Department of Homeland Security: Appropriations Transfer Authority

Publication Date: November 2002

Publisher: Library of Congress. Congressional Research Service

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Research Area: Government

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Abstract:

The establishment of the Department of Homeland Security (DHS), as proposed by President George W. Bush and Members of Congress, involves in large part the transfer to the new department of existing functions carried out by many different agencies and programs. Along with the authority to transfer functions, the legislative proposals include authority to transfer related personnel and assets (including appropriations). The proposals for appropriations transfer authority for the new department have engendered controversy regarding the appropriate balance between providing executive flexibility and retaining congressional control over spending. Generally, appropriations may be spent only on the purposes specified (31 U.S.C. 1301(a)) and may not be transferred to other accounts without statutory approval (31 U.S.C. 1532). Any appropriations so transferred are subject to the same limitations provided under the original appropriations, except as provided by law. Congress has granted transfer authority to the executive branch in two types of measures--in substantive legislation, under the jurisdiction of House and Senate legislative committees, and in annual appropriations acts, under the jurisdiction of the House and Senate Appropriations Committees. Transfer authority in substantive law pertains mainly to agency reorganization; most appropriations transfer authority available to executive agencies on a regular basis is provided in annual appropriations acts and is renewed from year to year. The Administration's proposal to establish the DHS, as reflected in the introduced version of H.R. 5005, the "Homeland Security Act of 2002," provides several different types of appropriations transfer authority for the department, including general, transitional, and incidental transfer authority. With regard to general transfer authority, which would be provided to the Secretary of Homeland Security following the establishment of the department and would cover transfers between accounts within the department's budget, the Administration proposed permanent authority, subject to a 5% limit on the amount that may be transferred from any appropriation and a 15-day notice-requirement to the House and Senate Appropriations Committees. The House Appropriations Committee, and leaders of the Senate Appropriations Committee, strongly objected to the proposed general transfer authority, maintaining that sufficient transfer authority could be provided on an ongoing basis through the annual appropriations process. As passed by the House on July 26, 2002, H.R. 5005 would have reduced the general transfer authority limit to 2% and sunsetted the transfer authority after two years. On November 13, the House passed a modified version of the Homeland Security Act, H.R. 5710, which did not include any general transfer authority. Instead, such authority was included in H.J.Res. 124 (a continuing resolution for FY2003, also passed that day) and was limited to $640 million (including $140 million for start-up costs) and made available for two years. The Senate, which has been considering H.R. 5005 for some time, is expected to embrace the modifications on transfer authority reflected in the House actions on H.R. 5710 and H.J.Res. 124.