[Deschler's Precedents, Volume 8, Chapter 26]
[Chapter 26. Unauthorized Appropriations; Legislation on Appropriation Bills]
[B. Appropriations for Unauthorized Purposes]
[§ 10. Evidence of Authorization]
[From the U.S. Government Publishing Office, www.gpo.gov]
[Page 5419-5433]
CHAPTER 26
Unauthorized Appropriations; Legislation on Appropriation Bills
B. APPROPRIATIONS FOR UNAUTHORIZED PURPOSES
Sec. 10 Evidence of Authorization
Citation of Statute
Sec. 10.1 Language in a general appropriation bill permitting funds in
that paragraph to remain available until expended was held in order
upon citation by the Committee on Appropriations of statutory
authority therefor.
On Nov. 30, 1973,(17) during consideration in the
Committee of the Whole of a supplemental appropriation bill (H.R.
11576), a point of order was raised against the following provision and
proceedings ensued as indicated below:
---------------------------------------------------------------------------
17. 119 Cong. Rec. 38845, 93d Cong. 1st Sess.
---------------------------------------------------------------------------
[[Page 5420]]
Territorial Affairs
trust territory of the pacific islands
For an additional amount for ``Trust Territory of the Pacific
Islands'', $8,410,000, to remain available until expended.
Mr. [John D.] Dingell [of Michigan]: Mr. Chairman, I raise a
point of order to the language at page 3, line 4, beginning with
the word ``to,'' and reading as follows: ``to remain available
until expended.''
I cite as authority for this, Mr. Chairman, rule XXI, clause 2,
constituting legislation in an appropriation bill and exceeding the
authority of the Committee on Appropriations, essentially
appropriating for a period beyond 1 year. . . .
Mr. [George H.] Mahon [of Texas]: Mr. Chairman, the basic law
states that the Congress is authorized to make the funds available
as expended. This authorization is amply fortified in law. The
point of order is not valid, in the judgment of the Committee on
Appropriations.
The Chairman: (18) Does the gentlewoman from
Washington (Mrs. Hansen) or the gentleman from Texas (Mr. Mahon)
have a copy of the authorization referred to that could be sent to
the desk?
---------------------------------------------------------------------------
18. James G. O'Hara (Mich.).
---------------------------------------------------------------------------
Mr. Mahon: Mr. Chairman, we have the citation here. It is 68
Stat. 330. . . .
The Chairman: The Chair is prepared to rule.
The Chair has examined the statute in question and finds that
it does indeed authorize appropriations providing funds for the
trust territories and specifies that they may remain available
until expended.
The Chair, therefore, overrules the point of order.
Letter From Executive Officer
Sec. 10.2 In ascertaining whether existing law has been complied with
by executive officials in order to justify an appropriation (a
condition stated in the law), the Chair has held that a letter
written by an executive officer charged with the duty of furthering
a certain program was sufficient documentary evidence of
authorization of an appropriation in the manner prescribed by law.
On May 17, 1937,(19) the Committee of the Whole was
considering H.R. 6958, an Interior Department appropriation bill. At
one point the Clerk read as follows, and proceedings ensued as
indicated below:
---------------------------------------------------------------------------
19. 81 Cong. Rec. 4680, 4681, 75th Cong. 1st Sess.
---------------------------------------------------------------------------
Provo River project, Utah, $750,000.
Mr. [John] Taber [of New York]: Mr. Chairman, I make the point
of order against this paragraph that the appropriation is not
authorized by law. No construction has been started and no law is
in force authorizing the
[[Page 5421]]
project. I call the attention of the Chairman to the latter part of
page 245 of the record of the hearings and to the following words:
Construction program through fiscal year 1937. The starting
of actual construction work has been delayed by the necessity
of organization and negotiating repayment and water-
subscription contracts.
It is expected that bids will be received for the
construction--
And so forth. This means there has been no actual construction
on this job and that it has not been authorized by specific
legislation. Therefore, I make the point of order against it that
it is legislation on an appropriation bill, and has not been
authorized by law.
The Chairman: (20) The Chair invites attention to
the provision of the United States Code in title 43, section 413,
which reads as follows:
---------------------------------------------------------------------------
20. Jere Cooper (Tenn.).
---------------------------------------------------------------------------
Approval of projects by President. No irrigation project
shall be begun unless and until the same shall have been
recommended by the Secretary of the Interior and approved by
direct order of the President of the United States.
This is the act of June 25, 1910, commonly referred to as the
Reclamation Act.
The Chair would like to inquire of the gentleman from Utah, or
someone else in position to give the information, whether or not
this item against which a point of order has been made has been
recommended by the Secretary of the Interior and approved by the
direct order of the President of the United States, and the Chair
would like to have some evidence on this point.
Mr. [J. W.] Robinson of Utah: Mr. Chairman, I hold in my hand,
in answer to the statement of the Chair, a letter----
Mr. [James G.] Scrugham [of Nevada]: Mr. Chairman, I offer such
documentary evidence.
Mr. Robinson of Utah: I am submitting, Mr. Chairman, a letter
from Secretary Ickes, together with the approval of this project by
the President.
Mr. [Cassius C.] Dowell [of Iowa]: Mr. Chairman, if documentary
evidence is offered for the purpose of showing compliance with the
law, it seems to me it should be presented to the committee.
The Chairman: The Chair has in mind referring to the document
in passing upon the question here presented.
The Chair feels he has examined sufficient evidence to supply
the information requested. . . .
The Chair is prepared to rule.
There has been presented to the Chair a letter from the
Secretary of the Interior, under date of November 13, 1935, which
consists of three pages, and the Chair will only refer to the
pertinent part of the letter which applies to the particular item
under consideration. The letter is addressed to the President of
the United States by the Secretary of the Interior. Among other
things, it is stated in the letter:
I recommend that the Provo River project, consisting of the
Deer Creek division and the Utah Lake division, be approved and
that authority be issued to this Department to proceed with the
work and to make contracts and to take any necessary action for
the construction of said projects or either division thereof.
[[Page 5422]]
Sincerely yours,
Harold L. Ickes,
Secretary of the Interior.
There appears on this letter, ``Approved November 16, 1935,
Franklin D. Roosevelt, President.''
Therefore the Chair is of the opinion that the evidence is
sufficient to meet the requirements in that this item in the
pending bill has been recommended by the Secretary of the Interior
and approved by the President of the United States, in accordance
with the provisions of existing law, as cited by the Chair,
appearing in section 413, title 43, of the United States Code. The
Chair therefore overrules the point of order.
Letter from Official Given Authority in Law
Sec. 610.3 In deciding whether an appropriation for housing and
technical facilities at an Air Corps intermediate station in
Connellsville, Pennsylvania, was authorized by law, the Chair
accepted as evidence a letter from the Chief of Staff of the Army;
and the committee fulfilled its burden of showing authorization
where the Secretary's letter stated that the procedure for
authorization had been complied with.
On Mar. 28, 1938,(1) the Committee of the Whole was
considering H.R. 9995, a military appropriation bill. A point of order
was raised against the following paragraph in the bill:
---------------------------------------------------------------------------
1. 83 Cong. Rec. 4244, 4245, 75th Cong. 3d Sess.
---------------------------------------------------------------------------
For construction and installation of buildings . . . including
interior facilities . . . to remain available until expended and to
be applied as follows: For . . . housing and technical facilities,
Air Corps intermediate station, Connellsville, Pa., $50,000. . . .
Mr. [John] Taber [of New York]: Mr. Chairman, I make the point
of order against the language, beginning with the word ``housing,''
in line 24, page 26, and ending with the figures ``$50,000'' on
page 27, line 1:
Housing and technical facilities, Air Corps intermediate
station, Connellsville, Pa., $50,000.
I do this because it is not authorized by law. . . .
The Chairman: (2) The Chair is ready to rule.
---------------------------------------------------------------------------
2. Luther A. Johnson (Tex.).
---------------------------------------------------------------------------
The act of August 12, 1936, confers upon the Secretary of War
authority to establish intermediate stations in compliance with the
terms of that act. The chairman of the subcommittee has furnished
the Chair with a letter dated March 22, 1938, from the War
Department advising that the Secretary of War under this authority
has designated Connellsville, Pa., as an intermediate station and
that it had been so designated by the Secretary of War.
The gentleman from New York makes the point of order that
before the Secretary of War could make such a designation he must
comply with certain provisions of the act. The Chair
[[Page 5423]]
would not be warranted in assuming that the Secretary of War
disregarded the provisions of the law. Since the Secretary of War
has made the designation, the Chair thinks it is proper to assume
that the Secretary has carried out the provisions of the law giving
him that authority; in other words, the Chair does not think that
it is necessary for the Chair to assume that the Secretary of War
would violate the act. The proper assumption would be that he had
complied with the law.
Mr. Taber: Mr. Chairman, it seems to me that the burden is upon
the gentleman from Pennsylvania, inserting this item in the bill,
to show that the Secretary of War has legally made a designation of
this place as an intermediate air station in accordance with the
provisions of law and that he has met the four requirements that
are set forth in the statute. I do not think a mere letter from the
Secretary of War stating that he has made some designation would
meet the situation unless the Secretary of War set forth that he
has determined that this airport complies with the four
requirements outlined in the statute. Has the Chair a copy of the
statute available?
The Chairman: The Chair has a copy of the act and is familiar
with the act.
Mr. Taber: It would seem to me that the Secretary of War must
make a finding with reference to these four requirements
specifically and that evidence of it must accompany the request for
an authorization.
Mr. [J. Buell] Snyder of Pennsylvania: Mr. Chairman, will the
gentleman yield?
Mr. Taber: I yield.
Mr. Snyder of Pennsylvania: He did make that finding with
reference to the four specific points.
Mr. Taber: But the evidence is not here to support that.
Mr. Snyder of Pennsylvania: The letter should be sufficient
evidence.
The Chairman: The Chair takes it that the evidence is in the
War Department files. The Chair does not think it should be
necessary to require that that evidence be sent here. When the
House is advised that the Secretary of War has followed the act and
has made the designation, the Chair thinks it would be unnecessary
to require that the evidence be set forth. In the Chair's opinion
the Chair has the right to assume that the Secretary of War has
followed the provisions of law and that the records of the War
Department would so show.
The point of order is overruled.
Press Reports Relating to Project
Sec. 10.4 Statements contained in the Official Information Digest
issued by the Office of Government Reports, to the effect that
Engineer Corps troops were on their way to a specified construction
project were held insufficient evidence that the project was
authorized, or that it was a ``work in progress,'' for which an
appropriation could be made.
[[Page 5424]]
On Mar. 10, 1942,(3) the Committee of the Whole was
considering H.R. 6736, a bill concerned with civil functions of the War
Department. The following proceedings took place:
---------------------------------------------------------------------------
3. 88 Cong. Rec. 2223, 2224, 77th Cong. 2d Sess.
---------------------------------------------------------------------------
Mr. [Francis H.] Case of South Dakota. Mr. Chairman, I offer an
amendment, which is at the desk.
The Clerk read as follows:
Amendment offered by Mr. Case of South Dakota: On page 4,
after line 10, insert ``Alaskan Highway: For prosecuting the
construction of a connecting highway from the States to and
into Alaska, $5,000,000.''. . .
Mr. [John] Taber [of New York]: Mr. Chairman, I make the point
of order against the amendment that it is not authorized by law. .
. .
Mr. Case of South Dakota: . . . Even if this project were one
which required authorization by law the rules of the House provide
that where a project is under construction and an appropriation is
made for continuing construction, the appropriation is in order and
is not subject to a point of order.
I call the Chair's attention to an Associated Press dispatch .
. . in which this statement was made:
An advance crew of American engineers is at Dawson Creek,
and dozens of freight cars carrying construction equipment are
expected to pass through Alberta in the next few weeks.
I also call attention to a statement on page 4 of the Offical
Information Digest issued by the Office of Government Reports on
March 5, in which it is stated that War Secretary Stimson announced
that Engineer Corps troops were already on their way to work on
roads for this Alaskan highway. In other words, construction has
already begun. . . .
The Chairman: (4) The Chair is ready to rule.
---------------------------------------------------------------------------
4. Alfred L. Bulwinkle (N.C.).
---------------------------------------------------------------------------
The mere fact that press reports show that certain groups are
in Alaska does not constitute in the mind of the Chair that there
is really a working performance going on in this project at all.
The Chair, therefore, sustains the point of order.
Mr. Case of South Dakota: Mr. Chairman, a parliamentary
inquiry.
The Chairman: The gentleman will state it.
Mr. Case of South Dakota: Did the Chair understand that I
quoted also from the Information Digest issued by the Office of
Government Reports?
The Chairman: The mere information does not constitute an
authorization, or does not show the work has actually begun, and is
in course of construction.
Public Knowledge
Sec. 10.5 The law authorizing an appropriation, conditioned upon
submission of a balanced budget, was held to have been complied
with, on the basis of public knowledge that the fiscal 1957
[[Page 5425]]
budget submitted by the President (and printed as a House document)
was balanced.
On Mar. 20, 1956,(5) the Committee of the Whole was
considering H.R. 10004, a supplemental appropriation bill. The
following proceedings took place:
---------------------------------------------------------------------------
5. 102 Cong. Rec. 5200, 84th Cong. 2d Sess.
---------------------------------------------------------------------------
Mr. [George H.] Mahon [of Texas]: Mr. Chairman, I offer an
amendment.
The Clerk read as follows:
Amendment offered by Mr. Mahon: On page 16, line 9, insert
the following:
``National Park Service: Construction: For an additional
amount for construction $3 million.''. . .
Mr. [H. R.] Gross [of Iowa]: Mr. Chairman, I make the point of
order that the wording of the amendment does not comply with Public
Law 361 of the 83d Congress (requiring a balanced budget as a
condition to the appropriation).
The Chairman: (6) The Chair is ready to rule.
---------------------------------------------------------------------------
6. Francis E. Walter (Pa.).
---------------------------------------------------------------------------
It is a matter of public knowledge that the budget submitted by
the President is a balanced budget; therefore, the Chair feels that
subsection 2(b) of section 4, Public Law 361, has been complied
with.
The point of order is overruled.
Parliamentarian's Note: Public Law No. 83-361, Sec. 4, stated in
part:
Sec. 4(a) There is hereby authorized to be appropriated not to
exceed $5,000,000 to complete (certain described) elements of the
(Jefferson National Expansion) Memorial as authorized by this Act.
. . .
(b) The authorization for an appropriation contained in
subsection (a) shall not be effective until such time as
(1) the receipts of the Government for the preceding fiscal
year have exceeded the expenditures of the Government for such
year, as determined by the Director of the Bureau of the Budget; or
(2) the budget submitted to the Congress by the President . . .
reveals that the estimated receipts of the Government for the
fiscal year . . . are in excess of the estimated expenditures of
the Government for such fiscal year.
Item Carried in Past Appropriation Bills
Sec. 10.6 The fact that an item has been carried in appropriation bills
for many years does not preclude the point of order that it is
legislation on an appropriation bill.
On Mar. 24, 1939,(7) during consideration in the
Committee of the Whole of the Agriculture Department appropriation bill
(H.R. 5269), the following proceedings took place:
---------------------------------------------------------------------------
7. 84 Cong. Rec. 3272, 76th Cong. 1st Sess. See also 96 Cong. Rec.
5799, 81st Cong. 2d Sess., Apr. 26, 1950 (proceedings relating
to H.R. 7786).
---------------------------------------------------------------------------
The Clerk read as follows:
[[Page 5426]]
Mexican fruitfly control: For the control and prevention of
spread of the Mexican fruitfly, including necessary surveys and
control operations in Mexico in cooperation with the Mexican
Government or local Mexican authorities, $160,460.
Mr. [J. William] Ditter [of Pennsylvania]: Mr. Chairman, I make
the point of order that the paragraph on page 54 which the Clerk
has just read, being lines 1 to 4, inclusive, is legislation on an
appropriation bill and not authorized by law. . . .
The Chairman: (8) Can the gentleman from Missouri,
the chairman of the subcommittee, cite any legislative enactment
authorizing this provision?
---------------------------------------------------------------------------
8. Fritz G. Lanham (Tex.).
---------------------------------------------------------------------------
Mr. [Clarence] Cannon of Missouri: Mr. Chairman, this provision
has been carried in the bill for many years, but there is no law
under which an appropriation is authorized for carrying on these
activities.
The Chairman: Of course, the provision was retained in previous
bills by reason of the fact that no point of order was made against
it.
If the gentleman has no citation of law authorizing this
provision in the bill, the Chair sustains the point of order.
Executive Assurance That Authorization Formula Was Followed
Sec. 10.7 Where the law authorizing funds for the Postal Service
required the calculation of the appropriation to be the difference
between revenues received under certain rates and revenues which
would have been received under certain other conditions, a lump-sum
appropriation was held to be authorized as required by Rule XXI
clause 2 upon assurance from the Committee on Appropriations that
that amount was based upon estimates properly submitted pursuant to
that law.
On Nov. 30, 1973,(9) during consideration in the
Committee of the Whole of a supplemental appropriation bill (H.R.
11576), a point of order was raised against the following provision:
---------------------------------------------------------------------------
9. 119 Cong. Rec. 38851-53, 93d Cong. 1st Sess.
---------------------------------------------------------------------------
For an additional amount for ``Payment to the postal service
fund'', $110,000,000.
Mr. [H. R.] Gross [of Iowa]: Mr. Chairman, I make a point of
order on the matter contained in chapter IX of the bill, H.R.
11576.
The Chairman: (10) The gentleman will state his
point of order.
---------------------------------------------------------------------------
10. James G. O'Hara (Mich.).
---------------------------------------------------------------------------
Mr. Gross: . . . Mr. Chairman, chapter IX of the bill proposes
to appropriate an additional amount for payment to the Postal
Service fund in the sum of $110,000,000, for which there is no
authorization in the law, and in clear violation of the House rule.
. . .
Mr. [Tom] Steed [of Oklahoma]: . . . The purpose of the act on
the
[[Page 5427]]
Postal Corporation is quite clear. It provides that the Congress
shall make appropriations to the Postal Corporation for two
purposes; one, 10 percent of the 1970 budget, the other, for
revenues foregone on certain classes of mail.
When the budget came out this year, those two items totaled
$1,373,000,000. The committee, when it reported the bill in the
House and Congress approved the bill, carried these two items of
$1,373,000,000, but there was another matter that was involved,
because the legislative committees have not finished their work.
They have had to fund the Postal Corporation for the Government's
portion of contributions to the retirement fund for postal pay
raises. The House has passed the bill saying that the government
had to make these payments. The other body has not seen fit to take
any action. The retirement fund was in desperate circumstances, and
the committee, in its wisdom, biding time to wait for the
legislative committee to act, put in the original bill to transfer
out of this $1,373,000,000 to the retirement fund of $142 million.
The $110 million involved here is $32 million under the original
budget request based upon these two items provided in the act. The
revenue foregone is covered in section (c), paragraph 2401:
There are authorized to be appropriated to the Postal
Service each year a sum determined by the Postal Service to be
equal to the difference between the revenues the Postal Service
would have received if sections 3217, 3403-3405, and 3626 of
this title and the Federal Voting Assistance Act of 1955 had
not been enacted and the estimated revenues to be received on
mail carried under such sections and Act.
What we are faced with here is going back to the beginning. We
are actually $32 million under what the original estimates were,
and also this is perfectly within the law and perfectly within the
original budget estimates of the committee, and it is under the
amount that they originally set, and I do not think there is any
way on earth that we can begin to say that this could be subject to
a point of order. . . .
The Chairman: The Chair is prepared to rule.
Section 2401(b)(1) authorizes certain sums for appropriations,
as the gentleman from Oklahoma points out, and the gentleman from
Iowa has recognized that with respect to this matter further sums
are authorized to be appropriated under section 2401(c) which
authorizes the appropriation ``to the Postal Service each year of a
sum determined by the Postal Service to be equal to the difference
between the revenues the Postal Service would have received'' under
certain circumstances and ``estimated revenues to be received on
mail carried under such sections and act.''
The provision carried in the bill is to cover the estimate that
was transmitted by the Postal Service.
The gentleman from Iowa makes the point that the estimate
transmitted by the Postal Service was not properly arrived at.
The Chair does not believe it is his responsibility or
privilege to go beyond the provisions printed in the bill and the
authorizing statute. As far as a reading of the bill and the
authorizing statute reveals to the Chair, the appropriation is
authorized, and the Chair overrules the point of order.
[[Page 5428]]
Citation of Generic Law
Sec. 10.8 A paragraph in a general appropriation bill purportedly
containing some funds not yet specifically authorized by separate
legislation was held not to violate Rule XXI clause 2 where it was
shown that all of the funds in the paragraph were authorized by
more general provisions of law currently applicable to the programs
in question.
On June 8, 1978,(11) during consideration in the
Committee of the Whole of the Departments of Labor and Health,
Education, and Welfare appropriation bill (H.R. 12929), a point of
order was overruled against the following provision:
---------------------------------------------------------------------------
11. 124 Cong. Rec. 16778, 95th Cong. 2d Sess.
---------------------------------------------------------------------------
The Clerk read as follows:
student assistance
For carrying out subparts 1 ($3,373,100,000), 2
($340,100,000), and 3 ($86,750,000) of part A, and parts C
($520,000,000) and E ($328,900,000) of Title IV of the Higher
Education Act, and, to the extent not otherwise provided, the
General Education Provisions Act, $4,675,750,000, of which
$4,651,350,000 shall remain available until September 30, 1980:
Provided, That amounts appropriated for basic opportunity
grants shall be available first to meet any insufficiencies in
entitlements resulting from the payment schedule for basic
opportunity grants published by the Commissioner of Education
during the prior fiscal year: Provided further, That pursuant
to section 411(b)(4)(A) of the Higher Education Act, amounts
appropriated herein for basic opportunity grants which exceed
the amounts required to meet the payment schedule published for
any fiscal year by 15 per centum or less shall be carried
forward and merged with amounts appropriated the next fiscal
year.
Mr. [R. Lawrence] Coughlin [of Pennsylvania]: Mr. Chairman, I
have a point of order. . . .
[D]uring the discussion of the rule on this bill, I asked if
there was money in this portion of the bill for the so-called
Middle Income Student Assistance Act. The distinguished chairman of
the subcommittee informed me that there indeed was money in the
bill for that act.
I indicated at that time that the Middle Income Student
Assistance Act was not authorized. In fact, the House specifically
refused to consider that act and has subsequently passed the
Tuition Tax Credit Act. I was informed that was not necessary
because this could be done under current law.
Mr. Chairman, the Middle Income Student Assistance Act is not
current law. If the Middle Income Student Assistance Act is current
law, why did the President propose it as a new program?
Mr. Chairman, the committee report says that this appropriation
is based on the House version of the Middle Income Student
Assistance Act and will expand student aid for middle income
students. It will not expand aid for
[[Page 5429]]
middle income students without increasing the middle income student
limitation, and there is no authorization for that.
Mr. Chairman, I would like to know whether the Middle Income
Student Assistance Act is or is not in existence and whether it is
or is not necessary, and I make the point of order that the $1.4
billion in this section that is for expanded aid to middle income
students is not authorized. . . .
Mr. [David R.] Obey [of Wisconsin]: . . . Mr. Chairman, let me
just point out that the Middle Income Student Assistance Act, which
has not yet passed, simply gives direction and makes certain
changes in an already existing program. The bill before us today
funds programs which are in existing law, and the gentleman's point
of order is, therefore, not well taken.
The Chairman: (12) The Chair is ready to rule.
---------------------------------------------------------------------------
12. Richard Bolling (Mo.).
---------------------------------------------------------------------------
The gentleman stated quite accurately that the report of the
committee on this appropriation bill indicated that the Middle
Income Student Assistance Act H.R. 11274 had not become law. It
also says, and I quote, on page 74:
Even though this legislation is still pending,
appropriations can be made under existing authority to expand
student aid for middle income students, as expressed in the
bill and accompanying report.
The Chair has had an opportunity to examine the report on H.R.
11274 and the basic law. This is Public Law 94-482, 94th Congress,
the Education Amendment of 1976.
Section 121, Part D, Student Assistance Basic Educational
Opportunity Grants, extends the authorizations of the basic act to
September 30, 1979.
Considering all of the authorizations for fiscal 1979 under
part D--Student Assistance--together, it would appear that the
funds in the paragraph in question are authorized.
Therefore, the Chair believes that the Committee is correct in
its view that there is extant authorization justifying this
appropriation, and he overrules the point of order.
Reorganization Plan
Sec. 10.9 While an Executive order creating a federal office cannot,
standing alone, be considered authority in law for appropriations
for that office, a reorganization plan from which that office
derives may be cited by the Committee on Appropriations to support
such an appropriation.
On June 21, 1974,(13) during consideration in the
Committee of the Whole of the Department of Agriculture and environment
and consumer protection appropriation bill (H.R. 15472), a point of
order was overruled as indicated below:
---------------------------------------------------------------------------
13. 120 Cong. Rec. 20595, 20596, 93d Cong. 2d Sess.
---------------------------------------------------------------------------
Mr. [Robert E.] Bauman [of Maryland]: Mr. Chairman, I have a
point of order pertaining to title IV on page 45, lines 9 through
14, under the title ``Consumer Programs, Department of
[[Page 5430]]
Health, Education, and Welfare, Office of Consumer Affairs'' on the
ground that it violates rule XXI, clause 2, in that there is no
existing statutory authority for this office, and I cite as
authority the fact that last year this same point of order was made
and the Chair ruled that there was no existing authority. . . .
Mr. [Jamie L.] Whitten [of Mississippi]: . . . It is pointed
out on page 967 of the hearings that we had submitted the report
from the Department of HEW, dated March 21, 1974, in which they
cite:
Reorganization Plan No. 1 of 1953 provides in pertinent
part: ``In the interest of economy and efficiency the Secretary
may from time to time establish central . . . services and
activities common to the several agencies of the Department . .
.'' (section 7).
Later this report says:
The office of Consumer Affairs, they include policy
guidance responsibility respecting the relationship of all of
the statutes of the Department to the consumer interest.
So this agency is in line with the Reorganization Plan No. 1 of
1953 which was approved and authorized by the Congress, and for
that reason it is within the authorization of the law.
The Chairman: (14) Could the gentleman from
Mississippi give us the statutory citation for this office?
---------------------------------------------------------------------------
14. Sam Gibbons (Fla.).
---------------------------------------------------------------------------
Mr. Whitten: It is Reorganization Plan No. 1 of 1953.
Mr. [John D.] Dingell [of Michigan]: Mr. Chairman, I would
point out that the Appropriations Committee only has authority, and
I would say my good friend, the gentleman from Mississippi, is one
of the most wise and able Members of this body and he is well aware
of the fact that the reorganization plans are not statutory in
effect and do not confer the authority on the executive branch to
procure and expend appropriated funds. They do not constitute an
authorization and, therefore, even though there is a reorganization
plan in being it does not constitute the basis upon which the
committee may predicate appropriations.
The Chairman: Last year when this same point was raised, the
authority that was cited was an Executive order. The Chair will
state that a reorganization plan--which was not cited as authority
on June 15, 1973--once it has become effective, has the effect of
law and of statute and, therefore, the point of order would have to
be overruled.
Mr. Dingell: Mr. Chairman, if the Chair will permit me further,
the gentleman does not cite the Reorganization Act. He recites a
reorganization plan which is very different from a Reorganization
Act.
The Chairman: The Chair understands that if the reorganization
plan has become effective, if it was not rejected by the Congress
within the time provided, it has the effect of a statute. . . .
The Chair overrules the point of order. The Chair has examined
the law and is citing from title V, United States Code, section
906, which prescribes the procedure by which a reorganization plan
does become effective. It is clear to the Chair that Reorganization
Plan No. 1 of 1953 has the effect of law, and therefore, the point
of order is overruled.
[[Page 5431]]
Executive Order
Sec. 10.10 Pursuant to Rule XXI clause 2 and 36 USC Sec. 673,
commissions and councils must have been established by law--and not
merely by Executive order--prior to the expenditure of federal
funds therefor.
On June 25, 1974,(15) during consideration in the
Committee of the Whole of the Department of Treasury, Postal Service,
and Executive Office appropriation bill (H.R. 15544), a point of order
was sustained as indicated below:
---------------------------------------------------------------------------
15. 120 Cong. Rec. 21036, 21037, 93d Cong. 2d Sess.
---------------------------------------------------------------------------
The Chairman: (16) The Clerk will read.
---------------------------------------------------------------------------
16. B. F. Sisk (Calif.).
---------------------------------------------------------------------------
The Clerk read as follows:
For necessary expenses, including services as authorized by
5 U.S.C. 3109 . . . not to exceed $2,500 for official reception
and representation expenses; and advances or reimbursements to
applicable funds of the Commission and the Federal Bureau of
Investigation for expenses incurred under Executive Order 10422
of January 9, 1953, as amended; $90,000,000 together with not
to exceed $18,698,000 for current fiscal year administrative
expenses for the retirement and insurance programs to be
transferred from the appropriate trust funds of the Commission
in amounts determined by the Commission without regard to other
statutes: Provided, That the provisions of this appropriation
shall not affect the authority to use applicable trust funds
for administrative expenses of effecting statutory annuity
adjustments. . . .
Mr. [Charles A.] Vanik [of Ohio]: Mr. Chairman, I make a point
of order on the language beginning at line 12 on page 12 of this
bill with the figures ``$90,000,000'' through line 20 ending in the
word ``adjustments.''. . .
Mr. Chairman, it is my understanding that there is in fact no
authorization for the President's Commission on Personnel
interchange for which $353,000 is herein requested. It was created
solely by Executive Order 11451 on January 19, 1969.
This House rule is supported in this regard by title 36 of the
United States Code, section 673, which also indicates that no funds
should be expended by this body without authorization. The full
section of the law reads as follows:
Title 36, Section 673
No part of the public monies, or of any appropriation made
by Congress, shall be used for the payment of compensation or
expenses of any commission, council or other similar body, or
any members thereof, or for expenses in connection with any
work or the results of any work or action of commission,
council, board, or similar body, unless the creation of the
same shall be or shall have been authorized by law; nor shall
there be employed any detail hereafter or heretofore made or
otherwise personal services from any Executive Department or
other Government establishment in connection with any such
commission, council, board, or similar body. . . .
The Chairman: Does the gentleman from Oklahoma desire to be
heard on the point of order?
[[Page 5432]]
Mr. [Tom] Steed [of Oklahoma]: Mr. Chairman, we concede the
point of order.
The Chairman: The gentleman from Oklahoma (Mr. Steed) concedes
the point of order.
The point of order is sustained.
Requirement of Annual Authorization Superceding Organic Law
Sec. 10.11 Pursuant to law (22 USC Sec. 2680(a)(1)), no funds shall be
available to the Department of State for obligation or expenditure
unless the appropriation thereof has been authorized by law enacted
after February 1972 (thus requiring specific subsequently enacted
authorizations for both the direct operations of that Department
and related functions delegated to it by laws enacted prior to that
date, and not permitting appropriations under Rule XXI clause 2 to
be authorized by the ``organic statute'' or other laws earlier
authorizing appropriations for related activities); accordingly
several appropriations not specifically authorized as required were
conceded to be subject to a point of order.
On June 14, 1978,(17) appropriations in a general
appropriation bill for the Department of State, including salaries and
expenses, representation allowances, expenses under the Foreign
Services Buildings Act, special foreign currency program, emergencies
in the diplomatic and consular service, retirement and disability fund,
international conferences, international peacekeeping activities,
missions to international organizations, international conferences and
contingencies, international trade negotiations, international
commissions, construction, and general provisions, no authorizations
for such appropriations having been enacted for the fiscal year in
question as specifically required by law, were conceded to be
unauthorized and were ruled out as in violation of Rule XXI clause 2.
The proceedings are discussed further in Sec. 17.21, infra. See also
Sec. 17.19, infra, discussing unauthorized funds for the Board for
International Broadcasting. The Board, having been established
independently of the Department of State, was not subject to the
provisions of 22 USC Sec. 2680(a).
---------------------------------------------------------------------------
17. 124 Cong. Rec. 17616, 17617, 17620, 95th Cong. 2d Sess.
---------------------------------------------------------------------------
Parliamentarian's Note: Similarly, pursuant to law (Public Law
[[Page 5433]]
No. 94-503, Sec. 204) all appropriations for the Department of Justice
and related agencies and bureaus are deemed unauthorized for fiscal
1979 and subsequent fiscal years unless specifically authorized for
each fiscal year, and the creation of any subdivision in that
department or the authorization of any activity therein, absent
language specifically authorizing appropriations for a fiscal year, is
not deemed sufficient authorization. Accordingly, on June 14,
1978,(18) appropriations for the Department of Justice and
related agencies for fiscal 1979 were conceded to be unauthorized
(except for certain agencies for which appropriations had been
authorized by separate law).
---------------------------------------------------------------------------
18. 124 Cong. Rec. 17622-24, 95th Cong. 2d Sess.
---------------------------------------------------------------------------