# Regular Appropriations Acts: Selected Statutory Interpretation Issues > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/crs%3AR46899 ## Record - **Collection:** Congressional research report - **Document type:** CRS Report - **Published:** September 3, 2021 - **Citation:** R46899 ## Text 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). Congressional Research Service 1 Regular Appropriations Acts: Selected Statutory Interpretation Issues 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]. Congressional Research Service 2 Regular Appropriations Acts: Selected Statutory Interpretation Issues 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 Congressional Research Service 3 Regular Appropriations Acts: Selected Statutory Interpretation Issues 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). Congressional Research Service 4 Regular Appropriations Acts: Selected Statutory Interpretation Issues 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). Congressional Research Service 5 Regular Appropriations Acts: Selected Statutory Interpretation Issues 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”). Congressional Research Service 6 Regular Appropriations Acts: Selected Statutory Interpretation Issues 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.”). Congressional Research Service 7 Regular Appropriations Acts: Selected Statutory Interpretation Issues 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 Congressional Research Service 8 Regular Appropriations Acts: Selected Statutory Interpretation Issues 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.” Congressional Research Service 9 Regular Appropriations Acts: Selected Statutory Interpretation Issues 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, Congressional Research Service 10 Regular Appropriations Acts: Selected Statutory Interpretation Issues 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 Congressional Research Service 11 Regular Appropriations Acts: Selected Statutory Interpretation Issues 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)). Congressional Research Service 12 Regular Appropriations Acts: Selected Statutory Interpretation Issues 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). Congressional Research Service 13 Regular Appropriations Acts: Selected Statutory Interpretation Issues 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). Congressional Research Service 14 Regular Appropriations Acts: Selected Statutory Interpretation Issues 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 Congressional Research Service 15 Regular Appropriations Acts: Selected Statutory Interpretation Issues 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. Congressional Research Service 16 Regular Appropriations Acts: Selected Statutory Interpretation Issues 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 Congressional Research Service 17 Regular Appropriations Acts: Selected Statutory Interpretation Issues 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). Congressional Research Service 18 Regular Appropriations Acts: Selected Statutory Interpretation Issues 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 Congressional Research Service 19 Regular Appropriations Acts: Selected Statutory Interpretation Issues 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.”). Congressional Research Service 20 Regular Appropriations Acts: Selected Statutory Interpretation Issues 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). Congressional Research Service 21 Regular Appropriations Acts: Selected Statutory Interpretation Issues 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). Congressional Research Service 22 Regular Appropriations Acts: Selected Statutory Interpretation Issues 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, Congressional Research Service 23 Regular Appropriations Acts: Selected Statutory Interpretation Issues 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.”). Congressional Research Service 24 Regular Appropriations Acts: Selected Statutory Interpretation Issues 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). Congressional Research Service 25 Regular Appropriations Acts: Selected Statutory Interpretation Issues 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 all [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/crs%3AR46899. Public record. Not legal advice.