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It Is Unjust for Congress to Fund Expired, Unauthorized Laws

William L. Kovacs

January 2022

It Is Unjust for Congress to Fund Expired, Unauthorized Laws


Republicans and Democrats have used their political power to impose a massive and unjust national debt of $30 trillion on future generations. Since this debt has been imposed through a law-making process that did not have the participation of those who will be burdened with its payment, it is an unjust law. As such Congress has a moral duty and the legal power to remedy this injustice. If Congress fails to address this issue, it creates a high probability of future generations living in involuntary servitude to the federal government.

Most Americans understand debt can be reduced in several ways, cut spending, raise taxes, inflate it away or default. Since all options are painful and likely disruptive to the beneficiaries of government spending, Congress just continues spending.

Before continuing with its spending, Congress must keep in mind, complex societies collapse. Massively indebted societies collapse. Societies with their militaries deployed throughout the world collapsed. Highly regulated societies collapse. The U.S. is all these combined, contentedly sitting on a bubble of debt, unable to address the serious risks it poses. Congress and the recipients of government largesse delude themselves into believing collapse can’t happen here. Unfortunately, collapse has happened to every major empire in history and it will happen here unless the risks from debt are reduced.

As with all collapses, societies can live with risk for decades. At some point, however, if not addressed, risk turns into a disaster; society slips into the abyss. Once in the abyss, it can take centuries to reemerge as chaos rules.

To reduce our national debt, everything must be considered: taxes, spending, sale of assets, elimination of overreaching laws and regulations, and transferring to states programs they can implement better and more efficiently than the federal government. While dramatic options may exceed the courage of today’s politicians, there are smaller steps that could reduce the national debt by hundreds of billions of dollars. Even a small step to start reducing the debt would be a giant leap in government accountability.

Congress could obey its rules and stop funding laws that have expired; laws that have no authorization

For FY 2021 appropriations, the Congressional Budget Office “… identified 1,068 authorizations of appropriations – stemming from 274 laws – that expired before the beginning of the fiscal year 2022.”

House of Representatives Rule XXI provides that “[A]n appropriation may not be reported in a general appropriation bill…for an expenditure not previously authorized by law…”

The laws passed by Congress generally fall into two categories under its regular order:

  1. Laws are authorized for a set period of time, for example, one, three, or five years. At the end of the authorized period, Congress must reauthorize the law for it to continue being funded.
  2. Laws that have no expiration date and for which Congress mandates continuous funding, for example, Social Security. These are referred to as mandatory spending laws or entitlements.

This distinction is significant when attempting to reduce spending. Simply, when the authorization period of a discretionary law expires, Congress has the opportunity to let it lapse, amend it, or reauthorize it. Congress can hold oversight hearings to examine the law’s effectiveness. This oversight provides Congress control over the legislative process and, by extension, the regulatory process, since regulations are issued to implement the laws enacted by Congress.  More laws mean more regulation. Fewer laws mean fewer regulations.

Unfortunately, every year, Congress avoids the review of hundreds of expired laws. In fact, between 25% -33% of all laws do not have congressional authorizations. Moreover, since Congress rarely passes all twelve appropriation bills by the October 1 deadline, it merely bundles hundreds of billions of dollars into a Continuing Resolution or Omnibus appropriation to fund hundreds of disparate laws. Since the fiscal year 1997, the budget deadline has never been met. Instead, Congress enacts Continuing Resolutions that fund the government at the prior years’ funding level. Between FY 1998 and 2022, Congress passed 125 Continuing Resolutions.

Within this mindless appropriations process, however, Congress performs one act that debases the legislative process, while sanctioning the perpetual growth of the bureaucracy. This mindless act is a parliamentary procedure that allows the House to waive its Rule XXI by deeming hundreds of unauthorized laws to be authorized for purposes of making appropriations. This simple waiver gives life to hundreds of laws that have expired and for which Congress did not have sufficient interest to determine the continued need for the law. (The Senate does not have a similar prohibition.)

The House’s frequent use of waivers is contrary to almost two centuries of legislative practice for funding the implementation of laws. While there was always an informal process that required Congress first pass a substantive law and then appropriate monies to implement the law, Congress formalized this process in 1837, when the House of Representatives provided by a rule that “no appropriation shall be reported in such general appropriations bills, or be in order as an amendment thereto, for any expenditure not previously authorized by law.”   

This prohibition continues today and it can be enforced by a point of order. Unfortunately, Congress has enacted mechanisms that allow itself to waive the rule by suspension, unanimous consent, or in the House by a special rule, which usually deems the unauthorized laws to be waived.

By circumventing its own rules, Congress avoids having to make the difficult decisions on which laws should continue in effect. It merely allows all laws to remain in effect. Though this charade is an easy way for Congress to avoid doing its job, it is a prime reason why Congress has institutionalized the growth of government.

CBO started collecting data on the funding of unauthorized appropriations as early as 1975 and prepared written reports to Congress starting in 1986. Notwithstanding the amount of excellent information collected and produced by the CBO, Congress has not acted on it even though the amount of funding for unauthorized appropriations increases every year. The tens of billions of dollars that could be saved is staggering. In FY 2015 Congress appropriated about $294 billion for programs whose authorizations of appropriations have expired. In FY 2020 Congress appropriated about $332 billion for programs whose authorizations of appropriations have expired. In FY 2021 Congress has appropriated about $432 billion for 1,068 programs whose authorizations of appropriations have expired.

For Congress to reclaim its lawmaking powers, it does not need to shut down the entire government. All it needs is for a few brave members to stand up and force votes to deny funding for programs that have not been reauthorized. Members of Congress have a choice to review each law and reauthorize, amend, or terminate it, or publicly waive the rules for expediency. Congress consistently chooses the cowardly way of “leadership.”

If members of Congress started raising points of order to stop the funding of expired laws or voted against the waiving of regular order, Congress would begin to assume responsibility for the legislative process by examining every law as each authorization period expires. This process will require Congress to examine what it has enacted and how each law impacts the American people. As this process moves forward, Congress will reduce its budget deficits by tens of billions annually, simply by pruning laws that do not achieve their purpose, or for which the costs greatly outweigh the benefits.

Congress is responsible to the American people. It now needs to act responsibly.