A recent post by Thomas Earnest about a drone casualty reporting provision in recent congressional legislation does something that is common in legal and popular discussion of legislative lawmaking: conflation of authorization and appropriations legislation.
The post states that the provision is being removed “from the Senate version of the Intel Authorization Act, paving the way for the annual appropriations bill to pass the Senate.” However, authorization bills and appropriations bills are different legislative legal instruments. To take a federal courts analogy, they are at least as distinct as habeas petitions and Section 1983 suits.
Authorization bills are about setting policy. They make changes to the U.S. Code (for example, establishing, restructuring, or terminating agency programs, authorities, or entities), sometimes make changes to direct (mandatory) spending programs such as for retirement and health care, and authorize appropriations (discretionary spending) subject to later appropriations bills. With the exception of any direct spending provisions, authorization bills do not actually spend money. In contrast, appropriations bills do spend money. Their distinct legislative text is focused on the legal act of spending.
Reflecting the differences in these legal legislative instruments, authorization and appropriations measures are treated differently under the traditions and standing rules of the House and Senate, and in the Concurrent Resolution on the Budget. They are drafted by different committees with distinct jurisdiction. To the consternation of authorizing committees, Appropriations Committee reports accompanying appropriations bills often do address policy matters, but this report language does not become law.
Authorization and appropriations bills (or individual provisions) are sometimes combined in one larger bill. However, this is not the usual, “regular order.” The bill that the Just Security post discussed, the Intelligence Authorization Act written by the Senate Select Committee on Intelligence, is an authorization bill, with programmatic specifics in a classified addendum. The vast majority of funding for intelligence is appropriated via the annual Defense Appropriations Act, silently buried in bill text funding the Defense Department and explicated in detail in classified annexes to committee reports.
The common conflation of authorization and appropriations bills reflects the relatively little attention given to legislative legal process, compared with the legal community’s overwhelming focus generally on judicial process and the national security law community’s primary focus on the work of executive branch actors. But the authorization/appropriations distinction is important in terms of law (legal effect of different legislative text), process (committees are not equally powerful), policy (which bills and committees get to do it), politics (appropriations bills are more often regarded as “must pass” bills), and personalities (differing committee jurisdiction means a different cast of House and Senate Members driving the process).
Constitutionally, the authorization/appropriations distinction also matters: Article I, Section 8, clause 12 limits the availability of appropriations for the Army to a two year period. That often overlooked requirement gives Defense Appropriations Acts some of their special urgency. Together with Article I’s reservation of the “power of the purse” to Congress and two year House terms, the Army Appropriations Clause also reflects the judgment of the Framers that the most recently elected representatives of the people must affirmatively act to fund the nation’s standing army or it disappears.
Dakota S. Rudesill is Assistant Professor of Law at the Moritz College of Law at The Ohio State University. He teaches Legislation, and National Security Law and Process. Earlier in his career, he served in the U.S. intelligence community, and as the U.S. Senate Budget Committee professional staff member with primary responsibility for defense, intelligence, and foreign affairs spending legislation.