MEMORANDUM April 3, Subject:

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1 MEMORANDUM April 3, 2018 Subject: From: Expedited Procedure for Considering Presidential Rescission Messages Under Section 1017 of the Impoundment Control Act of 1974 James V. Saturno, Specialist on Congress and the Legislative Process, Elizabeth Rybicki, Specialist on Congress and the Legislative Process, This memorandum was prepared to enable distribution to more than one congressional office. This memorandum has been prepared in response multiple requests for information concerning the expedited procedure for considering presidential rescission messages under Section 1017 of the Impoundment Control Act of 1974 (ICA). 1 In the 1970s, Congress and the President disagreed over whether the President could impound funds; that is, they disagreed over whether, and in what circumstances, the President could order executive branch agencies to reduce or withhold funds that had been provided in law. Decisions by federal courts, including a unanimous decision by the Supreme Court in Train v. City of New York, 2 and the enactment of the ICA clarified that the President has only limited authority in this area. Specifically, under the ICA, the President can withhold funds for a limited time if he complies with specified reporting requirements to Congress, but he cannot permanently prevent the obligation or expenditure of funds provided in law unless Congress agrees. 3 The ICA created procedures for Congress to expeditiously consider presidential proposals to rescind budget authority under certain circumstances. 4 Under these procedures, the first step is that the President may transmit a special message to Congress proposing specific rescissions. The message must specify the amount of budget authority to be rescinded, as well as all facts, circumstances, and considerations relating to or bearing upon the proposed rescission. 5 Funds identified in such a special message may be 1 Title X of the Congressional Budget and Impoundment Control Act of 1974 (P.L ), 2 U.S.C U.S. 35 (1975). In this case, the Court held that there was nothing in the law that would permit the Administrator of the Environmental Protection Agency to allot to the states less than the amount appropriated. 3 The ICA distinguished between two types of impoundments: rescissions, which permanently cancel budget authority, and deferrals, which temporarily delay budget authority. This memorandum addresses only rescission requests and the expedited procedures for their consideration. 4 Budget authority is the amount of money that an agency or department has the legal authority to obligate. For example, an appropriation of a specific amount can provide that legal authority, as can a provision allowing an agency or department to enter into contracts or to borrow money. 5 Section 1012 specifies what the special message must contain; Section 1014 imposes certain requirements on the transmission and publication of special messages. For more on rescission requests pursuant to the ICA, see Archived CRS Report RL33869, (continued...)

2 Congressional Research Service 2 reserved, or withheld, from obligation temporarily. The funds may only be withheld from obligation for a maximum of 45 days of continuous session 6 after Congress receives the special message, however. Funds must be released at that time if Congress has not acted on the request or has not completed action on a bill that rescinds all or part of the amount proposed. Although the ICA does not require Congress to act on the President s proposal for rescissions, it may choose to do so. If legislation is introduced, however, consisting only of some or all of the rescissions proposed by the President in one or more special messages, then that legislation can be considered under expedited procedures in the House and the Senate during the 45 days specified in Section 1017 of the Act. These procedures, described in detail below, effectively place a time limit on committee consideration and also limit debate in both chambers. Not all proposals to cancel spending are rescission requests. The President can and does propose cancellations of budget authority in a variety of ways. 7 Such a proposal becomes a rescission request that can delay the use of funds for 45 days or qualify for these expedited procedures, however, only if it is proposed in the form of a special message meeting the requirements of the ICA. Furthermore, Congress can and does consider legislation rescinding funds using the regular legislative process. Rescissions are regularly included in appropriations bills, for example. The expedited procedures described below are optional, and are triggered only when the President submits a special rescission message pursuant to the ICA and Congress responds by considering an introduced bill consisting of some or all of the proposed rescissions. Introduction and Referral of a Rescission Bill After the President transmits a special message proposing rescissions, any Member of Congress may introduce a rescission bill, defined in the ICA as legislation consisting only of language to rescind, in whole or in part, budget authority proposed to be rescinded in such a message. 8 Historically, a party leader (...continued) Rescission Actions Since 1974: Review and Assessment of the Record, by Virginia A. McMurtry. 6 Continuous session is defined in Section 1011(5), which provides that the days on which either House is not in session because of an adjournment of more than 3 days to a day certain shall be excluded in the computation of the 45-day period (as well as from the 25-day period for committee consideration provided under Section 1017(b)(1)). Days after a sine die adjournment between sessions of a Congress are also not included in the computation. The section further provides that if the last session of a Congress adjourns sine die during the 45 calendar days after receipt of the special message, or if the President transmits a special message after the last session of a Congress has adjourned sine die, the message shall be deemed to have been retransmitted on the first day of the succeeding Congress, and the 45-day period commences on the day after. This effectively allows some funds to be withheld from obligation for a period of longer than 45 calendar days. For more information on measuring periods of action prescribed in expedited procedure statutes, see CRS Report R42977, Sessions, Adjournments, and Recesses of Congress, by Richard S. Beth and Valerie Heitshusen. 7 OMB Circular No. A-11 (2016), distinguishes between proposals for rescissions and proposals for cancellations of budgetary resources. Rescissions are proposals by the President to reduce budgetary resources pursuant to the provisions and requirements of the ICA, and the President has the authority under the ICA to withhold such funds for 45 days. Cancellations, on the other hand, are proposals by the President to reduce budgetary resources that are not subject to the provisions and requirements of the ICA, and the President cannot temporarily withhold such funds (see GAO, Impoundments Resulting from the President's Proposed Rescissions of October 28, 2005, B , Mar. 2, 2006). Although both terms are sometimes used interchangeably to refer broadly to any legislative action to reduce budgetary resources, proposals for cancellations are not eligible for consideration under the expedited procedures in the ICA and would, instead, be subject to regular legislative procedures. The practice of the George W. Bush and Obama Administrations was to submit requests for cancellations and not to submit special messages proposing rescissions pursuant to the ICA, and thus there have been no requests that would be eligible for consideration under the procedures in Section 1017 since those submitted by President Clinton in The definition of a rescission bill is provided in Section 1011(3).

3 Congressional Research Service 3 has introduced the legislation by request in most cases, signaling that the act of introduction is not necessarily a personal endorsement of the bill. To qualify for consideration under the ICA expedited procedures, a rescission bill need not contain all of the President s proposed rescissions of budget authority. For example, the President could submit 100 separate rescissions, and a Member might introduce a bill containing just 50 of them. Multiple measures might be introduced in response to a single presidential message, allowing flexibility in the packaging of the individual rescission proposals from the President. A Member may also introduce a bill containing rescissions not proposed by the President, but such a bill would not be eligible for consideration under these expedited procedures. The introduced measure is then referred to committee. In the House, in most cases the bill is referred under the usual practice to the Appropriations Committee. 9 In the Senate, such measures would generally be referred concurrently to the Appropriations Committee and the Budget Committee. 10 Discharging a Committee from Consideration of a Rescission Bill in the House and Senate Section 1017(b) of the ICA provides that if the committee to which a rescission bill has been referred in either the House or the Senate has not reported it at the end of 25 calendar days of continuous session after its introduction, 11 it is in order on the floor to move to discharge the committee from further consideration of the bill (or to discharge the committee from further consideration of any other rescission bill that includes only rescissions proposed in the same special message). A motion to discharge may be made by any Member favoring the bill (if it is supported by one-fifth of the Members of the chamber, a quorum being present), although it would not be in order after the committee has reported a bill with respect to the same special message. Debate on the motion is limited to not more than one hour, divided equally, 12 and it is not in order to amend the motion. It is also not in order to move to reconsider the vote by which the motion is agreed to or disagreed to. While this process could prevent a committee from blocking consideration of a bill when a majority wishes to take it up on the floor, the motion to discharge, even if it is agreed to, does not guarantee that the full chamber will consider the rescission bill. A successful motion to discharge would merely place the bill on the respective chamber s calendar. It would still be necessary for the chamber to adopt a subsequent motion, or use some other mechanism, to bring up the bill for floor consideration. It does not appear that this discharge procedure has ever been used. 9 House Rule X, clause (1)(b)(2), confers jurisdiction over Rescissions of appropriations contained in appropriations Acts to the Appropriations Committee. 10 A Senate standing order (originally agreed to on January 30, 1975, and modified by unanimous consent on April 11, 1986), provides that messages received pursuant to the ICA be referred concurrently to the Appropriations Committee and to the Budget Committee (as well as to any other appropriate committee exercising jurisdiction over contract or borrowing authority included in the message). The Budget Committee s consideration extends only to macroeconomic implications, impact on priorities and aggregate spending levels, and the legality of the President s use of the deferral or rescissions mechanism under title X. (Congressional Record, (daily edition), vol. 132 (April 11, 1986), p. S4157). The Appropriations Committee (or any other committee) retains their normal jurisdictional responsibilities under Senate Rule XXV, clause 1. The standing order further provides that the Budget Committee (and any other committee) must report their views, if any, to the Appropriations Committee within 20 days following referral. 11 See footnote 6 for the definition of continuous session under the ICA. 12 In the House, time is divided equally between those favoring and those opposing the bill, and in the Senate equally between the majority leader and the minority leader or their designees.

4 Congressional Research Service 4 House Floor Consideration Section 1017(c) of the ICA provides for the floor consideration of a rescission bill by the House. Such a measure is privileged for consideration, which means a Member could interrupt the regular order of business to propose that the House consider any such bill reported from committee (or discharged). In the 1970s, rescission bills were called up as privileged business on several occasions, although unanimous consent agreements were typically used subsequently to set terms for their consideration. In that era, however, it was more common for other measures that enjoyed privilege under House rules, such as general appropriations bills, to be considered in this manner. In current practice, most major legislation even that granted privilege under House rules or rule-making statutes is nearly always considered under the terms of a special rule reported by the Rules Committee (which can be used to set tailored parameters for consideration). In the absence of a special rule, the ICA limits debate on a rescission bill to two hours, and provides that this time be equally divided between those in favor and those against the rescission bill. Members may propose amendments, and the amending process would proceed as under the regular rules of the House, including the requirement that amendments be germane. By precedent, the germaneness requirement restricts House Members to offering amendments that either strike a rescission, change the amount of a rescission (but not to an amount greater than that proposed by the President), or add a rescission that was proposed by the President but not included in that rescission bill (but, again, not to an amount greater than that proposed by the President). 13 Senate Floor Consideration Section 1017(d) of the ICA provides for floor consideration of a rescission bill by the Senate. In addition, the Senate has interpreted the ICA to grant a rescission bill privilege for consideration. This means that the question of whether or not to take up a bill may be decided by a majority vote on a nondebatable motion. Under regular Senate procedures, the question of whether to take up a measure would usually be subject to extended debate; in that case, while the question is decided by majority vote, supermajority support (three-fifths of the Senate) might be required to bring debate to a close. The ICA limits the total time for debate on a rescission bill to 10 hours. As with similar limits on budget resolutions and reconciliation bills, this is a limitation on debate, not on total consideration. As a result, even after the 10 hours has expired, it is still in order to offer amendments or other motions (although they could only be debated by unanimous consent). The law also imposes a germaneness requirement on amendments to a rescission bill. Because the Senate has no general germaneness requirement, without this provision, Senators would be free to offer amendments on any topic. Unlike the House, however, the Senate apparently has no published precedent to guide Senators on what would constitute a germane amendment to a rescission bill. 14 Resolving Differences Between the Chambers Under the U.S. Constitution, the House and Senate must agree to the same bill with the same text before it can be presented to the President. If one chamber passes a rescission bill and sends it to the other chamber, and that chamber passes the measure without change, it could be sent to the President for his 13 Deschler, Louis and Wm. Holmes Brown. Procedure in the U.S. House of Representatives. 97 th Cong., 2 nd sess., (Washington: GPO, 1982), chapter 13, For a general discussion of germaneness in the Senate, see Floyd M. Riddick and Alan S. Frumin, Riddick's Senate Procedure: Precedents and Practices, 101 st Cong., 2 nd sess., S.Doc (Washington: GPO, 1992) (hereafter Riddick s Procedure), pp

5 Congressional Research Service 5 signature. If, however, either chamber amended a rescission bill sent from the other chamber, then the House and Senate must resolve their differences prior to presentation. The ICA does not create a process to facilitate reaching agreement on a legislative vehicle in a circumstance when the House considers a House bill and the Senate considers a Senate bill. The ICA also does not expedite the process of getting to conference, unlike other types of budgetary legislation established under the Congressional Budget Act. The ICA does provide an expedited procedure for the Senate to consider any compromise reached with the House. Conference reports are already privileged for consideration by the Senate, and the ICA adds a limit on floor debate of a conference report of two hours. In the event the House and Senate do not form a formal conference committee, and instead attempt to resolve their differences by considering amendments between the chambers, debate is limited in the Senate to 30 minutes on each amendment in disagreement. In contrast to the limits imposed by the ICA on these rescission measures, under regular Senate rules, both conference reports and amendments between the chambers could be subject to extended consideration (possibly requiring an affirmative three-fifths vote to reach a vote). The ICA contains no expedited procedures for consideration of a bicameral compromise in the House. It should be noted that the House and Senate are not prevented from considering a conference report after the period of 45 days of continuous session following receipt of the special message. In the Senate, however, the conference report would not qualify for consideration under the expedited procedure after the 45 days, and therefore the support of three-fifths of the Senate could be necessary to end consideration of the conference report. As a consequence, even if Congress chooses to consider a rescission bill, the period of 45 days of continuous session may end before a rescission bill has been enacted into law, requiring the release of the reserved funds. 15 Powers and Limitations of the Congress and the President The first section of the ICA states that nothing in the Act shall be construed as asserting or conceding the constitutional powers or limitations of either the Congress or the President. The provisions of the law described above reflect this intent. The law creates special procedures for the consideration of presidential rescission proposals, but the procedures of the ICA do not bind the Congress to the President s spending priorities: Congress can choose to consider all, some, or none of the President s rescission proposals. Congress and the President can also choose to rescind previously enacted funds by passing a law through the regular legislative process. The ICA was not intended to alter this, and Congress and the President have largely relied on the regular legislative process to consider rescissions. Finally, each chamber of Congress retains the constitutional authority to set its own rules of proceeding, and therefore can modify the procedures of the ICA even to the extent of rendering them inapplicable to legislation that might otherwise qualify for expedited consideration. The last known instance in which either chamber is known to have made use of the ICA procedures illustrates how Congress may choose to use these procedures in some, but not all, of its deliberations on a particular measure, and that the law preserves Congress s constitutional prerogatives. In 1992, President George H. W. Bush requested 128 rescissions in four special messages, totaling almost $7.9 billion. 16 In response to the requested rescissions, the House and Senate Appropriations Committees devised their own alternative packages. Because the resulting measure, H.R (102 nd Cong.), was comprised primarily 15 Johnson, Charles W. John V. Sullivan, and Thomas J. Wickham, Jr., House Practice: A Guide to the Rules, Precedents and Procedures of the House, 115 th Cong., 1 st sess., (Washington: GPO, 2017) chapter 7, 20. Riddick's Procedure, pp U.S. Congress, Rescinding Certain Budget Authority, and for other purposes, conference report to accompany H.R. 4990, 102 nd Cong., 2 nd sess., H.Rept (Washington: GPO, 1992).

6 Congressional Research Service 6 of rescissions initiated by Congress, rather than only rescissions requested by the President, it was considered by the House under the terms of a special rule reported from the Rules Committee, H.Res. 447 (102 nd Cong.). It is notable that, in addition to providing for the consideration of H.R. 4990, H.Res. 447 included language specifying that the procedures established under Section 1017 of the ICA could not be used subsequently to bring to the House floor a rescission bill comprising rescissions proposed in the President s special rescission messages. As amended, H.R passed the House, A companion measure, S. 2403, consisting of rescissions requested by the President was reported by the Senate Appropriations Committee with a substitute, 17 and brought to the Senate floor for consideration as a privileged question under Section The Senate subsequently considered the substitute which included some rescissions requested by the President, but was composed primarily of others that had not been requested. The substitute, as amended, was agreed to, By unanimous consent, the Senate passed H.R. 4990, with an amendment consisting of the text of S Subsequently, a conference report was agreed to the House, , and by the Senate, 90-9, before being signed into law by the President Three other measures consisting of rescissions requested by President Bush, S. 2402, 2551, and S. 2750, were disposed of by the Senate by unanimous consent. 18 P.L