On Friday, February 9, Congress passed yet another Continuing Resolution (C.R.) to ensure that the government remains open. This most recent CR created a new deadline of March 23 when once again we face a possible shut-down. Unlike the other CRs that we have seen pass over the last several months, this one was seen as a victory by various interest groups as the CR was used as a legislative vehicle to move many other critical pieces of legislation. Among the many additions to the CR was extended funding the Children’s Health Insurance Program, funding for the Community Health Center program as well as other critical health programs. Another bipartisan effort that came about from this CR was an additional six billion dollars for opioid addiction and treatment. Sounds promising right? But let's take a closer look and try to understand why what may sound good could just be that—a very impressive talking point.
If you aren’t one to immerse yourself in the intricacies of the legislative process, you may not be able to distinguish the differences between mandatory funding by the federal government and what is otherwise optional. For example, the government mandated that money would continue to be dispersed under the CR to an amount agreed upon the last time a budget (or omnibus) was passed. The terminology that tells you that federal funding is mandatory is a simple “shall.” Seems reasonable as shall is an action verb. However, not every bill that passes has the term “shall” as part of its legislative language. In fact, many don’t, and this is where it gets tricky.
The opposite term to "shall" and one that is a part of the opioid legislation is “may.” Amazingly, just that one term makes all of the difference as to if/how a piece of legislation is funded and carried out as written. The term “may” actually amounts to a congressional suggestion. Congress is suggesting disbursing additional opioid funding as we all recognize that our country is in the grips of a drug crisis. However, given that this is just a suggestion and therefore option, the appropriators, those who hold the purse strings for non-mandatory funding, could opt not to fulfill this suggestion. That is the power of the appropriators who are often not mentioned in press releases and media reports and yet, they have tremendous power.
Are pieces of legislation that contain the word “may” therefore meaningless? No. Depending on the importance of the legislation to Congress as a whole, it is entirely possible that some money, perhaps not the amount designated in the language, will, in fact, be appropriated. However, it is important for all of us to understand these two very simple terms, "shall" and "may," as we assess what Congress has done by passing legislation. What headlines regarding the passage of various provisions in legislation might lead you to believe versus what that legislation may in fact produce can be very different and all based on two elementary but significant words.
*Contributing Author: James Leckie