-storage plants, warehouses and other property,
real or personal, the acquisition of which he determines to be
necessary to the effectuation of the purposes of this act.
This seems to be a broad, all-inclusive grant of power. The
language used
[[Page 5637]]
in the amendment offered by the gentleman from Oklahoma merely
restates, in slightly different words, the authorization contained
in the act of September 1, 1937.
The proviso to which the gentleman from California [Mr. Carter]
refers appears to the Chair to be nothing more than a limitation,
in the strictest sense of the word.
For these reasons the Chair overrules both points of order.
Sec. 23.10 Where existing law authorized the expenditure of funds for
the benefit and existence of Indians, under broad supervisory
powers given to the Secretary of the Interior, provisions in an
appropriation bill which imposed further conditions affecting both
the exercise of those powers and the use of funds were ruled out as
legislation.
On May 14, 1937,(9) during consideration in the
Committee of the Whole of the Interior Department appropriation bill
(H.R. 6958), a point of order was raised against the following
provision:
---------------------------------------------------------------------------
9. 81 Cong. Rec. 4598, 4599, 75th Cong. 1st Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
For the purpose of encouraging industry and self-support
among the Indians and to aid them in the culture of fruits,
grains, and other crops, $165,000, which sum may be used for
the purchase of seeds, animals, machinery, tools, implements,
and other equipment necessary, and for advances to Indians
having irrigable allotments to assist them in the development
and cultivation thereof, in the discretion of the Secretary of
the Interior, to enable Indians to become self-supporting:
Provided, That the expenditures for the purposes above set
forth shall be under conditions to be prescribed by the
Secretary of the Interior for repayment to the United States on
or before June 30, 1943, except in the case of loans on
irrigable lands for permanent improvement of said lands, in
which the period for repayment may run for not exceeding 20
years, in the discretion of the Secretary of the Interior:
Provided further, That not to exceed $25,000 of the amount
herein appropriated shall be expended on any one reservation or
for the benefit of any one tribe of Indians: Provided further,
That the Secretary of the Interior is hereby authorized, in his
discretion and under such rules and regulations as he may
prescribe, to make advances from this appropriation to old,
disabled, or indigent Indian allottees, for their support, to
remain a charge and lien against their lands until paid:
Provided further, That not to exceed $15,000 may be advanced to
worthy Indian youths to enable them to take educational
courses, including courses in nursing, home economics,
forestry, and other industrial subjects in colleges,
universities, or other institutions, and advances so made shall
be reimbursed in not to exceed 8 years, under such rules and
regulations as the Secretary of the Interior may prescribe.
Mr. [John] Taber [of New York]: Mr. Chairman, I make a point of
order against the paragraph beginning on page 26, line 4. The point
of order is that this is legislation on an appropria
[[Page 5638]]
tion bill and it imposes discretionary duties upon the Secretary of
the Interior. The language at the bottom of the bill, beginning
with ``Provided further'', line 22, and the last proviso are
entirely the same. They provide that the Secretary of the Interior
shall make rules and regulations and there is no question but what
it imposes additional duties upon the Secretary of the Interior all
the way through.
In lines 17 and 18 the terms of repayment are made subject to
the discretion of the Secretary of the Interior and in lines 9 and
10 it is subject to that same discretion. This is all on page 26.
The whole paragraph is subject to discretion and imposes duties
upon the Secretary.
Mr. [Jed] Johnson of Oklahoma: Mr. Chairman, the Committee
feels that this provision is in order. It provides only a method by
which the appropriation might be expended. I have no further
comment to make.
The Chairman: (10) The Chair would like to inquire
of the gentleman from Oklahoma as to the authority for the language
appearing in lines 1 and 2, page 27, which the Chair will quote:
---------------------------------------------------------------------------
10. Jere Cooper (Tenn.).
---------------------------------------------------------------------------
To remain a charge and lien against their land until paid--
Is there provision in some existing law creating a lien upon
these lands, to which this provision refers?
Mr. Johnson of Oklahoma: I cannot say there is provision in
existing law. The only existing law would be the fact this has been
in the bill for several years and, of course, that is not
controlling.
The Chairman: The Chair would like to inquire further of the
gentleman with reference to the language appearing in lines 7 and
8, page 27, reading as follows:
And advances so made shall be reimbursed in not to exceed 8
years under such rules and regulations as the Secretary of the
Interior may prescribe.
Will the gentleman advise the Chair as to any provision of
existing law upon which this language is based?
Mr. Johnson of Oklahoma: Mr. Chairman, this is the exact
language that has been used for several years and the gentleman
from Oklahoma knows of no specific basis of law for it.
The Chairman: The Chair is ready to rule.
The gentleman from New York makes a point of order against the
entire paragraph beginning in line 4, page 26, extending down to
and including line 9, page 27. The gentleman from New York [Mr.
Taber] in making his point of order invited attention to certain
language appearing in lines 10 and 11, page 26, with reference to
the discretion of the Secretary of the Interior.
The Chair has examined the act commonly referred to and known
as the Snyder Act and invites attention to section 13 of that act,
in which the following appears:
Expenditures of appropriations by Bureau of Indian Affairs:
The Bureau of Indian Affairs, under the supervision of the
Secretary of the Interior, shall direct, supervise, and expend
such moneys as Congress may from time to time appropriate for
the benefit, care, and assistance of the Indians throughout the
United States for the following purposes: General support and
civilization, including education; for industrial assistance
and advancement and gen
[[Page 5639]]
eral administration of Indian problems. Further for general and
incidental expenses in connection with the administration of
Indian affairs.
It is the opinion of the Chair that the act to which attention
has been invited confers upon the Secretary of the Interior rather
broad discretionary authority. The Chair is of opinion that the
language to which the gentleman invited attention is not subject to
a point of order, but that the language to which the Chair invited
the attention of the gentleman from Oklahoma with reference to the
provisos does constitute legislation on an appropriation bill not
authorized by the rules of the House. It naturally follows that as
the point of order has to be sustained as to these two provisos, it
has to be sustained as to the entire paragraph. The Chair therefore
sustains the point of order made by the gentleman from New York.
Restatement of Law Applying to Other Funds
Sec. 23.11 Where the Foreign Assistance Act of 1961 contained a
prohibition against the furnishing of assistance to countries
supplying or shipping certain items to North Vietnam, a similar but
not identical provision in a general appropriation bill was ruled
out as legislation in violation of Rule XXI clause 2.
On June 4, 1970,(11) during consideration in the
Committee of the Whole of the foreign assistance appropriation bill
(H.R. 17867), a point of order was raised against the following
provision:
---------------------------------------------------------------------------
11. 116 Cong. Rec. 18406, 91st Cong. 2d Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
Sec. 116. No assistance shall be furnished under the
Foreign Assistance Act of 1961, as amended, to any country that
sells, furnishes or permits any ships under its registry to
carry to North Vietnam any of the items mentioned in subsection
107(a) of this Act.
Mr. [Peter H. B.] Frelinghuysen [Jr., of New Jersey]: Mr.
Chairman, I rise to make a point of order.
The Chairman: (12) The gentleman will state his
point of order.
---------------------------------------------------------------------------
12. Hale Boggs (La.).
---------------------------------------------------------------------------
Mr. Frelinghuysen: Mr. Chairman, I make the point of order
against section 116 in that it constitutes legislation in an
appropriation bill. I would like to add, furthermore, it is almost
word for word part of a prohibition which is already contained in
existing law, and that is section 620(n) of the Foreign Assistance
Act. The fact is the existing law is stronger and broader in its
restriction than the language in this appropriation bill.
The Chairman: Does the gentleman from Louisiana desire to be
heard on the point of order?
Mr. [Otto E.] Passman [of Louisiana]: Mr. Chairman, I ask for a
ruling on the point of order.
The Chairman: The Chair is prepared to rule on the point of
order.
The language is similar and almost like the language contained
in the Foreign Assistance Act of 1961. However, it is clearly
legislation on an appro
[[Page 5640]]
priation bill, and the point of order is sustained.
Sense of Congress That Existing Law Should Apply
Sec. 23.12 Language in a foreign aid appropriation bill expressing the
sense of Congress in opposition to discrimination by foreign
nations on the basis of race or religion against American citizens
traveling abroad, and requiring negotiations with such nations to
be conducted in accordance with that congressional policy, was
conceded to be legislation in violation of Rule XXI clause 2.
On June 4, 1970,(13) during consideration in the
Committee of the Whole of the foreign assistance appropriation bill
(H.R. 17867), a point of order was raised against the following
provision:
---------------------------------------------------------------------------
13. 116 Cong. Rec. 18403, 91st Cong. 2d Sess.
---------------------------------------------------------------------------
Sec. 106. It is the sense of Congress that any attempt by
foreign nations to create distinctions because of their race or
religion among American citizens in the granting of personal or
commercial access or any other rights otherwise available to United
States citizens generally is repugnant to our principles; and in
all negotiations between the United States and any foreign state
arising as a result of funds appropriated under this title these
principles shall be applied as the President may determine.
Mr. [Peter H. B.] Frelinghuysen [Jr., of New Jersey]: Mr.
Chairman, I make a point of order against section 106, lines 17
through 25 on page 8 on the ground that it constitutes legislation
in an appropriation bill.
Mr. Chairman, I would like to add further that the essential
wording of this section is already in existing law, and has been so
for many years. I refer to section 102 of the Foreign Assistance
Act. That section reads as follows:
The Congress further declares that any distinction made by
foreign nations between American citizens because of race,
color or religion in the granting of, or in the exercise of
personal or other rights available to American citizens, is
repugnant to our principles.
The Chairman: (14) Does the gentleman from Louisiana
(Mr. Passman) desire to be heard on the point of order?
---------------------------------------------------------------------------
14. Hale Boggs (La.).
---------------------------------------------------------------------------
Mr. [Otto E.] Passman: Yes, Mr. Chairman; we concede the point
of order. . .
The Chairman: The gentleman from Louisiana concedes the point
of order, and the Chair sustains the point of order.
Sec. 23.13 A provision in a general appropriation bill, restating, but
not in identical language, a declaration of the sense of Congress
on a matter of foreign policy [a
[[Page 5641]]
declaration found originally in the Foreign Assistance Act of
1962], was held to be legislation and was ruled out on a point of
order.
On Sept. 20, 1962,(15) during consideration in the
Committee of the Whole of the foreign aid appropriation bill (H.R.
13175), the following point of order was raised:
---------------------------------------------------------------------------
15. 108 Cong. Rec. 20181, 87th Cong. 2d Sess.
---------------------------------------------------------------------------
Mr. [Peter H. B.] Frelinghuysen [Jr., of New Jersey]: Mr.
Chairman, I make a point of order against section 112 on page 8.
The language of that section is as follows:
Sec. 112. It is the sense of Congress that in the
administration of these funds great attention and consideration
should be given to those nations which share the view of the
United States on the world crisis.
The Chairman: (16) The gentleman will state the
point of order.
---------------------------------------------------------------------------
16. Wilbur D. Mills (Ark.)
---------------------------------------------------------------------------
Mr. Frelinghuysen: Mr. Chairman, that language is already
embodied in the basic act (17) and is legislation on an
appropriation bill. . . .
---------------------------------------------------------------------------
17. See Public Law No. 87-565, Sec. 101, which stated in part: ``It is
the sense of Congress that in the administration of these funds
great attention and consideration should be given to those
countries which share the view of the United States on the
world crisis and which do not, as a result of United States
assistance, divert their own economic resources to military or
propaganda efforts, supported by the Soviet Union or Communist
China, and directed against the United States or against other
countries receiving aid under this Act.''
---------------------------------------------------------------------------
Mr. [Otto E.] Passman [of Louisiana]: Mr. Chairman, I ask for a
ruling.
The Chairman: The Chair sustains the point of order made by the
gentleman from New Jersey.
Limiting Discretion Bestowed by Law
Sec. 23.14 Language in a general appropriation bill providing that none
of the funds therein should be used unless certain procurement
contracts were awarded on a formally advertised basis to the lowest
responsible bidder was held to be legislation where existing law
provided an exception from such procedure.
On June 28, 1961,(18) during consideration in the
Committee of the Whole of the defense appropriation bill (H.R 7851),
the following point of order was raised:
---------------------------------------------------------------------------
18. 107 Cong. Rec. 11502, 87th Cong. 1st Sess.
---------------------------------------------------------------------------
Mr. [James E.] Van Zandt [of Pennsylvania]: Mr. Chairman, I
make a point of order against the legislation contained in lines 15
to 19 on page 38, reading as follows:
[[Page 5642]]
That none of the funds appropriated in this act shall be
used except that, so far as practicable, all contracts shall be
awarded on a formally advertised competitive bid basis to the
lowest responsible bidder.
The Chairman: (19) Does the gentleman from Texas
desire to be heard on the point of order?
---------------------------------------------------------------------------
19. Eugene J. Keogh (N.Y.)
---------------------------------------------------------------------------
Mr. [George H.] Mahon [of Texas]: Mr. Chairman, the point of
order, as I understand, is against the following language:
That none of the funds appropriated in this act shall be
used except that, so far as practicable, all contracts shall be
awarded on a formally advertised competitive bid basis to the
lowest responsible bidder.
This is a provision in the act which has been, I believe, in
the act since about 1953, but there is a slight change in the
wording of the proviso this year in line 18.
This language more or less repeats existing law. I refer to
chapter 137 under ``Procurement Generally,'' volume 10, United
States Code 2304(a):
Purchases of and contracts for property or services covered
by this chapter shall be made by formal advertising. However,
the head of an agency may negotiate . . . if . . . (10) the
purchase or contract is for property or services for which it
is impracticable to obtain competition.
So we call for the formally advertised bids wherever practical.
It seems to me this is a restatement of the law. It has a tendency
to reduce the funds in the bill, and I believe it is not subject to
a point of order.
The Chairman: The Chair is prepared to rule.
The gentleman from Pennsylvania [Mr. Van Zandt] makes a point
of order to the language appearing on page 38, lines 15 to 19
inclusive on the ground that it is legislation in an appropriation
act.
The Chair has listened with attention to the gentleman from
Texas and would say to him that if this is a restatement of
existing law the language in this bill is not necessary. But in
line with the argument advanced by the gentleman from Texas, that
it is a restatement setting out existing law, in the opinion of the
Chair it imposes affirmative obligations on an executive branch of
the Government and is, therefore, legislation on an appropriation
act.
The Chair sustains the point of order.
Restrictive Modification of Authority in Law; Rural Electrification
Sec. 23.15 Where existing law authorized the use of funds for the Rural
Electrification Administration for a certain purpose, a restriction
in an appropriation bill making funds therein for the REA available
``only'' for that purpose was held a limitation as containing only
the language of existing law.
On Mar. 24, 1944,(20) the Committee of the Whole was
consid
[[Page 5643]]
ering H.R. 4443, an Agriculture Department appropriation bill. The
Clerk read as follows:
---------------------------------------------------------------------------
20. 90 Cong. Rec. 3105-07, 78th Cong. 2d Sess.
---------------------------------------------------------------------------
Amendment offered by Mr. [Lyle H.] Boren [of Oklahoma]: Page
78, line 5, add the following: ``Provided, That the moneys
appropriated or otherwise authorized under this caption (`Rural
Electrification Administration') and expended or loaned under the
authority conferred by section 4 of the act approved May 20, 1936,
shall be used only to finance the construction and operation of
generating plants, electric transmission and distribution lines, or
systems, for the furnishing of electric energy to persons in rural
areas who are not now receiving central station service: Provided
further, That none of the moneys appropriated or otherwise
authorized under this caption (`Rural Electrification
Administration') shall be used to finance the construction and
operation of generating plants, electric transmission and
distribution lines, or systems in any area of the United States
included within the boundaries of any city, village, or borough
having a population in excess of 1,500 inhabitants.''
Mr. [William R.] Poage [of Texas]: Mr. Chairman, a point of
order.
The Chairman: (21) The gentleman will state his
point of order.
---------------------------------------------------------------------------
21. William M. Whittington (Miss.).
---------------------------------------------------------------------------
Mr. Poage: Mr. Chairman, I make the point of order that, rather
than being a limitation on the appropriation, this is a change in
the substantive law that authorized the Rural Electrification
Administration; and I call the attention of the Chair to a ruling
that was handed down on April 19, 1943, when substantially the same
amendment was offered, the only difference being that the word
``exclusively'' has now been changed to ``only.'' I submit those
words have exactly the same meaning and that the ruling applied at
that time would be applicable at this time. . . .
Mr. Boren: Mr. Chairman, I submit that the proposed amendment
merely reaffirms existing law. It does not change existing law. It
does not change existing law or the substantive law that created
the Rural Electrification Administration or that governs its
organization and I submit that the proposals are limiting to the
appropriation in that the sole purpose and object of the proposals
are to prevent the use of this particular money outside the
provisions of existing law. That is, that they cannot use the
particular money involved in the appropriation in line 5, page 78,
to buy out electrical systems in towns in excess of a population of
1,500.
Mr. Chairman, to support my contention that this is existing
law I want to say that the language of the first proviso is lifted
directly from section 4 of the R.E.A. Act approved May 20, 1936,
section 4 of which reads as follows:
Sec. 4. The Administrator is authorized and empowered, from
the sums hereinbefore authorized, to make loans to persons,
corporations, States, Territories, and subdivisions and
agencies thereof, municipalities, peoples, utility districts
and cooperatives, nonprofit, or limited-dividend associations
organized under the laws of any State or Territory of the
United States, for the purpose of financing the construction
and operation of generating plants, electric
[[Page 5644]]
transmission and distribution lines or systems for the
furnishing of electric energy to persons in rural areas who are
not receiving central station service.
That language is the language that is in the act of May 20,
1936, substantially word for word.
The Chairman: If the Chair may interrupt the gentleman, if it
is existing law what is the necessity for it being in the
amendment?
Mr. Boren: Mr. Chairman, the Chair anticipates the point of my
discussion in justifying the amendment. The reason is that so far
as appropriations are concerned, they have issued opinions down
there by a circuitous route and have managed to go ahead and buy
electrical systems in towns with a population in excess of 1,500.
They have done it in connection with other appropriations. So I
want to pick up this particular $20,000,000 and say that this
$20,000,000 shall not be expended in that illegal fashion.
Mr. Chairman, the language of the second proviso is lifted
directly from section 13 of the R.E.A. Act approved May 20, 1936.
Section 13 reads as follows:
Sec. 13. As used in this act the term ``rural area'' shall
be deemed to mean any area of the United States not included
within the boundaries of any city, village, or borough having a
population in excess of 1,500 inhabitants, and such term shall
be deemed to include the farm and nonfarm population thereof.
Mr. Chairman, it so happens that I served on the committee
which created the R.E.A. and I was a member of the subcommittee
that created it. I have a thorough familiarity with the act and
with the amendments that have been made to the act since its
original creation. I know what was in the mind of the committee
when this organization was created. But in spite of that, they are
spending this money to buy electrical plants in towns with a
population as high as 10,000 people. I want to limit the use of
this appropriation so that they cannot buy out existing facilities
in cities having populations of ten or twenty thousand.
Mr. Chairman, I submit that the point of order is not
substantiated by the facts in this case. First, this is a
limitation and, second, the language used has been lifted verbatim
from the substantive act creating this organization. . . .
Mr. Poage: . . . The amendment states, as I understand it, that
this money shall be used only for these purposes. When you refer to
the existing law the word ``only'' is not in existing law. I wonder
if the gentleman will tell us whether the word ``only'' has been
inserted in the proposed amendment? . . .
Mr. Boren: Mr. Chairman, just one final word in explanation of
my position. In the first instance, we inserted the word ``only''
which is a limiting word only. They have been doing it not for this
purpose but for other purposes.
The Chairman: Does the word ``only'' appear in the statute, in
response to the question asked by the gentleman from Texas [Mr.
Poage)?
Mr. Boren: The word ``only'' does not appear in the statute
That is in the second proviso. Neither do the words ``shall not be
used for other purposes'' but I make the contention that is the
thing that makes it limiting. . . .
[[Page 5645]]
Mr. [Francis H.] Case [of South Dakota]: Would the gentleman's
amendment expand the basic law and authorize expenditures for
anything not authorized in the basic law?
Mr. Boren: It does not. It is solely limiting.
Mr. Case: In the use of the word ``only,'' does that word
``only'' limit the appropriation to expenditures for only a
particular purpose?
Mr. Boren: It does not. It does not preclude any of the
purposes in the substantive law.
Mr. Case: I wonder if the gentleman would explain this. My
understanding of a limitation is that it restricts the
appropriation to a portion of the original purposes. You cannot
expand an appropriation but you can restrict it. If the use of the
word ``only'' limits to only a certain part of the basic
appropriation, then it is a restriction and a limitation.
Mr. Boren: My amendment does not in any iota expand or take in
any new purposes. It limits the practice that is going on.
The reason I answered the gentleman as I did is, I am
unwilling, in my own judgment, to hold that the other practices
outside of this limitation are justified by law, but it does limit
them in some of the practices they are carrying on that they are
claiming come under the law. . . .
The Chairman: The Chair is ready to rule.
Reference has been made to similar amendments that have been
heretofore presented. It has also been stated that the language of
the amendment offered is identical with an amendment presented on
April 19, 1943, but an examination of the amendment offered at that
time will show that the language was considerably and materially
different than the language of the proposed amendment. Aside from
that, the Chair is more anxious to be correct than perhaps
consistent.
Mr. Poage: Mr. Chairman, I do not want it to be understood that
I said that the wording of these amendments were identical.
The Chairman: The Chair did not so state that the gentleman or
any other Member said that. That was brought to the attention of
the Chair a few minutes ago. As the Chair stated, he is more
interested in being correct than consistent.
Inasmuch as it is conceded that the language of the first
proviso is the language of the substantive law except for the word
``only,'' the first proviso is a limitation, and in view of the
fact the second proviso is also a limitation, the point of order is
overruled.
Parliamentarian's Note: The ruling referred to by Mr. Poage, of
Apr. 19, 1943, and the amendment that was ruled out as legislation,
were as follows: (1)
---------------------------------------------------------------------------
1. Under consideration was H.R. 2481, the Agriculture Department
appropriation bill of 1944. The Chairman on that occasion also
was William M. Whittington (Miss.)
---------------------------------------------------------------------------
The Chairman: The Chair is ready to rule.
The gentleman from Oklahoma offers an amendment to the
amendment offered by the gentleman from Mississippi [Mr. Rankin] in
the following words:
[[Page 5646]]
Provided, That these loans shall be exclusively for the
purpose of financing the construction and operation of
generating plants, electric transmission and distribution lines
or systems for the furnishing of electric energy to persons in
rural areas who are not receiving central station service.
The Chair is unable to see where there is any limitation in the
language used and concludes it is legislation, therefore sustains
the point of order.
Renegotiation Act Made Applicable to Contracts Under the Appropriation
Sec. 23.16 To the appropriation for the Tennessee Valley Authority, an
amendment proposing to make contracts entered into by the Authority
and by the Atomic Energy Commission subject to the Renegotiation
Act was held to be legislation on an appropriation bill and not in
order.
On Dec. 15, 1950,(2) during consideration in the
Committee of the Whole of a supplemental appropriation bill (H.R 9920),
a point of order was raised against the following amendment, and
proceedings ensued as indicated below:
---------------------------------------------------------------------------
2. 96 Cong. Rec. 16672-74, 81st Cong. 2d Sess.
---------------------------------------------------------------------------
Mr. [Francis H.] Case of South Dakota: Mr. Chairman, I offer an
amendment.
The Clerk read as follows:
Amendment offered by Mr. Case of South Dakota: Page 11
after line 12, insert a new section, as follows:
``Renegotiation of Contracts
``Sec. 602. (a) All negotiated contracts for procurement in
excess of $1,000 entered into during the current fiscal year by
or on behalf of the Atomic Energy Commission and the Tennessee
Valley Authority, and all subcontracts thereunder in excess of
$1,000, are hereby made subject to the Renegotiation Act of
1948 in the same manner and to the same extent as if such
contracts and subcontracts were required by such act to contain
the renegotiation article prescribed in subsection (a) of such
act. Each contract and subcontract made subject to the
Renegotiation Act of 1948 by this section shall contain an
article stating that it is subject to the Renegotiation Act of
1948. . . .''
Mr. [Albert A.] Gore [of Tennessee]: . . . Mr. Chairman, the
amendment offered by the distinguished and able gentleman from
South Dakota, is a lengthy, complicated, and far-reaching one. . .
. It operates as an amendment of the renegotiation law. . . .
The Chairman: (3) The gentleman from South Dakota
[Mr. Case] has offered an amendment which has been reported. The
gentleman from Tennessee [Mr. Gore] has made a point of order
against the amendment, on the ground that it contains legislation
on an appropriation bill.
---------------------------------------------------------------------------
3. Jere Cooper (Tenn.).
---------------------------------------------------------------------------
Mr. Case of South Dakota: Mr. Chairman, I concede the point of
order.
The Chairman: The gentleman concedes the point of order, and
therefore the Chair sustains the point of order.
[[Page 5647]]
Exception From Limitation Applying Standard of Existing Law
Sec. 23.17 To a paragraph in a general appropriation bill denying use
of funds in the bill for direct assistance to several designated
countries, an amendment permitting availability of those funds for
assistance to some of those countries in accordance with the
requirements of section 116 of the Foreign Assistance Act (which
prohibits assistance under part I thereof to all countries engaging
in patterns of violations of internationally recognized human
rights unless such assistance will directly benefit the needy
people in such country) was held a proper exception from a
limitation which did not add legislation since the amendment would
allow assistance only pursuant to determinations already required
by existing law as to the qualifications of all recipient
countries.
On Aug. 3, 1978,(4) during consideration in the
Committee of the Whole of the foreign assistance appropriation bill
(H.R. 12931), a point of order was raised against the following
amendment:
---------------------------------------------------------------------------
4. 124 Cong. Rec. 24249, 24250, 95th Cong. 2d Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
Amendment offered by Mr. [Tom] Harkin [of Iowa]: Page 11,
strike out the period on line 17 and insert in lieu thereof'',
except that funds appropriated or made available pursuant to
this Act for assistance under part I of the Foreign Assistance
Act of 1961 (other than funds for the Economic Support Fund or
peacekeeping operations) may be provided to any country named
in this section (except the Socialist Republic of Vietnam) in
accordance with the requirements of section 116 of the Foreign
Assistance Act of 1961.''. . .
Mr. [Clarence D.] Long of Maryland: Mr. Chairman, I do make a
point of order against the Harkin amendment. . . .
The gentleman's amendment clearly would place substantial
additional new duties on officers of the Government. Mr. Chairman,
in chapter 26, section 11.1, of ``Deschler's Procedures,'' the
following is stated:
But when an amendment, while curtailing certain uses of
funds carried in the bill, explicitly places new duties on
officers of the government or implicitly requires them to make
investigations, compile evidence, or make judgments and
determinations not otherwise required of them by law, then it
assumes the character of legislation and is subject to a point
of order.
Mr. Chairman, the gentleman's amendment intends that aid should
be provided to certain countries if such assistance will directly
benefit the needy people in such countries. Several legislative
provisions currently exist that presently provide for such deter
[[Page 5648]]
minations, but these provisions do not apply to all the funds
appropriated in this bill.
In addition, the gentleman's amendment would require officials
to make judgments and determinations that they are not required to
make at the present time. We presently have no AID programs or AID
missions in any of these countries. In two of the countries we do
not have diplomatic relations, Vietnam and Cambodia. In one country
we have no U.S. Government representative, and that country is
Uganda. The gentleman's amendment would not only allow direct
assistance to flow to these countries, which is not now possible,
but also would require some U.S. Government official to determine
if the assistance is reaching the needy. This would require a U.S.
Government official to travel to these countries to make an onsite
inspection since there are no AID missions in any of these
countries and no U.S. Government representation present in three of
the countries. The gentleman's amendment definitely places
substantial additional duties on U.S. Government officials.
Also current law prohibits any direct assistance to Vietnam,
Laos, Cambodia, Uganda, Mozambique, or Angola. The gentleman's
amendment would allow direct assistance to flow to these countries
if the assistance would benefit the needy people. This in effect
changes the existing law. The amendment is legislative in nature
and in violation of clause 2, rule XXI. . . .
Mr. Harkin: Mr. Chairman, by the fact that I have included
section 116 of the Foreign Assistance Act of 1961, by that very
inclusion those four countries so named and listed are then put in
the category of being gross violators of human rights, and because
of the inclusion, then, of section 116, which I have laid out in my
amendment, there are no new duties imposed in my amendment--only
the requirements of existing law. . . .
Mr. Long of Maryland: I would simply say that we do not have
missions in these countries, and the duties that would be required,
to find out whether needy people would get the money, would require
us to send people there. That clearly imposes duties on the
Government which are not implied in the current legislation.
The Chairman: (5) The Chair is ready to rule.
---------------------------------------------------------------------------
5. Abraham Kazen, Jr. (Tex.).
---------------------------------------------------------------------------
According to the amendment, the only funds that the amendment
refers to are funds provided for in the bill, and the only
exception would be to the Socialist Republic of Vietnam; but funds
are to be provided in accordance with the requirements of law and
the law cited is, on its face, applicable to the countries covered
by the amendment; so the Chair does not see that there are any new
duties imposed on anyone by the amendment. Therefore, the Chair
respectfully overrules the point of order.
Restriction of Funds--But Requiring Finding of Intent Not Required by
Law
Sec. 23.18 An amendment to the District of Columbia appropriation bill
denying use of funds to grant business licenses to persons who
offer
[[Page 5649]]
for sale in the course of business drug paraphernalia, as defined
in a Model Drug Paraphernalia Act which required findings of intent
that certain articles for sale be intended for use in drug
preparation or use, was ruled out as legislation requiring new
duties and judgments of government officials.
On Sept. 22, 1981,(6) during consideration in the
Committee of the Whole of the District of Columbia appropriation for
fiscal year 1982 (H.R. 4522), a point of order against an amendment was
sustained as follows:
---------------------------------------------------------------------------
6. 127 Cong. Rec. 21576, 21577, 97th Cong. 1st Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
Amendment offered by Mr. [Charles E.] Bennett [of Florida]:
Page 20, after line 25, insert the following new section:
Sec. 124. None of the funds appropriated in this Act may be
used to grant a business license to any person who, after the
date of enactment of this Act, offers drug paraphernalia (as
defined in the Model Drug Paraphernalia Act drafted by the
United States Department of Justice, August 1979) for sale in
the course of the business for which such license is required.
Mr. [Julian C.] Dixon [of California]: Mr. Chairman, I make a
point of order that the amendment of the gentleman violates clause
2 of rule XXI of the House in that it would impose additional
duties on the District's licensing officials who have to either
inspect all places that are doing business to determine whether
they are selling such items; but probably more importantly, they
would have to determine the intent for which such items would be
used. . . .
Mr. Bennett: . . . [T]he amendment does not impose any
additional duties, because the term drug paraphernalia is very
specifically defined in the DEA's Model Act, which has been adopted
already by 23 States and, of course, it would not create additional
duties, because the District already employs license inspectors who
routinely visit establishments of vendors who have such a license.
The Chairman: (7) . . . The question is a difficult
one, but after consultation with the Parliamentarian and in
reviewing precedents, the Chair finds, and quotes directly from
page 537 of the House Rules and Manual:
---------------------------------------------------------------------------
7. William R. Ratchford (Conn.).
---------------------------------------------------------------------------
Where an amendment to or language in a general
appropriation bill implicitly places new duties on officers of
the government or implicitly requires them to make
investigations, compile evidence, or make judgments and
determinations not otherwise required of them by law, such as
to judge intent or motives, then it assumes the character of
legislation and is subject to a point of order.
The Model Act incorporated by reference in the amendment
requires a determination that the drug equipment being sold be
intended for use in connection with drug preparation or use.
The Chair, therefore, rules that the point of order is well
taken and the point of order is sustained.
[[Page 5650]]
Restricting Discretion and Requiring Determinations--Where Legal
Rrequirement for Such Duties Is Not Explicit
Requiring New Determination ``In Accordance With Existing Law''--Burden
of Citing Law
Sec. 23.19 The burden of proof is on the proponent of an amendment to a
general appropriation bill to show that a proposed executive
determination is required by existing law, and the mere recitation
that the determination is to be made pursuant to existing law and
regulations, absent a citation to the law imposing that
responsibility, is not sufficient to overcome a point of order that
the amendment constitutes legislation.
On Sept. 16, 1980,(8) during consideration in the
Committee of the Whole of the Department of Defense appropriation bill
(H.R. 8105), a point of order against an amendment was sustained as
follows:
---------------------------------------------------------------------------
8. 126 Cong. Rec. 25606, 25607, 96th Cong. 2d Sess.
---------------------------------------------------------------------------
. . . No funds herein appropriated shall be used for the
payment of a price differential on contracts hereafter made for the
purpose of relieving economic dislocations: Provided further, That
none of the funds appropriated in this Act shall be used except
that, so far as practicable, all contracts shall be awarded on a
formally advertised competitive bid basis to the lowest responsible
bidder.
The Clerk read as follows:
Amendment offered by Mr. [Joseph P.] Addabbo [of New York]:
Page 41, line 23, strike out ``Provided further,'' and all that
follows through 'economic dislocations:' on page 42, line 1,
and insert in lieu thereof ``Provided further, That no funds
herein appropriated shall be used for the payment of a price
differential on contracts hereafter made for the purpose of
relieving economic dislocations other than contracts made by
the Defense Logistics Agency and such other contracts of the
Department of Defense as may be determined by the Secretary of
Defense pursuant to existing laws and regulations as not to be
inappropriate therefor by reason of national security
considerations:''. . .
Mr. [Jack] Edwards of Alabama: Mr. Chairman, I make a point of
order against the amendment as legislation in a general
appropriation bill, and therefore in violation of clause 2 of rule
XXI.
I respectfully direct the attention of the Chair to Deschler's
Procedure, chapter 25, section 11.2 which states:
It is not in order to make the availability of funds in a
general appropriation bill contingent upon a substantive
determination by an executive official which he is not
otherwise required by law to make.
I also respectfully direct the attention of the Chair to
section 843 of the House Manual, which states in part:
The fact that a limitation on the use of funds may . . .
impose certain
[[Page 5651]]
incidental burdens on executive officials does not destroy the
character of the limitation as long as it does not directly
amend existing law and is descriptive of functions and findings
already required to be undertaken under existing law. . . .
Mr. Chairman, the amendment prohibits the payment of price
differentials on contracts except--and I quote:
As may be determined by the Secretary of Defense pursuant
to existing laws and regulations as not to be inappropriate
therefor by reason of national security considerations.
The exception makes the availability of funds for payment of
price differentials contingent on a substantive determination by
the Secretary of Defense which is not now required under the
current law. Although the determination is limited ``pursuant to
existing laws and regulations,'' there is no existing law at the
present time, and if this amendment is enacted, it will constitute
the existing law and require this new determination. . . .
The Chairman: (9) The Chair is ready to rule.
---------------------------------------------------------------------------
9. Daniel D. Rostenkowski (Ill.).
---------------------------------------------------------------------------
The amendment would appear to call for a determination by the
Secretary of Defense as to appropriateness by reason of national
security considerations. Unless the gentleman from New York (Mr.
Addabbo) can cite to the Chair those provisions of existing law
requiring such determinations with respect to defense contracts,
the Chair must conclude that the amendment would impose new duties
upon the Secretary and would constitute legislation.
Restriction on Use of Funds
Language Implying Cooperation With Other Government Agencies ``Where
Authorized by Law''
Sec. 23.20 A provision in an amendment to a general appropriation bill
containing funds for an FTC collection of line-of-business data
from not more than 250 firms including data presently made
available to the Bureau of Census, Securities and Exchange
Commission and other government agencies where authorized by law
was held not to change existing law relating to agency authority
for collection of such data.
On June 21, 1974, (10) during consideration in the
Committee of the Whole of H.R. 15472 (Department of Agriculture,
environment and consumer appropriation bill), an amendment was held in
order as follows:
---------------------------------------------------------------------------
10. 120 Cong. Rec. 20601, 20602, 93d Cong. 2d Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
Amendment offered by Mr. [Jamie L.] Whitten [of
Mississippi]: Page 47, line 6, after the word ``data'' add the
following: ``Provided, That none of these funds shall be used
for collecting line-of-business data from not [sic] more than
250 firms, including
[[Page 5652]]
data presently made available to the Bureau of the Census, the
Securities and Exchange Commission and other government
agencies where authorized by law.''. . .
Mr. [Bob] Eckhardt [of Texas]: Mr. Chairman, the point of order
is under House Rule XXI, clause 2, second sentence. . .
Now, under existing law and without the limitations reported to
be added in this bill the Federal Trade Commission could and had
intended--and, of course, what it actually intended is not material
here, because the question is what it could have done--it could
have used the funds as appropriated here for either 250 firms or
500 firms or any other number of firms. So what is done by this
amendment is to restrict the Federal Trade Commission with respect
to powers and duties and authorities which it would have but for
this limitation.
The authorities on this point appear in volume VII of Cannon's
Precedents, section 1675, which reads:
A proper limitation does not interfere with executive
discretion or require affirmative action on the part of the
Government officials. . . .
It would also require liaison with the Bureau of Census, the
Securities and Exchange Commission, and other Government agencies
which are not here designated but which would cover the whole gamut
of such agencies.
So it both provides a limitation on executive discretion and
affirmative acts on the part of Government officials. . . .
Mr. [John] Melcher [of Montana]: . . . Public Law 93-153
authorizes line-of-business data to be collected by independent
regulatory agencies subject to certain procedures. It did not limit
or restrict the collection of this data to any specific number of
firms, as the gentleman's amendment would; he would change this
policy by arbitrarily limiting the collection of the data
specifically to 250 firms.
In addition, Mr. Chairman, Public Law 93-153 does not authorize
the collection of line-of-business data from the Bureau of the
Census of the Security and Exchange Commission. This authority was
placed in an ``independent regulatory agency.''. .
The Chairman: (11) The Chair is ready to rule.
---------------------------------------------------------------------------
11. Sam Gibbons (Fla.).
---------------------------------------------------------------------------
First, let the Chair state that this subject contains a very
vexing point, and it is one that has required a lot of attention of
the Chair, even prior to the arguments here.
The words in contest on this point of order are the following
words added by the amendment:
. . . provided that none of the funds shall be used for
collecting line-of-business data from not more than 250 firms,
including data presently made available by the Bureau of the
Census, the Securities and Exchange Commission, and other
government agencies where authorized by law.
It is clear to the Chair that the words ``provided that none of
these funds shall be used for collecting line of business data of
not more than 250 firms'' may clearly be added as an amendment to a
general appropriation bill, and it is in order. The Committee on
Appropriations could have refused to bring in any appropriation at
all for
[[Page 5653]]
this agency, and the committee seeks by this amendment to put a
limitation upon the use of funds available to the FTC. The
limitation is drafted as a restriction on the use of funds, and not
as an affirmative restriction on the scope of the FTC
investigation, as was the case in the language stricken from the
bill on the preceding point of order.(12)
---------------------------------------------------------------------------
12. See Sec. 51.18, infra, for discussion of the earlier point of order
referred to by the Chair.
---------------------------------------------------------------------------
The remainder of the amendment raises some question, but in the
opinion of the Chair, these words are clearly limited by ``where
authorized by law,'' and do not permit the Census Bureau or the SEC
to initiate line of business investigations, so the Chair is going
to rule that the amendment is in order and that the points of order
are overruled.
Restriction of Funds Based on Determinations Already Required by Law
Sec. 23.21 An amendment to a general appropriation bill prohibiting the
use of funds therein to pay salaries of federal employees who
assess civil penalties on small farmers for violations of the
Occupational Health and Safety Act which are neither willful,
repeated, nor serious was held not to require new determinations
and not to violate Rule XXI clause 2, where it was shown that
existing law (29 USC Sec. 666) already required those precise
determinations to be made in assessing penalties under that act.
On June 24, 1976,(13) during consideration in the
Committee of the Whole of the Departments of Labor and Health,
Education, and Welfare appropriation bill, a point of order against an
amendment was overruled as follows:
---------------------------------------------------------------------------
13. 122 Cong. Rec. 20373, 20374, 94th Cong. 2d Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
Amendment offered by Mr. [William D.] Ford of Michigan as a
substitute for the amendment offered by Mr. Skubitz: In lieu of
the matter proposed to be inserted by the amendment offered by
Mr. Skubitz, insert the following: ``: Provided, That none of
the funds appropriated under this paragraph shall be used to
pay the salary of any employee of the Department of Labor who
proposes the assessment of monetary penalties for any violation
which, under the provisions of section 17 of the Occupational
Safety and Health Act of 1970 is neither (1) willful, (2)
repeated, nor (3) serious, to any employer who is engaged in a
farming operation and employs 5 or fewer employees.''. . .
Mr. [Paul] Findley [of Illinois]: I make a point of order that
the amendment is not in order. It does not fall within the Holman
rule, and I would like to be heard on the point of order. . . .
Mr. Chairman, I have listened to the amendment. It was clear to
me that
[[Page 5654]]
this would require that a determination be made, first of all, that
a violation is willful; second, that a violation is repeated;
third, that a violation is serious. One of the conditions of the
Holman rule is that it not impose a burden upon the administration.
If this language does not impose a burden upon the administration,
I do not know what would. . . .
Mr. Ford of Michigan: . . . With all due respect to the
gentleman who is an expert on the amendment procedure, I am afraid
he did not fully hear the amendment as read, because what the
amendment says is that no employee of the Department of Labor who
proposes the assessment of monetary penalties for any violation--
any violation--which under the provisions of section 17 of the
Occupational Safety and Health Act of 1970 is defined as--and the
determination is already made by that section of the act. There is
no duty imposed on the Secretary that is in any way different from
the duty imposed presently by the statutory law that we are
appropriating this money for. We do not impose any new duty. He did
not draw any new definitions. It is simply a question of whether he
will assess monetary damages against a person who is accused of a
violation that falls within the purview of any one of these section
17 definitions. . .
Mr. [David R.] Obey [of Wisconsin]: . . . If we are going to
talk about additional duties imposed, then certainly if this
amendment is out of order, the original amendment ought to be out
of order because we have a letter from the U.S. Department of Labor
which outlines some of the additional duties required in fact by
the original amendment. Under the amendment offered by the
gentleman from Kansas (Mr. Skubitz) they would have to issue new
regulations, they would have to draw up new forms, they would have
to monitor recordkeeping by farmers, they would have to change the
inspector instruction manual, they would have to verify employment
records, and a number of other duties. So I certainly think the
same latitude extended to the original amendment ought to be
extended to the substitute.
The Chairman: (14) May the Chair inquire of the
gentleman from Michigan, did the Chair understand the gentleman
from Michigan to declare that section 17 of the Occupational Safety
and Health Act of 1970 in its present form already requires the
determinations on the part of the Administrator as to willfulness,
repetition, or seriousness of offenses?
---------------------------------------------------------------------------
14. James C. Wright, Jr. (Tex.).
---------------------------------------------------------------------------
Mr. Ford: That is correct.
The Chairman: . . . The Chair is prepared to rule.
Basing the Chair's assumption upon the interpretation of
existing law as described by the gentleman from Michigan, the Chair
finds that there would be no additional duties imposed upon the
Administrator, no additional determinations required of him, and
the amendment merely describes determinations already required by
existing law and is essentially, therefore, a limitation upon the
appropriation.
Under the rules the Chair would overrule the point of order.
[[Page 5655]]
Denial of Funds to Implement Executive Order
Limitation May Contain Language Conforming to Legal Authority it Seeks
to Restrict
Sec. 23.22 As it is in order by way of a limitation on an appropriation
bill to deny the use of funds therein for implementation of an
Executive order, an amendment precisely describing the contents of
the Executive order does not for that reason violate Rule XXI
clause 2.
On Mar. 16, 1977,(15) an amendment to a general
appropriation bill prohibiting the use of funds therein for salaries or
expenses connected with dismissal of any pending indictments, or
termination of any pending investigation of violations of the Military
Selective Service Act, or to permit persons to enter the United States
who committed or apparently committed violations of that act--the exact
determinations required by an Executive order issued pursuant to law by
the President to implement his pardon program for draft evaders--was
held in order as a limitation, not requiring new determinations by
federal officials, which merely denied the availability of funds to
implement the Executive order. The proceedings were as indicated below:
---------------------------------------------------------------------------
15. 123 Cong. Rec. 7748, 7749, 95th Cong. 1st Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
Amendment offered by Mr. John T. Myers [of Indiana]: On
page 72, after line 27, add the following new section:
``Sec. 305. None of the funds appropriated or otherwise
made available in this Act shall be obligated or expended for
salaries or expenses in connection with the dismissal of any
pending indictments for violations of the Military Selective
Service Act alleged to have occurred between August 4, 1964 and
March 28, 1973, or the termination of any investigation now
pending alleging violations of the Military Selective Service
Act between August 4, 1964 and March 28, 1973, or permitting
any person to enter the United States who is or may be
precluded from entering the United States under 8 U.S.C. 1182
(a)(22) or under any other law, by reason of having committed
or apparently committed any violation of the Military Selective
Service Act.'' . . .
Mr. [Sidney R.] Yates [of Illinois]: Mr. Chairman, I make a
point of order that [the amendment] is legislation in an
appropriations bill, obviously legislation in an appropriations
bill. . . .
Mr. John T. Myers . . . This is a limiting amendment. This
Congress has adopted similar language a great many times limiting
how the funds so appropriated may be used. I do not by any means
wish to challenge or question the authority the Executive has in
issuing a pardon. That is a constitutional responsibility or right
that the Executive has. But this Congress has the constitutional
responsibility and right to appropriate money. All this
[[Page 5656]]
amendment does is limit how that money shall be spent again by an
exercise that this Congress has used a great many times.
It is a negative restriction of funds. It is consistent exactly
with the language that was used in the Executive order relating to
the program of pardon. This amendment does not change existing law
nor does it impose additional duties. The language of the amendment
conforms exactly to the language of that Executive order. . . .
The constitutional argument is a moot one, I feel. Whatever the
constitutional powers of the President may be, there is no
obligation upon the Congress, there never has been, that we have to
appropriate the money. . . .
The Chairman: (16) . . . The Chair is constrained to
rule that the amendment does not directly impose additional duties
upon the Executive, the amendment may have the effect of
restricting Executive discretion by a simple negative use of the
appropriation but the determinations to be made are already
required by law and the Executive order and are not new
determinations. The point of order is overruled.
---------------------------------------------------------------------------
16. Walter Flowers (Ala.).
---------------------------------------------------------------------------
Exception to Limitation if President Makes a Determination Already
Required by Law
Sec. 23.23 Where existing law (50 USC App. 2403(c), 2406(g)) permitted
the President to impose export controls, specifically on
agricultural commodities not in short domestic supply, unless he
and the Secretary of Agriculture determined that the absence of
controls would be detrimental to the foreign policy or national
security of the United States, an amendment to a general
appropriation bill prohibiting the use of funds therein for export
controls on agricultural commodities unless subsequently imposed
solely for those reasons was allowed; the amendment's impact on
discretionary authority with respect to commodities in short supply
was, however, subsequently cited in debate and, if cited earlier,
might have led to modification of the Chair's ruling.
On July 23, 1980,(17) during consideration in the
Committee of the Whole of H.R. 7584 (Departments of State, Justice,
Commerce, and the Judiciary appropriation bill), the following
amendment was held in order:
---------------------------------------------------------------------------
17. 126 Cong. Rec. 19295, 96th Cong. 2d Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
Amendment offered by Mr. [E. Thomas] Coleman [of Missouri]
to the amendment offered by Mr.
[[Page 5657]]
[Mark] Andrews of North Dakota: (18) after the word
``commodity'' in the last line insert: ``unless on or
subsequent to October 1, 1980, the President imposes a
restriction on the export of any such commodity solely on the
basis that such export would prove detrimental to the foreign
policy or national security of the United States''. . . .
---------------------------------------------------------------------------
18. The Andrews amendment provided: ``None of the funds appropriated by
this Act may be used to carry out or enforce any restriction on
the export of any agricultural commodity.'' See 126 Cong. Rec.
19087, 96th Cong. 2d Sess., July 22, 1980.
---------------------------------------------------------------------------
Mr. [Silvio O.] Conte [of Massachusetts]: Mr. Chairman, I make
a point of order against the amendment in that it exceeds the
limitation and imposes additional duties upon the President of the
United States. . . .
Mr. Coleman: . . . Mr. Chairman, the point of order is not well
taken because my amendment does not establish any new additional
duties. It simply says that if the President of the United States
subsequent to October 1, 1980, imposes an embargo then none of
these funds shall be used to fund that embargo. It imposes
absolutely no new duties. It simply states that if the President on
his own takes some action, that none of these funds shall be used
to support that action. . . .
The Chairman: (19) The Chair is prepared to rule.
---------------------------------------------------------------------------
19. George E. Brown, Jr. (Calif.).
---------------------------------------------------------------------------
The gentleman from Massachusetts (Mr. Conte) makes a point of
order against the amendment of the gentleman from Missouri (Mr.
Coleman) on the grounds that it imposes an additional duty, and
constitutes legislation on an appropriation bill. Ordinarily, such
Presidential determination language on an appropriation bill would
constitute legislation, but the amendment only repeats verbatim the
determination authority contained in the section of existing law
(section 4(c) of the Export Administration Act of 1979) which has
been called to the Chair's attention.
Therefore, the amendment does not constitute new legislation in
any way discernible to the Chair.
Limitation Restating Language in Authorization Bill
Sec. 23.24 While a limitation on the use of funds in a general
appropriation bill does not constitute a violation of Rule XXI
clause 2 if it merely restates identical language in existing law,
the legislation in question must have been signed into law.
On Aug. 4, 1978,(20) during consideration in the
Committee of the Whole of the foreign aid appropriation bill (H.R.
12931), a point of order against the following amendment was sustained:
---------------------------------------------------------------------------
20. 124 Cong. Rec. 24436, 24437, 95th Cong. 2d Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
Amendment offered by Mr. [Henry A.] Waxman [of California]:
On page 13 of the bill after line 16, insert the following new
section:
``Sec. 116. Funds appropriated or made available in this
act for inter
[[Page 5658]]
national narcotics control shall not be used for the
eradication of marijuana through the use of the herbicide
paraquat, unless the paraquat is used in conjunction with
another substance or agent which will effectively warn
potential users of marijuana that paraquat has been used on
it.'' . . .
Mr. [Robert E.] Bauman [of Maryland]: Mr. Chairman, I make a
point of order against the amendment because it is not a proper
limitation on an appropriation bill but is legislation on an
appropriation bill. It requires additional duties of some person or
persons in the Government, not only to determine whether or not the
herbicide named is being used but to go beyond that and also
determine whether it is being used in conjunction with another
substance as a warning, and so on. None of this is authorized by
law. It is legislation on an appropriation bill. . . .
Mr. Waxman: Mr. Chairman, the authorization bill has similar
language that would provide for this kind of restriction in the use
of the money and I would consider it an essential point of what we
are trying to accomplish in the appropriation bill. . . .
Mr. Chairman, the authorization bill has similar language that
would provide for this kind of restriction of the use of money I
would consider it an essential part of what we are trying to
accomplish in the appropriations bill.
The Chairman: (1) The Chair is ready to rule.
---------------------------------------------------------------------------
1. Abraham Kazen, Jr. (Tex.).
---------------------------------------------------------------------------
The Chair will inform the gentleman from California (Mr.
Waxman) that the authorization bill is not as yet law. Were it law,
the gentleman's amendment might be authorized and in order, but at
this point the Chair will, very respectfully, sustain the point of
order.
CHAPTER 26
Unauthorized Appropriations; Legislation on Appropriation Bills
C. PROVISIONS AS ``CHANGING EXISTING LAW,'' GENERALLY
Sec. 24. Construing Existing Law; Repealing Existing Law
Generally, language in an appropriation bill proposing to repeal
existing law is legislation and not in order. Similarly, an amendment
in the form of a limitation but construing or interpreting existing law
is legislation and not in order on an appropriation bill.
It is important to note, however, that some amendments have been
permitted which resulted in an application or use of funds different
from that contemplated in existing law. This may occur where the
language of the amendment is drafted strictly as a negative limitation
or restriction on the use of funds, and does not explicitly change a
formula for distribution or allocation of funds that is prescribed in
existing law.(2)
---------------------------------------------------------------------------
2. For discussion of criteria applicable in determining whether a
provision comprises language of ``negative limitation,'' see
Sec. 64, infra.
Also of interest is a ruling on Mar. 4, 1954, discussed in
Sec. 74.3, infra. In that instance the Chair ruled that, where
an amendment to an appropriation bill provided that no part of
any appropriation in the bill be used for compensation of any
officer or employee of a designated bureau who for the purposes
of the Hatch Act, ``shall not be included within the
construction of the term ``officer'' or ``employee,'' the
language was in order as a limitation. The determinations of
employment status were, it should be noted, already required by
law.
---------------------------------------------------------------------------
[[Page 5659]]
-------------------
General Rule
Sec. 24.1 Language in an appropriation bill proposing to repeal
existing law is legislation and not in order.
On Jan. 31, 1936,(3) during consideration in the
Committee of the Whole of the Interior Department appropriation bill
(H.R. 10630), a point of order was raised against the following
amendment:
---------------------------------------------------------------------------
3. 80 Cong. Rec. 1308, 74th Cong. 2d Sess.
---------------------------------------------------------------------------
Mr. [Roy E.] Ayers [of Montana]: Mr. Chairman, I offer an
amendment, which I send to the desk.
The Clerk read as follows:
Amendment offered by Mr. Ayers: Page 48, line 14, insert a
paragraph, as follows:
``That portion of section 1 of the act approved August 12,
1935 (49 Stat. 571-584), known as the Second Deficiency
Appropriation Act, fiscal year 1935, providing $806,000 for
construction, enlargement, or improvement of public-school
buildings as authorized by and in conformity with numerous acts
of the Seventy-fourth Congress, approved June 7, 1935, fiscal
year 1936, is hereby amended so as to repeal the provisions for
recoupment by the United States, on account of expenditures
thereunder, and the amounts appropriated for assistance of the
said public-school districts are hereby declared to be an
outright grant to the various public-school districts mentioned
therein.''
Mr. [Edward T.] Taylor [of Colorado]: Mr. Chairman, I make a
point of order against the amendment on two grounds; first, it is
clearly legislation and has no business in this bill; and,
secondly, it is not germane, because we have considered and passed
the provision in the bill where it should have been offered.
The Chairman: (4) The Chair is ready to rule. The
amendment offered by the gentleman from Montana [Mr. Ayers]
proposes to repeal legislation; therefore the point of order is
sustained.
---------------------------------------------------------------------------
4. Robert L. Doughton (N.C.).
---------------------------------------------------------------------------
Limit on Number of Housing Units
Sec. 24.2 To an appropriation bill an amendment repealing a provision
of existing law (contained in a prior appropriation bill) which had
placed a limit upon the number of dwelling units which the Public
Housing Administration could authorize to be constructed in certain
years was held to be legislation.
[[Page 5660]]
On Mar. 30, 1954,(5) during consideration in the
Committee of the Whole of the independent offices appropriation bill
(H.R. 8583), a point of order was raised against the following
amendment:
---------------------------------------------------------------------------
5. 100 Cong. Rec. 4128, 83d Cong. 2d Sess.
---------------------------------------------------------------------------
Amendment offered by Mr. [Abraham J.] Multer [of Illinois]: On
page 29, at line 12, insert a new section:
``That part of Public Law 176 of the 83d Congress (an
appropriation measure), reading: `Provided further, That
notwithstanding the provisions of the United States Housing Act
of 1937, as amended, the Public Housing Administration shall
not, with respect to projects initiated after March 1, 1949,
(1) authorize during the fiscal year 1954 the commencement of
construction of in excess of 20,000 dwelling units or (2) after
the date of approval of this act, enter into any new
agreements, contracts, or other arrangements, preliminary or
otherwise, which will ultimately bind the Public Housing
Administration during fiscal year 1954 or for any future years
with respect to loans or annual contributions for any
additional dwelling units or projects unless hereafter
authorized by the Congress to do so, and during the fiscal year
1954 the Housing and Home Finance administrator shall make a
complete analysis and study of the low-rent public housing
program and, on or before February 1, 1954, shall transmit to
the Appropriations Committees of the House and Senate his
recommendations with respect to such low-rent public program,'
is hereby repealed.''
Mr. [John] Phillips [of California]: Mr. Chairman, a point of
order.
The Chairman: (6) The gentleman will state it.
---------------------------------------------------------------------------
6. Louis E. Graham (Pa.).
---------------------------------------------------------------------------
Mr. Phillips: Mr. Chairman, I make a point of order against the
amendment, that the Chair has already ruled against similar
amendments twice on the ground that it is legislation on an
appropriation bill. I make the same point now. It changes existing
law, Mr. Chairman. . . .
The Chairman: The Chair is prepared to rule. The language of
the amendment is obnoxious to the rule prohibiting legislation on
an appropriation bill. It seeks to repeal existing legislation, and
therefore the amendment is itself legislation.
The Chair sustains the point of order.
Ending Future Authorization
Sec. 24.3 In an appropriation bill, where an appropriation is
authorized by a law which would remain effective in the future,
words designating an appropriation as ``a final appropriation'' for
``completing'' acquisition of certain land under authority of such
law were held to constitute legislation.
On Mar. 30, 1954,(7) during consideration in the
Committee of the Whole of the independent offices appropriation bill
(H.R. 8538), a point of order was raised against the following
provision:
---------------------------------------------------------------------------
7. 100 Cong. Rec. 4128, 83d Cong. 2d Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
[[Page 5661]]
Land acquisition, National Capital park, parkway, and
playground system: As a final appropriation under authority of
the act of May 29, 1930 (46 Stat. 482), as amended, for
necessary expenses for the National Capital Planning Commission
for completing acquisition of land for the park, parkway, and
playground system of the National Capital, to remain available
until expended, $545,000, of which (a) $135,000 shall be
available for the purposes of section 1 (a) of said act of May
29, 1930, (b) $126,000 shall be available for the purposes of
section 1(b) thereof, and (c) $284,000 shall be available for
the purposes of section 4 thereof: Provided, That not exceeding
$26,450 of the funds available for land acquisition purposes
shall be used during the current fiscal year for necessary
expenses of the Commission (other than payments for land) in
connection with land acquisition.
Mr. [Howard W.] Smith of Virginia: Mr. Chairman, a point of
order.
The Chairman: (8) The gentleman will state it.
---------------------------------------------------------------------------
8. Louis E. Graham (Pa.).
---------------------------------------------------------------------------
Mr. Smith of Virginia: Mr. Chairman, I desire to interpose a
point of order to the language contained in line 17 on page 35:
``as a final appropriation''; and on line 20 against the word
``completing.'' . . .
Mr. [John] Phillips [of California]: I will concede the point
of order.
The Chairman: The Chair sustains the point of order.
Rescission of Contract Authority
Sec. 24.4 Language in an appropriation bill rescinding a contract
authorization carried in a prior appropriation act is legislation
and not in order.
On May 1, 1951,(9) during consideration in the Committee
of the Whole of the Department of the Interior appropriation bill (H.R.
3790), a point of order was raised against the following provision:
---------------------------------------------------------------------------
9. 97 Cong. Rec. 4662, 82d Cong. 1st Sess.
---------------------------------------------------------------------------
For construction and improvement of facilities under the
jurisdiction of the Bureau of Mines, to remain available until
expended, $1,250,000: Provided, That the unused balance of the
contract authorization of $15,000,000 granted in the Interior
Department Appropriation Act, 1946, under the head ``Synthetic
liquid fuels,'' is hereby rescinded.
Mr. [Cleveland M.] Bailey [of West Virginia]: Mr. Chairman, I
make a point of order.
The Chairman: (10) The gentleman will state the
point of order.
---------------------------------------------------------------------------
10. Wilbur D. Mills (Ark.).
---------------------------------------------------------------------------
Mr. Bailey: Mr. Chairman, I make the point of order against the
language contained in line 19, page 25, beginning with the word
``Provided,'' and continuing through lines 19, 20, 21, and 22,
inclusive, on the ground that it is legislation on an appropriation
bill.
Mr. [Michael J.] Kirwan [of Ohio]: Mr. Chairman, we concede the
point of order.
The Chairman: The Chair sustains the point of order.
Parliamentarian's Note: Rescissions or deferrals of budget au
[[Page 5662]]
thority contained in general appropriation bills of previously
appropriated funds remain legislative despite jurisdiction conferred
upon the Appropriations Committee in Rule X to report separate
rescission bills under the Impoundment Control Act of 1974. The rules
change in 1974, which gave the Appropriations Committee jurisdiction
over rescissions of appropriations would not affect cases like the 1951
ruling above, involving rescission of a contract authorization.
Waiver of Previous Limitation
Sec. 24.5 A limitation in an appropriation bill having become law, a
provision in a subsequent appropriation bill for that fiscal year
seeking to waive this limitation was conceded to be legislation and
was ruled out on a point of order.
On Sept. 15, 1961,(11) during consideration in the
Committee of the Whole of a supplemental appropriation bill (H.R.
9169), a point of order was raised against the following provision:
---------------------------------------------------------------------------
11. 107 Cong. Rec. 19728, 87th Cong. 1st Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
Executive Office of the President
Council of Economic Advisers
Salaries and Expenses
For an additional amount for ``Salaries and expenses,''
$170,000: Provided, That the appropriations under this head
shall be available during the current fiscal year without
regard to the limitation on salaries appearing under this head
to the General Government Matters, Department of Commerce, and
Related Agencies Appropriation Act, 1962.
Mr. [Clare E.] Hoffman of Michigan: Mr. Chairman, I make a
point of order against the language on page 8, lines 14 to 22
inclusive, on the ground that it is legislation on an appropriation
bill.
Mr. [H. R.] Gross [of Iowa]: Mr. Chairman, I make the further
point of order against the language that it, in effect, amends
previous law by waiving limitations. . . .
Mr. [Albert] Thomas [of Texas]: I hope my colleagues will not
force us to offer an amendment. But we will accept it, if you
insist on it.
The Chairman: (12) The Chair is ready to rule. The
gentleman from Texas concedes the point of order.
---------------------------------------------------------------------------
12. Oren Harris (Ark.).
---------------------------------------------------------------------------
The point of order is sustained.
Repealing Restriction in Prior Appropriation Law
Sec. 24.6 An amendment to a supplemental appropriation bill, proposing
to repeal a provision of a prior appropriation act and having the
effect of
[[Page 5663]]
changing restrictions on the use of funds under that prior act, was
held to be legislation and was ruled out as in violation of Rule
XXI clause 2.
On Dec. 2, 1971,(13) during consideration in the
Committee of the Whole of a supplemental appropriation bill (H.R
11955), a point of order was raised against the following amendment:
---------------------------------------------------------------------------
13. 117 Cong. Rec. 44316, 92d Cong. 1st Sess.
---------------------------------------------------------------------------
Mr. [Thomas J.] Steed [of Oklahoma]: Mr. Chairman, I offer an
amendment.
The Clerk read as follows:
Amendment offered by Mr. Steed of Oklahoma.
On Page 15 after line 17 add the following sentence: The
first proviso in the second paragraph of title I of Public Law
92-48 is amended by striking the first proviso therein.
Mr. [Neal] Smith of Iowa: Mr. Chairman, I make a point of order
against the amendment.
The Chairman: (14) The gentleman will state his
point of order.
---------------------------------------------------------------------------
14. Jack B. Brooks (Tex.).
---------------------------------------------------------------------------
Mr. Smith of Iowa: My point is that the amendment refers to a
provision that was in an appropriations act but is now a public
law. Therefore, the gentleman is trying to amend a public law, and
that would be legislation upon an appropriation bill.
The Chairman: Does the gentleman from Oklahoma wish to be heard
on the point of order?
Mr. Steed: Yes, Mr. Chairman. The amendment deals with an
office which is included in the bill and involves funds that are
under the jurisdiction of the provisions of this bill. It is a
limitation and deals with a limitation.
Mr. [James G.] O'Hara [of Michigan]: Mr. Chairman, I ask to be
heard on the point of order. The provisions which the gentleman
from Oklahoma is now offering to strike was carried in the
Education Appropriation Act. An effort was made to strike the
provision out of the Education Appropriation Act on the ground it
was legislation on an appropriation. That point of order was
overruled. I do not see how an amendment offering to strike that
provision from the Education Appropriation bill could possibly be
legislation.
The Chairman: The Chair is ready to rule. . . .
Clearly, the amendment offered by the gentleman from Oklahoma
would repeal a provision in existing law and would thereby
constitute a change in the restrictions on the availability of
funds imposed by that law. The Chair holds that the amendment
constitutes legislation on an appropriation bill in violation of
clause 2, rule XXI, and sustains the point of order.
Repealing Expenditure Limit on Salaries and Expenses for Current Year
Sec. 24.7 A provision in an appropriation bill repealing a legislative
provision in a prior appropriation law that certain expenditures
during the fiscal year 1939 by the Na
[[Page 5664]]
tional Bituminous Coal Commission ``shall not exceed an amount
equal to the aggregate receipts covered into the Treasury under the
provisions of'' a specified statute was held to be legislation on
an appropriation bill and not in order.
On Mar. 22, 1939,(15) during consideration in the
Committee of the Whole of a deficiency appropriation bill (H.R. 5219),
a point of order was raised against the following provision:
---------------------------------------------------------------------------
15. 84 Cong. Rec. 3123, 76th Cong. 1st Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
The paragraph in the Second Deficiency Appropriation Act,
fiscal year 1938, under the caption ``National Bituminous Coal
Commission,'' is hereby amended by striking out the following
proviso: ``Provided, That expenditures during the fiscal year
1939 under this head and under the head `Salaries and expenses,
office of the Consumers' Counsel, National Bituminous Coal
Commission,' shall not exceed an amount equal to the aggregate
receipts covered into the Treasury under the provisions of
section 3 of the Bituminous Coal Act of 1937.''
Mr. [J. William] Ditter [of Pennsylvania]: Mr. Chairman, I make
the point of order against the paragraph that it is legislation on
an appropriation bill.
Mr. [Clifton A.] Woodrum of Virginia: Mr. Chairman, I concede
the point of order.
The Chairman: (16) The point of order of the
gentleman from Pennsylvania is conceded by the gentleman from
Virginia, and is therefore sustained.
---------------------------------------------------------------------------
16. William P. Cole, Jr. (Md.).
---------------------------------------------------------------------------
Sums Appropriated ``Without Regard to'' Specified Statutes
Sec. 24.8 In an appropriation for purchases related to the reindeer
industry in Alaska, a provision appropriating sums for the
purchase, in such manner as the Secretary of the Interior shall
deem advisable and without regard to sections 3709 and 3744 of the
Revised Statutes, of specified items, was conceded to be
legislation and not in order.
On Mar. 15, 1939,(17) the Committee of the Whole was
considering H.R. 4852, an Interior Department appropriation The Clerk
read as follows, and proceedings ensued as indicated below:
---------------------------------------------------------------------------
17. 84 Cong. Rec. 2789, 2790, 76th Cong. 1st Sess.
---------------------------------------------------------------------------
Reindeer industry, Alaska: For the purchase, in such manner as
the Secretary of the Interior shall deem advisable and without
regard to sections 3709 and 3744 of the Revised Statutes, reindeer,
abattoirs, cold-storage plants . . . and communication and other
equipment, owned by nonnatives in Alaska, as authorized by the act
of
[[Page 5665]]
September 1, 1937 (50 Stat. 900), $820,000 . . . Provided, That
under this appropriation not exceeding an average of $4 per head
shall be paid for reindeer purchased from nonnative owners:
Provided further, That the foregoing limitation shall not apply to
the purchase of reindeer located on Nunivak Island.
Mr. [John C.] Schafer of Wisconsin: Mr. Chairman, I make the
point of order against the paragraph on the ground that it is
legislation on an appropriation bill unauthorized by law. In fact,
the language clearly indicates that it repeals the specific
provisions of existing law as incorporated in sections 3709 and
3744 of the Revised Statutes.
The Chairman: (18) Does the gentleman from Oklahoma
desire to be heard?
---------------------------------------------------------------------------
18. Frank H. Buck (Calif.).
---------------------------------------------------------------------------
Mr. [Jed] Johnson of Oklahoma: No; I concede the point of
order.
The Chairman: The point of order is sustained.
CHAPTER 26
Unauthorized Appropriations; Legislation on Appropriation Bills
C. PROVISIONS AS ``CHANGING EXISTING LAW,'' GENERALLY
Sec. 25. Construction or Definition of Terms of Bill or Law
Descriptive Term
Sec. 25.1 An amendment proposing to insert the words ``known as `Rankin
Dam''' following an appropriation for Pickwick Landing Dam was held
to be legislation and not in order on an appropriation bill.
On May 8, 1936,(19) during consideration in the
Committee of the Whole of a deficiency appropriation bill (H.R 12624),
a point of order was raised against the following amendment:
---------------------------------------------------------------------------
19. 80 Cong. Rec. 6965-67, 74th Cong. 2d Sess.
---------------------------------------------------------------------------
Mr. [Aaron L.] Ford of Mississippi: Mr. Chairman, I offer
another amendment.
The Clerk read as follows:
Page 19, line 2, after the words ``Pickwick Landing Dam'',
insert the following: ``(known as `Rankin Dam').''
Mr. [John J.] McSwain [of South Carolina]: Mr. Chairman, I make
a point of order on the amendment that it is legislation on an
appropriation bill. It is evidently an attempt to change the name
and call it ``Rankin Dam.'' It is in the teeth of legislation that
has been attempted time and time again. There are bills before the
Committee on Military Affairs to change the name of this dam to
``Rankin Dam.''
Mr. [Harold] Knutson [of Minnesota]: I should like to ask the
gentleman if it is not customary to wait until the man is dead
before they name a dam for him?
Mr. McSwain: Yes; it is
The Chairman: (20) Does the gentleman from
Mississippi wish to be heard on the point of order?
---------------------------------------------------------------------------
20. John W. McCormack (Mass.).
---------------------------------------------------------------------------
Mr. [Clarence] Cannon of Missouri: Mr. Chairman, if the Chair
will permit.
[[Page 5666]]
The Chairman: The Chair recognizes the gentleman from Missouri.
Mr. Cannon of Missouri: Mr. Chairman, this amendment is not
legislation. It is language merely descriptive, and such amendments
have been repeatedly held not to be legislation.
I recall two decisions on this point. They were made by one of
the greatest parliamentarians who has served in the House, James R.
Mann, of Illinois.
The first was made in 1905 when an amendment was offered, I
think, to the Naval bill.
The language provided that ships or armament should be of
``native manufacture.'' . . . Mr. James R. Mann, of Illinois, held
that those words were merely descriptive and that it was not
legislation.
Mr. [Bertrand H.] Snell [of New York]: Mr. Chairman, will the
gentleman yield?
Mr. Cannon of Missouri: I yield with pleasure to the
distinguished leader on the other side of the House.
Mr. Snell: If the words are merely descriptive, why will they
have the effect of changing the name of the dam?
Mr. Cannon of Missouri: They do not change the name of the dam.
It is not proposed to change the name of the dam.
Mr. Snell: But is not that the intention? I call it
legislation. Is not that the intention of the amendment?
Mr. Cannon of Missouri: The gentleman from New York, being one
of the ablest parliamentarians in the House, knows that the
Chairman of the Committee of the Whole may not speculate as to the
intention of an amendment. He must predicate his decision on the
amendment before him in the language in which it is written. He
cannot go back of what is on the face of it to surmise what is the
purpose of a Member in offering an amendment. This amendment merely
further describes the Pickwick Landing Dam; it does not propose a
change in the name; it merely adds the descriptive language ``known
as the Rankin Dam.''. . .
The Chairman: The Chair is prepared to rule. The Chair entirely
agrees with the gentleman from Missouri [Mr. Cannon], with
reference to the use of descriptive words. Therefore, the question
in the mind of the present occupant of the chair is whether the
amendment is descriptive or whether it constitutes legislation.
Without regard to whether or not it brings about a change in the
name of the dam from ``Pickwick Landing Dam'' to ``Rankin Dam'', it
is the opinion of the Chair, with profound respect for the opinion
of the gentleman from Missouri, one of the outstanding
parliamentarians of all time, that the amendment does not
constitute descriptive language; that it constitutes legislation.
It is an addition to the language used in this bill. The Chair
would rule the same whether or not the legislation referred to by
the gentleman from South Carolina [Mr. McSwain] contained the words
``Pickwick Landing Dam'' or not, because that name is included in
the bill now before the House.
Profoundly respecting the views of the gentleman from Missouri,
and with considerable hesitation in disagreeing with him, it is the
opinion of the Chair that the point of order is well taken, and the
Chair therefore sustains the point of order.
[[Page 5667]]
Appropriation Carrying Waiver of Limitations Contained Elsewhere in
Same Bill
Sec. 25.2 Where specific appropriations in an appropriation bill were
expressly subjected to certain limitations, it was held that
subsequent language in the bill might appropriate for other objects
``without regard to the amounts of the limitations'' so imposed.
On May 17, 1937,(1) the Committee of the Whole was
considering H.R. 6958, an Interior Department appropriation bill. The
Clerk read as follows, and proceedings ensued as indicated below:
---------------------------------------------------------------------------
1. 81 Cong. Rec. 4685, 4686, 75th Cong. 1st Sess. See 83 Cong. Rec.
2707, 75th Cong. 3d Sess., Mar. 2, 1938, for a similar ruling.
---------------------------------------------------------------------------
Boulder Canyon project: For the continuation of construction of
the Boulder Canyon Dam and incidental works in the main stream of
the Colorado River at Black Canyon, to create a storage reservoir,
and of a complete plant and incidental structures suitable for the
fullest economic development of electrical energy from the water
discharged from such reservoir $2,550,000, to be immediately
available and there shall also be available from power and other
revenues not to exceed $500,000 for operation and maintenance of
the Boulder Canyon Dam, power plant, and other facilities; which
amounts of $2,550,000 and $500,000 shall be available for personal
services in the District of Columbia . . . and for all other
objects of expenditure that are specified for projects hereinbefore
included in this act, under the caption ``Bureau of Reclamation,
Administrative provisions and limitations'', without regard to the
amounts of the limitations therein set forth.
Mr. [Richard B.] Wigglesworth [of Massachusetts]: Mr. Chairman,
I reserve a point of order for the purpose of asking the chairman
of the subcommittee the effect of the language in lines 19 and 20
of the paragraph under consideration, ``without regard to the
amounts of the limitations therein set forth.'' . . .
Mr. [James G.] Scrugham [of Nevada]: Mr. Chairman, the
paragraph applies to limitations on appropriations, and I hold it
to be clearly in order.
The Chairman: (2) The Chair is prepared to rule.
---------------------------------------------------------------------------
2. Jere Cooper (Tenn.).
---------------------------------------------------------------------------
The gentleman from Massachusetts makes the point of order
against the language appearing in lines 19 and 20.
There is no point made here that the provisions referred to are
not covered by authorization of law. It is apparent from examining
this provision, and referring back to the provisions contained on
page 68, that the purpose here is to remove certain limitations
imposed by the language on page 68 under the heading
``Administrative provisions and limitations.'' Therefore the Chair
is of the opinion that this language is not subject to a point of
order and overrules the point of order.
[[Page 5668]]
Army Publications; Exception From Valid Limitation
Sec. 25.3 A provision in a general appropriation bill providing that no
part of the appropriation for pay of the Army shall be available
for pay of any officer or enlisted man who is engaged with any
publication issued by or for any branch of the Army in which such
officers or enlisted men have membership and which carries paid
advertising of firms doing business with the War Department and
also providing that `nothing herein . . . shall be construed to
prohibit officers from writing . . . articles in accordance with
regulations issued by the Secretary of War'' was held in order as a
valid exception from a limitation (excepting certain activity
undertaken in accordance with regulations issued pursuant to
existing law).
On Mar. 28, 1938,(3) the Committee of the Whole was
considering H.R. 9995, a military appropriation bill. During
consideration of the bill, a point of order was overruled as indicated
below:
---------------------------------------------------------------------------
3. 83 Cong. Rec. 4243, 4244, 75th Cong. 3d Sess.
---------------------------------------------------------------------------
No appropriation for the pay of the Army shall be available for
the pay of any officer or enlisted man on the active list of the
Army who is engaged in any manner with any publication which is or
may be issued by or for any branch or organization of the Army or
military association in which officers or enlisted men have
membership and which carries paid advertising of firms doing
business with the War Department: Provided, however, That nothing
herein contained shall be construed to prohibit officers from
writing or disseminating articles in accordance with regulations
issued by the Secretary of War.
Mr. [Charles I.] Faddis [of Pennsylvania]: Mr. Chairman, I make
a point of order against the language contained in lines 12 to 22,
inclusive, on page 13, that it is legislation on an appropriation
bill.
The Chairman: (4) Does the gentleman from
Pennsylvania desire to be heard on the point of order?
---------------------------------------------------------------------------
4. Luther A. Johnson (Tex.).
---------------------------------------------------------------------------
Mr. Faddis: I do not believe that is necessary, Mr. Chairman.
This does not decrease any appropriation and does not provide for a
decrease in personnel or anything of that kind, and is purely
legislation on an appropriation bill.
The Chairman: Does the gentleman from Pennsylvania (Mr. Snyder)
desire to be heard on the point of order?
Mr. [John B.] Snyder of Pennsylvania: Mr. Chairman, I believe
this is just a straight-out limitation, and I do not believe it
comes within the provision referred to.
The Chairman: What about the last proviso in the last three or
four lines of the paragraph:
[[Page 5669]]
That nothing herein contained shall be construed to
prohibit officers from writing or disseminating articles in
accordance with regulations issued by the Secretary of War?
Mr. Snyder of Pennsylvania: I may say to the Chair that that
does not give any more authority than now exists. It just accepts
the authority now existing.
The Chairman: Then, under existing law, why is it necessary to
have that provision?
Mr. [John] Taber [of New York]: Mr. Chairman, it would seem to
me that that proviso is clearly a part of the limitation above,
because it simply excepts an officer publishing something already
permitted by regulations of the Secretary of War. The language is
clearly a limitation on an appropriation bill. There is no attempt
at legislation, no additional duties required of any officer, or
anything of that kind. . . .
The Chairman: The Chair is of opinion that the explanation made
by the gentleman from New York (Mr. Taber) is correct; that the
last proviso is simply an exception from the limitation, and the
Chair, therefore, overrules the point of order and holds that the
paragraph is a proper limitation.
Defining Expenses as Non-administrative
Sec. 25.4 Where an appropriation bill placed a limit on administrative
expenses, a provision defining certain expenses as
``nonadministrative,'' for purposes of making the computation under
the limitation was held to be legislative and was ruled out on a
point of order.
On Jan. 17, 1940,(5) during consideration in the
Committee of the Whole of the independent offices appropriation bill
(H.R. 7922), a point of order was raised against the following
provision:
---------------------------------------------------------------------------
5. 86 Cong. Rec. 439, 76th Cong. 3d Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
Electric Home and Farm Authority, salaries and
administrative expenses: Not to exceed $600,000 of the funds of
the Electric Home and Farm Authority, established as an agency
of the Government by Executive Order No. 7139 of August 12,
1935, and continued as such agency until June 30, 1941 by the
act of March 4, 1939 (Public Act No. 2, 76th Cong.), shall be
available during the fiscal year 1941 for administrative
expenses of the Authority, including personal services in the
District of Columbia and elsewhere; travel expenses, in
accordance with the Standardized Government Travel Regulations
and the act of June 3, 1926, as amended (5 U.S.C. 821-833); not
exceeding $3,000 for expenses incurred in packing, crating, and
transporting household effects (not exceeding 5,000 pounds in
any one case) of personnel when transferred in the interest of
the service from one official station to another for permanent
duty when specifically authorized in the order directing the
transfer; printing and binding; lawbooks and books of
reference; not to exceed $200 for periodicals, newspapers, and
maps; procurement of supplies, equipment, and services;
typewriters, adding machines, and other labor-saving devices,
including
[[Page 5670]]
their repair and exchange; rent in the District of Columbia and
elsewhere; and all other administrative expenses: Provided,
That all necessary expenses (including legal and special
services performed on a contract or fee basis, but not
including other personal services) in connection with the
acquisition, care, repair, and disposition of any security or
collateral now or hereafter held or acquired by the Authority
shall be considered as non-administrative expenses for the
purposes hereof.
Mr. [Francis H.] Case of South Dakota: Mr. Chairman, I make the
point of order against the paragraph that it contains legislation
in the proviso beginning on page 21, line 3, and reading as
follows:
Provided, That all necessary expenses (including legal and
special services performed on a contract or fee basis, but not
including other personal services) in connection with the
acquisition, care, repair, and disposition of any security or
collateral now or hereafter held or acquired by the Authority
shall be considered as nonadministrative expenses for the
purposes hereof.
I make the point of order merely against the proviso, Mr.
Chairman, not against the paragraph.
The Chairman: (6) Does the gentleman from Virginia
desire to be heard on the point of order?
---------------------------------------------------------------------------
6. Lindsay C. Warren (N.C.).
---------------------------------------------------------------------------
Mr. [Clifton A.] Woodrum of Virginia: I do not, Mr. Chairman.
The Chairman: As the language pointed out by the gentleman from
South Dakota [Mr. Case] attempts to construe existing law, the
Chair believes the point of order is well taken. The point of order
is, therefore, sustained, and the proviso is stricken out.
Exceptions to Limitations
Sec. 25.5 In making an appropriation it is in order to except from the
operation of a limitation thereon propositions authorized by law by
language not changing the application of that law.
On Apr. 17, 1943,(7) the Committee of the Whole was
considering H.R. 2481, an Agriculture Department appropriation bill.
The Clerk read as follows:
---------------------------------------------------------------------------
7. 89 Cong. Rec. 3526, 3527, 78th Cong. 1st Sess.
---------------------------------------------------------------------------
Amendment offered by Mr. [Edward H.] Rees of Kansas: On page
63, line 2, after the colon, insert as follows: ``Provided further,
That no payment or payments hereunder to any one person or
corporation shall be in excess of the total sum of $500: And
provided further, That this limitation shall not be construed to
deprive any share renter of payments not exceeding the amount to
which he would otherwise be entitled.''. . .
Mr. [Clifford R.] Hope [of Kansas]: Mr. Chairman, I offer an
amendment to the amendment
The Clerk read as follows:
Amendment offered by Mr. Hope to the amendment offered by
Mr. Rees of Kansas: Add the following:
``And provided further, That in applying this limitation
there shall be excluded amounts representing landlord's share
of a payment made with respect to land operated under a tenancy
or sharecropper relationship if the division of the payment
between
[[Page 5671]]
the landlord and tenant or sharecropper is determined by the
local committee to be in accord with fair and customary
standards of rent and sharecropping prevailing in the locality.
In the case of payments to any person on account of performance
on farms in different States, Territories, or possessions, the
limitation shall be applied to the total of the payments for
each State, Territory, or possession for a year and not to the
total of all payments.''. . .
Mr. [Malcolm C.] Tarver [of Georgia]: As I understood the
reading of the amendment, the amendment clearly contains
legislation. It changes the terms of existing law with reference to
the method of computation of payments of the kind provided for in
the paragraph. It does not on its face indicate any saving of funds
carried in this paragraph of the bill so as to come within the
provisions of the Holman rule. It places upon administrative
authorities additional duties to perform to those duties which are
now required by law, and it seems to me that it is for these
reasons clearly legislative in character. . . .
Mr. Hope: I submit, Mr. Chairman, that the amendment is purely
a limitation. It is a modification of the limitations contained in
the amendment offered by the gentleman from Kansas [Mr. Rees]. It
provides simply that under certain circumstances the Rees amendment
shall not be operative. It is not legislation, it is simply a
modification of the Rees amendment.
The Chairman: (8) The Chair will ask the gentleman
from Kansas and also the gentleman from Georgia whether or not it
is true that under the Soil Conservation and Allotment Act or under
regulations provided by the law there is a method for ascertaining
the relationship between the shares accruing to landlords and
tenants and the amounts that are to be paid to landlords and
tenants? In other words, the question is whether or not any
additional provision or legislation to those now existing by law or
by rules and regulations are embraced in the gentleman's
limitation?
---------------------------------------------------------------------------
8. William M. Whittington (Miss.).
---------------------------------------------------------------------------
Mr. Hope: There is a provision in the Triple A Act--I cannot
quote it word for word--which does relate to the relationship
between landlord and tenant and provides that the relationship
shall not be changed where it once exists.
The Chairman: Does the gentleman from Georgia desire to make
any response to the inquiry?
Mr. Tarver: I have no further statement to make, Mr. Chairman.
The Chairman: The Chair is prepared to rule. . . .
A point of order is made to the amendment on the ground that it
is legislation on an appropriation bill. It is replied that under
the Soil Conservation Act and under the rules authorized by that
act, as stated by the gentleman from Kansas [Mr. Hope] and in
response to the Chair's inquiry, that the rules and regulations
provide now for determination by local committees substantially as
provided in this limitation. The Chair understands that in the Soil
Conservation and Domestic Allotment Act there is a limitation with
respect to the total payments in the several States or territories.
In view of the statements made by the gentleman from Kansas [Mr.
Hope]
[[Page 5672]]
that are not controverted by any statute or regulation brought to
the attention of the Chair, and in view of the construction placed
upon the act and the rules and regulations under the act, the Chair
is constrained to hold that the pending amendment is a further
limitation upon the limitation pending as proposed by the gentleman
from Kansas [Mr. Rees].
As the Chair interprets the amendment of the gentleman from
Kansas [Mr. Hope] it does not change the terms of existing law with
respect to the method of ascertaining payments or the duties of
local committees. It does not place upon the administrative
authorities any additional duties to perform. No duties will be
performed except those now required by law. The local committees
under rules and regulations now pass upon the standards of rent and
sharecropping. Under the rules and regulations as authorized by the
Soil Conservation Allotment Act these committees would pass upon
the leasing and sharecropping under the Rees amendment. The said
committees would do no more and no less under the Hope amendment.
Under existing law and under the Rees amendment the landlord's
share would be determined and the tenant's share would be
determined by the local committees. Under existing law and under
the Hope amendment the local committees would perform the same
functions that they would perform under the Rees amendment. No
additional legislation is contained in the amendment. No additional
duties are prescribed. The Rees amendment and the Hope amendment
neither contemplate any additional duties nor any additional
obligations. They require the performance of no additional duties.
The Rees amendment is a limitation and the Hope amendment is a
further limitation, and as such is a limitation of the same kind as
the Rees amendment, with no additional functions to be performed by
the local committee.
The Chair overrules the point of order.
Education; Language Defining the Scope of Busing Limitation
Sec. 25.6 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 funds.
On Feb. 19, 1970,(9) the Committee of the Whole was
consid
[[Page 5673]]
ering H.R. 15931, a Departments of Labor and Health, Education, and
Welfare appropriation bill. The following proceedings took place:
---------------------------------------------------------------------------
9. 116 Cong. Rec. 4029, 91st Cong. 2d Sess. The provisions which the
proposed amendments sought to modify stated:
``Sec. 408. No part of the funds contained in this Act may
be used to force any school district to take any actions
involving the busing of students, the abolishment of any school
or the assignment of any student attending any elementary or
secondary school to 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 any school district to take any actions
involving the busing of students, the abolishment of any school
or the assignment of students to a particular school as a
condition precedent to obtaining Federal funds otherwise
available to any State, school district or school.''
---------------------------------------------------------------------------
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.''. . .
Mr. Gerald R. Ford [of Michigan]: Mr. Chairman, I reserve a
point of order against the amendments as legislation on an
appropriation bill. . . .
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. . . .
The Chairman: (10) The Chair is prepared to rule.
---------------------------------------------------------------------------
10. 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.
Definition of ``Person'' in Agriculture Appropriation Bill
Sec. 25.7 To an agricultural appropriation bill, an amendment
curtailing the use of funds therein for price support payments to
any person in excess of $30,000 per year and providing that ``for
the purpose of this [amendment] the term `person' shall mean an
individual, partnership, firm, joint stock company,'' or the like,
was ruled out as legislation.
[[Page 5674]]
On May 26, 1965,(11) during consideration in the
Committee of the Whole of the Agriculture Department appropriation bill
(H.R. 8370), a point of order was raised against the following
amendment:
---------------------------------------------------------------------------
11. 111 Cong. Rec. 11655, 11656, 89th Cong. 1st Sess.
---------------------------------------------------------------------------
Mr. [Robert H.] Michel [of Illinois]: Mr. Chairman, I offer an
amendment.
The Clerk read as follows:
Amendment offered by Mr. Michel: On page 33, line 24, after
the word ``hereof'', strike the period, insert a colon and the
following: ``Provided further: (a) That none of the funds
herein appropriated may be used to formulate or carry out price
support programs during the period ending June 30, 1966, under
which a total amount of price support payments in excess of
$30,000 would be made to any person . . . (b) That for the
purposes of this proviso the term `person' shall mean an
individual, partnership, firm, joint stock company,
corporation, association, trust, estate or other legal entity,
or a State, political subdivision of a State, or any agency
thereof.''. . .
Mr. [Jamie L.] Whitten [of Mississippi]: Mr. Chairman, I should
like to read, if I may, the first part of the amendment, as I make
the point of order against it:
Provided, That none of the funds herein appropriated may be
used to formulate or carry out price support programs during
the period ending June 30, 1966, under which a total amount of
price support payments in excess of $30,000 would be made to
any person.
I respectfully submit that this not only would require some new
duties but also would require the opening up of individual
accounts. This makes it quite clearly subject to a point of order.
I might point out that subsection (b), where the definitions
are given, would require a determination and also would call for
special duties.
The Chairman: (12) Does the Chair correctly
understand that the gentleman from Mississippi has stated his point
of order against the pending amendment?
---------------------------------------------------------------------------
12. Eugene J. Keogh (N.Y.).
---------------------------------------------------------------------------
Mr. Whitten: Yes.
Mr. Michel: Mr. Chairman, I should like to be heard on the
point of order. I submit, Mr. Chairman, it falls strictly within
the Holman rule on retrenching, as a limitation. The Department of
Agriculture has all kinds of statisticians. We appropriate money
for them. They have the wherewithal to make any kind of
determination we see fit to legislate. In this sense, it is a
retrenchment, in my opinion.
The Chairman: . . . The Chair has read the amendment offered by
the gentleman from Illinois. The Chair is of the opinion that even
though any limitation imposed upon an executive agency may add to
the burdens of that executive agency, a limitation of an
appropriation is in good order. The Chair, therefore, would say to
the gentleman from Illinois that in the opinion of this occupant of
the chair, he has offered an amendment which is in form a
limitation. But in addition thereto, he has added language which
defines a person, and in the opinion of the Chair that language is
legislation on an appropriation bill and is therefore out of order.
The Chair sustains the point of order.
[[Page 5675]]
Parliamentarian's Note: For a provision held in order as a
limitation, see the ruling on Mar. 4, 1954, discussed in Sec. 74.3,
infra. In that instance the Chair ruled that, where an amendment to an
appropriation bill provided that no part of any appropriation in the
bill be used for compensation of any officer or employee of a
designated bureau who for the purposes of the Hatch Act, ``shall not be
included within the construction of the term `officer' or `employee',''
the language was in order as a limitation. The determinations of
employment status were, it should be noted, already required by law.
Public Buildings Administration--Teletype Service
Sec. 25.8 Language broadening beyond existing law the definition of
services to be funded by an appropriation was held to be
legislation.
On Dec. 6, 1944,(13) during consideration in the
Committee of the Whole of a supplemental appropriation bill (H.R.
5587), a point of order was raised against the following provision:
---------------------------------------------------------------------------
13. 90 Cong. Rec. 8940, 78th Cong. 2d Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
Public Buildings Administration
The words ``other services'' appearing in the proviso
clause under the head ``Salaries and expenses, public buildings
and grounds in the District of Columbia and adjacent area,''
fiscal year 1945, shall be deemed to include teletype service
and telephone switchboards or equivalent telephone-switching
equipment serving one or more governmental activities in
buildings operated by the Public Buildings Administration where
it is found that such service is economical and in the interest
of the Government.
Mr. [Francis H.] Case [of South Dakota]: Mr. Chairman, I make a
point of order against the words ``Teletype service and'' in the
paragraph just read, on the ground that they constitute legislation
and would make funds available for projects not authorized by law.
I may say in this connection, Mr. Chairman, that I think there
is no objection to the installation of teletype services in certain
agencies of the Government, but as provided in this paragraph and
in the paragraph immediately following there would be established a
broad authorization to install teletype services wherever they
could be put in any building administered by the Public Buildings
Administration. It seems to me entirely too broad. This question
has been discussed before the Independent Offices Committee and the
belief there was that teletype installations should be permitted
only in specific instances where a definite need is shown.
The Chairman: (14) The Chair will hear the gentleman
from Missouri [Mr. Cannon] on the point of order.
---------------------------------------------------------------------------
14. Herbert C. Bonner (N.C.).
---------------------------------------------------------------------------
Mr. [Clarence] Cannon of Missouri: Mr. Chairman, there is no
ground upon which the point of order
[[Page 5676]]
against this provision can be sustained. This is a regularly
established and recognized means of communication which any
department is authorized to use in furtherance of the
administration of its duties. There is no law under which it is
denied, no provision of law under which it can be excluded. It is
merely one of the regularly included provisions for carrying out
the law and I see no grounds at all on which the point of order can
be sustained.
Mr. Case: Mr. Chairman, I call the Chair's attention to the
following colloquy in the hearings on this item, page 125:
The Chairman: Why should it be necessary to make this
modification?
Mr. Cameron: That is a change in language for the P.B.A. in
order to facilitate the handling of the reimbursable services
transferred from O.E.M. Their communication and leasing
services were transferred to the Public Buildings
Administration as of October 1, 1944.
The Chairman: You could not handle it under the present
limitations?
Mr. Cameron: That is right
On the record of the hearings, then, this bill at the point
cited is a change of law. It changes existing legislation by
providing that the words `` `Other services' shall be deemed to
include teletype services.'' On the record of the hearings
themselves, as brought out by the chairman, an existing limitation
is proposed to be changed. Consequently, it does change existing
law.
Mr. Cannon of Missouri: That, of course, is true. Of course,
you have to put it in the bill; but there is no law against
including it in the bill, the committee having reported it. It does
not change existing law.
The Chairman: On the basis of the statement made by the
gentleman from Missouri, the Chair must sustain the point of order.
Grant of Authority Based on Determination of National Defense Needs
Sec. 25.9 To an appropriation bill, an amendment construing language
therein to grant authority to withdraw or withhold funds for
specific military construction projects upon a determination that
elimination of such projects would not adversely affect national
defense, was held to be legislation and therefore not in order.
On July 12, 1956,(15) during consideration in the
Committee of the Whole of a supplemental appropriation bill (H.R
12138), a point of order was raised against the following amendment:
---------------------------------------------------------------------------
15. 102 Cong. Rec. 12551, 12552, 84th Cong. 2d Sess.
---------------------------------------------------------------------------
Amendment offered by Mr. (John) Taber (of New York): On page
10, line 7, strike out the period, insert a semicolon ``Provided
further, That nothing herein shall be so construed as to prohibit
withholding or withdrawing funds for specific projects or
installations when such projects or installations can be eliminated
or deferred without adverse effect on the national interest.''
[[Page 5677]]
Mr. (Harry R.) Sheppard (of California): Mr. Chairman, I
reserve a point of order on the amendment.
Mr. Taber: Mr. Chairman, I have offered this amendment to
follow the language and the word ``installation'' on line 7. I have
offered it because, although it is not as good as what I had in
mind myself, it would permit the armed services to stop the use of
funds upon projects that had gone sour or had been dropped because
they were not needed any longer.
The way the language in section 309 reads they would not have
the power to do that. No one else would have the power to do it,
and it would be a menace to our whole military situation.
I am in hopes that the gentleman on the other side of the aisle
will agree to accept this amendment. It is in the nature of a
compromise. Frankly, it can be drawn so that it will not in the
slightest degree be subject to a point of order, but I thought
perhaps those who misconstrue the language that they have brought
in here might be willing to accept this. I do not think it would be
safe for us to pass this kind of a provision. For that reason. I
have offered this amendment and I hope it will be adopted.
Mr. Sheppard: Mr. Chairman, due to the fact that as far as I
know the only complaint comes from Assistant Secretary McNeil and
not from either of the three services, I insist upon my point of
order.
Mr. Taber: Mr. Chairman, I do not think this is subject to a
point of order. It does not call for additional duties. It is
simply a limitation upon a restriction that is set up in the
language. It is clearly germane to the language.
The Chairman: (16) Does the gentleman from
California desire to be heard on the point of order?
---------------------------------------------------------------------------
16. Paul J. Kilday (Tex.).
---------------------------------------------------------------------------
Mr. Sheppard: I merely wish to call the Chair's attention to
the fact that it imposes additional duties and that it also is
legislation on an appropriation bill.
The Chairman: The gentleman from New York has offered an
amendment to which the gentleman from California has interposed the
point of order that the amendment imposes additional duties and is
legislation on an appropriation bill.
The Chair is prepared to rule
In the opinion of the Chair the amendment proposed by the
gentleman from New York does impose an additional burden upon the
person administering the funds, and, therefore, constitutes
legislation on an appropriation bill.
The point of order is sustained.
Construing Language in Exception to Limitation
Sec. 25.10 Where a limitation in an amendment to an appropriation bill
prohibited certain payments to persons in ``excess of . . . $500,''
a further provision stating that such limitation would not be
``construed to deprive any share renter of payments'' to which he
might be otherwise entitled was held to be in order as an exception
to a limitation.
[[Page 5678]]
On Mar. 24, 1944,(17) during consideration of the
Agriculture Department appropriation bill for 1945 (H.R. 4443), the
following proceedings occurred:
---------------------------------------------------------------------------
17. 90 Cong. Rec. 3095, 78th Cong. 2d Sess. For discussion of
exceptions from limitations generally, see Sec. 66, infra.
---------------------------------------------------------------------------
Mr. [Edward H.] Rees of Kansas: Mr. Chairman, I offer an
amendment.
The Clerk read as follows:
Amendment offered by Mr. Rees of Kansas: On page 62, line
5, after the colon following the word ``inclusive'', insert the
following: ``Provided further, That no payment or payments
hereunder to any one person or corporation shall be in excess
of the total sum of $500: And provided further, That this
limitation shall not be construed to deprive any share renter
of payments not exceeding the amounts to which he would
otherwise be entitled.''
Mr. [Malcolm C.] Tarver (of Georgia): Mr. Chairman, I make a
point of order against the amendment because of the inclusion of
the second proviso therein, which, in my judgment, constitutes
legislation upon an appropriation bill. It is in effect a
construction of the preceding proviso, and which legislatively
provides that the preceding proviso in the case of tenants shall
not be taken at its face value but that a different rule shall be
applicable to them. Because that provision is included, I think the
entire amendment is subject to a point of order because of its
being legislative in character. . . .
[I]t is my opinion, having heard the amendment read, although I
have not had the opportunity to examine it carefully, that the
second proviso does not constitute merely an exception to the
limitation made in the first proviso, but it is legislative in
character and constitutes a legislative construction of the
language contained in the first proviso and is, therefore, clearly
in itself legislation. I know no reason why the gentleman from
Kansas should not offer or be permitted to offer the first proviso.
But I think the second proviso which reads, ``And provided further,
That this limitation shall not be construed to deprive any share
renter of payments not exceeding the amount to which he would
otherwise be entitled,'' is clearly a legislative construction of
the preceding proviso and, therefore, in itself constitutes
legislation.
The Chairman: (18) Does the gentleman from Kansas
desire to be heard further?
---------------------------------------------------------------------------
18. William M. Whittington (Miss.).
---------------------------------------------------------------------------
Mr. Rees of Kansas: Just one point. Let me observe that the so-
called limitation is a limitation only on the first proviso of the
amendment and does not constitute legislation on the bill.
The Chairman: The Chair is ready to rule. The Chair is of the
opinion that the second proviso constitutes an exception to the
provisions of the amendment as contained in the first proviso. The
Chair overrules the point of order.
Mr. Rees subsequently made the following remarks concerning the
amendment:
Mr. Rees of Kansas: Mr. Chairman, this amendment is identical
with one I submitted and was adopted by the House last year. It
went to another
[[Page 5679]]
body and was eliminated by the members of the conference committee.
The amendment simply limits the payment under this program to any
one person, firm, or corporation to a maximum of $500. Share
renters also participate up to $500.
Mr. Chairman, there is a considerable misunderstanding with
regard to what is known as the soil-conservation program in the
Department of Agriculture. The Soil Conservation Service has its
own organization and has been in effect for many years. We
appropriate approximately $30,000,000 per year for it. That agency
employs hundreds of soil experts, and other trained men to render
assistance with respect to soil conditions, crops, conservation,
crop rotation, and any and all kinds of advice and information is
furnished free to the farmers. This agency, although not so much
publicized, has done a great amount of real constructive work.
This section of the legislation deals with payments that are
allowed by the Government for following certain land programs and
practices laid out by the Agricultural Adjustment Agency. These
payments are, as the legislation suggests, in compliance with the
Agricultural Adjustment Act of 1936 as amended in 1938. Now, Mr.
Chairman, all I am asking is that since this money is paid by
taxpayers, from the Federal Treasury, that payments be limited to
$500.
Parliamentarian's Note: Although the above ruling indicates that it
is in order to except from the operation of a specific limitation on
expenditures, certain of those expenditures which are authorized by
law, by prohibiting a construction of the limitation in a way which
would prevent compliance with that law, this principle should be
applied in the light of a further ruling, on Aug. 27,
1980.(19) In the 1980 ruling, it was held that an amendment
to a general appropriation bill which does not limit or restrict the
use or expenditure of funds carried in the bill, but which provides
directions on the way in which the bill must be interpreted or
construed, is legislation.
---------------------------------------------------------------------------
19. 126 Cong. Rec. 23535, 96th Cong. 2d Sess.
---------------------------------------------------------------------------
Defining Terms in Limitation; Reference to President's Budget
Sec. 25.11 An amendment in the form of a limitation on funds in the
bill but measured against a provision in the President's budget
request, and also containing definitions of the terms of the
limitation, was held to be legislative in effect
On July 26, 1951,(20) during consideration in the
Committee of the Whole of a general appropriation bill (H.R. 4740), a
point of order
[[Page 5680]]
was raised against the following amendment:
---------------------------------------------------------------------------
20. 97 Cong. Rec. 8981, 8982, 82d Cong. 1st Sess.
---------------------------------------------------------------------------
Amendment offered by Mr. [Lawrence H.] Smith of Wisconsin: Page
58, line 14, insert a colon at the end of the sentence and add the
following: ``Provided further, That any funds provided by this act
shall not be available for the compensation of persons performing
information functions or related supporting functions in excess of
75 percent (on an annual basis) of the amount budgeted therefor in
the President's budget for 1952. For the purposes of this section
the term `information function' means functions usually performed
by a person designated as an information specialist, information
and editorial specialist, publications and information coordinator,
press relations officer or counsel, or publicity expert, or
designated by any similar title; and the term `related supporting
functions' means functions performed by persons who assist persons
performing information functions in the drafting, preparing,
editing, typing, duplicating, or disseminating of public
information, publications or releases, radio or television scripts,
magazine articles, and similar materials.''
Mr. [John J.] Rooney [of New York]: Mr. Chairman, I make a
point of order against the amendment offered by the gentleman from
Wisconsin (Mr. Smith) on the ground it is legislation on an
appropriation bill, legislation defining terms and functions;
therefore, contrary to the rules of the House. . . .
Mr. Smith of Wisconsin: Mr. Chairman, it is my view that this
amendment is in order and that it is germane to the bill now under
consideration. It provides merely for a limitation on this
appropriation bill of 25 percent in the amount that can be used. .
. .
The Chairman: (1) the Chair is prepared to rule. . .
.
---------------------------------------------------------------------------
1. Jere Cooper (Tenn.).
---------------------------------------------------------------------------
While the gentleman may intend the amendment as a limitation,
it certainly contains language that goes further than a mere
limitation on an appropriation bill. The provision in the amendment
seeking to provide a definition, and other language contained in
the amendment, is beyond the scope of a limitation on an
appropriation bill. Therefore the Chair sustains the point of
order.
Defining Terms in Price Support Program Limitation
Sec. 25.12 To a general appropriation bill, an amendment limiting the
use of funds for payments to farmers, but at the same time
providing definitions, new authorizations, and imposing additional
duties on the Secretary of Agriculture, was ruled out as
legislation
On June 6, 1961,(2) during consideration in the
Committee of the Whole of the Agriculture Department appropriation
bill (H.R. 7444), a point of order was raised against the following
amendment:
---------------------------------------------------------------------------
2. 107 Cong. Rec. 9626, 9627, 87th Cong. 1st Sess.
---------------------------------------------------------------------------
Mr. [William H.] Avery [of Kansas]: Mr. Chairman, I offer an
amendment
[[Page 5681]]
The Clerk read as follows:
Amendment offered by Mr. Avery: On page 33, line 22, strike
out the period, and add ``: Provided further, (1) That no part
of this authorization shall be used to formulate or carry out a
price support program for 1962 under which a total amount of
price support in excess of $50,000 would be extended through
loans, purchases, or purchase agreements made or made available
by Commodity Credit Corporation to any person on the 1962
production of all agricultural commodities, (2) That the term
``person'' shall mean an individual, partnership, firm, joint-
stock company, corporation, association, trust, estate, or
other legal entity, or a State, political subdivision of a
State, or any agency thereof, (3) That in the case of any loan
to, or purchase from, a cooperative marketing organization,
such limitation shall not apply to the amount of price support
received by the cooperative marketing organization, but the
amount of price support made available to any person through
such cooperative marketing organization shall be included in
determining the amount of price support received by such person
for purposes of such limitation, and (4) That the Secretary of
Agriculture shall issue regulations prescribing such rules as
he determines necessary to prevent the evasion of such
limitation''. . . .
Mr. [Jamie L.] Whitten [of Mississippi]: Mr. Chairman, I make
the point of order that the amendment is legislation on an
appropriation bill. It provides for new duties on the part of the
Secretary of Agriculture, in addition to other legislative
provisions.
The Chairman: (3) Does the gentleman from Kansas
desire to be heard on the point of order?
---------------------------------------------------------------------------
3. Paul J. Kilday (Tex.).
---------------------------------------------------------------------------
Mr. Avery: Yes, Mr. Chairman.
As I recall it, about 2 years ago right now, in 1959, I think
the distinguished gentleman from Texas was in the chair that day;
if not the gentleman from Texas presently in the chair, it was one
of his Texas colleagues. When I submitted the original amendment to
this same section of the appropriation bill, the gentleman from
Mississippi raised a point of order against the amendment. After a
considerable amount of deliberation, shall I say, the Chairman
upheld the amendment as being a further limitation on the
administrative costs of the Commodity Credit Corporation.
Therefore, the point of order was not sustained.
The Chairman: The Chair is prepared to rule
The gentleman from Kansas offers an amendment which has been
reported. The Chair would observe it was probably this Chairman who
occupied the chair on the occasion the gentleman from Kansas
referred to. It was apparently on the 18th of May 1959.
The Chair did not understand the gentleman from Kansas to state
that the amendment now pending is in identical language as that
which was offered in 1959. . . .
The Chair has the language which was before the Chair in 1959,
and will read it:
Amendment offered by Mr. Avery: Page 27, line 19, strike
out the period, add a colon and insert: ``Further, no funds
appropriated in this section shall be used to process Commodity
Credit loans which are in excess of $50,000.''
The Chair points out that that language was directly, solely
and exclusively directed at the purpose for
[[Page 5682]]
which funds being appropriated at that time could be used.
The Chair has examined the pending amendment, and while the
first sentence of the pending amendment would indicate that it is
in the nature of a limitation, it does refer to authorizations.
This is the crux of the ruling of the Chair.
The Chair points out that the language of the amendment
contains definitions, authorizations, and imposes duties upon an
officer of the executive department. It is therefore clearly
legislation on an appropriation bill. It is not identical or, in
the opinion of the Chair, similar to the amendment offered in 1959.
The Chair is constrained to sustain the point of order.
Limitation Containing Statement of Purpose
Sec. 25.13 A paragraph in a general appropriation bill limiting the use
of funds therein to pay certain employees above a certain rate of
pay, but also containing a proviso ``to assure'' that the
limitation did not reduce compensation in certain circumstances,
was ruled out as legislation since containing a legislative
statement of purpose.
On Aug. 8, 1978,(4) the Committee of the Whole had under
consideration the Defense Department appropriation bill (H.R. 13635),
when a point of order was sustained against a provision in the bill as
indicated below:
---------------------------------------------------------------------------
4. 124 Cong. Rec. 24969, 24970, 95th Cong. 2d Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
Sec. 860. None of the funds appropriated by this Act shall
be available for the pay of a prevailing rate employee, as
defined in paragraph (A) of section 5342(a)(2) of title 5,
United States Code, at a rate that is greater than 104 percent
of the rate of pay payable to an employee in the second step of
the grade of the regular, supervisory, or special wage
schedule, in which the prevailing rate employee is serving:
Provided, That to assure that this limitation does not (1)
reduce the rate of pay of a prevailing rate employee,
continuously employed after September 30, 1978, as set forth
hereafter, below the rate of pay for that employee in effect on
September 30, 1978, or (2) prevent such employee from receiving
the first 5.5 percent increase in rate of pay as the result of
any adjustments in pay pursuant to section 5343 of title 5,
United States Code, that become effective on or after October
1, 1978, the pay of a prevailing rate employee who was employed
before October 1, 1978, shall not be reduced by this limitation
(1) below that to which the employee was entitled based on his
or her rate of pay on September 30, 1978. . . .
Mr. [Richard C.] White [of Texas]: Mr. Chairman, I raise a
point of order to section 860, that the provisions of this section
constitute legislation in an appropriation bill in violation of
rule XXI, clause 2 of the rules and regulations of the House of
Representatives.
In support, I cite Deschler's Procedures, page 367, section
1.2, in which it states:
[[Page 5683]]
Language in an appropriation bill changing existing law is
legislation and not in order.
And Cannon's Precedents, section 704, which states that the
language controlling executive discretion is legislation and is not
in order on an appropriation bill.
I believe that section 860 enacted into law can be construed as
requiring lower payment of salaries than may be required by law,
specifically Public Law 93-952, and thus it changes existing law. .
. .
Mr. [George H.] Mahon [of Texas]: Mr. Chairman, the object of
the provision is to limit expenditures and retrench programs and
expenditures, it is a limitation on an appropriation bill, which is
designed to save tremendous sums of money over the long run.
The Chairman: (5) The Chair is ready to rule.
---------------------------------------------------------------------------
5. Daniel D. Rostenkowski (Ill.).
---------------------------------------------------------------------------
The first part of the section seems to be a proper limitation,
however the proviso placed on line 3, page 57, certainly is a
legislative statement of purpose and not merely an exception from
the limitation.
The Chair sustains the point of order against the entire
section.
Definition of Term in Abortion Limitation; Requiring Finding of Intent
Sec. 25.14 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.
On June 27, 1974,(6) during consideration of the
Departments of Labor and Health, Education, and Welfare appropriation
bill (H.R. 15580), a point of order was sustained against the following
amendment:
---------------------------------------------------------------------------
6. 120 Cong. Rec. 21687, 93d Cong. 2d Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
Amendment offered by Mr. [Angelo D.] Roncallo of New York:
Amend H.R. 15580 by adding a new section 412 on page 39 of the
bill as follows:
Sec. 412. No part of the funds appropriated under this Act
shall be used in any manner directly or indirectly to pay for
abortions or abortion referral services, abortifacient drugs or
devices, the promotion or encouragement of abortion, or the
support of research designed to develop methods of abortion, or
to force any State, school or school district or any other
recipient of Federal funds to provide abortions or health or
disability insurance abortion benefits. As used in this
section, abortion
[[Page 5684]]
means the intentional destruction of unborn human life, which
life begins at the moment of fertilization. . . .
Mr. [Sidney R.] Yates [of Illinois]: Mr. Chairman, I make a
point of order against the amendment on the ground that this is
legislation in an appropriation bill and it requires the imposition
of new duties upon members of the executive branch, upon other
officers of the Federal Government in order to determine when life
begins. When does fertilization occur?
As part of this amendment, the Chair will note that abortion
means the intentional destruction of unborn human life, which life
begins at the moment of fertilization. That imposes duties upon
somebody to determine as of what point, as of what moment in time
that occurs.
For these reasons, Mr. Chairman, and also it restricts the
definition of the term and it imposes new duties on outside
officials in determining whether the definition has been complied
with. . . .
Mr. Roncallo of New York: Mr. Chairman, I am conceding the
point of order and offering another amendment.
The Chairman: (7) The gentleman concedes the point
of order and the Chair sustains the point of order. The amendment
is ruled out.
---------------------------------------------------------------------------
7. James C. Wright, Jr. (Tex.)
---------------------------------------------------------------------------
Directions on Interpretation of Bill
Sec. 25.15 An amendment to a general appropriation bill which does not
limit or restrict the use or expenditure of funds carried in the
bill, but which provides directions on the way in which the bill
must be interpreted or construed, is legislation.
On Aug. 27, 1980,(8) an amendment to a general
appropriation bill, providing that nothing in the act shall restrict
the authority of the Secretary of Education to carry out the provisions
of title VI of the Civil Rights Act of 1964, was ruled out as
legislation. The proceedings were as follows:
---------------------------------------------------------------------------
8. 126 Cong. Rec. 23535, 96th Cong. 2d Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
Amendment offered by Mr. [Leon E.] Panetta [of California]:
On page 51, after section 308, insert the following new
section:
``Sec. 309. Nothing in this Act shall restrict the
authority of the Secretary of Education to carry out the
provisions of title VI of the Civil Rights Act of 1964.'' . . .
Mr. [Robert E.] Bauman [of Maryland]: Mr. Chairman, I make the
point of order that [the amendment] is legislation on an
appropriation bill. . . .
Mr. Panetta: . . . I believe this is in line. As a proviso it
does not in effect constitute legislation. It really would be a
proviso with regard to the other amendments that were in fact
adopted. I believe that it is parliamentarily acceptable.
The Chairman: (9) The gentleman from Maryland (Mr.
Bauman) makes a point of order on the amendment of
[[Page 5685]]
fered by the gentleman from California (Mr. Panetta).
---------------------------------------------------------------------------
9. Don Fuqua (Fla.).
---------------------------------------------------------------------------
In reviewing the amendment, it appears that it is not in the
form as submitted a restriction or a limitation on the expenditure
of funds, or an exception therefrom, but rather does provide
certain directions as the way in which the bill must be interpreted
and, therefore, is legislation on an appropriation bill.
The Chair sustains the point of order.
CHAPTER 26
Unauthorized Appropriations; Legislation on Appropriation Bills
C. PROVISIONS AS ``CHANGING EXISTING LAW,'' GENERALLY
Sec. 26. Authorizing Statute as Permitting Certain Language in
Appropriation Bill
Conferral of Discretion as Contemplated by Existing Law
Sec. 26.1 Appropriations for traveling expenses, including expenses of
attendance at meetings considered necessary by the National
Bituminous Coal Commission, in the exercise of its discretion, for
the efficient discharge of its responsibilities were held
authorized by a law permitting inclusion of such language in a
general appropriation bill.
On Mar. 14, 1939, (10) the Committee of the Whole was
considering H.R. 4852, an Interior Department appropriation. The Clerk
read as follows, and proceedings ensued as indicated below:
---------------------------------------------------------------------------
10. 84 Cong. Rec. 2739, 2740, 76th Cong. 1st Sess.
---------------------------------------------------------------------------
Salaries and expenses: For all necessary expenditures of the
National Bituminous Coal Commission in performing the duties
imposed upon said Commission by the Bituminous Coal Act of 1937,
approved April 26, 1937 (50 Stat. 72), including personal services
and rent in the District of Columbia and elsewhere; traveling
expenses, including expenses of attendance at meetings which, in
the discretion of the Commission, are necessary for the efficient
discharge of its responsibilities . . . $2,900,000. . . .
Mr. [John] Taber [of New York]: Mr. Chairman, a point of order.
The Chairman: (11) The gentleman will state it.
---------------------------------------------------------------------------
11. Frank H. Buck (Calif.).
---------------------------------------------------------------------------
Mr. Taber: I make a point of order against the paragraph on the
ground it delegates additional power and discretion to the
Commission, and I call particular attention to lines 23, 24, and 25
of page 9, which also contain the words ``in the discretion of the
Commission.''
It seems to me this makes an appropriation and leaves the
amount of the appropriation which shall be spent to the discretion
of the Commission or gives the Commission power to determine
whether the appropriation should be made. It is the same thing as
delegating authority to the Commission to make an appropriation,
and is clearly legislation.
Mr. [Jed] Johnson of Oklahoma: Mr. Chairman, I desire to be
heard in opposition to the point of order.
[[Page 5686]]
If the distinguished gentleman from New York will read title V,
section 83, he will find full and ample authority for the language
to which he objects. . . .
The Chairman: The Chair is ready to rule. The Chair rules that
the inclusion of the words ``in the discretion of the Commission''
is probably covered by the citation given by the gentleman from
Oklahoma [Mr. Johnson]. Title V, section 83, of the United States
Code provides:
That no money appropriated by any act shall be expended for
membership fees or dues of any officer or employee of the
United States in any society or association, etc., or for the
expenses or attendance of any person at any meeting or
convention of members of any society or association unless such
fees, dues, or expenses are authorized to be paid by specific
appropriations for such purpose and are provided for in express
terms in some general appropriation.
The language in the paragraph under consideration seems to
comply with that provision, and the point of order is overruled.
Parliamentarian's Note: This statutory authority is now contained
in 5 USC Sec. 5946, and 5 USC Sec. 4110 also specifically authorizes
appropriations for attendance at any meetings necessary to improve an
agency's efficiency. Thus, new discretionary authority is not conferred
by this language, since the law provides for its inclusion in a general
appropriation bill.
Explicit Waiver of Law; Restrictions on Newspaper Advertisements
Sec. 26.2 Language in the District of Columbia appropriation bill
providing that an appropriation shall not be available for costs of
advertisements in newspapers published outside the District of
Columbia ``notwithstanding the requirement for such advertising
provided by existing law'' was held not in order on a general
appropriation bill.
On Apr. 2, 1937, (12) during consideration in the
Committee of the Whole of the District of Columbia appropriation bill,
a point of order was raised against the following provision:
---------------------------------------------------------------------------
12. 81 Cong. Rec. 3105, 3106, 75th Cong. 1st Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
For general advertising, authorized and required by law,
and for tax and school notices and notices of changes in
regulations, $7,000: Provided, That this appropriation shall
not be available for the payment of advertising in newspapers
published outside of the District of Columbia, notwithstanding
the requirement for such advertising provided by existing law.
Mr. [Vincent L.] Palmisano [of Maryland]: Mr. Chairman, I make
the point of order to the proviso beginning on line 11, page 13:
[[Page 5687]]
Provided, That this appropriation shall not be available
for the payment of advertising in newspapers published outside
of the District of Columbia, notwithstanding the requirement
for such advertising provided by existing law.
I make the point of order that that is legislation on an
appropriation bill.
Mr. [Ross A.] Collins [of Mississippi]: Mr. Chairman, the law
provides that all purchases over $1,000 shall be advertised in
newspapers outside the District of Columbia. The purpose of this
amendment is to save the District a little money, and if the
gentleman from Maryland does not want to do that, it suits me.
Mr. Palmisano: Mr. Chairman, it is not that the gentleman from
Maryland does not want to save the District any money. This is a
question of whether or not we are going to permit the Committee on
Appropriations to come in here and change laws that are now on the
statute books. If we are going to permit that in the case of the
District of Columbia, we might as well wipe out all legislative
committees in this House. That is the question involved.
The Chairman: (13) The Chair inquires of the
gentleman from Maryland whether his point of order is made to the
proviso, beginning on line 11 and extending through line 14?
---------------------------------------------------------------------------
13. Jere Cooper (Tenn.).
---------------------------------------------------------------------------
Mr. Palmisano: It is.
The Chairman: The Chair is prepared to rule. The Chair is of
opinion that especially the last part of the proviso, beginning
with the word ``notwithstanding'' clearly weighs the provisions of
existing law, and therefore changes existing law and would be
legislation on a general appropriation bill, which is prohibited by
the rules of the House. The Chair, therefore, sustains the point of
order.
Waiver of Law; Cultural Relations Program
Sec. 26.3 To a bill making appropriations for the Department of State,
an amendment providing an appropriation for an information and
cultural program to be disseminated in foreign countries was held
to be unauthorized.
On May 14, 1947,(14) during consideration in the
Committee of the Whole of a general appropriation bill (H.R. 3311), a
point of order was raised against the following amendment:
---------------------------------------------------------------------------
14. 93 Cong. Rec. 5291, 5292, 80th Cong. 1st Sess.
---------------------------------------------------------------------------
Mr. [J. Vaughan] Gary [of Virginia]: Mr. Chairman, I offer an
amendment.
The Clerk read as follows:
Amendment offered by Mr. Gary: Page 2, line 18, after the
semicolon insert ``acquisition, production, and free
distribution of informational materials for use in connection
with the operation, independently or through individuals,
including aliens, or public or private agencies (foreign or
domestic), and without regard to section 3709 of the Revised
Statutes, of an information program outside of the continental
United States, including the purchase of radio time . . . and
the purchase,
[[Page 5688]]
rental . . . and operation of facilities for radio transmission
and reception, the acquisition of land and interests in land .
. . for radio broadcasting and relay facilities, and the
acquisition or construction of buildings and necessary
improvements on such lands; purchase and presentation of
various objects of a cultural nature suitable for presentation
(through diplomatic and consular offices) to foreign
governments, schools, or other cultural or patriotic
organizations . . . not to exceed $13,000 for entertainment.''
Mr. [Karl] Stefan [of Nebraska]: Mr. Chairman, I make a point
of order against the amendment.
The Chairman: (15) The gentleman will state his
point of order.
---------------------------------------------------------------------------
15. Carl T. Curtis (Nebr.).
---------------------------------------------------------------------------
Mr. Stefan: Mr. Chairman, I make the point of order this is not
authorized by law and it is legislation on an appropriation bill. .
. .
The Chairman: Does the gentleman from Virginia desire to be
heard on the point of order?
Mr. Gary: I do not, Mr. Chairman.
The Chairman: The Chair is prepared to rule. It is the opinion
of the Chair that the amendment does propose legislation on an
appropriation bill, the functions therein referred to not being
authorized by law.
The point of order is sustained
Consultant Salaries; Setting Limit on Per Diem Permitted by Law
Sec. 26.4 A provision in a general appropriation bill authorizing
expenditures of funds provided in the bill for temporary services
of consultants at rates not in excess of $100 per day was held to
be in order as a limitation.
On Apr. 24, 1951,(16) the Committee of the Whole was
considering H.R. 3790, an Interior Department appropriation bill. The
following proceedings took place:
---------------------------------------------------------------------------
16. 97 Cong. Rec. 4307, 82d Cong. 1st Sess.
---------------------------------------------------------------------------
Administrative Provisions
Appropriations of the Bonneville Power Administration shall be
available to carry out all the duties imposed upon the
Administrator pursuant to law, including not to exceed $40,000 for
services as authorized by section 15 of the act of August 2, 1946
(5 U.S.C. 55a), including such services at rates not to exceed $100
per diem for individuals; purchase of not to exceed 16 passenger
motor vehicles of which 12 shall be for replacement only; and
purchase (not to exceed 2) of aircraft. . . .
Mr. [Edward H.] Rees of Kansas: Mr. Chairman, I make a point of
order against the language appearing in the bill beginning with
line 24, page 5, and continuing through to line 12, page 6, on the
ground it is legislation on an appropriation bill. . . .
The Chairman: (17) For the information of the
gentleman from Kansas the Chair will read from the United States
Code, title 5, on page 79, section 35a:
---------------------------------------------------------------------------
17. Wilbur D. Mills (Ark.).
---------------------------------------------------------------------------
Temporary employment of experts or consultants; rate of
compensation:
[[Page 5689]]
The head of any department, when authorized in an
appropriation or other act, may procure the temporary (not in
excess of 1 year) or intermittent services of experts or
consultants or organizations thereof, including stenographic
reporting services, by contract and in such cases such service
shall be without regard to the civil service and classification
laws (but as to agencies subject to sections . . . at rates not
in excess of the per diem equivalent of the highest rate
payable under said sections, unless other rates are
specifically provided in the appropriation or other law) and
except in the case of stenographic reporting services by
organizations without regard to section 5 of title 41. . . .
As the Chair understands, there is no per diem ceiling fixed in
the provision to which the Chair has alluded. The gentleman from
New York mentions a ceiling, and then the authority of the
committee to place a limitation under that ceiling. Does the
gentleman from New York know of some ceiling provided in law for
per diem pay?
Mr. [John] Taber [of New York]: I do not, but there is
legislation to fix the rate of pay, and the authority contained in
the legislation would not give the Committee on Appropriations
jurisdiction because the jurisdiction of the committee is governed
by the rules of the House. You cannot change the rules of the House
by legislation.
The Chairman: The gentleman from New York is correct that you
cannot change the rules of the House by legislation, but the
language referred to by the Chair seems to authorize beyond any
doubt the per diem payment by this service to individuals. There
does not appear to be any ceiling fixed upon what the payment per
day may be. So it appears to the Chair that the language contained
in the bill in line 4 through ``individuals'' in line 5 on page 6
is actually in the form of a limitation. Therefore, the Chair
overrules the point of order made by the gentleman from Kansas.
Restrictions on Authority of Executive
Sec. 26.5 In an appropriation bill provisions limiting certain housing
starts, prohibiting the use of an appropriation unless certain
regulations are adopted, requiring that expenditures of such
appropriation be subject to audit, and requiring the performance of
duties by local housing authorities were held to be legislation.
On Mar. 30, 1954,(18) during consideration in the
Committee of the Whole of the independent offices appropriation bill
(H.R. 8583), a point of order was raised against the following
provision:
---------------------------------------------------------------------------
18. 100 Cong. Rec. 4123, 4124, 83d Cong. 2d Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
Annual contributions: For the payment of annual
contributions to public housing agencies . . .
$63,950,000: Provided, That except for payments required on
contracts entered into prior to April 18, 1940, no part of this
appropriation shall be available for payment to any public
housing agency for expenditure in
[[Page 5690]]
connection with any low-rent housing project, unless the public
housing agency shall have adopted regulations prohibiting
[occupancy by] any person other than a citizen of the United
States . . . Provided further, That all expenditures of this
appropriation shall be subject to audit and final settlement by
the Comptroller General of the United States under the
provisions of the Budget and Accounting Act of 1921, as
amended: Provided further, That unless the governing body of
the locality agrees to its completion, no housing shall be
authorized by the Public Housing Administration, or, if under
construction continue to be constructed, in any community where
the people of that community, by their duly elected
representatives, or by referendum, have indicated they do not
want it, and such community shall negotiate with the Federal
Government for the completion of such housing, or its
abandonment . . . and shall agree to repay to the Government
the moneys expended prior to the vote or other formal action
whereby the community rejected such housing project for any
such projects not to be completed . . . Provided further, That
the record of expenditure of the Public Housing Administration
and of the local housing authority on any public housing
project shall be open to examination by the responsible
authorities of any community in which such project is located,
or by the local public housing authority, or by any firm of
public accountants retained by either of the foregoing . . .
Provided further, That notwithstanding the provisions of the
United States Housing Act of 1937, as amended, the Public
Housing Administration shall not, with respect to projects
initiated after March 1, 1949, authorize during the fiscal year
1955 the commencement of construction of in excess of 20,000
dwelling units. . . .
[Points of order were heard.]
The Chairman: (19) Does the gentleman from
California desire to be heard on these points of order?
---------------------------------------------------------------------------
19. Louis E. Graham (Pa.).
---------------------------------------------------------------------------
Mr. [John] Phillips [of California]: Mr. Chairman, may I take
them up in the order in which they were made.
The effect of the point of order made against the proviso on
page 31, line 12, is this, as the committee understands it. It is
to remove the limitation and leave the opinion of the Comptroller
General to stand that there could then be built no more than 33,000
or 34,000 houses--whatever the exact number is --that were
contracted for prior to the adoption of the appropriation bill of 2
years ago for the fiscal year 1953. We concede the point of order.
. . .
The Chairman: The Chair is ready to rule.
The Chair has in mind Public Law 176 of the 83d Congress which
has been referred to, and the sections which have been quoted here.
The Chair also has in mind the provisos and will pass upon the
point of order raised by the gentleman from Virginia [Mr. Smith]
and the points of order raised by the gentleman from New York [Mr.
Multer] beginning on page 29, line 12 and extending to the end of
the paragraph. In the opinion of the Chair, the language is purely
legislation on an appropriation bill and the Chair sustains the
points of order.
Waiver of Law; Requiring Testimony of Congressmen
Sec. 26.6 To an amendment to a general appropriation bill, an amendment
providing
[[Page 5691]]
that notwithstanding the provisions of any other law, the
Constitution or court decisions, no Member of Congress shall refuse
to respond to demands for information by executive agencies or
private persons or groups was held to be legislation.
On June 22, 1972,(20) during consideration in the
Committee of the Whole of a general appropriation bill (H.R 15585), a
point of order was raised against the following amendment:
---------------------------------------------------------------------------
20. 118 Cong. Rec. 22107, 92d Cong. 2d Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
Amendment offered by Mr. [Garry E.] Brown of Michigan to
the amendment offered by Mr. Moorhead: At end of that
amendment, insert: ``Provided further, Notwithstanding the
provisions of any other law, the Constitution, or any precedent
of the courts, no Member of the Congress shall refuse to answer
and appropriately respond to any demand for his presence, his
papers, or his records, made by any agency, commission,
Department or person of the executive branch, or any proper
citizen oriented organization or interested person, making such
demand.''
Mr. [Frank T.] Bow [of Ohio]: Mr. Chairman, I make a point of
order against the amendment to the amendment, and I do not think I
need to argue it.
The Chairman: (1) Does the gentleman from Michigan
(Mr. Brown) desire to be heard on the point of order?
---------------------------------------------------------------------------
1. John S. Monagan (Conn.).
---------------------------------------------------------------------------
Mr. Brown of Michigan: Mr. Chairman, I defer to my very
eloquent and intelligent colleague, and I think he makes a good
point.
The Chairman: The point of order is sustained.
Waiver of Provision of Procurement Law
Sec. 26.7 Language in a general appropriation bill waiving the
provisions of existing law was held to constitute legislation where
the law being waived did not specifically permit exceptions
therefrom to be contained in appropriation bills.
On Nov. 13, 1975,(2) it was held that, while 41 USC
Sec. 5 provides that ``unless otherwise provided in the appropriation
concerned or other law, purchases and contracts for supplies or
services for the government may be made or entered into only after
advertising a sufficient time previously for proposals'', language in a
general appropriation bill authorizing the Congressional Budget Office
to contract without regard to that provision constituted legislation in
violation of Rule XXI clause 2 based upon a prior ruling of the Chair
and also upon the language of the statute itself permitting an
[[Page 5692]]
appropriation or other law, but not a bill, to waive its provisions.
The proceedings are discussed in Sec. 37.13, infra.
---------------------------------------------------------------------------
2. 121 Cong. Rec. 36271, 94th Cong. 1st Sess.
---------------------------------------------------------------------------
CHAPTER 26
Unauthorized Appropriations; Legislation on Appropriation Bills
C. PROVISIONS AS ``CHANGING EXISTING LAW,'' GENERALLY
Sec. 27. Provisions Affecting or Affected by Funds in Other Acts
In General; Language Not Limited to Funds in Bill
Sec. 27.1 It is not in order, in the guise of a limitation on a general
appropriation bill, to deny the use of funds not contained in the
bill to pay salaries of persons connected with agencies not covered
by the bill.
On June 28, 1971,(3) during consideration in the
Committee of the Whole of a general appropriation bill (H.R. 9271), a
point of order was raised against the following amendment:
---------------------------------------------------------------------------
3. 117 Cong. Rec. 22442, 22443, 92d Cong. 1st Sess.
---------------------------------------------------------------------------
Mr. William D. Ford [of Michigan]: Mr. Chairman, I offer an
amendment.
The Clerk read as follows:
Amendment offered by Mr. William D. Ford: On page 36,
insert ``(a)'' immediately after ``Sec. 508.'' in line 10; and
immediately below line 14 on page 36 insert the following:
``(b) No part of any appropriation contained in this or any
other Act shall be available for the payment of the salary of
any officer or employee of the United States Postal Service, or
any officer or employee of the Government of the United States
outside the United States Postal Service, who--
``(1) prohibits or prevents, or attempts or threatens to
prohibit or prevent, any officer or employee of the United
States Postal Service from having any direct oral or written
communication or contact with any member or committee of
Congress in connection with any matter pertaining to the
employment of such officer or employee or pertaining to the
United States Postal Service in any way, irrespective of
whether such communication or contact is at the initiative of
such officer or employee or in response to the request or
inquiry of such Member or committee; or
``(2) removes, suspends from duty without pay, demotes,
reduces in rank, seniority, status, pay, or performance or
efficiency rating, denies promotion to, relocates, reassigns,
transfers, disciplines, or discriminates in regard to any
employment right, entitlement, or benefit, or any term or
condition of employment of, any officer or employee of the
United States Postal Service, or attempts or threatens to
commit any of the foregoing actions with respect to such
officer or employee, by reason of any communication or contact
of such officer or employee with any Member or committee of
Congress as described in paragraph (1) of this subsection.''
Mr. [Frank T.] Bow [of Ohio]: Mr. Chairman, I make a point of
order against the amendment, and I should like to be heard on the
point of order.
The Chairman: (4) At this point?
---------------------------------------------------------------------------
4. John S. Monagan (Conn.).
---------------------------------------------------------------------------
Mr. Bow: Yes, Mr. Chairman.
[[Page 5693]]
Mr. Chairman, this, it seems to me, is subject to a point of
order in several instances. First of all, there is paragraph (b) of
the amendment. There is a provision that no part of any
appropriation contained in this or any other act shall be available
for the payment of the salary of any officer or employee of the
U.S. Postal Service. It is not limited to this act but to any other
act, which I think makes it subject to a point of order.
Furthermore, under the next provision, which prohibits or
prevents, or attempts or threatens to prohibit or prevent, that
puts such additional duties on the director of the Postal Service
that it becomes almost impossible for him to administer this,
particularly as to further threats in the future.
I believe it is very apparent from reading this that additional
duties are placed on the executive branch of the Government, on the
Postal Service, and in addition to any objections to part (b) or
the rest of the amendment, I believe it is sufficient to sustain
the point of order.
The Chairman: Does the gentleman from Michigan desire to be
heard on the point of order?
Mr. William D. Ford: Yes, I do, Mr. Chairman.
First of all, it is not necessary to legislate with this
amendment, because the law that this amendment attempts to enforce
has been on the books and it has been the law of this country since
1912. We now have substantive law which now very substantially says
that you shall not do any of the things set forth in this act. What
this amendment proposes to do is withhold the expenditure of the
supplemental funds being appropriated by this bill to the operation
of the Postal Service from anyone who violates the law that has
been the law since 1912. The only determination that is necessary
to be made by anybody is not to violate the law. . . .
The Chairman: The . . . Chair is ready to rule.
The Chair finds that this amendment does not impose additional
duties to the extent that is objectionable under the precedents
relating to limitations on appropriation bills. However, the Chair
also finds that the amendment does seek to cover matters beyond
those which are in the purview of this bill since it provides that
no part of any appropriation contained in this or any other act
shall be available for certain purposes with respect to officers or
employees of the Government whether inside or outside the U.S.
Postal Service or agencies covered by this bill.
Therefore, this constitutes legislation on the pending
appropriation bill and the Chair sustains the point of order.
Restriction on Corporate Funds Other Than Those Appropriated
Sec. 27.2 An amendment to an appropriation bill in the form of a
limitation which is applicable also to moneys appropriated in other
acts is legislation and not in order: an amendment to an
appropriation bill providing that no part of any appropriation
contained in this act, or of the funds available for ex
[[Page 5694]]
penditure by any corporation included in this act, shall be used
for a stated purpose was held to be legislation and not in order.
On May 10, 1950,(5) during consideration in the
Committee of the Whole of the general appropriation bill (H.R. 7786), a
point of order was raised against the following amendment:
---------------------------------------------------------------------------
5. 96 Cong. Rec. 6834, 81st Cong. 2d Sess.
---------------------------------------------------------------------------
Mr. [Jacob K.] Javits [of New York]: Mr. Chairman, I offer an
amendment.
The Clerk read as follows:
Amendment offered by Mr. Javits: On page 417, after line
14, insert a new section 1110, and appropriately renumber
succeeding sections. The new section to read as follows:
``Sec. 1110. No part of any appropriation contained in this
act, or of the funds available for expenditure by any
corporation included in this act, shall be used to pay the
salary or wages of any person who advocates, or practices the
denial to any citizen of the United States of the right to
apply for, hold or be promoted in any Government position or
office on the grounds of race, color, religion, or national
origin.''
Mr. [Louis C.] Rabaut [of Michigan]: Mr. Chairman, I make the
point of order against the amendment that it goes beyond the scope
of the bill.
Mr. Javits: Mr. Chairman, may I be heard on the point of order?
The Chairman: (6) The Chair will hear the gentleman.
---------------------------------------------------------------------------
6. Jere Cooper (Tenn.).
---------------------------------------------------------------------------
Mr. Javits: Mr. Chairman, I point out that the provision which
I have suggested as an amendment will result in retrenchment
because it may result in withholding wages or salaries from
employees of the United States. That is all that this refers to. It
would affect the appropriations made under this act and therefore
comes within the rules of propriety as an amendment to an
appropriation bill.
The Chairman: The Chair is prepared to rule. The gentleman from
New York [Mr. Javits] has offered an amendment which has been
reported. The gentleman from Michigan [Mr. Rabaut] makes a point of
order against the amendment on the ground that it goes beyond the
scope of the pending bill.
The Chair has examined the amendment offered by the gentleman
from New York, and is of the opinion that it does go beyond the
scope of the pending bill. The Chair invites attention to the fact
that it seeks to affect funds of corporations not necessarily
appropriated for in this bill.
The Chair therefore sustains the point of order.
Sec. 27.3 To an appropriation bill, an amendment in the form of a
limitation providing that no funds available for expenditure by any
corporation or agency included in this act shall be used for
publicity or propaganda purposes was held to go to funds not in the
bill and therefore was legislation not in order.
[[Page 5695]]
On July 22, 1958,(7) the Committee of the Whole was
considering H.R. 13450, a supplemental appropriation bill. The Clerk
read as follows:
---------------------------------------------------------------------------
7. 104 Cong. Rec. 14664, 85th Cong. 2d Sess.
---------------------------------------------------------------------------
Amendment offered by Mr. [H. R.] Gross [of Iowa]: On page 29,
after line 17, add the following new chapter and paragraph:
``chapter xiv
``No part of any appropriation contained in this act, or any
funds available for expenditure by any corporation or agency
included in this act, shall be used for publicity or propaganda
purposes designed to support or defeat legislation pending before
the Congress.''
Mr. [Louis C.] Rabaut [of Michigan]: Mr. Chairman, a point of
order.
The gentleman's amendment refers to expenditure of funds not in
this bill. Therefore, it is legislation on an appropriation bill.
Mr. Gross: It is the same amendment I have offered to previous
appropriation bills. It is a limitation upon spending. It has been
accepted in other appropriation bills by the Chairman of the
Committee. It is simply a limitation, that they cannot spend money
for propaganda purposes for the promotion of legislation.
The Chairman: (8) It is a limitation on the funds
available for expenditure by any corporation or agency included in
this act. For that reason the Chair sustains the point of order
made by the gentleman from Michigan.
---------------------------------------------------------------------------
8. James J. Delaney (N.Y.).
---------------------------------------------------------------------------
Restriction on Future Funds
Sec. 27.4 An amendment to a general appropriation bill permanently
limiting amounts of farm program payments to producers, even though
the money for such payments was not carried in the pending bill,
and requiring certain determinations to be made by the Secretary of
Agriculture, was held to be legislation and was ruled out on a
point of order.
On May 26, 1969,(9) during consideration in the
Committee of the Whole of the Agriculture Department appropriation bill
(H.R. 11612), a point of order was raised against the following
amendment:
---------------------------------------------------------------------------
9. 115 Cong. Rec. 13759, 13760, 91st Cong. 1st Sess.
---------------------------------------------------------------------------
Mr. [Ancher] Nelsen [of Minnesota]: Mr. Chairman, I offer a
substitute amendment to the amendment offered by the gentleman from
Massachusetts [Mr. Conte]:
The Clerk read as follows:
Substitute amendment offered by Mr. Nelsen to the amendment
offered by Mr. Conte: On page 22, line 17, strike the period
and add a colon and the following: Provided further, That
notwithstanding any other provision of law, in the case of any
pro
[[Page 5696]]
ducer entitled to payments for any calendar year after 1969,
under price support or commodity program, the Incentive
payments, Diversion payments, Price support payments, and Wheat
marketing certificate payments to any single recipient,
exceeding in the aggregate the amount of $10,000, the amount of
such payments with respect to that year to which the producer
would otherwise be entitled shall be reduced in accordance with
this subsection. If the aggregate amount of the payment is--
``(1) over $10,000 but not over $15,000, the reduction is
10 percent of the excess over $10,000
``(2) over $15,000 but not over $25,000, the reduction is
$500 plus 15 percent of the excess over $15,000
``(3) over $25,000 but not over $50,000, the reduction is
$2,000, plus 20 percent of the excess over $25,000
``(4) over $50,000 but not over $100,000, the reduction is
$7,000 plus 25 percent of the excess over $50,000
``(5) over $100,000 but not over $500,000, the reduction is
$19,500, plus 35 percent of the excess over $100,000
``(6) over $500,000 but not over $1,000,000, the reduction
is $159,500, plus 45 percent of the excess over $500,000
``(7) over $1,000,000, the reduction is $384,500 plus 55
percent of the excess over $1,000,000.
``For the purposes of this section, payments include the
dollar value (as determined by the Secretary of Agriculture) of
any payments-in-kind made to a producer, but do not include the
amount of any price support loan made to a producer.''
Mr. [Jamie L.] Whitten [of Mississippi]: Mr. Chairman, I make a
point of order against the amendment.
The Chairman: (10) The gentleman will state his
point of order.
---------------------------------------------------------------------------
10. James C. Wright, Jr. (Tex.).
---------------------------------------------------------------------------
Mr. Whitten: Mr. Chairman, this amendment, on its face, will
usurp completely the jurisdiction of the Committee on Agriculture.
It is not only legislation, but is rather complete, complex, and
lengthy. It is certainly not only legislation on an appropriation
bill, but it is a substitute on an appropriation bill in the nature
of legislation.
The Chairman: Does the gentleman from Minnesota wish to be
heard on the point of order?
Mr. Nelsen: Mr. Chairman, I would submit to this body that if a
limitation as provided in the previous amendment is in order,
certainly this amendment would also be in order and I ask for a
ruling by the Chair.
The Chairman: The Chair is prepared to rule. This substitute
offered by the gentleman from Minnesota (Mr. Nelsen) is clearly
distinguishable from the amendment offered by the gentleman from
Massachusetts (Mr. Conte).
The gentleman from Massachusetts (Mr. Conte) offered an
amendment which provided that no part of the funds appropriated by
this act should be used for certain specific purposes.
The substitute offered by the gentleman from Minnesota (Mr.
Nelsen) goes much further than this. It does not constitute a
limitation upon this act but indeed applies to other acts and
amounts. Clearly in the opinion of the Chair it proposes
legislation such as is prohibited in an appropriation bill.
Therefore, the Chair sustains the point of order against the
substitute.
[[Page 5697]]
Limitation Must Be Applicable Solely to Funds in Bill
Sec. 27.5 To a paragraph making appropriations for parity payments, an
amendment providing that total payments to any person under soil
conservation and parity payments shall not exceed $2,500 was held
to be not confined to funds in the bill and therefore legislation.
On Mar. 28, 1939,(11) the Committee of the Whole was
considering H.R. 5269, an Agriculture Department appropriation. The
Clerk read as follows:
---------------------------------------------------------------------------
11. 84 Cong. Rec. 3446, 76th Cong. 1st Sess.
---------------------------------------------------------------------------
Amendment offered by Mr. [Edward H.] Rees of Kansas to the
amendment offered by Mr. [Clarence] Cannon of Missouri: At the end
of Mr. Cannon's amendment add the following: ``Provided, That total
payments to any person, firm, or corporation under soil
conservation and parity payments shall not exceed $2,500.''
Mr. Cannon of Missouri: Mr. Chairman, I make the point of order
against the amendment that it is legislation on an appropriation
bill.
The Chairman: (12) Does the gentleman from Kansas
desire to be heard on the point of order?
---------------------------------------------------------------------------
12. Wright Patman (Tex.).
---------------------------------------------------------------------------
Mr. Rees of Kansas: No, I do not believe I do, Mr. Chairman,
although I do not believe it is legislation.
Mr. [John] Taber [of New York]: Mr. Chairman, this is a pure
limitation, as I understand it, limiting the amount that can be
paid out under the bill to any one person and therefore is clearly
in order.
The Chairman: The Chair is of the opinion that the amendment is
entirely too broad in that it would not only include this
appropriation but other appropriations as well and the point of
order is therefore sustained.
Sec. 27.6 To an appropriation bill an amendment providing that no
payments shall be made for soil conservation practices on land
respecting which such payments have been made within the past 10
years was held to restrict the use of funds not contained in the
pending bill and therefore to be legislation.
On Apr. 14, 1954,(13) during consideration in the
Committee of the Whole of the Agriculture Department appropriation bill
(H.R. 8779), a point of order was raised against the following
amendment:
---------------------------------------------------------------------------
13. 100 Cong. Rec. 5175, 5176, 83d Cong. 2d Sess.
---------------------------------------------------------------------------
Mr. [Karl C.] King of Pennsylvania: Mr. Chairman, I offer an
amendment.
The Clerk read as follows:
Amendment offered by Mr. King of Pennsylvania: On page 24,
in line 24, change the period to a colon and add the following:
``Provided further, That no payments or grants shall be made
for approved practices on land
[[Page 5698]]
which during any 1 of the previous 10 years has been the
location of a practice for which payments or grants were made
under this program.''
Mr. H. Carl Andersen [of Minnesota]: Mr. Chairman, I make a
point of order.
The Chairman: (14) The gentleman will state it.
---------------------------------------------------------------------------
14. Harris Ellsworth (Oreg.).
---------------------------------------------------------------------------
Mr. H. Carl Andersen: In my opinion, this is clearly
legislation upon an appropriation bill. . . .
The Chairman: The Chair is ready to rule
The gentleman from Pennsylvania [Mr. King] has offered an
amendment to which a point of order has been made by the gentleman
from Minnesota [Mr. H. Carl Andersen].
The Chair has examined the amendment. In view of the fact that
the language of the amendment would seem to impose further duties
and apparently provide a restriction on the use of funds not
contained in the pending bill, the Chair sustains the point of
order.
Sec. 27.7 Limitations on appropriations must apply solely to the money
of the appropriation under consideration, and may not be made
applicable to money appropriated in other acts: to the Agriculture
Department appropriation bill for 1944 an amendment in the form of
a limitation limiting the payments for programs under the
Agriculture Act of 1938, but not limiting the money in the pending
bill was held as legislation on an appropriation bill and not in
order.
On Apr. 17, 1943,(15) during consideration in the
Committee of the Whole of the Agriculture Department appropriation bill
(H.R. 2481), a point of order was raised and sustained against the
following amendment:
---------------------------------------------------------------------------
15. 89 Cong. Rec. 3525, 3526, 78th Cong. 1st Sess.
---------------------------------------------------------------------------
Mr. [Edward H.] Rees of Kansas: Mr. Chairman, I offer the
following amendment which I send to the desk.
The Clerk read as follows:
Page 65, line 2, after the word ``inclusive'', insert
``Provided, That no total payments for programs under the
Agricultural Act of 1938, and for soil conservation and water
conservation practices, for any year to any person, firm, or
corporation under this section shall exceed $500: Provided
further, That this limitation shall not be construed to deprive
any share renter of payments not exceeding $500 to which he
would otherwise be entitled.'' . . .
Mr. [Malcolm C.] Tarver [of Georgia]: Very well. Mr. Chairman,
I make the point of order that the amendment is in the nature of
legislation insofar that it involves the question of payments of
$500 or less, as I understood it, when it was read--I have not had
time to examine it. It does not show retrenchment upon its face.
While portions of it might be construed as limitations under the
Holman rule, the amendment as a whole does include
[[Page 5699]]
legislative provisions and for that reason is not in order. . . .
Mr. [Francis H.] Case [of South Dakota]: Mr. Chairman, the
amendment would apply to funds other than those covered by this
act. Consequently it would be legislation on an appropriation bill.
The Chairman: (16) Does the gentleman from Kansas
desire to be heard further on the point of order?
---------------------------------------------------------------------------
16. William M. Whittington (Miss.).
---------------------------------------------------------------------------
Mr. Rees of Kansas: The language of this amendment follows the
language of the bill.
The Chairman: The Chair is prepared to rule. The Chair would
call attention to the fact that under the amendment cited by the
gentleman during the consideration of an appropriation bill in
1942, the language of that amendment was confined to the
appropriation then under consideration. The first two lines of that
amendment read as follows:
Provided, That no total payments for any year to any
person, firm, or corporation under this section shall exceed
$500.
That is under the act then pending. The Chair would remind the
gentleman that under the amendment he now proposes, and I read from
that amendment:
Provided, That no total payments for programs under the
Agricultural Act of 1938, and for soil conservation and water
conservation practices, for any year to any person, firm or
corporation under this section shall exceed $500; and provided
that this limitation shall not be construed to deprive any
share renter of payments not exceeding $500 to which he would
otherwise be entitled.
It is clearly in violation of the rule, because it is not
limited to the appropriation under consideration. The Chair is
constrained to sustain the point of order, and the Chair sustains
the point of order.
Sec. 27.8 A limitation in an appropriation bill must apply solely to
the money of the appropriation under consideration and may not be
applicable to money appropriated in other acts: language in the
Agriculture Department appropriation bill in the form of a
limitation seeking to appropriate not to exceed $175,000 of the
permanent appropriation under the Agriculture Adjustment Act of
1933 to enable the Secretary to protect the interests of consumers
and maintain a stable supply of agriculture commodities at fair
prices, was held to be a limitation on the Act of 1933 rather than
a limitation on money in the pending bill and therefore legislation
on an appropriation bill and not in order.
On Apr. 19, 1943,(17) during consideration in the
Committee of the Whole of the Agriculture Department appropriation bill
(H.R. 2481), a point of order was sus
[[Page 5700]]
tained against the following provision:
---------------------------------------------------------------------------
17. 89 Cong. Rec. 3583, 3584, 78th Cong. 1st Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
Consumers' Counsel Division
administrative expenses
Not to exceed $175,000 of the unobligated balance of the
appropriation made by section 12(a), title I, of the
Agricultural Adjustment Act, approved May 12, 1933, as amended
(7 U.S.C. 612), shall be available during the fiscal year 1944
to enable the Secretary to further perform the duty imposed
upon him under applicable laws to protect the interests of
consumers with due regard to the maintenance of a continuous
and stable supply of agricultural commodities adequate to meet
consumer demand at prices fair to both producers and consumers,
which sum shall be available for administrative expenses
(including not to exceed $37,200 for printing and binding) in
accordance with the provisions of subsection (a) of the
aforesaid section 392.
Mr. [Stephen] Pace [of Georgia]: Mr. Chairman, a point of
order.
The Chairman: (18) The gentleman will state it.
---------------------------------------------------------------------------
18. William M. Whittington (Miss.).
---------------------------------------------------------------------------
Mr. Pace: Mr. Chairman, I make the point of order against the
section just read on the ground that it is legislation on an
appropriation bill and seeks to appropriate funds not authorized by
law. . . .
Mr. [John] Taber [of New York]: Will the gentleman yield?
Mr. Pace: I yield to the gentleman from New York.
Mr. Taber: Is it not a fact that that money was not available
for a Consumers' Counsel Division and this language that is in here
is not a reappropriation which would have to be made in order to
make the money available?
Mr. Pace: Not only that, but if this $100,000,000 appropriated
in 1933 is still available it does not have to be reappropriated.
It is just like the gentleman from Georgia [Mr. Tarver] said, at
the time the matter was presented to the committee, and let me read
again his words:
This language is legislative in character because if you
are already authorized to do that you do not need it
That is, part of the $100,000,000 is still there.
If you are not authorized to do it, we cannot give you such
authorization in an appropriation bill.
Mr. Chairman, I submit that it is no more than an effort on the
part of the Department of Agriculture to secure an additional
$175,000 in excess of the 4 percent, which is a direct violation of
the law and is not authorized by law and is legislative in
character. . . .
The Chairman: The Chair is prepared to rule.
The gentleman from Georgia [Mr. Pace] makes a point of order
against the pending paragraph that it is legislation not authorized
by law. The paragraph undertakes to reappropriate $175,000 of the
permanent appropriation under an act of 1933 and to limit the
appropriation by the language of the pending paragraph to the
purpose set forth in the pending paragraph, and thus undertakes to
limit the reappropriation of $175,000 unallocated to the previous
appropriation by a limitation that would apply to that act rath
[[Page 5701]]
er than a limitation that would apply to an amount appropriated
under the terms of this bill.
The Chair sustains the point of order.
Social Security Supplemental; Restriction on ``Funds Under This Head''
Sec. 27.9 Language in a supplemental appropriation bill providing that
not to exceed a sum certain ``available under this head for the
fiscal year . . . shall be expended for State and local
administration,'' was held to apply to funds not carried in the
bill and therefore not in order.
On Feb. 5, 1957,(19) during consideration in the
Committee of the Whole of a deficiency appropriation bill (H.R 4249), a
point of order was raised and sustained against the following
provision:
---------------------------------------------------------------------------
19. 103 Cong. Rec. 1549, 85th Cong. 1st Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
Social Security Administration
Grants to States for public assistance
For an additional amount for ``Grants to States for public
assistance,'' $275,000,000: Provided, That not to exceed
$99,000,000 of the funds available under this head for the
fiscal year ending June 30, 1957, shall be expended for State
and local administration.
Mrs. [Edith S.] Green of Oregon: Mr. Chairman, I make a point
of order against that part of the chapter following the colon in
line 7 and reading: ``Provided, That not to exceed $99,000,000 of
the funds available under this head for the fiscal year ending June
30, 1957, shall be expended for State and local administration,''
on the ground that it is legislation on an appropriation bill.
Mr. [Henderson L.] Lanham [of Georgia]: Mr. Chairman, the point
of order is conceded.
The Chairman: (20) The Chair has examined the
language and feels that it is legislation on an appropriation bill.
---------------------------------------------------------------------------
20. Wilbur D. Mills (Ark.).
---------------------------------------------------------------------------
The point of order is sustained
Military Pay; Limitation Not on Funds But Total Compensation
Sec. 27.10 Language in an appropriation bill limiting, not funds in the
bill, but the percentages of military and civilian employees in the
Department of Defense, and not limiting the appropriation to those
carried in the bill, was held to be legislation and not in order.
On Apr. 9, 1952,(1) The Committee of the Whole was
considering H.R. 7391, a Department of Defense appropriation bill. The
Clerk read as follows:
---------------------------------------------------------------------------
1. 98 Cong. Rec. 3890, 82d Cong. 2d Sess.
---------------------------------------------------------------------------
Sec. 634. No pay, compensation, or allowances shall be paid for
commis
[[Page 5702]]
sioned officer personnel in excess of the following percentages of
total personnel of the Department concerned: [A table showing the
percentages was included at this point.]
Mr. [Carl] Vinson [of Georgia]: Mr. Chairman, I make the point
of order that section 634 is legislation on an appropriation bill
and, therefore, subject to a point of order. . . .
Mr. [Glenn R.] Davis of Wisconsin: . . . Mr. Chairman, I
concede the point of order against the section as now written.
The Chairman: (2) The gentleman from Wisconsin
concedes the point of order. The point of order is sustained.
---------------------------------------------------------------------------
2. Aime J. Forand (R.I.).
---------------------------------------------------------------------------
Tennessee Valley Authority
Sec. 27.11 To an appropriation bill, an amendment providing that not to
exceed a specific amount of the funds available to the Tennessee
Valley Authority shall be used for personal services, but not
limiting it to funds in the bill, was held to be legislation and
not in order.
On Mar. 21, 1952,(3) The Committee of the Whole was
considering H.R. 7072, an independent offices appropriation bill. The
Clerk read as follows:
---------------------------------------------------------------------------
3. 98 Cong. Rec. 2673, 2674, 82d Cong. 2d Sess.
---------------------------------------------------------------------------
Amendment offered by Mr. [Kenneth B.] Keating [of New York]: On
page 35, line 24, strike out the period, insert a comma, and add
the following: ``and not to exceed $99,131,125 of the funds
available to the Tennessee Valley Authority shall be used for
personal services.''
Mr. [Albert] Thomas [of Texas]: Mr. Chairman, I make a point of
order against the amendment but will reserve it to permit the
gentleman from New York to make his statement. . . .
The Chairman: (4) The Chair is ready to rule.
---------------------------------------------------------------------------
4. Wilbur D. Mills (Ark.).
---------------------------------------------------------------------------
The Chair has before him the amendment offered by the gentleman
from New York on page 35, line 24, to which the gentleman from
Texas [Mr. Thomas] makes a point of order. The amendment says not
to exceed so many dollars of funds available to the Tennessee
Valley Authority shall be used for personal services. As the Chair
reads the amendment it is not limited to funds contained in the
bill now before the Committee. The fact that the amendment may be
patterned after language in the bill would still not make the
amendment in order if it goes to funds beyond those contained in
the bill before the Committee, thus adding legislation
The Chair is not called upon to rule on the question of
legislative provisions allowed to remain in the bill, in view of
the rule adopted waiving points of order. The Chair is of the
opinion that this amendment applies a new restriction on funds not
contained in the bill thus adding legislation and therefore
sustains the point of order.]
Sec. 27.12 A limitation to be in order on an appropriation
[[Page 5703]]
bill must apply solely to the funds made available by the pending
bill; thus, an amendment providing that ``none of the funds herein
or elsewhere made available'' shall be used for a certain purpose
was held to be legislation and not a limitation.
On June 21, 1935,(5) the Committee of the Whole was
considering H.R. 8554, a deficiency appropriation bill. At one point
the Clerk read as follows:
---------------------------------------------------------------------------
5. 79 Cong. Rec. 9854, 74th Cong. 1st Sess.
---------------------------------------------------------------------------
Amendment offered by Mr. [John] Taber [of New York]: On page
48, line 16, strike out ``$34,675,192'' and insert in lieu thereof
``$23,675,192''; page 48, line 16, strike out the period, insert a
colon and the following: ``Provided, That none of the funds herein
or elsewhere made available to the Tennessee Valley Authority or
the Tennessee Valley fund shall be used for the construction of any
new dam or power lines until further action by Congress.''
Mr. [James P.] Buchanan [of Texas]: Mr. Chairman, I make the
point of order against the amendment that it is additional
legislation on an appropriation bill and changes existing law, for
it broadens the language of the pending bill by use of the words
``or elsewhere.''
The Chairman: (6) Does the gentleman from New York
desire to be heard on the point of order?
---------------------------------------------------------------------------
6. Franklin W. Hancock, Jr. (N.C.).
---------------------------------------------------------------------------
Mr. Taber: I desire to be heard briefly, if the Chair please.
The first portion of the amendment to the effect that none of the
funds shall be available for the construction of any new dam or
power lines until further action by Congress, is purely a
limitation and strictly within the Holman rule.
Mr. Buchanan: Mr. Chairman, the word ``elsewhere'' used in the
amendment constitutes additional legislation.
The Chairman: The Chair is ready to rule.
In the opinion of the Chair, while the amendment is in the form
of a limitation, yet the words ``or elsewhere'' contained in the
amendment apply to other appropriations, and is therefore
legislation; and for this reason the point of order is sustained.
Trade With Cuba; Restriction on Authorization, Not Appropriation
Sec. 27.13 Language in a general appropriation bill prohibiting aid
under the Foreign Assistance Act of 1961 to any country which
furnishes or permits ships under its registry to carry certain
strategic materials to Cuba was ruled out as legislation, since the
provision was a permanent restriction on the authorization rather
than upon the funds carried in the pending bill.
On June 4, 1970,(7) during consideration in the
Committee of the
[[Page 5704]]
Whole of the foreign assistance appropriation bill (H.R. 17867), a
point of order was raised against the following provision:
---------------------------------------------------------------------------
7. 116 Cong. Rec. 18403, 91st Cong. 2d Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
Sec. 107. (a) No assistance shall be furnished under the
Foreign Assistance Act of 1961, as amended, to any country
which sells, furnishes, or permits any ships under its registry
to carry to Cuba, so long as it is governed by the Castro
regime, in addition to those items contained on the list
maintained by the Administrator pursuant to title I of the
Mutual Defense Assistance Control Act of 1951, as amended, any
arms, ammunition, implements of war, atomic energy materials,
or any other articles, materials or supplies of primary
strategic significance used in the production of arms,
ammunition, and implements of war or of strategic significance
to the conduct of war, including petroleum products.
Mr. [Peter H. B.] Frelinghuysen [of New Jersey]: Mr. Chairman,
I make a point of order against section 107(a) on the ground that
it is legislation in an appropriations bill. . . . Mr. Chairman,
section 620 of the Foreign Assistance Act contains similar
restrictions, but they are much more detailed, specific, and
restricted than those contained in the provision which I am seeking
to strike from the appropriation bill.
The Chairman: (8) Does the gentleman from Louisiana
care to be heard?
---------------------------------------------------------------------------
8. Hale Boggs (La.).
---------------------------------------------------------------------------
Mr. [Otto E.] Passman [of Louisiana]: Mr. Chairman, your
committee felt that the language contained a very definite
limitation. The language itself states--
No assistance shall be furnished under the Foreign
Assistance Act of 1961, as amended, to any country which sells,
furnishes, or permits any ships under its registry to carry to
Cuba--
That provision has stood up over the years as being a
limitation. We feel that it is, and we ask the Chair for a ruling.
The Chairman: The Chair is ready to rule. As the gentleman from
New Jersey has pointed out, the language is similar but it is not
identical with the provisions of section 620 of the Foreign
Assistance Act as amended. In addition, it relates to provisions
other than those contained in this bill, and the Chair sustains the
point of order.
Ratios of U.S. Contribution to International Organizations to Total
Sec. 27.14 To a provision in a general appropriation bill, an amendment
providing that in no case shall the United States contribution to
any international organization exceed one-third of the estimated
total annual cost was held to change existing law and, therefore,
to be legislation on an appropriation bill.
On July 25, 1951,(9) during consideration in the
Committee of the Whole of a general appropriation bill (H.R. 4740), a
point of order
[[Page 5705]]
was raised and sustained against the following amendment:
---------------------------------------------------------------------------
9. 97 Cong. Rec. 8881, 8885, 82d Cong. 1st Sess.
---------------------------------------------------------------------------
Mr. [John Bell] Williams of Mississippi: Mr. Chairman, I offer
an amendment which is at the desk.
The Clerk read as follows:
Amendment offered by Mr. Williams of Mississippi: Page 6,
line 6, after the period add a new proviso to read: ``Provided
further, That in no case shall the United States contribution
to any international organization exceed one-third of the
estimated total annual cost.''
Mr. [John J.] Rooney [of New York]: Mr. Chairman, I am
constrained to insist upon the point of order that this is
legislation on an appropriation bill. We already have basic
legislation setting a ceiling on these contributions to
international organizations.
The Chairman: (10) Does the gentleman from
Mississippi desire to be heard on the point of order?
---------------------------------------------------------------------------
10. Jere Cooper (Tenn.).
---------------------------------------------------------------------------
Mr. Williams of Mississippi: Mr. Chairman, I have nothing to
say except that I insist it is a limitation of appropriations. The
amendment speaks for itself.
The Chairman: The amendment certainly goes far beyond being a
limitation.
The gentleman from Mississippi has offered an amendment; the
gentleman from New York has made a point of order against the
amendment on the ground that it is legislation on an appropriation
bill. The Chair invites attention to the fact that the amendment
provides for changes in existing law with respect to international
organizations and, of course, is legislation and not in order on an
appropriation bill.
The Chair sustains the point of order.(11)
---------------------------------------------------------------------------
11. The ruling would also be justified on grounds that the language at
issue was not limited to funds in the bill.
---------------------------------------------------------------------------
Funds From Any Other Source
Sec. 27.15 To a paragraph of a general appropriation bill, an amendment
providing that no additional funds from ``any other source'' shall
be expended for these purposes was held to go beyond the scope of
the bill, not germane to it, and legislation on an appropriation
bill.
On Apr. 24, 1951,(12) during consideration in the
Committee of the Whole of the Department of the Interior appropriation
bill (H.R. 3790), a point of order was raised against the following
amendment:
---------------------------------------------------------------------------
12. 97 Cong. Rec. 4300, 4301, 82d Cong. 1st Sess.
---------------------------------------------------------------------------
Mr. [Boyd] Tackett [of Arkansas]: Mr. Chairman, I offer an
amendment.
The Clerk read as follows:
Amendment offered by Mr. Tackett: Page 4, line 3, after the
word ``granted'', strike out the period, insert a semicolon and
the following: ``And no additional funds from any other source
shall be expended for these purposes.''
Mr. [Henry M.] Jackson of Washington: Mr. Chairman, I make a
point of order against the amendment offered by the gentleman from
Arkansas
[[Page 5706]]
(Mr. Tackett) on the ground the amendment is not germane and that
it is legislation on an appropriation bill. I make the further
point of order, Mr. Chairman, that it goes beyond the scope of the
bill as presented at this time. . . .
The Chairman: (13) The Chair is prepared to rule.
---------------------------------------------------------------------------
13. Wilbur D. Mills (Ark.).
---------------------------------------------------------------------------
The gentleman from Arkansas [Mr. Tackett] offers an amendment
to line 3, page 4, of the bill. The provision of the bill sought to
be amended has to do with construction by the Southwestern Power
Administration. The bill before the House provides an appropriation
of a specific amount of money for this purpose. The amendment
offered by the gentleman from Arkansas [Mr. Tackett] has reference
to funds from sources other than those contained in the bill before
the committee; therefore it goes beyond the scope and the purposes
of the bill presently before the committee.
The gentleman from Washington [Mr. Jackson] makes a point of
order against the amendment. The Chair sustains the point of order.
Limitation on Any Appropriation for Department
Sec. 27.16 To be in order, a limitation must relate to the particular
appropriation to which the words of limitation apply, and may not
be applicable to funds not covered by the pending bill; thus, a
provision in a general appropriation bill in the form of a
limitation providing that no part of ``any appropriation'' for a
department shall be expended for a specific purpose was held to be
legislation since not confined solely to funds in the bill.
On Feb. 18, 1938,(14) the Committee of the Whole was
considering H.R. 9544, a State, Justice, Commerce, and Labor
Departments appropriation. At one point the Clerk read as follows:
---------------------------------------------------------------------------
14. 83 Cong. Rec. 2172-74, 75th Cong. 3d Sess.
---------------------------------------------------------------------------
No part of any appropriation for the Immigration and
Naturalization Service shall be expended for any expense incident
to any procedure by suggestion or otherwise, for the admission to
any foreign country of any alien unlawfully in the United States
for the purpose of endeavoring to secure a visa for readmission to
the United States, or for the salary of any employee charged with
any duty in connection with the readmission to the United States of
any such alien without visa. . . .
Mr. [Samuel] Dickstein [of New York]: Mr. Chairman, I make the
point of order that the language appearing on page 105 in lines 1
to 9 is legislation on an appropriation bill, which changes
statutory law and creates new regulations without properly being
before any committee or properly being passed upon by the Congress.
. . .
Mr. [John W.] McCormack [of Massachusetts]: . . . There is
precedent to
[[Page 5707]]
the effect that a limitation must not give affirmative direction,
and must not affect the discretion of an official of the executive
branch of the Government; that the limitation must relate to the
particular appropriation with reference to which the words of
limitation apply.
The burden of proof is on the Committee on Appropriations to
show that this is a limitation upon existing law. If any part of
the limitation does not apply to existing law, although the greater
part of the limitation might apply, then the point of order should
be sustained. . . .
The Chairman: (15) The Chair is ready to rule. . . .
---------------------------------------------------------------------------
15. Frank H. Buck (Calif.).
---------------------------------------------------------------------------
. . . [T]he Chair sustains the point of order on the ground the
Chair has just suggested, that the use of the words ``any
appropriation'' in the bill makes this legislation on an
appropriation bill. The Chair, therefore, sustains the point of
order against the entire paragraph.
No Appropriation After Date of Enactment
Sec. 27.17 A limitation stating that no part of any appropriation shall
be obligated for printing the Yearbook of Agriculture for 1942 was
held to be legislation and not in order on an appropriation bill.
On Mar. 18, 1942,(16) the Committee of the Whole was
considering H.R. 6802, a legislative branch appropriation bill. The
Clerk read as follows:
---------------------------------------------------------------------------
16. 88 Cong. Rec. 2676, 2677, 77th Cong. 2d Sess.
---------------------------------------------------------------------------
. . . Provided further, That notwithstanding the provisions of
section 73 of the act of January 12, 1895 (44 U.S.C. 241), no part
of the foregoing sum of $3,985,000 shall be used for printing and
binding part 2 of the annual report of the Secretary of Agriculture
(known as the Yearbook of Agriculture) and no part of any
appropriation shall be obligated after the date of the enactment of
this act for printing the Yearbook of Agriculture for 1942. . . .
Mr. [Malcolm C.] Tarver [of Georgia]: Mr. Chairman, I make a
point of order against the language contained in the proviso
beginning on line 21, page 44, and ending with line 3 on page 45,
and particularly to that portion of the proviso which reads as
follows:
And no part of any appropriation shall be obligated after
the date of the enactment of this act for printing the Yearbook
of Agriculture for 1942. . . .
The Chairman: (17) Does the gentleman from Kentucky
desire to be heard on the point of order?
---------------------------------------------------------------------------
17. William R. Thom (Ohio).
---------------------------------------------------------------------------
Mr. [Emmet] O'Neal [of Kentucky]: Mr. Chairman, we are
perfectly willing to concede the point of order to the second part
of the proviso. If the Chair holds that the entire proviso must be
stricken, then I will offer an amendment to take care of the
situation.
The Chairman: The Chair sustains the point of order on the
ground that if part of a proviso is faulty the entire proviso
falls.
[[Page 5708]]
The point of order is sustained.
Limitation on ``Any'' Appropriation
Sec. 27.18 Language in an appropriation bill placing a limitation on
funds not carried in the bill was held to be legislation: language
in an appropriation bill providing that no part of ``any
appropriation'' shall be used for a specified purpose was held to
apply to funds not carried in the bill and therefore not in order.
On Mar. 30, 1955,(18) during consideration in the
Committee of the Whole of the independent offices appropriation bill
(H.R. 5240), the following point of order was raised:
---------------------------------------------------------------------------
18. 101 Cong. Rec. 4077, 84th Cong. 1st Sess.
---------------------------------------------------------------------------
Mr. [Olin E.] Teague of Texas: Mr. Chairman, I make the point
of order that it is legislation on an appropriation bill against
the following language appearing on page 28, lines 15 through 19:
Provided further, That no part of any appropriation shall
be used to pay educational institutions for reports and
certifications of attendance at such institutions an allowance
at a rate in excess of $1 per month for each eligible veteran
enrolled in and attending such institution.
Mr. [John] Phillips [of California]: Mr. Chairman, I do not
believe that language is subject to a point of order. It is a
limitation. It permits the spending of $1 instead of the previous
amount of $1.50. This has been contemplated by the Veterans'
Administration in setting up its budget. This has been in for 2
years.
The Chairman: (19) The Chair is ready to rule.
---------------------------------------------------------------------------
19. Albert Rains (Ala.).
---------------------------------------------------------------------------
The Chair calls the attention of the gentleman to the fact that
in line 15 the words ``no part of any appropriation'' are used.
That goes beyond this appropriation bill. This is legislation on an
appropriation bill, and the Chair sustains the point of order.
No Fund in This or Any Other Act
Sec. 27.19 In an appropriation bill a provision in the form of a
limitation that no funds in this or any other act shall be
available for payment of grants for development of a project for
predominantly residential uses unless incidental uses are
restricted to those normally essential for residential uses was
conceded to be legislation.
On Mar. 30, 1954,(20) the Committee of the Whole was
considering H.R. 8583, an independent offices appropriation bill. The
Clerk read as follows:
---------------------------------------------------------------------------
20. 100 Cong. Rec. 4108, 4109, 83d Cong. 2d Sess.
---------------------------------------------------------------------------
Capital grants for slum clearance and urban redevelopment: For
an addi
[[Page 5709]]
tional amount for payment of capital grants as authorized by title
I of the Housing Act of 1949, as amended (42 U.S.C 1453, 1456),
$39,000,000, to remain available until expended: Provided, That no
funds in this or any other act shall be available for payment of
capital grants under any contract involving the development or
redevelopment of a project for predominantly residential uses
unless incidental uses are restricted to those normally essential
for residential uses. . . .
Mr. [Jacob K.] Javits [of New York]: Mr. Chairman, I make a
point of order against the proviso appearing on page 28, lines 13
to 18, on the ground it is legislation on an appropriation bill.
The Chairman: (1) Does the gentleman from California
desire to be heard on the point of order?
---------------------------------------------------------------------------
1. Louis E. Graham (Pa.).
---------------------------------------------------------------------------
Mr. [John] Phillips [of California]: No, Mr. Chairman. I think
we are compelled to concede the point of order and I submit an
amendment to replace it.
Sec. 27.20 Language in an appropriation bill in the form of a
limitation providing no part of the appropriation contained in this
or any other act shall be used for a certain purpose is legislation
and not in order.
On Feb. 8, 1939,(2) the Committee of the Whole was
considering H.R. 3743, an independent offices appropriation. The Clerk
read as follows:
---------------------------------------------------------------------------
2. 84 Cong. Rec. 1263, 76th Cong. 1st Sess.
---------------------------------------------------------------------------
Sec. 6. No part of any appropriation contained in this or any
other act for the fiscal year ending June 30, 1940, shall be
available for the payment of enlistment allowance to enlisted men
for reenlistment within a period of 3 months from date of discharge
as to reenlistments made during the fiscal year ending June 30,
1940, notwithstanding the applicable provisions of sections 9 and
10 of the act entitled ``An act to readjust the pay and allowances
of the commissioned and enlisted personnel of the Army, Navy,
Marine Corps, Coast Guard, Coast and Geodetic Survey, and Public
Health Service,'' approved June 10, 1922 (37 U.S.C. 13, 16).
Mr. [Edouard V.M.] Izac [of California]: Mr. Chairman, I make
a point of order against the inclusion of this section in the bill.
Mr. [Clifton A.] Woodrum of Virginia: I concede the point of
order, Mr. Chairman.
The Chairman: (3) The point of order is well taken.
. . . The Chair sustains the point of order.
---------------------------------------------------------------------------
3. Fritz G. Lanham (Tex.).
---------------------------------------------------------------------------
Previous Appropriations
Sec. 27.21 A limitation, to be in order, may not apply to money already
appropriated: an amendment in the guise of a limitation providing
that ``No appropriation heretofore made'' shall be used for a
certain purpose was held to
[[Page 5710]]
embody legislation and therefore not in order on a general
appropriation bill.
On Jan. 24, 1936,(4) during consideration in the
Committee of the Whole of a supplemental appropriation bill (H.R
10464), a point of order was raised against the following amendment:
---------------------------------------------------------------------------
4. 80 Cong. Rec. 989, 74th Cong. 2d Sess
---------------------------------------------------------------------------
Mr. [Henry] Ellenbogen [of Pennsylvania]: Mr. Chairman, I offer
the following substitute, which I send to the desk and ask to have
read.
The Clerk read as follows:
Substitute amendment offered by Mr. Ellenbogen: Page 16,
line 6, strike out all of lines 6 to 12, inclusive, and insert
in lieu thereof the following: ``No appropriation heretofore
made or contained in this bill shall be used for the
enforcement of the provisions of the Potato Act of 1935,
approved August 24, 1935.''
Mr. [Clifton A.] Woodrum [of Virginia]: Mr. Chairman, I make
the point of order that that is legislation on an appropriation
bill and is not germane to the amendment to which it is offered. It
undertakes to put a limitation on money heretofore appropriated and
not covered in this bill.
Mr. Ellenbogen: The appropriation contained on page 16 of the
deficiency appropriation bill is for the purpose of enforcing the
provisions of the Potato Act. Therefore, any amendment that seeks
to limit or prevent the Department from enforcing that act is a
proper amendment.
The Chairman: (5) The Chair is prepared to rule. The
amendment offered by the gentleman from Pennsylvania, in the
opinion of the Chair, goes further than indicated by the
gentleman's statement in support of his amendment. The amendment,
in the opinion of the Chair, very clearly embraces legislation
which is not in order on an appropriation bill. The Chair,
therefore, sustains the point of order.
---------------------------------------------------------------------------
5. Jere Cooper (Tenn.).
---------------------------------------------------------------------------
Improvement of Capitol Limitation on ``Funds Provided''
Sec. 27.22 To an appropriation bill providing for necessary
expenditures for the Capitol Building, including minor
improvements, an amendment to prohibit use of funds appropriated in
a previous appropriation act for extension of the East Front of the
Capitol, and an amendment providing that none of the funds provided
shall be used for prosecuting the project of lifting out the front
of the Capitol, were held to be legislation since not explicitly
confined to funds provided in the bill.
On May 21, 1957,(6) The Committee of the Whole was
considering H.R. 7599, a legislative branch appropriation bill. The
Clerk read as follows:
---------------------------------------------------------------------------
6. 103 Cong. Rec. 7326, 7327, 85th Cong. 1st Sess
---------------------------------------------------------------------------
[[Page 5711]]
Capitol Buildings and Grounds
Capitol Buildings: For necessary expenditures for the Capitol
Building and electrical substations of the Senate and House Office
Buildings, under the jurisdiction of the Architect of the Capitol,
including minor improvements, maintenance, repair, equipment,
supplies, material, fuel, oil, waste, and appurtenances;
furnishings and office equipment; special and protective clothing
for workmen; uniforms or allowances therefor as authorized by the
act of September 1, 1954, as amended (5 U.S.C. 2131); personal and
other services; cleaning and repairing works of art, without regard
to section 3709 of the Revised Statutes, as amended; purchase or
exchange, maintenance and operation of passenger motor vehicle; not
to exceed $300 for the purchase of necessary reference books and
periodicals; not to exceed $500 for expenses of attendance, when
specifically authorized by the Architect of the Capitol, at
meetings or conventions in connection with subjects related to work
under the Architect of the Capitol; $897,100. . . .
Amendment offered by Mr. [Edgar W.] Hiestand [of California]:
On page 14, immediately after line 2, insert the following:
``Provided, That no funds provided in this section and no funds
heretofore appropriated shall be expended to carry out the
extension, reconstruction and replacement of the central portion of
the United States Capitol authorized by the paragraph of the
legislative appropriation act, 1956, which is under the heading
`Capitol Buildings and Grounds' and which begins with the words
`Extension of the Capitol'.''
Mr. [John J.] Rooney [of New York]: Mr. Chairman, I make a
point of order against the amendment on the ground that it is not
germane to this bill. It refers to funds which are not included in
this bill, and further it is legislation upon an appropriation
bill. . . .
The Chairman: (7) The gentleman from New York [Mr.
Rooney] makes the point of order that the amendment is not in
order. The amendment very definitely relates to an appropriation
heretofore made. Therefore, the Chair is of the opinion that the
amendment is legislation and therefore subject to the point of
order. The Chair sustains the point of order
---------------------------------------------------------------------------
7. Francis E. Walter (Pa.).
---------------------------------------------------------------------------
Mr. Hiestand: Mr. Chairman, I offer an amendment which is at
the Clerk's desk
The Clerk read as follows:
Amendment offered by Mr. Hiestand: On page 14, line 2,
after the period, insert ``None of the funds provided shall be
used for prosecuting the project of lifting out the front of
the Capitol.'' (8) . . .
---------------------------------------------------------------------------
8. The Chair apparently construed this language to apply arguably to
funds previously appropriated, as well as funds in the present
bill. If the language had referred more explicitly only to
funds in the bill it might have been allowed as a limitation.
---------------------------------------------------------------------------
Mr. Rooney: Mr. Chairman, I renew the point of order against
the amendment, that it is legislation on an appropriation bill.
The Chairman: The Chair is of the opinion that the same
objection applies to this amendment as applied to the last
amendment, and the Chair therefore sustains the point of order.
[[Page 5712]]
Mr. Hiestand: Mr. Chairman, may I speak to that point?
May I suggest that the amendment just submitted deals with
$897,100, which has just been read this morning? I submit it is in
order because it could not have been applied to any other fund. The
first amendment did apply to previous appropriations.
The Chairman: But the Chair would call attention to the fact
that there is nothing in this paragraph, as the Chair understands
it, that relates to that particular project or work.
Mr. [John] Taber [of New York]: Mr. Chairman, if the Chair will
hear me just a moment.
The Chairman: The gentleman from New York is recognized.
Mr. Taber: Beginning on line 8, page 13, it reads:
For necessary expenditures for the Capitol Building and
electrical substations of the Senate and House Office
Buildings, under the jurisdiction of the Architect of the
Capitol.
That means that money is available for all sorts of activities
of the Architect of the Capitol, relating to the entire group of
buildings.
The Chairman: Of course, the gentleman conveniently stops at
the comma on line 11 and did not read up to the next comma,
``including minor improvements.''
By no stretch of the imagination could this be considered a
minor improvement.
The Chair sustains the point of order.
Termination of Existing Revolving Fund
Sec. 27.23 Language in an appropriation bill amounting to a limitation
and providing that after June 30, 1959, unobligated funds in the
revolving fund, Defense Production Act, be covered into the
Treasury was held to be legislation and not in order
On Mar. 31, 1958,(9) the Committee of the Whole was
considering H.R. 10589, a bill making appropriations for the Executive
Office of the President, among other things. The Clerk read as follows:
---------------------------------------------------------------------------
9. 104 Cong. Rec. 5817, 85th Cong. 2d Sess.
---------------------------------------------------------------------------
Reduction in Balances
Revolving fund, Defense Production Act: The unobligated
balances available in the fund as of June 30, 1959, shall be
withdrawn and covered into the Treasury as of the close of business
June 30, 1959.
Mr. [Paul] Brown of Georgia: Mr. Chairman, I make a point of
order against the section beginning on line 9, page 5, and ending
in line 13, page 5, as legislation on an appropriation bill.
The Chairman: (10) Does the gentleman from Alabama
desire to be heard?
---------------------------------------------------------------------------
10. Richard Bolling (Mo).
---------------------------------------------------------------------------
Mr. [George W.] Andrews [of Alabama]: Mr. Chairman, we concede
the point of order.
The Chairman: The point of order is conceded.
The Chair sustains the point of order.
[[Page 5713]]
Rescission; Disaster Relief
Sec. 27.24 To an appropriation bill, an amendment providing a
rescission of funds for ``Disaster Relief'' appropriated in other
acts was held to be not germane and to be legislation on an
appropriation bill.
On Mar. 19, 1952,(11) during consideration in the
Committee of the Whole of the independent offices appropriation bill
(H.R. 7072), a point of order was raised against the following
amendment:
---------------------------------------------------------------------------
11. 98 Cong. Rec. 2543, 82d Cong. 2d Sess.
---------------------------------------------------------------------------
Mr. [Tom] Pickett [of Texas]: Mr. Chairman, I offer an
amendment.
The Clerk read as follows:
Amendment offered by Mr. Pickett: On page 3, after line 14,
insert a new heading and the following language:
Disaster Relief
``The unobligated balances at the end of June 30, 1952, of
appropriations heretofore made for Disaster Relief under the
act of September 30, 1950 (Public Law 875); the Independent
Offices Appropriation Act of 1952; act of July 18, 1951 (Public
Law 80); and the act of October 24, 1951 (Public Law 202),
shall to the extent that they exceed in the aggregate
$5,000,000, not be available for obligation after June 30,
1952, and shall be recovered to the Treasury as miscellaneous
receipts.''
Mr. [Clarence] Cannon [of Missouri]: Mr. Chairman, I make the
point of order, first, that the amendment is not germane to the
bill. It has no relation to any item in the bill.
Second, it is legislation on an appropriation bill.
On both counts, or on either count, it is subject to a point of
order.
The Chairman: (12) Does the gentleman from Texas
[Mr. Pickett] desire to be heard on the point of order?
---------------------------------------------------------------------------
12. Wilbur D. Mills (Ark.).
---------------------------------------------------------------------------
Mr. Pickett: Mr. Chairman, it occurs to me that this is a
limitation of an appropriation. Its effect certainly is to recover
into the Treasury moneys which are just floating around, and
apparently serving no purpose at this time. It never occurred to
me, of course, notwithstanding whatever the rule might be, that we
would avoid trying to save money here just by raising points of
order. It seems to me that we might save a little money by even
legislating some time. I hope the point of order will be overruled.
The Chairman: The Chair is ready to rule. The gentleman from
Texas [Mr. Pickett] has offered an amendment. The gentleman from
Missouri [Mr. Cannon] makes a point of order against the amendment
on the ground it is not germane to the bill before the Committee
and that it is legislation on an appropriation bill. The Chair has
had an opportunity to read the amendment proposed by the gentleman
from Texas. The amendment does not, as the Chair understands, apply
to funds contained in the pending bill H.R. 7072, but has reference
to funds which have been made available by the Congress in other
legislation. Therefore, the amendment is not germane and is clearly
legislation on an appropriation
[[Page 5714]]
bill. The Chair is constrained to sustain the point of order.
Words of Permanency; Funds ``Hereafter'' Appropriated
Sec. 27.25 An amendment to an appropriation bill in the form of a
limitation but containing the word ``hereafter'' was held to be
legislation and not in order.
On Jan. 31, 1936,(13) the Committee of the Whole was
considering H.R. 10630, an Interior Department appropriation. At one
point the Clerk read as follows:
---------------------------------------------------------------------------
13. 80 Cong. Rec. 1300, 1305, 1306, 74th Cong. 2d Sess.
---------------------------------------------------------------------------
For reimbursable loans to Indians for the payment of tuition
and other expenses in recognized vocational and trade schools,
including colleges and universities offering recognized vocational,
trade, and professional courses, in accordance with the provision
of the act of June 18, 1934 (48 Stat., p. 986), the unexpended
balance of the appropriation for the fiscal year 1936 is continued
available until June 30, 1937: Provided, That no more than $50,000
of such unexpended balance shall be available for loans to Indian
students pursuing liberal-arts courses in high schools and
colleges. . . .
Amendment offered by Mr. [Byron N.] Scott [of California]: On
page 48, line 13, after the word ``Interior'', add: ``Provided,
That hereafter no part of any appropriation for these Indian
schools shall be available for the salary of any person teaching or
advocating the legislative program of the American Liberty
League.''
Mr. [Edward T.] Taylor of Colorado: Mr. Chairman, I make a
point of order against the amendment. It is legislation on an
appropriation bill. . . .
The Chairman: (14) The Chair is ready to rule. The
word ``hereafter'' in the amendment makes the provision permanent
legislation. Permanent legislation on an appropriation bill would
not be in order. The language of the amendment here offered not
only applies to the appropriations of this bill but it would apply
to subsequent appropriations. Therefore, the amendment contains
legislation; and the point of order is sustained.
---------------------------------------------------------------------------
14. Robert L. Doughton (N.C.).
---------------------------------------------------------------------------
Change of Prior Limitation
Sec. 27.26 An amendment to an appropriation bill seeking to change a
limitation on a previous appropriation bill was held to be
legislation and not in order.
On Dec. 6, 1944,(15) during consideration in the
Committee of the Whole of a supplemental appropriation bill (H.R 5587),
a point of order was raised against the following amendment:
---------------------------------------------------------------------------
15. 90 Cong. Rec. 8940, 8941, 78th Cong. 2d Sess.
---------------------------------------------------------------------------
Amendment offered by Mr. [Malcolm C.] Tarver [of Georgia]: On
page 19, line 3, insert a new paragraph, as follows:
[[Page 5715]]
``Conservation and Use of Agricultural Land Resources
``The limitation on expenditures under the 1944 program of
soil-building practices and soil- and water-conservation practices
established in the fourth proviso clause of appropriation
`Conservation and use of agricultural land resources,' in the
Department of Agriculture Appropriation Act, 1944, is hereby
increased from $300,000,000 to $313,000,000 (exclusive of the
$12,500,000 provided in the Department of Agriculture Appropriation
Act, 1945, for additional seed payments).''
Mr. [John] Taber [of New York]: Mr. Chairman, I make the point
of order that this is legislation on an appropriation bill. The
change of a limitation is a change of existing law, and it has been
so held repeatedly.
Mr. Tarver: Mr. Chairman, the Soil Conservation and Domestic
Allotment Act authorizes the promulgation of programs to cost not
in excess of $500,000,000 annually. In the Agricultural
Appropriation Act of 1944 the Congress undertook to impose a
limitation of $300,000,000 upon the administrative authorities in
the promulgation of the over-all program for the calendar year
1944, which program included not only payments and grants for soil-
conservation and water-conservation practices, but the furnishing
in advance of seeds, limes, fertilizers, trees and other
agricultural materials to be used in soil-conservation work and to
be charged against the benefits accruing to the farmers in
subsequent crop years.
I think that a correct understanding of the amendment which I
have proposed involves reference to the Budget document in which it
was submitted to the Congress, House Document 793, Seventy-eighth
Congress, second session, in which this identical language was
recommended by the Budget, and in the explanation of the language
it is clearly pointed out that it does not involve the expenditure
of any additional moneys. In other words, this amendment, if
adopted, does not appropriate or make available to the
administrative authorities one single dollar of moneys which are
not already available to them but it simply authorizes the use by
them of moneys which have been allocated to the seed, fertilizer,
lime, and tree program for the discharge of liabilities incurred
under the program for the payments and grants for soil and water-
conservation practices. It is, therefore, in effect a reallocation
of the funds which have already been appropriated by Congress.
I may say that that original allocation of funds was not made
by the Congress in the enactment of the Agricultural Appropriation
Act of 1944, but was made by departmental authorities without
mandatory instructions from the Congress to make such allocations,
although it probably was a matter within their administrative
discretion. So I insist that the Congress by the imposition of the
limitation in the Agricultural Appropriation Act of 1944 did not so
tie its hands as to make it impossible for the same Congress or for
a subsequent Congress to appropriate funds or to review and revise
the allocation of funds already appropriated for the purposes
outlined in the Soil Conservation and Domestic Allotment Act, so
long as it does not exceed the limitation for maximum appropriation
provided in that act, which, as I have pointed out, is
$500,000,000.
[[Page 5716]]
I respectfully insist, Mr. Chairman, that the amendment is in
order and the point of order should be overruled.
The Chairman: (16) Does the gentleman from New York
insist on his point of order?
---------------------------------------------------------------------------
16. Herbert C. Bonner (N.C.).
---------------------------------------------------------------------------
Mr. Taber: I do, Mr. Chairman.
The Chairman: The point of order raised by the gentleman from
New York is correct, and the Chair sustains the point of order.
Acquisition of Property by Gift ``Hereafter'' Contingent Upon Prior
Appropriation for Maintenance.
Sec. 27.27 Language in an appropriation bill providing that ``hereafter
the authority of the Secretary of the Interior . . . to acquire by
gift on behalf of the United States any historic site, building,
object, and antiquity of national significance, shall not be
effective until an appropriation has been made for the operation
and maintenance thereof subsequently to such proposed
acquisition,'' was held to be a change in law and legislation on an
appropriation bill.
On Mar. 20, 1939,(17) during consideration in the
Committee of the Whole of the Interior Department appropriation bill
(H.R. 4852), a point of order was sustained against the following
provision:
---------------------------------------------------------------------------
17. 84 Cong. Rec. 3000, 76th Cong. 1st Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
Historic sites and buildings: For carrying out the
provisions of the act entitled ``An act to provide for the
preservation of historic American sites, buildings, objects,
and antiquities of national significance, and for other
purposes,'' approved August 21, 1935 (49 Stat. 666), including
personal services in the District of Columbia, $24,000:
Provided, That hereafter the authority of the Secretary of the
Interior contained in such act, to acquire by gift on behalf of
the United States any historic site, building, object, and
antiquity of national significance, shall not be effective
until an appropriation has been made for the operation and
maintenance thereof subsequently to such proposed acquisition.
Mr. [Schuyler Otis] Bland [of Virginia]: Mr. Chairman, I desire
to make a point of order against the proviso, commencing with the
word ``Provided,'' line 17, page 119, down to the end of the
paragraph, in that it is legislation on an appropriation bill.
According to the report, it expressly changes the language of the
act.
The Chairman: (18) Does the gentleman from Oklahoma
[Mr. Johnson] desire to be heard?
---------------------------------------------------------------------------
18. Frank H. Buck (Calif.).
---------------------------------------------------------------------------
Mr. [Jed] Johnson: Mr. Chairman, I concede the point of order.
The Chairman: The point of order is sustained.
[[Page 5717]]
Restriction on ``Contribution to U.N.''
Sec. 27.28 A provision in a general appropriation bill directing the
President to ``assure that no contribution to the United Nations
Development Program authorized by the Foreign Assistance Act of
1961 . . . shall be used for projects for economic or technical
assistance to the Government of Cuba, so long as Cuba is governed
by the Castro regime,'' was ruled out as legislation [constituting
a directive to the President and not confined to the funds carried
in the bill].
On June 4, 1970,(19) during consideration in the
Committee of the Whole of the foreign assistance appropriation bill
(H.R. 17867), a point of order was raised against the following
provision:
---------------------------------------------------------------------------
19. 116 Cong. Rec. 18395, 18396, 91st Cong. 2d Sess.
---------------------------------------------------------------------------
Technical assistance: For necessary expenses as authorized by
law $310,000,000, distributed as follows:
(1) World-wide, $151,000,000 (section 212);
(2) Alliance for Progress, $75,000,000 (section 252(a)); and
(3) Multilateral organizations, $85,000,000 (section 302(a)),
of which not less than $13,000,000 shall be available only for the
United Nations Children's Fund: Provided, That no part of this
appropriation shall be used to initiate any project or activity
which has not been justified to the Congress, except projects or
activities relating to the reduction of population growth; Provided
further, That the President shall seek to assure that no
contribution to the United Nations Development Program authorized
by the Foreign Assistance Act of 1961, as amended, shall be used
for projects for economic or technical assistance to the Government
of Cuba, so long as Cuba is governed by the Castro regime. . . .
Mr. [Clement J.] Zablocki [of Wisconsin]: Mr. Chairman, a point
of order.
The Chairman: (20) . . . The Chair will hear the
gentleman from Wisconsin on his point of order.
---------------------------------------------------------------------------
20. Hale Boggs (La.).
---------------------------------------------------------------------------
Mr. Zablocki: Mr. Chairman, I make the point of order that the
entire proviso beginning on line 20 and ending on line 25 of page 2
is legislation in an appropriation. I am for its objectives, but in
effect it simply says that the President should try to enforce
existing law. The provisions in existing law, section 620 of the
Foreign Assistance Act are stronger and there is no sense in this
useless repetition in an appropriation
Mr. Chairman, I make the point of order that this is
legislation on an appropriation bill.
The Chairman: Does the gentleman from Louisiana wish to be
heard on the point of order?
Mr. [Otto E.] Passman [of Louisiana]: Yes, sir, Mr. Chairman
The
[[Page 5718]]
proviso was added by the Committee on Appropriations in the foreign
assistance appropriation bill for fiscal year 1965 in order to
insure that no U.S. contribution to the UNDP would be used to give
any type of economical or technical assistance to Cuba as long as
Cuba is governed by the Castro regime.
I would like to interpret this as a limitation on an
appropriation bill and ask for a ruling.
The Chairman: The language in question is as follows: Line 20,
page 2:
Provided further, That the President shall seek to assure.
. . .
And so forth.
That is obviously a directive to the President of the United
States, it is not limited in application to the funds appropriated
in this bill or any section thereof, and the Chair sustains the
point of order.
Restricting ``Amounts for Education Grants''
Sec. 27.29 In a paragraph of a general appropriation bill containing
funds for higher education assistance, language restricting the
availability of ``amounts for basic opportunity grants'' to full-
time students in the first three years of college was held not to
be confined to funds in the bill and was ruled out as legislation
affecting amounts appropriated under other acts.
On June 27, 1974,(1) during consideration in the
Committee of the Whole of the Departments of Labor and Health,
Education, and Welfare appropriation bill, the proceedings as indicated
above occurred as follows:
---------------------------------------------------------------------------
1. 120 Cong. Rec. 21670, 21671, 93d Cong. 2d Sess.
---------------------------------------------------------------------------
For carrying out, to the extent not otherwise provided, titles
I, III, IV, section 745 of title VII, and parts A, B, C, and D of
title IX, and section 1203 of the Higher Education Act . . .
Provided, That amounts for basic opportunity grants shall be
available only for full-time students at institutions of higher
education who are not enrolled as regular students (as defined by
the Commissioner of Education) at such institutions prior to April
1, 1973. . . .
Mrs. [Edith] Green of Oregon: Mr. Chairman, I make a point of
order against the language which occurs on page 18, beginning on
line 7 and continuing through line 11 as legislation on an
appropriation bill. The law at the present time, the general law
says that the basic opportunity grants should be available to all
students in freshmen, sophomore, junior, and senior years and
students in the 5th year, part-time students, and last year we had
restricted it to apply to freshmen and sophomores. This language
further changes the law by saying basic opportunity grants shall be
available only to freshmen, sophomores, and juniors, and therefore
it is legislation on an appropriation bill changing the intent of
the original law.
Mr. [Daniel J.] Flood [of Pennsylvania]: . . . I believe this
language in
[[Page 5719]]
question is clearly conditioned on the use of funds in the bill and
therefore not subject to a point of order.
It is a well-established principle and I quote:
The House in the Committee of the Whole has the right to
refuse to appropriate for any object either in whole or in part
even though the object is authorized by law.
Mr. Chairman, in this case we are very simply eliminating the
payments for these basic opportunity grants to students who are
enrolled at institutions of higher learning after April 1, 1973,
and excluding, expressly excluding students who were enrolled prior
to April 1, 1973. . . .
The Chairman: (2) . . . The gentleman from
Pennsylvania makes some interesting and indeed some valid points
with respect to what has been in the past and is uniformly accepted
as a limitation on an appropriation bill.
---------------------------------------------------------------------------
2. James C. Wright, Jr. (Tex.).
---------------------------------------------------------------------------
The Chair must observe, however, that there is one
distinguishing characteristic with regard to this proviso as it is
presently written which differentiates it from valid limitations.
The proviso as presently written does not specify that it is a
limitation upon amounts appropriated in this bill. This, indeed,
may have been the intention of those who drafted the bill, but the
proviso is not drafted negatively and the Chair observes that the
proviso as presently drafted would stipulate that amounts for basic
opportunity grants shall be made available only to certain
students.
If the Chair is correctly advised, the Chair believes that the
language, literally read, could subject this proviso to the
interpretation of being a limitation upon amounts previously
appropriated under other acts in that it does not stipulate that
its application would be intended specifically to funds provided in
this bill or in this paragraph.
For that reason, the Chair sustains the point of order of the
gentlewoman from Oregon.
Disapproval of Deferral
Sec. 27.30 A paragraph in a general appropriation bill providing
congressional disapproval of a deferral of budget authority
proposed by the President pursuant to the Impoundment Control Act
is legislation in violation of Rule XXI clause 2.
On July 29, 1982,(3) During consideration in the
Committee of the Whole of H.R. 6863 (supplemental appropriation bill),
a point of order was sustained against the following provision in the
bill:
---------------------------------------------------------------------------
3. 128 Cong. Rec. 18625, 97th Cong. 2d Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
The Congress disapproves $100,000 of the proposed deferral
D82-225 relating to the Department of Commerce, Bureau of the
Census, ``Periodic censuses and programs'' as set forth in the
message of February 5, 1982, which was transmitted to the
Congress by the President. This disapproval shall be effective
upon enactment into law of this bill and the amount of the
proposed deferral
[[Page 5720]]
disapproved herein shall be made available for obligation.
Mr. [Robert S.] Walker [of Pennsylvania]: Mr. Chairman, I raise
a point of order against this section of the bill. . . .
[I]n clause 2 of rule XXI, it states that legislation in an
appropriation bill is not appropriate. This is a disapproval of a
deferral, which is legislation in an appropriation bill, therefore,
I think, Mr. Chairman, it is subject to a point of order against it
under clause 2 of rule XXI. . . .
Mr. [Neal] Smith of Iowa: Mr. Chairman, I will point out that
there are three or four deferrals in here, and obviously, that is
true. We could report separate bills and take up the time of the
House, but all we are doing here is avoiding that. The committee is
in full agreement on both sides of the aisle. This is just avoiding
taking up the time of the House with a number of separate bills. So
there is no need for it. We just put that in here to do it in an
easier way.
Mr. Walker: . . . The point that this gentleman from
Pennsylvania is making is that they are inappropriate in a bill
which makes appropriations under the rules of the House, and I am
simply trying to sustain the rules.
The Chairman: (4) Does the gentleman from
Pennsylvania (Mr. Walker) insist on his point of order?
---------------------------------------------------------------------------
4. George E. Brown, Jr. (Calif.).
---------------------------------------------------------------------------
Mr. Walker: I insist on my point of order, Mr. Chairman.
The Chairman: The Chair sustains the point of order.
Parliamentarian's Note: While the Impoundment Control Act (Public
Law No. 93-344, title X) provided a procedure for privileged
consideration of resolutions of disapproval of Presidential deferrals
of budget authority, and while the Committee on Appropriations is an
appropriate committee for referral of such resolutions, such provisions
when included in general appropriation bills are nevertheless
legislation changing the procedure for congressional disapproval.
CHAPTER 26
Unauthorized Appropriations; Legislation on Appropriation Bills
C. PROVISIONS AS ``CHANGING EXISTING LAW,'' GENERALLY
Sec. 28. Provisions Affecting Funds Held in Trust
Diverting From Highway Trust Fund
Sec. 28.1 The appropriation for a new purpose not authorized by law of
funds held in trust in the Treasury for a different purpose, is
legislation, changing the nature of the trust fund and not in order
on an appropriation bill.
On May 28, 1959,(5) during consideration in the
Committee of the Whole of a general appropriation bill (H.R. 7349), a
point of order was raised against the following provision:
---------------------------------------------------------------------------
5. 105 Cong. Rec. 9351, 86th Cong. 1st Sess.
---------------------------------------------------------------------------
[[Page 5721]]
Forest Highways (Trust Fund) (Liquidation of Contract
Authorization)
For payment of obligations incurred in carrying out the
provisions of title 23, United States Code, section 204, pursuant
to contract authorization granted by title 23, United States Code,
section 203, to remain available until expended, $37,100,000, to be
derived from the ``Highway trust fund'', which sum is composed of
$33,350,000, the remainder of the amount authorized to be
appropriated for the fiscal year 1959, and $3,750,000, a part of
the amount authorized to be appropriated for the fiscal year 1960:
Provided, That the unexpended balances as of June 30, 1959, of
appropriations heretofore granted under the head ``Forest
highways'' or ``Forest highways (liquidation of contract
authorization)'' are rescinded and shall be credited to
miscellaneous receipts of the Treasury: Provided further, That this
appropriation shall be available for the rental, purchase,
construction, or alterations of buildings and sites necessary for
the storage and repair of equipment and supplies used for road
construction and maintenance, but the total cost of any such item
under this authorization shall not exceed $15,000.
Mr. [Wilbur D.] Mills [of Arkansas]: Mr. Chairman, a point of
order.
The Chairman: (6) The gentleman will state it.
---------------------------------------------------------------------------
6. Aime J. Forand (R.I.).
---------------------------------------------------------------------------
Mr. Mills: Mr. Chairman, I make the point of order against the
language in the bill beginning on line 22, page 12, and ending with
line 17, page 13, on the ground that the paragraph contains
language which proposes to change existing law and is therefore
legislation on an appropriation bill.
I direct the Chairman's attention to this particular language
on page 13, line 3: ``to be derived from the highway trust fund.''
There is no authorization for expenditure from the highway trust
fund for the purposes proposed in this paragraph.
The Chairman: Does the gentleman from Georgia desire to be
heard on the point of order?
Mr. [Prince H.] Preston [Jr., of Georgia]: Mr. Chairman, the
point of order is well taken. We concede the point of order.
The Chairman: The Chair sustains the point of order.
In a similar case, on May 20, 1958,(7) language in an
appropriation bill appropriating funds for the federal aid highway
trust fund for expenses of forest roads and trails, had been held to be
unauthorized and not in order. On that day, during consideration in the
Committee of the Whole of the commerce appropriation bill (H.R. 12540),
a point of order was raised against the following provision:
---------------------------------------------------------------------------
7. 104 Cong. Rec. 9065, 85th Cong. 2d Sess.
---------------------------------------------------------------------------
Forest highways (trust fund)
For expenses, not otherwise provided for, necessary for
carrying out the provisions of section 23 of the Federal Highway
Act of November 9, 1921, as amended (23 U.S.C. 23, 23a), to remain
[[Page 5722]]
available until expended, $30 million, to be derived from the
highway trust fund; which sum is composed of $22,250,000, the
remainder of the amount authorized to be appropriated for the
fiscal year 1958, and $7,750,000, a part of the amount authorized
to be appropriated for the fiscal year 1959: Provided, That this
appropriation shall be available for the rental, purchase,
construction, or alterations of buildings and sites necessary for
the storage and repair of equipment and supplies used for road
construction and maintenance, but the total cost of any such item
under this authorization shall not exceed $15,000.
Mr. [Robert E.] Jones [Jr.] of Alabama: Mr. Chairman, I make a
point of order against the language contained on line 16
immediately following the language ``$30 million to be derived from
the `highway trust fund' '' as being legislation on an
appropriation bill and therefore subject to a point of order.
The Chairman: (8) Does the gentleman from Georgia
desire to be heard on the point of order?
---------------------------------------------------------------------------
8. Herbert C. Bonner (N.C.).
---------------------------------------------------------------------------
Mr. [Prince H.] Preston [Jr., of Georgia]: Briefly, Mr.
Chairman. The reason this language was included in the bill is that
it was requested by the Bureau of the Budget, and for the reason
further that 95 percent of all forest highways are part of the
Federal aid system. The committee felt, since that was true, it was
a logical step to put the whole thing under the Federal aid system
rather than make a direct appropriation for forest highways and
public lands highways.
I do concede that the point of order is well taken; it is
legislation.
The Chairman: The Chair has examined the question and finds
that the language is subject to a point of order and therefore
sustains the point of order.
Forest Roads and Trails
Sec. 28.2 Language in an appropriation bill appropriating funds in the
federal aid highway trust fund for expenses of forest roads and
trails was held not in order where no authorization existed for the
expenditure from the highway trust fund for those proposed purposes
On Feb. 9, 1960,(9) during consideration in the
Committee of the Whole of a general appropriation bill (H.R 10234), a
point of order was raised against the following provision:
---------------------------------------------------------------------------
9. 106 Cong. Rec. 2348, 86th Cong. 2d Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
Forest Highways (Trust Fund) (Liquidation of Contract
Authorization)
For payment of obligations incurred in carrying out the
provisions of title 23, United States Code, section 204,
pursuant to contract authorization granted by title 23, United
States Code, section 203, to remain available until expended,
$36,000,000, to be derived from the ``Highway trust fund'';
which sum is composed of $2,250,000, the remainder of the
amount authorized to be
[[Page 5723]]
appropriated for the fiscal year 1959, and $33,000,000, the
amount authorized to be appropriated for the fiscal year 1960,
and $750,000, a part of the amount authorized to be
appropriated for the fiscal year 1961: Provided, That the
unexpended balance as of June 30, 1960, of appropriations
heretofore granted under the head ``Forest highways
(liquidation of contract authorization)'' is hereby rescinded:
Provided further, That this appropriation shall be available
for the rental, purchase, construction, or alterations of
buildings and sites necessary for the storage and repair of
equipment and supplies used for road construction and
maintenance but the total cost of any such item under this
authorization shall not exceed $15,000
Mr. [Wilbur D.] Mills [of Arkansas]: Mr. Chairman, I rise to
make a point of order against the language appearing in the bill on
page 13, line 16, through line 11 on page 14
The language therein contained is, in my opinion, subject to a
point of order on the ground that there is no authorization for
this action by the Appropriations Committee. The language is
legislation in an appropriation bill.
The Chairman: (10) Does the gentleman from Georgia
desire to be heard on the point of order?
---------------------------------------------------------------------------
10. Aime J. Forand (R.I.)
---------------------------------------------------------------------------
Mr. [Prince H.] Preston [Jr., of Georgia]: Yes, Mr. Chairman.
I would like to say that the language carried in the bill is as
it was presented to the committee by the Bureau of Roads. The
language was carried in the bill last year, and a point of order
was made against it, and we conceded the point of order, which we
do in this instance, because it clearly is subject to a point of
order. But it is a continuing difficulty that we have to deal with
later on.
The Chairman: The Chair sustains the point of order.
Highway Trust Fund, Administrative Expenses
Sec. 28.3 Language in an appropriation bill appropriating funds in the
federal aid highway trust fund for administrative expenses of the
Internal Revenue Service for collection and allocation of taxes to
the fund was held to be unauthorized by law and therefore
legislation and not in order.
On Mar. 4, 1958,(11) the Committee of the Whole was
considering H.R. 11085, a bill making appropriations for the U.S.
Treasury and the Post Office Departments. At one point the Clerk read
as follows:
---------------------------------------------------------------------------
11. 104 Cong. Rec. 3410-12, 85th Cong. 2d Sess.
---------------------------------------------------------------------------
Internal Revenue Service
Salaries and Expenses
For necessary expenses of the Internal Revenue Service,
including purchase (not to exceed 100 for replacement only) and
hire of passenger motor vehicles; and services as authorized by
section 15 of the act of August 2, 1946 (5 U.S.C. 55a), and of
expert witnesses at such rates as may be determined by
[[Page 5724]]
the Commissioner; $322 million, together with $3,500,000 to be
derived from the fund established pursuant to section 209 of the
Highway Revenue Act of 1956: Provided, That not to exceed $200,000
of the amount appropriated herein shall be available for expenses
of instruction and facilities for the training of employees by
contract, subject to such regulations as may be prescribed by the
Secretary of the Treasury.
Mr. [Hale] Boggs [of Louisiana]: Mr. Chairman, I make the point
of order against the language appearing on page 3, in lines 19 and
20, and the portion of line 21 preceding the proviso, that the
language proposes to change existing law and is legislation on an
appropriation bill. . . .
The Chairman:(12) The Chair thanks the gentlemen for
their able presentation and is prepared to rule.
---------------------------------------------------------------------------
12. Brooks Hays (Ark.).
---------------------------------------------------------------------------
This matter does present some difficulty, of course, and
requires an interpretation of section 209 of the Federal-Aid
Highway Act of 1956. Reference to the legislative history would
indicate that it was the intention of the Congress to preserve
inviolate trust funds for highway purposes, with such indirect use
as appeared clearly from the act itself. And, when we take that
into account and the precedents with reference to the disposition
of trust funds, I think it appears that the language is not
sufficiently broad to cover the proposed appropriation in this
case, and in the absence of an authorization otherwise, the point
of order should be sustained
Sec. 28.4 Language in an appropriation bill appropriating funds in the
federal aid highway trust fund for payment of obligations incurred
pursuant to the contract authorization granted for public lands
highways, was held to be legislation and not in order.
On May 20, 1958,(13) during consideration in the
Committee of the Whole of the Commerce Department appropriation bill
(H.R. 12540), a point of order was raised against the following
provision:
---------------------------------------------------------------------------
13. 104 Cong. Rec. 9067, 85th Cong. 2d Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
Public lands highways (trust fund)
For payment of obligations incurred pursuant to the
contract authorization granted by section 106 of the Federal-
Aid Highway Act of 1956 (23 U.S.C. 155), to remain available
until expended, $2,692,000, to be derived from the highway
trust fund; which sum is composed of $692,000, the balance of
the amount authorized to be appropriated for the fiscal year
1958, and $2 million, a part of the amount authorized for the
fiscal year 1959.
Mr. [Robert E.] Jones [Jr.] of Alabama: Mr. Chairman, I make a
point of order against the language appearing on line 8,
`$2,692,000, to be derived from the ``highway trust fund'' as being
legislation on an appropriation bill.
Mr. [Prince H.] Preston [Jr., of Georgia]: Mr. Chairman, the
situation is the same with this item as the pre
[[Page 5725]]
vious item, and we concede the point of order.
The Chairman: (14) The Chair has examined the
language and sustains the point of order.
---------------------------------------------------------------------------
14. Herbert C. Bonner (N.C.).
---------------------------------------------------------------------------
Transfer From Unemployment Trust Fund
Sec. 28.5 Language in an appropriation bill providing for transfer from
the unemployment trust fund a sum for expenses of the Bureau of
Employment Security was held to be legislation and not in order.
On Mar. 27, 1958,(15) during consideration in the
Committee of the Whole of the Departments of Labor and Health,
Education, and Welfare appropriation bill (H.R. 11645), a point of
order was raised against the following provision:
---------------------------------------------------------------------------
15. 104 Cong. Rec. 5630, 85th Cong. 2d Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
Bureau of Employment Security
Salaries and Expenses
For expenses necessary for the general administration of
the employment service and unemployment compensation programs,
including temporary employment of persons, without regard to
the civil-service laws, for the farm placement migratory labor
program; $6,219,000, of which $6,093,400 shall be derived by
transfer from the Federal unemployment account in the
unemployment trust fund, and of which $1,145,800 shall be for
carrying into effect the provisions of title IV (except section
602) of the Servicemen's Readjustment Act of 1944.
Mr. [Melvin R.] Laird [of Wisconsin]: Mr. Chairman, I make a
point of order against the language on page 4 line 13 starting with
the word ``of'' and continuing through the word ``and'' on line 16.
I am not objecting to the provision to provide for the $6,093,400,
but rather the way in which it is being provided.
On page 4 of this bill dealing with appropriations to the
Bureau of Employment Security in the Labor Department line 14 reads
as follows:
$6,093,400 shall be derived by transfer from the Federal
unemployment trust fund.
There is no provision in substantive law authorizing the
transfer of any sums from the unemployment account except to the
account of a State in the unemployment trust fund, which State has
applied for and been certified as eligible to receive an interest-
free repayable advance for the purpose of replenishing its depleted
reserve account
The Federal unemployment account is commonly referred to as a
State's loan fund. There is no valid basis for the transfer of
these funds from the unemployment trust fund to take care of the
expenses and salaries of the Bureau of Employment Security. This
transfer contravenes the intent and purpose of the provision for
the loan fund to assist the States which are in financial
difficulty to continue to make benefit payments.
The Federal unemployment account is in no manner analogous to
the OASI
[[Page 5726]]
and railroad retirement trust funds, which trust funds specifically
earmark all tax collections for crediting to the trust funds and
specifically authorize a transfer out of these trust funds of
amounts necessary to defray the cost of the OASI and railroad
retirement administration.
An examination of section 904(h), which establishes the Federal
unemployment account in the unemployment trust fund, and of
sections 901 and 902, which provide for the computation of any
positive balance which is to go into the trust fund, and of section
903, which provides for the crediting of the positive balance to
the trust fund, and of section 1201, which provides for the making
of advances out of the Federal unemployment account, and of section
1202, which provides for the crediting of certain tax collections
directly to the Federal unemployment account, will clearly disclose
that there is no provision whatsoever for the use of funds in the
Federal unemployment account except for the single and sole purpose
of making repayable interest-free advances to the States.
Mr. [John E.] Fogarty [of Rhode Island]: We concede the point
of order, Mr. Chairman.
The Chairman: (16) The point of order is sustained.
---------------------------------------------------------------------------
16. Eugene J. Keogh (N.Y.).
---------------------------------------------------------------------------
District of Columbia Gasoline Tax Fund
Sec. 28.6 An appropriation for the salary and expenses of the office of
Director of Vehicles and Traffic out of the District of Columbia
Gasoline Tax Fund was held to be legislative since the Gasoline Tax
Act provides that revenue raised through its operation could only
be appropriated by Congress for road and street improvements and
repairs.
On Apr. 2, 1937,(17) during consideration in the
Committee of the Whole of the District of Columbia appropriation bill,
a point of order was raised against the following provision:
---------------------------------------------------------------------------
17. 81 Cong. Rec. 3110, 3111, 75th Cong. 1st Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
For paving, repaving, grading, and otherwise improving
streets, avenues, and roads, including temporary per-diem
services, surveying instruments and implements, and drawing
materials, and the maintenance of motor vehicles used in this
work, including curbing and gutters and replacement of curb-
line trees where necessary, and including trees and parkings,
assessment and permit work and the several purposes provided
for in that paragraph, and salaries and expenses of the office
of the Director of Vehicles and Traffic, as follows, to be paid
from the special fund created by section 1 of the act entitled
``An act to provide for a tax on motor-vehicle fuels sold
within the District of Columbia, and for other purposes'',
approved April 23, 1924 (43 Stat., p. 106), and accretions by
repayment of assessments.
Mr. [Jack] Nichols [of Oklahoma]: Mr. Chairman, I make the
point of
[[Page 5727]]
order against the portion beginning in line 11 on page 71 after the
word ``work'', and beginning with the word ``including'', going
through lines 11, 12, and 13, on down to and inclusive of line 21,
on the ground that it is legislation and changes existing law. . .
.
The Chairman: (18) The Chair is prepared to rule.
The gentleman from Oklahoma [Mr. Nichols] makes a point of order
against certain language appearing on page 71, beginning with the
word ``including'', in line 11, and extending to the end of the
paragraph.
---------------------------------------------------------------------------
18. Jere Cooper (Tenn.).
---------------------------------------------------------------------------
The gentleman from Mississippi [Mr. Collins] in speaking in
opposition to the point of order, has called attention to certain
improvements that are provided for by the language included in this
part of the bill. The Chair would be inclined to agree with the
gentleman in the contention that he presents in all respects except
that relating to the question of salaries and expenses of the
office of director of vehicles and traffic. The Chair observes that
the office of director of vehicles and traffic is provided for in
the act to regulate traffic in the District of Columbia, and so
forth. An examination of this law clearly shows that the director
of vehicles and traffic has rather broad general duties to perform,
and it is not related alone to what might be imposed upon him in
connection with the Gasoline Tax Act. The Gasoline tax Act
provides, as was pointed out by the gentleman from Oklahoma, that--
The proceeds of the tax, except as provided in section 840
of this title, shall be paid into the Treasury of the United
States entirely to the credit of the District of Columbia and
shall be available for appropriations by the Congress
exclusively for road and street improvements and repairs.
The Chair is unable to see how that language would be broad
enough to authorize the payment of salaries for the director of
vehicles and traffic. The Gasoline Tax Act does not make provision
for the payment of the salaries to which the Chair has directed
attention. Therefore, salaries paid out of this fund would not be
authorized by law. For that reason the provision to which the point
of order is made would, in the opinion of the Chair, be legislation
on a general appropriation bill and would be subject to a point of
order.
Therefore the Chair sustains the point of order.
Indians' Judgment Fund
Sec. 28.7 Language in an appropriation bill providing that a specific
amount of the appropriation shall be available from the judgment
fund appropriated for the Indians of California to be advanced in
part for payment of attorneys employed by any tribe under contracts
approved by the Secretary of the Interior, was held to be
legislation and not in order.
On May 3, 1950,(19) during consideration in the
Committee of the Whole of the Interior Department
[[Page 5728]]
appropriation bill (H.R. 7786), the following proceedings took place:
---------------------------------------------------------------------------
19. 96 Cong. Rec. 6304, 6305, 81st Cong. 2d Sess.
---------------------------------------------------------------------------
Tribal Funds
In addition to the tribal funds authorized to be expended by
existing law, there is hereby appropriated $2,525,465 from tribal
funds not otherwise available for expenditure for the benefit of
Indians and Indian tribes, including pay and travel expenses of
employees . . . compensation and expenses of attorneys and other
persons employed by Indian tribes under approved contracts; pay,
travel and other expenses of tribal officers, councils, and
committees thereof . . . and employment of a recreational director
for the Menominee Reservation and a curator for the Osage Museum .
. . Provided, That $100,000 of the amount appropriated herein shall
be available from the judgment fund appropriated for the Indians of
California by section 203 of the act of April 25, 1945 (59 Stat.
77), to be advanced for compensation and expenses of attorneys and
other persons employed by any tribe, band, or other identifiable
groups of Indians of California under contracts approved by the
Secretary . . . Provided further, That in addition to the amount
appropriated herein, tribal funds may be advanced to Indian tribes
for such purposes as may be designated by the governing body of the
particular tribe involved and approved by the Secretary. Any tribal
funds advanced under this authority shall be reported to the
Congress in the annual budget for the next succeeding fiscal year
Mr. [Thomas H.] Werdel [of California]: Mr. Chairman, I make a
point of order, on the ground that it is legislation on an
appropriation bill, against the language commencing with the word
``Provided'' in line 3, page 229, reading:
That $100,000 of the amount appropriated herein shall be
available from the judgment fund appropriated for the Indians
of California by section 203 of the Act of April 25, 1945 (59
Stat. 77), to be advanced for compensation and expenses of
attorneys. . . .
The Chairman:(20) Does the gentleman from Washington
desire to be heard on the point of order?
---------------------------------------------------------------------------
20. Jere Cooper (Tenn.).
---------------------------------------------------------------------------
Mr. [Henry M.] Jackson of Washington: Mr. Chairman, I concede
the point of order.
The Chairman: The Chair sustains the point of order.
Farm Labor Supply Revolving Fund
Sec. 28.8 Language in an appropriation bill providing for transfer of
funds from the farm labor supply revolving fund for expenses of the
Mexican farm labor program was held to be legislation and not in
order.
On Mar. 27, 1958,(1) during consideration in the
Committee of the Whole of the Departments of Labor and Health,
Education, and Welfare appropriation bill (H.R.
[[Page 5729]]
11645), a point of order was raised against the following provision:
---------------------------------------------------------------------------
1. 104 Cong. Rec. 5630, 85th Cong. 2d Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
Salaries and expenses, Mexican farm labor program
For expenses, not otherwise provided for, necessary to
carry out the functions of the Department of Labor under the
act of July 12, 1951, as amended, $1,550,000, to be derived by
transfer from the farm labor supply revolving fund: Provided,
That reimbursement to the United States under agreements
hereafter entered into pursuant to section 502 of the act of
July 12, 1951, as amended, shall include all expenses of
program operations except those compliance activities
separately provided for herein.
Mr. [William R.] Poage [of Texas]: Mr. Chairman, I make the
point of order that this is legislation on an appropriation bill. .
. .
The Chairman: (2) Does the gentleman from Rhode
Island desire to be heard on the point of order?
---------------------------------------------------------------------------
2. Eugene J. Keogh (N.Y.).
---------------------------------------------------------------------------
Mr. [John E.] Fogarty [of Rhode Island]: Mr. Chairman, we must
concede the point of order.
The Chairman: The point of order is sustained.
CHAPTER 26
Unauthorized Appropriations; Legislation on Appropriation Bills
C. PROVISIONS AS ``CHANGING EXISTING LAW,'' GENERALLY
Sec. 29. Transfer of Funds Within Same Bill
Transfers of appropriations within the confines of the same bill
are normally considered in order on a general appropriation bill if not
accompanied by legislative
language. -------------------
Bestowing New Authority on Bureau of the Budget
Sec. 29.1 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,(3) the Committee of the Whole was
considering 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:
---------------------------------------------------------------------------
3. 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
[[Page 5730]]
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: (4) Does the gentleman from Virginia
desire to be heard on the point of order?
---------------------------------------------------------------------------
4. Wall Doxey (Miss.).
---------------------------------------------------------------------------
Mr. [Clifton A.] Woodrum of Virginia: No.
The Chairman: The Chair sustains the point of order.
In General; Permissive Authority to Transfer Indefinite Amount
Sec. 29.2 On one occasion, a provision in a general appropriation bill
which permitted the transfer to an appropriation therein of amounts
contained in other items in that bill, while not constituting a
reappropriation proscribed by Rule XXI clause 6 (then clause 5),
was conceded to be in violation of the rules (as legislative in
character) and was therefore ruled out on a point of order.
On June 4, 1971,(5) during consideration in the
Committee of the Whole of the legislative branch appropriation bill
(H.R. 8825), a point of order was raised against the following
provision:
---------------------------------------------------------------------------
5. 117 Cong. Rec. 18039, 92d Cong. 1st Sess.
---------------------------------------------------------------------------
Government Contributions
For contributions to employees life insurance fund, retirement
fund, and health benefits fund, as authorized by law, $5,245,000,
and in addition, such amount as may be necessary may be transferred
from the preceding appropriation for ``miscellaneous items''.
Mr. [H. R.] Gross [of Iowa]: Mr. Chairman, I make a point of
order against the language to be found on page 6, line 7, after the
figure ``$5,245,000.'' It is this language:
And in addition, such amount as may be necessary may be
transferred from the preceding appropriation for
``miscellaneous items''.
Mr. Chairman, I make a point of order against this language on
the grounds that it is legislation on an appropriation bill.
The Chairman: (6) Does the gentleman from Alabama
desire to be heard on the point of order?
---------------------------------------------------------------------------
6. John M. Murphy (N.Y.).
---------------------------------------------------------------------------
Mr. [George W.] Andrews of Alabama: Mr. Chairman, I will say to
the gentleman from Iowa this is merely a facilitating provision.
This is an amount that must be paid. It is subject to a point of
order, but it is going to be paid one way or the other, because it
is provided by law for Government contributions. We have no way of
determining precisely what amount will be needed.
Some Members have 15 employees. Some have 16. Some have four or
five.
[[Page 5731]]
Regardless of the amount, it has to be paid.
Mr. Gross: Then I submit, Mr. Chairman, the Members of the
House have no way of knowing what constitutes ``miscellaneous
items.''
Mr. Andrews of Alabama: It refers to the ``preceding
appropriation for `miscellaneous items'.'' This is transfer
authority. That is what it amounts to.
Does the gentleman insist on his point of order?
Mr. Gross: Yes, Mr. Chairman; I insist on the point of order.
Mr. Andrews of Alabama: Mr. Chairman, we concede the point of
order.
The Chairman: Does the gentleman from Alabama concede the point
of order?
Mr. Andrews of Alabama: We do, Mr. Chairman.
The Chairman: The point of order is sustained.
Transfer of Funds to Account in Bill
Sec. 29.3 A provision in an appropriation bill that the Secretary may
transfer funds, from appropriations available for authorized
activities of the Department of Agriculture, for use in formulating
programs for such authorized activities, was held in order.
On Mar. 25, 1939,(7) the Committee of the Whole was
considering H.R. 5269, an Agriculture Department appropriation bill.
Proceedings were as follows:
---------------------------------------------------------------------------
7. 86 Cong. Rec. 3306, 3307, 76th Cong. 1st Sess. Admistinction may be
made between actual permissible transfer of funds and the
conferral of a general discretionary authority to make
transfers which might be impermissible if having reference to
transfer of funds not contained within the same bill.
---------------------------------------------------------------------------
Economic investigations: For acquiring and diffusing useful
information among the people of the United States, and for aiding
in formulating programs for authorized activities of the Department
of Agriculture, relative to agricultural production, distribution,
land utilization, and conservation in their broadest aspects,
including farm management and practice, utilization of farm and
food products, purchasing of farm supplies, farm population and
rural life, farm labor, farm finance, insurance and taxation,
adjustments in production to probable demand for the different farm
and food products; land ownership and values, costs, prices, and
income in their relation to agriculture, including causes for their
variations and trends, $839,100: Provided, That the Secretary may
transfer to this appropriation from the funds available for
authorized activities of the Department of Agriculture such sums as
may be necessary for aiding in formulating programs for such
authorized activities, including expenditures for employment of
persons and means in the District of Columbia and elsewhere. . . .
Mr. [John] Taber [of New York]: Mr. Chairman, I renew the point
of order [that the provision] is legislation
[[Page 5732]]
upon an appropriation bill and a delegation to the Secretary of
authority to transfer funds, and delegates to or requires of the
Secretary of Agriculture additional duties in violation of the
rules. . . .
Mr. [Clarence] Cannon of Missouri: Mr. Chairman, no funds are
affected here except funds which have been appropriated by
Congress, and the Secretary of Agriculture under the terms of the
organic law is authorized to administer the Department, and he may,
as administrator of that Department at any time transfer such funds
from one activity to another. The point of order is not well taken,
Mr. Chairman, the appropriation is for the use of the Secretary of
Agriculture in the discharge of his official duties, as provided by
law. . . .
The Chairman: (8) . . . The first point of order
made by the gentleman from New York [Mr. Taber] is overruled
because an examination of section 511 of title 5 of the United
States Code discloses that it is certainly in order. The last part
is related to the transfer of funds. The Chair quotes from Cannon's
Precedents, volume VII, section 1470, the following:
---------------------------------------------------------------------------
8. Wright Patman (Tex.).
---------------------------------------------------------------------------
A proposition to transfer funds from one department of the
Government to another for purposes authorized by law was held
not to involve legislation and to be in order in an
appropriation bill.
The gentleman makes the point of order that it is legislation
in an appropriation bill. The point of order is overruled.
Granting Transfer Authority
Sec. 29.4 Language in the District of Columbia appropriation bill
authorizing the commissioners to transfer money from a specific
appropriation to another appropriation was held to be legislative
in nature and not in order on an appropriation bill.
On Apr. 2, 1937,(9) during consideration in the
Committee of the Whole of the District of Columbia appropriation bill,
a point of order was raised against the following provision:
---------------------------------------------------------------------------
9. 81 Cong. Rec. 3108, 3109, 75th Cong. 1st Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
Police Court
Salaries: For personal services, $107,030: Provided That
upon occupancy of the new police court building the
Commissioners are authorized to transfer such part of this
appropriation for payment of custodial employees as may be
necessary to the appropriation in this act for ``Care of the
District Buildings.''--
Mr. [Jack] Nichols [of Oklahoma]: Mr. Chairman, I make the
point of order on the language contained in the paragraph beginning
in line 22 of page 48, after the ``$107,030'', which reads:
Provided, That upon occupancy of the new police court
building the Commissioners are authorized to transfer such part
of this appropriation for payment of custodial employees as may
be necessary to the appropriation in this act for ``Care of the
District buildings''--
That it is legislation and changes existing law. . . .
[[Page 5733]]
The Chairman: (10) Does the gentleman from
Mississippi desire to be heard on the point of order?
---------------------------------------------------------------------------
10. Jere Cooper (Tenn.).
---------------------------------------------------------------------------
Mr. [Ross A.] Collins [of Mississippi]: I do not, Mr. Chairman.
The Chairman: The gentleman from Oklahoma makes a point of
order against the proviso on page 48, line 22, which reads:
Provided, That upon occupancy of the new police-court
building the Commissioners are authorized to transfer such part
of this appropriation for payment of custodial employees as may
be necessary to the appropriation in this act for ``Care of the
District buildings.''
This provision seeks to authorize the Commissioners of the
District of Columbia to transfer funds appropriated for one
specific purpose to another purpose, and, apparently, seeks also to
impose an additional duty on the Commissioners. Therefore, it is
legislation on a general appropriation bill, and the Chair sustains
the point of order.
Limiting Amounts Transferred Within Accounts in Bill
Sec. 29.5 A general provision in an appropriation bill permitting
transfers of sums appropriated therein from one subhead to another
in the same enactment was held not to constitute legislation.
On June 29, 1959,(11) during consideration in the
Committee of the Whole of a supplemental appropriation bill (H.R.
7978), a point of order was raised against the following provision:
---------------------------------------------------------------------------
11. 105 Cong. Rec. 12131, 86th Cong. 1st Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
General Provisions
Not to exceed 5 per centum of any appropriation made
available to the National Aeronautics and Space Administration
by this Act may be transferred to any other such appropriation,
but the ``Salaries and expenses'' appropriation shall not be
thereby increased.
Mr. [H. R.] Gross [of Iowa]: Mr. Chairman, a point of order.
The Chairman: (12) The gentleman will state it.
---------------------------------------------------------------------------
12. Paul J. Kilday (Tex.).
---------------------------------------------------------------------------
Mr. Gross: Mr. Chairman, I make a point of order against the
language on page 5, lines 17 to 21, inclusive, as being legislation
on an appropriation bill.
The Chairman: Does the gentleman from Texas desire to be heard
on the point of order?
Mr. [Albert] Thomas [of Texas]: Yes, Mr. Chairman. We think
this is not legislation. It refers entirely to funds within this
bill. It starts off as a limitation and applies only to funds in
this bill.
Mr. [Ben F.] Jensen [of Iowa]: Mr. Chairman, will the gentleman
yield?
Mr. Thomas: I yield to my friend from Iowa.
Mr. Jensen: This is nothing more nor less than a limitation on
an appropriation bill.
The Chairman: The Chair is prepared to rule. The gentleman from
[[Page 5734]]
Iowa [Mr. Gross] makes a point of order against that portion of the
bill appearing on page 5, lines 17 through 21, that it constitutes
legislation on an appropriation bill. It appears to the Chair that
the transfer applies to funds only within this bill, that it is not
legislation on an appropriation bill, and overrules the point of
order.
Sec. 29.6 An amendment to a title of an appropriation bill providing
that not to exceed five percent of any appropriation in the title
may be transferred to any other appropriation therein, but no such
appropriation shall be increased by more than five percent by any
such transfer was held not to constitute legislation.
On Apr. 25, 1950,(13) the Committee of the Whole was
considering H.R. 7786, the Labor Department and Federal Security Agency
chapter of the general appropriation bill for 1951. The Clerk read as
follows:
---------------------------------------------------------------------------
13. 96 Cong. Rec. 5732, 81st Cong. 2d Sess.
---------------------------------------------------------------------------
Amendment offered by Mr. [John E.] Fogarty [of Rhode Island]:
On page 124, line 13, insert ``Sec. 106. Not to exceed 5 percent of
any appropriation in this title may be transferred to any other
such appropriation, but no such appropriation shall be increased by
more than 5 percent by any such transfer: Provided, That no such
transfer shall be used for creation of new functions within the
Department.''
Mr. [John] Taber [of New York]: Mr. Chairman, a point of order.
The Chairman: (14) The gentleman will state it.
---------------------------------------------------------------------------
14. Jere Cooper (Tenn.).
---------------------------------------------------------------------------
Mr. Taber: Mr. Chairman, this is legislation upon an
appropriation bill in that it gives authority to somebody else to
perform a budgetary act in a department. It goes beyond the pale of
a direct appropriation or a limitation and it gives authority to
the department to transfer funds. That authority does not exist
without this language and it is clearly a delegation of additional
duties to the department that do not already exist. . . .
The Chairman: The Chair is prepared to rule. The gentleman from
Rhode Island has offered an amendment which has been reported. The
gentleman from New York has made a point of order against the
amendment on the ground that it is legislation on an appropriation
bill in violation of the rules of the House.
The Chair has examined the amendment offered by the gentleman
from Rhode Island and has listened to the argument presented by the
gentleman from New York. The Chair is of the opinion that the
language contained in this amendment does not constitute
legislation, and invites attention to section 1468 of Cannon's
Precedents, volume 7, in which it is stated:
A proposition to transfer a sum previously appropriated
from one subhead to another in the same enactment was held not
to constitute legislation.
There are quite a number of decisions cited in approval of that
holding.
[[Page 5735]]
Therefore the Chair overrules the point of order.
29.7 Language in a general appropriation bill permitting
appropriations to be used interchangeably among several offices
with approval of the Bureau of the Budget provided that no office
exceed the amount appropriated for it by more than a designated
percentage, was held to be legislative in character.
On Mar. 16, 1945,(15) during consideration in the
Committee of the Whole of a general appropriation bill (H.R. 2603), a
point of order was raised against the following provision, and
proceedings ensued as indicated below:
---------------------------------------------------------------------------
15. 91 Cong. Rec. 2353, 79th Cong. 1st Sess.
---------------------------------------------------------------------------
Not to exceed 5 percent of the foregoing appropriations for
personal services shall be available interchangeably, subject to
the approval of the Bureau of the Budget, for expenditures in the
various offices and divisions named, but not more than 5 percent
shall be added to the amount appropriated for any one of said
offices or divisions and any interchange of appropriations
hereunder shall be reported to Congress in the annual Budget, and
not to exceed $250,000 of said appropriations shall be available
for the employment, on duties properly chargeable to each of said
appropriations, of special assistants to the Attorney General
without regard to the Classification Act of 1923, as amended.
Mr. [Robert F.] Jones [of Ohio]: Mr. Chairman, I make a point
of order against the language on page 36 beginning with line 23 and
continuing to the end of the page, and on page 37, the first 10
lines, inclusive, on the ground that it is legislation on an
appropriation bill not provided for by law.
Mr. [Louis C.] Rabaut [of Michigan]: Mr. Chairman, I concede
the point of order. It has been in the bill for many years,
however.
The Chairman: (16) The point of order is sustained.
---------------------------------------------------------------------------
16. Wilbur D. Mills (Ark.).
---------------------------------------------------------------------------
Parliamentarian's Note: The language in this paragraph giving
approval authority to the Bureau of the Budget, requiring reporting to
Congress, and waiving the Classification Act of 1923 was clearly
legislation.
Interchange of Appropriations
Sec. 29.8 Language in an appropriation bill permitting interchange of
appropriations in the bill for purposes authorized by law was in
order on an appropriation bill.
On Mar. 28, 1939,(17) the Committee of the Whole was
considering H.R. 5269, an Agriculture
[[Page 5736]]
Department appropriation bill. The Clerk read as follows:
---------------------------------------------------------------------------
17. 84 Cong. Rec. 3458, 3459, 76th Cong. 1st Sess.
---------------------------------------------------------------------------
Interchange of Appropriations
Not to exceed 5 percent of the foregoing amounts for the
miscellaneous expenses of the work of any bureau, division, or
office herein provided for shall be available interchangeably for
expenditures on the objects included within the general expenses of
such bureau, division, or office, but not more than 5 percent shall
be added to any one item of appropriation except in cases of
extraordinary emergency.
Mr. [John] Taber [of New York]: Mr. Chairman, I make the point
of order against the paragraph that it is legislation on an
appropriation bill and delegates authority and requires the
performance of further duties on the part of the Secretary of
Agriculture.
Mr. [Clarence] Cannon of Missouri: Mr. Chairman, the Chair
ruled on that point of order when a similar provision was before
the Committee Friday.
The Chairman: (18) On a number of occasions a
similar point of order has been overruled. The Chair overrules the
point of order.
---------------------------------------------------------------------------
18. Wright Patman (Tex.).
---------------------------------------------------------------------------
Restrictions on Transfers Between Accounts in Paragraph
Sec. 29.9 A provision restricting the amount which could be transferred
between accounts under that paragraph was held in order as a
limitation.
On Aug. 1, 1973,(19) during consideration in the
Committee of the Whole of a general appropriation bill (H.R. 9590), a
point of order was raised against the proviso in the following
paragraph:
---------------------------------------------------------------------------
19. 119 Cong. Rec. 27288, 27289, 93d Cong. 1st Sess.
---------------------------------------------------------------------------
Property Management and Disposal Service
operating expenses
For expenses, not otherwise provided for, necessary for
carrying out the functions of the Administrator with respect to
the utilization of excess property; the disposal of surplus
property; the rehabilitation of personal property . . . the
supplemental stockpile established by section 104(b) of the
Agricultural Trade Development and Assistance Act of 1954 (68
Stat. 456, as amended by 73 Stat. 607); including services as
authorized by 5 U.S.C. 3109 and reimbursement for security
guard services, $33,000,000, to be derived from proceeds from
transfers of excess property, disposal of surplus property, and
sales of stockpile materials . . . Provided further, That none
of the funds available under this heading shall be available
for transfer to any other account nor for the funding of any
activities other than those specifically authorized under this
heading.
Mr. [John D.] Dingell [of Michigan]: Mr. Chairman, a point of
order.
The Chairman: (20) The gentleman will state it.
---------------------------------------------------------------------------
20. Richard Bolling (Mo.).
---------------------------------------------------------------------------
After points of order had been conceded with respect to other
language in the paragraph (omit
[[Page 5737]]
ted here),(1) the following colloquy occurred:
---------------------------------------------------------------------------
1. Points of order were directed against provisions in a paragraph of
the appropriation bill (1) authorizing the General Services
Administration to acquire lease-hold interests in property; (2)
removing limitations imposed by law on the value of surplus
strategic materials which may be transferred without
reimbursement to the national stockpile; and (3) authorizing
materials in certain stockpiles and inventories to be available
without reimbursement for transfer to contractors as payment
for expenses. These provisions were conceded to be legislation
and were stricken from the bill.
See Sec. 38.7, infra, for more detailed treatment of the
points of order.
---------------------------------------------------------------------------
Mr. [Thomas J.] Steed [of Oklahoma]: Mr. Chairman, the points
of order made against the language are conceded down to line 7,
page 23, but the language of that ``Provided further,'' is a simple
limitation on an appropriation bill and is not subject to a point
of order.
The Chairman: The Chair agrees with the gentleman from
Oklahoma.
The various points of order that are conceded are sustained,
and that language is stricken. The language:
Provided further, That none of the funds available under
this heading shall be available for transfer to any other
account nor for the funding of any activities other than those
specifically authorized under this heading.
Which is a proper limitation and appears beginning in line 7,
page 23, through line 10, remains in the bill, since the point of
order has not been made against the entire paragraph.
Unallocated Funds in Pending Bill
Sec. 29.10 To a general appropriation bill making appropriations for
certain public works, an amendment providing that a particular
authorized project should be financed out of ``any available
unallocated funds contained in this act'' was held to be in order.
On June 5, 1959,(2) during consideration in the
Committee of the Whole of a bill (H.R. 7509), making appropriations for
the civil functions of the Department of the Army, a point of order was
raised against the following amendment:
---------------------------------------------------------------------------
2. 105 Cong. Rec. 10054, 10055, 86th Cong. 1st Sess.
---------------------------------------------------------------------------
Mr. [Robert L.F.] Sikes [of Florida]: Mr. Chairman, I offer an
amendment.
The Clerk read as follows:
Amendment offered by Mr. Sikes: On page 4, line 16, strike
out the period, add a semicolon and the words ``Provided
further, That the improvement of the Escambra River, Fla.,
according to authorized specification may be undertaken with
any available unallocated funds contained in this act.'' . . .
Mr. [John] Taber [of New York]: Mr. Chairman, I make the point
of order against the amendment that it
[[Page 5738]]
changes existing law. It attempts to control funds that have been
appropriated in previous acts in a way that is different from the
way those acts now stand and as those old appropriations stood.
The Chairman: (3) The Chair would like to be
informed as to whether or not the particular project referred to in
the amendment offered by the gentleman from Florida is authorized
by law.
---------------------------------------------------------------------------
3. Hale Boggs (La.).
---------------------------------------------------------------------------
Mr. Taber: That I do not know.
Mr. Sikes: May I respectfully state, Mr. Chairman, that the
project is authorized by law. It was carried in the last rivers and
harbors omnibus bill, which was signed by the President, and I am
informed the number of that law is 500 of the 85th Congress. I
further point out that this is permissive and as such would not
constitute legislation upon an appropriation bill.
Mr. Taber: The previous act carried a provision ``to remain
available until expended.'' This particular amendment would mean
that they would be using it for something that was not in the
original bill, and that would result in a change in existing law
That is the idea that I had in making the point of order.
The Chairman: The Chair is prepared to rule.
Apparently the gentleman from New York is not making the point
of order on whether or not the project is authorized. The Chair has
been informed by the gentleman from Florida that the project is
authorized by law.
Insofar as the point of order made by the gentleman from New
York is concerned, the Chair overrules the point of order because
this language is quite specific in that it makes available
unallocated funds contained in this act, the act now being debated
before the committee, and does not affect heretofore made
appropriations.
Discretionary Transfer of Funds
Sec. 29.11 Language in an appropriation bill making an appropriation
for specific objects ``together with such amounts (transferred)
from other appropriations . . . as may be determined by the
Secretary,'' was held to be legislation on an appropriation bill
and not in order.
On May 17, 1951,(4) during consideration in the
Committee of the Whole of the Agriculture Department appropriation bill
(H.R. 3973), a point of order was raised against the following
provision:
---------------------------------------------------------------------------
4. 97 Cong. Rec. 5468, 5469, 82d Cong. 1st Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
Office of Information
For necessary expenses in connection with the publication .
. . and distribution of bulletins, documents, and reports, the
preparation, distribution, and display of agricultural motion
and sound pictures . . . and the coordination of informational
work and programs authorized by Congress in the Department,
$1,271,000, together with such
[[Page 5739]]
amounts from other appropriations or authorizations as are
provided in the schedules in the budget for the current fiscal
year for such expenses, which several amounts or portions
thereof, as may be determined by the Secretary, not exceeding a
total of $16,200, shall be transferred to and made a part of
this appropriation, of which total appropriation amounts not
exceeding those specified may be used for the purposes
enumerated as follows: For preparation and display of exhibits,
$104,725. . . .
Mr. [Kenneth B.] Keating [of New York]: Mr. Chairman, I make a
point of order against the language in lines 4 to 9, inclusive,
page 46, on the ground that it involves additional duties on the
part of the Secretary of Agriculture.
The Chairman: (5) Does the gentleman from
Mississippi care to be heard on the point of order?
---------------------------------------------------------------------------
5. Aime J. Forand (R.I.).
---------------------------------------------------------------------------
Mr. [Jamie L.] Whitten [of Mississippi]: Mr. Chairman, we
concede the point of order.
The Chairman: The point of order is sustained.
Transfer With Approval of Committee on Appropriations
Sec. 29.12 A paragraph in a general appropriation bill authorizing the
transfer of funds within an appropriation for allowances and
expenses, with the approval of the Committee on Appropriations, was
conceded to constitute legislation in violation of Rule XXI clause
2 and was stricken from the bill on a point of order.
On Mar. 16, 1977,(6) during consideration in the
Committee of the Whole of H.R. 4877 (supplemental appropriation bill),
a point of order was sustained against a provision in the bill, as
follows:
---------------------------------------------------------------------------
6. 123 Cong. Rec. 7747, 95th Cong. 1st Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
Such amounts as deemed necessary for the payment of
allowances and expenses within this appropriation may be
transferred among accounts upon approval of the Committee on
Appropriations of the House of Representatives.
Mr. [Robert E.] Bauman [of Maryland]: Mr. Chairman, I make a
point of order against the language on page 29, lines 17 through
20, inclusive, on the grounds that the language as it is written
constitutes legislation on an appropriation bill.
In previous instances where an appropriation bill has contained
similar language--and I emphasize the word ``similar''--the Chair
has held that it is permissible to allow language that would
transfer appropriations from one subhead to another in the same
enactment.
The language before us, if it is read carefully, makes it
rather clear that what is being permitted is the transfer of
amounts, and they may be transferred, as the language says, among
accounts upon approval.
It is not in fact an authorization to transfer amongst the
various moneys in this bill, but in fact could be used to
[[Page 5740]]
authorize the transfer of previously appropriated amounts not in
this bill.
Therefore, it exceeds the authority of the committee to in fact
consider it. . . .
Mr. [George E.] Shipley [of Illinois] . . . The committee will
concede the point of order.
The Chairman: (7) The gentleman from Illinois [Mr.
Shipley] concedes the point of order. Therefore, the Chair sustains
the point of order raised by the gentleman from Maryland [Mr.
Bauman] and the language is stricken from the bill.
---------------------------------------------------------------------------
7. Walter Flowers (Ala.).
---------------------------------------------------------------------------
CHAPTER 26
Unauthorized Appropriations; Legislation on Appropriation Bills
C. PROVISIONS AS ``CHANGING EXISTING LAW,'' GENERALLY
Sec. 30. Transfer of Funds Not Limited to Same Bill
Section 139(c) of the Legislative Reorganization Act of 1946, later
incorporated into the standing rules as clause 5 (now clause 6) of Rule
XXI in 1953, sought to prohibit inclusion in general appropriation
bills of reappropriations, which were understood to be legislative
methods (1) for making an appropriation available after the period in
which it may be obligated has expired, or (2) for transferring to a
given appropriation an amount not needed in another appropriation. See
Chapter 25, Sec. 3, supra, for further discussion of decisions
involving reappropriations of unexpended balances on general
appropriation bills. In that section, the emphasis is on the
prohibition against reappropriations, while in the precedents cited in
this section, the Chair's rulings focus on the proposed language as
changing existing law. This section includes rulings wherein the Chair
has relied upon both clauses 2 and 6 of Rule XXI to rule out provisions
which sought to authorize the transfer of previously appropriated funds
into new accounts (see Sec. Sec. 30.17, 30.19, and 30.20, infra).
Prior to enactment of the Legislative Reorganization Act of 1946,
provisions which reappropriated in a direct manner unexpended balances
and continued their availability for the same purpose for an extended
period of time were not prohibited by Rule XXI because they were not
deemed to change existing law by conferring new authority (see, e.g., 4
Hinds' Precedents Sec. 3592; 7 Cannon's Precedents Sec. 1152; Ch. 25,
Sec. 3.14, supra). Indeed, some precedents indicated that provisions in
or amendments to general appropriation bills were in order which not
only constituted reappropriations of unexpended balances, but which
conferred new authority on federal officials to expend such balances
for purposes different from those for which originally appropriated.
(See, e.g., 4 Hinds'
[[Page 5741]]
Precedents Sec. 3591; 7 Cannon's Precedents Sec. 1153-1156, 1158.)
Other precedents, however, indicated that propositions to make an
appropriation payable from funds already appropriated for a different
purpose were considered legislation (see, e.g., 7 Cannon's Precedents
Sec. 1466). On Dec. 14, 1921, Speaker Frederick H. Gillett, of
Massachusetts, stated that ``there are several decisions in print which
are contradictory. There are decisions both ways.'' (7 Cannon's
Precedents Sec. 1158).
In light of the more recent precedents contained in this section,
it is apparent that provisions on a general appropriation bill are in
violation of Rule XXI clause 2 if they confer new authority to expend
previously appropriated funds for a new purpose, or to expend funds for
unauthorized projects, by mandating or permitting transfers between
accounts. -------------------
Transfer From Previous Appropriations
Sec. 30.1 An amendment to an appropriation bill proposing the transfer
of funds previously appropriated in another appropriation bill is
legislation. [An amendment proposing transfer of funds appropriated
under one heading in the Supplemental Appropriation Act, 1959 (Pub.
L. No. 85-766) for use under another heading in the District of
Columbia Appropriation Act, 1959 (Pub. L. No. 85-594), was held to
be legislation.]
On Mar. 24, 1959,(8) during consideration in the
Committee of the Whole of a supplemental appropriation bill (H.R 5916),
a point of order was raised against the following amendment:
---------------------------------------------------------------------------
8. 105 Cong. Rec. 5102, 86th Cong. 1st Sess.
---------------------------------------------------------------------------
Mr. [Carl T.] Durham [of North Carolina]: Mr. Chairman, I offer
an amendment.
The Clerk read as follows:
Amendment offered by Mr. Durham: After line 24, page 13,
add the following:
``Office of Civil Defense and Mobilization
``Federal contributions: For an additional amount for
`Federal contributions' to the States pursuant to section 205
of the Federal Civil Defense Act of 1950, as amended, to be
equally matched with State funds, $3 million to be derived by
transfer from the appropriation for `emergency supplies and
equipment,' fiscal year 1959.''
The Chairman: (9) The gentleman from North Carolina
is recognized.
---------------------------------------------------------------------------
9. Hale Boggs (La.).
---------------------------------------------------------------------------
Mr. [John] Taber [of New York]: Mr. Chairman, I make a point of
order against the amendment.
[[Page 5742]]
The Chairman: The gentleman will state it.
Mr. Taber: Mr. Chairman, I make the point of order that the
amendment is legislation on an appropriation bill.
The Chairman: Does the gentleman from North Carolina desire to
be heard on the point of order?
Mr. Durham: Mr. Chairman, this is a transfer of funds, a matter
that I understand appears all through the bill, and I was so
advised by the clerk of the committee.
The Chairman: This is a little more than that; it affects the
transfer of funds for the fiscal year 1959 for this new purpose,
and as such would constitute legislation.
Mr. Durham: If that is the Chair's interpretation, I concede
the point of order.
The Chairman: The point of order is sustained.
Sec. 30.2 In an appropriation bill a provision transferring funds
previously appropriated under another subhead in a prior enactment
was held to be legislation.
On Mar. 18, 1955,(10) during consideration in the
Committee of the Whole of a supplemental appropriation bill (H.R 4903),
a point of order was raised against the following provision:
---------------------------------------------------------------------------
10. 101 Cong. Rec. 3197, 3198, 84th Cong. 1st Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
Contributions to the United Nations expanded program of
technical assistance
For an additional amount for ``Contributions to the United
Nations expanded program of technical assistance,'' for United
States contributions during the period ending June 30, 1955, $4
million, to be derived by transfer from the appropriation
contained in Public Law 778, 83d Congress, for assistance
authorized by section 121 of Public Law 665, 83d Congress. . .
.
See Sec. 29.6, supra, where transfers between accounts in the
pending bill, rather than from an account in a prior act were held
in order, citing 7 Cannon's Precedents Sec. 1468.
The Chairman: (11) What is the gentleman's point of
order?
---------------------------------------------------------------------------
11. Clark W. Thompson (Tex.).
---------------------------------------------------------------------------
Mr. [Clare E.] Hoffman of Michigan: That it is legislation on
an appropriation bill because in line 19 it provides that the ``$4
million, to be derived by transfer from the appropriation contained
in Public Law 778, 83d Congress, for assistance authorized by
section 121 of Public Law 665, 83d Congress.'' That section which I
have before me expressly provides that the money is given to the
President for his own purposes. Down in the next section a
limitation is put on the fund. The President's control over it is
limited to certain specific purposes. . . .
Mr. [Prince H.] Preston [of Georgia]: Mr. Chairman, I concede
the point of order.
The Chairman: The point of order is sustained.
Transfer From Fund Created From Bond Proceeds
Sec. 30.3 Language in an appropriation bill providing addi
[[Page 5743]]
tional funds for rural electrification to be made available from
the loan authority for 1956 for rural housing (not an appropriated
account), was held to be legislation and not in order.
On Apr. 15, 1957,(12) during consideration in the
Committee of the Whole of a deficiency appropriation bill (H.R 6870), a
point of order was raised against the following provision:
---------------------------------------------------------------------------
12. 103 Cong. Rec. 5684-86, 85th Cong. 1st Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
Rural Electrification Administration
Loan authorizations
For an additional amount for loans for the rural-
electrification program, $200 million, to be borrowed from the
Secretary of the Treasury in accordance with section 3(a) of
the Rural Electrification Act of 1936, as amended, and to be
made available from the loan authorization contained in section
606(a) of the act of August 7, 1956 (Public Law 1020).
Mr. [Robert E.] Jones [Jr.] of Alabama: Mr. Chairman, a point
of order.
The Chairman: (13) The gentleman will state it.
---------------------------------------------------------------------------
13. Howard W. Smith (Va.).
---------------------------------------------------------------------------
Mr. Jones of Alabama: Mr. Chairman, I make a point of order
against the language commencing on page 2, line 23, after the word,
``as amended'' and reading: ``And to be made available from the
loan authorization contained in section 606(a) of the act of August
7, 1956 (Public Law 1020).''
Mr. Chairman, the public law referred to has nothing whatsoever
to do with the authorization of REA, but is a loan authorization
for construction of rural housing as provided in the Rural Housing
Act of 1949, as amended by the act of 1956, which gives
authorization to the Secretary of Agriculture to issue such
debentures as necessary to carry out the authority contained in
section 11 of the act of 1949.
I submit that this is legislation on an appropriation bill and
is subject to a point of order. . . .
The Chairman: The Chair is prepared to rule.
The point of order made by the gentleman from Alabama on line
23, page 2, is against the three lines beginning with the word
``and'' as being legislation upon an appropriation bill, which it
obviously is.
Transfer From Funds Available to Commodity Credit Corporation
Sec. 30.4 To an appropriation bill an amendment making available to the
Secretary of the Army for furnishing a specified milk ration
certain available funds of the Commodity Credit Corporation was
held to be legislation and therefore not in order.
On Apr. 29, 1954,(14) during consideration in the
Committee of the
[[Page 5744]]
Whole of the Defense Department appropriation bill (H.R. 8873), a point
of order was raised against the following amendment:
---------------------------------------------------------------------------
14. 100 Cong. Rec. 5749, 4750, 83d Cong. 2d Sess.
---------------------------------------------------------------------------
Mr. [Franklin D.] Roosevelt [Jr., of New York]: Mr. Chairman, I
offer an amendment.
The Clerk read as follows:
Amendment offered by Mr. Roosevelt: At line 12, page 6,
after the figure ``$4,150,479,000'', insert the following:
``plus such other amounts, from the funds available to the
Commodity Credit Corporation for price support to producers of
milk, butterfat and the products of milk and butterfat, which
the Secretary of the Army requires in order to make available
to each of the persons herein described, a minimum daily ration
of 1 quart of whole fluid milk in addition to such other
amounts of milk products to which he is entitled.''
Mr. [Gerald R.] Ford [of Michigan]: Mr. Chairman, I make a
point of order against the amendment offered by the gentleman from
New York. . . .
Mr. Chairman, I press the point of order, based on the fact
that this amendment seeks to change existing law, first; secondly,
it seeks to provide funds other than those provided in the act;
and, thirdly, I believe it seeks to place additional duties on the
Secretary of the Army.
The Chairman: (15) Does the gentleman from New York
[Mr. Roosevelt] desire to be heard on the point of order?
---------------------------------------------------------------------------
15. William M. McCulloch (Ohio).
---------------------------------------------------------------------------
Mr. Roosevelt: Yes, Mr. Chairman.
May I say in opposition to my friend on the point of order that
this does not change existing law insofar as appropriations have
been made. As I pointed out, this does not call for any new
appropriation. It merely marks the transfer of existing
appropriations for dispensation in accordance with the amendment.
The Chairman: The Chair is ready to rule.
The Chair is of the opinion that the amendment is legislation
on an appropriation bill, and that the point of order is well
taken. The Chair sustains the point of order.
Transfer to Previous Appropriation.
Sec. 30.5 To an appropriation bill an amendment adding an appropriation
and providing for transferring funds therefrom to an appropriation
made by a prior enactment but without regard to the limitations
applicable to the previously appropriated funds was held to be
legislation and not in order.
On July 20, 1954,(16) during consideration in the
Committee of the Whole of a supplemental appropriation bill (H.R 9936),
a point of order was raised against the following amendment:
---------------------------------------------------------------------------
16. 100 Cong. Rec. 11123, 83d Cong. 2d Sess.
---------------------------------------------------------------------------
Amendment offered by Mr. [Richard B.] Wigglesworth [of
Massachusetts]: Page 6, line 11, after the words ``ship
construction'' strike out all of lines 11,
[[Page 5745]]
12, and 13, and insert in lieu thereof the following:
``For payment of construction-differential subsidy and cost of
national defense features incident to construction of four
passenger-cargo ships under title V of the Merchant Marine Act,
1936, as amended (46 U.S.C. 1154); for reconditioning and
betterment of not to exceed four ships in the national defense
reserve fleet; and for necessary expenses for the acquisition of
used tankers pursuant to section 510 of the Merchant Marine Act,
1936, as amended (46 U.S.C. 1160), and the payment of cost of
national defense features incorporated in new tankers constructed
to replace such used tankers, $82,600,000, to remain available
until expended: Provided, That transfers may be made to the
appropriation for the current fiscal year for `Salaries and
expenses' for administrative expenses (not to exceed $500,000) and
for reserve fleet expenses (in such amounts as may be required),
and any such transfers shall be without regard to the limitations
under that appropriation on the amounts available for such
expenses: Provided further, That appropriations granted herein
shall be available to pay construction-differential subsidy granted
by the Federal Maritime Board, pursuant to section 501(c) of the
Merchant Marine Act, 1936, as amended, to aid in the reconstruction
of any Mariner-class ships sold under the provisions of title VII
of the 1936 act.''
Mr. [John] Taber [of New York]: Mr. Chairman, I make the point
of order that the amendment contains legislation. The language
``and any such transfers shall be without regard to the limitations
under that appropriation of the amounts available for such
expenses'' makes it clearly subject to a point of order.
The Chairman: (17) Does the gentleman from
Massachusetts desire to be heard on the point of order?
---------------------------------------------------------------------------
17. Leo E. Allen (Ill.).
---------------------------------------------------------------------------
Mr. Wigglesworth: Mr. Chairman, the language submitted is the
language that was received from the Bureau of the Budget. It seemed
to me that if this step was to be taken this was the desirable way
to do. However, if the gentleman from New York insists, I concede
that the language in question is subject to a point of order.
The Chairman: The Chair sustains the point of order on the
ground that the amendment does contain legislation.
Lifting Appropriation Ceiling; Allowing Transfer to New Project
Sec. 30.6 A provision in an appropriation bill changing the dollar
limitation on a project and transferring previously appropriated
funds from one project to another was conceded to be legislation
and was ruled out on a point of order.
On Aug. 26, 1960,(18) during consideration in the
Committee of the Whole of a supplemental appropriation bill (H.R
12740), the
[[Page 5746]]
following point of order was raised:
---------------------------------------------------------------------------
18. 106 Cong. Rec. 17899, 86th Cong. 2d Sess.
---------------------------------------------------------------------------
Mr. [H.R.] Gross [of Iowa]: Mr. Chairman, I make a point of
order on the language on page 12, beginning on line 11, running
through line 19, as being legislation on an appropriation bill, the
language being as follows:
Construction and Rehabilitation
The limitation under this head in the Interior Department
Appropriation Act, 1955, on the amount available toward the
emergency rehabilitation of the Crescent Lake Dam project,
Oregon, is increased from ``$297,000'' to $305,000'', and not
to exceed $300,000 of funds available under this head for
fiscal year 1961 shall be used for advance planning activities
on the Canadian River project, Texas.
The Chairman: (19) Does the gentleman from Texas
desire to be heard on the point of order?
---------------------------------------------------------------------------
19. Herbert C. Bonner (N.C.).
---------------------------------------------------------------------------
Mr. [Albert] Thomas [of Texas]: Mr. Chairman, the point of
order is good, but for the all-powerful reason that it does not
appropriate any money, but simply transfers money appropriated
several years ago and we concede the point of order.
The Chairman: The point of order is sustained.
Change in Purpose of Permanent Appropriation
Sec. 30.7 Language in an appropriation bill authorizing the Secretary
of Agriculture to pay out of funds made available by section 32 of
the Act of Aug. 24, 1935, transportation and handling charges on
surplus commodities owned by the department and its agencies for
the purpose of distribution to public welfare agencies was held to
be legislation and not in order.
On Apr. 27, 1950,(20) during consideration in the
Committee of the Whole of the Agriculture Department appropriation bill
(H.R. 7786), a point of order was directed against the following
language of the bill:
---------------------------------------------------------------------------
20. 96 Cong. Rec. 5911-13, 81st Cong. 2d Sess.
---------------------------------------------------------------------------
The Department of Agriculture is authorized to pay out of funds
made available by section 32 of the Act of August 24, 1935 (7
U.S.C. 612(c)) transportation and handling charges on surplus
commodities owned by the Department or any of its instrumentalities
or agencies for the purpose of distribution to public welfare
agencies.
Mr. [Stephen] Pace [of Georgia]: Mr. Chairman, I make the point
of order against the language on page 193, lines 18 through 24,
that it is legislation on an appropriation bill and therefore is
contrary to the rules of the House, in that it seeks to add an
additional purpose for which section 32 funds may be expended.
Section 32 of the act of August 24, 1935, is the section which
sets aside 30 percent of the gross customs receipts to
[[Page 5747]]
be expended for certain purposes; namely, to increase the export
and the consumption of agricultural commodities. The purposes for
which the funds may be expended are set out. They may be used by
paying indemnities to exporters, and by making payments to
producers. The further authority proposed to be set forth in this
bill is to pay the transportation and handling charges on certain
agricultural commodities. . . .
Mr. [Jamie L.] Whitten [of Mississippi]: While there is much
merit to the intent of our friend, the gentleman from Minnesota, I
am rather of the same opinion as my colleague, the gentleman from
Georgia, so far as the use of section 32 funds is concerned.
Further, it has been my purpose and the purpose of our committee to
cooperate with the legislative committee and in no case to usurp or
try to usurp their prerogatives. The provision put in here is a
stop-gap and it was done only on the basis that the legislative
committee was now considering this matter. I think the committee is
so considering it. I wonder if it would not be better to let the
whole thing go out and let the legislative committee handle it by
substantive law. I think that is the way it properly should be
handled. I did yield to the desires of our colleagues of the
committee to try to meet this situation by putting it in here. But
if there is any objection on the part of the legislative committee,
certainly it is their business. We are trying to help out rather
than try to usurp their prerogatives. That is the position I take.
The Chairman: (1) The Chair is prepared to rule on
the point of order. . . .
---------------------------------------------------------------------------
1. Jere Cooper (Tenn.).
---------------------------------------------------------------------------
The Chair has examined the language referred to and is
definitely of the opinion that it does include legislation on an
appropriation bill. The Chair is very favorably impressed with the
last statement made by the gentleman from Georgia in reply to the
observation made by the gentleman from South Dakota to the effect
that if existing law provided for this there would be no useful
purpose to be served by having this provision in the bill. It does
appear very clearly to the Chair that the inclusion of this
language would result in a diversion of certain funds from the
purpose provided by existing law for the use of those funds. It
therefore appearing to the Chair that it is legislation on an
appropriation bill, in violation of the rules of the House, the
Chair sustains the point of order.
New Purpose For Previously Appropriated Funds
Sec. 30.8 Language in an appropriation bill providing that funds for
two reclamation projects be derived by transfer from appropriations
previously made available to the Department of the Interior was
held to be legislation and not in order.
On Feb. 26, 1958, (2) during consideration in the
Committee of the Whole of a supplemental appropriation bill (H.R
10881), a point
[[Page 5748]]
of order was raised against the following provision:
---------------------------------------------------------------------------
2. 104 Cong. Rec. 2899, 85th Cong. 2d Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
Bureau of Reclamation
For an additional amount for the ``Upper Colorado River
Basin Fund'' for the Glen Canyon project, not to exceed $10
million; and for the Trinity River division of the Central
Valley project, not to exceed $10 million; to be derived by
transfer from any definite annual appropriations available to
the Department of the Interior for the fiscal year 1958 and
from the appropriation ``Construction and Rehabilitation'':
Provided, That no part of any funds allocated to these two
project activities shall be used for contracts not in effect as
of February 20, 1958.
Mr. [John] Taber [of New York]: Mr. Chairman, I make a point of
order against the paragraph beginning on line 20, page 14, and
ending on page 15, line 7, on the ground that it changes existing
law and is legislation on an appropriation bill.
Mr. [Clarence] Cannon [of Missouri]: We concede the point of
order, Mr. Chairman.
The Chairman: (3) The Chair sustains the point of
order.
---------------------------------------------------------------------------
3. Francis E. Walter (Pa.).
---------------------------------------------------------------------------
Sec. 30.9 Language in a general appropriation bill authorizing the
President to allocate a certain sum from funds made available by
the Emergency Relief Appropriations Act of 1937 was held to be
legislation and not in order.
On Aug. 17, 1937,(4) during consideration in the
Committee of the Whole of the third deficiency appropriation bill (H.R.
8245), the following point of order was raised:
---------------------------------------------------------------------------
4. 81 Cong. Rec. 9171, 9172, 75th Cong. 1st Sess.
---------------------------------------------------------------------------
Mr. [Harry L.] Englesbright [of California]: Mr. Chairman, I
make the point of order against that portion of the title appearing
on page 18, beginning on line 5, and reading as follows:
Yosemite National Park, Calif.: For the acquisition of
certain lands, including expenses incidental thereto, as set
forth in the act approved July 9, 1937 (Public, No. 195, 75th
Cong.), the President is authorized to allocate not to exceed
$2,005,000, from funds made available by section 1 of the
Emergency Relief Appropriation Act of 1937, such amount having
been heretofore earmarked for such purpose.
That it is legislation on an appropriation bill, that it is
directory in character, that it changes existing law, and is
unauthorized.
If the Chair will permit, may I call the attention of the Chair
to certain authorities?
Mr. [Clifton A.] Woodrum [of Virginia]: Mr. Chairman, if the
matter is subject to a point of order, there is no use prolonging
the agony.
The Chairman: (5) The Chair is ready to rule.
---------------------------------------------------------------------------
5. Claude V. Parsons (Ill.).
---------------------------------------------------------------------------
The language in this paragraph seeks to authorize the President
to allocate funds not heretofore allocated to this park. This is
purely legislation
[[Page 5749]]
upon an appropriation bill. Therefore, the point of order is
sustained with reference to that portion of the title ``Department
of the Interior'' which appears on page 18, lines 5 to 12,
inclusive, under the heading, ``National Park Service.''
Continuation of Previous Appropriations; New Purpose
Sec. 30.10 Language in a supplemental appropriation bill which is
applicable to funds appropriated in another act constitutes
legislation and is not in order.
On June 29, 1959, (6) during consideration in the
Committee of the Whole of a supplemental appropriation bill (H.R.
7978), a point of order was raised against the following provision:
---------------------------------------------------------------------------
6. 105 Cong. Rec. 12132, 12133, 86th Cong. 1st Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
Department of Commerce
Bureau of the Census
Salaries and Expenses
The appropriation granted under this head for the fiscal
year 1960 shall be available to finance, through advances or on
a reimbursable basis, the procurement of materials, services,
or costs of activities which relate to, or benefit, two or more
appropriations to the Bureau of the Census.
Mr. [Joseph F.] Holt [of California]: Mr. Chairman, I make the
point of order that the following language, on page 7, lines 11 to
15, ``The appropriation granted under this head for the fiscal year
1960 shall be available to finance, through advances or on a
reimbursable basis, the procurement of materials, services, or
costs of activities which relate to, or benefit, two or more
appropriations to the Bureau of the Census'' constitutes
legislation on an appropriation bill and is subject to a point of
order.
It refers to funds that are not in this bill but in another;
and I noted in the report that the Comptroller General expresses
the opinion that specific legislative authorization should be
obtained. I maintain that the place to obtain it is not here but in
the legislative committee.
The Chairman: (7) does the gentleman from Texas
desire to be heard on the point of order?
---------------------------------------------------------------------------
7. Paul J. Kilday (Tex.).
---------------------------------------------------------------------------
Mr. [Albert] Thomas [of Texas]: I might say that the committee
had no deep feeling one way or the other on this provision. It was
inserted in the bill because the Bureau of the Budget said the
Census Bureau must have this language in order to expend their own
funds. We are merely trying to help the agency out. It does not
call for 5 cents expenditure; it does not call for either an
increase or a decrease in the appropriation. It is merely the way
costs are applied within the agency.
The Chairman: The Chair is prepared to rule. The point of order
is made that the following language, appearing on page 7, lines 11
to 15, ``The appropriation granted under this head for the fiscal
year 1960 shall be available to finance, through advances or on
[[Page 5750]]
a reimbursable basis, the procurement of materials, services, or
costs of activities which relate to, or benefit, two or more
appropriations to the Bureau of the Census'' constitutes
legislation on an appropriation bill, and has no reference to the
bill before the Committee.
The Chair sustains the point of order.
Appropriation Continued Without Warrant Action
Sec. 30.11 Language in an appropriation bill for establishment of air-
navigation facilities providing that the appropriation for a
preceding year ``is hereby continued available without warrant
action'' and merged with this appropriation, was held unauthorized
by law.
On Mar. 16, 1945,(8) during consideration in the
Committee of the Whole of a general appropriation bill (H.R. 2603), a
point of order was raised against the following provision:
---------------------------------------------------------------------------
8. 91 Cong. Rec. 2370, 79th Cong. 1st Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
Establishment of air-navigation facilities: For the
acquisition and establishment by contract or purchase and hire
of aid-navigation facilities, including the equipment of
additional civil airways for day and night flying . . . the
alteration and modernization of existing air-navigation
facilities; the acquisition of the necessary sites by lease or
grant . . . and hire, maintenance, repair, and operation of
passenger-carrying automobiles, $9,400,000: Provided, That the
consolidated appropriation under this head for the fiscal year
1945 is hereby continued available without warrant action until
June 30, 1946, and is hereby merged with this appropriation,
the total amount to be disbursed and accounted for as one fund.
Mr. [Robert F.] Jones [of Ohio]: Mr. Chairman, a point of
order.
The Chairman: (9) The gentleman will state it.
---------------------------------------------------------------------------
9. Wilbur D. Mills (Ark.).
---------------------------------------------------------------------------
Mr. Jones: Mr. Chairman, I make a point of order against the
language appearing on page 58, line 16, ``without warrant action''
on the ground that it is an appropriation not authorized by law.
The Chairman: Does the gentleman from Michigan desire to be
heard on the point of order.
Mr. [Louis C.] Rabaut [of Michigan]: I concede the point of
order, Mr. Chairman.
The Chairman: The point of order is sustained.
Sec. 30.12 A provision in an appropriation bill for development of
landing areas making available funds from a prior appropriation
bill ``without warrant action'' was held unauthorized by law.
On Mar. 16, 1945,(10) during consideration in the
Committee of
[[Page 5751]]
the Whole of a general appropriation bill (H.R. 2603), a point of order
was raised against the following provision:
---------------------------------------------------------------------------
10. 91 Cong. Rec. 2373, 79th Cong. 1st Sess.
---------------------------------------------------------------------------
Development of landing areas: For completion of the program for
the construction, improvement, and repair of public airports for
national defense the consolidated appropriation under this head in
the Department of Commerce Appropriation Act, 1943; shall remain
available until June 30, 1946, without warrant action, and the
portion thereof available for administrative expenses shall be
available also for the operation, maintenance, and repair of
passenger-carrying automobiles, and not to exceed $3,000 for
printing and binding. . . .
Mr. [Robert F.] Jones [of Ohio]: Mr. Chairman, a point of
order. I make a point of order against the words on page 61, line
10, ``without warrant action'', that it is legislation on an
appropriation bill.
Mr. [Louis C.] Rabaut [of Michigan]: Mr. Chairman, I concede
the point of order.
The Chairman: (11) The Chair sustains the point of
order.
---------------------------------------------------------------------------
11. Wilbur D. Mills (Ark.).
---------------------------------------------------------------------------
Making Available Other Funds by Reference to the Budget Estimates
Submitted by the President
Sec. 30.13 Language in an appropriation bill appropriating for the
Office of the Solicitor, Department of Agriculture, a specific
amount ``together with such amounts from other appropriations or
authorizations as are provided in the . . . Budget . . . which
several amounts . . . as may be determined by the Secretary . . .
shall be transferred to . . . this appropriation,'' was conceded to
be legislation on an appropriation bill and held not in order.
On Apr. 27, 1950, (12) during consideration in the
Committee of the Whole of the Agriculture Department appropriation bill
(H.R. 7786), the following point of order was raised:
---------------------------------------------------------------------------
12. 96 Cong. Rec. 5913, 81st Cong. 2d Sess.
---------------------------------------------------------------------------
Mr. [Kenneth B.] Keating [of New York]: Mr. Chairman, I make a
point of order against the language on page 205, beginning with
line 8:
together with such amounts from other appropriations or
authorizations as are provided in the schedules in the Budget
for the current fiscal year for such expenses, which several
amounts or portions thereof, as may be determined by the
Secretary, not exceeding a total of $207,000, shall be
transferred to and made a part of this appropriation: Provided,
however, That if the total amounts of such appropriations or
authorizations for the current fiscal year shall at any time
exceed or fall below the amounts estimated, respectively,
therefor in the budget for such year, the amounts transferred
[[Page 5752]]
or to be transferred therefrom to this appropriation shall be
increased or decreased in such amounts as the Bureau of the
Budget, after a hearing thereon with representatives of the
Department, shall determine are appropriate to the requirements
as changed by such reductions or increases in such
appropriations or authorizations.
I make a point of order against all of the remainder of the
provision relating to the Office of Solicitor on the ground that
the provision therein contained is legislation on an appropriation
bill. . . .
The Chairman: (13) Does the gentleman from
Mississippi desire to be heard on the point of order?
---------------------------------------------------------------------------
13. Jere Cooper (Tenn.).
---------------------------------------------------------------------------
Mr. [Jamie L.] Whitten [of Mississippi]: Mr. Chairman, I can
only say that this is the usual and customary way of carrying these
funds. In fairness to the Chair, I think it does appear to be
legislation.
The Chairman: The Chair is prepared to rule.
The gentleman from New York has made a point of order against
the language appearing on page 205 beginning with the words
``together with such amounts'' in line 8 and through the remainder
of that paragraph, on the ground it is legislation on an
appropriation bill and in violation of the rules of the House. The
gentleman from Mississippi concedes the point of order; therefore,
the Chair sustains the point of order.
Transfers Within Department
Sec. 30.14 Language in an appropriation bill authorizing any
appropriation therein for the Treasury Department to be transferred
to any other appropriation for that department, with approval of
the Bureau of the Budget, and requiring the reporting of such
transfers to the Committees on Appropriations of the House and
Senate, was conceded to be legislation and ruled out on a point of
order.
On Apr. 5, 1965,(14) during consideration in the
Committee of the Whole of the Treasury and Post Office Departments
appropriation bill (H.R. 7060), Mr. H. R. Gross, of Iowa, made a point
of order against the provision described above, as being legislation on
an appropriation bill and bestowing authority not previously granted by
law. The following exchange then took place:
---------------------------------------------------------------------------
14. 111 Cong. Rec. 6869, 89th Cong. 1st Sess. The provision in question
stated: ``Not to exceed 2\1/2\% of any appropriation herein for
the Treasury Department . . . may be transferred with approval
of Bureau of the Budget, to any other appropriation of the
Department . . . and such transfers shall be reported promptly
to the Committees on Appropriations of the House and Senate.''
---------------------------------------------------------------------------
The Chairman: (15) Does the gentleman from Oklahoma
desire to be heard on the point of order?
---------------------------------------------------------------------------
15. John A. Blatnik (Minn.).
---------------------------------------------------------------------------
[[Page 5753]]
Mr. [Thomas J.] Steed [of Oklahoma]: Mr. Chairman, obviously
the language is subject to a point of order, if the gentleman
insists on his point of order.
The Chairman: The paragraph does contain legislation, as
maintained by the gentleman from Iowa; and the Chair sustains the
point of order.
Sec. 30.15 Language in an appropriation bill permitting the transfer of
any appropriation available to the Post Office Department for the
current fiscal year to be transferred to any other such
appropriation was ruled out as legislation.
On Apr. 5, 1965,(16) during consideration in the
Committee of the Whole of the Treasury and Post Office Departments
appropriation bill (H.R. 7060), a point of order was raised by Mr. H.
R. Gross, of Iowa, against the language described above. The following
exchange then took place:
---------------------------------------------------------------------------
16. 111 Cong. Rec. 6869, 89th Cong. 1st Sess.
---------------------------------------------------------------------------
The Chairman: (17) Does the gentleman from Oklahoma
desire to be heard on the point of order?
---------------------------------------------------------------------------
17. John A. Blatnik (Minn.).
---------------------------------------------------------------------------
Mr. [Thomas J.] Steed [of Oklahoma]: Mr. Chairman, this
language has been in the bill for many years. I believe the
gentleman will find that the transfer authority within this
Department is considerably different from the point he raised in
the case of the Treasury,(18) where there was
transferability between agencies.
---------------------------------------------------------------------------
18. See Sec. 30.14, supra.
---------------------------------------------------------------------------
The language probably is subject to a point of order, but it
can take from the Department the only device it has to cope with
unexpected and unforeseen changes in mail flow volume which can and
frequently do occur. That makes transferability almost vital to the
efficient functioning of the Department.
The Chairman: Does the gentleman from Iowa insist on his point
of order?
Mr. Gross: Mr. Chairman, I insist upon the point of order.
The Chairman: The paragraph does contain legislative matter,
and the point of order is sustained.
Transfers Between Departments
Sec. 30.16 A provision in a general appropriation bill authorizing the
head of any department of the government having funds available for
scientific investigations to transfer such funds, under certain
conditions, to the Interior Department for expenditure by such
department was held to be legislation and ruled out of order.
On May 2, 1951,(19) during consideration in the
Committee of the Whole of the Interior Department appropriation bill
(H.R. 3790), a
[[Page 5754]]
point of order was raised against the following provision:
---------------------------------------------------------------------------
19. 97 Cong. Rec. 4738, 82d Cong. 1st Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
Sec. 109. During the current fiscal year the head of any
department or establishment of the Government having funds
available for scientific and technical investigations within
the scope of the functions of the Department of the Interior
may, with the approval of the Secretary, transfer to the
Department such sums as may be necessary therefor, which sums
so transferred may be expended for the same objects and in the
same manner as sums appropriated herein but without their
limitations.
Mr. [John] Taber [of New York]: Mr. Chairman, I make a point of
order against the language in section 109 on the ground that it is
legislation upon an appropriation bill.
Mr. [Henry M.] Jackson of Washington: Mr. Chairman, we concede
the point of order.
The Chairman: (20) The point of order is sustained.
---------------------------------------------------------------------------
20. Wilbur D. Mills (Ark.).
---------------------------------------------------------------------------
Funds in Other Acts Available for New Purpose
Sec. 30.17 A section in a general appropriation bill requiring that
funds provided in other acts be available for employment of guards
for government buildings and conferring certain powers on those
guards and on the Postmaster General was conceded to be subject to
a point of order and was ruled out as in violation of Rule XXI
clauses 2 and 5 (5 now clause 6).
On Aug. 1, 1973,(1) during consideration in the
Committee of the Whole of the Department of the Treasury, Postal
Service, and Executive Office appropriation bill (H.R. 9590) for fiscal
1974, Mr. John D. Dingell, of Michigan, raised a point of order against
certain language in the bill:
---------------------------------------------------------------------------
1. 119 Cong. Rec. 27291, 93d Cong. 1st Sess.
---------------------------------------------------------------------------
Sec. 610. Funds made available by this or any other Act to
the ``Building management fund'' (40 U.S.C. 490(f)), and the
``Postal service fund'' (39 U.S.C. 2003), shall be available
for employment of guards for all buildings and areas owned or
occupied by the United States or the Postal Service and under
the charge and control of the General Services Administration
or the Postal Service, and such guards shall have, with respect
to such property, the powers of special policemen provided by
the first section of the Act of June 1, 1948 (62 Stat. 281; 40
U.S.C. 318), but shall not be restricted to certain Federal
property as otherwise required by the proviso contained in said
section, and, as to property owned or occupied by the Postal
Service, the Postmaster General may take the same actions as
the Administrator of General Services may take under the
provisions of sections 2 and 3 of the Act of June 1, 1948 (62
Stat. 281; 40 U.S.C. 318a, 318b) attaching thereto penal
consequences under the authority and within the limits provided
in section 4 of the Act of June 1, 1948 (62 Stat. 281; 40
U.S.C. 318c).
[[Page 5755]]
Mr. Dingell: Mr. Chairman, I make, again, the same point of
order against the entirety of section 610, beginning with line 4 on
page 36.
Mr. [Thomas J.] Steed [of Oklahoma]: Mr. Chairman, we concede
the point of order.
The Chairman: (2) The point of order is conceded and
sustained.
---------------------------------------------------------------------------
2. Richard Bolling (Mo.).
---------------------------------------------------------------------------
Sec. 30.18 A provision in an appropriation bill permitting an
appropriation previously made in another act to be used for a new
purpose was conceded to be legislation.
On Dec. 11, 1969,(3) during consideration in the
Committee of the Whole of a bill (H.R. 15209) making supplemental
appropriations for fiscal year 1970, Mr. H. R. Gross, of Iowa, raised a
point of order against certain language in the bill:
---------------------------------------------------------------------------
3. 115 Cong. Rec. 38541, 48542, 91st Cong. 1st Sess.
---------------------------------------------------------------------------
Members' Clerk Hire
After June 1, 1970, but without increasing the aggregate basic
clerk hire monetary allowance to which each Member and the Resident
Commissioner from Puerto Rico is otherwise entitled by law, the
appropriation for ``Members' clerk hire'' may be used for
employment of a ``student congressional intern'' in accord with the
provisions of House Resolution 416, Eighty-ninth Congress.
Mr. Gross: Mr. Chairman, I make a point of order against the
language on page 6, beginning with line 11 and through line 18, as
being legislation on an appropriation bill.
The Chairman: (4) Does the gentleman desire to be
heard in support of the point of order?
---------------------------------------------------------------------------
4. James G. O'Hara (Mich.).
---------------------------------------------------------------------------
Mr. Gross: I thought I made the point of order, Mr. Chairman.
The Chairman: Does the gentleman from Texas desire to be heard
on the point of order?
Mr. [George H.] Mahon [of Texas]: Mr. Chairman, the Committee
on Appropriations put this legislation in the bill for the purpose
of accommodating Members. It is subject to a point of order, and
the point of order is conceded.
The Chairman: The gentleman from Texas has conceded the point
of order, and the Chair sustains the point of order.
Funds Carried Forward for Same Purpose
Sec. 30.19 Where the bill providing an annual authorization for the
Coast Guard Reserve had not yet been enacted into law, an amendment
to a general appropriation bill containing funds for Coast Guard
Reserve training and providing that amounts equal to prior year
appropriations for that purpose should be transferred to
[[Page 5756]]
that appropriation was held to contain an unauthorized
appropriation in violation of Rule XXI clause 2, and a
reappropriation of unexpended balances in violation of Rule XXI
clause 5 (now clause 6).
On June 20, 1973,(5) during consideration in the
Committee of the Whole of the Department of Transportation
appropriation bill for fiscal 1974 [H.R. 8760], Mr. George H. Mahon, of
Texas, raised a point of order against an amendment offered by Mr.
Silvio O. Conte, of Massachusetts. Proceedings were as follows:
---------------------------------------------------------------------------
5. 119 Cong. Rec. 20538, 20539, 93d Cong. 1st Sess.
---------------------------------------------------------------------------
Amendment offered by Mr. Conte: Page 4, after line 23, insert:
Reserve Training
For all necessary expenses for the Coast Guard Reserve, as
authorized by law; maintenance and operation of facilities; and
supplies, equipment, and services; $25,000,000: Provided, That
amounts equal to the obligated balances against appropriations
for ``Reserve training'' for the two preceeding years shall be
transferred to and merged with this appropriation, and such
merged appropriation shall be available as one fund, except for
accounting purposes of the Coast Guard, for payment of
obligations properly incurred against such prior year
appropriations and against this appropriation. . . .
Mr. Mahon: Mr. Chairman, I insist on my point of order against
the amendment. The amendment, in my opinion, is legislation on an
appropriation bill and the funds are not authorized by law, so I
make the point of order against the amendment. . . .
The Chairman: (6) The Chair is prepared to rule.
---------------------------------------------------------------------------
6. John M. Murphy (N.Y.).
---------------------------------------------------------------------------
Clause 2, rule XXI, prohibits unauthorized items from being
included in amendments to a general appropriation bill, and also
clause 5, rule XXI, has a prohibition against the reappropriation
of unexpended balances of sums appropriated in prior years. The
amendment is subject to a point of order for these reasons and the
Chair sustains the point of order.
Funds Continued Available for Same Purpose
Sec. 30.20 In an appropriation bill a provision that ``the unexpended
balance of appropriations heretofore reserved for moving the
International Broadcasting Service to the District of Columbia or
its environs shall remain available for such purpose until December
31, 1954,'' was ruled out, being a reappropriation in violation of
Rule XXI clause 5 [now clause 6], the Chair also construing the
language to be legislation in violation of Rule XXI clause 2.
[[Page 5757]]
On Mar. 3, 1954,(7) the Committee of the Whole was
considering H.R. 8067, a State, Justice, and Commerce Departments
appropriation. Proceedings were as follows:
---------------------------------------------------------------------------
7. 100 Cong. Rec. 2600, 83d Cong. 2d Sess.
---------------------------------------------------------------------------
Mr. [John J.] Rooney [of New York]: Yes, Mr. Chairman. On page
49, lines 11 to 14, I make a point of order against that language.
The Chairman:(8) Will the gentleman explain his
point of order?
---------------------------------------------------------------------------
8. Leroy Johnson (Calif.).
---------------------------------------------------------------------------
Mr. Rooney: This would make available into another fiscal year
funds appropriated in the current year. There is no authority in
law for this.
The Chairman: Does the gentleman from Ohio wish to be heard on
the point of order?
Mr. [Cliff] Clevenger [of Ohio]: I concede the point of order,
Mr. Chairman.
The Chairman: The Chair thinks this is legislation on an
appropriation bill. Therefore, the point of order is sustained.
Transfer of Funds to Other Agencies of Government for Authorized Work
Sec. 30.21 A provision in a general appropriation bill permitting
reimbursement (or advance transfer) of funds therein between
federal agencies for purposes authorized by law is in order as a
direction to the reimbursing agency as to the manner in which such
funds are to be expended--where existing law permits the
reimbursing agency to requisition services of other federal
agencies.
On June 21, 1974,(9) during consideration of H.R 15472,
the Department of Agriculture, Environmental and Consumer Protection
appropriation bill, language authorizing the Environmental Protection
Agency to transfer funds to other federal agencies for certain services
rendered to the EPA was held not to change provisions of existing law
permitting reimbursements between agencies, where the Committee on
Appropriations cited statutory authority for such interagency
agreements.(10)
---------------------------------------------------------------------------
9. 120 Cong. Rec. 20592, 20593, 93d Cong. 2d Sess.
10. See 31 USC Sec. 686.
---------------------------------------------------------------------------
The Clerk read as follows:
Energy Research and Development
For energy research and development activities, including
hire of passenger motor vehicles; hire, maintenance, and
operation of aircraft; uniforms, or allowances therefor, as
authorized by section 5901-5902, United States Code, title 5;
services as authorized by 5 U.S.C. 3109, but at rates for
individuals not to exceed the per diem rate equivalent to the
[[Page 5758]]
rate of GS-18; purchase of reprints; library memberships in
societies or associations which issue publications to members
only or at a price to members lower than to subscribers who are
not members; $103,000,000, to remain available until expended:
[Provided, That the Environmental Protection Agency may
transfer so much of the funds appropriated herein as it deems
appropriate to other federal agencies for energy research and
development activities that they may be in a position to
supply, or to render:] Provided further, That the amount
appropriated for ``Energy Research and Development'' in the
Special Energy Research and Development Appropriation Act,
1975, shall be merged, without limitation, with this
appropriation: Provided further, That none of the funds
contained in this Act shall be used to fund the development of
automotive power systems: Provided further, That this
appropriation shall be available only within the limits of
amounts authorized by law for fiscal year 1975.
point of order
Mr. [John D.] Dingell [of Michigan]: Mr. Chairman, I rise to a
point of order.
The Chairman: (11) The gentleman will state it.
---------------------------------------------------------------------------
11. Sam M. Gibbons (Fla.).
---------------------------------------------------------------------------
Mr. Dingell: Mr. Chairman, I make a point of order against the
language at page 33, commencing with the word ``provided'' at line
17 down through the end of page 33, line 21.
The point of order, Mr. Chairman, is that the language
complained of constitutes legislation in an appropriation bill and
is, as such, violative of rule XXI, clause 2.
Mr. Chairman, I am prepared, at the convenience of the Chair,
to be heard on this point of order.
The Chairman: Does the gentleman from Mississippi desire to be
heard on the point of order?
Mr. [Jamie L.] Whitten [of Mississippi]: I do, Mr. Chairman.
Mr. Chairman, the basic authority for interagency agreements is
the Economy Act of 1932, which, subject to the limitation noted
below, permits the requisitioning of goods and services between
Federal agencies. Additionally, there are other statutes applicable
to EPA which authorize cooperation and coordination with other
Federal agencies, these include section 104(a), (b), (c), (i), (h),
(p), and (t) of the Federal Water Pollution Control Act; section
204 of the Solid Waste Disposal Act; section 102(b) and 103 of the
Clean Air Act; section 14(1) of the Noise Control Act of 1972; and
sections 20(a), 22(b); and 23(b) of the Federal Pesticide Control
Act of 1972.
So, the language to which the gentleman objects, while it might
be repetitious, is clearly authorized in numerous instances and is
not legislation on an appropriation bill, but a repetition of the
law as it now exists.
The Chairman: Does the gentleman from Michigan desire to be
heard further on his point of order?
Mr. Dingell: I do, Mr. Chairman.
Mr. Chairman, the point of order lies, not to the authority to
transfer, but the authority of the receiving agency. As the Chair
will note, the Environmental Protection Agency may transfer funds
as it deems appropriate to other Federal agencies for energy
research and development activities.
First of all, I am not aware of EPA having any development
responsibilities in any of the statutes cited. Sec
[[Page 5759]]
ond, I am not aware of any statutory authority for EPA to transfer
as it deems appropriate. This constitutes excessive authority far
beyond that existing in present law.
In addition to this, the agencies to whom EPA might transfer
funds are not identified, and it is not clear who will be the
recipient agencies or what energy research and development
activities they shall go into. This is far beyond the authorities
under existing law, and I believe that the burden under the Rules
of the House is upon the proponents of the legislation to establish
the authority under which: First, the funds shall be transferred;
and second, under which the activities referred to in the section
will be carried out.
One of the principal questions around which the point of order
revolves, Mr. Chairman, is the question of, First, who shall
conduct the activity; second, what shall be the activity conducted;
and third, under what authority will the agency's recipient of the
funds spent receive the funds and carry out the development and
research projects.
I believe there has been no legislation cited by my good friend
from Mississippi which would indicate the authority for other
agencies to receive the funds or to engage in development and
research activities.
The Chairman: The Chair is prepared to rule on the point of
order.
The Chair has listened to the arguments of the gentleman from
Michigan (Mr. Dingell) and the gentleman from Mississippi (Mr.
Whitten), and believes that the arguments are fully covered by
Cannon's Precedents, House of Representatives, volume 7, page 468,
section 1470, which states:
A proposition to transfer funds from one department of
government to another for the purposes authorized by law was
held not to involve legislation and to be in order in an
appropriation bill.
Such reimbursement authority, where shown to be authorized by
law is therefore in order.
The Chair overrules the point of order.(12)
---------------------------------------------------------------------------
12. Compare with Sec. Sec. 30.22 and 30.24, infra.
---------------------------------------------------------------------------
Transfer of Funds Specifically Authorized for One Agency to Other
Unspecified Agencies
Sec. 30.22 A paragraph in a general appropriation bill containing funds
for the official residence of the Vice President and permitting
advances, repayments, or transfers of those funds to other
departments or agencies to carry out those activities (where
existing law authorized appropriations only to the General Services
Administration) was conceded to change existing law and was ruled
out in violation of Rule XXI clause 2.
On June 14, 1976,(13) the following proceedings took
place dur
[[Page 5760]]
ing consideration of H.R. 14261 (Treasury, Postal Service, and general
government appropriations for fiscal 1977):
---------------------------------------------------------------------------
13. 122 Cong. Rec. 17854, 94th Cong. 2d Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
Official Residence of the Vice President
operating expenses
For the care, maintenance, repair and alteration,
furnishing, improvement, heating and lighting, including
electric power and fixtures, of the official residence of the
Vice President, $61,000: Provided, That advances or repayments
or transfers from this appropriation may be made to any
department or agency for expenses of carrying out such
activities.
point of order
Mr. [John D.] Dingell [of Michigan]: Mr. Chairman, a point of
order.
The Chairman: (14) The gentleman will state the
point of order.
---------------------------------------------------------------------------
14. B.F. Sisk (Calif.).
---------------------------------------------------------------------------
Mr. Dingell: Mr. Chairman, I make a point of order against the
language of the bill on page 8, lines 17 through 23, and page 9,
lines 1 and 2, as violative of rule XXI, clause 2, constituting
legislation in an appropriation bill, referring specifically to the
words following the word ``Provided'', at line 22, ``Provided, That
advances or repayments or transfers from this appropriation may be
made to any department or agency for expenses of carrying out such
activities.''
The Chairman: Does the gentleman from Oklahoma (Mr. Steed)
desire to be heard on the point of order?
Mr. [Thomas J.] Steed: Mr. Chairman, we concede the point of
order and again leave the responsibility on the shoulders of the
gentleman who raises it and we will try to make the final bill
comply therewith.
The Chairman: The gentleman from Oklahoma (Mr. Steed) concedes
the point of order. For that reason the point of order is
sustained, and the entire paragraph is stricken.
Sec. 30.23 A paragraph in a general appropriation bill providing for
advances, repayments, and transfers from the appropriation therein
to any department or agency was ruled out in violation of Rule XXI
clause 2 as constituting legislation on an appropriation bill.
On June 8, 1977,(15) the Committee of the Whole had
under consideration H.R. 7552, Departments of Treasury, Postal Service,
and general government appropriations for 1978.
---------------------------------------------------------------------------
15. 123 Cong. Rec. 17922, 17923, 95th Cong. 1st Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
Official Residence of the Vice President
operating expenses
For the care, maintenance, repair and alteration,
furnishing, improvement, heating and lighting, including
electric power and fixtures, of the official residence of the
Vice President, $61,000: Provided, That advances or repayments
or transfers from this appropriation may be made to any
[[Page 5761]]
department or agency for expenses of carrying out such
activities:
points of order
Mr. [Herbert E.] Harris [II, of Virginia]: Mr. Chairman, I make
a point of order against this portion of the bill on the basis
previously stated.
The Chairman: (16) Does the gentleman from Oklahoma
(Mr. Steed) desire to be heard on the point of order?
---------------------------------------------------------------------------
16. B.F. Sisk (Calif.).
---------------------------------------------------------------------------
Mr. [Thomas J.] Steed: I do, Mr. Chairman.
Mr. Chairman, in this case there is authorization for the item.
In the 93d Congress, Senate Joint Resolution 202, passed July 12,
1974, provides for the inclusion of this item in the bill. It is
Public Law 93-346.
The Chairman: Let the Chair direct a question to the gentleman
from Virginia (Mr. Harris) so that the gentleman may clarify his
point.
Against what portion of this paragraph does the gentleman make
his point of order?
Mr. Harris: Mr. Chairman, we are dealing with official
entertaining expenses in this item, and that is not authorized
under law.
The Chairman: To what line is the gentleman referring? Will the
gentleman from Virginia (Mr. Harris) explain it so we will know to
what specific lines of the paragraph he directs his point of order?
Mr. Steed: Mr. Chairman, if I may be heard, I believe the
gentleman from Virginia (Mr. Harris) made the point of order
against the entire item.
Mr. Harris: Mr. Chairman, this is the item on the Official
Executive Residence of the Vice President, Operating Expenses.
The Chairman: Let the Chair state to the gentleman from
Virginia (Mr. Harris) that there is authorization for
appropriations for the official residence of the Vice President, if
that is the point the gentleman is attempting to address in this
matter. Therefore, that portion of the paragraph would not be
subject to a point of order.
Mr. Harris: I thank the Chair.
The Chairman: The Chair, therefore, overrules the point of
order.
Mr. [Edward J.] Derwinski [of Illinois]: Mr. Chairman, I rise
to make a point of order.
The Chairman: The gentleman from Illinois (Mr. Derwinski) will
state his point of order.
Mr. Derwinski: Mr. Chairman, let me read this to be sure we are
speaking of the same item.
I make a point of order against the language of the bill on
page 8, lines 20 through 25, and on page 9, lines 1 and 2. That
item is entitled ``Official Residence of the Vice President--
Operating Expenses,'' and this language violates rule XXI, clause
2, of the Rules of the House. That is the basis for the point of
order.
Mr. Chairman, if I may be heard further, we have had previous
points of order sustained against this item, and, in fact, in last
year's appropriation bill a similar point of order was sustained.
The Chairman: Let the Chair state that the present occupant of
the chair was the occupant of the chair last year and considered
the proviso starting on line 25 of page 8 and continuing through
line 26 and lines 1 and 2 on page 9. On that basis the point of
[[Page 5762]]
order was sustained. However, the earlier designation, as the Chair
understood the statement of the gentleman from Virginia (Mr.
Harris), would not follow, because basically there is authority for
the Vice President's residence.
That is the reason the Chair is giving ample opportunity to the
Members to clarify the point of order. A point of order was in fact
sustained on the proviso mentioned last year. I understand the
gentleman from Illinois (Mr. Derwinski) is making a point of order
based on that proviso.
Mr. Steed: Mr. Chairman, if I may be heard on the point of
order, if we read section 3 of this act, it says that the Secretary
of the Navy shall, subject to the supervision and control of the
Vice President, provide for the staffing, upkeep, alteration, and
furnishing of an official residence and grounds for the Vice
President.
Mr. Chairman, I do not know what more authority we need.
The Chairman: The Chair will state that in line with the like
ruling last year, a paragraph in a general appropriation bill
containing funds for the official residence of the President and of
the Vice President and providing for advances, repayments or
transfers of those funds to other departments or agencies--not just
to General Services Administration--was conceded to change existing
law and was ruled out as being in violation of clause 2, rule XXI.
Therefore, on the basis of the proviso, the point of order
issustained against the entire paragraph.
Parliamentarian's Note: Under Public Law No. 93-346, appropriations
for the Vice President's residence are authorized only to GSA, and not
to other departments and agencies. If money is authorized only for a
purpose and not to an agency, the Chair's ruling would be different.
Transfer Among Accounts Upon Approval of Committee
Sec. Sec. 30.24 A paragraph in a general appropriation bill authorizing
the transfer of funds for allowances and expenses with the approval
of the Committee on Appropriations was conceded to constitute
legislation in violation of Rule XXI clause 2 and was stricken from
the bill on a point of order.
On Mar. 16, 1977,(17) the Committee of the Whole had
under consideration H.R. 4877, supplemental appropriations for fiscal
year 1977.
---------------------------------------------------------------------------
17. 123 Cong. Rec. 7747, 95th Cong. 1st Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
Such amounts as deemed necessary for the payment
ofallowances and expenses within this appropriation may be
transferred among accounts upon approval of the Committee on
Appropriations of the House of Representatives.
point of order
Mr. [Robert E.] Bauman [of Maryland]: Mr. Chairman, I make a
point of
[[Page 5763]]
order against the language on page 29, line 17 through 20,
inclusive, on the grounds that the language as it is written
constitutes legislation on an appropriation bill.
In previous instances where an appropriation bill has contained
similar language--and I emphasize the word ``similar''--the Chair
has held that it is permissible to allow language that would
transfer appropriations from one subhead to another in the same
enactment.
The language before us, if it is read carefully, makes it
rather clear that what is being permitted is the transfer of
amounts, and they may be transferred, as the language says, among
accounts upon approval.
It is not in fact an authorization to transfer amongst the
various moneys in this bill, but in fact could be used to authorize
the transfer of previously appropriated amounts not in this bill.
Therefore, it exceeds the authority of the committee to in fact
consider it.
I would make that point of order.
The Chairman: (18) Does the gentleman from Illinois
wish to be heard on the point of order?
---------------------------------------------------------------------------
18. Walter Flowers (Ala.).
---------------------------------------------------------------------------
Mr. [George E.] Shipley [of Illinois]: Mr. Chairman, I will say
to the gentleman from Maryland (Mr. Bauman) that this language has
been carried for several years in the bill and is subject to a
point of order. The committee will concede the point of order.
The Chairman: The gentleman from Illinois (Mr. Shipley)
concedes the point of order raised by the gentleman from Maryland
(Mr. Bauman) and the language is stricken from the bill.
Transfer of Defense ``Funds Available'' to State
Sec. 30.25 A paragraph in a general appropriation bill transferring
available funds from a department to another department and
directing the use to which those funds must be put was conceded to
be legislation in violation of Rule XXI clause 2, as well as a
reappropriation violating Rule XXI clause 6.
On Dec. 8, 1982,(19) during consideration in the
Committee of the Whole of the Department of Defense appropriation bill
(H.R. 7355), a point of order was sustained to a portion of that bill,
as follows:
---------------------------------------------------------------------------
19. 128 Cong. Rec. 29449, 29450, 97th Cong. 2d Sess.
---------------------------------------------------------------------------
Mr. [William] Nichols [of Alabama]: Mr. Chairman, I have a
point of order.
The portion of the bill to which the point of order relates is
as follows:
Sec. 793. Of the funds available to the Department of
Defense, $200,000 shall be transferred to the Department of
Education which shall grant such sum to the Board of Education
of the Highland Falls-Fort Montgomery, New York, central school
district. The funds transferred by this section shall be in
addition to any assistance to which the Board may be entitled
under subchapter 1, chapter 13 of Title 20 United States Code.
. . .
I make a point of order against section 793, which provides
appropria
[[Page 5764]]
tions without authorization, and constitutes legislation on an
appropriation bill, which I believe to be in violation of clause 2
of rule XXI. . . .
Mr. [Joseph P.] Addabbo [of New York]: . . . Mr. Chairman, the
section is subject to a point of order, but this is a special case.
These are children of men and women at West Point who are attending
the public schools. If these funds are not allocated, the school
will close and there will be no school for these young people to
attend. . . .
The Chairman Pro Tempore: 20 The gentleman insists
on his point of order, and the Chair is ready to rule.
---------------------------------------------------------------------------
20. Don Bailey (Pa.).
---------------------------------------------------------------------------
The Chair will have to rule that, for the reasons conceded, the
point of order to section 793 as stated by the gentleman from
Alabama (Mr. Nichols) is sustained.
CHAPTER 26
Unauthorized Appropriations; Legislation on Appropriation Bills
C. PROVISIONS AS ``CHANGING EXISTING LAW,'' GENERALLY
Sec. 31. Transfers or Disposition of Property
Transfer of Federal Property From One Agency to Another Without
Exchange of Funds
Sec. 31.1 A provision of a general appropriation bill authorizing the
transfer of title to power facilities from one agency of government
to another without exchange of funds was conceded and held to
constitute legislation in violation of Rule XXI clause 2.
On Apr. 24, 1951,(1) during consideration in the
Committee of the Whole of the Interior Department appropriation bill
(H.R. 3790), a point of order was raised against the following
provision:
---------------------------------------------------------------------------
1. 97 Cong. Rec. 4301, 82d Cong. 1st Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
Transfer of Certain Facilities, Denison Dam Project
The Secretary of the Army is hereby authorized to transfer
to the Secretary of the Interior under arrangements
satisfactory to said Secretaries, without exchange of funds,
all right, title, and interest, including rights-of-way, of the
Department of the Army in and to the Denison-Payne 132-kilovolt
transmission line.
Mr. [John] Taber [of New York]: Mr. Chairman, I make a point of
order against the language appearing in the bill beginning line 20,
page 4, over to line 2, page 5, on the ground that it is
legislation in an appropriation bill.
The Chairman: (2) Does the gentleman from Washington
(Mr. Jackson) desire to be heard on the point of order?
---------------------------------------------------------------------------
2. Wilbur D. Mills (Ark.).
---------------------------------------------------------------------------
Mr. [Henry M.] Jackson of Washington: Mr. Chairman, I concede
the point of order.
The Chairman: The point of order is sustained.
Excess Property to Department of the Interior
Sec. 31.2 A provision in a general appropriation bill author
[[Page 5765]]
izing transfers of excess property by federal agencies to the
Department of the Interior at the request of the Secretary of the
Interior without reimbursement or transfer of funds when required
by the Interior Department for operations conducted in territories
and island possessions was conceded to constitute legislation and
ruled out of order.
On May 2, 1951,(3) during consideration in the Committee
of the Whole of the Interior Department appropriation bill (H.R. 3790),
a point of order was raised against the following provision:
---------------------------------------------------------------------------
3. 97 Cong. Rec. 4739, 82d Cong. 1st Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
Sec. 111. Transfers to the Department of the Interior,
pursuant to the Federal Property and Administrative Services
Act of 1949, of equipment, material and supplies, excess to the
needs of Federal agencies may be made at the request of the
Secretary without reimbursement or transfer of funds when
required by the Department for operations conducted in
Territories and island possessions.
Mr. [Kenneth B.] Keating [of New York]: Mr. Chairman, I make a
point of order against section 111 on the ground that it is
legislation on an appropriation bill.
Mr. [Henry M.] Jackson of Washington: Mr. Chairman, I concede
the point of order.
The Chairman: (4)The point of order is sustained.
---------------------------------------------------------------------------
4. Wilbur D. Mills (Ark.).
---------------------------------------------------------------------------
Federal Property Transferred to Territory
Sec. 31.3 A provision in an appropriation bill authorizing property of
the Public Health Service to be transferred to the Territory of
Alaska without reimbursement in the discretion of the Surgeon
General was conceded to be legislation and held not in order.
On Mar. 25, 1952,(5) during consideration in the
Committee of the Whole of the federal security appropriation bill (H.R.
7151), a point of order was raised against the following amendment:
---------------------------------------------------------------------------
5. 98 Cong. Rec. 2859, 82d Cong. 2d Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
Disease and sanitation investigations and control,
Territory of Alaska: To enable the Surgeon General to conduct,
in the Service, and to cooperate with and assist the Territory
of Alaska in the conduct of, activities necessary in the
investigation, prevention, treatment, and control of diseases,
and the establishment and maintenance of health and sanitation
services pursuant to and for the purposes specified in sections
301, 311, 314 (without regard to the provisions of subsections
(d), (f), (h), and (j) and the limitations set forth in
subsection (c) of such section), 361,
[[Page 5766]]
363, and 704 of the Act, including the purchase of one
passenger motor vehicle, and hire, operation, and maintenance
of aircraft, $1,200,000: Provided, That property of the Public
Health Service located in Alaska and used in carrying out the
activities herein authorized may be transferred, without
reimbursement, to the Territory of Alaska at the discretion of
the Surgeon General.
Mr. [John] Phillips [of California]: Mr. Chairman, I wish to
make a point of order against the proviso appearing on page 21,
beginning with line 9; but pending the Chairman's ruling, I would
like to ask a question.
May I ask the chairman of the subcommittee, or the ranking
minority member, if either one can explain the provision which
gives the Surgeon General, at his own discretion, the right to
transfer property of the United States to the Territory of Alaska.
It seems to me a delegation of authority of the Congress,
especially when there is no indication of the value of the
property, might be dangerous. I cannot find anything in the report,
nor can I recall that there was anything in the bill of the
preceding session.
I make the point of order this is legislation on an
appropriation bill, and a delegation of authority. May I ask the
chairman what this is all about?
Mr. [John E.] Fogarty [of Rhode Island]: As far as the
committee is concerned, I may say that a point of order lies there
and we are willing to accept it. I cannot give the gentleman the
figures. . . .
The Chairman: (6) The gentleman from California [Mr.
Phillips] makes a point of order against the language on page 21,
line 9 through 13, beginning with the word ``Provided.'' The
gentleman from Rhode Island [Mr. Fogarty] concedes the point of
order. The point of order is sustained.
---------------------------------------------------------------------------
6. William M. Colmer (Miss.).
---------------------------------------------------------------------------
Appropriation of Property
Sec. 31.4 Existing law authorizing the appropriation of funds for a
certain purpose ``including U.S. contributions in funds or
otherwise'' does not permit inclusion in an amendment to a general
appropriation bill of language directly appropriating property in
lieu of funds, such a matter being within the legislative
jurisdiction of another committee of the House and not being an
appropriation of revenue.
On June 3, 1944,(7) during consideration in the
Committee of the Whole of a general appropriation bill (H.R. 4937), a
point of order was raised against the following amendment:
---------------------------------------------------------------------------
7. 90 Cong. Rec. 5246, 5247, 78th Cong. 2d Sess.
---------------------------------------------------------------------------
Mr. [Francis H.] Case [of South Dakota]: Mr. Chairman, I offer
an amendment.
The Clerk read as follows:
Amendment offered by Mr. Case: Page 5, line 11, strike out
``$450,000,000'' and insert ``$428,300,000 in funds and
61,740,000 pounds of raw wool from
[[Page 5767]]
stocks owned by the Commodity Credit Corporation.''
Mr. [Clarence] Cannon of Missouri: Mr. Chairman, I desire to
make a point of order against the amendment. It is not germane, and
is legislation on an appropriation bill. It involves legislation
pertaining to the appropriation of wool whereas the pending bill
relates exclusively to the appropriation of money.
Mr. Case: Mr. Chairman, may I be heard on the point of order?
The Chairman: (8) The Chair will hear the gentleman.
---------------------------------------------------------------------------
8. William M. Whittington (Miss.).
---------------------------------------------------------------------------
Mr. Case: Mr. Chairman, I have in my hand Public Law 267 of the
Seventy-eighth Congress, which is the U.N.R.R.A. Act, under which
the appropriation in this section is proposed. The first paragraph
of that Act reads as follows:
Resolved, etc., That there is hereby authorized to be
appropriated to the President such sums, not to exceed
$1,350,000,000 in the aggregate, as the Congress may determine
from time to time to be appropriate for participation by the
United States (including contributions in funds or otherwise
and all necessary expenses related thereto) in the work of the
United Nations Relief and Rehabilitation Administration.
Further, section 6 of the act specifically sets forth that
Congress may determine the character of our contributions as well
as the amount by using this language:
In adopting this joint resolution the Congress does so with
the following reservation:
``That in the case of the United States the appropriate
constitutional body to determine the amount and character and
time of the contributions of the United States is the Congress
of the United States.''
I submit to the Chair that the basic act under which this
entire appropriation is authorized specifically, in the first
paragraph, uses the words ``including contributions in funds or
otherwise.'' Unless something like raw wool or something else might
be offered as part of the aggregate of the $1,350,000,000, the
words ``or otherwise'' as contrasted with ``funds'' would have no
meaning.
That is buttressed by the language in section 6, which provides
that the Congress may determine the amount, which relates to the
aggregate, and the character. Obviously the word ``character'' is
intended to include contributions of character other than money.
Mr. Cannon of Missouri: The authorization for this
appropriation is Public Law 267 of the Seventy-eighth Congress, an
act which authorizes the appropriation of sums of money. We are
authorized under this law to appropriate money and nothing else.
Later on, after the money is appropriated then, as the gentleman
suggests, if you want to substitute commodities, that is
permissible, but the authorization is to appropriate money, and
money only.
Any proposition to appropriate commodities is not authorized by
law and is not germane to the bill.
Mr. Case: Mr. Chairman, I agree that the basic authorization
for this appropriation is Public Law 267, which is what I cited,
but the gentleman from Missouri read only a part of the first
paragraph and ignored the last part of it to which I called the
gentleman's at
[[Page 5768]]
tention, where it specifically provides for ``funds or otherwise'';
and he certainly ignored section 6, which reserved for Congress the
right to determine not only the amount but the character of the
contribution.
The Chairman: The authorization, as has been stated, is under
Public Law 267, Seventy-eighth Congress. The first paragraph of
that law reads:
That there is hereby authorized to be appropriated to the
President such sums, not to exceed $1,350,000,000 in the
aggregate as the Congress may determine from time to time to be
appropriate for participation by the United States (including
contributions in funds or otherwise).
The Chair is of the opinion that inasmuch as this is an
appropriation, and inasmuch as the Committee on Appropriations is
limited to making appropriations of money, this bill could provide
only for an appropriation of money, and that if Congress should
determine to make other property owned by the Government available,
it would have to be under legislation submitted to the Congress by
an appropriate committee.
In view of that interpretation, the Chair is constrained to
sustain the point of order.
Transfer of Facilities and Property Rights
Sec. 31.5 Language in an appropriation bill transferring certain
facilities of the Fort Peck Project, Montana, from the Department
of the Army to the Department of the Interior was conceded to be
legislation on an appropriation bill and held not in order.
On May 1, 1951,(9) during consideration in the Committee
of the Whole of the Interior Department appropriation bill (H.R. 3790),
the following point of order was raised:
---------------------------------------------------------------------------
9. 97 Cong. Rec. 4659, 82d Cong. 1st Sess.
---------------------------------------------------------------------------
Mr. [John] Taber [of New York]: Mr. Chairman, I make a point of
order against the language on page 18, lines 7 to 21, on the ground
that it is legislation on an appropriation bill.
The language is as follows:
Transfer of Certain Facilities, Fort Peck Project, Montana
The Secretary of the Army is hereby authorized to transfer
to the Department of the Interior without exchange of funds,
all of the right, title, and interest of the Department of the
Army in and to the following facilities, including rights-of-
way (except that portion of the rights-of-way within the Fort
Peck Reservoir area), but there shall be reserved the right to
use the power facilities for the purpose of transmitting power
to the Fort Peck project during emergency periods when the Fort
Peck power plant is not functioning: (a) the Fort Peck-Rainbow
(Great Falls) 161-kilovolt transmission line; (b) the Rainbow
(Great Falls) terminal facilities; and (c) the Fort Peck-
Whatley 50-kilovolt-transmission line and substation.
Mr. [Michael J.] Kirwan [of Ohio]: Mr. Chairman, I submit that
the point
[[Page 5769]]
of order made by the gentleman from New York comes too late.
The Chairman: (10) The point of order made by the
gentleman from New York (Mr. Taber) is timely. Does the gentleman
from Ohio desire to be heard on the point of order?
---------------------------------------------------------------------------
10. Wilbur D. Mills (Ark.).
---------------------------------------------------------------------------
Mr. Kirwan: Mr. Chairman, we concede the point of order.
The Chairman: The point of order is sustained.
District of Columbia, Transfer of Hospitals Between Agencies
Sec. 31.6 Language in the District of Columbia appropriation bill
appropriating for hospitals and sanatoria coupled with language
transferring hospitals and sanatoria from the Board of Public
Welfare to the Board of Commissioners was held to be legislative in
nature and not in order on an appropriation bill.
On Apr. 2, 1937,(11) The following proceedings took
place:
---------------------------------------------------------------------------
11. 81 Cong. Rec. 3108, 75th Cong. 1st Sess.
---------------------------------------------------------------------------
For the following hospital and sanatoria, which, on and
after July 1, 1937, shall be under the direction and control of
the health department of the District of Columbia and subject
to the supervision of the Board of Commissioners.
Mrs. [Mary T.] Norton [of New Jersey]: Mr. Chairman, I make the
point of order against the language on page 46 beginning in line 1,
after the word ``sanatoria'', ending with the word
``Commissioners'', in line 5 of the same page, that it is clearly
legislation on a general appropriation bill, which is contrary to
the rules of the House.
The Chairman: (12) Does the gentleman from
Mississippi desire to be heard on the point of order?
---------------------------------------------------------------------------
12. Jere Cooper (Tenn.).
---------------------------------------------------------------------------
Mr. [Ross A.] Collins [of Mississippi]: I do not, Mr. Chairman.
The Chairman: The gentlewoman from New Jersey makes a point of
order against certain language in the first paragraph on page 46.
Under existing law these hospitals and institutions are under the
Board of Public Welfare. This provision seeks to transfer these
hospitals and institutions to the Department of Health. It is
obviously legislation on a general appropriation bill.
The Chair therefore sustains the point of order.
No Property To Be Withheld From Distribution
Sec. 31.7 Where existing law directed a federal official to provide for
the sale of certain government property to private organizations in
``necessary'' amounts, but did not require that all such property
shall be distributed by sale, an amendment to a general
appropriation bill providing that no such property shall be
withheld from
[[Page 5770]]
distribution from qualifying purchasers was ruled out as
legislation requiring disposal of all property and restricting
discretionary authority to determine ``necessary'' amounts and not
constituting (as required by the Holman rule) a certain
retrenchment of funds in the bill.
On Aug. 7, 1978,(13) during consideration in the
Committee of the Whole of the Department of Defense appropriation bill
(H.R. 13635), a point of order was sustained against the following
amendment:
---------------------------------------------------------------------------
13. 124 Cong. Rec. 24707, 24708, 95th Cong. 2d Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
Amendment offered by Mr. John T. Myers [of Indiana]: On
page 8, after line 10, add the following new section:
None of the funds appropriated or otherwise made available
in this Act shall be obligated or expended for salaries or
expenses during the current fiscal year in connection with the
demilitarization of any arms as advertised by the Department of
Defense, Defense Logistics Agency sale number 31-8118 issued
January 24, 1978, and listed as ``no longer needed by the
Federal Government'' and that such arms shall not be withheld
from distribution to purchasers who qualify for purchase of
said arms pursuant to title 10, United States Code, section
4308. . . .
Mr. [Abner J.] Mikva [of Illinois]: Mr. Chairman, I make a
point of order on the amendment on the ground that I believe that
it is legislation within a general appropriation bill and,
therefore, violates the rules of the House. . . .
Mr. John T. Myers: Mr. Chairman, this is a simple limitation
amendment. It merely limits the Secretary of the Treasury to
continue to carry out existing law. It does not provide any new
law. It simply says that the Secretary of the Treasury shall carry
out the prevailing, existing law. . . .
Mr. [John M.] Ashbrook [of Ohio]: Mr. Chairman, rule 21, clause
2, of the Rules of the House [House Rules and Manual pages 426-427]
specifies that an amendment to an appropriation bill is in order if
it meets certain tests, such as:
First. It must be germane;
Second. It must be negative in nature;
Third. It must show retrenchment on its face;
Fourth. It must impose no additional or affirmative duties or
amend existing law.
First. [The amendment] is germane. As the amendment applies to
the distribution of arms by the Defense Logistics Agency, it is not
exclusively an Army of civilian marksmanship amendment, so should
not be placed elsewhere in the bill. . . .
Second. It is negative in nature. It limits expenditure of
funds by the Defense Department by prohibiting the destruction and
scrapping of arms which qualify for sale through the civilian
marksmanship program, which is a division of the executive created
by statute.
Third. It shows retrenchment on its face. Retrenchment is
demonstrated in
[[Page 5771]]
that the Department of Defense if prohibited from expending funds
to destroy surplus military arms, and that the arms previously
earmarked for destruction will be made available in accordance with
existing statute. . . . The House, in adding this amendment, will
secure additional funds for the Treasury which the General
Accounting Office has determined is adequate to pay costs of
handling the arms. For example, the M-1 rifles are to be sold at a
cost of $110 each. These are the arms most utilized by the civilian
marksmanship program. The Defense Department will not be required
to spend additional funds to process the sale of additional arms. .
. .
. . . [The amendment] does not impose additional or affirmative
duties or amend existing law. . . .
Regulations issued . . . AR 725-1 and AR 920-20 provide for the
issuance of arms by application and qualification through the
Director of Civilian Marksmanship. The DCM shall then submit sale
orders for the Armament Readiness Military Command [ARMCOM] to fill
the requests of these qualified civilians. Thus, the amendment
simply requires the performance of duties already imposed by the
Army's own regulation. . . .
Mr. Mikva: Mr. Chairman, I particularly call attention of the
Chair to the second half of the amendment, which imposes an
affirmative duty on the Secretary, saying that such arms shall not
be withheld from distribution to purchasers who qualify for
purchase of said arms pursuant to title 10, United States Code,
section 4308.
Under the general existing law, there are all kinds of
discretions that are allowed to the Secretary to decide whether or
not such arms shall be distributed. Under this amendment, the
existing law is to be changed and those arms may not be withheld.
The practical purpose is to turn loose 400,000 to 500,000 rifles
into the body politic.
But the parliamentary effect is clearly to change the existing
law under which the Secretary can exercise all kinds of discretion
in deciding whether or not those arms will be distributed. Under
this amendment it not only limits the fact that the funds may be
obligated but it specifically goes on to affirmatively direct the
Secretary to distribute such arms under title X, which is an
affirmative obligation, which is exactly the kind of obligation the
rules prohibit, and I renew my point of order. . . .
The Chairman:(14) The Chair is ready to rule.
---------------------------------------------------------------------------
14. Daniel D. Rostenkowski (Ill.).
---------------------------------------------------------------------------
The Chair has read the section to which the gentleman refers,
title 10, United States Code, section 4308, and is of the opinion
that it does not require that all firearms be distributed to
qualified purchasers. The Chair further feels that while the first
part of the amendment is a limitation, the last part of the
amendment is a curtailment of Executive discretion, and the Chair
sustains the point of order.
CHAPTER 26
Unauthorized Appropriations; Legislation on Appropriation Bills
C. PROVISIONS AS ``CHANGING EXISTING LAW,'' GENERALLY
Sec. 32. Appropriations Prior to or Beyond Fiscal Year
Statutes provide that appropriations in annual appropriation acts
are not permanent. Thus, no spe
[[Page 5772]]
cific or indefinite appropriation made subsequent to Aug. 24, 1912, in
any regular annual appropriation act shall be construed to be permanent
or available continuously without reference to a fiscal year unless it
belongs to one of the following four classes: ``Rivers and harbors,''
``lighthouses,'' ``public buildings,'' and ``pay of the Navy and Marine
Corps,'' or unless it is made in terms expressly providing that it
shall continue to be available beyond the fiscal year covered by the
appropriation act in which it is contained.(15) Except as
otherwise provided by law, all balances of appropriations contained in
the annual appropriation bills and made specifically for the service of
any fiscal year shall only be applied to the payment of expenses
properly incurred during that year, or to the fulfillment of contracts
properly made within that year.(16) Thus, provisions in
general appropriation bills which make funds available for the payment
of obligations chargeable against prior appropriations are legislative
in character. But appropriations for public buildings are available
until completion of the work. A statute provides:(17)
---------------------------------------------------------------------------
15. 31 USC Sec. 1301.
16. 31 USC Sec. 1502.
17. 31 USC Sec. 1307.
---------------------------------------------------------------------------
All moneys appropriated for the construction of public
buildings shall remain available until the completion of the work
for which they are, or may be, appropriated; and upon the final
completion of each or any of said buildings, and the payment of all
outstanding liabilities therefor, the balance or balances remaining
shall be immediately covered into the
Treasury. -------------------
General Rule--Public Building Construction Funds
Sec. 32.1 Although it is generally not in order in a general
appropriation bill to require that funds therein shall be
``available until expended'' or beyond the fiscal year covered by
the bill unless the authorizing law contains that provision, such
language may be included where other existing law can be
interpreted to permit that availability. Thus, a provision in a
general appropriation bill that funds therein for the construction
of the west front of the U.S. Capitol shall ``remain available
until expended'' was held not to constitute legislation in
violation of Rule XXI clause 2 where an existing law provided that
funds for public building construction shall remain available until
the completion of the work.
[[Page 5773]]
On Apr. 17, 1973,(18) during consideration in the
Committee of the Whole of the legislative branch appropriation bill
[H.R. 6691], a point of order was raised against a provision as
follows:
---------------------------------------------------------------------------
18. 119 Cong. Rec. 12781, 12782, 93d Cong. 1st Sess.
---------------------------------------------------------------------------
Mr. [J. Edward] Roush [of Indiana]: Mr. Chairman, I have a
point of order against the language found on page 17 of the bill,
lines 14 through 22.
The portion of the bill to which the point of order relates is
as follows:
Extension of the Capitol
For an amount, additional to amounts heretofore
appropriated, for ``Extension of the Capitol'', in substantial
accordance with plans for extension of the West Central front
heretofore approved by the Commission for Extension of the
United States Capitol, to be expended as authorized by law, by
the Architect of the Capitol under the direction of such
Commission, $58,000,000, to remain available until expended.
Mr. Roush: Mr. Chairman, I would like to be heard on the point
of order.
The Chairman: (19) The Chair will hear the
gentleman.
---------------------------------------------------------------------------
19. John M. Murphy [N. Y.].
---------------------------------------------------------------------------
Mr. Roush: Mr. Chairman, my point of order is based upon these
following facts: The appropriation as proposed lacks legislative
authority and, secondly, the language ``$58,000,000 to remain
available until expended'' constitutes legislation on a general
appropriation bill.
Mr. Chairman, I point to rule XXI [which] prohibits an
appropriation in a general appropriation bill unless previously
authorized [as well as] provisions changing existing law. I will
take my second point first, Mr. Chairman, the prohibition against
changing existing law.
I would refer to the appropriation bill last year, which would
be Public Law 92-342, under the section ``Extension of the
Capitol:''
Funds available under this appropriation may be used for
the preparation of preliminary plans for the extension of the
west central front: Provided, however, That no funds may be
used for the preparation of the final plans or initiation of
construction of said project until specifically approved and
appropriated therefor by the Congress.
I point out to the Chairman that the plans have not been
specifically approved.
Second, Mr. Chairman, I would point to an old provision of the
law which is found in the United States Code, 1970 edition, title
40, section 162 (providing that) no change in the architectural
features of the Capitol Building or landscape features of the
Capitol Grounds shall be made except on plans to be approved by the
Congress.
Now, Mr. Chairman, I am again going back to rule XXI. The
question then arises as to whether or not the Congress has passed
authorizing legislation. Mr. Chairman, I have searched this matter
diligently and the only authority that I can find for the extension
of the west front of the Capitol necessarily has to be inferred
from the language of a bill which was passed in 1955. I would like
to read that section of that bill. Again it is entitled ``Extension
of the Capitol'':
[[Page 5774]]
The Architect of the Capitol is hereby authorized, under
the direction of a Commission for Extension of the United
States Capitol . . . to provide for the extension,
reconstruction, and replacement of the central portion of the
United States Capitol in substantial accordance with scheme B
of the architectural plan submitted by a joint commission of
Congress and reported to Congress on March 3, 1905 (House
Document numbered 385, Fifty-eighth Congress), but with . . .
modifications and additions . . .
Mr. Chairman, I submit that this is the authority for the
extension of the East Front and Scheme B is the key reference in
the 1955 statute, and those words are in substantial accord with
Scheme B of the architectural plan, et cetera. Scheme B, as it is
referred to, provides that the building--referring to the Capitol
Building--should be projected eastward 32 feet, 6 inches from the
wall of the Supreme Court and statuary hall--should be projected
eastward, Mr. Chairman.
The question then arises can authority be inferred? Certainly
there is no specific authority granted by this authority by
inferring from that wording, which affects the rest of Scheme B.
And I respectfully submit that the answer is ``no,'' that that is
not the effect of the statute. It is not another program, it is not
another sentence, it is a continuation of the same sentence, and
the only possible inference is that the language was inserted to
implement Scheme B, which calls for an extension of the East Front.
Finally, Mr. Chairman, the bill provides for the appropriation
of $58 million, to remain available until expended. The precedents
of the House are explicit that an appropriation made available
until expended is in the nature of legislation and not in order on
a general appropriations bill, and thus is in violation of rule 21.
. . .
The Chairman: Does the gentleman from Texas (Mr. Casey) desire
to be heard on the point of order?
Mr. [Bob] Casey of Texas: Mr. Chairman, I do.
Mr. Chairman, this project is authorized, and I would point out
that the gentleman from Indiana (Mr. Roush) who is making the point
of order, failed to read all of Public Law 242 of the 84th
Congress.
The law reads:
Extension of the Capitol: The Architect of the Capitol is
hereby authorized. . . .
Et cetera.
In substantial accordance with Scheme B of the
architectural plan submitted by a joint commission of Congress
and reported to Congress on March 3, 1905 (House Document
Numbered 385, Fifty-Eighth Congress), but with such
modifications and additions, including provisions for
restaurant facilities and such other facilities in the Capitol
Grounds, together with utilities. . . .
It does not just refer to one item. I think this gives great
latitude.
Together with utilities, equipment, approaches, and other
appurtenant or necessary items . . . there is hereby
appropriated $5,000,000, to remain until expended: Provided,
that the Architect of the Capitol under the direction of said
commission and without regard to the provisions of section 3709
of the Revised Statutes, as amended, is authorized to enter
into contracts.
Et cetera.
[[Page 5775]]
This law was amended February 14, 1956, and there was added
this amendment under ``Extension of the Capitol.'' This was Public
Law 406, 84th Congress:
The paragraph entitled ``Extension of the Capitol'' in the
Legislative Appropriation Act, 1956, is hereby amended by
inserting after the words ``to remain available until
expended'' and before the colon, a comma and the following:
``and there are hereby authorized to be appropriated such
additional sums as may be determined by said Commission to be
required for the purposes hereof.
Mr. Chairman, I think it is quite clear that the authority is
here for any and all changes under plan B as put together in the
architectural plan, because there is language in there ``with such
modifications and additions'' as well as ``other appurtenant or
necessary items, as may be approved by said Commission,'' and the
Capitol building includes not only the East Front, but it includes
the West Front. I submit the point of order is not well taken.
The Chairman: The Chair is ready to rule. . . .
The Chair has listened carefully to the debate and the laws and
precedents cited by the gentlemen from Indiana and Texas; and the
Chair has had an opportunity to examine the authorizing legislation
for the West Front construction, and would note that in 1956--
Public Law 84-406--the basic statute was amended to provide that--
There are hereby authorized to be appropriated such
additional sums as may be determined by said Commission to be
required for the purposes hereof.
The Chair would also call the Members' attention to the
provisions of 31 U.S. Code 682,(20) which provides that
all moneys appropriated for construction of public buildings shall
remain available until the completion of the work for which they
are, or may be appropriated. Therefore, the inclusion of the
language ``to remain available until expended'' in the
appropriation bill, although not contained in the basic authorizing
statute for the West Front, cannot be considered a change in
existing law since other existing law--31 U.S.C. 682--already
permits funds for public building construction to remain available
until work is completed.
---------------------------------------------------------------------------
20. Now 31 USC Sec. 1307.
---------------------------------------------------------------------------
The gentleman from Indiana also contends that Public Law 92-342
requires ``specific'' approval by Congress of preparation of final
plans or initiation of construction prior to an appropriation
therefor. The Chair has examined the legislative history of the
provision relied upon by the gentleman from Indiana in support of
his argument that the appropriation must be specifically approved
by Congress prior to the appropriation, and it is clear from the
debate in the Senate on March 28, 1972, that approval in an
appropriation bill was all that was required by the provision in
Public Law 92-342. The Chair feels that there is sufficient
authorization contained in Public Law 92-342 as amended by Public
Law 84-406 for the appropriation contained in the pending bill, and
that no further specific authorization is required prior to an
appropriation for final plans and construction for the West Front.
For these reasons the Chair overrules the point of order.
[[Page 5776]]
Parliamentarian's Note: As noted in the introduction to this
section, certain exceptions are made to the general provision of 31 USC
Sec. 718 that ``no specific or indefinite appropriation . . . in any
regular annual appropriation Act shall be construed to be permanent or
available continuously without reference to a fiscal year,'' one of the
exceptions being appropriations for ``public buildings.''
Where Authorization for Continued Availability is Lacking
Sec. 32.2 An appropriation for railroad research ``to remain available
until expended'' was conceded to be legislation on an appropriation
bill where the authorizing statute (Pub. L. No. 91-458) did not
make those funds available beyond the fiscal year for which
appropriated.
On July 14, 1971,(1) during consideration in the
Committee of the Whole of the Department of Transportation
appropriation bill (H.R. 9667), the following point of order was
raised:
---------------------------------------------------------------------------
1. 117 Cong. Rec. 24913, 92d Cong. 1st Sess.
---------------------------------------------------------------------------
Mr. [Durward G.] Hall [of Missouri]: Mr. Chairman, I make a
point of order as to the language on page 16, lines 1 through 3, as
being an unauthorized appropriation and violating rule XXI, clause
2.
The portion of the bill reads as follows:
Railroad Research
For necessary expenses for conducting railroad research
activities, $7,000,000, to remain available until expended.
The Chairman: (2) Does the gentleman from California
desire to be heard on the point of order?
---------------------------------------------------------------------------
2. Edmond Edmondson (Okla.).
---------------------------------------------------------------------------
Mr. [John J.] McFall [of California]: Mr. Chairman, I should
like to be heard on the point of order.
The point of order which the gentleman from Missouri makes is
with reference to the language that indicates the amount of $7
million for conducting railroad research activities will remain
available until expended. The phrase ``to remain available until
expended'' is legislation on an appropriation bill. Just as soon as
I can get an amendment ready I will offer an amendment which will
preserve the $7 million and leave out the ``to remain available
until expended.''
The Chairman: Does the gentleman from California concede the
point of order?
Mr. McFall: I concede the point of order, Mr. Chairman.
The Chairman: The point of order is sustained.
Characterization of an Appropriation as ``Final''
Sec. 32.3 In an appropriation bill, where an appropriation is
[[Page 5777]]
authorized by a law which would remain effective in the future,
words designating an appropriation as ``a final appropriation'' for
``completing'' acquisition of certain land under authority of such
law were conceded to constitute legislation.
On Mar. 30, 1954,(3) during consideration in the
Committee of the Whole of the independent offices appropriation bill
(H.R. 8583), a point of order was raised against the following
provision:
---------------------------------------------------------------------------
3. 100 Cong. Rec. 4128, 83d Cong. 2d Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
Land acquisition, National Capital park, parkway, and
playground system: As a final appropriation under authority of
the act of May 29, 1930 (46 Stat. 482), as amended, for
necessary expenses for the National Capital Planning Commission
for completing acquisition of land for the park, parkway, and
playground system of the National Capital, to remain available
until expended, $545,000, of which (a) $135,000 shall be
available for the purposes of section 1(a) of said act of May
29, 1930, (b) $126,000 shall be available for the purposes of
section 1(b) thereof, and (c) $284,000 shall be available for
the purposes of section 4 thereof: Provided, That not exceeding
$26,450 of the funds available for land acquisition purposes
shall be used during the current fiscal year for necessary
expenses of the Commission (other than payments for land) in
connection with land acquisition.
Mr. [Howard W.] Smith of Virginia: Mr. Chairman, a point of
order.
The Chairman: (4) The gentleman will state it.
---------------------------------------------------------------------------
4. Louis E. Graham (Pa.).
---------------------------------------------------------------------------
Mr. Smith of Virginia: Mr. Chairman, I desire to interpose a
point of order to the language contained in line 17 on page 35:
``as a final appropriation''; and on line 20 against the word
``completing.''. . .
Mr. [John] Phillips [of California]: I will concede the point
of order.
The Chairman: The Chair sustains the point of order.
Funds ``To Be Immediately Available''
Sec. 32.4 Under the modern practice the provision that an appropriation
shall be immediately available is not subject to a point of order:
language in the independent offices appropriation bill making the
appropriations for administrative expenses for public works advance
planning immediately available was held in order.
On Feb. 8, 1945,(5) during consideration in the
Committee of the Whole of the independent offices appropriation bill
(H.R. 1984), a point of order was raised against the following
amendment:
---------------------------------------------------------------------------
5. 91 Cong. Rec. 942, 79th Cong. 1st Sess.
---------------------------------------------------------------------------
Mr. [Clifton A.] Woodrum of Virginia: Mr. Chairman, I offer an
amendment.
[[Page 5778]]
The Clerk read as follows:
Amendment offered by Mr. Woodrum of Virginia: On page 18,
line 12, insert:
``Public works advance planning: Toward accomplishing the
provisions of title V of the War Mobilization and Reconversion
Act of 1944, $5,000,000, of which not to exceed 4 percent shall
be available for administrative expenses necessary therefor, to
be immediately available and to remain available until June 30,
1946, including salary for not to exceed one position at
$10,000 per annum; personal services and rent in the District
of Columbia; printing and binding; purchase and exchange of
lawbooks and books of reference; purchase (not exceeding 5) and
repair, maintenance, and operation of passenger automobiles;
and travel expenses (not to exceed $10,000).''
Mr. [Francis H.] Case of South Dakota: Mr. Chairman, I make a
point of order against certain language in the amendment just
offered reading, ``to be immediately available,'' and call the
attention of the Chair to the fact that the bill is an
appropriation bill for the fiscal year ending June 30, 1946. I
direct this point of order merely against the language, ``to be
immediately available.''
The Chairman: (6) Does the gentleman from Virginia
desire to be heard on the point of order?
---------------------------------------------------------------------------
6. William M. Whittington (Miss.).
---------------------------------------------------------------------------
Mr. Woodrum of Virginia: Mr. Chairman, the amendment offered
conforms to the point of order which the gentleman made to the
paragraph originally. The language in line 17, ``to be immediately
available,'' had not been complained of by the gentleman from South
Dakota.
The Chairman: The gentleman from South Dakota [Mr. Case] makes
a point of order against the language indicated by the gentleman
from Virginia, ``to be immediately available.'' Does the gentleman
from Virginia desire to be heard further?
Mr. Woodrum of Virginia: I do not, Mr. Chairman. . . .
The Chairman: The Chair is ready to rule. In volume 7, Cannon's
Precedents, section 1120, the Chair finds the following language:
Under the modern practice the provision that an
appropriation shall be immediately available is not subject to
a point of order.
The Chair overrules the point of order.
Permanent Appropriations
Sec. 32.5 Language in a general appropriation bill making
appropriations available beyond the current fiscal year is
legislation and not in order: appropriations for fulfilling
treaties with certain Indians on a permanent basis and
appropriations from proceeds from power projects on a similar basis
have been conceded as legislation and not in order.
On May 3, 1950,(7) during consideration in the Committee
of the Whole of the Agriculture Depart
[[Page 5779]]
ment appropriation bill (H.R. 7786), the following point of order was
raised:
---------------------------------------------------------------------------
7. 96 Cong. Rec. 6304, 81st Cong. 2d Sess.
---------------------------------------------------------------------------
Mr. [Ben F.] Jensen [of Iowa]: Mr. Chairman, I make a point of
order against the language appearing on page 227, lines 13 to 18,
inclusive, and on page 227, lines 19 to 25, inclusive, and page
228, lines 1 and 2 on the ground that it is permanent legislation
on an appropriation bill.
The language to which the point of order is made is as follows:
Claims and Treaty Obligations
For fulfilling treaties with Senecas and Six Nations of New
York, Choctaws and Pawnees of Oklahoma, and payment to Indians
of Sioux reservations, to be expended as provided by law, such
amounts as may be necessary after June 30, 1950.
Proceeds from Power
After June 30, 1950, not to exceed the amount of power
revenues covered into the Treasury to the credit of each of the
power projects, including revenues credited prior to August 7,
1946, shall be available for the purposes authorized by section
3 of the act of August 7, 1946 (Public Law 647), as amended,
including printing and binding, in connection with the
respective projects from which such revenues are derived.
The Chairman: (8) Does the gentleman from Washington
desire to be heard on the point of order?
---------------------------------------------------------------------------
8. Jere Cooper (Tenn.).
---------------------------------------------------------------------------
Mr. [Henry M.] Jackson of Washington: Mr. Chairman, I concede
both points of order.
The Chairman: The Chair sustains the points of order.
Available to End of Next Fiscal Year
Sec. 32.6 Language in a supplemental appropriation bill providing funds
[to collect and publish certain statistics on voting] to be
available until the end of the next fiscal year, was conceded to be
legislation and ruled out on a point of order.
On Apr. 6, 1965,(9) During consideration in the
Committee of the Whole of a supplemental appropriation bill (H.R.
7091), a point of order was raised against the following provision:
---------------------------------------------------------------------------
9. 111 Cong. Rec. 7131, 7132, 89th Cong. 1st Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
Department of Commerce
Bureau of the Census
Registration and Voting Statistics
For expenses necessary for the collection, compilation, and
publication of statistics on registration and voting, in such
geographic areas as may be recommended by the Commission on
Civil Rights, as authorized by section 801 of the Civil Rights
Act of 1964 (78 Stat. 266), $7,500,000, to remain available
until December 31, 1966.
Mr. [Robert L. F.] Sikes [of Florida]: Mr. Chairman, I make a
point of order against the language on page 21, lines 2 through 9,
and ask to be heard on the point of order.
[[Page 5780]]
The Chairman: (10) The Chair recognizes the
gentleman from Florida [Mr. Sikes].
---------------------------------------------------------------------------
10. Oren Harris (Ark.).
---------------------------------------------------------------------------
Mr. Sikes: Mr. Chairman, the language in this section goes
beyond the period of time set forth in the bill H.R. 7091. The
preamble of this bill states that it is a bill making supplemental
appropriations for the fiscal year ending June 30, 1965. The
language on lines 2 through 9, page 21, proposes to have the funds,
$7.5 million, remain available until December 31, 1966. There is no
such authority in the basic law.
The Chairman: Does the gentleman from New York desire to be
heard?
Mr. [John J.] Rooney of New York: Mr. Chairman, the proposed
appropriation of $7.5 million contained in the bill for the Bureau
of the Census is for the purpose of a registration and voting
statistics survey covering the States of Alabama, Louisiana, and
Mississippi, to provide a count of all persons of voting age and a
determination of the following information for each such person:
``(1) citizenship, (2) residence, (3) years of school completed,
(4) race and color, (5) whether registered to vote in Federal
elections, (6) whether voted in the most recent statewide primary
election and general election in which Members of the U.S. House of
Representatives were nominated or elected.''
As appears at page 161 of the printed hearings on this pending
bill, the following questions were asked and the following answers
given concerning this requested $7.5 million appropriation:
Mr. Rooney: What is the legal authority for this proposed
activity of the Department of Commerce?
Mr. Eckler: Title VIII of the Civil Rights Act indicates
that the Secretary of Commerce shall promptly conduct a survey
to compile registration and voting statistics in such
geographic areas as may be recommended by the Commission on
Civil Rights.
I believe we have included a full text of title VIII,
section 801, in the material which was put into the record.
Mr. Rooney: Where do you get the authority for the
unlimited availability?
Mr. Imhoff: We have no specific authority for that, Mr.
Chairman.
In view of this, the gentleman from New York is reluctantly
constrained to concede that the gentleman's point of order is well
taken.
The Chairman: The Chair is ready to rule. . . .
The purpose of the bill is to make supplemental appropriations
for the fiscal year ending June 30, 1965. The language on page 21,
line 9, is ``to remain available until December 31, 1966'', which
goes beyond the purpose of the bill.
The point of order is sustained.
Available for Next Fiscal Year
Sec. 32.7 To a supplemental appropriation bill, an amendment to
increase a limitation on use of funds for administrative purposes
contained in another act and to make such funds available beyond
the current fiscal year was conceded to be legislation and
therefore was ruled out as not in order.
[[Page 5781]]
On May 7, 1957,(11) during consideration in the
Committee of the Whole of a supplemental appropriation bill (H.R. 7221)
for fiscal year 1957, a point of order was raised against the following
amendment:
---------------------------------------------------------------------------
11. 103 Cong. Rec. 6431, 6432, 85th Cong. 1st Sess.
---------------------------------------------------------------------------
Amendment offered by Mr. [DeWitt S.] Hyde [of Maryland]:
Page 5, after line 10, insert the following item:
``Administration Expenses, Employees' Life Insurance Fund
``The limitation under this head in the Independent Offices
Appropriation Act, 1957, on the amount made available from the
`Employees' life insurance fund,' for reimbursement to the
Civil Service Commission for administrative expenses incurred
in the administration of the Federal Employees' Group Life
Insurance Act, is increased from `$117,500' to `$194,000.'
``Not to exceed $23,000 of the funds in the `Employees' life
insurance fund' shall be available for reimbursement to the Civil
Service Commission during the fiscal year 1958, for administrative
expenses incurred by the Commission during that fiscal year in the
administration of said act, and such amount shall be in addition to
any amounts otherwise made available from the fund for such
expenses for the fiscal year 1958.''. . .
Mr. [Albert] Thomas [of Texas]: Mr. Chairman, very reluctantly
I must state that the committee insists on the point of order. . .
You will recall that the language, Mr. Chairman, does two
things that makes the amendment subject to a point of order. It
first attempts to increase the limitation, then in the next place
it attempts to take part of the funds so limited and transfer them
from that fund to the general administrative expense fund of the
Civil Service Commission.
No. 2. This is a deficiency appropriation bill for the fiscal
year 1957. The language attempts to carry the fund over and beyond
and into the fiscal year 1958; therefore it is over and beyond the
scope of the bill.
It is subject to a point of order on two counts.
The Chairman: (12) Does the gentleman from Maryland
wish to be heard on the point of order?
---------------------------------------------------------------------------
12. Frank N. Ikard (Tex.).
---------------------------------------------------------------------------
Mr. Hyde: Only to the extent of asking the very genial chairman
of the committee a question. I understand that the chairman is
objecting to this amendment not on its merit but on a technical
basis.
Mr. Thomas: Let us take one hurdle at a time. I am objecting
now on two scores.
Mr. Hyde: Mr. Chairman, I must bow to the wisdom of the
chairman. I recognize that the point of order is well taken.
The Chairman: The gentleman concedes the point of order?
Mr. Hyde: Yes.
The Chairman: The Chair sustains the point of order.
Available ``Each Fiscal Year Thereafter''; Permanent Appropriation
Sec. 32.8 Language in an appropriation bill making appro
[[Page 5782]]
priations beyond the current fiscal year is legislation: language
in the general appropriation bill making appropriations for the
Migratory Bird Conservation Fund for the current year ``and each
fiscal year thereafter'' from the sale of stamps was conceded to be
legislation and not in order.
On May 4, 1950,(13) during consideration in the
Committee of the Whole of a general appropriation bill (H.R. 7786), the
following point of order was raised:
---------------------------------------------------------------------------
13. 96 Cong. Rec. 6400, 81st Cong. 2d Sess.
---------------------------------------------------------------------------
Mr. [Ben F.] Jensen [of Iowa]: Mr. Chairman, I make a point of
order, on the ground it is permanent legislation on an
appropriation bill and not in accordance with the rules of the
House, to the language appearing in lines 18 to 24, page 246, and
reading as follows:
Migratory Bird Conservation Fund
For carrying into effect section 4 of the act of March 16,
1934, as amended (16 U.S.C. 718-718h), amounts equal to the
sums received during the current year and each fiscal year
thereafter from the proceeds from the sale of stamps, to be
warranted monthly and to remain available until expended.
The Chairman: (14) Does the gentleman from
Washington [Mr. Jackson] desire to be heard on the point of order?
---------------------------------------------------------------------------
14. Jere Cooper (Tenn.).
---------------------------------------------------------------------------
Mr. [Henry M.] Jackson of Washington: Mr. Chairman, I concede
the point of order and at the proper time will offer an amendment
in lieu of the language appearing at that point in the bill.
The Chairman: The gentleman from Iowa [Mr. Jensen] makes a
point of order against the language mentioned by him, the gentleman
from Washington [Mr. Jackson] concedes the point of order, and the
Chair sustains the point of order.
Fees and Royalties Hereafter Received; Permanent Appropriation
Sec. 32.9 Language in a general appropriation bill making fees and
royalties collected pursuant to law available beyond the current
fiscal year is legislation and not in order.
On May 3, 1950,(15) during consideration in the
Committee of the Whole of the Interior Department appropriation bill
(H.R. 7786), the following points of order were raised:
---------------------------------------------------------------------------
15 96 Cong. Rec. 6296, 6297, 81st Cong. 2d Sess.
---------------------------------------------------------------------------
Mr. [Ben F.] Jensen [of Iowa]: Mr. Chairman, I make a point of
order against the paragraph appearing on page 222, lines 18 through
25, and page 223, lines 1 through 3, which is as follows:
[[Page 5783]]
Range Improvements
The aggregate of all moneys received after June 30, 1950,
as range-improvement fees under the provisions of section 3 of
the Act of June 28, 1934 (43 U.S.C. 315) and 25 per centum of
all moneys received after June 30, 1950, under the provisions
of section 15 of said Act (in addition to all moneys received
during the fiscal year 1950 from either of such sources but not
yet appropriated) shall be available until expended for
construction, purchase, and maintenance of range improvement
pursuant to the provisions of sections 3 and 10 of said Act.
Mr. Jensen: . . . I make a point of order against the language
on page 223, lines 13 through 24, which language is as follows:
Payment to Oklahoma
Thirty-seven and one-half percent of the royalties received
after June 30, 1950 (in addition to 37\1/2\ percent of all
royalties received during the fiscal year 1950 but not yet
appropriated), from the south half of Red River in Oklahoma
under the provisions of the joint resolution of June 12, 1926
(44 Stat. 740), shall be available for payment to the State of
Oklahoma in lieu of all State and local taxes upon tribal funds
accruing under said act, to be expended by the State in the
same manner as if received under section 35 of the act approved
February 25, 1920 (30 U.S.C. 191).
I make a point of order against the language on page 224, lines
1 through 8, which language is as follows:
Leasing of Grazing Lands
The aggregate of all moneys received after June 30, 1950
(in addition to all moneys received during the fiscal year 1950
but not yet appropriated), from grazing fees for State, county,
or privately owned lands leased in accordance with the
provisions of the act of June 23, 1938 (43 U.S.C. 315m-4),
shall be available until expended for leasing of such lands.
I make a point of order against the language on page 224, lines
9 through 16, which language is as follows:
Payments to States (Grazing Fees)
Thirty-three and one-third percent of all grazing fees
received after June 30, 1950, from each grazing district on
Indian lands ceded to the United States for disposition under
the public-lands laws, shall be available for payment to the
State in which said lands are situated, in accordance with the
provisions of section 11 of the act of June 28, 1934, as
amended (43 U.S.C. 315j).
Mr. Chairman, I make the point of order that the language I
have indicated, in each instance, has the effect of making
appropriations on a permanent basis, which goes beyond the scope of
the bill and also constitutes legislation on an appropriation bill,
and, therefore, is not in order under the rules of the House.
Mr. [Henry M.] Jackson of Washington: Mr. Chairman, I concede
the points of order.
The Chairman: (16) The Chair sustains the points of
order made by the gentleman from Iowa [Mr. Jensen].
---------------------------------------------------------------------------
16. Jere Cooper (Tenn.).
---------------------------------------------------------------------------
Appropriation Available Until Expended
Sec. 32.10 A provision that an appropriation is ``to remain
[[Page 5784]]
available until expended'' constitutes legislation on an
appropriation bill and is not in order where such availability is
not authorized by law.
On Apr. 30, 1952,(17) during consideration in the
Committee of the Whole of the Agriculture Department appropriation bill
(H.R. 7314), a point of order was raised against the following
amendment:
---------------------------------------------------------------------------
17. 98 Cong. Rec. 4620, 82d Cong. 2d Sess.
---------------------------------------------------------------------------
Amendment offered by Mr. [Arthur L.] Miller of Nebraska: Page
9, after line 13 insert the following:
``Research Laboratory: For establishment of a research
laboratory, including acquisition of necessary land and the
preparation of plans and specifications for, and construction of
laboratory buildings and related facilities for research and study
of foot-and-mouth disease and other animal diseases, in accordance
with the act of April 24, 1948 (Public Law 496, 80th Cong.),
$24,500,000, to remain available until expended.''
Mr. [Jamie L.] Whitten [of Mississippi]: Mr. Chairman, I make
the point of order that the amendment contains legislation in that
the last clause directs that the money ``remain available until
expended.''
The Chairman: (18) Does the gentleman from Nebraska
desire to be heard on the point of order?
---------------------------------------------------------------------------
18. Aime J. Forand (R.I.).
---------------------------------------------------------------------------
Mr. Miller of Nebraska: I do, Mr. Chairman. The Chairman: The
Chair will hear the gentleman briefly. Mr. Miller of Nebraska: Mr.
Chairman, I maintain that the amendment is in order because the
Eightieth Congress passed Public Law 496 providing for the
laboratory. It is not new legislation; it merely implements
legislation Congress has already passed. I am merely trying to
implement that legislation by an appropriation which was authorized
at that time.
The Chairman: The Chair has not been able to find in Public Law
496 any authority that the funds shall remain available until
expended.
Mr. Miller of Nebraska: If the Chair please, Public Law 496 of
the Eightieth Congress is the law that this Congress passed
authorizing the construction of this laboratory. I am merely
providing funds to implement a law that has already been passed by
Congress.
The Chairman: The gentleman is within his rights in offering
such an amendment with the exception of the fact that the
gentleman's amendment contains a clause stating that the funds
shall remain available until expended. That is new legislation.
Mr. Miller of Nebraska: I concede the point of order, Mr.
Chairman, and submit the amendment minus the last clause.
The Chairman: The gentleman concedes the point of order. The
point of order is sustained.19
---------------------------------------------------------------------------
19. See also 96 Cong. Rec. 6296, 6297, 81st Cong. 2d Sess., May 3,
1950; and 89 Cong. Rec. 3080, 78th Cong. 1st Sess., Apr. 7,
1943.
---------------------------------------------------------------------------
Sec. 32.11 Language in a paragraph of a general appro
[[Page 5785]]
priation bill providing that funds provided in that paragraph shall
remain available until expended is generally conceded to be
legislation in violation of Rule XXI clause 2 unless the
authorizing legislation permits such availability, since such
language extends funds beyond the period permitted by law.
On Aug. 1, 1973,20 during consideration in the Committee
of the Whole of a general appropriation bill (H.R. 9590), the following
proceedings took place:
---------------------------------------------------------------------------
20. 119 Cong. Rec. 27288, 93d Cong. 1st Sess.
---------------------------------------------------------------------------
National Archives and Records Service
operating expenses
For necessary expenses in connection with Federal records
management and related activities, as provided by law, including
reimbursement for security guard services, contractual services
incident to movement or disposal of records, and acceptance and
utilization of voluntary and uncompensated services, $33,000,000,
of which $500,000 for allocations and grants for historical
publications as authorized by 44 U.S.C. 2504, as amended, shall
remain available until expended.
Mr. [John D.] Dingell [of Michigan]: Mr. Chairman, a point of
order.
The Chairman: (1) The gentleman will state it.
---------------------------------------------------------------------------
1. Richard Bolling (Mo.).
---------------------------------------------------------------------------
Mr. Dingell: Mr. Chairman, the point of order is to the
language on page 20, line 25, referring specifically to the words
in the bill, ``shall remain available until expended.''
That again, Mr. Chairman, is violative of rule XXI, clause 2,
as legislation on an appropriation bill.
Mr. [Thomas J.] Steed [of Oklahoma]: Mr. Chairman, we concede
the point of order.
The Chairman: The point of order is conceded and sustained.
Sec. 32.12 To a provision in an appropriation bill providing funds for
construction and rehabilitation of authorized reclamation projects,
an amendment providing funds to ``be programed and remain available
until spent for the Fort Randall-Grand Island 230-kilovolt
transmission line,'' was held to be legislation and not in order.
On May 22, 1956,(2) during consideration in the
Committee of the Whole of a general appropriation bill (H.R. 11319),
the following transpired:
---------------------------------------------------------------------------
2. 102 Cong. Rec. 8728-30, 84th Cong. 2d Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
Construction and Rehabilitation
For construction and rehabilitation of authorized
reclamation projects or parts thereof (including power
transmission facilities) and for other related activities, as
authorized by law,
[[Page 5786]]
to remain available until expended, $125,900,000, of which
$63,083,000 shall be derived from the reclamation fund. . . .
Mr. [Arthur L.] Miller of Nebraska: Mr. Chairman, I offer an
amendment.
The Clerk read as follows:
Amendment offered by Mr. Miller of Nebraska: On page 7,
line 22, after ``Congress.'', insert ``Provided further, That
$5,500,000 shall be programed and remain available until spent
for the Fort Randall-Grand Island 230-kilovolt transmission
line.''
Mr. [Clarence] Cannon [of Missouri]: Mr. Chairman, I reserve a
point of order. . . .
Mr. Chairman, we are constrained to insist upon our point of
order.
The Chairman: (3) Does the gentleman from Nebraska
desire to be heard on the point of order?
---------------------------------------------------------------------------
3. Jere Cooper (Tenn.).
---------------------------------------------------------------------------
Mr. Miller of Nebraska: Mr. Chairman, I concede that it is
legislation on an appropriation bill and concede the point order.
The Chairman: The gentleman from Missouri [Mr. Cannon] makes a
point of order; the gentleman from Nebraska [Mr. Miller] concedes
it and the Chair sustains the point of order.
Sec. 32.13 An amendment to an appropriation bill seeking to appropriate
funds for a specific purpose making such appropriation ``available
until expended'' was held to be legislation on an appropriation
bill and therefore not in order.
On June 16, 1948,(4) during consideration in the
Committee of the Whole of a deficiency appropriation bill (H.R. 6935),
a point of order was raised against the following amendment:
---------------------------------------------------------------------------
4. 94 Cong. Rec. 8469, 80th Cong. 2d Sess.
---------------------------------------------------------------------------
Amendment offered by Mr. [George H.] Mahon [of Texas]: On
page 14, line 19, after the period, add a new section as
follows:
``Rural Electrification Administration, salaries and
expenses, for an additional amount, fiscal year 1949, for
administrative expenses to be available immediately and to
remain available until expended, $450,000.''
Mr. [John] Taber [of New York]: Mr. Chairman, I make a point of
order against the amendment, that it carries legislation in the
words ``which will be available until expended.''
The Chairman: (5) Does the gentleman from Texas
desire to be heard on the point of order?
---------------------------------------------------------------------------
5. Clifford R. Hope (Kans.).
---------------------------------------------------------------------------
Mr. Mahon: Mr. Chairman, the amendment provides additional
funds for the administrative expenses for the Rural Electrification
Administration. It carries the same wording as was carried in the
original act providing the funds. It is in accordance with the
budget estimate, and it seems to me it is not subject to a point of
order. It is not legislation because it is authorized by law.
Mr. Taber: Mr. Chairman, the words ``to be available until
expended'' make it legislation, and therefore the amendment is
subject to a point of order.
[[Page 5787]]
The Chairman: The Chair is ready to rule. The amendment in its
present form with the language ``to be available until expended''
is clearly legislation. The Chair sustains the point of order.
Sec. 32.14 A provision in a paragraph of a general appropriation bill
authorizing certain funds therein to remain available until
expended whenever determined by the recipient to be necessary and
without regard to provisions of law was conceded to be legislation
in violation of Rule XXI clause 2 and was stricken from the bill.
On Aug. 1, 1973,(6) during consideration in the
Committee of the Whole of a general appropriation bill (H.R. 9590), a
point of order was raised against the following provision:
---------------------------------------------------------------------------
6. 119 Cong. Rec. 27289, 93d Cong. 1st Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
United States Tax Court
Salaries and Expenses
For necessary expenses, including contract stenographic
reporting, and other services as authorized by 5 U.S.C. 3109,
$5,760,000: Provided, That travel expenses of the judges shall
be paid upon the written certificate of the judge: Provided
further, That $1,280,000 of this appropriation shall remain
available until expended for equipment, furniture, furnishings
and accessories, required for the new Tax Court building and,
whenever determined by the Court to be necessary, without
compliance with section 3709 of the Revised Statutes, as
amended (41 U.S.C. 5).
Mr. [John D.] Dingell [of Michigan]: Mr. Chairman, I assert a
point of order against the line beginning with ``Provided further''
at page 26, line 21, down through the end of the paragraph at the
top of page 27, line 2.
Mr. Chairman, the burden of the point of order is that the
language in the bill referred to is violative of rule XXI, clause
2, constituting legislation in an appropriation bill. I refer
specifically to the language at line 22 wherein the words are as
follows:
That $1,280,000 of this appropriation shall remain
available until expended for equipment, furniture, furnishings,
and accessories . . .
Mr. [Thomas J.] Steed [of Oklahoma]: Mr. Chairman, I concede
the point of order.
The Chairman: (7) The point of order is conceded,
and the point of order is sustained.
---------------------------------------------------------------------------
7 Richard Bolling (Mo.).
---------------------------------------------------------------------------
Available Until Expended; Bureau of Reclamation Construction Funds
Sec. 32.15 Language in a supplemental appropriation bill for the
Department of the Interior providing that funds for Bureau of
Reclamation construction ``shall remain available until expended,''
was
[[Page 5788]]
held to be legislation where authorizing language was not cited.
On July 24, 1956,(8) during consideration in the
Committee of the Whole of a supplemental appropriation bill (H.R.
12350), a point of order was raised against a provision which contained
language as described above, and which also prescribed the conditions
under which certain contracts could be entered into.
---------------------------------------------------------------------------
8. 102 Cong. Rec. 14289, 84th Cong. 2d Sess.
---------------------------------------------------------------------------
[For an additional amount for ``Construction and
rehabilitation'', $2,500,000 to remain available until
expended: Provided, That any contract under the Act of July 4,
1955 (69 Stat. 244), as amended, which calls for the making of
loans beyond the fiscal year in which the contract is entered
into shall be made only on the same conditions as those
prescribed in section 12 of the Act of August 4, 1939 (53 Stat.
1187, 1197).]
Mr. [Clarence] Cannon [of Missouri]: Mr. Chairman, I desire to
make a further point of order against the language appearing on
page 7, beginning with line 5 ``Bureau of Reclamation'' down to the
bottom of the page and including the remainder of the bill.
The Chairman: (9) Does the gentleman from Missouri
desire to be heard on his point of order?
---------------------------------------------------------------------------
9. Oren Harris (Ark.).
---------------------------------------------------------------------------
Mr. Cannon: Mr. Chairman, it is legislation on an appropriation
bill.
Mr. [John] Phillips [of California]: Mr. Chairman, I should
like to be heard on the point of order. . . .
Mr. Chairman, in my opinion, this is not subject to a point of
order, as it covers a project which has been approved by
legislation. It appears in this bill, as a matter of information
for the Chairman, only because at the time the regular bill came
through the matter of contracts had not been settled between the
people involved in the district and the Government. That matter has
been settled. That is why this is here. Therefore this is not
subject to a point of order, as it has already been authorized.
Mr. Cannon: It provides for the negotiation of contracts to be
entered into in a particular and specified way.
Mr. Phillips: Then I desire to be heard further, Mr. Chairman,
before the Chairman rules in reply to the gentleman from Missouri,
that his point of order lies against the proviso only and not
against lines 7 and 8.
The Chairman: The Chair is ready to rule.
The gentleman from Missouri has made a point of order against
the language appearing in the bill on page 7, beginning in line 5,
on the ground that it contains legislation on an appropriation
bill.
The Chair has examined the language covered in the point of
order and invites attention to the fact that there appears in line
8 the words ``to remain available until expended,'' which
constitutes legislation on an appropriation bill.
The Chair therefore sustains the point of order.
Available Until Expended for Payment of Prior Obligations
Sec. 32.16 Language in an appropriation bill providing for
[[Page 5789]]
funds for the Tennessee Valley Authority ``to remain available
until expended, and to be available for the payment of obligations
chargeable against prior appropriations,'' was conceded to be
legislation and not in order.
On May 22, 1956,(10) during consideration in the
Committee of the Whole of a general appropriation bill (H.R. 11319),
the following point of order was raised:
---------------------------------------------------------------------------
10. 102 Cong. Rec. 8725, 84th Cong. 2d Sess.
---------------------------------------------------------------------------
Mr. [Louis C.] Rabaut [of Michigan]: Mr. Chairman, I make a
point of order against certain language in the Tennessee Valley
Authority paragraph as follows: . . .
. . . In lines 11 through 13 ``, to remain available until
expended, and to be available for the payment of obligations
chargeable against prior appropriations.''. . .
Mr. [Clarence] Cannon [of Missouri]: Mr. Chairman, the language
read by the gentleman is unquestionably legislation on an
appropriation bill and I therefore concede the point of order.
The Chairman: (11) . . . The gentleman from
Missouri, chairman of the Committee on Appropriations, concedes the
point of order.
---------------------------------------------------------------------------
11. Jere Cooper (Tenn.).
---------------------------------------------------------------------------
It is clearly legislation on an appropriation bill and the
point of order is sustained.
Parliamentarian's Note: 31 USC Sec. 1502 provides:
Except as otherwise provided by law, all balances of
appropriations contained in the annual appropriation bills and made
specifically for the service of any fiscal year shall only be
applied to the payment of expenses properly incurred during that
year, or to the fulfillment of contracts properly made within that
year.
Thus, provisions in general appropriation bills which make funds
available for the payment of obligations chargeable against prior
appropriations are legislative in character.
Office of Telecommunications Policy; Earmarking Certain Funds to Remain
Available Until Expended
Sec. 32.17 To a paragraph in a general appropriation bill containing
funds for salaries and expenses of the Office of Telecommunications
Policy, an amendment increasing the amount and providing that the
additional amount shall be available until expended for
telecommunications studies and research was held to constitute
legislation in violation of Rule XXI clause 2.
[[Page 5790]]
On Aug. 1, 1973,(12) during consideration in the
Committee of the Whole of a general appropriation bill (H.R. 9590), a
point of order was raised against the following amendment:
---------------------------------------------------------------------------
12. 119 Cong. Rec. 27285, 93d Cong. 1st Sess.
---------------------------------------------------------------------------
Mr. [Clarence J.] Brown of Ohio: Mr. Chairman, I offer an
amendment.
The Clerk read as follows:
Amendment offered by Mr. Brown of Ohio: Page 10, line 24,
after the first comma, strike out the figure $2,070,000 and
insert the figure $2,745,000, and add at the end thereof the
following: ``Provided, That not to exceed $675,000 of the
foregoing amount shall remain available for telecommunications
studies and research until expended.''
Mr. [Tom] Bevill [of Alabama]: Mr. Chairman, I should like to
make a point of order against the amendment.
The Chairman: (13) The gentleman will state his
point of order.
---------------------------------------------------------------------------
13. Richard Bolling (Mo.).
---------------------------------------------------------------------------
Mr. Bevill: The second provision is: Provided, That not to
exceed $675,000 of the foregoing amount shall remain available for
telecommunications studies and research until expended.
There is no authorization for studies and research, and I make
a point of order against that portion of the amendment.
The Chairman: Does the gentleman from Ohio desire to be heard
on the point of order?
Mr. Brown of Ohio: Mr. Chairman, the amendment proposes to
restore funds which were stricken by the committee in its
consideration of the proposals for this particular office as the
bill was under consideration in the committee.
The amendment seeks to restore a portion of the funds which
were a part of that total budget asked of the committee. The reason
for the proviso language is to further clarify for what the
additional funds would be used, to go back to the testimony of the
office when it appeared before the committee and to restore the
specific portion of those funds.
Mr. [Thomas J.] Steed [of Oklahoma]: Mr. Chairman, may I be
heard on the point of order?
The Chairman: The Chair will hear the gentleman.
Mr. Steed: The language of the original bill was submitted to
the experts, and it was held it would be subject to a point of
order, because the funds would be available until expended. That is
why it was deleted from the bill in the committee. . . .
The Chairman: The Chair is prepared to rule.
The Chair will rule narrowly on the point made by the gentleman
from Oklahoma. The words ``until expended'' constitute legislation
on an appropriation bill. Therefore, the point of order is
sustained on that ground.
Laws Not Permitting Availability Until Expended--Mutual Security Act
Sec. 32.18 An amendment to the Mutual Security Act appropriation bill
to provide for the equivalent of $1.5 million in local currencies
for hos
[[Page 5791]]
pital construction, to remain available until expended, was ruled
out as legislation.
On June 17, 1960,(14) during consideration in the
Committee of the Whole of the mutual security appropriation bill (H.R.
12619), a point of order was raised against the following amendment:
---------------------------------------------------------------------------
14. 106 Cong. Rec. 13133, 86th Cong. 2d Sess.
---------------------------------------------------------------------------
Mr. [Clement J.] Zablocki [of Wisconsin]: Mr. Chairman, I offer
an amendment.
The Clerk read as follows:
Amendment offered by Mr. Zablocki: On page 3, line 7, after
``$206,000,000,'' strike out beginning ``of which not'' and
through the colon on line 12 and insert on page 3, after line
19, the following:
``Special assistance, special authorization: For assistance
authorized by section 400(c) for hospital construction the
equivalent of $1,500,000 in local currencies to remain
available until expended.''
Mr. [H. R.] Gross [of Iowa]: Mr. Chairman, a point of order.
The Chairman: (15) The gentleman will state it.
---------------------------------------------------------------------------
15. Wilbur D. Mills (Ark.).
---------------------------------------------------------------------------
Mr. Gross: Mr. Chairman, I make a point of order against the
amendment and against the words ``until expended'' as not being
authorized. I would call the Chair's attention to title 31, United
States Code, 718, which provides as follows:
No specific or indefinite appropriation made subsequent to
August 24, 1912, in any regular annual appropriation act shall
be construed to be permanent or available continuously without
reference to a fiscal year unless it belongs to one of the
following four classes: ``Rivers and harbors,''
``lighthouses,'' ``public buildings,'' and ``pay of the Navy
and Marine Corps,''. . . or unless it is made in terms
expressly providing that it shall continue available beyond the
fiscal year for which the appropriation act in which it is
contained makes provision.
Mr. Chairman, I point out that this is an annual appropriation
bill and, therefore, this is language on an appropriation bill that
is not authorized by law.
Mr. Zablocki: I will not argue the point, Mr. Chairman, I
concede the point of order.
The Chairman: The Chair sustains the point of
order.(16)
---------------------------------------------------------------------------
16. See the present 31 USC Sec. 1301.
---------------------------------------------------------------------------
-- National Academy of Sciences
Sec. 32.19 A paragraph in a general appropriation bill containing funds
to enable the National Academy of Sciences to conduct an analysis
of the Environmental Protection Agency under contract, which funds
were to remain available until expended, was conceded to contain an
appropriation unauthorized by law and legislation where the only
law cited authorized the National Academy to investigate any
[[Page 5792]]
subject of science or art when requested by an agency.
On June 15, 1973,(17) during consideration in the
Committee of the Whole of a general appropriation bill (H.R. 8619), a
point of order was raised against the following provision:
---------------------------------------------------------------------------
17. 119 Cong. Rec. 19852, 93d Cong. 1st Sess.
---------------------------------------------------------------------------
For an amount to provide for a complete and thorough review,
analysis, and evaluation of the Environmental Protection Agency,
its programs, its accomplishments and its failures, and to
recommend such changes, cancellations, or additions as necessary,
to be conducted under contract with the National Academy of
Sciences, $5,000,000, to remain available until expended.
Mr. [John D.] Dingell [of Michigan]: Mr. Chairman, at this
point I make a point of order against the language appearing at
lines 20 through 24 on page 32, and on through the first two lines
of page 33.
The reason for my point of order, Mr. Chairman, is twofold.
First, this is legislation in an appropriation bill; and it
constitutes an appropriation of funds not previously authorized by
law.
So that the language referred to is again violative of rule
XXI, clause 2, and I would point out again, Mr. Chairman, that the
rule should be so interpreted as to require strict compliance.
Mr. Chairman, I am quoting from page 466 of the Manual of the
Rules of the House of Representatives, as follows:
In the administration of the rule, it is the practice that
those upholding an item of appropriation should have the burden
of showing the law authorizing it.
Mr. Chairman, I would point out that neither the statute
setting up the EPA nor the statute setting up the National Academy
of Sciences affords the National Academy of Sciences the duty,
responsibility, or power to investigate or to study EPA. For that
reason, Mr. Chairman, I make this point of order.
Mr. [Sidney R.] Yates [of Illinois]: Mr. Chairman, I make the
additional point of order that the language in the paragraph
appearing at the top of page 33, containing the words, ``to remain
available until expended,'' is also subject to a point of order.
The Chairman: (18) Does the gentleman from
Mississippi (Mr. Whitten) desire to be heard on the point of order?
---------------------------------------------------------------------------
18. James C. Wright, Jr. (Tex.).
---------------------------------------------------------------------------
Mr. [Jamie L.] Whitten: Mr. Chairman, I seem to have a little
difficulty finding it at the moment, but the language setting up
the National Academy of Sciences, after establishing the Academy,
provides for making this kind of study when asked by any department
or agency of the Government.
While we seem to have difficulty finding it--I do not know
whether the Chair has it in his hands or not--it does so provide.
Based on that, we have directed this agency to make such a request.
That is the situation as we submit it at this time.
[[Page 5793]]
Mr. Dingell: Mr. Chairman, I would point out that the committee
in its kindness, in the report at page 99 and page 100, under the
words ``limitations and legislative provisions'' has set forth
precisely the language which I have alluded to.
I would point out since it is clearly not a limitation and
since it does not limit the level of expenditures, then it becomes,
in the words of the distinguished committee, then legislation,
since to exclude one is necessarily to require the expression of
the other alternative. Therefore, it is conceded at page 100 of the
report in the second to last paragraph to which I referred the
Chair that this does in fact constitute legislation in an
appropriation bill.
Mr. Whitten: Mr. Chairman, I shall not press the matter
further. The language on which we rely is to be found--and we have
finally found it here--March 3, 1963, and it provides in section 3
of such act:
Be it further enacted that the National Academy of Sciences
shall hold an annual meeting at such place in the United States
to be designated and the Academy shall when called upon by any
department of the Government investigate, examine, and report
any subject of science or art the actual expenses for which are
to be paid for in an appropriation which may be made for the
purpose. The Academy shall receive no compensation whatever for
its services to the Government of the United States.
If I may have a second to write a similar amendment to that
which we substituted a while ago in a similar point of order, we
will provide the money for such an expense if I might have the
cooperation of my friends. I have to acknowledge the point of order
at this point.
Mr. Dingell: I thank the gentleman.
Mr. Whitten: If the Chair will oblige me for a second while I
write the amendment, we will provide $5 million for such study by
the National Academy of Sciences, and we shall be happy to so amend
the legislation.
The Chairman: Does the Chair understand that the gentleman from
Mississippi concedes the point of order?
Mr. Whitten: I do. And I beg the indulgence of the Chair that
we may write an amendment to replace the section.
Mr. Dingell: Out of deference to my good friend from
Mississippi and in order to have the business on the committee go
forward, I will ask unanimous consent that he be permitted to
return at a time later--
Mr. Whitten: I think we have it ready.
Mr. Dingell: Very well.
The Chairman: The point of order is sustained, and the language
is stricken.
-- Lump-sum Appropriation for Joint Economic Committee
Sec. 32.20 Since the law establishing the Joint Economic Committee [15
USC Sec. 1024(e)] authorizes the appropriation of ``such sums as
may be necessary during each fiscal year,'' it is not in order in a
general appropriation bill to
[[Page 5794]]
make funds for that joint committee available beyond the fiscal
year covered by the bill.
On May 11, 1971,(19) during consideration in the
Committee of the Whole of a supplemental appropriation bill (H.R.
8190), a point of order was raised against the following provision:
---------------------------------------------------------------------------
19. 117 Cong. Rec. 14472, 92d Cong. 1st Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
Contingent Expenses of the Senate
joint economic committee
For an amount (to be disbursed by the Secretary of the
Senate on vouchers signed by the chairman or vice chairman and
the chairman of the subcommittee) necessary to enable the
Subcommittee on Fiscal Policy, under authority of the
Employment Act of 1946 (60 Stat. 23, sec. 5), to undertake a
study to develop reliable, comprehensive, and factual
information concerning welfare programs and needs in the United
States, $500,000, to remain available until June 30, 1973.
Mr. [Durward G.] Hall [of Missouri]: Mr. Chairman, I make a
point of order against this bill, on page 11, the section beginning
with line 15 through page 12, line 3.
My point of order is directed, Mr. Chairman, particularly to
the last clause which says, ``to remain available until June 30,
1973.''
The point of order should lie in the fact that this is an
appropriation on unauthorized legislation [sic].
The Chairman: (20) Does the gentleman from Alabama
desire to be heard on the point of order?
---------------------------------------------------------------------------
20. Wayne N. Aspinall (Colo.).
---------------------------------------------------------------------------
Mr. [George W.] Andrews [of Alabama]: Mr. Chairman, we concede
the point of order.
The Chairman: The point of order is sustained.
Federal Building Fund; Limiting Obligational Authority to Current
Fiscal Year
Sec. 32.21 Notwithstanding legislation providing that funds when
appropriated shall be available ``until expended'' or ``without
regard to fiscal year limitation'', the Committee on Appropriations
may nevertheless limit the availability of funds to the fiscal year
covered by the bill absent a clear showing that the amounts in the
general appropriation bill are required by law to remain available
without such limitation.
The Chair ruled on June 25, 1974,(1) that, where
existing law provided that moneys deposited into the federal buildings
fund shall be available for expenditure by GSA ``for real property
management . . . in such amounts as
[[Page 5795]]
are specified in annual appropriations acts without regard to fiscal
year limitations'', a paragraph in a general appropriation bill
specifying the amount to be made available from that fund ``during the
current fiscal year'' did not constitute a change in that law. The
language of the law was interpreted merely to permit, and not to
require, the annual appropriation bill to make those funds available
until expended. The proceedings are shown below:
---------------------------------------------------------------------------
1. 120 Cong. Rec. 21040, 21041, 93d Cong. 2d Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
The revenues and collections deposited into a fund pursuant
to Section 210(f) of the Federal Property and Administrative
Services Act of 1949, as amended (40 U.S.C. 490(f)), shall be
available during the current fiscal year for necessary expenses
of real property management and related activities not
otherwise provided for, including operation, maintenance, and
protection of federally owned and leased buildings; . . .
construction of new buildings (including equipment for such
buildings); and payment of principal, interest, taxes, and any
other obligations for public buildings acquired by purchase
contract; in the aggregate amount of $871,875,000 of which (1)
not to exceed $25,000,000 shall be available for construction
of buildings as authorized by law including construction
projects at locations and at maximum construction improvement
costs (including funds for sites and expenses) as follows:
New Construction:
Arizona: Lukeville Border Station, $2,081,000
Texas: Laredo Border Station, $15,462,000. . . .
Provided, That the immediately foregoing limits of costs may be
exceeded to the extent that savings are effected in other such
projects, but by not to exceed 10 per centum; (2) not to exceed
$26,244,000 for purchase contract payments; . . . (6) not to
exceed $54,037,000 for program direction and centralized
services; and (7) not to exceed $25,000,000 shall be available
for obligation in fiscal year 1976. . . .
Mr. [William H.] Harsha [of Ohio]: Mr. Chairman, I make a point
of order against the language in the bill appearing at page 15,
lines 10 and 11, that this is legislation in an appropriation act,
and it is, I believe, in violation of rule XXI, clause 2.
Mr. Chairman, two provisions under the appropriation heading,
``Federal Buildings Fund--Limitations on Availability of Revenue,''
are subject to a point of order because they change existing law.
The first such provision is the clause, ``during the current
fiscal year,'' at page 15, lines 10-11 of the bill. This language
would limit the use of funds made available to GSA from the Federal
Building Fund to fiscal year 1975. This is in direct conflict with
section 210(f) of the Federal Property and Administrative Services
Act of 1949, as amended, which specifically provides that ``the
fund shall be available for expenditure--without regard to fiscal
year limitations.'' The language in the bill is clearly designed to
change the authorizing law and is contrary to rule 21, clause 2
that prohibits legislation in an appropriation bill.
The objectionable language in the bill cannot be supported on
any theory of retrenchment of expenditures. The limitation
requiring that moneys made
[[Page 5796]]
available for real property activities be spent in the fiscal year
does not reduce expenditures, but would tend to increase costs and
spending by encouraging expenditures over a shorter period of time
than good management and planning would otherwise require.
If the language is allowed to remain in the bill, the Congress
will, in effect, be substantially modifying the concept of a
Federal Building Fund. The Public Works Committee, when it
considered the Public Buildings Amendments of 1972, which
established the fund, concluded that the Federal Building Fund
would have to be available without regard to fiscal year
limitations, but with reasonable congressional control, if the
purpose of reforming real property management financing was ever
going to be achieved. . . .
The fiscal year limitation applies to all construction work
performed by GSA including the construction of new buildings and
conversion and extensions to older buildings. The restriction is
thus directly in conflict with section 682 of title 31 of the
United States Code which provides that appropriations for
construction of public buildings remain available until completion
of the work; that is, without regard to fiscal year limitations. I
know of no single instance where the Congress has placed a fiscal
year limitation on the construction of new buildings.
Elimination of the objectionable language in the appropriation
bill will not in any way interfere with normal congressional
controls of appropriations to GSA for its real property activities.
The Appropriations Committee in considering the 1976 budget
requests can take into account any unobligated balances in the fund
in determining the amount to be made available to GSA from the fund
in fiscal 1976.
For the above-stated reasons, the phrase ``during the current
fiscal year'' is subject to a point of order and should be deleted.
. . .
Mr. [Tom] Steed [of Oklahoma] . . . Mr. Chairman, this is a
simple, negative limitation, it merely restricts the use of the
funds to the fiscal year. The fact that there is no authority to
make them available for a longer period of time does not constitute
a point of order against the language here. . . .
The Chairman: (2) The Chair is prepared to rule.
---------------------------------------------------------------------------
2. B. F. Sisk (Calif.).
---------------------------------------------------------------------------
The gentleman from Ohio makes the point of order against the
clause on page 15, lines 10 and 11 of H.R. 15544 which limits the
availability ``during the current fiscal year'' of the aggregate
amount of $871,875,000 for expenditure by GSA from the Federal
Buildings fund. The gentleman from Ohio contends that this language
in H.R. 15544 violates clause 2, Rule XXI by constituting a change
in existing law [section 210(f) of the Federal Property and
Administrative Services Act of 1949, as amended (Public Law 92-
313)] which provides:
(2) Moneys deposited into the fund shall be available for
expenditure for real property management and related activities
in such amounts as are specified in annual appropriations Acts
without regard to fiscal year limitations.
The gentleman from Ohio contends that this law requires that
amounts in Federal Building Fund must be made available by the
Appropriations Committee without a fiscal year restriction,
[[Page 5797]]
and that the Committee on Appropriations has no authority under
clause 2, rule XXI to limit the availability of amounts from that
fund for the current fiscal year. The Committee on Appropriations,
on the other hand, contends that such a provision of law merely
permits, and does not require, the Committee on Appropriations to
appropriate funds from the Federal Building Fund without a fiscal
year limitation, or to be available until expended, and therefore
that the limitation contained in the paragraph for the current
fiscal year is within the prerogative of the Committee on
Appropriations under Public Law 92-313.
The Chair would point out that while authorizing legislation
customarily provides that funds authorized therein shall ``remain
available until expended'', the Committee on Appropriations has
never been required, when appropriating for those purposes, to
specify that such funds must remain available until expended. The
Appropriations Committee often confines the availability of funds
to the current fiscal year, regardless of the limit of availability
contained in the authorization. Conversely, however, where the
authorizing statute does not permit funds to remain available until
expended or without regard to fiscal year limitation inclusion of
such availability in a general appropriation bill has been held to
constitute legislation in violation of clause 2, rule XXI.
The Chair thus is of the opinion that Public Law 92-313 should
be construed as has been suggested by the Committee on
Appropriations, absent a clear showing that the language in
question was intended to require appropriations from the Federal
building fund to be made available until expended. In this regard,
the Chair has examined the legislative history of Public Law 92-313
in an effort to understand congressional intent on this question.
The Chair notes that on June 5, 1972, during debate on the
conference report on S. 1736 which became Public Law 92-313, the
gentleman from Illinois (Mr. Gray) in response to a question by Mr.
Bow of Ohio, stated that:
Any residue left over from existing appropriations now will
go automatically, when this legislation is signed into law into
the revolving fund. That residue from previous appropriations
plus the amount of rents collected from all Federal agencies
will make up the total revolving fund, and the House Committee
on Appropriations will have complete control on an annual basis
over the revolving fund.
The gentleman from Ohio (Mr. Harsha) then stated during that
debate:
I think there is quite an adequate safeguard in what the
Committee on Appropriations can do in controlling the
implementation of this measure. All of the money that goes into
the revolving fund must be appropriated before it is expended.
Therefore, the Committee on Appropriations will have control
from that standpoint.
The Chair holds that the Committee on Appropriations has not
changed existing law by limiting the availability of a portion of
the funds taken from the Federal building fund to the current
fiscal year. The Chair therefore overrules the point of order.
[[Page 5798]]
CHAPTER 26
Unauthorized Appropriations; Legislation on Appropriation Bills
C. PROVISIONS AS ``CHANGING EXISTING LAW,'' GENERALLY
Sec. 33. Increasing Limits of Authorization Set in Law
Indefinite Appropriation Where Authorization Requires Definite Amount
Sec. 33.1 A provision in a general appropriation bill making available
indefinite sums from the Southwest Power Administration revolving
fund to insure continued electric service and use of transmission
facilities was ruled out as legislation in violation of Rule XXI
clause 2 where existing law provided that a definite amount must be
specified for that purpose in annual appropriation bills.
On June 26, 1972,(3) during consideration in the
Committee of the Whole of a general appropriation bill (H.R. 15586),
the following point of order was raised:
---------------------------------------------------------------------------
3. 118 Cong. Rec. 22428, 22429, 92d Cong. 2d Sess.
---------------------------------------------------------------------------
Mr. [Robert H.] Michel [of Illinois]: Mr. Chairman, I make a
point of order against the language appearing on page 20, beginning
with line 8, as follows:
Provided, That, in addition, such sums as may be necessary
shall be available from the Continuing Fund, Southwestern Power
Administration (16 U.S.C. 825 S-1) to defray emergency expenses
to insure continuity of electric service and continuous
operation of Government facilities in the area.
Mr. Chairman, if I might be heard on the point of order, in the
Interior Department appropriation bill in 1943, Public Law 216,
there was established a $100,000 continuing fund to insure
continuity of power operations for use in emergency.
Then in the Interior Department Appropriation Act of 1950,
Public Law 350, this so-called continuing fund was increased to
$300,000 and extended its use to include the purchase of power and
rental of transmission lines. Between 1950 and 1952 the Department
of the Interior and the Southwest Power Administration interpreted
the continuing fund as a revolving fund which replenished itself
automatically from the Southwest Power Administration power
revenues. Therefore, there was no upper limit on the amount that
could be withdrawn from the continuing fund each year except from
the Southwest Power Administration gross power receipts in that
year.
Congress recognized that the Southwest Power Administration's
use of the continuing fund for the purchase of power and the
payment of transmission charges gave the Southwest Power
Administration unlimited funds through the back door of the
Treasury without going through the congressional appropriation
procedure. Therefore in 1951 the Congress added to the continuing
fund statute the following provision:
Provided, That expenditures from this fund to cover such
costs in con
[[Page 5799]]
nection with the purchase of electric power and energy, and
rentals for the use of facilities are to be made only in such
amounts as may be approved annually in appropriation Acts.
Congress itself thus closed the back door to the Treasury to
the Southwest Power Administration and recaptured its control of
Federal expenditures.
Since 1952 the Southwest Power Administration budgeted the
received appropriations for its estimated power purchases and
transmission costs which appropriations together with supplemental
appropriations as have been required from time to time have
permitted SPA to fulfill contract commitments in emergencies.
If I might simply cite that statute back in July 1952, Public
Law 470, the proviso here said:
Continuing fund, Southwest Power Administration not to
exceed $1,000,000 shall be available during the current fiscal
year from the continuing fund for all costs in connection with
the purchase of electric power and energy and rentals for the
use of transmission facilities.
Ever since that time we have been using varying appropriation
language setting a particular figure.
If I might read from the code, page 4013, title 18, under
``Conservation,'' paragraph 825S-1, the one to which we make
reference here and the language to which I object, we read:
All receipts from the transmission and sale of electric
power and energy under the provisions of Sec. 825S of this
title, generated or purchased in the Southwest Power Area shall
be covered into the Treasury of the United States as
miscellaneous receipts, except that the Treasury shall set up
and maintain from such receipts a continuing fund of $300,000,
including the sum of $100,000 in the continuing fund
established under the Administrator of the Southwest Power
Administration. . . .
And so on and so forth.
Then it goes on and concludes with a proviso:
Provided, That expenditures from this fund to cover such
costs in connection with the purchase of electric power and
energy and rentals for the use of facilities are to be made
only in such amounts as may be approved annually in
appropriation Acts.
The language on page 20 and beginning on line 8 adds the
further proviso to the continuing fund as follows:
Provided, That, in addition, such sums as may be necessary
shall be available from the continuing fund, Southwest Power
Administration, (U.S. Code 825S-1,) to defray emergency
expenses to insure continuity of electric service and
continuous operation of Government facilities in the area.
In addition to being a double negative or having that effect of
double negative, the adoption of this proposed wording would
actually be a change in the basic law concerning the use of the
continuing fund. It is not merely a change in appropriations, as
suggested.
Mr. Chairman, this change is legislation in an appropriation
bill, and I request that my point of order be sustained. . . .
The Chairman: (4) The Chair is ready to rule. The
Chair is of the opinion that the language does permit the transfer
of an indefinite sum of money from the continuing or revolving fund
[[Page 5800]]
and, in fact, changes existing law and, therefore, is legislation
on an appropriation bill.
---------------------------------------------------------------------------
4. Wayne N. Aspinall (Colo.).
---------------------------------------------------------------------------
The Chair sustains the point of order. Waiving Limitation in
Permanent Law
Sec. 33.2 Where a limitation on the amount of an appropriation to be
annually available for expenditure by an agency has become law,
language in a subsequent appropriation bill seeking to change this
limitation on such funds was conceded to change existing law and
therefore to be legislation on an appropriation bill.
On Mar. 15, 1945,(5) during consideration in the
Committee of the Whole of a general appropriation bill (H.R. 2603), a
point of order was raised against the following provision:
---------------------------------------------------------------------------
5. 91 Cong. Rec. 2305, 79th Cong. 1st Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
Foreign Service Buildings Fund: For the purpose of carrying
into effect the provisions of the act of May 25, 1938, entitled
``An act to provide additional funds for buildings for the use
of the diplomatic and consular establishments of the United
States'' (22 U.S.C. 295a), including the initial alterations,
repair, and furnishing of buildings acquired under said act,
$1,466,000, notwithstanding the amount limitation in the act of
May 25, 1938 (22 U.S.C. 295a), to remain available until
expended: Provided, That expenditures for furnishing made from
appropriations granted pursuant to the act of May 7, 1926, and
subsequent acts providing funds for buildings for the use of
diplomatic and consular establishments of the United States
shall not be subject to the provisions of section 3709 of the
Revised Statutes.
Mr. [Edward H.] Rees of Kansas: Mr. Chairman, I make a point of
order against the paragraph beginning in line 14, page 16, down to
and including line 3, page 17, on the ground it is a violation of
the basic law.
Appropriation is asked notwithstanding the amount limitation in
the act of May 25, 1938 (22 U.S. Code, sec. 295a), as follows:
Sections 292 et seq. authorized the acquisition of properties
abroad for the State Department, and section 295a authorized ``to
be appropriated, in addition to the amount authorized by such act,
an amount not to exceed $5,000,000, of which not more than
$1,000,000 shall be appropriated for any 1 year,'' and so forth.
No necessity or reason is shown for the lifting of that
$1,000,000 yearly limitation on these appropriations, and the
present proposal amounts to, and is, permanent and repealing
legislation on an appropriation act.
The Chairman: (6) Does the gentleman from Michigan
[Mr. Rabaut] desire to be heard?
---------------------------------------------------------------------------
6. Wilbur D. Mills (Ark.).
---------------------------------------------------------------------------
Mr. [Louis C.] Rabaut: Mr. Chairman, I think the point of order
might
[[Page 5801]]
apply to the language appearing in lines 20 and 21. That is because
of the excesses.
The Chairman: Permit the Chair to understand the gentleman. The
gentleman concedes that the language in lines 20 and 21 is bad and
subject to a point of order?
Mr. Rabaut: Yes.
The Chairman: Does the gentleman from Kansas [Mr. Rees] insist
on his point of order against the entire paragraph?
Mr. Rees of Kansas: I do.
Mr. Rabaut: Mr. Chairman, will the gentleman withhold his point
of order for a minute?
Mr. Rees of Kansas: Yes. I reserve the point of order.
Mr. Rabaut: Mr. Chairman, the citation of the law for that
appears in line 18 and the reason for the legislative language in
this bill is for the purpose of taking advantage of the situation
as it exists today in the money and real estate markets of the
world.
In this bill we had $1,466,000 and a part of those funds are
necessary for the purpose of taking advantage, for the benefit of
the United States in reestablishing where there has been huge
destruction of our own diplomatic posts in the form of buildings
and necessities, or at least getting hold of the land in many
places, so necessary at this time. If it is the gentleman's idea to
frustrate this advantage, of course, the point of order should
stand, but for the purpose of really being of assistance to the
Treasury of the United States it would be very well if this
language were left in the bill. It was placed in the bill to enable
the agency to move speedily to any place in the world where it
would be to our advantage to reestablish housing for our diplomatic
corps.
Mr. Chairman, I concede the point of order, if the gentleman
insists on it, beginning with the word ``notwithstanding'' in line
20.
Mr. Rees of Kansas: I insist on the point of order to the
entire paragraph, Mr. Chairman.
The Chairman: In view of the fact that certain language in the
paragraph is conceded to be subject to a point of order, the entire
paragraph is subject to a point of order.
The Chair sustains the point of order.
Increasing Limitation on Rural Telephone Borrowing Authority
Sec. 33.3 A provision in an appropriation bill increasing the loan
authorization for the rural telephone program above the amount
authorized for that purpose in a prior appropriation law was held
to be legislation and not in order.
On Apr. 22, 1953,(7) during consideration in the
Committee of the Whole of a supplemental appropriation bill (H.R.
4664), a point of order was raised against the following provision:
---------------------------------------------------------------------------
7. 99 Cong. Rec. 3613, 83d Cong. 1st Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
[[Page 5802]]
Rural Electrification Administration
Loan authorizations
The basic amount authorized by the Department of
Agriculture Appropriation Act, 1953, to be borrowed from the
Secretary of the Treasury for the rural-telephone program is
increased from ``$25 million'' to ``$32,500,000.''
Mr. [Frederic R.] Coudert [Jr., of New York]: Mr. Chairman, I
make a point of order against the language on page 5, from line 7
through line 12. Mr. Chairman, on its face the language is out of
order because it clearly amends existing law, and, therefore, is
legislation upon an appropriation bill.
Mr. H. Carl Andersen [of Minnesota]: Mr. Chairman, may I be
heard on the point of order?
The Chairman: (8) The gentleman may proceed.
---------------------------------------------------------------------------
8. John W. Byrnes (Wis.).
---------------------------------------------------------------------------
Mr. H. Carl Andersen: Mr. Chairman, I believe the point of
order is clearly out of order. The language which the subcommittee
has placed in the bill simply increases the amount of authorization
for these particular loans, and in my opinion, it is perfectly in
order as we have written it in the bill.
The Chairman: Does the gentleman from New York [Mr. Taber]
desire to be heard on this point of order?
Mr. [John] Taber: I do not, Mr. Chairman.
The Chairman: The Chair is ready to rule. The gentleman from
New York [Mr. Coudert] makes a point of order that the language of
this paragraph is legislation on an appropriation bill. It is
apparent from a reading of the language that a change is made in
the basic act of the Department of Agriculture Appropriation Act of
1953. The Chair sustains the point of order.
Rural Electrification; Distribution of Funds Above Authorized Limit
Sec. 33.4 To an appropriation bill an amendment providing that
additional funds for the rural electrification program ``may be
distributed in any State or Territory in addition to any sum which
such State may otherwise receive'' was conceded and held to be
legislation and not in order.
On May 20, 1953,(9) during consideration in the
Committee of the Whole of the Agriculture Department appropriation bill
(H.R. 5227), the following proceedings occurred:
---------------------------------------------------------------------------
9. 99 Cong. Rec. 5270, 5271, 83d Cong. 1st Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
Loan authorizations
For loans in accordance with said act, and for carrying out
the provisions of section 7 thereof, to be borrowed from the
Secretary of the Treasury in accordance with the provisions of
section 3(a) of said act as follows: Rural electrification
program, $135 million; and rural telephone program, $50
million; and additional amounts, not to exceed $30 million for
the rural electrification
[[Page 5803]]
program, may be borrowed under the same terms and conditions to
the extent that such additional amounts are required during the
fiscal year 1954, under the then existing conditions, for the
expeditious and orderly development of the program.
Mr. [William R.] Poage [of Texas]: Mr. Chairman, I offer an
amendment.
The Clerk read as follows:
Amendment offered by Mr. Poage: On page 38, line 2, after
the comma strike out the balance of the line and all of line 3
[deleting ``for the . . . development of the program''] and
insert ``and may be distributed in any State or Territory in
addition to any sum which such State may otherwise receive.''
Mr. [John] Taber [of New York]: Mr. Chairman, a point of order.
The Chairman: (10) The gentleman will state it.
---------------------------------------------------------------------------
10. William M. McCulloch (Ohio).
---------------------------------------------------------------------------
Mr. Taber: Mr. Chairman, this is legislation on an
appropriation bill and contrary to existing law. . . .
Mr. Poage: Mr. Chairman, I will have to concede the point of
order because I know it is legislation on an appropriation bill.
The Chairman: The Chair sustains the point of order.
Census Work
Sec. 33.5 An appropriation for carrying on authorized census work,
including personal services and rentals, in excess of the limit of
cost fixed by law is not in order on an appropriation bill.
On Feb. 7, 1940,(11) the Committee of the Whole was
considering H.R. 8319, the Departments of State, Justice, Commerce, and
the Judiciary appropriation bill. At one point the Clerk read as
follows:
---------------------------------------------------------------------------
11. 86 Cong. Rec. 1195, 76th Cong. 3d Sess.
---------------------------------------------------------------------------
For continuing the work of taking, compiling, and publishing
the Sixteenth Census of the United States, as authorized by the act
of June 18, 1929 (13 U.S.C. 201-218), and the national census of
housing as authorized by the act of August 11, 1939 (53 Stat.
1406), and for carrying on other authorized census work, within a
limit of cost for the period of July 1, 1939, to December 31, 1942,
of $53,250,000, including personal services and rentals in the
District of Columbia and elsewhere; the cost of transcribing State,
municipal, and other records; contracts for the preparation or
monographs on census subjects and other work of specialized
character which cannot be accomplished through ordinary employment;
per diem compensation of employees of the Department of Commerce
and other departments and independent establishments of the
Government who may be detailed for field work; expenses of
attendance at meetings concerned with the collection of statistics,
when incurred on the written authority of the Secretary of
Commerce; purchase of books of reference, periodicals, maps,
newspapers, manuscripts, first-aid outfits for use in the buildings
occupied by employees of the census, maintenance, operation, and
repair of
[[Page 5804]]
a passenger-carrying automobile to be used on official business;
construction, purchase, exchange, or rental of punching,
tabulating, sorting, and other labor-saving machines, including
technical, mechanical, and other services in connection therewith;
printing and binding, traveling expenses, streetcar fares, and all
other contingent expenses in the District of Columbia and in the
field, $17,850,000, of which $2,000,000 shall be available
immediately, and the unexpended balance of the appropriation under
this title in the Department of Commerce's Appropriation Act, 1940,
is hereby continued available until June 30, 1941.
Mr. [John] Taber [of New York]: Mr. Chairman, I make the point
of order against the language on page 37, beginning with the word
``within'', on line 17, running through the word ``elsewhere'', in
line 20. It is legislation on an appropriation bill, increasing the
limitation that now exists against the expenses of the Census
Bureau, and it is unauthorized by law.
Mr. [Millard F.] Caldwell [of Florida]: Will the gentleman
state the particular language to which he makes the point of order?
Mr. Taber: I shall read it. It is as follows, beginning on line
17, page 37:
Within a limit of cost for the period of July 1, 1939, to
December 31, 1942, of $53,250,000, including personal services
and rentals in the District of Columbia and elsewhere.
Mr. Caldwell: Mr. Chairman, I think the point of order is well
taken. It is simply an economy measure that the committee wrote in.
Mr. Taber: Mr. Chairman, it is not an economy measure. It
raises the authorizations $150,000 beyond all authorizations now
existing.
The Chairman: (12) The Chair sustains the point of
order.
---------------------------------------------------------------------------
12. Harry P. Beam (Ill.).
---------------------------------------------------------------------------
Housing Assistance, Increase in Contract Authority
Sec. 33.6 To a paragraph in an appropriation bill containing funds for
liquidation of contract obligations for homeownership and rental
housing assistance, an amendment providing that total payments
required by such contracts in any fiscal year shall be increased by
a certain amount was ruled out as permanent legislation in
violation of Rule XXI clause 2.
On May 11, 1971,(13) during consideration in the
Committee of the Whole of a supplemental appropriation bill (H.R.
8190), the following transpired:
---------------------------------------------------------------------------
13. 117 Cong. Rec. 14464, 14465, 92d Cong. 1st Sess.
---------------------------------------------------------------------------
Chapter IV
Department of Housing and Urban Development
Mortgage Credit
homeownership and rental housing assistance
For an additional amount for ``Homeownership and rental housing
assistance'', $32,900,000.
[[Page 5805]]
Mr. [Edward I.] Koch [of New York]: Mr. Chairman, I offer an
amendment.
The Clerk read as follows:
Amendment offered by Mr. Koch: On page 5, line 9, insert
immediately before the period ``: Provided, That the limitation
on total payments that may be required in any fiscal year by
all contracts entered into under section 235 of the National
Housing Act, as amended, is increased by $25,000,000, and the
limitation on total payments under those entered into under
section 236 of such Act, is increased by $25,000,000''.
Mr. [Charles R.] Jonas [of North Carolina]: Mr. Chairman, I
make a point of order against the amendment on the ground it is
legislation on an appropriation bill.
The Chairman: (14) The gentleman will state his
point of order.
---------------------------------------------------------------------------
14. Wayne N. Aspinall (Colo.).
---------------------------------------------------------------------------
Mr. Jonas: Mr. Chairman, as I understand the amendment, it
seeks to increase contract authority, and the bill under
consideration does not contain any contract authority but merely
payments that have accrued and have to be paid in order to
liquidate contract authority. Therefore, I think the amendment is
subject to a point of order and I so make it.
Mr. Koch: Mr. Chairman, may I be heard on the point of order?
The Chairman: The gentleman from New York is recognized on the
point of order.
Mr. Koch: This chapter relates to sections 235 and 236, but
provides no new moneys and does not provide the moneys that
heretofore have been authorized. I submit to you, Mr. Chairman,
that all my amendment will do is to appropriate moneys which
heretofore have been authorized for the purpose provided in the
amendment.
The Chairman: The Chair is ready to rule. The amendment does
constitute legislation in an appropriation bill and violates clause
2 of rule XXI. Therefore, the Chair sustains the point of order.
CHAPTER 26
Unauthorized Appropriations; Legislation on Appropriation Bills
C. PROVISIONS AS ``CHANGING EXISTING LAW,'' GENERALLY
Sec. 34. Exceptions From Existing Law
Contracts, Competitive Bidding Waived
Sec. 34.1 Language in an appropriation bill providing that purchases
and contracts for supplies or services may be made by the Tennessee
Valley Authority without regard to any law relating to advertising
or competitive bidding was conceded to be legislation on an
appropriation bill and held not in order.
On Dec. 15, 1950,(15) during consideration in the
Committee of the Whole of the second supplemental appropriation bill
(H.R. 9920), a point of order was raised against the following
provision:
---------------------------------------------------------------------------
15. 96 Cong. Rec. 16672, 81st Cong. 2d Sess.
---------------------------------------------------------------------------
Tennessee Valley Authority
For an additional amount, $64,500,000, to remain available
until
[[Page 5806]]
expended: Provided, That purchases and contracts for supplies or
services may be made by the Authority during the fiscal year 1951
without regard to any provisions of law relating to advertising or
competitive bidding.
Mr. [John] Taber [of New York]: Mr. Chairman, I make a point of
order against the proviso on line 9, running down to line 12 on
page 11 that it is legislation on an appropriation bill. . . .
The Chairman: (16) Does the gentleman desire to be
heard further on the point of order?
---------------------------------------------------------------------------
16. Jere Cooper [Tenn.].
---------------------------------------------------------------------------
Mr. [Albert A.] Gore [of Tennessee]: If the gentleman insists
on the point of order it must, in my opinion, be sustained, but I
do feel that the gentleman will make a grievous error in insisting
upon it.
The Chairman: Does the gentleman from New York insist on his
point of order?
Mr. Taber: I insist on my point of order, Mr. Chairman.
The Chairman: The gentleman from New York makes the point of
order that the language referred to is legislation on an
appropriation bill. The gentleman from Tennessee concedes the point
of order.
The Chair sustains the point of order.
Exception From Civil Service Laws
Sec. 34.2 Language in an appropriation bill permitting employment of
personnel ``without regard to civil-service laws and regulations or
the Classification Act of 1923'' was conceded to be legislation and
not in order.
On May 19, 1939,(17) during consideration in the
Committee of the Whole of a general appropriation bill, a point of
order was raised against the following provisions:
---------------------------------------------------------------------------
17. 84 Cong. Rec. 5845, 76th Cong. 1st Sess.
---------------------------------------------------------------------------
Promotion of Foreign Trade
Promotion of foreign trade: For the purpose of carrying into
effect the provisions of section 4 of the act entitled ``An act to
amend the Tariff Act of 1930'', approved June 12, 1934 (48 Stat.
945), as amended, including personal services without regard to
civil-service laws and regulations or the Classification Act of
1923, as amended, stenographic reporting services, by contract if
deemed necessary, without regard to section 3709 of the Revised
Statutes (41 U.S.C. 5),(18) contingent
[[Page 5807]]
expenses, printing and binding, traveling expenses, and such other
expenses as the President may deem necessary, $43,000.
---------------------------------------------------------------------------
18. 41 USC Sec. 5 stated: Unless otherwise provided in the
appropriation concerned or other law, purchases and contracts
for supplies or services for the Government may be made or
entered into only after advertising a sufficient time
previously for proposals, except (1) when the amount involved
in any one case does not exceed $2,500, (2) when the public
exigencies require the immediate delivery of the articles or
performance of the service, (3) when only one source of supply
is available and the Government purchasing or contracting
officer shall so certify, or (4) when the services are required
to be performed by the contractor in person and are (A) of a
technical and professional nature or (B) under Government
supervision and paid for on a time basis. Except (1) as
authorized by section 1638 of Appendix to Title 50, (2) when
otherwise authorized by law, or (3) when the reasonable value
involved in any one case does not exceed $500, sales and
contracts of sale by the Government shall be governed by the
requirements of this section for advertising.
---------------------------------------------------------------------------
Mr. [Carl E.] Mapes [of Michigan]: Mr. Chairman, I desire to
make a point of order against the following language in lines 11
and 12:
Without regard to civil-service laws and regulations or the
Classification Act of 1923, as amended.
I may say, Mr. Chairman, that I confine the point of order to
that specific language in order to avoid a long debate, such as we
got into a little while ago.
Mr. Thomas S. McMillan [of South Carolina]: Mr. Chairman, as
the gentleman has confined his point of order to the specific
language to which he has referred, I will concede the point of
order.
The Chairman: (19) The point of order is sustained.
---------------------------------------------------------------------------
19. Harold D. Cooley (N.C.).
---------------------------------------------------------------------------
Sec. 34.3 Provision in an appropriation bill to enable the President,
through appropriate agencies, to make certain expenditures and
employment of persons without regard to section 3709 of the Revised
Statutes and the civil service laws was held as legislation and not
in order.
On Jan. 30, 1941,(20) during consideration in the
Committee of the Whole of the independent offices appropriation bill
(H.R. 2788), a point of order was raised against the following
provision:
---------------------------------------------------------------------------
20. 87 Cong. Rec. 407, 77th Cong. 1st Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
To enable the President, through appropriate agencies of
the Government, to provide for emergencies affecting the
national security and defense and for each and every purpose
connected therewith, and to make all necessary expenditures
incident thereto without regard to the provisions of law
regulating the expenditure of Government funds or the
employment of persons in the Government service, such as
section 3709 (1) of the Revised Statutes and the
civil service and classification laws, $100,000,000; and, in
addition, the President is authorized, through such agencies,
to enter into contracts during the fiscal year 1942 for the
same purposes to an amount not exceeding $25,000,000: Provided,
That an account shall be kept of all expenditures made or
authorized hereunder, and a report thereon shall be submitted
to the Congress on June 30, 1942.
---------------------------------------------------------------------------
1. See Sec. 34.2, supra, for provisions of Sec. 3709 [41 USC Sec. 5].
---------------------------------------------------------------------------
Mr. [Robert] Ramspeck [of Georgia]: Mr. Chairman, a point of
order.
[[Page 5808]]
Mr. [Francis H.] Case of South Dakota: Mr. Chairman, a point of
order.
The Chairman: (2) The Chair recognizes the gentleman
from South Dakota, a member of the committee.
---------------------------------------------------------------------------
2. R. Ewing Thomason (Tex.).
---------------------------------------------------------------------------
Mr. Case of South Dakota: Mr. Chairman, I make a point of order
against the words ``emergencies affecting,'' beginning in line 8,
and in lines 11 to 15, inclusive, these words:
Without regard to the provisions of law regulating the
expenditure of Government funds or the employment of persons in
the Government service such as section 3709 of the Revised
Statutes and the civil service and classification law.
as being legislation in an appropriation bill.
The Chairman: Does the gentleman from Virginia desire to be
heard on the point of order?
Mr. [Clifton A.] Woodrum of Virginia: With reference to the
latter part of the point of order, Mr. Chairman, undoubtedly that
is legislation, the language in lines 11 to 15 which the gentleman
has quoted. It is legislation and subject to a point of order,
although it is the same language that was carried in the
appropriation bill last year which made available an emergency fund
to the President.
With reference to the language in line 8, I may say that simply
describes the method of using appropriate agencies to provide for
emergencies affecting the national security. I do not see that it
is subject to a point of order.
The Chairman: The point of order is sustained.
Waiving Classification Act
Sec. 34.4 An appropriation for temporary employees at rates to be fixed
by the Director of the Census without regard to the Classification
Act was conceded to be legislation on an appropriation bill and
held not in order.
On Mar. 16, 1945,(3) during consideration in the
Committee of the Whole of a general appropriation bill (H.R. 2603), a
point of order was raised against the following provision:
---------------------------------------------------------------------------
3. 91 Cong. Rec. 2368, 79th Cong. 1st Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
Compiling census reports and so forth: For salaries and
expenses necessary for securing information for and compiling
and publishing the census reports provided for by law, the
collection, compilation and periodic publication of statistics
showing United States exports and imports, and for sample
surveys throughout the United States for the purpose of
estimating the size and characteristics of the Nation's labor
force and population, including personal services at the seat
of government; temporary employees at rates to be fixed by the
Director of the Census without regard to the Classification
Act; the cost of transcribing State, municipal, and other
records; preparation of monographs on census subjects and other
work of specialized character by contract or otherwise; travel
expenses, including not to exceed $4,000 for attendance at
meetings of organizations concerned with the collection of
statistics, when incurred on the written authority of the
Secretary; reimbursement for actual cost of ferry fares and
bridge, road and tunnel tolls, and not to exceed 3 cents per
mile for travel performed
[[Page 5809]]
in privately owned automobiles within the limits of their
official posts of duty, of employees engaged in census
enumeration or surveys; maintenance, repair, and operation of
three motor-propelled passenger-carrying vehicles; construction
and repair of tabulating machines and other mechanical
appliances, and the rental or purchase and exchange of
necessary machinery, appliances, and supplies, including
tabulating cards and continuous form tabulating paper; books of
reference, periodicals, maps, newspapers (not exceeding $200),
$4,757,000. . . .
Mr. [Edward H.] Rees of Kansas: Mr. Chairman, I make the point
of order against the language on page 56 beginning in line 16 with
the word ``temporary'' and ending in line 18 with the word ``act''
that it is legislation on an appropriation bill.
Mr. [Louis C.] Rabaut [of Michigan]: Mr. Chairman, we concede
the point of order.
The Chairman: (4) the point of order is sustained.
---------------------------------------------------------------------------
4. Wilbur D. Mills (Ark.).
---------------------------------------------------------------------------
Sec. 34.5 Language in the District of Columbia appropriation bill
authorizing the commissioners to enter into contracts for the
construction of the first unit of an extensible library building at
a cost not exceeding $1,118,000 and reappropriating the balance of
$60,000 previously appropriated for preparation of plans and
specifications, making same available without regard to the
Classification Act of 1923 or section 3709 of the Revised Statutes
was conceded and held to be legislation on an appropriation bill.
On Apr. 6, 1939,(5) during consideration in the
Committee of the Whole of the District of Columbia appropriation bill
(H.R. 5610), a point of order was raised against the paragraph
containing the following provision:
---------------------------------------------------------------------------
5. 84 Cong. Rec. 3923, 76th Cong. 1st Sess.
---------------------------------------------------------------------------
Not to exceed $350,000 of the unexpended balance of the
appropriation of $500,000 contained in the District of Columbia
Appropriation Act for the fiscal year 1939 for beginning the
construction in square 533 of the first unit of an extensible
building for the government of the District of Columbia is hereby
reappropriated and made available for beginning the construction in
square 491 of the first unit of an extensible library building,
including quarters for the administrative offices of the Board of
Education, (and the Commissioners are authorized to enter into
contract or contracts for the construction of such first unit at a
total cost, including improvement of grounds and all necessary
furniture and equipment, not to exceed $1,118,000: Provided, That
the unexpended balance of the appropriation of $60,000, contained
in such act for the preparation of plans and specifications for a
library building to be constructed on square 491 is continued
available for the same purpose during the fiscal year 1940, and
shall
[[Page 5810]]
be available for the employment of professional and other services,
without reference to the Classification Act of 1923, as amended,
civil-service requirements, or section 3709 of the revised
Statutes).(6)
---------------------------------------------------------------------------
6. See 34.2, supra, for provisions of Sec. 3709 (41 USC Sec. 5).
---------------------------------------------------------------------------
Mr. [Robert F.] Rich [of Pennsylvania]: Mr. Chairman, I make
the point of order against the language beginning on line 23, page
18, after the word ``education,'' down to the end of the paragraph
on page 19, ending in line 10. It is legislation on an
appropriation bill.
The Chairman: (7) Does the gentleman from
Mississippi desire to be heard on the point of order?
---------------------------------------------------------------------------
7. Claude V. Parsons (Ill.).
---------------------------------------------------------------------------
Mr. [Ross A.] Collins [of Mississippi]: The gentleman makes his
point of order to the language beginning with the word ``and'', in
line 23, and ending with line 10 on page 19?
Mr. Rich: Yes.
Mr. Collins: And not to the entire paragraph?
Mr. Rich: Not to the entire paragraph.
Mr. Collins: Mr. Chairman, I concede the point of order.
The Chairman: The point of order is sustained.
Sec. 34.6 An appropriation for the District of Columbia Auditor's
Office coupled with language making part of the money available
``without reference to the Classification Act of 1923, as amended,
and civil-service requirements'' was held to be legislation on an
appropriation bill and not in order.
On Apr. 2, 1937,(8) during consideration in the
Committee of the Whole of the District of Columbia appropriation bill,
a point of order was raised against the following provision:
---------------------------------------------------------------------------
8. 81 Cong. Rec. 3101, 75th Cong. 1st Sess.
---------------------------------------------------------------------------
Auditor's Office
For personal services, $136,700, of which $10,000 shall be
available immediately, without reference to the Classification Act
of 1923, as amended, and civil-service requirements, for
examination of estimates of appropriations, and for other purposes;
and the compensation of the present incumbent of the position of
disbursing officer of the District of Columbia shall be exclusive
of his compensation as United States property and disbursing
officer for the National Guard of the District of Columbia.
Mr. [Ralph O.] Brewster [of Maine]: Mr. Chairman, I make a
point of order against the language, beginning on page 5, line 16,
as follows--
Without reference to the Classification Act of 1923, as
amended, and civil-service requirements--
on the ground that if it is in compliance with existing law it is
unnecessary and if it is not, it is certainly legislation on an
appropriation bill.
The Chairman: (9) Does the gentleman from
Mississippi [Mr. Collins]
[[Page 5811]]
desire to be heard on the point of order?
---------------------------------------------------------------------------
9. Jere Cooper (Tenn.).
---------------------------------------------------------------------------
Mr. [Ross A.] Collins: I do not.
The Chairman: The Chair is of the opinion that the provision to
which the gentleman from Maine has made the point of order is
patently legislation on an appropriation bill which is not
authorized under the rules of the House. Therefore, the point of
order is sustained.
Sec. 34.7 Employment of a real estate expert in the Auditor's Office,
District of Columbia, without reference to civil service
requirements was held legislation on an appropriation bill and not
in order.
On Jan. 31, 1938,(10) during consideration in the
Committee of the Whole of the District of Columbia appropriation bill
(H.R. 9181), a point of order was raised against the following
provision:
---------------------------------------------------------------------------
10. 83 Cong. Rec. 1306, 75th Cong. 3d Sess.
---------------------------------------------------------------------------
Auditor's Office
For personal services, $131,700, of which $2,000 shall be
available without reference to the Classification Act of 1923, as
amended, [and civil-service requirements for the employment of a
real-estate expert, to be immediately available; and the
compensation of the present incumbent of the position of disbursing
officer of the District of Columbia shall be exclusive of his
compensation as United States property and disbursing officer for
the National Guard of the District of Columbia.)
Mr. [Vincent L.] Palmisano [of Maryland]: Mr. Chairman, I make
the point of order that this is legislation upon an appropriation
bill. The point of order is directed to page 5, line 8, after the
words ``as amended'', ``and civil-service requirements for the
employment of a real-estate expert, to be immediately available;
and the compensation of the present incumbent of the position.''
This is legislation.
The Chairman: (11) Does the gentleman from
Mississippi desire to be heard on the point of order?
---------------------------------------------------------------------------
11. William J. Driver (Ark.).
---------------------------------------------------------------------------
Mr. [Ross A.] Collins [of Mississippi]: Is this point of order
made only as to the language ``and civil-service requirements for
the employment of a real-estate expert, to be immediately
available''? Is that the end of it?
Mr. Palmisano: It is in line 8, ``civil-service requirements.''
Mr. Collins: I am trying to find out what the gentleman is
objecting to--``civil-service requirements''?
Mr. Palmisano: Beginning at the paragraph, yes.
Mr. Collins: I have no comment to make on those words, Mr.
Chairman.
The Chairman: The language to which the point of order is
directed is very clearly legislation, and therefore, the point of
order is sustained.
Sec. 34.8 Language in an appropriation bill for the District of
Columbia providing for the employment of a secretary to the
people's counsel, and not to exceed $5,000
[[Page 5812]]
may be used for the employment of expert services by contract or
otherwise and without reference to the Classification Act of 1923,
as amended, was held legislation on an appropriation bill and not
in order.
On Jan. 31, 1938,(12) during consideration in the
Committee of the Whole of the District of Columbia appropriation bill
(H.R. 9181), a point of order was raised against the following
provision:
---------------------------------------------------------------------------
12. 83 Cong. Rec. 1307, 75th Cong. 3d Sess.
---------------------------------------------------------------------------
Public Utilities Commission
For two commissioners, people's counsel, and for other personal
services, $76,000, [of which amount $1,620 shall be available for
the employment of a secretary to the people's counsel, and not to
exceed $5,000 may be used for the employment of expert services by
contract or otherwise and without reference to the Classification
Act of 1923, as amended.]
Mr. [Vincent L.] Palmisano [of Maryland]: Mr. Chairman, I make
a point of order against the language on page 7, line 3, after
``76,000'', and ending with the word ``amended.''
The Chairman: (13) Does the gentleman from
Mississippi desire to be heard on the point of order?
---------------------------------------------------------------------------
13. William J. Driver (Ark.).
---------------------------------------------------------------------------
Mr. [Ross A.] Collins [of Mississippi]: I may say to the
gentleman that this is language that has been carried in this bill
ever since the creation of the Public Utilities Commission, and it
is my understanding that under existing law appropriations can be
made for the employment of expert services. This is not the
language of the committee, but the language of the Budget, and it
is money that is necessary to be appropriated in order that the
Commission may be able to function, and without which I doubt
seriously that they can function.
The Chairman: In the opinion of the Chair, very clearly this is
an attempt to impose legislation on an appropriation bill, and the
point of order is therefore sustained.
Personal Services to the President
Sec. 34.9 A paragraph in a general appropriation bill containing funds
for personal services for the President ``without regard to the
provisions of law'' regulating government employment and for
entertainment expenses to be accounted for solely on the
certificate of the President was conceded to contain legislation
and stricken.
On Aug. 1, 1973,(14) During consideration in the
Committee of the Whole of a general appropriation bill (H.R. 9590), a
point of order was raised against the following provision:
---------------------------------------------------------------------------
14. 119 Cong. Rec. 27286, 27287, 93d Cong. 1st Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
[[Page 5813]]
The White House Office
salaries and expenses
For expenses necessary for the White House Office,
including not to exceed $2,250,000 for services as authorized
by title 5, United States Code, section 3109, at such per diem
rates for individuals as the President may specify, and other
personal services without regard to the provisions of law
regulating the employment and compensation of persons in the
Government service; newspapers, periodicals, teletype news
service, and travel (not to exceed $75,000), and official
entertainment expenses of the President, to be accounted for
solely on his certificate; $9,100,000.
The Chairman: (15) The gentleman from Michigan (Mr.
Dingell) has reserved a point of order.
---------------------------------------------------------------------------
15. Richard Bolling (Mo.).
---------------------------------------------------------------------------
The gentleman will state his point of order.
Mr. [John D.] Dingell: . . . I would point out that this
language appearing on page 12, lines 14 through 25, constitutes a
violation of rule XXI, clause 2, in that it constitutes legislation
in an appropriation bill.
I would point out specifically the language which reads on line
18:
at such per diem rates for individuals as the President may
specify . . .
Clearly this is not sanctioned by authorization or law. And
then the language goes on:
and other personal services without regard to the provisions of
law regulating the employment and compensation of persons in
the Government service . . .
And then the language goes on.
I would state, Mr. Chairman, there is no showing that there is
legislative authority for this particular appropriation. I would
point out again to the Chair that there is a requirement in the
Rules of the House that appropriation committees do bear the burden
of establishing the legislative basis for attempted appropriations.
I would point out that this has not been done, and I insist on the
point of order.
The Chairman: Does the gentleman from Oklahoma desire to be
heard on the point of order?
Mr. [Thomas J.] Steed [of Oklahoma]: Mr. Chairman, we submitted
this item along with many others for expert review by the Office of
Management and Budget, and were advised that the language starting
on line 18 after ``section 3109,''--
at such per diem rates for individuals as the President may
specify, . . .
And going down to line 22, where it says--
in the Government service . . .
And we were advised that the language is subject to a point of
order, and we concede the point of order.
We were also advised that the language on page 12, line 23,
after--
(not to exceed $75,000) . . .
The words--
and official entertainment expenses of the President, to be
accounted for solely on his certificate . . .
Is also subject to a point of order, and we concede that.
The rest of it is not subject to a point of order because it is
provided by law.
The Chairman: The Chair is ready to rule.
[[Page 5814]]
If the Chair understands correctly, the gentleman from Michigan
(Mr. Dingell) has made a point of order against various items in
the paragraph and therefore makes a point of order against the
entire paragraph?
Mr. Dingell: Mr. Chairman, that is correct.
The Chairman: Unless the gentleman from Texas desires to be
heard, the Chair is ready to rule on the point of order to the
paragraph.
Mr. [Robert C.] Eckhardt [of Texas]: Mr. Chairman, a
parliamentary inquiry.
The Chairman: The gentleman will state his parliamentary
inquiry.
Mr. Eckhardt: Mr. Chairman, I have been about to raise a point
of order on the provision ``to be accounted for solely on his
certificate.'' I understand that this is conceded.
The Chairman: The Chair also understands it is conceded. The
Chair's understanding of the situation is that the point of order
made by the gentleman from Michigan lies against the whole of the
paragraph. The Chair is prepared to rule that the point of order
has been conceded and is sustained, and that the whole paragraph,
therefore, is stricken.
Travel Expenses
Sec. 34.10 Language in a general appropriation bill providing for
transportation of prisoners in the custody of United States
marshals to narcotic farms without regard to the act of Jan. 19,
1929, and also providing that marshals and their deputies may be
allowed, in lieu of actual expenses of transportation, up to four
cents per mile for use of privately owned automobiles when
traveling on official business, was conceded to be legislation on
an appropriation bill and held not in order.
On Mar. 16, 1945,(16) during consideration in the
Committee of the Whole of a general appropriation bill (H.R. 2603),
points of order were raised against the following provision:
---------------------------------------------------------------------------
16. 91 Cong. Rec. 2363, 79th Cong. 1st Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
Salaries and expenses of marshals, etc.: For salaries, fees
and expenses of United States marshals, deputy marshals, and
clerical assistants, including services rendered in behalf of
the United States or otherwise; services in Alaska in
collecting evidence of the United States when so specifically
directed by the Attorney General; traveling expenses, including
the actual and necessary expenses incident to the transfer of
prisoners in the custody of United States marshals to narcotic
farms [without regard to the provisions of the act approved
January 19, 1929 (21 U.S.C. 227);] (17) purchase,
when authorized by the Attorney General, of two motor-propelled
passenger-carrying vans at not to exceed $2,000 each; and
maintenance, repair, and operation of motor-propelled
passenger-carrying vehicles $3,980,000: [Pro
[[Page 5815]]
vided, That United States marshals and their deputies may be
allowed, in lieu of actual expenses of transportation, not to
exceed 4 cents per mile for the use of privately owned
automobiles when traveling on official business within the
limits of their official station.]
---------------------------------------------------------------------------
17. 21 Sec. 227 provided for the transfer of prisoner addicts to and
from farms.
---------------------------------------------------------------------------
Mr. [Francis H.] Case of South Dakota: Mr. Chairman, I make the
point of order against the language in line 11, running down into
line 13, which reads as follows: ``without regard to the provisions
of the act approved January 19, 1929 (21 U.S.C. 27)'' on the ground
that it is amendatory of existing law.
Mr. [Louis C.] Rabaut [of Michigan]: We concede the point of
order, Mr. Chairman.
The Chairman: (18) The point of order is sustained.
---------------------------------------------------------------------------
18. Wilbur D. Mills (Ark.).
---------------------------------------------------------------------------
Mr. [Robert F.] Rich [of Pennsylvania]: Mr. Chairman, I make
the point of order against the language in line 17, beginning with
the word ``Provided'' to the end of the paragraph, that it is
legislation on an appropriation bill.
Mr. Rabaut: We concede the point of order, Mr. Chairman.
The Chairman: The point of order is sustained.
Sec. 34.11 Language in a general appropriation bill providing that the
Secretary of State is authorized to pay the actual transportation
expenses and $10 per diem in lieu of subsistence of citizens of the
other American republics while traveling in the Western Hemisphere
without regard to the standardized government travel regulations
and to make advances of funds notwithstanding section 3648 of the
Revised Statutes, and to make contracts and grants of money without
regard to section 3709 of the Revised Statutes, was held
legislation on an appropriation bill and not in order.
On Mar. 15, 1945,(19) during consideration in the
Committee of the Whole of a general appropriation bill (H.R. 2603), the
following transpired:
---------------------------------------------------------------------------
19. 91 Cong. Rec. 2307, 2308, 79th Cong. 1st Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
Cooperation with the American republics: For all expenses
necessary to enable the Secretary of State to meet the
obligations of the United States under the Convention for the
Promotion of Inter-American Cultural Relations between the
United States and the other American republics, signed at
Buenos Aires, December 23, 1936, and to carry out the purposes
of the Act entitled ``An Act to authorize the President to
render closer and more effective the relationship between the
American republics,'' approved August 9, 1939, and to
supplement appropriations available for carrying out other
provisions of law authorizing related activities . . . such
expenses to include personal services in the District of
Columbia, not to exceed $125,000 for printing and binding;
stenographic reporting, translating and other services by
contract, without regard
[[Page 5816]]
to section 3709 of the Revised Statutes (41 U.S.C. 5)
(20) . . . Provided, That the Secretary of State is
authorized under such regulations as he may adopt, [to pay the
actual transportation expenses and not to exceed $10 per diem
in lieu of subsistence and other expenses, of citizens of the
other American republics while traveling in the Western
Hemisphere, without regard to the Standardized Government
Travel Regulations, and to make advances of funds
notwithstanding section 3648 of the Revised Statutes]
(1) . . . and the Secretary of State, or such
official as he may designate is hereby authorized, in his
discretion, [to make contracts with, and grants of money or
property to, governmental and public or private nonprofit
institutions and facilities in the United States and the other
American republics, including the free distribution, donation,
or loan of publications, phonograph records, radio
transcriptions, art works, motion-picture films, educational
material, and other material and equipment, and other
gratuitous assistance in the fields of the arts and sciences,
education and travel, publications, the radio, the press, and
the cinema; all without regard to the provisions of section
3709 of the Revised Statutes.]. . . .
---------------------------------------------------------------------------
20. See Sec. 34.2, supra, for provisions of 41 USC Sec. 5.
1 Section 3648 provided: No advance of public money shall be made in
any case unless authorized by the appropriation concerned or
other law. And in all cases of contracts for the performance of
any service, or the delivery of articles of any description,
for the use of the United States, payment shall not exceed the
value of the service rendered, or of the articles delivered
previously to such payment. It shall, however, be lawful, under
the special direction of the President, to make such advances
to the disbursing officers of the Government as may be
necessary to the faithful and prompt discharge of their
respective duties, and to the fulfillment of the public
engagements. The President may also direct such advances as he
may deem necessary and proper, to persons in the military and
naval service employed on distant stations, where the discharge
of the pay and emoluments to which they may be entitled cannot
be regularly effected.
---------------------------------------------------------------------------
Mr. [Edward H.] Rees [of Kansas]: Mr. Chairman, I make the
point of order against the language on page 33, line 16, beginning
with the word ``to'' and ending with the word ``Statutes'', on line
22, that it is legislation on an appropriation bill and without
authority in law.
Mr. (Emmet) O'Neal [of Kentucky]: Mr. Chairman, a great many
points of order are being made on matters which seem to me to be
largely administrative. I believe that executives should not need
authority in law for many things which in the common ordinary
practice of business or operation of Government bureaus are
considered to be part of an executive job. The tendency of our
courts in recent years has been to do away with legal
technicalities which often defeat justice. Sometimes I feel that
the House defeats proper legislation by a too strict adherence to
superannuated procedure. If you must have laws to authorize every
little incidental effort to be made by an executive, it would be
impossible, in my opinion, for any executive to carry on properly
the business of his office.
[[Page 5817]]
You could go through any appropriation bill and pick out small
duties that an executive is called upon to do which could not be
authorized specifically by any act of Congress because they are too
multitudinous. . . .
The Chairman: (2) Does the gentleman from Kansas
insist on his point of order?
---------------------------------------------------------------------------
2 Wilbur D. Mills (Ark.).
---------------------------------------------------------------------------
Mr. Rees of Kansas: Mr. Chairman, the gentleman from Kansas
does insist on his point of order and suggests that after all the
Appropriations Committee is not a legislative committee, as I
understand it.
The Chairman: The gentleman from Kansas insists on his point of
order.
The Chair is ready to rule.
The language referred to by the gentleman from Kansas
definitely changes existing law and therefore is subject to a point
of order. The Chair is constrained to sustain the point of order.
Mr. Rees of Kansas: Mr. Chairman, a further point of order.
The Chairman: The gentleman will state it.
Mr. Rees of Kansas: Mr. Chairman, I make the point of order
against the language beginning on page 34, line 9, with the
word``to'' and extending down to and including line 6 on page 35,
that it is legislation on an appropriation bill and without
authority of law.
Mr. [Louis C.] Rabaut [of Michigan]: Mr. Chairman, this is
based on 22 United States Code 501, 502, and is in use by other
agencies of the Government.
The Chairman: The Chair calls to the attention of the gentleman
from Michigan that there is a specific waiver of existing law in
regard to the very subject mentioned by him.
Mr. Rabaut: Then, Mr. Chairman, we will have to concede the
point of order.
The Chairman: The Chair sustains the point of order.
International Conferences, Incidental Printing Expenses
Sec. 34.12 Language in a general appropriation bill permitting the
Secretary of State under the heading ``International conferences
(emergency)'' for ``printing and binding without regard to section
11 of the act of March 1, 1919 (44 U.S.C. 111)'' was conceded to be
legislation on an appropriation bill and held not in order.
On Mar. 15, 1945,(3) during consideration in the
Committee of the Whole of a general appropriation bill (H.R. 2305),
a point of order was raised against the following provision:
---------------------------------------------------------------------------
3. 91 Cong. Rec. 2305, 2306, 79th Cong. 1st Sess.
---------------------------------------------------------------------------
International conferences (emergency): For all necessary
expenses, without regard to section 3709 of the Revised
Statutes,(4) of participation by the United States, upon
approval by the Secretary of State, in international activities
which arise from time to time in the conduct of foreign affairs and
for which specific appropriations have not
[[Page 5818]]
been provided pursuant to treaties, conventions, or special acts of
Congress, including personal services in the District of Columbia
or elsewhere without regard to civil service and classification
laws; employment of aliens; travel expenses without regard to the
Standardized Government Travel Regulations and the Subsistence
Expense Act of 1926, as amended; transportation of families and
effects under such regulations as the Secretary of State may
prescribe; stenographic and other services; rent of quarters by
contract or otherwise; purchase or rental of equipment, purchase of
supplies, books, maps, periodicals and newspapers; transportation
of things; contributions for the share of the United States in
expenses of international organizations; [printing and binding
without regard to section 11 of the act of March 1, 1919 (44 U.S.C.
111); (5) entertainment;] and representation allowances
as authorized by the act of February 23, 1931, as amended (22
U.S.C. 12, 23c); $1,500,000.
---------------------------------------------------------------------------
4. See Sec. 34.2, supra, for provisions of 41 USC Sec. 5.
5. 44 USC Sec. 111 referred to government printing required to be done
at the Government Printing Office.
---------------------------------------------------------------------------
Mr. [Joseph P.] O'Hara [of Minnesota]: Mr. Chairman, I make the
point of order against that part of the paragraph commencing in
line 20 on page 21 with the word ``printing'' and extending down to
and including the figure ``$1,500,000'', in line 24, that it is
legislation on an appropriation bill and is contrary to the
specific law against such expenditures.
The Chairman: (6) Does the gentleman desire to
include the sum of money contained in the paragraph within his
point of order?
---------------------------------------------------------------------------
6. Wilbur D. Mills (Ark.).
---------------------------------------------------------------------------
Mr. O'Hara: No; I do not intend to include the sum of money.
The Chairman: The gentleman intends, then, to include the
language in lines 20, 21, 22, and 23?
Mr. O'Hara: Yes.
Mr. [Louis C.] Rabaut [of Michigan]: Mr. Chairman, I concede
the point of order.
The Chairman: The point of order is sustained.
Purchase of Reindeer; Waiving Certain Laws Regulating Contracts
Sec. 34.13 Provision in an appropriation bill authorizing the purchase
of reindeer without regard to sections 3709 and 3744 of the Revised
Statutes was conceded to be legislation and held not in order.
On Mar. 15, 1939,(7) during consideration in the
Committee of the Whole of the Interior Department appropriation bill
(H.R. 4852), a point of order was raised against the following
provision:
---------------------------------------------------------------------------
7. 84 Cong. Rec. 2789, 76th Cong. 1st Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
Reindeer industry, Alaska: For the purchase, in such manner
as the Secretary of the Interior shall deem advisable and
without regard to sections 3709 (8) and 3744
(9) of the Re
[[Page 5819]]
vised Statutes, of reindeer, abbatoirs, cold-storage plants,
corrals, and other buildings, and communication and other
equipment, owned by nonnatives in Alaska, as authorized by the
act of September 1, 1937 (50 Stat. 900), $820,000; and for
necessary administrative expenses in connection with such
purchase and the establishment and development of the reindeer
industry for the benefit of the Eskimos and other natives of
Alaska, as authorized by said act, including personal services
in the District of Columbia (not to exceed $2,300) and
elsewhere, traveling expenses, erection, repair, and
maintenance of corrals, fences, and other facilities $250,000;
in all $1,070,000 to be immediately available: Provided, That
under this appropriation not exceeding an average of $4 per
head shall be paid for reindeer purchased from nonnative
owners: Provided further, That the foregoing limitation shall
not apply to the purchase of reindeer located on Nunivak
Island.
---------------------------------------------------------------------------
8. See Sec. 34.2, supra, for provisions of Sec. 3709.
9. Section 3744 referred in part to contracts made by the Secretary of
the Interior required to be in writing, and copies to be filed
as specified.
---------------------------------------------------------------------------
Mr. [John C.] Schafer of Wisconsin: Mr. Chairman, I make the
point of order against the paragraph on the ground that it is
legislation on an appropriation bill unauthorized by law. In fact,
the language clearly indicates that it repeals the specific
provisions of existing law as incorporated in sections 3709 and
3744 of the Revised Statutes.
The Chairman: (10) Does the gentleman from Oklahoma
desire to be heard?
---------------------------------------------------------------------------
10. Frank H. Buck (Calif.).
---------------------------------------------------------------------------
Mr. (Jed) Johnson of Oklahoma: No; I concede the point of
order.
The Chairman: The point of order is sustained.
Waiving Application of Davis-Bacon
Sec. 34.14 An amendment to a general appropriation bill making
inapplicable those provisions of law, requiring payment of
prevailing wage rates under federal construction contracts, to
wages paid under contracts funded by that bill, was conceded to be
legislation waiving existing law and not in the form of a
limitation.
On Sept. 16, 1981,(11) during consideration in the
Committee of the Whole of the military construction appropriation bill
(H.R. 4241), a point of order was raised and sustained against
amendments offered to the bill, as follows:
---------------------------------------------------------------------------
11. 127 Cong. Rec. 20737, 20738, 97th Cong. 1st Sess.
---------------------------------------------------------------------------
Amendments offered by Mr. [M. Caldwell] Butler [of Virginia]:
Page 2, line 11, strike out ``$1,029,519,000'' and insert in lieu
thereof ``$1,009,276,-400''. . . .
Sec. 123. The provisions of the Act of March 3, 1931 (40 U.S.C.
276a-276a-5; 46 Stat. 1494), commonly referred to as the Davis-
Bacon Act, shall not apply to the wages paid to laborers and
mechanics for any work or services performed under any contract
entered into on or after the date of enactment of this Act for the
construction of any project funds for which are appropriated by
this Act. . . .
[[Page 5820]]
Mr. [Bo] Ginn [of Georgia]: Mr. Chairman, I make a point of
order against the amendments because they constitute legislation in
an appropriations bill, which is in violation of clause 2, rule
XXI. . . .
Mr. Butler: Mr. Chairman, if the gentleman insists on his point
of order, I will not put him further to the proof. I will concede
that perhaps he is correct.
The Chairman: (12) The Chair sustains the point of
order.
---------------------------------------------------------------------------
12. Philip R. Sharp (Ind.).
---------------------------------------------------------------------------
Waiving Certain Laws Regulating Contracts
Sec. 34.15 Language in a general appropriation bill waiving the
provisions of existing law was held to constitute legislation where
the law being waived did not specifically permit exceptions
therefrom to be contained in appropriation bills.
On Nov. 13, 1975,(13) it was held that, while 41 United
States Code section 5 provides that ``unless otherwise provided in the
appropriation concerned or other law, purchases and contracts for
supplies or services for the government may be made or entered into
only after advertising a sufficient time previously for proposals'',
language in a general appropriation bill authorizing the Congressional
Budget Office to contract without regard to that provision constituted
legislation in violation of Rule XXI clause 2, based upon a prior
ruling of the Chair and also upon the language of the statute itself
permitting an appropriation or other law, but not a bill, to waive its
provisions. The proceedings are discussed in Sec. 37.13, infra.
---------------------------------------------------------------------------
13. 121 Cong. Rec. 36271, 94th Cong. 1st Sess.
---------------------------------------------------------------------------
CHAPTER 26
Unauthorized Appropriations; Legislation on Appropriation Bills
C. PROVISIONS AS ``CHANGING EXISTING LAW,'' GENERALLY
Sec. 35. Change in Source of Appropriated Funds or in Methods of
Financing
Change in Source of Funds--Reclamation Fund/General Fund
Sec. 35.1 Where existing law authorizes appropriations out of a
reclamation fund for surveys, it has been held not in order to
appropriate money out of the general funds of the Treasury for such
surveys.
On May 17, 1937,(14) H.R. 6958, the Department of the
Interior appropriation for 1938, was being considered in the Committee
of the Whole. At one point, the Clerk read as follows:
---------------------------------------------------------------------------
14. 81 Cong. Rec. 4692, 75th Cong. 1st Sess.
---------------------------------------------------------------------------
Grand Coulee Dam, Wash.: For continuation of construction of
Grand Cou
[[Page 5821]]
lee Dam and appurtenant works, $13,000,000, together with the
unexpended balance of the appropriation for this dam contained in
the Interior Department Appropriation Act, fiscal year 1937:
Provided, That of this amount not to exceed $250,000 may be
expended for economic, industrial, and mineral surveys.
Mr. (Francis D.) Culkin (of New York): Mr. Chairman, I make the
point of order not against the first portion of the paragraph, but
to the proviso on the ground that that amount is not authorized by
law, and in corroboration of that fact I say to the Chair that
legislation passed this afternoon cannot possibly have become law
as yet.
The Chairman: (15) Does the gentleman from Nevada
desire to be heard on the point of order?
---------------------------------------------------------------------------
15. Jere Cooper (Tenn.).
---------------------------------------------------------------------------
Mr. [James G.] Scrugham [of Nevada]: Mr. Chairman, the act
authorizing the reclamation project provides for such surveys.
Mr. [John] Taber [of New York]: That would not make any
difference here, as this would come directly out of the Treasury
and not out of the reclamation fund.
The Chairman: Can the gentleman from Nevada cite the Chair to
any definite provision of law authorizing the appropriation of
money out of the general funds in the Treasury for the making of
economic or mineral surveys?
Mr. Scrugham: The act authorizing the reclamation project,
United States Code, page 1862, paragraph 391, authorizes an
appropriation to be known as the reclamation fund to be used in
examination and survey for the construction and maintenance of
irrigation works for storage, diversion, and development of waters
and reclamation of semiarid lands in such States and Territories.
The Chairman: The Chair calls the attention of the gentleman to
the fact that apparently this appropriation does not come out of
the reclamation fund but out of the general fund of the Treasury.
Does the gentleman desire to make any further comments or cite any
further authority?
Mr. Scrugham: Did the gentleman from New York make the point of
order only to the proviso?
Mr. Culkin: That is all.
Mr. Scrugham: I concede the point of order.
The Chairman: The gentleman from New York makes the point of
order to the proviso appearing in line 9, page 82. Apparently this
is an appropriation of money out of the general funds in the
Treasury not authorized by existing law. The Chair, therefore,
sustains the point of order as to the proviso.
Sec. 35.2 Language in a general appropriation bill appropriating funds
out of the general funds of the Treasury (and not out of a
reclamation fund) for general investigations of proposed federal
reclamation projects, was held to be unauthorized by law.
On Mar. 2, 1938, (16) H.R. 9621, the Department of the
Interior ap
[[Page 5822]]
propriation for 1939, was under consideration in the Committee of the
Whole. The following proceedings took place:
---------------------------------------------------------------------------
16. 83 Cong. Rec. 2710, 2711, 75th Cong. 3d Sess.
---------------------------------------------------------------------------
For general investigations, $200,000, to enable the Secretary
of the Interior, through the Bureau of Reclamation, to carry on
engineering and economic investigations of proposed Federal
reclamation projects, surveys for reconstruction, rehabilitation,
or extension of existing projects and studies of water conservation
and development plans, such investigations, surveys, and studies to
be carried on by said Bureau either independently, or, if deemed
advisable by the Secretary of the Interior, in cooperation with
State agencies, and other Federal agencies, including the Corps of
Engineers, National Resources Committee, and the Federal Power
Commission;
Mr. [John] Taber [of New York]: Mr. Chairman, I make the point
of order against the paragraph beginning on line 18, page 85,
ending with line 4, page 86, upon the ground that it is legislation
on an appropriation bill and is not authorized by law.
Mr. [James C.] Scrugham [of Nevada]: Mr. Chairman, this is
authorized in my opinion in the general terms of the Reclamation
Act. It has been in effect for many years.
Mr. Taber: Mr. Chairman, an appropriation in accordance with
the authorization under the Reclamation Act is provided on page 77,
line 8, down to and including line 3 on page 78. The appropriation
is $25,000. That is the authorized appropriation. I do not believe
there is any authority for this out of the general fund of the
Treasury.
The Chairman: (17) The Chair has examined sections
411 and 396, United States Code, title 43, and it seems to the
Chair that under the terms of these two sections which are rather
broad in their application, this appropriation may be authorized.
---------------------------------------------------------------------------
17. Marvin Jones (Tex.).
---------------------------------------------------------------------------
Mr. Taber: Is not that limited to the reclamation fund?
The Chairman: The Chair was looking particularly with reference
to that. The Chair will read the entire section 411:
The Secretary of the Interior is authorized and directed to
make examinations and surveys for, and to locate and construct,
as provided in this chapter, irrigation works for the storage,
diversion, and development of waters, including artesian wells,
and to report to Congress at the beginning of each regular
session as to the results of such examinations and surveys,
giving estimates of cost of all contemplated works, and
quantity and location of the lands which can be irrigated
therefrom, and all facts relative to the practicability of each
irrigation project; also the cost of works in process of
construction as well as of those which have been completed.
Mr. Taber: I call the attention of the Chair to the language:
The Secretary of the Interior is authorized under the
provisions of this chapter--
That is where the authority of the Secretary of the Interior
and the reclamation fund are defined. That would imply that it is
to be done under the provisions of the reclamation fund. It would
seem to me that that is the authority under which they operated in
[[Page 5823]]
providing the appropriation that is to be found on page 77.
The Chairman: Does the gentleman from Nevada desire to comment
on this, or the gentleman from Oklahoma? On consideration it seems
to the Chair that this comes out of the general fund in the
Treasury and not the reclamation fund, and this is limited in the
way suggested by the gentleman from New York.
Mr. Scrugham: Section 411 seems to cover the matter.
The Chairman: If this were out of the reclamation fund, there
would be no question about it, but this appropriation is out of the
general fund in the Treasury. The Chair is of opinion that the
paragraph is subject to the point of order inasmuch as the
appropriation is made out of the general fund and not the
reclamation fund. The Chair sustains the point of order.
--General Fund; Timber Sale Receipts
Sec. 35.3 A provision in a general appropriation bill providing funds
for an agricultural project, for which funding had been authorized
from the receipts of timber sales and not from appropriated funds,
was ruled out as legislation in violation of Rule XXI clause 2.
On May 26, 1969,(18) during consideration in the
Committee of the Whole of the Agriculture Department appropriation bill
(H.R. 11612), a point of order was raised against the following
provision:
---------------------------------------------------------------------------
18. 115 Cong. Rec. 13754, 13755, 91st Cong. 1st Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
Cooperative State Research Service
payment and expenses
For payments to agricultural experiment stations, for
grants for cooperative forestry and other research, for
facilities, and for other expenses, including $53,854,000 to
carry into effect the provisions of the Hatch Act, approved
March 2, 1887, as amended by the Act approved August 11, 1955
(7 U.S.C. 361a-361i), including administration by the United
States Department of Agriculture; $3,785,000 for grants for
cooperative forestry research under the Act approved October
10, 1962 (16 U.S.C. 582a-582a-7), [of which amount, the sum of
$201,642.80 shall be paid to those States for the benefit of
the counties from which timber receipts earned as a result of
agreements entered into under the authority of the Weeks Act
(16 U.S.C. 500) have been withheld;] $2,000,000 in addition to
funds otherwise available for contracts and grants for
scientific research under the Act of August 4, 1965 (7 U.S.C.
450i) of which $1,000,000 shall be for the special cotton
research program and $400,000 for soybean research; $1,000,000
for grants for facilities under the Act approved July 22, 1963
(7 U.S.C. 390-390k); $160,000 for penalty mail costs of
agricultural experiment stations under section 6 of the Hatch
Act of 1887, as amended; and $376,000 for necessary expenses of
the Cooperative State Research Service, including
administration of payments to State agricul
[[Page 5824]]
tural experiment stations, funds for employment pursuant to the
second sentence of section 706(a) of the Organic Act of 1944 (7
U.S.C. 2225), and not to exceed $50,000 for employment under 5
U.S.C. 3109; in all, $61,175,000.
Mr. [Sidney R.] Yates [of Illinois]: Mr. Chairman, I make a
point of order against the language contained on page 6, lines 22,
23, 24, and 25, and on page 7, lines 1 and 2, through the word
``withheld''.
My point of order is predicated on four grounds.
First, this is legislation in an appropriation bill. Under the
so-called Weeks Act, lands may be transferred by States to the
Federal Government under an agreement to pay 75 percent of the
funds for timber cut for school purposes and for roads, but under
the Civil Rights Act of 1964, such funds come within the purview of
moneys to be paid by the Federal Government to the States. The
Attorney General and other appropriate agencies have determined the
so-called Weeks Act falls within the purview of that act.
Therefore, in requiring funds to be paid under the Weeks Act in
contravention to the decision of the Attorney General that no such
funds should be paid, it changes the Civil Rights Act of 1964.
Second, Mr. Chairman, it establishes an affirmative direction
to the Secretary of Agriculture or to one of his subordinates to
make a payment. It requires him to take a specific action. It says
the money shall be paid. Contrary to other provisions of this
appropriation bill, which say that funds shall be available for
certain purposes, this is a direction, a mandate, a requirement to
an executive officer to take certain steps.
Third, Mr. Chairman, this is an appropriation without authority
of law. If the Chair will note the citation for the funds, it is
given as 16 U.S.C. 582a-582a-7. Mr. Chairman, I have read those
sections very carefully, and I find no authority in those sections
for making this particular payment. I have the code before me. The
code is directed to a sustained yield forest management program. It
does not provide for any payments to be made under the so-called
Weeks Act.
Finally, Mr. Chairman, assuming that there is authority under
the Weeks Act, this language is not directed to authority under the
Weeks Act. Assuming whatever authority the Weeks Act provided for
payment of certain funds, that authority no longer exists when
appropriate agencies of the Federal Government take steps to
suspend payments that were authorized under that law, taking the
steps authorized under another act.
For example, whatever authority the Weeks Act gave to make such
payments, that authority was suspended by the action taken under
the Civil Rights Act of 1964 authorizing the Attorney General to
suspend any payments to counties which did not require their
schools to desegregate in accordance with the law.
For those reasons, Mr. Chairman, I respectfully suggest that
the point of order should be sustained. . . .
The Chairman: (19) he gentleman from Illinois
reserves his point of order.
---------------------------------------------------------------------------
19. James C. Wright, Jr. (Tex.).
---------------------------------------------------------------------------
Mr. [Jamie L.] Whitten [of Mississippi]: Mr. Chairman, our
committee realizes its limitations, but I think it
[[Page 5825]]
well to point out in connection with the point of order that the
authority under which the committee has attempted to act is that
found in 582 of title 16, the language which is in line 22. . . .
Mr. Chairman, in view of the words ``shall be paid'' I would
have to agree that the section is subject to a point of order.
The Chairman: The gentleman from Mississippi concedes that the
language is subject to a point of order.
Does the gentleman from Illinois insist upon his point of
order.
Mr. Yates: Mr. Chairman, I insist on my point of order.
The Chairman: The Chair sustains the point of order of the
gentleman from Illinois (Mr. Yates). The language of the bill
beginning in line 23, page 6, to and through the word ``withheld''
on line 2, page 7, constitutes a diversion of funds from authorized
appropriations for an unauthorized purpose; and the Chair sustains
the point of order against that language.
Borrowing Authority in Lieu of Appropriation
Sec. 35.4 A provision in a general appropriation bill appropriating a
specific sum of money and providing that such sum would be borrowed
from the Reconstruction Finance Corporation and directing such
corporation to lend such amount notwithstanding the provisions of
law was conceded to be legislation and held not in order.
On Feb. 2, 1940,(20) the Committee of the Whole was
considering H.R. 8202, an Agriculture Department appropriation. At one
point the Clerk read as follows:
---------------------------------------------------------------------------
20. 86 Cong. Rec. 1033, 76th Cong. 3d Sess.
---------------------------------------------------------------------------
Loans: For loans in accordance with sections 3, 4, and 5, and
the purchase of property in accordance with section 7 of the Rural
Electrification Act of May 20, 1936, as amended (7 U.S.C. 901-914),
$40,000,000, [which sum shall be borrowed from the Reconstruction
Finance Corporation in accordance with the provisions of section
3(a) of said act, and shall be considered as made available
thereunder; and the Reconstruction Finance Corporation is hereby
authorized and directed to lend such sum in addition to the amounts
heretofore authorized under said section 3(a) and without regard to
the limitation in respect of time contained in section 3(e) of said
act.]
Mr. [John] Taber [of New York]: Mr. Chairman, I make a point of
order against the language beginning on page 84, line 7, with the
word ``which'', and ending with the word ``act,'' in line 15, that
it is legislation upon an appropriation bill.
Mr. [Clarence] Cannon of Missouri: Mr. Chairman, I concede the
point of order.
The Chairman: (1) The gentleman from Missouri
concedes the point of order. The point of order is sustained.
---------------------------------------------------------------------------
1. William P. Cole, Jr. (Md.).
---------------------------------------------------------------------------
Direct Authorization and Appropriation in Lieu of Treasury Financing
Sec. 35.5 Where the authorizing legislation provided (1) that
[[Page 5826]]
a program should be financed through sale of notes issued by the
Secretary of Commerce, and (2) further authorized the Secretary of
the Treasury to purchase such notes, using, as a public-debt
transaction, the proceeds from the sale of securities issued under
the Second Liberty Bond Act, a provision in an appropriation bill
providing a direct appropriation, in lieu of the treasury
financing, was held to be legislation amending existing law to
provide a direct authorization for that appropriation.
On Sept. 15, 1961,(2) during consideration in the
Committee of the Whole of a supplemental appropriation bill (H.R.
9169), a point of order was raised against the following provision:
---------------------------------------------------------------------------
2. 107 Cong. Rec. 19726, 19727, 87th Cong. 1st Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
Area Redevelopment Administration
Area redevelopment assistance
For necessary expenses of the Area Redevelopment
Administration in carrying out the Area Redevelopment Act
(Public Law 87-27), $168,000,000, [of which not to exceed
$122,500,000 shall remain available until expended for loans
and participations as authorized by section 6 and public
facility loans as authorized by section 7 of such Act], not to
exceed $40,000,000 shall remain available until expended for
public facility grants as authorized by section 8, not to
exceed $2,250,000 shall be available for technical assistance
as authorized by section 11, and not to exceed $3,250,000 shall
be available for necessary expenses, not otherwise provided
for, including rent in the District of Columbia and hire of
passenger motor vehicles, [and any funds heretofore borrowed
from the Secretary of the Treasury under section 9 of such Act
shall be repaid from this appropriation and such section 9 is
hereby amended to read as follows: ``There are hereby
authorized to be appropriated for the purpose of extending
financial assistance under sections 6 and 7 such amounts as may
be necessary to furnish financial assistance in the maximum
amounts authorized under such sections].''
Mr. [Albert] Rains [of Alabama]: Mr. Chairman, I make a point
of order against the following language, on the ground it proposes
to change existing law and is legislation on an appropriation bill:
Page 4, beginning with the figure ``$168,000,000'', line 19,
and running through line 22; and on page 5, beginning with ``and
any funds'', line 4, running through line 12, except the period. .
. .
Mr. [Albert] Thomas [of Texas]: . . . But if the gentleman
feels that he cannot withdraw his point of order, I will join the
gentleman in his point of order and ask that the entire paragraph
be stricken.
The Chairman: (3) Does the gentleman from Texas [Mr.
Thomas] make
[[Page 5827]]
a point of order against the entire paragraph?
---------------------------------------------------------------------------
3. Oren Harris (Ark.).
---------------------------------------------------------------------------
Mr. Thomas: The entire paragraph.
The Chairman: The point of order is sustained.
Replacing Treasury Borrowing With Direct Authorization for
Appropriations; Housing and Home Finance Administrator
Sec. 35.6 Language in a general appropriation bill terminating the
authority of the Housing and Home Finance Administrator to finance
mass transportation projects through the issuance of notes and
obligations for purchase by the Secretary of the Treasury, and
substituting a direct authorization for appropriation for financing
based on a public-debt transaction, was conceded to be legislation
and was ruled out on a point of order.
On Sept. 15, 1961,(4) during consideration in the
Committee of the Whole of a supplemental appropriation bill (H.R.
9169), a point of order was raised against the following provision:
---------------------------------------------------------------------------
4. 107 Cong. Rec. 19729, 19730, 87th Cong. 1st Sess.
---------------------------------------------------------------------------
Mass Transportation Loans and Grants
For loans including purchase of securities and obligations in
connection with mass transportation facilities, as authorized by
clause (2) of section 202(a) of the Housing Amendments of 1955, as
amended (42 U.S.C. 1492; 75 Stat. 173), and grants in connection
with mass transportation demonstration projects, as authorized by
section 103(b) of the Housing Act of 1949, as amended (42 U.S.C.
1453; 75 Stat. 166), $42,500,000, of which not to exceed $130,000
shall be available for administrative expenses in connection
therewith, and on and after the date of enactment of this Act, the
authority to issue notes and other obligations for the purposes of
clause (2) of section 202(a) of the Housing Amendments of 1955, as
amended, shall cease, and in lieu of such authority $50,000,000 is
hereby authorized to be appropriated for such purpose, and the
proviso to the first sentence of section 103(b) of the Housing Act
of 1949, as amended, is hereby amended by inserting after the word
``may'' the phrase ``within the limits of appropriations made
available therefor and''.
Mr. [Albert] Rains [of Alabama]: Mr. Chairman, a point of
order.
The Chairman: (5) The gentleman will state it.
---------------------------------------------------------------------------
5. Oren Harris (Ark.).
---------------------------------------------------------------------------
Mr. Rains: . . . Mr. Chairman, reluctantly I make this point of
order. This is not an opportunity to save money; this is an
opportunity completely to change the law.
This language would terminate the authority of the Housing and
Home Fi
[[Page 5828]]
nance Administrator under section 202 of the Housing Amendments of
1955 to borrow from the Treasury. So it hits the big problem to
provide funds for loans to public bodies to purchase mass
transportation facilities.
It would also amend section 103(b) of the Housing Act of 1949
by limiting the Administrator's contract authority for grants for
mass transportation demonstration projects to amounts within the
limits of the appropriation made available by the contracts; and
for that reason, because it is evidently legislation on an
appropriation bill, I must regretfully make the point of order.
The Chairman: Does the gentleman from Texas wish to be heard on
the point of order?
Mr. [Albert] Thomas [of Texas]: May I repeat, the committee is
trying to make these paragraphs on mass transportation work, not
cripple them, but make them work for loans and grants. There is no
limitation on who can get the money; the only limitation is in the
grant money. These are demonstration grants to be used to buy
equipment if you look at it carefully. Private utilities can do it
and public utilities. But, anyway, the committee went along with
it. It is back-door spending pure and unadulterated, and all we did
was to try to put back in the Congress control over the money.
If my friend insists on his point of order I will have to join
him and make a point of order against the entire paragraph.
The Chairman: The gentleman from Texas makes a point of order
against the entire paragraph on the ground that it is legislation
on an appropriation bill.
The Chair is ready to rule. The Chair sustains the point of
order.
Discharge of Commodity Credit Corporation Indebtedness
Sec. 35.7 Language in an appropriation bill authorizing the Secretary
of the Treasury to discharge indebtedness of the Commodity Credit
Corporation to the Secretary of the Treasury by canceling notes
issued by the corporation to the Secretary of the Treasury in a
specific amount under the International Wheat Agreement Act was
conceded to be legislation on an appropriation bill and held not in
order.
On May 17, 1951,(6) during consideration in the
Committee of the Whole of the Agriculture Department appropriation bill
(H.R. 3973), a point of order was raised against the following
provision:
---------------------------------------------------------------------------
6. 97 Cong. Rec. 5469, 82d Cong. 1st Sess.
---------------------------------------------------------------------------
international wheat agreement
The Secretary of the Treasury is hereby authorized and directed
to discharge indebtedness of the Commodity Credit Corporation to
the Secretary of the Treasury by canceling notes issued by the
Corporation to the Secretary of the Treasury in the amount of
$76,808,000 for the net costs during the fiscal year 1950 under the
Inter
[[Page 5829]]
national Wheat Agreement Act of 1949 (7 U.S.C. 1641-1642).
Mr. [Ed] Gossett [of Texas]: Mr. Chairman, a point of order.
The Chairman: (7) The gentleman will state it.
---------------------------------------------------------------------------
7. Aime J. Forand (R.I.).
---------------------------------------------------------------------------
Mr. Gossett: Mr. Chairman, I make a point of order against the
paragraph on page 50, lines 5 to 12, inclusive, International Wheat
Agreement, on the ground that that is a new authorization and a
direction to the Secretary of the Treasury to handle this item
contrary to the manner in which it has been handled, and therefore
constitutes legislation on an appropriation bill.
Mr. [Jamie L.] Whitten [of Mississippi]: Mr. Chairman, I
concede the point of order.
The Chairman: The point of order is sustained.
Forgiving Interest on Debt; Commodity Credit Corporation
Sec. 35.8 Language in an appropriation bill providing that funds
borrowed from the Treasury by the Commodity Credit Corporation
shall not bear interest to the extent that the CCC incurs
unreimbursed losses, was conceded to be legislation and ruled out
on a point of order.
On May 20, 1964,(8) during consideration in the
Committee of the Whole of the Department of Agriculture appropriation
bill (H.R. 11202), a point of order was raised against the following
provision:
---------------------------------------------------------------------------
8. 110 Cong. Rec. 11426, 88th Cong. 2d Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
Page 30, line 1:
``Commodity Credit Corporation
``Reimbursement for net Realized Losses
``To partially reimburse the Commodity Credit Corporation
for net realized losses sustained during the fiscal year ending
June 30, 1963, pursuant to the Act of August 17, 1961 (15
U.S.C. 713a-11, 713a-12), $1,724,000,000: Provided, That after
June 30, 1963, the portion of borrowings from Treasury equal to
the unreimbursed realized losses recorded on the books of the
Corporation after June 30 of the fiscal year in which such
losses are realized, shall not bear interest and interest shall
not be accrued or paid thereon.''
Mr. [Thomas M.] Pelly [of Washington]: Mr. Chairman, a point of
order.
The Chairman: (9) The gentleman will state it.
---------------------------------------------------------------------------
9. Eugene J. Keogh (N.Y.).
---------------------------------------------------------------------------
Mr. Pelly: Mr. Chairman, I make a point of order against the
language on page 30, line 7 through 11, on the ground that it is
legislation on an appropriation bill. . . .
Mr. [Jamie L.] Whitten [of Mississippi]: . . . The gentleman's
point of order is well taken and we acknowledge it, but I should
like to say for the record that what this amounts to is that this
cost will continue to pyramid
[[Page 5830]]
bookkeeping-wise and interest will be added to it, so that
Agriculture will be charged with more and more interest every year.
We think that should be corrected and we tried to do it in this
way. But we confess the validity of the point of order. . . .
Mr. Pelly: Mr. Chairman, I insist on my point of order. . . .
The Chairman: . . . The gentleman from Mississippi has conceded
the validity of the point of order.
Sec. 35.9 A provision in a general appropriation bill authorizing and
directing the Secretary of the Treasury to discharge indebtedness
of a government corporation in the amount of its capital impairment
on a certain date by canceling notes issued by such corporation to
the Treasury was conceded to be legislation on an appropriation
bill and held not in order.
On May 1, 1952,(10) during consideration in the
Committee of the Whole of the Department of Agriculture appropriation
bill (H.R. 7314), the following point of order was raised:
---------------------------------------------------------------------------
10. 98 Cong. Rec. 4741, 4742, 82d Cong. 2d Sess.
---------------------------------------------------------------------------
Mr. [Abraham J.] Multer [of New York]: Mr. Chairman, I offer a
further point of order addressed to the same title and to the
provision beginning in line 9 and running down to, and including
line 17.
There also we have legislation in an appropriation bill in that
it authorizes and directs the Secretary of the Treasury to
discharge an indebtedness of the Commodity Credit Corporation to
the extent of $120,000,000. That obviously can be done only by
legislation which properly should come before the Banking and
Currency Committee. If the Commodity Credit Corporation can make
out a case it will probably get the authorizing and proper
legislation. This is not the way to do it. This, in effect, changes
the authorization by increasing it to the extent of $120,000,000.
It is now $4,750,000,000, as fixed by law. This would, in effect,
increase that authorization by another $120,000,000.
The reference to the statute in the last two lines of the
section merely fixes the method of determining any impairment of
the capital of the Commodity Credit Corporation and does not
authorize a discharge of any indebtedness.
Mr. [Jamie L.] Whitten [of Mississippi]: Mr. Chairman, I will
have to admit the point of order.
The Chairman: (11) The gentleman concedes the point
of order and it is, therefore, sustained.
---------------------------------------------------------------------------
11. Aime J. Forand (R.I.).
---------------------------------------------------------------------------
Tennessee Valley Authority; Repayment of Interest
Sec. 35.10 In an appropriation bill a provision that hereafter the
Tennessee Valley Authority shall pay into the Treasury interest on
the amounts invested by the Authority in
[[Page 5831]]
power facilities and that no limit shall be placed by the Tennessee
Valley Authority on resale rates of power fixed by local
distributors was conceded and held to be legislation.
On Mar. 30, 1954,(12) during consideration in the
Committee of the Whole of the independent offices appropriation bill
(H.R. 8583), a point of order was raised against the following
provision:
---------------------------------------------------------------------------
12. 100 Cong. Rec. 4131, 83d Cong. 2d Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
Tennessee Valley Authority
For the purpose of carrying out the provisions of the
Tennessee Valley Authority Act of 1933, as amended (16 U.S.C.
ch. 12A), including purchase (not to exceed 1) and hire,
maintenance, and operation of aircraft, and purchase (not to
exceed 100 for replacement only) and hire of passenger motor
vehicles $103,582,000, to remain available until expended, and
to be available for the payment of obligations chargeable
against prior appropriations: . . . Provided further, That
hereafter the board of directors of the Tennessee Valley
Authority shall pay each year to miscellaneous receipts of the
Treasury from power revenues interest on the amounts invested
by the Authority in power-facility properties, including
construction in progress, from appropriations heretofore and
hereafter made to the Authority and on amounts equal to the
book value at the time of the transfer of power-facility
properties obtained from other Federal agencies without
reimbursement by the Authority, less amounts of capital
returned to the Treasury from such revenues. The rate of
interest shall be equal to the average rate of interest paid by
the Treasury of the United States, during the prior fiscal
year, on the public debt: Provided further, That no limitation
shall be placed by the Tennessee Valley Authority on resale
rates of power fixed by local distributors.
Mr. [George W.] Andrews [of Alabama]: Mr. Chairman, I make the
point of order against the language appearing on page 43, line 25,
after the colon, and all the language in the paragraph on page 44
on the ground that it proposes legislation in a general
appropriation bill.
Mr. [John] Phillips [of California]: Mr. Chairman, we concede
the point of order. . . .
The Chairman: (13) The Chair sustains the point of
order.
---------------------------------------------------------------------------
13. Louis E. Graham (Pa.).
---------------------------------------------------------------------------
Establishing Public Debt Transaction Financing Mechanism
Sec. 35.11 Language in an appropriation bill authorizing the Secretary
of the Treasury to use as a public-debt transaction the proceeds
from the sales of any securities issued under the Second Liberty
Bond Act was held to be legislation and not in order.
On Apr. 27, 1950,(14) during consideration in the
Committee of the
[[Page 5832]]
Whole of the Department of Agriculture appropriation bill (H.R. 7786),
the following point of order was raised:
---------------------------------------------------------------------------
14. 96 Cong. Rec. 5914, 81st Cong. 2d Sess.
---------------------------------------------------------------------------
Mr. [Kenneth B.] Keating [of New York]: Mr. Chairman, a further
point of order. On page 200, line 16, beginning with the words--
Provided further, That for the purpose of making loans
pursuant to the foregoing authority, the Secretary of the
Treasury is authorized to use as a public-debt transaction the
proceeds from the sale of any securities issued under the
Second Liberty Bond Act, as amended, and the purposes for which
securities may be issued under that act are extended to include
such loans to the Secretary: Provided further, That repayments
to the Secretary of the Treasury on such loans shall be treated
as a public-debt transaction.
I make the point of order that that language involves
legislation on an appropriation bill. However, I do this in order
to protect the record at this point and would be very glad to
reserve the point of order and ask for an explanation of what is
attempted to be accomplished by this proviso. My point is that it
may be something highly desirable to which I would not want to make
a point of order. Off hand it looks to me clearly like legislation
on an appropriation bill, but perhaps it may be desirable
legislation.
The Chairman: (15) Does the gentleman from
Mississippi desire to be heard on the point of order?
---------------------------------------------------------------------------
15. Jere Cooper (Tenn.).
---------------------------------------------------------------------------
Mr. [Jamie L.] Whitten [of Mississippi]: This language was
included to facilitate the handling of the program which is set out
above in the bill. It is merely technical, as is apparent, and is
just in order to facilitate the handling of the matter by the
Treasury Department and, as I understand, was originally included
at the insistence of the Treasury Department to so facilitate it. I
am not prepared to say whether it is or is not legislation on an
appropriation bill. I do say that it is economy to keep it in
rather than strike it out. . . .
The Chairman: The Chair is prepared to rule. . . .
The Chair would invite attention to the fact that the language
appearing in this proviso, ``the Secretary of the Treasury is
authorized to use as a public-debt transaction the proceeds from
the sale of any securities issued under the Second Liberty Bond
Act,'' and so forth, would appear to be clearly legislation on an
appropriation bill, in violation of the rules of the House.
The Chair sustains the point of order.
Authorizing Secretary of Treasury to Adjust Levels of Appropriations
Sec. 35.12 In a general appropriation bill a provision authorizing the
Secretary of the Treasury, with the approval of the Bureau of the
Budget, to make specified adjustments in appropriations made by the
paragraph to reflect the amount of certain tax receipts was held to
constitute legislation and such paragraph was ruled out.
[[Page 5833]]
On Apr. 18, 1951,(16) during consideration in the
Committee of the Whole of the Department of Labor and Federal Security
Agency appropriation bill (H.R. 3709), a point of order was raised
against the following provision:
---------------------------------------------------------------------------
16. 97 Cong. Rec. 4093, 82d Cong. 1st Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
Title V--Railroad Retirement Board
Payment to railroad retirement account: For an annual
premium to provide for the payment of all annuities, pensions,
and death benefits in accordance with the provisions of the
Railroad Retirement Acts of 1935 and 1937, as amended (45
U.S.C. 228-228s), and for expenses necessary for the Railroad
Retirement Board in the administration of said acts as may be
specifically authorized annually in appropriation acts, there
is hereby appropriated for crediting monthly to the railroad
retirement account for the fiscal year 1952, and for each
fiscal year thereafter, an amount equal to the amount covered
into the Treasury (minus refunds) during each such fiscal year
under the Railroad Retirement Tax Act (26 U.S.C. 1500-1538):
[Provided, That the appropriation made herein for the fiscal
year 1952 shall be adjusted by the Secretary of the Treasury,
with the approval of the Bureau of the Budget, in such manner
as may be necessary to insure that the railroad retirement
account shall be credited for an amount equal to the amounts
covered into the Treasury (minus refunds) prior to July 1,
1951, under said Railroad Retirement Tax Act, and under the
Carriers Taxing Act of 1937, as amended, less (1) amounts
credited as premiums to the railroad retirement account
(excluding $334,429,100 heretofore appropriated for military
service credits) and (2) amounts properly chargeable as
administrative expenses of the Railroad Retirement Board, prior
to July 1, 1951.]
Mr. [Daniel J.] Flood [of Pennsylvania]: Mr. Chairman, I make a
point of order against the language on page 36, the proviso
beginning after the colon on line 4 and going down to the period on
line 16. This is legislation on an appropriation bill. Obviously,
this goes beyond the scope of the bill and beyond the appropriation
provisions of the bill. It is similar in nature to the language to
which I made objection last year at the same time.
The Chairman: (17) Will the gentleman from
Pennsylvania define the specific language in the bill to which he
raises the point of order?
---------------------------------------------------------------------------
17. Charles M. Price (Ill.).
---------------------------------------------------------------------------
Mr. Flood: The point of order is to the legislative intent and
the legislative provision of the entire proviso.
As I read this, I construe (it) in effect as amounting to a
repealer of existing legislation. . . .
Mr. [Oren] Harris [of Arkansas]: Do I understand that the
gentleman makes a point of order only to the language on page 36
beginning at line 4, that is under the proviso?
Mr. Flood: That is correct.
The Chairman: And ending on line 16?
Mr. Flood: That is correct.
Mr. [Christopher C.] McGrath [of New York]: Mr. Chairman, I
concede the point of order.
Mr. Harris: Mr. Chairman, a further parliamentary inquiry.
[[Page 5834]]
The Chairman: The gentleman will state it.
Mr. Harris: Would not the point of order raised by the
gentleman go to the entire paragraph?
The Chairman: If the gentleman from Pennsylvania so made the
point of order. . . .
Mr. Harris: Mr. Chairman, I asked the gentleman from
Pennsylvania a moment ago if his point of order was to the proviso
only and I understand the gentleman to say that it was.
Mr. Flood: That was true. That was the point of order I made,
but I have no objection to making a subsequent point of order this
time to make a point of order against the entire paragraph.
Mr. [Charles A.] Wolverton [of New Jersey]: Mr. Chairman, so
that there may be no misunderstanding about the situation, I make a
point of order against the entire paragraph.
The Chairman: Does the gentleman from New York concede the
point of order to the entire paragraph?
Mr. Flood: Mr. Chairman, I make a point of order against the
entire paragraph, in view of the discussion which has just taken
place.
Mr. McGrath: Mr. Chairman, I concede the point of order. . . .
The Chairman: The point of order now takes in the entire
paragraph beginning on page 35 and ending at line 16, page 36. . .
.
And the gentleman from New York [Mr. McGrath] concedes the
point of order. The point of order is sustained.
CHAPTER 26
Unauthorized Appropriations; Legislation on Appropriation Bills
C. PROVISIONS AS ``CHANGING EXISTING LAW,'' GENERALLY
Sec. 36. Changing Prescribed Methods of Allocation or Distribution of
Funds; Mandating Expenditures
Generally, if a provision in an appropriation bill would require an
allocation or distribution of appropriated funds that is contrary to an
express legislative formula for apportionment of the funds, it is not
permitted. Thus, it is held that an amendment to a general
appropriation bill which mandates a distribution of funds therein in
contravention of an allocation formula in existing law and which
interferes with an executive official's discretionary authority under
that law is in violation of Rule XXI clause 2. (See Sec. 36.16, infra.)
On the other hand, amendments or provisions in bills have been
permitted which have been drafted simply as negative restrictions or
limitations on the use of funds. Such limitations may affect the
allocation of funds as contemplated in existing law, but do not
explicitly change a statutory formula for distribution.(18)
Exam
[[Page 5835]]
ples may be found in those sections of this chapter relating to
``permissible limitations on the use of funds.''
---------------------------------------------------------------------------
18. In one instance, where existing law authorized an appropriation of
$600,000,000 for the fiscal year and provided that of the
amount actually appropriated, allotments to the various states
should be computed by a formula, the factors of which were to
be state population, per capita income therein, the amount
appropriated and the amount authorized, a provision in the
appropriation bill H.R. 13111 (for the Departments of Labor and
Health, Education, and Welfare) specifying that none of the
funds used therein should be available for making allotments on
a basis in excess of $500,000,000, thus changing one of the
legislatively established figures in the authorized formula,
was nevertheless held in order as a limitation, the argument
not having been explicit on this crucial point. 115 Cong. Rec.
21471, 91st Cong. 1st Sess., July 30, 1969. (For an example of
a similar limitation based on a prior year's appropriation, see
118 Cong. Rec. 21104, 92d Cong. 2d Sess., June 15, 1972 [H.R.
15417].) But the ruling today would arguably be different, on
the basis that the provisions did in fact change one part of a
legislatively established formula. See also Sec. 77.2, infra,
in which an amendment to a paragraph of an appropriation bill
providing that no part of the funds therein contained shall be
distributed to states on a per capita income basis was held to
be a proper limitation restricting the use of funds and in
order.
---------------------------------------------------------------------------
Theoretically, if an authorizing statute provided that a particular
percentage of total funds would be allocated to each of several
specified areas, a purported limitation which eliminated funds for one
of those areas would constitute legislation in that it changed a
prescribed formula. This result, however, does not clearly emerge from
the precedents. -------------------
General Rule
Sec. 36.1 It is not in order in a general appropriation bill to direct
that certain funds therein shall be distributed without regard to
the provisions of the authorizing legislation.
On June 15, 1972,(19) during consideration in the
Committee of the Whole of a general appropriation bill (H.R. 15417), a
point of order was raised against the following amendment:
---------------------------------------------------------------------------
19. 118 Cong. Rec. 21131, 92d Cong. 2d Sess.
---------------------------------------------------------------------------
Mr. [Sidney R.] Yates [of Illinois]: Mr. Chairman, I offer an
amendment.
The Clerk read as follows:
Amendment offered by Mr. Yates: On page 22, line 4, change
the period to a semicolon and add the following: ``Provided
that the funds herein appropriated for bilingual education
under the Bilingual Education Act shall be distributed in
accordance with the authority contained in Section 703(b) of
said Act requiring that the Commissioner shall give highest
priority to states and areas within states having the greatest
need for programs under the Act, and that
[[Page 5836]]
such priority shall take into consideration the number of
children of limited English-speaking ability between the ages
of three (3) and eighteen (18) in each state; and provided
further that such distribution of funds shall be made [without
regard to the provisions of Section 704(a) of the Bilingual
Education Act that distribution be `from families (A) with
incomes below $3,000 per year, or (B) receiving payments under
a program of aid to families with dependent children under a
State plan approved under title IV of the Social Security Act',
and of Section 704(c) of the Bilingual Education Act that
distribution be `from families (A) with incomes below $3,000
per year, or (B) receiving payments under a program of aid to
families with dependent children under a State plan approved
under title IV of the Social Security Act.' '']
Mr. [Daniel J.] Flood [of Pennsylvania]: Mr. Chairman, I make a
point of order against the amendment.
The Chairman: (20) Does the gentleman desire to be
heard on the point of order?
---------------------------------------------------------------------------
20. Chet Holifield (Calif.).
---------------------------------------------------------------------------
Mr. Flood: Yes, Mr. Chairman, and very briefly.
Mr. Chairman, it is very clear and I read now from Cannon's
Procedures in the House of Representatives, page 46, which reads as
follows:
Any deviation however slight from the text of existing law.
It says that no deviation however slight. This is certainly
that, if you heard it as I did. I had a copy of the amendment and I
read it carefully in some detail.
Mr. Chairman, I could not make it any plainer if I wrote it
myself.
The Chairman: Does the gentleman from Illinois desire to be
heard on the point of order?
Mr. Yates: Yes, Mr. Chairman.
Mr. Chairman, I conceive of this amendment as being a
limitation on an appropriation bill in determining the manner in
which funds be spent. I, therefore, think it is in order.
The Chairman: The Chair is ready to rule. The amendment does
not restate existing law but changes existing law. Therefore, it
becomes legislation on an appropriation bill, and the Chair
sustains the point of order.
Mandating Spending Levels
Sec. 36.2 Language in an appropriation bill mandating a certain
allotment of funds appropriated therein was ruled out as
legislation on an appropriation bill.
On Mar. 29, 1960,(1) during consideration in the
Committee of the Whole of a general appropriation bill (H.R. 11390), a
point of order was raised against the following provision:
---------------------------------------------------------------------------
1. 106 Cong. Rec. 6862, 6863, 86th Cong. 2d Sess.
---------------------------------------------------------------------------
Defense Educational Activities
For grants, loans, and payments under the National Defense
Education Act of 1958 (72 Stat. 1580-1605), $171,000,000, of which
$44,000,000 shall be for capital contributions to student loan
funds and loans for non-Federal capital contributions to stu
[[Page 5837]]
dent loan funds, of which not to exceed $1,000,000 shall be for
such loans for non-Federal capital contributions; $57,750,000 shall
be for grants to States and loans to nonprofit private schools for
science, mathematics, or modern foreign language equipment and
minor remodeling of facilities and for grants to States for
supervisory and other services, [but allotments pursuant to section
302 or 305 of such Act for the current fiscal year shall be made on
the basis of the maximum amounts authorized to be appropriated
under section 301 of such Act;] $9,000,000 shall be for grants to
States for area vocational education programs; and $15,000,000
shall be for grants to States for testing, guidance, and
counselling: Provided further, That no part of this appropriation
shall be available for the purchase of science, mathematics, and
modern language teaching equipment, or equipment suitable for use
for teaching in such fields of education, which can be identified
as originating in or having been exported from a Communist country,
unless such equipment is unavailable from any other source. . . .
Mr. [H. R.] Gross [of Iowa]: Mr. Chairman, a point of order.
The Chairman: (2) The gentleman will state it.
---------------------------------------------------------------------------
2. Eugene J. Keogh (N.Y.).
---------------------------------------------------------------------------
Mr. Gross: Mr. Chairman, I make a point of order against the
language on page 17, line 19, which reads as follows:
But allotments pursuant to section 302 or 305 of such act
for the current fiscal year shall be made on the basis of the
maximum amounts authorized to be appropriated under section 301
of such act.
I make the point of order that this language constitutes
legislation on an appropriation bill.
The Chairman: Does the gentleman from Rhode Island care to be
heard on the point of order?
Mr. [John E.] Fogarty [of Rhode Island]: Mr. Chairman, I am in
no other position than to concede that it is legislation on an
appropriation bill; but it will change the basic effect of the act,
throw it out of control. However, if the gentleman insists on his
point of order, there is nothing else I can do.
Mr. Gross: I insist on the point of order, Mr. Chairman.
The Chairman: The gentleman from Iowa insists on his point of
order.
The point of order is sustained.
Requiring a Certain Apportionment of Funds
Sec. 36.3 To a general appropriation bill including funds for
educational programs authorized by law, an amendment denying the
use of such funds until the Commissioner of Education makes an
apportionment thereof contrary to the formula prescribed by
existing law was held to impose additional duties on the
Commissioner and to change existing law and was thus ruled out as
legislation.
On June 26, 1968,(3) during consideration in the
Committee of the
[[Page 5838]]
Whole of the Departments of Labor and Health, Education, and Welfare
appropriation bill (H.R. 18037), a point of order was raised against
the following provision:
---------------------------------------------------------------------------
3. 114 Cong. Rec. 18894, 18895, 90th Cong. 2d Sess.
---------------------------------------------------------------------------
Mr. [Albert H.] Quie [of Minnesota]: Mr. Chairman, I offer an
amendment.
The Clerk read as follows:
Amendment offered by Mr. Quie: On page 13, line 24, strike
the word ``Provided'' and all the language that follows through
the word ``grants'' on page 14, line 3, and insert in lieu
thereof the following: [``Provided, That no part of this
appropriation shall be made available to any local educational
agency in any State from funds appropriated to carry out such
title II for the fiscal year 1969 until there has been made
available from this appropriation to each local educational
agency in the State in whose schools the number of children
counted under section 103(a)2 of such title II exceeds 25 per
centum of the total enrollment in such schools an amount at
least equal to the amount made available to it for the fiscal
year 1968 from funds appropriated to carry out such title:]
Provided further, That the Commissioner shall make no part of
this appropriation available to any local educational agency
which fails to give priority in carrying out programs under
such title II to schools serving school attendance areas of
greatest need:''.
Mr. [Daniel J.] Flood [of Pennsylvania]: Mr. Chairman, I
reserve a point of order against the amendment. I propose to make a
point of order that this is legislation on an appropriation bill.
The Chairman: (4) The gentleman reserves a point of
order. . . .
---------------------------------------------------------------------------
4. Chet Holifield (Calif.).
---------------------------------------------------------------------------
Mr. Flood: Mr. Chairman, I must insist upon my point of order.
This amendment obviously and clearly changes the entire system of
allocations. It attempts to create a formula. If ever I have seen
legislation on an appropriation bill, this is it.
Mr. Chairman, I insist upon my point of order.
The Chairman: Does the gentleman from Minnesota desire to be
heard on the point of order?
Mr. Quie: Yes, Mr. Chairman.
My amendment is a limitation on the payment of $1,064,000,000.
It is a similar limitation to that placed on the expenditure in
other parts of the bill; for instance, pages 13 and 14, as the
provisos. Also, as to the impact aid, we see some of the same kinds
of limitations, where there could be no reduction for category A
students but the reduction all would have to be for category B
students.
My amendment is written in the same way, as a limitation on
payments under this bill.
The Chairman: The Chair is ready to rule.
The Chair has had an opportunity to read the amendment and has
listened to the arguments for the point of order and against the
point of order.
The amendment offered by the gentleman from Minnesota [Mr.
Quie] provides that:
No funds may be made available from this appropriation
until there has been made available from this appropriation (to
certain local edu
[[Page 5839]]
cational agencies) an amount at least equal to the amount made
available to it in fiscal 1968.
The Chair has examined the amendment, the bill, and the
provisions of title II of the act of September 30, 1950, as
amended. The effect of the amendment is to prohibit the
Commissioner of Education from making any payments to any State
from this appropriation until there is an amount made available to
local educational agencies in certain States at least equal to that
provided last year.
The Chair feels that to make an appropriation contingent upon
certain actions to be taken by the Commissioner which impose
additional duties that are contrary to the apportionment formula in
existing law constitutes legislation on an appropriation bill, in
violation of rule XXI, clause 2.
The Chair therefore sustains the point of order.
Permitting Reapportionment of Unused Funds
Sec. 36.4 In an appropriation bill providing funds for the Office of
Education, language ``[t]hat the amount of allotment which States
and Territories are not prepared to use may be reapportioned among
other States and Territories applying therefor for use in the
programs for which the funds were originally apportioned'', was
conceded and held to be legislation and not in order.
On Mar. 29, 1957,(5) during consideration in the
Committee of the Whole of the Departments of Labor and Health,
Education, and Welfare appropriation bill (H.R. 6287), a point of order
was raised against the following provision:
---------------------------------------------------------------------------
5. 103 Cong. Rec. 4805, 85th Cong. 1st Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
office of education
Promotion and further development of vocational education:
For carrying out the provisions of section 3 of the Vocational
Education Act of 1946, as amended (20 U.S.C., ch. 2), and
section 202 of said act (70 Stat. 925), section 4 of the act of
March 10, 1924 (20 U.S.C. 29), section 1 of the act of March 3,
1931 (20 U.S.C. 30), the act of March 18, 1950 (20 U.S.C. 31),
including $4 million for extension and improvement of practical
nurse training, $33,442,081: Provided, That the apportionment
to the States under section 3 (a), (1), (2), (3), and (4) of
the Vocational Education Act of 1946 shall be computed on the
basis of not to exceed $29,267,081 for the current fiscal year:
[Provided further, That the amount of allotment which States
and Territories are not prepared to use may be reapportioned
among other States and Territories applying therefor for use in
the programs for which the funds were originally apportioned.]
Mr. [Edgar W.] Hiestand [of California]: Mr. Chairman, a point
of order.
The Chairman: (6) The gentleman will state it.
---------------------------------------------------------------------------
6. Aime J. Forand (R.I.).
---------------------------------------------------------------------------
Mr. Hiestand: I wish to raise the point of order against the
proviso on
[[Page 5840]]
line 14, page 17, on the ground that it is legislation on an
appropriation bill. Coming as it does, it would make a change, you
might say, in the formula that has been adopted in the basic act;
the formula for the distribution of funds.
The Chairman: Does the gentleman from Rhode Island desire to be
heard on the point of order?
Mr. [John E.] Fogarty [of Rhode Island]: Mr. Chairman, I have
no other recourse but to agree that it is subject to a point of
order. But, when you do strike this out, you are going to penalize
those States who have the best programs for vocational training.
The Chairman: The gentleman concedes the point of order, and
the Chair sustains the point of order.
Exemption From Mandatory Funding Levels
Sec. 36.5 A provision in a general appropriation bill requiring that
the mandatory funding levels prescribed by existing law shall not
be effective during the current fiscal year was conceded to change
existing law and was ruled out as in violation of Rule XXI clause
2.
On July 23, 1970,(7) during consideration in the
Committee of the Whole of the Departments of Labor and Health,
Education, and Welfare appropriation bill (H.R. 18515), the following
point of order was raised:
---------------------------------------------------------------------------
7. 116 Cong. Rec. 25634, 91st Cong. 2d Sess.
---------------------------------------------------------------------------
Office of Economic Opportunity
economic opportunity program
For expenses necessary to carry out the provisions of the
Economic Opportunity Act of 1964 (Public Law 88-452, approved
August 20, 1964), as amended, $2,046,200,000 . . . . Provided
further, [That those provisions of the Economic Opportunity
Amendments of 1967 and 1969 that set mandatory funding levels shall
not be effective during the fiscal year ending June 30, 1971.]
Mr. [Carl D.] Perkins [of Kentucky]: Mr. Chairman, I make a
point of order against the language beginning on page 38, line 25,
and on page 39 through line 3. The language reads:
Provided further, That those provisions of the Economic
Opportunity Amendments of 1967 and 1969 that set mandatory
funding levels shall not be effective during the fiscal year
ending June 30, 1971.
Mr. Chairman, this is legislation in an appropriation bill and
sets aside all the earmarking that we provided for in the Economic
Opportunity Authorization Act.
The Chairman: (8) Does the gentleman from
Pennsylvania desire to be heard on the point of order?
---------------------------------------------------------------------------
8. Chet Holifield (Calif.).
---------------------------------------------------------------------------
Mr. [Daniel J.] Flood [of Pennsylvania]: Mr. Chairman, we
concede the point of order.
The Chairman: The point of order is conceded and the Chair
therefore sustains the point of order.
[[Page 5841]]
Requiring Priorities in Allocating Funds
Sec. 36.6 To a paragraph in a general appropriation bill making an
appropriation for grants to states for hospital construction, an
amendment providing that funds for new obligations must be allotted
on a basis of priority to projects most advanced as determined by
the several states was ruled out as constituting legislation.
On Apr. 18, 1951,(9) during consideration in the
Committee of the Whole of the Department of Labor and Federal Security
Agency appropriation bill (H.R. 3709), the following transpired:
---------------------------------------------------------------------------
9. 97 Cong. Rec. 4078, 4081, 4082, 82d Cong. 1st Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
Grants for hospital construction: For payments for hospital
construction under part C, title VI, of the act, as amended, to
remain available until expended, $175,000,000, of which
$100,000,000 is for payment of obligations incurred under
authority heretofore granted under this head: Provided, That
allotments under such part C to the several States for the
current fiscal year shall be made on the basis of an amount
equal to that part of the appropriation granted herein which is
available for new obligations.
Mr. [Foster] Furcolo [of Massachusetts]: Mr. Chairman, I offer
an amendment.
The Clerk read as follows:
Amendment offered by Mr. Furcolo: Page 21, line 13, strike
out ``$175,000,000'' and insert in its place the figure
``$250,000,000.''
Mr. Furcolo: Mr. Chairman, the amendment I offer is on page 21,
line 13, where there will be a substitution of the figure
$175,000,000 to make it read $250,000,000. . . .
Mr. H. Carl Andersen [of Minnesota]: Mr. Chairman, I offer a
substitute.
The Clerk read as follows:
Amendment offered by Mr. H. Carl Andersen as a substitute
for the amendment offered by Mr. Furcolo: Page 21, line 19,
after ``obligations'' strike out the period and insert
``Provided, That the funds provided for new obligations shall
be allotted on a basis of priority to those projects most
advanced in the planning and financing as determined by the
several States.''
Mr. [Christopher C.] McGrath [of New York]: Mr. Chairman, I
make the point of order against the substitute that it is
legislation on an appropriation bill. . . .
Mr. H. Carl Andersen: The Chair will notice in line 16 the
provision ``That allotments under such part C to the several
States'' and so forth and so on. If that provision is germane and
in order, as it appears to be why should not a further provision as
to how the State shall allot the money, based upon the degree of
advancement, be germane? The gentleman from Arkansas should either
make a point of order against that provision also or withdraw his
opposition to mine.
The Chairman: (10) The Chair is ready to rule.
---------------------------------------------------------------------------
10. Charles M. Price (Ill.).
---------------------------------------------------------------------------
[[Page 5842]]
After studying the substitute amendment offered by the
gentleman from Minnesota, the Chair feels that this is a change in
existing law, and therefore sustains the point of order that it is
legislation on an appropriation bill.
In regard to the second point raised by the gentleman, the
Chair holds that because other legislative language may be
permitted to remain in the bill, that does not make in order
language adding legislation in violation of the rules.
The Chair, therefore, sustains the point of order submitted by
the gentleman from New York.
Changing Allotment in Authorization by Line-item Appropriations
Sec. 36.7 To a supplemental appropriation bill containing funds for
hospitals under the Hill-Burton Act, an amendment making funds
available for 35 specific hospitals, itemized individually and by
states, was held to change the apportionment formula for hospital
construction funds in the basic act and to constitute legislation
on an appropriation bill in violation of Rule XXI clause 2.
On May 7, 1970,(11) during consideration in the
Committee of the Whole of a supplemental appropriation bill (H.R.
17399), a point of order was raised against the following amendment:
---------------------------------------------------------------------------
11. 116 Cong. Rec. 14566, 91st Cong. 2d Sess.
---------------------------------------------------------------------------
Mr. [Henry C.] Schadeberg [of Wisconsin]: Mr. Chairman, I offer
an amendment.
The Clerk read as follows:
Amendment offered by Mr. Schadeberg: On page 11, between
lines 2 and 3, insert the following:
``Health Services and Mental Health Administration Hospital
Construction
``For an additional amount for `Hospital Construction',
$8,703,078, for thirty-five hospitals in Kansas, Nebraska,
Oklahoma, Arkansas, New Hampshire, Maryland, North Carolina,
Wisconsin, and Indiana under title III of the Public Health
Service Act as follows:
``The State of Kansas, $1,130,245:
``(1) the Saint Francis Hospital in Topeka, $288,496.
``(2) the Saint John's Hospital in Salina, $68,328.
``(3) the Mount Carmel Hospital in Pittsburg, $273,312. . .
.
``The State of Indiana, $250,443:
``(1) the Saint Mary Mercy Hospital in Gary and the Union
Hospital in Terre Haute.''
Mr. [Daniel J.] Flood [of Pennsylvania]: Mr. Chairman, I make a
point of order against the amendment on the ground that there is no
authorization in law for the appropriations earmarked for these
specific hospitals.
The Chairman: (12) Does the gentleman from Wisconsin
wish to be heard on the point of order?
---------------------------------------------------------------------------
12. James G. O'Hara (Mich.).
---------------------------------------------------------------------------
Mr. Schadeberg: Only, Mr. Chairman, to suggest that the
hospitals that are mentioned have had priority under
[[Page 5843]]
the Hill-Burton Act and are under construction.
The Chairman: The gentleman from Wisconsin, as the Chair
understands it, takes the position that these funds are authorized
by the Hill-Burton Act. Is that correct?
Mr. Schadeberg: They have had construction started under the
Hill-Burton Act, yes.
The Chairman: Does the gentleman from Pennsylvania desire to
respond to that?
Mr. Flood: Yes, of course, Mr. Chairman. The Hill-Burton
Hospital Construction Act authorizes appropriations only to States
and to territories under a very, very specific mathematical
formula. There is nothing in that law at any place which authorizes
appropriations for individual hospitals. As a matter of fact, the
law provides that eligibility for individual hospitals shall be
determined only by the States. There is no authorization either for
appropriations to specific hospitals or for the U.S. Public Health
Service to designate by hospital where appropriated funds are to be
used.
The Chairman: The Chair is prepared to rule on the point of
order. The Chair holds that the provisions of title VI of the
Public Health Service Act are as described by the gentleman from
Pennsylvania. The authorizing legislation provides for
appropriations on an allotment formula to the States and does not
authorize appropriations in any way for the construction of
individual hospitals or permit the selection of individual
hospitals for appropriation. The Chair, therefore, is constrained
to sustain the point of order on the ground that the proposed
amendment constitutes legislation on an appropriation bill.
State Educational Aid--``Hold Harmless'' Provision
Sec. 36.8 Language in a general appropriation bill providing that the
amounts to be paid to state educational agencies for certain
elementary and secondary school aid during fiscal 1971 shall not be
more than amounts made available for those purposes during the
preceding fiscal year, and providing that amounts for other
categories of such aid in fiscal 1971 shall not be less than
amounts available for that purpose in the preceding fiscal year,
was held to change the ratable reduction formula in existing law
and to impose new duties on an executive official, and was ruled
out on a point of order.
On Apr. 7, 1971,(13) during consideration in the
Committee of the Whole of the Department of Education appropriation
bill (H.R. 7016), a point of order was raised against the following
provision:
---------------------------------------------------------------------------
13. 117 Cong. Rec. 10061, 92d Cong. 1st Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
[[Page 5844]]
Title I--office of education
elementary and secondary education
For carrying out, to the extent not otherwise provided,
title I ($1,500,000,000), title II ($85,000,000), title III
($143,393,000), title V-A ($33,000,000), title VII, and section
807 of the Elementary and Secondary Education Act, section 402
of the General Education Provisions Act, and title III-A of the
National Defense Education Act of 1958 ($20,000,000),
$1,822,218,000: Provided, That (1) the amounts made available
to State agencies for the purposes of section 103(a) (5), (6),
and (7) of title I-A of the Elementary and Secondary Education
Act and to the States for the purposes of title I-B shall not
be more than the amounts made available in fiscal year 1971 for
these purposes and (2) the aggregate amounts made available to
each State under title I-A for grants to local educational
agencies within that State shall not be less than such amounts
as were made available for that purpose in fiscal year 1971.
Mr. [James G.] O'Hara [of Michigan]: Mr. Chairman, I make a
point of order to the language of the provisos in the paragraph
just read, beginning at line 9 on page 2, and running through line
18 on page 2.
The Chairman: (14) The gentleman will state his
point of order.
---------------------------------------------------------------------------
14. Chet Holifield (Calif.).
---------------------------------------------------------------------------
Mr. O'Hara: Mr. Chairman, my point of order is that the
language in the provisos constitutes legislation on an
appropriation bill. It provides for adjustments different than
those provided in the authorizing legislation, to wit: Section 144
of the Elementary and Secondary Education Act, and that, in
addition, the provisos require the exercise of judgmental and
discretionary functions on the part of the administrator; imposing
those conditions upon him.
For those reasons, Mr. Chairman, I make a point of order
against the language of the provisos.
The Chairman: Does the gentleman from Pennsylvania desire to be
heard on the point of order?
Mr. [Daniel J.] Flood [of Pennsylvania]: I do, Mr. Chairman.
Mr. Chairman, this is the classical problem that arises in this
bill since we first brought it here a few years ago. It is purely
and simply a limitation, and no more and no less. We have heard the
point of order before.
I suggest that the point of order not be sustained.
The Chairman: The Chair is ready to rule.
The Chair has listened with care to the presentations of the
gentleman from Michigan and the chairman of the subcommittee. The
Chair has also examined the provisions of title I of the Elementary
and Secondary Education Act.
It seems to the Chair that the argument is essentially this:
certain appropriations are authorized for programs under title I of
the act. The Committee on Appropriations has reduced this amount
and has appropriated $1.5 billion. There are within title I of the
act certain legislative directions to the Commissioner of Education
about how entitlements for the various State educational agencies
are to be computed. These are rather complicated and the Chair does
not think it necessary to ex
[[Page 5845]]
plain them in detail. But the Chair does wish to refer to the
explicit language of section 144 of the act, and will paraphrase a
portion of that section:
If the sums appropriated for any fiscal year for making the
payments provided in this title are not sufficient to pay in
full the total amounts which all local and State education
agencies are eligible to receive--
And that is the case now before this Committee.
the amount available for each grant to a state agency under
paragraphs (5), (6) or (7) of section 103(a) shall be equal to
the maximum grant as computed under such paragraph . . .
The section then provides for certain ratable reductions for
other programs under that title.
The Chair has also examined certain precedents relating to the
doctrine of limitations on appropriation bills. It is clear from
those precedents that while it is proper in an appropriation bill
to deny an appropriation or refuse to appropriate for a specific
object or program which may be authorized by law, it is not in
order, under the guise of a limitation, to impose new duties on an
executive officer, to curtail the discretion given that officer
under law or to change the law.
The Chair feels that the provision in the bill to which the
point of order is directed conflicts with these well-established
doctrines. The Chair therefore sustains the point of order.
Sec. 36.9 Language in a general appropriation bill providing that
grants to be paid to states for certain elementary and secondary
school aid during fiscal 1973 shall not be less than amounts
available for that purpose in the preceding fiscal year was
conceded to change the ratable reduction formula in existing law
and to impose new duties on executive officials (to determine new
minimum amounts) and was ruled out on a point of order.
On June 15, 1972,(15) during consideration in the
Committee of the Whole of the Departments of Labor and Health,
Education, and Welfare appropriation bill (H.R. 15417), a point of
order was raised against the following provision:
---------------------------------------------------------------------------
15. 118 Cong. Rec. 21104, 92d Cong. 2d Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
office of education
elementary and secondary education
For carrying out, to the extent not otherwise provided,
title I ($1,597,-500,000), title III ($146,393,000), and title
V, Parts A and C ($43,000,000), of the Elementary and Secondary
Education Act, $1,786,893,000: Provided, That grants to States
on behalf of local education agencies under said title I-A
shall not be less than grants made to such agencies in the
fiscal year 1972.
The Chairman: (16) For what purpose does the
gentleman from Michigan (Mr. O'Hara) rise?
---------------------------------------------------------------------------
16. Chet Holifield (Calif.).
---------------------------------------------------------------------------
[[Page 5846]]
Mr. [James G.] O'Hara: Mr. Chairman, I make a point of order to
the proviso beginning on line 10, page 19, and extending through
line 13, page 19.
The Chairman: That is as to the language beginning on line 10,
with the word ``Provided,''?
Mr. O'Hara: That is right, Mr. Chairman, and continuing on
through line 13 on page 19.
Mr. Chairman, may I be heard on the point of order?
The Chairman: The gentleman is recognized.
Mr. O'Hara: Mr. Chairman, I make the point of order that the
proviso constitutes legislation on an appropriation bill and,
therefore, ought to be stricken.
I call the attention of the Chair to the ruling made by the
Chair on a very similar point which is found in the Congressional
Record, vol. 116, part 3, page 4019.
The Chairman: Does the gentleman from Pennsylvania (Mr. Flood)
desire to be heard on the point of order?
Mr. [Daniel J.] Flood: Mr. Chairman, the same point of order
was raised last year, and we concede the point of order.
The Chairman: The gentleman from Pennsylvania concedes the
point of order.
The point of order is sustained.
Local Education Aid; Changing Allotment Formula
Sec. 36.10 A provision in a general appropriation bill which changes
the legislative formula governing allotment of certain funds to
local educational agencies in federally affected areas was conceded
and held to be legislation on an appropriation bill in violation of
Rule XXI clause 2.
On Feb. 19, 1970,(17) during consideration in the
Committee of the Whole of the Departments of Labor and Health,
Education, and Welfare appropriation bill (H.R. 15431), a point of
order was raised against the following provision:
---------------------------------------------------------------------------
17. 116 Cong. Rec. 4015, 91st Cong. 2d Sess. Compare Sec. 73.1, infra.
---------------------------------------------------------------------------
The Clerk read as follows:
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 September 23,
1950, as amended (20 U.S.C., ch. 19), $440,167,000 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 $15,167,000 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
[[Page 5847]]
under section 6 of said title: Provided further, That the
amount to be paid to an agency pursuant to said title (except
section 7) for the current fiscal year shall not be less, by
more than 5 per centum of the current expenditures for free
public education made by such agency for the fiscal year 1969,
than the amount of its entitlement under said title (except
section 7) for the fiscal year 1969.
Mr. [James G.] O'Hara [of Michigan]: Mr. Chairman, I rise for
the purpose of making a point of order against the second proviso
of the paragraph in question, beginning on line 18 and down through
line 24, on the ground that it is not a valid limitation, a
definitive direction. It is legislation on an appropriation bill
and, therefore, forbidden.
The Chairman: (18) Does the gentleman from
Pennsylvania care to be heard on the point of order?
---------------------------------------------------------------------------
18. Chet Holifield (Calif.).
---------------------------------------------------------------------------
Mr. [Daniel J.] Flood [of Pennsylvania]: Mr. Chairman, this is
legislation on an appropriation bill, and I most reluctantly
concede.
The Chairman: The Chair is prepared to rule. The point of order
is sustained.
Changing Computation Formula in Law
Sec. 36.11 To separate paragraphs in a general appropriation bill, both
making appropriations for payments to local educational agencies,
similar amendments providing bases for computation of the
recipients' contributions and for computation of the federal
payments different from the criteria specified by the law
authorizing such payments were conceded and held to constitute
legislation in violation of the rules.
On Apr. 18,(19) during consideration in the Committee of
the Whole of the Department of Labor and Federal Security Agency
appropriation bill (H.R. 3709), a point of order was raised against the
following amendments:
---------------------------------------------------------------------------
19. 97 Cong. Rec. 4074, 82d Cong. 1st Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
Payments to school district: For payments to local
educational agencies for the maintenance and operation of
schools as authorized by the act of September 30, 1950 (Public
Law 874), $28,000,000.
Mr. [William F.] Norrell [of Arkansas]: Mr. Chairman, I offer
an amendment.
The Clerk read as follows:
Amendment offered by Mr. Norrell: On page 15, line 9,
strike out the period, insert a colon in lieu thereof and the
following: ``Provided, That, for the purposes of this
appropriation, (1) the local contribution rate computed for any
local educational agency under section 3 of such act of
September 30, 1950, shall be not less than 80 percent and not
more than 120 percent of the national average local
contribution rate during the fiscal year ending June 30, 1950,
and (2) the current expenditures per child determined for any
such agency under section 4 of such
[[Page 5848]]
act of September 30, 1950, shall be not less than 80 percent
and not more that 120 percent of the national average current
expenditures per child for the purpose of providing free public
education during the fiscal year ending June 30, 1950.''
Mr. [John E.] Fogarty [of Rhode Island]: Mr. Chairman, I make a
point of order against the amendment on the ground that it is
legislation on an appropriation bill. . . .
Mr. Norrell: Mr. Chairman, I ask unanimous consent that my
other amendment on page 16, line 3, may be considered at this time,
for I am sure the gentleman from Rhode Island will make a point of
order against it also on the same grounds. I make this request in
order that my remarks may be directed to both amendments at the
same time.
The Chairman: (20) Is there objection to the request
of the gentleman from Arkansas?
---------------------------------------------------------------------------
20. Charles M. Price (Ill.).
---------------------------------------------------------------------------
There was no objection.
The Chairmam: The Clerk will report the second amendment
offered by the gentleman from Arkansas.
The Clerk read as follows:
Amendment offered by Mr. Norrell: On page 16, line 3,
strike out the period, insert in lieu thereof a colon and the
following: ``And provided further, That in the case of any
application by a local educational agency approved after July
1, 1951, for payment under section 202 of such act, the amount
made available by the Commissioner of Education out of this
appropriation shall not exceed $500 times the number of
children with respect to whom such agency is entitled to
receive payment under such section 202.''
Mr. Fogarty: Mr. Chairman, I make a point of order against this
amendment also, on the ground that it is legislation on an
appropriation bill; and I reserve both points of order, Mr.
Chairman. . . .
Mr. Norrell: Mr. Chairman, I am not going to consume the entire
5 minutes.
Mr. Chairman, I have consulted with the House Parliamentarian
with regard to both these amendments. They deal with the law that
we enacted last year regarding the school-aid program in defense
areas both as to construction and maintenance.
I admit that my amendments, if adopted, would change the basic
law of the land regarding these matters and, therefore, they are
subject to points of order; this is legislation on an appropriation
bill. But the facts are that since the enactment of this law last
year certain weaknesses have arisen which should have the attention
of this Congress. . . .
The Chairman: The Chair sustains the point of order against
both amendments.
Impacted Aid; No Funds Until Apportionment Made in Certain Manner
Sec. Sec. 36.12 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
[[Page 5849]]
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,(1) 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:
---------------------------------------------------------------------------
1. 16 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 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: (2) The Chair will hear the gentleman
on the point of order.
---------------------------------------------------------------------------
2. 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
[[Page 5850]]
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 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 propriated
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.
Rural Electrification Grants; Changing Loan Program to Grant
Sec. 36.13 To a general appropriation bill making appropriations for
rural electrification loans, an amendment earmarking a portion of
the
[[Page 5851]]
funds for nonrepayable grants to REA borrowers in Alaska was
conceded to be authorized by law and was ruled out as legislation.
On May 20, 1964,(3) during consideration in the
Committee of the Whole of the Department of Agriculture appropriation
bill (H.R. 11202), a point of order was raised against the following
amendment:
---------------------------------------------------------------------------
3. 110 Cong. Rec. 11424-26, 88th Cong. 2d Sess.
---------------------------------------------------------------------------
Mr. [Robert H.] Michel [of Illinois]: Mr. Chairman, I offer an
amendment.
The Clerk read as follows:
Amendment offered by Mr. Michel: Page 26, line 22, after
the word ``program'', insert the following: ``Provided, That
not more than $5,300,000 of the foregoing amounts shall be made
available to the borrowers of the Rural Electrification
Administration in Alaska for the repair, rehabilitation or
reconstruction of all their facilities and properties damaged,
destroyed, or dislocated as a result of the earthquakes of
March 1964, and provided further that any amounts so made
available and used shall not be repayable by the borrowers.''
Mr. [Jamie L.] Whitten [of Mississippi]: Mr. Chairman, I
reserve a point of order. . . .
The Chairman: (4) The gentleman will state his point
of order.
---------------------------------------------------------------------------
4. Eugene J. Keogh (N.Y.).
---------------------------------------------------------------------------
Mr. Whitten: Mr. Chairman, I make the point of order that this
is legislation on an appropriation bill. There is no authority in
law for making this direct grant from the REA program. May I point
out under the basic law the committee is limited to fixing a
ceiling upon what the REA may do under the basic act setting up
their authorities, obligations, and duties. This would in effect be
a direct grant from the REA which borrows from the Treasury, and
quite clearly, in my mind, it would be legislation. . . .
The Chairman: Does the gentleman from Illinois desire to be
heard on the point of order?
Mr. Michel: Mr. Chairman, I realize as a member of the
committee that we cannot legislate on an appropriation bill and
that it is subject to a point of order. If the chairman persists in
it, naturally, I would have to give way.
The Chairman: In view of the statement of the gentleman from
Illinois, the point of order is sustained.
Higher Education Funds: Funding For Program Not Authorized Unless
Others Funded First
Sec. 36.14 Where existing law authorizing programs of higher education
assistance provided that no payments for any fiscal year shall be
made for a certain category (4) unless funds have been appropriated
for three other student programs for that fiscal year, language in
a general appropriation bill containing funds for category (4)
which
[[Page 5852]]
would remain available during a subsequent fiscal year for which no
funds for categories (1)-(3) were provided was conceded to change
the priority formula in the authorizing legislation and was ruled
out in violation of Rule XXI clause 2.
On June 27, 1974,(5) during consideration in the
Committee of the Whole of the Departments of Labor and Health,
Education, and Welfare appropriation bill (H.R. 15580), a point of
order was raised and sustained as indicated above:
---------------------------------------------------------------------------
5. 120 Cong. Rec. 21670, 21671, 93d Cong. 2d Sess.
---------------------------------------------------------------------------
For carrying out, to the extent not otherwise provided, titles
I, III, IV, section 745 of title VII, and parts A, B, C, and D of
title IX, and section 1203 of the Higher Education Act . . .
section 421 of the General Education Provisions Act, and Public Law
92-506 of October 19, 1972, $2,145,271,000 . . . of which
$638,500,000 shall remain available through June 30, 1977,
$315,000,000 for subsidies on guaranteed student loans shall remain
available until expended: . . .
Mrs. [Edith] Green of Oregon: Mr. Chairman, I make a point of
order on the language found on page 18, line 4, beginning with the
words ``of which'' through line 5 through ``1977,''.
So the language I would make a point of order against, Mr.
Chairman, would read: ``of which $638,500,000 shall remain
available through June 30, 1977,''. My point of order, Mr.
Chairman, is that this appropriates funds for the basic opportunity
grants through June 30, 1977. The law requires, and I cite, Mr.
Chairman, in the Education Amendments Acts of 1972 this language.
No payments may be made on the basis of entitlements--
Which is the basic opportunity grants--
established under this subpart during any fiscal year unless--
And then the language continues--
funds have been appropriated for economic opportunity grants,
work study, and National Defense Education Act.
This language was very carefully drawn to protect those three
student aid programs. The language which we find in the bill in
effect provides payments for the entitlements for a year, the year
ending June 30, 1977, the school year 1976-77, a year in which no
funds are appropriated for the three other student financial aid
programs which are required under the law.
Mr. [Daniel J.] Flood [of Pennsylvania]: Mr. Chairman, we will
concede that point of order.
The Chairman: (6) The point of order is sustained.
---------------------------------------------------------------------------
6. James C. Wright, Jr. (Tex.).
---------------------------------------------------------------------------
Economic Development; Mandating Obligation of Funds for Unauthorized
Program
Sec. 36.15 An amendment to a general appropriation bill
[[Page 5853]]
providing that not less than a specific sum shall be used for a
particular purpose was held to violate Rule XXI clause 2, where its
proponent could not show that existing law mandated such an
expenditure.
On June 18, 1976,(7) H.R. 14239 (Departments of State,
Justice, Commerce, and the Judiciary appropriation bill for fiscal
1977), was under consideration, which provided in part:
---------------------------------------------------------------------------
7. 122 Cong. Rec. 19297, 94th Cong. 2d Sess.
---------------------------------------------------------------------------
For economic development assistance as authorized by titles I,
II, III, IV, and IX of the Public Works and Economic Development
Act of 1965, as amended, and title II of the Trade Act of 1974,
$300,000,000.
An amendment was offered, as follows:
Mr. [Philip E.] Ruppe [of Michigan]: Mr. Chairman, I offer an
amendment.
The Clerk read as follows:
Amendment offered by Mr. Ruppe: In Title III, page 27, line
2, strike out ``$300,000,000,'' and insert in lieu thereof:
``$329,500,000, of which not less than $77,000,000 shall be
used for economic adjustment as authorized by title IX of the
Public Works and Economic Development Act of 1965, as
amended.''. . .
Mr. [John M.] Slack [of West Virginia]: Mr. Chairman, the
amendment would violate clause 2 of rule XXI which provides:
No appropriation shall be reported in any general
appropriation bill, or be in order as an amendment thereto, for
any expenditure not previously authorized by law. . . .
The rule adopted earlier, waiving all points of order against
certain provisions in the bill for failure to comply with the
provisions of clause 2, rule XXI, applies only to those provisions
in the bill. The waiver does not apply to amendments which would
add additional provisions.
This amendment, Mr. Chairman, would add a provision to the bill
earmarking $77 million for economic adjustment under title IX of
the Public Works and Economic Development Act of 1965, as amended.
Extension of that legislation which is required for fiscal year
1977 has not been enacted. . . .
Mr. Ruppe: . . . Mr. Chairman, my amendment would increase the
funding level of title IX of this section from $47.5 to $77
million. It is my understanding that that section does fund
economic development assistance for titles I, II, III, IV, and IX
of the Public Works and Economic Development Act of 1965.
The Chairman: (8) The Chair is ready to rule.
---------------------------------------------------------------------------
8. Otis G. Pike (N.Y.).
---------------------------------------------------------------------------
If the amendment of the gentleman merely changed the
unauthorized figure permitted to remain in the appropriation bill,
it would be in order; but the amendment does mandate the
expenditure of not less than a certain amount of money for a
purpose which has not been authorized and as such constitutes
legislation in an appropriation bill.
The Chair sustains the point of order.
[[Page 5854]]
Changing Allocation Formula; Distribution Set in Authorizing Law
Changed
Sec. 36.16 Where existing law required allocation of 90 percent of
appropriations for public service jobs in accordance with a
distribution formula and permitted allotment of the remaining 10
percent at the discretion of an executive official, an amendment to
a general appropriation bill requiring that a certain amount
therein shall be available only to provide railroad maintenance
jobs by contract with private employers was ruled out (1) as not
specifically authorized as a public service program, and (2) as
directly changing the allocation formula and interfering with
executive discretion contained in that law.
On Mar. 12, 1975,(9) during consideration in the
Committee of the Whole of H.R. 4481 [the Emergency Employment
Appropriation Act of 1975], a point of order was sustained against an
amendment to the following bill text:
---------------------------------------------------------------------------
9. 121 Cong. Rec. 6338, 6339, 94th Cong. 1st Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
temporary employment assistance
For an additional amount for ``Temporary employment
assistance'', $1,625,000,000, to remain available until
December 31, 1975.
Mr. [Samuel L.] Devine [of Ohio]: Mr. Chairman, I offer an
amendment.
The Clerk read as follows:
Amendment offered by Mr. Devine: Page 7, line 6, strike out
the period and insert in lieu thereof the following: ``; of
which amount $250,000,000 shall be available only for use by
State and local prime sponsors to provide emergency jobs for
unemployed workers to perform needed railroad maintenance of
way services pursuant to contracts with railroads located
within the geographical jurisdiction of such sponsors.''
Mr. [George H.] Mahon [of Texas]: Mr. Chairman, I make a point
of order against the amendment on the ground that there is no
authorization for this action and it violates clause 2 of rule XXI.
. . .
Mr. Devine: . . . I recognized when this amendment would be
offered it might be construed as legislation on an appropriation
measure, but I have gone back to the act and I have looked at the
act. The purpose of the act we passed in 1946, the Employment Act,
was consistent with those needs and obligations and other essential
considerations of national policy for the purpose of creating and
maintaining, in a manner calculated to foster and promote free
competitive enterprise and the general welfare, conditions under
which there will be afforded useful employment opportunities--and I
repeat, useful employment opportunities. That is the purpose of the
act.
[[Page 5855]]
What we are doing in this amendment is providing useful
employment opportunities--not leaf raking and not make work jobs,
but useful employment opportunities.
The whole purpose of the bill is to provide funds for public
service jobs. That is exactly the purpose of the amendment, except
it earmarks that. In my opinion, Mr. Chairman, this does not
violate the rules and I think the point of order should be
overruled. . . .
The Chairman: (10) The Chair is prepared rule.
---------------------------------------------------------------------------
10. Jack Brooks (Tex.).
---------------------------------------------------------------------------
The amendment specifies that this quarter billion dollars shall
be available for use only by State and local prime sponsors to
provide emergency jobs for unemployed workers to perform railroad
maintenance. The Chair has examined Public Law 93-567, and there is
no specific authorization for such purpose. The Chair finds that
the proposed amendment further changes the allocation formula
contained in Public Law 93-567, which is described on pages 34 and
35 of the report, and further interferes with the discretion given
the Secretary under section 603(b) of the public law as to the
utilization of the final 10 percent of the authorized amounts. In
chapter 26, section 6 of ``Deschler's Procedure,'' it provides very
clearly that there is ample precedent that such reallocations in
appropriation bills are legislation, and the point of order is
sustained.
Veterans' Preference in Job Training Based on Duration of Unemployment
Sec. 36.17 A proviso in a general appropriation bill specifying that an
appropriation for veterans' job training be obligated on the basis
of those veterans unemployed the longest time, was conceded to be
legislation where existing law did not require that allocation of
funds, and was ruled out as in violation of Rule XXI clause 2(c).
On Oct. 5, 1983,(11) during consideration of H.R. 3959
(supplemental appropriations, fiscal 1984), a point of order was raised
against the following provision:
---------------------------------------------------------------------------
11. 129 Cong. Rec. ----, 98th Cong. 1st Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
For payment of expenses as authorized by the Emergency
Veterans' Job Training Act of 1983 (Public Law 98-77),
$150,000,000, to remain available until September 30, 1986:
Provided, That $25,000,000 of the amount appropriated shall not
become available for obligation until July 1, 1984: Provided
further, That such $25,000,000 shall be obligated on the basis
of those veterans unemployed the longest period of time. . . .
Mr. [Marvin] Leath of Texas: Mr. Chairman, I make a point of
order that the first and second provisos in the paragraph under the
heading ``Veterans Job Training,'' page 2 lines 21 through 25,
constitute legislation on an appropriation bill and are not in
order under rule XXI, clause 2. . . .
Mr. [Edward P.] Boland [of Massachusetts]: Mr. Chairman, I
concede the point of order.
[[Page 5856]]
The Chairman: (12) The point of order is conceded.
---------------------------------------------------------------------------
12. Martin Frost (Tex.).
---------------------------------------------------------------------------
Contravening Distribution Formula in Authorization
Sec. 36.18 Where existing law (42 USC Sec. 3056d) required an
allocation of funds appropriated for community service employment
programs for older Americans between national contractors and state
agencies at a designated percentage by setting a ceiling on
allocations to national contractors, language in a paragraph of a
general appropriation bill directing the availability of funds to
national contractors above the percentage ceiling was held to be
legislation changing the distribution formula in existing law.
On July 29, 1982,(13) during consideration in the
Committee of the Whole of H.R. 6863 (supplemental appropriations,
fiscal 1982), a point of order was sustained against a provision
therein, as follows:
---------------------------------------------------------------------------
13. 128 Cong. Rec. 18637, 18638, 97th Cong. 2d Sess.
---------------------------------------------------------------------------
The Chairman: (14) Are there any points of order
with regard to this chapter?
---------------------------------------------------------------------------
14. George E. Brown, Jr. (Calif.).
---------------------------------------------------------------------------
Mr. [Mario] Biaggi [of New York]: Mr. Chairman, I raise a point
of order against the language in the paragraph entitled ``Community
Service Employment for Older Americans.'' . . .
The portion of the bill to which the point of order relates is
as follows:
community service employment for older americans
For an additional amount for ``Community service employment
for older Americans'', $210,572,000, of which $168,457,600
shall be for national grants or contracts with public agencies
and public or private nonprofit organizations under paragraph
(1)(A) of section 506(a) of the Older Americans Act of 1965, as
amended, and $42,114,400 shall be for grants to States under
paragraph (3) of section 506(a) of said Act. . . .
Mr. Chairman, this is a clear example of legislating on an
appropriations bill which is expressly prohibited under clause 2,
rule XXI of the House. Very simply, Mr. Chairman, this language
clearly changes the application of existing law for the title V
program through the appropriations process. The committee bill
ignores the language in the authorizing statute, section 506 of the
Older Americans Act as amended, by changing the current formula for
distribution of funds to national contractors, increasing it to 80
percent with the remaining 20 percent to be provided to the States.
Under current law, as reaffirmed by last year's reauthorization of
the Older Americans Act, the distribution of funds between national
contractors and States is 76 percent and 24 percent, respectively.
. . .
Mr. [Neal] Smith of Iowa: . . . Mr. Chairman, I point out that
under the
[[Page 5857]]
legislation that the gentleman refers to there is an attempt made
apparently to say that if more than a certain amount is
appropriated, then the Secretary shall reserve part of that for
another purpose. It does not prohibit the Congress from making the
appropriation. . . .
The Chairman: The Chair is prepared to rule.
The gentleman from New York (Mr. Biaggi) makes a point of order
that the language on page 34, line 6, sets aside for national
grants or contracts a figure which is in excess of that specified
in the law as being permissible for national grants or contracts.
Under the precedents it is not in order in a general
appropriation bill to direct that certain funds therein shall be
distributed without regard to the provisions of the authorizing
legislation.
The Chair is of the opinion that the law cited by the gentleman
from New York (42 U.S.C. 3056d) is inconsistent with this
appropriation allocation. This language has the effect of
contravening the distribution formula on that law. The Chair
upholds the point of order.
Commodity Credit Corporation; Directing Minimum Spending
Sec. 36.19 A paragraph in a general appropriation bill directing that
not less than a specified sum be available for a certain purpose
was ruled out as legislation in violation of Rule XXI clause 2,
constituting a direction to spend a minimum amount, rather than a
negative limitation.
On July 29, 1982,(15) during consideration in the
Committee of the Whole of the bill H.R. 6863 (supplemental
appropriations, fiscal 1982), a point of order was sustained against
the following provision:
---------------------------------------------------------------------------
15. 128 Cong. Rec. 18623, 97th Cong. 2d Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
As authorized by section 301 of Public Law 95-279,
$5,000,000,000 shall be available to the Commodity Credit
Corporation for necessary expenses in carrying out its
authorized programs, to remain available without regard to
fiscal year limitations: Provided, That not less than
$500,000,000 of this amount shall be available for export
credit loans as authorized by the Charter of the Commodity
Credit Corporation and the export authorities conferred upon
the Corporation by the Corporation's charter shall be
controlling without restriction. . . .
Mr. [Silvio O.] Conte [of Massachusetts]: Mr. Chairman, I raise
a point of order on that section. . . .
On line 10, not less than $500 million of this amount shall be
available for export credit loans, and so forth, is forcing the
agency to spend a minimal amount. . . .
Mr. [Jamie L.] Whitten [of Mississippi]: Mr. Chairman, this is
simply an earmarking of a given amount that is appropriated in the
bill, and it is within the rule.
Mr. Chairman, this goes back to the charter of the Corporation,
the Com
[[Page 5858]]
modity Credit Corporation. That being true under that charter, it
has authority to do this, and we are just directing that it use the
authority that already exists. So, it is a directive for the proper
use of funds in line with the authorization which is granted in the
charter of the Commodity Credit Corporation.
Mr. Conte: The gentleman should have worded his language as
``not to exceed $500 million.'' Furthermore, in line 13, ``. . .
and the export authorities conferred upon the Corporation by the
Corporation's charter shall be controlling without restriction.''
That requires a positive act by the agency, and therefore a point
of order lies against it.
Mr. Whitten: I present the statement of the section that makes
the authorization to which this applies. It appears in title 15, on
page 1203, and is section 1692 where it first appears.
In the fulfillment of its purposes and in carrying out its
annual budget programs submitted to and approved by the
Congress pursuant to the Government Corporation Control Act [31
U.S.C. 841 et seq.], the Corporation is authorized to use its
general powers only to--
(a) Support the prices of agricultural commodities through
loans, purchases, payments and other operations.
(b) Make available materials and facilities required in
connection with the production and marketing of agricultural
commodities.
(c) Procure agricultural commodities for sale to other
Government agencies, foreign governments and domestic, foreign,
or international relief or rehabilitation agencies, and to meet
domestic requirements.
(d) Remove and dispose of or aid in the removal or
disposition of surplus agricultural commodities.
(e) Increase the domestic consumption of agricultural
commodities by expanding or aiding in the expansion of domestic
markets or by developing or aiding in the development of new
and additional markets, marketing facilities, and uses for such
commodities.
(f) Export or cause to be exported, or aid in the
development of foreign markets for agricultural commodities.
That being the authority they have, it is simply a matter of
advising what to do within the authority already granted.
The Chairman: (16) The Chair is ready to rule.
---------------------------------------------------------------------------
16. George E. Brown, Jr. (Calif.).
---------------------------------------------------------------------------
The Chair has heard the point of order and listened to the
arguments on both sides. It is the Chair's intention to sustain the
point of order on the grounds that this is not a negative
limitation on an expenditure, but is a legislative direction to the
agency involved.
Transferring Defense Funds for Local Use
Sec. 36.20 A paragraph in a general appropriation bill transferring
available funds from a department to another department and
directing the use to which those funds must be put was conceded and
held to be legislation in violation of Rule XXI clause 2 as well as
a reappropriation violating Rule XXI clause 6.
[[Page 5859]]
On Dec. 8, 1982,(17) during consideration in the
Committee of the Whole of the Department of Defense appropriation bill,
a point of order was sustained to a portion of that bill, as follows:
---------------------------------------------------------------------------
17. 128 Cong. Rec. 29449, 29450, 97th Cong. 2d Sess.
---------------------------------------------------------------------------
Mr. [William] Nichols [of Alabama]: Mr. Chairman, I have a
point of order.
The portion of the bill to which the point of order relates is
as follows:
Sec. 793. Of the funds available to the Department of
Defense, $200,000 shall be transferred to the Department of
Education which shall grant such sum to the Board of Education
of the Highland Falls-Fort Montgomery, New York, central school
district. The funds transferred by this section shall be in
addition to any assistance to which the Board may be entitled
under subchapter 1, chapter 13 of Title 20 United States Code.
. . .
. . . I make a point of order against section 793, which
provides appropriations without authorization, and constitutes
legislation on an appropriation bill, which I believe to be in
violation of clause 2 of rule XXI. . . .
Mr. [Joseph P.] Addabbo [of New York]: . . . Mr. Chairman, the
section is subject to a point of order, but this is a special case.
These are children of men and women at West Point who are attending
the public schools. If these funds are not allocated, the school
will close and there will be no school for these young people to
attend. . . .
The Chairman Pro Tempore: (18) The gentleman insists
on his point of order, and the Chair is ready to rule.
---------------------------------------------------------------------------
18. Don Bailey (Pa.).
---------------------------------------------------------------------------
The Chair will have to rule that, for the reasons conceded, the
point of order to section 793 as stated by the gentleman from
Alabama (Mr. Nichols) is sustained.
Indian Education; Mandating Expenditures Where Law Grants Discretion
Sec. 36.21 To a paragraph of a general appropriation bill containing
funds for the operation of Indian programs, an amendment providing
that Indian tribes shall receive at least 90 percent of the amount
under an educational service contract for the ensuing fiscal year
as was received under the existing contract (thereby mandating
expenditures) was ruled out as legislation in violation of Rule XXI
clause 2, where it was shown that existing law permitted the
cancellation of such contracts upon a finding of unsatisfactory
performance.
On June 25, 1976,(19) it was held that, where existing
law confers discretionary authority upon a federal official to cancel
contracts, an amendment to a general appropriation bill requiring the
expenditure of a certain amount
[[Page 5860]]
under those contracts (a ``hold-harmless'' provision) is legislation
and subject to a point of order. On that day, during consideration in
the Committee of the Whole of the Department of the Interior
appropriation bill (H.R. 14231), a point of order was sustained against
the following amendment:
---------------------------------------------------------------------------
19. 122 Cong. Rec. 20557, 94th Cong. 2d Sess.
---------------------------------------------------------------------------
Mr. [William A.] Steiger of Wisconsin: Mr. Chairman, I offer an
amendment.
(The portion of the bill to which the amendment relates is as
follows:)
For expenses necessary to provide education and welfare
services for Indians, either directly or in cooperation with
States and other organizations, including payment (in advance
or from date of admission), of care, tuition, assistance, and
other expenses of Indians in boarding homes, institutions, or
schools . . . and for the general administration of the Bureau
of Indian Affairs, including such expenses in field offices,
$602,610,000, of which not to exceed $32,952,000 for assistance
to public schools shall remain available for obligation until
September 30, 1978; and includes expenses necessary to carry
out the provisions of sections 8 and 19(a) of Public Law 93-
531, $2,040,000 to remain available until expended, of which
not more than $250,000 shall be available for payments pursuant
to section 8(e) of said Act: Provided, That the Secretary of
the Interior is directed, upon the request of any tribe, to
enter into a contract or contracts with any tribal organization
of any such tribe for the provision of law enforcement, if such
contract proposal meets the criteria established by Public Law
93-638.
The Clerk read as follows:
Amendment offered by Mr. Steiger of Wisconsin: Page 18,
line 1, after ``1978'' insert: ``(Provided, however, That no
Indian tribe, tribal organization, or State education agency
having a contract for educational services with the Secretary
of the Interior under title I of the Indian Self-Determination
and Education Assistance Act shall receive an amount under such
contract during the fiscal year ending September 30, 1977,
which is less than 90 per centum of the amount received under
such contract during the fiscal year ending June 30, 1976, and
the transitional quarter ending September 30, 1976).''
Mr. [Sidney R.] Yates [of Illinois]: . . . Mr. Chairman, I
raise a point of order against the amendment offered by the
gentleman of Wisconsin. Mr. Chairman, Mr. Steiger's amendment
requires the Secretary of the Interior to enter into contracts in
fiscal year 1977 for educational services which are not less than
90 percent of the amount received under contract in fiscal year
1976. This amendment changes existing law and is legislation on an
appropriation bill.
Section 109 of title I of Public Law 93-638, the Indian Self
Determination and Education Assistance Act allows the Secretary of
Interior to cancel contracts when he determines that the Tribal
organization's performance is not satisfactory. This amendment
precludes the Secretary from cancelling any fiscal year 1976
contract and states they must be funded in fiscal year 1977 at not
less than 90 percent of the fiscal year 1976 level. . . .
Mr. Steiger of Wisconsin: . . . Mr. Chairman, the amendment is
nothing more than a proviso which would restrict what would happen
under the
[[Page 5861]]
Johnson-O'Malley Act. It is similar in concept and in language to a
provision that was in last year's appropriation bill, where a hold-
harmless provision was, in fact, provided for very similar to this
provision.
It does seem to me that when we attempt, as this does, simply
to restrict within the framework of the Johnson-O'Malley Act and
the framework of the funds under this bill, that it is not, in
fact, legislation. It does not create any additional responsibility
for the Bureau of Indian Affairs and is simply a clarification of
what could happen when we go down this road. . . .
The Chairman: (20) The Chair is prepared to rule.
---------------------------------------------------------------------------
20. Walter Flowers (Ala.).
---------------------------------------------------------------------------
The point of order made by the gentleman from Illinois (Mr.
Yates) that the amendment constitutes legislation on an
appropriation bill appears to be well taken. The Chair has examined
section 109 of Public Law 93-638.
The amendment definitely does not amount to a limitation of
funds in the pending bill. It is legislation on an appropriation
bill. The fact that it appeared in a prior appropriation act would
not protect the amendment at this time . . . and the Chair must
sustain the point of order.
Elementary Education; ``Hold Harmless'' Provision Mandating Expenditure
Level
Sec. 36.22 A ``hold harmless'' proviso in the education division
appropriation bill, the effect of which was to prevent states from
receiving less in the next fiscal year than they had received in
the current fiscal year, there being no similar provision in the
authorizing legislation, was conceded to be legislation and ruled
out.
On Apr. 16, 1975,(1) language in a general appropriation
bill providing that grants to be paid to states for certain elementary
and secondary school aid during fiscal 1976 shall not be less than
amounts available for that purpose in the preceding fiscal year was
conceded to change the ratable reduction formula in existing law and
was ruled out as legislation in violation of Rule XXI clause
2.(2) The provision in question and point of order were as
follows:
---------------------------------------------------------------------------
1. 121 Cong. Rec. 10357, 94th Cong. 1st Sess.
2. Such language, in effect, mandates expenditures and is thus subject
to a point of order. See also Deschler's Procedure, Ch. 26,
Sec. Sec. 16.4, 16.5.
---------------------------------------------------------------------------
The Clerk read as follows:
Provided further, That the amount made available to each
State from the sum heretofore appropriated for the fiscal year
1976 or from the sum appropriated herein for the fiscal year
1977 for title IV, part C of the Elementary and Secondary
Education Act shall not be less than the amount made available
for comparable purposes for fiscal year 1975.
Mr. [Joseph P.] Addabbo [of New York]: Mr. Chairman, I raise a
point of
[[Page 5862]]
order that the language as it appears on page 3, line 1, through
line 6, is legislation on an appropriation bill. . . .
Mr. [Daniel J.] Flood [of Pennsylvania]: . . . This is what is
sometimes referred to as the ``hold harmless'' provision, and the
effect, of course, of this language is simply to prevent the
reductions in State grants from last year. I will make that very
clear. I will say the formula for making these distributions will
certainly change under that new consolidated program enacted last
year, and there are about 20 States now that will receive less
under the so-called new consolidated program than they received
under the previous program.
The language in the bill was an attempt to remedy that very
situation. This is the effect of the language.
Of course, unfortunately, under title IV, part C, of the
Elementary and Secondary Education Act it does not specifically
authorize a ``hold harmless'' provision. We will have to concede
the point of order, but this is just so the Members will know.
The Chairman: (3) The gentleman from Pennsylvania
concedes the point of order, and the Chair sustains the point of
order. Therefore, the language appearing on page 3, lines 1 through
6, is stricken from the bill.
---------------------------------------------------------------------------
3. James C. Wright, Jr. (Tex.).
---------------------------------------------------------------------------
CHAPTER 26
Unauthorized Appropriations; Legislation on Appropriation Bills
C. PROVISIONS AS ``CHANGING EXISTING LAW,'' GENERALLY
Sec. 37. Grant or Restriction of Contract Authority
The precedents in this section, for the most part, pre-date the
Congressional Budget Act of 1974. Section 401(a) of that act (Pub. L.
No. 93-344) prohibits the inclusion of new contract, spending or
borrowing authority in legislative bills unless such authority is
limited to the extent or in amounts provided in appropriation acts.
Therefore, since the enactment of that law, the inclusion of proper
limiting language in a general appropriation bill, if specifically
permitted by law, would not render that language subject to a point of
order under Rule XXI clause 2, since it would no longer ``change
existing law.'' -------------------
Grant of Contract Authority
Sec. 37.1 Language in a general appropriation bill authorizing a
governmental agency to enter into contracts was held to be
legislation and not in order.
On Jan. 18, 1940,(4) during consideration in the
Committee of the Whole of the independent offices appropriation bill
(H.R. 7922), a point of order was raised against the following
provision:
---------------------------------------------------------------------------
4. 86 Cong. Rec. 508, 509, 76th Cong. 3d Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
In addition to the contract authorizations of $115,000,000
contained in the Third Deficiency Appropriation Act, fiscal
year 1937, and
[[Page 5863]]
$230,000,000 in the Independent Offices Appropriation Act,
1940, the Commission is authorized to enter into contract for
further carrying out the provisions of the Merchant Marine Act,
1936, as amended, in an amount not to exceed $150,000,000.
Mr. [John] Taber [of New York]: Mr. Chairman, I make the point
of order against the paragraph on the ground that it is legislation
on an appropriation bill. I refer to the paragraph beginning in
line 22, page 71, and ending in line 3, page 72.
Mr. [Schuyler Otis] Bland [of Virginia]: Mr. Chairman, I desire
to be heard upon the point of order. . . .
Mr. Taber: Mr. Chairman, there is something to say on the point
of order. Almost every one of the sections that has been read
specifically says ``out of available funds.'' The general situation
is that these contracts cannot be entered into without specific
authority, and those things are not provided for in the general
legislation.
The Chairman: (5) The Chair is ready to rule.
---------------------------------------------------------------------------
5 Lindsay C. Warren (N.C.).
---------------------------------------------------------------------------
The gentleman from New York [Mr. Taber] makes the point of
order that the paragraph now under consideration is legislation on
an appropriation bill. Of course, it is well known that the United
States Maritime Commission has authority under the law to enter
into contracts. Assuming that to be true, what would be the purpose
in that Commission having authority under an appropriation bill to
enter into contracts, unless it was for some new purpose?
An almost similar proposition of this kind came up on the
second deficiency bill on April 28, 1937, at which time the
Committee of the Whole was presided over by Mr. Vinson, of
Kentucky, when an amendment was offered dealing with the Tennessee
Valley Authority. The Chair, at that time, construed it to be
legislation on an appropriation bill. The present occupant of the
chair so construes it, and sustains the point of order.
Sec. 37.2 Language in the District of Columbia appropriation bill
authorizing the commissioners to enter into contracts for the
construction of the first unit of an extensible library building at
a cost not exceeding $1,118,000 and reappropriating balance of
$60,000 previously appropriated for preparation of plans and
specifications, to be available without regard to the
Classification Act of 1923 or section 3709 of the Revised Statutes
was conceded and held to be legislation on an appropriation bill.
On Apr. 6, 1939,(6) during consideration in the
Committee of the Whole of the District of Columbia appropriation bill
(H.R. 5610), a point of order was raised against the following
provision:
---------------------------------------------------------------------------
6. 84 Cong. Rec. 3923, 76th Cong. 1st Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
Not to exceed $350,000 of the unexpended balance of the
appropria
[[Page 5864]]
tion of $500,000 contained in the District of Columbia
Appropriation Act for the fiscal year 1939 for beginning the
construction in square 533 of the first unit of an extensible
building for the government in the District of Columbia is
hereby reappropriated and made available for beginning the
construction in square 491 of the first unit of an extensible
library building, including quarters for the administrative
offices of the Board of Education, [and the Commissioners are
authorized to enter into contract or contracts for the
construction of such first unit at a total cost, including
improvement of grounds and all necessary furniture and
equipment, not to exceed $1,118,000: Provided, That the
unexpended balance of the appropriation of $60,000, contained
in such act for the preparation of plans and specifications for
a library building to be constructed on square 491 is continued
available for the same purpose during the fiscal year 1940, and
shall be available for the employment of professional and other
services, without reference to the Classification Act of 1923,
as amended, civil-service requirements, or section 3709 of the
Revised Statutes.]
Mr. [Robert F.] Rich [of Pennsylvania]: Mr. Chairman, I make
the point of order against the language beginning on line 23, page
18, after the word ``education'', down to the end of the paragraph
on page 19, ending in line 10. It is legislation on an
appropriation bill.
The Chairman: (7) Does the gentleman from
Mississippi desire to be heard on the point of order?
---------------------------------------------------------------------------
7. Claude V. Parsons (Ill.).
---------------------------------------------------------------------------
Mr. [Ross A.] Collins [of Mississippi]: The gentleman makes his
point of order to the language beginning with the word ``and'', in
line 23, and ending with line 10 on page 19?
Mr. Rich: Yes.
Mr. Collins: And not to the entire paragraph?
Mr. Rich: Not to the entire paragraph.
Mr. Collins: Mr. Chairman, I concede the point of order.
The Chairman: The point of order is sustained.
Grant of Contract and Obligational Authority, Tennessee Valley
Authority
Sec. 37.3 Although under existing law it may be in order to appropriate
money for a certain object, it is not in order to grant authority
to incur obligations and enter into contracts for the acquisition
of such objects on an appropriation bill.
On Apr. 28, 1937,(8) during consideration in the
Committee of the Whole of the second deficiency appropriation bill, a
point of order was raised against the following provision:
---------------------------------------------------------------------------
8. 81 Cong. Rec. 3909-11, 75th Cong. 1st Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
Tennessee Valley Authority
For the purpose of carrying out the provisions of the act
entitled ``The Tennessee Valley Authority Act of 1933'',
approved May 18, 1933 (U.S.C., title 16, ch. 12a), as amended
by the act approved August 31, 1935 (49 Stat. 1075-1081),
including
[[Page 5865]]
the continued construction of Pickwick Landing Dam,
Guntersville Dam, Chickamauga Dam, and Hiwassee Dam, and the
continuation of preliminary investigations as to the
appropriate location and type of a dam on the lower Tennessee
River, and the acquisition of necessary land, the clearing of
such land, relocation of highways, and the construction or
purchase of transmission lines and other facilities, and all
other necessary works authorized by such acts, and for printing
and binding, law books, books of reference, newspapers,
periodicals, purchase, maintenance, and operation of passenger-
carrying vehicles, rents in the District of Columbia and
elsewhere, and all necessary salaries and expenses connected
with the organization, operation, and investigations of the
Tennessee Valley Authority, and for examination of estimates of
appropriations and activities in the field, fiscal year 1938,
$40,166,270: Provided, That this appropriation and any
unexpended balance on June 30, 1937, in the ``Tennessee Valley
Authority fund, 1937'', and the receipts of the Tennessee
Valley Authority from all sources during the fiscal year 1938
(except as limited by sec. 26 of the Tennessee Valley Authority
Act of 1933, as amended), shall be covered into and accounted
for as one fund to be known as the ``Tennessee Valley Authority
fund, 1938'', to remain available until June 30, 1938, and to
be available for the payment of obligations chargeable against
the ``Tennessee Valley Authority fund, 1937'': [Provided
further, That in addition to the amount herein appropriated,
the Tennessee Valley Authority is hereby authorized to incur
obligations and enter into contracts for the procurement of
equipment to be installed in dams and power-houses in an amount
not in excess of $4,000,000, and this action shall be deemed a
contractual obligation of the Tennessee Valley Authority and
the United States for payment of the cost thereof.]
Mr. [Bertrand H.] Snell [of New York]: Mr. Chairman, I make a
point of order against the proviso on page 9, beginning with line
7, down to the end of line 14, on the ground it is legislation on
an appropriation bill.
The Chairman: (9) Does the gentleman from Virginia
desire to be heard?
---------------------------------------------------------------------------
9. Fred M. Vinson (Ky.).
---------------------------------------------------------------------------
Mr. [Clifton A.] Woodrum [of Virginia]: Mr. Chairman, there may
be merit in the gentleman's point of order, but I call his
attention to the fact if the point of order is sustained and that
fund is cut out, the gross amount of the bill, $40,000,000, will
have to be increased by $4,000,000 if the Tennessee Valley
Authority is to buy equipment and machinery for these dams under
construction. Of course, I am frank to admit I am speaking to the
merits of the proposition and not to the point of order. This
$4,000,000 is not an appropriation. It is an authorization for them
to enter into contracts for equipment in connection with these dams
that will be constructed in the future. They are long-time
contracts for machinery that has to be built ahead of time. If we
cut out this item, they cannot buy the equipment for the dams which
we have spent millions of dollars to construct, or else we have to
appropriate the money and make it available to them. . . .
The Chairman: The Chair is ready to rule. . . .
The Tennessee Valley Authority Act provides authority for the
appropria
[[Page 5866]]
tion contained in this paragraph. However, the language in the
proviso authorizes the Tennessee Valley Authority to enter into
certain contracts and to incur certain obligations. The Chair rules
that the proviso is legislation upon an appropriation bill, and
therefore sustains the point of order made by the gentleman from
New York.
Sec. 37.4 Although under existing law it may be in order to appropriate
money for a certain object it is not in order to grant authority to
incur obligations and enter into contracts for the acquisition of
such object on an appropriation bill: language in a general
appropriation bill authorizing the Tennessee Valley Authority to
incur obligations and enter into contracts was held to constitute
legislation and therefore not in order.
On Feb. 8, 1939,(10) during consideration in the
Committee of the Whole of the independent offices appropriation bill
(H.R. 3743), a point of order was raised against the following
provision:
---------------------------------------------------------------------------
10. 84 Cong. Rec. 1239, 76th Cong. 1st Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
Tennessee Valley Authority
For the purposes of carrying out the provisions of the act
entitled ``The Tennessee Valley Authority Act of 1933,''
approved May 18, 1933, as amended by the act approved August
31, 1935 (16 U.S.C., ch. 12a) . . . and the acquisition of
necessary land . . . and all other necessary works authorized
by such acts . . . and for examination of estimates of
appropriations and activities in the field, fiscal year 1940,
$39,000,000: Provided, That this appropriation and any
unexpended balance on June 30, 1939, in the ``Tennessee Valley
Authority fund, 1939,'' and the receipts of the Tennessee
Valley Authority from all sources during the fiscal year 1940
(except as limited by sec. 26 of the Tennessee Valley Authority
Act of 1933, as amended), shall be covered into and accounted
for as one fund to be known as the ``Tennessee Valley Authority
fund, 1940'', to remain available until June 30, 1940, and to
be available for the payment of obligations chargeable against
the ``Tennessee Valley Authority fund, 1939,'' and for
contractual obligations for the procurement of equipment as
authorized in the Independent Offices Appropriation Act, fiscal
year 1939: Provided further, That in addition to the amount
herein appropriated, the Tennessee Valley Authority is hereby
authorized to incur obligations and enter into contracts for
the procurement of equipment to be installed in dams and
powerhouses in an amount not in excess of $4,000,000, and this
action shall be deemed a contractual obligation of the
Tennessee Valley Authority and the United States for payment of
the cost thereof. . . .
Mr. [J. William] Ditter [of Pennsylvania]: Mr. Chairman, I make
the point of order that, starting with line 17, page 48,
legislation is provided for granting authority to the Tennessee
Valley Authority in excess of that which it presently has by
statutory law. There is no existing law providing for the authority
that would be exer
[[Page 5867]]
cised by the T.V.A. under this provision, and since it is
legislation attached to an appropriation bill I make a point of
order against the entire paragraph.
Mr. [Clifton A.] Woodrum of Virginia: Mr. Chairman, this
language was carried in the appropriation act last year, but the
gentleman is correct. It is subject to a point of order, and I
concede the point of order. I offer the paragraph with that portion
eliminated.
The Chairman: (11) The Chair is ready to rule.
---------------------------------------------------------------------------
11. Fritz G. Lanham (Tex.).
---------------------------------------------------------------------------
A similar point of order as indicated by the gentleman from
Virginia [Mr. Woodrum] was passed upon by Chairman Vinson, of
Kentucky, on the 28th of April 1937, to the effect that language in
a general appropriation bill authorizing the T.V.A. to incur
obligations and enter into contracts was held to be legislation and
not in order.
In accordance with that ruling, the Chair sustains the point of
order made by the gentleman from Pennsylvania [Mr. Ditter].
Contract Authority Preceding Appropriation
Sec. 37.5 Language in a general appropriation bill authorizing an
executive officer to enter into contracts where the money for such
contracts has not been appropriated was held to be legislation and
not in order.
On May 14, 1937,(12) during consideration in the
Committee of the Whole of the Interior Department appropriation bill
(H.R. 6958), a point of order was raised against the following
provision:
---------------------------------------------------------------------------
12. 81 Cong. Rec. 4595, 75th Cong. 1st Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
For the acquisition of lands, interest in lands, water
rights and surface rights to lands, and for expenses incident
to such acquisition, in accordance with the provisions of the
act of June 18, 1934 (48 Stat., p. 985), including personal
services, purchase of equipment and supplies, and other
necessary expenses, $900,000, together with the unexpended
balance of the appropriation for this purpose for the fiscal
year 1937, of which not to exceed $20,000 shall be available
for personal services in the District of Columbia: Provided,
That within the States of Arizona, New Mexico, and Wyoming no
part of said sum shall be used for the acquisition of lands
outside of the boundaries of existing Indian reservations:
Provided further, That in addition to the amount herein
appropriated the Secretary of the Interior may also incur
obligations, and enter into contracts for the acquisition of
additional land, not exceeding a total of $500,000, and his
action in so doing shall be deemed a contractual obligation of
the Federal Government for the payment of the cost thereof, and
appropriations hereafter made for the acquisition of land
pursuant to the authorization contained in the act of June 18,
1934, shall be available for the purpose of discharging the
obligation or obligations so created.
Mr. [J. William] Ditter [of Pennsylvania] and Mr. [Cassius C.]
Dowell [of Iowa] rose.
Mr. Ditter: Mr. Chairman, a point of order.
[[Page 5868]]
The Chairman: (13) The gentleman will state it.
---------------------------------------------------------------------------
13. Jere Cooper (Tenn.).
---------------------------------------------------------------------------
Mr. Ditter: Mr. Chairman, I make the point of order against the
entire paragraph that it is legislation on an appropriation bill.
The particular portion starting with the words ``Provided further''
is distinctly legislative in character, and, being legislation, it
kills the paragraph. . . .
The Chairman: The gentleman from Pennsylvania makes a point of
order against the paragraph appearing on page 21, beginning in line
9.
Under existing law executive officers of the Government have
the authority to enter into contracts where money has already been
appropriated. Obviously, this is for the purpose of allowing
executive officers to enter into contracts where the money has not
been appropriated.
Therefore this is legislation on an appropriation bill, not
authorized under the rules of the House, and the Chair sustains the
point of order against the entire paragraph.
Authority to Make Binding Grants and Contracts as Obligations on Future
Appropriations
Sec. 37.6 An appropriation to permit the Surgeon General, upon the
recommendation of the National Advisory Council, to approve
applications for research and training grants, including grants for
drawing plans, erection of buildings, and acquisition of land
therefor, not to exceed a total of $3 million was held to be
authorized by section 405 of the Public Health Service Act, but the
inclusion of a provision for contract authorization beyond the
current fiscal year was held to constitute legislation.
On Apr. 26, 1950,(14) the Committee of the Whole was
considering H.R. 7786, the Labor Department and Federal Security Agency
chapter of the general appropriation bill for 1951. At one point the
Clerk read as follows:
---------------------------------------------------------------------------
14. 96 Cong. Rec. 5799, 81st Cong. 2d Sess.
---------------------------------------------------------------------------
Amendment offered by Mr. [Frank B.] Keefe [of Wisconsin]: On
page 139, line 18, strike out the period at the end of the
paragraph and insert in lieu thereof the following: ``; and in
addition to the amount appropriated herein, the Surgeon General is
authorized, upon the recommendation of the National Advisory Cancer
Council, to approve applications for research and training grants,
including grants for drawing plans, erection of buildings, and
acquisition of land therefor, not to exceed a total of $3,000,000
for periods beyond the current fiscal year, and such grants shall,
if approved during the current fiscal year, constitute a
contractual obligation of the Federal Government.''
Mr. [Christopher C.] McGrath [of New York]: Mr. Chairman, I
make a
[[Page 5869]]
point of order. I raise the point of order that this is legislation
on an appropriation bill; and, further, that the basic legislation
does not authorize contract authorizations. . . .
Mr. Keefe: Mr. Chairman, the purpose of the amendment is to
give contractual authority for cancer research construction grants.
The basic authorization for construction grants is found in section
405 of the Public Health Service Act, as amended, which reads as
follows:
Appropriations to carry out the purposes of this title,
cancer, shall be available for acquisition of land, or the
erection of buildings only if so specified.
Under that language, Mr. Chairman, the Congress has, in
identical language as in the amendment submitted by the gentleman
from Wisconsin, accepted appropriations, and appropriations have
been made with the identical language in fiscal years 1948 and 1949
appropriation bills. I think the language is certainly broad enough
to authorize this amendment.
The Chairman: (15) Does the gentleman from Rhode
Island desire to be heard on the point of order?
---------------------------------------------------------------------------
15. Jere Cooper (Tenn.).
---------------------------------------------------------------------------
Mr. [John E.] Fogarty [of Rhode Island]: Yes, I do, Mr.
Chairman.
The appropriation bill passed a year ago, on page 175, included
practically the same language, it seems to me, when we said at that
time:
And in addition to the amount herein, the Surgeon General
is authorized, upon the recommendation of the National Advisory
Cancer Council, to approve applications for research and
training grants, including grants for drawing plans, erection
of buildings, and acquisition of land therefor, not to exceed a
total of $6,000,000, for periods beyond the current fiscal
year, and such grants shall, if approved during the current
fiscal year, constitute a contractual obligation on the Federal
Government.
It seems to me that this language and similar language having
been in the bill in past years, it would be in order at this time.
I go along with the views expressed by the gentleman from
Wisconsin [Mr. Keefe] that this is in order at this time.
Mr. Keefe: May I say further, Mr. Chairman, it seems to me the
basic act, under which this national cancer program was set up in
the bill to which I have referred, constitutes basic authority for
this proposal.
The Chairman: The Chair is prepared to rule.
The gentleman from Wisconsin [Mr. Keefe] has offered an
amendment which has been reported. The gentleman from New York [Mr.
McGrath] has made a point of order against the amendment on the
ground that it contains legislation on an appropriation bill, in
violation of the rules of the House.
The Chair has examined the amendment and section 405 of the
Public Health Service Act referred to by the gentleman from
Wisconsin.
The Chair might comment on the statement made by the gentleman
from Rhode Island to the extent of saying that although a provision
of this nature may have been included in previous acts there may
not have been any point of order made against it; so
[[Page 5870]]
that could not be decisive in considering the question now
presented.
The Chair is of the opinion that section 405 cited by the
gentleman from Wisconsin does constitute legislative authority for
the appropriation. The Chair invites attention to the fact that the
pending amendment includes a provision for contract authorization
beyond the present fiscal year, which, in the opinion of the Chair,
would constitute legislation on an appropriation bill and would be
in violation of the rules of the House. For that reason the Chair
is compelled to sustain the point of order.
Restriction on Contract Authority Contained in Bill
Sec. 37.7 To a section of an Agriculture Department appropriation bill
containing legislation authorizing the Secretary of Agriculture to
make such additional commitments as may be necessary in order to
provide full parity payments, an amendment providing that the
payments shall not exceed an amount necessary to equal parity
``when added to the market price and the payment made . . . for
conservation . . . of agricultural land resources,'' was held a
proper limitation restricting the availability of funds which did
not add further legislation to that already contained in the bill.
On Mar. 9, 1942,(16) during consideration in the
Committee of the Whole of the Agriculture Department appropriation
bill, the Clerk read the following provisions:
---------------------------------------------------------------------------
16. 88 Cong. Rec. 2124, 2125, 77th Cong. 2d Sess.
---------------------------------------------------------------------------
parity payments
To enable the Secretary of Agriculture to make parity payments
to producers of wheat, cotton, corn (in the commercial corn-
producing area), rice, and tobacco pursuant to the provisions of
section 303 of the Agricultural Adjustment Act of 1938, there are
hereby reappropriated the unobligated balances of the
appropriations made under this head by the Department of
Agriculture Appropriation Acts for the fiscal years 1941 and 1942,
to remain available until June 30, 1945, and the Secretary is
authorized and directed to make such additional commitments or
incur such additional obligations as may be necessary in order to
provide for full parity payments: . . . Provided further, That such
payments with respect to any such commodity shall be made with
respect to a farm in full amount only in the event that the acreage
planted to the commodity for harvest on the farm in 1943 is not in
excess of the farm acreage allotment established for the commodity
under the agricultural conservation program, and, if such allotment
has been exceeded, the parity payment with respect to the commodity
shall be reduced by not more than 10 percent for each 1 percent, or
fraction thereof, by which the acreage planted to the commodity is
in excess of such allotment. The Secretary
[[Page 5871]]
may also provide by regulations for similar deductions for planting
in excess of the acreage allotment for the commodity on other farms
or for planting in excess of the acreage allotment or limit for any
other commodity for which allotments or limits are established
under the agricultural conservation program on the same or any
other farm.
An amendment was offered, as follows:
Amendment offered by Mr. Taber [as subsequently modified by
unanimous consent]: On page 77, line 5, after the word ``farm,''
strike out the period, insert a colon and a proviso as follows:
``Provided further, That parity payments, under the authority of
this paragraph, shall not exceed such amount as is necessary to
equal parity when added to the market price and the payment made or
to be made for conservation and use of agricultural land resources
under sections 7 to 17, inclusive, of the Soil Conservation and
Domestic Allotment Act approved February 29, 1936, as amended; and
the provisions of the Agricultural Adjustment Act of 1938 as
amended; Provided further, That the total expenditures made and the
contracts entered into in pursuance of this paragraph shall not
exceed in all $212,000,000.
Mr. [Malcolm C.] Tarver [of Georgia]: Mr. Chairman, I submit a
point of order against the amendment proposed by the gentleman from
New York [Mr. Taber]. . . .
Mr. [John] Taber: . . . The bill, on page 75, provides that the
Secretary is authorized and directed to make such additional
commitments or incur such additional obligations as may be
necessary in order to provide for full parity payments.
That is legislation. It is brought in order under the rule. The
language that I have submitted is clearly germane to that provision
because it provides a method. It is purely a limitation to the
payments that shall be made for parity under the authority of this
paragraph. For this reason it is clearly germane and it is clearly
in order.
It would be in order if there was no legislation in the
paragraph because it is a pure limitation.
Mr. [Francis H.] Case of South Dakota: Mr. Chairman, may I be
heard?
The Chairman: (17) The Chair will hear the gentleman
from South Dakota.
---------------------------------------------------------------------------
17. Robert Ramspeck (Ga.).
---------------------------------------------------------------------------
Mr. Case of South Dakota: Mr. Chairman, may I make the
observation that if the proposal is clearly a limitation, even
though it embraces some legislation, it is in order under the
Holman rule.
The Chairman: The Chair would like to ask the gentleman from
New York [Mr. Taber] if there are any funds other than those
appropriated in this bill to be used for parity payments?
Mr. Taber: None.
The Chairman: Just the funds in this bill?
Mr. Taber: That is correct.
The Chairman: The amendment the gentleman is offering is to
limit the funds offered in this bill?
Mr. Taber: That is my intention. I think perhaps I ought to
insert after the word ``payments'' in the third line
[[Page 5872]]
the words ``under the authority of this paragraph.'' With that in,
it would clearly be in order.
The Chairman: Does the gentleman from New York [Mr. Taber] ask
to modify his amendment?
Mr. Taber: I do, Mr. Chairman.
The Chairman: The gentleman from New York asks unanimous
consent to modify his amendment by inserting after the word
``payments'' ``under the authority of this paragraph.'' Is there
objection to the request of the gentleman from New York [Mr.
Taber]?
There was no objection.
The Chairman: The gentleman from New York [Mr. Taber] has
offered an amendment, on page 77, line 5, undertaking to provide
further limitations on the payment and the administration of parity
payments, to which the gentleman from Georgia has made a point of
order.
It seems to the Chair that the language of the amendment
offered by the gentleman from New York constitutes a limitation
upon the funds appropriated by this paragraph or proposed to be
appropriated by this paragraph and does not constitute legislation.
The Chair therefore overrules the point of order.
Secretary of the Interior--Contracts to Acquire Land Before
Appropriation Therefor
Sec. 37.8 Language in a general appropriation bill authorizing the
Secretary of the Interior to enter into contracts for the
acquisition of additional land and making future appropriations
available to liquidate those obligations was held legislation on an
appropriation bill and not in order.
On Mar. 1, 1938,(18) during consideration in the
Committee of the Whole of the Interior Department appropriation bill, a
point of order was raised against the following provision:
---------------------------------------------------------------------------
18. 83 Cong. Rec. 2636, 75th Cong. 3d Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
For the acquisition of lands, interest in lands, water
rights and surface rights to lands, and for expenses incident
to such acquisition, in accordance with the provisions of the
act of June 18, 1934 (48 Stat. 985), including personal
services, purchase of equipment and supplies, and other
necessary expenses, $500,000, together with the unexpended
balance of the appropriation for this purpose for the fiscal
year 1938, of which not to exceed $20,000 shall be available
for personal services in the District of Columbia: Provided,
That within the States of Arizona, Colorado, New Mexico, and
Wyoming no part of said sum shall be used for the acquisition
of land outside of the boundaries of existing Indian
reservations: Provided further, That in addition to the amount
herein appropriated the Secretary of the Interior may also
incur obligations and enter into contracts for the acquisition
of additional land, not exceeding a total of $500,000, and his
action in so doing shall be deemed a contractual obligation of
the Federal Government for the payment of the cost thereof, and
appropriations hereafter made for the acquisition of land
pursuant to the au
[[Page 5873]]
thorization contained in the act of June 18, 1934, shall be
available for the purpose of discharging the obligation or
obligations so created.
Mr. [John] Taber [of New York]: Mr. Chairman, I make the point
of order against the language contained in the proviso on page 24,
line 23, on the ground that it is legislation on an appropriation
bill and is not authorized by law. . . .
The Chairman: (19) The Chair is ready to rule.
---------------------------------------------------------------------------
19. Marvin Jones (Tex.).
---------------------------------------------------------------------------
This proviso, beginning in line 23, on page 24, and extending
through line 8, on page 25, authorizes the Secretary of the
Interior to incur obligations and to enter into contracts for the
acquisition of additional land not exceeding a total of $500,000.
Practically the same language was ruled upon last year when the
Interior Department bill was before the Committee of the Whole and
the bill contained a similar proviso. This proviso at that time was
held to be subject to the point of order that it was legislation on
an appropriation bill.
The Chair, therefore, sustains the point of order to this
proviso.
-- Authority to Incur Obligations and Complete Construction
Sec. 37.9 To an appropriation bill an amendment authorizing the
Secretary of the Interior to incur obligations and enter into
contracts for certain construction work was held to be legislation.
On Apr. 6, 1954,(20) during consideration in the
Committee of the Whole of the Interior Department appropriation bill
(H.R. 8680), a point of order was raised against the following
amendment:
---------------------------------------------------------------------------
20. 100 Cong. Rec. 4721, 4722, 83d Cong. 2d Sess.
---------------------------------------------------------------------------
Mr. [Antonio M.] Fernandez [of New Mexico]: Mr. Chairman, I
offer an amendment which is at the desk.
The Clerk read as follows:
Amendment offered by Mr. Fernandez: On page 24, line 21,
strike out ``$8,056,099'' and insert ``$8,556,099 and, in
addition, the Secretary is hereby authorized to incur
obligations and enter into contracts, not exceeding $950,000,
to complete the construction of a public-use building and
appurtenant facilities in Carlsbad Cavern National Park, N.
Mex.''
Mr. [Ben F.] Jensen [of Iowa]: Mr. Chairman, I make a point of
order against the amendment: That it is legislation on an
appropriation bill. . . .
The Chairman: (1) The Chair is ready to rule.
---------------------------------------------------------------------------
1. Charles B. Hoeven (Iowa).
---------------------------------------------------------------------------
The Chair calls the attention of the gentleman from New Mexico
to the following language in his proposed amendment: ``and, in
addition, the Secretary is hereby authorized to incur obligations
and enter into contracts, not exceeding $950,000 to complete the
construction of a public use building and appurtenant facilities in
Carlsbad Caverns National Park, N. Mex.,'' which is clearly
legislation upon an appropriation bill.
The Chair sustains the point of order.
[[Page 5874]]
--Limitation on Funds to Pay Contract Approved Pursuant to Law
Sec. 37.10 An appropriation in the Interior Department appropriation
bill for the payment of an Indian agent employed under a contract
approved by the Secretary was held to be authorized by the Snyder
Act and to be merely descriptive of contract authority contained in
existing law and therefore not legislative in character.
On May 14, 1937,(2) the Committee of the Whole was
considering H.R. 6958. At one point the Clerk read as follows, and
proceedings ensued as indicated below:
---------------------------------------------------------------------------
2. 81 Cong. Rec. 4605, 75th Cong. 1st Sess.
---------------------------------------------------------------------------
Utah: Uintah and Ouray, $7,100, of which amount not to exceed
$3,000 shall be available for the payment of an agent employed
under a contract, approved by the Secretary of the Interior.
Mr. [Richard B.] Wigglesworth [of Massachusetts]: Mr. Chairman,
I make the point of order on the paragraph beginning in line 11 and
ending in line 14 of page 57 that there is no authorization in law
for the appropriation recommended. . . .
The Chairman: (3) The Chair is prepared to rule.
---------------------------------------------------------------------------
3. Jere Cooper (Tenn.).
---------------------------------------------------------------------------
The gentleman from Massachusetts [Mr. Wigglesworth] makes a
point of order against the language appearing on page 57, lines 11
to 14, inclusive, on the ground it is legislation on an
appropriation bill and not authorized by existing law.
The Chair has examined the statement in the hearings to which
the gentleman from Massachusetts has invited attention, and
especially is impressed by the following statement contained in the
hearings:
The contract was approved on March 2, 1937, by the
Commissioner of Indian Affairs and the Secretary of the
Interior in accordance with sections 2103 and 2106 of the
Revised Statutes of the United States.
This would clearly indicate to the Chair that the law to which
reference is here made would be authority for the contract. It
appears that the contract was made and the discharge of the duty
entered upon under the provisions of the contract.
Attention is also invited again to the so-called Snyder Act
which, among other things, provides for the employment of
inspectors, supervisors, superintendents, clerks, field matrons,
farmers, physicians, Indian police, Indian judges, and other
employees. The language of the bill to which the point of order is
directed provides for the sum of $7,100, of which amount not to
exceed $3,000 shall be available for the payment of an agent
employed under a contract approved by the Secretary of the
Interior.
The Chair is of the opinion that this provision is clearly
within the scope of existing law to which attention has been
invited, and therefore is not legislation on an appropriation bill
in viola
[[Page 5875]]
tion of the rules of the House. The Chair overrules the point of
order.
--Granting Authority to Compromise Claims and Negotiate Health
Contracts for Employees
Sec. 37.11 Language in a general appropriation bill providing in part
an appropriation for payment of damages caused to the owners of
lands by reason of the operations of the United States in the
construction of irrigation works which may be ``compromised by
agreement between the claimants and the Secretary of the Interior,
or such officers as he may designate,'' was held to constitute
legislation.
On Mar. 1, 1938,(4) the Committee of the Whole was
considering H.R. 9621, an Interior Department appropriation. At one
point, points of order were directed to portions of the following
paragraph:
---------------------------------------------------------------------------
4. 83 Cong. Rec. 2655, 75th Cong. 3d Sess.
---------------------------------------------------------------------------
Administrative provisions and limitations: For all expenditures
authorized by the act of June 17, 1902, and acts amendatory thereof
or supplementary thereto, known as the reclamation law, and all
other acts under which expenditures from said fund are authorized,
including . . . payment of damages caused to the owners of lands or
other private property of any kind by reason of the operations of
the United States, its officers or employees, in the survey,
construction, operation, or maintenance of irrigation works, and
which may be compromised by agreement between claimant and the
Secretary of the Interior, or such officers as he may designate . .
. Provided, That the Secretary of the Interior in his
administration of the Bureau of Reclamation is authorized to
contract for medical attention and service for employees and to
make necessary pay-roll deductions agreed to by the employees
therefor. . . .
Mr. [John] Taber [of New York]: Mr. Chairman, I make the point
of order against the paragraph that it is legislation on an
appropriation bill and contains items not authorized by law.
I call the attention of the Chair to the language on page 72,
line 22, ``examination of estimates for appropriations in the
field,'' and at the bottom of the page, ``for lithographing,
engraving, printing, and binding,'' and in line 20 of the same
page, ``for photographing and making photographic prints,'' and
then at the top of page 73, ``purchase of rubber boots for official
use by employees,'' and in the middle of the page, at line 12,
``and which may be compromised by agreement between the claimant
and the Secretary of the Interior or such officers as he may
designate,'' giving him authority to do things that the law does
not authorize. . . .
The Chairman: (5) The Chair is of opinion that the
paragraph is subject
[[Page 5876]]
to the point of order for two reasons. First, page 73, line 12,
after the word ``works'', the language--
---------------------------------------------------------------------------
5. Marvin Jones (Tex.).
---------------------------------------------------------------------------
and which may be compromised by agreement between the claimant
and the Secretary of the Interior, or such officers as he may
designate.
Then, going down to the last line on page 73, after the colon,
the language:
Provided, That the Secretary of the Interior in his
administration of the Bureau of Reclamation is authorized to
contract for medical attention and services for employees and
to make necessary pay-roll deductions agreed to by the
employees therefor.
For these reasons the Chair sustains the point of order.
Institute for Inter-American Affairs; Contract Authority
Sec. 37.12 Language in a general appropriation bill authorizing the
Institute of Inter-American Affairs, prior to June 30, 1953, to
enter into contracts for the purposes of the Institute for Inter-
American Affairs Act in an amount not to exceed $7 million was
conceded to be legislation on an appropriation bill and was ruled
out absent citation to the existing law authorizing inclusion of
such limitation on contract authority in appropriation acts.
On Apr. 20, 1950,(6) during consideration in the
Committee of the Whole of a general appropriation bill (H.R. 7786), a
point of order was raised against the following provision:
---------------------------------------------------------------------------
6. 96 Cong. Rec. 5480, 81st Cong. 2d Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
The Institute of Inter-American Affairs
For necessary expenses in carrying out the provisions of
the Institute of Inter-American Affairs Act of August 5, 1947
[61 Stat. 780] as amended by the act of September 3, 1949
(Public Law 283), including purchase (not to exceed 18 for
replacement only) and hire of passenger motor vehicles,
$5,500,000, to remain available until expended; and in
addition, the Institute is authorized, prior to June 30, 1953,
to enter into contracts for the purposes of such act, as
amended, in an amount not to exceed $7,000,000.
Mr. [John] Taber [of New York]: Mr. Chairman, I make the point
of order against the language beginning on line 1, page 46, ``and
in addition, the Institute is authorized, prior to June 30, 1953,
to enter into contracts for the purposes of such act, as amended,
in an amount not to exceed $7,000,000,'' on the ground that it is
legislation on an appropriation bill.
The Chairman: (7) Does the gentleman from New York
[Mr. Rooney] desire to be heard on the point of order?
---------------------------------------------------------------------------
7. Jere Cooper (Tenn.).
---------------------------------------------------------------------------
Mr. [John J.] Rooney: Mr. Chairman, I regret that the gentleman
from New York [Mr. Taber] made the point
[[Page 5877]]
of order against the language beginning in line 1, page 46.
However, there is nothing that the Committee can do about it,
because I feel that the Chair must sustain his point of order.
However, there will be nothing gained insofar as economy is
concerned, because this amount will be added to the bill either in
cash or in contract authority when it gets to the Senate.
The Chairman: The Chair is prepared to rule.
The gentleman from New York [Mr. Taber] makes the point of
order against the language quoted by him, and the gentleman from
New York [Mr. Rooney] concedes the point of order; therefore, the
Chair sustains the point of order.(8)
---------------------------------------------------------------------------
8. Note: Pub. L. No. 81-283 gave the Institute authority within the
limits of funds approved or specific contract authorizations
thereinafter granted, to make contracts for periods not to
exceed five years. The inclusion of contract authority in an
appropriation bill would probably be allowed today, given such
a provision in an authorization bill.
---------------------------------------------------------------------------
Authority to Contract Without Advertising
Sec. 37.13 While 41 USC Sec. 5 provides that ``unless otherwise
provided in the appropriation concerned or other law, purchases and
contracts for supplies or services for the Government may be made
or entered into only after advertising a sufficient time previously
for proposals'', language in a general appropriation bill
authorizing the Congressional Budget Office to contract without
regard to that provision was held to constitute legislation in
violation of Rule XXI clause 2, based upon a prior ruling of the
Chair and also upon the language of the statute itself permitting
an appropriation or other law, but not a bill, to waive its
provisions.
On Nov. 13, 1975,(9) during consideration in the
Committee of the Whole of H.R. 10647 (a supplemental appropriation
bill), a point of order was sustained against the following provision:
---------------------------------------------------------------------------
9. 121 Cong. Rec. 36271, 94th Cong. 1st Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
For salaries and expenses necessary to carry out the
provisions of the Congressional Budget Act of 1974 (Public Law
93-344), $4,736,340: Provided, That none of these funds shall
be available for the purchase or hire of a passenger motor
vehicle: Provided further, That the Congressional Budget Office
shall have the authority to contract without regard to the
provisions of 41 U.S.C. 5. . . .
Mr. [Robert E.] Bauman [of Maryland]: Mr. Chairman, I make a
point of order against the language appearing on page 10, lines 20
through 22 which read:
Provided further, That the Congressional Budget Office
shall have
[[Page 5878]]
the authority to contract without regard to the provisions of
41 U.S.C. 5.
Mr. Chairman, 41 United States Code 5 is a statutory
requirement that requires all governmental agencies, in excess of
$10,000 to publish and seek bids on the contract or purchase of
goods and services. I submit that this is a statutory waiver
written into an appropriation bill and is therefore legislation on
an appropriation. . . .
Mr. [Bob] Casey [of Texas]: . . . Mr. Chairman, with reference
to the point of order raised by the gentleman from Maryland (Mr.
Bauman) let me state that unless this language is in this bill this
agency cannot contract for computer services. I think it is
entirely in order for the purposes of carrying out the duties of
the office. It is not requiring any additional effort on anybody
else's part. In other words, it is not legislation as I consider it
at all. It is existing law, and it requires this language in order
for them to contract for services that they must have in the
operation of their office.
The Chairman: (10) The Chair is prepared to rule.
---------------------------------------------------------------------------
10. William L. Hungate (Mo.).
---------------------------------------------------------------------------
The Chair perceives that the gentleman from Maryland (Mr.
Bauman) has made a point of order as to the language appearing in
lines 20 through 22 on page 10 beginning with the words ``Provided
further.'' The same issue was before the committee and decided in
1940, on February 7--Record pages H1192-H1193--where Chairman Beam
held that--
The language in a general appropriation bill which says
``without regard to the Classification Act of 1923, as amended,
and without regard to Section 3709, revised statutes, 41 U.S.C.
5,'' is legislation and is not in order on appropriation bill.
Accordingly, the point of order is sustained and the proviso
will be stricken.
Environmental Protection Agency; Contract Authority for Review by
National Academy of Sciences
Sec. 37.14 A paragraph in a general appropriation bill containing funds
to enable the Environmental Protection Agency to contract with the
National Academy of Sciences to evaluate the performance of the EPA
was conceded to contain new contract authority not in existing law
and to violate Rule XXI clause 2.
On June 15, 1973,(11) during consideration in the
Committee of the Whole of H.R. 8619 (the agriculture-environmental and
con- sumer protection appropriation bill) a point of order was raised
against the following provision:
---------------------------------------------------------------------------
11. 119 Cong. Rec. 19852, 93d Cong. 1st Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
For an amount to provide for a complete and thorough
review, analysis, and evaluation of the Environmental
Protection Agency, its programs, its accomplishments and its
[[Page 5879]]
failures, and to recommend such changes, cancellations, or
additions as necessary, to be conducted under contract with the
National Academy of Sciences, $5,000,000, to remain available
until expended.
Mr. [John D.] Dingell [of Michigan]: Mr. Chairman, at this
point I make a point of order against the language appearing at
lines 20 through 24 on page 32, and on through the first two lines
of page 33.
The reason for my point of order, Mr. Chairman, is twofold.
First, this is legislation in an appropriation bill; and it
constitutes an appropriation of funds not previously authorized by
law.
So that the language referred to is again violative of rule
XXI, clause 2, and I would point out again, Mr. Chairman, that the
rule should be so interpreted as to require strict compliance.
Mr. Chairman, I am quoting from page 466 of the Manual of the
Rules of the House of Representatives, as follows:
In the administration of the rule, it is the practice that
those upholding an item of appropriation should have the burden
of showing the law authorizing it.
Mr. Chairman, I would point out that neither the statute
setting up the National Academy of Sciences affords the National
Academy of Sciences the duty, responsibility, or power to
investigate or to study EPA. For that reason, Mr. Chairman, I make
this point of order.
Mr. [Sidney R.] Yates [of Illinois]: Mr. Chairman, I make the
additional point of order that the language in the paragraph
appearing at the top of page 33, containing the words, ``to remain
available until expended,'' is also subject to a point of order. .
. .
The Chairman: (12) Does the Chair understand that
the gentleman from Mississippi concedes the point of order?
---------------------------------------------------------------------------
12. James C. Wright, Jr. (Tex.).
---------------------------------------------------------------------------
Mr. [Jamie L.] Whitten [of Mississippi]: I do. And I beg the
indulgence of the Chair that we may write an amendment to replace
the section. . . .
The Chairman: The point of order is sustained, and the language
is stricken.
CHAPTER 26
Unauthorized Appropriations; Legislation on Appropriation Bills
C. PROVISIONS AS ``CHANGING EXISTING LAW,'' GENERALLY
Sec. 38. Reimbursements
As used in this section, the term ``reimbursements'' refers to the
use of generated proceeds to repay funds.(13) This section
also addresses the consequences of provisions requiring repayments,
refunds and other mechanisms generating funds from other than direct
appropriations.
---------------------------------------------------------------------------
13. See also Sec. 30 (Transfer of Funds Not Limited to Same Bill),
supra. And see Ch. 25 Sec. 3, supra, for discussion of
reappropriations. -------------------
---------------------------------------------------------------------------
Refunds Credited to Current Appropriation
Sec. 38.1 Language in an appropriation bill for emergencies arising in
the Diplomatic and
[[Page 5880]]
Consular Service providing that ``all refunds, repayments, or other
credits on account of funds disbursed under this head shall be
credited to the appropriation for this purpose current at the time
obligations are incurred or such amounts are received'' was
conceded and held to be legislation on an appropriation bill and
not in order.
On Mar. 15, 1945,(14) during consideration in the
Committee of the Whole of a general appropriation bill (H.R. 2603), a
point of order was raised against the following provision:
---------------------------------------------------------------------------
14. 91 Cong. Rec. 2305, 79th Cong. 1st Sess.
---------------------------------------------------------------------------
Emergencies arising in the Diplomatic and Consular Service: To
enable the President to meet unforeseen emergencies arising in the
Diplomatic and Consular Service, to be expended pursuant to the
requirement of section 291 of the Revised Statutes (31 U.S.C. 107),
$16,000,000, of which not to exceed $25,000 shall, in the
discretion of the President, be available for personal services in
the District of Columbia: Provided, That all refunds, repayments,
or other credits on account of funds disbursed under this head
shall be credited to the appropriation for this purpose current at
the time obligations are incurred or such amounts are received.
Mr. [Joseph P.] O'Hara [of Minnesota]: Mr. Chairman, I make the
point of order against the language contained in the paragraph,
beginning in line 11--
That all refunds, repayments, or other credits on account
of funds disbursed under this head shall be credited to the
appropriation for this purpose current at the time obligations
are incurred or such amounts are received--
That it is legislation on an appropriation bill.
Mr. [Louis C.] Rabaut [of Michigan]: Mr. Chairman, I concede
the point of order.
The Chairman: (15) The point of order is sustained.
---------------------------------------------------------------------------
15. Wilbur D. Mills (Ark.).
---------------------------------------------------------------------------
Crediting Proceeds From Sales
Sec. 38.2 A provision in a general appropriation bill that
appropriations contained in the Act may be reimbursed, from the
proceeds of sales of certain material and supplies, for
expenditures incident to such sales, was conceded and held to be
legislation on an appropriation bill and not in order.
On Mar. 29, 1938,(16) during consideration in the
Committee of the Whole of the military appropriation bill (H.R. 9995),
a point of order was raised against the following provision:
---------------------------------------------------------------------------
16. 83 Cong. Rec. 4315, 4316, 75th Cong. 3d Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
[[Page 5881]]
Sec. 4. Appropriations contained in this act may be
reimbursed from the proceeds of sales of old material,
condemned stores, supplies, or other property of any kind on
account of expenditures from such appropriations incident to
the handling, preparation for sale, sale, and disposition of
such property.
Mr. [J. William] Ditter [of Pennsylvania]: Mr. Chairman, I make
the point of order against the section that it is legislation on an
appropriation bill. If the chairman of the subcommittee requests me
to withhold the point of order so that he may explain to the House
the justification which he or his committee has for including this
section in the bill I shall withhold the point of order for the
time being. . . .
Mr. [J. Buell] Snyder of Pennsylvania: Mr. Chairman, I concede
the point of order is well taken.
The Chairman: (17) The gentleman from Pennsylvania
concedes the point of order to be well taken that this is
legislation on an appropriation bill. The point of order is
sustained.
---------------------------------------------------------------------------
17. Luther A. Johnson (Tex.).
---------------------------------------------------------------------------
Sec. 38.3 Language in an appropriation bill for maintenance and
operation of air-navigation facilities, for the purchase of food
and other subsistence supplies for resale to employees ``the
proceeds from such resales to be credited to the appropriation from
which the expenditure for such supplies was made'' was conceded and
held to be legislation on an appropriation bill and not in order.
On Mar. 16, 1945,(18) during consideration in the
Committee of the Whole of a general appropriation bill (H.R. 2603), a
point of order was raised against the following provision:
---------------------------------------------------------------------------
18. 91 Cong. Rec. 2376, 79th Cong. 1st Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
The appropriations ``Maintenance and operation of air-
navigation facilities,'' Office of Administrator of Civil
Aeronautics; ``Salaries and expenses,'' Civil Aeronautics
Board; and ``Salaries and expenses,'' Weather Bureau, shall be
available, under regulations to be prescribed by the Secretary,
for furnishing to employees of the Civil Aeronautics
Administration, the Civil Aeronautics Board, and the Weather
Bureau in Alaska free emergency medical services by contract or
otherwise and medical supplies, and for the purchase,
transportation, and storage of food and other subsistence
supplies for resale to such employees, [the proceeds from such
resales to be credited to the appropriation from which the
expenditure for such supplies was made;] and appropriations of
the Civil Aeronautics Administration and the Weather Bureau,
available for travel, shall be available for the travel
expenses of appointees of said agencies from the point of
engagement in the United States to their posts of duty at any
point outside the continental limits of the United States or in
Alaska.
Mr. [Robert F.] Jones [of Ohio]: Mr. Chairman, a point of
order. On page 75, line 3, the last word ``the'', all of line 4 and
all of line 5. It is legislation on an appropriation bill and in
violation of law.
[[Page 5882]]
Mr. [Louis C.] Rabaut [of Michigan]: Mr. Chairman, we concede
the point of order.
The Chairman: (19) The point of order is sustained.
---------------------------------------------------------------------------
19. Wilbur D. Mills (Ark.).
---------------------------------------------------------------------------
Commissary Revenue
Sec. 38.4 Language in a general appropriation bill providing that any
part of the appropriation for salaries and expenses, penal and
correctional institutions, shall be reimbursed from commissary
earnings was conceded and held to be legislation on an
appropriation bill and not in order.
On Mar. 16, 1945,(20) during consideration in the
Committee of the Whole of a general appropriation bill (H.R. 2603), a
point of order was raised against the following provision:
---------------------------------------------------------------------------
20. 91 Cong. Rec. 2366, 79th Cong. 1st Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
Salaries and expenses, penal and correctional institutions:
. . . $13,300,000: Provided, That any part of the
appropriations under this heading used for payment of salaries
of personnel employed in the operation of prison commissaries
shall be reimbursed from commissary earnings, and such
reimbursement shall be in addition to the amounts appropriated
herein. . . .
Mr. [Robert F.] Rich [of Pennsylvania]: Mr. Chairman, I make
the point of order against the language on page 51, beginning with
``Provided'', in line 15. . . .
Mr. [Louis C.] Rabaut [of Michigan]: We concede the point of
order, Mr. Chairman.
The Chairman: (1) The point of order is sustained.
---------------------------------------------------------------------------
1. Wilbur D. Mills (Ark.).
---------------------------------------------------------------------------
Sec. 38.5 Language in an appropriation bill for contingent expenses,
foreign service, providing that ``reimbursements incident to the
maintenance of commissary service authorized . . . shall be
credited to the appropriation for this purpose current at the time
obligations are incurred or such amounts are received,'' was
conceded and held to be legislation on an appropriation bill and
not in order.
On Mar. 15, 1945,(2) during consideration in the
Committee of the Whole of a general appropriation bill (H.R. 2603), a
point of order was raised against the following provision:
---------------------------------------------------------------------------
2. 91 Cong. Rec. 2304, 79th Cong. 1st Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
Contingent expenses, Foreign Service: For stationery;
blanks, record and other books; seals, presses, flags; signs;
military equipment and supplies; repairs, alterations,
preservation, and maintenance of
[[Page 5883]]
Government-owned and leased diplomatic and consular properties
in foreign countries. . . . Provided further, That
reimbursements incident to the maintenance of commissary
service authorized under this head shall be credited to the
appropriation for this purpose current at the time obligations
are incurred or such amounts are received.
Mr. [Joseph P.] O'Hara [of Minnesota]: Mr. Chairman, I make a
point of order against the language in the proviso beginning on
line 25, page 15, including all of lines 1, 2, 3, and 4 on page 16,
on the ground that it is legislation on an appropriation bill.
Mr. [Louis C.] Rabaut [of Michigan]: Mr. Chairman, we concede
the point of order.
The Chairman: (3) The point of order is sustained.
---------------------------------------------------------------------------
3. Wilbur D. Mills (Ark.).
---------------------------------------------------------------------------
Available for Administrative Expenses
Sec. 38.6 A provision in an appropriation bill making appropriations
for the United States Housing Authority and providing ``not to
exceed $1,500,000 shall be available for such expenses incurred at
the site and in connection with the construction of the United
States Housing Authority non-Federal projects and shall be
reimbursed in the discretion of the Administrator by the public
housing agencies constructing such projects and such reimbursements
shall be available for administrative expenses of the Authority,''
was conceded and held to be legislation and not in order on an
appropriation bill.
On Mar. 15, 1939,(4) during consideration in the
Committee of the Whole of the Interior Department appropriation bill
(H.R. 4852), the following proceedings took place:
---------------------------------------------------------------------------
4. 84 Cong. Rec. 2780, 76th Cong. 1st Sess.
---------------------------------------------------------------------------
United States Housing Authority
Salaries and expenses . . . Provided, That of the $4,500,000
hereby made available for administrative expenses of the Authority,
not to exceed $1,500,000 shall be available for such expenses
incurred at the site and in connection with the construction of the
United States Housing Authority non-Federal projects and shall be
reimbursed in the discretion of the Administrator by the public
housing agencies constructing such projects and such reimbursements
shall be available for administrative expenses of the Authority: .
. .
Mr. [Dudley A.] White of Ohio: Mr. Chairman, a point of order.
The Chairman: (5) The gentleman will state it.
---------------------------------------------------------------------------
5. Frank H. Buck (Calif.).
---------------------------------------------------------------------------
Mr. White of Ohio: . . . Then the language beginning in line
13, on page 14, the entire clause, which reads:
Provided, That of the $4,500,000 hereby made available for
adminis
[[Page 5884]]
trative expenses of the Authority, not to exceed $1,500,000
shall be available for such expenses incurred at the site, and
in connection with the construction, of the United States
Housing Authority non-Federal projects, and shall be
reimbursed, in the discretion of the Administrator, by the
public housing agencies constructing such projects, and such
reimbursements shall be available for administrative expenses
of the Authority.
That is a delegation of authority. It enlarges the scope of the
existing authority under the original law, and therefore the entire
paragraph should be stricken out on these points of order. This is
legislation on an appropriation bill.
The Chairman: Does the gentleman from Oklahoma [Mr. Johnson]
desire to be heard?
Mr. [Jed] Johnson of Oklahoma: Mr. Chairman, we concede the
points of order.
The Chairman: The points of order are sustained.
Waiver of Reimbursement Requirements in Law
Sec. 38.7 Provisions in a paragraph of a general appropriation bill (1)
authorizing the General Services Administration to acquire
leasehold interests in property; (2) removing limitations imposed
by law on the value of surplus strategic materials which may be
transferred without reimbursement to the national stockpile; and
(3) authorizing materials in certain stockpiles and inventories to
be available without reimbursement for transfer to contractors as
payment for expenses, were conceded to be legislation and were
stricken from the bill.
On Aug. 1, 1973,(6) during consideration in the
Committee of the Whole of a general appropriation bill (H.R. 9590), a
point of order was raised against the following provision:
---------------------------------------------------------------------------
6. 119 Cong. Rec. 27288, 27289, 93d Cong. 1st Sess.
---------------------------------------------------------------------------
Property Management and Disposal Service
operating expenses
For expenses, not otherwise provided for, necessary for
carrying out the functions of the Administrator with respect to the
utilization of excess property; the disposal of surplus property;
the rehabilitation of personal property; the appraisal of real and
personal property; the national stockpile established by the
Strategic and Critical Materials Stock Piling Act (50 U.S.C. 98-
98h); the supplemental stockpile established by section 104(b) of
the Agricultural Trade Development and Assistance Act of 1954 (68
Stat. 456, as amended by 73 Stat. 607); including services as
authorized by 5 U.S.C. 3109 and reimbursement for security guard
services, $33,000,000, to be derived from proceeds from transfers
of excess property, disposal of surplus property, and sales of
stockpile mate
[[Page 5885]]
rials: [Provided, That during the current fiscal year the General
Services Administration is authorized to acquire leasehold
interests in property, for periods not in excess of twenty years,
for the storage, security, and maintenance of strategic, critical,
and other materials in the national and supplemental stockpiles
provided said leasehold interests are at nominal cost to the
Government: Provided further, That during the current fiscal year
there shall be no limitation on the value of surplus strategic and
critical materials which, in accordance with section 6 of the
Strategic and Critical Materials Stock Piling Act (50 U.S.C. 98e),
may be transferred without reimbursement to the national
stockpile:] Provided further, That during the current fiscal year
materials in the inventory maintained under the Defense Production
Act of 1950, as amended (50 U.S.C. App. 2061-2166), and excess
materials in the national stockpile and the supplemental stockpile,
the disposition of which is authorized by law, shall be available,
without reimbursement, for transfer at fair market value to
contractors as payment for expenses (including transportation and
other accessorial expenses) of acquisition of materials, or of
refining, processing, or otherwise beneficiating materials, or of
rotating materials, pursuant to section 3 of the Strategic and
Critical Materials Stock Piling Act (50 U.S.C. 98b), and of
processing and refining materials pursuant to section 303(d) of the
Defense Production Act of 1950, as amended (50 U.S.C. App.
2093(d)): Provided further, That none of the funds available under
this heading shall be available for transfer to any other account
nor for the funding of any activities other than those specifically
authorized under this heading.(7)
---------------------------------------------------------------------------
7. This last proviso was deemed a proper limitation.
---------------------------------------------------------------------------
Mr. [John D.] Dingell [of Michigan]: Mr. Chairman, a point of
order.
The Chairman: (8) The gentleman will state it.
---------------------------------------------------------------------------
8. Richard Bolling (Mo.).
---------------------------------------------------------------------------
Mr. Dingell: Mr. Chairman, I rise again out of diligence to
protect myself as to points of order.
At page 22, the first point of order is as to the words
following the word ``Provided'' on page 22, line 6, down through
the semicolon following the word ``Government'' at page 22, line
12.
I make the point of order, Mr. Chairman, together with another
point of order on the same rule beginning with the words,
``Provided further'' down through the word ``stockpile,'' at page
22, line 18, in that both of these provisos are violative of rule
XXI, clause 2, and constitute legislation in an appropriation bill.
The Chairman: Does the gentleman from Oklahoma desire to be
heard on the point of order?
Mr. [Thomas J.] Steed [of Oklahoma]: Mr. Chairman, on the
second point of order, I believe the gentleman does not intend to
stop on line 22, does he? I believe he would have to go on to the
end of the proviso.
Mr. Dingell: I intend to get the next proviso as soon as we
dispose of these points of order.
Mr. Steed: The gentleman stopped in the middle of a proviso.
Mr. Dingell: I am going to get the ``Provided further,'' next.
Mr. Steed: There is no ``Provided further,'' next. This stops
with the ``supplemental stockpile'' in line 22.
[[Page 5886]]
Mr. Dingell: In order, Mr. Chairman, to assist my good friend
from Oklahoma, I will make another point of order against the
language beginning on page 22, line 18, with ``Provided further,''
down through the conclusion of that ``Provided further,'' on page
23, line 7; and then I will make a further point of order against
the ``Provided further,'' language on page 23, line 7, down through
the end of line 10 on page 23; in that all of these provisos and
``Provided furthers'' do constitute violations of rule XXI, clause
2, and constitute legislation in an appropriation bill violation of
the rules.
I again cite the requirement of the rules as set forth in the
House rules, that the burden of establishing the soundness of an
appropriation is upon the committee which offers it to the House,
and I point out that that burden cannot be borne, and that these
are violative of the rules, constituting legislation in an
appropriation bill.
The Chairman: Does the gentleman from Oklahoma desire to be
heard on the point of order?
Mr. Steed: Mr. Chairman, we concede the point of order.
The Chairman: The point of order is conceded, and the point of
order is sustained, and the language beginning with the word
``Provided'' on line 6, page 22, down through line 10, on page 23,
ending with ``this heading'' is stricken.
Mr. Steed: Mr. Chairman, the proviso was one starting on page
22 and going down to the word ``stockpile'' on line 18. That was
the point of order made, against that language.
Mr. Dingell: Mr. Chairman, I beg to differ.
The Chairman: The Chair believes the gentleman from Michigan
made a point of order against the language in that proviso, the
language in the second proviso of ``Provided further,'' and in the
third proviso, beginning on line 18, ``Provided further,'' and then
another ``Provided further,'' beginning on line 7, page 23.
In other words, the Chair was under the impression that the
gentleman made points of order against all the provisions beginning
with ``Provided,'' on page 22, line 6, through page 23, line 10.
Mr. Dingell: The Chair is correct.
The Chairman: Which would have the effect of striking all the
language the Chair just described?
Mr. Steed: Mr. Chairman, the points of order made against the
language are conceded down to line 7, page 23, but the language of
that ``Provided further,'' is a simple limitation on an
appropriation bill and is not subject to a point of order.
The Chairman: The Chair agrees with the gentleman from
Oklahoma.
The various points of order that are conceded are sustained,
and that language is stricken. The language:
Provided further, That none of the funds available under
this heading shall be available for transfer to any other
account nor for the funding of any activities other than those
specifically authorized under this heading.
Which is a proper limitation and appears beginning in line 7, page
23, through line 10, remains in the bill, since the point of order
has not been made against the entire paragraph.
[[Page 5887]]
Waived for Lands Not Producing Revenue
Sec. 38.8 A proposition in a general appropriation bill providing that
reimbursement shall not be required for expenditures in connection
with Indian lands for which no production or compensatory royalty
accrues, or for expenditures in excess of 10 percent of such
royalties accruing from mineral-lease operations within any
reservation or agency jurisdiction was conceded and held to be
legislation and not in order.
On Mar. 7, 1940,(9) during consideration in the
Committee of the Whole of the Interior Department appropriation bill
(H.R. 8745), the following point of order was raised:
---------------------------------------------------------------------------
9. 86 Cong. Rec. 2532, 76th Cong. 3d Sess.
---------------------------------------------------------------------------
Mr. [Jack] Nichols [of Oklahoma]: Mr. Chairman, I make a point
of order. On page 29, beginning with the last word on the page,
``to,'' I make a point of order against the following language:
to be reimbursed under the provisions of the Act of February
14, 1920, as amended (25 U.S.C. 413), except that reimbursement
shall not be required for expenditures in connection with
Indian lands for which no production or compensatory royalty
accrues, or for expenditures in excess of 10 percent of such
royalties accruing from mineral-lease operations within any
reservation or agency jurisdiction.
My point of order is that it is legislation on an appropriation
bill.
The Chairman: (10) Does the gentleman from Oklahoma
(Mr. Johnson) desire to be heard on the point of order?
---------------------------------------------------------------------------
10. Jere Cooper (Tenn.).
---------------------------------------------------------------------------
Mr. [Jed] Johnson of Oklahoma: Mr. Chairman, we concede the
point of order.
The Chairman: The point of order is sustained.
For Presidential Use Without Reimbursement to Appropriation Accounts
Sec. 38.9 An amendment to an appropriation bill providing that in
addition to the sum appropriated, supplies or funds shall be
available for disposition by the President under the Act of Mar.
11, 1941, to carry out the provisions of the Act of Mar. 28, 1944,
``without reimbursement of the appropriations from which such
supplies or services were procured or such funds were provided,''
was conceded and held to be legislation where that law did not
permit disposition without reimbursement.
[[Page 5888]]
On June 3, 1944,(11) during consideration in the
Committee of the Whole of a general appropriation bill (H.R. 4937), a
point of order was raised against the following amendment:
---------------------------------------------------------------------------
11. 90 Cong. Rec. 5252, 78th Cong. 2d Sess.
---------------------------------------------------------------------------
Mr. [Clarence] Cannon of Missouri: Mr. Chairman, I offer an
amendment.
The Clerk read as follows:
Amendment offered by Mr. Cannon of Missouri: Page 6, after
line 17, insert:
``Sec. 202. In addition to the sum appropriated by section
201 of this title, any supplies, services, or funds available
for disposition or expenditure by the President under the act
of March 11, 1941, as amended (22 U.S.C. 411-419), and acts
supplementary thereto, may be disposed of or expended by the
President to carry out the provisions of the act of March 28,
1944, without reimbursement of the appropriations from which
such supplies or services were procured or such funds were
provided.''
Mr. Cannon of Missouri: Mr. Chairman, I ask for a vote on the
amendment.
Mr. [Joseph P.] O'Hara [of Minnesota]: I desire to make a point
of order against the amendment offered by the gentleman from
Missouri [Mr. Cannon], because it is legislation on an
appropriation bill and not in order at this time. . . .
The Chairman: (12) The gentleman from Minnesota
makes a point of order against the amendment and particularly
emphasizes that the amendment provides that the appropriation is
``without reimbursement'' and that ``without reimbursement'' is not
contained in the statute.
---------------------------------------------------------------------------
12. William M. Whittington (Miss.).
---------------------------------------------------------------------------
The Chair will hear the gentleman from Missouri [Mr. Cannon].
Mr. Cannon of Missouri: Mr. Chairman, we concede the point of
order.
The Chairman: The point of order is sustained.
Receipts From Operations to Repay Federal Investment--District of
Columbia Airport
Sec. 38.10 Language in an appropriation bill providing for repayment of
federal appropriations for an additional airport for the District
of Columbia from income derived from operations was conceded and
held to be legislation and not in order.
On Aug. 6, 1957,(13) during consideration in the
Committee of the Whole of a supplemental appropriation bill (H.R.
9131), a point of order was raised against the following provision:
---------------------------------------------------------------------------
13. 103 Cong. Rec. 13780, 85th Cong. 1st Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
[[Page 5889]]
Chapter I
Department of Commerce
Civil Aeronautics Administration
Construction and Development, Additional Washington Airport
For necessary expenses for the construction and development
of a public airport in the vicinity of the District of
Columbia, as authorized by the act of September 7, 1950 (64
Stat. 770), including acquisition of land, $12,500,000, to
remain available until expended: Provided, That not to exceed a
total of $250,000 may be advanced to the applicable
appropriations of the Civil Aeronautics Administration for
necessary administrative expenses: Provided further, That
beginning on June 30, 1965, and not later than June 30 of each
year thereafter, the Administrator of the Civil Aeronautics
Administration shall pay from income derived from operation of
the airport an amount which will repay to the Treasury of the
United States the full capital investment from Federal
appropriations in a period of 35 years.
Mr. [Samuel N.] Friedel [of Maryland]: Mr. Chairman, a point of
order.
The Chairman: (14) The gentleman will state his
point of order.
---------------------------------------------------------------------------
14. Paul J. Kilday (Tex.).
---------------------------------------------------------------------------
Mr. Friedel: Mr. Chairman, I make a point of order against the
entire paragraph on page 2, lines 1 to 20 inclusive, on the ground
that the last proviso thereof contains legislation on an
appropriation bill. This proviso requires repayment of Federal
appropriations made for the airport, and in that respect amends the
basic law which authorized the airport.
The Chairman: Does the gentleman from Texas wish to be heard on
the point of order?
Mr. [Albert] Thomas [of Texas]: Mr. Chairman, it is, perhaps, a
close point, whether this comes under the Holman rule; but we
concede the point of order and offer an amendment.
The Chairman: The gentleman from Texas [Mr. Thomas] concedes
the point of order made by the gentleman from Maryland [Mr.
Friedel]. The Chair sustains the point of order.
--Receipts Generated From Irrigation Projects
Sec. 38.11 Language in a general appropriation bill providing that
money received by the United States in connection with any
irrigation project constructed by the federal government shall be
covered into the general fund until such fund has been reimbursed,
was conceded and held to be legislation on an appropriation bill
and not a Holman rule retrenchment of funds covered by the bill.
On Nov. 29, 1945,(15) during consideration in the
Committee of the Whole of the first deficiency appropriation bill (H.R.
4805), a point of order was raised against the following provision:
---------------------------------------------------------------------------
15. 91 Cong. Rec. 11192, 11193, 79th Cong. 1st Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
Total, general fund, construction, $42,765,000: Provided,
That all mon
[[Page 5890]]
eys hereafter received by the United States in connection with
any irrigation project, including the incidental power features
thereof, constructed by the Secretary of the Interior through
the Bureau of Reclamation, and financed in whole or in part
with moneys heretofore or hereafter appropriated or allocated
therefor by the Federal Government from the general fund, shall
be covered into the general fund until the general fund has
been reimbursed in full for allocations and appropriations made
to such project from the general fund, except in cases where
provision has been made by law or contract for the use of such
revenues for the benefit of users of water from such project:
Provided further, That the portion of appropriations or
allocations invested in the power features of such projects
shall be fully amortized and repaid within 50 years with
interest at the rate of 3 percent per annum.
Mr. (J. W.) Robinson of Utah: Mr. Chairman, I make the point of
order against the proviso commencing on page 30, line 15, and
continuing on page 31 down to the end of line 6 that it is
legislation on an appropriation bill.
Mr. [Clarence] Cannon of Missouri: Mr. Chairman, the committee
concedes the point of order. . . .
Mr. [John] Taber [of New York]: Mr. Chairman, I desire to be
heard on the point of order. It is manifest that this item requires
that funds received shall be covered into the general fund of the
Treasury until the general fund has been fully reimbursed for the
amount that it has expended. In my opinion that is in order under
the Holman rule. It saves money to the Treasury on the face of the
document.
The Chairman: (16) The Chair thinks it is clearly
legislation on an appropriation bill, and so holds. The point of
order is sustained.
---------------------------------------------------------------------------
16. R. Ewing Thomason (Tex.).
---------------------------------------------------------------------------
Parliamentarian's Note: To justify legislative language in an
appropriation bill under the Holman rule, the provision must show a
retrenchment as a necessary result; and if an amendment, must be
germane to the bill.
--Tennessee Valley Authority
Sec. 38.12 Language in an appropriation bill providing funds for
resource development activities of the Tennessee Valley Authority,
stating that part of the funds therefor should be derived from the
appropriated funds and part from proceeds of operation, was held to
be legislation and not in order.
On May 28, 1956,(17) during consideration in the
Committee of the Whole of the Department of the Interior appropriation
bill (H.R. 11319), the following point of order was raised:
---------------------------------------------------------------------------
17. 102 Cong. Rec. 8725, 84th Cong. 2d Sess.
---------------------------------------------------------------------------
Mr. [Louis C.] Rabaut [of Michigan]: Mr. Chairman, I make a
point of order against certain language in the Tennessee Valley
Authority paragraph as follows: . . .
. . . On page 3, lines 1 to 3 ``, of which $400,000 shall be
derived from this appropriation and $750,000 shall
[[Page 5891]]
be derived from proceeds of operations of the Tennessee Valley
Authority.''
Mr. Chairman, I make the point of order that all of the
language to which I have referred is legislation on an
appropriation bill. . . .
The Chairman: (18) . . . It is clearly legislation
on an appropriation bill and the point of order is sustained.
---------------------------------------------------------------------------
18. Jere Cooper (Tenn.).
---------------------------------------------------------------------------
--Travel Expenses Paid by States
Sec. 38.13 In an appropriation bill providing funds for salaries and
expenses, Office of Education, a provision that ``all receipts from
non-Federal agencies representing reimbursement for expenses of
travel of employees of the Office of Education performing advisory
functions to the said agencies shall be deposited in the Treasury
of the United States to the credit of this appropriation,'' was
conceded and held to be legislation and not in order.
On Apr. 2, 1957,(19) during consideration in the
Committee of the Whole of the Departments of Labor and Health,
Education, and Welfare appropriation bill (H.R. 6287), a point of order
was raised against the following provision:
---------------------------------------------------------------------------
19. 103 Cong. Rec. 4972, 85th Cong. 1st Sess.
---------------------------------------------------------------------------
Salaries and expenses: For expenses necessary for the Office of
Education, including surveys, studies, investigations, and reports
regarding libraries; fostering coordination of public and school
library service; coordination of library service on the national
level with other forms of adult education; developing library
participation in Federal projects; fostering nationwide
coordination of research materials among libraries, interstate
library coordination and the development of library service
throughout the country; purchase, distribution, and exchange of
educational documents, motion-picture films, and lantern slides;
collection, exchange, and cataloging of educational apparatus and
appliances, articles of school furniture and models of school
buildings illustrative of foreign and domestic systems and methods
of education, and repairing the same; and cooperative research,
surveys, and demonstrations in education as authorized by the act
of July 26, 1954 (20 U.S.C. 331-332); $7 million, of which not less
than $550,000 shall be available for the Division of Vocational
Education as authorized: Provided, That all receipts from non-
Federal agencies representing reimbursement for expenses of travel
of employees of the Office of Education performing advisory
functions to the said agencies shall be deposited in the Treasury
of the United States to the credit of this appropriation.
Mr. [Edgar W.] Hiestand [of California]: Mr. Chairman, I make a
point of order against the language beginning in line 17, page 19,
down through line 22.
The Chairman: (20) Beginning where?
---------------------------------------------------------------------------
20. Aime J. Forand (R.I.).
---------------------------------------------------------------------------
[[Page 5892]]
Mr. Hiestand: This language:
Provided, That all receipts from non-Federal agencies
representing reimbursement for expenses of travel of employees
of the Office of Education performing advisory functions to the
said agencies shall be deposited in the Treasury of the United
States to the credit of this appropriation.
We would redistribute the money, and I suggest, Mr. Chairman,
that that is definitely legislation on an appropriation bill.
The Chairman: Does the gentleman from Rhode Island desire to be
heard on the point of order?
Mr. [John E.] Fogarty [of Rhode Island]: This was only an
attempt to have the States reimburse the Federal Government for the
technical assistance that the States call on the Department of
Education to give. Now, if you want it all to come out of the
Federal Treasury and not have the States make this reimbursement,
this is the way to do it. It is clearly subject to a point of
order, and I concede the point of order.
The Chairman: The Chair has examined the language in the bill
and sustains the point of order.
Reimbursements for Indian Educational Expenses
Sec. 38.14 Language in an appropriation bill appropriating money to be
advanced for certain purposes coupled with a direction that such
advances shall be reimbursable during a fixed period under rules
and regulations prescribed by an executive officer was held to be
legislation and not in order.
On May 14, 1937,(1) the Committee of the Whole was
considering H.R. 6958, an Interior Department appropriation bill. A
point of order was raised against the following paragraph:
---------------------------------------------------------------------------
1. 81 Cong. Rec. 4598, 4599, 75th Cong. 1st Sess.
---------------------------------------------------------------------------
For the purpose of encouraging industry and self-support among
the Indians and to aid them in the culture of fruits, grains, and
other crops, $165,000, which sum may be used for the purchase of
seeds, animals, machinery, tools, implements, and other equipment
necessary . . . Provided further, That not to exceed $15,000 may be
advanced to worthy Indian youths to enable them to take educational
courses, including courses in nursing home economics, forestry, and
other industrial subjects in colleges, universities, or other
institutions, and advances so made shall be reimbursed in not to
exceed 8 years, under such rules and regulations as the Secretary
of the Interior may prescribe.
Mr. [John] Taber [of New York]: Mr. Chairman, I make a point of
order against the paragraph beginning on page 26, line 4. The point
of order is that this is legislation on an appropriation bill and
it imposes discretionary duties upon the Secretary of the Interior.
The language at the bottom of the bill, beginning with ``Provided
further'', line 22, and the last proviso are entirely the same.
They provide that the Secretary of the Interior shall make
[[Page 5893]]
rules and regulations and there is no question but what it imposes
additional duties upon the Secretary of the Interior all the way
through.
In lines 17 and 18 the terms of repayment are made subject to
the discretion of the Secretary of the Interior and in lines 9 and
10 it is subject to that same discretion. This is all on page 26.
The whole paragraph is subject to discretion and imposes duties
upon the Secretary. . . .
The Chairman: (2) The Chair would like to inquire
further of the gentleman with reference to the language appearing
in lines 7 and 8, page 27, reading as follows:
---------------------------------------------------------------------------
2. Jere Cooper (Tenn.).
---------------------------------------------------------------------------
And advances so made shall be reimbursed in not to exceed 8
years under such rules and regulations as the Secretary of the
Interior may prescribe.
Will the gentleman advise the Chair as to any provision of
existing law upon which this language is based?
Mr. [Jed] Johnson of Oklahoma: Mr. Chairman, this is the exact
language that has been used for several years and the gentleman
from Oklahoma knows of no specific basis of law for it.
The Chairman: The Chair is ready to rule.
The gentleman from New York makes a point of order against the
entire paragraph beginning in line 4, page 26, extending down to
and including line 9, page 27. The gentleman from New York [Mr.
Taber] in making his point of order invited attention to certain
language appearing in lines 10 and 11, page 26, with reference to
the discretion of the Secretary of the Interior.
The Chair has examined the act commonly referred to and known
as the Snyder Act and invites attention to section 13 of that act,
in which the following appears:
Expenditures of appropriations by Bureau of Indian Affairs:
The Bureau of Indian Affairs, under the supervision of the
Secretary of the Interior, shall direct, supervise, and expend
such moneys as Congress may from time to time appropriate for
the benefit, care, and assistance of the Indians throughout the
United States for the following purposes: General support and
civilization, including education; for industrial assistance
and advancement and general administration of Indian problems.
Further, for general and incidental expenses in connection with
the administration of Indian affairs.
It is the opinion of the Chair that the act to which attention
has been invited confers upon the Secretary of the Interior rather
broad discretionary authority. The Chair is of opinion that the
language to which the gentleman invited attention is not subject to
a point of order, but that the language to which the Chair invited
the attention of the gentleman from Oklahoma with reference to the
provisos does constitute legislation on an appropriation bill not
authorized by the rules of the House. It naturally follows that as
the point of order has to be sustained as to these two provisos, it
has to be sustained as to the entire paragraph. The Chair therefore
sustains the point of order made by the gentleman from New York.
[[Page 5894]]
CHAPTER 26
Unauthorized Appropriations; Legislation on Appropriation Bills
C. PROVISIONS AS ``CHANGING EXISTING LAW,'' GENERALLY
Sec. 39. Subject Matter: Agriculture
Sharecropper Participation in Conservation
Sec. 39.1 Language in an appropriation bill providing that
notwithstanding any other provision of law, persons who in 1943
carry out farming operations as tenants or sharecroppers on
cropland owned by the United States and who comply with the
agriculture conservation program shall be entitled to receive
payment for their participation in said program as other producers,
was held to be legislation on an appropriation bill.
On Apr. 16, 1943,(3) during consideration in the
Committee of the Whole of the Agriculture Department appropriation bill
(H.R. 2481), the following proceedings took place:
---------------------------------------------------------------------------
3. 89 Cong. Rec. 3492, 3494, 78th Cong. 1st Sess.
---------------------------------------------------------------------------
The Chairman: (4) The gentleman has other points of
order against the paragraph?
---------------------------------------------------------------------------
4. William M. Whittington (Miss.).
---------------------------------------------------------------------------
Mr. [Hampton P.] Fulmer [of South Carolina]: Yes.
The Chairman: Will the gentleman indicate those?
Mr. Fulmer: On page 67, line 16, down to and including line 3,
on page 68, which language is as follows: ``Provided further, That
notwithstanding any other provision of law, persons who in 1943
carry out farming operations as tenants or sharecroppers on
cropland owned by the United States Government and who comply with
the terms and conditions of the 1943 agricultural conservation
program, formulated pursuant to sections 7 to 17, inclusive, of the
Soil Conservation and Domestic Allotment Act, as amended, shall be
entitled to apply for and receive payments, or to retain payments
heretofore made, for their participation in said program to the
same extent as other producers'' . . . on the ground that it is
legislation on an appropriation bill without any authorization in
law. . . .
The Chairman: The Chair is ready to rule.
The gentleman from South Carolina makes the point of order
against the language beginning in line 16 and running down to and
including the word ``producers'' in line 25 that it is legislation
on an appropriation bill. With the information available to the
Chair, the Chair is of the opinion that it is legislation on an
appropriation bill, and sustains the point of order.
Soil Conservation Payments
Sec. 39.2 Where existing law provides a flat $10,000 limitation on the
amount any person may receive as soil conservation payments, an
amendment limiting such payments to $10,000 unless the pay
[[Page 5895]]
ment is in respect to more than one farm and adding a reporting
requirement was held legislation and not in order.
On Mar. 28, 1939,(5) during consideration in the
Committee of the Whole of the Agriculture Department appropriation bill
(H.R. 5269), a point of order was raised against the following
amendment:
---------------------------------------------------------------------------
5. 84 Cong. Rec. 3428, 3429, 76th Cong. 1st Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
Amendment offered by Mr. [Francis H.] Case of South Dakota:
Page 89, line 9, after the colon, insert: ``Provided further,
That no payment from these funds for any one year shall be made
to any person or corporation in excess of $10,000 unless the
payment is with respect to more than one farm and then only if
the excess be in the total of payments to a landlord who shall
furnish to the Secretary of Agriculture a certificate from the
county committee in which his farms are located stating that
his division of the proceeds of that farm's benefit payments
with the renter or sharecropper are fair and customary in the
community.
Mr. [Marvin] Jones of Texas: Mr. Chairman, I reserve a point of
order against the amendment. . . .
Mr. Chairman, I would like to be heard for a moment.
On page 5, section 102, of the present act there is a flat
$10,000 limitation on the amount that any person may receive.
Insofar as this amendment is effective at all, it changes this
provision, but it stipulates that if there is more than one farm
the $10,000 shall apply only to each farm. That is a clear change
in the law because he stipulates if there is more than one farm
then the $10,000 flat limitation in the present law shall be of no
force and effect. Certainly that is a change in the law. . . .
The Chairman: (6) It is the opinion of the Chair
that the amendment, although in the guise of a limitation, is
legislative in nature and not in order on an appropriation bill.
The Chair, therefore, sustains the point of order.
---------------------------------------------------------------------------
6. Wright Patman (Tex.).
---------------------------------------------------------------------------
Level of Federal Taxable Income as Eligibility for Payments
Sec. 39.3 To an appropriation bill an amendment providing that a
participant in the soil conservation program could not qualify ``if
his net individual income for Federal income-tax purposes is in
excess of $10,000 in 1952'' was held to be legislation and not in
order.
On May 20, 1953,(7) during consideration in the
Committee of the Whole of the Agriculture Department appropriation bill
(H.R. 5227), a point of order was raised against an amendment offered
to the following portion of the bill:
---------------------------------------------------------------------------
7. 99 Cong. Rec. 5244, 5263, 5264, 83d Cong. 1st Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
[[Page 5896]]
. . . Provided further, That none of the funds herein
appropriated or made available for the functions assigned to
the Agricultural Adjustment Agency pursuant to the Executive
Order Numbered 9069, of February 23, 1942, shall be used to pay
the salaries or expenses of any regional information employees
or any State information employees . . . Provided further, That
such amount shall be available for salaries and other
administrative expenses in connection with the formulation and
administration of the 1954 program of soil-building practices
and soil- and water-conserving practices, under the act of
February 29, 1936, as amended (amounting to $195 million,
including administration, and formulated on the basis of a
distribution of the funds available for payments and grants
among the several States in accordance with their conservation
needs as determined by the Secretary, except that the
proportion allocated to any State shall not be reduced more
than 15 percent from the distribution for the next preceding
program year, and no participant shall receive more than
$2,500); but the payments or grants under such programs shall
be conditioned upon the utilization of land with respect to
which such payments or grants are to be made in conformity with
farming practices which will encourage and provide for soil-
building and soil- and water-conserving practices in the most
practical and effective manner and adapted to conditions in the
several States, as determined and approved by the State
committees appointed pursuant to section 8 (b) of the Soil
Conservation and Domestic Allotment Act, as amended (16 U.S.C.
590h (b)), for the respective States. . . .
Mr. [James G.] Fulton [of Pennsylvania]: Mr. Chairman, I offer
an amendment.
The Clerk read as follows:
Amendment offered by Mr. Fulton: Page 31, line 22, strike
out the figure ``$2,500'' and insert ``$1,000 nor qualify as a
participant for payments of grants of assistance under such
program if his net individual income for Federal income-tax
purposes is in excess of $10,000 in 1952.''
Mr. [Jamie L.] Whitten [of Mississippi]: Mr. Chairman, I
reserve a point of order.
Mr. H. Carl Andersen [of Minnesota]: Mr. Chairman, a point of
order.
The Chairman: (8) The gentleman from Mississippi
will state his point of order.
---------------------------------------------------------------------------
8. William M. McCulloch (Ohio).
---------------------------------------------------------------------------
Mr. Whitten: This amendment would require affirmative action by
the Secretary of Agriculture or someone acting for him. It would
require the disclosure of income of individual citizens, which
information is prohibited by law from being made public. It would
require affirmative and special action by someone in the
Government, which would make it legislation upon an appropriation
bill. . . .
The Chairman: The Chair is prepared to rule. As has been
indicated by the gentleman from Pennsylvania [Mr. Fulton], the
amendment imposes a qualification upon participants in this
program. Therefore, the Chair is of the opinion that the offered
amendment proposes legislation on an appropriation bill and is,
therefore, subject to a point of order. The Chair sustains the
point of order.
Price Minimum on Agricultural Purchases
Sec. 39.4 A provision in a general appropriation bill that ``agri
[[Page 5897]]
cultural products . . . purchased or obtained under this program
shall be at not less than'' a designated price was conceded and
held to be legislation and not in order.
On June 28, 1952,(9) during consideration in the
Committee of the Whole of a supplemental appropriation bill (H.R.
8370), the following point of order was raised:
---------------------------------------------------------------------------
9. 98 Cong. Rec. 8501, 82d Cong. 2d Sess.
---------------------------------------------------------------------------
Mr. [J. Vaughan] Gary [of Virginia]: Mr. Chairman, I make the
point of order against the language on lines 16 to 22 on page 36
that it is legislation on an appropriation bill. That language is
as follows:
Provided further, That agricultural products or products
produced from agricultural products purchased or obtained under
this program shall be at not less than the average market price
prevailing for such commodity or commodities within the United
States or the support price for such commodity or commodities,
whichever is the greater.
Mr. [Jamie L.] Whitten [of Mississippi]: Mr. Chairman, I was
the author of that language in the bill. I confess that it is
subject to a point of order.
The Chairman: (10) Does the gentleman concede the
point of order?
---------------------------------------------------------------------------
10. Francis E. Walter (Pa.).
---------------------------------------------------------------------------
Mr. Whitten: I do, Mr. Chairman.
The Chairman: The point of order is sustained.
Restriction on Uses of Loans, Rural Electrification
Sec. 39.5 An amendment to the Agriculture Department appropriation bill
providing that certain loans under the Rural Electrification
Administration shall be exclusively for purchasing and financing
the construction and operation of generating plants and facilities
for furnishing electric energy to persons in rural areas who are
not receiving central station service, was held to be legislation
on an appropriation bill.
On Apr. 19, 1943,(11) during consideration in the
Committee of the Whole of the Agriculture Department appropriation bill
(H.R. 2481), the following ruling was made by Chairman William M.
Whittington, of Mississippi:
---------------------------------------------------------------------------
11. 89 Cong. Rec. 3588, 78th Cong. 1st Sess.
---------------------------------------------------------------------------
The gentleman from Oklahoma offers an amendment to the
amendment offered by the gentleman from Mississippi [Mr. Rankin] in
the following words:
Provided, That these loans shall be exclusively for the
purpose of financing the construction and operation of
generating plants, electric transmission and distribution lines
or systems for the furnishing of electric energy to persons in
rural areas who are not receiving central station service.
[[Page 5898]]
The Chair is unable to see where there is any limitation in
the language used and concludes it is legislation, therefore
sustains the point of order.
Reconstruction Finance Corporation Loan Authority Extended
Sec. 39.6 A provision in a general appropriation bill appropriating
money for the purchase of property by the Rural Electrification
Administration and providing that such sum be borrowed from the
Reconstruction Finance Corporation, and directing the corporation
to lend such amount notwithstanding certain provisions of law, was
conceded and held to be legislation and not in order.
On Feb. 2, 1940,(12) during consideration in the
Committee of the Whole of the Agriculture Department appropriation bill
(H.R. 8202), a point of order was raised against the following
provision:
---------------------------------------------------------------------------
12. 86 Cong. Rec. 1033, 76th Cong. 3d Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
Loans: For loans in accordance with sections 3, 4, and 5,
and the purchase of property in accordance with section 7 of
the Rural Electrification Act of May 20, 1936, as amended (7
U.S.C. 901-914), $40,000,000, which sum shall be borrowed from
the Reconstruction Finance Corporation in accordance with the
provisions of section 3(a) of said act, and shall be considered
as made available thereunder; and the Reconstruction Finance
Corporation is hereby authorized and directed to lend such sum
in addition to the amounts heretofore authorized under said
section 3(a) and without regard to the limitation in respect of
time contained in section 3(e) of said act.
Mr. [John] Taber [of New York]: Mr. Chairman, I make a point of
order against the language beginning on page 84, line 7, with the
word ``which'', and ending with the word ``act'', in line 15, that
it is legislation upon an appropriation bill.
Mr. [Clarence] Cannon of Missouri: Mr. Chairman, I concede the
point of order.
The Chairman: (13) The gentleman from Missouri
concedes the point of order. The point of order is sustained.
---------------------------------------------------------------------------
13. William P. Cole, Jr. (Md.).
---------------------------------------------------------------------------
Consolidation and Continuation of Authorities
Sec. 39.7 Language in the Agriculture Department appropriation bill to
enable the Secretary of Agriculture, through the Farm Credit
Administration and through existing agencies under its
administration to administer all activities, projects, and
functions heretofore carried on under the caption ``Loans, grants,
and rural rehabilitation'' was conceded and held to be legislation
on an appropriation bill.
[[Page 5899]]
On Apr. 19, 1943,(14) during consideration in the
Committee of the Whole of the Agriculture Department appropriation bill
(H.R. 2481), a point of order was raised against the following
provision:
---------------------------------------------------------------------------
14. 89 Cong. Rec. 3592, 78th Cong. 1st Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
Loans and Rural Rehabilitation
Making and servicing loans: To enable the Secretary,
through the Farm Credit Administration and through existing
agencies under its supervision, including the Crop and Feed
Loan Division and production credit associations, to administer
all activities, projects, facilities, and functions heretofore
carried on under the caption, ``Loans, grants, and rural
rehabilitation,'' the continuance of which is authorized under
the terms of this appropriation, and to provide assistance to
needy farmers in the United States, its Territories and
possessions, unable to obtain credit elsewhere, through making
and servicing of loans under this and prior law, $12,000,000. .
. .
Mr. [John] Taber [of New York]: Mr. Chairman, I make a point of
order against the paragraph just read on the ground it is
legislation on an appropriation bill and is not authorized by law.
Mr. [Malcolm C.] Tarver [of Georgia]: Mr. Chairman, the point
of order is conceded.
The Chairman: (15) The point of order is sustained.
---------------------------------------------------------------------------
15. William M. Whittington (Miss.).
---------------------------------------------------------------------------
Use of Money From Timber Sales
Sec. 39.8 An amendment to the Agriculture Department appropriation bill
proposing that 10 percent of all moneys received from timber sales
by each national forest during each fiscal year shall be available
to be expended by the Secretary of Agriculture for recreational
purposes within such national forest was held to be legislation and
not in order.
On Apr. 5, 1949,(16) during consideration in the
Committee of the Whole of the Agriculture Department appropriation bill
(H.R. 3997), a point of order was raised against the following
amendment:
---------------------------------------------------------------------------
16. 95 Cong. Rec. 3948, 81st Cong. 1st Sess.
---------------------------------------------------------------------------
Mr. [Boyd] Tackett [of Arkansas]: Mr. Chairman, I offer an
amendment.
The Clerk read as follows:
Amendment offered by Mr. Tackett: On page 39, line 13,
insert the following paragraph:
``Forest recreational purposes: Ten percent of all moneys
received from timber sales by each national forest during each
fiscal year shall be available at the end thereof to be
expended by the Secretary of Agriculture for recreational
purposes within such national forest.''
Mr. [Jamie L.] Whitten [of Mississippi]: Mr. Chairman, I regret
to
[[Page 5900]]
have to make a point of order against the amendment, but I must do
so. I make the point of order that the amendment is legislation on
an appropriation bill.
I think the approach the gentleman is making is sound, but I
believe it should be considered by the appropriate legislative
committee. . . .
The Chairman: (17) The Chair is ready to rule.
---------------------------------------------------------------------------
17. Aime J. Forand (R.I.).
---------------------------------------------------------------------------
The Chair considers the amendment to be strictly legislation on
an appropriation bill by virtue of the fact that it does not call
for money to be appropriated out of the Treasury but directs that
certain things be done with the receipts from the sale of timber.
For that reason the Chair sustains the point of order.
Bank Audits
Sec. 39.9 A proviso in the Agriculture Department appropriation bill
that the federal land banks and joint stock land banks shall be
examined once a year instead of at least twice as provided by law,
and changing the law with reference to salaries of employees
engaged in such examinations, was conceded and held to be
legislation on an appropriation bill.
On Apr. 19, 1943,(18) during consideration in the
Committee of the Whole of the Agriculture Department appropriation bill
(H.R. 2481), a point of order was raised against the following
provision:
---------------------------------------------------------------------------
18. 89 Cong. Rec. 3590, 78th Cong. 1st Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
Farm Credit Administration
salaries and expenses
For salaries and expenses of the Farm Credit Administration
in the District of Columbia and the field . . . Provided, That
the requirement (12 U.S.C. 952) that Federal land banks and
joint stock land banks shall be examined at least twice each
year is hereby modified so that such examinations need be made
only once each year: Provided further, That the expenses and
salaries of employees engaged in such examinations shall be
assessed against the said corporations, banks, or institutions
in accordance with the provisions of existing laws except that
the amounts collected from the Federal land banks, joint stock
land banks, and Federal intermediate credit banks pursuant to
the act of July 17, 1916, as amended (12 U.S.C. 657) shall be
covered into the Treasury and credited to a special fund. . . .
Mr. [Clifford R.] Hope [of Kansas]: Mr. Chairman, I make the
point of order that the language beginning with the word
``proviso'', line 15, page 84, continuing on down to and including
the word ``thereto'' in line 4, page 86, is legislation not
authorized by law on an appropriation bill.
Mr. [Malcolm C.] Tarver [of Georgia]: The point of order is
conceded.
The Chairman: (19) The point of order is sustained.
---------------------------------------------------------------------------
19. William M. Whittington (Miss.).
---------------------------------------------------------------------------
[[Page 5901]]
Definition of Terms
Sec. 39.10 To an agricultural appropriation bill, an amendment
curtailing the use of funds therein for price support payments to
any person in excess of $30,000 per year and providing that ``for
the purpose of this (amendment) the term `person' shall mean an
individual, partnership, firm, joint stock company,'' or the like,
was ruled out as legislation.
On May 26, 1965,(20) during consideration in the
Committee of the Whole of the Agriculture Department appropriation bill
(H.R. 8370), a point of order was raised against the following
amendment:
---------------------------------------------------------------------------
20. 111 Cong. Rec. 11655, 11656, 89th Cong. 1st Sess.
---------------------------------------------------------------------------
Mr. [Robert H.] Michel [of Illinois]: Mr. Chairman, I offer an
amendment.
The Clerk read as follows:
Amendment offered by Mr. Michel: On page 33, line 24, after
the word ``hereof'', strike the period, insert a colon and the
following: ``Provided further: (a) That none of the funds
herein appropriated may be used to formulate or carry out price
support programs during the period ending June 30, 1966, under
which a total amount of price support payments in excess of
$30,000 would be made to any person . . . (b) That for the
purposes of this proviso the term `person' shall mean an
individual partnership, firm, joint stock company, corporation,
association, trust, estate or other legal entity, or a State,
political subdivision of a State, or any agency thereof.'' . .
.
Mr. [Jamie L.] Whitten [of Mississippi]: Mr. Chairman, I should
like to read, if I may, the first part of the amendment, as I make
the point of order against it:
Provided, That none of the funds herein appropriated may be
used to formulate or carry out price support programs during
the period ending June 30, 1966, under which a total amount of
price support payments in excess of $30,000 would be made to
any person.
I respectfully submit that this not only would require some new
duties but also would require the opening up of individual
accounts. This makes it quite clearly subject to a point of order.
I might point out that subsection (b), where the definitions
are given, would require a determination and also would call for
special duties.
The Chairman: (1) Does the Chair correctly
understand that the gentleman from Mississippi has stated his point
of order against the pending amendment?
---------------------------------------------------------------------------
1. Eugene J. Keogh (N.Y.).
---------------------------------------------------------------------------
Mr. Whitten: Yes.
Mr. Michel: Mr. Chairman, I should like to be heard on the
point of order. I submit, Mr. Chairman, it falls strictly within
the Holman rule on retrenching, as a limitation. The Department of
Agriculture has all kinds of statisticians. We appropriate money
for them. They have the wherewithal to make any kind of
determination we see fit to legislate. In this sense, it is a
retrenchment, in my opinion.
The Chairman: . . . The Chair has read the amendment offered by
the
[[Page 5902]]
gentleman from Illinois. The Chair is of the opinion that even
though any limitation imposed upon an executive agency may add to
the burdens of that executive agency, a limitation of an
appropriation is in good order. The Chair, therefore, would say to
the gentleman from Illinois that in the opinion of this occupant of
the Chair, he has offered an amendment which is in form a
limitation. But in addition thereto, he has added language which
defines a person, and in the opinion of the Chair that language is
legislation on an appropriation bill and is therefore out of order.
The Chair sustains the point of order.
Agricultural Conservation Committees; Capping Allotments for Soil
Conservation Services
Sec. 39.11 Language in an appropriation bill providing that the county
agricultural conservation committee in any county ``with the
approval of the State Committee'' may allot not to exceed five per
centum of its allocation for the agriculture conservation program
to the Soil Conservation Service for services of its technicians in
carrying out the program, was held to be legislation and not in
order.
On Apr. 27, 1950,(2) during consideration of H.R. 7786
[the Department of Agriculture chapter, general appropriation bill,
1951], a point of order was raised against language as described above:
---------------------------------------------------------------------------
2. 96 Cong. Rec. 5914, 5915, 81st Cong. 2d Sess.
---------------------------------------------------------------------------
Mr. [Fred] Marshall [of Minnesota]: Mr. Chairman, I make the
point of order against the following language beginning in line 17
on page 191--
Provided further, That the county agricultural conservation
committee in any county with the approval of the State
committee may allot not to exceed 5 percent of its allocation
for the agricultural conservation program to the Soil
Conservation Service for services of its technicians in
formulating and carrying out the agricultural conservation
program and the funds so allotted shall be utilized by the Soil
Conservation Service for technical and other assistance in such
county--
That it is legislation on an appropriation bill. The language
contained in these lines has to do with the administration of the
programs in two separate agencies of the Department of Agriculture,
which ought to come before a proper legislative committee to have
legal determination made. . . .
Mr. [Jamie L.] Whitten [of Mississippi]: Mr. Chairman, in
answer to the statement by the gentleman from Minnesota, I point
out that this provision was written in the bill last year after
conference with and with the approval of the members of the
legislative Committee on Agriculture. It is an
[[Page 5903]]
effort on the part of our committee to more properly utilize the
various specialists of the two agricultural programs.
Under the present law, these two agricultural agencies are
authorized to utilize the services of other agencies. In effect, by
fixing it at 5 percent, I think we are on sound ground in insisting
on the limitation. It is a limitation in the amount which can be
used for a particular purpose, whereas, in the absence of the 5-
percent figure, each agency could use the services of the other,
and under the general law would have a right to compensate the
other for services rendered. I think under the general provisions
of the law that is true. The 5-percent provision is a limitation
rather than legislation or an authorization. . . .
Mr. [Francis H.] Case of South Dakota: Is it the contention of
the gentleman from Mississippi that, under existing law, without
this limitation an allotment might be made in excess of 5 percent?
Mr. Whitten: I do not know as to the use of the word
``allotment,'' but under the Economy Act of 1932, section 601, any
agency is entitled to use and is authorized to use the services of
another agency and to pay for such services.
Mr. Case of South Dakota: Under the basic act, the Soil
Conservation and Domestic Allotment Act, is it not true that these
technical and other services could be provided?
Mr. Whitten: They could be. The point that we are trying to get
at here is that the Production and Marketing Administration is
entitled to this type of service, and in many cases has to go out
and hire and train additional specialists while the Federal
Government is paying such specialists, who are doing the same kind
of work.
Mr. Case of South Dakota: That is right.
Mr. Whitten: They would be authorized to use the services of
the Soil Conservation Service beyond this 5 percent. May I point
out that the citation of the act is 31 United States Code, section
686. The 5-percent provision here is not compulsory. By its
insertion we hope to be able to get these two agencies to use the
services of the other, instead of going out in two directions. I
think we are on sound ground in our objective and in our approach
to reach that objective. They already have authority to use these
services, but by putting this provision in we stress our intention
that they make use of the services. I think it will result in
economy, if they do make use of the services. I may say that the
Department has just begun to make use of them, and, from the
reports that I am now getting, it is doing a great deal of good.
Mr. Case of South Dakota: If I understand the gentleman
correctly, this service could be carried on by the Production and
Marketing Administration itself?
Mr. Whitten: And in most cases it is, with absolute disregard
of the fact that technical people are already drawing pay from the
Federal Government who could do the work.
Mr. Case of South Dakota: The gentleman has cited the act and
also pointed out that existing law authorizes the agency to utilize
the services of another agency to carry out its authorized
functions.
[[Page 5904]]
Mr. Whitten: That is correct. . . .
The Chairman: (3) The Chair is prepared to rule.
---------------------------------------------------------------------------
3. Jere Cooper (Tenn.).
---------------------------------------------------------------------------
The gentleman from Minnesota [Mr. Marshall] has made a point of
order against the language appearing in that section of the bill on
page 191 beginning with the word ``Provided'' in line 17, and
continuing through the remainder of that paragraph down to and
including the word ``county'' in line 25, on the ground that it
includes legislation on an appropriation bill in violation of the
rules of the House.
The Chair has examined the language here in question and is of
the opinion that it could be drawn so as to constitute a
limitation, but as the language appears now in the bill it does
appear to the Chair that it contains legislation. The Chair, of
course, has to pass on the question as it is here presented and
invites attention to the fact that among other things it includes
the words ``with the approval.'' It appears to the Chair that the
language quoted does include legislation on an appropriation bill
in violation of the rules of the House.
The point of order is sustained.
Parliamentarian's Note: A subsequent amendment to the bill that
day, providing, inter alia, that ``not to exceed 5 percent of the
allocation for the agricultural conservation program for any county may
be allocated to the Soil Conservation Service'' for services of its
technicians in carrying out the agricultural conservation program, was
held to be a limitation, restricting the availability of funds and
therefore in order. See Sec. 67.13, infra.
CHAPTER 26
Unauthorized Appropriations; Legislation on Appropriation Bills
C. PROVISIONS AS ``CHANGING EXISTING LAW,'' GENERALLY
Sec. 40. Commerce
Delegation of Authority of Secretary of Commerce
Sec. 40.1 Language in an appropriation bill authorizing the Secretary
of Commerce to designate an officer of the Department to sign minor
routine official papers and documents during the temporary absence
of the Secretary, the Under Secretary, and the Assistant Secretary,
was conceded and held to be legislation on an appropriation bill.
On Mar. 16, 1945,(4) during consideration in the
Committee of the Whole of a general appropriation bill (H.R. 2603), a
point of order was raised against the following provision:
---------------------------------------------------------------------------
4. 91 Cong. Rec. 2367, 2368, 79th Cong. 1st Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
Title III--Department of Commerce
office of the secretary
Salaries and expenses: For all necessary expenses of the
office of the Secretary of Commerce (hereafter in
[[Page 5905]]
this title referred to as the Secretary) including personal
services in the District of Columbia [and] teletype news
service . . . Provided, That hereafter the Secretary may
designate an officer of the Department to sign minor routine
official papers and documents during the temporary absence of
the Secretary, the Under Secretary, and the Assistant Secretary
of the Department.
Mr. [Robert F.] Jones [of Ohio]: Mr. Chairman, I make a point
of order against the language on page 54, line 15, as follows:
``teletype news service (not to exceed $1,000)'' as not authorized
by law, and to the language beginning in line 21, same page,
starting with the word ``Provided'' and continuing to the bottom of
that page and including the first two lines on page 55. It is
legislation on an appropriation bill not authorized by law.
Mr. [Louis C.] Rabaut [of Michigan]: Mr. Chairman, we concede
both points of order.
The Chairman: (5) The points of order are sustained.
---------------------------------------------------------------------------
5. Wilbur D. Mills (Ark.).
---------------------------------------------------------------------------
Sec. 40.2 Language in an appropriation bill providing that the
Secretary of Commerce may delegate his authority to approve payment
of travel and other expenses of employees on change of official
station was conceded and held to be legislation on an appropriation
bill.
On Mar. 16, 1945,(6) during consideration in the
Committee of the Whole of a general appropriation bill (H.R. 2603), a
point of order was raised against the following provision:
---------------------------------------------------------------------------
6. 91 Cong. Rec. 2376, 79th Cong. 1st Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
During the fiscal year 1946 the Secretary of Commerce may
delegate his authority to subordinate officials of the Coast
and Geodetic Survey, and Weather Bureau, and the Civil
Aeronautics Administration, to authorize payment of expenses of
travel and transportation of household goods of officers and
employees on change of official station: Provided, That in no
case shall such authority be delegated to any official below
the level of the heads of regional or field offices.
Mr. [Robert F.] Jones [of Ohio]: Mr. Chairman, a point of
order. On page 75, beginning with line 12, the entire paragraph
down to and including line 20, on the ground it is legislation on
an appropriation bill, not authorized by law.
Mr. [Louis C.] Rabaut [of Michigan]: Mr. Chairman, we concede
the point of order.
The Chairman: (7) The point of order is sustained.
---------------------------------------------------------------------------
7. Wilbur D. Mills (Ark.).
---------------------------------------------------------------------------
Entertainment Expenses
Sec. 40.3 An appropriation under the heading of Office of Administrator
of Civil Aeronautics, Department of Commerce, ``for entertainment
of officials in the field of aviation of other countries when
specifically authorized and
[[Page 5906]]
approved by the Administrator,'' was conceded and held to be
legislation on an appropriation bill.
On Mar. 16, 1945,(8) during consideration in the
Committee of the Whole of a general appropriation bill (H.R. 2603), a
point of order was raised against the following provision:
---------------------------------------------------------------------------
8. 91 Cong. Rec. 2369, 2370, 79th Cong. 1st Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
Office of Administrator of Civil Aeronautics
General administration, Office of the Administrator: For
necessary expenses of the Office of Administrator of Civil
Aeronautics in carrying out the provisions of the Civil
Aeronautics Act of 1938, as amended (49 U.S.C. 401), including
personal services in the District of Columbia and elsewhere;
contract stenographic reporting services; not to exceed $14,000
for expenses of attendance at meetings of organizations
concerned with aeronautics, when specifically authorized by the
Administrator; newspapers (not exceeding $200); not to exceed
$5,000 in fiscal year 1946 for entertainment of officials in
the field of aviation of other countries when specifically
authorized and approved by the Administrator; fees and mileage
of expert and other witnesses; expenses of examination of
estimates of appropriations in the field; hire, maintenance,
repair, and operation of passenger-carrying automobiles;
$2,680,000.
Mr. [Robert F.] Rich [of Pennsylvania]: Mr. Chairman, I make a
point of order against the language on page 57, line 22: ``not to
exceed $5,000 in fiscal year 1946 for entertainment of officials in
the field of aviation of other countries when specifically
authorized and approved by the Administrator,'' on the ground that
it is legislation on an appropriation bill.
The Chairman: (9) Does the gentleman from Michigan
desire to be heard on the point of order?
---------------------------------------------------------------------------
9. Wilbur D. Mills (Ark.).
---------------------------------------------------------------------------
Mr. [Louis C.] Rabaut [of Michigan]: Mr. Chairman, I concede
the point of order.
The Chairman: The point of order is sustained.
Foreign Trade Statistics, Site of Compilation; Permanent Provision of
Law
Sec. 40.4 Language in an appropriation bill appropriating for current
census statistics providing that ``after October 1, 1947, all
functions necessary to the compilation of foreign trade statistics
shall be performed in New York, N.Y.'' instead of Washington, D.C.,
was conceded and held to be legislation on an appropriation bill
and not in order.
On May 14, 1947,(10) during consideration in the
Committee of the Whole of a general appropriation bill (H.R. 3311), a
point of order
[[Page 5907]]
was raised against the following provision:
---------------------------------------------------------------------------
10. 93 Cong. Rec. 5303, 80th Cong. 1st Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
Current census statistics: For expenses necessary for
collecting, compiling, and publishing current census statistics
provided for by law . . . Provided, That on and after October
1, 1947, all functions necessary to the compilation of foreign
trade statistics shall be performed in New York, N.Y., and of
the foregoing amount $1,200,000 shall be available exclusively
for this purpose.
Mr. [J. Glenn] Beall [of Maryland]: I make a point of order
against the language on page 43, line 18, beginning with the word
``provided'' and going through line 22 on the same page, that it is
legislation on an appropriation bill.
Mr. [Karl] Stefan [of Nebraska]: Mr. Chairman, I concede the
point of order and I offer an amendment.
The Chairman: (11) The point of order is conceded.
The Chair sustains the point of order.
---------------------------------------------------------------------------
11. Carl T. Curtis (Nebr.).
---------------------------------------------------------------------------
Business Statistics; Waiver of Classification Act
Sec. 40.5 A paragraph carrying an appropriation for all expenses of the
Bureau of the Census necessary to collect, compile, analyze, and
publish a sample census of business was conceded to include
legislation and was ruled out in violation of Rule XXI clause 2.
On Dec. 8, 1944,(12) during consideration in the
Committee of the Whole of a supplemental appropriation bill (H.R.
5587), a point of order was raised against the following provision:
---------------------------------------------------------------------------
12. 90 Cong. Rec. 9066, 9067, 78th Cong. 2d Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
Sample census of business: For all expenses of the Bureau
of the Census necessary to collect, compile, analyze, and
publish a sample census of business, including the employment
by the Director, at rates to be fixed by him, of personnel at
the seat of government and elsewhere without regard to the
Classification Act . . . $1,200,000, to remain available until
June 30, 1946.
Mr. [Francis H.] Case [of South Dakota]: Mr. Chairman, I make a
point of order against the paragraph just read on the ground it
contains legislation unauthorized by law in an appropriation bill.
The paragraph is cited in the report of the committee as one of
those paragraphs containing legislation.
The Chairman: (13) Does the gentleman from Missouri
[Mr. Cannon] desire to be heard?
---------------------------------------------------------------------------
13. Herbert C. Bonner (N.C.).
---------------------------------------------------------------------------
Mr. [Clarence] Cannon of Missouri: Mr. Chairman, we concede the
point of order.
The Chairman: The gentleman from Missouri concedes the point of
order.
Census of Manufactures; Waiver of Classification Act
Sec. 40.6 An appropriation for all expenses of the Bureau of
[[Page 5908]]
the Census necessary to collect, compile, and analyze a census of
manufactures for 1944, was conceded and held to contain a provision
unauthorized by law and to be legislation.
On Dec. 7, 1944,(14) during consideration in the
Committee of the Whole of a supplemental appropriation bill (H.R.
5587), a point of order was raised against the following provision:
---------------------------------------------------------------------------
14. 90 Cong. Rec. 8995, 78th Cong. 2d Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
Census of manufactures for 1944: For all expenses of the
Bureau of the Census necessary to collect, compile, analyze,
and publish a census of manufactures for 1944, including the
employment by the Director, at rates to be fixed by him, of
personnel at the seat of government and elsewhere without
regard to the Classification Act . . . $2,400,000, to remain
available until June 30, 1946.
Mr. [Francis H.] Case [of South Dakota]: Mr. Chairman, I rise
to make a point of order against the paragraph just read on the
ground it contains legislation and is not authorized in an
appropriation bill. The paragraph is one of those cited in the
report as embodying legislation.
The Chairman: (15) Does the gentleman from
Pennsylvania [Mr. Snyder] desire to be heard?
---------------------------------------------------------------------------
15. Herbert C. Bonner (N.C.).
---------------------------------------------------------------------------
Mr. [J. Buell] Snyder: Mr. Chairman, I concede the point of
order.
The Chairman: The gentleman concedes the point of order and the
Chair sustains the point of order.
Immediately following this ruling, an appropriation for compiling
census reports, ``including the objects specified under this head in
the Department of Commerce Appropriation Act, and including expenses .
. . for sample surveys . . . for the purpose of estimating the size,
characteristics and distribution of the nation's population,'' was held
to be legislation and unauthorized by law.(16) The point of
order was as follows:
---------------------------------------------------------------------------
16. 90 Cong. Rec. 8995, 78th Cong. 2d Sess.
---------------------------------------------------------------------------
Mr. [John] Taber [of New York]: Mr. Chairman, I make the point
of order that this is not authorized by law, it is legislation on
an appropriation bill, and I make the same statement made before,
namely, it is cited in the report.
The Chairman: Does the gentleman from Pennsylvania [Mr. Snyder]
desire to be heard?
Mr. Snyder: Mr. Chairman, I concede the point of order.
The Chairman: The gentleman concedes the point of order, and
the Chair sustains the point of order.
Consumer Income
Sec. 40.7 An appropriation for all expenses of the Bureau of the Census
to collect, compile, and analyze statistics with respect to
consumer income was conceded and held
[[Page 5909]]
to contain legislation not authorized.
On Dec. 7, 1944,(17) during consideration in the
Committee of the Whole of a supplemental appropriation bill (H.R.
5587), a point of order was raised against the following provision:
---------------------------------------------------------------------------
17. 90 Cong. Rec. 8995, 78th Cong. 2d Sess.
---------------------------------------------------------------------------
Consumer income study: For all expenses of the Bureau of the
Census necessary to collect, compile, and analyze statistics with
respect to the consumer income, and to publish the results thereof,
including the employment by the Director, at rates to be fixed by
him, of personnel at the seat of government . . . $3,500,000, to
remain available until June 30, 1946.
Mr. H. Carl Andersen [of Minnesota]: Mr. Chairman, I make the
point of order against the paragraph that it is legislation on an
appropriation bill and not authorized by law.
The Chairman: (18) Does the gentleman from
Pennsylvania wish to be heard on the point of order?
---------------------------------------------------------------------------
18. Herbert C. Bonner (N.C.).
---------------------------------------------------------------------------
Mr. [J. Buell] Snyder [of Pennsylvania]: I concede the point of
order, Mr. Chairman.
The Chairman: The Chair sustains the point of order.
CHAPTER 26
Unauthorized Appropriations; Legislation on Appropriation Bills
C. PROVISIONS AS ``CHANGING EXISTING LAW,'' GENERALLY
Sec. 41. Defense and Foreign Relations
Military Activities in Cambodia and Laos
Sec. 41.1 To an amendment prohibiting the use of funds in a general
appropriation bill as well as funds already appropriated by other
acts to support United States combat activities in Cambodia or
Laos, an amendment making it illegal to participate in or order any
such military activities was held to constitute additional
legislation and was ruled out on a point of order.
On June 29, 1973,(19) during consideration in the
Committee of the Whole of a supplemental appropriation bill (H.R.
9055), a point of order was raised against the following amendment:
---------------------------------------------------------------------------
19. 119 Cong. Rec. 22352, 22362, 93d Cong. 1st Sess.
---------------------------------------------------------------------------
Mr. [John J.] Flynt [Jr., of Georgia]: Mr. Chairman, I offer an
amendment.
The Clerk read as follows:
Amendment offered by Mr. Flynt: Page 57, line 21, strike
out all of section 307 and insert a new section 307, as
follows:
Sec. 307. None of the funds herein appropriated under this
Act or heretofore appropriated under any other act may be
expended to support directly or indirectly combat activities
in, over or from off the shores of Cambodia or in or over Laos
by the U.S. forces. . . .
Mr. [Charles E.] Bennett [of Florida]: Mr. Chairman, I offer an
amendment to the amendment.
The Clerk read as follows:
Amendment offered by Mr. Bennett to the amendment offered
by
[[Page 5910]]
Mr. Flynt: At the end of the Flynt Amendment strike the period
and insert a semicolon and the words ``and from the date of the
enactment of this law it shall be illegal for anyone to
participate in, or order, any such activities.'' . . .
Mr. [Elford A.] Cederberg [of Michigan]: Mr. Chairman, I make a
point of order against the amendment.
The Chairman: (20) The gentleman will state his
point of order.
---------------------------------------------------------------------------
20. Jack B. Brooks (Tex.).
---------------------------------------------------------------------------
Mr. Cederberg: Legislation on an appropriation bill is subject
to a point of order. . . .
The Chairman: The Chair is ready to rule.
The Chair feels that the amendment offered by the gentleman
from Georgia (Mr. Flynt) was protected by the rule. An amendment to
that amendment which would add language making an act illegal would
be in effect legislation on an appropriation bill, in violation of
clause 2, rule XXI, and the point of order is sustained.
Defense Department General Counsel
Sec. 41.2 To an appropriation bill, an amendment proposing that no part
of the appropriation therein be paid to any commissioned officer or
any civilian employee in the office of the Judge Advocate, unless
such officer or employee is subject to the authority of a general
counsel appointed by the President, who shall be the chief legal
officer, was conceded and held to be legislation and therefore not
in order.
On May 12, 1955,(1) during consideration in the
Committee of the Whole of the Defense Department appropriation bill
(H.R. 6042), a point of order was raised against the following
amendment:
---------------------------------------------------------------------------
1. 101 Cong. Rec. 6245, 6246, 84th Cong. 1st Sess.
---------------------------------------------------------------------------
Amendment offered by Mr. [Frank] Thompson [Jr.] of New Jersey:
Page 30, immediately after line 20, insert:
``Sec. 602. No part of any appropriation contained in this act
shall be used to pay the pay and allowances of any commissioned
officer, or the wages of any civilian employee, who is assigned to
or employed in--
``(1) the office of the Judge Advocate General of the Navy,
unless such officer or employee is subject to the authority of a
general counsel of the Navy. . . .''
Mr. [George H.] Mahon [of Texas]: Mr. Chairman, it is obvious
that this is legislation on an appropriation bill and subject to a
point of order and I make the point of order against the amendment.
The Chairman: (2) Does the gentleman from New Jersey
desire to be heard on the point of order?
---------------------------------------------------------------------------
2. Eugene J. Keogh (N.Y.).
---------------------------------------------------------------------------
Mr. Thompson of New Jersey: Mr. Chairman, I concede the point
of order. . . .
The Chairman: The point of order is sustained.
[[Page 5911]]
Size of Army; ``Not Less Than''
Sec. 41.3 An amendment to a general appropriation bill establishing a
minimum size for a branch of the armed services was ruled out as
legislation.
On June 3, 1959, (3) during consideration in the
Committee of the Whole of the Defense Department appropriation bill
(H.R. 7454), a point of order was raised against the following
amendment:
---------------------------------------------------------------------------
3. 105 Cong. Rec. 9715, 9716, 86th Cong. 1st Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
Amendment offered by Mr. [Robert L. F.] Sikes [of Florida]:
Page 4, line 9, after the figure, strike out the period, add a
semicolon, and the words ``Provided, That the average strength
of the Reserve personnel, Army, shall be maintained at not less
than 300,000 during the fiscal year 1960.''
Page 5, line 16, strike out the period, add a semicolon and
the words, ``Provided further, That the Army National Guard
shall be maintained at not less than 400,000 during the fiscal
year 1960.''. . .
Mr. [Gerald R.] Ford [Jr., of Michigan]: Mr. Chairman, I make
the point of order that this is legislation on an appropriation
bill. I believe there are ample precedents to sustain such a point
of order.
May I say, however, that I join the gentleman from Florida and
others on the subcommittee in increasing the appropriation for the
Army National Guard and the Army Reserve, to raise the number on
active duty in the guard from 360,000 to 400,000 and for the Army
Reserve from 270,000 to 300,000.
I am in full accord with the desire for larger strength, but I
do feel that it is unwise to put this kind of language in an
appropriation bill. Therefore, Mr. Chairman, I insist on my point
of order.
The Chairman: (4) Does the gentleman from Florida
desire to be heard further?
---------------------------------------------------------------------------
4. Eugene J. Keogh (N.Y.).
---------------------------------------------------------------------------
Mr. Sikes: No, Mr. Chairman. I concede the point of order.
The Chairman: The Chair sustains the point of order.
The Clerk will read.
Sense of Congress on Foreign Policy Issue
Sec. 41.4 A paragraph in a general appropriation bill expressing the
sense of the Congress concerning the representation of the Chinese
government in the United Nations was ruled out as legislation.
On June 24, 1971,(5) during consideration in the
Committee of the Whole of a general appropriation bill, a point of
order was raised against the following provision:
---------------------------------------------------------------------------
5. 117 Cong. Rec. 21892, 92d Cong. 1st Sess.
See also 105 Cong. Rec. 14529, 86th Cong. 1st Sess., July
28, 1959.
---------------------------------------------------------------------------
The Clerk read as follows:
Sec. 105. It is the sense of the Congress that the
Communist Chi
[[Page 5912]]
nese Government should not be admitted to membership in the
United Nations as the representative of China.
Mr. [Sidney R.] Yates [of Illinois]: Mr. Chairman, I make the
point of order against section 105, lines 20 through 22, as being
legislation on an appropriation bill.
The Chairman: (6) Does the gentleman from New York
(Mr. Rooney) desire to be heard on the point of order?
---------------------------------------------------------------------------
6. Thomas G. Abernethy (Miss.).
---------------------------------------------------------------------------
Mr. [John J.] Rooney of New York: Yes, Mr. Chairman.
Mr. Chairman, this provision has been in this bill for many
many years. It goes back to the time that the late Senator from
Nevada, Pat McCarran, was chairman of Senate appropriations for
this bill.
However, I am constrained to have to concede that the point of
order has merit.
The Chairman: The gentleman from New York concedes the point of
order.
The point of order is sustained.
International Organizations; Limiting U.S. Contribution to Percent of
Total Cost
Sec. 41.5 To a provision in a general appropriation bill, an amendment
providing that in no case shall the United States contribution to
any international organization exceed one-third of the estimated
total annual cost was held to change existing law and, therefore,
to be legislation on an appropriation bill.
On July 25, 1951,(7) during consideration in the
Committee of the Whole of a general appropriation bill (H.R. 4740), a
point of order was raised against the following amendment:
---------------------------------------------------------------------------
7. 97 Cong. Rec. 8881, 8885, 82d Cong. 1st Sess.
---------------------------------------------------------------------------
Mr. [John Bell] Williams of Mississippi: Mr. Chairman, I offer
an amendment which is at the desk.
The Clerk read as follows:
Amendment offered by Mr. Williams of Mississippi: Page 6,
line 6, after the period add a new proviso to read: Provided
further, That in no case shall the United States contribution
to any international organization exceed one-third of the
estimated total annual cost.''
Mr. [John J.] Rooney [of New York]: Mr. Chairman, I am
constrained to insist upon the point of order that this is
legislation on an appropriation bill. We already have basic
legislation setting a ceiling on these contributions to
international organizations.
The Chairman: (8) Does the gentleman from
Mississippi desire to be heard on the point of order?
---------------------------------------------------------------------------
8. Jere Cooper (Tenn.).
---------------------------------------------------------------------------
Mr. Williams of Mississippi: Mr. Chairman, I have nothing to
say except that I insist it is a limitation of appropriations. The
amendment speaks for itself.
The Chairman: The amendment certainly goes far beyond being a
limitation.
The gentleman from Mississippi has offered an amendment; the
gentleman
[[Page 5913]]
from New York has made a point of order against the amendment on
the ground that it is legislation on an appropriation bill. The
Chair invites attention to the fact that the amendment provides for
changes in existing law with respect to international organizations
and, of course, is legislation and not in order on an appropriation
bill.
The Chair sustains the point of order.(9)
---------------------------------------------------------------------------
9. The ruling would also be justified on grounds that the language at
issue was not limited to funds in the bill.
---------------------------------------------------------------------------
Trade With Cuba
Sec. 41.6 Language in a general appropriation bill prohibiting aid
under the Foreign Assistance Act of 1961 to any country which
furnishes or permits ships under its registry to carry certain
strategic materials to Cuba was ruled out as legislation, since the
provision was a permanent restriction on the authorization rather
than upon the funds carried in the pending bill.
On June 4, 1970,(10) during consideration in the
Committee of the Whole of the foreign assistance appropriation bill
(H.R. 17867), a point of order was raised against the following
provision:
---------------------------------------------------------------------------
10. 116 Cong. Rec. 18403, 91st Cong. 2d Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
Sec. 107. (a) No assistance shall be furnished under the
Foreign Assistance Act of 1961, as amended, to any country
which sells, furnishes, or permits any ships under its registry
to carry to Cuba, so long as it is governed by the Castro
regime, in addition to those items contained on the list
maintained by the Administrator pursuant to title I of the
Mutual Defense Assistance Control Act of 1951, as amended, any
arms, ammunition, implements of war, atomic energy materials,
or any other articles, materials or supplies of primary
strategic significance used in the production of arms,
ammunition, and implements of war or of strategic significance
to the conduct of war, including petroleum products.
Mr. [Peter H. B.] Frelinghuysen [of New Jersey]: Mr. Chairman,
I make a point of order against section 107(a) on the ground that
it is legislation in an appropriations bill. . . . Mr. Chairman,
section 620 of the Foreign Assistance Act contains similar
restrictions, but they are much more detailed, specific, and
restricted than those contained in the provision which I am seeking
to strike from the appropriation bill.
The Chairman: (11) Does the gentleman from Louisiana
care to be heard?
---------------------------------------------------------------------------
11. Hale Boggs (La.).
---------------------------------------------------------------------------
Mr. [Otto E.] Passman [of Louisiana]: Mr. Chairman, your
committee felt that the language contained a very definite
limitation. The language itself states--
No assistance shall be furnished under the Foreign
Assistance Act of 1961, as amended, to any country which sells,
furnishes, or permits any ships under its registry to carry to
Cuba--
[[Page 5914]]
That provision has stood up over the years as being a
limitation. We feel that it is, and we ask the Chair for a ruling.
The Chairman: The Chair is ready to rule. As the gentleman from
New Jersey has pointed out, the language is similar but it is not
identical with the provisions of section 620 of the Foreign
Assistance Act as amended. In addition, it relates to provisions
other than those contained in this bill, and the Chair sustains the
point of order.
Penalty on Subversives' Accepting Employment
Sec. 41.7 To a bill making supplemental appropriations for national
defense, an amendment in the form of a limitation prohibiting
payment of salary and wages of any person who advocates overthrow
of the government, and fixing a penalty for accepting such work or
wages, was conceded and held to be legislation on an appropriation
bill and not in order.
On Oct. 10, 1941,(12) during consideration in the
Committee of the Whole of a supplemental appropriation bill (H.R.
5788), a point of order was raised against the following provision:
---------------------------------------------------------------------------
12. 87 Cong. Rec. 7833, 77th Cong. 1st Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
Title III--General Provisions
Sec. 301. No part of any appropriation contained in this
act shall be used to pay the salary or wages of any person who
advocates or who is a member of an organization that advocates,
the overthrow of the Government of the United States by force
or violence . . . Provided further, That any person who
advocates, or who is a member of an organization that
advocates, the overthrow of the Government of the United States
by force or violence and accepts employment the salary or wages
for which are paid from any appropriation in this act shall be
guilty of a felony and upon conviction, shall be fined not more
than $1,000 or imprisoned for not more than 1 year. . . .
Mr. [Clare E.] Hoffman [of Michigan]: Mr. Chairman, I make the
point of order against the paragraph that it is legislation which
would interfere with our relations with our friend and ally, Joseph
Stalin, and the Soviet Government.
The Chairman: (13) Does the gentleman from Missouri
desire to be heard on the point of order?
---------------------------------------------------------------------------
13. Schuyler Otis Bland (Va.).
---------------------------------------------------------------------------
Mr. [Clarence] Cannon of Missouri: I concede the point of
order, Mr. Chairman.
The Chairman: The point of order is sustained.
Mandating Domestic Use of Foreign Aid Funds
Sec. 41.8 To an amendment proposing to increase the amount appropriated
for economic assistance (defense
[[Page 5915]]
support) under the Mutual Security Act program, an amendment
imposing a minimum availability of that amount for aid to
distressed areas in the United States was conceded to be
legislation as well as nongermane and was ruled out on a point of
order.
On June 17, 1960,(14) during consideration in the
Committee of the Whole of the mutual security appropriation bill (H.R.
12619), a point of order was raised, as follows:
---------------------------------------------------------------------------
14. 106 Cong. Rec. 13117-19, 86th Cong. 2d Sess.
---------------------------------------------------------------------------
Economic Assistance
Defense support: For assistance authorized by section 131(b),
$600,000,000.
Mr. [Gerald R.] Ford [of Michigan]: Mr. Chairman, I offer an
amendment.
The Clerk read as follows:
Amendment offered by Mr. Ford: On page 2, line 18, strike
out ``$600,000,000'' and insert in lieu thereof
``$650,000,000.''. . .
Mr. [H. R.] Gross [of Iowa]: Mr. Chairman, I offer an amendment
to the amendment offered by the gentleman from Michigan [Mr. Ford].
The Clerk read as follows:
Amendment offered by Mr. Gross to the amendment offered by
Mr. Ford: On page 2, line 18, after the figure
``$600,000,000'', strike out the period and insert a colon and
add the following: Provided, That no less than $200,000,000 of
the amount appropriated in this paragraph shall be made
available to the distressed areas of the less developed States
of the United States including but not limited to the States of
West Virginia and Pennsylvania.''
Mr. [Otto E.] Passman [of Louisiana]: Mr. Chairman, I make a
point of order against the amendment.
Such action as proposed is not authorized, and I do not think
the language of the bill would permit this type of amendment. I was
not really expecting an amendment of such type, and it caught me
just a little bit off guard. However, I do not think the gentleman
from Iowa really wants to press the point.
Mr. Ford: Mr. Chairman, may I be heard on the point of order?
The Chairman: (15) The Chair will hear the gentleman
from Michigan on the point of order.
---------------------------------------------------------------------------
15. Wilbur D. Mills (Ark.).
---------------------------------------------------------------------------
Mr. Ford: Mr. Chairman, I join with the chairman of the
subcommittee. I want to indicate that, in my opinion, this
amendment is subject to a point of order. It is not germane to the
bill and it is not authorized. In my opinion, therefore, it is
subject to a point of order. . . .
Mr. Gross: Mr. Chairman, I concede the point of order.
The Chairman: The gentleman concedes the point of order.
The point of order is sustained.
Foreign Aid; Earmarking of ``Reasonable Amount'' for Domestic Use
Sec. 41.9 To an appropriation bill providing funds for technical
[[Page 5916]]
cooperation programs of the Organization of American States, an
amendment to provide that ``a reasonable amount of the funds
provided herein may be'' available for distribution in
underdeveloped areas in the United States was conceded to be
legislation and held not in order.
On Aug. 15, 1957,(16) during consideration in the
Committee of the Whole of the mutual security appropriation bill (H.R.
9302), a point of order was raised against the following amendment:
---------------------------------------------------------------------------
16. 103 Cong. Rec. 14952, 85th Cong. 1st Sess.
---------------------------------------------------------------------------
Mr. [H. R.] Gross [of Iowa]: Mr. Chairman, I offer an
amendment.
The Clerk read as follows:
Amendment offered by Mr. Gross: Page 3, line 15, after the
word ``program'' strike out the semicolon, insert a colon, and
add the following:
``Provided further, That a reasonable amount of the funds
provided herein may be used for the underdeveloped areas of the
United States of America where women's wearing apparel is made
from feedbags, such funds to be made available to and
distributed by the University of Pennsylvania.''
Mr. [Otto E.] Passman [of Louisiana]: Mr. Chairman, I am
constrained to make a point of order against the amendment on the
ground that it is legislation on an appropriation bill.
Mr. Gross: . . . I concede the point of order, Mr. Chairman.
The Chairman: (17) The Chair sustains the point of
order.
---------------------------------------------------------------------------
17. Wilbur D. Mills (Ark.).
---------------------------------------------------------------------------
Sense of Congress Regarding Panama Canal
Sec. 41.10 To a provision in a general appropriation bill (permitted to
remain by failure to raise a point of order) stating the sense of
Congress that any new Panama Canal treaty must protect the vital
interests of the United States in the Canal Zone and in the
operation, maintenance, and defense of the Canal, an amendment
striking that provision and inserting a statement that it was the
sense of Congress that any such treaty must not abrogate or vitiate
the ``traditional interpretation'' of past Panama Canal treaties,
with special reference to territorial sovereignty, was ruled out as
constituting a different statement of legislative policy, not
merely perfecting in nature, which was further legislation.
On June 10, 1977,(18) during consideration in the
Committee of
[[Page 5917]]
the Whole of the Departments of State, Justice, Commerce, and the
Judiciary appropriation bill, a point of order was sustained against
the following amendment:
---------------------------------------------------------------------------
18. 123 Cong. Rec. 18402, 18403, 95th Cong. 1st Sess.
---------------------------------------------------------------------------
Mr. [Eldon J.] Rudd [of Arizona]: Mr. Chairman, I offer an
amendment.
(The portion of the bill to which the amendment relates is as
follows:)
Sec. 104. It is the sense of the Congress that any new
Panama Canal treaty or agreement must protect the vital
interests of the United States in the Canal Zone and in the
operation, maintenance, property and defense of the Panama
Canal.
The Clerk read as follows:
Amendment offered by Mr. Rudd: Page 14, delete lines 1
through 5 and insert in lieu thereof:
Sec. 104. It is the sense of the Congress that any new
Panama Canal treaty or agreement must not abrogate or vitiate
the traditional interpretation of the treaties of 1903, 1936,
and 1955, with special reference to matters concerning
territorial sovereignty. . . .
Mr. [John M.] Slack [of West Virginia]: Mr. Chairman, I make a
point of order reluctantly, because the amendment deals with
matters not addressed in the bill and is clearly legislation on an
appropriation bill. . . .
Mr. Rudd: . . . This is simply a clarification to section 104.
We have heard many statements here this afternoon and this morning
regarding the desire by many of our distinguished colleagues here,
and I think that they are in favor of retaining the Panama Canal.
All this does is to clarify this language, put it in proper
perspective, so that there will be no question about the retention
of the Panama Canal.
The Chairman: (19) The Chair is prepared to rule.
---------------------------------------------------------------------------
19. Walter Flowers (Ala.).
---------------------------------------------------------------------------
The gentleman from Arizona (Mr. Rudd) offered an amendment to
section 104, which is a sense of the Congress section.
The amendment offered by the gentleman from Arizona (Mr. Rudd)
would change the sense of the Congress legislation permitted to
remain in the bill and would clearly alter it. The gentleman's
amendment would be further legislation on an appropriation bill and
subject to a point of order. The Chair must sustain the point of
order made by the gentleman from West Virginia (Mr. Slack).
CHAPTER 26
Unauthorized Appropriations; Legislation on Appropriation Bills
C. PROVISIONS AS ``CHANGING EXISTING LAW,'' GENERALLY
Sec. 42. District of Columbia
Office of Corporation Counsel; Salary Rates Fixed by Commissioner
Sec. 42.1 A paragraph in a general appropriation bill for the District
of Columbia permitting the use of funds in the bill by the Office
of the Corporation Counsel to retain professional experts at rates
fixed by the commissioner was conceded to be legislation and was
ruled out in violation of Rule XXI clause 2.
On June 18, 1973,(20) during consideration in the
Committee of
[[Page 5918]]
the Whole of the District of Columbia appropriation bill (H.R. 8685),
the following point of order was raised:
---------------------------------------------------------------------------
20. 119 Cong. Rec. 20068, 93d Cong. 1st Sess.
---------------------------------------------------------------------------
Mr. [H. R.] Gross [of Iowa]: Mr. Chairman, I make a point of
order against the language to be found on page 11, lines 5 through
10, as not being a limitation upon an appropriation bill, and not
authorized.
The portion of the bill to which the point of order relates is
as follows:
Sec. 5. Appropriations in this Act shall be available for
services as authorized by 5 U.S.C. 3109 and shall be available
to the Office of the Corporation Counsel to retain the services
of consultants including physicians, diagnosticians,
therapists, engineers, and meteorologists at rates to be fixed
by the Commissioner.
The Chairman: (1) Does the gentleman from Kentucky
desire to be heard on the point of order raised by the gentleman
from Iowa (Mr. Gross)?
---------------------------------------------------------------------------
1. Dante B. Fascell (Fla.).
---------------------------------------------------------------------------
Mr. [William H.] Natcher [of Kentucky]: Mr. Chairman, I should
like to say to the members of the Committee that this is a new
provision that is carried in the bill at this time. This was sent
up from downtown. We at this time, Mr. Chairman, concede the point
of order.
The Chairman: The point of order is sustained.
Mandating Equal Expenditure for all Races
Sec. 42.2 A proposed amendment to the District of Columbia
appropriation bill providing that ``whenever . . . it is proposed
to expend any sum for any thing or service from the benefit of
which members of any race are excluded an equal sum shall be
expended . . . for the benefit . . . of the race so excluded'' was
held to be legislation on an appropriation bill and therefore not
in order.
On Apr. 5, 1946,(2) the Committee of the Whole was
considering H.R. 5990, a District of Columbia appropriation bill. At
one point the Clerk read as follows, and proceedings ensued as
indicated below:
---------------------------------------------------------------------------
2. 92 Cong. Rec. 3222, 3232, 79th Cong. 2d Sess.
---------------------------------------------------------------------------
Amendment offered by Mr. [Clare E.] Hoffman [of Michigan]: On
page 55, after line 5, insert a new section as follows:
``3. Whenever under this bill it is proposed to expend any sum
for any thing or service from the benefit of which members of any
race are excluded, an equal sum shall be expended for things and
services for the benefit of the members of the race so excluded and
in proportion to the percent of the population the members of the
excluded race bear to the whole population of the municipality
where the proposed expenditure is to be made.''
Mr. [John M.] Coffee [of Washington]: Mr. Chairman, I renew the
point of order. I make the point of
[[Page 5919]]
order the amendment is legislation on an appropriation bill
requiring affirmative action by District officials.
The Chairman: (3) The Chair is ready to rule. . . .
---------------------------------------------------------------------------
3. Francis E. Walter (Pa.).
---------------------------------------------------------------------------
The bill now being considered contains no provision for equal
appropriations and there is no authorization to make equal
appropriations.
The Chair therefore feels that it is very clearly legislation,
and sustains the point of order.
Conferring Discretionary Method of Expenditure
Sec. 42.3 Language in a general appropriation bill making funds
available for the District of Columbia Civil War Centennial
Commission for expenses ``by contract or otherwise, as determined
by the Commissioners'' was held to be legislation and not in order.
On June 23, 1960,(4) during consideration in the
Committee of the Whole of a supplemental appropriation bill (H.R.
12740), a point of order was raised against the following provision:
---------------------------------------------------------------------------
4. 106 Cong. Rec. 14086, 86th Cong. 2d Sess.
---------------------------------------------------------------------------
District of Columbia Funds
Operating Expenses
Executive Office
For an additional amount for ``Executive Office'', including
expenses of the District of Columbia Civil War Centennial
Commission and the National Capital Downtown Committee,
Incorporated, by contract or otherwise, as may be determined by the
Commissioners, $47,700.
Mr. [H. R.] Gross [of Iowa]: Mr. Chairman, I rise to make a
point of order.
The Chairman: (5) The gentleman will state it.
---------------------------------------------------------------------------
5. Aime J. Forand (R.I.).
---------------------------------------------------------------------------
Mr. Gross: Mr. Chairman, I make a point of order against the
language appearing on page 3, beginning with line 14 through line
21, as being legislation on an appropriation bill, with particular
reference to the language in line 20 which reads as follows: ``by
contract or otherwise, as may be determined by the Commissioners.''
The Chairman: Does the gentleman from Texas (Mr. Thomas) care
to be heard on the point of order?
Mr. [Albert] Thomas: Mr. Chairman, this is in the normal course
of their duties, and I doubt if the point of order is good.
The Chairman: The Chair is prepared to rule.
After examining the language referred to by the gentleman from
Iowa, it appears to the Chair that it is legislation on an
appropriation bill, subject to a point of order; therefore, the
Chair sustains the point of order.
Setting Maximum Hospital Rates for Treatment of Indigent Patients
Sec. 42.4 Language in a general appropriation bill author
[[Page 5920]]
izing the treatment of indigent patients in hospitals in the
District of Columbia, and setting maximum rates to be charged for
such treatment, was conceded to be legislation and ruled out on a
point of order.
On June 26, 1962, (6) during consideration in the
Committee of the Whole of the District of Columbia appropriation bill
(H.R. 12276), the following point of order was raised:
---------------------------------------------------------------------------
6. 108 Cong. Rec. 11731, 11732, 87th Cong. 2d Sess.
---------------------------------------------------------------------------
Mr. [H. R.] Gross [of Iowa]: Mr. Chairman, I make a point of
order against the following language beginning in line 24 on page
6, and ending in line 2 on page 7: ``and for care and treatment of
indigent patients in institutions, including those under sectarian
control, under contracts to be made by the Director of Public
health;''.
And the following language beginning in line 2 of page 7 and
ending in line 9 of page 7:
Provided, That the outpatient rate under such contracts and
for services rendered by Freedmen's Hospital shall not exceed
$5 per visit and the inpatient rate shall not exceed rates
established by the Commissioners based on audited costs, and
such contract rates and rates for services rendered by
Freedmen's Hospital shall not exceed comparable costs at the
District of Columbia General Hospital.
Leaving in on line 2 of page 7 the dollar sign and figures:
``$66,528,000:''.
Mr. Chairman, I make the point of order that the language I
seek to have stricken is legislation on an appropriation bill. . .
Mr. [William H.] Natcher [of Kentucky]: Mr. Chairman, I have
discussed this matter with my distinguished colleague, the ranking
minority member [Mr. Rhodes]. As pointed out to the Committee a few
moments ago, this is a feature that has been carried in the
District of Columbia appropriation bill for a great number of
years; a provision that the members of the subcommittee do not
favor. I believe, also, that this matter can be worked out after
the bill goes to the other body, and in the conference report we
can work out a provision that will not only meet with the approval
of the committee but also, I think, with that of the distinguished
gentleman from Iowa.
We concede the point of order.
The Chairman: (7) The point of order is conceded.
---------------------------------------------------------------------------
7. Charles M. Price (Ill.).
---------------------------------------------------------------------------
Granting Commissioners Authority to Supervise, Control, and Operate
Building in District of Columbia
Sec. 42.5 Language in the District of Columbia appropriation bill
placing under the commissioners the supervision, control, and
operation of the Police Court Building was held to be legislation
on an appropriation bill.
[[Page 5921]]
On Apr. 2, 1937, (8) during consideration in the
Committee of the Whole of the District of Columbia appropriation bill,
a point of order was raised against the following provision:
---------------------------------------------------------------------------
8. 81 Cong. Rec. 3109, 75th Cong. 1st Sess.
---------------------------------------------------------------------------
For completing construction of a building in Judiciary Square
to house the Police Court of the District of Columbia, including
furniture and equipment, and inspection, $450,000, and the
supervision, control, and operation of said building shall be under
the Commissioners of the District of Columbia, who are authorized
to assign surplus space in said building to other activities of the
municipal government.
Mr. [Jack] Nichols [of Oklahoma]: Mr. Chairman, I make a point
of order against that portion of the last paragraph on page 49
beginning after the word ``control'', in line 20, which reads,
``and operation of said building shall be under the Commissioners
of the District of Columbia, who are authorized to assign surplus
space in said building to other activities of the municipal
government'' for the reason it is legislation and changes the
provisions of existing law.
Mr. [John W.] McCormack [of Massachusetts]: Mr. Chairman, will
the gentleman yield?
Mr. Nichols: I yield to the gentleman from Massachusetts.
Mr. McCormack: Why does not the gentleman include in his point
of order the words ``and the supervision, control, and operation'',
beginning on line 20? In other words, all after the figure
``$450,000.''
Mr. Nichols: Mr. Chairman, I thank the gentleman for the
observation. I modify my point of order to include the language
beginning in line 20 referred to by the gentleman from
Massachusetts.
The Chairman: (9) Does the gentleman from
Mississippi desire to be heard on the point of order?
---------------------------------------------------------------------------
9. Jere Cooper (Tenn.).
---------------------------------------------------------------------------
Mr. [Ross A.] Collins [of Mississippi]: No, Mr. Chairman. I do
not know what we are going to do with the available space there,
but it is, perhaps, all right.
Mr. Nichols: May I state to the gentleman the custodians of the
particular buildings will assign the space in the orderly manner as
they have always done.
The Chairman: Patently, the language referred to is legislation
on an appropriation bill. Therefore, the Chair sustains the point
of order.
Explicit Change in Lawful Policy; Restrictions on Newspaper
Advertisements
Sec. 42.6 Language in the District of Columbia appropriation bill
providing that an appropriation shall not be available for costs of
advertisements in newspapers published outside the District of
Columbia ``notwithstanding the requirement for such advertising
provided by existing law'' was held not in order on a general
appropriation bill.
[[Page 5922]]
On Apr. 2, 1937, (10) during consideration in the
Committee of the Whole of the District of Columbia appropriation bill,
a point of order was raised against the following provision:
---------------------------------------------------------------------------
10. 81 Cong. Rec. 3105, 3106, 75th Cong. 1st Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
For general advertising, authorized and required by law,
and for tax and school notices and notices of changes in
regulations, $7,000: Provided, That this appropriation shall
not be available for the payment of advertising in newspapers
published outside of the District of Columbia, notwithstanding
the requirement for such advertising provided by existing law.
Mr. [Vincent L.] Palmisano [of Maryland]: Mr. Chairman, I make
the point of order to the proviso beginning on line 11, page 13:
Provided, That this appropriation shall not be available
for the payment of advertising in newspapers published outside
of the District of Columbia, notwithstanding the requirement
for such advertising provided by existing law.
I make the point of order that is legislation on an
appropriation bill.
Mr. [Ross A.] Collins [of Mississippi]: Mr. Chairman, the law
provides that all purchases over $1,000 shall be advertised in
newspapers outside the District of Columbia. The purpose of this
amendment is to save the District a little money, and if the
gentleman from Maryland does not want to do that, it suits me.
Mr. Palmisano: Mr. Chairman, it is not that the gentleman from
Maryland does not want to save the District any money. This is a
question of whether or not we are going to permit the Committee on
Appropriations to come in here and change laws that are now on the
statute books. If we are going to permit that in the case of the
District of Columbia, we might as well wipe out all legislative
committees in this House. That is the question involved.
The Chairman: (11) The Chair inquires of the
gentleman from Maryland whether his point of order is made to the
proviso, beginning on line 11 and extending through line 14?
---------------------------------------------------------------------------
11. Jere Cooper (Tenn.).
---------------------------------------------------------------------------
Mr. Palmisano: It is.
The Chairman: The Chair is prepared to rule. The Chair is of
opinion that especially the last part of the proviso, beginning
with the word ``notwithstanding'' clearly waives the provisions of
existing law, and therefore changes existing law and would be
legislation on a general appropriation bill, which is prohibited by
the rules of the House. The Chair, therefore, sustains the point of
order.
CHAPTER 26
Unauthorized Appropriations; Legislation on Appropriation Bills
C. PROVISIONS AS ``CHANGING EXISTING LAW,'' GENERALLY
Sec. 43. Federal Employment
Conditions of Employment--Restricting Employment to Citizens
Sec. 43.1 Provisions in a section of a general appropriation bill
denying the use of funds to pay federal employees in a certain
category, declaring in part that an affidavit
[[Page 5923]]
signed under that section shall be considered prima facie evidence
of fulfilling requirements of the provision, and further imposing
penalties for making a false affidavit were ruled out as
legislation in violation of Rule XXI clause 2.
On Aug. 1, 1973,(12) during consideration in the
Committee of the Whole of a general appropriation bill (H.R. 9590),
points of order were raised seriatim against the four provisos in the
following paragraph:
---------------------------------------------------------------------------
12. 119 Cong. Rec. 27290, 27291, 93d Cong. 1st Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
Sec. 602. Unless otherwise specified and during the current
fiscal year, no part of any appropriation contained in this or
any other Act shall be used to pay the compensation of any
officer or employee of the Government of the United States
(including any agency the majority of the stock of which is
owned by the Government of the United States) whose post of
duty is in continental United States unless such person (1) is
a citizen of the United States, (2) is a person in the service
of the United States on the date of enactment of this Act, who,
being eligible for citizenship, has filed a declaration of
intention to become a citizen of the United States prior to
such date, (3) is a person who owes allegiance to the United
States, or (4) is an alien from Poland or the Baltic countries
lawfully admitted to the United States for permanent residence:
Provided, That for the purpose of this section, an affidavit
signed by any such person shall be considered prima facie
evidence that the requirements of this section with respect to
his status have been complied with: Provided further, That any
person making a false affidavit shall be guilty of a felony,
and, upon conviction, shall be fined not more than $4,000 or
imprisoned for not more than one year, or both: Provided
further, That the above penal clause shall be in addition to,
and not in substitution for, any other provisions of existing
law: Provided further, That any payment made to any officer or
employee contrary to the provisions of this section shall be
recoverable in action by the Federal Government. This section
shall not apply to citizens of the Republic of the Philippines
or to nationals of those countries allied with the United
States in the current defense effort, or to temporary
employment of translators, or to temporary employment in the
field service (not to exceed sixty days) as a result of
emergencies.
Mr. [John D.] Dingell [of Michigan]: Mr. Chairman, I make a
point of order as follows: Line 20, beginning with the word
``Provided,'' at page 31 . . . The language continues to the word
``Provided'' at page 31, line 24, the word ``with'' and the colon.
The point of order is that this is violative of clause 2, rule
XXI, as constituting legislative action in an appropriation bill.
The Chairman: (13) Does the gentleman from Oklahoma
desire to be heard?
---------------------------------------------------------------------------
13. Richard Bolling (Mo.).
---------------------------------------------------------------------------
Mr. [Tom] Steed [of Oklahoma]: I do, Mr. Chairman.
Mr. Chairman, this proviso has been in the bill for many years.
This may
[[Page 5924]]
impose a duty upon the person seeking, but it does not impose any
additional duties on the Government side of it, and it is a strict
limitation, it is a limitation in the sense that it requires only a
type of qualification which is standard.
The Chairman: The Chair is prepared to rule.
The language,
an affidavit signed by such person shall be considered prima
facie evidence . . .
Seems to the Chair clearly to be legislation, and the Chair
sustains the point of order.
Mr. Dingell: Mr. Chairman, I rise to a further point of order.
The Chairman: The gentleman from Michigan will state his point
of order.
Mr. Dingell: Mr. Chairman, I rise to a point of order to page
31, line 24, beginning with ``Provided further,'' down through the
word ``both'' and the colon on page 32, line 2.
The point of order, Mr. Chairman, is that this is again
legislation in an appropriation bill. I would point out to the
Chair that we are creating a new crime by this legislation, which
says:
That any person making a false affidavit shall be guilty of a
felony, and, upon conviction, shall be fined not more than
$4,000 or imprisoned for not more than one year, or both:
Obviously this is a legislative effort by the Committee on
Appropriations.
The Chairman: Does the gentleman from Oklahoma desire to be
heard on the point of order?
Mr. Steed: Mr. Chairman, in view of the ruling of the Chair on
the previous point of order, we concede this point of order.
The Chairman: The point of order is conceded, and the point of
order is sustained.
Mr. Dingell: Mr. Chairman, I raise the same point of order
again as to rule XXI, clause 2, to the words, beginning on page 32,
line 2:
Provided further, That the above penal clause shall be in
addition to, and not in substitution for, any other provisions
of existing law:
I cite again the earlier ruling of the Chair, and the point of
order previously stated.
The Chairman: Does the gentleman from Oklahoma (Mr. Steed)
desire to be heard on the point of order?
Mr. Steed: I do, Mr. Chairman. This is an entirely different
proposition. This is a very obvious limitation.
The Chairman: The Chair is ready to rule.
It would appear to the Chair that this proviso relates to the
language that has already been stricken, and that the same ruling
that applied to the stricken language would apply to it: therefore
the Chair sustains the point of order.
Mr. Dingell: Mr. Chairman, I have a further point of order.
The Chairman: The gentleman from Michigan will state his point
of order.
Mr. Dingell: Mr. Chairman, skipping over to the next ``Provided
further,'' going down to the words, beginning on page 32, line 7:
This section shall not apply to citizens of the Republic of
the Philippines or to natives of those countries allied with
the United States in the current defense effort, or to
temporary employment of translators or to temporary employment
in the
[[Page 5925]]
field service (not to exceed sixty days) as a result of
emergencies.
Mr. Chairman, I make note of the fact that this again
constitutes legislation in an appropriation bill. I point out that
it imposes upon the Government agencies involved the duty to make
findings as to the citizenship of persons involved. Obviously this
is an additional burden which this legislative act would apply. It
again refers, Mr. Chairman, to earlier language which has been
stricken by points of order, and constitutes a hold on those
provisions which have previously been stricken by points of order.
So, Mr. Chairman, I renew my point of order with regard to the
language appearing on page 32, commencing on line 7, with the
words, ``This section'' through the end of the paragraph in line
12.
The Chairman: Does the gentleman from Oklahoma desire to be
heard on the point of order?
Mr. Steed: Mr. Chairman, we concede the point of order.
The Chairman: The point of order is conceded and the point of
order is sustained.
-- Exclusion of Persons Advocating Right to Strike
Sec. 43.2 A provision in a general appropriation bill making it a
felony for a person ``who is a member of an organization of
Government employees that asserts the right to strike against the
Government'' to accept employment the salary or wages for which are
paid from funds contained in such bill was held to be legislation
and not in order.
On May 2, 1951, (14) during consideration in the
Committee of the Whole of the Interior Department appropriation bill
(H.R. 3790), a point of order was raised against the following
provision:
---------------------------------------------------------------------------
14. 97 Cong. Rec. 4741, 82d Cong. 1st Sess.
---------------------------------------------------------------------------
Sec. 301. No part of any appropriation contained in this act,
or of the funds available for expenditure by any corporation
included in this act, shall be used to pay the salary or wages of
any person who engages in a strike against the Government of the
United States or who is a member of an organization of Government
employees that asserts the right to strike against the Government
of the United States [and any such person who accepts] employment
the salary or wages for which are paid from any appropriation or
fund contained in this act shall be guilty of a felony. . . .
Mr. [Henry M.] Jackson of Washington: Mr. Chairman, I make a
point of order against the entire section on the ground it is
legislation on an appropriation bill.
The Chairman: (15) The gentleman from Washington
makes a point of order against the entire section on the ground it
is legislation on an appropriation bill.
---------------------------------------------------------------------------
15. Wilbur D. Mills (Ark.).
---------------------------------------------------------------------------
The Chair sustains the point of order.
[[Page 5926]]
-- Prohibition on Salary Until Security Clearance Certified
Sec. 43.3 An amendment to an appropriation bill providing that no part
of the appropriation shall be used to pay any person employed in
the State Department subsequent to a certain date, until essential
clearance as to loyalty has been certified by the Federal Bureau of
Investigation and the appropriate security committee of the State
Department, was held to be legislation on an appropriation bill.
On Mar. 27, 1946,(16) during consideration in the
Committee of the Whole of the second Defense Department appropriation
bill (H.R. 5890), a point of order was raised against the following
amendment:
---------------------------------------------------------------------------
16. 92 Cong. Rec. 2695, 79th Cong. 2d Sess.
---------------------------------------------------------------------------
Mr. [Richard B.] Wigglesworth [of Massachusetts]: Mr. Chairman,
I offer an amendment.
The Clerk read as follows:
Amendment offered by Mr. Wigglesworth: On page 23, line 16,
after the figures ``$133,456'' strike out the period, insert a
comma, and the following: ``Provided,'' That no part of any
appropriation in this act shall be used to pay the salary or
wage of any person appointed or transferred to the Department
of State after September 1, 1945, until essential clearance as
to loyalty has been certified by the Federal Bureau of
Investigation and the appropriate security committee of the
Department of State.''. . .
Mr. [Clarence] Cannon of Missouri: Mr. Chairman, while the
proposed amendment is in the form of a limitation, it is coupled
with an affirmative direction which amounts to a change of law. For
this reason, although presented in the guise of an exception to the
rule, it is, in effect, legislation on an appropriation bill, and
therefore subject to the point of order.
The Chairman: (17) The Chair is ready to rule.
---------------------------------------------------------------------------
17. Edward J. Hart (N.J.).
---------------------------------------------------------------------------
The amendment as drawn is in the form of a limitation but it
does have in it positive language which gives it the effect of
legislation on an appropriation bill. The Chair, therefore,
sustains the point of order made by the gentleman from Missouri.
Granting Authority to Terminate Employment
Sec. 43.4 Language in a general appropriation bill providing that the
Secretary of State may, in his discretion, terminate the employment
of any employee of the Department of State or of the Foreign
Service whenever he shall deem such termination necessary or
advisable in the interests of the United States, was held to be
legislation on
[[Page 5927]]
an appropriation bill and not to be within the provisions of the
Holman rule.
On Apr. 20, 1950, (18) during consideration in the
Committee of the Whole of a general appropriation bill (H.R. 7786), a
point of order was raised against the following provision:
---------------------------------------------------------------------------
18. 96 Cong. Rec. 5480, 5481, 81st Cong. 2d Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
Sec. 104. Notwithstanding the provisions of section 6 of
the act of August 24, 1912 (37 Stat. 555), or the provisions of
any other law, the Secretary of State may, in his absolute
discretion, during the current fiscal year, terminate the
employment of any officer or employee of the Department of
State or of the Foreign Service of the United States whenever
he shall deem such termination necessary or advisable in the
interests of the United States. . . .
Mr. [Vito] Marcantonio [of New York]: Mr. Chairman, a point of
order. The language of section 104 gives to the Secretary of
State--and I quote from the section--``in his absolute discretion''
power to terminate the employment of any employee. I do not believe
we have ever had legislation in the entire history of this Nation
which contained this language ``absolute discretion.''. . .
Mr. [John] Taber [of New York]: Mr. Chairman, in my opinion
this will result in a saving. It is in accordance with the
provisions of the Holman rule. When the power authorized in this
language is exercised and the Secretary terminates the employment
of any officer or employee in his absolute discretion that will
result in a saving. That will save money and is in order.
The Chairman: (19) . . . The gentleman from New York
(Mr. Marcantonio) has made a point of order against the language
appearing in section 104 on page 46 of the bill on the ground that
it is legislation on an appropriation bill. The Chair has examined
the language. The Chair invites attention to the fact that the
language does confer definite authority and requires certain acts
on the part of the Secretary of State. In response to the argument
offered by the gentleman from New York (Mr. Taber) as to the
application of the Holman rule it is clearly shown by the
precedents and decisions of the House that the saving must be
apparent and definite on its face in the language of the bill in
order for the Holman rule to apply. Certainly an examination of the
language in question clearly shows that any saving would be
speculative. In view of the long line of precedents and decisions
dealing with the question of legislation on an appropriation bill,
which is clearly prohibited under the rules of the House, the Chair
has no alternative other than to sustain the point of order.
---------------------------------------------------------------------------
19. Jere Cooper (Tenn.).
---------------------------------------------------------------------------
``Right to Work'' Amendment
Sec. 43.5 To a bill making appropriations to enable the Works Progress
Administration to continue to provide employment, an amendment
providing ``that no person
[[Page 5928]]
shall be deprived of work . . . because he does not belong . . . to
any organization'' was held to be legislation and not in order.
On Feb. 12, 1941,(20) during consideration in the
Committee of the Whole of a deficiency appropriation bill (H.R. 3204),
a point of order was raised against the following amendment:
---------------------------------------------------------------------------
20. 87 Cong. Rec. 920-24, 77th Cong. 1st Sess.
---------------------------------------------------------------------------
Mr. [Clare E.] Hoffman [of Michigan]: Mr. Chairman, I offer an
amendment.
The Clerk read as follows:
Amendment offered by Mr. Hoffman: On page 3, line 5, after
the figures, insert ``Provided, That no person shall be
deprived of work where work is provided because he does not
belong, refuses to join, or pay dues to any organization.''. .
.
Mr. [Clifton A.] Woodrum of Virginia: Mr. Chairman, I make the
point of order against the amendment that it is legislation on an
appropriation bill.
The Chairman: (1) Does the gentleman from Michigan
(Mr. Hoffman) desire to be heard?
---------------------------------------------------------------------------
1. James M. Barnes (Ill.).
---------------------------------------------------------------------------
Mr. Hoffman: Yes.
Mr. Chairman, this is a limitation, in fact, on the right of a
certain group to prevent this money reaching those for whom it is
appropriated, therefore it is proper.
The Chairman: The Chair is ready to rule. . . .
Rule XXI of the House, referring to general appropriation
bills, provides:
Nor shall any provision in any such bill or amendment
thereto changing existing law be in order.
This being a supplementary appropriation bill, the amendment is
not in order, and the Chair sustains the point of order.
Employment by Judiciary
Sec. 43.6 To a general appropriation bill including funds for the
federal judiciary and placing a limitation on the total salaries
which may be paid by any judge for clerk and secretarial hire, a
provision specifying that without regard to such dollar
limitations, ``each circuit judge may appoint an additional law
clerk at not to exceed grade (GS) 9'' was ruled out as legislation,
no authority being cited to the Chair.
On May 28, 1968,(2) during consideration in the
Committee of the Whole of a general appropriation bill (H.R. 17522),
the following point of order was raised:
---------------------------------------------------------------------------
2. 114 Cong. Rec. 15357, 15358, 90th Cong. 2d Sess.
---------------------------------------------------------------------------
Mr. [H.R.] Gross [of Iowa]: Mr. Chairman, I make a point of
order against the language on page 42, beginning on line 3, which
reads as follows:
Provided further, That without regard to the aforementioned
dollar
[[Page 5929]]
limitations, each circuit judge may appoint an additional law
clerk at not to exceed grade (GS) 9.
Mr. Chairman, I make a point of order against this language on
the ground that it is legislation on an appropriation bill.
Mr. [John J.] Rooney of New York: Mr. Chairman, I maintain that
this is authorized by law. The additional law clerk is most
certainly authorized. The committee inserted this language in the
bill so that they would not hire law clerks at higher grades that
GS-9. It is in the bill to save money or to keep down the amount of
money that would be required to pay these law clerks.
The Chairman: (3) Before the Chair rules on the
point of order, can the gentleman from New York cite to the Chair
the authority the gentleman says is already existing? . . .
---------------------------------------------------------------------------
3. Wayne L. Hays (Ohio).
---------------------------------------------------------------------------
The Chair will state that if the additional clerk is authorized
somewhere in law, this would be a limitation upon the grade at
which the clerk could be appointed. What is sought to be found out
is whether there is existing legislation.
Mr. Gross: I point out, Mr. Chairman, ``without regard to the
aforementioned dollar limitations,'' and so on and so forth. It is
not a limitation.
Mr. Rooney of New York: Mr. Chairman, I am sure this is
authorized. However, we will concede the point of order in the
interest of saving time and bring it back to the House after the
conference. This does not affect the amount of money for these law
clerks.
The Chairman: In view of that statement, the Chair sustains the
point of order.
Establishing Salary Levels
Sec. 43.7 An amendment to an appropriation bill seeking to set levels
for salaries of all officials and employees of the federal
judiciary, not otherwise specifically provided for, was conceded
and held to be legislation on an appropriation bill and not in
order.
On May 15, 1947,(4) during consideration in the
Committee of the Whole of a general appropriation bill (H.R. 3311), a
point of order was raised against the following amendment:
---------------------------------------------------------------------------
4. 93 Cong. Rec. 5385, 80th Cong. 1st Sess.
---------------------------------------------------------------------------
Mr. [John J.] Rooney [of New York]: Mr. Chairman, I offer an
amendment.
The Clerk read as follows:
Amendment offered by Mr. Rooney: On page 66, after line 17,
insert a new paragraph to read as follows:
``Miscellaneous salaries: For salaries of all officials and
employees of the Federal judiciary, not otherwise specifically
provided for, $1,833,500: Provided, That the compensation of
secretaries and law clerks of circuit and district judges
(exclusive of any additional compensation under the Federal
Employees Pay Act of 1945 and any other acts of similar purport
subsequently enacted) shall be fixed by the Director of the
Administrative Office without regard to the Classification Act
of 1923, as amended, except that the salary of a secretary
shall conform with that of the main
[[Page 5930]]
(CAF-4), senior (CAF-5) or principal (CAF-6) clerical grade, or
assistant (CAF-7) or associate (CAF-8) administrative grade, as
the appointing judge shall determine, and the salary of a law
clerk shall conform with that of the junior (P-1), assistant
(P-2), associate (P-3), full (P-4), or senior (P-5)
professional grade, as the appointing judge shall determine,
subject to review by the judicial council of the circuit if
requested by the Director, such determination by the judge
otherwise to be final: Provided further, That (exclusive of any
additional compensation under the Federal Employees Pay Act of
1945 and any other acts of similar purport subsequently
enacted) the aggregate salaries paid to secretaries and law
clerks appointed by one judge shall not exceed $6,500 per
annum, except in the case of the senior circuit judge of each
circuit and senior district judge of each district having five
or more district judges, in which case the aggregate salaries
shall not exceed $7,500.''
Mr. [Karl] Stefan [of Nebraska]: Mr. Chairman, I make a point
of order against the amendment offered by the gentleman from New
York [Mr. Rooney] on the ground that it is legislation on an
appropriation bill. . . .
The Chairman: (5) Does the gentleman from New York
[Mr. Rooney] desire to be heard on the point of order?
---------------------------------------------------------------------------
5. Carl T. Curtis (Nebr.).
---------------------------------------------------------------------------
Mr. Rooney: No, Mr. Chairman; I must concede the point of
order. There is no authorization in law for this expenditure,
although it has been in this bill year after year for many years.
The Chairman: The point of order is conceded. The point of
order is sustained.
Sec. 43.8 Language in a general appropriation bill providing additional
compensation for secretaries and law clerks to district and circuit
judges was conceded and held to be legislation on an appropriation
bill and not in order.
On Mar. 16, 1945,(6) during consideration in the
Committee of the Whole of a general appropriation bill (H.R. 2603), a
point of order was raised against the following provision:
---------------------------------------------------------------------------
6. 91 Cong. Rec. 2376, 2377, 79th Cong. 1st Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
Miscellaneous salaries: For salaries of all officials and
employees of the Federal judiciary, not otherwise specifically
provided for, $1,400,000: Provided, That the compensation of
secretaries and law clerks of circuit and district judges
(exclusive of any temporary additional compensation) shall be
fixed by the Director of the Administrative Office without
regard to the Classification Act of 1923, as amended, except
that the salary of a secretary shall conform with that of the
main (CAF-4), senior (CAF-5), or principal (CAF-6) clerical
grade, or assistant (CAF-7), or associate (CAF-8)
administrative grade, as the appointing judge shall determine,
and the salary of a law clerk shall conform with that of the
junior (P-1), assistant (P-2), associate (P-3), full (P-4), or
senior (P-5) professional grade, as the appointing judge shall
determine, subject to review by the judicial council of the
circuit if requested by the Director, such determination by the
judge otherwise to be final: . . .
Mr. [Edward H.] Rees of Kansas: Mr. Chairman, I make the point
of
[[Page 5931]]
order against the language on page 83, line 11, beginning with the
word ``provided'' down through the remainder of page 84, to and
including the word ``final'', page 84, line 1, on the ground that
it is legislation on an appropriation bill and not authorized by
law.
Mr. [Malcolm C.] Tarver [of Georgia]: Mr. Chairman, to amplify
the point of order raised by the gentleman from Kansas, I make the
point of order against the entire paragraph that it is legislation
on an appropriation bill. . . .
The Chairman: (7) . . . The Chair is particularly
interested in whether or not the paragraph is authorized by law.
---------------------------------------------------------------------------
7. Wilbur D. Mills (Ark.).
---------------------------------------------------------------------------
Mr. [Louis C.] Rabaut [of Michigan]: Mr. Chairman, we will have
to concede the point of order.
The Chairman: Does the gentleman from Georgia insist on his
point of order?
Mr. Tarver: Certainly, Mr. Chairman.
The Chairman: The Chair is constrained to rule first upon the
point of order made by the gentleman from Georgia, in view of the
fact that it goes to the language of the entire paragraph. The
Chair must hold that the language is subject to a point of order
and, therefore, sustains the point of order made by the gentleman
from Georgia.
Providing New Position
Sec. 43.9 In a bill appropriating funds for United States participation
in the New York World's Fair, a provision for a ``United States
Commissioner'' for the fair, to be appointed by the President at a
rate not to exceed $19,500 per annum, was conceded to be
legislation and was ruled out on a point of order.
On Apr. 2, 1962,(8) during consideration in the
Committee of the Whole of a supplemental appropriation bill (H.R.
11038), a point of order was raised against the following provision:
---------------------------------------------------------------------------
8. 108 Cong. Rec. 5932, 5933, 87th Cong. 2d Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
General Administration
Participation in New York World's Fair
For expenses necessary to provide for United States
participation in the New York World's Fair, as authorized by
the provisions of the Act of September 21, 1961 (75 Stat. 527),
including compensation of a United States Commissioner, who
shall be appointed by the President, at a rate not to exceed
$19,500 per annum, and services as authorized by section 15 of
the Act of August 2, 1946 (5 U.S.C. 55a), but at rates for
individuals not to exceed $75 per diem, $17,000,000, to remain
available until expended. . . .
Mr. [H. R.] Gross [of Iowa]: A point of order, Mr. Chairman.
The Chairman: (9) The gentleman will state it.
---------------------------------------------------------------------------
9. Oren Harris (Ark.).
---------------------------------------------------------------------------
Mr. Gross: I make a point of order against the following
language beginning in line 16 and ending in line 18:
[[Page 5932]]
Including compensation of a United States Commissioner, who
shall be appointed by the President, at a rate not to exceed
$19,500 per annum,
I make the point of order that this is legislation on an
appropriation bill, and is so stated on page 9 of the report of the
committee accompanying the bill.
The Chairman: Does the gentleman from Texas wish to be heard on
the point of order?
Mr. [Albert] Thomas [of Texas]: Mr. Chairman, the point of
order is good.
The agency states that this position would be considered in
addition to the 10 persons authorized to be employed without regard
to the provisions of the Classification Act.
The act itself sets up 10 positions. What makes it subject to a
point of order is that the agency admits that it is not 1 of the 10
but is the 11th job and so it, as the 11th job, is subjected to a
point of order.
The Chairman: The gentleman concedes the point of order. The
point of order is sustained.
Authorizing Employment of Specialists at Salary Levels To Be Authorized
by the Department Head
Sec. 43.10 Language in an appropriation bill providing for employment
in the Customs Division, Department of Justice, ``of special
attorneys and experts at such rates of compensation as may be
authorized or approved by the Attorney General or his assistant,''
was conceded and held to be legislation conferring new authority on
an executive official.
On Mar. 16, 1945,(10) during consideration in the
Committee of the Whole of a general appropriation bill (H.R. 2603), a
point of order was raised against the following provision:
---------------------------------------------------------------------------
10. 91 Cong. Rec. 2353, 79th Cong. 1st Sess.
---------------------------------------------------------------------------
Salaries and expenses, Customs Division: For necessary
expenses, including travel expenses, purchase and exchange of
lawbooks and books of reference, and employment of special
attorneys and experts at such rates of compensation as may be
authorized or approved by the Attorney General or his
Administrative Assistant, $146,000.
Mr. [Francis H.] Case of South Dakota: Mr. Chairman, a point of
order.
The Chairman: (11) The gentleman will state it.
---------------------------------------------------------------------------
11. Wilbur D. Mills (Ark.).
---------------------------------------------------------------------------
Mr. Case of South Dakota: Mr. Chairman, I make a point of order
against the language beginning in line 10 on page 38 and continuing
down into line 13, which reads as follows: ``and employment of
special attorneys and experts at such rates of compensation as may
be authorized or approved by the Attorney General or his
Administrative Assistant,'' on the ground that that is legislation
in an appropriation bill.
Mr. [Louis C.] Rabaut [of Michigan]: Mr. Chairman, I concede
the point of order.
[[Page 5933]]
The Chairman: The point of order is sustained.
Sec. 43.11 Language in an appropriation bill providing for employment
in the Lands Division, Department of Justice, of experts ``at such
rates of compensation as may be authorized or approved by the
Attorney General'' was conceded and held to be legislation.
On Mar. 16, 1945,(12) during consideration in the
Committee of the Whole of a general appropriation bill (H.R. 2603), a
point of order was raised against the following provision:
---------------------------------------------------------------------------
12. 91 Cong. Rec. 2354, 79th Cong. 1st Sess. Id. at p. 2362.
---------------------------------------------------------------------------
Salaries and expenses, Lands Division: For personal services in
the District of Columbia and for other necessary expenses,
including travel expenses, employment of experts at such rates of
compensation as may be authorized or approved by the Attorney
General, stenographic reporting services by contract, and notarial
fees or like services, $3,400,000.
Mr. [John] Taber [of New York]: Mr. Chairman, I make a point of
order against the language beginning in line 17, including all of
the language in that line and through the words ``Attorney
General'' in line 18.
The Chairman: (13) Beginning with the word ``at'' in
line 17, and ending with the word ``General'' in line 18?
---------------------------------------------------------------------------
13. Wilbur D. Mills (Ark.).
---------------------------------------------------------------------------
Mr. Taber: That is correct; on the ground it is legislation on
an appropriation bill.
Mr. [Louis C.] Rabaut [of Michigan]: Mr. Chairman, we concede
the point of order.
The Chairman: The point of order is sustained.
Pay of Witnesses
Sec. 43.12 Language in an appropriation bill providing funds to be
available as compensation and expenses of witnesses or informants
as may be authorized or approved by the Attorney General ``or his
administrative assistant'' was conceded and held to be legislation
as a new delegation of authority.
On Mar. 16, 1945,(14) during consideration in the
Committee of the Whole of a general appropriation bill (H.R. 2603), a
point of order was raised against the following provision:
---------------------------------------------------------------------------
14. 91 Cong. Rec. 2363, 79th Cong. 1st Sess.
---------------------------------------------------------------------------
Fees of witnesses: For expenses, mileage, and per diems of
witnesses and for per diems in lieu of subsistence, such payments
to be made on the certification of the attorney for the United
States and to be conclusive as provided by section 846, Revised
Statutes (28 U.S.C. 577), $700,000: Provided, That not to exceed
$25,000 of this amount shall be available for such
[[Page 5934]]
compensation and expenses of witnesses or informants as may be
authorized or approved by the Attorney General or his
administrative assistant, which approval shall be conclusive:
Provided further, That no part of the sum herein appropriated shall
be used to pay any witness more than one attendance fee for any one
calendar day, which fee shall not exceed $1.50 except in the
District of Alaska: Provided further, That whenever an employee of
the United States performs travel in order to appear as a witness
on behalf of the United States in any case involving the activity
in connection with which such person is employed, his travel
expenses in connection therewith shall be payable from the
appropriation otherwise available for the travel expenses of such
employee.
Mr. [Robert F.] Jones [of Ohio]: Mr. Chairman, I make the point
of order against the language appearing on page 43, line 5, reading
``or his administrative assistant'' on the ground that it is
legislation on an appropriation bill.
Mr. [Louis C.] Rabaut [of Michigan]: Mr. Chairman, we concede
the point of order. May I say that the appropriation for this item
in 1936 was $2,100,000. The amount suggested in this bill for 1946
is $750,000. This will bring to the attention of the Committee the
savings that have been attempted to be made by the Committee on
Appropriations.
The Chairman: (15) The point of order is sustained.
---------------------------------------------------------------------------
15. Wilbur D. Mills (Ark.).
---------------------------------------------------------------------------
Authorizing Employment and Specifying Grade Level
Sec. 43.13 Language in a general appropriation bill providing for
positions of employment in certain grades, in addition to the
number authorized in existing law, was conceded and held to be
legislation and not in order.
On May 11, 1959,(16) during consideration in the
Committee of the Whole of the independent offices appropriation bill
(H.R. 7040), a point of order was raised against the following
provision:
---------------------------------------------------------------------------
16. 105 Cong. Rec. 7904, 7905, 86th Cong. 1st Sess. See also 104 Cong.
Rec. 9065, 85th Cong. 2d Sess., May 20, 1958.
---------------------------------------------------------------------------
For necessary expenses of the Civil Aeronautics Board,
including contract stenographic reporting services; employment of
temporary guards on a contract or fee basis; hire, operation,
maintenance, and repair of aircraft; hire of passenger motor
vehicles; and services as authorized by section 15 of the Act of
August 2, 1946 (5 U.S.C. 55a), at rates for individuals not to
exceed $50 per diem; $6,925,000: Provided, That the Chairman is
authorized without regard to any other provision of law, to place
five General Schedule positions in the following grades: one in
grade GS-18, one in grade GS-17, and three in grade GS-16, and such
positions shall be in addition to positions previously allocated to
this agency. . . .
Mr. [H. R.] Gross [of Iowa]: Mr. Chairman, I make the point of
order against the language contained in the bill beginning on line
11 through line 16, page 4, as being legislation on an
[[Page 5935]]
appropriation bill. Mr. Chairman, it may well be that the Civil
Aeronautics Board needs more super grades, but this is not the way
to get it.
The Chairman: (17) Does the gentleman from Texas
desire to be heard on the point of order?
---------------------------------------------------------------------------
17. Frank N. Ikard (Tex.).
---------------------------------------------------------------------------
Mr. [Albert] Thomas [of Texas]: Mr. Chairman, I oppose the
point of order. Let me make this explanation to my distinguished
friend. You will recall that this language was put in the bill and
thoroughly argued and debated last year. It was covered by a rule,
you remember that, only it was for 10 of these jobs, and the Civil
Service Commission, through some misunderstanding, only granted 5
of them. Now, the same language was in for FAA, and they were
granted those 10. . . .
Mr. Gross: I must insist on my point of order in protection of
the committee and in protection of the Civil Service Commission.
Mr. Thomas: I oppose the point of order because the paragraph
was read.
The Chairman: The Chair thinks the gentleman from Iowa was
within his rights to make the point of order. He observed the
gentleman standing when unanimous consent was granted to go back to
the previous section.
Mr. Thomas: Well, the point of order is good, then. We admit
it, then.
The Chairman: The Chair sustains the point of order.
Providing Civil Service Rating for Officer
Sec. 43.14 A provision in the District of Columbia appropriation bill
providing a GS-16 rating for the budget officer was conceded to be
legislation and held not in order.
On Mar. 28, 1952,(18) during consideration in the
Committee of the Whole of the District of Columbia appropriation bill
(H.R. 7216), a point of order was raised against the following
provision:
---------------------------------------------------------------------------
18. 98 Cong. Rec. 3137, 82d Cong. 2d Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
Sec. 9. Appropriations in this act shall be available for
personal services including under the executive office the
budget officer in GS-16 and, when authorized by the
Commissioners or by the purchasing officer and the auditor,
acting for the Commissioners, printing and binding may be
performed by the District of Columbia Division of Printing and
Publications without reference to fiscal-year limitations.
Mr. [John] Taber [of New York]: Mr. Chairman, I make a point of
order against the language in lines 18 and 19 on page 45, as
follows: ``including under the executive office the budget officer
in GS-16 and,'' that it is legislation upon an appropriation bill
and provides for paying a higher salary than the law under which
the District of Columbia operates allows.
The Chairman: (19) Does the gentleman from Kentucky
(Mr. Bates) wish to be heard on the point of order?
---------------------------------------------------------------------------
19. Mike Mansfield (Mont.).
---------------------------------------------------------------------------
Mr. [Joe B.] Bates of Kentucky: We concede the point of order,
Mr. Chairman.
[[Page 5936]]
The Chairman: The gentleman concedes the point of order. The
point of order is sustained.
Exempting Certain Persons From Employment Statutes
Sec. 43.15 Language in an appropriation bill exempting persons
appointed to part time employment as members of a civil service
loyalty board from application of certain statutes was held to be
legislation and not in order.
On Mar. 20, 1957,(20) during consideration in the
Committee of the Whole of a general appropriation bill (H.R. 6070), the
following point of order was raised:
---------------------------------------------------------------------------
20. 103 Cong. Rec. 4046, 85th Cong. 1st Sess.
---------------------------------------------------------------------------
Mr. [H. R.] Gross [of Iowa]: Mr. Chairman, I make the point of
order against the language beginning at line 23, page 3, and
running through line 4 on page 4 reading as follows:
Provided further, That nothing in sections 281 or 283 of
title 18, United States Code, or in section 190 of the Revised
Statutes (5 U.S.C. 99) shall be deemed to apply to any person
because of appointment for part-time or intermittent service as
a member of the International Organizations Employees Loyalty
Board in the Civil Service Commission as established by
Executive Order 10422, dated January 9, 1953, as amended.
I make the point of order on the ground that this language
constitutes legislation on an appropriation bill.
The Chairman: (1) The Chair sustains the point of
order.
---------------------------------------------------------------------------
1. Frank N. Ikard (Tex.).
---------------------------------------------------------------------------
Reduction of Personnel
Sec. 43.16 To a general appropriation bill, an amendment providing that
in reducing personnel the determination as to which employees shall
be retained shall be made by the head of the agency concerned was
held to be legislation and not in order.
On June 28, 1952,(2) during consideration in the
Committee of the Whole of a supplemental appropriation bill (H.R.
8370), a point of order was raised against the following amendment:
---------------------------------------------------------------------------
2. 98 Cong. Rec. 8503, 82d Cong. 2d Sess. No arguments were here
raised as to possible application of the Holman rule, which is
discussed in Sec. Sec. 4 and 5, supra.
---------------------------------------------------------------------------
Mr. [Abraham A.] Ribicoff [of Connecticut]: Mr. Chairman, I
offer an amendment to the amendment.
The Clerk read as follows:
Amendment offered by Mr. Ribicoff to the amendment offered
by Mr. Jensen: After (b), No. 3, add a new paragraph as
follows:
``4. That 90 days after the enactment of this act, the
number of civilian employees who are United States citizens,
receiving compensation or allowances from the administrative
expense appropriations provided by this act, employed in the
United States and overseas by or assigned
[[Page 5937]]
to the Mutual Security Agency . . . shall be in the aggregate
at least 15 percent less than the number so employed or
assigned on June 1, 1952 . . . Provided further, That after the
Director has determined the reduction to be effected in each
agency, the determination as to which individual employees
shall be retained shall be made by the head of the agency
concerned.'' . . .
The Chairman: (3) Does the gentleman from Virginia
make his point of order?
---------------------------------------------------------------------------
3. Francis E. Walter (Pa.).
---------------------------------------------------------------------------
Mr. [J. Vaughan] Gary [of Virginia]: Yes. Mr. Chairman, as I
understand the amendment, it leaves the discharge of employees entirely
to the Administrator, which contravenes existing laws with reference to
veterans' preference and also the civil-service laws. It is
legislation; it contravenes existing legislation. . . .
The Chairman: The Chair is ready to rule. Part of the language
of the amendment offered by the gentleman from Connecticut, after
the proviso, reads:
That after the Director has determined the reduction to be
effected in each agency, the determination as to which
individual employees shall be retained shall be made by the
head of the agency concerned.
This portion of the amendment does, in the opinion of the
Chair, alter the civil-service laws and laws relating to veterans'
preferences, and therefore constitutes legislation on an
appropriation bill. The point of order is sustained.
Establishing Level of Salary
Sec. 43.17 A provision in a general appropriation bill that an
appropriation shall be available for compensation of the Director
of Defense Mobilization at the rate of $22,500 per annum was
conceded and held to be legislation and stricken by the point of
order.
On June 28, 1952,(4) During consideration in the
Committee of the Whole of a supplemental appropriation bill (H.R.
8370), a point of order was raised against the following provision:
---------------------------------------------------------------------------
4. 98 Cong. Rec. 8504, 82d Cong. 2d Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
Chapter X
Emergency Agencies
Executive Office of the President
office of defense mobilization
For expenses necessary for the Office of Defense
Mobilization, including compensation of the Director of Defense
Mobilization, at the rate of $22,500 per annum; printing and
binding without regard to section 89 of the act of January 12,
1895, as amended (44 U.S.C. 213); hire of passenger-motor
vehicles; reimbursement of the General Services Administration
for security guard service; not to exceed $5,000 for emergency
and extraordinary expenses, to be expended under the direction
of the Director for such purposes as he deems proper, and his
determination thereon shall be final and conclusive; and
expenses of attendance at meetings concerned with the purposes
of
[[Page 5938]]
this appropriation; $1,000,000: Provided, That contracts under
this appropriation for temporary or intermittent services as
authorized by section 15 of the act of August 2, 1946 (5 U.S.C.
55a), may be renewed annually.
Mr. [Gerald R.] Ford [Jr., of Michigan]: Mr. Chairman, I make a
point of order against the language on page 37, line 9, which
reads, 'at the rate of $22,500 per annum.' It is legislation on an
appropriation bill.
Mr. [Jamie L.] Whitten [of Mississippi]: Mr. Chairman, we
concede the point of order.
The Chairman: (5) The point of order is sustained.
---------------------------------------------------------------------------
5. Francis E. Walter (Pa.).
---------------------------------------------------------------------------
Setting Salary of Commissioner of Public Buildings
Sec. 43.18 Language in the independent offices appropriation bill
fixing the salary of the Commissioner of Public Buildings at
$10,000 per annum was ruled out as legislation on an appropriation
bill and not in order.
On Feb. 17, 1943,(6) during consideration in the
Committee of the Whole of the independent offices appropriation bill
(H.R. 1762), a point of order was raised against the following
provision:
---------------------------------------------------------------------------
6. 89 Cong. Rec. 1055, 78th Cong. 1st Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
General administrative expenses: For architectural,
engineering, mechanical, administrative, clerical, and other
personal services, including the salary of the Commissioner of
Public Buildings at $10,000 per annum. . . .
Mr. H. Carl Andersen [of Minnesota]: Mr. Chairman, a point of
order.
The Chairman: (7) The gentleman will state it.
---------------------------------------------------------------------------
7. William M. Whittington (Miss.).
---------------------------------------------------------------------------
Mr. H. Carl Andersen: I make a point of order, Mr. Chairman,
against the language on page 17, line 15, beginning with the word
``including'' and ending with the word ``annum'' in line 16, the
language reading ``including the salary of the Commissioner of
Public Buildings at $10,000 per annum,'' upon the ground that that
particular wording is legislation upon an appropriation bill and is
not authorized by law.
The Chairman: The gentleman objects to the language beginning
in line 15, after the word ``services''?
Mr. H. Carl Andersen: After the word ``services'' and including
the word ``annum'' in line 16.
Mr. [Clifton A.] Woodrum [of Virginia]: Mr. Chairman, the item
had the unanimous support of the subcommittee, but it is subject to
a point of order.
The Chairman: The point of order is sustained.
Limitation on Average Salary
Sec. 43.19 To an appropriation bill, an amendment in the form of a
limitation on the average salary in cases
[[Page 5939]]
``where separate agencies have been set up under the Defense
Production Act or the Civilian Defense Act,'' was held to be
legislation on an appropriation bill and not in order.
On Aug. 20, 1951,(8) During consideration in the
Committee of the Whole of a supplemental appropriation bill (H.R.
5215), a point of order was raised against the following amendment:
---------------------------------------------------------------------------
8. 97 Cong. Rec. 10409, 82d Cong. 1st Sess.
---------------------------------------------------------------------------
Mr. [Ben F.] Jensen [of Iowa]: Mr. Chairman, I offer an
amendment which I send to the desk.
The Clerk read as follows:
Amendment offered by Mr. Jenson: Page 44, line 10, insert a
new section as follows:
``None of the funds provided by this act shall be used to
pay employees at an average rate in excess of that paid from
the regular appropriations provided to the departments
concerned in the regular 1952 appropriation bills. Provided
further, That where separate agencies have been set up under
the Defense Production Act or the Civilian Defense Act, such
average salary shall not exceed $4,500 per annum.
Mr. [Clarence] Cannon [of Missouri]: Mr. Chairman, I make the
point of order that the amendment is legislation on an
appropriation bill. It proposes to fix salaries and that is
manifestly legislation and not in order.
Mr. Jensen: Mr. Chairman, I would like to be heard on the point
of order.
This amendment, Mr. Chairman, is purely and simply a limitation
on the amount of money that may be paid to Federal employees. In
the regular agencies of Government employees receive an average of
about $3,700 per annum. This simply limits other employees to a
minimum. I believe the amendment is germane because it does not
increase the authority of any agency which has appropriations in
this act.
The Chairman: (9) The Chair is ready to rule.
---------------------------------------------------------------------------
9. Edward J. Hart (N.J.).
---------------------------------------------------------------------------
In the opinion of the Chair that section of the amendment
beginning after the word ``further'' and especially that part which
seeks to set a maximum upon the salaries which may be paid is
clearly not a limitation but is legislation, and, therefore,
subject to a point of order.
Limit on Number of Employees
Sec. 43.20 An amendment to the Interior Department appropriation bill
limiting the appropriation for administrative personal services of
the Bureau of Reclamation and providing further that the total
number of employees in the bureau holding certain appointments
shall not exceed 3,500 at any one time during the current fiscal
year, was held to be legislation on an appropriation bill and not
in order.
[[Page 5940]]
On Mar. 30, 1949,(10) during consideration in the
Committee of the Whole of the Interior Department appropriation bill
(H.R. 3838), a point of order was raised against the following
amendment:
---------------------------------------------------------------------------
10. 95 Cong. Rec. 3528, 3529, 81st Cong. 1st Sess.
---------------------------------------------------------------------------
Mr. [Ben F.] Jensen [of Iowa]: Mr. Chairman, I offer an
amendment.
The Clerk read as follows:
Amendment offered by Mr. Jensen: On page 36, line 13, after
``work'' and before the period insert the following: ``Provided
further, That not to exceed $50,000,000 of appropriations
available for expenditure by the Bureau of Reclamation during
the current fiscal year shall be used for administrative
personal services and other personal services; Provided
further, That the total number of employees in the Bureau of
Reclamation holding permanent, temporary, or other appointments
in grades CAF-9 and P-3, or both, shall not exceed 3,500 at any
one time during the current fiscal year.''
Mr. [Henry M.] Jackson of Washington: Mr. Chairman, I make the
point of order against the amendment that it is legislation on an
appropriation bill. . . .
The Chairman: (11) The Chair is prepared to rule.
---------------------------------------------------------------------------
11. Jere Cooper (Tenn.).
---------------------------------------------------------------------------
The gentleman from Iowa offers an amendment, which the Clerk
has reported, against which the gentleman from Washington makes a
point of order on the ground that it contains legislation on an
appropriation bill, in violation of the rules of the House.
The Chair has examined the amendment with some degree of care.
The gentleman from Iowa points out that the amendment is only a
limitation on an appropriation bill. The first proviso contained in
the amendment probably meets the description given by the gentleman
from Iowa. If the amendment contained only the first proviso, the
Chair would be inclined to agree that it is a limitation on an
appropriation bill. However, the Chair invites attention to the
second proviso contained in the amendment, which does not make any
reference to a limitation of funds but seeks to control the number
of employees that may be used in a department, and also has
reference to the Classification Act and other matters which the
Chair thinks very clearly constitute legislation. Therefore, the
Chair sustains the point of order.
Repealing Limit on Salaries and Expenses
Sec. 43.21 A provision in an appropriation bill repealing a legislative
provision in a prior appropriation law that certain expenditures
during the fiscal year 1939 by the National Bituminous Coal
Commission ``shall not exceed an amount equal to the aggregate
receipts covered into the Treasury under the provisions of'' a
specified statute was conceded to be legislation on an
appropriation bill and consequently was held not in order.
[[Page 5941]]
On Mar. 22, 1939,(12) During consideration in the
Committee of the Whole of a deficiency appropriation bill (H.R. 5219),
a point of order was raised against the following provision:
---------------------------------------------------------------------------
12. 84 Cong. Rec. 3123, 76th Cong. 1st Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
The paragraph in the Second Deficiency Appropriation Act,
fiscal year 1938, under the caption ``National Bituminous Coal
Commission,'' is hereby amended by striking out the following
proviso: ``Provided, That expenditures during the fiscal year
1939 under this head and under the head `Salaries and expenses,
office of the Consumers' Counsel, National Bituminous Coal
Commission,' shall not exceed an amount equal to the aggregate
receipts covered into the Treasury under the provisions of
section 3 of the Bituminous Coal Act of 1937.''
Mr. [J. William] Ditter [of Pennsylvania]: Mr. Chairman, I make
the point of order against the paragraph that it is legislation on
an appropriation bill.
Mr. [Clifton A.] Woodrum of Virginia: Mr. Chairman, I concede
the point of order.
The Chairman: (13) The point of order of the
gentleman from Pennsylvania is conceded by the gentleman from
Virginia, and is therefore sustained.
---------------------------------------------------------------------------
13. William P. Cole, Jr. (Md.).
---------------------------------------------------------------------------
Denial of Status to Aliens Not Holman Retrenchment
Sec. 43.22 Language in an appropriation bill providing ``that no alien
employed on the Canal Zone may secure United States civil-service
status,'' was held to be legislation on an appropriation bill and
not within the exception of the Holman rule.
On July 2, 1947,(14) During consideration in the
Committee of the Whole of the War Department civil functions
appropriation, a point of order was raised against a provision, as
follows:
---------------------------------------------------------------------------
14. 93 Cong. Rec. 8171, 8172, 80th Cong. 1st Sess.
---------------------------------------------------------------------------
Mr. [Vito] Marcantonio [of New York]: Mr. Chairman, I make a
point of order against the language on page 17, line 18,
subdivision (7), ``that no alien employed on the Canal Zone may
secure United States civil-service status,'' is legislation on an
appropriation bill in that it clearly changes existing law.
The existing law, Mr. Chairman, is found in the treaty which
was signed between the Republic of Panama and the Government of the
United States. The treaty was ratified by the Senate of the United
States in 1939. . . .
In February of this year an Executive order was issued by the
President modifying the civil-service rules. One portion of that
Executive order distinctly permits Panamanians to take civil
service examinations and be enrolled in the United States Civil
Service. Consequently, this language against which I have raised a
point of order forbids Panamanian citizens from securing civil-
service status.
[[Page 5942]]
Thus, it changes the law as set forth in the treaty and changes the
law as set out in the Executive order. It is clearly legislation on
an appropriation bill.
Mr. [Francis H.] Case of South Dakota: Mr. Chairman, if I may
be heard on the point of order, the first part of that section
reads as follows:
No part of any appropriation contained in this act shall be
used directly or indirectly, except for temporary employment in
case of emergency, for the payment of any civilian for services
rendered by him on the Canal Zone while occupying a skilled,
technical, clerical, administrative, executive, or supervisory
position unless such person is a citizen of the United States
of America or of the Republic of Panama: Provided, however--
Then going to subdivision (7)--
that no alien employed on the Canal Zone may secure United
States civil-service status.
Under the Holman rule, even legislation on an appropriation
bill is permitted if it succeeds in the reduction of an
expenditure. If aliens are to be given United States civil-service
status, it will increase the liability of the United States for the
payment of civil-service retirement and other provisions of that
sort. Consequently, it seems to me that in that sense the inclusion
of this language is a protection of the Treasury of the United
States and may be permissible under the Holman rule. Clause 7, of
course, is directly related to the ``provided, however,'' and the
language of limitation in the first part of the section.
Mr. [John E.] Rankin [of Mississippi]: Mr. Chairman, I would
like to call the Chairman's attention to the fact that an act of
Congress takes precedence over a treaty or even an Executive order
in the form of a treaty. So this language is clearly in order.
Congress has the right to enact this legislation.
The Chairman: (15) The Chair is ready to rule. So
far as the remark just made by the gentleman from Mississippi is
concerned, as the Chair remembers, it is in the last analysis an
act of Congress, whether it be a treaty or whether it be a law.
Therefore, that remark is not germane to the question now before
the Committee.
---------------------------------------------------------------------------
15. Earl C. Michener (Mich.).
---------------------------------------------------------------------------
As far as the statement of the gentleman from South Dakota [Mr.
Case] is concerned, regarding the Holman rule, at most, this
suggests that there might be a saving; there is the possibility of
a saving. The Holman rule is very clear that legislation must in
its language show an absolute saving. Therefore, that point would
not be of any value in sustaining the position which the gentleman
takes.
Section 7 provides that no alien employed on the Canal Zone may
secure United States civil-service status. So far as the Chair has
been advised, there is no law anywhere providing for that very
thing, excepting this legislation found in an appropriation bill.
The Chair therefore sustains the point of order.
Defining Personal Liability of Federal Employees
Sec. 43.23 Language in the Agriculture Department appropriation bill
providing that
[[Page 5943]]
employees of the United States on whose certificate or approval
loans are made shall not be liable for loss by fraud, if the
Governor of the Farm Credit Administration determines that such
employee has exercised reasonable care in the circumstances, was
conceded to be legislation on an appropriation bill and held not in
order.
On Apr. 19, 1943,(16) during consideration in the
Committee of the Whole of the Agriculture Department appropriation bill
(H.R. 2481), a point of order was raised against the following
provision:
---------------------------------------------------------------------------
16. 89 Cong. Rec. 3591, 78th Cong. 1st Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
Farmers' crop production and harvesting loans: For loans to
farmers under the act of January 29, 1937 . . . Provided, That
no employee of the United States on whose certificate or
approval loans under said act of January 29, 1937, as amended,
or other acts of the same general character, are or have been
made, shall be held personally liable for any loss or
deficiency occasioned by the fraud or misrepresentation of
applicants or borrowers, if the Governor of the Farm Credit
Administration shall determine that such employee has exercised
reasonable care in the circumstances, and has complied with the
regulations of the Farm Credit Administration in executing such
certificate or giving such certificate or giving such approval.
. . .
Mr. [Hampton P.] Fulmer [of South Carolina]: Mr. Chairman, I
make a point of order.
The Chairman: (17) The gentleman will state it.
---------------------------------------------------------------------------
17. William M. Whittington (Miss.).
---------------------------------------------------------------------------
Mr. Fulmer: I make the point of order against the language on
page 87, beginning with line 1, down to and including line 16, that
it is legislation on an appropriation bill not authorized by law.
Mr. [Malcolm C.] Tarver [of Georgia]: Mr. Chairman, the point
of order is conceded.
The Chairman: The point of order is sustained.
CHAPTER 26
Unauthorized Appropriations; Legislation on Appropriation Bills
C. PROVISIONS AS ``CHANGING EXISTING LAW,'' GENERALLY
Sec. 44. Congressional Salaries and Allowances
Congressional Salaries
Sec. 44.1 For a limiting amendment to a general appropriation bill, a
substitute amendment increasing the salary of Members of Congress
was conceded and held to be subject to a point of order.
On Apr. 22, 1953,(18) during consideration in the
Committee of the Whole of the independent offices appropriation bill
(H.R. 4663), a point of order was raised against a substitute for the
following amendment:
---------------------------------------------------------------------------
18. 99 Cong. Rec. 3608, 83d Cong. 1st Sess.
---------------------------------------------------------------------------
Amendment offered by Mr. [John Bell] Williams of Mississippi:
Page 49,
[[Page 5944]]
after section 303, add a new section as follows:
``Sec. 304. No part of the funds appropriated in this act shall
be used to pay the salary of any employee provided for in this
appropriation at a rate in excess of the salary now paid to Members
of the Senate and House of Representatives: Provided, however, That
such limitations shall not apply to the office of the President of
the United States.''. . .
Mr. [John W.] McCormack [of Massachusetts]: Mr. Chairman, I
offer a substitute amendment.
The Clerk read as follows:
Amendment offered by Mr. McCormack as a substitute for the
amendment offered by Mr. Williams of Mississippi:
``The salaries of Members of the Congress after the
enactment of this bill shall be $22,500 per year.''
Mr. Williams of Mississippi: Mr. Chairman, I make a point of
order against the amendment.
Mr. McCormack: I concede the point of order, Mr. Chairman.
The Chairman: (19) The Chair sustains the point of
order.
---------------------------------------------------------------------------
19. Jackson E. Betts (Ohio).
---------------------------------------------------------------------------
Sec. 44.2 An appropriation for ``additional salaries'' at a specified
annual rate of Senators, Representatives in Congress, Delegates,
and Commissioners was held to be legislation on an appropriation
bill and not in order.
On Dec. 6, 1944,(20) during consideration in the
Committee of the Whole of a supplemental appropriation bill (H.R.
5587), the following proceedings took place:
---------------------------------------------------------------------------
20. 90 Cong. Rec. 8936, 8937), 78th Cong. 2d Sess.
---------------------------------------------------------------------------
For payment to the widow of Hampton P. Fulmer, late a
Representative from the State of South Carolina, $10,000 to be
disbursed by the Sergeant at Arms of the House.
Mr. [Emanuel] Celler [of New York]: Mr. Chairman, I offer an
amendment which I send to the Clerk's desk.
The Clerk read as follows:
Amendment offered by Mr. Celler, of New York: On page 2,
after line 6, insert a new paragraph as follows:
``For additional salaries at the additional rate of $2,500
per annum, from January 1, 1945, to June 30, 1945, of Senators,
Representatives in Congress, Delegates from Territories, the
Resident Commissioner of Puerto Rico, and the Resident
Commissioner from the Philippine Islands, $668,750.''
Mr. [Clarence] Cannon of Missouri: Mr. Chairman, I regret to
have to make a point of order against the amendment, that there is
no legislation authorizing such an appropriation. . . .
The Chairman: (1) . . . The Chair sustains the point
of order made by the gentleman from Missouri [Mr. Cannon].
---------------------------------------------------------------------------
1. Herbert C. Bonner (N.C.).
---------------------------------------------------------------------------
Increase in Members' Clerk-hire
Sec. 44.3 To a legislative appropriation bill, an amendment
[[Page 5945]]
providing that the clerk-hire roll of each Member be increased by
one employee was ruled out as legislation.
On June 27, 1968,(2) During consideration in the
Committee of the Whole of the legislative appropriation bill (H.R.
18038), a point of order was raised against the following amendment:
---------------------------------------------------------------------------
2. 114 Cong. Rec. 19093, 90th Cong. 2d Sess. H. Res. 416, 89th
Congress, authorized Members to employ a student intern on a
temporary basis in the summer.
---------------------------------------------------------------------------
Mr. [William F.] Ryan [of New York]: Mr. Chairman, I offer an
amendment.
The Clerk read as follows:
Amendment offered by Mr. Ryan: On page 6, line 20, strike
out the period, insert a colon, and add the following:
``Provided, That each Member's clerk-hire roll may be increased
by one employee for the purposes and to the extent authorized
in House Resolution 416, 89th Congress.''
Mr. [George W.] Andrews of Alabama: Mr. Chairman, I make a
point of order against the amendment.
The Chairman: (3) The gentleman from Alabama will
state his point of order.
---------------------------------------------------------------------------
3. John M. Murphy (N.Y.).
---------------------------------------------------------------------------
Mr. Andrews of Alabama: Mr. Chairman, it is legislation on an
appropriation bill. . . .
The Chairman: Does the gentleman from New York desire to be
heard on the point of order?
Mr. Ryan: Yes, Mr. Chairman.
I would argue that the amendment is in order because the
amendment relates to the purposes of House Resolution 416, which is
referred to in the bill, and clearly, if lines 17 to 20 were in
order and were included in the bill, then the proviso which my
amendment adds to those lines is equally in order.
The Chairman: The Chair is prepared to rule. The Chair has had
the opportunity to study the amendment of the gentleman from New
York and the Chair finds the question of one additional employee
is, under the subject of clerk hire, within the jurisdiction of the
Committee on House Administration. The amendment of the gentleman
from New York would add legislation to an appropriation measure and
therefore (be) in violation of clause 2, rule XXI, of the House of
Representatives. The Chair therefore sustains the point of order.
Staff Salaries--Making House Resolutions Permanent Law
Sec. 44.4 A provision in a supplemental appropriation bill declaring
that certain House resolutions such as those relating to Members'
clerk-hire, should be the permanent law with respect to their
subject matter, was ruled out as legislation.
On Sept. 22, 1964,(4) during consideration in the
Committee of the Whole of a supplemental appro
[[Page 5946]]
priation bill (H.R. 12633), a point of order was raised against the
following provision:
---------------------------------------------------------------------------
4. 110 Cong. Rec. 22431, 88th Cong. 2d Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
Contingent Expenses
For an additional amount for ``Miscellaneous items'',
$92,000, for payment to the Architect of the Capitol in
accordance with section 208 of the Act approved October 9, 1940
(Public Law 812).
The provisions relating to allowances, positions, and
salaries carried in House Resolutions 294, 831, and 832,
Eighty-eighth Congress, shall be the permanent law with respect
thereto.
Mr. [John M.] Ashbrook [of Ohio]: Mr. Chairman, I make a point
of order against the language appearing on page 12, lines 3 to 6,
reading as follows:
The provisions relating to allowances, positions, and
salaries carried in House Resolutions 294, 831, and 832,
Eighty-eighth Congress, shall be the permanent law with respect
thereto.
I make the point of order particularly with respect to lines 5
and 6, on the ground that this is legislation on an appropriation
bill.
Mr. [Thomas J.] Steed [of Oklahoma]: Mr. Chairman, if I may be
heard on the point of order, this is what has been in every
legislative bill that has come before the House for a great many
years. It is an established rule that the House has always
followed. It seems to me that the committee is only following here
what the House has always had as the procedure it has followed in
this connection.
The Chairman: (5) The Chair is prepared to rule.
---------------------------------------------------------------------------
5. Richard Bolling (Mo.).
---------------------------------------------------------------------------
What the gentleman from Oklahoma says is true, that this has
been the practice of the House for a number of years, but on its
face this is legislation on an appropriation bill. The Chair
sustains the point of order.
-- Increasing Salaries
Sec. 44.5 To the legislative appropriation bill an amendment proposing
that each Member may pay to one employee $8,000 basic compensation
in lieu of $6,000 basic, as provided by law, was held to be
legislation and not in order.
On July 1, 1955,(6) during consideration in the
Committee of the Whole of the legislative appropriation bill (H.R.
7117), the following occurred:
---------------------------------------------------------------------------
6. 101 Cong. Rec. 9815, 9816, 84th Cong. 1st Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
members' clerk hire
For clerk hire, necessarily employed by each Member in the
discharge of his official and representative duties, which
shall be at the basic rate of $15,000 per annum: Provided, That
no salary shall be fixed hereunder at a basic rate in excess of
$6,000 per annum; $11,500,000.
Mr. [Earl] Wilson of Indiana: Mr. Chairman, I offer an
amendment.
The Clerk read as follows:
Amendment offered by Mr. Wilson of Indiana: Page 4, line
15, after ``of'' strike out ``$6,000'' and insert ``$8,000.''
[[Page 5947]]
Mr. [William F.] Norrell (of Arkansas): Mr. Chairman, I make
the point of order against the amendment that it is legislation on
an appropriation bill. There is no authorization for this proposal.
. . .
The Chairman: (7) The Chair is ready to rule. The
amendment of the gentleman from Indiana [Mr. Wilson] would change
existing law by increasing the amount provided in the paragraph.
---------------------------------------------------------------------------
7. William M. Colmer (Miss.).
---------------------------------------------------------------------------
The Chair thinks the point of order is well taken and sustains
the point of order.
Position Titles Changed
Sec. 44.6 To a provision in an appropriation bill for clerk-hire for
Members and Delegates, an amendment proposing to designate such
clerks as ``secretaries'' was held to constitute a change in
existing law.
On May 15, 1941,(8) during consideration in the
Committee of the Whole of the legislative appropriation bill (H.R.
4576), a point of order was raised against the following provision:
---------------------------------------------------------------------------
8. 87 Cong. Rec. 4137, 77th Cong. 1st Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
clerk hire, members and delegates
For clerk hire necessarily employed by each Member and
Delegate, and the Resident Commissioner from Puerto Rico, in
the discharge of his official and representative duties, in
accordance with the act entitled ``An act to fix the
compensation of officers and employees of the legislative
branch of the Government,'' approved June 20, 1929, as amended
by the act of July 25, 1939, $2,847,000.
Mr. [George A.] Dondero [of Michigan]: Mr. Chairman, I offer an
amendment.
The Clerk read as follows:
Amendment offered by Mr. Dondero: On page 21, line 12,
strike out ``clerk hire'' and insert ``secretaries to,'' and on
page 21 in line 13, strike out ``clerk hire'' and insert
``allowance for secretaries.''. . .
Mr. [Emmet] O'Neal [of Kentucky]: Mr. Chairman, I insist on the
point of order, and I may state that the ground of the point of
order is that this is legislation on an appropriation bill.
The Chairman: (9) The Chair is ready to rule.
---------------------------------------------------------------------------
9. John J. Sparkman (Ala.).
---------------------------------------------------------------------------
In view of the fact that in the basic law the employees in the
offices mentioned are referred to as clerks and in view of the fact
that the amendment offered by the gentleman from Michigan [Mr.
Dondero] would change existing law and would therefore be
legislation on an appropriation bill, it is the opinion of the
Chair that the amendment is clearly out of order, and the Chair
therefore sustains the point of order.
Office Allowances
Sec. 44.7 Language in an appropriation bill increasing Mem
[[Page 5948]]
bers' telegraph, stationery, and telephone allowances an additional
$300 was conceded to be legislation on an appropriation bill and
held not in order.
On May 22, 1950,(10) during consideration in the
Committee of the Whole of a deficiency appropriation bill (H.R. 8567),
the following points of order were raised:
---------------------------------------------------------------------------
10. 96 Cong. Rec. 7416, 81st Cong. 2d Sess.
---------------------------------------------------------------------------
Mr. [Errett P.] Scrivner (of Kansas): Mr. Chairman, against the
language on page 4, lines 23 to 36, inclusive, reading:
For an additional amount for telegraph and telephone
service, including an additional amount of $300 for each
Representative, Delegate, and the Resident Commissioner from
Puerto Rico, $131,400.
I make the point of order that there is no legislative
authority for it.
The Chairman: (11) Does the gentleman from North
Carolina desire to be heard on the point of order?
---------------------------------------------------------------------------
11. Charles M. Price (Ill.).
---------------------------------------------------------------------------
Mr. [John H.] Kerr [of North Carolina]: Mr. Chairman, we
concede the point of order.
The Chairman: The point of order is sustained.
The Clerk read as follows:
Stationery (revolving fund): For an additional amount for
stationery, second session, Eighty-first Congress, including an
additional stationery allowance of $300 for each
Representative, Delegate, and the Resident Commissioner from
Puerto Rico, $131,400, to remain available until expended.
Mr. Scrivner: Mr. Chairman, against the language on page 5,
lines 7 to 11, inclusive, reading:
Stationery (revolving fund): For an additional amount of
stationery . . . $131,400 . . . .
I make the point of order that there is no legislation
providing for the expenditure.
The Chairman: Does the gentleman from North Carolina desire to
be heard on the point of order?
Mr. Kerr: The point of order is conceded.
The Chairman: The point of order is sustained.
Tax Treatment of Travel Expenses
Sec. 44.8 To a provision in a general appropriation bill appropriating
funds for expenses of Members, an amendment seeking to amend
Internal Revenue Code provisions affecting Members was held to be
legislation on an appropriation bill and not germane thereto.
On May 10, 1945,(12) during consideration in the
Committee of the Whole of the legislative appropriation bill (H.R.
3109), a point of
[[Page 5949]]
order was raised against the following amendment:
---------------------------------------------------------------------------
12. 91 Cong. Rec. 4451-53, 79th Cong. 1st Sess.
---------------------------------------------------------------------------
Mr. [William M.] Whittington [of Mississippi]: Mr. Chairman, I
offer a preferential amendment.
The Clerk read as follows:
Amendment offered by Mr. Whittington: Page 15, strike out
all of line 25, and on page 16 all of lines 1, 2, 3, 4, and
down to and including the word ``installments'' in line 5, and
insert in lieu thereof the following:
``Section 23 (a) (1) (A) of the Internal Revenue Code
(relating to deductibility of trade and business expenses) is
amended by inserting at the end thereof a new sentence as
follows: `For the purposes of this chapter, in the case of an
individual holding an office as a Member of the Congress of the
United States of any State or Territory, his home shall be
considered to be his place of residence within the State or
Territory from which he is such a member, but the deduction
allowable for this taxable year by reason of this sentence
shall in no event exceed $2,500, and shall be applicable only
with respect to the taxable years after December 31, 1944.' ''
Mr. [Emmet] O'Neal [of Kentucky]: Mr. Chairman, I make a point
of order against the amendment. I make the same argument on the
point of order that I made on the last amendment offered by the
gentleman, namely, that that part of his amendment which says his
home shall be his place of residence within the State or Territory,
might affect provisions of law far beyond anything contemplated in
this bill and is plainly legislation on an appropriation bill, and
not germane. . . .
The Chairman: (13) The Chair is ready to rule.
---------------------------------------------------------------------------
13. John J. Delaney (N.Y.).
---------------------------------------------------------------------------
The pending appropriation bill contains a provision that would
allow Members of Congress a sum not exceeding $2,500 to pay
expenses. The amendment offered by the gentleman from Mississippi
would constitute legislation on an appropriation bill, legislation
which comes within the province of the Committee on Ways and Means.
The Chair is of the opinion that the amendment is not germane to
the pending paragraph and, therefore, sustains the point of order.
Procedure for Employment of Committee Staff
Sec. 44.9 An amendment to a general appropriation bill, changing the
procedure for the employment of committee staff personnel and in
effect altering the method of staff selection specified in the
Legislative Reorganization Act of 1946, was conceded and held to be
legislation and was ruled out on a point of order.
On Apr. 11, 1962,(14) during consideration in the
Committee of the Whole of the legislative appropriation bill (H.R.
11151), a point of order was raised against the following amendment:
---------------------------------------------------------------------------
14. 108 Cong. Rec. 6353, 6354, 87th Cong. 2d Sess.
---------------------------------------------------------------------------
Mr. [Frederick D.] Schwengel [of Iowa]: Mr. Chairman, I offer
an amendment.
[[Page 5950]]
The Clerk read as follows:
Amendments offered by Mr. Schwengel: On page 3, strike
lines 2 and 3 and insert ``For committee employees, $2,450,000:
Provided, That at least $747,000 or so much thereof as may be
necessary to carry out the provisions of the House rules shall
be available only for the payment of salaries of employees
appointed at the request of a majority of the minority members
of the committee.''; and on page 4, line 16, delete
``$600,000'' and insert ``and for committee employees'
salaries, $1,050,000.''; and on page 6, line 8, change the
period to a colon and add: ``Provided, That $880,500 thereof
shall be available only for payment of salaries of employees
appointed at the request of a majority of the minority members
of the committees.'' . . .
Mr. [Thomas J.] Steed [of Oklahoma]: Mr. Chairman, I make the
point of order against the amendment on the grounds that it is
legislation on an appropriation bill. While it appears to be a
limitation it actually, in effect, is legislation. The Legislative
Reorganization Act of 1946 and the rules of the House set out how
the committees and their staffs are to be organized and appointed.
The effect of this amendment, it seems to me, would be to change
that. It would have the effect of making a legislative change. I
think it is obviously legislation on an appropriation bill and that
the point of order should be sustained. . . .
Mr. Schwengel: With the assurance of a distinguished Member on
the other side, I concede the point of order.
The Chairman: (15) The Chair has studied the
amendment and believes it would provide a new method of hiring
personnel, and therefore would affect the Reorganization Act and
the rules thereunder. It is legislation on an appropriation bill,
and the Chair sustains the point of order.
---------------------------------------------------------------------------
15. Clark W. Thompson (Tex.).
---------------------------------------------------------------------------
Requiring New Committee Regulations Concerning Allowance
Sec. 44.10 It is not in order on a general appropriation bill to
require a congressional committee to promulgate regulations to
limit the use of an appropriation; an amendment to the legislative
branch general appropriation bill requiring the Committee on House
Administration to promulgate rules to limit the amount of official
mail sent by Members with the funds appropriated in the bill was
ruled out as legislation.
On June 13, 1979,(16) during consideration in the
Committee of the Whole of the legislative branch appropriation bill
(H.R. 4390), a point of order was sustained against the following
amendment:
---------------------------------------------------------------------------
16. 125 Cong. Rec. 14670, 14671, 96th Cong. 1st Sess.
---------------------------------------------------------------------------
Mr. [Thomas J.] Tauke [of Iowa]: Mr. Chairman, I offer an
amendment.
The portion of the bill to which the amendment relates reads as
follows:
[[Page 5951]]
Official Mail Costs
For expenses necessary for official mail costs,
$70,707,000, to be disbursed by the Clerk of the House, to be
available immediately on enactment of this Act.
The Clerk read as follows:
Amendment offered by Mr. Tauke: Page 12, line 3, strike out
``$70,707,000'' and insert in lieu thereof ``$64,994,000''.
Page 12, line 4, after the period, insert the following:
``The Committee on House Administration shall set forth rules
to uniformly limit the amount of official mail which may be
sent by Members of the House with the use of funds appropriated
under this paragraph.''. . .
Mr. [Adam] Benjamin [Jr., of Indiana]: Mr. Chairman, I insist
on my point of order.
Mr. Chairman, I would maintain that the gentleman's amendment
is in violation of rule XXI, clause 2, since it is legislation on
an appropriation bill. It establishes law where none exists. . .
Mr. Tauke: Mr. Chairman, the amendment speaks to the amount of
dollars that would be appropriated for this particular item, and
then it places restrictions on the use of those dollars. Under
those circumstances, I believe the amendment is germane.
The Chairman: (17) The amendment clearly requires
action by the Committee on House Administration and, therefore, is
legislating in an appropriation bill.
---------------------------------------------------------------------------
17. John M. Murphy (N.Y.).
---------------------------------------------------------------------------
The Chair sustains the point of order.
CHAPTER 26
Unauthorized Appropriations; Legislation on Appropriation Bills
C. PROVISIONS AS ``CHANGING EXISTING LAW,'' GENERALLY
Sec. 45. Housing and Public Works
Restrictions on Use of Appropriation and Contract Authority
Sec. 45.1 In an appropriation bill a provision that the Public Housing
Administration shall not authorize the commencement of construction
during a certain year of more than 20,000 dwelling units was held
to be legislation, and in the same appropriation bill a series of
provisions (relating to the program of the Public Housing
Administration) (1) prohibiting the use of an appropriation in the
bill unless regulations are adopted restricting eligibility of
certain persons to be tenants of low-rent housing units, (2)
requiring that expenditures of such appropriation be subject to
audit by the Comptroller General, (3) prohibiting the authorization
of public housing unless the governing body of the locality agrees
to the completion thereof and prohibiting the continuation of
construction of public housing where a community by their
representatives or by ref
[[Page 5952]]
erendum have indicated they do not want it, (4) requiring that the
records of expenditure on any public housing project shall be open
to examination by responsible community authorities, and (5)
prohibiting occupancy of certain housing by persons belonging to
organizations designated as subversive and requiring such
prohibition to be enforced by local housing authorities were also
held to be legislation.
On Mar. 30, 1954,(18) during consideration in the
Committee of the Whole of the independent offices appropriation bill
(H.R. 8583), a point of order was raised against the following
provision:
---------------------------------------------------------------------------
18. 100 Cong. Rec. 4123, 4124, 83d Cong. 2d Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
Annual contributions: For the payment of annual
contributions to public housing agencies . . . $63,950,000:
Provided, That except for payments required on contracts
entered into prior to April 18, 1940, no part of this
appropriation shall be available for payment to any public
housing agency for expenditure in connection with any low-rent
housing project, unless the public housing agency shall have
adopted regulations prohibiting [occupancy by] any person other
than a citizen of the United States. . . . Provided further,
That all expenditures of this appropriation shall be subject to
audit and final settlement by the Comptroller General of the
United States under the provisions of the Budget and Accounting
Act of 1921, as amended: Provided further, That unless the
governing body of the locality agrees to its completion, no
housing shall be authorized by the Public Housing
Administration, or, if under construction continue to be
constructed, in any community where the people of that
community, by their duly elected representatives, or by
referendum, have indicated they do not want it, and such
community shall negotiate with the Federal Government for the
completion of such housing, or its abandonment . . . and shall
agree to repay to the Government the moneys expended prior to
the vote or other formal action whereby the community rejected
such housing project for any such projects not to be completed
. . . Provided further, That the record of expenditure of the
Public Housing Administration and of the local housing
authority on any public housing project shall be open to
examination by the responsible authorities of any community in
which such project is located, or by the local public housing
authority, or by any firm of public accountants retained by
either of the foregoing . . . Provided further, That
notwithstanding the provisions of the United States Housing Act
of 1937, as amended, the Public Housing Administration shall
not, with respect to projects initiated after March 1, 1949,
authorize during the fiscal year 1955 the commencement of
construction of in excess of 20,000 dwelling units.
Mr. [Abraham J.] Multer [of New York]: I tried to make a point
of order before, and I do want to make a point of order now, but my
inquiry is whether or not I should make my point of order against
each of the provisos in this section at this time or whether I
shall make the point of order against the paragraph as a whole?
[[Page 5953]]
The Chairman: (19) the gentleman may make his point
of order after the paragraph has been read. . . .
---------------------------------------------------------------------------
19. Louis E. Graham (Pa.).
---------------------------------------------------------------------------
Mr. [Howard W.] Smith of Virginia: Mr. Chairman, I make the
point of order against the language on page 31, beginning at line
12 and running through line 17. That is the provision with respect
to 20,000 housing units.
Mr. Chairman, I am prepared to discuss the point of order if it
is going to be contested.
Mr. Multer: Mr. Chairman, I have a point of order to a
paragraph prior to that one.
The Chairman: The gentleman will state it. . . .
Mr. [Charles A.] Halleck [of Indiana]: Should not the point of
order that has been made be ruled upon before we take up any other
points of order?
The Chairman: The Chair will consider all points of order
against the paragraph now. They may be stated and we may consider
them at this time.
Mr. Multer: I make the point of order against the provisos
beginning on page 29, lines 12, and running to page 31, line 11 on
the ground that each of those provisos is legislation on an
appropriation bill.
The Chairman: Does the gentleman from California desire to be
heard on these points of order?
Mr. [John] Phillips [of California]: Mr. Chairman, may I take
them up in the order in which they were made.
The effect of the point of order made against the proviso on
page 31, line 12 is this, as the committee understands it. It is to
remove the limitation and leave the opinion of the Comptroller
General to stand that there could then be built no more than 33,000
or 34,000 houses--whatever the exact number is--that were
contracted for prior to the adoption of the appropriation bill of 2
years ago for the fiscal year 1953. We concede the point of order.
. . .
Mr. [Sidney R.] Yates [of Illinois]: I understand that the
chairman of our subcommittee was addressing himself to the point of
order made by the gentleman from Virginia [Mr. Smith], to the
language appearing on page 31 between lines 12 and 17. As I
understand that language, it is a limitation upon the appropriation
that is contained in this bill as to the amount of money that may
be used for the purpose of constructing housing units, and to that
extent it is perfectly proper. . . .
Mr. Smith of Virginia: Mr. Chairman, I think it is necessary
under the circumstances to go back to the previous bill, of last
year, on this subject and the limitation contained therein. My
point of order goes to the question that the provision in this bill
is legislation more than it is a limitation. The point of order is
directed at the point that this is legislation on an appropriation
bill.
What happened about it is that the Housing Act was passed as an
amendment to the old Housing Act of 1949, which authorized the
construction of a certain number of units of public housing per
annum. That was a matter of great controversy through the years.
Ultimately the thing came to a head in the independent offices
appropriation bill for the fiscal year ending June 30, 1954. In
that independent offices appropriation bill was contained this pro
[[Page 5954]]
vision of law, which is the law upon the subject of public housing
today. That provision in last year's independent offices
appropriation bill I would like to read for the Record. It states:
The Public Housing Administration shall not, after the date
of approval of this act, enter into any new agreements,
contracts, or other arrangements, preliminary or otherwise,
which will ultimately bind the Public Housing Administration
during fiscal year 1954 or for any future years with respect to
loans or annual contributions for any additional dwelling units
or projects unless hereafter authorized by the Congress to do
so.
That is all of the quotation that is pertinent to the question
which I raise.
In other words, the law is that not a single unit of public
housing can be contracted for until it is authorized by the
Congress. An authorization does not mean authorization in an
appropriation bill. So, this being an appropriation bill, and the
provision to which I have raised the point of order being
legislation which changes existing law under last year's act, it is
subject to the point of order.
Mr. Yates: Mr. Chairman, if I may be heard in reply to the
gentleman in opposition to the point of order, the gentleman from
Virginia is correct with respect to the provisions of the
appropriation bill last year. However, I respectfully direct the
attention of the Chair to that provision, and I reread it, which
states, ``after the date of approval of this act, enter into any
new agreements, contracts, or other arrangements, preliminary or
otherwise.''
Mr. Chairman, the units that are provided for in this act are
not the subject of any new agreements that were entered into
subsequent to this provision. They are units which were authorized
under previous provisions of the law and are, therefore, a proper
subject for this appropriation bill.
Mr. Smith of Virginia: You concede that this changes the law,
do you not?
Mr. Yates: I concede it changes the law from the date of
enactment of the independent offices appropriation bill of 1954.
Mr. Smith of Virginia: That is the law today so you are
changing the law without legislative authorization.
Mr. Yates: I conceded it was the law with respect to new
contracts. I did not concede it was the law with respect to other
contracts.
Mr. Smith of Virginia: But does it change the law?
Mr. Yates: Not with respect to units not the subject of the
appropriations bill. . . .
The Chairman: The Chair is ready to rule.
The Chair has in mind Public Law 176 of the 83d Congress which
has been referred to, and the sections which have been quoted here.
The Chair also has in mind the provisos and will pass upon the
point of order raised by the gentleman from Virginia [Mr. Smith]
and the points of order raised by the gentleman from New York [Mr.
Multer] beginning on page 29, line 12 and extending to the end of
the paragraph. In the opinion of the Chair, the language is purely
legislation on an appropriation bill and the Chair sustains the
points of order. . . .
[Parliamentary inquiries were then made:]
[[Page 5955]]
Mr. [Jere] Cooper [of Tennessee]: Mr. Chairman, a parliamentary
inquiry.
The Chairman: The gentleman will state his parliamentary
inquiry.
Mr. Cooper: Did the Chair sustain all points of order that had
been made or just the point of order made by the gentleman from
Virginia?
The Chairman: The Chair sustained the point of order made by
the gentleman from Virginia and those made by the gentleman from
New York [Mr. Multer]. . . .
Mr. [John W.] McCormack [of Massachusetts]: Mr. Chairman, in
reference to the point of order raised by the gentleman from
Virginia, is the ruling of the Chair predicated upon the fact that
the Chair is of the opinion that there is no authorization in the
law at the present time for the appropriation or for money for the
construction of housing units?
The Chairman: No; the Chair did not so rule. The Chair held
that the language of the bill itself is legislation.
Mr. McCormack: In other words, Mr. Chairman, the gentleman from
Massachusetts is seeking for the purposes of the record and also in
view of other considerations, for example, the bill which is coming
up tomorrow, to try to ascertain the basic thought in the mind of
the Chairman. The gentleman from Virginia made a point of order
based upon certain provisions in the appropriation bill of last
year, a rider so-called. The gentleman from Massachusetts in his
parliamentary inquiry is seeking to find out from the Chairman if
the reason for sustaining the point of order made by the gentleman
from Virginia [Mr. Smith] is that the rider of last year repealed
any authorization for appropriations for the construction of
housing projects.
The Chairman: The Chair has held that the proviso, the very
language itself, which is as follows:
That notwithstanding the provisions of the United States
Housing Act of 1937, as amended, the Public Housing
Administration shall not, with respect to projects initiated
after March 1, 1949, (1) authorize during the fiscal year 1954
the commencement of construction of in excess of 20,000
dwelling units--
is on its face legislation.
Mr. McCormack: Does the Chairman hold that that is a repeal of
any previous authorization of law?
The Chairman: No; the Chair is not ruling on that. The Chair is
ruling that this language on its face is legislation on an
appropriation bill.
Total Number of Housing Units in Current and Future Fiscal Years
Sec. 45.2 To an appropriation bill an amendment providing that
notwithstanding certain provisions of law the Public Housing
Administration shall not authorize the commencement of construction
of more than 35,000 dwelling units in a certain year, nor more than
35,000 units for each of the three succeeding years unless a
greater number is hereafter authorized by Congress was held to be
legislation.
[[Page 5956]]
On Mar. 30, 1954,(20) during consideration in the
Committee of the Whole of the independent offices appropriation bill
(H.R. 8583), a point of order was raised against the following
amendment:
---------------------------------------------------------------------------
20. 100 Cong. Rec. 4124, 4125, 83d Cong. 2d Sess.
---------------------------------------------------------------------------
Amendment offered by Mr. [Sidney R.] Yates (of Illinois): Page
29, after line 12, insert ``Provided further, That notwithstanding
the provisions of the United States Housing Act of 1937, as
amended, the Public Housing Administration shall not, with respect
to projects initiated after March 1, 1949, authorize during fiscal
year 1955 the commencement of construction of in excess of 35,000
dwelling units and (2) after the date of approval of this act,
enter into any agreement, contract, or other arrangement which will
bind the Public Housing Administration with respect to loans,
annual contributions, or authorizations for commencement of
construction for dwelling units aggregating in excess of 35,000
units each year during fiscal years 1956, 1957, and 1958, unless a
greater number of units is hereafter authorized by the Congress.''
Mr. [John] Phillips [of California]: Mr. Chairman, I make the
point of order that the amendment offered by the gentleman from
Illinois (Mr. Yates) is out of order. The Chair has already ruled
that the first part of the amendment just read is legislation, and
the balance of the amendment is obviously legislation, going beyond
the limits of the provision upon which the Chair has already ruled.
It changes existing law. . . .
The Chairman: (1) The Chair is prepared to rule. The
Chair understands that part of the language is the same as that
upon which the Chair has already ruled and has been stricken out,
and the rest of the language on its face is legislation. The Chair
sustains the point of order.
---------------------------------------------------------------------------
1. Louis E. Graham (Pa.).
---------------------------------------------------------------------------
Restriction of Contract Authority
Sec. 45.3 A provision in a general appropriation bill changing existing
law by restricting the contract authority of the Housing and Home
Finance Administrator under the Housing Act of 1961, to an amount
``within the limits of appropriations made available therefor,''
was conceded to be legislation and was ruled out on a point of
order.
On Sept. 15, 1961,(2) during consideration in the
Committee of the Whole of a supplemental appropriation bill (H.R.
9169), a point of order was raised against the following provision:
---------------------------------------------------------------------------
2. 107 Cong. Rec. 19730, 87th Cong. 1st Sess.
---------------------------------------------------------------------------
Low-Rent Housing Demonstration Programs
For low-rent housing demonstration programs as authorized by
section 207 of the Housing Act of 1961 (75 Stat. 165), $2,000,000,
of which not to exceed $20,000 shall be available for
administrative expenses, and such sec
[[Page 5957]]
tion 207 is hereby amended by inserting after the word
``authorized'' the phrase ``within the limits of appropriations
made available therefor''.
Mr. [Albert] Rains [of Alabama]: Mr. Chairman, I rise to make a
point of order.
The Chairman: (3) the gentleman from Alabama will
state his point of order.
---------------------------------------------------------------------------
3. Oren Harris (Ark.).
---------------------------------------------------------------------------
Mr. Rains: Mr. Chairman, I make a point of order against the
language, the two words ``low-rent'' in line 20 on page 14, and on
line 22, ``$2,000,000, of which'', and line 1 on page 15, beginning
with the words ``and such section 207'' down to and including the
rest of the paragraph.
Mr. Chairman, I make only the remark that this constitutes
legislation on an appropriation bill. . . .
Mr. [Albert] Thomas [of Texas]: Mr. Chairman, the gentleman is
right. But the committee did not want to be accused of tearing up
the program as unnecessary; I will use that word. That is a polite
word. . . .
Mr. Chairman, I think the point of order is good, and I join my
friend, the gentleman from Alabama [Mr. Rains] and make a point of
order against the entire paragraph.
The Chairman: The point of order is sustained.
Authorizing and Directing Agency Action
Sec. 45.4 In a general appropriation bill a provision requiring a
government agency which is selling mortgages to afford the
mortgagor an opportunity to buy the mortgage at the same discount
offered to a financial institution was conceded and held to be
legislation.
On Mar. 31, 1954,(4) during consideration in the
Committee of the Whole of the independent offices appropriation bill
(H.R. 8583), the following point of order was raised:
---------------------------------------------------------------------------
4. 100 Cong. Rec. 4258, 83d Cong. 2d Sess.
---------------------------------------------------------------------------
Mr. [Jesse P.] Wolcott [of Michigan]: Mr. Chairman, I make the
point of order with respect to the language on page 59, from the
proviso in line 9 down to and including line 17, as being
legislation on an appropriation bill. . . .
The Chairman: (5) Without objection the Clerk will
read the language referred to.
---------------------------------------------------------------------------
5. Louis E. Graham (Pa.).
---------------------------------------------------------------------------
The Clerk read as follows:
Provided further, That the Federal National Mortgage
Association is authorized and directed prior to the conclusion
of any sale of a mortgage at a discount to a financial
institution to offer the mortgage to the mortgagor at the same
discount, and that an offer shall be considered properly made
when addressed by registered letter to the mortgagor, who may
tender the purchase price, less discount, to the Federal
National Mortgage Association within 2 weeks from date of
receipt of such offer.
The Chairman: Does the gentleman from California [Mr. Phillips]
desire to be heard on this point of order?
[[Page 5958]]
Mr. [John] Phillips: No, Mr. Chairman. We concede the point of
order.
The Chairman: In the opinion of the Chair, this is legislation
upon an appropriation bill, and the point of order is sustained.
Delegation of Authority of Federal Works Administrator
Sec. 45.5 A provision in a general appropriation bill permitting the
Federal Works Administrator to delegate to the principal
administrative officer of that activity the authority to make
appointments of certain personnel was conceded and held to be
legislation on an appropriation bill and not in order.
On Feb. 8, 1945,(6) during consideration in the
Committee of the Whole of the independent offices appropriation bill
(H.R. 1984), a point of order was raised against the following
provision:
---------------------------------------------------------------------------
6. 91 Cong. Rec. 941, 942, 79th Cong. 1st Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
Public works advance planning: Toward accomplishing the
provisions of title V of the War Mobilization and Reconversion
Act of 1944, $5,000,000, to be immediately available and to
remain available until expended, of which not to exceed 4
percent shall be available for administrative expenses
necessary therefor, to be immediately available and to remain
available until June 30, 1946 . . . Provided, That the Federal
Works Administrator may delegate to the principal
administrative officer of this activity the authority to make
appointments of personnel hereunder.
Mr. [Francis H.] Case of South Dakota: Mr. Chairman, a point of
order.
The Chairman: (7) The gentleman will state his point
of order.
---------------------------------------------------------------------------
7. William M. Whittington (Miss.).
---------------------------------------------------------------------------
Mr. Case of South Dakota: Mr. Chairman, I make a point of order
against the paragraph on the ground it contains legislation in an
appropriation bill. I invite the attention of the Chairman
particularly to the language in lines 14 and 15, page 18, which
says:
to be immediately available and to remain available until
expended.
And also to the language beginning in line 24 saying:
Provided, That the Federal Works Administrator may delegate
to the principal administrative officer of this activity the
authority to make appointments of personnel hereunder.
I direct the point of order to the entire paragraph.
The Chairman: Does the gentleman from Virginia desire to be
heard on the point of order?
Mr. [Clifton A.] Woodrum of Virginia: Mr. Chairman, I concede
the point of order.
The Chairman: The point of order is sustained.
Use of Water Conditioned Upon Compliance With State Compact
Sec. 45.6 Language in a general appropriation bill providing
[[Page 5959]]
that the use of water from a project for which an appropriation is
being made shall be contingent upon compliance with a certain state
compact was held to be legislation and not in order.
On May 14, 1937,(8) during consideration in the
Committee of the Whole of the Interior Department appropriation bill
(H.R. 6958), a point of order was raised against the following
provision:
---------------------------------------------------------------------------
8. 81 Cong. Rec. 4607, 4612, 75th Cong. 1st Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
Gila project, Arizona, $1,250,000: Provided, That any right
to the use of water from the Colorado River acquired for this
project and the use of the lands and structures for the
diversion and storage of the same shall be subject to and
controlled by the Colorado River Compact, as provided in
section 8 of the Boulder Canyon Project Act, approved December
21, 1928 (45 Stat. 1062), and section 2 of the Rivers and
Harbors Act of August 30, 1935 (49 Stat. 1040);
Mr. [Lawrence] Lewis of Colorado: Mr. Chairman, I make a point
of order against the paragraph beginning on page 76, line 20, down
to the bottom of the page and continuing on down through and
including line 3, on page 77, on the ground that this item of
appropriation has not been authorized by law, and, further, that it
is contrary to law. No authorization has been enacted for this
item. . . .
The Chairman: (9) he Chair is prepared to rule. . .
.
---------------------------------------------------------------------------
9. Jere Cooper (Tenn.).
---------------------------------------------------------------------------
The Chair also invites attention to the fact that the language
that was called to the attention of the gentleman from Nevada [Mr.
Scrugham] undoubtedly has some bearing upon the question as to
whether or not this is legislation on an appropriation bill,
especially the language carried in the proviso, which was recently
discussed with the gentleman from Nevada. The gentleman from Nevada
quite frankly replied to the inquiry of the Chair, that the purpose
of including this language was to force compliance with a certain
State compact.
Therefore, the Chair feels there could be no doubt that the
effect of the inclusion of this language would be that of
legislation on an appropriation bill.
Storage Buildings as Adjunct to Forest Road Construction
Sec. 45.7 An appropriation for the construction of buildings for
storage of equipment used for forest roads and trail construction
and including a stated limit of cost for construction of any such
building was held unauthorized by law.
On Mar. 28, 1939,(10) the Committee of the Whole was
considering H.R. 5269, an Agriculture Department appropriation. At one
point the Clerk read as follows,
[[Page 5960]]
and proceedings ensued as indicated below:
---------------------------------------------------------------------------
10. 84 Cong. Rec. 3458, 76th Cong. 1st Sess.
---------------------------------------------------------------------------
Forest Roads and Trails
For carrying out the provisions of section 23 of the Federal
Highway Act approved November 9, 1921 (23 U.S.C. 23), including not
to exceed $59,500 for departmental personal services in the
District of Columbia, $10,000,000, which sum consists of the
balance of the amount authorized to be appropriated for the fiscal
year 1939 by the act approved June 16, 1936 (Stat. 1520), and
$3,000,000 of the amount authorized to be appropriated for the
fiscal year 1940 by the act approved June 8, 1938 (52 Stat. 635),
to be immediately available and to remain available until expended:
Provided, That this appropriation shall be available for the
rental, purchase, or construction of buildings necessary for the
storage of equipment and supplies used for road and trail
construction and maintenance, but the total cost of any such
building purchased or constructed under this authorization shall
not exceed $7,500.(11)
---------------------------------------------------------------------------
11. The latter provision could be considered an interference with
executive discretion, therefore legislation.
---------------------------------------------------------------------------
Mr. [John] Taber [of New York]: Mr. Chairman, I make the point
of order against the paragraph that this is legislation on an
appropriation bill providing for the construction of a building at
a limit beyond that authorized by law.
The Chairman: (12) Does the gentleman make the point
of order against the proviso or against the entire paragraph?
---------------------------------------------------------------------------
12. Wright Patman (Tex.).
---------------------------------------------------------------------------
Mr. Taber: Against the paragraph.
The Chairman: Does the gentleman from Missouri desire to be
heard on the point of order?
Mr. [Clarence] Cannon of Missouri: I may say, Mr. Chairman,
that this provision in the bill is the only limiting authority. If
the gentleman can cite us to some other authority establishing the
limitation, I should be pleased to have the citation. There is no
other limitation, Mr. Chairman, and the point of order is not well
taken.
Mr. Taber: There is no authorization for it at all.
The Chairman: The point of order is sustained.
CHAPTER 26
Unauthorized Appropriations; Legislation on Appropriation Bills
C. PROVISIONS AS ``CHANGING EXISTING LAW,'' GENERALLY
Sec. 46. Other Subjects
Budget Adjustments by Corporations and Agencies
Sec. 46.1 A section of the government corporations appropriation bill
providing a procedure by which agencies, in order to meet
emergencies arising after approval of the budget, could adjust
their budgets to provide for programs ``authorized by law and not
specifically set forth in the Budget,'' was held to be legislation
on an appropriation bill.
On June 13, 1946,(13) during consideration in the
Committee of
[[Page 5961]]
the Whole of the government corporations appropriation bill (H.R.
6777), the following point of order was raised:
---------------------------------------------------------------------------
13. 92 Cong. Rec. 6876, 6877, 79th Cong. 2d Sess.
---------------------------------------------------------------------------
Mr. [Francis H.] Case [of South Dakota]: Mr. Chairman, I desire
to make a point of order against section 302 of the bill on the
ground that it is legislation on an appropriation bill and violates
the Government Corporation Control Act.
The language clearly is legislation. It proposes to make it
possible for the corporation or agency to change its budget program
on getting Presidential approval and initiate programs, authorized
by law to be sure but not programmed or set forth in the budget
submitted to and approved by the Congress. If it were not for this
language it clearly would be a violation of the Government
Corporation Control Act for them to do so. The presence of the
language in this bill is evidence of the fact that it seeks to make
possible doing something which otherwise would not be possible to
do under existing law. Therefore, it constitutes legislation on an
appropriation bill.
The Chairman: (14) Does the gentleman from Tennessee
desire to be heard on the point of order?
---------------------------------------------------------------------------
14. William M. Whittington (Miss.).
---------------------------------------------------------------------------
Mr. [Albert A.] Gore [of Tennessee]: I do, Mr. Chairman.
Mr. Chairman, under the present law, without the passage of
this act, the various governmentally owned corporations included in
this bill have the authority, with or without approval of the
President, to expend funds available to them either through
appropriations or through their borrowing authority, for purposes
authorized to them by law.
This provision seeks to give the corporations an escape valve,
so to speak, to deal with new emergencies or situations not
anticipated in their budget, not from the law as it now is, but
from the previous sections of the pending bill. Therefore, Mr.
Chairman, section 302 gives to the corporations no authority which
they do not now have. It does give to the corporations, Mr.
Chairman, some limited authority which they are denied in previous
sections of the bill. . . .
The Chairman: The Chair is ready to rule.
The gentleman from South Dakota makes the point of order
against section 302 of the pending bill that it is legislation
without authority of law on an appropriation bill. That section is
as follows:
Sec. 302. In order to meet emergencies or contingencies
arising subsequent to approval of the Budget and not provided
for in the Budget program, a corporation or agency covered by
the provisions of this act may, with the approval of the
President, adjust its budget program to provide, within the
limits of available funds and borrowing authority, for the
immediate initiation of programs authorized by law and not
specifically set forth in the Budget: Provided, That the new
program shall be promptly transmitted to the Congress as an
amendment to the Budget: Provided further, That nothing in this
section shall be construed as authority for increasing the
amount available for administrative expenses under any
limitation on such expenses.
The appropriation under consideration is being made under
Public, 248,
[[Page 5962]]
Seventy-ninth Congress, the Government Corporation Control Act.
Section 2 of the act declares it to be the policy of the
Congress of the United States to scrutinize the operations of the
Government corporations and to provide current financial control
thereof.
Section 103 provides that the budget programs of the
corporations as authorized in section 102 shall be transmitted to
the Congress by the President as a part of the annual Budget for
the consideration of the Congress. Section 103 further provides
that amendments to the annual Budget programs may be submitted from
time to time.
Section 104 provides in part, and I quote:
The provisions of this section shall not be construed as
preventing wholly owned Government corporations from carrying
out and financing their activities as authorized by existing
law, nor shall any provisions of this section be construed as
affecting in any way the provisions of section 26 of the
Tennessee Valley Authority Act, as amended.
The Chair is of the opinion that when the Budget of the
President has been transmitted to the Congress and when that Budget
has been considered and finally approved by Congress the only way a
change can be made in the Budget is by an amendment to be
subsequently passed by the Congress. That procedure certainly
embraces the matter of administrative expenses. . . .
Section 302 of the pending bill provides for adjustments or
approvals or amendments not by the Congress and, in fact, without
any action by Congress. The said section provides for a procedure
that is not contemplated under either the Budget and Accounting Act
of 1921 or the Government Corporation Control Act, and is,
therefore, legislation on an appropriation bill in violation of the
rules of the House. The Chair is therefore constrained to sustain
the point of order. The point of order is sustained.
Elaborating on Name of Dam; Descriptive Language
Sec. 46.2 An amendment proposing to insert the words ``known as `Rankin
Dam' '' following an appropriation for Pickwick Landing Dam was
held to be legislation and not in order on an appropriation bill.
On May 8, 1936,(15) during consideration in the
Committee of the Whole of a deficiency appropriation bill (H.R. 12624),
a point of order was raised against the following amendment:
---------------------------------------------------------------------------
15. 80 Cong. Rec. 6965-67, 74th Cong. 2d Sess.
---------------------------------------------------------------------------
Mr. [Aaron L.] Ford of Mississippi: Mr. Chairman, I offer
another amendment.
The Clerk read as follows:
Page 19, line 2, after the words ``Pickwick Landing Dam'',
insert the following: ``(known as `Rankin Dam').''
Mr. [John J.] McSwain [of South Carolina]: Mr. Chairman, I make
a point of order on the amendment that
[[Page 5963]]
it is legislation on an appropriation bill. It is evidently an
attempt to change the name and call it ``Rankin Dam.'' It is in the
teeth of legislation that has been attempted time and time again.
There are bills before the Committee on Military Affairs to change
the name of this dam to ``Rankin Dam.''
Mr. [Harold] Knutson [of Minnesota]: I should like to ask the
gentleman if it is not customary to wait until the man is dead
before they name a dam for him?
Mr. McSwain: Yes; it is.
The Chairman: (16) Does the gentleman from
Mississippi wish to be heard on the point of order?
---------------------------------------------------------------------------
16. John W. McCormack (Mass.).
---------------------------------------------------------------------------
Mr. [Clarence] Cannon of Missouri: Mr. Chairman, if the Chair
will permit.
The Chairman: The Chair recognizes the gentleman from Missouri.
Mr. Cannon of Missouri: Mr. Chairman, this amendment is not
legislation. It is language merely descriptive, and such amendments
have been repeatedly held not to be legislation.
I recall two decisions on this point. They were made by one of
the greatest parliamentarians who has served in the House, James R.
Mann, of Illinois.
The first was made in 1905 when an amendment was offered, I
think, to the Naval bill.
The language provided that ships or armament should be of
``native manufacture.'' . . . Mr. James R. Mann, of Illinois, held
that those words were merely descriptive and that it was not
legislation.
Mr. [Bertrand H.] Snell [of New York]: Mr. Chairman, will the
gentleman yield:
Mr. Cannon of Missouri: I yield with pleasure to the
distinguished leader on the other side of the House.
Mr. Snell: If the words are merely descriptive, why will they
have the effect of changing the name of the dam?
Mr. Cannon of Missouri: They do not change the name of the dam.
It is not proposed to change the name of the dam.
Mr. Snell: But is not that the intention? I call it
legislation. Is not that the intention of the amendment?
Mr. Cannon of Missouri: The gentleman from New York, being one
of the ablest parliamentarians in the House, knows that the
Chairman of the Committee of the Whole may not speculate as to the
intention of an amendment. He must predicate his decision on the
amendment before him in the language in which it is written. He
cannot go back of what is on the face of it to surmise what is the
purpose of a Member in offering an amendment. This amendment merely
further describes the Pickwick Landing Dam; it does not propose a
change in the name; it merely adds the descriptive language ``known
as the Rankin Dam.''. . .
The Chairman: The Chair is prepared to rule. The Chair entirely
agrees with the gentleman from Missouri [Mr. Cannon], with
reference to the use of descriptive words. Therefore, the question
in the mind of the present occupant of the chair is whether the
amendment is descriptive or whether it constitutes legislation.
Without regard to whether or not it brings about a change in the
name of the dam from ``Pickwick Landing Dam'' to ``Rankin Dam'', it
is the opinion of the Chair, with profound respect for the opinion
[[Page 5964]]
of the gentleman from Missouri, one of the outstanding
parliamentarians of all time, that the amendment does not
constitute descriptive language; that it constitutes legislation.
It is an addition to the language used in this bill. The Chair
would rule the same whether or not the legislation referred to by
the gentleman from South Carolina (Mr. McSwain) contained the words
``Pickwick Landing Dam'' or not, because that name is included in
the bill now before the House.
Profoundly respecting the views of the gentleman from Missouri,
and with considerable hesitation in disagreeing with him, it is the
opinion of the Chair that the point of order is well taken, and the
Chair therefore sustains the point of order.
Contract Policy; ``Hereafter''
Sec. 46.3 To an appropriation bill, an amendment requiring the Civil
Aeronautics Authority to award contracts to the highest bidder
after previously advertising for sealed bids, was held to be
legislation and therefore not in order.
On July 12, 1956,(17) during consideration in the
Committee of the Whole of a supplemental appropriation bill (H.R.
12138), a point of order was raised against the following amendment:
---------------------------------------------------------------------------
17. 102 Cong. Rec. 12538, 84th Cong. 2d Sess.
---------------------------------------------------------------------------
Amendment offered by Mr. [George W.] Andrews [of Alabama]: Page
2, after line 24 insert the following center head and new
paragraph:
``Contracts for services
``Hereafter no contract for services at any airport under
the direct jurisdiction of the Civil Aeronautics Administration
shall be entered into without previously advertising
invitations for sealed bids based on specifications sufficient
to permit full and free competition in the letting of such
contracts.''
Mr. [Frank T.] Bow [of Ohio]: Mr. Chairman, I make the point of
order against the amendment that it is legislation on an
appropriation bill.
Mr. Andrews: Will the gentleman reserve his point of order?
Mr. Bow: I will reserve the point of order, Mr. Chairman.
Mr. Andrews: Mr. Chairman, the purpose of this amendment is
simply to require the Civil Aeronautics Authority officials to
award contracts to the high bidders. I have in mind a recent
contract that was let for a concession at the National Airport. The
contract was let by sealed bids. The company that bid the highest
rate to the Government was not awarded the contract. The purpose of
this amendment is to require the Civil Aeronautics Authority in the
future to award contracts to the bidders who will return the
highest rate to the Government. . . .
Mr. Bow: Mr. Chairman, I insist on my point of order that the
amendment is legislation on an appropriation bill.
The Chairman: (18) The Chair is prepared to rule.
---------------------------------------------------------------------------
18. Paul J. Kilday (Tex.).
---------------------------------------------------------------------------
The gentleman from Alabama offers an amendment which in
substance
[[Page 5965]]
would require that in connection with contracts under the
jurisdiction of the Civil Aeronautics Administration sealed bids be
required.
The amendment provides for new law; it is not a limitation on
the purpose for which funds may be used, and consequently it is
legislation on an appropriation bill. The point of order is
sustained.
New Authority for Use of FBI Files and Information
Sec. 46.4 A paragraph in a general appropriation bill providing that
certain FBI funds may be used to facilitate the exchange of
identification records with bank officials and with state and local
governments for employment and licensing purposes if approved by
the Attorney General was conceded and held to be legislation in
violation of Rule XXI clause 2.
On May 18, 1972,(19) during consideration in the
Committee of the Whole of a general appropriation bill (H.R.
14989), a point of order was raised against the following
provision:
---------------------------------------------------------------------------
19. 118 Cong. Rec. 18030, 18031, 92d Cong. 2d Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
The funds provided for Salaries and expenses, Federal
Bureau of Investigation, may be used, in addition to those uses
authorized thereunder, for the exchange of identification
records with officials of federally chartered or insured
banking institutions to promote or maintain the security of
those institutions, and, if authorized by State Statute and
approved by the Attorney General, to officials of State and
local governments for purposes of employment and licensing, any
such exchange to be made only for the official use of any such
official and subject to the same restriction with respect to
dissemination as that provided for under the aforementioned
appropriation.
Mr. [Don] Edwards of California: Mr. Chairman, I make a point
of order against the paragraph on page 17, lines 1 through 12,
since it constitutes legislation on an appropriation bill in
violation of clause 2, of rule XXI.
The Chairman: (20) Does the gentleman from New York
desire to be heard.
---------------------------------------------------------------------------
20. Thomas G. Abernethy (Miss.).
---------------------------------------------------------------------------
Mr. [John J.] Rooney of New York: Mr. Chairman, the gentleman
from New York must state that this proviso allows the FBI to
furnish identification records to officials of federally chartered
or insured banking institutions to promote or maintain the security
of those institutions. And as it further states:
If authorized by State Statute and approved by the Attorney
General, to officials of State and local governments.
This has been done for years. Then one of the judges, and I use
the term in its broadest sense, ruled that the FBI could not
furnish this information. The other body inserted this proviso last
year. We brought the amendment back to the House for a separate
vote and it was approved.
[[Page 5966]]
If the gentleman from California (Mr. Edwards) desires to
superimpose his views over the majority of the House, and wants to
prevent the banks from finding out if they are hiring criminals, he
can press his point of order and we shall have to concede the point
of order.
The Chairman: The gentleman from New York concedes the point of
order.
Mr. Edwards of California: Mr. Chairman, I thank the gentleman
for the concession.
The Chairman: The point of order is conceded, and the Chair
sustains the point of order.
Language of Limitation as Constituting New Authority
Sec. 46.5 Language in an appropriation bill providing that ``not to
exceed $2,500 of the funds available . . . for salaries and
expenses . . . shall be available for . . . entertainment when
authorized by the Secretary,'' was held to be legislation and not
in order.
On Apr. 3, 1957,(1) during consideration in the
Committee of the Whole of the Departments of Labor and Health,
Education, and Welfare appropriation bill (H.R. 6287), a point of order
was raised against the following provision:
---------------------------------------------------------------------------
1. 103 Cong. Rec. 5040, 85th Cong. 1st Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
Sec. 208. Not to exceed $2,500 of the funds available to
the Department for salaries and expenses and not otherwise
available for entertainment of officials of other countries or
officials of international organizations shall be available for
such entertainment when authorized by the Secretary.
Mr. [Edgar W.] Hiestand [of California]: Mr. Chairman, I make a
point of order against this paragraph, that it is legislation on an
appropriation bill.
The Chairman: (2) The gentleman makes his point of
order against the entire section?
---------------------------------------------------------------------------
2. Aime J. Forand (R.I.).
---------------------------------------------------------------------------
Mr. Hiestand: Section 208, lines 5 to 9, inclusive.
The Chairman: Does the gentleman from Rhode Island care to
comment on this point of order?
Mr. [John E.] Fogarty [of Rhode Island]: Mr. Chairman, I must
concede the point of order. The purpose of this paragraph is to
entertain some of these foreign doctors and scientists who come
over here, to reciprocate the entertainment that our people receive
when they go over there. If the gentleman wants to strike it out,
that is his privilege.
The Chairman: Does the gentleman insist on the point of order?
Mr. Hiestand: Mr. Chairman, I do.
The Chairman: The Chair sustains the point of order.
Item Veto Authority to President
Sec. 46.6 To a general appropriation bill, an amendment allowing the
President to dis
[[Page 5967]]
approve separate and distinct items of appropriations, was held to
be legislation and not in order.
On Apr. 19, 1950,(3) during consideration in the
Committee of the Whole of the legislative appropriation bill (H.R.
7786), a point of order was raised against the following amendment:
---------------------------------------------------------------------------
3. 96 Cong. Rec. 5393, 5394, 81st Cong. 2d Sess.
See also 99 Cong. Rec. 4939, 4940, 83d Cong. 1st Sess., May
14, 1953.
---------------------------------------------------------------------------
Mr. [Kenneth B.] Keating [of New York]: Mr. Chairman, I offer
an amendment.
The Clerk read as follows:
Amendment offered by Mr. Keating: On page 29, after line
13, insert a new section reading as follows:
``The total sums appropriated under this chapter shall be
reduced to the extent of any separate and distinct item
appropriating money which is disapproved by the President.''
Mr. [Christopher C.] McGrath [of New York]: Mr. Chairman, I
make the point of order that this is legislation on an
appropriation bill.
The Chairman: (4) Does the gentleman from New York
(Mr. Keating) desire to be heard on the point of order?
---------------------------------------------------------------------------
4. Jere Cooper (Tenn.).
---------------------------------------------------------------------------
Mr. Keating: I do, Mr. Chairman.
The Chairman: The Chair will hear the gentleman.
Mr. Keating: Mr. Chairman, the wording of this amendment is
designed to be, and I believe is, a limitation on the
appropriation. As I stated in general debate on the subject, I have
introduced a bill which would have the effect of giving the
President the power to veto any single item in an appropriation
bill which he does not now have. He is forced, therefore, to
approve or disapprove the whole bill.
I appreciate that to endeavor to provide for that in this
measure would be legislation on an appropriation bill. This,
however, is not worded in that way. It provides that the sums
appropriated here shall be reduced by the amount of any distinct
item which the President feels should be disapproved; in other
words, he will have the power under this amendment to join with us,
if he is so disposed, in the battle for economy. I believe the
amendment as worded, being a limitation, is in order.
Mr. McGrath: Mr. Chairman, may I call the Chair's attention to
the fact that this is a delegation of power from the legislative
branch to the executive branch of the Government and is clearly
legislative in character.
The Chairman: The Chair is prepared to rule.
The gentleman from New York (Mr. Keating) has offered an
amendment which has been reported by the Clerk. The gentleman from
New York (Mr. McGrath) has made a point of order against the
amendment on the ground it is legislation on an appropriation bill.
The Chair has analyzed the amendment and it appears clearly
that the purpose of it is to confer item veto power on the
President, which would be legislation on an appropriation bill in
that it confers authority and power
[[Page 5968]]
on the President which he does not have. Under the rules of the
House, being legislation on an appropriation bill, it is subject to
the point of order, and, therefore, the Chair sustains the point of
order.
Authority to Pay Mineral Royalties
Sec. 46.7 Language in an appropriation bill providing that ``the
Director of the Bureau of Mines is hereby authorized . . . to make
suitable arrangements with owners of private property . . . for
payment by such owners of a reasonable percentage . . . of the
total value of the minerals thereafter produced from such
property,'' was conceded and held to be legislation on an
appropriation bill.
On May 16, 1946,(5) during consideration in the
Committee of the Whole of the Interior Department appropriation bill
(H.R. 6335), a point of order was raised against the following
provision:
---------------------------------------------------------------------------
5. 92 Cong. Rec. 5120, 79th Cong. 2d Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
Investigation and development of domestic mineral deposits,
except fuels: For all expenses necessary to enable the Bureau
of Mines to investigate, develop, and experimentally mine, on
public lands and with the consent of the owner on private
lands, deposits of minerals in the United States . . .
$1,000,000: Provided, That the Director of the Bureau of Mines
is hereby authorized and directed to make suitable arrangements
with owners of private property upon which exploration or
development work is performed for payment by such owners of a
reasonable percentage, as determined by the Secretary of the
Interior, of the total value of the minerals thereafter
produced from such property. . . .
Mr. [Albert S. J.] Carnahan [of Missouri]: Mr. Chairman, I make
a point of order against certain language in the bill, namely, page
59, starting with line 18 through the word ``property'' in line 24,
on the ground this is legislation on an appropriation bill.
Mr. [Jed] Johnson of Oklahoma: Mr. Chairman, in order to save
time the committee concedes the point of order.
The Chairman: (6) The gentleman from Missouri makes
a point of order which is conceded by the gentleman from Oklahoma.
The point of order is sustained.
---------------------------------------------------------------------------
6. Jere Cooper (Tenn.).
---------------------------------------------------------------------------
Postal Rates Computation
Sec. 46.8 Language in an appropriation bill changing the formula for
computation of postal rates was held to be legislation and not in
order.
On Feb. 20, 1957,(7) during consideration in the
Committee of the Whole of a general appropriation
[[Page 5969]]
bill (H.R. 4897), a point of order was raised against the following
provision:
---------------------------------------------------------------------------
7. 103 Cong. Rec. 2334, 85th Cong. 1st Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
Sec. 204. Amounts contributed by the Post Office Department
to the civil service retirement and disability fund, in
compliance with section 4(a) of the Civil Service Retirement
Act (70 Stat. 747), from appropriations made by this title, or
from appropriations hereafter made to the Post Office
Department, shall be considered as costs of providing postal
service for the purpose of establishing postal rates.
Mr. [H. R.] Gross [of Iowa]: Mr. Chairman, I rise to a point of
order.
The Chairman: (8) The gentleman will state it.
---------------------------------------------------------------------------
8. W. Homer Thornberry (Tex.).
---------------------------------------------------------------------------
Mr. Gross: Mr. Chairman, I make the point of order that the
language contained in section 204, just read, is legislation upon
an appropriation bill, that it deals with appropriations not
contained in this bill, is not a limitation and therefore in
violation of the rules of the House. . . .
The Chairman: The Chair has examined the provision against
which the point of order is raised. It appears that it is
legislation on an appropriation bill. The point of order is
sustained.
Authority to Clear Title to Real Estate
Sec. 46.9 Language in an appropriation bill making appropriations for
roads and trails of the National Park Service, requiring ``title
and evidence of title to the lands . . . acquired to be
satisfactory to the Secretary of the Interior'' instead of the
Attorney General, was held to be legislation and not in order.
On Mar. 16, 1939,(9) during consideration in the
Committee of the Whole of the Interior Department appropriation bill
(H.R. 4852), a point of order was raised against the following
provision:
---------------------------------------------------------------------------
9. 84 Cong. Rec. 2893, 76th Cong. 1st Sess.
---------------------------------------------------------------------------
Roads and trails, National Park Service: For the construction,
reconstruction, and improvement of roads and trails, inclusive of
necessary bridges, in the national parks, monuments, and other
areas administered by the National Park Service . . . and pursuant
to the authorization of the act of March 3, 1931 (46 Stat. 1490),
the title and evidence of title to the lands or interests acquired
to be satisfactory to the Secretary of the Interior, $3,500,000, to
be immediately available and to remain available until expended. .
. .
Mr. [John] Taber [of New York]: Mr. Chairman, I make the point
of order against the language in lines 10, 11, and 12, page 118, as
follows:
The title and evidence of title to the lands or interests
acquired to be satisfactory to the Secretary of the Interior.
It is legislation on an appropriation bill and an attempt to
take the duty of passing on the title out of the hands of the
Attorney General. . . .
[[Page 5970]]
The Chairman: (10) Will the gentleman from New York
advise the Chair whether the point of order goes only to the
language he quoted?
---------------------------------------------------------------------------
10. Frank F. Buck (Calif.).
---------------------------------------------------------------------------
Mr. Taber: That is all.
The Chairman: The point of order is sustained.
Making Unpaid Fees a Lien Against Real Estate
Sec. 46.10 A provision in an Interior Department appropriation bill
directing that unpaid charges outstanding against certain lands
shall constitute a first lien thereon was held to be legislation
and not in order.
On May 14, 1937,(11) during consideration in the
Committee of the Whole of the Interior Department appropriation bill
(H.R. 6958), a point of order was raised against the following
provision:
---------------------------------------------------------------------------
11. 81 Cong. Rec. 4603, 4604, 75th Cong. 1st Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
In all, $2,088,000 to be immediately available, which
amount, together with the unexpended balances of funds made
available under this head in the Interior Department
Appropriation Act, fiscal year 1937, shall remain available
until June 30, 1938: Provided, That the foregoing amounts may
be used interchangeably in the discretion of the Secretary of
the Interior, but not more than 10 percent of any specific
amount shall be transferred to any other amount, and no
appropriation shall be increased by more than 15 percent:
Provided further, That the cost of the foregoing irrigation
projects and of operating and maintaining such projects where
reimbursement thereof is required by law, shall be apportioned
on a per-acre basis against the lands under the respective
projects and shall be collected by the Secretary of the
Interior as required by such law, and any unpaid charges
outstanding against such lands shall constitute a first lien
thereon which shall be recited in any patent or instrument
issued for such lands.
Mr. [John] Taber [of New York]: Mr. Chairman, I make a point of
order against the paragraph. . . .
The last part, beginning in line 20 and running through line
23, provides that unpaid charges shall be a first lien against all
of those lands.
I therefore make a point of order against the paragraph.
The Chairman: (12) Does the gentleman from Oklahoma
desire to be heard?
---------------------------------------------------------------------------
12. Jere Cooper (Tenn.).
---------------------------------------------------------------------------
Mr. [Jed] Johnson of Oklahoma: I do not desire to be heard.
The Chairman: The gentleman from New York [Mr. Taber] makes a
point of order against the paragraph appearing on page 40,
beginning in line 6 and extending down to and including line 23.
The Chair invites attention especially to the language
appearing in lines 20, 21, 22 and 23, which reads as follows:
Any unpaid charges outstanding against such land shall
constitute a first lien thereon which shall be recited in any
patent or instrument issued for such lands.
[[Page 5971]]
The Chair is of opinion this is legislation on an appropriation
bill not authorized under the rules of the House, and therefore
sustains the point of order as to the paragraph as a whole.
Renegotiation Act Incorporated by Reference
Sec. 46.11 To the appropriation for the Tennessee Valley Authority, an
amendment proposing to make contracts entered into by the Authority
and by the Atomic Energy Commission subject to the Renegotiation
Act was conceded to be legislation on an appropriation bill and
held not in order.
On Dec. 15, 1950,(13) during consideration in the
Committee of the Whole of a supplemental appropriation bill (H.R.
9920), a point of order was raised against the following amendment, and
proceedings ensued as indicated below:
---------------------------------------------------------------------------
13. 96 Cong. Rec. 16672-74, 81st Cong. 2d Sess.
---------------------------------------------------------------------------
Mr. [Francis H.] Case of South Dakota: Mr. Chairman, I offer an
amendment.
The Clerk read as follows:
Amendment offered by Mr. Case of South Dakota: Page 11
after line 12, insert a new section, as follows:
``Renegotiation of Contracts
``Sec. 602. (a) All negotiated contracts for procurement in
excess of $1,000 entered into during the current fiscal year by
or on behalf of the Atomic Energy Commission and the Tennessee
Valley Authority, and all subcontracts thereunder in excess of
$1,000, are hereby made subject to the Renegotiation Act of
1948 in the same manner and to the same extent as if such
contracts and subcontracts were required by such act to contain
the renegotiation article prescribed in subsection (a) of such
act. Each contract and subcontract made subject to the
Renegotiation Act of 1948 by this section shall contain an
article stating that it is subject to the Renegotiation Act of
1948. . . .''
Mr. [Albert A.] Gore [of Tennessee]: . . . Mr. Chairman, the
amendment offered by the distinguished and able gentleman from
South Dakota, is a lengthy, complicated, and far-reaching one . . .
It operates as an amendment of the renegotiation law. . . .
The Chairman: (14) The gentleman from South Dakota
[Mr. Case] has offered an amendment which has been reported. The
gentleman from Tennessee [Mr. Gore] has made a point of order
against the amendment, on the ground that it contains legislation
on an appropriation bill.
---------------------------------------------------------------------------
14. Jere Cooper (Tenn.).
---------------------------------------------------------------------------
Mr. Case of South Dakota: Mr. Chairman, I concede the point of
order.
The Chairman: The gentleman concedes the point of order, and
therefore the Chair sustains the point of order.
Tennessee Valley Authority Proceeds Applied to Appropriation
Sec. 46.12 Language in an appropriation bill providing funds
[[Page 5972]]
for resource development activities of the Tennessee Valley
Authority, stating that part of the funds therefor should be
derived from the appropriated funds and part from proceeds of
operation, was held to be legislation and not in order.
On May 28, 1956,(15) during consideration in the
Committee of the Whole of the Interior Department appropriation bill
(H.R. 11319), the following point of order was raised:
---------------------------------------------------------------------------
15. 102 Cong. Rec. 8725, 84th Cong. 2d Sess.
---------------------------------------------------------------------------
Mr. [Louis C.] Rabaut [of Michigan]: Mr. Chairman, I make a
point of order against certain language in the Tennessee Valley
Authority paragraph as follows: . . .
. . . On page 3, lines 1 to 3 ``, of which $400,000 shall be
derived from this appropriation and $750,000 shall be derived from
proceeds of operations of the Tennessee Valley Authority.''
Mr. Chairman, I make the point of order that all of the
language to which I have referred is legislation on an
appropriation bill. . . .
The Chairman: (16) . . . It is clearly legislation
on an appropriation bill and the point of order is sustained.
---------------------------------------------------------------------------
16. Jere Cooper (Tenn.).
---------------------------------------------------------------------------
Authority for Secretary to Impose Liens
Sec. 46.13 Language in an appropriation bill imposing a charge and lien
against Indian lands until certain obligations are paid was held
legislation and not in order.
On May 14, 1937,(17) the Committee of the Whole was
considering H.R. 6958, an Interior Department appropriation bill. At
one point the Clerk read as follows, and proceedings ensued as
indicated below:
---------------------------------------------------------------------------
17. 81 Cong. Rec. 4598, 4599, 75th Cong. 1st Sess.
---------------------------------------------------------------------------
For the purpose of encouraging industry and self-support among
the Indians and to aid them in the culture of fruits, grains, and
other crops, $165,000 . . . Provided further, That the Secretary of
the Interior is hereby authorized, in his discretion and under such
rules and regulations as he may prescribe, to make advances from
this appropriation to old, disabled, or indigent Indian allottees,
for their support, to remain a charge and lien against their lands
until paid: Provided further, That not to exceed $15,000 may be
advanced to worthy Indian youths to enable them to take educational
courses, including courses in nursing . . . forestry, and other
industrial subjects in colleges, universities, or other
institutions, and advances so made shall be reimbursed in not to
exceed 8 years, under such rules and regulations as the Secretary
of the Interior may prescribe.
Mr. [John] Taber [of New York]: Mr. Chairman, I make a point of
order against the paragraph beginning on page 26, line 4. The point
of order is
[[Page 5973]]
that this is legislation on an appropriation bill and it imposes
discretionary duties upon the Secretary of the Interior. The
language at the bottom of the bill, beginning with ``Provided
further'', line 22, and the last proviso are entirely the same.
They provide that the Secretary of the Interior shall make rules
and regulations and there is no question but what it imposes
additional duties upon the Secretary of the Interior all the way
through.
In lines 17 and 18 the terms of repayment are made subject to
the discretion of the Secretary of the Interior and in lines 9 and
10 it is subject to that same discretion. This is all on page 26.
The whole paragraph is subject to discretion and imposes duties
upon the Secretary. . . .
The Chairman: (18) The Chair would like to inquire
of the gentleman from Oklahoma as to the authority for the language
appearing in lines 1 and 2, page 27, which the Chair will quote:
---------------------------------------------------------------------------
18. Jere Cooper (Tenn.).
---------------------------------------------------------------------------
To remain a charge and lien against their land until paid--
Is there provision in some existing law creating a lien upon
these lands, to which this provision refers?
Mr. [Jed] Johnson of Oklahoma: I cannot say there is provision
in existing law. The only existing law would be the fact this has
been in the bill for several years and, of course, that is not
controlling.
The Chairman: The Chair is ready to rule.
The gentleman from New York makes a point of order against the
entire paragraph beginning in line 4, page 26, extending down to
and including line 9, page 27. The gentleman from New York [Mr.
Taber] in making his point of order invited attention to certain
language appearing in lines 10 and 11, page 26, with reference to
the discretion of the Secretary of the Interior.
The Chair has examined the act commonly referred to and known
as the Snyder Act and invites attention to section 13 of that act,
in which the following appears:
Expenditures of appropriations by Bureau of Indian Affairs:
The Bureau of Indian Affairs, under the supervision of the
Secretary of the Interior, shall direct, supervise, and expend
such moneys as Congress may from time to time appropriate for
the benefit, care, and assistance of the Indians throughout the
United States for the following purposes: General support and
civilization, including education; for industrial assistance
and advancement and general administration of Indian problems.
Further, for general and incidental expenses in connection with
the administration of Indian affairs.
It is the opinion of the Chair that the act to which attention
has been invited confers upon the Secretary of the Interior rather
broad discretionary authority. The Chair is of opinion that the
language to which the gentleman invited attention is not subject to
a point of order, but that the language to which the Chair invited
the attention of the gentleman from Oklahoma with reference to the
provisos does constitute legislation on an appropriation bill not
authorized by the rules of the House. It naturally follows that as
the point of order has to be sustained as to these two provisos, it
has to be sustained as to the entire paragraph. The Chair therefore
sustains the point of
[[Page 5974]]
order made by the gentleman from New York.
Mandating Testimony of Congressmen
Sec. 46.14 To an amendment to a general appropriation bill, an
amendment providing that notwithstanding the provisions of any
other law, the Constitution or court decisions, no Member of
Congress shall refuse to respond to demands for information by
executive agencies or private persons or groups was held to be
legislation.
On June 22, 1972,(19) during consideration in the
Committee of the Whole of a general appropriation bill (H.R. 15585), a
point of order was raised against an amendment to an amendment:
---------------------------------------------------------------------------
19. 118 Cong. Rec. 22102, 22107, 92d Cong. 2d Sess.
---------------------------------------------------------------------------
Amendment offered by Mr. [William S.] Moorhead [of
Pennsylvania]: Page 38 insert between line 6 and line 7 new
section:
No part of the appropriations made by this Act shall be
expended for the Compensation of any person other than those
designated by the President, not to exceed ten persons employed
in the White House Office, who refused to appear before any
committee of the Congress solely on the grounds of ``executive
privilege''; nor shall any part of the appropriations made by
this Act be expended to compensate any employee of the
Executive Office of the President who is employed in or
designated as holding two positions in such Office. . . .
The Clerk read as follows:
Amendment offered by Mr. [Garry E.] Brown of Michigan to
the amendment offered by Mr. Moorhead: At end of that
amendment, insert: ``Provided further, Notwithstanding the
provisions of any other law, the Constitution, or any precedent
of the courts, no Member of the Congress shall refuse to answer
and appropriately respond to any demand for his presence, his
papers, or his records, made by any agency, commission,
Department or person of the executive branch, or any proper
citizen oriented organization or interested person, making such
demand.''
Mr. [Frank T.] Bow [of Ohio]: Mr. Chairman, I make a point of
order against the amendment to the amendment, and I do not think I
need to argue it.
The Chairman: (20) Does the gentleman from Michigan
(Mr. Brown) desire to be heard on the point of order?
---------------------------------------------------------------------------
20. John S. Monagan (Conn.).
---------------------------------------------------------------------------
Mr. Brown of Michigan: Mr. Chairman, I defer to my very
eloquent and intelligent colleague, and I think he makes a good
point.
The Chairman: The point of order is sustained.
Veterans Insurance Fund
Sec. 46.15 Language in a supplemental appropriation bill (1) changing
existing law regarding certain veterans' insurance funds, (2)
specifying
[[Page 5975]]
accounting procedures to be followed in determining assets, (3)
authorizing a future transfer of funds after a determination by the
administrator, and (4) providing for the repayment to the Treasury
of funds so transferred, was conceded to be legislation and ruled
out on a point of order.
On Apr. 6, 1965,(1) during consideration in the
Committee of the Whole of a supplemental appropriation bill (H.R.
7091), a point of order was raised against the following provision:
---------------------------------------------------------------------------
1. 111 Cong. Rec. 7131, 89th Cong. 1st Sess.
---------------------------------------------------------------------------
Veterans Reopened Insurance Fund
All premiums and collections on insurance issued pursuant to
section 725 of title 38, United States Code, shall be credited to
the ``Veterans reopened insurance fund'', established pursuant to
that section, and all payments on such insurance and on any total
disability provision attached thereto shall be made from that fund,
notwithstanding any provisions of that section: Provided, That for
actuarial and accounting purposes, the assets and liabilities
(including liability for repayment of advances hereinafter
authorized, and adjustment of premiums) attributable to each
insured group established under said section 725, shall be
separately determined: Provided further, That such amounts of the
``Veterans special term insurance fund'' as may hereafter be
determined by the Administrator of Veterans' Affairs to be in
excess of the actuarial liabilities of that fund, including
contingency reserves, shall be available for transfer to the
``Veterans reopened insurance fund'' as needed to provide initial
capital: Provided further, That any amounts so transferred shall be
repaid to the Treasury, and shall bear interest payable to the
Treasury at rates established in accordance with section 725(d)(1)
of title 38, United States Code.
Mr. [John P.] Saylor [of Pennsylvania]: Mr. Chairman, I make a
point of order against the language on page 8, line 7 to line 22
inclusive and on page 9, line 1 to line 6 inclusive as being
legislation on an appropriation bill and not within the scope of
the original language authorizing the reopening of veterans'
insurance. . . .
Mr. [Albert] Thomas [of Texas]: Mr. Chairman, may I be heard on
the point of order?
The Chairman: (2) The Chair recognizes the gentleman
from Texas.
---------------------------------------------------------------------------
2. Oren Harris (Ark.).
---------------------------------------------------------------------------
Mr. Thomas: Mr. Chairman, I hope my distinguished friend will
not insist upon the point of order. . . . His point of order is
good if he insists on it. This is a transfer of funds. This is not
an appropriation. . . .
Mr. Saylor: Mr. Chairman, I must insist on the point of order.
The Chairman: The gentleman from Pennsylvania [Mr. Saylor]
makes a point of order against the language on page 8, beginning at
line 7 down through and including the language on page 9, line 6.
The Chair understands the gentleman from Texas [Mr. Thomas]
concedes the point of order.
[[Page 5976]]
The Chair sustains the point of order.
Veterans' Medical Benefits
Sec. 46.16 In an appropriation bill, a provision prohibiting an
appropriation for the Veterans' Administration to be used for
dental treatment, except where certain conditions are determined to
have been met, was held to be legislation.
On Mar. 31, 1954,(3) the Committee of the Whole was
considering H.R. 8583, an independent offices appropriation bill. The
Clerk read as follows, and proceedings ensued as indicated below:
---------------------------------------------------------------------------
3. 100 Cong. Rec. 4258, 83d Cong. 2d Sess.
---------------------------------------------------------------------------
Provided, That no part of this appropriation shall be available
for out-patient dental services and treatment, or related dental
appliances with respect to a service-connected dental disability
which is not compensable in degree unless such condition or
disability is shown to have been in existence at time of discharge
and application for treatment is made within one year after
discharge or by July 27, 1954, whichever is later: Provided, That
this limitation shall not apply to adjunct out-patient dental
services or appliances for any dental condition associated with and
held to be aggravating disability from some other service-incurred
or service-aggravated injury or disease. . . .
Mr. [James P.] Sutton [of Tennessee]: The point of order is
that it is legislation on an appropriation bill. It changes
existing law. . . .
The Chairman: (4) The Chair is prepared to rule.
---------------------------------------------------------------------------
4. Louis E. Graham (Pa.).
---------------------------------------------------------------------------
In the opinion of the Chair, this is legislation upon an
appropriation bill and the point of order is sustained.
Veterans' Burial Expenses
Sec. 46.17 To an army civil functions appropriation bill, an amendment
authorizing payments to next of kin, in lieu of headstones
authorized to be placed on veterans' graves, provided proof is
furnished that suitable headstones are subsequently placed upon
such graves, was held to be legislation and not in order.
On May 26, 1953,(5) during consideration in the
Committee of the Whole of the army civil functions appropriation bill
(H.R. 5376), a point of order was raised against the following
amendment:
---------------------------------------------------------------------------
5. 99 Cong. Rec. 5617, 83d Cong. 1st Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
Amendment offered by Mr. [Henry Frazier] Reams [of Ohio]:
On page 2, line 12, after the figures ``$4,870,000'', strike
the colon, add
[[Page 5977]]
comma, and insert the following: ``$850,000 of which may be
used to pay to next of kin not exceeding $25 in lieu of
headstone or marker for the grave of any deceased person for
which the Secretary of Defense is authorized to furnish a
marker or headstone: Provided, That the Secretary of Defense
receive from the administrator or executor of the estate, or
next of kin, proper proof that there has been purchased and
placed upon the grave of the veteran a suitable marker or
headstone of a value not less than $25.''. . .
Mr. [Glenn R.] Davis [of Wisconsin]: Mr. Chairman, I renew the
point of order on the ground this is legislation on an
appropriation bill.
The Chairman: (6) The gentleman from Wisconsin makes
a point of order that this amendment is legislation on an
appropriation bill. Does the gentleman from Ohio desire to be
heard?
---------------------------------------------------------------------------
6. Clifford R. Hope (Kans.).
---------------------------------------------------------------------------
Mr. Reams: Mr. Chairman, I do not care to be heard on the point
of order.
The Chairman: The Chair is prepared to rule. The Chair thinks
that the amendment offered by the gentleman from Ohio is clearly
legislation on an appropriation bill and, therefore, sustains the
point of order.
Imposing Penalty for Improper Accounting of Members' Expenses
Sec. 46.18 A motion to recommit the legislative branch appropriation
bill with instructions to report it back forthwith with an
amendment providing, inter alia, a criminal penalty for perjury for
improper vouchering of expenditures of funds contained in the bill,
was conceded to contain legislation in violation of Rule XXI clause
2 and was ruled out on a point of order.
On Sept. 1, 1976,(7) during consideration in the House
of the legislative branch appropriation bill (H.R. 14238), a point of
order was raised and sustained against a motion to recommit as
indicated below:
---------------------------------------------------------------------------
7. 122 Cong. Rec. 28883, 28884, 94th Cong. 2d Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
Mr. [R. Lawrence] Coughlin [of Pennsylvania] moves to
recommit the bill, H.R. 14238, to the Committee on
Appropriations, with instructions to that Committee to report
the bill back to the House forthwith, with the following
amendments: On page 7, after line 24, insert the following new
section: . . .
``Expenditure of any appropriation contained in this Act,
disbursed on behalf of any Member or Committee of the House of
Representatives, shall be limited to those funds paid against a
voucher, signed and approved by a Member of the House of
Representatives, stating under penalty of perjury, that the
voucher is for official expenses as authorized by law: Provided
further, That any Member of the House of Representatives who
willfully makes and subscribes to any such voucher which
contains a written declaration that it is made under the
penalties of perjury and which he does not believe
[[Page 5978]]
at the time to be true and correct in every material matter,
shall be guilty of a felony and, upon conviction thereof, shall
be fined not more than $2,000 or imprisoned for not more than
five years, or both.''. . .
Mr. [John D.] Dingell [of Michigan]: Mr. Speaker, I make a
point of order against the motion to recommit. . . .
Mr. Speaker, the motion to recommit falls in violation of the
rules against legislation in an appropriation bill. Under the rules
of the House, Mr. Speaker, a motion to recommit is subject to the
same germaneness tests as any other amendment to a piece of
legislation.
Mr. Speaker, I therefore make a point of order against the
motion on the grounds that it constitutes an attempt to legislate
in an appropriation bill. . . .
On page 3, there is a requirement that any Member who makes a
willful statement subscribing any voucher shall be guilty of the
penalties of perjury.
This adds essentially a new amendment to the Criminal Code,
which most properly can be found in title 18 of the United States
Code, and it imposes further, Mr. Speaker, a requirement that such
act shall constitute a felony which will be punishable by not more
than $2,000 or subject to imprisonment of not more than 5 years. .
. .
Mr. Coughlin: Mr. Speaker, I rise in opposition to the point of
order that has been raised. . . .
Mr. Speaker, with respect to the point of order addressed to
the execution of vouchers under penalties of perjury, that does not
impose a significant additional duty in compliance with the facts
that those vouchers must already be executed by the Members
certifying that they are for official expenses. This motion says
they would be executed under penalty of perjury.
The additional amendment would concede the point of order as it
applies to the second paragraph on page 3 of the motion; but I
think it would be beneficial to the Members to have that
explanation there; and I would hope that the point of order would
be withdrawn as to that point. . . .
The Speaker: (8) The Chair is prepared to rule. The
Chair is going to sustain the point of order. The gentleman from
Pennsylvania has conceded one portion of the point of order, and
with that the entire motion to recommit is subject to a point of
order.
---------------------------------------------------------------------------
8. Carl Albert (Okla.).
---------------------------------------------------------------------------
[[Page 5979]]
CHAPTER 26
Unauthorized Appropriations; Legislation on Appropriation Bills
D. PROVISIONS AS CHANGING EXISTING LAW: APPROPRIATIONS SUBJECT TO
CONDITIONS
Sec. 47. Conditions Contrary to or Not Required by Law
The precedents in this section generally support the view that
provisions in an appropriation bill which make funds available only
after a specified condition has occurred will be ruled out as
legislation, if the condition specifies actions or circumstances which
are contrary to, or not contemplated in, existing law. Thus, provisions
making an appropriation contingent upon actions not already required by
law may be ruled out of order, while a contingency may be permitted
provided the contingency itself has previously been authorized in law.
Of course, a seeming ``condition'' may be in the nature of a
permissible limitation, as where funds may be made available for use by
or on behalf of designated beneficiaries only if such beneficiaries
fulfill certain conditions or become qualified to receive the benefit
of the funds in the manner prescribed,(9) if that prescribed
manner is not shown to contravene existing law.
---------------------------------------------------------------------------
9. See the ``note on contrary rulings,'' following Sec. 53.6, infra,
especially the reference to the ruling of June 11, 1968.
---------------------------------------------------------------------------
The legislative character of a condition may consist in imposing
additional duties, not already required in law, on federal
officials.(10) Similarly, a condition may be seen as
amounting to legislation if it affects funds in other acts rather than
being limited to funds contained in the bill. And in some cases, even
where the point of order has been based on the legislative character of
a provision, the ruling itself may in fact turn on issues of
germaneness, as where an amendment attempting to make the availability
of funds depend on an unrelated contingency is seen as beyond the scope
of the bill.(11)
---------------------------------------------------------------------------
10. The imposition of duties on state or local officials raises various
issues which are discussed in Sec. 53, infra.
11. See, for example, Sec. 48.11, infra.
---------------------------------------------------------------------------
It is important to distinguish between precedents in which the
whole appropriation is made contingent upon an event or circumstance
and those in which the disbursement to a particular participant is
conditioned on the occurrence of an event. In either case, the weight
of precedent would disqualify such conditions as legislative in effect.
Some of the decisions in this section, section 7, supra, and section
48, infra, are similar in language but
[[Page 5980]]
are carried in a particular part of the chapter to illustrate the
different approaches taken by the Chair in reaching the conclusion that
the amendment is not strictly negative and
limiting. -------------------
Action by Federal Official Disbursing Funds; ``No Funds Unless or
Until''
Sec. 47.1 An amendment forbidding expenditure of an appropriation
``unless'' action contrary to existing law is taken is legislation
and not in order as a limitation: an amendment providing that funds
appropriated for International Information, Department of State,
shall not be available for any broadcast of information about the
United States until the radio script for such broadcast has been
approved by the Daughters of the American Revolution was held to be
legislation and not in order.
On July 26, 1951,(12) during consideration in the
Committee of the Whole of a general appropriation bill (H.R. 4740), a
point of order was raised against the following amendment:
---------------------------------------------------------------------------
12. 97 Cong. Rec. 8960, 82d Cong. 1st Sess.
---------------------------------------------------------------------------
Amendment offered by Mr. [John T.] Wood of Idaho: Page 15, line
25, before the period insert a colon and the following: ``Provided
further, That funds appropriated herein shall not be available for
any broadcast of any information about the United States until the
radio script for such broadcast has been submitted to and approved
by a committee of members of the Daughters of the American
Revolution, appointed by the president general of such
organization.''
Mr. [John J.] Rooney [of New York]: Mr. Chairman, I make a
point of order against the amendment on the ground that it is
legislation on an appropriation bill.
The Chairman: (13) Does the gentleman from Idaho
desire to be heard on the point of order?
---------------------------------------------------------------------------
13. Jere Cooper (Tenn.).
---------------------------------------------------------------------------
Mr. Wood of Idaho: Yes, Mr. Chairman.
The Chairman: The Chair will only hear the gentleman on the
point of order.
Mr. Wood of Idaho: Mr. Chairman, I submit that this is a
limitation and not legislation.
The Chairman: Has the gentleman completed his statement on the
point of order?
Mr. Wood of Idaho: Yes.
The Chairman: The Chair is prepared to rule. . . .
The Chair invites attention to the fact that the amendment
definitely provides for certain things to be done and invites
attention to a decision ren
[[Page 5981]]
dered by the distinguished gentleman from Michigan [Mr. Michener]
in which it is stated:
An amendment withholding expenditures of appropriations
unless and until certain books were supplied free to the
National Library for the Blind is ruled out of order.
The amendment very clearly contains legislation which is sought
to be offered to an appropriation bill in violation of the rules of
the House.
The Chair sustains the point of order.
Condition on Disbursement to Recipient
Sec. 47.2 An amendment to a supplemental appropriation bill, making the
payment of certain contractual obligations of the United States
contingent upon the adoption of a compromise agreement or upon
litigation resolving the dispute, was held to impose a condition on
disbursement of funds not required by existing law and was ruled
out on a point of order.
On May 11, 1971,(14) during consideration in the
Committee of the Whole of a supplemental appropriation bill (H.R.
8190), a point of order was raised against the following amendment:
---------------------------------------------------------------------------
14. 117 Cong. Rec. 14468, 92d Cong. 1st Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
Bureau of Mines
helium fund
The Secretary is authorized to borrow from the Treasury for
payment to the helium production fund pursuant to section 12(a)
of the Helium Act, to carry out the provisions of the Act and
contractual obligations thereunder, including helium purchases,
to remain available without fiscal year limitation,
$15,077,000, in addition to amounts heretofore authorized to be
borrowed.
Mr. [Charles A.] Vanik [of Ohio]: Mr. Chairman, I offer an
amendment.
The Clerk read as follows:
Amendment offered by Mr. Vanik: Page 6, line 9, after the
word ``borrowed'' strike out the period, insert a comma
``provided, however, that none of the funds appropriated by
this act will be disbursed to any individual contractor until
the claims of that contractor have been determined either by
agreement or by litigation.''
Mrs. [Julia Butler] Hansen of Washington: Mr. Chairman, on this
amendment I make a point of order.
The Chairman: (15) The gentlewoman will state her
point of order.
---------------------------------------------------------------------------
15. Wayne N. Aspinall (Colo.).
---------------------------------------------------------------------------
Mrs. Hansen of Washington: The wording is ``until the claims of
that contractor have been determined either by agreement or by
litigation.''
That is legislation on an appropriation bill and extends the
act beyond the intention.
The Chairman: Does the gentleman from Ohio desire to be heard
on the point of order?
Mr. Vanik: Mr. Chairman, I believe it has been well established
in this
[[Page 5982]]
Chamber that a limitation on expenditures is a perfectly valid
amendment to an appropriation bill.
I might say, Mr. Chairman, the amendment should read, ``full
claims of the contractors have been determined.''
I believe it has been well established that this type of
amendment is in order on this kind of bill.
The Chairman: The Chair is ready to rule.
The language of the amendment does constitute legislation on an
appropriation bill, and in this particular situation provides for a
condition subsequent.
Therefore, the Chair will have to sustain the point of order.
Contingent Upon Enactment of Authorization
Sec. 47.3 Language in an appropriation bill providing funds for
projects not yet authorized by law is legislation and not in order.
On Sept. 5, 1961,(16) during consideration in the
Committee of the Whole of a general appropriation bill (H.R. 9033), a
point of order was raised against the following provision:
---------------------------------------------------------------------------
16. 107 Cong. Rec. 18179, 87th Cong. 1st Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
Title V--Peace Corps
Funds Appropriated to the President
Peace Corps
For expenses necessary to enable the President to carry out
the provisions of the Peace Corps Act, including purchase of
not to exceed sixteen passenger motor vehicles for use outside
the United States, $20,000,000: Provided, That this paragraph
shall be effective only upon enactment into law of S. 2000 or
H.R. 7500, Eighty-seventh Congress, or similar legislation to
provide for a Peace Corps.
Mr. [Edgar W.] Hiestand [of California]: Mr. Chairman, a
parliamentary inquiry.
The Chairman: (17) The gentleman will state it.
---------------------------------------------------------------------------
17. Wilbur D. Mills (Ark.).
---------------------------------------------------------------------------
Mr. Hiestand: Title V, which has just been read, has not yet
been authorized and therefore is subject to a point of order.
The Chairman: Does the gentleman from Louisiana desire to be
heard on the point of order?
Mr. [Otto E.] Passman [of Louisiana]: We concede the point of
order, Mr. Chairman.
The Chairman: The gentleman from Louisiana concedes the point
of order and the Chair sustains the point of order made by the
gentleman from California (Mr. Hiestand).
Parliamentarian's Note: A conditional appropriation based on
enactment of authorization is a concession on the face of the language
that no prior authorization exists. See Sec. 7, supra, for further
discussion of the necessity of prior authorization for appropriations.
Sec. 47.4 In a supplemental appropriation bill, a paragraph making an
appropriation
[[Page 5983]]
contingent upon the subsequent enactment of authorizing language is
in violation of Rule XXI clause 2.
On May 3, 1967,(18) during consideration in the
Committee of the Whole of a supplemental appropriation bill (H.R.
9481), a point of order was raised against the following provision:
---------------------------------------------------------------------------
18. 113 Cong. Rec. 11589, 90th Cong. 1st Sess. See Parliamentarian's
Note in Sec. 47.3, supra, as to appropriations conditioned on
subsequent authorization.
---------------------------------------------------------------------------
The Clerk read as follows:
Chapter VIII
Military Construction
Family Housing
homeowners assistance fund, defense
For the Homeowners Assistance Fund, established pursuant to
section 1013(d) of the Demonstration Cities and Metropolitan
Development Act of 1966 (Public Law 89-754, approved November
3, 1966), $5,500,000, to remain available until expended:
Provided, That this paragraph shall be effective only upon
enactment into law of S. 1216, Ninetieth Congress, or similar
legislation.
Mr. [Durward G.] Hall [of Missouri]: Mr. Chairman, a point of
order.
The Chairman: (19) The gentleman will state his
point of order.
---------------------------------------------------------------------------
19. James G. O'Hara (Mich.).
---------------------------------------------------------------------------
Mr. Hall: Mr. Chairman, I wish to make a point of order asking
the Chair to strike chapter 8 of the second supplemental
appropriation bill, to be found on page 17, lines 6 through 16
thereof, for the reason there has been no authorization of this
appropriation and that it is contrary to rule XXI (2) of this body.
Consideration of S. 1216 is now before this body's Committee on
Rules, it is controversial, it has mixed jurisdictional parentage,
and it came out of the Committee on Armed Services with eight or
more opposing votes. It can be defeated on the floor.
The Chairman: Does the gentleman from Florida seek to be heard
on this point of order?
Mr. [Robert L. F.] Sikes [of Florida]: I do, Mr. Chairman.
Mr. Chairman, as the bill states and as the report states,
there is a requirement for the enactment of authorizing
legislation. The bill which is before the House clearly requires
that appropriations for the acquisition of properties must be
authorized by a military construction authorization act, and that
no moneys in the fund may be used except as may be provided in an
appropriation act, and it would clearly protect the Congress and
fulfill the requirements of the law.
What we are seeking to do is to put into operation an immediate
program. If we do not provide funds now for people who need money
for losses in their property as a result of base closures, it is
going to be some months before it can be done, probably, in the
regular appropriation bill.
Of course, the language is subject to a point of order. We
concede that. If the gentleman insists on his point of order, that
is the story, but the homeowners will be the ones who suffer
unnecessarily.
[[Page 5984]]
The Chairman: The Chair is prepared to rule. As the gentleman
from Florida has conceded, the language objected to by the
gentleman from Missouri is subject to a point of order in that no
authorization has been enacted into law. The Chair, therefore,
sustains the point of order.
Sec. 47.5 An item of appropriation providing for an expenditure not
previously authorized by law is not in order; and delaying the
availability of the appropriation pending enactment of an
authorization does not protect the item of appropriation against a
point of order under Rule XXI clause 2.
On Apr. 26, 1972,(20) during consideration in the
Committee of the Whole of a supplemental appropriation bill (H.R.
14582), a point of order was raised against the following provision:
---------------------------------------------------------------------------
20. 118 Cong. Rec. 14455, 92d Cong. 2d Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
Federal Railroad Administration
grants to national railroad passenger corporation
To enable the Secretary of Transportation to make grants to
the National Railroad Passenger Corporation, as authorized by
section 601 of the Rail Passenger Service Act of 1970, as
amended, $170,000,000, to remain available until expended:
Provided, That this appropriation shall be available only upon
the enactment into law of authorizing legislation by the
Ninety-second Congress. . . .
Mr. [Charles A.] Vanik [of Ohio]: Mr. Chairman, I make a point
of order against the $170 million appropriation for Amtrak.
The Chairman: (1) The gentleman will state his point
of order.
---------------------------------------------------------------------------
1. Jack B. Brooks (Tex.).
---------------------------------------------------------------------------
Mr. Vanik: Mr. Chairman, the authorization has not yet been
made. The fact that the authorization passed the House of
Representatives would not make the appropriation valid. . . .
Mr. [George H.] Mahon [of Texas]: Mr. Chairman, the House has
passed the authorization bill. It has not been enacted into law. I
think the point of order is well taken.
The Chairman: Does the gentleman from Texas concede the point
of order?
Mr. Mahon: I concede the point of order, Mr. Chairman. . . .
The Chairman: The Chair understands that the chairman of the
committee concedes the point of order. Therefore, the point of
order is sustained.
Requiring Application of Standards not Demonstrably Required by Law
Sec. 47.6 It is not in order on a general appropriation bill to
require, as a condition to the availability of funds, the
imposition of standards of quality or performance not required by
law, whether or
[[Page 5985]]
not such standards are applicable by law to other programs or
activities.
On Nov. 18, 1981,(2) an amendment to a general
appropriation bill prohibiting the use of funds therein to procure
foreign-made items unless their inspection for quality assurance ``uses
the same standards'' which would be required for domestic products by
the Department of Defense was ruled out as legislation imposing
additional duties absent any showing that existing law already required
such inspection of items produced in foreign countries. The proceedings
during consideration of the defense appropriation bill,(3)
were as follows:
---------------------------------------------------------------------------
2. 127 Cong. Rec. 28076, 28077, 97th Cong. 1st Sess.
3. H.R. 4995.
---------------------------------------------------------------------------
Mr. [Jim] Dunn [of Michigan]: Mr. Chairman, I offer an
amendment.
The Clerk read as follows:
Amendment offered by Mr. Dunn: Page 68 after line 15,
insert the following:
Sec. 792. None of the funds appropriated in this Act may be
available for the procurement of any item manufactured in a
foreign country unless, during manufacture, the inspection of
such item for quality assurance uses the same standards of
inspection during manufacture which would be required by the
Department of Defense if such item were manufactured
domestically.
Mr. Dunn (during the reading): Mr. Chairman, I ask unanimous
consent that the amendment be considered as read and printed in the
Record.
The Chairman: (4) Is there objection to the request
of the gentleman from Michigan?
---------------------------------------------------------------------------
4. Daniel D. Rostenkowski (Ill.).
---------------------------------------------------------------------------
There was no objection
Mr. [Bill] Frenzell [of Minnesota]: Mr. Chairman, I rise to
make a point of order against the amendment.
The Chairman: The Chair recognizes the gentleman from Minnesota
(Mr. Frenzel) on his point of order.
Mr. Frenzel: Mr. Chairman, in my judgment the amendment is
contrary to rule XXI, clause 2, which provides that no amendment
changing existing law can be made on an appropriation bill. The
amendment clearly gives the Secretary additional duties, to
determine what kind of quality assurance or inspection is required
under the terms of the amendment and, therefore, the amendment
constitutes legislation on an appropriation bill.
Mr. Chairman, I believe the point of order should be sustained.
The Chairman: Does the gentleman from Michigan wish to be heard
on the point of order?
Mr. Dunn: Mr. Chairman, the gentleman, I believe, is incorrect.
The Secretary already has that discretion. We are simply, in this
amendment, trying to make certain that the powers that he uses for
national companies are the same as for international companies. He
already has that power. It does not change his power.
The Chairman: As the Chair reads the amendment, there is
clearly a mandatory authority imposing additional duties, absent
any showing that
[[Page 5986]]
existing law already requires such inspection of items produced in
foreign countries, the Chair sustains the point of order made by
the gentleman from Minnesota (Mr. Frenzel).
Parliamentarian's Note: This decision effectively overrules the
ruling of the Chair on July 28, 1959,(5) wherein an
amendment denying use of funds to finance construction projects abroad
that had not met the criteria used in determining the feasibility of
flood control projects in the United States was held a proper
limitation, despite any lack of showing that existing law required
domestic standards to be applied to foreign construction projects. It
should be noted that it is not just the imposition of new standards
that constitutes legislation rendering language subject to a point of
order, but the requirement of new procedures or duties involved in
making the standards applicable in a setting not contemplated in the
existing law.
---------------------------------------------------------------------------
5. 105 Cong. Rec. 14522, 14524, 86th Cong. 1st Sess.
---------------------------------------------------------------------------
Presidential Appointment to be Made
Sec. 47.7 To an appropriation bill, an amendment proposing that no part
of the appropriation therein be paid to any commissioned officer or
any civilian employee in the office of the Judge Advocate, unless
such officer or employee is subject to the authority of a general
counsel appointed by the President, who shall be the chief legal
officer, was conceded to be legislation and therefore held not in
order.
On May 12, 1955,(6) during consideration in the
Committee of the Whole of the Defense Department appropriation bill
(H.R. 6042), a point of order was raised against an amendment as
described above. The proceedings were as follows:
---------------------------------------------------------------------------
6. 101 Cong. Rec. 6245, 6246, 84th Cong. 1st Sess. See Sec. 41.2,
supra, for the language of the amendment.
---------------------------------------------------------------------------
Mr. [George H.] Mahon [of Texas]: Mr. Chairman, it is obvious
that this is legislation on an appropriation bill and subject to a
point of order and I make the point of order against the amendment.
The Chairman: (7) Does the gentleman from New Jersey
desire to be heard on the point of order?
---------------------------------------------------------------------------
7. Eugene J. Keogh (N.Y.).
---------------------------------------------------------------------------
Mr. [Frank] Thompson [Jr.] of New Jersey: Mr. Chairman, I
concede the point of order. . . .
The Chairman: The point of order is sustained.
Funds Made Subject to Audit
Sec. 47.8 An amendment to a legislative branch appropria
[[Page 5987]]
tion bill denying the obligation or expenditure of certain funds
contained therein unless such funds were subject to audit by the
Comptroller General was ruled out of order as legislation where it
appeared that the amendment was intended by its proponents to
extend and strengthen the authority of the Comptroller General
under law to audit legislative accounts.
On June 14, 1978,(8) H.R. 12935, making appropriations
for the legislative branch, was under consideration in Committee of the
Whole. The following amendment was offered and discussed:
---------------------------------------------------------------------------
8. 124 Cong. Rec. 17650, 17651, 95th Cong. 2d Sess.
---------------------------------------------------------------------------
Amendment offered by Mr. [R. Lawrence] Coughlin [of
Pennsylvania]: On page 6, after line 23, insert the following new
section:
Sec. 102. (a) None of the funds appropriated by any
provision described in subsection (b) shall be expended or
obligated for any purpose specified in such provision unless
such funds so expended or obligated are subject to audit by the
Comptroller General of the United States. . . .
Mr. [George E.] Shipley [of Illinois]: Mr. Chairman, I reserve
a point of order on the amendment.
Mr. Coughlin: Mr. Chairman, this is identical to an amendment
offered last year by the gentlewoman from Massachusetts (Mrs.
Heckler) and the gentlewoman from New York (Mrs. Chisholm) to
provide for a GAO audit of Members and committee accounts. It is
the identical amendment that was raised at that time. It was not
objected to on a point of order. . . .
Mrs. [Margaret M.] Heckler [of Massachusetts]: . . . Mr.
Chairman, once again on my own behalf and for my distinguished
colleague from New York (Mrs. Chisholm) I offer an amendment to the
legislative branch appropriations to make all tax-funded accounts
of Members subject to an audit by the General Accounting Office.
I offer this amendment with a twofold purpose in mind. First,
the amendment will bring Congress in line with other Federal
agencies and give us, as Members, protection from accounting
mistakes that happen--sometimes too easily--when there are no
guidelines or procedures as is currently the case. Second, the
amendment will go a long way toward restoring public confidence in
the Congress by creating an accounting system for public money
expended by Congress for its own operation.
I do not believe any Member of Congress has the time to
maintain these accounts. Indeed, this function is always delegated.
In my own case, my office manager handles the accounts, and, in
addition, I have hired an outside accountant to oversee the
process. Nonetheless, questions remain. I believe it is time to get
the professionals to give us the answers.
When errors are made--for whatever reason--the Member of
Congress is
[[Page 5988]]
held accountable. In my judgment, a uniform, organized system of
audits would not be an adversary to the Congress, rather, it would
be a protection against the innumerable uncertainties of
interpretation and variables which can make even the most carefully
managed accounts vulnerable to public criticism.
The GAO audit would make public accountability a reality for
the Congress.
Congress has never hesitated to require audits of other
agencies. I believe the time has come when Congress should submit
to an audit itself. . . .
Mr. Chairman, the operations of the Comptroller General under
this amendment would continue as under existing circumstances in
that site at the Capitol where the office is presently located. The
authority would provide an audit of Members' accounts and committee
accounts. It would provide that authority to be utilized by the
GAO.
Mr. Shipley: Mr. Chairman, if the gentleman will yield further,
does it extend in any way the present audit system that we have now
in the House?
Mr. Coughlin: Mr. Chairman, I yield to the gentlewoman from
Massachusetts.
Mrs. Heckler: Mr. Chairman, it extends the authority that now
exists in law but is not necessarily a change in existing law. It
affirms the authority of the GAO which presently exists in the
House; however, I do not believe that the GAO is able to examine
Members' accounts and this amendment clarifies that authority.
However, it does not mandate audits across the board of every
Member at any particular time.
Mr. Shipley: Mr. Chairman, would the gentlewoman answer another
question for me again. I am not quite clear in my own mind what
exactly would this amendment require the Comptroller General to do
specifically?
Mrs. Heckler: I believe that this amendment would provide an
expansion of the number of accounts which the GAO is presently
auditing including the tax-funded accounts of Members of Congress
and our legislative committees, as covered by the general
legislative appropriation bill. We are in this bill dealing with an
appropriation of $992 million. I believe that these public funds
should be subject to audit. This amendment merely affirms the legal
authority to the GAO to conduct such audits. . . .
Mr. Shipley: . . . Mr. Chairman, I object to the amendment and
make a point of order against it on the grounds that it imposes
additional duties on the Comptroller General and, as such, is in
violation of clause 2, rule XXI of the House. The additional duties
implied by the amendment might involve the Comptroller General
insisting that time and attendance reporting systems be set up in
Members and committee offices and may require setting up annual and
sick leave systems and involve examination of Members' personal
diaries, perhaps even their personal financial records. These are
duties and procedures clearly beyond the offices of the Comptroller
General's present audit authority. Under paragraph 842 of clause 2,
rule XXI:
An amendment may not impose additional duties, not required
by law, or make the appropriation contingent upon the
performance of such duties . . . then it assumes the
[[Page 5989]]
character of legislation and is subject to a point of order. .
. .
Mr. Coughlin: Mr. Chairman, let me say that the amendment
imposes no additional duties on the General Accounting Office. It
proposes that these accounts be subject to audit by the GAO.
Title 31, section 67, of the United States Code annotated says
as follows:
. . . the financial transactions of each executive,
legislative, and judicial agency, including but not limited to
the accounts of accountable officers, shall be audited by the
General Accounting Office in accordance with such principles
and procedures and under such rules and regulations as may be
prescribed by the Comptroller General of the United States.
In a memorandum to the Comptroller General from the general
counsel of the General Accounting Office, the following language
appeared:
Our authority under the Budget and Accounting Act, 1921, to
investigate all matters relating to the receipt, disbursement,
and application of public funds also extends to the Congress.
I continue to quote from the memorandum, as follows:
Similarly, our authority in the Accounting and Auditing Act
of 1950 to audit all financial transactions, not limited to
accountable officer transactions, extends to legislative
agencies . . .
Mr. Chairman, it is very clear that the General Accounting
Office already has the authority and the duty to audit the accounts
of the legislative branch, and this amendment in no way expands or
extends that authority. The General Accounting Office has taken a
position that it is interested in having an expression of the will
of the legislative branch as to whether it wishes the General
Accounting Office to carry out that function. This amendment would
be an expression of that will.
Mr. Chairman, the amendment would in no way expand the
authority of the General Accounting Office or impose additional
duties on the General Accounting Office; it would only make these
accounts subject to audit. . . .
The Chairman Pro Tempore: (9) The Chair is ready to
rule.
---------------------------------------------------------------------------
9. Daniel D. Rostenkowski (Ill.).
---------------------------------------------------------------------------
The Chair certainly agrees that the language in the amendment
is ambiguous. The Chair takes into account, however, the debate,
and the debate as observed by the Chair indicates the amendment
certainly does extend the authority of the Comptroller General and
is subject to a point of order.
The Chair does recognize that there are conflicting
interpretations of the amendment under discussion. However, the
Chair has a duty under the precedents to construe the rule against
legislation strictly where there is an ambiguity. The Chair feels
he must sustain the point of order based on the interpretations
given the amendment during the debate.
Parliamentarian's Note: The amendment in this instance was ruled
out of order because it appeared that it was intended by its proponents
to work a change in the law and to require audits, rather than simply
state a condition precedent for obligation and expenditure of the
funds. (A sub
[[Page 5990]]
sequent amendment which denied the use of funds not subject to audit
``as provided by law'' was offered and adopted.)
It should be noted that the June 14, 1978, ruling above effectively
overrules an earlier ruling (see 116 Cong. Rec. 18412, 91st Cong. 2d
Sess., June 4, 1970), in which it had been held that language in a
general appropriation bill, providing that no funds in the bill for
``International Financial Institutions'' shall be available for
activities which are not subject to audit by the Comptroller General,
was in order as a limitation on the use of funds in the bill.
Barring Funds for Enforcement of Current Law or Regulations
Sec. 47.9 It is not in order in a general appropriation bill to deny
the use of funds for an executive agency to formulate or carry out
regulations except for regulations in effect on a prior date, which
are no longer permitted to be formulated or enforced under the
current state of the law.
On Aug. 19, 1980,(10) the following amendment was
offered to H.R. 7583 (Treasury Department and Postal Service
appropriations for fiscal 1981):
---------------------------------------------------------------------------
10. 126 Cong. Rec. 21978-80, 96th Cong. 2d Sess.
---------------------------------------------------------------------------
Amendment offered by Mr. [John M.] Ashbrook [of Ohio]: On page
8, after line 22, insert the following new section:
``Sec. 103. None of the funds made available pursuant to the
provisions of this Act shall be used to formulate or carry out any
rule, policy, procedure, guideline, regulation, standard, or
measure which would cause the loss of tax-exempt status to private,
religious, or church-operated schools under section 501(c)(3) of
the Internal Revenue Code of 1954 unless in effect prior to August
22, 1978.''
A point of order against the amendment was sustained. See the
proceedings discussed in full in Sec. 22.28, supra.
Sec. 47.10 An amendment to a general appropriation bill denying use of
the funds therein for the Treasury Department to apply certain
provisions of the Internal Revenue Code other than under audit
practices, interpretations, regulations, and court decisions in
effect on a prior date was ruled out of order as legislation since
admittedly requiring the executive branch to follow laws no longer
in effect in order to make the appropriation available.
[[Page 5991]]
On June 7, 1978,(11) during consideration in the
Committee of the Whole of the Department of the Treasury and Postal
Service appropriation bill (H.R. 12930), a point of order raised
against an amendment was sustained as follows:
---------------------------------------------------------------------------
11. 124 Cong. Rec. 16655, 16656, 95th Cong. 2d Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
Amendment offered by Mr. [Leon E.] Panetta [of California]:
Page 30, after line 24, insert the following new section:
Sec. 510. None of the funds available under this Act shall
be used by the Treasury Department to make or apply any
determination as to whether any individual is an employee for
purposes of chapter 21 (relating to Federal Insurance
Contributions Act), 23 (relating to Federal Unemployment Tax
Act), or 24 (relating to collection of income tax at source on
wages) of the Internal Revenue Code of 1954 other than under
the audit practices, interpretations, regulations, and federal
court decisions in effect on December 31, 1975. . . .
Mr. [Tom] Steed [of Oklahoma]: . . . Mr. Chairman, I make a
point of order against the proposed amendment, because it is
legislation on an appropriations bill, in violation of clause 2 of
rule XXI. This amendment would impose new duties on an executive
officer.
The Commissioner and employees of IRS would be required to make
a determination as to whether or not a ``certain audit,
interpretation, regulation, or Federal appellate court decision''
is ``inconsistent with audit practices, interpretations,
regulations, and Federal court decisions in effect on December 31,
1975.''
The executive officer would be required by this amendment to
interpret Federal appellate court decisions in 1975, interpret
court decisions now, and make a decision as to whether or not they
are inconsistent. This clearly imposes new duties on an executive
officer and is clearly in violation of clause 2 of rule XXI. This
can be found in section 843, page 572 of the current rules of the
House of Representatives.
As further precedent, Mr. Chairman, I would like to cite the
following from Cannon's Procedures in the House of Representatives,
section 843 on page 64:
In construing an amendment offered as a limitation the
practice of the House relating thereto should be construed
strictly in order to avoid incorporation of legislation in
appropriation bills under guise of limitations.
That is in volume VII, Cannon's Precedents, section 1720.
Further quoting:
The purpose rather than the form of a proposed limitation
is the proper criterion by which its admissibility should be
judged, and if its purpose appears to be a restriction of
Executive discretion to a degree that may be fairly termed a
change in policy rather than a matter of administrative detail
it is not in order.
That is in volume VII, Cannon's Precedents, section 1691.
Further quoting:
Legislation may not be proposed under the form of a
limitation.
That is section 1607.
[[Page 5992]]
Further quoting, this time from volume VII, Cannon's
Precedents, section 1628:
And a provision which under the guise of limitation repeals
or modifies existing law is legislation and is not in order on
an appropriation bill.
For these reasons, Mr. Chairman, it is obvious that this
amendment would impose additional duties on an executive officer
and, therefore, clearly is subject to a point of order. . . .
Mr. Panetta: Mr. Chairman, in response to the point of order, I
just make two points.
One, the fact that this is a limitation on an expenditure of
funds, this is permitted under the House rules, that is, it is
permitted where it involves small administrative detail, and that
is essentially what we are dealing with here. We are not dealing
with reinterpretation. We are not requiring new interpretation by
the Internal Revenue Service, but what we are doing is telling them
to abide by those procedures that were in effect in 1975.
Mr. Chairman, for those reasons, I think the amendment is in
order.
The Chairman: (12) If the gentleman from California
(Mr. Panetta) would permit the Chair to direct a question to the
gentleman for clarification, as the Chair understood the statement
of the gentleman's colleague from California in the concluding
remarks, the amendment does, in fact, does it not, require going
back to the law as it was prior to December 31, 1975, rather than
the law as it exists today?
---------------------------------------------------------------------------
12. B. F. Sisk (Calif.).
---------------------------------------------------------------------------
Mr. Panetta: Mr. Chairman, that is correct.
The Chairman: The Chair appreciates the candor of the gentleman
from California (Mr. Panetta) in answer to the question. The Chair
will state that he certainly did not mean to put the gentleman in
this position purposely, but in view of the Chair's understanding
of the language contained herein, he felt constrained to ask the
question.
The statement of the gentleman from California (Mr. Panetta)
would indicate that in fact the amendment would require a return to
the law as it existed prior to December 31, 1975, and, therefore,
the amendment does change existing law and constitutes legislation
on an appropriation bill.
Therefore, the Chair sustains the point of order.
CHAPTER 26
Unauthorized Appropriations; Legislation on Appropriation Bills
D. PROVISIONS AS CHANGING EXISTING LAW: APPROPRIATIONS SUBJECT TO
CONDITIONS
Sec. 48. Conditions Precedent to Spending
Requiring New Contractual Arrangements
Sec. 48.1 To an appropriation bill, an amendment making the money
available on certain contingencies which would change the lawful
mode of payment is legislation and not in order.
On Mar. 27, 1952,(13) during consideration in the
Committee of the Whole of the Interior Department appropriation bill
(H.R.
[[Page 5993]]
7176), a point of order was raised against the following provision:
---------------------------------------------------------------------------
13. 98 Cong. Rec. 3064, 82d Cong. 2d Sess.
---------------------------------------------------------------------------
Mr. [Toby] Morris [of Oklahoma]: Mr. Chairman, I make a point
of order against the language beginning on line 24, page 13, and
ending on line 12, page 14 inclusive as follows:
Provided further, That until such time as a repayment
contract, covering the proper share of the cost of the
facilities hereinafter stated, shall have been entered into
between the United States and the prospective water users, no
part of this appropriation shall be available for the
initiation of construction of any dam or reservoir where the
dominant purpose thereof is storage of water for irrigation or
water supply, or any tunnel, canal or conduit for water, or
water distribution system related to such dam or reservoir:
Provided further, That funds appropriated in this act and
heretofore for all such structures now under construction,
shall not be available after January 1, 1954, unless such
repayment contracts shall have been entered into by the
prospective water users.
Mr. Chairman, I make the point of order against the language on
the ground that it is legislation on an appropriation bill, and
that it seeks to change existing law.
The Chairman: (14) The gentleman refers to the
proviso appearing in line 25, page 13, and the proviso starting at
line 8 on page 14?
---------------------------------------------------------------------------
14. Jere Cooper (Tenn.).
---------------------------------------------------------------------------
Mr. Morris: I do, Mr. Chairman.
The Chairman: Does the gentleman from Ohio desire to be heard
on the point of order?
Mr. [Michael J.] Kirwan [of Ohio]: No, Mr. Chairman, we concede
the point of order.
The Chairman: The gentleman from Oklahoma has made a point of
order, as referred to by him, and the gentleman from Ohio concedes
the point of order. Therefore, the Chair sustains the point of
order.
Audit by Comptroller General
Sec. 48.2 To a legislative appropriation bill, an amendment requiring
the imposition of an auditing and reporting procedure before funds
can be expended was ruled out as legislation.
On Apr. 10, 1964,(15) during consideration in the
Committee of the Whole of the legislative appropriation bill (H.R.
10723), a point of order was raised against the following amendment:
---------------------------------------------------------------------------
15. 110 Cong. Rec. 7642, 88th Cong. 2d Sess.
---------------------------------------------------------------------------
Mr. Oliver P. Bolton [of Ohio]: Mr. Chairman, I offer an
amendment.
The Clerk read as follows:
Amendment offered by Mr. Oliver P. Bolton: Page 26, after
line 22 insert the following:
``Sec. 104. No funds appropriated in this Act for the House
of Representatives or the Architect of the Capitol shall be
used unless the expenditure of such funds is audited by the
Comptroller General at such times as he may deem appropriate.
For the purpose of conducting such audits, the provisions of
section 313 of the Budget and Accounting Act (42 Stat. 26; 31
U.S.C. 54) shall be applicable to the legislative agencies
under audit. The Comptroller Gen
[[Page 5994]]
eral shall report to the Speaker of the House of
Representatives the results of each such audit relating to the
financial transactions of the House of Representatives, and
shall report also to the Architect of the Capitol the results
of the audit of his office. All such reports, including the
reports required by the Act of July 26, 1949 (63 Stat. 482),
shall be printed as House Documents.''
Mr. [Thomas J.] Steed [of Oklahoma]: Mr. Chairman, it is with
some reluctance that I must make a point of order against this
amendment. . . .
Mr. Oliver P. Bolton: Mr. Chairman, I wish to express my
appreciation to the chairman of the subcommittee for reserving the
point of order. I knew that a point of order would be made.
Mr. Chairman, the purpose and intent of my amendment is clear.
Simply stated, the funds appropriated by H.R. 10723 would be
subject to the limitations of the Accounting and Auditing Act of
1950, as amended, with a view toward making the operations of the
House and the Office of the Architect of the Capitol subject to the
same objective auditing standards as are other Government
departments. . . .
Mr. Chairman, it is high time we opened our books to the
public. Just like any executive agency, we are spending taxpayers'
money for our daily operating expenses. There is no logical reason
why we should not be subjected to a public audit. Who knows, maybe
a little fat can be trimmed right in our own backyard.
The Chairman: (16) It is obvious on its face that
this amendment is legislation on an appropriation bill. The Chair
sustains the point of order.
---------------------------------------------------------------------------
16. Clark W. Thompson (Tex.).
---------------------------------------------------------------------------
Parliamentarian's Note: On another occasion, an amendment to a
legislative branch appropriation bill denying the obligation or
expenditure of certain funds contained therein unless such funds were
subject to audit by the Comptroller General was ruled out of order as
legislation where it appeared that the amendment was intended by its
proponents to extend and strengthen the authority of the Comptroller
General under law to audit legislative accounts. The amendment in that
instance was ruled out of order when it appeared that it was intended
by its proponents to work a change in the law and to require audits,
rather than simply state a condition precedent for obligation and
expenditure of the funds. A subsequent amendment which denied the use
of funds not subject to audit ``as provided by law'' was offered and
adopted. See 124 Cong. Rec. 17651, 95th Cong. 2d Sess., June 14, 1978
[H.R. 12935].
Prior Approval by Bureau of Budget and Submission to Congress
Sec. 48.3 Language in an appropriation bill providing funds for the
Tennessee Valley Authority, stating that no part of the funds shall
be used ``unless and until'' approved by the Director of the Bureau
of the Budget and sub
[[Page 5995]]
mitted to the Senate and House Committees on Appropriations, was
conceded to be legislation and held not in order.
On May 22, 1956,(17) during consideration in the
Committee of the Whole of a general appropriation bill (H.R. 11319),
the following point of order was raised:
---------------------------------------------------------------------------
17. 102 Cong. Rec. 8725, 84th Cong. 2d Sess.
---------------------------------------------------------------------------
Mr. [Louis C.] Rabaut [of Michigan]: Mr. Chairman, I make a
point of order against certain language in the Tennessee Valley
Authority paragraph as follows: . . .
Third. Lines 13 to 22, the proviso reading: ``That no part of
funds available for expenditure by this agency shall be used,
directly or indirectly, to acquire a building for use as an
administrative office of the Tennessee Valley Authority unless and
until the Director of the Bureau of the Budget, following a study
of the advisability of the proposed acquisition, shall advise the
Committees on Appropriations of the Senate and the House of
Representatives and the Tennessee Valley Authority that the
acquisition has his approval: Provided further.''. . .
Mr. [Clarence] Cannon [of Missouri]: Mr. Chairman, the language
read by the gentleman is unquestionably legislation on an
appropriation bill and I therefore concede the point of order.
The Chairman: (18) . . . The gentleman from
Missouri, chairman of the Committee on Appropriations, concedes the
point of order.
---------------------------------------------------------------------------
18. Jere Cooper (Tenn.).
---------------------------------------------------------------------------
It is clearly legislation on an appropriation bill and the
point of order is sustained.
Prior Approval by Public Housing Commissioner
Sec. 48.4 Language in a supplemental appropriation bill providing funds
for the Housing and Home Finance Agency and containing a proviso
that no funds appropriated therein or funds available for
expenditure pursuant to section 10 of the Housing Act shall be
available for certain expenditures unless made in accordance with a
budget approved by the Public Housing Commissioner was conceded to
be legislation and held not in order.
On June 23, 1960,(19) during consideration in the
Committee of the Whole of a supplemental appropriation bill (H.R.
12740), a point of order was raised against the following provision:
---------------------------------------------------------------------------
19. 106 Cong. Rec. 14086, 86th Cong. 2d Sess.
---------------------------------------------------------------------------
Housing and Home Finance Agency
Public Housing Administration
Annual Contributions
For an additional amount, fiscal year 1960, for ``Annual
contributions'', $9
[[Page 5996]]
million, and in addition $3 million to be derived from funds
collected as fixed fees from local public housing authorities as
required by law: Provided, That no funds appropriated herein, or
funds available for expenditure pursuant to section 10 of the
United States Housing Act of 1937, as amended, shall be available
for the payment of contributions with respect to any local public
agency expenditures for any project year ending after June 30,
1960, which are not made in accordance with a budget approved by
the Public Housing Commissioner as reasonable, necessary, and
consistent with economical operating policies.
Mr. [Thomas L.] Ashley [of Ohio]: Mr. Chairman, a point of
order.
The Chairman: (20) The gentleman will state it.
---------------------------------------------------------------------------
20. Aime J. Forand (R.I.).
---------------------------------------------------------------------------
Mr. Ashley: Mr. Chairman, I make the point of order that the
language contained on page 8, lines 7 through 15, is legislation on
an appropriation bill.
The Chairman: Does the gentleman from Texas desire to be heard
on the point of order?
Mr. [Albert] Thomas [of Texas]: We concede the point of order,
Mr. Chairman.
The Chairman: The Chair sustains the point of order.
Requiring State and Local Cost Sharing for Investigations
Sec. 48.5 Language in the Interior Department appropriation bill under
the heading ``General Investigations'' providing that ``the
expenditure of any sums from this appropriation for investigations
of any nature requested by States, municipalities, or other
interests shall be upon the basis of the State, municipality, or
other interest advancing at least 50 percent of the estimated cost
of such investigations'' was conceded to be legislation on an
appropriation bill and held not in order.
On Apr. 25, 1947,(1) during consideration in the
Committee of the Whole of the Interior Department appropriation
bill (H.R. 3123), a point of order was raised against the following
provision:
---------------------------------------------------------------------------
1. 93 Cong. Rec. 4079, 80th Cong. 1st Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
General Investigations
General investigations: For engineering and economic
investigations of proposed Federal reclamation projects and
surveys, investigations, and other activities relating to
reconstruction, rehabilitation, extensions, or financial
adjustments of existing projects, and studies of water
conservation and development plans, such investigations,
surveys, and studies to be carried on by said Bureau either
independently, or in cooperation with State agencies and other
Federal agencies, including the Corps of Engineers, and the
Federal Power Commission, $125,000, which may be used to
execute detailed surveys, and to prepare construction plans and
specifications: Provided,
[[Page 5997]]
That the expenditure of any sums from this appropriation for
investigations of any nature requested by States,
municipalities, or other interests shall be upon the basis of
the State, municipality, or other interest advancing at least
50 percent of the estimated cost of such investigations. . . .
Mr. [J. Edgar] Chenoweth [of Colorado]: Mr. Chairman, a point
of order.
The Chairman: (2) The gentleman will state it.
---------------------------------------------------------------------------
2. Earl C. Michener (Mich.).
---------------------------------------------------------------------------
Mr. Chenoweth: Mr. Chairman, I make a point of order against
the language contained in line 13 beginning with the word
``Provided'' down through line 18 to the colon, page 34, for the
reason it is legislation on an appropriation bill.
The Chairman: Does the gentleman from Ohio [Mr. Jones] desire
to be heard on the point of order? The point of order is that this
is legislation on an appropriation bill, not authorized by law.
Mr. [Robert F.] Jones of Ohio: Mr. Chairman, I concede the
point of order.
The Chairman: The point of order is conceded. The Chair
therefore sustains the point of order.
Requiring Cost Sharing for Cooperative Range Improvements
Sec. 48.6 Language in an appropriation bill providing that no part of
the appropriation for ``Cooperative Range Improvements'' shall be
expended in any national forest until contributions at least equal
to such expenditures are made available by States or other local
public or private sources, was held to be legislation on an
appropriation bill and not in order.
On May 10, 1951,(3) during consideration in the
Committee of the Whole of the Agriculture Department appropriation bill
(H.R. 3973), the following point of order was raised:
---------------------------------------------------------------------------
3. 97 Cong. Rec. 5224, 82d Cong. 1st Sess.
---------------------------------------------------------------------------
Mr. [Walter K.] Granger [of Utah]: Mr. Chairman, I make a point
of order against the following language beginning in line 18 on
page 26 and including the proviso in lines 18 to 25 inclusive as
being legislation on an appropriation bill.
Provided, That hereafter no part of the appropriation for
``Cooperative Range Improvements'' shall be expended in any
national forest until funds or other contributions at least
equal to such expenditures are made available by States or
other local public or private sources, except that claims
recognized by the act of December 19, 1950, shall be accepted
as contributions for the purposes of this section.
Mr. [Jamie L.] Whitten [of Mississippi]: A point of order, Mr.
Chairman.
The Chairman: (4) The gentleman will state it.
---------------------------------------------------------------------------
4. Aime J. Forand (R.I.).
---------------------------------------------------------------------------
Mr. Whitten: In view of the fact that a point of order has been
made to
[[Page 5998]]
the last half of the paragraph I make a point of order against the
entire paragraph. I do not think it can be argued that it is not
subject to a point of order. A point of order having been made to
half of the paragraph, I make a point of order against the entire
paragraph.
The Chairman: Does any Member desire to be heard on the point
of order?
The Chair sustains the point of order to the entire paragraph.
Providing Cost Sharing for Road Construction
Sec. 48.7 Language in an appropriation bill providing that funds for
the construction of an additional Washington airport in Virginia
shall be available for an access road (a federal project) provided
the State of Virginia makes available the balance of funds
necessary for the construction of the road was conceded to be
legislation and held not in order.
On June 29, 1959,(5) during consideration in the
Committee of the Whole of a supplemental appropriation bill (H.R.
7978), a point of order was raised against the following provision:
---------------------------------------------------------------------------
5. 105 Cong. Rec. 12121, 86th Cong. 1st Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
Federal Aviation Agency
Construction and development, additional Washington airport
For an additional amount for ``Construction and
development, additional Washington airport'', $22,470,000, to
remain available until expended, of which not to exceed
$400,000 shall be available for an access road to the north
from the airport provided the State of Virginia makes available
the balance of funds necessary for the construction of said
road.
Mr. [H. R.] Gross [of Iowa]: Mr. Chairman, I make a point of
order against the language of the bill on page 3, line 6, beginning
with the words ``of which'' and running through line 10, on the
ground that this language is legislation on an appropriation bill.
The Chairman: (6) Does the gentleman from Texas [Mr.
Thomas] desire to be heard on the point of order?
---------------------------------------------------------------------------
6. Paul J. Kilday (Tex.).
---------------------------------------------------------------------------
Mr. [Albert] Thomas: Mr. Chairman, I am compelled to concede
the point of order.
The Chairman: The gentleman from Texas concedes the point of
order. The Chair sustains the point of order.
Delaying Obligation Until Other Funds Have Been Spent
Sec. 48.8 To a general appropriation bill providing funds for the rent-
supplement program, an amendment to withhold obligation of those
funds until funds previously
[[Page 5999]]
appropriated (in another bill) for military housing construction
are obligated, which placed an unrelated contingency on the use of
funds in the bill, was ruled out as legislation.
On Mar. 29, 1966,(7) during consideration in the
Committee of the Whole of a supplemental appropriation bill (H.R.
14012), a point of order was raised against the following provision:
---------------------------------------------------------------------------
7. 112 Cong. Rec. 7118, 89th Cong. 2d Sess.
---------------------------------------------------------------------------
Amendment offered by Mr. [Elford A.] Cederberg [of Michigan]:
On page 4, line 22, after ``program'' and before the period add,
``Provided further, That no part of these funds shall be obligated
until funds made available for the construction of family housing
for the Army, Navy, Marine Corps, Air Force, and Defense agencies
in Public Law 89-202, have been obligated.''
Mr. [Joseph L.] Evins of Tennessee: Mr. Chairman, I make a
point of order.
Mr. [Melvin R.] Laird [of Wisconsin]: Mr. Chairman, the point
of order comes too late. The Chair was about to state the question.
The Chairman [James G. O'Hara, of Michigan]: The question had
not yet been put. The Chair was about to state the question, but
the question had not yet been put. The gentleman will state his
point of order.
Mr. Evins of Tennessee: Mr. Chairman, I make a point of order
against the amendment on the ground that it relates to funds
previously appropriated and which are not carried in this bill and
interferes with executive discretion given to the President under
existing law to do what he wishes with the funds.
The Chairman: The Chair is prepared to rule.
Mr. Cederberg: Mr. Chairman, I would like to be heard on this
point.
The Chairman: The Chair will hear the gentleman from Michigan
briefly on the point of order.
Mr. Cederberg: Mr. Chairman, this is an attempt to try to be
sure that our military families are given an equal opportunity to
have family housing that has been deferred. This matter has
adequately been discussed in the debate previous to this time. I
had hoped possibly out of the generousness of the hearts of the
gentlemen on the Democratic side that they would not raise a point
of order and therefore obviously deny our military service families
the right to have these houses that they so desperately need.
The Chairman: The Chair is prepared to rule on the point of
order.
The amendment offered by the gentleman from Michigan places an
unrelated contingency upon the use of funds provided in this
paragraph, and as such is legislation in an appropriation bill, and
not germane to the paragraph.
The point of order is sustained.
Parliamentarian's Note: Provisions that seek to control the timing
of expenditure of funds may sometimes be ruled out as legislation,
inasmuch as such provisions may interfere with executive discretion as
to such expenditure.
[[Page 6000]]
See the proceedings at 126 Cong. Rec. 16815-17, 96th Cong. 2d Sess.,
June 25, 1980; for discussion of provisions affecting executive
discretion generally, see Sec. 51, infra. More precisely, it may be
stated that, if a proposed limitation on the use of funds goes beyond
the traditionally permissible objects of a limitation, as, for example,
by restricting discretion in the timing of expenditure of funds rather
than restricting their use for a specific object or purpose, such
provision may be ruled out as legislation in the absence of a
convincing argument by the proponent showing that the provision does
not change existing law.
In some instances, a provision of the type described above may be
allowed, even though legislative in effect, if it can be viewed as
falling within the Holman rule exception. See Sec. 4, supra, for
general discussion of the Holman rule. As long as an amendment calls
for an obvious reduction at some point in time during the fiscal year,
the amendment is in order under the ``Holman Rule'' even if the
reduction takes place in the future in an amount actually determined
when the reduction takes place (for example, by formula). See, for
example, 126 Cong. Rec. 20499-503, 96th Cong. 2d Sess., July 30, 1980.
It should be noted here that on one occasion, in 1965, 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 1965 ruling would
probably not be followed in current practice; that ruling is discussed
further, with related precedents, in the ``note on contrary rulings''
following Sec. 53.6, infra.
Funds Available to Extent Aggregate Expenditures Do Not Exceed
Specified Amount
Sec. 48.9 On a general appropriation bill a limitation applying to
funds other than those provided in the pending bill is not in
order. But rulings differ in the application of this principle to
provisions making funds available ``only to the extent that
expenditure thereof shall not raise total aggregate expenditures
of'' agencies provided for in the bill.
[[Page 6001]]
On Mar. 3, 1952,(8) during consideration in the
Committee of the Whole of the Treasury and Post Office Departments
appropriation bill (H.R. 6854), the Chair ruled out of order an
amendment as described above, on the basis that the proposed limitation
would affect appropriations not carried in the bill. A point of order
was raised against the following amendment:
---------------------------------------------------------------------------
8. 98 Cong. Rec. 1781, 1782, 82d Cong. 2d Sess. See also Sec. 27,
supra, discussing provisions that affect funds in other acts,
generally.
---------------------------------------------------------------------------
The Clerk read as follows:
Amendment offered by Mr. [Frederic R.] Coudert [Jr., of New
York]: Page 15, line 11 insert a new section 403:
``Sec. 403. Money appropriated in this act shall be
available for expenditure in the fiscal year ending June 30,
1953, only to the extent that expenditure thereof shall not
raise total aggregate expenditures of all agencies provided for
herein beyond the total sum of $7,060,000,000: Provided
further, That this limitation shall not apply to expenditures
from the postal revenues; to refunds of internal revenue
collections, to refunds and draw-backs in the Customs Service,
and to refunds of moneys erroneously received and covered.''
Mr. [J. Vaughan] Gary [of Virginia]: Mr. Chairman, I reserve a
point of order against the amendment. . . .
Mr. Chairman, I insist on my point of order on the ground that
this amendment goes beyond the scope of this bill and deals with
expenditures which are not included in this bill.
Mr. [John] Taber [of New York]: Mr. Chairman, may I be heard on
the point of order?
The Chairman: (9) The gentleman from New York is
recognized.
---------------------------------------------------------------------------
9. Charles M. Price (Ill.).
---------------------------------------------------------------------------
Mr. Taber: Mr. Chairman, the amendment does not go beyond the
scope of the bill in its limitation on expenditures. The limitation
is that the total expended including the amounts in this bill shall
not exceed the $7,060,000,000 over and above the total expenditures
for the postal revenues, the refunds on internal revenue
collection, and the refunds and drawbacks in the customs service,
and the refunds of money erroneously received. . . .
The Chairman: The Chair is ready to rule. In the brief time the
Chair has had to study the amendment, the Chair is of the opinion
that the limitation which the gentleman from New York desires to
place in the bill would operate to limit expenditures of
appropriations which are not carried in the bill, and therefore
sustains the point of order.
A seemingly different result was reached on Mar. 21,
1952,(10) on which day the Committee of the Whole was
considering H.R. 7072, an independent offices appropria
[[Page 6002]]
tion. The Clerk read as follows, and proceedings ensued as indicated
below:
---------------------------------------------------------------------------
10. 98 Cong. Rec. 2694, 82d Cong. 2d Sess. See also the ruling at 99
Cong. Rec. 9559, 83d Cong. 1st Sess., July 22, 1953, on a
similarly worded amendment to H.R. 6391, the Mutual Security
Administration appropriation bill, discussed at Sec. 80.2,
infra. And see Sec. Sec. 80.3 et seq., infra.
---------------------------------------------------------------------------
Amendment offered by Mr. Coudert: On page 64, after line 21,
add a new section 405 as follows:
``Sec. 405. Money appropriated in this act shall be available
for expenditure in the fiscal year ending June 30, 1953, only to
the extent that expenditure thereof shall not result in total
aggregate expenditures of all agencies provided for herein beyond
the total sum of $6,900,000,000.''
Mr. [Albert] Thomas [of Texas]: Mr. Chairman, I make the point
of order against the amendment on the ground that it is legislation
on an appropriation bill. . . .
. . . It changes figures heretofore voted upon in the House in
the last 3 days. Therefore, that is legislation. It puts duties on
the various agencies not otherwise called for in the bill. . . .
Mr. Coudert: This clearly does not touch the funds of prior
years; therefore, it does not appropriate with respect to them. It
only places a limitation upon the use to which the funds requested
in this bill, the new obligational authority, may be put. It limits
the freedom of expenditure and nothing else.
The Chairman: (11) The Chair is ready to rule. . . .
---------------------------------------------------------------------------
11. Wilbur D. Mills (Ark.).
---------------------------------------------------------------------------
The Chair appreciates the fact that the author of the amendment
afforded the Chair an opportunity earlier in the day to read the
amendment and gave the Chair some time to study the language of the
amendment.
The Chair is of the opinion that the amendment is a limitation
upon the funds which are contained in the bill H.R. 7072, presently
before the Committee; that it is nothing more than a limitation on
those funds. The Chair is, therefore, constrained to overrule the
point of order and holds the amendment in order.
Parliamentarian's Note: The Mar. 3, 1952, ruling cited above seems
to support the better principle, that, where an attempted limitation
has the effect of delaying the expenditure of funds until
determinations are made as to aggregate expenditures at the end of a
fiscal year, it is not in order. However, if the reduction is certain,
such an amendment can be supported under the Holman rule. See the note
in Sec. 48.8, supra. And see Sec. Sec. 4 and 5, supra, for general
discussion of the Holman rule.
Ceiling by Reference to President's Budget
Sec. 48.10 An amendment to a general appropriation bill restricting the
availability for expenditure of all funds therein to the aggregate
level provided in the President's budget for that fiscal year for
the agencies covered in the bill was held to constitute a valid
limitation on the total amount covered by the bill.
[[Page 6003]]
On June 15, 1972,(12) during consideration in the
Committee of the Whole of the Departments of Labor and Health,
Education, and Welfare appropriation bill for fiscal 1973 (H.R. 15417),
a point of order was raised against the following amendment:
---------------------------------------------------------------------------
12. 118 Cong. Rec. 21136, 21137, 92d Cong. 2d Sess.
---------------------------------------------------------------------------
Mr. [Paul] Findley [of Illinois]: Mr. Chairman, I offer an
amendment.
The Clerk read as follows:
Amendment offered by Mr. Findley: On page 40, after line 4,
insert the following new section:
``Sec. 409. Money appropriated in this Act shall be
available for expenditure in the fiscal year ending June 30,
1973, only to the extent that expenditure thereof shall not
result in total aggregate net expenditures of all agencies
provided for herein beyond 100 per centum of the total
aggregate net expenditures estimated therefor in the budget for
1973 (H. Doc. 215).''
Mr. [Daniel J.] Flood [of Pennsylvania]: Mr. Chairman, I make a
point of order against the amendment.
Mr. Chairman, this is legislation upon an appropriation bill--
period.
The Chairman: (13) Does the gentleman from Illinois
desire to be heard on the point of order?
---------------------------------------------------------------------------
13. Chet Holifield (Calif.).
---------------------------------------------------------------------------
Mr. Findley: Yes, Mr. Chairman.
Mr. Chairman, I would like to explain to the Chair that the
language of this amendment with the exception of the percentage
figure and the House document reference is identical to the so-
called Bow amendment which was offered on many occasions in past
years and which has been challenged on previous occasions and which
has been sustained being in order of an appropriation bill.
The Chairman: The Chair has examined the amendment and will
rule that it is in order. It is, in effect, the ``Bow'' amendment
with a very slight variation. It is a restriction on the
appropriations in this bill.
The point of order is overruled.
Parliamentarian's Note: This precedent and the Mar. 21, 1952,
ruling cited in Sec. 48.9, supra, are subject to the same criticism.
Arguably, implementation of this amendment would require withholding of
all obligations until the end of the year, since an agency's budget
situation might not be subject to a final tabulation until all other
funds--those in the pipeline as well as those funded in other
appropriation acts--are taken into account. There is no disclosure on
the face of the amendment that there is a certain reduction to qualify
under the Holman rule exception.
Pending Balanced Budget
Sec. 48.11 To a bill making appropriations for foreign aid, an
amendment specifying that no funds made available therein may be
expended until total governmental tax receipts exceed total expend
[[Page 6004]]
itures was ruled out as legislation.
On July 1, 1964,(14) during consideration in the
Committee of the Whole of the foreign aid appropriation bill (H.R.
11812), a point of order was raised against the following amendment:
---------------------------------------------------------------------------
14. 110 Cong. Rec. 15582, 88th Cong. 2d Sess. See also Sec. 49.1,
infra, in which the Chair ruled out of order an amendment
making the availability of funds conditional on a congressional
finding that expenditures would not increase the public debt.
---------------------------------------------------------------------------
Mr. [Edgar F.] Foreman [of New Mexico]: Mr. Chairman, I offer
an amendment.
The Clerk read as follows:
Amendment offered by Mr. Foreman: On page 18, immediately
after line 24, insert the following:
``Sec. 404. Limitation on Appropriations for Economic
Assistance.--Notwithstanding any provision of this or any other
Act, no provision of this Act appropriating funds to carry out
any program of assistance under this Act (other than a
provision for military assistance as described in this Act and
in the amount of $1,055,000,000) shall become effective until
the tax receipts of the United States Government for the
preceding fiscal year are equal to or greater than the
expenditures of the Government for such fiscal year.''
Mr. [J. Vaughan] Gary [of Virginia]: Mr. Chairman, I make a
point of order against the bill on the ground that it is
legislation on an appropriation bill. . . .
Mr. Foreman: Mr. Chairman, I feel like any time we are
appropriating the taxpayers' dollars, we certainly should take into
consideration the question as to whether or not we are putting the
people further in debt. This is a very important question. It is a
legal question, a legislative question, and even more importantly,
a moral question.
Mr. Chairman, my amendment goes to the question of spending or
not spending of these funds, the limiting of making funds
available.
It does not legislate as to how they are going to be spent, or
not be spent, the bill itself does not even do that.
But as suggested earlier in our debate, perhaps this amendment
is indeed too sensible and entirely too practical to be applied to
our foreign aid giveaway program. Yes, Mr. Chairman, perhaps fiscal
responsibility, at this point and in this day in time, may be out
of order.
The Chairman: (15) The Chair is ready to rule.
---------------------------------------------------------------------------
15. Charles M. Price (Ill.).
---------------------------------------------------------------------------
On the face of it, this amendment appears to go far beyond the
scope of the bill.
The subject of the amendment is not covered or referred to in
the proposed legislation and, therefore, the Chair sustains the
point of order.
CHAPTER 26
Unauthorized Appropriations; Legislation on Appropriation Bills
D. PROVISIONS AS CHANGING EXISTING LAW: APPROPRIATIONS SUBJECT TO
CONDITIONS
Sec. 49. Spending Conditioned on Congressional Approval
Subsequent Congressional Finding of Impact on Public Debt
Sec. 49.1 To a bill appropriating funds for the Mutual Secu
[[Page 6005]]
rity Act program, an amendment providing that none of the funds
therein should be available for expenditure until Congress, in a
concurrent resolution, makes a finding that the expenditure will
not increase the public debt, was held to be legislation.
On July 28, 1959,(16) during consideration in the
Committee of the Whole of the mutual security appropriation bill (H.R.
8385), a point of order was raised against the following amendment:
---------------------------------------------------------------------------
16. 105 Cong. Rec. 14520, 14521, 86th Cong. 1st Sess.
---------------------------------------------------------------------------
Mr. [John James] Flynt [Jr., of Georgia]: Mr. Chairman, I offer
an amendment.
The Clerk read as follows:
Amendment offered by Mr. Flynt: On page 5, after line 21,
insert the following:
``Sec. 101. None of the funds appropriated by this title
shall be available for expenditure until the Congress has
adopted a concurrent resolution (1) which states in substance
that the Congress finds that the aggregate of the estimated net
budget receipts of the Government of the United States for the
fiscal year 1960 will exceed the aggregate of the estimated
expenditures for that fiscal year which will be made by the
Government of the United States for purposes other than those
contained in the Mutual Security Act of 1954, as amended, and
(2) which specifies the amount of such excess. Upon the
adoption of such a concurrent resolution, then each item of
appropriation contained in this title is automatically reduced
to an amount which bears the same ratio to such item as the
excess specified in such concurrent resolution bears to
$3,186,500,000.''
Mr. [Otto E.] Passman [of Louisiana]: Mr. Chairman, I reserve a
point of order against the amendment on the ground that it is
legislation on an appropriation bill. . . .
[After remarks by Mr. Flynt, the point of order was made by Mr.
Passman.]
The Chairman: (17) The Chair is prepared to rule.
---------------------------------------------------------------------------
17. Wilbur D. Mills (Ark.).
---------------------------------------------------------------------------
The gentleman from Georgia [Mr. Flynt] has offered an amendment
to which the gentleman from Louisiana makes a point of order.
The Chair has had an opportunity to examine the amendment
offered by the gentleman from Georgia and is of the opinion that
the amendment itself is beyond the usual limitation on an
appropriation bill, in that the amendment would place additional
responsibility and duties on the Congress and require additional
action by the Congress, which constitutes
legislation.(18)
---------------------------------------------------------------------------
18. The ruling above, insofar as it requires future express
congressional action, is in conformity with the more recent
trend in the Chair's treatment of provisions such as that at
issue here. There have been rulings that have permitted
appropriations related to public debt levels without explicitly
requiring congressional action. See the ruling at 101 Cong.
Rec. 10246, 84th Cong. 1st Sess., July 11, 1955, wherein an
amendment denying funds if the effect of spending is to
increase public debt was held in order as a limitation. And see
105 Cong. Rec. 14521, 14522, 86th Cong. 1st Sess., July 28,
1959, where the Chair ruled that, to a bill appropriating funds
for the mutual security program, an amendment providing that no
part of any appropriation in the bill shall be used in the
event the expenditure will increase the public debt was held to
be a limitation and in order. See, generally, Sec. Sec. 48.9 et
seq., supra, for discussion of provisions that seek to make
expenditures conditional upon a determination that aggregate
spending levels are not in excess of a certain amount.
---------------------------------------------------------------------------
[[Page 6006]]
By Concurrent Resolution
Sec. 49.2 An amendment offered in the form of a limitation on an
appropriation bill providing that no part of the funds shall be
used for the enforcement of any order restricting sale of any
article or commodity, unless such order shall have been approved by
a concurrent resolution of the Congress, was held to be legislation
and not in order on an appropriation bill.
On June 30, 1942,(19) during consideration in the
Committee of the Whole of a supplemental appropriation bill (H.R.
7319), a point of order was raised against the following amendment:
---------------------------------------------------------------------------
19. 88 Cong. Rec. 5826, 77th Cong. 2d Sess.
---------------------------------------------------------------------------
Mr. [W. Sterling] Cole of New York: Mr. Chairman, I offer the
following amendment, which I send to the desk.
The Clerk read as follows:
Amendment offered by Mr. Cole of New York: Page 23, line 2,
after ``appropriation'', strike out the period and insert
semicolon, and add the following: ``: Provided further, That on
and after 60 days after enactment of this act, no part of the
funds herein appropriated shall be used for the administration
or enforcement of any order prohibiting, restricting,
rationing, or limiting by way of amount or number, the sale in
retail trade of any article or commodity unless such order
shall have been approved by a concurrent resolution of the
Congress.''
Mr. [Clifton A.] Woodrum of Virginia: Mr. Chairman, I make the
point of order that that is legislation on an appropriation bill.
This changes the basic principles of the Price Control Act. Under
that act we set up a certain policy, and gave discretion to an
agency, and this seeks definitely to change the basic act.
The Chairman: (20) Does the gentleman from New York
desire to be heard on the point of order?
---------------------------------------------------------------------------
20. Jere Cooper (Tenn.).
---------------------------------------------------------------------------
Mr. Cole of New York: Mr. Chairman, I submit that this is
definitely a limitation on the use of funds contained in this
appropriation bill.
The Chairman: The Chair is prepared to rule. The gentleman from
New York offers an amendment which has been reported by the Clerk.
The
[[Page 6007]]
gentleman from Virginia [Mr. Woodrum] makes the point of order
against the amendment on the ground that it is legislation on an
appropriation bill and goes further than a limitation. The Chair
has endeavored to analyze the amendment, and is of opinion that the
gentleman from Virginia has correctly stated the situation. The
amendment appears to go much further than a mere limitation and
provides that the existing law be in effect amended, and imposes
certain requirements as to further legislation. The Chair,
therefore, sustains the point of order.
Parliamentarian's Note: It has been held in order, by way of a
limitation on an appropriation bill, to make an appropriation
contingent upon a future event, such as congressional action, so long
as the contingency is germane to the appropriation and the restriction
does not change existing law. But such a provision does change existing
law if its effect is to require a subsequent authorization which, when
enacted, will automatically make funds available for expenditure
without further appropriations. Such a result is contrary to the
process contemplated in Rule XXI whereby appropriations are dependent
on prior authorization. While two recent rulings have upheld the
admissibility of amendments making the availability of funds in a
general appropriation bill contingent upon subsequent congressional
action, where the contingency is germane and is not shown to change
existing law (114 Cong. Rec. 16692, 90th Cong. 2d Sess., June 11, 1968
[H.R. 17734]; 125 Cong. Rec. 23360, 23361, 96th Cong. 1st Sess., Sept.
6, 1979 [H.R. 4473]), the Chair in the latter ruling indicated he was
following the earlier precedent only because there had been no argument
advanced that the contingency changed existing law. In the ruling on
June 11, 1968, it was held that, to a bill making supplemental
appropriations for various government departments, including the
Department of Defense, an amendment providing that no part of the
appropriations therein shall be available, without the express
authorization of Congress, for maintenance of more than 525,000 troops
in Vietnam or for an invasion of North Vietnam was in order as a
limitation. More recent rulings indicate that such an amendment would
probably be ruled out in the current practice. On Nov. 18,
1981,(1) a provision making the availability of certain
funds contingent upon subsequent congressional action on legislative
proposals resolving the policy issue was held to constitute legis
[[Page 6008]]
lation. More recently,(2) an amendment to a general
appropriation bill making the availability of funds therein contingent
upon subsequent congressional enactment of legislation containing
specified findings was ruled out as legislation requiring new
legislative and executive branch policy determinations not required by
law. And, in an earlier precedent not cited on Sept. 6, 1979, the Chair
did rule (88 Cong. Rec. 5826, 77th Cong. 2d Sess., June 30, 1942 [H.R.
7319]) that an amendment prohibiting the availability of funds to
enforce certain executive orders, unless those orders were approved by
a concurrent resolution of the Congress, could be viewed as
legislation, imposing new requirements as to further legislative
action. In any case, when a point of order is raised, the burden is on
the proponent of the amendment to show that the contingency on which
the availability of funds depends is one authorized by existing law.
---------------------------------------------------------------------------
1. 127 Cong. Rec. 28064, 97th Cong. 1st Sess.
2. 129 Cong. Rec. ----, 98th Cong. 1st Sess., Nov. 2, 1983.
---------------------------------------------------------------------------
Some statutes expressly provide that there may be appropriated to
carry out the functions of certain agencies only such sums as Congress
may thereafter authorize by law, thus requiring specific subsequently
enacted authorizations for the operations of such agencies and not
permitting appropriations to be authorized by the ``organic statute''
creating the agency. (See, for example, 15 USC Sec. 57c). In the
situation where a paragraph of a general appropriation bill is under
consideration which contains an unauthorized appropriation, a
perfecting amendment delaying availability of the unauthorized
appropriation and making it contingent upon enactment of authorizing
legislation may be germane (since existing law already links the
authorization and appropriations processes and the contingency is
therefore not unrelated), and may not add legislation, since it merely
recites conditions already imposed by existing law and does not
explicitly make the availability of appropriations contingent upon
enactment of new policies.
Subsequent Approval of Congress
Sec. 49.3 To a section of an appropriation bill providing an
appropriation for the federal aid airport program, an amendment
providing that the appropriation ``does not grant authority to the
Administrator of Civil Aeronautics to undertake [during a specified
period] any specific projects for the develop
[[Page 6009]]
ment of . . . airports, unless express approval of Congress is
hereafter granted,'' was held to be legislation not in the form of
a limitation on the use of funds and not in order.
On May 15, 1947,(3) during consideration in the
Committee of the Whole of a general appropriation bill (H.R. 3311), a
point of order was raised against the following amendment:
---------------------------------------------------------------------------
3. 93 Cong. Rec. 5378, 80th Cong. 1st Sess.
---------------------------------------------------------------------------
Amendment offered by Mr. [Kenneth B.] Keating [of New York]: On
page 49, line 2, after ``appropriation'', insert the following:
``Provided further, That the appropriation made herein does not
grant the authority to the Administrator of Civil Aeronautics to
undertake during the fiscal year beginning July 1, 1947, any
specific projects for the development of class 4 and larger
airports, unless express approval of Congress is hereafter
granted.''
Mr. [Oren] Harris [of Arkansas]: Mr. Chairman, I make the point
of order against the amendment that it is legislation on an
appropriation bill.
The Chairman: (4) Does the gentleman from New York
desire to be heard on the point of order?
---------------------------------------------------------------------------
4. Carl T. Curtis (Nebr.).
---------------------------------------------------------------------------
Mr. Keating: I do, Mr. Chairman.
Mr. Chairman, it strikes me that this is a limitation upon the
appropriation, which is in order. The law as it is today provides
that the making of an appropriation shall be an approval of certain
specific projects, unless a contrary intent of Congress is
manifested. The purpose of this amendment is to manifest the
contrary intent of Congress.
Mr. Harris: Mr. Chairman, under the Federal Airport Act passed
by the Seventy-ninth Congress and approved on May 13, 1946, the
authority under which this appropriation is being considered today,
it is specifically provided in section 5(d) for the annual
appropriation of projects in the States.
In section 6 it is specifically provided how the fund shall be
apportioned to the various States and it is also provided how the
Administrator shall proceed in making an annual report to the
Congress 60 days prior to the fiscal year under which the
appropriation would be made for class 4 and larger airports.
In section 9(d) it is provided how the approval of these
airport projects may be made.
I should like to read wherein that authorization provides:
``that all such projects''--meaning class 4 and larger airports--
``shall be subject to the approval of the Administrator, which
approval shall be given only if at the time of the approval funds
are available for payment of the United States share of the
allowable cost and only if he is satisfied that the project will
contribute to the accomplishment of the purposes of the act,'' and
so forth.
Under the authorization of this act the Administrator is given
certain authority, and if I understand the amendment offered by the
gentleman it will change the specific authorization as provided in
those sections just referred to.
[[Page 6010]]
The Chairman: What is the basis of the point of order made by
the gentleman from Arkansas?
Mr. Harris: It is legislation on an appropriation bill. It
changes the authorization of the Airport Act of May 13, 1946.
The Chairman: Does the gentleman from New York wish to be heard
further on the point of order?
Mr. Keating: I do, Mr. Chairman.
Mr. Chairman, the gentleman has failed to read section 8 of the
act which provides for the filing with the Congress 2 months in
advance of the beginning of the fiscal year of the list of
projects. Then, in the last sentence thereof, it says:
In granting any funds that thereafter may be appropriated
to pay the United States' share of allowable project cost
during the next fiscal year, the Administrator may consider
such appropriation as granting the authority requested by law
unless a contrary intent shall have been manifested by the
Congress by law.
This is the only time that the Congress can manifest its
intent, and if it passes this appropriation bill simply
appropriating the money and does not manifest the intent that is
there stated then they have approved of the action of the
Administrator.
The Chairman: For what purpose does the gentleman from South
Dakota rise?
Mr. [Francis H.] Case of South Dakota: To make a brief
observation, if the Chairman will indulge me.
Mr. Chairman, I have briefly examined the text of the amendment
offered by the gentleman from New York (Mr. Keating). While the
language submitted is not in the form of the customary limitation
on funds, it occurs to me that it is the equivalent of saying that
no part of the funds appropriated in this act shall be used for the
construction of class 4 airports. If it were stated in that way it
would clearly be a limitation.
The Chairman: The Chair is ready to rule.
The Chair is of the opinion that this is not merely a
limitation but that it is legislation on an appropriation bill. The
point of order is sustained.
Sec. 49.4 To a section of an appropriation bill providing an
appropriation for the federal-aid airport program, an amendment
providing that ``no part of the appropriation . . . shall be used
for the development of class 4 and larger airports unless approval
of Congress is hereafter granted'' was held to be a limitation on
an appropriation bill restricting the availability of funds and in
order where the Chair apparently took the view that existing law
permitted inclusion of language making the appropriation contingent
upon subsequent congressional approval.
On May 15, 1947,(5) the Committee of the Whole was
consid
[[Page 6011]]
ering H.R. 3311, a Departments of State, Justice, Commerce, and the
Judiciary appropriation bill. The Clerk read as follows:
---------------------------------------------------------------------------
5. 93 Cong. Rec. 5379, 80th Cong. 1st Sess.
---------------------------------------------------------------------------
Amendment offered by Mr. [Kenneth B.] Keating (of New York): On
page 49, line 2, after the word ``appropriation'', insert the
following: Provided further, That no part of the appropriation made
herein shall be used for the development of class 4 and larger
airports unless approval of Congress is hereafter granted.'' . . .
Mr. [J. Percy] Priest [of Tennessee]: Mr. Chairman, I make a
point of order against this amendment as being legislation on an
appropriation bill. . . .
. . . It seems to me that the argument with reference to the
other point of order would apply here. The Administrator, on
February 19, 1947, has complied with the requirement of law and has
made the required report to Congress.
In reading section 8 of the act, the distinguished gentleman
from New York [Mr. Keating], in commenting on the point of order
made against the other amendment, it seems to me did not properly
interpret the last part of section 8 of the act, and that the
amendment actually would change the law by action on an
appropriation bill, when the act specifically says:
In granting any funds that thereafter may be appropriated
to pay the United States' share of allowable project costs
during the next fiscal year, the Administrator may consider
such appropriation as granting the authority requested, unless
a contrary intent shall have been manifested by the Congress by
a law or by concurrent resolution.
This, it would seem to me, would be by amendment to an
appropriation bill rather than by a law or by a concurrent
resolution, and it would appear that the amendment is legislation
on an appropriation bill.
Mr. Keating: Mr. Chairman, as indicated by the gentleman from
South Dakota [Mr. Case], this is clearly simply a limitation upon
the amount of an appropriation, and it seems to me to be clearly in
order.
The Chairman: (6) The Chair is of the opinion that
the amendment is a limitation, and the point of order is overruled.
---------------------------------------------------------------------------
6. Carl T. Curtis (Nebr.)
---------------------------------------------------------------------------
Parliamentarian's Note: The Chair apparently took the view that
existing law [60 Stat. 174, Sec. 8 of which was referred to by Mr.
Priest, above] permitted inclusion of the language making the
appropriation contingent upon subsequent congressional approval. But
the implication of the two precedents above, considered together, is
that where a law can be read to permit contingent restriction or
approval of the use of funds, the appropriation language still must be
phrased as a traditional limitation. A more fundamental question for
future application of these precedents, particularly Sec. 49.4, is
whether the authorizing law in fact permitted the type of restriction
stated in the amendment, or whether the language in the amendment
departed from the
[[Page 6012]]
course authorized by the statute. The law (cited above) stated:
In granting any funds that thereafter may be appropriated to
pay the United States share of allowable project costs during the
next fiscal year, the Administrator may consider such appropriation
as granting the authority requested (to develop class 4 airports)
unless a contrary intent shall have been manifested by the Congress
by law or by concurrent resolution, and no such grants shall be
made unless so authorized.
A proper limitation pursuant to such law would bar the use of funds
in accordance with whatever ``law'' or ``concurrent resolution''
``shall have'' manifested the intent of Congress. The language in the
amendment does something quite different: it bars the use of funds for
the purposes described unless Congress subsequently gives its approval.
Such law as that cited should not be read as generally permitting
appropriations to be made contingent upon future authorization or
congressional approval. The precedent in Sec. 49.4 can be justified
only in the context of the provisions of 60 Stat. 174, and even then
only if the statute can be read as giving flexibility to the process of
congressional approval or disapproval so as to permit Congress to
withhold availability of funds pending future release of the funds upon
adoption of a concurrent resolution.
Prior Approval by Congressional Committees
Sec. 49.5 Language in an appropriation bill providing that ``he
contracts about to be entered into shall have been authorized by
the appropriate legislative committees and in amount by the
Committees on Appropriations of the Senate and House of
Representatives,'' was held to be legislation and not in order.
On Mar. 20, 1957,(7) during consideration in the
Committee of the Whole of a general appropriation bill (H.R. 6070), a
point of order was raised against the following provision:
---------------------------------------------------------------------------
7. 103 Cong. Rec. 4048, 85th Cong. 1st Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
Payments, public buildings purchase contracts: For payments
of principal, interest, taxes, and any other obligations under
contracts entered into pursuant to the Public Buildings
Purchase Contract Act of 1954 (40 U.S.C. 356), $1,331,100:
Provided, That the Administrator of General Services may enter
into contracts during the fiscal year 1958 for which the
aggregate of annual payments for amortization of principal and
interest thereon shall not exceed $9,000,000, in addition to
the unused portion of the $12,000,000 limitation applicable
prior to July 1, 1957,
[[Page 6013]]
under the Independent Offices Appropriation Act, 1957 (70 Stat.
343): Provided further, That the contracts about to be entered
into shall have been authorized by the appropriate legislative
committees and in amount by the Committees on Appropriations of
the Senate and House of Representatives.
Mr. [H. R.] Gross [of Iowa]: Mr. Chairman, I make a point of
order against the language in the bill beginning on page 10, line
21, which reads as follows:
Provided further, That the contracts about to be entered
into shall have been authorized by the appropriate legislative
committees and in amount by the Committees on Appropriations of
the Senate and House of Representatives.
Mr. Chairman, I make the point of order that this is
legislation on an appropriation bill, therefore in violation of the
rules of the House.
Mr. [Albert] Thomas [of Texas]: Mr. Chairman, I make the point
of order against the entire paragraph.
The Chairman: (8) The point of order is well taken.
The Chair sustains the point of order of the gentleman from Texas.
---------------------------------------------------------------------------
8. Frank N. Ikard (Tex.).
---------------------------------------------------------------------------
Sec. 49.6 To an appropriation bill, an amendment providing that no
funds in the bill shall be used to meet any obligation under any
contract for certain material, if the contract exceeds $1 million,
unless the contract is approved by the Committees on Armed Services
of the two Houses, was conceded to be legislation and held not in
order.
On Apr. 9, 1952,(9) during consideration in the
Committee of the Whole of the Defense Department appropriation bill
(H.R. 7391), a point of order was raised against the following
amendment:
---------------------------------------------------------------------------
9. 98 Cong. Rec. 3888, 3889, 82d Cong. 2d Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
Amendment offered by Mr. (Dwight L.) Rogers of Florida:
Page 33, after line 23, insert the following new section:
``Sec. 601. No funds appropriated by this act shall be used
to meet any obligation incurred under any contract for
procurement, maintenance, or production of supplies or
equipment for any of the military departments, if the contract
exceeds $1,000,000 in total amount and is entered into after
the date of enactment of this act, unless, before the contract
is entered into, the Secretary of the military department
concerned or his designee comes into agreement with the
Committees on Armed Services of the Senate and of the House of
Representatives with respect to the terms of the contract.''. .
.
Mr. [Carl] Vinson [of Georgia]: Mr. Chairman, I make the point
of order against the amendment that it is legislation on an
appropriation bill. . . .
The Chairman: (10) Does the gentleman from Florida
(Mr. Rogers) care to be heard on the point of order?
---------------------------------------------------------------------------
10. Aime J. Forand (R.I.)
---------------------------------------------------------------------------
Mr. Rogers of Florida: Mr. Chairman, perhaps there is
phraseology in
[[Page 6014]]
there that would possibly be legislation.
The Chairman: The gentleman concedes the point of order?
Mr. Rogers of Florida: Mr. Chairman, I concede the point of
order.
The Chairman: The point of order is sustained.
Sec. 49.7 In a paragraph in a general appropriation bill containing
funds for the Commission on Government Procurement, a proviso
withholding a portion of those funds until submission of a program
and financial plan by the commission and approval thereof by the
Committees on Appropriations of the House and Senate was conceded
to be legislation and was ruled out on a point of order.
On May 12, 1970,(11) during consideration in the
Committee of the Whole of a general appropriation bill (H.R. 17548), a
point of order was raised against the following provision:
---------------------------------------------------------------------------
11. 116 Cong. Rec. 15174, 91st Cong. 2d Sess.
---------------------------------------------------------------------------
Commission on Government Procurement
salaries and expenses
For necessary expenses of the Commission on Government
Procurement, $1,500,000, to remain available until June 30, 1972:
Provided, That $1,250,000 of the foregoing amount shall not become
available without submission of a program and financial plan by the
Commission and approval thereof by the Committees on Appropriations
of the Senate and House of Representatives. . . .
Mr. [James G.] O'Hara [of Michigan]: Mr. Chairman, I make a
point of order against the proviso beginning on line 19, page 5 and
extending through line 23 on page 5 on the ground that it is
legislation in a general appropriation bill.
The Chairman: (12) Does the gentleman from Tennessee
(Mr. Evins) desire to be heard?
---------------------------------------------------------------------------
12. Frank Annunzio (Ill.).
---------------------------------------------------------------------------
Mr. [Joseph L.] Evins of Tennessee: Mr. Chairman, we recognize
the point that the gentleman has raised.
We only wanted the Commission to advise us as to how they were
to use the funds for this program. We have been assured by the
distinguished chairman, the gentleman from California (Mr.
Holifield) and other members of the Commission, members in whom we
have great confidence, that they will keep the committee and the
Congress informed as they proceed with this new commission.
So, Mr. Chairman, we concede the point of order.
The Chairman: The point of order is conceded.
The Chair sustains the point of order.
Sec. 49.8 Language in an appropriation bill, making the availability of
a portion of
[[Page 6015]]
the funds appropriated therein contingent upon submission of plans
by a commission and approval thereof by the Committees on
Appropriations of both Houses, was ruled out as legislation
imposing additional duties on an executive officer notwithstanding
the fact that the law establishing the commission required it to
submit periodic reports to the President and Congress.
On May 7, 1970,(13) during consideration in the
Committee of the Whole of a supplemental appropriation bill (H.R.
17399), a point of order was raised against the following provision:
---------------------------------------------------------------------------
13.116 Cong. Rec. 14561, 91st Cong. 2d Sess.
---------------------------------------------------------------------------
Commission on Population Growth and the American Future
salaries and expenses
For expenses necessary for the Commission on Population Growth
and the American Future, including services as authorized by 5 U.S.
3109, and hire of passenger motor vehicles, $965,000, to remain
available until expended: Provided, That $700,000 of the foregoing
amount shall not become available without submission of a program
and financial plan by the Commission and approval thereof by the
Committees on Appropriations of the Senate and House of
Representatives. . . .
Mr. [George H.W.] Bush [of Texas]: Mr. Chairman, I make a point
of order against the language contained in lines 8 through 12 on
page 5 of the pending legislation on the ground that it fails to
comply with the provisions of clause 2 rule XXI of the Rules of the
House of Representatives, wherein paragraph 2 states:
Nor shall any provision in any such bill or amendment
thereto changing existing law be in order. . . .
I realize, Mr. Chairman, that substantive legislation can in
practice be added to an appropriation bill if it fits within the
applicable framework of the Holman Rule but does not impose any
additional or affirmative duties. The language--submission of a
program and financial plan by the Commission--does in fact impose
additional duties on the Commission.
The Chairman: (14) Does the gentleman from Texas
wish to be heard on the point of order?
---------------------------------------------------------------------------
14. James G. O'Hara (Mich.).
---------------------------------------------------------------------------
Mr. [George H.] Mahon [of Texas]: Mr. Chairman, the gentleman
from Tennessee (Mr. Evins) will speak to the point of order. . . .
Mr. [Joseph L.] Evins of Tennessee: This is a limitation on
expenditures and we think it is acceptable.
The Chairman: The Chair is ready to rule.
The Chair finds that the language cited on page 5, lines 8
through 12, in the opinion of the Chair constitutes legislation in
an appropriation bill and the point of order is therefore sustained
and the proviso is stricken from the bill.
Parliamentarian's Note: Public Law No. 91-213, Mar. 16, 1970, 84
Stat. 67, relating to the Com
[[Page 6016]]
mission on Population Growth and the American Future, provided (in
section 8):
In order that the President and the Congress may be kept
advised of the progress of its work, the Commission shall, from
time to time, report to the President and the Congress such
significant findings and recommendations as it deems advisable. The
Commission shall submit an interim report to the President and the
Congress one year after it is established and shall submit its
final report two years after the enactment of this Act (Mar. 16,
1970). The Commission shall cease to exist sixty days after the
date of the submission of its final report.
If the language had said, in effect, that no funds would be
expended unless and until the interim report required by law during
this fiscal year is submitted, an argument might have been advanced
that the provision was in order, under the theory that a mere
reiteration of existing law, without change, is not precluded. However,
the requirement of submission of a ``program and financial plan'' was
regarded as an impermissible departure from the existing law, and the
requirement of subsequent committee approval made the provision in the
bill subject to a point of order.
Sec. 49.9 To a general appropriation bill making appropriations for
public works, and including funds for the Panama Canal Corporation,
an amendment prohibiting the corporation from disposing of real
property unless approved by the appropriate legislative committees
of the House and Senate was ruled out as legislation.
On June 16, 1964,(15) during consideration in the
Committee of the Whole of the public works appropriation bill (H.R.
11579), a point of order was raised against the following amendment:
---------------------------------------------------------------------------
15. 110 Cong. Rec. 13973, 88th Cong. 2d Sess.
---------------------------------------------------------------------------
Mrs. [Leonor Kretzer] Sullivan [of Missouri]: Mr. Chairman, I
offer an amendment.
The Clerk read as follows:
Amendment offered by Mrs. Sullivan: Page 9, line 5. After
the word ``use'', change the period to a colon and add:
``Provided, That no real property or rights to the use of
real property, or activity shall be disposed of or transferred
by license, lease, or otherwise except to another agency of the
United States Government unless specifically approved by the
appropriate legislative committees of the House and Senate.''
Mr. [Michael J.] Kirwan [of Ohio]: Mr. Chairman, I make a point
of order against the amendment that it is legislation on an
appropriation bill. . . .
The Chairman: (16) The Chair is prepared to rule.
From the reading of the amendment, the Chair feels that the
[[Page 6017]]
language is purely legislation. It has no bearing upon the
appropriation and falls within the prohibition of legislating on an
appropriation bill.
---------------------------------------------------------------------------
16. Hale Boggs (La.).
---------------------------------------------------------------------------
The point of order is sustained.
Adoption of Joint Resolution in Prescribed Form
Sec. 49.10 An amendment to the Defense Department appropriation
(general) bill denying the use of funds therein for continued
deployment of land-based U.S. Armed Forces participating in the
multinational force in Lebanon after Mar. 1, 1984, unless the
Congress adopts a joint resolution containing certain findings
(requiring the President to define the mission of U.S. forces in
Lebanon and to establish a set of achievable policy goals there as
well as upgrading security arrangements in the area) was ruled out
as legislation in violation of Rule XXI clause 2, requiring new
duties to be imposed on both the Congress (to pass the joint
resolution) and on the President (to make certain findings and to
sign the joint resolution) not presently required by law.
On Nov. 2, 1983,(17) During consideration in the
Committee of the Whole of the Department of Defense appropriation bill
(H.R. 4185), a point of order was sustained against the following
amendment:
---------------------------------------------------------------------------
17. 129 Cong. Rec. ----, 98th Cong. 1st Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
Amendment offered by Mr. [Clarence D.] Long of Maryland:
Page 80, after line 2, insert the following:
Title IX
united states armed forces in lebanon
Sec. 901. None of the funds appropriated by this Act may be
obligated or expended for the continued deployment of land-
based United States Armed Forces participating in the
Multinational Force in Lebanon after March 1, 1984, unless the
Congress of the United States adopts a joint resolution which
contains the following findings:
(a) That the President of the United States has defined a
clear and realistic mission for U.S. forces in Lebanon.
(b) That the President has established a set of policy
goals in Lebanon that are achievable and has a clear agenda for
achieving those goals.
(c) That security arrangements for American forces in the
area have been upgraded to the maximum extent possible. . . .
Mr. [Jack] Edwards of Alabama: Mr. Chairman, I make a point of
order against the gentleman's amendment because it constitutes
legislation in an
[[Page 6018]]
appropriation bill, which is in violation of clause 2, rule XXI.
The gentleman's amendment prohibits the use of funds to support
U.S. Armed Forces in Lebanon after March 1, 1984, unless Congress
adopts a concurrent resolution which contains certain Presidential
findings. Not only is this a contingent event which in itself is
legislation, but substantial additional duties will be required to
have the President submit findings to the Congress regarding
definition of mission establishment of policy goals, and upgrading
of security arrangements in Lebanon. Currently, the President is
not required to submit such findings to the Congress, and this
amendment will institute a new requirement on the President to
submit such findings prior to March 1, 1984, or face a cutoff of
funds. . . .
Mr. [David R.] Obey [of Wisconsin]: Mr. Chairman, I would like,
if I could, to contest the point of order on at least the one
ground raised by the gentleman because the gentleman indicated that
this amendment requires the President to establish a number of
additional findings.
That is not what the amendment does. The amendment says, and I
would repeat, the amendment says that:
None of the funds . . . may be obligated or expended for
the continued deployment of land-based Armed Forces
participating in Lebanon after March 1 unless the Congress of
the United States adopts a joint resolution containing the
following:
So we are not asking an administrative agency of the Government
to establish findings. Those duties would fall on the Congress
itself. . . .
Mr. [Clement J.] Zablocki [of Wisconsin]: . . . I do want to
associate myself with the point of order that was made by the
gentleman from Alabama.
Also, I would add that section 842 of the House Rules and
Manual states that:
An amendment making an appropriation contingent upon a
recommendation or action not specifically required by law is
legislation. . . .
The Chairman Pro Tempore: (18) The Chair is ready to
rule.
---------------------------------------------------------------------------
18. Daniel D. Rostenkowski (Ill.).
---------------------------------------------------------------------------
The amendment clearly requires that additional duties will be
imposed upon the Congress and upon the President since a joint
resolution would have to be signed by the President and there must
be some findings made by the President.
For all of these reasons, the point of order is sustained.
Consideration of Legislative Proposal Regarding Schools for Military
Dependents
Sec. 49.11 A provision in an appropriation bill making the availability
of certain funds contingent upon subsequent congressional action on
legislative proposals was conceded to constitute legislation and
was ruled out on a point of order.
On Nov. 18, 1981,(19) during consideration in the
Committee of
[[Page 6019]]
the Whole of the Department of Defense appropriation bill (H.R. 4995),
a point of order was sustained against the following provision:
---------------------------------------------------------------------------
19. 127 Cong. Rec. 28064, 97th Cong. 1st Sess.
---------------------------------------------------------------------------
The Chairman: (20) The Chair will inquire, are there
any points of order against any portion of the bill?
---------------------------------------------------------------------------
20. Daniel D. Rostenkowski (Ill.).
---------------------------------------------------------------------------
Mr. [David E.] Benior of Michigan: Mr. Chairman, I make a point
of order against section 784 . . . which legislate[s] under an
appropriation bill. . . .
The portion of the bill to which the [point] of order relate[s]
is as follows:
Sec. 784. None of the funds provided in this Act may be
obligated or expended to transfer the Defense Departments'
Schools to the Department of Education, or to fund the
activities of the Advisory Council on Dependents' Education
until legislative proposals to repeal such transfer of the
dependents' schools are considered and acted upon by Congress.
Mr. Joseph P. Addabbo, of New York, conceded and the Chair
sustained the point of order.
CHAPTER 26
Unauthorized Appropriations; Legislation on Appropriation Bills
D. PROVISIONS AS CHANGING EXISTING LAW: APPROPRIATIONS SUBJECT TO
CONDITIONS
Sec. 50. Conditions Imposing Additional Duties
Where a provision in an appropriation bill or amendment thereto
seeks to impose on a federal official substantial duties that are
different from or in addition to those already contemplated in law, the
provision is frequently ruled out as legislative in nature. This
difficult area is discussed more fully in Sec. 51 through 63, infra.
The present section focuses largely on those instances where such new
duties result from the imposition of certain types of conditions. Such
conditions, it will be seen, are generally those which must be
determined by some official to have been met, before the appropriation
in question can become effective.
Generally, an amendment forbidding expenditure of an appropriation
unless action contrary to existing law is taken is legislation and is
not in order as a limitation.(1)
---------------------------------------------------------------------------
1. See, for example, Sec. 50.4, infra.
The same would be true of an amendment conditioning
expenditure on actions for which no authority in law exists.
---------------------------------------------------------------------------
Thus, while it is in order on a general appropriation bill to
prohibit the availability of funds therein for a certain activity, that
prohibition may not be made contingent upon the performance of a new
affirmative duty on the part of a federal
official. -------------------
Attached to Otherwise Valid Limitation
Sec. 50.1 A provision in a paragraph of the legislative ap
[[Page 6020]]
propriation bill prohibiting the availability of funds therein for
the House Library unless and until arrangements have been made to
phase out its operations by the end of fiscal 1974 was held to
impose additional duties on the Clerk and was ruled out as
legislation in violation of Rule XXI clause 2.
On Apr. 17, 1973,(2) during consideration in the
Committee of the Whole of the legislative branch appropriation bill
(H.R. 6691), a point of order was raised against the following
provision:
---------------------------------------------------------------------------
2. 119 Cong. Rec. 12780, 12781, 93d Cong. 1st Sess.
---------------------------------------------------------------------------
Mr. [Wayne L.] Hays [of Ohio]: Mr. Chairman, I make a point of
order against (certain) language on page 3, ``Office of the
Clerk,'' . . . [on] the ground that it is legislation on the
appropriation bill.
The portion of the bill to which the point of order relates is
as follows:
Office of the Clerk
For the Office of the Clerk, including not to exceed
$265,572 for the House Recording Studio, $3,264,730: Provided,
That no part of this amount shall be available for the House
Library--Document Room (in the Cannon House Office Building)
unless and until appropriate arrangements have been made to
phase out and terminate its operations not later than the close
of the fiscal year 1974.
The Chairman: (3) Does the gentleman from Texas wish
to be heard on the point of order?
---------------------------------------------------------------------------
3. John M. Murphy (N.Y.).
---------------------------------------------------------------------------
Mr. [Robert R.] Casey of Texas: Yes; Mr. Chairman.
The Chairman: The Chair will hear the gentleman.
Mr. Casey of Texas: Mr. Chairman, in my opinion it is not
legislation on an appropriation bill, but rather in the form of a
limitation. I think it is wholly within the jurisdiction of the
committee to include this provision in the bill.
The Chairman: The Chair observes that the language ``that no
part of this amount shall be available for the House Library--
Document Room (in the Cannon House Office Building)'' is in the
form of a limitation. However, the language which follows--``unless
and until appropriate arrangements have been made to phase out and
terminate its operations not later than the close of the fiscal
year 1974'' poses additional duties and therefore is legislation on
an appropriation bill, and because of that language the point of
order is sustained.
Determination of State Compliance With Conditions
Sec. 50.2 An amendment to a general appropriation bill in the form of a
limitation providing that no part of the money therein appropriated
shall be paid to any state unless and until the Secretary of
Agriculture was satisfied
[[Page 6021]]
that the state had complied with certain conditions was held to be
legislation and not in order.
On Apr. 23, 1937,(4) during consideration in the
Committee of the Whole of the Agriculture Department appropriation bill
(H.R. 6523), a point of order was raised against the following
amendment:
---------------------------------------------------------------------------
4. 81 Cong. Rec. 3783, 3784, 75th Cong. 1st Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
Amendment offered by Mr. [Jesse P.] Wolcott [of Michigan]:
Page 72, line 13, after the word ``probation'', insert
``Provided further, That no part of the money herein
appropriated shall be paid to any State unless and until, to
the satisfaction of the Secretary of Agriculture, such State
shall have provided by law or regulation modern means and
devices to safeguard against accidents and the loss of life on
highway projects within such State.''
Mr. [Clarence] Cannon of Missouri: Mr. Chairman, I make the
point of order against the amendment. It is legislation under the
guise of a limitation. The amendment provides affirmative direction
which is clearly legislation on an appropriation bill.
Mr. Wolcott: Mr. Chairman, I would like to be heard on the
point of order.
The Chairman: (5) The Chair will be pleased to hear
the gentleman from Michigan.
---------------------------------------------------------------------------
5. Franklin W. Hancock (N.C.).
---------------------------------------------------------------------------
Mr. Wolcott: Mr. Chairman, I call the attention of the Chair to
the fact we have previously authorized appropriations to be made
under the Federal Highway Act which was passed and approved by the
President on July 11, 1916. Yearly there is authorized under that
act an appropriation of $125,000,000 which is disbursed according
to regulations set up not only by the Congress in the organic act
but also by regulations of the Bureau of Public Roads. If the
Bureau of Public Roads under the terms of the act can withhold any
funds which have been authorized by the Congress from any of the
States by reason of a regulation which it might set up, likewise
the Bureau can limit the expenditure within any State by providing
certain traffic safeguards to those using the highways as a
condition precedent to the spending of Federal funds in the
construction and maintenance of Federal-aid roads. For this reason
my amendment is purely a limitation upon the distribution among and
the use of the highway funds by the States.
The Chairman: The Chair is ready to rule.
The Chair sustains the point of order on the ground that
although the amendment is drawn in the guise of a limitation, it
constitutes new legislation in that it imposes additional duties
upon the Secretary.
Parliamentarian's Note: It should be noted that the Chair based its
decision on the fact that additional duties were imposed on the
Secretary, rather than on whatever actions might be required on the
part of states to qualify as recipients of the funds. The latter
consideration as a pos
[[Page 6022]]
sible basis for a point of order is discussed in Sec. Sec. 53 and 54,
infra.
Determination by Secretary as to Authorization
Sec. 50.3 Language in a general appropriation bill in the form of a
limitation providing that no part of a certain appropriation shall
be available until it is determined by the Secretary of the
Interior that authorization therefor has been approved by the
Congress was held to constitute legislation on an appropriation
bill and not in order.
On May 17, 1937,(6) the Committee of the Whole was
considering H.R. 6958, an Interior Department appropriation bill. The
Clerk read as follows:
---------------------------------------------------------------------------
6. 81 Cong. Rec. 4687-89, 75th Cong. 1st Sess.
---------------------------------------------------------------------------
Central Valley project, California, $12,500,000, together with
the unexpended balance of the appropriation for this project
contained in the First Deficiency Act, fiscal year 1936: Provided,
That no part of this appropriation shall be available for
construction of such project until it is determined by the
Secretary of the Interior, upon approval, as to legality by the
Attorney General, that authorization therefor has been approved by
act of Congress.
Mr. [Frank H.] Buck [of California]: Mr. Chairman, I make a
point of order against the language beginning in line 24 with the
word ``Provided''.
Mr. [John] Taber [of New York]: Mr. Chairman, I make a point of
order against the entire paragraph.
The Chairman: (7) Does the gentleman from New York
make a point of order against the entire paragraph?
---------------------------------------------------------------------------
7. Jere Cooper (Tenn.).
---------------------------------------------------------------------------
Mr. Taber: I do.
The Chairman: The gentleman from California made a point of
order against the proviso?
Mr. Buck: Against the proviso.
The Chairman: The gentleman from California makes a point of
order against the proviso appearing in line 24, page 81. The
gentleman from New York [Mr. Taber] makes a point of order against
the entire paragraph. Of course, that presents to the Chair the
necessity of ruling upon the point of order as it relates to the
entire paragraph, because if any part of a paragraph is subject to
a point of order it naturally follows that the entire paragraph is
subject to a point of order. . . .
It appears to the Chair there can be no doubt that the language
appearing in the proviso is legislation on an appropriation bill.
The language imposes additional duties upon two executive officers
of the Government, the Secretary of the Interior and the Attorney
General. Therefore, the language in the proviso constituting
legislation on an appropriation bill, in violation of the rules of
the House, and a point of order being good as to part of a
paragraph, it naturally applies to the entire paragraph. The Chair,
therefore, sus
[[Page 6023]]
tains the point of order made by the gentleman from New York as to
the entire paragraph.
Directives to the President
Sec. 50.4 An amendment providing that none of the money appropriated in
a section of a bill shall be paid to persons in a certain category
unless hereafter appointed or reappointed by the President and
confirmed by the Senate was held to be legislation on an
appropriation bill and not in order.
On July 26, 1951,(8) during consideration in the
Committee of the Whole of a general appropriation bill (H.R. 4740), a
point of order was raised against the following amendment:
---------------------------------------------------------------------------
8. 97 Cong. Rec. 8962, 8963, 82d Cong. 1st Sess.
---------------------------------------------------------------------------
Amendment offered by Mr. [John] Phillips [of California]: On
page 58, following line 14, add a new section to be numbered 109:
None of the money appropriated in title I of this act shall
be paid to the head of any executive department who, within a
period of 5 years preceding this appointment, was a partner in,
or a member of a professional firm which derived any part of
its income from representing, or acting for a foreign
government, or who, acting as an individual, derived income
from such representation, unless hereafter appointed or
reappointed by the President and confirmed by the Senate.
Mr. [John J.] Rooney [of New York]: Mr. Chairman, I am
constrained to make the point of order against this proposed
amendment that it is legislation on an appropriation bill, in
violation of the rules of the House.
I direct the Chair's attention to Cannon's Precedents of the
House of Representatives, volume 7, section 1632, which reads as
follows:
An amendment forbidding expenditure of an appropriation
unless action contrary to existing law is taken is legislation
and is not in order as a limitation.
An amendment may not, under guise of limitation, provide
affirmative legislation on an appropriation bill. . . .
Mr. Chairman, I also call attention to section 1634 of the same
volume of Cannon's Precedents, which holds that--
Professed limitations not to become effective ``unless'' or
``until'' affirmative action was taken were held to be out of
order in an appropriation bill. . . .
Mr. [John M.] Vorys [of Ohio]: Mr. Chairman, of course the
author of the amendment, I presume, has the right to concede the
point of order, insofar as he is concerned, but it strikes me that
there is a substantial difference between the present amendment and
the one which was cited from the precedents. In that case a new law
would be required--an 8-hour law. The present amendment in the part
following the word ``unless'' merely recites what is existing law
and in our Constitution, and that is that if someone is appointed
or reappointed and confirmed by the other body, he then has the
office. . . .
[[Page 6024]]
The provision following the word ``unless'' merely recites what
is existing law under the Constitution, to wit, the appointment by
the President of an officer and his confirmation by the Senate. No
additional duties are required. There is a great deal of difference
between that and the requirement of the amendment cited from the
precedents that an 8-hour law be enacted before the amendment could
become effective. . . .
The Chairman: (9) The Chair is prepared to rule on
the point of order. . . .
---------------------------------------------------------------------------
9. Jere Cooper (Tenn.).
---------------------------------------------------------------------------
The Chair has listened to the argument presented and has
followed the precedents cited by the gentleman from New York [Mr.
Rooney], and is of the opinion that the gentleman has correctly
stated the precedents appearing in section 1632 of Cannon's
Precedents. . . .
The gentleman also cites section 1634 of Cannon's Precedents,
to which the Chair referred a moment ago in passing upon a point of
order made on a previous amendment offered.
In response to the observation made by the gentleman from Ohio
[Mr. Vorys], the Chair thinks he should state that the Chair does
not know any provision of law requiring the President of the United
States to submit the name of one of his Cabinet officers to the
Senate for confirmation after that Cabinet officer has been
appointed and confirmed by the Senate and is now acting and
serving.
The Chair invites attention to the last part of the amendment
presented: ``Unless hereafter appointed or reappointed by the
President and confirmed by the Senate.'' That would clearly impose
a duty upon the President of the United States to reappoint a
Cabinet officer and submit the name of that appointee to the Senate
for confirmation. Therefore, that would clearly provide legislation
on an appropriation bill, in violation of the rules of the House,
and the Chair sustains the point of order.
Sec. 50.5 A paragraph in a foreign aid appropriation bill prohibiting
the use of funds to pay for services performed abroad under
contract ``unless the President shall have promulgated'' security
regulations requiring certain investigations to be made, was ruled
out as legislation in violation of Rule XXI clause 2.
On June 4, 1970,(10) during consideration in the
Committee of the Whole of the foreign assistance appropriation bill
(H.R. 17867), a point of order was raised against the following
provision:
---------------------------------------------------------------------------
10. 116 Cong. Rec. 18405, 18406, 91st Cong. 2d Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
Sec. 111. None of the funds appropriated or made available
by this or any predecessor Act for the years subsequent to
fiscal year 1962 for carrying out the Foreign Assistance Act of
1961, as amended, may be used to make payments with respect to
any contract for the performance of services outside the United
States
[[Page 6025]]
by United States citizens unless the President shall have
promulgated regulations that provide for the investigation of
such citizens for loyalty and security to the extent necessary
to protect the security and other interests of the United
States: Provided, That such regulations shall require that any
such United States citizen who will have access, in connection
with the performance of such services, to information or
material classified for security reasons shall be subject to
such investigation as may otherwise be provided by law and
executive order.
The Chairman:(11) or what purpose does the gentleman
from Wisconsin rise?
---------------------------------------------------------------------------
11. Hale Boggs (La.).
---------------------------------------------------------------------------
Mr. [Clement J.] Zablocki [of Wisconsin]: Mr. Chairman, I rise
to make a point of order against section 111.
The Chairman: The gentleman will state his point of order.
Mr. Zablocki: Mr. Chairman, section 111 constitutes legislation
in an appropriation bill. This provision has been carried in
legislation since 1963.
I am in sympathy with this provision, and will do my best to
include even stronger language in the next authorization bill. The
time has come when we should clearly define the responsibilities of
our committees and prevent further encroachment, and although I
favor this language personally I must insist on my point of order
because of the principle involved, that it is legislation in an
appropriation bill.
The Chairman: Does the gentleman from Louisiana desire to be
heard on the point of order?
Mr. [Otto E.] Passman [of Louisiana]: Mr. Chairman, the
committee felt that this year, as in the previous years, that this
was a limitation provision which was added by the committee to the
fiscal year 1963 bill in order to require investigation of the U.S.
citizens outside the United States who are performing service on
U.S.-funded contracts, and for security to protect the U.S.
interests. We felt it was a limitation, and that we had carried it
for 7 years.
Mr. Chairman, I ask for a ruling.
The Chairman: The Chair is prepared to rule.
The significant language is found on line 17, where it defines
the duties of the President of the United States in saying that
``unless the President''--on line 18--``shall have promulgated
regulations that provide for the investigation of such citizens,''
and so on. That again is clearly legislation on an appropriation
bill, and falls within the prohibition, and the Chair sustains the
point of order.
Directive to Administrator of Federal Aviation Agency
Sec. 50.6 To a general appropriation bill providing funds for an
additional airport for the District of Columbia, an amendment
providing that no part of the appropriation shall be used for land
acquisition for access roads until the Administrator of the Federal
Aviation Agency shall have held public hearings to allow local
residents to express their views on the loca
[[Page 6026]]
tion of such roads, was held to be legislation and not in order.
On June 29, 1959,(12) during consideration in the
Committee of the Whole of a supplemental appropriation bill (H.R.
7978), a point of order was raised against the following amendment:
---------------------------------------------------------------------------
12. 105 Cong. Rec. 12124, 12125, 86th Cong. 1st Sess.
---------------------------------------------------------------------------
Mr. [Joel T.] Broyhill [of Virginia]: Mr. Chairman, I offer an
amendment.
The Clerk read as follows:
Amendment offered by Mr. Broyhill: On page 3, line 10, add
the following: ``Provided, That no part of any appropriation
made in this Act shall be used for land acquisition for any
access road to the public airport in the vicinity of the
District of Columbia authorized by the Act of September 7,
1950, until after the Administrator of the Federal Aviation
Agency shall have consulted with the Board of Supervisors of
Fairfax County, Virginia, on the location of such road and
shall have had public hearings at a convenient location, or
have afforded the opportunity for such hearings, for the
purpose of enabling persons through or contiguous to whose
property such road will pass, to express any objections they
may have to the proposed location of such road.''
Mr. [Albert] Thomas [of Texas]: Mr. Chairman, I make a point of
order against the amendment on the ground that it is legislation on
an appropriation bill.
The Chairman:(13) Does the gentleman from Virginia
desire to be heard on the point of order?
---------------------------------------------------------------------------
13. Paul J. Kilday (Tex.).
---------------------------------------------------------------------------
Mr. Broyhill: Yes, if the Chair please.
The Chairman: The Chair will hear the gentleman.
Mr. Broyhill: Mr. Chairman, this amendment is similar to the
limitation we had in the appropriation bill for this same project
last year. It merely requires that the community be consulted as
provided in the authorization act. It likewise requires public
hearings as the authorization act requires. We feel that to require
public hearings in the area which has been designated as the access
road site is consistent with the authorizing legislation.
The Chairman: The Chair is prepared to rule. . . .
The amendment seeks to enjoin upon the Administrator of the
Federal Aviation Agency duties and obligations not now required by
law. It is therefore legislation on an appropriation bill.
The Chair sustains the point of order.
Expenditures To Be Pursuant to Recommendations by Officials
Sec. 50.7 An amendment rendering an appropriation contingent upon
recommendations by federal officials not required by law is
legislation violating Rule XXI clause 2; to an amendment to a
general appropriation bill providing additional funds for the
Community Services Administration, an amendment prohibiting the
expenditure
[[Page 6027]]
of funds in the pending paragraph for energy conservation services
unless expended pursuant to recommendations by the Community
Services Administration, state economic opportunity offices, and
the General Accounting Office, was ruled out as legislation since
providing a condition precedent not required by existing law.
On June 27, 1979,(14) during consideration in the
Committee of the Whole of the Departments of Labor and Health,
Education, and Welfare appropriation bill (H.R. 4389), a point of
order was sustained against the following amendment:
---------------------------------------------------------------------------
14. 125 Cong. Rec. 17054, 17055, 96th Cong. 1st Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
Amendment offered by Mr. [David F.] Emery [of Maine] to the
amendment offered by Mr. Dodd: At the end of the amendment
offered by Mr. Dodd insert the following:
Page 46, after line 14, insert the following: None of the
sums appropriated in this paragraph shall be used to provide
Emergency Energy Conservation Services under section 222(a)(5)
of part B of title II of the Economic Opportunity Act of 1964,
unless such sum is expended pursuant to recommendations which
have been made by the Community Services Administration, State
economic opportunity offices, and the General Accounting
Office. . . .
Mr. [William H.] Natcher [of Kentucky]: Mr. Chairman, this
amendment imposes additional duties and further it imposes new
determinations. In addition to that, Mr. Chairman, the amendment
changes existing law. Further it requires new procedures and
determinations not under the existing and present law. . . .
Mr. Emery: . . . This is clearly a limitation on the use of
funds appropriated by the Dodd amendment. The intent of the
legislation is very clear, and that is to comply with findings that
have been made in the GAO study at the request of a congressional
committee. I believe that the GAO study was asked for by the
gentlewoman from Illinois (Mrs. Collins) from the Subcommittee on
Manpower and Housing as an attempt to find ways to improve the
distribution of these funds.
The study reports findings pursuant to a congressional
committee request for information. I believe that is well within
the scope of the limitation and is appropriate on this bill.
The Chairman: (15) The Chair is prepared to rule on
the point of order.
---------------------------------------------------------------------------
15. Don Fuqua (Fla.).
---------------------------------------------------------------------------
The amendment offered by the gentleman from Maine is a
limitation on the sums appropriated in the first part of the
amendment.
However, in the last part of the amendment it does set forth
new duties upon the Community Services Administration, State
economic opportunity offices as well as the General Accounting
Office. Since these new determinations are imposed as exclusive
conditions precedent to the expenditure of funds beyond what
present law requires, it is legislation on an appropriation bill
and the Chair is constrained to rule the amendment out of
[[Page 6028]]
order and sustain the point of order of the gentleman from
Kentucky.
Health and Safety Information Required
Sec. 50.8 Where existing law confers discretionary authority upon an
executive agency to require submission of health and safety
information by applicants for licenses, an amendment to a general
appropriation bill restricting that discretion by requiring the
submission of certain information as a condition of receiving funds
constitutes legislation.
On June 18, 1979,(16) an amendment was offered as
follows to H.R. 4399, the energy and water appropriation bill for
fiscal 1980:
---------------------------------------------------------------------------
16. 125 Cong. Rec. 15286, 15287, 96th Cong. 1st Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
Amendment offered by Mr. [James] Weaver [of Oregon]: On
page 27 after line 23, add:
``No monies appropriated in this paragraph may be expended
by the Nuclear Regulatory Commission for the issuance of an
operating license for a nuclear powerplant located in a state
which does not have an emergency evacuation plan which has been
tested, and submitted to the Commission pursuant to law.''.
The amendment was ruled out on a point of order. The proceedings
are carried in full in Sec. 51.11, infra.
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. 51. Restrictions on or Enlargement of Discretion
Propositions in a general appropriation bill that affirmatively
take away an authority or discretion conferred by law are subject to a
point of order under the rule prohibiting legislation on appropriation
bills.
Where the authorizing law has established the degree of discretion
officials have in the exercise of their duties, problems may arise when
an appropriation measure seems to restrict that discretion. As in other
areas, the appropriation measure cannot ``change existing law,'' but
can impose limitations by appropriating for only part of an authorized
purpose.(17) The question will be, then, does the
appropriation measure merely withhold funds that, if appropriated,
would be administered by the official, or does it so further and
actually change the scope of the official's discretion from that set
forth in the authorizing law?
---------------------------------------------------------------------------
17. See Sec. 64, infra.
---------------------------------------------------------------------------
A helpful approach in many cases is to determine whether the
[[Page 6029]]
appropriation measure mandates criteria that are within the range of
choices given to the official by the authorizing law. If the
authorizing law permits the official to pursue courses A, B, C, and D,
and the appropriation measure provides funds permitting the official to
pursue A, B, and C, the measure is a proper limitation because it
appropriates for ``part of the authorized purpose.'' But if the
appropriation has the effect of permitting or requiring the official to
pursue courses A, B, and E, then the measure has changed existing law
by mandating criteria that were not within the range of choices given
by the authorizing law which established the degree of the official's
discretion.
A limitation may in fact amount to a change in policy, but if the
limitation is merely a negative restriction on use of funds, it will
normally be allowed. For example, in one instance (18)
during consideration of the army appropriation bill in 1931, an
amendment was allowed which provided that ``none of the funds
appropriated in this act shall be used for . . . any compulsory
military course or military training in any civil school or college or
for the pay of any . . . employee at any civil school or college where
a military course or military training is compulsory.'' The Chair noted
that the amendment ``simply refuses to appropriate for purposes which
are authorized by law and for which Congress may or may not appropriate
as it sees fit,'' and said that, while the amendment did change a
policy of the War Department, ``a change of policy can be made by the
failure of Congress to appropriate for an authorized object.''
---------------------------------------------------------------------------
18. 7 Cannon's Precedents Sec. 1694.
---------------------------------------------------------------------------
It should be noted that in an earlier ruling (1925) (19)
the Chair had said that where the purpose of an amendment appeared to
be a restriction of executive discretion to a degree amounting to a
change in policy rather than a matter of administrative detail, the
amendment would not be allowed. A proposed amendment to the War
Department appropriation bill had in that instance provided, ``No part
of the moneys appropriated in this act shall be used to pay any officer
to recruit the Army beyond the limit of 100,000 three-year enlisted
strength.'' The Chair ruled that the purpose rather than the form of a
proposed limitation is the criterion by which its admissibility should
be judged, and held that the purpose in this instance was legislative,
``in that the intent is
[[Page 6030]]
to restrict executive discretion to a degree that may be fairly termed
a change in policy.'' Today this ruling would be followed only where a
proposed limitation is accompanied by language explicitly stating a
legislative motive or purpose in carrying out the
limitation.(20) If such intent were merely one that might be
inferred, as in the 1925 ruling, the proposed limitation would not be
barred.
---------------------------------------------------------------------------
19. 7 Cannon's Precedents Sec. 1691.
20. See Sec. 66.4, infra.
---------------------------------------------------------------------------
In a few cases,(1) the issue has arisen as to the effect
of a proposal seemingly having the purpose of enlarging, rather than
restricting, an official's discretion. Such proposals, depending on
circumstances, may also be viewed as changing existing law.
---------------------------------------------------------------------------
1. See, for example, Sec. 22.19,
supra. -------------------
---------------------------------------------------------------------------
General Rule
Sec. 51.1 Language in an appropriation bill making mandatory on the
part of an executive officer an action within his discretion under
existing law, is legislation and not in order: language in an
appropriation bill providing that during fiscal 1958, operation of
the Army-Navy Hospital at Hot Springs, Ark., and Murphy General
Hospital at Boston, Mass., shall be continued, was held to be
legislation and not in order.
On May 28, 1957,(2) during consideration in the
Committee of the Whole of the Defense Department appropriation bill
(H.R. 7665), a point of order was raised against the following
provision:
---------------------------------------------------------------------------
2. 103 Cong. Rec. 7901, 7902, 85th Cong. 1st Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
Operation and Maintenance
For expenses, not otherwise provided for, necessary for the
operation and maintenance of the Army, including
administration; medical and dental care of personnel entitled
thereto by law or regulation (including charges of private
facilities for care of military personnel on duty or leave,
except elective private treatment), and other measures . . .
conclusive upon the accounting officers of the Government;
$3,145,200,000: Provided, That during the fiscal year 1958 the
maintenance, operation, and availability of the Army-Navy
Hospital at Hot Springs National Park, Arkansas, and the Murphy
General Hospital in Boston, Mass., to meet requirements of the
military and naval forces shall be continued.
Mr. [Gerald R.] Ford [of Michigan]: Mr. Chairman, I make a
point of order against the language on page 8, beginning on line 2
and running through line 6.
The Chairman:(3) Will the gentleman state his point
of order?
---------------------------------------------------------------------------
3. Eugene J. Keogh (N.Y.).
---------------------------------------------------------------------------
Mr. Ford: The point of order, Mr. Chairman, is predicated on
the fact
[[Page 6031]]
that this is legislation on an appropriation bill and contrary to
existing law. It is my understanding under the rules of the House
that the inclusion of any language in an appropriation bill that
imposes an additional burden or duty or authority on the executive
branch of the Government, not required by law, makes such language
subject to a point of order as legislation on an appropriation
bill. . . .
The Chairman: Does any other gentleman desire to be heard on
the point of order? If so, the Chair will be pleased to hear him.
Mr. Ford: Mr. Chairman, I think the crux of the matter is that
without this language in the appropriation bill the executive
branch of the Government, in this case the Department of the Army,
would have full authority to close these installations. In my
opinion, the inclusion of the language which is currently in the
Defense Department appropriation bill for the fiscal year 1957, and
the language to which I object is an extention of that language in
the fiscal year 1958 Department of Defense appropriation bill. But
let me just refer as a practical matter to the language in the
current appropriation bill and I will carry on from there to show
that if this language is included in the fiscal 1958 bill again,
there is no question but what it imposes an additional burden, an
additional obligation, on the Department of Defense. Let me read
testimony from the Department of the Army, and this is Secretary
Brucker testifying on page 479 of the Department of Defense
hearings for the fiscal year 1958:
Secretary Brucker: Mr. Ford, the situation is precisely this:
Twice we have recommended to the committees of Congress that both
of those hospitals be abandoned and that no money be put in for
them. The reason is because we do not have need for them, and while
the hospitals, of course, have adequate personnel, both nurses and
doctors, there is not sufficient patient load in the area for
either one of those two hospitals--
Here is the important language, still quoting Secretary Brucker
. . .
so twice we have recommended against inclusion of those two
hospitals, but twice they were placed back into the bill, and
we were compelled to retain them.
There is language, Mr. Chairman, which indicates clearly that
the Department of the Army by the inclusion of this language in
fiscal 1957 and by the possibility of inclusion of the same
language in fiscal 1958 is required to do something it does not
want to do and it does not have to do unless this language is
included. . . .
The Chairman: The Chair is ready to rule. . . .
The language of the proviso in effect imposes upon a department
of Government an affirmative and mandatory requirement that the two
named installations shall be continued. In the opinion of the
Chair, the interposition of that affirmative requirement is
legislation on an appropriation bill and the Chair, therefore,
sustains the point of order.
Mandating One of Several Choices
Sec. 51.2 To be admissible on an appropriation bill a limitation may
not impose addi
[[Page 6032]]
tional duties on executives or limit their discretion: to an
appropriation bill an amendment prohibiting use of an appropriation
for regulation of rates ``upon any basis other than actual
legitimate cost, less accrued depreciation'' was held to impose
additional duties upon officials and to limit their discretion
provided in existing law to determine rates.
On Mar. 30, 1954,(4) during consideration in the
Committee of the Whole of the independent offices appropriation bill
(H.R. 8583), a point of order was raised against the following
amendment, offered to the portion of the bill providing funds for
salaries and expenses for the Federal Power Commission:
---------------------------------------------------------------------------
4. 100 Cong. Rec. 4101, 4102, 83d Cong. 2d Sess.
---------------------------------------------------------------------------
Mr. (Sidney R.) Yates (of Illinois): Mr. Chairman, I offer an
amendment.
The Clerk read as follows:
Amendment offered by Mr. Yates: On page 18, line 25, strike
the period after the word ``individuals'' and insert
``Provided, That in order to assure efficient, economic, and
expeditious regulation, no part of this appropriation shall be
used for the regulation of rates or charges of any company
subject to the jurisdiction of the Commission, upon any basis
other than actual legitimate cost, less accrued depreciation.''
Mr. [John] Phillips [of California]: Mr. Chairman, a point of
order.
The Chairman: (5) The gentleman will state it.
---------------------------------------------------------------------------
5. Louis E. Graham (Pa.).
---------------------------------------------------------------------------
Mr. Phillips: Mr. Chairman, I make a point of order against the
amendment on the ground that it is legislation upon an
appropriation bill, which I understand we are trying to keep away
from.
Mr. Yates: Mr. Chairman, it is certainly not legislation on an
appropriation bill. It is in fact a limitation of the type that has
been recognized as valid many times in the past. I submit that it
is perfectly proper, that it is a limitation on the appropriations
for a specific purpose and is entirely in order. . . .
The Chairman: The Chair is ready to rule.
The gentleman from Illinois [Mr. Yates] has offered an amendment as
follows:
On page 18, line 25, ``provided that in order to assure
efficient, economic, and expeditious regulation, no part of
this appropriation shall be used for the regulation of rates or
charges of any company subject to the jurisdiction of the
Commission--
And the Chair notes these words particularly--
upon any basis other than actual legitimate cost less accrued
depreciation.
Although presented in the form of a limitation on an
appropriation, since it would impose additional duties upon
officials and limit the exercise of their discretion, the amendment
contains legislation, and the Chair sustains the point of order.
Sec. 51.3 Although a law may give an executive officer author
[[Page 6033]]
ity to do a certain thing, a proposition directing him so to do is
legislative in nature and not in order on an appropriation bill:
language in the District of Columbia appropriation bill providing
that the tax in effect in a certain fiscal year on real estate and
certain tangible personal property shall not be increased for a
subsequent fiscal year was held to be legislation where existing
law gave officials authority to fix the tax rate on an annual
basis.
On Apr. 2, 1937,(6) during consideration in the
Committee of the Whole of the District of Columbia appropriation
bill, a point of order was raised against the following provision:
---------------------------------------------------------------------------
6. 81 Cong. Rec. 3096-98, 75th Cong. 1st Sess.
---------------------------------------------------------------------------
Be it enacted, etc., That in order to defray the expenses of
the District of Columbia for the fiscal year ending June 30, 1938,
any revenue (not including the proportionate share of the United
States in any revenue arising as the result of the expenditure of
appropriations made for the fiscal year 1924 and prior fiscal
years) now required by law to be credited to the District of
Columbia and the United States in the same proportion that each
contributed to the activity or source from whence such revenue was
derived shall be credited wholly to the District of Columbia, and,
in addition, $5,000,000 is appropriated, out of any money in the
Treasury not otherwise appropriated, to be advanced July 1, 1937,
and all of the remainder out of the combined revenues of the
District of Columbia, and the tax rate in effect in the fiscal year
1937 on real estate and tangible personal property subject to
taxation in the District of Columbia shall not be increased for the
fiscal year 1938, namely: . . .
Mr. [Jack] Nichols [of Oklahoma]: Mr. Chairman, I rise to a
point of order.
The Chairman: (7) The gentleman will state it.
---------------------------------------------------------------------------
7. Jere Cooper [Tenn.).
---------------------------------------------------------------------------
Mr. Nichols: I make a point of order against that portion of
the bill on page 2, beginning after the comma, in line 11, which
reads as follows:
And the tax rate in effect in the fiscal year 1937 on real
estate and tangible personal property subject to taxation in
the District of Columbia shall not be increased for the fiscal
year 1938.
In support of my point of order I call the Chair's attention to
the fact that this provision is contrary to existing law and is
legislation. . . .
The Chairman: The Chair is ready to rule.
The Chair feels it is appropriate to state that in the broad
and general application it is well recognized that the Committee on
Appropriations has the authority to exercise the function of
appropriating for the activities of the Federal Government under
existing law. In other words, there must be authority in existing
law to support the appropriation provided in a general
appropriation bill.
It is also well settled that the Appropriations Committee does
not have au
[[Page 6034]]
thority to include legislation in a general appropriation bill.
It will be recalled that considerable debate occurred at the
time of the creation of the Appropriations Committee. Apprehension
was voiced at that time that the Committee on Appropriations might
encroach upon the functions of the standing legislative committees
of the House. For this reason the rules of the House make it
certain and definite that the Appropriations Committee has
authority only to appropriate or to provide funds pursuant to the
authority of existing law.
The gentleman from Oklahoma [Mr. Nichols] makes a point of
order to the following language which appears in the pending bill,
found on page 2, line 11:
And the tax rate in effect in the fiscal year 1937 on real
estate and tangible personal property subject to taxation in
the District of Columbia shall not be increased for the fiscal
year 1938, namely.
The provision of existing law is as follows:
That for the purpose of defraying such expenses of the
District of Columbia as the Congress may from time to time
appropriate for, there hereby is levied for each and every
fiscal year succeeding that ending June 30, 1937, a tax at such
rate on the aforesaid property subject to taxation in the
District of Columbia, and the Commissioners of the District of
Columbia hereby are empowered and directed to ascertain,
determine, and fix annually such rate of taxation, as will when
applied as aforesaid produce the money needed to defray the
share of the expenses of the District during the year for which
the rate is fixed.
A question very similar to the pending question was raised when
the District of Columbia appropriation bill was under consideration
on February 15, 1933.
The Chair observes that in the course of the argument presented
by the gentleman from Mississippi in opposition to the point of
order he quoted the identical provision that was involved in the
point of order raised at that time. It was on the basis of the
language quoted by the gentleman from Mississippi that the ruling
of the Chair turned.
On February 15, 1933, as shown in volume 76, part 4, of the
Congressional Record, the following occurred:
The point of order is directed at the language in the bill
on line 10, page 2, which reads as follows: ``And the tax rate
in effect for the fiscal year 1933 on real estate and tangible
personal property subject to taxation in the District of
Columbia shall not be decreased for the fiscal year 1934.''
The point of order was discussed at some length, after which
the Chair ruled as follows:
The gentleman from Virginia makes the point of order
against the language appearing on page 2, line 10, which reads
as follows--
And again quotes the language that has just been quoted.
The point of order is that this language is legislation on
an appropriation bill. The Chair is of the opinion that it is
legislation on an appropriation bill, and therefore sustains
the point of order.
The Chair also calls attention to section 3543 of Hinds'
Precedents of the House, volume 4, the syllabus of which is as
follows:
Although a law may give an executive officer authority to
do a certain
[[Page 6035]]
thing, a provision directing him so to do is legislative in
nature and not in order on a general appropriation bill.
It is apparent, of course, that if it was not in order in a
general appropriation bill to authorize and direct the
Commissioners of the District of Columbia to not decrease the tax
rate for a certain year, obviously the same logic would require the
application of the rule to a proposed increase in the tax rate. In
other words, the question here presented is whether or not an
executive officer can be directed specifically and definitely not
to do a thing he is clearly given discretionary authority to do.
The Chair feels that the language to which the point of order
is made is legislation on an appropriation bill, and therefore
sustains the point of order.
Imposing Conditions on Exercise of Discretion
Sec. 51.4 Where existing law authorized the expenditure of funds for
the benefit and existence of Indians, under broad supervisory
powers given to the Secretary of the Interior, provisions in an
appropriation bill which imposed further conditions affecting both
the exercise of those powers and the use of funds were ruled out as
legislation.
On May 14, 1937,(8) during consideration in the
Committee of the Whole of the Interior Department appropriation bill
(H.R. 6958), a point of order was raised against the following
provision:
---------------------------------------------------------------------------
8. 81 Cong. Rec. 4598, 4599, 75th Cong. 1st Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
For the purpose of encouraging industry and self-support
among the Indians and to aid them in the culture of fruits,
grains, and other crops, $165,000, which sum may be used for
the purchase of seeds, animals, machinery, tools, implements,
and other equipment necessary, and for advances to Indians
having irrigable allotments to assist them in the development
and cultivation thereof, in the discretion of the Secretary of
the Interior, to enable Indians to become self-supporting:
Provided, That the expenditures for the purposes above set
forth shall be under conditions to be prescribed by the
Secretary of the Interior for repayment to the United States on
or before June 30, 1943, except in the case of loans on
irrigable lands for permanent improvement of said lands, in
which the period for repayment may run for not exceeding 20
years, in the discretion of the Secretary of the Interior:
Provided further, That not to exceed $25,000 of the amount
herein appropriated shall be expended on any one reservation or
for the benefit of any one tribe of Indians: Provided further,
That the Secretary of the Interior is hereby authorized, in his
discretion and under such rules and regulations as he may
prescribe, to make advances from this appropriation to old,
disabled, or indigent Indian allottees, for their support, to
remain a charge and lien against their lands until paid:
Provided further, That not to exceed $15,000 may be advanced to
worthy Indian youths to enable them to take educational
courses, including courses in nursing, home economics,
forestry, and other industrial subjects in colleges,
[[Page 6036]]
universities, or other institutions, and advances so made shall
be reimbursed in not to exceed 8 years, under such rules and
regulations as the Secretary of the Interior may prescribe.
Mr. [John] Taber [of New York]: Mr. Chairman, I make a point of
order against the paragraph beginning on page 26, line 4. The point
of order is that this is legislation on an appropriation bill and
it imposes discretionary duties upon the Secretary of the Interior.
The language at the bottom of the bill, beginning with ``Provided
further'', line 22, and the last proviso are entirely the same.
They provide that the Secretary of the Interior shall make rules
and regulations and there is no question but what it imposes
additional duties upon the Secretary of the Interior all the way
through.
In lines 17 and 18 the terms of repayment are made subject to
the discretion of the Secretary of the Interior and in lines 9 and
10 it is subject to that same discretion. This is all on page 26.
The whole paragraph is subject to discretion and imposes duties
upon the Secretary.
Mr. [Jed] Johnson of Oklahoma: Mr. Chairman, The Committee
Feels That This Provision is in Order. It provides only a method by
which the appropriation might be expended. I have no further
comment to make.
The Chairman: (9) The Chair would like to inquire of
the gentleman from Oklahoma as to the authority for the language
appearing in lines 1 and 2, page 27, which the Chair will quote:
---------------------------------------------------------------------------
9. Jere Cooper (Tenn.).
---------------------------------------------------------------------------
To remain a charge and lien against their land until paid--
Is there provision in some existing law creating a lien upon
these lands, to which this provision refers?
Mr. Johnson of Oklahoma: I cannot say there is provision in
existing law. The only existing law would be the fact this has been
in the bill for several years and, of course, that is not
controlling.
The Chairman: The Chair would like to inquire further of the
gentleman with reference to the language appearing in lines 7 and
8, page 27, reading as follows:
And advances so made shall be reimbursed in not to exceed 8
years under such rules and regulations as the Secretary of the
Interior may prescribe.
Will the gentleman advise the Chair as to any provision of
existing law upon which this language is based?
Mr. Johnson of Oklahoma: Mr. Chairman, this is the exact
language that has been used for several years and the gentleman
from Oklahoma knows of no specific basis of law for it.
The Chairman: The Chair is ready to rule.
The gentleman from New York makes a point of order against the
entire paragraph beginning in line 4, page 26, extending down to
and including line 9, page 27. The gentleman from New York [Mr.
Taber] in making his point of order invited attention to certain
language appearing in lines 10 and 11, page 26, with reference to
the discretion of the Secretary of the Interior.
The Chair has examined the act commonly referred to and known as
the Snyder Act and invites attention to section 13 of that act, in
which the following appears:
[[Page 6037]]
Expenditures of appropriations by Bureau of Indian Affairs:
The Bureau of Indian Affairs, under the supervision of the
Secretary of the Interior, shall direct, supervise, and expend
such moneys as Congress may from time to time appropriate for
the benefit, care, and assistance of the Indians throughout the
United States for the following purposes: General support and
civilization, including education; for industrial assistance
and advancement and general administration of Indian problems.
Further for general and incidental expenses in connection with
the administration of Indian affairs.
It is the opinion of the Chair that the act to which attention has
been invited confers upon the Secretary of the Interior rather broad
discretionary authority. The Chair is of opinion that the language to
which the gentleman invited attention is not subject to a point of
order, but that the language to which the Chair invited the attention
of the gentleman from Oklahoma with reference to the provisos does
constitute legislation on an appropriation bill not authorized by the
rules of the House. It naturally follows that as the point of order has
to be sustained as to these two provisos, it has to be sustained as to
the entire paragraph. The Chair therefore sustains the point of order
made by the gentleman from New York.
Specific Appropriation Where General Purpose Authorized
Sec. 51.5 While the appropriation of a lump sum for a general purpose
authorized by law is in order, a specific appropriation for a
particular item included in such general purpose is a limitation on
the discretion of the executive charged with allotment of the lump
sum and is not in order on an appropriation bill; thus a provision
of law giving general authorization for wildlife conservation
activities was held not to authorize earmarking part of an
appropriation to be expressly ``for the leasing and management of
the lands for the protection of the Florida Key deer.''
On Apr. 28, 1953,(10) the Committee of the Whole was
considering H.R. 4828, an Interior Department appropriation. A point of
order was raised against the following amendment:
---------------------------------------------------------------------------
10. 99 Cong. Rec. 4148, 83d Cong. 1st Sess.
---------------------------------------------------------------------------
Amendment offered by Mr. Lantaff: On page 20, line 6,
immediately following the semicolon and preceding the word ``and'',
insert the following: ``not to exceed $10,000 for the leasing and
management of the lands for the protection of the Florida Key deer,
16 U.S.C. 661.''
Mr. [John] Taber [of New York]: Mr. Chairman, I hate to do it,
but I must make a point of order against this amendment. It is not
authorized by law.
The Chairman: (11) Does the gentleman from Florida
desire to be heard on the point of order?
---------------------------------------------------------------------------
11. J. Harry McGregor (Ohio).
---------------------------------------------------------------------------
[[Page 6038]]
Mr. [William C.] Lantaff [of Florida]: Yes, Mr. Chairman. The
reference to the United States Code authorizes the leasing of lands
by the Department of Interior and is so cited for that purpose.
This specific authorization is to authorize the leasing of land in
this particular area for this particular project and classifies it
much the same as the authorization contained in the bill for the
Wichita Mountains Wildlife Refuge and for the Crab Orchard National
Wildlife Refuge. In the bill you will find the statutory authority
cited the same as the statutory authority cited in the amendment
which I have offered. . . .
The Chairman: The Chair is ready to rule.
The Chair has inspected section 661 of title 16 of the United
States Code, the provision which the gentleman from Florida cites
as authorizing the proposal contained in his amendment. That code
section gives fairly broad authorization to the Fish and Wildlife
Service for wildlife conservation, but it does not authorize
leasing of lands or the protection of key deer. The gentleman's
amendment would earmark funds for a narrow, specific purpose, a
purpose not mentioned in the code section which is general.
Reference is made to volume VII, section 1452, of Cannon's
Precedents, under which the Chair sustains the point of order.
Limitation on Hiring Discretion
Sec. 51.6 To an appropriation bill, an amendment providing that the
Civil Service Commission shall not impose a maximum age limitation
with respect to the appointment of persons to positions in the
competitive service who are otherwise qualified, was conceded to be
legislation and held not in order.
On Mar. 30, 1955,(12) during consideration in the
Committee of the Whole of the independent offices appropriation bill
(H.R. 5240), a point of order was raised against the following
provision:
---------------------------------------------------------------------------
12. 101 Cong. Rec. 4065, 4066, 84th Cong. 1st Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
The Civil Service Commission shall not impose a requirement
or limitation of maximum age with respect to the appointment of
persons to positions in the competitive service who are
otherwise qualified: Provided, That no person who has reached
his 70th birthday shall be appointed in the competitive civil
service on other than a temporary basis.
Mr. [Edward H.] Rees of Kansas: Mr. Chairman, I make a point of
order to the language on page 4, line 6 to line 12 inclusive, that
it is legislation on an appropriation bill. . . .
. . . Mr. Chairman, I have offered this point of order against
certain provisions in title 1 relating to the Civil Service
Commission because it contains legislation in an appropriation act.
Under this legislative directive contained in the appropriation act
you would prohibit the Civil Service Commission from imposing any
requirement or limitation of maximum age
[[Page 6039]]
whatsoever with respect to the appointment of persons in
competitive Civil Service. . . .
The Chairman: (13) Does the gentleman from Texas
[Mr. Thomas] desire to be heard on the point of order?
---------------------------------------------------------------------------
13. Albert Rains (Ala.).
---------------------------------------------------------------------------
Mr. [Albert] Thomas: Mr. Chairman, may I say that our
distinguished colleague from Kansas (Mr. Rees) is usually right.
This is legislation.
Mr. [Sidney R.] Yates [of Illinois]: Mr. Chairman, will the
gentleman defer his point of order?
Mr. Rees of Kansas: No, I shall not.
The Chairman: The Chair is ready to rule. In the opinion of the
Chair, the language is legislation on an appropriation bill and the
point of order is sustained.
Mandating an Investigation Which Agency Has Discretion to Make
Sec. 51.7 Language in an appropriation bill directing the Public
Utilities Commission to make an investigation where existing law
authorized it in its discretion to make such investigation was held
to be legislation and not in order on an appropriation bill.
On Apr. 2, 1937,(14) during consideration in the
Committee of the Whole of the District of Columbia appropriation bill,
both Mr. Thomas J. O'Brien, of Illinois, and Mr. Jack Nichols, of
Oklahoma, raised a point of order against the following provision as
being legislation:
---------------------------------------------------------------------------
14. 81 Cong. Rec. 3101, 75th Cong. 1st Sess.
---------------------------------------------------------------------------
The Public Utilities Commission is directed to cause an
investigation to be made of the Chesapeake & Potomac Telephone Co.
with a view to ascertaining the reasonableness of existing rates,
tolls, charges, and services. . . .
The manager of the bill (Mr. Ross A. Collins, of Mississippi)
declined to argue the point of order and the Chair (15)
ruled as follows:
---------------------------------------------------------------------------
15. Jere Cooper (Tenn.).
---------------------------------------------------------------------------
The gentleman from Illinois and the gentleman from Oklahoma
both make a point of order against the language [above].
Existing law provides that--
Upon its own initiative or upon reasonable complaint made
against any public utility that any of the rates, tolls,
charges, or schedules or services or time and conditions of
payment, or any joint rate or rates, schedules or services are
in any respect unreasonable or unjustly discriminatory, or that
any time schedule, regulation, or act whatsoever affecting or
relating to the conduct of any street railway, etc., . . . the
Commission may in its discretion proceed, with or without
notice, to make such investigation as it may deem necessary or
convenient.
Therefore, it is clearly to be seen that under existing law the
Public Utilities Commission has discretionary authority to make the
types of investigation that are embraced in the lan
[[Page 6040]]
guage here upon which a point of order is made.
This language in the pending bill seeks to direct the Public
Utilities Commissioners to do what they have clearly discretionary
authority to do. The effect of this language would be to direct the
Commissioners to do what they have authority to do within their
discretion. Therefore it is legislation on a general appropriation
bill and has the effect of changing existing law.
The Chair would also like to invite attention to the same
provision of Hinds' Precedents, section 3853 of volume IV, to which
attention was invited in the course of a previous ruling made by
the Chair. This provision is as follows:
Although a law may give an executive officer authority to
do a certain thing, a provision directing him so to do is
legislative in nature and not in order on a general
appropriation bill.
Therefore the Chair sustains the point of order.
Parliamentarian's Note: An apparently contrary ruling was made on
May 10, 1946,(16) but would probably not be followed in
current practice. On that date, the Chair held in order, as a
limitation on an appropriation bill, language providing that no part of
an appropriation for Indian reservation roads be available except on
the basis of an apportionment among the states made in a specified
manner. The Chair rejected the argument of Mr. Francis H. Case, of
South Dakota, that, to make mandatory on the part of an executive
officer an action within his discretion under existing law, was, in
fact, to change existing law by interfering with the officer's
discretion.
---------------------------------------------------------------------------
16. 92 Cong. Rec. 4854, 4855, 79th Cong. 2d Sess.
---------------------------------------------------------------------------
Mandating Uniformity in Mortgage Commitments
Sec. 51.8 To an appropriation bill an amendment providing that no funds
in the bill be used for expenses of issuing mortgage commitments
under the National Housing Act other than on a basis of issuing
such commitments to all segments of the population was held to be
legislation.
On Mar. 31, 1954,(17) during consideration in the
Committee of the Whole of the independent offices appropriation bill
(H.R. 8583), a point of order was raised against the following
amendment:
---------------------------------------------------------------------------
17. 100 Cong. Rec. 4267, 83d Cong. 2d Sess.
---------------------------------------------------------------------------
Amendment offered by Mr. [Sidney R.] Yates [of Illinois]: Page
65, line 11, after the colon and the words ``(12 U.S.C. 1701)'',
insert the following: ``Provided, That no part of any appropriation
or fund in this act shall be used for administrative expenses in
connection with the issuance of mort
[[Page 6041]]
gage commitments under all titles of the National Housing Act, as
amended, other than on the basis of the issuance of such mortgage
commitments to all segments of the population, including those
segments which are unable to obtain adequate housing under
established home-financing programs, as nearly as possible on the
basis of effective housing demand as determined by market analyses
prepared by the Federal Housing Administration.''
Mr. [John] Phillips [of California]: Mr. Chairman, I make the
point of order that the amendment is legislation on an
appropriation bill and requires additional duties of an agency.
Mr. Yates: Mr. Chairman, I ask for a ruling.
The Chairman: (18) It appears on its face it is an
interference with executive discretion; therefore the Chair
sustains the point of order.
---------------------------------------------------------------------------
18. Louis E. Graham (Pa.).
---------------------------------------------------------------------------
Limiting Funds, Not Discretion
Sec. 51.9 It is in order on a general appropriation bill to provide
that no part, or not more than a specified amount, of an
appropriation shall be used in a certain way, even though executive
discretion be thereby negatively restricted.
On Sept. 14, 1972,(19) during consideration in the
Committee of the Whole of the Defense Department appropriation bill
(H.R. 16593), a point of order was raised against the following
amendment:
---------------------------------------------------------------------------
19. 118 Cong. Rec. 30749, 30750, 92d Cong. 2d Sess.
---------------------------------------------------------------------------
Mr. [Glenn R.] Davis of Wisconsin: Mr. Chairman, I offer an
amendment.
The Clerk read as follows:
Amendment offered by Mr. Davis of Wisconsin: Page 51, line
21, insert a new section 743 as follows:
``Of the funds made available by this Act for the
alteration, overhaul, and repair of naval vessels, not more
than $646,704,000 shall be available for the performance of
such works in Navy shipyards.''
Mr. [Louis C.] Wyman [of New Hampshire]: Mr. Chairman, I
reserve the point of order on the language of the proposed
amendment offered by the gentleman from Wisconsin.
The Chairman: (20) Does the gentleman reserve his
point of order?
---------------------------------------------------------------------------
20. Daniel D. Rostenkowski (Ill.).
---------------------------------------------------------------------------
Mr. Wyman: Mr. Chairman, I am simply trying to protect my
rights on grounds the gentleman from Wisconsin----
Mr. Davis of Wisconsin: Mr. Chairman, if the gentleman wishes
to argue, I wish he would argue it and not take up my time.
The Chairman: Does the gentleman wish to state his point of
order?
Mr. Wyman: I make the point of order that the amendment
proposed by the gentleman from Wisconsin in the form in which it is
presently worded does not constitute a limitation, but is rather
legislation upon an appropriations bill contrary to the rules of
the House.
The Chairman: Does the gentleman from Wisconsin care to be
heard on the point of order?
[[Page 6042]]
Mr. Davis of Wisconsin: I do, Mr. Chairman. I submit to the
Chair that this is definitely a limitation on the amount of money
which may be spent for a specific purpose. I would suggest to the
Chair that it is clearly within the rules of the House as a
limitation on an appropriations bill.
The Chairman: The Chair has examined the amendment and feels
that it is a valid limitation on the funds made available in the
bill and overrules the point of order.
Parliamentarians Note: The persuasive precedent standing for this
proposition is found in 7 Cannon's Precedents Sec. 1694.
Sec. 51.10 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 of funds for a particular
purpose, even though such executive discretion is thereby
restricted by implication.
On July 31, 1969,(1) the Committee of the Whole was
considering H.R. 13111, a Departments of Labor, and Health, Education,
and Welfare appropriation bill. Proceedings were as follows:
---------------------------------------------------------------------------
1. 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.
Mr. [Silvio O.] Conte [of Massachusetts]: Mr. Chairman, I raise
the point of order on section 409 on page 56 of the bill that this
is legislation on an appropriation bill. It violates section 834 of
the House rules. It does not comply with the Holman rule. It is not
a retrenchment. In fact, it adds additional burdens and additional
duties, just as the Chair ruled against my amendment to section 408
because it would require additional personnel to determine whether
busing has been used, one, for the abolishing of any school and,
two, to require the attendance of any student at any particular
school. . . .
The Chairman: (2) The Chair is ready to rule. . . .
---------------------------------------------------------------------------
2. Chet Holifield (Calif.).
---------------------------------------------------------------------------
Now, the gentleman from Massachusetts (Mr. Conte) has raised a
point of order against section 409 on the ground that it
constitutes legislation on an appropriation bill. The gentleman
from Mississippi (Mr. Whitten) insists that the language is in
order as a limitation.
The Chair has reviewed the section in question. It prohibits
the use of funds in this bill to force first, the busing of
students; second, the abolishment of any school; or third the
attendance of students at a particular school.
The clear intent of this section is to impose a negative
restriction on the use of the moneys contained in this bill.
[[Page 6043]]
The Chair has examined a decision in a situation similar to
that presented by the current amendment in the 86th Congress during
consideration of the Defense Department appropriation bill, an
amendment was offered by Mr. O'Hara, of Michigan, which provided .
. . (that) no funds appropriated in that bill should be used to pay
on a contract which was awarded to the higher of two bidders
because of certain Defense Department policies. The Chairman of the
Committee of the Whole, Mr. Keogh, of New York, held the amendment
in order as a limitation, even though it touched on the policy of
an executive department--86th Congress, May 5, 1960; Congressional
Record, volume 106, part 7, page 9641. Chairman Keogh quoted, in
his decision, the precedent carried in section 3968 of volume IV,
Hinds' Precedents, and the Chair thinks the headnote of that
earlier precedent is applicable here:
The House may provide that no part of an appropriation
shall be used in a certain way, even though executive
discretion be thereby negatively restricted.
The Chair overrules the point of order.
Requiring Discretionary Action To Be Eligible For Funds
Sec. 51.11 An amendment to a general appropriation bill, prohibiting
the use of funds in the bill for the Nuclear Regulatory Commission
to issue nuclear powerplant operating licenses in any state which
does not have an emergency evacuation plan which has been tested
and submitted to the Commission pursuant to law, was ruled out as
legislation since requiring the Commission to make the
determination, not required by law, whether the plan had been
tested by the state.
On June 18, 1979,(3) during consideration in the
Committee of the Whole of the energy and water appropriation bill (H.R.
4399), a point of order against an amendment was sustained as follows:
---------------------------------------------------------------------------
3. 125 Cong. Rec. 15286, 15287, 96th Cong. 1st Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
Amendment offered by Mr. [James] Weaver [of Oregon]: On
page 27 after line 23, add:
``No monies appropriated in this paragraph may be expended
by the Nuclear Regulatory Commission for the issuance of an
operating license for a nuclear powerplant located in a state
which does not have an emergency evacuation plan which has been
tested, and submitted to the Commission pursuant to law.''. . .
Mr. [John T.] Myers of Indiana: Mr. Chairman, the proposed
amendment offered by the gentleman from Oregon (Mr. Weaver) is a
violation of rule XXI, clause 2. The requirement that a State must
adopt and issue an evacuation plan I think is suspect, but the
words ``which has been tested'' clearly make it a violation of rule
XXI, clause 2, in that it is clearly legislation on an
appropriation bill. It requires a duty not now required by law.
[[Page 6044]]
I cite the precedents from Deschler's Procedure, chapter 26,
11.3, which reads:
It is not in order, in an appropriation bill, to impose
additional duties on an executive officer or to make the
appropriation contingent on the performance of such duties. May
28, 1968 . . . where, to a bill making appropriations for the
Department of State, including an item for the U.S.
contribution to various international organizations, an
amendment providing that none of the funds might be expended
until all other members of such organizations have met their
financial obligations, was ruled out as legislation which
imposed a duty on a Federal official to determine the extent of
such obligations.
In the same chapter, paragraph 11.24:
To a bill making supplemental appropriations to various
agencies, including an additional amount for assistance to
refugees in the United States, an amendment specifying that no
part of this particular appropriation shall be used until
adequate screening procedures are established to prohibit the
infiltration of communists posing as Cuban refugees, imposed
additional duties and was ruled out as legislation.
I think that chapter 18.1 is probably more in point of issue.
This was a foreign aid program.
To a general appropriation bill making appropriations for
foreign assistance, an amendment prohibiting the use of any
funds carried in the bill for certain capital projects costing
in excess of $1 million `until the head of the agency involved
has received and considered a report, prepared by officials
within the agency, on the justification and feasibility of such
project' was held to impose additional duties and was ruled out
as legislation.
Mr. Chairman, it is very clear in the rules where an amendment
to language in a general appropriations bill implicitly places new
duties on officers of the Government or implicitly requires them to
make investigations, compile evidence, or make judgments and
determinations not required of them by law, such as a judge, was
conceded to be legislation and subject to a point of order.
Mr. Chairman, this clearly places some responsibility of
testing on someone, rather vague, but not now required by law, who
is to conduct the test, how it is to be conducted, and what
criterion. There is no evidence of any so-called laws or rules
today. It is clearly a violation of rule XXI, clause 2. . . .
Mr. Weaver: . . . The amendment reads very factually, and it
reads pursuant to law. It makes no new law, Mr. Chairman.
As a matter of fact, the law is already there in the Atomic
Energy Act, chapter 10, atomic energy licenses, and under section
103 (a) and (b), it gives the Nuclear Regulatory Commission
complete authority for the public health and safety to do the kind
of licensing that is now being done.
What the amendment does is not like the examples shown by the
gentleman from Indiana (Mr. Myers), such as screening or imposing
new duties on any Government, any Federal Government official at
all. It simply says that if a plant has an emergency evacuation
plan that has been tested and submitted to the NRC, pursuant to
law; it imposes no new duties on the Federal official. It does not
require them to go out implicitly or explicitly and make
[[Page 6045]]
any investigation of any kind, and just simply go on doing the
duties they have been doing under the law that they now act upon.
So it is the normal course of duty.
It just simply says that no new operating license will be
granted a plant if this factual situation has not been
met. . . .
The Chairman: (4) . . . The Chair has examined the
law with respect to the authority of the NRC to request submission
of State emergency evacuation plans, in determining whether to
issue an operating license. Under 42 U.S.C. 2133 and 2137, the NRC
has virtually total discretionary authority to request or require
the submission of any information by a prospective licensee which
relates to the public health and safety aspects of the operation of
nuclear power plants in any State.
---------------------------------------------------------------------------
4. Philip R. Sharp (Ind.).
---------------------------------------------------------------------------
The language of the amendment, however, imposes additional
duties on the NRC to determine if a State plan has been tested by
the State.
Consequently, the amendment constitutes legislation on an
appropriation bill, and the point of order made by the gentleman
from Indiana (Mr. Myers) is sustained.
Affirmative Interference With Discretion
Sec. 51.12 It is not in order in a general appropriation bill under the
guise of a limitation to affirmatively interfere with executive
discretion by coupling a restriction on the payment of funds for
salaries with a positive direction to perform certain duties in a
particular manner.
On Oct. 9, 1974,(5) paragraph of a general appropriation
bill prohibiting the payment of funds therein for salaries of Federal
Trade Commission personnel who use, publish, or permit access to
certain information by designated methods--and also requiring the FTC
to obtain that information ``under existing practices and procedure or
as changed by law'' was conceded to change existing law by restricting
the information-gathering practices of the agency and was ruled out in
violation of Rule XXI clause 2. The proceedings were as follows:
---------------------------------------------------------------------------
5. 120 Cong. Rec. 34712, 34713, 93d Cong. 2d Sess.
---------------------------------------------------------------------------
The Chairman:(6) The Clerk will read.
---------------------------------------------------------------------------
6. Sam Gibbons (Fla.).
---------------------------------------------------------------------------
The Clerk read as follows:
federal trade commission
No part of these funds may be used to pay the salary of any
employee, including Commissioners, of the Federal Trade
Commission who--
(1) Uses the information provided in the line-of-business
program for any purpose other than statistical purposes. Such
information for carrying out specific law enforcement
responsibilities of the Federal Trade Commission shall be
obtained under
[[Page 6046]]
existing practices and procedures or as changed by law. . . .
Mr. [Bob] Eckhardt [of Texas]: Mr. Chairman, I make a point of
order on the paragraph last read, commencing on page 46, line 17,
through page 47, line 6. . . .
The specific language that violates [Rule XXI clause 2] is the
language contained in the last sentence on page 46, reading as
follows:
Such information for carrying out specific law enforcement
responsibilities of the Federal Trade Commission shall be
obtained under existing practices and procedures or as changed
by law.
Mr. Chairman, rule XXI, under all of the precedents, clearly
outlaws a change in substantive law, that is, it clearly outlaws a
provision by which an administrator of an agency may after the
passage of that clause not do an act which he could have done
before.
This clause says that persons in the Federal Trade Commission
shall not alter the existing practices with respect to such
gathering of information for law enforcement practices.
Today that agency might do anything it wants to do within the
balance of law and it is not bound to continue its existing
practices. It can obtain information in other ways. If this
provision were passed, it would restrict it in that respect.
In this connection, I cite in support of the position I take
the provisions of Cannon's Precedents, volume 7, section 1685:
A limitation to be admissible must be a limitation upon the
appropriation and not an affirmative limitation upon official
discretion.
Following that, in section 1686, it says:
A limitation upon an appropriation must not be accompanied
by provisions requiring affirmative action by an Executive in
order to render the appropriation available.
Therefore, under these provisions, the administrator would be
bound and confined to his existing practices, whereas presently he
might exercise any rational means of gaining such information that
is permitted by law. . . .
Mr. [John D.] Dingell [of Michigan]: Rule XXI, clause 2, is
well known, I am sure, to the Chair.
Rule XXI, clause 2, forbids legislation in appropriation bills.
The gentleman from Texas has just cited the specific paragraphs
and citations in Cannon's Precedents.
The question is, Is the language referred to by the gentleman
from Texas, referring most specifically to page 46, lines 22 and
following, reading as follows:
Such information for carrying out specific law enforcement
responsibilities of the Federal Trade Commission shall be
obtained under existing practices and procedures or as changed
by law--
A limitation? . . .
A clear reading of the language before the committee at this
particular time that ``Such information for carrying out specific
law enforcement responsibilities shall be obtained under existing
practices'' is not a limitation, but, rather, is an express
direction to the Federal Trade Commission as to how that agency
shall conduct its affairs. It does not limit discretion, but,
[[Page 6047]]
rather, it imposes certain specific duties upon the Federal Trade
Commission.
The language further offends against the law, Mr. Chairman, in
that it does require certain other affirmative duties and actions
by the Federal Trade Commission. Most specifically, Mr. Chairman,
it requires that the Federal Trade Commission engage in an
ascertainment of what is the existing law and that they then
proceed to act in accordance therewith.
This does not constitute a limitation, but, rather, constitutes
an affirmative mandate. . . .
Mr. [Jamie L.] Whitten [of Mississippi]: Mr. Chairman, I
concede the point of order, and I will offer an amendment.
The Chairman: The point of order is conceded, and sustained,
and the language beginning on line 17, page 46, and continuing
through line 6, page 47, is stricken by the point of order.
Limitation of Funds Resulting in Curtailed Discretion
Sec. 51.13 While it is not in order on a general appropriation bill to
directly limit executive discretionary authority or to change
entitlement benefits or contractual provisions established pursuant
to law, it is permissible by a negative restriction on the use of
funds to deny availability of funds although resulting
circumstances might suggest a change in applicability of law.
On Aug. 20, 1980,(7) the Chair ruled that an amendment
to a general appropriation bill denying the use of funds therein to pay
for an abortion, or administrative expenses in connection with any
federal employees health benefits plan which provides any benefits or
coverage for abortions after the last day of contracts currently in
force, did not constitute legislation, since the amendment did not
directly interfere with executive discretion in contracting to
establish such plans. (It is permissible by limitation to negatively
deny the availability of funds although discretionary authority may be
indirectly curtailed and contracts may be left unsatisfied.) The
proceedings are discussed in Sec. 74.5, infra. For general discussion
of permissible limitations, see Sec. 64, infra.
---------------------------------------------------------------------------
7. 126 Cong. Rec. 22171, 22172, 96th Cong. 2d Sess.
---------------------------------------------------------------------------
Sec. 51.14 To language in an appropriation bill containing funds for
the Federal Trade Commission for the purpose of collecting line-of-
business data, an amendment providing that none of those funds
shall be used for collecting such data from more than 250 firms was
held to constitute a valid limitation
[[Page 6048]]
on the availability of funds in the bill, rather than an express
restriction on the scope of the FTC investigation.
On June 21, 1974,(8) during consideration in the
Committee of the Whole of H.R. 15472 (agriculture, environment, and
consumer appropriation bill), an amendment was held in order as
follows:
---------------------------------------------------------------------------
8. 120 Cong. Rec. 20601, 20602, 93d Cong. 2d Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
Amendment offered by Mr. [Jamie L.] Whitten [of
Mississippi]: Page 47, line 6, after the word ``data'' add the
following: ``Provided, That none of these funds shall be used
for collecting line-of-business data from not [sic] more than
250 firms, including data presently made available to the
Bureau of the Census, the Securities and Exchange Commission
and other government agencies where authorized by law.'' . . .
Mr. [Bob] Eckhardt [of Texas]: Mr. Chairman, the point of order
is under House Rule XXI, Clause 2, second sentence. . . .
Now, under existing law and without the limitations reported to
be added in this bill the Federal Trade Commission could and had
intended--and, of course, what it actually intended is not material
here, because the question is what it could have done--it could
have used the funds as appropriated here for either 250 firms or
500 firms or any other number of firms. So what is done by this
amendment is to restrict the Federal Trade Commission with respect
to powers and duties and authorities which it would have but for
this limitation.
The authorities on this point appear in volume VII of Cannon's
Precedents, section 1675, which reads:
A proper limitation does not interfere with executive
discretion or require affirmative action on the part of the
Government officials. . . .
It would also require liaison with the Bureau of Census, the
Securities and Exchange Commission, and other Government agencies
which are not here designated but which would cover the whole gamut
of such agencies.
So it both provides a limitation on executive discretion and
affirmative acts on the part of Government officials. . . .
Mr. [John] Melcher [of Montana]:
. . . Public Law 93-153 authorizes line-of-business data to be
collected by independent regulatory agencies subject to certain
procedures. It did not limit or restrict the collection of this
data to any specific number of firms, as the gentleman's amendment
would; he would change this policy by arbitrarily limiting the
collection of the data specifically to 250 firms.
In addition, Mr. Chairman, Public Law 93-153 does not authorize
the collection of line-of-business data from the Bureau of the
Census of the Security and Exchange Commission. This authority was
placed in an ``independent regulatory agency.''. . .
The Chairman: (9) The Chair is ready to rule.
---------------------------------------------------------------------------
9. Sam Gibbons (Fla.).
---------------------------------------------------------------------------
First, let the Chair state that this subject contains a very
vexing point,
[[Page 6049]]
and it is one that has required a lot of attention of the Chair,
even prior to the arguments here.
The words in contest on this point of order are the following
words added by the amendment:
. . . provided that none of the funds shall be used for
collecting line-of-business data from not more than 250 firms,
including data presently made available by the Bureau of the
Census, the Securities and Exchange Commission, and other
government agencies where authorized by law.
It is clear to the Chair that the words ``provided that none of
these funds shall be used for collecting line of business data of
not more than 250 firms'' may clearly be added as an amendment to a
general appropriation bill, and it is in order. The Committee on
Appropriations could have refused to bring in any appropriation at
all for this agency, and the committee seeks by this amendment to
put a limitation upon the use of funds available to the FTC. The
limitation is drafted as a restriction on the use of funds, and not
as an affirmative restriction on the scope of the FTC
investigation, as was the case in the language stricken from the
bill on the preceding point of order.
The remainder of the amendment raises some question, but in the
opinion of the Chair, these words are clearly limited by ``where
authorized by law,' and do not permit the Census Bureau of the SEC
to initiate line of business investigations, so the Chair is going
to rule that the amendment is in order and that the points of order
are overruled.
Limitation on Funds May Change Announced Policy
Sec. 51.15 While a limitation on a general appropriation bill may not
involve changes of existing law or affirmatively restrict executive
discretion, it may by a simple denial of the use of funds change
administrative policy and be in order; thus, a point of order
against a provision prohibiting the use of funds for any reduction
in Customs Service regions or for any consolidation of Customs
Service offices was overruled.
On June 27, 1984,(10) during consideration in the
Committee of the Whole of the Treasury Department and Postal Service
appropriation bill (H.R. 5798), a point of order against a provision in
the bill was overruled, as follows:
---------------------------------------------------------------------------
10. 130 Cong. Rec. ---- , 98th Cong. 2d Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
Sec. 617. None of the funds made available in this Act may
be used to plan, implement, or administer (1) any reduction in
the number of regions, districts or entry processing locations
of the United States Customs Service; or (2) any consolidation
or centralization of duty assessment or appraisement functions
of any offices of the United States Customs Service.
Mr. [Bill] Frenzel [of Minnesota]: Mr. Chairman, I make a point
of order
[[Page 6050]]
against section 617. . . . Section 617 prohibits the use of funds
in this appropriation for a reduction in the number of Customs
entry processing points and any consolidation of duty assessment or
appraisement functions in any of the offices of the Customs
Service.
This negates Public Law 91-271 which gives the President the
authority to rearrange or make consolidations at points of entry at
the District Offices or at headquarters.
In addition, in my judgment the language is so broad as to
interfere with existing administrative authority to carry out its
appraisement functions as required by law. Section 617 goes beyond
the limitation of funds which are the subject of this appropriation
and constitutes an effort to change existing law under the guise of
a limitation. There seems to be in section 617 almost a complete
prohibition of executive discretion to make any changes to help the
Customs Service carry out its duties. . . .
Mr. [Edward R.] Roybal [of California]: Mr. Chairman, section
617 is a simple limitation again on an appropriation bill. It does
not change the application of existing law. It merely prohibits the
use of funds to pay for any Government employee who tries to
prevent the law from being enforced. . . .
The Chairman: (11) The Chair is prepared to rule.
---------------------------------------------------------------------------
11. Anthony C. Beilenson (Calif.).
---------------------------------------------------------------------------
It is the opinion of the Chair that the section does not
mandate spending but rather limits the use of funds to consolidate
Customs regions and is as such a negative limitation on the use of
funds. And the Chair would cite Mr. Cannons volume 7 of Precedents,
section 1694:
While a limitation may not involve change of existing law
or affirmatively restrict executive discretion, it may properly
effect a change of administrative policy and still be in
order.(12)
---------------------------------------------------------------------------
12. 7 Cannon's Precedents Sec. 1694 is discussed in the introduction to
this section (Sec. 51), supra.
---------------------------------------------------------------------------
Therefore it is the ruling of the Chair that the gentleman's
point of order is overruled.
Parliamentarian's Note: This precedent must be distinguished from
cases where an amendment, by double negative or otherwise, can be
interpreted to require the spending of more money--for example, an
amendment prohibiting the use of funds to keep less than a certain
number of people employed. (A ``floor'' on employment levels would be
tantamount to an affirmative direction to hire no fewer than a
specified number of employees.)
Limiting Funds to Promulgate Regulations
Sec. 51.16 While an agency may have authority to promulgate new
regulations which would change existing regulations, it is in order
in a general appropriation bill to deny the use of funds therein
for agency proceedings relating to changes in regulations.
[[Page 6051]]
The ruling of the Chair on June 27, 1984,(13) was that
language in a general appropriation bill prohibiting the use of funds
therein to eliminate an existing legal requirement for sureties on
customs bonds was in order as a valid limitation merely denying funds
to change existing law and regulations. The point of order was as
follows:
---------------------------------------------------------------------------
13. 130 Cong. Rec.---- , 98th Cong. 2d Sess.
---------------------------------------------------------------------------
Mr. [Bill] Frenzel [of Minnesota]: Mr. Chairman, I make a point
of order against section 513 on page 38.
The portion of the bill to which the point of order relates is
as follows:
Sec. 513. None of the funds made available by this Act for
the Department of Treasury may be used for the purpose of
eliminating any existing requirement for sureties on customs
bonds. . . .
[This provision] violates rule XXI, clause 2. The section
prohibits the use of funds for the continuation of customs
rulemaking with respect to existing requirements for sureties on
customs bonds.
The Customs Service has broad administrative authority to
establish guidelines for posting bonds for the payment of customs
duties.
The rulemaking process is now underway to determine whether
existing requirements for sureties on customs bonds should be
modified or replaced altogether.
Section 513 goes beyond the limitations of funds which are the
subject of this appropriation and constitutes an effort to change
existing law under the guise of a limitation. . . .
The Chairman: (14) The Chair is ready to rule. . . .
---------------------------------------------------------------------------
14. Anthony C. Beilenson (Calif.).
---------------------------------------------------------------------------
The Chair would rule that in fact this section does constitute
a proper limitation consistent with the existing law and overrules
the gentleman's point of order.
Limiting Funds to Administer Program
Sec. 51.17 A section in a general appropriation bill prohibiting the
use of any funds therein by the Environmental Protection Agency
``to administer any program to tax, limit, or otherwise regulate
parking facilities'' was held in order as a negative limitation on
the use of funds in the bill.
The ruling on Oct. 9, 1974,(15) supports the principle
that, although language in a general appropriation bill may not by its
terms directly curtail a discretionary authority conferred by law, the
Committee on Appropriations may, by refusing to recommend funds for all
or part of an authorized executive function, thereby effect a change in
policy to the extent of its denial of avail
[[Page 6052]]
ability of funds.(16) The proceedings were as follows:
---------------------------------------------------------------------------
15. 120 Cong. Rec. 34716, 34717, 93d Cong. 2d Sess.
16. See 7 Cannon's Precedents Sec. 1694, discussed in the introduction
to this section (Sec. 51), supra.
---------------------------------------------------------------------------
The Clerk read as follows:
Sec. 511. No part of any funds appropriated under this Act
may be used by the Environmental Protection Agency to
administer any program to tax, limit, or otherwise regulate
parking facilities. . . .
Mr. [Fortney H.] Stark [of California]: I make a point of order
in opposition to the section the Clerk has just read, section 511,
line 17.
The point of order is that under rule XXI, clause 2, it is
legislation under an appropriation bill. It changes existing law
and is not merely a limitation under the appropriation.
I cite Cannon's Precedents, volume 7, section 1691:
(17)
---------------------------------------------------------------------------
17. 7 Cannon's Precedents Sec. 1691 is discussed in the introduction to
this section (Sec. 51), supra.
---------------------------------------------------------------------------
The purpose rather than the form of a proposed limitation
is the proper criterion by which its admissibility should be
judged, and if its purpose appears to be a restriction of
executive discretion to a degree that may be fairly termed a
change in policy rather than a matter of administrative detail
it is not in order. . . .
The committee report on H.R. 16901 indicates that the intent of
section 511 is to make new law, not to ``retrench expenditures.''.
. .
What is intended is a direct limitation on the exercise of
administrative authority, not a limitation on appropriations. The
report does not state any intent to save money. It does not state
how much money, if any, would be saved. Nor does it explain how
this provision would in any way save money. The report's reference
to a substantive investigation of the effects of EPA regulations
confirms the view that section 511 is purely substantive lawmaking.
There is no pretense in the report that this provision is intended
to, or actually will have the effect of reducing appropriations or
saving any money. Its intent and effect is simply to repeal a
portion of the Clean Air Act. . . .
Mr. [John D.] Dingell [of Michigan]: Mr. Chairman . . . the
language referred to does constitute legislation in an
appropriation bill, and it is not a limitation upon appropriation
but an affirmative limitation upon official discretion, as referred
to in section 1685 and also in sections 1684 and 1683 of Cannon's
Precedents, referred to by me earlier in the discussion as to
previous points of order raised by the gentleman from Texas (Mr.
Eckhardt) to earlier portions of the bill. . . .
The Chairman: (18) The Chair has examined the
language on page 51 of the bill, lines 17 through 20. The Chair
also has examined the arguments put forth by the gentleman from
California (Mr. Stark) who raised the point of order. The Chair has
examined the precedents. The Chair finds that this is merely a
limitation on an appropriation, and suggests that the Committee on
Appropriations could have refused to bring in any appropriation at
all for the Environmental Protection Agency. Therefore, negatively
denying their making funds available to EPA for
[[Page 6053]]
some purposes while availability for other purposes is certainly no
more than a limitation on the appropriation bill. This is an old,
established precedent of the House of Representatives.
---------------------------------------------------------------------------
18. Sam Gibbons (Fla.).
---------------------------------------------------------------------------
The Chair calls the attention of the Members to the language
appearing in Cannon's Precedents on page 686 of volume 7, section
1694, in which Mr. Tilson of Connecticut was in the Chair, and made
a very similar ruling ``that a change in policy can be made by the
failure of Congress to appropriate for an authorized project.''
Therefore the point of order is overruled.
Restriction Not on Funds But on Discretion
Sec. 51.18 While it is in order on a general appropriation bill to
limit the availability of funds therein for part of an authorized
purpose while appropriating for the remainder of it, language which
restricts not the funds but the discretionary authority of a
federal official administering those funds may be ruled out as
legislation (see 7 Cannon's Precedents Sec. 1673).
On June 21, 1974,(19) during consideration of H.R. 15472
(Agriculture Department, environment, and consumer appropriation bill),
a point of order was sustained against the following paragraph in the
bill:
---------------------------------------------------------------------------
19. 120 Cong. Rec. 20600, 93d Cong. 2d Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
$305,000, the amount of the budget request, is hereby
appropriated for the purpose of collecting line-of-business
data, as approved by General Accounting Office Opinion B-
180229, issued May 13, 1974, from not to exceed 250 firms,
including data presently made available to the Bureau of the
Census, the Securities and Exchange Commission and other
government agencies where authorized by law. . . .
Mr. [John] Melcher [of Montana]: Mr. Chairman, rule 21, clause
2, clearly provides that no appropriation bill shall contain any
provision changing existing law. The language on page 47, beginning
at the word ``data,'' on lines 8 through 12, clearly violates this
rule in that it significantly alters the effective provisions of
section 409(a) of Public Law 93-153--an act dealing with the trans-
Alaska oil pipeline.
The purpose of section 409(a) of Public Law 93-153 is to
preserve the independence of the regulatory agencies to carry out
the quasi-judicial functions which have been entrusted to them by
the Congress. We did not intend a broad proliferation of detailed
questionnaires to industry and businesses which would result in
unnecessary and unreasonable expense, but the provisions of H.R.
15472, which are the subject of my point of order, make substantive
changes and place arbitrary limitations on the procedures
prescribed by Public Law 93-153.
Mr. Chairman, as you know, in construing the provisions of an
appropriation bill, if the intent is to restrict executive
discretion to a degree that may be fairly termed a change in policy
rather than a matter of administrative detail, then the point of
order should be sustained. This provision of H.R.
[[Page 6054]]
15472 not only restricts executive discretion by its specific
terms, but it has the effect of changing existing law in violation
of rule 21, clause 2.
Mr. [Jamie L.] Whitten [of Mississippi]: Mr. Chairman, may I
now concede the point of order and offer my amendment?
The Chairman: (20) The gentleman concedes the point
of order.
---------------------------------------------------------------------------
20. Sam Gibbons (Fla.).
---------------------------------------------------------------------------
The point of order is sustained.
Double Negative Curtailing Discretion Requiring Affirmative Action
Sec. 51.19 Where existing law directed a federal official to provide
for the sale of certain government property to private
organizations in ``necessary'' amounts, but did not require that
all such property shall be distributed by sale, an amendment to a
general appropriation bill providing that no such property shall be
withheld from distribution from qualifying purchasers was ruled out
as legislation requiring disposal of all property and restricting
discretionary authority to determine ``necessary'' amounts and not
constituting (as required by the Holman rule) a certain
retrenchment of funds in the bill.
On Aug. 7, 1978,(1) during consideration in the
Committee of the Whole of the Department of Defense appropriation bill
(H.R. 13635), a point of order was sustained against the following
amendment:
---------------------------------------------------------------------------
1. 124 Cong. Rec. 24707, 24708, 95th Cong. 2d Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
Amendment offered by Mr. John T. Myers [of Indiana]: On
page 8, after line 10, add the following new section:
None of the funds appropriated or otherwise made available
in this Act shall be obligated or expended for salaries or
expenses during the current fiscal year in connection with the
demilitarization of any arms as advertised by the Department of
Defense, Defense Logistics Agency sale number 31-8118 issued
January 24, 1978, and listed as ``no longer needed by the
Federal Government'' and that such arms shall not be withheld
from distribution to purchasers who qualify for purchase of
said arms pursuant to title 10, United States Code, section
4308. . . .
Mr. [Abner J.] Mikva [of Illinois]: Mr. Chairman, I make a
point of order on the amendment on the ground that I believe that
it is legislation within a general appropriation bill and,
therefore, violates the rules of the House. . . .
Mr. John T. Myers: Mr. Chairman, this is a simple limitation
amendment. It merely limits the Secretary of the Treasury to
continue to carry out existing law. It does not provide any new
law. It simply says that the Secretary of the Treasury shall carry
out the prevailing, existing law. . . .
[[Page 6055]]
Mr. [John M.] Ashbrook [of Ohio]: Mr. Chairman, rule 21, clause
2, of the Rules of the House (House Rules and Manual pages 426-427)
specifies that an amendment to an appropriation bill is in order if
it meets certain tests, such as:
First. It must be germane;
Second. It must be negative in nature;
Third. It must show retrenchment on its face;
Fourth. It must impose no additional or affirmative duties or
amend existing law.
First. [The amendment] is germane. As the amendment applies to
the distribution of arms by the Defense Logistics Agency, it is not
exclusively an Army of civilian marksmanship amendment, so should
not be placed elsewhere in the bill. . . .
Second. It is negative in nature. It limits expenditure of
funds by the Defense Department by prohibiting the destruction and
scrapping of arms which qualify for sale through the civilian
marksmanship program, which is a division of the executive created
by statute.
Third. It shows retrenchment on its face. Retrenchment is
demonstrated in that the Department of Defense if prohibited from
expending funds to destroy surplus military arms, and that the arms
previously earmarked for destruction will be made available in
accordance with existing statute. . . . The House, in adding this
amendment, will secure additional funds for the Treasury which the
General Accounting Office has determined is adequate to pay costs
of handling the arms. For example, the M-1 rifles are to be sold at
a cost of $110 each. These are the arms most utilized by the
civilian marksmanship program. The Defense Department will not be
required to spend additional funds to process the sale of
additional arms. . . .
[The amendment] does not impose additional or affirmative
duties or amend existing law. . . .
Regulations issued AR 725-1 and AR 920-20 provide for the
issuance of arms by application and qualification through the
Director of Civilian Marksmanship. The DCM shall then submit sale
orders for the Armament Readiness Military Command (ARCOM) to fill
the requests of these qualified civilians. Thus, the amendment
simply requires the performance of duties already imposed by the
Army's own regulation. . . .
Mr. Mikva: Mr. Chairman, I particularly call attention of the
Chair to the second half of the amendment, which imposes an
affirmative duty on the Secretary, saying that such arms shall not
be withheld from distribution to purchasers who qualify for
purchase of said arms pursuant to title 10, United States Code,
section 4308.
Under the general existing law, there are all kinds of
discretions that are allowed to the Secretary to decide whether or
not such arms shall be distributed. Under this amendment, the
existing law is to be changed and those arms may not be withheld.
The practical purpose is to turn lose 400,000 to 500,000 rifles
into the body politic.
But the parliamentary effect is clearly to change the existing
law under which the Secretary can exercise all kinds of discretion
in deciding whether or not those arms will be distributed.
[[Page 6056]]
Under this amendment it not only limits the fact that the funds may
be obligated but it specifically goes on to affirmatively direct
the Secretary to distribute such arms under title X, which is an
affirmative obligation, which is exactly the kind of obligation the
rules prohibit, and I renew my point of order. . . .
The Chairman: (2) The Chair is ready to rule.
---------------------------------------------------------------------------
2. Daniel D. Rostenkowski (Ill.).
---------------------------------------------------------------------------
The Chair has read the section to which the gentleman refers,
title 10, United States Code, section 4308, and is of the opinion
that it does not require that all firearms be distributed to
qualified purchasers. The Chair further feels that while the first
part of the amendment is a limitation, the last part of the
amendment is a curtailment of Executive discretion, and the Chair
sustains the point of order.
Agency Required to Furnish Information to Subcommittees
Sec. 51.20 Where existing law (7 USC Sec. 12(e)) requires the
Commodities Exchange Commission to furnish to committees of
Congress upon request certain information relating to commodities
traders, an amendment to a general appropriation bill prohibiting
the use of funds therein for denial by that commission of requests
by congressional committees and subcommittees of any information
(including but not limited to that specifically required to be
furnished by law) was held to be legislation, being an interference
with the discretion of executive officials with respect to
responses to broader categories of requests.
On July 29, 1980,(3) an amendment to a general
appropriation bill prohibiting the use of funds for the Commodity
Futures Trading Commission to deny to congressional committees and
subcommittees, acting within their jurisdiction, any information and
data, including that described in section 8 of the Commodity Exchange
Act, requested by such committees or subcommittees, was held to be
legislation, since section 8 of that act only required certain
specified information to be submitted to full committees, and not to
subcommittees. The proceedings were as follows:
---------------------------------------------------------------------------
3. 126 Cong. Rec. 20098-100, 96th Cong. 2d Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
Amendment offered by Mr. [Benjamin S.] Rosenthal [of New
York]: On page 49, line 9, after the ``period'' add the
following:
``No part of the funds appropriated herein shall be used by
the Commission to deny to committees and subcommittees of the
House of Representatives or of the Senate, acting within the
scope of their jurisdiction,
[[Page 6057]]
any information and data in the Commission's possession
(including that described in section 8 of the Commodity
Exchange Act) requested by such committee or subcommittee.''
Mr. [Jamie L.] Whitten [of Mississippi]: Mr. Chairman, I
reserve a point of order against the amendment. . . .
The Chairman: (4) Does the gentleman from
Mississippi (Mr. Whitten) insist on his point of order?
---------------------------------------------------------------------------
4. James C. Corman (Calif.).
---------------------------------------------------------------------------
Mr. Whitten: I do insist on my point of order. . . .
Here is what the law says, if I may read it:
Upon the request of any committee of either House of
Congress, acting within the scope of its jurisdiction. . . .
So the law clearly says ``any committee.''
I turn to Webster's dictionary where it says that a
subcommittee is, by definition, ``an under committee,'' ``a part or
a division of a committee.''
So while the subcommittee may have a great desire, a great
need, to have the information, the law makes it available to the
committee, and a subcommittee frequently is--and even usually is--
greatly outnumbered by the full committee.
I respectfully submit that this provision would be subject to a
point of order because it gives authority that does not exist in
law or prohibits the use of that which is preempted by
law. . . .
Mr. Rosenthal: . . . I think, in practical terms, the position
espoused by the distinguished chairman of the committee would make
it totally unworkable for any investigative committee albeit any
subcommittee here in the Congress, to do its work.
What happens in the beginning in the Committee on Government
Operations, the committee meets and assigns general areas and
investigative jurisdiction to each of the subcommittees, covering
four, five, six or seven various agencies, and in those rules of
the Committee on Government Operations it invests the subcommittee
with the full authority that the House has given to the full
committee. . . .
Now, the statute clearly says, section 11:
The CFTC shall give to the committee all the information
they have.
So the only question, the narrowly defined question, is whether
the subcommittee is the repository of any statutory authority that
the full committee has.
Let me read to this body, and I really reluctantly burden my
colleagues with this, but I think it is relevant and important to
read what the court held in Barenblatt v. United States (240 F.2d
75, 1957): The U.S. Court of Appeals for the District of Columbia
decided that a witness' refusal to answer questions before a
subcommittee and pertinent to a subcommittee's investigation,
violated the title 2, United States Code, section 192, which
provides for criminal sanction against persons who, having been
summoned, ``refuse to answer questions before . . . any committee
of either House of Congress.''
We have the exact language--``before . . . any committee of
either House of Congress.''
[[Page 6058]]
A unanimous court held as follows:
It is also contended that the indictment is fatally
defective in that it alleges a refusal to answer questions
before a subcommittee of a committee, and that Congress did not
intend to make it a crime to refuse to answer questions of a
subcommittee. . . . We disagree. Nothing has been shown which
reflects that Congress has indicated such belief. We only
construe the statute in light of the obvious purpose for its
enactment. That purpose was to discourage the impairment of the
vital investigative function of Congress. The function Congress
sought to protect is as often committed to subcommittees as it
is to full committees of Congress, as indeed it must be.
Construing the statute in a manner consistent with its obvious
purpose . . . we hold that Congress intended the word
``committee'' in its generic sense, which would include
subcommittees.
There are dozens of decisions along the very same lines. . . .
The Chairman: The Chair believes [that the point of order is
correct as to] the use of funds to deny submission of information
to the subcommittee, but more importantly that the information to
be submitted in the amendment is much broader than the information
defined in the statute 7 U.S.C. section 12(e). The point of order
is sustained.
Sec. 51.21 Where existing law (7 USC Sec. 12(e)) requires an agency to
furnish certain information to congressional committees upon
request, it is not in order on a general appropriation bill to make
funds for that agency contingent upon its furnishing information
upon request to subcommittees.
On July 30, 1980,(5) an amendment to a general
appropriation bill prohibiting the use of funds for the Commodity
Futures Trading Commission to deny congressional subcommittees, acting
at the direction and as an agent of the full committee, certain
information required by the Commodity Exchange Act to be submitted to a
congressional committee upon request, was held to be legislation, in
the absence of a conclusive showing by the proponent of the amendment
that changing the specific language of the Commodity Exchange Act
requirement to cover requests by subcommittees as well as committees,
did not change existing law. The proceedings were as follows:
---------------------------------------------------------------------------
5. 126 Cong. Rec. 20475, 20476, 96th Cong. 2d Sess.
---------------------------------------------------------------------------
Amendment offered by Mr. [Benjamin S.] Rosenthal [of New York]:
On page 49, line 9, after the ``period'' add the following:
``No part of the funds appropriated herein shall be used by the
Commission to deny to subcommittees of the House of Representatives
or of the Senate, acting at the direction of and as an agent of a
full committee, any information in the possession of the Commission
relating to the amount of
[[Page 6059]]
commodities purchased or sold by such trader as provided by Sec.
8(e) of the Commodity Exchange Act to be made available to any
committee of either House of Congress acting within the scope of
its jurisdiction.''. . .
Mr. [Thomas S.] Foley [of Washington]: . . . I make a point of
order against the amendment in that it constitutes legislation on
an appropriations bill. The amendment of the gentleman from New
York does not track the statute which sets out specific conditions
under which information may be required of the Commodity Futures
Trade Commission.
Mr. Chairman, the Commission is authorized to release
information to any judicial body or congressional committee and is
required to do so only at the request of a committee of the House
of Representatives or the Senate. What the gentleman from New York
seeks to do is to substitute an additional requirement that, when
acting at the direction and as an agent of the committee, a
subcommittee may request such information.
Mr. Chairman, all subcommittees act at the direction of and as
agents of full committees or they do not act properly because they
are creatures of full committees. This in fact does not change the
situation that a subcommittee is a subcommittee and not a full
committee. It requires an additional limitation on an appropriation
other than a limitation of funds and constitutes a violation of the
rule against legislation on appropriation bill. . . .
Mr. Rosenthal: . . .
Mr. Chairman, I respectfully would like to bring to the
attention of the Chair page 342 of Deschler's Procedures, section
10.9:
While it is not in order in an appropriation bill, under
the guise of a limitation, to impose additional burdens and
duties on an executive of the federal government, amendments
requiring the recipients of funds carried in the bill to be in
compliance [with] existing law have been permitted, on the
theory that the concerned federal officials are already under
an obligation to oversee the enforcement of existing law and
are thus burdened by no additional duties by the amendment. . .
.
Additionally section 10.13 reads as follows:
An amendment prohibiting the payment of expenses from funds
in an appropriation bill, and containing language descriptive
of the persons to whom the restriction applied, was held in
order as a limitation on the use of funds in that bill which
did not directly impose affirmative duties upon executive
officials. 120 Cong. Rec. 21046, 93d Cong., 2d Sess., June 25,
1974 (H.R. 15544, Treasury, Postal Service, and executive
office appropriations, fiscal 1975), where an amendment
providing that ``no funds shall be expended for persons during
periods of their refusal to comply with valid congressional
subpenas was held in order as a valid limitation which did not
directly require executive officials to make determinations as
to the validity of those subpenas. . . .
The Chairman: (6) The Chair is ready to rule.
---------------------------------------------------------------------------
6. James C. Corman (Calif.).
---------------------------------------------------------------------------
The Chair is confronted with the language of a specific
statute, and the fact that the amendment deviates from the statute
must have some effect, it would be assumed to expand the terms of
the law absent a conclusive showing to the contrary and therefore
it would be leg
[[Page 6060]]
islation on an appropriation bill, and the point of order is
sustained.
Postal Rate Commission's Authority to Establish Rates; Interference
With Discretion
Sec. 51.22 To a general appropriation bill containing funds for the
postal service, an amendment to prohibit funds therein from being
used to handle parcel post at less than attributable cost was ruled
out as in violation of Rule XXI clause 2, when the proponent of the
amendment failed to refute the point of order that its effect would
directly interfere with the Postal Rate Commission's quasi-
discretionary authority (contained in 39 USC Sec. 3622, et seq.) to
establish postal rates under guidelines in law.
On July 17, 1975,(7) during consideration in the
Committee of the Whole of H.R. 8597 (Treasury Department, Postal
Service, and general government appropriation bill), a point of order
was sustained against the following amendment:
---------------------------------------------------------------------------
7. 121 Cong. Rec. 23239, 94th Cong. 1st Sess.
---------------------------------------------------------------------------
Mrs. [Millicent] Fenwick [of New Jersey]: Mr. Chairman, I offer
an amendment.
The Clerk read as follows:
Amendment offered by Mrs. Fenwick: Add a new section 613 on
page 45, line 21: ``None of the funds appropriated under this
Act shall be available to permit Parcel Post to be handled at
less than its attributable cost.''. . .
Mr. [Tom] Steed [of Oklahoma]: I insist on my point of order,
Mr. Chairman. This amendment would have the effect of changing
existing law. The Congress enacted the Postal Service Corporation
bill and created the Rate Commission and delegated to the Rate
Commission the sole and final authority on all postal rates. The
impact of this amendment would be to limit and change that postal
ratemaking power that is inherent in the law creating the Postal
Corporation.
If the amendment here is permitted to prevail then all sorts of
amendments affecting the operation of the Postal Service would be
applicable and the whole purpose of the Postal Service Corporation
law would be destroyed. So I think it is very imperative since this
does change the law and the powers invested in the Rate Commission
that we hold it is obviously legislation on an appropriation bill.
. . .
The Chairman: (8) Permit the Chair to direct a
question to the gentleman from Oklahoma.
---------------------------------------------------------------------------
8. B. F. Sisk (Calif.).
---------------------------------------------------------------------------
Is the gentleman's position such that in his opinion this
amounts to a change in law? Would the gentleman speak to that
point?
Mr. Steed: Yes. The sole authority to determine what will be
charged for parcel post, whether it is more or less than cost, is
vested in the Postal Rate
[[Page 6061]]
Commission and to accept this amendment here would limit that
authority which would change the law which vests that total power
in that Commission. So it would require an action on the part not
only of the ratemaking Commission but the Postmaster General in
that he does not now have to abide by this sort of demand.
The whole purpose of the corporation was to take the power to
do that sort of thing out of Congress and leave it in the Postal
Corporation for the postal rate commitment.
The Chairman: The Chair is prepared to rule. The gentleman from
Oklahoma makes a point of order against the amendment offered by
the gentlewoman from New Jersey dealing with the availability of
funds in connection with the matter of parcel post where the Postal
Service permits parcel post to be handled at less than attributable
costs.
The Chair feels that the point of order made by the gentleman
from Oklahoma to the effect that, in essence, this changes basic
law, must be sustained in light of the fact that the Chair does not
feel that the gentlewoman from New Jersey has made a sufficient
case that it would be otherwise.
Therefore, the Chair is constrained to sustain the point of
order.
Timing of Expenditures
Sec. 51.23 An amendment to a general appropriation bill, providing
that ``no amount in excess of 20 percent of any appropriation
contained in this Act for any agency for any fiscal year may be
obligated by such agency during the last two months of such fiscal
year'' was ruled out as legislation restricting a discretionary
authority conferred by law, since 31 USC Sec. 665(c)(3)
specifically confers discretionary authority on the Office of
Management and Budget to determine the time frame for distribution
of funds within the total period for which appropriated.
On June 25, 1980,(9) the Chair (10) applied
the principle that it is not in order on a general appropriation bill,
even by language in the form of a limitation, to restrict the
discretionary authority conferred by law to adminster expenditures
(rather than the use or amount of appropriated funds) including
discretion as to the percentage of the funds which may be apportioned
for expenditure within a certain period of time. The amendment, against
which a point of order was raised, stated:
---------------------------------------------------------------------------
9. 126 Cong. Rec. 16815-17, 96th Cong. 2d Sess. Under consideration
was H.R. 7590, energy and water development appropriations for
1981.
10. Philip R. Sharp (Ind.).
---------------------------------------------------------------------------
Amendment offered by Mr. [Herbert E.] Harris [II, of Virginia]:
Page 30, after line 12, insert the following:
Sec. 503. No amount in excess of 20 percent of any
appropriation contained in this Act for any agency for any fiscal
year may be obligated by such agency during the last two months of
such fiscal year. . . .
[[Page 6062]]
Mr. [John T.] Myers of Indiana: . . . Mr. Chairman, I make a
point of order against the amendment on the grounds that it would
be legislation on a general appropriations bill, and therefore
violates rule XXI, clause 2.
Although the amendment uses the words ``No amount,'' it is not
a limitation in the accepted sense, that is, a refusal by Congress
to appropriate for a specified purpose.
The effect of the amendment is a positive direction to the
Executive, which is not in order under the precedents.
In addition, Mr. Chairman, the gentleman's amendment is not in
order because the amendment proposes to change the application of
existing law and is therefore legislation in an appropriation bill
and is in violation of clause 2, rule XXI.
The gentleman's amendment provides that not more than 20
percent of the total appropriation made available for any agency
for any fiscal year under the act may be obligated during the last
2 months of such fiscal year. Section 665(c)(3) of title 31 of the
United States Code states the following:
(3) Any appropriation subject to apportionment shall be
distributed by months, calendar quarters, operating seasons, or
other time periods, or by activities, functions, projects, or
objects, or by a combination thereof, as may be deemed
appropriate by the officers designated in subsection (d) of
this section to make apportionments and reapportionments.
Except as otherwise specified by the officer making the
apportionment, amounts so apportioned shall remain available
for obligation, in accordance with the terms of the
appropriation, on a cumulative basis unless reapportioned.
The key phrase in this quote is:
Any appropriation subject to apportionment shall be
distributed . . . as may be deemed appropriate by the officers
designated in subsection (d) of this section to make
apportionments and reapportionments.
This phrase allows the agency budget officers discretionary
authority to apportion the appropriations received each year in a
manner that he deems appropriate considering the unique financial
requirements of his particular agency. The gentleman's amendment
deletes this discretionary authority by prohibiting him from
obligating more than 20 percent of his appropriations during the
last 2 months of the fiscal year. This obviously changes the
application of existing law and is in violation of the House rules.
Mr. Chairman, in chapter 26, section 1.8 of Deschler's Procedures,
the following is stated:
The provision of the rule forbidding in any general
appropriation bill a ``provision changing existing law'' is
construed to mean the enactment of law where none exists, or a
proposition for repeal of existing law. Existing law may be
repeated verbatim in an appropriation bill, but the slightest
change of the text causes it to be ruled out. . . .
Mr. Harris: . . . It is a fact that this amendment is a
limitation amendment. It is clear and it is not confusing. It is
like many other amendments that we have looked at before in this
House.
No amount in excess of 20 percent of any appropriation
contained in this Act for any agency for any fiscal year may be
obligated for such agen
[[Page 6063]]
cy during the last two months of such fiscal year.
Mr. Chairman, what we have to look to on a limitation bill is
the rules, and I would refer to chapter 25, section 10.6 of
Deschler, which states, with regard to H.R. 11612, in the 91st
Congress, 1st session:
An amendment to a general appropriation bill which is
strictly limited to funds appropriated in the bill, and which
is negative and restrictive in character and prohibits certain
uses of the funds, is in order as a limitation even though its
imposition will change the present distribution of funds and
require incidental duties on the part of those administering
the funds.
Clearly, that is precisely what this language does, and I rely
very strongly upon Deschler's, chapter 25, section 10.6. . . .
The Chairman: The Chair is ready to rule.
The gentleman from Indiana (Mr. Myers) makes the point of order
that the amendment offered by the gentleman from Virginia (Mr.
Harris) constitutes legislation on an appropriation bill in
violation of clause 2, rule XXI, by prohibiting the incurring of
obligations of any funds appropriated in the bill in excess of 20
percent of the total amount appropriated in the last 2 months of
availability of those funds.
The Chair has examined existing law (31 U.S.C. 665(c)(3)) with
respect to distribution of appropriations. The Chair interprets
this law to confer discretionary authority upon the Office of
Management and Budget, and thereby upon the agency incurring the
actual obligation, to determine the most appropriate time frame for
the distribution of funds within the period of availability for
which appropriated.
Under the precedents of the House cited on page 532 of the
House Rules and Manual, it is not in order on a general
appropriation bill to affirmatively take away a discretionary
authority conferred by law. Because the pending amendment could
conceivably restrict the specific authority conferred by existing
law upon contracting officers to incur obligations at the time
deemed most appropriate by them the Chair must sustain the point of
order.
Parliamentarian's Note: On July 28, 1980,(11) the Chair
made a comparable ruling on a similar amendment, but based the ruling
on a burden of proof test, upon a determination that the June 25, 1980,
ruling, in its characterization of the extent of discretionary
authority conferred upon recipient agencies by the statute, was
unnecessarily broad.
---------------------------------------------------------------------------
11. See Sec. 22.26, supra.
---------------------------------------------------------------------------
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. 52. Provisions as Imposing New Duties
This section discusses those issues raised when a purported
limitation either directly or indirectly requires a federal official to
perform duties which are arguably not required of him under the
existing laws pertaining to his office.(12)
---------------------------------------------------------------------------
12. As to the effect of provisions imposing additional duties on
persons who are not federal officials, see Sec. 53, infra.
---------------------------------------------------------------------------
[[Page 6064]]
Of course, the application of any limitation on an appropriation
bill places some minimal extra duties on federal officials, who, if
nothing else, must determine whether a particular use of funds falls
within that prohibited by the limitation. But when an amendment, while
curtailing certain uses of funds carried in the bill, explicitly places
new duties on officers of the government or implicitly requires them to
make investigations, compile evidence, or make judgments and
determinations not otherwise required of them by law, then it assumes
the character of legislation and is subject to a point of order.
In making a ruling on such issues, the Chair may be called upon to
interpret the responsibilities imposed upon federal officials by an
existing law to determine whether a purported limitation constitutes a
change in the law's requirements. The proponent of an amendment, or the
manager of the bill if a point of order is raised against the bill,
should be required to assume the burden of proving that duties being
imposed by the provision in question are merely ministerial or are
already required by law. In the absence of such a showing, the Chair
would not be required to determine for himself whether the proposed
duties were already required by existing law.(13)
---------------------------------------------------------------------------
13. See the discussion of the ruling of June 23, 1971, in the ``Note on
Contrary Rulings,'' which follows Sec. 53.6,
infra. -------------------
---------------------------------------------------------------------------
General Rule
Sec. 52.1 Language in an appropriation bill imposing duties upon an
executive not contemplated by law is legislation and not in order.
On May 17, 1937,(14) a provision in a general
appropriation bill that ``no part of this appropriation shall be
available for construction of such project until it is determined by
the Secretary of the Interior, upon approval, as to legality by the
Attorney General, that authorization therefor has been approved by act
of Congress,'' was ruled out as legislation. Points of order were made
as follows against such language which was contained in an Interior
Department appropriation bill (H.R. 6958):
---------------------------------------------------------------------------
14. 81 Cong. Rec. 4687, 4688, 75th Cong. 1st Sess.
---------------------------------------------------------------------------
Mr. [Frank H.] Buck [of California]: Mr. Chairman, I make a
point of order against the language beginning in line 24 with the
word ``Provided.''
Mr. [John] Taber [of New York]: Mr. Chairman, I make a point of
order against the entire paragraph.
The Chairman: (15) Does the gentleman from New York
make a point of order against the entire paragraph?
---------------------------------------------------------------------------
15. Jere Cooper (Tenn.).
---------------------------------------------------------------------------
[[Page 6065]]
Mr. Taber: I do.
The Chairman: The gentleman from California made a point of
order against the proviso?
Mr. Buck: Against the proviso.
The Chairman: The gentleman from California makes a point of
order against the proviso appearing in line 24, page 81. The
gentleman from New York (Mr. Taber) makes a point of order against
the entire paragraph. Of course, that presents to the Chair the
necessity of ruling upon the point of order as it relates to the
entire paragraph, because if any part of a paragraph is subject to
a point of order it naturally follows that the entire paragraph is
subject to a point of order. . . .
It appears to the Chair there can be no doubt that the language
appearing in the proviso is legislation on an appropriation bill.
The language imposes additional duties upon two executive officers
of the Government, the Secretary of the Interior and the Attorney
General. Therefore, the language in the proviso constituting
legislation on an appropriation bill, in violation of the rules of
the House, and a point of order being good as to part of a
paragraph, it naturally applies to the entire paragraph. The Chair,
therefore, sustains the point of order made by the gentleman from
New York as to the entire paragraph.
General Principles; Requiring Certification of Satisfaction as
Condition Precedent to Disbursement
Sec. 52.2 An amendment in the form of a limitation on an appropriation
bill providing an appropriation shall not be available until the
agency charged with the administration of such appropriation shall
be satisfied and shall so certify that no person employed upon the
work provided has been required as a condition precedent to
employment to join or not to join or to pay any sum to any
organization was held to be legislation and not in order in that it
imposed additional affirmative duties on the executive branch
(overruling 4 Hinds' Precedents Sec. 3942).
On May 14, 1941,(16) the Committee of the Whole was
considering H.R. 4590, an Interior Department appropriation bill. The
Clerk read as follows:
---------------------------------------------------------------------------
16. 87 Cong. Rec. 4053-55, 77th Cong. 1st Sess.
---------------------------------------------------------------------------
Amendment offered by Mr. [Clare E.] Hoffman [of Michigan]: On
page 87, after line 24, insert ``Provided, That no part of the
appropriation herein made shall be available until the agency
charged with the administration of the fund shall be satisfied, and
shall so certify to the Secretary of the Treasury, that no person
employed upon the work provided has been required as a condition
precedent to employment to join or not to join or to pay any sum to
any organization.''
Mr. [Frank E.] Hook [of Michigan]: Mr. Chairman, I make a point
of order against the amendment. It is legislation on an
appropriation bill.
[[Page 6066]]
The Chairman: (17) Does the gentleman from Michigan
desire to be heard on the point of order?
---------------------------------------------------------------------------
17. Jere Cooper (Tenn.).
---------------------------------------------------------------------------
Mr. Hoffman: No; the precedents sustain the amendment.
The Chairman: The Chair would be pleased to have the gentleman
from Michigan cite the precedents.
Mr. Hoffman: Fourth Hinds', section [3942]. I copied it from
that precedent. . . .
Mr. [John] Taber [of New York]: Mr. Chairman, if I may be
permitted, from what I have heard of the amendment, this seems to
be a pure limitation that no funds shall be permitted to be paid to
any person who is required as a condition precedent to employment
to do certain things. There is no additional duty in any way
imposed upon anyone and there is no legislation contained in the
limitation. . . .
The Chairman: The Chair is prepared to rule. . . .
The author of the amendment has cited as a precedent supporting
his contention that the amendment is in order, a decision appearing
in section 3942 of the fourth volume of Hinds' Precedents. The
Chair has examined that decision and is inclined to agree with the
gentleman from Michigan that there is some analogy between the
question under consideration here and the question under
consideration under that decision, but the Chair invites attention
to the fact that this decision was made in 1901. The Chair also
invites attention to a subsequent decision, on January 6, 1923,
which appears in section 1706 of volume 7 of Cannon's Precedents.
This is a rather lengthy decision, but it appears to the Chair to
be directly in point on the question here presented.
After citing numerous precedents, the Chairman of the Committee
of the Whole, Mr. Hicks, had the following to say:
As a general proposition the Chair feels that whenever a
limitation is accompanied by the words ``unless,'' ``except,''
``until,'' ``if,'' ``however,'' there is ground to view the so-
called limitation with suspicion, and in case of doubt as to
its ultimate effect the doubt should be resolved on the
conservative side. By doing so appropriation bills will be
relieved of much of the legislation which is being constantly
grafted upon them and a check given a practice which seems to
the Chair both unwise and in violation of the spirit, as well
as the substance, of our rules. Without endeavoring to lay down
any hard and fast rule, the Chair feels that the following
tests may be helpful in deciding a question of order directed
against a limitation, first having determined the powers
granted or the duties imposed by existing law:
Does the limitation apply solely to the appropriation under
consideration?
Does it operate beyond the fiscal year for which the
appropriation is made?
Is the limitation accompanied or coupled with a phrase
applying to official functions, and if so, does the phrase give
affirmative directions in fact or in effect, although not in
form?
Is it 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
[[Page 6067]]
conceded that legislation is involved, for without legislation
these results could not be accomplished.
If the limitation will not fairly stand these tests then in
my opinion the point of order should be sustained. Applying in
the present instance the standards set forth, the judgment of
the Chair is that the point of order is well taken and the
Chair sustains it.
The Chair invites attention to the fact that the pending
amendment provides--
That no part of the appropriation herein made shall be
available until the agency charged with the administration of
the fund shall be satisfied, and shall so certify to the
Secretary of the Treasury, that no person employed upon the
work provided has been required as a condition precedent to
employment to join or not to join or to pay any sum to any
organization.
The Chair is of opinion that this amendment would impose
additional duties upon the officials who would have to make the
certificate contemplated by the amendment. The Chair is likewise of
opinion the effect of this amendment would be to impose additional
duties upon the Secretary of the Treasury, at least to the extent
of requiring him to receive the certificate contemplated under the
amendment. Therefore, under the precedents cited by the Chair,
appearing in section 1706 of volume VII, Cannon's Precedents, the
Chair is of opinion that the amendment does embrace legislation on
an appropriation bill. The Chair, therefore, sustains the point of
order.
Parliamentarian's Note: The Chair in effect overruled the decision
in 4 Hinds' Precedents Sec. 3942 on the basis of the rationale
contained in the ruling in 7 Cannon's Precedents Sec. 1706 as
reiterated in the headnote. The Chair's ruling in 4 Hinds' Precedents
Sec. 3942 is clearly not supportable under the modern practice. See
also Sec. 51.6, supra. The well-reasoned statement of the doctrine of
limitations by Chairman Hicks, contained in 7 Cannon's Precedents
Sec. 1706, serves as an essential basis for determining the propriety
of amendments in the form of limitations.
Requiring a Hearing Before Making Determination
Sec. 52.3 During consideration of an appropriation for the Office of
Information of the Department of Agriculture, language providing
that transfers from other appropriations to this appropriation,
where authorized, should be adjusted as determined by the Bureau of
the Budget, whenever such other appropriations are found to vary
from the original budget estimates therefor, was ruled out as
legislation.
On Apr. 27, 1950,(18) during consideration in the
Committee of the Whole of a general appropriation
[[Page 6068]]
bill (H.R. 7786), a provision as described above was under
consideration. The following proceedings took place:
---------------------------------------------------------------------------
18. 96 Cong. Rec. 5914, 81st Cong. 2d Sess.
---------------------------------------------------------------------------
Mr. [Kenneth B.] Keating [of New York]: Mr. Chairman, I make a
point of order to the language appearing on page 207
(19) . . .
---------------------------------------------------------------------------
19. The language objected to stated: that if the total amounts of the
appropriations from which transfers to this appropriation are
herein authorized exceed or fall below the amounts estimated
therefor in the budget, the amounts transferred therefrom to
this appropriation shall be increased or decreased in such
amounts as the Bureau of the Budget, after a hearing thereon
with representatives of the Department, shall determine are
appropriate to the requirements.
---------------------------------------------------------------------------
. . . I make the point of order that these provisions require
additional duties upon the part of both the Secretary of
Agriculture and the Bureau of the Budget and constitute legislation
on an appropriation bill and are, therefore, subject to a point of
order.
The Chairman: (20) Does the gentleman from
Mississippi desire to be heard? . . .
---------------------------------------------------------------------------
20. Jere Cooper (Tenn.).
---------------------------------------------------------------------------
Mr. [Jamie L.] Whitten [of Mississippi]: . . . I am of the
opinion that the point of order should be sustained.
The Chairman: The Chair is prepared to rule. The gentleman from
New York [Mr. Keating] makes the point of order against the
language appearing on page 207 of the bill, which has been pointed
out by him, on the ground that it includes legislation on an
appropriation bill in violation of the rules of the House. The
gentleman from Mississippi concedes the point of order. The Chair
sustains the point of order.
Duty of Determining Rationale or Motive
Sec. 52.4 The application of any limitation on an appropriation bill
places some minimal extra duties on federal officials, who, if
nothing else, must determine whether a particular use of funds
falls within that prohibited by the limitation; but when an
amendment, while curtailing certain uses of funds carried in the
bill, explicitly places new duties on officers of the government or
inevitably requires them to make investigations, compile evidence,
discern the motives or intent of individuals, or make judgments and
determinations not otherwise required of them by law, then it
assumes the character of legislation and is subject to a point of
order.
On July 31, 1969,(1) the Committee of the Whole was
consid
[[Page 6069]]
ering H.R. 13111, a Departments of Labor, and Health, Education, and
Welfare appropriation bill. The Clerk read as follows:
---------------------------------------------------------------------------
1. 115 Cong. Rec. 21653, 21675, 91st Cong. 1st Sess.
Note: The principles stated in this precedent are difficult
to apply, of course, and some rulings may seem to have departed
from the strictest application thereof. Thus, as an example, in
one line of rulings, amendments were held in order which sought
to withhold payments under military or defense contracts in
situations in which work stoppages or strikes had impeded
performance of the contracts. (See 87 Cong. Rec. 4837, 4838,
4890, 4891, and 4901, 77th Cong. 1st Sess., rulings of June 6
and June 9, 1941; and 106 Cong. Rec. 12269, 12270, 86th Cong.
2d Sess., June 9, 1960.) Such rulings would probably not be
regarded as within the guidelines noted above for determining
whether proposed limitations are allowable under Rule XXI
clause 2.
---------------------------------------------------------------------------
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. . . .
Mr. [Silvio O.] Conte [of Massachusetts]: Mr. Chairman, I offer
amendments and I ask unanimous consent that the amendments be
considered en bloc.
The Chairman: (2) Is there objection to the request
of the gentleman from Massachusetts?
---------------------------------------------------------------------------
2. Chet Holifield (Calif.).
---------------------------------------------------------------------------
There was no objection.
The Clerk read as follows:
Amendments offered by Mr. Conte: 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.''
Mr. [Robert L. F.] Sikes [of Florida]: Mr. Chairman, I wish to
make a point of order against the amendment.
The Chairman: The Chair will hear the gentleman.
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
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. . . .
Mr. Conte: . . . Mr. Chairman, I do not see where these
amendments I
[[Page 6070]]
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. . . .
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.
Mr. Conte: Mr. Chairman, may I be heard for a minute?
Mr. [Joe D.] Waggonner [Jr., of Louisiana]: Mr. Chairman,
regular order.
The Chairman: The gentleman will please desist until the Chair
has finished his ruling on the second amendment because they are
being considered en bloc.
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: While the Chair was not asked to rule on
the sections of the bill being amended, requiring the determination of
whether a student was being bused ``against the choice of his parents
or parent'', that language might also have been construed as
legislation.
Receiving Information
Sec. 52.5 While it is not in order in an appropriation bill to insert
by way of amendment a proposition which places additional duties on
an executive officer, the mere requirement that the executive
officer be the recipient of information is not considered as
imposing upon him any additional burdens and is in order.
The ruling of June 11, 1968,(3) is discussed in the
``Note on Contrary Rulings,'' which follows Sec. 53.6, infra. One of
the issues also addressed in the proceedings of that day was the effect
of a seeming imposition of duties on private individuals or others not
[[Page 6071]]
in the employ of the federal government.
---------------------------------------------------------------------------
3. 114 Cong. Rec. 16712, 90th Cong. 2d Sess.
---------------------------------------------------------------------------
New Determinations
Sec. 52.6 An amendment to an appropriation bill proposing reduction of
expenditures through an apportionment procedure authorized by law,
but requiring such reduction to be made ``without impairing
national defense,'' was held to require the executive branch to
make new determinations and therefore to be out of order as
legislation.
On May 29, 1957,(4) during consideration in the
Committee of the Whole of the Defense Department appropriation bill
(H.R. 7665), amendments were offered as indicated below:
---------------------------------------------------------------------------
4. 103 Cong. Rec. 8069, 8070, 85th Cong. 1st Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
Amendment offered by [Gerald R.] Ford [of Michigan]: On
page 10, line 5, strike out ``$392 million'' and insert ``$400
million''. . .
The Clerk read as follows:
Amendment offered by Mr. [August E.] Johansen [of Michigan]
as a substitute for the amendment offered by Mr. Ford: On page
10, line 5, strike out ``$392 million'' and insert in lieu
thereof ``400 million'' and on page 10, line 6, immediately
before the period insert the following: ``Provided, That
appropriations made by this title shall, without impairing
national defense, be reduced in the amount of not less than $8
million through the apportionment procedure provided for in
section 3679 of the Revised Statutes of the United States (31
U.S.C. 665).''. . .
Mr. [George H.] Mahon [of Texas]: Mr. Chairman, I renew my
point of order that the gentleman's amendment is legislation on an
appropriation bill, also that it imposes additional duties.
The Chairman: (5) Does the gentleman from Michigan
[Mr. Johansen] desire to be heard?
---------------------------------------------------------------------------
5. Eugene J. Keogh (N.Y.).
---------------------------------------------------------------------------
Mr. Johansen: Mr. Chairman, may I say that in the appropriation
bill in the 81st Congress, second session, a provision, section
1214, to the effect that appropriations, reappropriations, contract
authorizations, and reauthorizations made by this act for
departments and agencies in the executive branch of the Government
shall without impairing national defense be reduced in an amount of
not less than $550 million.
It is on the basis of that sort of limitation that I offered
the amendment.
The Chairman: The Chair is ready to rule.
The gentleman from Michigan [Mr. Johansen] offers an amendment
in the nature of a substitute to the pending amendment, on page 10,
line 6, by adding language contained in the proviso of the
substitute. That language indicates that the appropriations made by
this title shall without impairing the national defense be reduced
in the amount of not less than $8 million through the apportionment
procedures provided for in another section of exist
[[Page 6072]]
ing law, which section vests authority in the executive branch to
make certain apportionments.
It is the opinion of the Chair that the language of this
proviso imposing, as it does, an obligation and requirement on the
executive branch to make reductions without impairing the national
defense and without establishing any standards therefor is
legislation on an appropriation bill, is subject to the point of
order, and the Chair sustains the point of order.
Duties Indirectly Resulting From Operation of Other Laws
Sec. 52.7 Language in an appropriation bill providing that none of the
funds therein shall be used to pay any employee of the Department
of Agriculture who serves as a member of the Board of Directors or
as an officer of the Commodity Credit Corporation was held to be a
negative limitation and in order although indirectly effecting a
change in policy.
On May 11, 1960,(6) the Committee of the Whole was
considering H.R. 12117, an Agriculture Department appropriation bill.
The Clerk read as follows:
---------------------------------------------------------------------------
6. 106 Cong. Rec. 10053, 10054, 86th Cong. 2d Sess.
---------------------------------------------------------------------------
Sec. 408. No part of the funds appropriated by this Act shall
be used to pay the compensation of any employee or officer of the
Department, except the Secretary of Agriculture, who, in addition
to other regularly assigned responsibilities, serves as a member of
the Board of Directors or as an officer of the Commodity Credit
Corporation after February 1, 1961.
Mr. [Paul] Brown of Georgia: Mr. Chairman, a point of order.
The Chairman: (7) The gentleman will state it.
---------------------------------------------------------------------------
7. Paul J. Kilday (Tex.).
---------------------------------------------------------------------------
Mr. Brown of Georgia: . . . This reverses a decision made by
the Banking and Currency Committee and the Congress in 1949, when
the CCC Charter Act was amended to strike out a similar restriction
which had been enacted in 1948. It is, therefore, legislation, and
the mere fact it is put in the form of a limitation on the use of
funds appropriated by the bill does not save it. As paragraph 1691,
volume 7, of Cannon's Precedents of the House of Representatives
puts it:
The purpose rather than the form of a proposed limitation
is the proper criterion by which its admissibility should be
judged, and if its purpose appears to be a restriction of
executive discretion to a degree that may be fairly termed a
change of policy rather than a matter of administrative detail
it is not in order.
Again in paragraph 1606 of the same volume, the following is
found:
Whenever a purported limitation makes unlawful that which
before was lawful or makes lawful that which before was
unlawful it changes existing law and is not in order on an
appropriation bill.
A proper limitation is negative and in the nature of a
veto, and when it
[[Page 6073]]
assumes affirmative form by direction to an executive in the
discharge of his duties under existing law it ceases to be a
limitation and becomes legislation.
Section 408 in effect requires the Secretary to take
affirmative action. To carry out the farm programs financed by CCC,
the Secretary would have to appoint new Board members, recruited
from private life, to replace the six Department officers other
than himself who now serve on the Board. He would also have to
recruit and appoint new personnel to serve as officers of the
Corporation. This not only means the section constitutes
legislation, but also means it is not entitled to the protection of
the Holman rule, because it would not save the Government money. On
the contrary, it would require hiring new employees at additional
expense to the Government. . . .
Mr. [Jamie L.] Whitten [of Mississippi]: Mr. Chairman, the
section clearly provides a limitation on the use of funds that are
appropriated in this bill. It does not change the Commodity Credit
Corporation charter. It does not change any basic law. It just
simply limits what the money in this bill can be used for. It has
been my experience and observation during the years here that the
Chair has many times said that it is a negative limitation on the
use of money and that it is clearly in order, and on that I rest
the committee's position.
The Chairman: The Chair is prepared to rule. . . .
The Chair has had an opportunity to examine the precedents in
this connection, including the precedents to which the gentleman
from Georgia has referred and from which he has read. The Chair
would also refer to paragraph 1694 of Cannon's Precedents, volume
7, the language being:
While a limitation may not involve change of existing law
or affirmatively restrict executive direction, it may properly
effect a change of administrative policy and still be in order.
The Chair has examined additional precedents bearing on this
question. The Chair is constrained to hold that section 408 is a
restriction on a manner in which the funds can be used, and
constitutes a negative limitation, and, therefore, overrules the
point of order.
Parliamentarian's Note: A discussion comparing the precedents cited
above, 7 Cannon's Precedents Sec. Sec. 1691 and 1694 can be found in
the introduction to Sec. 51, supra. An issue suggested by the debate on
May 11, 1960, is whether language in an appropriation bill should be
ruled out if it may lead prospectively or indirectly to the imposition
of duties on officials, by the operation of other laws. The ruling
suggests that only where the duties are imposed directly by the
language of the provision in question is it subject to a point of
order.
Discretionary Transfer of Funds
Sec. 52.8 Language in an appropriation bill making an appropriation for
specific ob
[[Page 6074]]
jects ``together with such amounts [transferred] from other
appropriations . . . as may be determined by the Secretary,'' was
conceded to be legislation on an appropriation bill and held not in
order.
On May 17, 1951,(8) during consideration in the
Committee of the Whole of the Agriculture Department appropriation bill
(H.R. 3973), a point of order was raised against the following
provision:
---------------------------------------------------------------------------
8. 97 Cong. Rec. 5468, 5469, 82d Cong. 1st Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
Office of Information
For necessary expenses in connection with the publication .
. . and distribution of bulletins, documents, and reports, the
preparation, distribution, and display of agricultural motion
and sound pictures . . . and the coordination of informational
work and programs authorized by Congress in the Department,
$1,271,000, together with such amounts from other
appropriations or authorizations as are provided in the
schedules in the budget for the current fiscal year for such
expenses, which several amounts or portions thereof, as may be
determined by the Secretary, not exceeding a total of $16,200,
shall be transferred to and made a part of this appropriation,
of which total appropriation amounts not exceeding those
specified may be used for the purposes enumerated as follows:
For preparation and display of exhibits, $104,725. . . .
Mr. [Kenneth B.] Keating [of New York]: Mr. Chairman, I make a
point of order against the language in lines 4 to 9, inclusive,
page 46, on the ground that it involves additional duties on the
part of the Secretary of Agriculture.
The Chairman:(9) Does the gentleman from Mississippi
care to be heard on the point of order?
---------------------------------------------------------------------------
9. Aime J. Forand (R.I.).
---------------------------------------------------------------------------
Mr. [Jamie L.] Whitten [of Mississippi]: Mr. Chairman, we
concede the point of order.
The Chairman: The point of order is sustained.
Requiring Annual Report
Sec. 52.9 Language in a general appropriation bill requiring that all
interchanges of appropriations made under the authority granted the
Commissioner of Indian Affairs ``shall be reported to Congress in
the annual Budget'' was held legislation on an appropriation bill
and not in order.
On Mar. 1, 1938,(10) the Committee of the Whole was
considering H.R. 9621, an Interior Department appropriation. At one
point the Clerk read as follows:
---------------------------------------------------------------------------
10. 83 Cong. Rec. 2651, 2652, 75th Cong. 3d Sess.
---------------------------------------------------------------------------
For administrative expenses, including personal services in the
District of Columbia and elsewhere; not to exceed $2,500 for
printing and binding; purchase of periodicals, directories, and
books of reference; purchase and oper
[[Page 6075]]
ation of motor-propelled passenger-carrying vehicles; traveling
expenses of employees; rent of office and storage space; telegraph
and telephone tools; and all other necessary expenses not
specifically authorized herein, $204,000; in all, $1,745,000, to be
immediately available and to remain available until June 30, 1940:
Provided further, That not to exceed 5 percent of the amount of any
specific authorization may be transferred, in the discretion of the
Commissioner of Indian Affairs, to the amount of any other specific
authorization, but no limitation shall be increased more than 10
percent by any such transfer. All interchanges under this
authorization shall be reported to Congress in the annual Budget.
Mr. [Robert F.] Rich [of Pennsylvania]: Mr. Chairman, I make
the point of order to the language beginning on page 68, line 23,
down to the end of the paragraph. It is legislation on an
appropriation bill. . . .
The Chairman:(11) The Chair is ready to rule.
---------------------------------------------------------------------------
11. Marvin Jones (Tex.).
---------------------------------------------------------------------------
The gentleman from Pennsylvania makes the point of order that
the proviso beginning in line 23 on page 68 provides an expenditure
not authorized by existing law. The particular language of this
proviso was the subject of a point of order last year as shown by
the Record of May 14, 1937, page 4603. The language is very clear
and specific and is exactly the same as the language carried in
last year's bill with the exception of the last sentence, which
reads:
All interchanges under this authorization shall be reported
to Congress in the annual Budget.
It seems to the Chair that the last sentence is clearly subject
to a point of order.
The Chair, therefore, sustains the point of order against the
proviso beginning in line 23 of page 68.
Sec. 52.10 Language in a general appropriation bill providing that a
statement of any transfer of appropriations made thereunder shall
be included in the annual budget was held to be legislation and not
in order on an appropriation bill.
On Apr. 23, 1937,(12) during consideration in the
Committee of the Whole of the Agriculture Department appropriation bill
(H.R. 6523), a point of order was raised against the following
provision:
---------------------------------------------------------------------------
12. 81 Cong. Rec. 3801, 3802, 75th Cong. 1st Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
interchange of appropriations
Not to exceed 10 percent of the foregoing amounts for the
miscellaneous expenses of the work of any bureau, division, or
office herein provided for shall be available interchangeably
for expenditures on the objects included within the general
expenses of such bureau, division, or office; but no more than
10 percent shall be added to any one item of appropriation
except in cases of extraordinary emergency, and then only upon
the written order of the Secretary of Agriculture: Provided,
That a statement of any transfers of appropriations made
hereunder shall be included in the annual Budget.
[[Page 6076]]
Mr. [Bertrand H.] Snell [of New York]: Mr. Chairman, I make a
point of order against the entire section on the ground it is
legislation. It gives additional authority to the Secretary of
Agriculture and places new duties upon him.
The Chairman: (13) The Chair is ready to rule. The
proviso at the bottom of the paragraph is clearly legislation, and
therefore the point of order of the gentleman from New York [Mr.
Snell] is sustained.
---------------------------------------------------------------------------
13. Franklin W. Hancock, Jr. (N.C.).
---------------------------------------------------------------------------
Requiring Administration and Disbursement in Certain Manner
Sec. 52.11 A provision in the District of Columbia appropriation bill
providing that the appropriation for public assistance shall be so
administered as to constitute the total amount that will be
utilized during such fiscal year for such purposes was held to
place additional duties upon the Commissioners and therefore
legislation on an appropriation bill and not a retrenchment within
the Holman rule exception.
On Feb. 1, 1938,(14) the Committee of the Whole was
considering H.R. 9181, a District of Columbia appropriation bill. The
following proceedings took place:
---------------------------------------------------------------------------
14. 83 Cong. Rec. 1364, 75th Cong. 3d Sess.
---------------------------------------------------------------------------
Public Assistance
For the purpose of affording relief to residents of the
District of Columbia who are unemployed or otherwise in distress
because of the existing emergency, to be expended by the Board of
Public Welfare of the District of Columbia by employment and direct
relief, in the discretion of the Board of Commissioners and under
rules and regulations to be prescribed by the board and without
regard to the provisions of any other law, payable from the
revenues of the District of Columbia, $900,000, and not to exceed
7\1/2\ percent of this appropriation and of Federal grants
reimbursed under this appropriation shall be expended for personal
services: Provided, That all auditing, disbursing, and accounting
for funds administered through the Public Assistance Division of
the Board of Public Welfare, including all employees engaged in
such work and records relating thereto, shall be under the
supervision and control of the Auditor of the District of Columbia:
Provided further, That this appropriation shall be so apportioned
and distributed by the Commissioners over the fiscal year ending
June 30, 1939, and shall be so administered, during such fiscal
year, as to constitute the total amount that will be utilized
during such fiscal year for such purposes: Provided further, That
not more than $75 per month shall be paid therefrom to any one
family.
Mr. [Gerald R.] Boileau [of Wisconsin]: Mr. Chairman, I make a
point of order against the proviso appearing
[[Page 6077]]
on page 58, line 2, after the word ``Columbia'' and ending on line
7 with the word ``purposes.''
I make the point of order that this proviso is legislation on
an appropriation bill. . . .
Mr. [Ross A.] Collins [of Mississippi]: Mr. Chairman, the
language about which the gentleman complains reads as follows:
Provided further, That this appropriation shall be so
apportioned and distributed by the Commissioners over the
fiscal year ending June 30, 1939, and shall be so administered
during such fiscal year as to constitute the total amount that
will be utilized during such fiscal year for such purposes.
Unquestionably that is a limitation upon an appropriation and
therefore comes within the rules of the House. The object is to
save money, and the provision shows on its face that it will save
money. . . .
The Chairman: (15) . . . The Chair has examined the
language employed very carefully, and if I am correct in my
construction of that language, it seeks to impose an additional
burden upon the Commissioners who are charged with the duty of
administering the fund sought to be appropriated. In addition to
that, there is nothing apparent in the language of the section that
will result in a saving. The inference that we have from the
statement of the chairman of the Subcommittee on Appropriations is
not sufficient to bring it within the rule that a saving will be
effected.
---------------------------------------------------------------------------
15. William J. Driver (Ark.).
---------------------------------------------------------------------------
The Chair is therefore of the opinion that the point of order
is well taken and so rules.
Additional Determination to That in Pending Language
Sec. 52.12 Legislation permitted to remain in an appropriation bill
may be perfected by germane amendments which do not provide
additional legislation, but to a legislative provision in an
appropriation bill authorizing transfers between appropriations
with the approval of the Director of the Budget an amendment
requiring the Director to first determine that such transfers would
not result in a deficiency requiring restoration of funds was held
to add requirements for additional determinations.
On Feb. 19, 1953,(16) during consideration in the
Committee of the Whole of a supplemental appropriation bill (H.R.
3053), a point of order was raised against an amendment, as indicated:
---------------------------------------------------------------------------
16. 99 Cong. Rec. 1280, 83d Cong. 1st Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
``Military personnel requirements,'' Department of the Air
Force, $115 million; the foregoing amounts under this heading
to be derived by transfer from such appropriations available to
the Department of Defense for obligation during the fiscal year
1953 as may be designated by the Secretary of Defense with the
approval of the Director of the Bureau of the Budget.
[[Page 6078]]
Mr. [Samuel W.] Yorty [of California]: Mr. Chairman, I offer an
amendment.
The Clerk read as follows:
Amendment offered by Mr. Yorty: On page 12, line 17, after
the word ``Budget'', insert a new sentence as follows: ``Before
approving any such transfer, the Director of the Bureau of the
Budget shall first determine that such transfer will not result
in a deficiency requiring restoration of any of the amount
transferred to the appropriation from which the transfer is
approved.''. . .
Mr. [Richard B.] Wigglesworth [of Massachusetts]: Mr. Chairman,
I make a point of order against the amendment, that it is
legislation on an appropriation bill and imposes new duties on the
Director of the Bureau of the Budget.
The Chairman: (17) Does the gentleman from
California desire to be heard on the point of order?
---------------------------------------------------------------------------
17. Leo E. Allen (Ill.).
---------------------------------------------------------------------------
Mr. Yorty: Yes, Mr. Chairman. I am simply spelling out one of
the conditions under which the transfer of funds is to be approved
by the Director of the Bureau of the Budget. This appropriation
bill already legislates, in that it requires the approval of the
Director of the Bureau of the Budget. I am simply saying that he
find a condition precedent before he approves that transfer. I do
not think the point of order is well taken.
The Chairman: The Chair is ready to rule.
In the opinion of the Chair the amendment contains legislation,
contrary to the rules of the House.
The Chair sustains the point of order.
Requirement for Promulgation of Regulations
Sec. 52.13 A paragraph in a general appropriation bill providing that
appropriations in the bill available for travel expenses shall be
available for expenses of attendance of officers and employees at
meetings or conventions ``under regulations prescribed by the
Secretary,'' was conceded to be legislation and held not in order.
On May 2, 1951,(18) during consideration in the
Committee of the Whole of the Interior Department appropriation
bill (H.R. 3790), a point of order was raised against the following
provision:
---------------------------------------------------------------------------
18. 97 Cong. Rec. 4738, 82d Cong. 1st Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
Sec. 104. Appropriations in this act available for travel
expenses shall be available, under regulations prescribed by
the Secretary, for expenses of attendance of officers and
employees at meetings or conventions of members of societies or
associations concerned with the work of the bureau or office
for which the appropriation concerned is made.
Mr. [Kenneth B.] Keating [of New York]: Mr. Chairman, I make
the point of order against section 104 that it is legislation on an
appropriation bill and involves additional duties.
The Chairman: (19) Does the Chair understand that
the gentleman from New York raises objection to the para
[[Page 6079]]
graph because of the use of the language ``under regulations
prescribed by the Secretary'' in lines 18 and 19?
---------------------------------------------------------------------------
19. Wilbur D. Mills (Ark.).
---------------------------------------------------------------------------
Mr. Keating: I do object to those words, and feel that that
makes the section out of order as it now stands, but I would still
press the point of order even with those words eliminated.
Mr. [Henry M.] Jackson of Washington: I wonder if the gentleman
would accept the section if it remains as is except for the
elimination of the words ``under regulations prescribed by the
Secretary.''
Mr. Keating: I feel that even with the elimination of those
words it would still involve legislation on an appropriation bill,
for exactly the same reasons for which the Chair has held section
102 subject to a point of order.
Mr. Jackson of Washington: Mr. Chairman, I concede the point of
order.
The Chairman: The point of order is sustained.
To the Extent the Secretary Finds Necessary
Sec. 52.14 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,(20) during consideration in the
Committee of the Whole of the Departments of Labor, and Health,
Education, and Welfare appropriation bill (H.R. 6287), a point of
order was raised against the following provision:
---------------------------------------------------------------------------
20. 103 Cong. Rec. 4559, 4560, 85th Cong. 1st Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
Grants to States for unemployment compensation and
employment service administration: For grants in accordance
with the provisions of the act of June 6, 1933, as amended (29
U.S.C. 49-49n), for carrying into effect section 602 of the
Servicemen's Readjustment Act of 1944, for grants to the States
as authorized in title III of the Social Security Act, as
amended (42 U.S.C. 501-503), including, upon the request of any
State, the purchase of equipment, and the payment of rental for
space made available to such State in lieu of grants for such
purpose, for necessary expenses including purchasing and
installing of air-conditioning equipment in connection with the
operation of employment office facilities and services in the
District of Columbia, and for expenses not otherwise provided
for, necessary for carrying out title IV of the Veterans'
Readjustment Assistance Act of 1952 (66 Stat. 684) and title XV
of the Social Security Act, as amended (68 Stat. 1130), $262
million, [of which $12 million shall be available only to the
extent that the Secretary finds necessary to meet increased
costs of administration resulting from changes in a State law
or increases in the numbers of claims filed and claims paid for
increased salary costs resulting from changes in State salary
compensation plans embracing employees of the State generally
over those upon which the State's basic grant (or the
allocation for the District of Columbia) was based, which
increased costs of administration cannot be provided for by
normal budgetary adjustments:] . . .
Mr. [John] Taber [of New York]: Mr. Chairman, a point of order.
[[Page 6080]]
The Chairman: (1) The gentleman will state it.
---------------------------------------------------------------------------
1. Aime J. Forand (R.I.).
---------------------------------------------------------------------------
Mr. Taber: Mr. Chairman, I make the point of order against the
language beginning after the first figure in line 5, with the words
``of which'' down to the word ``adjustments'', in line 15, as
legislation upon an appropriation bill and not authorized by law.
The Chairman: Does the gentleman from Rhode Island wish to be
heard on the point of order?
Mr. [John E.] Fogarty [of Rhode Island]: I do, Mr. Chairman.
This language has been carried in the bill for about 10 years, I
think. It was first put in, I believe, under the leadership of Mr.
Keefe when he was chairman of this subcommittee because we thought
it was in the form of a limitation on an appropriation bill and
would discourage supplementals and deficiencies that had previously
occurred. This $12 million was set aside for the specific reason of
taking care of unseen workloads that developed during the year and
increased States salaries which by law we are bound to provide when
the States increase salaries. So, in order to provide a fund like
this that would prevent them from coming back with supplementals
each year we agreed on this language. It was the intention of the
committee to be a limitation upon an appropriation.
Mr. Taber: Mr. Chairman, I should like to add to my point of
order that it requires additional duties of the Secretary.
The Chairman: The Chair is ready to rule.
The gentleman from New York makes the point of order that the
words referred to, beginning in line 5 and ending in line 15, are
legislation on an appropriation bill.
The Chair has studied the legislation and finds in agreement
with the statement of the gentleman from New York that additional
duties are imposed upon the Secretary, as shown in line 6, which
reads, ``that the Secretary finds necessary,'' and so forth.
Therefore, the Chair must uphold the point of order.
Mandating Contracting Practices
Sec. 52.15 To the Departments of State, Justice, Commerce, and the
Judiciary appropriation bill an amendment providing that ``all
repair and overhaul on Civil Aeronautics Administration airplanes
costing more than $100 shall be done on contract after submission
of bids'' was held to be legislation on an appropriation bill and
not in order.
On May 3, 1946,(2) during consideration in the Committee
of the Whole of a general appropriation bill (H.R. 6056), a point of
order was raised against the following amendment:
---------------------------------------------------------------------------
2. 92 Cong. Rec. 4424, 4425, 79th Cong. 2d Sess.
---------------------------------------------------------------------------
Mr. [Jennings] Randolph [of West Virginia]: Mr. Chairman, I
offer an amendment.
The Clerk read as follows:
[[Page 6081]]
Amendment offered by Mr. Randolph:
On page 56, line 25, strike out ``$1,500,000'' and insert
``$1,200,000.''
On page 57, line 9, strike out the period, insert a colon
and the following: ``Provided, That no funds in this paragraph
shall be expended for the pay of any employees of the Civil
Aeronautics Administration for the maintenance of more than one
parts warehouse, nor for the repair or overhaul of aircraft
costing more than $100 per airplane: And provided further, That
all repair and overhaul on Civil Aeronautics Administration
airplanes costing more than $100 shall be done on contract
after submission of bids. . . .''
Mr. [Louis C.] Rabaut [of Michigan]: Mr. Chairman, I insist on
my point of order. The amendment is a directive under the guise of
a limitation in the last proviso.
The Chairman: (3) Does the gentleman from West
Virginia desire to be heard on the point of order?
---------------------------------------------------------------------------
3. Wilbur D. Mills (Ark.).
---------------------------------------------------------------------------
Mr. Randolph: Not at this point.
The Chairman: The Chair is prepared to rule.
Mr. Randolph: I am ready to hear the Chair.
The Chairman: The gentleman from West Virginia offers an
amendment to page 56, line 25, and page 57, line 9, to the bill
H.R. 6056. The amendment down to and including the word
``airplanes'' and the comma, is perhaps nothing more than a
limitation and in order. The language following the comma after the
word ``airplane'' seems to require of the Civil Aeronautics
Administration other responsibilities and to impose additional
duties upon that agency of Government. Therefore it would be
legislation and subject to a point of order. The Chair sustains the
point of order.
Requiring Subjective Determination of ``Full Benefit''
Sec. 52.16 An amendment in the form of a limitation prohibiting use of
an appropriation for promulgation of orders establishing wholesale
prices on commodities to be sold at retail which do not give all
retail distributors full benefit of the lowest wholesale prices
established for any retail distributor was held to impose
affirmative duties not already in the law and therefore not in
order.
On June 18, 1943,(4) the Committee of the Whole was
considering H.R. 2968, a war agencies appropriation bill. The Clerk
read as follows:
---------------------------------------------------------------------------
4. 89 Cong. Rec. 6126, 6127, 78th Cong. 1st Sess.
---------------------------------------------------------------------------
Amendment offered by Mr. August H. Andresen [of Minnesota]: At
the end of the paragraph on page 13 insert the following language:
``Provided further, That no part of this appropriation shall be
used for the promulgation of orders or directives establishing
wholesale prices on commodities to be sold at retail, which do not
give all retail distributors the full benefit of the lowest
wholesale price established for any retail distributor.''
[[Page 6082]]
Mr. [Clarence] Cannon of Missouri: Mr. Chairman, I make a point
of order against the amendment on the ground that under the guise
of limitation it proposes affirmative legislation. It is a
proposition to restrict executive discretion. It constitutes
legislation and is not in order on an appropriation bill. . . .
The Chairman: (5) The Chair is ready to rule. . .
---------------------------------------------------------------------------
5. John J. Sparkman (Ala.).
---------------------------------------------------------------------------
The Chair calls the attention of the committee to the fact that
the language attempted to be inserted by the amendment of the
gentleman from Minnesota really divides itself into two parts and
in order that the Members may understand it the Chair will read the
amendment for the information of the committee:
Provided further, That no part of this appropriation shall
be used for the promulgation of orders or directives
establishing wholesale prices on commodities and articles sold
at retail, which do not give all retail distributors the full
benefit of the lowest wholesale price established for any
retail distributor.
The Chair is of opinion that the first part of the amendment
ending with the comma, were it offered alone, would be a limitation
within the rules of the House and would not be subject to a point
of order; but when the latter part is added, it goes beyond the
point of a limitation and imposes upon the officials charged with
the administration of this act certain affirmative duties and is
subject to a point of order.
The point of order is therefore sustained.
Requiring Determination That Recipient ``Participates, Cooperates, or
Supports''
Sec. 52.17 To a general appropriation bill providing funds, inter alia,
for a national foundation on the arts, an amendment prohibiting
payment of such funds to any person or organization which supports
any action resulting in the destruction of a structure of historic
or cultural significance [thus requiring the official administering
the program to make certain new determinations], was held to impose
additional duties and was ruled out as legislation.
On Apr. 5, 1966, (6) during consideration in the
Committee of the Whole of the Interior Department appropriation
bill (H.R. 14215), a point of order was raised against the
following amendment:
---------------------------------------------------------------------------
6. 112 Cong. Rec. 7688, 7689, 89th Cong. 2d Sess.
---------------------------------------------------------------------------
Mr. [William B.] Widnall [of New Jersey]: Mr. Chairman, I offer
an amendment.
The Clerk read as follows:
Amendment offered by Mr. Widnall: Page 42, before the
period in line 2, insert the following: ``Provided further,
That the amounts appropriated under this paragraph shall be
available to any organization, or entity, only on condition
that not more than 12\1/2\ percent of the
[[Page 6083]]
amount so made available be expended in any one State: And
provided further, That no part of any amount appropriated under
this paragraph shall be used to make grants to any
organization, or entity, or to pay the salary of (or to cover
expenses incurred by) any person who, or organization which, in
his, or its, official, or unofficial capacity, participates in,
cooperates with, or supports any action which could result in
the destruction of any structure, or place, of local or
national historic or cultural significance, including the
Metropolitan Opera House located at 39th Street and Broadway in
New York City''.
Mr. [Winfield K.] Denton [of Indiana]: Mr. Chairman, I make a
point of order against the amendment.
The Chairman: (7) The gentleman will state the point
of order.
---------------------------------------------------------------------------
7. Charles M. Price (Ill.).
---------------------------------------------------------------------------
Mr. Denton: Mr. Chairman, this changes existing legislation. It
provides that there should be quotas among the States when the
existing legislation does not contain such a provision. This is
legislation that changes existing legislation.
The Chairman: Does the gentleman from New Jersey desire to be
heard on the point of order?
Mr. Widnall: Mr. Chairman, I believe this is a type of
amendment that has been accepted before on similar legislation. It
seeks to protect the interests of the States in these grants and in
the distribution of funds under this program. I think it is a very
equitable amendment and should be accepted by the Committee.
The Chairman: The Chair is prepared to rule.
This amendment would impose new duties on the officials charged
with the administration of this program in determining whether
grants should be made to any person or organization which
participates and cooperates with or supports any action which could
result in the destruction of any structure or place of local or
national historic or cultural significance.
For the reasons above stated, the amendment is obviously
legislation on an appropriation bill.
The Chair sustains the point of order.
New Determinations Not Required by Law in Making Allocation of Funds
Sec. 52.18 Where existing law (20 USC Sec. 238) provides, in its
allotment formula for determining entitlements of local 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
em
[[Page 6084]]
ployed 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.
On June 26, 1973,(8) during consideration in the
Committee of the Whole of the Departments of Labor, and Health,
Education, and Welfare appropriation bill (H.R. 8877), a point of order
was raised against the following amendment, and proceedings ensued as
indicated below:
---------------------------------------------------------------------------
8. 119 Cong. Rec. 21393, 21394, 93d Cong. 1st Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
Amendment offered by Mr. [William] Lehman [of Florida]:
Page 19, line 19, after ``Act'' insert the following: ``:
Provided further, That none of the funds contained herein shall
be available to make any payment to a local educational agency
under the Act of September 30, 1950, which is attributable to
children described in section 3(b) of title I whose parents are
employed on Federal property outside the school district of
such agency''.
Mr. [Daniel J.] Flood [of Pennsylvania]: Mr. Chairman, a point
of order.
The Chairman: (9) The gentleman will state it.
---------------------------------------------------------------------------
9. Chet Holifield (Calif.).
---------------------------------------------------------------------------
Mr. Flood: Mr. Chairman, I make a point of order against the
amendment on the ground that it is legislation on an appropriation
bill.
First, Mr. Chairman, this amendment would change the existing
law in that it would distinguish between children whose parents
work in a key school district and children whose parents work
outside the school district. The present law which we have makes
absolutely no such distinction.
The second point, Mr. Chairman, is that this would obviously
impose additional duties upon whatever Federal officials there are
in the entire program and would require them to establish
procedures with all sorts of red tape to determine where the place
of work is, whether they work there or not, whether the parents
were in the school district or not.
Such procedures do not exist in the law because they are not
required under present law. . . .
Mrs. [Patsy T.] Mink [of Hawaii]: Mr. Chairman, I rise in
support of the point of order made by the chairman of the
subcommittee of the Appropriations Committee against the amendment
offered by the gentleman from Florida (Mr. Lehman). Mr. Chairman,
the point of order I wish to concur in is that the language of the
amendment is legislation in an appropriation bill. It requires a
different method of allocating funds to eligible school districts
than that provided in the authorizing legislation, Public Law 81-
874.
Mr. Chairman, I realize that the gentleman from Florida has
carefully phrased his amendment in an attempt to avoid this
prohibition in clause 2 of rule XXI. But in this attempt, the
gentleman has failed. The exception to the rule dealing with a
retrenchment of
[[Page 6085]]
appropriations is subject to the qualification that it must not
impose additional administrative burdens and ministerial duties on
the administration in carrying out the basic law for which the
appropriation is made. In this regard, Mr. Chairman, I call
attention to the annotations to rule XXI, clause 2, appearing on
page 472 of the House Rules and Manual for the 93d Congress in
which it is noted:
But such limitations must not give affirmative directions
(IV, 3854-3859, 3975; VII, 1637), and must not impose new
duties upon an executive officer (VII, 1676; July 31, 1969, p.
21631-33; June 11, 1968, p. 16712), and must not be coupled
with legislation not directly instrumental in affecting a
reduction (VII, 1555, 1557).
I have checked to determine whether or not any additional
ministerial duties will be required in carrying out the amendment
offered by the gentleman from Florida and I am advised that this
will require administrators of the program to make an additional
extraction from survey data gathered from parents to determine
whether or not the place of work of the parent is located within or
without the school district.
Mr. Chairman, this is not a simple task. In many school
systems, these survey forms run into many thousands and nationwide,
this would multiply this ministerial task by each of the several
thousand school districts participating in Public Law 91-874.
The ruling which I seek is consistent with the rulings of the
Chair June 26, 1968, February 19, 1970, and April 14, 1970, found
on pages H18894, H1088, and H3036 of the Congressional Record for
those respective dates. I urge that the Chair sustain the point of
order. . . .
Mr. [Sidney R.] Yates [of Illinois]: I suggest, Mr. Chairman,
this is an appropriate retrenchment under the Holman Rule and that
the legislation is appropriate under that rule.
The Chairman: . . . The Chair feels that while the amendment is
in the form of a limitation it also would require additional
determinations not now required by law. Since it would require
additional duties, the amendment is legislation on the
appropriation bill and not in order.
The Chair sustains the point of order.
Parliamentarian's Note: It should be emphasized that the provisions
in question above did not comprise a negative prohibition on the
availability of funds for an otherwise eligible class of recipients,
but rather a redefinition of the entire class, contrary to that class
of eligible recipients found in existing law. See also Sec. Sec. 36.8-
36.12, supra, for discussion of other examples of provisions affecting
allocation of educational assistance.
New Direction in Fund Distribution Not Required by Law
Sec. 52.19 A provision in an amendment to a general appropriation bill
denying the use of any funds for im
[[Page 6086]]
pacted 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,(10) 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:
---------------------------------------------------------------------------
10. 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 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: (11) The Chair will hear the gentleman
on the point of order.
---------------------------------------------------------------------------
11. 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
[[Page 6087]]
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 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.
Requiring Investigation
Sec. 52.20 To an appropriation bill an amendment imposing
[[Page 6088]]
new conditions and formulas for determining amounts to be charged
as rent for public housing units was held to alter existing law and
ruled out of order as legislation on an appropriation bill.
On Mar. 20, 1952,(12) during consideration in the
Committee of the Whole of the independent offices appropriation bill
(H.R. 7072), a point of order was raised against the following
provision:
---------------------------------------------------------------------------
12. 98 Cong. Rec. 2638, 2639, 82d Cong. 2d Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
Amendment offered by Mr. [Hubert B.] Scudder [of
California]: On page 24, after line 6, insert the following:
``Provided further, That the Public Housing Administration
shall investigate the income of the occupants of each housing
unit, and the rental for each such unit shall be the rental
established by law or 20 percent of the total income of the
occupants thereof, whichever is the greater.''
Mr. [Albert] Thomas [of Texas]: Mr. Chairman, I make a point of
order against the amendment, but I reserve it at this time. . . .
The Chairman: (13) The Chair is ready to rule.
---------------------------------------------------------------------------
13. Wilbur D. Mills (Ark.).
---------------------------------------------------------------------------
The gentleman from California has offered an amendment, to
which the gentleman from Texas [Mr. Thomas] makes a point of order.
The Chair has had an opportunity to examine the amendment
offered by the gentleman from California, and is of the opinion
that the amendment proposes to add new conditions regarding
determination of rentals of public housing thus altering existing
law. The amendment also would impose additional duties not required
by existing law upon housing officials.
It is the opinion of the Chair, therefore, that the amendment
is legislation on an appropriation bill and the point of order is
sustained.
Affirmative Directive to Recipient of Funds; Imposing Duty to Monitor
Actions of Recipients
Sec. 52.21 An amendment to an appropriation bill in the form of a
limitation not negative in effect (rather: 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 known to prospective students certain
information) was held to be legislation and not in order.
On Feb. 14, 1936,(14) the Committee of the Whole was
considering H.R. 11035, a War Department appropriation bill. At one
point the Clerk read as follows:
---------------------------------------------------------------------------
14. 80 Cong. Rec. 2091-94, 74th Cong. 2d Sess.
---------------------------------------------------------------------------
For the procurement, maintenance, and issue, under such
regulations as
[[Page 6089]]
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 such public animals, means of transportation,
supplies, tentage, equipment, and uniforms as he may deem necessary
. . . $4,067,996; of which $400,000 shall be available immediately:
. . . Provided further, That none of the funds appropriated
elsewhere in this act, except for printing and binding and pay and
allowances of officers and enlisted men of the Regular Army, shall
be used for expenses in connection with the Reserve Officers'
Training Corps.
Mr. [Fred] Biermann [of Iowa]: Mr. Chairman, I offer an
amendment.
The Clerk read as follows:
Amendment offered by Mr. Biermann: On page 59, line 6,
after the word ``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: (15) 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:
---------------------------------------------------------------------------
15. 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.
Sec. 52.22 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
[[Page 6090]]
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,(16) the Committee of the Whole was
considering H.R. 5269, an Agriculture Department appropriation bill.
The Clerk read as follows:
---------------------------------------------------------------------------
16. 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 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: (17) Cannon's Precedents, page 667,
volume 7, 1936, section 1672, states:
---------------------------------------------------------------------------
17. 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.
[[Page 6091]]
Limitation is Negative, Not Affirmative Direction
Sec. 52.23 A limitation on a general appropriation bill must be in
effect a negative prohibition which proposes an easily discernible
standard for determining the application of the use of funds, and
not an affirmative direction to an executive officer.
On May 5, 1960,(18) The Committee of the Whole was
considering H.R. 11998, a Defense Department appropriation bill. The
Clerk read as follows:
---------------------------------------------------------------------------
18. 106 Cong. Rec. 9641, 86th Cong. 2d Sess.
---------------------------------------------------------------------------
Amendment offered by Mr. [James G.] O'Hara of Michigan: On page
45, after line 6, insert the following:
``Sec. 535. No funds appropriated in this Act shall be used to
pay any amount under a contract, made after the date of enactment
of this Act, which exceeds the amount of a lower bid if such
contract would have been awarded to the lower bidder but for the
application of any policy which favors the award of such a contract
to a person proposing to perform it in a facility not owned by the
United States.''
Mr. [Gerald R.] Ford [of Michigan]: Mr. Chairman, I am
constrained to make a point of order against the amendment offered
by the gentleman from Michigan [Mr. O'Hara]. It seems to me this
language is clearly subject to a point of order in that it imposes
additional duties on the Secretary of Defense. . . .
Mr. O'Hara of Michigan: Mr. Chairman, I would like to suggest
in connection with the point of order that this is a limitation on
an appropriation. It does not attempt to impose any additional
duties on the executive branch nor does it attempt to legislate in
an appropriation bill.
The Chairman: (19) The Chair is ready to rule. . . .
---------------------------------------------------------------------------
19. Eugene J. Keogh (N.Y.).
---------------------------------------------------------------------------
The Chair calls the attention of the committee to previous
rulings made on similar points of order and would like in addition
to call to the attention of the Committee the ruling that appears
in 4 Hinds' Precedents, page 660, in which it is clearly indicated
that a limitation is permitted on a general appropriation bill that
in effect provides a negative prohibition on the use of the money,
and no affirmative direction on the executive branch.
In the opinion of the Chair, the language here offered is a
negative prohibition and the Chair, therefore, overrules the point
of order.(20)
---------------------------------------------------------------------------
20. 4 Hinds' Precedents Sec. 3975. See also id. at Sec. 3968, where
discussion is had concerning the proposition that limitations
must be a negative restriction on the use of money and not an
affirmative direction to an executive officer. See also 7
Cannon's Precedents Sec. 1694.
---------------------------------------------------------------------------
Requiring Special Screening of Each Loan Application
Sec. 52.24 Language in the Agriculture Department appro
[[Page 6092]]
priation bill in the form of a limitation which provided in effect
that no part of the appropriation shall be paid to any employee of
the department or agencies thereof to engage in the execution of
any loan which has not first been offered to and refused by private
lending agencies customarily engaged in making such loans at
comparable rates, was held to provide additional functions for
employees not required under existing law to determine customary
loan practices, and therefore legislation on an appropriation bill.
On Apr. 19, 1943,(1) during consideration in the
Committee of the Whole of the Agriculture Department appropriation bill
(H.R. 2481), a point of order was raised against the following
provision:
---------------------------------------------------------------------------
1. 89 Cong. Rec. 3600, 3601, 78th Cong. 1st Sess.
---------------------------------------------------------------------------
Sec. 8. None of the funds herein appropriated or authorized
hereby to be expended shall be used to pay the compensation or
expenses of any officer or employee of the Department of
Agriculture, or of any bureau, office, agency, or service of the
Department or any corporation, institution, or association
supervised thereby, who engages in, or directs or authorizes any
other officer or employee of the Department or of any such bureau,
office, agency, service, corporation, institution, or association
to engage in the negotiation, solicitation, or execution of any
loan which has not first been offered to and refused by the private
lending agencies customarily engaged in making loans of similar
character and at comparable rates in the region where such loan is
proposed to be made. . . .
Mr. [John E.] Rankin [of Mississippi]: Mr. Chairman, I make a
point of order against section 8 on the ground that this section is
legislation on an appropriation bill. . . .
Mr. [Clifford R.] Hope [of Kansas]: Mr. Chairman, I simply call the
attention of the Chair to the fact that while many of the Government
lending agencies or semi-Government lending agencies are not included
in this bill, yet there are appropriations here for the Commodity
Credit Corporation, the Rural Electrification Administration, and
Federal Farm Mortgage Corporation, all of which make loans to farmers.
If this provision stays in the bill it means that the officials of
these organizations must in addition to the duties which are imposed
upon them by law make an investigation in the case of every
application, to determine whether or not the application has been
offered to and refused by private lending agencies customarily engaged
in making loans of a similar character in the region where the loan is
to be made. It has been held time and time again that where a provision
of this kind imposes duties upon a Federal official which are not
required by law it is legislative in character and subject to a point
of order. . . .
The Chairman: (2) The Chair is ready to rule. . . .
---------------------------------------------------------------------------
2. William M. Whittington (Miss.).
---------------------------------------------------------------------------
[[Page 6093]]
The matter is not altogether free from doubt, but in view of
the language of section 8, and in view of the additional duties
imposed and the additional determinations that must be made, it
seems to the Chair that such language is legislative in character.
Therefore the Chair sustains the point of order.
Requirement of Satisfactory Performance as Condition Precedent
Sec. 52.25 An amendment to a general appropriation bill in the form of
a limitation providing that no part of the money therein
appropriated shall be paid to any state unless and until the
Secretary of Agriculture was satisfied that state had complied with
certain conditions was held to be legislation imposing new
discretionary authority on a federal official.
On Apr. 23, 1937,(3) during consideration in the
Committee of the Whole of the Agriculture Department appropriation bill
(H.R. 6523), a point of order was raised against the following
amendment:
---------------------------------------------------------------------------
3. 81 Cong. Rec. 3783, 3784, 75th Cong. 1st Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
Amendment offered by Mr. [Jesse P.] Wolcott [of Michigan]:
Page 72, line 13, after the word ``probation'', insert
``Provided further, That no part of the money herein
appropriated shall be paid to any State unless and until, to
the satisfaction of the Secretary of Agriculture, such State
shall have provided by law or regulation modern means and
devices to safeguard against accidents and the loss of life on
highway projects within such State.''
Mr. [Clarence] Cannon of Missouri: Mr. Chairman, I make the
point of order against the amendment. It is legislation under the
guise of a limitation. The amendment provides affirmative direction
which is clearly legislation on an appropriation bill.
Mr. Wolcott: Mr. Chairman, I would like to be heard on the
point of order.
The Chairman: (4) The Chair will be pleased to hear
the gentleman from Michigan.
---------------------------------------------------------------------------
4. Franklin W. Hancock, Jr. (N.C.).
---------------------------------------------------------------------------
Mr. Wolcott: Mr. Chairman, I call the attention of the Chair to
the fact we have previously authorized appropriations to be made
under the Federal Highway Act which was passed and approved by the
President on July 11, 1916. Yearly there is authorized under that
act an appropriation of $125,000,000 which is disbursed according
to regulations set up not only by the Congress in the organic act
but also by regulations of the Bureau of Public Roads. If the
Bureau of Public Roads under the terms of the act can withhold any
funds which have been authorized by the Congress from any of the
States by reason of a regulation which it might set up, likewise
the Bureau can limit the expenditure within any State by providing
certain traffic safeguards to those using the highways as a
condition precedent to the spend
[[Page 6094]]
ing of Federal funds in the construction and maintenance of
Federal-aid roads. For this reason my amendment is purely a
limitation upon the distribution among and the use of the highway
funds by the State.
The Chairman: The Chair is ready to rule.
The Chair sustains the point of order on the ground that
although the amendment is drawn in the guise of a limitation, it
constitutes new legislation in that it imposes additional duties
upon the Secretary.
Change of Official Authorized to Make Expenditure
Sec. 52.26 An amendment providing that certain funds for river and
harbor projects shall be allocated and expended by the Secretary of
War and the Chief of Engineers, rather than the Secretary upon the
advice of the Chief of Engineers as required by existing law, was
held to constitute a change in existing law and was therefore not
in order on an appropriation bill.
On Feb. 14, 1936,(5) during consideration in the
Committee of the Whole of the War Department appropriation bill (H.R.
11035), a point of order was raised against the following amendment:
---------------------------------------------------------------------------
5. 80 Cong. Rec. 2103, 74th Cong. 2d Sess.
---------------------------------------------------------------------------
Mr. [Joseph J.] Mansfield [of Texas]: Mr. Chairman, I offer an
amendment.
The Clerk read as follows:
Amendment offered by Mr. Mansfield: On page 68, after the
colon, at the end of line 10, insert the following:
``Provided further, That expenditures under this
appropriation for river and harbor improvements shall be
limited to projects that have heretofore been specifically
authorized by Congress and all projects so authorized shall be
taken under consideration by the Secretary of War and the Chief
of Engineers, and the funds shall be allocated and expended in
such manner as in their judgment will best serve the interests
of commerce and navigation.''
Mr. [Tillman B.] Parks [of Arkansas]: Mr. Chairman, I desire to
make a point of order against that because it is legislation on an
appropriation bill.
I invite the attention of the Chair to section 627 of title
XXXIII of the Code. The gist of that section is that when an
appropriation has been made in lump sum and there should be a
surplus for the projects the lump sum was intended to cover that,
that surplus may be applied to other authorized projects as
determined by the Secretary of War upon the advice of the Chief of
Engineers. I also cite the chairman's attention to section 622.
Mr. Mansfield: Mr. Chairman, the amendment does not change
existing law. If the amendment is adopted, the money will be
expended just exactly as it has been expended ever since the Budget
was adopted. It is a limitation
[[Page 6095]]
and not legislation. It simply provides that the money shall be
expended in the manner in which the law now prescribes.
The Chairman: (6) The Chair is ready to rule. The
section quoted by the gentleman from Arkansas [Mr. Parks], 627 of
United States Code, title XXXIII, states how funds for river and
harbor improvements shall be expended. Among other things, it says
that the allotments to the respective works consolidated shall be
made by the Secretary of War upon recommendation by the Chief of
Engineers.
---------------------------------------------------------------------------
6. Claude V. Parsons (Ill.).
---------------------------------------------------------------------------
The language of this amendment is in order down to and
including the word ``Congress,'' but then it seeks to make
mandatory upon the Secretary of War and the Chief of Engineers the
allocation of these funds. The organic law provides that these
allocations shall be made by the Secretary of War and by him alone,
although upon the recommendation of the Chief of Engineers.
The Chair thinks that it is legislation upon an appropriation
bill and therefore sustains the point of order.
Approval of Expenditure Rates
Sec. 52.27 Language in an appropriation bill making money available for
the hire of draft animals with or without drivers at local rates
approved by the director was held legislative in nature and not in
order.
On May 19, 1937,(7) during consideration in the
Committee of the Whole of the Interior Department appropriation bill
(H.R. 6958), a point of order was raised against the following
provision:
---------------------------------------------------------------------------
7. 81 Cong. Rec. 4814, 75th Cong. 1st Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
Salaries and expenses, National Capital parks: For
administration, protection, maintenance, and improvement of the
Mount Vernon Memorial Highway, Arlington Memorial Bridge,
George Washington Memorial Parkway, Federal parks in the
District of Columbia, and other Federal lands authorized by the
act of May 29, 1930 (46 Stat. 482), including the pay and
allowances in accordance with the provisions of the act of May
27, 1924, as amended, of the police force for the Mount Vernon
Memorial Highway and the George Washington Memorial Parkway,
and the purchase of one passenger-carrying automobile and
operation, maintenance, repair, exchange, and storage of three
automobiles, revolvers, ammunition, uniforms, and equipment,
per-diem employees at rates of pay approved by the Director not
exceeding current rates for similar services in the District of
Columbia, the hire of draft animals with or without drivers at
local rates approved by the Director, traveling expenses and
carfare, and leather and rubber articles for the protection of
public property and employees, $176,000.
Mr. [John] Taber [of New York]: Mr. Chairman, I make a point of
order on the last paragraph. It creates additional duties and
imposes discretion in the Director of the Service. This language
appears on page 114, line 23. It
[[Page 6096]]
imposes additional duties on the Director. . . .
The Chairman: (8) The Chair inquires of the
gentleman as to whether or not this language is intended to
increase or add new duties to the Director?
---------------------------------------------------------------------------
8. Jere Cooper (Tenn.).
---------------------------------------------------------------------------
Mr. [Jed] Johnson of Oklahoma: I would say it does not, and
restricts the rates. It states they are not to exceed the current
rates.
The Chairman: Are these draft animals hired now with or without
drivers?
Mr. Johnson of Oklahoma: I am not sure I can give the Chair
that information.
Mr. [James G.] Scrugham [of Nevada]: They are hired with or
without.
The Chairman: The Chair is trying to ascertain whether or not
this changes existing law; that is, whether there is a change in
the method in which these animals have to be hired.
Mr. Johnson of Oklahoma: It is my information at the present
time they are hired either way, with or without.
The Chairman: What is the necessity for this language, then?
Mr. Johnson of Oklahoma: I may say to the Chair it has been in
the appropriation bill several years and there have been no
changes.
The Chairman: The fact it has been carried in previous bills
does not necessarily mean it is in order. Unless the gentleman can
cite some provision of law which would control the question, the
Chair is of the opinion that the point of order is good.
In the absence of a citation, the Chair sustains the point of
order.
Travel Expenses and Attendance at Meetings at Discretion of Commission
Sec. 52.28 Appropriations for traveling expenses, including expenses of
attendance at meetings considered necessary by the National
Bituminous Coal Commission, in the exercise of its discretion, for
the efficient discharge of its responsibilities were held
authorized by a law permitting inclusion of such language in a
general appropriation bill.
On Mar. 14, 1939,(9) the Committee of the Whole was
considering H.R. 4852, an Interior Department appropriation. The Clerk
read as follows, and proceedings ensued as indicated below:
---------------------------------------------------------------------------
9. 84 Cong. Rec. 2739, 2740, 76th Cong. 1st Sess.
---------------------------------------------------------------------------
Salaries and expenses: For all necessary expenditures of the
National Bituminous Coal Commission in performing the duties
imposed upon said Commission by the Bituminous Coal Act of 1937,
approved April 26, 1937 (50 Stat. 72), including personal services
and rent in the District of Columbia and elsewhere; traveling
expenses, including expenses of attendance at meetings which, in
the discretion of the Commission, are necessary for the efficient
discharge of its responsibilities . . . $2,900,000. . . .
[[Page 6097]]
Mr. [John] Taber [of New York]: Mr. Chairman, a point of order.
The Chairman: (10) The gentleman will state it.
---------------------------------------------------------------------------
10. Frank H. Buck (Calif.).
---------------------------------------------------------------------------
Mr. Taber: I make a point of order against the paragraph on the
ground it delegates additional power and discretion to the
Commission, and I call particular attention to lines 23, 24, and 25
of page 9, which also contain the words ``in the discretion of the
Commission.''
It seems to me this makes an appropriation and leaves the
amount of the appropriation which shall be spent to the discretion
of the Commission or gives the Commission power to determine
whether the appropriation should be made. It is the same thing as
delegating authority to the Commission to make an appropriation,
and is clearly legislation.
Mr. [Jed] Johnson of Oklahoma: Mr. Chairman, I desire to be
heard in opposition to the point of order.
If the distinguished gentleman from New York will read title V,
section 83, he will find full and ample authority for the language
to which he objects. . . .
The Chairman: The Chair is ready to rule. The Chair rules that
the inclusion of the words ``in the discretion of the Commission''
is probably covered by the citation given by the gentleman from
Oklahoma [Mr. Johnson]. Title V, section 83, of the United States
Code provides:
That no money appropriated by any act shall be expended for
membership fees or dues of any officer or employee of the
United States in any society or association, etc., or for the
expenses or attendance of any person at any meeting or
convention of members of any society or association unless such
fees, dues, or expenses are authorized to be paid by specific
appropriations for such purpose and are provided for in express
terms in some general appropriation.
The language in the paragraph under consideration seems to
comply with that provision, and the point of order is overruled.
Parliamentarian's Note: This statutory authority, now contained in
5 USC Sec. 5946, and 5 USC Sec. 4110, also specifically authorizes
appropriations for attendance at any meetings necessary to improve an
agency's efficiency. Thus, new discretionary authority is not conferred
by this language, since the law provides for its inclusion in a general
appropriation bill.
No Funds Except Where Secretary Determines National Security Dictates
Sec. 52.29 To a proviso in a general appropriation bill denying the use
of funds to pay price differentials on contracts made for the
purpose of relieving economic dislocations, an amendment exempting
from that prohibition contracts determined by the Secretary of the
Army pursuant to existing laws and regulations as not to be
inappropriate therefor by
[[Page 6098]]
reason of national security considerations was ruled out as
legislation imposing new duties on the Secretary, absent any
showing of existing provisions of law requiring such a
determination to be made.
On Sept. 16, 1980,(11) during consideration in the
Committee of the Whole of H.R. 8105, the Defense Department
appropriation bill, a point of order was sustained against an amendment
offered to a provision of the bill as indicated below:
---------------------------------------------------------------------------
11. 126 Cong. Rec. 25606, 25607, 96th Cong. 2d Sess.
---------------------------------------------------------------------------
Provided further, That no funds herein appropriated shall be
used for the payment of a price differential on contracts hereafter
made for the purpose of relieving economic dislocations: Provided
further, That none of the funds appropriated in this Act shall be
used except that, so far as practicable, all contracts shall be
awarded on a formally advertised competitive bid basis to the
lowest responsible bidder.
The Clerk read as follows:
Amendment offered by Mr. [Joseph P.] Addabbo [of New York]:
Page 41, line 23, strike out ``Provided further'' and all that
follows through ``economic dislocations:'' on page 42, line 1,
and insert in lieu thereof ``Provided further, That no funds
herein appropriated shall be used for the payment of a price
differential on contracts hereafter made for the purpose of
relieving economic dislocations other than contracts made by
the Defense Logistics Agency and such other contracts of the
Department of Defense as may be determined by the Secretary of
Defense pursuant to existing laws and regulations as not to be
inappropriate therefor by reason of national security
considerations:''. . .
Mr. [Jack] Edwards of Alabama: Mr. Chairman, I make a point of
order against the amendment as legislation in a general
appropriation bill, and therefore in violation of clause 2 of rule
XXI.
I respectfully direct the attention of the Chair to Deschler's
Procedure, chapter 25, section 11.2 which states:
It is not in order to make the availability of funds in a
general appropriation bill contingent upon a substantive
determination by an executive official which he is not
otherwise required by law to make.
I also respectfully direct the attention of the Chair to
section 843 of the House Manual, which states in part:
The fact that a limitation on the use of funds may . . .
impose certain incidental burdens on executive officials does
not destroy the character of the limitation as long as it does
not directly amend existing law and is descriptive of functions
and findings already required to be undertaken under existing
law.
The amendment prohibits the payment of price differentials on
contracts except ``as may be determined by the Secretary of Defense
pursuant to existing laws and regulations as not to be
inappropriate therefor by reason of national security
considerations.''
The exception makes the availability of funds for payment of
price differentials contingent on a substantive determination by
the Secretary of Defense
[[Page 6099]]
which is not now required under current law.
Although the determination is limited ``pursuant to existing
laws and regulations'', there is no existing law at the present
time, and if this amendment is enacted, it will constitute the
existing law, and require this new determination. . . . Mr.
Chairman, the amendment prohibits the payment of price
differentials on contracts except--and I quote:
As may be determined by the Secretary of Defense pursuant
to existing laws and regulations as not to be inappropriate
therefor by reason of national security considerations.
The exception makes the availability of funds for payment of
price differentials contingent on a substantive determination by
the Secretary of Defense which is not now required under the
current law. Although the determination is limited ``pursuant to
existing laws and regulations,'' there is no existing law at the
present time, and if this amendment is enacted, it will constitute
the existing law and require this new determination.
I would urge that the Chair rule that this amendment is out of
order. . . .
The Chairman: (12) The Chair is ready to rule.
---------------------------------------------------------------------------
12. Daniel D. Rostenkowski (Ill.).
---------------------------------------------------------------------------
The amendment would appear to call for a determination by the
Secretary of Defense as to appropriateness by reason of national
security considerations. Unless the gentleman from New York (Mr.
Addabbo) can cite to the Chair those provisions of existing law
requiring such determinations with respect to defense contracts,
the Chair must conclude that the amendment would impose new duties
upon the Secretary and would constitute legislation.
Mr. Addabbo: I accept the point of order, Mr. Chairman.
The Chairman: The Chair has sustained the point of order.
Making Lesser Determination Than That Contemplated by Law
Sec. 52.30 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.
On June 27, 1984,(13) during consideration in the
Committee of the Whole of the Treasury Department and Postal Service
appro
[[Page 6100]]
priation bill (H.R. 5798), an amendment was offered to the bill as
follows:
---------------------------------------------------------------------------
13. 130 Cong. Rec. ----, 98th Cong. 2d Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
Sec. 618. No funds appropriated by this Act shall be
available to pay for an abortion, or the administrative
expenses in connection with any health plan under the Federal
employees health benefit program which provides any benefits or
coverages for abortions, under such negotiated plans after the
last day of the contracts currently in force. . . .
Sec. 619. The provisions of section 618 shall not apply
where the life of the mother would be endangered if the fetus
were carried to term.
Mrs. [Patricia] Schroeder [of Colorado]: Mr. Chairman, I offer
an amendment.
The Clerk read as follows:
Amendment offered by Mrs. Schroeder: On page 51, in line 6,
delete ``life'' and insert in lieu thereof ``health''. . . .
Mr. [Christopher H.] Smith [of New Jersey]: Mr. Chairman, this
is legislating on an appropriations bill, in violation of rule XXI,
clause 2, and I ask that it be ruled in such a way by the Chair. .
. .
Mrs. Schroeder: Mr. Chairman, clause 2(b) of rule XXI states,
``No provision changing existing law shall be reported in any
general appropriation bill. . . .'' Out of this language comes the
general restriction prohibiting the consideration of legislation as
part of an appropriation bill. One way the Chair decides whether a
limitation constitutes legislation is to determine whether the
provision adds new affirmative directions for administrative
officers.
Clearly, section 619 of H.R. 5798 would have been subject to a
valid point of order, had any Member sought to raise one. The
``life of the mother'' exception to a limitation on funding for
abortions on an appropriations measure has on numerous occasions
been ruled out of order. This happened last year on this very
legislation.
But, no Member raised that point of order on section 619. My
amendment seeks to amend section 619 by enlarging the exception to
apply to the ``health of the mother,'' rather than to the ``life of
the mother.'' The appropriate test is not whether section 619, as
amended, would be subject to a point of order but, rather, the test
is whether my amendment adds new or different affirmative
directions to an administrative officer. The question is whether my
amendment would change the nature of the legislation already on
this bill.
To answer that question, we must refer to section 618 of the
bill, which prohibits the use of funds appropriated by the bill to
pay for an abortion or for administrative expenses in connection
with any health plan under the Federal Employees Health Benefit
Program [FEHBP] which provides benefits or coverages for abortions.
Clearly, the first part of this section is a nullity, because there
is no authorization to use one penny appropriated by the bill to
pay directly for an abortion. The operative language is the second
part.
The administrative burden imposed by section 619 is that the
Director of the Office of Personnel Management is required to
review contracts with health care providers to ensure that they
provide no reimbursement for abortions, unless the life of the
mother
[[Page 6101]]
is at stake. Examining those same contracts to ensure that they
provide no reimbursement for abortions unless the health of the
mother is at stake is precisely the same administrative burden.
Each involves reviewing 130 contracts to see whether certain
language appears in them. There is no different administrative
burden.
Arguably, section 619 creates another administrative burden
which requires the Director of the Office of Personnel Management
to monitor the implementation of health benefit plans to ensure
compliance with the restriction. In this role, section 619 asks the
Director of the Office of Personnel Management to second guess
doctors and insurance carriers to decide whether the life of the
mother would truly have been endangered if the fetus had been
carried to term. Undoubtedly, this is an affirmative obligation
which is nowhere authorized in law and which the Director of the
Office of Personnel Management is uniquely unqualified to perform.
My amendment reduces this administrative obligation. If the
Director of the Office of Personnel Management were obliged to
ensure compliance with section 619, as amended, he would merely
have to determine whether the health of the mother would have been
endangered if the fetus were carried to term. This is a much
smaller burden.
The life of the mother is a narrow subset of the health of the
mother. Medical personnel can say with far greater assurance that
the health of a patient might be impaired than that the life of the
patient might be lost. To make a determination that the life of the
mother would be endangered if the fetus were carried to term, one
must make a prior determination that the health of the mother was
also endangered. Hence, section 619, as amended by my amendment,
would impose a part of the administrative burden imposed by section
619, as reported, but a substantially reduced part. . . .
The Chairman: (14) The Chair is prepared to rule.
---------------------------------------------------------------------------
14. Anthony C. Beilenson (Calif.).
---------------------------------------------------------------------------
Under the precedents, a legislative provision permitted to
remain in a general appropriations bill may be perfected by
amendment so long as the amendment does not add further
legislation. The Chair would refer to Mr. Deschler, chapter XXVI,
section 2.3.
In the opinion of the Chair, the determinations required by
section 619 of this bill, the present bill, as to whether the life
of the mother is in danger necessarily subsume determinations as to
whether the health of the mother is in danger and, for that reason,
the amendment adds no different or more onerous requirements for
medical determination to those already required and contained in
section 619.
The Chair, therefore, would overrule the gentleman's point of
order.
Requiring Determination of Interest Costs
Sec. 52.31 Language in a general appropriation bill prohibiting the
use of funds therein as contributions to international
organizations in excess of the U.S. share of the organization's
assessment budget after deducting inter
[[Page 6102]]
est costs for loans through external borrowing was ruled out as
legislation, requiring federal officials to determine certain
interest costs, a duty not discernably required by existing law.
On Dec. 9, 1982,(15) during consideration in the
Committee of the Whole of the Departments of Commerce, Justice,
State, and the Judiciary appropriation bill (H.R. 6957), a point of
order against a provision was sustained as follows:
---------------------------------------------------------------------------
15. 128 Cong. Rec. ----, 97th Cong. 2d Sess. For a ruling on a
subsequent amendment to the bill having a similar purpose, see
Sec. 59.19 infra.
---------------------------------------------------------------------------
Mr. [Clement J.] Zablocki [of Wisconsin]: Mr. Chairman, I have
a point of order to the proviso on page 30.
The portion of the bill to which the point of order relates is
as follows:
International Organizations And Conferences
contributions to international organizations
For expenses, not otherwise provided for, necessary to meet
annual obligations of membership in international multilateral
organizations, pursuant to treaties, conventions, or specific
Acts of Congress, including funds for the payment of 1983
assessed contributions to the Inter-American Institute for Co-
operation on Agriculture, $449,815,000: Provided, That none of
the funds appropriated in this paragraph shall be available for
a United States contribution to an international organization
in excess of the United States share of the organization's
assessment budget after deducting from that budget any interest
costs for loans incurred on or after October 1, 1982 through
external borrowing. . . .
A major test of whether a provision in an appropriations bill
constitutes legislation under clause 2 of rule XXI is whether the
provision imposes on the Executive a new duty not mandated in
existing law.
With respect to the issue addressed in the proviso, it is not
the normal practice of these international organizations to engage
in external borrowing. Thus, U.S. assessed contributions are not
normally used for this purpose.
In the event that such organizations were to engage in external
borrowing and to pay off such loans from their assessed budgets,
the executive branch would be required to perform a series of
actions in order to comply with the proviso in question.
First, because in some cases the United States pays its
contribution in installments, the executive branch would be
required to ask each organization if it, in fact, intends to engage
in any external borrowing, and if so, the amount they intend to
borrow and at what interest rate.
Second, prior to final payment of the U.S. assessed
contribution, the executive branch is required to again inquire of
each of the 44 organizations whether it has, in fact, engaged in
any borrowing and the precise amount of interest paid as a result.
Third, the executive branch would be required to verify the
response from each organization.
Fourth, the executive branch would be required to calculate the
U.S. pro
[[Page 6103]]
rata share of such interest payments for each organization engaged
in such borrowing.
Fifth, the executive branch would be required to subtract the
U.S. pro rata share determined in the preceding procedure from its
final assessed payment to each affected organization.
None of these actions are required of the executive branch
under existing law and none are currently performed by the
executive branch as a matter of routine practice. . . .
More fundamentally, under existing law, the United States is
obligated to pay the full amount of its assessed contribution to an
international organization. This obligation can only be changed by
a superseding provision of law. The proviso attempts to be such a
law and as such is legislative in nature. . . .
The Chairman: (16) Does the gentleman from Iowa
desire to be heard on the point of order?
---------------------------------------------------------------------------
16. George E. Brown, Jr. (Calif.).
---------------------------------------------------------------------------
Mr. [Neal] Smith of Iowa: Mr. Chairman, I do not think it is
subject to a point of order, but at this time of the night we want
to save time. So, I am going to concede the point of order.
The Chairman: The point of order is conceded, and the Chair
upholds the point of order.
Requiring Evaluation of ``Propriety'' and ``Effectiveness''
Sec. 52.32 Language in the guise of a limitation requiring federal
officials to make evaluations of propriety and effectiveness 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,(17) during consideration in the
Committee of the Whole of the Departments of Labor, and Health and
Human Services appropriation bill (H.R. 4560), a point of order was
sustained against a provision in the bill, as follows:
---------------------------------------------------------------------------
17. 127 Cong. Rec. 23361, 97th Cong. 1st Sess.
---------------------------------------------------------------------------
Mr. [Eugene] Johnston [of North Carolina]: Mr. Chairman, I make
a point of order against the language on page 13 of the bill, lines
15 through 24.
The portion of the bill to which the point of order relates is
as follows:
Provided further, That none of the funds appropriated under
this paragraph shall be used to fund any grant to any business,
union, trade association, or other grantee which is not
properly reviewed under the peer review procedures used in
fiscal year 1980. Furthermore, none of the
[[Page 6104]]
funds appropriated under this paragraph shall be used to
provide grants to any business, union, trade association, or
other grantee that does not have an established and effective
program for educating employers or employees about occupational
hazards and disease.
Mr. Chairman, the language prohibits grants to any grantee
which does not have ``an established and effective program'' for
education. In order to implement this requirement, the Department
would have to establish a new procedure for determining what
represents an ``established and effective'' program.
In addition, this would preclude as a recipient any group
establishing such a program in the future.
Both of these requirements impose additional duties on the
Department and those represent legislation on an appropriations
bill.
In addition, it precludes the Secretary from monitoring the
expenditures of these funds in the future--all of this in violation
of clause 2, rule XXI, of the House. . . .
Mr. [David R.] Obey [of Wisconsin]: . . . I would like to make
the point that the Department has established procedures under
which these grants are made available, and this simply is a
limitation of the funds which can be expended under the procedures
which the Department has now and has had in the past.
The Chairman: (18) The Chair is prepared to rule.
---------------------------------------------------------------------------
18. Don Fuqua (Fla.).
---------------------------------------------------------------------------
The gentleman from North Carolina (Mr. Johnston) makes a point
of order against the language contained on page 13 of the bill. The
Chair has been persuaded by the argument, because he is not sure
what is meant by ``properly reviewed'' or what is contained in ``an
established and effective program,'' as contained on line 23, and
upholds the point of order of the gentleman from North Carolina
(Mr. Johnston) on the basis that those terms impose new duties and
determinations on executive officials.
Determining That Life of Mother Endangered if Fetus Carried to Term
Sec. 52.33 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.
On June 17, 1977,(19) during consideration in the
Committee of the Whole of the Departments of Labor, and Health,
Education, and Welfare and related agencies appropriation bill (H.R.
7555), a point of order was made and sustained against a provision in
the bill as follows:
---------------------------------------------------------------------------
19. 123 Cong. Rec. 19698, 19699, 95th Cong. 1st Sess.
---------------------------------------------------------------------------
The Chairman: (20) When the Committee of the Whole
rose on Thursday,
[[Page 6105]]
June 16, 1977, the Clerk had read from section 209, line 2, on page
40.
---------------------------------------------------------------------------
20. Richard Bolling (Mo.).
---------------------------------------------------------------------------
Are there any amendments? . . .
Mr. [Clifford R.] Allen [of Tennessee]: 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. . . .
The Chairman: The Chair is prepared to rule. . . .
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 investiga
[[Page 6106]]
tions. 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.
Duty of Determining Compliance With Federal Law
Sec. 52.34 It is in order on a general appropriation bill to deny funds
for the payment of salary to a federal employee who is not in
compliance with a federal law, for such limitation places no new
duties on a federal official who is already charged with enforcing
the law.
On Sept. 10, 1981,(1) an amendment to a general
appropriation bill prohibiting the use of funds therein to rehire
certain federal employees engaged in a strike in violation of federal
law (5 USC Sec. 7311; 18 USC Sec. 1918) was held in order as a
limitation not requiring new determinations on the part of federal
officials administering those funds, since existing law (5 USC
Sec. 3333) requiring an affidavit undertaking not to strike to be
signed by federal employees, and a court order enjoining the strike in
question, already imposed an obligation on the administering officials
to enforce the law. The proceedings are discussed in Sec. 74.6, infra.
---------------------------------------------------------------------------
1. 127 Cong. Rec. 20109, 20110, 97th Cong. 1st Sess.
---------------------------------------------------------------------------
Parliamentarian's Note: The precedents cited by the Chair in 7
Cannon's Precedents Sec. Sec. 1661 and 1662 were examples of
limitations held in order to deny payments to federal employees who
``willfully'' refuse to perform their duties. The determination of
``willfulness'' arguably involves an investigation into intent or
motive, and might have rendered those amendments suspect under more
recent precedents.
Funds Conditioned Upon Duties Already Required by Existing Law
Sec. 52.35 Where existing law authorizing public works employment
programs required a federal official to consider the severity and
duration of unemployment in project areas and to make grants to
local governments to be administered for the direct benefit and
employment of
[[Page 6107]]
unemployed residents of the affected community, language in a
general appropriation bill prohibiting the use of funds therein
where less than a certain percentage of the prospective employees
had resided in the area and had been unemployed for a stated length
of time was held in order as a limitation which did not impose upon
federal officials any substantially new duties not already required
by existing law.
The proceedings of Aug. 25, 1976,(2) are discussed in
Sec. 65.1, infra.
---------------------------------------------------------------------------
2. 122 Cong. Rec. 27737-39, 94th Cong. 2d Sess.
---------------------------------------------------------------------------
Sec. 52.36 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,(3) 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 amendment was as follows:
---------------------------------------------------------------------------
3. 126 Cong. Rec. 15354-56, 96th Cong. 2d Sess.
---------------------------------------------------------------------------
Amendment offered by Mr. [Robert H.] Michel [of Illinois]: Page
39, line 4, strike out ``$1,841,000,000'' and insert
``$1,486,000,000''. . . .
On line 7, after ``1980'' insert ``: Provided further, That
none of the funds appropriated in this paragraph and made available
on October 1, 1980 shall be used to pay trade readjustment benefits
under part I of subchapter B of chapter 2 of Title I of the Trade
Act of 1974 for any week to any individual who is entitled to
unemployment insurance benefits for such week:
[[Page 6108]]
Provided further, That none of the funds appropriated in this
paragraph and made available on October 1, 1980 shall be used to
pay trade readjustment benefits under part I of subchapter B of
chapter 2 of title II of the Trade Act of 1974 to any individual in
an amount for any week in excess of the weekly unemployment
insurance benefits which he received or which he would have
received if he applied for such insurance.''. . .
Mr. [Elwood H.] Hillis [of Indiana]: Mr. Chairman, I make a
point of order against the amendment.
Mr. Chairman, the amendment violates rule XXI of clause 2 of
the rules of the House in that it constitutes legislation in an
appropriation bill. The amendment is a change in law and not a mere
limitation of the expenditure of the funds appropriated.
The amendment does not on its face retrench Federal
expenditures covered by the bill. Under the precedents of the House
in order for an amendment to be covered by the so-called Holman
rule, it must on its face reduce Federal expenditures. . . .
Mr. Chairman, it appears to me that a similar situation is
presented by the pending amendment which has two parts. Part one of
the amendment would reduce the appropriations. The second part of
the amendment, the legislative part, must stand by itself and on
its face retrench expenditures, which it fails to do.
Chapter 26, section 10.4 of Deschler's procedure states:
An amendment to a general appropriation bill, proposing
legislation which will not patently reduce expenditures, though
providing for a reduction in the figures of an appropriation,
is not in order under clause 2 Rule XXI. . . .
Mr. Michel: Mr. Chairman, this is a straight limitation on an
appropriations bill which does nothing more than limit the use of
the funds under this program. In order to be considered as a proper
limitation on the use of funds, the amendment must prohibit the use
of money for some purpose already authorized by law. It has been
consistently upheld that the House has the right to refuse to
appropriate for any purpose which it may deem improper, even though
that purpose may be authorized by law. The principle of limitations
on appropriation bills is derived from this concept. If the House
has the right to refuse to appropriate anything for a particular
purpose authorized by law, it can appropriate for only a part of
that purpose and prohibit the use of money for the rest of the
purpose authorized by law. My amendment clearly passes this test.
This language will not require any extra work on the part of
the executive officer administering the funds. Both the trade
adjustment assistance program and the regular unemployment
insurance programs are administered by the same agencies, the State
unemployment insurance agencies and the amount and length of an
individual's regular unemployment insurance benefits must currently
be determined in order to determine the size of the trade
adjustment benefit.
The language of the current law is significant in this regard;
part (c) of section 232 states the following:
The amount of trade readjustment allowance payable to an
adversely affected worker . . . for any week
[[Page 6109]]
shall be reduced by any amount of unemployment insurance which
he receives, or which he would receive if he applied for such
insurance, with respect to such week; but, if the appropriate
State or Federal agency finally determines that the worker was
not entitled to unemployment insurance with respect to such
week, the reduction shall not apply with respect to such week.
The only determinations required under my amendment are: First,
the point in time when an individual's regular unemployment
benefits are exhausted; and second, the amount per week of such
benefits.
Both such determinations are required under current law, in the
section I just cited, as part of the process for calculating the
trade adjustment benefit to which an individual may be entitled.
Consequently, no additional duties are required of the executive
officers administering these funds under the language of my
amendment. Therefore, Mr. Chairman, I submit that my amendment is
not legislation and the point of order should not lie.
The Chairman Pro Tempore: (4) The Chair is ready to
rule.
---------------------------------------------------------------------------
4. John B. Breaux (La.).
---------------------------------------------------------------------------
For the reasons stated by the gentleman from Illinois and
because a reading of section 2292 of title 19, United States Code
indicates that the determinations required by the amendment offered
by the gentleman from Illinois are precisely those required by the
existing law in 19 U.S.C. 2292, the amendment, therefore, is in
order as a negative limitation on use of funds in this bill and the
``Holman rule'' is not applicable.
The point of order is overruled.
Parliamentarian's Note: Had the language of the amendment been
considered legislation, the ``Holman rule'' exception would not have
been applicable, since the reduction of the lump-sum figure was not the
necessary result of the language contained in the amendment.
Requiring Determination of Motive or Intent
Sec. 52.37 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,(5) are discussed in
Sec. 25.14, supra.
---------------------------------------------------------------------------
5. 120 Cong. Rec. 21687-94, 93d Cong. 2d Sess.
---------------------------------------------------------------------------
[[Page 6110]]
Requiring Substantive Determination Not Required by Law
Sec. 52.38 A restriction on the use of funds in a general appropriation
bill which requires a federal official to make a substantive
determination not required by any law applicable to his authority,
thereby requiring new investigations not required by law, is
legislation in violation of Rule XXI clause 2.
On Aug. 20, 1980,(6) an amendment to a general
appropriation bill prohibiting the use of funds therein for the General
Services Administration to dispose of United States owned agricultural
land declared surplus was ruled out as legislation requiring the
finding that surplus United States owned lands are ``agricultural'',
where the law cited by the proponent of the amendment defining that
term was not applicable to the GSA.
---------------------------------------------------------------------------
6. 126 Cong. Rec. 22156, 22158, 96th Cong. 2d Sess.
---------------------------------------------------------------------------
The proceedings are discussed in Sec. 57.17, infra.
Requiring Evaluation and Interpretation
Sec. 52.39 To a general appropriation bill containing funds for
operation of the Smithsonian Institution, an amendment prohibiting
the use of those funds for programs that present the theory of
evolution as the sole explanation of life's origins was held to
require new determinations as to the theoretical basis of the
funded programs and to be legislation in violation of Rule XXI
clause 2.
On July 22, 1981,(7) the Chair held that an amendment to
a general appropriation bill in the form of a limitation which required
a federal official to evaluate the theoretical basis of a program in
determining whether to apply the limitation was legislation, where that
duty was not already required by law. Under consideration was H.R.
4035, Department of the Interior appropriation for fiscal 1982,
providing in part:
---------------------------------------------------------------------------
7. 127 Cong. Rec. 16822, 97th Cong. 1st Sess.
---------------------------------------------------------------------------
For necessary expenses of the Smithsonian Institution,
including research in the fields of art, science, and history,
development, preservation, and documentation of the National
Collections; . . . $136,374,000: Provided, That funds appropriated
herein are available for advance payments to independent
contractors performing research services or participating in
official Smithsonian presentations: Provided further, That none of
these funds
[[Page 6111]]
shall be available to a Smithsonian Research Foundation.
The Clerk read as follows:
Amendments offered by Mr. [William E.] Dannemeyer [of
California]: On page 44, line 25, strike the period and insert
in lieu thereof the following: ``Provided further, That none of
these funds shall be available for public exhibits and
performances that present the theory of evolution as the sole
explanation of life's origins.''.
Page 45, line 16, strike the period and insert in lieu
thereof the following: ``Provided further, That none of the
funds shall be made available for museum programs that present
the theory of evolution as the sole explanation of life's
origins''. . . .
Mr. [Sidney R.] Yates [of Illinois]: Mr. Chairman, I make a
point of order that the amendment offered by the gentleman is
legislation on an appropriation bill contrary to clause 2 of rule
XXI. The amendment provides that funds would not be available for
exhibits and performances that present the theory of evolution as
the sole explanation of life's origins. This would require
Smithsonian officials to make a determination whether or not an
exhibition or performance presents the theory of evolution as the
sole explanation of life's origins. . . .
Because this amendment does require that a determination be
made that is not now required by law, it legislates on an
appropriation bill. These determinations are not ministerial in
nature. They would require a determination regarding the sole
explanation of life's origins. This is a matter which academicians
for centuries have not agreed upon. It would require a significant
level of activity on the part of Smithsonian officials to determine
the sole explanation of life's origins. . . .
Mr. Dannemeyer: . . . There would be a preferred way to offer
the thought expressed by this amendment, and that would be through
an authorization bill. But it relates to an authorization, or the
subject relates to the Smithsonian Institution, and I am advised
that we do not have an authorization bill going through the House
that governs or covers or relates to the Smithsonian Institution.
It has just been there so long, the memory of man runneth not to
the contrary, we do not have an authorization, so the only ability
a Member has, in effect, in a matter of this type is the
appropriation vehicle. . . .
The second argument is that the amendment would--I concede
there is some merit to the gentleman from Illinois' argument--that
it would, one interpretation would cause the operator of the museum
to survey the field to determine what theories exist as to the
origin of man and, therefore, it could be argued that it imposes
new duties.
I submit in response to that contention that there is nothing
in this amendment that would preclude the museum operator from
exhibiting the theory of evolution, but they could not use it as a
means, as an explanation of life's origin. To that extent I do not
believe that it imposes any new duties.
The Chairman: (8) . . . If there is no further
argument, the Chair has considered the amendments, the arguments of
the gentleman raising the point of order and the response thereto
and is prepared to rule and does now rule.
---------------------------------------------------------------------------
8. George E. Danielson (Calif.).
---------------------------------------------------------------------------
The amendments would require more than incidental
determinations
[[Page 6112]]
by some public official. The amendments would require that a
Federal official substantially evaluate public exhibits and
performances, and in the case of the second amendment, museum
programs, to draw conclusions therefrom as to their theoretical
basis.
The Chair finds that the amendments constitute legislation
which would be in violation of clause 2 of rule XXI prohibiting
legislation on an appropriation bill, and the point of order is
sustained.
Relationship of Limitation to All Agencies Funded
Sec. 52.40 In determining whether a restriction on the use of funds in
a general appropriation bill constitutes legislation in violation
of Rule XXI clause 2, the Chair must assess the impact of that
language on all of the agencies funded in the bill to which the
limitation applies in order to discern whether new duties would be
imposed on any federal official so affected.
On June 14, 1978,(9) The Chair found that, to a
general appropriation bill from which all funds for the Federal
Trade Commission had been stricken as unauthorized, an amendment
prohibiting the use of all funds in the bill to limit advertising
of (1) food products containing ingredients found safe by the Food
and Drug Administration or considered ``generally recognized as
safe'', or not containing ingredients found unsafe by the FDA, and
(2) toys not declared hazardous or unsafe by the Consumer Product
Safety Commission, imposed new duties upon the Federal
Communications Commission (another agency funded by the bill) to
evaluate findings of other federal agencies--duties not imposed
upon the FCC by existing law and therefore violated Rule XXI clause
2. The proceedings are discussed in Sec. 58.7, infra.
---------------------------------------------------------------------------
9. 124 Cong. Rec. 17644-47, 95th Cong. 2d Sess.
---------------------------------------------------------------------------
Limiting Funds to Administer or Enforce Law With Respect to Small Firms
Sec. 52.41 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
maintain
[[Page 6113]]
ing a temporary labor camp, the amendment was held not to constitute
additional legislation on an appropriation bill.
The proceedings of Aug. 27, 1980,(10) are discussed in
Sec. 73.11, infra.
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10. 126 Cong. Rec. 23519-21, 96th Cong. 2d Sess.
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Requiring ``Buy American'' Policy Where There is Domestic Production
Sec. 52.42 A section in a general appropriation bill prohibiting the
use of funds therein for the purchase of foreign-made tools except
to the extent that General Services Administration determines that
domestically produced tools are not available for procurement, was
held to impose additional duties on a federal official and was
ruled out as legislation in violation of Rule XXI clause 2.
On Nov. 30, 1982,(11) during consideration in the
Committee of the Whole of H.R. 7158 (Treasury Department and Postal
Service appropriation bill), a point of order was sustained against the
following provision in the bill:
11. 128 Cong. Rec. 28067, 97th Cong. 2d Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
Sec. 505. No part of any appropriation contained in this
Act shall be available for the procurement of or for the
payment of the salary of any person engaged in the procurement
of any hand or measuring tool(s) not produced in the United
States or its possessions except to the extent that the
Administrator of General Services or his designee shall
determine that a satisfactory quality and sufficient quantity
of hand or measuring tools produced in the United States or its
possessions cannot be procured as and when needed from sources
in the United States and its possessions or except in
accordance with procedures prescribed by section 6-104.4(b) of
Armed Services Procurement Regulation dated January 1, 1969, as
such regulation existed on June 15, 1970. This section shall be
applicable to all solicitations for bids opened after its
enactment. . . .
Mr. [Bill] Frenzel [of Minnesota]: The point of order is
against section 505 of H.R. 7158 as constituting legislation on an
appropriation bill. . . .
Section 505 prohibits appropriated funds from being used in the
procurement of any hand or measuring tool not produced in the
United States or its possessions unless the Administrator of
General Services makes a determination that a satisfactory quality
and sufficient quantity of hand or measuring tools produced in the
United States cannot be procured as and when needed from domestic
sources. . . .
Section 505 is not merely a limitation on appropriated funds
but establishes a procurement requirement not contained in existing
law, and requires a determination with respect to such procurement
by the General Services Administrator that would not be required to
be performed under existing law. . . .
The Chairman: (12) The Chair is prepared to rule.
---------------------------------------------------------------------------
12. Gerry E. Studds (Mass.).
---------------------------------------------------------------------------
[[Page 6114]]
The Chair would cite Deschler and Brown's Procedure, chapter
26, section 19.5:
A section in a general appropriation bill prohibiting the
use of funds in the bill for the purchase of foreign-made tools
except to the extent that the administrator of the General
Services Administration determines that domestically produced
tools are unavailable for procurement, was held to impose
additional duties on the Federal official and was ruled out as
legislation in violation of clause 2, rule XXI.
So for the reasons as stated precisely by the gentleman from
Minnesota (Mr. Frenzel) the Chair sustains the point of order and
the section is stricken.
Prohibiting Funds to Interfere With Rulemaking Authority
--Implicitly Requiring Agency to Reevaluate Directives and Regulations
Sec. 52.43 A provision in a general appropriation bill prohibiting the
use of funds therein by the Office of Management and Budget to
``interfere with'' the rulemaking authority of any regulatory
agency was ruled out as legislation which would implicitly require
that agency to make determinations not required by law in
evaluating and executing its responsibilities mandated by law.
On Nov. 30, 1982,(13) during consideration in the
Committee of the Whole of H.R. 7158 (Treasury Department and Postal
Service appropriation bill), a point of order was sustained against the
following provision of the bill:
---------------------------------------------------------------------------
13. 128 Cong. Rec. 28062, 28063, 97th Cong. 2d Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
Office of Management and Budget
salaries and expenses
For necessary expenses for the Office of Management and
Budget, including hire of passenger motor vehicles, services as
authorized by 5 U.S.C. 3109, and not to exceed $2,500 for
official representation expenses, $33,000,000: Provided, That
none of the funds made available by this Act may be used by the
Office of Management and Budget to interfere with the
rulemaking authority of any regulatory agency.
Mr. [Frank] Horton [of New York]: Mr. Chairman, I rise to make
a point of order against the limitation on the use of funds by the
Office of Management and Budget contained in lines 18 through 21 on
page 14. . . .
. . . [T]his limitation provides ``that none of the funds made
available by this act may be used by OMB to interfere with the
rulemaking authority of any regulatory agency.''
This proviso is subject to a point of order because it is
legislation in an appropriation bill, and therefore violates clause
2 of rule XXI of the House of Representatives. . . .
Mr. Chairman, I would suggest that the word ``interfere'' might
be easily in
[[Page 6115]]
terpreted to change existing law. Under the Paperwork Reduction Act
of 1980, no agency can require anyone to comply with a form
requesting information from more than nine persons unless that form
has been approved by OMB. Some forms are, of course, designed to
fulfill some regulatory objective. To the extent that OMB rejects
or modifies a form which was originated for a regulatory purpose,
it might be thought to be ``interfering'' with rulemaking
authority. More specifically, if a form is proposed as a part of a
regulation, OMB might file public comments on the form, and if the
OMB Director finds that the agency's response to his comments were
unreasonable, he could disapprove the form. This might be, of
course, interpreted as ``interference.''
Furthermore, under Executive Order 12,291, entitled ``Federal
Regulation,'' OMB is given authority to require agencies to comply
with various administrative requirements before proposing certain
regulations, and to consider advice on those proposed regulations
before issuing them in final form. Although the executive order is
carefully written to indicate that OMB's authority exists only ``to
the extent permitted by law,'' activities under the order might
also be thought by some people to be ``interference'' in agencies'
rulemaking authority. . . .
The Chairman: (14) The Chair is prepared to rule.
---------------------------------------------------------------------------
14. Gerry E. Studds (Mass.).
---------------------------------------------------------------------------
The Chair would cite the following provision from Deschler's
[Procedure], chapter 26, section 11.1, under the general heading
``Imposing Duties on an Executive Official.''
Sec. 11.1 Parliamentarian's Note: The application of any
limitation on an appropriation bill places some minimal extra
duties on federal officials, who, if nothing else, must
determine whether a particular use of funds falls within that
prohibited by the limitation. But when an amendment, while
curtailing certain uses of funds carried in the bill,
explicitly places new duties on officers of the government or
implicitly requires them to make investigations, compile
evidence, or make judgments and determinations not otherwise
required of them by law, then it assumes the character of
legislation and is subject to a point of order.
With that citation in mind, and with the arguments made by the
gentleman from New York, the maker of the point of order, and
because of the entire scope of the duties imposed by law upon the
Office of Management and Budget in relationship to regulatory
agencies, the Chair feels that the Committee on Appropriations has
not sustained the burden of showing that the proposed language
would not change and augment the responsibilities imposed by law on
the Office of Management and Budget and, therefore, sustains the
point of order.
Duties Already Being Performed Pursuant to Provisions in Annual
Appropriation Acts
Sec. 52.44 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
[[Page 6116]]
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,(15) during consideration in the
Committee of the Whole of the Departments of Labor, and Health and
Human Services appropriation bill (H.R. 3913), a point of order was
sustained as indicated below:
---------------------------------------------------------------------------
15. 129 Cong. Rec. ----, 98th Cong. 1st Sess.
---------------------------------------------------------------------------
Sec. 204. None of the funds provided by 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: Provided, however,
That the several States are and shall remain free not to fund
abortions to the extent that they in their sole discretion deem
appropriate. . . .
Mr. [Silvio O.] Conte [of Massachusetts]: Mr. Chairman, I rise
in opposition to the point of order.
The gentleman is correct that this language was ruled out of
order in 1977.
However, the fact is that while Chairman Bolling could in 1977
say with justification that this language then imposed a
determination on Federal officials, the same situation does not
exist today as we consider this bill today.
Mr. Chairman, our requirement that Federal officials determine
danger to the life of the mother has been in effect now for 8
consecutive years. What was in 1977 a new determination is not new
today. We have had 8 years of experience.
The administrative requirements and the procedures for making
this determination have been in operation, as I said, under the
existing law for the past 8 years. Therefore, Mr. Chairman, this
language does not now require a new determination and I ask that
the Chair overrule the point of order. . . .
The Chairman Pro Tempore: (16) The Chair is prepared
to rule.
---------------------------------------------------------------------------
16. Abraham Kazan, Jr. (Tex.).
---------------------------------------------------------------------------
The precedent cited by the gentleman from Oregon (Mr. AuCoin)
reads as follows:
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 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 argument of the gentleman from Massachusetts that for the
past several years this provision has been in the law does not
necessarily stand muster. The fact that a legislative provision has
been carried in general appropriation bills in the past does not
protect that provision from a timely point of order under rule XXI,
clause 2.
[[Page 6117]]
Therefore the Chair must sustain the point of order. Apparently
the point of order was not raised in the past several years so the
1977 rule would still apply.
Eligibility for Food Stamps Where Principal Wage Earner is on Strike
Sec. 52.45 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,(17) during consideration of H.R. 7558
(Department of Agriculture and related agencies appropriations, 1978),
an amendment was offered, as follows:
---------------------------------------------------------------------------
17. 123 Cong. Rec. 20150-52, 95th Cong. 1st Sess.
---------------------------------------------------------------------------
Mr. [John M.] Ashbrook [of Ohio]: Mr. Chairman, I offer an
amendment.
The Clerk read as follows:
Amendment offered by Mr. Ashbrook: On page 39, line 13, add
the following new paragraphs: ``Provided further, That no funds
appropriated in this Act shall be used to make food stamps
available for the duration of a strike to a household while its
principal wage-earner is, on account of a labor dispute to
which he is a party or to which a labor organization of which
he is a member is a party, on strike: Provided further, That
such ineligibility shall not apply to any household that was
eligible for and participating in the food stamp program
immediately prior to the start of such strike, dispute, or
other similar action in which any member of such household
engages: Provided further, That such ineligibility shall not
apply to any household if any of its members is subject to an
employer's lockout.''
Mr. Jamie L. Whitten, of Mississippi, made a point of order.
Mr. Whitten: . . . Mr. Chairman, I would like to point out that
with regard to the pending amendment that the language provides not
only the limitation, but it provides that food stamps shall not be
available for the duration of a strike to a household while its
principal wage earner is out of work on account of a labor dispute.
The question of ``on account of a labor dispute'' would
require, first, an investigation and determination.
Next it says to which he is a party. That in turn would require
an investigation and a determination of whether he is ``a party.''
[[Page 6118]]
Then it goes further and says ``a labor organization of which
he is a member is a party''. That, too, would require an
investigation and a determination.
Going down further we come to the statement where it says
``immediately prior to the start of such strike.'' I do not know
how anybody--even though that would require special duties--I do
not know how a fellow would perform those duties by knowing how to
anticipate what is just in advance of a strike. Certainly it would
require a very far-seeing man, knowing some of the things we read
about.
Then it goes further and says, ``or other similar action in
which any member of such household engages.''
All of these, Mr. Chairman, would require special duties.
As I read the last proviso it says:
Provided further, That such ineligibility shall not apply
to any household if any of its members is subject to an
employer's lockout.
That, in turn, would require a special investigation and
special determination. . . .
Mr. Ashbrook: . . . I fully recognize the fact that the
Congress has had this exact amendment before it on a number of
occasions, and in no way would make it in order if it were not. I
would suggest, however, that in the food stamp program,
determinations must be made. By its very nature, the food stamp
program does not go to all American families, but goes to families
after complete investigations as to the income of the family, as to
whether they are at work; if they are not at work, why they are not
at work.
I would further point out that nine States limit all forms of
welfare to strikers. The case in point yesterday in the Supreme
Court justified that particular ruling by the States. Programs are
administered by the States, and I suggest that it does not call
upon the Department of Agriculture to ask any questions or have any
duties that are not now in law. . . .
The Chairman: (18) The Chair has had an opportunity
to examine the amendment offered by the gentleman from Ohio (Mr.
Ashbrook) and also to consult the precedents.
---------------------------------------------------------------------------
18. Samuel S. Stratton (N.Y.).
---------------------------------------------------------------------------
The amendment offered by the gentleman from Ohio (Mr. Ashbrook)
does provide that no funds appropriated in this act shall be used
to make food stamps available for the duration of a strike to a
household while its principal wage earner is, on account of a labor
dispute to which he is a party or to whom a labor organization of
which he is a member is a party, on strike.
The amendment further provides that such ineligibility shall
not apply to any household if any of its members is subject to an
employer's lockout.
The amendment on this general subject which was offered in
1974, the Chair would point out, was not challenged by a point of
order.
The amendment that was offered in the 92d Congress in 1972,
which was ruled in order, was in fact different from the amendment
presently being offered by the gentleman from Ohio (Mr. Ashbrook).
The Chair would state that the amendment offered by the
gentleman from Ohio (Mr. Ashbrook) differs in a number of
significant respects from the amendment held in order in the 92d
[[Page 6119]]
Congress, 2d session, insofar as it does specify that the
ineligibility would apply to an individual who was the principal
wage earner of a household, that it applies to one who is
determined to be a member of a labor organization which is on
strike, and it further requires, in order to be carried out, a
determination whether that individual in the household, or any of
its members, is subject to an employer's lockout.
In the opinion of the Chair, the amendment does, therefore,
impose additional duties upon a Federal official who is not merely
the recipient of information--going beyond language that was held
in order in previous Congresses and, therefore, does amount to
legislation on an appropriation bill. Therefore, the Chair sustains
the point of order.
Parliamentarian's Note: In the 1972 ruling referred to above, an
amendment to a general 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 held in order as a
valid limitation.(19) Although the Chair tried to
distinguish the 1972 ruling, the 1977 precedent above should be
considered as effectively overruling the earlier decision. The
amendment at issue in 1972 would be viewed in the current practice as
requiring new determinations by executive officials, such as whether,
for example, a household needed assistance ``solely'' because a member
of the household was participating in a strike.
---------------------------------------------------------------------------
19. 118 Cong. Rec. 23364, 92d Cong. 2d Sess., June 29, 1972 [under
consideration was H.R. 15690].
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
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).
---------------------------------------------------------------------------
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. 54. Judging Qualifications of Recipients
Past Employment of Heads of Departments
Sec. 54.1 An amendment providing that no part of an appropriation shall
be paid to the head of any executive department who, within a
specified period was a partner in a firm which derived any income
from representing a foreign government, was held to be a proper
limitation on an appropriation bill and in order.
On July 26, 1951,(10) the Committee of the Whole was
considering H.R. 4740, a Departments of State, Justice, Commerce, and
the Judiciary appropriation bill. The Clerk read as follows:
---------------------------------------------------------------------------
10. 97 Cong. Rec. 8963, 8965, 82d Cong. 1st Sess.
---------------------------------------------------------------------------
Amendment offered by Mr. (John) Phillips (of California): On
page 58, following line 14, add a new section to be numbered
section 602:
``None of the money appropriated in this act shall be paid to
the head of any executive department who, within a period of 5
years preceding his appointment, was a partner in, or a
[[Page 6138]]
member of, a professional firm which derived any part of its income
from representing, or acting for, a foreign government, or who,
acting as an individual, derived income from such
representation.''. . .
The Chairman: (11). . . The Chair is prepared to
rule.
---------------------------------------------------------------------------
11. Jere Cooper (Tenn.).
---------------------------------------------------------------------------
The gentleman from California has offered an amendment which
has been reported by the Clerk. The gentleman from New York has
made a point of order against the amendment on the ground that it
is not a proper limitation on an appropriation bill.
The Chair has examined the amendment with some degree of care.
. . .
It should be clear that almost any limitation must necessarily
require some action on the part of somebody. One of the classic
illustrations given on many occasions by the distinguished
parliamentarian to whom the Chair made reference a few moments ago,
Hon. James R. Mann, of Illinois, was that if a provision states
that ``no part of this appropriation shall be paid to a red-headed
man,'' somebody will have to find that red-headed man and determine
whether his hair is red; therefore, it would appear that in any
instance where a limitation is sought to be imposed there must be
some activity contemplated or some effort exerted by someone to
carry out the provisions of the limitation.
The Chair would invite attention to section 1593 of Cannon's
Precedents, and reads the syllabus:
A provision that no part of an appropriation be used for
payment of any employee not appointed through the civil service
was held to be a limitation and in order on an appropriation
bill. . . .(12)
---------------------------------------------------------------------------
12. For more recent precedents involving limitations on funds for
salaries of certain employees as described in provisions of an
appropriation bill or amendment, see, for example, Sec. 74,
infra.
---------------------------------------------------------------------------
The Chair is of the opinion that that decision is applicable to
the pending question raised by the point of order made by the
gentleman from New York. It would appear that the over-all and
controlling element of the pending amendment is a limitation on an
appropriation bill. It is entirely negative in character, and does
not affirmatively impose any additional duties upon anybody.
Therefore the Chair overrules the point of order.
Qualification of Nonfederal Supplier of Goods or Services
Sec. 54.2 An amendment to a general appropriation bill providing that
none of the funds therein shall be used to purchase goods or
services from suppliers who compensate any of the officers or
employees in excess of a certain rate was held a valid limitation
on the use of funds in the bill which merely defined nonfederal
employer recipients who could not receive funds and did not
affirmatively impose salary levels.
[[Page 6139]]
On June 15, 1972,(13) during consideration in the
Committee of the Whole of the Departments of Labor, and Health,
Education, and Welfare appropriation bill (H.R. 15417), a point of
order was raised against the following amendment:
---------------------------------------------------------------------------
13. 118 Cong. Rec. 21136, 92d Cong. 2d Sess.
---------------------------------------------------------------------------
Mr. [Andrew] Jacobs [Jr., of Indiana]: Mr. Chairman, I offer an
amendment.
The Clerk read as follows:
Amendment offered by Mr. Jacobs: On page 40, after line 4,
insert:
``Sec. 409. No part of the funds appropriated by this Act
shall be used to purchase goods or services from a supplier
which compensates any officer or employee at a rate in excess
of level II of the Executive Schedule under section 5313 of
title 5, United States Code.''
Mr. [Daniel J.] Flood [of Pennsylvania: Mr. Chairman, I make a
point of order against the amendment.
The Chairman: (14) The gentleman will state his
point of order.
---------------------------------------------------------------------------
14. Chet Holifield (Calif.).
---------------------------------------------------------------------------
Mr. Flood: Mr. Chairman, again I am referring to Cannon's
Procedure of the House of Representatives, and I am referring to
pages 69 and 70, under the heading, ``Construed as legislation and
not limitations and therefore not admitted''.
I go on to read:
Provision that no part of an appropriation should be used
except in a certain way, thereby restricting executive
discretion to the extent of imposing new duties.
Now, this is clearly what is being attempted in this amendment.
The Chairman: Does the gentleman from Indiana desire to be
heard on the point of order?
Mr. Jacobs: Mr. Chairman, only to say that I think this is
clearly a limitation on an appropriation bill, and there have been
many occasions where appropriations cannot be used to make
purchases with corporations where certain activities are carried on
by the corporation.
I have nothing further to say.
The Chairman: The Chair is ready to rule.
The Chair is aware of the precedent cited by the gentleman from
Pennsylvania, but under the language as it is written in the
amendment offered by the gentleman from Indiana it is a negative
restriction, and therefore the Chair rules that the amendment is in
order.
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. 55. President's Authority
Grant of New Discretionary Authority
Sec. 55.1 Language in a general appropriation bill which authorizes the
President to determine amounts of funds to be available in the
administration of a program, although such funds are required to be
distributed by application of an allotment formula in existing law,
confers on the President a dis
[[Page 6140]]
cretionary authority to make determinations in contravention of
that law, and is therefore legislation on an appropriation bill and
subject to a point of order.
On Feb. 19, 1970,(15) during consideration in the
Committee of the Whole of the Departments of Labor, and Health,
Education, and Welfare appropriation bill (H.R. 15931), the following
point of order was raised:
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15. 116 Cong. Rec. 4019, 91st Cong. 2d Sess.
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The Chairman: (16) Are there any points of order?
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16. Chet Holifield (Calif.).
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Mr. [James G.] O'Hara [of Michigan]: Mr. Chairman, I rise to
make a point of order against the language contained in section
411, beginning on line 12, through line 20 on page 61, which reads
as follows:
Sec. 411. In the administration of any program provided for
in this Act, as to which the allocation, grant, apportionment,
or other distribution of funds among recipients is required to
be determined by application of a formula involving the amount
appropriated or otherwise made available for distribution, the
amount available for expenditure or obligation (as determined
by the President) shall be substituted for the amount
appropriated or otherwise made available in the application of
the formula.
Mr. Chairman, I make the point of order on the ground that the
section in question constitutes legislation on an appropriation
bill and does not come within the exception.
The Chairman: Does the gentleman from Pennsylvania desire to be
heard on the point of order?
Mr. [Daniel J.] Flood [of Pennsylvania]: Mr. Chairman, the
language is patently legislation on an appropriation bill. I
concede the point of order.
The Chairman: The gentleman from Pennsylvania concedes the
point of order, and the Chair sustains the point of order.
Affirmative Directive
Sec. 55.2 A provision in a general appropriation bill directing the
President to ``assure that no contribution to the United Nations
Development Program authorized by the Foreign Assistance Act of
1961 . . . shall be used for projects for economic or technical
assistance to the Government of Cuba, so long as Cuba is governed
by the Castro regime,'' was ruled out as legislation [constituting
a directive to the President and not confined to the funds carried
in the bill].
On June 4, 1970,(17) during consideration in the
Committee of the Whole of the foreign assistance appropriation bill
(H.R. 17867), a
[[Page 6141]]
point of order was raised against the following provision:
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17. 116 Cong. Rec. 18395, 18396, 91st Cong. 2d Sess.
---------------------------------------------------------------------------
Technical assistance: For necessary expenses as authorized by
law $310,000,000, distributed as follows:
(1) World-wide, $151,000,000 (section 212);
(2) Alliance for Progress, $75,000,000 (section 252(a)); and
(3) Multilateral organizations, $85,000,000 (section 302(a)),
of which not less than $13,000,000 shall be available only for the
United Nations Children's Fund: Provided, That no part of this
appropriation shall be used to initiate any project or activity
which has not been justified to the Congress, except projects or
activities relating to the reduction of population growth; Provided
further, That the President shall seek to assure that no
contribution to the United Nations Development Program authorized
by the Foreign Assistance Act of 1961, as amended, shall be used
for projects for economic or technical assistance to the Government
of Cuba, so long as Cuba is governed by the Castro regime. . . .
Mr. [Clement J.] Zablocki [of Wisconsin]: Mr. Chairman, a point
of order.
The Chairman: (18) . . . The Chair will hear the
gentleman from Wisconsin on his point of order.
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18. Hale Boggs (La.).
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Mr. Zablocki: Mr. Chairman, I make the point of order that the
entire proviso beginning on line 20 and ending on line 25 of page 2
is legislation in an appropriation. I am for its objectives, but in
effect it simply says that the President should try to enforce
existing law. The provisions in existing law, section 620 of the
Foreign Assistance Act are stronger and there is no sense in this
useless repetition in an appropriation.
Mr. Chairman, I make the point of order that this is
legislation on an appropriation bill.
The Chairman: Does the gentleman from Louisiana wish to be
heard on the point of order?
Mr. [Otto E.] Passman [of Louisiana]: Yes, sir, Mr. Chairman.
The proviso was added by the Committee on Appropriations in the
foreign assistance appropriation bill for fiscal year 1965 in order
to insure that no U.S. contribution to the UNDP would be used to
give any type of economical or technical assistance to Cuba as long
as Cuba is governed by the Castro regime.
I would like to interpret this as a limitation on an
appropriation bill and ask for a ruling.
The Chairman: The language in question is as follows: Line 20,
page 2:
Provided further, That the President shall seek to assure .
. .
And so forth.
That is obviously a directive to the President of the United
States, it is not limited in application to the funds appropriated
in this bill or any section thereof, and the Chair sustains the
point of order.
Limiting President's Legal Authority
Sec. 55.3 Where existing law gives the President discretionary
authority to furnish and allocate foreign military assist
[[Page 6142]]
ance, subject to the authorization levels contained therein, it is
not in order in a general appropriation bill to include language
which would limit the President's authority to allocate excess
defense articles to 120 percent of amounts justified to Congress
for any country.
On June 4, 1970,(19) during consideration in the
Committee of the Whole of the foreign assistance appropriation bill
(H.R. 17867), the following paragraph was read:
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19. 116 Cong. Rec. 18400, 18401, 91st Cong. 2d Sess.
---------------------------------------------------------------------------
Military assistance: For expenses authorized by section 504(a)
of the Foreign Assistance Act of 1961, as amended, including
administrative expenses and purchase of passenger motor vehicles
for replacement only for use outside of the United States,
$350,000,000: Provided, That none of the funds contained in this
paragraph shall be available for the purchase of new automotive
vehicles outside of the United States . . . Provided further, That
the military assistance program for any country shall not be
increased beyond twenty per centum of the amount justified to the
Congress, unless the President determines that an increase in such
program is essential to the national interest of the United States
and reports each such determination to the House of Representatives
and the Senate within thirty days after each such determination:
Provided further, That the Excess Defense Articles program for any
country shall not be increased beyond twenty per centum of the
amount presented to the Congress.
Mr. [Clement J.] Zablocki [of Wisconsin]: Mr. Chairman, I make
a point of order against the proviso on lines 16 through 19. This
is clearly legislation in an appropriation and is not a proper
appropriation limitation. It attempts to provide that excess
defense articles programs may be increased up to 20 percent for any
country beyond the amounts presented to the Congress.
As I stated earlier, Mr. Chairman, it is not my intention to go
into the substance of the proviso since this language is not in the
authorization act. I do want to point out, however, that this
proviso particularly is not in the interest of our national
security nor is it in the interest of our economic well-being.
Therefore, Mr. Chairman, I want to renew my point of order that
this is legislation in an appropriation bill. . . .
The Chairman: (20) The Chair is prepared to rule.
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20. Hale Boggs (La.).
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The gentleman from Wisconsin has raised a point of order
against the language appearing on page 6 of the bill, lines 16
through 19, relating to excess defense articles, on the ground that
the proviso is in the nature of legislation on an appropriation
bill in violation of rule XXI, clause 2.
The Chair has examined the Foreign Assistance Act of 1961, as
amended. Section 503 of that act bestows authority for military
assistance and gives the President wide discretion in the
[[Page 6143]]
furnishing and allotment of such assistance, subject of course to
the general authorization levels set in section 504. The Chair is
of the opinion that the proviso to which the point of order is
directed places a limitation upon that Executive discretion as
contained in the basic act and is therefore legislation on an
appropriation bill that is not in order under the rule.
The Chair therefore sustains the point of order.
Requiring Detailed Annual Report
Sec. 55.4 Language in a general appropriation bill requiring the
President to report to Congress at least semiannually on certain
expenditures of funds under the bill, and detailing the type of
justification the President must make in that report, was held to
impose new affirmative duties on the President and was ruled out on
a point of order.
On June 4, 1970,(1) during consideration in the
Committee of the Whole of the foreign assistance appropriation bill
(H.R. 17867), a point of order was raised against the following
provisions:
---------------------------------------------------------------------------
1. 116 Cong. Rec. 18405, 91st Cong. 2d Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
Sec. 108. Any expenditure made from funds provided in this
title for procurement outside the United States of any
commodity in bulk and in excess of $100,000 shall be reported
to the Senate and House of Representatives at least twice
annually: Provided, That each such report shall state the
reasons for which the President determined, pursuant to
criteria set forth in section 604(a) of the Foreign Assistance
Act of 1961, as amended, that foreign procurement will not
result in adverse effects upon the economy of the United States
or the industrial mobilization base which outweigh the economic
or other advantages to the United States of less costly
procurement outside the United States.
Mr. [E. Ross] Adair [of Indiana]: Mr. Chairman, I make a point
of order against section 108.
The Chairman: (2) The gentleman will state it.
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2. Hale Boggs (La.).
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Mr. Adair: This is legislation in an appropriation bill. It
requires a report to the Congress of all procurements of more than
$100,000 made outside of the United States and prescribes the type
of justification that the President must give. Thus, in my opinion,
it is clearly legislation.
Furthermore, Mr. Chairman, to answer a point that has been made
earlier by the gentleman from Ohio, this same general subject
matter is in existing law in section 604 of the Foreign Assistance
Act, where again, in my opinion, it is set forth more fully and
effectively.
The Chairman: Does the gentleman from Louisiana desire to be
heard on the point of order?
Mr. [Otto E.] Passman [of Louisiana]: Mr. Chairman, we ask for
a ruling.
[[Page 6144]]
The Chairman: The Chair is prepared to rule. The language in
question, the significant part of it, section 108:
Any expenditure made from funds provided in this title for
procurement outside the United States of any commodity in bulk
and in excess of $100,000 shall be reported to the Senate and
the House of Representatives at least twice annually:
That, obviously, is an imposition of new duties upon the
Executive and it clearly falls within the prohibition of section
XXI, clause 2.
Therefore, the Chair sustains the point of order.
Imposing Duties as Condition Precedent to Funding
Sec. 55.5 To a general appropriation bill containing funds for foreign
assistance, an amendment restricting the availability of funds
therein for certain countries until the President reports to
Congress his determination that such country does not deny or
impose more than nominal restrictions on the right of its citizens
to emigrate was held to impose additional duties on the President
and was ruled out as legislation in violation of Rule XXI clause 2.
On Dec. 11, 1973,(3) during consideration in the
Committee of the Whole of the Foreign Assistance Appropriation Act
(H.R. 11771), a point of order was raised against the following
amendment:
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3. 119 Cong. Rec. 40871, 93d Cong. 1st Sess.
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Mr. [Richard H.] Ichord [of Missouri]: Mr. Chairman, I offer an
amendment.
The Clerk read as follows:
Amendment offered by Mr. Ichord: Page 18, line 10, strike
out the period and insert in lieu thereof the following: ``;
except that no funds shall be obligated or expended under this
paragraph, directly or indirectly, for the use or benefit of
any nonmarket economy country (other than any such country
whose products are eligible for column 1 tariff treatment on
the date of the enactment of this Act) until the President
makes a report to the Congress on his determination that such
country does not (1) deny its citizens the right or opportunity
to emigrate; (2) impose more than a nominal tax on emigration
or on the visas or other documents required for emigration, for
any purpose or cause whatsoever; or (3) impose more than a
nominal tax, levy, fine, fee, or other charge on any citizen as
a consequence of the desire of such citizen to emigrate to the
country of his choice.''
Mr. [Otto E.] Passman [of Louisiana]: Mr. Chairman, I make a
point of order against the amendment in that it requires a
Presidential determination and is legislation on an appropriation
bill.
The Chairman: (4) Does the gentleman from Missouri
wish to be heard on the point of order?
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4. Charles M. Price (Ill.).
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Mr. Ichord: I do, Mr. Chairman.
Mr. Chairman, I would hope that the gentleman from Louisiana
would with
[[Page 6145]]
draw his point of order, because the amendment which I offer is
exactly the Vanik amendment which has been adopted by the House by
a vote of 4 to 1.
Mr. Chairman, I submit that the amendment is in order, and I
refer the Chair to Hinds' Precedents, section 3942. An amendment
which was submitted to an appropriation bill, to an agricultural
appropriation bill, provided that no part of the appropriation
shall be available for the agricultural college of Utah until the
Secretary of Agriculture shall be satisfied and shall so certify to
the Secretary of the Treasury that no trustee, officer, instructor,
and so forth, is engaged in the practice of polygamy.
That required a certification by the Secretary of Agriculture,
Mr. Chairman. This requires a certification by the President that
certain nations do not deny the rights of immigration to their
citizens. It is a certification and report on the basis of that
precedent, and I submit, Mr. Chairman, that the amendment is in
order. If not, I have another amendment at the desk which will be
in order, on trade to Russia. . . .
The Chairman: The Chair is ready to rule. The amendment
requires the President to make a report to the Congress on his
determination that a certain country does not deny its citizens the
right or opportunity to emigrate, impose more than a nominal tax on
emigration, and certain other factors.
This evidently places additional duties upon the President and
requires new determinations. A similar amendment was ruled out as
legislation when the foreign aid appropriation bill was considered
in 1972. The Chair holds that the amendment is legislation on an
appropriation bill and sustains the point of order.
Parliamentarian's Note: This ruling is another indication, similar
to the ruling in Sec. 52.2, supra, that the precedent cited in 4 Hinds'
Precedents Sec. 3942 has been overruled.
Imposing Presidential Determination of Military Procurement Policies
Sec. 55.6 A provision in a foreign aid appropriation bill requiring the
President to consider a recipient country's military procurement
policies before furnishing assistance under that act or under the
Agricultural Trade Development and Assistance Act was held to
require additional duties on the part of the President and was
ruled out on a point of order.
On June 4, 1970,(5) during consideration in the
Committee of the Whole of the foreign assistance appropriation bill
(H.R. 17867), a point of order was raised against the following
provision:
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5. 116 Cong. Rec. 18408, 18409, 91st Cong. 2d Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
Sec. 120. (a) In order to restrain arms races and
proliferation of so
[[Page 6146]]
phisticated weapons, and to insure that resources intended for
economic development are not diverted to military purposes, the
President shall take into account before furnishing development
loans, Alliance loans, or supporting assistance to any country
under this Act, and before making sales under the Agricultural
Trade Development and Assistance Act of 1954, as amended:
(1) the percentage of the recipient or purchasing country's
budget which is devoted to military purposes;
(2) the degree to which the recipient or purchasing country
is using its foreign exchange resources to acquire military
equipment; and
(3) the amount spent by the recipient or purchasing country
for the purchase of sophisticated weapons systems, such as
missile systems and jet aircraft for military purposes, from
any country.
Mr. [Clement J.] Zablocki [of Wisconsin]: Mr. Chairman, I make
a point of order against section 120. It clearly constitutes
detailed legislative provisions in an appropriation. Furthermore,
in essence and detail, its language is already in existing law--
section 620(s) of the Foreign Assistance Act. . . .
The Chairman: (6) . . . Does the gentleman from
Louisiana care to be heard on the point of order?
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6. Hale Boggs (La.).
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Mr. [Otto E.] Passman [of Louisiana]: Mr. Chairman, I ask for a
ruling.
The Chairman: The Chair is prepared to rule.
Again a careful reading will show that the President is
directed to take into account various considerations, all of which
constitute legislation on an appropriation bill.
Therefore, the Chair sustains the point of order.
Presidential Determination of Soviet Troop Reductions
Sec. 55.7 To an amendment to the Department of Defense appropriation
bill, prohibiting the use of funds in that act in excess of a
specified amount for support of U.S. Armed Forces in Europe, an
amendment providing that the limitation shall cease to apply if the
President determines that the Soviet Union has not made comparable
withdrawals of forces from the Mideast following the reduction of
U.S. troop strength in Europe was held to impose additional
affirmative duties upon the President and was ruled out in
violation of Rule XXI clause 2.
On Oct. 8, 1970,(7) during consideration in the
Committee of the Whole of the Defense Department appropriation bill
(H.R. 19590), a point of order was raised against the following
amendment:
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7. 116 Cong. Rec. 35822, 35826, 91st Cong. 2d Sess.
---------------------------------------------------------------------------
Mr. [Edward G.] Biester [Jr., of Pennsylvania]: Mr. Chairman, I
offer an amendment.
[[Page 6147]]
The Clerk read as follows:
Amendment offered by Mr. Biester: on page 45, line 5,
insert the following new section and renumber succeeding
sections:
``Sec. 844. After June 1, 1971, no part of the funds
appropriated in this Act shall be expended for the support of
United States Armed Forces assigned to the United States
European Command in excess of 270,000 members.''. . .
Mr. [Jonathan B.] Bingham [of New York]: Mr. Chairman, I offer
an amendment to the amendment.
The Clerk read as follows:
Amendment offered by Mr. Bingham to the amendment offered
by Mr. Biester: Delete the period at the end of the sentence
and insert: ``except that this limitation shall not apply if
the President shall determine, after the United States Armed
Forces assigned to the United States European Command have been
reduced to the level of 290,000, that the Soviet Union has made
no comparable withdrawal of forces from the countries of
Eastern Europe to the territory of the Soviet Union itself.''
Mr. [George H.] Mahon [of Texas]: Mr. Chairman, I make a point
of order against the amendment on the ground that it requires a
determination on the part of the President.
The Chairman Pro Tempore: (8) The Chair has read the
amendment and is of the opinion that it does require determinations
and additional duties on the part of the President and, therefore,
the Chair sustains the point of order.
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8. Charles M. Price (Ill.).
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Presidential Certification Following Investigation of British Aid to
Arab League
Sec. 55.8 To the foreign aid appropriation bill, an amendment providing
that no part of the funds shall be paid to Great Britain until the
President, after investigation, certifies that Great Britain is not
selling war material to the Arab League was held to be legislation
on an appropriation bill and therefore not in order.
On June 4, 1948,(9) during consideration in the
Committee of the Whole of the foreign aid appropriation bill (H.R.
6801), a point of order was raised against the following amendment:
---------------------------------------------------------------------------
9. 94 Cong. Rec. 7207, 7208, 80th Cong. 2d Sess.
---------------------------------------------------------------------------
Mr. [Walter A.] Lynch [of New York]: Mr. Chairman, I offer an
amendment.
The Clerk read as follows:
Amendment offered by Mr. Lynch: Strike out the period on
line 16, page 3, after the figures 1948 and insert a colon and
add the following words: ``And provided further, That no part
of the funds appropriated herein shall be paid over or
transferred or placed to the credit of, or otherwise made
available, directly or indirectly to Great Britain until the
President of the United States, after investigation, certifies
that he is of the opinion that Great Britain is not selling,
[[Page 6148]]
leasing, lending, or making otherwise available war material to
any member of the Arab League, and that he further certifies
that Great Britain has given to the United States Government
satisfactory assurance that it will not thereafter sell, lease,
lend, or make otherwise available war material to any member of
the Arab League, which will or may be used to render
inoperative the recommendation of the United Nations General
Assembly for the partition of Palestine made on November 29,
1947.''
Mr. [John] Taber [of New York]: Mr. Chairman, a point of order.
The Chairman: (10) The gentleman will state it.
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10. W. Sterling Cole (N.Y.).
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Mr. Taber: Mr. Chairman, this is legislation on an
appropriation bill and requires additional duties of officials of
the United States. . . .
The Chairman: The amendment offered by the gentleman from New
York contains a limitation upon an appropriation bill and also
embodies legislation; therefore the Chair sustains the point of
order.
Requiring Presidential Proclamation of Foreign Aggression
Sec. 55.9 To a bill making appropriations for foreign aid, an amendment
providing that all sums granted or used under the Act shall be
reduced by any and all sums granted where such country is engaged
in acts of aggression as determined by proclamation of the
President or by the United Nations, was held to be legislation on
an appropriation bill and therefore not in order.
On June 4, 1948,(11) during consideration in the
Committee of the Whole of the foreign aid appropriation bill (H.R.
6801), a point of order was raised against the following amendment:
---------------------------------------------------------------------------
11. 94 Cong. Rec. 7209, 80th Cong. 2d Sess.
---------------------------------------------------------------------------
Mr. [Abraham J.] Multer [of New York]: Mr. Chairman, I offer an
amendment.
The Clerk read as follows:
Amendment offered by Mr. Multer: On page 3, line 16, after
``1948'' insert ``And provided further, That all sums granted,
lent or used to or for any country under this act shall be
reduced by any and all sums granted, lent or used directly or
indirectly by or for such country to or for the account or
benefit of any country, State, or people engaged directly or
indirectly in acts of aggression as determined by proclamation
of the President of the United States of America or by the
United Nations.''
Mr. [John] Taber [of New York]: Mr. Chairman, I make the point
of order that this is legislation on an appropriation bill, and
requires additional duties of officers of the United States. . . .
The Chairman: (12) The Chair is ready to rule.
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12. W. Sterling Cole (N.Y.).
---------------------------------------------------------------------------
In the opinion of the Chair, the amendment offered by the
gentleman from New York contains legislation
[[Page 6149]]
and, therefore, is subject to a point of order. The Chair sustains
the point of order.
No Funds for Nations Proclaimed to be Aggressors as Determined by
President
Sec. 55.10 To a bill making appropriations for foreign aid, an
amendment providing that no part be paid to any country which the
President proclaims to be an aggressor or a participant in an
aggression was conceded to be subject to a point of order as
legislation.
On June 4, 1948,(13) the Committee of the Whole was
considering H.R. 6801, a bill making appropriations for foreign aid.
The Clerk read as follows:
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13. 94 Cong. Rec. 7189, 7190, 80th Cong. 2d Sess.
---------------------------------------------------------------------------
Be it enacted, That the following sums are appropriated, out of
any money in the Treasury not otherwise appropriated, for foreign
aid for the period beginning April 3, 1948, and ending June 30,
1949, and for other purposes, namely: . . .
Mr. [Emanuel] Celler [of New York]: Mr. Chairman, I offer an
amendment.
The Clerk read as follows:
Amendment offered by Mr. Celler: Page 1, line 6, after the
word ``purposes'', strike out the comma and the word ``namely''
and insert ``on condition, however, that no moneys authorized
for appropriation hereunder shall be paid or credited to any
country which participates in or aids in acts of aggression,
such acts of aggression to be determined by proclamation by the
President of the United States, namely.''
Mr. [John] Taber [of New York]: Mr. Chairman, I make a point of
order against the amendment that it is legislation on an
appropriation bill and that it is not in order at this point in the
bill and not germane.
The Chairman: (14) Does the gentleman from New York
desire to be heard on the point of order?
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14. W. Sterling Cole (N.Y.).
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Mr. Celler: I agree to the point of order, Mr. Chairman.
The Chairman: The point of order is sustained.
New Discretionary Authority Bestowed on President
Sec. 55.11 To a supplemental appropriation bill for defense aid to
foreign governments, an amendment prohibiting expenditure of such
appropriation unless such government transfer collateral security
deemed by the President to be satisfactory, was held to be
legislation.
On Mar. 19, 1941,(15) the following proceedings took
place:
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15. 87 Cong. Rec. 2376, 77th Cong. 1st Sess.
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Amendment offered by Mr. [John M.] Vorys of Ohio: On page 4,
between
[[Page 6150]]
lines 15 and 16, insert a new section, as follows:
``Sec. 4. No part of any appropriation made by this act shall
be used to procure defense articles for any foreign government
which has not made arrangements, prior to receiving such articles,
in order to protect the economic and financial interest of the
United States, to reimburse the United States for the cost of such
defense articles, or to guarantee such reimbursement by
transferring, or causing to be transferred, to the United States
property deemed by the President to be satisfactory collateral
security for such reimbursement, insofar as the President shall
find that such government has property available for such
purpose.''
Mr. [Clifton A.] Woodrum of Virginia: Mr. Chairman, I make the
point of order against the amendment that it is not a limitation.
It is phrased, generally speaking, as a limitation, but on careful
analysis the Chair will see it is not a limitation in that it is
not a complete negative, and to be a limitation it must be a
complete negative. . . .
The Chairman: (16) The gentleman from Ohio has
offered an amendment as a new section to the bill. The amendment is
in the form of a limitation, but in the opinion of the Chair, in
essence, it clearly is legislative in its character. It is not
sufficient for an amendment to be in the form of a limitation. In
view of the fact that the amendment as offered by the gentleman
from Ohio very clearly imposes an additional duty on the President
of the United States, the Chair is of the opinion that the
amendment is a limitation only in form and that it is legislation
upon an appropriation bill and therefore sustains the point of
order.
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16. Fritz G. Lanham (Tex.).
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Earmarking Funds for Use as President May Direct
Sec. 55.12 Language in an appropriation bill earmarking some of the
appropriations for the Veterans' Administration for use as the
President may direct for a special study of the compensation and
pensions program was conceded to be legislation and held not in
order.
On Mar. 30, 1955,(17) during consideration in the
Committee of the Whole of the independent offices appropriation bill
(H.R. 5240), a point of order was raised against the following
provision:
---------------------------------------------------------------------------
17. 101 Cong. Rec. 4070, 84th Cong. 1st Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
General operating expenses: For necessary operating
expenses of the Veterans' Administration, not otherwise
provided for, including expenses incidental to securing
employment for war veterans . . . $155 million, of which (a)
$15,150,000 shall be available for such expenses as are
necessary for the loan guaranty program, and (b) $300,000 shall
be available as the President may direct for a special study of
the compensation and pensions program: Provided, That no part
of this appropriation shall be used to pay in excess of 20
persons engaged in public relations work. . . .
[[Page 6151]]
Mr. [Wright] Patman [of Texas]: Mr. Chairman, I make a point of
order against the language starting at the end of line 10, page 28,
reading ``$300,000 shall be available as the President may direct
for a special study of the compensation and pensions program.''
Mr. [Albert] Thomas [of Texas]: Mr. Chairman, I concede the
point.
The Chairman: (18) The Chair is ready to rule. This
is obviously legislation on an appropriation bill, and the point of
order is sustained.
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18. Albert Rains (Ala.).
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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. 56. Determination of National Interest
Military Assistance; Presidential Determination and Report
Sec. 56.1 In a paragraph of a foreign aid appropriation bill providing
funds for military assistance, language prohibiting use of those
funds for the furnishing of sophisticated weapons systems to
certain countries ``unless the President determines that the
furnishing of such weapons systems is important to the national
security of the United States and reports within thirty days each
such determination to the Congress'' was ruled out as legislation
on an appropriation bill in violation of Rule XXI clause 2.
On June 4, 1970,(19) during consideration in the
Committee of the Whole of the foreign assistance appropriation bill
(H.R. 17867), a point of order was raised against the following
provision:
---------------------------------------------------------------------------
19. 116 Cong. Rec. 18400, 18401, 91st Cong. 2d Sess.
---------------------------------------------------------------------------
Military Assistance
Military assistance: For expenses authorized by section 504(a)
of the Foreign Assistance Act of 1961, as amended, including
administrative expenses and purchase of passenger motor vehicles
for replacement only for use outside of the United States,
$350,000,000: Provided, That none of the funds contained in this
paragraph shall be available for the purchase of new automotive
vehicles outside of the United States: Provided further, That none
of the funds appropriated in that paragraph shall be used to
furnish sophisticated weapons systems, such as missile systems and
jet aircraft for military purposes, to any underdeveloped country
other than Greece, Turkey, the Republic of China, the Philippines,
and Korea, unless the President determines that the furnishing of
such weapons systems is important to the national security of the
United States and reports within thirty days each such
determination to the Congress: Provided further, That the military
assistance program for any country shall not be increased beyond
twenty per centum of the amount justi
[[Page 6152]]
fied to the Congress, unless the President determines that an
increase in such program is essential to the national interest of
the United States and reports each such determination to the House
of Representatives and the Senate within thirty days after each
such determination: Provided further, That the Excess Defense
Articles program for any country shall not be increased beyond
twenty per centum of the amount presented to the Congress.
Mr. [Clement J.] Zablocki [of Wisconsin]: Mr. Chairman, I make
a point of order against the language of the proviso contained in
lines 1 through 9 on page 6. This is patently legislation in an
appropriation bill. It is not a limitation of funds. It does direct
the Executive that funds cannot be appropriated for or furnished to
support sophisticated weapons, with certain exceptions listed.
Mr. Chairman, similar provisions and restrictions are contained
in sections 504 and 520(s) of the Foreign Assistance Act, and also
section 35 of the Military Sales Act.
Therefore, Mr. Chairman, I say this is legislation on an
appropriation bill and is unnecessary because of similar provisions
in the Authorization Act.
The Chairman: (20) Does the gentleman from Louisiana
desire to be heard on the point of order?
---------------------------------------------------------------------------
20. Hale Boggs (La.).
---------------------------------------------------------------------------
Mr. [Otto E.] Passman [of Louisiana]: Mr. Chairman, I desire to
be heard.
The committee felt this to be a limitation, because the words
``none of the funds appropriated . . . shall be used'' appear in
this paragraph.
This provision was added by the committee to the foreign
assistance appropriation bill for fiscal year 1968 in order to stop
underdeveloped countries from buying sophisticated weapons systems
with U.S. grant-aid funds. The provision was subsequently modified
to encourage countries away from arms races. We believe it is a
limitation and we ask for a ruling.
Mr. [Silvio O.] Conte [of Massachusetts]: Mr. Chairman, I
desire to be heard on the point of order.
This is an amendment that I had offered and it has been in the
bill for 4 years now. I believe it comes within the Holman rule. It
is a retrenchment of Federal expenditures. It is negative in
nature. It is germane, and I do not see where it imposes any
addition or affirmative duties on anyone. I think the point of
order should be ruled against.
The Chairman: The Chair is prepared to rule.
On September 20, 1966, a point of order was sustained against
language which was contained in a foreign aid appropriation bill
prohibiting aid to any nation that sells or permits ships on its
registry to transport cargo to North Vietnam and containing the
phrase ``unless the President determines.'' The important language
there is ``unless the President determines.'' The language here
appears to be identical, and the Chair sustains the point of order.
Economic Assistance; Presidential Determination and Report
Sec. 56.2 Language in a general appropriation bill directing
[[Page 6153]]
the President to withhold economic assistance to certain countries
in an amount equivalent to that spent by those countries for
sophisticated military equipment, unless the President determines
and reports to Congress that such expenditures are important to the
security of the United States, was ruled out as legislation in
violation of Rule XXI clause 2.
On June 4, 1970,(1) during consideration in the
Committee of the Whole of the foreign assistance appropriation bill
(H.R. 17867), a point of order was raised against the following
provision:
---------------------------------------------------------------------------
1. 116 Cong. Rec. 18408, 91st Cong. 2d Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
Sec. 119. The President is directed to withhold economic
assistance in an amount equivalent to the amount spent by any
underdeveloped country for the purchase of sophisticated
weapons systems, such as missile systems and jet aircraft for
military purposes from any country other than Greece, Turkey,
the Republic of China, the Philippines, and Korea, unless the
President determines that such purchase or acquisition of
weapons systems is important to the national security of the
United States and reports within thirty days each such
determination to the Congress.
Mr. [Clement J.] Zablocki [of Wisconsin]: Mr. Chairman, I make
a point of order against the language on page 14, lines 13 to 22,
section 119, that this is clearly legislation on an appropriation
bill.
It is a good provision, again, but it has no legitimate place
in an appropriation bill, especially when even stronger
restrictions are already contained in section 520(s) of the
existing Foreign Assistance Act. . . .
Mr. [Clarence D.] Long of Maryland: . . . This amendment is in
the nature of a limitation which would withhold an equivalent
amount of aid in cases where underdeveloped countries otherwise
recipients of U.S. aid undertake to make purchases of sophisticated
weapons systems with their own funds. This limitation applies
solely to the appropriation under consideration and does not
operate beyond the fiscal year in which the appropriation is made.
. . . Under the rules and precedents, limitations may be written
into appropriations bills. As Chairman Dingley, of Maine, wrote in
1896:
The House in Committee of the Whole has the right to refuse
to appropriate for any object, either in whole or in part, even
though that object may be authorized by law. That principle of
limitation has been sustained so repeatedly that it may be
regarded as a part of the parliamentary law of the Committee of
the Whole.
Asher C. Hinds, clerk to the Speaker from 1881 until 1891, and
editor of the ``Rules, Manual and Digest'' of the House of
Representatives in 1899, and of ``Hinds' Precedents'' in 1908:
Thus the power of limitation is solely a negative power,
capable of setting up a barrier, and not a positive power,
capable of creative func
[[Page 6154]]
tions. The appropriation may interfere with Executive
discretion only in a negative way. It may decline to
appropriate for ships to be built in a navy yard by saying that
no part of the appropriation shall be used for that purpose.
These negative prohibitions are within the power of the
appropriation bill.
In the past, limitations have prohibited such measures as the
payment of troops stationed in certain geographical locations, the
appropriations for repair of vessels in private shipyards, and
appropriations for the return of a Reserve Force to active duty--
Cannon's Precedents.
The Chairman: (2) The Chair finds the precedent
cited is not germane. Section 119 as it is now drafted reads as
follows:
---------------------------------------------------------------------------
2. Hale Boggs (La.).
---------------------------------------------------------------------------
The President is directed to withhold economic assistance
in an amount equivalent to the amount spent by any
underdeveloped country--
And again on line 19 it says--
unless the President determines that such purchase or
acquisition of weapons systems is important to the national
security of the United States and reports within 30 days each
such determination to the Congress.
It is obviously legislation in an appropriation bill, and the
Chair sustains the point of order.
Sec. 56.3 Language in a general appropriation bill prohibiting the
furnishing of economic assistance under the Foreign Assistance Act
of 1961 to Communist Nations, unless the President determines that
withholding such aid would jeopardize the national security,
reports that determination to Congress and publishes it in the
Federal Register, was held similar but not identical to the
prohibition contained in the authorizing legislation and was
therefore ruled out as imposing additional duties on the President.
On June 4, 1970,(3) during consideration in the
Committee of the Whole of the foreign assistance appropriation bill
(H.R. 17867), a point of order was raised against the following
provision:
---------------------------------------------------------------------------
3. 116 Cong. Rec. 18405, 91st Cong. 2d Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
(b) No economic assistance shall be furnished to any
nation, whose government is based upon that theory of
government known as communism, under the Foreign Assistance Act
of 1961, as amended (except section 214(b)), unless the
President determines that the withholding of such assistance
would be contrary to the national interest and reports such
determination to the House of Representatives and the Senate.
Reports made pursuant to this subsection shall be published in
the Federal Register within seven days of submission to the
Congress and shall contain a statement by the President of the
reasons for such determination.
[[Page 6155]]
Mr. [Donald M.] Fraser [of Minnesota]: Mr. Chairman, I rise to
make a point of order.
The Chairman: (4) The gentleman will state his point
of order.
---------------------------------------------------------------------------
4. Hale Boggs (La.).
---------------------------------------------------------------------------
Mr. Fraser: Mr. Chairman, I make a point of order against
section 109, paragraph (b). The provision forbids any economic
assistance to Communist countries. As with reference to the
previous paragraph, this one is duplicative of section 620(f). In
fact, it is far less precise than the provision contained in the
authorizing legislation. Therefore, I make the point of order that
the language in section 109, paragraph (b) constitutes legislation
in an appropriation measure.
The Chairman: Does the gentleman from Louisiana wish to be
heard on the point of order?
Mr. [Otto E.] Passman [of Louisiana]: Mr. Chairman, I ask for a
ruling.
The Chairman: The Chair is prepared to rule.
The language is similar but is not identical to the Foreign
Assistance Act of 1961. It imposes new duties upon the President of
the United States and as such clearly falls within the prohibition
of rule XXI, clause 2.
The Chair sustains the point of order.
Parliamentarian's Note: The provisions of the authorizing
legislation stated:
(f) No assistance shall be furnished under this chapter, as
amended, (except section 2174(b) of this title) to any Communist
country. This restriction may not be waived pursuant to any
authority contained in this chapter unless the President finds and
promptly reports to Congress that: (1) such assistance is vital to
the security of the United States; (2) the recipient country is not
controlled by the international Communist conspiracy; and (3) such
assistance will further promote the independence of the recipient
country from international communism. For the purposes of this
subsection, the phrase ``Communist country'' shall include
specifically, but not be limited to, the following countries:
Peoples Republic of Albania, Peoples Republic of Bulgaria, Peoples
Republic of China (and other named countries).
See Public Law No. 87-195 as amended by Public Law No. 87-565,
Sec. 301(d)(3).
No Aid to United Arab Republic Unless President Determines
Sec. 56.4 A provision in a foreign aid appropriation bill prohibiting
assistance under that bill for the United Arab Republic ``unless
the President determines that such availability is essential to the
national interest of the United States'' was held to be legislation
and was ruled out on a point of order.
On June 4, 1970,(5) during consideration in the
Committee of the
[[Page 6156]]
Whole of the foreign assistance appropriation bill (H.R. 17867), a
point of order was raised against the following provision:
---------------------------------------------------------------------------
5. 116 Cong. Rec. 18406, 91st Cong. 2d Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
Sec. 117. None of the funds appropriated or made available
in this Act for carrying out the Foreign Assistance Act of
1961, as amended, shall be available for assistance to the
United Arab Republic, unless the President determines that such
availability is essential to the national interest of the
United States. . . .
Mr. [Clement J.] Zablocki [of Wisconsin]: Mr. Chairman, I rise
to a point of order.
The Chairman: (6) The gentleman will state the point
of order.
---------------------------------------------------------------------------
6. Hale Boggs (La.).
---------------------------------------------------------------------------
Mr. Zablocki: Mr. Chairman, I make the point of order against
section 117 on the ground that it constitutes legislation in an
appropriation bill.
It is almost identical with the prohibitions contained in
section 620(p) of the existing Foreign Assistance Act.
The Chairman: The Chair is prepared to rule.
The language on page 13, line 19, ``unless the President
determines,'' is clearly legislation on an appropriation bill and
clearly violates clause 2 of rule XXI.
The Chair sustains the point of order.
Nations Assisting Cuba; No Aid Unless President Determines
Sec. 56.5 Language in a general appropriation bill which specifies that
no part of funds therein shall be available to nations providing
assistance to the Castro regime in Cuba ``unless the President
determines that the withholding . . . would be contrary to the
national interest'' was held to impose additional burdens on the
Chief Executive and was ruled out as legislation.
On Sept. 20, 1962,(7) during consideration in the
Committee of the Whole of the foreign aid appropriation bill (H.R.
13175), the following point of order was raised:
---------------------------------------------------------------------------
7. 108 Cong. Rec. 20181, 87th Cong. 2d Sess.
---------------------------------------------------------------------------
Mr. [H. R.] Gross [of Iowa]: Mr. Chairman, I make a point of
order against the language on page 6, line 17, as follows: ``unless
the President determines that the withholding of such assistance to
such country would be contrary to the national interest.''
The Chairman: (8) The gentleman will state the point
of order.
---------------------------------------------------------------------------
8. Wilbur D. Mills (Ark.).
---------------------------------------------------------------------------
Mr. Gross: Mr. Chairman, I make a point of order against the
language I have just read on the ground that it is legislation on
an appropriation bill.
The Chairman: Does the gentleman from Louisiana desire to be
heard on the point of order?
Mr. [Otto E.] Passman [of Louisiana]: Mr. Chairman, I ask for a
ruling on the point of order.
The Chairman: The language referred to by the gentleman from
Iowa
[[Page 6157]]
against which he makes his point of order does impose additional
burdens upon the President and is therefore legislation on an
appropriation bill.
The point of order is sustained.
Nations Dealing With Cuba or North Vietnam; No Aid Unless President
Determines
Sec. 56.6 Language in a foreign aid appropriation bill prohibiting aid
(not merely limiting funds in the bill) to any nation which permits
ships under its registry to carry cargo to Cuba or North Vietnam
unless the President determines that withholding of assistance
would be contrary to the national interest and reports such
determination to Congress, was conceded to be legislation and ruled
out on a point of order.
On Sept. 20, 1966,(9) during consideration in the
Committee of the Whole of the foreign aid appropriation bill (H.R.
17788), a point of order was raised against the following provision:
---------------------------------------------------------------------------
9. 112 Cong. Rec. 23265, 23266, 89th Cong. 2d Sess.
---------------------------------------------------------------------------
The Chairman: (10) The Clerk will read.
---------------------------------------------------------------------------
10. Charles M. Price (Ill.).
---------------------------------------------------------------------------
The Clerk read as follows:
(b) No economic assistance shall be furnished under the
Foreign Assistance Act of 1961, as amended, to any country
which sells, furnishes, or permits any ships under its registry
to carry items of economic assistance to Cuba, so long as it is
governed by the Castro regime, or to North Vietnam, unless the
President determines that the withholding of such assistance
would be contrary to the national interest and reports such
determination to the Foreign Relations and Appropriations
Committees of the Senate and the Foreign Affairs and
Appropriations Committees of the House of Representatives.
Reports made pursuant to this subsection shall be published in
the Federal Register within seven days of submission to the
committees and shall contain a statement by the President of
the reasons for such determination.
Mr. [H. R.] Gross [of Iowa]: Mr. Chairman, I make a point of
order against the language on page 8, beginning with line 8, and
running through line 22.
The Chairman: The gentleman will state his point of order.
Mr. Gross: Mr. Chairman, I make a point of order against the
language on page 8, beginning with line 8 and running through line
22, as being legislation on an appropriation bill.
The Chairman: Does the gentleman from Louisiana [Mr. Passman]
desire to be heard on the point of order?
Mr. [Otto E.] Passman: Mr. Chairman, we concede the point of
order.
The Chairman: The gentleman from Louisiana concedes the point
of order.
The Chair sustains the point of order.
[[Page 6158]]
Procurement From Foreign Firms; Waiver of Restriction by President
Sec. 56.7 To a bill making appropriations for the Department of
Defense, an amendment denying the use of funds appropriated or made
available by the bill for procurement from foreign firms which
receive government subsidies thereby constituting unfair
competition, but permitting the President to waive such restriction
in the national interest with prior notice to Congress was held to
be legislation (imposing additional duties) and was ruled out on a
point of order.
On Sept. 12, 1968,(11) during consideration in the
Committee of the Whole of the Defense Department appropriation bill
(H.R. 18707), a point of order was raised against the following
amendment:
---------------------------------------------------------------------------
11. 114 Cong. Rec. 26563, 26564, 90th Cong. 2d Sess.
---------------------------------------------------------------------------
Mr. [Durward G.] Hall [of Missouri]: Mr. Chairman, I offer an
amendment.
The Clerk read as follows:
Amendment offered by Mr. Hall: On page 44, after line 14,
add a new section 542, as follows:
``. . . None of the funds which are appropriated or made
available for expenditure by this Act for the procurement of
aircraft or major components thereof, shall be expended outside
the United States in any instance with a foreign firm which is
the recipient of direct foreign government products development
support, which would constitute unfair competition for any
United States firm which has a similar product, capability, or
proposal. This limitation is waived for continuing prior year's
procurement actions; and further, this limitation may be waived
on determination of necessity in the national interest by the
President on prior notification of the House and Senate.''
And renumber the subsequent section accordingly. . . .
Mr. [George H.] Mahon [of Texas]: Mr. Chairman, I rise to make
a point of order, regretfully, because I have the highest esteem
for the gentleman from Missouri.
In the first place, the amendment states: ``shall be expended
outside the United States in any instance with a foreign firm which
is the recipient of direct foreign government product development
support.'' A determination as to whether or not a foreign firm is
the recipient of a direct foreign government subsidy will be
difficult. This would place a special burden on the executive.
Then proceeding further it says: ``which would constitute
unfair competition for any U.S. firm which has a similar product,
capability, or proposal.'' Here determinations also would have to
be made with respect to these matters.
Now proceeding with the next sentence it says: ``This
limitation is waived for continuing and prior year's procurement
actions.'' This is clearly
[[Page 6159]]
legislation on an appropriation bill, just as the previous portions
which I have read.
Under all of the circumstances, I make the point of order that
this is legislation on an appropriation bill and requires extra
duties to be placed on those who administer it.
Mr. Hall: Mr. Chairman, I wish to be heard on the point of
order.
I submit that this point of order should not be sustained and
should be overruled, because this is a simple limitation on
expenditures under the general provisions of this bill which has
many additional general provisions limiting expenditures. I think
anyone in this Chamber knows that any Government procurement
officer and particularly those Government procurement officers who
work for the armed services know immediately--and, in fact, it is
an open record--when there is a foreign subsidy. That is exactly
what is meant by waiver clauses in the amendment which I reread
once and which I will not bore the Members with again.
Insofar as direct subsidy appropriations by a foreign nation
are concerned, it is in no way legislation on an appropriation
bill, because it only involves techniques of ordinary procurement,
contract assignment, and negotiation within or without those who
respond to ``requests for proposals,'' in the ordinary manner of
contracting for arms. This is the very title of the bill.
I submit that the point of order should be overruled, although
I will be glad to hear any further debate on the question of the
substance of the amendment. . . .
The Chairman: (12) The Chair is ready to rule.
---------------------------------------------------------------------------
12. Daniel D. Rostenkowski (Ill.).
---------------------------------------------------------------------------
The Chair agrees with the gentleman from Texas that the
amendment contains legislation which goes beyond the form of proper
limitation, and therefore sustains the point of order.
Sales to Communist Countries; Presidential Exception
Sec. 56.8 To a bill making appropriations for the Department of
Agriculture and including funds for the Commodity Credit
Corporation, an amendment prohibiting the use of funds for export
subsidies on commodities being sold to Communist countries except
when the President determines such transaction to be in the public
interest and reports his finding to the Congress, imposed extra
duties on the President and was ruled out as legislation.
On May 20, 1964,(13) during consideration in the
Committee of the Whole of the Agriculture Department appropriation bill
(H.R. 11202), a point of order was raised against the following
amendment:
---------------------------------------------------------------------------
13. 110 Cong. Rec. 11434, 11435, 88th Cong. 2d Sess.
---------------------------------------------------------------------------
Mr. [Paul] Findley [of Illinois]: Mr. Chairman, I offer an
amendment.
The Clerk read as follows:
Amendment offered by Mr. Findley: Page 31, line 8, after
the word
[[Page 6160]]
``hereof'' strike the period, insert a colon and the following:
``Provided further, That no part of the funds herein
appropriated shall be available for any expense incident to
making export payments or export subsidies on any agricultural
commodities being sold or sold to the government of any
Communist country (as defined in section 620(f) of the Foreign
Assistance Act of 1961) or to any agency or national thereof,
except when the President determines that such guarantees would
be in the national interest and reports each such determination
to the House of Representatives and the Senate within 30 days
after such determination.''. . .
Mr. [Jamie L.] Whitten [of Mississippi]: Mr. Chairman, I make a
point of order against the amendment offered by the gentleman from
Illinois on the ground that it is legislation on an appropriation
bill.
I will say that I have not had a chance to review the
authorities, but it is my recollection during the years that I have
served in this capacity handling this bill on the floor of the
House, when any provision requires extra duties and imposes those
extra duties on the executive department, the President in this
instance, such a proposal goes beyond being a restriction on the
expenditure of money and amounts to legislation. For that reason,
Mr. Chairman, I believe the point of order should be sustained.
The Chairman: (14) Does the gentleman from Illinois
desire to be heard on the point of order?
---------------------------------------------------------------------------
14. Eugene J. Keogh (N.Y.).
---------------------------------------------------------------------------
Mr. Findley: Yes, Mr. Chairman, simply to say that in my
opinion, the amendment amounts to a limitation on the use of funds
and, therefore, comes within the rules.
The Chairman: The Chair is ready to rule.
The gentleman from Illinois [Mr. Findley] has offered an
amendment to the language appearing at page 31, line 8, to insert
the following language:
Provided further, That no part of the funds herein
appropriated shall be available for any expense incident to
making export payments or export subsidies on any agricultural
commodities being sold or sold to the government of any
Communist country (as defined in section 620(f) of the Foreign
Assistance Act of 1961) or to any agency or national thereof,
except when the President determines that such guarantees would
be in the national interest and reports each such determination
to the House of Representatives and the Senate within 30 days
after such determination.
In the opinion of the Chair, the language last read, beginning
with the words ``except when the President determines'' does impose
additional duties upon the President.
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. 57. Subject Matter: Agriculture
No Funds to Countries Engaging in Trade With North Vietnam
Sec. 57.1 To a general appropriation bill, an amendment providing that
no funds appropriated thereby shall be used to administer programs
for
[[Page 6161]]
the sale of agricultural commodities to nations that permit ships
under their registry to transport equipment to Communist North
Vietnam was held a proper limitation not imposing additional
duties.
On Apr. 26, 1966,(15) the Committee of the Whole was
considering H.R. 14596, a bill appropriating funds for the Department
of Agriculture. The following proceedings took place:
---------------------------------------------------------------------------
15. 112 Cong. Rec. 8969, 8970, 89th Cong. 2d Sess.
---------------------------------------------------------------------------
Mr. [Paul] Findley [of Illinois]: Mr. Chairman, I offer an
amendment.
The Clerk read as follows:
Amendment offered by Mr. Findley: On page 36, on line 6
strike the period, insert a colon and the following:
``Provided, That no funds appropriated by this Act shall be
used to formulate or administer programs for the sale of
agricultural commodities pursuant to titles I or IV of Public
Law 480, Eighty-third Congress, as amended, to any nation which
sells or furnishes or which permits ships or aircraft under its
registry to transport to North Vietnam any equipment, materials
or commodities, so long as North Vietnam is governed by a
Communist regime.''. . .
The Chairman: (16) Does the gentleman from
Mississippi insist upon his point of order?
---------------------------------------------------------------------------
16. Eugene J. Keogh (N.Y.).
---------------------------------------------------------------------------
Mr. [Jamie L.] Whitten [of Mississippi]: Mr. Chairman, I do.
The Chairman: The gentleman will state it.
Mr. Whitten: Mr. Chairman, it is legislation on an
appropriation bill in that it imposes new duties, new
responsibilities, and determinations beyond the ability of the
Secretary of Agriculture, who administers this program, to
determine. . . .
The Chairman: The Chair is ready to rule. . . .
The Chair would state that it is satisfied that established
precedents [justify] its holding the language of the proposed
amendment as a limitation on the appropriation, and therefore
overrules the point of order.
Allocation of State Agricultural Funds; Grant of Authority Instead of
Negative Restriction
Sec. 57.2 Language in an appropriation bill providing that the county
agricultural conservation committee in any county ``with the
approval of the State committee'' may allot not to exceed five per
centum of its allocation for the agricultural conservation program
to the Soil Conservation Service for services of its technicians in
carrying out the program, was held to be legislation and not in
order.
On Apr. 27, 1950,(17) during consideration in the
Committee of the
[[Page 6162]]
Whole of H.R. 7786 (Department of Agriculture chapter, general
appropriation bill, 1951), a point of order was raised against the
following provision:
---------------------------------------------------------------------------
17. 96 Cong. Rec. 5914, 5915, 81st Cong. 2d Sess.
---------------------------------------------------------------------------
Mr. [Fred] Marshall [of Minnesota]: Mr. Chairman, I make the
point of order against the following language beginning in line 17
on page 191--
Provided further, That the county agricultural conservation
committee in any county with the approval of the State
committee may allot not to exceed 5 percent of its allocation
for the agricultural conservation program to the Soil
Conservation Service for services of its technicians in
formulating and carrying out the agricultural conservation
program and the funds so allotted shall be utilized by the Soil
Conservation Service for technical and other assistance in such
county--
That it is legislation on an appropriation bill. The language
contained in these lines has to do with the administration of the
programs in two separate agencies of the Department of Agriculture,
which ought to come before a proper legislative committee to have
legal determination made. . . .
The Chairman:(18) The Chair is prepared to rule.
---------------------------------------------------------------------------
18. Jere Cooper (Tenn.).
---------------------------------------------------------------------------
The gentleman from Minnesota [Mr. Marshall] has made a point of
order against the language appearing in that section of the bill on
page 191 beginning with the word ``Provided'' in line 17, and
continuing through the remainder of that paragraph down to and
including the word ``county'' in line 25, on the ground that it
includes legislation on an appropriation bill in violation of the
rules of the House.
The Chair has examined the language here in question and is of
the opinion that it could be drawn so as to constitute a
limitation, but as the language appears now in the bill it does
appear to the Chair that it contains legislation. The Chair, of
course, has to pass on the question as it is here presented and
invites attention to the fact that among other things it includes
the words ``with the approval.'' It appears to the Chair that the
language quoted does include legislation on an appropriation bill
in violation of the rules of the House.
The point of order is sustained.
Parliamentarian's Note: A subsequent amendment to the bill that day
providing, inter alia, that ``not to exceed 5 percent of the allocation
for the agricultural conservation program for any county may be
allocated to the Soil Conservation Service'' for services of its
technicians in carrying out the agricultural conservation program, was
held to be a limitation restricting the availability of funds and
therefore in order. See Sec. 67.13, infra.
Price Support Program; Limiting Payments But Requiring New Duties
Sec. 57.3 To a general appropriation bill, an amendment limiting the
use of funds for payments to farmers but at
[[Page 6163]]
the same time providing definitions, new authorizations, and
imposing additional duties on the Secretary of Agriculture was
ruled out as legislation.
On June 6, 1961,(19) during consideration in the
Committee of the Whole of the Agriculture Department appropriation bill
(H.R. 7444), a point of order was raised against the following
amendment:
---------------------------------------------------------------------------
19. 107 Cong. Rec. 9626, 9627, 87th Cong. 1st Sess.
---------------------------------------------------------------------------
Mr. [William H.] Avery (of Kansas): Mr. Chairman, I offer an
amendment.
The Clerk read as follows:
Amendment offered by Mr. Avery: On page 33, line 22, strike
out the period, and add ``: Provided further, (1) That no part
of this authorization shall be used to formulate or carry out a
price support program for 1962 under which a total amount of
price support in excess of $50,000 would be extended through
loans, purchases, or purchase agreements made or made available
by Commodity Credit Corporation to any person on the 1962
production of all agricultural commodities, (2) That the term
``person'' shall mean an individual, partnership, firm, joint-
stock company, corporation, association, trust, estate, or
other legal entity, or a State, political subdivision of a
State, or any agency thereof, (3) That in the case of any loan
to, or purchase from, a cooperative marketing organization,
such limitation shall not apply to the amount of price support
received by the cooperative marketing organization, but the
amount of price support made available to any person through
such cooperative marketing organization shall be included in
determining the amount of price support received by such person
for purposes of such limitation, and (4) That the Secretary of
Agriculture shall issue regulations prescribing such rules as
he determines necessary to prevent the evasion of such
limitation''. . . .
Mr. [Jamie L.] Whitten [of Mississippi]: Mr. Chairman, I make
the point of order that the amendment is legislation on an
appropriation bill. It provides for new duties on the part of the
Secretary of Agriculture, in addition to other legislative
provisions.
The Chairman: (20) Does the gentleman from Kansas
desire to be heard on the point of order?
---------------------------------------------------------------------------
20. Paul J. Kilday (Tex.).
---------------------------------------------------------------------------
Mr. Avery: Yes, Mr. Chairman.
As I recall it, about 2 years ago right now, in 1959, I think
the distinguished gentleman from Texas was in the chair that day;
if not the gentleman from Texas presently in the chair, it was one
of his Texas colleagues. When I submitted the original amendment to
this same section of the appropriation bill, the gentleman from
Mississippi raised a point of order against the amendment. After a
considerable amount of deliberation, shall I say, the Chairman
upheld the amendment as being a further limitation on the
administrative costs of the Commodity Credit Corporation.
Therefore, the point of order was not sustained.
The Chairman: The Chair is prepared to rule.
The gentleman from Kansas offers an amendment which has been
reported. The Chair would observe it was probably this chairman who
occupied
[[Page 6164]]
the chair on the occasion the gentleman from Kansas referred to. It
was apparently on the 18th of May 1959.
The Chair did not understand the gentleman from Kansas to state
that the amendment now pending is in identical language as that
which was offered in 1959. . . .
The Chair has the language which was before the Chair in 1959,
and will read it:
Amendment offered by Mr. Avery: Page 27, line 19, strike
out the period, add a colon and insert: ``Further, no funds
appropriated in this section shall be used to process Commodity
Credit loans which are in excess of $50,000.''
The Chair points out that that language was directly, solely
and exclusively directed at the purpose for which funds being
appropriated at that time could be used.
The Chair has examined the pending amendment, and while the
first sentence of the pending amendment would indicate that it is
in the nature of a limitation, it does refer to authorizations.
This is the crux of the ruling of the Chair.
The Chair points out that the language of the amendment
contains definitions, authorizations, and imposes duties upon an
officer of the executive department. It is therefore clearly
legislation on an appropriation bill. It is not identical or, in
the opinion of the Chair, similar to the amendment offered in 1959.
The Chair is constrained to sustain the point of order.
Price Support Programs; Equating Costs to Import Quotas
Sec. 57.4 To a general appropriation bill an amendment requiring that
when funds in the bill are used to institute agricultural price
support for any commodity the Secretary of the Treasury be notified
and that he make certain adjustments on the import duty on such
commodity was conceded to be legislation and held not in order.
On May 1, 1952,(1) during consideration in the Committee
of the Whole of the Agriculture Department appropriation bill (H.R.
7314), a point of order was raised against the following amendment:
---------------------------------------------------------------------------
1. 98 Cong. Rec. 4743, 4744, 82d Cong. 2d Sess.
---------------------------------------------------------------------------
Amendment offered by Mr. [Wesley A.] D'Ewart [of Montana]: Page
45, line 16, after the word ``law'': insert the following:
``Provided, That when any funds contained in this appropriation are
used to institute agricultural price support for any commodity, the
Secretary of the Treasury shall be notified of such support program
and shall make such adjustments in the import duty on such
commodity as are necessary so that the duty paid price in United
States dollars is not less than the parity price announced by the
Secretary of Agriculture for the marketing season of the
commodity.''
Mr. [Jamie L.] Whitten [of Mississippi]: Mr. Chairman, I make
the point of order against the amendment as legislation on an
appropriation bill. I do not differ with the object of the
gentleman, but I think that it is legis
[[Page 6165]]
lation. However, I will reserve the point of order so that the
gentleman may make his presentation. . . .
The Chairman: (2) Does the gentleman concede the
point of order?
---------------------------------------------------------------------------
2. Aime J. Forand (R.I.).
---------------------------------------------------------------------------
Mr. D'Ewart: I do.
The Chairman: The point of order is sustained.
Payments to Feed Grain Producers; Limiting to Percent of Diverted
Acreage
Sec. 57.5 To a bill making appropriations for the Department of
Agriculture, an amendment limiting any payments to feed grain
producers to 20 percent of the fair market value of acreage
diverted under the Soil Conservation and Domestic Allotment Act,
was held a proper limitation imposing only incidental additional
duties on the executive branch (the requirements as to
determination of the fair market value of such acreage being
already contained in law).
On May 26, 1965,(3) the Committee of the Whole was
considering H.R. 8370. At one point the Clerk read as follows:
---------------------------------------------------------------------------
3. 111 Cong. Rec. 11656, 11657, 89th Cong. 1st Sess.
---------------------------------------------------------------------------
Mr. [Robert H.] Michel [of Illinois]: Mr. Chairman, I offer an
amendment.
The Clerk read as follows:
Page 33, line 24, after the word ``hereof'', strike the
period, insert a colon and the following: ``Provided further:
That none of the funds herein appropriated may be used to
formulate or carry out a feed grain program during the period
ending June 30, 1966, under which the total amount of payments
made to feed grain producers under section 16(h) of the Soil
Conservation and Domestic Allotment Act, as amended, and
section 105(d) of the Agriculture Act of 1949, as amended,
would be in excess of 20 per centum of the fair market value of
any acreage diverted under section 16(h) of the Soil
Conservation and Domestic Allotment Act, as amended.''
Mr. [Jamie L.] Whitten [of Mississippi]: Mr. Chairman, I
reserve a point of order. . . .
The existing law expires this year, as I understand it. Whether
it will be extended or not I do not know. The proponent of the
amendment says this extends existing law. That statement of itself
means that it is legislation. Quite definitely you cannot extend
existing law without its being legislation. On that basis, I
respectfully submit that it is legislation on an appropriation
bill. . . .
Mr. [Neal] Smith of Iowa: Mr. Chairman, I would like to point
out that the basic legislation determines the limit according to
the average yield of the land. This would determine the limit
according to the sales value of land, whether that be speculative
or productive. And it would cost an additional $9 million to make
these appraisals. This is $9 million worth of additional duties
placed upon the Secretary of Agriculture and does represent
legislation upon an appropriation bill. . . .
[[Page 6166]]
The Chairman: (4) The Chair is ready to rule. . . .
---------------------------------------------------------------------------
4. Eugene J. Keogh (N.Y.).
---------------------------------------------------------------------------
The Chair has carefully read the amendment offered by the
gentleman from Illinois and even though a limitation, as was stated
before, on an appropriation bill, may impose additional burdens on
the executive branch of the Government; and even though it might be
estimated that the cost of those additional burdens may run to any
amount, the Chair is of the opinion that the amendment offered by
the gentleman from Illinois is, in fact, a limitation on an
appropriation bill and therefore overrules the point of order.
Parliamentarian's Note: As indicated in Public Law No. 88-26
(subsection h) the same precise requirements for determining fair
market value of acreage diverted during the prior crop year were in law
[see 16 U.S.C. Sec. 590p(h)].
Prohibiting Commodity Storage Charges Not Determined by Competitive
Bidding
Sec. 57.6 To an agricultural appropriation bill, including funds for
the Commodity Credit Corporation, an amendment prohibiting the use
of funds therein to pay storage charges on commodities owned by the
corporation, when such charges have not been determined by
competitive bidding, was held to impose additional duties on the
corporation to require competitive bidding and was ruled out as
legislation.
On May 26, 1965,(5) during consideration in the
Committee of the Whole of the Agriculture Department appropriation bill
(H.R. 8370), a point of order was raised against the following
amendment:
---------------------------------------------------------------------------
5. 111 Cong. Rec. 11654, 89th Cong. 1st Sess.
---------------------------------------------------------------------------
Mr. [Robert R.] Casey [of Texas]: Mr. Chairman, I offer an
amendment.
The Clerk read as follows:
Amendment offered by Mr. Casey: On page 33, immediately
before the period at the end of line 2, insert the following:
``: Provided further, That no part of the funds appropriated by
this Act shall be used for the payment of charges for storage
of any agriculture commodity belonging to the Commodity Credit
Corporation which charges have not been determined by
competitive bidding.''
Mr. [Jamie L.] Whitten [of Mississippi]: Mr. Chairman, I make a
point of order against the amendment. . . .
Mr. Chairman, the amendment, quite patently, would require
extra work on the part of the employees of the Department. They
would have to make a finding as to what part had been made by
competitive bidding and what part had not. Since the present law
does not require competitive bidding, it would require different
duties from that required under existing law. For that reason, I
think the amendment is legislating in an appropriation bill.
[[Page 6167]]
The Chairman:(6) Does the gentleman from Texas [Mr.
Casey] desire to be heard on the point of order?
---------------------------------------------------------------------------
6. Eugene J. Keogh (N.Y.).
---------------------------------------------------------------------------
Mr. Casey: Mr. Chairman, I do not mind saying that I consulted
with the Parliamentarian and I do not think my argument would be
sustained anyway and there is no use in taking the time of the
Committee in this regard.
The Chairman: Does the gentleman from Texas concede the point
of order?
Mr. Casey: No, sir; I do not concede the point of order.
Mr. Chairman, I think this is strictly a limitation on the use
of these funds and I ask the Chairman to rule at this point that it
is germane.
The Chairman: The gentleman from Texas offers an amendment
directed to page 33, line 2, which reads as follows: ``Provided
further, That no part of the funds appropriated by this Act shall
be used for the payment of charges for storage of any agricultural
commodity belonging to the Commodity Credit Corporation which
charges have not been determined by competitive bidding,'' to which
amendment the gentleman from Mississippi makes the point of order
that this imposes additional substantive duties on the Commodity
Credit Corporation, and with that contention this occupant of the
chair is in complete agreement and, therefore, sustains the point
of order.
Poultry Inspection; Authorizing and Directing
Sec. 57.7 Language in a general appropriation bill providing that the
Department of Agriculture is ``hereby authorized and directed to
make such inspection of poultry as it deems essential'' was
conceded to be legislation and was ruled out on a point of order.
On May 11, 1960,(7) during consideration in the
Committee of the Whole of the Agriculture Department appropriation bill
(H.R. 12117), a point of order was raised against the following
provision:
---------------------------------------------------------------------------
7. 106 Cong. Rec. 10032, 86th Cong. 2d Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
Marketing services: For services relating to agricultural
marketing and distribution, for carrying out regulatory acts
connected therewith, and for administration and coordination of
payments to States, $26,838,000, including not to exceed
$25,000 for employment at rates not to exceed $50 per diem,
except for employment in rate cases at not to exceed $100 per
diem pursuant to the second sentence of section 706(a) of the
Organic Act of 1944 (5 U.S.C. 574), as amended by section 15 of
the Act of August 2, 1946 (5 U.S.C. 55a), in carrying out
section 201(a) to 201(d), inclusive, of title II of the
Agricultural Adjustment Act of 1938 (7 U.S.C. 1291) and section
203(j) of the Agricultural Marketing Act of 1946: Provided,
That the Department is hereby authorized and directed to make
such inspection of poultry products processing plants as it
deems essential to the protection of public health and to
permit the use of appropriate inspection labels where it
determines from such in
[[Page 6168]]
spection that such plants operate in a manner which protects
the public health, and not less than $500,000 shall be
available for this purpose.
Mr. [John D.] Dingell [Jr., of Michigan]: Mr. Chairman, I make
a point of order against the language beginning in line 2, page 17,
commencing with the word ``Provided'', right down through the end
of that paragraph on page 17, line 9.
This constitutes legislation on an appropriation bill.
Mr. [Fred] Marshall [of Minnesota]: Mr. Chairman, I make a
point of order against the entire paragraph, beginning in line 15,
page 16, through line 9 on page 17, on the ground it is legislation
on an appropriation bill.
Mr. [Jamie L.] Whitten [of Mississippi]: Mr. Chairman, the
committee does not care to oppose the point of order. I do not
think there is any question but what points of order lie.
The Chairman: (8) The gentleman from Mississippi
concedes both points of order. The Chair sustains the point of
order of the gentleman from Minnesota and the entire paragraph is
ruled out as legislation.
---------------------------------------------------------------------------
8. Paul J. Kilday (Tex.).
---------------------------------------------------------------------------
Soil Conservation Payments; Requiring Pass-through to Sharecroppers
Sec. 57.8 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,(9) The Committee of the Whole was
considering H.R. 5269, an Agriculture Department appropriation bill.
The Clerk read as follows:
---------------------------------------------------------------------------
9. 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
limita
[[Page 6169]]
tion 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 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: (10) Cannon's Precedents, page 667,
volume 7, 1936, section 1672, states:
---------------------------------------------------------------------------
10. 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.
Agricultural Stations in Other Countries; Requiring Certification of
Adequate Domestic Funding
Sec. 57.9 To a section of an appropriation bill an amendment proposing
that ``no money shall be spent on agricultural stations or
experiments in other countries until the Secretary of Agriculture
certifies that such expenditure is a necessity and that
experimental work of a similar nature in the United States is
adequately financed,'' was held to be legislation and not in order.
On Apr. 7, 1949,(11) during consideration in the
Committee of the Whole of a general appropriation bill (H.R. 4016), a
point of order was raised against the following amendment:
---------------------------------------------------------------------------
11. 95 Cong. Rec. 4107, 81st Cong. 1st Sess.
---------------------------------------------------------------------------
Mr. [John] Phillips of California: Mr. Chairman, I offer an
amendment.
The Clerk read as follows:
Amendment offered by Mr. Phillips of California: Page 20,
line 10, after the word ``thereon'' and the semicolon, insert
``Provided, That no money shall be spent on agricultural
stations or experiments in other countries until the Secretary
of Agriculture certifies that such expenditure is a necessity
and that experimental work of a similar nature in
[[Page 6170]]
the United States is adequately financed.''
Mr. [John J.] Rooney [of New York]: Mr. Chairman, I make a
point of order against the proposed amendment on the ground that it
is legislation on an appropriation bill.
The Chairman: (12) Does the gentleman from
California desire to be heard on the point of order?
---------------------------------------------------------------------------
12. James W. Trimble (Ark.).
---------------------------------------------------------------------------
Mr. Phillips of California: Mr. Chairman, I contend that it is
a limitation upon the expenditure of funds because it requires that
the necessity for them and the limitation for them be provided and
certified to before the money is expended.
The Chairman: Does the gentleman from New York desire further
to be heard?
Mr. Rooney: The statement that no money shall be spent is
clearly legislation; and it imposes additional duties on the
Department, which makes it legislation.
The Chairman: The Chair is ready to rule.
The gentleman from California [Mr. Phillips] introduces certain
language requiring the Secretary of Agriculture to make certain
findings. The Chair construes that language to be legislation on an
appropriation bill in that it imposes additional duties upon the
agency involved. So, the point of order is sustained.
Farm Programs; Directing Secretary How to Administer
Sec. 57.10 Language in the Agriculture Department appropriation bill
requiring the Secretary of Agriculture to carry into effect the
provisions of the Bankhead-Jones Farm Tenant Act through the
Federal Farm Mortgage Corporation and by utilizing through
cooperative agreements the personnel and facilities of the federal
land banks and the national farm associations was conceded to be
legislation on an appropriation bill and held not in order.
On Apr. 19, 1943,(13) during consideration in the
Committee of the Whole of the Agriculture Department appropriation bill
(H.R. 2481), a point of order was raised against the following
provision:
---------------------------------------------------------------------------
13. 89 Cong. Rec. 3595, 78th Cong. 1st Sess.
---------------------------------------------------------------------------
Salaries and expenses: To enable the Secretary to carry into
effect the provisions of title I of the Bankhead-Jones Farm Tenant
Act approved July 22, 1937 (7 U.S.C. 1000-1006), and to reduce and
retrench expenditures, said act shall be administered by the
Secretary through the Federal Farm Mortgage Corporation of the Farm
Credit Administration and by utilizing through cooperative
agreements the personnel and facilities of the Federal land banks
and the national farm-loan associations, $500,000 for necessary
expenses in connection with the making of loans under title I of
this act and the collection of moneys due the
[[Page 6171]]
United States on account of loans heretofore made under the
provision of said act, including the employment of persons and
means in the District of Columbia and elsewhere, exclusive of
printing and binding as authorized by said act.
Mr. [Harold D.] Cooley [of North Carolina]: Mr. Chairman, I
make the point of order against the paragraph for the reason that
it is legislation on an appropriation bill and is not authorized by
law.
Mr. [Malcolm C.] Tarver [of Georgia]: Will the gentleman point
out what particular parts he feels are legislation?
Mr. Cooley: The entire section, from line 19, on page 89, down
to and including line 8, on page 90.
Mr. Tarver: So far as the section requires the Secretary to
carry out the duties to which reference is made in the paragraph
through the Federal Farm Mortgage Administration, of the Farm
Credit Administration, and to utilize the personnel and facilities
of the Federal land banks, it is legislation, and the committee at
the proper time will offer an amendment which will be in conformity
with the rules. We concede the point of order.
The Chairman: (14) The point of order to the
paragraph is conceded and is sustained.
---------------------------------------------------------------------------
14. William M. Whittington (Miss.).
---------------------------------------------------------------------------
Performance Bonds; Authority to Require of Contractors
Sec. 57.11 Language in the agriculture appropriation bill permitting
the Secretary of Agriculture to require bonds from market agencies
and dealers under rules he may prescribe, and authorizing the
Secretary to suspend registrants if found insolvent, was conceded
to be legislation on an appropriation bill and held not in order.
On Apr. 19, 1943, (15) during consideration in the
Committee of the Whole of the Agriculture Department appropriation bill
(H.R. 2481), a point of order was raised against the following
provision:
---------------------------------------------------------------------------
15. 89 Cong. Rec. 3586, 78th Cong. 1st Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
Packers and Stockyards Act: For carrying out the provisions
of the Packers and Stockyards Act, approved August 15, 1921, as
amended by the act of August 14, 1935 (7 U.S.C. 181-229),
$350,000: Provided, That the Secretary may require reasonable
bonds from every market agency and dealer, under such rules and
regulations as he may prescribe, to secure the performance of
their obligations, and whenever, after due notice and hearing,
the Secretary finds any registrant is insolvent or has violated
any provisions of said act, he may issue an order suspending
such registrant for a reasonable specified period. Such order
of suspension shall take effect within not less than 5 days,
unless suspended or modified or set aside by the Secretary or a
court of competent jurisdiction.
Mr. [Hampton P.] Fulmer [of South Carolina]: Mr. Chairman, I
make the
[[Page 6172]]
point of order against the language beginning with the word
``Provided'' in line 17, page 80, down to the bottom of and
including line 3 on top of page 81, that it is legislation on an
appropriation bill not authorized by law.
Mr. [Malcolm C.] Tarver [of Georgia]: Mr. Chairman, the point
of order is conceded.
The Chairman: (16) The point of order is sustained.
---------------------------------------------------------------------------
16. William M. Whittington (Miss.).
---------------------------------------------------------------------------
Distribution of Farming Materials; Requiring Secretary to Adhere to
State Laws
Sec. 57.12 An appropriation for distribution of seeds, fertilizers, or
any other farming materials, and providing that the Secretary of
Agriculture shall comply with such state laws when applicable to
such farming materials under his control, was conceded and held to
place additional duties on the Secretary of Agriculture and
therefore to comprise legislation on an appropriation bill.
On Apr. 16, 1943,(17) during consideration in the
Committee of the Whole of the Agriculture Department appropriation bill
(H.R. 2481), the following point of order was raised:
---------------------------------------------------------------------------
17. 89 Cong. Rec. 3494, 78th Cong. 1st Sess.
---------------------------------------------------------------------------
Mr. [Clifford R.] Hope [of Kansas]: Mr. Chairman, a point of
order.
The Chairman: (18) The gentleman will state it.
---------------------------------------------------------------------------
18. William M. Whittington (Miss.).
---------------------------------------------------------------------------
Mr. Hope: Mr. Chairman, I make the point of order that the
language beginning in line 23 on page 66 with the words ``Provided
further,'' and running down through the word ``control'' in line 15
on page 67 is legislation on an appropriation bill.
The Chairman: The Chair will be glad to hear the gentleman from
Kansas on his point of order.
Mr. Hope: Mr. Chairman, this proviso contains this language:
That such amount shall be available for the distribution,
through established trade channels and non-governmental
agencies, including farmers' cooperative associations, of
seeds, fertilizers, lime, trees, or any other farming
materials, or any soil-terracing services, and making grants
thereof to agricultural producers to aid them in carrying out
farming practices approved by the Secretary in the 1943, 1944,
and 1945 programs under said act of February 29, 1936, as
amended.
It further provides--
for the reimbursement of any Federal, State, or local
government agency for fertilizers, seeds, lime, trees, or other
farming materials, or any soil-terracing services, furnished by
such agency; and for the payment of all expenses necessary in
making such grants including all or part of the costs incident
to the delivery thereof, and including the payment of
inspection fees or taxes for such inspections as may be
required under State laws, and the Secretary shall comply with
such State inspection laws whenever they are applicable to any
such farming materials under his control.
[[Page 6173]]
I submit that all of that language is legislation. It imposes
additional duties upon the Secretary. It is not authorized under
any existing legislation. It further directs and orders that the
Secretary shall comply with State inspection laws whenever they are
applicable.
Mr. [Malcolm C.] Tarver [of Georgia]: Mr. Chairman, in order to
shorten the debate, may I say to the gentleman that we concede the
point of order.
The Chairman: The point of order is conceded. The point of
order is sustained.
Discretion to Transfer Property
Sec. 57.13 Language in an appropriation bill permitting the Secretary
of Agriculture in his discretion to transfer property and equipment
of the Hawaii Experiment Station to the experiment station of the
University of Hawaii was conceded to be legislation and held not in
order.
On Apr. 15, 1943, (19) during consideration in the
Committee of the Whole of the Agriculture Department appropriation bill
(H.R. 2481), a point of order was raised by Mr. Clifford R. Hope, of
Kansas, against the provision described above, on grounds that it
constituted legislation. The following exchange then took place:
---------------------------------------------------------------------------
19. 89 Cong. Rec. 3421, 78th Cong. 1st Sess.
---------------------------------------------------------------------------
The Chairman: (20) Does the gentleman from Georgia
desire to be heard on the point of order?
---------------------------------------------------------------------------
20. William M. Whittington (Miss.).
---------------------------------------------------------------------------
Mr. [Malcolm C.] Tarver [of Georgia]: Mr. Chairman, the point
of order is conceded.
The Chairman: The point of order is sustained.
Disease Eradication; Requiring Secretary to Cooperate With State
Authorities
Sec. 57.14 Language in an appropriation bill for ``determining and
applying such methods of eradication . . . of the disease . . .
known as `citrus canker' as in the judgment of the Secretary of
Agriculture may be necessary, including cooperation with such
authorities of the States concerned . . . as he may deem
necessary,'' was conceded and held to impose additional duties on
the Secretary of Agriculture and therefore to comprise legislation
on an appropriation bill.
On Mar. 24, 1939,(1) the Committee of the Whole was
considering H.R. 5269, an Agriculture Department appropriation bill.
[[Page 6174]]
The following proceedings took place:
---------------------------------------------------------------------------
1. 84 Cong. Rec. 3272, 76th Cong. 1st Sess.
---------------------------------------------------------------------------
Citrus canker eradication: For determining and applying such
methods of eradication or control of the disease of citrus trees
known as ``citrus canker'' as in the judgment of the Secretary of
Agriculture may be necessary, including cooperation with such
authorities of the States concerned, organizations of growers, or
individuals, as he may deem necessary to accomplish such purposes,
$13,485: Provided, That no part of the money herein appropriated
shall be used to pay the cost or value of trees or other property
injured or destroyed.
Mr. [John] Taber [of New York]: Mr. Chairman, I make a point of
order against the paragraph on page 54, lines 5 to 14, and call
attention to the fact that this paragraph delegates additional
duties to the Secretary of Agriculture. I call the Chair's
particular attention to the language in the first part of the
paragraph. . . .
This clearly is a delegation of additional authority to the
Secretary and requires additional duties of the Secretary of
Agriculture.
Mr. [Clarence] Cannon of Missouri: What is the point of order,
Mr. Chairman?
Mr. Taber: That it delegates additional duties to the Secretary
of Agriculture and requires additional responsibilities of him, and
thus is legislation on an appropriation bill.
Mr. Cannon of Missouri: Of course, Mr. Chairman, the point of
order is well taken.
The Chairman: (2) The point of order is sustained.
---------------------------------------------------------------------------
2. Fritz G. Lanham (Tex.).
---------------------------------------------------------------------------
Cotton Allotment Acres; Requiring New Conditions for Eligibility
Sec. 57.15 An amendment to a general appropriation bill prohibiting the
use of funds therein for a program under which farmers who plant a
nonconserving crop on cotton allotment acres are eligible for
federal set-aside payments was ruled out as legislation requiring
federal officials to make new determinations of eligibility not
required to be made by existing law.
On June 16, 1976,(3) during consideration in the
Committee of the Whole of the Agriculture Department appropriation bill
(H.R. 14237), an amendment was offered against which a point of order
was sustained, as follows:
---------------------------------------------------------------------------
3. 122 Cong. Rec. 18666, 18667, 94th Cong. 2d Sess.
---------------------------------------------------------------------------
Mr. [Paul] Findley [of Illinois]: Mr. Chairman, I offer an
amendment.
The Clerk read as follows:
Amendment offered by Mr. Findley: Page 17, line 22, strike
the period after the word ``regulations'' and insert the
following: ``: Provided further, That none of the funds
appropriated or made available under this Act shall be used to
formulate or carry out a program for the 1977 crop year under
which producers who plant a nonconserving crop on
[[Page 6175]]
cotton allotment acres are eligible for payments under the
second sentence of Section 103(e)(2) of the Agricultural Act of
1949 as amended.''
Mr. [Jamie L.] Whitten [of Mississippi]: Mr. Chairman, I
reserve a point of order on the amendment. . . .
Mr. Chairman, I desire to be heard on the point of order.
The amendment provides, and may I read it:
That none of the funds appropriated or made available under
this Act shall be used to formulate or carry out a program for
the 1977 crop year under which producers who plant a
nonconserving crop on cotton allotment acres. . . .
There is nothing in existing law that requires the Secretary of
Agriculture to determine which farmers plant a nonconserving crop
on cotton allotment land. To carry out that amendment would
certainly impose on the Secretary an additional duty to determine
whether or not that was true. Since there seems to be a mixture of
argument pro and con, as well as directed to the matter before us,
I would like to call attention to the fact that the crop in this
instance as discussed by the proponent is soybeans. Had we not
provided those soybeans, the executive branch probably would have
kept the embargo on exports longer than it did. . . .
I repeat again, Mr. Chairman, that there is no way in the world
that the Secretary of Agriculture can determine which producers
plant a nonconserving crop on cotton allotment acres without doing
something he does not do now and is not required to do now. That
brings it where it is clearly subject to a point of order. . . .
Mr. Findley: . . . Mr. Chairman, this amendment is parallel in
all points to a series of amendments that I have offered over the
years which have been challenged in each case by the gentleman from
Mississippi and in each case unsuccessfully. In a sense perhaps it
is pointless to repeat the arguments that have been made
effectively in past years. It is retrenchment to a withholding of
funds. It clearly is within the Holman Rule.
The question was raised as to whether it imposes a new duty
upon the Secretary. While the key words, of course, are ``formulate
or carry out a program,'' the formulation or carrying out of a
program to which the limitation applies would not impose a new duty
upon the Secretary because everyone who seeks to get relief under
the Disaster Relief program must fill out an application form. It
would, of course, therefore, be a very simple matter for this form
to require the applicant to state whether or not a nonconserving
crop has been planted, if that would indeed be a point in question
before the Chair; but there have been at least 15 other almost
identical amendments that have been successfully sustained by the
Chair in the past, and I feel confident that the Chair will sustain
the point of order.
The Chairman: (4) Is it the point of the gentleman
from Illinois that the determinations called for in the last 4
lines of the amendment are already carried out under existing law?
Is that the contention?
---------------------------------------------------------------------------
4. Sam Gibbons (Fla.).
---------------------------------------------------------------------------
Mr. Whitten: They are not.
Mr. Findley: Mr. Chairman, in order to carry out the disaster
relief
[[Page 6176]]
provisions of the existing law, a farmer must make application, and
on this application he must state certain things and certify
certain things. Therefore it is my opinion that this imposes no
additional duty upon the administrator of this act for the
determination to be made that producers are not planting a
nonconserving crop.
The Chairman: Could the gentleman elaborate on that specific
point, about whether or not in order to qualify the farmer is
required now under existing law to make application?
Mr. Findley: Absolutely that is an essential step that applies
equally to all farmers who seek relief under the disaster relief
provisions of the law. . . .
Mr. Whitten: Mr. Chairman, in my opinion the gentleman in the
well has acknowledged that additional duties are required. There is
nothing in my knowledge that in the department they have anything
which shows that certain crops were planted. They do not have any
such record. If this amendment were adopted they would have to
start keeping such records.
As I understand the gentleman he said there is nothing to keep
them from bringing in such a certificate. If these were brought in,
the department would have to go over them and determine this, that
and the other. There have been a few times in history when they
accepted such papers and there was one time when they had
certificates certifying more crops than were ever planted.
As I understood the gentleman, he acknowledges that an
additional certificate would have to be supplied with additional
information, and from that the Secretary would have to make a new
determination, one he does not now have to make.
The Chairman: The Chair is prepared to rule.
The proponent of the amendment carries the burden of proof to
show that a new duty is not required. Based on that the Chair is
going to rule that the gentleman from Illinois has not shown that
the Department of Agriculture would not be required by his
amendment to make new determinations of eligibility under the
cotton allotment program, or institute new recordkeeping
procedures, and the Chair sustains the point of order.
Price Support Loans; Requiring Minimum Interest Rates
Sec. 57.16 An amendment to a general appropriation bill prohibiting the
use of funds therein for loans not repayable at a certain minimum
interest rate or interest on which at time of default is payable
without regard to value of collateral was held to require new
determinations not required by law as to the nature of interest on
loans and was ruled out as legislation in violation of Rule XXI
clause 2.
On July 29, 1982, (5) during consideration in the
Committee of the Whole of H.R. 6863 (supplemental
[[Page 6177]]
appropriation bill), a point of order against the following amendment
was sustained:
---------------------------------------------------------------------------
5. 128 Cong. Rec. 18624, 97th Cong. 2d Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
Amendment offered by Mr. [Peter A.] Peyser [of New York]:
Page 2, line 15, immediately before the period insert the
following: ``Provided further, That no funds appropriated or
otherwise made available under this chapter shall be available
for price support loans for agricultural commodities for which
the interest rate is not guaranteed payable at a rate of not
less than 9 percent per year and for which the aggregate
interest owing at the time of default is payable without regard
to the value of the collateral.''. . . .
Mr. [Jamie L.] Whitten [of Mississippi]: Mr. Chairman, I will
insist on my point of order.
The Chairman: (6) The gentleman will state his point of
order.
---------------------------------------------------------------------------
6. George E. Brown, Jr. (Calif.).
---------------------------------------------------------------------------
Mr. Whitten: Mr. Chairman, as I mentioned earlier, the
Commodity Credit Corporation was set up as a corporation and given
the right and the power to sell and to buy and do all those kinds
of things a corporation would. It was set up as a corporation for
that purpose, to do all the things an average corporation can do.
I respectfully submit that the language the gentleman from New
York [Mr. Peyser] has offered is not in that charter. Those
decisions are left to the officers of the corporation.
I respectfully submit that the amendment provided that no funds
shall be used for which an interest rate of not less than 9 percent
is charged on default of its own commodities. That gives
affirmative direction and is, therefore, legislation since it
applies to the corporation.
The amendment also requires the Department to determine--and I
quote to you--``the aggregate interest owing at the time of
default.'' That is not required in the law. That determination is
not required, and, therefore, that provision is legislation.
The amendment also requires that the value of the commodity be
determined at the time of default. That is not in the charter and
required under law. Commodity value is determined at the time of
sale, not at the time of default. That requirement is not required
by law and would also be legislation.
Therefore, Mr. Chairman, I ask that this point of order be
sustained. . . .
Mr. Peyser: . . . The charter of the Commodity Credit
Corporation does provide for an interest payment. It provides for
an interest payment, and all I am doing is stipulating that the
interest payment shall not be less than a certain percent. So I do
not believe I am changing anything in the charter that is not
already in the charter.
I am simply stipulating a figure and a word that says,
``guaranteed,'' because in the present situation, with the interest
rate that they call for in the Corporation, there is nothing there
that says they have to pay it, and they do not. Not paying it is
costing $1 billion. So, Mr. Chairman, I feel that I am not at all
violating the charter or adding to the charter. I am simply
establishing a rate. . . .
The Chairman: The Chair is prepared to rule.
The gentleman from Mississippi [Mr. Whitten] has made a point
of order
[[Page 6178]]
against the amendment essentially on the grounds that it requires
additional determinations to be made by the Commodity Credit
Corporation. While it is drafted as a limitation, the amendment
does require the Commodity Credit Corporation to undertake
computations and additional duties not now demonstrably required by
law. The amendment would require procedures to be put into effect
that are not now required.
The Chair, therefore, sustains the point of order.
Prohibiting Disposal of Surplus Agricultural Land
Sec. 57.17 An amendment to a general appropriation bill prohibiting the
use of funds therein for the General Services Administration to
dispose of U.S.-owned agricultural land declared surplus was ruled
out as legislation requiring the finding that surplus U.S.-owned
lands are ``agricultural'', where the law cited by the proponent of
the amendment defining that term was not applicable to the GSA.
On Aug. 20, 1980,(7) during consideration in the
Committee of the Whole of H.R. 7593 (Department of Treasury and Postal
Service appropriation bill), a point of order was sustained against the
following amendment:
---------------------------------------------------------------------------
7. 126 Cong. Rec. 22156, 22158, 96th Cong. 2d Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
Amendment offered by Mr. [Donald J.] Pease [of Ohio]: Page
27, after line 17, insert the following new section:
Sec. 4. None of the funds appropriated by this title may be
used by the General Services Administration before January 1,
1981, to dispose of any United States owned agricultural land
which is determined by the Administrator of the General
Services Administration to be surplus. . . .
Mr. John L. Burton [of California]: Mr. Chairman, I insist on
my point of order, that it is legislation on an appropriation bill.
As the distinguished gentleman from Ohio said, if we want to change
policy, it explicitly places new duties on the GSA to have them
make investigations, compile evidence, make a determination, is
this agricultural land or not, as discussed in the colloquy between
the gentleman from Vermont and the gentleman from Ohio.
There is no definition of agricultural land as it goes in the
hierarchy of how the GSA has to do business. This would change
their whole way of doing business.
For instance, under the present law there are airports, and
airports have a certain top priority. If, in fact, part of the land
around that airport was used for such things as hay cropping, they
would then have to make a determination at each and every airport,
is there hay cropping here before we can turn this over to a local
community for a dollar? . . .
Mr. Pease: . . . We have had any number of amendments similar
to this
[[Page 6179]]
before us which have been upheld by the Chair. This does not impose
new duties on the Administrator of GSA. It merely prohibits him
from using any of the funds in this bill to dispose of U.S. owned
agricultural land.
There is a definition in the statute in the Agricultural
Foreign Investment Disclosure Act of agricultural land. . . .
Mr. Chairman, in the Agricultural Foreign Investment Disclosure
Act of 1979 there is a definition of agricultural land. It says
under section 3508, definitions:
For the purposes of this chapter, the term ``agricultural
land'' means any land located in any one or more States and
used for agricultural, forestry or timber production purposes.
In other words, it is not sufficient that it would be suitable
for, it must be used or in the process of being used for
agricultural purposes under the definition in the existing law.
Mr. John L. Burton: If I may, Mr. Chairman, that is in the law.
The Administrator of GSA would have to look through every piece of
property in its jurisdiction, in its inventory and then see if it
fits the statute of law. It is not under their law, it is defined
and it is in another code section, and they would have to go
through every piece of surplus property to make this determination.
That is certainly an added burden on them.
The Chairman: (8) The Chair is prepared to rule. The
Chair is of the opinion . . . that there is nothing in the Federal
Property and Administration Services Act which would confer
authority on GSA to determine whether certain U.S. owned lands are
agricultural lands, and the Chair would sustain the point of order.
---------------------------------------------------------------------------
8. Richardson Preyer (N.C.).
---------------------------------------------------------------------------
The statute cited by the gentleman from Ohio contains a
definition under title 7, United States Code, with respect to
agricultural land owned by foreigners and reported to the Secretary
of Agriculture, and not to federally owned land.
Parliamentarian's Note: Where terms used in a purported limitation
are challenged because of their ambiguity or indefiniteness, the burden
is on the proponent of such intended limitation to show that no new
duties would arise in the course of applying the terms thereof.
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. 58. Commerce
Authorization for Sales of Scientific Reports
Sec. 58.1 An amendment to the Departments of State, Justice, Commerce,
and the Judiciary appropriation bill authorizing the Secretary of
Commerce upon request of any organization or individual to
reproduce any scientific or technical report and to sell such
reproduction at a cost to be determined by the Secretary was held
to be legislation on an appropriation bill and not in order.
[[Page 6180]]
On Mar. 5, 1948,(9) during consideration in the
Committee of the Whole of a general appropriation bill (H.R. 5607), a
point of order was raised against the following provision:
---------------------------------------------------------------------------
9. 94 Cong. Rec. 2233, 2234, 80th Cong. 2d Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
Amendment offered by Mr. [Walter C.] Ploeser [of Missouri]:
On page 56, after line 5, insert the following paragraph:
``Technical and scientific services: For necessary expenses
in the performance of activities and services relating to the
collection, compilation, and dissemination of technological
information as an aid to business in the development of foreign
and domestic commerce, including personal services in the
District of Columbia; not to exceed $25,000 for services as
authorized by section 15 of the act of August 2, 1946 (5 U.S.C.
55a), and not to exceed $50,000 for printing and binding,
$520,000, of which $20,000 shall be transferred to the
appropriation `Salaries and expenses' under the Office of the
Secretary: Provided, That the Secretary is authorized, upon
request of any public or private organization or individual, to
reproduce by appropriate process, independently or through any
other agency of the Government, any scientific or technical
report, document, or descriptive material, foreign or domestic,
which has been released for public dissemination, and to sell
such reproductions at a price not less than the estimated total
cost of reproducing and disseminating same as may be determined
by the Secretary, the moneys received from such sale to be
deposited in a special account in the Treasury, such account to
be available for reimbursing any appropriation which may have
borne the expense of such reproduction and dissemination and
making refunds to organizations and individuals when entitled
thereto.''
Mr. [Karl] Stefan [of Nebraska]: Mr. Chairman, I reserve a
point of order against the amendment. . . .
The Chairman: (10) Does the gentleman from Nebraska
insist on his point of order?
---------------------------------------------------------------------------
10. Carl T. Curtis (Nebr.).
---------------------------------------------------------------------------
Mr. Stefan: Yes, Mr. Chairman.
The Chairman: Does the gentleman from Missouri desire to be
heard on the point of order?
Mr. [J. Vaughan] Gary [of Virginia]: Mr. Chairman, I wish to be
heard on the point of order. . . .
May I say that a point of order was raised against this item
last year and it was eliminated on the point of order. At that
time, however, the Department was engaged in some research which it
was doing, in which it farmed out certain projects for research to
the various colleges and institutions. It was not doing original
research but was using other available research agencies to make
the research for them. When, however, a point of order was raised
in the House the research activities were eliminated.
The Office is now engaged only in furnishing technical and
scientific information to business. The authority for the
Department of Commerce to engage in such activities reads as
follows:
It shall be the province and duty of the Bureau of Foreign
and Domestic Commerce, under the direction of the Secretary of
Commerce, to foster, promote, and develop the various
[[Page 6181]]
manufacturing industries of the United States, and markets for
the same at home and abroad, domestic and foreign, by
gathering, compiling, publishing, and supplying all available
and useful information concerning such industries and such
markets, and by such other methods and means as may be
prescribed by the Secretary of Commerce or provided by law.
It is our contention that this is just exactly what the
particular office is doing and that under the above language its
activities are authorized.
The Chairman: Does the gentleman from Nebraska desire to be
heard?
Mr. Stefan: No, Mr. Chairman; I ask that a ruling be made.
The Chairman: The Chair is ready to rule.
It is the opinion of the Chair that the amendment does contain
legislation and, therefore, the Chair sustains the point of order.
.
Authority to Terminate Employment
Sec. 58.2 Language in a general appropriation bill providing that the
Secretary of Commerce may, in his discretion, terminate the
employment of any officer or employee of the Department of Commerce
whenever he shall deem such termination necessary or advisable in
the interests of the United States, was conceded to be legislation
on an appropriation bill and held not in order.
On Apr. 21, 1950,(11) during consideration in the
Committee of the Whole of a general appropriation bill (H.R. 7786), a
point of order was raised against the following provision:
---------------------------------------------------------------------------
11. 96 Cong. Rec. 5539, 5540, 81st Cong. 2d Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
Sec. 305. Notwithstanding the provisions of section 6 of
the act of August 24, 1912 (37 Stat. 555), or the provisions of
any other law, the Secretary of Commerce may, in his absolute
discretion, during the current fiscal year, terminate the
employment of any officer or employee of the Department of
Commerce whenever he shall deem such termination necessary or
advisable in the interests of the United States.
Mr. [Vito] Marcantonio [of New York]: Mr. Chairman, a point of
order.
The Chairman: (12) The gentleman will state it.
---------------------------------------------------------------------------
12. Jere Cooper (Tenn.).
---------------------------------------------------------------------------
Mr. Marcantonio: Mr. Chairman, I make a point of order against
section 305 for the same reasons as I did yesterday. I do not want
to be repetitious. It is legislation on an appropriation bill.
The Chairman: Does the gentleman from New York [Mr. Rooney]
desire to be heard?
Mr. [John J.] Rooney: Mr. Chairman, this is the exact language
of the so-called McCarran rider which was stricken yesterday by the
Chair on a point of order raised by the gentleman from New York
[Mr. Marcantonio] to the provisions of the Department of State
portion of the pending bill.
[[Page 6182]]
Under the circumstances and as much as I dislike to do so, I must
concede that the language is exactly the same and further concede
that the Chair is expected to rule today as it did yesterday. But I
do hope that when we come back to the House with this bill after a
conference with the other body that the provisions of this rider
will be again contained therein because the Department of Commerce
has been shown to need the provisions of the McCarran rider even
more so than the Department of State so that the Secretary of
Commerce can summarily dismiss any employee who is connected with
subversive activities.
The Chairman: The gentleman from New York [Mr. Marcantonio]
makes the point of order against section 305, page 84, on the
ground it contains legislation on an appropriation bill which is in
violation of the rules of the House. The gentleman from New York
[Mr. Rooney] concedes that this is the same language as contained
in the provision of the pending bill relating to the State
Department on which a similar point of order was made on
yesterday.(13)
---------------------------------------------------------------------------
13. See Sec. 59.14, infra, for the ruling referred to.
---------------------------------------------------------------------------
The Chair has examined the language. It appears clearly that
there is legislation included in this section of the pending bill.
The rules of the House clearly provide it is not in order for
legislation to be included in an appropriation bill and, as stated
on the same question presented yesterday, the Chair has no
alternative other than to sustain the point of order.
The Chair sustains the point of order.
Regulations of the Secretary
Sec. 58.3 Language in an appropriation bill providing that
appropriations for the Department of Commerce available for
salaries and expenses shall be available ``in accordance with
regulations prescribed by the Secretary,'' for attendance at
meetings of organizations concerned with the activities for which
the appropriations are made, was held to be legislation and not in
order.
On Apr. 21, 1950,(14) during consideration in the
Committee of the Whole of a general appropriation bill (H.R. 7786), a
point of order was raised against the following provision:
---------------------------------------------------------------------------
14. 96 Cong. Rec. 5537, 81st Cong. 2d Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
Sec. 304. Appropriations of the Department of Commerce
available for salaries and expenses shall be available, in
accordance with regulations prescribed by the Secretary, for
attendance at meetings of organizations concerned with the
activities for which the appropriations are made.
Mr. [Kenneth B.] Keating [of New York]: Mr. Chairman, I make a
point of order against section 304 on the ground that it is
legislation on an appropriation bill and requires additional duties
of the Secretary of Commerce.
[[Page 6183]]
The Chairman: (15) Does the gentleman from New York
[Mr. Rooney] desire to be heard on the point of order?
---------------------------------------------------------------------------
15. Jere Cooper (Tenn.).
---------------------------------------------------------------------------
Mr. [John J.] Rooney: Yes, Mr. Chairman.
The Chairman: The Chair will be pleased to hear the gentleman.
Mr. Rooney: Mr. Chairman, it is the contention of the committee
that the language contained in section 304 of the proposed bill,
page 84, is required by the provisions of five United States Code,
section 83.
The Chairman: Does the gentleman from New York [Mr. Keating]
desire to be heard on the point of order?
Mr. Keating: Yes, Mr. Chairman.
The Chairman: The Chair will be pleased to hear the gentleman.
Mr. Keating: Either this section 304 is necessary or it is not
necessary. If it is not necessary and adds nothing, then there is
no reason for it; if it does add something, in the way of duties
conferred on the Secretary of Commerce, then it is necessarily
legislation in an appropriation bill. All of line 14 of section 304
requires additional duties on the part of the Secretary of
Commerce. The entire section is legislation in this bill.
My attention has been called to this section of the United
States Code, referred to by the gentleman from New York [Mr.
Rooney], which is general in its terms but does not cover the
duties set forth in section 304, which are in addition to those
provided in the code. They are discretionary duties.
The Chairman: The Chair is prepared to rule. . . .
The Chair has examined the section, and also has examined the
provisions of the law found in section 83, title V of the United
States Code, which appear to the Chair to be ample authority for
the provision included in this section.
However, the Chair does invite attention to the language
appearing in line 14 which reads: ``in accordance with regulations
prescribed by the Secretary.'' It would appear from that language
that this would impose additional duties and confer additional
authority on the Secretary. It would to that extent constitute
legislation on an appropriation bill.
For the reason stated, the Chair sustains the point of order.
Parliamentarian's Note: Compare this ruling with Sec. 52.28, supra.
In the 1950 precedent, there was a requirement for the issuance of
regulations, rather than discretionary authority given for the issuance
thereof, and Sec. 304, at issue here also was inadmissible as affecting
other funds of the department. It should be noted that 5 USC Sec. 4110
specifically authorizes appropriations for attendance at any meetings
necessary to improve an agency's efficiency. See also 5 USC Sec. 5946.
Where the law contemplates inclusion of certain language in an
appropriation bill, such language, of course, is not legislation. For
general discussion of provisions in law that authorize inclusion of
specified language in appropriation bills, see Sec. 26, supra.
[[Page 6184]]
Coast Guard; Earmarking Funds for Unauthorized Project
Sec. 58.4 To a paragraph in a general appropriation bill containing
funds for operating expenses of the Coast Guard, an amendment
directing the use of additional funds for the preparation of a
report by the Coast Guard on search and rescue units was held to
impose new duties on federal officials and was ruled out as
legislation in violation of Rule XXI clause 2.
On June 20, 1973,(16) during consideration in the
Committee of the Whole of the Department of Transportation
appropriation bill (H.R. 8760), a point of order was raised against the
following amendment:
---------------------------------------------------------------------------
16. 119 Cong. Rec. 20530, 20531, 93d Cong. 1st Sess.
---------------------------------------------------------------------------
The Chairman: (17) The gentleman from California
reserves a point of order on the amendment.
---------------------------------------------------------------------------
17. John M. Murphy (N.Y.).
---------------------------------------------------------------------------
The Clerk read as follows:
Amendment offered by Mr. [Guy A.] Vander Jagt [of
Michigan]: Page 3, line 11, strike out ``$543,800,000'' and
insert in lieu thereof ``$544,400,000''.
And on page 3, line 12, insert immediately after
``reduction'' the following: ``, and of which $600,000 shall be
applied to the preparation of a report by the Coast Guard with
respect to the closing of certain search and rescue units
during 1973, and to the reopening and operation of any search
and rescue unit determined by such report to be desirable for
the maintenance of an effective search and rescue
capability.''. . .
Mr. [John J.] McFall [of California]: . . . Mr. Chairman, I
renew my point of order on the basis that the language of the
second paragraph of the gentleman from Michigan's amendment is
legislation on an appropriation bill.
The Chairman: Does the gentleman from Michigan wish to repond?
Mr. Vander Jagt: Thank you, Mr. Chairman.
[To enable the Coast Guard] to carry out the intent of the
committee and respond, [it] is helpful to have that additional
language in.
However, since we are making legislative history as to what
exactly we are talking about in terms of this $600,000 item, if the
gentleman from California's point of order is sustained, I have a
substitute amendment at the desk.
The Chairman: The Chair will rule on the point of order.
The gentleman's amendment clearly imposes new duties on the
Coast Guard which would, in effect, constitute legislation in an
appropriation bill in violation of clause 2, rule XXI.
The Chair sustains the point of order of the gentleman from
California.
Export Embargoes; Requiring Determinations of Rationale for Imposition
Sec. 58.5 A substitute amendment to a general appropriation
[[Page 6185]]
bill precluding the use of funds therein to carry out embargoes on
export of agricultural products determined by the Secretary of
Agriculture to have been imposed as the result of a designated
Presidential embargo on exports to one country was ruled out as
legislation in violation of Rule XXI clause 2, imposing on that
official new duties not required by existing law.
On July 22, 1980,(18) during consideration in the
Committee of the Whole of the Departments of State, Justice, Commerce,
and the Judiciary appropriation bill (H.R. 7584), a substitute
amendment was ruled out of order as indicated below:
---------------------------------------------------------------------------
18. 126 Cong. Rec. 19087-89, 96th Cong. 2d Sess.
---------------------------------------------------------------------------
Mr. [Mark] Andrews of North Dakota: Mr. Chairman, I offer an
amendment.
The Clerk read as follows:
Amendment offered by Mr. Andrews of North Dakota: On page
43, after line 5, insert the following new section:
``Sec. 605. None of the funds appropriated by this Act may
be used to carry out or enforce any restriction on the export
of any agricultural commodity.''
Mr. [Tom] Harkin [of Iowa]: Mr. Chairman, I offer an amendment
as a substitute for the amendment.
The Clerk read as follows:
Amendment offered by Mr. Harkin as a substitute for the
amendment offered by Mr. Andrews of North Dakota: Page 43,
after line 5, insert the following new section:
Sec. 605. None of the funds appropriated by this Act may be
used to carry out or enforce any licensing requirement for the
export of any agricultural commodity or product which, as
determined by the Secretary of Agriculture, was imposed because
of the reduction in the sales of agricultural commodities and
products to the Soviet Union announced by a presidential
memorandum to the Secretary of Commerce, dated January 7, 1980.
. . .
Mr. [Robert E.] Bauman [of Maryland]: I make a point of order
on two grounds. First of all, it is not germane to this bill
because it makes the determination of the matter the province of
the Secretary of Agriculture, which is not covered in this
legislation. This is not for the Department of Agriculture.
Second, it goes beyond the usual amendment limitation on an
appropriation bill, requiring determinations to be made and duties
to be performed that may not be authorized at this time in law. For
both reasons I think the amendment is out of order. . . .
Mr. Harkin: Mr. Chairman, I believe the gentleman from Maryland
(Mr. Bauman) misreads the amendment. The determination was already
made by the Secretary of Agriculture in the Federal Register,
volume 45, No. 6, dated January 9, 1980. There is a Presidential
memorandum to the Secretary of Commerce in which the President has
directed the Secretary of Commerce, in consultation with the
Secretary of Agriculture and other appropriate officials, to take
immediate
[[Page 6186]]
action under the Export Administration Act to terminate shipments
of agricultural commodities and products, including wheat and corn,
to the Soviet Union.
Therefore, the determination by the Secretary of Agriculture
has already been made; it is not to be made in the future. . . .
Mr. Bauman: Mr. Chairman, I will simply point out if that is
the intention of the gentleman, his drafting is imperfect because
it says that none of the funds appropriated under this act, which
will take effect for fiscal year 1981, beginning October 1, may be
used for any licensing requirement. That definitely encompasses
future determinations and does not simply go to past
determinations. That, I think, is well beyond any limitation that
is appropriate to an appropriations bill. . . .
The Chairman: (19) The Chair is prepared to rule.
---------------------------------------------------------------------------
19. George E. Brown, Jr. (Calif.).
---------------------------------------------------------------------------
The gentleman from Maryland makes a point of order against the
substitute amendment for the amendment offered by the gentleman
from North Dakota (Mr. Andrews) on the grounds, first, that it is
not germane to the original amendment of the bill; second, that it
imposes additional duties and hence it is not in accordance with
the rules.
It is the opinion of the Chair the amendment does appear to
impose upon the Secretary of Agriculture the responsibility not
only of consulting with the Secretary of Commerce but evaluating
whether licensing requirements for export of agricultural
commodities were imposed for certain reasons. This is a duty not
demonstrably imposed upon the Secretary of Agriculture by existing
law and hence in the opinion of the Chair does constitute an
additional duty.
The Chair does find, however, that the substitute is germane,
but on the basis of the second objection, upholds the point of
order and rules that the amendment is out of order.
Line-of-business Data; Restriction on Discretion to Collect
Sec. 58.6 Language in a paragraph of a general appropriation bill
containing funds for the Federal Trade Commission ``for the purpose
of collecting line-of-business data . . . from not to exceed 250
firms'' was conceded to directly interfere with the discretionary
authority of the FTC--a restriction on the scope of the
investigation rather than a limitation on availability of funds--
and was ruled out in violation of Rule XXI clause 2.
On June 21, 1974,(20) the principle was applied that
while it is in order on a general appropriation bill to limit the
availability of funds therein for part of an authorized purpose while
appropriating for the remainder of it, language which restricts not the
[[Page 6187]]
funds but the discretionary authority of a federal official
administering those funds may be ruled out as legislation. The
proceedings are discussed in Sec. 51.18, supra.
---------------------------------------------------------------------------
20. 120 Cong. Rec. 20600, 93d Cong. 2d Sess.
---------------------------------------------------------------------------
Federal Trade Commission; Prohibiting Funds for Regulation of
Advertising
Sec. 58.7 To a general appropriation bill from which all funds for the
Federal Trade Commission had been stricken as unauthorized, an
amendment prohibiting the use of all funds in the bill to limit
advertising of (1) food products containing ingredients found safe
by the Food and Drug Administration or considered ``generally
recognized as safe'', or not containing ingredients found unsafe by
the FDA, and (2) toys not declared hazardous or unsafe by the
Consumer Product Safety Commission, was held to impose new duties
upon the Federal Communications Commission (another agency funded
by the bill) to evaluate findings of other federal agencies--duties
not imposed upon the FCC by existing law.
On June 14, 1978,(1) during consideration in the
Committee of the Whole of H.R. 12934 (Departments of State, Justice,
Commerce, and the Judiciary appropriation bill), a point of order was
sustained against the following amendment:
---------------------------------------------------------------------------
1. 124 Cong. Rec. 17644-47, 95th Cong. 2d Sess.
---------------------------------------------------------------------------
Mr. [Mark] Andrews of North Dakota: Mr. Chairman, I offer an
amendment.
The Clerk read as follows:
Amendment offered by Mr. Andrews of North Dakota: On page
51 after line 16, insert the following:
Sec. 605. Except for funds appropriated to the Judiciary in
title IV of this act, no part of any appropriation contained in
this act may be used to pay the salary or expenses of any
person to limit the advertising of: (1) any food product that
contains ingredients that have been determined to be safe for
human consumption by the Food and Drug Administration or are
considered to be ``Generally Recognized as Safe'' (GRAS) and
does not contain ingredients that have been determined to be
unsafe for human consumption by the FDA; (2) any toy which has
not been declared hazardous or unsafe by the Consumer Product
Safety Commission. . . .
Mr. [Bob] Eckhardt [of Texas]: The amendment is legislation on
an appropriation bill, and as such is subject to a point of order
under rule XXI, clause 2. . . .
. . . [T]his amendment was directed at the Federal Trade
Commission section of the bill which has come out. Therefore, I
would also offer alter
[[Page 6188]]
natively or additionally, the point of order that this is not
germane to the bill as it is now before us. . . .
. . . I should primarily like to speak on the point of order
based on the proposition that I just read, that is that this
constitutes legislation on an appropriations bill and gives to
officers of the Government very, very large additional duties as
the result of the passage of this amendment, should it be passed.
I point primarily to the case which I believe is directly in
point. On June 21, 1974, there was a point of order made by the
gentleman from California (Mr. Moss) to a provision in the
appropriations bill at that time, section 511. The gentleman from
California (Mr. Moss) asserted that the language would impose
additional duties on every agency subject to the bill and was
legislation on an appropriation. The language of the section was as
follows:
Except as provided in existing law, funds provided in this
act shall be available only for the purposes for which they are
appropriated.
Mr. Moss correctly pointed out that if that provision were
sustained, it would be necessary in the use of any funds by an
agency involved to go back and show that the Appropriations
Committee had addressed the specific object of the use of those
funds. . . .
The Chair ruled as follows:
The Chair is prepared to rule on the point of order. If the
language means what the gentleman from Mississippi now says it
does, then the language is a nullity because it just repeats
existing law. The Chair is of the opinion, though, that there
is a possibility, as earlier indicated during general debate
and as suggested by the gentleman from California, that the
amendment imposes an additional burden, and the Chair,
therefore, sustains the point of order. . . .
The Food and Drug Administration does not list food products as
safe or unsafe. The Food and Drug Administration only determines
whether or not ingredients in food products are safe or unsafe.
Therefore, if this restriction were placed in law, it would be
necessary for an agency like the Federal Communications Commission,
when it is determining whether or not funds might be used in order
to take some action respecting unsafe foods, to look to see what
ingredients were included in the particular food involved. . . .
The Consumer Product Safety Commission determines what minimum
design or what minimum standards, performance standards, are
necessary in order for a toy to be permitted to go on the market. .
. .
The point, though, is that the Commission does not establish
that this particular toy is unsafe. If we pass this restriction, we
would place the burden on the FTC to go in and look at every toy
and then apply the standards of the Consumer Product Agency to
those toys to find out whether they could be advertised.
So, Mr. Chairman, I think this is a classic example of placing
on every agency to whom this restriction would apply very extensive
duties beyond that which they are now called upon to exercise. . .
.
Mr. [Norman D.] Dicks [of Washington]: . . . Mr. Chairman, just
to reiterate on this point, this amendment was aimed at limiting
the Federal Trade Commission. Now that that sec
[[Page 6189]]
tion has been stricken, the only way it can apply is to the FCC.
The FCC does not have to regulate itself for advertising. That
jurisdiction falls within the jurisdiction of the Federal Trade
Commission.
Therefore, it creates new legal duties for the FCC, which are
beyond the scope of an appropriation bill, which makes it
legislation within an appropriation bill and, therefore, subject to
rule XXI, clause 2.
Also the ruling made by the Consumer Product Safety Commission
is accurate. The language does not go to unsafe toys, and they
would have additional duties created by this amendment. . . .
The Chairman: (2) The Chair is prepared to rule.
---------------------------------------------------------------------------
2. George E. Brown, Jr. (Calif.).
---------------------------------------------------------------------------
The gentleman from Texas (Mr. Eckhardt) makes the point of
order that the amendment offered by the gentleman from North Dakota
(Mr. Andrews) constitutes legislation on an appropriation bill. In
addition, he makes the point that because it was drafted originally
to be applicable to the Federal Trade Commission and that section
of the bill has been stricken, it is no longer germane to the bill.
The Chair does not find it necessary to rule, however, on the
point of germaneness.
The amendment would prohibit use of any funds in the bill to
limit advertising of food products and toys in relation to which
determinations have been made by the Food and Drug Administration
and the Consumer Product Safety Commission. As indicated by the
arguments made on the point of order, this bill now contains no
funds for the Federal Trade Commission but does contain funds for
the Federal Communications Commission. The Chair feels it is
necessary to lay that basis in order to determine whether the
amendment requires new duties or determinations of a particular
agency which are not now required by law.
The Federal Communications Commission has the authority under
the law to regulate interstate and foreign communications and
transmissions in wire and radio, but existing law contains no
mandate that the Commission consider whether food and toy products
are safe or unsafe in regulating broadcasts within its
jurisdiction. The amendment would disallow funds for the Commission
to limit advertising of certain products, even if the purpose for
such regulatory limitations was totally unrelated to the safety of
the product in question. In considering any proposal to limit
advertising of food or toy products, the Commission would be
required to first determine the scope and extent of determinations
of other agencies on the safety of those products, and it is far
from clear whether such determinations are readily available or
sufficiently certain to determine whether the limitation would
apply in a particular case.
Furthermore, in relation to food products, the Commission would
have to determine whether the finished food product contained
ingredients which have been declared safe if the Food and Drug
Administration had made no determination on the safety of such a
finished product.
The Chair would also note that the amendment would prohibit
advertising of food products containing ingredients
[[Page 6190]]
considered to be generally recognized as safe, without specifically
indicating whether that determination is to be made by the FDA or
by the Federal Communications Commission.
For the reasons stated, the Chair finds that the amendment
would impose substantial new duties and requirements on the Federal
Communications Commission beyond its authorities under existing law
and, therefore, sustains the point of order.
Parliamentarian's Note: Even if FTC funds had remained in the bill,
the amendment was overly broad since applying to all funds in the bill
and not confined to FTC activities. The paragraph ruled out as
unauthorized, supra, containing funds for the FTC, included similar
language relating to the FTC.
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. 59. Defense and Foreign Relations
Buy-America; Equating Standards of Quality or Performance
Sec. 59.1 It is not in order on a general appropriation bill to
require, as a condition to the availability of funds, the
imposition of standards of quality or performance not required by
law, whether or not such standards are applicable by law to other
programs or activities.
On Nov. 18, 1981,(3) an amendment to a general
appropriation bill prohibiting the use of funds therein to procure
foreign-made items unless their inspection for quality assurance ``uses
the same standards'' which would be required for domestic products by
the Department of Defense was ruled out as legislation imposing
additional duties absent any showing that existing law already required
such inspection of items produced in foreign countries. The
proceedings, during consideration of the defense appropriation
bill,(4) were as follows:
---------------------------------------------------------------------------
3. 127 Cong. Rec. 28076, 28077, 97th Cong. 1st Sess.
4. H.R. 4995.
Mr. [Jim] Dunn [of Michigan]: Mr. Chairman, I offer an
amendment.
The Clerk read as follows:
Amendment offered by Mr. Dunn: Page 68 after line 15,
insert the following:
Sec. 792. None of the funds appropriated in this Act may be
available for the procurement of any item manufactured in a
foreign country unless, during manufacture, the inspection of
such item for quality assurance uses the same standards of
inspection during manufacture which would be required by the
Department of Defense if such item were manufactured
domestically.
Mr. Dunn [during the reading]: Mr. Chairman, I ask unanimous
consent that the amendment be considered as read and printed in the
Record.
[[Page 6191]]
The Chairman: (5) Is there objection to the request
of the gentleman from Michigan?
---------------------------------------------------------------------------
5. Daniel D. Rostenkowski (Ill.).
---------------------------------------------------------------------------
There was no objection.
Mr. [Bill] Frenzel [of Minnesota]: Mr. Chairman, I rise to make
a point of order against the amendment.
The Chairman: The Chair recognizes the gentleman from Minnesota
(Mr. Frenzel) on his point of order.
Mr. Frenzel: Mr. Chairman, in my judgment the amendment is
contrary to rule XXI, clause 2, which provides that no amendment
changing existing law can be made on an appropriation bill. The
amendment clearly gives the Secretary additional duties, to
determine what kind of quality assurance or inspection is required
under the terms of the amendment and, therefore, the amendment
constitutes legislation on an appropriation bill.
Mr. Chairman, I believe the point of order should be sustained.
The Chairman: Does the gentleman from Michigan wish to be heard
on the point of order?
Mr. Dunn: Mr. Chairman, the gentleman, I believe, is incorrect.
The Secretary already has that discretion. We are simply, in this
amendment, trying to make certain that the powers that he uses for
national companies are the same as for international companies. He
already has that power. It does not change his power.
The Chairman: As the Chair reads the amendment, there is
clearly a mandatory authority imposing additional duties; absent
any showing that existing law already requires such inspection of
items produced in foreign countries, the Chair sustains the point
of order made by the gentleman from Minnesota (Mr. Frenzel).
Parliamentarian's Note: This decision effectively overrules the
ruling of the Chair on July 28, 1959,(6) wherein an
amendment denying use of funds to finance construction projects abroad
that had not met the criteria used in determining the feasibility of
flood control projects in the United States was held a proper
limitation, despite any lack of showing that existing law required
domestic standards to be applied to foreign construction projects.
---------------------------------------------------------------------------
6. 105 Cong. Rec. 14522, 14524, 86th Cong. 1st Sess.
---------------------------------------------------------------------------
It should be noted that it is not just the imposition of new
standards that constitutes legislation rendering language subject to a
point of order, but the requirement of new procedures or duties
involved in making the standards applicable in a setting not
contemplated in the existing law.
Defense Contractors Employing Retired Officers
Sec. 59.2 An amendment providing that none of the funds appropriated in
the bill were to be used to enter into con
[[Page 6192]]
tracts with any concern having on its payroll a retired or inactive
military officer was held to be a limitation and in order.
On June 3, 1959,(7) during consideration of H.R. 7454
(making appropriations for the Department of Defense), proceedings took
place as follows:
---------------------------------------------------------------------------
7. 105 Cong. Rec. 9741, 9742, 86th Cong. 1st Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
The appropriation to the Department of Defense for
``Construction of ships, Military Sea Transportation Service,''
shall not be available for obligation after June 30, 1959.
Mr. [Alfred E.] Santangelo [of New York]: Mr. Chairman, I offer
an amendment.
The Clerk read as follows:
Amendment offered by Mr. Santangelo: On page 25, after line
17, add new section, as follows:
``General Provisions
``Sec. 301. None of the funds contained in this Title may
be used to enter into a contract with any person, organization,
company or concern which provides compensation to a retired or
inactive military or naval general officer who has been an
active member of the military forces of the United States
within 5 years of the date of enactment of this act.''. . .
Mr. [Gerald R.] Ford [Jr., of Michigan]: Mr. Chairman, I renew
my point of order. I agree that there are abuses indicated by the
gentleman from New York [Mr. Santangelo]. I think those abuses
should be corrected. But, I think at this point, this is the wrong
way to do it, and for that reason I make the point of order. In my
opinion, this amendment or this limitation places additional
burdens on the executive branch of the Government which are not now
required by law, and therefore it is legislation on an
appropriation bill; therefore subject to a point of order. . . .
Mr. Santangelo: . . . This is not legislation upon an
appropriation bill. This is a limitation of expenditures and
restrictions as to the way they shall spend these funds, and it is
in no wise legislation. I submit it does not violate the
parliamentary rules. . . .
The Chairman: (8) The Chair is prepared to rule.
---------------------------------------------------------------------------
8. Eugene J. Keogh (N.Y.).
---------------------------------------------------------------------------
The gentleman from New York [Mr. Santangelo] offered an
amendment in the nature of an addition to the pending bill by
adding a new section, the language of which was reported with the
amendment: None of the funds contained in this title may be used to
enter into a contract with any person, organization, company, or
concern which provides compensation to a retired or inactive
military or naval general officer who has been an active member of
the military forces of the United States within 5 years of the date
of enactment of this act, to which amendment the gentleman from
Michigan makes the point of order that it is legislation on an
appropriation bill.
It is obvious that the intent of this amendment is to impose a
limitation on the expenditure of the funds here appropriated, and
while the point
[[Page 6193]]
might be made that imposing limitations will impose additional
burdens, it is nevertheless the opinion of the Chair clearly a
limitation on expenditures, and therefore the Chair overrules the
point of order.
Parliamentarian's Note: On May 5, 1960,(9) an amendment
providing that none of the funds appropriated in the bill may be used
to enter into contracts with any concern having on its payroll a
retired military officer was held to be a limitation not imposing
additional duties on the executive branch.
---------------------------------------------------------------------------
9. 106 Cong. Rec. 9634-36, 86th Cong. 2d Sess.
---------------------------------------------------------------------------
The amendment in question, offered during consideration of H.R.
11998, a bill making appropriations for the Department of Defense,
stated:
[Add] new section as follows:
``Sec. 535. None of the funds contained in this Title may be
used to pay or reimburse any Defense Contractor which employs a
retired commissioned officer within two years after his release
from active duty for the purpose of selling or aiding or assisting
in the selling of anything of value to the Department of Defense or
an Armed Force of the United States, or, which within two years
from the release from active duty of a retired commissioned officer
knowingly permits any such retired commissioned officer to sell or
aid in the selling of anything of value to the Department of
Defense or an Armed Force of the United States.''
It should be noted that the language above, unlike the language of
the 1959 amendment, would seemingly require some determinations to be
made by federal officials with regard to whether a defense contractor
``knowingly'' permitted the proscribed acts, as well as the
``purposes'' for which a retired officer was employed. These complex
determinations would now probably be considered such additional burdens
placed on an official as would render the language subject to the point
of order.
In another ruling, on June 15, 1972,(10) an amendment to
a general appropriation bill providing that none of the funds therein
be used to purchase goods or services from suppliers who compensate any
of the officers or employees in excess of a certain rate was held a
valid limitation on the use of funds in the bill. Although it
coulampshire]: Mr. Chairman, I rise on a point of order.
The Chairman: The gentleman will state his point of order.
Mr. Wyman: My point of order is that section 743 as presently
worded is contrary to the rules of the House in that it is
legislation upon an appropriation bill in violation of rule XXI,
subsection 2. The section contains the positive amendment in line
25, page
[[Page 6194]]
51, that a certain amount of work must be made available, and on
page 52, lines 3 and 4, there is a specific direction to the
Secretary of Defense.
Paragraph 842 of the House Rules Manual, pursuant to rule XXI,
subsection 2, provides: ``Propositions to establish affirmative
directions for executive officers, eing any additional duties on
the executive branch and therefore in order.
On May 5, 1960,(11) the Committee of the Whole was
considering H.R. 11998, a bill making appropriations for the Department
of Defense. The following proceedings took place:
---------------------------------------------------------------------------
11. 106 Cong. Rec. 9641, 86th Cong. 2d Sess.
---------------------------------------------------------------------------
Amendment offered by Mr. [James G.] O'Hara of Michigan: On page
45, after line 6, insert the following:
``Sec. 535. No funds appropriated in this Act shall be used to
pay any amount under a contract, made after the date of enactment
of this Act, which exceeds the amount of a lower bid if such
contract would have been awarded to the lower bidder but for the
application of any policy which favors the award of such a contract
to a person proposing to perform it in a facility not owned by the
United States.''
And renumber the following section.
Mr. [Gerald R.] Ford [Jr., of Michigan]: Mr. Chairman, I am
constrained to make a point of order against the amendment offered
by the gentleman from Michigan [Mr. O'Hara]. It seems to me this
language is clearly subject to a point of order in that it imposes
additional duties on the Secretary of Defense. . . .
Mr. O'Hara of Michigan: Mr. Chairman, I would like to suggest
in connection with the point of order that this is a limitation on
an appropriation. It does not attempt to impose any additional
duties on the executive branch nor does it attempt to legislate in
an appropriation bill.
The Chairman: (12) The Chair is ready to rule. . . .
---------------------------------------------------------------------------
12. Eugene J. Keogh (N.Y.).
---------------------------------------------------------------------------
The Chair calls the attention of the committee to previous
rulings made on similar points of order and would like in addition
to call to the attention of the Committee the ruling that appears
in 4 Hinds' Precedents, page 660, in which it is clearly indicated
that a limitation is permitted on a general appropriation bill that
in effect provides a negative prohibition on the use of the money,
and no affirmative direction on the executive branch.
In the opinion of the Chair, the language here offered is a
negative prohibition and the Chair, therefore, overrules the point
of order.
Defense Contracts; Requiring Renegotiation Agreement
Sec. 59.4 To a bill making appropriations for national defense, an
amendment providing that no part of such appropriation be used for
payments under certain contracts until the contractor shall have
filed with the appropriate agency a certificate of costs and an
agreement for renegotiation satis
[[Page 6195]]
factory to the Secretary of War or Secretary of the Navy, was
conceded to be legislation and held not in order, in that it
granted new authority to an executive officer.
On Mar. 28, 1942,(13) the Committee of the Whole was
considering H.R. 6868. The following proceedings took place:
---------------------------------------------------------------------------
13. 88 Cong. Rec. 3139, 77th Cong. 2d Sess.
---------------------------------------------------------------------------
Amendment offered by Mr. [Francis H.] Case of South Dakota:
Page 36, after line 11, insert a new section as follows:
``Sec. 402-A. No part of any appropriation contained in this
act shall be available to pay that portion of a contract for
construction of any character and/or procurement of material and
supplies for either the Military or Naval Establishments,
designated as `final payment' until the contractor shall have filed
with the procuring agency a certificate of costs and an agreement
for renegotiation and reimbursement satisfactory to the Secretary
of War or the Secretary of the Navy as the case may be.''
Mr. [Clarence] Cannon of Missouri: Mr. Chairman, I make the
point of order against the amendment that under the guise of a
limitation the amendment would require executive action.
Mr. Case of South Dakota: Mr. Chairman, I concede the point of
order and offer another amendment.
The Chairman: (14) The point of order is sustained.
---------------------------------------------------------------------------
14. Schuyler Otis Bland (Va.).
---------------------------------------------------------------------------
Qualification of Contractors; Secretary's Approval
Sec. 59.5 To a defense appropriation bill, an amendment providing that
certain funds therein shall not be used under contracts awarded or
negotiated after its date of enactment unless the Secretary of
Defense finds that such contracts are covered by a vested
retirement pension program approved by the Secretary was held to
impose additional duties on that federal official and was ruled out
as legislation in violation of Rule XXI clause 2.
On Sept. 14, 1972,(15) during consideration in the
Committee of the Whole of the Defense Department appropriation bill
(H.R. 16593), a point of order was raised against the following
provision:
---------------------------------------------------------------------------
15. 118 Cong. Rec. 30758, 92d Cong. 2d Sess.
---------------------------------------------------------------------------
Amendment offered by Mr. [Barry M.] Goldwater [Jr., of
California]: On page 52, after line 8, insert the following:
``Sec. 745. No part of the funds appropriated under title IV or
V of the Act shall be made available in regard to contracts awarded
or negotiated after the enactment of this act unless the Secretary
of Defense shall first find
[[Page 6196]]
that all persons employed under such contract or subcontract
thereunder, are covered by a vested retirement pension program
approved under such standards as the Secretary of Defense shall
prescribe.''
Mr. [Sidney R.] Yates [of Illinois]: Mr. Chairman, I make a
point of order on the amendment offered by the gentleman from
California (Mr. Goldwater) that it is legislation on an
appropriation bill in that it requires additional duties on the
part of the Secretary. . . .
The Chairman: (16) The Chair has examined the
language of the amendment. The language does place additional
duties on the Secretary and, therefore, holds that the amendment is
legislation and sustains the point of order.
---------------------------------------------------------------------------
16. Daniel D. Rostenkowski (Ill.).
---------------------------------------------------------------------------
Ship Construction; Directing Percentage in Private Shipyards
Sec. 59.6 A section in a general appropriation bill requiring that at
least 35 percent of funds therein for naval vessel alteration,
overhaul, or repair shall be made available for such work in
private shipyards, except that the Secretary of Defense may
determine that urgency requires such work to be done in the Navy
yards or in private yards as he may direct, was conceded to be
legislation in violation of Rule XXI clause 2 in that it
established affirmative directions and was ruled out on a point of
order.
On Sept. 14, 1972,(17) during consideration in the
Committee of the Whole of the Defense Department appropriation bill
(H.R. 16593), a point of order was raised against the following
provision:
---------------------------------------------------------------------------
17. 118 Cong. Rec. 30749, 92d Cong. 2d Sess.
---------------------------------------------------------------------------
The Chairman: (18) The Clerk will read.
---------------------------------------------------------------------------
18. Daniel D. Rostenkowski (Ill.).
---------------------------------------------------------------------------
The Clerk read as follows:
Sec. 743. Of the funds made available in this Act for the
alteration, overhaul, and repair of naval vessels, at least 35
per centum thereof must be made available for such work in
privately owned shipyards: Provided, That if determined by the
Secretary of Defense to be inconsistent with the public
interest based on urgency of requirement to have such vessels
altered, overhauled, or repaired as required, such work may be
done in Navy or private shipyards as he may direct.
Mr. [Louis C.] Wyman [of New Hampshire]: Mr. Chairman, I rise
on a point of order.
The Chairman: The gentleman will state his point of order.
Mr. Wyman: My point of order is that section 743 as presently
worded is contrary to the rules of the House in that it is
legislation upon an appropriation bill in violation of rule XXI,
[[Page 6197]]
subsection 2. The section contains the positive amendment in line
25, page 51, that a certain amount of work must be made available,
and on page 52, lines 3 and 4, there is a specific direction to the
Secretary of Defense.
Paragraph 842 of the House Rules Manual, pursuant to rule XXI,
subsection 2, provides: ``Propositions to establish affirmative
directions for executive officers, even in cases where they may
have discretion under the law so to do,''--``are subject to the
point of order,'' as are positive requirements in such legislation
constituting legislation upon an appropriations bill.
Mr. Chairman, I urge that the section be ruled out of order.
Mr. [George H.] Mahon [of Texas]: Mr. Chairman, the point of
order is conceded.
The Chairman: The point of order is conceded. The Chair
sustains the point of order.
Granting Discretionary Authority
Sec. 59.7 Language providing an appropriation for purposes which in the
discretion of the Secretary of the Army are desirable in expediting
production for military purposes was held to be legislation and not
in order.
On Aug. 9, 1951,(19) during consideration in the
Committee of the Whole of the Defense Department appropriation bill
(H.R. 5054), a point of order was raised against the following
provision:
---------------------------------------------------------------------------
19. 97 Cong. Rec. 9733, 82d Cong. 1st Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
Expediting Production
To enable the Secretary of the Army, without reference to
section 3734 of the Revised Statutes, as amended, and to
section 1136 of the Revised Statutes, as amended (except
provisions thereof relating to title approval), to expedite the
production of equipment and supplies for the Army for emergency
national defense purposes, including all of the objects and
purposes specified under each of the appropriations available
to the Department of the Army during the current fiscal year,
for procurement or production of equipment or supplies, for
erection of structures, or for acquisition of land; the
furnishing of Government-owned facilities at privately owned
plants: the procurement and training of civilian personnel in
connection with the production of equipment and material and
the use and operation thereof; and for any other purposes which
in the discretion of the Secretary of the Army are desirable in
expediting production for military purposes, $1,000,000,000.
Mr. [Richard B.] Wigglesworth [of Massachusetts]: Mr. Chairman,
I make a point of order, on the ground that it is legislation on an
appropriation bill, against the language . . . reading as follows:
``and for any other purposes which in the discretion of the
Secretary of the Army are desirable in expediting production for
military purposes.''
The Chairman: (20) Does the gentleman from Texas
desire to be heard on the point of order?
---------------------------------------------------------------------------
20. Eugene J. Keogh (N.Y.).
---------------------------------------------------------------------------
[[Page 6198]]
Mr. [George H.] Mahon [of Texas]: Mr. Chairman, I am not
prepared to say that the language is subject to a point of order. I
doubt, however, that the language is necessary. I have no serious
objection to the language being stricken from the bill, but I do
not want to concede that the language is subject to a point of
order.
The Chairman: Can the gentleman refer the Chair to any specific
law with reference to this language?
Mr. Mahon: I do not have the language of the basic legislation
before me, Mr. Chairman.
The Chairman: The Chair is of the opinion that it is
legislation on an appropriation bill and therefore is subject to
the point of order. The point of order is sustained.
Requiring Sole Accounting and Reports on Confidential Military
Operations
Sec. 59.8 A paragraph in a general appropriation bill providing for
contingent expenditures by the Secretary of Defense to be accounted
for solely on his certificate that the expenses were for
confidential military purposes and providing for a quarterly report
of such disbursements to Congress was held to impose additional
duties on the Secretary and was ruled out as legislation.
On Nov. 30, 1973,(1) during consideration in the
Committee of the Whole of the Defense Department appropriation bill
(H.R. 11575), a point of order was raised against the following
provision:
---------------------------------------------------------------------------
1. 119 Cong. Rec. 38825, 93d Cong. 1st Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
Contingencies, Defense
For emergencies and extraordinary expenses arising in the
Department of Defense, to be expended on the approval or
authority of the Secretary of Defense and such expenses may be
accounted for solely on his certificate that the expenditures
were necessary for confidential military purposes; $5,000,000:
Provided, That a report of disbursements under this item of
appropriation shall be made quarterly to Congress.
Mr. [Robert C.] Eckhardt [of Texas]: Mr. Chairman, I wish to
reserve a point of order with respect to the whole section, and to
make the point of order with respect to the provisions reading as
follows:
And such expenses may be accounted for solely on his
certificate that the expenditures were necessary for
confidential military purposes.
The point of order which is stated and made is by the same
proposition made with respect to the same language which occurs
elsewhere in the bill. The point of order is reserved, which I do
not wish to make at this time until I check whether or not the
special contingencies defense is authorized by an authorization
bill or by existing statutory law.
I point out to the Chair that the operation and maintenance
defense agencies provision had a section there of $5,448,000 in it
that was, of course, not disturbed by my previous point of
[[Page 6199]]
order, and this appears to be made up so that the Defense
Department would have some $10,448,000 if this is included.
The Chairman: (2) The Chair would like to make the
observation that the gentleman from Texas (Mr. Eckhardt) should
make his point of order while the paragraph is pending.
---------------------------------------------------------------------------
2. Daniel D. Rostenkowski (Ill.).
---------------------------------------------------------------------------
Mr. Eckhardt: Mr. Chairman, in that event, I will make both
points of order; one against the entire paragraph and the other
against the phrase involved. However, I would not press the point
of order--well, of course, if it is not justified, it can be shown
it is not justified, so I do make the two points of order.
The Chairman: Does the gentleman from Texas (Mr. Mahon) wish to
be heard on the point of order?
Mr. [George H.] Mahon: I do, Mr. Chairman.
Mr. Chairman, 7 Cannon's Precedents 1273, February 13, 1919,
states:
The organic law creating a department authorizes necessary
contingent expenses incident to its maintenance.
This provision has been in the appropriation bill for decades,
and I am not able to cite anything more than I have cited in
defense of the language. This language has been carried in the
Defense Appropriations Act for as long as I can remember.
The Chairman: The Chair notes that the paragraph does have
legislation, since it requires a report and imposes additional
duties. Therefore, the Chair sustains the point of order.
Mr. Eckhardt: Mr. Chairman, that would be both points of order?
The Chairman: The point of order is sustained against the
paragraph.
Requiring Reports on Feasibility Projects
Sec. 59.9 To a general appropriation bill making appropriations for
foreign assistance, an amendment prohibiting the use of any funds
carried in the bill for certain capital projects costing in excess
of $1 million until the head of the agency involved has received
and considered a report, prepared by officials within the agency,
on the justification and feasibility of such project was held to
impose additional duties and was ruled out as legislation.
On Nov. 17, 1967,(3) during consideration in the
Committee of the Whole of the foreign aid appropriation bill (H.R.
13893), a point of order was raised against the following amendment:
---------------------------------------------------------------------------
3. 113 Cong. Rec. 32975, 90th Cong. 1st Sess.
---------------------------------------------------------------------------
Mr. [Jeffery] Cohelan [of California]: Mr. Chairman, I offer an
amendment.
The Clerk read as follows:
Amendment offered by Mr. Cohelan: On page 14, immediately
after line 16, insert the following:
``Sec. 120. None of the funds appropriated or made
available by this
[[Page 6200]]
Act for carrying out titles I, II, and VI of chapter 2, and
chapter 4, of part I of the Foreign Assistance Act of 1961, as
amended, may be used for financing, in whole or in part, any
capital assistance project as estimated to cost in excess of
$1,000,000, until the head of the agency primarily responsible
for administering part I of such Act has received and taken
into consideration a report on the review of the proposed
capital assistance project, conducted by the Controller of such
agency with such assistance from other divisions of such agency
as he may request, which report shall set forth the
Controller's views, comments, and such recommendations as he
may deem appropriate with respect to the adequacy of the
justification, feasibility studies, and prospects for effective
utilization of such project.''. . .
Mr. [John J.] Rooney of New York: Mr. Chairman, I must insist
upon my point of order to the pending amendment.
The Chairman: (4) Does the gentleman from New York
wish to be heard on his point of order?
---------------------------------------------------------------------------
4. Charles M. Price (Ill.).
---------------------------------------------------------------------------
Mr. Rooney of New York: Yes. The point of order is based on the
fact that this puts language in the bill, by this amendment, which
would cause additional duties to be performed, and it is therefore
legislation on an appropriation bill.
The Chairman: Does the gentleman from California desire to be
heard on the point of order raised by the gentleman from New York?
Mr. Cohelan: Mr. Chairman, I was not aware that this procedural
point would be raised. It would seem to me that, on the basis of
the arguments that have been going on almost the entire afternoon,
and on the basis of the references made by my distinguished
colleague from Maryland in reference to the functions of the
Committee on Appropriations, that I will choose to regard my
proposal as a limiting amendment, and therefore germane to the
argument before us today.
The Chairman: The Chair is ready to rule.
The amendment offered by the gentleman from California adds a
new section to the bill which would impose additional duties,
determinations, and obligations upon the head of an agency that are
not now required under existing law. Therefore the Chair holds that
the amendment proposes additional legislation on an appropriation
bill.
The Chair, therefore, sustains the point of order.
Requiring Monthly Reports on Small Business
Sec. 59.10 To an appropriation bill, an amendment which would require
the Department of Defense to make monthly reports showing the
amount of funds spent with small business as defined by the Small
Business Administration, and the funds spent with firms other than
small business in the same fields of operation, was held to be
legislation and therefore not in order.
[[Page 6201]]
On May 12, 1955,(5) during consideration in the
Committee of the Whole of the Defense Department appropriation bill
(H.R. 6042), a point of order was raised against the following
amendment:
---------------------------------------------------------------------------
5. 101 Cong. Rec. 6244, 6245, 84th Cong. 1st Sess.
---------------------------------------------------------------------------
Mr. [Wright] Patman [of Texas]: Mr. Chairman, I offer an
amendment.
The Clerk read as follows:
Amendment offered by Mr. Patman: In section 611, on page
37, at the end of line 9, strike the period and substitute a
colon and add the following language: ``Provided further, That,
for the purposes of aiding in carrying out the national policy
to insure that a fair proportion of the total purchases and
contracts for supplies and services for the Government be
placed with small-business enterprises, and to maintain and
strengthen the overall economy of the Nation, the Department of
Defense shall make a monthly report to the President, the
President of the Senate and the Speaker of the House of
Representatives not less than 45 days after the close of the
month, showing the amount of funds appropriated to the
Department of Defense which have been expended, obligated, or
contracted to be spent with small business as defined by the
Small Business Administration, and the amount of such funds
expended, obligated, or contracted to be spent with firms other
than small business in the same fields of operation; and such
monthly reports shall show separately the funds expended,
obligated, or contracted to be spent for basic and applied
scientific research and development.''
Mr. [Harry R.] Sheppard [of California]: Mr. Chairman, I make a
point of order against the amendment on the ground that it is
legislation on an appropriation bill. It imposes new duties on the
Department which are not presently authorized by law. . . .
The Chairman: (6) Does the gentleman from Texas
desire to be heard on the point of order?
---------------------------------------------------------------------------
6. Eugene J. Keogh (N.Y.).
---------------------------------------------------------------------------
Mr. Patman: Yes, Mr. Chairman. The amendment is a limitation on
the language that is in the bill. It merely requires reporting to
be done.
The Chairman: The amendment offered by the gentleman from Texas
imposes additional duties which are substantive in nature and,
therefore, the proposed amendment is legislation on an
appropriation bill. The Chair sustains the point of order.
Where Exception From a Limitation Requires New Duty
Sec. 59.11 An amendment to an appropriation bill providing that no part
of the appropriations therein shall be used to pay compensation of
any incumbent appointed to fill a vacancy, and providing that this
inhibition shall not apply to employees of certain agencies when
certified by the head of the agency to be employed on matters
essential to the national defense effort, was conceded to be
legislation and held not in order.
[[Page 6202]]
On May 4, 1951,(7) during consideration in the Committee
of the Whole of the independent offices appropriation bill (H.R. 3880),
a point of order was raised against the following amendment:
---------------------------------------------------------------------------
7. 97 Cong. Rec. 4914, 82d Cong. 1st Sess.
---------------------------------------------------------------------------
Mr. [Ben F.] Jensen [of Iowa]: Mr. Chairman, I offer an
amendment.
The Clerk read as follows:
Amendment offered by Mr. Jensen: Page 63, after line 12,
insert a new section as follows:
``No part of any appropriation or authorization contained
in this act shall be used to pay the compensation of any
incumbent appointed to any civil office or position which may
become vacant during the fiscal year beginning on July 1, 1951:
Provided, That this inhibition shall not apply--
``(a) to not to exceed 25 percent of all vacancies;
``(b) to positions filled from within the agency;
``(c) to offices or positions required by law to be filled
by appointment of the President by and with the advice and
consent of the Senate;
``(d) to all employees in veterans' medical facilities;
``(e) to employees in the Atomic Energy Commission and the
National Advisory Committee for Aeronautics who are certified
by the head of the agency, in writing, as being directly
employed on matters essential to the National Defense effort;
``(f) to employees of the General Accounting Office;
``(g) to employees in grades CPC 1 and 2;
``Provided further, That when any department or agency
covered in this bill shall, as a result of the operation of
this amendment reduce their employment to a figure not
exceeding 80 percent of the total number on their rolls as of
July 1, 1951, such amendment shall cease to apply and said 80
percent figure shall become a ceiling for employment during the
fiscal year 1952 and if exceeded at any time during fiscal year
1952 this amendment shall again become operative.''
Mr. [Albert] Thomas [of Texas]: Mr. Chairman, I make a point of
order against the amendment that it places an additional duty upon
several of the agencies involved and is, therefore, subject to a
point of order. For instance, this language is used: ``to employees
in the Committee for Aeronautics who are certified by the head of
the agency.''
Now, that is placing an additional duty on the head of that
agency, extra duties and extra authority on him, therefore it is
subject to a point of order. Also it says: ``in writing, as being
directly employed on matters essential to the national defense.''
He has got to make a decision there as to what is national
defense. He has to make a decision as to what is an essentiality.
Therefore, that is placing an additional duty beyond the scope that
is proper at this point and, therefore, it is subject to a point of
order. I suggest that the point of order go to the entire
paragraph. It should be stricken in its entirety.
The Chairman: (8) Does the gentleman from Iowa [Mr.
Jensen] desire to be heard?
---------------------------------------------------------------------------
8. James W. Trimble (Ark.).
---------------------------------------------------------------------------
Mr. Jensen: Mr. Chairman, I concede the point of order.
The Chairman: The point of order is sustained.
[[Page 6203]]
Authorizing Transfer of Trust Funds for Salary Increases
Sec. 59.12 Language in a general appropriation bill authorizing a
transfer of trust funds sufficient to pay increased salary costs
and imposing additional duties on the Administrator of Veterans'
Affairs was conceded to be legislation on an appropriation bill and
was ruled out by the Chair.
On Apr. 10, 1963,(9) during consideration in the
Committee of the Whole of a supplemental appropriation bill (H.R.
5517), the following point of order was raised:
---------------------------------------------------------------------------
9. 109 Cong. Rec. 6160, 6161, 88th Cong. 1st Sess.
---------------------------------------------------------------------------
Mr. [H. R.] Gross [of Iowa]: Mr. Chairman, I call attention to
the language in lines 15 through 20 on page 49, which reads as
follows:
Sec. 203. The Administrator of Veterans' Affairs shall have
the authority to transfer not to exceed $1,795,000 from the
``Loan guaranty revolving fund'' to any other appropriations of
the Veterans' Administration to pay for increased pay costs
authorized by or pursuant to law for fiscal year 1963 if in his
discretion he finds it necessary.
Mr. Chairman, I make the point of order against the language of
section 203 on the ground that it is legislation on an
appropriation bill. I read from the report of the committee:
The committee has included a provision which will enable
the Administrator in his discretion to use not to exceed
$1,795,000 from the loan guaranty revolving fund to cover the
cost of such pay increases if he finds it necessary.
I submit this goes beyond the scope of the Appropriations
Committee and that it imposes additional duties upon the Director
of the Veterans' Administration.
The Chairman: (10) Does the gentleman from Texas
desire to be heard on the point of order?
---------------------------------------------------------------------------
10. Richard Bolling (Mo.).
---------------------------------------------------------------------------
Mr. [Albert] Thomas [of Texas]: I do, Mr. Chairman.
Mr. Chairman, the point of order made by the gentleman from
Iowa is valid. . . .
Mr. Gross: The gentleman will agree that the money will come
from the loan guarantee revolving fund and not from funds
appropriated to the Veterans' Administration specifically for
increased pay costs.
Mr. Thomas: It is not from appropriated funds.
Mr. Gross: And the war veterans could be penalized through such
use of revolving funds.
Mr. Thomas: No, the veterans will not be penalized. It will
help them.
Mr. Gross: Mr. Chairman, I insist on the point of order.
The Chairman: The gentleman concedes the point of order made by
the gentleman from Iowa is well taken.
The Chair sustains the point of order.
Extension of Foreign Service Appointments
Sec. 59.13 A provision in a general appropriation bill giving
[[Page 6204]]
the Secretary of State authority to extend foreign service reserve
appointments through another year--thus changing the Secretary's
authority under existing law--was conceded to be legislation and
was ruled out on a point of order.
On May 28, 1968,(11) during consideration in the
Committee of the Whole of a general appropriation bill (H.R. 17522), a
point of order was raised against the following provision:
---------------------------------------------------------------------------
11. 114 Cong. Rec. 15353, 90th Cong. 2d Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
Sec. 106. Existing appointments and assignments to the
Foreign Service Reserve in the Department of State which expire
during the current fiscal year may be extended in the
discretion of the Secretary of State for a period of one year
in addition to the period of appointment or assignment
otherwise authorized.
Mr. [H. R.] Gross [of Iowa]: Mr. Chairman, I make a point of
order against the language beginning with line 25, on page 13, and
extending through line 5 on page 14 as being legislation on an
appropriation bill and as calling for added authority on the part
of the Department of State without the authority of Congress.
The Chairman: (12) Does the gentleman from New York
desire to be heard on the point of order?
---------------------------------------------------------------------------
12. Wayne L. Hays (Ohio).
---------------------------------------------------------------------------
Mr. [John J.] Rooney [of New York]: Mr. Chairman, I am
constrained to admit that the point of order is valid.
The Chairman: The point of order is sustained.
Authority to Terminate Employment by Secretary of State
Sec. 59.14 Language in a general appropriation bill providing that the
Secretary of State may, in his discretion, terminate the employment
of any employee of the Department of State or the Foreign Service
whenever he shall deem such termination advisable in the interests
of the United States, was held to be legislation on an
appropriation bill and not to be a retrenchment within the
provisions of the Holman rule.
On Apr. 20, 1950,(13) during consideration in the
Committee of the Whole of a general appropriation bill (H.R. 7786), a
point of order was raised against the following provision:
---------------------------------------------------------------------------
13. 96 Cong. Rec. 5480, 5481, 81st Cong. 2d Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
Sec. 104. Notwithstanding the provisions of section 6 of
the act of August 24, 1912 (37 Stat. 555), or the provisions of
any other law, the Secretary of State may, in his absolute
discretion, during the current fiscal year, terminate the
employment of
[[Page 6205]]
any officer or employee of the Department of State or of the
Foreign Service of the United States whenever he shall deem
such termination necessary or advisable in the interests of the
United States. . . .
Mr. [Vito] Marcantonio [of New York]: Mr. Chairman, a point of
order. The language of section 104 gives to the Secretary of
State--and I quote from the section--``in his absolute discretion
power to terminate the employment of any employee. I do not believe
we have ever had legislation in the entire history of this Nation
which contained this language ``absolute discretion.''. . . It is
my opinion that this language ``absolute discretion'' is a piece of
very undemocratic legislation on an appropriation bill and I make
the point of order against it. It should be stricken from the bill.
The Chairman: (14) Does the gentleman from New York
[Mr. Rooney] desire to be heard on the point of order?
---------------------------------------------------------------------------
14. Jere Cooper (Tenn.).
---------------------------------------------------------------------------
Mr. [John J.] Rooney: Mr. Chairman, this provision is
familiarly known as the McCarran rider and has been in the State
Department appropriation bill since 1947. . . . I oppose the point
of order, Mr. Chairman. I feel that having been in this bill since
1947 and because it is so necessary that our State Department be
what the public of America wants it to be, the language should be
continued in the bill.
The Chairman: Does the gentleman from New York [Mr. Rooney]
concede that it is legislation?
Mr. Rooney: Mr. Chairman, may I most respectfully state that on
this subject I will not concede anything.
Mr. [John] Taber [of New York]: Mr. Chairman, in my opinion
this will result in a saving. It is in accordance with the
provisions of the Holman rule. When the power authorized in this
language is exercised and the Secretary terminates the employment
of any officer or employee in his absolute discretion that will
result in a saving. That will save money and is in order.
The Chairman: The Chair is prepared to rule.
. . . The Chair invites attention to the fact that the language
does confer definite authority and requires certain acts on the
part of the Secretary of State. In response to the argument offered
by the gentleman from New York [Mr. Taber] as to the application of
the Holman rule it is clearly shown by the precedents and decisions
of the House that the saving must be apparent and definite on its
face in the language of the bill in order for the Holman rule to
apply. Certainly an examination of the language in question clearly
shows that any saving would be speculative. In view of the long
line of precedents and decisions dealing with the question of
legislation on an appropriation bill, which is clearly prohibited
under the rules of the House, the Chair has no alternative other
than to sustain the point of order.
Requiring Certification of Security Clearance
Sec. 59.15 An amendment to an appropriation bill in the form of a
limitation providing that no part of any appropriation in the act
shall be used to pay the salary of
[[Page 6206]]
any person appointed to the Department of State until essential
clearance as to loyalty has been certified by the Federal Bureau of
Investigation was held to be legislation on an appropriation bill
and not in order.
On May 2, 1946,(15) during consideration in the
Committee of the Whole of a general appropriation bill (H.R. 6056), a
point of order was raised against the following amendment:
---------------------------------------------------------------------------
15. 92 Cong. Rec. 4366, 4367, 79th Cong. 2d Sess.
See also 92 Cong. Rec. 2695, 79th Cong. 2d, Sess., Mar. 27,
1946.
---------------------------------------------------------------------------
Mr. [Richard B.] Wigglesworth [of Massachusetts]: Mr. Chairman,
I offer an amendment.
The Clerk read as follows:
Amendment offered by Mr. Wigglesworth: On page 32, line 23,
after the period insert a new paragraph reading as follows:
``No part of any appropriation in this act shall be used to
pay the salary or wage of any person appointed or transferred
to the Department of State after September 1, 1945, until
essential clearance as to loyalty has been certified by the
Federal Bureau of Investigation and the appropriate security
committee of the State Department.''. . .
Mr. [Louis C.] Rabaut [of Michigan]: Mr. Chairman, I renew my
point of order and insist on it for the reason it is a direction
under the guise of a limitation which casts a serious reflection on
the personnel of the State Department and it will cripple their
activites. I know all Members of the House appreciate how serious
my own thoughts have been along the very same lines. I have
expressed myself time and time again on this and the hearings are
replete and filled with statements made by the chairman and other
members of the committee on that subject. We have brought this
forcibly to their attention, but this is too drastic an amendment.
Mr. Chairman, I insist on the point of order. . . .
The Chairman: (16) The Chair is ready to rule. . . .
---------------------------------------------------------------------------
16. Wilbur D. Mills (Ark.).
---------------------------------------------------------------------------
The language through the figures ``1945'' is nothing other than
a limitation, perhaps; but the remainder of the language does
impose responsibilities and duties upon the Federal Bureau of
Investigation which it may not now be called upon to perform under
existing law.
The Chair is, therefore, constrained to sustain the point of
order made by the gentleman from Michigan.
Requiring International Organizations to Pay Assessments in Arrears
Sec. 59.16 To a bill making appropriations for the Department of State,
including an item for contributions to various international
organizations, an amendment providing that none of the funds might
be expended until all other members of such organiza
[[Page 6207]]
tions have met their financial obligations was ruled out as
legislation requiring determinations of indebtedness.
On May 28, 1968,(17) the Committee of the Whole was
considering H.R. 17522, a bill making appropriations for the
Departments of State, Justice, and the Judiciary. The Clerk read as
follows, and proceedings ensued as indicated below:
---------------------------------------------------------------------------
17. 114 Cong. Rec. 15350, 90th Cong. 2d Sess.
---------------------------------------------------------------------------
For expenses, not otherwise provided for, necessary to meet
annual obligations of membership in international multilateral
organizations, pursuant to treaties, conventions, or specific Acts
of Congress, $118,453,000.
Mr. [H. R.] Gross [of Iowa]: Mr. Chairman, I offer an
amendment.
The Clerk read as follows:
Amendment offered by Mr. Gross: On page 5, line 13, replace
the period with a colon, and add the following:
``Provided, That none of these moneys shall be expended
until such time as the financial obligations, past and present,
of all other members of each multilateral organization to which
this paragraph applies, shall have been fully met.''. . .
Mr. [John J.] Rooney [of New York]: Mr. Chairman, the point of
order is that the amendment would require someone to do additional
duties, to make a determination of what is suggested in this
amendment, and therefore it is subject to a point of order.
The Chairman: (18)) Does the gentleman from Iowa
wish to be heard on the point of order?
---------------------------------------------------------------------------
18. Wayne L. Hays (Ohio).
---------------------------------------------------------------------------
Mr. Gross: Only, Mr. Chairman, that it is patently a limitation
on the appropriation bill.
The Chairman: The Chair believes that this amendment does
provide additional duties inasmuch as it says that none of these
moneys shall be expended until such time as national obligations,
past and present, and so on, shall be fully met, and therefore
somebody would have to make a pretty thorough study to decide
whether this has been met. Therefore, the Chair sustains the point
of order.
Restriction of Foreign Aid to Nations Believed to be Communist
Controlled
Sec. 59.17 To an appropriation bill, an amendment providing that no
part of any appropriation therein shall be used to make grants or
loans to any country which the Secretary of State believes to be
dominated by the foreign government controlling the world Communist
movement was held to be legislation.
On July 11, 1955,(19) during consideration in the
Committee of the Whole of the mutual security ap
[[Page 6208]]
propriation bill (H.R. 7224), a point of order was raised against the
following amendment:
---------------------------------------------------------------------------
19. 101 Cong. Rec. 10245, 84th Cong. 1st Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
Amendment offered by Mr. Murray of Illinois: Page 12, after
line 10, insert the following section:
``Sec. 109. No part of any appropriation contained in this
act shall be used to make grants or loans, or otherwise to
furnish assistance, to any country the government of which the
Secretary of State believes to be substantially directed,
dominated, or controlled by the foreign government or foreign
organization controlling the world Communist movement referred
to in section 2 of the Subversive Activites Control Act of
1950.''
Mr. [Otto E.] Passman [of Louisiana]: Mr. Chairman, I reserve a
point of order against the amendment.
Mr. [James C.] Murray [of Illinois]: Mr. Chairman, I am going
to be very brief. I think the language of my amendment speaks for
itself, and urge its adoption.
Mr. Passman: Mr. Chairman, I make a point of order against the
amendment that it is legislation on an appropriation bill.
The Chairman: (20) The amendment offered by the
gentleman from Illinois imposes on the Secretary of State
additional duties, and, in the opinion of the Chair, the imposition
of those additional duties constitutes legislation on an
appropriation bill. Therefore, the point of order is sustained.
---------------------------------------------------------------------------
20. Francis E. Walter (Pa.).
---------------------------------------------------------------------------
Curtailing Funds to Nations Restricting Emigration
Sec. 59.18 To a general appropriation bill containing funds for foreign
assistance, an amendment denying the availability of those funds to
any nation ``which requires payment above nominal and customary
costs'' for emigration permits was held to impose additional duties
of investigation and interpretation upon federal officials and was
ruled out as legislation in violation of Rule XXI clause 2.
On Sept. 21, 1972,(1) during consideration in the
Committee of the Whole of the foreign assistance appropriation bill
(H.R. 16705), a point of order was raised against the following
amendment:
---------------------------------------------------------------------------
1. 18 Cong. Rec. 31835, 31836, 92d Cong. 2d Sess.
---------------------------------------------------------------------------
Mr. [Charles A.] Vanik [of Ohio]: Mr. Chairman, I offer an
amendment.
The Clerk read as follows:
Amendment offered by Mr. Vanik: On page 17, after line 12,
add the following new section:
``Sec. 506. None of the funds appropriated or made
available pursuant to this Act for carrying out the Foreign
Assistance Act of 1961, as amended, may be used to provide
loans, credits, financial and investment assistance, or
insurance guarantees on sales to or investments in any Nation
which requires payment above nominal and customary costs for
exit visas, exit permits, or for the right to emigrate.''
Mr. [Otto E.] Passman [of Louisiana]: Mr. Chairman, I reserve a
[[Page 6209]]
point of order against the amendment. . . .
The Chairman:(2) The gentleman will state his point
of order.
---------------------------------------------------------------------------
2. Charles M. Price (Ill.).
---------------------------------------------------------------------------
Mr. Passman: The amendment imposes additional duties on the
executive branch in that it requires a determination as to what
constitutes a payment above normal and customary cost for exit
visas, permits, or the right to emigrate. I would not know how this
could be determined without imposing additional duties upon the
executive branch.
Upon that basis I plead that the point of order should and I
hope it will be sustained.
The Chairman: Does the gentleman from Ohio desire to be heard
on the point of order?
Mr. Vanik: I do not feel that the ancient, decadent body of
precedent should prevent a Member from making a legitimate and
proper amendment to this bill. We should not be restrained in our
legislative efforts in dealing with present-day problems by the
dead hand of the past.
I ask for a ruling, Mr. Chairman.
The Chairman: The Chair is ready to rule. . . .
The Chair has examined the amendment, and finds that it would
prohibit use of funds appropriated or made available pursuant to
this act, in any nation which requires payment above nominal and
customary costs for exit visas, exit permits, or for the right to
emigrate. It is apparent to the Chair that someone must make a
determination of the ``nominal'' and ``customary'' cost, thus
imposing additional duties on the executive branch; and therefore
in the opinion of the Chair the language constitutes legislation on
an appropriation bill. The Chair sustains the point of order.
Prohibiting Funds for International Organizations for Interest Costs
Sec. 59.19 An amendment to a general appropriation bill prohibiting the
availability of funds for international organizations to pay
interest costs for loans was ruled out as legislation, requiring
federal officials to make determinations not required by existing
law as to interest costs paid by international organizations.
On Dec. 9, 1982,(3) during consideration in the
Committee of the Whole of the Departments of Commerce, Justice, State,
and the Judiciary appropriation bill (H.R. 6957), a point of order
against an amendment was sustained as follows:
---------------------------------------------------------------------------
3. 128 Cong. Rec.----, 97th Cong. 2d Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
Amendment offered by Mr. [Neal] Smith of Iowa: On page 30,
line 2, after ``$449,815,000'' insert the following:
``Provided, That none of the funds appropriated in this
paragraph shall be available for a United States contribution
to an international or
[[Page 6210]]
ganization for any interest costs for loans incurred on or
after October 1, 1982.''. . .
Mr. [Clement J.] Zablocki [of Wisconsin]: Mr. Chairman, I make
a point of order on the same basis that I have raised the point of
order on the proviso that was in the bill originally. This
amendment will still require the executive branch to make a
determination of what international organizations are paying
interest, and to what extent, and that this money would not
therefore be available in that portion of our U.S. assessment. So,
this goes beyond the present procedure that the executive branch is
required to make on our existing law.
Therefore, the amendment of the gentleman from Iowa as
substituted for the original language in the bill would clearly
impose upon the executive branch the new duties not now required by
law; and, I submit, still fundamentally legislation in an
appropriation bill and is in violation of the letter and spirit of
clause 2, rule XXI. I hope that the point of order will be
sustained. . . .
It is the understanding of the gentleman from Iowa that in
order to make a determination as to the amount of interest, the
executive branch would have to require the organizations to make an
investigation to what extent interest payments are included in the
U.S. assessment. May I further ask, would the gentleman's amendment
also require that conditions be imposed on our contribution
requiring an agreement with the United Nations that we now do have
as far as our assessment, but not as far as to what the proviso or
the amendment of the gentleman from Iowa provides?
Mr. Smith of Iowa: Mr. Chairman, I do not think we get into
what kind of an agreement may be necessary here. We do not even
attempt to do that. But they have the records that would be
necessary anyway in reviewing their contributions and how much we
owed the United Nations. The State Department has those records
anyway. They have to have them in order to make the payments. So
there is not anything extra here other than some incidental matter
of looking at some papers.
The Chairman: (4). . . The gentleman from Wisconsin
(Mr. Zablocki) makes a point of order with regard to the amendment
offered by the gentleman from Iowa (Mr. Smith) for essentially the
same reasons that he used against the original proviso, in that it
constitutes legislation on an appropriations bill by virtue of the
fact that it imposes additional duties upon the executive branch.
---------------------------------------------------------------------------
4. George E. Brown, Jr. (Calif.).
---------------------------------------------------------------------------
It is the opinion of the Chair that the gentleman from
Wisconsin (Mr. Zablocki) is correct, that there are additional
duties which are not trivial which are imposed upon the executive
branch, to determine interest amounts and, therefore, the Chair
sustains the point of order.
Parliamentarian's Note: The amendment offered above by Mr. Smith
sought to achieve the same result as language that had been ruled out
of order when carried in the original bill. [See Sec. 52.31, supra, for
the language of the bill
[[Page 6211]]
and the ruling on the point of order.] Subsequently, on Dec. 9, Mr.
Smith offered the following amendment:
Amendment offered by Mr. Smith of Iowa: On page 30, line 2,
after ``$449, 815,000'' insert the following: ``Provided, That none
of the funds appropriated in this paragraph shall be available for
a United States contribution to an international organization for
those interest costs made known to the United States Government by
such international organization for loans incurred on or after
October 1, 1982.
The amendment in this form was not subject to a point of order. See 7
Cannon's Precedents Sec. 1695, where information ``already known'' to a
federal official was held in order as a proper limitation not requiring
new determinations. Where the language on its face merely recites a
passive situation as a condition precedent for receipt of funds, as
opposed to imposing an ongoing responsibility on a federal official to
ascertain information, the language may be a proper limitation.
Limiting Funds for Medical Expenses to Percentage of Customary Charges
Sec. 59.20 A portion of a paragraph in a general appropriation bill
denying the use of funds therein under the CHAMPUS program for
reimbursement of health care providers in excess of the 80th
percentile of customary charges made for similar services in the
same locality was ruled out as legislation in violation of Rule XXI
clause 2, where existing law did not impose an affirmative
requirement for such determinations but merely authorized issuance
of regulations on the subject of reimbursement, even though federal
officials were in fact already making such findings pursuant to
regulations.
On Aug. 8, 1978,(5) during consideration in the
Committee of the Whole of the Department of Defense appropriation bill
(H.R. 13635), a point of order was sustained against the following
provision in the bill:
---------------------------------------------------------------------------
5. 124 Cong. Rec. 24959, 24960, 95th Cong. 2d Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
Sec. 844. None of the funds contained in this Act available
for the Civilian Health and Medical Program of the Uniformed
Services under the provisions of section 1079 (a) of title 10,
United States Code, shall be available for . . . (f)
reimbursement of any physician or other authorized individual
provider of medical care in excess of the eightieth percentile
of the customary charges made for similar services in the same
locality where the medical care was furnished. . . .
[[Page 6212]]
Mr. [Elwood H.] Hillis [of Indiana]: Mr. Chairman, I make a
point of order against the language of section 844(f) on the
grounds that it violates rule XXI, clause 2 of the rules of the
House in that it constitutes legislation in an appropriation bill.
Section 844 refers to section 1079(a), title 10 of the United
States Code. However, section 1079(a) states that the ``methods for
making payment shall be prescribed under joint regulations issued
by the Secretary of Defense and the Secretary of Health, Education,
and Welfare.''. . .
Mr. Chairman, I also cite section 842 of Jefferson's Manual
which states in part that--
Propositions to establish affirmative directions for
executive offices even in cases where they may have discretion
under the law so to do are subject to a point of order.
While section 1076 of title 10, United States Code grants the
Secretary authority to promulgate regulations, part (f) of section
844 of this bill dictates to him the method of determining payments
thereby eliminating any discretionary authority on his part. This
is clearly legislation insomuch as it requires the Secretary to
determine customary charges made for similar services in the same
locality where the medical care was furnished. Nowhere in the
permanent law is the Secretary required to make these
determinations. . . .
Mr. [George H.] Mahon [of Texas]: Mr. Chairman, this provision
in the defense bill grows out of the legislation establishing the
CHAMPUS operation. The committee maintains that the language in the
bill specifically provides for a limitation in expenditures and
that the provision in the bill is not subject to a point of order.
The Chairman: (6) What the gentleman from Texas (Mr.
Mahon) suggests does not apply to that part of the paragraph to
which the gentleman from Indiana (Mr. Hillis) makes the point of
order.
---------------------------------------------------------------------------
6. Daniel D. Rostenkowski (Ill.).
---------------------------------------------------------------------------
The Chair observes that the language does require a
determination as to what local and customary charges are, and there
is nothing presently in existing law that requires those
determinations to be made during the next fiscal year. The
authorization bill containing such authority is not yet law.
The Chair sustains the point of order with respect to
subparagraph (f) to which the gentleman referred.
Parliamentarian's Note: The authorizing law was later amended to
require the determination of customary charges.
Limiting Funds for International Narcotics Control; Requiring New
Duties
Sec. 59.21 To a foreign aid general appropriation bill, an amendment
prohibiting the use of international narcotics control funds
contained therein for the eradication of marihuana through the use
of paraquat unless used with another substance which effectively
warns potential users of the marihuana that
[[Page 6213]]
paraquat has been used on it, was ruled out as legislation
requiring new duties and determinations of the executive branch
(where an authorization bill requiring similar findings had not yet
been signed into law).
The ruling of the Chair on Aug. 4, 1978,(7) was that,
while a limitation on the use of funds in a general appropriation bill
does not constitute a violation of Rule XXI clause 2 if it merely
restates identical language in existing law, the legislation in
question must have been signed into law. The proceedings are discussed
in Sec. 23.24, supra.
---------------------------------------------------------------------------
7. 124 Cong. Rec. 24436, 24437, 95th Cong. 2d Sess.
---------------------------------------------------------------------------
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. 60. District of Columbia
Limiting Duties of Teachers, Not Funds
Sec. 60.1 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.
On Apr. 2, 1937,(8) the Committee of the Whole was
considering provisions of H.R. 5996, relating to appropriations for
personal services of teachers.
---------------------------------------------------------------------------
8. 81 Cong. Rec. 3106, 3107, 75th Cong. 1st Sess.
---------------------------------------------------------------------------
For personal services of teachers and librarians in accordance
with the act approved June 4, 1924 (43 Stat., pp. 367-375) . . .
$7,157,820: Provided, That as teacher vacancies occur during the
fiscal year 1938 in grades 1 to 4, inclusive, of the elementary
schools, such vacancies may be filled by the assignment of teachers
now employed in kindergartens . . . : Provided further, That
teachers shall not perform any clerical work except that which is
necessary or incidental to their regular classroom teaching
assignments. . . .
Mr. [Jack] Nichols [of Oklahoma]: Mr. Chairman, I make a point
of order against the language contained on page 25, beginning in
line 4, as follows--
That teachers shall not perform any clerical work except
that which is necessary or incidental to their regular
classroom teaching assignments--
for the reason that it is legislation and modifies existing law. .
. .
The Chairman: (9) Patently this is legislation on a
general appropriation bill, and there is no saving or retrenchment
shown. Therefore, it being legislation, the Chair sustains the
point of order.
---------------------------------------------------------------------------
9. Jere Cooper (Tenn.).
---------------------------------------------------------------------------
[[Page 6214]]
Directing Water Supply Treatment in District of Columbia
Sec. 60.2 An amendment to an appropriation bill providing that the
Commissioners of the District of Columbia shall provide for
treating the water supply of the District of Columbia with a
fluoride for dental protection was conceded to be legislation on an
appropriation bill and held not in order.
On June 7, 1951,(10) during consideration in the
Committee of the Whole of the District of Columbia appropriation bill
(H.R. 4329), a point of order was raised against the following
amendment:
---------------------------------------------------------------------------
10. 97 Cong. Rec. 6271, 82d Cong. 1st Sess.
---------------------------------------------------------------------------
Mr. [Arthur L.] Miller of Nebraska: Mr. Chairman, I offer an
amendment.
The Clerk read as follows:
Amendment offered by Mr. Miller of Nebraska: Page 17, line
12, after the period, insert ``Provided further, That the Board
of Commissioners shall provide for treating the water supply of
the District of Columbia with a flouride or chemical compound
to the extent that it will provide dental protection for the
people of the District of Columbia.''
Mr. [Joe B.] Bates of Kentucky: Mr. Chairman, I make the point
of order against the amendment on the ground that it is legislation
on an appropriation bill. . . .
Mr. Chairman, I insist on my point of order.
Mr. Miller of Nebraska: I concede the point of order, Mr.
Chairman.
The Chairman: (11) The gentleman from Nebraska
concedes the point of order, and the Chair sustains the point of
order.
---------------------------------------------------------------------------
11. Charles M. Price (Ill.).
---------------------------------------------------------------------------
Emergency Authority Conferred on Federal Official
Sec. 60.3 An amendment in the form of a limitation providing that no
part of an appropriation be used for the purchase or sale of real
estate or for establishing new offices outside the District of
Columbia, except that in an emergency, when Congress is not in
session, approval may be given therefor by the Director of the
Budget, was conceded to be legislation and held not in order.
On Apr. 14, 1949,(12) During consideration in the
Committee of the Whole of the independent offices appropriation bill
(H.R. 4177), a point of order was raised against the following
amendment:
---------------------------------------------------------------------------
12. 95 Cong. Rec. 4657, 81st Cong. 1st Sess.
---------------------------------------------------------------------------
Mr. [Francis H.] Case of South Dakota: Mr. Chairman, I offer an
amendment in behalf of the committee.
The Clerk read as follows:
[[Page 6215]]
Amendment offered by Mr. Case of South Dakota: On page 63,
line 3, insert a new section in lieu thereof, as follows:
``Sec. 109. No part of any appropriations made available by
the provisions of this title shall be used for the purchase or
sale of real estate or for the purpose of establishing new
offices outside the District of Columbia: Provided, That this
limitation shall not apply to programs which have been approved
by the Congress and appropriations made therefor: Provided
further, That in the event of an emergency, when the Congress
is not in session, approval may be given by the Director of the
Bureau of the Budget, within the limits of available funds.''
Mr. [John W.] McCormack [of Massachusetts]: Mr. Chairman, a
point of order. I make the point of order, Mr. Chairman, that that
is legislation on an appropriation bill, the latter part of the
amendment giving additional power and responsibility to the
Director of the Budget.
The Chairman: (13) Does the gentleman from South
Dakota desire to be heard on the point of order?
---------------------------------------------------------------------------
13. Francis E. Walter (Pa.).
---------------------------------------------------------------------------
Mr. Case of South Dakota: Mr. Chairman, I concede the point of
order.
The Chairman: The Chair sustains the point of order.
Authorizing Travel
Sec. 60.4 Language in an appropriation bill providing that, ``when
specifically authorized by the Commissioners this appropriation may
be used for visiting any ward of the Department of Public Welfare
placed outside of the District of Columbia and the States of
Virginia and Maryland'' was conceded and held to require additional
duties and not to be in order.
On Apr. 8, 1957,(14) during consideration in the
Committee of the Whole of the District of Columbia appropriation bill
(H.R. 6500), a point of order was raised against the following
provision:
---------------------------------------------------------------------------
14. 103 Cong. Rec. 5293, 85th Cong. 1st Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
Public Welfare
Department of Public Welfare, including relief and
rehabilitation of indigent residents, maintenance pending
transportation of indigent persons, burial of indigent
residents of the District of Columbia, temporary care of
children while being transferred from place to place . . . and
care of boys committed to the National Training School for Boys
by the courts of the District of Columbia under a contract to
be made by the Commissioners or their designated agent with the
Attorney General at a rate of not to exceed the actual cost for
each boy committed, $12,450,000: Provided, That when
specifically authorized by the Commissioners this appropriation
may be used for visiting any ward of the Department of Public
Welfare placed outside of the District of Columbia and the
States of Virginia and Maryland. . . .
Mr. [Clare E.] Hoffman [of Michigan]: Mr. Chairman, I make a
point of order.
[[Page 6216]]
The Chairman: (15) The gentleman will state it.
---------------------------------------------------------------------------
15. Charles M. Price (Ill.).
---------------------------------------------------------------------------
Mr. Hoffman: My point of order is with reference to the
language on page 16, line 9, beginning with the word ``Provided''
down to and including the word ``Maryland'' on line 13. That is
legislation on an appropriation bill in that it requires additional
duties of the Commissioners and also is unlimited as to amount. It
may be used in visiting any ward of the Department of Public
Welfare anywhere in the United States. The language says outside
the District of Columbia and the States of Virginia and Maryland.
That would permit them to travel anywhere.
The Chairman: Does the gentleman from Michigan (Mr. Rabaut)
desire to be heard on the point of order?
Mr. [Louis C.] Rabaut: Mr. Chairman, this language has been
carried in the bill for probably 4 years. The language itself
indicates its purpose. If the gentleman insists on his point of
order, I will have to concede the point of order.
Mr. Hoffman: Mr. Chairman, of course I insist on the point of
order; otherwise I would not have made it.
Mr. Rabaut: Mr. Chairman, I concede the point of order.
The Chairman: The point of order is sustained.
Restriction on Obligational Authority
Sec. 60.5 Language in a supplemental appropriation bill providing for
``such sums as may be necessary'' for public buildings projects in
the District of Columbia and further specifying that ``no
obligation shall be incurred for any . . . project . . . which will
(1) result in a deficit in the general fund of the District of
Columbia, or (2) exceed the estimated cost as submitted therein to
the Congress'' was held to be legislation and not in order.
On June 23, 1960,(16) During consideration in the
Committee of the Whole of a supplemental appropriation bill (H.R.
12740), a point of order was raised against the following provision:
---------------------------------------------------------------------------
16. 106 Cong. Rec. 14086, 86th Cong. 2d Sess.
---------------------------------------------------------------------------
Capital Outlay, Public Building Construction and Department of
Sanitary Engineering
For an additional amount for ``Capital outlay, Public Building
Construction'' and ``Capital outlay, Department of Sanitary
Engineering'', for construction projects as authorized by the Act
of April 22, 1904 (33 Stat. 244), the Act of May 18, 1954 (68 Stat.
105), and the Act of June 6, 1958 (72 Stat. 183) and as submitted
to the Congress in House Document Numbered 403 of June 1, 1960,
such sums as may be necessary, but no obligation shall be incurred
for any item or project proposed in said document which will (1)
result in a deficit in the general fund of the District of
Columbia, or (2) exceed the esti
[[Page 6217]]
mated cost as submitted therein to the Congress.
Mr. [H. R.] Gross [of Iowa]: Mr. Chairman, I make a point of
order against the language appearing on page 5, beginning with line
3 and running through line 16. I refer especially to the following
language:
But no obligation shall be incurred for any item or project
proposed in said document which will (1) result in a deficit in
the general fund of the District of Columbia, or (2) exceed the
estimated cost as submitted therein to the Congress.
Mr. Chairman, I make the point of order that this is
legislation on an appropriation bill and is subject to other
considerations.
Mr. [Albert] Thomas [of Texas]: Mr. Chairman, it certainly was
the intention of the committee, and we think the language is clear,
to put a straight limitation on the use of these funds.
The Chairman: (17) The Chair is prepared to rule.
---------------------------------------------------------------------------
17. Aime J. Forand (R.I.).
---------------------------------------------------------------------------
The gentleman from Iowa makes a point of order against certain
language on page 5. The Chair has had an opportunity to study this
language, and finds that there is no question but what this is
legislation on an appropriation bill. Therefore the Chair sustains
the point of order.
Imposing New Employment Quotas
Sec. 60.6 An amendment providing that no funds appropriated in the act
shall be available for the appointment of persons to non-civil-
service positions in excess of certain quotas applicable by law
only to appointments to classified positions was held to be
legislation and not a limitation.
On Mar. 28, 1940,(18) During consideration in the
Committee of the Whole of a general appropriation bill [H.R. 9007), a
point of order was raised against the following provision:
---------------------------------------------------------------------------
18. 86 Cong. Rec. 3632, 76th Cong. 3d Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
Sec. 702. No funds appropriated in this act shall be
available for the appointment of persons to non-civil-service
positions in the departmental service in the District of
Columbia unless such appointment is not in excess of the quota
of apportionment, established in the manner provided by the
civil-service laws for appointment in the classified civil
service, for positions (compensated by the funds in the
respective titles of this act) of a non-civil-service
character: Provided, That this section shall not apply to any
position, the appointment of which is made by the President.
Mr. [Schuyler Otis] Bland [of Virginia]: Mr. Chairman, I make a
point of order against the section on the ground that it is
legislation on an appropriation bill.
The Chairman: (19) Does the gentleman from Georgia
desire to be heard on the point of order?
---------------------------------------------------------------------------
19. Frank H. Buck (Calif.).
---------------------------------------------------------------------------
Mr. [Malcolm C.] Tarver [of Georgia]: Mr. Chairman, I was
aware, of
[[Page 6218]]
course, that a point of order would be made. I am of the opinion
that the language in the section is clearly a limitation on the
appropriation and comes within the spirit of the Holman rule. I am
advised, however, that the Parliamentarian maintains other views,
and for this reason I shall not resist the sustaining of the point
of order although I desire to offer amendatory language to take the
place of the stricken section.
The Chairman: The Chair is ready to rule. In the opinion of the
Chair, the language in lines 14 and 15, ``unless such appointment
is not in excess of the quota of apportionment,'' and so forth, is
clearly subject to a point of order.
The Chair sustains the point of order.
Authorizing Employment at Rates to be Set by Corporation Counsel
Sec. 60.7 A paragraph in a general appropriation bill for the District
of Columbia permitting the use of funds in the bill by the Office
of the Corporation Counsel to retain professional experts at rates
fixed by the commissioner was conceded to be legislation and was
ruled out in violation of Rule XXI clause 2.
On June 18, 1973,(20) during consideration in the
Committee of the Whole of the District of Columbia appropriation bill
(H.R. 8685), the following point of order was raised:
---------------------------------------------------------------------------
20. 119 Cong. Rec. 20068, 93d Cong. 1st Sess.
---------------------------------------------------------------------------
Mr. [H. R.] Gross [of Iowa]: Mr. Chairman, I make a point of
order against the language to be found on page 11, lines 5 through
10, as not being a limitation upon an appropriation bill, and not
authorized.
The portion of the bill to which the point of order relates is
as follows:
Sec. 5. Appropriations in this Act shall be available for
services as authorized by 5 U.S.C. 3109 and shall be available
to the Office of the Corporation Counsel to retain the services
of consultants including physicians, diagnosticians,
therapists, engineers, and meteorologists at rates to be fixed
by the Commissioner.
The Chairman: (1) Does the gentleman from Kentucky
desire to be heard on the point of order raised by the gentleman
from Iowa (Mr. Gross)
---------------------------------------------------------------------------
1. Dante B. Fascell (Fla.).
---------------------------------------------------------------------------
Mr. [William H.] Natcher [of Kentucky]: Mr. Chairman, I should
like to say to the members of the Committee that this is a new
provision that is carried in the bill at this time. This was sent
up from downtown. We at this time, Mr. Chairman, concede the point
of order.
The Chairman: The point of order is sustained.
[[Page 6219]]
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.
---------------------------------------------------------------------------
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. 62. Interior
[[Page 6239]]
Appropriation Available Pursuant to Regulations by Secretary
Sec. 62.1 A paragraph in a general appropriation bill providing that
appropriations in the bill available for travel expenses shall be
available for expenses of attendance of officers and employees at
meetings or conventions ``under regulations prescribed by the
Secretary,'' was conceded to be legislation and held not in order.
On May 2, 1951,(15) during consideration in the
Committee of the Whole of the Interior Department appropriation bill
(H.R. 3790), a point of order was raised against the following
provision:
---------------------------------------------------------------------------
15. 97 Cong. Rec. 4738, 82d Cong. 1st Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
Sec. 104. Appropriations in this act available for travel
expenses shall be available, under regulations prescribed by
the Secretary, for expenses of attendance of officers and
employees at meetings or conventions of members of societies or
associations concerned with the work of the bureau or office
for which the appropriation concerned is made.
Mr. [Kenneth B.] Keating [of New York]: Mr. Chairman, I make
the point of order against section 104 that it is legislation on an
appropriation bill and involves additional duties.
The Chairman: (16) Does the Chair understand that
the gentleman from New York raises objection to the paragraph
because of the use of the language ``under regulations prescribed
by the Secretary'' in lines 18 and 19?
---------------------------------------------------------------------------
16. Wilbur D. Mills (Ark.).
---------------------------------------------------------------------------
Mr. Keating: I do object to those words, and feel that that
makes the section out of order as it now stands, but I would still
press the point of order even with those words eliminated.
Mr. [Henry M.] Jackson of Washington: I wonder if the gentleman
would accept the section if it remains as is except for the
elimination of the words ``under regulations prescribed by the
Secretary.''
Mr. Keating: I feel that even with the elimination of those
words it would still involve legislation on an appropriation bill,
for exactly the same reasons for which the Chair has held section
102 subject to a point of order.
Mr. Jackson of Washington: Mr. Chairman, I concede the point of
order.
The Chairman: The point of order is sustained.
Available if Determined to be ``Advantageous''
Sec. 62.2 Language in an appropriation bill making available
appropriations for the installation of telephones in government-
owned residences occupied by employees of the National Park
Service, provided the Secretary of the Interior deter
[[Page 6240]]
mines that such services are advantageous in the administration of
the park areas, was conceded and held to impose new duties on the
Secretary and therefore to be legislation.
On Mar. 16, 1939,(17) during consideration in the
Committee of the Whole of the Interior Department appropriation bill
(H.R. 4852), a point of order was raised against the following
provision:
---------------------------------------------------------------------------
17. 84 Cong. Rec. 2893, 76th Cong. 1st Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
Appropriations herein made for the National Park Service
shall be available for the installation and operation of
telephones in Government-owned residences, apartments, or
quarters occupied by employees of the National Park Service,
provided the Secretary determines the provision of such
services are advantageous in the administration of these areas.
Mr. [John] Taber [of New York]: Mr. Chairman, I make a point of
order against the paragraph on the ground it is not authorized by
law and also because it imposes additional duties on the Secretary
in the putting in of telephones in private houses.
Mr. [Jed] Johnson of Oklahoma: Mr. Chairman, I concede the
point of order and offer an amendment.
The Chairman: (18) The point of order is sustained.
---------------------------------------------------------------------------
18. Frank H. Buck (Calif.).
---------------------------------------------------------------------------
Determination of Electric Power Needs
Sec. 62.3 An amendment to an appropriation bill providing that no funds
therein shall be used to operate transmission lines to carry power
developed at Fort Randall Dam across the boundaries of South
Dakota, unless such power exceeds the requests for power in that
state, was held to be legislation on an appropriation bill,
imposing new duties on officials, and not in order.
On Mar. 30, 1949,(19) during consideration in the
Committee of the Whole of the Interior Department appropriation bill
(H.R. 3838), a point of order was raised against the following
amendment:
---------------------------------------------------------------------------
19. 95 Cong. Rec. 3520, 81st Cong. 1st Sess.
---------------------------------------------------------------------------
Mr. [Francis H.] Case of South Dakota: Mr. Chairman, I offer my
amendment at this time and ask that it be read.
The Clerk read as follows:
Amendment offered by Mr. Case of South Dakota: On page 47,
line 7, strike out the period, insert a colon and the
following: ``Provided further, That no part of these funds
shall be used to build, operate, or administer transmission
lines to carry power developed at Fort Randall Dam across the
boundaries of the State of South Dakota in which the power is
produced, unless the power so produced
[[Page 6241]]
shall exceed the requests for power in that State.''. . .
Mr. [Henry M.] Jackson of Washington: Mr. Chairman, I make the
point of order that this particular amendment is legislation on an
appropriation bill and imposes additional duties on the Bureau of
Reclamation. . . .
The Chairman: (20) The Chair is prepared to rule. .
. .
---------------------------------------------------------------------------
20. Jere Cooper (Tenn.).
---------------------------------------------------------------------------
The Chair has examined the amendment with some degree of care
and invites attention especially to the language appearing wherein
it is stated, ``unless the power so produced shall exceed the
requests for power in that State.''
The insertion of that language in the amendment would impose
additional duties under the amendment, therefore would be
legislation on an appropriation bill.
The Chair sustains the point of order.
Requiring Approval by State Officials of Federal Project
Sec. 62.4 An amendment to the Interior Department 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,(1) during consideration in the
Committee of the Whole of the Interior Department appropriation bill
(H.R. 3838), a point of order was raised against the following
amendment:
---------------------------------------------------------------------------
1. 95 Cong. Rec. 3530, 3531, 81st Cong. 1st Sess. For discussion of
the effect of duties imposed on state or local officials
generally, see Sec. 53, supra.
---------------------------------------------------------------------------
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: (2) Does the gentleman from Iowa
desire to be heard on the point of order?
---------------------------------------------------------------------------
2. 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
[[Page 6242]]
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 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: This precedent best represents current
rulings on issues such as those raised here. But see the ``Note on
Contrary Rulings,'' which follows Sec. 53.6, supra, especially the
ruling of Mar. 29, 1966, wherein prior approval by state officials was
held merely descriptive of qualifications of recipients and not to
impose new duties on state officials; and the ruling of June 23, 1971.
Granting Discretionary Authority
Sec. 62.5 Language in a general appropriation bill providing that the
Secretary of the Interior may utilize appropriations for
encouraging self-support among Indians through several stated
means, and requiring the exercise of discretion by the Secretary
was held to be legislation on an appropriation bill and not in
order.
On Mar. 1, 1938,(3) the Committee of the Whole was
considering H.R. 9621, an Interior Department appropriation bill. The
following proceedings took place:
---------------------------------------------------------------------------
3. 83 Cong. Rec. 2637, 2638, 75th Cong. 3d Sess.
---------------------------------------------------------------------------
For the purpose of encouraging industry and self-support among
the Indians and to aid them in the culture of fruits, grains, and
other crops, $240,000 . . . Provided, That the expenditures for the
purposes above set forth shall be under conditions to be prescribed
by the Secretary of the Interior for repayment to the United States
on or before June 30, 1944, except in the case of loans on
irrigable lands for permanent improvement of said lands, in which
the period for repayment may run for not exceeding 20 years, in the
discretion of the Secretary of the Interior . . . Provided further,
That the Secretary of the Interior is hereby authorized, in his
discretion and under
[[Page 6243]]
such rules and regulations as he may prescribe, to make advances
from this appropriation to old, disabled, or indigent Indian
allottees, for their support, to remain a charge and lien against
their land until paid: Provided further, That not to exceed $15,000
may be advanced to worthy Indian youths to enable them to take
educational courses . . . and advances so made shall be reimbursed
in not to exceed 8 years, under such rules and regulations as the
Secretary of the Interior may prescribe. . . .
Mr. [John] Taber [of New York]: Mr. Chairman, I make the point
of order against the paragraph that it is legislation on an
appropriation bill and requires additional duties of the Secretary
of the Interior. I call the attention of the Chair to the language
beginning at the end of line 18 and running through the entire
proviso; to the proviso beginning in line 5 on page 29; to the
proviso beginning on page 29, line 10; and to the proviso beginning
on page 29, line 17. Every one of these is subject to a point of
order, because each of them requires additional duties of the
Secretary of the Interior and is legislation on an appropriation
bill.
I make the point of order against the entire paragraph. . . .
The Chairman: (4) Does the gentleman from Oklahoma
desire to be heard on the point of order?
---------------------------------------------------------------------------
4. Marvin Jones (Tex.).
---------------------------------------------------------------------------
Mr. [Jed] Johnson of Oklahoma: I do not care to be heard on it,
Mr. Chairman.
The Chairman: The Chair is ready to rule.
It seems to the Chair the proviso beginning on page 29, line 5;
the second proviso, beginning on line 10; and the third proviso,
beginning on line 14, are all subject to a point of order, being
legislation on an appropriation bill. The point of order is made to
the entire paragraph, and, with these items included, the entire
paragraph is subject to the point of order.
The point of order is therefore sustained.
Sec. 62.6 An appropriation for the giving of educational lectures in
national parks to be designated by the Secretary of the Interior in
his discretion is legislation.
On May 17, 1937,(5) during consideration in the
Committee of the Whole of the Interior Department appropriation bill
(H.R. 6958), a point of order was raised against the following
provision:
---------------------------------------------------------------------------
5. 81 Cong. Rec. 4713, 4714, 75th Cong. 1st Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
Appropriations herein made for the national parks, national
monuments, and other reservations under the jurisdiction of the
National Park Service shall be available for the giving of
educational lectures therein and for the services of field
employees in cooperation with such nonprofit scientific and
historical societies engaged in educational work in the various
parks and monuments as the Secretary, in his discretion, may
designate.
Mr. [John] Taber [of New York]: Mr. Chairman, I make a point of
order against the paragraph on page 109, lines 18 to 25, that it is
legislation on an appropriation bill not authorized by law.
[[Page 6244]]
The Chairman: (6) Does the gentleman from Oklahoma
desire to be heard on the point of order?
---------------------------------------------------------------------------
6. Jere Cooper (Tenn.).
---------------------------------------------------------------------------
Mr. [Jed] Johnson of Oklahoma: I do not care to be heard.
The Chairman: The Chair sustains the point of order.
Sec. 62.7 An appropriation for the expenses of organizing Indian
chartered corporations or other tribal organizations was held to be
authorized by law; but a provision in the same paragraph that ``in
the discretion of the Secretary of the Interior, not to exceed $3
per diem in lieu of subsistence may be allowed'' to Indians
traveling on organization work was ruled out as legislation,
causing the entire paragraph to be stricken.
On May 14, 1937,(7) the Committee of the Whole was
considering H.R. 6958, an Interior Department appropriation bill. At
one point the Clerk read as follows, and proceedings ensued as
indicated below:
---------------------------------------------------------------------------
7. 81 Cong. Rec. 4592, 75th Cong. 1st Sess.
---------------------------------------------------------------------------
For expenses of organizing Indian chartered corporations, or
other tribal organizations, in accordance with the provisions of
the act of June 18, 1934 (48 Stat., p. 986), including personal
services, purchase of equipment and supplies, not to exceed $3,000
for printing and binding, and other necessary expenses, $100,000 of
which not to exceed $25,000 may be used for personal services in
the District of Columbia: Provided, That in the discretion of the
Secretary of the Interior, not to exceed $3 per diem in lieu of
subsistence may be allowed to Indians actually traveling away from
their place of residence when assisting in organization work.
Mr. [John] Taber [of New York]: Mr. Chairman, I make the point
of order against the paragraph upon the ground that it contains
legislation and changes existing law, that the provision appearing
on page 16, from lines 16 to 20, is legislation not authorized by
law, and I make the point of order against the entire paragraph. .
. .
The Chairman: (8) The Chair is ready to rule. The
Chair thinks that the first part of the paragraph down to the
proviso in line 16 on page 16 is authorized under section 9 of the
statute approved June 18, 1934, and, therefore, is in order. The
Chair thinks, however, so far as the proviso, line 16 down to the
word ``work'' on line 20, is concerned, that it does not appear on
the face of this proviso that it necessarily is a saving, and
therefore does not come within the Holman rule and appears to be
legislation on an appropriation bill. The Chair, therefore,
sustains the point of order as to the proviso.
---------------------------------------------------------------------------
8. Lister Hill (Ala.).
---------------------------------------------------------------------------
Mr. Taber: Mr. Chairman, I make the point of order against the
whole paragraph.
The Chairman: If the gentleman from New York insists on his
point of
[[Page 6245]]
order to the entire paragraph, the entire paragraph will go out,
and the Chair so rules.
Bestowing New Responsibilities on Secretary
Sec. 62.8 Language in the Interior Department appropriation bill
reserving such part of the storage capacity of the Cascade
Reservoir for other projects ``as shall be determined by the
Secretary of the Interior'' was conceded to be legislation and held
not in order.
On May 13, 1941,(9) during consideration in the
Committee of the Whole of the Interior Department appropriation bill
(H.R. 4590), the following proceedings took place:
---------------------------------------------------------------------------
9. 87 Cong. Rec. 4009, 77th Cong. 1st Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
Boise project, Idaho, Payette division, $500,000: Provided,
That such part of the storage capacity of the Cascade
Reservoir, and the costs thereof, shall be reserved for other
irrigation or power developments in and adjacent to the Boise
project, as shall be determined by the Secretary of the
Interior.
Mr. [Robert F.] Rich [of Pennsylvania]: Mr. Chairman, I make a
point of order against the language on page 78, beginning in line
15, reading as follows:
Provided, That such part of the storage capacity of the
Cascade Reservoir, and the cost thereof, shall be reserved for
other irrigation or power development in and adjacent to the
Boise project, as shall be determined by the Secretary of the
Interior--
On the ground that this is legislation on an appropriation
bill.
Mr. [Charles H.] Leavy [of Washington]: Mr. Chairman, does the
gentleman make the point of order just against the proviso?
Mr. Rich: Yes.
Mr. Leavy: Mr. Chairman, we concede the point of order.
The Chairman: (10) The point of order is sustained.
---------------------------------------------------------------------------
10. Jere Cooper (Tenn.).
---------------------------------------------------------------------------
Directions to Secretary; New Reporting Requirement
Sec. 62.9 A provision in an appropriation bill that the ``Secretary of
the Interior shall include in his annual report a full statement of
all expenditures made under authority of this paragraph'' was held
to be legislation and not in order on an appropriation bill.
On Mar. 14, 1939,(11) during consideration in the
Committee of the Whole of the Interior Department appropriation bill
(H.R. 4852), a point of order was raised against the following
provision:
---------------------------------------------------------------------------
11. 84 Cong. Rec. 2733, 76th Cong. 1st Sess.
---------------------------------------------------------------------------
For investigating official matter under the control of the
Department of
[[Page 6246]]
the Interior; for protecting timber on the public lands, and for
the more efficient execution of the law and rules relating to the
cutting thereof . . . and for traveling and other expenses of
persons employed hereunder, $548,000. . . . The Secretary of the
Interior shall include in his annual report a full statement of all
expenditures made under authority of this paragraph.
Mr. [John] Taber [of New York]: Mr. Chairman, a point of order.
The Chairman: (12) The gentleman will state it.
---------------------------------------------------------------------------
12. Frank H. Buck (Calif.).
---------------------------------------------------------------------------
Mr. Taber: Mr. Chairman, I make a point of order against the
paragraph that it is not authorized by law. There is no authority
in the law, as I understand it, for the maintenance of this
division. It went out on a point of order last year, and, as I
remember the situation, there has been no change in the law since.
I believe that is all that needs to be said on the subject at this
time. . . .
The Chairman: The Chair is ready to rule.
The Chair believes the last sentence in the paragraph as it now
stands, reading, ``The Secretary of the Interior shall include in
his annual report a full statement of all expenditures made under
authority of this paragraph,'' is clearly legislation and is
subject to a point of order. If the gentleman from New York insists
upon his point of order going against the entire section, the Chair
will necessarily be forced to sustain it. The Chair does sustain
the point of order.
Authorizing Advances Under Rules to be Promulgated
Sec. 62.10 Language in an appropriation bill appropriating money to be
advanced for certain purposes coupled with a direction that such
advances shall be reimbursable during a fixed period under rules
and regulations prescribed by an executive officer was held to be
legislation and not in order.
On May 14, 1937,(13) the Committee of the Whole was
considering H.R. 6958, an Interior Department appropriation bill. At
one point the Clerk read as follows, and proceedings ensued as
indicated below:
---------------------------------------------------------------------------
13. 81 Cong. Rec. 4598, 4599, 75th Cong. 1st Sess.
---------------------------------------------------------------------------
For the purpose of encouraging industry and self-support among
the Indians and to aid them in the culture of fruit, grains, and
other crops, $165,000 . . . Provided further, That not to exceed
$15,000 may be advanced to worthy Indian youths to enable them to
take educational courses, including courses in nursing home
economics, forestry, and other industrial subjects in colleges,
universities, or other institutions, and advances so made shall be
reimbursed in not to exceed 8 years, under such rules and
regulations as the Secretary of the Interior may prescribe.
Mr. [John] Taber [of New York]: Mr. Chairman, I make a point of
order against the paragraph beginning on page 26, line 4. The point
of order is that this is legislation on an appropriation bill and
it imposes discretionary
[[Page 6247]]
duties upon the Secretary of the Interior. The language at the
bottom of the bill, beginning with ``Provided further'', line 22,
and the last proviso are entirely the same. They provide that the
Secretary of the Interior shall make rules and regulations and
there is no question but what it imposes additional duties upon the
Secretary of the Interior all the way through.
In lines 17 and 18 the terms of repayment are made subject to
the discretion of the Secretary of the Interior and in lines 9 and
10 it is subject to that same discretion. This is all on page 26.
The whole paragraph is subject to discretion and imposes duties
upon the Secretary. . . .
The Chairman: (14) The Chair would like to inquire .
. . of the gentleman with reference to the language appearing in
lines 7 and 8, page 27, reading as follows:
---------------------------------------------------------------------------
14. Jere Cooper (Tenn.).
---------------------------------------------------------------------------
And advances so made shall be reimbursed in not to exceed 8
years under such rules and regulations as the Secretary of the
Interior may prescribe.
Will the gentleman advise the Chair as to any provision of
existing law upon which this language is based?
Mr. [Jed] Johnson of Oklahoma: Mr. Chairman, this is the exact
language that has been used for several years and the gentleman
from Oklahoma knows of no specific basis of law for it.
The Chairman: The Chair is ready to rule.
The gentleman from New York makes a point of order against the
entire paragraph beginning in line 4, page 26, extending down to
and including line 9, page 27. The gentleman from New York [Mr.
Taber] in making his point of order invited attention to certain
language appearing in lines 10 and 11, page 26, with reference to
the discretion of the Secretary of the Interior.
The Chair has examined the act commonly referred to and known
as the Snyder Act and invites attention to section 13 of that act,
in which the following appears:
Expenditures of appropriations by Bureau of Indian Affairs:
The Bureau of Indian Affairs, under the supervision of the
Secretary of the Interior, shall direct, supervise, and expend
such moneys as Congress may from time to time appropriate for
the benefit, care, and assistance of the Indians throughout the
United States for the following purposes: General support and
civilization, including education; for industrial assistance
and advancement and general administration of Indian problems.
Further, for general and incidental expenses in connection with
the administration of Indian affairs.
It is the opinion of the Chair that the act to which attention
has been invited confers upon the Secretary of the Interior rather
broad discretionary authority. The Chair is of opinion that the
language to which the gentleman invited attention is not subject to
a point of order, but that the language to which the Chair invited
the attention of the gentleman from Oklahoma with reference to the
provisos does constitute legislation on an appropriation bill not
authorized by the rules of the House. It naturally follows that as
the point of order has to be sustained as to these two provisos, it
has to be sustained as to the entire paragraph. The
[[Page 6248]]
Chair therefore sustains the point of order made by the gentleman
from New York.
Historic Preservation; Limiting Legal Authority, Not Funds
Sec. 62.11 Language in an appropriation bill providing that ``hereafter
the authority of the Secretary of the Interior . . . to acquire by
gift on behalf of the United States any historic site, building,
object, and antiquity of national significance, shall not be
effective until an appropriation has been made for the operation
and maintenance thereof subsequently to such proposed
acquisition,'' was conceded and held to be a change in law and
legislation on an appropriation bill.
On Mar. 20, 1939,(15) during consideration in the
Committee of the Whole of the Interior Department appropriation bill
(H.R. 4852), a point of order was raised against the following
provision:
---------------------------------------------------------------------------
15. 84 Cong. Rec. 3000, 76th Cong. 1st Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
Historic sites and buildings: For carrying out the
provisions of the act entitled ``An act to provide for the
preservation of historic American sites, buildings, objects,
and antiquities of national significance, and for other
purposes,'' approved August 21, 1935 (49 Stat. 666), including
personal services in the District of Columbia, $24,000:
Provided, That hereafter the authority of the Secretary of the
Interior contained in such act, to acquire by gift on behalf of
the United States any historic site, building, object, and
antiquity of national significance, shall not be effective
until an appropriation has been made for the operation and
maintenance thereof subsequently to such proposed acquisition.
Mr. [Schuyler Otis] Bland [of Virginia]: Mr. Chairman, I desire
to make a point of order against the proviso, commencing with the
word ``Provided,'' line 17, page 119, down to the end of the
paragraph, in that it is legislation on an appropriation bill.
According to the report, it expressly changes the language of the
act.
The Chairman: (16) Does the gentleman from Oklahoma
[Mr. Johnson] desire to be heard?
---------------------------------------------------------------------------
16. Frank H. Buck (Calif.).
---------------------------------------------------------------------------
Mr. [Jed] Johnson: Mr. Chairman, I concede the point of order.
The Chairman: The point of order is sustained.
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. 63. Other Agencies and Departments
``No Funds Unless or Until Approved'' by
Sec. 63.1 Language in an appropriation bill providing funds for the
Tennessee Valley Authority, stating that no part of the funds shall
be used
[[Page 6249]]
``unless and until'' approved by the Director of the Bureau of the
Budget was conceded to be legislation and held not in order.
On May 22, 1956,(17) during consideration in the
Committee of the Whole of a general appropriation bill (H.R. 11319),
the following point of order was raised:
---------------------------------------------------------------------------
17. 102 Cong. Rec. 8725, 84th Cong. 2d Sess.
---------------------------------------------------------------------------
Mr. [Louis C.] Rabaut [of Michigan]: Mr. Chairman, I make a
point of order against certain language in the Tennessee Valley
Authority paragraph as follows: . . .
. . . Lines 13 to 22, the proviso reading ``That no part of
funds available for expenditure by this agency shall be used,
directly or indirectly, to acquire a building for use as an
administrative office of the Tennessee Valley Authority unless and
until the Director of the Bureau of the Budget, following a study
of the advisability of the proposed acquisition, shall advise the
Committees on Appropriations of the Senate and the House of
Representatives and the Tennessee Valley Authority that the
acquisition has his approval. . . .''
Mr. [Clarence] Cannon [of Missouri]: Mr. Chairman, the language
read by the gentleman is unquestionably legislation on an
appropriation bill and I therefore concede the point of order.
The Chairman: (18) . . . It is clearly legislation
on an appropriation bill and the point of order is sustained.
---------------------------------------------------------------------------
18. Jere Cooper (Tenn.).
---------------------------------------------------------------------------
Sec. 63.2 To a provision in an appropriation bill restricting the use
of certain appropriations therein, an amendment limiting such use
``unless the Director of the Bureau of the Budget specifically
approves'' projects to be constructed and submits explanatory
reports to designated committees of Congress was conceded and held
to impose additional duties upon an official.
On Mar. 20, 1952,(19) during consideration in the
Committee of the Whole of the independent offices appropriation bill
(H.R. 7072), a point of order was raised against an amendment to the
following paragraph:
---------------------------------------------------------------------------
19. 98 Cong. Rec. 2613-15, 82d Cong. 2d Sess.
---------------------------------------------------------------------------
Plant and equipment: For expenses of the Commission in
connection with the construction of plant and the acquisition of
equipment and other expenses incidental thereto necessary in
carrying out the purposes of the Atomic Energy Act of 1946,
including purchase of land and interests in land, $371,741,000:
Provided, That no part of this appropriation shall be used--
(A) to start any new construction project for which an estimate
was not included in the budget for the current fiscal year;
(B) to start any new construction project the currently
estimated cost of
[[Page 6250]]
which exceeds by 35 percent the estimated cost included therefor in
such budget. . . .
Mr. [Henry M.] Jackson of Washington: Mr. Chairman, I offer an
amendment.
The Clerk read as follows:
Amendment offered by Mr. Jackson of Washington: On page 8,
lines 10 and 11, after ``estimated cost of which exceeds,''
strike out ``35 percent of the estimated cost included therefor
in such budget'' and insert ``the estimated cost included
therefor in such budget:
``(C) to continue any community facility construction
project whenever the currently estimated cost thereof exceeds
the estimated cost included therefor in such budget; unless the
Director of the Bureau of the Budget specifically approves the
start of such construction project or its continuation and a
detailed explanation thereof is submitted forthwith by the
Director to the Appropriations Committees of the Senate and the
House of Representatives and the Joint Committee on Atomic
Energy; the limitations contained in this proviso shall not
apply to any construction project the total estimated cost of
which does not exceed $500,000: and, as used herein, the term
`construction project' includes the purchase, alteration, or
improvement of buildings, and the term ``budget'' includes the
detailed justification supporting the budget estimates:
Provided further, That whenever the current estimate to
complete any construction project (except community facilities)
exceeds by 15 percent the estimated cost included therefor in
such budget or the estimated cost of a construction project
covered by clause (A) of the foregoing proviso which has been
approved by the Director, the Commission shall forthwith submit
a detailed explanation thereof to the Director of the Bureau of
the Budget and the Committees on Appropriations of the Senate
and the House of Representatives and the Joint Committee on
Atomic Energy: Provided further, That the two foregoing
provisos shall have no application with respect to technical
and production facilities (1) if the Commission certifies to
the Director of the Bureau of the Budget that immediate
construction or immediate continuation of construction is
necessary to the national defense and security, and (2) if the
Director agrees that such certification is justified.''
Mr. [Albert] Thomas [of Texas]: Mr. Chairman, a point of order.
The Chairman: (20) The gentleman will state it.
---------------------------------------------------------------------------
20. Wilbur D. Mills (Ark.).
---------------------------------------------------------------------------
Mr. Thomas: Mr. Chairman, I make the point of order against the
amendment on the ground that it places extra duties on the Director
of the Bureau of the Budget and that it is legislation on an
appropriation bill. . . .
The Chairman: Does the gentleman from Washington desire to be
heard on the point of order?
Mr. Jackson of Washington: For the sake of time, I will concede
the point of order, Mr. Chairman.
The Chairman: The point of order is sustained.
Requiring Subjective Determinations by Bureau of Public Roads
Sec. 63.3 To a general appropriation bill providing funds for federal
highways, an amendment specifying that no funds ``shall be used for
any
[[Page 6251]]
highway program . . . which requires either the unjustified or
harmful nonconforming use of . . . land'' was held to be
legislative in nature since it imposed additional duties on the
Director of the Bureau of Public Roads.
On Oct. 4, 1966,(1) the Committee of the Whole was
considering H.R. 18119, a State, Justice, Commerce Departments, and
related agencies appropriation bill. The following proceedings took
place:
---------------------------------------------------------------------------
1. 112 Cong. Rec. 24975, 24976, 89th Cong. 2d Sess.
---------------------------------------------------------------------------
Federal-aid Highways (Trust Fund)
For carrying out the provisions of title 23, United States
Code, which are attributable to Federal-aid highways, to remain
available until expended, $3,968,400,000. . . .
Mr. [James C.] Cleveland [of New Hampshire]: Mr. Chairman, I
offer an amendment:
The Clerk read as follows:
Amendment offered by Mr. Cleveland: On page 41, end of line
2, after the period, add the following: ``None of the funds
appropriated in this section shall be used for any highway
program or project which requires either the unjustified or
harmful non-conforming use of any land from a public park,
recreation area, wildlife and waterfowl refuge or historic
site.''
Mr. [John J.] Rooney of New York: Mr. Chairman, I make a point
of order against the amendment offered by the gentleman from New
Hampshire, but will reserve it at this time. . . .
Mr. Chairman, I must insist on my point of order. . . .
This appropriation item entitled ``Federal-Aid highways (trust
funds)'' contains funds for the payment of contract authorizations,
many of which have already been entered into. . .
. . . [I]t would call for additional duties on the part of the
Bureau of Public Roads to determine what is unjustified and what is
harmful.
So, Mr. Chairman, I must insist on my point of order. . . .
The Chairman: (2) The Chair is prepared to rule. The
gentleman from New York raises a point of order to the amendment
offered by the gentleman from New Hampshire on the ground that, in
effect, it is legislation on an appropriation bill, and also it
would impose additional duties on the Department. The gentleman
from New Hampshire opposes the point of order. He argues that the
amendment is in consonance with the precedents of the House.
---------------------------------------------------------------------------
2. Dante B. Fascell (Fla.).
---------------------------------------------------------------------------
The Chair is constrained to find from the facts as related by
the gentleman from New York, the effect of the amendment would not
be a limitation, but would in effect be legislation on an
appropriation bill. The amendment does impose additional duties on
the Department in that a determination would have to be made as to
what is unjustified, harmful, or nonconforming.
In a previous ruling in our precedents, in a matter where there
was only one qualifying word--a deter
[[Page 6252]]
mination of the word ``incapacitated''--the ruling was that this
would impose additional duties.
Therefore, the Chair sustains the point of order.
Denying Funds ``Unless Subject to Audit by Comptroller General''
Sec. 63.4 An amendment to a legislative branch appropriation bill
denying the obligation or expenditure of certain funds contained
therein unless such funds were subject to audit by the Comptroller
General was ruled out of order as legislation where it appeared
that the amendment was intended by its proponents to extend and
strengthen the authority of the Comptroller General under law to
audit legislative accounts.
On June 14, 1978,(3) during consideration of H.R. 12935
(legislative branch appropriations for fiscal 1979), proceedings
occurred as indicated below:
---------------------------------------------------------------------------
3. 124 Cong. Rec. 17650, 17651, 95th Cong. 2d Sess.
---------------------------------------------------------------------------
Mr. [R. Lawrence] Coughlin [of Pennsylvania]: Mr. Chairman, I
offer an amendment, my amendment No. 2.
The Clerk read as follows:
Amendment offered by Mr. Coughlin: On page 6, after line
23, insert the following new section:
Sec. 102. (a) None of the funds appropriated by any
provision described in subsection (b) shall be expended or
obligated for any purpose specified in such provision unless
such funds so expended or obligated are subject to audit by the
Comptroller General of the United States.
(b) For purposes of subsection (a), any provision in Title
I of this Act following the provision relating to
``Compensation of Members'' and preceding the heading ``Joint
Items'' is a provision described in this subsection. . . .
Mr. [George E.] Shipley [of Illinois]: Mr. Chairman, I reserve
a point of order on the amendment. . . .
Mrs. [Margaret M.] Heckler [of Massachusetts]: Mr. Chairman,
the operations of the Comptroller General under this amendment
would continue as under existing circumstances in that site at the
Capitol where the office is presently located. The authority would
provide an audit of Members' accounts and committee accounts. It
would provide that authority to be utilized by the GAO.
Mr. Shipley: Mr. Chairman, if the gentleman will yield further,
does it extend in any way the present audit system that we have now
in the House?
Mr. Coughlin: Mr. Chairman, I yield to the gentlewoman from
Massachusetts.
Mrs. Heckler: Mr. Chairman, it extends the authority that now
exists in law but is not necessarily a change in existing law. It
affirms the authority of the GAO which presently exists in the
House; however, I do not believe that the GAO is able to examine
Members' accounts and this amendment clarifies that authority.
However, it does not
[[Page 6253]]
mandate audits across the board of every Member at any particular
time. . . .
Mr. Shipley: Mr. Chairman, I would like to be heard on the
point of order.
Mr. Chairman, I insist on my point of order.
Mr. Chairman, I object to the amendment and make a point of
order against it on the grounds that it imposes additional duties
on the Comptroller General and, as such, is in violation of clause
2, rule XXI of the House. The additional duties implied by the
amendment might involve the Comptroller General insisting that time
and attendance reporting systems be set up in Members and committee
offices and may require setting up annual and sick leave systems
and involve examination of Members' personal diaries, perhaps even
their personal financial records. These are duties and procedures
clearly beyond the offices of the Comptroller General's present
audit authority. Under paragraph 842 of clause 2, rule XXI:
An amendment may not impose additional duties, not required
by law, or make the appropriation contingent upon the
performance of such duties. . .then it assumes the character of
legislation and is subject to a point of order.
Mr. Coughlin: Mr. Chairman, may I be heard further on the point
of order?
The Chairman Pro Tempore: (4) The gentleman from
Pennsylvania [Mr. Coughlin] is recognized.
---------------------------------------------------------------------------
4. Daniel D. Rostenkowski (Ill.).
---------------------------------------------------------------------------
Mr. Coughlin: Mr. Chairman, let me say that the amendment
imposes no additional duties on the General Accounting Office. It
proposes that these accounts be subject to audit by the GAO.
Title 31, section 67, of the United States Code annotated says
as follows:
. . . the financial transactions of each executive,
legislative, and judicial agency, including but not limited to
the accounts of accountable officers, shall be audited by the
General Accounting Office in accordance with such principles
and procedures and under such rules and regulations as may be
prescribed by the Comptroller General of the United States. . .
.
Mr. Chairman, it is very clear that the General Accounting
Office already has the authority and the duty to audit the accounts
of the legislative branch, and this amendment in no way expands or
extends that authority. The General Accounting Office has taken a
position that it is interested in having an expression of the will
of the legislative branch as to whether it wishes the General
Accounting Office to carry out that function. This amendment would
be an expression of that will.
Mr. Chairman, the amendment would in no way expand the
authority of the General Accounting Office or impose additional
duties on the General Accounting Office; it would only make these
accounts subject to audit. . . .
The Chairman Pro Tempore: The Chair is ready to rule.
The Chair certainly agrees that the language in the amendment
is ambiguous. The Chair takes into account, however, the debate,
and the debate as observed by the Chair indicates the amendment
certainly does extend the authority of the Comptroller General and
is subject to a point of order.
[[Page 6254]]
The Chair does recognize that there are conflicting
interpretations of the amendment under discussion. However, the
Chair has a duty under the precedents to construe the rule against
legislation strictly where there is an ambiguity. The Chair feels
he must sustain the point of order based on the interpretations
given the amendment during the debate.
Parliamentarian's Note: The amendment in this instance was ruled
out of order when it appeared that it was intended by its proponents to
work a change in the law and to require audits, rather than simply
state a condition precedent for obligation and expenditure of the
funds. A subsequent amendment which denied the use of funds not subject
to audit ``as provided by law'' was offered and adopted. In a ruling in
1970,(5) now effectively overruled by the precedent above, a
provision prohibiting the use of funds in an appropriation bill for
programs which are not subject to audit by the Comptroller General had
been held in order as a negative restriction on the availability of
funds. The language objected to in the proceedings in 1970 was as
follows:
---------------------------------------------------------------------------
5. See 116 Cong. Rec. 18412, 18413, 91st Cong. 2d Sess., June 4, 1970.
---------------------------------------------------------------------------
None of the funds herein appropriated for ``International
Financial Institutions'' shall be available to assist in the
financing of any project or activity the expenditures for which are
not subject to audit by the Comptroller General of the United
States.
Denying Funds to College Not in Compliance With Existing Law
Sec. 63.5 To an appropriation bill providing funds for construction of
college housing, an amendment specifying that none of the funds may
be allocated to an institution unless it is in full compliance with
a law requiring the withholding of funds to students who are
convicted of engaging in campus disorders was held to be a
limitation (not requiring additional duties on the part of any
federal official) and in order.
On June 24, 1969,(6) the Committee of the Whole was
considering H.R. 12307, an independent offices and Department of
Housing and Urban Development appropriation bill. The following
proceedings took place:
---------------------------------------------------------------------------
6. 115 Cong. Rec. 17085, 91st Cong. 1st Sess. For further discussion
of this and related precedents, see Sec. 53, supra,
particularly the ``Note on Contrary Rulings,'' which follows
Sec. 53.6.
---------------------------------------------------------------------------
[[Page 6255]]
College Housing
For payments authorized by section 1705 of the Housing and
Urban Development Act of 1968, $2,500,000: Provided, That the
limitation otherwise applicable to the total payments that may be
required in any fiscal year by all contracts entered into under
such section is increased by $5,500,000.
Mr. [William J.] Scherle [of Iowa]: Mr. Chairman, I offer an
amendment.
The Clerk read as follows:
Amendment offered by Mr. Scherle: On page 35, at the end of
line 24, strike the period and insert the following: ``And
provided further, 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.''
Mr. [William F.] Ryan (of New York): Mr. Chairman, I make a
point of order against the amendment.
The Chairman: (7) The gentleman will state his point
of order.
---------------------------------------------------------------------------
7. John S. Monagan (Conn.).
---------------------------------------------------------------------------
Mr. Ryan: I make a point of order on the ground that this
amendment is legislation on an appropriation bill. . . .
Mr. Scherle: Mr. Chairman, the amendment is in order because it
is in conformity with rule 21, clause 2, Jefferson's Manual in
pages 426-427, specifying that amendments to appropriation bills
are in order if they meet the qualifications of the ``Holman
Rule.''
My amendment is germane, negative in nature, and shows
retrenchment on its face. It does not either impose any additional
or affirmative duties or amend existing law.
Very simply, my amendment states that none of the funds
appropriated in this section will be given to institutions of
higher education if they do not comply with the present law,
section 504--Public Law 90-575--of the Higher Education Amendments
of 1968.
In support of my amendment, I cite section 843 of the rules of
the House discussing the Holman rule under rule 21. . . .
The Chairman: The Chair is prepared to rule and holds that the
amendment is a proper limitation. Therefore, the Chair overrules
the point of order.
Parliamentarian's Note: Section 504 of Public Law No. 90-575,
referred to above, provided in part:
(a) If an institution of higher education determines, after
affording notice and opportunity for hearing to an individual
attending, or employed by, such institution, that such individual
has been convicted by any court of record of any crime which was
committed after the date of enactment of this Act and which
involved the use of . . . force, disruption, or the seizure of
property under control of any institution of higher education to
prevent officials or students in such institution from engaging in
their duties or pursuing their studies, and that such crime was of
a serious nature and contributed to a substantial disruption of the
administration of the institution with respect to which such crime
was
[[Page 6256]]
committed, then the institution which such individual attends, or
is employed by, shall deny for a period of two years any further
payment to, or for the direct benefit of, such individual under
[specified] programs. . . .
(b) If an institution of higher education determines, after
affording notice and opportunity for hearing to an individual
attending, or employed by, such institution, that such individual
has willfully refused to obey a lawful regulation or order of such
institution after the date of enactment of this Act, and that such
refusal was of a serious nature and contributed to a substantial
disruption of the administration of such institution, then such
institution shall deny, for a period of two years, any further
payment to, or for the direct benefit of, such individual under
(specified) programs.
Export-Import Bank--Denial of Funding for Certain Countries
Sec. 63.6 To a supplemental appropriation bill including funds for the
Export-Import Bank, an amendment providing that none of the funds
made available by the bill shall be used by the bank to guarantee
the payment of obligations incurred by Communist countries, or to
participate in extension of credit to any such country, was held in
order as a proper limitation merely defining noneligible recipients
of those funds.
On Oct. 18, 1966,(8) the Committee of the Whole was
considering H.R. 18381. The following proceedings took place:
---------------------------------------------------------------------------
8. 112 Cong. Rec. 27425, 89th Cong. 2d Sess.
---------------------------------------------------------------------------
Amendment offered by Mr. [Paul] Findley [of Illinois]: On page
16, after line 3, add the following:
``Sec. 803. None of the funds made available because of the
provisions of this bill shall be used by the Export-Import Bank to
either guarantee the payment of any obligation hereafter incurred
by any Communist country (as defined in section 620(f) of the
Foreign Assistance Act of 1961, as amended) or any agency or
national thereof, or in any other way to participate in the
extension of credit to any such country, agency, or nation in
connection with the purchase of any product by such country, agency
or nation.''
Mr. [George H.] Mahon [of Texas]: Mr. Chairman, it appears,
although I have not had an opportunity to examine a copy of the
amendment submitted by the gentleman from Illinois, that the
amendment is subject to the point of order that it is legislation
on an appropriation bill and seemingly requires additional duties.
. . .
Mr. Findley: Mr. Chairman, this amendment is taken exactly from
the language of an amendment which was part of an appropriation
bill in 1963. I am sure many of the Members present today will
recall the Christmas Eve session which did extend to that late date
because of this amendment. The amendment itself does not impose any
burdens, duties, or obligations on the President. It is simply an
act of re
[[Page 6257]]
trenchment and withholding and denial of funds for specific
purposes. . . .
The Chairman: (9) The Chair is prepared to rule.
---------------------------------------------------------------------------
9. James G. O'Hara (Mich.).
---------------------------------------------------------------------------
The Chair finds that the amendment offered by the gentleman
from Illinois [Mr. Findley] is in the nature of a limitation on an
appropriation and does not, in the opinion of the Chair, impose
extra burdens or administrative duties upon the administration in a
way that would subject it to a point of order. Therefore, the Chair
overrules the point of order.
General Services Administration--``Buy-American'' Requirements
Sec. 63.7 A section in a general appropriation bill prohibiting the use
of funds in the bill for the purchase of foreign-made tools except
to the extent that the Administrator of the General Services
Administration determines that domestically produced tools are
unavailable for procurement, was held to impose additional duties
on that federal official and was ruled out as legislation in
violation of Rule XXI clause 2.
On June 22, 1972,(10) during consideration in the
Committee of the Whole of a general appropriation bill (H.R. 15585), a
point of order was raised against the following provision:
---------------------------------------------------------------------------
10. 118 Cong. Rec. 22097, 22098, 92d Cong. 2d Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
Sec. 505. No part of any appropriation contained in this
Act shall be available for the procurement of or for the
payment of the salary of any person engaged in the procurement
of any hand or measuring tool(s) not produced in the United
States or its possessions except to the extent that the
Administrator of General Services or his designee shall
determine that a satisfactory quality and sufficient quantity
of hand or measuring tools produced in the United States or its
possessions cannot be procured as and when needed from sources
in the United States and its possessions or except in
accordance with procedures prescribed by section 6-104.4(b) of
Armed Services Procurement Regulation dated January 1, 1969, as
such regulation existed on June 15, 1970. This section shall be
applicable to all solicitations for bids opened after its
enactment.
Mr. [H. R.] Gross [of Iowa]: Mr. Chairman, I make a point of
order.
The Chairman: (11) The gentleman will state it.
---------------------------------------------------------------------------
11. John S. Monagan (Conn.).
---------------------------------------------------------------------------
Mr. Gross: I make a point of order against the language to be
found on page 31, beginning on line 25, section 505, and running to
page 32 to and including line 14, as being legislation on an
appropriation bill. I specifically refer, Mr. Chairman, to the
language found on page 32 which directs ``that the Administrator of
General Services or his designee shall determine that a
satisfactory quality and sufficient quantity of hand or measuring
tools
[[Page 6258]]
produced in the United States'' and so on and so forth.
The Chairman: Does the gentleman from Oklahoma care to be heard
on the point of order?
Mr. [Thomas J.] Steed [of Oklahoma]: Mr. Chairman, this proviso
has been in the legislation for a great many years. At this date
and time it imposes no function on the GSA it is not already doing.
So we think it is a very regular part of the bill, and I think by
precedent it is entitled to remain.
The Chairman: The Chair is ready to rule.
The fact that the provision has been carried in prior
appropriation bills is not conclusive in connection with the point
of order that is raised at this time. The provision does add
additional requirements and duties. In the opinion of the Chair
this is legislation on an appropriation bill, and the point of
order is sustained.
Parliamentarian's Note: Mr. Steed did make the point that since
this provision had been carried for several years, the Administrator of
the General Services Administration was in fact already performing the
``extra duties'' which were required by the amendment.
The extra duties which may invalidate an amendment as being
``legislation'' are duties not now required by law for the fiscal year
in question. The fact that they may be presently in effect, as required
for present and prior years in annual appropriation acts would not
protect an amendment from a point of order under Rule XXI clause 2.
Denying Housing Funds--Availability Contingent on New Analysis of Need
Sec. 63.8 To an appropriation bill, an amendment providing that no
funds in the bill be used for expenses of preparing housing market
analyses which do not include a breakdown of the housing needs of
the various segments of the population was held to be legislation
imposing new duties to provide information, where no law was cited
authorizing the type of analysis required by the amendment.
On Mar. 31, 1954,(12) during consideration in the
Committee of the Whole of the independent offices appropriation bill
[H.R. 8583], a point of order was raised against the following
amendment:
---------------------------------------------------------------------------
12. 100 Cong. Rec. 4267, 4268, 83d Cong. 2d Sess.
---------------------------------------------------------------------------
Mr. [Sidney R.] Yates [of Illinois]: Mr. Chairman, I offer
another amendment.
The Clerk read as follows:
Amendment offered by Mr. Yates: Page 65, line 11, after the
colon and
[[Page 6259]]
following the words ``(12 U.S.C. 1701)'', insert the following:
``That no part of any appropriation or fund in this act shall
be used for administrative expenses in connection with the
preparation of any housing market analyses which do not include
a breakdown of the housing needs of the various segments of the
population including those segments which are unable to obtain
adequate housing under established home-financing programs.''
Mr. [John] Phillips [of California]: Mr. Chairman, I make the
same point of order that I did to the other amendment. It is
legislation upon an appropriation bill and requires additional
duties and responsibilities of an administrative agency.
Mr. Yates: Mr. Chairman, in response to that, let me say this
is certainly a proper limitation upon an appropriation. Funds are
provided right now for the preparation of such housing market
analyses. All this would do would be to limit the funds to certain
types of housing market analyses and I submit, therefore, the
amendment is proper.
The Chairman: (13) The Chair is ready to rule.
---------------------------------------------------------------------------
13. Louis E. Graham (Pa.).
---------------------------------------------------------------------------
Up to the word ``analyses,'' in the opinion of the Chair, the
amendment is all right. Following that, the amendment is an
infringement upon the duties of an executive and imposes additional
duties. In the opinion of the Chair, the point of order should be
sustained and is sustained.
National Aeronautics and Space Administration; Denial of Funds for
U.S.-Soviet Joint Venture
Sec. 63.9 To a general appropriation bill, including funds for the
National Aeronautics and Space Administration, an amendment
providing that no part of the funds therein shall be used for
expenses of a joint United States-Russian manned lunar landing was
held a proper limitation restricting the availability of funds and
in order.
On Oct. 10, 1963,(14) the Committee of the Whole was
considering H.R. 8747, an independent offices appropriation bill. The
following proceedings took place:
---------------------------------------------------------------------------
14. 109 Cong. Rec. 19258-60, 88th Cong. 1st Sess.
---------------------------------------------------------------------------
Amendment offered by Mr. [Thomas M.] Pelly [of Washington]:
Page 37, after line 17, insert the following new paragraph:
``No part of any appropriation made available to the National
Aeronautics and Space Administration by this Act shall be used for
expenses of participating in a manned lunar landing to be carried
out jointly by the United States and any Communist, Communist-
controlled, or Communist-dominated country, or for expenses of any
aeronautical and space activities [as defined in sec. 103(1) of the
National Aeronautics and Space Act of 1958]
[[Page 6260]]
which are primarily designed to facilitate or prepare for
participation in such a joint manned lunar landing, except pursuant
to an agreement hereafter made by the President by and with the
advice and consent of the Senate as provided by section 205 of the
National Aeronautics and Space Act of 1958.''
Mr. [Albert] Thomas [of Texas]: Mr. Chairman, I make a point of
order against the amendment. . . .
The Chairman: (15) The Chair would like to ask the
gentleman from Washington a question. What is the reason for the
inclusion of language at the end of the amendment reading:
---------------------------------------------------------------------------
15. Richard Bolling (Mo.).
---------------------------------------------------------------------------
Except pursuant to an agreement hereafter made by the
President by and with the advice and consent of the Senate as
provided by section 205 of the National Aeronautics and Space
Act of 1958.
The Chair, to make it clear why he is asking the question, has
examined section 205 of that act. That says:
international cooperation
Sec. 205. The Administration, under the foreign policy
guidance of the President, may engage in a program of
international cooperation in work done pursuant to this Act,
and in the peaceful application of the results thereof,
pursuant to agreements made by the President with the advice
and consent of the Senate.
The problem the Chair is considering is why there is any need
to include the language at the end of the amendment unless in some
way it changes existing law?
Mr. Pelly: Mr. Chairman, I would say that it does not change
existing law but simply follows it. But, in order to clarify this
matter I ask unanimous consent to strike from the amendment the
words from ``except pursuant to an agreement'' to the end.
The Chairman: Is there objection to the request of the
gentleman from Washington?
There was no objection. . . .
The Chairman: Does the gentleman from Texas desire to be heard?
Mr. Thomas: Yes, Mr. Chairman. That partially cures it, but it
does not cure it by any means. I read:
Or for expenses of any aeronautical and space activities
(as defined in section 103(1) of the National Aeronautics and
Space Act of 1958) which are primarily designed to facilitate
or prepare for participation in such a joint manned lunar
landing.
Somebody is going to have to spend a whole lot of time on this.
You are placing a tremendous burden upon somebody to do what?
``To primarily decide or prepare for participation in a joint moon
landing.''
Mr. Chairman, there are four or five conditions contained in
this. It is extra duty. Somebody is going to have to make that
decision. It is purely legislation . . . and I said to my
distinguished friend from Washington a while ago, we will take it
to conference and I know the gentleman will give us the liberty of
throwing it out if we get in trouble and get too far into foreign
affairs. . . .
The Chairman: The Chair is prepared to rule.
The Chair has examined the amendment and the Chair is of the
opinion that it is a proper limitation. Therefore, the point of
order is overruled.
[[Page 6261]]
Imposing Delay on Expenditure
Sec. 63.10 To a bill appropriating funds for the National Aeronautics
and Space Administration (which had authority by law to use
appropriations for capital expenditures providing that the
Committee on Science and Astronautics of the House was notified) an
amendment specifying that no funds therein appropriated could be
used for capital items until 14 days after the notification
required by law, was held to be a limitation upon the expenditure
of funds, not imposing additional duties and in order.
On June 29, 1959,(16) the Committee of the Whole was
considering H.R. 7978, a supplemental appropriation bill. The following
proceedings took place:
---------------------------------------------------------------------------
16. 105 Cong. Rec. 12125, 12126, 86th Cong. 1st Sess. For another
precedent involving the issues raised by an attempt to regulate
the rate or timing of expenditures, see Sec. 80.5, infra.
---------------------------------------------------------------------------
Amendment offered by Mr. [Albert] Thomas [of Texas]: On page 4,
line 16, after ``expended'' insert: ``Provided, That no part of the
foregoing appropriation shall be available for other items of a
capital nature which exceed $250,000 until 14 days have elapsed
after notification as required by law to the Committee on Science
and Astronautics of the House of Representatives and the Committee
on Aeronautical and Space Sciences of the Senate.'' . . .
Mr. [John] Taber [of New York]: Mr. Chairman, I make the point
of order against the amendment on the ground that it changes
existing law and requires additional duties on the part of the
Space Agency. . . .
The Chairman: (17) The Chair is prepared to rule. .
. .
---------------------------------------------------------------------------
17. Paul J. Kilday (Tex.).
---------------------------------------------------------------------------
The Chair calls attention to that portion of subsection (b) of
Public Law 86-45 approved June 15, 1959, with reference to
expenditures in excess of $250,000 and notice to the legislative
committees. In addition thereto, the amendment contains a period of
notice of 14 days. However, this does not impose a new duty,
because it is a limitation upon the expenditure of the funds within
a period of 14 days.
The Chair therefore overrules the point of order.
Denial of Research and Development Funds Under Certain Types of
Contracts
Sec. 63.11 An amendment providing that none of the funds appropriated
in the bill may be used to enter into research or development
contracts under which new inventions or patents, conceived in the
process of per
[[Page 6262]]
forming the contract, do not become the property of the United
States was held to be a limitation merely describing contracts
which may not be funded and imposing only incidental additional
duties on the executive branch and therefore in order.
On May 5, 1960,(18) the Committee of the Whole was
considering H.R. 11998, a Department of Defense appropriation bill. The
following proceedings took place:
---------------------------------------------------------------------------
18. 106 Cong. Rec. 9624-27, 86th Cong. 2d Sess.
An issue that might be addressed more directly today is
whether, under existing law, the Department of Defense is given
discretion with regard to entering into contracts of the type
described. The effect of provisions which affect the
discretionary authority of officials that is conferred by law
is discussed in Sec. 51, supra.
---------------------------------------------------------------------------
Emergency Fund, Department of Defense
For transfer by the Secretary of Defense, with the approval of
the Bureau of the Budget, to any appropriation for military
functions under the Department of Defense available for research .
. . and evaluation, or procurement or production related thereto,
to be merged with and to be available for the same purposes, and
for the same time period, as the appropriation to which
transferred, $150,000,000. . . .
Mr. [Harris B.] McDowell [Jr., of Delaware]: Mr. Chairman, I
offer an amendment.
The Clerk read as follows:
Amendment offered by Mr. McDowell: On page 29, after line
13, insert the following:
``Sec. 501. None of the funds appropriated in this act
shall be available for making payments on any research or
development contract under which any invention, improvement, or
discovery conceived or first actually reduced to practice in
the course of performance of such contract or any subcontract
thereof, or under which any patent based on such invention,
improvement, or discovery, does not become the property of the
United States.''
And renumber the following sections accordingly.
Mr. [Gerald R.] Ford [of Michigan]: Mr. Chairman, I make a
point of order against the amendment.
The Chairman: (19) The gentleman will state it. . .
.
---------------------------------------------------------------------------
19. Eugene J. Keogh (N.Y.).
---------------------------------------------------------------------------
Mr. [George H.] Mahon [of Texas]: The point of order is that
this proposed amendment would imply additional duties beyond the
scope of the bill. . . .
The Chairman: The Chair is ready to rule. . . .
The Chair has had an opportunity to reread the language of the
amendment and to refer to the precedents applicable, in the opinion
of the Chair, thereto. It is the opinion of this occupant of the
chair that the amendment offered by the gentleman from Delaware is,
in fact, a limitation on the appropriations appropriated in this
act, and while it may be argued that the limitation imposed causes
or results in additional burdens on the executive branch, in the
opinion of this occupant of the chair, that is normal and
reasonable to
[[Page 6263]]
expect in the carrying out of the limitation.
Therefore, the Chair is constrained to overrule the point of
order.
The point of order is overruled.
Setting Affirmative Policy
Sec. 63.12 Language in an appropriation bill making appropriations for
the Patent Office for issuance of certain publications and
providing that ``such other papers when reproduced for sale to be
sold at such prices as determined by the Commissioner'' was
conceded to be legislation on an appropriation bill and held not in
order.
On May 15, 1947,(20) during consideration in the
Committee of the Whole of a general appropriation bill (H.R. 3311), a
point of order was raised against the following provision:
---------------------------------------------------------------------------
20. 93 Cong. Rec. 5383, 80th Cong. 1st Sess.
---------------------------------------------------------------------------
Patent Office
Salaries and expenses: For necessary expenses, including
personal services in the District of Columbia and the salary of the
Commissioner at $10,000 per annum . . . production by
photolithographic process of copies of weekly issue of drawings of
patents and designs, reproduction of copies and drawings and
specifications of exhausted patents, designs, trade-marks, foreign
patent drawings, and other papers, such other papers when
reproduced for sale to be sold at such prices as determined by the
Commissioner; photo prints of pending application drawings; and
other contingent and miscellaneous expenses of the Patent Office:
Provided, That the headings of the drawings for patented cases may
be multigraphed in the Patent Office for the purpose of
photolithography; $8,000,000.
Mr. [Ralph E.] Church [of Illinois]: Mr. Chairman, a point of
order.
The Chairman: (1) The gentleman will state it.
---------------------------------------------------------------------------
1. Carl T. Curtis (Nebr.).
---------------------------------------------------------------------------
Mr. Church: Mr. Chairman, I make a point of order against the
language appearing on page 53, lines 10 and 11, as follows:
Such other papers when reproduced for sale to be sold at
such prices as determined by the Commissioner--
That sentence is legislation on an appropriation bill and
unauthorized by law. . . .
I cannot, Mr. Chairman, withdraw my point of order. I insist on
my point of order.
Mr. [Karl] Stefan [of Nebraska]: We concede the point of order,
Mr. Chairman.
The Chairman: The Chair sustains the point of order.
Post Office--Denial of Funds for Seizure of Mail
Sec. 63.13 An amendment to a Treasury and Post Office De
[[Page 6264]]
partments appropriation bill, providing that no funds therein may
be used for the seizure of mail (in connection with income tax
investigations) without a search warrant authorized by law, was
held to be a limitation not imposing additional duties and in
order.
On Apr. 5, 1965,(2) the following proceedings took
place:
---------------------------------------------------------------------------
2. 111 Cong. Rec. 6869, 6870, 89th Cong. 1st Sess.
---------------------------------------------------------------------------
Amendment offered by Mr. [Durward G.] Hall [of Missouri]: On
page 8, immediately before the period in line 11, insert the
following: ``: Provided, That no appropriation made by any
provision of this Act for the fiscal year ending June 30, 1966, may
be used for the seizure of mail without a search warrant authorized
by law in carrying out the activities of the United States in
connection with the seizure of property for collection of taxes due
to the United States.''
Mr. [Thomas J.] Steed [of Oklahoma]: Mr. Chairman, I reserve a
point of order on this amendment.
The Chairman: (3) The gentleman from Oklahoma
reserves a point of order. . . .
---------------------------------------------------------------------------
3. John A. Blatnik (Minn.).
---------------------------------------------------------------------------
Mr. Steed: Mr. Chairman, I renew my point of order against the
amendment because it is not a limitation on appropriations. It
requires actions by the Bureau of Internal Revenue, which can be
authorized only by legislation.
The Chairman: The language is a limitation here. The Chair
overrules the point of order. The point of order is not sustained.
Parliamentarian's Note: But see the proceedings of June 16, 1977
(discussed in the Parliamentarian's Note following Sec. 77.1, infra),
where a requirement for a search warrant ``based on probable cause as
authorized by law'' was ruled out as legislation imposing new
affirmative duties to make applications to courts, a procedure not
uniformly required by the federal courts.
Treasury Department to Determine Rates of Exchange
Sec. 63.14 Language in an appropriation bill providing for purchase of
foreign currencies at rates of exchange determined by the Treasury
Department was held to be legislation and not in order.
On Aug. 7, 1957,(4) during consideration in the
Committee of the Whole of a supplemental appropriation bill (H.R.
9131), a point of order was raised against the following provision:
---------------------------------------------------------------------------
4. 103 Cong. Rec. 13797, 13911, 13912, 85th Cong. 1st Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
Educational, Scientific, and Cultural Activities
For expenses to carry out the provisions of section 1011(d)
of the
[[Page 6265]]
United States Information and Educational Exchange Act of 1948,
as amended (22 U.S.C. 1442(d)), $3,525,000: Provided, That this
amount shall be used for purchase of foreign currencies from
the special account for the informational media guaranty
program, at rates of exchange determined by the Treasury
Department, and the amounts of any such purchases shall be
covered into miscellaneous receipts of the Treasury. . . .
Mr. [Homer H.] Budge [of Idaho]: Mr. Chairman, I make a point
of order against the language contained in lines 1 through 10, page
18, the point of order being that it is legislation upon an
appropriation bill giving affirmative direction and, further, that
it imposes new duties on the Treasury Department. I think the
language obviously imposes a new duty on the Treasury Department
and also there is obviously a proviso which is legislation on an
appropriation bill.
The Chairman: (5) Does the gentleman from New York
[Mr. Rooney] desire to be heard?
---------------------------------------------------------------------------
5. Paul J. Kilday (Tex.).
---------------------------------------------------------------------------
Mr. [John J.] Rooney: Yes, Mr. Chairman; but before referring
to the basic law I should like to point out that the language
presently contained at page 18 of the bill was submitted to the
committee by the Department of State, through Deputy Assistant
Secretary Wilkinson and Special Assistant to the Assistant
Secretary Bernard Katzen. The department drafted it.
Section 1442, subdivision (d), of title 22 of the United States
Code is entitled ``Sale of Foreign Currencies--Special Account--
Availability.'' This provides that--
Foreign currencies available after June 30, 1955, from
conversions made pursuant to the obligation of informational
media guarantees may be sold, in accordance with Treasury
Department regulations, for dollars which shall be deposited in
the special account and shall be available for payments under
new guaranties. Such currencies shall be available as may be
provided for the Congress in appropriation acts, for use for
educational, scientific, and cultural purposes which are in the
national interest of the United States, and for such other
purposes of mutual interest as may be agreed to by the
governments of the United States and the country from which the
currencies derive.
Now, the proviso beginning on line 5 of page 18 of the pending
bill states:
Provided, That this amount shall be used for purchase of
foreign currencies from the special account for the
informational media guaranty program, at rates of exchange
determined by the Treasury Department, and the amounts of any
such purchases shall be covered into miscellaneous receipts of
the Treasury.
The purpose of this language is to provide that the
appropriation of $3,525,000 referred to in lines 1 to 5 on that
page of the bill shall be used to purchase from the United States
Treasury Israeli pounds in that amount and with which this
appropriation is connected so that they will be covered into
miscellaneous receipts of the Treasury.
The Chairman: May the Chair inquire of the gentleman from New
York if the section of the code from which he read refers to
purchases as well as sales?
Mr. Rooney: I assume from the language contained in that
section of the
[[Page 6266]]
code that it refers to both purchases and sales. This proviso makes
it clear and certain that the money appropriated would not come
from the general fund.
The Chairman: Then, the gentleman from New York states it as a
fact that the section of the code from which he read uses only the
word ``sale'' or ``sold'' rather than ``purchase''?
Mr. Rooney: I must concede that only the ``sold'' is contained
in the section, Mr. Chairman.
However, I should like to add that when this section of the
code refers to a sale it is certainly implied that it also means a
purchase. There cannot be a sale without a purchase.
Mr. Budge: Mr. Chairman, if the gentleman will yield, the
gentleman from New York has not addressed himself to the language
``at rates of exchange determined by the Treasury Department,''
which language obviously gives the Treasury Department additional
duties which are not in the original act. . . .
The Chairman: The Chair is prepared to rule.
The gentleman from Idaho [Mr. Budge] has made a point of order
against that portion of the bill appearing on lines 1 through 10 on
page 18 on the ground that it is legislation on an appropriation
bill. The gentleman from New York [Mr. Rooney] has cited the
language contained in title 22, United States Code, section
1442(d), and that the reference to that section indicates that
authority and duty in connection with the sale of foreign
currencies is imposed, whereas the language in the bill imposes the
duty in connection with purchases of foreign currencies.
The Chair is of the opinion that the language constitutes
legislation on an appropriation bill and sustains the point of
order.
Indian Affairs; Travel Expenses of Tribal Councils
Sec. 63.15 Appropriations for expenses of tribal councils for travel,
including supplies and equipment, $5 per day in lieu of
subsistence, and 5 cents per mile for use of automobiles (including
visits to Washington, D.C.) when authorized and approved by the
Commissioner of Indian Affairs, was held not authorized by law and
to include legislation.
On Mar. 1, 1938,(6) the Committee of the Whole was
considering H.R. 9621, an Interior Department appropriation. When the
following amendment was offered, a point of order was raised against
certain of its provisions:
---------------------------------------------------------------------------
6. 83 Cong. Rec. 2646, 75th Cong. 3d Sess.
---------------------------------------------------------------------------
Amendment offered by Mr. Johnson of Oklahoma: Page 63, line 8,
insert:
``Expenses of tribal councils or committees thereof (tribal
funds): For traveling and other expenses of members of tribal
councils, business committees, or other tribal organizations, when
engaged on business of the tribes, including supplies and
equipment, not to exceed $5 per diem in lieu of subsistance,
[[Page 6267]]
and not to exceed 5 cents per mile for use of personally owned
automobiles, and including visits to Washington, D.C., when duly
authorized or approved in advance by the Commissioner of Indian
Affairs, $50,000, payable from funds on deposit to the credit of
the particular tribe interested: Provided, That except for the
Navajo Tribe, not more than $5,000 shall be expended from the funds
of any one tribe or band of Indians for the purposes herein
specified.''
Mr. [John] Taber [of New York]: Mr. Chairman, I make the point
of order against the amendment that it is not authorized by law and
that it creates additional duties for the Commissioner of Indian
Affairs and, generally, that the entire matter is unauthorized.
Mr. [Jed] Johnson of Oklahoma: Mr. Chairman, this is authorized
under the Snyder Act, and I call attention to title 25, section 13,
which clearly authorizes this expenditure. . . .
The Chairman: (7) The Chair is ready to rule. . . .
---------------------------------------------------------------------------
7. Marvin Jones (Tex.).
---------------------------------------------------------------------------
The item to which attention has been called in the last
paragraph of section 13, title 25, United States Code, includes the
following language:
And for general and incidental expenses in connection with
the administration of Indian affairs.
It does not seem to the Chair that this language is sufficient
to include the various items that are included in the amendment
offered by the gentleman from Oklahoma, and the Chair therefore
feels constrained to sustain the point of order.
Denying Salary to Postal Service Officer Who Undertakes Certain Actions
Sec. 63.16 Where an amendment to an appropriation bill denied the
availability of funds for payment of the salary of any officer of
the Postal Service who took certain actions with respect to
employees who communicated with Members of Congress concerning the
Postal Service, the Chair found that such provision did not impose
additional duties on federal officers, but ruled the amendment out
of order on other grounds.
On June 28, 1971,(8) during consideration in the
Committee of the Whole of a general appropriation bill (H.R. 9271), a
point of order was raised against the following amendment:
---------------------------------------------------------------------------
8. 117 Cong. Rec. 22442, 22443, 92d Cong. 1st Sess.
---------------------------------------------------------------------------
Mr. William D. Ford [of Michigan]: Mr. Chairman, I offer an
amendment.
The Clerk read as follows:
Amendment offered by Mr. William D. Ford: On page 36,
insert ``(a)'' immediately after ``Sec. 508.'' in line 10; and
immediately below line 14 on page 36 insert the following:
``(b) No part of any appropriation contained in this or any
other Act shall be available for the payment of the salary of
any officer or employee
[[Page 6268]]
of the United States Postal Service, or any officer or employee
of the Government of the United States outside the United
States Postal Service, who--
``(1) prohibits or prevents, or attempts or threatens to
prohibit or prevent, any officer or employee of the United
States Postal Service from having any direct oral or written
communication or contact with any member or committee of
Congress in connection with any matter pertaining to the
employment of such officer or employee or pertaining to the
United States Postal Service in any way, irrespective of
whether such communication or contact is at the initiative of
such officer or employee or in response to the request or
inquiry of such Member or committee; or
``(2) removes, suspends from duty without pay, demotes,
reduces in rank, seniority, status, pay, or performance or
efficiency rating, denies promotion to, relocates, reassigns,
transfers, disciplines, or discriminates in regard to any
employment right, entitlement, or benefit, or any term or
condition of employment of, any officer or employee of the
United States Postal Service, or attempts or threatens to
commit any of the foregoing actions with respect to such
officer or employee, by reason of any communication or contact
of such officer or employee with any Member or committee of
Congress as described in paragraph (1) of this subsection.''
Mr. [Frank T.] Bow [of Ohio]: Mr. Chairman, I make a point of
order against the amendment, and I should like to be heard on the
point of order.
The Chairman: (9) At this point?
---------------------------------------------------------------------------
9. John S. Monagan (Conn.).
---------------------------------------------------------------------------
Mr. Bow: Yes, Mr. Chairman.
Mr. Chairman, this, it seems to me, is subject to a point of
order in several instances. First of all, there is paragraph (b) of
the amendment. There is a provision that no part of any
appropriation contained in this or any other act shall be available
for the payment of the salary of any officer or employee of the
U.S. Postal Service. It is not limited to this act but to any other
act, which I think makes it subject to a point of order.
Furthermore, under the next provision, which prohibits or
prevents, or attempts or threatens to prohibit or prevent, that
puts such additional duties on the director of the Postal Service
that it becomes almost impossible for him to administer this,
particularly as to further threats in the future.
I believe it is very apparent from reading this that additional
duties are placed on the executive branch of the Government, on the
Postal Service, and in addition to any objections to part (b) or
the rest of the amendment, I believe it is sufficient to sustain
the point of order.
The Chairman: Does the gentleman from Michigan desire to be
heard on the point of order?
Mr. William D. Ford: Yes, I do, Mr. Chairman.
First of all, it is not necessary to legislate with this
amendment, because the law that this amendment attempts to enforce
has been on the books and it has been the law of this country since
1912. We now have substantive law which now very substantially says
that you shall not do any of the things set forth in this act. What
this amendment proposes to do is withhold the expenditure of the
supplemental funds being appropriated by this bill to the operation
of the Postal Service from anyone
[[Page 6269]]
who violates the law that has been the law since 1912. The only
determination that is necessary to be made by anybody is not to
violate the law. . . .
The Chairman: The . . . Chair is ready to rule.
The Chair finds that this amendment does not impose additional
duties to the extent that is objectionable under the precedents
relating to limitations on appropriation bills. However, the Chair
also finds that the amendment does seek to cover matters beyond
those which are in the purview of this bill since it provides that
no part of any appropriation contained in this or any other act
shall be available for certain purposes with respect to officers or
employees of the Government whether inside or outside the U.S.
Postal Service or agencies covered by this bill.
Therefore, this constitutes legislation on the pending
appropriation bill and the Chair sustains the point of order.
CHAPTER 26
Unauthorized Appropriations; Legislation on Appropriation Bills
F. PERMISSIBLE LIMITATIONS ON USE OF FUNDS
Sec. 64. Generally
When points of order are made under the rule prohibiting
legislation on appropriation bills, rulings thereon will frequently
turn on whether the proposition in question is in fact one of
legislation, or whether it is merely a permissible ``limitation'' on
the funds sought to be appropriated. The basic theory of limitations is
that, just as the House may decline to appropriate for a purpose
authorized by law, it may by limitation prohibit the use of the money
for part of the purpose while appropriating for the remainder of it.
The limitation cannot change existing law, but may negatively restrict
the use of funds for an authorized purpose or project. A limitation may
furthermore serve the purpose of foreclosing possible interpretations
of language in an appropriation bill that otherwise might be
administratively construed to include matters other than those actually
contemplated by the bill.(10)
---------------------------------------------------------------------------
10. See the statement of the Chair at 83 Cong. Rec. 2655, 75th Cong. 3d
Sess., Mar. 1, 1938, in the course of ruling on a point of
order against language contained in H.R. 9621, an Interior
Department appropriation bill.
---------------------------------------------------------------------------
A useful discussion and a list of tests to be applied in
determining whether language in an appropriation bill or amendment
thereto constitutes a permissible limitation can be found in a ruling
made on Jan. 8, 1923.(11) The Chairman,(12) in
the course of rul
[[Page 6270]]
ing on a point of order against provisions of a District of Columbia
appropriation bill, set forth a series of tests for determining the
validity of a purported limitation under the rules. The checklist is
reproduced here for quick reference:
---------------------------------------------------------------------------
11. 64 Cong. Rec. 1422, 67th Cong. 4th Sess.
12. Frederick C. Hicks (N.Y.).
---------------------------------------------------------------------------
1. Does the limitation apply solely to the appropriation under
consideration?
2. Does it operate beyond the fiscal year for which the
appropriation is made?
3. Is the limitation accompanied or coupled with a phrase applying
to official functions, and if so, does the phrase give affirmative
directions in fact or in effect, although not in form?
4. Is it accompanied by a phrase which might be construed to impose
additional duties or permit an official to assume an intent to change
existing law?
5. 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 statement of the Chair was as follows:
The Chair is cognizant of confusion in the rulings in cases
somewhat akin to this one, and realizes that in considering
questions of limitations as in determining questions of germaneness
there is considerable latitude between what is clearly permissible
and what is as clearly repugnant to the rule. The Chair feels that
in traversing this twilight zone he is justified in leaning toward
the side of conservatism in regard to admission of legislation on
appropriation bills. In the last few years there has been a very
perceptible increase in the amount of legislative provisions
incorporated in bills reported by the Appropriations Committee. The
growth of this practice, in the opinion of the Chair, is unwise and
is not warranted by the rules or procedure of the House. It is
probably due to the fact that, as formerly many of the standing
committees had jurisdiction over both appropriations and
legislation, a clear distinction of these separate functions was
not made in the bills reported, which left the Appropriations
Committee in the position of finding that many of the items for
which it desired to appropriate were unauthorized. This made it
incumbent upon the Appropriations Committee, in order to carry on
its work, to devise these legislative limitations.
Under our rules the Committee on Appropriations can consider
only questions of appropriations, the subjects of legislation and
authorization being confined to the jurisdiction of standing
committees constituted for that very purpose and equipped with
facilities to conduct investigations. Feeling that each committee
should be held strictly to the consideration of its own particular
work, the Chair is of the opinion that too much latitude has been
given in the employment of limitations, and that the practice of
resorting to
[[Page 6271]]
this method of securing, in an indirect way, legislation on
appropriation bills has been abused, and extended beyond the
intention of the rule. . . .
Since Congress has the right to appropriate, Congress has the
right to refuse to appropriate, even though the appropriation is
authorized, and this may be done in two ways: First, by not
appropriating for a certain purpose at all, and second, by denying
the use of a part of an appropriation for a certain purpose. This
is the principle on which the theory of limitations is grounded and
should always be kept in mind in construing a limitation.
To use the illustration of the late James R. Mann, of honored
memory, Congress, having the right to appropriate for red-headed
men, may specifically deny the use of an appropriation for the
payment of red-headed men. Therefore, while it is not in order to
require the employment of red-headed men or even the payment of
red-headed men, it is in order to deny the use of an appropriation
for the payment of red-headed men, even though existing law permits
the employment and payment of red-headed men.
But the misapplication and the difficulty in construing the
rule has occurred when a limitation is accompanied by something
additional in the nature of a further limitation or restriction.
For example, there is no difficulty in the following provision:
``No part of this appropriation may be expended in the payment of
red-headed men.''
But take the following proposition: ``No part of this
appropriation may be used for the payment of any persons except
red-headed men.''
In construing the last example it is necessary for the Chair to
look to the effect rather than to the form. Does the language
merely deny the use of the appropriation or does it go further and
require the employment of red-headed men? If existing law does not
authorize the employment of red-headed men, or expressly prohibits
the employment of red-headed men, the language clearly becomes not
a limitation but becomes legislation making an appropriation for an
unauthorized purpose and in addition proposes legislation
permitting the employment of red-headed men contrary to existing
law. But if the law authorizes the employment of red-headed men the
language merely becomes explanatory of the recipient of the
appropriation, and is in fact merely an appropriation for a certain
purpose. Therefore, as a test in determining the legality of such
language, the Chair may properly ask himself this question: ``Would
it be in order to make a direct appropriation for this purpose
instead of denying the use of this appropriation except for the
specified purpose? '' If the question could be answered in the
affirmative this particular class of limitations would be in order.
Approaching the point of order now before us, in the
consideration of which the merits of the proposition are not under
review, the Chair will cite a number of precedents that bear on the
subject of limitations, quoting from Hinds' Precedents:
``No. 3931. Legislation may not be proposed under the form of a
limitation.
``No. 3976. The language of limitation prescribing the
conditions under which the appropriation may be used
[[Page 6272]]
may not be such as, when fairly construed, would change existing
law.
``No. 3812. The enactment of positive law where none exists is
constructed as a ``provision changing existing law,'' such as is
forbidden in an appropriation bill.
``No. 3967. A limitation is negative in its nature and may not
include positive enactments establishing rules for executive
officers.
``No. 3854. A proposition to establish affirmative directions
for an executive officer constitutes legislation and is not in
order on a general appropriation bill. Also a ruling of Chairman
Towner, April 15, 1920.
``Chairman Crisp, March 11, 1916: Limitations must not impose
new duties upon an executive officer.
``No. 3984. Where a proposition might be construed by the
executive officer as a modification of a statute, it may not be
held as such a limitation of appropriation as is permissible on a
general appropriation bill.
``No. 3927. A limitation may be attached only to the money of
the appropriation under consideration and may not be made
applicable to moneys appropriated in other acts.
``No. 3957. The limitation must be upon the appropriation and
not an affirmative limitation of official functions.
``No. 3966. Limitations which directly, or indirectly, vest in
any executive officer any discretion, or impose any duty upon the
officer, directly or indirectly, in the expenditure of money, would
be obnoxious. But (No. 3968) the House may provide that no part of
an appropriation shall be used in a certain way even though
executive discretion be thereby negatively restricted.
``No. 3936. A provision proposing to construe existing law is
in itself a proposition of legislation and, therefore, not in order
on an appropriation bill as a limitation.
``No. 3936. The fact that a paragraph on an appropriation bill
would constitute legislation for only a year does not make it
admissible as a limitation.
``No. 3936. 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.
``No. 3929. A limitation must apply solely to the present
appropriation and may not be made as a permanent provision of law.
``No. 3942. While it is not in order to legislate as to
qualifications of the recipients of an appropriation, the House may
specify that no part of the appropriation shall go to recipients
lacking certain qualifications.''
In section 3935 of Hinds' Precedents is a ruling by Speaker
Cannon, which has been referred to and which the Chair feels covers
the point under consideration. The language is clear and specific,
and in view of Mr. Cannon's approaching retirement from Congress
after a long and distinguished career, the Chair is glad to refer
to it in this instance:
``The merits of the proposition are not involved in the point
of order. What is the object of the motion and of the instruction?
If it does not change existing law, then it is not necessary. If it
does change existing law, then it is subject to the point of order.
Much has been said about limitation; and the doctrine of limitation
is sustained upon
[[Page 6273]]
the proposition under the rule that, as Congress has the power to
withhold every appropriation, it may withhold the appropriation
upon limitation. Now, that is correct. But there is another rule,
another phase of that question. If the limitation, whether it be
affirmative or negative, operates to change the law or to enact new
law in effect, then it is subject to the rule that prohibits
legislation upon a general appropriation bill; and the Chair, in
view of the fact that the amendment would impose upon officials new
duties as to purchasing canal supplies, has no difficulty in
arriving at the conclusion that the instructions are subject to the
point of order for the reasons stated.''
In viewing propositions of a legislative character the Chair
feels we should look to the substance and not to the form in which
it is presented. In the case before us what does the proviso
propose? Does it impose a simple restriction on the expenditure of
funds? No. Does it stipulate that the use of the funds is
conditional upon the possession by the recipients of certain
qualifications or distinctions? No. It goes much further, for by
the use of the words ``until'' and ``unless,'' in connection with
certain things to be done, it implies--yes, asserts--that these
activities must be undertaken before the appropriation becomes
available. This is a direction to officers and imposes new duties
upon them which is repugnant to our practice. By requiring the
court to perform functions which are not now required, it clearly
implies a change of law, otherwise it would be futile to suggest
it. This is legislation under the guise of a limitation which is
contrary to our procedure.
As a general proposition the Chair feels that whenever a
limitation is accompanied by the words ``unless,'' ``except,''
``until,'' ``if,'' ``however,'' there is ground to view the so-
called limitation with suspicion, and in case of doubt as to its
ultimate effect the doubt should be resolved on the conservative
side. By doing so appropriation bills will be relieved of much of
the legislation which is being constantly grafted upon them and a
check given a practice which seems to the Chair both unwise and in
violation of the spirit, as well as the substance, of our rules.
Without endeavoring to lay down any hard and fast rule, the Chair
feels that the following tests may be helpful in deciding a
question of order directed against a limitation, first having
determined the powers granted or the duties imposed by existing
laws:
Does the limitation apply solely to the appropriation under
consideration?
Does it operate beyond the fiscal year for which the
appropriation is made?
Is the limitation accompanied or coupled with a phrase applying
to official functions, and if so, does the phrase give affirmative
directions in fact or in effect, although not in form?
Is it 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.
If the limitation will not fairly stand these tests then in my
opinion the point of order should be sustained.
[[Page 6274]]
The following sections contain illustrations of limitations
deemed by the Chair to be permissible under the rule.
The rule prohibiting unauthorized appropriations and legislation on
general appropriation bills, and the broad qualifications on the
application of the rule, are discussed in more detail at the beginning
of the chapter.(13)
---------------------------------------------------------------------------
13. See Sec. 1, supra. -------------------
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General Rule
Sec. 64.1 An amendment prohibiting the use of funds in a general
appropriation bill for a certain purpose is in order, although the
availability of funds for that purpose is authorized by law.
On June 22, 1973,(14) uring consideration in the
Committee of the Whole of a general appropriation bill (H.R. 8825), a
point of order was raised against the following amendment:
---------------------------------------------------------------------------
14. 119 Cong. Rec. 20998, 20999, 93d Cong. 1st Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
Amendment offered by Ms. [Bella S.] Abzug [of New York]:
Page 9, lines 2 and 3, strike out ``$2,194,000,000, to remain
available until expended.'' and insert in lieu thereof
``$1,719,000,000, to remain available until expended: Provided,
That none of the funds appropriated in this Act shall be used
to further in any way the research, development or construction
of any reusable space transportation system or space shuttle or
facilities therefor.''
And on page 10, lines 2 through 19, strike out all of
subparagraph (12) and redesignate the succeeding subparagraphs
accordingly.
Mr. [Burt L.] Talcott [of California]: Mr. Chairman, I reserve
a point of order against the amendment. . . .
The Chairman: (15) The Chair will hear the gentleman
from California.
---------------------------------------------------------------------------
15. James G. O'Hara (Mich.).
---------------------------------------------------------------------------
Mr. Talcott: Mr. Chairman, my point of order is quick and
clean. This is more than just a reduction of funds. It is
legislation on an appropriation bill when it says:
none of the funds appropriated in this act shall be used to
further in any way the research, development or construction of
any reusable space transportation system or space shuttle or
facilities therefor.
This is completely changing the authorization by the Committee
on Science and Astronautics.
The Chairman: The Chair is prepared to rule on the point of
order.
It seems to the Chair that the provision in the gentlewoman's
amendment is pretty clearly a limitation on an appropriation. It
does not impose any affirmative obligation on the administration,
nor does it provide any legislative direction. It is simply a
limitation on the use of the funds to be appropriated.
The Chair therefore overrules the point of order.
Sec. 64.2 An amendment denying use of funds for purposes otherwise
authorized by law may be in order as a limitation.
[[Page 6275]]
On May 19, 1964,(16) during consideration in the
Committee of the Whole of the Department of Agriculture appropriation
bill for fiscal 1965 (H.R. 11202), a point of order was raised against
the following amendment:
---------------------------------------------------------------------------
16. 110 Cong. Rec. 11391, 11392, 88th Cong. 2d Sess.
---------------------------------------------------------------------------
Mr. [Paul] Findley [of Illinois]: Mr. Chairman, I offer an
amendment.
The Clerk read as follows:
Amendment offered by Mr. Findley: On page 14, line 12,
after the figure ``$39,389,000'' strike the period, insert a
colon and the following: ``Provided, That no part of the funds
appropriated by this Act shall be used for any expenses
incident to the assembly or preparation of information for
transmission over Government-leased wires directly serving
privately-owned radio or television stations or newspapers of
general circulation, or for transmission over Government-leased
wires which are subject to direct interconnection with wires
leased by nongovernmental persons, firms or associations.''. .
.
The Chairman: (17) The gentleman from Mississippi
will state his point of order.
---------------------------------------------------------------------------
17. Eugene J. Keogh (N.Y.).
---------------------------------------------------------------------------
Mr. [Jamie L.] Whitten [of Mississippi]: The law requires, in
subsection k of section 1622 of the Agricultural Marketing Act of
1946, 7 U.S.C. 1621-27, as follows:
To collect, tabulate, and disseminate statistics of
marketing agricultural products, including, but not restricted
to statistics on market supplies, storage stocks, quantity,
quality, and condition of such products in various positions in
the marketing channel, utilization of such products, and
shipments and unloads thereof.
That statute is absolutely mandatory and requires the
Department to bring together that information. The gentleman's
amendment does not limit funds for the discharge of the duties
under that section. It attempts to deprive the Secretary of
authority conferred by law which was determined in an earlier
ruling (IV, 3846) to be legislation. Further, I respectfully submit
it will require additional duties of folks in the Department of
Agriculture, which is also legislation.
May I point out again, Mr. Chairman, in the last part of it, it
says the information cannot be collected for the purpose of being
disseminated. I respectfully submit it is legislation on an
appropriation bill calling for new duties and responsibilities on
the one hand, and limiting executive authority on the other. . . .
The Chairman: . . . The Chairman would call the attention of
the Committee to the fact that the existence of substantive law and
the provisions thereof are quite obviously not necessarily binding
on the Appropriations Committee. The Chair feels, therefore, that
where that committee seeks to appropriate funds and an amendment is
offered that seeks to deny the use of those funds even for
functions otherwise required by law, that that amendment is in the
nature of a limitation of appropriations and therefore overrules
the point of order.
Must Apply Only to Funds in Bill
Sec. 64.3 To qualify as a limitation, restrictive language in
[[Page 6276]]
a general appropriation bill must apply solely to the funds carried
in the bill and not to all funds which might otherwise be available
for that purpose.
On Apr. 26, 1972,(18) during consideration in the
Committee of the Whole of a supplemental appropriation bill (H.R.
14582), a point of order was raised against the following provision of
the bill:
---------------------------------------------------------------------------
18. 118 Cong. Rec. 14456, 14457, 92d Cong. 2d Sess.
---------------------------------------------------------------------------
Federal Home Loan Bank Board
Increases of $177,000 in the limitation on the amount
available for administrative expenses and of $351,000 in the
limitation on the amount available for nonadministrative
expenses: Provided, That none of the funds available for
administrative or nonadministrative expenses of the Federal
Home Loan Bank Board shall be used to finance the relocation of
all or any part of the Federal Home Loan Bank from Greensboro,
North Carolina, nor for the supervision, direction or operation
of any district bank for the fourth district other than at such
location;
Mr. (John J.) Flynt (Jr., of Georgia): Mr. Chairman, I make a
point of order against the language in the bill beginning after the
colon on line 25 of page 42, and which continues through line 6 on
page 43, which reads as follows:
``Provided--''
And so forth, down through ``at such location.''
I make the point of order on the ground that the language goes
beyond the scope of the time frame covered by this appropriation
bill, by the pending legislation. . . .
The Chairman: (19) The gentleman from Texas (Mr.
Mahon) is recognized.
---------------------------------------------------------------------------
19. Jack B. Brooks (Tex.).
---------------------------------------------------------------------------
Mr. [George H.] Mahon: Mr. Chairman, under the government
corporation control law, we are entitled to enact an annual budget
involving the handling of corporate funds. That is what this goes
to, and it is a limit on those funds.
It would appear to be clearly in order. So I trust, Mr.
Chairman, that the point of order will not be sustained.
Mr. [Edward P.] Boland [of Massachusetts]: Mr. Chairman, may I
be heard on the point of order?
The Chairman: The gentleman from Massachusetts is recognized.
Mr. Boland: Mr. Chairman, I am reading from page 8455, United
States Code, under title 31.
Paragraph 849 reads as follows:
Sec. 849. Consideration of programs by Congress; enactment
of necessary legislation; effect of section on certain existing
authority of corporations.
The Budget programs transmitted by the President to the
Congress shall be considered and legislation shall be enacted
making necessary appropriations as may be authorized by law,
making available for expenditure for operating and
administrative expenses such corporate funds or other financial
resources or limiting the use thereof as the Congress may
determine. . . .
Mr. Chairman, that is precisely what the language of the bill
does. It limits the funds of the corporation, and it is
[[Page 6277]]
my contention that the point of order is out of order.
The Chairman: The Chair is prepared to rule.
The gentleman from Georgia (Mr. Flynt) makes a point of order
against the language in the bill on page 42, line 25 to page 43,
line 6.
The proviso in this paragraph goes to all of the expense funds
that might be available to the Federal Home Loan Bank Board. It
does not merely restrict the funds in this bill.
The Chair finds the restriction is not limited to funds in the
bill and must be construed as legislation.
The Chair therefore sustains the point of order made by the
gentleman from Georgia (Mr. Flynt).
Sec. 64.4 To qualify as a ``limitation,'' the restrictive language must
apply to the appropriations carried in the bill and not to all
funds which may have been provided under the authorizing
legislation or to the provisions of the authorization itself.
On June 4, 1970,(20) during consideration in the
Committee of the Whole of the foreign assistance appropriation bill for
fiscal 1971 (H.R. 17867), a point of order was raised against the
following provision of the bill:
---------------------------------------------------------------------------
20. 116 Cong. Rec. 18404, 18405, 91st Cong. 2d Sess.
---------------------------------------------------------------------------
(b) No economic assistance shall be furnished under the Foreign
Assistance Act of 1961, as amended, to any country which sells,
furnishes, or permits any ships under its registry to carry items
of economic assistance to Cuba, so long as it is governed by the
Castro regime, or to North Vietnam.
Mr. [Peter H. B.] Frelinghuysen [of New Jersey]: Mr. Chairman,
I make a point of order that the language on lines 13 through 17,
page 9, section 107(b) constitutes legislation on an appropriation
bill and therefore should be stricken.
I should like to point out, also, there is comparable language,
but stronger language, already in the Foreign Assistance Act. I
refer to section 620(a)(3) with respect to the prohibition against
trade with Cuba, and section 620(n), the language with respect to
North Vietnam.
The Chairman: (1) Does the gentleman from Louisiana
desire to be heard on the point of order?
---------------------------------------------------------------------------
1. Hale Boggs (La.).
---------------------------------------------------------------------------
Mr. [Otto E.] Passman [of Louisiana]: Mr. Chairman, the
committee believes now, as we have believed for many years, that
this was a limitation on expenditures. It says:
No economic assistance--
Referring first to U.S. dollars--
shall be furnished under the Foreign Assistance Act of 1961, as
amended, to any country which sells, furnishes, or permits any
ships under its registry to carry items of economic assistance
to Cuba, so long as it is governed by the Castro regime, or to
North Vietnam.
According to the committee's interpretation, this is a
limitation, and I ask for a ruling.
[[Page 6278]]
The Chairman: The Chair is prepared to rule.
The first two lines read:
No economic assistance shall be furnished under the Foreign
Assistance Act of 1961--
It is entirely possible that there is a variety of programs
under the Foreign Assistance Act of 1961. Therefore, this is
clearly a limitation upon the Act and not on the bill and comes
within the prohibition of rule XXI, clause 2, and the point of
order is sustained.
Sec. 64.5 A limitation to be in order must relate specifically to the
appropriation to which it is offered and not contain language so
broad as to cover other appropriations.
On Mar. 28, 1939,(2) the Committee of the Whole was
considering H.R. 5269, an Agriculture Department appropriation bill.
The Clerk read as follows:
---------------------------------------------------------------------------
2. 84 Cong. Rec. 3446, 76th Cong. 1st Sess.
---------------------------------------------------------------------------
Amendment offered by Mr. [Edward H.] Rees of Kansas to the
amendment offered by Mr. Cannon of Missouri: At the end of Mr.
Cannon's amendment add the following: ``Provided, That total
payments to any person, firm, or corporation under soil
conservation and parity payments shall not exceed $2,500.''
Mr. [Clarence] Cannon of Missouri: Mr. Chairman, I make the
point of order against the amendment that it is legislation on an
appropriation bill.
The Chairman: (3) Does the gentleman from Kansas
desire to be heard on the point of order?
---------------------------------------------------------------------------
3. Wright Patman (Tex.).
---------------------------------------------------------------------------
Mr. Rees of Kansas: No, I do not believe I do, Mr. Chairman,
although I do not believe it is legislation.
Mr. [John] Taber [of New York]: Mr. Chairman, this is a pure
limitation, as I understand it, limiting the amount that can be
paid out under the bill to any one person and therefore is clearly
in order.
The Chairman: The Chair is of the opinion that the amendment is
entirely too broad in that it would not only include this
appropriation but other appropriations as well and the point of
order is therefore sustained.
Restricting Funds for Purpose Not Funded in Bill
Sec. 64.6 To a bill appropriating funds for defense procurement, an
amendment providing that none of the funds therein shall be
available for paying the cost of a conventional powerplant for a
designated ship was held to be a proper limitation and in order
even though it was apparent that there were no funds in the bill
for the ship in question.
On Apr. 22, 1964,(4) the Committee of the Whole was
considering H.R. 10939, a Department of
[[Page 6279]]
Defense appropriation bill. The Clerk read as follows, and proceedings
ensued as indicated below:
---------------------------------------------------------------------------
4. 110 Cong. Rec. 8802, 88th Cong. 2d Sess.
---------------------------------------------------------------------------
Amendment offered by Mr. [Craig] Hosmer [of California]: On
page 42, line 18, after line 18 insert a new section 540--and
renumber the following sections--to read as follows:
``None of the funds appropriated herein shall be available for
paying the cost of a conventional powerplant for CVA-67.''
Mr. [George H.] Mahon [of Texas]: Mr. Chairman, I make the
point of order that there are no funds in this bill for an aircraft
carrier.
The Chairman: (5) Does the gentleman desire to be
heard on the point of order?
---------------------------------------------------------------------------
5. Eugene J. Keogh (N.Y.).
---------------------------------------------------------------------------
Mr. Hosmer: Yes, I do.
The Chairman: The Chair will be pleased to hear him.
Mr. Hosmer: My point is, it is irrelevant whether or not there
are any funds in this bill. An amendment of this nature will lie
irrespective.
The Chairman: The Chair is ready to rule. . . .
. . . Apparently the only basis for that point of order is that
there are no funds in the pending bill to accomplish that which is
sought to be accomplished by the amendment. As futile, therefore,
as the amendment might be, it is in fact a limitation of the funds
herein appropriated and the Chair therefore overrules the point of
order.
Sec. 64.7 To a section of the legislative branch appropriation bill
making appropriations for the Government Printing Office, an
amendment providing that no part of the appropriation shall be used
to pay the salary of any person who shall perform any service or
authorize any expenditure in connection with the printing and
binding of the Yearbook of Agriculture was held as a valid
limitation and in order.
On Mar. 18, 1942,(6) the Committee of the Whole was
considering H.R. 6802. The Clerk read as follows:
---------------------------------------------------------------------------
6. 88 Cong. Rec. 2681, 77th Cong. 2d Sess.
---------------------------------------------------------------------------
Amendment offered by Mr. [Everett M.] Dirksen [of Illinois]: On
page 45, line 3, after ``1942'', insert ``Provided further, That no
part of this appropriation shall be used to pay the salary of any
person who shall perform any service or authorize any expenditure
in connection with the printing and binding of part 2 of the annual
report of the Secretary of Agriculture (known as the Year Book of
Agriculture) for 1942.''
Mr. [Malcolm C.] Tarver [of Georgia]: Mr. Chairman, I make a
point of order against the amendment. There are no funds carried in
this bill for the purposes which are inhibited by the gentleman's
amendment. It would be nugatory and of no effect, and I can
conceive of no rule under which it might be in order.
[[Page 6280]]
Mr. Dirksen: I think the amendment will speak for itself. I
think it is a limitation and would be germane and in order,
irrespective of whether any funds are carried, but the fact of the
matter is that the yearbook is not printed ordinarily until after
the first of the year. Consequently the personnel and salaries for
clerical work and mechanical work in the Government Printing Office
is done after the beginning of the fiscal year 1943. I therefore
regard it as a proper limitation and in order. . . .
The Chairman: (7) The Chair thinks that the
limitation is a valid one, and, therefore, the point of order is
overruled.
---------------------------------------------------------------------------
7. William R. Thom (Ohio).
---------------------------------------------------------------------------
Sec. 64.8 To a section of a supplemental appropriation bill making
appropriations for the Air Force, an amendment providing that none
of the funds appropriated therein shall be used in the branches of
the Department of the Air Force in which there exists racial
segregation was held germane and a proper limitation.
On Apr. 15, 1948,(8) the Committee of the Whole was
considering H.R. 6226, a supplemental appropriation bill. The Clerk
read as follows, and proceedings ensued as indicated below:
---------------------------------------------------------------------------
8. 94 Cong. Rec. 4543, 89th Cong. 2d Sess.
---------------------------------------------------------------------------
Amendment offered by Mr. [Adam C.] Powell [Jr., of New York]:
On page 2, line 25, insert ``Provided further, That none of the
funds herein appropriated shall be used in the branches of the
Department of the Air Force in which there exists racial
segregation.''
Mr. [John E.] Rankin [of Mississippi]: Mr. Chairman, a point of
order.
The Chairman: (9) The gentleman will state it.
---------------------------------------------------------------------------
9. James G. O'Hara (Mich.).
---------------------------------------------------------------------------
Mr. Rankin: Mr. Chairman, I make the point of order that this
amendment is not germane and it is, therefore, not in order on this
bill; that it is legislation on an appropriation bill; that imposes
additional burdens and restrictions that are entirely out of place.
This is an aircraft procurement bill. This is not a labor bill.
I submit that the amendment is out of order from practically every
standpoint.
The Chairman: Does the gentleman from New York desire to be
heard on the point of order?
Mr. Powell: Yes, Mr. Chairman. This is an amendment which has
limitations; it is negative; it is the type that has been ruled in
order on previous appropriation bills.
The Chairman: The Chair is ready to rule. The gentleman from
New York has offered an amendment against which the gentleman from
Mississippi has made a point of order. The Chair is constrained to
rule that the amendment is germane and is in order and consequently
overrules the point of order.
Committee Report as Containing Limitations
Sec. 64.9 The Chair does not pass on the question as to wheth
[[Page 6281]]
er ``limitations'' written in a committee report on an
appropriation bill but not written into the wording of the bill are
binding; that is a matter for the Committee of the Whole to
consider during its deliberation on the bill.
On Apr. 14, 1955,(10) the Committee of the Whole was
considering H.R. 5502, a bill making appropriations for the Departments
of State, Justice, the Judiciary, and related agencies. The following
occurred:
---------------------------------------------------------------------------
10. 101 Cong. Rec. 4463, 4464, 84th Cong. 1st Sess.
---------------------------------------------------------------------------
Mr. [Robert C.] Wilson of California: I have a question
relative to the United States Information Agency as it affects the
report of the committee. As printed I notice there are several
limitations written into the report. For instance, not to exceed
$300,000 is provided for the ``presentation'' program; not to
exceed $200,000 is provided for exhibits for which $334,000 was
requested, and other limitations of that type.
I am wondering if the fact that these limitations appear in the
report make them actual limitations in law. I notice they are not
mentioned in the bill itself, and I wonder if the committee regards
them as binding on the agency, because there are many serious
limitations, particularly in regard to exhibits, for example. I
would just like to hear the opinion of the chairman.
Mr. [John J.] Rooney [of New York]: I may say to the gentleman
from California that it is expected that they will be the law; and
that they are binding. The fact that they have not been inserted in
the bill is not important. They represent the considered judgment
of the committee and we expect the language of the report to be
followed.
Mr. Wilson of California: Mr. Chairman, a parliamentary
inquiry.
The Chairman: (11) The gentleman will state it.
---------------------------------------------------------------------------
11. Jere Cooper [Tenn.].
---------------------------------------------------------------------------
Mr. Wilson of California: Are limitations written in a
committee report such as this, but not written into the wording of
the legislation, binding?
The Chairman: That is not a parliamentary inquiry. That is a
matter to be settled by the members of the Committee of the Whole.
Mr. Wilson of California: I merely wanted it for my own
understanding and information, for I am fairly new here. It seems
to me rather unusual to consider matter written into a report of
the same binding effect on an administrator as though written into
the law itself.
The Chairman: It is not the prerogative of the Chair to pass
upon the sufficiency or insufficiency of a committee report.
Condition Subsequent--Obligation Terminated on Occurrence of Future
Event
Sec. 64.10 An amendment to an appropriation bill, terminating the use
of funds therein after the passage of
[[Page 6282]]
certain legislation pending before the Congress, is a valid
limitation and in order.
On May 19, 1964,(12) during consideration in the
Committee of the Whole of the Department of Agriculture appropriation
bill (H.R. 11202), a point of order was raised against the following
amendment:
---------------------------------------------------------------------------
12. 110 Cong. Rec. 11388, 11389, 88th Cong. 2d Sess.
---------------------------------------------------------------------------
Mr. [Paul] Findley [of Illinois]: Mr. Chairman, I offer an
amendment.
The Clerk read as follows:
Amendment offered by Mr. Findley: On page 12, line 24,
after the word ``consumer'' change the colon to a comma and
insert the following: ``except that no part of the funds
appropriated herein may be obligated for this special study
subsequent to the enactment of legislation establishing a
National Commission on Food Marketing:''.
Mr. [Jamie L.] Whitten [of Mississippi]: Mr. Chairman, I
reserve a point of order. . . .
The Chairman: (13) The gentleman from Mississippi
will state his point of order.
---------------------------------------------------------------------------
13. Eugene J. Keogh (N.Y.).
---------------------------------------------------------------------------
Mr. Whitten: The language provides:
Except that no part of the funds appropriated herein may be
obligated for this special study subsequent to the enactment of
legislation establishing a national commission.
The point of order I make is that this is not a limitation on
an appropriation bill as such but is entirely dependent on a
contingency that may never occur. For that reason the point of
order should be sustained.
The Chairman: Does the gentleman from Illinois desire to be
heard on the point of order?
Mr. Findley: Yes. My amendment shows retrenchment on the face
of it, and in my opinion is within the rules.
The Chairman: The Chair is ready to rule.
The gentleman from Illinois offers an amendment, which has been
fully reported, and provides that no part of the funds appropriated
in the pending section may be obligated for the special study
provided therein subsequent to the enactment of legislation
establishing a National Commission on Food Marketing, to which
amendment the gentleman from Mississippi made his point of order
that it was, in effect, legislation on an appropriation bill. The
Chair, however, is of the opinion that this amendment constitutes a
limitation on the funds herein appropriated even though that
limitation may be conditioned upon a condition subsequent which may
never come into existence and, therefore, overrules the point of
order.
Obligation Triggered by Future Event
Sec. 64.11 To a bill appropriating funds for NASA [which had, under its
authorizing legislation, authority to use appropriations for
capital expenditures providing that the Committee on Science and
Astronautics of the House
[[Page 6283]]
was notified of the proposed expenditure], an amendment specifying
that no funds therein appropriated could be used for capital items
until 14 days after the notification required by law, was held to
be a limitation upon the expenditure of funds and in order.
On June 29, 1959,(14) during consideration in the
Committee of the Whole of a supplemental appropriation bill (H.R.
7978), a point of order was raised against the following amendment:
---------------------------------------------------------------------------
14. 105 Cong. Rec. 12125, 12126, 86th Cong. 1st Sess.
---------------------------------------------------------------------------
Mr. [Albert] Thomas [of Texas]: Mr. Chairman, I offer an
amendment.
The Clerk read as follows:
Amendment offered by Mr. Thomas: On page 4, line 16, after
``expended'' insert: ``Provided, That no part of the foregoing
appropriation shall be available for other items of a capital
nature which exceed $250,000 until 14 days have elapsed after
notification as required by law to the Committee on Science and
Astronautics of the House of Representatives and the Committee
on Aeronautical and Space Sciences of the Senate.''
Mr. [John] Taber [of New York]: Mr. Chairman, a point of order.
The Chairman: (15) The gentleman will state it.
---------------------------------------------------------------------------
15. Paul J. Kilday (Tex.).
---------------------------------------------------------------------------
Mr. Taber: Mr. Chairman, I make the point of order against the
amendment on the ground that it changes existing law and requires
additional duties on the part of the Space Agency. . . .
The Chairman: The Chair is prepared to rule.
The gentleman from Texas [Mr. Thomas] has offered an amendment
which has been reported. The gentleman from New York [Mr. Taber]
has made a point of order that it is legislation on an
appropriation bill.
The Chair calls attention to that portion of subsection (b) of
Public Law 86-45 approved June 15, 1959, with reference to
expenditures in excess of $250,000 and notice to the legislative
committees. In addition thereto, the amendment contains a period of
notice of 14 days. However, this does not impose a new duty,
because it is a limitation upon the expenditure of the funds within
a period of 14 days.
The Chair therefore overrules the point of order.
Exception From Limitation Carried in Same Bill
Sec. 64.12 Where an appropriation bill carried a provision limiting
certain administrative expenses in various accounts therein, a
paragraph subsequently reached in the reading was held in order
where it carried a provision excepting an authorized appropriation
project from those limitations.
On May 17, 1937,(16) the Committee of the Whole was
consid
[[Page 6284]]
ering H.R. 6958, an Interior Department appropriation bill. The Clerk
read as follows, and proceedings ensued as indicated below:
---------------------------------------------------------------------------
16. 81 Cong. Rec. 4685, 4686, 75th Cong. 1st Sess.
See 83 Cong. Rec. 2707, 75th Cong. 3d Sess., Mar. 2, 1938,
for a similar ruling.
---------------------------------------------------------------------------
Boulder Canyon project: For the continuation of construction of
the Boulder Canyon Dam and incidental works in the main stream of
the Colorado River at Black Canyon, to create a storage reservoir,
and of a complete plant and incidental structures suitable for the
fullest economic development of electrical energy from the water
discharged from such reservoir $2,550,000, to be immediately
available and there shall also be available from power and other
revenues not to exceed $500,000 for operation and maintenance of
the Boulder Canyon Dam, power plant, and other facilities; which
amounts of $2,550,000 and $500,000 shall be available for personal
services in the District of Columbia . . . and for all other
objects of expenditure that are specified for projects hereinbefore
included in this act, under the caption ``Bureau of Reclamation,
Administrative provisions and limitations'', without regard to the
amounts of the limitations therein set forth.
Mr. [Richard B.] Wigglesworth [of Massachusetts]: Mr. Chairman,
I reserve a point of order for the purpose of asking the chairman
of the subcommittee the effect of the language in lines 19 and 20
of the paragraph under consideration, ``without regard to the
amounts of the limitations therein set forth.'' . . .
Mr. [James G.] Scrugham [of Nevada]: Mr. Chairman, the
paragraph applies to limitations on appropriations, and I hold it
to be clearly in order.
The Chairman: (17) The Chair is prepared to rule.
---------------------------------------------------------------------------
17. Jere Cooper (Tenn.).
---------------------------------------------------------------------------
The gentleman from Massachusetts makes the point of order
against the language appearing in lines 19 and 20.
There is no point made here that the provisions referred to are
not covered by authorization of law. It is apparent from examining
this provision, and referring back to the provisions contained on
page 68, that the purpose here is to remove certain limitations
imposed by the language on page 68 under the heading
``Administrative provisions and limitations.'' Therefore the Chair
is of the opinion that this language is not subject to a point of
order and overrules the point of order.
Exceptions From Limitations
Sec. 64.13 To an amendment prohibiting the expenditure of any
government funds during fiscal 1971 for American ground forces in
Cambodia, offered to a legislative provision in a general
appropriation bill prescribing an overall limitation on budget
outlays for that fiscal year, an amendment excepting from such
prohibition those expenditures which protect the lives of American
troops re
[[Page 6285]]
maining within South Vietnam was held in order as a germane
exception to the prohibition merely descriptive of a Presidential
duty as Commander in Chief to protect U.S. troops, and as not
adding legislation to the provision permitted to remain in the
bill.
On May 7, 1970,(18) the Committee of the Whole was
considering H.R. 17399, a supplemental appropriation bill. A point of
order against an amendment to an amendment was overruled as indicated
below:
---------------------------------------------------------------------------
18. 116 Cong. Rec. 14569-71, 91st Cong. 2d Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
Title V
Limitation on Fiscal Year 1971 Budget Outlays
Sec. 501. (a) Expenditures and net lending (budget outlays)
of the Federal Government during the fiscal year ending June
30, 1971, shall not exceed $200,771,000,000: Provided, That
whenever action, or inaction, by the Congress on requests for
appropriations and other budgetary proposals varies from the
President's recommendations reflected in the Budget for 1971
(H. Doc. 91-240, part 1), the Director of the Bureau of the
Budget shall report to the President and to the Congress his
estimate of the effect of such action or inaction on budget
outlays, and the limitation set forth herein shall be
correspondingly adjusted: Provided further, That the Director
of the Bureau of the Budget shall report to the President and
to the Congress his estimate of the effect on budget outlays of
other actions by the Congress (whether initiated by the
President or the Congress) and the limitation set forth herein
shall be correspondingly adjusted, and reports, so far as
practicable, shall indicate whether such other actions were
initiated by the President or by the Congress.
Mr. [Edward P.] Boland [of Massachusetts]: Mr. Chairman I offer
an amendment.
The Clerk read as follows:
Amendment offered by Mr. Boland: On page 53 on line 25
after the amount [$200,771,000,000], insert the following: ``,
of which expenditures none shall be available for use for
American ground combat forces in Cambodia.''. . .
Mr. [Paul] Findley [of Illinois]: Mr. Chairman, I offer an
amendment to the amendment offered by the gentleman from
Massachusetts (Mr. Boland).
The Clerk read as follows:
Amendment offered by Mr. Findley to the amendment offered
by Mr. Boland: In front of the period insert the following:
``except those which protect the lives of American troops
remaining within South Vietnam.''
Mr. [George H.] Mahon [of Texas]: Mr. Chairman, I make a point
of order against the amendment. . . .
I make a point of order on the ground that the amendment
requires particular and special duties. . . .
Mr. [Sidney R.] Yates [of Illinois]: Mr. Chairman, I make the
further point of order that it is legislation on an appropriation
bill.
The Chairman: (19) The Chair has examined the
proposed amendment to
[[Page 6286]]
the amendment. In the opinion of the Chair the proposed amendment
to the amendment constitutes an exception to the limitation that
was offered by the gentleman from Massachusetts, does not
constitute additional legislation, and is germane. Therefore the
Chair overrules the point of order.
---------------------------------------------------------------------------
19. James G. O'Hara (Mich.).
---------------------------------------------------------------------------
During ensuing debate, Mr. Findley stated:
Mr. Chairman, I would hope that no Member of this body would
wish to leave the impression, by supporting any amendment today,
that subsequent to July 1 he would wish the President of the United
States as Commander in Chief to fail to do what he feels is
necessary to protect the lives of American troops remaining in
South Vietnam.
That is why I propose this amendment.
Sec. 64.14 An exception to a valid limitation in a general
appropriation bill is in order, providing the exception does not
add language legislative in effect. Thus, an amendment inserting
``Except as required by the Constitution'' in provisions in a
general appropriation bill prohibiting the use of funds therein to
force a school district to take action involving the busing of
students, was held in order as providing an exception from valid
limitations in the bill.
On Feb. 19, 1970,(20) during consideration in the
Committee of the Whole of the Departments of Labor, and Health,
Education, and Welfare appropriation bill for fiscal 1970 (H.R. 15931),
a point of order was raised against the following amendments:
---------------------------------------------------------------------------
20. 116 Cong. Rec. 4019, 91st Cong. 2d Sess.
---------------------------------------------------------------------------
Mr. [Jeffery] Cohelan [of California]: Mr. Chairman, I offer an
amendment.
The Clerk read as follows:
Amendment offered by Mr. Cohelan: On page 60, strike out
line 19 and all that follows through line 25, and substitute in
lieu thereof the following:
``Sec. 408. Except as required by the Constitution no part
of the funds contained in the Act may be used to force any
school district to take any actions involving the busing of
students, the abolishment of any school or the assignment of
any student attending any elementary or secondary school to a
particular school against the choice of his or her parent or
parents.''
Mr. Cohelan: Mr. Chairman, I ask unanimous consent that my
amendments on sections 408 and 409 be considered en bloc.
The Chairman: (1) The Clerk will report the
amendment to section 409.
---------------------------------------------------------------------------
1. Chet Holifield (Calif.).
---------------------------------------------------------------------------
The Clerk read as follows:
Amendment offered by Mr. Cohelan: On page 61, strike out
line 1 and all that follows through line 6 and substitute in
lieu thereof the following:
``Sec. 409. Except as required by the Constitution no part
of the funds
[[Page 6287]]
contained in this Act shall be used to force any school
district to take any actions involving the busing of students,
the abolishment of any school or the assignment of students to
a particular school as a condition precedent to obtaining
Federal funds otherwise available to any State, school district
or school.''
The Chairman: Is there objection to the request of the
gentleman from California (Mr. Cohelan) that the amendments be
considered en bloc?
There was no objection.
Mr. [Frank T.] Bow [of Ohio]: Mr. Chairman, I make a point of
order against the amendments.
The Chairman: The gentleman will state his point of order.
Mr. Bow: Mr. Chairman, the point of order is that the language
puts additional duties upon the Secretary of Health, Education, and
Welfare to make a determination of the constitutionality of the
provisions.
The Chairman: Does the gentleman from California (Mr. Cohelan)
desire to be heard on the point of order?
Mr. Cohelan: Mr. Chairman, obviously all that my amendments
will do is to restore the language of the original bill.
Prior to my presenting these amendments I checked with the
parliamentarian. It is my understanding that they are perfectly
proper amendments. I ask that they be considered so.
The Chairman: The Chair is ready to rule.
The gentleman from California (Mr. Cohelan) has offered
amendments en bloc to insert the provision ``Except as required by
the Constitution'' at the beginning of sections 408 and 409 of the
bill. The gentleman from Ohio (Mr. Bow) has raised a point of order
against the amendments on the ground that they constitute
legislation on an appropriation bill in violation of clause 2, rule
XXI.
The precedents of the House establish that it is in order in a
general appropriation bill to include, along with a valid
limitation, an exception therefrom. On April 27, 1950, a provision
limiting the use of an appropriation and specifying certain
exceptions to the limitation was held in order--Chairman Cooper,
Tennessee, 81st Congress, Record, page 5910.
For the reason stated the Chair overrules the point of order.
Sec. 64.15 An exception from a valid limitation may be included in an
amendment to an appropriation bill so long as it does not contain
provisions which are legislative in effect; in an amendment
prohibiting the use of funds for food stamp assistance for
households that need such assistance solely because a member
therein is a member of a striking union, language stating that such
limitation shall not apply to a household eligible for general
assistance directly payable by a local government was held to
constitute a valid exception not imposing additional duties on
federal administrators.
[[Page 6288]]
On June 29, 1972,(2) during consideration in the
Committee of the Whole of a general appropriation bill (H.R. 15690), a
point of order was raised against the following amendment:
---------------------------------------------------------------------------
2. 118 Cong. Rec. 23378, 23379, 92d Cong. 2d Sess.
---------------------------------------------------------------------------
Mr. [Garry E.] Brown of Michigan: Mr. Chairman, I offer an
amendment.
The Clerk read as follows:
Amendment offered by Mr. Brown of Michigan: On page 43,
line 9, delete the period after the figure ``$2,341,146,000''
and insert the following: ``Provided that no part of the funds
appropriated by this Act shall be used during the fiscal year
ending June 30, 1973 to make food stamps available to a
household where the necessity and eligibility of such household
for assistance stems solely from the unemployment of a member
of such household who is a member of an employee unit which has
voluntarily terminated employment due to a labor dispute or
controversy, except that such limitation shall not apply to a
household eligible for general assistance directly payable by
such household's local union of government.''
Mr. [Jamie L.] Whitten [of Mississippi]: Mr. Chairman, I make a
point of order against the amendment. It is legislation on an
appropriation bill and, for all practical purposes, it is a
perfecting amendment and identical to the one we have already voted
on. . . .
The Chairman: (3) Does the gentleman from Michigan
desire to be heard on the point of order?
---------------------------------------------------------------------------
3. James C. Wright, Jr. (Tex.).
---------------------------------------------------------------------------
Mr. Brown of Michigan: I do, Mr. Chairman.
In the first place, it is not legislation on an appropriation
bill because it only further limits the thrust of the
appropriation, and establishes a further standard, that standard to
be applied for the eligibility, to be determined by the State and
local agencies, and under various appropriations to the food stamp
program, eligibility standards which are determined by these State
and local agencies.
Second, it is not the same amendment as the Michel amendment
because it is not an absolute prohibition on food stamps to
strikers, so called. It says that eligibility for food stamps shall
be based upon eligibility for general assistance, not the food
stamp program itself.
Mr. Whitten: Mr. Chairman, in view of the statement made by the
gentleman from Michigan, and having seen the amendment and having
read it and understood it, I state that it calls for new duties to
determine new regulations for eligibility, therefore it is
definitely legislation on an appropriation bill.
The Chairman: The Chair is ready to rule.
The Chair has carefully read the amendment.
In the first place, it is not identical to the amendment
previously offered, nor is it subject to the interpretation that it
would simply do exactly the same thing as the amendment previously
offered and rejected. It is clearly distinguishable in its
provisions.
As to the second question, that of its being rendered out of
order because it supposedly requires affirmative actions on the
part of an administrator, the Chair believes that the latter part
of
[[Page 6289]]
the amendment--to which the gentleman from Mississippi has
referred--simply provides an exception to the application of the
limitation imposed by the first part of the amendment. It does not
impose additional duties. The Chair holds that the amendment
offered by the gentleman from Michigan (Mr. Brown), is in order and
overrules the point of order.
Prohibiting Funds for Salaries for Carrying out Certain Programs
Sec. 64.16 An amendment to a general appropriation bill which is
negative in character and which prohibits the use of funds therein
for salaries of persons carrying out certain programs which extend
in duration beyond that fiscal year is in order as a limitation on
the funds in that bill.
On June 15, 1973,(4) during consideration in the
Committee of the Whole of a general appropriation bill (H.R. 8619), the
following occurred:
---------------------------------------------------------------------------
4. 119 Cong. Rec. 19836, 19837, 93d Cong. 1st Sess.
---------------------------------------------------------------------------
Mr. [Silvio O.] Conte [of Massachusetts]: Mr. Chairman, I offer
an amendment.
The Clerk read as follows:
Amendment offered by Mr. Conte: Page 3 after line 12,
insert the following: ``: Provided further, That none of the
funds appropriated by this Act shall be used during the fiscal
year ending June 30, 1974, to formulate or carry out any single
1974 crop year price support program (other than for sugar and
wool) under which the total amount of payments to any person or
State government would be more than $20,000''. . . .
Mr. [Paul] Findley [of Illinois]: Mr. Chairman, I offer a
substitute amendment for the amendment offered by the gentleman
from Massachusetts (Mr. Conte).
The Clerk read as follows:
Substitute amendment offered by Mr. Findley for the
amendment offered by Mr. Conte: None of the funds provided by
this Act shall be used to pay the salaries of personnel who
formulate or carry out:
(1) programs for the 1974 crop year under which the
aggregate payments for the wheat, feed grains and upland cotton
programs for price support, set-aside, diversion and resource
adjustment to one person exceed $20,000, or
(2) a program effective after December 31, 1973 which
sanctions the sale or lease of cotton acreage allotments.
Mr. [Jamie L.] Whitten [of Mississippi]: Mr. Chairman, I
reserve a point of order.
The Chairman: (5) The gentleman reserves a point of
order.
---------------------------------------------------------------------------
5. James C. Wright, Jr. (Tex.).
---------------------------------------------------------------------------
Mr. Whitten: Mr. Chairman, the Commodity Credit Corporation of
the Department of Agriculture has some $3 or $4 billion; it has
certain obligations and authority under its charter, and that money
they now have is not in this bill.
[[Page 6290]]
This amendment, if passed, would in no way affect the
Corporation. It has 3 or 4 billions of dollars which in turn it
already had with obligations under the charter under which it is
formulated.
The amendment at this point would not reach funds already
available with existing authority and under a charter.
The Chairman: Does the gentleman from Mississippi make a point
of order against the substitute?
Mr. Whitten: Yes, I will make the point of order at this point,
that if it be held that this goes to the action of a corporation
that presently has $3 to $4 billion, that presently has a charter
which directs it to carry out what is prohibited by this provision;
that if this amendment attempts to reach that corporation which has
a corporation charter, it is legislation on an appropriations bill
and, therefore, subject to a point of order. . . .
The Chairman: Does the gentleman from Illinois desire to be
heard?
Mr. Findley: Yes. . . .
The amendment which I have offered as a substitute to the Conte
amendment is a limitation of salaries of personnel. Personnel, of
course, includes the Secretary of Agriculture, all of his
lieutenants right down to the CCC level. Even if, as the gentleman
argues, the limitation could not apply to the salaries of CCC
personnel, which I do not concede, nevertheless this amendment
would be effective in establishing the limitation it seeks to
effect, because it would go to the salary of the Secretary. All of
the authority that is in the draft bill now before the Committee on
Agriculture dealing with continuing farm legislation goes to the
Secretary as a person.
This is a limitation on the expenditure of funds, a limitation
that goes to the expenditure of salaries, and therefore entirely
within the rules of the House as being germane. . . .
The Chairman: The Chair is prepared to rule.
The gentleman from Massachusetts (Mr. Conte) has offered an
amendment, for which the gentleman from Illinois (Mr. Findley) has
offered a substitute.
The gentleman from Mississippi has raised a point of order
against the substitute amendment offered by the gentleman from
Illinois on the ground that it constitutes legislation in an
appropriation bill.
The Chair has listened to the arguments and has carefully read
the text of the proposed substitute. The Chair notes that the
substitute would restrict funds provided by this act, providing
that none of such funds should be used to pay salaries of personnel
to carry out certain programs. As such, insofar as it applies to
the funds provided in this act, the substitute would be a
limitation on the appropriation bill and would not be legislation,
and is therefore in order.
The Chair would point out that nothing in such substitute could
act officially or affirmatively to inhibit payment of funds that
are not provided in this act. As the Chair reads the proposed
substitute, there is no language which would affect, limit, or
inhibit funds other than those provided in this act.
Therefore, the Chair overrules the point of order.
Limiting Funds ``In Any Fiscal Year''
Sec. 64.17 Where a limitation seeks to provide that ``funds
[[Page 6291]]
appropriated by this Act'' shall not be used ``in any fiscal year''
for a certain purpose, the addition of the phrase ``in any fiscal
year'' has no effect, because the measure can apply only to the
fiscal year for which funds are being appropriated; thus the phrase
does not destroy the character of the limitation.
On May 26, 1965,(6) during consideration of an
Agriculture Department appropriation bill (H.R. 8370), it was held that
an amendment, specifying that no part of the funds therein shall be
used ``in any fiscal year'' for farm program payments aggregating more
than $50,000 to any person or corporation, was a proper limitation. The
proceedings were as follows:
---------------------------------------------------------------------------
6. 111 Cong. Rec. 11660-62, 89th Cong. 1st Sess.
---------------------------------------------------------------------------
Sec. 506. Not less than $1,500,000 of the appropriations of the
Department for research and service work authorized by the Acts of
August 14, 1946, July 28, 1954, and September 6, 1958 (7 U.S.C.
427, 1621-1629; 42 U.S.C. 1891-1893), shall be available for
contracting in accordance with said Acts.
Mr. [John D.] Dingell [of Michigan]: Mr. Chairman, I offer an
amendment.
The Clerk read as follows:
Amendment offered by Mr. Dingell: Page 37, after line 2,
insert the following section:
``Sec. 507. No part of any funds appropriated by this Act
may, in any fiscal year, be used, directly or indirectly, to
make payments to any person, partnership, or corporation in an
aggregate amount in excess of $50,000 in connection with any
price-support program or combination of programs for price
support or stabilization, irrespective of whether such payments
are on account of loans, purchases, or subsidies or are
otherwise authorized.''. . .
[A point of order was made, as follows:]
Mr. [Jamie L.] Whitten [of Mississippi]: This amendment would
require the keeping of books, it would require substantive
additional duties on many people because many producers produce
many different crops. This would be legislation on an appropriation
bill.
The Chairman: (7) The gentleman from Michigan [Mr.
Dingell] offered an amendment to page 37, line 2, which is a new
section. . . .
---------------------------------------------------------------------------
7. Eugene J. Keogh (N.Y.).
---------------------------------------------------------------------------
To which amendment the gentleman from Mississippi makes the
point of order that it is legislation on an appropriation bill.
The Chair is of the opinion that since the amendment is
directed to funds appropriated by the pending act, the phrase ``in
any fiscal year'' is not applicable, nor in fact is it necessary.
But the Chair is further of the opinion that this is an express
limitation on the funds appropriated by the pending bill, and holds
that the amendment is in order, and overrules the point of order.
[[Page 6292]]
When Amendment May Be Offered
Sec. 64.18 To an appropriation bill, an amendment in the form of a new
section limiting the use of all appropriations in the bill may be
offered after sufficiently diverse parts of the bill have been read
and is not required to come at the end of the bill.
On June 28, 1952,(8) the Committee of the Whole was
considering H.R. 8370, a supplemental appropriation bill. The Clerk
read as follows:
---------------------------------------------------------------------------
8. 98 Cong. Rec. 8502, 8503, 82d Cong. 2d Sess.
---------------------------------------------------------------------------
Amendment offered by Mr. [Ben F.] Jensen [of Iowa]: Page 37,
after line 2 insert a new section as follows:
``Sec.--. (a) No part of any appropriation made by this act for
any purpose shall be used for the payment of personal services in
excess of an amount equal to 85 percent of the amount requested for
personal services for such purpose in budget estimates heretofore
submitted to the Congress for the fiscal year 1953; and the total
amount of each appropriation, any part of which is available for
the payment of personal services for any purpose, is hereby reduced
by an amount equal to 15 percent of the amount requested in such
budget estimates for personal services for such purpose less an
amount representing the reduction, if any, between the amount
requested for personal services in the budget estimates and the
amount appropriated herein for such services.
``(b) This section shall not apply to--
``(1) not to exceed 25 percent of all vacancies;
``(2) positions filled from within the Mutual Security Agency
and related Government functions provided for in this act;
``(3) offices or positions required by law to be filled by
appointment of the President by and with the advice and consent of
the Senate;
Provided further, That subsection (1) of paragraph (b) shall
operate to accomplish the provisions of paragraph (a), and the said
85 percent shall not be exceeded at any time during fiscal year
1953; and Provided further, each agency shall impound and deposit
in the general fund of the Treasury as soon as practicable, but not
less frequently than quarterly an amount equivalent to the savings
resulting from the vacant positions which are prohibited from being
filled by this section, based on the salaries of the prior
incumbents of the positions.''
Mr. [J. Vaughan] Gary of Virginia: Mr. Chairman, I make a point
of order against the amendment. The amendment applies to the act
and should be placed at the end of the act, rather than at the end
of the chapter which we are now considering. I wonder if the
gentleman will not withdraw the amendment at this time, and offer
it at the conclusion of the act.
The Chairman: (9) The Chair is ready to rule.
---------------------------------------------------------------------------
9. Francis E. Walter (Pa.).
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[[Page 6293]]
The language contained in this amendment might well appear at
any part of the act. It is not of such a nature that it must come
at the conclusion of the measure now under consideration. The Chair
overrules the point of order.
Legislation Permitted by Special Rule
Sec. 64.19 The House, by resolution, has given the Committee on
Appropriations authority to incorporate in any appropriation
measure legislative recommendations emanating from the
investigation authorized to be conducted by that committee in that
resolution, as, for example, a prohibition of expenditures in other
acts for salary or compensation to certain persons found by the
committee to be subversive, notwithstanding Rule XXI clause 2.
On May 17, 1943,(10) H.R. 2714, an urgent deficiency
appropriation, was being considered in the Committee of the Whole. At
one point the Clerk read as follows, and proceedings ensued as
indicated below:
---------------------------------------------------------------------------
10. 89 Cong. Rec. 4558, 78th Cong. 1st Sess.
---------------------------------------------------------------------------
Amendment offered by Mr. (John H.) Kerr (of North Carolina): On
page 36, after line 23, insert as a new section the following:
``Sec. 304. No part of any appropriation, allocation, or fund
(1) which is made available under or pursuant to this act, or (2)
which is now, or which is hereafter made, available under or
pursuant to any other act, to any department, agency, or
instrumentality of the United States, shall be used to pay any part
of the salary, or other compensation for the personal services, of
Goodwin B. Watson, William E. Dodd, Jr., and Robert Morss Lovett:
Provided, That this section shall not operate to deprive any such
person of payment for leaves of absence or salary, or of any refund
or reimbursement, which have accrued prior to the date of the
enactment of this act.''
Mr. [Vito] Marcantonio [of New York]: Mr. Chairman, a point of
order.
The Chairman: (11) The gentleman will state the
point of order.
---------------------------------------------------------------------------
11. Wright Patman (Tex.).
---------------------------------------------------------------------------
Mr. Marcantonio: I make a point of order against the language
in line 3 of the amendment just offered, as follows:
Which is now, or which is hereafter made, available under
or pursuant to any other act, to any department, agency, or
instrumentality of the United States--
And so forth. This amendment seeks to limit an appropriation in
some other appropriation bill. It goes beyond this bill.
The Chairman: Does the gentleman from Missouri desire to be
heard on the point of order?
Mr. [Clarence] Cannon of Missouri: Mr. Chairman, this amendment
is made in order by House Resolution 105, authorizing the
investigation, providing--as shown on page 2 of the re
[[Page 6294]]
port, House Report No. 448--as follows:
Any legislation approved by the committee as a result of
this resolution may be incorporated in any general or special
appropriation measure emanating from such committee or may be
offered as a committee amendment to any such measure
notwithstanding the provisions of clause 2 of rule XXI.
Under that provision, the amendment is in order.
Mr. Marcantonio: May I say in reply, Mr. Chairman, that would
be true if the amendment offered were limited to this
appropriation, but the amendment offered extends to appropriations
not made by this bill.
The Chairman: The language appears to be rather plain and
specific to the Chair, ``any legislation approved by the Committee
as a result of this resolution may be incorporated in any general
or special appropriation measure.''
Therefore the point of order is overruled.
Note: The text of House Resolution 105 was as follows:
(12)
---------------------------------------------------------------------------
12. 89 Cong. Rec. 734, 78th Cong. 1st Sess., Feb. 9, 1943.
---------------------------------------------------------------------------
Resolved, That the Committee on Appropriations, acting through
a special subcommittee thereof appointed by the chairman of such
committee for the purposes of this resolution, is authorized and
directed to examine into any and all allegations or charges that
certain persons in the employ of the several executive departments
and other executive agencies are unfit to continue in such
employment by reason of their present association or membership or
past association or membership in or with organizations whose aims
or purposes are or have been subversive to the Government of the
United States. Such examination shall be pursued with the view of
obtaining all available evidence bearing upon each particular case
and reporting to the House the conclusions of the committee with
respect to each such case in the light of the factual evidence
obtained. Any legislation approved by the committee as a result of
this resolution may be incorporated in any general or special
appropriation measure emanating from such committee or may be
offered as a committee amendment to any such measure
notwithstanding the provisions of clause 2 of rule XXI.
For the purposes of this resolution, such committee or any
subcommittee thereof is hereby authorized to sit and act during the
present Congress at such times and places within the United States,
whether the House is in session, has recessed, or has adjourned, to
hold such hearings, to require the attendance of such witnesses,
and the production of such books or papers or documents or vouchers
by subpena or otherwise, and to take such testimony and records as
it deems necessary. Subpenas may be issued over the signature of
the chairman of the committee or subcommittee, or by any person
designated by him, and shall be served by such person or persons as
the chairman of the committee or subcommittee may designate. The
chairman of the committee or subcommittee, or any member thereof,
may administer oaths to witnesses.
Restriction on Transfer of Funds to Activities Funded in Paragraph
Sec. 64.20 A provision in a paragraph of a general appro
[[Page 6295]]
priation bill prohibiting the transfer of funds therein to any
other account or activity unless specifically authorized was held
to be a proper limitation on the use of funds in the paragraph.
On Aug. 1, 1973,(13) during consideration in the
Committee of the Whole of a general appropriation bill (H.R. 9590), the
following occurred:
---------------------------------------------------------------------------
13. 119 Cong. Rec. 27289, 93d Cong. 1st Sess.
---------------------------------------------------------------------------
Mr. [Tom] Steed [of Oklahoma]: Mr. Chairman, the points of
order made against the language are conceded down to line 7, page
23, but the language of that ``Provided further,'' is a simple
limitation on an appropriation bill and is not subject to a point
of order.
The Chairman: (14) The Chair agrees with the
gentleman from Oklahoma.
---------------------------------------------------------------------------
14. Richard Bolling (Mo.).
---------------------------------------------------------------------------
The various points of order that are conceded are sustained,
and that language is stricken. The language:
Provided further, That none of the funds available under this
heading shall be available for transfer to any other account
nor for the funding of any activities other than those
specifically authorized under this heading.
Which is a proper limitation and appears beginning in line 7,
page 23, through line 10, remains in the bill, since the point of
order has not been made against the entire paragraph.
Permanent Legislation; Use of ``Hereafter''
Sec. 64.21 An amendment to an appropriation bill in the form of a
limitation but containing the word ``hereafter'' was held to be
legislation and not in order.
On Jan. 31, 1936,(15) during consideration in the
Committee of the Whole of the Department of the Interior appropriation
bill (H.R. 10630), a point of order was raised against the following
amendment:
---------------------------------------------------------------------------
15. 80 Cong. Rec. 1300, 1305, 1306, 74th Cong. 2d Sess.
---------------------------------------------------------------------------
Amendment offered by Mr. (Byron N.) Scott (of California): On
page 48, line 13, after the word ``Interior'', add: ``Provided,
That hereafter no part of any appropriation for these Indian
schools shall be available for the salary of any person teaching or
advocating the legislative program of the American Liberty
League.''
Mr. [Edward T.] Taylor of Colorado: Mr. Chairman, I make a
point of order against the amendment. It is legislation on an
appropriation bill. . . .
The Chairman: (16) The Chair is ready to rule. The
word ``hereafter'' in the amendment makes the provision permanent
legislation. Permanent legislation on an appropriation bill would
not be in order. The language of the amendment here offered not
only applies to the appropriations of this bill but it would apply
to subsequent ap
[[Page 6296]]
propriations. Therefore, the amendment contains legislation; and
the point of order is sustained.
---------------------------------------------------------------------------
16. Robert L. Doughton (N.C.).
---------------------------------------------------------------------------
Change in Administrative Policy by Negative Restriction on Use of Funds
Sec. 64.22 While a limitation may not involve a permanent change of
existing law, the allegation that it may result in a change of
administrative policy would not itself render it subject to a point
of order if only a negative limitation on use of funds.
On May 11, 1960,(17) during consideration in the
Committee of the Whole of the Agriculture Department appropriation bill
(H.R. 12117), a point of order was raised against the following
section:
---------------------------------------------------------------------------
17. 106 Cong. Rec. 10053, 10054, 86th Cong. 2d Sess.
---------------------------------------------------------------------------
Sec. 408. No part of the funds appropriated by this Act shall
be used to pay the compensation of any employee or officer of the
Department, except the Secretary of Agriculture, who, in addition
to other regularly assigned responsibilities, serves as a member of
the Board of Directors or as an officer of the Commodity Credit
Corporation after February 1, 1961.
Mr. [Paul] Brown of Georgia: Mr. Chairman, a point of order.
The Chairman: (18) The gentleman will state it.
---------------------------------------------------------------------------
18. Paul J. Kilday (Tex.).
---------------------------------------------------------------------------
Mr. Brown of Georgia: Mr. Chairman, section 408 provides that
none of the funds appropriated by H.R. 12117, making appropriations
for the Department of Agriculture and Farm Credit Administration,
shall be used to pay the salary of any officer or employee of the
Department--except the Secretary--who serves as a member of the
Board of Directors of CCC, or as an officer of CCC, in addition to
other regular duties with the Department.
This reverses a decision made by the Banking and Currency
Committee and the Congress in 1949, when the CCC Charter Act was
amended to strike out a similar restriction which had been enacted
in 1948. It is, therefore, legislation, and the mere fact it is put
in the form of a limitation on the use of funds appropriated by the
bill does not save it. As paragraph 1691, volume 7, of Cannon's
Precedents of the House of Representatives puts it:
The purpose rather than the form of a proposed limitation
is the proper criterion by which its admissibility should be
judged, and if its purpose appears to be a restriction of
executive discretion to a degree that may be fairly termed a
change of policy rather than a matter of administrative detail
it is not in order.
Again in paragraph 1606 of the same volume, the following is
found:
Whenever a purported limitation makes unlawful that which
before was lawful or makes lawful that which before was
unlawful it changes existing law and is not in order on an
appropriation bill.
A proper limitation is negative and in the nature of a
veto, and when it assumes affirmative form by direction to an
executive in the discharge of his duties under existing law it
[[Page 6297]]
ceases to be a limitation and becomes legislation.
Section 408 in effect requires the Secretary to take
affirmative action. To carry out the farm programs financed by CCC,
the Secretary would have to appoint new Board members, recruited
from private life, to replace the six Department officers other
than himself who now serve on the Board. He would also have to
recruit and appoint new personnel to serve as officers of the
Corporation. This not only means the section constitutes
legislation, but also means it is not entitled to the protection of
the Holman rule, because it would not save the Government money. On
the contrary, it would require hiring new employees at additional
expense to the Government.
The Chairman: Does the gentleman from Mississippi [Mr. Whitten]
desire to be heard on the point of order?
Mr. [Jamie L.] Whitten: Mr. Chairman, the section clearly
provides a limitation on the use of funds that are appropriated in
this bill. It does not change the Commodity Credit Corporation
charter. It does not change any basic law. It just simply limits
what the money in this bill can be used for. It has been my
experience and observation during the years here that the Chair has
many times said that it is a negative limitation on the use of
money and that it is clearly in order, and on that I rest the
committee's position.
The Chairman: The Chair is prepared to rule.
The gentleman from Georgia [Mr. Brown] makes a point of order
against the language in section 408 of the bill on the ground that
it constitutes legislation on an appropriation bill.
The Chair has had an opportunity to examine the precedents in
this connection, including the precedents to which the gentleman
from Georgia has referred and from which he has read. The Chair
would also refer to paragraph 1694 of Cannon's Precedents, volume
7, the language being:
While a limitation may not involve change of existing law
or affirmatively restrict executive direction, it may properly
effect a change of administrative policy and still be in order.
The Chair has examined additional precedents bearing on this
question. The Chair is constrained to hold that section 408 is a
restriction on a manner in which the funds can be used, and
constitutes a negative limitation, and, therefore, overrules the
point of order.
Parliamentarian's Note: There are other recent rulings in which the
Chair has chosen to rely on 7 Cannon's Precedents Sec. 1694 rather than
on Sec. 1691 in permitting limitations on use of funds. See 118 Cong.
Rec. 30749, 30750, 92d Cong. 2d Sess., Sept. 14, 1972; 120 Cong. Rec.
20601, 20602, 93d Cong. 2d Sess., June 21, 1974; 120 Cong. Rec. 34716,
93d Cong. 2d Sess., Oct. 9, 1974. The two rulings noted above, found at
7 Cannon's Precedents Sec. Sec. 1691 and 1694, are discussed in more
detail in Sec. 5s1, supra.
Burden of Proof as to Whether Language ``Changes Existing Law''
Sec. 64.23 The Chair strictly interprets the provisions of
[[Page 6298]]
Rule XXI clause 2 prohibiting amendments to general appropriation
bills which change existing law; and if a proposed limitation on
the use of funds goes beyond the traditionally permissible objects
of a limitation, as for example restricting discretion in the
timing of expenditure of funds rather than restricting their use
for a specific object or purpose, the Chair is constrained to rule
that the amendment is legislation failing a convincing argument by
the proponent showing that the amendment does not change existing
law.
On July 28, 1980,(19) the Committee of the Whole having
under consideration the Department of Housing and Urban Development,
and independent agencies appropriation bill (H.R. 7631), an amendment
was offered and ruled upon as follows:
---------------------------------------------------------------------------
19. 126 Cong. Rec. 19924, 19925, 96th Cong. 2d Sess.
---------------------------------------------------------------------------
Mr. [Herbert E.] Harris [II, of Virginia): Mr. Chairman, I
offer an amendment.
The Clerk read as follows:
Amendment offered by Mr. Harris: Page 45, after line 23,
insert the following:
Sec. 413. No more than an amount equal to 20 percent of the
total funds appropriated under this Act for any agency for any
fiscal year and apportioned to such agency pursuant to section
3679 of the Revised Statutes of the United States (31 U.S.C.
665) may be obligated during the last two months of such fiscal
year. . . .
The Chairman: (20) Does the gentleman from Indiana
(Mr. Myers) insist on his point of order?
---------------------------------------------------------------------------
20. Elliott H. Levitas (Ga.).
---------------------------------------------------------------------------
Mr. [John T.] Myers of Indiana: I do, Mr. Chairman.
Mr. Chairman, the gentleman has offered an amendment to limit
the appropriations to a specific time; but I respectfully suggest
that the fact the gentleman has added the words, ``No more than''
is still not, in fact, a limitation. . . .
Mr. Chairman, the fact that you are limiting here, not
directing, but limiting the authority to the last 2 months how much
may be spent takes away the discretionary authority of the
Executive which might be needed in this case. It clearly is more
than an administrative detail when you limit and you take away the
right of the Executive to use the funds prudently, to take
advantage of saving money for the Executive, which we all should be
interested in, and I certainly am, too; but Mr. Chairman, rule 843
provides that you cannot take away that discretionary authority of
the Executive.
This attempt in this amendment does take that discretionary
authority to save money, to wisely allocate money prudently and it
takes away, I think, authority that we rightfully should keep with
the Executive, that you can accumulate funds and spend them in the
last quarter if it is to the advantage of the taxpayer and the
Executive. . . .
[[Page 6299]]
Mr. Harris: . . . Mr. Chairman, let me first address the last
point, probably because it is the weakest that the gentleman has
made with respect to his point of order.
With respect to the discretion that we are in any way limiting
the President, we cannot limit the discretion which we have not
given the President directly through legislation. There is no
discretion with regard to legislation that we have overtly
legislated and given to the President.
Mr. Chairman, section 665(c)(3) of title 31 of the United
States Code, which states the following:
Any appropriation subject to apportionment shall be
distributed as may be deemed appropriate by the officers
designated in subsection (d) of this section to make
apportionments and reapportionments.
Clearly grants agency budget officers the discretionary
authority to apportion the funds in a manner they deem appropriate.
My amendment would not interfere with this authority to apportion
funds. On the contrary, my amendment reaffirms this section of the
United States Code, as Deschler's Procedures, in the U.S. House of
Representatives, chapter 26, section 1.8, states:
The provision of the rule forbidding in any general
appropriation bill a ``provision changing existing law'' is
construed to mean the enactment of law where none exists, or a
proposition for repeal of existing law. Existing law may be
repeated verbatim in an appropriation bill, but the slightest
change of the text causes it to be ruled out.
My amendment, Mr. Chairman, as the Chair will note,
specifically restates by reference the existing law, which in no
way gives discretion as to spending, but gives discretion as to
apportionment.
Mr. Chairman, as the Chair knows, the budget execution cycle
has many steps. Whereas the Chair's earlier ruling related to the
executive branch authority to apportion, my amendment addresses the
obligation rate of funds appropriated under the fact. As OMB
circular No. A-34 (July 15, 1976) titled ``Budget Execution''
explains:
Apportionment is a distribution made by OMB.
Obligations are amounts of orders placed, contracts
awarded, services received, and similar transactions.
Mr. Chairman, my amendment proposes some additional duties, but
only a very minimal additional duty upon the executive branch.
Deschler's chapter 26, section 11.1 says:
The application of any limitation on an appropriation bill
places some minimal extra duties on Federal officials, who, if
nothing else, must determine whether a particular use of funds
falls within that prohibited by the limitation. . . .
The Chairman: . . . In the first instance, the Chair would
observe that it is not the duty of the Chair or the authority of
the Chair to rule on the wisdom or the legislative effect of
amendments.
Second, the Chair will observe that the gentleman from
Virginia, in the way in which his amendment has been drafted,
satisfies the requirements of the Apportionment Act, which was the
subject of a prior ruling of the Chair in connection with another
piece of legislation.
[[Page 6300]]
The Chair agrees with the basic characterization made by the
gentleman from Indiana that the precedents of the House relating to
limitations on general appropriation bills stand for the
proposition that a limitation to be in order must apply to a
specific purpose, or object, or amount of appropriation. The
doctrine of limitations on a general appropriation bill has emerged
over the years from rulings of Chairmen of the Committee of the
Whole, and is not stated in clause 2, rule XXI itself as an
exception from the prohibition against inclusion of provisions
which ``change existing law.'' Thus the Chair must be guided by the
most persuasive body of precedent made known to him in determining
whether the amendment offered by the gentleman from Virginia (Mr.
Harris) ``changes existing law.'' Under the precedents in
Deschler's Procedure, chapter 26, section 1.12, the proponent of an
amendment has the burden of proving that the amendment does not
change existing law.
The Chair feels that the basic question addressed by the point
of order is as follows: Does the absence in the precedents of the
House of any ruling holding in order an amendment which attempts to
restrict not the purpose or object or amount of appropriation, but
to limit the timing of the availability of funds within the period
otherwise covered by the bill, require the Chair to conclude that
such an amendment is not within the permissible class of amendments
held in order as limitations? The precedents require the Chair to
strictly interpret clause 2, rule XXI, and where language is
susceptible to more than one interpretation, it is incumbent upon
proponent of the language to show that it is not in violation of
the rule (Deschler's chapter 25, section 6.3).
In essence, the Chair is reluctant, based upon arguments
submitted to him, to expand the doctrine of limitations on general
appropriation bills to permit negative restrictions on the use of
funds which go beyond the amount, purpose, or object of an
appropriation, and the Chair therefore and accordingly sustains the
point of order.
Limiting Commingled Funds
Sec. 64.24 As long as a limitation on the use of funds in a general
appropriation bill restricts the expenditure of federal funds
carried in the bill without changing existing law, the limitation
is in order, even if those federal funds are under the program in
question commingled with nonfederal funds which would have to be
accounted for separately in carrying out the limitation.
On Aug. 20, 1980,(1) the Chair ruled that an amendment
to a general appropriation bill denying the use of funds therein to pay
for an abortion, or administrative expenses in connection with any
federal employees' health benefits plan which provides any benefits or
coverage for abortions after the
[[Page 6301]]
last day of contracts currently in force, did not constitute
legislation, since the amendment did not directly interfere with
executive discretion (in contracting to establish such plans). (It is
permissible by limitation to negatively deny the availability of funds
although discretionary authority may be indirectly curtailed and
contracts may be left unsatisfied.) The proceedings are discussed in
Sec. 74.5, infra. See Sec. 51, supra, for discussion of provisions
affecting the discretionary authority of officials.
---------------------------------------------------------------------------
1. 126 Cong. Rec. 22171, 22172, 96th Cong. 2d Sess.
---------------------------------------------------------------------------
Limitation Resulting in Unsatisfied Contracts
Sec. 64.25 An appropriation may be withheld from a designated object by
a negative limitation on the use of funds in a general
appropriation bill, although contracts may be left unsatisfied
thereby.
On July 10, 1975,(2) an amendment to a general
appropriation bill prohibiting the use of Interstate Highway System
funds in the bill by any state which permits the Interstate System to
be used by vehicles in excess of certain sizes and weights but not
interfering with contractual obligations entered into prior to
enactment was held in order as a negative limitation on the use of
funds in the bill which did not impose new duties on federal officials
(who were already under an obligation to determine vehicle weights and
widths in each state) and which did not directly change an allocation
formula in existing law. The proceedings are discussed in detail in
Sec. 69.8, infra.
---------------------------------------------------------------------------
2. 121 Cong. Rec. 22006, 22007, 94th Cong. 1st Sess.
---------------------------------------------------------------------------
Limitation Interfering With Discretion
Sec. 64.26 A negative restriction on the availability of funds in a
general appropriation bill may be a proper limitation, although it
indirectly interferes with an executive official's discretionary
authority by denying the use of funds, as long as it does not
directly amend existing law and is merely descriptive of functions
and findings already required to be undertaken by existing law.
On June 24, 1976,(3) it was held that, where existing
law prohibited the implementation by any court, department, or agency
of a plan to transport students to a school other than the school
nearest or next nearest their homes
[[Page 6302]]
which offers the appropriate grade level and type of education for each
student (thus requiring determinations of school proximity and
curriculum to be made by federal officials), a paragraph in a general
appropriation bill prohibiting the use of funds therein for the
transportation of students to a school other than the school nearest
their homes and offering the courses of study pursued by such students
was in order as a negative limitation on the use of funds in that bill
which did not directly amend existing law and which did not impose new
determinations on federal officials which they were not already
required by law to make. The proceedings were as indicated below:
---------------------------------------------------------------------------
3. 122 Cong. Rec. 20408-10, 94th Cong. 2d Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
Sec. 208. None of the funds contained in this Act shall be
used to require, directly or indirectly, the transportation of
any student to a school other than the school which is nearest
the student's home, and which offers the courses of study
pursued by such student, in order to comply with title VI of
the Civil Rights Act of 1964. . . .
Mr. [Louis] Stokes [of Ohio]: Mr. Chairman, I make the point of
order that the language set forth in section 208 of this bill
constitutes legislation in an appropriation bill, in clear
violation of rule XXI, section 2. . . .
Under existing law, that is, section 215(a) of the Equal
Educational Opportunity Act of 1974 (title II of P.L. 93-380,
enacted August 21, 1974), the transportation of students as part of
a school desegregation plan or effort under mandate of Federal
authorities is permitted or authorized, but only within prescribed
distances from a student's home.
Section 215(a) prescribes that:
No court, department, or agency of the United States shall,
pursuant to Section 214, order the implementation of a plan
that would require the transportation of any student to a
school other than the school closest or next closest to his
place of residence which provides the appropriate grade level
and type of education for such student.
Mr. Chairman, this is the standard of existing law, governing
the ordering of transportation of a student for purposes of school
desegregation, that is, not beyond the school closest or next
closest to his place of residence. . . .
On its face, section 208, the so-called Byrd amendment, changes
existing law (section 215(a) cited above) in the following
particulars:
First: Whereas existing law permits the transportation of a
student to the closest or ``next closest'' school, section 208
restricts such transportation to the ``nearest'' school, only,
thereby changing existing law;
Secondly: Whereas existing law is silent on the point, section
208 forbids student transportation ``directly or indirectly''
beyond the ``closest'' school, thereby creating new law on that
point;
Third: Whereas existing law only forbids HEW's implementation
of a school desegregation plan requiring transportation beyond the
``next closest'' school, section 208 forbids transportation be
[[Page 6303]]
yond the ``closest'' school, plan or no plan, thereby changing
existing law; and
Fourth: Whereas existing law prohibits transportation to a
school other than one ``which provides the appropriate grade level
and type of education for such student'', section 208 of this
appropriation bill changes existing law by restricting such
transportation to a school ``which offers the courses of study
pursued by such student'', only. While section 208 would be in
order if it merely repeated, verbatim, the provisions of existing
law (that is, section 215(a) described above), it clearly differs
from, goes beyond, and changes section 215(a) in the several ways
that I have indicated.
That, Mr. Chairman, is a fatal defect, for subsection 842 of
rule XXI declares existing law may be repeated verbatim in an
appropriation bill (IV Hinds' precedents, 3814, 3815) but the
slightest change of the text causes it to be ruled out (IV Hinds'
precedents 3817; Cannon's precedents 1391, 1394; Cong. Record, June
4, 1970, p. 18405). . . .
Mr. [Daniel J.] Flood [of Pennsylvania]: Mr. Chairman, very
simply, and very clearly, and the legal minds will understand the
terminology, this provision is in the form of a limitation, period.
It is strictly limited to the funds appropriated in this bill. The
clear intent here is to impose what is known as a negative
prohibition--a negative prohibition--of the use of the funds
contained in this bill. It would not under any circumstances impose
any additional duties or any additional burdens on the executive
branch other than those already required in the enforcement of
existing law. . . .
The Chairman: (4) May the Chair inquire of the
chairman of the Appropriations Subcommittee with respect to whether
or not the terms of section 208 would require additional
determinations by the administrator. The Chair would ask the
gentleman from Pennsylvania for his response as to whether the
standard of an appropriate grade level and type of education for
such students, which is stipulated in the Equal Educational
Opportunity Act of 1974, is a different standard from that set
forth in section 208 of the bill pending before us--that is,
courses of study pursued by such student.
---------------------------------------------------------------------------
4. James C. Wright, Jr. (Tex.).
---------------------------------------------------------------------------
The question that the Chair is attempting to arrive at
basically is whether or not the requirement of a determination with
respect to courses of study pursued by such student would in any
substantial way differ from the requirement in the statute of a
determination of the appropriate grade level and type of education
offered by the schools.
Mr. Flood: No, Mr. Chairman, the direct answer is this does not
require different standards. It is merely an expression in a
different way. It is not a requirement of any different standards.
It is an expression in a different way.
The Chairman: The Chair thanks the gentleman from Pennsylvania.
The Chair is prepared to rule.
The gentleman from Ohio (Mr. Stokes) makes the point of order
against section 208 of the present bill and supports his point of
order with a well documented brief and very persuasive verbal
argument on the subject.
[[Page 6304]]
Basically, three questions seem to be involved. The first
question is whether or not section 208 repeals or changes existing
law.
It seems to the Chair that that question is answered
satisfactorily by the chairman of the subcommittee when he declares
that it does not directly amend existing law, but rather imposes a
negative restriction only with respect to moneys contained in this
present appropriation bill and that it is written as a limitation
upon funds in this bill.
The second question occurs, of course, as to whether or not it
imposes additional duties upon a Federal official.
That divides itself into two basic subquestions in the opinion
of the Chair.
The first is whether the requirement in section 208 referring
only to the school nearest the student's residence requires an
additional duty over and above that required under the Equal
Education Opportunity Act of 1974. That law proscribes a court or
department or agency from ordering the transportation of students
to schools other than those either closest or next closest to their
homes. The Chair believes that no additional duties would be
imposed upon the Administrator by section 208 of the bill since the
Administrator already is required under existing law to make
determinations to ascertain the existence and location of the
comparable schools nearest and next nearest to the students' homes.
Therefore the Chair feels that the determination of the existence
of the school nearest the student's home would not be an additional
burden in that the law already compels the Administrator to make
that finding.
The second subquestion involved is that of whether or not an
additional burden would be imposed by reason of the reference under
section 208 to ``the courses of study pursued by such student'' in
the schools involved. And the Chair, relying primarily upon the
information provided in response to its inquiry by the gentleman
from Pennsylvania and relying upon his own impression as well
believes that ``the courses of study pursued by such student'' are
essentially the same tests as that required in the Equal Education
Opportunity Act, the appropriate grade level and type of education.
Now only one other question was addressed, it seems to the
Chair, and that was the question bearing upon a fairly well
established rule to the effect that existing law may be repeated
verbatim in an appropriation bill but the slightest change of the
text causes it to be ruled out. The Chair does not believe that
section 208 purports to be a statement of existing law. For each of
these reasons, and based upon the precedent cited by the gentleman
from Pennsylvania and recognizing that the committee could have
refused to appropriate any funds for implementation of
transportation plans, the Chair believes that section 208 is
properly in order as a limitation on an appropriation bill and
overrules the point of order.
Prohibiting Use of Funds to Enforce Particular Internal Revenue Service
Ruling
Sec. 64.27 An amendment to a general appropriation bill
[[Page 6305]]
prohibiting the use of funds therein to carry out any ruling of the
Internal Revenue Service which rules that taxpayers are not
entitled to certain charitable deductions was held in order as a
limitation, since the amendment was merely descriptive of an
existing ruling already promulgated by that agency and did not
require new determinations as to the applicability of the
limitation to other categories of taxpayers.
On July 16, 1979,(5) during consideration in the
Committee of the Whole of H.R. 4393 (Treasury Department, Postal
Service, and general government appropriation bill), a point of order
against an amendment was overruled, as follows:
---------------------------------------------------------------------------
5. 125 Cong. Rec. 18808-10, 96th Cong. 1st Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
Amendment offered by Mr. [Robert K.] Dornan [of
California]: Page 39, after line 18, add the following new
section:
Sec. 613. None of the funds available under this Act may be
used to carry out any revenue ruling of the Internal Revenue
Service which rules that a taxpayer is not entitled to a
charitable deduction for general purpose contributions which
are used for educational purposes by a religious organization
which is an exempt organization as described in section
170(c)(2) of the Internal Revenue Code of 1954. . . .
Mr. [Tom] Steed [of Oklahoma]: Mr. Chairman, I want to insist
upon my point of order.
Regardless of the merit of the subject matter here, this
obviously is not a limitation on an appropriation. It is evident by
the author's own statement that many things will be involved if
this amendment is adopted, that would be forced upon the agency,
that are not otherwise involved. It is in direct violation of
clause 2, rule XXI, because it does create legislative action.
This is obviously a matter that only the legislative committee
can cope with, and so because it is a violation of that rule I
insist that the point of order be sustained. . . .
Mr. Dornan: . . . I can assure the gentleman from Oklahoma (Mr.
Steed) that I checked out this amendment with the Parliamentarian's
Office, and I was told that the amendment was in order as a
limitation on an appropriations bill. There is no additional burden
imposed on Federal executive offices. IRS officials already perform
the simple ministerial requirement of analyzing our tax returns.
The amendment is negative in nature. It shows retrenchment on its
face. It is germane. Nevertheless, for the benefit of the
gentleman, if he desires, I will read some relevant excerpts from
Cannon's Precedents which demonstrate that the amendment is in
order. . . .
[I]n section 1515:
An amendment prohibiting payment of fees to officials under
certain contingencies was held to retrench expenditures and to
come within the exception to the rule against admis
[[Page 6306]]
sion of legislation on appropriation bills. . . .
Section 1491:
If the obvious effect of an amendment is to reduce
expenditures, it is not necessary that it provide for such
reduction in definite terms and amount in order to come within
the exception.
Section 1493, and I will conclude with this one--
A cessation of Government activities was held to involve a
retrenchment of expenditures. . . .
Mr. [Robert C.] Eckhardt [of Texas]: Mr. Chairman, this
amendment obviously adds a burden to the IRS to establish a
different standard from that which would be applicable under
existing law. If it did not, the amendment would be of no effect.
What is attempted to be done here is to provide a different rule of
law and impose that on the IRS by what is called a retrenchment in
an appropriations bill. If this may be done in the name of
retrenchment of expenditures, then any law of this Nation may be
changed. Funds may not be permitted to go to any agency which makes
a determination of an administrative sort unless that determination
is different from that which the law would permit to apply under
the circumstances. . . .
The Chairman: (6) The Chair is prepared to rule on
the point of order. The Chair is of the opinion that retrenchment
precedents under the Holman rule, do not apply in this situation
since no certain reduction in funds is involved. The Chair is of
the opinion that there are no precedents directly in point and the
Chair is not aware that the gentleman has sought the advice of the
Chair's advisers on this particular amendment but on a somewhat
similar amendment.
---------------------------------------------------------------------------
6. Richardson Preyer (N.C.).
---------------------------------------------------------------------------
The Chair is of the opinion that what is involved in the
amendment is a particular ruling which applied to a single case and
that, therefore, no new determination has to be made by the IRS. It
does not require the IRS to make new rulings or determinations. The
amendment does not describe a situation where the IRS must look at
every religious contribution to determine if it applies. The
amendment is somewhat analogous to that in Deschler's [Procedure],
chapter 25, section 10.16, which was held in order.
Therefore, the Chair thinks the amendment is in order, and the
point of order is overruled.
Parliamentarian's Note: A different result might now be required
under clause 5(b) of the present Rule XXI, which provides:
(7)
---------------------------------------------------------------------------
7. House Rules and Manual Sec. 846b, 99th Cong. (1985).
---------------------------------------------------------------------------
No bill or joint resolution carrying a tax or tariff measure
shall be reported by any committee not having jurisdiction to
report tax and tariff measures, nor shall an amendment in the House
or proposed by the Senate carrying a tax or tariff measure be in
order during the consideration of a bill or joint resolution
reported by a committee not having that jurisdiction. A question of
order on a tax or tariff measure in any such bill, joint
resolution, or amendment thereto may be raised at any time.
[[Page 6307]]
In a ruling under this provision on Sept. 12, 1984,(8) a
Senate amendment to a general appropriation bill prohibiting the use of
funds in that or any other act by the Internal Revenue Service to
impose or assess any tax due under a designated provision of the
Internal Revenue Code was held to be a tax measure within the meaning
of Rule XXI clause 5(b), as it had the effect of repealing a tax by
rendering it uncollectable through the use of all funds available to
the collecting agency. Of course, the amendment in question in the 1984
ruling was not a proper limitation. The extent to which any and all
proper limitations on Internal Revenue Service funds are to be
construed as tax or tariff measures under Rule XXI clause 5(b) is a
matter to be spelled out in subsequent rulings. For example, on Aug. 1,
1986, during consideration of H.R. 5294 (Treasury Department and Postal
Service appropriation bill for fiscal 1987), it was held that a
proposed limitation on the use of funds may violate Rule XXI clause
5(b) where it is shown that the imposition of the restriction on
Internal Revenue Service funding for the fiscal year would effectively
and inevitably preclude the IRS from collecting revenues otherwise due
and owing by law, or require collection of revenue not legally due or
owing.
---------------------------------------------------------------------------
8. 130 Cong. Rec. ----, 98th Cong. 2d Sess. Under consideration was
H.R. 5798, Treasury Department and Postal Service
appropriations for fiscal 1985.
---------------------------------------------------------------------------
Restricting Use of Funds--to Carry Out Particular Regulation
Sec. 64.28 It is in order on a general appropriation bill to deny the
use of funds to carry out an existing regulation, and the fact that
the regulation for which funds are denied may have been promulgated
pursuant to court order and pursuant to constitutional provisions
is an argument on the merits of the amendment and does not render
it legislative in nature.
On Aug. 19, 1980,(9) the Chair held that an amendment to
a general appropriation bill denying the use of funds therein for the
Internal Revenue Service to carry out certain published tax procedures
did not impose new duties or determinations on the executive branch and
did not constitute leg
[[Page 6308]]
islation. The proceedings were as indicated below:
---------------------------------------------------------------------------
9. 126 Cong. Rec. 21981, 21983, 21984, 96th Cong. 2d Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
Amendment offered by Mr. [Robert K.] Dornan [of
California]: Page 8, after line 22, insert the following new
sections:
Sec. 104. None of the funds appropriated by this title may
be used to carry out the proposed revenue procedure 4830-01-M
of the Internal Revenue Service entitled ``Proposed Revenue
Procedure on Private Tax-Exempt Schools'' (44 F.R. 9451 through
9455, February 13, 1979, F.R. Document 79-4801), or the
proposed revenue procedure 4830-01 of the Internal Revenue
Service entitled ``Proposed Revenue Procedure on Private Tax-
Exempt Schools'' (43 F.R. 37296 through 37298, August 22, 1978,
F.R. Document 78-23515); or parts thereof. . . .
Mr. [Charles B.] Rangel [of New York]: Mr. Chairman, I join in
a reservation of a point of order. . . .
Mr. Chairman, I think what we are doing is that we are
attempting again to legislate on an appropriation bill. It is clear
that the proponents of this type of amendment on previous occasions
were saying that the IRS has attempted to legislate and to go
beyond the scope that the Congress wanted to go and that they were
waiting for a court to review the jurisdiction of the IRS to make
certain that they would not be doing acts which this Congress has
the responsibility to perform.
Now we find that the courts have responded, and they responded
specifically not only to the proposed regulations but to the
constitutional obligations that we not fund schools that involved
themselves in racial discrimination; and certainly no Member of the
House, including the proponents of this amendment, would support
that. But they have specifically given guidelines. They have
directed what the Commissioner of the Internal Revenue would have
to do, and the Commissioner would indeed be guilty of contempt if
he did not follow those court directions.
It would seem to me that that is one argument as to why my
point of order should be sustained; but my second argument would be
that certainly it would not be equal protection under the law if
what the proponent of this amendment is really saying that if,
indeed, a teaching institution found itself losing its tax
exemption in Mississippi because of the Green case and then right
across the Mississippi River we found a different standard that had
been enacted by the IRS, I do not believe that this is what our
constitutional fathers really thought was equal protection under
the law. . . .
Mr. Dornan: . . . I refer again to Deschler's Procedure,
chapter 25, section 10.16:
Sec. 10.16 To a paragraph of a general appropriation bill
containing funds for expenses of the Internal Revenue Service,
an amendment prohibiting the use of any funds in the bill for
financing revenue rulings, letters, or advice not made
available to the general public was held in order as a negative
limitation which did not affirmatively impose new duties on
that agency. 120 Cong. Rec. 21029, 21030, 93d Cong. 2d Sess.,
June 25, 1974 [H.R. 15544].
Under section 10.18:
Sec. 10.18 While language in a general appropriation bill
may not by its terms directly curtail a discretionary authority
conferred by law, the Committee on Appropriations may, by re
[[Page 6309]]
fusing to recommend funds for all or part of an authorized
executive function, thereby effect a change in policy to the
extent of its denial of availability of funds. 120 Cong. Rec.
34716, 34717, 93d Cong. 2d Sess., Oct. 8, 1974 [H.R. 16901],
where a section in a general appropriation bill prohibiting the
use of any funds therein by the Environmental Protection
Agency--
As a case example--
``to administer any program to tax, limit or otherwise regulate
parking facilities'' was held in order as a negative limitation
on the use of funds in the bill.
Also, I think section 10.19 supports my amendment:
Sec. 10.19 It is in order on a general appropriation bill
to provide that no part, or only a specified amount, of an
appropriation shall be used in a certain way, even though
executive discretion be thereby negatively restricted. 118
Cong. Rec. 30749, 92d Cong. 2d Sess., Sept. 14, 1972 [H.R.
16593]--
They gave as an example:
where an amendment to a defense appropriation bill providing
that not more than a certain amount of funds therein for
alteration, overhaul, and repair of naval vessels shall be
available for such work in Navy shipyards was held in order as
a limitation on the use of funds in the bill. . . .
Mr. [Louis] Stokes [of Ohio]: Mr. Chairman, the word
``charitable'' is used in its common law sense in the Internal
Revenue Code. . . .
In the case of education, the . . . public policy of
nondiscrimination in both public and private schools [is well
established, being] derived from the 14th amendment to the
Constitution and its application in the case of Brown versus Board
of Education, subsequent judicial decisions and certain provisions
of the Civil Rights Act of 1964. Thus, schools which follow
discriminatory admission policies fail to qualify as charitable
and, therefore, are not tax exempt.
Under the amendment proposed by the gentleman from California,
Mr. Chairman, new duties are imposed upon the Internal Revenue
Service. Obviously, we are then legislating upon an appropriations
bill. . . .
Obviously, once again we are referring back to the previous law
of 1978, while in the interim period we have now had new Federal
judicial determinations relative to 501(C).
As the gentleman from New York (Mr. Rangel) made a very salient
point, is the fact that you cannot have Internal Revenue in the
posture where they must apply one set of rules and regulations to
the State of Mississippi and another set of rules and regulations
to the other 49 States.
Obviously, the amendment proposed by the gentleman would create
confusion and also would impose new duties and regulations upon the
Internal Revenue Service not previously imposed upon them, either
by the law or their own regulations. . . .
The Chairman Pro Tempore: (10) . . . [T]he Chair is
prepared to rule.
---------------------------------------------------------------------------
10. Richardson Preyer (N.C.).
---------------------------------------------------------------------------
In a similar instance on July 16, 1979, an amendment to this
general appropriations bill last year prohibiting the use of funds
therein to carry out any ruling of the Internal Revenue Service,
which rules that taxpayers are
[[Page 6310]]
not entitled to certain charitable deductions, was held in order as
a limitation, since the amendment was merely descriptive of an
existing ruling already promulgated by that agency and did not
require a new determination as to the applicability of the
limitation to other categories of taxpayers.
In essence, the wording of this amendment is similar to the
wording of the amendment which was found in order. The Chair does
not see any new duties in any way imposed by the amendment.
With reference to the court order issue, the language of the
amendment does not in any way speak to the question of court orders
or address the viability of court orders with regard to the
agency's actions.
Lastly, with regard to the equal protection clause argument,
although those may be constitutional arguments which go to the
substance of the amendment, they do not go to the merits of the
parliamentary argument.
Therefore, the point of order is overruled.
--For Changing an Existing Regulation
Sec. 64.29 While an agency may have authority to promulgate new
regulations which would change existing regulations, it is in order
in a general appropriation bill to deny the use of funds therein
for agency proceedings relating to changes in regulations.
The ruling of the Chair on June 27, 1984,(11) was that
language in a general appropriation bill prohibiting the use of funds
therein to eliminate an existing legal requirement for sureties on
customs bonds was in order as a valid limitation merely denying funds
to change existing law and regulations. The point of order was as
follows:
---------------------------------------------------------------------------
11. 130 Cong. Rec. ----, 98th Cong. 2d Sess.
---------------------------------------------------------------------------
Mr. [Bill] Frenzel [of Minnesota]: Mr. Chairman, I make a point
of order against section 513 on page 38.
The portion of the bill to which the point of order relates is
as follows:
Sec. 513. None of the funds made available by this Act for
the Department of Treasury may be used for the purpose of
eliminating any existing requirement for sureties on customs
bonds. . . .
[This provision] violates rule XXI, clause 2. The section
prohibits the use of funds for the continuation of customs
rulemaking with respect to existing requirements for sureties on
customs bonds.
The Customs Service has broad administrative authority to
establish guidelines for posting bonds for the payment of customs
duties.
The rulemaking process is now underway to determine whether
existing requirements for sureties on customs bonds should be
modified or replaced altogether.
Section 513 goes beyond the limitations of funds which are the
subject of this appropriation and constitutes an effort to change
existing law under the guise of a limitation. . . .
The Chairman: (12) The Chair is ready to rule. . . .
---------------------------------------------------------------------------
12. Anthony C. Beilenson (Calif.).
---------------------------------------------------------------------------
[[Page 6311]]
The Chair would rule that in fact this section does constitute
a proper limitation consistent with the existing law and overrules
the gentleman's point of order.
New Duties Required to Invalidate Limitation
Sec. 64.30 While all limitations on funds on appropriation bills
require federal officials to construe the language of that law in
administering those funds, that duty of statutory construction,
absent a further imposition of an affirmative direction not
required by law, does not destroy the validity of the limitation.
On June 27, 1974,(13) an amendment restricting the use
of funds in an appropriation bill for abortions or abortion referral
services, abortifacient drugs or devices, and the promotion or
encouragement of abortion, was held to be a negative limitation on
funds in the bill imposing no new duties on federal officials other
than to construe the language of the limitation in administering the
funds. The proceedings are discussed in Sec. 73.8, infra.
---------------------------------------------------------------------------
13. 120 Cong. Rec. 21687, 93d Cong. 2d Sess.
---------------------------------------------------------------------------
CHAPTER 26
Unauthorized Appropriations; Legislation on Appropriation Bills
F. PERMISSIBLE LIMITATIONS ON USE OF FUNDS
Sec. 65. Imposing ``Incidental'' Duties
Duties Already Required by Law
Sec. 65.1 The fact that a limitation on the use of funds in a general
appropriation bill will impose certain incidental burdens on
executive officials will not destroy the character of the
limitation so long as those duties--such as statistical comparisons
and findings of residence and employment status--are already
mandated by law.
On Aug. 25, 1976,(14) the Chair held that, where
existing law authorizing public works employment programs required a
federal official to consider the severity and duration of unemployment
in project areas and to make grants to local governments to be
administered for the direct benefit and employment of unemployed
residents of the affected community, language in a general
appropriation bill prohibiting the use of funds therein where less than
a certain percentage of the prospec
[[Page 6312]]
tive employees had resided in the area and had been unemployed for a
stated length of time was in order as a limitation which did not impose
upon federal officials any substantially new duties not already
required by existing law. The proceedings were as indicated below:
---------------------------------------------------------------------------
14. 122 Cong. Rec. 27737-39, 94th Cong. 2d Sess. See also Sec. 52,
supra, for general discussion of provisions imposing new duties
on executive officials. And see Sec. 73.8, infra.
---------------------------------------------------------------------------
The Clerk read as follows:
For expenses necessary to carry out title I of the Public
Works Employment Act of 1976 (Public Law 94-369),
$2,000,000,000: Provided, That not to exceed $10,000,000 may be
used for necessary administrative expenses, including expenses
for program evaluation by the Secretary of Commerce: Provided
further, None of the funds appropriated under this Chapter
shall be available for any project where less than ten percent
of the personnel to be employed on the project have currently
resided for at least thirty days in the area used in
determining project eligibility under Section 108(e) of Public
Law 94-369 and have been currently unemployed for at least
thirty days.
Mr. [James C.] Wright [Jr., of Texas]: Mr. Chairman, I make a
point of order against the language included in the proviso which
begins on page 2, line 11, and includes line 17, page 2. . . .
Quite obviously, Mr. Chairman, this language is legislation, in
that it imposes requirements not present in the authorizing
legislation and not present in existing law. It imposes duties or
determinations upon the administrator who would be required to
investigate, quite obviously, all of the personnel to be employed
on various projects and to make determinations as to where they
reside and how long they have there resided and, in addition, to
make determinations as to which of them have been currently
unemployed for at least 30 days.
Now, that does indeed impose a new burden and a new
determination and a new duty upon the Administrator.
Citing Deschler's Procedures in the U.S. House of
Representatives, chapter 26, section 11, I quote the following:
When an amendment, while curtailing certain uses of funds
carried in the bill, explicitly places new duties on officers
of the government or implicitly requires them to make
investigation, compile evidence, or make judgments and
determinations not otherwise required of them by law, then it
assumes the character of legislation and is subject to a point
of order.
It should not be necessary for me to recite any lengthy number
of precedents since they abound. May I offer only two. In the 1st
session of the 91st Congress, on July 31, 1969, the Chair ruled
that an amendment to an education appropriation bill including the
words, ``in order to overcome racial imbalance,'' would be
legislation on an appropriation bill because it would impose
additional duties and determinations on school officials.
On another occasion, during the second session of the 89th
Congress, on October 4, 1966, it was held by the Chair that a
general appropriation bill providing funds for Federal highways
constituted legislation if it included a provision specifying that
``No funds shall be used for any highway . . . which requires
either unjustified or harmful nonconforming use of land.''
In both of those cases, as well as in numerous other cases, it
has been uni
[[Page 6313]]
formly held by the Chair that any provision in an appropriation
bill which imposes additional determinations and requirements upon
an administrator to make investigations or compile evidence or make
judgments and determinations not otherwise required by law is
legislation and, therefore, is subject to a point of order. . . .
Mr. [Elford A.] Cederberg [of Michigan]: Mr. Chairman, [the
proviso] is a limitation on funds in the bill, and it is restricted
only to funds in the bill. It is consistent with but does not
change existing law. The application of the limitation requires
only information which it is the intention of the Department of
Commerce to obtain under the rules and regulations required by
existing law.
. . . Public Law 94-369, the Public Works Employment Act of
1976, provides in section 107--and I will read only part of the
section--as follows:
The Secretary shall consider among other factors (1) the
severity and duration of unemployment in proposed project
areas, (2) the income levels and extent of underemployment in
proposed project areas. . . .
Then section 108(e) of the act . . . [requires] the Department
of Commerce to issue rules and regulations and also [requires] that
any grant made to a local government based upon the unemployment
rate of a community or neighborhood within its jurisdiction . . .
be for a project of direct benefit to, or provide employment for,
unemployed persons who are residents of that community or
neighborhood.
The law was enacted on July 22, 1976. The Department of
Commerce on August 23, 1976, in accordance with the act, released
the required regulations; and I have copies of them here. . . .
The official guidelines provide [in part]:
The applicant's intent to hire the unemployed of a specific
area must be considered. . . .
[And]
The project must definitely benefit or provide employment
for unemployed persons within that neighborhood or community. .
. .
Mr. Chairman, the limitation does not require any significant
new duty, but is based on information and findings provided for in
the authorization or anticipated in the regulations issued under
the authorization. Such limitations have been found in order. . . .
I would also like to point out, Mr. Chairman, that the burden
of certification . . . would rest on the contractors. It is the
contractors who will certify that they will obtain information from
applicants on their residence and employment. . . .
Mr. Wright: . . . I want to say two basic things which I think
are pertinent to this question.
The first is that it is wholly inappropriate to rely upon so-
called official guidelines promulgated by an administrative agency
to support a contention that language in an appropriation bill does
not place obligations upon the administrator which are not required
by law. The question is whether it imposes additional obligations
upon that administrator which are not required by existing law.
If this Congress ever should reach the point of declaring that
some administrative guideline published in the
[[Page 6314]]
Federal Register and lying there for 30 days constitutes law, then
we shall have abrogated our most basic responsibilities. . . .
The gentleman from Michigan (Mr. Cederberg) quoted from a
portion of section 107 of the act in an effort to demonstrate that
the act itself requires these same determinations and findings that
the language in the appropriation bill would require. There is a
very significant difference between what the act requires and what
this proviso included in the appropriation bill would require.
I call the attention of the chairman to the very language which
was cited by the gentleman from Michigan:
The Secretary shall consider among other factors (1) the
severity and duration of unemployment in proposed project
areas, (2) the income levels and extent of underemployment in
proposed project areas, and (3) the extent to which proposed
projects will contribute to the reduction of unemployment.
In other words, the requirements imposed by the law upon the
Secretary are very easily satisfied by statistical data available
through the Bureau of Labor Statistics with respect to unemployment
in specific areas geographically denominated within the country.
Beyond that, however, the language which was proposed as an
exclusion in the appropriation bill would go much further than ask
the administrator to determine statistics with respect to general
areas. . . .
It would expand the requirement of the determination from a
determination with respect to statistics applying to geographical
areas, to make this determination include individual employees
proposed to be employed on the project. And that is an enormous
expansion. . . .
The Chairman: (15) The Chair is prepared to rule.
---------------------------------------------------------------------------
15. James G. O'Hara (Mich.).
---------------------------------------------------------------------------
The question, of course, is whether or not this limitation, or
so-called limitation, imposes substantial new duties on an official
of the executive branch. That question has been the subject of more
points of order on appropriation bills than perhaps any other, or
at least as many as any other. It is very difficult to make that
determination in circumstances like the present one, because, for
instance, as the gentleman from Michigan cited in Deschler's
Procedure, chapter 25, section 10.7:
It is not in order in an appropriation bill to insert by
way of amendment a proposition which places additional duties
on an executive officer; but the mere requirement that the
executive officer be the recipient of information is not
considered as imposing upon him any additional burdens and is
in order. . . .
The Chair is also aware of the rulings involving certain
limitations on appropriations for food stamps. Those amendments
involved the issue of whether or not the household's need for food
stamps was a result of the fact that a breadwinner within the
household was unemployed because he was engaged in a concerted work
stoppage in a strike and imposed certain incidental duties on the
executive branch to make the necessary determinations. In those
cases the language was held to be a valid limitation upon the
appropriation.
In regard to the language now before the chairman for decision,
the Sec
[[Page 6315]]
retary is required in the administration of the bill to make a
determination that not less than 10 percent of the personnel to be
employed on the project have been currently for at least 30 days in
the area, and have been currently unemployed for at least 30 days.
The Chair notes that the basic law does impose rather
substantial requirements in the sense that it requires, first, that
the Secretary consider among other matters the three factors listed
in section 107 that were mentioned by the gentleman from Texas as
statistical factors. The Chair agrees they are statistical factors.
He notes as well, though, that the gentleman from Michigan has
brought up the provisions of section 108(e) which go somewhat
further than that, and they require that any grant made to a local
government based upon the unemployment rate of a community or
neighborhood within its jurisdiction must be for a project of
direct benefit to, or provide employment for, unemployed persons
who are residents of that community or neighborhood.
So the law already imposes some substantial duties and
determinations similar to those which would be required by the
proposed limitation in this proviso. The Chair therefore would hold
that the particular proviso under consideration is one that does
impose a valid limitation upon the use of an appropriation and that
the duties imposed upon the Administrator are purely incidental and
do not impose any substantial new duties on the administrator.
Therefore the Chair overrules the point of order.
CHAPTER 26
Unauthorized Appropriations; Legislation on Appropriation Bills
F. PERMISSIBLE LIMITATIONS ON USE OF FUNDS
Sec. 66. Exceptions From Limitations
Proviso Construing Terms as ``Exception''
Sec. 66.1 Where a limitation in an amendment to an appropriation bill
prohibited certain payments to persons in ``excess of . . . $500,''
a further provision stating that such limitation would not be
``construed to deprive any share renter of payments'' to which he
might be otherwise entitled was held to be in order as an exception
to a limitation.
On Mar. 24, 1944,(16) during consideration of the
Department of Agriculture appropriation bill for 1945 (H.R. 4443), the
following proceedings occurred:
---------------------------------------------------------------------------
16. 90 Cong. Rec. 3095, 78th Cong. 2d Sess.
---------------------------------------------------------------------------
Mr. [Edward H.] Rees of Kansas: Mr. Chairman, I offer an
amendment.
The Clerk read as follows:
Amendment offered by Mr. Rees of Kansas: On page 62, line
5, after the colon following the word ``inclusive'', insert the
following: ``Provided further, That no payment or payments
hereunder to any one person or corporation shall be in excess
of the total sum of $500: And provided further, That this
limitation shall not be construed to deprive any share renter
of payments not exceeding the amount to which he would
otherwise be entitled.''
[[Page 6316]]
Mr. [Malcolm C.] Tarver [of Georgia]: Mr. Chairman, I make a
point of order against the amendment because of the inclusion of
the second proviso therein, which, in my judgment, constitutes
legislation upon an appropriation bill. It is in effect a
construction of the preceding proviso, and which legislatively
provides that the preceding proviso in the case of tenants shall
not be taken at its face value but that a different rule shall be
applicable to them. Because that provision is included, I think the
entire amendment is subject to a point of order because of its
being legislative in character. . . .
. . . [I]t is my opinion, having heard the amendment read,
although I have not had the opportunity to examine it carefully,
that the second proviso does not constitute merely an exception to
the limitation made in the first proviso, but it is legislative in
character and constitutes a legislative construction of the
language contained in the first proviso and is, therefore, clearly
in itself legislation. I know no reason why the gentleman from
Kansas should not offer or be permitted to offer the first proviso.
But I think the second proviso which reads, ``And provided further,
That this limitation shall not be construed to deprive any share
renter of payments not exceeding the amount to which he would
otherwise be entitled,'' is clearly a legislative construction of
the preceding proviso and, therefore, in itself constitutes
legislation.
The Chairman: (17) Does the gentleman from Kansas
desire to be heard further?
---------------------------------------------------------------------------
17. William M. Whittington (Miss.).
---------------------------------------------------------------------------
Mr. Rees of Kansas: Just one point. Let me observe that the so-
called limitation is a limitation only on the first proviso of the
amendment and does not constitute legislation on the bill.
The Chairman: The Chair is ready to rule. The Chair is of the
opinion that the second proviso constitutes an exception to the
provisions of the amendment as contained in the first proviso. The
Chair overrules the point of order.
Excepting Project From Dollar Limit Otherwise Applicable
Sec. 66.2 A provision in the general appropriation bill, 1951,
providing that no part of the appropriation shall be used for
beginning construction of any building costing in excess of
$15,000, except that a poultry breeding house may be constructed at
Purdue University at a cost of not to exceed $29,000, was held to
be a valid exception from a proper limitation and in order inasmuch
as the authorization for such projects contained no ceiling on such
expenditures and the exception was not construed as separate
construction authority.
On Apr. 27, 1950,(18) the Committee of the Whole was
considering H.R. 7786. A point of order
[[Page 6317]]
against a provision in the bill was overruled as follows:
---------------------------------------------------------------------------
18. 96 Cong. Rec. 5910, 5911, 81st Cong. 2d Sess.
---------------------------------------------------------------------------
Mr. [Kenneth B.] Keating [of New York]: Mr. Chairman, I make a
point of order against the language appearing in lines 15 to 17 on
page 157, reading ``Except that a poultry breeding house may be
constructed at Purdue University,'' on the ground that it is
legislation in an appropriation bill.
The Chairman: (19) Does the gentleman from
Mississippi desire to be heard on the point of order?
---------------------------------------------------------------------------
19. Jere Cooper (Tenn.).
---------------------------------------------------------------------------
Mr. [Jamie L.] Whitten [of Mississippi]: Yes, Mr. Chairman. Mr.
Chairman, I wish to call attention to the fact that under the
Research and Marketing Act, section 7-A, 7 United States Code
427(h), the Department of Agriculture is authorized to construct
agricultural buildings without limitation on the amounts. This
committee has put restrictions heretofore on these amounts, fixing
the individual amount at $15,000 per unit. We carry that provision
with the exception that in this instance we let them go above it.
It traces back to the legislative authorization in the Research
and Marketing Act under which they have authority to build such
houses without any limitation.
In effect this is a limitation.
The authorization reads as follows:
The money appropriated in pursuance of this title shall
also be available for the purchase or rental of land and the
construction and acquisition of buildings necessary for
conducting research provided for in this title.
In effect this is a limitation fixing the amount they may spend
for this purpose.
The Chairman: . . . The Chair has examined the provisions of
existing law cited by the gentleman from Mississippi and invites
attention to the fact that the first part of this paragraph appears
clearly to be a limitation and the latter part of the paragraph
appears to be an exception to the limitation for a purpose
authorized by law.
The Chair, therefore, overrules the point of order.
Duties Involved in Applying Limitation Already Required by Law
Sec. 66.3 It is in order as an exception from a limitation in a general
appropriation bill to include language precisely descriptive of
authority provided in law so long as the exception only requires
determinations already required by law and does not impose new
duties on federal officials.
On Aug. 3, 1978,(20) during consideration in the
Committee of the Whole of the foreign assistance appropriation bill
(H.R. 12931), a point of order was raised against the following
amendment:
---------------------------------------------------------------------------
20. 124 Cong. Rec. 24249, 24250, 95th Cong. 2d Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
Amendment offered by Mr. [Tom] Harkin [of Iowa]: Page 11,
strike out the period on line 17 and insert in
[[Page 6318]]
lieu thereof ``, except that funds appropriated or made
available pursuant to this Act for assistance under part I of
the Foreign Assistance Act of 1961 (other than funds for the
Economic Support Fund or peacekeeping operations) may be
provided to any country named in this section (except the
Socialist Republic of Vietnam) in accordance with the
requirements of section 116 of the Foreign Assistance Act of
1961.''. . .
Mr. [Clarence D.] Long of Maryland: Mr. Chairman, I do make a
point of order against the Harkin amendment. . . .
The gentleman's amendment clearly would place substantial
additional new duties on officers of the Government. Mr. Chairman,
in chapter 26, section 11.1, of ``Deschler's Procedures,'' the
following is stated:
But when an amendment, while curtailing certain uses of
funds carried in the bill, explicitly places new duties on
officers of the government or implicitly requires them to make
investigations, compile evidence, or make judgments and
determinations not otherwise required of them by law, then it
assumes the character of legislation and is subject to a point
of order.
Mr. Chairman, the gentleman's amendment intends that aid should
be provided to certain countries if such assistance will directly
benefit the needy people in such countries. Several legislative
provisions currently exist that presently provide for such
determinations, but these provisions do not apply to all the funds
appropriated in this bill.
In addition, the gentleman's amendment would require officials
to make judgments and determinations that they are not required to
make at the present time. We presently have no AID programs or AID
missions in any of these countries. In two of the countries we do
not have diplomatic relations, Vietnam and Cambodia. In one country
we have no U.S. Government representative, and that country is
Uganda. The gentleman's amendment would not only allow direct
assistance to flow to these countries, which is not now possible,
but also would require some U.S. Government official to determine
if the assistance is reaching the needy. This would require a U.S.
Government official to travel to these countries to make an onsite
inspection since there are no AID missions in any of these
countries and no U.S. Government representation present in three of
the countries. The gentleman's amendment definitely places
substantial additional duties on U.S. Government officials.
Also current law prohibits any direct assistance to Vietnam,
Laos, Cambodia, Uganda, Mozambique, or Angola. The gentleman's
amendment would allow direct assistance to flow to these countries
if the assistance would benefit the needy people. This in effect
changes the existing law. The amendment is legislative in nature
and in violation of clause 2, rule XXI. . . .
Mr. Harkin: Mr. Chairman, by the fact that I have included
section 116 of the Foreign Assistance Act of 1961, by that very
inclusion those four countries so named and listed are then put in
the category of being gross violators of human rights, and because
of the inclusion, then, of section 116, which I have laid out in my
amendment, there are no new duties imposed in my amendment--only
the requirements of existing law. . . .
[[Page 6319]]
Mr. Long of Maryland: I would simply say that we do not have
missions in these countries, and the duties that would be required,
to find out whether needy people would get the money, would require
us to send people there. That clearly imposes duties on the
Government which are not implied in the current legislation.
The Chairman:(1) The Chair is ready to rule.
---------------------------------------------------------------------------
1. Abraham Kazen, Jr. (Tex.).
---------------------------------------------------------------------------
According to the amendment, the only funds that the amendment
refers to are funds provided for in the bill, and the only
exception would be to the Socialist Republic of Vietnam; but funds
are to be provided in accordance with the requirements of law and
the law cited is, on its face, applicable to the countries covered
by the amendment; so the Chair does not see that there are any new
duties imposed on anyone by the amendment. Therefore, the Chair
respectfully overrules the point of order.
Statement of Purpose Should Not Accompany
Sec. Sec. 66.4 A limitation on the use of funds in a general
appropriation bill, or an exception therefrom, may not be
accompanied by language stating a motive or purpose in carrying out
the limition or exception.
On Aug. 8, 1978,(2) the Committee of the Whole had under
consideration the Defense Department appropriation bill (H.R. 13635),
when a point of order was sustained against a provision in the bill as
indicated below:
---------------------------------------------------------------------------
2. 124 Cong. Rec. 24969, 24970, 95th Cong. 2d Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
Sec. 860. None of the funds appropriated by this Act shall
be available for the pay of a prevailing rate employee, as
defined in paragraph (A) of section 5342(a)(2) of title 5,
United States Code, at a rate that is greater than 104 percent
of the rate of pay payable to an employee in the second step of
the grade of the regular, supervisory, or special wage
schedule, in which the prevailing rate employee is serving:
Provided, That to assure that this limitation does not (1)
reduce the rate of pay of a prevailing rate employee,
continuously employed after September 30, 1978, as set forth
hereafter, below the rate of pay for that employee in effect on
September 30, 1978, or (2) prevent such employee from receiving
the first 5.5 percent increase in rate of pay as the result of
any adjustments in pay pursuant to section 5343 of title 5,
United States Code, that become effective on or after October
1, 1978, the pay of a prevailing rate employee who was employed
before October 1, 1978, shall not be reduced by this limitation
(1) below that to which the employee was entitled based on his
or her rate of pay on September 30, 1978, or (2) after a pay
adjustment pursuant to section 5343 effective during fiscal
year 1979, below 105.5 percent of that to which the employee
would be entitled based on his or her rate of pay on September
30, 1978, if the employee--
(A) continues to be employed after October 1, 1978, without
a break in service of one work day or more; and
(B) is not demoted or reassigned for personal cause, or at
his or her request.
[[Page 6320]]
Mr. [Richard C.] White [of Texas]: Mr. Chairman, I raise a
point of order to section 860, that the provisions of this section
constitute legislation in an appropriation bill in violation of
rule XXI, clause 2 of the rules and regulations of the House of
Representatives.
In support, I cite Deschler's Procedures, page 367, section
1.2, in which it states:
Language in an appropriation bill changing existing law is
legislation and not in order.
And Cannon's Precedents, section 704, which states that the
language controlling executive discretion is legislation and is not
in order on an appropriation bill.
I believe that section 860 enacted into law can be construed as
requiring lower payment of salaries than may be required by law,
specifically Public Law 93-952, and thus it changes existing law. .
. .
Mr. [George H.] Mahon [of Texas]: Mr. Chairman, the object of
the provision is to limit expenditures and retrench programs and
expenditures, it is a limitation on an appropriation bill, which is
designed to save tremendous sums of money over the long run.
The Chairman: (3) The Chair is ready to rule.
---------------------------------------------------------------------------
3. Daniel D. Rostenkowski (Ill.).
---------------------------------------------------------------------------
The first part of the section seems to be a proper limitation,
however the proviso placed on line 3, page 57, certainly is a
legislative statement of purpose and not merely an exception from
the limitation.
The Chair sustains the point of order against the entire
section.
Additional Duties and Determinations Not Required by Existing Law
Sec. 66.5 To a proviso in a general appropriation bill denying the use
of funds to pay price differentials on contracts made for the
purpose of relieving economic dislocations, an amendment exempting
from that prohibition contracts determined by the Secretary of the
Army pursuant to existing laws and regulations as not to be
inappropriate therefor by reason of national security
considerations was ruled out as legislation imposing new duties on
the Secretary, absent any showing of existing provisions of law
requiring such a determination to be made.
On Sept. 16, 1980,(4) during consideration in the
Committee of the Whole of the Department of Defense appropriation bill
(H.R. 8105), a point of order against an amendment was sustained as
follows:
---------------------------------------------------------------------------
4. 126 Cong. Rec. 25606, 25607, 96th Cong. 2d Sess.
---------------------------------------------------------------------------
. . . No funds herein appropriated shall be used for the
payment of a price differential on contracts hereafter made for the
purpose of relieving economic dislocations: Provided further,
[[Page 6321]]
That none of the funds appropriated in this Act shall be used
except that, so far as practicable, all contracts shall be awarded
on a formally advertised competitive bid basis to the lowest
responsible bidder.
The Clerk read as follows:
Amendment offered by Mr. [Joseph P.] Addabbo [of New York]:
Page 41, line 23, strike out ``Provided further,'' and all that
follows through ``economic dislocations:'' on page 42, line 1,
and insert in lieu thereof ``Provided further, That no funds
herein appropriated shall be used for the payment of a price
differential on contracts hereafter made for the purpose of
relieving economic dislocations other than contracts made by
the Defense Logistics Agency and such other contracts of the
Department of Defense as may be determined by the Secretary of
Defense pursuant to existing law and regulations as not to be
inappropriate therefor by reason of national security
considerations:''. . . .
Mr. [Jack] Edwards of Alabama: Mr. Chairman, I make a point of
order against the amendment as legislation in a general
appropriation bill, and therefore in violation of clause 2 of rule
XXI.
I respectfully direct the attention of the Chair to Deschler's
Procedure, chapter 25, section 11.2 which states:
It is not in order to make the availability of funds in a
general appropriation bill contingent upon a substantive
determination by an executive official which he is not
otherwise required by law to make.
I also respectfully direct the attention of the Chair to
section 843 of the House Manual, which states in part:
The fact that a limitation on the use of funds may . . .
impose certain incidental burdens on executive officials does
not destroy the character of the limitation as long as it does
not directly amend existing law and is descriptive of functions
and findings already required to be undertaken under existing
law. . . .
Mr. Chairman, the amendment prohibits the payment of price
differentials on contracts except--and I quote:
As may be determined by the Secretary of Defense pursuant
to existing laws and regulations as not to be inappropriate
therefor by reason of national security considerations.
The exception makes the availability of funds for payment of
price differentials contingent on a substantive determination by
the Secretary of Defense which is not now required under the
current law. Although the determination is limited ``pursuant to
existing laws and regulations,'' there is no existing law at the
present time, and if this amendment is enacted, it will constitute
the existing law and require this new determination. . . .
The Chairman: (5) The Chair is ready to rule.
---------------------------------------------------------------------------
5. Daniel D. Rostenkowski (Ill.).
---------------------------------------------------------------------------
The amendment would appear to call for a determination by the
Secretary of Defense as to appropriateness by reason of national
security considerations. Unless the gentleman from New York (Mr.
Addabbo) can cite to the Chair those provisions of existing law
requiring such determinations with respect to defense contracts,
the Chair must conclude that the amendment would impose new duties
upon the Secretary and would constitute legislation.
[[Page 6322]]
Responsibilities Already Required in Broad Terms
Sec. 66.6 An exception from a limitation on the use of funds in a
general appropriation bill, stating that the limitation does not
prohibit use of funds for designated federal activities which were
already required by law in more general terms, was held in order as
not containing new legislation.
In proceedings on June 27, 1979,(6) an amendment denying
the use of funds for state plan monitoring visits by the Occupational
Safety and Health Administration where the workplace has been inspected
by a state agency within six months, but also providing that the
limitation would not preclude the federal official from conducting a
monitoring visit at the time of the state inspection, to investigate
complaints about state procedures, or as part of a special study
program, or to investigate a catastrophe, was held not to require new
determinations by federal officials, where existing law directed state
agencies to inform federal officials of all their activities under
state plans.
---------------------------------------------------------------------------
6. 125 Cong. Rec. 17033-35, 96th Cong. 1st Sess.
---------------------------------------------------------------------------
Mrs. [Beverly B.] Byron [of Maryland]: Mr. Chairman, I offer an
amendment.
(The portion of the bill to which the amendment relates is as
follows:)
Occupational Safety and Health Administration
salaries and expenses
For necessary expenses for the Occupational Safety and
Health Administration, $181,520,000: Provided, That none of the
funds appropriated under this paragraph shall be obligated or
expended for the assessment of civil penalties issued for first
instance violations of any standard, rule, or regulation
promulgated under the Occupational Safety and Health Act of
1970 (other than serious, willful, or repeated violations under
section 17 of the Act) resulting from the inspection of any
establishment or workplace subject to the Act, unless such
establishment or workplace is cited, on the basis of such
inspection, for 10 or more violations: . . . Provided further,
That none of the funds appropriated under this paragraph shall
be obligated or expended for the proposal or assessment of any
civil penalties for the violation or alleged violation by an
employer of 10 or fewer employees of any standard, rule,
regulation, or order promulgated under the Occupational Safety
and Health Act of 1970 (other than serious, willful or repeated
violations and violations which pose imminent danger under
section 13 of the Act) if, prior to the inspection which gives
rise to the alleged violation, the employer cited has (1)
voluntarily requested consultation under a program operated
pursuant to section 7(c)(1) or section 18 of the Occupational
Safety and Health Act of 1970 or from a private consultative
source approved by the Administration and (2) had the
consultant examine the condition cited and (3) made or is in
the process of making a reasonable good faith effort to
eliminate the hazard created
[[Page 6323]]
by the condition cited as such, which was identified by the
aforementioned consultant, unless changing circumstances or
workplace conditions render inapplicable the advice obtained
from such consultants.
The Clerk read as follows:
Amendment offered by Mrs. Byron: Page 10, line 20, after
the period, insert the following: ``None of the funds
appropriated under this paragraph may be obligated or expended
for any state plan monitoring visit by the Secretary of Labor
under section 18 of the Occupational Safety and Health Act of
1970, of any factory, plant, establishment, construction site,
or other area, workplace or environment where such a workplace
or environment has been inspected by an employee of a State
acting pursuant to section 18 of such Act within the 6 months
preceding such inspection, provided that this limitation does
not prohibit the Secretary of Labor from conducting such
monitoring visit at the time and place of an inspection by an
employer of a State acting pursuant to section 18 of such Act,
or in order to investigate a complaint about state program
administration, a discrimination complaint under section 11(c)
of such Act, or as part of a special study monitoring program,
or to investigate a fatality or catastrophe.''. . .
Mr. [William D.] Ford of Michigan: . . . I make the point of
order that this amendment constitutes legislation in an
appropriations bill in violation of rule XXI, clause 2, in that it
imposes additional duties upon the executive to the extent that
OSHA would be required to determine whether or not an employer had
been inspected by a third inspector within the previous 6 months.
The law does not now require OSHA to do this. This would clearly
pose additional duties and goes beyond the simple limitation.
As a matter of fact, Mr. Chairman, if you look at the language
of the authorization funded under this section of the
appropriations bill the chairman will determine the extent to which
the States participate as enforcers of the Federal OSHA
regulations. This now would have a Federal official presumably
trying to monitor the activities of State inspectors who are not,
in fact, OSHA inspectors. This is a very unusual result because we
do not now impose that duty in any way upon the OSHA inspectors. .
. .
Mrs. Byron: . . . It is my understanding that the State has the
opportunity when they are investigating, they are then monitored by
the Federal. This would then notify the Federal of where a State
inspection was taken care of; therefore, the Federal would be
following along after the State inspection. It would, therefore,
not be new legislation in an appropriations bill. . . .
The Chairman: (7) The Chair has read the statute
entitled 29 and would like to propound an inquiry to the gentleman
from Michigan, on part of his point of order.
---------------------------------------------------------------------------
7. Don Fuqua (Fla.).
---------------------------------------------------------------------------
The statute in subparagraph (f) states that the Secretary,
meaning the Secretary of Labor--
shall, on the basis of reports submitted by the State agency
and its own inspections, make a continuing evaluation of the
matter in which each State having a plan approved under this
section is carrying out such plan.
Does that pertain to how frequently the plan must be reviewed?
Mr. Ford of Michigan: Mr. Chairman, the amendment attempts to
uti
[[Page 6324]]
lize that language by talking about an attempt not to interfere
with the power of the Secretary to conduct monitoring visits, but
the fact is that the Secretary is required to determine, in order
to determine whether or not they have jurisdiction to conduct a
safety inspection, whether a State inspection had been conducted
within the previous 6 months. The amendment does not even define
what State inspection might be. It is not clear from reading the
amendment without further explanation, whether that means an
inspection is confined to OSHA or some overlapping State
regulation. . . .
The Chairman: The Chair is prepared to rule.
It appears that the interpretation that is being given by the
gentleman from Michigan in his point of order is a personal
interpretation and does not appear to be in the statutes.
The amendment of the gentlewoman states ``no funds appropriated
under this paragraph,'' and it appears to be a limitation on the
expenditures of funds under certain conditions suggesting
evaluations already imposed in broad terms upon Federal officials
by existing law, and, therefore, does not provide any additional
responsibilities that are not presently contained in existing
statutes.
The Chair therefore rules against the point of order.
Exception to Limitation Not Adding Legislation
Sec. 66.7 An exception from a limitation or from a legislative
amendment retrenching expenditures which does not add legislation
to a general appropriation bill is in order.
On July 30, 1980,(8) during consideration in the
Committee of the Whole of the Department of Agriculture appropriation
bill (H.R. 7591), a point of order against an amendment was not
sustained, as indicated below:
---------------------------------------------------------------------------
8. 126 Cong. Rec. 20503, 96th Cong. 2d Sess.
---------------------------------------------------------------------------
Mr. [Jamie L.] Whitten [of Mississippi]: Mr. Chairman, I offer
an amendment to the amendment.
The Clerk read as follows:
Amendment offered by Mr. Whitten to the amendment offered
by Mr. [Herbert E.] Harris [of Virginia]: Strike [out the]
period and add: ``, except that this limitation shall not apply
to emergency or disaster programs of the Farmers Home
Administration and the Agricultural Stabilization and
Conservation Service and programs for the control of infectious
or contagious diseases of humans and animals carried out by the
Food and Drug Administration and the Animal and Plant Health
Inspection Service.''.
Mr. Harris: Mr. Chairman, I would like to make a point of order
on that amendment. . . .
I feel the amendment is clearly legislation on an appropriation
bill and does in fact do violence to my amendment. . . .
Mr. Whitten: . . . Deschler's Procedure, chapter 25, section
9.7 [states]:
An exception to a valid limitation in a general
appropriation bill is in order, providing the exception does
not add language legislative in effect.
[[Page 6325]]
I do not consider that this adds legislative language to the
amendment. It is an exception to the limiting provision as offered.
I respectfully submit that it is in order and should be considered.
The Chairman: (9) The Chair is ready to rule.
---------------------------------------------------------------------------
9. James C. Corman (Calif.).
---------------------------------------------------------------------------
An exception to a limitation or a retrenchment which does not
add legislation is clearly in order under the precedents, and the
point of order is not sustained.
Sec. 66.8 An exception to a limitation on the use of funds in a general
appropriation bill is in order if it does not impose new duties or
determinations on the executive branch.
On July 13, 1979,(10) it was held that, to an amendment
retrenching expenditures in a general appropriation bill by reducing
amounts therein and prohibiting their availability to particular
recipients, an amendment lessening the amount of the reduction and also
providing an exception from the limitation may be in order as a
perfection of the retrenchment if funds contained in the bill remain
reduced thereby. The proceedings are discussed in Sec. 4.8, supra.
---------------------------------------------------------------------------
10. 125 Cong. Rec. 18456, 18457, 96th Cong. 1st Sess.
---------------------------------------------------------------------------
Sec. 66.9 To an amendment to a general appropriation bill prohibiting
the use of funds therein to enforce any embargo on the export of
agricultural commodities, an amendment excepting from that
prohibition any subsequently imposed Presidential embargo based
solely upon a determination that the export would be detrimental to
U.S. foreign policy or national security was held in order as a
valid exception from a limitation which did not impose new duties
but which merely repeated responsibilities already required by law.
On July 23, 1980,(11) during consideration in the
Committee of the Whole of H.R. 7584 (Departments of State, Justice,
Commerce, and the Judiciary appropriation bill), the following
amendment was held in order:
---------------------------------------------------------------------------
11. 126 Cong. Rec. 19295, 96th Cong. 2d Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
Amendment offered by Mr. [E. Thomas] Coleman [of Missouri]
to the amendment offered by Mr. [Mark] Andrews of North Dakota:
(12)
[[Page 6326]]
After the word ``commodity'' in the last line insert: ``unless
on or subsequent to October 1, 1980, the President imposes a
restriction on the export of any such commodity solely on the
basis that such export would prove detrimental to the foreign
policy or national security of the United States''. . . .
---------------------------------------------------------------------------
12. The Andrews amendment provided: ``None of the funds appropriated by
this Act may be used to carry out or enforce any restriction on
the export of any agricultural commodity.'' See 126 Cong. Rec.
19087, 96th Cong. 2d Sess., July 22, 1980.
---------------------------------------------------------------------------
Mr. [Silvio O.] Conte [of Massachusetts]: Mr. Chairman, I make
a point of order against the amendment in that it exceeds the
limitation and imposes additional duties upon the President of the
United States. . . .
Mr. Coleman: . . . Mr. Chairman, the point of order is not well
taken because my amendment does not establish any new additional
duties. It simply says that if the President of the United States
subsequent to October 1, 1980, imposes an embargo then none of
these funds shall be used to fund that embargo. It imposes
absolutely no new duties. It simply states that if the President on
his own takes some action, that none of these funds shall be used
to support that action. . . .
The Chairman: (13) The Chair is prepared to rule.
---------------------------------------------------------------------------
13. George E. Brown, Jr. (Calif.).
---------------------------------------------------------------------------
The gentleman from Massachusetts (Mr. Conte) makes a point of
order against the amendment of the gentleman from Missouri (Mr.
Coleman) on the grounds that it imposes an additional duty, and
constitutes legislation on an appropriation bill. Ordinarily, such
Presidential determination language on an appropriation bill would
constitute legislation, but the amendment only repeats verbatim the
determination authority contained in the section of existing law
(section 4(c) of the Export Administration Act of 1979) which has
been called to the Chair's attention.
Therefore, the amendment does not constitute new legislation in
any way discernible to the Chair.
Parliamentarian's Note: Ensuing debate on the Coleman amendment by
Mr. Thomas S. Foley, of Washington, and Mr. Jonathan B. Bingham, of New
York, suggested that section 7 of the Export Administration Act,
relating to domestic short supply of agricultural products, imposed a
different standard from section 4(c) relied upon by the Chair and that
the use of the term ``solely'' therefore infringed upon the Secretary's
discretionary authority under section 7. A reading of subsection 7(g)
suggests that the same standard is applied in permitting the President
and Secretary of Agriculture to issue export licenses of agricultural
commodities not in short supply, but that under subsection 7(a), with
regard to agricultural commodities which are in short domestic supply,
the President may curtail export of such commodities regardless of
whether such policy is in the best security or foreign policy interest
of the United States.
Effect of Limitation Where Funds for Agency Are Eliminated From Bill
Sec. 66.10 A paragraph of a general appropriation bill deny
[[Page 6327]]
ing use of funds therein for antitrust actions against units of
local government, but providing that the limitation did not apply
to private antitrust actions, where the appropriation for the FTC
(which had brought such actions) had been stricken on a point of
order, was held in order as a proper limitation not directly
changing existing law, since the provision was confined to the
funds in the bill and affected federal court jurisdiction only
insofar as it was a simple denial of the use of funds in the bill.
On May 31, 1984,(14) during consideration in the
Committee of the Whole of the Departments of State, Justice, and
Commerce appropriation bill (H.R. 5172), a point of order was overruled
as indicated below:
---------------------------------------------------------------------------
14. 130 Cong. Rec.----, 98th Cong. 2d Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
Sec. 610. None of the funds appropriated or otherwise made
available by this Act may be obligated or expended to issue,
implement, administer, conduct or enforce any antitrust action
against a municipality or other unit of local government,
except that this limitation shall not apply to private
antitrust actions. . . .
Mr. [John Edward] Porter [of Illinois]: Mr. Chairman, I raise a
point of order against section 610, which would be lines 23 to 25
on page 56, and lines 1 to 3 on page 57 as being legislation on an
appropriations bill under clause 2 of rule XXI.
I would note to the Chair two points. First, the wording of
section 610 would apply to all funds under the act. That would
include funds for the Federal judiciary and the operations of
Federal courts. If, in fact, the language of section 610 were to
apply to the Federal courts, it would limit Federal jurisdiction in
cases involving antitrust suits against municipalities. If, in
fact, it would limit Federal jurisdiction in that way, it seems to
me, Mr. Chairman, that what it is is direct legislation both in
terms of the basic law and in terms of the laws under which the
courts operate.
Second, I would point out to the Chair that if, in fact, it
does not apply to the Federal judiciary, under a ruling in 1959 of
the Chair, indicated in Deschler's Procedure, chapter 26, section
A, paragraph 1, subparagraph 1.5, there the Chair held that where
there was a provision that was previously stricken on a point of
order that limiting language to that provision was itself
legislating.
And previously this afternoon the Chair has stricken on a point
of order all authorizing language respecting the FTC, which agency
would have jurisdiction over the subject matter.
So, Mr. Chairman, in either case it seems to me that this
section 610 is in fact legislation on an appropriations bill. . . .
Mr. [Martin O.] Sabo [of Minnesota]: . . . Section 610 of this
bill is simply a limitation on the expenditure
[[Page 6328]]
of Federal funds. It does not provide for any new power. It is
simply a limitation on the expenditure of funds, which clearly is
well within the rules of the House. . . .
Mr. [Hamilton] Fish [Jr., of New York]: Mr. Chairman, as we
look at section 610, the last clause reads: ``except that this
limitation shall not apply to private antitrust actions.'' So the
word, ``limitation,'' refers to the entire limitation in section
610 and does not affect the right to bring an action or the right
to enforce a judgment.
It is my judgment, therefore, that the language of the bill
allows private parties to bring actions under antitrust laws. It
also allows the enforcement of outstanding judgments in favor of
private parties, and as there is no limitation on the judicial
powers, we do not reach the question of courts being affected by
this limitation, as was stated in one of the arguments propounded
on this point of order.
The Chairman: (15) The Chair is prepared to rule.
---------------------------------------------------------------------------
15. George E. Brown, Jr. (Calif.).
---------------------------------------------------------------------------
The gentleman from Illinois (Mr. Porter) makes a point of order
against section 610 on the ground that it constitutes legislation
on an appropriation bill and would limit the power of the courts.
It is the Chair's opinion that the fact that the powers of the
courts might be limited by the restrictions on the funds or that
the FTC appropriation has been stricken on a point of order, does
not in itself constitute legislation, and that the section is
indeed only a limitation on expenditure of funds on the bill and as
such is proper in this section.
Mr. Porter: Mr. Chairman, does the Chair's ruling indicate,
therefore, that the language in section 610 does not affect Federal
court jurisdiction over the type of suits described in that
section, not including private suits?
Mr. [John D.] Dingell [of Michigan]: Mr. Chairman, as I recall,
the point of order was in two parts. The Chair has ruled on the
first part. I await with some interest the ruling of the Chair on
the second part.
The Chairman: The Chair had felt that he ruled on both parts.
The Chair feels that it is not . . . for the Chair to rule on the
effect of the negative limitation on the jurisdiction of the
courts. That is a matter for the House and the courts to determine.
From a parliamentary standpoint, the limitation is a valid
limitation and falls within the rules of the House.
Parliamentarian's Note: Even if FTC funds, no longer in the bill,
were the only possible moneys affected, the provision would have been
an appropriate denial of use of funds in the bill. But the federal
courts were also funded by the bill. The authority of the courts to
preside over such actions despite the limitation was a legal issue not
for the Chair to decide.
CHAPTER 26
Unauthorized Appropriations; Legislation on Appropriation Bills
F. PERMISSIBLE LIMITATIONS ON USE OF FUNDS
Sec. 67. Subject Matter: Agriculture
Change in Administrative Policy
Sec. 67.1 While a limitation may not involve a change of exist
[[Page 6329]]
ing law, it may properly effect a change of administrative policy
and still be in order (7 Cannon's Precedents Sec. 1694). For
example, language in an appropriation bill providing that none of
the funds therein shall be used to pay any employee of the
Department of Agriculture who serves as a member of the Board of
Directors or as an officer of the Commodity Credit Corporation was
held to be a limitation and in order.
On May 11, 1960,(16) the Committee of the Whole was
considering H.R. 12117, a bill making appropriations for the Department
of Agriculture. The Clerk read as follows:
---------------------------------------------------------------------------
16. 106 Cong. Rec. 10053, 10054, 86th Cong. 2d Sess.
---------------------------------------------------------------------------
Sec. 408. No part of the funds appropriated by this Act shall
be used to pay the compensation of any employee or officer of the
Department, except the Secretary of Agriculture, who, in addition
to other regularly assigned responsibilities, serves as a member of
the Board of Directors or as an officer of the Commodity Credit
Corporation after February 1, 1961.
Mr. [Paul] Brown of Georgia: Mr. Chairman, a point of order.
The Chairman: (17) The gentleman will state it.
---------------------------------------------------------------------------
17. Paul J. Kilday (Tex.).
---------------------------------------------------------------------------
Mr. Brown of Georgia: Mr. Chairman, section 408 provides. . . .
This reverses a decision made by the Banking and Currency
Committee and the Congress in 1949, when the CCC Charter Act was
amended to strike out a similar restriction which had been enacted
in 1948. It is, therefore, legislation, and the mere fact it is put
in the form of a limitation on the use of funds appropriated by the
bill does not save it. As paragraph 1691, volume 7, of Cannon's
Precedents of the House of Representatives puts it:
The purpose rather than the form of a proposed limitation
is the proper criterion by which its admissibility should be
judged, and if its purpose appears to be a restriction of
executive discretion to a degree that may be fairly termed a
change of policy rather than a matter of administrative detail
it is not in order.
Again in paragraph 1606 of the same volume, the following is
found:
Whenever a purported limitation makes unlawful that which
before was lawful or makes lawful that which before was
unlawful it changes existing law and is not in order on an
appropriation bill.
A proper limitation is negative and in the nature of a
veto, and when it assumes affirmative form by direction to an
executive in the discharge of his duties under existing law it
ceases to be a limitation and becomes legislation.
Section 408 in effect requires the Secretary to take
affirmative action. To carry out the farm programs financed by CCC,
the Secretary would have to appoint new Board members, recruited
from private life, to replace the six Department officers other
than himself who now serve on the Board. He would
[[Page 6330]]
also have to recruit and appoint new personnel to serve as officers
of the Corporation. This not only means the section constitutes
legislation, but also means it is not entitled to the protection of
the Holman rule, because it would not save the Government money. On
the contrary, it would require hiring new employees at additional
expense to the Government. . . .
The Chairman: The Chair is prepared to rule.
The gentleman from Georgia [Mr. Brown] makes a point of order
against the language in section 408 of the bill on the ground that
it constitutes legislation on an appropriation bill.
The Chair has had an opportunity to examine the precedents in
this connection, including the precedents to which the gentleman
from Georgia has referred and from which he has read. The Chair
would also refer to paragraph 1694 of Cannon's Precedents, volume
7, the language being:
While a limitation may not involve change of existing law
or affirmatively restrict executive direction, it may properly
effect a change of administrative policy and still be in order.
The Chair has examined additional precedents bearing on this
question. The Chair is constrained to hold that section 408 is a
restriction on a manner in which the funds can be used, and
constitutes a negative limitation, and, therefore, overrules the
point of order.
Restriction Effective on Future Enactment of Legislation
Sec. 67.2 To a bill making appropriations for the Department of
Agriculture, including an item for a study of the price spread
between farmers and consumer, an amendment providing that no part
of these funds may be obligated after enactment of legislation
establishing a National Commission on Food Marketing, was held a
proper limitation and in order.
On May 19, 1964,(18) the Committee of the Whole was
considering H.R. 11202. The Clerk read as follows:
---------------------------------------------------------------------------
18. 110 Cong. Rec. 11388, 11389, 88th Cong. 2d Sess.
---------------------------------------------------------------------------
Economic Research Service
Salaries and expenses
For necessary expenses of the Economic Research Service in
conducting economic research and service relating to agricultural
production, marketing, and distribution, as authorized by the
Agricultural Marketing Act of 1946 (7 U.S.C. 1621-1627), and other
laws, including economics of marketing; analyses relating to farm
prices, income and population, and demand for farm products, use of
resources in agriculture, adjustments, costs and returns in
farming, and farm finance; and for analyses of supply and demand
for farm products in foreign countries and their effect on
prospects for United States exports, progress in economic
development and its relation to sales of farm products, assembly
and analysis of agricultural trade statistics and
[[Page 6331]]
analysis of international financial and monetary programs and
policies as they affect the competitive position of United States
farm products; $9,476,000: Provided, That not less than $350,000 of
the funds contained in this appropriation shall be available to
continue to gather statistics and conduct a special study on the
price spread between the farmer and consumer: Provided further,
That this appropriation shall be available for employment pursuant
to the second sentence of section 706(a) of the Organic Act of 1944
(5 U.S.C. 574), and not to exceed $75,000 shall be available for
employment under section 15 of the Act of August 2, 1946 (5 U.S.C.
55a): Provided further, That not less than $145,000 of the funds
contained in this appropriation shall be available for analysis of
statistics and related facts on foreign production and full and
complete information on methods used by other countries to move
farm commodities in world trade on a competitive basis.
Mr. [Paul] Findley [of Illinois]: Mr. Chairman, I offer an
amendment.
The Clerk read as follows:
Amendment offered by Mr. Findley: On page 12, line 24,
after the word ``consumer'' change the colon to a comma and
insert the following: ``except that no part of the funds
appropriated herein may be obligated for this special study
subsequent to the enactment of legislation establishing a
National Commission on Food Marketing:''.
Mr. [Jamie L.] Whitten [of Mississippi]: Mr. Chairman, I
reserve a point of order. . . .
The Chairman: (19) The time of the gentleman has
expired.
---------------------------------------------------------------------------
19. Eugene J. Keogh (N.Y.).
---------------------------------------------------------------------------
Does the gentleman from Mississippi insist on his point of
order?
Mr. Whitten: I insist on my point of order, Mr. Chairman.
The Chairman: The gentleman from Mississippi will state his
point of order.
Mr. Whitten: . . . The point of order I make is that this is
not a limitation on an appropriation bill as such but is entirely
dependent on a contingency that may never occur. For that reason
the point of order should be sustained. . . .
The Chairman: The Chair is ready to rule. . . .
. . . The Chair . . . is of the opinion that this amendment
constitutes a limitation on the funds herein appropriated even
though that limitation may be conditioned upon a condition
subsequent which may never come into existence and, therefore,
overrules the point of order.
Parliamentarian's Note: See 4 Hinds' Precedents Sec. 4004 for an
example of a condition subsequent held in order.
Recipients With Income in Excess of Certain Limit
Sec. 67.3 To an appropriation bill, an amendment providing that none of
the funds for the soil conservation program shall be paid to any
person having a net income in excess of $10,000 in the previous
calendar year was held to be a proper limitation restricting the
availability of funds and in order.
[[Page 6332]]
On May 1, 1952,(20) the Committee of the Whole was
considering H.R. 7314, a Department of Agriculture appropriation bill.
The Clerk read as follows:
---------------------------------------------------------------------------
20. 98 Cong. Rec. 4733, 4734, 82d Cong. 2d Sess.
---------------------------------------------------------------------------
Amendment offered by Mr. [James G.] Fulton [of Pennsylvania]:
Page 31, line 13, after the figure $2,500 insert ``and none of the
funds shall be paid to any person having a net income in excess of
$10,000 in the previous calendar year.''
Mr. [Jamie L.] Whitten [of Mississippi]: Mr. Chairman, I make a
point of order against the amendment as being legislation on an
appropriation bill. It would require a determination that one's
income was or was not beyond $10,000. It is my recollection that a
man's income and the amount of his income is not subject to finding
out on the part of the Government and I do not believe we could
determine it if it were in the legislation. . . .
Mr. Fulton: Mr. Chairman, my amendment is simply a limitation
as to the persons receiving it. Any person whose total income in
the previous calendar year is more than $10,000 will not receive
this money. It is a limitation on the payment of money. There is no
additional duty placed. After consulting with the gentleman from
New York [Mr. Taber] I believe he agrees with me that this is not a
further duty and is within the legislation.
The point of order should not be upheld because it is simply a
limitation on the payment of money. There are limitations on the
payment of money in other bills and this is simply limiting the
payment of money.
Mr. H. Carl Andersen [of Minnesota]: Mr. Chairman, this goes
beyond a limitation and brings in an entirely new principle that is
not included in the basic act. It is clearly legislation on an
appropriation bill, and, I might add, it is class legislation of
the worst kind.
The Chairman: (1) The Chair is prepared to rule.
---------------------------------------------------------------------------
1. Aime J. Forand (R.I.).
---------------------------------------------------------------------------
The Chair has studied the amendment and that part of the bill
to which it refers and finds that it is a limitation upon the
expenditure of money in this bill to any person having an income in
excess of a given figure. It is definitely a limitation and under
the circumstances the Chair is constrained to overrule the point of
order.
Parliamentarian's Note: This precedent is supported by the ruling
carried in 7 Cannon's Precedents Sec. 1669 where a limitation on
payments to persons receiving pay from another source in excess of a
certain amount was held in order.
Rural Electrification, Limiting Funds to Areas of Low Population
Sec. 67.4 An amendment to the Rural Electrification appropriation
providing in part that none of the money appropriated shall be used
to finance the construction and operation of generating
[[Page 6333]]
plants, electric transmission and distribution lines in any city,
village, or borough having a population in excess of 1,500
inhabitants was held to be a proper limitation on an appropriation
bill and in order.
On Mar. 24, 1944,(2) the Committee of the Whole was
considering H.R. 4443, an Agriculture Department appropriation bill.
The Clerk read as follows:
---------------------------------------------------------------------------
2. 90 Cong. Rec. 3105-07, 78th Cong. 2d Sess. See Sec. Sec. 9 and 22,
supra, for discussion of the burden of proof on the issue of
whether a provision is authorized by existing law, and the
effect of a failure to cite the law relied upon as
authorization for provisions in appropriation bills.
---------------------------------------------------------------------------
Amendment offered by Mr. [Lyle H.] Boren [of Oklahoma]: Page
78, line 5, add the following: ``Provided, That the moneys
appropriated or otherwise authorized under this caption (`Rural
Electrification Administration') and expended or loaned under the
authority conferred by section 4 of the act approved May 20, 1936,
shall be used only to finance the construction and operation of
generating plants, electric transmission and distribution lines, or
systems, for the furnishing of electric energy to persons in rural
areas who are not now receiving central station service: Provided
further, That none of the moneys appropriated or otherwise
authorized under this caption (`Rural Electrification
Administration') shall be used to finance the construction and
operation of generating plants, electric transmission and
distribution lines, or systems in any area of the United States
included within the boundaries of any city, village, or borough
having a population in excess of 1,500 inhabitants.''
Mr. [William R.] Poage [of Texas]: Mr. Chairman, a point of
order.
The Chairman: (3) The gentleman will state his point
of order.
---------------------------------------------------------------------------
3. William M. Whittington (Miss.).
---------------------------------------------------------------------------
Mr. Poage: Mr. Chairman, I make the point of order that, rather
than being a limitation on the appropriation, this is a change in
the substantive law that authorized the Rural Electrification
Administration; and I call the attention of the Chair to a ruling
that was handed down on April 19, 1943, when substantially the same
amendment was offered, the only difference being that the word
``exclusively'' has now been changed to ``only.'' I submit those
words have exactly the same meaning and that the ruling applied at
that time would be applicable at this time. . . .
Mr. Boren: Mr. Chairman, I submit that the proposed amendment
merely reaffirms existing law. It does not change existing law. It
does not change existing law or the substantive law that created
the Rural Electrification Administration or that governs its
organization and I submit that the proposals are limiting to the
appropriation in that the sole purpose and object of the proposals
are to prevent the use of this particular money outside the
provisions of existing law. That is, that they cannot use the
particular money involved in the appropriation in line 5, page 78,
to buy out electrical systems
[[Page 6334]]
in towns in excess of a population of 1,500.
Mr. Chairman, to support my contention that this is existing
law I want to say that the language of the first proviso is lifted
directly from section 4 of the R. E. A. Act approved May 20, 1936,
section 4 of which reads as follows:
Sec. 4. The Administrator is authorized and empowered, from
the sums hereinbefore authorized, to make loans to persons,
corporations, States, Territories, and subdivisions and
agencies thereof, municipalities, peoples, utility districts
and cooperatives, nonprofit, or limited-dividend associations
organized under the laws of any State or Territory of the
United States, for the purpose of financing the construction
and operation of generating plants, electric transmission and
distribution lines or systems for the furnishing of electric
energy to persons in rural areas who are not receiving central
station service.
That language is the language that is in the act of May 20,
1936, substantially word for word.
The Chairman: If the Chair may interrupt the gentleman, if it
is existing law what is the necessity for it being in the
amendment?
Mr. Boren: Mr. Chairman, the Chair anticipates the point of my
discussion in justifying the amendment. The reason is that so far
as appropriations are concerned, they have issued opinions down
there by a circuitous route and have managed to go ahead and buy
electrical systems in towns with a population in excess of 1,500.
They have done it in connection with other appropriations. So I
want to pick up this particular $20,000,000 and say that this
$20,000,000 shall not be expended in that illegal fashion.
Mr. Chairman, the language of the second proviso is lifted
directly from section 13 of the R. E. A. Act approved May 20, 1936.
Section 13 reads as follows:
Sec. 13. As used in this act the term ``rural area'' shall
be deemed to mean any area of the United States not included
within the boundaries of any city, village, or borough having a
population in excess of 1,500 inhabitants, and such term shall
be deemed to include the farm and nonfarm population thereof.
Mr. Chairman, it so happens that I served on the committee
which created the R.E.A. and I was a member of the subcommittee
that created it. I have a thorough familiarity with the act and
with the amendments that have been made to the act since its
original creation. I know what was in the mind of the committee
when this organization was created. But in spite of that, they are
spending this money to buy electrical plants in towns with a
population as high as 10,000 people. I want to limit the use of
this appropriation so that they cannot buy out existing facilities
in cities having populations of ten or twenty thousand.
Mr. Chairman, I submit that the point of order is not
substantiated by the facts in this case. First, this is a
limitation and, second, the language used has been lifted verbatim
from the substantive act creating this organization. . . .
Mr. Poage: I understood the gentleman to say that the amendment
was lifted word for word from the existing law. I have not seen the
amendment, Mr. Chairman, in writing, I have only heard it read, but
I understood from the reading of the amendment that the
[[Page 6335]]
word ``only'' is in the amendment. The amendment states, as I
understand it, that this money shall be used only for these
purposes. When you refer to the existing law the word ``only'' is
not in existing law. I wonder if the gentleman will tell us whether
the word ``only'' has been inserted in the proposed amendment? . .
.
The Chairman: Does the word ``only'' appear in the statute, in
response to the question asked by the gentleman from Texas [Mr.
Poage]?
Mr. Boren: The word ``only'' does not appear in the
statute.That is in the second proviso. Neither do the words ``shall
not be used for other purposes'' but I make the contention that is
the thing that makes it limiting. . . .
Mr. [Francis H.] Case [of South Dakota]: Would the gentleman's
amendment expand the basic law and authorize expenditures for
anything not authorized in the basic law?
Mr. Boren: It does not. It is solely limiting.
Mr. Case: In the use of the word ``only,'' does that word
``only'' limit the appropriation to expenditures for only a
particular purpose?
Mr. Boren: It does not. It does not preclude any of the
purposes in the substantive law.
Mr. Case: I wonder if the gentleman would explain this. My
understanding of a limitation is that it restricts the
appropriation to a portion of the original purposes. You cannot
expand an appropriation but you can restrict it. If the use of the
word ``only'' limits to only a certain part of the basic
appropriation, then it is a restriction and a limitation.
Mr. Boren: My amendment does not in any iota expand or take in
any new purposes. It limits the practice that is going on.
The reason I answered the gentleman as I did is, I am
unwilling, in my own judgment, to hold that the other practices
outside of this limitation are justified by law, but it does limit
them in some of the practices they are carrying on that they are
claiming come under the law. . . .
Mr. [Earl C.] Michener [of Michigan]: As I understand the
gentleman's interpretation of the word ``only,'' it is synonymous
to saying at that point in his amendment that ``this money shall be
used for no other purposes than.''
Mr. Boren: Exactly.
The Chairman: The Chair is ready to rule.
Reference has been made to similar amendments that have been
heretofore presented. It has also been stated that the language of
the amendment offered is identical with an amendment presented on
April 19, 1943, but an examination of the amendment offered at that
time will show that the language was considerably and materially
different than the language of the proposed amendment. Aside from
that, the Chair is more anxious to be correct than perhaps
consistent.
Mr. Poage: Mr. Chairman, I do not want it to be understood that
I said that the wording of these amendments were identical.
The Chairman: The Chair did not so state that the gentleman or
any other Member said that. That was brought to the attention of
the Chair a few minutes ago. As the Chair stated, he is more
interested in being correct than consistent.
Inasmuch as it is conceded that the language of the first
proviso is the lan
[[Page 6336]]
guage of the substantive law except for the word ``only,'' the
first proviso is a limitation, and in view of the fact the second
proviso is also a limitation, the point of order is overruled.
Rural Electrification, Construction
Sec. 67.5 To a paragraph of the Agriculture Department appropriation
bill making appropriations for the Rural Electrification
Administration, an amendment providing that ``during the period of
the war . . . no part of [the appropriation] shall be expended for
administrative services which have to do with the construction of
any facilities for the production . . . of electric power in any
area now receiving central station service'' was held germane and a
proper limitation and in order.
On Mar. 13, 1942,(4) the Committee of the Whole was
considering H.R. 6709. The Clerk read as follows, and proceedings
ensued as indicated below:
---------------------------------------------------------------------------
4. 88 Cong. Rec. 2445, 2446, 77th Cong. 2d Sess.
---------------------------------------------------------------------------
Amendment offered by Mr. [Charles I.] Faddis [of Pennsylvania]:
Page 88, line 18, after the period at the end of the line, insert a
comma and the following: ``Provided, That during the period of the
war in which the United States is now engaged, no part of this
money shall be expended for administrative services which have to
do with the construction of any facilities for the production or
transmission of electric power in any area now receiving central
station service.''
Mr. [John E.] Rankin of Mississippi: Mr. Chairman . . . .
I call the attention of the Chair to the fact that the duties
of the Rural Electrification Administration are already prescribed
in existing law. This amendment attempts to change that, which
makes it purely legislation on an appropriation bill. Besides, as I
pointed out a moment ago, this expense account has nothing whatever
to do with the disposition of the money borrowed by the rural
electrification cooperatives from the R. F. C. or through the R. F.
C. . . .
Mr. [Malcolm C.] Tarver [of Georgia]: Mr. Chairman, may I offer
an observation in connection with argument? The limitation which
the gentleman seeks to impose upon the administrative expenses
cannot be germane to this paragraph of the bill, which has nothing
to do with administrative expenses but merely with the item of
loans. The item of administrative expenses has already been passed.
. . .
The Chairman: (5) The Chair is ready to rule. . . .
---------------------------------------------------------------------------
5. Robert Ramspeck (Ga.).
---------------------------------------------------------------------------
The gentleman from Mississippi makes the point of order [that
the amendment] is not germane. The Chair feels that the present
amendment as distinguished from the former
[[Page 6337]]
amendment, being limited to the amount proposed to be appropriated
for the Rural Electrification Administration, and being a
limitation only upon the expenditure of those funds, is in order;
therefore, the point of order is overruled.
Agricultural Stabilization and Conservation Service
Sec. 67.6 To an appropriation bill providing funds for the Agricultural
Stabilization and Conservation Service, an amendment specifying
that ``none of the funds appropriated by this act shall be used
during the period ending June 30, 1971 to . . . carry out any 1971
crop-year program under which the total amount of payments to a
person . . . would [exceed] $20,000'' was held in order as a
limitation.
On June 9, 1970,(6) the Committee of the Whole was
considering H.R. 17923, a Department of Agriculture general
appropriation bill. The Clerk read as follows, and proceedings ensued
as indicated below:
---------------------------------------------------------------------------
6. 116 Cong. Rec. 18997, 18998, 91st Cong. 2d Sess.
---------------------------------------------------------------------------
For necessary administrative expenses of the Agricultural
Stabilization and Conservation Service, including expenses to
formulate and carry out programs authorized by title III of the
Agricultural Adjustment Act of 1938, as amended (7 U.S.C. 1301-
1393) . . . and laws pertaining to the Commodity Credit
Corporation, $152,690,000: . . . Provided further, That no part of
the funds appropriated or made available under this Act shall be
used (1) to influence the vote in any referendum. . . .
Mr. [Paul] Findley [of Illinois]: Mr. Chairman, I offer an
amendment.
The Clerk read as follows:
Amendment offered by Mr. Findley: On page 23, line 8, after
the word ``regulations'', strike the period, add a colon and
the following:
``Provided further, That none of the funds appropriated by
this act shall be used during the period ending June 30, 1971
to formulate or carry out any 1971 crop-year program under
which the total amount of payments to a person under such
program would be in excess of $20,000.''
Mr. [Jamie L.] Whitten [of Mississippi]: Mr. Chairman, I
reserve a point of order on the amendment. . . .
The Chairman: (7) does the gentleman from
Mississippi desire to be heard on his point of order?
---------------------------------------------------------------------------
7. James C. Wright, Jr. (Tex.).
---------------------------------------------------------------------------
Mr. Whitten: I do, Mr. Chairman.
If the Chair will note, the amendment is offered to a
particular section of the bill, but the language provides that
``none of the funds appropriated by this act,'' so it is a
limitation, which means it applies to the Commodity Credit
Corporation. The Commodity Credit Corporation was created under the
laws of Delaware in 1933. It was given the power, it was given the
right, and it was given the obligation of mak
[[Page 6338]]
ing payments, to make loans under the Corporation Control Act, and
it was provided that nothing in that act should let the Congress
prevent the corporation from discharging its functions. . . .
The Chairman: The Chair is prepared to rule. . . .
This point was made last year with respect to an amendment
offered by the gentleman from Massachusetts (Mr. Conte), which,
while not identical, is, in the opinion of the Chair, sufficiently
similar to the presently offered amendment, as to govern.
On that occasion the gentleman from Massachusetts offered an
amendment which would have provided:
That no part of the funds appropriated by this Act shall be
used to formulate or carry out any price support program (other
than for sugar) under which payments aggregating more than
$20,000 under all such programs are made to any producer or any
crops planted in the fiscal year 1970.
On the basis of previous rulings of the Chair, it is the
opinion of the present occupant of the chair, that the amendment
offered by the gentleman from Illinois is a limitation on an
appropriation bill and is therefore in order.
The point of order is overruled.
Countries Trading With North Vietnam
Sec. 67.7 To a general appropriation bill, an amendment providing that
no funds appropriated therein ``shall be used to . . . administer
programs for the sale of agricultural commodities'' to any nation
which sells, or permits ships or aircraft under its registry to
transport, materials to North Vietnam, ``so long as North Vietnam
is governed by a Communist regime,'' was held a limitation
restricting the availability of funds and in order.
On Apr. 26, 1966,(8) the Committee of the Whole was
considering H.R. 14596, a Department of Agriculture appropriation bill.
The Clerk read as follows, and proceedings ensued as indicated below:
---------------------------------------------------------------------------
8. 112 Cong. Rec. 8969, 8970, 89th Cong. 2d Sess.
---------------------------------------------------------------------------
Page 36, line 1:
``Commodity Credit Corporation
``Reimbursement for net realized losses
``To partially reimburse the Commodity Credit Corporation for
net realized losses sustained but not previously reimbursed,
pursuant to the Act of August 17, 1961 (15 U.S.C. 713a-11, 113a-
12), $3,500,000,000.''
Mr. [Paul] Findley [of Illinois]: Mr. Chairman, I offer an
amendment.
The Clerk read as follows:
Amendment offered by Mr. Findley: On page 36, on line 6
strike the period, insert a colon and the following:
``Provided, That no funds appropriated by this Act shall be
used to formulate or administer programs
[[Page 6339]]
for the sale of agricultural commodities pursuant to titles I
or IV of Public Law 480, Eighty-third Congress, as amended, to
any nation which sells or furnishes or which permits ships or
aircraft under its registry to transport to North Vietnam any
equipment, materials or commodities, so long as North Vietnam
is governed by a Communist regime.''. . .
The Chairman: (9) Does the gentleman from
Mississippi insist upon his point of order?
---------------------------------------------------------------------------
9. Eugene J. Keogh (N.Y.).
---------------------------------------------------------------------------
Mr. [Jamie L.] Whitten [of Mississippi]: Mr. Chairman, I do.
The Chairman: The gentleman will state it.
Mr. Whitten: Mr. Chairman, it is legislation on an
appropriation bill in that it imposes new duties, new
responsibilities, and determinations beyond the ability of the
Secretary of Agriculture, who administers this program, to
determine. . . .
Mr. Findley: Mr. Chairman, I feel that this amendment is in
order for precisely the same reason as the amendment just ruled
upon [that it seeks to impose an express limitation on the funds
appropriated by the pending bill]. It does provide a limitation on
funds under certain conditions, and therefore certainly is
completely within the rule.
The Chairman: The Chair is ready to rule. . . .
The Chair would state that it is satisfied that established
precedents in accord with the pending question justifies its
holding the language of the proposed amendment as a limitation on
the appropriation, and therefore overrules the point of order.
No Funds for Purpose Prohibited by State Law
Sec. 67.8 To a general appropriation bill providing funds for the
Department of Agriculture and including a specific allocation of
funds for animal disease and pest control, an amendment providing
that ``no appropriation . . . in this act shall be used for the
purchase or application of chemical pesticides'' where such action
``would be prohibited by State law'' was held to be germane to the
paragraph to which offered and in order as a limitation on the use
of the funds therein.
On May 26, 1969,(10) the Committee of the Whole was
considering H.R. 11612, a general appropriation bill providing funds
for the Department of Agriculture, with a specific allocation of funds
for animal disease and pest control. The Clerk read as follows, and
proceedings ensued as indicated below:
---------------------------------------------------------------------------
10. 115 Cong. Rec. 13752, 13753, 91st Cong. 1st Sess.
---------------------------------------------------------------------------
Plant and animal disease and pest control: For operations and
measures, not otherwise provided for, to control and eradicate
pests and plant and animal diseases and for carrying out as
[[Page 6340]]
signed inspection, quarantine, and regulatory activities, as
authorized by law, including expenses pursuant to the Act of
February 28, 1947, as amended (21 U.S.C. 114b-c), $89,-493,000. . .
.
Mr. [Richard L.] Ottinger [of New York]: Mr. Chairman, I offer
an amendment.
The Clerk read as follows:
Amendment offered by Mr. Ottinger: On page 5, line 5,
change the semicolon to a colon and add the following:
``Provided, That no appropriation contained in this act shall
be used for the purchase or application of chemical pesticides,
except for small quantities for testing purposes, within or
substantially affecting States in circumstances in which the
purchase or application of such pesticides would be prohibited
by State law or regulation, for any citizen or instrumentality
of State or local government.''
Mr. [Jamie L.] Whitten [of Mississippi]: Mr. Chairman, I wish
to reserve a point of order. . . .
Mr. Ottinger: . . . The amendment I am offering is designed
merely to prohibit the use of chemical pesticides by the Federal
Government in any State where those pesticides could not be legally
used, under State law or regulation.
DDT and similar chemical pesticides have been extensively
criticized in recent years, and the intensity of this criticism has
been considerably increased in the past few months; many scientists
have suggested that these chemicals should be banned outright.
Responding to this attack, Arizona and Michigan have banned the
use of these chemicals, and several other States are considering
similar bans; in addition, many States have the authority to
prohibit by regulation or executive action the use of chemicals
which are found to be harmful.
I do not feel that the Congress should be guilty of imposing
its own judgment in this area by permitting the use of these
chemicals in cases where the responsible State authorities have
concluded that they should be prohibited. My amendment would
subject the Department of Agriculture to no greater restrictions
than now operate upon citizens and State agencies in those States,
and in States where similar bans may be imposed in the future. . .
.
The Chairman: (11) Does the gentleman from
Mississippi desire to be heard on his point of order?
---------------------------------------------------------------------------
11. James C. Wright, Jr. (Tex.).
---------------------------------------------------------------------------
Mr. Whitten: Mr. Chairman, upon reading the amendment, I notice
it goes further than I thought it did. In the first place, I do not
know of any provision in this bill for the purchase of chemical
pesticides.
May I say further, Mr. Chairman, that the amendment before us
goes to the State law, exempting or including pesticides based on
those States which have passed State laws.
On that basis, Mr. Chairman, I contend that the amendment is
not germane and goes far beyond the legislation before us. . . .
The Chairman: The amendment offered by the gentleman from New
York (Mr. Ottinger) provides that no appropriation contained in
this act shall be used for the purchase or application of chemical
pesticides.
The amendment notes certain exceptions within or substantially
affecting
[[Page 6341]]
States in circumstances in which the purchase or application of
such pesticides would be prohibited by State law or regulation, or
any citizen or instrumentality of State or local government.
It is a well-established rule that an amendment to an
appropriation bill is germane wherein it denies the use of funds
for a specific purpose.
The amendment offered by the gentleman from New York (Mr.
Ottinger) appears to fall within that rule. It is a limitation upon
the use of funds appropriated in the bill. It is a denial of the
use of those funds for a specific purpose. Therefore, the Chair
overrules the point of order.
Parliamentarian's Note: A possible argument in support of the point
of order might have been the imposition on federal officials of a duty
to become conversant with a variety of state laws and regulations.
Whether such duty would be considered as a new or additional one not
contemplated in existing law, or whether federal officials might
already have such a duty in law, would then be an issue. A related
question would be whether implied duties incidental to an apparent
limitation on the use of funds are as objectionable as language which
expressly imposes duties of a more extensive nature. For further
discussion of the imposition of duties on officials as grounds for
ruling language out of order, see Sec. Sec. 52 and 53, supra.
Dissemination of Market Information
Sec. 67.9 To an Agriculture Department appropriation bill, including
funds for the Agricultural Marketing Service, an amendment
providing that no part of these funds may be used for dissemination
of market information over government-owned or leased wires serving
privately owned newspapers, radio, or television was held to be a
proper limitation although those functions were required by law to
be performed.
On May 19, 1964,(12) the Committee of the Whole was
considering H.R. 11202. The Clerk read as follows:
---------------------------------------------------------------------------
12. 110 Cong. Rec. 11391, 11392, 88th Cong. 2d Sess.
---------------------------------------------------------------------------
Agricultural Marketing Service
Marketing Services
For expenses necessary to carry on services related to
agricultural marketing and distribution as authorized by the
Agricultural Marketing Act of 1946 (7 U.S.C. 1621-1627) and other
laws, including the administration of marketing regulatory acts
connected therewith and for administration and coordination of
payments to States; and this appropriation shall be available for
field employment pursuant to
[[Page 6342]]
section 706(a) of the Organic Act of 1944 (5 U.S.C. 574), and not
to exceed $25,000 shall be available for employment at rates not to
exceed $75 per diem under section 15 of the Act of August 2, 1946
(5 U.S.C. 55a), in carrying out section 201(a) to 201 (d),
inclusive, of title II of the Agricultural Adjustment Act of 1938
(7 U.S.C. 1291) and section 203(j) of the Agricultural Marketing
Act of 1946; $39,389,000.
Mr. [Paul] Findley [of Illinois]: Mr. Chairman, I offer an
amendment.
The Clerk read as follows:
Amendment offered by Mr. Findley: On page 14, line 12,
after the figure ``$39,389,000'' strike the period, insert a
colon and the following: ``Provided, That no part of the funds
appropriated by this Act shall be used for any expenses
incident to the assembly or preparation of information for
transmission over Government-leased wires directly serving
privately-owned radio or television stations or newspapers of
general circulation, or for transmission over Government-leased
wires which are subject to direct interconnection with wires
leased by nongovernmental persons, firms or associations.''. .
.
The Chairman: (13) The gentleman from Mississippi
will state his point of order.
---------------------------------------------------------------------------
13. Eugene J. Keogh (N.Y.).
---------------------------------------------------------------------------
Mr. [Jamie L.] Whitten [of Mississippi]: The law requires, in
subsection k of section 1622 of the Agricultural Marketing Act of
1946, 7 U.S.C. 1621-27, as follows:
To collect, tabulate, and disseminate statistics of
marketing agricultural products, including, but not restricted
to statistics on market supplies, storage stocks, quantity,
quality, and condition of such products in various positions in
the marketing channel, utilization of such products, and
shipments and unloads thereof.
That statute is absolutely mandatory and requires the
Department to bring together that information. The gentleman's
amendment does not limit funds for the discharge of the duties
under that section. It attempts to deprive the Secretary of
authority conferred by law which was determined in an earlier
ruling (IV, 3846) to be legislation. Further, I respectfully submit
it will require additional duties of folks in the Department of
Agriculture, which is also legislation.
May I point out again, Mr. Chairman, in the last part of it, it
says the information cannot be collected for the purpose of being
disseminated. I respectfully submit it is legislation on an
appropriation bill calling for new duties and responsibilities on
the one hand, and limiting executive authority on the other.
The Chairman: Does the gentleman from Illinois desire to be
heard briefly on the point of order?
Mr. Findley: Mr. Chairman, here again I believe it is very
clear on the face of this amendment that it amounts to
retrenchment. Contrary to placing new burdens on department
employees it would actually relieve them of the responsibilities
which they assumed last April 1 in connection with the Weather
Bureau services and which they assumed August 1 in connection with
the establishment of the new Market News Service.
The Chairman: The gentleman from Illinois offers an amendment
addressed to page 14, line 12, which adds a proviso to the section
preceding that line as follows:
[[Page 6343]]
Provided, That no part of the funds appropriated by this
Act shall be used for any expenses incident to the assembly or
preparation of information for transmission over Government-
leased wires directly serving privately owned radio or
television stations or newspapers of general circulation, or
for transmission over Government-leased wires which are subject
to direct interconnection with wires leased by nongovernmental
persons, firms, or associations.
To this amendment the gentleman from Mississippi [Mr. Whitten]
makes the point of order that it is legislation on an appropriation
bill and points out that the functions sought in this amendment as
a limitation of the appropriation are functions that are required
by other substantive law.
The Chairman would call the attention of the Committee to the
fact that the existence of substantive law and the provisions
thereof are quite obviously not necessarily binding on the
Appropriations Committee. The Chair feels, therefore, that where
that committee seeks to appropriate funds and an amendment is
offered that seeks to deny the use of those funds even for
functions otherwise required by law, that that amendment is in the
nature of a limitation of appropriations and therefore overrules
the point of order.
Technical Assistance to Foreign Countries
Sec. 67.10 To an appropriation bill, an amendment providing that none
of the funds in the bill shall be used for technical assistance for
agricultural production of commodities exported by certain
countries was held to be a proper limitation and therefore in
order.
On July 11, 1955,(14) the Committee of the Whole was
considering H.R. 7224, a mutual security appropriation bill. The Clerk
read as follows:
---------------------------------------------------------------------------
14. 101 Cong. Rec. 10240, 84th Cong. 1st Sess.
---------------------------------------------------------------------------
Amendment offered by Mr. [Jamie L.] Whitten [of Mississippi]:
On page 10, line 15, change the period to a semicolon and add the
following: ``Nor shall any of these funds be used for technical or
other assistance for agricultural production of commodities
exported by such country.''
Mr. [Otto E.] Passman [of Louisiana]: Mr. Chairman, I make the
point of order that this is legislation on an appropriation bill.
It would impose additional duties, and it is not within the scope
of the bill being considered.
The Chairman: (15) The Chair does not agree with the
gentleman. The Chair firmly feels that this is a limitation within
the rules. Therefore, the Chair overrules the point of order.
---------------------------------------------------------------------------
15. Francis E. Walter (Pa.).
---------------------------------------------------------------------------
Prohibiting Funds for Certain Type of Crop Insurance Program
Sec. 67.11 To an appropriation bill providing funds for the Federal
Crop Insurance Cor
[[Page 6344]]
poration, and limiting the amount of premium income derived from
the fund which may be used for operating expenses, an amendment
providing instead that ``no funds (herein) shall be used to
formulate . . . a federal crop insurance program . . . that does
not meet its . . . operating expenses from premium income'' was
held to be a proper limitation restricting the availability of
funds and in order as not constituting an affirmative direction.
On Apr. 26, 1966,(16) the Committee of the Whole was
considering H.R. 14596. The Clerk read as follows, and proceedings
ensued as indicated below:
---------------------------------------------------------------------------
16. 112 Cong. Rec. 8968, 8969, 89th Cong. 2d Sess.
---------------------------------------------------------------------------
Federal Crop Insurance Corporation Fund
Not to exceed $4,150,000 of administrative and operating
expenses may be paid from premium income: Provided, That in the
event the Federal Crop Insurance Corporation Fund is insufficient
to meet indemnity payments and other charges against such Fund, not
to exceed $500,000 may be borrowed from the Commodity Credit
Corporation under such terms and conditions as the Secretary may
prescribe, but repayment of such amount shall include interest at a
rate not less than the cost of money to the Commodity Credit
Corporation for a comparable period.
Mr. [Paul] Findley [of Illinois]: Mr. Chairman, I offer an
amendment.
The Clerk read as follows:
Amendment offered by Mr. Findley: On page 35, strike all
language on lines 11 and 12, and insert the following:
``No fund appropriated by the Act shall be used to
formulate or administer a Federal crop insurance program for
the current fiscal year that does not meet its administrative
and operating expenses from premium income: Provided,''. . . .
Mr. [Jamie L.] Whitten [of Mississippi]: Mr. Chairman, I make a
point of order against the amendment offered by the gentleman from
Illinois on the ground that it is legislation on an appropriation
bill.
May I say that the gentleman from Illinois gave the matter
away, in my opinion, when he said that the purpose of his amendment
was to set premium rates that the Government would charge. I think
that shows clearly what is involved. This amendment provides that
no funds shall be used to administer this program under certain
conditions. The program now in existence is based on contracts to
which the Government is a party. For us in this bill to try to
prohibit the handling of existing contracts on the part of the
Government would clearly be legislation. It not only would be
legislation but it would interfere with meeting obligations under
existing contracts and commitments on the part of the Government. .
. .
Mr. Findley: . . . Mr. Chairman, the amendment I have offered
is clearly a limitation of funds, requiring that
[[Page 6345]]
no funds be appropriated for the administration or formulation of
programs. Therefore, on the basis of that it seems to me that the
amendment is in order.
Mr. Whitten: Mr. Chairman, if I may make one observation, the
amendment has to do with setting premiums and is quite clearly an
affirmative action.
The Chairman: (17) The Chair is prepared to rule. .
. .
---------------------------------------------------------------------------
17. Eugene J. Keogh (N.Y.).
---------------------------------------------------------------------------
It might be said that the effect of any proposed amendment is
truly not within the competence of the Chair. But a reading of this
language indicates to this occupant of the chair that there is here
sought an express limitation on the funds appropriated by the
pending bill and the Chair, therefore, overrules the point of
order.
Agricultural Conservation
Sec. 67.12 To a bill appropriating funds for agricultural conservation,
a provision that no part of the appropriation for soil building and
soil and water conserving practices shall be used to make small
payment increases (though authorized by law) was held to be a
limitation restricting the availability of funds and in order.
On May 18, 1959,(18) the Committee of the Whole was
considering H.R. 7175, a Department of Agriculture and Farm Credit
Administration appropriation bill.
---------------------------------------------------------------------------
18. 105 Cong. Rec. 8328, 8329, 8331, 8332, 86th Cong. 1st Sess.
---------------------------------------------------------------------------
Agricultural Conservation Program
For necessary expenses to carry into effect the program
authorized in sections 7 to 16, 16(a), and 17 of the Soil
Conservation and Domestic Allotment Act. . . . Provided further,
That none of the funds herein appropriated shall be used to pay the
salaries or expenses of any regional information employees or any
State information employees, but this shall not preclude the
answering of inquiries or supplying of information at the county
level to individual farmers: . . . Provided further, That no part
of any funds available to the Department, or any bureau, office,
corporation, or other agency constituting a part of such
Department, shall be used in the current fiscal year for the
payment of salary or travel expenses of any person who has been
convicted of violating the Act entitled ``An Act to prevent
pernicious political activities'', approved August 2, 1939, as
amended, or who has been found in accordance with the provisions of
title 18, United States Code, section 1913, to have violated or
attempted to violate such section which prohibits the use of
Federal appropriations for the payment of personal services or
other expenses designed to influence in any manner a Member of
Congress to favor or oppose any legislation or appropriation by
Congress except upon request of any Member or through the proper
official channels. . . .
Mr. [John W.] Byrnes of Wisconsin: Mr. Chairman, I offer an
amendment.
[[Page 6346]]
The Clerk read as follows:
Amendment offered by Mr. Byrnes of Wisconsin: On page 14,
line 18, strike out the period in line 18, insert a colon and
add ``Provided further, That no part of any funds appropriated
herein for soil building and soil and water conserving
practices, under the Act of February 29, 1936, as amended,
shall be used to make small payment increases as provided in
section 8(e) of that Act.''
Mr. [Jamie L.] Whitten [of Mississippi]: Mr. Chairman, I make a
point of order against the amendment. . . .
Mr. Byrnes of Wisconsin: . . . [T]he purpose of this amendment
and the real effect of this amendment would be to increase the
payments under the agricultural conservation program for actual
conservation practices without any increase in the appropriation
for that purpose.
I did not realize that this was the situation until I was
advised by the chairman of our State ASC committee in Wisconsin of
problems that they have encountered under section 8(e) in the 1938
act, which provides these so-called small payments. Under the law
enacted in 1938 payments made to farmers under the ACP program are
increased by specific percentage amounts if the payments are less
than $200. This is known as the small payments increase provision.
All of these increases are in small amounts. Under the formula
provided by law they run from $8 to $14 a farm, depending upon the
size of the payment which the farmer otherwise would earn as a
result of his practices.
In the aggregate, however, they represent a sizeable portion of
the funds paid by the Federal Government for conservation
practices. In 1957, for example, the latest year for which I have
data, small payment increases cost the Federal Government
$10,743,000.
Mr. Chairman, I suggest that the amendment being not only what
I consider meritorious to improve our soil conservation program and
make available more money for actual soil conservation practices is
in order as a limitation on an appropriation bill.
Mr. Whitten: . . . The gentleman's amendment is tied to the
money which this bill would appropriate to pay for contracts
entered into last year. I would respectfully submit here that to
tie strings to the money that is authorized under the basic act for
this additional contribution under small payments on contracts
which the Government owes, certainly should not lie here. That is a
matter having to do with legislation. If the law needs to be
changed, I am certain the gentleman could ably offer his
recommendations to the legislative committee on agriculture where
this matter should go.
Here in this bill, and we fought over this many times, Mr.
Chairman, in the conservation program, the ACP program, you do two
things. You announce next year's program and you provide funds for
the payment of existing contracts which have been entered into
under the previous year's announced program.
The Chairman: (19) The Chair is prepared to rule.
---------------------------------------------------------------------------
19. Paul J. Kilday (Tex.).
---------------------------------------------------------------------------
The gentleman from Wisconsin has offered an amendment which has
been reported by the Clerk. The gentleman from Mississippi has made
a point of
[[Page 6347]]
order against the amendment on the ground that it constitutes
legislation on an appropriation bill. The Chair would point out
that the amendment as offered by the gentleman from Wisconsin, is a
proviso to the language contained in the bill providing that no
part of any funds appropriated herein--and then states the
limitation of purpose for which the funds appropriated in this bill
shall not be used. Therefore, the Chair is constrained to hold that
this constitutes a limitation on the use of the funds and,
therefore, would be in order. The Chair overrules the point of
order.
Soil Conservation Service
Sec. 67.13 An amendment to the Department of Agriculture chapter,
general appropriation bill, 1951, providing, inter alia, that ``not
to exceed 5 percent of the allocation for the agricultural
conservation program for any county may be allocated to the Soil
Conservation Service'' for services of its technicians in carrying
out the agricultural conservation program, was held to be a
limitation negatively restricting the availability of funds and
therefore in order.
On Apr. 27, 1950,(20) the Committee of the Whole was
considering H.R. 7786. The Clerk read as follows:
---------------------------------------------------------------------------
20. 96 Cong. Rec. 5930, 5931, 81st Cong. 2d Sess.
---------------------------------------------------------------------------
Amendment offered by Mr. [Jamie L.] Whitten [of Mississippi]:
On page 191, line 17, after the colon insert: ``Provided further,
That not to exceed 5 percent of the allocation for the agricultural
conservation program for any county may be allocated to the Soil
Conservation Service for services of its technicians in formulating
and carrying out the agricultural conservation program, and the
funds so allocated shall not be utilized by the Soil Conservation
Service for any purpose other than technical and other assistance
in such county.'' . . .
Mr. [Fred] Marshall [of Minnesota]: Mr. Chairman, I raise the
same objection to this amendment as I heretofore raised, that it is
legislation on an appropriation bill. . . .
Mr. Whitten: I would just like to say that we made an effort to
modify the amendment to strike out the language which we believe
caused the Chair to hold earlier that it was subject to a point of
order. We have tried to bring it within the limits of a limitation
on an appropriation bill.
Mr. [Karl] Stefan [of Nebraska]: Is this amendment offered in
an effort to eliminate duplication?
Mr. Whitten: It is an effort to try to coordinate these
activities. I believe it holds high promise to give us a start on
the point which the gentleman raised previously.
The Chairman: (1) The Chair is prepared to rule. . .
.
---------------------------------------------------------------------------
1. Jere Cooper (Tenn.).
---------------------------------------------------------------------------
The Chair has examined the amendment and is of the opinion that
it con
[[Page 6348]]
stitutes a limitation on an appropriation bill and is in conformity
with the rules of the House.
The point of order, therefore, is overruled.
Parliamentarian's Note: Earlier during consideration of the same
bill, language in the bill which had given an affirmative direction
that the county agricultural conservation committee in any county with
the approval of the state committee may allot not to exceed five per
centum of its allocation for the agricultural conservation program to
the Soil Conservation Service for services of its technicians in
carrying out the program, was held to be legislation and not in order.
See Sec. 39.11, supra.
Printing of Yearbook of Agriculture
Sec. 67.14 To a section of the legislative branch appropriation bill
making appropriations for the Government Printing Office, an
amendment providing that no part of the appropriation shall be used
to pay the salary of any person who shall perform any service or
authorize any expenditure in connection with the printing and
binding of the Yearbook of Agriculture was held as a valid
limitation and in order, although there were no funds in the bill
designated for that purpose.
On Mar. 18, 1942,(2) the Committee of the Whole was
considering H.R. 6802. The Clerk read as follows:
---------------------------------------------------------------------------
2. 88 Cong. Rec. 2681, 77th Cong. 2d Sess.
---------------------------------------------------------------------------
Amendment offered by Mr. [Everett M.] Dirksen [of Illinois]: On
page 45, line 3, after ``1942'', insert ``Provided further, That no
part of this appropriation shall be used to pay the salary of any
person who shall perform any service or authorize any expenditure
in connection with the printing and binding of part 2 of the annual
report of the Secretary of Agriculture (known as the Year Book of
Agriculture) for 1942.''
Mr. [Malcolm C.] Tarver [of Georgia]: Mr. Chairman, I make a
point of order against the amendment. There are no funds carried in
this bill for the purposes which are inhibited by the gentleman's
amendment. It would be nugatory and of no effect, and I can
conceive of no rule under which it might be in order.
Mr. Dirksen: I think the amendment will speak for itself. I
think it is a limitation and would be germane and in order,
irrespective of whether any funds are carried, but the fact of the
matter is that the yearbook is not printed ordinarily until after
the first of the year. Consequently the personnel and salaries for
clerical work and mechanical work in the Government Printing Office
is done after the beginning of the fiscal year 1943. I
[[Page 6349]]
therefore regard it as a proper limitation and in order. . . .
The Chairman: (3) The Chair thinks that the
limitation is a valid one, and, therefore, the point of order is
overruled.
---------------------------------------------------------------------------
3. William R. Thom (Ohio).
---------------------------------------------------------------------------
Funds for Publishing Certain Types of Parity Ratios
Sec. 67.15 To an Agriculture Department appropriation bill, including
funds for a statistical reporting service, an amendment denying use
of these funds for publishing any ``parity'' ratio other than that
which is defined in section 301 of the Agricultural Adjustment Act
was held a limitation and in order as not affirmatively restricting
executive discretion.
On May 19, 1964,(4) the Committee of the Whole was
considering H.R. 11202. The Clerk read as follows:
---------------------------------------------------------------------------
4. 110 Cong. Rec. 11389, 11390, 88th Cong. 2d Sess.
---------------------------------------------------------------------------
Statistical Reporting Service
Salaries and expenses
For necessary expenses of the Statistical Reporting Service in
conducting statistical reporting and service work, including crop
and livestock estimates, statistical coordination and improvements,
and marketing surveys, as authorized by the Agricultural Marketing
Act of 1946 (7 U.S.C. 1621-1627) and other laws, $11,431,000:
Provided, That no part of the funds herein appropriated shall be
available for any expense incident to publishing estimates of apple
production for other than the commercial crop.
Mr. [Ancher) Nelsen [of Minnesota]: Mr. Chairman, I offer an
amendment.
The Clerk read as follows:
Amendment offered by Mr. Nelsen: Page 13, line 20, add the
following: Provided further, That no part of the funds herein
appropriated shall be available for any expense incident to
preparing or publishing either an `adjusted parity ratio' or
any other parity ratios except the parity ratio defined in
section 301 (a) (B) of the Agricultural Adjustment Act of 1938,
as amended.''
Mr. [Jamie L.] Whitten [of Mississippi]: Mr. Chairman, I
reserve a point of order against the amendment. . . .
The Chairman: (5) Does the gentleman from
Mississippi insist upon the point of order?
---------------------------------------------------------------------------
5. Eugene J. Keogh (N.Y.).
---------------------------------------------------------------------------
Mr. Whitten: I do, Mr. Chairman.
The Chairman: The gentleman will state the point of order.
Mr. Whitten: I would point out that here again it is
legislating on an appropriation bill. I would point particularly to
the fact that the law requires the Secretary to make this
determination. Also there are a number of statutes which have to do
with that. I further point out that the precedents support my
contention that this is a limitation on the discretion of an
executive exercised under existing law. This has
[[Page 6350]]
been held on past occasions as legislating on an appropriation
bill.
I say here where the law definitely says that the Secretary of
Agriculture, a cabinet officer, is authorized to make this
determination or issues in his name, which is the same, such orders
or regulations, you prevent him from carrying out duties that are
imposed upon him by law. While it is under the guise of the use of
funds, the effect is to neutralize and deprive the executive
department of the power and authority granted under the law. . . .
Mr. Nelsen: I would like to point out that under the Holman
rule you can legislate on an appropriation bill if you show
retrenchment.
I would like to refer to the language which appears on page 13
to which my amendment has been offered. There the committee itself
states:
That no part of the funds herein appropriated shall be
available for any expense incident to possible estimates of
apple production for other than the commercial crop.
In effect the committee is legislating in this field through
that very language. If my amendment is out of order, so is the
language in this section.
I would like to point out further that I see no restriction on
the Secretary of Agriculture by virtue of my amendment. He can
publish all that he wants, as far as money that is being
appropriated in the various programs is concerned, but the parity
concept is established by law and it should be followed until the
Congress of the United States makes a change.
The Chairman: The Chair is ready to rule. . . .
The Chair will call the attention of the gentleman from
Mississippi to the language cited by the gentleman from Minnesota
appearing on page 13, lines 17 through 20.
The Chair is of the opinion that while the question is always
present as to whether the form of an amendment is in fact a
limitation or whether it is legislation in the guise of a
limitation, the Chair is of the opinion that this amendment
specifically limits the expenditure of the appropriated funds for
any purpose other than that provided by existing law and,
therefore, overrules the point of order.
Restriction on Salary of Employees Performing Certain Tasks
Sec. 67.16 To a bill appropriating funds for the Department of
Agriculture, an amendment providing that none of the funds therein
shall be used to pay the salary of any employee who performs duties
incidental to supporting the price of cotton at a level specified
was held to be a limitation and in order.
On June 6, 1963,(6) the Committee of the Whole was
considering H.R. 6754. The Clerk read as follows, and proceedings
ensued as indicated below:
---------------------------------------------------------------------------
6. 109 Cong. Rec. 10411, 10412, 88th Cong. 1st Sess.
---------------------------------------------------------------------------
Amendment offered by Mr. [Paul] Findley [of Illinois]: Page 33,
after line 12, insert the following:
[[Page 6351]]
``Sec. 607. None of the funds provided herein shall be used to
pay the salary of any officer or employee who negotiates agreements
or contracts or in any other way, directly or indirectly, performs
duties or functions incidental to supporting the price of Upland
Middling Inch cotton at a level in excess of 30 cents a pound.''
Mr. [Jamie L.] Whitten [of Mississippi]: Mr. Chairman, I make a
point of order against the amendment, but I will reserve the point
of order at this time. . . .
Mr. Findley: Mr. Chairman, the legislative history of the
agricultural act of 1958 applied to cotton as well as to feed
grains and very clearly indicated a gradual but steady stepdown in
the level of price supports for cotton.
Secretary Freeman when taking office immediately raised the
level of price supports in direct contradiction of the intent of
the legislative act of 1958. He continued the price supports at
this excessive level. The purpose of my amendment is simply to
withhold funds for payment to any officers or employees of the
department who would be entering into contracts or agreements
providing for this unrealistic price support of more than 30 cents
per pound for upland Middling inch cotton.
Mr. Chairman, I urge support for the amendment on the basis of
that argument. One of the reasons we had the supplemental
appropriation bill for the Commodity Credit Corporation earlier
this year was because the price supports for cotton had been set at
an unrealistic level. I would also like to mention to those who may
not have been in the Chamber earlier today that I had made a
unanimous consent request to return to the language on page 17 of
this bill. That request was objected to so my point of order was
not disposed of by the Chair. I had wished at that time to point
out that we are being asked today to legislate a new type cotton
subsidy program in the appropriation bill. . . .
The Chairman: (7) Does the gentleman from
Mississippi [Mr. Whitten] press his point of order? . . .
---------------------------------------------------------------------------
7. Eugene J. Keogh (N.Y.).
---------------------------------------------------------------------------
Mr. Whitten: Mr. Chairman, I make the point of order on the
basis that the prohibition that would be set up here would require
new duties to be performed in determining who negotiates, whether
their actions constitute negotiations, or whether their actions in
any of these particulars are in such a manner as to have their
salaries not paid, particularly in view of other laws which require
that employees of the Federal Government be paid certain specified
sums.
Mr. Chairman, it does call for new duties and there is no
limitation in its entirety.
The Chairman: The Chair is prepared to rule.
The gentleman from Illinois [Mr. Findley] has offered an
amendment which provides for the insertion of a new section, which
amendment provides in words that none of the funds provided in the
pending bill shall be used to pay the salary of any officer or
employee who does certain things.
In the opinion of the Chair, that constitutes within the rules
of the House a limitation on the funds being appropriated and is a
proper form of limita
[[Page 6352]]
tion. Therefore, the Chair overrules the point of order.
Prohibitions on Salaries of Employees Imposing Certain Demands on
Farmers
Sec. 67.17 An amendment to the Agriculture Department appropriation
bill providing that none of the funds appropriated in such bill
shall be paid out for the salary, per diem allowance, or expenses
of any person who personally or by letter demands that a farmer
join the triple A program as a condition of draft deferment or for
the granting of a priority certificate for any rationed article or
commodity was held a proper limitation merely descriptive of a
certain type of official activity.
On Mar. 23, 1944,(8) the Committee of the Whole was
considering H.R. 4443. The Clerk read as follows:
---------------------------------------------------------------------------
8. 90 Cong. Rec. 2999, 78th Cong. 2d Sess.
---------------------------------------------------------------------------
Amendment offered by Mr. [Forest A.] Harness of Indiana: On
page 65, line 18, after the end of the bracket, strike out the
period and insert ``Provided further, That none of the funds
appropriated in this bill shall be paid out for the salary, per
diem allowance or expenses of any person who personally or by
letter demands that a farmer join the triple A program as a
condition of draft deferment or for the granting of a priority
certificate for any rationed article or commodity.''. . .
Mr. [Malcolm C.] Tarver [of Georgia]: Mr. Chairman, I desire
first to raise the question of whether or not the amendment offered
by the gentleman from Indiana is in order. I conceive that the
amendment requires the performance of additional duties on the part
of employees of the Department, in that, if I understand the
amendment correctly, it would require in the case of all of the
thousands of employees, administrative investigation and
determination to be made as to whether any of those employees had
written a letter or a postal card or done anything in violation of
the requirement of the gentleman's amendment before the salary
check of such employee could be issued for the month for which he
was being compensated. . . .
It certainly seems to me, while it is in the form of a
limitation so as to be in order under the Holman rule, the effect
of this is to require performance of additional duties on the part
of the employees of the Department. For that reason it is
legislative in character and should not be considered in order. . .
.
Mr. Harness of Indiana: I submit that the argument of the
gentleman does not point out anything except that this is a
limitation. It does not require any duty on the part of any of the
A.A.A. officials. It simply prohibits payment when this thing has
been done. It simply acts as a safeguard so that the A.A.A.
officials who want to enforce this act, who do not want these
things to be done, could withhold payment when it has been done.
[[Page 6353]]
Mr. Tarver: Mr. Chairman, will the gentleman yield?
Mr. Harness of Indiana: I yield.
Mr. Tarver: How are those authorized to pay the salaries of
these employees to ascertain whether these employees have written a
letter or a postal card as prohibited in the gentleman's amendment?
Will it not be necessary to make an investigation in each case
every month?
Mr. Harness of Indiana: No; of course it would not. If this
amendment is adopted it will stop this practice. These people will
not do it.
Mr. Tarver: The gentleman is just figuring on everybody being
good because he tells them to be?
Mr. Harness of Indiana: Well, that is true. If your argument is
sound, any limitation will require the same thing.
The Chairman: (9) The Chair is prepared to rule. The
proviso offered by the gentleman from Indiana [Mr. Harness] in the
opinion of the Chair is a limitation and the point of order is
overruled.
---------------------------------------------------------------------------
9. William M. Whittington (Miss.).
---------------------------------------------------------------------------
Prohibition on Salary to Employees Who Make Certain Loans
Sec. 67.18 A section of the Agriculture Department appropriation bill
providing in part that no part of any appropriation in this act or
authorized hereby to be expended shall be used to pay compensation
or expenses of any officer or employee engaged in making loans
under the provisions of section 201(e) of the Emergency Relief and
Construction Act of 1932 was held a proper limitation and in order.
On Apr. 19, 1943,(10) the Committee of the Whole was
considering H.R. 2481. The Clerk read as follows:
---------------------------------------------------------------------------
10. 89 Cong. Rec. 3597, 78th Cong. 1st Sess.
---------------------------------------------------------------------------
Sec. 2. No part of any appropriation contained in this act or
authorized hereby to be expended shall be used to pay the
compensation or expenses of any officer or employee of the
Department of Agriculture, or any bureau, office, agency, or
service of the Department, or any corporation, institution, or
association supervised thereby, who engages in, or directs, or
authorizes any other officer or employee of the Department, or any
such bureau, office, agency, service, corporation, institution, or
association to engage in, the making of loans under the provisions
of section 201(e) of the Emergency Relief and Construction Act of
1932 (12 U.S.C. 1148), as amended, or the making of loans or
advances in accordance with the terms and conditions set forth in
food production financing bulletins F-1 or F-2 of the Farm Credit
Administration operating under the Food Production Administration,
Production Loan Branch.
Mr. [Clifford R.] Hope [of Kansas]: Mr. Chairman, I make a
point of order against the section just read on the ground it is
legislation on an appropriation bill. . . .
[[Page 6354]]
This section has for its apparent purpose a prohibition of
further loans by the Regional Agricultural Credit Corporation.
There is no provision in this bill making an appropriation for this
corporation. So the limitation on its face is against officials of
the Department of Agriculture who might exercise supervisory
functions over it and its activities.
The Regional Agricultural Credit Corporations were created in
1932 under the Hoover administration. There were originally 12
corporations, 1 in each Federal land bank district. Later
legislation was passed which authorized the consolidation of the
Regional Agricultural Credit Corporations and the return of capital
not needed to the Reconstruction Finance Corporation to be held as
a revolving fund subject to the Governor of the Farm Credit
Administration.
In the meantime, and on March 27, 1933, an Executive order was
issued which transferred the jurisdiction and control of the
regional agricultural credit corporations from the Reconstruction
Finance Corporation, under whose jurisdiction they had originally
been set up, to the Farm Credit Administration, and in that order
the functions which were transferred were defined as follows:
The functions of the Reconstruction Finance Corporation and
its board of directors relating to the appointment of officers
and agents to manage regional agricultural credit corporations
formed under section 201(e) of the Emergency Relief and
Construction Act of 1932; relating to the establishment of
rules and regulations for such management and relating to the
approval of loans and advances made by such corporations and of
the terms and conditions thereof.
Under that Executive order and under the law it is the duty and
the function of the Farm Credit Administration to make rules and
regulations to supervise the operations of the regional
agricultural credit corporations and to approve loans made by them.
I think it is generally recognized under the rules of the House
that any language purporting to be a limitation which either
imposes new duties upon a Government agency or prohibits it from
performing the duties which have been assigned to it is not a
limitation but is legislation.
In this particular case the Farm Credit Administration is
prohibited or rather its officers are prohibited under the
legislation from directing or authorizing the Regional Agricultural
Credit Corporation, to make loans and perform the other functions
that are imposed upon it by law. That being the case, it is
apparent that the officials of the Farm Credit Administration will
be unable to carry out their duties in supervising the operations
of the corporation, in approving loans, and other duties which have
been assigned to them.
It can very readily be determined that this is legislation, I
think, by considering the interpretation which officials of the
Farm Credit Administration will place upon our action if the
section remains in the bill. Certainly they would understand it to
mean that Congress no longer expected them to carry on the
functions which under the law they are to exercise over the
Regional Agricultural Credit Corporation. In other words they will
conclude that
[[Page 6355]]
Congress had changed its policy and has forbidden them to do what
heretofore under the law they have been authorized and directed to
do. That, Mr. Chairman, in my opinion very clearly constitutes
legislation. . . .
Mr. [Everett M.] Dirksen [of Illinois]: Mr. Chairman, I merely
want to submit to the Chair the very purpose of the limitation is
to prevent the expression of a certain task, function, or duty. It
may never achieve that result, as a matter of fact, in substance,
but that is its primary purpose. So I submit this is a very good
limitation and quite within the rules and does not constitute
legislation.
The Chairman: (11) The Chair is ready to rule. . . .
---------------------------------------------------------------------------
11. William M. Whittington (Miss.).
---------------------------------------------------------------------------
It is the view of the Chair this section is clearly a
limitation, and if there are no funds provided in this section the
limitation will be ineffective. The Chair overrules the point of
order.
Incidental Additional Duties (Crop Support Payments--Limitation on Type
of Program)
Sec. 67.19 An amendment to a general appropriation bill which is
strictly limited to funds appropriated in the bill, and which is
negative and restrictive in character and prohibits certain uses of
the funds, is in order as a limitation even though its imposition
will change the present distribution of funds and require
incidental duties on the part of those administering the funds.
On May 26, 1969,(12) the Committee of the Whole was
considering H.R. 11612, a Department of Agriculture appropriation. An
amendment was offered by Mr. Silvio O. Conte, of Massachusetts:
---------------------------------------------------------------------------
12. 115 Cong. Rec. 13757-59, 91st Cong. 1st Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
Amendment offered by Mr. Conte: On page 22, line 17, strike
the period and insert the following: ``: Provided further, That
no part of the funds appropriated by this Act shall be used to
formulate or carry out any price support program (other than
for sugar) under which payments aggregating more than $20,000
under all such programs are made to any producer on any crops
planted in the fiscal year 1970.''
Mr. [Jamie L.] Whitten [of Mississippi]: Mr. Chairman, I
reserved a point of order. . . .
. . . [T]his subject has been discussed a number of times.
There are several new features in this amendment that have not been
included in previous amendments.
Congress set up the Commodity Credit Corporation as a
corporation so that it could act as such. It gets its authority
from several sources. One is borrowing authority granted by the
Congress on the recommendation of the Banking and Currency
Committee. Another is the sale of commodities on hand. The
Corporation is given the right to sue and be sued. It is given
[[Page 6356]]
the right to conduct itself in all ways as a corporation. . . .
So I respectfully submit that in the absence of a law repealing
the Government Corporation Control Act and the charter of the
Commodity Credit Corporation, under which it was given certain
functions and commitments, that we would have to change that act in
order to limit its functions. . . .
We say in our report that if Mr. Conte's amendment should be
adopted, or Mr. Findley's, and if out of the funds in this bill the
Corporation can pay only $20,000, we say that the Corporation would
still have to do what its charter authorizes and binds it to do--
because they have these contracts--and that is to go ahead and pay
the remainder, over and above $20,000, out of other moneys they
have. . . . The Corporation's charter provides its authority. We
have not amended that charter. We passed legislation letting us
supervise its activities, but in that law permitting us to survey
it, it says nothing shall be done to keep that corporation from
carrying out its functions under its charter.
The Chairman: (13) The Chair is prepared to rule.
---------------------------------------------------------------------------
13. James C. Wright, Jr. (Tex.).
---------------------------------------------------------------------------
The gentleman from Massachusetts (Mr. Conte) has offered an
amendment against which the gentleman from Mississippi (Mr.
Whitten) has made a point of order on the ground that the amendment
constitutes legislation on an appropriation bill in violation of
clause 2 of rule XXI.
As the gentleman from Mississippi points out and as was further
pointed out by the gentleman from Massachusetts, amendments almost
exactly identical to that offered by the gentleman from
Massachusetts have been offered on numerous previous occasions, as
early as 1959 and as recently as May 1, 1968. On several of those
occasions points of order have been raised against this amendment
or its equivalent on similar grounds. On all of those previous
occasions the occupants of the chair have held that the amendment
is a valid limitation on funds appropriated by the bill, and on all
of those occasions the point of order has been overruled. The Chair
has had occasion to observe the elaborate and scholarly argument
presented on May 1, 1968, by the gentleman from Mississippi (Mr.
Whitten), and to hear his further argument today. The gentleman
from Mississippi (Mr. Whitten) contends that the amendment would
limit and restrict the activities of a Government corporation
created and regulated by other law and that therefore constitutes
legislation. The Chair finds on the face of the amendment that what
it limits and restricts is the application of funds appropriated in
this bill to a Government corporation, and as such the Chair
believes that it falls well within the rulings by Chairman Kilday
in 1959, by Chairman Harris on January 26, 1965, and by Chairman
Corman on two occasions, June 6, 1967, and May 1, 1968. The Chair
therefore holds that the amendment is a valid limitation on the
funds appropriated in the bill and therefore overrules the point of
order.
Sec. 67.20 An amendment to a general appropriation bill which is
negative in character and which prohibits,
[[Page 6357]]
during the fiscal year covered by the bill, certain uses of the
funds therein to carry out a program whose duration extends beyond
that fiscal year, is in order as a limitation, even though its
imposition would require incidental duties on the part of those
administering the funds.
On June 9, 1970,(14) during consideration in the
Committee of the Whole of the Department of Agriculture appropriation
bill for fiscal 1971 (H.R. 17923), a point of order was raised against
the following amendment:
---------------------------------------------------------------------------
14. 116 Cong. Rec. 18997, 18998, 91st Cong. 2d Sess.
See also 117 Cong. Rec. 21634-36, 92d Cong. 1st Sess., June
23, 1971 [H.R. 9270, agriculture, environmental, and consumer
protection appropriations for fiscal 1972].
---------------------------------------------------------------------------
Mr. [Paul] Findley [of Illinois]: Mr. Chairman, I offer an
amendment.
The Clerk read as follows:
Amendment offered by Mr. Findley: On page 23, line 8, after
the word ``regulations,'' strike the period, add a colon and
the following:
``Provided further, That none of the funds appropriated by
this act shall be used during the period ending June 30, 1971
to formulate or carry out any 1971 crop-year program under
which the total amount of payments to a person under such
program could be in excess of $20,000.''
Mr. [Jamie L.] Whitten [of Mississippi]: Mr. Chairman, I
reserve a point of order on the amendment. . . .
The Chairman: (15) Does the gentleman from
Mississippi desire to be heard on his point of order?
---------------------------------------------------------------------------
15. James C. Wright, Jr. (Tex.).
---------------------------------------------------------------------------
Mr. Whitten: I do, Mr. Chairman.
If the Chair will note, the amendment is offered to a
particular section of the bill, but the language provides that
``none of the funds appropriated by this act,'' so it is a
limitation, which means it applies to the Commodity Credit
Corporation. The Commodity Credit Corporation was created under the
laws of Delaware in 1933. It was given the power, it was given the
right, and it was given the obligation of making payments, to make
loans under the Corporation Control Act, and it was provided that
nothing in that act should let the Congress prevent the corporation
from discharging its functions. I might say the same thing applies
to the TVA.
I respectfully, therefore, submit, Mr. Chairman, that to change
the Corporation Control Act and to relieve it of its
responsibilities which have been carefully protected by the
Congress on at least two occasions, even in the Anti-Deficiency
Act, which was some years later, would take legislation. It can
only be done that way, and since it would require legislation to
change it, anything that has that effect here of necessity must be
legislation.
The Chairman: Does the gentleman from Illinois desire to be
heard on the point of order?
Mr. Findley: I do, Mr. Chairman.
Mr. Chairman, I rise in opposition to the point of order. This
is the similar
[[Page 6358]]
argument that has been extended by the gentleman from Mississippi
on several previous occasions. One such occasion was January 26,
1965; another occasion was June 6, 1967, and another occasion
related to an amendment offered by the gentleman from Massachusetts
(Mr. Conte) on May 26, 1969.
On each of those occasions the limitation went to the entire
act, as does this amendment. It stated on each occasion that ``no
part of this appropriation shall be used, or none of the funds
appropriated by this act,''--language of that sort. The language
applies to administrative salaries of ASDA organizations. The
limitation is clearly negative on its face. It clearly shows
retrenchment, the reduction in spending, and, therefore is entirely
within the Holman rule, and I believe it is completely in order.
The Chairman: The Chair is prepared to rule.
As the gentleman from Illinois declares, the point of order and
the arguments supporting it have been offered on previous
occasions, and on occasion by the gentleman from Mississippi, as
recently as the 26th of May last year.
This point was made last year with respect to an amendment
offered by the gentleman from Massachusetts (Mr. Conte), which,
while not identical, is, in the opinion of the Chair, sufficiently
similar to the presently offered amendment, as to govern.
On that occasion the gentleman from Massachusetts offered an
amendment which would have provided:
That no part of the funds appropriated by this Act shall be
used to formulate or carry out any price support program (other
than for sugar) under which payments aggregating more than
$20,000 under all such programs are made to any producer on any
crops planted in the fiscal year 1970.
On the basis of previous rulings of the Chair, it is the
opinion of the present occupant of the chair, that the amendment
offered by the gentleman from Illinois is a limitation on an
appropriation bill and is therefore in order.
The point of order is overruled.
Sec. 67.21 An amendment to a general appropriation bill which is
negative in character and which prohibits, during the fiscal year
covered by the bill, certain uses of the funds therein to carry out
a program whose duration extends beyond that fiscal year, is in
order as a limitation even though its imposition might require
incidental duties (not contemplated in the legislation establishing
the administrative agency) on the part of those administering the
funds.
On June 29, 1972,(16) during consideration in the
Committee of the Whole of a general appropriation bill (H.R. 15690), a
point of order was raised against the following amendment:
---------------------------------------------------------------------------
16. 118 Cong. Rec. 23353-55, 92d Cong. 2d Sess.
---------------------------------------------------------------------------
Amendment offered by Mr. [Silvio O.] Conte [of Massachusetts]:
[[Page 6359]]
On page 19, line 21, strike the period and insert the
following: ``And provided further, That none of the funds
appropriated by this act shall be used during the fiscal year
ending June 30, 1973, to formulate or carry out any single 1973
crop-year price support program (other than for sugar and wool)
under which the total amount of payments to a person under any such
program would be in excess of $20,000.''
Mr. [Jamie L.] Whitten [of Mississippi]: Mr. Chairman, I
reserve a point of order on the amendment.
The Chairman: (17) The gentleman from Mississippi
reserves a point of order against the amendment. . . .
---------------------------------------------------------------------------
17. James C. Wright, Jr. (Tex.).
---------------------------------------------------------------------------
Does the gentleman from Mississippi desire to address himself
to his point of order?
Mr. Whitten: I do, Mr. Chairman. . . .
As to my point of order, Mr. Chairman, the amendment, to which
I make the point of order, goes to tying strings on the Commodity
Credit Corporation. The Commodity Credit Corporation at the present
time is a creature of statutory law originally created and
incorporated under the laws of the State of Delaware. It was made
into a corporation so that it could perform and discharge all of
the duties of a corporation, that is, sue and be sued. It had an
independence created by statute. With time the Congress made it a
U.S. corporation and brought forward the provisions which are
incorporated in the Corporation Control Act. It appears in the
compilation of statutes of February 17, page 154, 69 Stat. 1007.
In addition, the Commodity Credit Corporation by law and in the
law is created for the purpose of stabilizing, supporting, and
protecting farm income.
The Chairman: The Chair is prepared to rule.
The gentleman from Massachusetts has offered an amendment to
which the gentleman from Mississippi has made a point of order on
the ground that it would constitute legislation on the pending
appropriation bill, and thus be in violation of clause 2, rule XXI.
There have been at least six rulings on points of order offered
against similar or identical amendments in recent years.
Chairman Kilday in 1959, Chairman Harris in 1965, Chairman
Corman in 1967 and 1968, and the present occupant of the chair in
1969, 1970, and 1971.
All have ruled on similar points of order. On each occasion the
amendments have been held to be in order as being limitations on an
appropriation bill.
In the present instance, the Chair has examined the amendment
and is of the opinion that it applies only to funds which would be
appropriated in the pending appropriation bill and that it does no
more than limit the use or application of the funds made available
in the pending bill.
Therefore, consistent with the precedents that the Chair has
cited, the Chair holds that the amendment is in order as a
limitation on an appropriation bill and the point of order is
overruled.
Commodity Credit Corporation, Employee Salary
Sec. 67.22 Language in an appropriation bill providing that
[[Page 6360]]
none of the funds therein shall be used to pay any employee of the
Department of Agriculture who serves as a member of the Board of
Directors or as an officer of the Commodity Credit Corporation was
held to be a negative limitation and in order, though indirectly
effecting a change in policy.
On May 11, 1960,(18) the Committee of the Whole was
considering H.R. 12117, an Agriculture Department appropriation bill.
The Clerk read as follows:
---------------------------------------------------------------------------
18. 106 Cong. Rec. 10053, 10054, 86th Cong. 2d Sess. See also
Sec. Sec. 52, 53, supra, for discussion of proposed language in
appropriation bills as imposing additional duties on officials.
---------------------------------------------------------------------------
Sec. 408. No part of the funds appropriated by this Act shall
be used to pay the compensation of any employee or officer of the
Department, except the Secretary of Agriculture, who, in addition
to other regularly assigned responsibilities, serves as a member of
the Board of Directors or as an officer of the Commodity Credit
Corporation after February 1, 1961.
Mr. [Paul] Brown of Georgia: Mr. Chairman, a point of order.
The Chairman: (19) The gentleman will state it.
---------------------------------------------------------------------------
19. Paul J. Kilday (Tex.).
---------------------------------------------------------------------------
Mr. Brown of Georgia: . . . This reverses a decision made by
the Banking and Currency Committee and the Congress in 1949, when
the CCC Charter Act was amended to strike out a similar restriction
which had been enacted in 1948. It is, therefore, legislation, and
the mere fact it is put in the form of a limitation on the use of
funds appropriated by the bill does not save it. As paragraph 1691,
volume 7, of Cannon's Precedents of the House of Representatives
puts it:
The purpose rather than the form of a proposed limitation
is the proper criterion by which its admissibility should be
judged, and if its purpose appears to be a restriction of
executive discretion to a degree that may be fairly termed a
change of policy rather than a matter of administrative detail
it is not in order.
Again in paragraph 1606 of the same volume, the following is
found:
Whenever a purported limitation makes unlawful that which
before was lawful or makes lawful that which before was
unlawful it changes existing law and is not in order on an
appropriation bill.
A proper limitation is negative and in the nature of a
veto, and when it assumes affirmative form by direction to an
executive in the discharge of his duties under existing law it
ceases to be a limitation and becomes legislation.
Section 408 in effect requires the Secretary to take
affirmative action. To carry out the farm programs financed by CCC,
the Secretary would have to appoint new Board members, recruited
from private life, to replace the six Department officers other
than himself who now serve on the Board. He would also have to
recruit and appoint new personnel to serve as officers of the
Corporation. This not only means the section constitutes
legislation, but also means it is not entitled to the protec
[[Page 6361]]
tion of the Holman rule, because it would not save the Government
money. On the contrary, it would require hiring new employees at
additional expense to the Government. . . .
Mr. [Jamie L.] Whitten [of Mississippi]: Mr. Chairman, the
section clearly provides a limitation on the use of funds that are
appropriated in this bill. It does not change the Commodity Credit
Corporation charter. It does not change any basic law. It just
simply limits what the money in this bill can be used for. It has
been my experience and observation during the years here that the
Chair has many times said that it is a negative limitation on the
use of money and that it is clearly in order, and on that I rest
the committee's position.
The Chairman: The Chair is prepared to rule. . . .
The Chair has had an opportunity to examine the precedents in
this connection, including the precedents to which the gentleman
from Georgia has referred and from which he has read. The Chair
would also refer to paragraph 1694 of Cannon's Precedents, volume
7, the language being:
While a limitation may not involve change of existing law
or affirmatively restrict executive direction, it may properly
effect a change of administrative policy and still be in order.
The Chair has examined additional precedents bearing on this
question. The Chair is constrained to hold that section 408 is a
restriction on a manner in which the funds can be used, and
constitutes a negative limitation, and, therefore, overrules the
point of order.
Parliamentarian's Note: A discussion comparing the precedents cited
above, 7 Cannon's Precedents Sec. Sec. 1691 and 1694 can be found in
Sec. 51, supra. An issue suggested by the debate on May 11, 1960, is
whether language in an appropriation bill should be ruled out if it may
lead prospectively or indirectly to the imposition of duties on
officials, by the operation of other laws. The ruling suggests that
only where the duties are imposed directly by the language of the
provision in question is it subject to a point of order.
``Stream Channelization
Sec. 67.23 An amendment to an appropriation bill prohibiting the use of
funds therein for stream channelization projects under the
Secretary of Agriculture unless construction had begun by a date
certain was held not to impose additional affirmative duties on the
Secretary and in order as a limitation on the use of funds in the
bill.
On June 23, 1971,(20) during consideration in the
Committee of the Whole of a general appropriation bill (H.R. 9270), a
point of
[[Page 6362]]
order was raised against the following amendment:
---------------------------------------------------------------------------
20. 117 Cong. Rec. 21648, 21649, 92d Cong. 1st Sess.
---------------------------------------------------------------------------
Amendment offered by Mr. [Henry S.] Reuss [of Wisconsin]: On
page 37, immediately after line 25, insert the following:
``Stream Channelization
``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 such channelization is in a project a part of
which was in the project construction stage before July 1, 1971.''
Mr. [Jamie L.] Whitten [of Mississippi]: Mr. Chairman, I
reserve a point of order to the amendment. . . .
Mr. Chairman, I recognize that the Chair, in the other ruling
pointed up the section which was dropped. That being sufficient, I
take it, the Chair did not feel any need to study the other parts.
Since it was going out on one ground there was no need to study the
others.
The part that is left says that ``under any program
administered by the Secretary of Agriculture.''
The program, apparently, that this is directed to is the Soil
Conservation projects. I would respectfully call the attention of
the Chair to the fact that these are two things which must be done
on these projects. The Department of Agriculture does not have any
right of eminent domain in order to get ground on which to build
these projects. Under the law there is required a local sponsor,
who in most cases is a drainage or similar district, which in turn
issues bonds or borrows money, with which they buy rights-of-way.
Those rights-of-way having been bought, this comes under the
administration of the Soil Conservation Service.
In this instance, with all these projects throughout the United
States, in most cases they have to be approved by the local courts,
which have to determine whether all of the requirements of the law
have been carried out.
This would be imposing upon the Secretary of Agriculture the
duty to go into each of those instances and to see whether that
project was, as we quote here, ``A part of which was in project
construction stage before July 1, 1971.'' Those things do not come
to the Secretary of Agriculture. They are handled, as I pointed
out, in the initial stage at the local level with a local
sponsorship and approved by local courts.
I say here this would be imposing additional duties on the
Secretary of Agriculture not imposed on him by existing law. This
again, although not pointed up by the Chair in the earlier ruling,
would make it subject to a point of order. . . .
Mr. [Robert E.] Jones of Alabama: Mr. Chairman, the amendment
that goes to the appropriation item is one carried in Public Law
566. In that Public Law there are certain requirements which are
made upon all of the political subdivisions which are participants
under that existing law.
The Chair has just ruled that that requirement, the Cooper
Decision, such as the Chair just ruled upon, would put an
additional burden or an addi
[[Page 6363]]
tional requirement on the administrative offices and would be an
infringement upon the legislative function, which should not be
carried in an appropriation act.
Here is the situation. The situation is such that this
amendment goes into an infinite requirement.
Suppose the amendment had said, ``The Soil Conservation Service
should not use a soil depleting plant and it should require not
fescue but say four-leaf clover.'' That would be just as sensible
as the amendment offered by the gentleman from Wisconsin.
I do not know how the administrative officer assigned the
duties under Public Law 566 is going to be responsible, when the
amendment offered by the gentleman from Wisconsin is going to tell
him how to function, how much water to use, how much plant leaf, or
how much forestation, and all the varieties of programs that are
employed in the total scheme and development of the overall
program. It does not make sense to me that we are going to have
amendments offered here that are going to tell administrative
agencies how much they are going to employ in a certain area, for
geographical distribution, and how they are going to develop a
sound and sensible program.
Now, Mr. Chairman, all of us aspire to develop all of the
advantages of our resources. We are totally dedicated to the
proposition. There is not a single one of us here who is not as
anxious as he can be to accomplish this, or who wants to deplete,
dissipate or misuse the water resources of our country. I think we
are all in unity on that, but I would hate to see us come up here
and fragment the total programs that have been so far established
by the various committees of the Congress and thereby lose our grip
on the total water resources of this country. I cannot think of
anything worse, or any situation that would create more disunity
and create a greater loss of hope that we can work together in the
development of these programs in the future.
Mr. Chairman, I hope that the point of order raised by the
gentleman from Mississippi to the amendment will be sustained. . .
.
Mr. Reuss: . . . This amendment is entirely germane. It is
within all of the precedents as a limitation on an appropriation.
It requires no duties on the part of the Secretary of Agriculture
other than for him to show up at the office in the morning and find
out what projects have been started. If they have been started, my
amendment would not touch them. Accordingly I hope that the point
of order will be ruled against.
The Chairman: (1) The Chair is ready to rule.
---------------------------------------------------------------------------
1. James C. Wright, Jr. (Tex.).
---------------------------------------------------------------------------
The Chair feels that the burden, if any, which is imposed on
the Secretary of Agriculture or any administrator in the present
amendment offered by the gentleman from Wisconsin is clearly
different from that on the basis of which the Chair ruled that the
amendment previously offered would be legislation on an
appropriation bill, and would, therefore, be out of order. The
Chair believes that this present amendment before the House follows
the pattern of limitation on an appropriation bill, and that it
does not constitute new legislation. Therefore the Chair overrules
the point of order.
[[Page 6364]]
Parliamentarian's Note: On the same day, a provision requiring
state approval of certain projects was ruled out as legislation. See
Sec. 53.6, supra; see also the note following Sec. 53.6.
Removal of Dollar Limit on Building Cost; No Authorization Ceiling
Sec. 67.24 A provision in the general appropriation bill, 1951,
providing that no part of the appropriation shall be used (by the
Secretary of Agriculture under the Research and Marketing Act) for
beginning construction of any building costing in excess of
$15,000, except that a poultry breeding house may be constructed at
Purdue University at a cost of not to exceed $29,000, was held to
be a limitation and in order inasmuch as the authorization for such
projects contained no ceiling on such expenditures.
On Apr. 27, 1950,(2) the Committee of the Whole was
considering H.R. 7786. A provision therein provided that no part of the
appropriation shall be used [by the Secretary of Agriculture under the
Research and Marketing Act] for beginning construction of any building
costing in excess of $15,000, except that a poultry breeding house may
be constructed at Purdue University at a cost of not to exceed $29,000.
A point of order was made, as follows:
---------------------------------------------------------------------------
2. 96 Cong. Rec. 5910, 5911, 81st Cong. 2d Sess.
---------------------------------------------------------------------------
Mr. [Kenneth B.] Keating [of New York]: Mr. Chairman, I make a
point of order against the language appearing in lines 15 to 17 on
page 157, reading ``Except that a poultry breeding house may be
constructed at Purdue University,'' on the ground that it is
legislation in an appropriation bill.
The Chairman: (3) Does the gentleman from
Mississippi desire to be heard on the point of order?
---------------------------------------------------------------------------
3. Jere Cooper (Tenn.).
---------------------------------------------------------------------------
Mr. [Jamie L.] Whitten [of Mississippi]: Yes, Mr. Chairman. Mr.
Chairman, I wish to call attention to the fact that under the
Research and Marketing Act, section 7-A, 7 United States Code
427(h), the Department of Agriculture is authorized to construct
agricultural buildings without limitation on the amounts. This
committee has put restrictions heretofore on these amounts, fixing
the individual amount at $15,000 per unit. We carry that provision
with the exception that in this instance we let them go above it.
It traces back to the legislative authorization in the Research
and Marketing Act under which they have authority to build such
houses without any limitation.
In effect this is a limitation.
The authorization [now 7 U.S.C. 361(d)] reads as follows:
[[Page 6365]]
The money appropriated in pursuance of this title shall
also be available for the purchase or rental of land and the
construction and acquisition of buildings necessary for
conducting research provided for in this title.
In effect this is a limitation fixing the amount they may spend
for this purpose.
The Chairman: . . . The Chair has examined the provisions of
existing law cited by the gentleman from Mississippi and invites
attention to the fact that the first part of this paragraph appears
clearly to be a limitation and the latter part of the paragraph
appears to be an exception to the limitation for a purpose
authorized by law.
The Chair, therefore, overrules the point of order.
Price Support Programs; Limit on Single Payments
Sec. 67.25 To a paragraph of a bill making appropriations for parity
payments, an amendment limiting such payments to any person or
corporation to $1,000 was held a proper limitation restricting the
availability of funds and in order.
On Mar. 9, 1942,(4) the Committee of the Whole was
considering H.R. 6709, an Agriculture Department appropriation bill.
The Clerk read as follows, and proceedings ensued as indicated below:
---------------------------------------------------------------------------
4. 88 Cong. Rec. 2114, 2115, 77th Cong. 2d Sess.
---------------------------------------------------------------------------
Amendment offered by Mr. (Jed) Johnson of Oklahoma: On page 75,
line 13, after ``Government'' and before the period, insert the
following: ``: Provided further, That no payment or payments
hereunder to any one person or corporation shall be in excess of
the total sum of $1,000.''
In response to a point of order made by Mr. William M. Whittington,
of Mississippi, the Chairman (5) made the following ruling:
---------------------------------------------------------------------------
5. Robert Ramspeck (Ga.).
---------------------------------------------------------------------------
From Cannon's Procedure, on page 61, the Chair reads the
following:
The House in Committee of the Whole has the right to refuse
to appropriate for any object either in whole or in part, even
though that object may be authorized by law. That principle of
limitation has been sustained so repeatedly that it may be
regarded as part of the parliamentary law of the Committee of
the Whole.
That was a ruling made by Mr. Chairman Nelson Dingley, of
Maine, January 17, 1896. The present amendment against which the
point of order has been made undertakes to limit payments which
have heretofore been provided for by law. In the opinion of the
Chair, the amendment is a limitation; and, therefore, the Chair
overrules the point of order.
Limits on Payments or Loans Under Farm Program
Sec. 67.26 To an appropriation bill providing funds for pro
[[Page 6366]]
grams operated by the Commodity Credit Corporation, and permitting
a transfer of certain corporation funds to those programs, an
amendment providing that no funds in the act be used for price
support programs under which payments to producers exceed specified
amounts was held in order as a limitation restricting the
availability of funds.
On May 26, 1969,(6) the Committee of the Whole was
considering H.R. 11612, a Department of Agriculture appropriation bill.
During consideration, the Chair overruled a point of order against a
substitute amendment, as indicated below:
---------------------------------------------------------------------------
6. 115 Cong. Rec. 13762, 13763, 91st Cong. 1st Sess.
---------------------------------------------------------------------------
Substitute amendment offered by Mr. [Albert H.] Quie [of
Minnesota]: On page 22, line 17, strike the period and insert the
following: ``: Provided further, That no part of the funds
appropriated by this Act shall be used to formulate or carry out
any price support program on cotton, wheat, or feed grains planted
during the fiscal year 1970 under which payments to any single
producer exceed an amount determined as follows: [A table of
payments was inserted here.]
Mr. [Jamie L.] Whitten [of Mississippi]: Mr. Chairman, I make a
point of order.
The Chairman: (7) The gentleman will state his point
of order.
---------------------------------------------------------------------------
7. James C. Wright, Jr. (Tex.).
---------------------------------------------------------------------------
Mr. Whitten: It is legislation on an appropriation bill, and
requires additional duties.
The Chairman: Does the gentleman from Minnesota desire to be
heard on the point of order?
Mr. Quie: Yes, I do, Mr. Chairman.
I believe this amendment is in order, because the opening
language is identical with that of the Conte amendment. The only
difference is that where his cutoff is at $20,000 mine provides for
a graduation or scaling down of the cutoff above that. It applies
only to the funds in this act and is a limitation on the funds in
this act. Therefore, Mr. Chairman, I believe it is in order.
The Chairman: The Chair is ready to rule.
For reasons declared in a previous ruling the Chair is going to
hold that the substitute amendment offered by the gentleman from
Minnesota (Mr. Quie), is a limitation on the appropriation and is
therefore in order. The Chair overrules the point of order.
Sec. 67.27 To an appropriation bill providing funds for programs
operated by the Commodity Credit Corporation, and permitting a
transfer of certain corporation funds to those programs, an
amendment specifying that no funds appropriated by the act be used
to formulate or carry out price support programs which include
payments in excess of $20,000 to any producer, was held in order as
a limitation restricting the availability of funds.
[[Page 6367]]
On May 26, 1969,(8) the Committee of the Whole was
considering H.R. 11612, a Department of Agriculture appropriation bill.
The following amendment was offered:
---------------------------------------------------------------------------
8. 115 Cong. Rec. 13757-59, 91st Cong. 1st Sess.
---------------------------------------------------------------------------
Amendment offered by Mr. [Silvio O.] Conte [of Massachusetts]:
On page 22, line 17, strike the period and insert the following:
``: Provided further, That no part of the funds appropriated by
this Act shall be used to formulate or carry out any price support
program (other than for sugar) under which payments aggregating
more than $20,000 under all such programs are made to any producer
on any crops planted in the fiscal year 1970.''
In response to a point of order against the amendment, the
Chairman, James C. Wright, Jr., of Texas, ruled as follows:
The gentleman from Massachusetts (Mr. Conte) has offered an
amendment against which the gentleman from Mississippi (Mr.
Whitten) has made a point of order on the ground that the amendment
constitutes legislation on an appropriation bill in violation of
clause 2 of Rule XXI.
As the gentleman from Mississippi points out and as was further
pointed out by the gentleman from Massachusetts, amendments almost
exactly identical to that offered by the gentleman from
Massachusetts have been offered on numerous previous occasions, as
early as 1959 and as recently as May 1, 1968. On several of those
occasions points of order have been raised against this amendment
or its equivalent on similar grounds. On all those previous
occasions the occupants of the chair have held that the amendment
is a valid limitation on funds appropriated by the bill, and on all
of those occasions the point of order has been overruled. The Chair
has had occasion to observe the elaborate and scholarly argument
presented on May 1, 1968, by the gentleman from Mississippi (Mr.
Whitten), and to hear his further argument today. The gentleman
from Mississippi (Mr. Whitten) contends that the amendment would
limit and restrict the activities of a Government corporation
created and regulated by other law and that therefore constitutes
legislation. The Chair finds on the face of the amendment that what
it limits and restricts is the application of funds appropriated in
this bill to a Government corporation, and as such the Chair
believes that it falls well within the rulings by Chairman Kilday
in 1959, by Chairman Harris on January 26, 1965, and by Chairman
Corman on two occasions, June 5, 1967, and May 1, 1968. The Chair
therefore holds that the amendment is a valid limitation on the
funds appropriated in the bill and therefore overrules the point of
order.
Sec. 67.28 The Committee of the Whole having stricken from an
appropriation bill one limitation on compensation under an acreage
reserve program, an amendment proposing another limitation of
compensation to any one producer to $5,000 under
[[Page 6368]]
such program was held to be in order and a proper limitation.
On May 15, 1957,(9) the Committee of the Whole was
considering H.R. 7441, an Agriculture Department appropriation bill.
The Clerk read as follows:
---------------------------------------------------------------------------
9. 103 Cong. Rec. 7023, 7033, 7034, 85th Cong. 1st Sess.
---------------------------------------------------------------------------
Acreage Reserve, Soil Bank
For necessary expenses to carry out an acreage reserve program
in accordance with the provisions of subtitles A and C of the Soil
Bank Act (7 U.S.C. 1821-1824 and 1802-1814), $60,000,000: Provided,
That no part of this appropriation shall be used to formulate and
administer an acreage reserve program which would result in total
compensation being paid to producers in excess of $500,000,000 with
respect to the 1958 crops.
Mr. [Burr P.] Harrison of Virginia: I offer an amendment.
The Clerk read as follows:
Amendment offered by Mr. Harrison of Virginia: On page 21,
strike out all following the word ``program'' in line 2 and
strike out all of line 3. . . .
So the amendment was agreed to.
Mr. [Henry S.] Reuss [of Wisconsin]: Mr. Chairman, I offer an
amendment.
The Clerk read as follows:
Amendment offered by Mr. Reuss: On page 21, line 4, change
the period to a comma and add the following: ``or in total
compensation being paid to any one producer in excess of $5,000
with respect to the 1958 crops.''. . .
Mr. H. Carl Andersen [of Minnesota]: Mr. Chairman, a point of
order.
The Chairman: (10) he gentleman will state it.
---------------------------------------------------------------------------
10. Paul J. Kilday (Tex.).
---------------------------------------------------------------------------
Mr. H. Carl Andersen: The gentleman's amendment, as just
reported, affects a section of the bill already stricken by the
amendment just agreed to, and furthermore I see no reason for any
further discussion upon this particular amendment. . . .
The Chairman: Upon what grounds does the gentleman make his
point of order?
Mr. H. Carl Andersen: That the language to which this amendment
applies has already been stricken out and, further, that it is
legislation upon an appropriation bill.
The Chairman: The Chair calls the attention of the gentleman to
the fact that the amendment offered by the gentleman from Virginia,
which was adopted, struck out only a portion of the proviso to this
section. But, there is language remaining to which the gentleman
has offered an amendment, and stated it would be at the end of that
paragraph. It is also a limitation on the use of the appropriation.
The point of order made by the gentleman from Minnesota is
overruled.
Sec. 67.29 To a bill appropriating funds for the Commodity Credit
Corporation, a provision that no funds appropriated in this section
shall be used to process a loan
[[Page 6369]]
which is in excess of $50,000 was held to be a limitation
restricting the availability of funds and in order.
On May 18, 1959,(11) the Committee of the Whole was
considering H.R. 7175, a Department of Agriculture and Farm Credit
Administration appropriation bill. The Clerk read as follows:
---------------------------------------------------------------------------
11. 105 Cong. Rec. 8337, 8338, 86th Cong. 1st Sess.
---------------------------------------------------------------------------
Title II--Corporations
The following corporations and agencies are hereby authorized
to make such expenditures, within the limits of funds and borrowing
authority available to each such corporation or agency and in
accord with law, and to make such contracts and commitments without
regard to fiscal year limitation as provided by section 104 of the
Government Corporation Control Act, as amended, as may be necessary
in carrying out the programs set forth in the budget for the fiscal
year 1960 for such corporation or agency, except as hereinafter
provided: . . .
Limitation on Administrative Expenses
Nothing in this Act shall be so construed as to prevent the
Commodity Credit Corporation from carrying out any activity or any
program authorized by law: Provided, That not to exceed $39,600,000
shall be available for administrative expenses of the Corporation:
Provided further, That $1,000,000 of this authorization shall be
available only to expand and strengthen the sales program of the
Corporation pursuant to authority contained in the Corporation's
charter: Provided further, That not less than 7 per centum of this
authorization shall be placed in reserve to be apportioned pursuant
to section 3679 of the Revised Statutes, as amended, for use only
in such amounts and at such time as may become necessary to carry
out program operations: Provided further, That all necessary
expenses (including legal and special services performed on a
contract or fee basis, but not including other personal services)
in connection with the acquisition, operation, maintenance,
improvement, or disposition of any real or personal property
belonging to the Corporation or in which it has an interest,
including expenses of collections of pledged collateral, shall be
considered as nonadministrative expenses for the purposes hereof. .
. .
Mr. [William H.] Avery [of Kansas]: Mr. Chairman, I have an
amendment at the desk on page 27.
The Chairman: (12) The Clerk will report the
amendment.
---------------------------------------------------------------------------
12. Paul J. Kilday (Tex.).
---------------------------------------------------------------------------
The Clerk read as follows:
Amendment offered by Mr. Avery: Page 27, line 18 strike out
the period, add a colon, and insert ``Provided further, That no
funds appropriated in this section shall be used to process a
Commodity Credit loan which is in excess of $50,000.' . . .
Mr. [Jamie L.] Whitten [of Mississippi]: Mr. Chairman, the
point of order I make is this: The Commodity Credit Corporation is
chartered and its charter gives it certain authority. The language
which the gentleman offers is legislation.
We are here dealing with the administration of the Commodity
Credit Cor
[[Page 6370]]
poration in this bill. The gentleman's limitation would apply to
what the Corporation would do and would have the effect of amending
the charter of the Commodity Credit Corporation. . . .
The Chairman: The Chair is prepared to rule. . . .
The Chair would point out that the amendment by its language is
a restriction upon the purpose for which the funds appropriated in
this bill may be used.
The Chair would point out further that even though there should
be an existing liability on the Government or should be through
other legislation granting powers to an organization of the
Government, still a provision in an appropriation bill limiting the
purpose for which the funds appropriated in that bill may be used
is a limitation and not legislation.
The Chair, therefore, overrules the point of order.
Sec. 67.30 To an Agriculture Department appropriation bill, an
amendment specifying that no part of the funds therein shall be
used, in any fiscal year, for farm program payments aggregating
more than $50,000 to any person or corporation was held to be a
proper limitation since confined to the funds in the bill.
On May 26, 1965,(13) he Committee of the Whole was
considering H.R. 8370, a Department of Agriculture appropriation bill.
The Clerk read as follows:
---------------------------------------------------------------------------
13. 111 Cong. Rec. 11660-62, 89th Cong. 1st Sess.
---------------------------------------------------------------------------
The Clerk: Page 36, line 20:
Sec. 506. Not less than $1,500,000 of the appropriations of
the Department for research and service work authorized by the
Acts of August 14, 1946, July 28, 1954, and September 6, 1958
(7 U.S.C. 472, 1621-1629; 42 U.S.C. 1891-1893), shall be
available for contracting in accordance with said Acts.
Mr. [John D.] Dingell [of Michigan]: Mr. Chairman, I offer an
amendment.
The Clerk read as follows:
Amendment offered by Mr. Dingell: Page 37, after line 2,
insert the following section:
``Sec. 507. No part of any funds appropriated by this Act
may, in any fiscal year, be used, directly or indirectly, to
make payments to any person, partnership, or corporation in an
aggregate amount in excess of $50,000 in connection with any
price-support program or combination of programs for price
support or stabilization, irrespective of whether such payments
are on account of loans, purchases, or subsidies or are
otherwise authorized.''
Mr. [Jamie L.] Whitten [of Mississippi]: Mr. Chairman, I
reserve a point of order against the amendment.
Mr. Dingell: Mr. Chairman and Members of the Committee, you
will be interested to know that the U.S. Department of
Agriculture's Commodity Credit Corporation publishes a list of
recipients of price support loans which runs to 13 closely typed
pages. . . .
The Chairman: (14) Does the gentleman from
Mississippi press his point of order? . . .
---------------------------------------------------------------------------
14. Eugene J. Keogh (N.Y.).
---------------------------------------------------------------------------
[[Page 6371]]
Mr. Whitten: This amendment would require the keeping of books,
it would require substantive additional duties on many people
because many producers produce many different crops. This would be
legislation on an appropriation bill.
The Chairman: Does the gentleman from Michigan desire to be
heard?
Mr. Dingell: Mr. Chairman, if I may be heard, I would point out
this is very simple. I am sure the gentleman from Mississippi knows
no duties are imposed upon any persons by this. . . .
This is really a limitation.
The Chairman: The gentleman from Michigan [Mr. Dingell] offered
an amendment. . . .
To which amendment the gentleman from Mississippi makes the
point of order that it is legislation on an appropriation bill.
The Chair is of the opinion that since the amendment is
directed to funds appropriated by the pending act, the phrase ``in
any fiscal year'' is not applicable, nor in fact is it necessary.
But the Chair is further of the opinion that this is an express
limitation on the funds appropriated by the pending bill, and holds
that the amendment is in order, and overrules the point of order.
Sec. 67.31 To a bill making appropriations for the Department of
Agriculture, including an appropriation for reimbursement to the
Commodity Credit Corporation, an amendment specifying that no funds
appropriated by the Act be used for agricultural price support
programs under which payments in excess of $25,000 will be made to
any single recipient was held to be a proper limitation restricting
the availability of funds and in order.
On June 6, 1967,(15) the Committee of the Whole was
considering H.R. 10509. The Clerk read as follows, and proceedings
ensued as indicated below:
---------------------------------------------------------------------------
15. 113 Cong. Rec. 14853, 14854, 90th Cong. 1st Sess.
---------------------------------------------------------------------------
Amendment offered by Mr. [Paul] Findley [of Illinois]: On page
34, line 18, after the word ``hereof'' strike the period and insert
the following: ``Provided further, That none of the funds
appropriated by this Act shall be used to formulate or carry out
price support or commodity programs during the period ended June
30, 1968, under which the total amount of payments in excess of
$25,000 would be made to any single recipient as (1) incentive
payments, (2) diversion payments, (3) price support payments. . .
.''
Mr. [Jamie L.] Whitten [of Mississippi]: Mr. Chairman, I rise
to make a point of order against the amendment. While the
gentleman's amendment applies to a number of things that might be
tied to appropriations in the bill, the amendment will stand or
fall on all of its provisions. As I pointed out earlier, the
Commodity Credit Corporation was set up as a corporation with
certain rights and powers. Later it was brought under surveil
[[Page 6372]]
lance, and under both acts which brought it under congressional
surveillance it was provided that--
Nothing in this act of surveillance shall interfere with
the operations of the Corporation in maintaining price
supports.
If you read the amendment that has been offered by the
gentleman from Illinois, you will see that item 3 states, ``Price
support payments may not exceed $25,000.'' So that language clearly
would interfere with price support payments and would repeal the
two acts that I mentioned. It would, to that extent, change the
authority of the Commodity Credit Corporation. . . .
Mr. Findley: Mr. Chairman, I believe the amendment comes
clearly within the Holman rule. It is negative. It represents a
retrenchment. It designates things for which funds may not be
spent.
I would call the attention of the Chair to the Congressional
Record, volume 111, part 9, page 11656.
On that occasion the gentleman from Illinois [Mr. Michel]
offered an amendment which had almost the same, almost the precise
language--the substantive phrases at least. The Chair overruled the
point of order made by the gentleman from Mississippi [Mr.
Whitten]. So I do believe this is very much in order and in keeping
with previous amendments of the same sort.
The Chairman: (16) The Chair is ready to rule.
---------------------------------------------------------------------------
16. James C. Corman (Calif.).
---------------------------------------------------------------------------
On January 26, 1965, the gentleman from Arkansas, Mr. Harris,
was in the chair when a similar amendment was offered to a bill
appropriating funds to reimburse the Commodity Credit Corporation.
The Chair ruled that the proposed amendment was a limitation that
applied only to the appropriations carried in the bill before the
Committee at that time. The Chair therefore overruled the point of
order. . . .
The Chair holds that the amendment is a limitation and,
therefore, the Chair overrules the point of order.
Sec. 67.32 To an appropriation bill providing funds for the
Agricultural Stabilization and Conservation Service including
programs operated by the Commodity Credit Corporation, an amendment
specifying that ``one of the funds appropriated by this act shall
be used during the period ending June 30, 1971 to formulate or
carry out any 1971 crop-year program under which the total amount
of payments to a person under such program would be in excess of
$20,000'' was held in order as a limitation.
On June 9, 1970,(17) the Committee of the Whole was
considering H.R. 17923, a Department of Agriculture appropriation bill.
The Clerk read as follows:
---------------------------------------------------------------------------
17. 116 Cong. Rec. 18997, 18998, 91st Cong. 2d Sess.
---------------------------------------------------------------------------
[[Page 6373]]
Agricultural Stabilization and Conservation Service
expenses, agricultural stabilization and conservation service
For necessary administrative expenses of the Agricultural
Stabilization and Conservation Service, including expenses to
formulate and carry out programs authorized by title III of the
Agricultural Adjustment Act of 1938, as amended (7 U.S.C. 1301-
1393); Sugar Act of 1948, as amended (7 U.S.C. 1101-1161); sections
7 to 15, 16(a), 16(d), 16(e), 16(f), 16(i), and 17 of the Soil
Conservation and Domestic Allotment Act, as amended (16 U.S.C.
590g-590q); subtitles B and C of the Soil Bank Act (7 U.S.C. 1831-
1837, 1802-1814, and 1816); and laws pertaining to the Commodity
Credit Corporation, $152,690,000: Provided, That in addition, not
to exceed $68,779,000 may be transferred to and merged with this
appropriation from the Commodity Credit Corporation fund (including
not to exceed $30,228,000 under the limitation on Commodity Credit
Corporation administrative expenses): Provided further, That other
funds made available to the Agricultural Stabilization and
Conservation Service for authorized activities may be advanced to
and merged with this appropriation: Provided further, That no part
of the funds appropriated or made available under this Act shall be
used (1) to influence the vote in any referendum; (2) to influence
agricultural legislation, except as permitted in 18 U.S.C. 1913; or
(3) for salaries or other expenses of members of county and
community committees established pursuant to section 8(b) of the
Soil Conservation and Domestic Allotment Act, as amended, for
engaging in any activities other than advisory and supervisory
duties and delegated program functions prescribed in administrative
regulations.
Mr. [Paul] Findley [of Illinois]: Mr. Chairman, I offer an
amendment.
The Clerk read as follows:
Amendment offered by Mr. Findley: On page 23, line 8, after
the word ``regulations'', strike the period, add a colon and
the following:
``Provided further, That none of the funds appropriated by
this act shall be used during the period ending June 30, 1971
to formulate or carry out any 1971 crop-year program under
which the total amount of payments to a person under such
program would be in excess of $20,000.''
Mr. [Jamie L.] Whitten (of Mississippi): Mr. Chairman, I
reserve a point of order on the amendment. . . .
The Chairman: (18) Does the gentleman from
Mississippi desire to be heard on his point of order?
---------------------------------------------------------------------------
18. James C. Wright, Jr. (Tex.).
---------------------------------------------------------------------------
Mr. Whitten: I do, Mr. Chairman.
If the Chair will note, the amendment is offered to a
particular section of the bill, but the language provides that
``none of the funds appropriated by this act,'' so it is a
limitation, which means it applies to the Commodity Credit
Corporation. The Commodity Credit Corporation was created under the
laws of Delaware in 1933. It was given the power, it was given the
right, and it was given the obligation of making payments, to make
loans under the Corporation Control Act, and it was provided that
nothing in that act should let the Congress prevent the corporation
from discharging its func
[[Page 6374]]
tions. I might say the same thing applies to the TVA.
I respectfully, therefore, submit, Mr. Chairman, that to change
the Corporation Control Act and to relieve it of its
responsibilities which have been carefully protected by the
Congress on at least two occasions, even in the Anti-Deficiency
Act, which was some years later, would take legislation. It can
only be done that way, and since it would require legislation to
change it, anything that has that effect here of necessity must be
legislation. . . .
The Chairman: The Chair is prepared to rule.
As the gentleman from Illinois declares, the point of order and
the arguments supporting it have been offered on previous
occasions, and on occasion by the gentleman from Mississippi, as
recently as the 26th of May last year.
This point was made last year with respect to an amendment
offered by the gentleman from Massachusetts (Mr. Conte), which,
while not identical, is, in the opinion of the Chair, sufficiently
similar to the presently offered amendment, as to govern.
On that occasion the gentleman from Massachusetts offered an
amendment which would have provided:
That no part of the funds appropriated by this Act shall be
used to formulate or carry out any price support program (other
than for sugar) under which payments aggregating more than
$20,000 under all such programs are made to any producer or any
crops planted in the fiscal year 1970.
On the basis of previous rulings of the Chair, it is the
opinion of the present occupant of the chair, that the amendment
offered by the gentleman from Illinois is a limitation on an
appropriation bill and is therefore in order.
The point of order is overruled.
Sec. 67.33 To an Agriculture Department appropriation bill, an
amendment specifying that none of the funds therein shall be used
for commodity programs under which payments to any single farmer
would exceed a certain dollar amount was held a proper limitation
and in order.
On May 1, 1968,(19) during consideration in the
Committee of the Whole of the Agriculture Department appropriation bill
(H.R. 16913), a point of order was raised against the following
amendment:
---------------------------------------------------------------------------
19. 114 Cong. Rec. 11281-88, 90th Cong. 2d Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
Amendment offered by Mr. [Paul] Findley [of Illinois]: On
page 33, line 5, after the word ``hereof'', strike the period
and insert the following: ``Provided further, That none of the
funds appropriated by this Act shall be used to formulate or
carry out price support or commodity programs during the period
ending June 30, 1969, under which the total amount of payments
in excess of $10,000 would be made to any single recipient as
(1) incentive payments, (2) diversion payments, (3) price
support payments, (4) wheat marketing certificate payments, (5)
cotton equali
[[Page 6375]]
zation payments, and (6) crop-land adjustment payments.''
Mr. [Jamie L.] Whitten [of Mississippi]: Mr. Chairman, I
reserve a point of order against the amendment. . . .
Mr. Chairman, may I point out several things? The Commodity
Credit Corporation was created as a corporation under the laws of
Delaware some years ago. It was incorporated so as to have, in
connection with the farm program, all the rights and
responsibilities that a corporation under general law has.
This is the right to buy and sell and the right to discharge
its responsibilities assigned to it by the Congress such as
supporting the farm program which the Congress passed and the
President signed. The very purpose of creating the Corporation was
to be freed of restrictions such as we offered here, which any
Congress might impose, from year to year, on appropriated bills, if
the erroneous rulings are continued. . . .
The purpose of the Corporation's Charter Act is to avoid such
action as is offered here which would make the Corporation a part
of the Department of Agriculture. Through the years every time the
Congress has tried to restrict this Corporation, the Congress has
carefully provided that such act could not be used to keep the
Corporation from discharging its duties and its functions under its
charter.
Now, Mr. Chairman, I am going to ask you to reverse the prior
decisions of other Chairmen who have presided, and have had this
question before them. Also may I say the present amendment is very
different from the one that we had before. This one reads:
None of the funds appropriated by this Act shall be used to
formulate or carry out price support or commodity programs
during the period ending June 30, 1969, under which the total
amount of payments in excess of $10,000 would be made to any
single recipient as (1) incentive payments----
The funds in this bill are to restore past losses. So I
respectfully submit that the Corporation, being a corporation, has
a right to hire its own employees. . . .
Mr. Chairman, I have with me here a brief, and I have sent a
copy of this brief to the Parliamentarian earlier so I am sure he
has had time to study it. My brief, which I shall present to you,
points out that, if you will go through all of the legislation
since this Corporation was set up as a corporation, you will see
that Congress has carefully said that no action under appropriation
bills should be taken to prevent the Corporation from performing
its functions.
Mr. Chairman, I submit that you cannot limit the basic powers
of the Corporation by the imposition of a restriction thereon in an
appropriation bill because Congress has carefully seen that such a
procedure could not prevent the Corporation from carrying out its
responsibilities. . . .
The Chairman: (20) The Chair has read the amendment
and is ready to rule.
---------------------------------------------------------------------------
20. James C. Corman (Calif.).
---------------------------------------------------------------------------
Consistent with the decision of Chairman Harris in 1965 and
Chairman Kilday in 1959, and consistent with the Chair's own ruling
on June 6, 1967, the Chair finds that the amendment is a limitation
on appropriations.
[[Page 6376]]
Restriction on Contract Authority Contained in Bill
Sec. 67.34 To a section of an Agriculture Department appropriation bill
containing legislation authorizing the Secretary of Agriculture to
make such additional commitments as may be necessary in order to
provide full parity payments, an amendment providing that the
payments shall not exceed an amount necessary to equal parity
``when added to the market price and the payment made for
conservation . . . of agricultural land resources,'' was held a
proper limitation restricting the availability of funds which did
not add further legislation to that already contained in the bill.
On Mar. 9, 1942,(1) during consideration in the
Committee of the Whole of the Agriculture Department appropriation
bill, the Clerk read the following provisions:
---------------------------------------------------------------------------
1. 88 Cong. Rec. 2124, 2125, 77th Cong. 2d Sess.
---------------------------------------------------------------------------
parity payments
To enable the Secretary of Agriculture to make parity payments
to producers of wheat, cotton, corn (in the commercial corn-
producing area), rice, and tobacco pursuant to the provisions of
section 303 of the Agricultural Adjustment Act of 1938, there are
hereby reappropriated the unobligated balances of the
appropriations made under this head by the Department of
Agriculture Appropriation Acts for the fiscal years 1941 and 1942,
to remain available until June 30, 1945, and the Secretary is
authorized and directed to make such additional commitments or
incur such additional obligations as may be necessary in order to
provide for full parity payments: . . . Provided further, That such
payments with respect to any such commodity shall be made with
respect to a farm in full amount only in the event that the acreage
planted to the commodity for harvest on the farm in 1943 is not in
excess of the farm acreage allotment established for the commodity
under the agricultural conservation program, and, if such allotment
has been exceeded, the parity payment with respect to the commodity
shall be reduced by not more than 10 percent for each 1 percent, or
fraction thereof, by which the acreage planted to the commodity is
in excess of such allotment. The Secretary may also provide by
regulations for similar deductions for planting in excess of the
acreage allotment for the commodity on other farms or for planting
in excess of the acreage allotment or limit for any other commodity
for which allotments or limits are established under the
agricultural conservation program on the same or any other farm.
An amendment was offered as follows:
Amendment offered by Mr. (John) Taber (of New York): On page
77, line 5, after the word ``farm,'' strike out the period, insert
a colon and a proviso as
[[Page 6377]]
follows: ``Provided further, That parity payments, under the
authority of this paragraph, shall not exceed such amount as is
necessary to equal parity when added to the market price and the
payment made or to be made for conservation and use of agricultural
land resources under sections 7 to 17, inclusive, of the Soil
Conservation and Domestic Allotment Act approved February 29, 1936,
as amended; and the provisions of the Agricultural Adjustment Act
of 1938 as amended; Provided further, That the total expenditures
made and the contracts entered into in pursuance of this paragraph
shall not exceed in all $212,000,000.
Mr. [Malcolm C.] Tarver [of Georgia]: Mr. Chairman, I submit a
point of order against the amendment proposed by the gentleman from
New York [Mr. Taber]. . . .
Mr. Taber: . . . The bill, on page 75, provides that the
Secretary is authorized and directed to make such additional
commitments or incur such additional obligations as may be
necessary in order to provide for full parity payments.
That is legislation. It is brought in order under the rule. The
language that I have submitted is clearly germane to that provision
because it provides a method. It is purely a limitation to the
payments that shall be made for parity under the authority of this
paragraph. For this reason it is clearly germane and it is clearly
in order.
It would be in order if there was no legislation in the
paragraph because it is a pure limitation.
Mr. [Francis H.] Case of South Dakota: Mr. Chairman, may I be
heard?
The Chairman: (2) The Chair will hear the gentleman
from South Dakota.
---------------------------------------------------------------------------
2. Robert Ramspeck (Ga.).
---------------------------------------------------------------------------
Mr. Case of South Dakota: Mr. Chairman, may I make the
observation that if the proposal is clearly a limitation, even
though it embraces some legislation, it is in order under the
Holman rule.
The Chairman: The Chair would like to ask the gentleman from
New York [Mr. Taber] if there are any funds other than those
appropriated in this bill to be used for parity payments?
Mr. Taber: None.
The Chairman: Just the funds in this bill?
Mr. Taber: That is correct.
The Chairman: The amendment the gentleman is offering is to
limit the funds offered in this bill?
Mr. Taber: That is my intention. I think perhaps I ought to
insert after the word ``payments'' in the third line the words
``under the authority of this paragraph.'' With that in, it would
clearly be in order.
The Chairman: Does the gentleman from New York [Mr. Taber] ask
to modify his amendment?
Mr. Taber: I do, Mr. Chairman.
The Chairman: The gentleman from New York asks unanimous
consent to modify his amendment by inserting after the word
``payments'' ``under the authority of this paragraph.'' Is there
objection to the request of the gentleman from New York [Mr.
Taber]?
There was no objection.
The Chairman: The gentleman from New York [Mr. Taber] has
offered an amendment, on page 77, line 5, under
[[Page 6378]]
taking to provide further limitations on the payment and the
administration of parity payments, to which the gentleman from
Georgia has made a point of order.
It seems to the Chair that the language of the amendment
offered by the gentleman from New York constitutes a limitation
upon the funds appropriated by this paragraph or proposed to be
appropriated by this paragraph and does not constitute legislation.
The Chair therefore overrules the point of order.
Acreage Reserve, Payment Per Acre
Sec. 67.35 An amendment to an appropriation bill providing that no
payment under the acreage reserve shall be made above $16 per acre
out of the appropriation was held to be a limitation restricting
the availability of funds in the bill and in order.
On Feb. 25 and 26, 1958,(3) The Committee of the Whole
was considering H.R. 10881, a supplemental appropriation bill. The
Clerk read as follows:
---------------------------------------------------------------------------
3. 104 Cong. Rec. 2766, 2895, 85th Cong. 2d Sess.
---------------------------------------------------------------------------
Acreage Reserve Program
For an additional amount for ``Acreage reserve program,''
fiscal year 1958, $250,000, which shall be available to formulate
and administer an acreage reserve program in accord with the
provisions of subtitles A and C of the Soil Bank Act (7 U.S.C.
1821-1824 and 1802-1814), with respect to the 1958 crops, in an
amount not to exceed $175 million in addition to the amount
specified for such purposes in Public Law 85-118.
Mr. [John] Taber [of New York]: Mr. Chairman, I offer an
amendment.
The Clerk read as follows:
Amendment offered by Mr. Taber: On page 4, line 9, strike
out the period and insert: ``Provided, That no payment under
acreage reserve shall be made above $16 per acre out of this
appropriation.''
Mr. [Jamie L.] Whitten [of Mississippi]: Mr. Chairman, I make a
point of order against the amendment. . . .
. . . Under the basic act the Secretary has authority to set
the rate of payment, and I respectfully submit that were this
amendment to change that legislative authority which is vested in
the Secretary of Agriculture, that it is legislation on an
appropriation bill.
The Chairman: (4) Does the gentleman from New York
desire to be heard?
---------------------------------------------------------------------------
4. Francis E. Walter (Pa.).
---------------------------------------------------------------------------
Mr. Taber: It is a pure limitation on the funds involved in
that paragraph. . . .
The Chairman: The Chair will rule on the point of order that
has been made. The point of order is not sustained.
Limit on Authorized Purchase of Motor Vehicles
Sec. 67.36 Language in a general appropriation bill providing
[[Page 6379]]
that not to exceed a certain amount of money be available for the
purchase of motor vehicles was held to be a proper limitation on an
appropriation bill for a purpose otherwise authorized by law.
On Apr. 23, 1937,(5) the Committee of the Whole was
considering H.R. 6523, an Agriculture Department appropriation bill.
The Clerk read as follows, and proceedings ensued as indicated below:
---------------------------------------------------------------------------
5. 81 Cong. Rec. 3783, 3784, 75th Cong. 1st Sess.
---------------------------------------------------------------------------
Federal-Aid Highway System
For carrying out the provisions of the act entitled ``An act to
provide that the United States shall aid the States in the
construction of rural post roads, and for other purposes'',
approved July 11, 1916 (39 Stat., pp. 355-359), and all acts
amendatory thereof and supplementary thereto, to be expended in
accordance with the provisions of said act, as amended, including
not to exceed $556,000 for departmental personal services in the
District of Columbia, $150,000,000. . . . Provided further, That
not to exceed $45,000 of the funds provided for carrying out the
provisions of the Federal Highway Act of November 9, 1921 (U.S.C.,
title 23, secs. 21 and 23), shall be available for the purchase of
motor-propelled passenger-carrying vehicles necessary for carrying
out the provisions of said act, including the replacement of not to
exceed one such vehicle for use in the administrative work of the
Bureau of Public Roads in the District of Columbia. . . .
Mr. [John] Taber [of New York]: Mr. Chairman, I make the point
of order that the part of the paragraph beginning with the word
``Provided', on page 72, line 13, and running down as far as the
word ``Columbia'', in lines 21 and 22, is not authorized by law.
This refers to the purchase of automobiles. . . .
Mr. [Clarence] Cannon of Missouri: Mr. Chairman, this is merely
a limitation. Otherwise the whole amount could be spent for
automobiles. This proviso limits the amount which may be used. It
is not legislation, and is not subject to a point of order. . . .
The Chairman: (6) The Chair is ready to rule.
---------------------------------------------------------------------------
6. Franklin W. Hancock, Jr. (N.C.).
---------------------------------------------------------------------------
The Chair overrules the point of order on the ground that the
proviso constitutes a limitation, without which the Secretary could
spend any amount within the total of the appropriation for this
purpose.
Parliamentarian's Note: While the language in the bill was not
specifically limited to the funds appropriated, the Chair evidently did
construe it as limited to the appropriated funds.
CHAPTER 26
Unauthorized Appropriations; Legislation on Appropriation Bills
F. PERMISSIBLE LIMITATIONS ON USE OF FUNDS
Sec. 68. Civil Liberties
Segregation by Race, Color, Creed; Limitation on Funds
Sec. 68.1 An amendment to a District of Columbia appropria
[[Page 6380]]
tion bill providing that no part of the money contained in the act
shall be used for any agency, office, or department of the District
of Columbia which segregates the citizens of the District in
employment, facilities afforded, services performed, accommodations
furnished, instructions, or aid granted, on account of the race,
color, creed, or place of national origin of the citizens of the
District was held a proper limitation and in order.
On Apr. 5, 1946,(7) the Committee of the Whole was
considering H.R. 5990. The Clerk read as follows:
---------------------------------------------------------------------------
7. 92 Cong. Rec. 3227-29, 79th Cong. 2d Sess. This precedent was
followed in later rulings: see Sec. 68.2, infra, for the ruling
of Apr. 19, 1950, and see 95 Cong. Rec. 1743, 1744, 81st Cong.
1st Sess., for the Mar. 2, 1949, ruling on identical issues.
---------------------------------------------------------------------------
Amendment offered by Mr. [Adam C.] Powell [Jr., of New York]:
In line 7, page 2, insert the following: ``Provided, That no part
of any appropriation contained in this act shall be used for any of
the purposes therein mentioned by any agency, office, or department
of the District of Columbia which segregates the citizens of the
District of Columbia in employment, facilities afforded, services
performed, accommodations furnished, instructions or aid granted,
on account of the race, color, creed, or place of national origin
of the citizens of the District of Columbia.''
Mr. [John E.] Rankin [of Mississippi]: Mr. Chairman, I make a
point of order against the amendment.
The Chairman: (8) The gentleman will state the point
of order.
---------------------------------------------------------------------------
8. Aime J. Forand (R.I.).
---------------------------------------------------------------------------
Mr. Rankin: Mr. Chairman, I make the point of order that the
amendment is not germane, and that it is legislation on an
appropriation bill, in that it attempts to change the fundamental
laws of the District of Columbia that have been established and in
effect for at least 80 years or probably a hundred years.
This amendment, if adopted, would destroy the school system of
the District of Columbia. It would stir up race hatred and bring
about race trouble, the like of which nothing else has ever done in
all the history of the District. If it is done, the effect will be
to destroy the legislation providing funds with which to carry on
the public schools in the District of Columbia.
Mr. [Vito] Marcantonio [of New York]: Mr. Chairman, a point of
order. The gentleman is not addressing himself to the point of
order but is addressing himself to the merits of the legislation.
Mr. Rankin: I am not surprised that the gentleman from New York
does not understand me when I am talking to a point of order.
The Chairman: The gentleman will address himself to the point
of order.
Mr. Marcantonio: It is very difficult to understand the
gentleman when he is talking propaganda.
[[Page 6381]]
Mr. Rankin: Mr. Chairman, I am developing the point that if
this amendment is adopted it will destroy the school system of the
District.
The Chairman: The gentleman will talk strictly to the point of
order.
Mr. Rankin: That is what I am doing now.
It is legislation on an appropriation bill designed to destroy
the school system of the District of Columbia for which we are
required to appropriate. The people of the District of Columbia
have to look to Congress to legislate for them. They have no
legislative body of their own. They have maintained this separate
school system at least for the last 80 years and probably ever
since the District of Columbia was created. This amendment would
destroy it, and in my opinion would close the white schools of the
District. For that reason I say it is more far reaching than any
mere limitation, it is a change in fundamental law, and the point
of order should be sustained.
The Chairman: Does the gentleman from Washington desire to be
heard on the point of order?
Mr. [John M.] Coffee [of Washington]: Mr. Chairman, I make the
point of order that the amendment proposes to incorporate a
legislative provision in an appropriation bill that does not come
within the purview of the Holman rule and that it sets up an
affirmative agency in the law.
Mr. [Howard W.] Smith of Virginia: Mr. Chairman, I desire to
add further points of order upon which I should like to be heard at
a later time in the discussion.
The Chairman: The Chair would appreciate very much the
gentleman's talking to the points of order to help the Chair arrive
at a decision.
Mr. Smith of Virginia: I merely want to make them at this time.
I will discuss them later.
Mr. Marcantonio: Mr. Chairman, a parliamentary inquiry.
The Chairman: The gentleman will state it.
Mr. Marcantonio: Then there will be two points of order pending
at the same time.
The Chairman: Any number of reasons can be given for the point
of order.
Mr. Marcantonio: But reasons are different from points of
order. I submit the points of order to be dealt with one at a time
and the first point of order raised must be passed on before others
are made.
Mr. Rankin: Oh, no. That is not the rule.
Mr. Marcantonio: The Chair will make the ruling, not the
gentleman form Mississippi. I am addressing the Chair.
Mr. Smith of Virginia: Mr. Chairman, I make the further point
of order that this amendment would impose additional duties upon
the executive officials.
I make the further point of order that it does not necessarily
and will not even if carried out result in any reduction of
expenditures as required under the Holman rule.
I make the further point of order that it is obvious on the
face of the amendment that the object is not to effect a
retrenchment, as required by the Holman rule, but to effect
legislation.
I ask to be heard on these points of order at a later time.
[[Page 6382]]
The Chairman: Does the gentleman from New York care to be heard
on the point of order?
Mr. Powell: Mr. Chairman, I do.
The first point of order is that it would change the laws of
the District of Columbia. There are no laws of the District of
Columbia which guarantee segregation.
As to the second point of order that it would add to expenses,
we can cite that segregation has always been more expensive than
democracy.
Mr. Marcantonio: Mr. Chairman, I should like to be heard on the
points of order.
The Chairman: The Chair will hear the gentleman.
Mr. Marcantonio: Mr. Chairman, this amendment is definitely a
negative limitation. It prohibits the use of funds appropriated in
this bill for certain specific purposes which are enumerated in the
amendment. It does not change any existing law and Congress has the
right to withhold the funds for any purpose enumerated in an
appropriation act or to withhold funds for any purpose for which an
appropriation is being made.
This bill makes appropriations for the District of Columbia.
The amendment simply states that none of the funds appropriated in
this bill shall be expended to do certain things. We have had that
up time and time again. I recall distinctly the Lea amendment in
which funds were withheld from the National Labor Relations Board
for taking jurisdiction over so-called agricultural workers.
There is no additional duty imposed upon anyone. The amendment
deals with an existing condition, that is, segregation in
education, segregation in recreation, in hospitals and other
places. I repeat there is no additional duty imposed on anyone. The
amendment strictly is a negative limitation which we have had in
this committee time and time again. . . .
Mr. Smith of Virginia: Mr. Chairman, this question all revolves
around the so-called Holman rule, which is rule XXI. The theory of
the Holman rule is that legislation on an appropriation bill is out
of order unless it retrenches expenses and to that has been added
by various rulings of the Chair from time to time further
limitations upon the rule.
The Chairman: Can the gentleman from Virginia give the Chair
the benefit of his advice as to how this is a limitation of the
fund?
Mr. Smith of Virginia: It is a very definite limitation. It
says, ``No part of the fund shall be expended,'' for certain
facilities, for certain things, either done or omitted to be done.
The Chairman: The Chair is trying to find out whether or not
this is a proper limitation. The Chair does not believe that the
Holman rule is involved so much as the limitation question.
Mr. Smith of Virginia: Mr. Chairman, if we go to the question
of limitation, we still have the same rule to this extent, and you
will find it in the rule book under section 845. I will not
undertake to read all of it:
But such limitation must not give affirmative direction and
must not impose new duties upon an executive officer.
I made that point of order because if this amendment were
adopted it would
[[Page 6383]]
cover every executive agent performing the duties covered by these
appropriations to proceed to carry out this rule of segregation. It
would impose not only affirmative duties but arduous duties upon
every executive officer who has anything to do with carrying out
these facilities.
It is a very definite rule which has been sustained time and
time again by the Speaker and by the chairmen of various committees
that no limitation is in order which imposes any other duty upon an
executive officer.
Passing that point to another, let me quote:
And it must not be coupled with legislation not directly
instrumental in effecting a reduction.
Let us look at this amendment and see whether it effects any
reduction. I ask the gentlemen who oppose the point of order, will
this amendment, if adopted, save the District of Columbia a single
dollar?
Mr. Marcantonio: Certainly it would.
Mr. Smith of Virginia: Will it remove a single facility?
Mr. Marcantonio: Absolutely. Instead of having two school
systems you will have one.
Mr. Smith of Virginia: Exactly the same facilities will be
required; exactly the same number of children will go to school and
exactly the same number of teachers, janitors, the same amount of
heat and every other thing appropriated for in this bill will be
required.
Mr. Marcantonio: The gentleman has asked a question. May I
answer it? . . .
The point is, Mr. Chairman, in response to the gentleman's
question, that with segregation you double the number of
administrative offices, the number of facilities, and the
expenditures are thereby increased, and therefore the amendment
definitely is a saving to the Treasury of the United States.
Mr. Smith of Virginia: That is just the gentleman's conclusion.
Mr. Marcantonio: Well, the gentleman asked the question.
Mr. Smith of Virginia: My conclusion is just the opposite; that
it will not do any such thing. As to the burden of proof when such
an amendment is offered and the point of order is made the
authorities are clear that it is the duty of the proponent of the
amendment to show definitely that there will be a retrenchment in
expenditures and a reduction in the necessary appropriations. . . .
Mr. Powell: Since I am the proponent of the measure, I would
like to tell my colleague, the gentleman from Virginia, that here
in the District of Columbia an entirely duplicate system of
superintendence is maintained out of the treasury of the District
of Columbia. You have a Negro superintendent and a white
superintendent with exactly the same position right down the line.
That would be a saving.
Mr. Smith of Virginia: And you would have to have just as many
superintendents, and just as many schools, and just as many school
children, and just as many teachers.
Mr. Powell: But not as many superintendents.
Mr. Smith of Virginia: I do not know about that. I expect you
would have just as many, if not a few more.
Mr. Chairman, there is one other point I wanted to make. It is
another
[[Page 6384]]
very definite rule of parliamentary law. . . .
Mr. Rankin: This would also increase the number of police
required, and increase the expenses of the District instead of
curtailing them.
Mr. Smith of Virginia: Well, again, as I say, as I said to the
gentleman from New York, that is just one man's opinion, and there
has not been any proof that it will save a nickel.
I call attention of the Chairman to the third point I wanted to
make. This is on construing a proposed limitation, and I think very
crucial and very decisive on this point of order.
In construing a proposed limitation, if the Chair finds the
purpose to be legislative, in that the intent is to restrict
executive discretion to a degree that may be fairly termed a
change in policy rather than a matter of administrative detail,
he should sustain the point of order.
Now, this is definitely a situation where obviously the purpose
is to change an administrative policy, a policy that has long
prevailed, and the authorities on that are so definite and so clear
that it seems there can be no doubt left.
I would like to read the Chair what Chairman Luce said on
January 8, 1925, when this amendment was up, which was offered by
Mr. Hull, of Iowa, which reads:
No part of the moneys appropriated in this act shall be
used to pay any officer to recruit the Army beyond the limit of
100,000, 3-year enlisted strength.
There was long discussion about the point of order on that
amendment, and this is the conclusion of the Chair on page 1497:
In the judgment of the Chair there is no adequate proof
embodied in the amendment, or any necessary conclusion from the
amendment, that there will be a reduction of expenditure.
Therefore, the Chair is unable to see that it complies in this
regard with the second paragraph of rule XXI, commonly known as the
Holman rule.
I think that is all I have to say except to call attention to
one more extract of a ruling that took place on February 18, 1918,
when Mr. Saunders, of Virginia, was in the chair and a similar
question arose. He said:
The situation developed by this amendment is as follows:
The amendment first proposes to reduce the amount carried in
this paragraph. That is perfectly competent under parliamentary
law. In addition, it is proposed for legislation to accompany
the reducing portion of the amendment. But this legislation has
no sort of relation to the proposed reduction. It is perfectly
competent to legislate on an appropriation bill, provided the
legislation proposed necessarily effects a reduction; but it is
just as plainly incompetent to propose a reducing amendment to
an appropriation bill, a motion which can be made at any time
without reference to the Holman rule, and then undertake to
attach to this motion legislation which does not effect the
reduction and is not in any wise related to it.
I submit, Mr. Chairman, that the amendment is clearly subject
to the point of order. . . .
Mr. Rankin: I call the gentleman's attention also to the fact
that it has been held time and time again that the reduction or
entrenchment must show on the face of the amendment. This amendment
shows no such reduction.
[[Page 6385]]
Mr. Smith of Virginia: That would show it would be a saving of
money?
Mr. Rankin: Yes. This amendment makes no such showing. . . .
Mr. Marcantonio: First of all, the Chair has ruled with regard
to the Holman rule. What is involved here, as the gentleman from
Virginia pointed out, is whether or not there is a change of policy
or law; and when we are talking about policy we are talking about
law. This amendment does not involve a change in the law at all.
This restricts, or rather, prohibits the use of funds with regard
to an administration which is not authorized by law at all.
Congress has passed no law providing for segregation in the
District of Columbia. Segregation is only an administration ruling
applied by various agencies and departments of the District of
Columbia. Congress certainly has the right to say, by means of a
negative limitation, that none of those agencies can have any funds
in carrying out that particular practice. I see no difference
between this negative limitation and all of the others that we have
had before this Committee. It simply says to the various bureaus,
``No funds shall be given to you, not for the carrying out of any
law, but no funds shall be given to you for the carrying out of a
practice not authorized by law.'' Therein lies the distinction
between the situation the gentleman from Virginia tried to set up
and what we actually have involved in this amendment.
Mr. Rankin: Mr. Chairman, I would like to be heard for a moment
on the point of order.
The Chairman: The Chair will hear the gentleman from
Mississippi.
Mr. Rankin: I call the attention of the Chair to the fact, as I
pointed out to the gentleman from Virginia a moment ago, that it
has been held time and time again that in order to be in order
under the Holman rule the reduction or retrenchment must show on
the face of the amendment. All the reduction they propose is
speculative.
If you are going off into the realm of speculation, I submit
that this amendment will probably increase expenses far more than
it will curtail them, by increasing the police force, hospital
facilities, doctors, jail facilities, and other things of that
kind. I submit that this is merely a fantastic attempt to stir up
race trouble in the District of Columbia, and the point of order
should be sustained.
The Chairman: The Chair is ready to rule.
The Chair has listened very attentively to the arguments pro
and con and has reached the conclusion that the Holman rule is not
in issue at the present moment. The wording of the amendment reads,
``Provided, that no part of any appropriation contained in this act
shall be used for any of the purposes therein mentioned,'' and they
are enumerated.
After serious consideration, the Chair is of the opinion that
the amendment is a proper limitation and overrules the point of
order.
Sec. 68.2 An amendment to a chapter of the general appropriation bill,
1951, providing that no part of any appropriation contained in this
chapter shall be used for any of the purposes therein men
[[Page 6386]]
tioned by any agency, office, or department of the District of
Columbia which segregates the citizens of the District of Columbia
in employment, facilities afforded, services performed,
accommodations furnished, instructions or aid granted, on account
of race, color, creed, or place of national origin of the citizens
of the District of Columbia, was held to be a proper limitation
restricting the availability of funds and therefore in order.
On Apr. 19, 1950,(9) the Committee of the Whole was
considering H.R. 7786. The Clerk read as follows:
---------------------------------------------------------------------------
9. 96 Cong. Rec. 5390, 81st Cong. 2d Sess.
---------------------------------------------------------------------------
Amendment offered by Mr. (Vito) Marcantonio (of New York): Page
2, line 5, after the period, insert the following: ``Provided, That
no part of any appropriation contained in this chapter shall be
used for any of the purposes therein mentioned by any agency,
office or department of the District of Columbia which segregates
the citizens of the District of Columbia in employment, facilities
afforded, services performed, accommodations furnished,
instructions or aid granted, on account of race, color, creed, or
place of national origin of the citizens of the District of
Columbia.''
Mr. [Joe B.] Bates of Kentucky: Mr. Chairman, I make a point of
order against the amendment.
Mr. Chairman, I make the point of order that the amendment is
not germane. It goes beyond the scope of the chapter that we have
under consideration.
Mr. Marcantonio: . . . The amendment is a negative limitation.
It does not violate the Holman rule. It provides for a saving. We
had the same situation on March 2, 1949, and on April 5, 1946, and
the germaneness of the amendment was sustained by the Chairmen. I
call the Chair's attention to the two precedents, the one on March
2, 1949, and the one on April 5, 1946. . . .
Mr. [John E.] Rankin [of Mississippi]: Mr. Chairman, I just
rise to say that this amendment is not in order. In the first place
it is legislation on an appropriation bill. It attempts to change a
law, to change the requirements, you might say, for the use of this
money in the District of Columbia, and in that way attempts to
write legislation into an appropriation bill, and is therefore not
in order.
The Chairman: (10) The Chair is prepared to rule.
The gentleman from New York has offered an amendment which has been
reported. Of course, the decision of the Chair has to be in
conformance with the precedents and the rules of the House, and it
certainly does not reflect any individual views of the Chair.
---------------------------------------------------------------------------
10. Jere Cooper (Tenn.).
---------------------------------------------------------------------------
The Chair invites attention to the fact that the identical
amendment was offered on two previous occasions, on April 5,
1946,(11) and on March 2, 1949.(12) In both
instances the point of order was overruled. Under the prece
[[Page 6387]]
dents here cited, the Chair is compelled to overrule the point of
order.
---------------------------------------------------------------------------
11. See Sec. 68.1, supra.
12. See 95 Cong. Rec. 1743, 1744, 81st Cong. 1st Sess.
---------------------------------------------------------------------------
Sec. 68.3 To a section of a supplemental appropriation bill making
appropriations for the Air Force, an amendment providing that none
of the funds appropriated therein shall be used in the branches of
the Department of the Air Force in which there exists racial
segregation was held germane and a proper limitation restricting
the availability of funds.
On Apr. 15, 1948,(13) the Committee of the Whole was
considering H.R. 6226. The Clerk read as follows:
---------------------------------------------------------------------------
13. 94 Cong. Rec. 4543, 80th Cong. 2d Sess.
---------------------------------------------------------------------------
Amendment offered by Mr. [Adam C.] Powell [Jr., of New York]:
On page 2, line 25, insert ``Provided further, That none of the
funds herein appropriated shall be used in the branches of the
Department of the Air Force in which there exists racial
segregation.''. . .
Mr. [John E.] Rankin [of Mississippi]: Mr. Chairman, I make the
point of order that this amendment is not germane and it is,
therefore, not in order on this bill; that it is legislation on an
appropriation bill; that it imposes additional burdens and
restrictions that are entirely out of place.
This is an aircraft procurement bill. This is not a labor bill.
I submit that the amendment is out of order from practically every
standpoint.
The Chairman: (14) Does the gentleman from New York
desire to be heard on the point of order?
---------------------------------------------------------------------------
14. Joseph P. O'Hara (Minn.).
---------------------------------------------------------------------------
Mr. Powell: Yes, Mr. Chairman. This is an amendment which has
limitations; it is negative; it is the type that has been ruled in
order on previous appropriation bills.
The Chairman: The Chair is ready to rule. . . . The Chair is
constrained to rule that the amendment is germane and is in order
and consequently overrules the point of order.
Sec. 68.4 To the Federal Security Agency title of the general
appropriation bill, 1951, an amendment providing that ``No part of
any appropriation under this title shall be paid as grants to any
State or educational institution in which, because of race, color,
or creed, discriminatory practices deny equality of educational
opportunity or employment to anyone to pursue such educational
courses or employment as are provided by such a grant,'' was held
to be a proper limitation restricting the availability of funds and
in order.
On Apr. 26, 1950,(15) the Committee of the Whole was
consid
[[Page 6388]]
ering H.R. 7786. The Clerk read as follows:
---------------------------------------------------------------------------
15. 96 Cong. Rec. 5816, 5817, 81st Cong. 2d Sess.
---------------------------------------------------------------------------
Amendment offered by Mr. (Vito) Marcantonio (of New York): On
page 151, line 5, after the period, add a new section:
``Sec. 209. No part of any appropriation under this title shall
be paid as grants to any State or educational institution in which,
because of race, color, or creed, discriminatory practices deny
equality of educational opportunity or employment to anyone to
pursue such educational courses or employment as are provided by
such a grant.''
Mr. [John E.] Rankin [of Mississippi]: Mr. Chairman, a point of
order. I make the point of order that the amendment is not germane
and that it is legislation on an appropriation bill. I do not see
how those conclusions can be escaped. It is clearly legislation on
an appropriation bill, and an attempt to interfere with and direct
the affairs of every State in the Union and of every Territory. The
point of order should be sustained.
The Chairman: (16) Does the gentleman from New York
desire to be heard on the point of order?
---------------------------------------------------------------------------
16. Jere Cooper (Tenn.).
---------------------------------------------------------------------------
Mr. Marcantonio: Yes, I do, Mr. Chairman. I refer the Chairman
to the Congressional Record of March 8, 1948, page 2356. This
identical amendment was offered by me on that day and a point of
order was made by the gentleman from Mississippi, against the
amendment. It is the same amendment, word for word, to the same
section of the bill, and the point of order was overruled. It is
definitely a negative limitation.
Mr. Rankin: Mr. Chairman, I just want to state in reply that
because one Chairman makes a mistake does not bind the House for
all time to come. There was an error on the part of the Chairman, 2
years ago.
The Chairman: The Chair is prepared to rule. The gentleman from
Mississippi knows that the present occupant of the chair is bound
by the decisions and precedents of the House.
The gentleman from New York [Mr. Marcantonio] has offered an
amendment which has been reported, and the gentleman from
Mississippi has made a point of order against the amendment. The
Chair has examined the amendment and has compared it with the
language appearing in the amendment offered by the gentleman from
New York on March 8, 1948, against which a point of order was made
by the gentleman from Mississippi on the same grounds as stated by
him on this occasion. At that time the Chair ruled that the
amendment was a limitation on an appropriation bill. Of course, it
is the duty of the occupant of the chair to follow the rules of the
House and the precedents and decisions of the House. So, in view of
this decision the Chair is compelled to and has no other recourse
than to overrule the point of order.
Parliamentarian's Note: In the Mar. 8, 1948, ruling (17)
referred to by Mr. Marcantonio, the Chairman, Forest A. Harness, of
Indiana, decided that an identical amendment was germane to H.R.
[[Page 6389]]
5728, the Labor-Federal Security appropriation bill. Mr. Rankin made
the point of order:
---------------------------------------------------------------------------
17. 94 Cong. Rec. 2356, 80th Cong. 2d Sess.
---------------------------------------------------------------------------
Mr. Rankin: Mr. Chairman, I make a point of order against the
amendment that the amendment is not germane and it is not in order
at this point in the bill. . . .
Mr. Marcantonio: . . . The amendment certainly is germane. It
is simply a negative limitation. It restricts the use of the funds
and it is clearly in order.
The Chairman: There is no question but that the amendment is
germane. This is an appropriation bill and the amendment deals with
an appropriation made in the bill. Therefore the Chair overrules
the point of order.
Sec. 68.5 In an appropriation bill providing funds for grants for
hospital construction, an amendment providing that ``no part of any
appropriation contained in this section shall be used . . . by any
agency or facility which segregates . . . on account of race,
color, ancestry or religion'' was held to be a limitation and in
order.
On Apr. 3, 1957,(18) the Committee of the Whole was
considering H.R. 6287, a Departments of Labor, and Health, Education,
and Welfare appropriation bill. The Clerk read as follows:
---------------------------------------------------------------------------
18. 103 Cong. Rec. 5018, 5024, 85th Cong. 1st Sess.
---------------------------------------------------------------------------
Grants for hospital construction: For payments under parts C
and G, title VI, of the act, as amended, $121,200,000, of which
$99,000,000 shall be for payments for hospitals and related
facilities pursuant to part C, $1,200,000 shall be for the purposes
authorized in section 636 of the act, and $21,000,000 shall be for
payments for facilities pursuant to part G, as follows: $6,500,000
for diagnostic or treatment centers, $6,500,000 for hospitals for
the chronically ill and impaired, $4,000,000 for rehabilitation
facilities, and $4,000,000 for nursing homes: Provided, That
allotments under such parts C and G to the several States for the
current fiscal year shall be made on the basis of amounts equal to
the limitations specified herein. . . .
Mr. [Adam C.] Powell [Jr., of New York]: Mr. Chairman, I offer
an amendment.
The Clerk read as follows:
Amendment offered by Mr. Powell: On page 25, line 17,
before the period insert ``Provided, That no part of any
appropriation contained in this section shall be used for any
of the purposes therein mentioned by any agency or facility
which segregates citizens in facilities offered, services
performed, and granted on account of race, color, ancestry or
religion.'' . . .
Mr. [Ross] Bass of Tennessee: Mr. Chairman, I make a point of
order that the amendment is not germane for the same reason that
the other amendment was not germane. . . .
Mr. Powell: Mr. Chairman, I would like to say this amendment in
exact language as submitted has been held to be germane for the 13
years I have been a Member of the House of Representatives and I
submit the following
[[Page 6390]]
pages in the Record: For instance, in the 83d Congress, 1st
session, volume 99, part 5, page 5921, where the Parliamentarian
upheld my views.
The Chairman: (19) The Chair is ready to rule,
having ruled on a quite similar motion back in 1946 when the
District of Columbia appropriation bill was up for consideration.
The Chair held then that it was a limitation on the use of the
money and so holds now, and therefore overrules the point of order.
---------------------------------------------------------------------------
19. Aime J. Forand (R.I.).
---------------------------------------------------------------------------
Sec. 68.6 To a bill appropriating funds for the Civil War Centennial
Commission, an amendment providing that none of the funds
appropriated may be used for activities conducted in facilities in
which individuals are segregated or discriminated against because
of race, religion, or color was held to be a limitation and in
order.
On Apr. 18, 1961,(20) the Committee of the Whole was
considering H.R. 6345, a Department of the Interior appropriation bill.
The Clerk read as follows:
---------------------------------------------------------------------------
20. 107 Cong. Rec. 6132, 87th Cong. 1st Sess.
---------------------------------------------------------------------------
Amendment offered by Mr. [Harold M.] Ryan [of Michigan]: Page
41, immediately before the period in line 18, insert the following:
``, except that no part of such amount shall be expended for
activities of the Civil War Centennial Commission conducted in
facilities in which individuals are segregated on the basis of
race, religion, or color, or for any activities of the Commission
in which individuals are discriminated against on the basis of
race, religion, or color.''
Mr. [Michael J.] Kirwan [of Ohio]: Mr. Chairman, I make a point
of order against the amendment, in that it is legislation on an
appropriation bill. . . .
Mr. Ryan: Mr. Chairman, I submit the amendment is in order
because it is a limitation on the appropriation and how it shall be
spent. I believe the amendment is in order under previous rulings
and under section 843 of the rules of the House.
The Chairman: (1) The Chair is ready to rule.
---------------------------------------------------------------------------
1. Charles M. Price (Ill.).
---------------------------------------------------------------------------
It appears to the Chair that this is merely a limitation on an
appropriation bill; therefore, the point of order is overruled.
Sec. 68.7 To an appropriation bill providing funds for hospital
construction, an amendment providing that no part of the
appropriations in the paragraph under consideration be used for any
hospital having separate facilities on the basis of race, creed, or
color was held to be a limitation and in order.
On Mar. 27, 1962,(2) the Committee of the Whole was
consid
[[Page 6391]]
ering H.R. 10904, a Department of Health, Education, and Welfare
appropriation bill. The Clerk read as follows, and proceedings ensued
as indicated below:
---------------------------------------------------------------------------
2. 108 Cong. Rec. 5164, 5165, 87th Cong. 2d Sess.
---------------------------------------------------------------------------
Hospital Construction Activities
To carry out the provisions of title VI of the Act, as amended,
$188,572,000, of which $125,000,000 shall be for grants or loans
for hospitals and related facilities pursuant to part C. . . .
Mr. [William Fitts] Ryan of New York: Mr. Chairman, I offer an
amendment.
The Clerk read as follows:
Amendment offered by Mr. Ryan of New York: On page 25, line
21, immediately before the period insert the following ``:
Provided further, That no part of the amounts appropriated in
this paragraph may be used for grants or loans for any
hospital, facility, or nursing home established, or having
separate facilities for population groups ascertained on the
basis of race, creed, or color''. . . .
Mr. [John E.] Fogarty [of Rhode Island]: Mr. Chairman, I
reserve the point of order.
Mr. Ryan of New York: Mr. Chairman and Members of the House, I
rise to support an amendment which would provide a limitation upon
the appropriations for hospital construction activities: that is,
relating to page 25 of the bill.
Mr. Chairman, this amendment would prevent the use of funds
appropriated under the Hill-Burton Act for hospital construction
for segregated facilities.
The Hill-Burton program has provided Federal financing to help
construct more than 2,000 medical care facilities in 11 Southern
States. Since the inception of the Hill-Burton program these States
have received $562,921,000 for hospital construction. Authorities
have pointed out that virtually all of these institutions
discriminate in various ways against Negro citizens.
Patterns of discrimination may vary. For example, some
hospitals bar Negro patients altogether. The New York Times on
February 13, 1962, reported that, according to the Department of
Health, Education, and Welfare, 100 of the 4,000 Hill-Burton
hospitals bar Negroes. Others admit Negro patients, but segregate
them within the hospital. One hospital in Georgia, for example,
provides only 12 beds for Negro patients, and the beds are located
in a segregated section of the hospital in the basement. This
hospital also refuses to admit any Negro pediatric or maternity
cases. In addition, many Southern hospitals refuse to allow Negro
doctors to treat patients in the hospital, and discriminate against
Negroes in their employment practices.
Recently, discriminatory practices in federally aided hospitals
have been dramatized. On February 13, 1962, six Negro doctors and
three Negro dentists and two Negroes in need of medical care filed
a complaint in a Federal district court in Greensboro, N.C. The
complaint alleged that discriminatory practices in hospitals
violate the due process and equal protection clause of the fifth
amendment. The court has been asked to issue an injunction
prohibiting the defendants from--
Continuing to enforce the policy, practice, custom, and
usage of deny
[[Page 6392]]
ing admission to patients on the basis of race and in any way
conditioning or abridging the admission to, and use of, the
said facilities on the basis of race.
The pattern of discrimination may vary, Mr. Chairman, but there
is abundant evidence that the results seldom do. The policy of
``separate but equal'' in our medical care system almost invariably
results in the unequal or inadequate medical care for many American
citizens. Equality must be more than a mere slogan. It must, if we
are to be true to our democratic principles, be a reality.
I believe that the elimination of Federal expenditures for
segregated facilities is long overdue and that it is time for the
U.S. Congress to make clear that it does not condone racial
segregation in our hospitals nor the practice of using taxpayer's
money to support this doctrine. I hope that all the Members of this
body will support this amendment and uphold the principles upon
which our Nation was founded.
Civil rights is the great unfinished business facing America.
It is the unfinished business of Congress. Of course, I do not mean
to imply by my amendment that the executive branch is without power
to act in this situation, but I do believe that Congress has a
present responsibility. By adopting this simple amendment, we have
the opportunity to strike down one area of discrimination. Mr.
Chairman, I urge its adoption. . . .
Mr. Fogarty: Mr. Chairman, ever since I have been on this
committee I have opposed legislation on appropriation bills. In my
opinion, even though this is technically a limitation, this would
have the effect of changing existing law, the so-called Hill-Burton
Act. Therefore, I request that the amendment be voted down. . . .
The Chairman: (3) The gentleman from Rhode Island
has reserved his point of order. Does the gentleman from Rhode
Island insist on the point of order?
---------------------------------------------------------------------------
3. Omar T. Burleson (Tex.).
---------------------------------------------------------------------------
Mr. Fogarty: Mr. Chairman, I waive the point of order. I have
stated my reasons as to why the amendment should be defeated and I
ask the committee to vote down the amendment. . . .
Mr. James C. Davis [of Georgia]: Mr. Chairman, I was on my feet
at the time the gentleman from Rhode Island was recognized and I
was on my feet for the purpose of making a point of order against
the amendment. . . .
The Chairman: The gentleman from Georgia [Mr. James C. Davis]
now states he was on his feet attempting to press a point of order
against the amendment, but the Chair had understood that the
gentleman from Rhode Island did insist on his point of order.
However, the Chair was in error as to that and the gentleman from
Georgia is now recognized to make his point of order. . . .
Mr. James C. Davis: Mr. Chairman, I make a point of order
against the amendment on the ground that it is legislation on an
appropriation bill. . . .
The Chairman: The Chair is ready to rule.
The gentleman from New York has offered an amendment to which a
point of order has been made. . . .
The Chair is of the opinion that the amendment is a proper
limitation
[[Page 6393]]
under the rules of the House and, therefore, overrules the point of
order.
Busing of Students
Sec. 68.8 A provision in an appropriation bill prohibiting the use of
the funds therein ``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'' was held in
order as a limitation.
On July 31, 1969,(4) the Committee of the Whole was
considering H.R. 13111, an appropriation bill for the Departments of
Labor, and Health, Education, and Welfare.
---------------------------------------------------------------------------
4. 115 Cong. Rec. 21677, 21678, 91st Cong. 1st Sess.
---------------------------------------------------------------------------
The Clerk Read as follows:
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. [Silvio O.] Conte [of Massachusetts]: Mr. Chairman, I raise
the point of order on section 409 on page 56 of the bill that this
is legislation on an appropriation bill. It violates section 834 of
the House rules. It does not comply with the Holman rule. It is not
a retrenchment. In fact, it adds additional burdens and additional
duties, just as the Chair ruled against my amendment to section 408
because it would require additional personnel to determine whether
busing has been used, one, for the abolishing of any school and,
two, to require the attendance of any student at any particular
school. You would have to have investigators there to determine
this as a condition precedent to obtaining Federal funds otherwise
available to any State school district or school: No. 1, for the
abolition of any school, and No. 2, whether the attendance of any
student at any particular school could be investigated there to
determine this as a condition precedent to obtaining Federal funds
otherwise available to any State, school district or school.
Therefore, Mr. Chairman, I urge the Chairman to sustain the
point of order. . . .
Mr. [Jamie L.] Whitten [of Mississippi]: . . . Mr. Chairman, I
raised the point awhile ago that the gentleman, having asked
unanimous consent that the amendments to the two sections be
considered en bloc and having obtained that unanimous-consent
request, and after having the amendments considered en bloc in
connection with the two sections, that the House has already
considered section 409 and the point of order comes too late. That
is the situation on the one hand.
Second, a reading of the section clearly shows that the House
has already considered section 409 in connection with the prior
amendments. In addition to that, this is clearly a limitation on an
appropriation bill and does not have to conform to the Holman rule.
Mr. [Joe D.] Waggonner [Jr., of Louisiana]: Mr. Chairman--
[[Page 6394]]
The Chairman: (5) Does the gentleman from Louisiana
desire to be heard on the point of order?
---------------------------------------------------------------------------
5. Chet Holifield (Calif.).
---------------------------------------------------------------------------
Mr. Waggonner: I do, Mr. Chairman.
Mr. Chairman, this is clearly a limitation on the expenditure
of funds provided in this legislation. The wording of section 409
is identical in every respect with the wording of the language
included in the bill last year and agreed to by this House.
Therefore, we have the precedent of its having been accepted
without a point of order having been made.
Mr. Conte: Mr. Chairman, may I be heard further on the point of
order?
The Chairman: The Chair recognizes the gentleman from
Massachusetts for that purpose.
Mr. Conte: The point of order that was ruled against the
amendment offered was passed by this House last year on a unanimous
vote and no one raised a point of order on that.
The Chairman: The Chair is ready to rule. . . .
The clear intent of this section is to impose a negative
restriction on the use of the moneys contained in this bill.
The Chair has examined a decision in a situation similar to
that presented by the current amendment in the 86th Congress,
during consideration of the Defense Department appropriation bill,
an amendment was offered by Mr. O'Hara, of Michigan, which
provided--and the Chair is now paraphrasing--no funds appropriated
in that bill should be used to pay on a contract which was awarded
to the higher of two bidders because of certain Defense Department
policies. The Chairman of the Committee of the Whole, Mr. Keogh, of
New York, held the amendment in order as a limitation, even though
it touched on the policy of an executive department--86th Congress,
May 5, 1960; Congressional Record, volume 106, part 7, page 9641.
Chairman Keogh quoted, in his decision, the precedent carried in
section 3968 of volume IV, Hinds' Precedents, and the Chair thinks
the headnote of that earlier precedent is applicable here:
The House may provide that no part of an appropriation
shall be used in a certain way, even though executive
discretion be thereby negatively restricted.
The Chair overrules the point of order.
Parliamentarian's Note: But see Sec. 61.1, supra, where a
prohibition against the use of funds ``in order to overcome racial
imbalance'' was held to impose additional duties on federal officials
and was ruled out as legislation on July 31, 1969.
Sec. 68.9 To provisions in a general appropriation bill prohibiting the
use of funds therein to force any school district to take any
actions involving the busing of students, or other specified
actions, against the will of parents, or as a condition precedent
to obtaining federal funds, amendments limiting
[[Page 6395]]
the application of such provisions to those school districts in
which students are assigned to particular schools on the basis of
geographic attendance areas drawn without consideration of race
were held in order as adding definitions to the valid limitations
in the bill and as being merely descriptive of the school districts
covered thereby.
On Feb. 19, 1970,(6) the Committee of the Whole was
considering H.R. 15931, a Departments of Labor, and Health, Education,
and Welfare, appropriation bill, which contained the following
provisions:
---------------------------------------------------------------------------
6. 116 Cong. Rec. 4028, 4029, 91st Cong. 2d Sess. The provisions in
the appropriation bill containing the prohibition described
above are quoted on p. 4022, by Mr. Jamie L. Whitten (Miss.).
---------------------------------------------------------------------------
Sec. 408. No part of the funds contained in this Act may be
used to force any school district to take any actions involving the
busing of students, the abolishment of any school or the assignment
of any student attending any elementary or secondary school to 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 any school district to take any actions involving the
busing of students, the abolishment of any school or the assignment
of students to a particular school as a condition precedent to
obtaining Federal funds otherwise available to any State, school
district or school.
The following amendments were offered to such provisions, and a
point of order against the amendments was subsequently made:
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.''
On page 61, line 2, after the words, ``school district,''
insert the words, ``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 4, after the words, ``particular school,'' insert the
words, ``other than his neighborhood school.'' . . .
Mr. O'Hara: Mr. Chairman, these are the neighborhood school
amendments.
We have heard a good deal of oratory recently to the effect
that the problem of segregation in the South is just exactly like
the problem of segregation in the North, and that we ought to treat
the two alike and consider them the same.
[[Page 6396]]
Well, I do not happen to agree with that, Mr. Chairman, but I
am here giving a clear-cut opportunity to any southern school
system to enjoy the benefits of the Whitten amendment by
establishing a neighborhood school system in which attendance areas
are drawn without regard to race and in which personnel are
assigned without regard to race.
This amendment is designed to prevent a school district from
having its cake and eating it at the same time. The Whitten
amendment, if my amendments are adopted, would apply only to school
systems that have a bona fide neighborhood school system. It would
not apply to a school system that is already busing pupils in order
to maintain segregation. The Whitten amendments, if my amendments
are adopted, would not apply to dual school systems--the school
systems where they are now taking a black child who might live next
door to the white school and busing him across the county to the
black school. They would not obtain any benefit from the Whitten
amendments if my amendments to them are adopted.
Mr. Chairman, this is an eminently reasonable amendment, and I
hope it will be adopted.
Mr. Gerald R. Ford [of Michigan]: . . . [A]s 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. It is
clearly an instance of where the language proposed adds burdens and
is contrary to the rules of the House as far as legislation on an
appropriation bill is concerned. None of the additional burdens
were previously authorized by law. . . .
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. It does
not seek to insert the limitation or to provide for legislation. It
simply seeks to describe with more particularity the school
districts and the school systems to which the limitations in
sections 408 and 409 will apply. Therefore I submit it is not
legislation. . . .
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: (7) The Chair is prepared to rule.
---------------------------------------------------------------------------
7. 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
[[Page 6397]]
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.
CHAPTER 26
Unauthorized Appropriations; Legislation on Appropriation Bills
F. PERMISSIBLE LIMITATIONS ON USE OF FUNDS
Sec. 69. Commerce and Public Works
Maritime Commission; Limiting Funds for Vessel Construction
Sec. 69.1 To a paragraph of a bill providing money for construction of
ships by the Maritime Commission, an amendment prohibiting such
appropriation for the construction of any vessel for use as a naval
auxiliary that is not constructed on a reimbursable basis from
funds appropriated to the Navy Department pursuant to an act as
specified, was held a proper limitation on an appropriation bill
and in order.
On Feb. 26, 1943, the Committee of the Whole was considering H.R.
1974, a deficiency appropriation bill. Under consideration was the
following provision: (8)
---------------------------------------------------------------------------
8. 89 Cong. Rec. 1359, 1360, 78th Cong. 1st Sess.
---------------------------------------------------------------------------
Construction fund, United States Maritime Commission: To
increase the construction fund established by the Merchant Marine
act, 1936, $4,000,000,000: Provided, That the amount of contract
authorizations contained in prior acts for ship construction and
facilities incident thereto is hereby increased by $5,250,000,000
(toward which $3,076,280,455 is included to the amount appropriated
herein): Provided further, That without regard to the limitations
imposed thereon in the Independent Offices Appropriation Act, 1943,
the Commission is hereby authorized to incur obligations for
administrative expenses, including the objects specified in such
Appropriation Act, during the fiscal year 1943, of not to exceed
$16,625,000.
An amendment was offered, against which a point of order was made:
(9)
---------------------------------------------------------------------------
9. Id. at pp. 1362, 1363.
---------------------------------------------------------------------------
Amendment offered by Mr. [Carl] Vinson of Georgia: Page 11,
line 4, before the word ``Provided'', insert the following:
``Provided further, That no funds appropriated under this act shall
be available for the construction or acquisition and conversion of
any vessel for use as a naval auxiliary which is not constructed or
acquired and converted on a reimbursable basis from funds
appropriated to the Navy Department pursuant to an act authorizing
the construction or acquisition and conversion of auxiliary vessels
for the Navy Department, and.''
Mr. [Clarence] Cannon of Missouri: Mr. Chairman, I raise a
point of order against the amendment. . . .
Mr. Vinson of Georgia: Mr. Chairman, this is on the point or
order. I
[[Page 6398]]
submit this is not legislation on an appropriation bill. It is a
limitation on the money to be used in the construction of certain
types of ships. . . .
Mr. [W. Sterling] Cole of New York: Mr. Chairman, this
appropriation bill provides money for the construction of ships by
the Maritime Commission. As I understand the amendment offered by
the gentleman from Georgia, it simply limits those funds as to the
type of ships for which the funs might be used and is, therefore,
very definitely a limitation on the appropriation itself and not
legislation.
Mr. [Schuyler Otis] Bland [of Virginia]: Mr. Chairman, may I be
heard briefly?
The Chairman: (10) Yes.
---------------------------------------------------------------------------
10. Howard W. Smith (Va.).
---------------------------------------------------------------------------
Mr. Bland: Mr. Chairman, the beginning of the section is that
the appropriation is made to increase the construction fund
established by the Merchant Marine Act, 1936, and any amendment
such as proposed by the gentleman effects an amendment to the
Merchant Marine Act, 1936. If legislation is brought in to
accomplish the purpose which the gentleman desires, I have no
objection, but I am unable and he is unable to say what effect it
will have upon the fund that is provided for the work now in
progress. But whether that is true or not, it would be an amendment
to the construction fund provided by the Merchant Marine Act.
Mr. Vinson of Georgia: Mr. Chairman, here is an authorization
for the Maritime Commission to build ships, any kind of ships. We
put a limitation on it and say they cannot build a certain type of
ship. That certainly is not legislation. It is a limitation.
That is the whole point. . . .
The Chairman: The amendment offered by the gentleman from
Georgia [Mr. Vinson] provides for a limitation upon the
appropriation contained in this bill. Therein it differs from the
last amendment offered. . . .
The Chair thinks that clearly this is merely a limitation upon
an appropriation, therefore overrules the point of order.
Note: This amendment would probably be ruled out of order today,
because it appears to make the availability of funds contingent upon
future authorizations and future appropriations. Mr. Vinson's concern
is proposing the amendment seemed to be to ensure that money would not
be available, from the construction fund cited in the bill, for
construction of auxiliary vessels without specific authorization. He
had earlier (11) offered the following amendment.
---------------------------------------------------------------------------
11. 89 Cong. Rec. 1360, 78th Cong. 1st Sess.
---------------------------------------------------------------------------
Amendment offered by Mr. Vinson of Georgia: Page 11, line 4,
insert ``Provided further, That no funds appropriation under this
act or heretofore or hereafter appropriated under this heading,
shall be available for the construction or acquisition and
conversion of any vessels for use as a naval auxiliary, except on a
reimbursable basis from funds appropriation to the Navy Department,
pursuant to an act authorizing the construction or acquisition and
conversion of auxiliary vessels for the Navy Department.''
[[Page 6399]]
Explaining the amendment, Mr. Vinson stated:
Mr. Chairman, this is a very important matter, and I shall
state to the Committee how it happened, how it arose. In January
the Navy Department submitted to the Budget in the usual method
required by the Department for clearance, a bill to authorize the
construction of a million tons of auxiliary. Bear in mind that from
the beginning of time down to date the Navy has always controlled
what is known in the Navy as the auxiliary shipping bills. For
instance, in 1941 and 1942 we authorize 2,500,000 tons of
auxiliaries. In the past that authorization has been brought before
the House in a separate bill from the Naval Affairs Committee, and
when it becomes law, then we go to the Committee on Appropriations
to get the money to carry out the authorization. When the Navy
Department in January desired to build a million tons of auxiliary,
what happened? The Naval budget officer from the Navy, on January
13 went before the general Budget officials and they said this:
They state that they were already giving to the Maritime
Commission, Admiral Land, sufficient money to finance the
building of the merchant ships which can be built according to
the types which we call naval auxiliary tonnage. In addition to
that, they have given and propose to continue to give the War
Shipping Administration, also Admiral Land, plenty of money to
convert many of the ships for Army or Navy use. The paper today
states a request for $4,000,000,000 before Congress for the
Maritime Commission.
Here it is in the bill. Now, what does that mean? It means that
if the construction of the auxiliaries for the Navy, which are
composed of tankers, supply ships, repair ships, and other ships
that are armed but do not carry armament, they propose by the set-
up that is not being worked out with the Maritime Commission or the
War Shipping Administration, to give to the Navy its auxiliaries.
Now, I am opposed to the War Shipping Administration or the
Maritime Commission taking the place of Congress. In other words,
what is under way now is to circumvent Congress in making the
authorization, the Naval Affairs Committee in presenting it to the
House, and the Naval Appropriations Committee from making the
appropriation. We have no objection to the Maritime Committee
acting as the agent of the Navy to construct any of its
auxiliaries, but we do propose to enter a vigorous protest against
the Navy Department becoming the pensioner of the Maritime
Commission or the War Shipping Administration.
The amendment in that instance, however, was conceded to be out of
order.
Limiting Purchase of Foreign Agricultural Products if Domestic Supplies
Adequate
Sec. 69.2 To an appropriation bill, an amendment in the form of a
motion to recommit which provided that no funds should be used to
purchase any foreign dairy or other competitive agricultural
products produced in the
[[Page 6400]]
United States in sufficient quantities to meet needs, was held a
limitation and in order.
On May 19, 1939,(12) the House was considering H.R.
6392, a State, Justice, and Commerce Departments and Judiciary
appropriation bill. The Clerk read as follows:
---------------------------------------------------------------------------
12. 84 Cong. Rec. 5856, 76th Cong. 1st Sess.
---------------------------------------------------------------------------
Mr. [Charles] Hawks [Jr., of Wisconsin] moves to recommit the
bill to the committee with instructions to report it back forthwith
with the following amendment: At the end of the bill insert a new
paragraph, as follows:
``No part of the funds appropriated in this bill shall be used
for the purpose of purchasing any foreign dairy or other
competitive foreign agricultural products which are not [sic]
produced in the United States in sufficient quantities to meet
domestic needs.''
Mr. Thomas S. McMillan [of South Carolina]: Mr. Speaker, I make
a point of order against the motion to recommit.
The Speaker: (13) The gentleman will state the point
of order.
---------------------------------------------------------------------------
13. William B. Bankhead (Ala.).
---------------------------------------------------------------------------
Mr. Thomas S. McMillan: Mr. Speaker, I make the point of order
that the motion to recommit is not in order in that it is an
attempt to place legislation in an appropriation bill.
Mr. [Joseph W.] Martin [Jr.] of Massachusetts: Mr. Speaker, it
is a limitation on appropriations.
The Speaker: The Chair is ready to rule on the point of order
made by the gentleman from South Carolina.
The point of order has been made that the motion to recommit is
not in order because of the fact that it sets up matters of
legislation in an appropriation bill. The Chair has tried carefully
to read the provisions of the motion. On a fair reading and
construction of the whole motion it appears that there is nothing
affirmative in the motion in the way of legislation. It appears to
the Chair on the whole to be a restriction or a limitation upon the
expenditure of funds.
The Chair, therefore, overrules the point of order.
More recently, a provision with a similar intent contained in H.R.
14262, the Department of Defense appropriation bill, was ruled out of
order.(14) In that case, the portion of the bill in question
stated:
---------------------------------------------------------------------------
14. See 122 Cong. Rec. 19014, 94th Cong. 2d Sess., June 17, 1976.
---------------------------------------------------------------------------
Sec. 723. No part of any appropriation contained in this Act
shall be available for the procurement of any article of food,
clothing, cotton, woven silk or woven silk blends, spun silk yarn
for cartridge cloth, synthetic fabric or coated synthetic fabric,
or wool (whether in the form of fiber or yarn or contained in
fabrics, materials, or manufactured articles), or speciality metals
including stainless steel flatware, not grown, reprocessed, reused,
or produced in the United States or its possessions, except to the
extent that the Secretary of the Department concerned shall
determine that a satisfactory quality and sufficient quantity of
any articles of food or clothing or any form of cotton, woven silk
and woven silk
[[Page 6401]]
blends, spun silk yarn for cartridge cloth, synthetic fabric or
coated synthetic fabric, wool, or specialty metals including
stainless steel flatware, grown, reprocessed, reused, or produced
in the United States or its possessions cannot be procured as and
when needed at United States market prices.
The affirmative and express duty placed on the Secretary to make
the determinations described was probably a determining factor in the
Chair's ruling.
Federal-aid Airports
Sec. 69.3 To a section of an appropriation bill providing an
appropriation for the federal-aid airport program, an amendment
providing that ``no part of the appropriation . . . shall be used
for the development of class 4 and larger airports unless approval
of Congress is hereafter granted'' was held to be a limitation on
an appropriation bill restricting the availability of funds and in
order where existing law permitted inclusion of language making
that appropriation contingent upon subsequent congressional
approval.
On May 15, 1947,(15) the Committee of the Whole was
considering H.R. 3311, a State, Justice, and Commerce Departments
and Judiciary appropriation bill. The Clerk read as follows:
---------------------------------------------------------------------------
15. 93 Cong. Rec. 5379, 80th Cong. 1st Sess.
---------------------------------------------------------------------------
Amendment offered by Mr. [Kenneth B.] Keating [of New York]: On
page 49, line 2, after the word ``appropriation'', insert the
following: ``Provided further, That no part of the appropriation
made herein shall be used for the development of class 4 and larger
airports unless approval of Congress is hereafter granted.''. . .
Mr. [J. Percy] Priest [of Tennessee]: Mr. Chairman, I make a
point of order against this amendment as being legislation on an
appropriation bill. . . . It seems to me that the argument with
reference to the other point of order would apply here. The
Administrator, on February 19, 1947, has complied with the
requirement of law and has made the required report to Congress.
In reading section 8 of the act, the distinguished gentleman
from New York [Mr. Keating], in commenting on the point of order
made against the other amendment, it seems to me did not properly
interpret the last part of section 8 of the act, and that the
amendment actually would change the law by action on an
appropriation bill, when the act specifically says:
In granting any funds that thereafter may be appropriated
to pay the United States' share of allowable project costs
during the next fiscal year, the Administrator may consider
such appropriation as granting the authority requested, unless
a contrary intent shall have been manifested by the Congress by
a law or by concurrent resolution.
This, it would seem to me, would be by amendment to an
appropriation bill
[[Page 6402]]
rather than by a law or by a concurrent resolution, and it would
appear that the amendment is legislation on an appropriation bill.
Mr. Keating: Mr. Chairman, as indicated by the gentleman from
South Dakota [Mr. Case], this is clearly simply a limitation upon
the amount of an appropriation, and it seems to me to be clearly in
order.
The Chairman: (16) The Chair is of the opinion that
the amendment is a limitation, and the point of order is overruled.
---------------------------------------------------------------------------
16. Carl T. Curtis (Nebr.).
---------------------------------------------------------------------------
Parliamentarian's Note: The Chair apparently took the view that
existing law [60 Stat. 174, Sec. 8 of which was referred to by Mr.
Priest, above] permitted inclusion of the language making the
appropriation contingent upon subsequent congressional approval.
Public Works
Sec. 69.4 Language in an appropriation bill providing funds for the
construction of public works and specifying that none of the funds
appropriated should be used for projects not authorized by law ``or
which are authorized by a law limiting the amount to be
appropriated therefor, except as may be within the limits of the
amount now or hereafter authorized to be appropriated'' was held to
limit expenditures to authorized projects and a point of order
against the language as legislation was overruled.
On May 24, 1960,(17) the Committee of the Whole was
considering H.R. 12326. At one point the Clerk read as follows:
---------------------------------------------------------------------------
17. 106 Cong. Rec. 10979, 10980, 86th Cong. 2d Sess.
---------------------------------------------------------------------------
Construction, General
For the prosecution of river and harbor, flood control, shore
protection, and related projects authorized by law; detailed
studies, and plans and specifications, of projects (including those
for development with participation or under consideration for
participation by States, local governments, or private groups)
authorized or made eligible for selection by law (but such studies
shall not constitute a commitment of the Government to
construction); and not to exceed $1,400,000 for transfer to the
Secretary of the Interior for conservation of fish and wildlife as
authorized by law; $662,622,300, to remain available until
expended: Provided, That no part of this appropriation shall be
used for projects not authorized by law or which are authorized by
a law limiting the amount to be appropriated therefor, except as
may be within the limits of the amount now or hereafter authorized
to be appropriated. . . .
Mr. [H. R.] Gross [of Iowa]: Mr. Chairman, I make the point of
order against the language to be found on page 4, beginning on line
18 and into line 21, ``or which are authorized by a
[[Page 6403]]
law limiting the amount to be appropriated therefor, except as may
be within the limits of the amount now or hereafter authorized to
be appropriated.''
Mr. Chairman, I make the point of order against that language
on the ground that it is legislation on an appropriation bill. I
make the further point of order that this is authorizing
appropriations for projects not authorized by law. . . .
The Chairman: (18) The Chair is prepared to rule.
---------------------------------------------------------------------------
18. Hale Boggs (La.).
---------------------------------------------------------------------------
It so happens that almost an identical point of order to an
identical paragraph was raised on June 18, 1958, by the gentleman
from New York [Mr. Taber]. It also happens that the present
occupant of the chair was in the chair at that time. The Chair
ruled then that the language was specific, that there was no
question about its referring to the controlling phrase ``authorized
by law,'' and none of the appropriation can be expended unless
authorized by law.
The Chair overrules the point of order and sustains the ruling
made on June 18, 1958.
Parliamentarian's Note: It should be emphasized that the provision
in question did not permit appropriations for unauthorized projects,
but merely stated that where projects are authorized, even just for
planning, money is only available within limits now or hereafter
changed. This and related precedents are discussed further in Sec. 7,
supra. See, for example, the June 18, 1958, ruling discussed at
Sec. 7.10, supra.
Public Works Acceleration
Sec. 69.5 An amendment to a supplemental appropriation bill providing
funds for public works acceleration but prohibiting use of such
funds for (1) projects previously rejected and (2) projects, other
than for forest preservation, not requiring state or local matching
funds was held to be a limitation and in order.
On Apr. 10, 1963,(19) the Committee of the Whole was
considering H.R. 5517. The Clerk read as follows:
---------------------------------------------------------------------------
19. 109 Cong. Rec. 6130-32, 88th Cong. 1st Sess.
---------------------------------------------------------------------------
Amendment offered by Mr. [Edward P.] Boland [of Massachusetts]:
Page 7, after line 14 insert:
``Public Works Acceleration
``For an additional amount for `Public Works Acceleration',
$450,000,000: Provided, That no part of this appropriation shall be
used for any project that has ever been rejected by the Senate or
House of Representatives or by any Committee of the Congress:
Provided further, That no part of this appropriation shall be used
for any project that does not require a financial contribution from
State or local sources except projects dealing with
[[Page 6404]]
preservation of forests in the jurisdiction of the Department of
Agriculture and the Department of the Interior.''. . .
Mr. [Melvin R.] Laird [of Wisconsin]: I make the point of order
against the amendment on the basis that you are legislating in an
appropriation bill. This particular language which is added by this
amendment is, in fact, legislation.
The Chairman: (20) Will the gentleman state in what
respect it is legislation?
---------------------------------------------------------------------------
20. Richard Bolling (Mo.).
---------------------------------------------------------------------------
Mr. Laird: The legislation is in the proviso as far as the
matching formula is concerned, which is contrary to the basic law.
The second proviso of the amendment does not follow the basic act
which was passed in the last session of Congress and is, in fact,
legislation. . . .
Mr. [Albert] Thomas [of Texas]: . . . Mr. Chairman, I submit
that this language is accurate and in order. The gentleman refers
to the proviso ``providing further that no part of this
appropriation shall''. It only deals with this appropriation. It is
a limitation on the use of the fund and, therefore, I submit it is
in order.
The Chairman: The Chairman has had an opportunity to examine
the amendment and feels that the matter discussed is a limitation
on the appropriation. Therefore the Chair overrules the point of
order.
Parliamentarian's Note: The authorizing law, Public Law No. 87-658
(the Public Works Acceleration Act of 1962) required matching funds for
projects but did not contain the exception stated in the amendment for
projects dealing with preservation of forests. Had the argument been
pressed that to provide such an exception would allow an unauthorized
use of funds for forest projects which do not meet the conditions of
the authorizing legislation the Chair should have upheld the point of
order.
Public Buildings
Sec. 69.6 To an appropriation bill an amendment providing that ``none
of the funds herein appropriated shall be used for providing
facilities at Flint, Mich.'' was held in order as a limitation
restricting the availability of funds.
On July 22, 1954,(1) the Committee of the Whole was
considering H.R. 9936, a supplemental appropriation bill. The Clerk
read as follows, and proceedings ensued as indicated below:
---------------------------------------------------------------------------
1. 100 Cong. Rec. 11459, 11460, 83d Cong. 2d Sess.
---------------------------------------------------------------------------
For expenses necessary for alteration of Federal buildings to
provide facilities for additional Federal judges as authorized by
the act of February 10, 1954 (68 Stat. 8), and additional court
personnel, and for expansion of existing court facilities,
including costs of moving agencies thereby displaced from space in
Federal buildings, $3
[[Page 6405]]
million, to remain available until June 30, 1956.
Mr. [Elford A.] Cederberg [of Michigan]: Mr. Chairman, I offer
an amendment.
The Clerk read as follows:
Amendment offered by Mr. Cederberg: On page 12, line 21,
after ``1956'', insert ``Provided, That none of the funds
herein appropriated shall be used for providing facilities at
Flint, Mich.''
Mr. [Paul W.] Shafer [of Michigan]: Mr. Chairman, I make a
point of order against the amendment on the ground that it is
legislation on an appropriation bill.
Mr. Cederberg: Mr. Chairman, this is a limitation upon the
appropriation bill rather than legislation.
The Chairman: (2) The Chair is ready to rule. The
amendment offered by the gentleman from Michigan is definitely a
limitation. The point of order is overruled.
---------------------------------------------------------------------------
2. Leo E. Allen (Ill.).
---------------------------------------------------------------------------
Tennessee Valley Authority Personal Services
Sec. 69.7 To an appropriation bill, an amendment placing a limitation
on the amounts in the bill to be used for personal services in the
Tennessee Valley Authority was held to be a proper limitation since
restricted to funds in the bill.
On Mar. 21, 1952,(3) the Committee of the Whole was
considering H.R. 7072, an independent offices appropriation bill.
During consideration, a point of order against an amendment was
overruled as indicated below:
---------------------------------------------------------------------------
3. 98 Cong. Rec. 2674, 82d Cong. 2d Sess.
---------------------------------------------------------------------------
Amendment offered by Mr. [Kenneth B.] Keating [of New York]:
Page 35, line 24, strike out the period and insert a comma and add
the following: ``and not to exceed $99,131,125 of funds available
under this section shall be used for personal services.''. . .
Mr. [Albert] Thomas [of Texas]: I made the point of order that
it is legislation on an appropriation bill. It says ``funds
available.'' There are two types of funds available to the TVA--
appropriated funds and its own revenues. . . .
The Chairman: (4) The Chair is ready to rule.
---------------------------------------------------------------------------
4. Wilbur D. Mills (Ark.).
---------------------------------------------------------------------------
The Chair is of the opinion that the amendment refers only to
funds contained within this section of this bill and is merely a
negative limitation, which is in order. Therefore, the Chair
overrules the point of order.
Parliamentarian's Note: Just prior to this ruling, the Chair had
ruled out of order an amendment stating that ``not to exceed
$99,131,125 of the funds available to the Tennessee Valley Authority
shall be used for personal services.'' [See 98 Cong. Rec. 2673, 2674].
The Chair stated that that amendment was not limited to funds contained
in the bill.
[[Page 6406]]
Restricting Highway Funds to Limit Vehicle Weights
Sec. 69.8 An amendment to a general appropriation bill prohibiting the
use of Interstate Highway System funds in the bill by any state
which permits the Interstate System to be used by vehicles in
excess of certain sizes and weights but not interfering with
contractual obligations entered into prior to enactment was held in
order as a negative limitation on the use of funds in the bill
which did not impose new duties on federal officials (who were
already under an obligation to determine vehicle weights and widths
in each state) and which did not directly change any allocation
formula in existing law.
On July 10, 1975,(5) during consideration in the
Committee of the Whole of the Department of Transportation
appropriation bill (H.R. 8365), a point of order against an amendment
was overruled as follows:
---------------------------------------------------------------------------
5. 121 Cong. Rec. 22006, 22007, 94th Cong. 1st Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
Amendment offered by Mr. [Edward I.] Koch [of New York]:
page 35, after line 21, insert:
Sec. 315. (a) No part of any appropriation for the
Interstate System contained in this Act shall be available for
expenditure or obligation in any State within the boundaries of
which the Interstate System may lawfully be used by vehicles
with weight in excess of eighteen thousand pounds carried on
any one axle, or with a tandem-axle weight in excess of thirty-
two thousand pounds, or with an overall gross weight in excess
of seventy-three thousand two hundred and eighty pounds, or
with a width in excess of ninety-six inches, or the
corresponding maximum weights or maximum widths permitted for
vehicles using the public highways of such State under laws or
regulations established by appropriate State authority in
effect on July 1, 1956 (or in the case of the State of Hawaii
February 1, 1960), whichever is the greater.
(b) Subsection (a) of this section shall take effect in
each State on the 30th day after the 1st day of a regular
session of the legislature of that State which session begins
after the date of enactment of this Act.
(c) Nothing in this section shall be deemed to prohibit the
payment of any contractual obligation of the United States
entered into prior to the date of enactment of this Act.
Mr. [Silvio O.] Conte [of Massachusetts]: Mr. Chairman, I raise
a point of order against the amendment on the ground it is
legislation in an appropriation bill.
It imposes a tremendous amount of new duties on the Secretary
of Transportation, the Administrator of the Federal Highway System,
in order to enforce the law. . . .
Mr. [James C.] Wright [Jr., of Texas]: . . . This amendment, if
adopted, would require a great number of the States--28 of them, if
my information is current and correct--to amend
[[Page 6407]]
or repeal their own basic laws, adopted in good faith and in total
conformity with applicable Federal law, under pain of losing their
Federal highway apportionments. If that is not changing the basic
law, Mr. Chairman, it would be difficult, indeed, to conceive of a
provision which would change basic law.
This amendment, if adopted, would impose upon the
administrators in the Federal Highway Administration and the
Department of Transportation the duty of ascertaining just which
States had complied with this new directive, when they had come
into compliance with the new directive, whether their individual
statutes met the test herein prescribed, part of which test is
totally new to Federal law, whether their individual legislative
action had been timely within the meaning of this amendment, and
precisely how much of their entitlements were to be withheld based
upon their untimeliness or their total failure to comply. . . .
Moreover, the effect of the amendment would go far beyond the
period covered by the annual appropriation. I invite the attention
of the Chair to subsection (b) of the amendment as offered by the
gentleman from New York, which reads as follows:
Subsection (a) of this section shall take effect in each
State on the 30th day after the 1st day of a regular session of
the legislature of that State which session begins after the
date of enactment of this Act.
Therefore, this would be applicable at different times in
different States. Furthermore, it is a well-known and verifiable
fact, Mr. Chairman, that in some of the States the next regular
session of the legislature will not occur until the year 1977, and
therefore, the applicability of this provision in the current 1976
appropriations bill, if it were adopted, would not occur in some of
the States until many months after the expiration of the period for
which this appropriations bill is written, almost 2 years from the
present date.
An understanding of title 23 of the United States Code, which
sets forth the basic highway laws of the Nation, makes it
abundantly clear that the presently offered amendment, by its very
terms, would profoundly affect not only the present appropriation,
but future appropriations and apportionments under the law and the
basic legal relationship which present law prescribes between the
States and the Federal Government. . . .
Sections 104, 106, and 118 of title 23 set forth the manner of
apportionment and obligation of funds among the States, including
the approval of plans, specifications, and estimates for individual
projects, and mandate advance contractual obligations on the part
of the Federal Government.
They contain the declaration that--
On or after the date the funds are apportioned, they shall
be available for expenditure.
Section 104 requires that apportionments among the States be
based upon a ratio concerning the estimated cost of completing the
Interstate System within each such State. It also requires, Mr.
Chairman, in the interest of orderly planning and continuity, that
apportionments be made as far in advance of each fiscal year as
possible and, in no case, less than 18 months prior to the
beginning of that year.
So, if this amendment were adopted and were to go into effect
in some
[[Page 6408]]
States 18, 20 or 23 months from now, it would have a profound
effect on the duties of the Administrator in that not only would he
have to make ascertainments, he would have to make guesses in
advance as to whether a given State were going to comply with this
act, because the language compels him to make that apportionment 18
months in advance; and any apportionments withheld as a result of
this amendment clearly would affect and even control appropriations
and expenditures in future fiscal years. . . .
The Chairman: (6) the gentleman from Massachusetts
and the gentleman from Texas make a point of order against the
amendment offered by the gentleman from New York on the grounds
that it constitutes legislation and is not in order on an
appropriation bill.
---------------------------------------------------------------------------
6. John M. Murphy (N.Y.).
---------------------------------------------------------------------------
The Chair would first state that it is well settled that the
House may in an appropriation bill negatively deny the use or
availability of funds for certain purposes or to certain recipients
even though authorized by law, if the denial is limited to funds
contained in the bill and if the limitation does not constitute new
legislation.
The amendment offered by the gentleman from New York limits
itself to appropriations contained in the bill for the Interstate
System. The amendment denies the availability of such funds for
expenditure or obligation within States wherein certain truck
weights and widths may be lawfully used on the Interstate System.
The determination by the Federal Government, whether States
would meet the test mandated by the amendment, would not require
new affirmative duties. As Chairman Price ruled on December 11,
1973--the decision is noted in Deschler's Procedure, chapter 25,
section 16.2--almost any limitation on an appropriation bill
requires some determination to establish the fact whether the
limitation would apply, and it is in order to restrict the
availability of funds to recipients not meeting certain
qualifications as long as the determination of those qualifications
is readily ascertainable under existing law and facts. The Chair
would note that under section 127 of title 23 of the United States
Code, as amended by the Federal Aid Highway Amendments of 1974, the
Federal Government has the authority and duty to determine the
vehicle weights and widths which may be used in each State on the
Interstate System.
It has been contended that the amendment constitutes
legislation because it denies the availability of funds not only
for expenditures but also for obligation. Yet the limitation is
confined to the funds carried in the bill and would deny only their
use for certain obligations entered into. The amendment reaches no
funds which are not carried in the bill, and that goes to the point
raised by the gentleman from Texas that some State legislatures are
not in session on an annual basis. It has been held in order on an
appropriation bill to deny the use of funds in the bill for the
Export-Import Bank to guarantee the payment of certain obligations
therein-after incurred, as cited in Deschler's Procedure, chapter
25, section 16.5. Again Deschler's Procedure, chapter 25, section
17.1, indicates that an amendment
[[Page 6409]]
to an appropriation bill may provide that none of the funds therein
shall be available for payments on certain contracts, and 4 Hinds'
Precedents, section 3987, lays down the principle that an
appropriation may be withheld from a designated object although
contracts may be left unsatisfied thereby.
The amendment in issue does not seek to directly change a
formula, repeal a provision of law or require the use or allocation
of funds contrary to law. It simply denies appropriation for a
purpose which is authorized by law. For that reason the Chair
overrules the point of order.
CHAPTER 26
Unauthorized Appropriations; Legislation on Appropriation Bills
F. PERMISSIBLE LIMITATIONS ON USE OF FUNDS
Sec. 70. Defense
Prohibiting Funds for Invasion of North Vietnam
Sec. 70.1 To a bill making supplemental defense appropriations, an
amendment providing that none of the funds so appropriated be
available for implementation of any plan to invade North Vietnam
was held in order as a valid limitation restricting the
availability of funds.
On Mar. 16, 1967,(7) the Committee of the Whole was
considering H.R. 7123. During the proceedings, a point of order against
an amendment was overruled as indicated:
---------------------------------------------------------------------------
7. 113 Cong. Rec. 6886, 6887, 90th Cong. 1st Sess.
---------------------------------------------------------------------------
Amendment offered by Mr. [George E.] Brown of California: On
page 7, after line 13, insert the following:
``General Provision.--None of the funds appropriated in this
Act shall be available for the implementation of any plan to invade
North Vietnam with ground forces of the United States, except in
time of war.''
Mr. [George H.] Mahon [of Texas]: Mr. Chairman, I make the
point of order against the amendment that it is legislation on an
appropriation bill. It appears to be a limitation, but it is in
fact legislation, and I make a point of order on that ground. . . .
Mr. Brown of California: Mr. Chairman, I regret that the
distinguished chairman of the Committee [on Appropriations] has
seen fit to raise a point of order in connection with my amendment
in view of the language which is already contained in the bill with
regard to limitations on expenditures with regard to airlift and in
view of the precedents of the House with regard to limitations of
this sort. . . .
I would like to cite for the benefit of the Chairman Cannon's
precedents, paragraph 1657:
On March 22, 1922, the War Department appropriation bill
was under consideration in the Committee of the Whole House on
the state of the Union, when this paragraph was read:
``No part of the appropriations made herein for pay of the
Army shall be used, except in time of emergency, for the
payment of troops garrisoned in China or for payment of more
than 500 officers and enlisted men on the Continent of Eu
[[Page 6410]]
rope; nor shall such appropriations be used, except in time of
energency''--
And I call your attention specifically to the phrase ``except
in time of emergency''--
``for the payment of more than 5,000 enlisted men in the Panama
Canal Zone or more than 5,000 enlisted men in the Hawaiian
Islands.''
A point of order was made against this amendment on the same
grounds that the distinguished chairman of the Committee on
Appropriations, the gentleman from Texas [Mr. Mahon], has just made
his point of order--that it constituted legislation in a general
appropriation bill.
Mr. Chairman, the then chairman, Nicholas Longworth of Ohio,
ruled, in part, as follows:
The Chair will be very frank in saying that he is so much
opposed to this proposition that he has tried to find some way
of holding it out of order. But the Chair does not see how that
is possible in any way in compliance with the rules of the
House. . . .
The Chairman: (8) the Chair is prepared to rule.
---------------------------------------------------------------------------
8. James C. Wright, Jr. (Tex.).
---------------------------------------------------------------------------
The Chair is aware of the precedents cited by the gentleman
from California [Mr. Brown].
It appears clear to the Chair that the effect of the amendment
would be to impose a limitation upon the funds provided in this
appropriation bill. It is not within the province of the Chair to
pass judgment upon the broad philosophical intent or purpose or,
indeed, upon the broad philosophical effect of such an amendment.
The amendment, under the rules, appears clearly to follow
precedents. Its effect would be to restrict the application for
funds otherwise provided in the bill, and it appears to the Chair
that the amendment is in order as a limitation upon an
appropriation bill--and the Chair so rules. The Chair overrules the
point of order.
Age of Draftees
Sec. 70.2 A proposed amendment to an appropriation bill providing that
the appropriations in the Act not be available for the pay or
allowance of any person over a specified age who is inducted
without his consent into the armed forces, and that such
appropriations not be available, after a certain date, for any
other person inducted without his consent, was held to be a proper
limitation and in order.
On Apr. 13, 1949,(9) the Committee of the Whole was
considering H.R. 4146, a national military establishment appropriation
bill. The Clerk read as follows:
---------------------------------------------------------------------------
9. 95 Cong. Rec. 4533, 81st Cong. 1st Sess.
---------------------------------------------------------------------------
Amendment offered by Mr. [James G.] Fulton [of Pennsylvania]:
On page 76, insert after line 12, the following new section:
``Sec. 601. The appropriations in this act shall not be
available for the pay,
[[Page 6411]]
allowances, or travel of any person inducted without his consent
into the armed forces under the Selective Service Act of 1948, who
is, on July 1, 1949, over 22 years of age. The appropriations in
this act shall not be available, after September 24, 1949, for the
pay, allowances, or travel of any other person inducted without his
consent into the armed forces under the Selective Service Act of
1948. This section shall not apply with respect to any person who,
after June 24, 1948, or after the date of enactment of this act,
shall voluntarily have extended the term of his service.
Mr. [George H.] Mahon [of Texas]: Mr. Chairman, I make a point
of order against the amendment on the ground that it is legislation
on an appropriation bill. . . .
The Chairman: (10) the Chair is ready to rule.
---------------------------------------------------------------------------
10. Eugene J. Keogh (N.Y.).
---------------------------------------------------------------------------
An examination of the amendment offered by the gentleman from
Pennsylvania indicates that it is in the nature of a limitation on
the appropriation.
The point of order is overruled.
Compulsory College Military Training
Sec. 70.3 An amendment to a general appropriation bill providing that
none of the funds therein appropriated shall be used toward the
support of any compulsory military course or training in any civil
school or college was held to be a proper limitation restricting
the availability of funds and in order.
On Apr. 30, 1937,(11) the Committee of the Whole was
considering H.R. 6692, a War Department appropriation bill. The Clerk
read as follows, and proceedings ensued as indicated below:
---------------------------------------------------------------------------
11. 81 Cong. Rec. 4070, 75th Cong. 1st Sess.
---------------------------------------------------------------------------
Citizens' Military Training
reserve officers' training corps
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 such public animals, means of
transportation, supplies, tentage, equipment, and uniforms as he
may deem necessary, including cleaning and laundering of uniforms
and clothing at camps; and to forage, at the expense of the United
States, public animals so issued, and to pay commutation in lieu of
uniforms at a rate to be fixed annually by the Secretary. . . .
Mr. [Fred] Biermann [of Iowa]: Mr. Chairman, I offer an
amendment, which I send to the Clerk's desk.
The Clerk read as follows:
Amendment offered by Mr. Biermann: On page 62, line 7,
before the period, insert ``Provided further, That none of the
funds appropriated in this act shall be used for or toward the
support of any compulsory military course or military training
in any civil school or college, or for
[[Page 6412]]
the pay of any officer, enlisted man, or employee at any civil
school or college where a military course or military training
is compulsory, but nothing herein shall be construed as
applying to essentially military schools or colleges.''. . .
Mr. [John] Taber [of New York]: I make the point of order that
it is legislation. . . .
Mr. Biermann: May I call the attention of the Chairman to the
fact this identical amendment was ruled on a year ago?
The Chairman: (12) If the Chair were in doubt; the
Chair would welcome the gentleman's contribution.
---------------------------------------------------------------------------
12. John W. McCormack (Mass.).
---------------------------------------------------------------------------
This matter has been passed upon before.(13) the
amendment is clearly a limitation, and the Chair, therefore,
overrules the point of order.
---------------------------------------------------------------------------
13. See 7 Cannon's Precedents Sec. 1694.
---------------------------------------------------------------------------
Army Social Centers--Intoxicants
Sec. 70.4 To a paragraph making appropriations for the welfare of
enlisted men of the Army, an amendment providing that ``no part of
the funds appropriated under this head shall be available for
expenditure for the operation and maintenance of facilities where
intoxicating beverages are sold or dispensed'' was held to be a
proper limitation restricting the availability of funds and in
order.
On Sept. 26, 1940,(14) the Committee of the Whole was
considering H.R. 10572, a supplemental national defense appropriation.
A point of order against an amendment was overruled as follows:
---------------------------------------------------------------------------
14. 86 Cong. Rec. 12697, 76th Cong. 3d Sess.
---------------------------------------------------------------------------
For welfare of enlisted men, $2,572,594.
Mr. [Ulysses S.] Guyer of Kansas: Mr. Chairman, I offer an
amendment which is at the Clerk's desk.
The Clerk read as follows:
Amendment offered by Mr. Guyer of Kansas: Page 2, line 25,
after the heading of ``Welfare, enlisted men'', strike out the
period, insert a colon and the proviso, ``Provided, That no
part of the funds appropriated under this head shall be
available for expenditure for the operation and maintenance of
facilities where intoxicating beverages are sold or
dispensed.''
Mr. [Thomas C.] Hennings [Jr., of Missouri]: Mr. Chairman, I
make a point of order that the amendment is not in order.
Mr. Guyer of Kansas: Mr. Chairman, it is a limitation upon an
appropriation. . . .
The Chairman: (15) The Chair is prepared to rule.
The Chair feels that as the bill under consideration is a general
appropriation bill, appropriating among other things funds for the
personnel of the Army, the amendment offered by the gentleman from
Kansas (Mr. Guyer) is a proper limitation upon the use of the money
and therefore in
[[Page 6413]]
order. The Chair overrules the gentleman's point of order.
---------------------------------------------------------------------------
15. Joseph A. Gavagan (N.Y.).
---------------------------------------------------------------------------
Air Force Academy Construction
Sec. 70.5 To an appropriation bill, an amendment providing that no part
of the funds therein shall be used for construction of the Air
Force Academy chapel was held to be a limitation and in order.
On Aug. 6, 1957,(16) the Committee of the Whole was
considering H.R. 9131, a supplemental appropriation bill. The Clerk
read as follows, and proceedings ensued as indicated below:
---------------------------------------------------------------------------
16. 103 Cong. Rec. 13788, 85th Cong. 1st Sess.
---------------------------------------------------------------------------
Amendment offered by Mr. [Errett P.] Scrivner [of Kansas]: On
page 6, line 14, strike out the period, insert a semicolon and the
following: ``Provided, That no part hereof shall be applied to the
construction of the Air Force Academy chapel.''
Mr. [Frank] Thompson [Jr.] of New Jersey: Mr. Chairman, a point
of order.
The Chairman: (17) the gentleman will state it.
---------------------------------------------------------------------------
17. Paul J. Kilday (Tex.).
---------------------------------------------------------------------------
Mr. Thompson of New Jersey: Mr. Chairman, I make the point of
order that the amendment offered by the gentleman from Kansas [Mr.
Scrivner] is not in order since it is legislation on an
appropriation bill.
Mr. Scrivner: Mr. Chairman, this is a limitation on the
expenditure of funds, therefore the amendment I have offered is in
order.
The Chairman: The Chair is prepared to rule.
The gentleman from New Jersey [Mr. Thompson] makes the point of
order that the amendment offered by the gentleman from Kansas
constitutes legislation on an appropriation bill. The proviso
offered by the gentleman from Kansas is a limitation upon the
purpose for which the funds appropriated may be used therefore is
not legislation. The point of order is overruled.
Monitoring Workers' Efficiency
Sec. 70.6 Language in the military establishment appropriation bill
providing that no part of the appropriation made in the act would
be available for the salary of any officer having charge of any
employee while making (with a stop watch or other measuring device)
a time study of any job or the movements of any employee was held
to be a proper limitation on an appropriation bill and in order.
On June 21, 1946,(18) during consideration in the
Committee of the Whole of the military establishment appropriation bill
(H.R. 6837), the following point of order was raised:
---------------------------------------------------------------------------
18. 92 Cong. Rec. 7354, 79th Cong. 2d Sess.
---------------------------------------------------------------------------
Mr. [Ellsworth B.] Buck [of New York]: Mr. Chairman, I make the
point
[[Page 6414]]
of order against section 2 on page 5, which is plainly legislation
on an appropriation bill. . . .(19)
---------------------------------------------------------------------------
19. Section 2 provided: ``No part of the appropriations made in this
Act shall be available for the salary or pay of any officer,
manager, superintendent, foreman, or other person having charge
of the work of any employee of the United States Government
while making or causing to be made with a stop watch, or other
time-measuring device, a time study of any job of any such
employee between the starting and completion thereof, or of the
movements of any such employee while engaged upon such work;
nor shall any part of the appropriations made in this Act be
available to pay any premiums or bonus or cash reward to any
employee in addition to his regular wages, except as may be
otherwise authorized in this Act.''
---------------------------------------------------------------------------
Mr. Chairman, may I be heard on the point of order?
The Chairman: (20) The Chair will hear the gentleman
from New York.
---------------------------------------------------------------------------
20. R. Ewing Thomason (Tex.).
---------------------------------------------------------------------------
Mr. Buck: Mr. Chairman, the whole point of the section is to
discourage a supervisory employee from putting into effect
efficient operation. Further, it is entirely contradictory to the
provision in section 16, on pages 64 and 65, whereby efficiency is
to be increased. The two just do not go together.
The Chairman: On March 28, 1924, the Army appropriation bill
was under consideration in the Committee of the Whole House on the
state of the Union when the Clerk read a paragraph similar to this,
which was held to be a limitation rather than legislation.
Therefore, the point of order is overruled.
Lighter-than-air Craft Prohibited
Sec. 70.7 Language in a general appropriation bill providing that ``no
appropriation contained in this act shall be expended upon lighter-
than-air craft'' was held to be a proper limitation and in order.
On Apr. 30, 1937,(1) the Committee of the Whole was
considering H.R. 6692, a War Department appropriation bill. At one
point the Clerk read as follows:
---------------------------------------------------------------------------
1. 81 Cong. Rec. 4060-68, 75th Cong. 1st Sess.
---------------------------------------------------------------------------
Air Corps
air corps, army
For creating, maintaining, and operating at established flying
schools and balloon schools courses of instruction for officers,
students, and enlisted men, including cost of equipment and
supplies . . . Provided further, That no available appropriation
shall be used upon lighter-than-air craft, other than balloons, not
in condition for safe operation on June 30, 1937, or that may
become in such condition prior to July 1, 1938. . . .
Mr. [Dow W.] Harter [of New York]: Mr. Chairman, I make a point
of order against the language on page 37, beginning in line 22, all
of lines 23 and 24, and that part of line 1 on page 38 ending with
the semicolon after the figures ``1938.''
Mr. [J. Buell] Snyder of Pennsylvania: Mr. Chairman, I concede
the
[[Page 6415]]
point of order. We will offer an amendment later on.
The Chairman: (2) The point of order is sustained. .
. .
---------------------------------------------------------------------------
2. John W. McCormack (Mass.).
---------------------------------------------------------------------------
Mr. Snyder of Pennsylvania: Mr. Chairman, I offer a committee
amendment.
The Clerk read as follows:
Committee amendment offered by Mr. Snyder of Pennsylvania:
On page 37, after line 21, insert the following: ``Provided
further, That no appropriation contained in this act shall be
expended upon lighter-than-air craft, other than balloons, not
in condition for safe operation on July 1, 1937, or that may
become in such condition prior to July 1, 1938.''
Mr. Harter: Mr. Chairman, a point of order. That is purely
legislation and not proper on an appropriation bill. . . .
The Chairman: The Chair is prepared to rule.
The amendment as drawn is different from the proviso that was
contained in the bill as reported by the committee. The proviso
contained in the bill as reported by the committee related to all
existing appropriations. It was not confined to the present bill.
The amendment offered by the committee confines itself to the
present bill, and, in the opinion of the Chair, is clearly a
limitation. For this reason the point of order is overruled.
Work in Navy Shipyards
Sec. 70.8 An amendment to a Defense Department appropriation bill
providing that not more than a certain amount of funds therein for
alteration, overhaul, and repair of naval vessels shall be
available for such work in Navy shipyards was held in order as a
limitation on the use of funds in the bill.
On Sept. 14, 1972,(3) during consideration in the
Committee of the Whole of the Defense Department appropriation bill
(H.R. 16593), a point of order was raised against the following
amendment:
---------------------------------------------------------------------------
3. 118 Cong. Rec. 30749, 30750, 92d Cong. 2d Sess.
---------------------------------------------------------------------------
Amendment offered by Mr. [Glenn R.] Davis of Wisconsin: Page
51, line 21, insert a new section 743 as follows:
``Of the funds made available by this Act for the alteration,
overhaul, and repair of naval vessels, not more than $646,704,000
shall be available for the performance of such works in Navy
shipyards.''. . .
Mr. [Louis C.] Wyman [of New Hampshire]: I make the point of
order that the amendment proposed by the gentleman from Wisconsin
in the form in which it is presently worded does not constitute a
limitation, but is rather legislation upon an appropriations bill
contrary to the rules of the House.
The Chairman: (4) Does the gentleman from Wisconsin
care to be heard on the point of order?
---------------------------------------------------------------------------
4. Daniel D. Rostenkowski (Ill.).
---------------------------------------------------------------------------
Mr. Davis of Wisconsin: I do, Mr. Chairman. I submit to the
Chair that this is definitely a limitation on the amount of money
which may be spent for a specific purpose. I would suggest
[[Page 6416]]
to the Chair that it is clearly within the rules of the House as a
limitation on an appropriations bill.
The Chairman: The Chair has examined the amendment and feels
that it is a valid limitation on the funds made available in the
bill and overrules the point of order.
CHAPTER 26
Unauthorized Appropriations; Legislation on Appropriation Bills
F. PERMISSIBLE LIMITATIONS ON USE OF FUNDS
Sec. 71.--Military Contracts
Conventional Powerplant for Ship
Sec. 71.1 To a bill appropriating funds for defense procurement, an
amendment providing that none of the funds therein shall be
available for paying the cost of a conventional powerplant for a
designated ship was held to be a proper limitation and in order
even though it was apparent that there were no funds in the bill
for the ship in question.
On Apr. 22, 1964,(5) the Committee of the Whole was
considering H.R. 10939, a Department of Defense appropriation bill. A
point of order against an amendment was overruled as follows:
---------------------------------------------------------------------------
5. 110 Cong. Rec. 8802, 88th Cong. 2d Sess.
---------------------------------------------------------------------------
Amendment offered by Mr. [Craig] Hosmer [of California]: On
page 42, line 18, after line 18 insert a new section 540--and
renumber the following sections--to read as follows:
``None of the funds appropriated herein shall be available for
paying the cost of a conventional powerplant for CVA-67.''
Mr. [George H.] Mahon [of Texas]: Mr. Chairman, I make the
point of order that there are no funds in this bill for an aircraft
carrier.
The Chairman: (6) Does the gentleman desire to be
heard on the point of order?
---------------------------------------------------------------------------
6. Eugene J. Keogh (N.Y.).
---------------------------------------------------------------------------
Mr. Hosmer: Yes, I do.
The Chairman: The Chair will be pleased to hear him.
Mr. Hosmer: My point is, It is irrelevant whether or not there
are any funds in this bill. An amendment of this nature will lie
irrespective.
The Chairman: The Chair is ready to rule. . . .
. . . Apparently the only basis for that point of order is that
there are no funds in the pending bill to accomplish that which is
sought to be accomplished by the amendment. As futile, therefore,
as the amendment might be, it is in fact a limitation of the funds
herein appropriated and the Chair therefore overrules the point of
order.
Retired Military Officers Employed by Defense Contractors; Incidental
Duties Imposed on Officials
Sec. 71.2 Where the manifest intent of a proposed amendment is to
impose a negative limitation on the use of funds
[[Page 6417]]
appropriated in the bill, the implication that the administration
of the limitation will impose certain incidental burdens on
executive officers does not destroy the character of the
limitation. For example, an amendment providing that none of the
funds appropriated in a bill could be used to enter into contracts
with any concern having on its payroll a retired or inactive
military officer was held to be a limitation and in order.
On June 3, 1959,(7) the Committee of the Whole was
considering H.R. 7454, a Department of Defense appropriation bill. The
Clerk read as follows, and proceedings ensued as indicated below:
---------------------------------------------------------------------------
7. 105 Cong. Rec. 9741, 9742, 86th Cong. 1st Sess.
---------------------------------------------------------------------------
Construction of Ships, Military Sea Transportation Service,
Department of Defense
The appropriation to the Department of Defense for
``Construction of ships, Military Sea Transportation Service,''
shall not be available for obligation after June 30, 1959.
Mr. [Alfred E.] Santangelo [of New York]: Mr. Chairman, I offer
an amendment.
The Clerk read as follows:
Amendment offered by Mr. Santangelo: On page 25, after line
17, add new section, as follows:
General Provisions
``Sec. 301. None of the funds contained in this Title may
be used to enter into a contract with any person, organization,
company or concern which provides compensation to a retired or
inactive military or naval general officer who has been an
active member of the military forces of the United States
within 5 years of the date of enactment of this act.''. . .
Mr. [Gerald R.] Ford [of Michigan]: Mr. Chairman, it is
legislation on an appropriation bill. I will reserve a point of
order. . . .
Mr. Chairman, I renew my point of order. . . .
The Chairman: (8) The Chair is prepared to rule. . .
.
---------------------------------------------------------------------------
8. Eugene J. Keogh (N.Y.).
---------------------------------------------------------------------------
It is obvious that the intent of this amendment is to impose a
limitation on the expenditure of the funds here appropriated, and
while the point might be made that imposing limitations will impose
additional burdens, it is nevertheless the opinion of the Chair
clearly a limitation on expenditures, and therefore the Chair
overrules the point of order.
Parliamentarian's Note: In a similar ruling, on May 5, 1960, the
Chair allowed an amendment stating in part:
None of the funds contained in this Title may be used to pay or
reimburse any Defense Contractor which . . . within two years from
the release from active duty of a retired commissioned officer
knowingly permits any such retired commissioned officer to sell or
aid in the selling of anything of value to
[[Page 6418]]
the Department of Defense or an Armed Force of the United
States.(9)
9. 106 Cong. Rec. 9632, 9634-36, 86th Cong. 2d Sess.
---------------------------------------------------------------------------
In the current practice, however, it would probably be held that the
language denying funds to contractors who ``knowingly'' permit retired
officers to participate in the sales in question constitutes
legislation, in that it places on administrative officials the
additional burden of making findings as to the intent or state of
knowledge of the defense contractors described.
Resale of Subsidized Commodities
Sec. 71.3 An amendment to the war agencies appropriation bill providing
that no part of the appropriation in the pending bill shall be used
for payment to any person who pays any subsidy, authorizes the
payment of a subsidy, or participates in any of several stated
manners in the payment of subsidies involving the purchase of any
commodity by the government for the purpose of its resale at a
lower price than that paid by the government was held to be a
proper limitation and in order.
On June 18, 1943,(10) the Committee of the Whole was
considering H.R. 2968. The Clerk read as follows:
---------------------------------------------------------------------------
10. 89 Cong. Rec. 6111, 78th Cong. 1st Sess.
---------------------------------------------------------------------------
Salaries and expenses: For all necessary expenses of the Office
of Price Administration in carrying out the provisions of the
Emergency Price Control Act of 1942, as amended by the act of
October 2, 1942 (50 U.S.C. App. 901), and the provisions of the act
of May 31, 1941 (55 Stat. 236), as amended by the Second War Powers
Act, 1942 (50 U.S.C. App. 622), and all other powers, duties, and
functions which may be lawfully delegated to the Office of Price
Administration . . . $165,000,000 . . . [Provided], That no part of
this appropriation shall be available for making any subsidy
payments: Provided further, That no part of this appropriation
shall be used to enforce any maximum price or prices on any
agricultural commodity or any commodity processed or manufactured
in whole or substantial part from any agricultural commodity unless
and until (1) the Secretary of Agriculture has determined and
published for such agricultural commodity the prices specified in
section 3(a) of the Emergency Price Control Act of 1942; (2) in
case of a comparable price for such agricultural commodity, the
Secretary of Agriculture has held public hearings and determined
and published such comparable price in the manner prescribed by
section 3(b) of said act; and (3) the Secretary of Agriculture has
determined after investigation and proclaimed that the maximum
price or prices so established on any
[[Page 6419]]
such agricultural commodity will reflect to the producer of such
agricultural commodity a price in conformity with section 3(c) of
said act: Provided further, That any employee of the Office of
Price Administration is authorized and empowered, when designated
for the purpose by the head of the agency, to administer to or take
from any person an oath, affirmation, or affidavit when such
instrument is required in connection with the performance of the
---------------------------------------------------------------------------
functions or activities of said Office.
An amendment was offered, as follows: (11)
---------------------------------------------------------------------------
11. Id. at p. 6123.
---------------------------------------------------------------------------
Amendment offered by Mr. [Everett M.] Dirksen [of Illinois]:
Page 13, after line 3, add the following: ``Provided further, That
no part of any appropriation contained herein shall be used for
payment of the salary or expense of any person who, directly or
indirectly, pays any subsidy of any kind or character whatsoever,
or who directs or authorizes the payment of a subsidy, or who
participates in the preparation of or calculations for the payment
of a subsidy, or who directs any other person to pay or prepare or
calculate or supply information for the payment of a subsidy, or
any person who, directly or indirectly, collaborates with,
consults, cooperates with, or directly or indirectly aids any other
Federal agency for the payment or the preparation of a subsidy; or
of any person who engages or participates as aforesaid in the
preparation, formulation, or carrying out of any plan or scheme
involving the purchase of any commodity by the Government for the
purpose of its resale at a price lower than that paid by the
Government.''
Mr. [Emanuel] Celler [of New York]: Mr. Chairman, a point of
order.
The Chairman: (12) The gentleman will state it.
---------------------------------------------------------------------------
12. John J. Sparkman (Ala.).
---------------------------------------------------------------------------
Mr. Celler: Mr. Chairman, I make the point of order that the
amendment offered by the gentleman from Illinois is not germane and
is legislation on an appropriation bill. The rule under which this
bill was brought into this Chamber waived all points of order with
reference to limitations that were engrafted on the bill itself by
the Appropriations Committee. For example, a proviso was inserted
to the effect that no part of this appropriation shall be available
for making any subsidy payments. This type of provision was made
impervious to a point of order by the rule which brought this bill
into this Chamber, but I believe the rule would not preclude a
point of order I now make with reference to the amendment the
gentleman from Illinois has offered. So I make the point of order
that the amendment is legislation on an appropriation bill and not
a mere limitation of amount of appropriation nor a mere limitation
of purpose of the appropriation.
The Chairman: Does the gentleman from Illinois desire to be
heard?
Mr. Dirksen: Yes, Mr. Chairman. The point needs no belaboring.
This is purely a limitation.
The Chairman: The Chair is ready to rule.
The gentleman from New York makes the point of order against
the
[[Page 6420]]
amendment that it is legislation on an appropriation bill and that
it is not germane. The Chair thinks that the amendment is a
limitation and is not subject to the point of order, and therefore
overrules the point of order.
Inventions From Research and Development
Sec. 71.4 An amendment providing that none of the funds appropriated in
the bill may be used to enter into research or development
contracts under which new inventions or patents, conceived in the
process of performing the contract, do not become the property of
the United States was held to be a limitation restricting the
availability of funds and in order.
On May 5, 1960,(13) the Committee of the Whole was
considering H.R. 11998, which included the appropriation of funds for
research and development to be carried out directly by government
personnel and by contract. The following proceedings took place:
---------------------------------------------------------------------------
13. 106 Cong. Rec. 9624, 9627, 86th Cong. 2d Sess.
---------------------------------------------------------------------------
Mr. [Harris B.] McDowell [Jr., of Delaware]: Mr. Chairman, I
offer an amendment.
The Clerk read as follows:
Amendment offered by Mr. McDowell: On page 29, after line 13,
insert the following:
``Sec. 501. None of the funds appropriated in this Act
shall be available for making payments on any research or
development contract under which any invention, improvement, or
discovery conceived or first actually reduced to practice in
the course of performance of such contract or any subcontract
thereof, or under which any patent based on such invention,
improvement, or discovery, does not become the property of the
United States.''
And renumber the following sections accordingly. . . .
The Chairman: (14) The gentleman will state his
point of order.
---------------------------------------------------------------------------
14. Eugene J. Keogh (N.Y.).
---------------------------------------------------------------------------
Mr. [George H.] Mahon [of Texas]: The point of order is that
this proposed amendment would imply additional duties beyond the
scope of the bill.
The Chairman: Does the gentleman from Delaware desire to be
heard on the point of order?
Mr. McDowell: Yes; I do, Mr. Chairman.
Mr. Chairman, I cited to the Chair certain Hinds' and Cannon's
precedents which adequately demonstrate that the amendment does not
in any way restrict the administrative procedures under the act. It
is not retroactive in any sense of the word. With that, I simply
leave the matter at this point to the Chair for a ruling.
The Chairman: The Chair is ready to rule.
The gentleman from Delaware [Mr. McDowell] offered an amendment
in the language heretofore reported, and a point of order was made
by the gentleman from Texas [Mr. Mahon] that it was, in effect,
legislation on an appropriation bill, imposing additional du
[[Page 6421]]
ties on the executive branch of the Government.
The Chair has had an opportunity to reread the language of the
amendment and to refer to the precedents applicable, in the opinion
of the Chair, thereto. It is the opinion of this occupant of the
chair that the amendment offered by the gentleman from Delaware is,
in fact, a limitation on the appropriations appropriated in this
act, and while it may be argued that the limitation imposed causes
or results in additional burdens on the executive branch, in the
opinion of this occupant of the chair, that is normal and
reasonable to expect in the carrying out of the limitation.
Therefore, the Chair is constrained to overrule the point of
order.
The point of order is overruled.
Prohibiting Funds for Contracts Containing Specified Clause
Conditions for Dispute Settlement
Sec. 71.5 Language in an appropriation bill providing that no funds in
the bill shall be used for the purpose of entering into contracts
containing a certain condition was held to be a proper limitation
restricting the availability of funds and in order.
On Apr. 9, 1952,(15) the Committee of the Whole was
considering H.R. 7391, a Department of Defense appropriation bill. The
Clerk read as follows:
---------------------------------------------------------------------------
15. 98 Cong. Rec. 3891, 82d Cong. 2d Sess.
---------------------------------------------------------------------------
Sec. 635. No funds contained in this act shall be used for the
purpose of entering into contracts containing article 15 of the
Standard Government Contract, which reads as follows:
``Disputes: Except as otherwise specifically provided in this
contract, all disputes concerning questions of fact arising under
this contract shall be decided by the contracting officer subject
to written appeal by the contractor within 30 days to the head of
the department concerned or his duly authorized representative,
whose decision shall be final and conclusive upon the parties
thereto. In the meantime the contractor shall diligently proceed
with the work as directed.''
Mr. [Overton] Brooks [of Louisiana]: Mr. Chairman, I make a
point of order against the language in Section 365 on the ground
that it is legislation on an appropriation bill.
The Chairman: (16) If no one desires to be heard on
the point of order, the Chair is ready to rule. The Chair holds,
after careful consideration of the paragraph to which the gentleman
from Louisiana makes a point of order, that the language is a
limitation on an appropriation bill and therefore overrules the
point of order.
---------------------------------------------------------------------------
16. James W. Trimble (Ark.).
---------------------------------------------------------------------------
CHAPTER 26
Unauthorized Appropriations; Legislation on Appropriation Bills
F. PERMISSIBLE LIMITATIONS ON USE OF FUNDS
Sec. 72. District of Columbia
Public Assistance; Apportionment to Escape Deficiency
Sec. 72.1 An amendment to the District of Columbia appro
[[Page 6422]]
priation bill providing that no part of the appropriation for
public assistance shall be expended in such a manner as to require
a deficiency to supplement the appropriation was held to be a
proper limitation and in order as not changing the law 31 USC
Sec. 665(c) (see Revised Statutes Sec. 3679) already requiring
expenditures in such manner.
On Feb. 1, 1938,(17) the Committee of the Whole was
considering H.R. 9181. The Clerk read as follows, and proceedings
ensued as indicated below:
---------------------------------------------------------------------------
17. 83 Cong. Rec. 1364, 75th Cong. 3d Sess.
---------------------------------------------------------------------------
Public Assistance
For the purpose of affording relief to residents of the
District of Columbia who are unemployed or otherwise in distress
because of the existing emergency, to be expended by the Board of
Public Welfare of the District of Columbia by employment and direct
relief, in the discretion of the Board of Commissioners and under
rules and regulations to be prescribed by the board and without
regard to the provisions of any other law, payable from the
revenues of the District of Columbia, $900,000, and not to exceed
7\1/2\ percent of this appropriation and of Federal grants
reimbursed under this appropriation shall be expended for personal
services: Provided That all auditing, disbursing, and accounting
for funds administered through the Public Assistance Division of
the Board of Public Welfare, including all employees engaged in
such work and records relating thereto, shall be under the
supervision and control of the Auditor of the District of Columbia:
Provided further, That this appropriation shall be so apportioned
and distributed by the Commissioners over the fiscal year ending
June 30, 1939, and shall be so administered, during such fiscal
year, as to constitute the total amount that will be utilized
during such fiscal year for such purposes: Provided further, That
not more than $75 per month shall be paid therefrom to any one
family. . . .
Mr. [Ross A.] Collins [of Mississippi]: Mr. Chairman, I offer
an amendment, which I send to the Clerk's desk.
The Clerk read as follows:
Amendment offered by Mr. Collins: On page 58, line 2, after
the colon, insert ``Provided, That no part of this
appropriation shall be expended in such a manner as to require
a deficiency to supplement such appropriation.''
Mr. [Gerald J.] Boileau [of Wisconsin]: Mr. Chairman, a point
of order.
The Chairman: (18) The gentleman from Wisconsin [Mr.
Boileau] will state the point of order.
---------------------------------------------------------------------------
18. William J. Driver (Ark.).
---------------------------------------------------------------------------
Mr. Boileau: Mr. Chairman, I make the point of order that the
amendment offered by the gentleman from Mississippi [Mr. Collins]
would be legislation on an appropriation bill and therefore not in
order. The same argument and the same reasons would apply to this
amendment as to the former pro
[[Page 6423]]
viso which was stricken. It is legislation on an appropriation
bill.
The Chairman: The Chair is ready to rule.
The Chair has examined the amendment carefully and is of the
opinion this is a limitation; therefore the point of order is
overruled.(19)
---------------------------------------------------------------------------
19. The amendment was in fact in conformity with existing law [see 31
USC Sec. 665(c)], which required expenditures to be carried out
in the manner described in the amendment.
---------------------------------------------------------------------------
Segregation
Sec. 72.2 An amendment to a District of Columbia appropriation bill
providing that no part of the money contained therein should be
used for any agency, office, or department of the District of
Columbia which segregates the citizens of the District of Columbia
in employment, facilities afforded, services performed,
accommodations furnished, instructions, or aid granted, on account
of the race, color, creed, or place of national origin of the
citizens of the District of Columbia was held a proper limitation
restricting the availability of funds and therefore in order.
On Apr. 5, 1946,(20) the Committee of the Whole was
considering H.R. 5990. The Clerk read as follows:
---------------------------------------------------------------------------
20. 92 Cong. Rec. 3227-29, 79th Cong. 2d Sess.
---------------------------------------------------------------------------
Amendment offered by Mr. [Adam C.] Powell [Jr., of New York]:
In line 7, page 2, insert the following: ``Provided, That no part
of any appropriation contained in this act shall be used for any of
the purposes therein mentioned by any agency, office, or department
of the District of Columbia which segregates the citizens of the
District of Columbia in employment, facilities afforded, services
performed, accommodations furnished, instructions or aid granted,
on account of the race, color, creed, or place of national origin
of the citizens of the District of Columbia.''
Mr. [John E.] Rankin [of Mississippi]: Mr. Chairman, I make a
point of order against the amendment.
The Chairman: (1) The gentleman will state the point
of order.
---------------------------------------------------------------------------
1. Aime J. Forand (R.I.).
---------------------------------------------------------------------------
Mr. Rankin: Mr. Chairman, I make the point of order that the
amendment is not germane, and that it is legislation on an
appropriation bill, in that it attempts to change the fundamental
laws of the District of Columbia that have been established and in
effect for at least 80 years or probably a hundred years.
This amendment, if adopted, would destroy the school system of
the District of Columbia. It would stir up race hatred and bring
about race trouble, the like of which nothing else has ever
[[Page 6424]]
done in all the history of the District. If it is done, the effect
will be to destroy the legislation providing funds with which to
carry on the public schools in the District of Columbia. . . .
Mr. [Vito] Marcantonio [of New York]: Mr. Chairman, this
amendment is definitely a negative limitation. It prohibits the use
of funds appropriated in this bill for certain specific purposes
which are enumerated in the amendment. It does not change any
existing law and Congress has the right to withhold the funds for
any purpose enumerated in an appropriation act or to withhold funds
for any purpose for which an appropriation is being made.
This bill makes appropriations for the District of Columbia.
The amendment simply states that none of the funds appropriated in
this bill shall be expended to do certain things. . . .
There is no additional duty imposed upon anyone. The amendment
deals with an existing condition, that is, segregation in
education, segregation in recreation, in hospitals and other
places. . . .
The Chairman: The Chair is ready to rule.
The Chair has listened very attentively to the arguments pro
and con and has reached the conclusion that the Holman rule is not
in issue at the present moment. The wording of the amendment reads,
``Provided that no part of any appropriation contained in this act
shall be used for any of the purposes therein mentioned,'' and they
are enumerated.
After serious consideration, the Chair is of the opinion that
the amendment is a proper limitation and overrules the point of
order.
Teachers Doing Clerical Work
Sec. 72.3 An amendment to a District of Columbia appropriation bill
providing that no part of an appropriation shall be used to pay the
salary of any teacher performing any clerical work other than that
necessary or incidental to the classroom teaching assignments was
held to be a proper limitation and in order.
On Apr. 2, 1937,(2) the Committee of the Whole was
considering provisions of H.R. 5996, relating to appropriations for
personal services of teachers. An amendment was offered:
---------------------------------------------------------------------------
2. 81 Cong. Rec. 3106, 3107, 75th Cong. 1st Sess.
---------------------------------------------------------------------------
Mr. [Ross A.] Collins [of Mississippi]: Mr. Chairman, I offer
an amendment, which is at the desk.
The Clerk read as follows:
Amendment offered by Mr. Collins: On page 25, line 3, after
the word ``grades'' insert ``Provided, That no part of this
appropriation shall be used to pay the salary of any teacher
performing any clerical work other than that necessary or
incidental to the classroom teaching assignments.''
Mr. [Jack] Nichols [of Oklahoma]: Mr. Chairman, I raise a point
of order to that amendment for the same reason.(3) The
existing law today says
[[Page 6425]]
nothing about clerical work being done by teachers. This amendment,
of course, is introduced for the purpose of preventing teachers
from doing any clerical work. Even though it places a limitation on
some clerical work that they may be doing, it is contrary to
existing law and the point of order would lie.
---------------------------------------------------------------------------
3. The Chairman had just ruled out of order a provision in the bill
that ``teachers shall not perform any clerical work except that
which is necessary or incidental to their regular classroom
teaching assignments.''
---------------------------------------------------------------------------
The Chairman: (4) Does the gentleman from
Mississippi desire to be heard on the point of order?
---------------------------------------------------------------------------
4. Jere Cooper (Tenn.).
---------------------------------------------------------------------------
Mr. Collins: I do not, Mr. Chairman.
The Chairman: The amendment here offered by the gentleman from
Mississippi provides that no part of this appropriation shall be
used to pay the salary of any teacher performing any clerical work
other than that necessary or incidental to the regular classroom
teaching assignment.
The Chair is of opinion that this amendment in the form
presented is very clearly a limitation and retrenchment of
expenses, that it is germane, and that the point of order should be
overruled.
Airport Access Road
Sec. 72.4 To a bill appropriating funds for an additional Washington,
D.C. airport, an amendment placing a limit on the amount of the
appropriation which may be used for the construction of an
authorized access road was held to be a proper limitation and in
order.
On June 29, 1959,(5) the Committee of the Whole was
considering H.R. 7978, a supplemental appropriation bill. The Clerk
read as follows:
---------------------------------------------------------------------------
5. 105 Cong. Rec. 12121, 86th Cong. 1st Sess.
---------------------------------------------------------------------------
Amendment offered by Mr. [Albert] Thomas [of Texas]: On page 3,
line 6, after the word ``expended,'' insert ``provided that not to
exceed $400,000 of the foregoing appropriation may be used for an
access road north from the airport.''
Mr. [H.R.] Gross [of Iowa]: Mr. Chairman, I make a point of
order against the amendment on the ground that it is legislation on
an appropriation bill.
The Chairman: (6) Does the gentleman from Texas
desire to be heard on the point of order?
---------------------------------------------------------------------------
6. Paul J. Kilday (Tex.).
---------------------------------------------------------------------------
Mr. Thomas: Mr. Chairman, we think the amendment cures the
objection raised by the distinguished gentleman from Iowa. We think
this one is purely a straight limitation. It requires no outside
effort on the part of anybody. . . .
The Chairman: The Chair is prepared to rule. . . .
The Chair is constrained to hold that inasmuch as the access
roads were authorized by legislation creating the airport and that
the amount of $400,000 is a limitation on the purposes for which
funds may be used, that it is
[[Page 6426]]
germane to the bill and is not legislation.
The Chair overrules the point of order.
Personal Services
Sec. 72.5 Language in the District of Columbia appropriation bill
appropriating for personal services and providing that no other
appropriation made in the bill would be available for the
employment of additional assistant engineers or watchmen for the
care of the district buildings was held authorized by law and in
order.
On Jan. 31, 1938,(7) the Committee of the Whole was
considering H.R. 9181, the District of Columbia appropriation bill for
1939. At one point the Clerk read as follows, and proceedings ensued as
indicated below:
---------------------------------------------------------------------------
7. 83 Cong. Rec. 1303, 1304, 75th Cong. 3d Sess.
---------------------------------------------------------------------------
For personal services, including temporary labor, and service
of cleaners as necessary at not to exceed 48 cents per hour,
$129,000: Provided, That no other appropriation made in this act
shall be available for the employment of additional assistant
engineers or watchmen for the care of the District buildings.
Mr. [Byron B.] Harlan [of Ohio]: Mr. Chairman, I wish to make a
point of order against the proviso in this paragraph, but first I
wish to raise a point of order as to the entire paragraph. . . .
The Chairman: (8) The Chair is ready to rule. In the
pending appropriation bill this proviso is found on page 4, line
15, with respect to the care of District buildings:
---------------------------------------------------------------------------
8. William J. Driver (Ark.).
---------------------------------------------------------------------------
Provided, That no other appropriation made in this act
shall be available for the employment of additional assistant
engineers or watchmen for the care of the District Building.
To that proviso the gentleman from Ohio [Mr. Harlan] directs a
point of order upon the ground that the proviso is in the nature of
legislation which is not authorized by law.
Mr. [Millard F.] Caldwell [of Florida]: Mr. Chairman, a
parliamentary inquiry.
The Chairman: The gentleman will state it.
Mr. Caldwell: May I ask whether the point of order was not
later changed from the particular language referred to to the
entire section?
The Chairman: The Chair will reach that in a moment. The Chair
is now directing his attention to the proviso because the gentleman
from Ohio [Mr. Harlan], the gentleman from Mississippi [Mr.
Collins], and the gentleman from Oklahoma [Mr. Nichols] directed
their arguments largely to that proviso.
The authority for making appropriations for the care of
District buildings is found in Fiftieth Statutes at Large, page
377, in this language:
Provided, That all buildings belonging to the District of
Columbia
[[Page 6427]]
shall be under the jurisdiction and control of the
Commissioners of the District.
This proviso does not in any manner seek to take from the
District Commissioners their authority as custodians of the
buildings under their duties and responsibilities as Commissioners
of the District. This proviso in no manner contravenes the language
of this positive law. It is more in the nature of a limitation upon
the appropriation than a contravention or change of existing law.
Mr. [Jack] Nichols [of Oklahoma]: Mr. Chairman, will the Chair
permit an interruption?
The Chairman: The Chair will hear the gentleman.
Mr. Nichols: The point is, Mr. Chairman, that before this
proviso the existing law was that all of the buildings in the
District of Columbia should be under the control of the
Commissioners of the District, except certain buildings included in
which was the court building by specific provision. That was under
the control of the judges of the courts. This proviso wipes out the
control of the judges over this court building and places the
control in the Commissioners of the District of Columbia. To this
extent the proviso does change existing law.
The Chairman: The Chair will state to the gentleman from
Oklahoma that the feature to which the Chair is especially
addressing the ruling is whether this is a change of existing law.
The gentleman from Ohio bases his point of order on the ground that
this is a change of the law affecting the custody of the building
according to the statute the Chair just quoted. The proviso under
consideration in no manner changes existing law but is merely a
limitation on an appropriation. The Chair so holding must
necessarily overrule the point of order.
The gentleman from Ohio also directed the point of order
against the paragraph the first portion of which includes this
language:
For personal services, including temporary labor, and
service of cleaners as necessary at not to exceed 48 cents per
hour, $129,000.
Standing alone, as a matter of course, this language is immune
from a point of order because it is solely an appropriation for
personal services, and so forth. If, therefore, the argument
directed to the proviso goes down, necessarily the point of order
against the paragraph as a whole must go down.
The Chair overrules the point of order directed against the
paragraph.
CHAPTER 26
Unauthorized Appropriations; Legislation on Appropriation Bills
F. PERMISSIBLE LIMITATIONS ON USE OF FUNDS
Sec. 73. Education and Community Service; Health; Labor
Educational Assistance to Federally Impacted Areas
Sec. 73.1 To a general appropriation bill providing funds for
educational assistance to ``federally impacted areas,'' an
amendment providing that the appropriation shall not be available
for a certain percentage of children of parents who live or work on
[[Page 6428]]
federal property or where local contribution rates are not
determined in accordance with certain requirements specified in the
authorizing law was held a proper limitation restricting the
availability of funds and in order.
On May 4, 1966,(9) the Committee of the Whole was
considering H.R. 14745, a Departments of Labor, and Health, Education,
and Welfare appropriation bill. The Clerk read as follows, and
proceedings ensued as indicated below:
---------------------------------------------------------------------------
9. 112 Cong. Rec. 9833, 89th Cong. 2d Sess.
---------------------------------------------------------------------------
Amendment offered by Mr. [Frank T.] Bow [of Ohio]: On page 17,
at the end of line 18, strike out the period and insert the
following: ``Provided further, That this appropriation shall not be
available for payments to any local educational agency on account
of (1) three per centum of the total number of children in average
daily attendance in cases of children of parents who reside and
work on Federal property, or (2) six per centum of the total number
of children in average daily attendance in cases of children of
parents who reside or work on Federal property, or (3) local
contribution rates not determined in accordance with the first two
sentences of section 3(d) of such Act, as amended (20 U.S.C.
238(d)), with respect to the areas covered thereby.''
Mr. [Joel T.] Broyhill of Virginia: Mr. Chairman, a point of
order.
The Chairman: (10) the gentleman will state his
point of order.
---------------------------------------------------------------------------
10. Frank Thompson, Jr. (N.J.).
---------------------------------------------------------------------------
Mr. Broyhill of Virginia: I make a point of order in that this
would be legislation on an appropriation bill, because it would
change the basic formula which is contained in the authorizing
legislation. . . .
The Chairman: The Chair notes that the three categories which
are set forth in the amendment are merely limitations on an
appropriation bill and are proper in its context. The point of
order is overruled.
Parliamentarian's Note: The Chair apparently took the view that the
distribution of funds under the amendment did not represent an
alteration of the formula existing in law for allocating funds in
federally impacted areas; rather, that the amendment merely withheld a
portion of the funds that otherwise would have been distributed, the
statutory formula nevertheless remaining intact. In other rulings,
provisions relating to appropriations for educational assistance have
been prohibited as constituting a distributional scheme different from
that set forth in the authorizing law and, in some cases, as requiring
additional duties not found in existing law on the part of
administrative officials. See, for example, Sec. Sec. 36.10-36.12,
52.18 and 52.19, supra.
[[Page 6429]]
Sec. 73.2 Where legislation authorizing funds for impacted school aid
establishes an apportionment formula for distribution of that aid
to educational agencies, language in a general appropriation bill
reducing, in a uniform manner, amounts available to all agencies
for a certain category of such aid does not violate Rule XXI clause
2.
On Apr. 7, 1971,(11) during consideration in the
Committee of the Whole of the Education Department appropriation bill
(H.R. 7016), a point of order was raised against the following
provision:
---------------------------------------------------------------------------
11. 117 Cong. Rec. 10096, 92d Cong. 1st Sess.
---------------------------------------------------------------------------
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 September 23, 1950, as
amended (20 U.S.C., ch. 19), $577,000,000, of which . . .
$15,000,000 . . . shall be for providing school facilities as
authorized by said Act of September 23, 1950: Provided, That none
of the funds contained herein shall be available to pay any local
educational agency in excess of 68 per centum of the amounts to
which such agency would otherwise be entitled pursuant to section
3(b) of title I: Provided further, That none of the funds contained
herein shall be available to pay any local educational agency in
excess of 90 per centum of the amounts to which such agency would
otherwise be entitled pursuant to section 3(a) of said title I if
the number of children in average daily attendance in the schools
of that agency eligible under said section 3(a) is less than 25 per
centum of the total number of children in such schools.
Mr. [James G.] O'Hara [of Michigan]: Mr. Chairman, a point of
order.
The Chairman: (12) The gentleman will state his
point of order.
---------------------------------------------------------------------------
12. Chet Holifield (Calif.).
---------------------------------------------------------------------------
Mr. O'Hara: Mr. Chairman, I make a point of order against the
provisos appearing on page 3, beginning at line 4 and running through
line 15.
Mr. Chairman, the point of order is that the language referred
to constitutes legislation in an appropriation bill. It provides a
different method of making adjustments where necessitated by
appropriations than that provided in the authorizing legislation;
to wit, in section 203(c)(4) of Public Law 91-230. . . .
The Chairman: Does the gentleman from Pennsylvania desire to be
heard on the point of order?
Mr. [Daniel J.] Flood [of Pennsylvania]: Thank you, Mr.
Chairman.
Mr. Chairman, the language to which the gentleman objects is
clearly a limitation on the use of funds contained in this bill.
The language is germane and it is completely negative. In the words
of Chairman Nelson Dingley of Maine, which are quoted in Cannon's
Procedure in the House of Representatives--Chairman Dingley said:
[[Page 6430]]
The House in Committee of the Whole has the right to refuse
to appropriate for any object, either in whole or in part, even
though that object may be authorized by law. That principal of
limitation has been sustained so repeatedly that it may be
regarded as a part of the parliamentary law of the Committee of
the Whole. . . .
The Chairman: The Chair is prepared to rule.
The precedents which the gentleman from Michigan (Mr. O'Hara)
pointed to are quite familiar to the Chair. There is a subtle
difference between those amendments and the language that is before
us.
[The Chair has] examined these two provisions appearing in the
bill on page 3 and [has] reviewed the provisions of Public Law 874,
including the two rulings which were made by the Chair a year ago
on April 14 and February 19.
The first proviso uniformly reduces the amount available to the
school districts which are entitled to funds under section 3(b) of
Public Law 874, which is the section of the law which applies to
local educational agencies where the impact is due to children of
parents who reside or work on Federal property.
The second proviso limits the entitlement of certain local
educational agencies where the impact is due to school attendance
of children whose parents both reside and work on Federal property
as determined by section 3(a) of Public Law 874 if the number of
such children is less than 25 percent of the total number of
children in such school.
Under the law, the Commissioner of Education is already
required to determine the number of such children in this category
in average daily attendance and the schools so affected.
Determining these districts or local agencies where the 25-percent
limitation applies thus presents the Commissioner with no
substantial additional duties. He is already required by basic law
to make that determination.
The Chair feels the decision of the committee is valid; that
these provisos are in fact limitations couched in negative language
on the funds in the bill. The Chair therefore overrules the point
of order.
Health, Education, and Welfare Building Construction
Sec. 73.3 Language in an appropriation bill providing that none of the
funds in the bill shall be used for construction or planning of any
building of the Department of Health, Education, and Welfare, nor
to pay the salary of anyone in connection therewith, under the
lease-purchase program, was held to be a limitation and in order.
On Apr. 3, 1957,(13) during consideration in the
Committee of the Whole of H.R. 6287, a Departments of Labor, and
Health, Education, and Welfare appropriation bill, a point of order was
overruled as follows:
---------------------------------------------------------------------------
13. 103 Cong. Rec. 5040, 85th Cong. 1st Sess.
---------------------------------------------------------------------------
Sec. 211. None of the funds provided herein shall be used,
either directly or
[[Page 6431]]
indirectly, for construction or planning of any building for the
Department of Health, Education, and Welfare under the lease-
purchase program, nor shall any of the funds provided herein be
used to pay the salary of any person who assists or consults with
anyone in connection with the construction or planning of any
building for the Department of Health, Education, and Welfare under
the lease-purchase program.
Mr. (John W.) Byrnes of Wisconsin: Mr. Chairman, I make a point
of order against section 211 in its entirety as being legislation
on an appropriation bill. . . .
The Chairman: (14) The Chair is ready to rule.
---------------------------------------------------------------------------
14. Aime J. Forand (R.I.).
---------------------------------------------------------------------------
The gentleman from Wisconsin makes a point of order against
section 211 on page 38 of the bill. The Chair has read the section
and finds that it is a pure limitation, and therefore overrules the
point of order.
College Housing Construction; No Funds ``Unless in Compliance With
Law''
Sec. 73.4 To an appropriation bill providing for construction of
college housing, an amendment specifying that none of the funds may
be allocated to an institution unless it is in full compliance with
a law requiring the withholding of funds to students who are
convicted of engaging in campus disorders was held to be a
limitation (not requiring additional duties on the part of any
federal official) and in order.
On June 24, 1969,(15) the Committee of the Whole was
considering H.R. 12307, an appropriation bill for independent offices
and the Department of Housing and Urban Development. The Clerk read as
follows:
---------------------------------------------------------------------------
15. 115 Cong. Rec. 17085, 91st Cong. 1st Sess.
---------------------------------------------------------------------------
For payments authorized by section 1705 of the Housing and
Urban Development Act of 1968, $2,500,000: Provided, That the
limitation otherwise applicable to the total payments that may be
required in any fiscal year by all contracts entered into under
such section is increased by $5,500,000.
Mr. [William J.] Scherle [of Iowa]: Mr. Chairman, I offer an
amendment.
The Clerk read as follows:
Amendment offered by Mr. Scherle: On page 35, at the end of
line 24, strike the period and insert the following: ``And
provided further, 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.''
Mr. [William F.] Ryan [of New York]: Mr. Chairman, I make a
point of order against the amendment.
The Chairman: (16) The gentleman will state his
point of order.
---------------------------------------------------------------------------
16. John S. Monagan (Conn.).
---------------------------------------------------------------------------
[[Page 6432]]
Mr. Ryan: I make a point of order on the ground that this
amendment is legislation on an appropriation bill. . . .
Mr. Scherle: Mr. Chairman, the amendment is in order because it
is in conformity with rule 21, clause 2 . . . specifying that
amendments to appropriation bills are in order if they meet the
qualifications of the ``Holman Rule.''
My amendment is germane, negative in nature, and shows
retrenchment on its face. It does not either impose any additional
or affirmative duties or amend existing law. . . .
In support of my amendment, I cite section 843 of the rules of
the House discussing the Holman rule under rule 21: . . .
The Chairman: The Chair is prepared to rule and holds that the
amendment is a proper limitation. Therefore, the Chair overrules
the point of order.
Parliamentarian's Note: This ruling (and Public Law No. 90-575
Sec. 504) are discussed more fully in Sec. 53, supra, in relation to
other rulings which concern the issue of what constitutes the
imposition of additional duties on officials, and whether the
imposition of such duties on nonfederal officials or private parties
amounts to legislation on appropriation bills. (See the ``Note on
Contrary Rulings'' following Sec. 53.6.) Such rulings have not been
uniform, and some effort in Sec. 53 is made to clarify the trend of
these rulings. Rulings discussed include those with respect to attempts
to limit or prohibit funds for certain types of projects not having
``local'' approval, where such approval is not required in the
authorizing law.
Discrimination
Sec. 73.5 To the labor-federal security appropriation bill, an
amendment providing that no part of any appropriation under one of
its titles shall be paid as grants to state or educational
institutions in which because of race, color, or creed,
discriminatory practices deny equality of educational opportunity
or employment was held germane and in order.
On Mar. 8, 1948,(17) an amendment was offered as follows
to the Department of Labor and Federal Security Agency appropriation
bill of 1949: (18)
---------------------------------------------------------------------------
17. 94 Cong. Rec. 2356, 80th Cong. 2d Sess.
18. H.R. 5728.
---------------------------------------------------------------------------
Amendment offered by Mr. [Vito] Marcantonio [of New York]: On
page 27, after line 22, insert a new section:
``Sec. 207. No part of any appropriation under this title shall
be paid as grants to any State or educational institution in which,
because of race, color, or creed, discriminatory practices
[[Page 6433]]
deny equality of educational opportunity or employment to any one
to pursue such educational courses or employment as are provided
for by such a grant.''
The point of order which followed did not expressly raise the issue
of whether the above language constituted legislation, but the Chair,
in ruling that the amendment was germane, implicitly recognized Mr.
Marcantonio's position that the amendment was permissible as a negative
limitation on the use of funds. The point of order and ruling thereon
were as follows:
Mr. [John E. Rankin] [of Mississippi]: Mr. Chairman, I make a
point of order against the amendment that the amendment is not
germane and it is not in order at this point in the bill. I will
reserve the point of order if the gentleman wants to discuss the
matter.
Mr. Marcantonio: No. Let us have it decided now. . . . The
amendment certainly is germane. It is simply a negative limitation.
It restricts the use of the funds and it is clearly in order.
The Chairman [Forest A. Harness, of Indiana]: There is no
question but that the amendment is germane. This is an
appropriation bill and the amendment deals with an appropriation
made in the bill. Therefore the Chair overrules the point of
order.(19)
---------------------------------------------------------------------------
19. See also Sec. Sec. 61 and 68, supra, for more precedents relating
to civil liberties.
---------------------------------------------------------------------------
Cut Off in Certain Education Funds to Students
Sec. 73.6 Where existing law authorized basic opportunity grants for
higher education assistance to students in all years of study, an
amendment prohibiting the availability of funds in a general
appropriation bill for assistance to students enrolled prior to a
date certain was held in order as a negative limitation on the use
of funds in the bill.
On June 27, 1974,(20) during consideration of the
Departments of Labor, and Health, Education, and Welfare appropriation
bill (H.R. 15580), the following amendment was ruled in order as
indicated below:
---------------------------------------------------------------------------
20. 120 Cong. Rec. 21671, 21672, 93d Cong. 2d Sess.
---------------------------------------------------------------------------
Mr. [Daniel J.] Flood [of Pennsylvania]: Mr. Chairman, I offer
an amendment.
The Clerk read as follows:
Amendment offered by Mr. Flood: Page 18, line 7, insert ``:
Provided, That none of the funds in this Act shall be used to
pay any amount for basic opportunity grants for full-time
students at institutions of higher education who were enrolled
as regular students at such institutions prior to April 1,
1973.'' . . .
Mrs. [Edith] Green of Oregon: Mr. Chairman, I make a point of
order
[[Page 6434]]
against this amendment. The point of order is what I cited a moment
ago, Cannon's Procedure in the House of Representatives, on page
246:
If a part of a paragraph . . . is out of order, all is out
of order and a point of order may be raised against the portion
out of order or against the entire paragraph. . . .
The Chairman: (1) The Chair is prepared to rule.
---------------------------------------------------------------------------
1. James C. Wright, Jr. (Tex.).
---------------------------------------------------------------------------
The amendment offered by the gentleman from Pennsylvania (Mr.
Flood), does appear to meet the tests of a limitation on an
appropriation bill. It limits the funds in this specific bill and
it is negatively stated. For these reasons it would clearly appear
to be admissible as a limitation, distinguishable from that
language which was stricken in the proviso that had appeared in the
original bill.
The Chair does not understand that the gentlewoman had raised a
point of order against the entire paragraph. The gentlewoman raised
two specific points of order on which the Chair ruled.
If the gentlewoman had at that time intended to make a point of
order against the entire paragraph she should so have stated, and
the Chair believes that a point of order at this moment on those
grounds would be untimely made since an amendment to the paragraph
is now pending.
Busing to Schools Nearest Home
Sec. 73.7 Where existing law prohibited the implementation by any
court, department, or agency of a plan to transport students to a
school other than the school nearest or next nearest their homes
which offers the appropriate grade level and type of education for
each student (thus requiring determinations of school proximity and
curriculum to be made by federal officials), a paragraph in a
general appropriation bill prohibiting the use of funds therein for
the transportation of students to a school other than the school
nearest their homes and offering the courses of study pursued by
such students was held in order as a negative limitation on the use
of funds in that bill, since it did not directly amend existing law
and did not require new determinations by federal officials that
they were not already required by law to make.
The proceedings of June 24, 1976,(2) are discussed in
Sec. 64.26, supra.
---------------------------------------------------------------------------
2. 122 Cong. Rec. 20408-10, 94th Cong. 2d Sess.
---------------------------------------------------------------------------
[[Page 6435]]
Abortion; Broad Limitation of Funds
Sec. 73.8 An amendment restricting the use of funds in an appropriation
bill for abortion or abortion referral services, abortifacient
drugs or devices, the promotion or encouragement of abortion,
etcetera, was held to be a negative limitation on funds in the bill
imposing no new duties on federal officials other than to construe
the language of the limitation in administering the funds.
On June 27, 1974,(3) during consideration in the
Committee of the Whole of the Departments of Labor, and Health,
Education, and Welfare appropriation bill (H.R. 15580), an amendment
was held in order as follows:
---------------------------------------------------------------------------
3. 120 Cong. Rec. 21687, 93d Cong. 2d Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
Amendment offered by Mr. [Angelo D.] Roncallo of New York:
Amend H.R. 15580 by adding a new section 412 on page 39 of
the bill as follows:
Sec. 412. No part of the funds appropriated under this Act
shall be used in any manner directly or indirectly to pay for
abortions or abortion referral services, abortifacient drugs or
devices, the promotion or encouragement of abortion, or the
support of research designed to develop methods of abortion, or
to force any State, school or school district or any other
recipient of Federal funds to provide abortions or health or
disability insurance abortion benefits. . . .
Mr. [Sidney R.] Yates [of Illinois]: Mr. Chairman, I make a
point of order against the second amendment proposed by the
gentleman from New York.
My grounds are the same as to the previous amendment, Mr.
Chairman; namely, that this is legislation on an appropriation
bill.
Second, that it requires new duties on the part of officials in
connection with the operation of this amendment.
I particularly call the attention of the Chair to the use of
the term ``promotion or encouragement of abortion.''
This phrase will require additional duties on the part of the
outside officials. Therefore, it goes beyond the scope of an
appropriation provision. . . .
Mr. [Bob] Eckhardt [of Texas]: . . . The language of the
revised section 412 necessarily requires a definition of what
constitutes the moment of fertilization, in that the term
abortifacient drug or devices is used.
Now, the question of whether or not a drug or device is
abortifacient depends on the moment of fertilization. If it is to
be not abortifacient, it prevents fertilization. If it comes under
the language of this act, the moment of fertilization must occur
before the drug or the device acts upon the inseminated egg.
Therefore, there is an absolutely necessary determination by
the agency of the moment of fertilization.
Furthermore, there is the term abortion, the term abortion must
nec
[[Page 6436]]
essarily determine the definition as contained in the last line
and, therefore, requires affirmative duties on the part of the
agency. . . .
Mr. [Robert E.] Bauman [of Maryland]: Mr. Chairman, as
originally offered, the amendment of the gentleman from New York
definitely did require some sort of action on the part of the
Government officials, but I heartily disagree with the statements
that have been made here.
There are no additional duties imposed whatsoever. In fact,
like the antibusing amendment in the two other sections, it is a
limitation on the expenditure of funds in this bill just as the
rules provide. No new duties and no directions are allowed.
Abortion is a well understood term, and is found in any dictionary.
It is perfectly admissible under the rules of the House.
The Chairman: (4) The Chair is prepared to rule.
---------------------------------------------------------------------------
4. James C. Wright, Jr. (Tex.).
---------------------------------------------------------------------------
As originally offered, the amendment contained a definition of
abortion which would have defined that term as being the
intentional destruction of unborn human life, which subjected the
amendment to a successful challenge on the ground that it would
have imposed upon an administrator the responsibility of
determining a question of another person's intent.
There have been precedents under which that type of a
requirement has been held to be legislation on an appropriation
bill.
As presently constituted, the amendment secondly offered by the
gentleman from New York, in the opinion of the Chair, contains no
direction nor immediately discernible new duty incumbent upon its
administrator beyond the fact that every limitation is a
compilation of words if it is written into a law, and it always
would devolve upon an administrator to interpret the meaning of the
words therein contained. It would be, of course, manifestly
contrary to the main thrust of the rulings of the Chair if
limitations were to be construed as legislation merely because
their enactment would require some statutory interpretation.
Under the circumstances, the Chair, the present occupant having
carefully examined the amendment and carefully listened to the
arguments, is constrained to overrule the point of order.
Occupational Safety and Health Act Enforcement--Salary Cut Off for
Inspectors of Certain Size Firms
Sec. 73.9 An amendment prohibiting the payment of funds for salaries of
federal employees ``who inspect firms employing 25 or fewer persons
to enforce compliance with the Occupational Safety and Health Act''
was held in order as a negative limitation on the availability of
funds in a general appropriation bill which merely described a
category of employees who would not be compensated from those
funds.
On June 27, 1974,(5) during consideration in the
Committee of the Whole of
[[Page 6437]]
the Departments of Labor, and Health, Education, and Welfare
appropriation bill (H.R. 15580), an amendment was held in order as
follows:
---------------------------------------------------------------------------
5. 120 Cong. Rec. 21652, 21662, 21663, 93d Cong. 2d Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
For necessary expenses for the Occupational Safety and Health
Administration, $100,816,000.
Mr. [Paul] Findley [of Illinois]: Mr. Chairman, I offer an
amendment.
The Clerk read as follows:
Amendment offered by Mr. Findley: On Page 6, after line 17,
add the following:
``None of the funds appropriated by this Act shall be
expended to pay the salaries of any employees of the Federal
Government who inspect firms employing twenty-five or fewer
persons to enforce compliance with the Occupational Safety and
Health Act of 1970.'' . . .
Mr. [Joseph M.] Gaydos [of Pennsylvania]: Mr. Chairman, I have
to raise a point of order for the reason it is a limitation on an
appropriation bill.
Very hurriedly, let me state that a limitation on an
appropriation bill is legitimate if and only if:
First, it is worded so that it limits the use of money, rather
than limiting the discretion of an Executive officer to carry out
his duties;
Second, it applies only to the use of the present appropriation
rather than attempting to legislate a permanent restraint on the
spending authority of an Executive officer.
An amendment which forbids the Secretary of the Treasury from
paying the salary of OSHA inspectors out of the current DOL
appropriation for the inspections of premises of employers with 25
or fewer employees, would seem to meet these criteria. There are,
however, three arguments which seem to indicate that this
limitation is in fact legislation and therefore not appropriate
under House rule 21, clause 2.
First, section 8(f) of the act provides that an employee in any
size business may file a complaint with the Secretary of Labor, and
the Secretary must respond to such complaint. Further, this
employee right is protected by the antidiscrimination clause of
section 11(c) of the act. Failure to provide the Secretary with the
funds to respond to these employee complaints leaves these
employees with a protected right but without a remedy, a situation
abhorred by the law. It effectively amends OSHA to remove the right
for a group of employees, and there is no rational basis for this
sort of discrimination. While it is well established that the
Congress may pass a law creating a Government authority or function
and then withhold funds from it, it is questionable whether there
is any precedent for using a limitation to delete the remedy for a
legislatively established right vested in an individual. The mover
of the amendment should be asked to provide such a precedent.
Second, the inspectors used by the Secretary of Labor to carry
out all investigations are assigned to regions at the present time
on the basis of the concentration of businesses in each region--all
businesses. The vast majority of businesses do employ under 25
persons, and following the terms of the amendment, these could no
longer be counted in the computation by the Secretary of Labor. . .
. In short the amendment imposes a substantial burden upon the
Secretary of Labor, and
[[Page 6438]]
the precedents are clear that a limitation may not impose any
additional duties upon an executive officer.
Finally, OSHA is a carefully developed law which was the result
of deliberate balancing of employee and employer rights by the
appropriate committees of the Congress, and any change in that
balance effectively constitutes legislation. Since the amendment
would change the rights of some employees, it should, therefore,
not be attached to an appropriations bill. . . .
Mr. Findley: . . . Mr. Chairman, in fact this language is so
close to being identical to a number of other similar amendments
offered and sustained by rulings of the Chair, that I am surprised
that any point of order would be raised. It is clearly within the
rule that it is retrenchment on its face. It establishes no
obligation on the part of the executive branch for additional
duties. It requires no determination. It does not go beyond the
fiscal year involved, and it simply withholds the salaries for a
specified purpose. . . .
The Chairman: (6) The Chair is prepared to rule.
---------------------------------------------------------------------------
6. James C. Wright, Jr. (Tex.).
---------------------------------------------------------------------------
The gentleman from Pennsylvania makes a point of order that the
amendment offered by the gentleman from Illinois constitutes
legislation on an appropriation bill, as distinguished from an
authorization, and therefore it would be in violation of clause 2,
rule XXI.
The Chair has examined the amendment and the provisions of the
Occupational Safety and Health Act, Public Law 91-596. The
amendment would prohibit the use of funds in the bill for the
payment of the salaries of Federal employees who inspect firms
employing 25 or fewer persons with respect to compliance under that
act.
Clearly, as the gentleman from Pennsylvania acknowledges, and
as all the precedents would attest, the House could refuse to
appropriate any sums whatever for the administration of the act in
question. Or, it could prohibit the appropriation of any funds to
pay the salaries of any inspecting officers under the act. This
particular amendment merely limits the use of funds in the bill for
a certain described category of such employees.
The gentleman from Pennsylvania suggests that this fact would
render the burden upon the executive branch and the administrators
to make precise determinations, and that it would have a
discriminatory effect.
The Chair has examined several precedents which relate to
restrictions on the payment of appropriations for certain salaries
or expenses. On June 6, 1963, Chairman Keogh ruled that to a bill
appropriating funds for the Department of Agriculture, an amendment
providing that--
None of the funds herein shall be used to pay the salary of
any . . . employee who . . . performs duties . . .
incidental to supporting the price of . . . cotton at a level
in excess of 30 cents a pound.
Was a proper limitation, and admissible under the rules of the
House.
On June 6, 1941, Chairman Lanham ruled that an amendment to a
military appropriation bill providing that no funds therein shall
be paid as compensation to any person employed in the manufacture
of defense articles who stops work in excess of 10 days on
[[Page 6439]]
a strike, or who fails to resume work within 3 days after the
Government takes over such a plant, was a valid limitation.
The Chair would also simply call attention to Cannon's volume
7, paragraphs 1663 and 1689, which were cited by Chairman Gibbons
on the agriculture and environmental consumer appropriation bill on
Friday last, when that Chairman overruled a point of order that a
limitation therein on the payment of salaries or funds in the bill
constituted legislation.
The Chair feels that the amendment offered by the gentleman
from Illinois is a valid limitation on the use of funds
appropriated in this bill, and therefore overrules the point of
order.
--Monitoring State Procedures
Sec. 73.10 An amendment denying the use of funds for state plan
monitoring visits by the Occupational Safety and Health
Administration where the workplace has been inspected by a state
agency within six months, but also providing that the limitation
would not preclude the federal official from conducting a
monitoring visit at the time of the state inspection, to
investigate complaints about state procedures, or as part of a
special study program, or to investigate a catastrophe was held not
to require new determinations by federal officials, where existing
law directed state agencies to inform federal officials of all
their activities under state plans.
The proceedings of June 27, 1979,(7) are discussed in
Sec. 66.6, supra.
---------------------------------------------------------------------------
7. 125 Cong. Rec. 17033-35, 96th Cong. 1st Sess.
---------------------------------------------------------------------------
--No Funds to Enforce Certain Regulations
Sec. 73.11 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 determination as to the
category in which the business fell
[[Page 6440]]
with respect to the average injury lost work day rate, and the
determination whether that average was less than the national
average, were easily ascertainable from statistics periodically
published, pursuant to law, by the Bureau of Labor Statistics; the
permissible functions and authorities funded by the amendment were
all authorized in existing law; and the exemption as to certain
farming operations restated a legislative provision already in the
bill, in the paragraph to which the amendment related.
On Aug. 27, 1980,(8) during consideration in the
Committee of the Whole of the Departments of Labor, and Health,
Education, and Welfare appropriation bill (H.R. 7998), a point of order
against the following amendment was overruled:
---------------------------------------------------------------------------
8. 126 Cong. Rec. 23519-21, 96th Cong. 2d Sess.
---------------------------------------------------------------------------
Amendment offered by Mrs. [Beverly B.] Byron (of Maryland): At
page 10, line 10, insert after ``fishing:'' the following new
proviso:
``Provided further, That no funds appropriated under this
paragraph shall be obligated or expended to administer or enforce
any standard, rule, regulation, or order under the Occupational
Safety and Health Act of 1970 with respect to any employer of ten
or fewer employees who is included within a category having an
occupational injury lost work day case rate, at the most precise
Standard Industrial Classification Code for which such data are
published, less than the national average rate as such rates are
most recently published by the Secretary, acting through the Bureau
of Labor Statistics, in accordance with section 24 of that Act (29
U.S.C. Sec. 673), except . . .
``(6) to take any action authorized by such Act with respect to
complaints of discrimination against employees for exercising
rights under such Act: Provided further, That the foregoing proviso
shall not apply to any person who is engaged in a farming operation
which does not maintain a temporary labor camp and employs 10 or
fewer employees''. . . .
Mr. [Joseph M.] Gaydos [of Pennsylvania]: Mr. Chairman, I raise
a point of order against this amendment for the reason that it is
legislation on an appropriations bill. The amendment changes
existing statutory law and, in effect, amends the Occupational
Safety and Health Act of 1970 by exempting a specific class of
employers from the integral provisions of the act. This amendment
goes far beyond reducing or restricting the amount of money in the
appropriation.
The language of this amendment would clearly impose on OSHA
officials new additional duties not otherwise required by existing
law. Look at all the additional determinations to be made by the
Department of Labor. OSHA officials, under this amendment, would be
required to make determinations on the exempt status of firms which
are not required by existing law. . . .
[[Page 6441]]
. . . This amendment serves to change existing law by adding to
the basic statute conditions or requirements governing the scope of
investigations and the assessment of penalties pursuant to these
investigations. In other words, this amendment provides an
affirmative direction to executive officials in situations where
the statute provides these officials with the discretion in the
exercise of their authority. . . .
. . . [A]ccording to Deschler's Procedure, language in a
paragraph of a--
General appropriations bill containing funds for the Federal
Trade Commission for the purpose of collecting line-of-business
data from . . . ``not to exceed 250 firms'' . . . was conceded to
directly interfere with the discretionary authority of the F.T.C.--
a restriction on the scope of the investigation rather than a
limitation on availability of funds. . . .
The amendment before us directly interferes with the
discretionary authority of OSHA by limiting the scope of general
schedule safety inspections to only those inspections or
investigations meeting the substantive requirements of the
amendment. This approach is tantamount to limiting the safety
inspections to a fixed number of firms. . . .
Mrs. Byron: . . . Mr. Chairman, I rise in opposition to the
point of order. This amendment does not impose any additional
duties upon the Secretary of Labor, and therefore is not
legislation in an appropriation bill. . . .
. . . In order to comply with the limitation regarding the size
of the business and the safety records of the industry, no new
duties are required of the Secretary. Section 24 of the
Occupational Safety and Health Act already requires the Secretary
to maintain occupational and safety health statistics. Section
1904-20 of title XXIX of the Code of Federal Regulations
specifically includes the exact statistics that are utilized in the
first part of my amendment. . . .
The Chairman: (9) . . . The Chair is prepared to
rule. . . .
---------------------------------------------------------------------------
9. Don Fuqua (Fla.).
---------------------------------------------------------------------------
. . . In reviewing the amendment, it would prohibit the use of
funds in the bill to enforce standards or rules under the
Occupational Safety and Health Act with respect to certain
employers, except for enumerated functions and activities
authorized under such Act. The amendment applies to employers with
10 or fewer employees whose business falls within a category having
an injury work loss day rate less than the national average as
indicated by statistics published by the Bureau of Labor pursuant
to law. The amendment does not require individual findings of
injury rates in each separate business, but only a determination as
to the category into which the business falls.
The Chair has reviewed the set of statistics that is required
by section 673 of the OSHA law, and finds that the determination as
to what category that the business relates to and the relationship
between the average rate for that category and the average rate for
all business is very easily ascertainable and is now being
undertaken under OSHA regulations. . . .
No new duties or determinations are hereby required, and the
final proviso, while requiring findings as to the tem
[[Page 6442]]
porary status of a farm labor camp, is already in the bill and the
amendment does not add legislation to that permitted to remain in
the bill. . . .
The amendment restricts the use of funds to carry out part of
the authorized activity while allowing but not requiring the agency
to use funds in the bill to carry out other authorized activities.
While an amendment to an 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.
The Chair overrules the point of order.
Reduction in Trade Adjustment Assistance by Amount of Unemployment
Insurance
Sec. 73.12 Where existing law (19 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
was held not to impose new duties upon officials already required
to make those reductions.
The proceedings of June 18, 1980,(10) are discussed
in Sec. 52.36, supra.
---------------------------------------------------------------------------
10. 126 Cong. Rec. 15354-56, 96th Cong. 2d Sess.
---------------------------------------------------------------------------
CHAPTER 26
Unauthorized Appropriations; Legislation on Appropriation Bills
F. PERMISSIBLE LIMITATIONS ON USE OF FUNDS
Sec. 74. Federal Employment
Maximum Age
Sec. 74.1 To an appropriation bill, an amendment to provide that no
part of the funds thereby appropriated shall be used to pay
compensation of persons who allocate positions in the classified
civil service with a requirement of maximum age for such positions
was held to be a proper limitation and in order.
On Mar. 30, 1955,(11) the Committee of the Whole was
considering H.R. 5240, an independent offices appropriation bill. The
following proceedings took place:
---------------------------------------------------------------------------
11. 101 Cong. Rec. 4077, 84th Cong. 1st Sess.
---------------------------------------------------------------------------
Amendment offered by Mr. [Sidney R.] Yates [of Illinois]: On
page 37, after line 25, insert a new section to be designated as
section 108, as follows:
``No part of any appropriation contained in this title shall be
used to pay the compensation of any officers and employees who
allocate positions in the
[[Page 6443]]
classified civil service with a requirement of maximum age for such
positions.''
Mr. [Albert] Thomas [of Texas]: Mr. Chairman, I make a point of
order against the amendment offered by the gentleman from Illinois
[Mr. Yates] on the ground that it is legislation and placing a duty
upon the agency to determine the age of each applicant. . . .
Mr. Yates: Mr. Chairman, this is negative restriction directed
solely to funds sought to be appropriated by this bill. It is not
legislation on an appropriation bill.
The Chairman: (12) The Chair is ready to rule. It
appears to the Chair that this is a proper limitation. Therefore,
the point of order is overruled.
---------------------------------------------------------------------------
12. Albert Rains (Ala.).
---------------------------------------------------------------------------
Limiting Number of Employees in Executive Office of President
Sec. 74.2 An amendment to a general appropriation bill restricting the
total amount of funds used to pay certain salaries and for certain
positions constitutes a valid limitation if it is confined to
appropriations made by that bill and does not affect funds
appropriated in other acts.
On June 22, 1972,(13) During consideration in the
Committee of the Whole of a general appropriation bill (H.R. 15585), a
point of order was raised against the following amendment:
---------------------------------------------------------------------------
13. 118 Cong. Rec. 22098, 22099, 92d Cong. 2d Sess.
---------------------------------------------------------------------------
Mr. [Morris K.] Udall [of Arizona]: Mr. Chairman, I offer an
amendment.
The Clerk read as follows:
Amendment offered by Mr. Udall: On page 38, line 18, add a
new section 611, as follows:
Sec. 611. No part of the appropriation made by this Act
shall be expended for the compensation of more than 1647
employees in the Executive Office of the President, including
not more than 50 employees of any Department or agency detailed
to serve in the Executive Offices;
Nor shall the total amount appropriated to the Executive
Office of the President for personnel compensation exceed
$29,737,760;
Nor shall any part of the appropriations be expended for
the compensation of more than 95 ungraded employees in the
Executive Office of the President, whose individual salaries
are in excess of the maximum rates of pay established at the
pay level of GS-10 of the General Schedule (5 USC 5332);
Nor shall any part of the appropriation be expended for the
compensation of more than 549 employees in the Executive Office
of the President whose annual rates of pay are more than the
minimum rate in effect for GS-13 of the General Schedule (5 USC
5332) but less than the annual rate of pay for Level II of the
Executive Schedule (5 USC 5313);
Except that no part of this section shall apply to the
compensation of any employees of the White House Office, or the
compensation of the President. . . .
Mr. [Howard W.] Robison of New York: Mr. Chairman, I make a
point of order against the amendment offered by the gentleman from
Arizona.
[[Page 6444]]
The Chairman: (14) The Chair will hear the
gentleman.
---------------------------------------------------------------------------
14. John S. Monagan (Conn.).
---------------------------------------------------------------------------
Mr. Robison of New York: Mr. Chairman, it is my understanding
that in order to be qualified under the rules and the precedents of
the House, a limitation on an appropriation bill must limit the
funds appropriated under that act and that act only.
I think the chairman of the subcommittee has already pointed
out to the Chair that there are other Executive Office agencies
under the heading of the Executive Office of the President to which
the amendment seeks to add a limitation. I would say to the Chair
that those agencies are, among others, the Council on Environmental
Quality, the National Aeronautics and Space Council, the National
Commission on Productivity, the National Council on Marine
Resources and Engineering, the Office of Consumer Affairs, the
Office of Science and Technology, the Special Representative for
Trade Negotiations, and finally, Mr. Chairman, the Office of
Economic Opportunity, for none of which agencies is money provided
under this appropriation bill.
Mr. Udall: Mr. Chairman, I wish to be heard on a point of
order; in the first place, my esteemed friend from New York (Mr.
Robison) did not reserve a point of order. He is either making the
same one my friend from Oklahoma made, or he is making a different
one, and the gentleman from Oklahoma's point of order has been
ruled upon.
He has no right to make a point of order, since he did not
reserve one, and debate had intervened.
On the second ground, I think the Chairman has already covered
in his earlier ruling the precise point the gentleman has raised.
Mr. [Thomas J.] Steed [of Oklahoma]: Mr. Chairman, may I be
heard further?
The Chairman: Yes, the gentleman is recognized.
Mr. Steed: Mr. Chairman, if the Chair will direct his attention
to the first paragraph, he will see a specific reference to the
number 1,647 employees in the Executive Office of the President. It
does not say, in this act. It says, in the entire office. It says:
Nor shall the total amount appropriated--
Not in this act, but in all acts--
To the Executive Office of the President for personnel
compensation exceed $29,737,760.
Mr. Chairman, there is no way from the record here or any other
available record that we can show where the 1,647 limitation does
increase or decrease the people available in the Executive Office
of the President.
In the rules of the House it is very specific under the Holman
rule, that unless a definite reduction can be shown this language
would be legislation and would not be appropriate to this bill.
The Chairman: The point made by the gentleman from New York is
essentially that already made by the gentleman from Oklahoma. This
bill does contain appropriations for the Executive Office of the
President and the Chair reads the amendment as being a limitation
upon those appropriations. And, as pointed out before, the specific
provision is that no part of the appropriations made by this act
shall be ex
[[Page 6445]]
pended for certain purposes--detailed in the first four paragraphs
of the amendment. The Chair is constrained, therefore, to overrule
the point of order.
Hatch Act Application
Sec. 74.3 To an appropriation bill an amendment providing that no part
of any appropriation in the bill be used for compensation of any
officer or employee of a designated bureau who for the purposes of
the Hatch Act, ``shall not be included within the construction of
the term `officer' or `employee' '' was held in order as a
limitation where the determinations of employment status were
already required by law.
On Mar. 4, 1954,(15) the Committee of the Whole was
considering H.R. 8067, a State, Justice, and Commerce Departments
appropriation bill. The Clerk read as follows, and proceedings ensued
as indicated below:
---------------------------------------------------------------------------
15. 100 Cong. Rec. 2697, 2698, 83d Cong. 2d Sess.
---------------------------------------------------------------------------
Amendment offered by Mr. [Louis C.] Rabaut [of Michigan]: At
page 52, after line 19, add the following new section:
``Sec. 604. No part of any appropriation contained in this act
shall be used to pay the salary or wages of any officer or employee
of the Bureau of Security and Consular Affairs of the Department of
State who, for the purposes of the act of August 2, 1939, as
amended (5 U.S.C. 118i), shall not be included within the
construction of the term `officer' or `employee'.''
Mr. [John] Taber [of New York]: Mr. Chairman, I make the point
of order against the amendment that it is legislation on an
appropriation bill; that it changes existing law and requires new
and additional duties.
The Chairman: (16) Does the gentleman from Michigan
desire to be heard?
---------------------------------------------------------------------------
16. Leroy Johnson (Calif.).
---------------------------------------------------------------------------
Mr. Rabaut: Yes, Mr. Chairman. I cite volume VII, Cannon's
Precedents, section 1663 and section 1670:
1. Denial of use of an appropriation for payment of
salaries of employees of the Department of Agriculture who
forecast the price of agricultural products was construed as a
proper limitation and in order on an appropriation bill.
The Chairman at that time, March 2, 1928, Allen T.
Treadway, of Massachusetts, relied on prior decisions of
Chairmen of the Committee of the Whole, Mr. Graham, of
Illinois, in 1924, and Mr. Longworth, of Ohio, in 1923, and
held such a limitation proper and not subject to a point of
order.
2. An amendment forbidding payment of salary authorized by
law from any part of an appropriation to a designated
individual was held to be a limitation and in order on an
appropriation bill. . . .
Mr. Taber: . . . This amendment, Mr. Chairman, refers to the
so-called Hatch Act, section 118i, of title V of the Code. It reads
as follows:
For the purposes of this section the term ``officer'' or
``employee'' shall
[[Page 6446]]
not be construed to include (1) the President and Vice
President of the United States; (2) persons whose compensation
is paid from the appropriation for the Office of the President
(3) heads and assistant heads of executive departments; (4)
officers who are appointed by the President, by and with the
advice and consent of the Senate, and who determine policies to
be pursued by the United States in its relations with foreign
powers or in the nationwide administration of Federal laws. The
provisions of the second sentence of this subsection shall not
apply to the employees of the Alaska Railroad.
This provision in effect brings about the prohibition of
payments to these employees who are not determined to be officers
or employees within the provisions of this paragraph of section
118. It requires a determination on the part of some officer before
the thing can be effective. For that reason, it requires additional
duties to be performed by some officer before it can be effective.
Therefore, it is subject to the rule that it requires additional
duties, and it is an attempt on the part of the amendment to change
and enlarge the provisions of that section. . . .
Mr. Rabaut: Mr. Chairman, in House Report No. 1365, 82d
Congress, relative to H.R. 5678, the McCarran-Walter bill, it is
stated on page 36:
The Bureau of Security and Consular Affairs, section 104,
creates a new organizational setup within the Department of
State to administer the issuance of passports and visas. There
will be a responsible authority in the Department of State of
rank and power corresponding to the Commissioner of Immigration
and Naturalization and to the Director of the Federal Bureau of
Investigation--
Mr. J. Edgar Hoover--
and the Central Intelligence Agency--
Mr. Dulles--
All of whom are to collaborate in the interests of national
security.
Is it the contention of anybody here that we would want, for
instance, Mr. J. Edgar Hoover going around the country making
political speeches? . . .
The Chairman: The Chair is prepared to rule. . . .
It appears to the Chair that the contention of those who make
the point of order is answered by this provision in Hinds'
Precedents, volume IV, section 3954:
A provision that no part of an appropriation for pay of
retired Army officers should go to one receiving pay for
services as a civil employee was held to be a limitation.
Likewise we have a similar expression in Cannon's Precedents,
volume VII, section 1651, which contains the provision that no part
of an appropriation shall be allotted to a beneficiary failing to
comply with certain requirements. That provision was held in order
as a proper limitation on an appropriation bill. With those two
precedents the Chair is constrained to overrule the point of order,
and the Chair so rules.
The point of order is overruled.
Past Employment of Heads of Departments
Sec. 74.4 An amendment providing that no part of an appropriation shall
be paid to
[[Page 6447]]
the head of any executive department who, within a specified period
was a partner in a firm which derived any income from representing
a foreign government, was held to be a proper limitation on an
appropriation bill and in order.
On July 26, 1951,(17) the Committee of the Whole was
considering H.R. 4740, a State, Justice, Commerce Departments and
Judiciary appropriation bill. The Clerk read as follows:
---------------------------------------------------------------------------
17. 97 Cong. Rec. 8963, 8965, 82d Cong. 1st Sess.
---------------------------------------------------------------------------
Amendment offered by Mr. [John] Phillips [of California]: On
page 58, following line 14, add a new section to be numbered
section 602:
``None of the money appropriated in this act shall be paid to
the head of any executive department who, within a period of 5
years preceding his appointment, was a partner in, or a member of,
a professional firm which derived any part of its income from
representing, or acting for, a foreign government, or who, acting
as an individual, derived income from such representation.''
Mr. John J. Rooney, of New York, made a point of order on which
debate occurred as follows:
Mr. [John W.] McCormack [of Massachusetts]: Mr. Chairman, the
proposed amendment starts out under the guise of a limitation, ``No
money in this appropriation shall be paid,'' and so forth. A
limitation, as I understand it, cannot impose any more duties upon
an official, any affirmative duties, any additional duties, that do
not presently exist by law.
Let us see what additional duties this amendment imposes upon
someone. It does not state here, but someone has to carry out the
provisions of this amendment if it were held to be in order and it
was adopted. ``Who in a period of 5 years preceding his
appointment.'' Who is going to determine the 5-year period?
Somebody has got to say. That is an additional duty and
responsibility resting upon somebody. This is legislation. ``Was a
partner in.'' Somebody has to pass on that. That imposes additional
duties upon somebody. ``Or a member of a professional firm which
derived any part of its income from representing, or acting for a
foreign government.'' That imposes additional duties upon some one,
and that duty is not imposed upon anybody by law now. There is no
organic law now relating to it. ``Or who, acting as an individual,
derived income from such representation.'' There are many firms
where men may be partners in one thing and in one case, and not
partners in another. Somebody has to determine all of these
factors.
Mr. Chairman, under the guise of a limitation I respectfully
submit that the proposed amendment constitutes pure legislation. .
. .
Mr. Phillips: . . . I am sure that all the information
necessary was necessarily obtained before the appointment was made.
It all appears, I will say to the gentleman from Massachusetts, in
the Senate hearings. . . .
Mr. [Clare E.] Hoffman of Michigan: . . . If [Mr. McCormack's]
argu
[[Page 6448]]
ment is logically followed through it would not be possible for the
Congress to make any appropriation, because every appropriation
that we make requires that someone take some action to determine
that a condition or situation exists before the money appropriated
can be had or used. For example, if we make an appropriation for
the armed services, someone has to certify the individuals who are
entitled to receive it. Someone must take action to create the
obligation which justifies the expenditure. What I say with
reference to this appropriation is true with reference to every
appropriation bill. Every appropriation requires something be done
before the money becomes available, an action which is incidental
rather than legislative. . . .
The Chairman: (18) . . . The Chair is prepared to
rule.
---------------------------------------------------------------------------
18. Jere Cooper (Tenn.).
---------------------------------------------------------------------------
The gentleman from California has offered an amendment which
has been reported by the Clerk. The gentleman from New York has
made a point of order against the amendment on the ground that it
is not a proper limitation on an appropriation bill.
The Chair has examined the amendment with some degree of care.
. . .
It should be clear that almost any limitation must necessarily
require some action on the part of somebody. One of the classic
illustrations given on many occasions by the distinguished
parliamentarian to whom the Chair made reference a few moments ago,
Hon. James R. Mann, of Illinois, was that if a provision states
that ``no part of this appropriation shall be paid to a red-headed
man,'' somebody will have to find that red-headed man and determine
whether his hair is red; therefore, it would appear that in any
instance where a limitation is sought to be imposed there must be
some activity contemplated or some effort exerted by someone to
carry out the provisions of the limitation.
The Chair would invite attention to section 1593 of Cannon's
Precedents. . . .
The Chair is of the opinion that that decision is applicable to
the pending question raised by the point of order made by the
gentleman from New York. It would appear that the over-all and
controlling element of the pending amendment is a limitation on an
appropriation bill. It is entirely negative in character, and does
not affirmatively impose any additional duties upon anybody.
Therefore the Chair overrules the point of order.
Parliamentarian's Note: As a general rule, it is in order in a
general appropriation bill to describe the qualifications of the
recipients of funds provided therein and to deny the availability of
those funds to persons or purposes not meeting those criteria, so long
as the restriction is confined to the fiscal year covered by the bill.
See Sec. 54, supra, discussing qualifications of recipients of funds.
Of course, a determination must be made by the administrator of the
funds as to whether prospective recipients have the qualifications
described as a condition to receiving funds, and in some instances
[[Page 6449]]
that determination may entail the performance of new and substantial
duties on the part of the administrator. In such cases, as has been
seen (Sec. 52, supra), the express or implied requirement that such
duties be performed would amount to legislation prohibited by Rule XXI.
The question of whether the new duties are in fact of such a
substantial nature is sometimes a difficult one, especially where those
duties are merely implicit in the proposed limitation. The application
of any limitation on an appropriation bill places some minimal extra
duties on federal officials, who, if nothing else, must determine
whether a particular use of funds falls within that prohibited by the
limitation. But when an amendment, while curtailing certain uses of
funds carried in the bill, explicitly places new duties on officers of
the government or implicitly requires them to make investigations,
compile evidence, or make judgments and determinations not otherwise
required of them by law, then it assumes the character of legislation
and is subject to a point of order. See 115 Cong. Rec. 21653, 21675,
91st Cong. 1st Sess., July 31, 1969 (discussed in Sec. 61.6, supra),
ruling that the words ``in order to overcome racial imbalance'' in an
amendment to an appropriation bill would impose additional duties on
school officials. If language such as that involved in the 1951 ruling
above were to be ruled on today, the issue of whether it constitutes
prohibited ``legislation'' might depend on whether the applicability of
the provision could be determined on the basis of information that was
already required to be disclosed under existing law, or whether the
administrator of the funds in question would have to undertake new
duties of an investigative nature.
Abortion; Prohibition Against Federal Funds for Insurance Coverage
Sec. 74.5 An amendment to a general appropriation bill denying the use
of funds therein to pay for an abortion, or administrative expenses
in connection with any federal employees health benefits plan which
provides any benefits or coverage for abortions after the last day
of contracts currently in force, was held not to constitute
legislation, since the amendment did not directly interfere with
executive discretion (in contracting to establish such plans); it
is permissible by limitation to negatively deny
[[Page 6450]]
the availability of funds although discretionary authority may be
indirectly curtailed and contracts may be left unsatisfied.
On Aug. 20, 1980,(19) during consideration of the
Department of Treasury and Postal Service appropriation bill (H.R.
7593), an amendment was ruled in order as follows:
---------------------------------------------------------------------------
19. 126 Cong. Rec. 22171, 22172, 96th Cong. 2d Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
Amendment offered by Mr. [John M.] Ashbrook [of Ohio]: Page
43, after line 5, insert the following:
``Sec. 614. No funds appropriated by this Act shall be
available to pay for an abortion or the administrative expenses
in connection with any health plan under the Federal Employees
Health Benefit Program which provides any benefits or coverage
for abortions under such negotiated plans after the last day of
the contracts currently in force.''. . .
Mrs. [Patricia] Schroeder [of Colorado]: Mr. Chairman, I make a
point of order that this amendment constitutes legislation in an
appropriation bill. This limitation changes existing law, and
imposes new duties on administrative officials.
This amendment changes current law in a variety of ways.
Section 8904 of title 5, United States Code, lists the authorized
content of a Federal employee health plan. This amendment, in
effect, amends this section to add an exclusion. By doing so, the
amendment changes the benefits provided to Federal employees.
Directly on point is the precedent found in section 9.8 of chapter
26 of Deschler's Procedure, holding that language in a general
appropriation bill changing the allowances and benefits due
overseas employees of the Foreign Claims Settlement Commission was
held to be legislation and not in order (106 Congressional Record
17899, 86th Congress, 2d session, August 26, 1960).
There are other ways in which this amendment changes the basic
law. Throughout the development of Federal labor-relations law
culminating in passage of the Civil Service Reform Act of 1978, a
careful balance was worked out on labor organization rights.
Congress did not go along with providing an agency shop in which
dues would be required from bargaining unit members, but did allow
labor organizations to offer health plans exclusively to their
members as a membership and fund-raising device. This amendment
would strip one of the attractive features out of these plans and
would thereby deny labor organizations one of the rights which they
fought hard for during civil service reform. . . .
This amendment imposes considerable new duties on the Office of
Personnel Management. The general rule on this is well stated in
section 11.3 of chapter 26 of Deschler's Procedure:
It is not in order, in an appropriation bill, to impose
additional duties on an executive officer or to make the
appropriation contingent upon the performance of such duties.
Currently, virtually all the health plan contracts for 1981 are
written, signed and sealed. Most provide abortion health services
or indemnification
[[Page 6451]]
for abortions. The adoption of this amendment would force the
renegotiation of these contracts in the very limited time prior to
the beginning of the open session in October. The administrative
burdens are so high, in fact, that I am not certain they can be
discharged in time. . . .
Another side of this question of administrative duties has to
do with changing the authority of a Federal official. . . .
. . . [S]ections 20.6 and 13.3 of chapter 26 of Deschler's
Procedure stand for the proposition that changing the authority of
a Federal official renders an amendment out of order. Here, the
plenary authority of the Director of the Office of Personnel
Management to negotiate health plans is limited by a requirement
that he negotiate plans having a certain type of coverage. By tying
the Director's hands in this way, the amendment is seriously
changing the contracting authority of an executive official. . . .
Mr. Ashbrook: Mr. Chairman, if we read the amendment, the
amendment very clearly is a limitation on expenditures, it is a
limitation consistent with previous limitations that have been
upheld by this Chair.
As I say, it does not require any affirmative actions.
My colleague, the gentlewoman from Colorado, refers to
abortions that are in current health benefits programs. I know of
no federally protected right that anyone would have for an abortion
that comes under a Federal employees' health benefit program.
The truth of the matter is that since June 30, the Supreme
Court upheld the right of this Congress to withhold funds. This has
been the stated purpose. The Hyde amendment originally withheld
funds for activities that up to that time had been legal. There is
nothing new about that. . . .
Mr. [Robert E.] Bauman [of Maryland]: . . . If the Chair will
examine the specific limitations that are embodied in the language,
he will find that it would require nothing more than incidental
determinations which have been held in the past to be perfectly
adequate and within the rule allowing limitations on expenditures.
I would cite to the Chair chapter 25, section 10.4, Deschler's
Procedure, where it was ruled in the 86th Congress that:
Where the manifest intent of a proposed amendment is to
impose a limitation on the use of funds appropriated in the
bill, the fact that the administration of the limitation will
impose certain incidental but additional burdens on executive
officers does not destroy the character of the limitation.
In this case, the amendment forbids the use of Federal funds to
pay for an abortion or the administrative expenses in connection
with any health plan under the Federal employee's health benefit
program providing abortions. Those health plans at the present time
are well known, are available, their contents are fully known, and
no new determinations must be made. . . .
The Chairman: (20) The Chair is prepared to rule on
the point of order.
---------------------------------------------------------------------------
20. Richardson Preyer (N.C.).
---------------------------------------------------------------------------
The gentlewoman from Colorado makes the point of order that the
amendment offered by the gentleman
[[Page 6452]]
from Ohio (Mr. Ashbrook), is legislation on an appropriation bill
in violation of clause 2, rule XXI. The gentlewoman cites statutory
provisions relating to the discretionary authority conferred upon
the Office of Personnel Management in contracting with health
insurance carriers to establish health benefit plans for Federal
employees, and also to administer the health benefits fund. The
gentlewoman then cites precedents to the effect that it is not in
order on a general appropriation bill to directly limit executive
discretionary authority, to directly change entitlement benefits or
to directly change contracts entered into pursuant to law, or
otherwise impose new duties not required by existing law by
requiring new investigations or judgments to be made. All of the
precedents examined by the Chair standing for the proposition
asserted by the gentlewoman from Colorado involve situations where
the Chair was able to discern from the language of the amendment
itself, rather than from resulting circumstances which might derive
from the enactment of the amendment, that a change in law would
necessarily result from the amendment.
On the other hand, the great weight of precedent in the House,
not only with respect to the denial of availability of funds in a
general appropriation bill for abortions but also for any other
purpose otherwise authorized by law, indicates that it is
permissible as a limitation to negatively deny the availability of
funds although discretionary authority may be indirectly curtailed
or although contracts may remain unsatisfied thereby. And, while
new determinations, which the gentlewoman suggests would
necessarily have to be made in order to properly administer the
funded program within the terms of the amendment cannot be
foreclosed as possibilities, the Chair sees no language in the
amendment itself which would require those new findings to be made.
Such was the essence of the decision of the Chair on July 17, 1979,
where to the D.C. appropriation bill a substitute amendment
providing that none of the funds in the bill provided by the
Federal payment to the District shall be used to perform abortions
was held not to constitute legislation.
The Chair rules therefore that the amendment is in order, and
the point of order is overruled.
Striking Employees Not To Be Rehired
Sec. 74.6 Where existing law (5 U.S.C. Sec. Sec. 7311, 3333; 18 USC
Sec. 1918) provided civil and criminal sanctions against strikes by
federal employees, and where a federal court order had enjoined a
particular strike by a union representing a group of federal
employees, it was held in order as a limitation on a general
appropriation bill to deny funds for the rehiring of those
employees engaged in a strike, where federal officials
administering those funds would know which of the employees in
question were ``on strike''.
[[Page 6453]]
On Sept. 10, 1981,(1) an amendment to a general
appropriation bill prohibiting the use of funds therein to rehire
certain federal employees engaged in a strike in violation of federal
law (5 U.S.C. Sec. 7311; 18 U.S.C. Sec. 1918) was held in order as a
limitation not requiring new determinations on the part of federal
officials administering those funds, since existing law (5 USC
Sec. 3333) requiring an affidavit undertaking not to strike to be
signed by federal employees, and a court order enjoining the strike in
question, already imposed an obligation on the administering officials
to enforce the law. The proceedings were as indicated below:
---------------------------------------------------------------------------
1. 127 Cong. Rec. 20109, 20110, 97th Cong. 1st Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
Amendment offered by Mr. [Robert S.] Walker [of
Pennsylvania]: On page 38, after line 15, insert the following
new section:
``Sec. 322. None of the funds provided in this Act shall be
used to rehire Federal air traffic controllers engaged in a
strike in violation of Federal law.'' . . .
Mr. [Lawrence] Coughlin [of Pennsylvania]: . . . Mr. Chairman,
I make a point of order that the amendment offered by the gentleman
from Pennsylvania is legislation on an appropriation bill, contrary
to clause 2 of rule XXI.
I make the further point of order that it places additional
duties on officers of the Government or implicitly requires them to
make investigations, compile data or otherwise make determinations
not otherwise required by law.
Mr. Chairman, chapter 26 of the Deschler's procedure, section
11.2 states:
Where an amendment, in the guise of a limitation, imposes
additional determinations and duties on an executive, it may be
ruled out as legislation on a general appropriation bill. . . .
Mr. [Dennis E.] Eckart [of Ohio]: . . . I would like to draw to
the Chair's attention that, in fact, other duties may be incumbent
as a result of this point of order in the amendment raised by
virtue of the fact that it would require a self-standing judicial
determination to be made if, in fact, the strike was a violation of
Federal laws, separate judicial determination that has not been
made. Therefore, there is a contingency contained in this amendment
which I believe would place it within the grounds of the point of
order. . . .
The Chairman: (2) [T]he determination required of
the Federal Government by the amendment involves a set of facts
that is within the knowledge of the Federal Government in that the
Federal Government is under an obligation to know which of its
employees have been engaged in a strike in violation of Federal
laws.
---------------------------------------------------------------------------
2. Richard A. Gephardt (Mo.).
---------------------------------------------------------------------------
The Chair would cite the precedent in Deschler's procedure,
chapter 5, section 12.7, which states:
While an amendment under the guise of a limitation may not
require
[[Page 6454]]
affirmative action or additional duties on the part of federal
officials, it is in order on a general appropriation bill to
deny funds to a nonfederal recipient of a federal grant program
unless he is in compliance with a provision of federal law; 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 non-federal grantee.
The Chair would also cite the related precedents appearing in
Cannon's precedents, volume 7, sections 1661 and 1662.
For these reasons the Chair overrules the point of order.
CHAPTER 26
Unauthorized Appropriations; Legislation on Appropriation Bills
F. PERMISSIBLE LIMITATIONS ON USE OF FUNDS
Sec. 75. Foreign Relations
Nonmarket Economy Countries
Sec. 75.1 To a general appropriation bill containing funds for foreign
assistance, an amendment prohibiting the availability of funds
therein for nonmarket economy countries other than those eligible
for certain preferential tariff treatment under existing law was
held a proper limitation on the use of funds in the bill.
On Dec. 11, 1973,(3) during consideration in the
Committee of the Whole of the foreign assistance appropriation bill
(H.R. 11771), a point of order was raised against the following
amendment:
---------------------------------------------------------------------------
3. 119 Cong. Rec. 40871, 93d Cong. 1st Sess.
---------------------------------------------------------------------------
Mr. [Richard H.] Ichord [of Missouri]: Mr. Chairman, I offer an
amendment.
The Clerk read as follows:
Amendment offered by Mr. Ichord: Page 18, line 10, strike
out the period and insert in lieu thereof the following: ``;
except that no funds shall be obligated or expended under this
paragraph, directly or indirectly, for the use or benefit of
any nonmarket economy country (other than any such country
whose products are eligible for column 1 tariff treatment on
the date of the enactment of this Act).''
Mr. [Garner E.] Shriver [of Kansas]: Mr. Chairman, I raise a
point of order on this amendment.
This amendment, like the other one, places additional
responsibilities and additional duties. It is legislation on an
appropriation bill; it requires considerable research and work in
order to determine the nonmarket economy country. And then that is
put just in parentheses in the bill. . . .
The Chairman: (4) The Chair is prepared to rule.
---------------------------------------------------------------------------
4. Charles M. Price (Ill.).
---------------------------------------------------------------------------
The language, as contained in this amendment, appears to the
Chair to be strictly a limitation on the manner in which the funds
are to be expended. Almost any limitation requires some
determination in order to establish the fact of whether or not the
limitation would apply.
So the Chair is constrained to overrule the point of order.
Executive Agreements
Sec. 75.2 To a bill making appropriations for the mutual se
[[Page 6455]]
curity program, an amendment providing that no funds in the bill
shall be used to implement certain executive agreements made under
authority of the Atomic Energy Act of 1954 was held to be a
limitation restricting the availability of funds and in order.
On July 28, 1959,(5) the Committee of the Whole was
considering H.R. 8385. The Clerk read as follows:
---------------------------------------------------------------------------
5. 105 Cong. Rec. 14524, 14525, 86th Cong. 1st Sess.
---------------------------------------------------------------------------
Amendment offered by Mr. [Charles E.] Bennett of Florida: On
page 5, immediately below line 25, insert the following:
``Sec. 103. No part of any appropriation contained in this Act
shall be used to carry out any agreement for cooperation heretofore
or hereafter entered into which is required to be submitted to the
Joint Committee on Atomic Energy under section 123(d) of the Atomic
Energy Act of 1954, as amended.''
And renumber the following sections accordingly. . . .
Mr. [John] Taber [of New York]: Mr. Chairman, I make the point
of order that this is legislation on an appropriation bill. It is
not a limitation because it provides that it shall affect any
agreement for cooperation heretofore or hereafter entered into
which is required to be submitted to the Joint Committee on Atomic
Energy under section 123 of the Atomic Energy Act of 1954 as
amended, and it imposes additional duties upon the administrators
of that act.
Mr. Bennett of Florida: Mr. Chairman, does not the point of
order come too late? The gentleman from New York did not reserve a
point of order.
The Chairman: (6) It did not.
---------------------------------------------------------------------------
6. Wilbur D. Mills (Ark.).
---------------------------------------------------------------------------
. . . The Chair has had an opportunity to examine the
amendment.
The Chair is of the opinion that the amendment is a simple
limitation on an appropriation bill and points out the specific
purposes for which funds in this bill cannot be used.
Therefore the Chair overrules the point of order.
Foreign Economic Assistance; Automobile Industry Abroad
Sec. 75.3 Where an amendment to a mutual security appropriation
prohibited the use of funds to establish textile processing plants
in any foreign country, an amendment thereto extending the
prohibition to ``automobile manufacturing plants or any other
manufacturing industry now established in the United States'' was
held to be a limitation restricting the availability of funds.
On July 2, 1958,(7) The following proceedings took
place:
---------------------------------------------------------------------------
7. 104 Cong. Rec. 12967-73, 85th Cong. 2d Sess.
---------------------------------------------------------------------------
[[Page 6456]]
Amendment offered by Mr. [Gordon] Canfield [of New Jersey]: On
page 7, after line 2, insert a new section as follows:
Sec. 106. None of the funds provided in this act shall be used
to establish textile processing plants in any foreign country.'' .
. .
Mr. [Robert P.] Griffin [of Michigan]: Mr. Chairman, I offer an
amendment to the amendment.
The Clerk read as follows:
Amendment offered by Mr. Griffin to the amendment offered
by Mr. Canfield: After the words ``textile processing plants''
insert the words ``automobile manufacturing plants or any other
manufacturing industry now established in the United States.''
Mr. [Hale] Boggs [of Louisiana]: Mr. Chairman, I make a point
of order against the amendment on the ground that it is legislation
on an appropriation bill.
The Chairman: (8) This is a limitation on an
appropriation bill and the point of order is overruled.
---------------------------------------------------------------------------
8. Wilbur D. Mills (Ark.).
---------------------------------------------------------------------------
Parliamentarian's Note: The amendment was not germane to the
amendment to which offered, but this point of order was not raised.
Payments on Contracts to Former Government Employees
Sec. 75.4 Language in a proposed new section of an appropriation bill
stating that none of the funds in title I of the bill, providing
for the International Cooperation Administration, shall be used to
enter into contracts with any concern which compensates employees
or former employees of such administration, was held to be a
limitation and in order.
On June 17, 1960,(9) The Committee of the Whole was
considering H.R. 12619, a mutual security program appropriation bill.
The Clerk read as follows, and proceedings ensued as indicated below:
---------------------------------------------------------------------------
9. 106 Cong. Rec. 13143, 13144, 86th Cong. 2d Sess.
---------------------------------------------------------------------------
Amendment offered by Mr. [Alfred E.] Santangelo [of New York]:
On page 9, after line 11, add new section as follows:
``Sec. 114. None of the funds contained in title I of this Act
may be used to enter into any contract with any person,
organization, company, or concern or any of its affiliates who has
offered or who offers to provide compensation to an employee of the
International Cooperation Administration or who provides
compensation to any former employee of the International
Cooperation Administration whose annual salary exceeds $5,000 and
who has left employment with the International Cooperation
Administration within two years of the date of employment with said
person, or organization, company, or concern, or any of its
affiliates.''
[[Page 6457]]
Mr. [J. Vaughan] Gary [of Virginia]: Mr. Chairman, I make the
point of order against the amendment on the ground that it is
legislation on an appropriation bill. . . .
Mr. Santangelo: Mr. Chairman, this amendment was offered to a
bill last year. Similar language was objected to in a different
type of bill, and the Chair, at the time the gentleman from New
York [Mr. Keogh], overruled the point of order. This is a
limitation upon expenditures. This in no wise is an authorization
to do anything except a limitation on funds. I say it does not
violate the parliamentary rules. . . .
The Chairman: (10) The Chair has had an opportunity
to examine the language of the amendment offered by the gentleman
from New York [Mr. Santangelo] and has had an opportunity also to
review what transpired in connection with a similar matter when it
was offered as an amendment to an appropriation bill last year.
This amendment seems to be similar to the amendment offered last
year except for the $5,000 limitation in this amendment. Last year
the present occupant of the Chair, when such an amendment was
offered, pointed out that the amendment was in order at that time
and overruled the point of order made then.
---------------------------------------------------------------------------
10. Wilbur D. Mills (Ark.).
---------------------------------------------------------------------------
So, the Chair overrules the point of order made by the
gentleman from Virginia.
The ruling here was based on a similar ruling on July 28, 1959. In
the 1959 instance,(11) language in the bill (12)
stated:
---------------------------------------------------------------------------
11. See 105 Cong. Rec. 14529, 86th Cong. 1st Sess.
12. H.R. 8385, appropriations for the mutual security program.
---------------------------------------------------------------------------
Sec. 113. None of the funds in this title may be used to enter
into a contract with any person, organization, company, or concern
or any of its affiliates, who has offered or who offers to provide
compensation to an employee of the International Cooperation
Administration or who provides compensation to any former employee
of the International Cooperation Administration who has left
employment with International Cooperation Administration within two
years from the date of employment with said person, organization,
company, or concern or any of its affiliates.
A point of order was made against the language:
Mr. [Thomas E.] Morgan [of Pennsylvania]: Mr. Chairman, I make
a point of order against section 113, on page 8, extending from
line 7 down to and including line 17.
Mr. Chairman, I make the point of order that section 113
incorporates a legislative provision in an appropriation bill. It
does not retrench expenditure, but actually constitutes a new penal
provision which is so broad that it could penalize innocent persons
and even make it impossible for a concern to hire a janitor who had
been employed by the ICA.
Mr. Chairman, I am fully in sympathy with the purpose of the
Appropriations Committee in writing this section, but section 512
of the existing Mutual Security Act already contains stringent
provisions against fraudulent or other improper practices by ICA
employees. The proper approach to this problem is further study by
the legislative committees concerned and any
[[Page 6458]]
modification that may be found desirable in existing law.
Mr. Chairman, I believe that in spite of the beginning phrase
of this section it is clearly legislation in an appropriation bill
and properly subject to a point of order, because it actually
legislates penal provisions which may go far beyond the intent of
the Appropriations Committee itself. I recommend a study of the
existing penal provisions, section 512, and I wish to renew my
point of order. . . .
Mr. Santangelo: Mr. Chairman, I rise in opposition to the point
of order. The language in the bill which is the subject of the
point of order is an amendment which I offered in the full
committee and which the full committee accepted.
Mr. Chairman, on June 3, I offered a similar amendment to the
defense appropriation bill. The language of that amendment, which
appears on page 9741 of the Congressional Record, is almost exactly
the same as the language of the amendment before you now.
The amendment submitted on the defense bill attempted to
prevent organizations which do business with the Pentagon from
creating the possibility of undue influence and favoritism by
employing retired military officers. The amendment before you today
attempts to prevent organizations who get large contracts under the
foreign aid program from influencing the awarding of such contracts
by attempting to employ ICA employees or by putting them on their
payrolls within 2 years of their separation from that agency.
A point of order was also made against the limitation offered
previously. At that time the Chair stated as follows, and I quote
from page 9742 of the Congressional Record:
It is obvious that the intent of this amendment is to
impose a limitation on the expenditure of the funds here
appropriated, and while the point might be made that imposing
limitations will impose additional burdens, it is nevertheless
the opinion of the Chair clearly a limitation on expenditures,
and therefore the Chair overrules the point of order.
Mr. Chairman, I submit that the ruling just quoted is equally
applicable here. It is the intent of this amendment to impose a
limitation on the expenditure of funds here appropriated. The
wording of the two amendments is almost identical, except for the
agencies and people involved. . . .
Mr. [James G.] Fulton [of Pennsylvania]: Mr. Chairman, the
point should be made on this particular amendment that it does not
refer to any time. So that the acts complained of, and which come
under the purview of this amendment, can already have happened.
That would be legislating on the effect of acts that have happened
prior to this date. This is legislation in an appropriation bill.
If the amendment had read, ``after the passage of this act,''--the
amendment would then apply to future acts only--this amendment is
too broad because it refers to previous acts which have occurred as
well as acts which can occur after the passage of this act.
The Chairman [Wilbur D. Mills, of Arkansas]: The Chair is ready
to rule. The gentleman from Pennsylvania [Mr. Morgan] makes a point
of order to the language in the bill on page 8, line 7 through line
17, on the ground that the
[[Page 6459]]
language is legislation in an appropriation bill. The Chair has had
an opportunity to examine the language. The Chair is of the opinion
that the language does constitute a valid limitation on an
appropriation bill. The language does refer to the funds in this
particular appropriation. In addition, the Chair is appreciative of
the precedent called to the attention of the Chair by the gentleman
from New York.
The Chair overrules the point of order.
Committee Requests for Information
Sec. 75.5 To a bill making appropriations for the mutual security
program, an amendment providing that no funds in the bill shall be
used for purposes of the International Cooperation Administration
program where more than 20 days have elapsed between the submission
of a request by the General Accounting Office or a committee of
Congress for certain information and the furnishing of such
information was held to be a limitation since the information was
required by existing law to be furnished.
On July 28, 1959,(13) the Committee of the Whole was
considering H.R. 8385. The Clerk read as follows:
---------------------------------------------------------------------------
13. 105 Cong. Rec. 14530, 85th Cong. 1st Sess.
---------------------------------------------------------------------------
Amendment offered by Mr. [Porter] Hardy [Jr., of Virginia]: On
page 8, after line 17, insert the following:
Sec. 114. None of the funds herein appropriated shall be used
to carry out any provision of chapter II, III, or IV of the Mutual
Security Act of 1954, as amended, during any period when more than
twenty days have elapsed between the request for, and the
furnishing of, any document, paper, communication, audit, review,
finding, recommendation, report, or other material relating to the
administration of such provision by the International Cooperation
Administration, to the General Accounting Office or any committee
of the Congress, or any duly authorized subcommittee thereof,
charged with considering legislation or appropriation for or
expenditures of the International Cooperation Administration and
the Department of State.'' . . .
Mr. [Gerald R.] Ford [of Michigan]: Mr. Chairman, on reading
the proposed amendment offered by the gentleman from Virginia, it
is my belief this amendment does impose on the executive branch of
the Government additional burdens that are not required by any
existing legislation. For that reason it is legislation on an
appropriation bill. . . .
The Chairman: (14) The Chair is prepared to rule. .
. .
---------------------------------------------------------------------------
14. Wilbur D. Mills (Ark.).
---------------------------------------------------------------------------
The Chair has had an opportunity to examine the amendment made
in the act of 1959 to the Mutual Security Act amending section 534
of that act.
[[Page 6460]]
The Chair is of the opinion that there is legislative
authorization for the furnishing of these documents and for that
which is required within this amendment offered by the gentleman
from Virginia.
The Chair, therefore, overrules the point of
order.(15)
---------------------------------------------------------------------------
15. Parliamentarian's Note: The furnishing of such information was
required by Pub. L. No. 86-108, Sec. 534. Therefore, the
provision for withholding of funds was a limitation and not
legislation.
---------------------------------------------------------------------------
Sec. 75.6 To a general appropriation bill making appropriations for the
Mutual Security Act program, an amendment providing that no funds
in the bill shall be used for purposes of the International
Cooperation Administration program where more than 20 days have
elapsed between the submission of a request by the General
Accounting Office or a committee of Congress for information
required by existing law to be supplied relating to the
administration of ICA and the furnishing of such information, was
held to be a limitation and in order.
On June 17, 1960,(16) during consideration in the
Committee of the Whole of the mutual security appropriation bill (H.R.
12619), a point of order was raised against the following amendment:
---------------------------------------------------------------------------
16. 106 Cong. Rec. 13144, 13145, 86th Cong. 2d Sess.
---------------------------------------------------------------------------
Amendment offered by Mr. [John S.] Monagan [of Connecticut]: On
page 6, immediately below line 12, insert the following:
``Sec. 101. None of the funds herein appropriated shall be used
to carry out any provision of chapter II, III, or IV of the Mutual
Security Act of 1954, as amended, during any period when more than
twenty days have elapsed between the request for, and the
furnishing of, any document, paper, communication, audit, review,
finding, recommendation, report, or other material relating to the
administration of such provision by the International Cooperation
Administration, to the General Accounting Office or any committee
of the Congress, or any duly authorized subcommittee thereof,
charged with considering legislation or appropriation for or
expenditures of the International Cooperation Administration and
the Department of State.''
Mr. [Gerald R.] Ford [of Michigan]: Mr. Chairman, I make a
point of order against the amendment.
The Chairman: (17) The gentleman will state it.
---------------------------------------------------------------------------
17. Wilbur D. Mills (Ark.).
---------------------------------------------------------------------------
Mr. Ford: It is obvious to me, listening to the amendment which
has been read, that it puts additional duties on individuals in the
executive branch and therefore is subject to a point of order.
The Chairman: Does the gentleman from Connecticut desire to be
heard on the point of order?
Mr. Monagan: Mr. Chairman, this same amendment was offered last
[[Page 6461]]
year. A point of order was raised against it at that time and the
point of order was overruled. This is not legislation. It is merely
a limitation on the appropriation.
The Chairman: The Chair is ready to rule. The Chair has had an
opportunity to examine the language of the amendment offered by the
gentleman from Connecticut and finds that the language offered by
the gentleman is similar, if not identical, with the language which
was offered to the appropriation bill last year by the gentleman
from Virginia (Mr. Hardy) on July 28, 1959.
Mr. Monagan: It is identical.
The Chairman: The amendment is set forth in the Congressional
Record, volume 105, part 11, page 14530. The Chair on that occasion
held that the language was a limitation and in order on the
appropriation bill and overruled the point of order.
The Chair is constrained to overrule the point of order now.
United Nations Dues or Assessments
Sec. 75.7 To a general appropriation bill providing funds for the
United States contribution to a United Nations assessment, an
amendment limiting expenditures under the appropriation to 32.02
percent of the aggregate payments to the United Nations by all
members was held to be a limitation and in order.
On Apr. 4, 1962,(18) during consideration in the
Committee of the Whole of a general appropriation bill, a point of
order was raised against the following amendment:
---------------------------------------------------------------------------
18. 108 Cong. Rec. 5943, 5944, 87th Cong. 2d Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
Amendment offered by Mr. [H.R.] Gross [of Iowa]: Page 14
line 16, change the period to a comma and add the following:
``but expenditures from this appropriation by the Department of
State shall be limited to a sum not in excess of 32.02 per
centum of the aggregate payments to the United Nations pursuant
to the resolution (agenda item 55) adopted by the General
Assembly thereof.''
Mr. [John J.] Rooney [of New York]: Mr. Chairman, I make the
point of order that this is legislation on an appropriation bill.
The Chairman: (19) Does the gentleman from Iowa wish
to be heard on the point of order?
---------------------------------------------------------------------------
19. Oren Harris (Ark.).
---------------------------------------------------------------------------
Mr. Gross: Mr. Chairman, a point of order against this
amendment is not good, because this is strictly a limitation. It
does not go to the scope of this bill. It does not disturb any
agreement or any treaty. This is in conformance with the intent and
the purpose of this appropriation. I challenge the gentleman to
show wherein this amendment is legislation on an appropriation
bill.
The Chairman: Does the gentleman from New York desire to be
heard on the point of order?
Mr. Rooney: Mr. Chairman, does not the amendment offered by the
gentleman from Iowa [Mr. Gross] call
[[Page 6462]]
upon the executive department for extra duties; and does it not
refer to outside matters? . . .
The Chairman: The Chair is ready to rule.
The gentleman from Iowa [Mr. Gross] offers an amendment to this
paragraph, to which the gentleman from New York [Mr. Rooney] has
made the point of order that it is legislation on an appropriation
bill. The Chair has carefully read the bill and observes that the
very purpose of the amendment is a limitation. The Chair,
therefore, overrules the point of order.
United Nations Dues in Arrears
Sec. 75.8 To a bill appropriating funds for foreign assistance
programs, an amendment providing in part that none of the funds
therein may be used to pay dues or assessments of members of the
United Nations was held to be a proper limitation restricting the
availability of funds and in order.
On Sept. 20, 1962,(20) the Committee of the Whole was
considering H.R. 13172, a foreign assistance appropriation bill. The
Clerk read as follows, and proceedings ensued as indicated below:
---------------------------------------------------------------------------
20. 108 Cong. Rec. 20187, 20188, 87th Cong. 2d Sess.
---------------------------------------------------------------------------
Amendment offered by Mr. [A. Paul] Kitchin [of North Carolina]:
Add a new section to the title on page 8, after line 4, to read:
``Sec. 113. None of the funds appropriated or made available
pursuant to this act for carrying out the Foreign Assistance Act of
1961, as amended, may be used to pay in whole or in part any
assessments, arrearages or dues of any member of the United
Nations.
Mr. [Wayne L.] Hays [of Ohio]: Mr. Chairman, I make the point
of order that this is legislation on an appropriation bill. . . .
The Chairman: (1) The Chair has had an opportunity
to read the language of the amendment offered by the gentleman from
North Carolina (Mr. Kitchin) to which the gentleman from Ohio (Mr.
Hays) makes a point of order.
---------------------------------------------------------------------------
1. Wilbur D. Mills (Ark.).
---------------------------------------------------------------------------
The language of the gentleman's amendment is a limitation upon
the use of funds contained in the bill and is, therefore, in order
as a limitation. The Chair overrules the point of order.
CHAPTER 26
Unauthorized Appropriations; Legislation on Appropriation Bills
F. PERMISSIBLE LIMITATIONS ON USE OF FUNDS
Sec. 76. Interior
Reclamation Projects; Equating Expenses to Repayments
Sec. 76.1 A provision that no part of an appropriation shall be
available for operation and maintenance of any reclamation projects
in excess of the amount of repayments made pursuant to law during a
current fiscal year was held to be in order as a limitation
[[Page 6463]]
restricting the availability of funds and not requiring the use of
repayments.
On May 1, 1951,(2) the Committee of the Whole was
considering H.R. 3790, an Interior Department appropriation bill. A
point of order against an amendment to the bill was overruled as
indicated below.
---------------------------------------------------------------------------
2. 97 Cong. Rec. 4655, 4656, 82d Cong. 1st Sess.
---------------------------------------------------------------------------
operation and maintenance
For operation and maintenance of reclamation projects or parts
thereof and of other facilities, as authorized by law . . .
$15,385,000, of which not to exceed $12,883,900 shall be derived
from the reclamation fund and not to exceed $1,671,000 shall be
derived from the Colorado River dam fund. . . .
Mr. John Phillips, of California, offered an amendment, which was
read. The following proceedings then took place:
The Clerk read as follows:
Amendment offered by Mr. [John R.] Murdock [of Arizona] to
the amendment offered by Mr. Phillips: On page 16, at the end
of the amendment offered by Mr. Phillips insert: ``Provided
further, That no part of this appropriation shall be available
for operation and maintenance of any irrigation works in excess
of repayments during the current fiscal year pursuant to law.''
Mr. Phillips: Mr. Chairman, I make a point of order against the
amendment.
The Chairman: (3) The gentleman will state the point
of order.
---------------------------------------------------------------------------
3. Wilbur D. Mills (Ark.).
---------------------------------------------------------------------------
Mr. Phillips: Mr. Chairman, the amendment is in effect
legislation on an appropriation bill, and therefore a violation of
rule 21.
I make the further point of order, Mr. Chairman, that the
amendment offered by the gentleman from Arizona to my amendment
purports to be a limitation but is in effect an authorization.
There is no authorization at the present time for expenditures,
from the funds to which the gentleman refers, for operation and
maintenance of these certain projects. Therefore, if the gentleman
from Arizona offers an amendment which says, ``You must not spend
more than that amount of money,'' then it is in effect not a
limitation but an authorization for the expenditure of money to
that point. . . .
The Chairman: The Chair is ready to rule.
The gentleman from Arizona [Mr. Murdock] offers an amendment
which the Clerk has reported to the amendment offered by the
gentleman from California (Mr. Phillips). The gentleman from
California makes a point of order against the amendment for the
reasons which he has stated.
The Chair has had an opportunity to examine the amendment
offered by the gentleman from Arizona to the amendment offered by
the gentleman from California. The Chair has concluded that the
amendment is clearly a limitation, negative in character on an
appropriation bill. The amendment limits in a negative manner the
amount which can be spent only during the fiscal year covered by
the bill presently before the Committee.
[[Page 6464]]
The device by which the limitation of the amount is determined
is the extent to which the law is complied with. It does not add to
the requirements of any law; it does not require compliance with
any law; all it does is to say that you may spend this
appropriation up to the amount that the law requiring repayment is
complied with. The amendment therefore is in order and the Chair
overrules the point of order made by the gentleman from California.
Qualification of Employees in Bureau of Reclamation
Sec. 76.2 An amendment to the Interior Department appropriation bill
proposing that no part of the appropriation for the Bureau of
Reclamation shall be used for salaries of persons in certain
positions who are not qualified engineers with at least 10 years'
experience was held to be a proper limitation and in order.
On May 27, 1948,(4) the Committee of the Whole was
considering H.R. 6705. An amendment was offered by Mr. Alfred J.
Elliott, of California:
---------------------------------------------------------------------------
4. 94 Cong. Rec. 6630, 80th Cong. 2d Sess.
---------------------------------------------------------------------------
Page 38, line 21, insert after the colon the following:
``Provided further, That no part of any appropriation for the
Bureau of Reclamation contained in this act shall be used for the
salaries and expenses of a person in any of the following positions
in the Bureau of Reclamation, or of any person who performs the
duties of any such position, who is not a qualified engineer with
at least 10 years' engineering and administrative experience: (1)
Commissioner of Reclamation; (2) Assistant Commissioner of
Reclamation; and (3) Regional Director of Reclamation.''
Mr. [John W.] McCormack [of Massachusetts]: Mr. Chairman, a
point of order.
The Chairman: (5) The gentleman will state it.
---------------------------------------------------------------------------
5. Carl T. Curtis (Nebr.).
---------------------------------------------------------------------------
Mr. McCormack: Mr. Chairman, the point of order is that it is
legislation upon an appropriation bill, not a limitation. The mere
use of the words ``Provided further'' does not mean it makes
everything in order. This is legislation relating to the
requirements that must be met by one person or certain employees of
the Bureau of Reclamation before they may hold office or be
appointed.
The Chairman: Does the gentleman from California desire to be
heard?
Mr. Elliott: No.
The Chairman: The Chair is of the opinion that the amendment is
a limitation, that it refers to a part of this appropriation;
therefore overrules the point of order.
Territories and Former Possessions
Sec. 76.3 A provision preventing the expenditure of certain funds
appropriated for sala
[[Page 6465]]
ries, administrative expenses, travel, or other purposes in any
territory where refunds of excise-tax collections were being made
to such territory was held to be a proper limitation restricting
the availability of funds and in order on an appropriation bill.
On Mar. 7, 1940,(6) the Committee of the Whole was
considering H.R. 8745, an Interior Department appropriation. The
Clerk read as follows:
---------------------------------------------------------------------------
6. 86 Cong. Rec. 2542, 2543, 76th Cong. 3d Sess.
---------------------------------------------------------------------------
Amendment offered by Mr. [John G.] Alexander [of Minnesota]: On
page 143, after line 14, insert a new section to be known as
section 6, to read as follows:
``No funds appropriated herein shall be expended for salaries,
administrative expenses, travel, or other purposes in any Territory
or former possession where refunds of excise-tax collections are
being made to such Territory or former possession.''
Mr. [Jed] Johnson of Oklahoma: Mr. Chairman, I make the point
of order against the amendment that it constitutes legislation on
an appropriation bill. . . .
Mr. Alexander: Mr. Chairman, it does not seem to me that this
is legislation that comes within the previous rulings of the Chair,
because it is a limitation and therefore comes under the Holman
rule. . . .
Mr. Johnson of Oklahoma: Mr. Chairman, this is not germane
because it refers to appropriations not covered by this bill. . . .
The Chairman: (7) The Chair invites attention to the
fact that the bill does carry certain appropriations for the
Philippine Islands, the Virgin Islands, and insular possessions.
The Chair therefore is under the impression that the amendment is
germane to the provisons of the pending bill, and the Chair is of
the opinion that the amendment offered is in the form of a
limitation and would be in order.
---------------------------------------------------------------------------
7. Jere Cooper (Tenn.).
---------------------------------------------------------------------------
The point of order is overruled.
National Park Roads
Sec. 76.4 In an appropriation bill a provision that none of the funds
in the bill shall be used for maintenance of roads, other than
parkways, outside the boundaries of national parks was held in
order as a limitation restricting the availability of funds.
On Apr. 6, 1954,(8) the Committee of the Whole was
considering H.R. 8680, an Interior Department appropriation. The Clerk
read as follows:
---------------------------------------------------------------------------
8. 100 Cong. Rec. 4721, 83d Cong. 2d Sess.
---------------------------------------------------------------------------
Maintenance and Rehabilitation of Physical Facilities
For expenses necessary for the operation, maintenance, and
rehabilitation of roads (including furnishing special road
maintenance service to defense
[[Page 6466]]
trucking permittees on a reimbursable basis), trails, buildings,
utilities, and other physical facilities essential to the operation
of areas administered pursuant to law by the National Park Service,
$8 million: Provided That none of the funds herein appropriated
shall be used for maintenance of roads, other than national
parkways, outside the boundaries of national parks and monuments.
Mr. [Wesley A.] D'Ewart [of Montana]: Mr. Chairman, I make a
point of order against the language on page 24, starting with the
word ``Provided'' on line 11 and ending on line 14. . . .
Mr. [Ben F.] Jensen [of Iowa]: Even though such expenditures
are authorized by law, the fact still remains that you can provide
a limitation on an appropriation bill, and I so contend. . . .
The Chairman: (9) The Chair is ready to rule. The
Chair has carefully studied the point of order submitted by the
gentleman from Montana (Mr. D'Ewart). The Congress, although it is
authorized to make appropriations, can also deny the use of such
appropriations by proper limitations.
---------------------------------------------------------------------------
9. Charles B. Hoeven (Iowa).
---------------------------------------------------------------------------
The Chair feels that this is a limitation and not legislation
upon an appropriation bill, and therefore overrules the point of
order.
Limiting Draft Deferments
Sec. 76.5 An amendment to the Interior Department appropriation bill
providing that none of the funds therein shall be used to pay the
salary of any person who is qualified physically for military duty
and who received a deferment under specified circumstances was held
a proper limitation and in order.
On Apr. 27, 1944,(10) the Committee of the Whole was
considering H.R. 4679. The following proceedings took place:
---------------------------------------------------------------------------
10. 90 Cong. Rec. 3757, 78th Cong. 2d Sess.
---------------------------------------------------------------------------
Amendment offered by Mr. [James W.] Mott [of Oregon]: On page
107, after section 10, insert a new section, numbered section 11,
as follows:
``Sec. 11. No part of the money appropriated in this act shall
be used to pay the salary of any male person between the ages of 18
and 30 years who is physically and mentally qualified for military
duty, as shown by his selective-service classification, and who has
been deferred from military duty, either at his own request or the
request of the Secretary of the Interior, for reasons other than
dependency or as necessary to war production, and who, 30 days
after the approval of this act, still retains such deferment.''
Mr. [James M.] Fitzpatrick [of New York]: Mr. Chairman, I make
a point of order against the amendment that it is legislation on an
appropriation bill. . . .
The Chairman: (11) The Chair is ready to rule. In
the opinion of the Chair the amendment is a limitation, and the
point of order is overruled.
---------------------------------------------------------------------------
11. John J. Delaney (N.Y.).
---------------------------------------------------------------------------
[[Page 6467]]
Limitation Applicable on Condition Subsequent--Unconstitutionality of
Authorization Law
Sec. 76.6 To a paragraph appropriating money for the National
Bituminous Coal Commission, an amendment providing that if the act
appropriated for is declared unconstitutional by the Supreme Court,
none of the money provided in the bill shall thereafter be spent,
was held in order as a limitation.
On Jan. 24, 1936,(12) the Committee of the Whole was
considering H.R. 10464, a supplemental appropriation bill. The
following proceedings took place:
---------------------------------------------------------------------------
12. 80 Cong. Rec. 994, 996, 74th Cong. 2d Sess.
---------------------------------------------------------------------------
National Bituminous Coal Commission
Salaries and expenses, National Bituminous Coal Commission: For
all necessary expenditures of the National Bituminous Coal
Commission in performing the duties imposed upon said Commission by
the Bituminous Coal Conservation Act of 1935, including personal
services and rent in the District of Columbia and elsewhere,
traveling expenses, contract stenographic reporting services,
stationery and office supplies and equipment, printing and binding,
and not to exceed $2,500 for newspapers, reference books, and
periodicals, fiscal year 1936, $400,000: Provided, That this
appropriation shall be available for obligations incurred on and
after September 21, 1935, including reimbursement to other
appropriations of the Department of the Interior for obligations
incurred on account of said Commission. . . .
Mr. [Robert L.] Bacon [of New York]: Mr. Chairman, I offer an
amendment.
The Clerk read as follows:
Amendment offered by Mr. Bacon: Page 22, line 11, after the
word ``Commission'', insert ``Provided, That if the Bituminous
Coal Conservation Act of 1935 is declared to be
unconstitutional by the Supreme Court of the United States, no
money herein provided shall thereafter be spent, and all money
herein appropriated and unexpended shall be immediately covered
back into the Treasury.''
Mr. [Clifton A.] Woodrum [of Virginia]: Mr. Chairman, I make a
point of order against the amendment.
The Chairman: (13) The gentleman will state his
point of order.
---------------------------------------------------------------------------
13. Jere Cooper (Tenn.).
---------------------------------------------------------------------------
Mr. Woodrum: This seems to me to be legislation undertaking to
effect a limitation. If, of course, the Supreme Court declares the
act unconstitutional expenditures under it will cease and no money
may thereafter be expended under the act.
Mr. Bacon: Mr. Chairman, it seems to me this is an amendment
that comes within the Holman rule, that it is a limitation saving
money for the Treasury of the United States.
Mr. Woodrum: But it is made contingent on something that may or
may not happen.
[[Page 6468]]
Mr. Bacon: Yes; it is made contingent on something happening.
Mr. [Kent E.] Keller [of Minnesota]: Mr. Chairman, if the
gentleman will yield, is the gentleman suggesting that the Congress
should hint the unconstitutionality of a law before it is passed on
by the Supreme Court?
The Chairman: The Chair is of the opinion that the Holman rule
does not necessarily apply. The Chair is of the opinion, however,
that the amendment is a limitation. The purport of the amendment
taken as a whole impresses the Chair as being a limitation.
Mr. Woodrum: May I call the attention of the Chair to the fact
that the amendment means hereafter, any time in the future, any
appropriation that hereafter may be made, and that it is not
confined to the appropriation in this bill?
The Chairman: Yes; that is the very point on which the Chair's
decision turns. The Chair interprets the words used in the
amendment to mean that it refers to the appropriation provided in
this bill. It would, therefore, be a limitation on the
appropriation here provided. The Chair, therefore, overrules the
point of order.
Consultant Salaries
Sec. 76.7 A provision in a general appropriation bill authorizing
expenditures of funds provided in the bill for temporary services
of consultants at rates not in excess of $100 per day was held to
be in order as a limitation which did not set rates of pay but
merely restricted use of funds in the bill.
On Apr. 24, 1951,(14) The Committee of the Whole was
considering H.R. 3790, an Interior Department appropriation bill.
The following proceedings took place:
---------------------------------------------------------------------------
14. 97 Cong. Rec. 4307, 82d Cong. 1st Sess.
---------------------------------------------------------------------------
administrative provisions
Appropriations of the Bonneville Power Administration shall be
available to carry out all the duties imposed upon the
Administrator pursuant to law, including not to exceed $40,000 for
services as authorized by section 15 of the act of August 2, 1946
(5 U.S.C. 55a), including such services at rates not to exceed $100
per diem for individuals; purchase of not to exceed 16 passenger
motor vehicles of which 12 shall be for replacement only; and
purchase (not to exceed 2) of aircraft. . . .
Mr. [Edward H.] Rees of Kansas: Mr. Chairman, I make a point of
order against the language appearing in the bill beginning with
line 24, page 5, and continuing through to line 12, page 6, on the
ground it is legislation on an appropriation bill. . . .
Mr. [Henry M.] Jackson of Washington: Mr. Chairman, all of the
language contained in the point of order raised by the gentleman
from Kansas is authorized by law under the Bonneville Project Act
and other acts and amendments to the original Bonneville Project
Act and may be found in Sixteenth United States Code, section 825.
For example, there is contained in the area covered by the
gentleman's
[[Page 6469]]
point of order the authority with reference to the purchase of
automobiles. This is contained in general authorizing legislation
that is applicable to all departments of Government.
The Chairman: (15) Will the gentleman from Kansas be
more specific with reference to the language that he deems to be
legislation on an appropriation bill?
---------------------------------------------------------------------------
15. Wilbur D. Mills (Ark.).
---------------------------------------------------------------------------
Mr. Rees of Kansas: Mr. Chairman, the language in line 4,
beginning with the word ``including'' and ending with the word
``individuals'' in line 5 is certainly without authorization and
for that reason the entire paragraph, in my judgment, is
legislation on an appropriation bill and not authorized.
Mr. Jackson of Washington: Mr. Chairman, in response to the
gentleman's contention at that point, may I say that Public Law 600
of the Seventy-ninth Congress specifically authorizes the
Department to do this very thing.
The Chairman: It authorizes the department to pay at the rate
of $100 per diem?
Mr. Jackson of Washington: That is right.
The Chairman: Will the gentleman from Washington explain to the
Chair the reason for carrying it in the appropriation bill itself,
if it is authorized?
Mr. Jackson of Washington: Unless the Committee on
Appropriations each year authorizes a specific amount, they have no
authority to spend any money for this purpose. In other words,
existing law gives the department the authority to pay per diem
expenses to individuals but the amount as to what should be paid is
left to the discretion of the Committee on Appropriations, and the
committee from time to time has changed the amount. I will be glad
to read from Fifth United States Code, section 55a, as follows:
The head of any department, when authorized in an
appropriation or other act, may procure the temporary (not in
excess of 1 year) or intermittent services of experts or
consultants or organizations thereof.
I think that section clearly leaves it to Congress, and
Congress has to act each year for the simple reason that the
authority to make the payment is limited to a maximum of 1 year.
Mr. Rees of Kansas: Mr. Chairman, may I add this further? It
would occur to me then it is an attempt by law to change the Rules
of the House and that certainly cannot be done. So, we still have
legislation on an appropriation bill.
The Chairman: For the information of the gentleman from Kansas
the Chair will read from the United States Code, title 5, on page
79, section 35a:
Temporary employment of experts or consultants; rate of
compensation:
The head of any department, when authorized in an
appropriation or other act, may procure the temporary (not in
excess of 1 year) or intermittent services of experts or
consultants or organizations thereof, including stenographic
reporting services, by contract and in such cases such service
shall be without regard to the civil service and classification
laws (but as to agencies subject to sections . . . at rates not
in excess of the per diem equivalent of the highest rate
payable under said sections, unless other rates are
specifically provided in the appropriation or other law) and
except in the
[[Page 6470]]
case of stenographic reporting services by organizations
without regard to section 5 of title 41.
Mr. [John] Taber [of New York]: Might I be allowed to make a
suggestion, Mr. Chairman?
The Chairman: The Chair will be pleased to hear the gentleman
from New York.
Mr. Taber: It is the duty of the legislative committees to
bring in legislation that will fix the rate of compensation. A
limitation by a Committee on Appropriations can be made restricting
the amount below the statutory amount. But when you come by a
statute to authorize the Committee on Appropriations to bring in
legislation, it is utterly void, because the rules of the House
provide that the Committee on Appropriations shall not bring in
legislation. This not being a limitation or anything of that kind,
it is clearly legislation and not in order on this bill.
Mr. Jackson of Washington: If the Chair will permit me to speak
further, of course the answer to the statement of the gentleman
from New York is that the argument does not apply when the
Committee on Appropriations has been authorized by another basic
law, and that law itself contemplates the very possibility which
has arisen here, namely, that from time to time rates would have to
be fixed each year as to the amount that should be paid on a per
diem basis. The argument the gentleman from New York has advanced
has no application in this instance because specific authorizing
legislation has covered this part of it.
The Chairman: As the Chair understands, there is no per diem
ceiling fixed in the provision to which the Chair has alluded. The
gentleman from New York mentions a ceiling, and then the authority
of the committee to place a limitation under that ceiling. Does the
gentleman from New York know of some ceiling provided in law for
per diem pay?
Mr. Taber: I do not, but there is legislation to fix the rate
of pay, and the authority contained in the legislation would not
give the Committee on Appropriations jurisdiction because the
jurisdiction of the committee is governed by the rules of the
House. You cannot change the rules of the House by legislation.
The Chairman: The gentleman from New York is correct that you
cannot change the rules of the House by legislation, but the
language referred to by the Chair seems to authorize beyond any
doubt the per diem payment by this service to individuals. There
does not appear to be any ceiling fixed upon what the payment per
day may be. So it appears to the Chair that the language contained
in the bill in line 4 through ``individuals'' in line 5 on page 6
is actually in the form of a limitation. Therefore, the Chair
overrules the point of order made by the gentleman from Kansas.
Parliamentarian's Note: The Chair by citing the above statute was
not ruling that the language of that law specifically permitted the
Committee on Appropriations in a general appropriation bill to fix per
diem rates of pay--rather that a negative limitation setting a ceiling
on use of those funds for per diem pay was in order under Rule XXI
clause 2, as a limitation.
[[Page 6471]]
Reindeer Industry
Sec. 76.8 To an appropriation for the purchase of reindeer, an
amendment limiting the purchase to an average price of $4 per head
was held to be a limitation restricting the availability of funds
in the bill and in order.
On Mar. 15, 1939,(16) the Committee of the Whole was
considering H.R. 4852, an Interior Department appropriation. The Clerk
read as follows, and proceedings ensued as indicated below:
---------------------------------------------------------------------------
16. 84 Cong. Rec. 2789, 2790, 76th Cong. 1st Sess.
---------------------------------------------------------------------------
Reindeer industry, Alaska: For the purchase, in such manner as
the Secretary of the Interior shall deem advisable and without
regard to sections 3709 and 3744 of the Revised Statutes, of
reindeer, abattoirs, cold-storage plants . . . and communication
and other equipment, owned by nonnatives in Alaska, as authorized
by the act of September 1, 1937 (50 Stat. 900), $820,000 . . .
Provided, That under this appropriation not exceeding an average of
$4 per head shall be paid for reindeer purchased from nonnative
owners: Provided further, That the foregoing limitation shall not
apply to the purchase of reindeer located on Nunivak Island.
Mr. [John C.] Schafer of Wisconsin: Mr. Chairman, I make the
point of order against the paragraph on the ground that it is
legislation on an appropriation bill unauthorized by law. In fact,
the language clearly indicates that it repeals the specific
provisions of existing law as incorporated in sections 3709 and
3744 of the Revised Statutes.
The Chairman: (17) Does the gentleman from Oklahoma
desire to be heard?
---------------------------------------------------------------------------
17. Frank H. Buck (Calif.).
---------------------------------------------------------------------------
Mr. [Jed] Johnson of Oklahoma: No; I concede the point of
order.
The Chairman: The point of order is sustained.
Mr. Johnson of Oklahoma: Mr. Chairman, I offer the following
amendment, which I send to the desk and ask to have read.
The Clerk read as follows:
Amendment offered by Mr. Johnson of Oklahoma: Page 60, line
23, insert a new paragraph, as follows:
``Reindeer industry, Alaska: For the purchase, in such
manner as the Secretary of the Interior shall deem advisable,
of reindeer . . . as authorized by the act of September 1, 1937
(50 Stat. 900), $820,000 . . . Provided, That under this
appropriation not exceeding an average of $4 per head shall be
paid for reindeer purchased from nonnative owners: Provided
further, That the foregoing limitation shall not apply to the
purchase of reindeer located on Nunivak Island.''
Mr. Schafer of Wisconsin: Mr. Chairman, I make the point of
order against the amendment on the ground that it is legislation on
an appropriation bill, unauthorized by law, and it delegates to the
Department additional authority which it does not now have. . . .
Mr. Johnson of Oklahoma: Mr. Chairman, I feel that it is
unnecessary
[[Page 6472]]
to make an extended argument, as I am sure the Chair is fully
advised and ready to rule. Certainly there is no question but that
this item is clearly authorized by existing law. Authority will be
found in the act of September 1, 1937, Fiftieth Statutes, page 900.
It plainly authorizes an appropriation of $2,000,000. I call the
attention of the Chair to section 16 which reads as follows:
The sum of $2,000,000 is hereby authorized to be
appropriated for the use of the Secretary of the Interior in
carrying out the provisions of this act.
Mr. [Harold] Knutson [of Minnesota]: What more authority do you
want? That is enough.
Mr. [Albert E.] Carter [of California]: Mr. Chairman, I would
like to be heard on the point of order.
The Chairman: The gentleman from California is recognized.
Mr. Carter: The opening sentence of the amendment reads:
For the purchase in such manner as the Secretary of the
Interior shall deem advisable.
Now, certainly there is nothing in the statute that gives the
Secretary of the Interior that much discretion. In addition to
that, Mr. Chairman, I desire to call the attention of the Chair to
the proviso in the amendment which reads as the proviso in the
bill, which is clearly legislation. Therefore I say the point of
order must be sustained against the proposed amendment.
The Chairman: The Chair is ready to rule. The act of September
1, 1937, on which the appropriation contained in this paragraph is
based, reads in part as follows:
Sec. 2. The Secretary of the Interior is hereby authorized
and directed to acquire, in the name of the United States, by
purchase or other lawful means, including exercises of power of
eminent domain, for and on behalf of the Eskimos and other
natives of Alaska, reindeer, reindeer range, equipment,
abattoirs, cold-storage plants, warehouses and other property,
real or personal, the acquisition of which he determines to be
necessary to the effectuation of the purposes of this act.
This seems to be a broad, all-inclusive grant of power. The
language used in the amendment offered by the gentleman from
Oklahoma merely restates, in slightly different words, the
authorization contained in the act of September 1, 1937.
The proviso to which the gentleman from California (Mr. Carter)
refers appears to the Chair to be nothing more than a limitation,
in the strictest sense of the word.
For these reasons the Chair overrules both points of order.
Sec. 76.9 A direction in law to an executive official to acquire, by
purchase or otherwise, ``necessary'' cold storage plants and other
equipment for purposes of developing the Alaskan reindeer industry,
was held to permit an appropriation for the object to be
implemented in such manner as the official shall determine.
The proceedings of Mar. 15, 1939,(18) are discussed
in Sec. 76.8, supra. At
[[Page 6473]]
issue was the amendment offered by Mr. Jed Johnson, of Oklahoma.
---------------------------------------------------------------------------
18. 84 Cong. Rec. 2789, 2790, 76th Cong. 1st Sess.
---------------------------------------------------------------------------
CHAPTER 26
Unauthorized Appropriations; Legislation on Appropriation Bills
F. PERMISSIBLE LIMITATIONS ON USE OF FUNDS
Sec. 77. Treasury and Post Office
Mail Seizure
Sec. 77.1 An amendment to a Treasury and Post Office Departments
appropriation bill, providing that no funds therein may be used for
the seizure of mail (in connection with income tax investigations)
without a search warrant was held to be a limitation and in order.
On Apr. 5, 1965,(19) The Committee of the Whole was
considering H.R. 7060. The Clerk read as follows, and proceedings
ensued as indicated below:
---------------------------------------------------------------------------
19. 111 Cong. Rec. 6869, 6870, 89th Cong. 1st Sess.
---------------------------------------------------------------------------
Amendment offered by Mr. [Durward G.] Hall [of Missouri]: On
page 8, immediately before the period in line 11, insert the
following: ``: Provided, That no appropriation made by any
provision of this Act for the fiscal year ending June 30, 1966, may
be used for the seizure of mail without a search warrant authorized
by law in carrying out the activities of the United States in
connection with the seizure of property for collection of taxes due
to the United States''.
Mr. [Thomas J.] Steed [of Oklahoma]: Mr. Chairman, I reserve a
point of order on this amendment.
The Chairman: (20) The gentleman from Oklahoma
reserves a point of order. . . .
---------------------------------------------------------------------------
20. John A. Blatnik (Minn.).
---------------------------------------------------------------------------
Mr. Steed: Chairman, I renew my point of order against the
amendment because it is not a limitation on appropriations. It
requires actions by the Bureau of Internal Revenue, which can be
authorized only by legislation.
The Chairman: The language is a limitation here. The Chair
overrules the point of order. The point of order is not sustained.
Parliamentarian's Note: Subsequent rulings have cast some doubt on
the applicability at present of the above ruling. On June 16, 1977, an
amendment which prohibited the use of funds by OSHA for any inspection
conducted by that agency without a search warrant based on probable
cause as authorized by law was held out of order as legislation since
it would impose new affirmative duties to make applications to courts,
a procedure not required by statutory law or uniformly required by the
federal courts. See 123 Cong. Rec. 19373, 95th Cong. 1st Sess. [H.R.
7555]. If a definitive ruling by the Supreme Court had existed which
required a probable cause warrant for inspections by OSHA, such ruling
might, of course, have constituted a sufficient basis in law for the
limitation as proposed to
[[Page 6474]]
be held in order. As it was, the Chair merely took into account (by
judicial notice) the fact that federal court rulings had not been
uniform or finally dispositive of constitutional requirements as to
obtaining search warrants in such cases. The Chair did note in his
ruling that the amendment would require such warrants even where
inspection was voluntarily submitted to, whereas probable cause
warrants are not ordinarily required under the case law when voluntary
consent is given to the search.
Again, on June 7, 1978, an amendment to a general appropriation
bill denying use of funds for OSHA to conduct inspections of small
businesses unless a warrant had been previously obtained was ruled out
of order as legislation since existing law as interpreted by the
Supreme Court required a warrant for such inspections only where the
business under inspection insisted upon such a warrant. See 124 Cong.
Rec. 16677, 95th Cong. 2d Sess. [H.R. 12929]. It may be noted that the
ruling above, on Apr. 5, 1965, is arguably distinguishable from the
later rulings, since the amendment held in order on that occasion did
not include the term ``probable cause'' (which is a judicial finding)
to define the necessary warrant, which could therefore be an
administrative warrant. In the final analysis, however, whether the
1965 amendment was a permissible limitation would depend on whether
existing law at the time did require search warrants prior to the
seizure of mail in connection with income tax investigations. If so,
the amendment would merely be a restatement of existing law and
therefore allowable. It would appear, however, that the Internal
Revenue Service had a persuasive argument at the time that it had the
authority to seize the mail of delinquent taxpayers without a warrant.
Section 6331(a) of the Internal Revenue Code provides the Secretary of
the Treasury with authority to levy upon all property and upon rights
to property of a delinquent taxpayer 10 days after notice and demand.
Notwithstanding any other provision of law, the only property which
cannot be levied upon is defined in code Sec. 6334(c). In 1965, mail
was not enumerated as an exception in code Sec. 6334. The Service
relied on several Supreme Court cases to establish that mail was
property (Searight v Stokes, 44 U.S. 151); that judicial seizures of
mail did not violate constitutional guarantees (Ex parte Jackson, 96
U.S. 721), and that statu
[[Page 6475]]
torily authorized levy procedures do not violate due process guarantees
(Springer v U.S., 102 U.S. 586). An argument might be made that mail in
the hands of the Post Office was not the property of the taxpayer-
addressee. But since it had been held that an addressee has a
sufficient legal right to the mail to enable him to recover it from
third parties (U.S. v Jones, 31 F2d 755, 3d Cir. 1929), it could be
argued that the taxpayer had a sufficient property interest in it upon
which the Service could levy.
Distribution of Funds to States
Sec. 77.2 An amendment to a paragraph of an appropriation bill
providing that no part of the funds therein contained shall be
distributed to states on a per capita income basis was held to be a
proper limitation restricting the use of funds and in order.
On Feb. 7, 1936,(1) the Committee of the Whole was
considering H.R. 10919, a Treasury and Post Office Departments
appropriation bill. A point of order against an amendment to the bill
was overruled as follows:
---------------------------------------------------------------------------
1. 80 Cong. Rec. 1679, 74th Cong. 2d Sess.
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Grants to States for public-health work: For the purpose of
assisting States, counties, health districts, and other political
subdivisions of the States in establishing and maintaining adequate
public-health services, including the training of personnel for
State and local health work, as authorized in sections 601 and 602,
title VI, of the Social Security Act, approved August 14, 1935 (49
Stat. 634), $8,000,000.
Mr. [John] Taber [of New York]: Mr. Chairman, I offer an
amendment.
The Clerk read as follows:
Amendment offered by Mr. Taber: Page 36, line 19, after the
period, strike out the period, insert a comma and the
following: ``Provided, That no part of the funds appropriated
in this paragraph shall be distributed to States on a per-
capita income basis.
Mr. [Carl] Vinson of Kentucky: Mr. Chairman, I make a point of
order. The basis for the point of order is that it is legislation
on an appropriation bill.
Mr. Taber: Mr. Chairman, it is purely a limitation. It
prohibits the expenditure for certain purposes.
The Chairman: (2) The Chair is of the opinion that
it is a limitation on an appropriation, and, therefore, overrules
the point of order.
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2. Arthur H. Greenwood (Ind.).
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Parliamentarian's Note: Section 602 of 49 Stat. 634 prescribed a
broad allotment formula as follows:
(a) The Surgeon General of the Public Health Service, with the
approval of the Secretary of the Treasury, shall, at the beginning
of each fiscal year, allot
[[Page 6476]]
to the States the total of (1) the amount appropriated for such
year pursuant to section 601; and (2) the amounts of the allotments
under this section for the preceding fiscal year remaining unpaid
to the States at the end of such fiscal year. The amounts of such
allotments shall be determined on the basis of (1) the population;
(2) the special health problems; and (3) the financial needs; of
the respective States.
This limitation did not change any stated element in the formula.
Subversive Activities
Sec. 77.3 An amendment to an appropriation bill, offered as a separate
paragraph, prohibiting appropriations to pay the salary or expenses
of any persons against whom charges have been brought under House
Resolution 105 (relating to investigation of subversion) and not
disposed of, was held a proper limitation upon an appropriation
bill and in order.
On Feb. 9, 1943,(3) the Committee of the Whole was
considering H.R. 1648, a Treasury and Post Office Departments
appropriation. A point of order was made and overruled as indicated
below:
---------------------------------------------------------------------------
3. 89 Cong. Rec. 754, 78th Cong. 1st Sess.
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Amendment offered by Mr. (Everett M.) Dirksen (of Illinois): On
page 52, after line 16, insert a new paragraph as follows:
``Section 303. No part of any appropriation or authorization in
this act shall be used to pay the salary or expenses of any persons
against whom charges have been brought under the terms of House
Resolution 105 (4) where such charges have not been
disposed of by action of the House exonerating such person or by
enactment into law of a bill or resolution making some other
disposition thereof.''
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4. H. Res. 105 authorized the Committee on Appropriations to examine
charges against executive employees based on such employees'
membership in subversive organizations.
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Mr. [Clarence] Cannon of Missouri: Mr. Chairman, I raise a
point of order against the amendment. I take it the gentleman from
Illinois will concede the point of order?
Mr. Dirksen: I do not concede it. I think it is a perfectly
proper limitation.
Mr. [John W.] McCormack [of Massachusetts]: Mr. Chairman, I
rise to call the attention of the Chair on the point of order to
the fact that this attempted limitation requires affirmative
action, additional duties, on the part of some agency of the House
or someone else. . . .
The Chairman: (5) The Chair is prepared to rule.
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5. Wirt Courtney (Tenn.).
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While not identical, of course, with amendments along the same
line and of the same general nature offered earlier in the debate,
the Chair is of the opinion that this amendment partakes of the
nature of those amendments offered earlier.
[[Page 6477]]
The Chair is of the opinion that this does not require
affirmative action, that it does not get into the realm of
affirmative legislation, that it is a limitation, and, as the Chair
stated when the other amendments were under consideration, the
Congress, having the power to appropriate, would by the same token
have the right and the authority to limit the appropriation.
The Chair is constrained to hold that the point is not well
taken. It is therefore overruled.
Silver Purchase
Sec. 77.4 An amendment providing that none of the funds appropriated in
a bill shall be used for carrying out the purchase of any silver,
except newly mined silver from the United States, was held in order
as a limitation on an appropriation bill.
On Feb. 28, 1939,(6) he Committee of the Whole was
considering H.R. 4492, a Treasury and Post Office Departments
appropriation bill. The Clerk read as follows:
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6. 84 Cong. Rec. 2021-23, 76th Cong. 1st Sess.
---------------------------------------------------------------------------
Salaries and expenses, mints and assay offices: For
compensation of officers and employees of the mints including
necessary personal services for carrying out the provisions of the
Gold Reserve Act of 1934 and the Silver Purchase Act of 1934 . . .
$2,016,000. . . .
Mr. [John] Taber [of New York]: Mr. Chairman, I offer an
amendment.
The Clerk read as follows:
Amendment offered by Mr. Taber: On page 45, line 5, after
the comma, strike out ``$2,016,000'' and insert ``$1,916,000''
and the following: ``Provided, That none of the funds
appropriated in this bill shall be used for carrying out the
purchase of any silver, except newly mined silver mined in the
United States.''. . .
[Mr. Louis Ludlow, of Indiana, reserved a point of order, but
later withdrew such reservation, whereupon Mr. Abe Murdock, of
Utah, made a point of order as shown below. Prior to the point of
order, debate took place as follows:]
Mr. Taber: Mr. Chairman, I have offered this limitation, and it
is a pure limitation and clearly in order, to reduce the amount of
the appropriation on page 45 by $100,000. This is probably $25,000
less than the amount that should be saved as a result of the
operation of the amendment. I have offered the amendment for the
purpose of preventing the purchase of any silver by the United
States Government under any of the Silver Purchase Acts, with the
exception of newly mined silver mined in the United States. . . .
Mr. [John A.] Martin of Colorado: Just how does shrinking the
appropriation by $100,000 prevent the purchase of the foreign
silver?
Mr. Taber: It prevents the use of any of the funds appropriated
in this act for the purpose of such purchase. Without the
expenditures for the personnel involved in such purchase there can
be no purchase. Without the expenditures for carting and handling
the silver to the storage warehouse at
[[Page 6478]]
West Point there can be no purchase of foreign silver.
Mr. Martin of Colorado: If the gentleman will yield further,
the gentleman's amendment does not affect the power of the
Secretary of the Treasury to make such purchases inasmuch as the
Silver Purchase Act confers the power on him.
Mr. Taber: My amendment prohibits the expenditure of any of the
funds for that purpose. Under this proviso, a limitation, it would
be absolutely impossible for the Secretary of the Treasury to spend
any of the funds appropriated in this act for the purpose of
carrying out the purchase of any silver, with the exception of
newly mined silver mined in the United States. . . .
Mr. [Charles L.] Gifford [of Massachusetts]: Would the
gentleman tell the Committee the method of paying for this silver
by issuing silver certificates on the basis of $1.29 for 44 cents
and 64 cents silver and what this would eventually lead to?
Mr. Taber: Well, it simply leads, eventually, to inflation, of
course, but what I want to do at this time is to bring the folks
from the silver territory to a realization of the fact that if they
are going to expect any consideration along the line of a subsidy
for silver--and that is what this is--they have got to get rid of
the burden of foreign-mined and foreign-stored silver. As a result
of this operation of handling this foreign-mined and foreign-stored
silver the United States will be paying for the operation of the
Chinese-Japanese war, and before we get through we will be paying
for the operation of the Spanish civil war that has been going on.
There must be some limitation somewhere upon these expenditures. .
. .
Mr. [Francis H.] Case of South Dakota: The gentleman has
already said that this would prohibit the use of any of this money
for foreign-produced silver, and now the gentleman states
positively that there is nothing in his amendment that would
interfere with the purchase of domestically produced silver under
the Silver Purchase Act.
Mr. Taber: It will not interfere with newly mined domestically
produced silver mined in the United States. It will interfere with
the purchase of stored silver in the United States.
Mr. [Fred L.] Crawford [of Michigan]: Mr. Chairman, will the
gentleman yield?
Mr. Taber: I yield to the gentleman from Michigan.
Mr. Crawford: And one should also keep in mind that we have the
Thomas amendment and also the Silver Purchase Act and this
amendment which the gentleman proposes would not, under the Thomas
amendment of the Silver Purchase Act, interfere with the purchase
of domestically mined silver. . . .
Mr. Murdock of Utah: Mr. Chairman, I make the point of order
that the amendment submitted by the gentleman from New York is in
violation of the Holman rule and constitutes legislation on an
appropriation bill. . . .
The Chairman: (7). . . The Chair simply desires to
call the attention of the Committee to a ruling that has been made
in the past on a question very similar to this one, and the Chair
[[Page 6479]]
reads from a decision of the Honorable Nelson Dingley, of Maine,
Chairman of the Committee of the Whole, on January 17, 1896, in
which he ruled:
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7. John W. Boehne (Ind.).
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The House in Committee of the Whole has the right to refuse
to appropriate for any object, either in whole or in part, even
though that object may be authorized by law. That principle of
limitation has been sustained so repeatedly that it may be
regarded as a part of the parliamentary law of the Committee of
the Whole.
Because of this decision the Chair overrules the point of
order.
Air Carriage of Foreign Mails
Sec. 77.5 An amendment providing that no part of an appropriation for
transportation of foreign mails by aircraft shall be paid to any
corporation which shall directly or indirectly purchase insurance
from any official or employee of the United States was held in
order as a limitation on an appropriation bill.
On Feb. 28, 1939,(8) he Committee of the Whole was
considering H.R. 4492, a Treasury and Post Office Departments
appropriation bill. The Clerk read as follows, and proceedings ensued
as indicated below:
---------------------------------------------------------------------------
8. 84 Cong. Rec. 2034, 2035, 76th Cong. 1st Sess.
---------------------------------------------------------------------------
Foreign air-mail transportation: For transportation of foreign
mails by aircraft, as authorized by law $10,200,000.
Mr. [John C.] Schafer of Wisconsin: Mr. Chairman, I offer an
amendment.
The Clerk read as follows:
Amendment offered by Mr. Schafer of Wisconsin: Page 64,
line 14, after the period, insert: ``Provided, That no part of
the funds herein appropriated shall be paid to any corporation
which shall directly or indirectly purchase insurance from any
official or employee of the United States or any member of
their immediate family.''
Mr. [Louis] Ludlow [of Indiana]: Mr. Chairman, a point of
order.
The Chairman: (9) The gentleman will state it.
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9. John W. Boehne (Ind.).
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Mr. Ludlow: I make the point of order, Mr. Chairman, that it is
legislation on an appropriation bill. . . .
Mr. Schafer of Wisconsin: I wish to be heard briefly, Mr.
Chairman.
This is a limitation. My amendment applies to a paragraph of
the bill which makes an appropriation of $10,200,000 as a subsidy
to aviation corporations which are engaged in the transportation of
foreign air mail. In view of the fact that administrative branches
of the Government determine what corporations are to receive these
large subsidies, it is necessary to include the language of the
amendment in order that private personal interests of Government
officials and employees and their families might not conflict with
the public interest with a resulting increased cost to the
taxpayers' Treasury. This amendment is a limitation with a purpose
of reducing the cost of
[[Page 6480]]
government, and I submit it is in order. . . .
The Chairman: The Chair is ready to rule. The Chair is of the
opinion that this is definitely a limitation and, therefore, the
point of order is overruled.
Pay for Services Related to Investigations
Sec. 77.6 A provision that no part of an appropriation shall be used to
pay any person detailed or loaned for service in connection with
any congressional investigation was held to be in order as a proper
limitation.
On Feb. 19, 1937,(10) the Committee of the Whole was
considering H.R. 4720, a Treasury and Post Office Departments
appropriation bill. The Clerk read the following provision of the bill
against which a point of order was raised:
---------------------------------------------------------------------------
10. 81 Cong. Rec. 1445, 1446, 75th Cong. 1st Sess.
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Sec. 5. No part of the appropriations contained in this act
shall be used to pay the compensation of any person detailed or
loaned for service in connection with any investigation or inquiry
undertaken by any committee of either House of Congress under
special resolution thereof.
Mr. [John E.] Rankin [of Mississippi]: Mr. Chairman, I make a
point of order against section 5 on the ground it is legislation on
an appropriation bill. . . .
The Chairman: (11) . . . The question raised is
whether this is a proper limitation to be placed on an
appropriation bill. If it be a proper limitation, then the point of
order cannot be sustained. It is a question whether any law is
changed by this section. If special committees desire to employ any
employee from a department, they can still employ them by making
proper arrangements and paying for them out of the appropriations
that have been made for the special committees, but this is an
appropriation bill for the Treasury and Post Office Departments,
and the question arises whether the House in Committee of the Whole
can place a limitation not only that will save money, but will
direct to whom that money will be paid.
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11. Arthur H. Greenwood (Ind.).
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There are many decisions defining limitations on appropriation
bills, but one of the best that the Chair has found is one given by
Chairman Nelson Dingley, of Maine, on January 13, 1896, which is
found on page 47 of Cannon's Procedure of the House of
Representatives. The ruling of the Chairman at that time was as
follows:
The House in Committee of the Whole has the right to refuse
to appropriate for any object, either in whole or in part, even
though that object may be authorized by law. That principle of
limitation has been sustained so repeatedly that it may be
regarded as a part of the parliamentary law of the Committee of
the Whole. . . .
Again, on December 8, 1922, the Treasury Department
appropriation
[[Page 6481]]
bill was under consideration in the Committee of the Whole House on
the state of the Union, when the paragraph providing an
appropriation for the enforcement of the National Prohibition Act
was reached Mr. Tinkham, of Massachusetts, proposed this amendment:
Add a new provision, as follows: ``Provided That no part of
this appropriation shall be used for the payment of a salary of
any employee who shall not have been appointed after a
competitive examination and certification by the Civil Service
Commission.''
Mr. Madden made a point of order against this amendment and
cited the section of the law which permitted the Commissioner of
Internal Revenue and the Attorney General to select certain
employees to help enforce the law.
The Chairman of the Committee of the Whole at that time was the
gentleman from Indiana, Mr. Sanders; and the Chair reads his
decision:
The Committee on Appropriations, of course, have no
legislative powers except such as are prescribed by the rules,
and an amendment cannot be offered which proposes legislation
unless it comes within the rules. However, there is a very long
line of decisions which permits limitations upon
appropriations. An appropriation shall be paid to any certain
class of employees, and the Chair knows of no reason why an
amendment which provides that no part of this appropriation
shall be paid to employees unless they have certain
qualifications is not a proper limitation. The Chair therefore
overrules the point of order.
That decision may be found in Cannon's Precedents, volume 7,
section 1593.
The Chair thinks that the section of the bill against which the
point of order is made is a proper limitation upon the use of the
appropriation contained in the bill. It does not necessarily have
to reduce the amount that shall be paid. It can direct to whom it
shall be paid. The Chair is of the opinion, therefore, that the
section is clearly within the power of the Committee of the Whole
to place a limitation upon an appropriation; and the Chair,
therefore, overrules the point of order.
Compensation of Named Persons
Sec. 77.7 An amendment to a paragraph of an appropriation bill
providing that no part of the money contained in the act shall be
paid as compensation to several persons, naming them, was held
germane and a proper limitation upon an appropriation bill.
On Feb. 5, 1943,(12) the Committee of the Whole was
considering H.R. 1648, a Treasury and Post Office Departments
appropriation bill. The Clerk read as follows:
---------------------------------------------------------------------------
12. 89 Cong. Rec. 645, 646, 78th Cong. 1st Sess.
---------------------------------------------------------------------------
Expenses of loans: The indefinite appropriation ``Expenses of
loans, act of September 24, 1917, as amended and extended'' (31
U.S.C. 760, 761), shall not be used during the fiscal year 1944 to
supplement the appropriations otherwise provided for the current
work of the Bureau of the Public Debt. . . .
[[Page 6482]]
Mr. [Joe] Hendricks [of Florida]: Mr. Chairman, I offer the
following amendment, which I send to the desk.
The Clerk read as follows:
Amendment offered by Mr. Hendricks: Page 12, line 22, after
the word ``Treasury'', strike out the period and insert a colon
and the following: ``Provided further, That no part of any
appropriation contained in this act shall be used to pay the
compensation of William Pickens, Frederick L. Schuman . . .
and Edward Scheunemann.''
Mr. [Vito] Marcantonio [of New York]: Mr. Chairman, I make the
point of order that the amendment provides for the refusal of
payment of salaries to individuals whose salaries are not provided
for in this appropriation bill and, therefore, that the amendment
is not germane. Further, I make the point of order that it is
legislation on an appropriation bill. . . .
The Chairman: (13) With respect to the point of
order made by the gentleman from New York [Mr. Marcantonio],
amendments of this character have been inserted in appropriation
bills heretofore. The amendment simply limits the appropriation. If
Congress has the right to appropriate, Congress, by the same token,
has the right to limit the appropriation.
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13. Wirt Courtney (Tenn.).
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Bulk Rates for Political Committees
Sec. 77.8 An amendment reducing an amount in a general appropriation
bill for the postal service and providing that no funds therein be
used to implement special bulk third-class rates for political
committees was held in order either as a negative limitation not
specifically requiring new determinations or as a retrenchment of
expenditures under the Holman rule even assuming its legislative
effect, since the reduction of the amount in the bill would
directly accomplish the legislative result.
On July 13, 1979,(14) during consideration in the
Committee of the Whole of H.R. 4393 (Treasury Department, Postal
Service, and general government appropriation bill) a point of order
against an amendment was overruled as indicated below:
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14. 125 Cong. Rec. 18453-55, 96th Cong. 1st Sess.
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The Chairman: (15) The Clerk will read.
---------------------------------------------------------------------------
15. Richardson Preyer (N.C.).
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The Clerk read as follows:
For payment to the Postal Service Fund for public service
costs and for revenue foregone on free and reduced rate mail,
pursuant to 39 U.S.C. 2401 (b) and (c), and for meeting the
liabilities of the former Post Office Department to the
Employees' Compensation Fund and to postal employees for earned
and unused annual leave as of June 30, 1971, pursuant to 39
U.S.C. 2004, $1,697,558,000.
[[Page 6483]]
Mr. [Dan] Glickman [of Kansas]: Mr. Chairman, I offer an
amendment.
The Clerk read as follows:
Amendment offered by Mr. Glickman: On page 9, line 3,
delete ``$1,697,558,000.'' and insert in lieu thereof
``$1,672,810,000: Provided That no funds appropriated herein
shall be available for implementing special bulk third-class
rates for `qualified political committees' authorized by Public
Law 95-593.''. . .
Mr. [Robert C.] Eckhardt [of Texas]: My point of order [which
had previously been reserved] is that the amendment places a burden
on the Postal Department which would not exist but for this
amendment. . . . [I]f the amendment is passed, it does not merely
withhold funds, but it requires the Postal Department to adjust the
rates of the Postal Department in order to comply with the
limitation contained in this amendment. Therefore, this is not a
mere limitation on an appropriation but it is a limitation which
requires the Postal Department, as the gentleman has stated in his
letter, to adjust all rates, determine which rates need
adjustments, which ones qualify or would not qualify under the
provision, and, thus, reduce those rates to the figures that would
permit the reduction in revenue. Therefore, it seems clear to me
that this affords an extremely heavy burden on the Postal
Department which would not otherwise exist but for the passage of
the amendment. If this were not true, the situation would create an
anomalous condition which I had pointed out in my initial question
to the gentleman in the well and the author of the amendment. It
would create a situation in which the benefits provided under
section 3626 of title 39 would still be enjoyed by qualifying
political committees, and yet the Postal Department would not be
able to receive the adjustment due to the additional costs. It
seems to me that in effect if the gentleman is correct and if
adjustments are made in the rate, there is another change in
substantive law occasioned by the adjustment in rates. That is, the
adjustment in rates substantively changes Public Law 95-593 so as
to deprive qualified political committees, including the Democratic
Committee and the Republican Committee, and all others that
qualify, of the benefits that we have enacted in another piece of
legislation, not one that deals with the Postal Department but
deals generally with the rates of political parties with respect to
the use of the mails.
Mr. Glickman: . . . The amendment is strictly one of
limitation. It reduces funding by $25 million and limits the use of
that funding with respect to the charging of postal rates. I would
state for the gentleman and for the Chair that section 3627 of
title 39, United States Code is discretionary authority to adjust
rates if the appropriation fails and is not mandatory authority
and, therefore, I do believe that the amendment is merely a
limitation and is germane. . . .
The Chairman: The Chair is prepared to rule on the point of
order.
In the opinion of the Chair, the amendment constitutes a
negative limitation on how funds in the bill are spent rather than
being legislation on an appopriations bill. No new determinations
are required. Even if the amendment should be considered as
constituting legislation, it constitutes a retrenchment because it
cuts the
[[Page 6484]]
amounts in the bills and the legislative effect directly
contributes to that reduction.
The Chair, therefore, overrules the point of order.
No Funds to Administer Customs Service Reductions
Sec. 77.9 While a limitation on a general appropriation bill may not
involve changes of existing law or affirmatively restrict executive
discretion, it may by a simple denial of the use of funds change
administrative policy and be in order; thus, a point of order
against a provision prohibiting the use of funds for any reduction
in Customs Service regions or for any consolidation of Customs
Service offices was overruled.
On June 27, 1984,(16) during consideration in the
Committee of the Whole of the Treasury Department and Postal
Service appropriation bill (H.R. 5798), a point of order against a
provision in the bill was overruled, as follows:
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16. 130 Cong. Rec. ----, 98th Cong. 2d Sess.
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The Clerk read as follows:
Sec. 617. None of the funds made available in this Act may
be used to plan, implement, or administer (1) any reduction in
the number of regions, districts or entry processing locations
of the United States Customs Service; or (2) any consolidation
or centralization of duty assessment or appraisement functions
of any offices of the United States Customs Service.
Mr. [Bill] Frenzel [of Minnesota]: Mr. Chairman, I make a point
of order against section 617. . . .
. . . Section 617 prohibits the use of funds in this
appropriation for a reduction in the number of Customs entry
processing points and any consolidation of duty assessment or
appraisement functions in any of the offices of the Customs
Service.
This negates Public Law 91-271 which gives the President the
authority to rearrange or make consolidations at points of entry at
the District Offices or at headquarters.
In addition, in my judgment the language is so broad as to
interfere with existing administrative authority to carry out its
appraisement functions as required by law. Section 617 goes beyond
the limitation of funds which are the subject of this appropriation
and constitutes an effort to change existing law under the guise of
a limitation. There seems to be in section 617 almost a complete
prohibition of executive discretion to make any changes to help the
Customs Service carry out its duties. . . .
Mr. [Edward R.] Roybal [of California] Mr. Chairman, section
617 is a simple limitation again on an appropriation bill. It does
not change the application of existing law. It merely prohibits the
use of funds to pay for any Government employee who tries to
prevent the law from being enforced. . . .
The Chairman: (17) The Chair is prepared to rule.
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17. Anthony C. Beilenson (Calif.).
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[[Page 6485]]
It is the opinion of the Chair that the section does not
mandate spending but rather limits the use of funds to consolidate
Customs regions and is as such a negative limitation on the use of
funds. And the Chair would cite Mr. Cannons volume 7 of Precedents,
section 1694:
While a limitation may not involve change of existing law
or affirmatively restrict executive discretion, it may properly
effect a change of administrative policy and still be in
order.(18)
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18. 7 Cannon's Precedents Sec. 1694 is discussed in Sec. 51, supra.
---------------------------------------------------------------------------
Therefore it is the ruling of the Chair that the gentleman's
point of order is overruled.
Parliamentarian's Note: This precedent must be distinguished from
cases where an amendment, by double negative or otherwise, can be
interpreted to require the spending of more money--for example, an
amendment prohibiting the use of funds to keep less than a certain
number of people employed. (A ``floor'' on employment levels would be
tantamount to an affirmative direction to hire no fewer than a
specified number of employees.)
Enforcement of Internal Revenue Service Policies
Sec. 77.10 An amendment to a general appropriation bill prohibiting the
use of funds therein to carry out any ruling of the Internal
Revenue Service which rules that taxpayers are not entitled to
certain charitable deductions was held in order as a limitation,
since the amendment was merely descriptive of an existing ruling
already promulgated by that agency and did not require new
determinations as to the applicability of the limitation to other
categories of taxpayers.
On July 16, 1979,(19) during consideration in the
Committee of the Whole of H.R. 4393 (Treasury Department, Postal
Service, and general government appropriation bill), a point of order
against an amendment was overruled, as follows:
---------------------------------------------------------------------------
19. 125 Cong. Rec. 18808-10, 96th Cong. 1st Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
Amendment offered by Mr. [Robert K.] Dornan [of
California]: Page 39, after line 18, add the following new
section:
Sec. 613. None of the funds available under this Act may be
used to carry out any revenue ruling of the Internal Revenue
Service which rules that a taxpayer is not entitled to a
charitable deduction for general purpose contributions which
are used for educational purposes by a religious organization
which is an exempt organization as described in section
170(c)(2) of the Internal Revenue Code of 1954. . . .
[[Page 6486]]
Mr. [Tom] Steed [of Oklahoma]: Mr. Chairman, I want to insist
upon my point of order.
Regardless of the merit of the subject matter here, this
obviously is not a limitation on an appropriation. It is evident by
the author's own statement that many things will be involved if
this amendment is adopted, that would be forced upon the agency,
that are not otherwise involved. It is in direct violation of
clause 2, rule XXI, because it does create legislative action.
This is obviously a matter that only the legislative committee
can cope with, and so because it is a violation of that rule I
insist that the point of order be sustained. . . .
Mr. Dornan: . . . I can assure the gentleman from Oklahoma (Mr.
Steed) that I checked out this amendment with the Parliamentarian's
Office, and I was told that the amendment was in order as a
limitation on an appropriations bill. There is no additional burden
imposed on Federal executive offices. IRS officials already perform
the simple ministerial requirement of analyzing our tax returns.
The amendment is negative in nature. It shows retrenchment on its
face. It is germane. Nevertheless, for the benefit of the
gentleman, if he desires, I will read some relevant excerpts from
Cannon's Precedents which demonstrate that the amendment is in
order. . . .
. . . [I]n section 1515:
An amendment prohibiting payment of fees to officials under
certain contingencies was held to retrench expenditures and to
come within the exception to the rule against admission of
legislation on appropriation bills. . . .
Section 1491:
If the obvious effect of an amendment is to reduce
expenditures, it is not necessary that it provide for such
reduction in definite terms and amount in order to come within
the exception.
Section 1493, and I will conclude with this one--
A cessation of Government activities was held to involve a
retrenchment of expenditures. . . .
Mr. [Robert C.] Eckhardt [of Texas]: Mr. Chairman, this
amendment obviously adds a burden to the IRS to establish a
different standard from that which would be applicable under
existing law. If it did not, the amendment would be of no effect.
What is attempted to be done here is to provide a different rule of
law and impose that on the IRS by what is called a retrenchment in
an appropriations bill. If this may be done in the name of
retrenchment of expenditures, then any law of this Nation may be
changed. Funds may not be permitted to go to any agency which makes
a determination of an administrative sort unless that determination
is different from that which the law would permit to apply under
the circumstances. . . .
The Chairman: (20) The Chair is prepared to rule on
the point of order. The Chair is of the opinion that retrenchment
precedents under the Holman rule do not apply in this situation
since no certain reduction in funds is involved. The Chair is of
the opinion that there are no precedents directly in point and the
Chair is not aware that the gentleman has sought the advice of the
Chair's advisers on this particular amendment but on a somewhat
similar amendment.
---------------------------------------------------------------------------
20. Richardson Preyer (N.C.).
---------------------------------------------------------------------------
The Chair is of the opinion that what is involved in the
amendment is
[[Page 6487]]
a particular ruling which applied to a single case and that,
therefore, no new determination has to be made by the IRS. It does
not require the IRS to make new rulings or determinations. The
amendment does not describe a situation where the IRS must look at
every religious contribution to determine if it applies. The
amendment is somewhat analogous to that in Deschler's (Procedure),
chapter 25, section 10.16, which was held in order.
Therefore, the Chair thinks the amendment is in order, and the
point of order is overruled.
Parliamentarian's Note: Rulings such as that cited above would now
be affected by Rule XXI clause 5(b),(21) which provides:
---------------------------------------------------------------------------
21. House Rules and Manual Sec. 846b (1985).
---------------------------------------------------------------------------
No bill or joint resolution carrying a tax or tariff measure
shall be reported by any committee not having jurisdiction to
report tax and tariff measures, nor shall an amendment in the House
or proposed by the Senate carrying a tax or tariff measure be in
order during the consideration of a bill or joint resolution
reported by a committee not having that jurisdiction. A question of
order on a tax or tariff measure in any such bill, joint
resolution, or amendment thereto may be raised at any time.
An otherwise valid limitation on the use of funds contained in a
general appropriation bill may be held to violate this clause where it
is shown that the imposition of the restriction on Internal Revenue
Service funding for the fiscal year would effectively and inevitably
preclude the IRS from collecting revenues otherwise due and owing by
law or require collection of revenue not legally due or owing. See, for
example, the ruling of Aug. 1, 1986, during consideration of H.R. 5294,
Treasury Department and Postal Service appropriation bill for fiscal
1987.
Sec. 77.11 The Chair held that an amendment to a general appropriation
bill denying the use of funds therein for the Internal Revenue
Service to carry out certain published tax procedures did not
impose new duties or determinations on the executive branch and did
not constitute legislation.
In a ruling on Aug. 19, 1980,(1) the Chair indicated
that it is in order on a general appropriation bill to deny the use of
funds to carry out an existing regulation, and the fact that the
regulation for which funds are denied may have been promulgated
pursuant to court order and pursuant to constitutional provisions is an
argument on the merits of the amendment and does not render it
legislative in nature. The pro
[[Page 6488]]
ceedings are discussed in Sec. 64.28, supra.
---------------------------------------------------------------------------
1. 126 Cong. Rec. 21981, 21983, 21984, 96th Cong. 2d Sess.
---------------------------------------------------------------------------
Regulations as to Sureties on Customs Bonds
Sec. 77.12 Language in a general appropriation bill prohibiting the use
of funds therein to eliminate an existing legal requirement for
sureties on customs bonds was held in order as a valid limitation
merely denying funds to change existing law and regulations.
The Chair held on June 27, 1984,(2) that, while an
agency may have authority to promulgate new regulations which would
change existing regulations, it is in order in a general appropriation
bill to deny the use of funds therein for agency proceedings relating
to changes in regulations. The proceedings are discussed in Sec. 51.16,
supra.
---------------------------------------------------------------------------
2. 130 Cong. Rec. ----, 98th Cong. 2d Sess.
---------------------------------------------------------------------------
Excepting Certain Political Committees From Limitation Affecting Mail
Rates
Sec. 77.13 To an amendment to a general appropriation bill limiting the
use of funds for the Postal Service to implement special mail rates
for qualified political committees as authorized by law, an
amendment lessening the amount of the reduction of funds in the
original amendment and also excepting from the limitation certain
congressional political committees as defined in law was held in
order either as an exception from a valid limitation which did not
add legislation (since the determinations as to which political
committees fit those descriptions were already required by law of
the Postal Service) or as perfecting a retrenchment amendment while
still reducing funds in the bill.
The ruling of the Chair on July 13, 1979,(3) as that to
an amendment retrenching expenditures in a general appropriation bill
by reducing amounts therein and prohibiting their availability to
particular recipients, an amendment lessening the amount of the
reduction and also providing an exception from the limitation may be in
order as a perfection of the retrenchment if funds contained in the
bill remain reduced thereby. The proceedings are discussed in Sec. 4.8,
supra.
---------------------------------------------------------------------------
3. 125 Cong. Rec. 18456, 18457, 96th Cong. 1st Sess.
---------------------------------------------------------------------------
[[Page 6489]]
CHAPTER 26
Unauthorized Appropriations; Legislation on Appropriation Bills
F. PERMISSIBLE LIMITATIONS ON USE OF FUNDS
Sec. 78. Veterans' Administration
Service-connected Dental Assistance
Sec. Sec. 78.1 To an appropriation bill, an amendment providing that no
part of an appropriation for the Veterans' Administration shall be
available for dental treatment, under specified conditions, was
held in order as a limitation.
On Mar. 31, 1954,(4) the Committee of the Whole was
considering H.R. 8583, an independent offices appropriation bill. A
point of order was raised against an amendment and overruled as
indicated below:
---------------------------------------------------------------------------
4. 100 Cong. Rec. 4262, 4263, 83d Cong. 2d Sess.
---------------------------------------------------------------------------
Amendment offered by Mr. [John] Phillips [of California]: On
page 47, line 11, after ``$76,744,000'', insert ``Provided, That no
part of this appropriation shall be available for outpatient dental
services and treatment, or related dental appliances with respect
to a service-connected dental disability which is not compensable
in degree where such condition or disability is not shown to have
been in existence at time of discharge and application for
treatment is made within 1 year after discharge or by July 27,
1954, whichever is later.
Mr. [James P.] Sutton [of Tennessee]: Mr. Chairman, I make the
point of order against the amendment that it is legislation on an
appropriation bill; furthermore, that it changes existing law.
The Chairman: (5) Does the gentleman from California
desire to be heard?
---------------------------------------------------------------------------
5. Louis E. Graham (Pa.).
---------------------------------------------------------------------------
Mr. Phillips: This is strictly a limitation under the rules. It
saves money.
Mr. Sutton: Mr. Chairman, that is a matter of opinion.
Furthermore, might I say that even if it were not a limitation on
an appropriation, it imposes additional duties.
The Chairman: The Chair is of the opinion that it is a
limitation. The Chair overrules the point of order.
Medical Care for Nonveterans
Sec. 78.2 An amendment providing that ``no part of this appropriation
can be used for hospitalization or examination of persons other
than veterans, unless a reciprocal schedule of pay is in effect
with the agency or department involved'' was held to be a proper
limitation restricting the availability of funds and in order on a
general appropriation bill.
On Jan. 18, 1940,(6) the Committee of the Whole was
considering H.R. 7922, an independent offices appropriation. An amend
[[Page 6490]]
ment was offered and a point of order against it was overruled as
indicated below:
---------------------------------------------------------------------------
6. 86 Cong. Rec. 509-11, 76th Cong. 3d Sess.
---------------------------------------------------------------------------
Amendment offered by Mr. [James E.] Van Zandt [of
Pennsylvania]: On page 77, line 6, after the period, insert:
``Provided further, That no part of this appropriation can be used
for hospitalization or examination of persons other than veterans,
unless a reciprocal schedule of pay is in effect with the agency or
department involved.''
[Mr. James M. Fitzpatrick, of New York, reserved a point of
order.]
Mr. Van Zandt: During the general debate on this bill, I called
to the attention of the gentleman from Virginia [Mr. Woodrum] the
fact that the employees of several Federal agencies, including the
Civilian Conservation Corps, the Works Progress Administration, the
Post Office Department, the Civil Service Commission, and the
Unemployment Compensation Commission, also beneficiaries of the
Railroad Retirement Board, are being examined by the medical staffs
of the Veterans' Administration facilities scattered throughout the
country. In many cases the employees of these Federal agencies are
hospitalized and spend many weeks in veterans' facilities. I
further pointed out at that time that all of the agencies referred
to reimburse the Veterans' Administration at the rate of $3.75 a
day for each person receiving medical service, with the exception
of the Post Office Department, the Civil Service Commission, and
the Unemployment Compensation Commission. These three agencies
enjoy a special privilege that is charged to the expenses chalked
up for the veterans of our wars. Since that discussion of this
subject on the floor of this House, I have made special inquiry
into this entire matter and I find that the position I took at that
time was sound and correct in every detail.
[The point of order having been made, the ruling thereon was as
follows:]
The Chairman: (7) The gentleman from New York has
made a point of order against the amendment offered by the
gentleman from Pennsylvania.
---------------------------------------------------------------------------
7. Lindsay C. Warren (N.C.).
---------------------------------------------------------------------------
The Chair is of the opinion that the amendment is in the nature
of a limitation, and therefore, overrules the point of order.
Area and Regional Offices
Sec. 78.3 Language in an appropriation bill providing that ``no part of
this appropriation [for the Veterans' Administration] may be used
for expenses of any area medical or regional representative
offices'' was held to be a limitation and in order.
On May 11, 1965,(8) the Committee of the Whole was
considering H.R. 7997, an independent offices appropriation bill. A
point of order against the following provision in the bill was
overruled:
---------------------------------------------------------------------------
8. 111 Cong. Rec. 10168, 89th Cong. 1st Sess.
---------------------------------------------------------------------------
For expenses necessary for administration of the medical,
hospital, domi
[[Page 6491]]
ciliary, construction and supply, research, employee education and
training activities, as authorized by law, $12,596,000: Provided,
That no part of this appropriation may be used for expenses of any
area medical or regional representative offices.
Mr. [John P.] Saylor [of Pennsylvania]: Mr. Chairman, I make a
point of order against the language on page 40, line 8, beginning
with the word ``Provided'' through line 10, as being legislation on
an appropriation bill.
The Chairman: (9) Does the gentleman from Texas
desire to be heard on the point of order?
---------------------------------------------------------------------------
9. Richard Bolling (Mo.).
---------------------------------------------------------------------------
Mr. [Albert] Thomas [of Texas]: Mr. Chairman, that is purely a
limitation on the use of funds. We cannot admit that point of
order.
The Chairman: . . . The language is clearly a limitation on the
use of funds. The point of order is overruled.
CHAPTER 26
Unauthorized Appropriations; Legislation on Appropriation Bills
F. PERMISSIBLE LIMITATIONS ON USE OF FUNDS
Sec. 79. Other Uses
Attorney General's Authority
Sec. 79.1 To a title in a general appropriation bill for the Department
of Justice, an amendment providing that ``none of the funds
appropriated by this title may be used in the preparation or
prosecution of any suit or proceeding in any court by or on behalf
of the United States (1) against a State of the Union; or (2)
against in excess of twenty-five hundred defendants'' was held to
be a proper limitation restricting the availability of funds and in
order.
On Apr. 4, 1952,(10) the Committee of the Whole was
considering H.R. 7289. The following proceedings took place:
---------------------------------------------------------------------------
10. 98 Cong. Rec. 3555, 82d Cong. 2d Sess.
---------------------------------------------------------------------------
Amendment offered by Mr. [Samuel W.] Yorty [of California]: On
page 29, after line 4, insert the following: ``Sec. 207. None of
the funds appropriated by this title may be used in the preparation
or prosecution of any suit or proceeding in any court by or on
behalf of the United States (1) against a State of the Union; or
(2) against in excess of twenty-five hundred defendants.''
Mr. [Emanuel] Celler [of New York]: Mr. Chairman, I make a
point of order against the amendment on the ground that it is
legislation grafted on an appropriation bill, and therefore utterly
inappropriate. . . . I maintain that that is a restriction on the
authority of the officials of the Attorney General and has no place
in an appropriation bill. It is [not] the usual limitation upon
monies to be expended. It is definitely legislation. . . .
The Chairman: (11) the Chair is ready to rule. The
point of order is made against the amendment on the ground that it
is legislation on an appropriation bill. The Chair has had an
opportunity to read and analyze the amendment offered by the
gentleman from California at page 29, after line 4, inserting the
language which has been
[[Page 6492]]
read. The Chair is of the opinion that the language of the
amendment merely places a negative limitation upon the
appropriation and is not a restriction upon discretion of
officials. Therefore, the amendment does not constitute legislation
and the point of order is overruled.
---------------------------------------------------------------------------
11. Oren Harris (Ark.).
---------------------------------------------------------------------------
Congressional Expenditures
Sec. 79.2 To a legislative appropriation bill, an amendment providing
that expenditures for committees of Congress or under the Architect
of the Capitol shall be limited to such as are of public record and
open for public inspection was held to be a proper limitation on
funds in the bill merely descriptive of access procedures pursuant
to existing law.
On Apr. 10, 1964,(12) the Committee of the Whole was
considering H.R. 10723. A point of order against the following
amendment was overruled, as indicated below:
---------------------------------------------------------------------------
12. 110 Cong. Rec. 7642, 7643, 88th Cong. 2d Sess.
---------------------------------------------------------------------------
Amendment offered by Mr. Oliver P. Bolton [of Ohio]: On page
26, after line 22, insert the following:
``Sec. 105. The expenditure of any appropriation under this Act
by any committee of the Congress or by the Architect of the Capitol
shall be limited to those committees and to those funds and
contracts supervised by the Architect of the Capitol where such
expenditures are a matter of public record and available for public
inspection.''
Mr. [Thomas J.] Steed [of Oklahoma]: Mr. Chairman, I make a
point of order against the amendment, but will reserve the point of
order so the gentleman from Ohio may explain it. . . .
The Chairman: (13) Does the gentleman from Oklahoma
insist on his point of order?
---------------------------------------------------------------------------
13. Clark W. Thompson (Tex.).
---------------------------------------------------------------------------
Mr. Steed: Mr. Chairman, in regard to the point of order. . . .
The 1950 act relating to audits by the General Accounting
Office is quite specific as to what auditing shall be done in
regard to the legislative and judicial branches of the Government.
Where it is mandatory for the executive branch activities, it is
subject to agreement as to on-site audits in the legislative and
judicial branches.
It seems to me any action we take here today on this
appropriation bill which affects that would be in effect
legislating--even though it may be called a limitation in an
appropriation bill. It would be a policy change--one which ought to
be considered by a committee in the regular way. . . .
Mr. Oliver P. Bolton: It is my error, Mr. Chairman, I apologize
for not showing you the substitute. The substitute does not contain
any reference to the General Accounting Office. It is a pure
limitation upon the use of funds appropriated in this act to these
committees and to the Architect of the Capitol only where their
records are a matter of public record. . . .
[[Page 6493]]
The Chairman: The Chair is prepared to rule.
The amendment reads very clearly that the expenditures are
under this act--and it is those expenditures that are limited.
The Chair therefore believes it is a limitation on an
appropriation bill and the Chair overrules the point of order.
Persons Claiming Executive Privilege or Holding Two Offices
Sec. 79.3 An amendment prohibiting the compensation of certain persons
from funds in an appropriation bill and describing the persons to
whom the restriction applied was held in order as a limitation on
the use of the funds where it did not directly curtail the
discretionary authority of executive officials or impose
affirmative duties upon them.
On June 22, 1972,(14) during consideration in the
Committee of the Whole of a general appropriation bill (H.R. 15585), a
point of order was raised against the following amendment:
---------------------------------------------------------------------------
14. 118 Cong. Rec. 22102, 92d Cong. 2d Sess.
---------------------------------------------------------------------------
Mr. [William S.] Moorhead [of Pennsylvania]: Mr. Chairman, I
offer an amendment.
The Clerk read as follows:
Amendment offered by Mr. Moorhead: Page 38 insert between
line 6 and line 7 new section:
``No part of the appropriations made by this Act shall be
expended for the Compensation of any person other than those
designated by the President, not to exceed ten persons employed
in the White House Office, who refuses to appear before any
committee of the Congress solely on the grounds of `executive
privilege'; nor shall any part of the appropriations made by
this Act be expended to compensate any employee of the
Executive Office of the President who is employed in or
designated as holding two positions in such Office.''
Mr. [Frank T.] Bow [of Ohio]: Mr. Chairman, I make a point of
order against the amendment.
The Chairman: (15) The gentleman will state his
point of order.
---------------------------------------------------------------------------
15. William S. Monagan (Conn.).
---------------------------------------------------------------------------
Mr. Bow: Mr. Chairman, this is an attempt to have a limitation.
We find the purpose is legislative, in that it is the intent to
restrict the executive direction, and can be fairly termed a change
in policy rather than a matter of administration detail. We believe
that the point of order should be sustained.
This is an attempt to cut down the number of people who can
claim executive privilege. In addition to that, it refers to those
who fail to appear upon the request of a committee.
I submit that such an amendment violates not only the spirit of
legislation passed but also the Constitution, and the limitation is
legislation and not a limitation. . . .
Mr. Moorhead: . . . Mr. Chairman, I believe that this amendment
is in order. It is a limitation on an appro
[[Page 6494]]
priation. It is not legislation. It does not require any action by
anyone. The President is not required to name 10 people. He is not
required to do anything under this amendment. Therefore, it is no
legislative action; it is merely a limitation.
The Chairman: Does the chairman of the subcommittee [Mr. Steed]
desire to be heard on the point of order?
Mr. [Thomas J.] Steed [of Oklahoma]: Yes, Mr. Chairman.
A further reason for the fact that this is subject to a point
of order is that the amendment says:
Nor shall any part of the appropriations made by this Act
be expended to compensate any employee of the Executive Office
of the President who is employed in or designated as holding
two positions in such Office.
Mr. Chairman, this has been going on. This part of the
amendment changes existing policy. It is clearly legislation in an
appropriation bill.
Mr. Bow: Mr. Chairman, may I be heard further?
In addition to the points I made originally, this creates
additional duties. The President would have to designate the people
who are limited under this act.
I submit both from the standpoint of legislation and additional
duties on the Executive it is subject to a point of order.
The Chairman: The Chair is ready to rule. . . .
Reading the amendment, it provides that no part of the
appropriations made by this Act shall be expended for the
compensation of certain persons. In other words, the amendment
contains descriptions of the persons whose compensation shall be
limited: One who refuses to appear before any committee of the
Congress and also any employee who in fact is holding two
positions.
The Chair does not feel it is incumbent on the Chair to
consider the desirability of the language offered. The amendment
does not require any additional duties, nor does it affirmatively
change policy, and therefore the Chair feels that these are solid
limitations on the use of funds in the bill. Such provisions are
not legislation on an appropriation bill, so the Chair overrules
the point of order.
Presidential Emergency Funds
Sec. 79.4 To a bill appropriating emergency funds for the President, an
amendment providing that none of the funds appropriated in the bill
shall be spent ``in violation of the provisions of section 209'' of
the bill was held to be a limitation restricting the availability
of funds and in order.
On May 25, 1959,(16) the Committee of the Whole was
considering H.R. 7176, a general government matters appropriation bill.
A point of order was raised against the following amendment:
---------------------------------------------------------------------------
16. 105 Cong. Rec. 9012, 86th Cong. 1st Sess.
---------------------------------------------------------------------------
Amendment offered by Mr. [Charles A.] Vanik [of Ohio]: Page 5,
line 10,
[[Page 6495]]
strike out the period, insert a colon, and add the following:
``Provided, That none of the funds appropriated in this Act shall
be spent in violation of the provisions of section 209.''
Mr. [George W.] Andrews [of Alabama]: Mr. Chairman, I make a
point of order against the amendment on the ground that it is
legislation on an appropriation bill.
The Chairman: (17) Does the gentleman from Ohio
desire to be heard on the point of order?
---------------------------------------------------------------------------
17. Carl Albert (Okla.).
---------------------------------------------------------------------------
Mr. Vanik: No, Mr. Chairman.
The Chairman: The Chair is prepared to rule.
The language of the amendment offered by the gentleman from
Ohio specifically places a limitation upon the use of funds
appropriated in this act. It is, therefore, a limitation and is not
subject to a point of order.
The Chair overrules the point of order.(18)
---------------------------------------------------------------------------
18. Parliamentarian's Note: Section 209 of the bill provided that no
part of any appropriation contained in the Act, ``or of the
funds available for expenditure by any individual, corporation,
or agency included in [the] Act,'' be used for publicity or
propaganda purposes designed to support or defeat legislation
pending before Congress. While Sec. 209 might itself have been
legislation since not confined to funds in the bill, the
amendment offered in this instance was properly restricted to
funds in the bill.
---------------------------------------------------------------------------
Printing Silver Certificates
Sec. 79.5 To a paragraph in an appropriation bill making money
available for the purchase of distinctive paper for U.S.
securities, an amendment providing that no funds appropriated shall
be used for the printing of silver certificates or the purchase of
paper therefor was held to be a proper limitation and in order.
On Apr. 28, 1937,(19) the Committee of the Whole was
considering H.R. 6730, a deficiency appropriation bill. An amendment
was offered and ruled on as follows:
---------------------------------------------------------------------------
19. 81 Cong. Rec. 3919, 75th Cong. 1st Sess.
---------------------------------------------------------------------------
Distinctive paper for United States securities: For an
additional amount for distinctive paper for United States currency
and Federal Reserve bank currency, fiscal year 1937, including the
same objects specified under this head in the Treasury Department
Appropriation Act, 1937, $126,600.
Mr. [John] Taber [of New York]: Mr. Chairman, I offer an
amendment.
The Clerk read as follows:
Amendment offered by Mr. Taber: On page 31, line 24, after
the figures ``$126,000'', strike out the period insert a comma
and the following: ``Provided, however, That no funds
appropriated in this act shall be used for the printing of
silver certificates or the purchase of paper therefor.''
Mr. [Clifton A.] Woodrum [of Virginia]: Mr. Chairman, a point
of order. I think the amendment is subject to a
[[Page 6496]]
point of order. There is nothing provided here for the printing of
silver certificates. The basic law covers that. This is to provide
for the purchase of paper for currency. . . .
Mr. Taber: Mr. Chairman, this is a clear limitation under the
Holman rule. It is a clear limitation that is entirely germane,
preventing the use of funds carried in this act for the purpose of
buying paper or printing silver certificates. Silver certificates
are printed and paper is bought for that purpose out of this
particular item. A limitation preventing the use of it for that
purpose is clearly in order.
The Chairman: (20) . . . The Chair is constrained to
hold that the amendment is a limitation upon the money appropriated
in the bill, and therefore overrules the point of order.
---------------------------------------------------------------------------
20. Fred M. Vinson (Ky.).
---------------------------------------------------------------------------
Readmission of Aliens
Sec. 79.6 An amendment to a general appropriation bill providing that
``No part of any appropriation [in the bill] for the Immigration
and Naturalization Service shall be expended for any expense
incident to any procedure by suggestion or otherwise, for the
admission to any foreign country of any alien unlawfully in the
United States for the purpose of endeavoring to secure a visa for
readmission to the United States, or for the salary of any employee
charged with any duty in connection with the readmission to the
United States of any such alien without visa'' was held to be a
proper limitation on an appropriation bill and in order.
On Feb. 18, 1938,(1) the Committee of the Whole was
considering H.R. 9544, an appropriation bill for the Departments of
State, Justice, Commerce, and Labor. The Clerk read as follows:
---------------------------------------------------------------------------
1. 83 Cong. Rec. 2174, 2175, 75th Cong. 3d Sess.
---------------------------------------------------------------------------
Amendment offered by Mr. [Malcolm C.] Tarver [of Georgia]: On
page 104, after line 25, insert a new paragraph, as follows:
``No part of any appropriation contained in this act for the
Immigration and Naturalization Service shall be expended for any
expense incident to any procedure by suggestion or otherwise, for
the admission to any foreign country of any alien unlawfully in the
United States for the purpose of endeavoring to secure a visa for
readmission to the United States, or for the salary of any employee
charged with any duty in connection with the readmission to the
United States of any such alien without visa.''
Mr. [Samuel] Dickstein [of New York]: Mr. Chairman, I make the
same point of order. This comes right back to the point I made
originally, that this provision deals with the present immigration
laws and is legislation on an appropriation bill. It changes our
present act, which contains the provi
[[Page 6497]]
sion that it is mandatory upon the officials of the Department of
Labor to advise an alien of his status, whether he is legally or
illegally in this country. This provision seems to suggest that
even a suggestion or an inference, even a suggestion over the
phone, would be a violation of the law, and the men who are on the
pay roll of the Government would be penalized. I respectfully
submit that the language offered as the amendment to the new
section is absolutely in the same category, and that it is not
germane to the present bill or to the section now under
consideration.
The Chairman: (2) The Chair is ready to rule.
---------------------------------------------------------------------------
2. Frank H. Buck (Calif.).
---------------------------------------------------------------------------
. . . The Chair feels he is bound by precedents which have
been established for a long time in this House and have been ruled
upon by many occupants of the chair more distinguished than he.
The fact that the failure to appropriate money to carry out the
purposes of an act may work an actual hardship in the enforcement
of that act or may even effect the practical repeal of certain
provisions of the act is entirely within the discretion of Congress
itself. Congress does not have to appropriate any money for laws
which have been authorized by bills reported from legislative
committees. As long ago as 1896 Nelson Dingley, Chairman of the
Committee of the Whole House, ruled as follows, and I read from
page 47 of Cannon's Procedure in the House of Representatives:
The House in Committee of the Whole House has the right to
refuse to appropriate for any object either in whole or in
part, even though that object may be authorized by law. That
principle of limitation has been sustained so repeatedly that
it may be regarded as a part of the parliamentary law of the
Committee of the Whole.
Therefore, the Chair is unable to agree with the contention of
the gentleman from New York and overrules the point of order.
Certain Proposed Regulations Not To Be Enforced
Sec. 79.7 To a proposition in an appropriation bill appropriating a
lump sum for salaries and other expenses of the Securities and
Exchange Commission, an amendment providing that no part of it
shall be used to promulgate or enforce certain rules or regulations
precisely described in the amendment was held to be a proper
limitation restricting the availability of funds and in order.
On Feb. 17, 1943,(3) the Committee of the Whole was
considering H.R. 1762, an independent offices appropriation bill. The
following amendment was held to be in order:
---------------------------------------------------------------------------
3. 89 Cong. Rec. 1070-72, 78th Cong. 1st Sess.
---------------------------------------------------------------------------
Amendment offered by Mr. [Wesley E.] Disney [of Oklahoma]: Page
48, line 3, insert a colon, and add the following:
[[Page 6498]]
``No part of this appropriation shall be used to promulgate or
enforce any rule or regulation known as the proposed rule or
regulation F-9 and F-10, and providing in substance (1) the
engineers' reports shall be mandatory, (2) require the disclosure
of the cost of purchase price, and (3) an abridgment of the right
to appoint an agent, all with reference to the sale of oil and gas
royalties and lease under the jurisdiction of the Oil and Gas
Division of the Securities and Exchange Commission.''. . .
Mr. [Clifton A.] Woodrum of Virginia: Mr. Chairman, I insist on
the point of order. . . .
I think the amendment is so indefinite it would be impossible
for the Chair or anyone else to know whether this is a limitation
on anything or what it limits. The gentleman says the funds herein
are not to be used for the purpose of enforcing certain orders
known as so-and-so and so-and-so. Even after listening to our
friend, to whom we always listen with pleasure and profit, those
wayfarers who, like myself, are not versed in the parlance of the
Securities and Exchange Commission are not able to determine what
the amendment means. . . .
Mr. Disney: I call the attention of the Chair to the fact that
this amendment puts a limitation on the use of the funds
appropriated.
The Chairman: (4) The Chair is ready to rule.
---------------------------------------------------------------------------
4. William M. Whittington (Miss.).
---------------------------------------------------------------------------
The appropriation under consideration involves $4,000,000 for
salaries and other expenses of the Securities and Exchange
Commission. A lump sum is thus appropriated. The practice has grown
up of undertaking to limit these lump-sum appropriations by
preventing expenditures for particular purposes. The amendment
offered by the gentleman from Oklahoma [Mr. Disney] undertakes to
limit this appropriation by providing that no part of this
appropriation shall be used to promulgate or enforce the three
rules and regulations mentioned in his amendment. The Chair holds
that the amendment constitutes a limitation and overrules the point
of order.
Tennessee Valley Authority Services
Sec. 79.8 To an appropriation bill, an amendment placing a limitation
on the amounts in the bill to be used for personal services in the
Tennessee Valley Authority was held to be a proper limitation and
in order.
On Mar. 21, 1952,(5) The Committee of the Whole was
considering H.R. 7072, an independent offices appropriation bill. An
amendment was offered to which a point of order was made and overruled,
as indicated below:
---------------------------------------------------------------------------
5. 98 Cong. Rec. 2674, 82d Cong. 2d Sess.
---------------------------------------------------------------------------
Amendment offered by Mr. [Kenneth B.] Keating [of New York]:
Page 35, line 24, strike out the period and insert a comma and add
the following: ``and not to exceed $99,131,125 of funds available
under this section shall be used for personal services.''
[[Page 6499]]
Mr. [Albert] Thomas [of Texas]: Mr. Chairman, a point of order.
The Chairman: (6) The gentleman will state it.
---------------------------------------------------------------------------
6. Wilbur D. Mills (Ark.).
---------------------------------------------------------------------------
Mr. Thomas: [The provision] is legislation on an appropriation
bill. It says ``funds available.'' There are two types of funds
available to the TVA--appropriated funds and its own revenues. . .
.
The Chairman: The Chair is ready to rule.
The Chair is of the opinion that the amendment refers only to
funds contained within this section of this bill and is merely a
negative limitation, which is in order. Therefore, the Chair
overrules the point of order.
State and Local Administration of Grants
Sec. 79.9 To a deficiency appropriation bill, an amendment placing a
limitation on the amount therein which ``may be used for State and
local administration'' of grants for public assistance was held to
be a proper limitation and in order.
On Feb. 5, 1957,(7) The Committee of the Whole was
considering H.R. 4249, a deficiency appropriation bill. The Clerk read
as follows:
---------------------------------------------------------------------------
7. 103 Cong. Rec. 1549, 85th Cong. 1st Sess.
---------------------------------------------------------------------------
Amendment offered by Mr. [Henderson L.] Lanham [of Georgia]:
Page 5, line 7, after ``$275,000,000,'' strike out the colon and
insert: ``Provided, That not more than $15,728,000 of this amount
may be used for State and local administration [of grants for
public assistance].''
Mrs. [Edith S.] Green of Oregon: Mr. Chairman, I make a point
of order against the amendment [on the ground that] it is
legislation on an appropriation bill.
Mr. Lanham: Mr. Chairman, may I be heard?
The Chairman: (8) The Chair will be glad to hear the
gentleman briefly.
---------------------------------------------------------------------------
8. Wilbur D. Mills (Ark.).
---------------------------------------------------------------------------
Mr. Lanham: Mr. Chairman, of course, this is a limitation on an
appropriation and it is in no sense legislation on an appropriation
bill.
The Chairman: The Chair has had an opportunity to examine the
language of the amendment offered by the gentleman from Georgia
[Mr. Lanham] and is of the opinion that the language constitutes a
proper limitation on the appropriation contained in the paragraph;
therefore, the language is in order and the Chair overrules the
point of order.
[[Page 6500]]
CHAPTER 26
Unauthorized Appropriations; Legislation on Appropriation Bills
G. LIMITATION ON TOTAL AMOUNT APPROPRIATED BY BILL
Sec. 80. Generally
Effect on Total Expenditures
Sec. 80.1 To an appropriation bill, an amendment providing that
appropriations in the bill shall be available for expenditure only
to the extent that expenditure thereof shall not result in total
expenditures of agencies provided for in the bill beyond a
specified amount was held to be in order as a limitation upon funds
in the bill.
On Mar. 21, 1952,(9) The Committee of the Whole was
considering H.R. 7072, an independent offices appropriation. An
amendment was offered to which a point of order was made and overruled,
as follows:
---------------------------------------------------------------------------
9. 98 Cong. Rec. 2694, 82d Cong. 2d Sess.
---------------------------------------------------------------------------
Amendment offered by Mr. [Frederic R.] Coudert [Jr., of New
York]: On page 64, after line 21, add a new section 405 as follows:
``Sec. 405. Money appropriated in this act shall be available
for expenditure in the fiscal year ending June 30, 1953, only to
the extent that expenditure thereof shall not result in total
aggregate expenditures of all agencies provided for herein beyond
the total sum of $6,900,000,000.''
Mr. [Albert] Thomas [of Texas]: Mr. Chairman, I make the point
of order against the amendment on the ground that it is legislation
on an appropriation bill. . . .
. . . It changes figures heretofore voted upon in the House in
the last 3 days. Therefore, that is legislation. It puts duties on
the various agencies not otherwise called for in the bill. . . .
Mr. Coudert: This clearly does not touch the funds of prior
years; therefore, it does not appropriate with respect to them. It
only places a limitation upon the use to which the funds requested
in this bill, the new obligational authority, may be put. It limits
the freedom of expenditure and nothing else.
The Chairman: (10) The Chair is ready to rule. . . .
---------------------------------------------------------------------------
10. Wilbur D. Mills (Ark.).
---------------------------------------------------------------------------
The Chair appreciates the fact that the author of the amendment
afforded the Chair an opportunity earlier in the day to read the
amendment and gave the Chair some time to study the language of the
amendment.
The Chair is of the opinion that the amendment is a limitation
upon the funds which are contained in the bill H.R. 7072, presently
before the Committee; that it is nothing more than a limitation on
those funds. The Chair is, therefore, constrained to overrule the
point of order and hold the amendment in order.
Parliamentarian's Note: A similar amendment had been ruled out of
order on Mar. 3, 1952, on
[[Page 6501]]
the ground that it affected appropriations not carried in the bill. See
98 Cong. Rec. 1781, 1782, 82d Cong. 2d Sess., discussed in Sec. Sec. 4
[the Holman rule] and 48.9 (conditions precedent to spending), supra.
Generally, amendments of this type are not, strictly speaking,
limitations if the committee report shows the amount stated in the
amendment to be less than the total covered by the bill; in such case,
the amendment would constitute a retrenchment and thus be governed by
the Holman rule.
Total Expenditure Ceiling
Sec. 80.2 To an appropriation bill, an amendment providing that ``Money
. . . in this bill shall be available for expenditure in the fiscal
year ending June 30, 1954, only to the extent that expenditures
thereof shall not result in total aggregate net expenditures of all
agencies provided for herein beyond the total of $5,500,000,000''
was held to be a proper limitation only restricting the
availability of funds in the bill and in order.
On July 22, 1953,(11) The Committee of the Whole was
considering H.R. 6391, a Mutual Security Administration appropriation
bill. The following proceedings took place:
---------------------------------------------------------------------------
11. 99 Cong. Rec. 9559, 83d Cong. 1st Sess.
---------------------------------------------------------------------------
Amendment offered by Mr. [Frederic R.] Coudert [Jr., of New
York]: On page 6, after line 1, insert a new section as follows:
``Money appropriated in this bill shall be available for
expenditure in the fiscal year ending June 30, 1954, only to the
extent that expenditures thereof shall not result in total
aggregate net expenditures of all agencies provided for herein
beyond the total of $5,500,000,000.''
Mr. [John] Taber [of New York]: Mr. Chairman, a point of order.
The Chairman: (12) The gentleman will state it.
---------------------------------------------------------------------------
12. Leo E. Allen (Ill.).
---------------------------------------------------------------------------
Mr. Taber: I make the point of order that the amendment imposes
additional duties to determine whether or not the expenditures of
all agencies provided for therein exceed $5,500,000,000.
The Chairman: Does the gentleman from New York desire to be
heard on the point of order?
Mr. Coudert: Yes, Mr. Chairman. Let me point out that this
amendment is in the very same language as the Smith amendment that
was adopted a year ago on the military appropriations bill.
The Chairman: The Chair believes that it is a proper limitation
and overrules the point of order.(13)
---------------------------------------------------------------------------
13. See also the discussion in Sec. 4 (the Holman rule) and 48.9-48.11]
(conditions precedent to spending), supra.
---------------------------------------------------------------------------
[[Page 6502]]
Ceiling by Reference to President's Budget
Sec. 80.3 An amendment to a general appropriation bill restricting the
availability for expenditure of all funds therein to the aggregate
level provided in the President's budget for that fiscal year for
the agencies covered in the bill was held to constitute a valid
limitation on the total amount covered by the bill.
On June 15, 1972,(14) During consideration in the
Committee of the Whole of the Departments of Labor, and Health,
Education, and Welfare appropriation bill for fiscal 1973 (H.R. 15417),
a point of order was raised against the following amendment:
---------------------------------------------------------------------------
14. 118 Cong. Rec. 21136, 21137, 92d Cong. 2d Sess.
---------------------------------------------------------------------------
Mr. [Paul] Findley [of Illinois]: Mr. Chairman, I offer an
amendment.
The Clerk read as follows:
Amendment offered by Mr. Findley: On page 40, after line 4,
insert the following new section:
``Sec. 409. Money appropriated in this Act shall be
available for expenditure in the fiscal year ending June 30,
1973, only to the extent that expenditure thereof shall not
result in total aggregate net expenditures of all agencies
provided for herein beyond 100 per centum of the total
aggregate net expenditures estimated therefor in the budget for
1973 (H. Doc. 215).''
Mr. [Daniel J.] Flood [of Pennsylvania]: Mr. Chairman, I make a
point of order against the amendment.
Mr. Chairman, this is legislation upon an appropriation bill--
period.
The Chairman: (15) Does the gentleman from Illinois
desire to be heard on the point of order?
---------------------------------------------------------------------------
15. Chet Holifield (Calif.).
---------------------------------------------------------------------------
Mr. Findley: Yes, Mr. Chairman.
Mr. Chairman, I would like to explain to the Chair that the
language of this amendment with the exception of the percentage
figure and the House document reference is identical to the so-
called Bow amendment which was offered on many occasions in past
years and which has been challenged on previous occasions and which
has been sustained being in order on an appropriation bill.
The Chairman: The Chair has examined the amendment and will
rule that it is in order. It is, in effect, the ``Bow'' amendment
with a very slight variation. It is a restriction on the
appropriations in this bill.
The point of order is overruled.
Ceiling Notwithstanding Appropriation
Sec. 80.4 An amendment to an appropriation bill providing that,
notwithstanding any other provisions carried in the bill for
printing and binding, the total amount to be expended for printing
and binding and related activities shall not exceed a specified
sum, was held to be a
[[Page 6503]]
proper limitation applying only to appropriations in the pending
bill.
On Mar. 27, 1942,(16) the Committee of the Whole was
considering H.R. 6845, an Interior Department appropriation. The
following proceedings took place:
---------------------------------------------------------------------------
16. 88 Cong. Rec. 3096, 77th Cong. 2d Sess.
---------------------------------------------------------------------------
Amendment offered by Mr. [Marvin] Jones [of Texas]: On page
141, after line 3, insert a new section, as follows:
``Notwithstanding any other provisions carried in this bill
for printing and binding the total amount to be expended for
printing, binding, duplicating, mimeographing, lithographing,
or reproduction in any other form or by any other device, and
including the purchase of reprints of scientific and technical
articles published in periodicals and journals shall not exceed
for every such purpose included in this bill the sum of
$450,000, and that the amounts estimated therefor and not
expended within this limitation shall be recovered into the
Treasury of the United States.''
Mr. [Jed] Johnson of Oklahoma: Mr. Chairman, I make the point
of order that this is legislation on an appropriation bill. . . .
The Chairman: (17) the Chair is prepared to rule.
---------------------------------------------------------------------------
17. Jere Cooper (Tenn.).
---------------------------------------------------------------------------
The Chair has examined the amendment offered by the gentleman
from Ohio. Although, as indicated by the gentleman from Oklahoma,
it does provide, ``notwithstanding any other provisions carried in
this bill,' it relates to appropriations in the pending bill.
The Chair is of the opinion that it is a limitation and is in
order. Therefore, the point of order is overruled.
Restriction on Obligations in Last Two Months of Fiscal Period
Sec. 80.5 An amendment to a general appropriation bill, providing that
no more than a certain percentage of funds therein for any agency
and apportioned to such agency by the Office of Management and
Budget pursuant to law, may be obligated during the last two months
of the fiscal year, was ruled out as legislation, where the
proponent of the amendment could not show that because it was not
in the form of a limitation permitted by the precedents which
negatively restricted the object, purpose, or amount of the
appropriation, it did not change existing law.
On July 28, 1980,(18) the Committee of the Whole having
under consideration the Housing and Urban Development and independent
agencies appropriation bill (H.R. 7631), an amendment
[[Page 6504]]
was offered and ruled upon as follows:
---------------------------------------------------------------------------
18. 126 Cong. Rec. 19924, 19925, 96th Cong. 2d Sess.
---------------------------------------------------------------------------
Mr. [Herbert E.] Harris [II, of Virginia]: Mr. Chairman, I
offer an amendment.
The Clerk read as follows:
Amendment offered by Mr. Harris: Page 45, after line 23, insert
the following:
Sec. 413. No more than an amount equal to 20 percent of the
total funds appropriated under this Act for any agency for any
fiscal year and apportioned to such agency pursuant to section
3679 of the Revised Statutes of the United States (31 U.S.C.
665) may be obligated during the last two months of such fiscal
year. . . .
The Chairman: (19) Does the gentleman from Indiana
(Mr. Myers) insist on his point of order?
---------------------------------------------------------------------------
19. Elliott H. Levitas (Ga.).
---------------------------------------------------------------------------
Mr. [John T.] Myers of Indiana: I do, Mr. Chairman.
Mr. Chairman, the gentleman has offered an amendment to limit
the appropriations to a specific time; but I respectfully suggest
that the fact the gentleman has added the words, ``No more than''
is still not, in fact, a limitation. . . .
Mr. Chairman, the fact that you are limiting here, not
directing, but limiting the authority to the last 2 months how much
may be spent takes away the discretionary authority of the
Executive which might be needed in this case. It clearly is more
than an administrative detail when you limit and you take away the
right of the Executive to use the funds prudently, to take
advantage of saving money for the Executive, which we all should be
interested in, and I certainly am, too; but Mr. Chairman, rule 843
provides that you cannot take away that discretionary authority of
the Executive.
This attempt in this amendment does take that discretionary
authority to save money, to wisely allocate money prudently and it
takes away, I think, authority that we rightfully should keep with
the Executive, that you can accumulate funds and spend them in the
last quarter if it is to the advantage of the taxpayer and the
Executive. . . .
Mr. Harris: . . . Mr. Chairman, let me first address the last
point, probably because it is the weakest that the gentleman has
made with respect to his point of order.
With respect to the discretion that we are in any way limiting
the President, we cannot limit the discretion which we have not
given the President directly through legislation. There is no
discretion with regard to legislation that we have overtly
legislated and given to the President.
Mr. Chairman, section 665(c)(3) of title 31 of the United
States Code, which states the following:
Any appropriation subject to apportionment shall be
distributed as may be deemed appropriate by the officers
designated in subsection (d) of this section to make
apportionments and reapportionments.
Clearly grants agency budget officers the discretionary
authority to apportion the funds in a manner they deem appropriate.
My amendment would not interfere with this authority to apportion
funds. On the contrary, my amendment reaffirms this section of the
United States Code, as Deschler's
[[Page 6505]]
Procedures, in the U.S. House of Representatives, chapter 26,
section 1.8, states:
The provision of the rule forbidding in any general
appropriation bill a ``provision changing existing law'' is
construed to mean the enactment of law where none exists, or a
proposition for repeal of existing law. Existing law may be
repeated verbatim in an appropriation bill, but the slightest
change of the text causes it to be ruled out.
My amendment, Mr. Chairman, as the Chair will note,
specifically restates by reference the existing law, which in no
way gives discretion as to spending, but gives discretion as to
apportionment.
Mr. Chairman, as the Chair knows, the budget execution cycle
has many steps. Whereas the Chair's earlier ruling related to the
executive branch authority to apportion, my amendment addresses the
obligation rate of funds appropriated under the fact. As OMB
circular No. A-34 (July 15, 1976) titled ``Budget Execution''
explains:
Apportionment is a distribution made by OMB.
Obligations are amounts of orders placed, contracts
awarded, services received, and similar transactions.
Mr. Chairman, my amendment proposes some additional duties, but
only a very minimal additional duty upon the executive branch.
Deschler's chapter 26, section 11.1 says:
The application of any limitation on an appropriation bill
places some minimal extra duties on Federal officials, who, if
nothing else, must determine whether a particular use of funds
falls within that prohibited by the limitation. . . .
The Chairman: . . . In the first instance, the Chair would
observe that it is not the duty of the Chair or the authority of
the Chair to rule on the wisdom or the legislative effect of
amendments.
Second, the Chair will observe that the gentleman from
Virginia, in the way in which his amendment has been drafted,
satisfies the requirements of the Apportionment Act, which was the
subject of a prior ruling of the Chair in connection with another
piece of legislation.
The Chair agrees with the basic characterization made by the
gentleman from Indiana that the precedents of the House relating to
limitations on general appropriation bills stand for the
proposition that a limitation to be in order must apply to a
specific purpose, or object, or amount of appropriation. The
doctrine of limitations on a general appropriation bill has emerged
over the years from rulings of Chairmen of the Committee of the
Whole, and is not stated in clause 2, rule XXI itself as an
exception from the prohibition against inclusion of provisions
which ``change existing law.'' Thus the Chair must be guided by the
most persuasive body of precedent made known to him in determining
whether the amendment offered by the gentleman from Virginia (Mr.
Harris) ``changes existing law.'' Under the precedents in
Deschler's Procedure, chapter 26, section 1.12, the proponent of an
amendment has the burden of proving that the amendment does not
change existing law.
The Chair feels that the basic question addressed by the point
of order is as follows: Does the absence in the precedents of the
House of any ruling
[[Page 6506]]
holding in order an amendment which attempts to restrict not the
purpose or object or amount of appropriation, but to limit the
timing of the availability of funds within the period otherwise
covered by the bill require the Chair to conclude that such an
amendment is not within the permissible class of amendments held in
order as limitations? The precedents require the Chair to strictly
interpret clause 2, rule XXI, and where language is susceptible to
more than one interpretation, it is incumbent upon proponent of the
language to show that it is not in violation of the rule
(Deschler's chapter 25, section 6.3).
In essence, the Chair is reluctant, based upon arguments
submitted to him, to expand the doctrine of limitations on general
appropriation bills to permit negative restrictions on the use of
funds which go beyond the amount, purpose, or object of an
appropriation, and the Chair therefore and accordingly sustains the
point of order.
President Given Authority to Make Reductions
Sec. 80.6 An amendment adding a new section to a general appropriation
bill authorizing the President to reduce each appropriation in the
bill by not more than 10 percent was conceded to be legislation
(conferring new authority on the President) and was ruled out in
violation of Rule XXI clause 2(c).
On May 31, 1984,(20) During consideration in the
Committee of the Whole of the Departments of State, Justice, and
Commerce appropriation bill (H.R. 5172), a point of order was sustained
against the following amendment:
---------------------------------------------------------------------------
20. 130 Cong. Rec. ----, 98th Cong. 2d Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
Amendment offered by Mr. [Robert S.] Walker [of
Pennsylvania]: On page 57, after line 3, insert the following
new section:
Sec. 611. Notwithstanding any other provision of this Act,
the President may reduce any appropriation in this Act by not
more than ten percent. . . .
Mr. [Neal] Smith of Iowa: Mr. Chairman, [the amendment]
proposes to change existing law and constitutes legislation on an
appropriation bill, and therefore it violates clause 2 of rule XXI.
. . .
Mr. Walker: . . . Mr. Chairman, this is the same language that
I offered yesterday which was debated in the House and which we did
consider in the House.
It does provide a mini-line item veto for the President. This
would end up reducing the amount of money in the bill by $1.1
billion.
But the gentleman from Iowa is correct that this does
constitute a violation of rule XXI, clause 2, and I concede the
point of order.
The Chairman: (1) The point of order is conceded,
and the Chair sustains the point of order.
---------------------------------------------------------------------------
1. George E. Brown, Jr. (Calif.).
---------------------------------------------------------------------------
[[Page 6507]]
Parliamentarian's Note: The proposed amendment would not have been
permitted under the Holman rule because the proposed reductions were
not certain on the face of the amendment as is required under the
Holman rule. A similar amendment offered by Mr. Walker on June 6,
1984,(2) as also conceded to be out of order.
---------------------------------------------------------------------------
2. 130 Cong. Rec. ---- , 98th Cong. 2d Sess.