The term authorizing legislation may be used to refer to a variety of measures considered by Congress. In terms of the Congressional Budget process, it usually denotes an “authorization of appropriations”. This typically takes the form of an authorizing committee establishing and structuring a program administered by a Federal agency, which is then later funded by the Committees on Appropriations in a later bill (or joint resolution). Of great significance is that the authorization itself is not a “scoreable event”, which denotes an action taken by Congress which has an effect on budget authority, outlays, or revenue.
Substantive legislation, proposed by a committee of jurisdiction other than the House or Senate Appropriations Committees, that establishes and continues the operation of a federal program or agency either indefinitely or for a specific period or that sanctions a particular type of obligation or expenditure within a program. This term is used in two different ways: (1) to describe legislation enacting new program authority, that is, authorizing the program, and (2) to describe legislation authorizing an appropriation.
Authorization of appropriations legislation authorizes the enactment of appropriations of specific amounts for specific programs and activities to be provided in an appropriation act. An authorization of appropriations is, under congressional rules, a prerequisite for such an appropriation. Thus, for example, a point of order may be raised in either house objecting to an appropriation in an appropriation act that is not previously authorized by law. An authorization of appropriations may be part of the organic legislation for the agency or program or it may be separate legislation. Oftentimes, the authorization of appropriation may be inferred from an appropriation provided in an appropriation act. The authorization of appropriation may specify the amount of budget authority to be included in the appropriation act or it may authorize the appropriation of “such sums as may be necessary.” In some instances, authorizing legislation may contain an appropriation or provide other forms of budget authority, such as contract authority, borrowing authority, or entitlement authority. (See also Appropriation Act; Backdoor Authority/Backdoor Spending; Entitlement Authority; Limitation; Point of Order; Reauthorization.)
Distinction Between Authorization and Appropriation
Appropriation acts must be distinguished from two other types of legislation: “enabling” or “organic” legislation and “appropriation authorization” legislation. Enabling or organic legislation is legislation that creates an agency, establishes a program, or prescribes a function, such as the Department of Education Organization Act or the Federal Water Pollution Control Act. While the organic legislation may provide the necessary authority to conduct the program or activity, it usually does not provide budget authority. Nor does organic legislation typically provide any form of an appropriation.
Appropriation authorization legislation, as the name implies, is legislation that authorizes the appropriation of funds to implement the organic legislation. It may be included as part of the organic legislation or it may be separate. As with organic legislation, appropriation authorization legislation typically does not provide budget authority or an appropriation:
“The mere authorization of an appropriation does not authorize expenditures on the faith thereof or the making of contracts obligating the money authorized to be appropriated.”
16 Comp. Gen. 1007, 1008 (1937). See also 27 Comp. Dec. 923 (1921) (“The expression ‘authorized to be appropriated’ . . . clearly indicates that no appropriation is made or intended to be made, but the bill when enacted becomes the authority of law for an expected appropriation in the future”); 67 Comp. Gen. 332 (1988); 37 Comp. Gen. 732 (1958); 35 Comp. Gen. 306 (1955); 26 Comp. Gen. 452 (1947); 15 Comp. Gen. 802 (1936); 4 Comp. Gen. 219 (1924); A 27765, July 8, 1929.
Agencies may incur obligations only after Congress grants budget authority. As discussed in section B.4 of this chapter, Congress may confer budget authority in any law. However, provisions conferring budget authority and authority to make payments to liquidate obligations nearly always appear in appropriations acts, not in organic legislation or in appropriation authorization legislation.
Like organic legislation, authorization legislation is considered and reported by the committees with legislative jurisdiction over the particular subject matter, whereas appropriation bills are exclusively within the jurisdiction of the appropriations committees.
There is no general requirement, either constitutional or statutory, that an appropriation act be preceded by a specific authorization act. E.g.,
71 Comp. Gen. 378, 380 (1992). The existence of a statute (organic legislation) imposing substantive functions upon an agency is itself sufficient authorization for the necessary appropriations. B-173832,
July 16, 1976; B-173832, Aug. 1, 1975; B-111810, Mar. 8, 1974. Moreover, expiration of an authorization of appropriations does not prohibit an agency from using available appropriations to carry out a program required or permitted by existing enabling legislation. B-323433, Aug. 14, 2012 (Social Security Administration has adequate authority under organic legislation to continue mandatory and discretionary grant programs upon the expiration of an authorization of appropriations).
However, statutory requirements for authorizations do exist in a number of specific situations: for example, one provision states that “[a]ppropriations to carry out the provisions of this chapter shall be subject to annual authorization.” Department of Energy Organization Act, § 660, 42 U.S.C. § 7270. Another provides that no funds may be appropriated for military construction, military procurement, and certain related research and development “unless funds therefor have been specifically authorized by law.” 10 U.S.C. § 114(a). In addition, rules of the House of Representatives generally prohibit the reporting of an appropriation in a general appropriation bill for expenditures not previously authorized by law. See Rule XXI(2)(a)(1), Rules of the House of Representatives. The effect of this Rule is to subject the “offending” appropriation to a point of order. A more limited provision exists in Rule XVI, Standing Rules of the Senate.
An authorization act is basically a directive to Congress itself, which Congress is free to follow or alter (up or down) in the subsequent appropriation act. B-323433, Aug. 14, 2012. A statutory requirement for prior authorization is also essentially a congressional mandate to itself. Thus, for example, if Congress appropriates money to the Defense Department in violation of 10 U.S.C. § 114, there are no practical consequences. The appropriation is just as valid, and just as available for obligation, as if section 114 had been satisfied or did not exist.
Authorizations take many different forms, depending in part on whether they are contained in the organic legislation or are separate legislation. Authorizations contained in organic legislation may be “definite” (setting dollar limits either in the aggregate or for specific fiscal years) or “indefinite” (authorizing “such sums as may be necessary to carry out the provisions of this act”). An indefinite authorization serves little purpose other than to comply with House Rule XXI. Appropriation authorizations enacted as separate legislation resemble appropriation acts in structure, for example, the annual Department of Defense Authorization Acts.
In sum, the typical sequence is: (1) organic legislation; (2) authorization of appropriations, if not contained in the organic legislation; and (3) the appropriation act. While this may be the “normal” sequence, there are deviations and variations, and it is not always possible to neatly label a given piece of legislation. Consider, for example, the following:
“The Secretary of the Treasury is authorized and directed to pay to the Secretary of the Interior . . . for the benefit of the Coushatta Tribe of Louisiana . . . out of any money in the Treasury not otherwise appropriated, the sum of $1,300,000.”
Pub. L. No. 100-411, § 1(a)(1), 102 Stat. 1097 (Aug. 22, 1988). This is the first section of a law enacted to settle land claims by the Coushatta Tribe against the United States and to prescribe the use and distribution of the settlement funds. Applying the test described above in section B.4, it is certainly an appropriation—it contains a specific direction to pay and designates the funds to be used—but, in a technical sense, it is not an appropriation act. Also, it contains its own authorization. Thus, we have an authorization and an appropriation combined in a statute that is neither an authorization act (in the sense described above) nor an appropriation act.
[Source: GAO, Principles of Federal Appropriations Law, 4th ed., 2016 rev., ch. 2, GAO-16-464SP (Washington, D.C.: Mar. 2016), pages 2-54 to 2-56 .]