106th CONGRESS

1st Session

H. R. 2655

To restore the separation of powers between the Congress and the President.

IN THE HOUSE OF REPRESENTATIVES

July 30, 1999

Mr. PAUL (for himself and Mr. METCALF) introduced the following bill; which was referred to the Committee on International Relations, and in addition to the Committees on the Judiciary, and Rules, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned

A BILL

To restore the separation of powers between the Congress and the President.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

This Act may be cited as the `Separation of Powers Restoration Act'.

SEC. 2. FINDINGS.

Congress finds the following:

(1) As a limit on governmental power, Constitutional framers vested Federal powers in three coequal branches of government, each with unique and limited powers and each with a coequal duty to uphold and sustain the Constitution of the United States.

(2) A Supreme Court justice stated, `The doctrine of the separation of powers was adopted by the convention of 1787 not to promote efficiency but to preclude the exercise of arbitrary power. The purpose was not to avoid friction, but, by means of the inevitable friction incident to the distribution of the governmental powers among three departments, to save the people from autocracy.' Myers v. United States, 272 U.S. 52, 293 (1926) (Brandeis, J., dissenting).

(3) James Madison, quoting Montesquieu, stated in Federalist 47, `There can be no liberty where the legislative and executive powers are united in the same person, or body of magistrates.'

(4) Article I of the Constitution provides, `All legislative powers herein granted shall be vested in a Congress of the United States.'

(5) A congressional committee print has noted that, `[b]ecause the President has no power or authority over individual citizens and their rights except where he is granted such power and authority by a provision in the Constitution or by statute, the President's proclamations are not legally binding and are at best hortatory unless based on such grants of authority.' 85th Cong., 1st Sess., Executive Orders and Proclamations: A Study of a Use of Presidential Powers (Comm. Print 1957).

(6) The Supreme Court has stated that, even if Presidents have, without congressional authority, taken actions only the Congress may take, `Congress has not thereby lost its exclusive constitutional authority to make laws necessary and proper to carry out the powers vested by the Constitution `in the Government of the United States, or any Department of Officer thereof.' (Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952)).

(7) Treaties or Executive Agreements which purport to assign powers not amongst those specifically granted to the Federal Government by the Constitution are non-binding and cannot constitute law.

SEC. 3. SEPARATION OF POWERS RESTORING RESCISSIONS.

(a) REPEAL OF WAR POWERS RESOLUTION- The War Powers Resolution (50 U.S.C. 1541 et seq.) is repealed.

(b) TERMINATION OF STATES OF EMERGENCY-

(1) IN GENERAL- All powers and authorities possessed by the President, any other officer or employee of the Federal Government, or any executive agency (as defined in section 105 of title 5) as a result of the existence of any declaration of national emergency in effect on the date of enactment of this Act are terminated 90 days after such date. Such termination shall not affect--

(A) any action taken or proceeding pending not finally concluded or determined on such date;

(B) any action or proceeding based on any act committed prior to such date; or

(C) any rights or duties that matured or penalties that were incurred prior to such date.

(2) DEFINITION- For the purpose of this subsection, the term `national emergency' means a general declaration of emergency made by the President or any other officer or employee of the executive branch.

(d) TERMINATION OF AUTHORITY TO DECLARE EMERGENCY- To the extent that any Act of Congress in effect on the date of enactment of this Act grants to the President or any other officer or employee of the executive branch the power to declare a national emergency, such power is hereby divested to the Congress alone.

SEC. 4. REQUIREMENT OF STATEMENT OF AUTHORITY FOR PRESIDENTIAL ORDERS.

(a) STATEMENT OF AUTHORITY- The President shall include with each Presidential order a statement of the specific statutory or constitutional provision which in fact grants the President the authority claimed for such action.

(b) INVALIDITY OF NONCONFORMING ORDERS- A Presidential order which does not include the statement required by subsection (a) is invalid, to the extent such Presidential order is issued under authority granted by a congressional enactment.

SEC. 5. EFFECT OF PRESIDENTIAL ORDERS.

(a) LIMITED EFFECT OF PRESIDENTIAL ORDERS- A Presidential order neither constitutes nor has the force of law and is limited in its application and effect to the executive branch.

(b) EXCEPTIONS- Subsection (a) does not apply to--

(1) a reprieve or pardon for an offense against the United States, except in cases of impeachment;

(2) an order given to military personnel pursuant to duties specifically related to actions taken as Commander in Chief of the Armed Forces; or

(3) a Presidential order citing the specific congressional enactment relied upon for the authority exercised in such order and--

(A) issued pursuant to such authority;

(B) commensurate with the limit imposed by the plain language of such authority; and

(C) not issued pursuant to a ratified or unratified treaty or bilateral or multilateral agreement which--

(i) violates the ninth or tenth amendments to the Constitution; or

(ii) makes a delegation of power to a foreign government or international body when no such delegating authority exists under the Constitution.

SEC. 6. STANDING TO CHALLENGE PRESIDENTIAL ORDERS WHICH IMPACT SEPARATION OF POWERS INTEGRITY.

The following persons may bring an action in an appropriate United States court to challenge the validity of any Presidential order which exceeds the power granted to the President by the relevant authorizing statute or the Constitution:

(1) CONGRESS AND ITS MEMBERS- The House of Representatives, the Senate, any Senator, and any Representative to the House of Representatives, if the challenged Presidential order--

(A) infringes on any power of Congress;

(B) exceeds any power granted by a congressional enactment; or

(C) violates section 4 because it does not state the statutory authority which in fact grants the President the power claimed for the action taken in such Presidential order.

(2) STATE AND LOCAL GOVERNMENTS- The highest governmental official of any State, commonwealth, district, territory, or possession of the United States, or any political subdivision thereof, or the designee of such person, if the challenged Presidential order infringes on the powers afforded to the States under the Constitution.

(3) AGGRIEVED PERSONS- Any person aggrieved in a liberty or property interest adversely affected directly by the challenged Presidential order.

SEC. 7. DEFINITION OF PRESIDENTIAL ORDER.

In this Act, the term `Presidential order' means--

(1) any Executive order, Presidential proclamation, or Presidential directive; and

(2) any other Presidential or Executive action by whatever name described purporting to have normative effect outside the executive branch which is issued under the authority of the President or any other officer or employee of the executive branch.