[Congressional Bills 107th Congress]
[From the U.S. Government Publishing Office]
[H.R. 864 Introduced in House (IH)]
107th CONGRESS
1st Session
H. R. 864
To restore the separation of powers between the Congress and the
President.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
March 6, 2001
Mr. Paul introduced the following bill; which was referred to the
Committee on the Judiciary
_______________________________________________________________________
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.
The 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 and 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. 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. 4. REQUIREMENT OF STATEMENT OF AUTHORITY FOR PRESIDENTIAL ORDERS.
(a) Statement of Authority.--The President shall provide for 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. This subsection applies to Presidential
orders in effect on or after the date that is 180 days after the date
of enactment of this Act.
SEC. 5. 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 Congress, 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 a power of such State or on a
power afforded to such commonwealth, district, territory, or
possession under any congressional enactment or relevant treaty
of the United States.
(3) Aggrieved persons.--Any person aggrieved in a liberty
or property interest adversely affected directly by the
challenged Presidential order.
SEC. 6. NATIONAL EMERGENCY POWER DIVESTED TO CONGRESS.
(a) Divestiture 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.
(b) Termination of Powers Under Existing 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, United States Code) 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 the date of
enactment of this Act. Such termination shall not affect--
(A) any action taken or proceeding pending that is
not finally concluded or determined before such date of
termination;
(B) any action or proceeding based on any act
committed before such date termination; or
(C) any rights or duties that matured or penalties
that were incurred prior to such date of termination.
(2) National emergency defined.--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.
SEC. 7. PRESIDENTIAL ORDER DEFINED.
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.
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