Write the Laws Act

II 116TH CONGRESS 2D SESSION S. 3904 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 JUNE 4, 2020 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. VerDate Sep 11 2014 23:08 Jun 24, 2020 Jkt 099200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6652 E:\BILLS\S3904.IS S3904 jbell on DSKJLSW7X2PROD with BILLS 2 •S 3904 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 VerDate Sep 11 2014 23:08 Jun 24, 2020 Jkt 099200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S3904.IS S3904 jbell on DSKJLSW7X2PROD with BILLS 3 •S 3904 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 VerDate Sep 11 2014 23:08 Jun 24, 2020 Jkt 099200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S3904.IS S3904 jbell on DSKJLSW7X2PROD with BILLS 4 •S 3904 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 VerDate Sep 11 2014 23:08 Jun 24, 2020 Jkt 099200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S3904.IS S3904 jbell on DSKJLSW7X2PROD with BILLS 5 •S 3904 IS (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 VerDate Sep 11 2014 23:08 Jun 24, 2020 Jkt 099200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S3904.IS S3904 jbell on DSKJLSW7X2PROD with BILLS 6 •S 3904 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 VerDate Sep 11 2014 23:08 Jun 24, 2020 Jkt 099200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S3904.IS S3904 jbell on DSKJLSW7X2PROD with BILLS 7 •S 3904 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. VerDate Sep 11 2014 23:08 Jun 24, 2020 Jkt 099200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6211 E:\BILLS\S3904.IS S3904 jbell on DSKJLSW7X2PROD with BILLS 8 •S 3904 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 VerDate Sep 11 2014 23:08 Jun 24, 2020 Jkt 099200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S3904.IS S3904 jbell on DSKJLSW7X2PROD with BILLS 9 •S 3904 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 VerDate Sep 11 2014 23:08 Jun 24, 2020 Jkt 099200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S3904.IS S3904 jbell on DSKJLSW7X2PROD with BILLS 10 •S 3904 IS ‘‘§ 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, change to an existing Presidential directive, adju- 24 dicative decision, rule, or regulation, enacted or promul- 25 VerDate Sep 11 2014 23:08 Jun 24, 2020 Jkt 099200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S3904.IS S3904 jbell on DSKJLSW7X2PROD with BILLS 11 •S 3904 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 VerDate Sep 11 2014 23:08 Jun 24, 2020 Jkt 099200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6301 E:\BILLS\S3904.IS S3904 jbell on DSKJLSW7X2PROD with BILLS