What This Bill Does
This bill aims to prevent Congress from giving its law-making power to other branches of government or to agencies. The bill requires the Comptroller General (a government official who audits federal spending) to report to Congress about laws that may improperly delegate this power.
Who It Affects
Anyone who faces enforcement of federal rules or regulations created by agencies rather than Congress. The President and executive branch officials who create rules. Federal agencies that currently write regulations. Congress itself.
Key Provisions
Congress cannot pass laws that delegate its law-making power to the President, courts, agencies, or any other entity (Sec. 4, § 151(b)).
Laws that create or clarify criminal offenses cannot be delegated unless Congress fully and completely defines the offense itself (Sec. 4, § 151(a)(1)(A)).
Regulations affecting the public cannot be delegated unless Congress fully and completely defines them, except the executive branch may determine when a law takes effect based on facts (Sec. 4, § 151(a)(1)(B)).
Any law, rule, or regulation that violates this nondelegation principle has no force or effect and cannot be enforced in court (Sec. 4, § 152(a)).
People harmed by executive branch actions under improper delegations can sue the United States in federal court to stop enforcement (Sec. 4, § 152(b)).
The Comptroller General must submit a report to Congress within six months identifying all existing laws that violate this nondelegation requirement (Sec. 4, § 151(d)).
What Changes
If this bill becomes law, any federal law or regulation passed before 90 days after enactment that improperly delegates Congress's law-making power becomes unenforceable. The bill also blocks future presidential rules or regulations from taking effect unless Congress has fully defined them in law. People could sue federal officials to stop enforcement of improperly delegated powers.
Important Definitions
"Delegation of legislative powers" includes creating or clarifying criminal or civil offenses that Congress has not fully defined, and creating regulations that apply to the public but are not fully defined in law. It does not include presidential proclamations (formal announcements by the President), rules about how agencies run internally, or conditions placed on government grants or contracts (Sec. 4, § 151(a)).
Effective Date
The bill applies to any law, presidential action, rule, or regulation enacted or created 90 days or more after the bill becomes law (Sec. 4, § 153).
II
118TH CONGRESS
1ST SESSION
S. 329
To end the unconstitutional delegation of legislative power which was exclu-
sively 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 Con-
gress 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
FEBRUARY 9, 2023
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 Constitu-
tion of the United States, and to direct the Comptroller
General of the United States to issue a report to Con-
gress detailing the extent of the problem of unconstitu-
tional delegation to the end that such delegations can
be phased out, thereby restoring the constitutional prin-
ciple of separation of powers set forth in the first sec-
tions of the Constitution of the United States.
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•S 329 IS
Be it enacted by the Senate and House of Representa-
1
tives of the United States of America in Congress assembled,
2
SECTION 1. SHORT TITLE.
3
This Act may be cited as the ‘‘Write the Laws Act’’.
4
SEC. 2. CONSTITUTIONAL AUTHORITY STATEMENT.
5
(a) IN GENERAL.—This Act is enacted pursuant to
6
the powers conferred by the Constitution of the United
7
States upon Congress by—
8
(1) article I, section 1, which vests in Congress
9
all legislative powers granted under the Constitution;
10
and
11
(2) article I, section 8, clause 18, which vests
12
in Congress the power to make all laws that shall be
13
necessary and proper for executing the legislative
14
power granted to Congress in the Constitution.
15
(b) OTHER AUTHORITY.—This Act is also enacted to
16
bring the enforcement of Federal law into compliance with
17
the guarantee under the Fifth Amendment to the Con-
18
stitution of the United States that no person be deprived
19
of life, liberty, or property without due process of law.
20
SEC. 3. FINDINGS.
21
Congress finds the following:
22
(1) Article I, section 1 of the Constitution of
23
the United States vests the legislative powers enu-
24
merated therein in Congress, consisting of a Senate
25
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•S 329 IS
and a House of Representatives, subject only to the
1
veto power of the President as provided in article I,
2
section 7, clause 2.
3
(2) Article II, section 1 of the Constitution of
4
the United States vests the Executive power of the
5
United States in a President.
6
(3) Article III, section 1 of the Constitution of
7
the United States vests the judicial power of the
8
United States in ‘‘one supreme Court, and in such
9
inferior courts as the Congress may from time to
10
time ordain and establish’’, subject only to the juris-
11
dictional limitations set forth in article III, section
12
2.
13
(4) As the Supreme Court of the United States
14
has stated, ‘‘In the main, [the Constitution of the
15
United States] has blocked out with singular preci-
16
sion, and in bold lines, in its three primary Articles,
17
the allotment of power to the executive, the legisla-
18
tive, and judicial departments of the government
19
[and] the powers confided by the Constitution to one
20
of these departments cannot be exercised by an-
21
other.’’. Kilbourn v. Thompson, 103 U.S. 168, 191
22
(1881).
23
(5) ‘‘It is . . . essential to the successful work-
24
ing of this system, that the persons entrusted with
25
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•S 329 IS
power in any one of these branches shall not be per-
1
mitted to encroach upon the powers confided to oth-
2
ers, but that each shall by the law of its creation be
3
limited to the exercise of the powers . . . of its own
4
department and no other.’’. Id.
5
(6) ‘‘The increase in the number of States, in
6
their population and wealth, and in the amount of
7
power . . . [has] present[ed] powerful and growing
8
temptations to those to whom that exercise is
9
intrusted, to overstep the just boundaries of their
10
own department, and enter upon the domain of one
11
of the others, or to assume powers not intrusted to
12
either of them.’’. Id. at 191–192.
13
(7) Succumbing to these ‘‘powerful and grow-
14
ing’’ temptations, and beginning in the late nine-
15
teenth century with the Interstate Commerce Com-
16
mission and continuing to the present time, Con-
17
gress has unconstitutionally created numerous ad-
18
ministrative agencies with blended powers, namely—
19
(A) the exercise of legislative power vested
20
by the Constitution of the United States in
21
Congress;
22
(B) the exercise of Executive power vested
23
by the Constitution of the United States in the
24
President; and
25
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(C) the exercise of judicial power vested by
1
the Constitution of the United States in the Su-
2
preme Court and lower Federal courts.
3
(8) By delegating legislative, executive, and ju-
4
dicial power to the various administrative agencies,
5
Congress has departed from the separation of pow-
6
ers structure of the Constitution of the United
7
States, and ignored the warning of the framers of
8
that instrument that ‘‘The accumulation of all pow-
9
ers, legislative, executive, and judiciary, in the same
10
hands, whether of one, a few, or many, and whether
11
hereditary, self-appointed, or elective, may justly be
12
pronounced the very definition of tyranny.’’. James
13
Madison, The Federalist No. 47.
14
(9) Further, by delegating legislative, executive,
15
and judicial powers to various administrative agen-
16
cies, Congress has unconstitutionally established a
17
Star Chamber-like system of rules promulgated, exe-
18
cuted, and adjudicated by administrative agencies
19
that are functionally a part of the executive branch
20
of the Federal Government in violation of the due
21
process guarantee of the Fifth Amendment to the
22
Constitution of the United States.
23
(10) By the very nature of legislative power,
24
and by the express terms of article I, section 1 of
25
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•S 329 IS
the Constitution of the United States, Congress may
1
not delegate any legislative power to any other
2
branch of the Federal Government or other entity,
3
including any administrative agency. As Chief Jus-
4
tice John Marshall stated: ‘‘It will not be contended
5
that congress can delegate to the courts, or to any
6
other tribunals, powers which are strictly and exclu-
7
sively legislative.’’. Wayman v. Southard, 10 Wheat.
8
(23 U.S.) 1, 42 (1825).
9
(11) As Chief Justice Melville Fuller explained,
10
a ‘‘criminal offense’’ created or clarified by an agen-
11
cy in the executive branch is not valid unless the of-
12
fense ‘‘is fully and completely defined by the act’’ of
13
Congress. In re Kollock, 165 U.S. 526, 533 (1897).
14
(12) By vesting legislative power in the Con-
15
gress, the Constitution requires the Senate and the
16
House of Representatives to enact statutes con-
17
taining general rules to be executed by the Presi-
18
dent, as provided in article II, section 1 of the Con-
19
stitution of the United States, and to be adjudicated
20
in a case or controversy by such inferior courts as
21
Congress may from time to time establish, or in the
22
Supreme Court, as provided in article III, sections
23
1 and 2.
24
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•S 329 IS
(13) By abdicating its constitutional legislative
1
responsibility to write the laws whereby the people
2
are governed, and having unconstitutionally dele-
3
gated that power to unelected bureaucrats, Congress
4
has undermined the constitutional protections of—
5
(A) the checks and balances of a bicameral
6
legislative body; and
7
(B) a Presidential veto.
8
(14) As a direct consequence of Congress hav-
9
ing abdicated its responsibility to properly exercise
10
the legislative power vested by the Constitution of
11
the United States, Congress has—
12
(A) imposed onerous and unreasonable
13
burdens upon the American people; and
14
(B) violated the constitutional principle of
15
the separation of the legislative, executive, and
16
judicial processes and functions.
17
SEC. 4. RESTORING THE SEPARATION OF POWERS.
18
(a) IN GENERAL.—Title 1 of the United States Code,
19
is amended by inserting after chapter 2 the following:
20
‘‘CHAPTER 2A—SEPARATION OF POWERS
21
‘‘Sec.
‘‘151. Nondelegation of legislative power.
‘‘152. Enforcement clause.
‘‘153. Effective date.
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•S 329 IS
‘‘§ 151. Nondelegation of legislative power
1
‘‘(a) DEFINITION.—In this section, the term ‘delega-
2
tion of legislative powers’—
3
‘‘(1) includes—
4
‘‘(A) the creation or clarification of any
5
criminal or civil offense; and
6
‘‘(B) the creation or clarification of any
7
non-criminal regulation, prohibition, or limita-
8
tion applicable to the public, or some subset
9
thereof, that is not fully and completely defined
10
in an Act of Congress, except that the executive
11
branch of Government may be delegated au-
12
thority to make factual findings that will deter-
13
mine the date upon which such an Act is imple-
14
mented, suspended, or revived; and
15
‘‘(2) does not include the issuance of any Presi-
16
dential proclamation, or the issuance of any rule or
17
regulation governing the internal operation of any
18
agency, or conditions made upon grants or contracts
19
issued by any agency.
20
‘‘(b) PROHIBITION.—An Act of Congress may not
21
contain any delegation of legislative powers, whether to—
22
‘‘(1) any component within the legislative
23
branch of the Federal Government;
24
‘‘(2) the President or any other member of the
25
executive branch of the Federal Government;
26
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•S 329 IS
‘‘(3) the judicial branch of the Federal Govern-
1
ment;
2
‘‘(4) any agency;
3
‘‘(5) any quasi-public agency;
4
‘‘(6) any State or instrumentality thereof; or
5
‘‘(7) any other organization or individual.
6
‘‘(c) EXECUTIVE ACTIONS.—No new Presidential di-
7
rective, adjudicative decision, rule, or regulation, or
8
change to an existing Presidential directive, adjudicative
9
decision, rule, or regulation governing, limiting, imposing
10
a penalty on, or otherwise regulating any activity of any
11
individual or entity, other than an officer or employee of
12
the Federal Government, may be promulgated or put into
13
effect, unless the directive, decision, rule, or regulation is
14
authorized by an Act of Congress that complies with sub-
15
section (b).
16
‘‘(d) REPORT.—Not later than 6 months after the
17
date of enactment of this chapter, the Comptroller General
18
of the United States shall submit to Congress a report
19
identifying all statutes enacted before the date that is 90
20
days after the date of enactment of this chapter which
21
contain any delegation of legislative powers prohibited
22
under this section.
23
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‘‘§ 152. Enforcement clause
1
‘‘(a) IN GENERAL.—An Act of Congress, Presidential
2
directive, adjudicative decision, rule, or regulation that
3
does not comply with section 151 shall have no force or
4
effect and no legal, equitable, regulatory, civil, or criminal
5
action may be brought under such an Act of Congress,
6
Presidential directive, adjudicative decision, rule, or regu-
7
lation.
8
‘‘(b) CAUSE OF ACTION.—Any person aggrieved by
9
any action of any officer or employee in the executive
10
branch of the Federal Government under any Act of Con-
11
gress that does not comply with section 151 may bring
12
a cause of action under sections 2201 and 2202 of title
13
28 against the United States to seek appropriate relief,
14
including an injunction against enforcement of any Act of
15
Congress, Presidential directive, adjudicative decision,
16
rule, or regulation that does not comply with section 151.
17
‘‘(c) STANDARD OF REVIEW.—In any action brought
18
under subsection (b), the standard of review shall be de
19
novo.
20
‘‘§ 153. Effective date
21
‘‘This chapter shall apply to any Act of Congress,
22
Presidential directive, adjudicative decision, rule, or regu-
23
lation, or change to an existing Presidential directive, ad-
24
judicative decision, rule, or regulation, enacted or promul-
25
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•S 329 IS
gated on or after the date that is 90 days after the date
1
of enactment of this chapter.’’.
2
(b) TECHNICAL AND CONFORMING AMENDMENT.—
3
The table of chapters for title 1, United States Code, is
4
amended by inserting after the item relating to chapter
5
2 the following:
6
‘‘2A. Separation of powers ...........................................................
151’’.
SEC. 5. SEVERABILITY CLAUSE.
7
If any provision of this Act or an amendment made
8
by this Act, or the application of a provision or amend-
9
ment to any person or circumstance, is held to be invalid
10
for any reason in any court of competent jurisdiction, the
11
remainder of this Act and amendments made by this Act,
12
and the application of the provisions and amendment to
13
any other person or circumstance, shall not be affected.
14
Æ
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