Authorization of Appropriations: Procedural and Legal Issues

Jessica Tollestrup
Analyst on Congress and the Legislative Process

Brian T. Yeh
Legislative Attorney

To provide funding for discretionary spending programs of the government, Congress generally uses an annual appropriations process. Under congressional rules, when making decisions about the funding of individual items or programs, however, Congress may be constrained by the terms of previously enacted legislation. The way in which the House and Senate interpret and apply this concept under their respective rules and precedents creates a distinction between authorized and unauthorized appropriations. This report provides a brief explanation of this distinction, and its significance for understanding how appropriations and other legislation work in conjunction to determine how agencies may spend appropriated funds.

The U.S. Constitution grants Congress the “power of the purse” by prohibiting expenditures “but in Consequence of Appropriations made by Law.” As a result, legislation to provide for government expenditures must adhere to the same requirements and conditions imposed on the law-making process as any other measure. The Constitution does not, however, prescribe specific practices or procedures. Instead, the manner in which the House and Senate have chosen to exercise this authority is a construct of congressional rules and practices, which have evolved pursuant to the constitutional authority of each chamber to “determine the Rules of its Proceedings.” One effect of these rules has been the formalization of funding decisions as a twostep process, in which separate legislation to establish or continue federal agencies, programs, policies, projects, or activities, is presumed to be enacted first, and is subsequently followed by legislation that provides funding. Another effect of these rules has been a distinction between those appropriations authorized by law, and those not authorized by law. Under the rules of the House and Senate, this distinction is largely based on technical issues related to the precedents of the respective chamber; the existence of legislation defining the legal authority for particular federal agencies, programs, policies, projects, or activities; and the relationship of such authority to the applicable appropriation.

In most cases, an appropriation is said to be authorized when it follows explicit language defining the legal authority for a federal agency, program, policy, project, or activity that will be applicable in the same fiscal year for which the appropriation is to be enacted. In contrast, an appropriation is said to be unauthorized when no such authority has been enacted or, if previously enacted, has terminated or expired.

There is no constitutional or general statutory requirement that an appropriation must be preceded by a specific act that authorized the appropriation. According to the Government Accountability Office, “The existence of a statute (organic legislation) imposing substantive functions upon an agency that require funding for their performance is itself sufficient legal authorization for the necessary appropriations.”

An authorizing statute that establishes a federal agency often creates statutory duties and obligations for that federal agency (including the responsibility to conduct certain activities such as enforcement of the particular law that the agency is charged with administering). If an authorization of appropriations expires, or if Congress fails to appropriate sufficient funds without explicitly denying their use for a particular purpose, those statutory obligations still exist even though the agency may lack sufficient funds to satisfy them.


Date of Report: November 23, 2011
Number of Pages: 15
Order Number: R42098
Price: $29.95

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