Regular Appropriations Acts: Selected Statutory Interpretation Issues

Regular Appropriations Acts:

Selected Statutory Interpretation Issues

September 3, 2021

Congressional Research Service

https://crsreports.congress.gov

R46899

SUMMARY

Regular Appropriations Acts: Selected

Statutory Interpretation Issues

The Constitution’s Appropriations Clause provides that “No Money shall be drawn from the

Treasury, but in Consequence of Appropriations made by Law.” Congress, and not another

branch of government, therefore decides whether and on what terms to fund government

programs. When it does, Congress provides appropriations or other budget authority. This

statutory authority is essential to carry out nearly all government programs.

R46899

September 3, 2021

Sean M. Stiff

Legislative Attorney

As a legal matter, Congress can include an appropriation or other budget authority in any bill or joint resolution; as a

procedural matter, Congress has chosen to supply funding for many of the continued operations of federal departments,

agencies, and programs through a type of bill referred to as a regular appropriations bill. Under current committee structures,

Congress may separately enact up to 12 regular appropriations bills for a given fiscal year, though more and more, Congress

enacts one or more regular appropriations bills together in a statute sometimes referred to as a consolidated or omnibus

appropriations act.

Regular appropriations acts stand apart from other statutes in content, structure, and context. Since 1789, regular

appropriations acts have been drafted “for the service” (i.e., for the use of) a single fiscal year; much of the legal authority

such acts provide comes with its own expiration date. When Congress enacts regular appropriations acts, its primary focus is

the granting of appropriations and other budget authority, and procedural rules discourage the inclusion of “legislation” in

such acts. Modern-day regular appropriations acts—those enacted for Fiscal Year (FY) 2000 and thereafter—employ a

legislative format that differs in key respects from that of other statutes enacted during the same time period. Congress’s

consideration of regular appropriations acts also generates detailed committee and other legislative reports, such as

explanatory statements, which Congress might use to further control or influence, in varying ways, use of appropriated funds.

Because modern-day regular appropriations acts employ structure and include matter that does not appear in other

contemporary statutes, these appropriating acts raise questions for agencies that other statutes typically do not. For example,

the fact that most of the appropriations contain an expiration date requires agencies to ensure that particular expenses are

properly incurred using time-limited funds. Agencies may also have to consider the effect that the various reports that

accompany regular appropriations acts have on their authority to use appropriated funds, potentially implicating the

constitutional doctrine of bicameralism and presentment and the statutory doctrine of incorporation by reference.

Not only do modern-day regular appropriations acts pose unique questions, courts often read such acts through lenses that are

not applied to other statutes. That is because, over time, courts have arrived at a particular understanding of Congress’s

appropriating function, influenced by such factors as the perceived nature of appropriations acts and the effect of chamber

rules that govern consideration of general appropriations bills. Given this understanding, courts have crafted presumptions

concerning regular appropriations act provisions to yield conclusions about statutory meaning that appear to most faithfully

reflect legislative intent. Thus, when Congress writes the unnumbered paragraphs of an appropriations act using a principal

clause/proviso format, as it has for centuries, courts will usually read the proviso as being confined to the subject matter of its

principal clause; the proviso will not be read to introduce new matter that is not connected to the principal clause. Courts will

also presume that matter in a regular appropriations act does not modify preexisting substantive law that fixes rights, duties,

and obligations. Even when an act overcomes this presumption, courts will further presume that the act in question only

modifies substantive law for the fiscal year. By understanding these and other presumptions, Congress can tailor the language

of appropriations acts to ensure that courts interpret that language as intended.

Congressional Research Service

Regular Appropriations Acts: Selected Statutory Interpretation Issues

Contents

Anatomy of a Statute Making Regular Appropriations ................................................................... 3

Prefatory Matter ........................................................................................................................ 4

Preceding Matter ....................................................................................................................... 4

Unnumbered Paragraphs ........................................................................................................... 5

General Provisions .................................................................................................................... 8

Legislative Reports.................................................................................................................... 9

Selected Statutory Interpretation Questions ...................................................................................11

The Relationship Between Principal Clause and Proviso ........................................................11

Duration of Budget Authority ................................................................................................. 15

Determining Duration ....................................................................................................... 16

Duration’s Effect on Agency Obligations ......................................................................... 18

Determining Effects on Substantive Law ................................................................................ 23

Effects of Appropriations Act on Substantive Law ........................................................... 24

Determining How Long a Provision Affects Substantive Law ......................................... 28

Effect of Report Provisions ..................................................................................................... 31

The General Rule: Report Language Alone Is Not Legally Binding ................................ 31

The Exception: Incorporation by Reference ..................................................................... 33

Preceding Matter Concerning the Explanatory Statement ...................................................... 37

Appendixes

Appendix. Glossary ....................................................................................................................... 43

Contacts

Author Information........................................................................................................................ 44

Congressional Research Service

Regular Appropriations Acts: Selected Statutory Interpretation Issues

regular appropriations act is a statute that provides funding for the continued operation

of federal departments, agencies, and government activities for a particular fiscal year.1

The legal meaning of a regular appropriations act is generally determined by applying the

same rules that govern the interpretation of other statutes.2 Just as with statutes that authorize

government programs or otherwise regulate public or private conduct,3 courts4 and agencies5

usually interpret the undefined words and phrases of an appropriations act by looking to their

ordinary meaning. Ordinary meaning is usually found in dictionary definitions.6 Like other

statutes,7 words and phrases in an appropriations act are interpreted in context of the act in which

they appear.8 Other canons of construction apply just as much to appropriations acts as to other

statutes.9 When construing statutory text, including provisions in appropriations acts,10 a court

might also look to a statute’s legislative history. This record of Congress’s consideration of and

A

1 GOV’T ACCOUNTABILITY OFF., A GLOSSARY OF TERMS USED IN THE FEDERAL BUDGET PROCESS, GAO-05-734SP, at 13

(2005) [hereinafter GAO GLOSSARY].

2 For an overview of rules and presumptions generally used in interpreting federal statutes, see CRS Report R46484,

Understanding Federal Legislation: A Section-by-Section Guide to Key Legal Considerations, by Victoria L. Killion

[hereinafter Understanding Federal Legislation].

3 See, e.g., Gross v. FBL Fin. Serv., Inc., 557 U.S. 167, 175–76 (2009) (interpreting Age Discrimination in

Employment Act of 1967) (“Statutory construction must begin with the language employed by Congress and the

assumption that the ordinary meaning of that language accurately expresses the legislative purpose.” (internal quotation

marks omitted)).

4 See, e.g., California v. Trump, 963 F.3d 926, 944 (9th Cir. 2020) (“Section 8005 does not define ‘unforeseen.’

Therefore, we start by considering the ordinary meaning of the word.”) (interpreting appropriations act provision

allowing the Department of Defense to transfer funds between appropriations based on “unforeseen” military

requirements), vacated sub nom. Biden v. Sierra Club, No. 20-138, 2021 WL 2742775 (U.S. July 2, 2021).

5 See, e.g., Expenditure of Appropriated Funds for Informational Video News Releases, 28 Op. O.L.C. 109, 119 (2004)

(looking first to ordinary meaning to interpret an appropriations act general provision prohibiting the use of any part of

any appropriation for “publicity or propaganda purposes”).

6 Compare Taniguchi v. Kan Pac. Saipan, Ltd., 566 U.S. 560, 569 (2012) (“Based on our survey of the relevant

dictionaries, we conclude that the ordinary or common meaning of ‘interpreter’ does not include those who translate

writings. Instead, we find that an interpreter is normally understood as one who translates orally from one language to

another.”) (statute authorizing a federal judge or clerk of court to tax the “compensation of interpreters” as litigation

costs), with United States v. McIntosh, 833 F.3d 1163, 1175–76 (9th Cir. 2016) (consulting dictionary definitions of the

word “implement” to construe appropriations act provision barring the Department of Justice from using appropriated

funds to prevent specified States from “implementing” state medical marijuana laws); see also New Prime Inc. v.

Oliveira, 139 S. Ct. 532, 539 (2019) (looking to dictionary definitions roughly contemporaneous with a statute’s

enactment in 1925 rather than a dictionary edition published in 2014 to interpret the statutory phrase “contracts of

employment”).

7 See, e.g., King v. Burwell, 576 U.S. 473, 486 (2015) (tax credit) (“[W]hen deciding whether the language” of a statute

“is plain, we must read the words in their context and with a view to their place in the overall statutory scheme.”

(internal quotation marks omitted)); Koons Buick Pontiac GMC, Inc. v. Nigh, 543 U.S. 50, 60 (2004) (Truth in

Lending Act statutory damages provision) (“A provision that may seem ambiguous in isolation is often clarified by the

remainder of the statutory scheme.” (internal quotation marks omitted)).

8 See, e.g., B-230110, 1988 WL 227660, at *1–2 (Comp. Gen. Apr. 11, 1988) (interpreting the phrase “this Act,” as

used in a statute that consolidated for enactment what had been drafted as stand-alone regular appropriations bills, as

referring only to “the individual appropriation act in which [the phrase] appears before incorporation into the

Continuing Resolution”).

9 Compare McDonald v. United States, 279 U.S. 12, 18, 23 (1929) (act amending statutes governing petitions for

citizenship) (refusing to read proviso as only a limitation on its principal clause), with Republic of Iraq v. Beaty, 556

U.S. 848, 857–58 (2009) (reading a similar conclusion with respect to proviso in a supplemental appropriations act).

10 See, e.g., Mullis v. United States, 230 F.3d 215, 220–21 & 220 n.3 (6th Cir. 2000) (consulting committee reports and

floor statements when examining effect of appropriations act general provision prohibiting the Bureau of Alcohol,

Tobacco, and Firearms from processing an application of a convicted felon seeking relief from provisions of federal

law barring the possession of a firearm or ammunition).

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commentary on the bill that became law might be used to confirm the meaning that is otherwise

evident in the statutory text itself,11 or it might be used to clarify the meaning of an ambiguous

statute.12 Regardless of the type of statute at issue, whether appropriating or not, the ultimate goal

of statutory interpretation is to determine congressional intent.13

However, regular appropriations acts also differ from other statutes in important respects, in form

but more importantly in substance. Regular appropriations acts look different from most other

federal statutes, using what commentators have called a “maverick style” of organization.14 Their

chief function is the granting of appropriations, a constitutionally unique legal authority that is

necessary for an agency to draw funds from the Treasury to pay the government’s debts.15

Reinforcing this focus on funding government programs, chamber rules discourage Members of

Congress from including “legislation” in a regular appropriations act, creating, at least as a

procedural matter, a “separation between policy and money decisions.”16 As a rule, the primary

legal authority provided in a regular appropriations act is qualified in its duration—most of its

appropriations have an expiration date. Regular appropriations acts are also accompanied by

detailed committee reports. Sometimes on their own and sometimes in conjunction with

references in the statute to the committee or other legislative reports, these reports state that the

funds within an appropriation should be allocated in a certain way, issue directives to agencies, or

otherwise exercise oversight over the agencies and programs that the act funds.

These differences in the form and function of regular appropriations acts and the context in which

Congress considers appropriations acts affect the types of interpretive questions that such acts

raise. Moreover, because courts perceive differences between regular appropriations and other

statutes, courts may conclude that on certain questions, congressional intent is most accurately

gauged using rules of interpretation tailored to appropriations acts. After discussing the typical

format of a regular appropriations act, this report examines frequently recurring questions of

statutory interpretation raised by such acts. This report compiles the terms it defines in a glossary

Appendix.

11 See, e.g., Small v. United States, 544 U.S. 385, 393 (2006) (construing statute prohibiting a felon “convicted in any

court” from possessing a firearm as applying only to domestic convictions and stating that statute’s “lengthy legislative

history confirms” that foreign convictions would not trigger the firearms disability).

12 See, e.g., Milner v. Dep’t of the Navy, 562 U.S. 562, 572 (2011) (Kagan, J.) (“Those of us who make use of

legislative history believe that clear evidence of congressional intent may illuminate ambiguous text.”); but see

Cherokee Nation of Okla. v. Leavitt, 543 U.S. 631, 647 (2005) (Scalia, J., concurring in part) (disagreeing with the

Court’s use of a committee report to interpret the Indian Self-Determination and Education Assistance Act and arguing

that the report “at most indicates the intent of one Committee of one Chamber of Congress”).

13 See United States v. Mitchell, 109 U.S. 146, 150 (1883) (stating that the “whole question” of whether Congress had

used an appropriations act to amend substantive law “depends on the intention of congress as expressed in the

statutes”).

14 LAWRENCE FILSON & SANDRA STROKOFF, THE LEGISLATIVE DRAFTER’S DESK REFERENCE, §§ 33.2 & 33.7 (2d ed.

2008) (distinguishing the “maverick style” of “general appropriations acts” from the “four principal Federal Drafting

styles”).

15 See U.S. CONST. art. I, § 9, cl. 7 (“No Money shall be drawn from the Treasury, but in Consequence of

Appropriations made by Law”).

16 See CRS Report R41634, Limitations in Appropriations Measures: An Overview of Procedural Issues, by James V.

Saturno, at 1, 3 [hereinafter Limitations in Appropriations Measures].

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Anatomy of a Statute Making Regular

Appropriations

This report addresses a type of statute referred to as a regular appropriations act, which is only

one of a number of appropriations acts that Congress might enact in a given year. A regular

appropriations act provides funding for the continued operation of federal departments, agencies,

and government activities for a particular fiscal year.17 As used in this report, the term excludes

appropriations acts that make only continuing, deficiency, or supplemental appropriations.18 It

also does not describe those laws, other than appropriations acts, that provide budget authority.19

Budget authority is statutory authority to incur financial obligations on behalf of the United States

that will result in an outlay of federal funds.20 Usually, this authority takes the form of an

appropriation, which is statutory authority to both obligate the government and make payments

out of the Treasury.21 After enactment of such funding authority, the Department of the Treasury

(Department) issues appropriation warrants, which are “evidence of Congressional action to fund

programs” and establish the money that an “entity is authorized to withdraw from the General

Fund of the U.S. Government.”22 The Department establishes appropriations accounts

corresponding to each appropriation.23 Agencies use accounts to reflect their use of

appropriations.

Under the current structure of the House and Senate Appropriations Committees, there are 12

regular appropriations acts, each drafted annually by a subcommittee with jurisdiction over

specified agencies and programs.24 While the Appropriations Committees might typically first

draft and mark up the different regular appropriations bills as stand-alone measures, Congress

increasingly enacts the regular appropriations bill into law by combining one or more into a

measure that is designated as, variously, a “consolidated” or “omnibus” appropriations act.25

Modern-day statutes making regular appropriations26 typically include up to four basic

components: prefatory matter, so-called “preceding matter,” unnumbered paragraphs, and general

17 See GAO GLOSSARY, supra note 1, at 13.

18 See id. at 13–14.

19 Cf. GOV’T ACCOUNTABILITY OFF., FEDERAL BUDGET: GOVERNMENT-WIDE INVENTORY OF ACCOUNTS WITH SPENDING

AUTHORITY AND PERMANENT APPROPRIATIONS, FISCAL YEARS 1995 TO 2015, GAO-19-36, at 8 fig. 2 (2018) (comparing

discretionary and mandatory spending).

20 Maine Cmty. Health Options v. United States, 140 S. Ct. 1308, 1322 (2020) (“Budget authority is an agency’s power

provided by Federal law to incur financial obligations that will result in immediate or future outlays of government

funds.” (internal citation and quotation marks omitted)).

21 Andrus v. Sierra Club, 442 U.S. 347, 360 n.18 (1979).

22 See DEP’T OF THE TREASURY, 1 TREASURY FIN. MANUAL § 2025.10; see also 31 U.S.C. § 3323(a) (directing that “the

Secretary of the Treasury may pay out money only against a warrant”).

23 See, e.g., DEP’T OF THE TREASURY, FEDERAL ACCOUNT SYMBOLS AND TITLES (FAST) BOOK: AGENCY IDENTIFIER

CODES, ii (July 2021), https://fiscal.treasury.gov/files/fast-book/fastbook-july-2021.pdf (“Receipt, appropriation, and

other fund account symbols and titles are assigned by the Department of the Treasury . . . consistent with the principles

and standards prescribed by the Comptroller General of the United States.”); see also GEN. ACCT. OFF., POLICY AND

PROCEDURES MANUAL FOR GUIDANCE OF FEDERAL AGENCIES, tit. 7, § 2.1 (May 1993).

24 CRS Report R42388, The Congressional Appropriations Process: An Introduction, coordinated by James V. Saturno,

at 12.

25 See CRS Report RL32473, Omnibus Appropriations Acts: Overview of Recent Practices, by James V. Saturno, at 3

tbl. 1.

26 Subsequent discussion in this report is based on Congressional Research Service review of statutes making regular

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provisions. Moreover, while the text of committee and other legislative reports that are drafted to

accompany regular appropriations acts do not appear within the four corners of the act, such

reports are important products of the legislative process.

Prefatory Matter

A statute making regular appropriations begins with statutorily prescribed prefatory matter. First,

the act’s title will indicate the fiscal year and, in general terms, the objects for which the act

makes appropriations.27 Second, the measure will contain an enacting clause if it is styled as an

act28 or a resolving clause if it is styled as a joint resolution.29

Preceding Matter

The next component of a statute making regular appropriations is a collection of what in recent

fiscal years30 has been styled as numbered sections that precede the portions of the act that make

particular appropriations (“preceding matter”).31 When they appear, preceding matter provisions

tend to appear in the same form from year to year,32 but whether a statute making regular

appropriations includes a particular preceding matter provision depends on the content of the act,

appropriations for Fiscal Year (FY) 2000 and thereafter. Thus, this report’s use of the modifier “modern-day” should be

understood to refer to the time period FY2000 through FY2021.

27 See 1 U.S.C. § 105 (“The style and title of all Acts making appropriations for the support of Government shall be as

follows: ‘An Act making appropriations (here insert the object) for the year ending September 30 (here insert the

calendar year).’”). Beginning with FY1977, appropriations acts have made appropriations for fiscal years ending

September 30. Previously, a fiscal year ended on June 30 of a calendar year. See Congressional Budget Act of 1974,

Pub. L. No. 93-344, § 506(a)–(b), 88 Stat. 297, 322 (1974). The style and title of acts making appropriations for

FY1975 and prior fiscal years therefore track this earlier fiscal-year calendar. See, e.g., Foreign Assistance and Related

Programs Appropriations Act, 1972, Pub. L. No. 92-242, 86 Stat. 48, 48 (1972) (“Making appropriations for Foreign

Assistance and related programs for the fiscal year ending June 30, 1972, and for other purposes.”). Acts making

appropriations for FY1976 included funding for an additional three-month period, after June 30, 1976, to enable

transition to the new fiscal year calendar. See, e.g., Department of Transportation and Related Agencies Appropriation

Act, 1976, Pub. L. No. 94-134, 89 Stat. 695, 695 (1975) (“Making appropriations for the Department of Transportation

and related agencies for the fiscal year ending June 30, 1976, and the period ending September 30,1976, and for other

purposes”).

28 See 1 U.S.C. § 101; see also Killion, Understanding Federal Legislation, supra note 2, at 19.

29 See 1 U.S.C. § 102; see also Consolidated Appropriations Act, 2019, Pub. L. No. 116-6, 133 Stat. 13, 13 (2019)

(joint resolution); CONSTITUTION, JEFFERSON’S MANUAL, AND RULES OF THE HOUSE OF REPRESENTATIVES OF THE

UNITED STATES ONE HUNDRED SIXTEENTH CONGRESS, H.DOC. NO. 116-177, § 397 (2021) [hereinafter RULES OF THE

HOUSE] (A joint resolution “is a bill so far as the processes of the Congress in relation to it are concerned,” and, except

for a joint resolution proposing a constitutional amendment, “are sent to the President for approval and have the full

force of law” when enacted. “They are used for what may be called the incidental, unusual, or inferior purposes of

legislating,” including the making of certain appropriations).

30 The use of numbered sections to delineate preceding matter is more common in more recent statutes making regular

appropriations, in particular those pertaining to FY2008 or thereafter. Before then usually only a statement of

appropriations followed the act’s prefatory matter and preceded its appropriating provisions. Preceding matter is the

product of more complex appropriations act structure, and in particular Congress’s use of a consolidated or omnibus

measure to enact two or more regular appropriations acts.

31 See, e.g., Further Consolidated Appropriations Act, 2020, Pub. L. No. 116-94, Div. A., tit. II, § 222(a), 133 Stat.

2534, 2582 (2019) (referring to “the matter preceding division A of this consolidated Act” in directing certain transfers

(emphasis added)).

32 But see Consolidated and Further Continuing Appropriations Act, 2015, Pub. L. No. 113-235, §§ 9–11, 128 Stat.

2130, 2133–35 (2014) (preceding matter provisions appropriating funds, amending provisions of law relating to the

Northern Marianas Islands, and directing a study of electric rates in insular areas).

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its method of enactment, and whether the act combines two or more regular appropriations bills. 33

Typical preceding matter include:









In measures that consolidate several appropriations bills, a provision regarding

the meaning of the phrase “this Act.”34

A statement of appropriations, reciting that sums in the Act are appropriated for a

designated fiscal year out of any money in the Treasury not otherwise

appropriated.35

A provision regarding the availability or rescission of funds designated by

Congress for Overseas Contingency Operations36 or as an emergency

requirement.37

A provision reciting that the explanatory statement printed by the Chair of the

House Committee on Appropriations, or another designee, on a specified date,

shall have the same effect for funds allocation and act implementation “as if it

were a joint explanatory statement of a committee of conference.”38

Unnumbered Paragraphs

Following any preceding matter are the regular appropriations acts themselves, which begin with

unnumbered paragraphs. These paragraphs are the primary provisions of the act that provide an

agency with the budget authority that allows federal officers and employees to incur financial

obligations on behalf of the United States that will result in an outlay of federal funds.39

The unnumbered paragraphs of a given regular appropriations act will typically be organized by

title, each reflecting, in the case of executive branch agencies, funding for a given agency40 or

related functions of an agency.41 If a statute making regular appropriations enacts two or more

33 See, e.g., infra “Preceding Matter Concerning the Explanatory Statement.”

34 See, e.g., Consolidated and Further Continuing Appropriations Act, 2012, Pub. L. No. 112-55, § 3, 125 Stat. 552, 552

(2011) (“Except as expressly provided otherwise, any reference to ‘this Act’ contained in any division of this Act shall

be treated as referring only to the provisions of that division.”).

35 See, e.g., Consolidated Appropriations Act, 2017, Pub. L. No. 115-31, § 5, 131 Stat. 135, 137 (2017).

36 See, e.g., Consolidated Appropriations Act, 2014, Pub. L. No. 113-76, § 6, 128 Stat. 5, 7 (2014).

37 See, e.g., Consolidated and Further Continuing Appropriations Act, 2015, Pub. L. No. 113-235, § 6(a), 128 Stat.

2130, 2133 (2014).

38 See, e.g., Consolidated Appropriations Act, 2008, Pub. L. No. 110-161, § 4, 121 Stat. 1844, 1846 (2007). Certain

National Defense Authorization Acts included a similar provision. See Carl Levin and Howard P. “Buck” McKeon

National Defense Authorization Act for Fiscal Year 2015, Pub. L. No. 113-291, § 4, 128 Stat. 3292, 3312-13 (2014);

National Defense Authorization Act for Fiscal Year 2014, Pub. L. No. 113-66, § 4, 127 Stat. 672, 689 (2013); Duncan

Hunter National Defense Authorization Act for Fiscal Year 2009, Pub. L. No. 110-417, § 4, 122 Stat. 4356, 4372

(2008).

39 Maine Cmty. Health Options v. United States, 140 S. Ct. 1308, 1322 (2020) (“Budget authority is an agency’s power

provided by Federal law to incur financial obligations that will result in immediate or future outlays of government

funds.” (internal citation and quotation marks omitted)).

40 See, e.g., Energy and Water Development Appropriations Act, 2004, Pub. L. No. 108-137, tit. I, 117 Stat. 1827, 1827

(2003) (regular appropriations act title making appropriations for the civil functions of the Army Corps of Engineers).

41 See, e.g., Consolidated Appropriations Act, 2014, Pub. L. No. 113-76, Div. C, tit. II, 128 Stat. 5, 89 (2014) (regular

appropriations act title making appropriations for service branch and Department of Defense operations-andmaintenance expenses).

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regular appropriations acts together,42 the practice is that the measure will be drafted so that each

such act will appear in the statute in its own division.43

Appropriations are said to be made “under” a heading.44 A heading is a phrase in the

appropriations act that immediately precedes an unnumbered paragraph. The heading names the

appropriation or other authority contained in the paragraph.45 The heading may also include one

of a handful of frequently recurring parenthetical statements, some required by chamber rules,46

which serve to highlight that the text of the unnumbered paragraph contains particular types of

legal authorities.47

One of the most frequently recurring of these parenthetical heading statements reads “Including

Transfer of Funds.”48 A transfer shifts budget authority in one appropriation or fund account to

another.49 An agency needs statutory authority to transfer budget authority.50 Statutory authority to

make a transfer is called transfer authority.51 Thus, this parenthetical heading statement usually

denotes that the unnumbered paragraph includes transfer authority, permitting agencies to make

discretionary transfers, subject to the terms of the transfer authority.52 Occasionally, though, the

42 For a discussion of the jurisdictional divisions between subcommittee of the Appropriations Committees, see CRS

Report RL31572, Appropriations Subcommittee Structure: History of Changes from 1920 to 2021, by James V. Saturno

(discussing House and Senate committee and subcommittee structure).

43 See, e.g., Department of Defense and Labor, Health and Human Services, and Education Appropriations Act, 2019

and Continuing Appropriations Act, 2019, Pub. L. No. 115-245, § 2, 132 Stat. 2981, 2981 (2018) (table of contents).

44 See, e.g., Reuben Quick Bear v. Leupp, 210 U.S. 50, 77 (1908) (“the appropriation of the ‘treaty fund’ has always

been under the heading, ‘Fulfilling Treaty Stipulations and Support of Indian Tribes’” (emphasis added)); Consolidated

Appropriations Act, 2020, Pub. L. No. 116-93, Div. A, tit. VIII, § 8039, 133 Stat. 2317, 2344 (2019) (“Of the funds

appropriated to the Department of Defense under the heading ‘Operation and Maintenance, Defense-Wide’, not less

than $12,000,000” shall be made available for certain purposes (emphasis added)).

45 See, e.g., Continuing Appropriations and Military Construction, Veterans Affairs, and Related Agencies

Appropriations Act, 2017, and Zika Response and Preparedness Act, Pub. L. No. 114-223, Div. A, tit. II, 130 Stat. 857,

875 (2016) (“Grants for Construction of Veterans Cemeteries”).

46 See, e.g., CRS Report R44124, Appropriations Report Language: Overview of Components and Development, by

Kevin P. McNellis, at 22 (describing House rules requiring headings for rescissions and transfers of unexpended

balances) [hereinafter Appropriations Report Language].

47 The parenthetical heading statements serve to highlight the presence of authority in the unnumbered paragraph itself

but are not necessary, as a legal matter, for the paragraph to provide a particular type of authority or limitation. For

example, Congress has written an unnumbered paragraph to function as a “limitation on obligations,” even though the

paragraph’s heading did not reference a limitation. Compare Consolidated Appropriations Act, 2004, Pub. L. No. 108199, Div. F, tit. I, 118 Stat. 3, 313 (2004) (Emergency Preparedness Grants) (imposing a limitation on amounts that

could be made available in FY2004 for obligation from a permanent appropriation but lacking any reference in the

paragraph’s heading to a limitation on obligations), with Consolidated Appropriations Act, 2021, Pub. L. No. 116-260,

Div. L, tit. I (2020) (Emergency Preparedness Grants) (imposing a similar limitation on amounts that could be made

available for obligation in FY2021 from the same permanent appropriation and including a heading reference to

“limitation on obligations”).

48 See, e.g., Consolidated Appropriations Act, 2018, Pub. L. No. 115-141, Div. D, tit. III, 132 Stat. 348, 523 (2018)

(Naval Reactors).

49 See GAO GLOSSARY, supra note 1, at 95.

50 See 31 U.S.C. § 1532 (“An amount available under law may be withdrawn from one appropriation account and

credited to another or to a working fund only when authorized by law.”).

51 CRS Report R46417, Congress’s Power Over Appropriations: Constitutional and Statutory Provisions, by Sean M.

Stiff, at 34 [hereinafter Power Over Appropriations].

52 See, e.g., Agricultural, Rural Development, Food and Drug Administration, and Related Agencies Appropriations

Act, 2002, Pub. L. No. 107-76, tit. I, 115 Stat. 704, 712 (2001) (Animal and Plant Health Inspection Service Salaries

and Expenses) (noting parenthetically that the appropriation includes “transfers of funds”).

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parenthetical heading statement might signal that in enacting the statute, Congress, itself, has

directed that a transfer be made, in which case the transfer is not discretionary.53

Another common parenthetical heading statement is “Including Rescission of Funds.”54 A

rescission cancels the availability of existing, unexpired budget authority that was provided in a

prior statute.55 Thus, this parenthetical heading statement indicates that in addition to providing

new budget authority, the unnumbered paragraph following the heading rescinds all or part of the

unobligated balance of budget authority that was provided in a prior statute.56

For each fiscal year Congress enacts unnumbered paragraphs that are preceded by a parenthetical

heading statement that reads “Liquidation of Contract Authorization.”57 Congress uses this

parenthetical heading statement to flag an unnumbered paragraph that discharges obligations

entered into using a type of budget authority called contract authority.58 Contract authority only

permits the making of a promise to pay in advance of appropriations.59 Such unnumbered

paragraphs provide liquidating appropriations, which are made only to pay the obligations

already incurred using contract authority.60

In addition, certain unnumbered paragraphs appear under headings that include the parenthetical

phrase “Limitation on Obligations.” Such unnumbered paragraphs limit the amount or type of

obligations that an agency may incur under budget authority provided in another statute, such as

in a permanent appropriation61 or through contract authority provided in an authorizing statute.62

53 See, e.g., Consolidated Appropriations Act, 2020, Pub. L. No. 116-93, Div. B, tit. I, 133 Stat. 2317, 2388 (2019)

(Periodic Censuses and Programs) (“That within the amounts appropriated, $3,556,000 shall be transferred to the

‘Office of Inspector General’ account for activities associated with carrying out investigations and audits related to the

Bureau of the Census”); see also United States Capitol Police—Current Rate for Operations Under the 2007

Continuing Resolution, B-308773, 2007 WL 136313, at *4 (Comp. Gen. Jan. 11, 2007) (explaining that for purposes of

calculating a current rate of operations under a continuing resolution, an agency must distinguish between a transfer

that the agency makes “pursuant to statutory authority but at its discretion” and a transfer made because the transfer is

“directed by law”).

54 See, e.g., Consolidated Appropriations Act, 2018, Pub. L. No. 115-141, Div. D, tit. III, 132 Stat. 348, 523 (2018)

(Defense Nuclear Nonproliferation).

55 See GAO GLOSSARY, supra note 1, at 85.

56 See, e.g., Further Consolidated Appropriations Act, 2020, Pub. L. No. 116-94, Div. D., tit. I, 133 Stat. 2534, 2686

(2019) (Bureau of Land Management, Management of Lands and Resources) (“Of the unobligated balances from

amounts made available under this heading in fiscal year 2017 or before, $19,000,000 is permanently rescinded.”).

57 See, e.g., Consolidated Appropriations Act, 2016, Pub. L. No. 114-113, Div. L, tit. I, 129 Stat. 2242, 2841 (2015)

(Grants-in-Aid for Airports).

58 See GAO GLOSSARY, supra note 1, at 21.

59 See Nat’l Ass’n of Reg’l Councils v. Costle, 564 F.2d 583, 586 (D.C. Cir. 1977) (“Contract authority is legislative

authorization for an agency to create obligations in advance of an appropriation. It requires a subsequent appropriation

or some other source of funds before the obligation incurred may actually be liquidated by the outlay of monies.”).

Contract authority is not the general ability of an agency to enter into contracts in order to carry out programs; rather, it

is statutory authority to enter into obligations in advance of available appropriations. See id.

60 See GAO GLOSSARY, supra note supra note 1, at 65.

61 Congress has used this parenthetical heading statement for an unnumbered paragraph that related to the Hazardous

Materials Emergency Preparedness Fund, a permanent appropriation. See, e.g., 49 U.S.C. § 5116(h); Consolidated

Appropriations Act, 2021, Pub. L. No. 116-260, Div. L, tit. I (2020) (Emergency Preparedness Grants).

62 See, e.g., Consolidated Appropriations Act, 2017, Pub. L. No. 115-31, Div. K, tit. I, 131 Stat. 135, 735 (2017)

(Federal-Aid Highways) (“Funds available for the implementation or execution of Federal-aid highway and highway

safety construction programs authorized under titles 23 and 49, United States Code, and the provisions of the Fixing

America’s Surface Transportation Act shall not exceed total obligations of $43,266,100,000 for fiscal year 2017.”).

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The unnumbered paragraph follows the heading. As noted above, the chief function of the

paragraph is to provide budget authority. Congress usually defines the authority provided by a

particular grant of budget authority by defining its “availability” along three dimensions: an

amount of budget authority, the object or objects for which that budget authority is provided, and

the time period for which the recipient agency may obligate the budget authority.

Congress might write single-sentence paragraphs.63 Perhaps more commonly, Congress writes

unnumbered paragraphs to follow a principal clause/proviso structure. In this form, the paragraph

begins with a principal clause setting forth an amount of budget authority that the paragraph

makes available.64 Set off from the principal clause by means of a colon are one or more provisos,

which are clauses that begin with the italicized word “Provided.” The first proviso following a

principal clause will begin “Provided, that.” Any subsequent provisos relating to the same

principal clause will begin “Provided further, that.” A proviso usually states conditions that apply

to the allocation65 or obligation66 of the budget authority provided in the paragraph’s principal

clause.67

General Provisions

Following the unnumbered paragraphs that provide budget authority are general provisions.68

They often appear as numbered sections. Relevant general provisions might appear in the same

title69 as the unnumbered paragraphs to which they relate or in separate titles of the same regular

appropriations act.70 Recent Financial Services and General Government appropriations acts

contain general provisions that, by their terms, apply “government-wide.”71 It is possible for

63 See, e.g., Consolidated and Further Continuing Appropriations Act, 2015, Pub. L. No. 113-235, Div. A., tit. I, 128

Stat. 2130, 2144 (2014) (State Mediation Grants) (“For grants pursuant to section 502(b) of the Agricultural Credit Act

of 1987, as amended (7 U.S.C. 5101–5106), $3,404,000.”).

64 See, e.g., id., Div. D, tit. IV, 128 Stat. at 2330 (“For expenses necessary of the [Nuclear Regulatory Commission]

Office of Inspector General in carrying out the provisions of the Inspector General Act of 1978, $12,071,000, to remain

available until September 30, 2016 . . . .”). The principal clause may itself allocate part of the aggregate sum to one of

the several purposes for which the appropriation is available. See, e.g., Consolidated Appropriations Act, 2016, Pub. L.

No. 114-113, Div. A, tit. I, 129 Stat. 2242, 2246 (2015) (providing roughly $44 million for the Department of

Agriculture’s Office of the Chief Information Officer “of which not less than” $28 million “is for cybersecurity

requirements of the Department”).

65 Further Consolidated Appropriations Act, 2020, Pub. L. No. 116-94, Div. A., tit. II, 133 Stat. 2534, 2557 (2019)

(Maternal and Child Health) (stating that notwithstanding specified provisions of the Social Security Act “not more

than $119,116,000 [of the appropriation] shall be available for carrying out special projects of regional and national

significance pursuant to section 501(a)(2) of such Act”).

66 Id., Div. B, tit. I, 133 Stat. at 2618 (Animal and Plant Health Inspection Service, Salaries and Expenses) (stating that

no funds shall be used to formulate or administer a brucellosis eradication program for FY2020 if the program did not

require a specified State funding match).

67 See infra “The Relationship Between Principal Clause and Proviso.”

68 Certain regular appropriations acts style these numbered provision as “administrative provisions.” See, e.g.,

Consolidated Appropriations Act, 2016, Pub. L. No. 114-113, Div. E, tit. I, 129 Stat. 2242, 2429 (2015).

69 See, e.g., Consolidated Security, Disaster Assistance, and Continuing Appropriations Act, 2009, Pub. L. No. 110329, Div. E, tit. I, 122 Stat. 3574, 3697 (2008).

70 See, e.g., Department of Defense and Full-Year Continuing Appropriations Act, 2011, Pub. L. No. 112-10, Div. A,

tit. VIII, 125 Stat. 38, 55 (2011).

71 See Consolidated Appropriations Act, 2008, Pub. L. No. 110-161, Div. D, tit. VII, 121 Stat. 1844, 2019 (2007). Prior

to Appropriations Committee reorganization at the start of the 110th Congress, general provisions that by their terms

applied government-wide appeared in regular appropriations acts making appropriations for the Departments of

Transportation and the Treasury and for independent agencies under the title “General Provisions–Departments,

Agencies, and Corporations.” See, e.g., CRS Report RL31572, Appropriations Subcommittee Structure: History of

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general provisions that Congress last enacted in a prior fiscal year’s appropriations act to continue

to affect an agency’s statutory authorities in the current fiscal year, including its authority to

obligate new budget authority.72

General provisions serve a range of functions. As in unnumbered paragraphs,73 general provisions

may grant transfer authority74 or rescind existing budget authority.75 As in unnumbered

paragraphs, if general provisions include transfer authority or rescissions, the act will typically

indicate the existence of such authority using a parenthetical statement that appears either at the

beginning of the general provisions or before the general provision to which the parenthetical

statement relates.76 General provisions may impose limitations on the use of budget authority

provided in the act.77 General provisions may also impose new duties on an agency or provide the

agency new authorities.78 A general provision might, itself, appropriate funds.79 General

provisions may even express in precatory terms the sense of Congress on a particular subject.80

Legislative Reports

The discussion above highlights the four basic components of modern-day statutes making

regular appropriations—the provisions of an appropriations bill that become law after being

passed in identical form by both houses, presented to the President, and either approved by the

President or enacted into law over the President’s disapproval.81 The regular appropriations

process also yields legislative reports drafted to accompany the regular appropriations bills.

Unlike the bills they accompany, the reports are not subject to bicameral passage and

presentment, and thus do not generally have legal effect unless an appropriations act contain

legally sufficient terms of incorporation for report material.82

Changes from 1920 to 2021, by James V. Saturno, at 11 (describing the 2007 subcommittee reorganization);

Consolidated Appropriations Act, 2004, Pub. L. No. 108-199, Div. F, tit. VI, 118 Stat. 3, 349 (2003) (reflecting

organization of government-wide general provisions prior to the 2007 subcommittee reorganization).

72 See infra “Determining How Long a Provision Affects Substantive Law.”

73 See supra notes 48–56 and accompanying text.

74 See, e.g., Departments of Labor, Health and Human Services, and Education, and Related Agencies Appropriations

Act, 2002, Pub. L. No. 107-116, tit. III, § 304, 115 Stat. 2217, 2208 (2002) (Department of Education general transfer

authority).

75 See, e.g., Consolidated Appropriations Act, 2014, Pub. L. No. 113-76, Div. B, tit. V, § 524, 128 Stat. 5, 83 (2014)

(rescinding or providing for the rescission of unobligated balances of six accounts).

76 See, e.g., id.

77 See, e.g., Consolidated Appropriations Act, 2020, Pub. L. No. 116-93, Div. C, tit. VII, § 708, 133 Stat. 2317, 2486

(2019) (imposing limitations on interagency financing of boards and similar entities if the relevant interagency entity

lacks specific statutory authority to receive financial support from more than one agency or instrumentality).

78 See, e.g., Department of Defense and Labor, Health and Human Services, and Education Appropriations Act, 2019

and Continuing Appropriations Act, 2019, Pub. L. No. 115-245, Div. A, tit. VIII, § 8030, 132 Stat. 2981, 3006 (2018)

(allowing the Secretary of the Air Force to convey excess Air Force housing units to Indian tribes, without

consideration and notwithstanding any other provision of law).

79 See, e.g., Consolidated Appropriations Act, 2020, Pub. L. No. 116-93, Div. A, tit. VIII, § 8121, 133 Stat. 2317, 2365

(2019) (appropriating an additional $315 million under the heading “Operation and Maintenance, Defense-Wide” for

the purpose of supporting public elementary and secondary public schools on military installations).

80 See, e.g., id., Div. C., tit. VII, § 727, 133 Stat. at 2490 (expressing the United States’ commitment to the health of

Olympic, Pan American, and Paralympic athletes and to strict adherence to anti-doping in sport).

81 See U.S. CONST. art. I, § 7, cl. 2; see also id. (explaining that bills not returned by the President within 10 days of

presentment “shall be a law” unless adjournment of Congress prevents a timely return).

82 See infra “Effect of Report Provisions.”

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Over the course of its congressional consideration, a regular appropriations bill may be

accompanied by several reports. These reports may include a report drafted by the relevant

subcommittee of the House Committee on Appropriations to accompany the appropriations bill

drafted by that subcommittee; a report drafted by the relevant subcommittee of the Senate

Committee on Appropriations to accompany the bill that it considers; and, last of all, a report

styled as either a joint explanatory statement or as an explanatory statement.83 In their

appearance, a joint explanatory statement or explanatory statement may be similar to a committee

report.84 Whether a regular appropriations act is accompanied by a joint explanatory statement, an

explanatory statement, or no statement at all, depends on the procedure Congress used to enact

the relevant appropriations statute.

A joint explanatory statement is a formal product of a conference committee, which is one

method of resolving differences between the House- and Senate-passed versions of a bill. A

conference committee drafts a conference report, which “contains only formal statements of

whatever procedural actions the conferees propose that one or both houses take and the formal

legislative language the conferees propose that the two houses approve.”85 A conference

committee also drafts a joint explanatory statement to accompany the conference report. The joint

explanatory statement details the effect that the amendments or propositions of the conference

report will have on bill to which they relate.86

An explanatory statement is an informal product of action by Congress to resolve differences

between the House- and Senate-passed versions of legislation using an exchange of amendments

between the Houses rather than a conference committee. One or more bill managers involved in

negotiating the proposed amendment typically drafts the explanatory statement. 87

Reports that accompany appropriations acts can serve several functions. Even when the reports do

not impose legally binding requirements on the use of budget authority, the reports can, as a

practical matter, influence an agency’s use of its authorities.88 The reports may summarize the

provisions of the act. The reports may also contain detailed directives for the agencies funded in

the act, primarily (though not necessarily) related to program implementation. One common set

of directives reflects expectations of how an agency will allocate the funds of a given

appropriation among the various programs, projects, or activities that the appropriation funds. 89

83 See generally McNellis, Appropriations Report Language, supra note 46.

84 See, e.g., Roeder v. Islamic Republic of Iran, 333 F.3d 228, 236 (D.C. Cir. 2003) (noting that a joint explanatory

statement of a conference committee takes “the form of a committee report”). As for an explanatory statement, a bill

manager will enter the text of the statement in the Congressional Record before the bill’s enactment. See, e.g., 163

Cong. Rec. H3327 (daily ed. May 3, 2017) (joint explanatory statement accompanying H.R. 244, the Consolidated

Appropriations Act, 2017). After enactment, the House Appropriations Committee may prepare a committee print of

the regular appropriations act or acts, together with any explanatory statement, at which point the explanatory

statement’s formatting more closely resembles a committee report. See H. COMM. ON APPROPRIATIONS, 1

CONSOLIDATED APPROPRIATIONS ACT, 2017 (Comm. Print 2017).

85 See CRS Report 98-382, Conference Reports and Joint Explanatory Statements, by Christopher M. Davis, at 1.

86 See infra note 341.

87 See infra “Preceding Matter Concerning the Explanatory Statement.”

88 Lincoln v. Vigil, 508 U.S. 182, 193 (1993) (“[W]e hardly need to note that an agency’s decision to ignore

congressional expectations” as expressed in a nonbinding fashion in a report accompanying a regular appropriations act

“may expose it to grave political consequences.”).

89 See CRS Report R46240, Introduction to the Federal Budget Process, by James V. Saturno, at 27 (“The

appropriation [in the statute] sometimes includes directives or provisos that allot specific amounts to particular

activities within the account, but the more common practice is to provide detailed information on the amounts intended

for each activity in other sources, principally the committee reports accompanying the measures.”); McNellis,

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Regular appropriations acts commonly refer to their accompanying reports. A regular

appropriations act might, for example, state that an appropriation “shall be made available in the

amounts specifically designated in the respective tables included in the explanatory statement”

referenced in the act’s preceding matter.90

Selected Statutory Interpretation Questions

Both in their drafting and in their implementation, regular appropriations acts raise a number of

recurring questions of statutory interpretation. What does it mean for budget authority to be

available for a particular time period? Might a provision proposed for inclusion in a regular

appropriations act be construed as permanent or, alternatively, only effective for the fiscal year to

which the act relates? A discussion of these and other frequently recurring questions follows.

The Relationship Between Principal Clause and Proviso

Usually, a statute’s provisions will be divided between two or more sections. Sections are the

basic unit of organization for most federal statutes. Congress “ordinarily adheres to a hierarchical

scheme in dividing statutory sections.”91 In this hierarchy appear units of text denoted, in

descending order, as subsections, paragraphs, subparagraphs, clauses, subclauses, items, and

subitems, among others.92 Congress uses this structure, among other things, to express the

relationship between different parts of a section. For example, Congress might set forth the

section’s general rule in an initial subsection, and then establish related points in paragraphs

subordinate to that subsection.93

By contrast, the unnumbered paragraphs of a regular appropriations act, which could be

characterized as the basic unit of organization for appropriations acts, usually have no internal

hierarchy of sections, subsections, and so on.94 Instead, within unnumbered paragraphs Congress

uses a principal clause/proviso structure. Congress once used this structure more widely95 but

now generally reserves it for regular and supplemental appropriations acts.96 The principal clause

Appropriations Report Language, supra note 46, at 4 & fig. 1 (providing an example of a report allocation table).

90 Consolidated Appropriations Act, 2018, Pub. L. No. 115-141, Div. K, tit. VII, § 7019(a), 132 Stat. 348, 873 (2018);

see also infra “The Exception: Incorporation by Reference.”

91 Koons Buick Pontiac GMC, Inc. v. Nigh, 543 U.S. 50, 60 (2004).

92 See id. at 60–61 (relying on drafting manuals prepared by the House and Senate Offices of the Legislative Counsel to

interpret the Truth in Lending Act’s use of the phrase “under this subparagraph” as a statutory cross reference).

93 See, e.g., M. DOUGLASS BELLIS, STATUTORY STRUCTURE AND LEGISLATIVE DRAFTING CONVENTIONS: A PRIMER FOR

JUDGES 9 (Fed. Jud. Ctr. 2008) (demonstrating how a section’s internal structure can be used to express the section’s

“main idea” in an initial subsection and related “sub-ideas” in hierarchically subordinate items such as paragraphs).

94 FILSON & STROKOFF, supra note 14, § 8.2 (distinguishing between the unnumbered paragraphs of regular

appropriations acts, which appropriate funds “under headings with no designations,” and the general provisions of a

regular appropriations act, which “are drafted in the traditional style” using sections and, within sections, an internal

hierarchy of subsections, paragraphs, and so on).

95 See, e.g., Pub. Res. No. 76-87, 54 Stat. 611, 611 (1940) (codified as amended at 22 U.S.C. § 444(a)) (exempting

American Red Cross vessels traveling to foreign states from Neutrality Act prohibitions on intercourse with belligerent

states “provided, that” the destination state is not under a blockade that a belligerent is attempting to enforce by

destroying vessels); Pub. L. No. 63-90, 38 Stat. 347, 347 (1914) (providing for the raising of a volunteer army in times

of actual or imminent war and defining in a proviso volunteer terms of enlistment and mustering out requirements).

96 See SENATE OFF. OF THE LEGIS., LEGISLATIVE DRAFTING MANUAL 69, § 308(b) (1997) (advising against use of the

principal clause/proviso structure but stating “[t]his rule may be broken in the case of an appropriations Act”); cf.

HOUSE LEGISLATIVE COUNSEL’S MANUAL ON DRAFTING STYLE, HLC DOC. NO. 104-1, at 63 (1995) (referring to use of

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will grant an agency budget authority (i.e., legal authority to incur obligations). One or more

provisos then typically follow the principal clause.97

As a matter of ordinary meaning, and read in isolation, the term that separates the principal clause

from its provisos, “provided,” might plausibly bear more than one meaning.98 “Provided” might

mean “except” that or “[o]n the condition that.”99 The proviso might therefore create an exception

to, or impose a condition on, the budget authority provided in its principal clause. “Provided”

might also stand in the place of the conjunction “and.”100 If “provided” is used as a conjunction,

the proviso might not necessarily be confined to the budget authority provided in the principal

clause. Such a proviso might stand, instead, as independent matter whose breadth does not

depend on the principal clause.101

At least since 1841,102 Supreme Court case law has helped distinguish between these two

potential meanings by establishing a presumptive relationship between the principal clause and a

proviso that follows it: the scope of the proviso is confined to the subject matter of the principal

clause only, and either creates an exception to, or otherwise restrains, the authority provided in

the principal clause.103

United States v. Morrow104 illustrates the effect this presumption can have on budget authority.

There, Congress appropriated amounts for military clerks in two appropriations. In one

appropriation, Congress provided line-item amounts for clerks at the territorial departments’

headquarters, as well as an amount for additional pay for those in foreign service.105 A proviso

followed the line-item appropriation, directing a $200 increase in the annual salary of certain

clerks, including those in the headquarters of a territorial department, while serving in the

Philippine Islands.106 In the second appropriation, Congress provided a lump-sum amount for the

the term “provided” as “archaic”). Continuing appropriations acts typically do not include unnumbered paragraphs but

rather appropriate sums by referencing the rate for operations provided in a particular regular appropriations act or bill.

See, e.g., Continuing Appropriations Act, 2021 and Other Extensions Act, Pub. L. No. 116-159, Div. A, § 101, 134

Stat. 709, 710 (2020).

97 See supra notes 65–67 and accompanying text.

98 Cf. McDonald v. United States, 279 U.S. 12, 21–22 (1929) (noting that Acts of Congress employ the word provided

in a principal clause/proviso structure “for many purposes”).

99 Provided, BLACK’S LAW DICTIONARY (11th ed. 2019) (definitions 1 and 2).

100 Id. (definition 3).

101 Georgia R.R. & Banking Co. v. Smith, 128 U.S. 174, 181 (1888) (“It is a common practice in legislative

proceedings, on the consideration of bills, for parties desirous of securing amendments to them to precede their

proposed amendments with the term ‘provided,’ so as to declare that, notwithstanding existing provisions, the one thus

expressed is to prevail; thus having no greater signification than would be attached to the conjunction ‘but’ or ‘and’ in

the same place, and simply serving to separate or distinguish the different paragraphs or sentences.”).

102 See Minis v. United States, 40 U.S. 423, 445–46 (1841).

103 See, e.g., United States v. McClure, 305 U.S. 472, 478 (1939); see also Abbott v. United States, 562 U.S. 8, 25–26

(2010) (applying the same presumption to a subparagraph that began with the phrase “except that”).

104 266 U.S. 531 (1925).

105 For example, the statute appropriated $2,000 per year for the chief clerk of the Office of the Chief of Staff. See, e.g.,

Pub. L. No. 63-91, 38 Stat. 351, 355 (1914).

106 See id. “A lump-sum appropriation is one that is made to cover a number of specific programs, projects, or items,”

while “a line-item appropriation is available only for the specific object described.” South Carolina v. United States,

144 Fed. Cl. 277, 284 (2019) (internal quotation marks omitted). These terms are relative concepts, and depending on

the objects at issue even apparent “line-item” appropriations could be characterized as lump-sum appropriations. See

Stiff, Power Over Appropriations, supra note 51, at 35& n.313 (citing Kate Stith, Rewriting the Fiscal Constitution:

The Case for Gramm-Rudman-Hollings, 76 CAL. L. REV. 593, 612 (1988)).

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incidental expenses of the Quartermaster Corps.107 Morrow was the chief clerk of the depot

quartermaster’s office at the Philippine Department of the Army headquarters, and his regular

salary was paid from the second appropriation (i.e., the lump-sum appropriation).108 Morrow

argued he fell within the terms of the first appropriation’s proviso (i.e., the line-item

appropriation) and was thus entitled to the $200 increase109—he was a “clerk[],” serving abroad

in the “Philippine Islands,” in the “headquarters” of a “territorial department.”110

The Court rejected Morrow’s claim.111 The general function of a proviso, the Court explained, “is

to except something from” the principal clause “or to qualify and restrain its generality and

prevent misinterpretation.”112 Thus, the proviso’s “grammatical and logical scope is confined to

the subject-matter of the principal clause,” and presumptively “refers only to the provision to

which it is attached.”113 Reading the proviso as confined to its principal clause, the $200 increase

applied only to those clerks whose annual salaries were supported by the line-item appropriation,

excluding those clerks, such as Morrow, whose salaries were paid out of the lump-sum

appropriation.114 The $200 increase did not apply, more broadly, to any clerk who might fall

within the scope of the proviso, as it might if it had been enacted as a free-standing provision not

linked to the line-item appropriation’s principal clause.115

As noted above, the presumption that a proviso is confined to the subject matter of its principal

clause is only that: a presumption.116 The text and structure of a statute might overcome the

presumption, so that a court would read a proviso in an appropriations act as introducing “new

matter extending rather than limiting or explaining that which has gone before.”117

Republic of Iraq v. Beaty118 demonstrates how a proviso overcomes the presumption concerning

its connection to its principal clause. There, the Republic of Iraq argued that a 2003 supplemental

appropriations act119 enacted after the 2003 invasion of Iraq led to the removal of many of the

consequences of the country’s 1990 designation as a state sponsor of terrorism.120 Among other

things, the 1990 designation caused Iraq to lose its immunity from suit when, in 1996, Congress

added a terrorism exception to the Foreign Sovereign Immunities Act (FSIA).121 With immunity

107 See, e.g., Pub. L. No. 63-91, 38 Stat. 351, 362–63 (1914).

108 Morrow, 266 U.S. at 533–34.

109 Id. at 534.

110 Pub. L. No. 63-91, 38 Stat. 351, 355 (1914).

111 Morrow, 266 U.S. at 536–37.

112 Id. at 534.

113 Id. at 534–35.

114 Id. at 534.

115 See id. at 535.

116 Cf. Block v. Cmty. Nutrition Inst., 467 U.S. 340, 349 (1984) (noting that “presumption favoring judicial review of

administrative action is just that,” “a presumption” that “like all presumptions used in interpreting statutes, may be

overcome by specific language or specific legislative history that is a reliable indicator of congressional intent”).

117 Interstate Com. Comm’n v. Baird, 194 U.S. 25, 37 (1904).

118 556 U.S. 848 (2009).

119 Emergency Wartime Supplemental Appropriations Act, 2003, Pub. L. No. 108-11, 117 Stat. 559 (2003).

120 See Beaty, 556 U.S. at 852–53 & 855.

121 See id. Congress repealed the exception at issue in Morrow in 2008, when it adopted a new terrorism exception, now

codified at 28 U.S.C. § 1605A. See National Defense Authorization Act for Fiscal Year 2008, Pub. L. No. 110-181,

Div. A, tit. X, § 1083(a), (b), 122 Stat. 3, 338, 341 (2008).

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allegedly restored as a result of the 2003 appropriations act, Iraq sought dismissal of claims

related to prisoner abuse that occurred during or after the Persian Gulf War.122

Iraq’s argument relied upon a general provision of the 2003 appropriations act that used a

principal clause/proviso structure.123 The principal clause permitted the President to suspend trade

and economic sanctions imposed under “any provision” of the Iraq Sanctions Act of 1990

(ISA).124 One of several provisos allowed the President to make inapplicable to Iraq a Foreign

Assistance Act prohibition on providing aid to a state sponsor of terrorism.125 The proviso also

allowed the President to make inapplicable to Iraq “any other provision of law that applies to

countries that have supported terrorism.”126 President George W. Bush exercised all of these

waiver authorities via a presidential memorandum.127

Applying the presumption in Morrow, the court of appeals read the disputed, any-other-provisionof-law proviso in the context of its principal clause.128 The principal clause and the disputed

proviso itself specifically referenced only statutes that imposed “obstacles to assistance to

designated countries.”129 The court of appeals reasoned that “[n]one of these provisions remotely

suggests any relation” to a statute like the FSIA that dealt with “the jurisdiction of the federal

courts.”130 Thus, the disputed proviso’s more general reference to “any other provision of law”

included only those provisions that, like the principal clause, restricted “assistance and funding

for the new Iraqi Government.”131 The any-other-provision-of-law language did not include a

statute, such as the FSIA, that related to the jurisdiction of federal courts.132

The Supreme Court disagreed.133 The Court explained, in keeping with Morrow, that a proviso

usually creates an exception to a principal clause or qualifies, restrains, or explains that clause.134

However, the Beaty Court noted that a proviso may introduce “independent legislation” whose

scope is not confined to its principal clause.135 The Court stated that this second usage “may be

lazy drafting” in view of the presumptive function of a proviso, but the second usage nonetheless

122 See Beaty, 556 U.S. at 854.

123 Emergency Wartime Supplemental Appropriations Act, 2003, § 1503, 117 Stat. at 579.

124 Id.; see also generally Foreign Operations, Export Financing, and Related Programs Appropriations Act, 1991, Pub.

L. No. 101-513, tit. V, §§ 586–586J, 104 Stat. 1979, 2047–55 (1990) (Iraq Sanctions Act of 1990).

125 Emergency Wartime Supplemental Appropriations Act, 2003, § 1503, 117 Stat. at 579; see also 22 U.S.C. § 2371(a)

(Foreign Assistance Act prohibition on assistance to a country if the Secretary of State determines that the government

of that country has repeatedly supported acts of international terrorism).

126 Emergency Wartime Supplemental Appropriations Act, 2003, § 1503, 117 Stat. at 579 (emphasis added).

127 See Beaty, 556 U.S. at 854.

128 See Acree v. Republic of Iraq, 370 F.3d 41, 52–53 (D.C. Cir. 2004) (citing Morrow, 266 U.S. at 534–35), abrogated

by Beaty, 556 U.S. at 858; see also Beaty, 556 U.S. at 853, 854–55 (explaining how the D.C. Circuit’s 2004 decision in

Acree, an earlier case, bore on the cases consolidated for review in Beaty, which the lower courts decided by applying

Acree).

129 Acree, 370 F.3d at 55.

130 Id.

131 Id. at 57.

132 Id.

133 Beaty, 556 U.S. at 856 (holding that because the Foreign Sovereign Immunities Act’s terrorism exception was a

“provision of law” that applied to “countries that have supported terrorism” within the meaning of the supplemental

appropriations act, the President’s memorandum made that provision of law inapplicable to Iraq).

134 Id. at 858 (characterizing this reading as a proviso’s “general (and perhaps appropriate) office”).

135 Id. (internal quotation marks omitted).

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applied to the disputed proviso.136 Thus, the Court read the principal clause to grant “the President

a power; the [disputed] proviso purported to grant him an additional power.”137 The proviso “was

not, on any fair reading, an exception to, qualification of, or restraint on the principal power.”138

The Court supported this reading by contrasting the disputed proviso with other provisos to the

same principal clause, the latter of which included language that “plainly sought to define and

limit the authority granted” in the principal clause.139 No such language appeared in the disputed

proviso.140 Thus, FSIA’s terrorism exception was a “provision of law” that applied to “countries

that have supported terrorism.”141 The President’s memorandum made the terrorism exception

inapplicable to Iraq,142 even if Congress did not have the terrorism exception in mind when it

drafted the disputed proviso.143

Deciding whether a proviso is either confined to the scope of its principal clause (the presumptive

rule) or instead contains independent matter (the exception) depends on the text and structure of

the appropriations act text at issue. One indication that the presumptive rule applies may be, as in

Morrow, that the principal clause grants budget authority rather than, as in Beaty, new substantive

authority.144 On the other hand, the exception might apply if, as in Beaty, the proviso’s use of

broad language, not expressly tied to the authority of the principal clause, appears alongside other

provisos that are so expressly tied to the principal clause.145

Duration of Budget Authority

A critical component of the budget authority provided in a regular appropriations act is its

duration. This characteristic of budget authority describes the time period within which budget

authority is available for obligation.146 It is a key attribute of an agency’s obligational authority. If

Congress limits the duration of particular funding authority, the agency must return to Congress

when the funding lapses “to justify continuing the program or to debate about how much is

needed to carry on the program at the same or a different level.”147

Perhaps most commonly,148 the duration of budget authority is of a “definite” or “fixed” period.149

The appropriation will remain available for obligation until the end of the fiscal year for which

136 Id.

137 Id.

138 Id. (emphasis in original).

139 See id. at 859 (examining provisos containing express limitations on the authority of “this section”).

140 See id.

141 See id. at 856.

142 See id.

143 Id. at 860 (“It may well be that when Congress enacted the [supplemental appropriations act] it did not have

specifically in mind the terrorism exception to sovereign immunity.”).

144 Compare supra notes 105–106 and accompanying text, with supra notes 124–126 and accompanying text.

145 See supra notes 139–140 and accompanying text.

146 See GAO GLOSSARY, supra note 1, at 22.

147 B-217722, 64 Comp. Gen. 359, 362 (Mar. 18, 1985).

148 For example, in 2018, the Congressional Budget Office calculated that of the approximately $1.155 trillion in

“discretionary budget authority provided for FY 2017,” with certain exclusions, Congress made 84% of that amount

available as fixed-period budget authority and 15% as no-year budget authority. See Letter from Keith Hall, Director,

Cong. Budget Off., to Rep. Steve Womack, Co-Chair, Joint Select Comm. on Budget & Appropriations Process

Reform, at 2 (May 21, 2018), https://www.cbo.gov/system/files/2018-07/54155-appropriationsletter.pdf.

149 See, e.g., GAO GLOSSARY, supra note 1, at 56; 31 U.S.C. § 1552 (prescribing account closing rules for a “fixed

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the act makes appropriations (i.e., one-year funds), or the appropriation will remain available for

obligation for more than one fiscal year (i.e., multi-year funds).150 Alternatively, duration may be

“indefinite.”151 Such an appropriation will remain available until it is expended (i.e., no-year

funds).

Regular appropriations may pose two primary questions concerning the duration of budget

authority. One such question arises when the appropriation itself omits express reference to its

duration. The second such question, and the more important of the two given the frequency with

which it affects agency decisionmaking, is what effect duration has on an agency’s ability to use a

particular amount of funds to meet its expenses.

Determining Duration

In most cases, the portions of a regular appropriations act that provide budget authority will

expressly state the duration of that budget authority. That is, the unnumbered paragraph will state

not only the amount of the appropriation and the objects for which it is available, but also the

time period within which the appropriation is available for obligation: “For necessary expenses of

the Management Directorate [of the Department of Homeland Security] for research and

development, $2,545,000, to remain available until September 30, 2020.”152 In those cases, the

status of an appropriation as one-year, multi-year, or no-year funds will be apparent from the

statute.

However, it is possible for an unnumbered paragraph to omit reference to any duration; the

paragraph might instead state only the amount of the appropriation and the objects for which it is

available.153 In those circumstances, and depending on the regular appropriations act at issue,

several features of statute may interact to supply the duration that is missing from the

unnumbered paragraph.

The style and title of a regular appropriations act, part of its prefatory matter, recites that the act

makes appropriations for a particular fiscal year ending September 30.154 Moreover, according to

a statutory rule of construction that applies to appropriations generally, “an appropriation in a

regular, annual appropriation law may be construed to be permanent or available continuously”

only if the appropriation is for particular objects or “expressly provides that it is available after

the fiscal year covered by the law in which it appears.”155 Together, according to the Government

Accountability Office (GAO), these two provisions create an “implication of fiscal year

availability” for those appropriations made in an appropriations act that lack an express

duration.156 Where no duration is stated, at least as an initial matter, the appropriation is a oneappropriation account”).

150 A multi-year appropriation might be available until the end of a subsequent fiscal year, but it is not necessarily the

case that the period of availability of multi-year appropriations is measured in whole fiscal years. See GAO GLOSSARY,

supra note 1, at 22 (including forward funding as a type of multiyear authority).

151 See, e.g., id.; 31 U.S.C. § 1555 (prescribing account closing rules an appropriation account that is available for

obligation an indefinite period).

152 Consolidated Appropriations Act, 2019, Pub. L. No. 116-6, Div. A , tit. I, 133 Stat. 13, 16 (2019) (emphasis added).

153 See, e.g., Further Consolidated Appropriations Act, 2020, Pub. L. No. 116-94, Div. A., tit. IV, 133 Stat. 2534, 2602

(2019) (National Mediation Board, Salaries and Expenses) (“For expenses necessary to carry out the provisions of the

Railway Labor Act, including emergency boards appointed by the President, $14,050,000.”).

154 See 1 U.S.C. § 105.

155 31 U.S.C. § 1301(c). The particular objects referenced in the statute are “rivers and harbors, lighthouses, public

buildings, or the pay of the Navy and Marine Corps.” Id.

156 B-145276, 45 Comp. Gen. 236, 236 (Nov. 5, 1965) (referencing 31 U.S.C. § 718, a predecessor of 31 U.S.C.

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year appropriation, available for obligation only through the end of the fiscal year for which the

regular appropriations act makes appropriations.157

There is a potential qualification to this “implication of fiscal year availability” though. Before

Congress makes an appropriation in a regular appropriations act, it typically enacts a statute

authorizing appropriations.158 This statute might state the duration of the budget authority whose

appropriation it authorizes, including multi-year or no-year durations. Later, Congress might then

reference the authorizing statute—the one authorizing appropriations of more than one fiscal

year’s duration—when making an appropriation that does not, itself, state a duration.159

A reference of this type in the appropriation to an authorizing statute usually identifies the object

for which the appropriation is available (e.g., for a particular type of direct loan).160 The reference

might also be understood to supply the appropriation’s missing duration. Absent evidence of

legislative intent to the contrary, a specific reference “to an authorization act which provides that

appropriations made pursuant thereto shall remain available for longer than 1 year” might operate

“to incorporate the provisions of the authorizing act into the provisions of the appropriation.”161

GAO has considered such incorporation by reference “sufficient to overcome the implication of

fiscal year availability.”162

This approach to imputing the duration of an authorization of appropriations to a later

appropriation that specifically references the authorizing statute may not always align with

congressional intent, a point emphasized by the House Appropriations Committee in 1965. A

House-drafted supplemental appropriations measure carried a “new general provision” that would

have the effect of limiting the time period within which the bill’s appropriations could be

obligated. The new general provision stated that “[n]o part of any appropriation contained in this

Act shall remain available for obligation beyond the current fiscal year unless expressly so

provided herein.”163 The Committee recommended the provision by noting varying ways in which

authorizations of appropriations addressed duration.164 “The result” of this perceived

§ 1301(c)); see also A-19557, 7 Comp. Gen. 153, 155 (Aug. 26, 1927) (appropriation for the construction of a comfort

station in the Lincoln Memorial that lacked a stated duration was available for obligation for one fiscal year only as the

appropriation did not fit any exception to the rule used to determine whether an appropriation is permanent or available

continuously).

157 See U.S. Election Assistance Comm’n—Application of Account Closing Law to Election Security Grants Awarded

and Disbursed to States, B-331892, 2020 WL 6798922, at *1 n.2 (Comp. Gen. Nov. 19, 2020) (“Because the amounts

appropriated in FY 2018 and 2020 were provided in annual appropriations acts and the acts did not specify that such

amounts were to be available for obligation for more than one fiscal year, such amounts were available for obligation

only during the fiscal year in which they were appropriated.”).

158 See, e.g., Maine Cmty. Health Options v. United States, 140 S. Ct. 1308, 1319 (2020).

159 See Adm’r, Hous. & Home Fin. Agency, B-145276, 45 Comp. Gen. 236, 237 (Nov. 5, 1965) (interpreting

appropriation for “loans as authorized by section 3 of the Urban Mass Transportation Act of 1964 (78 Stat. 302), $

5,000,000”).

160 Consumer Prod. Safety Comm’n—Period of Availability & Permissible Uses of Grant Program Appropriations, B319734, 2010 WL 2930065, at *3 (Comp. Gen. July 26, 2010) (explaining that an appropriation’s reference to an

authorizing statute “more specifically definin[ed] the purpose for which the $2 million is available”).

161 Adm’r, Hous. & Home Fin. Agency, 45 Comp. Gen. at 237; cf. B-145153, 45 Comp. Gen. 508, 510 (Feb. 18, 1966)

(concluding that an appropriation with no stated duration constituted one-year funds, even though made for a program

for which no-year funds were authorized, because the regular appropriations act lacked “specific reference” to the

authorizing statute).

162 Adm’r, Hous. & Home Fin. Agency, 45 Comp. Gen. at 237.

163 See H.R. REP. NO. 89-1162, at 54 (1965). Congress later enacted the provision into law. See Supplemental

Appropriation Act, 1966, Pub. L. No. 89-309, § 1201, 79 Stat. 1133, 1153 (1965).

164 See H.R. REP. NO. 89-1162, at 54 (1965) (“There has been no unbroken current of congressional consistency in

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inconsistency, the Committee continued, “has been occasional confusion, more frequent

uncertainty, and, sometimes, ‘no-year availability’ when the Committee thought, from the terms

of the budget and appropriation bill language, that a one-year appropriation was being made.”165

The purpose of the new provision was to “provide control” of budget authority duration “wholly

within the language of the Act in which the appropriation is carried.”166 If an act included the new

general provision, the reader could determine the duration of budget authority by looking to the

regular appropriations act alone, without having to consider potential interactions between the

appropriation and its corresponding authorization.167

Most modern-day regular appropriations acts include a similar provision, directing that the act’s

appropriations do not remain available beyond the fiscal year covered by the appropriations act

unless the act expressly provides otherwise.168 When a regular appropriations act includes this

provision and makes an appropriation with no stated duration, the appropriation is available for

obligation for the current fiscal year only. The terms of particular appropriations are read in the

context of the statute in which they appear.169 Thus, while a particular appropriation (e.g., the

principal clause of an unnumbered paragraph) might lack a statement of duration, the

appropriation is read in context with other parts of the act, including a general provision that

states that no part of any appropriation provided in the act remains available for obligation

beyond the current fiscal year unless the act expressly provides a longer period of availability.170

This one-year availability applies even if the appropriation specifically references a statute that

authorizes appropriations of greater duration.171 In that case, the authorizing statute contemplates

(for example) a no-year duration, and the appropriations act states a one-year duration. As the last

enacted of the two statutes, the appropriations act will likely control and specify the

appropriation’s duration.172

Duration’s Effect on Agency Obligations

Perhaps the more important question posed by the duration of an appropriation is the effect that

duration has on an agency’s ability to use appropriated amounts to meet its expenses. An

appropriation’s period of availability provides that the amounts are “to remain available” until a

structuring the sterotyped [sic] appropriation authorization sections of basic legislative enactments.”).

165 Id. For example, in 1963, the House Appropriations Committee wrote that it was “astonished to learn” that the

Department of Health, Education, and Welfare viewed a particular appropriation, which had no stated duration but was

made pursuant to a no-year authorization, as being available for obligation on a no-year basis. See H.R. Rep. No. 881040, at 55–56 (1963) (urging revisions or updates to the predecessor statute of 31 U.S.C. § 1301(c) “to make its scope

and meaning crystal clear and perhaps update it as may otherwise appear desireable”).

166 H.R. REP. NO. 89-1162, at 54 (1965).

167 See id.

168 See, e.g., Further Consolidated Appropriations Act, 2020, Pub. L. No. 116-94, Div. A., tit. V, § 502 133 Stat. 2534,

2605 (2019) (“No part of any appropriation contained in this Act shall remain available for obligation beyond the

current fiscal year unless expressly so provided herein.”).

169 See Robinson v. Shell Oil Co., 519 U.S. 337, 341 (1997) (“The plainness or ambiguity of statutory language is

determined by reference to the language itself, the specific context in which that language is used, and the broader

context of the statute as a whole.”).

170 Id.

171 See Fed. Home Loan Bank Bd., B-149270, 1971 WL 4607, at *2–3 (Comp. Gen. June 23, 1971).

172 Consumer Prod. Safety Comm’n—Period of Availability & Permissible Uses of Grant Program Appropriations, B319734, 2010 WL 2930065, at *3 (Comp. Gen. July 26, 2010) (relying on the “fundamental principle of statutory

construction that when two laws are in irreconcilable conflict, the later enactment of Congress takes precedence over

the earlier” to determine an appropriation’s period of availability).

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fixed date or indefinitely. This limitation is substantially more complex than a mere deadline for

obligating federal funds. Rather, for certain appropriations, a provision of permanent law, the socalled “time statute,”173 requires an agency to consider the nature of the expenses or contracts that

it proposes to fund from a given appropriation, to determine whether, as a temporal matter, the

appropriation is available for the expense or contract.

The time statute originated in a provision enacted in 1870 to address the Civil War’s fiscal

effects.174 As it does today, Congress at that time appropriated funds for the general support of the

government, in part, on an annual basis.175 According to Senator John Sherman, those annually

voted sums, more than $111 million in FY1870, were “all that was required really for the

expenses of the Government in the opinion of Congress.”176 However, though prior statutes

generally stated that annually appropriated amounts were for the “service” of a given fiscal

year,177 Congress was understood to have given agencies some leeway in retaining, year to year,

the unexpended balances of prior-year appropriations.178 At the end of one fiscal year the

unexpended balance of such “old” appropriations (i.e., those made in a prior fiscal year’s

appropriations act) were understood to potentially augment the agency’s “new” appropriations

(i.e., those made for the current fiscal year).179 By FY1870, according to Senator Sherman funds

had thus accumulated so that federal agencies had available to them remaining, prior fiscal year

appropriations of more than $102 million, on top of the $111 million amount that Congress had

appropriated for that fiscal year.180 In the opinion of at least some Members, this perceived

flexibility undermined Congress’s control over agency spending.181

173 See 31 U.S.C. § 1502(a).

174 See, e.g., CONG. GLOBE, 41st Cong., 2nd Sess. 3328 (May 10, 1870) (statement of Sen. Sherman) (noting effects that

had “sprung up only since the war”); see also Law of July 12, 1870, ch. 251, 16 Stat. 230, 251.

175 Then as now, Congress also funded government programs using permanent appropriations. See, e.g., Law of March

3, 1849, ch. 129, 9 Stat. 414, 414–15 (permanent appropriation for paying compensation to military service members

for the loss of a horse during military service).

176 CONG. GLOBE, 41st Cong., 2nd Sess. 3328 (statement of Sen. Sherman) (referring to this sum as amount

appropriated “[l]ast year”).

177 For example, GAO has stated on a number of occasions that the bona fide needs rule has existed since 1789. See,

e.g., B-235678, 1990 WL 278336, at *2 (Comp. Gen. July 30, 1990) (stating that the rule “initially appeared in 1789”);

see also infra notes 192–218 and accompanying text (discussing bona fide needs rule). This statement appears to refer

to language in the first appropriations act enacted under the Constitution, which appropriated sums “for the service of

the present year.” Law of September 29, 1789, ch. 23, 1 Stat. 95, 95.

178 Cf. Law of March 3, 1795, ch. 45, 1 Stat. 433, 437 (directing return to the Treasury’s “Surplus Fund” of the balances

of prior-year appropriations that remained unexpended more than two calendar years after the end of the year in which

the appropriation was made but only if the Secretary of the Treasury determined that the object of the appropriation had

been fully satisfied).

179 See, e.g., Unexpended Balance of Appropriation, 7 Op. Att’y Gen. 14, 15 (1856) (stating that “as a general rule,

where a contract or other claim on the Government is a continuous one, and still current, there the balance remaining of

the appropriation made in one year for such service laps over into the following year, and is continuously applicable to

the same object”); 2 Op. Att’y Gen.442, 445 (1831) (explaining that “unexpended” meant “unapplied to the objects of

the appropriation”); CONG. GLOBE, 41st Cong., 2nd Sess. 3328 (statement of Sen. Sherman) (stating that the “lapping

over” of funds resulted in the “fund to be drawn upon” being nearly “twice as large” as the amount appropriated in a

fiscal year); see also Wilder v. United States, 16 Ct. Cl. 528, 543 (1880) (“Formerly, as we have said, but slight

attempts were made to keep these accounts of the government by fiscal years.”).

180 See CONG. GLOBE, 41st Cong., 2nd Sess. 3328 (statement of Sen. Sherman) (noting that funds had thus accumulated

“during and since the war”).

181 See id. at 3330 (statement of Sen. Trumbull) (arguing that “if we are to have any control over the disbursements

made by the Government, . . . the money should not be left thus at loose ends, hundreds of millions appropriated and

unused which these bureaus and Departments may continue to use as they may find occasion for”); cf. id. at 3328

(statement of Sen. Sherman) (urging adoption of an amendment that would have the effect of starting each year “with

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Congress’s 1870 amendment required that amounts appropriated in a regular appropriations act

specifically for the service of that year be used only to pay expenses incurred in that year or to

fulfill contracts properly made for that year.182 The 1870 amendment directed the return to the

Treasury of any balances not needed to pay such expenses.183 The time statute of today contains

substantially the same directive: “The balance of an appropriation or fund limited for obligation

to a definite period is available only for payment of expenses properly incurred during the period

of availability or to complete contracts properly made within that period of availability and

obligated consistent with section 1501 of this title.”184

The time statute confines use of a fixed-period appropriation to obligations incurred during the

appropriation’s period of availability.185 After the end of that period (i.e., after September 30 of a

given fiscal year for one-year funds appropriated for that fiscal year), the appropriation is said to

“expire” and cannot be used to incur new obligations.186 Expired appropriations are available only

to record or adjust obligations that were properly chargeable to the appropriation or to liquidate

such obligations.187 Suppose, for example, that an administrative panel resolves a labor dispute by

ordering an agency to provide uniforms or uniform allowances to designated employees.188 Under

the statutory framework, this order establishes an obligation.189 If the agency failed to record that

obligation against an appropriation before the appropriation expired, it may use the expired

appropriation to reflect the obligation that was actually incurred during its period of

availability.190 The agency may not use the expired appropriation to incur a new obligation.191 It

new books” by allowing use of “unpaid and old unexpended balances” only to pay existing liabilities incurred during

the prior year).

182 Law of July 12, 1870, ch. 251, 16 Stat. 230, 251; see also 13 Op. Att’y Gen. 288, 292 (1873) (“Congress has the

right to limit its appropriations to particular times as well as to particular objects, and when it has clearly done so, its

will expressed in the law should be implicitly followed.”).

183 Law of July 12, 1870, ch. 251, 16 Stat. 230, 251. At that time, remaining balances of appropriations were to be

returned two years after the end of the fiscal year for which the appropriation was made to the extent not needed to

settle accounts. See id.

184 31 U.S.C. § 1502(a).

185 By its terms, the time statute, which references appropriations or funds “limited for obligation to a definite period,”

id., does not apply to no-year appropriations, which are available for an “unlimited period of time.” Commodity

Futures Trading Comm’n—Recording of Obligations for Multiple-Year Leases, B327242, 2016 WL 423697, at *6 n.9

(Comp. Gen. Feb. 4, 2016) (noting that no-year funds are “available for the needs of any fiscal year”).

186 See Continued Availability of Expired Appropriation for Additional Project Phases, B-286929, 2001 WL 717355, at

*4 (Comp. Gen. Apr. 25, 2001) (stating that nothing “in the bona fide needs rule suggests that expired appropriations

may be used for a project for which a valid obligation was not incurred prior to expiration” and that once “the

obligational period has expired, new obligations must be charged to current funds even if a continuing need arose

during the prior period.”).

187 31 U.S.C. § 1553(a).

188 Nat’l Guard—Fiscal Year to Be Charged for Mandated Unif. Purchases (Reconsideration), B-265901, 1997 WL

639970, at *4–5 (Comp. Gen. Oct. 14, 1997).

189 Id. at *4–6 (explaining that the “the duty to either provide uniforms or pay a uniform allowance arose when the

National Guard was legally required to provide those uniforms or pay allowances” and concluding that this requirement

arose upon issuance of a Federal Service Impasses Panel (FSIP) order despite later agency action disapproving of the

order where the disapproval exceeded the agency’s authority to not comply with FSIP orders).

190 See Nat’l Lab. Rels. Bd.—Improper Obligation of Severable Servs. Cont., B-308026, 2006 WL 2673583, at *4

(Comp. Gen. Sept. 14, 2006) (“Agencies are required to record against expired appropriations obligations previously

incurred that were not recorded when the obligation was incurred and to adjust recorded amounts to reflect the amount

actually incurred.”).

191 Cf. Impoundment Control Act—Withholding of Funds through their Date of Expiration, B-330330.1, 2018 WL

6445177, at *4 (Comp. Gen. Dec. 10, 2018) (“[T]he permissible uses of an expired appropriation relate back to

obligations incurred during the period of availability of the funds and do not constitute new obligations themselves.”).

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may not, for example, enter into a contract for the first time on October 14 of a given year and

record the obligations thus assumed against the unobligated balances of an appropriation that

expired two weeks earlier, on September 30.

Under the time statute, however, it is not enough for an agency to incur an obligation during an

appropriation’s period of availability.192 The time statute refers to particular types of expenses and

contracts as permissible of fixed-period appropriations—those expenses “properly incurred” or

those contracts “properly made” during the appropriation’s period of availability.193 GAO has

derived from the time statute a “bona fide needs rule”: “contracts executed and supported under

authority of fiscal year appropriations can only be made within the period that such funds are

available for obligation and may be made only to meet a bona fide need arising within that

period.”194 The bona fide needs rule generally applies to all federal government activities carried

out with fixed-period appropriations,195 whether those activities occur by way of a contract with a

nonfederal party,196 an interagency agreement,197 a cooperative agreement,198 or a grant.199

The concept of severability is key to deciding whether an expense incurred or contract formed

using a particular fixed-period appropriation meets a need that arises during the period in which

the appropriation was available for obligation—for example, whether funds available until

September 30, 2021, are used to meet a need that arises on or before that date. Services are either

severable or nonseverable, and the nature of the work funded determines which category a service

fits.200

A severable service meets a continuing or recurring need of an agency.201 Though an agency

might enter into a single contract for a year’s worth of such services, performance of the services

192 See B-130815, 37 Comp. Gen. 155, 158 (Sept. 3, 1957) (arguing that if the time statute were “construed to authorize

the use of unexpended balances of appropriations specifically made for the service of a particular fiscal year for the

purchase of supplies, etc., for the service of a subsequent fiscal year, provided that a contract therefor should be

entered into during the fiscal year for which the appropriation was made, the effect would be to practically nullify the

object of the statute” (emphasis added)); cf. Matter of Expired Funds & Interagency Agreements Between GovWorks

& the Dep’t of Def., B-308944, 2007 WL 2120292, at *9 (Comp. Gen. July 17, 2007) (examining an agency’s use of

non-Economy Act interagency agreements to “parking” or “banking” fixed-period appropriations with another agency

in a manner that would effectively extend the obligational availability of those funds).

193 See, e.g., Gen. Servs. Admin.—Availability of No-Year Appropriations for a Modification of an Interagency Ord.,

B-326945, 2015 WL 5674965, at *2 (Comp. Gen. Sept. 28, 2015) (“An important word in this statute is ‘properly’:

expenses ‘properly incurred’ or contracts ‘properly made.’” (quoting 31 U.S.C. § 1502(a)).

194 In the Matter of Storage Tech. Corp., B-188399, 56 Comp. Gen. 860, 861 (Aug. 4, 1977).

195 U.S. Dep’t of Educ.’s Use of Fiscal Year Appropriations to Award Multiple Year Grants, B-289801, 2002 WL

31950147, at *4 (Comp. Gen. Dec. 30, 2002).

196 U.S. Small Bus. Admin.—Indefinite-Delivery Indefinite-Quantity Cont. Guaranteed Minimum, B-321640, 2011WL

4376308, at *4 (Comp. Gen. Sept. 19, 2011) (contract to procure computer hardware and software).

197 Transfer of Fiscal Year 2003 Funds from the Library of Congress to the Office of the Architect of the Capitol, B302760, 2004 WL 1146276, at *7 (Comp. Gen. May 17, 2004) (interagency agreement between the Library of

Congress and the Architect of the Capitol for the Architect to redesign and renovate a Library building loading dock).

198 See Dep’t of Agric.—Coop. Agreement for Use of Aircraft, B-308010, 2007 WL 1246850, at *4 (Comp. Gen. Apr.

20, 2007) (cooperative agreement between the U.S. Department of Agriculture and the owner of an airplane leasing the

airplane to the Department for use in its wildlife predation program).

199 See U.S. Dep’t of Educ.’s Use of Fiscal Year Appropriations to Award Multiple Year Grants, 2002 WL 31950147,

at *4.

200 See Funding for Air Force Cost Plus Fixed Fee Level of Effort Cont., B-277165, 2000 WL 267527, at *3 (Comp.

Gen. Jan. 10, 2000) (“With respect to severability issues, it is the nature of the work being performed, not the contract

type, that must be taken into account in reaching a judgment on that issue.”).

201 B-235086, 1991 WL 122260, at *2 (Comp. Gen. Apr. 24, 1991).

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is able to be separated into independent components.202 The agency derives value when each such

component is performed.203 For example, gardening or window-washing services benefit the

agency each time the services are performed.204 The agency must fund these components using a

fixed-period appropriation that is current—that is, still available for obligation—when the

component is performed.205 Thus, an agency generally may not obligate a fixed-period

appropriation for the cost of severable services that will be performed after the end of the

appropriation’s period of availability.206

Nonseverable services are not capable of being divided in the same manner as severable services.

As a general matter, a nonseverable service calls for the creation of an end product.207 While the

agency or its contractor might develop that end product in stages or phases, unlike with a

severable service the agency derives no independent benefit from the completion of those

preliminary stages or phases.208 The agency’s need is instead met only when the entire task is

performed.209 For example, an agency needing a new data retrieval system will not see that need

met until the system is operational—a half-completed, nonfunctioning system does not meet the

agency’s needs.210 Unlike severable services, so long as a need for the nonseverable service exists

and an obligation is incurred when a fixed-period appropriation is available for obligation, an

agency may use the appropriation to pay for work performed in a later fiscal year, even after the

appropriation expires.211 The work that will be performed in the later fiscal year is considered

“not severable from the portion performed” in the current fiscal year.212

Obligations for federal assistance programs, which take the form of a grant or cooperative

agreement, present a special type of bona fide needs analysis. When an agency makes a grant or

cooperative agreement, it awards funds to a third party recipient for the recipient’s use in carrying

202 Incremental Funding of U.S. Fish and Wildlife Serv. Research Work Orders, B-240264, 73 Comp. Gen. 77, 79 (Feb.

7, 1994).

203 Incremental Funding of Multiyear Contracts, B-241415, 71 Comp. Gen. 428, 430 (June 8, 1992).

204 Dep’t of Health and Human Servs.—Multiyear Contracting and the Bona Fide Needs Rule, B-322455, 2013 WL

4398954, at *5 & n.13 (Comp. Gen. Aug. 16, 2013) (noting that such tasks “confer the full benefit on the agency every

time they are performed”); see also Acumenics Rsch. & Tech., Inc.—Cont. Extension, B-224702, 1987 WL 102680, at

*9 (Comp. Gen. Aug. 5, 1987) (stating that “essentially clerical services” are “severable in nature”).

205 B-235678, 1990 WL 278336, at *3 (Comp. Gen. July 30, 1980).

206 See Severable Servs. Conts., B-317636, 2009 WL 1140240, at *3 (Comp. Gen. Apr. 21, 2009) (“[A]n agency using

a multiple year appropriation would not violate the bona fide needs rule if it enters into a severable services contract for

more than 1 year as long as the period of contract performance does not exceed the period of availability of the multiple

year appropriation.”).

207 See Fin. Crimes Enf’t Network—Obligations Under a Cost-Reimbursement, Nonseverable Servs. Cont., B-317139,

2009 WL 1621304, at *4 (Comp. Gen. June 1, 2009).

208 Cf. Incremental Funding of Multiyear Conts., 71 Comp. Gen. at 430 (“Although interim reports were to be provided

during the progress of the study, such reports were merely informational and not independent, stand-alone work

products.”).

209 Transfer of Fiscal Year 2003 Funds from the Library of Congress to the Office of the Architect of the Capitol, B302760, 2004 WL 1146276, at *5 n.9 (Comp. Gen. May 17, 2004) (“Because the Library would receive no benefit if

the Architect were not to complete construction of the Madison building loading dock, the interagency agreement

between the Architect and the Library for that work represents a single, nonseverable undertaking.”).

210 Obligations Under a Cost-Reimbursement, Nonseverable Servs. Cont., 2009 WL 1621304, at *4 (categorizing a

contract for a data retrieval system as nonseverable because the contract called for delivery of a “defined end product”).

211 Independent Statutory Authority of Consumer Product Safety Comm’n to Enter Interagency Agreements, B-289380,

2002 WL 31628522, at *2 (Comp. Gen. July 31, 2002).

212 Acumenics Rsch. & Tech., Inc.—Cont. Extension, B-224702, 1987 WL 102680, at *9 (Comp. Gen. Aug. 5, 1987).

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out a stated public purpose.213 The funds recipient will then later use those funds to cover the cost

of goods and services needed to carry out that public purpose.

In reviewing agency obligations for federal assistance programs, GAO once considered whether

the uses to which a recipient dedicated federal funds resembled severable services, which GAO

opined could be supported only by grant or cooperative agreements awards made on an annual

basis.214 More recent decisions, though, draw a distinction between the agency’s use of

appropriated funds to make a grant or cooperative agreement award and the recipient’s

subsequent use of the funds. The agency’s need under a financial assistance program is to extend

funds to a recipient, and that need is met when the agency incurs an obligation to the recipient

under a grant or cooperative agreement.215 For purposes of the bona fide needs rule, it “does not

matter” when the recipient, in turn, uses the funds to carry out the stated public purpose.216 Thus,

so far as the time statute is concerned, and assuming an agency has the need to make grants in the

fiscal year when an appropriation is still current, an agency may obligate a fixed-period

appropriation to award funds that the recipient could not first use until the following fiscal year217

or to make a multiple-year grant award.218

Determining Effects on Substantive Law

The chief function of a regular appropriations act is the granting of budget authority.219 This focus

results in part from chamber rules. Since the mid-1800s chamber rules have encouraged Members

to separate decisions of whether and how Congress should authorize particular agency functions

from decisions of whether Congress should fund such authorized functions.220 More specifically,

chamber rules generally prohibit “legislation on appropriations measures.”221 For example, it is

213 An agency is to enter a cooperative agreement with a funds recipient when the agency expects that it will be

substantially involved in carrying out the award. An agency is to enter a grant agreement when it does not expect to be

substantially involved in carrying out the award. See 31 U.S.C. §§ 6304, 6305 (setting criteria for use of a grant

agreement or a cooperative agreement).

214 B-217722, 64 Comp. Gen. 359, 364 (Mar. 18, 1985) (examining a National Institutes of Health program to

“stimulate particular kinds of research that will be needed year-after-year” but which did not “contemplate a required

outcome or product” and concluding that NIH could fund grant awards on an annual basis only).

215 U.S. Dep’t of Educ.’s Use of Fiscal Year Appropriations to Award Multiple Year Grants, B-289801, 2002 WL

31950147, at *4 (Comp. Gen. Dec. 30, 2002); see also Small Bus. Admin.—Questions About Funding of Small Bus.

Dev. Centers, B-229873, 1988 WL 228272, at *4 (Comp. Gen. Nov. 29, 1988).

216 See Questions About Funding of Small Bus. Dev. Centers, B-229873, 1988 WL 228272, at *4.

217 See id. at *2, 4 (obligation of one-year funds on the last day of their temporal availability).

218 U.S. Dep’t of Educ.’s Use of Fiscal Year Appropriations to Award Multiple Year Grants, B-289801, 2002 WL

31950147, at *4 (noting that though the statute authorizing a particular grant program did not “provide explicit

authority to award multiple year grants” by providing five-year grants the Department of Education (ED) would help

ensure the continuity of student services “which the programs legislation seeks to provide” and that ED fulfilled “its

bona fide need under this program when it awards these 5-year grants”). The statute authorizing a financial assistance

program may, however, impose limits on the duration of a grant or cooperative agreement. See Dep’t of Educ.—Grant

Extensions, B-303845, 2006 WL 39269, at *3, 5 (Comp. Gen. Jan. 3, 2006) (concluding that because the authorizing

statute or related regulations permitted ED to award grants to certain educational institutions for a period of up to five

academic years ED could not extend a five-year award for an additional four years).

219 See GAO GLOSSARY, supra note 1, at 13.

220 See Saturno, Limitations in Appropriations Measures, supra note 16, at 1 (“Under the rules of the House and Senate,

legislative provisions and appropriations for purposes not authorized by law typically may not be included in

appropriations measures. These rules were formally established in both chambers during the mid-1800s to address

concerns with delays in enacting appropriations due to the inclusion of extraneous legislative matters that tended to

provoke controversy.”).

221 Id. Chamber rules relating to legislation on appropriations apply to general appropriations measures, which include,

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generally not in order for an Appropriations Committee to report a regular appropriations bill that

includes a provision expanding the authority granted to an agency under other law, and one

Member may raise a point of order if another Member offers such a provision as an amendment

to a regular appropriations bill.222

So far as chamber rules are concerned, Congress in most cases is to make “money” and “policy”

decisions separately, the former in appropriations acts and the latter in other statutes.223 Even so,

regular appropriations acts commonly include matter that is alleged to affect what the courts often

label as “substantive law.” For example, an agency or litigant might cast Congress’s decision to

fund or not fund a particular obligation or activity as having changed the substantive law

underlying that obligation or activity. Likewise, provisos or general provisions are often said to

effect changes in substantive law.

To assess claims that a provision in a regular appropriations act alters substantive law, courts

apply legal presumptions about a provision’s intended meaning. These presumptions are born of

courts’ understanding of the purpose and procedure behind regular appropriations acts. The

presumptions address two questions: the effect, if any, of a provision on substantive law, and the

duration of any such effect.

Effects of Appropriations Act on Substantive Law

Case law interpreting the effect of regular appropriations act matter on “substantive law” typically

does not expressly define that phrase. In general terms, substantive law means provisions of law

fixing rights, duties, or obligations.224 The phrase’s use in the appropriations context is similar to

this general definition. When courts refer to the effect of a regular appropriations act on

“substantive law,” the courts mean (for example) those provisions of statute authorizing agency

but are not limited to, regular appropriations measures. See id. at 1 nn. 4, 9 (explaining that in the House “general

appropriations bills are the annual appropriations acts (or any combination thereof) and any supplemental

appropriations acts that cover more than one agency” while in the Senate such measures include regular and

supplemental appropriations bills as well as continuing appropriations bills that cover more than one agency or

purpose).

222 See id. at 14 (“Limitations cannot expand the discretion previously provided in law to an official or agency to

include actions not currently authorized, even if those actions are not explicitly prohibited by existing law.”).

223 See Andrus v. Sierra Club, 442 U.S. 347, 361 (1979) (stating that the distinction in chamber rules between

“legislation” and “appropriations” encourages “program and financial matters” to be “considered independently of one

another. This division of labor is intended to enable the Appropriations Committees to concentrate on financial issues

and to prevent them from trespassing on substantive legislation.” (internal quotation marks omitted)).

224 See, e.g., Substantive Law, BLACK’S LAW DICTIONARY (11th ed. 2019) (“The part of the law that creates, defines,

and regulates the rights, duties, and powers of parties.”).

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functions,225 imposing duties on agencies,226 or creating rights in third parties.227 Most of the time,

Congress establishes substantive law by enacting a statute other than an appropriations act.228

When the question is whether matter in an appropriations act affects provisions of statute

establishing substantive law, courts employ presumptions that are born of courts’ understanding

of the purpose and procedure behind regular appropriations acts.229 The Supreme Court has thus

distinguished between “substantive enactments and appropriations measures.”230 Both are “Acts

of Congress,” but appropriations acts are understood to have “the limited and specific purpose of

providing funds for authorized programs.”231 It is also true, though, that Congress regularly alters

substantive law in appropriations acts,232 and nothing in the Constitution requires it to make only

“money” decisions in appropriations acts.233

225 See, e.g., United States v. Burton, 888 F.2d 682, 687 (10th Cir. 1989) (per curiam) (noting that while provisions of

permanent law allowed the General Services Administration (GSA) to appoint police officers to patrol federal property

only if the federal government had acquired criminal jurisdiction over that property an appropriations act granted GSA

additional authority to appoint police officers even as to federal property for which no such criminal jurisdiction had

been acquired); Donovan v. Carolina Stalite Co., 734 F.2d 1547, 1558 (D.C. Cir. 1984) (considering the effect of a

limitation on funding contained in an appropriations act on the Department of Labor’s “statutory basis for enforcement

litigation” under the Federal Mine Safety and Health Act).

226 See, e.g., City of Chicago v. U.S. Dep’t of Treasury, Bureau of Alcohol, Tobacco & Firearms, 423 F.3d 777, 781

(7th Cir. 2005) (concluding that a proviso in a regular appropriations act amounted to a “change in substantive FOIA

law in that it exempts from disclosure data previously available to the public under FOIA”); Pontarelli v. U.S. Dep’t of

the Treasury, 285 F.3d 216, 231 (3d Cir. 2002) (concluding that a proviso barring use of a Bureau of Alcohol, Tobacco,

and Firearms (ATF) funds to investigate or act upon an application for relief from firearms disabilities prevented ATF

from denying such applications and thus prevented federal courts from reviewing applications as an ATF denial was

required for judicial review).

227 See, e.g., Kane Cty. v. United States, 136 Fed. Cl. 644, 649 (2018) (examining whether a regular appropriations act

affected the federal government’s “substantive obligation” under preexisting law to make payments to local

governments to compensate for tax revenue lost on account of tax-exempt federal lands within the local governments’

territorial jurisdiction).

228 Courts decide whether matter in an appropriations act alters preexisting substantive law using the same

presumptions, detailed below, whether or not the substantive law was established in an appropriations act or in another

statute. See, e.g., Ctr. for Investigative Reporting v. U.S. Dep’t of Just., 982 F.3d 668, 681 (9th Cir. 2020) (finding that

general provisions contained in acts making appropriations for FY2010 and FY2012 repealed general provisions in acts

making appropriations for FY2005 and FY2008 concerning disclosure of information from ATF’s Firearms Tracing

System); Cherokee Nation v. Bernhardt, 936 F.3d 1142, 1156 n.16 (10th Cir. 2019) (concluding that a proviso in a

1999 regular appropriations act demonstrated Congress’s clear intent to modify substantive law contained in a proviso

of a 1992 appropriations act concerning the Cherokee Nation’s role in decisions to take into trust land located within

the original boundaries of the Cherokee territory in Oklahoma).

229 United States v. Vulte, 233 U.S. 509, 515 (1914) (noting that the presumption against substantive law changes in an

appropriations act “follows naturally from the nature of appropriation bills” and “is fortified by the rules of the Senate

and House of Representatives”).

230 Tennessee Valley Auth. v. Hill, 437 U.S. 153, 190 (1978).

231 Id. (internal quotation marks omitted).

232 See Demby v. Schweiker, 671 F.2d 507, 512 (D.C. Cir. 1981) (MacKinnon, J., announcing judgment of the court)

(stating that while such repeals “are infrequent” they occur in “every session” of Congress); see also United States v.

Will, 449 U.S. 200, 222 (1980) (“[W]hen Congress desires to suspend or repeal a statute in force, there can be no doubt

that it could accomplish its purpose by an amendment to an appropriation bill, or otherwise.” (internal quotation marks

omitted)).

233 Cf. The Last Best Beef, LLC v. Dudas, 506 F.3d 333, 340 (4th Cir. 2007) (“What may seem inadvisable on the part

of Congress is not unconstitutional.”) (refusing to adopt a “a per se rule that Congress cannot amend or suspend prior

legislation through appropriations riders” notwithstanding the district court’s concern that use of an appropriations act

to prevent one phrase from being trademarked could create an allegedly unduly complex trademark scheme).

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Given this understanding of the normally limited function of matter in an appropriations statute,

courts have developed a “very strong presumption” against finding that Congress changed

substantive law by means of an appropriations act.234 Congress “may amend substantive law in an

appropriations statute, as long as it does so clearly.”235 Thus, courts will find that matter in an

appropriations act alters substantive law when that outcome is the only reasonable interpretation

of the appropriations act.236 Courts have justified this reluctance to find substantive law changes

in appropriations acts by referring to the perceived unpredictability that a less-demanding

standard would yield.237

Most frequently, courts consider whether Congress’s decision to appropriate, or not appropriate,

funds for a given purpose itself constitutes a change in law. Thus, when substantive law fixes a

definite salary for an officer or employee,238 or directs an agency to make payments to health

insurers,239 or establishes protections for wildlife that would prevent an agency action,240 a litigant

might contend that Congress’s later decision of whether to fund these obligations or activities

amounts to a change in preexisting law. If Congress funds less than the amount fixed in law for an

employee’s salary,241 or bars the use of funds for payments,242 or allegedly continues to fund a

project that substantive law would otherwise prohibit,243 the question is whether Congress has

thereby altered the employee’s salary, changed the terms of the government’s payment obligation,

or carved out an exception to federal environmental laws.

The answer to such questions largely depends on the language of the appropriation and its

relation to preexisting substantive law. However, a few points emerge from the case law. If

substantive law fixes an obligation, Congress later choosing not to appropriate enough funds to

234 Bldg. & Const. Trades Dep’t, AFL-CIO v. Martin, 961 F.2d 269, 273 (D.C. Cir. 1992); see also Hill, 437 U.S. at

190 (noting that the rule disfavoring implied repeals applies “with even greater force when the claimed repeal rests

solely on an Appropriations Act” (emphasis in original)).

235 Robertson v. Seattle Audubon Soc., 503 U.S. 429, 440 (1992); see also Calloway v. District of Columbia, 216 F.3d

1, 9 (D.C. Cir. 2000) (framing the relevant inquiry as whether Congress “unambiguously expressed an intent” to

change substantive law by means of an appropriations act).

236 United States v. Vulte, 233 U.S. 509, 515 (1914) (explaining that an appropriations act modifies substantive law

where the language of the act “admits of no other reasonable interpretation” than modification (internal quotation

marks omitted)).

237 See, e.g., Hill, 437 U.S at 190–91 (justifying the presumption against substantive law changes in appropriations acts

by claiming the presumption relieves Members of Congress of the need to “review exhaustively the background of

every authorization before voting on an appropriation” to identify potential implied repeals); Zbaraz v. Quern, 596 F.2d

196, 199 (7th Cir. 1979) (raising the concern of “confusing and disruptive annual changes in the substantive law”).

238 United States v. Langston, 118 U.S. 389, 392 (1886) (examining Revised Statutes provision fixing salary of the

minister resident and consul general to Haiti).

239 Maine Cmty. Health Options v. United States, 140 S. Ct. 1308, 1320 (2020) (considering provision in the

Affordable Care Act directing the Secretary of Health and Human Services to make payments to firms offering health

insurance in the individual and small group markets).

240 Hill, 437 U.S. at 190 (applying the Endangered Species Act to a dam construction project on the Little Tennessee

River that would probably jeopardize survival of an endangered species).

241 Langston, 118 U.S. at 393 (considering effect of appropriation of $5,000 for the salary of the minister resident and

consul general to Haiti where substantive law fixed the official’s salary at $7,500).

242 Maine Cmty. Health Options, 140 S. Ct. at 1323 (deciding whether limitation in a regular appropriations act that

barred use of the act’s funds to make payments to insurers suspended or repealed obligation created by a statutory

directive that such payments be made).

243 Hill, 437 U.S. at 164, 167, 170, 190–92 (reviewing whether a lump-sum appropriation, dedicated in part to

continued dam construction through committee report language, excepted the dam project from the Endangered Species

Act).

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meet the obligation, without express language repealing or modifying the obligation,244 leaves

substantive law unchanged.245 Likewise, if substantive law fixes an obligation, and Congress

thereafter includes in a regular appropriations act a limitation that prohibits use of appropriated

funds to pay the obligation, on its own the limitation will not suspend or repeal the obligation.246

When substantive law prohibits a particular agency action (e.g., the construction of a dam that

would probably jeopardize an endangered species), an appropriation that is subsequently enacted

and generally available for projects of that type will not alter the substantive-law impediment.247

In these cases, it is possible to interpret the appropriations act as not effecting repeal of the

substantive law requirement, and so courts will generally presume that Congress did not intend to

modify substantive law.248

Case law can serve as data points for distinguishing these types of bare appropriations decisions,

which do not affect substantive law, from appropriations act matter that suspends or repeals

substantive law. Suppose for example that during a fiscal year substantive law would otherwise

have the effect of obligating the government to pay an amount as compensation to a third party. If

Congress then appropriates a lesser amount and specifies that the amounts provided are “full

compensation” for debts that the government will subsequently incur,249 the appropriation

suspends or repeals the substantive law provisions.250 Congress may also suspend or repeal the

substantive law requirements by stating that they “shall not take effect.”251 Congress might limit

use of appropriated amounts to pay such compensation and specify that the limitation is made

“notwithstanding” the provisions of the particular substantive law.252 A court might conclude that

244 The Constitution may separately limit Congress’s authority to abrogate an already-incurred obligation. See, e.g.,

Cherokee Nation v. Leavitt, 543 U.S. 631, 646 (2005) (“A statute that retroactively repudiates the Government’s

contractual obligation may violate the Constitution.”); cf. Lynch v. United States, 292 U.S. 571, 580 (1934) (stating that

while the need for economy in 1933 was “great,” “Congress was without power to reduce expenditures by abrogating

contractual obligations of the United States. To abrogate contracts, in the attempt to lessen government expenditure,

would be not the practice of economy, but an act of repudiation.”).

245 See, e.g., Langston, 118 U.S. at 394 (“[A] statute fixing the annual salary of a public officer at a named sum, without

limitation as to time, should not be deemed abrogated or suspended by subsequent enactments which merely

appropriated a less amount for the services of that officer for particular fiscal years.”); cf. United States v. Will, 449

U.S. 200, 224 (1980) (explaining that because appropriations acts manifested congressional intent to rescind pay raises

the pay increases were not simply consigned “to the fiscal limbo of an account due but not payable” as would be the

case if Congress simply failed to appropriate sufficient funds to meet the pay raises).

246 See Maine Cmty. Health Options, 140 S. Ct. at 1324; see also City of Chicago v. U.S. Dep’t of Treasury, Bureau of

Alcohol, Tobacco & Firearms, 423 F.3d 777, 782 (7th Cir. 2005) (contrasting limitations in 2003 and 2004 regular

appropriations acts, which prohibited use of funds to disclose information without changing substantive disclosure law,

with matter in a 2005 regular appropriations act that contained “clear expressions of Congressional intent” to preclude

disclosure).

247 See Hill, 437 U.S. at 190 (“When voting on appropriations measures, legislators are entitled to operate under the

assumption that the funds will be devoted to purposes which are lawful and not for any purpose forbidden.”).

248 Maine Cmty. Health Options, 140 S. Ct. at 1324.

249 See United States v. Fisher, 109 U.S. 143, 145–46 (1883).

250 See Maine Cmty. Health Options, 140 S. Ct. at 1325 (explaining that such cases alter the terms upon which the

government will incur obligations before it begins incurring the obligations).

251 See United States v. Will, 449 U.S. 200, 222–24 (1980) (explaining that in four successive fiscal years Congress

used appropriations acts, including matter phrased only “in terms of limiting funds,” to rescind automatic pay

adjustments that federal justices and judges would otherwise receive under preexisting substantive law).

252 See United States v. Dickerson, 310 U.S. 554, 555, 561 (1940) (“We are of opinion that Congress intended in” an

appropriations act limitation “to suspend the enlistment allowance authorized” under substantive law); see also id. at

556–57 (recounting that earlier provisions of law covering four fiscal years stated that the substantive law formula was

“suspended” and that the appropriations act provisions in question continued this suspension).

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Congress has modified substantive law in an appropriation if Congress structures its appropriation

in a way that cannot be reconciled with how substantive law would impose an obligation.253

In these examples, it is not possible for a court to give effect to both the preexisting substantive

law and the appropriations act provision. For example, suppose preexisting substantive law would

determine the amount of an obligation to be $1,000, but Congress later appropriates $900 for the

obligation subsequently incurred and states this lesser amount shall be “full compensation.”254 In

that event, the Supreme Court has stated that a court cannot give effect to both provisions—it

“cannot say that” the sum appropriated (i.e., the $900) “shall not be in full compensation” and

allow, instead, the $1,000 amount prescribed in the substantive law provision.255 Where the only

reasonable interpretation of the appropriations act provision is one that results in the modification

of substantive law, a court will likely find that the appropriations act’s text overcomes the “very

strong presumption” that Congress did not intend to change substantive law when it passed the

appropriations act.256

Determining How Long a Provision Affects Substantive Law

As to these provisions affecting substantive law, a second question commonly follows: whether

the appropriations act provision responsible for a change in substantive law has effect beyond the

fiscal year covered by the appropriations act. As noted above, the permanence (of lack thereof) of

appropriations in a regular appropriations act can be determined by consulting a statutory rule of

construction in Title 31 of the U.S. Code and common general provisions that appear in regular

appropriations acts.257 However, strictly speaking these aids refer only to the duration of the act’s

appropriations, and thus do not directly answer the question of whether other matter in the act is

temporary or permanent.258

Instead, courts and agencies employ a legal presumption to decide whether matter in a regular

appropriations act is temporary or permanent.259 Courts have noted that the core subject matter of

a regular appropriations act, the appropriations themselves, are presumptively temporary. The

appropriations are assumed to “spend their power in the course of the year.”260 Courts rely on the

presumptively temporary nature of the appropriations to draw conclusions about legislative intent

for appropriations act matter more generally. On this reasoning, it would be “somewhat unusual”

253 See United States v. Mitchell, 109 U.S. 146, 150 (1883) (examining interaction between substantive law that would

fix an individual’s salary at $400 and prohibit the Department of Interior (Interior) from providing any further

emoluments or allowances and a later appropriations act that made $300 available for salaries and further sums for

Interior to allocate as additional compensation).

254 Fisher 109 U.S. at 145–46.

255 Id.

256 Bldg. & Const. Trades Dep’t, AFL-CIO v. Martin, 961 F.2d 269, 273 (D.C. Cir. 1992).

257 See supra “Determining Duration.”

258 See 31 U.S.C. § 1301(c) (referring to the permanence or continuous availability of an “appropriation in a regular,

annual appropriation law” (emphasis added)); see also Further Consolidated Appropriations Act, 2020, Pub. L. No.

116-94, Div. A., tit. V, § 502 133 Stat. 2534, 2605 (2019) (“No part of any appropriation contained in this Act shall

remain available for obligation beyond the current fiscal year unless expressly so provided herein.” (emphasis added));

cf. Smithsfork Grazing Ass’n v. Salazar, 564 F.3d 1210, 1216 (10th Cir. 2009) (noting the presumption of fiscal-year

duration in 31 U.S.C. § 1301(c) and holding that the “the same is true of specific provisions in an appropriations bill”

that do not themselves make appropriations).

259 United States v. Vulte, 233 U.S. 509, 515 (1914) (concluding that this presumption “follows naturally from the

nature of appropriation bills” and is “fortified by the rules of the Senate and House of Representatives” discouraging

legislation on appropriations).

260 United States v. Jarvis, 26 F. Cas. 587, 588 (D. Me. 1846).

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to “find engrafted upon an act making special and temporary appropriations” a “provision which

was to have a general and permanent application to all future appropriations.”261

To avoid drawing such an “unusual” conclusion, courts presume that whatever effect an

appropriations act provision has on substantive law exists only for the fiscal year covered by the

act.262 Accordingly, it is possible for a regular appropriations act to alter substantive law, but only

for the fiscal year.263 Put differently, the intent to alter substantive law might be clear, but the

intent to make that alteration permanent might not be clear.264 When such temporary alteration of

substantive law occurs, courts often say that the appropriations act has “suspended” conflicting

provisions of substantive law.265 Once that suspension ends, usually after the fiscal year for which

the relevant act makes appropriations, the once-suspended requirements of substantive law regain

force.266

To constitute a permanent alteration of substantive law, the text of the provision must clearly

indicate that it will continue in force even after the appropriations themselves presumptively

261 Minis v. United States, 40 U.S. 423, 445 (1841); see also Jarvis, 26 F. Cas. at 588 (stating that courts are “not

accustomed to look” to appropriations acts “for permanent regulations”).

262 Whatley v. D.C., 447 F.3d 814, 819 (D.C. Cir. 2006) (“The normal presumption is that appropriations acts do not

amend substantive law, and that when they do, the change is only intended for one fiscal year.” (emphasis added)

(internal quotation marks omitted)).

263 See Seattle Audubon Soc’y v. Evans, 952 F.2d 297, 304 (9th Cir. 1991) (“In this case Congress has expressed its

intent to alter the substantive law, but has also demonstrated its intent to make this restriction effective for only a year

at a time.”).

264 See id.

265 See, e.g., United States v. Dickerson, 310 U.S. 554, 561 (1940) (“We are of [the] opinion that Congress intended in

§ 402,” a limitation in an appropriations act, “to suspend the enlistment allowance authorized by § 9” of the Basic

Military Pay Act “during the fiscal year ending on the 30th of June, 1939”). Sometimes, courts refer to a temporary

alteration of substantive law as a single-year “repeal” of the substantive law. See Granite State Chapter v. Fed. Lab.

Rels. Auth., 173 F.3d 25, 28 (1st Cir. 1999) (stating that general provision in a defense appropriations act “repealed,”

for a single fiscal year, substantive law provisions providing federal employee unions the “right” to lobby Congress on

official time). Calling such a change a “repeal” is likely a misnomer. See Brown v. Barry, 3 U.S. 365, 367 (1797) (“The

suspension of an act for a limited time, is not a repeal of it.”). A “repeal” of a federal statute has indefinite effect;

“repealed” matter must be reenacted or revived via statute before it may take effect once again. See Bender v. United

States, 93 F.2d 814, 815–16 (3rd Cir. 1937) (reversing criminal conviction for violation of an 1868 statute requiring a

distiller to post a sign advertising its status as a registered distiller because the National Prohibition Act of 1919

impliedly repealed the 1868 sign requirement and the National Prohibition Act’s repeal in 1935 did not have the effect

of reenacting or otherwise reviving those provisions of law that the National Prohibition Act itself repealed, including

the 1868 statute’s sign requirement) (applying predecessor version of 1 U.S.C. § 108). Thus, without more, provisions

of substantive law that are in fact “repealed” by an appropriations act likely would not regain effect after the end of the

fiscal year for which the act made appropriations.

266 See Bldg. & Const. Trades Dep’t, AFL-CIO v. Martin, 961 F.2d 269, 274 (D.C. Cir. 1992) (noting that an

appropriations act provision that lacks permanence “operates only in the applicable fiscal year”); Donovan v. Carolina

Stalite Co., 734 F.2d 1547, 1557 n.15 (D.C. Cir. 1984) (explaining that whatever “enforcement powers” a provision in

a continuing appropriations act “took from” the Mine Safety and Health Review Commission the powers “were

returned to the agency” when the act was superseded by another appropriations act that did not carry the same

limitation); cf. Robertson v. Seattle Audubon Soc., 503 U.S. 429, 438–39 (1992) (examining a regular appropriations

act general provision modifying timber harvesting requirements for sales offered during FY1990 and explaining that

for “challenges to sales offered before or after fiscal year 1990” the general provision “expressly reserved judgment

upon the legal and factual adequacy of the administrative documents authorizing the sales” in that the provision did not

by its terms apply to sales before or after FY1990 (internal quotation marks omitted)); United States v. Vulte, 233 U.S.

509, 515 (1914) (concluding plaintiff was entitled to a 10% bonus under a 1902 statute for service abroad in 1908-1909

because matter in 1906 and 1907 appropriations acts had only temporarily suspended the bonus entitlement); United

States v. Mitchell, 109 U.S. 146, 150 (1883) (noting that appropriations that changed the salary for designated

interpreters fixed by substantive law for designated interpreters “for the time covered by” the appropriations acts).

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expire.267 The absence of an “expiration date apparent on” the provision’s face will not suffice.268

The Supreme Court has referred to such language as “words of prospective extension,”269 while

other courts have referred to such language as indicating “futurity.”270

Congress commonly uses stock words or phrases to define the scope of a regular appropriations

act proviso or general provision, and as a result trends have developed in case law on permanence

questions. Some words or phrases overcome the presumption of temporary application; others do

not. Among the most common indications of futurity is the term “hereafter.”271 Equivalently, a

regular appropriations act provision that applies to a specific fiscal year “and thereafter” has been

deemed permanent.272

Reflecting the close scrutiny that courts apply to permanence questions, a court refused to read

the term “hereinafter” as a synonym for “hereafter,” finding instead that the term referred only to

the appropriations act containing the limitation.273 Similarly, under GAO decisions whose

reasoning courts have endorsed,274 on its own the commonly used phrase “this or any other act”

refers only to the other acts that make appropriations for the same fiscal year as the act containing

the provision whose permanence is in question.275 A court likewise held that a provision that

required the U.S. Army Corps of Engineers (the Corps) to make wetlands determinations using a

1987 manual, and not its 1989 successor, “until” the Corps adopted a new manual after notice and

comment was temporary.276

Courts look to factors beyond particular language of futurity to decide whether a provision is

temporary or permanent. For example, courts have considered whether the provision at issue

relates to appropriations or spending. If it does not, that lack of connection between the provision

and the primary function of the act in which it appears might be evidence of permanence.277

267 Martin, 961 F.2d at 274 (“[A] provision contained in an appropriations bill operates only in the applicable fiscal

year, unless its language clearly indicates that it is intended to be permanent.”).

268 Id. at 273.

269 See Vulte, 233 U.S. at 515.

270See, e.g., Nat. Res. Def. Council v. U.S. Forest Serv., 421 F.3d 797, 806 n.19 (9th Cir. 2005).

271 See Tin Cup, LLC v. U.S. Army Corps of Eng’rs, 904 F.3d 1068, 1073 (9th Cir. 2018) (“‘Hereafter’ is the most

common word of futurity.”); but see Auburn Housing Auth. v. Martinez, 277 F.3d 138, 142, 146–47 (2d Cir. 2002)

(concluding that the phrase “no funds in this Act or any other Act may hereafter be used” for certain housing assistance

applied only to funds made available by the act but did not apply to funds appropriated for subsequent fiscal years).

272 See Everytown for Gun Safety Support Fund v. Bureau of Alcohol, Tobacco, Firearms & Explosives, 984 F.3d 30,

41 (2d Cir. 2020) (observing that because a general provision stated that it applied “to fiscal year 2009 and thereafter”

the provision “would remain in effect today if Congress had not” subsequently enacted a related general provision that

the court found impliedly repealed the FY2009 provision (emphasis in original) (internal quotation marks omitted));

see also Abdeljabbar v. Bureau of Alcohol, Tobacco & Firearms, 74 F. Supp. 3d 158, 175 (D.D.C. 2014) (concluding

that the provision referring to “fiscal year 2009 and thereafter” was “a permanent prohibition” effective until later

repealed or modified).

273 See Atl. Fish Spotters Ass’n v. Evans, 321 F.3d 220, 226 (1st Cir. 2003) (stating that the “universally accepted

meaning” of “hereinafter “refers to that which follows in the same writing”).

274 See id.

275 Permanency of Weapon Testing Moratorium Contained in Fiscal Year 1986 Appropriations Act, B-222097, 65

Comp. Gen. 588, 589 (May 22, 1986) (opining that the phrase “this Act or any other Act” did “not make the antisatellite weapon testing restriction permanent, but rather merely extend[ed] the applicability of the restriction to any

other funds available during fiscal year 1986, in addition to funds made available by the Department of Defense

Appropriations Act, 1986” that contained the restriction).

276 See Tin Cup, LLC, 904 F.3d at 1073–74.

277 Compare Minnesota ex rel. Hatch v. Hoeven, 456 F.3d 826, 831, 833 (8th Cir. 2006) (general provision stating

policy of Congress that states should continue to regulate hunting and fishing within their boundaries including by

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Courts have also concluded that the reenactment of an appropriations act provision is evidence

that Congress intended each such enactment to be limited to the fiscal year covered by each such

enactment.278 If Congress intended a prior enactment to have had permanent effect, so the courts’

reasoning goes, it would not have reenacted the same provision for a subsequent fiscal year.279

Effect of Report Provisions

As noted above, appropriations acts are often accompanied by detailed reports containing a

variety of directives to the agencies whose programs the act funds. At a minimum, these report

directives are practically significant for the agency concerned—an agency will not ordinarily

disregard views of the Appropriations Committees on matters deemed significant enough to be

included in a committee report. A question that often arises, though, is whether seemingly

mandatory language that appears only in a report—such as language in a committee report

directing the submission of a report to the Appropriations Committees or allocating amounts

within an appropriation to a particular program—is legally binding on the agency concerned.

Would a court conclude that committee report language phrased in mandatory terms in fact

compels an agency to take, or not take, the specified acts?

The answer to that question usually will be “no”; the report serves as legislative history only. As

such, the report might aid in interpreting ambiguous language in an appropriations act, or the

report might buttress a reading of the act that is arrived at through other interpretative means, 280

but it cannot impose requirements that the statute does not.

In at least one circumstance,281 of particular significance to appropriations acts, the answer may

be more nuanced. It is possible for report language to have binding effect if the language is

incorporated by reference into the appropriations act. This section discusses these concepts in

turn.

The General Rule: Report Language Alone Is Not Legally Binding

Article I, Section 7 of the Constitution establishes “a single, finely wrought and exhaustively

considered, procedure” for enacting laws.282 A bill must pass both chambers in identical form and

be presented to the President for approval. Thereafter, a bill can become law only in three

circumstances: the President signs and thereby approves the bill; Congress overrides the

President’s disapproval; or the President does not act on the bill within 10 days when Congress is

differentiating between residents and nonresidents in allocating licenses and permits) (rejecting argument that provision

was temporary as “the disputed section does not relate to appropriations and spending”), and Roccaforte v. Mulcahey,

169 F. Supp. 360, 363 (D. Mass. 1958) (noting that matter enacted in an appropriations act and exempting deportation

proceedings from the Administrative Procedure Act stood “apart from any specific item of appropriation”), with Atl.

Fish Spotters Ass’n, 321 F.3d at 225 (observing that provision barring the Department of Commerce from using

appropriated funds to issue permits to vessels that used spotter planes to fish for Atlantic bluefin tuna was “not so

foreign to the surrounding appropriations as to make it unreasonable to interpret its text as creating temporary law”).

278 See, e.g., United States v. Vulte, 233 U.S. 509, 514 (1914).

279 See id.

280 See supra notes 10–12.

281 Committee reports are also understood to figure in the implementation of reprogramming notice provisions that

appear in regular appropriations acts. See Stiff, Power Over Appropriations, supra note 51, at 36–37.

282 INS v. Chadha, 462 U.S. 919, 951 (1983).

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in session.283 Congress only exercises legislative power in text that is enacted in this way.284 The

houses do not vote on reports that are drafted to accompany a regular appropriations act. For that

reason, the reports, themselves, do not have the force of law.285

A case in point, Roeder v. Islamic Republic of Iran, involved a default judgment on liability

against the Islamic Republic of Iran, obtained by victims of the 1979 hostage crisis.286 Prior to a

hearing on damages, the U.S. Department of State (State) intervened to have the default judgment

vacated and the case dismissed on the separate grounds (1) that the FSIA deprived the district

court of jurisdiction over claims against Iran and (2) that an executive agreement with Iran barred

the claims.287 Congress responded in two appropriations acts, amending FSIA to defeat State’s

first argument.288 Joint explanatory statements that accompanied both acts’ conference reports

stated that the FSIA amendments “quashe[d]” State’s motion.289 The second joint explanatory

statement added that the amendments allowed the default judgment to stand as a basis to award

damages to the plaintiffs.290

While the appropriations acts amended FSIA, the U.S. Court of Appeals for the D.C. Circuit

(D.C. Circuit) held that the acts did not abrogate the executive agreement.291 Moreover, while the

explanatory statement for the second appropriations act included broad language that might, if

enacted, “abrogate an executive agreement,” the D.C. Circuit concluded that those statements

lacked the force of law because “Congress did not vote on the [joint explanatory] statement and

the President did not sign a bill embodying it.”292

While Roeder involved substantive amendments to the jurisdiction of federal courts, a subject that

is outside the normal remit of an appropriations act, the rule applied in Roeder equally applies to

report provisions that attempt to regulate use of budget authority in a manner that the

appropriations act does not. For example, the Consolidated and Further Continuing

Appropriations Act, 2013, appropriated $500,000 as a line item within the Federal Bureau of

Investigations (FBI) Salaries and Expenses appropriation to review the implementation of

recommendations made by the National Commission on Terrorist Attacks Upon the United States

(the 9/11 Commission) related to the FBI.293 The act’s explanatory statement required the FBI to

submit to the Appropriations Committees a report detailing results of this review and defined the

scope of the review to include consideration of any new evidence “now known to the FBI that

283 See U.S. CONST. art. I, § 7, cl. 2.

284 See Fin. Oversight & Mgmt. Bd. for P.R. v. Aurelius Inv., LLC, 140 S. Ct. 1649, 1656 (2020).

285 See Am. Hosp. Ass’n v. N.L.R.B., 499 U.S. 606, 616 (1991).

286 333 F.3d 228 (D.C. Cir. 2003).

287 Id. at 231.

288 Id. at 235 (noting that the appropriations acts’ amendments to the Foreign Sovereign Immunity Act (FSIA) “created

an exception, for this case alone, to Iran’s sovereign immunity, which would otherwise have barred the action”).

289 H.R. REP. NO. 107-278, at 170 (2001) (conf. rep. joint explanatory statement); H.R. REP. NO. 107-350, at 422 (2001)

(conf. rep. joint explanatory statement).

290 See H.R. REP. NO. 107-350, at 422 (2001) (conf. rep. joint explanatory statement) (stating that the FSIA

amendments “acknowledge[d] that, notwithstanding any other authority, the American citizens who were taken hostage

by the Islamic Republic of Iran in 1979 have a claim against Iran under the Antiterrorism Act of 1996 and the provision

specifically allows the judgment to stand for purposes of award damages”).

291 Roeder, 333 F.3d at 236 (“The amendments do not, on their face, say anything about the Accords. They speak only

to the antecedent question of Iran’s immunity from suit in United States courts.”).

292 Id. at 237.

293 Consolidated and Further Continuing Appropriations Act, 2013, Pub. L. No. 113-6, Div. B, tit. II, 127 Stat. 198, 247

(2013).

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was not considered by the 9/11 Commission” concerning factors that contributed to the attacks.294

According to individual and organizational plaintiffs, the FBI report did not consider certain new

alleged evidence of the causes of the terrorist attack. These plaintiffs sued, citing the FBI’s failure

to comply with the supposed report mandate.295 A court rejected their claims for lack of standing,

finding that the FBI did not in fact have a duty under the appropriations act to submit a report

detailing its review, which in turn meant that the plaintiffs had not adequately pled any injury for

failure to comply with the supposed report mandate. The appropriations act merely funded the

review; the act did not require the FBI to prepare a report detailing its review, and the explanatory

statement could not impose that requirement on its own.296

Similarly, the Consolidated Appropriations Act, 2014, appropriated amounts for certain

Department of Labor (DOL) contracts for the operation and maintenance of Job Corps

facilities.297 The act’s explanatory statement directed DOL to give “due consideration” to highperforming incumbent contractors when renewing or rebidding such contracts.298 In rebidding one

contract DOL used a small business set-aside, thus barring the incumbent contractor, which did

not qualify as a small business, from competing.299 The incumbent sued, arguing in part that use

of a set-aside disregarded “congressional instructions.”300 The Court of Federal Claims dismissed

the incumbent contractor’s claims.301 The appropriations act merely appropriated amounts to fund

Job Corps operations and maintenance contracts; the act did not impose any requirements

concerning DOL’s means of procuring of such services.302

In each of these cases, Congress passed a bill making regular appropriations, and one or more

committees wrote a report relating to the bill. The reports included language that by its terms

sought to impose requirements or limitations on agencies—modifying executive agreements,

requiring report submission, or dictating how services would be procured. However, the reports

were not voted on by both houses, much less presented to the President for approval, and thus the

reports’ seemingly mandatory language imposed no binding requirements on relevant agencies.

The Exception: Incorporation by Reference

A common feature of modern-day regular appropriations acts poses a variation on the question of

whether committee reports can impose binding requirements: If a report, standing alone, may not

294 159 CONG. REC. S1305 (daily ed. Mar. 11, 2013) (“The FBI shall submit a report to the Committees, no later than

one year after enactment of this Act, on the findings and recommendations resulting from this review.”).

295 See Lawyers’ Committee for 9/11 Inquiry, Inc. v. Wray, 424 F. Supp. 3d 26, 29 (D.D.C. 2020), aff’d 848 F. App’x.

428 (D.C. Cir. 2021).

296 Id. at 31 (“Even if some legislators wanted the FBI to issue a report—and to disclose information in doing so—the

legislature enacted no disclosure requirement.”); see also Lawyers’ Comm. for 9/11 Inquiry, Inc. v. Wray, 848 F.

App’x 428, 430 (D.C. Cir. 2021) (stating that “as the district court noted, the text of this provision does not require the

disclosure of information” and that even assuming the explanatory statement “were relevant in interpreting an

appropriations provision that unambiguously stops short of imposing any public disclosure requirement, the

explanatory statement also makes no mention of disclosure of any information to the public” (emphasis in original)

(internal quotation marks omitted)).

297 See Consolidated Appropriations Act, 2014, Pub. L. No. 113-76, Div. H, tit. I, 128 Stat. 5, 349–50 (2014) (Office of

Job Corps); see also Adams & Assocs., Inc. v. United States, 120 Fed. Cl. 250, 251 (2015).

298 160 CONG. REC. H1033 (daily ed. Jan. 15, 2014).

299 See Adams & Assocs., Inc., 120 Fed. Cl. at 250–51.

300 See id. at 251.

301 Id.

302 Id. at 253 (“[T]he Act needs no explanation. It merely appropriates money. There is no ambiguity as to meaning.”).

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impose binding requirements, may an appropriations act be written to give effect to report text

without repeating that report text in the act itself? Modern-day appropriations acts often refer to

allocations of funds or other directives contained in an accompanying committee report303 or

classified annex304 in terms that appear intended to give effect to those allocations or directives.

Though no case law appears to address the permissibility of this particular mode of legislating as

a means of regulating the use of budget authority provided in a regular appropriations act,

decisions in analogous contexts appear to sanction its use.305 This case law suggests that an

appropriations act gives legal effect to nonstatutory matter when the appropriations act contains

legally sufficient words of incorporation for extrinsic matter that exists at the time the measure

was enacted into law. Administrative interpretations from GAO and the Department of Justice

(DOJ) confirm this conclusion.306

Incorporation by reference “antedates the federal system.”307 The centuries-old application of the

doctrine to the law of wills demonstrates its operation. Historically, a testator (i.e., a person who

makes a will) was required to follow certain formalities to execute a will—a legally significant

document detailing how the testator’s property would be disposed upon death.308 In 1607, the

Court of King’s Bench concluded that a will made a “good devise” of rents, even though the will

itself referred only to “several annuities or annual rents” described in other writings that were not

themselves executed.309 If the will is validly executed and unambiguously refers to a second

document that contains the text to be incorporated, the text of the second document may be

treated as part of the will even though the second document did not adhere to testamentary

formalities.310

303 See supra note 90 and accompanying text (quoting recurring general provision of the Department of State, Foreign

Operations, and Related Programs Appropriations Act providing that certain appropriations “shall be made available in

the amounts specifically designated in the respective tables included in the explanatory statement”).

304 See Consolidated Appropriations Act, 2021, Pub. L. No. 116-260, Div. C, tit. VIII, § 8006(a) (2020).

305 The use of incorporation by reference may raise legal questions beyond whether that method of legislating complies

with the “finely wrought” lawmaking process set forth in Article I, § 7. Cf. United States v. Lanier, 520 U.S. 259, 264

n.3, 264–67 (1997) (statute criminalizing the willful deprivation of “any rights, privileges, or immunities secured or

protected by the Constitution or laws of the United States” while acting under color of law) (discussing standard that

applies to deciding whether the statute, which “in lieu of describing the specific conduct it forbids” incorporated

“constitutional law by reference,” provided fair warning that particular conduct is criminal).

306 Comm. Resolutions Under 40 U.S.C. § 3307(a) and the Availability of Enacted Appropriations, 2018 WL 3450206

(O.L.C. Jan. 26. 2018); Consolidated Appropriations Act, 2008—Incorporation by Reference, B-316010, 2008 WL

540192 (Comp. Gen. Feb. 25, 2008).

307 Gen. Elec. Co. v. Brenner, 407 F.2d 1258, 1261 (D.C. Cir. 1968).

308 See, e.g., John H. Langbein, Substantial Compliance with the Wills Act, 88 HARV. L. REV. 489, 489–90 (1975)

(describing the law of wills as “notorious for its harsh and relentless formalism” and listing testamentary formalities

such as requirements that a testator sign a will in the presence of witnesses who then attest that the testator in fact

signed the will).

309 See Molineux v. Molineux (1607), 79 Eng. Rep. 126, 126–27 (K.B).

310 See Habergham v. Vincent (1793), 30 Eng. Rep. 595, 607 (K.B.) (“[I]f a testator refers [in the will] expressly to any

paper already written, and has so described it, that there can be no doubt of the identity [of the paper], and the will is

executed” in accordance with law, “that paper, whether executed or not, makes part of the will.”); see also Cyfers v.

Cyfers, 233 W. Va. 528, 533–34 (2014) (similar statement as in Habergham); Gail Boreman Bird, Sleight of

Handwriting: The Holographic Will in California, 32 HASTINGS L.J. 605, 625 (1981) (discussing Habergham and

characterizing incorporation by reference as “a magical process by which a document not complying with testamentary

formalities is given testamentary effect”).

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It is one thing to say that a will, contract,311 or prior art document312 may employ incorporation by

reference to give legal effect to extrinsic matter. It is another thing to say the same of a statute,

given the Constitution’s “finely wrought” requirements for lawmaking.313 One court appears to

have considered this latter proposition in the context of a reference to nonstatutory matter in an

appropriations act, albeit not in the context of a reference that sought to regulate the use of budget

authority. In Hershey Foods Corp. v. U.S.

This text is long and has been trimmed here. Open the source document for the complete record.