Limitation Provisions in Appropriations bills: A Key Tool of Congressional Policymaking
Matt Glassman | May 6, 2019
Early last week, the House Appropriations Subcommittee on Military Construction, Veterans Affairs, and Related Agencies released its draft FY2020 bill, and subsequently approved it in a markup held on Wednesday. In some respects, this was all very normal; the MilCon bill (as it is widely known) is often one of the first appropriations bills moved through the House, as it is generally popular and relatively free of divisive provisions.
This year, however, the MilCon bill contains a provision that will almost certainly prove controversial: section 612 bars use of any MilCon funds for the purpose of building a wall on the southern border. The exact language reads:
Notwithstanding any other provision of law, none of the funds appropriated in this or any other Act for a military construction project, as defined by section 2801 of title 10, United States Code, for any of fiscal years 2015 through 2019 or for fiscal year 2020 may be obligated, expended, or used to design, construct, or carry out a project to construct a wall, barrier, fence, or road along the Southern border of the United States or a road to provide access to a wall, barrier, or fence constructed along the Southern border of the United States.
This is a direct response to President Trump’s declaration of a national emergency in February, which may allow him to transfer MilCon funds previously appropriated for other purposes to construction of a southern border wall. Congress has thus far refused to directly appropriate the wall funding requested by the president, and also approved legislation in March to end the national emergency. President Trump, however, vetoed that legislation and Congress was unable to override the veto. The president’s authority to transfer the funds is now the subject of several lawsuits. While those lawsuits may ultimately block him from using MilCon funds to build a border wall, the language in section 612 of the FY2020 draft, if made law, would definitely have that effect.
This technique—known in the world of appropriations as a limitation provision—is one of the most common ways Congress exercises the power of the purse, essentially allowing Congress to make policy through the appropriations process. While the executive branch may have the authority to do something, if they are specifically barred from using any appropriated funds to do so, the authority is almost useless.
While many people think of the power of the purse as a positive power of Congress, allowing them to fund priorities as they see fit, its more powerful form is negative: the ability to specifically limit, or completely bar, the use of funds. In general, there are three types of limitations that Congress can put on an appropriation: duration, scope, and amount. The first two are well-known; Congress passes annual appropriations bills, requiring the executive branch to return each year to justify further spending, and Congress circumscribes the use of those funds by offering specific conditions on their use.
But the third type of limitation—the ability to limit the amount of funds, and specifically to limit the amount to $0—is the most powerful. Hundreds of such limitation provisions can be found in appropriations acts each year. Many high-profile congressional policies, ranging from the detention of prisoners at Guantanamo Bay to the use of the F-35 by the Air Force, are continued annually by using appropriations acts to specifically block any funding from being used to implement alternative lines of policy. The Vietnam War was ultimately ended when Congress specifically barred the use of appropriations for any military activity in Southeast Asia.
The FY2020 draft MilCon bill contains a dozen limitation provisions completely barring use of funds for specific purposes, which is not uncommon. The limitation provision regarding the border wall, however, is somewhat unusual. It not only limits the use of FY2020 MilCon funds for the wall, but also prohibits the use of previously appropriated funds from FY2015 through FY2019. This reflects the existence of some five-year money appropriated for military construction and would prevent the president from accessing any of it for a border wall.
Although the limitation provision regarding the border wall is being pursued by House Democrats who are generally opposed to the wall, there are general reasons for appropriators to favor this particular limitation. Given the president’s declaration of a national emergency, it will be impossible for Congress to guarantee that any appropriated MilCon funding gets used for its congressionally-intended purpose if they do not limit the ability of the president to transfer it to wall construction. In that sense, the limitation provision isn’t a guarantee that a wall won’t be built, it’s a guarantee that all the other money provided in the MilCon bill ends up going to the specific purpose Congress intends.
Using limitation provisions in appropriations bills also gives Congress packaging leverage in negotiations with the president. While the president might veto a stand-alone bill that prohibited a given policy, appropriations bills by their very nature are omnibus actions, providing money for a large range of activities across a variety of unrelated policy areas. As the president can only sign or veto a bill in total, Congress can use limitation provisions in combination with spending priorities the president desires to force him to accept some things he doesn’t like as part of an overall package.
It is not clear how the politics of the MilCon border wall limitation provision will play out in Congress. If the president was faced with a MilCon measure containing the limitation provision, he might be concerned about vetoing a bill that included funding for veterans’ affairs and prefer no such bill cross his desk. There was a bare majority in both chambers to overturn the national emergency declaration, but appropriations bills are subject to a filibuster in the Senate, requiring 60 votes to end debate. The Senate will most likely take up and pass a Republican MilCon bill (or MilCon provisions in an omnibus) that do not include the limitation provision. At that point, the border wall may once again become a high-profile issue in the final deal for the FY2020 appropriations.