Clause 4 of Rule XXI
Appropriations on legislative bills
§1065. Restriction of power to report appropriations.
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.
HOUSE RULES AND MANUAL NOTES
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. 47), 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 clause 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 (except as applied through clause 5 of rule XXII) (VII, 1572). However, it may be directed against an amendment proposed to a Senate amendment to a House bill not reported from the Committee on Appropriations (Oct. 1, 1980, pp. 28638–42) or 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 clause, 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). The clause does not apply to private bills because the committees having jurisdiction over 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 clause does not apply to an appropriation in a bill that has been taken away from a nonappropriating committee by a motion to discharge (VII, 1019a). The point of order under this clause does not apply to a special order reported from the Committee on Rules “self-executing” the adoption in the House of an amendment containing an appropriation, because the 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, p. 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 before its adoption (Apr. 23, 1975, pp. 11512–13). 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, because 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, because 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, because 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) 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, resolution, or amendment that 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 acts (see §1127, supra). See also Deschler, ch. 25, §4 for a discussion of appropriations on legislative bills generally.