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On September 30, 2008, President George W. Bush signed H.R. 2638, the Consolidated Security,
Disaster Assistance, and Continuing Appropriations Act, 2009, into law as P.L. 110-329 (122 Stat.
3574-3716). The act included three of the 12 regular appropriations acts for FY2009, continuing
appropriations for the remaining nine regular appropriations acts for that fiscal year (through
March 6, 2009), and supplemental appropriations for disaster relief and recovery.
With the completion of action on H.R. 2638, the 110th Congress brought its consideration of the
regular appropriations acts for FY2009 to a close. Early in the next session, however, the 111th
Congress will have to address the issue of funding the nine regular appropriations acts for the
remainder of the fiscal year.
According to the Congressional Budget Office, enactment of the Consolidated Appropriations Act
for FY2009 brought total discretionary budget authority for the fiscal year to $1,089.6 billion,
including $993.7 billion in non-emergency spending and $95.9 billion in emergency spending.
These amounts reflect $65.9 billion in emergency spending in a FY2009 “bridge fund” for war
activities, provided in P.L. 110-252, and $2.2 billion in non-emergency advance appropriations
for Bioshield, provided and adjusted in earlier laws.
On an annualized basis, continuing appropriations for FY2009 provided in the act amounted to
$420.0 billion, including $390.9 billion in non-emergency spending and $29.0 billion in
emergency spending. (Continuing appropriations were provided only through March 6, 2009, so
the annualized amounts may differ from the final amounts for the fiscal year depending on
subsequent funding actions.)
Total budget authority for the three regular appropriations acts included in the act amounted to
$669.6 billion, including $602.8 billion in non-emergency spending and $66.9 billion in
emergency spending (mostly from the “bridge fund” provided in P.L. 110-252).
Continued economic turmoil prompted Congress and the President to enact an economic stimulus
measure early in the 2008 session and other legislation aimed at stabilizing the economy as the
session progressed. Further economic stimulus in the form of FY2009 appropriations for such
matters as infrastructure projects, energy development, unemployment compensation, job
training, and Medicaid and food stamps assistance has been proposed. Although neither the
House nor the Senate considered such legislation during the lame-duck sessions held in late 2008,
congressional leaders have indicated their intent to address such legislation in January 2009,
during the first month of the 111th Congress.
The report will be updated as developments warrant.
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FY2009 Annual Appropriations Acts: Budgetary and Legislative Context.................................... 1
Congressional Action in 2007 ................................................................................................... 2
Regular Appropriations Acts for FY2007 ........................................................................... 2
Regular Appropriations Acts for FY2008 ........................................................................... 3
President’s FY2009 Budget Submission ................................................................................... 4
Congressional Budget Resolution for FY2009 ......................................................................... 5
Initial House and Senate Action on FY2009 Regular Appropriations Acts .............................. 6
Action on Economic Stimulus Legislation................................................................................ 8
Brief Summary of the FY2009 Consolidated Appropriations Act ................................................ 9
Opening Sections (Sections 1-4) ............................................................................................. 14
Continuing Appropriations for FY2009 (Division A) ............................................................. 14
Disaster Relief and Recovery Supplemental Appropriations for FY2008 (Division B) ......... 16
Department of Defense Appropriations Act for FY2009 (Division C) ................................... 17
Department of Homeland Security Appropriations Act for FY2009 (Division D) ................. 18
Military Construction and Veterans Affairs Appropriations Act for FY2009 (Division
E).......................................................................................................................................... 19
Legislative History of the FY2009 Consolidated Appropriations Act.......................................... 19
Action by the House................................................................................................................ 20
Action by the Senate ............................................................................................................... 21
Action by the President ........................................................................................................... 21
Implementation of the FY2009 Consolidated Appropriations Act ................................................ 22
Apportionment of Continuing Appropriations ........................................................................ 22
Guidance on Earmarking......................................................................................................... 23
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Table 1. Summary of Discretionary Budget Authority for FY2009 ...............................................11
Table 2. Non-Emergency Discretionary Spending in Regular Appropriations Acts for
FY2009 Compared to President’s Request and FY2008 Levels ................................................ 12
Table 3. Page References to Legislative Text and Explanatory Statement.................................... 13
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Author Contact Information .......................................................................................................... 24
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n September 30, 2008, President George W. Bush signed H.R. 2638, the Consolidated
Security, Disaster Assistance, and Continuing Appropriations Act, 2009, into law as P.L.
O 110-329 (122 Stat. 3574-3716). The act includes three of the 12 regular appropriations
acts for FY2009, continuing appropriations for the remaining nine regular appropriations acts for
that fiscal year (through March 6, 2009), and supplemental appropriations for disaster relief and
recovery.
With the completion of action on H.R. 2638, the 110th Congress brought its consideration of the
regular appropriations acts for FY2009 to a close. Early in the next session, however, the 111th
Congress will have to address the issue of funding the nine regular appropriations acts for the
remainder of the fiscal year. In addition, further economic stimulus in the form of FY2009
appropriations for such matters as infrastructure projects, energy development, unemployment
compensation, job training, and Medicaid and food stamps assistance has been proposed.
Although neither the House nor the Senate considered such legislation during the lame-duck
sessions held in late 2008, congressional leaders have indicated their intent to address such
legislation in January 2009, during the first month of the 111th Congress.
This report provides an overview of the Consolidated Appropriations Act for FY2009, including a
brief discussion of the budgetary and legislative context in which the act was developed and
considered, a short summary of its provisions, and a legislative history.
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Each year, Congress and the President enact discretionary spending in the form of regular
appropriations acts, as well as continuing and supplemental appropriations acts.1 Discretionary
spending, which accounts for more than one-third of total federal spending, is spending that is
under the control of the House and Senate Appropriations Committees. For the most part,
discretionary spending funds the routine operations of the federal government. It is distinguished
from direct spending, which is controlled by the legislative committees in substantive law and
funds such mandatory programs as Social Security and Medicare.2 Discretionary spending and
direct spending together make up total federal spending.
The number of regular appropriations acts had been fixed at 13 for several decades.3 A
realignment of the House and Senate Appropriations subcommittees at the beginning of the 109th
Congress reduced the number of regular appropriations acts considered each year to 11, and
1 For background on the appropriations process, see CRS Report 97-684,
The Congressional Appropriations Process:
An Introduction, by Sandy Streeter.
2 Funding for some mandatory spending programs, such as Medicaid and veterans’ compensation, is provided in annual
appropriations acts, but the spending levels for these programs are controlled by the substantive law that established
them. Even though the funding is provided in annual appropriations acts, it is not considered to be discretionary
spending.
3 For information on changes in the number of regular appropriations acts over the years, see CRS Report RL31572,
Appropriations Subcommittee Structure: History of Changes from 1920-2007, by James V. Saturno.
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further subcommittee realignment at the beginning of the 110th Congress increased the number to
12.4
Over the past several decades, recurring difficulties in enacting many of the regular
appropriations acts as freestanding measures have led to innovative changes in legislative
practices. Beginning in the late 1970s, continuing appropriations acts sometimes took the form of
omnibus legislation, in some instances incorporating the full text of multiple regular
appropriations acts for full-year funding instead of providing short-term funding by formula.5 In
more recent years, the House and Senate sometimes have combined multiple regular
appropriations acts into omnibus appropriations measures, termed “consolidated” appropriations
acts, to bring action on appropriations measures to a close at the end of a session.6
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In 2007, during the first session of the 110th Congress, the House and Senate had to deal with
action on regular appropriations acts both for FY2007 and FY2008. Several aspects of the process
that was employed for the two fiscal years, including the postponement of final action on
appropriations measures for one fiscal year until the next session, and the use of an unfinished
regular appropriations act as a vehicle for a consolidated appropriations act to wrap up action,
proved to be harbingers of the process Congress would employ in 2008.
In addition, President Bush and the Democratic leadership in the House and Senate differed
markedly over the appropriate level of total discretionary spending, especially for FY2008. The
President largely was successful in pressuring Congress, especially through veto threats, to hold
the total level of non-emergency discretionary spending for FY2008 to the level that he
recommended, which was roughly $20 billion less than what could have been accommodated
under the FY2008 budget resolution. The disagreement between the President and Democratic
congressional leaders over the appropriate levels of total discretionary continued into the 2008
session.
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Two of the 11 regular appropriations acts for FY2007 were enacted into law before a lame-duck
session of the 109th Congress was convened on November 9, 2006.7 The House and Senate were
not able to complete action on any of the remaining regular appropriations acts for FY2007
before the lame-duck session ended in early December and congressional leaders decided to defer
further action until the 110th Congress.
4 In the 109th Congress, the Senate Appropriations Committee reported a twelfth regular appropriations act, for the
District of Columbia, but in final legislative action it was incorporated into another bill.
5 For more information on practices relating to the use of continuing appropriations acts, see CRS Report RL32614,
Duration of Continuing Resolutions in Recent Years, by Robert Keith.
6 For more information on this topic, see CRS Report RL32473,
Omnibus Appropriations Acts: Overview of Recent
Practices, by Robert Keith.
7 The Defense Appropriations Act for FY2007, H.R. 5631, was signed into law by President George W. Bush on
September 29, as P.L. 109-289, and the Homeland Security Appropriations Act for FY2007, H.R. 5441, was signed
into law on October 4, as P.L. 109-295.
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In order to accommodate this approach, the third continuing appropriations act for FY2007, P.L.
109-383, provided funding through February 15, 2007. Early in the 110th Congress, the House
and Senate completed action on H.J.Res. 20, the Revised Continuing Appropriations Resolution
for FY2007, a measure providing funding through the end of the fiscal year. President Bush
signed the measure into law on February 15, 2007, as P.L. 110-5 (121 Stat. 8-60).8
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House and Senate action in 2007 on the regular appropriations acts for FY2008 followed a
difficult course as well. In December 2007, as the first session of the 110th Congress drew to a
close, action on only one of the 12 regular appropriations acts for FY2008 had been completed.
The Defense Appropriations Act for FY2008, which was signed into law by President Bush on
November 13, as P.L. 110-116, provided FY2008 funding for regular activities of the Defense
Department, but largely left funding for activities pertaining to military operations in Afghanistan
and Iraq for subsequent consideration in other legislation.
Another regular appropriations act, the Labor-Health and Human Services-Education
Appropriations Act for FY2008, H.R. 3043, had passed both chambers and been sent to President
Bush, but he vetoed the measure on November 13. On November 15, the House narrowly failed
to override the veto, by a vote of 277-141 (lacking the necessary two-thirds margin).9
With regard to the remaining 10 regular appropriations acts, all of them had been passed by the
House and five had been passed by the Senate (Commerce-Justice-Science; Homeland Security;
Military Construction-Veterans Affairs; State-Foreign Operations; and Transportation-HUD), but
by mid-October no further action occurred on them as separate, free-standing measures.
Following the failure on November 15 to override the President’s veto of the Labor-HHS-
Education Appropriations Act for FY2008, Democratic leaders in Congress signaled their intent
to consider an omnibus appropriations act in December that would “split the difference” with
regard to $22 billion in additional spending to which President Bush objected.10 On December 8,
Office of Management and Budget Director Jim Nussle issued a statement indicating that the
President would veto the omnibus appropriations act being developed, in part because “according
to press reports it would include 18 billion in additional domestic and emergency spending above
the President’s budget.”11 In response to the veto threat, the Democratic leaders abandoned their
“split the difference” plan and developed an omnibus appropriations act that adhered to the
President’s limit of $933 billion, with limited additional emergency funding.12
8 CRS Report RL33681,
FY2007 Regular Appropriations Acts: Procedures for End-of-Session Wrap-Up, by Robert
Keith.
9 In earlier action on the measure, an effort by the House to incorporate the Military Construction and Veterans Affairs
Appropriations Act for FY2008 (H.R. 2642) into H.R. 3043, as a separate division, was rejected by the Senate.
10 See, for example, BNA
Daily Report for Executives, “Reid Says Democrats to Bundle Bills, Offer to ‘Split
Difference’ With President,” by Nancy Ognanovich and Jonathan Nicholson, November 16, 2007, p. A-41.
11 Office of Management and Budget,
Statement By White House Office of Management and Budget Director Jim
Nussle (press release), December 8, 2007, available on the OMB website at http://www.whitehouse.gov/omb/pubpress/
2007/120807_spending.html.
12
CQ Weekly Report, “Democrats Relent on Spending,” by David Clark and Liriel Higa, December 17, 2007, p. 3718.
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The Consolidated Appropriations Act for FY2008 was the measure used to wrap up action in late
2007 on the remaining 11 regular appropriations acts, as well as emergency funding for military
operations in Iraq and Afghanistan.13 The measure, H.R. 2764, originated as the State-Foreign
Operations Appropriations Act for FY2008, which passed the House in June and the Senate in
September of 2007.
In deciding to use H.R. 2764 as the wrap-up vehicle for FY2008 appropriations, congressional
leaders also decided to avoid conference procedures that often are used to bring the House and
Senate into final agreement on a measure. Instead, congressional leaders decided to reach final
agreement by means of an exchange of amendments between the two chambers, which occurred
between December 17 and December 19.14 President Bush signed the bill into law on December
26, 2007 as P.L. 110-161 (121 Stat. 1844-2456).
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In his February 2008 budget submission for FY2009, President Bush requested total non-
emergency discretionary budget authority for the fiscal year of $987.6 billion. Counting an
advance appropriation of $2.2 billion for Bioshield, provided in prior legislation, the total request
for non-emergency discretionary budget authority for FY2009 amounted to $989.8 billion.
With respect to emergency discretionary budget authority, the President requested $75.8 billion,
including $70.0 billion for the “Global War on Terror” and $5.8 billion for “Gulf Coast/Hurricane
Recovery.”15 Combining both emergency and non-emergency spending, the President’s request
for discretionary budget authority for FY2009 totaled $1,065.6 billion,
The President’s FY2009 request was reestimated by the Congressional Budget Office (CBO) in
March at $991.6 billion in non-emergency discretionary budget authority.16 The CBO reestimates
did not change the additional amount of emergency discretionary funding ($75.8 billion)
requested by the President. In total, CBO estimated the President’s request for discretionary
budget authority at $1,067.4 billion.
According to CBO, the President’s request for non-emergency discretionary spending reflected
varying rates of growth or decline by category:
If funding for operations in Iraq and Afghanistan was excluded from the comparison,
discretionary budget authority under the President’s proposals would grow by 3.8 percent, or
$37 billion, from 2008 to 2009. Appropriations for defense would increase by 7.2 percent,
and funding for homeland security activities would rise by 7.8 percent. Other appropriations
would decline overall by 0.5 percent.17
13 CRS Report RL34298,
Consolidated Appropriations Act for FY2008: Brief Overview, by Robert Keith.
14 For additional information on this topic, see (1) CRS Report RL34611,
Whither the Role of Conference Committees:
An Analysis, by Walter J. Oleszek, and (2) CRS Report 98-696,
Resolving Legislative Differences in Congress:
Conference Committees and Amendments Between the Houses, by Elizabeth Rybicki.
15 Office of Management and Budget,
Budget of the United States Government, Fiscal Year 2009, February 2008,
Summary Table S-2, p. 140.
16 Congressional Budget Office,
An Analysis of the President’s Budgetary Proposals for Fiscal Year 2009, March
2008, Table 1-7, pp. 18-19.
17 CBO, op. cit., p. 16.
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In the Mid-Session Review of his FY2009 budget, issued on July 28, 2008, President Bush
indicated a “topline” request of $991.6 billion in discretionary spending for FY2009, reflecting
modest adjustments to his original request.18
Two days after submitting the Mid-Session Review, the President reiterated his request to
Congress that discretionary budget authority for FY2009 (excluding emergency spending) not
exceed $991.6 billion. A Statement of Administration Policy (SAP) on the Military Construction-
Veterans Affairs Appropriations Act for FY2009, which included a conditional veto threat against
other FY2009 appropriations acts, stated:
The Administration supports a discretionary limit of $991.6 billion in FY 2009, which is a
$50 billion or 5.3 percent increase over the FY 2008 enacted level. If Congress believes
additional spending is needed, that funding should be offset with reductions to lower-priority
programs without adding to the Government’s burden on taxpayers. Instead, the
Appropriations Committee’s spending allocations exceed the President’s discretionary
spending levels by nearly $25 billion.
...If Congress increases VA funding above the President’s request and does not offset this
increase with spending reductions in other bills, the President will veto any of the other bills
that exceed his request until Congress demonstrates a path to reach the President’s topline.19
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The House and Senate consider annual appropriations acts, and other budgetary legislation,
within constraints established in a yearly budget resolution required by the Congressional Budget
Act of 1974, as amended. Budget resolution policies are enforced in large part by points of order
that may be raised during House and Senate consideration of spending, revenue, and debt-limit
legislation.20
With regard to total discretionary spending for the upcoming fiscal year, the House and Senate
Appropriations Committees are given an allocation in the joint explanatory statement
accompanying the conference report on the budget resolution, as required by Section 302(a) of
the 1974 act. Pursuant to Section 302(b) of the act, the two committees then subdivide their
allocations among their subcommittees. In this way, the cost of each annual appropriations act
developed by a subcommittee (and reported by the full committee) can be compared to its Section
302(b) suballocation of discretionary spending to determine compliance with the budget
resolution.
On occasion, overall budget policies reflected in a budget resolution may be modified by
agreements or understandings reached between congressional leaders and the President.
Agreements or understandings that call for more discretionary spending than the budget
resolution recommends may be accommodated during legislative action mainly through the use of
waivers of points of order or emergency spending designations. In the case of agreements or
18 Office of Management and Budget,
Budget of the United States Government, Fiscal Year 2009. Mid-Session Review,
July 28, 2008, Summary Table S-2, p. 22.
19 See the SAP of July 30, 2008 on H.R. 6599, the Military Construction-Veterans Affairs Appropriations Act for
FY2009, available on the OMB website at http://www.whitehouse.gov/omb/legislative/sap/110-2/saphr6599-h.pdf.
20 For a general discussion of budget enforcement procedures, see CRS Report 98-721,
Introduction to the Federal
Budget Process, by Robert Keith.
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understandings that involve less discretionary spending than the budget resolution otherwise
would allow, the House and Senate simply may pass some or all of the appropriations acts at
reduced levels.
On March 13, 2008, the House passed H.Con.Res. 312, the FY2009 budget resolution, by a vote
of 212-207. The next day, the Senate passed S.Con.Res. 70, its version of the FY2009 budget
resolution, by a vote of 51-44.
A conference report on S.Con.Res. 70 was filed on May 20, 2008 (H.Rept. 110-659). The Senate
adopted the conference report on June 4, by a vote of 48-45, and the House adopted it on June 5,
by a vote of 214-210.
Like the previous year, the budget resolution for FY2009 recommended a total level of non-
emergency discretionary spending that was more than $20 billion above the President’s request.21
Media accounts typically cited non-emergency discretionary budget authority of $1,016 billion
for FY2009, reflecting adjustments for advance appropriations and other factors; the amount was
about $24.5 billion above President Bush’s request.22 Taking into account both emergency and
non-emergency spending, the FY2009 budget resolution recommended total discretionary
spending for FY2009 of $1,088.447 billion.23
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The timing of initial House and Senate action on the regular appropriations acts for FY2009 was
influenced largely by the consideration of two other measures.24 First, the two chambers devoted
considerable attention to H.R. 2642, the Supplemental Appropriations Act for FY2008. The bill
originated in 2007 as the Military Construction and Veterans Affairs Appropriations Act for
FY2008, passing the House in June and the Senate in September. Funding for the Military
Construction and Veterans Affairs Appropriations Act was included in the Consolidated
Appropriations Act for FY2008, and congressional leaders decided to use H.R. 2642 as the
vehicle for supplemental appropriations and other matters.
Various complex and controversial issues were addressed during consideration of H.R. 2642,
provoking veto threats from President Bush and complicating action on the measure. Through an
exchange-of-amendments procedure that occurred between the two chambers during May and
21 For a discussion of the difficulties involved in making precise comparisons between the President’s request and the
budget resolution with respect to discretionary spending, see the
Budget Bulletin, “Informed Budgeteer: Why Is It So
Confusing To Figure Out What The Budget Resolution Includes For Discretionary Spending?”, 110th Cong., 2nd sess.,
No. 3a and 3b, March 13, 2008
22 BNA
Daily Report for Executives, “House Approves 2009 Budget; Democrats Claim Fiscal Victory,” by Jonathan
Nicholson, June 6, 2008, p. A-32;
CQ Today, “House to Vote on Democrats’ Blueprint; Appropriations Strategy Still
Uncertain,” by David Clarke, May 20, 2008; and
CQ Weekly Report, “Congress Wraps Up Budget Resolution,” by
David Clarke, June 9, 2008, p. 1546.
23 See the conference report to accompany S.Con.Res. 70, the FY2009 budget resolution, H.Rept. 110-659 (May 20,
2008), at p. 54.
24 Detailed information on the status of annual appropriations acts for FY2009 and earlier years is provided in the
Appropriations Status Tables available on the CRS website at http://www.crs.gov/products/appropriations/
appover.shtml.
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June of 2008, the bill was expanded to include not only $162 billion in emergency funding for
military operations in Iraq and Afghanistan for FY2008 (and a “bridge fund” for FY2009), but
also more than $20 billion in non-military emergency funding for FY2008, $63 billion for a
veterans’ education benefit over a multi-year period, and $8 billion for a 13-week extension of
unemployment benefits.25 President Bush signed the measure into law on June 30, 2008, as P.L.
110-252 (122 Stat. 2323-2416).
The second measure affecting the timing of action on the regular appropriations acts was the
FY2009 budget resolution, S.Con.Res. 70. The budget resolution set in place the blueprint for
House and Senate action on budgetary legislation affecting FY2009 and later years, and
determined the total allocation of discretionary spending to the Appropriations Committees.
House and Senate action on S.Con.Res. 70 was completed on June 5, 2008, marking the first time
that a budget resolution was agreed to in an election year since 2000.
Shortly after final agreement was reached on the FY2009 budget resolution, the House and
Senate Appropriations Committees approved the Section 302(b) suballocations (on June 18 and
June 19, respectively) and began the process of marking up individual regular appropriations acts
with the intent of reporting all 12 of them. Continued disagreement between Democratic
congressional leaders and President Bush over discretionary spending levels, and the impending
presidential election toward the end of the session, however, made the issue of House and Senate
floor action on the appropriations acts unclear:
Democrats don’t plan to finish work on the spending bills before the election unless
President Bush agrees to negotiate over spending. The White House earlier this year said
Bush would veto spending bills that exceed his request—mirroring the stance that created
last year’s appropriations standoff. Democrats, who eventually capitulated to Bush’s demand
at the end of the year, don’t want to go through the same exercise again and are hoping they
can complete the process next year under a Democratic president. Bush has proposed a total
of $991.6 billion in discretionary spending, with an effective freeze on domestic programs,
while the final Democratic budget adopted last week would allow an additional $21.1 billion
in fiscal 2009 discretionary spending (including cap adjustments), plus $3.5 billion more
than Bush proposed in advance appropriations. The Democrats’ additional funding would be
used for domestic programs.
... Both House and Senate Appropriations intend to mark up and report each of the 12 fiscal
2009 spending bills, however, in order to set the stage for later completion of the process.
Those bills will reflect funding priorities that Democrats can point to before the November
elections. And they are expected to become the base for final appropriations action early next
year, when Democrats believe they will have larger majorities in both chambers. But it’s
uncertain how many bills will be considered by the full chambers.26
The House Appropriations Committee approved five of the regular appropriations acts on June 24
and June 25. During a committee markup of the Labor-HHS-Education Appropriations Act for
FY2009 on June 26, Republican Members of the committee attempted to offer the text of the
pending Interior Appropriations Act for FY2009 and to pursue the offering of amendments
pertaining to offshore drilling and other energy initiatives. The committee markup was suspended
25 BNA
Daily Report for Executives, “Supplemental Heads to White House After Senate Approval; Bush to Sign Bill,”
by Jonathan Nicholson, June 30, 2008, p. A-21.
26
CQ Budget Tracker News, “Budget Tracker Briefing: Unusual Appropriations Season Opens,” by Chuck Conlon and
Kerry Young, June 8, 2008.
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and no further markups of FY2009 regular appropriations occurred in the committee during the
session.27 The committee subsequently issued written reports for the two measures approved on
June 24, the Military Construction and Veterans Affairs Appropriations Act for FY2009, H.R.
6599 (H.Rept. 110-775, July 24, 2008), and the Homeland Security Appropriations Act for
FY2009, H.R. 6947 (H.Rept. 110-862, September 18, 2008).
The Senate Appropriations Committee marked up and reported nine of the 12 regular
appropriations acts, concluding its action on them in late July.
The House began consideration of H.R. 6599, the Military Construction and Veterans Affairs
Appropriations Act for FY2009, on July 31 and passed it, by a vote of 409-4, on August 1. No
further action was taken by the House or the Senate on individual regular appropriations acts for
FY2009, as freestanding measures, during the remainder of the session.
As discussed in a separate section below, three of the FY2009 regular appropriations acts, along
with continuing appropriations for FY2009 and emergency supplemental appropriations for
FY2008, were merged together into the Consolidated Appropriations Act for FY2009.
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Continued economic turmoil prompted Congress and the President to enact an economic stimulus
measure early in the 2008 session and other legislation aimed at stabilizing the economy as the
session progressed.28 Prior to the adjournment for the November 4 election, the House passed a
second economic stimulus proposal and the Senate attempted unsuccessfully to consider a
comparable measure.
The first stimulus measure, the Economic Stimulus Act of 2008, was signed into law on February
13, 2008, as P.L. 110-185. The act included only changes in revenues, including recovery rebates
and incentives for business investment that amounted to combined revenue reduction of $168
billion in FY2008 and FY2009.29
The second stimulus measure, the Job Creation and Unemployment Relief Act of 2008 (H.R.
7110), passed the House on September 26, 2008 by a vote of 264-158.30 On the same day, the
Senate rejected a motion to proceed to the consideration of a similar measure, the Economic
Recovery Act, 2008 (S. 3604), by a vote of 52-42 (under a unanimous consent agreement, the
motion required 60 votes to be successful). The Bush Administration issued Statements of
Administration Policy (SAPs) on the measures on September 26, opposing them on various
grounds and threatening a veto in each case.
27 BNA
Daily Report for Executives, “Obey Mulls No More Markups, Says GOP ‘Had Their Shot’ on Appropriations
Process,” by Jonathan Nicholson, June 27, 2008, p. A-35.
28 Economic stimulus proposals considered in 2008 are addressed in CRS Report RL34349,
Economic Slowdown:
Issues and Policies, by Jane G. Gravelle et al.
29 Joint Committee on Taxation,
Estimated Budget Effects of the “Economic Stimulus Act of 2008,” as Passed by the
House of Representatives and the Senate on February 7, 2008, JCX-17-08, February 8, 2008.
30 BNA
Daily Report for Executives, “House Passes $60.7 Billion Stimulus But Prospects for Measure Uncertain,” by
Jonathan Nicholson and Nancy Ognanovich, September 29, 2008, p. A-28.
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While the first stimulus measure included only changes in revenue policy, the House and Senate
versions of the second stimulus measure originated in the Appropriations Committees and
entailed appropriations of roughly $60 billion for such matters as infrastructure projects, energy
development, unemployment compensation, job training, and Medicaid and food stamps
assistance.
Senate Majority Leader Harry Reid indicated that the Senate would meet in a lame-duck session
on November 17 to continue consideration of a second stimulus proposal, and it was considered
likely that the House would convene as well.31 In the interim, the Senate continued to convene
periodically in pro forma session. Media reports indicated that the scope of any economic
stimulus measure given further consideration in a lame-duck session could be expanded well
beyond the roughly $60 billion cost of the measures developed in late September.32
The Senate met on November 17 and began the consideration of several legislative proposals,
including an extension of unemployment compensation benefits that had previously been passed
by the House (P.L. 110-449; November 21, 2008).33 The House met on November 19, and both
chambers concluded the first lame-duck session on November 20. A second lame-duck session
occurred in December, with the Senate meeting from December 8 through December 11, and the
House meeting on December 9 and December 10.
An expanded stimulus proposal, the Economic Recovery Act of 2008 (S. 3689), was introduced
by Majority Leader Reid and Senator Robert C. Byrd and placed on the Senate calendar, but no
further action was taken on the measure. According to the sponsors, the measure provided $100.3
billion in infrastructure spending and a wide range of other stimulus and recovery activities.
Congressional leaders have indicated that they will again turn to the issue of economic stimulus
in January 2009, during the first month of the 111th Congress. The cost of the stimulus legislation
to be considered at that time is expected to rise considerably, perhaps to around $500 billion or
more.34
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The Consolidated Security, Disaster Assistance, and Continuing Appropriations Act for FY2009
is a relatively lengthy and complex annual appropriations act consisting of five separate
components, referred to as divisions. Division A provides continuing appropriations for FY2009
for activities that were funded in the prior fiscal year by nine different regular appropriations acts.
31 For background information on appropriations action in lame-duck sessions, see CRS Report RL34597,
Annual
Appropriations Acts: Consideration During Lame-Duck Sessions, by Robert Keith.
32
CQ Today Online News, “Pelosi Calls for Stimulus, Hints at Lame Duck,” by Liriel Higa, October 8, 2008, and
“House Democrats Meet to Plan for Second Stimulus,” by Molly K. Hooper, October 9, 2008; and BNA
Daily Report
for Executives, “House Democrats Reconvene Economists To Discuss Need for Economic Stimulus,” by Jonathan
Nicholson, October 10, 2008, p. A-22.
33
CQ Today, “Reid Calls For Economic Stimulus Package After Election,” by David Clarke, October 15, 2008.
34
CongressDaily, “Pelosi: House Stimulus Measure May Reach $600 Billion,” December 12, 2008; and BNA’s
Daily
Report for Executives, “House Panel Urged to Consider Stimulus With $1 Trillion or More for U.S. Economy,” by
Nancy Ognanovich, December 12, 2008.
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Division B provides supplemental appropriations for FY2008 to various departments and
agencies for disaster relief and recovery activities. The remaining divisions each set forth one of
remaining three regular appropriations for FY2009: Division C, the Department of Defense
Appropriations Act; Division D, the Homeland Security Appropriations Act; and Division E, the
Military Construction and Veterans Affairs Appropriations Act.
According to the Congressional Budget Office, enactment of the Consolidated Appropriations Act
for FY2009 brings total discretionary budget authority for the fiscal year to $1,089.6 billion,
including $993.7 billion in non-emergency spending and $95.9 billion in emergency spending
(see
Table 1). These amounts reflect $65.9 billion in emergency spending in a FY2009 “bridge
fund” for war activities, provided in P.L. 110-252, and $2.2 billion in non-emergency advance
appropriations for Bioshield, provided and adjusted in earlier laws.
On an annualized basis, continuing appropriations for FY2009 provided in the act amount to
$420.0 billion, including $390.9 billion in non-emergency spending and $29.0 billion in
emergency spending. (Continuing appropriations are provided only through March 6, 2009, so the
annualized amounts may differ from the final amounts for the fiscal year, depending on
subsequent funding actions.)
Total budget authority for the three regular appropriations acts included in the act amounts to
$669.6 billion, including $602.8 billion in non-emergency spending and $66.9 billion in
emergency spending (mostly from the “bridge fund” provided in P.L. 110-252).
As
Table 2 shows, the total amount of non-emergency discretionary budget authority for FY2009
provided in the three regular appropriations acts included in the act, $600.6 billion (excluding the
advance appropriation for Bioshield), exceeds the President’s request by $2.0 billion. Defense
appropriations are $4.0 billion below the level the President requested, while appropriations for
Homeland Security and for Military Construction and Veterans Affairs exceed his request by $2.4
billion and $3.6 billion, respectively.
Page references to the legislative text and explanatory statement for each section and division of
the act, as found in the slip law and made available in the
Congressional Record of September 24,
2008, are provided in
Table 3. In addition, the House Appropriations Committee issued a print
setting forth the legislative text and explanatory material.35
35 U.S. House of Representatives, Committee on Appropriations,
Consolidated Security, Disaster Assistance, and
Continuing Appropriations Act, 2009, committee print, 110th Cong., 2d sess., October 2008, available on the
Government Printing Office Website at http://www.gpoaccess.gov/congress/house/appropriations/09conappro.html.
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Each of the opening sections and the five divisions of the act are summarized briefly below.
Table 1. Summary of Discretionary Budget Authority for FY2009
(amounts in $ billions)
House/Senate
Appropriations Subcommittees
Non-Emergency Emergency Total
Continuing Appropriations
1.
Agriculture
20.385
0.405
20.790
2.
Commerce/Justice/Science
53.591
0.083
53.674
3. Energy and Water
31.374
13.521
44.895
4. Financial Services
20.554
0.000
20.554
5. Interior and Environment
26.571
0.000
26.571
6.
Labor/HHS/Education
150.248
11.350
161.598
7. Legislative Branch
3.969
0.000
3.969
8. State/Foreign Operations
33.326
3.679
37.005
9.
Transportation/HUD
50.923
0.000
50.923
Subtotal, Continuing Appropriations
390.941
29.038
419.979
Regular Appropriations
1.
Defense
487.737
65.921
553.658
2. Homeland Security
42.164
0.000
42.164
3. Military Construction/Veterans Affairs
72.863
0.944
73.807
Subtotal, Regular Appropriations
602.764
66.865
669.629
Total 993.705
95.903
1,089.608
Source: Prepared using information provided by the Congressional Budget Office.
Note: Details may not add to total due to rounding. Continuing appropriations, available through March 6, 2009,
are shown as annualized amounts (i.e., through September 30, 2009). Defense appropriations include a “bridge
fund” of $65.9 billion in emergency funding in P.L. 110-252. Homeland Security appropriations include an advance
appropriation of $2.2 billion for Bioshield (under Biodefense Countermeasures), as provided in P.L. 108-90 (117
Stat. 1148) and adjusted by other laws.
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Table 2. Non-Emergency Discretionary Spending in Regular Appropriations Acts for
FY2009 Compared to President’s Request and FY2008 Levels
(budget authority in $ billions)
FY2009
Regular
FY2008
FY2009
FY2009
Enacted Level
Appropriations Act
Level
President’s
Enacted
Compared to
Request
Level
President’s
Request
Defense
459.3 491.7
487.7
-4.0
(Division C)
Homeland Security
37.7 37.6
40.0
+2.4
(Division D)
Military Construction/
63.9 69.3
72.9
+3.6
Veterans Affairs
(Division E)
Total 560.9
598.6
600.6
+2.0
Source: Prepared using information provided by the House Appropriations Committee.
Notes: Amounts exclude emergency funding. Homeland Security appropriations exclude advance appropriation
for Bioshield ($2.18 billion for FY2009).
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Table 3. Page References to Legislative Text and Explanatory Statement Congressional Record
(September 24, 2008)
Public Law 110-329
Section/Division Content (122 Stat. 3574-3716 )
Legislative
Explanatory
Text
Statement
Sec. 1
Short Title
3574 H9248 —
Sec. 2
Table of Contents
3574
H9248
—
Sec. 3
References
3574 H9248 —
Sec. 4
Explanatory Statement
3574
H9248
H9427
Division A
Continuing Appropriations Resolution, 2009
3574-3584
H9248-H9251
H9427
Division B
Disaster Relief and Recovery Supplemental Appropriations Act, 2008
3585-3603
H9251-H9256
H9427-H9433
Division C
Department of Defense Appropriations Act, 2009
3603-3652
H9256-H9270
H9434-H9792
Division D
Department of Homeland Security Appropriations Act, 2009
3652-3691
H9270-H9282
H9792-H9825
Division E
Military Construction and Veterans Affairs and Related Agencies
3691-3716 H9282-H9289
H9826-H9870
Appropriations Act, 2009
Sources: P.L. 110-329 (in slip law form and Congressional Record (daily ed.), vol. 154, no. 152, Book I and Book II, September 24, 2008.
Note: In addition to the sources cited above, the House Appropriations Committee issued a print setting forth both the legislative text and explanatory material,
Consolidated Security, Disaster Assistance, and Continuing Appropriations Act, 2009, 110th Cong., 2d sess., October 2008, available on the Government Printing Office Website at
http://www.gpoaccess.gov/congress/house/appropriations/09conappro.html.
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The act begins with four sections, with the first three setting forth a short title (Section 1), a table
of contents (Section 2), and a statement regarding references (Section 3), read as follows:
[e]xcept as expressly provided otherwise, any reference to ‘this Act’ or ‘this joint resolution’
contained in any division of this Act shall be treated as referring only to the provisions of
that division.
Section 4 indicates that explanatory material accompanying the legislation should be regarded as
if it were a joint explanatory statement that would have accompanied a conference report on the
measure, had conference procedures been used:
The explanatory statement regarding this legislation, printed in the House of Representatives
section of the Congressional Record on or about September 24, 2008 by the Chairman of the
Committee on Appropriations of the House, shall have the same effect with respect to the
allocation of funds and implementation of this Act as if it were a joint explanatory statement
of a committee of conference.
Representative David Obey, the chairman of the House Appropriations Committee, inserted
explanatory materials into the
Congressional Record of September 24, 2008, which included
detailed tables on the discretionary spending provided in the measure.36
The authority for the submission of the explanatory material was provided by Section 3 of H.Res.
1488, a special rule providing for the consideration of a motion by the chairman of the
Appropriations Committee that the House concur in the Senate amendment to H.R. 2638 with a
substitute amendment. Section 3 stated:
The chairman of the Committee on Appropriations shall insert in the daily issue of the
Congressional Record dated September 24, 2008, such material as he may deem explanatory
of the motion.
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Division A of the act, referred to as the “Continuing Appropriations Resolution, 2009,” provides
continuing appropriations for roughly the first half of FY2009 for activities that were funded in
nine of the 12 regular appropriations acts for FY2008.37 Continuing appropriations in total
amount to about $420 billion (on an annualized basis), including $391 billion in non-emergency
funding and $29 billion in emergency funding.
36 See the
Congressional Record (daily ed.), vol. 154, no. 152, September 24, 2008. A summary table of defense
appropriations is provided in Book I at pp. H9291-H9294. Additional explanatory material on the entire act is provided
in Book II at pp. H9427-H9870.
37 A brief summary of Division A is available on the website of the House Appropriations Committee, at
http://appropriations.house.gov/pdf/CRSummary09-08.pdf. Also, the Senate Appropriations Committee provides a
brief summary on its website, available at http://appropriations.senate.gov/Press/
2008_09_24_Continuing_Resolution_Highlights.pdf?CFID=65542758&CFTOKEN=49741756.
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Section 101 appropriates “[s]uch amounts as may be necessary, at a rate for operations as
provided in the applicable appropriations Acts for FY2008” and under the authority and
conditions provided in those acts. The nine applicable acts, referenced by the division assigned to
them in the Consolidated Appropriations Act for FY2008 (P.L. 110-161), include the:
• Agriculture, Rural Development, Food and Drug Administration, and Related
Agencies Appropriations Act;
• Commerce, Justice, Science, and Related Agencies Appropriations Act;
• Energy and Water Development and Related Agencies Appropriations Act;
• Financial Services and General Government Appropriations Act;
• Department of the Interior, Environment, and Related Agencies Appropriations
Act;
• Departments of Labor, Health and Human Services, and Education, and Related
Agencies Appropriations Act;
• Legislative Branch Appropriations Act;
• Department of State, Foreign Operations, and Related Programs Appropriations
Act; and
• Transportation, Housing and Urban Development, and Related Agencies
Appropriations Act.
Section 102 excludes from the calculation of the rate for operations under each appropriations act
any emergency funding that was provided previously, with the following five exceptions: (1)
$150 million for salaries and expenses of the Food and Drug Administration (provided in P.L.
110-252); (2) $143.539 million for salaries and expenses of the Federal Bureau of Investigation
(provided in P.L. 110-161); (3) $110 million for State Unemployment Insurance and Employment
Service Operations of the Employment and Training Administration (provided in P.L. 110-252);
(4) $272 million and $206.632 million for Diplomatic and Consular Programs of the Department
of State (provided in two provisions in P.L. 110-252); and (5) $76.7 million for Embassy Security,
Construction, and Maintenance of the Department of State (provided in P.L. 110-252).
Sections 103 through 110 set forth routine elements of continuing appropriations acts, including a
bar against initiating or resuming activities that were not funded in FY2008 (Section 104); a
restriction on funding activities with high initial rates of operation (Section 109); and a
requirement that only the “most limited” funding actions occur during the course of continuing
activities (Section 110).
Section 106 establishes the duration of the continuing appropriations. Under the section,
continuing appropriations and authorities made available pursuant to the act remain in effect:
... until whichever of the following first occurs: (1) the enactment into law of an
appropriation for any project or activity provided for in this joint resolution; (2) the
enactment into law of the applicable appropriations Act for fiscal year 2009 without any
provision for such project or activity; or (3) March 6, 2009.
The remainder of Division A, encompassing Sections 111 through 174, includes “anomalies” and
other items, such as provisions that provide additional appropriations, extend expiring authorities,
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or otherwise modify the application of the continuing appropriations rules and procedures to
individual activities or categories of activities. For example, these sections include:
• a rate for operations of $6.658 billion for the Special Supplemental Nutrition
Program for Women, Infants, and Children (WIC) account, an amount $1 billion
above the FY2008 level (Section 114);
• a rate for operations of $2.906 billion for the Periodic Censuses and Programs
account of the Bureau of the Census, to accelerate activities in connection with
the 2010 census (Section 120);
• an appropriation of $7.510 billion for the Advanced Technology Vehicles
Manufacturing Loan Program account of the Department of Energy, to support
$25 billion in loans to American automakers (Section 129);
• an appropriation of an additional $250 million to the Energy Efficiency and
Renewable Energy account of the Department of Energy for weatherization
assistance for low-income homes (Section 130);
• a pay adjustment of 3.9 percent in 2009 for federal civilian employees, which
matches the increase provided to military personnel in other legislation (Section
142);
• the termination of a moratorium on offshore oil drilling (Section 152);
• an appropriation of $5.1 billion ($2.5 billion above the FY2008 level) for the
Low-Income Home Energy Assistance Program (LIHEAP) of the Department of
Health and Human Services (Section 155); and
• a rate for operations of $18.627 billion for the Student Financial Assistance
account of the Department of Education, including $16.761 billion in
discretionary funding for Pell Grants, an amount $2.5 billion above the FY2008
level (Section 158).
The explanatory material submitted by Chairman David Obey included a statement indicating that
Division A contained no earmarks:
Neither the legislative text of division A nor the accompanying explanatory statement
contains any congressional earmarks, congressionally directed spending items, limited tax
benefits or limited tariff benefits (as defined in clause 9 of rule XXI of the Rules of the
House of Representatives and rule XLIV of the Standing Rules of the Senate, respectively).38
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Division B, referred to as the “Disaster Relief and Recovery Supplemental Appropriations Act,
2008,” provides $22.859 billion in supplemental appropriations for FY2008, mainly in response
to extensive flooding in the Midwest, Hurricanes Gustav, Hanna, and Ike, and wildfires. The
division consists of three titles: Title I (Relief and Recovery from Natural Disasters); Title II
(Other Supplemental Appropriations); and Title III (General Provisions).
38
Congressional Record (daily ed.), September 24, 2008, p. H9427.
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Section 30002 designates all of the appropriations provided in the division as emergency funding.
Consequently, the amounts do not count for purposes of congressional budget enforcement
provisions.
Section 30003 indicates that all of the supplemental appropriations are for FY2008, but would
have designated them as supplemental appropriations for FY2009 had the act become law on or
after October 1. Although the supplemental appropriations were enacted into law on the last day
of the fiscal year (September 30), each appropriation includes an extension of availability into
FY2009 or later, or “until expended.”
According to the House Appropriations Committee, supplemental appropriations contained in
Division B include:
• Disaster Relief Fund (FEMA): $7.9 billion;
• Community Development Block Grants: $6.5 billion;
• Social Services Block Grants: $600 million;
• Wildfires: $910 million;
• Emergency Highway Relief (FHA): $850 million;
• New Orleans Levees: $1.5 billion;
• Army Corps of Engineers: $1.3 billion;
• Small Business Administration: $799 million;
• Economic Development Assistance Programs: $400 million;
• International Disasters: $465 million (including $365 million for the Republic of
Georgia, and $100 million for Haiti to recover from Ike and other hurricanes,
through the Economic Support Fund); and
• International Food Aid: $100 million.39
Earmarks included in the text of Division B or the accompanying explanatory material are
identified in the
Congressional Record.40
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Division C, referred to as the “Department of Defense Appropriations Act, 2009,” provides
$487.7 billion in regular appropriations for FY2009.41
39 A brief summary of Division B is available on the website of the House Appropriations Committee, at
http://appropriations.house.gov/pdf/DisasterSummary09-08.pdf. A detailed funding table is included in the explanatory
material submitted by Chairman David Obey; see the
Congressional Record (daily ed.), September 24, 2008, pp.
H9428-H9431.
40
Congressional Record (daily ed.), September 24, 2008, p. H9432-H9433.
41 A brief summary of Division C is available on the website of the House Appropriations Committee, at
http://appropriations.house.gov/pdf/DODFY09CONFSummary09-08.pdf. Also, the Senate Appropriations Committee
provides a brief summary on its website, available athttp://appropriations.senate.gov/Press/
2008_09_24_Summary_of_FY_2009_Defense_Appropriations.pdf?CFID=65543142&CFTOKEN=31929965.
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The House Defense Appropriations Subcommittee marked up the Defense Appropriations Act for
FY2009 on July 30, 2008, and the Senate Defense Appropriations Subcommittee did the same on
September 10, but neither of the two full committees considered the measure. The Defense
Appropriations Act for FY2009 was not considered by the House or Senate as a freestanding
measure. Both chambers considered at length, however, the Duncan Hunter National Defense
Authorization Act for FY2009, H.R. 5658 and S. 3001, the latter becoming P.L. 110-417 on
October 14, 2008.
CRS Report RL34473,
Defense: FY2009 Authorization and Appropriations, by Pat Towell,
Stephen Daggett, and Amy Belasco, provides extensive information on the content of Division C.
In addition, Chairman David Obey inserted extensive explanatory materials, including detailed
funding tables, in the
Congressional Record.42
Earmarks included in the text of Division C or the accompanying explanatory material are
identified in the
Congressional Record.43
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Division D, referred to as the “Department of Homeland Security Appropriations Act, 2009,”
provides $40.0 billion in regular appropriations for FY2009 (excluding an advance appropriation
of $2.18 billion for Bioshield).44
The Senate Appropriations Committee approved the Homeland Security Appropriations Act for
FY2009, S. 3181, on June 19, 2008 (S.Rept. 110-396, June 23, 2008). The House Appropriations
Committee approved its version of the measure, H.R. 6947, on June 24 (H.Rept. 110-862,
September 18, 2008). The Homeland Security Appropriations Act for FY2009 was not considered
by the House or Senate as a freestanding measure.
CRS Report RL34482,
Homeland Security Department: FY2009 Appropriations, by Jennifer E.
Lake et al., provides extensive information on the content of Division D. In addition, Chairman
David Obey inserted extensive explanatory materials, including detailed funding tables, in the
Congressional Record.45
Earmarks included in the text of Division D or the accompanying explanatory material are
identified in the
Congressional Record.46
42
Congressional Record (daily ed.), September 24, 2008, pp. H9434-H9740.
43
Congressional Record (daily ed.), September 24, 2008, p. H9740-H9792.
44 A brief summary of Division D is available on the website of the House Appropriations Committee, at
http://appropriations.house.gov/pdf/DHSFY09CONFSummary09-22-08.pdf. Also, the Senate Appropriations
Committee provides a brief summary on its website, available at http://appropriations.senate.gov/Press/
2008_09_24_Summary_of_FY_2009_Homeland_Security_Appropriations.pdf?CFID=65544578&CFTOKEN=969225
01.
45
Congressional Record (daily ed.), September 24, 2008, pp. H9792-H9825.
46
Congressional Record (daily ed.), September 24, 2008, p. H9809-H9812.
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Division E, referred to as the “Military Construction and Veterans Affairs and Related Agencies
Appropriations Act, 2009,” provides $73.8 billion in regular appropriations for FY2009,
including $72.9 billion in non-emergency funding and $0.9 billion in emergency funding.47
The Senate Appropriations Committee approved the Homeland Security Appropriations Act for
FY2009, S. 3181, on June 19, 2008 (S.Rept. 110-396, June 23, 2008). The House Appropriations
Committee approved its version of the measure, H.R. 6947, on June 24 (H.Rept. 110-862,
September 18, 2008). The Homeland Security Appropriations Act for FY2009 was not considered
by the House or Senate as a freestanding measure.
CRS Report RL34558,
Military Construction, Veterans Affairs, and Related Agencies: FY2009
Appropriations, by Daniel H. Else, Christine Scott, and Sidath Viranga Panangala, and CRS
Report RL34598,
Veterans Medical Care: FY2009 Appropriations, by Sidath Viranga Panangala,
provide extensive information on the content of Division E. In addition, Chairman David Obey
inserted extensive explanatory materials, including detailed funding tables, in the
Congressional
Record.48
Earmarks included in the text of Division E or the accompanying explanatory material are
identified in the
Congressional Record.49
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In deciding to merge regular and continuing appropriations for FY2009, along with supplemental
appropriations for FY2008, into a single, consolidated appropriations act, the House and Senate
Appropriations Committees chose an unfinished appropriations act to serve as the vehicle. Unlike
in the 2007, when an unfinished regular appropriations act for FY2008 became the vehicle for the
Consolidated Appropriations Act for FY2008, in 2008 an unfinished regular appropriations act for
the prior fiscal year became the vehicle for the FY2009 omnibus measure.
The Consolidated Security, Disaster Assistance, and Continuing Appropriations Act, 2009, H.R.
2638, originated as the Homeland Security Appropriations Act for FY2008 (H.Rept. 110-197,
June 12, 2007, and S.Rept. 110-181, June 8, 2007). It passed the House on June 15, 2007 by a
vote of 268-150, and passed the Senate with an amendment on July 26, 2007, by a vote of 89-4.
On the same day that it passed H.R. 2638, the Senate requested a conference with the House and
appointed conferees. The House did not respond to the Senate’s request for a conference, and no
further action was taken on H.R. 2638 for more than a year.
47 A brief summary of Division E is available on the website of the House Appropriations Committee, at
http://appropriations.house.gov/pdf/MCFY09CONFSummary09-22-08.pdf. Also, the Senate Appropriations
Committee provides a brief summary on its website, available at http://appropriations.senate.gov/Press/
2008_09_24_Summary_of_FY_2009_Milcon_VA_Appropriations.pdf?CFID=65544706&CFTOKEN=40487362.
48
Congressional Record (daily ed.), September 24, 2008, pp. H9826-H9870.
49
Congressional Record (daily ed.), September 24, 2008, p. H9831-H9846.
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In deciding to use H.R. 2638 as the vehicle for omnibus appropriations for FY2009,
congressional leaders also decided to avoid conference procedures that often are used to bring the
House and Senate into final agreement on a measure. Instead, congressional leaders decided to
reach final agreement by means of an exchange of amendments between the two chambers, as
had been done the year before with respect to the Consolidated Appropriations Act for FY2008.
The resolution of differences between the chambers focused on H.R. 2638, as passed by the
House, and the single Senate amendment to the bill, in the form of a complete substitute thereto,
that had been acted on a year earlier.
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Under the first step, the House on September 24, 2008 considered and agreed to an amendment to
the Senate amendment under the terms of H.Res. 1488, a special rule reported by the House Rules
Committee.50 The House amendment reflected the compromise language fashioned by the House
and Senate Appropriations Committees in concert with the leadership.
The House Rules Committee reported H.Res. 1488 (H.Rept. 110-875) on September 24 and the
House considered it the same day.51 At the beginning of consideration of the resolution,
Representative Jeff Flake raised a point of order under Section 426(a) of the Congressional
Budget Act of 1974.52 The section bars the House from considering a special rule that waives a
point of order under Section 425 of the 1974 act, which pertains to legislation containing
unfunded mandates. With one specified exception, H.Res. 1488 waived all rules of the House,
which conceivably could have included Section 425 of the 1974 act. Representative Flake
indicated that he raised the point of order in order to draw attention to the inclusion of earmarks
in H.R. 2638 and the relatively brief time available to review them.53
As provided for under Section 426 of the 1974 act, the point of order was disposed of when the
House voted on whether to consider H.Res. 1488; the House agreed to consider the resolution, by
a vote of 242-168, thereby rejecting the point of order. At the conclusion of debate, the House
ordered the previous question on H.Res. 1488 by a vote of 231-198, and agreed to the resolution,
by a vote of 228-202.
Under the terms of the special rule, the House then considered a motion offered by Representative
David Obey, the chairman of the House Appropriations Committee, to agree to the House
amendment to the Senate amendment to H.R. 2638.54 The House amendment was agreed to by a
vote of 370-58, and the legislation was returned to the Senate for further action by that chamber.
50 The legislative text of the House amendment made in order under H.Res. 1488 was set forth in the Rules
Committee’s report, on pp. 3-146, and in the
Congressional Record (daily ed.) of September 24, 2008, at pp. H9231-
H9289.
51 For House consideration of H.Res. 1488, see the
Congressional Record (daily ed.) of September 24, 2008, at pp.
H9218-H9231.
52 Section 426 of the 1974 act is codified at 2 U.S.C. 658e.
53 According to Members’ statements and media reports, the legislative text and explanatory material pertaining to the
House amendment had been made available late in the previous day, September 23.
54 For House consideration of the amendment, see the
Congressional Record (daily ed.) of September 24, 2008, at pp.
H9231-H9305.
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On September 26, the Senate took up by unanimous consent the House message regarding its
action on H.R. 2638. Senator Sheldon Whitehouse, acting on behalf of Senate Majority Leader
Harry Reid, moved to concur in the House amendment with a further amendment (number 5670),
offered a second-degree amendment (number 5671) to amendment number 5670, and submitted a
cloture motion on his motion to concur.55 The amendments were pro forma in nature and changed
the effective date of the act by one to two days.
The intent of these actions was to position the Senate to act expeditiously on the measure on the
following day, with further amendments and debate restricted (should the cloture motion
succeed).
On Saturday, September 27, the Senate completed action on the motion to concur in the House
amendment.56 Upon a successful vote, 83-12, to invoke cloture on the motion to concur,
amendment number 5670 was withdrawn and amendment number 5671 thus fell. After a period
of further debate, the Senate agreed to the motion to concur, by a vote of 78-12, thus clearing the
measure for the President.
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President Bush signed H.R. 2638 into law on September 30, 2008 (P.L. 110-329; 122 Stat. 3574-
3716). The President issued a statement upon signing the bill, indicating his concern with some of
its features.57 First, he criticized the inclusion of continuing appropriations for FY2009:
I am disappointed that the Congress passed a long-term continuing resolution. There is much
work to be done, and the Congress should not adjourn for the year without finishing
important business on spending, taxes, and free trade agreements.
Second, he stated generally his objection to the inclusion in the act of the kinds of provisions
often carried in appropriations acts (i.e., reporting requirements, legislative vetoes, and similar
provisions) that he regards as undermining his constitutional authority:58
Finally, this legislation contains certain provisions similar to those found in prior
appropriations bills passed by the Congress that might be construed to be inconsistent with
my Constitutional responsibilities. To avoid such potential infirmities, the executive branch
will interpret and construe such provisions in the same manner as I have previously stated in
regard to similar provisions.
55 See the
Congressional Record (daily ed.) of September 26, 2008 at pp. S9850-S9851. Earlier in the day, the Senate
took comparable actions with respect to Senate amendments number 5660 and 5661 and a cloture motion submitted by
Senate Majority Leader Harry Reid, but those actions were vitiated. See the
Congressional Record (daily ed.) of
September 26, 2008 at pp. S9621-S9622 and p. S9850.
56 See the
Congressional Record (daily ed.) of September 27, 2008 at pp. S9883-S9897 and p. S9901-S9966.
57 See White House press release, “Statement by the President on H.R. 2638, the ‘Consolidated Security, Disaster
Assistance, and Continuing Appropriations Act, 2009’” (September 30, 2008), available on the White House website at
http://www.whitehouse.gov/news/releases/2008/09/20080930-7.html.
58 For background information on this topic, see CRS Report RL33667,
Presidential Signing Statements: Constitutional
and Institutional Implications, by T. J. Halstead.
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President Bush did not cite the specific provisions to which he objected.
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The Office of Management and Budget (OMB) has taken action in two areas—apportionment of
continuing appropriations and guidance on earmarking—with regard to the implementation of the
Consolidated Appropriations Act for FY2009. These two areas are discussed separately below.
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One of the key roles played by OMB in the implementation of appropriations acts involves the
apportionment of funds, which is intended mainly to prevent agencies from using all of the funds
appropriated to their accounts before the fiscal year (or other period of availability) expires.
Under the apportionment process, OMB makes appropriated funds available to an account in
increments, typically one-quarter of the annual amount for each quarter of the fiscal year.59
Because continuing appropriations acts commonly provide funds for a portion of the fiscal year,
OMB usually issues special instructions to agencies regarding apportionments whenever such a
measure is enacted.
On September 30, 2008, OMB issued Bulletin No. 08-02,
Apportionment of the Continuing
Resolution(s) for Fiscal Year 2009, instructing agencies with respect to apportionments for
continuing appropriations provided in Division A of P.L. 110-329.60 The bulletin supplemented
instructions regarding apportionments under continuing resolutions provided in Section 123 of
OMB Circular A-11.61
In the bulletin, OMB Director Jim Nussle indicated that, with a limited number of exceptions,
appropriations for accounts included under Division A would be apportioned automatically based
on the annualized amount multiplied by the
lower of the percentage of the fiscal year covered by
the act (43.01%) or the historical seasonal rate of obligations for the period of the year covered by
the act.62 Thus, an account with an annualized appropriation of $100 million for FY2009 under
the act automatically would be apportioned $43.010 million (or a lesser amount if the historical
seasonal rate of obligations so indicated) through March 6, 2009.
59 The apportionment process was established pursuant to the Antideficiency Act. For more discussion of the process
and the Antideficiency Act, see (1) Section 120 of OMB Circular A-11,
Preparation, Submission and Execution of the
Budget (6/26/08), available on the OMB website at http://www.whitehouse.gov/omb/circulars/a11/current_year/
s120.pdf; and (2) Government Accountability Office,
Antideficiency Act Background, available on the GAO website at
http://www.gao.gov/ada/antideficiency.htm.
60The bulletin is available on the OMB website at http://www.whitehouse.gov/omb/bulletins/fy2008/b08-02.pdf.
61 Section 123 of the current OMB Circular A-11 is available on the OMB website at http://www.whitehouse.gov/omb/
circulars/a11/current_year/s123.pdf.
62 For a discussion of some of the issues confronted by federal agencies when operating under a continuing resolution,
see CRS Report RL34700,
Interim Continuing Resolutions (CRs): Potential Impacts on Agency Operations, by Clinton
T. Brass.
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Earmarking, which generally may be defined as the allocation of appropriations, either in statute
or in accompanying committee report language or other documentation, on the basis of specified
projects, activities, entities, or geographic areas (and typically at the request of the President or
one or more Members of Congress), has been a regular feature of the annual appropriations
process for many years. During the 110th Congress, after several Congresses in which the use of
earmarks increased significantly, the House and Senate adopted new rules governing their use.63
The appropriations cycle for FY2008 was marked by contention between President George W.
Bush and Congress over the number and dollar amount of earmarks. The Consolidated
Appropriations Act for FY2008 brought action on the regular appropriations bills for that fiscal
year to a close.64 President Bush signed the measure into law on November 13, 2007, as P.L. 110-
161 (121 Stat. 1844-2456). Upon signing the bill, he issued a statement indicating his concern
with some of its features, including the inclusion of “nearly 9,800 earmarks that total more than
$10 billion,” according to his estimates.65
On January 28, 2008, in his State of the Union Address to Congress, President Bush indicated that
he would veto future annual appropriation acts if the number and cost of earmarks were not
reduced substantially.66 On the next day, he issued Executive Order 13457, entitled “Protecting
American Taxpayers From Government Spending on Wasteful Earmarks.”67 In general, E.O.
13457 instructed agency officials that they “should not” spend funds earmarked by Congress on a
non-statutory basis, “except when required by law or when an agency has itself determined a
project, program, activity, grant, or other transaction to have merit under statutory criteria or other
merit-based decision making.”68
On October 23, 2008, OMB issued Memorandum No. 09-03,
Guidance on Implementing P.L. No.
110-329 in accordance with Executive Order 13457 on “Protecting American Taxpayers From
Government Spending on Wasteful Earmarks.”69 With respect to continuing appropriations
provided in the Consolidated Appropriations Act for FY2009, the memorandum instructed
agencies to fund a statutorily-based earmark only if it: (1) was in the text of enacted
appropriations for FY2008; (2) was of a continuing nature (i.e., not of a one-time, non-recurring
nature); and (3) could not be executed by funding it in the remainder of FY2009, after the
continuing appropriations had expired. Earmarks provided on a non-statutory basis, according to
the memorandum, were not to be funded. OMB guidance for the funding of earmarks for the three
63 For additional information on the new earmarking rules, see CRS Report RL34462,
House and Senate Procedural
Rules Concerning Earmark Disclosure, by Sandy Streeter.
64 The content and legislative history of the act is discussed briefly in CRS Report RL34298,
Consolidated
Appropriations Act for FY2008: Brief Overview, by Robert Keith.
65 “Statement on Signing the Consolidated Appropriations Act, 2008” (December 26, 2007),
Weekly Compilation of
Presidential Documents, vol. 43, no. 52, p. 1638.
66 The 2008 State of the Union Address, as inserted into the
Congressional Record, is available on the GPO Access
website at http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=2008_record&docid=cr28ja08-94.pdf.
67 Executive Order 13457 (January 29, 2008), “Protecting American Taxpayers From Government Spending on
Wasteful Earmarks,”
Federal Register, vol. 73, no. 22, February 1, 2008, pp. 6417-6418.
68Extensive background on the order is provided in: (1) CRS Report RL34373,
Earmarks Executive Order: Legal
Issues, by Thomas J. Nicola and T. J. Halstead, and (2) CRS Report RL34648,
Bush Administration Policy Regarding
Congressionally Originated Earmarks: An Overview, by Clinton T. Brass, Garrett Hatch, and R. Eric Petersen.
69 The bulletin is available on the OMB website at http://www.whitehouse.gov/omb/memoranda/fy2009/m09-03.pdf.
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regular appropriations acts included in the Consolidated Appropriations Act for FY2009 similarly
adhered to the requirements of E.O. 13457.
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Robert Keith
Specialist in American National Government
rkeith@crs.loc.gov, 7-8659
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