Unauthorized Appropriations; Legislation on Appropriation Bills

A. INTRODUCTORY MATTERS § 1. Generally; Scope any expenditure not previously authorized by law, unless in continuation of A House rule prohibits the in- appropriations for such public works and objects as are already in progress. clusion in general appropriation Nor shall any provision in any such bills of ‘‘unauthorized’’ appropria- bill or amendment thereto changing tions, except for works in existing law be in order, except such as progress, and prohibits provisions being germane to the subject matter of ‘‘changing existing law,’’ usually the bill shall retrench expenditures by referred to as ‘‘legislation on an the reduction of the number and salary of the officers of the United States, by appropriation bill,’’ except for pro- the reduction of the compensation of visions that retrench expenditures any person paid out of the Treasury of under certain prescribed condi- the United States, or by the reduction tions.(1) of amounts of money covered by the The statement of the rule under bill.... which most of the precedents in On Jan. 3, 1981, the 98th Con- this chapter were decided is as gress restructured and amended follows: (2) the clause as follows: paragraph No appropriation shall be reported in (a) retained the prohibition any general appropriation bill, or be in against unauthorized appropria- order as an amendment thereto, for tions in general appropriation bills and amendments thereto ex- 1. Rule XXI clause 2, House Rules and Manual § 834 (1985). The ‘‘retrench- cept in continuation of works in ment’’ provision is known as the Hol- progress; paragraph (b) narrowed man rule, and is discussed in §§ 4, 5, the ‘‘Holman Rule’’ exception from infra. the prohibition against legislation 2. See Rule XXI clause 2, House Rules to cover only retrenchments re- and Manual § 834 (1973). This chap- ducing amounts of money included ter discusses significant recent rul- in the bill as reported, and per- ings through 1984. For earlier treat- ment, see 4 Hinds’ Precedents mitted legislative committees with §§ 3701–4018; 7 Cannon’s Precedents proper jurisdiction to recommend §§ 1125–1570, 1579–1720. such retrenchments to the Appro-

5225 Ch. 26 § 1 DESCHLER’S PRECEDENTS priations Committee for discre- made without prior authorization tionary inclusion in the reported has, in a sense, the effect of legis- bill; paragraph (c) retained the lation, particularly in view of rul- prohibition against amendments ings of long standing (5) that a changing existing law but per- ‘‘proposition changing existing mitted limitation amendments law’’ may be construed to include during the reading of the bill by the enactment of a law where paragraph only if specifically au- none exists. The two concepts are thorized by existing law for the treated separately in this chapter, period of the limitation; and para- however. For example, it will be seen that the objection that an ap- graph (d) provided a new proce- propriation is ‘‘unauthorized’’ is dure for consideration of retrench- frequently employed where the ment and other limitation amend- general purpose of the appropria- ments only when reading of a gen- tion has been authorized, but the eral appropriation bill has been amount sought to be appropriated completed and only if the Com- allegedly exceeds the amount au- mittee of the Whole does not thorized.(6) adopt a motion to rise and report Frequently, rulings on points of ( ) the bill back to the House. 3 order will turn on whether a prop- The broad requirement that ap- osition is in fact one of legislation, propriations be ‘‘authorized’’ by or whether it is merely a permis- prior legislation is discussed in sible ‘‘limitation’’ on the funds another chapter.(4) In practice, the sought to be appropriated. Such concepts ‘‘unauthorized appropria- limitations may validly be im- tions’’ and ‘‘legislation on general posed in certain circumstances, appropriation bills’’ have fre- where the effect is not to directly quently been used almost inter- change existing law. Thus, just as changeably as grounds for objec- the House may decline to appro- tion in making points of order priate for a purpose authorized by pursuant to Rule XXI clause 2. It law, it may by limitation prohibit can, of course, readily be seen the use of the money for part of that an appropriation sought to be the purpose while appropriating for the remainder of it.(7) The lan- 3. See Rule XXI clause 2, House Rules and Manual § 834 (1983). 5. See 4 Hinds’ Precedents §§ 3812, 4. See Ch. 25, supra, discussing general 3813. principles applicable to appropriation 6. See, for example, § 21, infra. bills and the reporting and consider- 7. See 4 Hinds’ Precedents § 3936; 7 ation thereof. Cannon’s Precedents § 1595.

5226 LEGISLATION ON APPROPRIATION BILLS Ch. 26 § 1 guage of the limitation may pro- The rule against unauthorized vide that no part of the appropria- appropriations and legislation on tion under consideration shall be general appropriation bills is one used for a certain designated pur- of long standing. Its purpose has pose.(8) been to prevent delay of appro- Such limitations must not be priation bills because of conten- legislative in character; for exam- tion over propositions of legisla- ple, they must not give affirma- tion while at the same time to re- tive directions, impose new duties quire prior consideration and en- upon executive officers, or by their actment of authorizing legislation terms restrict executive discretion reported by legislative committees to such a degree as to constitute a with legislative and oversight ju- change in policy rather than a risdiction over the policies and matter of administrative detail. A programs which form the basis for separate division in this chapter (9) expenditure of government funds. discusses those instances in which It should be emphasized that the Chair, usually in response to the rule applies only to ‘‘general’’ points of order based on Rule XXI appropriation bills. The broad clause 2, has held that the propo- question as to when a bill may be sition in question was a permis- considered a ‘‘general’’ appropria- sible limitation on the use of tion bill, and when not, is dis- ( ) funds. 10 cussed in another chapter.(11) 8. 4 Hinds’ Precedents §§ 3917–3926; 7 Note: The rulings cited in this Cannon’s Precedents § 1580. chapter are intended to illustrate 9. See §§ 64–79, infra. the application of the rule requir- 10. A limitation may also be imposed on ing appropriations to be based on the total amount appropriated by a prior authorization. No attempt bill. See § 80, infra. Pursuant to has been made to indicate wheth- § 401(a) of the Congressional Budget er measures similar to those ruled Act of 1974 (Pub. L. No. 93–344), upon, if offered today, would in legislative bills authorizing contract fact be authorized under present or borrowing spending authority laws. must provide that such authority is available only to the extent or in such amounts provided in appropriations acts. Thus, a properly drafted ‘‘General’’ Appropriation Bills limitation on new spending authority may be included in a general appro- § 1.1 Restrictions imposed by priation bill if specifically required Rule XXI clause 2 apply only by the act containing that contract or borrowing authority. 11. See Ch. 25, supra.

5227 Ch. 26 § 1 DESCHLER’S PRECEDENTS

to general appropriation to constitute the total amount that will bills. be furnished during such fiscal year through such agency for relief pur- On May 21, 1937,(12) there was poses.’’ . . . under consideration in the Com- MR. PARSONS: I make the point of mittee of the Whole a joint resolu- order that the amendment is not in order because it is legislation on an ap- tion (H.J. Res. 361) providing for propriation bill. appropriations ‘‘to continue to pro- THE CHAIRMAN: (13) The Chair is vide relief and work relief on use- ready to rule. The bill in question is ful public projects,’’ including not a general appropriation bill, and therefore clause 2 of Rule XXI does not projects previously approved for apply. The Chair overrules the point of the Works Progress Administra- order. tion. The funds appropriated were to be used ‘‘in the discretion of Continuing Appropriations and under the direction of the President.’’ During consideration § 1.2 Parliamentarian’s Note: of the joint resolution, a point of The rule against legislation order was raised against the fol- in appropriation bills is lim- lowing amendment, and pro- ited to general appropriation ceedings ensued as indicated bills; thus, a joint resolution below: continuing appropriations for government agencies Page 3, after line 18, insert the following: ‘‘The funds allocated hereunder pending enactment of the to the Works Progress Administration regular appropriation bills, shall be so apportioned and distributed which is not a ‘‘general ap- over the 12 months of the fiscal year propriation bill’’ as it does ending June 30, 1938, and shall be so not provide appropriations administered during such fiscal year as on an annual basis, is not 12. 81 CONG. REC. 4936, 75th Cong. 1st subject to the prohibitions of Sess. See also 84 Cong. Rec. 7345, Rule XXI clause 2 against leg- 7365, 7366, 76th Cong. 1st Sess., islative language. June 16, 1939 (proceedings relating On Sept. 21, 1967,(14) The fol- to H.J. Res. 326, the work relief and public works appropriation bill and a lowing proceedings occurred in the point of order raised by Mr. Claude House: V. Parsons [Ill.]). MR. [GEORGE H.] MAHON [of Texas]: For further discussion of the dis- Mr. Speaker, I ask unanimous consent tinction between ‘‘general’’ appropriation bills and those not falling 13. John J. O’Connor (N.Y.). within that category, see Ch. 25, 14. 113 CONG. REC. 26370, 90th Cong. supra. 1st Sess.

5228 LEGISLATION ON APPROPRIATION BILLS Ch. 26 § 1

that it may be in order on Wednesday, MR. GROSS: This would be consid- September 27, or any day thereafter, ered in the House under the 5-minute for the House to consider a joint reso- rule, and any amendment that is ger- lution making continuing appropria- mane could be offered? tions. MR. MAHON: We have considered (15) them heretofore under the 5-minute THE SPEAKER: Is there objection rule and that would be my intention in to the request of the gentleman from this case.... Texas? MR. GROSS: Mr. Speaker, in view of MR. [FRANK T.] BOW [of Ohio]: Mr. the fact that the gentleman says the 5- Speaker, reserving the right to object, minute rule will prevail and that any I wish to address a parliamentary in- germane amendments will be in order quiry to the Chair. to the continuing resolution, I withdraw my reservation of objection. THE SPEAKER: The gentleman will THE PEAKER state his parliamentary inquiry. S : Is there objection to the request of the gentleman from MR. BOW: Mr. Speaker, the par- Texas [Mr. Mahon]? liamentary inquiry is this: Is a con- There was no objection.(16) tinuing resolution subject to amendment when it is brought onto the floor Supplemental Appropriations of the House, if the amendment is germane? § 1.3 A supplemental appro- THE SPEAKER: The Chair will state priation joint resolution con- that any germane amendment will be in order. It would have to be a ger- taining additional funds for mane amendment. two agencies for the balance MR. BOW: I thank the Speaker, and of the fiscal year was held I withdraw my reservation of object. not to be a ‘‘general’’ appro- THE SPEAKER: Is there objection to priation bill within the the request of the gentleman from meaning of the rule prohib- Texas? . . . iting appropriations in gen- MR. [H. R.] GROSS [of Iowa]: Mr. Speaker, further reserving the right to eral appropriation bills for object, may I ask the gentleman from unauthorized expenditures. Texas if this is the second, third, On Apr. 12, 1973,(17) Mr. George fourth, or fifth continuing resolution? H. Mahon, of Texas, called up for MR. MAHON: Mr. Speaker, this is the third continuing resolution to be con- 16. Parliamentarian’s Note: Had this sidered by the House this year. been a general appropriation bill, it I would also say in this case, as in would have been called up as a privi- former cases, that the continuing reso- leged bill under Rule XI clause 22 lution would be considered in the (now clause 4), rather than by unani- House under the 5-minute rule, and I mous consent. See Ch. 25, supra, for assume any relevant amendment could further discussion of the privileged be offered. nature of general appropriation bills. 17. 119 CONG. REC. 12191, 93d Cong. 1st 15. John W. McCormack (Mass.). Sess. Permission for consideration of

5229 Ch. 26 § 1 DESCHLER’S PRECEDENTS consideration in the House as in Later on, in section (b) of the same authority to fix rates, the rate may be Committee of the Whole a joint determined under (3): resolution (H.J. Res. 496) making The need of each such air carrier supplemental appropriations for (other than a supplemental air car- the Civil Aeronautics Board and rier) for compensation for the trans- the Veterans’ Administration for portation of mail sufficient to insure the performance of such service, and, fiscal year 1973. together with all other revenue of Mr. Silvio O. Conte, of Massa- the air carrier .... chusetts, raised a point of order Therefore, Mr. Speaker, I raise the against the appropriation for the point of order that this appropriation Civil Aeronautics Board, and pro- exceeds the authorization as passed by the Congress and signed into law by ceedings ensued as indicated the President.... below: THE SPEAKER: (18) The Chair is ready to rule. MR. CONTE: Mr. Speaker, I raise a The pending House joint resolution point of order in regard to the pay- is not a general appropriation bill. The ments to air carriers for an additional point of order which the gentleman has amount for ‘‘payments to air carriers’’ made does not apply to this pending in the amount of $26,800,000, to re- legislation. main available until expended. The Chair, therefore, overrules the The point of order is that it exceeds point of order. the authority to fix rates as set by the Parliamentarian’s Note: This Congress under section 406, 72 statute bill, containing as it did appro- 763, as amended by 76 statute 145, 80 priations for two agencies for the statute 942, and 49 U.S.C. 1376. remainder of the fiscal year, The law states: would have qualified as a ‘‘general The Board is empowered and di- appropriation bill’’ under the rected, upon its own initiative or upon petition of the Postmaster Gen- precedents. However, the Com- eral or an air carrier, (1) to fix and mittee on Appropriations filed the determine from time to time, after bill under the impression it was notice and hearing, the fair and rea- not a general bill, and since no sonable rates of compensation for the transportation of mail by aircraft. points of order were reserved, none could have been pressed in this bill was granted on Apr. 10, Committee of the Whole. 1973. The bill was filed on Apr. 11, 1973, pursuant to a unanimous-con- Legislation in Motion to Re- sent agreement to permit filing after commit adjournment. No points of order against the bill were reserved, either § 1.4 If any portion of a motion at the time of filing or at the time to recommit with instruc- permission was granted for consideration of the bill. 18. Carl Albert (Okla.).

5230 LEGISLATION ON APPROPRIATION BILLS Ch. 26 § 1

tions constitutes legislation MR. [JOHN D.] DINGELL [of Michi- on an appropriation bill, the gan]: Mr. Speaker, I make a point of entire motion is out of order. order against the motion to recommit.... On Sept. 1, 1976,(19) During con- Mr. Speaker, the motion to recommit sideration in the House of the leg- falls in violation of the rules against islative branch appropriation bill legislation in an appropriation bill. (H.R. 14238), a point of order was Under the rules of the House, Mr. raised and sustained against a Speaker, a motion to recommit is subject to the same germaneness tests as motion to recommit as indicated any other amendment to a piece of leg- below: islation. The Clerk read as follows: Mr. Speaker, I therefore make a point of order against the motion on Mr. [R. Lawrence] Coughlin [of Pennsylvania] moves to recommit the grounds that it constitutes an at- the bill, H.R. 14238, to the Com- tempt to legislate in an appropriation mittee on Appropriations, with in- bill.... structions to that Committee to re- On page 3, there is a requirement port the bill back to the House forth- with, with the following amend- that any Member who makes a willful ments: On page 7, after line 24, in- statement subscribing any voucher sert the following new section: . . . shall be guilty of the penalties of per- ‘‘Expenditure of any appropriation jury. contained in this Act, disbursed on This adds essentially a new amend- behalf of any Member or Committee ment to the Criminal Code, which most of the House of Representatives, shall be limited to those funds paid properly can be found in title 18 of the against a voucher, signed and ap- United States Code, and it imposes proved by a Member of the House of further, Mr. Speaker, a requirement Representatives, stating under pen- that such act shall constitute a felony alty of perjury, that the voucher is which will be punishable by not more for official expenses as authorized by law: Provided further, That any than $2,000 or subject to imprisonment Member of the House of Representa- of not more than 5 years.... tives who willfully makes and sub- MR. COUGHLIN Mr. Speaker, I rise in scribes to any such voucher which opposition to the point of order that contains a written declaration that it is made under the penalties of per- has been raised.... jury and which he does not believe Mr. Speaker, with respect to the at the time to be true and correct in point of order addressed to the execu- every material matter, shall be tion of vouchers under penalties of per- guilty of a felony and, upon convic- tion thereof, shall be fined not more jury, that does not impose a significant than $2,000 or imprisoned for not additional duty in compliance with the more than five years, or both.’’. . . facts that those vouchers must already be executed by the Members certifying 19. 122 CONG. REC. 28883, 28884, 94th that they are for official expenses. This Cong. 2d Sess. The Clerk read as fol- motion says they would be executed lows: under penalty of perjury.

5231 Ch. 26 § 1 DESCHLER’S PRECEDENTS

The additional amendment would On Oct. 27, 1983,(1) The Com- concede the point of order as it applies mittee of the Whole had under to the second paragraph on page 3 of consideration the Treasury De- the motion, but I think it would be beneficial to the Members to have that partment and Postal Service ap- explanation there; and I would hope propriation bill (H.R. 4139), when that the point of order would be with- the following proceedings oc- drawn as to that point.... curred: THE SPEAKER: (20) The Chair is pre- MR. [CHRISTOPHER H.] SMITH of New pared to rule. The Chair is going to Jersey: Mr. Chairman, would it be in sustain the point of order. The gen- order at this time to offer a change in tleman from Pennsylvania has con- the language that would not be consid- ceded one portion of the point of order, ered under the House rules to be legis- and with that the entire motion to relating on an appropriations bill? commit is subject to a point of order. THE CHAIRMAN: (2) The Chair will first entertain any amendment to the Procedure for Offering Limita- bill which is not prohibited by clause tions 2(c), rule XXI, and will then entertain amendments proposing limitations § 1.5 When a general appro- pursuant to clause 2(d), rule XXI. priation bill has been read, Mr. Smith of New Jersey: Mr. Chair- man, I offer an amendment. or considered as read, for MR. [BRUCE A.] MORRISON of Con- amendment in its entirety, necticut: Mr. Chairman, I reserve a the Chair (after entertaining point of order against the amendment. points of order) first enter- THE CHAIRMAN: The Clerk will re- tains amendments which are port the amendment. not prohibited by Rule XXI The Clerk read as follows: clause 2(c), and then recog- Amendment offered by Mr. Smith of New Jersey: On page 49, imme- nizes for amendments pro- diately after line 2, add the following posing limitations not con- new section: tained or authorized in exist- ‘‘Sec. 618. No funds appropriated by this Act shall be available to pay ing law pursuant to Rule XXI for an abortion, or the administra- clause 2(d), subject to the tive expenses in connection with any health plan under the Federal em- preferential motion that the ployees health benefit program Committee of the Whole rise which provides any benefits or cov- and report the bill to the erages for abortions, under such ne- gotiated plans after the last day of House with such amend- the contracts currently in force.’’ ments as may have been agreed to. 1. 129 CONG. REC. —, 98th Cong. 1st Sess. 20. Carl Albert (Okla.). 2. Philip R. Sharp (Ind.).

5232 LEGISLATION ON APPROPRIATION BILLS Ch. 26 § 1

MR. MORRISON of Connecticut: Mr. bill to the House with the Chairman, I would like to be heard on recommendation that it be my point of order. recommitted, with instruc- THE CHAIRMAN: The Chair will hear the gentleman’s point of order. tions to the committee to re- MR. MORRISON of Connecticut: Mr. port the bill back to the Chairman, my point of order is that House (whether or not forth- this amendment constitutes a limita- with) with an amendment tion on an appropriation and cannot be considered by the House prior to the proposing such a limitation, consideration of a motion by the Com- does not take precedence of mittee to rise. the motion to rise and report THE CHAIRMAN: The Chair must in- the bill to the House with dicate to the gentleman that no such such amendments as may preferential motion has yet been made. have been adopted. The gentleman is correct that a motion that the Committee rise and re- The following motions were port the bill to the House with such made on Sept. 19, 1983,(3) during amendments as may have been adopt- consideration of H.R. 3222 (De- ed takes precedence over an amendment proposing a limitation. partments of Commerce, State, Justice, and the Judiciary appro- Motion to Rise and Report priations for fiscal 1984): With Recommendation For The Clerk read as follows: Recommittal Mr. [Neal] Smith of Iowa moves that the Committee do now rise and § 1.6 Pursuant to Rule XXI report the bill to the House with sundry amendments with the rec- clause 2, as adopted in the ommendation that the amendments 98th Congress, a motion that be agreed to and that the bill as the Committee of the Whole amended do pass. rise and report a general ap- MR. [ROBERT S.] WALKER [of Penn- propriation bill to the House sylvania]: Mr. Chairman, I have a pref- with such amendments as erential motion at the desk. THE CHAIRMAN: (4) The Clerk will re- may have been adopted takes port the preferential motion. precedence over an amend- The Clerk read as follows: ment proposing a limitation Mr. Walker moves that the Com- not contained or authorized mittee do now rise and report the in existing law, after the bill bill to the House with the rec- has been read for amend- ommendation that the bill, as

ment in its entirety; accord- 3. 129 CONG. REC. —, 98th Cong. 1st ingly a motion that the Com- Sess. mittee rise and report the 4. George E. Brown, Jr. (Calif.). 5233 Ch. 26 § 1 DESCHLER’S PRECEDENTS

amended, be recommitted to the particular amendment back to the Committee on Appropriations with instructions that the committee re- House) that which may not be port the bill, as amended, back to done directly under the rules of the House with the following amend- the House by way of amendment. ment: At the end of title II, add the fol- On appeal, the Chair’s decision lowing new section: was sustained by a voice vote. ‘‘None of the funds appropriated under this title shall be used to prevent or in any way prohibit the im- Legislative Language in Prior plementation of programs of vol- Appropriation Acts untary school prayer and meditation in the public schools.’’ § 1.7 The fact that legislative Mr. Smith made a point of order language may have been in- against the preferential motion on cluded in appropriation acts the ground that the motion vio- in prior years applicable to lated clause 2 of Rule XXI. funds in those laws does not The effect of the Walker motion permit the inclusion in a would have been to reverse the general appropriation bill of precedence contemplated by Rule similar language requiring XXI clause 2(d) by allowing a vote officials to make determina- on a limitation amendment before tions not otherwise required the motion to rise and report. Ac- by law for the fiscal year in cordingly, the Chair indicated question. that, although a motion that the The ruling of the Chair on Sept. Committee of the Whole rise and 22, 1983,(6) as that a provision in report a bill to the House with the a general appropriation bill pro- recommendation that the bill be hibiting the use of funds therein recommitted is preferential to a to perform abortions except where motion to rise and report where a the life of the mother would be en- bill has been read in full under dangered if the fetus were carried the general five-minute rule of the to term, and providing that the House,(5) instructions in a recom- several states shall remain free mittal motion may not propose an not to fund abortions to the extent amendment which would not be in they deem appropriate, is legisla- order. The Chair applied the prin- tion requiring federal officials to ciple that it is not in order to do make determinations and judg- indirectly (by a motion to recom- ments not required by law, not- mit with instructions to report a 6. 129 CONG. REC. —, 98th Cong. 1st 5. 8 Cannon’s Precedents Sec. 2329. Sess.

5234 LEGISLATION ON APPROPRIATION BILLS Ch. 26 § 2 withstanding the inclusion in Committee of the Whole lacked prior year appropriation bills of authority to pass upon the ques- similar legislation applicable to tion.(7) funds in prior years. The pro- General appropriation bills are ceedings are discussed in § 52.44, read ‘‘scientifically’’ only by para- infra. graph headings and appropriation amounts, and points of order § 2. Points of Order; Timeli- against a paragraph must be ness made before an amendment is offered thereto or before the Clerk As all bills making or author- reads the next paragraph heading izing appropriations require con- and amount. Where the bill is sideration in Committee of the considered as having been read Whole, it follows that the enforce- and open to amendment by unani- ment of Rule XXI clause 2 must mous consent, points of order ordinarily occur during consider- against provisions in the bill must ation in Committee of the Whole, be made before amendments are where the Chair, on the raising of offered, and cannot be reserved a point of order, may rule out any pending subsequent action on portion of the bill in conflict with amendments.(8) the rule. No report of parts of the bill thus ruled out is made to the House. It is the practice, there- Reservation of Points of Order fore, for some Member to reserve § 2.1 Since points of order had points of order when a general ap- not been reserved on an appropriation bill is referred to Com- propriation bill when it was mittee of the Whole, in order that reported to the House and portions in violation of the rule referred to the Committee of may be eliminated in the Com- the Whole, points of order mittee. On one occasion where against a proposition in vio- points of order were not reserved lation of Rule XXI clause 2 against an appropriation bill were overruled on the when it was reported to the House ground that the Chairman and referred to the Committee of lacked authority to pass the Whole, points of order in the upon the question. Committee of the Whole against a proposition in violation of this 7. See § 2.1, infra. clause were overruled, on the 8. See the discussion in House Rules ground that the Chairman of the and Manual § 835 (1983). 5235