[Congressional Bills 112th Congress]
[From the U.S. Government Publishing Office]
[S. 3361 Introduced in Senate (IS)]
112th CONGRESS
2d Session
S. 3361
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
June 28, 2012
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.''.
Kilbourn v. Thompson, 103 U.S. 168, 191-192 (1881).
(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) of 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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