Deschler's Precedents, Volume 8, Chapter 26 - § 53. Duties Imposed on Nonfederal Officials or Parties

[Deschler's Precedents, Volume 8, Chapter 26]
[Chapter 26. Unauthorized Appropriations; Legislation on Appropriation Bills]
[E. Provisions as Changing Existing Law; Provisions Affecting Executive Authority; Imposition of New Duties on Officials]
[§ 53. Duties Imposed on Nonfederal Officials or Parties]
[From the U.S. Government Publishing Office, www.gpo.gov]

[Page 6119-6137]

CHAPTER 26

Unauthorized Appropriations; Legislation on Appropriation Bills

E. PROVISIONS AS CHANGING EXISTING LAW: PROVISIONS AFFECTING
EXECUTIVE AUTHORITY; IMPOSITION OF NEW DUTIES ON OFFICIALS

Sec. 53.--Duties Imposed on Nonfederal Officials or Parties

It has been seen that the inclusion in an appropriation bill of
language that imposes new duties, not authorized in law, on federal
officials is subject to the point of order that such language is
impermissible legislation.⁽²⁰⁾ A more difficult question
arises where language seems to impose new duties on nonfederal
officials or on private individuals. Whether the mere imposition of
certain duties on such parties, without more, constitutes an
impermissible attempt to legislate, does not clearly emerge from the
precedents. Many cases which seem to decide the question appear, on
closer analysis, to turn on somewhat different issues, express or
implied; perhaps such cases can be better understood if they are
analyzed in terms of certain issues that were

[[Page 6120]]

implied or assumed in the debate, even if the final ruling was not
expressly based thereon. The purpose of this section is to address
these implied issues and to address the apparent inconsistencies in the
precedents, and to suggest guidelines for future decisions.
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20. See Sec. 52, supra.
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It will be noted that, in several precedents that involve local
officials and address the issue directly, the assumption is made in the
debate and in the ruling that the test of whether the language in
question is permissible is whether it seeks to impose duties on
officials who are in fact ``federal.'' ⁽¹⁾ In some
precedents of this kind, an attempt is made to endow a local official
or private person with status as a ``federal'' official by virtue of
his role in receiving, disbursing, or administering federal funds or
otherwise participating in some manner in the federal program under
discussion. If such entity can in fact be seen as having federal
status, the resolution of the issues becomes easier because the rulings
discussed above ⁽²⁾ are directly applicable.
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1. See Sec. Sec. 53.4 and 53.5, infra; and see the ruling of June 23,
1971, discussed in the ``Note on Contrary Rulings'' which
follows Sec. 53.6, infra.
2. Sec. 52, supra.
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Attempts to impose duties on local officials not having the status
of direct or indirect beneficiaries would in some cases ``change
existing law'' by violating fundamental division between state and
federal authority. In most cases, the ``local officials'' arguably have
the status of direct or indirect beneficiaries of federal funding
programs. The question then arises of the applicability of the many
precedents indicating that ``limitations'' are allowed which seek only
to require such beneficiaries to undertake certain actions or fulfill
certain requirements as a condition to receiving the benefits of the
federal funds. Such provisions, if they do no more than to describe the
qualifications of persons who are to benefit from federal funds, are
frequently allowed in appropriation bills.
The fundamental issue to be addressed in many cases is not the
status, federal or local, of the official on whom duties are imposed
but whether the imposition of the duties violates some substantive
legislative intent, already existing, with respect to the division
between local or state and federal roles in the administering of
federal funds. It should be noted here that in one
instance,⁽³⁾ the argu

[[Page 6121]]

ment was made in support of a point of order, that issues involved in
the provisions of the appropriation bill in question had in fact been
considered in committee as part of the process of devising the
authorizing legislation, and the substance of the language in the
appropriation bill had been rejected. In that instance, the Chair
overruled the point of order, thereby rejecting the suggestion that the
provisons of the appropriation bill were matters of substantive
legislation. In the current status of rulings on the subject, however,
the Chair would probably be more likely to consider evidence that the
subject matter of proposed language either was in fact taken into
consideration during the deliberations of a legislative committee, or
is the type of substantive issue which should be addressed by such a
committee.
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3. See the comments in the ``Note on Contrary Rulings,'' following
Sec. 53.6, infra, with respect to the proceedings of Oct. 14,
1965.
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In any event, it would appear useful in future rulings on the
issues raised in this section, to focus attention less on the fact that
officials on whom duties are sought to be imposed are ``local'' and
inquire instead whether such imposition of duties violates the intent
of existing law with respect to a substantive plan for a division of
state and federal responsibility, taking the purposes of existing
legislation into account. If not, the issue would then be whether the
language in question constituted a permissible or impermissible attempt
to attach conditions to be met by prospective direct or indirect
beneficiaries of funds before they become entitled to the benefits of
the funds. -------------------

Affirmative Directive to Nonfederal Recipient of Funds

Sec. 53.1 An amendment to an appropriation bill in the form of a
limitation, allowing the use of funds only if certain actions are
taken by nonfederal institutions, was held to be legislation and
not in order.

On Feb. 14, 1936,⁽⁴⁾ the Committee of the Whole was
considering H.R. 11035, a War Department appropriation bill. At one
point the Clerk read as follows:
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4. 80 Cong. Rec. 2091-94, 74th Cong. 2d Sess.
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For the procurement, maintenance, and issue, under such
regulations as may be prescribed by the Secretary of War, to
institutions at which one or more units of the Reserve Officers'
Training Corps are maintained [of supplies, etc.]. . . .
Mr. [Fred] Beirmann [of Iowa]: Mr. Chairman, I offer an
amendment.
The Clerk read as follows:

Amendment offered by Mr. Biermann: On page 59, line 6,
after

[[Page 6122]]

the words ``corps'', insert ``Provided further, That none of
the funds appropriated in this act shall be used for or toward
the support of military training courses in any civil school or
college the authorities of which choose to maintain such
courses on a compulsory basis, unless the authorities of such
institutions provide, and make known to all prospective
students by duly published regulations, arrangements for the
unconditional exemption from such military courses, and without
penalty, for any and all students who prefer not to participate
in such military courses because of convictions conscientiously
held, whether religious, ethical, social, or educational,
though nothing herein shall be construed as applying to
essentially military schools or colleges.''

Mr. [Tilman B.] Parks [of Arkansas]: Mr. Chairman, I make the
point of order that the amendment is legislation on an
appropriation bill and is in no sense a limitation. . . .
Mr. Biermann: Mr. Chairman, the purpose of this amendment is to
make an exception of the compulsory feature of this military
training for those students who have a genuine conscientious
scruple against taking military training. The amendment is of the
same piece of cloth as the amendment of the gentleman from New York
[Mr. Marcantonio], which has been ruled in order many times in this
House.
The Chairman:⁽⁵⁾ The Chair is ready to rule. The
first part of the amendment offered by the gentleman from Iowa is
very much the same as the amendment offered by the gentleman from
New York [Mr. Marcantonio], but there is further language in the
amendment offered by the gentleman from Iowa which involves
legislation which is as follows:
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5. Claude V. Parsons (Ill.).
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That unless the authorities of such institutions provide
and make known to all prospective students by duly published
regulation--

And so forth. That is an affirmative command and direction to
the officers of the institution. The Chair thinks the amendment is
not in order because it provides legislation on an appropriation
bill, and, therefore, sustains the point of order.

Parliamentarian's Note: The Chair in this instance attached
importance to the fact that the amendment gave an ``affirmative''
directive to school authorities and not on the determinations which
would be required on the federal officials allotting the funds to the
institutions. This raises a question whether merely negative language,
a denial of funds to schools which do not exempt students as described
or publish the specified information, would have been permitted. It can
be argued even in that case that such exemption of students and
publication of information are matters that more properly belong to the
substantive legislation. On the other hand, if it can be said that such
exemptions from military service or courses are already mandated by
law, so that the condition imposed on the schools is merely one of
publishing information about students' legal rights, and carrying

[[Page 6123]]

out ministerial duties to fulfill the law's requirements, then the case
would be similar to that in the ruling of June 24, 1969 (discussed in
the ``Note on Contrary Rulings,'' following Sec. 53.6, infra), in which
the conditional language permitted by the Chair merely required
institutions to be in compliance with law.

Restricting Funds to Farmers Unless They Agree to Use Funds in Certain
Way

Sec. 53.2 To a paragraph of an appropriation bill making appropriations
for soil conservation payments, an amendment providing that no
payment in excess of $1,000 shall be paid to any one person or
corporation unless at least one-half of the amounts so paid shall
be paid to sharecroppers or renters of farms for which payments are
made was held to be legislation and not in order, in that, under
the guise of a limitation it provided affirmative directions that
imposed new duties.

On Mar. 28, 1939,⁽⁶⁾ the Committee of the Whole was
considering H.R. 5269, an Agriculture Department appropriation bill.
The Clerk read as follows:
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6. 84 Cong. Rec. 3427, 3428, 76th Cong. 1st Sess.
---------------------------------------------------------------------------

Amendment offered by Mr. (Francis H.) Case of South Dakota:
Page 89, line 9, after the colon, insert ``Provided further, That
of the funds in this paragraph no payment in excess of $1,000 shall
be paid for any one farm operated by one person: Provided further,
That no payment in excess of $1,000 shall be paid to any one person
or corporation unless at least one-half of the amounts so paid
shall be paid to sharecroppers or renters of farms for which
payments are made.'' . . .
Mr. [Clarence] Cannon of Missouri: Mr. Chairman, I make the
point of order against the amendment proposed by the gentleman from
South Dakota that it is legislation under the guise of a
limitation. . . .
Mr. Case of South Dakota: Mr. Chairman, this amendment is a
limitation on payments; and in the present instance one would have
to turn from the gentleman from Missouri as chairman of the
subcommittee to the gentleman from Missouri as parliamentarian.The
Chair will find the following on page 62 of Cannon's Procedure:

As an appropriation bill may deny an appropriation for a
purpose authorized by law, so it may by limitation prohibit the
use of money for part of the purpose while appropriating for
the remainder of it. It may not legislate as to qualifications
of recipients, but may specify that no part shall go to
recipients lacking certain qualifications.

In this particular instance the qualification is set up for the
landlord that he shall give at least half this payment to his
sharecropper or renter. Viewed

[[Page 6124]]

in this light I believe the Chair will find it is a pure
limitation.
Mr. Cannon of Missouri: Mr. Chairman, the proposed amendment
couples with the purported limitation affirmative directions and is
legislation in the guise of a limitation.
The Chairman: ⁽⁷⁾ Cannon's Precedents, page 667,
volume 7, 1936, section 1672, states:
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7. Wright Patman (Tex.).
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An amendment may not under guise of limitation provide
affirmative directions which impose new duties.

The last part of the pending amendment states:

Unless at least one-half of the amount so paid shall be
paid to these croppers or renters of farms for which payments
are made.

It is the opinion of the Chair that this requires affirmative
action; therefore the point of order is sustained.

Restricting Funds for Construction Within a State Unless Governor
Approves

Sec. 53.3 An amendment to the Department of Interior appropriation bill
providing that none of the funds therein may be used for the
purchase of material for new construction of electrical generating
equipment in any state unless approved by the Governor or board
having jurisdiction over such matters, was held to be legislation
on an appropriation bill and not in order.

On Mar. 30, 1949,⁽⁸⁾ during consideration in the
Committee of the Whole of the Department of the Interior appropriation
bill (H.R. 3838), a point of order was raised against the following
amendment:
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8. 95 Cong. Rec. 3530, 3531, 81st Cong. 1st Sess.
---------------------------------------------------------------------------

The Clerk read as follows:

Amendment offered by Mr. [Ben F.] Jensen [of Iowa]: On page
43, line 3, insert: ``None of the funds herein appropriated may
be used for the purchase of material for the beginning of any
new construction of electrical generating equipment,
transmission lines, or related facilities in any State unless
approved by the governor, by the board, or commission of the
respective States having jurisdiction over such matters.''

Mr. [Henry M.] Jackson of Washington: Mr. Chairman, I make a
point of order against the amendment on the ground that it is
clearly legislation on an appropriation bill.

The Chairman: ⁽⁹⁾ Does the gentleman from Iowa
desire to be heard on the point of order?
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9. Jere Cooper (Tenn.).
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Mr. Jensen: If the Chair pleases; yes.
The Chairman: The Chair will hear the gentleman, briefly.
Mr. Jensen: Mr. Chairman, again I contend, and I am sure
rightly so, that my amendment is purely a limitation of
appropriation. In many States there are State authorities which
pass on such matters as this. They find it is

[[Page 6125]]

good for the States because of the fact they do not want the
Government of the United States to encroach on State rights. So
this is in harmony with the programs which are carried on in many
of the States at the present time. It is very important and I think
for the welfare of this Nation. It is proper and is not legislation
on an appropriation bill.
The Chairman: The Chair is prepared to rule. . . .
The Chair has examined the amendment and especially invites
attention to the following language appearing in the amendment:
``unless approved by the governor, by the board, or commission of
the respective States having jurisdiction over such matters.''
There can be no doubt but what that language would impose
additional duties on the governor and the commission and would
require affirmative action, therefore it constitutes legislation,
and the Chair sustains the point of order.

Parliamentarian's Note: The more compelling ground for ruling the
amendment above out of order is that the amendment was an improper
attempt to interfere with the discretion or authority of federal
officials, those actually involved in the decision-making process (such
as the Bureau of Reclamation) with regard to projects which are part of
a federal program. More precisely, the effect of the amendment was to
limit the authority of federal officials, not the use of funds
contained in the bill. Moreover, the provisions here in question may be
regarded as an attempt to alter fundamental relations, already
established in existing law, between state and federal entities. Viewed
in this light, the ruling leaves open the question of whether an
attempt to impose duties on state officials by establishing conditions
to be fulfilled by prospective beneficiaries of federal funds is
impermissible in an appropriation bill.

Determination Whether Life of Mother is at Risk as Prelude to Abortion

Sec. 53.4 A paragraph in a general appropriation bill prohibiting the
use of funds in the bill to perform abortions except where the
mother's life would be endangered if the fetus were carried to term
was ruled out of order as legislation, since requiring federal
officials to make new determinations and judgments not required by
law as to the danger to the mother in each individual case.

The ruling of the Chair on June 17, 1977,⁽¹⁰⁾ was that a
provision in a general appropriation bill requiring new determinations
by federal officials is legislation and

[[Page 6126]]

subject to a point of order, regardless of whether or not private or
state officials administering the federal funds in question routinely
make such determinations.
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10. 123 Cong. Rec. 19698, 19699, 95th Cong. 1st Sess.
---------------------------------------------------------------------------

The Chairman: ⁽¹¹⁾ When the Committee of the Whole
rose on Thursday, June 16, 1977, the Clerk had read from section
209, line 2, on page 40.
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11. Richard Bolling (Mo.).
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Are there any amendments?
Mr. [Clifford R.] Allen [of Tennessee]: Mr. Chairman, I have a
point of order.
The Chairman: The gentleman will state it.
Mr. Allen: Mr. Chairman, I make a point of order against
section 209 which states:

None of the funds contained in this Act shall be used to
perform abortions except where the life of the mother would be
endangered if the fetus were carried to term.

My point of order is simply that this is legislation in an
appropriation act. Obviously and implicitly in this language is the
duty on the part of some administrative agency, or on the part of
whoever is going to disburse the funds, to ascertain from some
physician that the life of the mother or the pregnant woman would
be endangered if the fetus is carried to term. This is imposing an
additional burden on whatever administrative agency has to carry
out this task. On that basis I make a point of order that this is
legislation in an appropriation act. . . .
Mr. [Daniel J.] Flood [of Pennsylvania]: . . . Mr. Chairman, I
rise in opposition to the point of order.
The provision in question here is identical--I repeat for the
purpose of emphasis, the provision in question is identical--to the
provisions of Public Law 94-439, that is the Labor-HEW
Appropriation Act for fiscal year 1977. It does not impose any
additional burdens on any officer of the Federal Government. The
determination as to whether the life of the mother is endangered
would of course be made by a physician, but not a Federal official,
and the physician would have to make that determination anyway
whether or not this provision is in the bill, and any physician who
is treating a woman seeking an abortion would have to make a
judgment as to her state of health. . . .
Mr. [Robert E.] Bauman (of Maryland): Mr. Chairman, in support
of the argument presented by the gentleman from Pennsylvania, it
should be noted by the Chair that medicaid funds which this section
affects are administered by the States and not by the Federal
Government.
In addition to that, the judgment required by section 209 would
have to be made by private physicians who might be reimbursed, but
it would be State officials who would be doing reimbursing with
Federal funds, not Federal officials.
As the Chair knows, the imposition of additional duties on
Federal officials, is a proper test of whether or not the language
goes beyond a limitation. In this case it does not involve a
judgment by a Federal official, only by a reimbursing State
official on the certification in most cases by a private doctor.
Therefore I do not believe it imposes any additional duties. It
simply is a limitation on the manner in which the funds may be
expended. . . .

[[Page 6127]]

Mr. Allen:. . . [W]hile it is true that medicaid is generally
and in most cases administered by State agencies, there are certain
exceptions where the Federal Government actually supports clinics
across the Nation. But beyond that, it would certainly be incumbent
upon the Treasury Department, the auditors, and maybe the General
Accounting Office to see to it that indeed the life of the mother
whose abortion is paid for out of Federal funds was endangered,
which would require certainly a certification or written opinion or
opinion of some kind from some competent physician.
It seems to me clear that it is legislation in an Appropriation
Act.
Now, the fact that it was in last year's Appropriation Act does
not make it the law of the land. It was stricken down as
unconstitutional by a Federal court already, that very language,
and we are undertaking to reimpose it into this act after it has
been held unconstitutional and the Department of HEW has instructed
all of its agencies across the country to abide by the Federal
court decision and not to deny any woman an abortion merely on the
grounds that she is a welfare patient and unable to pay for the
cost.
The Chairman: The Chair is prepared to rule.
In the first place the fact that the same language was in an
appropriation act last year gives it no immunity to the point of
order.
The Chair would like to read the section. It is brief:

Sec. 209. None of the funds contained in this Act shall be
used to perform abortions except where the life of the mother
would be endangered if the fetus were carried to term.

Now, there is no limitation in that language to state the use
of funds, nor is there any limitation in the language to medicaid.
The Chair, therefore, feels that the statement, which the Chair
will read, is applicable and sound.
The gentleman from Tennessee has made a point of order against
the language in the bill that the Chair has just read on the
grounds it is legislation on an appropriation bill.
The language in question, section 209 of the bill, prohibits
the use of funds in the act to perform abortions except where the
life of the mother would be endangered if the fetus were carried to
term. It is well established that a limitation is not in order on
an appropriation bill if it requires new duties and determinations
on the executive branch and requires investigations. Section 209 by
its terms requires the Federal Government to determine, in each and
every case where an abortion may be performed with Federal funds,
whether the life of the mother was endangered. Whether or not such
determinations are routinely made by practicing physicians on a
voluntary basis, the language in the bill addresses determinations
by the Federal Government and is not limited by its terms to
determinations by individual physicians or by the respective
States.
For the reasons stated, the Chair sustains the point of order.

Sec. 53.5 An amendment to a general appropriation bill prohibiting the
use of funds in the bill to perform abortions, except where a
physician has certified the abortion is nec

[[Page 6128]]

essary to save the life of the mother, was ruled out as legislation
since some of the physicians required to make such certification
would be federal officials not required under existing law to make
such determinations and judgments.

On June 17, 1977,⁽¹²⁾ during consideration in the
Committee of the Whole of H.R. 7555 (Departments of Labor, and Health,
Education, and Welfare, and related agencies appropriation bill), a
point of order was sustained against the following amendment:
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12. 123 Cong. Rec. 19699, 19700, 95th Cong. 1st Sess.
---------------------------------------------------------------------------

Mr. [Henry J.] Hyde [of Illinois]: Mr. Chairman, I offer an
amendment.
The Clerk read as follows:

Amendment offered by Mr. Hyde: On page 39, after line 23,
add the following new section:

``Sec. 209. None of the funds appropriated under this Act
shall be used to pay for abortions or to promote or encourage
abortions, except where a physician has certified the abortion
is necessary to save the life of the mother.''. . .

Ms. [Elizabeth] Holtzman [of New York]: Mr. Chairman, I make a
point of order that the amendment, like the prior one, violates the
rules of the House, inasmuch as it contains legislation on an
appropriation bill. The duties that are imposed by this amendment
on the executive branch would also apply to the care of a physician
operating in Federal hospitals directly in the employ of the
Federal Government. New duties would be imposed on them to make
certifications in order to perform abortions. It seems to me that
such duties could not be properly imposed in an appropriations
bill. . . .
Mr. Hyde: . . . Mr. Chairman, I think the well-settled rule
that the limitation, if it does not impose a burden on a Federal
official or impose a burden on the executive branch, is in order. I
think this version of the amendment clearly says we are talking
about a physician certifying the abortion as necessary. There is
certainly no implication or hint that a member of the executive
branch would have to exercise any judgment. . . .
Mr. [Clifford R.] Allen [of Tennessee]: . . . Mr. Chairman, the
language contained in this substitute amendment is the same, in
essence, as the original amendment. It does not state what
physician or by whom the physician would be paid, but it does
require the disbursing officer or the agency that is going to
disburse these funds to first obtain a written certification from a
physician before disbursing those funds. Thus, it imposes two
additional duties; first, on some physician, perhaps a physician
paid out of Federal funds or medicaid funds or medicare funds, or
whatever, to make this determination. It is the same determination
that the other original language carried. Then, in addition, it
would require the disbursing officer to ascertain whether or not
such a certification was made by a physician before he would be
authorized to disburse any funds under this act. . . .
Mr. [Robert E.] Bauman [of Maryland]: Mr. Chairman, the
language

[[Page 6129]]

substantially changes the section previously before us in that it
specifically requires determination by a non-Federal official. The
argument advanced that someone in the employ of the Federal
Government may have to issue a check or not issue a check for a
certain amount is not apposite to this case, because it has been
ruled many times that the application of any limitation on an
appropriation bill requiring some minimal extra duty such as the
disbursement of checks does not fall within a definition of a
limitation that goes beyond the rules. . . .
I would again call to the attention of the Chair that the
programs that this would affect, financed in this bill, are
programs in which the Federal payments are disbursed by State
agencies and State employees, and so the chain of action involved
would be a private physician making a determination as to the
physical state of the mother, and then informing a State official
as to his right to reimbursement. Only after all of that procedure
is gone through would a Federal official issue some sort of
funding. So, I would think the amendment would be particularly in
order as a proper limitation. . . .
Mrs. [Yvonne B.] Burke [of California]: Mr. Chairman, I would
just like to answer the point raised by the gentleman from
Maryland, who talked about the financial payments. The point of
order was that there were direct agents, employees of the Federal
Government, who would have to make this determination.
We have within this bill employees of public health services;
we have military hospital personnel; we have particular provisions
for many who are health personnel, who are directly paid by the
Federal Government, many of whom are in administrative positions
who would be required to make a determination; we have St.
Elizabeths Hospital within this bill, and there are many provisions
for direct Federal action. . . .
The Chairman: ⁽¹³⁾ The Chair is ready to rule.
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13. Richard Bolling (Mo.).
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The gentlewoman from New York makes a point of order against
the amendment offered by the gentleman from Illinois on the ground
that it constitutes legislation in an appropriations bill. The
amendment would prohibit funds in the bill to perform abortions
except where the physician involved has certified that the life of
the mother was in danger.
For the reasons stated by the Chair in the just previous
ruling, and because the Chair is convinced by the argument of the
gentlewoman from New York and the gentlewoman from California that
some of the physicians affected by the amendment are Federal
officials and would be required by the amendment to perform new
duties and determinations not required of them by law, therefore
the Chair sustains the point of order.

Requiring State Official to Make Determinations Not Required by Law

Sec. 53.6 An amendment to an appropriation bill prohibiting the use of
funds therein for certain stream channelization projects unless the
appropriate Governor con

[[Page 6130]]

siders its environmental effects and certifies to the Secretary of
Agriculture that such project is in the public interest was held to
impose additional duties on an executive official not already
required by existing law and was therefore ruled out in violation
of Rule XXI clause 2.

On June 23, 1971,⁽¹⁴⁾ during consideration in the
Committee of the Whole of H.R. 9270 (Department of Agriculture and
environmental and consumer protection appropriation bill) a point of
order against the following amendment was sustained:
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14. 117 Cong. Rec. 21647, 21648, 92d Cong. 1st Sess.
---------------------------------------------------------------------------

The Clerk read as follows:

Amendment offered by Mr. [Henry S.] Reuss [of Wisconsin]:
On page 37, immediately after line 25, insert the following:
``No part of the funds appropriated by this Act shall be
used for engineering or construction of any stream
channelization measure under any program administered by the
Secretary of Agriculture unless (1) such channelization is in a
project a part of which was in the project construction stage
before July 1, 1971; or (2) the Governor of the State in which
the channelization is to be located certifies to the Secretary
of Agriculture, after consideration of the environmental
effects of such channelization, that such channelization is in
the public interest.''

Mr. [Jamie L.] Whitten [of Mississippi]: Mr. Chairman, I make a
point of order against the amendment. . . .
I respectfully suggest, Mr. Chairman, that this language is not
a limitation on an appropriation bill, but carries with it the
requirements of certain duties by the Governors of the States for
certain actions and certain determinations as to whether or not
they can be properly made, and therefore brings them within the
point of order, which I insist upon. . . .
Mr. Reuss: . . . Mr. Chairman, the amendment I have offered is
clearly and squarely within the precedents. It constitutes an
appropriation limitation on an appropriation. The statement of the
Chair reported in volume 7 of Cannon's Precedents at page 704, is
squarely in point.
In that matter on May 21, 1918, an amendment was offered to the
agriculture appropriation bill saying:

No part of this appropriation shall be available for any
purpose unless there shall have been previously issued the
proclamation by the President.

It then refers to the kind of proclamation that the President
may offer.
Mr. William H. Stafford, of Wisconsin, who, incidentally, was
my predecessor in my congressional district, made the point of
order that the amendment was legislation, and hence out of order on
an appropriation bill.
The Chair held:

A different principle from that of germaneness is involved
in the point of order to this amendment. If the Chair
understands the amendment it is intended as a limitation on the
payment of any money under this

[[Page 6131]]

paragraph until the President has issued a certain indicated
proclamation which in his discretion he may or may not issue.
This amendment does not compel him to issue it, but so long as
it is unissued the House does not propose, if the amendment is
adopted, to allow the Agricultural Department to have the
benefit of the appropriation in this paragraph. . . .
This amendment does not compel the President to issue the
proclamation referred to. He may issue it or refuse to issue it
in his discretion. But the amendment in substance says to the
Department of Agriculture: We propose to withhold from you the
benefit of this appropriation during the full period of time
during which this proclamation is unissued.

Mr. Chairman, this puts it on all fours with the amendment that
I have offered, which leaves it to the Governor of the State to
determine whether the channelization project proposed is in the
public interest. It does not impose any duty on the Governor. If he
acts under this, then the Secretary of Agriculture is governed by
it, and there are no additional duties imposed upon the Secretary.
Mr. Chairman, to the same effect there are numerous other
precedents cited. February 24, 1916 there is reported at page 651
of 7 Cannon's Precedents a ruling in which the Chair ruled in an
almost identical matter that a requirement of a certification by
patrons of a rural mail route was not legislation on an
appropriation bill, but a permissible limitation. . . .
The Chairman: ⁽¹⁵⁾ The Chair is prepared to rule.
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15. James C. Wright, Jr. (Tex.).
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The gentleman from Wisconsin has offered an amendment against
which the gentleman from Mississippi makes the point of order that
it constitutes legislation on an appropriation bill and, therefore,
for that reason is in violation of clause 2, rule XXI.
The amendment provides that none of the funds appropriated in
the act should be used for stream channelization by the Secretary
of Agriculture unless the Governor of the State where the channel
is to be located considers its environmental effect and certifies
to the Secretary that such channelization is in the public
interest.
The question involved is whether or not the amendment seeks to
impose additional duties upon an executive or to require from that
executive an additional certification not previously authorized in
existing law; if it does so, it constitutes legislation under the
precedents.
The Chair has examined the precedent cited by the gentleman
from Wisconsin which arose on May 12, 1918. There is some
similarity except that the amendment offered on that occasion by
the gentleman from California (Mr. Randall) would have provided
that no part of the appropriation shall be available until a
previously issued proclamation had been made, and following the
word ``proclamation'' in the amendment offered on that occasion
appear these words: ``authorized by Section 15 of the Act of August
10, 1970.''
Therefore, it appears to the Chair that the precedent cited by
the gentleman from Wisconsin is distinguishable from the present
case in that the proclamation required in that amendment was one
that was already authorized under existing law.

[[Page 6132]]

The Chair is not aware that the certification and finding
required of a Governor by the amendment offered by the gentleman
from Wisconsin is required or authorized by existing law.
The Chair would refer the Committee to the decision by Chairman
Jere Cooper, of Tennessee, on March 30, 1949, which the Chair
regards to be more in point with the present situation. On that
occasion an amendment was offered to the Department of Interior
appropriation bill providing that none of the funds might be used
for the purchase of certain materials and the beginning of certain
new construction unless approved by the Governor or by a board or
by a commission of the respective State.
On that occasion, Chairman Cooper held that this was
legislation on an appropriation bill in that it required a
determination and imposed a burden upon the Governor which did not
previously exist.
The Chair feels that that decision would be controlling in this
instance and, since the present amendment would impose additional
duties not existing in present law, in violation of clause 2, rule
XXI sustains the point of order.

Parliamentarian's Note: In several instances, described
elsewhere,⁽¹⁶⁾ the Chair and others have assumed that the
test for determining whether provisions imposing new duties are
legislative in nature, is whether the duties are imposed on federal or
nonfederal officials. The view that was at least implied in those
instances was that only where federal officials are given new
substantial duties to perform does the imposition render the provision
improper. In the 1971 ruling above, however, the Chair took the view
that the conferral of new authority on a state official makes the
provision subject to a point of order. The Chair apparently rejected
the view that the state official in the present instance could be
considered in some sense as having the standing of a direct or indirect
beneficiary, so that the duties to be performed by him were merely
those conditions he was required to fulfill to receive the benefit of
the funds in question, and accordingly rejected Mr. Reuss' argument
that nothing in the provision compelled the official to do anything. It
is probably useful to consider this precedent as an example of an
improper attempt to grant new authority to state officials, or of an
attempt to change a policy affecting fundamental relations, already
established in existing law, between state and federal entities.
Nothing in the ruling, of course, is inconsistent with the principle
that where a contingency is itself au

[[Page 6133]]

thorized, the contingency may be included in an appropriation bill.
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16. See Sec. Sec. 53.4 and 53.5, supra, and the ruling of June 23,
1971, which is discussed in the ``Note on Contrary Rulings''
below.
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Note on Contrary Rulings

As indicated above,⁽¹⁷⁾ the precedents just discussed
represent the line of authority that is in consonance with modern
precedents. What follows is a discussion of some rulings, particularly
earlier rulings, that seem to conflict in some degree with the
principles stated in the precedents discussed above.
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17. See the introduction to this section (Sec. 53), supra.
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On June 27, 1952,⁽¹⁸⁾ an amendment to a bill relating to
housing projects was introduced for purposes of ensuring that certain
types of projects would be approved by local officials. In response to
a point of order, the Chair ruled that, to a general appropriation
bill, an amendment providing that no part of an appropriation for
defense housing could be used for administrative expenses or salaries
of the Public Housing Administration, so long as that agency proceeded
with certain types of projects not approved by local officials, was a
proper limitation and therefore in order. The amendment would now
probably be deemed a change in existing law, since the authorizing law
relating to defense housing was in the nature of an open-ended
directive to the President to build permanent housing around defense
installations; no local approval of projects was required. It should
also be noted with regard to this ruling that, although the Chair held
the amendment to be germane, such ruling would now at least be
arguable.
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18. 98 Cong. Rec. 8353, 82d Cong. 2d Sess. Under consideration was H.R.
8370, a supplemental appropriation bill.
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On Oct. 14, 1965,⁽¹⁹⁾ the ruling of the Chair was that
language in a supplemental appropriation bill providing funds for the
rent-supplement program and specifying that ``no part of the . . .
appropriation or contract authority shall be used'' in any project not
part of a ``workable program for community improvement'' (as defined in
the Housing Act of 1949), or which is without local official approval,
was held to be a proper limitation and in order. The argument was made
by Mr. Thomas L. Ashley, of Ohio, that the issues raised by the
language in question ``were the subject of discussion and, indeed,
proposed amendments at the time the housing bill was debated and
considered ear

[[Page 6134]]

lier this year. The amendments which sought to accomplish the same
objective were rejected.'' Thus, it would seem that the language in
question was an example of an attempt to change the underlying purposes
or policy of legislation, such policy having been duly considered. The
Chair, however, apparently rejected Mr. Ashley's arguments and, in
overruling a point of order against the language, noted that no
additional duties were imposed on the administration by the proviso.
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19. 111 Cong. Rec. 26994, 89th Cong. 1st Sess. Under consideration was
H.R. 11588.
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On Mar. 29, 1966,⁽²⁰⁾ the Chair ruled that language in a
general appropriation bill providing funds for the National Teacher
Corps, specifying that ``none of these funds may be spent . . . prior
to approval . . . by the state educational agency'' was a proper
limitation restricting the availability of funds and was therefore in
order. Arguments that the Chair found persuasive were to the effect
that, because of the conditional nature of the language, no additional
duties were affirmatively required. The weight of authority at present,
however, seems to be that the conditional nature of such language would
not prevent a finding by the Chair that existing law is sought to be
changed thereby.⁽¹⁾
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20. 112 Cong. Rec. 7118, 7119, 89th Cong. 2d Sess. H.R. 14012, a
supplemental appropriation bill, was under consideration.
1. See, for example, Sec. Sec. 47-50, supra, discussing appropriations
subject to conditions.
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On June 11, 1968,⁽²⁾ the Chair seemed to indicate that,
although it is not in order by way of a limitation to impose new duties
on an executive officer, it is permissible to make the payment of funds
contingent upon the performance of certain obligations by private
citizens or other persons not in the government's employ. For example,
to a general appropriation bill, including funds for the Treasury
Department, an amendment providing that none of the funds therein shall
be used for any expense in connection with customs clearance or import
licenses for rifles which are not registered with the Commissioner of
Customs, was held to be a proper limitation and in order. In its
ruling, the Chair stated, ``The Chair . . . would interpret the
amendment as not imposing any additional duties of a ministerial sort
upon the Commissioner of Customs, but rather upon the importer or
holder of the license.'' The ruling might thus be understood as an

[[Page 6135]]

example of the fine distinctions sometimes required between (1) cases
in which legitimately imposed qualifications of potential recipients of
benefits requiring federal expenditures might include certain initial
actions to be taken by the potential recipients as part of the
qualifying process, and (2) those cases in which requirements sought to
be imposed in appropriation bills amount to legislative changes.
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2. 114 Cong. Rec. 16712, 90th Cong. 2d Sess. Under consideration was
H.R. 11734, a supplemental appropriation bill. See also
Sec. 52.5, supra.
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The qualifications of a nonfederal recipient of federal funds were
also an issue in the ruling of June 24, 1969.⁽³⁾ The Chair
on that date ruled that, while an amendment under the guise of a
limitation may not require affirmative action or additional duties on
the part of federal officials, it is in order on a general
appropriation to deny funds to a nonfederal recipient of a federal
grant program unless the recipient is in compliance with a provision of
federal law already applicable to it; for such a requirement places no
new duties on a federal official (who is already charged with
responsibility for enforcing the law) but only on the nonfederal
grantee. The amendment in question stated that ``none of the funds
appropriated by this act for payments authorized by section 1705 of the
Housing and Urban Development Act of 1968, shall be used to formulate
or carry out any grant or loan to any institution of higher education
unless such institution shall be in full compliance with section 504 of
Public Law 90-575.'' ⁽⁴⁾
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3. 115 Cong. Rec. 17085, 91st Cong. 1st Sess. Under consideration was
H.R. 12307, a general appropriation bill.
4. Section 504 of Pub. L. No. 90-575, which was concerned with
eligibility for student assistance, stated in part that 'if an
institution of higher education determines . . . that [an]
individual has been convicted (of certain crimes) then the
institution . . . shall deny . . . further payment . . . for
the direct benefit of [the individual under the programs
specified].''
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On June 23, 1971,⁽⁵⁾ the Chair indicated the applicable
principle to be that, where language on an appropriation bill
restricting the availability of funds therein for certain purposes or
to certain recipients requires an executive official to determine the
applicability of that restriction in a specific case, it must be shown
that such official is not being called upon to perform substantial
duties in addition to those required by law.

[[Page 6136]]

The ruling of the Chair in this instance was that an amendment to an
appropriation bill prohibiting the use of funds in the bill for making
food stamps available during a strike to a household ``which needs
assistance solely because any member of such household is a participant
in such strike'' was in order as a valid limitation which did not
impose substantial affirmative duties on executive officials. As in the
June 17, 1977, precedents,⁽⁶⁾ the implied assumption in the
discussion of the point of order on June 23, 1971, was that the test
for allowing the amendment was whether or not it imposed additional
duties on federal officials. The ruling supports the view that, where
the conditions stated in an appropriation bill can be seen merely as
those which prospective recipients or beneficiaries must fulfill in
order to qualify as proper beneficiaries, the conditions will be
allowed. (The Holman rule, mentioned in debate, is not strictly
applicable here, since the question in applying the Holman rule is not
whether the provision in question is legislative in nature; the
question is whether a provision which is admittedly legislative in
nature is to be permitted because it fulfills the precise requirements
of the Holman rule exception to the general rule against legislation on
appropriation bills.) It should also be noted with regard to this
ruling that, during argument on the point of order, Mr. James G.
O'Hara, of Michigan, argued that the official administering the program
under the proposed amendment would have the additional burden of
determining whether a potential recipient needed food stamps solely
because a family member was on strike, or whether there were other
reasons or motives for such action. The Chair apparently accepted the
view of Mr. Robert H. Michel, of Illinois, that such a determination
would be made by officials administering the program at the local
level, who would certify that finding to the federal administrators. As
noted elsewhere, however,⁽⁷⁾ terms requiring definition, or
terms which relate to motive, intent, and the like, when used in
general appropriation bills or amendments thereto, frequently raise the
presumption that the language of a proviso is legislative in nature.
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5. 117 Cong. Rec. 21671, 21672, 92d Cong. 1st Sess. Under
consideration was H.R. 9270, agriculture, environmental, and
consumer protection appropriations for fiscal 1972.
6. See Sec. Sec. 53.4 and 53.5, supra.
7. See, for example, Sec. Sec. 25.14 and 50, supra.
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In another case of interest on this subject, the Chair ruled on
Jan. 31, 1941,⁽⁸⁾ that an amend

[[Page 6137]]

ment forbidding payments or allowances for an operating differential
subsidy as provided in the Merchant Marine Act of 1936, as amended, on
any vessel unless the owners or operators of such subsidized vessels
shall have filed with the U.S. Maritime Commission a certificate
setting forth certain information relative to employees on such
vessels, was a proper limitation and in order. The amendment, it should
be noted, required extensive certifications by nonfederal recipients,
not required by existing law. No argument was advanced that the
reporting requirements were tantamount to a change in existing law.
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8. 87 Cong. Rec. 448, 449, 77th Cong. 1st Sess. Under consideration
was H.R. 2788, an independent offices appropriation bill.
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In conclusion, it should be remembered that, while some rulings may
suggest that it is permissible to make the payment of funds contingent
upon the performance of certain acts or obligations by private citizens
or other persons not in the federal government's employ, recent rulings
indicate that it is not in order to make the availability of funds in a
general appropriation bill contingent upon a substantive determination
by a state or local government official or agency which is not
otherwise required by existing law.⁽⁹⁾
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9. See, for example, the ruling at 131 Cong. Rec. ----, 99th Cong. 1st
Sess., July 25, 1985, during proceedings relating to H.R. 3038
(HUD, independent agencies appropriations for fiscal 1986).
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