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Unauthorized Appropriations and Expiring Authorizations (Appropriations Version) January 2002

Each year, the Congressional Budget Office (CBO) is required to report to the Congress on unauthorized appropriations and expiring authorizations. That requirement comes from the Balanced Budget and Emergency Deficit Control Act of 1985, which amended the Congressional Budget and Impoundment Control Act of 1974. Section 221(b) of the Deficit Control Act added the following requirement to section 202(e)(3) of the Congressional Budget Act, as amended:

On or before January 15 of each year, the Director [of CBO], after consultation with the appropriate committees of the House and the Senate, shall submit to the Congress a report listing (A) all programs and activities funded during the fiscal year ending September 30 of that calendar year for which authorizations for appropriations have not been enacted for that fiscal year, and (B) all programs and activities for which no authorizations for appropriations have been enacted for the fiscal year beginning October 1 of that calendar year.

According to the conference report on the Deficit Control Act, the purpose of that amendment was "to help Congress use the early months of the year to adopt authorizing legislation that must be in place before the thirteen regular appropriation bills can be considered."
 

THE ROLE OF AUTHORIZATIONS

Authorization laws are an outgrowth of the long-standing legislative practice of distinguishing between the laws that set forth federal policies and the laws that fund them. In general, authorization laws establish, continue, or modify federal programs. Funding for those programs is then provided separately in annual appropriation acts. Some authorization laws merge policy and funding decisions--in effect, combining an authorization and appropriation in the same act. They are referred to as direct, or mandatory, spending laws.

There are two kinds of authorization laws. The first type is the "organic," or "enabling," statute, which makes broad grants of authority, establishes federal offices or duties, creates federal programs, or permits various activities to be carried out. The second type is a provision that specifically authorizes the appropriation of funds to carry out the various authorities or duties established under an organic statute or to achieve other purposes. That kind of authorization may appear in the enabling statute or be enacted in a separate law.

This report focuses on the second type of authorization law. In general, those laws are intended to offer guidance to the appropriations committees on the level of program funding to be provided in annual appropriation acts. That guidance is typically expressed as an authorization of appropriations. Such authorizations are provided either for specific dollar amounts (definite authorizations) or for "such sums as are necessary" (indefinite authorizations).

Authorizations of appropriations may be permanent, or they may cover only particular fiscal years. Authorizations that have a stated duration may be annual (pertaining to one fiscal year) or multiyear (pertaining to two, five, or any specific number of fiscal years). When such an authorization expires, the Congress may choose to extend the life of a program by reauthorizing the activity. The Congress may also extend a program simply by providing new appropriations for it. However, appropriations made available for a program after its authorization of appropriations has expired are considered "unauthorized" appropriations.

House and Senate rules--dating from the 19th century--generally preclude the Congress from considering appropriations that are not authorized by law. Rule 21 of the House of Representatives prohibits appropriations in a general appropriation bill or in an amendment to a bill that have not been previously authorized. For general appropriation bills, Rule 16 of the Senate restricts amendments that increase an appropriation or add a new item of appropriation unless it has been authorized by existing law. Both rules subject the legislation containing the unauthorized appropriation to a point of order upon its consideration by the House or Senate.⁽¹⁾ However, House and Senate rules are not self-enforcing. A point of order must be raised by an individual Member for the rules to be enforced. In the House, a point of order under Rule 21 may be avoided by a waiver granted under the special rule governing consideration of the general appropriation bill or amendments.⁽²⁾ In the Senate, a point of order under Rule 16 cannot be waived in the same manner, but the Senate rule includes several exceptions. If no point of order is raised, an unauthorized appropriation may proceed through the legislative process.

More than half of all federal spending now goes to programs for which the authorizing legislation provides budget authority. Such direct spending includes funding for most major entitlement programs. (Some entitlements are funded in annual appropriation acts, but the amounts provided are controlled by the authorization law that established the entitlement.) The authorization laws that provide direct spending are typically permanent, but some major direct-spending programs, such as the Food Stamp program, require periodic renewal.
 

LISTINGS OF UNAUTHORIZED APPROPRIATIONS AND EXPIRING AUTHORIZATIONS

This report covers all appropriated programs that at one time had an explicit authorization of appropriations that has expired or will expire this year. Appendix A lists unauthorized appropriations--programs that have received an appropriation for fiscal year 2002 but whose applicable authorization has expired. Appendix B lists programs for which authorizations expire at or before the end of fiscal year 2002. The appendixes show the number and name of the public law containing the last authorization, the last year that the authorization was in effect, and the amount authorized in that year. If the authorization was provided for "such sums as are necessary," the report shows the amount authorized as "indefinite." The listings of public laws in the appendixes are issued in three separate versions--by House authorizing committee, Senate authorizing committee, and appropriations subcommittee.

The information in this report is drawn from CBO's Legislative Classification System, a database reflecting all public laws that contain nonpermanent authorizations of appropriations--up to and including legislation that cleared the House and Senate during the first session of the 107th Congress and was signed into law by January 11, 2002 (that is, through Public Law 107-118).

In general, House and Senate rules require the appropriations committees, in their reports on general appropriation bills, to identify any programs funded in the bills that lack an authorization--including programs for which explicit authorizations of appropriations have never been enacted. This CBO report, in contrast, covers only programs that at one time had an explicit authorization that either has expired or will expire. Also, as mentioned earlier, many laws establish programs with authorizations of appropriations that do not expire. Both the reports of the appropriations committees and this CBO report exclude programs with that type of authorization because its effect is permanent.
 

PROGRAMS FUNDED IN FISCAL YEAR 2002 WITH EXPIRED AUTHORIZATIONS OF APPROPRIATIONS

Appendix A lists programs and activities funded by an appropriation for fiscal year 2002 whose authorization of appropriations has expired. If the applicable 2002 appropriation act (or its legislative history) provides an explicit level of funding for the program, that amount is shown under "Unauthorized FY 2002 Appropriations." If no specific amount is provided (as in the case of a small program that is funded at an unidentified level in a large appropriation account), CBO contacts the agency's budget office to determine whether the program is still being funded and, if so, the amount allocated for it. If that amount cannot be determined, the appendix notes that a specific dollar amount of unauthorized 2002 appropriations is not available.

The Congress has appropriated about $91 billion for fiscal year 2002 for programs and activities whose authorizations of appropriations have expired (see Tables 1, 2, and 3). That amount is about $20 billion lower than the comparable figure reported by CBO for 2001.⁽³⁾ The difference arises mainly because certain expired authorizations of appropriations covering the Department of Justice were permanently extended under the Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act for 2002.⁽⁴⁾
 

The largest single unauthorized appropriation for 2002 is for veterans' medical care ($21.3 billion); the appropriation was last authorized for 1998.⁽⁵⁾ Other relatively sizable programs with expired authorizations of appropriations include many housing and community development programs of the Department of Housing and Urban Development, which were last authorized for 1994 but have funding for fiscal year 2002 of $7.8 billion; certain programs of the National Institutes of Health (last authorized for 1996; 2002 funding of $8.2 billion); the Coast Guard (1999 authorization; 2002 funding of $5.2 billion); and the National Science Foundation (2000 authorization; 2002 funding of $4.8 billion).

Certain appropriations for the Department of State (about $6.5 billion) and international economic and development assistance programs (about $4 billion) are included despite general provisions in the relevant appropriation acts that waive statutory requirements for prior authorization. Authorizations of appropriations covering the affected State Department programs, which were enacted most recently in the Admiral James W. Nance and Meg Donovan Foreign Relations Authorization Act of 2000 (Appendix G of P.L. 106-113), expired at the end of fiscal year 2001. Funding for the relevant international assistance programs was last authorized for 1987 by the International Security and Development Cooperation Act of 1985.
 

AUTHORIZATIONS OF APPROPRIATIONS THAT EXPIRE ON OR BEFORE SEPTEMBER 30, 2002

Appendix B lists programs and activities with authorizations of appropriations that expire by the end of fiscal year 2002. The appendix indicates (by public law) the amounts authorized to be appropriated in 2002 for expiring programs and activities, rather than the amounts actually appropriated in that year.

About $370 billion worth of definite authorizations in laws under the jurisdiction of 15 House and 15 Senate authorizing committees will expire by the end of this fiscal year (see Tables 4, 5, and 6). However, most of that amount (about $340 billion) is authorized in a single law, the National Defense Authorization Act for Fiscal Year 2002 (P.L. 107-107), which also includes the Maritime Administration and atomic energy defense activities of the Department of Energy. Typically, authorizations for defense funding are renewed annually. Another annual reauthorization is the Intelligence Authorization Act for Fiscal Year 2002 (P.L. 107-108). Most of the authorizations for intelligence activities are indefinite and classified.
 

Other major definite authorizations that expire at the end of 2002 include the National Aeronautics and Space Administration Authorization Act of 2000 ($14.6 billion), the Security Assistance Act of 2000 ($3.9 billion), and various programs under the Agricultural Research, Extension, and Education Reform Act of 1998 and the Federal Agriculture Improvement and Reform Act of 1996 (nearly $4 billion).

Thus, as in other recent years, the total amount of expiring definite authorizations of appropriations is concentrated in a handful of laws. Of the 58 laws with authorizations that expire this year, five account for nearly 98 percent of the year's expiring definite authorizations. Conversely, 30 laws (just over half of the total number due to expire) include definite authorizations that sum to $50 million or less for each law and that together make up less than 0.5 percent of the total amount of expiring definite authorizations.

Some laws with expiring indefinite authorizations (for "such sums as are necessary") also involve relatively large amounts of funding. For example, the indefinite authorization for the Food Stamp program--a mandatory spending program with estimated outlays of $23 billion in 2002--expires this year. Classified spending for intelligence activities, which as noted above is reauthorized annually, is probably substantial as well. Other major indefinite authorizations expiring this year include all agricultural research, extension, and education activities of the Department of Agriculture authorized under the Federal Agriculture Improvement and Reform Act (appropriations for fiscal year 2002 of about $2 billion); certain programs authorized under the Health Professions Education Partnership Act of 1998 (appropriations of about $0.7 billion); and refugee and entrant assistance programs of the Department of Health and Human Services authorized under the Immigration and Nationality Act (appropriations of about $0.5 billion).

1. A point of order is an objection raised by a Member of Congress against a piece of legislation or a procedure on the grounds that it violates the rules of the House or Senate. The Presiding Officer decides whether to sustain or overrule the point of order on the basis of the specific rule and precedents under that rule. The decision of the Presiding Officer is subject to appeal to the full House or Senate.

2. A special rule is a simple resolution, reported by the House Rules Committee, that sets the terms and conditions for the House's consideration of legislation.

3. See Congressional Budget Office, Unauthorized Appropriations and Expiring Authorizations (January 12, 2001).

4. See section 102 of P.L. 107-77. In previous years, authorities under the 1980 Department of Justice Appropriations Authorization Act (P.L. 96-132) were extended one year at a time in annual appropriation acts.

5. Staff of the veterans' affairs committees and the Department of Veterans Affairs characterize the relevant authorization--in section 105 of P.L. 104-262--as intended to be a cap on spending for veterans' medical care for 1997 and 1998 only. However, it is treated in this report as any other expired authorization of appropriations.

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