Limitations in Appropriations Measures: An
Overview of Procedural Issues

Jessica Tollestrup
Analyst on Congress and the Legislative Process
February 14, 2011
Congressional Research Service
7-5700
www.crs.gov
R41634
CRS Report for Congress
P
repared for Members and Committees of Congress

Limitations in Appropriations Measures: An Overview of Procedural Issues

Summary
Both the House and Senate have internal rules encouraging the separation of money and policy
decisions. These rules bar legislative provisions from being included in general appropriations
measures under most circumstances. Limitations within appropriations measures are provisions
that negatively restrict the amount, purpose, or availability of funds without changing existing
law. The effect of these provisions is to limit the actions for which funds may be used through the
capping or outright denial of funds. Limitations are distinct from legislative provisions, which
have the effect of either making new law or changing existing law. This distinction has been
developed and refined over time based on various rulings establishing what type of language is
allowable.
The procedural contexts within the House and the Senate for the consideration of limitations on
the floor differ in three significant ways. First, while legislative provisions are generally not
allowed under the rules of the House, the rules of the Senate do allow exceptions under some
circumstances. Second, while House Rule XXI designates a particular process for the
consideration of limitation amendments, the Senate has no specific procedures relating to such
provisions. Third, while House Rule XXII bans legislative language within conference reports,
Senate rules contain no such prohibition.
There are two forms in which limitations regularly occur. The first form places a total ban on the
use of funds by stipulating that none of the funds in the account or bill can be used for a certain
purpose. The second form, sometimes referred to as a “not to exceed” limitation, provides that the
use of funds is not to exceed a specific amount or percentage of total funds for a certain account,
item, activity, agency, or bill but does not change existing law. Limitations that prohibit the use of
funds for certain purposes have been used to prevent federal funding for specific activities, a class
of recipients, or to prohibit funding for earmarks. “Not to exceed” limitations have been used to
establish funding ceilings for certain activities, or total funding amounts. Both types of limitations
also have been used to restrict the availability of funds for transfer.
Limitations and legislative provisions are distinguished both by structure and substance. With
respect to structure, a limitation must be phrased as a negative funding prohibition. For substance,
a limitation must not effectively waive current law, alter agency discretion, impose new duties
upon the official or agency, or provide funding based upon a contingency. Additionally, whether
the recipient of the funds can be considered “federal” and, in the House, if the subject matter of
the limitation involves taxes or tariffs, can determine the admissibility of this type of provision.
When a limitation provision has been the subject of a point of order, the burden of proof is on its
proponent to demonstrate that the restrictions exist within current law, or that the new provision
does not effectively change agency discretion or impose new duties.

Congressional Research Service

Limitations in Appropriations Measures: An Overview of Procedural Issues

Contents
Introduction ................................................................................................................................ 1
Note on the Use of Precedents............................................................................................... 3
Limitations and the Floor Process................................................................................................ 3
House Floor Process.............................................................................................................. 4
Senate Floor Process ............................................................................................................. 6
Forms of Limitations and Previous Purposes ............................................................................... 6
Limitations as Funding Prohibitions ...................................................................................... 7
Activities ........................................................................................................................ 7
Class of Recipients.......................................................................................................... 8
Limitations and Earmarks ..................................................................................................... 9
Limitations as Funding Ceilings .......................................................................................... 10
Specific Accounts, Items, or Activities .......................................................................... 10
Funding Ceilings on Total Expenditures ........................................................................ 11
Transfer Authority............................................................................................................... 11
Distinguishing Between Limitations and Legislative Provisions ................................................ 12
Scope.................................................................................................................................. 13
Current Law........................................................................................................................ 14
Agency Discretion .............................................................................................................. 14
Expanding Discretion.................................................................................................... 15
Duties and Determinations .................................................................................................. 15
Incidental Duties and Determinations Found in Existing Law........................................ 15
New Duties and Determinations .................................................................................... 16
Contingencies ..................................................................................................................... 17
Contingencies that Alter Agency Discretion................................................................... 17
Contingencies Requiring New Duties and Determinations ............................................. 18
Contingencies Requiring Action in Violation of Existing Law ....................................... 19
Federal Versus Non-federal Recipients ................................................................................ 19
Taxes and Tariffs................................................................................................................. 21
Burden of Proof ........................................................................................................................ 22
House ................................................................................................................................. 22
Senate ................................................................................................................................. 23

Contacts
Author Contact Information ...................................................................................................... 24

Congressional Research Service

Limitations in Appropriations Measures: An Overview of Procedural Issues

Introduction
Both the House and Senate have internal rules encouraging the separation of money and policy
decisions. These rules stem from the principle that the process through which the activities of
government are chosen should be distinct from the process through which those activities are
funded. For activities funded through the annual appropriations process (referred to as
discretionary spending1), which currently comprises about 40%2 of all government spending,
Congress differentiates between the authorization process, where substantive law establishing
government entities, activities, or programs is created, and the appropriations process, where
budget authority is provided to government agencies or programs to obligate funds.3
Under the rules of the House and Senate, unauthorized appropriations and other types of
legislative provisions typically may not be included in appropriations measures. These rules were
formally established in both chambers during the mid-1800s in order to address concerns with
delays in enacting appropriations, due to the inclusion of extraneous legislative matters that
tended to provoke controversy.4 As currently provided in House Rule XXI, the House bars
legislative provisions from being reported in general appropriations bills; 5 amendments to general
appropriations bills containing language that would add to or alter existing law are also
prohibited.6 Clause 5 of House Rule XXII also prohibits the inclusion of legislative language in
conference reports that accompany appropriations acts. 7 Senate Rule XVI8 additionally restricts
legislative language not contained within existing law from being added via amendment9 to a
general appropriations bill,10 unless it is determined to be germane to a legislative provision

1 Discretionary spending is provided for through the annual appropriation process. For further information on how
discretionary spending differs from direct spending, see CRS Report 98-721, Introduction to the Federal Budget
Process
, coordinated by Bill Heniff Jr.
2 For further information on historic levels of discretionary spending relative to the total federal budget, see CRS
Report RL34424, Trends in Discretionary Spending, by D. Andrew Austin and Mindy R. Levit.
3 For further information on the distinction between authorizations and appropriations generally, see CRS Report 97-
684, The Congressional Appropriations Process: An Introduction, by Sandy Streeter.
4 Asher C. Hinds, Hinds’ Precedents of the House of Representatives of the United States (Washington: GPO, 1907-
1908), [Hereafter Hinds’ Precedents], vol. 4, § 3578.
5 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. Continuing resolutions are not considered to be
general appropriations bills. See W[illia]m Holmes Brown and Charles W. Johnson, House Practice: A Guide to the
Rules, Precedents and Procedures of the House
, 108th Cong., 1st sess., (Washington: GPO, 2003), [Hereafter House
Practice
], chapter 4, § 3, p. 75.
6 In the House, this prohibition also includes motions to recommit general appropriations measures with instructions
containing legislative language (see Rules of the House of Representatives, in House Manual, One Hundred Eleventh
Congress
, H.Doc. 110-162, 110th Cong., 2nd sess., [compiled by] John V. Sullivan, Parliamentarian (Washington: GPO,
2009), § 1044).
7 Rules of the House of Representatives, in House Manual, 111th Congress, § 1076-1077.
8 Standing Rules of the Senate, in Senate Manual, S.Doc. 110-1, 110th Cong., 2nd sess., [compiled by] the Senate
Committee on Rules and Administration (Washington: GPO 2008), pp. 14-16.
9 In the Senate, this prohibition covers all Senate amendments to House bills, including committee amendments, floor
amendments, and amendments between the houses.
10 In the Senate, “general appropriations bills” are the annual appropriations acts (or any combination thereof) and any
supplemental or continuing appropriations acts that cover more than one agency or purpose. See Floyd M. Riddick and
Alan S. Frumin, Riddick’s Senate Procedure: Precedents and Practices, 101st Cong., 2nd sess., S. Doc. 101-28
(Washington: GPO, 1992), [Hereafter Riddick’s Senate Procedure], pp. 159.
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Limitations in Appropriations Measures: An Overview of Procedural Issues

previously added by the House.11 These rules are enforced on the House and Senate floor through
points of order, but if legislative provisions are enacted as a part of an appropriations measure,
they have the full force of the law.
Although House and Senate rules restrict legislating on appropriations, policy matters may be
included through limitation provisions. Limitations within appropriations measures are provisions
that negatively restrict the amount, purpose, or availability of funds without changing existing
law. The effect of these provisions is to limit the actions for which funds may be used through the
capping or outright denial of funds for specific purposes. Proper limitations are distinct from
legislative provisions, because they do not have the effect of either making new law or changing
existing law. As a result, limitation provisions, which define the purposes for which budget
authority may not be used without also affecting a recipient’s discretion under other laws, have
frequently been included within the text of appropriations bills reported by the committee or
added by amendments on the floor. The allowability of limitations under the rules of the House
and Senate is based upon the principle that while Congress may authorize an activity, it is under
no obligation to fund it. Congress can therefore choose to specify those purposes for which funds
are not to be used, even if that purpose has been previously authorized.12
The distinction between legislative provisions and funding limitations has been developed and
refined over time based on various rulings that establish what types of provisions are allowable.
Early debates over the permissibility of limitation provisions centered around the question of
“[whether] the proposed limitation might be construed by the executive or administrative officer
as a modification of statute [or] a change in existing law.”13 So, while a House floor amendment
to the FY1910 Fortifications appropriations bill stipulating “That all material purchased under the
foregoing provision of this act shall be of American manufacture” was ruled by the chair to be out
of order, that same amendment, rephrased by unanimous consent as, “Provided, That no money
appropriated by this act shall be expended except for goods of American manufacture,” was
allowed because it no longer contained an affirmative direction to the recipient of the funds.14
In more recent years, as the precedents regarding limitations have become more nuanced,
parliamentary determinations of legislative language have stemmed from a number of principles
related to the imposition of new duties upon the recipient of funds, changes in agency discretion,
or whether the provision mandates action contrary to law. The goal of this report is to clarify
aspects of the legislative process concerning the inclusion of limitations in appropriations
measures under the rules of the House and Senate.
This report begins by explaining the contrasting procedural contexts that influence the
consideration of limitation provisions in appropriations measures on the House and Senate floor.
Next, the two forms of limitations that have been allowed under House and Senate precedents are
defined, with examples of previous purposes that have been allowed. This report then proceeds to
identify the variety of substantive challenges that exist in structuring a limitation provision so that

11 In these instances, the Senate votes on whether a provision is germane in relation to an appropriate definition of
germaneness (see Riddick’s Senate Procedure, pp. 161-171). This is discussed in further detail below.
12 Lewis Deschler, Deschler’s Precedents of the U.S. House of Representatives, 94th Cong., 1st sess., H.Doc. 94-661
(Washington: GPO, 1977-1991), [Hereafter Deschler’s Precedents], vol. 8, chapter 26, § 64.
13 Hinds’ Precedents, vol. 4, § 3978.
14 Clarence Cannon, Cannon’s Precedents of the House of Representatives of the United States (Washington: GPO,
1935-1941), [Hereafter Cannon’s Precedents], vol. 7, § 1702.
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it does not constitute legislative language, and thereby violates House and Senate rules. Finally,
this report concludes by discussing the effect of points of order during floor consideration, and
the burden of proof that exists for proponents of limitation provisions in order to successfully
overcome procedural objections.
Note on the Use of Precedents
While many of the examples of both proper and improper limitations utilized in this report are
from older precedents, they nevertheless remain applicable to House and Senate rules in this area.
Precedents regarding limitations are also considerably more numerous in the House than the
Senate. One reason for this is that, unlike the House, the Senate has no specific rules governing
the consideration of limitations beyond those that prohibit legislative language in appropriations
acts. In addition, the Senate occasionally allows legislative language to be inserted in an
appropriations act if it is determined by a majority of Senators to be germane to legislative
language already included by the House in the bill.15 The Senate has previously relied, in at least
once instance, on House precedents for defining an acceptable limitation, which resulted in the
chair upholding a point of order against a limitation as being legislative in nature.16 Additionally,
the parliamentarian’s discussion of what constitutes a proper limitation contained in Riddick’s
Senate Procedure
occasionally utilizes House precedents to clarify the types of provisions that
have been allowed as limitations.17 This report will therefore rely primarily on precedents from
the House to help define and illustrate proper limitation provisions. Areas where the House and
Senate diverge in their understanding of, or approach to, what constitutes a limitation will be
noted as they occur.
This report should also be read with several caveats in mind. First, this report does not take
account of every ruling that has been made and does not address every contingency that might
arise.18 Second, unanimous consent agreements in the Senate and special rules in the House can
be used to set aside each chamber’s respective rules and customary procedures relating to both
limitations and legislation on appropriations measures. Third, the House and Senate
parliamentarians are the advisers to the presiding officers on what constitutes a proper limitation
within the appropriations context. While this report may provide useful background information,
it should not be considered a substitute for consultation with the parliamentarian and his
associates on specific procedural problems and opportunities.
Limitations and the Floor Process
The rules of the House and Senate with respect to limitations are enforced during floor
consideration of general appropriations measures. While these rules generally encourage the
separation between policy and money decisions in the area of appropriations, the procedural

15 For more information on the defense of germaneness for legislative language included in appropriations measures,
see Riddick’s Senate Procedure, pp. 161-171.
16 Senate debate, Congressional Record, vol. 102, part 10 (July 24, 1956), p. 14172, as cited in Riddick’s Senate
Procedure
, p. 206.
17 See, for example, footnotes 172 & 173 in Riddick’s Senate Procedure, p.183.
18 The rules of the House and Senate are not self enforcing, so that if a point of order is not raised against a legislative
provision, it could conceivably be considered and adopted. This would not, however, establish a parliamentary
precedent.
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approach of each chamber differs in three significant ways with respect to the consideration of
limitations and the exclusion of legislative provisions. The first area of contrast is the extent to
which legislative provisions are allowed as committee or floor amendments. The second area of
contrast is whether chamber rules designate a separate set of procedures for the consideration of
limitation amendments. The third area of contrast relates to the allowability of legislative
provisions within conference reports.
House Floor Process
In the House, the annual appropriations bills are originated by the Committee on Appropriations.
House Rule XIII Clause 5 provides for consideration of appropriations measures, allowing an
appropriations bill to be brought directly to the floor once it has been reported by the
Appropriations Committee. For at least the last two decades, however, most appropriations
measures have been brought to the floor pursuant to a special rule that waives all points of order
(with some exceptions). These measures are then considered in the Committee of the Whole19
under the five-minute rule for amendment, unless otherwise specified by a special rule or
unanimous consent.20
Clause 2 of House Rule XXI provides some restrictions on the content of appropriations measures
and amendments to appropriations measures that are enforced during floor consideration.21 With
respect to legislative provisions, clause 2(b) of this rule bars the reporting of legislative
provisions (except for the purpose of rescission or retrenchment22) in a general appropriations
bill, making such provisions subject to a point of order during floor consideration.23 Under clause
2(c), amendments to general appropriations bills that contain legislative language are also not in
order.24 Effectively, this means that legislative language contained in a general appropriations bill
that is considered on the floor can be stricken by a point of order, without causing the bill to be
recommitted.25 In addition, an amendment containing legislative language, even if it is structured
as a limitation, is not allowed during floor consideration. A point of order may be raised against
such an amendment and, if sustained, the amendment would fall. These points of order, however,
are not self enforcing and must made by a member during floor consideration in order to trigger a
ruling from the chair.

19 Rule XVII, clause 3 requires that appropriations bills be considered within the Committee of the Whole, which is
where the House traditionally considers amendments. For further information, see CRS Report RL32200, Debate,
Motions, and Other Actions in the Committee of the Whole
, by Bill Heniff Jr. and Elizabeth Rybicki.
20 For more information on House practice related to committee origination and floor consideration of appropriations
measures, see CRS Report 97-684, The Congressional Appropriations Process: An Introduction, by Sandy Streeter.
21 Other House rules that guide floor proceedings are also often relevant during the consideration of appropriations
legislation.
22 Rescission is the cancelation of previously enacted budget authority before it expires. The “Holman Rule” related to
retrenchment applies when the legislative language in question achieves a reduction in expenditures. See Rules of the
House of Representatives, in House Manual, 111th Congress, § 1062 for a further explanation of how this principle
operates.
23 House Rule XXI, clause 2(b), in House Manual, 111th Congress, § 1038.
24 House Rule XXI, clause 2(c), in House Manual, 111th Congress, § 1039.
25 It is more typical that measures, rather than specific provisions, are subject to a point of order, so that, if successful,
the point of order would cause the measure to be recommitted to its committee of origin. For further information, see
CRS Report 98-307, Points of Order, Rulings, and Appeals in the House of Representatives, by Valerie Heitshusen.
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Clauses 2(c) and 2(d) of Rule XXI26 also stipulate a separate set of procedures for the
consideration of limitation amendments. During consideration in the Committee of the Whole, the
bill is read by paragraph and amendments may be offered to the paragraph currently under
consideration, unless specified otherwise by a special rule or by unanimous consent. Limitations
that are not contained in existing law, however, are not in order while the bill is being read for
amendment. Once all sections of the bill have been read, an amendment containing a new
limitation can be offered, but the majority leader (or a designee) may preempt this by offering a
motion to rise and report, which has precedence over motions to amend the bill.27 If successful,
the motion to rise and report ends further consideration of amendments because it causes the
Committee of the Whole to cease consideration of the bill and report its work to the House. The
effect of this rule is that the offering and consideration of limitation amendments is restricted if
the motion to rise and report is successful.
Special rules governing the consideration of appropriations measures also have a potential effect
on limitation amendments.28 Such special rules can waive points of order against provisions
contained in the bill or any potential floor amendments based upon clause 2(c) and 2(d) of Rule
XXI.29 Open rules, which generally allow amendments to be offered during floor consideration in
the Committee of the Whole, effectively permit any limitation conforming to the rules of the
House to be offered once the bill has been read for amendment. Limitation amendments can also
be included in the amendments made in order by a structured rule, which would allow only
specified amendments to be offered.30 Finally, “self-executing” provisions within special rules31
can provide for the adoption of a limitation amendment automatically upon the passage of a
special rule; 32 provisions integrated in this way are not subject to points of order.33
With respect to conference reports, clause 5(b) of Rule XXII34 additionally prohibits House
conferees from agreeing to Senate amendments that constitute legislation on appropriations in
violation of clause 2 of Rule XXI. Unless special rules waive points of order stemming from

26 House Rule XXI, clause 2(c) and 2(d), in House Manual, 111th Congress, § 1039-1040.
27 Clause 2(d) was originally added to Rule XXI at the beginning of the 98th Congress. When this paragraph was
amended during the 104th and 105th Congresses, the preferential motion to rise and report (which had typically been
utilized by the floor manager) was specifically vested with the majority leader or a designee (see Rules of the House of
Representatives, in House Manual, 111th Congress, § 1043).
28 See CRS Report 98-354, How Special Rules Regulate Calling up Measures for Consideration in the House, by
Richard S. Beth, and CRS Report 98-612, Special Rules and Options for Regulating the Amending Process, by Megan
Suzanne Lynch for further information on special rules.
29 See, for example, H.Res. 609 (111th Cong.), Providing for consideration of the bill (H.R. 2997) making
appropriations for Agriculture, Rural Development, Food and Drug Administration, and Related Agencies programs for
the fiscal year ending September 30, 2010, and for other purposes. Such protection for a conference report and any
amendments from the Senate containing legislative language can also be provided by special rules that waive clause
2(c) of Rule XXI.
30 See, for example, H.Res. 1569 (111th Cong.), Providing for consideration of the bill (H.R. 5850) making
appropriations for the Departments of Transportation, and Housing and Urban Development, and related agencies for
the fiscal year ending September 30, 2011, and for other purposes.
31 See CRS Report 98-710, “Self-Executing” Rules Reported by the House Committee on Rules, by Walter J. Oleszek
for further information on self-executing rules.
32 See, for example, H.Res. 434 (111th Cong.), Providing for consideration of the bill (H.R. 2346) making supplemental
appropriations for the fiscal year ending September 30, 2009, and for other purposes.
33 See Rules of the House of Representatives, in House Manual, 111th Congress, § 1044.
34 See House Rule XXII, clause 5(b), in House Manual, 111th Congress, § 1076-1077 for an explanation of the
evolution of House practice in this regard.
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clause 5(b) of Rule XXII, conference reports containing legislative language would be subject to
points of order on the House floor.
Senate Floor Process
Senate Rule XVI contains general provisions dealing with legislation on appropriations but gives
no specific direction regarding limitations, other than that they cannot be subject to a
contingency.35 While points of order generally lie against legislative language contained within
general appropriations measures, these types of provisions are allowed as amendments when they
are determined to be germane to legislative language passed by the House and already contained
within the appropriations bill.36 If a germaneness defense is raised before the chair rules on the
original point of order, the presiding officer instead makes an initial determination as to whether
there exists “any House language which is arguabl[y] legislative to which the amendment at issue
conceivably could be germane.”37 If the bill is determined to contain such language, the question
is put to the Senate for an immediate vote. If a majority of the Senators vote affirmatively that the
amendment is germane, the point of order falls and the amendment containing legislation is
eligible for floor consideration. Because a successful germaneness defense based upon House
legislative language is not difficult to accomplish, the effect of this rule can be that the distinction
between a proper limitation and a legislative provision is not one that the Senate needs to make
under some circumstances.38
The Senate approach to limitations during floor consideration of appropriations measures also
contrasts with that of the House, in that there are no procedures specific to the offering or
consideration of limitation amendments on the floor. Like other amendments, limitation
amendments may be offered at any point, and to any section of the bill, during the consideration
of appropriations measures when amendments are in order, unless a specific procedural
arrangement, such as a unanimous consent agreement, precludes it.
In the Senate, there is no rule barring legislative language in conference reports and the inclusion
of such language is not a valid basis for a point of order.
Forms of Limitations and Previous Purposes39
There are two forms in which limitations are regularly proposed. The first form places a total ban
on the use of funds for a certain purpose by stipulating that none of the funds in the account or
bill can be used for such purpose. This type of limitation has been allowed under House and

35 Senate Rule XVI, paragraphs 2 and 3, Standing Rules of the Senate, in Senate Manual, S.Doc. 110-1, 110th Cong.,
2nd sess., [compiled by] the Senate Committee on Rules and Administration (Washington: GPO 2008), pp. 14-15.
36 Riddick’s Senate Procedure, pp. 150-151. See CRS Report 98-853, The Amending Process in the Senate, by Betsy
Palmer, for a general explanation of Senate amending procedures and germaneness.
37 Riddick’s Senate Procedure, p. 167.
38 See Riddick’s Senate Procedure, pp. 161-171 for an extensive discussion of what constitutes allowable legislative
language.
39 All examples of limitations contained within this section are either amendments to regular appropriations acts or
provisions reported by the appropriations committee. Unless otherwise noted, all were challenged on the floor as being
legislative in nature and ruled in order by the presiding officer.
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Senate rules, even when the funds have been authorized by law for that particular activity.40 The
second form, sometimes referred to as a “not to exceed” limitation,41 provides that the use of
funds is not to exceed a specific amount or percentage of total funds. According to House
Practice
, “A negative restriction on the use of funds above a certain amount in an appropriation
bill is in order as a limitation. As long as a limitation on the use of funds restricts the expenditure
of federal funds carried in the bill without changing existing law, the limitation is in order.”42
While the rules of the House and Senate encourage money and policy decisions to remain
separate, proper limitations in appropriations legislation can effect policy by stipulating for what
purposes federal funds cannot be used, or by placing a maximum limit on spending in certain
areas.43 Limitations have been previously allowed that prohibit funding for specific activities, a
class of recipients, and earmarks. “Not to exceed” limitations that establish funding ceilings for
certain activities or total funding amounts have also previously been determined by the presiding
officer to be in order, as have limitations that restrict the availability of funds for transfer.44
Limitations as Funding Prohibitions

Limitations that prohibit federal funding for certain activities and restrict the types of recipients
that can be eligible to receive federal government funds have previously been allowed under
House and Senate rules.
Activities
While an appropriations provision that directs an agency to create or change a rule is legislative,
it has been previously ruled in order to prohibit funding for the promulgation of a specific rule, as
long as such rule is precisely described in the text of the limitation.45 The example below was a
House floor amendment to the FY1944 Independent Offices appropriations act. 46
No part of this appropriation shall be used to promulgate or enforce any rule or regulation
known as the proposed rule or regulation F-9 and F-10, and providing in substance (1) the
engineers’ reports shall be mandatory, (2) require the disclosure of the cost of purchase
prices, and (3) an abridgement of the right to appoint an agent, all with reference to the sale
of oil and gas royalties and lease under the jurisdiction of the Oil and Gas Division of the
Securities and Exchange Commission.
Similarly, a provision may be ruled in order if it is to prevent funds from being spent to carry out
a regulation. For example, the below House amendment to the FY1980 Treasury, Postal Service

40 House Practice, chapter 4, § 52, p. 124.
41 House Practice, chapter 4, § 51, p. 123.
42 Ibid.
43 Cannon’s Precedents, vol. 7, § 1694, as cited in Deschler’s Precedents, vol. 8, chapter 26, § 22.22.
44 A transfer of funds occurs when the budget authority contained in one account is either partially or completely
moved to another account.
45 For further detail on the use of restrictive provisions on appropriations measures, such as limitations, to effect agency
rulemaking, see CRS Report RL34354, Congressional Influence on Rulemaking and Regulation Through
Appropriations Restrictions
, by Curtis W. Copeland.
46 Deschler’s Precedents, vol. 8, chapter 26, § 79.7.
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and General Government appropriations act prohibited funds from being spent to carry out an IRS
tax proceeding. 47
None of the funds appropriated by this title may be used to carry out the proposed revenue
procedure 4830-01-M of the Internal Revenue Service entitled “Proposed Revenue
Procedure on Private Tax-Exempt Schools” (44 F.R. 9451 through 9455, February 13, 1979,
F.R. Document 79-4801), or the proposed revenue procedure 4830-01 of the Internal
Revenue Service entitled “Proposed Revenue Procedure on Private Tax-Exempt Schools”
(43 F.R. 37296 through 37298, August 22, 1978, F.R. Document 78-23515); or parts
thereof….
Besides prohibiting funds for agency rulemaking, limitations have also been used to prevent
funds from being spent on other types of specified activities. The example below was a House
amendment to the FY1974 Department of Housing and Urban Development Space, Science and
Veterans appropriations act, which prevented funding for any stage of development or
construction of a particular piece of technology. 48
Provided, That none of the funds appropriated in this Act shall be used to further in any way
the research, development or construction of any reusable space transportation system or
space shuttle or facilities therefore.
Another example of a limitation that prohibited funding for a certain activity was the below
House amendment to the FY1981 Treasury and Postal Service appropriations act, which sought to
prevent federal funds from being spent on any health plan for federal employees that included
abortion coverage after a certain deadline. 49
No funds appropriated by this Act shall be available to pay for an abortion or the
administrative expenses in connection with any health plan under the Federal Employees
Health Benefit Program which provides any benefits or coverage for abortions under such
negotiated plans after the last day of the contracts currently in force.

Class of Recipients
An 1896 House precedent on limitations stipulates, “While it is not in order to legislate as to
qualifications of the recipients of an appropriation, the House may specify that no part of the
appropriation shall go to recipients lacking certain qualifications.”50 Although it has not been in
order for these types of limitations to create new law or contradict current law,51 the ability to
prohibit funds for certain types of individuals or recipients has been previously utilized in a
variety of ways. The example below was a Senate amendment to the FY1955 State, Judiciary and
Commerce appropriations act. 52

47 Deschler’s Precedents, vol. 8, chapter 26, § 64.28.
48 Deschler’s Precedents, vol. 8, chapter 26, § 64.1.
49 Deschler’s Precedents, vol. 8, chapter 26, § 74.5.
50 Hinds Precedents, vol. 4, § 3941.
51 Deschler’s Precedents, vol. 8, chapter 26, § 52.18.
52 Senate debate, Congressional Record, vol. 100, part 6 (June 14, 1954), p. 8149, as cited in Riddick’s Senate
Procedure
, p. 182.
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No part of any appropriation contained in this act shall be used to pay the salary or wages of
any officer or employee of the Bureau of Inspections, Consular and Security Affairs of the
Department of State who, for the purpose of the act of August 2, 1939, as amended (5 U.S.C.
1181), shall not be included within the construction of the term “officer” or “employee.”
The ability to prohibit funds for certain recipients has also been interpreted to allow limitations
that prohibit funds for recipients that have certain characteristics. For example, the below House
amendment to the FY1973 Labor, and Health, Education, and Welfare appropriations act,
proscribed funds for government suppliers that exceed certain compensation limitations for their
own employees. 53
No part of the funds appropriated by this Act shall be used to purchase goods or services
from a supplier which compensates any officer or employee at a rate in excess of level II of
the Executive Schedule under section 5313 of title 5, United States Code.
Finally, limitations on certain recipients have also been used to restrict funds for the payment of
salaries of government and nongovernment employees that undertake certain actions. The below
example was a House amendment to the FY1943 Legislative Branch appropriations act. 54
Provided further, That no part of this appropriation shall be used to pay the salary of any
person who shall perform any service or authorize any expenditure in connection with the
printing and binding of part 2 of the annual report of the Secretary of Agriculture (known as
the Year Book of Agriculture) for 1942.

Limitations and Earmarks55
Limitations have been used in attempts to cancel congressionally directed spending items
(generally referred to as earmarks)56 within an appropriations act or the accompanying report
language.57 For example, during the 109th Congress, the Appropriations Committee report58 for
the FY2007 Agriculture appropriations bill59 contained a provision that stipulated, “The
Committee provides $229,000 for dairy education in Iowa.” In response to this, an amendment
was offered on the floor of the House that proposed to insert at the end of the bill the provision,
“None of the funds made available by this Act may be used to fund dairy education in Iowa.”60
Had this amendment become law as part of the appropriations act, it would have prevented the
$229,000 in funds set aside in the committee report from being spent on that particular activity,
without lowering the overall level of funding in the act or account itself.

53 Deschler’s Precedents, vol. 8, chapter 26, § 54.2.
54 Deschler’s Precedents, vol. 8, chapter 26, § 64.7.
55 The first example contained in this section was an amendment proposed on the House floor; it was not the subject of
a point of order and was rejected. The second example was an amendment filed in the Senate but never considered on
the floor. Although it is impossible to determine without a ruling of the presiding officer whether either of these
examples are proper limitations, they are nevertheless illustrative of attempts to effect funding for earmarks.
56 Clause 9 of House Rule XXI and Senate Rule XLIV provide similar, though not identical, definitions of earmarks.
For additional information, see CRS Report RL34462, House and Senate Procedural Rules Concerning Earmark
Disclosure
, by Sandy Streeter.
57 This same principle applies to conference reports and any accompanying joint explanatory statement.
58 H.Rept. 109-463.
59 H.R. 5384 (109th Cong.).
60 H.Amdt. 904, House debate, Congressional Record, vol. 152, part 7 (May 23, 2006), p. H3104.
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Limitation provisions have, however, been drafted to reduce the level of funds within the bill as
well. For example, the Senate committee report61 that accompanied the FY2007 Agriculture
appropriations bill62 contained a provision stating, “The Committee recommends $100,000 to
establish a farm-raised catfish grading system.” In response, an amendment was filed, but not
offered, during Senate floor consideration that proposed to insert the language, “Notwithstanding
any other provision of this Act, none of the funds appropriated or otherwise made available in this
Act may be available for a catfish grading system, and the total amount made available in this Act
is reduced by $100,000.”63 Had this entire amendment64 been adopted, it would have
simultaneously prevented the expenditure of funds set aside in the committee report for that
particularly activity and lowered the amount of budget authority in the act by $100,000.
Limitations as Funding Ceilings
It has generally been in order to restrict the availability of funds with a “not to exceed”
limitation.65 These types of limitations have been used to cap funds for certain accounts, items,
activities, titles, agencies, or to place ceilings on total expenditures.
Specific Accounts, Items, or Activities
Limitations have been used to restrict the availability of funds in a bill to not more than a total
amount for a certain purpose. The example below, which is a House amendment to an Interior
appropriations bill for FY1943, sought to limit the amount of funds in the bill that could be spent
on a specific set of activities related to the reproduction and procurement of certain types of
journal articles. 66
Notwithstanding any other provisions carried in this bill for printing and binding the total
amount to be expended for printing, binding, duplicating, mimeographing, lithographing, or
reproduction in any form or by any other device, and including the purchase of reprints of
scientific and technical articles published in periodicals and journals shall not exceed for
every such purpose included in this bill the sum of $450,000, and that the amounts estimated
therefore and not expended within this limitation shall be recovered into the Treasury of the
United States.
Limitations have also been used to place ceilings on the amount of funds that can be spent on
items or services obtained in a certain manner or from a specific source. The example below is a
House amendment to the FY1972 Defense appropriations bill, which sought to limit the amount
of funds that could be spent on a service obtained in a specific location. 67

61 S.Rept. 109-266.
62 H.R. 5384 (109th Cong.).
63 S.Amdt. 5198, Senate debate, Congressional Record, December 5, 2006, p. S11201.
64 Under Senate Rule 15, paragraph 3, amendments constructed in this manner could be divided at the request of a
Senator, unless a unanimous consent agreement prohibits such a division.
65 House Practice, chapter 4, § 51, p. 123.
66 Deschler’s Precedents, vol. 8, chapter 26, § 80.4.
67 Deschler’s Precedents, vol. 8, chapter 26, § 51.9.
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Of the funds made available by this Act for the alteration, overhaul and repair of naval
vessels, not more than $646,704,000 shall be available for the performance of such works in
Navy shipyards.
Finally, this type of limitation has been used to stipulate the maximum amount of funds that can
be spent on a purpose specifically authorized by law, even if that amount is lower than the level
of funds previously authorized. For example, the House amendment below to the FY1938
Agriculture appropriations bill identified an amount of budget authority not to be exceeded for the
procurement of passenger-carrying vehicles stipulated by the Federal Highway Act. 68
That not to exceed $45,000 of the funds provided for carrying out the provisions of the
Federal Highway Act of November 9, 1921 (U.S.C., title 23, secs. 21 and 23), shall be
available for the purchase of motor-propelled passenger-carrying vehicles necessary for
carrying out the provisions of said act, including the replacement of not to exceed one such
vehicle for use in the administrative work of the Bureau of Public Roads in the District of
Columbia.
Funding Ceilings on Total Expenditures
Limitations have also been used to place a ceiling on the total dollar amount that can be expended
under the budget authority provided by a particular appropriations act. The example below was a
House amendment to the FY1954 Mutual Security Administration appropriations bill. 69
Money appropriated in this bill shall be available for expenditure in the fiscal year ending
June 30, 1954, only to the extent that expenditures thereof shall not result in total aggregate
net expenditures of all agencies provided for herein beyond the total of $5,500,000,000.
A limitation provision may also place a ceiling on the total amount made available as a
percentage of the amount appropriated by an appropriations act. The below example of this type
of limitation was a Senate amendment to the FY1950 Treasury and Post Office appropriations
act.70
Provided further, That not to exceed 95 percent of the aggregate of the funds provided by
appropriations made by this act for the fiscal year ending June 30, 1950 shall be expended or
obligated by the department, agency or corporation to which such appropriations are made.
Transfer Authority
“Not to exceed” limitations have also been used to restrict transfer authority. This is illustrated
below by a House amendment to the FY1951 Labor and Federal Security Agency appropriations
bill. 71

68 Deschler’s Precedents, vol. 8, chapter 26, § 67.36.
69 Deschler’s Precedents, vol. 8, chapter 26, § 80.2.
70 Senate debate, Congressional Record, vol. 95, part 5 (May 11, 1949), p. 6036, as cited in Riddick’s Senate
Procedure
, p. 182.
71 Deschler’s Precedents, vol. 8, chapter 26, § 29.6.
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Not to exceed 5 percent of any appropriation in this title may be transferred to any other such
appropriation, but no such appropriation shall be increased by more than 5 percent by any
such transfer….
More general bans on transfers have also been accomplished by a limitation provisions. The
example below of this type of limitation was a House amendment to the FY1974 Treasury, Postal
Service, and General Government appropriations bill. 72
Provided further, That none of the funds available under this heading shall be available for
transfer to any other account nor for the funding of any activities other than those specifically
authorized under this heading.
Distinguishing Between Limitations and Legislative
Provisions

The precedents of the House and Senate distinguish between the limitations and legislative
provisions based upon both structure and substance. For a limitation to be allowed under the
House and Senate rules, it must first be phrased as a negative prohibition and not as an
affirmative direction. Second, it can only prohibit funding for activities, not the activities
themselves. The below House amendment to the FY1965 Defense appropriations act is an
example of a proper limitation in these respects, and was determined by the chair to be in order. 73
None of the funds appropriated herein shall be available for paying the cost of a conventional
powerplant for CVA-67.
However, while a limitation may be disqualified because of improper structure, the more salient
standard by which its admissibility is evaluated is its substance.74 This is because, even with
proper structure, a limitation can still be legislative in effect and therefore be prohibited under the
rules. A number of precedents75 have identified certain principles by which a provision can be
evaluated as to whether it is legislative and therefore not allowed under the rules, or merely
affects an agency’s funding and is therefore a proper limitation. In total, these attempts can be
distilled down to several broad concepts involving the scope of the provision, whether it waives
current law and agency discretion, whether it imposes new duties upon a government official or
agency, and whether the funding is provided based upon a contingency. In addition, whether or
not the recipient of the funds can be considered “federal” and, in the House, if the subject matter
of the limitation involves taxes or tariffs, are also factors that can have an impact on its
admissibility.

72 Deschler’s Precedents, vol. 8, chapter 26, § 64.20.
73 Deschler’s Precedents, vol. 8, chapter 26, § 64.6.
74 Cannon’s Precedents, vol. 7, § 1691.
75 Most notably, see House debate, Congressional Record, vol. 64, part 2 (January 8, 1923), pp. 1422-23, as cited in
Deschler’s Precedents, vol. 8, chapter 26, § 64.
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Scope
A proper limitation under the rules must only apply to the funds contained in the pending measure
and only operate for the duration of the period for which the appropriation is available for
obligation. If the scope of a limitation provision extends outside of the bill, it is categorically
legislative in nature because it would have the effect of changing existing law.76
Limitations cannot apply to other appropriations measures. During consideration of a FY1972
Supplemental appropriations bill in the House, the amendment below was the subject of a point of
order.
Provided, That none of the funds available for administrative or nonadministrative expenses
of the Federal Home Loan Bank Board shall be used to finance the relocation of all or any
part of the Federal Home Loan Bank from Greensboro, North Carolina, nor for the
supervision, direction or operation of any district bank for the fourth district other than at
such location.
The point of order against this amendment was ultimately sustained, because it sought to restrict
funds contained in any appropriations bill that provided funds for the Federal Home Loan Bank
Board, not only the pending measure. 77
Limitations in appropriations bills also may not extend outside the scope of the bill to limit an
authorization act or non-appropriated funding. When the FY1971 Foreign Assistance
appropriations act was considered in the House, the amendment below was objected to as being
legislative in nature.
No economic assistance shall be furnished under the Foreign Assistance Act of 1961, as
amended, to any country which sells, furnishes, or permits any ships under its economic
assistance to Cuba, so long as it is governed by the Castro regime, or to North Vietnam.
The chair sustained the point of order because this provision could have been construed as a
limitation on the Foreign Assistance Act and not merely the funds provided in the Foreign
Assistance appropriations bill. 78
A limitation is also not allowed if it applies either to funds already appropriated, or to funds in
future fiscal years. The example below was a House amendment to the FY1920 Army
appropriations bill. 79
That no part of any of the appropriations made herein nor any of the unexpended balances of
appropriations heretofore made for the support and maintenance of the Army or the Military
Establishment shall be expended for the purchase of real estate.

76 In addition, a limitation on the federal funds for a project, activity, or agency that would eventually be comingled
with non-federal funds is in order, even if the federal and non-federal funds would have to be accounted for separately
in order to carry out the limitation (House Manual, 111th Congress, §1053).
77 Deschler’s Precedents, vol. 8, chapter 26, § 64.3.
78 Deschler’s Precedents, vol. 8, chapter 26, § 64.4.
79 Hinds Precedents, vol. 1, § 1495.
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This amendment was determined by the chair to be legislative because it retroactively applied to
funds from previous fiscal years. A similar violation of the scope principle occurred during the
House consideration of the FY1937 Interior appropriations bill with the amendment below.
That hereafter, no part of any appropriation for these Indian schools shall be available for the
salary of any person teaching or advocating the legislative program of the American Liberty
League.
The point of order on this amendment was sustained by the chair for two reasons. First, the word
“hereafter” would make the provision permanent legislation because it would have applied to
funds after the current fiscal year. Second, the amendment’s scope included “any appropriation,”
not simply the funds contained in the bill itself. 80
Current Law
Limitations cannot waive actions that are mandated by law, and provisions structured like
limitations containing funding prohibitions notwithstanding existing law are often suspect. The
amendment below, which was offered during House consideration of the FY1938 District of
Columbia appropriations act, is an example of such a provision.
Provided, that this appropriation shall not be available for the payment of advertising in
newspapers published outside of the District of Columbia, notwithstanding the requirement
for such advertising provided by existing law.

This amendment was determined to be out of order by the chair, because the effect of the
provision would have been provide a waiver for an activity required by existing law. 81
Agency Discretion
While a limitation can impose a restriction on funds for part of the purpose for which they have
been authorized, it cannot change the degree of authority or discretion that an agency possesses
under current law. According to House Practice, “(A) point of order lies against language
enlarging or granting new discretionary authority, as well as language curtailing executive
discretion.”82 This concept is additionally explained in the passage below from Descher’s
Precedents
:
If the authorizing law permits the official to pursue courses A, B, C, and D, and the
appropriations measure provides funds permitting the official to pursue A, B, and C, the
measure is a proper limitation…. But if the appropriation has the effect of permitting or
requiring the official to pursue courses A, B, and E, then the measure has changed existing
law….83

80 Deschler’s Precedents, vol. 8, chapter 26, § 64.21.
81 Deschler’s Precedents, vol. 8, chapter 26, § 42.6.
82 House Practice, chapter 4, §53.
83 Deschler’s Precedents, vol. 8, chapter 26, § 51, p. 843.
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Expanding Discretion84
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. For example, the amendment below was offered during House consideration of the
FY1950 Military Establishment appropriations bill.
No part of the appropriations made in this act shall be available…and no moneys herein
appropriated for the Naval Establishment or made available therefore shall be used or
expended under contracts hereafter made for the repair, purchase, or acquirement, by or from
any private contractor, of any naval vessel, machinery, article, or articles that at the time of
the proposed repair, purchase, or acquirement can be repaired, manufactured, or produced in
each or any of the Government naval shipyards or arsenals of the Untied States, when time
and facilities permit and when in the judgment of the Secretary, such repair, purchase,
acquirement, or production would not involve an appreciable increase in cost to the
Government, except when the repair, purchase, or acquirement, by or from any private
contractor, would, in the opinion of the Secretary, be advantageous to the national defense.
The point of order against this amendment was sustained, because it would have provided the
Secretary with authority not granted in current law to determine if repair, purchase or production
with a private contractor would be advantageous to national defense. 85
Duties and Determinations
Generally, while a proper limitation may impose some incidental duties on the government
agency in the implementation of the restriction, a proper limitation cannot require a determination
be made, or action taken, that is not required of the agency in existing law. This distinction is
explained further in the passage below from Deschler’s Precedents.
Of course, the application of any limitation on an appropriation bill places some minimal
extra duties on federal officials, who, if nothing else, must determine whether a particular use
of funds falls within that prohibited by the limitation. But when an amendment, while
curtailing certain uses of funds carried in the bill, explicitly places new duties on officers of
the government or implicitly requires them to make investigations, compile evidence, or
make judgments and determinations not otherwise required of them by law, then it assumes
the character of legislation and is subject to a point of order ruling.86
Incidental Duties and Determinations Found in Existing Law
Minor duties required of the official or agency to carry out the limitation are permissible, as long
as they do not rise to the level of new duties outlined in the paragraph above. The below House
amendment to the FY1960 Defense appropriations bill is an example of a proper limitation in this
respect.

84 In some instances, the presiding officer has ruled that provisions narrowing executive branch discretion are
legislative, and are therefore out of order on appropriations legislation. See, Deschler’s Precedents, vol. 8, chapter 26, §
22.4, 50.8, 51.2, and 51.11.
85 Deschler’s Precedents, vol. 8, chapter 26, § 22.4.
86 Deschler’s Precedents, vol. 8, chapter 26, § 52, p. 879.
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None of the funds contained in this Title may be used to enter into a contract with any
person, organization, company or concern which provides compensation to a retired or
inactive military or naval general officer who has been an active member of the military
forces of the United States within 5 years of the date of enactment of this act.
The point of order on this amendment was overruled because the duties that it sought to impose
upon the executive branch in determining which of their contractors provide compensation to
certain retired or inactive members of the military were determined by the chair to be incidental.87
In addition to imposing incidental duties, the implementation of a limitation can be dependent
upon the performance of substantive duties that are already required by existing law. The below
House amendment to a FY1980 supplemental appropriations bill provides two examples of this
type of limitation.
Provided further, That none of the funds appropriated in this paragraph and made available
on October 1, 1980 shall be used to pay trade readjustment benefits under part I of
subchapter B of chapter 2 of Title I of the Trade Act of 1974 for any week to any individual
who is entitled to unemployment insurance benefits for such week;
Provided further, That none of the funds appropriated in this paragraph and made available
on October 1, 1980 shall be used to pay trade readjustment benefits under part I of
subchapter B of chapter 2 of title II of the Trade Act of 1974 to any individual in an amount
for any week in excess of the weekly unemployment insurance benefits which he received or
which he would have received if he applied for such insurance….
The point of order was sustained because the determinations that would need to be made by the
agency in order to comply with this provision would be the same as those required by existing
law. 88
New Duties and Determinations
Limitation provisions that require new determinations to be made by an agency or official not
required by existing law are not proper limitations. An example of such a provision is the below
House amendment to the FY1974 Departments of Labor, Health, Education, and Welfare
appropriations act.
Provided further, That none of the funds contained herein shall be available to make any
payment to a local educational agency under the Act of September 30, 1950, which is
attributable to children described in section 3(b) of the title 1 whose parents are employed on
Federal property outside the school district of such agency.
The chair sustained the point of order because it would have required a distinction be made
between children whose parents work within certain school districts, and children whose parents
work outside such school districts. This would have required a new determination not required by
current law to be made by the agency as to who comprised this new class of eligible program
recipients.89

87 Deschler’s Precedents, vol. 8, chapter 26, § 71.2.
88 Deschler’s Precedents, vol. 8, chapter 26, § 52.36.
89 Deschler’s Precedents, vol. 8, chapter 26, § 52.18.
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Limitation provisions that require the agency to perform new duties not required by existing law
are also not allowed. The House amendment below to the FY1982 Labor, and Health and Human
Services appropriations bill is an example of this.
That none of the funds appropriated under this paragraph shall be used to fund any grant to
any business, union, trade association, or other grantee which is not properly reviewed under
the peer review procedures used in fiscal year 1980. Furthermore, none of the funds
appropriated under this paragraph shall be used to provide grants to any business, union,
trade association or other grantee that does not have an established and effective program for
educating employers or employees about occupational hazards and disease.
The point of order against this amendment was sustained because it would have required the
agency to establish a new procedure for determining what programs are “established and
effective.” 90
Contingencies
Limitations subject to contingencies not existing in current law are generally not in order. In the
Senate, Rule XVI, paragraphs 2 and 4, stipulate that limitations subject to contingencies not
found in existing law are not in order in either committee or floor amendments to an
appropriations bill. In the House, while no rule explicitly prohibits limitations based on
contingencies,91 a precedent from 1904 stipulates that “the language of limitation prescribing the
conditions under which the appropriation may be used may not be such as, when fairly construed,
would change existing law.”92 A later precedent gives additional guidance that, “…whenever a
limitation is accompanied by the words ‘unless,’ ‘except,’ ‘until,’ ‘if,’ ‘however,’ there is grounds
to view the so-called limitation with suspicion, and in case of doubt as to its ultimate effect, the
doubt should be resolved on the conservative side.”93
A significant reason why limitations subject to contingencies not existing in current law are
typically not allowed is that they tend to have the effect of either altering agency discretion or
imposing new duties that must be performed in order to receive the funds. In addition, limitations
based on contingencies that require the recipient to act in violation of existing law in order to
receive funds are also essentially legislative.
Contingencies that Alter Agency Discretion
A limitation cannot require as a condition of receiving funds that an official or agency exercise
new discretion not granted in existing law. An example of this is the below House amendment to
a FY1909 Post Office appropriations bill.

90 Deschler’s Precedents, vol. 8, chapter 26, § 52.32.
91 In part, Rule XXI, clause 2(c) states, “An amendment to a general appropriations bill shall not be in order if changing
existing law, including an amendment making the availability of funds contingent on the receipt or possession of
information not required by law for the period of the appropriation.” This prohibits limitations that would provide
funding contingent upon future knowledge not required in existing law.
92 Hinds Precedents, vol. 4, § 3976.
93 House debate, Congressional Record, vol. 64, part 2 (January 8, 1923), p. 1423, as cited in Deschler’s Precedents,
vol. 8, chapter 26, § 64.
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Provided, that no part of this appropriation of $90,000 shall be expended for straps unless
letter carriers are permitted to use other straps than those supplied by the Government if they
prefer them, and buy and pay for them out of their own money and at no expense to the
government.
The chair sustained the point of order because it would have effectively provided the postmaster
general with the ability to allow letter carriers to choose their straps, which was not discretion
granted to the postmaster by existing law. 94
Limitations also cannot make the performance of an action not currently required by law a
condition on the use of funds. The below House amendment below to the FY1920 Army
appropriations bill is an example of such a provision.
Provided, That no part of any appropriation herein shall be used unless all former civilian
flying instructors who were dismissed on or about December 31, 1918 shall be reinstated on
application to their former positions as from the date of such dismissal up to and including
June 30, 1919.
The point of order on this amendment was sustained by the chair because it would have infringed
on agency discretion provided in law regarding the hiring of flight instructors. 95
Contingencies Requiring New Duties and Determinations
A limitation that makes funds contingent upon an official or agency making a new determination
not required by current law is not allowable. An example of this is the below House amendment
to the FY1938 Agriculture appropriations act.
Provided further, That no part of the money herein appropriated shall be paid to any State
unless and until, to the satisfaction of the Secretary of Agriculture, such State shall have
provided by law or regulation modern means and devices to safeguard against accidents and
the loss of life on highway projects within such state.
The chair sustained the point of order against this amendment because it would have conditioned
the funds in the bill upon a determination of the Secretary as to what would be “modern means
and devices,” which was a determination not required in existing law. 96
A limitation also cannot subject funds to a contingency that would require an official or agency to
perform new duties not mandated in current law. The below House amendment to a FY1959
Supplemental appropriations act is an example of this type of provision.
That no part of any appropriation made in this Act shall be used for land acquisition for any
access road to the public airport in the vicinity of the District of Columbia authorized by the
Act of September 7, 1950, until after the Administrator of the Federal Aviation Agency shall
have consulted with the Board of Supervisors of Fairfax County, Virginia, on the location of
such road and shall have had public hearings at a convenient location, or have afforded the
opportunity for such hearings, for the purpose of enabling persons through or contiguous to

94 Cannon’s Precedents, vol. 7, 1629.
95 Cannon’s Precedents, vol. 7, 1683.
96 Deschler’s Precedents, vol. 8, chapter 26, § 50.2.
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whose property will pass, to express any objections they may have to the proposed location
of such road.
The point of order against this amendment was sustained by the chair because it would have
required that the agency administrator to consult with the board of supervisors or hold hearings in
order to receive funds, which was an action not mandated by existing law. 97
Another example of an improper limitation based upon the performance of new duties is the
House amendment below to the FY1942 Interior appropriations bill.
Provided, That no part of the appropriation herein made shall be available until the agency
charged with the administration of the funds shall be satisfied, and shall so certify to the
Secretary of the Treasury that no person employed upon the work provided has been required
as a condition precedent to employment to join or not to join or to pay any sum to any
organization.
The point of order was sustained by the chair because it would have effectively created a new
requirement not in existing law that the agency certify conditions related to employment in order
to receive funds. 98
Contingencies Requiring Action in Violation of Existing Law
Finally, a limitation based on a contingency cannot mandate action in violation of existing law as
a condition of receiving funds. An example of such a limitation is the below House amendment to
the FY1968 Labor and Health, Education, and Welfare appropriations act.
Provided, That no part of this appropriation shall be made available to any local educational
agency in any State from funds appropriated to carry out such title II for the fiscal year 1969
until there has been made available from this appropriation to each local educational agency
in the State in whose schools the number of children counted under section 103(a)2 of such
title II exceeds 25 per centum of the total enrollment in such schools an amount at least equal
to it for the fiscal year 1968 from funds appropriated to carry out such title….
The point of order against this amendment was sustained by the chair because it would have
required the utilization of an apportionment formula as a condition of receiving funds that was
contrary to the formula mandated by existing law. 99
Federal Versus Non-federal Recipients
While the precedents cited above consistently indicate that a proper limitation cannot impose new
duties upon federal officials, they are less clear with respect to non-federal officials.100 In many
precedents regarding limitations that involve a mixture of state and federal officials, the focus of
the parliamentary ruling is only on whether a new duty contained within the limitation is imposed

97 Deschler’s Precedents, vol. 8, chapter 26, § 50.6.
98 Deschler’s Precedents, vol. 8, chapter 26, § 52.2.
99 Deschler’s Precedents, vol. 8, chapter 26, § 36.3.
100 See Deschler’s Precedents, vol. 8, chapter 26, § 53, pp. 934-936 for a discussion of this ambiguity.
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on any federal officials. The House amendment below to the FY1950 Interior appropriations bill
is an example of this ambiguity.
None of the funds herein appropriated may be used for the purchase of material for the
beginning of any new construction of electrical generating equipment, transmission lines, or
related facilities in any State unless approved by the governor, by the board, or commission
of the respective States having jurisdiction over such matters.101
The point of order against this amendment was sustained because it would have interfered with
the discretion of the federal officials involved in the decision making process with regards to
projects that are part of a federal program. No mention in the ruling was made, however, of the
effect of this limitation on state officials.
A further example of a limitation involving both federal and non-federal officials is also
illustrative of the type of ruling that often occurs in these instances. During House consideration
of the FY1978 Labor, and Health, Education, and Welfare appropriations bill, the below
amendment was offered.
None of the funds appropriated under this Act shall be used to pay for abortions or to
promote or encourage abortions, except where a physician has certified the abortion is
necessary to save the life of the mother.
The chair sustained the point of order against this amendment because some of the physicians
affected by this provision would have been federal officials. There was no discussion in the ruling
as to whether the imposition of the new duty to certify abortions on non-federal physicians only
would have been allowed. 102
House Practice provides some guidance when it states that, “Under the modern practice, it is not
in order to make the availability of funds in a general appropriation bill contingent upon a
substantive determinations by a state or local government official or agency that is not otherwise
required by existing law.”103 Moreover, it is in order to deny funds to a non-federal recipient that
is not in compliance with federal law; even when this denial is based upon a contingency, it does
not categorically cause such a provision to be considered legislative.104
An additional issue that has been addressed in some rulings involving new duties and federal
versus non-federal recipients is whether it violates current law with respect to the division
between local, state and federal officials or agencies in the administration of federal funds.105 The
ruling of the chair on the below House amendment to the FY1972 Agriculture and Environmental
and Consumer Protection appropriations act is illustrative of this type of rationale.
No part of the funds appropriated by this act shall be used for engineering or construction of
any stream channelization measure under any program administered by the Secretary of
Agriculture unless (1) such channelization is in a project a part of which was in the project
construction stage before July 1, 1971; or (2) the Governor of the State in which the

101 Deschler’s Precedents, vol. 8, chapter 26, § 53.3.
102 Deschler’s Precedents, vol. 8, chapter 26, § 53.5.
103 House Practice, chapter 4, § 54, p. 129.
104 Deschler’s Precedents, vol. 8, chapter 26, § 53. p. 950, as cited in House Practice, chapter 4, § 54, p. 129.
105 See Deschler’s Precedents, vol. 8, chapter 26, § 53. p. 935-936.
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channelization is to be located certifies to the Secretary of Agriculture, after consideration of
the environmental effects of such channelization, that such channelization is in the public
interest.
The point of order against this amendment was sustained because the chair determined that it
would confer new authority on a state official and would therefore be legislative. 106
Taxes and Tariffs
House rules regarding legislation containing a tax or tariff measure also effect the substance of
limitations that are allowed. Added in the 98th Congress, clause 5(a) of House Rule XXI stipulates
that legislation containing a tax or tariff measure that has not been reported by a committee with
jurisdiction over such matters, or an amendment that contains a tax or tariff measure offered
thereto, is subject to a point of order. An early ruling on the subject concerned a limitation
contained within the text of the Treasury, Postal Service and General Government appropriations
bill reported out of committee.
None of the funds appropriated in this Act may be used by the United States Customs
Service in the enforcement of any provision of law to the extent that such a provision would
permit agricultural products to enter the United States from Caribbean basin countries (as
defined in the Caribbean Basin Economic Recovery Act) duty free.107
In this case, the chair upheld the point of order because the effect of this provision would be to
cause additional duties on imports that were not required by existing law. A later ruling clarified
that “a limitation otherwise in order under paragraph 2(c) of Rule XXI can still be construed as a
‘tax or tariff measure’ where it can be conclusively shown that the imposition of the restriction on
IRS funding for the fiscal year will effectively and inevitably either preclude the IRS from
collecting revenues otherwise due and owing under provisions of the Internal Revenue Code or
require collection of revenue not legally due and owing.”108
The addition of subsection (b) to clause 5 of Rule XXI at the beginning of the 108th Congress
explicitly included limitation amendments on general appropriations bills that affect the
administration of a tax or tariff under the purview of this clause.109 That same year, a point of
order under this new rule was made against an amendment to the FY2004 Transportation and
Treasury appropriations act.
None of the funds appropriated by this act may be used to assess or collect any tax liability
attributable to the inclusion in gross income of amounts paid (from funds referred to in
subsection (b)) to any person as assistance on account of any property or business damaged
by, and for economic revitalization directly related to, the terrorist attacks on the United
States that occurred on September 11, 2001.110

106 Deschler’s Precedents, vol. 8, chapter 26, § 53.6.
107 House debate, Congressional Record, vol. 129, part 16 (October 27, 1983), pp. H29610-H29612, as cited in House
Manual, 111th Congress,
§ 1066.
108 House debate, Congressional Record, vol. 132, part 13 (August 1, 1986), pp. H18650-H19651, as cited in House
Manual, 111th Congress,
§ 1066.
109 House Rule XXI, clause 2(b), in House Manual, 111th Congress, § 1066.
110 House debate, Congressional Record, vol. 149, part 16 (September 9, 2003), pp. H21531-H21533, as cited in House
Manual, 111th Congress,
§ 1066.
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In interpreting the new rule, the chair determined that this amendment would impose a limitation
on funds that would prevent the collection of revenue otherwise legally due, and therefore upheld
the point of order.
Burden of Proof
When a point of order is raised against a limitation provision contained within an appropriations
bill or amendment, the burden of proof is on its proponent to demonstrate that it is a valid
limitation that does not effectively change agency discretion or impose new duties in order for it
to be allowed.111 In some circumstances, if a provision or amendment containing a limitation is
determined by the presiding officer to be legislative, it can potentially be revised in order to
comply with chamber rules, unless prevented by a special rule or unanimous consent agreement.
House
In the House, in the event of an objection, the proponent of a limitation amendment is responsible
for demonstrating that it is not legislative in nature.112 For example, the House amendment below
to the FY1981 Defense appropriations act was objected to during consideration on the grounds
that it imposed new duties on the Secretary of Defense.
Provided further, That no funds herein appropriated shall be used for the payment of a price
differential on contracts hereafter made for the purpose of relieving economic dislocations
other than contracts made by the Defense Logistics Agency and such other contracts of the
Department of Defense as may be determined by the Secretary of Defense pursuant to
existing laws and regulations as not to be inappropriate therefore by reason of national
security considerations.
The proponent of the amendment argued that this new provision would not require any new
duties of the Secretary, but was unable to cite any existing laws or regulations that required the
Secretary to make such substantive determinations related to national security and the payment of
price differentials. In the absence of the amendment’s proponent being able to cite provisions of
existing law that require such determinations to be made by the Secretary, the chair sustained the
point of order.113
Likewise, if a limitation provision is challenged as being legislative in nature, evidence that the
provision requires determinations already mandated by existing law can be a compelling reason
for a point of order to be overruled. In the example below, a provision contained in the FY1977
Labor and Health, Education, and Welfare appropriations act reported from the committee, an
objection was raised based upon the assertion that it creates a new duty for school administrators.

111 The burden of proof for points of order stemming from House Rule XXI, clause 5(a) is somewhat lower than for
other points of order against legislative provisions. In this case, the maker of the point of order must only demonstrate a
“textual relationship between the amendment and the administration of the Internal Revenue or tariff laws” (House
debate, Congressional Record, vol. 149, part 1 [January 7, 2003], p. H11). For a further explanation, see House
Manual, 111th Congress,
§ 1066.
112 Similarly, the appropriations committee bears the burden of proving that a provision, if challenged on the floor, is
not legislative. See, Deschler’s Precedents, vol. 8, chapter 26, § 25.27.
113 Deschler’s Precedents, vol. 8, chapter 26, § 22.25.
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None of the funds contained in this Act shall be used to require, directly or indirectly, the
transportation of any student to a school other than the school which is nearest the student’s
home, and which offers the courses of study pursued by such student, in order to comply
with title VI of the Civil Rights Act of 1964.
In defending this provision, the appropriations committee chair argued that the requirement that
the student be bussed only to the school closest to the student’s home placed no new duties on the
school administrator because the Equal Educational Opportunity Act of 1974 (P.L. 93-380)
already required that the school administrator make such a determination regarding the existence
and location of comparable schools closest to student’s homes. The committee chair also provided
evidence that the Equal Educational Opportunity Act required that the school administrator make
determinations regarding the appropriate grade level and type of education for each student. The
presiding officer subsequently overruled the point of order. 114
In the face of a point of order, the proponent of a limitation may also be called upon to provide
evidence that the provision does not interfere with discretion guaranteed under existing law to the
official or agency. The below House amendment to the FY1921 Agriculture appropriations bill
was challenged on the grounds that it would impermissibly narrow the discretion of the Secretary
of Agriculture.
Provided further, That no part of any appropriation in this act for the Forest Service shall be
expended on any national forest in which the fees charged for grazing shall be at a rate less
than 300 per cent of the existing rate.115
In this case, the point of order against the provision was sustained based on evidence provided by
a member who objected, that the Supreme Court had held that the Secretary of the Agriculture has
discretion to make rules and regulations for the preservation of the forests and to set the amount
of user fees to be assessed.
If the chair sustains a point of order against an amendment as being legislative in nature, a
member may be able to offer a new (redrafted) amendment that is compliant with House rules, if
not prevented by a special rule or unanimous consent agreement. An additional option, in some
circumstances, is that the amendment’s sponsor ask unanimous consent to modify such
amendment during debate.116 While obtaining unanimous consent for such a request may be
difficult, if granted, it could allow the proponent to have an opportunity to revise the amendment
so that it would conform to House rules.
Senate
In the Senate, paragraph 6 of Rule XVI mandates that points of order against restrictions on the
expenditure of funds be “construed strictly and, in the case of doubt, in favor of the point of
order.”117 This creates a procedural context similar to that of the House, where the presiding
officer is constrained to uphold a point of order against a limitation in the absence of evidence

114 Deschler’s Precedents, vol. 8, chapter 26, § 65.26.
115 Cannon’s Precedents, vol. 7, § 1685.
116 Deschler’s Precedents, vol. 9, chapter 27, § 21.1-3.
117 Senate Rule XVI, paragraph 6, Senate Manual, p. 15.
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that demonstrates that it is proper and not legislative.118 If the amendment’s sponsor wishes to
modify his or her amendment, this must occur before action has occurred or the presiding officer
has ruled.119 A member could also offer a new (redrafted) amendment that was compliant with
Senate rules, as long as there was no unanimous consent agreement governing consideration of
the pending measure that precluded such action.
Author Contact Information

Jessica Tollestrup

Analyst on Congress and the Legislative Process
jtollestrup@crs.loc.gov, 7-0941



118 See, for example, Senate debate, Congressional Record, vol. 116, part 15 (June 22, 1970), pp. 20813-20815, as cited
in Riddick’s Senate Procedure, p. 182.
119 Action includes a disposition on the amendment, an amendment to the amendment successfully being agreed to, the
ordering of the yeas and nays on the amendment, and entering into a unanimous consent agreement for a vote on the
amendment. See Riddick’s Senate Procedure, pp. 65, 186.

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