Consolidated Appropriations Act, 2008==Incorporation by Reference
| Decision Date | 25 February 2008 |
| Docket Number | B-316010 |
| Parties | Consolidated Appropriations Act, 2008--Incorporation by Reference |
| Court | Comptroller General of the United States |
In a letter dated January 30, 2008, you requested our opinion on the legal effect of seven appropriations provisions in the Consolidated Appropriations Act, 2008, Pub. L. No. 110-161, 121 Stat. 1844 (Dec. 26, 2007). The seven provisions at issue incorporate by reference an explanatory statement of the House Committee on Appropriations that was printed in the Congressional Record on December 17, 2007 . You asked whether the agencies' use of the appropriations enacted in the seven provisions must comply with the referenced allocations contained in the explanatory statement. [1]
For the reasons stated below, we conclude that each of these provisions binds the agency's use of the enacted appropriation to the referenced allocations contained within the explanatory statement. Thus, the affected agencies are required to obligate and expend the appropriations in accordance with the referenced provisions of the explanatory statement.
The Consolidated Appropriations Act, 2008 (Act) contained 11 regular appropriations acts and emergency military funding. Pub. L. No. 110-161. No conference report accompanied the Act; the two houses of Congress reached final agreement with an exchange of amendments. Library of Congress, Congressional Research Service, Consolidated Appropriations Act for FY2008 Brief Overview, No. RL34298 (Jan. 4, 2008). Congress presented the Act to the President on December 24, 2007, and the President signed the Act into law on December 26, 2007 . Although Congress convened no conference committee, section 4 of the Act, which applies to the entire Consolidated Appropriations Act, states that an explanatory statement printed in the Congressional Record on December 17, 2007, by the Chairman of the House Committee on Appropriations should be considered as if it were a joint explanatory statement of a conference committee.
Section 6 contains the appropriations for each of the 11 regular appropriations acts, indicated by divisions A--K. You requested our opinion on the legal effect of the following seven provisions, all of which include legislative language incorporating by reference amount allocations, and in some cases terms and conditions, from the explanatory statement:
1. Under the heading Department of Health and Human Services/Health Resources and Services Administration/Health Resources and Services in division G:
"For carrying out [certain laws]... $6, 978, 099, 000 of which $309, 889, 000 shall be available for construction and renovation (including equipment) of health care and other facilities and other health-related activities specified in the explanatory statement described in section 4 ()..."
Pub. L. No. 110-161, sect. 6, div. G, title 2, 121 Stat. at 2169.
2. Under the heading Department of Education/Higher Education in division G:
Pub. L. No. 110--161, sect. 6, div. G, title 3, 121 Stat. at 2196.
3. Under the heading Institute of Museum and Library Services/Office of Museum and Library Services/Grants and Administration in division G:
"For carrying out the Museum and Library Services Act of 1996 and the National Museum of African American History and Culture Act, $268, 193, 000, of which $18, 610, 000 shall be available for library, museum and related projects and in the amounts specified in the explanatory statement described in section 4 ()..."
Pub. L. No. 110-161, sect. 6, div. G, title 4, 121 Stat. at 2204.
4. Under the heading Administrative Provisions—Small Business Administration in division D:
"For an additional amount under the heading "Small Business Administration, Salaries and Expenses, " $69, 451, 000, to remain available until September 30, 2009, shall be for initiatives related to small business development and entrepreneurship, including programmatic and construction activities: Provided, That amounts made available under this section shall be provided in accordance with the terms and conditions as specified in the explanatory statement described in section 4 ()..."
Pub. L. No. 110-161, sect. 6, div. D, title 5, sect. 534, 121 Stat. at 2012.
5. Under the heading Administrative Provisions— Federal Highway Administration in division K:
"Notwithstanding any other provision of law, the Secretary of Transportation shall set aside from revenue aligned budget authority authorized for fiscal year 2008 under section 110 of title 23, United States Code, such sums as may be necessary for the programs, projects and activities at the level of 98 percent of the corresponding amounts identified under this section in the explanatory statement accompanying this Act..."
Pub. L. No. 110-161, sect. 6, div. K, title 1, sect. 129, 121 Stat. at 2388.
6. Under the heading General Provisions—Department of Transportation in division K:
"Funds provided or limited in this Act under the appropriate accounts within the Federal Highway Administration, the Federal Railroad Administration and the Federal Transit Administration shall be made available for the eligible programs, projects and activities at the level of 98 percent of the corresponding amounts identified in the explanatory statement accompanying this Act for the 'Delta Regional Transportation Development Program'..."
Pub. L. No. 110-161, sect. 6, div. K, title 1, sect. 186, 121 Stat. at 2406.
7. Under the heading Community Planning and Development/Community Development Fund in division K:
"Of the amount made available under this heading, $179, 830, 000 shall be available for grants for the Economic Development Initiative (EDI) to finance a variety of targeted economic investments in accordance with the terms and conditions specified in the explanatory statement accompanying this Act: Provided, That the amount made available for each grant shall be at the level of 98 percent of the corresponding amount cited in said explanatory statement..."
Pub. L. No. 110-161, sect. 6, div. K, title 2, 121 Stat. at 2420.
In general, legislative history is informational and not legally binding. Cherokee Nation of Oklahoma v. Leavitt, 543 U.S. 631, 646 (2005); Lincoln v. Vigil, 508 U.S 182, 192 (1993); 55 Comp. Gen. 812, 820 (1976); 55 Comp. Gen. 307, 319 (1975). In this case, however, the text of these seven provisions of the Consolidated Appropriations Act expressly refers to the explanatory statement of the House Appropriations Committee, printed in the Congressional Record of December 17, 2007, that accompanied the appropriations bill. At issue here is whether the text of these provisions of the law incorporates the explanatory statement into the law such that the agencies' use of the appropriations enacted in the seven provisions is subject to the amounts, and in some cases terms and conditions, specified in the explanatory statement.
As a legislative tool, incorporation by reference is the use of legislative language to make extra-statutory material part of the legislation by indicating that the extra-statutory material should be treated as if it were written out in full in the legislation. See generally Black's Law Dictionary ----781 (8 th ed. 2004). For example, in a 2001 decision, in a case similar to what is before us here, the United States District Court for the District of Columbia upheld the incorporation by reference of an unenacted bill into an appropriations law. Hershey Foods Corp. v. United States Department of Agriculture, 158 F.Supp.2d 37 (D.D.C. 2001), aff'd, 293 F.3d 520 (D.C. Cir. 2002). In that case, the Consolidated Appropriations Act for fiscal year 2000 provided that "H.R. 3428 of the 106 th Congress, as introduced on November 17, 1999 " is "hereby enacted into law." [2] Id. at 38. The unenacted bill that was incorporated into the appropriations law had been published in the Congressional Record. The court said that "Congress may incorporate by cross-reference in its bills if it chooses to legislate in that manner." Id. at 41.
Incorporation by reference is a well-accepted legislative tool. Hershey Foods Corp., 158 F.Supp.2d at 41 (). Indeed, there are numerous instances in which the Supreme Court, for more than 100 years, has accepted incorporation by reference without objection. In an 1892 decision, the Supreme Court had under consideration the scope of a federal statute regarding appeals from the local District of Columbia courts to the U.S. Supreme Court. In re Heath, 144 U.S. 92 (1892). The statute provided for appeals "in the same cases and in like manner as provided by law" with regard to federal circuit courts, thereby incorporating by reference those laws into this statute. Id. at 93. In addressing this statute, the Court took notice of a practice in the early days of the country: "It was not an uncommon course of legislation in the states, at an early day, to adopt, by reference,...
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