[Deschler's Precedents, Volume 8]
[Chapter 26. Unauthorized Appropriations; Legislation on Appropriation Bills]
[B. Appropriations for Unauthorized Purposes]
[§ 18. Justice]
[From the U.S. Government Printing Office, www.gpo.gov]
[Page 5550-5554]
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:
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7. 80 Cong. Rec. 4926, 4927, 74th Cong. 2d Sess.
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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.
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8. Byron B. Harlan (Ohio).
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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:
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9. 124 Cong. Rec. 17629, 95th Cong. 2d Sess.
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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.
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10. George E. Brown, Jr. (Calif.).
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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:
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11. 124 Cong. Rec. 17622-24, 95th Cong. 2d Sess.
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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.
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12. George E. Brown, Jr. (Calif.).
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[[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.