Emergencies Under Section 252 (BBEDCA)
The term emergency, when used in budget law, means spending that is designated as such and is given different treatment than other forms of spending authority. At different times, it has caused a change in applicable spending limits, and at others it has caused those estimating the cost of measures to ignore the spending effects. The term is specifically defined in law.
“Emergency spending” in has had a contentious past. Though it has varied over the years, currently any amount of spending designated as an emergency does not “count” for purposes of Congressional budget law. Thus, even though dollars are leaving the Treasury and spent on perhaps vital purposes, and though those dollars are accounted for on the books, especially in terms of the borrowing required, for the purposes of enforcing budgetary levels, it is invisible.
Another element of emergency spending that has been subject to considerable debate is the merit of some spending that has been proposed or actually so designated is the review, or process by which such spending is determined to fit the concept of “emergency”. The process by which spending simply given an emergency tag is therefore in reality an emergency, no matter how tenuous the claim, was thought by some Members of Congress to have inadequate controls. Even the very general and basic definition currently in law set forth in section 250(c)(20) and (21) was resisted, primarily by the Congressional Appropriations Committees, and was not added to BBEDCA until the passage of the Budget Control Act of 2011.
Numerous attempts to budget for emergencies have been made, mostly without success. Though certain funds in the Federal Government, such as within the Federal Emergency Management Agency’s budget, do exist, attempt to set up an annual emergency reserve fund have not been successful.
Negotiations between the Obama Administration and Congress, largely through Speaker John Boehner, resulted in a parallel fund for “disasters”, whereby a set amount would be set aside for that purpose. The notion that a “disaster” might not be considered an “emergency” did not seem to be part of the debate. In reality, the disaster spending designation was largely to move spending already spent on certain kinds of emergency spending, but budgeted for within the allocation and discretionary spending categories, outside those levels to free up room under the limits and allocations for spending on other things. The notion of setting a specific amount for the purpose though is similar to proposals for an emergency reserve fund: It creates an amount calculated through a rolling average of amounts spent in the previous ten years, excluding the high and low years.
Emergency designations have been included in a number of different laws, generally for different purposes and change the treatment of the spending so designated:
Section 251(b) of the Balanced Budget and Emergency Deficit Control Act of 1985
Section 252 of the Balanced Budget and Emergency Deficit Control Act of 1985
Section 4 of the Statutory Pay-As-You-Go-Act of 2010
Congressional Budget Resolutions
Legislative Text Included In Appropriations Acts
Sec. 3. In general.— For purposes of this Act—
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(11) The terms “emergency” and “unanticipated” have the meanings given to such terms in section 250(c) of the Balanced Budget and Emergency Deficit Control Act of 1985.
Balanced Budget and Emergency Deficit Control Act of 1985
Section 250(c) set forth the definitions for the Balanced Budget and Emergency Deficit Control Act of 1985, but they are generally employed for budget law purposes. The definition in that subsection read as follows:
(c) Definitions.—As used in this part:
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(20) The term “emergency” means
a situation that—
(21) The term “unanticipated” means that the underlying situation is—
A term that usually modifies “appropriation,” “legislation,” or “supplemental.” Under procedures typically prescribed in concurrent resolutions on the budget, the House or the Senate, or their respective committees of jurisdiction, may designate proposed appropriations or other legislation as “emergency legislation” and thereby exempt any new budget authority, outlays, or receipts resulting from such legislation from specified enforcement provisions in the Congressional Budget Act, the concurrent resolution itself, or both. (See also Appropriations under Forms of Budget Authority under Budget Authority.)
Acts appropriating funds for national or international emergencies such as natural disasters or urgent national security events are typically designated “emergency supplemental.” (See also Supplemental Appropriation.)
Definition of Emergency Spending
Emergency Spending: As provided in the Budget Enforcement Act, a provision of legislation designated as an emergency by both the President and the Congress. As a result, this additional spending is not subject to the discretionary caps or the pay go requirements and thus will not cause a sequester. In addition, emergency legislation is effectively exempt from Budget Act points of order.
There is no specific criteria in the law for emergency spending. However, the following criteria were contained in a June 1991 report prepared by the Office of Management and Budget—as required by Pub. L. No. 102-55 for the determination of whether to designate spending as an emergency spending:
Necessary expenditure.—an essential or vital expenditure, not one that is merely useful or beneficial;
Sudden.—quickly coming into being, not building up over time;
Urgent.—pressing and compelling need requiring immediate action;
Unforseen.—not predictable or seen beforehand as a coming need (an emergency that is part of an aggregate level of anticipated emergencies, particularly when normally estimated in advance, would not be “unforeseen”); and
Not permanent.—the need is temporary in nature.
[The Congressional Budget Process: An Explanation, Appendix J (Glossary), Committee on the Budget of the U.S. Senate, S. Prt. 105-67 (Revised December 1998).]