[Congressional Bills 115th Congress]
[From the U.S. Government Publishing Office]
[S. 3710 Introduced in Senate (IS)]

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115th CONGRESS
  2d Session
                                S. 3710

 To end the unconstitutional delegation of legislative power which was 
   exclusively vested in the Senate and House of Representatives by 
 article I, section 1 of the Constitution of the United States, and to 
 direct the Comptroller General of the United States to issue a report 
  to Congress detailing the extent of the problem of unconstitutional 
delegation to the end that such delegations can be phased out, thereby 
  restoring the constitutional principle of separation of powers set 
 forth in the first sections of the Constitution of the United States.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                            December 5, 2018

   Mr. Paul introduced the following bill; which was read twice and 
referred to the Committee on Homeland Security and Governmental Affairs

_______________________________________________________________________

                                 A BILL


 
 To end the unconstitutional delegation of legislative power which was 
   exclusively vested in the Senate and House of Representatives by 
 article I, section 1 of the Constitution of the United States, and to 
 direct the Comptroller General of the United States to issue a report 
  to Congress detailing the extent of the problem of unconstitutional 
delegation to the end that such delegations can be phased out, thereby 
  restoring the constitutional principle of separation of powers set 
 forth in the first sections of the Constitution of the United States.

    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 ``Write the Laws Act''.

SEC. 2. CONSTITUTIONAL AUTHORITY STATEMENT.

    (a) In General.--This Act is enacted pursuant to the powers 
conferred by the Constitution of the United States upon Congress by--
            (1) article I, section 1, which vests in Congress all 
        legislative powers granted under the Constitution; and
            (2) article I, section 8, clause 18, which vests in 
        Congress the power to make all laws that shall be necessary and 
        proper for executing the legislative power granted to Congress 
        in the Constitution.
    (b) Other Authority.--This Act is also enacted to bring the 
enforcement of Federal law into compliance with the guarantee under the 
Fifth Amendment to the Constitution of the United States that no person 
be deprived of life, liberty, or property without due process of law.

SEC. 3. FINDINGS.

    Congress finds the following:
            (1) Article I, section 1 of the Constitution of the United 
        States vests the legislative powers enumerated therein in 
        Congress, consisting of a Senate and a House of 
        Representatives, subject only to the veto power of the 
        President as provided in article I, section 7, clause 2.
            (2) Article II, section 1 of the Constitution of the United 
        States vests the executive power of the United States in a 
        President.
            (3) Article III, section 1 of the Constitution of the 
        United States vests the judicial power of the United States in 
        ``one supreme Court, and in such inferior courts as the 
        Congress may from time to time ordain and establish'', subject 
        only to the jurisdictional limitations set forth in article 
        III, section 2.
            (4) As the Supreme Court of the United States has stated, 
        ``In the main, [the Constitution of the United States] has 
        blocked out with singular precision, and in bold lines, in its 
        three primary Articles, the allotment of power to the 
        executive, the legislative, and judicial departments of the 
        government [and] the powers confided by the Constitution to one 
        of these departments cannot be exercised by another.''. 
        Kilbourn v. Thompson, 103 U.S. 168, 191 (1881).
            (5) ``It is . . . essential to the successful working of 
        this system, that the persons entrusted with power in any one 
        of these branches shall not be permitted to encroach upon the 
        powers confided to others, but that each shall by the law of 
        its creation be limited to the exercise of the powers . . . of 
        its own department and no other.''. Id.
            (6) ``The increase in the number of States, in their 
        population and wealth, and in the amount of power . . . [has] 
        present[ed] powerful and growing temptations to those to whom 
        that exercise is intrusted, to overstep the just boundaries of 
        their own department, and enter upon the domain of one of the 
        others, or to assume powers not intrusted to either of them.''. 
        Id. at 191-192.
            (7) Succumbing to these ``powerful and growing'' 
        temptations, and beginning in the late nineteenth century with 
        the Interstate Commerce Commission and continuing to the 
        present time, Congress has unconstitutionally created numerous 
        administrative agencies with blended powers, namely--
                    (A) the exercise of legislative power vested by the 
                Constitution of the United States in Congress;
                    (B) the exercise of executive power vested by the 
                Constitution of the United States in the President; and
                    (C) the exercise of judicial power vested by the 
                Constitution of the United States in the Supreme Court 
                and lower Federal courts.
            (8) By delegating legislative, executive, and judicial 
        power to the various administrative agencies, Congress has 
        departed from the separation of powers structure of the 
        Constitution of the United States, and ignored the warning of 
        the framers of that instrument that ``The accumulation of all 
        powers, legislative, executive, and judiciary, in the same 
        hands, whether of one, a few, or many, and whether hereditary, 
        self-appointed, or elective, may justly be pronounced the very 
        definition of tyranny.''. James Madison, The Federalist No. 47.
            (9) Further, by delegating legislative, executive, and 
        judicial powers to various administrative agencies, Congress 
        has unconstitutionally established a Star Chamber-like system 
        of rules promulgated, executed, and adjudicated by 
        administrative agencies that are functionally a part of the 
        executive branch of the Federal Government in violation of the 
        due process guarantee of the Fifth Amendment to the 
        Constitution of the United States.
            (10) By the very nature of legislative power, and by the 
        express terms of article I, section 1 of the Constitution of 
        the United States, Congress may not delegate any legislative 
        power to any other branch of the Federal Government or other 
        entity, including any administrative agency. As Chief Justice 
        John Marshall stated: ``It will not be contended that Congress 
        can delegate to the courts, or to any other tribunals, powers 
        which are strictly and exclusively legislative.''. Wayman v. 
        Southard, 10 Wheat. (23 U.S.) 1, 42 (1825).
            (11) As Chief Justice Melville Fuller explained, a 
        ``criminal offense'' created or clarified by an agency in the 
        executive branch is not valid unless the offense ``is fully and 
        completely defined by the act'' of Congress. In re Kollock, 165 
        U.S. 526, 533 (1897).
            (12) By vesting legislative power in the Congress, the 
        Constitution requires the Senate and the House of 
        Representatives to enact statutes containing general rules to 
        be executed by the President, as provided in article II, 
        section 1 of the Constitution of the United States, and to be 
        adjudicated in a case or controversy by such inferior courts as 
        Congress may from time to time establish, or in the Supreme 
        Court, as provided in article III, sections 1 and 2.
            (13) By abdicating its constitutional legislative 
        responsibility to write the laws whereby the people are 
        governed, and having unconstitutionally delegated that power to 
        unelected bureaucrats, Congress has undermined the 
        constitutional protections of--
                    (A) the checks and balances of a bicameral 
                legislative body; and
                    (B) a Presidential veto.
            (14) As a direct consequence of Congress having abdicated 
        its responsibility to properly exercise the legislative power 
        vested by the Constitution of the United States, Congress has--
                    (A) imposed onerous and unreasonable burdens upon 
                the American people; and
                    (B) violated the constitutional principle of the 
                separation of the legislative, executive, and judicial 
                processes and functions.

SEC. 4. RESTORING THE SEPARATION OF POWERS.

    (a) In General.--Title 1 of the United States Code is amended by 
inserting after chapter 2 the following:

                   ``CHAPTER 2A--SEPARATION OF POWERS

``Sec.
``151. Nondelegation of legislative power.
``152. Enforcement clause.
``153. Applicability.
``Sec. 151. Nondelegation of legislative power
    ``(a) Definition.--In this section, the term `delegation of 
legislative powers'--
            ``(1) includes--
                    ``(A) the creation or clarification of any criminal 
                or civil offense; and
                    ``(B) the creation or clarification of any non-
                criminal regulation, prohibition or limitation 
                applicable to the public, or some subset thereof, that 
                is not fully and completely defined in an Act of 
                Congress, except that the executive branch of 
                government may be delegated authority to make factual 
                findings that will determine the date upon which such 
                an Act is implemented, suspended, or revived; and
            ``(2) does not include the issuance of any Presidential 
        proclamation, or the issuance of any rule or regulation 
        governing the internal operation of any agency, or conditions 
        made upon grants or contracts issued by any agency.
    ``(b) Prohibition.--An Act of Congress may not contain any 
delegation of legislative powers, whether to--
            ``(1) any component within the legislative branch of the 
        Federal Government;
            ``(2) the President or any other member of the executive 
        branch of the Federal Government;
            ``(3) the judicial branch of the Federal Government;
            ``(4) any agency;
            ``(5) any quasi-public agency;
            ``(6) any State or instrumentality thereof; or
            ``(7) any other organization or individual.
    ``(c) Executive Actions.--No new Presidential directive, 
adjudicative decision, rule, or regulation, or change to an existing 
Presidential directive, adjudicative decision, rule, or regulation 
governing, limiting, imposing a penalty on, or otherwise regulating any 
activity of any individual or entity, other than an officer or employee 
of the Federal Government, may be promulgated or put into effect, 
unless the directive, decision, rule, or regulation is authorized by an 
Act of Congress that complies with subsection (b).
    ``(d) Report.--Not later than 6 months after the date of enactment 
of this chapter, the Comptroller General of the United States shall 
submit to Congress a report identifying all statutes enacted before the 
date that is 90 days after the date of enactment of this chapter which 
contain any delegation of legislative powers prohibited under this 
section.
``Sec. 152. Enforcement clause
    ``(a) In General.--An Act of Congress, Presidential directive, 
adjudicative decision, rule, or regulation that does not comply with 
section 151 shall have no force or effect and no legal, equitable, 
regulatory, civil, or criminal action may be brought under such an Act 
of Congress, Presidential directive, adjudicative decision, rule, or 
regulation.
    ``(b) Cause of Action.--Any person aggrieved by any action of any 
officer or employee in the executive branch of the Federal Government 
under any Act of Congress that does not comply with section 151 may 
bring a cause of action under sections 2201 and 2202 of title 28 
against the United States to seek appropriate relief, including an 
injunction against enforcement of any Act of Congress, Presidential 
directive, adjudicative decision, rule, or regulation that does not 
comply with section 151.
    ``(c) Standard of Review.--In any action brought under subsection 
(b), the standard of review shall be de novo.
``Sec. 153. Effective date
    ``This chapter shall apply to any Act of Congress, Presidential 
directive, adjudicative decision, rule, or regulation, change to an 
existing Presidential directive, adjudicative decision, rule, or 
regulation, enacted or promulgated on or after the date that is 90 days 
after the date of enactment of this chapter.''.
    (b) Technical and Conforming Amendment.--The table of chapters for 
title 1, United States Code, is amended by inserting after the item 
relating to chapter 2 the following:

``2A.  Separation of powers.................................     151''.

SEC. 5. SEVERABILITY CLAUSE.

    If any provision of this Act or an amendment made by this Act, or 
the application of a provision or amendment to any person or 
circumstance, is held to be invalid for any reason in any court of 
competent jurisdiction, the remainder of this Act and amendments made 
by this Act, and the application of the provisions and amendment to any 
other person or circumstance, shall not be affected.
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