[Deschler's Precedents, Volume 8, Chapter 26]
[Chapter 26. Unauthorized Appropriations; Legislation on Appropriation Bills]
[B. Appropriations for Unauthorized Purposes]
[§ 7. In General]
[From the U.S. Government Publishing Office, www.gpo.gov]
[Page 5372-5396]
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.
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7. Rule XXI clause 2. See Sec. 1, supra, for text and discussion of
the rule.
8. Ch. 25, supra.
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Where the law authorizes appropriations only out of a special fund,
appropriations from the general fund are deemed
unauthorized.(9)
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9. See Sec. Sec. 35.1, 35.2,
infra. -------------------
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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:
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10. 107 Cong. Rec. 18179, 87th Cong. 1st Sess.
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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.
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11. Wilbur D. Mills (Ark.).
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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:
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12. 113 Cong. Rec. 11589, 90th Cong. 1st Sess.
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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.
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13. James G. O'Hara (Mich.).
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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:
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14. 118 Cong. Rec. 14455, 92d Cong. 2d Sess.
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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.
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15. Jack B. Brooks (Tex.).
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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:
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16. 105 Cong. Rec. 12125, 86th Cong. 1st Sess.
See also 105 Cong. Rec. 12130, 86th Cong. 1st Sess., June
29, 1959.
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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.
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17. Paul J. Kilday (Tex.).
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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:
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18. 116 Cong. Rec. 25240-42, 91st Cong. 2d Sess.
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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:
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19. 91 Cong. Rec. 1682, 1683, 79th Cong. 1st Sess.
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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?
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20. John J. Sparkman (Ala.).
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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:
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1. 119 Cong. Rec. 19855, 93d Cong. 1st Sess.
2. H.R. 8619.
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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:
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3. 120 Cong. Rec. 21036, 21037, 93d Cong. 2d Sess.
4. H.R. 15544.
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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:
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20. 83 Cong. Rec. 2655, 2656, 75th Cong. 3d Sess.
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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.
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1. Marvin Jones (Tex.).
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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:
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2. 103 Cong. Rec. 5040, 85th Cong. 1st Sess.
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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?
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3. Aime J. Forand (R.I.).
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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]]