dissenting:
The Secretary is accused of making an “audacious claim” that in the event Congress did not provide full appropriations, the Secretary was delegated discretion (not reviewable by us) to determine how funds were to be distributed among the tribes. Since the Secretary’s position is firmly based on the plain statutory language as well as a recent Supreme Court decision, his position, whether described as bold or timid, to me seems unassailable. I therefore respectfully dissent.
I do not quite understand the majority’s reasoning. The majority inexplicably bifurcates the question of reviewability and law to apply, yet the question of reviewability entirely depends on whether there is statutory law to apply. Nor is it apparent exactly how the majority applies the “law” that it discerns. The Secretary does enjoy discretion as to how to allocate CSF in light of Congress’ failure to provide full funding, but as the majority puts it, he is obliged to “follow as closely as possible the allocation plan Congress designed in anticipation of full funding.” See Maj. Op. at 1348. We are not told, however, why the Secretary’s approach failed the “as closely as possible” test; the majority just seems to prefer a pro rata distribution based on either the tribes’ 1994 funding or its 1995 requests.
The majority holds that the Secretary’s policy is illegal both for substantive reasons (failing the “as closely as possible” test) and because the policy was a de facto regulation issued contrary to the APA and in excess of the Secretary’s statutory authority to issue regulations. One would expect, then, that the district court would be obliged to remand the case to the Secretary for him to take another crack at the problem, to exercise again that “discretion” that the majority acknowledges. Yet, the majority makes an absolutely unprecedented suggestion that the district court “might choose to hold a hearing at which the appellant tribes and the Secretary could address the precise distribution of the escrowed funds.” Maj. Op. at 1341 n. 2. That approach turns principles of administrative law on their head, e.g., SEC v. Chenery Corp., 332 U.S. 194, 196-97, 67 S.Ct. 1575, 1577-78, 91 L.Ed. 1995 (1947), because it postures the district court as the primary decisionmaker rather than as a reviewing court with only a limited writ under the APA. It would appear that the majority, understandably reluctant to hold that the tribes have a legal entitlement to some sort of a pro rata share of the funds, nevertheless hopes *1353the district court’s order will de facto accomplish that result. But unless the tribes have a legal entitlement to a pro rata share of the funds, they have no more legal claim to the escrowed funds than other tribes to which the Secretary, in his discretion, might distribute these funds. (The escrowed money apparently was taken from the tribes who timely filed, but there are another 44 tribes who also suffered a 50% late “penalty” and who thus stand in the same shoes as appellants.) The majority, by stating otherwise, Maj. Op. at 1341 n. 2, is simply trying to span the unbridgeable analytic gap between recognizing the Secretary has discretion and forthrightly holding that the tribes have an entitlement to a particular amount of funds. The confusion I perceive in the majority’s opinion and its disposition of the case stems, I believe, from an unsuccessful effort to tease statutory law out of a vacuum, a vacuum Congress deliberately created.
It is true that Congress, under the ISDA, restricted the Secretary’s discretion to award CSF among the tribes- — requiring full funding for all — if Congress appropriated sufficient funds for these programs. But § 450j-1(b), as the district court properly observed, unequivocally stated that any tribes’ legal entitlement to funds (“the provision of funds”) was dependent on Congress making full appropriations:
Notwithstanding any other provision in this subchapter, the provision of funds under this subchapter is subject to the availability of appropriations and the Secretary is not required to reduce funding for programs, projects, or activities serving a tribe to make funds available to another tribe or tribal organization under this sub-chapter.
25 U.S.C. § 450j-l(b) (1994). That means the Secretary is under no legal obligation in the event of a shortfall to meet any particular ratio of distribution among the tribes. That, of course, does not mean that the Secretary would feel free to award all of these funds to one favorite tribe. Putting aside constitutional restraints, one can only imagine Congress’ and the President’s outraged reactions to such a misuse of discretion. It may well be that the federal judiciary is prone to think of itself as the indispensable guarantor that executive branch officials will behave in a reasonable manner, but, if so, that perception is unwarranted.
The majority, apparently dismayed that affording the plain meaning to this clause will permit the Secretary to exercise his discretion unreasonably, offers a restrictive interpretation not even the appellants suggest. Both parties agreed that the relevant words for our case were “[njotwithstanding any other provision in this subchapter, the provision of funds under this subchapter is subject to the availability of appropriations----” But the majority reads the words after the word “and” as somehow restricting the meaning of the words before: The tribes do mirabile dictu have an entitlement to some “provision of funds” that bears as closely as possible a relationship to the amounts they would receive under full funding. The Secretary is merely excused from making up a full appropriation for contract support by taking appropriations away from tribal programs, projects, or activities. There are several difficulties with the majority’s construction, which may explain why appellants never offered it. The first is that the second part of the sentence is introduced by the word “and,” which hardly suggests an intent to limit the first part. The second is that the majority’s reading effectively makes the second clause meaningless; if under the first clause, the Secretary is not required to allocate to the tribes more CSF than are appropriated by Congress, he clearly would not be obliged (under the second clause) to take money from tribal programs to do so. And the majority, straining to find a plausible reading, literally changes the words of the second clause. The clause does not read, as the majority paraphrases it, “the Secretary cannot be forced to take money from a program serving a Tribe ... in order to make up for a CSF appropriations shortfall,” Maj. Op. at 1346 (emphasis added). It says the Secretary cannot be forced to take money from a program, project, or activity serving a tribe in order to fund another tribe. This suggests, quite contrary to the majority’s reading, that tribes can be funded unequally. The second clause thus makes clear that the Secretary, at the time he receives an insuffi*1354cient appropriation from Congress, is not legally obliged to divert any funding under the subchapter, which includes both CSF and contract funds, for any purpose away from one or more tribes to give to another.1 In other words, he does not in 1995 have to reduce one tribe’s funding, from either its 1994 funding level or its 1995 requested funding, to fund another tribe at a prior or requested level. Yet, that is exactly what this lawsuit seeks. To say, as does the majority, that its opinion does not do so because “each tribe had a right only to the amount of CSF it would have received under a legal allocation plan,” Maj. Op. at 1342 (emphasis added), is circular; the majority assumes a right or entitlement that does not exist and that it does not purport to find.
Obviously, anytime the Secretary is asked to increase his proposed funding for one or more tribes out of a limited appropriation, he necessarily must reduce funding for the rest. There is no escaping the zero sum game. Congress, apparently unwilling to provide statutorily for distribution ratios in the event of an appropriations shortfall, left it to the Secretary (or subsequent appropriations bills) to deal with that eventuality. The majority’s textbook hypothetical, offered to explain why the Secretary’s discretion is so limited, is defective. The majority suggests that the principal could order students to share books or to rotate books on reserve, but this aspect of the book hypothetical undoes the analogy; funds cannot be shared. Moreover, if the principal need only follow the “formula” “as closely as possible,” it is not clear why the Secretary’s approach is invalid. He chose to distribute funds equally to all tribes meeting a deadline, which was necessary to allow prompt allocation and adequate tribal planning; those who failed to meet the deadline, rather than losing all funding, would receive a set percentage based on their most recent filing.2 Under the majority’s hypothetical, a comparable situation would result if the principal, faced with a book shortage, gave students who came to school the first day a book, but required students who missed the first day to share the leftover books. The majority concedes that “[i]t is not at all clear that this scenario would violate the regulation,” Maj. Op. at 1347 n. 11, so I am at a loss to understand why the Secretary’s distribution violates the statute. He has done the same thing — as full funding as possible for timely tribes, and “sharing” of the remaining funds for tardy tribes. He thus meets the majority’s insistence that everyone have adequate “access” to funds; he in fact created the 50% benefit rule for late-filing tribes precisely to ensure such access. The real problem is that the majority wants to impose its own definition of “adequate.” However, the clear implication of the majority’s hypothetical is that the Secretary does not have to treat timely and tardy tribes alike; as the majority points out, and we agree, § 450j-l(b)’s second sentence as applied to the hypothetical means that the principal does not have to take a *1355book from a timely student to give it to a tardy student. Maj. Op. at 1346.
In any event, requiring close adherence to a “formula” is flatly improper where the Secretary has express statutory discretion over the allocation of a fund. The Supreme Court’s decision in Lincoln v. Vigil, 508 U.S. 182, 113 S.Ct. 2024, 124 L.Ed.2d 101 (1993), is very much on point. There, Congress appropriated a lump sum without indicating how the funds were to be distributed among programs administered for the tribes by the Indian Health Service. The Department of Interior reprogrammed those funds and the court held that its actions were unreviewable. The Court refused to consider legislative history put forward as “law” limiting the Secretary’s discretion because it was disconnected to any statutory language. To be sure, were it not for § 450j-l(b), this case would be distinguishable. But that is like saying if my aunt had wheels, she would be a trolley car. That provision exists, and it wipes out, according to its clear command, the law that otherwise would apply, leaving the Secretary with unreviewable discretion. For that reason, our old case, City of Los Angeles v. Adams, 556 F.2d 40 (D.C.Cir.1977), even if it survives Lincoln unimpaired, is inapposite. There we held that an agency was obliged to consider the authorizing statute’s mode of distribution of funds in the event of an appropriations shortfall, but as the government notes, the authorizing statute there did not include a provision suspending congressional guidelines in such circumstances.
Nor, as the majority recognizes, Maj. Op. at 1349, does the 1995 Appropriations Act provide law to apply; it is silent on the issue. Although appellants rely on a conference report that arguably called for pro rata funding to support their position, as Lincoln recognized, legislative “history” which lacks a “statutory reference point is of no legal consequence.” 508 U.S. at 191-94, 113 S.Ct. at 2031-32; see also International Bhd. of Elec. Workers v. NLRB, 814 F.2d 697, 712 (D.C.Cir.1987). And insofar as the tribes would combine that report with the ISDA § 450j-l(b), which states that the Secretary shall not reduce funding except, inter alia, in accordance with a conference report on a subsequent appropriations bill, that construction, as the government vigorously asserts, would run afoul of INS v. Chadha, 462 U.S. 919, 103 S.Ct. 2764, 77 L.Ed.2d 317 (1983). With no statutory anchor in the 1995 Act, giving legal effect to statements in the committee reports effectively would allow a congressional committee to amend the ISDA Similarly, what a congressional committee— or even the entire Congress — in 1995 may have assumed was meant by the 1988 ISDA is of no legal significance unless the 1995 Congress enacts that assumption. See United Ass’n of Journeymen and Apprentices v. Reno, 73 F.3d 1134, 1139 n. 4 (D.C.Cir.1996).
There remains the question whether the Secretary’s mode of distribution was announced by a rule contrary to his limited statutory authority to issue regulations, and if so, whether that rule was issued in violation of the APA’s notice and comment provisions. See § 450k. As the majority recognizes, that question largely turns on whether he had discretion to award the inadequate funds. Yet the majority concedes that he had some discretion. Therefore, he obviously needed to communicate his policy in some fashion. And in any event, § 450k, like any other provision of the Act, does not apply when § 450j — 1(b) overrides.
*Ji * * * * *
It may well be that certain Congressmen wished that the tribes receive the pro rata distribution which the majority desires, but no law directing that result emerged. My view is that a disciplined reading of the actual statute and Lincoln v. Vigil leaves us with no principled alternative but to accept the Secretary’s argument.
. The majority claims, at 1346 n. 10, that this leaves tribes with “no legal remedy" if the Secretary were either to give the entire appropriation to one tribe or to use the funds for "unrelated programs.” We are presented with neither of these situations. Nevertheless, the former ignores constitutional restraints on the Secretary. And as to the latter, we very much doubt that the appropriation in this case could be read to allow the Secretary to spend the $95,823,000 appropriated in response to his request for CSF on other programs. The most straightforward reading of Congress' appropriation of "not to exceed $95,-823,000” for CSF is that Congress expected the Secretary' to spend that amount on CSF; Congress knew it was appropriating less than the requested funds, and for that reason specified that it intended to limit the amount the Secretary could put toward CSF. A decision by the Secretary to spend that money elsewhere thus would seem to violate the 1995 Appropriations Act. If, by contrast, the appropriation were "lump sum" as to all ISDA expenditures, it would be a direct parallel to Lincoln. See infra at 1342. (Of course, as the majority notes, if a particular distribution were determined to be unlawful, the Secretary would be obliged to "correct" it.)
. It is significant that appellant tribes concede that a deadline is both necessary and appropriate; they protest only the 50% "penalty." But inherent in the power to impose a deadline is the power to establish consequences for those failing to meet it. Thus, the tribes’ argument implicitly is that the consequences here are too severe — but according to what standard? I think it likely that the Secretary lawfully could remove all funding from tardy tribes; his decision to award them 50% of the prior year's funding is thus, as he claims, a benefit intended to mitigate the tribes' failure to file.