CONSTITUTIONAL ANALYSIS

H.R. 2655 – THE SEPARATION OF POWERS RESTORATION ACT

 

William J. Olson, Attorney at Law

 

I. Introduction

H.R. 2655 – The Separation of Powers Restoration Act is designed to restore the separation of powers between Congress and the president as set forth in Article I and Article II of the Constitution of the United States of America by: (1) terminating all existing states of national emergency and removing from the executive branch any power to declare national emergencies; (2) vesting power in Congress alone to declare states of national emergency; (3) restricting presidential power to issue executive orders by denying to them any force of law except as provided for by Congress; and (4) repealing the War Powers Resolution of 1973.

II. Congress should act now to restore the original constitutional plan for separation of powers.

At the heart of the Constitution of the United States of America is the separation of legislative, executive and judicial powers. James Madison, the father of our constitution, wrote in Federalist 47, "there can be no liberty" when those powers are united in one "person or body of magistrates." Supreme Court Justice Louis Brandeis echoed this view in 1926 when he observed that separation of powers was written into our constitution "to save the people from autocracy." Yet, throughout most of the 20th century, presidents have usurped legislative power by means of unconstitutional executive orders, presidential proclamations and undeclared wars. For too long, Congress has stood silent and, worse yet, aided and abetted these usurpations through legislation granting broad powers to the president. Only by repealing those statutes and by placing express limits on presidential power will such constitutional abuses by stopped.

The powers delegated to the national government by our constitution are distributed to three separate branches of government: the legislative, the executive and the judicial. These are co-equal branches of government. Each branch has unique and limited powers and each has a co-equal duty to uphold and sustain the Constitution of the United States of America.

Whenever one branch exercises powers properly belonging to another branch (e.g., if the president was to legislate) it constitutes a usurpation of the powers of that branch as established by our constitution.

This separation of powers was of great concern to our country’s founding fathers. For example, James Madison, quoting Montesquie, 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." Supreme Court Justice Louis Brandeis observed, "The doctrine of the separation 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)

However, in the 20th century, most American presidents (beginning with Theodore Roosevelt) have usurped legislative authority using "presidential orders" – executive orders, proclamations, etc. President Clinton has made usurpation of legislative power by executive order an art form.

  • President Clinton issued an executive order (later struck down by the courts) seeking to prohibit federal contractors from hiring permanent striker replacements after Congress had repeatedly considered and rejected related legislation.
  • President Clinton also established a 1.7 million acre national monument in Utah (Grand Staircase-Escalante) by proclamation as legislation was pending regarding the future status of the affected parcels of land.
  • President Clinton has appropriated funds for pet projects, such as the American Heritage Rivers Initiative, which have not received appropriations from Congress.
  • President Clinton has also conducted war against the Federal Republic of Yugoslavia without a congressional declaration of even passage of a concurrent resolution in support.

The judiciary cannot be relied upon to defend the prerogatives of the Congress – as it has struck down only two executive orders in the history of the country – one under President Truman and one under President Clinton.

Our country’s founding fathers clearly expected that each branch of government (including Congress) would defend its prerogatives from encroachment by the other branches, setting power against power. See, e.g., Federalist 48 (Madison). Congress has occasionally acted to protect its legislative powers. The War Powers Resolution, the National Emergencies Act, and the International Emergency Economic Powers Act, enacted in the 1970s, all sought the restoration of the constitutional separation of powers. Likewise, the Tenure of Office Act was enacted in the 1860s in an effort to reduce the excessive presidential powers assumed during the Civil War.

The courts can and do resolve cases and controversies that arise from a separation of powers issue. However, under the "political question" doctrine, the courts ordinarily do not intervene in disputes that are perceived as strictly between the legislative and executive branch.

Moreover, in recent cases the United States Supreme Court has virtually closed the courtroom door to members of Congress who seek to challenge congressional delegations of power to the president. Raines v. Byrd, 521 U.S. 811 (1997) (The court found that individual members of Congress lacked standing to litigate the constitutionality of the line item veto granted by Congress to the president.) More recently, in July 1999, the United States Court of Appeals for the District of Columbia Circuit affirmed the dismissal of a lawsuit filed by four members of the U.S. House of Representatives in which they sought a declaratory judgment and an injunction against President Clinton’s executive order establishing the American Heritage Rivers Initiative without any authority from Congress. Thus, Congress must act to protect its constitutional prerogatives. Congress cannot depend upon the courts to protect the separation of powers principle.

III. H.R. 2655 restores the original constitutional plan for separation of powers.

H.R. 2655 restores the original constitutional plan for separation of powers. It repeals the War Powers Resolution of 1973 that has proved ineffective to check the unilateral conduct of wars by the president. It terminates all existing national emergencies and brings to an end the 20th century practice of unconstitutional delegation of broad powers to the president to declare such national emergencies, returning such powers to Congress where they belong. It restricts the power of the president to issue executive orders, providing that such orders have the force of law only as expressly declared by Congress. It creates statutory rules governing the standing of members of Congress and other aggrieved persons to litigate separation of powers issues in the courts. Finally, it legislatively defines the term "presidential order", thereby removing from the president the power to determine the extent of executive powers under our constitution.

    1. Bill Section 3(a) – Repeal the War Powers Resolution
      2.

      The War Powers Resolution, enacted in 1973, requires the president to notify congressional leaders when he is sending troops into combat or potential combat where there is no declaration of war. Without congressional action (i.e., a declaration of war, or an extension of the time American troops may continue to participate in combat), the president must then withdraw the troops within 60 days of his notification to Congress.

      The ineffectiveness of the War Powers Resolution has been exposed during the Clinton administration’s war in Kosovo. The Congress did not declare war or extend the 60 days within which American troops could be used for combat, yet their participation in combat continued. When members of Congress, led by Rep. Tom Campbell (R-CA), attempted to sue in the United States District Court for the District of Columbia to enforce the War Powers Resolution, the federal courts refused to hear the suit. The War Powers Resolution has failed to constrain the unilateral conduct of wars by the president, has been counter-productive, and would be repealed by H.R. 2655.

    2. Bill Section 3(b) – Termination of Presidential Declarations of States of National Emergency

      3. One major source of presidential powers by presidents of both parties has been the exercise of emergency powers in peacetime. Starting with the inauguration of Franklin Roosevelt in March 1993, the United States has been under a constant state of national emergency – except for a brief 14-month period between September 14, 1978 and November 14, 1979. The concept of presidents having additional powers only in wartime has been lost, and presidents enjoy almost all powers in peacetime as well. In 1973, the U.S. Senate’s Special Committee on the Termination of the National Emergency, chaired by Senators Frank Church (D-ID) and Charles Mathias (R-MD), determined that 470 provisions of federal law gave special powers to the executive branch when a national emergency has been proclaimed. (See William J. Olson and Alan Woll, "Memorandum for the President: Presidential Powers to Use the U.S. Armed Forces to Control Potential Civilian Disturbances" Gun Owners of America: Springfield, Virginia, 1999 available at www.wjopc.com.) We currently live under 13 concurrent states of national emergency. If emergency powers are delegated, however unwisely, it would not technically constitute a usurpation of a legislative function.

      Congress has terminated the exercise of emergency powers pursuant to declarations of national emergencies in the past. The National Emergencies Act terminated all such emergency powers as of September 14, 1978. However, Congress left the power to declare subsequent states of national emergency with the president – a power exercised by President Jimmy Carter on November 14, 1979, after the seizure of the U.S. Embassy in Iran.

      Under H.R. 2655, the powers and authorities possessed by the president, agencies, or federal officers and employees that are derived from the currently existing states of national emergency would once again be terminated. However, learning from past mistakes, this bill would vest the authority to declare future national emergencies in Congress alone.

    3. Bill Sections 4 & 5 – Limiting the Legal Force of Presidential Orders
      4.

      Where a presidential order is clearly authorized by our constitution or by statute, it has the force of law. Armstrong v. United States, 80 U.S. 154 (1871). However, many presidential orders lack such authority. Executive Order 10422, issued by President Harry Truman on January 3, 1953, cited the United Nations’ charter as authority. Executive Orders 12276-85, issued by President Carter, and Executive Order 12294, issued by President Ronald Reagan, were based on executive agreements (i.e., unratified treaties) with Iran. Commonly, presidential orders are issued under the intentionally vague authority of titles and responsibilities granted to the president, as when President Truman issued Executive Order 10340 "by virtue of the authority invested in [him] by the Constitution and laws of the United States." Executive Order 10340 was challenged in court; the resulting decision, Youngstown Sheet & Tube v. Sawyer, 343 U.S. 579 (1952), found there was no constitutional authority for President Truman’s action.

      H.R. 2655 would require that each presidential order identify the specific statutory or constitutional provision that empowers the president to take the action embodied in the presidential directive. The bill further states that any presidential directive derived from statutory authority that does not identify that statutory authority is invalid. H.R. 2655 would make it the law that any and all presidential orders lack the force of law and are limited in their application and effect to the executive branch, unless the directive: (1) constitutes a constitutionally-authorized reprieve or pardon for an offense against the United States; (2) constitutes an order given to military personnel pursuant to duties specifically related to actions taken as commander-in-chief of the armed forces; or, as discussed above, (3) cites the specific congressional enactment relied upon for the authority exercised in such order, is issued pursuant to such authority, is commensurate with the limit imposed by the plain language of such authority, and is not issued pursuant to a ratified or unratified treaty or bilateral or multilateral agreement that either violates the Ninth Amendment or Tenth Amendment to the Constitution of the United States of America or delegates power to a foreign government or international body when no such delegating authority exists under our constitution. Under this bill, any alleged basis for the presidential order must be evident. Further, the bill would define what is a constitutional power that may be exercised by presidential order.

    4. Bill Section 6 – Clarification of Standing to Challenge Executive Actions

As noted above, the U.S. Supreme Court, in Raines v. Byrd, held that individual members of Congress have very limited access to the federal courts where presidential actions cause institutional injury to Congress. One Supreme Court case found that a majority of legislators must approve bringing the case for the members of Congress to have standing. This requirement offers no protection to the rights of minorities. H.R. 2655 seeks to remove the barriers to access to the federal courts. Specifically, H.R. 2655 provides that the following persons may bring an action in an appropriate United States court to challenge the validity of any presidential order that exceeds the power granted to the president by the relevant authorizing statute or the Constitution of the United States of America:

  • The U.S. House of Representatives, the U.S. Senate, any senator, and any representative, if the challenged presidential directive
    1. infringes on any power of Congress;
    2. exceeds any power granted by a congressional enactment;
    3. does not state the statutory authority that in fact grants the president the power claimed for the action taken in such presidential order.
  • 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 directive infringes on the powers afforded to the states under the Constitution of the United States of America.
  • Any person aggrieved in a liberty or property interest adversely affected directly by the challenged presidential directive.

By providing statutory rules determining standing, the courtroom door can be opened to members of Congress and state and local officials pursuant to court precedents applying comparable statutory provisions. See, e.g., Association of Data Processing Services Organizations v. Camp, 397 U.S. 150 (1970) and Sunstein, "Standing and the Privatization of Public Law," 88 Columbia Law Review 1432 (1988). Currently, most presidential usurpations are not subject to judicial redress due to the standing limitations established by the U.S. Supreme Court. If H.R. 2655 is enacted, the court will at least be forced to re-examine its standing precedents, if not to accede to the will of Congress.

  1. Bill Section 7 – Defining Most Recent Presidential Orders

Currently, there is no constitutional or statutory definition of "proclamation," or "executive order," or any other form of presidential order. The limited statutory requirements that do govern presidential orders, such as the requirement that executive orders and proclamations be published in the Federal Register, are easily circumvented by changing the nomenclature used. H.R. 2655 would remove that loophole.

H.R. 2655 would provide a statutory definition of a presidential directive: any executive order, presidential proclamation, or presidential directive; and any other presidential or executive action by whatever name described purporting to have normative effect outside the executive branch that is issued under the authority of the president or any other officer or employee of the executive branch.

IV. Conclusion

If we want our children and grandchildren to know and enjoy liberty, we must make certain that the constitutional separation of powers is given full effect. The president’s usurpation of legislative power and the president’s power to make war must be stopped. H.R. 2655 is an essential step in restoring our constitutional government.

 
   
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