Regular Appropriations Acts: Selected Statutory Interpretation Issues

September 3, 2021 R46899

Regular Appropriations Acts: Selected
September 3, 2021
Statutory Interpretation Issues
Sean M. Stiff
The Constitution’s Appropriations Clause provides that “No Money shall be drawn from the
Legislative Attorney
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.
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

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
A 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

1 GOV’T ACCOUNTABILITY OFF., A GLOSSARY OF TERMS USED IN THE FEDERAL BUDGET PROCESS, GAO-05-734SP, at 13
(2005) [hereinafter GAO GLOSSARY].
2 For an overview of rules and presumptions generally used in interpreting federal statutes, see CRS Report R46484,
Understanding Federal Legislation: A Section-by-Section Guide to Key Legal Considerations, by Victoria L. Killion
[hereinafter Understanding Federal Legislation].
3 See, e.g., Gross v. FBL Fin. Serv., Inc., 557 U.S. 167, 175–76 (2009) (interpreting Age Discrimination in
Employment Act of 1967) (“Statutory construction must begin with the language employed by Congress and the
assumption that the ordinary meaning of that language accurately expresses the legislative purpose.” (internal quotation
marks omitted)).
4 See, e.g., California v. Trump, 963 F.3d 926, 944 (9th Cir. 2020) (“Section 8005 does not define ‘unforeseen.’
Therefore, we start by considering the ordinary meaning of the word.”) (interpreting appropriations act provision
allowing the Department of Defense to transfer funds between appropriations based on “unforeseen” military
requirements), vacated sub nom. Biden v. Sierra Club, No. 20-138, 2021 WL 2742775 (U.S. July 2, 2021).
5 See, e.g., Expenditure of Appropriated Funds for Informational Video News Releases, 28 Op. O.L.C. 109, 119 (2004)
(looking first to ordinary meaning to interpret an appropriations act general provision prohibiting the use of any part of
any appropriation for “publicity or propaganda purposes”).
6 Compare Taniguchi v. Kan Pac. Saipan, Ltd., 566 U.S. 560, 569 (2012) (“Based on our survey of the relevant
dictionaries, we conclude that the ordinary or common meaning of ‘interpreter’ does not include those who translate
writings. Instead, we find that an interpreter is normally understood as one who translates orally from one language to
another.”) (statute authorizing a federal judge or clerk of court to tax the “compensation of interpreters” as litigation
costs), with United States v. McIntosh, 833 F.3d 1163, 1175–76 (9th Cir. 2016) (consulting dictionary definitions of the
word “implement” to construe appropriations act provision barring the Department of Justice from using appropriated
funds to prevent specified States from “implementing” state medical marijuana laws); see also New Prime Inc. v.
Oliveira, 139 S. Ct. 532, 539 (2019) (looking to dictionary definitions roughly contemporaneous with a statute’s
enactment in 1925 rather than a dictionary edition published in 2014 to interpret the statutory phrase “contracts of
employment”).
7 See, e.g., King v. Burwell, 576 U.S. 473, 486 (2015) (tax credit) (“[W]hen deciding whether the language” of a statute
“is plain, we must read the words in their context and with a view to their place in the overall statutory scheme.”
(internal quotation marks omitted)); Koons Buick Pontiac GMC, Inc. v. Nigh, 543 U.S. 50, 60 (2004) (Truth in
Lending Act statutory damages provision) (“A provision that may seem ambiguous in isolation is often clarified by the
remainder of the statutory scheme.” (internal quotation marks omitted)).
8 See, e.g., B-230110, 1988 WL 227660, at *1–2 (Comp. Gen. Apr. 11, 1988) (interpreting the phrase “this Act,” as
used in a statute that consolidated for enactment what had been drafted as stand-alone regular appropriations bills, as
referring only to “the individual appropriation act in which [the phrase] appears before incorporation into the
Continuing Resolution”).
9 Compare McDonald v. United States, 279 U.S. 12, 18, 23 (1929) (act amending statutes governing petitions for
citizenship) (refusing to read proviso as only a limitation on its principal clause), with Republic of Iraq v. Beaty, 556
U.S. 848, 857–58 (2009) (reading a similar conclusion with respect to proviso in a supplemental appropriations act).
10 See, e.g., Mullis v. United States, 230 F.3d 215, 220–21 & 220 n.3 (6th Cir. 2000) (consulting committee reports and
floor statements when examining effect of appropriations act general provision prohibiting the Bureau of Alcohol,
Tobacco, and Firearms from processing an application of a convicted felon seeking relief from provisions of federal
law barring the possession of a firearm or ammunition).
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commentary on the bill that became law might be used to confirm the meaning that is otherwise
evident in the statutory text itself,11 or it might be used to clarify the meaning of an ambiguous
statute.12 Regardless of the type of statute at issue, whether appropriating or not, the ultimate goal
of statutory interpretation is to determine congressional intent.13
However, regular appropriations acts also differ from other statutes in important respects, in form
but more importantly in substance. Regular appropriations acts look different from most other
federal statutes, using what commentators have called a “maverick style” of organization.14 Their
chief function is the granting of appropriations, a constitutionally unique legal authority that is
necessary for an agency to draw funds from the Treasury to pay the government’s debts.15
Reinforcing this focus on funding government programs, chamber rules discourage Members of
Congress from including “legislation” in a regular appropriations act, creating, at least as a
procedural matter, a “separation between policy and money decisions.”16 As a rule, the primary
legal authority provided in a regular appropriations act is qualified in its duration—most of its
appropriations have an expiration date. Regular appropriations acts are also accompanied by
detailed committee reports. Sometimes on their own and sometimes in conjunction with
references in the statute to the committee or other legislative reports, these reports state that the
funds within an appropriation should be allocated in a certain way, issue directives to agencies, or
otherwise exercise oversight over the agencies and programs that the act funds.
These differences in the form and function of regular appropriations acts and the context in which
Congress considers appropriations acts affect the types of interpretive questions that such acts
raise. Moreover, because courts perceive differences between regular appropriations and other
statutes, courts may conclude that on certain questions, congressional intent is most accurately
gauged using rules of interpretation tailored to appropriations acts. After discussing the typical
format of a regular appropriations act, this report examines frequently recurring questions of
statutory interpretation raised by such acts. This report compiles the terms it defines in a glossary
Appendix.

11 See, e.g., Small v. United States, 544 U.S. 385, 393 (2006) (construing statute prohibiting a felon “convicted in any
court” from possessing a firearm as applying only to domestic convictions and stating that statute’s “lengthy legislative
history confirms” that foreign convictions would not trigger the firearms disability).
12 See, e.g., Milner v. Dep’t of the Navy, 562 U.S. 562, 572 (2011) (Kagan, J.) (“Those of us who make use of
legislative history believe that clear evidence of congressional intent may illuminate ambiguous text.”); but see
Cherokee Nation of Okla. v. Leavitt, 543 U.S. 631, 647 (2005) (Scalia, J., concurring in part) (disagreeing with the
Court’s use of a committee report to interpret the Indian Self-Determination and Education Assistance Act and arguing
that the report “at most indicates the intent of one Committee of one Chamber of Congress”).
13 See United States v. Mitchell, 109 U.S. 146, 150 (1883) (stating that the “whole question” of whether Congress had
used an appropriations act to amend substantive law “depends on the intention of congress as expressed in the
statutes”).
14 LAWRENCE FILSON & SANDRA STROKOFF, THE LEGISLATIVE DRAFTER’S DESK REFERENCE, §§ 33.2 & 33.7 (2d ed.
2008) (distinguishing the “maverick style” of “general appropriations acts” from the “four principal Federal Drafting
styles”).
15 See U.S. CONST. art. I, § 9, cl. 7 (“No Money shall be drawn from the Treasury, but in Consequence of
Appropriations made by Law”).
16 See CRS Report R41634, Limitations in Appropriations Measures: An Overview of Procedural Issues, by James V.
Saturno, at 1, 3 [hereinafter Limitations in Appropriations Measures].
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Anatomy of a Statute Making Regular
Appropriations
This report addresses a type of statute referred to as a regular appropriations act, which is only
one of a number of appropriations acts that Congress might enact in a given year. A regular
appropriations act provides funding for the continued operation of federal departments, agencies,
and government activities for a particular fiscal year.17 As used in this report, the term excludes
appropriations acts that make only continuing, deficiency, or supplemental appropriations.18 It
also does not describe those laws, other than appropriations acts, that provide budget authority.19
Budget authority is statutory authority to incur financial obligations on behalf of the United States
that will result in an outlay of federal funds.20 Usually, this authority takes the form of an
appropriation, which is statutory authority to both obligate the government and make payments
out of the Treasury.21 After enactment of such funding authority, the Department of the Treasury
(Department) issues appropriation warrants, which are “evidence of Congressional action to fund
programs” and establish the money that an “entity is authorized to withdraw from the General
Fund of the U.S. Government.”22 The Department establishes appropriations accounts
corresponding to each appropriation.23 Agencies use accounts to reflect their use of
appropriations.
Under the current structure of the House and Senate Appropriations Committees, there are 12
regular appropriations acts, each drafted annually by a subcommittee with jurisdiction over
specified agencies and programs.24 While the Appropriations Committees might typically first
draft and mark up the different regular appropriations bills as stand-alone measures, Congress
increasingly enacts the regular appropriations bill into law by combining one or more into a
measure that is designated as, variously, a “consolidated” or “omnibus” appropriations act.25
Modern-day statutes making regular appropriations26 typically include up to four basic
components: prefatory matter, so-called “preceding matter,” unnumbered paragraphs, and general

17 See GAO GLOSSARY, supra note 1, at 13.
18 See id. at 13–14.
19 Cf. GOV’T ACCOUNTABILITY OFF., FEDERAL BUDGET: GOVERNMENT-WIDE INVENTORY OF ACCOUNTS WITH SPENDING
AUTHORITY AND PERMANENT APPROPRIATIONS, FISCAL YEARS 1995 TO 2015, GAO-19-36, at 8 fig. 2 (2018) (comparing
discretionary and mandatory spending).
20 Maine Cmty. Health Options v. United States, 140 S. Ct. 1308, 1322 (2020) (“Budget authority is an agency’s power
provided by Federal law to incur financial obligations that will result in immediate or future outlays of government
funds.” (internal citation and quotation marks omitted)).
21 Andrus v. Sierra Club, 442 U.S. 347, 360 n.18 (1979).
22 See DEP’T OF THE TREASURY, 1 TREASURY FIN. MANUAL § 2025.10; see also 31 U.S.C. § 3323(a) (directing that “the
Secretary of the Treasury may pay out money only against a warrant”).
23 See, e.g., DEP’T OF THE TREASURY, FEDERAL ACCOUNT SYMBOLS AND TITLES (FAST) BOOK: AGENCY IDENTIFIER
CODES, ii (July 2021), https://fiscal.treasury.gov/files/fast-book/fastbook-july-2021.pdf (“Receipt, appropriation, and
other fund account symbols and titles are assigned by the Department of the Treasury . . . consistent with the principles
and standards prescribed by the Comptroller General of the United States.”); see also GEN. ACCT. OFF., POLICY AND
PROCEDURES MANUAL FOR GUIDANCE OF FEDERAL AGENCIES, tit. 7, § 2.1 (May 1993).
24 CRS Report R42388, The Congressional Appropriations Process: An Introduction, coordinated by James V. Saturno,
at 12.
25 See CRS Report RL32473, Omnibus Appropriations Acts: Overview of Recent Practices, by James V. Saturno, at 3
tbl. 1.
26 Subsequent discussion in this report is based on Congressional Research Service review of statutes making regular
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provisions. Moreover, while the text of committee and other legislative reports that are drafted to
accompany regular appropriations acts do not appear within the four corners of the act, such
reports are important products of the legislative process.
Prefatory Matter
A statute making regular appropriations begins with statutorily prescribed prefatory matter. First,
the act’s title will indicate the fiscal year and, in general terms, the objects for which the act
makes appropriations.27 Second, the measure will contain an enacting clause if it is styled as an
act28 or a resolving clause if it is styled as a joint resolution.29
Preceding Matter
The next component of a statute making regular appropriations is a collection of what in recent
fiscal years30 has been styled as numbered sections that precede the portions of the act that make
particular appropriations (“preceding matter”).31 When they appear, preceding matter provisions
tend to appear in the same form from year to year,32 but whether a statute making regular
appropriations includes a particular preceding matter provision depends on the content of the act,

appropriations for Fiscal Year (FY) 2000 and thereafter. Thus, this report’s use of the modifier “modern-day” should be
understood to refer to the time period FY2000 through FY2021.
27 See 1 U.S.C. § 105 (“The style and title of all Acts making appropriations for the support of Government shall be as
follows: ‘An Act making appropriations (here insert the object) for the year ending September 30 (here insert the
calendar year).’”). Beginning with FY1977, appropriations acts have made appropriations for fiscal years ending
September 30. Previously, a fiscal year ended on June 30 of a calendar year. See Congressional Budget Act of 1974,
Pub. L. No. 93-344, § 506(a)–(b), 88 Stat. 297, 322 (1974). The style and title of acts making appropriations for
FY1975 and prior fiscal years therefore track this earlier fiscal-year calendar. See, e.g., Foreign Assistance and Related
Programs Appropriations Act, 1972, Pub. L. No. 92-242, 86 Stat. 48, 48 (1972) (“Making appropriations for Foreign
Assistance and related programs for the fiscal year ending June 30, 1972, and for other purposes.”). Acts making
appropriations for FY1976 included funding for an additional three-month period, after June 30, 1976, to enable
transition to the new fiscal year calendar. See, e.g., Department of Transportation and Related Agencies Appropriation
Act, 1976, Pub. L. No. 94-134, 89 Stat. 695, 695 (1975) (“Making appropriations for the Department of Transportation
and related agencies for the fiscal year ending June 30, 1976, and the period ending September 30,1976, and for other
purposes”).
28 See 1 U.S.C. § 101; see also Killion, Understanding Federal Legislation, supra note 2, at 19.
29 See 1 U.S.C. § 102; see also Consolidated Appropriations Act, 2019, Pub. L. No. 116-6, 133 Stat. 13, 13 (2019)
(joint resolution); CONSTITUTION, JEFFERSON’S MANUAL, AND RULES OF THE HOUSE OF REPRESENTATIVES OF THE
UNITED STATES ONE HUNDRED SIXTEENTH CONGRESS, H.DOC. NO. 116-177, § 397 (2021) [hereinafter RULES OF THE
HOUSE] (A joint resolution “is a bill so far as the processes of the Congress in relation to it are concerned,” and, except
for a joint resolution proposing a constitutional amendment, “are sent to the President for approval and have the full
force of law” when enacted. “They are used for what may be called the incidental, unusual, or inferior purposes of
legislating,” including the making of certain appropriations).
30 The use of numbered sections to delineate preceding matter is more common in more recent statutes making regular
appropriations, in particular those pertaining to FY2008 or thereafter. Before then usually only a statement of
appropriations followed the act’s prefatory matter and preceded its appropriating provisions. Preceding matter is the
product of more complex appropriations act structure, and in particular Congress’s use of a consolidated or omnibus
measure to enact two or more regular appropriations acts.
31 See, e.g., Further Consolidated Appropriations Act, 2020, Pub. L. No. 116-94, Div. A., tit. II, § 222(a), 133 Stat.
2534, 2582 (2019) (referring to “the matter preceding division A of this consolidated Act” in directing certain transfers
(emphasis added)).
32 But see Consolidated and Further Continuing Appropriations Act, 2015, Pub. L. No. 113-235, §§ 9–11, 128 Stat.
2130, 2133–35 (2014) (preceding matter provisions appropriating funds, amending provisions of law relating to the
Northern Marianas Islands, and directing a study of electric rates in insular areas).
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its method of enactment, and whether the act combines two or more regular appropriations bills.33
Typical preceding matter include:
 In measures that consolidate several appropriations bills, a provision regarding
the meaning of the phrase “this Act.”34
 A statement of appropriations, reciting that sums in the Act are appropriated for a
designated fiscal year out of any money in the Treasury not otherwise
appropriated.35
 A provision regarding the availability or rescission of funds designated by
Congress for Overseas Contingency Operations36 or as an emergency
requirement.37
 A provision reciting that the explanatory statement printed by the Chair of the
House Committee on Appropriations, or another designee, on a specified date,
shall have the same effect for funds allocation and act implementation “as if it
were a joint explanatory statement of a committee of conference.”38
Unnumbered Paragraphs
Following any preceding matter are the regular appropriations acts themselves, which begin with
unnumbered paragraphs. These paragraphs are the primary provisions of the act that provide an
agency with the budget authority that allows federal officers and employees to incur financial
obligations on behalf of the United States that will result in an outlay of federal funds.39
The unnumbered paragraphs of a given regular appropriations act will typically be organized by
title, each reflecting, in the case of executive branch agencies, funding for a given agency40 or
related functions of an agency.41 If a statute making regular appropriations enacts two or more

33 See, e.g., infra “Preceding Matter Concerning the Explanatory Statement.”
34 See, e.g., Consolidated and Further Continuing Appropriations Act, 2012, Pub. L. No. 112-55, § 3, 125 Stat. 552, 552
(2011) (“Except as expressly provided otherwise, any reference to ‘this Act’ contained in any division of this Act shall
be treated as referring only to the provisions of that division.”).
35 See, e.g., Consolidated Appropriations Act, 2017, Pub. L. No. 115-31, § 5, 131 Stat. 135, 137 (2017).
36 See, e.g., Consolidated Appropriations Act, 2014, Pub. L. No. 113-76, § 6, 128 Stat. 5, 7 (2014).
37 See, e.g., Consolidated and Further Continuing Appropriations Act, 2015, Pub. L. No. 113-235, § 6(a), 128 Stat.
2130, 2133 (2014).
38 See, e.g., Consolidated Appropriations Act, 2008, Pub. L. No. 110-161, § 4, 121 Stat. 1844, 1846 (2007). Certain
National Defense Authorization Acts included a similar provision. See Carl Levin and Howard P. “Buck” McKeon
National Defense Authorization Act for Fiscal Year 2015, Pub. L. No. 113-291, § 4, 128 Stat. 3292, 3312-13 (2014);
National Defense Authorization Act for Fiscal Year 2014, Pub. L. No. 113-66, § 4, 127 Stat. 672, 689 (2013); Duncan
Hunter National Defense Authorization Act for Fiscal Year 2009, Pub. L. No. 110-417, § 4, 122 Stat. 4356, 4372
(2008).
39 Maine Cmty. Health Options v. United States, 140 S. Ct. 1308, 1322 (2020) (“Budget authority is an agency’s power
provided by Federal law to incur financial obligations that will result in immediate or future outlays of government
funds.” (internal citation and quotation marks omitted)).
40 See, e.g., Energy and Water Development Appropriations Act, 2004, Pub. L. No. 108-137, tit. I, 117 Stat. 1827, 1827
(2003) (regular appropriations act title making appropriations for the civil functions of the Army Corps of Engineers).
41 See, e.g., Consolidated Appropriations Act, 2014, Pub. L. No. 113-76, Div. C, tit. II, 128 Stat. 5, 89 (2014) (regular
appropriations act title making appropriations for service branch and Department of Defense operations-and-
maintenance expenses).
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regular appropriations acts together,42 the practice is that the measure will be drafted so that each
such act will appear in the statute in its own division.43
Appropriations are said to be made “under” a heading.44 A heading is a phrase in the
appropriations act that immediately precedes an unnumbered paragraph. The heading names the
appropriation or other authority contained in the paragraph.45 The heading may also include one
of a handful of frequently recurring parenthetical statements, some required by chamber rules,46
which serve to highlight that the text of the unnumbered paragraph contains particular types of
legal authorities.47
One of the most frequently recurring of these parenthetical heading statements reads “Including
Transfer of Funds.”48 A transfer shifts budget authority in one appropriation or fund account to
another.49 An agency needs statutory authority to transfer budget authority.50 Statutory authority to
make a transfer is called transfer authority.51 Thus, this parenthetical heading statement usually
denotes that the unnumbered paragraph includes transfer authority, permitting agencies to make
discretionary transfers, subject to the terms of the transfer authority.52 Occasionally, though, the

42 For a discussion of the jurisdictional divisions between subcommittee of the Appropriations Committees, see CRS
Report RL31572, Appropriations Subcommittee Structure: History of Changes from 1920 to 2021, by James V. Saturno
(discussing House and Senate committee and subcommittee structure).
43 See, e.g., Department of Defense and Labor, Health and Human Services, and Education Appropriations Act, 2019
and Continuing Appropriations Act, 2019, Pub. L. No. 115-245, § 2, 132 Stat. 2981, 2981 (2018) (table of contents).
44 See, e.g., Reuben Quick Bear v. Leupp, 210 U.S. 50, 77 (1908) (“the appropriation of the ‘treaty fund’ has always
been under the heading, ‘Fulfilling Treaty Stipulations and Support of Indian Tribes’” (emphasis added)); Consolidated
Appropriations Act, 2020, Pub. L. No. 116-93, Div. A, tit. VIII, § 8039, 133 Stat. 2317, 2344 (2019) (“Of the funds
appropriated to the Department of Defense under the heading ‘Operation and Maintenance, Defense-Wide’, not less
than $12,000,000” shall be made available for certain purposes (emphasis added)).
45 See, e.g., Continuing Appropriations and Military Construction, Veterans Affairs, and Related Agencies
Appropriations Act, 2017, and Zika Response and Preparedness Act, Pub. L. No. 114-223, Div. A, tit. II, 130 Stat. 857,
875 (2016) (“Grants for Construction of Veterans Cemeteries”).
46 See, e.g., CRS Report R44124, Appropriations Report Language: Overview of Components and Development, by
Kevin P. McNellis, at 22 (describing House rules requiring headings for rescissions and transfers of unexpended
balances) [hereinafter Appropriations Report Language].
47 The parenthetical heading statements serve to highlight the presence of authority in the unnumbered paragraph itself
but are not necessary, as a legal matter, for the paragraph to provide a particular type of authority or limitation. For
example, Congress has written an unnumbered paragraph to function as a “limitation on obligations,” even though the
paragraph’s heading did not reference a limitation. Compare Consolidated Appropriations Act, 2004, Pub. L. No. 108-
199, Div. F, tit. I, 118 Stat. 3, 313 (2004) (Emergency Preparedness Grants) (imposing a limitation on amounts that
could be made available in FY2004 for obligation from a permanent appropriation but lacking any reference in the
paragraph’s heading to a limitation on obligations), with Consolidated Appropriations Act, 2021, Pub. L. No. 116-260,
Div. L, tit. I (2020) (Emergency Preparedness Grants) (imposing a similar limitation on amounts that could be made
available for obligation in FY2021 from the same permanent appropriation and including a heading reference to
“limitation on obligations”).
48 See, e.g., Consolidated Appropriations Act, 2018, Pub. L. No. 115-141, Div. D, tit. III, 132 Stat. 348, 523 (2018)
(Naval Reactors).
49 See GAO GLOSSARY, supra note 1, at 95.
50 See 31 U.S.C. § 1532 (“An amount available under law may be withdrawn from one appropriation account and
credited to another or to a working fund only when authorized by law.”).
51 CRS Report R46417, Congress’s Power Over Appropriations: Constitutional and Statutory Provisions, by Sean M.
Stiff, at 34 [hereinafter Power Over Appropriations].
52 See, e.g., Agricultural, Rural Development, Food and Drug Administration, and Related Agencies Appropriations
Act, 2002, Pub. L. No. 107-76, tit. I, 115 Stat. 704, 712 (2001) (Animal and Plant Health Inspection Service Salaries
and Expenses) (noting parenthetically that the appropriation includes “transfers of funds”).
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parenthetical heading statement might signal that in enacting the statute, Congress, itself, has
directed that a transfer be made, in which case the transfer is not discretionary.53
Another common parenthetical heading statement is “Including Rescission of Funds.”54 A
rescission cancels the availability of existing, unexpired budget authority that was provided in a
prior statute.55 Thus, this parenthetical heading statement indicates that in addition to providing
new budget authority, the unnumbered paragraph following the heading rescinds all or part of the
unobligated balance of budget authority that was provided in a prior statute.56
For each fiscal year Congress enacts unnumbered paragraphs that are preceded by a parenthetical
heading statement that reads “Liquidation of Contract Authorization.”57 Congress uses this
parenthetical heading statement to flag an unnumbered paragraph that discharges obligations
entered into using a type of budget authority called contract authority.58 Contract authority only
permits the making of a promise to pay in advance of appropriations.59 Such unnumbered
paragraphs provide liquidating appropriations, which are made only to pay the obligations
already incurred using contract authority.60
In addition, certain unnumbered paragraphs appear under headings that include the parenthetical
phrase “Limitation on Obligations.” Such unnumbered paragraphs limit the amount or type of
obligations that an agency may incur under budget authority provided in another statute, such as
in a permanent appropriation61 or through contract authority provided in an authorizing statute.62

53 See, e.g., Consolidated Appropriations Act, 2020, Pub. L. No. 116-93, Div. B, tit. I, 133 Stat. 2317, 2388 (2019)
(Periodic Censuses and Programs) (“That within the amounts appropriated, $3,556,000 shall be transferred to the
‘Office of Inspector General’ account for activities associated with carrying out investigations and audits related to the
Bureau of the Census”); see also United States Capitol Police—Current Rate for Operations Under the 2007
Continuing Resolution, B-308773, 2007 WL 136313, at *4 (Comp. Gen. Jan. 11, 2007) (explaining that for purposes of
calculating a current rate of operations under a continuing resolution, an agency must distinguish between a transfer
that the agency makes “pursuant to statutory authority but at its discretion” and a transfer made because the transfer is
“directed by law”).
54 See, e.g., Consolidated Appropriations Act, 2018, Pub. L. No. 115-141, Div. D, tit. III, 132 Stat. 348, 523 (2018)
(Defense Nuclear Nonproliferation).
55 See GAO GLOSSARY, supra note 1, at 85.
56 See, e.g., Further Consolidated Appropriations Act, 2020, Pub. L. No. 116-94, Div. D., tit. I, 133 Stat. 2534, 2686
(2019) (Bureau of Land Management, Management of Lands and Resources) (“Of the unobligated balances from
amounts made available under this heading in fiscal year 2017 or before, $19,000,000 is permanently rescinded.”).
57 See, e.g., Consolidated Appropriations Act, 2016, Pub. L. No. 114-113, Div. L, tit. I, 129 Stat. 2242, 2841 (2015)
(Grants-in-Aid for Airports).
58 See GAO GLOSSARY, supra note 1, at 21.
59 See Nat’l Ass’n of Reg’l Councils v. Costle, 564 F.2d 583, 586 (D.C. Cir. 1977) (“Contract authority is legislative
authorization for an agency to create obligations in advance of an appropriation. It requires a subsequent appropriation
or some other source of funds before the obligation incurred may actually be liquidated by the outlay of monies.”).
Contract authority is not the general ability of an agency to enter into contracts in order to carry out programs; rather, it
is statutory authority to enter into obligations in advance of available appropriations. See id.
60 See GAO GLOSSARY, supra note supra note 1, at 65.
61 Congress has used this parenthetical heading statement for an unnumbered paragraph that related to the Hazardous
Materials Emergency Preparedness Fund, a permanent appropriation. See, e.g., 49 U.S.C. § 5116(h); Consolidated
Appropriations Act, 2021, Pub. L. No. 116-260, Div. L, tit. I (2020) (Emergency Preparedness Grants).
62 See, e.g., Consolidated Appropriations Act, 2017, Pub. L. No. 115-31, Div. K, tit. I, 131 Stat. 135, 735 (2017)
(Federal-Aid Highways) (“Funds available for the implementation or execution of Federal-aid highway and highway
safety construction programs authorized under titles 23 and 49, United States Code, and the provisions of the Fixing
America’s Surface Transportation Act shall not exceed total obligations of $43,266,100,000 for fiscal year 2017.”).
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The unnumbered paragraph follows the heading. As noted above, the chief function of the
paragraph is to provide budget authority. Congress usually defines the authority provided by a
particular grant of budget authority by defining its “availability” along three dimensions: an
amount of budget authority, the object or objects for which that budget authority is provided, and
the time period for which the recipient agency may obligate the budget authority.
Congress might write single-sentence paragraphs.63 Perhaps more commonly, Congress writes
unnumbered paragraphs to follow a principal clause/proviso structure. In this form, the paragraph
begins with a principal clause setting forth an amount of budget authority that the paragraph
makes available.64 Set off from the principal clause by means of a colon are one or more provisos,
which are clauses that begin with the italicized word “Provided.” The first proviso following a
principal clause will begin “Provided, that.” Any subsequent provisos relating to the same
principal clause will begin “Provided further, that.” A proviso usually states conditions that apply
to the allocation65 or obligation66 of the budget authority provided in the paragraph’s principal
clause.67
General Provisions
Following the unnumbered paragraphs that provide budget authority are general provisions.68
They often appear as numbered sections. Relevant general provisions might appear in the same
title69 as the unnumbered paragraphs to which they relate or in separate titles of the same regular
appropriations act.70 Recent Financial Services and General Government appropriations acts
contain general provisions that, by their terms, apply “government-wide.”71 It is possible for

63 See, e.g., Consolidated and Further Continuing Appropriations Act, 2015, Pub. L. No. 113-235, Div. A., tit. I, 128
Stat. 2130, 2144 (2014) (State Mediation Grants) (“For grants pursuant to section 502(b) of the Agricultural Credit Act
of 1987, as amended (7 U.S.C. 5101–5106), $3,404,000.”).
64 See, e.g., id., Div. D, tit. IV, 128 Stat. at 2330 (“For expenses necessary of the [Nuclear Regulatory Commission]
Office of Inspector General in carrying out the provisions of the Inspector General Act of 1978, $12,071,000, to remain
available until September 30, 2016 . . . .”). The principal clause may itself allocate part of the aggregate sum to one of
the several purposes for which the appropriation is available. See, e.g., Consolidated Appropriations Act, 2016, Pub. L.
No. 114-113, Div. A, tit. I, 129 Stat. 2242, 2246 (2015) (providing roughly $44 million for the Department of
Agriculture’s Office of the Chief Information Officer “of which not less than” $28 million “is for cybersecurity
requirements of the Department”).
65 Further Consolidated Appropriations Act, 2020, Pub. L. No. 116-94, Div. A., tit. II, 133 Stat. 2534, 2557 (2019)
(Maternal and Child Health) (stating that notwithstanding specified provisions of the Social Security Act “not more
than $119,116,000 [of the appropriation] shall be available for carrying out special projects of regional and national
significance pursuant to section 501(a)(2) of such Act”).
66 Id., Div. B, tit. I, 133 Stat. at 2618 (Animal and Plant Health Inspection Service, Salaries and Expenses) (stating that
no funds shall be used to formulate or administer a brucellosis eradication program for FY2020 if the program did not
require a specified State funding match).
67 See infra “The Relationship Between Principal Clause and Proviso.”
68 Certain regular appropriations acts style these numbered provision as “administrative provisions.” See, e.g.,
Consolidated Appropriations Act, 2016, Pub. L. No. 114-113, Div. E, tit. I, 129 Stat. 2242, 2429 (2015).
69 See, e.g., Consolidated Security, Disaster Assistance, and Continuing Appropriations Act, 2009, Pub. L. No. 110-
329, Div. E, tit. I, 122 Stat. 3574, 3697 (2008).
70 See, e.g., Department of Defense and Full-Year Continuing Appropriations Act, 2011, Pub. L. No. 112-10, Div. A,
tit. VIII, 125 Stat. 38, 55 (2011).
71 See Consolidated Appropriations Act, 2008, Pub. L. No. 110-161, Div. D, tit. VII, 121 Stat. 1844, 2019 (2007). Prior
to Appropriations Committee reorganization at the start of the 110th Congress, general provisions that by their terms
applied government-wide appeared in regular appropriations acts making appropriations for the Departments of
Transportation and the Treasury and for independent agencies under the title “General Provisions–Departments,
Agencies, and Corporations.” See, e.g., CRS Report RL31572, Appropriations Subcommittee Structure: History of
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general provisions that Congress last enacted in a prior fiscal year’s appropriations act to continue
to affect an agency’s statutory authorities in the current fiscal year, including its authority to
obligate new budget authority.72
General provisions serve a range of functions. As in unnumbered paragraphs,73 general provisions
may grant transfer authority74 or rescind existing budget authority.75 As in unnumbered
paragraphs, if general provisions include transfer authority or rescissions, the act will typically
indicate the existence of such authority using a parenthetical statement that appears either at the
beginning of the general provisions or before the general provision to which the parenthetical
statement relates.76 General provisions may impose limitations on the use of budget authority
provided in the act.77 General provisions may also impose new duties on an agency or provide the
agency new authorities.78 A general provision might, itself, appropriate funds.79 General
provisions may even express in precatory terms the sense of Congress on a particular subject.80
Legislative Reports
The discussion above highlights the four basic components of modern-day statutes making
regular appropriations—the provisions of an appropriations bill that become law after being
passed in identical form by both houses, presented to the President, and either approved by the
President or enacted into law over the President’s disapproval.81 The regular appropriations
process also yields legislative reports drafted to accompany the regular appropriations bills.
Unlike the bills they accompany, the reports are not subject to bicameral passage and
presentment, and thus do not generally have legal effect unless an appropriations act contain
legally sufficient terms of incorporation for report material.82

Changes from 1920 to 2021, by James V. Saturno, at 11 (describing the 2007 subcommittee reorganization);
Consolidated Appropriations Act, 2004, Pub. L. No. 108-199, Div. F, tit. VI, 118 Stat. 3, 349 (2003) (reflecting
organization of government-wide general provisions prior to the 2007 subcommittee reorganization).
72 See infra “Determining How Long a Provision Affects Substantive Law.”
73 See supra notes 48–56 and accompanying text.
74 See, e.g., Departments of Labor, Health and Human Services, and Education, and Related Agencies Appropriations
Act, 2002, Pub. L. No. 107-116, tit. III, § 304, 115 Stat. 2217, 2208 (2002) (Department of Education general transfer
authority).
75 See, e.g., Consolidated Appropriations Act, 2014, Pub. L. No. 113-76, Div. B, tit. V, § 524, 128 Stat. 5, 83 (2014)
(rescinding or providing for the rescission of unobligated balances of six accounts).
76 See, e.g., id.
77 See, e.g., Consolidated Appropriations Act, 2020, Pub. L. No. 116-93, Div. C, tit. VII, § 708, 133 Stat. 2317, 2486
(2019) (imposing limitations on interagency financing of boards and similar entities if the relevant interagency entity
lacks specific statutory authority to receive financial support from more than one agency or instrumentality).
78 See, e.g., Department of Defense and Labor, Health and Human Services, and Education Appropriations Act, 2019
and Continuing Appropriations Act, 2019, Pub. L. No. 115-245, Div. A, tit. VIII, § 8030, 132 Stat. 2981, 3006 (2018)
(allowing the Secretary of the Air Force to convey excess Air Force housing units to Indian tribes, without
consideration and notwithstanding any other provision of law).
79 See, e.g., Consolidated Appropriations Act, 2020, Pub. L. No. 116-93, Div. A, tit. VIII, § 8121, 133 Stat. 2317, 2365
(2019) (appropriating an additional $315 million under the heading “Operation and Maintenance, Defense-Wide” for
the purpose of supporting public elementary and secondary public schools on military installations).
80 See, e.g., id., Div. C., tit. VII, § 727, 133 Stat. at 2490 (expressing the United States’ commitment to the health of
Olympic, Pan American, and Paralympic athletes and to strict adherence to anti-doping in sport).
81 See U.S. CONST. art. I, § 7, cl. 2; see also id. (explaining that bills not returned by the President within 10 days of
presentment “shall be a law” unless adjournment of Congress prevents a timely return).
82 See infra “Effect of Report Provisions.”
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Over the course of its congressional consideration, a regular appropriations bill may be
accompanied by several reports. These reports may include a report drafted by the relevant
subcommittee of the House Committee on Appropriations to accompany the appropriations bill
drafted by that subcommittee; a report drafted by the relevant subcommittee of the Senate
Committee on Appropriations to accompany the bill that it considers; and, last of all, a report
styled as either a joint explanatory statement or as an explanatory statement.83 In their
appearance, a joint explanatory statement or explanatory statement may be similar to a committee
report.84 Whether a regular appropriations act is accompanied by a joint explanatory statement, an
explanatory statement, or no statement at all, depends on the procedure Congress used to enact
the relevant appropriations statute.
A joint explanatory statement is a formal product of a conference committee, which is one
method of resolving differences between the House- and Senate-passed versions of a bill. A
conference committee drafts a conference report, which “contains only formal statements of
whatever procedural actions the conferees propose that one or both houses take and the formal
legislative language the conferees propose that the two houses approve.”85 A conference
committee also drafts a joint explanatory statement to accompany the conference report. The joint
explanatory statement details the effect that the amendments or propositions of the conference
report will have on bill to which they relate.86
An explanatory statement is an informal product of action by Congress to resolve differences
between the House- and Senate-passed versions of legislation using an exchange of amendments
between the Houses rather than a conference committee. One or more bill managers involved in
negotiating the proposed amendment typically drafts the explanatory statement.87
Reports that accompany appropriations acts can serve several functions. Even when the reports do
not impose legally binding requirements on the use of budget authority, the reports can, as a
practical matter, influence an agency’s use of its authorities.88 The reports may summarize the
provisions of the act. The reports may also contain detailed directives for the agencies funded in
the act, primarily (though not necessarily) related to program implementation. One common set
of directives reflects expectations of how an agency will allocate the funds of a given
appropriation among the various programs, projects, or activities that the appropriation funds.89

83 See generally McNellis, Appropriations Report Language, supra note 46.
84 See, e.g., Roeder v. Islamic Republic of Iran, 333 F.3d 228, 236 (D.C. Cir. 2003) (noting that a joint explanatory
statement of a conference committee takes “the form of a committee report”). As for an explanatory statement, a bill
manager will enter the text of the statement in the Congressional Record before the bill’s enactment. See, e.g., 163
Cong. Rec. H3327 (daily ed. May 3, 2017) (joint explanatory statement accompanying H.R. 244, the Consolidated
Appropriations Act, 2017). After enactment, the House Appropriations Committee may prepare a committee print of
the regular appropriations act or acts, together with any explanatory statement, at which point the explanatory
statement’s formatting more closely resembles a committee report. See H. COMM. ON APPROPRIATIONS, 1
CONSOLIDATED APPROPRIATIONS ACT, 2017 (Comm. Print 2017).
85 See CRS Report 98-382, Conference Reports and Joint Explanatory Statements, by Christopher M. Davis, at 1.
86 See infra note 341.
87 See infra “Preceding Matter Concerning the Explanatory Statement.”
88 Lincoln v. Vigil, 508 U.S. 182, 193 (1993) (“[W]e hardly need to note that an agency’s decision to ignore
congressional expectations” as expressed in a nonbinding fashion in a report accompanying a regular appropriations act
“may expose it to grave political consequences.”).
89 See CRS Report R46240, Introduction to the Federal Budget Process, by James V. Saturno, at 27 (“The
appropriation [in the statute] sometimes includes directives or provisos that allot specific amounts to particular
activities within the account, but the more common practice is to provide detailed information on the amounts intended
for each activity in other sources, principally the committee reports accompanying the measures.”); McNellis,
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Regular appropriations acts commonly refer to their accompanying reports. A regular
appropriations act might, for example, state that an appropriation “shall be made available in the
amounts specifically designated in the respective tables included in the explanatory statement”
referenced in the act’s preceding matter.90
Selected Statutory Interpretation Questions
Both in their drafting and in their implementation, regular appropriations acts raise a number of
recurring questions of statutory interpretation. What does it mean for budget authority to be
available for a particular time period? Might a provision proposed for inclusion in a regular
appropriations act be construed as permanent or, alternatively, only effective for the fiscal year to
which the act relates? A discussion of these and other frequently recurring questions follows.
The Relationship Between Principal Clause and Proviso
Usually, a statute’s provisions will be divided between two or more sections. Sections are the
basic unit of organization for most federal statutes. Congress “ordinarily adheres to a hierarchical
scheme in dividing statutory sections.”91 In this hierarchy appear units of text denoted, in
descending order, as subsections, paragraphs, subparagraphs, clauses, subclauses, items, and
subitems, among others.92 Congress uses this structure, among other things, to express the
relationship between different parts of a section. For example, Congress might set forth the
section’s general rule in an initial subsection, and then establish related points in paragraphs
subordinate to that subsection.93
By contrast, the unnumbered paragraphs of a regular appropriations act, which could be
characterized as the basic unit of organization for appropriations acts, usually have no internal
hierarchy of sections, subsections, and so on.94 Instead, within unnumbered paragraphs Congress
uses a principal clause/proviso structure. Congress once used this structure more widely95 but
now generally reserves it for regular and supplemental appropriations acts.96 The principal clause

Appropriations Report Language, supra note 46, at 4 & fig. 1 (providing an example of a report allocation table).
90 Consolidated Appropriations Act, 2018, Pub. L. No. 115-141, Div. K, tit. VII, § 7019(a), 132 Stat. 348, 873 (2018);
see also infra “The Exception: Incorporation by Reference.”
91 Koons Buick Pontiac GMC, Inc. v. Nigh, 543 U.S. 50, 60 (2004).
92 See id. at 60–61 (relying on drafting manuals prepared by the House and Senate Offices of the Legislative Counsel to
interpret the Truth in Lending Act’s use of the phrase “under this subparagraph” as a statutory cross reference).
93 See, e.g., M. DOUGLASS BELLIS, STATUTORY STRUCTURE AND LEGISLATIVE DRAFTING CONVENTIONS: A PRIMER FOR
JUDGES 9 (Fed. Jud. Ctr. 2008) (demonstrating how a section’s internal structure can be used to express the section’s
“main idea” in an initial subsection and related “sub-ideas” in hierarchically subordinate items such as paragraphs).
94 FILSON & STROKOFF, supra note 14, § 8.2 (distinguishing between the unnumbered paragraphs of regular
appropriations acts, which appropriate funds “under headings with no designations,” and the general provisions of a
regular appropriations act, which “are drafted in the traditional style” using sections and, within sections, an internal
hierarchy of subsections, paragraphs, and so on).
95 See, e.g., Pub. Res. No. 76-87, 54 Stat. 611, 611 (1940) (codified as amended at 22 U.S.C. § 444(a)) (exempting
American Red Cross vessels traveling to foreign states from Neutrality Act prohibitions on intercourse with belligerent
states “provided, that” the destination state is not under a blockade that a belligerent is attempting to enforce by
destroying vessels); Pub. L. No. 63-90, 38 Stat. 347, 347 (1914) (providing for the raising of a volunteer army in times
of actual or imminent war and defining in a proviso volunteer terms of enlistment and mustering out requirements).
96 See SENATE OFF. OF THE LEGIS., LEGISLATIVE DRAFTING MANUAL 69, § 308(b) (1997) (advising against use of the
principal clause/proviso structure but stating “[t]his rule may be broken in the case of an appropriations Act”); cf.
HOUSE LEGISLATIVE COUNSEL’S MANUAL ON DRAFTING STYLE, HLC DOC. NO. 104-1, at 63 (1995) (referring to use of
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will grant an agency budget authority (i.e., legal authority to incur obligations). One or more
provisos then typically follow the principal clause.97
As a matter of ordinary meaning, and read in isolation, the term that separates the principal clause
from its provisos, “provided,” might plausibly bear more than one meaning.98 “Provided” might
mean “except” that or “[o]n the condition that.”99 The proviso might therefore create an exception
to, or impose a condition on, the budget authority provided in its principal clause. “Provided”
might also stand in the place of the conjunction “and.”100 If “provided” is used as a conjunction,
the proviso might not necessarily be confined to the budget authority provided in the principal
clause. Such a proviso might stand, instead, as independent matter whose breadth does not
depend on the principal clause.101
At least since 1841,102 Supreme Court case law has helped distinguish between these two
potential meanings by establishing a presumptive relationship between the principal clause and a
proviso that follows it: the scope of the proviso is confined to the subject matter of the principal
clause only, and either creates an exception to, or otherwise restrains, the authority provided in
the principal clause.103
United States v. Morrow104 illustrates the effect this presumption can have on budget authority.
There, Congress appropriated amounts for military clerks in two appropriations. In one
appropriation, Congress provided line-item amounts for clerks at the territorial departments’
headquarters, as well as an amount for additional pay for those in foreign service.105 A proviso
followed the line-item appropriation, directing a $200 increase in the annual salary of certain
clerks, including those in the headquarters of a territorial department, while serving in the
Philippine Islands.106 In the second appropriation, Congress provided a lump-sum amount for the

the term “provided” as “archaic”). Continuing appropriations acts typically do not include unnumbered paragraphs but
rather appropriate sums by referencing the rate for operations provided in a particular regular appropriations act or bill.
See, e.g., Continuing Appropriations Act, 2021 and Other Extensions Act, Pub. L. No. 116-159, Div. A, § 101, 134
Stat. 709, 710 (2020).
97 See supra notes 65–67 and accompanying text.
98 Cf. McDonald v. United States, 279 U.S. 12, 21–22 (1929) (noting that Acts of Congress employ the word provided
in a principal clause/proviso structure “for many purposes”).
99 Provided, BLACK’S LAW DICTIONARY (11th ed. 2019) (definitions 1 and 2).
100 Id. (definition 3).
101 Georgia R.R. & Banking Co. v. Smith, 128 U.S. 174, 181 (1888) (“It is a common practice in legislative
proceedings, on the consideration of bills, for parties desirous of securing amendments to them to precede their
proposed amendments with the term ‘provided,’ so as to declare that, notwithstanding existing provisions, the one thus
expressed is to prevail; thus having no greater signification than would be attached to the conjunction ‘but’ or ‘and’ in
the same place, and simply serving to separate or distinguish the different paragraphs or sentences.”).
102 See Minis v. United States, 40 U.S. 423, 445–46 (1841).
103 See, e.g., United States v. McClure, 305 U.S. 472, 478 (1939); see also Abbott v. United States, 562 U.S. 8, 25–26
(2010) (applying the same presumption to a subparagraph that began with the phrase “except that”).
104 266 U.S. 531 (1925).
105 For example, the statute appropriated $2,000 per year for the chief clerk of the Office of the Chief of Staff. See, e.g.,
Pub. L. No. 63-91, 38 Stat. 351, 355 (1914).
106 See id. “A lump-sum appropriation is one that is made to cover a number of specific programs, projects, or items,”
while “a line-item appropriation is available only for the specific object described.” South Carolina v. United States,
144 Fed. Cl. 277, 284 (2019) (internal quotation marks omitted). These terms are relative concepts, and depending on
the objects at issue even apparent “line-item” appropriations could be characterized as lump-sum appropriations. See
Stiff, Power Over Appropriations, supra note 51, at 35& n.313 (citing Kate Stith, Rewriting the Fiscal Constitution:
The Case for Gramm-Rudman-Hollings, 76 CAL. L. REV. 593, 612 (1988)).
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incidental expenses of the Quartermaster Corps.107 Morrow was the chief clerk of the depot
quartermaster’s office at the Philippine Department of the Army headquarters, and his regular
salary was paid from the second appropriation (i.e., the lump-sum appropriation).108 Morrow
argued he fell within the terms of the first appropriation’s proviso (i.e., the line-item
appropriation) and was thus entitled to the $200 increase109—he was a “clerk[],” serving abroad
in the “Philippine Islands,” in the “headquarters” of a “territorial department.”110
The Court rejected Morrow’s claim.111 The general function of a proviso, the Court explained, “is
to except something from” the principal clause “or to qualify and restrain its generality and
prevent misinterpretation.”112 Thus, the proviso’s “grammatical and logical scope is confined to
the subject-matter of the principal clause,” and presumptively “refers only to the provision to
which it is attached.”113 Reading the proviso as confined to its principal clause, the $200 increase
applied only to those clerks whose annual salaries were supported by the line-item appropriation,
excluding those clerks, such as Morrow, whose salaries were paid out of the lump-sum
appropriation.114 The $200 increase did not apply, more broadly, to any clerk who might fall
within the scope of the proviso, as it might if it had been enacted as a free-standing provision not
linked to the line-item appropriation’s principal clause.115
As noted above, the presumption that a proviso is confined to the subject matter of its principal
clause is only that: a presumption.116 The text and structure of a statute might overcome the
presumption, so that a court would read a proviso in an appropriations act as introducing “new
matter extending rather than limiting or explaining that which has gone before.”117
Republic of Iraq v. Beaty118 demonstrates how a proviso overcomes the presumption concerning
its connection to its principal clause. There, the Republic of Iraq argued that a 2003 supplemental
appropriations act119 enacted after the 2003 invasion of Iraq led to the removal of many of the
consequences of the country’s 1990 designation as a state sponsor of terrorism.120 Among other
things, the 1990 designation caused Iraq to lose its immunity from suit when, in 1996, Congress
added a terrorism exception to the Foreign Sovereign Immunities Act (FSIA).121 With immunity

107 See, e.g., Pub. L. No. 63-91, 38 Stat. 351, 362–63 (1914).
108 Morrow, 266 U.S. at 533–34.
109 Id. at 534.
110 Pub. L. No. 63-91, 38 Stat. 351, 355 (1914).
111 Morrow, 266 U.S. at 536–37.
112 Id. at 534.
113 Id. at 534–35.
114 Id. at 534.
115 See id. at 535.
116 Cf. Block v. Cmty. Nutrition Inst., 467 U.S. 340, 349 (1984) (noting that “presumption favoring judicial review of
administrative action is just that,” “a presumption” that “like all presumptions used in interpreting statutes, may be
overcome by specific language or specific legislative history that is a reliable indicator of congressional intent”).
117 Interstate Com. Comm’n v. Baird, 194 U.S. 25, 37 (1904).
118 556 U.S. 848 (2009).
119 Emergency Wartime Supplemental Appropriations Act, 2003, Pub. L. No. 108-11, 117 Stat. 559 (2003).
120 See Beaty, 556 U.S. at 852–53 & 855.
121 See id. Congress repealed the exception at issue in Morrow in 2008, when it adopted a new terrorism exception, now
codified at 28 U.S.C. § 1605A. See National Defense Authorization Act for Fiscal Year 2008, Pub. L. No. 110-181,
Div. A, tit. X, § 1083(a), (b), 122 Stat. 3, 338, 341 (2008).
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allegedly restored as a result of the 2003 appropriations act, Iraq sought dismissal of claims
related to prisoner abuse that occurred during or after the Persian Gulf War.122
Iraq’s argument relied upon a general provision of the 2003 appropriations act that used a
principal clause/proviso structure.123 The principal clause permitted the President to suspend trade
and economic sanctions imposed under “any provision” of the Iraq Sanctions Act of 1990
(ISA).124 One of several provisos allowed the President to make inapplicable to Iraq a Foreign
Assistance Act prohibition on providing aid to a state sponsor of terrorism.125 The proviso also
allowed the President to make inapplicable to Iraq “any other provision of law that applies to
countries that have supported terrorism.”126 President George W. Bush exercised all of these
waiver authorities via a presidential memorandum.127
Applying the presumption in Morrow, the court of appeals read the disputed, any-other-provision-
of-law proviso in the context of its principal clause.128 The principal clause and the disputed
proviso itself specifically referenced only statutes that imposed “obstacles to assistance to
designated countries.”129 The court of appeals reasoned that “[n]one of these provisions remotely
suggests any relation” to a statute like the FSIA that dealt with “the jurisdiction of the federal
courts.”130 Thus, the disputed proviso’s more general reference to “any other provision of law”
included only those provisions that, like the principal clause, restricted “assistance and funding
for the new Iraqi Government.”131 The any-other-provision-of-law language did not include a
statute, such as the FSIA, that related to the jurisdiction of federal courts.132
The Supreme Court disagreed.133 The Court explained, in keeping with Morrow, that a proviso
usually creates an exception to a principal clause or qualifies, restrains, or explains that clause.134
However, the Beaty Court noted that a proviso may introduce “independent legislation” whose
scope is not confined to its principal clause.135 The Court stated that this second usage “may be
lazy drafting” in view of the presumptive function of a proviso, but the second usage nonetheless

122 See Beaty, 556 U.S. at 854.
123 Emergency Wartime Supplemental Appropriations Act, 2003, § 1503, 117 Stat. at 579.
124 Id.; see also generally Foreign Operations, Export Financing, and Related Programs Appropriations Act, 1991, Pub.
L. No. 101-513, tit. V, §§ 586–586J, 104 Stat. 1979, 2047–55 (1990) (Iraq Sanctions Act of 1990).
125 Emergency Wartime Supplemental Appropriations Act, 2003, § 1503, 117 Stat. at 579; see also 22 U.S.C. § 2371(a)
(Foreign Assistance Act prohibition on assistance to a country if the Secretary of State determines that the government
of that country has repeatedly supported acts of international terrorism).
126 Emergency Wartime Supplemental Appropriations Act, 2003, § 1503, 117 Stat. at 579 (emphasis added).
127 See Beaty, 556 U.S. at 854.
128 See Acree v. Republic of Iraq, 370 F.3d 41, 52–53 (D.C. Cir. 2004) (citing Morrow, 266 U.S. at 534–35), abrogated
by Beaty, 556 U.S. at 858; see also Beaty, 556 U.S. at 853, 854–55 (explaining how the D.C. Circuit’s 2004 decision in
Acree, an earlier case, bore on the cases consolidated for review in Beaty, which the lower courts decided by applying
Acree).
129 Acree, 370 F.3d at 55.
130 Id.
131 Id. at 57.
132 Id.
133 Beaty, 556 U.S. at 856 (holding that because the Foreign Sovereign Immunities Act’s terrorism exception was a
“provision of law” that applied to “countries that have supported terrorism” within the meaning of the supplemental
appropriations act, the President’s memorandum made that provision of law inapplicable to Iraq).
134 Id. at 858 (characterizing this reading as a proviso’s “general (and perhaps appropriate) office”).
135 Id. (internal quotation marks omitted).
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applied to the disputed proviso.136 Thus, the Court read the principal clause to grant “the President
a power; the [disputed] proviso purported to grant him an additional power.”137 The proviso “was
not, on any fair reading, an exception to, qualification of, or restraint on the principal power.”138
The Court supported this reading by contrasting the disputed proviso with other provisos to the
same principal clause, the latter of which included language that “plainly sought to define and
limit the authority granted” in the principal clause.139 No such language appeared in the disputed
proviso.140 Thus, FSIA’s terrorism exception was a “provision of law” that applied to “countries
that have supported terrorism.”141 The President’s memorandum made the terrorism exception
inapplicable to Iraq,142 even if Congress did not have the terrorism exception in mind when it
drafted the disputed proviso.143
Deciding whether a proviso is either confined to the scope of its principal clause (the presumptive
rule) or instead contains independent matter (the exception) depends on the text and structure of
the appropriations act text at issue. One indication that the presumptive rule applies may be, as in
Morrow, that the principal clause grants budget authority rather than, as in Beaty, new substantive
authority.144 On the other hand, the exception might apply if, as in Beaty, the proviso’s use of
broad language, not expressly tied to the authority of the principal clause, appears alongside other
provisos that are so expressly tied to the principal clause.145
Duration of Budget Authority
A critical component of the budget authority provided in a regular appropriations act is its
duration. This characteristic of budget authority describes the time period within which budget
authority is available for obligation.146 It is a key attribute of an agency’s obligational authority. If
Congress limits the duration of particular funding authority, the agency must return to Congress
when the funding lapses “to justify continuing the program or to debate about how much is
needed to carry on the program at the same or a different level.”147
Perhaps most commonly,148 the duration of budget authority is of a “definite” or “fixed” period.149
The appropriation will remain available for obligation until the end of the fiscal year for which

136 Id.
137 Id.
138 Id. (emphasis in original).
139 See id. at 859 (examining provisos containing express limitations on the authority of “this section”).
140 See id.
141 See id. at 856.
142 See id.
143 Id. at 860 (“It may well be that when Congress enacted the [supplemental appropriations act] it did not have
specifically in mind the terrorism exception to sovereign immunity.”).
144 Compare supra notes 105–106 and accompanying text, with supra notes 124–126 and accompanying text.
145 See supra notes 139–140 and accompanying text.
146 See GAO GLOSSARY, supra note 1, at 22.
147 B-217722, 64 Comp. Gen. 359, 362 (Mar. 18, 1985).
148 For example, in 2018, the Congressional Budget Office calculated that of the approximately $1.155 trillion in
“discretionary budget authority provided for FY 2017,” with certain exclusions, Congress made 84% of that amount
available as fixed-period budget authority and 15% as no-year budget authority. See Letter from Keith Hall, Director,
Cong. Budget Off., to Rep. Steve Womack, Co-Chair, Joint Select Comm. on Budget & Appropriations Process
Reform, at 2 (May 21, 2018), https://www.cbo.gov/system/files/2018-07/54155-appropriationsletter.pdf.
149 See, e.g., GAO GLOSSARY, supra note 1, at 56; 31 U.S.C. § 1552 (prescribing account closing rules for a “fixed
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the act makes appropriations (i.e., one-year funds), or the appropriation will remain available for
obligation for more than one fiscal year (i.e., multi-year funds).150 Alternatively, duration may be
“indefinite.”151 Such an appropriation will remain available until it is expended (i.e., no-year
funds).
Regular appropriations may pose two primary questions concerning the duration of budget
authority. One such question arises when the appropriation itself omits express reference to its
duration. The second such question, and the more important of the two given the frequency with
which it affects agency decisionmaking, is what effect duration has on an agency’s ability to use a
particular amount of funds to meet its expenses.
Determining Duration
In most cases, the portions of a regular appropriations act that provide budget authority will
expressly state the duration of that budget authority. That is, the unnumbered paragraph will state
not only the amount of the appropriation and the objects for which it is available, but also the
time period within which the appropriation is available for obligation: “For necessary expenses of
the Management Directorate [of the Department of Homeland Security] for research and
development, $2,545,000, to remain available until September 30, 2020.”152 In those cases, the
status of an appropriation as one-year, multi-year, or no-year funds will be apparent from the
statute.
However, it is possible for an unnumbered paragraph to omit reference to any duration; the
paragraph might instead state only the amount of the appropriation and the objects for which it is
available.153 In those circumstances, and depending on the regular appropriations act at issue,
several features of statute may interact to supply the duration that is missing from the
unnumbered paragraph.
The style and title of a regular appropriations act, part of its prefatory matter, recites that the act
makes appropriations for a particular fiscal year ending September 30.154 Moreover, according to
a statutory rule of construction that applies to appropriations generally, “an appropriation in a
regular, annual appropriation law may be construed to be permanent or available continuously”
only if the appropriation is for particular objects or “expressly provides that it is available after
the fiscal year covered by the law in which it appears.”155 Together, according to the Government
Accountability Office (GAO), these two provisions create an “implication of fiscal year
availability” for those appropriations made in an appropriations act that lack an express
duration.156 Where no duration is stated, at least as an initial matter, the appropriation is a one-

appropriation account”).
150 A multi-year appropriation might be available until the end of a subsequent fiscal year, but it is not necessarily the
case that the period of availability of multi-year appropriations is measured in whole fiscal years. See GAO GLOSSARY,
supra note 1, at 22 (including forward funding as a type of multiyear authority).
151 See, e.g., id.; 31 U.S.C. § 1555 (prescribing account closing rules an appropriation account that is available for
obligation an indefinite period).
152 Consolidated Appropriations Act, 2019, Pub. L. No. 116-6, Div. A , tit. I, 133 Stat. 13, 16 (2019) (emphasis added).
153 See, e.g., Further Consolidated Appropriations Act, 2020, Pub. L. No. 116-94, Div. A., tit. IV, 133 Stat. 2534, 2602
(2019) (National Mediation Board, Salaries and Expenses) (“For expenses necessary to carry out the provisions of the
Railway Labor Act, including emergency boards appointed by the President, $14,050,000.”).
154 See 1 U.S.C. § 105.
155 31 U.S.C. § 1301(c). The particular objects referenced in the statute are “rivers and harbors, lighthouses, public
buildings, or the pay of the Navy and Marine Corps.” Id.
156 B-145276, 45 Comp. Gen. 236, 236 (Nov. 5, 1965) (referencing 31 U.S.C. § 718, a predecessor of 31 U.S.C.
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year appropriation, available for obligation only through the end of the fiscal year for which the
regular appropriations act makes appropriations.157
There is a potential qualification to this “implication of fiscal year availability” though. Before
Congress makes an appropriation in a regular appropriations act, it typically enacts a statute
authorizing appropriations.158 This statute might state the duration of the budget authority whose
appropriation it authorizes, including multi-year or no-year durations. Later, Congress might then
reference the authorizing statute—the one authorizing appropriations of more than one fiscal
year’s duration—when making an appropriation that does not, itself, state a duration.159
A reference of this type in the appropriation to an authorizing statute usually identifies the object
for which the appropriation is available (e.g., for a particular type of direct loan).160 The reference
might also be understood to supply the appropriation’s missing duration. Absent evidence of
legislative intent to the contrary, a specific reference “to an authorization act which provides that
appropriations made pursuant thereto shall remain available for longer than 1 year” might operate
“to incorporate the provisions of the authorizing act into the provisions of the appropriation.”161
GAO has considered such incorporation by reference “sufficient to overcome the implication of
fiscal year availability.”162
This approach to imputing the duration of an authorization of appropriations to a later
appropriation that specifically references the authorizing statute may not always align with
congressional intent, a point emphasized by the House Appropriations Committee in 1965. A
House-drafted supplemental appropriations measure carried a “new general provision” that would
have the effect of limiting the time period within which the bill’s appropriations could be
obligated. The new general provision stated that “[n]o part of any appropriation contained in this
Act shall remain available for obligation beyond the current fiscal year unless expressly so
provided herein.”163 The Committee recommended the provision by noting varying ways in which
authorizations of appropriations addressed duration.164 “The result” of this perceived

§ 1301(c)); see also A-19557, 7 Comp. Gen. 153, 155 (Aug. 26, 1927) (appropriation for the construction of a comfort
station in the Lincoln Memorial that lacked a stated duration was available for obligation for one fiscal year only as the
appropriation did not fit any exception to the rule used to determine whether an appropriation is permanent or available
continuously).
157 See U.S. Election Assistance Comm’n—Application of Account Closing Law to Election Security Grants Awarded
and Disbursed to States, B-331892, 2020 WL 6798922, at *1 n.2 (Comp. Gen. Nov. 19, 2020) (“Because the amounts
appropriated in FY 2018 and 2020 were provided in annual appropriations acts and the acts did not specify that such
amounts were to be available for obligation for more than one fiscal year, such amounts were available for obligation
only during the fiscal year in which they were appropriated.”).
158 See, e.g., Maine Cmty. Health Options v. United States, 140 S. Ct. 1308, 1319 (2020).
159 See Adm’r, Hous. & Home Fin. Agency, B-145276, 45 Comp. Gen. 236, 237 (Nov. 5, 1965) (interpreting
appropriation for “loans as authorized by section 3 of the Urban Mass Transportation Act of 1964 (78 Stat. 302), $
5,000,000”).
160 Consumer Prod. Safety Comm’n—Period of Availability & Permissible Uses of Grant Program Appropriations, B-
319734, 2010 WL 2930065, at *3 (Comp. Gen. July 26, 2010) (explaining that an appropriation’s reference to an
authorizing statute “more specifically definin[ed] the purpose for which the $2 million is available”).
161 Adm’r, Hous. & Home Fin. Agency, 45 Comp. Gen. at 237; cf. B-145153, 45 Comp. Gen. 508, 510 (Feb. 18, 1966)
(concluding that an appropriation with no stated duration constituted one-year funds, even though made for a program
for which no-year funds were authorized, because the regular appropriations act lacked “specific reference” to the
authorizing statute).
162 Adm’r, Hous. & Home Fin. Agency, 45 Comp. Gen. at 237.
163 See H.R. REP. NO. 89-1162, at 54 (1965). Congress later enacted the provision into law. See Supplemental
Appropriation Act, 1966, Pub. L. No. 89-309, § 1201, 79 Stat. 1133, 1153 (1965).
164 See H.R. REP. NO. 89-1162, at 54 (1965) (“There has been no unbroken current of congressional consistency in
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inconsistency, the Committee continued, “has been occasional confusion, more frequent
uncertainty, and, sometimes, ‘no-year availability’ when the Committee thought, from the terms
of the budget and appropriation bill language, that a one-year appropriation was being made.”165
The purpose of the new provision was to “provide control” of budget authority duration “wholly
within the language of the Act in which the appropriation is carried.”166 If an act included the new
general provision, the reader could determine the duration of budget authority by looking to the
regular appropriations act alone, without having to consider potential interactions between the
appropriation and its corresponding authorization.167
Most modern-day regular appropriations acts include a similar provision, directing that the act’s
appropriations do not remain available beyond the fiscal year covered by the appropriations act
unless the act expressly provides otherwise.168 When a regular appropriations act includes this
provision and makes an appropriation with no stated duration, the appropriation is available for
obligation for the current fiscal year only. The terms of particular appropriations are read in the
context of the statute in which they appear.169 Thus, while a particular appropriation (e.g., the
principal clause of an unnumbered paragraph) might lack a statement of duration, the
appropriation is read in context with other parts of the act, including a general provision that
states that no part of any appropriation provided in the act remains available for obligation
beyond the current fiscal year unless the act expressly provides a longer period of availability.170
This one-year availability applies even if the appropriation specifically references a statute that
authorizes appropriations of greater duration.171 In that case, the authorizing statute contemplates
(for example) a no-year duration, and the appropriations act states a one-year duration. As the last
enacted of the two statutes, the appropriations act will likely control and specify the
appropriation’s duration.172
Duration’s Effect on Agency Obligations
Perhaps the more important question posed by the duration of an appropriation is the effect that
duration has on an agency’s ability to use appropriated amounts to meet its expenses. An
appropriation’s period of availability provides that the amounts are “to remain available” until a

structuring the sterotyped [sic] appropriation authorization sections of basic legislative enactments.”).
165 Id. For example, in 1963, the House Appropriations Committee wrote that it was “astonished to learn” that the
Department of Health, Education, and Welfare viewed a particular appropriation, which had no stated duration but was
made pursuant to a no-year authorization, as being available for obligation on a no-year basis. See H.R. Rep. No. 88-
1040, 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, B-
319734, 2010 WL 2930065, at *3 (Comp. Gen. July 26, 2010) (relying on the “fundamental principle of statutory
construction that when two laws are in irreconcilable conflict, the later enactment of Congress takes precedence over
the earlier” to determine an appropriation’s period of availability).
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fixed date or indefinitely. This limitation is substantially more complex than a mere deadline for
obligating federal funds. Rather, for certain appropriations, a provision of permanent law, the so-
called “time statute,”173 requires an agency to consider the nature of the expenses or contracts that
it proposes to fund from a given appropriation, to determine whether, as a temporal matter, the
appropriation is available for the expense or contract.
The time statute originated in a provision enacted in 1870 to address the Civil War’s fiscal
effects.174 As it does today, Congress at that time appropriated funds for the general support of the
government, in part, on an annual basis.175 According to Senator John Sherman, those annually
voted sums, more than $111 million in FY1870, were “all that was required really for the
expenses of the Government in the opinion of Congress.”176 However, though prior statutes
generally stated that annually appropriated amounts were for the “service” of a given fiscal
year,177 Congress was understood to have given agencies some leeway in retaining, year to year,
the unexpended balances of prior-year appropriations.178 At the end of one fiscal year the
unexpended balance of such “old” appropriations (i.e., those made in a prior fiscal year’s
appropriations act) were understood to potentially augment the agency’s “new” appropriations
(i.e., those made for the current fiscal year).179 By FY1870, according to Senator Sherman funds
had thus accumulated so that federal agencies had available to them remaining, prior fiscal year
appropriations of more than $102 million, on top of the $111 million amount that Congress had
appropriated for that fiscal year.180 In the opinion of at least some Members, this perceived
flexibility undermined Congress’s control over agency spending.181

173 See 31 U.S.C. § 1502(a).
174 See, e.g., CONG. GLOBE, 41st Cong., 2nd Sess. 3328 (May 10, 1870) (statement of Sen. Sherman) (noting effects that
had “sprung up only since the war”); see also Law of July 12, 1870, ch. 251, 16 Stat. 230, 251.
175 Then as now, Congress also funded government programs using permanent appropriations. See, e.g., Law of March
3, 1849, ch. 129, 9 Stat. 414, 414–15 (permanent appropriation for paying compensation to military service members
for the loss of a horse during military service).
176 CONG. GLOBE, 41st Cong., 2nd Sess. 3328 (statement of Sen. Sherman) (referring to this sum as amount
appropriated “[l]ast year”).
177 For example, GAO has stated on a number of occasions that the bona fide needs rule has existed since 1789. See,
e.g., B-235678, 1990 WL 278336, at *2 (Comp. Gen. July 30, 1990) (stating that the rule “initially appeared in 1789”);
see also infra notes 192–218 and accompanying text (discussing bona fide needs rule). This statement appears to refer
to language in the first appropriations act enacted under the Constitution, which appropriated sums “for the service of
the present year.” Law of September 29, 1789, ch. 23, 1 Stat. 95, 95.
178 Cf. Law of March 3, 1795, ch. 45, 1 Stat. 433, 437 (directing return to the Treasury’s “Surplus Fund” of the balances
of prior-year appropriations that remained unexpended more than two calendar years after the end of the year in which
the appropriation was made but only if the Secretary of the Treasury determined that the object of the appropriation had
been fully satisfied).
179 See, e.g., Unexpended Balance of Appropriation, 7 Op. Att’y Gen. 14, 15 (1856) (stating that “as a general rule,
where a contract or other claim on the Government is a continuous one, and still current, there the balance remaining of
the appropriation made in one year for such service laps over into the following year, and is continuously applicable to
the same object”); 2 Op. Att’y Gen.442, 445 (1831) (explaining that “unexpended” meant “unapplied to the objects of
the appropriation”); CONG. GLOBE, 41st Cong., 2nd Sess. 3328 (statement of Sen. Sherman) (stating that the “lapping
over” of funds resulted in the “fund to be drawn upon” being nearly “twice as large” as the amount appropriated in a
fiscal year); see also Wilder v. United States, 16 Ct. Cl. 528, 543 (1880) (“Formerly, as we have said, but slight
attempts were made to keep these accounts of the government by fiscal years.”).
180 See CONG. GLOBE, 41st Cong., 2nd Sess. 3328 (statement of Sen. Sherman) (noting that funds had thus accumulated
“during and since the war”).
181 See id. at 3330 (statement of Sen. Trumbull) (arguing that “if we are to have any control over the disbursements
made by the Government, . . . the money should not be left thus at loose ends, hundreds of millions appropriated and
unused which these bureaus and Departments may continue to use as they may find occasion for”); cf. id. at 3328
(statement of Sen. Sherman) (urging adoption of an amendment that would have the effect of starting each year “with
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Congress’s 1870 amendment required that amounts appropriated in a regular appropriations act
specifically for the service of that year be used only to pay expenses incurred in that year or to
fulfill contracts properly made for that year.182 The 1870 amendment directed the return to the
Treasury of any balances not needed to pay such expenses.183 The time statute of today contains
substantially the same directive: “The balance of an appropriation or fund limited for obligation
to a definite period is available only for payment of expenses properly incurred during the period
of availability or to complete contracts properly made within that period of availability and
obligated consistent with section 1501 of this title.”184
The time statute confines use of a fixed-period appropriation to obligations incurred during the
appropriation’s period of availability.185 After the end of that period (i.e., after September 30 of a
given fiscal year for one-year funds appropriated for that fiscal year), the appropriation is said to
“expire” and cannot be used to incur new obligations.186 Expired appropriations are available only
to record or adjust obligations that were properly chargeable to the appropriation or to liquidate
such obligations.187 Suppose, for example, that an administrative panel resolves a labor dispute by
ordering an agency to provide uniforms or uniform allowances to designated employees.188 Under
the statutory framework, this order establishes an obligation.189 If the agency failed to record that
obligation against an appropriation before the appropriation expired, it may use the expired
appropriation to reflect the obligation that was actually incurred during its period of
availability.190 The agency may not use the expired appropriation to incur a new obligation.191 It

new books” by allowing use of “unpaid and old unexpended balances” only to pay existing liabilities incurred during
the prior year).
182 Law of July 12, 1870, ch. 251, 16 Stat. 230, 251; see also 13 Op. Att’y Gen. 288, 292 (1873) (“Congress has the
right to limit its appropriations to particular times as well as to particular objects, and when it has clearly done so, its
will expressed in the law should be implicitly followed.”).
183 Law of July 12, 1870, ch. 251, 16 Stat. 230, 251. At that time, remaining balances of appropriations were to be
returned two years after the end of the fiscal year for which the appropriation was made to the extent not needed to
settle accounts. See id.
184 31 U.S.C. § 1502(a).
185 By its terms, the time statute, which references appropriations or funds “limited for obligation to a definite period,”
id., does not apply to no-year appropriations, which are available for an “unlimited period of time.” Commodity
Futures Trading Comm’n—Recording of Obligations for Multiple-Year Leases, B327242, 2016 WL 423697, at *6 n.9
(Comp. Gen. Feb. 4, 2016) (noting that no-year funds are “available for the needs of any fiscal year”).
186 See Continued Availability of Expired Appropriation for Additional Project Phases, B-286929, 2001 WL 717355, at
*4 (Comp. Gen. Apr. 25, 2001) (stating that nothing “in the bona fide needs rule suggests that expired appropriations
may be used for a project for which a valid obligation was not incurred prior to expiration” and that once “the
obligational period has expired, new obligations must be charged to current funds even if a continuing need arose
during the prior period.”).
187 31 U.S.C. § 1553(a).
188 Nat’l Guard—Fiscal Year to Be Charged for Mandated Unif. Purchases (Reconsideration), B-265901, 1997 WL
639970, at *4–5 (Comp. Gen. Oct. 14, 1997).
189 Id. at *4–6 (explaining that the “the duty to either provide uniforms or pay a uniform allowance arose when the
National Guard was legally required to provide those uniforms or pay allowances” and concluding that this requirement
arose upon issuance of a Federal Service Impasses Panel (FSIP) order despite later agency action disapproving of the
order where the disapproval exceeded the agency’s authority to not comply with FSIP orders).
190 See Nat’l Lab. Rels. Bd.—Improper Obligation of Severable Servs. Cont., B-308026, 2006 WL 2673583, at *4
(Comp. Gen. Sept. 14, 2006) (“Agencies are required to record against expired appropriations obligations previously
incurred that were not recorded when the obligation was incurred and to adjust recorded amounts to reflect the amount
actually incurred.”).
191 Cf. Impoundment Control Act—Withholding of Funds through their Date of Expiration, B-330330.1, 2018 WL
6445177, at *4 (Comp. Gen. Dec. 10, 2018) (“[T]he permissible uses of an expired appropriation relate back to
obligations incurred during the period of availability of the funds and do not constitute new obligations themselves.”).
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may not, for example, enter into a contract for the first time on October 14 of a given year and
record the obligations thus assumed against the unobligated balances of an appropriation that
expired two weeks earlier, on September 30.
Under the time statute, however, it is not enough for an agency to incur an obligation during an
appropriation’s period of availability.192 The time statute refers to particular types of expenses and
contracts as permissible of fixed-period appropriations—those expenses “properly incurred” or
those contracts “properly made” during the appropriation’s period of availability.193 GAO has
derived from the time statute a “bona fide needs rule”: “contracts executed and supported under
authority of fiscal year appropriations can only be made within the period that such funds are
available for obligation and may be made only to meet a bona fide need arising within that
period.”194 The bona fide needs rule generally applies to all federal government activities carried
out with fixed-period appropriations,195 whether those activities occur by way of a contract with a
nonfederal party,196 an interagency agreement,197 a cooperative agreement,198 or a grant.199
The concept of severability is key to deciding whether an expense incurred or contract formed
using a particular fixed-period appropriation meets a need that arises during the period in which
the appropriation was available for obligation—for example, whether funds available until
September 30, 2021, are used to meet a need that arises on or before that date. Services are either
severable or nonseverable, and the nature of the work funded determines which category a service
fits.200
A severable service meets a continuing or recurring need of an agency.201 Though an agency
might enter into a single contract for a year’s worth of such services, performance of the services

192 See B-130815, 37 Comp. Gen. 155, 158 (Sept. 3, 1957) (arguing that if the time statute were “construed to authorize
the use of unexpended balances of appropriations specifically made for the service of a particular fiscal year for the
purchase of supplies, etc., for the service of a subsequent fiscal year, provided that a contract therefor should be
entered into during the fiscal year for which the appropriation was made, the effect would be to practically nullify the
object of the statute” (emphasis added)); cf. Matter of Expired Funds & Interagency Agreements Between GovWorks
& the Dep’t of Def., B-308944, 2007 WL 2120292, at *9 (Comp. Gen. July 17, 2007) (examining an agency’s use of
non-Economy Act interagency agreements to “parking” or “banking” fixed-period appropriations with another agency
in a manner that would effectively extend the obligational availability of those funds).
193 See, e.g., Gen. Servs. Admin.—Availability of No-Year Appropriations for a Modification of an Interagency Ord.,
B-326945, 2015 WL 5674965, at *2 (Comp. Gen. Sept. 28, 2015) (“An important word in this statute is ‘properly’:
expenses ‘properly incurred’ or contracts ‘properly made.’” (quoting 31 U.S.C. § 1502(a)).
194 In the Matter of Storage Tech. Corp., B-188399, 56 Comp. Gen. 860, 861 (Aug. 4, 1977).
195 U.S. Dep’t of Educ.’s Use of Fiscal Year Appropriations to Award Multiple Year Grants, B-289801, 2002 WL
31950147, at *4 (Comp. Gen. Dec. 30, 2002).
196 U.S. Small Bus. Admin.—Indefinite-Delivery Indefinite-Quantity Cont. Guaranteed Minimum, B-321640, 2011WL
4376308, at *4 (Comp. Gen. Sept. 19, 2011) (contract to procure computer hardware and software).
197 Transfer of Fiscal Year 2003 Funds from the Library of Congress to the Office of the Architect of the Capitol, B-
302760, 2004 WL 1146276, at *7 (Comp. Gen. May 17, 2004) (interagency agreement between the Library of
Congress and the Architect of the Capitol for the Architect to redesign and renovate a Library building loading dock).
198 See Dep’t of Agric.—Coop. Agreement for Use of Aircraft, B-308010, 2007 WL 1246850, at *4 (Comp. Gen. Apr.
20, 2007) (cooperative agreement between the U.S. Department of Agriculture and the owner of an airplane leasing the
airplane to the Department for use in its wildlife predation program).
199 See U.S. Dep’t of Educ.’s Use of Fiscal Year Appropriations to Award Multiple Year Grants, 2002 WL 31950147,
at *4.
200 See Funding for Air Force Cost Plus Fixed Fee Level of Effort Cont., B-277165, 2000 WL 267527, at *3 (Comp.
Gen. Jan. 10, 2000) (“With respect to severability issues, it is the nature of the work being performed, not the contract
type, that must be taken into account in reaching a judgment on that issue.”).
201 B-235086, 1991 WL 122260, at *2 (Comp. Gen. Apr. 24, 1991).
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is able to be separated into independent components.202 The agency derives value when each such
component is performed.203 For example, gardening or window-washing services benefit the
agency each time the services are performed.204 The agency must fund these components using a
fixed-period appropriation that is current—that is, still available for obligation—when the
component is performed.205 Thus, an agency generally may not obligate a fixed-period
appropriation for the cost of severable services that will be performed after the end of the
appropriation’s period of availability.206
Nonseverable services are not capable of being divided in the same manner as severable services.
As a general matter, a nonseverable service calls for the creation of an end product.207 While the
agency or its contractor might develop that end product in stages or phases, unlike with a
severable service the agency derives no independent benefit from the completion of those
preliminary stages or phases.208 The agency’s need is instead met only when the entire task is
performed.209 For example, an agency needing a new data retrieval system will not see that need
met until the system is operational—a half-completed, nonfunctioning system does not meet the
agency’s needs.210 Unlike severable services, so long as a need for the nonseverable service exists
and an obligation is incurred when a fixed-period appropriation is available for obligation, an
agency may use the appropriation to pay for work performed in a later fiscal year, even after the
appropriation expires.211 The work that will be performed in the later fiscal year is considered
“not severable from the portion performed” in the current fiscal year.212
Obligations for federal assistance programs, which take the form of a grant or cooperative
agreement, present a special type of bona fide needs analysis. When an agency makes a grant or
cooperative agreement, it awards funds to a third party recipient for the recipient’s use in carrying

202 Incremental Funding of U.S. Fish and Wildlife Serv. Research Work Orders, B-240264, 73 Comp. Gen. 77, 79 (Feb.
7, 1994).
203 Incremental Funding of Multiyear Contracts, B-241415, 71 Comp. Gen. 428, 430 (June 8, 1992).
204 Dep’t of Health and Human Servs.—Multiyear Contracting and the Bona Fide Needs Rule, B-322455, 2013 WL
4398954, at *5 & n.13 (Comp. Gen. Aug. 16, 2013) (noting that such tasks “confer the full benefit on the agency every
time they are performed”); see also Acumenics Rsch. & Tech., Inc.—Cont. Extension, B-224702, 1987 WL 102680, at
*9 (Comp. Gen. Aug. 5, 1987) (stating that “essentially clerical services” are “severable in nature”).
205 B-235678, 1990 WL 278336, at *3 (Comp. Gen. July 30, 1980).
206 See Severable Servs. Conts., B-317636, 2009 WL 1140240, at *3 (Comp. Gen. Apr. 21, 2009) (“[A]n agency using
a multiple year appropriation would not violate the bona fide needs rule if it enters into a severable services contract for
more than 1 year as long as the period of contract performance does not exceed the period of availability of the multiple
year appropriation.”).
207 See Fin. Crimes Enf’t Network—Obligations Under a Cost-Reimbursement, Nonseverable Servs. Cont., B-317139,
2009 WL 1621304, at *4 (Comp. Gen. June 1, 2009).
208 Cf. Incremental Funding of Multiyear Conts., 71 Comp. Gen. at 430 (“Although interim reports were to be provided
during the progress of the study, such reports were merely informational and not independent, stand-alone work
products.”).
209 Transfer of Fiscal Year 2003 Funds from the Library of Congress to the Office of the Architect of the Capitol, B-
302760, 2004 WL 1146276, at *5 n.9 (Comp. Gen. May 17, 2004) (“Because the Library would receive no benefit if
the Architect were not to complete construction of the Madison building loading dock, the interagency agreement
between the Architect and the Library for that work represents a single, nonseverable undertaking.”).
210 Obligations Under a Cost-Reimbursement, Nonseverable Servs. Cont., 2009 WL 1621304, at *4 (categorizing a
contract for a data retrieval system as nonseverable because the contract called for delivery of a “defined end product”).
211 Independent Statutory Authority of Consumer Product Safety Comm’n to Enter Interagency Agreements, B-289380,
2002 WL 31628522, at *2 (Comp. Gen. July 31, 2002).
212 Acumenics Rsch. & Tech., Inc.—Cont. Extension, B-224702, 1987 WL 102680, at *9 (Comp. Gen. Aug. 5, 1987).
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out a stated public purpose.213 The funds recipient will then later use those funds to cover the cost
of goods and services needed to carry out that public purpose.
In reviewing agency obligations for federal assistance programs, GAO once considered whether
the uses to which a recipient dedicated federal funds resembled severable services, which GAO
opined could be supported only by grant or cooperative agreements awards made on an annual
basis.214 More recent decisions, though, draw a distinction between the agency’s use of
appropriated funds to make a grant or cooperative agreement award and the recipient’s
subsequent use of the funds. The agency’s need under a financial assistance program is to extend
funds to a recipient, and that need is met when the agency incurs an obligation to the recipient
under a grant or cooperative agreement.215 For purposes of the bona fide needs rule, it “does not
matter” when the recipient, in turn, uses the funds to carry out the stated public purpose.216 Thus,
so far as the time statute is concerned, and assuming an agency has the need to make grants in the
fiscal year when an appropriation is still current, an agency may obligate a fixed-period
appropriation to award funds that the recipient could not first use until the following fiscal year217
or to make a multiple-year grant award.218
Determining Effects on Substantive Law
The chief function of a regular appropriations act is the granting of budget authority.219 This focus
results in part from chamber rules. Since the mid-1800s chamber rules have encouraged Members
to separate decisions of whether and how Congress should authorize particular agency functions
from decisions of whether Congress should fund such authorized functions.220 More specifically,
chamber rules generally prohibit “legislation on appropriations measures.”221 For example, it is

213 An agency is to enter a cooperative agreement with a funds recipient when the agency expects that it will be
substantially involved in carrying out the award. An agency is to enter a grant agreement when it does not expect to be
substantially involved in carrying out the award. See 31 U.S.C. §§ 6304, 6305 (setting criteria for use of a grant
agreement or a cooperative agreement).
214 B-217722, 64 Comp. Gen. 359, 364 (Mar. 18, 1985) (examining a National Institutes of Health program to
“stimulate particular kinds of research that will be needed year-after-year” but which did not “contemplate a required
outcome or product” and concluding that NIH could fund grant awards on an annual basis only).
215 U.S. Dep’t of Educ.’s Use of Fiscal Year Appropriations to Award Multiple Year Grants, B-289801, 2002 WL
31950147, at *4 (Comp. Gen. Dec. 30, 2002); see also Small Bus. Admin.—Questions About Funding of Small Bus.
Dev. Centers, B-229873, 1988 WL 228272, at *4 (Comp. Gen. Nov. 29, 1988).
216 See Questions About Funding of Small Bus. Dev. Centers, B-229873, 1988 WL 228272, at *4.
217 See id. at *2, 4 (obligation of one-year funds on the last day of their temporal availability).
218 U.S. Dep’t of Educ.’s Use of Fiscal Year Appropriations to Award Multiple Year Grants, B-289801, 2002 WL
31950147, at *4 (noting that though the statute authorizing a particular grant program did not “provide explicit
authority to award multiple year grants” by providing five-year grants the Department of Education (ED) would help
ensure the continuity of student services “which the programs legislation seeks to provide” and that ED fulfilled “its
bona fide need under this program when it awards these 5-year grants”). The statute authorizing a financial assistance
program may, however, impose limits on the duration of a grant or cooperative agreement. See Dep’t of Educ.—Grant
Extensions, B-303845, 2006 WL 39269, at *3, 5 (Comp. Gen. Jan. 3, 2006) (concluding that because the authorizing
statute or related regulations permitted ED to award grants to certain educational institutions for a period of up to five
academic years ED could not extend a five-year award for an additional four years).
219 See GAO GLOSSARY, supra note 1, at 13.
220 See Saturno, Limitations in Appropriations Measures, supra note 16, at 1 (“Under the rules of the House and Senate,
legislative provisions and appropriations for purposes not authorized by law typically may not be included in
appropriations measures. These rules were formally established in both chambers during the mid-1800s to address
concerns with delays in enacting appropriations due to the inclusion of extraneous legislative matters that tended to
provoke controversy.”).
221 Id. Chamber rules relating to legislation on appropriations apply to general appropriations measures, which include,
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generally not in order for an Appropriations Committee to report a regular appropriations bill that
includes a provision expanding the authority granted to an agency under other law, and one
Member may raise a point of order if another Member offers such a provision as an amendment
to a regular appropriations bill.222
So far as chamber rules are concerned, Congress in most cases is to make “money” and “policy”
decisions separately, the former in appropriations acts and the latter in other statutes.223 Even so,
regular appropriations acts commonly include matter that is alleged to affect what the courts often
label as “substantive law.” For example, an agency or litigant might cast Congress’s decision to
fund or not fund a particular obligation or activity as having changed the substantive law
underlying that obligation or activity. Likewise, provisos or general provisions are often said to
effect changes in substantive law.
To assess claims that a provision in a regular appropriations act alters substantive law, courts
apply legal presumptions about a provision’s intended meaning. These presumptions are born of
courts’ understanding of the purpose and procedure behind regular appropriations acts. The
presumptions address two questions: the effect, if any, of a provision on substantive law, and the
duration of any such effect.
Effects of Appropriations Act on Substantive Law
Case law interpreting the effect of regular appropriations act matter on “substantive law” typically
does not expressly define that phrase. In general terms, substantive law means provisions of law
fixing rights, duties, or obligations.224 The phrase’s use in the appropriations context is similar to
this general definition. When courts refer to the effect of a regular appropriations act on
“substantive law,” the courts mean (for example) those provisions of statute authorizing agency

but are not limited to, regular appropriations measures. See id. at 1 nn. 4, 9 (explaining that in the House “general
appropriations bills are the annual appropriations acts (or any combination thereof) and any supplemental
appropriations acts that cover more than one agency” while in the Senate such measures include regular and
supplemental appropriations bills as well as continuing appropriations bills that cover more than one agency or
purpose).
222 See id. at 14 (“Limitations cannot expand the discretion previously provided in law to an official or agency to
include actions not currently authorized, even if those actions are not explicitly prohibited by existing law.”).
223 See Andrus v. Sierra Club, 442 U.S. 347, 361 (1979) (stating that the distinction in chamber rules between
“legislation” and “appropriations” encourages “program and financial matters” to be “considered independently of one
another. This division of labor is intended to enable the Appropriations Committees to concentrate on financial issues
and to prevent them from trespassing on substantive legislation.” (internal quotation marks omitted)).
224 See, e.g., Substantive Law, BLACK’S LAW DICTIONARY (11th ed. 2019) (“The part of the law that creates, defines,
and regulates the rights, duties, and powers of parties.”).
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functions,225 imposing duties on agencies,226 or creating rights in third parties.227 Most of the time,
Congress establishes substantive law by enacting a statute other than an appropriations act.228
When the question is whether matter in an appropriations act affects provisions of statute
establishing substantive law, courts employ presumptions that are born of courts’ understanding
of the purpose and procedure behind regular appropriations acts.229 The Supreme Court has thus
distinguished between “substantive enactments and appropriations measures.”230 Both are “Acts
of Congress,” but appropriations acts are understood to have “the limited and specific purpose of
providing funds for authorized programs.”231 It is also true, though, that Congress regularly alters
substantive law in appropriations acts,232 and nothing in the Constitution requires it to make only
“money” decisions in appropriations acts.233

225 See, e.g., United States v. Burton, 888 F.2d 682, 687 (10th Cir. 1989) (per curiam) (noting that while provisions of
permanent law allowed the General Services Administration (GSA) to appoint police officers to patrol federal property
only if the federal government had acquired criminal jurisdiction over that property an appropriations act granted GSA
additional authority to appoint police officers even as to federal property for which no such criminal jurisdiction had
been acquired); Donovan v. Carolina Stalite Co., 734 F.2d 1547, 1558 (D.C. Cir. 1984) (considering the effect of a
limitation on funding contained in an appropriations act on the Department of Labor’s “statutory basis for enforcement
litigation” under the Federal Mine Safety and Health Act).
226 See, e.g., City of Chicago v. U.S. Dep’t of Treasury, Bureau of Alcohol, Tobacco & Firearms, 423 F.3d 777, 781
(7th Cir. 2005) (concluding that a proviso in a regular appropriations act amounted to a “change in substantive FOIA
law in that it exempts from disclosure data previously available to the public under FOIA”); Pontarelli v. U.S. Dep’t of
the Treasury, 285 F.3d 216, 231 (3d Cir. 2002) (concluding that a proviso barring use of a Bureau of Alcohol, Tobacco,
and Firearms (ATF) funds to investigate or act upon an application for relief from firearms disabilities prevented ATF
from denying such applications and thus prevented federal courts from reviewing applications as an ATF denial was
required for judicial review).
227 See, e.g., Kane Cty. v. United States, 136 Fed. Cl. 644, 649 (2018) (examining whether a regular appropriations act
affected the federal government’s “substantive obligation” under preexisting law to make payments to local
governments to compensate for tax revenue lost on account of tax-exempt federal lands within the local governments’
territorial jurisdiction).
228 Courts decide whether matter in an appropriations act alters preexisting substantive law using the same
presumptions, detailed below, whether or not the substantive law was established in an appropriations act or in another
statute. See, e.g., Ctr. for Investigative Reporting v. U.S. Dep’t of Just., 982 F.3d 668, 681 (9th Cir. 2020) (finding that
general provisions contained in acts making appropriations for FY2010 and FY2012 repealed general provisions in acts
making appropriations for FY2005 and FY2008 concerning disclosure of information from ATF’s Firearms Tracing
System); Cherokee Nation v. Bernhardt, 936 F.3d 1142, 1156 n.16 (10th Cir. 2019) (concluding that a proviso in a
1999 regular appropriations act demonstrated Congress’s clear intent to modify substantive law contained in a proviso
of a 1992 appropriations act concerning the Cherokee Nation’s role in decisions to take into trust land located within
the original boundaries of the Cherokee territory in Oklahoma).
229 United States v. Vulte, 233 U.S. 509, 515 (1914) (noting that the presumption against substantive law changes in an
appropriations act “follows naturally from the nature of appropriation bills” and “is fortified by the rules of the Senate
and House of Representatives”).
230 Tennessee Valley Auth. v. Hill, 437 U.S. 153, 190 (1978).
231 Id. (internal quotation marks omitted).
232 See Demby v. Schweiker, 671 F.2d 507, 512 (D.C. Cir. 1981) (MacKinnon, J., announcing judgment of the court)
(stating that while such repeals “are infrequent” they occur in “every session” of Congress); see also United States v.
Will, 449 U.S. 200, 222 (1980) (“[W]hen Congress desires to suspend or repeal a statute in force, there can be no doubt
that it could accomplish its purpose by an amendment to an appropriation bill, or otherwise.” (internal quotation marks
omitted)).
233 Cf. The Last Best Beef, LLC v. Dudas, 506 F.3d 333, 340 (4th Cir. 2007) (“What may seem inadvisable on the part
of Congress is not unconstitutional.”) (refusing to adopt a “a per se rule that Congress cannot amend or suspend prior
legislation through appropriations riders” notwithstanding the district court’s concern that use of an appropriations act
to prevent one phrase from being trademarked could create an allegedly unduly complex trademark scheme).
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Given this understanding of the normally limited function of matter in an appropriations statute,
courts have developed a “very strong presumption” against finding that Congress changed
substantive law by means of an appropriations act.234 Congress “may amend substantive law in an
appropriations statute, as long as it does so clearly.”235 Thus, courts will find that matter in an
appropriations act alters substantive law when that outcome is the only reasonable interpretation
of the appropriations act.236 Courts have justified this reluctance to find substantive law changes
in appropriations acts by referring to the perceived unpredictability that a less-demanding
standard would yield.237
Most frequently, courts consider whether Congress’s decision to appropriate, or not appropriate,
funds for a given purpose itself constitutes a change in law. Thus, when substantive law fixes a
definite salary for an officer or employee,238 or directs an agency to make payments to health
insurers,239 or establishes protections for wildlife that would prevent an agency action,240 a litigant
might contend that Congress’s later decision of whether to fund these obligations or activities
amounts to a change in preexisting law. If Congress funds less than the amount fixed in law for an
employee’s salary,241 or bars the use of funds for payments,242 or allegedly continues to fund a
project that substantive law would otherwise prohibit,243 the question is whether Congress has
thereby altered the employee’s salary, changed the terms of the government’s payment obligation,
or carved out an exception to federal environmental laws.
The answer to such questions largely depends on the language of the appropriation and its
relation to preexisting substantive law. However, a few points emerge from the case law. If
substantive law fixes an obligation, Congress later choosing not to appropriate enough funds to

234 Bldg. & Const. Trades Dep’t, AFL-CIO v. Martin, 961 F.2d 269, 273 (D.C. Cir. 1992); see also Hill, 437 U.S. at
190 (noting that the rule disfavoring implied repeals applies “with even greater force when the claimed repeal rests
solely on an Appropriations Act” (emphasis in original)).
235 Robertson v. Seattle Audubon Soc., 503 U.S. 429, 440 (1992); see also Calloway v. District of Columbia, 216 F.3d
1, 9 (D.C. Cir. 2000) (framing the relevant inquiry as whether Congress “unambiguously expressed an intent” to
change substantive law by means of an appropriations act).
236 United States v. Vulte, 233 U.S. 509, 515 (1914) (explaining that an appropriations act modifies substantive law
where the language of the act “admits of no other reasonable interpretation” than modification (internal quotation
marks omitted)).
237 See, e.g., Hill, 437 U.S at 190–91 (justifying the presumption against substantive law changes in appropriations acts
by claiming the presumption relieves Members of Congress of the need to “review exhaustively the background of
every authorization before voting on an appropriation” to identify potential implied repeals); Zbaraz v. Quern, 596 F.2d
196, 199 (7th Cir. 1979) (raising the concern of “confusing and disruptive annual changes in the substantive law”).
238 United States v. Langston, 118 U.S. 389, 392 (1886) (examining Revised Statutes provision fixing salary of the
minister resident and consul general to Haiti).
239 Maine Cmty. Health Options v. United States, 140 S. Ct. 1308, 1320 (2020) (considering provision in the
Affordable Care Act directing the Secretary of Health and Human Services to make payments to firms offering health
insurance in the individual and small group markets).
240 Hill, 437 U.S. at 190 (applying the Endangered Species Act to a dam construction project on the Little Tennessee
River that would probably jeopardize survival of an endangered species).
241 Langston, 118 U.S. at 393 (considering effect of appropriation of $5,000 for the salary of the minister resident and
consul general to Haiti where substantive law fixed the official’s salary at $7,500).
242 Maine Cmty. Health Options, 140 S. Ct. at 1323 (deciding whether limitation in a regular appropriations act that
barred use of the act’s funds to make payments to insurers suspended or repealed obligation created by a statutory
directive that such payments be made).
243 Hill, 437 U.S. at 164, 167, 170, 190–92 (reviewing whether a lump-sum appropriation, dedicated in part to
continued dam construction through committee report language, excepted the dam project from the Endangered Species
Act).
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meet the obligation, without express language repealing or modifying the obligation,244 leaves
substantive law unchanged.245 Likewise, if substantive law fixes an obligation, and Congress
thereafter includes in a regular appropriations act a limitation that prohibits use of appropriated
funds to pay the obligation, on its own the limitation will not suspend or repeal the obligation.246
When substantive law prohibits a particular agency action (e.g., the construction of a dam that
would probably jeopardize an endangered species), an appropriation that is subsequently enacted
and generally available for projects of that type will not alter the substantive-law impediment.247
In these cases, it is possible to interpret the appropriations act as not effecting repeal of the
substantive law requirement, and so courts will generally presume that Congress did not intend to
modify substantive law.248
Case law can serve as data points for distinguishing these types of bare appropriations decisions,
which do not affect substantive law, from appropriations act matter that suspends or repeals
substantive law. Suppose for example that during a fiscal year substantive law would otherwise
have the effect of obligating the government to pay an amount as compensation to a third party. If
Congress then appropriates a lesser amount and specifies that the amounts provided are “full
compensation” for debts that the government will subsequently incur,249 the appropriation
suspends or repeals the substantive law provisions.250 Congress may also suspend or repeal the
substantive law requirements by stating that they “shall not take effect.”251 Congress might limit
use of appropriated amounts to pay such compensation and specify that the limitation is made
“notwithstanding” the provisions of the particular substantive law.252 A court might conclude that

244 The Constitution may separately limit Congress’s authority to abrogate an already-incurred obligation. See, e.g.,
Cherokee Nation v. Leavitt, 543 U.S. 631, 646 (2005) (“A statute that retroactively repudiates the Government’s
contractual obligation may violate the Constitution.”); cf. Lynch v. United States, 292 U.S. 571, 580 (1934) (stating that
while the need for economy in 1933 was “great,” “Congress was without power to reduce expenditures by abrogating
contractual obligations of the United States. To abrogate contracts, in the attempt to lessen government expenditure,
would be not the practice of economy, but an act of repudiation.”).
245 See, e.g., Langston, 118 U.S. at 394 (“[A] statute fixing the annual salary of a public officer at a named sum, without
limitation as to time, should not be deemed abrogated or suspended by subsequent enactments which merely
appropriated a less amount for the services of that officer for particular fiscal years.”); cf. United States v. Will, 449
U.S. 200, 224 (1980) (explaining that because appropriations acts manifested congressional intent to rescind pay raises
the pay increases were not simply consigned “to the fiscal limbo of an account due but not payable” as would be the
case if Congress simply failed to appropriate sufficient funds to meet the pay raises).
246 See Maine Cmty. Health Options, 140 S. Ct. at 1324; see also City of Chicago v. U.S. Dep’t of Treasury, Bureau of
Alcohol, Tobacco & Firearms, 423 F.3d 777, 782 (7th Cir. 2005) (contrasting limitations in 2003 and 2004 regular
appropriations acts, which prohibited use of funds to disclose information without changing substantive disclosure law,
with matter in a 2005 regular appropriations act that contained “clear expressions of Congressional intent” to preclude
disclosure).
247 See Hill, 437 U.S. at 190 (“When voting on appropriations measures, legislators are entitled to operate under the
assumption that the funds will be devoted to purposes which are lawful and not for any purpose forbidden.”).
248 Maine Cmty. Health Options, 140 S. Ct. at 1324.
249 See United States v. Fisher, 109 U.S. 143, 145–46 (1883).
250 See Maine Cmty. Health Options, 140 S. Ct. at 1325 (explaining that such cases alter the terms upon which the
government will incur obligations before it begins incurring the obligations).
251 See United States v. Will, 449 U.S. 200, 222–24 (1980) (explaining that in four successive fiscal years Congress
used appropriations acts, including matter phrased only “in terms of limiting funds,” to rescind automatic pay
adjustments that federal justices and judges would otherwise receive under preexisting substantive law).
252 See United States v. Dickerson, 310 U.S. 554, 555, 561 (1940) (“We are of opinion that Congress intended in” an
appropriations act limitation “to suspend the enlistment allowance authorized” under substantive law); see also id. at
556–57 (recounting that earlier provisions of law covering four fiscal years stated that the substantive law formula was
“suspended” and that the appropriations act provisions in question continued this suspension).
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Congress has modified substantive law in an appropriation if Congress structures its appropriation
in a way that cannot be reconciled with how substantive law would impose an obligation.253
In these examples, it is not possible for a court to give effect to both the preexisting substantive
law and the appropriations act provision. For example, suppose preexisting substantive law would
determine the amount of an obligation to be $1,000, but Congress later appropriates $900 for the
obligation subsequently incurred and states this lesser amount shall be “full compensation.”254 In
that event, the Supreme Court has stated that a court cannot give effect to both provisions—it
“cannot say that” the sum appropriated (i.e., the $900) “shall not be in full compensation” and
allow, instead, the $1,000 amount prescribed in the substantive law provision.255 Where the only
reasonable interpretation of the appropriations act provision is one that results in the modification
of substantive law, a court will likely find that the appropriations act’s text overcomes the “very
strong presumption” that Congress did not intend to change substantive law when it passed the
appropriations act.256
Determining How Long a Provision Affects Substantive Law
As to these provisions affecting substantive law, a second question commonly follows: whether
the appropriations act provision responsible for a change in substantive law has effect beyond the
fiscal year covered by the appropriations act. As noted above, the permanence (of lack thereof) of
appropriations in a regular appropriations act can be determined by consulting a statutory rule of
construction in Title 31 of the U.S. Code and common general provisions that appear in regular
appropriations acts.257 However, strictly speaking these aids refer only to the duration of the act’s
appropriations, and thus do not directly answer the question of whether other matter in the act is
temporary or permanent.258
Instead, courts and agencies employ a legal presumption to decide whether matter in a regular
appropriations act is temporary or permanent.259 Courts have noted that the core subject matter of
a regular appropriations act, the appropriations themselves, are presumptively temporary. The
appropriations are assumed to “spend their power in the course of the year.”260 Courts rely on the
presumptively temporary nature of the appropriations to draw conclusions about legislative intent
for appropriations act matter more generally. On this reasoning, it would be “somewhat unusual”

253 See United States v. Mitchell, 109 U.S. 146, 150 (1883) (examining interaction between substantive law that would
fix an individual’s salary at $400 and prohibit the Department of Interior (Interior) from providing any further
emoluments or allowances and a later appropriations act that made $300 available for salaries and further sums for
Interior to allocate as additional compensation).
254 Fisher 109 U.S. at 145–46.
255 Id.
256 Bldg. & Const. Trades Dep’t, AFL-CIO v. Martin, 961 F.2d 269, 273 (D.C. Cir. 1992).
257 See supra “Determining Duration.”
258 See 31 U.S.C. § 1301(c) (referring to the permanence or continuous availability of an “appropriation in a regular,
annual appropriation law” (emphasis added)); see also Further Consolidated Appropriations Act, 2020, Pub. L. No.
116-94, Div. A., tit. V, § 502 133 Stat. 2534, 2605 (2019) (“No part of any appropriation contained in this Act shall
remain available for obligation beyond the current fiscal year unless expressly so provided herein.” (emphasis added));
cf. Smithsfork Grazing Ass’n v. Salazar, 564 F.3d 1210, 1216 (10th Cir. 2009) (noting the presumption of fiscal-year
duration in 31 U.S.C. § 1301(c) and holding that the “the same is true of specific provisions in an appropriations bill”
that do not themselves make appropriations).
259 United States v. Vulte, 233 U.S. 509, 515 (1914) (concluding that this presumption “follows naturally from the
nature of appropriation bills” and is “fortified by the rules of the Senate and House of Representatives” discouraging
legislation on appropriations).
260 United States v. Jarvis, 26 F. Cas. 587, 588 (D. Me. 1846).
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to “find engrafted upon an act making special and temporary appropriations” a “provision which
was to have a general and permanent application to all future appropriations.”261
To avoid drawing such an “unusual” conclusion, courts presume that whatever effect an
appropriations act provision has on substantive law exists only for the fiscal year covered by the
act.262 Accordingly, it is possible for a regular appropriations act to alter substantive law, but only
for the fiscal year.263 Put differently, the intent to alter substantive law might be clear, but the
intent to make that alteration permanent might not be clear.264 When such temporary alteration of
substantive law occurs, courts often say that the appropriations act has “suspended” conflicting
provisions of substantive law.265 Once that suspension ends, usually after the fiscal year for which
the relevant act makes appropriations, the once-suspended requirements of substantive law regain
force.266
To constitute a permanent alteration of substantive law, the text of the provision must clearly
indicate that it will continue in force even after the appropriations themselves presumptively

261 Minis v. United States, 40 U.S. 423, 445 (1841); see also Jarvis, 26 F. Cas. at 588 (stating that courts are “not
accustomed to look” to appropriations acts “for permanent regulations”).
262 Whatley v. D.C., 447 F.3d 814, 819 (D.C. Cir. 2006) (“The normal presumption is that appropriations acts do not
amend substantive law, and that when they do, the change is only intended for one fiscal year.” (emphasis added)
(internal quotation marks omitted)).
263 See Seattle Audubon Soc’y v. Evans, 952 F.2d 297, 304 (9th Cir. 1991) (“In this case Congress has expressed its
intent to alter the substantive law, but has also demonstrated its intent to make this restriction effective for only a year
at a time.”).
264 See id.
265 See, e.g., United States v. Dickerson, 310 U.S. 554, 561 (1940) (“We are of [the] opinion that Congress intended in
§ 402,” a limitation in an appropriations act, “to suspend the enlistment allowance authorized by § 9” of the Basic
Military Pay Act “during the fiscal year ending on the 30th of June, 1939”). Sometimes, courts refer to a temporary
alteration of substantive law as a single-year “repeal” of the substantive law. See Granite State Chapter v. Fed. Lab.
Rels. Auth., 173 F.3d 25, 28 (1st Cir. 1999) (stating that general provision in a defense appropriations act “repealed,”
for a single fiscal year, substantive law provisions providing federal employee unions the “right” to lobby Congress on
official time). Calling such a change a “repeal” is likely a misnomer. See Brown v. Barry, 3 U.S. 365, 367 (1797) (“The
suspension of an act for a limited time, is not a repeal of it.”). A “repeal” of a federal statute has indefinite effect;
“repealed” matter must be reenacted or revived via statute before it may take effect once again. See Bender v. United
States, 93 F.2d 814, 815–16 (3rd Cir. 1937) (reversing criminal conviction for violation of an 1868 statute requiring a
distiller to post a sign advertising its status as a registered distiller because the National Prohibition Act of 1919
impliedly repealed the 1868 sign requirement and the National Prohibition Act’s repeal in 1935 did not have the effect
of reenacting or otherwise reviving those provisions of law that the National Prohibition Act itself repealed, including
the 1868 statute’s sign requirement) (applying predecessor version of 1 U.S.C. § 108). Thus, without more, provisions
of substantive law that are in fact “repealed” by an appropriations act likely would not regain effect after the end of the
fiscal year for which the act made appropriations.
266 See Bldg. & Const. Trades Dep’t, AFL-CIO v. Martin, 961 F.2d 269, 274 (D.C. Cir. 1992) (noting that an
appropriations act provision that lacks permanence “operates only in the applicable fiscal year”); Donovan v. Carolina
Stalite Co., 734 F.2d 1547, 1557 n.15 (D.C. Cir. 1984) (explaining that whatever “enforcement powers” a provision in
a continuing appropriations act “took from” the Mine Safety and Health Review Commission the powers “were
returned to the agency” when the act was superseded by another appropriations act that did not carry the same
limitation); cf. Robertson v. Seattle Audubon Soc., 503 U.S. 429, 438–39 (1992) (examining a regular appropriations
act general provision modifying timber harvesting requirements for sales offered during FY1990 and explaining that
for “challenges to sales offered before or after fiscal year 1990” the general provision “expressly reserved judgment
upon the legal and factual adequacy of the administrative documents authorizing the sales” in that the provision did not
by its terms apply to sales before or after FY1990 (internal quotation marks omitted)); United States v. Vulte, 233 U.S.
509, 515 (1914) (concluding plaintiff was entitled to a 10% bonus under a 1902 statute for service abroad in 1908-1909
because matter in 1906 and 1907 appropriations acts had only temporarily suspended the bonus entitlement); United
States v. Mitchell, 109 U.S. 146, 150 (1883) (noting that appropriations that changed the salary for designated
interpreters fixed by substantive law for designated interpreters “for the time covered by” the appropriations acts).
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expire.267 The absence of an “expiration date apparent on” the provision’s face will not suffice.268
The Supreme Court has referred to such language as “words of prospective extension,”269 while
other courts have referred to such language as indicating “futurity.”270
Congress commonly uses stock words or phrases to define the scope of a regular appropriations
act proviso or general provision, and as a result trends have developed in case law on permanence
questions. Some words or phrases overcome the presumption of temporary application; others do
not. Among the most common indications of futurity is the term “hereafter.”271 Equivalently, a
regular appropriations act provision that applies to a specific fiscal year “and thereafter” has been
deemed permanent.272
Reflecting the close scrutiny that courts apply to permanence questions, a court refused to read
the term “hereinafter” as a synonym for “hereafter,” finding instead that the term referred only to
the appropriations act containing the limitation.273 Similarly, under GAO decisions whose
reasoning courts have endorsed,274 on its own the commonly used phrase “this or any other act”
refers only to the other acts that make appropriations for the same fiscal year as the act containing
the provision whose permanence is in question.275 A court likewise held that a provision that
required the U.S. Army Corps of Engineers (the Corps) to make wetlands determinations using a
1987 manual, and not its 1989 successor, “until” the Corps adopted a new manual after notice and
comment was temporary.276
Courts look to factors beyond particular language of futurity to decide whether a provision is
temporary or permanent. For example, courts have considered whether the provision at issue
relates to appropriations or spending. If it does not, that lack of connection between the provision
and the primary function of the act in which it appears might be evidence of permanence.277

267 Martin, 961 F.2d at 274 (“[A] provision contained in an appropriations bill operates only in the applicable fiscal
year, unless its language clearly indicates that it is intended to be permanent.”).
268 Id. at 273.
269 See Vulte, 233 U.S. at 515.
270See, e.g., Nat. Res. Def. Council v. U.S. Forest Serv., 421 F.3d 797, 806 n.19 (9th Cir. 2005).
271 See Tin Cup, LLC v. U.S. Army Corps of Eng’rs, 904 F.3d 1068, 1073 (9th Cir. 2018) (“‘Hereafter’ is the most
common word of futurity.”); but see Auburn Housing Auth. v. Martinez, 277 F.3d 138, 142, 146–47 (2d Cir. 2002)
(concluding that the phrase “no funds in this Act or any other Act may hereafter be used” for certain housing assistance
applied only to funds made available by the act but did not apply to funds appropriated for subsequent fiscal years).
272 See Everytown for Gun Safety Support Fund v. Bureau of Alcohol, Tobacco, Firearms & Explosives, 984 F.3d 30,
41 (2d Cir. 2020) (observing that because a general provision stated that it applied “to fiscal year 2009 and thereafter”
the provision “would remain in effect today if Congress had not” subsequently enacted a related general provision that
the court found impliedly repealed the FY2009 provision (emphasis in original) (internal quotation marks omitted));
see also Abdeljabbar v. Bureau of Alcohol, Tobacco & Firearms, 74 F. Supp. 3d 158, 175 (D.D.C. 2014) (concluding
that the provision referring to “fiscal year 2009 and thereafter” was “a permanent prohibition” effective until later
repealed or modified).
273 See Atl. Fish Spotters Ass’n v. Evans, 321 F.3d 220, 226 (1st Cir. 2003) (stating that the “universally accepted
meaning” of “hereinafter “refers to that which follows in the same writing”).
274 See id.
275 Permanency of Weapon Testing Moratorium Contained in Fiscal Year 1986 Appropriations Act, B-222097, 65
Comp. Gen. 588, 589 (May 22, 1986) (opining that the phrase “this Act or any other Act” did “not make the anti-
satellite weapon testing restriction permanent, but rather merely extend[ed] the applicability of the restriction to any
other funds available during fiscal year 1986, in addition to funds made available by the Department of Defense
Appropriations Act, 1986” that contained the restriction).
276 See Tin Cup, LLC, 904 F.3d at 1073–74.
277 Compare Minnesota ex rel. Hatch v. Hoeven, 456 F.3d 826, 831, 833 (8th Cir. 2006) (general provision stating
policy of Congress that states should continue to regulate hunting and fishing within their boundaries including by
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Courts have also concluded that the reenactment of an appropriations act provision is evidence
that Congress intended each such enactment to be limited to the fiscal year covered by each such
enactment.278 If Congress intended a prior enactment to have had permanent effect, so the courts’
reasoning goes, it would not have reenacted the same provision for a subsequent fiscal year.279
Effect of Report Provisions
As noted above, appropriations acts are often accompanied by detailed reports containing a
variety of directives to the agencies whose programs the act funds. At a minimum, these report
directives are practically significant for the agency concerned—an agency will not ordinarily
disregard views of the Appropriations Committees on matters deemed significant enough to be
included in a committee report. A question that often arises, though, is whether seemingly
mandatory language that appears only in a report—such as language in a committee report
directing the submission of a report to the Appropriations Committees or allocating amounts
within an appropriation to a particular program—is legally binding on the agency concerned.
Would a court conclude that committee report language phrased in mandatory terms in fact
compels an agency to take, or not take, the specified acts?
The answer to that question usually will be “no”; the report serves as legislative history only. As
such, the report might aid in interpreting ambiguous language in an appropriations act, or the
report might buttress a reading of the act that is arrived at through other interpretative means,280
but it cannot impose requirements that the statute does not.
In at least one circumstance,281 of particular significance to appropriations acts, the answer may
be more nuanced. It is possible for report language to have binding effect if the language is
incorporated by reference into the appropriations act. This section discusses these concepts in
turn.
The General Rule: Report Language Alone Is Not Legally Binding
Article I, Section 7 of the Constitution establishes “a single, finely wrought and exhaustively
considered, procedure” for enacting laws.282 A bill must pass both chambers in identical form and
be presented to the President for approval. Thereafter, a bill can become law only in three
circumstances: the President signs and thereby approves the bill; Congress overrides the
President’s disapproval; or the President does not act on the bill within 10 days when Congress is

differentiating between residents and nonresidents in allocating licenses and permits) (rejecting argument that provision
was temporary as “the disputed section does not relate to appropriations and spending”), and Roccaforte v. Mulcahey,
169 F. Supp. 360, 363 (D. Mass. 1958) (noting that matter enacted in an appropriations act and exempting deportation
proceedings from the Administrative Procedure Act stood “apart from any specific item of appropriation”), with Atl.
Fish Spotters Ass’n, 321 F.3d at 225 (observing that provision barring the Department of Commerce from using
appropriated funds to issue permits to vessels that used spotter planes to fish for Atlantic bluefin tuna was “not so
foreign to the surrounding appropriations as to make it unreasonable to interpret its text as creating temporary law”).
278 See, e.g., United States v. Vulte, 233 U.S. 509, 514 (1914).
279 See id.
280 See supra notes 10–12.
281 Committee reports are also understood to figure in the implementation of reprogramming notice provisions that
appear in regular appropriations acts. See Stiff, Power Over Appropriations, supra note 51, at 36–37.
282 INS v. Chadha, 462 U.S. 919, 951 (1983).
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in session.283 Congress only exercises legislative power in text that is enacted in this way.284 The
houses do not vote on reports that are drafted to accompany a regular appropriations act. For that
reason, the reports, themselves, do not have the force of law.285
A case in point, Roeder v. Islamic Republic of Iran, involved a default judgment on liability
against the Islamic Republic of Iran, obtained by victims of the 1979 hostage crisis.286 Prior to a
hearing on damages, the U.S. Department of State (State) intervened to have the default judgment
vacated and the case dismissed on the separate grounds (1) that the FSIA deprived the district
court of jurisdiction over claims against Iran and (2) that an executive agreement with Iran barred
the claims.287 Congress responded in two appropriations acts, amending FSIA to defeat State’s
first argument.288 Joint explanatory statements that accompanied both acts’ conference reports
stated that the FSIA amendments “quashe[d]” State’s motion.289 The second joint explanatory
statement added that the amendments allowed the default judgment to stand as a basis to award
damages to the plaintiffs.290
While the appropriations acts amended FSIA, the U.S. Court of Appeals for the D.C. Circuit
(D.C. Circuit) held that the acts did not abrogate the executive agreement.291 Moreover, while the
explanatory statement for the second appropriations act included broad language that might, if
enacted, “abrogate an executive agreement,” the D.C. Circuit concluded that those statements
lacked the force of law because “Congress did not vote on the [joint explanatory] statement and
the President did not sign a bill embodying it.”292
While Roeder involved substantive amendments to the jurisdiction of federal courts, a subject that
is outside the normal remit of an appropriations act, the rule applied in Roeder equally applies to
report provisions that attempt to regulate use of budget authority in a manner that the
appropriations act does not. For example, the Consolidated and Further Continuing
Appropriations Act, 2013, appropriated $500,000 as a line item within the Federal Bureau of
Investigations (FBI) Salaries and Expenses appropriation to review the implementation of
recommendations made by the National Commission on Terrorist Attacks Upon the United States
(the 9/11 Commission) related to the FBI.293 The act’s explanatory statement required the FBI to
submit to the Appropriations Committees a report detailing results of this review and defined the
scope of the review to include consideration of any new evidence “now known to the FBI that

283 See U.S. CONST. art. I, § 7, cl. 2.
284 See Fin. Oversight & Mgmt. Bd. for P.R. v. Aurelius Inv., LLC, 140 S. Ct. 1649, 1656 (2020).
285 See Am. Hosp. Ass’n v. N.L.R.B., 499 U.S. 606, 616 (1991).
286 333 F.3d 228 (D.C. Cir. 2003).
287 Id. at 231.
288 Id. at 235 (noting that the appropriations acts’ amendments to the Foreign Sovereign Immunity Act (FSIA) “created
an exception, for this case alone, to Iran’s sovereign immunity, which would otherwise have barred the action”).
289 H.R. REP. NO. 107-278, at 170 (2001) (conf. rep. joint explanatory statement); H.R. REP. NO. 107-350, at 422 (2001)
(conf. rep. joint explanatory statement).
290 See H.R. REP. NO. 107-350, at 422 (2001) (conf. rep. joint explanatory statement) (stating that the FSIA
amendments “acknowledge[d] that, notwithstanding any other authority, the American citizens who were taken hostage
by the Islamic Republic of Iran in 1979 have a claim against Iran under the Antiterrorism Act of 1996 and the provision
specifically allows the judgment to stand for purposes of award damages”).
291 Roeder, 333 F.3d at 236 (“The amendments do not, on their face, say anything about the Accords. They speak only
to the antecedent question of Iran’s immunity from suit in United States courts.”).
292 Id. at 237.
293 Consolidated and Further Continuing Appropriations Act, 2013, Pub. L. No. 113-6, Div. B, tit. II, 127 Stat. 198, 247
(2013).
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was not considered by the 9/11 Commission” concerning factors that contributed to the attacks.294
According to individual and organizational plaintiffs, the FBI report did not consider certain new
alleged evidence of the causes of the terrorist attack. These plaintiffs sued, citing the FBI’s failure
to comply with the supposed report mandate.295 A court rejected their claims for lack of standing,
finding that the FBI did not in fact have a duty under the appropriations act to submit a report
detailing its review, which in turn meant that the plaintiffs had not adequately pled any injury for
failure to comply with the supposed report mandate. The appropriations act merely funded the
review; the act did not require the FBI to prepare a report detailing its review, and the explanatory
statement could not impose that requirement on its own.296
Similarly, the Consolidated Appropriations Act, 2014, appropriated amounts for certain
Department of Labor (DOL) contracts for the operation and maintenance of Job Corps
facilities.297 The act’s explanatory statement directed DOL to give “due consideration” to high-
performing incumbent contractors when renewing or rebidding such contracts.298 In rebidding one
contract DOL used a small business set-aside, thus barring the incumbent contractor, which did
not qualify as a small business, from competing.299 The incumbent sued, arguing in part that use
of a set-aside disregarded “congressional instructions.”300 The Court of Federal Claims dismissed
the incumbent contractor’s claims.301 The appropriations act merely appropriated amounts to fund
Job Corps operations and maintenance contracts; the act did not impose any requirements
concerning DOL’s means of procuring of such services.302
In each of these cases, Congress passed a bill making regular appropriations, and one or more
committees wrote a report relating to the bill. The reports included language that by its terms
sought to impose requirements or limitations on agencies—modifying executive agreements,
requiring report submission, or dictating how services would be procured. However, the reports
were not voted on by both houses, much less presented to the President for approval, and thus the
reports’ seemingly mandatory language imposed no binding requirements on relevant agencies.
The Exception: Incorporation by Reference
A common feature of modern-day regular appropriations acts poses a variation on the question of
whether committee reports can impose binding requirements: If a report, standing alone, may not

294 159 CONG. REC. S1305 (daily ed. Mar. 11, 2013) (“The FBI shall submit a report to the Committees, no later than
one year after enactment of this Act, on the findings and recommendations resulting from this review.”).
295 See Lawyers’ Committee for 9/11 Inquiry, Inc. v. Wray, 424 F. Supp. 3d 26, 29 (D.D.C. 2020), aff’d 848 F. App’x.
428 (D.C. Cir. 2021).
296 Id. at 31 (“Even if some legislators wanted the FBI to issue a report—and to disclose information in doing so—the
legislature enacted no disclosure requirement.”); see also Lawyers’ Comm. for 9/11 Inquiry, Inc. v. Wray, 848 F.
App’x 428, 430 (D.C. Cir. 2021) (stating that “as the district court noted, the text of this provision does not require the
disclosure of information” and that even assuming the explanatory statement “were relevant in interpreting an
appropriations provision that unambiguously stops short of imposing any public disclosure requirement, the
explanatory statement also makes no mention of disclosure of any information to the public” (emphasis in original)
(internal quotation marks omitted)).
297 See Consolidated Appropriations Act, 2014, Pub. L. No. 113-76, Div. H, tit. I, 128 Stat. 5, 349–50 (2014) (Office of
Job Corps); see also Adams & Assocs., Inc. v. United States, 120 Fed. Cl. 250, 251 (2015).
298 160 CONG. REC. H1033 (daily ed. Jan. 15, 2014).
299 See Adams & Assocs., Inc., 120 Fed. Cl. at 250–51.
300 See id. at 251.
301 Id.
302 Id. at 253 (“[T]he Act needs no explanation. It merely appropriates money. There is no ambiguity as to meaning.”).
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impose binding requirements, may an appropriations act be written to give effect to report text
without repeating that report text in the act itself? Modern-day appropriations acts often refer to
allocations of funds or other directives contained in an accompanying committee report303 or
classified annex304 in terms that appear intended to give effect to those allocations or directives.
Though no case law appears to address the permissibility of this particular mode of legislating as
a means of regulating the use of budget authority provided in a regular appropriations act,
decisions in analogous contexts appear to sanction its use.305 This case law suggests that an
appropriations act gives legal effect to nonstatutory matter when the appropriations act contains
legally sufficient words of incorporation for extrinsic matter that exists at the time the measure
was enacted into law. Administrative interpretations from GAO and the Department of Justice
(DOJ) confirm this conclusion.306
Incorporation by reference “antedates the federal system.”307 The centuries-old application of the
doctrine to the law of wills demonstrates its operation. Historically, a testator (i.e., a person who
makes a will) was required to follow certain formalities to execute a will—a legally significant
document detailing how the testator’s property would be disposed upon death.308 In 1607, the
Court of King’s Bench concluded that a will made a “good devise” of rents, even though the will
itself referred only to “several annuities or annual rents” described in other writings that were not
themselves executed.309 If the will is validly executed and unambiguously refers to a second
document that contains the text to be incorporated, the text of the second document may be
treated as part of the will even though the second document did not adhere to testamentary
formalities.310

303 See supra note 90 and accompanying text (quoting recurring general provision of the Department of State, Foreign
Operations, and Related Programs Appropriations Act providing that certain appropriations “shall be made available in
the amounts specifically designated in the respective tables included in the explanatory statement”).
304 See Consolidated Appropriations Act, 2021, Pub. L. No. 116-260, Div. C, tit. VIII, § 8006(a) (2020).
305 The use of incorporation by reference may raise legal questions beyond whether that method of legislating complies
with the “finely wrought” lawmaking process set forth in Article I, § 7. Cf. United States v. Lanier, 520 U.S. 259, 264
n.3, 264–67 (1997) (statute criminalizing the willful deprivation of “any rights, privileges, or immunities secured or
protected by the Constitution or laws of the United States” while acting under color of law) (discussing standard that
applies to deciding whether the statute, which “in lieu of describing the specific conduct it forbids” incorporated
“constitutional law by reference,” provided fair warning that particular conduct is criminal).
306 Comm. Resolutions Under 40 U.S.C. § 3307(a) and the Availability of Enacted Appropriations, 2018 WL 3450206
(O.L.C. Jan. 26. 2018); Consolidated Appropriations Act, 2008—Incorporation by Reference, B-316010, 2008 WL
540192 (Comp. Gen. Feb. 25, 2008).
307 Gen. Elec. Co. v. Brenner, 407 F.2d 1258, 1261 (D.C. Cir. 1968).
308 See, e.g., John H. Langbein, Substantial Compliance with the Wills Act, 88 HARV. L. REV. 489, 489–90 (1975)
(describing the law of wills as “notorious for its harsh and relentless formalism” and listing testamentary formalities
such as requirements that a testator sign a will in the presence of witnesses who then attest that the testator in fact
signed the will).
309 See Molineux v. Molineux (1607), 79 Eng. Rep. 126, 126–27 (K.B).
310 See Habergham v. Vincent (1793), 30 Eng. Rep. 595, 607 (K.B.) (“[I]f a testator refers [in the will] expressly to any
paper already written, and has so described it, that there can be no doubt of the identity [of the paper], and the will is
executed” in accordance with law, “that paper, whether executed or not, makes part of the will.”); see also Cyfers v.
Cyfers, 233 W. Va. 528, 533–34 (2014) (similar statement as in Habergham); Gail Boreman Bird, Sleight of
Handwriting: The Holographic Will in California, 32 HASTINGS L.J. 605, 625 (1981) (discussing Habergham and
characterizing incorporation by reference as “a magical process by which a document not complying with testamentary
formalities is given testamentary effect”).
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It is one thing to say that a will, contract,311 or prior art document312 may employ incorporation by
reference to give legal effect to extrinsic matter. It is another thing to say the same of a statute,
given the Constitution’s “finely wrought” requirements for lawmaking.313 One court appears to
have considered this latter proposition in the context of a reference to nonstatutory matter in an
appropriations act, albeit not in the context of a reference that sought to regulate the use of budget
authority. In Hershey Foods Corp. v. U.S. Department of Agriculture, a district court concluded
that the Consolidated Appropriations Act, 2000 (CAA), enacted into law a federal milk marketing
order that was originally issued as a rule.314 Rather than repeat the text of the order, the CAA
employed a double cross-reference: the CAA stated that a specific bill was “hereby enacted into
law,” and the referenced bill, in turn, referred to the order by its Federal Register citation.315
Hershey challenged this method of enactment, arguing that the Constitution required “the entire
text of a purported law [to] be voted on by both houses of Congress and presented to the
President.”316
The district court rejected that challenge.317 The Constitution’s text did not directly speak to
whether legislation could employ incorporation by reference, nor did case law.318 For guidance on
this question, the district court looked to the Presentment Clause’s purpose, which includes
providing the President a “suitable opportunity to consider the bills presented” for approval.319
The district court doubted that a court could review whether the President adequately reviewed a
bill before signing it.320 In terms familiar to incorporation by reference doctrine more generally,321
the court went on to stress that the CAA clearly identified extrinsic matter that existed at the time

311 See, e.g., Am. Fed’n of Labor v. W. Union Tel. Co., 179 F.2d 535, 538 (6th Cir. 1950) (interpreting collective
bargaining agreement) (“Where a contract makes reference to another agreement between the same parties in such
fashion as to clearly import incorporation by reference, the contract and the pre-existing document should be read
together and considered as one binding agreement or contract.”).
312 See, e.g., Advanced Display Sys. v. Kent State Univ., 212 F.3d 1272, 1282 (Fed. Cir. 2000) (considering whether a
single prior art document, including any incorporated material, anticipated a claimed invention) (“[T]he host document
must identify with detailed particularity what specific material it incorporates and clearly indicate where that material is
found in the various documents.”).
313 See supra notes 282–284 and accompanying text.
314 158 F. Supp. 2d 37, 38 (D.D.C. 2001), aff’d sub nom. Hershey Foods Corp. v. Dep’t of Agric., 293 F.3d 520 (D.C.
Cir. 2002). The basis for this ruling is unclear—the relevant district court order states only that after considering
briefing from the parties it appeared to the district court that “the rule originally challenged by plaintiff has been
enacted into legislation.” See Order Sua Sponte Dismissing Plaintiff’s Complaint at 1, Hershey Foods Corp. v. U.S.
Dep’t of Agric., No. 99-2138 (EGS) (Dec. 30, 1999). However, the U.S. Court of Appeals for the District of Columbia
Circuit subsequently decided that the appropriations act—the “legislation” referred to in the district court’s order—did
not enact into law the relevant portions of the milk marketing order, rejecting the district court conclusion that was the
predicate for the constitutional claim included in Hershey’s amended complaint. See Hershey Foods Corp., 293 F.3d at
526 (affirming on other grounds) (“Congress sought only to legislate the terms of the Class I price differentials, not the
entire milk marketing system. The Class II price remains the product of agency action and is subject to judicial review
as such.”). Nevertheless, because it is evidently the only judicial decision examining whether Congress may incorporate
non-statutory matter in an appropriations act, the district court’s analysis is instructive.
315 Hershey Foods Corp., 158 F. Supp. 2d at 38.
316 Id. at 38–39 (emphasis added).
317 Id. at 41.
318 Id. at 39–40.
319 Wright v. United States, 302 U.S. 583, 596 (1938); see also Hershey Foods Corp., 158 F. Supp. 2d at 39–40.
320 Hershey Foods Corp., 158 F. Supp. 2d at 41 (“The Court agrees with [the government] that the President’s decision
whether to sign a bill is a non-justiciable political question. The Constitution provides no guidance for judicial review
of the adequacy of the President’s consideration of a bill.” (internal citation omitted)).
321 See supra text accompanying note 310 & notes 311–312.
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the President signed the CAA, permitting the President to review the referenced material granting
his approval of the act.322
Administrative decisions and practice confirm Hershey Foods Corp.’s conclusion. In 2008, GAO
concluded that provisions in the Consolidated Appropriations Act, 2008, that incorporated
limitations contained only in the act’s explanatory statement imposed binding requirements on the
agencies concerned.323 In describing particular appropriations in the statute, Congress plainly
intended to employ incorporation by reference of extrinsic material that existed before the bill’s
enactment. Moreover, the incorporated matter could be ascertained with certainty.324
The DOJ has also recognized Congress’s ability to use incorporation by reference as means of
imposing limitations on budget authority. A statute directs that appropriations “may be made” to
construct, alter, acquire, or lease a public building at a cost of more than $1.5 million only if
certain congressional committees (though not Congress as a whole) adopt resolutions approving
the appropriation’s purpose.325 DOJ concluded that the statute specified only how Congress
would make appropriations (i.e., only after committee approval for particular projects) but that
the statute did not state any limitations on how the executive branch could obligate or expend
enacted appropriations.326 DOJ observed that Congress could use resolutions to impose conditions
on enacted authority, but only if Congress recited existing committee-resolution conditions “in
the text of the statute” or referenced an existing committee resolution in the statute.327 When
Congress has clearly expressed an intent to incorporate report matter into the text of an
appropriations act, DOJ has described the incorporated matter as binding on an agency’s use of
the affected appropriation.328

322 See Hershey Foods Corp., 158 F. Supp. 2d. at 41 (“The incorporated bill ([H.R. ]3428) was published in the
Congressional Record, and the final rule was issued by a Cabinet Department under the President’s supervision. Both
were public documents available to the President before the Appropriations Act was even passed.”).
323 Consolidated Appropriations Act, 2008—Incorporation by Reference, B-316010, 2008 WL 540192, at *8 (Comp.
Gen. Feb. 25, 2008) (concluding that the affected agencies “are required to obligate and expend the appropriations in
accordance with the referenced provisions of the explanatory statement”). These limitations either required an
appropriation to be allocated according to an explanatory statement’s allocation tables or made an appropriation subject
to terms and conditions contained in the explanatory statement. Id. at *1–3 (describing provisions under review).
324 Id. at *8 (“The seven provisions at issue here . . . evidence clear congressional intent to incorporate specific
amounts, and in some cases terms and conditions, ascertainable with certainty by reference to the explanatory statement
printed in the Congressional Record on December 17, 2007.”).
325 40 U.S.C. § 3307(a)(1). The statute directs the General Services Administration to submit a “prospectus” to “secure
consideration” for the committees’ “approval.” Id. § 3307(b). For examples of committee resolutions adopted under
this authority, see RESOLUTIONS ADOPTED BY THE COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS UNITED STATES
SENATE APPROVING WATER PROJECTS AND PUBLIC BUILDING PROSPECTUSES DURING THE 114TH CONGRESS, S. PRT. NO.
114-40 (2018) (collecting committee resolutions adopted under 40 U.S.C. § 3307).
326 Comm. Resolutions Under 40 U.S.C. S 3307(a) and the Availability of Enacted Appropriations, 2018 WL 3450206,
at *3 (O.L.C. Jan. 26. 2018) (explaining that the statute “makes committee approval a prerequisite to the enactment of
an appropriation, but it does not regulate the actions of the Executive Branch or anyone else”). However, one
subsection of the statute did appear to tie use of enacted appropriations to the committee approval process. See 40
U.S.C. § 3307(c) (permitting construction or alteration costs of a committee-approved project to increase not more than
10% above the estimated maximum cost set forth in a prospectus). The DOJ read this subsection in concert with the
statute’s other provisions to impose procedural limitations on Congress only, and buttressed this view by arguing a
different reading raised the specter of an “unconstitutional legislative veto.” See Comm. Resolutions Under 40 U.S.C. S
3307(a), 2018 WL 3450206, at *7–8; see also Stiff, Power Over Appropriations, supra note 51, at 38.
327 Comm. Resolutions Under 40 U.S.C. S 3307(a), 2018 WL 3450206, at *8.
328 Brief of Defendant-Appellant United States at 20, South Carolina v. United States, No. 19-2324 (Fed. Cir. Dec. 18,
2019) (stating that the Department of Energy “may not use appropriated funds” for programs, projects, or activities
“not identified in the [incorporated allocation] table” that was set forth in the act’s explanatory statement).
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Preceding Matter Concerning the Explanatory Statement
Given the potential for a statute to incorporate by reference matter appearing only in a report, the
question occasionally arises of how to interpret a common provision of modern-day
appropriations acts that makes reference to the act’s explanatory statement and carries a directive
concerning the effect the statement will carry. This provision appears in an act’s preceding matter
and reads along the following lines:
The explanatory statement regarding this Act, printed in the House section of the
Congressional Record on or about [a date certain], and submitted by the Chairwoman of
the Committee on Appropriations of the House, shall have the same effect with respect to
the allocation of funds and implementation of Divisions A through D of this Act as if it
were a joint explanatory statement of a committee of conference.329
A version of this preceding matter provision first appeared in statute in the Consolidated
Appropriations Act, 2008,330 a measure “developed through a legislative procedure referred to as
‘amendments between the Houses.’”331 Ever since, Congress has included the provision in
statutes making regular appropriations that were enacted using an exchange of amendments
between the houses to resolve differences in House- and Senate-passed versions of regular
appropriations bills.332 The provision does not appear in appropriations acts, enacted after 2008,
whose chamber differences were resolved using a conference committee.333
On its own, the preceding matter provision likely does not incorporate explanatory statement text
into the act. The text of the provision lacks “clear congressional intent to incorporate by
reference” material in the explanatory statement.334 That is, the provision does not state (for
example) that an agency may only obligate the appropriations made available in the act according
to allocations set forth in the explanatory statement.335 The provision only likens the act’s
explanatory statement to a joint explanatory statement of a conference committee, a document
that, on its own, also does not impose binding requirements.336 Accordingly, in cases involving
statutes that include such preceding matter provisions—statutes making regular appropriations337

329 See, e.g., Consolidated Appropriations Act, 2020, Pub. L. No. 116-93, § 4, 133 Stat. 2317, 2318 (2019).
330 Compare id., with, Consolidated Appropriations Act, 2008, Pub. L. No. 110-161, § 4, 121 Stat. 1844, 1846 (2007).
331 See H. COMM. ON APPROPRIATIONS, 1 CONSOLIDATED APPROPRIATIONS ACT, 2008, at v (Comm. Print 2008) (Clerk’s
Note).
332 See H. COMM. ON APPROPRIATIONS, 1 CONSOLIDATED APPROPRIATIONS ACT, 2018, at v (Comm. Print 2018) (Clerk’s
Note) (“Because an ‘amendments-between-the-Houses’ process was used instead of a conference committee, there is
no conference report and no ‘joint Explanatory Statement of the managers’” for the Act).
333 See, e.g., Consolidated Appropriations Act, 2010, Pub. L. No. 111-117, 123 Stat. 3034, 3035 (2009); see also 155
CONG. REC. S13,131 (daily ed. Dec. 13, 2009) (Senate vote agreeing to H. Rep. No. 111-366 (conf. rep.)); 155 CONG.
REC. H14,479 (daily ed. Dec. 10, 2009) (House vote agreeing to H. Rep. No. 111-366 (conf. rep.)).
334 Consolidated Appropriations Act, 2008—Incorporation by Reference, B-316010, 2008 WL 540192, at *5 (Comp.
Gen. Feb. 25, 2008).
335 See, e.g., Consolidated Appropriations Act, 2020, Pub. L. No. 116-93, Div. A, tit. VIII, § 8006(a), 133 Stat. 2317,
2335 (2019) (stating that for programs, projects, or activities identified in the explanatory statement’s Explanation of
Project Level Adjustments tables for which the act appropriated more funds than were requested for the program “the
obligation and expenditure” of those amounts “are hereby required by law to be carried out in the manner provided by
such tables to the same extent as if the tables were included in the text of this Act”).
336 See Roeder v. Islamic Republic of Iran, 333 F.3d 228, 237 (D.C. Cir. 2003) (“[C]ontrary to what plaintiffs suggest,
the explanatory remarks in the ‘conference report’ do not have the force of law.”).
337 Lawyers’ Committee for 9/11 Inquiry, Inc. v. Wray, 424 F. Supp. 3d 26, 29 (D.D.C. 2020), aff’d 848 F. App’x. 428
(D.C. Cir. 2021), and Adams & Associates, Inc. v. United States, 120 Fed. Cl. 250 (Fed. Cl. 2015), discussed above,
involved explanatory statements that the preceding matter of a regular appropriations act likened to a joint explanatory
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and National Defense Authorizations Acts338—courts have not given binding effect to matter that
appeared only in the referenced explanatory statement and was not alleged to be incorporated into
the act by a provision other than the preceding matter provision.
Rather than effect incorporation by reference, the preceding matter provision likely serves the
more limited role of identifying, for a given regular appropriations act, a document that will serve
the same function as a joint explanatory statement of a conference committee, even though the
regular appropriations act was not enacted using a conference committee and therefore lacks a
joint explanatory statement. The practical significance of this directive is that it may result in a
court giving greater weight to the explanatory statement than to other evidence of legislative
intent, such as a committee report written by a single committee.
A conference committee is one method of resolving differences between the House- and Senate-
passed versions of the same measure.339 Under this method, a conference committee consisting of
Members of each chamber meets and negotiates resolution of chamber differences, a proposed
resolution that the conference committee memorializes in a conference report. The chambers then
vote on whether to agree to the conference report.340
House and Senate rules require that a joint explanatory statement accompany a conference report.
The statement details the effect that the amendments or propositions of the conference report will
have on the bill to which they relate.341 The conference report and joint explanatory statement are
printed together, usually in a report of the House of Representatives,342 but the houses vote only

statement of a conference committee. See supra notes 293–302 and accompanying text.
338 Several district courts considered claims arising out of a Department of Defense proposal to bid certain contracts for
janitorial and other custodial services at certain military base cafeterias without providing Randolph-Shepard Act
(RSA) priorities to blind vendors. The explanatory statement accompanying the FY2015 National Defense
Authorization Act stated that the RSA did not apply to these contracts. See 160 CONG. REC. H8691 (daily ed. Dec. 4,
2014) (distinguishing between full food services contracts and dining facility attendant services contracts). The district
courts rejected the explanatory statement’s conclusion. See Tex. Workforce Comm’n v. U.S. Dep’t of Educ., Rehab.
Servs. Admin., 2018 WL 8619799, at *15 (W.D. Tex. Mar. 28, 2018) (stating that the explanatory statement “cannot be
used to create congressional intent to narrow the RSA’s scope”); SourceAmerica v. U.S. Dep’t of Educ., 2018 WL
1453242, at *10 (E.D. Va. Mar. 23, 2018) (explanatory statement did not carry the force of law and thus did not impose
a rulemaking requirement concerning military cafeteria contracts that plaintiff could enforce under the Administrative
Procedures Act); Kentucky v. United States, 2017 U.S. Dist. LEXIS 41229, *6 (W.D. Ky. 2017) (“The joint
explanatory statement [sic] does not carry the force of law.”); Kansas v. United States, 171 F. Supp. 3d 1145, 1163 (D.
Kan. 2016) (stating that the explanatory statement was “not the law”), aff’d in part sub nom. Kansas v. SourceAmerica,
874 F.3d 1226 (10th Cir. 2017).
339 See CRS Report 98-696, Resolving Legislative Differences in Congress: Conference Committees and Amendments
Between the Houses, by Elizabeth Rybicki, at 4 (“One method [for resolving legislative differences] involves a
conference committee—a panel of Members representing each house that attempts to negotiate a version acceptable to
both chambers.”).
340 CRS Report 96-708, Conference Committee and Related Procedures: An Introduction, by Elizabeth Rybicki, at 5–8.
341 See RULES OF THE HOUSE, supra note 29, at Rule XXII, cl. 7(e) (“Each such [conference] report shall be
accompanied by a joint explanatory statement prepared jointly by the managers on the part of the House and the
managers on the part of the Senate. The joint explanatory statement shall be sufficiently detailed and explicit to inform
the House of the effects of the report on the matters committed to conference.”); STANDING RULES OF THE SENATE,
S.DOC.NO. 113-18, at Rule XXVIII, cl. 7 (2013) (“[S]uch [conference] report shall be accompanied by an explanatory
statement prepared jointly by the conferees on the part of the House and the conferees on the part of the Senate. Such
statement shall be sufficiently detailed and explicit to inform the Senate as to the effect which the amendments or
propositions contained in such report will have upon the measure to which those amendments or propositions relate.”).
342 Each chamber has a rule stating, in substance, that reports made by a conference committee to that chamber will be
printed, together with the report’s joint explanatory statement, as a report of that chamber. See RULES OF THE HOUSE,
supra note 29, at Rule XXII cl. 7(e); STANDING RULES OF THE SENATE, supra note 341, at Rule XXVIII, cl. 7. However,
the provisions of the Senate rule are usually modified or suspended, such that only a report of the House of
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on the conference report. Chamber rules do not require a joint explanatory statement when the
houses resolve chamber differences using an exchange of amendments.343
When determining legislative intent for a statute enacted as a result of conference committee
action, courts have frequently given greater weight to a joint explanatory statement of a
conference committee than to other evidence of legislative intent for the same statute, including a
committee report written by a single committee. Demby v. Schweiker is an often-cited statement
of this approach.344 There, the D.C. Circuit concluded that a rescission in a supplemental
appropriations act did not impliedly repeal a permanent-law provision requiring that not less than
10% of certain funds be set aside for dental residency program grants.345
The supplemental appropriations act’s legislative history included reports, separately drafted by
the House and Senate Appropriations Committees, indicating that the dental residency programs
should be funded at less than the 10% level.346 However, as an aid in interpreting statutory text,
Judge MacKinnon gave greater weight to the joint explanatory statement that accompanied the
act’s conference report. Judge MacKinnon explained that the joint explanatory statement
“represent[ed] the final statement of terms agreed to by both houses.”347 Thus, “next to the statute
itself,” the joint explanatory statement was “the most persuasive evidence of congressional
intent.”348 Many federal courts of appeals have followed suit,349 placing joint explanatory
statements at or near the top of the “hierarchy of legislative history.”350 Similarly, the Supreme

Representatives is prepared. See RIDDICK’S SENATE PROCEDURE: PRECEDENTS AND PRACTICES, S. DOC. NO. 101-28, at
491 (1992).
343 See CRS Report RL34611, Whither the Role of Conference Committees: An Analysis, by Walter J. Oleszek, at 28.
344 671 F.2d 507 (D.C. Cir. 1981); see also Moore v. District of Columbia, 907 F.2d 165, 175 (D.C. Cir. 1990)
(referring to proceedings in conference as the “strongest evidence” of legislative intent on the question of whether a
statute allowed a party who prevailed in certain administrative proceedings to recover attorney’s fees incurred in the
administrative proceedings).
345 Demby, 671 F.2d at 513 (MacKinnon, J., announcing judgment of the court) (finding no implied repeal); see also id.
(Skelly Wright, J., specially concurring) (reaching same result but for different reasons).
346 See id. at 514 (Wald, J., dissenting).
347 Id at 510 (MacKinnon, J., announcing judgment of the court). In particular, Judge MacKinnon’s analysis relies on
matter detailing how the conference committee proposed to resolve disagreement between the chambers as to the size
of the rescission. Id. Judge MacKinnon’s opinion imprecisely states that this information appears in the “conference
report”; the material appears instead in the conference report’s joint explanatory statement. See H.REP. NO. 97-124, at
72–73 (1981) (conf. rep. joint explanatory statement) (referenced in Demby, 671 F.2d at 510 (MacKinnon, J.,
announcing judgment of the court)); see also H.REP. NO. 97-124, at 1–15 (1981) (conf. rep.). The D.C. Circuit has
recognized a similar imprecision exists in many opinions—including in opinions discussed elsewhere in this report—
that examine joint explanatory statements of conference committees. See Roeder v. Islamic Republic of Iran, 333 F.3d
228, 236 (D.C. Cir. 2003) (“Courts, including the Supreme Court, have not always been precise about” the distinction
between a conference report and its accompanying joint explanatory statement, “referring sometimes to material in
joint explanatory statements as the conference report.”). The distinction is an important one to draw correctly, though,
because the chambers vote on the conference report but not on its joint explanatory statement. See id.
348 Demby, 671 F.2d at 510 (MacKinnon, J., announcing judgment of the court).
349 See, e.g., Resol. Tr. Corp. v. Gallagher, 10 F.3d 416, 421 (7th Cir. 1993) (“We must first examine the Conference
Report because it is the most persuasive evidence of congressional intent besides the statute itself.”); Cohn v. United
States, 872 F.2d 533, 534 (2d Cir. 1989) (similar); Kuehner v. Heckler, 778 F.2d 152, 160 (3d Cir. 1985) (“The Joint
Statement is a particularly useful indicator of legislative intent because, more than any other document, it reflects the
sentiments of both houses. It is the closest we have to an ‘official legislative interpretation’” of the Social Security
Disability Benefits Reform Act of 1984. (internal quotation marks omitted)); Sierra Club v. Clark, 755 F.2d 608, 615–
16 (8th Cir. 1985) (stating that the conference report “must be given great weight”).
350 CRS Report R45153, Statutory Interpretation: Theories, Tools, and Trends, by Valerie C. Brannon, at 40 & fig.1.
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Court has suggested that a particular document “would be due great weight” if it were the product
of a conference committee.351
On occasion, though, federal courts have disagreed over the weight due to a legislative history
document that arguably was intended to serve the same purpose as a joint explanatory statement
for a statute enacted after an exchange of amendments between the houses. One such statute is the
Bankruptcy Reform Act of 1978.352 Prior to final passage, bill managers in each chamber inserted
lengthy remarks into the Congressional Record. The bill managers’ remarks sought to “explain”
how the proposed amendment exchange would resolve differences in the House- and Senate-
passed versions of the bill.353
As a “significant” overhaul to bankruptcy law,354 the federal courts often referred to the
Bankruptcy Reform Act’s legislative history to answer a range of statutory interpretation
questions. Treatment of the bill managers’ joint statement varied. The Second Circuit, for
example, characterized the joint statement as “offered in lieu of a conference report by the
principal sponsors of the Act” and therefore “entitled to great weight.”355
However, in In re Burns, the Eleventh Circuit disagreed.356 The Eleventh Circuit noted features of
conference committees that contribute to “the clout that conference committee reports carry” as
evidence of legislative intent—conferees are “traditionally elite” (e.g., committee chairs, bill
sponsors, or floor managers), and chamber rules give special structure to conference proceedings
and privileged floor consideration for conference reports.357 Because the Bankruptcy Reform Act
joint statement was not the product of a conference committee, it did not carry those same
“indicia of reliability.”358 Thus, the joint statement was akin to a statement of a bill sponsor—
“somewhat useful” as a “piece of legislative history” but not owed the “controlling” weight that a
joint explanatory statement would enjoy.359

351 Nat’l Ass’n of Greeting Card Publishers v. U.S. Postal Serv., 462 U.S. 810, 832 n.28 (1983) (concluding that a
“Statement of Managers” did not have “the status of a conference report” or “even a report of a single House available
to both Houses” because it “became available only after the Senate had completed its consideration” of a bill’s
conference report).
352 Pub. L. No. 95-598, 92 Stat. 2549 (1978). Congress enacted the statute through an exchange of amendments
between the houses. See 124 CONG. REC. 34,143, 34,145 (Oct. 6, 1978) (agreeing to the Senate amendment to the
House amendment to H.R. 8200); 124 CONG. REC. 34,019 (Oct. 5, 1978) (agreeing to the motion to concur in the House
amendment to H.R. 8200 with an amendment).
353 See, e.g., 124 CONG. REC. 33,992 (Oct. 5, 1978) (statement of Sen. DeConcini) (“This statement is made in my
capacity as chairman of the Subcommittee on Improvements in Judicial Machinery of the Senate Committee on the
Judiciary, in order to explain the House amendment to the Senate amendment to H.R. 8200.”).
354 See, e.g., N. Pipeline Const. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 53–54 (1982) (plurality) (noting that after
“almost 10 years of study and investigation” the Bankruptcy Reform Act “made significant changes in both the
substantive and procedural law of bankruptcy”).
355 In re Spong, 661 F.2d 6, 10 (2d Cir. 1981).
356 887 F.2d 1541 (11th Cir. 1989).
357 Id. at 1548 n.8.
358 Id. at 1548–59.
359 Id. at 1549 (internal quotation marks omitted); cf. D. C. Fed’n of Civic Ass’ns, Inc. v. Volpe, 434 F.2d 436, 444
n.38 (D.C. Cir. 1970) (“The ‘Statement of the Managers on the Part of the House’ was only appended to the
Conference Report. It did not represent the will of the Senate conferees and can only be said to represent the personal
opinions of those who signed it.”).
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More recent360 regular appropriations acts have frequently become law through an exchange of
amendments between the houses and not through a conference committee.361 Under the reasoning
in In re Burns, the explanatory statements that accompany these acts might be thought to lack the
“indicia of reliability” that characterize joint explanatory statements.
The preceding matter provision concerning the explanatory statement likely changes that
conclusion. The concern of cases such as In re Burns is that a court might misjudge legislative
intent by giving undue weight to the “[s]tray comments” of “individual legislators.”362 In the
preceding matter provision, though, Congress itself has directed that a statement inserted into the
Congressional Record by one or two Members363 is not simply the “stray” comments of those
legislators but rather should be treated as a joint explanatory statement of a conference
committee—that is, as the authoritative congressional statement concerning the bill that it
accompanies. Accordingly, with the preceding matter provision Congress appears to have directed
that to the extent a court or agency examines a regular appropriations act’s legislative history, it
should refer first to the explanatory statement and give it priority over other markers of legislative

360 As noted above, this report discusses statutes making regular appropriations for FY2000 and thereafter. See supra
note 26. All acts making regular appropriations for Fiscal Years 2000 through 2007 became law following conference
committee action. The one apparent exception, the District of Columbia Appropriations Act, 2001, likewise was the
product of conference committee action. In October 2000, a conference committee filed a conference report for
H.R. 4942, a measure whose report included appropriations for the District of Columbia in H.R. 5547. See H. R. REP.
NO. 106-1005 (2000) (Conf. Rep.). The chambers agreed to the conference report. 146 CONG. REC. S11,241 (daily ed.
Oct. 27, 2000); 146 CONG. REC. H11,296 (daily ed. Oct. 26, 2000). In November, the chambers passed by unanimous
consent H.R. 5633, also titled the District of Columbia Appropriations Act, 2001. See 146 CONG. REC. D1179 (daily ed.
Nov. 14, 2000); see also Pub. L. No. 106-522, 114 Stat. 2440 (2000). H.R. 5633 became law that same month. See 3
PUB. PAPERS OF PRESIDENT WILLIAM J. CLINTON 2578 (2000) (Statement on Signing the District of Columbia
Appropriations Act, 2001”). Though no conference report accompanied H.R. 5633, with one exception the bill as
passed was “identical to the conference report on the original D.C. appropriations bill for FY2001, H.R. 4942.” 146
CONG. REC. H11,915 (daily ed. Nov. 14, 2000) (statement of Rep. Istook). The sole difference between H.R. 5633 and
H.R. 4942 was a reference in the former bill to the joint explanatory statement that accompanied the latter. See Pub. L.
No. 106-522, § 167, 114 Stat. 2440, 2486 (2000); see also 146 CONG. REC. H11,915 (daily ed. Nov. 14, 2000)
(identifying this provision as the sole difference between conference report on H.R. 4942 and H.R. 5633); Consolidated
Appropriations Act, 2001, Pub. L. No. 106-554, § 406(a), 114 Stat. 2763, 2763A-189 (2000) (repealing “[t]he
provisions of H.R. 5547 (as enacted into law by H.R. 4942 of the 106th Congress)”).
361 More broadly, use of conference committees has “plummeted” in recent decades. See CRS Report R46597, The
“Regular Order”: A Perspective, by Walter J. Oleszek, at 40 (“[T]he number of conference committees plummeted
from 62 (13% of 465 public laws) in the 103rd Congress (1993-1995) to 5 (1.5% of 329 public laws) in the 114th
Congress (2015-2017) and to 6 (1% of 442 public laws) in the 115th Congress (2017-2019).”).
362 In re Kelly, 841 F.2d 908, 912 n.3 (9th Cir. 1988) (privileging the “official committee reports” over the Bankruptcy
Reform Act joint statement and further noting that such “stray comments” “cannot be attributed to the full body that
voted on the bill. The opposite inference is far more likely.”).
363 Appropriations acts that have employed the preceding matter provision usually attribute the explanatory statement to
the Chair of the House Appropriations Committee only, while National Defense Authorization Acts that have included
the provision give authorship credit to the chairs of both congressional defense committees.
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intent,364 just as courts or agencies would do if the act were the product of a conference
committee.365

364 See Soc. Sec. Admin.—Application of Reprogramming Notification Requirement, B-329964, 2020 WL 5993901, at
*3 (Comp. Gen. Oct. 8, 2020) (stating in the reprogramming context that an “explanatory statement accompanying the
appropriation [act] provides the best evidence of Congress’s expectations for the division of funds within an
appropriation, as it is a bicameral document that reflects the final, enacted funding level for the appropriation” and
preferring the statement to other forms of legislative history). One court has disagreed with this general approach. See
Texas Workforce Comm’n v. U.S. Dep’t of Educ., Rehab. Servs. Admin., 2018 WL 8619799, at *15 (W.D. Tex. Mar.
28, 2018) (refusing to find that an explanatory statement that was the subject of the preceding matter provision had
“legitimate explanatory value”). This conclusion may be the result of an error on the court’s part. In addition to
attaching the wrong label to the explanatory statement—referring to the document, instead, as a “joint explanatory
statement”—the court mistakenly stated the explanatory statement likened itself to a joint explanatory statement of a
conference committee. See id. (“That the Joint Explanatory Statement [sic] explained that it was to be treated as if it
was a legitimate explanatory statement [sic] does not make it one” (emphasis added)). In fact, this comparison between
the explanatory statement and a joint explanatory statement appeared in the statute. 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).
365 See supra notes 344–350 and accompanying text.
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Appendix. Glossary
Appropriation
A type of budget authority that allows an agency to incur obligations and
expend money from the Treasury for a specified purpose.
Appropriation Account
The basic unit of appropriation accounting, reflecting transactions (e.g.,
obligations incurred) involving the appropriation to which the account
relates.
Bona Fide Needs Rule
Legal doctrine that requires an obligation incurred using a fixed-period
appropriation to meet a need of the agency that exists during the
appropriation’s period of availability.
Budget Authority
Statutory authority to enter into financial obligations on behalf of the United
States that will result in the immediate or future outlays of federal funds.
Contract Authority
A type of budget authority that allows the making of an obligation. Contract
authority does not, itself, provide authority for an agency to liquidate, or
pay, the obligation.
Current Appropriation
An appropriation whose period of availability has not yet ended, and which
therefore remains available as a temporal matter to incur new obligations.
Duration of Budget Authority
A characteristic of budget authority that describes the time period in which
the authority is available for obligation.
Expired Appropriation
An appropriation whose period of availability has lapsed, and which
therefore is no longer available to incur new obligations. Expired
appropriations may still be available for other, limited purposes.
Explanatory Statement
A document written by one or more bill managers in connection with a bill
proposed for enactment through an exchange of amendments between the
houses.
Fixed-period Appropriation
An appropriation that is available for obligation only for a stated time period
(e.g., until September 30, 2021). An agency must use such appropriations in
compliance with the bona fide needs rule.
General Provision
Matter in a regular appropriations act that typically follows the act’s
appropriating titles. Often appearing as numbered sections, general
provisions (also called administrative provisions) might include further
budget authority, grant transfer authority, make rescissions, impose
limitations on the act’s appropriations, modify substantive law, or express
the sense of Congress on an issue.
Heading
Matter in a regular appropriations act that immediately precedes an
unnumbered paragraph and, among other things, serves to name the
appropriation or other budget authority to which it relates.
Joint Explanatory Statement
A document written by a conference committee that details the effect that
the amendments or propositions of a conference report will have on bill to
which the conference report relates.
Limitation on Obligation
A provision in a regular appropriations act that constrains the obligations
that may be entered using budget authority that existed prior to enactment
of the regular appropriations act.
Liquidating Appropriation
An appropriation made only to liquidate, or pay, an obligation entered into
under other budget authority, such as contract authority.
Nonseverable Service
A service that generally calls for the creation of an end product. While
performance of a nonseverable service may be divided into stages, the
agency derives value only when the end product is produced.
No-year Appropriation
An appropriation that is available for obligation indefinitely, until expended.
The bona fide needs rule does not apply to no-year appropriations.
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Obligation
A definite commitment that creates a legal liability of the government for the
payment of goods and services ordered or received, or a legal duty on the
part of the United States that could mature into a legal liability based only on
the actions of a third party.
Preceding Matter
As used in this report, the portions of a regular appropriations act that
appear after the enacting clause and before the first appropriating title of the
act.
Prefatory Matter
As used in this report, the initial matter of a regular appropriations act,
consisting of the act’s style and title and its enacting clause.
Principal Clause
In a regular appropriations act, typically the first clause of an unnumbered
paragraph. The principal clause usually grants an amount of budget authority,
subject to, among other things, one or more provisos that immediately
follow the principal clause.
Proviso
In a regular appropriations act, matter that appears in an unnumbered
paragraph following that paragraph’s principal clause. The act will introduce
each proviso with the phrase “provided, that” or “provided, further.”
Regular Appropriations
As used in this report, a modifier that describes an act (or bill) that provides
(or if enacted would provide) funding for the continued operation of federal
departments, agencies, and government activities for a particular fiscal year.
Regular appropriations bills are under the jurisdiction of the Appropriations
Committees.
Rescission
A provision of statute that cancels the availability of budget authority
included in a prior statute.
Severable Service
A service that meets a continuing or recurring need of an agency. The
service is capable of being divided into components, and the agency derives
value from the performance of each component.
Substantive Law
Provisions of law that establish the rights, duties, authorities, or obligations
of a federal officer or employee or of third parties.
Transfer
The act of shifting budget authority between appropriation accounts or
funds.
Transfer Authority
Authority provided by statute to debit one appropriation account or fund to
the credit of another.
Unnumbered Paragraph
The portions of a regular appropriations act, organized by title, that make
appropriations or provide other budget authority. Each unnumbered
paragraph is preceded by a heading and may consist of a principal clause and
one or more provisos.

Author Information

Sean M. Stiff

Legislative Attorney

Congressional Research Service

44

Regular Appropriations Acts: Selected Statutory Interpretation Issues

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Congressional Research Service
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Sep. 3, 2021

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Topic areas

National Defense

Appropriations

Report Type: CRS Report

Source: CRSReports.Congress.gov

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