II. Congress Should Act Now to Restore the
Original Constitutional Plan for the Separation of Powers
III. H.R. 2655 Restores the Original
Constitutional Plan for the Separation of Powers
2655 - The Separation of Powers Restoration Act is designed to restore the separation
of powers between Congress and the president as set forth in
Articles I and II of the Constitution of the United States
of America by: (1) terminating all existing states of
national emergency and
removing from the executive branch any power to declare
national emergencies; (2) vesting power
in Congress alone to declare states of national emergency; (3)
restricting presidential power
to issue executive orders by denying to them any force of law
except as provided for by
Congress; and (4) repealing the 1973 War Powers Resolution.
Congress Should Act Now to Restore the Original
Constitutional Plan for the Separation of Powers
the heart of the Constitution of the United States of America is the separation
executive and judicial powers.
James Madison, the father of our constitution, wrote in
“there can be no liberty” when those powers are united in
one “person or body of magistrates.”
Supreme Court Justice Louis Brandeis echoed this view
in 1926 when he observed that separation of powers was written
into our constitution “to save the people from autocracy.”
Yet, throughout most of the 20th century, presidents
have usurped legislative power by means of unconstitutional
executive orders, presidential proclamations and undeclared
wars. For too
long, Congress has stood silent and, worse yet, aided and
abetted these usurpations through legislation granting broad
powers to the president.
Only by repealing those statutes and by placing express
limits on presidential power will such constitutional abuses
powers delegated to the national government by the
Constitution of the United States of America are distributed to exercises
powers properly belonging to another branch (e.g.,
if the president were to legislate), it
three separate branches of government: the legislative, the
executive and the judicial.
branches of government. Each
branch has unique and limited powers and each has a
duty to uphold and sustain the Constitution of the United
States of America. Whenever
a usurpation of the powers of that branch as established by
the Constitution of the United States of America.
separation of powers was of great concern to the founding
legislative and executive powers are united in the same
person, or body of magistrates.”
Madison, quoting Montesquieu, stated in Federalist 47, “There can be no liberty where
Court Justice Louis Brandeis
observed, “The doctrine of the separation of powers was
by the convention of 1787 not to promote efficiency but to
preclude the exercise of
power. The purpose was not to avoid friction, but, by means of
the inevitable friction
to the distribution of the governmental powers among three
departments, to save the
from autocracy.” Myers v. United States, 272 U.S. 52, 293
(1926) (Brandeis, J., dissenting)
in the 20th century, most presidents (beginning with Theodore
legislative authority using “presidential orders” —
executive orders, proclamations, etc.
Clinton has made usurpation of legislative power by executive
order an art form.
Clinton issued an executive order (later
struck down by the
courts) seeking to prohibit
federal contractors from hiring
replacements after Congress had repeatedly
considered and rejected related legislation.
Clinton also established a 1.7 million
acre national monument
in Utah (Grand Staircase-
by proclamation as legislation was
pending regarding the
future status of the affected
parcels of land.
Clinton has appropriated funds for pet
projects, such as the
American Heritage Rivers
which have not received appropriations from
Clinton has also conducted war against
the Federal Republic of
Yugoslavia without a
congressional declaration or even passage
concurrent resolution in support.
cannot be relied upon to defend the prerogatives of the
Congress – as it has struck
down only two executive orders in the history of the country
– one under President
and one under President Clinton.
founding fathers clearly expected that each branch of
government (including legislative
powers. The War Powers Resolution, the National Emergencies Act, and
Congress) would defend its prerogatives from encroachment by
the other branches, setting power
See e.g. Federalist 48 (Madison). Congress
has occasionally acted to protect it
Emergency Economic Powers Act, enacted in the 1970s, all
sought the restoration
the constitutional separation of powers.
Likewise, the Tenure of Office Act was enacted in the
in an effort to reduce the excessive presidential powers
assumed during the Civil War.
courts can and do resolve cases and controversies that arise
from a separation of
powers issue. However, under the “political question” doctrine, the
courts ordinarily do not
in disputes that are perceived as strictly between the
legislative and executive branch.
in recent cases the United States Supreme Court has virtually
closed the courtroom
door to members of Congress who seek to challenge
congressional delegations of
power to the president. Raines
v. Byrd, 521 U.S. 811 (1997)
(The Court found that individual
of Congress lacked standing to litigate the constitutionality
of the line item veto granted
Congress to the president.)
More, recently, in July 1999, the United States Court
the District of Columbia circuit affirmed the dismissal of a
law suit filed by four members of
the House of Representatives in which they sought a
declaratory judgment and an injunction
against President Clinton’s executive order establishing the
American Heritage Rivers Initiative
any authority from Congress.
Congress must act to protect its constitutional prerogatives.
upon the courts to protect the separation of powers principle.
2655 Restores the Original Constitutional Plan for the
Separation of Powers
H.R. 2655 restores the original constitutional plan for separation of
War Powers Resolution that has proved ineffective to check the
unilateral conduct of wars by the president.
It terminates all existing national emergencies and
brings to an end the twentieth century practice of
unconstitutional delegation of broad powers to the president
to declare such national emergencies, returning such powers to
Congress where they belong.
It restricts the power of the president to issue
executive orders, providing that such orders have the force of
law only as expressly declared by Congress.
It creates statutory rules governing the standing of
members of Congress and other aggrieved persons to litigate
separation of powers issues in the courts.
Finally, it legislatively defines the term
“presidential order”, thereby removing from the president
the power to determine the extent of executive powers under
Bill Section 3(a) - Repeal the War Powers Resolution
War Powers Resolution, enacted in 1973, requires the president
leaders when he is sending troops into combat or potential
combat where there is
declaration of war. Without
congressional action (i.e.,
a declaration of war, or an extension of
time American troops may continue to participate in combat),
the president must then
the troops within 60 days of his notification to Congress.
ineffectiveness of the War Powers Resolution has been exposed
during the Clinton
war in Kosovo. The
Congress did not declare war or extend the 60 days within
American troops could be used for combat, yet their
participation in combat continued.
members of Congress, led by Rep. Tom Campbell (R-CA), attempted to sue in the United
District Court for the District of Columbia to enforce the War
Powers Resolution, the
courts refused to hear the suit.
The War Powers Resolution has failed to constrain the
conduct of wars by the president, has been counter-productive,
and would be repealed by H.R. 2655.
Bill Section 3(b) - Termination of Presidential Declarations
of States of National Emergency
major source of presidential powers abused by presidents of
both parties has been the exercise of emergency powers in
with the inauguration of Franklin
in March 1933, the United States has been under a constant
state of national
— except for a brief 14-month period between September 14,
1978 and November
1979. The concept
of presidents having additional powers only in wartime has
been lost, and
enjoy almost all powers in peacetime as well.
In 1973, the Senate’s Special
on the Termination of the National Emergency, chaired by
Senators Frank Church
and Charles Mathias, Jr. (R-MD), determined that
470 provisions of federal law gave
powers to the executive branch when a national emergency had
been proclaimed. We
currently live under 13
states of national emergency.
If emergency powers are delegated, however unwisely,
would not technically constitute a usurpation of a legislative
has terminated the exercise of emergency powers pursuant to
emergencies in the past. The National Emergencies Act
terminated all such emergency
as of September 14, 1978.
However, Congress left the power to declare subsequent
of national emergency with the president — a power exercised
by President Jimmy Carter
November 14, 1979, after the seizure of the U.S. Embassy in
H.R. 2655, the powers and authorities possessed by the president,
or federal officers and employees that are derived from the
currently existing states of
emergency would once again be terminated.
However, learning from past mistakes, this
would vest the authority to declare future national
emergencies in Congress alone.
Bill Sections 4 & 5 - Limiting the Legal Force of
a presidential order is clearly authorized by the Constitution
of the United States of America or by statute, it has
force of law. Armstrong v. United States, 80 U.S. 154 (1871).
However, many presidential
lack such authority.
Order 10422, issued by President Harry Truman on
3, 1953, cited the United Nations’ charter as authority.
Executive Orders 12276-85,
by President Carter, and Executive Order 12294, issued by
President Ronald Reagan, were
based on executive agreements (i.e.,
unratified treaties) with
Iran. Commonly, presidential
are issued under the intentionally vague authority of titles and
responsibilities granted to the president, as when President
Truman issued Executive Order 10340 “by virtue of the
invested in [him] by the Constitution and laws of the United
States, and as President of
United States and commander in chief of the armed forces of the
United States.” Executive
10340 was challenged in court; the resulting decision,
Youngstown Sheet & Tube v.
343 U.S. 579 (1952), found there was no constitutional authority
for President Truman’s
2655 would require that each presidential order identify the
specific statutory or
provision that empowers the president to take the action
embodied in the
directive. The bill
further states that any presidential directive derived from
that does not identify that statutory authority is invalid.
HR 2655 would make it the
that any and all presidential orders lack the force of law and
are limited in their application
effect to the executive branch, unless the directive:
(1) constitutes a constitutionally-authorized
reprieve or pardon for an offense against the United States; (2)
constitutes an order
given to military personnel pursuant to duties specifically
related to actions taken as commander
in chief of the armed
forces; or, as discussed above, (3) cites the specific
enactment relied upon for the authority exercised in such order,
is issued pursuant to such
authority, is commensurate with the limit imposed by the plain
language of such authority, and is
not issued pursuant to a ratified or unratified treaty or
bilateral or multilateral agreement that
either violates the Ninth or Tenth
Amendments to the
Constitution of the United States of America or delegates power to a foreign
government or international body when no such delegating
authority exists under the
Constitution of the United
States of America.
this bill, any alleged basis for the presidential order must be
evident. Further, the
would define what is a constitutional power that may be
exercised by presidential order.
Bill Section 6 - Clarification of Standing to Challenge
noted above, the U.S. Supreme Court, in Raines v. Byrd, held
members of Congress have very limited access to the federal
courts where presidential actions
institutional injury to Congress.
One Supreme Court case found that a majority
must approve bringing the case for the members of Congress to
have standing. This
offers no protection to the rights of minorities.
H.R. 2655 seeks
to remove the
to access to the federal courts.
H.R. 2655 provides that
the following persons may bring an action in an
United States court to challenge the validity of any
presidential order that exceeds the
granted to the president by the relevant authorizing statute or
the Constitution of the United States of America:
U.S. House of Representatives, the U.S. Senate, any
and any representative, if the challenged
infringes on any power of Congress;
exceeds any power granted by a
does not state the statutory authority that
grants the president the power
claimed for the action taken in
highest governmental official of any state, commonwealth,
district, territory, or possession of the United States, or
political subdivision thereof, or the designee of such
if the challenged presidential directive infringes
on the powers
afforded to the states under the Constitution of the United States
person aggrieved in a liberty or property interest adversely
affected directly by the challenged presidential directive.
providing statutory rules determining standing, the courtroom
door can be opened to members 397
U.S. 150 (1970) and Sunstein, “Standing and the Privatization
of Public Law, 88 Columbia Law
of Congress and state and local officials pursuant to court
precedents applying comparable
e.g., Association of Data Processing Services Organizations v.
most presidential usurpations are not subject to judicial
redress due to the standing limitations established by the U.S.
Supreme Court. If
H.R. 2655 is enacted, the Supreme Court
at least be forced to re-examine its standing precedents, if not
to accede to the will of
Bill Section 7 - Defining Most Recent Presidential Orders
is no constitutional or statutory definition of
or any other form of presidential order.
The limited statutory requirements that do govern
orders, such as the requirement that executive orders and
proclamations be published
the Federal Register, are easily circumvented by changing the
nomenclature used. H.R.
remove that loophole.
2655 would provide a statutory definition of a presidential
presidential proclamation, or presidential directive; and any
other presidential or executive
action by whatever name described purporting to have normative
effect outside the executive
branch that is issued under the authority of the president or
any other officer or employee of
the executive branch.
we want our children and grandchildren to know and enjoy
liberty, we must make usurpation
of legislative power and the president’s power to make war
must be stopped.
certain that the constitutional separation of powers is given
full effect. The
2655 is an essential step in restoring our constitutional
Ron Paul Testimony Before a Judiciary Subcommittee
Orders and National Emergencies" by William J. Olson &