[Deschler's Precedents, Volume 8, Chapter 26]
[Chapter 26. Unauthorized Appropriations; Legislation on Appropriation Bills]
[C. Provisions as "Changing Existing Law," Generally]
[§ 29. Transfer of Funds Within Same Bill]
[From the U.S. Government Publishing Office, www.gpo.gov]
[Page 5729-5740]
CHAPTER 26
Unauthorized Appropriations; Legislation on Appropriation Bills
C. PROVISIONS AS ``CHANGING EXISTING LAW,'' GENERALLY
Sec. 29. Transfer of Funds Within Same Bill
Transfers of appropriations within the confines of the same bill
are normally considered in order on a general appropriation bill if not
accompanied by legislative
language. -------------------
Bestowing New Authority on Bureau of the Budget
Sec. 29.1 Language in a general appropriation bill authorizing the
Secretary of Labor to allot or transfer, with the approval of the
Director of the Budget, funds from a certain appropriation in the
bill to any bureau of the Department of Labor, to enable such
agency to perform certain services, was held to be legislation and
not in order on a general appropriation bill.
On Jan. 20, 1939,(3) the Committee of the Whole was
considering H.R. 2868, a deficiency appropriation bill. The Clerk read
a paragraph providing an appropriation for the Department of Labor,
Wage and Hour Division, which contained the following proviso:
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3. 84 Cong. Rec. 591, 592, 76th Cong. 1st Sess.
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Provided, That the Secretary of Labor may allot or transfer,
with the approval of the Director of the Bureau of the Budget,
funds from this appropriation to any bureau or office of the
[[Page 5730]]
Department of Labor to enable such agency to perform services for
the Wage and Hour Division.
Mr. [John] Taber [of New York]: Mr. Chairman, I make a point of
order against the proviso beginning in line 3, page 5, and
including the rest of the section on the ground that it is
legislation on an appropriation bill that imposes additional duties
upon the Bureau of the Budget.
The Chairman: (4) Does the gentleman from Virginia
desire to be heard on the point of order?
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4. Wall Doxey (Miss.).
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Mr. [Clifton A.] Woodrum of Virginia: No.
The Chairman: The Chair sustains the point of order.
In General; Permissive Authority to Transfer Indefinite Amount
Sec. 29.2 On one occasion, a provision in a general appropriation bill
which permitted the transfer to an appropriation therein of amounts
contained in other items in that bill, while not constituting a
reappropriation proscribed by Rule XXI clause 6 (then clause 5),
was conceded to be in violation of the rules (as legislative in
character) and was therefore ruled out on a point of order.
On June 4, 1971,(5) during consideration in the
Committee of the Whole of the legislative branch appropriation bill
(H.R. 8825), a point of order was raised against the following
provision:
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5. 117 Cong. Rec. 18039, 92d Cong. 1st Sess.
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Government Contributions
For contributions to employees life insurance fund, retirement
fund, and health benefits fund, as authorized by law, $5,245,000,
and in addition, such amount as may be necessary may be transferred
from the preceding appropriation for ``miscellaneous items''.
Mr. [H. R.] Gross [of Iowa]: Mr. Chairman, I make a point of
order against the language to be found on page 6, line 7, after the
figure ``$5,245,000.'' It is this language:
And in addition, such amount as may be necessary may be
transferred from the preceding appropriation for
``miscellaneous items''.
Mr. Chairman, I make a point of order against this language on
the grounds that it is legislation on an appropriation bill.
The Chairman: (6) Does the gentleman from Alabama
desire to be heard on the point of order?
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6. John M. Murphy (N.Y.).
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Mr. [George W.] Andrews of Alabama: Mr. Chairman, I will say to
the gentleman from Iowa this is merely a facilitating provision.
This is an amount that must be paid. It is subject to a point of
order, but it is going to be paid one way or the other, because it
is provided by law for Government contributions. We have no way of
determining precisely what amount will be needed.
Some Members have 15 employees. Some have 16. Some have four or
five.
[[Page 5731]]
Regardless of the amount, it has to be paid.
Mr. Gross: Then I submit, Mr. Chairman, the Members of the
House have no way of knowing what constitutes ``miscellaneous
items.''
Mr. Andrews of Alabama: It refers to the ``preceding
appropriation for `miscellaneous items'.'' This is transfer
authority. That is what it amounts to.
Does the gentleman insist on his point of order?
Mr. Gross: Yes, Mr. Chairman; I insist on the point of order.
Mr. Andrews of Alabama: Mr. Chairman, we concede the point of
order.
The Chairman: Does the gentleman from Alabama concede the point
of order?
Mr. Andrews of Alabama: We do, Mr. Chairman.
The Chairman: The point of order is sustained.
Transfer of Funds to Account in Bill
Sec. 29.3 A provision in an appropriation bill that the Secretary may
transfer funds, from appropriations available for authorized
activities of the Department of Agriculture, for use in formulating
programs for such authorized activities, was held in order.
On Mar. 25, 1939,(7) the Committee of the Whole was
considering H.R. 5269, an Agriculture Department appropriation bill.
Proceedings were as follows:
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7. 86 Cong. Rec. 3306, 3307, 76th Cong. 1st Sess. Admistinction may be
made between actual permissible transfer of funds and the
conferral of a general discretionary authority to make
transfers which might be impermissible if having reference to
transfer of funds not contained within the same bill.
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Economic investigations: For acquiring and diffusing useful
information among the people of the United States, and for aiding
in formulating programs for authorized activities of the Department
of Agriculture, relative to agricultural production, distribution,
land utilization, and conservation in their broadest aspects,
including farm management and practice, utilization of farm and
food products, purchasing of farm supplies, farm population and
rural life, farm labor, farm finance, insurance and taxation,
adjustments in production to probable demand for the different farm
and food products; land ownership and values, costs, prices, and
income in their relation to agriculture, including causes for their
variations and trends, $839,100: Provided, That the Secretary may
transfer to this appropriation from the funds available for
authorized activities of the Department of Agriculture such sums as
may be necessary for aiding in formulating programs for such
authorized activities, including expenditures for employment of
persons and means in the District of Columbia and elsewhere. . . .
Mr. [John] Taber [of New York]: Mr. Chairman, I renew the point
of order [that the provision] is legislation
[[Page 5732]]
upon an appropriation bill and a delegation to the Secretary of
authority to transfer funds, and delegates to or requires of the
Secretary of Agriculture additional duties in violation of the
rules. . . .
Mr. [Clarence] Cannon of Missouri: Mr. Chairman, no funds are
affected here except funds which have been appropriated by
Congress, and the Secretary of Agriculture under the terms of the
organic law is authorized to administer the Department, and he may,
as administrator of that Department at any time transfer such funds
from one activity to another. The point of order is not well taken,
Mr. Chairman, the appropriation is for the use of the Secretary of
Agriculture in the discharge of his official duties, as provided by
law. . . .
The Chairman: (8) . . . The first point of order
made by the gentleman from New York [Mr. Taber] is overruled
because an examination of section 511 of title 5 of the United
States Code discloses that it is certainly in order. The last part
is related to the transfer of funds. The Chair quotes from Cannon's
Precedents, volume VII, section 1470, the following:
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8. Wright Patman (Tex.).
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A proposition to transfer funds from one department of the
Government to another for purposes authorized by law was held
not to involve legislation and to be in order in an
appropriation bill.
The gentleman makes the point of order that it is legislation
in an appropriation bill. The point of order is overruled.
Granting Transfer Authority
Sec. 29.4 Language in the District of Columbia appropriation bill
authorizing the commissioners to transfer money from a specific
appropriation to another appropriation was held to be legislative
in nature and not in order on an appropriation bill.
On Apr. 2, 1937,(9) during consideration in the
Committee of the Whole of the District of Columbia appropriation bill,
a point of order was raised against the following provision:
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9. 81 Cong. Rec. 3108, 3109, 75th Cong. 1st Sess.
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The Clerk read as follows:
Police Court
Salaries: For personal services, $107,030: Provided That
upon occupancy of the new police court building the
Commissioners are authorized to transfer such part of this
appropriation for payment of custodial employees as may be
necessary to the appropriation in this act for ``Care of the
District Buildings.''--
Mr. [Jack] Nichols [of Oklahoma]: Mr. Chairman, I make the
point of order on the language contained in the paragraph beginning
in line 22 of page 48, after the ``$107,030'', which reads:
Provided, That upon occupancy of the new police court
building the Commissioners are authorized to transfer such part
of this appropriation for payment of custodial employees as may
be necessary to the appropriation in this act for ``Care of the
District buildings''--
That it is legislation and changes existing law. . . .
[[Page 5733]]
The Chairman: (10) Does the gentleman from
Mississippi desire to be heard on the point of order?
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10. Jere Cooper (Tenn.).
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Mr. [Ross A.] Collins [of Mississippi]: I do not, Mr. Chairman.
The Chairman: The gentleman from Oklahoma makes a point of
order against the proviso on page 48, line 22, which reads:
Provided, That upon occupancy of the new police-court
building the Commissioners are authorized to transfer such part
of this appropriation for payment of custodial employees as may
be necessary to the appropriation in this act for ``Care of the
District buildings.''
This provision seeks to authorize the Commissioners of the
District of Columbia to transfer funds appropriated for one
specific purpose to another purpose, and, apparently, seeks also to
impose an additional duty on the Commissioners. Therefore, it is
legislation on a general appropriation bill, and the Chair sustains
the point of order.
Limiting Amounts Transferred Within Accounts in Bill
Sec. 29.5 A general provision in an appropriation bill permitting
transfers of sums appropriated therein from one subhead to another
in the same enactment was held not to constitute legislation.
On June 29, 1959,(11) during consideration in the
Committee of the Whole of a supplemental appropriation bill (H.R.
7978), a point of order was raised against the following provision:
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11. 105 Cong. Rec. 12131, 86th Cong. 1st Sess.
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The Clerk read as follows:
General Provisions
Not to exceed 5 per centum of any appropriation made
available to the National Aeronautics and Space Administration
by this Act may be transferred to any other such appropriation,
but the ``Salaries and expenses'' appropriation shall not be
thereby increased.
Mr. [H. R.] Gross [of Iowa]: Mr. Chairman, a point of order.
The Chairman: (12) The gentleman will state it.
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12. Paul J. Kilday (Tex.).
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Mr. Gross: Mr. Chairman, I make a point of order against the
language on page 5, lines 17 to 21, inclusive, as being legislation
on an appropriation bill.
The Chairman: Does the gentleman from Texas desire to be heard
on the point of order?
Mr. [Albert] Thomas [of Texas]: Yes, Mr. Chairman. We think
this is not legislation. It refers entirely to funds within this
bill. It starts off as a limitation and applies only to funds in
this bill.
Mr. [Ben F.] Jensen [of Iowa]: Mr. Chairman, will the gentleman
yield?
Mr. Thomas: I yield to my friend from Iowa.
Mr. Jensen: This is nothing more nor less than a limitation on
an appropriation bill.
The Chairman: The Chair is prepared to rule. The gentleman from
[[Page 5734]]
Iowa [Mr. Gross] makes a point of order against that portion of the
bill appearing on page 5, lines 17 through 21, that it constitutes
legislation on an appropriation bill. It appears to the Chair that
the transfer applies to funds only within this bill, that it is not
legislation on an appropriation bill, and overrules the point of
order.
Sec. 29.6 An amendment to a title of an appropriation bill providing
that not to exceed five percent of any appropriation in the title
may be transferred to any other appropriation therein, but no such
appropriation shall be increased by more than five percent by any
such transfer was held not to constitute legislation.
On Apr. 25, 1950,(13) the Committee of the Whole was
considering H.R. 7786, the Labor Department and Federal Security Agency
chapter of the general appropriation bill for 1951. The Clerk read as
follows:
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13. 96 Cong. Rec. 5732, 81st Cong. 2d Sess.
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Amendment offered by Mr. [John E.] Fogarty [of Rhode Island]:
On page 124, line 13, insert ``Sec. 106. Not to exceed 5 percent of
any appropriation in this title may be transferred to any other
such appropriation, but no such appropriation shall be increased by
more than 5 percent by any such transfer: Provided, That no such
transfer shall be used for creation of new functions within the
Department.''
Mr. [John] Taber [of New York]: Mr. Chairman, a point of order.
The Chairman: (14) The gentleman will state it.
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14. Jere Cooper (Tenn.).
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Mr. Taber: Mr. Chairman, this is legislation upon an
appropriation bill in that it gives authority to somebody else to
perform a budgetary act in a department. It goes beyond the pale of
a direct appropriation or a limitation and it gives authority to
the department to transfer funds. That authority does not exist
without this language and it is clearly a delegation of additional
duties to the department that do not already exist. . . .
The Chairman: The Chair is prepared to rule. The gentleman from
Rhode Island has offered an amendment which has been reported. The
gentleman from New York has made a point of order against the
amendment on the ground that it is legislation on an appropriation
bill in violation of the rules of the House.
The Chair has examined the amendment offered by the gentleman
from Rhode Island and has listened to the argument presented by the
gentleman from New York. The Chair is of the opinion that the
language contained in this amendment does not constitute
legislation, and invites attention to section 1468 of Cannon's
Precedents, volume 7, in which it is stated:
A proposition to transfer a sum previously appropriated
from one subhead to another in the same enactment was held not
to constitute legislation.
There are quite a number of decisions cited in approval of that
holding.
[[Page 5735]]
Therefore the Chair overrules the point of order.
29.7 Language in a general appropriation bill permitting
appropriations to be used interchangeably among several offices
with approval of the Bureau of the Budget provided that no office
exceed the amount appropriated for it by more than a designated
percentage, was held to be legislative in character.
On Mar. 16, 1945,(15) during consideration in the
Committee of the Whole of a general appropriation bill (H.R. 2603), a
point of order was raised against the following provision, and
proceedings ensued as indicated below:
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15. 91 Cong. Rec. 2353, 79th Cong. 1st Sess.
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Not to exceed 5 percent of the foregoing appropriations for
personal services shall be available interchangeably, subject to
the approval of the Bureau of the Budget, for expenditures in the
various offices and divisions named, but not more than 5 percent
shall be added to the amount appropriated for any one of said
offices or divisions and any interchange of appropriations
hereunder shall be reported to Congress in the annual Budget, and
not to exceed $250,000 of said appropriations shall be available
for the employment, on duties properly chargeable to each of said
appropriations, of special assistants to the Attorney General
without regard to the Classification Act of 1923, as amended.
Mr. [Robert F.] Jones [of Ohio]: Mr. Chairman, I make a point
of order against the language on page 36 beginning with line 23 and
continuing to the end of the page, and on page 37, the first 10
lines, inclusive, on the ground that it is legislation on an
appropriation bill not provided for by law.
Mr. [Louis C.] Rabaut [of Michigan]: Mr. Chairman, I concede
the point of order. It has been in the bill for many years,
however.
The Chairman: (16) The point of order is sustained.
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16. Wilbur D. Mills (Ark.).
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Parliamentarian's Note: The language in this paragraph giving
approval authority to the Bureau of the Budget, requiring reporting to
Congress, and waiving the Classification Act of 1923 was clearly
legislation.
Interchange of Appropriations
Sec. 29.8 Language in an appropriation bill permitting interchange of
appropriations in the bill for purposes authorized by law was in
order on an appropriation bill.
On Mar. 28, 1939,(17) the Committee of the Whole was
considering H.R. 5269, an Agriculture
[[Page 5736]]
Department appropriation bill. The Clerk read as follows:
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17. 84 Cong. Rec. 3458, 3459, 76th Cong. 1st Sess.
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Interchange of Appropriations
Not to exceed 5 percent of the foregoing amounts for the
miscellaneous expenses of the work of any bureau, division, or
office herein provided for shall be available interchangeably for
expenditures on the objects included within the general expenses of
such bureau, division, or office, but not more than 5 percent shall
be added to any one item of appropriation except in cases of
extraordinary emergency.
Mr. [John] Taber [of New York]: Mr. Chairman, I make the point
of order against the paragraph that it is legislation on an
appropriation bill and delegates authority and requires the
performance of further duties on the part of the Secretary of
Agriculture.
Mr. [Clarence] Cannon of Missouri: Mr. Chairman, the Chair
ruled on that point of order when a similar provision was before
the Committee Friday.
The Chairman: (18) On a number of occasions a
similar point of order has been overruled. The Chair overrules the
point of order.
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18. Wright Patman (Tex.).
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Restrictions on Transfers Between Accounts in Paragraph
Sec. 29.9 A provision restricting the amount which could be transferred
between accounts under that paragraph was held in order as a
limitation.
On Aug. 1, 1973,(19) during consideration in the
Committee of the Whole of a general appropriation bill (H.R. 9590), a
point of order was raised against the proviso in the following
paragraph:
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19. 119 Cong. Rec. 27288, 27289, 93d Cong. 1st Sess.
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Property Management and Disposal Service
operating expenses
For expenses, not otherwise provided for, necessary for
carrying out the functions of the Administrator with respect to
the utilization of excess property; the disposal of surplus
property; the rehabilitation of personal property . . . the
supplemental stockpile established by section 104(b) of the
Agricultural Trade Development and Assistance Act of 1954 (68
Stat. 456, as amended by 73 Stat. 607); including services as
authorized by 5 U.S.C. 3109 and reimbursement for security
guard services, $33,000,000, to be derived from proceeds from
transfers of excess property, disposal of surplus property, and
sales of stockpile materials . . . Provided further, That none
of the funds available under this heading shall be available
for transfer to any other account nor for the funding of any
activities other than those specifically authorized under this
heading.
Mr. [John D.] Dingell [of Michigan]: Mr. Chairman, a point of
order.
The Chairman: (20) The gentleman will state it.
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20. Richard Bolling (Mo.).
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After points of order had been conceded with respect to other
language in the paragraph (omit
[[Page 5737]]
ted here),(1) the following colloquy occurred:
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1. Points of order were directed against provisions in a paragraph of
the appropriation bill (1) authorizing the General Services
Administration to acquire lease-hold interests in property; (2)
removing limitations imposed by law on the value of surplus
strategic materials which may be transferred without
reimbursement to the national stockpile; and (3) authorizing
materials in certain stockpiles and inventories to be available
without reimbursement for transfer to contractors as payment
for expenses. These provisions were conceded to be legislation
and were stricken from the bill.
See Sec. 38.7, infra, for more detailed treatment of the
points of order.
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Mr. [Thomas J.] Steed [of Oklahoma]: Mr. Chairman, the points
of order made against the language are conceded down to line 7,
page 23, but the language of that ``Provided further,'' is a simple
limitation on an appropriation bill and is not subject to a point
of order.
The Chairman: The Chair agrees with the gentleman from
Oklahoma.
The various points of order that are conceded are sustained,
and that language is stricken. The language:
Provided further, That none of the funds available under
this heading shall be available for transfer to any other
account nor for the funding of any activities other than those
specifically authorized under this heading.
Which is a proper limitation and appears beginning in line 7,
page 23, through line 10, remains in the bill, since the point of
order has not been made against the entire paragraph.
Unallocated Funds in Pending Bill
Sec. 29.10 To a general appropriation bill making appropriations for
certain public works, an amendment providing that a particular
authorized project should be financed out of ``any available
unallocated funds contained in this act'' was held to be in order.
On June 5, 1959,(2) during consideration in the
Committee of the Whole of a bill (H.R. 7509), making appropriations for
the civil functions of the Department of the Army, a point of order was
raised against the following amendment:
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2. 105 Cong. Rec. 10054, 10055, 86th Cong. 1st Sess.
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Mr. [Robert L.F.] Sikes [of Florida]: Mr. Chairman, I offer an
amendment.
The Clerk read as follows:
Amendment offered by Mr. Sikes: On page 4, line 16, strike
out the period, add a semicolon and the words ``Provided
further, That the improvement of the Escambra River, Fla.,
according to authorized specification may be undertaken with
any available unallocated funds contained in this act.'' . . .
Mr. [John] Taber [of New York]: Mr. Chairman, I make the point
of order against the amendment that it
[[Page 5738]]
changes existing law. It attempts to control funds that have been
appropriated in previous acts in a way that is different from the
way those acts now stand and as those old appropriations stood.
The Chairman: (3) The Chair would like to be
informed as to whether or not the particular project referred to in
the amendment offered by the gentleman from Florida is authorized
by law.
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3. Hale Boggs (La.).
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Mr. Taber: That I do not know.
Mr. Sikes: May I respectfully state, Mr. Chairman, that the
project is authorized by law. It was carried in the last rivers and
harbors omnibus bill, which was signed by the President, and I am
informed the number of that law is 500 of the 85th Congress. I
further point out that this is permissive and as such would not
constitute legislation upon an appropriation bill.
Mr. Taber: The previous act carried a provision ``to remain
available until expended.'' This particular amendment would mean
that they would be using it for something that was not in the
original bill, and that would result in a change in existing law
That is the idea that I had in making the point of order.
The Chairman: The Chair is prepared to rule.
Apparently the gentleman from New York is not making the point
of order on whether or not the project is authorized. The Chair has
been informed by the gentleman from Florida that the project is
authorized by law.
Insofar as the point of order made by the gentleman from New
York is concerned, the Chair overrules the point of order because
this language is quite specific in that it makes available
unallocated funds contained in this act, the act now being debated
before the committee, and does not affect heretofore made
appropriations.
Discretionary Transfer of Funds
Sec. 29.11 Language in an appropriation bill making an appropriation
for specific objects ``together with such amounts (transferred)
from other appropriations . . . as may be determined by the
Secretary,'' was held to be legislation on an appropriation bill
and not in order.
On May 17, 1951,(4) during consideration in the
Committee of the Whole of the Agriculture Department appropriation bill
(H.R. 3973), a point of order was raised against the following
provision:
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4. 97 Cong. Rec. 5468, 5469, 82d Cong. 1st Sess.
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The Clerk read as follows:
Office of Information
For necessary expenses in connection with the publication .
. . and distribution of bulletins, documents, and reports, the
preparation, distribution, and display of agricultural motion
and sound pictures . . . and the coordination of informational
work and programs authorized by Congress in the Department,
$1,271,000, together with such
[[Page 5739]]
amounts from other appropriations or authorizations as are
provided in the schedules in the budget for the current fiscal
year for such expenses, which several amounts or portions
thereof, as may be determined by the Secretary, not exceeding a
total of $16,200, shall be transferred to and made a part of
this appropriation, of which total appropriation amounts not
exceeding those specified may be used for the purposes
enumerated as follows: For preparation and display of exhibits,
$104,725. . . .
Mr. [Kenneth B.] Keating [of New York]: Mr. Chairman, I make a
point of order against the language in lines 4 to 9, inclusive,
page 46, on the ground that it involves additional duties on the
part of the Secretary of Agriculture.
The Chairman: (5) Does the gentleman from
Mississippi care to be heard on the point of order?
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5. Aime J. Forand (R.I.).
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Mr. [Jamie L.] Whitten [of Mississippi]: Mr. Chairman, we
concede the point of order.
The Chairman: The point of order is sustained.
Transfer With Approval of Committee on Appropriations
Sec. 29.12 A paragraph in a general appropriation bill authorizing the
transfer of funds within an appropriation for allowances and
expenses, with the approval of the Committee on Appropriations, was
conceded to constitute legislation in violation of Rule XXI clause
2 and was stricken from the bill on a point of order.
On Mar. 16, 1977,(6) during consideration in the
Committee of the Whole of H.R. 4877 (supplemental appropriation bill),
a point of order was sustained against a provision in the bill, as
follows:
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6. 123 Cong. Rec. 7747, 95th Cong. 1st Sess.
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The Clerk read as follows:
Such amounts as deemed necessary for the payment of
allowances and expenses within this appropriation may be
transferred among accounts upon approval of the Committee on
Appropriations of the House of Representatives.
Mr. [Robert E.] Bauman [of Maryland]: Mr. Chairman, I make a
point of order against the language on page 29, lines 17 through
20, inclusive, on the grounds that the language as it is written
constitutes legislation on an appropriation bill.
In previous instances where an appropriation bill has contained
similar language--and I emphasize the word ``similar''--the Chair
has held that it is permissible to allow language that would
transfer appropriations from one subhead to another in the same
enactment.
The language before us, if it is read carefully, makes it
rather clear that what is being permitted is the transfer of
amounts, and they may be transferred, as the language says, among
accounts upon approval.
It is not in fact an authorization to transfer amongst the
various moneys in this bill, but in fact could be used to
[[Page 5740]]
authorize the transfer of previously appropriated amounts not in
this bill.
Therefore, it exceeds the authority of the committee to in fact
consider it. . . .
Mr. [George E.] Shipley [of Illinois] . . . The committee will
concede the point of order.
The Chairman: (7) The gentleman from Illinois [Mr.
Shipley] concedes the point of order. Therefore, the Chair sustains
the point of order raised by the gentleman from Maryland [Mr.
Bauman] and the language is stricken from the bill.
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7. Walter Flowers (Ala.).
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