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S. 1795 - The Executive Orders Limitation Act

Analysis Based Upon the
Constitutional Analysis of H.R. 2655
by William J. Olson, Attorney at Law


I.    Introduction

II.   Congress Should Act Now to Restore the Original Constitutional Plan for Separation of Powers

III.  S. 1795 Restores, in Part, the Original Constitutional Plan for Separation of Powers

IV.  Conclusion

I. Introduction

S. 1795 is designed to restore, in part, the separation of powers between Congress and the president as set forth in Article I and Article II of the Constitution of the United States of America by: (1) Requiring the president to cite authority for the order; (2) Requiring cost-benefit analysis for orders promulgated; (3) Requiring a 30-day period for public comment; (4) Denying the force of law to non-compliant orders; (5) Granting federal court standing and expedited review for members of Congress, state governments and aggrieved person subject to non-compliant orders.

II. Congress Should Act Now to Restore the Original Constitutional Plan for Separation of Powers

At the heart of the Constitution of the United States of America is the separation of legislative, executive and judicial powers. James Madison, the father of our constitution, wrote in Federalist 47, "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 by stopped.

The powers delegated to the national government by our constitution are distributed to three separate branches of government: the legislative, the executive and the judicial. These are co-equal branches of government. Each branch has unique and limited powers and each has a co-equal duty to uphold and sustain the Constitution of the United States of America.

Whenever one branch exercises powers properly belonging to another branch (e.g., if the president was to legislate) it constitutes a usurpation of the powers of that branch as established by our constitution.

This separation of powers was of great concern to our country’s founding fathers. For example, James Madison, quoting Montesquie, stated in Federalist 47, "There can be no liberty where the legislative and executive powers are united in the same person, or body of magistrates." Supreme Court Justice Louis Brandeis observed, "The doctrine of the separation powers was adopted by the convention of 1787 not to promote efficiency but to preclude the exercise of arbitrary power. The purpose was not to avoid friction, but, by means of the inevitable friction incident to the distribution of the governmental powers among three departments, to save the people from autocracy." Myers v. United States, 272 U.S. 52, 293 (1926) (Brandeis, J., dissenting)

However, in the 20th century, most American presidents (beginning with Theodore Roosevelt) have usurped legislative authority using "presidential orders" – executive orders, proclamations, etc.  President Clinton has made usurpation of legislative power by executive order an art form.

President Clinton issued an executive order (later struck down by the courts) seeking to prohibit federal contractors from hiring permanent striker replacements after Congress had repeatedly considered and rejected related legislation.

President Clinton also established a 1.7 million acre national monument in Utah (Grand Staircase-Escalante) by proclamation as legislation was pending regarding the future status of the affected parcels of land.

President Clinton has appropriated funds for pet projects, such as the American Heritage Rivers Initiative, which have not received appropriations from Congress.

The judiciary cannot be solely 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 Truman and one under President Clinton.

Our country’s founding fathers clearly expected that each branch of government (including Congress) would defend its prerogatives from encroachment by the other branches, setting power against power. See, e.g., Federalist 48 (Madison). Congress has occasionally acted to protect its legislative powers. The War Powers Resolution, the National Emergencies Act, and the International Emergency Economic Powers Act, enacted in the 1970s, all sought the restoration of the constitutional separation of powers. Likewise, the Tenure of Office Act was enacted in the 1860s in an effort to reduce the excessive presidential powers assumed during the Civil War.

The 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 intervene in disputes that are perceived as strictly between the legislative and executive branch.

Moreover, 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 members of Congress lacked standing to litigate the constitutionality of the line item veto granted by Congress to the president.)  More recently, in July 1999, the United States Court of Appeals for the District of Columbia Circuit affirmed the dismissal of a lawsuit filed by four members of the U.S. 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 without any authority from Congress.  Thus, Congress must act to protect its constitutional prerogatives.  Congress cannot depend upon the courts to protect the separation of powers principle.

III.  S. 1795 Restores, in Part, the Original Constitutional Plan for Separation of Powers

S. 1795 restores, in part, the original constitutional plan for separation of powers.  First, it legislatively defines the term "presidential order", thereby removing from the president the power to determine the extent of executive powers under our constitution.  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.

A.  Bill Section 1(a) Defines the Term Executive Order

S. 1795 defines the term executive order or proclamation as those issued by the president not based solely on Article II authority but rather some statutory authority. 

Currently, there is no constitutional or statutory definition of "proclamation," or "executive order," or any other form of presidential order.  The limited statutory requirements that do govern presidential orders, such as the requirement that executive orders and proclamations be published in the Federal Register, are easily circumvented by changing the nomenclature used. S.1795 would remove that loophole.

S. 1795 would provide a statutory definition of a presidential directive: any executive order, 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.

B. Bill Section 1(b)(c)(d) – Imposition of Restrictions on Executive Orders

S.1795 authorizes the president to issue an order only if such order is authorized under a provision of the Constitution of the United States of America or expressly authorized by statute.

S. 1795 also requires the president, before issuing an order, to: (1) cite all constitutional and statutory provisions that authorize the order; (2) conduct and publish in the Federal Register a cost benefit analysis of the order; (3) provide no less than 30 days after publication for public comment before the order takes effect; and (4) sets forth special requirements respecting orders that include classified information.

C. Bill Sections 1(e)(f) – Limiting the Legal Force of Presidential Order - Noncompliance

S. 1795 states that any order that is not compliance with this act shall have no force and effect and provides that an order in effect before this act's effective date shall have no force or effect one year after such effective date unless the president reissues such order in compliance with the requirements of this act.

Where a presidential order is clearly authorized by our constitution or by statute, it has the force of law.  Armstrong v. United States, 80 U.S. 154 (1871). However, many presidential orders lack such authority.  Executive Order 10422, issued by President Harry Truman on January 3, 1953, cited the United Nations’ charter as authority.  Executive Orders 12276‑85, issued 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 orders 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 authority invested in [him] by the Constitution and laws of the United States."  Executive Order 10340 was challenged in court; the resulting decision, Youngstown Sheet & Tube v. Sawyer, 343 U.S. 579 (1952), found there was no constitutional authority for President Truman’s action.

S. 1795 would require that each presidential order identify the specific statutory or constitutional provision that empowers the president to take the action embodied in the presidential directive.  The bill further states that any presidential directive derived from statutory authority that does not identify that statutory authority has no effect of law.  Express powers granted under Article II of the Constitution of the United States of America are left intact and include:  (1) a constitutionally authorized reprieve or pardon for an offense against the United States; and (2) an order given to military personnel pursuant to duties specifically related to actions taken as commander in chief of the armed forces. Under this bill, any alleged basis for the presidential order must be evident. Further, the bill would define what is a constitutional power that may be exercised by presidential order.

D.  Bill Section 1(g)(2) – Clarification of Standing to Challenge Executive Actions

As noted above, the U.S. Supreme Court, in Raines v. Byrd, held that individual members of Congress have very limited access to the federal courts where presidential actions cause institutional injury to Congress.  One Supreme Court case found that a majority of legislators must approve bringing the case for the members of Congress to have standing.  This requirement offers no protection to the rights of minorities.  S. 1795 seeks to remove the barriers to access to the federal courts.  Specifically, S. 1795 provides that the following persons may bring an action in an appropriate United States court to challenge the validity of any presidential order that exceeds the power granted to the president by the relevant authorizing statute or the Constitution of the United States of America:

     The U.S. House of Representatives, the U.S. Senate, any senator, 
     and any representative, if the challenged presidential directive

1. infringes on any power of Congress;

            2. exceeds any power granted by a congressional enactment;

            3. does not state the statutory authority that in fact grants the president 
            the power claimed for the action taken in such presidential order.

     The highest governmental official of any state, commonwealth, district,  
     territory, or possession of the United States, or any political subdivision
     thereof, or the designee of such person, if the challenged presidential
     directive infringes on the powers afforded to the states under the  
Constitution of the United States of America.

     Any person aggrieved in a liberty or property interest adversely affected 
     directly by the challenged presidential directive.

By providing statutory rules determining standing, the courtroom door can be opened to members of Congress and state and local officials pursuant to court precedents applying comparable statutory provisions.  See, e.g., Association of Data Processing Services Organizations v. Camp, 397 U.S. 150 (1970) and Sunstein, "Standing and the Privatization of Public Law," 88 Columbia Law Review 1432 (1988).  Currently, most presidential usurpations are not subject to judicial redress due to the standing limitations established by the U.S. Supreme Court.  If S. 1795 is enacted, the court will at least be forced to re-examine its standing precedents, if not to accede to the will of Congress.

E.  Bill section 1(g)(3) - Appeal and Expedited Review

S. 1795 provides additional judicial protections for those aggrieved by “illegitimate” executive orders as it expressly allows for an appeal to be taken directly to the Supreme Court of the United States from any interlocutory or final judgment, decree, or order of a district court in any civil action that the court exercised jurisdiction.  Moreover, if the Supreme Court not previously ruled on the question, is required under this bill to accept jurisdiction over the appeal referred to under subparagraph (A), advance the appeal on the docket, and expedite the appeal to the greatest extent possible.

IV. Conclusion

If we want our children and grandchildren to know and enjoy liberty, we must make certain that the constitutional separation of powers is given full effect. The president’s usurpation of legislative power and the president’s power to make war must be stopped. S. 1795 is an essential step in restoring our constitutional government.

Senator Mike Crapo Press Release

Senator Mike Crapo Floor Statement

"Executive Orders and National Emergencies" by William J. Olson & Alan Woll



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