[106th Congress House Rules Manual -- House Document No. 106-320]
[From the U.S. Government Printing Office Online Database]
[DOCID:hrulest-78]
[Page 794-835]
Rule XXI
restrictions on certain bills
Reservation of certain points of order
1. <> At the time a
general appropriation bill is reported, all points of order against
provisions therein shall be considered as reserved.
This clause was added in the 104th Congress (sec. 215(e), H. Res. 6,
Jan. 4, 1995, p. 468), rendering unnecessary the former practice that a
Member reserve points of order when a general appropriation bill was
referred to the calendar of the Committee of the Whole House on the
state of the Union, in order that provisions in violation of rule XXI
could be stricken in the Committee of the Whole (see Sec. 1044, infra).
Before the House recodified its rules in the 106th Congress, this
provision was found in former clause 8 of rule XXI (H. Res. 5, Jan. 6,
1999, p. ----).
General appropriation bills and amendments
2. (a)(1) <> An appropriation
may not be reported in a general appropriation bill, and may not be in
order as an amendment thereto, for an expenditure not previously
authorized by law, except to continue appropriations for public works
and objects that are already in progress.
(2) <> A
reappropriation of unexpended balances of appropriations may not be
reported in a general appropriation bill, and may not be in order as an
amendment thereto, except to continue appropriations for public works
and objects that are
[[Page 795]]
already in progress. This subparagraph does not apply to transfers of
unexpended balances within the department or agency for which they were
originally appropriated that are reported by the Committee on
Appropriations.
(b) <> A provision changing existing law may not be
reported in a general appropriation bill, including a provision making
the availability of funds contingent on the receipt or possession of
information not required by existing law for the period of the
appropriation, except germane provisions that retrench expenditures by
the reduction of amounts of money covered by the bill (which may include
those recommended to the Committee on Appropriations by direction of a
legislative committee having jurisdiction over the subject matter) and
except rescissions of appropriations contained in appropriation Acts.
(c) <> An amendment to a general appropriation
bill shall not be in order if changing existing law, including an
amendment making the availability of funds contingent on the receipt or
possession of information not required by existing law for the period of
the appropriation. Except as provided in paragraph (d), an amendment
proposing a limitation not specifically contained or authorized in
existing law for the period of the limitation shall not be in order
during consideration of a general appropriation bill.
[[Page 796]]
(d) <> After a general appropriation bill has been read for
amendment, a motion that the Committee of the Whole House on the state
of the Union rise and report the bill to the House with such amendments
as may have been adopted shall, if offered by the Majority Leader or a
designee, have precedence over motions to amend the bill. If such a
motion to rise and report is rejected or not offered, amendments
proposing limitations not specifically contained or authorized in
existing law for the period of the limitation or proposing germane
amendments that retrench expenditures by reductions of amounts of money
covered by the bill may be considered.
(e) <> A provision other than an appropriation
designated an emergency under section 251(b)(2) or section 252(e) of the
Balanced Budget and Emergency Deficit Control Act, a rescission of
budget authority, or a reduction in direct spending or an amount for a
designated emergency may not be reported in an appropriation bill or
joint resolution containing an emergency designation under section
251(b)(2) or section 252(e) of such Act and may not be in order as an
amendment thereto.
(f) <> During the reading of an appropriation bill for amendment in
the Committee of the Whole House on the state of the Union, it shall be
in order to consider en bloc amendments proposing only to transfer
appropriations among objects in the bill
[[Page 797]]
without increasing the levels of budget authority or outlays in the
bill. When considered en bloc under this paragraph, such amendments may
amend portions of the bill not yet read for amendment (following
disposition of any points of order against such portions) and is not
subject to a demand for division of the question in the House or in the
Committee of the Whole.
The <> 25th
Congress in 1837 was the first to adopt a rule prohibiting
appropriations in a general appropriation bill or amendment thereto not
previously authorized by law, in order to prevent delay of appropriation
bills because of contention over propositions of legislation. In 1838
that Congress added the exception to permit unauthorized appropriations
for continuation of works in progress and for contingencies for carrying
on departments of the Government. The rule remained in that form until
the 44th Congress in 1876, when William S. Holman of Indiana persuaded
the House to amend the rule to permit germane legislative retrenchments.
In 1880, the 46th Congress dropped the exception which permitted
unauthorized appropriations for contingencies of Government departments,
and modified the ``Holman Rule'' to define retrenchments as the
reduction of the number and salary of officers of the United States, the
reduction of compensation of any person paid out of the Treasury of the
United States, or the reduction of the amounts of money covered by the
bill. That form of the retrenchment exception remained in place until
the 49th Congress in 1885, when it was dropped until the 52d Congress in
1891, and then reinserted through the 53d Congress until 1894. It was
again dropped in the 54th Congress from 1895 until reinserted in the 62d
Congress in 1911 (IV, 3578; VII, 1125).
The clause remained unamended until January 3, 1983, when the 98th
Congress restructured it in the basic form of paragraphs (a)-(d).
Clerical and stylistic changes were effected when the House recodified
its rules in the 106th Congress, including a change to clause 2(a)(2) to
clarify that the point of order lies against the offending provision in
the text and not against consideration of the entire bill. At that time
former clause 6 was transferred to clause 2(a)(2) and former clause 2(a)
became clause 2(a)(1) (H. Res. 5, Jan. 6, 1999, p. ----).
Paragraph (a)(1) (former paragraph (a)) retained the prohibition
against unauthorized appropriations in general appropriation bills and
amendments thereto except in continuation of works in progress.
Paragraph (a)(2) (former clause 6), from section 139(c) of the
Legislative Reorganization Act of 1946 (2 U.S.C. 190f(c)), was made part
of the standing rules in the 83d Congress (Jan. 3, 1953, p. 24).
Previously, a reappropriation of an unexpended balance for an object
authorized by law was in
[[Page 798]]
order on a general appropriation bill (IV, 3591, 3592; VII, 1156, 1158).
This provision was amended in the 99th Congress by section 228(b) of the
Balanced Budget and Emergency Deficit Control Act of 1985 (P.L. 99-177)
to permit the Committee on Appropriations to report transfers of
unexpended balances within the department or agency for which originally
appropriated.
Paragraph (b) narrowed the ``Holman Rule'' exception from the
prohibition against legislation to cover only retrenchments reducing
amounts of money included in the bill as reported, and permitted
legislative committees with proper jurisdiction to recommend such
retrenchments to the Appropriations Committee for discretionary
inclusion in the reported bill. The last exception in paragraph (b),
permitting the inclusion of legislation rescinding appropriations in
appropriation Acts, was added in the 99th Congress by the Balanced
Budget and Emergency Deficit Control Act of 1985 (sec. 228(a), P.L. 99-
177). The latter feature of the paragraph does not extend to a
rescission of contract authority provided by a law other than an
appropriation Act (Sept. 22, 1993, p. 22138; May 15, 1997, p. ----; July
23, 1997, p. ----). In the 105th Congress paragraph (b) was amended to
treat as legislation a provision reported in a general appropriation
bill that makes funding contingent on whether circumstances not made
determinative by existing law are ``known'' (H. Res. 5, Jan. 7, 1997, p.
----).
Paragraph (c) retained the prohibition against amendments changing
existing law but permitted limitation amendments during the reading of
the bill by paragraph only if specifically authorized by existing law
for the period of the limitation. In the 105th Congress paragraph (c)
was amended to treat as legislation an amendment to a general
appropriation bill that makes funding contingent on whether
circumstances not made determinative by existing law are ``known'' (H.
Res. 5, Jan. 7, 1997, p. ----). The exception for limitations is
strictly construed to apply only where existing law requires or permits
the inclusion of limiting language in an appropriation Act, and not
merely where the limitation is alleged to be ``consistent with existing
law'' (June 28, 1988, p. 16267). Although the Committee on
Appropriations may include a limitation in its reported bill, if it is
stricken with other legislative language on a point of order it may be
reinserted during the reading only if in compliance with clause 2(c) or
in accordance with clause 2(d) (June 18, 1991, p. 15199).
Paragraph (d) provided a new procedure for consideration of
retrenchment and other limitation amendments only when the reading of a
general appropriation bill has been completed and only if the Committee
of the Whole does not adopt a motion to rise and report the bill back to
the House (H. Res. 5, Jan. 3, 1983, p. 34). In the 104th Congress
paragraph (d) was amended to limit the availability of its preferential
motion to rise and report to the Majority Leader or his designee (sec.
215(a), H. Res. 6, Jan. 4, 1995, p. 468). In the 105th Congress it was
further amended to make the motion preferential to any motion to amend
at that stage (H. Res. 5, Jan. 7, 1997, p. ----). Where the reading of a
general appropriation
[[Page 799]]
bill for amendment has been completed (or dispensed with), including the
last paragraph of the bill containing the citation to the short title
(July 30, 1986, p. 18214), the Chair (under the former form of the rule,
which made the preferential motion available to any Member) might first
inquire whether any Member sought to offer an amendment (formerly, one
not prohibited by clauses 2(a) or (c)) prior to recognizing Members to
offer limitation or retrenchment amendments (June 2, 1983, p. 14317;
Sept. 22, 1983, p. 25406; Oct. 27, 1983, p. 29630), including pro forma
amendments (Aug. 2, 1989, p. 18126). Pursuant to clause 2(d), a motion
that the Committee rise and report the bill to the House with such
amendments as may have been adopted is not debatable (Apr. 23, 1987, p.
9613) and takes precedence over any amendment (formerly only over a
limitation or retrenchment amendment) (July 30, 1985, p. 21534; July 23,
1986, p. 17431; Apr. 23, 1987, p. 9613), but only after completion of
the reading and disposition of amendments not otherwise precluded (June
30, 1992, p. 17135). Thus a motion that the Committee rise and report
the bill to the House with the recommendation that it be recommitted,
with instructions to report back to the House (forthwith or otherwise)
with an amendment proposing a limitation, does not take precedence over
the motion to rise and report the bill to the House with such amendments
as may have been adopted (sustained on appeal, Sept. 19, 1983, p.
24647). An amendment not only reducing an amount in a paragraph of an
appropriation bill but also limiting expenditure of those funds on a
particular project (i.e., a limitation not contained in existing law)
was held not in order during the reading of that paragraph but only at
the end of the bill under clause 2(d) (July 23, 1986, p. 17431; June 15,
1988, p. 14719). Where language of limitation was stricken from a
general appropriation bill on a point of order that it changed existing
law, an amendment proposing to reinsert the limitation without its
former legislative content was held not in order before completion of
the reading for amendment (Sept. 23, 1993, p. 22214). A motion that the
Committee of the Whole rise and report to the House with the
recommendation that the enacting clause be stricken out takes precedence
over the motion to amend under clause 9 of rule XVIII (former clause 7
of rule XXIII) and thus over the motion to rise and report under clause
2(d) (July 24, 1986, p. 17641).
Paragraphs (e) and (f) were added in the 104th Congress (sec. 215, H.
Res. 6, Jan. 4, 1995, p. 468).
As the rule <> applies only to general appropriation bills,
which are not enumerated or defined in the rules (VII, 1116) bills
appropriating only for one purpose have been held not to be ``general''
within the meaning of this rule (VII, 1122). Neither a resolution
providing an appropriation for a single Government agency (Jan. 31,
1962, p. 1352), nor a joint resolution only containing continuing
appropriations for diverse agencies to provide funds until regular
appropriation bills are enacted (Sept. 21, 1967, p. 26370), nor a joint
resolution providing an appropriation for a single
[[Page 800]]
Government agency and permitting a transfer of a portion of those funds
to another agency (Oct. 25, 1979, p. 29627), nor a joint resolution
transferring funds already appropriated from one specific agency to
another (Mar. 26, 1980, p. 6716), nor a joint resolution transferring
unobligated balances to the President to be available for specified
purposes but containing no new budget authority (Mar. 3, 1988, p. 3239),
are ``general appropriation bills'' within the purview of this clause.
A point of order under this rule does not apply to a special order
reported from the Committee on Rules ``self-executing'' the adoption in
the House of an amendment changing existing law (July 27, 1993, p.
17117). By unanimous consent the Committee of the Whole may vacate
proceedings under specified points of order (June 7, 1991, p. 13973). A
point of order may be withdrawn as a matter of right (in the Committee
of the Whole as well as in the House) before action thereon (May 19,
2000, p. ----).
As all bills making or authorizing appropriations require
consideration in Committee of the Whole, it follows that the enforcement
of the rule must ordinarily occur during consideration in Committee of
the Whole, where the Chair, in response to a point of order, may rule
out any portion of the bill in conflict with the rule (IV, 3811; Sept.
8, 1965, pp. 23140, 23182). Portions of the bill thus stricken are not
reported back to the House. Prior to the adoption of clause 1 (former
clause 8) in the 104th Congress (see Sec. 1035, supra), it was necessary
that some Member reserve points of order when a general appropriation
bill was referred to the calendar of the Committee of the Whole House on
the state of the Union, in order that provisions in violation of the
rule could be stricken in the Committee (V, 6921-6925; VIII, 3450; Feb.
6, 1926, p. 3456). Where points of order had been reserved pending a
unanimous-consent request that the committee be permitted to file its
report when the House would not be in session, it was not necessary that
they be reserved again when the report ultimately was presented as
privileged when the House was in session, as the initial reservation
carried over to the subsequent filing (Mar. 1, 1983, p. 3241). In an
instance where points of order were not reserved against an
appropriation bill when it was reported to the House and referred to the
Committee of the Whole, points of order in the Committee of the Whole
against a proposition in violation of this clause were overruled on the
ground that the Chairman of the Committee of the Whole lacked authority
to pass upon the question (Apr. 8, 1943, p. 3150, 3153).
The enforcement of the rule also occurs in the House in that a motion
to recommit a general appropriation bill may not propose an amendment
containing legislation (Sept. 1, 1976, p. 28883) or a limitation not
considered in the Committee of the Whole (Speaker Foley, Aug. 1, 1989,
p. 17159; Aug. 3, 1989, p. 18546); and such amendment is precluded
whether the Committee of the Whole has risen and reported automatically
pursuant to a special rule or, instead, by a motion at the end of the
reading for amendment (June 22, 1995, p. 16844).
[[Page 801]]
Points of order against unauthorized appropriations or legislation on
general appropriation bills may be made as to the whole or only a
portion of a paragraph (IV, 3652; V, 6881). The fact that a point of
order is made against a portion of a paragraph does not prevent another
point of order against the whole paragraph (V, 6882; July 31, 1985, p.
21895), nor does it prevent another Member from demanding that the
original point of order be extended to the entire paragraph (July 16,
1998, p. ----). If a portion of a proposed amendment is out of order, it
is sufficient for the rejection of the whole amendment (V, 6878-6880);
and if a point of order is sustained against any portion of a package of
amendments considered en bloc, all the amendments are ruled out of order
and must be reoffered separately, or those which are not subject to a
point of order may be considered en bloc by unanimous consent (Sept. 16,
1981, pp. 20735-38; June 21, 1984, p. 17687). Where a point of order is
sustained against the whole of a paragraph the whole must go out, but it
is otherwise when the point of order is made only against a portion (V,
6884, 6885). General appropriation bills are read ``scientifically''
only by paragraph headings and appropriation amounts, and points of
order against a paragraph must be made before an amendment is offered
thereto or before the Clerk reads the next paragraph heading and amount
(Deschler's Precedents, vol. 8, ch. 26, sec. 2.26). A point of order
against a paragraph under this clause may be made only after that
paragraph has been read by the Clerk, and not prior to its reading
pending consideration of an amendment inserting language immediately
prior thereto (June 6, 1985, pp. 14605, 14609). Where the reading of a
paragraph of a general appropriation bill has been dispensed with by
unanimous consent, the Chair inquires whether there are points of order
against the paragraph before entertaining amendments or directing the
Clerk to read further, but he does not make such an inquiry where the
Clerk has actually read the paragraph (May 31, 1984, p. 14608). Where a
portion of the bill is considered as having been read and open to
amendment by unanimous consent, points of order against provisions in
that portion must be made before amendments are offered, and may not be
reserved (Dec. 1, 1982, p. 28175; May 19, 2000, p. ----). Where a
chapter is considered as read by unanimous consent and open to amendment
at any point, no amendments are offered and the Clerk begins to read the
next chapter, it is too late to make a point of order against a
paragraph in the preceding chapter (June 11, 1985, p. 15181). It is too
late to rule out the entire paragraph after points of order against
specific portions have been sustained and an amendment to the paragraph
has been offered (June 27, 1974, pp. 21670-72).
In the administration of the rule, it is the practice that those
upholding an item of appropriation should have the burden of showing the
law authorizing it (IV, 3597; VII, 1179, 1233, 1276; June 23, 2000, p.
----). Thus the burden of proving the authorization for appropriations
carried in a bill, or that the language in the bill constitutes a valid
limitation which does not change existing law, falls on the proponents
and managers of
[[Page 802]]
the bill (May 28, 1968, p. 15357; Nov. 30, 1982, p. 28062). Where a
provision is susceptible to more than one interpretation, that burden
may be met by a showing that only the requirements of existing law, and
not any new requirements, are recited in the language (Sept. 23, 1993,
p. 22206). The Chair may overrule a point of order that appropriations
for a certain agency are unauthorized upon citation to an organic
statute creating the agency, absent any showing that the organic law has
been overtaken by a scheme of periodic reauthorization; the Chair may
hear further argument and reverse his ruling, however, where existing
law not previously called to the Chair's attention would require the
ruling to be reversed (VIII, 3435; June 8, 1983, p. 14854, where a law
amending the statute creating the Bureau of the Mint with the express
purpose of requiring annual authorizations was subsequently called to
the Chair's attention). Reported provisions in a general appropriation
bill described in the accompanying report as directly or indirectly
changing the application of existing law are presumably legislation,
absent rebuttal by the committee (May 31, 1984, p. 14591). The burden of
proof to show that an appropriation contained in an amendment is
authorized by law is on the proponent of the amendment (May 11, 1971, p.
14471; Oct. 29, 1991, p. 28791; July 26, 1995, p. 20567; July 27, 1995,
pp. 20808, 20811; July 31, 1995, p. 21207; May 15, 1997, p. ----) and
the burden is on the proponent of an amendment to a general
appropriation bill to prove that language offered under the guise of a
limitation does not change existing law (July 17, 1975, p. 23239; June
16, 1976, p. 18666; July 18, 1995, p. 19357) including the burden to
prove that the duties imposed are merely ministerial or already required
under existing law (July 26, 1998, p. ----). If the amendment is
susceptible to more than one interpretation, it is incumbent upon the
proponent to show that it is not in violation of the rule (Procedure,
ch. 25, sec. 6.3; July 28, 1980, p. 19924). The mere recitation in an
amendment that a determination is to be made pursuant to existing laws
and regulations, absent a citation to the law imposing such
responsibility, is not sufficient proof by the proponent of an amendment
to overcome a point of order that the amendment constitutes legislation
(Sept. 16, 1980, p. 25606). The authorization must be enacted before the
appropriation may be included in an appropriation bill; thus delaying
the availability of an appropriation pending enactment of an
authorization does not protect the item of appropriation against a point
of order under this clause (Apr. 26, 1972, p. 14455).
The inclusion of funds in a general appropriation bill in the form of
a ``not to exceed'' limitation does not obviate a point of order that
the funds are not authorized by law (June 21, 1988, p. 15440). The fact
that legislative jurisdiction over the subject matter of an amendment
may rest with the Committee on Appropriations does not immunize the
amendment from the application of clause 2(c) of rule XXI (July 17,
1996, p. 17550; July 24, 1996, p. 18898). The ``works in progress
exception'' under clause 2(a) of rule XXI is a defense to a point of
order against an unauthorized appropriation reported in a general
appropriation bill and is not a defense to
[[Page 803]]
a point of order under clause 2(c) of rule XXI that an amendment to an
appropriation bill constitutes legislation (July 24, 1996, p. 18898).
For a discussion of perfecting amendments to unauthorized
appropriations or legislation permitted to remain in a general
appropriation bill by failure to raise or by waiver of a point of order,
see Sec. 1057, infra.
A treaty <> may provide the authorization by existing law required
in the rule to justify appropriations if it has been ratified by the
contracting parties (IV, 3587); however, where existing law authorizes
appropriations for the U.S. share of facilities to be recommended in an
agreement with another country containing specified elements, an
agreement in principle with that country predating the authorization law
and lacking the required elements is insufficient authorization (June
28, 1993, p. 14421). An Executive Order does not constitute sufficient
authorization in law absent proof of its derivation from a statute
enacted by Congress authorizing the order and expenditure of funds (June
15, 1973, p. 19855; June 25, 1974, p. 21036). Thus a Reorganization Plan
submitted by the President pursuant to 5 U.S.C. 906 has the status of
statutory law when it becomes effective and is sufficient authorization
to support an appropriation for an office created by Executive Order
issued pursuant to the Reorganization Plan (June 21, 1974, p. 20595). A
resolution of the House has been held sufficient authorization for an
appropriation for the salary of an employee of the House (IV, 3656-3658)
even though the resolution may have been agreed to only by a preceding
House (IV, 3660). Previous enactment of items of appropriation
unauthorized by law does not justify similar appropriations in
subsequent bills (VII, 1145, 1150, 1151) unless if through
appropriations previously made, a function of the Government has been
established which would bring it into the category of continuation of
works in progress (VII, 1280), or unless legislation in a previous
appropriation act has become permanent law (May 20, 1964, p. 11422). The
omission to appropriate during a series of years for an object
authorized by law does not repeal the law, and consequently an
appropriation when proposed is not subject to the point of order (IV,
3595). The law authorizing each head of a department to employ such
numbers of clerks, messengers, copyists, watchmen, laborers, and other
employees as may be appropriated for by Congress from year to year is
held to authorize appropriations for those positions not otherwise
authorized by law (IV, 3669, 3675, 4739); but this law does not apply to
offices not within departments or not at the seat of Government (IV,
3670-3674). A permanent law authorizing the President to appoint certain
staff, together with legislative provisions authorizing additional
employment contained in an appropriation bill enacted for that fiscal
year, constituted sufficient authorization for a lump sum supplemental
appropriation for the White House for the same fiscal year (Nov. 30,
1973, p. 38854). By a general provision of law appropriations for
investigations and the acquisition and diffusion of information by the
Agriculture Department on subjects related to agriculture are generally
in order in the agricultural
[[Page 804]]
appropriation bill (IV, 3649). It has once been held that this law would
also authorize appropriations for the instrumentalities of such
investigations (IV, 3615); but these would not include the organization
of a bureau to conduct the work (IV, 3651). The law does not authorize
general investigations by the department (IV, 3652), or cooperation with
State investigations (IV, 3650; VII, 1301, 1302), or the investigation
of foods in relation to commerce (IV, 3647, 3648; VII, 1298), or the
compiling of tests at an exposition (IV, 3653). A paragraph of a general
appropriation bill both establishing and funding a commission was ruled
out as constituting legislation and carrying unauthorized appropriations
(June 29, 1988, p. 16470). A paragraph appropriating funds for matching
grants to States was held unauthorized where the authorizing law did not
require State matching funds (June 28, 1993, p. 14418). A paragraph
funding a project from the Highway Trust Fund was held unauthorized
where such funding was authorized only from the general fund (Sept. 23,
1993, p. 22175). A paragraph providing funds for the President to meet
``unanticipated needs'' was held unauthorized (July 16, 1998, p. ----).
The failure of Congress to enact into law separate legislation
specifically modifying eligibility requirements for grant programs under
existing law does not necessarily render appropriations for those
programs subject to a point of order, where more general existing law
authorizes appropriations for all of the programs proposed to be
modified by new legislation pending before Congress (June 8, 1978, p.
16778). However, whether organic statutes or general grants of authority
in law constitute sufficient authorization to support appropriations
depends on whether the general laws applicable to the function or
department in question require specific or annual authorizations (June
14, 1978, pp. 17616, 17622, 17626, 17630) or on whether a periodic
authorization scheme has subsequently occupied the field (Sept. 9, 1997,
p. ----). An authorization of ``such sums as may be necessary'' is
sufficient to support any dollar amount, but has no tendency to relieve
other conditions of the authorization law (June 28, 1993, p. 1442).
Where existing law authorizes certain appropriations from a particular
trust fund without fiscal year limitation, language that such an
appropriation remain available until expended does not constitute
legislation (July 15, 1993, p. 15848). An amendment to a general
appropriation bill providing that ``not less than'' a certain amount be
made available to a program requires an authorization (July 12, 2000, p.
----; July 13, 2000, p. ----).
Pursuant to clause 11(i) of rule X (former clause 9 of rule XLVIII),
no funds may be appropriated to certain agencies carrying out
intelligence and intelligence-related activities, unless such funds have
been authorized by law for the fiscal year in question.
Judgments of <> courts certified to Congress in accordance with law or
authorized by treaty (IV, 3634, 3635, 3644) and audited under authority
of law have been held to be authorization for appropriations for the
payment of claims (IV, 3634, 3635). However, unadjudicated claims (IV,
3628),
[[Page 805]]
even though ascertained and transmitted by an executive officer (IV,
3625-3640), and findings filed under the Bowman Act do not constitute
authorization (IV, 3643).
An appropriation for an object not otherwise authorized does not
constitute authorization to justify a continuance of the appropriation
another year (IV, 3588, 3589; VII, 1128, 1145, 1149, 1191), and the mere
appropriation for a salary does not create an office so as to justify
appropriations in succeeding years (IV, 3590, 3672, 3697), it being a
general rule that propositions to appropriate for salaries not
established by law or to increase salaries fixed by law are out of order
(IV, 3664-3667, 3676-3679). An exception to these general principles is
found in the established practice that in the absence of a general law
fixing a salary the amount appropriated in the last appropriation bill
has been held to be the legal salary (IV, 3687-3696). A law having
established an office and fixed a salary, it is not in order to provide
for an unauthorized office and salary in lieu of it (IV, 3680).
An <> appropriation
for a public work in excess of a fixed limit of cost (IV, 3583, 3584;
VII, 1133), or for extending a service beyond the limits assigned by an
executive officer exercising a lawful discretion (IV, 3598), or by
actual law (IV, 3582, 3585), or for purposes prohibited by law are out
of order (IV, 3580, 3581, 3702), as is an appropriation from the Highway
Trust Fund where the project is specifically authorized from the general
fund (Sept. 23, 1993, p. 22175). However, the mere appropriation of a
sum to complete a work does not fix a limit of cost such as would
exclude future appropriations (IV, 3761). A declaration of policy in an
act followed by specific provisions conferring authority upon a
governmental agency to perform certain functions is not construed to
authorize appropriations for purposes germane to the policy but not
specifically authorized by the act (VII, 1200). A point of order will
not lie against an amendment proposing to increase a lump sum for public
works projects where language in the bill limits use of the lump sum
appropriation to projects as authorized by law (Procedure, ch. 25, sec.
5.5), but where language in the bill limits use of the lump sum both to
projects ``authorized by law'' and ``subject, where appropriate, to
enactment of authorizing legislation,'' that paragraph constitutes an
appropriation in part for some unauthorized projects and is not in order
(June 6, 1985, p. 14617).
The provision <> excepting public works and objects that are already in
progress from the requirement that appropriations be authorized by
existing law (IV, 3578) has historically been applied only in cases of
general revenue funding (Sept. 22, 1993, p. 22140; Sept. 23, 1993, p.
22173). An appropriation in violation of existing law or to extend a
service beyond a fixed limit is not in order as the continuance of a
public work (IV, 3585, 3702-3724; VII, 1332; Sept. 23, 1993, pp. 22173;
Deschler's Precedents, vol. 8, ch. 26, sec. 8.9). The ``works in
progress'' exception may not be in
[[Page 806]]
voked to fund a project governed by a lapsed authorization and may not
be invoked to fund a project that is not yet under construction (July
31, 1995, p. 21207). Where existing law (40 U.S.C. 606) specifically
prohibits the making of an appropriation to construct or alter any
public building involving more than $500,000 unless approved by the
House and Senate Public Works Committees, an appropriation for such
purposes not authorized by both committees is out of order
notwithstanding the ``works in progress'' exemption, since the law
specifically precludes the appropriation from being made (June 8, 1983,
p. 14855). An appropriation from the Highway Trust Fund for an ongoing
project was held not in order under the ``works in progress'' exception
where the Internal Revenue Code ``occupied the field'' with a
comprehensive authorization scheme not embracing the specified project
(Sept. 22, 1993, p. 22140; Sept. 23, 1993, p. 22173). Interruption of a
work does not necessarily remove it from the privileges of the rule (IV,
3705-3708); but the continuation of the work must not be so conditioned
in relation to place as to become a new work (IV, 3704). It has been
held that a work has not been begun within the meaning of the rule when
an appropriation has been made for a site for a public building (IV,
3785), or when a commission has been created to select a site or when a
site has actually been selected for a work (IV, 3762-3763), or when a
survey has been made (IV, 3782-3784). By ``public works and objects
already in progress'' are meant tangible matters like buildings, roads,
etc., and not duties of officials in executive departments (IV, 3709-
3713), or the continuance of a work indefinite as to completion and
intangible in nature like the gauging of streams (IV, 3714, 3715). A
general system of roads on which some work has been done, or an
extension of an existing road (Sept. 22, 1993, p. 22140), may not be
admitted as a work in progress (VII, 1333). Concerning reappropriation
for continuation of public works in progress, see Sec. 1031, supra.
Thus the <> continuation of the following works has been admitted:
A topographical survey (IV, 3796, 3797; VII, 1382), a geological map
(IV, 3795), marking of a boundary line (IV, 3717), marking graves of
soldiers (IV, 3788), a list of claims (IV, 3717), and recoinage of coins
in the Treasury (IV, 3807); but the following works have not been
admitted: Investigation of materials, like coal (IV, 3721), scientific
investigations (IV, 3719; VII, 1345), duties of a commission (IV, 3720;
VII, 1344), extension of foreign markets for goods (IV, 3722), printing
of a series of opinions indefinite in continuance (IV, 3718), free
evening lectures in the District of Columbia (IV, 3789), certain ongoing
projects from the Highway Trust Fund (Sept. 22, 1993, pp. 22140; Sept.
23, 1993, pp. 22173), extension of an existing road (Sept. 22, 1993, p.
22140), continuation of an extra compensation for ordinary facility for
carrying the mails (IV, 3808), although the continuation of certain
special mail facilities has been admitted (IV, 3804-3806). However,
appropriations for rent and repairs of buildings or Government roads
(IV, 3793, 3798) and bridges (IV, 3803) have been
[[Page 807]]
admitted as in continuation of a work (IV, 3777, 3778), although it is
not in order as such to provide for a new building in place of one
destroyed (IV, 3606). It is not in order to repair paving adjacent to a
public building but in a city street, although it may have been laid
originally by the Government (IV, 3779). The purchase of adjoining land
for a work already established has been admitted under this principle
(IV, 3766-3773) and also additions to existing buildings in cases where
no limits of cost have been shown (IV, 3774, 3775). However, the
purchase of a separate and detached lot of land is not admitted (IV,
3776). The continuation of construction at the Kennedy Library, a
project owned by the United States and funded by a prior year's
appropriation, has been admitted notwithstanding the absence of any
current authorization (June 14, 1988, p. 14335). A provision of law
authorizing Commissioners of the District of Columbia to take over and
operate the fish wharves of the city of Washington was held insufficient
authority to admit an appropriation for reconstructing the fish wharf
(VII, 1187).
Appropriations for <> new buildings at
Government institutions have sometimes been admitted (IV, 3741-3750)
when intended for the purposes of the institution (IV, 3747); but later
decisions, in view of the indefinite extent of the practice made
possible by the early decisions, have ruled out propositions to
appropriate for new buildings in navy yards (IV, 3755-3759) and other
establishments (IV, 3751-3754). Appropriations for new schoolhouses in
the District of Columbia (IV, 3750; VII, 1358), for new Army hospitals
(IV, 3740), for new lighthouses (IV, 3728), armor-plate factories (IV,
3737-3739), and for additional playgrounds for children in the District
of Columbia (IV, 3792) have also been held not to be in continuation of
a public work.
By a former <> broad construction of the rule an
appropriation of a new and not otherwise authorized vessel of the Navy
had been held to be a continuance of a public work (IV, 3723, 3724); but
this line of decisions has been overruled (VII, 1351; Jan. 22, 1926, p.
2621). While appropriations for new construction and procurement of
aircraft and equipment for the Navy are not in order, appropriations for
continuing experiments and development work on all types of aircraft are
in order (Jan. 22, 1926, p. 2623). This former interpretation was
confined to naval vessels, and did not apply to vessels in other
services, like the Coast and Geodetic Survey or Lighthouse Service (IV,
3725, 3726), or to floating or stationary drydocks (IV, 3729-3736). The
construction of a submarine cable in extension of one already laid was
held not to be the continuation of a public work (IV, 3716), but an
appropriation for the Washington-Alaska military cable has been held in
order (VII, 1348).
[[Page 808]]
A <> provision changing
existing law is construed to mean the enactment of law where none exists
(IV, 3812, 3813). For example, the following provisions have been held
out of order: (1) permitting funds to remain available until expended or
beyond the fiscal year covered by the bill where existing law does not
permit such availability (Aug. 1, 1973, p. 27288); (2) permitting funds
to be available immediately upon enactment prior to the fiscal year
covered by the bill (July 29, 1986, p. 17981; June 28, 1988, p. 16255);
or (3) permitting funds to be available to the extent provided in
advance in appropriation Acts but not explicitly beyond the fiscal year
in question (July 21, 1981, p. 16687).
Although clause 2(b) permits the Committee on Appropriations to report
rescissions of appropriations, an amendment proposing a rescission
constitutes legislation under clause 2(c) (May 26, 1993, p. 11319), as
does a provision proposing a rescission of contract authority (July 29,
1998, p. ----). A proposal to amend existing law to provide for
automatic continuation of appropriations in the absence of timely
enactment of a regular appropriation bill constitutes legislation in
contravention of clause 2(c) (July 17, 1996, p. 17550; July 24, 1996, p.
18898). A proposal to designate an appropriation as ``emergency
spending'' within the meaning of the budget-enforcement laws is
fundamentally legislative in character (Sept. 8, 1999, pp. ----; June
19, 2000, p. ---- (sustained on appeal)). Similarly, a provision
containing an averment necessary to qualify for certain scorekeeping
under the Budget Act was conceded to be legislation (July 20, 1989, p.
15374), even though the Budget Act contemplates that expenditures may be
mandated to occur before or following a fiscal period if the law making
those expenditures specifies that the timing is the result of a
``significant'' policy change (July 20, 1989, p. 15374).
Although the object to be appropriated for may be described without
violating the rule (IV, 3864), an amendment proposing an appropriation
under a heading that indicates an unauthorized purpose as its object has
been ruled out (Oct. 29, 1991, p. 28814). For example, an amendment
proposing to make certain funds available for a specified report not
contemplated by existing law was held to constitute legislation in
violation of clause 2(c) (June 13, 2000, p. ----). The fact that a
legislative item has been carried in appropriation bills for many years
does not exempt it from a point of order (VII, 1445, 1656). The
reenactment from year to year of a law intended to apply during the year
of its enactment only is not relieved, however, from the point that it
is legislation (IV, 3822). Limits of cost for public works may not be
made or changed (IV, 3761, 3865-3867; VII, 1446), or contracts
authorized (IV, 3868-3870; May 14, 1937, p. 4595).
The Chair may examine legislative history established during debate on
an amendment against which a point of order has been reserved to resolve
any ambiguity therein when ruling on the eventual point of order
[[Page 809]]
(June 14, 1978, p. 17651), and may inquire after its author's intent
when attempting to construe an ambiguous amendment (Oct. 29, 1991, p.
28818).
Although the <> rule forbids a provision ``changing existing law,'' the
House, by practice, has established the principle that certain
``limitations'' may be admitted. Just as the House may decline to
appropriate for a purpose authorized by law, so may it by limitation
prohibit the use of the money for part of the purpose while
appropriating for the remainder of it (IV, 3936; VII, 1595). The
language of the limitation provides that some or all of the
appropriation under consideration may not be used for a certain
designated purpose (IV, 3917-3926; VII, 1580). This designated purpose
may reach the question of qualifications, for while it is not in order
to legislate as to the qualifications of the recipients of an
appropriation (Deschler's Precedents, vol. 8, ch. 26, secs. 53, 57.15),
the House may specify that no part of the appropriation may go to
recipients lacking certain qualifications (IV, 3942-3952; VII, 1655;
June 4, 1970, p. 18412; June 27, 1974, p. 21662; Oct. 9, 1974, p. 34712;
June 9, 1978, p. 16990).
A limitation amendment prohibiting the use of funds for the
construction of certain facilities unless such construction were subject
to a project agreement was held not in order during the reading of the
bill, even though existing law directed Federal officials to enter into
such project agreements, on the ground that limitation amendments are in
order during the reading only where existing law requires or permits the
inclusion of limiting language in an appropriation Act, and not merely
where the limitation is alleged to be ``consistent with existing law''
(June 28, 1988, p. 16267).
A limitation may place some minimal, incidential duties on Federal
officials, who must determine the effect of such a limitation on
appropriated funds. However, a provision may not impose additional
duties not required by law, either explicitly or implicitly, or make the
appropriation contingent upon the performance of such duties (VII, 1676;
June 11, 1968, p. 16712; July 31, 1969, pp. 21631-33; May 28, 1968, p.
15350; July 26, 1985, p. 20807; see Sec. 1054, infra). The fact that a
limitation may indirectly interfere with an executive official's
discretionary authority by denying the use of funds (June 24, 1976, p.
20408) or may impose certain incidental burdens on executive officials
(Aug. 25, 1976, p. 27737) does not destroy the character of the
limitation as long as it does not otherwise amend existing law and is
descriptive of functions and findings already required to be undertaken
by existing law.
The limitation must apply solely to the money of the appropriation
under consideration (VII, 1597, 1600, 1720; Feb. 26, 1958, p. 2895), and
may not be made applicable to money appropriated in other Acts (IV,
3927, 3928; VII, 1495, 1525; June 28, 1971, p. 22442; June 27, 1974, pp.
21670-72; May 13, 1981, p. 9663), and may not require funds available to
an agency in any future fiscal year for a certain purpose to be subject
to limitations specified in advance in appropriations Acts (May 8, 1986,
p. 10156). The tendency of a limitation to change existing law is
measured against
[[Page 810]]
the state of existing law ``for the period of the limitation,'' such
that the presence of the same limitation in the annual bill for the
previous fiscal year does not justify its inclusion in the pending
annual bill (Sept. 22, 1983, p. 25406, June 26, 2000, p. ----).
A restriction on authority to incur obligations is legislative in
nature and not a limitation on funds (July 13, 1987, p. 19507; Sept. 23,
1993, p. 22204). For example, a limitation on the authority of the
Commodity Credit Corporation to purchase sugar is legislative in nature
and not a limitation on funds (June 29, 2000, p. ----).
In construing a proposed limitation, the Chair may examine whether the
purpose of the limitation is legislative. For example, a limitation
accompanied by language stating a legislative motive or purpose is not
in order (Aug. 8, 1978, p. 24969; July 22, 1980, p. 19087; Sept. 16,
1980, p. 25604; Sept. 22, 1981, p. 21577). Similarly, where existing law
and the Constitution require a census to be taken of all persons, an
amendment that seeks to preclude the use of funds to exclude another
class ``known'' to the Secretary is not in order (Aug. 1, 1989, p.
17156). However, language may, by negatively refusing to include funds
for all or part of an authorized executive function, thereby affect
policy and restrict executive discretion to the extent of its denial of
availability of funds (IV, 3968-3972; VII, 1583, 1653, 1694; Sept. 14,
1972, p. 30749; June 21, 1974, p. 20601; Oct. 9, 1974, p. 34716). For
example, an appropriation may be withheld from a designated object by a
negative limitation on the use of funds, notwithstanding that contracts
may be left unsatisfied thereby (IV, 3987; July 10, 1975, p. 22005).
Coupling a denial of an appropriation with a negative restriction on
official duties constitutes by use of a double negative an affirmative
direction and is not in order (VII, 1690-1692). Similarly, using a
double negative to limit the availability of funds to prohibit the
obligation of funds for an unauthorized project (effectively authorizing
an unauthorized project) is not in order (Sept. 23, 1993, p. 22209).
It is not in order, even by language in the form of a limitation, to
restrict not the use or amount of appropriated funds but the
discretionary authority conferred by law to administer their
expenditure, such as by limiting the percentage of funds that may be
apportioned for expenditure within a certain period of time (Deschler's
Precedents, vol. 8, ch. 26, sec. 51.23), or by precluding the obligation
of certain funds until funds provided by another Act have been obligated
(Deschler's Precedents, vol. 8, ch. 26, sec. 48.8). The burden is on the
proponent to show that such a proposal does not change existing law by
restricting the timing of the expenditure of funds rather than their
availability for specified objects (Deschler's Precedents, vol. 8, ch.
26, secs. 64.23 and 80.5).
As long as a limitation merely restricts the expenditure of Federal
funds carried in the bill without changing existing law, the limitation
is in order, even if the Federal funds in question are commingled with
non-Federal
[[Page 811]]
funds that would have to be accounted for separately in carrying out the
limitation (Aug. 20, 1980, p. 22171).
The fact that existing law authorizes funds to be available until
expended or without regard to fiscal year limitation does not prevent
the Committee on Appropriations from limiting their availability to the
fiscal year covered by the bill unless existing law mandates
availability beyond the fiscal year (June 25, 1974, p. 21040; see also
Procedure, ch. 25, secs. 9-17). The fact that a provision would
constitute legislation for only a year does not make it a limitation in
order under the rule (IV, 3936).
A proposition to construe a law may not be admitted (IV, 3936-3938,
see Sec. 1055, infra). Care also should be taken that the language of
limitation be not such as, when fairly construed, would change existing
law (IV, 3976-3983) or justify an executive officer in assuming an
intent to change existing law (IV, 3984; VII, 1706).
Although the Committee on Appropriations may include in a general
appropriation bill language not in existing law limiting the use of
funds in the bill, if such language also constitutes an appropriation it
must be authorized by law (June 21, 1988, p. 15439). An amendment
placing a limitation on funds for activities unrelated to the functions
of departments and agencies addressed by the bill is not germane under
clause 7 of rule XVI (July 10, 2000, p. ----).
Propositions to <> establish affirmative directions for executive
officers (IV, 3854-3859; VII, 1443; July 31, 1969, p. 21675; June 18,
1979, p. 15286; July 1, 1987, pp. 18654 and 18655; June 27, 1994, p.
14572), even in cases where they may have discretion under the law so to
do (IV, 3853; June 4, 1970, p. 18401; Aug. 8, 1978, p. 24959), or to
affirmatively take away an authority or discretion conferred by law (IV,
3862, 3863; VII, 1975; Mar. 30, 1955, p. 4065; June 21, 1974, p. 20600;
July 31, 1985, p. 21909), are subject to a point of order.
Where language implicitly places new duties on officers of the
Government or implicitly requires them to make investigations, compile
evidence, or make judgments and determinations not otherwise required of
them by law, such as to judge intent or motives, then it assumes the
character of legislation and is subject to a point of order (July 31,
1969, pp. 21653, 21675, where the words ``in order to overcome racial
imbalance'' were held to impose additional duties, and Nov. 30, 1982, p.
28062, where the words ``to interfere with'' the rulemaking authority of
any regulatory agency were held to implicitly require the Office of
Management and Budget to make determinations not discernibly required by
law in evaluating and executing its responsibilities).
An amendment authorizing the President to reduce each appropriation in
the bill by not more than 10 percent was ruled out as legislation
conferring new authority on the President (May 31, 1984, p. 14617; June
6, 1984, p. 15120). The fact that an executive official may have been
directed by an Executive Order to consult another executive official
prior to taking
[[Page 812]]
an action does not permit inclusion of language directing the official
being consulted to make determinations not specifically required by law
(July 22, 1980, p. 19087).
A limitation may not: (1) be applied directly to the official
functions of executive officers (IV, 3957-3966; VII, 1673, 1678, 1685),
(2) directly interfere with discretionary authority in law by
establishing a level of funding below which expenditures may not be made
(VII, 1704; July 20, 1978, p. 21856), (3) condition the availability of
funds or the exercise of contract authority upon an interpretation of
local law where that interpretation is not required by existing law
(July 17, 1981, p. 16327); (4) require new determinations of full
Federal compliance with mandates imposed upon States (July 22, 1981, p.
16829); (5) require the evaluation of the theoretical basis of a program
(July 22, 1981, p. 16822); (6) require new determinations of propriety
or effectiveness (Oct. 6, 1981, p. 23361; May 25, 1988, p. 12275), or
satisfactory quality (Aug. 1, 1986, p. 18647); (7) incorporate by
reference determinations already made in administrative processes not
affecting programs funded by the bill (Oct. 6, 1981, p. 23361); (8)
require new determinations of rates of interest payable (July 29, 1982,
p. 18624; Dec. 9, 1982, p. 29691); (9) apply standards of conduct to
foreign entities where existing law requires such conduct only by
domestic entities (July 17, 1986, p. 16951); (10) require the
enforcement of a standard where existing law only requires inspection of
an area (July 30, 1986, p. 18189); (11) prohibit the availability of
funds for the purchase of ``nondomestic'' goods and services (Sept. 12,
1986, p. 23178); (12) mandate contractual provisions (May 18, 1988, p.
11389); and (13) authorize the adjustment of wages of Government
employees (June 21, 1988, p. 15451; Apr. 26, 1989, p. 7525) or permit an
increase in Members' office allowances only ``if requested in writing''
(Oct. 21, 1990, p. 31708); (14) convert an existing legal prerequisite
for the issuance of a regulatory permit into a prerequisite for even the
preliminary processing of such a permit (July 22, 1992, p. 18825); (15)
mandate reductions in various appropriations by a variable percentage
calculated in relation to ``overhead'' (Deschler's Precedents, vol. 8,
ch. 26, sec. 5.6; June 24, 1992, p. 16110); (16) require an agency to
investigate and determine whether private airports are collecting
certain fees for each enplaning passenger (Sept. 23, 1993, p. 22213);
(17) require an agency to investigate and determine whether a person or
entity entering into a contract with funds under the pending bill is
subject to a legal proceeding commenced by the Federal Government and
alleging fraud (Sept. 17, 1997, p. ----); (18) require an agency to
determine whether building services are ``usually'' provided through the
Federal Building Fund to an agency not paying a level of assessment
specified elsewhere (and not necessarily applicable) (July 16, 1998, p.
----); (19) require a determination of ``successor agency'' status
(Sept. 26, 1997, p. ----); (20) require a determination of whether a
delegate or envoy to the United Nations has ``advocated'' the adoption
of a certain convention (June 26, 2000, p. ----); (21) require tests or
reports not required under existing law (May 19, 2000, p. ----); (22)
impose a new duty
[[Page 813]]
to tally violations of law by contractors where existing law required
information on violations but not on the number thereof (June 7, 2000,
p. ----); (23) require an investigation of the conscription requirements
of other nations (July 13, 2000, p. ----); (24) require a determination
of whether ``efforts'' have been made to change any nation's laws
regarding abortion, family planning, or population control (July 13,
2000, p. ----).
On the other hand, the following limitations have been held in order
as not placing new duties on Federal officials: (1) denying the use of
funds to pay the salaries of Federal officials who perform certain
functions under existing law if the description of those duties
precisely follows existing law and does not require them to perform new
duties (June 24, 1976, p. 20373); (2) denying the use of funds to a
Federal official not in compliance with an existing law that he is
charged with enforcing (Sept. 10, 1981, p. 20110); (3) reducing the
availability of funds for trade adjustment assistance by amounts of
unemployment insurance entitlements where the law establishing trade
adjustment assistance already required the disbursing agency to take
into consideration levels of unemployment insurance in determining
payment levels (June 18, 1980, p. 15355); (4) denying use of funds to
carry out (or pay the salaries of persons who carry out) tobacco crop
and insurance programs (July 20, 1995, p. 19798); (5) denying the use of
funds for any transit project exceeding a specified cost-effectiveness
index where the Chair was persuaded that the limitation applied to
projects for which indexes were already required by law (Sept. 23, 1993,
p. 22206); (6) denying the use of funds to enforce FAA regulations to
require domestic air carriers to surrender more than a specified number
of ``slots'' at a given airport in preference of international air
carriers where the Chair was persuaded that existing regulations already
required the FAA to determine the origin of withdrawn slots (Sept. 23,
1993, p. 22212); (7) denying the use of funds for troops ``except in
time of war'' (Deschler's Precedents, vol. 8, ch. 26, sec. 70.1) or
``except in time of emergency'' (VII, 1657, which was the basis for the
preceding ruling); (8) denying the use of funds to implement any
sanction imposed by the United States on private commercial sales of
agricultural commodities, medicine, or medical supplies to Cuba except
for a sanction imposed pursuant to agreement with one or more other
countries (July 20, 2000, p. ----); (9) denying the use of funds by the
Forest Service to construct roads or prepare timber sales in certain
roadless areas where the executive was already charged by law with
ongoing responsibility to maintain a comprehensive and detailed
inventory of all land and renewable resources of the National Forest
System (July 18, 1995, p. 19357); (10) denying use of funds to eliminate
an existing legal requirement for sureties on custom bonds (June 27,
1984, p. 19101); (11) denying use of funds by any Federal official in
any manner that would prevent a provision of existing law from being
enforced (relating to import restrictions) (June 27, 1984, p. 19101);
and (12) denying use of funds for any reduction in the number of Customs
Service regions or for any consolidation of Customs Service offices
(June 27, 1984, p. 19102).
[[Page 814]]
A paragraph prohibiting the use of funds to perform abortions except
where the mother's life would be endangered if the fetus were carried to
term (or where the pregnancy was a result of rape or incest) is
legislation, since requiring Federal officials to make new
determinations and judgments not required of them by law, regardless of
whether private or State officials administering the funds in question
routinely make such determinations (June 17, 1977, p. 1969; June 30,
1993, p. 14871; July 16, 1998, p. ----). The fact that such a provision
relating to abortion funding may have been included in appropriation
Acts in prior years applicable to funds in those laws does not permit
the inclusion of similar language requiring such determinations, not
required by law, with respect to funds for the fiscal year in question
(Sept. 22, 1983, p. 25406); and where the provision, applicable to
Federal funds, was permitted to remain in a bill (no point of order
having been made), an amendment striking the word ``Federal,'' and
thereby broadening the provision to include District of Columbia funds
as well, was ruled out (Nov. 15, 1989, p. 29004). However, to such a
provision permitted to remain in a general appropriation bill, an
amendment ``merely perfecting'' the exemption to address cases where the
health of the mother would be endangered if the fetus were carried to
term was held not to constitute further legislation by requiring a
different or more onerous determinations (June 27, 1984, p. 19113). An
amendment providing that no Federal funds provided in the District of
Columbia general appropriation bill be used to perform abortions is not
legislation, since Federal officials have the responsibility to account
for all appropriations for the annual Federal payment and for
disbursement of all taxes collected by the District of Columbia,
pursuant to the D.C. Code (July 17, 1979, p. 19066).
An exception to a limitation on funds for the Office of Personnel
Management to enter contracts for health benefit plans that required
determinations of ``equivalence'' of benefits was held to impose new
duties (July 16, 1998, p. ----). However, an exception to a similar
limitation that merely excepted certain specified coverage and plans was
held not to impose new duties (July 16, 1998, p. ----). Similarly, a
limitation denying the use of funds in an appropriation bill for the
General Services Administration to dispose of Federally owned
``agricultural'' land declared surplus was held to impose new duties
since the determination whether surplus lands are ``agricultural'' was
not required by law (Aug. 20, 1980, pp. 22156-58). However, a limitation
denying the use of funds for any transit project exceeding a specified
cost-effectiveness index was held not to impose new duties where the
Chair was persuaded that the limitation applied to projects for which
indexes were already required by law (Sept. 23, 1993, p. 22206).
Over a period dating from 1908, the House had developed a line of
precedent to the effect that language restricting the availability of
funds in a general appropriation bill could be a valid limitation if,
rather than imposing new duties on a disbursing official or requiring
new determinations of that official, it and passively addressed the
state of knowledge of the
[[Page 815]]
official (VII, 1695; cf. Aug. 1, 1989, p. 17156, and June 22, 1995, p.
16844 (limitations in recommittal ruled out on basis of form rather than
of legislative content)). This reasoning culminated in a ruling in the
104th Congress admitting as a valid limitation an amendment prohibiting
the use of funds in the bill to execute certain accounting transactions
when specified conditions were ``made known'' to the disbursing official
(July 17, 1996, p. 17542). In the 105th Congress this entire line of
precedent was overtaken by changes in paragraphs (b) and (c) of this
clause that treat as legislation a provision that makes funding
contingent on whether circumstances not determinative under existing law
are ``known'' (H. Res. 5, Jan. 7, 1997, p. ----; July 15, 1997, p. ----;
July 24, 1997, p. ----).
An amendment <> making an appropriation contingent upon a recommendation
(June 27, 1979, p. 17054) or action not specifically required by law is
legislation; such as a provision limiting the use of funds in a bill
``unless'' or ``until'' an action contrary to existing law is taken
(Deschler's Precedents, vol. 8, ch. 26, sec. 47.1; July 24, 1996, p.
18888). Where existing law requires an agency to furnish certain
information to congressional committees upon request, without a
subpoena, it is not in order to make funding for that agency contingent
upon its furnishing information to subcommittees upon request (July 29-
30, 1980, p. 20475), or contingent upon submission of an agreement by a
Federal official to Congress and congressional review thereof (July 31,
1986, p. 18370). Similarly, it is not in order to condition funds on
legal determinations to be made by a Federal court and an executive
department (June 28, 1988, p. 16261; see Deschler's Precedents, vol. 8,
ch. 26, sec. 47.2).
Provisions making the availability of funds contingent upon subsequent
congressional action have, under the most recent precedents, been ruled
out as legislation (June 30, 1942, p. 5826; May 15, 1947, p. 5378; June
27, 1994, p. 14613). However, a limitation on the use of funds to buy
real estate or establish new offices except where Congress had approved
and funded such activity (June 18, 1991, p. 15218) was held in order.
The following provisions have been ruled out as legislation: (1)
making the availability of certain funds contingent upon subsequent
congressional action on legislative proposals resolving the policy issue
(Nov. 18, 1981, p. 28064); (2) making the availability of funds
contingent upon subsequent enactment of legislation containing specified
findings (Nov. 2, 1983, p. 30503); and (3) changing a permanent
appropriation in existing law to restrict its availability until all
general appropriation bills are presented to the President (June 29,
1987, p. 18083). A section in a general appropriation bill directly
contravening existing law to subject the use of local funds to
congressional approval was held to constitute legislation where it was
shown that some local (District of Columbia) funds deriving from
interest accounts were available to the Financial Control Board without
subsequent congressional approval (Aug. 6, 1998, p. ----).
[[Page 816]]
Two rulings upholding the admissibility of amendments making the
availability of funds contingent upon subsequent congressional action
have been superseded by the precedents cited above (June 11, 1968, p.
16692; Sept. 6, 1979, p. 23360).
The following provisions also have been held to be legislation as they
required: (1) a congressional committee to promulgate regulations to
limit the use of an appropriation (June 13, 1979, p. 14670), or
otherwise to direct the activities of a committee (June 24, 1992, pp.
16087); (2) the Selective Service Administration to issue regulations to
bring its classifications into conformance with a Supreme Court decision
(July 20, 1989, p. 15405); and (3) a change in a rule of the House (IV,
3819). A provision constituting congressional disapproval of a deferral
of budget authority proposed by the President pursuant to the
Impoundment Control Act is not in order if included in a general
appropriation bill rather than in a separate resolution of disapproval
under that Act (July 29, 1982, pp. 18625, 18626). An amendment making
the availability of funds contingent upon a substantive determination by
a state or local government official or agency that is not otherwise
required by existing law has been ruled out as legislation (July 25,
1985, p. 20569).
A provision <> proposing to construe existing law is itself legislative and
therefore not in order (IV, 3936-3938; May 2, 1951, p. 4747; July 26,
1951, p. 8982). However, an official's general responsibility to
construe the language of a limitation on the use of funds, absent
imposition of an affirmative direction not required by law, does not
destroy the validity of a limitation (June 27, 1974, pp. 21687-94).
Where it is asserted that duties ostensibly occasioned by a limitation
are already imposed by existing law, the Chair may take cognizance of
judicial decisions and rule the limitation out on the basis that the
case law is not uniform, current, or finally dispositive (June 16, 1977,
pp. 19365-74; June 7, 1978, p. 16676). For example, a limitation
prohibiting the use of funds for an inspection conducted by a regulatory
agency without a search warrant has been held out of order as imposing a
new duty not uniformly required by case law (June 16, 1977, pp. 19365-
74). Similarly, an amendment denying the use of funds for an agency to
apply certain provisions of law under court decisions in effect on a
prior date has been held out of order as requiring the official to apply
noncurrent case law (June 7, 1978, p. 16655).
A provision prescribing a rule of construction is legislation
(Deschler's Precedents, vol. 8, ch. 26, sec. 25.15). For example, a
provision prescribing a prospective rule of construction for possible
(future) tax enactments was held to constitute legislation (June 21,
2000, p. ----). Similarly, a provision construing a limitation in a bill
by affirmatively declaring the meaning of the prohibition is legislation
(May 17, 1988, p. 11305); and a provision prescribing definitions for
terms contained in a limitation may be legislation (Deschler's
Precedents, vol. 8, ch. 26, secs. 25.7, 25.11). Language ex
[[Page 817]]
cepting certain appropriations from the sweep of a broader limitation
may be in order (Deschler's Precedents, vol. 8, ch. 26, sec. 25.2). It
also has been held in order to except from the operation of a specific
limitation on expenditures certain of those expenditures that are
authorized by law by prohibiting a construction of the limitation in a
way that would prevent compliance with that law (Deschler's Precedents,
vol. 8, ch. 26, sec. 25.10; June 18, 1991, p. 15218). Similarly, a
limitation on certain payments to persons in ``excess of $500,'' but
stating that the limitation would not be ``construed to deprive any
share renter of payments'' to which he might otherwise be entitled was
held in order (Deschler's Precedents, vol. 8, ch. 26, sec. 66.1);
The mere recitation in an amendment that a determination is to be made
pursuant to existing laws and regulations, absent a citation to the law
imposing such responsibility, is not sufficient proof by the proponent
of an amendment to overcome a point of order that the amendment
constitutes legislation (Sept. 16, 1980, p. 25606; May 8, 1986, p.
10156). A limitation denying the use of funds to apply certain
provisions of the Internal Revenue Code other than under regulations in
effect on a prior date is legislation since requiring an official to
apply regulations no longer current in order to render an appropriation
available (June 7, 1978, p. 16655; Aug. 19, 1980, pp. 21978-80).
However, an exception to a limitation on the use of funds for designated
Federal activities that were already authorized by law in more general
terms, was held in order as not containing legislation (June 27, 1979,
pp. 17033-35).
Language waiving provisions of an existing law that did not
specifically permit inclusion of such a waiver in an appropriation bill
has been ruled out (Nov. 13, 1975, p. 36271; June 20, 1996, p. 14847;
Mar. 29, 2000, p. ----; May 19, 2000, p. ----, p. ----; June 13, 2000,
p. ----), as has language identical to that contained in an
authorization bill previously passed by the House but not yet signed
into law (Aug. 4, 1978, p. 24436), or a proposition for repeal of
existing law (VII, 1403).
Existing law may be repeated verbatim without violating the rule (IV,
3814, 3815), but the slightest change of the text renders it liable to a
point of order (IV, 3817; VII, 1391, 1394; June 4, 1970, p. 18405). It
is in order to include language descriptive of authority provided in law
for the operation of Government agencies and corporations so long as the
description is precise and does not change that authority in any respect
(June 15, 1973, p. 19843; Aug. 3, 1978, p. 24249); although language
merely reciting the applicability of current law to the use of earmarked
funds is permitted, a provision that elevates existing guidelines to
mandates for spending has been ruled out (July 12, 1989, p. 14432).
As it is in order by way of limitation to deny the use of funds for
implementation of an Executive Order, an amendment precisely describing
the contents of the Executive Order does not constitute legislation
solely for that reason (Mar. 16, 1977, p. 7748). The fact that the
regulation for which funds are denied may have been promulgated pursuant
to court order and
[[Page 818]]
pursuant to constitutional provisions is an argument on the merits of
the amendment and does not render it legislative in nature (Aug. 19,
1980, pp. 21981-84). An amendment prohibiting the use of funds to carry
out any ruling of the Internal Revenue Service that rules that taxpayers
are not entitled to certain charitable deductions was held in order as a
limitation, since merely descriptive of an existing ruling already
promulgated and not requiring any new determinations as to the
applicability of the limitation to other categories of taxpayers (July
16, 1979, pp. 18808-10).
A provision <> that mandates
a distribution of funds in contravention of an allocation formula in
existing law is legislation (July 29, 1982, pp. 18637, 18638; Oct. 5,
1983, p. 27335; Aug. 2, 1989, p. 18123; July 24, 1995, p. 20141), as is
an amendment that by such a mandate interferes with an executive
official's discretionary authority (Mar. 12, 1975, p. 6338), as in an
amendment requiring not less than a certain sum to be used for a
particular purpose where existing law does not mandate such expenditure
(June 18, 1976, p. 19297; July 29, 1982, p. 18623), or where an
amendment earmarks appropriated funds to the arts to require their
expenditure pursuant to standards otherwise applicable only as
guidelines (July 12, 1989, p. 14432). Where existing law directed a
Federal official to provide for sale of certain Government property to a
private organization in ``necessary'' amounts, an amendment providing
that no such property be withheld from distribution from qualifying
purchasers was legislation, since requiring disposal of all property and
restricting discretionary authority to determine ``necessary'' amounts
(Aug. 7, 1978, p. 24707). An amendment directing the use of funds to
assure compliance with an existing law, where existing law does not so
mandate, also is legislation (June 24, 1976, p. 20370). So-called
``hold-harmless'' provisions that mandate a certain level of expenditure
for certain purposes or recipients, where existing law confers
discretion or makes ratable reductions in such expenditures, also
constitute legislation (Apr. 16, 1975, p. 10357; June 25, 1976, p.
20557). A transfer of available funds from one department to another
with directions as to the use to which those funds must be put is
legislation (and also a reappropriation in violation of clause 2(a)(2)
of this rule) (Dec. 8, 1982, p. 29449). A provision requiring States to
match funds provided in an appropriation bill was held to constitute
legislation where existing law contained no such requirement (June 28,
1993, p. 14418). Where existing law prescribes a formula for the
allocation of funds among several categories, an amendment merely
reducing the amount earmarked for one of the categories is not
legislation, so long as it does not textually change the statutory
formula (July 24, 1995, p. 20133).
The House <> may, by agreeing to a report from the Committee on Rules or
by adopting an order under suspension of the rules, allow legislation on
general appropriation bills (IV, 3260-3263, 3839-3845). Where an
unauthorized appropriation or legislation is permitted to remain in a
gen
[[Page 819]]
eral appropriation bill by waiver or by failure to raise a point of
order, an amendment merely changing that amount and not adding
legislative language or earmarking separate funds for another
unauthorized purpose is in order (IV, 3823-3835, 3838; VII, 1405, 1413-
1415; June 9, 1954, p. 5963; July 27, 1954, p. 12287; Oct. 1, 1975, p.
31058; June 8, 1977, p. 17941; July 17, 1985, p. 19435; Sept. 11, 1985,
p. 23398; June 14, 1988, p. 14341). However, this does not permit an
amendment that adds additional legislation (IV, 3836, 3837, 3862; VII,
1402-1436; Dec. 9, 1971, p. 4595; Aug. 1, 1973, p. 27291; June 10, 1977,
p. 1802; July 30, 1985, p. 21532; July 23, 1986, p. 17446; June 26,
1987, p. 17655; June 28, 1988, pp. 16203, 16213; Aug. 2, 1989, p. 18172;
Nov. 15, 1989, p. 29004, June 23, 1998, p. ----; July 13, 2000, p. ----
), proposes a new unauthorized purpose (Dec. 8, 1971, p. 45487; Aug. 7,
1978, pp. 24710-12; May 25, 1988, p. 12256), earmarks for unauthorized
purposes (July 17, 1985, p. 19435; July 17, 1986, p. 16918; July 26,
1995, p. 20528; June 5, 1996, p. 13120), earmarks by directing a new use
of funds not required by law (July 26, 1985, pp. 20811, 20813), or
increases an authorized amount above the authorized ceiling (Aug. 4,
1999, p. ----).
An amendment adding a new paragraph indirectly increasing an
unauthorized amount contained in a prior paragraph permitted to remain
is subject to a point of order because the new paragraph is adding a
further unauthorized amount not merely perfecting (July 12, 1995, p.
18628; July 16, 1997, pp. ----; Sept. 9, 1997, p. ----; Sept. 17, 1998,
p. ----). However, a new paragraph indirectly reducing an unauthorized
amount permitted to remain in a prior paragraph passed in the reading is
not subject to a point of order because it is not adding a further
unauthorized amount (July 16, 1997, p. ----). Where by unanimous consent
an amendment is offered en bloc to a paragraph containing an
unauthorized amount not yet read for amendment, the amendment increasing
that unauthorized figure is subject to a point of order since at that
point it is not being offered to a paragraph that has been read and
permitted to remain (June 21, 1984, p. 17687). As required by clause
2(f), the Chair will query for points of order against the provisions of
an appropriation bill not yet reached in the reading but addressed by an
amendment offered en bloc under that clause as budget authority and
outlay neutral (July 22, 1997, p. ----).
The Chair examined an entire legislative provision permitted to remain
when ruling that an amendment to a portion of the provision was merely
perfecting (July 15, 1999, p. ----). An amendment to a general
appropriation bill is not subject to a point of order as adding
legislation for restating, verbatim, a legislative provision already
contained in the bill and permitted to remain (Aug. 27, 1980, p. 23519).
To a legislative provision permitted to remain conferring assistance
on a certain class of recipients, an amendment adding another class is
further legislation and is not merely perfecting (June 22, 1983, p.
16851). For example, the following amendments to legislative provisions
permitted to remain have been held to propose additional legislation:
(1) an amendment striking
[[Page 820]]
text that resulted in extending the legislative reach of the pending
bill (July 17, 1996, p. 17533); (2) an amendment extending a legislative
provision that placed certain restrictions on recipients of a defined
set of Federal payments and benefits to persons benefiting from a
certain tax status determined on wholly unrelated criteria (Aug. 3,
1995, p. 21967); (3) an amendment adding an additional nation to a
legislative provision addressing sanctions against one nation (July 13,
2000, p. ----).
On the other hand, to a legislative provision permitted to remain, an
amendment particularizing a definition in the language was held not to
constitute additional legislation where it was shown that the definition
being amended already contemplated inclusion of the covered class (Aug.
5, 1998, p. ----). To a legislative provision permitted to remain that
excepted from a denial of funds for abortions cases where the life of
the mother would be endangered if a fetus were carried to term, an
amendment excepting instead cases where the health of the mother would
be endangered if the fetus were carried to term was held not to
constitute further legislation, since determinations on the endangerment
of life necessarily subsume determinations on the endangerment of
health; and the amendment did not therefore require any different or
more onerous determinations (June 27, 1984, p. 19113).
To a paragraph permitted to remain though containing a legislative
proviso restricting the obligation of funds until a date within the
fiscal year, an amendment striking the delimiting date, thus applying
the restriction for the entire year, was held to be perfecting (July 30,
1990, p. 20442); but striking the date and inserting a new trigger (the
enactment of other legislation), was held to be additional legislation
(July 30, 1990, p. 20442).
The principle <> seems to be
generally well accepted that the House proposing legislation on a
general appropriation bill should recede if the other House persists in
its objection (IV, 3904-3908), and clause 5 of rule XXII (Sec. 1076,
infra) prohibits House conferees from agreeing to a Senate amendment
that proposes legislation on an appropriation bill without specific
authority from the House. However, where a Senate amendment proposing
legislation on a general appropriation bill is, pursuant to the edict of
clause 5 of rule XXII, reported back from conference in disagreement, a
motion to concur in the Senate amendment with a further amendment is in
order, even if the proposed amendment adds legislation to that contained
in the Senate amendment, and the only test is whether the proposed
amendment is germane to the Senate amendment reported in disagreement
(IV, 3909; VIII, 3188, 3189; Speaker McCormack, Dec. 15, 1970, p. 41504;
Aug. 1, 1979, pp. 22007-11; Speaker O'Neill, Dec. 12, 1979, p. 35520;
June 30, 1987, p. 18308).
[[Page 821]]
``holman rule'' on retrenching expenditures
Decisions under <> the so-called ``Holman Rule'' in clause 2 of rule XXI
have been rare in the modern practice of the House. The trend in
construing language in general appropriation bills or amendments thereto
has been to minimize the importance of the ``Holman Rule'' in those
cases where the decision can be made on other grounds. The practice of
using limitations in appropriation bills has been perfected in recent
years so that most modern decisions by the Chair deal with distinctions
between such limitations and matters that are considered to be
legislation (see Sec. Sec. 1053-1057, supra). Under the modern practice,
the ``Holman Rule'' only applies where an obvious reduction is achieved
by the provision in question and does not apply to limiting language
unaccompanied by a reduction of funds in the bill (July 16, 1979, pp.
18808-10). It has no application to an amendment to an appropriation
bill that does not legislate but is merely a negative limitation citing
but not changing existing law (June 18, 1980, p. 15355).
A paragraph containing legislation reported in an appropriation bill
to be in order must on its face show a retrenchment of a type that
conforms to the requirements of the rule (Mar. 17, 1926, p. 5804).
The reduction of expenditure must appear as a necessary result, in
order to bring an amendment or provision within the exception to the
rule. It is not sufficient that such reduction would probably, or would
in the opinion of the Chair, result therefrom (IV, 3887; VII, 1530-
1534). Thus, an amendment to a general appropriation bill providing that
appropriations made in that act are hereby reduced by $7 billion, though
legislative in form, was held in order under the ``Holman Rule''
exception (Apr. 5, 1966, p. 7689), but an amendment providing for
certain reductions of appropriations carried in the bill based on the
President's budget estimates was held not to show a reduction on its
face and to provide merely speculative reductions (Deschler's
Precedents, vol. 8, ch. 26, sec. 5.6; June 24, 1992, p. 16110). An
amendment authorizing the President to reduce each appropriation in the
bill by not more than 10 percent was ruled out as legislation conferring
new authority on the President (May 31, 1984, p. 14617; June 6, 1984, p.
15120). An amendment reducing an unauthorized amount permitted to remain
in a general appropriation bill is in order as a retrenchment under this
clause (Oct. 1, 1975, p. 31058). An amendment to a general appropriation
bill denying the availability of funds to certain recipients but which
requires Federal officials to make additional determinations as to the
qualifications of recipients is legislation and is not a retrenchment of
expenditures where it is not apparent that the prohibition will reduce
the amounts covered by the bill (June 26, 1973, p. 21389).
The amendment must not only show on its face an attempt to retrench
but must also be germane to some provision in the bill even though
offered by direction of the committee having jurisdiction of the subject
matter of the amendment (VII, 1549; Dec. 16, 1911, p. 442). An amendment
providing
[[Page 822]]
that appropriations ``herein and heretofore made'' shall be reduced by
$70 million through the reduction of Federal employees as the President
determines was held to be legislative and not germane to the bill, since
it went to funds other than those carried therein, and was therefore not
within the ``Holman Rule'' exception (Oct. 18, 1966, p. 27425).
An amendment reducing an amount in an appropriation bill for the
Postal Service and prohibiting the use of funds therein to implement
special bulk third-class rates for political committees was held in
order since not specifically requiring a new determination and since
constituting a retrenchment of expenditures even if assumed to be
legislative (July 13, 1979, pp. 18453-55).
As long as an amendment calls for an obvious reduction at some point
in time during the fiscal year, the amendment is in order under the
``Holman Rule'' even if the reduction takes place in the future in an
amount actually determined when the reduction takes place (for example,
by formula) (VII, 1491, 1505; July 30, 1980, pp. 20499-20503). To an
amendment that is in order under the ``Holman Rule,'' containing
legislation but retrenching expenditures by formula for every agency
funded by the bill, an amendment exempting from that reduction several
specific programs does not add further legislation and is in order (July
30, 1980, pp. 20499-20503).
A motion to recommit the District of Columbia appropriation bill with
instructions to reduce the proportion of the fund appropriated from the
Public Treasury from one-half, as provided in the bill, to one-fourth of
the entire appropriation is in order, since the effect of the amendment
if adopted would reduce the expenditure of public money although not
reducing the amount of the appropriation (VII, 1518).
The term ``retrenchment'' means the reduction of the amount of money
to be taken out of the Federal Treasury by the bill, and therefore a
reduction of the amount of money to be contributed toward the expenses
of the District of Columbia is in order as a retrenchment (VII, 1502).
An amendment proposed to an item for the recoinage of uncurrent
fractional silver, which amendment struck out the amount appropriated
and added a provision for the coinage of all the bullion in the Treasury
into standard silver dollars, the cost of such coinage and recoinage to
be paid out of the Government's seigniorage, was held not to be in order
under the rule; first, because not germane to the subject matter of the
bill (the sundry civil); second, because it did not appear that any
retrenchment of expenditure would result, the seigniorage being the
property of the Government as other funds in the Treasury (VII, 1547).
To an item of appropriation for inland transportation of mails by star
routes an amendment was offered requiring the Postmaster General to
provide routes and make contracts in certain cases, with the further
provision ``and the amount of appropriation herein for star routes is
hereby reduced to $500.'' A point of order made against the first or
legislative
[[Page 823]]
part of the amendment was sustained, which decision was, on appeal,
affirmed by the committee (VII, 1555).
To a clause appropriating for the foreign mail service an amendment
reducing the appropriation, and in addition repealing the act known as
the ``subsidy act,'' was held not in order because the repealing of this
act was not germane to the appropriation bill; and that to be in order
both branches of the amendment must be germane to the bill (VII, 1548).
A provision in the agricultural appropriation bill transferring the
supervision of the importation of animals from the Treasury to the
Department of Agriculture is out of order, being a provision changing
law and not retrenching expenditure (IV, 3886).
Where a paragraph containing new legislation provides in one part for
a discharge of employees, which means a retrenchment, and in another
part embodies legislation to bring about the particular retrenchment
which in turn shows on its face an expenditure the amount of which is
not apparent, the Chair is unable to hold that the net result will
retrench expenditures. However, where the additional legislation does
not show on its face an additional expenditure, the Chair will not
speculate as to a possible expenditure under the additional legislation
(VII, 1500).
As explained in the annotation in Sec. 1043, supra, the amendment of
clause 2(b) in the 98th Congress narrowed the ``Holman Rule'' exception
to the general prohibition against legislation to cover only
retrenchments reducing amounts of money covered by the bill, and not
retrenchments resulting from reduction of the number and salary of
officers of the United States or of the compensation of any person paid
out of the U.S. Treasury. Accordingly, the Chair held out of order an
amendment mandating the reduction of certain Federal salaries and
expenses as not confined to a reduction of funds in the bill (June 17,
1994, p. 13422). Paragraph (b) also eliminated separate authority
conferred upon legislative committees or commissions with proper
jurisdiction to report amendments retrenching expenditures, and
permitted legislative committees to recommend such retrenchments by
reduction of amounts covered by the bill to the Appropriations Committee
for discretionary inclusion in the reported bill. Paragraph (d) as added
in the 98th Congress provides a new procedure for consideration of all
retrenchment amendments only when reading of the bill has been completed
and only if the Committee of the Whole does not adopt a motion to rise
and report the bill back to the House. Other decisions which involved
interpretation of the ``Holman Rule,'' but which do not reflect the
current form or interpretation of that rule, are found in IV, 3846,
3885-3892; VII, 1484, 1486-1492, 1498, 1500, 1515, 1563, 1564, 1569;
June 1, 1892, p. 4920.
This <> provision from section
139(c) of the Legislative Reorganization Act of 1946 (2 U.S.C. 190f(c))
was made part of the standing rules in the 83d Congress (Jan. 3, 1953,
p. 24). Previously, a reappropriation of an unexpended balance for an
object authorized by law was in order on a general appropriation
[[Page 824]]
bill (IV, 3591, 3592; VII, 1156, 1158). This clause was amended in the
99th Congress by section 228(b) of the Balanced Budget and Emergency
Deficit Control Act of 1985 (P.L. 99-177) to permit the Committee on
Appropriations to report certain transfers of unexpended balances.
Consistent with clause 2 of rule XXI, and as codified in the 106th
Congress (H. Res. 5, Jan. 6, 1999, p. ----), violations of this clause
are enforced only against specific provisions in general appropriation
bills containing reappropriations rather than against consideration of
the bill (see, e.g., Procedure, ch. 25, sec. 18).
A provision in a general appropriation bill, or an amendment thereto,
providing that funds for a certain purpose are to be derived by
continuing the availability of funds previously appropriated for a prior
fiscal year is in violation of clause 2(a)(2) (former clause 6 of rule
XXI) (Aug. 20, 1951, p. 10393; Mar. 29, 1960, p. 6862; June 17, 1960, p.
13138; June 20, 1973, p. 20530; July 29, 1982, p. 18625; June 28, 1988,
p. 16255), and a reappropriation of unexpended prior year balances
prohibited by this clause is not in order under the guise of a ``Holman
Rule'' exception to clause 2 of rule XXI (Oct. 18, 1966, p. 27424). An
amendment to a general appropriation bill making any appropriations
which are available for the current fiscal year available for certain
new purposes was held out of order under clause 2(a)(2) since it was not
confined to the funds in the bill and would permit reappropriation of
unexpended balances (Oct. 1, 1975, p. 31090). That appropriations may be
authorized in law for a specified object does not permit an amendment to
a general appropriation bill to include legislative language mandating
the reappropriation of funds from other Acts (July 28, 1992, p. 19652).
This rule, however, is not applicable when the reappropriation
language is identical to legislative authorization language enacted
subsequent to the adoption of the rule, since the law is a more recent
expression of the will of the House (Sept. 5, 1961, p. 18133), nor when
a measure transferring unobligated balances of previously appropriated
funds contains legislative provisions and rules changes but no
appropriation of new budget authority and is neither in the form of an
appropriation bill nor the subject of a privileged report by the
Committee on Appropriations under rule XIII (Mar. 3, 1988, p. 3239).
The return of an unexpended balance to the Treasury is in order (IV,
3594).
To <> invoke the
protection of clause 2(f), an amendment must not increase the levels of
budget authority or outlays carried in the bill (Aug. 4, 1999, p. ----;
July 12, 2000, p. ----). An amendment otherwise in order under this
paragraph may nevertheless be in violation of clause 2(a)(1) if
increasing an appropriation above the authorized amount contained in the
bill (Aug. 4, 1999, p. ----).
[[Page 825]]
Transportation obligation limitations
3. <> It shall
not be in order to consider a bill, joint resolution, amendment, or
conference report that would cause obligation limitations to be below
the level for any fiscal year set forth in section 8103 of the
Transportation Equity Act for the 21st Century, as adjusted, for the
highway category or the mass transit category, as applicable.
The Transportation Equity Act for the 21st Century (sec. 8101(e), P.L.
105-178) added this provision as a new clause 9 of rule XXI. In the
106th Congress, this provision was transferred to clause 3 (H. Res. 5,
Jan. 6, 1999, p. ----). The Omnibus Consolidated and Emergency
Supplemental Appropriations Act, 1999 (sec. 108, div. C, P.L. 105-277;
112 Stat. 2681-586), included the following provision: ``Sec. 108. For
the purpose of any Rule of the House of Representatives, notwithstanding
any other provision of law, any obligation limitation relating to
surface transportation projects under section 1602 of P.L. 105-178 shall
be assumed to be administered on the basis of sound program management
practices that are consistent with past practices of the administering
agency permitting States to decide High Priority Project funding
priorities within state program allocations.'' This clause and the cited
law should be read together notwithstanding subsequent readoption of
clause 3 because the two are not mutually inconsistent.
The <> Wendell H.
Ford Aviation Investment and Reform Act for the 21st Century (sec. 106,
P.L. 106-181) added the following provision:
Sec. 106. Funding for Aviation Programs.
(a) Authorization of Appropriations.--
(1) Airport and airway trust fund guarantee.--
(A) In general.--The total budget resources made
available from the Airport and Airway Trust Fund each
fiscal year through fiscal year 2003 pursuant to
sections 48101, 48102, 48103, and 106(k) of title 49,
United States Code, shall be equal to the level of
receipts plus interest credited to the Airport and
Airway Trust Fund for that fiscal year. Such amounts may
be used only for aviation investment programs listed in
subsection (b).
(B) Guarantee.--No funds may be appropriated or
limited for aviation investment programs listed in
subsection (b) unless the amount described in
subparagraph (A) has been provided.
[[Page 826]]
(2) Additional authorizations of appropriations from the
general fund.--In any fiscal year through fiscal year 2003, if
the amount described in paragraph (1) is appropriated, there is
further authorized to be appropriated from the general fund of
the Treasury such sums as may be necessary for the Federal
Aviation Administration Operations account.
(b) Definitions.--In this section, the following definitions apply:
(1) Total budget resources.--The term ``total budget
resources'' means the total amount made available from the
Airport and Airway Trust Fund for the sum of obligation
limitations and budget authority made available for a fiscal
year for the following budget accounts that are subject to the
obligation limitation on contract authority provided in this Act
and for which appropriations are provided pursuant to
authorizations contained in this Act:
(A) 69-8106-0-7-402 (Grants in Aid for Airports).
(B) 69-8107-0-7-402 (Facilities and Equipment).
(C) 69-8108-0-7-402 (Research and Development).
(D) 69-8104-0-7-402 (Trust Fund Share of Operations).
(2) Level of receipts plus interest.--The term `level of
receipts plus interest' means the level of excise taxes and
interest credited to the Airport and Airway Trust Fund under
section 9502 of the Internal Revenue Code of 1986 for a fiscal
year as set forth in the President's budget baseline projection
as defined in section 257 of the Balanced Budget and Emergency
Deficit Control Act of 1985 (Public Law 99-177) (Treasury
identification code 20-8103-0-7-402) for that fiscal year
submitted pursuant to section 1105 of title 31, United States
Code.
(c) Enforcement of Guarantees.--
(1) Total airport and airway trust fund funding.--It shall not
be in order in the House of Representatives or the Senate to
consider any bill, joint resolution, amendment, motion, or
conference report that would cause total budget resources in a
fiscal year for aviation investment programs described in
subsection (b) to be less than the amount required by subsection
(a)(1)(A) for such fiscal year.
(2) Capital priority.--It shall not be in order in the House
of Representatives or the Senate to consider any bill, joint
resolution, amendment, motion, or conference report that
provides an appropriation (or any amendment thereto) for any
fiscal year through fiscal year 2003 for Research and
Development or Operations if the sum of the obligation
limitation for Grants-in-Aid for Airports and the appropriation
for Facilities and Equipment for such fiscal year is below the
sum of the authorized levels for Grants-in-Aid for Airports and
for Facilities and Equipment for such fiscal year.
The chairmen of the Committee on Rules and the Committee on
Transportation and Infrastructure inserted in the Record correspondence
concerning points of order established in this section (Mar. 15, 2000,
p. ----).
[[Page 827]]
Appropriations on legislative bills
4. <> A
bill or joint resolution carrying an appropriation may not be reported
by a committee not having jurisdiction to report appropriations, and an
amendment proposing an appropriation shall not be in order during the
consideration of a bill or joint resolution reported by a committee not
having that jurisdiction. A point of order against an appropriation in
such a bill, joint resolution, or amendment thereto may be raised at any
time during pendency of that measure for amendment.
This portion of the rule was adopted June 1, 1920 (VII, 2133). When
the House recodified its rules in the 106th Congress (H. Res. 5, Jan. 6,
1999, p. ----), this clause was returned to clause 4 where it had been
until moved to former clause 5(a) of rule XXI in the 93d Congress (H.
Res. 988, 93d Cong., Oct. 8, 1974, p. 34470).
A point of order under this rule cannot be raised against a motion to
suspend the rules (VIII, 3426), against a motion to discharge a
nonappropriating committee from consideration of a bill carrying an
appropriation (VII, 2144), or against a Senate amendment to an
appropriation bill (VII, 1572). However, it may be directed against an
item of appropriation in a Senate bill (VII, 2136, 2147; July 30, 1957,
pp. 13056, 13181). If the House deletes a provision in a Senate bill
under this rule, the bill is messaged to the Senate with the deletion in
the form of an amendment. The point of order may be made against an
appropriation in a Senate bill that, although not reported in the House,
is considered in lieu of a reported House ``companion bill'' (VII, 2137;
Mar. 29, 1933, p. 988). This clause applies to an amendment proposed to
a Senate amendment to a House bill not reported from the Committee on
Appropriations (Oct. 1, 1980, pp. 28638-42). The rule does not apply to
private bills since the committees having jurisdiction of bills for the
payment of private claims may report bills making appropriations within
the limits of their jurisdiction (VII, 2135; Dec. 12, 1924, p. 538). The
point of order under this rule does not apply to an appropriation in a
bill which has been taken away from a nonappropriating committee by a
motion to discharge (VII, 1019a). The point of order under this rule
does not apply to a special order reported from the Committee on Rules
``self-executing'' the adoption in the House to a reported bill of an
amendment containing an appropriation, since the
[[Page 828]]
amendment is not separately before the House during consideration of the
special order (Feb. 24, 1993, p. 3542).
The provision in this clause that a point of order against an
amendment containing an appropriation to a legislative bill may be made
``at any time'' has been interpreted to require that the point of order
be raised during the pendency of the amendment under the five-minute
rule (Mar. 18, 1946, p. 2365; Apr. 28, 1975, pp. 12043), and a point of
order will lie against an amendment during its pendency, even in its
amended form, although the point of order is against the amendment as
amended by a substitute and no point of order was raised against the
substitute prior to its adoption (Apr. 23, 1975, p. 12043). However, the
point of order must be raised during the initial consideration of the
bill or amendment under the five-minute rule, and a point of order
against similar language permitted to remain in the House version and
included in a conference report on a bill will not lie, since the only
rule prohibiting such inclusion (clause 5 of rule XXII) is limited to
language originally contained in a Senate amendment where the House
conferees have not been specifically authorized to agree thereto (May 1,
1975, p. 12752). Where the House has adopted a resolution waiving points
of order against certain appropriations in a legislative bill, a point
of order may nevertheless be raised against an amendment to the bill
containing an identical provision, since under this rule a point of
order may be raised against the amendment ``at any time'' (Apr. 23,
1975, p. 11512). A point of order against a direct appropriation in a
bill initially reported from a legislative committee and then
sequentially referred to and reported adversely by the Committee on
Appropriations was conceded and sustained as in violation of this clause
(Nov. 10, 1975, p. 35611). The point of order should be directed to the
item of appropriation in the bill and not to the act of reporting the
bill (VII, 2143), and cannot be directed to the entire bill (VII, 2142;
Apr. 28, 1975, p. 12043).
The term ``appropriation'' in the rule means the payment of funds from
the Treasury, and the words ``warranted and make available for
expenditure for payments'' are equivalent to ``is hereby appropriated''
and therefore not in order (VII, 2150). The words ``available until
expended,'' making an appropriation already made for one year available
for ensuing years, are not in order (VII, 2145).
The point of order provided for in this clause is not applicable to
the following provisions: (1) authorizing the Secretary of the Treasury
to use proceeds from the sale of bonds under the Second Liberty Bond Act
(public debt transactions) for the purpose of making loans, since such
loans do not constitute ``appropriations'' within the purview of the
rule (June 28, 1949, pp. 8536-38; Aug. 2, 1950, p. 11599); (2) exempting
loan guarantees in a legislative bill from statutory limitations on
expenditures (July 16, 1974, p. 23344); (3) authorizing the availability
of certain loan receipts where it can be shown that the actual
availability of those receipts remains contingent upon subsequent
enactment of an appropriation act (Sept. 10, 1975, p. 28300); (4)
increasing the duties of a commission (VII, 1578); (5)
[[Page 829]]
authorizing payment from an appropriation to be made (Jan. 31, 1923, p.
2794).
Language reappropriating, making available, or diverting an
appropriation or a portion of an appropriation already made for one
purpose to another (VII, 2146; Mar. 29, 1933, p. 988; Aug. 10, 1988, p.
21719), or for one fiscal year to another (Mar. 26, 1992, p. 7223), is
not in order. For example, the following provisions have been held out
of order: (1) expanding the definition in existing law of recipients
under a Federal subsidy program as permitting a new use of funds already
appropriated (May 11, 1976, pp. 13409-11); (2) authorizing the use,
without a subsequent appropriation, of funds directly appropriated by a
previous statute for a new purpose (Oct. 1, 1980, pp. 28637-40).
However, a modification of such a provision making payments for such new
purposes ``effective only to the extent and in such amounts as are
provided in advance in appropriation acts'' does not violate this clause
(Oct. 1, 1980, pp. 28638-42).
The following provisions have also been held to be in violation of
this clause: (1) directing a departmental officer to pay a certain sum
out of unexpended balances (VII, 2154); (2) authorizing the use of funds
of the Shipping Board (VII, 2147); (3) directing payments out of Indian
trust funds (VII, 2149); (4) making excess foreign currencies
immediately available for a new purpose (Aug. 3, 1971, p. 29109); (5)
authorizing the collection of fees or user charges by Federal agencies
and making the revenues collected therefrom available without further
appropriation (June 17, 1937, pp. 5915-18; Mar. 29, 1972, pp. 10749-51);
(6) transferring existing Federal funds into a new Treasury trust fund
to be immediately available for a new purpose (June 20, 1974, pp. 20273-
75); (7) transferring unexpended balances of appropriations from an
existing agency to a new agency created therein (Apr. 9, 1979, p. 7774);
(8) making a direct appropriation to carry out a part of the Energy
Security Act (Oct. 24, 1985, p. 28812); (9) requiring the diversion of
previously appropriated funds in lieu of the enactment of new budget
authority if a maximum deficit amount under the Deficit Control Act of
1985 is exceeded, though its stated purpose may be to avoid the
sequestration of funds (Aug. 10, 1988, p. 21719).
Section 401(a) of the Congressional Budget Act of 1974 (88 Stat. 317)
prohibits consideration in the House of any bill or resolution or
amendment which provides new spending authority (as that term is defined
in that section) unless that measure also provides that such new
spending authority is to be available only to the extent provided in
appropriation act (see Sec. 1127, supra). See also Procedure, ch. 25,
sec. 3, addressing appropriations on legislative bills generally.
[[Page 830]]
Tax and tariff measures and amendments
5. (a) <> A bill or joint resolution carrying a tax or tariff
measure may not be reported by a committee not having jurisdiction to
report tax or tariff measures, and an amendment in the House or proposed
by the Senate carrying a tax or tariff measure shall not be in order
during the consideration of a bill or joint resolution reported by a
committee not having that jurisdiction. A point of order against a tax
or tariff measure in such a bill, joint resolution, or amendment thereto
may be raised at any time during pendency of that measure for amendment.
This provision was added in the 98th Congress (H. Res. 5, Jan. 3,
1983, p. 34). Before the House recodified its rules in the 106th
Congress, this provision was found in former clause 5(b) of rule XXI (H.
Res. 5, Jan. 6, 1999, p. ----). A point of order under this paragraph
against a provision in a bill is in order at any time during
consideration of the bill for amendment in Committee of the Whole (Aug.
1, 1986, p. 18649). On October 4, 1989, the Chairman of the Committee of
the Whole, before ruling on several points of order under this
paragraph, enunciated several guidelines to distinguish taxes and
tariffs on the one hand and user or regulatory fees and other forms of
revenue on the other (p. 23260). On the opening day of the 102d
Congress, Speaker Foley inserted in the Congressional Record the
following statement of jurisdictional concepts underlying those same
distinctions and indicated his intention to exercise his referral
authority under rule X in a manner consistent with this paragraph (Jan.
3, 1991, p. 64; see also Jan. 4, 1995, p. 551; Jan. 3, 2001, p. ----):
Clause 5(b) (current clause 5(a)) of rule XXI prohibits the
reporting of a tax or tariff matter by any committee not having
that jurisdiction. Most of the questions of order arising under
this clause since its adoption in 1983 have related to
provisions that clearly affected the operation of the Internal
Revenue Code or the customs laws. From time to time, however,
such a question has related to a provision drafted as a user or
regulatory fee levied on members of a class that occasions or
avails itself of a particular governmental activity, typically
to generate revenue in support of that activity. In order to
provide guidance concerning the referral of bills, to assist
committees in staying within their appropriate jurisdictions
under rule X, to as
[[Page 831]]
sist committees without jurisdiction over tax or tariff measures
in complying with clause 5(b) of rule XXI, and to protect the
constitutional prerogative of the House to originate revenue
bills, the Speaker will make the following statement: Standing
committees of the House (other than the Committees on
Appropriations and Budget) have jurisdiction to consider user,
regulatory and other fees, charges, and assessments levied on a
class directly availing itself of, or directly subject to, a
governmental service, program, or activity, but not on the
general public, as measures to be utilized solely to support,
subject to annual appropriations, the service, program, or
activity (including agency functions associated therewith) for
which such fees, charges, and assessments are established and
collected and not to finance the costs of Government generally.
The fee must be paid by a class benefiting from the service,
program or activity, or being regulated by the agency; in short,
there must be a reasonable connection between the payors and the
agency or function receiving the fee. The fund that receives the
amounts collected is not itself determinative of the existence
of a fee or a tax. The Committee on Ways and Means has
jurisdiction over ``revenue measures generally'' under rule X.
That committee is entitled to an appropriate referral of broad-
based fees and could choose to recast such fees as excise taxes.
A provision only reauthorizing or amending an existing fee
without fundamental change, or creating a new fee generating
only a de minimis aggregate amount of revenues, does not
necessarily require a sequential referral to the Committee on
Ways and Means. The Chair intends to coordinate these principles
with the Committee on the Budget and the Congressional Budget
Office, especially in the reconciliation process, so that budget
scorekeeping does not determine, and reconciliation directives
and their implementation will not be inconsistent with,
committee jurisdiction. Further, it should be emphasized that
the constitutional prerogative of the House to originate revenue
measures will continue to be viewed broadly to include any
meaningful revenue proposal that the Senate may attempt to
originate.
Although in the case of most points of order against provisions in
bills or against amendments the burden is on the proponent of the
provision to show that it does not violate the cited rule, in the case
of a point of order under this paragraph against a provision in or an
amendment to a general appropriation bill affecting the use of funds
therein (otherwise traditionally in order if admissible under clause 2
of rule XXI), the burden is on the Member making the point of order to
show a necessary, certain, and inevitable change in revenue collections
or tax statuses or liabilities (there being no other funds available
that fiscal year under existing law) (Sept. 12, 1984, pp. 25108, 25109,
25120; July 26, 1985, p. 20806; Aug. 1, 1986, p. 18649; July 13, 1990,
p. 17473; June 18, 1991, p. 15189). Thus, in determining whether a
limitation in a general appropriation bill con
[[Page 832]]
stitutes a tax or tariff measure proscribed by this paragraph, the Chair
will consider argument as to whether the limitation effectively and
inevitably changes revenue collections and tax status or liability (Aug.
1, 1986, p. 18649). Similarly, in determining whether an amendment to a
general appropriation bill proposing a change in IRS funding priorities
constitutes a tax measure proscribed by this paragraph, the Chair will
consider argument as to whether the change would necessarily or
inevitably result in a loss or gain in tax liability and in tax
collection (June 18, 1991, p. 15189).
A limitation on the use of funds contained in a general appropriation
bill was held to violate this paragraph by denying the use of funds by
the Customs Service to enforce duty-free entry laws with respect to
certain imported commodities, thereby requiring the collection of
revenues not otherwise provided for by law (Oct. 27, 1983, p. 29611).
Similar rulings were issued: (1) where it was shown that the imposition
of the restriction on IRS funding for the fiscal year would effectively
and inevitably preclude the IRS or the Customs Service from collecting
revenues otherwise due and owing by law or require collection of revenue
not legally due or owing (July 26, 1985, p. 20806; Aug. 1, 1986, pp.
18649, 18650; July 17, 1996, p. 17563); and (2) where a provision in a
general appropriation bill prohibited the use of funds to impose or
assess certain taxes due under specified portions of the Internal
Revenue Code (July 13, 1990, p. 17473). In the 98th Congress, the Chair
sustained points of order under this paragraph against motions to concur
in three Senate amendments to a general appropriation bill (not reported
by the Committee on Ways and Means): (1) an amendment denying the use of
funds in that or any other Act by the IRS to impose or assess any tax
due under a designated provision of the Internal Revenue Code, thereby
rendering the tax uncollectable through the use of any funds available
to the agency (Sept. 12, 1984, p. 25108); (2) an amendment directing the
Secretary of the Treasury to admit free of duty certain articles
imported by a designated organization (Sept. 12, 1984, p. 25109); and
(3) an amendment to the Tariff Act of 1930 to expand the authority of
the Customs Service to seize and use the proceeds from the sale of
contraband imports to defray operational expenses, and to offset owed
customs duties under one section of that law (Sept. 12, 1984, p. 25120).
An amendment to a general appropriation bill proposing to divert an
increase in funding for the IRS from spot-checks to targeted audits was
held not to constitute a tax within the meaning of this paragraph
because it did not necessarily affect revenue collection levels or tax
liabilities (June 18, 1991, p. 15189).
In the 99th Congress, the following provisions in a reconciliation
bill reported from the Budget Committee were ruled out as tax measures
not reported from the Committee on Ways and Means: (1) a recommendation
from the Committee on Education and Labor (now Education and the
Workforce) excluding certain interest on obligations from the Student
Loan Marketing Association from application of the Internal Revenue
Code, affecting interest deductions against income taxes (Oct. 24, 1985,
pp. 28776, 28827);
[[Page 833]]
and (2) a recommendation from the Committee on Merchant Marine and
Fisheries expanding tax benefits available to shipowners through a
capital construction fund (Oct. 24, 1985, pp. 28802, 28827). In the
101st Congress, the following provisions in an omnibus budget
reconciliation bill were ruled out: (1) a fee per passenger on cruise
vessels, with revenues credited as proprietary receipts of the Coast
Guard to be used for port safety, security, navigation, and
antiterrorism activities (Oct. 4, 1989, p. 23260); (2) a per acre
``ocean protection fee'' on oil and gas leaseholdings in the Outer
Continental Shelf, with receipts to be used to offset costs of various
ocean protection programs (Oct. 4, 1989, p. 23261); (3) an amendment to
the Internal Revenue Code relating to the tax deductibility of pension
fund contributions (Oct. 4, 1989, p. 23262); (4) a fee incident to
termination of employee benefit plans, with receipts to be applied to
enforcement and administration of plans remaining with the system (Oct.
4, 1989, p. 23262); and (5) a fee incident to the filing of various
pension benefit plan reports required by law, with revenues to be
transferred to the Department of Labor for the enforcement of that law
(Oct. 5, 1989, p. 23328).
To a bill reported from the Committee on Education and Labor (now
Education and the Workforce) authorizing financial assistance to
unemployed individuals for employment opportunities, an amendment
providing instead for tax incentives to stimulate employment was held to
be a tax measure in violation of this paragraph (Sept. 21, 1983, p.
25145). A provision in a bill reported from the Committee on Foreign
Affairs (now International Relations) imposing a uniform fee at ports of
entry to be collected by the Customs Service as a condition of
importation of a commodity was held to constitute a tariff within the
meaning of this paragraph (June 4, 1985, p. 14009), as was an amendment
to a bill reported from that committee amending the tariff schedules to
deny ``most favored nation'' trade treatment to a certain nation (July
11, 1985, p. 18590). A provision in a general appropriation bill
creating a new tariff classification was held to constitute a tariff
under this paragraph (June 15, 1994, p. 13103). A motion to concur in a
Senate amendment constituting a tariff measure (imposing an import ban
on certain dutiable goods) to a bill reported by a committee not having
tariff jurisdiction was ruled out under this paragraph (Sept. 30, 1988,
p. 27316). A proposal to increase a fee incident to the filing of a
securities registration statement, with the proceeds to be deposited in
the general fund of the Treasury as offsetting receipts, was held to
constitute a tax within the meaning of this paragraph because the amount
of revenue derived and the manner of its deposit indicated a purpose to
defray costs of Government, generally (Oct. 23, 1990, p. 32650). To a
bill reported by the Committee on Transportation and Infrastructure, an
amendment increasing a user fee was ruled out as a tax measure where the
fee overcollected to offset a reduction in another fee, thus attenuating
the relationship between the amount of the fee and the cost of the
Government activity for which it was assessed (May 9, 1995, p. 12180).
To a bill reported by the Committee on Science, Space, and Technology
(now
[[Page 834]]
Science), an amendment proposing sundry changes in the Federal income
tax by direct amendments to the Internal Revenue Code of 1986 was ruled
out of order as carrying a tax measure in violation of this paragraph
(Sept. 16, 1992, p. 25205).
Passage of tax rate increases-
(b) <> A
bill or joint resolution, amendment, or conference report carrying a
Federal income tax rate increase may not be considered as passed or
agreed to unless so determined by a vote of not less than three-fifths
of the Members voting, a quorum being present. In this paragraph the
term ``Federal income tax rate increase'' means any amendment to
subsection (a), (b), (c), (d), or (e) of section 1, or to section 11(b)
or 55(b), of the Internal Revenue Code of 1986, that imposes a new
percentage as a rate of tax and thereby increases the amount of tax
imposed by any such section.
This provision was added in the 104th Congress (sec. 106(a), H. Res.
6, Jan. 4, 1995, p. 463), and in the 105th Congress it was amended to
clarify the definition of ``Federal income tax rate increase'' as
limited to a specific amendment to one of the named subsections (H. Res.
5, Jan. 7, 1997, p. ----). Before the House recodified its rules in the
106th Congress, this provision was found in former clause 5(c) of rule
XXI (H. Res. 5, Jan. 6, 1999, p. ----). On one occasion the Chair held
that a provision repealing a ceiling on total tax liability attributable
to a net capital gain was not subject to the original version of this
paragraph (Apr. 5, 1995, p. 10614). This paragraph does not apply to a
concurrent resolution (Speaker Gingrich, May 18, 1995, p. 13499). A
resolution reported from the Rules Committee waiving this paragraph may
be adopted by majority vote (Oct. 26, 1995, p. 29477). The Speaker rules
on the applicability of this paragraph only pending the question of
final passage of a measure alleged to carry a Federal income tax rate
increase, and not in advance upon adoption of a special order waiving
that provision (Oct. 26, 1995, p. 29477).
[[Page 835]]
Consideration of retroactive tax rate increases
(c) <> It shall not be in order to consider a bill, joint
resolution, amendment, or conference report carrying a retroactive
Federal income tax rate increase. In this paragraph--
(1) the term ``Federal income tax rate increase'' means any
amendment to subsection (a), (b), (c), (d), or (e) of section 1, or to
section 11(b) or 55(b), of the Internal Revenue Code of 1986, that
imposes a new percentage as a rate of tax and thereby increases the
amount of tax imposed by any such section; and
(2) a Federal income tax rate increase is retroactive if it
applies to a period beginning before the enactment of the provision.
This paragraph was added in the 104th Congress (sec. 106(b), H. Res.
6, Jan. 4, 1995, p. 463), and it was amended in the 105th Congress to
clarify the definition of ``Federal income tax rate increase'' (H. Res.
5, Jan. 7, 1997, p. ----). Before the House recodified its rules in the
106th Congress, this provision was found in former clause 5(d) of rule
XXI (H. Res. 5, Jan. 6, 1999, p. ----).
Designation of public works
6. <> It
shall not be in order to consider a bill, joint resolution, amendment,
or conference report that provides for the designation or redesignation
of a public work in honor of an individual then serving as a Member,
Delegate, Resident Commissioner, or Senator.
This clause was adopted in the 107th Congress (sec. 2(q), H. Res. 5,
Jan. 3, 2001, p. ----).