Emergency Spending: Statutory and Congressional Rules

Emergency Spending: Statutory and Congressional Rules

Order Code RS21035
Updated July 24, 2007
Emergency Spending:
Statutory and Congressional Rules
James V. Saturno
Specialist on the Congress
Government and Finance Division
Summary
The designation of spending as emergency has had significance in both procedural
and budgetary terms. The Budget Enforcement Act (BEA; 1990-2002) placed statutory
limits (caps) on the level of federal discretionary spending, enforced by across-the-board
spending cuts, known as a sequester. If, however, spending were designated as
emergency by both the President and Congress, it would not trigger a sequester, because
the caps would be adjusted automatically by an amount equal to the emergency
spending. Although the spending caps established under the BEA have expired,
additional limitations adopted by the House and Senate in their respective rules
concerning the use of emergency designations continue to be in force. In particular, the
budget resolution for FY2008 (S.Con.Res. 21, 110th Congress) provides a point of order
in the Senate against the use of emergency designations. This report will be updated to
reflect any changes in the rules concerning the use of emergency designations.
Control of the process for initiating, considering, and enacting appropriations for
unanticipated or emergency purposes has been a longstanding concern within the federal
budget process. For example, the Congressional Budget and Impoundment Control Act
of 1974 included a requirement that the budget resolution include an allowance for
“contingencies”;1 similarly, the President’s budget was required to include
an allowance for additional estimated expenditures and proposed appropriations for
the ensuing fiscal year, and an allowance for unanticipated uncontrollable
expenditures for the ensuing fiscal year.2
No explicit limitations, however, were placed on either branch with regard to their
prerogative to request or enact spending for any purpose, including supplemental
appropriations. As part of presidential-congressional budget summit agreements in 1987
1 P.L. 93-344, Sec. 301(a)(2), 88 Stat. 306.
2 P.L. 93-344, Sec. 604, 88 Stat. 324.

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and 1989, appropriations caps were enacted, and the two branches agreed not to initiate
supplemental spending above these amounts “except in the case of a dire emergency.”
In neither agreement was there a definition for a dire emergency, or a requirement that any
supplemental spending be offset.3
The Budget Enforcement Act
With the Budget Enforcement Act of 1990,4 the process for enacting emergency
spending became more formalized. The act generally shifted the focus of budgetary
control mechanisms from the projected deficit to the spending or revenue effect of current
legislation, by providing for the direct enforcement of statutory discretionary spending
limits and a limitation on changes to entitlement spending and revenues known as “pay-
as-you-go” or PAYGO.5 In addition to specifying the spending limit, the act also
provided for several required adjustments, including emergency appropriations. The act
provided that
If, for any fiscal year, appropriations for discretionary accounts are enacted that the
President designates as emergency requirements and that the Congress so designates
in statute, the adjustment shall be the total of such appropriations in discretionary
accounts designated as emergency requirements and outlays flowing in all fiscal years
from such appropriations.6
There is currently no statutory spending caps for discretionary spending. A similar
provision of the act specified that enforcement of PAYGO excluded emergency
provisions as well.7 However, almost all of the spending designated as emergency under
the act was for discretionary spending accounts.8
The BEA provided that either the President or Congress could initiate the emergency
spending designation. The President could initiate emergency spending by designating
the spending as emergency in his request, which would then have to be similarly
designated by Congress in statutory language. Congress could also initiate emergency
spending by making the designation in statutory language. When doing so, it usually
3 William G. Dauster, “Budget Emergencies,” Journal of Legislation, vol. 18, no. 2, 1992, pp.
249-315.
4 Title XIII of P.L. 101-508, 104 Stat. 1388-573-1388-630. This act amended the Balanced
Budget and Emergency Deficit Control Act of 1985, P.L. 100-119.
5 For more on the federal budget process, see CRS Report 98-721, Introduction to the Federal
Budget Process, by Robert Keith.
6 Sec. 251(b)(2)(A). This language was most recently enacted in 1997 in Title X of P.L. 105-33
and appears at 111 Stat. 699.
7 Sec. 252(d)(4)(B) excludes from the PAYGO process estimates of amounts for emergency
provisions, as designated under Sec. 252(e). This language was most recently enacted in 1997
in Title X of P.L. 105-33 and appears at 111 Stat. 703.
8 The emergency designation was used four times for legislation subject to PAYGO: Sec. 6 of
P.L. 103-6, Sec. 3309(c) of P.L. 105-206, Sec. 101(b) of P.L. 107-42, and Sec. 502 of P.L. 107-
147.

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made the availability of such funds for obligation contingent on the President designating
them as well.
In addition, Section 314(a) of the Congressional Budget Act of 1974 provides for an
adjustment of aggregates set forth in the budget resolution, as well as allocations made
pursuant to those aggregates, to reflect the amount of spending carrying emergency
designations under the BEA. By making this adjustment apply while a bill or amendment
was under consideration, it effectively exempted the provision from certain points of
order under the Congressional Budget Act.9
The act did not define or place limits on the use of the emergency designation, other
than the requirement that it be so designated by both the President and Congress. This
provided a maximum degree of flexibility, but also led to criticism from some Members
of Congress that the emergency designation could be applied to non-emergency spending,
and thus be used as a means for circumventing budgetary discipline. This resulted in
additional rules concerning the consideration of emergency spending legislation in both
the House and the Senate. Although the statutory provisions concerning the use of
emergency designations has expired, these additional rules continue to have an impact on
House and Senate procedure.
House Rules
In January 1995, the House added a new provision to its rules, House Rule XXI,
clause 2(e), to prevent non-emergency spending from being added to an appropriations
bill designated as providing emergency spending.10 The rule provides that
A provision other than an appropriation designated as an emergency under section
251(b)(2) or section 252(e) of the Balanced Budget and Emergency Deficit Control
Act, a rescission of budget authority, or a reduction in direct spending an amount for
a designated emergency may not be reported in an appropriation bill or joint
resolution containing an emergency designation under section 252(b)(2) or section
252(e) of such Act and may not be in order as an amendment thereto.
Although this provision has continued to be included in House rules, the expiration
of statutory spending limits on spending in 2002 has meant that the designation of
spending as emergency no longer provides for an automatic adjustment of aggregates set
forth in the budget resolution, nor for allocations made pursuant to those aggregates. In
response, a provision was adopted in Section 502(b) of the FY2004 budget resolution
(H.Con.Res. 95, 108th Congress) specifying that
... any bill, joint resolution, amendment, or conference report [designated as an
emergency requirement] shall not count for purposes of sections 302, 303, 311, and
401 of the Congressional Budget Act of 1974.
9 In particular, points of order under Secs. 311 and 302 enforcing the aggregate spending amount
and committee allocations, respectively. For more on points of order, see CRS Report 97-865,
Points of Order in the Congressional Budget Process, by James V. Saturno.
10 Rep. Gerald Solomon, remarks in the House, Congressional Record, vol. 141, January 4, 1995,
p. 475.

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A similar provision was adopted in Section 402(a) of the FY2006 budget resolution
(H.Con.Res. 95, 109th Congress). In addition, this subsection provided that supplemental
appropriations for FY2005 or FY2006 for “contingency operations related to the global
war on terrorism” designated as emergency would not count for purposes of Sections 302,
303, 311, and 401 of the Congressional Budget Act.
Although the House and Senate did not come to agreement on the budget resolution
for FY2007, the House did adopt a resolution (H.Res. 818, 109th Congress) deeming the
provisions of the House-passed version of the budget resolution (H.Con.Res. 376, 109th
Congress) to apply in the House, including Section 402 exempting from procedural limits
imposed under Titles III and IV of the Congressional Budget Act appropriations for
contingency operations directly related to the global war on terrorism, and other
unanticipated defense-related operations. In addition, Section 501 provided for a reserve
fund of $6.45 billion to allow for adjustment of the allocations and aggregates in the
budget resolution for amounts designated as emergency spending. The resolution further
required in Section 504 that committees include an explanation of how a provision
designated as an emergency requirement met the criteria for that designation enumerated
in Section 502.
The budget resolution for FY2008 (S.Con.Res. 21, 110th Congress) included as
Section 204(b) a provision that appropriations for discretionary amounts designated as
necessary for emergency needs “shall not be counted for the purposes of titles III and IV
of the Congressional Budget Act of 1974.” Unlike some earlier versions of this rule, there
were no provisions designating specific types of spending as emergency spending in
advance, although the budget resolution did provide funds for overseas deployment and
related activities as a separate functional category.11 In addition, Section 207(d)(1)(E)(ii)
provides that amounts designated for overseas deployment in excess of the amounts
provided for in the resolution shall not count for purposes of enforcement of Titles III and
IV of the Congressional Budget Act.
Senate Rules
The Senate has taken a different approach to limiting the use of emergency
designations. In 1999, the Senate first adopted a point of order to prohibit consideration
of legislation containing an emergency designation.12 This mechanism was designed so
that a point of order could be raised against any emergency designation in a measure,
which could then be stricken from the measure without further action. The point of order
could be waived, however, by a vote of three-fifths of the Senate. The result of this was
effectively to require that any emergency designation be supported by three-fifths of the
Senate, in order to insure that it would remain as part of the measure. If a waiver was not
granted, the emergency designation would be stricken, although the spending could
remain in the measure subject to any other applicable budgetary limits. This provision
also included language providing guidelines for justifying an emergency designation, but
these guidelines were not binding. This point of order was readopted in modified form
11 Sec. 103(21) of S.Con.Res. 21 (110th Cong.) provides $124.2 billion for FY2007 and $145.2
billion for FY2008 under function 970 for Overseas Deployments.
12 Sec. 206(b) of H.Con.Res. 68 (106th Cong.).

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in 2000,13 including a provision establishing that it does not apply against an emergency
designation for a provision making discretionary appropriations for defense spending.14
In the 108th Congress, the Senate included an updated version of this point of order.15
Under this section:
When the Senate is considering a bill, resolution, amendment, motion, or conference
report, if a point of order is made by a Senator against an emergency designation in
that measure, that provision making such a designation shall be stricken from the
measure and may not be offered as an amendment from the floor.
As in the House, Section 502(c) of the FY2004 budget resolution (H.Con.Res. 95;
108th Congress) provided that in the Senate any spending with an emergency designation
shall not count for purposes of enforcing Sections 302, 303, 311, and 401 of the
Congressional Budget Act, nor for other applicable enforcement provisions in the budget
resolution. As with previous versions of this point of order, it did not apply to
discretionary spending for defense accounts, and it could be waived by a vote of three-
fifths of the Senate.
This point of order was reiterated in the FY2005 Department of Defense
Appropriations Act,16 and Section 402(b) of the FY2006 budget resolution (H.Con.Res.
95, 109th Congress).
Because the House and Senate did not come to an agreement on a budget resolution
for FY2007, the Senate included a provision in Section 7035 of the Emergency
Supplemental Appropriations Act for Defense, the Global War on Terror, and Hurricane
Recovery, 2006 (P.L. 109-234) providing for a limit on discretionary spending, but
allowing adjustments to those limits pursuant to Section 402 of S.Con.Res. 83 (109th
Congress) as passed by the Senate. In addition to reiterating the Senate’s point of order
against designating spending as emergency spending (subject to the waiver provision in
the resolution), this section provided for a limit on total exemptions for emergency
spending.
The previous version of the emergency spending rule was supplanted in the budget
resolution for FY2008 (S.Con.Res. 21, 110th Congress). Section 204(a) provides that
spending designated as an emergency requirement shall not count for purposes of Sections
302 and 311 of the Congressional Budget Act and Sections 201, 203, and 207 of the
budget resolution (relating to PAYGO, long-term deficits, and discretionary spending
limits).
13 Sec. 205(b) of H.Con.Res. 290 (106th Cong.).
14 Sec. 205(g) of H.Con.Res. 290 (106th Cong.).
15 Sec. 502(c) of H.Con.Res. 95 (108th Cong.).
16 P.L. 108-287, Sec. 14007(b)(2) incorporates by reference the language pertaining to emergency
designations in Sec. 402 of S.Con.Res. 95 (108th Cong.), the FY2005 budget resolution, for which
the conference report was not adopted by the Senate.