College of William & Mary Law School William & Mary Law School Scholarship Repository

Faculty Publications Faculty and Deans

1994 Appropriation Riders Neal Devins William & Mary Law School, [email protected]

Repository Citation Devins, Neal, "Appropriation Riders" (1994). Faculty Publications. 1635. https://scholarship.law.wm.edu/facpubs/1635

Copyright c 1994 by the authors. This article is brought to you by the William & Mary Law School Scholarship Repository. https://scholarship.law.wm.edu/facpubs APPROPRIATION RIDERS 67

APPROPRIATION RIDERS. One of the most controversial and frequently used devices ofappropri­ ations-based policy-making is the rider. Appropria­ tion riders, which are amendments tacked onto an appropriation bill, take one of two forms. Legislative riders are nongermane amendments that change ex­ istin g law, impose additional duties on government, or require judgments and determinations not otherwise required by law. Congressioll al rules prohibit such riders in o rder to keep authorizations separate and apart from appropriations. Limitation riders, in con­ trast, are pres umptively germane amendments 1.0 a ll appropriations bill that specifi ca ll y prohibit the use 01' funds for designated activities. The History of Riders. Congress's use of and pres­ idential opposition to appropriatioll riders dates back to the 18305 . I ndeed , by 1837, d elays ill the enactment or a ppropriation bills caused by the atl.achlllent 0 1' 68 APPROPRIATION RIDERS legislative riders led the House to adopt a rule prohib­ Union; and possible Department of Education efforts iting the appropriation "for any expenditure not pre­ to prevent voluntary prayer in the public schools. viously authorized by law." Legislative riders were still Limitation riders have also proved critically impor­ enacted, however. In 1879, President Rutherford B. tant during the Reagan and Bush presidencies. The Hayes attacked such riders as improperly interfering IRAN-CONTRA AFFAIR, for example, centered on the re­ with EXECUTIVE PREROGA·rlVE. Through a series of veto fusal of Reagan administration officials to comply with messages, Hayes claimed that Congress effectively a limitation rider prohibiting federal assistance to the negated the President's veto power by attaching contra rebels in Nicaragua. Other 1980s and 1990s nongermane riders to appropriations. In language riders affected abortion funding, Federal Communi­ strikingly similar to both late twentieth-century attacks cations Commission (FCC) affirmative action guide­ on continuing resolutions and justifications for the lines, and communications between executive agencies ITEM VETO, Hayes argued that the "executive will no and congressional oversight committees. longer be what the framers of the Constitution in­ Debate over Riders. The controversial nature of tended" because Congress's attachment of nonger­ limitation riders is not simply an outgrowth of the mane riders to necessary appropriation measures controversial subjects addressed by such riders. Limi­ made it impossible for the President to use the veto tation riders also affect congressional relations with power without "stopping all of the operations of the both the courts and the executive. Critics of limitation Government." riders, for example, claim that since most appropria­ The Constitution does not distinguish between Con­ tions are enacted every year, agencies frequently do gress's power to appropriate funds and its other law­ not know whether to view limitation riders as perma­ making powers. The Constitution, moreover, does not nent changes or temporary measures. Also, courts do demand that all provisions in a bill be pertinent to the not know whether to view limitation riders as amend­ bill's purpose. Legislative riders therefore are not ments to the underlying authorization bill. For exam­ constitutionally foreclosed. House and Senate rules, ple, does the annual reenactment (since 1977) of riders however, prohibit such riders. Limitation riders, prohibiting Medicaid-supported abortions relieve the which are not affected by these rules, have also had an states of their abortion-related Medicaid cost-sharing enormous impact and remain extremely controversial. responsibilities? Military activities in Southeast Asia, public funding of Critics also argue that Congress disrupts the balance ABORTION, air bags for automobiles, tax-exemptions of powers by using limitation riders to micromanage for discriminatory schools, religious activities in the executive agencies. Specifically, these critics point to public schools, and public funding of school desegre­ limitation riders prohibiting funding of regulatory gation are but some of the areas affected by limitation initiatives, proposed reexaminations of agency policy, riders. agency supervision of contacts between agency em­ Congress has been attaching limitation riders to ployees and members and committees of Congress appropriation bills since the 1870s. Nineteenth-cen­ and their staff, and White House review of agency tury riders involved WAR POWERS, federal supervision of orders. In 1990, pointing to such measures, Bush elections, and extensions of the Constitution and rev­ administration Attorney General Dick Thornburgh enue laws to territories. By the I 970s, limitation riders attacked such riders as "clearly eroding the President's became one of Congress's principal policy-making constitutional responsibility to supervise the affairs of tools. From 1971 to 1977, 225 limitation amendments the executive branch as he sees fit." Some critics have (31 percent of all amendments) were offered to appro­ extended this attack to argue that Congress cannot use priations bills. By 1980, limitation riders accounted for its appropriations powers to prevent the President over 40 percent of all amendments. These riders, from performing the duties and exercising the pre­ moreover, frequently addressed volatile policy dis­ rogatives given him by Article II of the Constitution. putes. Fiscal year 1980 riders, for example, included Furthermore, since limitation riders are often at­ restrictions on nondiscrimination enforcement by the tached to omnibus funding bills, critics also argue that Internal Revenue Service (IRS), the Department of the President cannot effectively use the veto power to Education, and the Department of Justice; Occupa­ check legislative interference. tional Safety and Health Administration (OSHA) en­ Supporters of Congress's use oflimitation riders, in forcement of safety standards in small businesses; contrast, argue that appropriations-based restrictions Department of Housing and Urban Development fi­ on agency action may be the only realistic way to stop nancial assistance to student aliens; the distribution of the executive from launching administrative initiatives government publications to CUBA, Iran, and the Soviet that Congress disfavors. Claiming that the appropria- AREA RESOLUTIONS 69 tions clause empowers Congress to control the level of riders as a mechanism to keep in check court rulings executive-branch enforcement or execution of the and government programs that they disfavor. law, supporters of Congress's use of limitation riders also reject opponents' constitutional objections. In­ BIBLIOGRAPHY deed, for supporters, rather than a mechanism to Devins, Neal. "Appl'Opriations Redux: A Critical Look at the Fiscal oversee every detail of executive implementation, lim­ Year 1988 Continuing Resolution." Duke Law journal (198R): itation riders enable Congress to defend against exec­ 389-42 1. utive intrusions into Congress's lawmaking powers. U.S. General Accounting Office. Appropriations: Continuing Resolu­ For example, in response to IRS efforts during the tions and an Assessment o/Automatic Funding Approaches. Repon to Carter administration to deny tax-exempt status the Chairman. Committee on Rules. House of Representatives. to private schools with inadequate minority enroll­ 1986. ments, Congress enacted limitation riders as a stopgap NEAL DEVINS measure to allow the appropriate legislative commit­ tees a chance to evaluate the proposal. Similarly, after the FCC sought to reexamine its affirmative action guidelines during the Reagan administration, Con­ gress sought to check this "unwarranted" initiative through a limitation rider first enacted in 1987. That Congress used limitation riders to check both Carter and Reagan initiatives demonstrates that this device is neither liberal nor conservative, Republican nor Dem­ ocratic. Congress's use of limitation riders as a policy-mak­ ing device extends well beyond appropriations-based oversight of the executive. Another controversial use of limitation riders concerns elected government re­ sponses to Supreme Court decisions. Unlike constitu­ tional amendments and statutory challenges to Su­ preme Court decisions, funding restrictions do not seek to overturn Court decisions. Instead, elected gov­ ernment expresses its disagreement with the Court by refusing to appropriate funds that help effectuate Court rulings. For example, since fiscal year 1977, appropriations bills for the DEPARTMENT OF H EA LTH AND HUMAN SERVICES (formerly Department of Health, Ed­ ucation, and Welfare) have contained language pro­ hibiting federal funding of abortion in almost all circumstances. These limitation riders have been sup­ ported, at various times and to varying degrees, by both the Congress and the White House. The Reagan and Bush administrations, for example, strongly backed these measures and vetoed appropriations bills that attempted to liberalize abortion funding. The debate over the propriety of riders is likely to continue. Congress has strong incentive to use this power. Appropriation riders are easier to enact than substantive legislation. Riders too are an effective mechanism to check both the executive and the Su­ preme Court. That the benefits of Congress's use of appropriation riders may strain the policy-making process does not matter. Congress is unlikely to aban­ don a policy tool that is as convenient as it is potent. Presidents too are unlikely to abandon appropriation