II 

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. 


sroberts on DSK5SPTVN1PROD with BILLS
2 

•S 3361 IS

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Write the Laws Act’’. 

5 SEC. 2. CONSTITUTIONAL AUTHORITY STATEMENT. 

6 (a) IN GENERAL.—This Act is enacted pursuant to 

7 the powers conferred by the Constitution of the United 

8 States upon Congress by— 

9 (1) article I, section 1, which vests in Congress 

10 all legislative powers granted under the Constitution; 

11 and 

12 (2) article I, section 8, clause 18, which vests 

13 in Congress the power to make all laws that shall be 

14 necessary and proper for executing the legislative 

15 power granted to Congress in the Constitution. 

16 (b) OTHER AUTHORITY.—This Act is also enacted to 

17 bring the enforcement of Federal law into compliance with 

18 the guarantee under the Fifth Amendment to the Con19 stitution of the United States that no person be deprived 

20 of life, liberty, or property without due process of law. 

21 SEC. 3. FINDINGS. 

22 Congress finds the following: 

23 (1) Article I, section 1 of the Constitution of 

24 the United States vests the legislative powers enu25 merated therein in Congress, consisting of a Senate 


sroberts on DSK5SPTVN1PROD with BILLS
3 

•S 3361 IS

1 and a House of Representatives, subject only to the 

2 veto power of the President as provided in article I, 

3 section 7, clause 2. 

4 (2) Article II, section 1 of the Constitution of 

5 the United States vests the executive power of the 

6 United States in a President. 

7 (3) Article III, section 1 of the Constitution of 

8 the United States vests the judicial power of the 

9 United States in ‘‘one supreme Court, and in such 

10 inferior courts as the Congress may from time to 

11 time ordain and establish’’, subject only to the juris12 dictional limitations set forth in article III, section 

13 2. 

14 (4) As the Supreme Court of the United States 

15 has stated, ‘‘In the main, [the Constitution of the 

16 United States] has blocked out with singular preci17 sion, and in bold lines, in its three primary Articles, 

18 the allotment of power to the executive, the legisla19 tive, and judicial departments of the government 

20 [and] the powers confided by the Constitution to one 

21 of these departments cannot be exercised by an22 other.’’. Kilbourn v. Thompson, 103 U.S. 168, 191 

23 (1881). 

24 (5) ‘‘It is . . . essential to the successful work25 ing of this system, that the persons entrusted with 


sroberts on DSK5SPTVN1PROD with BILLS
4 

•S 3361 IS

1 power in any one of these branches shall not be per2 mitted to encroach upon the powers confided to oth3 ers, but that each shall by the law of its creation be 

4 limited to the exercise of the powers . . . of its own 

5 department and no other.’’. Id. 

6 (6) ‘‘The increase in the number of States, in 

7 their population and wealth, and in the amount of 

8 power . . . [has] present[ed] powerful and growing 

9 temptations to those to whom that exercise is 

10 intrusted, to overstep the just boundaries of their 

11 own department, and enter upon the domain of one 

12 of the others, or to assume powers not intrusted to 

13 either of them.’’. Kilbourn v. Thompson, 103 U.S. 

14 168, 191–192 (1881). 

15 (7) Succumbing to these ‘‘powerful and grow16 ing’’ temptations, and beginning in the late nine17 teenth century with the Interstate Commerce Com18 mission and continuing to the present time, Con19 gress has unconstitutionally created numerous ad20 ministrative agencies with blended powers, namely— 

21 (A) the exercise of legislative power vested 

22 by the Constitution of the United States in 

23 Congress; 


sroberts on DSK5SPTVN1PROD with BILLS
5 

•S 3361 IS

1 (B) the exercise of executive power vested 

2 by the Constitution of the United States in the 

3 President; and 

4 (C) the exercise of judicial power vested by 

5 the Constitution of the United States in the Su6 preme Court and lower Federal courts. 

7 (8) By delegating legislative, executive, and ju8 dicial power to the various administrative agencies, 

9 Congress has departed from the separation of pow10 ers structure of the Constitution of the United 

11 States, and ignored the warning of the framers of 

12 that instrument that ‘‘The accumulation of all pow13 ers, legislative, executive, and judiciary, in the same 

14 hands, whether of one, a few, or many, and whether 

15 hereditary, self-appointed, or elective, may justly be 

16 pronounced the very definition of tyranny.’’. James 

17 Madison, The Federalist No. 47. 

18 (9) Further, by delegating legislative, executive, 

19 and judicial powers to various administrative agen20 cies, Congress has unconstitutionally established a 

21 Star Chamber-like system of rules promulgated, exe22 cuted, and adjudicated by administrative agencies 

23 that are functionally a part of the executive branch 

24 of the Federal Government in violation of the due 


sroberts on DSK5SPTVN1PROD with BILLS
6 

•S 3361 IS

1 process guarantee of the Fifth Amendment to the 

2 Constitution of the United States. 

3 (10) By the very nature of legislative power, 

4 and by the express terms of article I, section 1 of 

5 the Constitution of the United States, Congress may 

6 not delegate any legislative power to any other 

7 branch of the Federal Government or other entity, 

8 including any administrative agency. As Chief Jus9 tice John Marshall stated: ‘‘It will not be contended 

10 that congress can delegate to the courts, or to any 

11 other tribunals, powers which are strictly and exclu12 sively legislative.’’. Wayman v. Southard, 10 Wheat. 

13 (23 U.S.) 1, 42 (1825). 

14 (11) As Chief Justice Melville Fuller explained, 

15 a ‘‘criminal offense’’ created or clarified by an agen16 cy in the executive branch is not valid unless the of17 fense ‘‘is fully and completely defined by the act’’ of 

18 Congress. In re Kollock, 165 U.S. 526, 533 (1897). 

19 (12) By vesting legislative power in the Con20 gress, the Constitution requires the Senate and the 

21 House of Representatives to enact statutes con22 taining general rules to be executed by the Presi23 dent, as provided in article II, section 1 of the Con24 stitution of the United States, and to be adjudicated 

25 in a case or controversy by such inferior courts as 


sroberts on DSK5SPTVN1PROD with BILLS
7 

•S 3361 IS

1 Congress may from time to time establish, or in the 

2 Supreme Court, as provided in article III, sections 

3 1 and 2. 

4 (13) By abdicating its constitutional legislative 

5 responsibility to write the laws whereby the people 

6 are governed, and having unconstitutionally dele7 gated that power to unelected bureaucrats, Congress 

8 has undermined the constitutional protections of— 

9 (A) the checks and balances of a bicameral 

10 legislative body; and 

11 (B) of a presidential veto. 

12 (14) As a direct consequence of Congress hav13 ing abdicated its responsibility to properly exercise 

14 the legislative power vested by the Constitution of 

15 the United States, Congress has— 

16 (A) imposed onerous and unreasonable 

17 burdens upon the American people; and 

18 (B) violated the constitutional principle of 

19 the separation of the legislative, executive, and 

20 judicial processes and functions. 

21 SEC. 4. RESTORING THE SEPARATION OF POWERS. 

22 (a) IN GENERAL.—Title 1 of the United States Code 

23 is amended by inserting after chapter 2 the following: 

24 ‘‘CHAPTER 2A—SEPARATION OF POWERS 

‘‘Sec. 

‘‘151. Nondelegation of legislative power. 


sroberts on DSK5SPTVN1PROD with BILLS
8 

•S 3361 IS

‘‘152. Enforcement clause. 

‘‘153. Applicability. 

1 ‘‘§ 151. Nondelegation of legislative power 

2 ‘‘(a) DEFINITION.—In this section, the term ‘delega3 tion of legislative powers’— 

4 ‘‘(1) includes— 

5 ‘‘(A) the creation or clarification of any 

6 criminal or civil offense; and 

7 ‘‘(B) the creation or clarification of any 

8 non-criminal regulation, prohibition or limita9 tion applicable to the public, or some subset 

10 thereof, that is not fully and completely defined 

11 in an Act of Congress, except that the Execu12 tive Branch of government may be delegated 

13 authority to make factual findings that will de14 termine the date upon which such an Act is im15 plemented, suspended, or revived; and 

16 ‘‘(2) does not include the issuance of any presi17 dential proclamation, or the issuance of any rule or 

18 regulation governing the internal operation of any 

19 agency, or conditions made upon grants or contracts 

20 issued by any agency. 

21 ‘‘(b) PROHIBITION.—An Act of Congress may not 

22 contain any delegation of legislative powers, whether to— 

23 ‘‘(1) any component within the legislative 

24 branch of the Federal Government; 


sroberts on DSK5SPTVN1PROD with BILLS
9 

•S 3361 IS

1 ‘‘(2) the President or any other member of the 

2 executive branch of the Federal Government; 

3 ‘‘(3) the judicial branch of the Federal Govern4 ment; 

5 ‘‘(4) any agency; 

6 ‘‘(5) any quasi-public agency; 

7 ‘‘(6) any State or instrumentality thereof; or 

8 ‘‘(7) any other organization or individual. 

9 ‘‘(c) EXECUTIVE ACTIONS.—No new presidential di10 rective, adjudicative decision, rule, or regulation, or 

11 change to an existing presidential directive, adjudicative 

12 decision, rule, or regulation governing, limiting, imposing 

13 a penalty on, or otherwise regulating any activity of any 

14 individual or entity, other than an officer or employee of 

15 the Federal Government, may be promulgated or put into 

16 effect, unless the directive, decision, rule or regulation is 

17 authorized by an Act of Congress that complies with sub18 section (b). 

19 ‘‘(d) REPORT.—Not later than 6 months after the 

20 date of enactment of this chapter, the Comptroller General 

21 of the United States shall submit to Congress a report 

22 identifying all statutes enacted before the date that is 90 

23 days after the date of enactment of this chapter which 

24 contain any delegation of legislative powers prohibited 

25 under this section. 


sroberts on DSK5SPTVN1PROD with BILLS
10 

•S 3361 IS

1 ‘‘§ 152. Enforcement clause 

2 ‘‘(a) IN GENERAL.—An Act of Congress, presidential 

3 directive, adjudicative decision, rule, or regulation that 

4 does not comply with section 151 shall have no force or 

5 effect and no legal, equitable, regulatory, civil, or criminal 

6 action may be brought under such an Act of Congress, 

7 presidential directive, adjudicative decision, rule, or regu8 lation. 

9 ‘‘(b) CAUSE OF ACTION.—Any person aggrieved by 

10 any action of any officer or employee in the executive 

11 branch of the Federal Government under any Act of Con12 gress that does not comply with section 151 may bring 

13 a cause of action under sections 2201 and 2202 of title 

14 28 against the United States to seek appropriate relief, 

15 including an injunction against enforcement of any Act of 

16 Congress, presidential directive, adjudicative decision, 

17 rule, or regulation that does not comply with section 151. 

18 ‘‘(c) STANDARD OF REVIEW.—In any action brought 

19 under subsection (b), the standard of review shall be de 

20 novo. 

21 ‘‘§ 153. Effective date 

22 ‘‘This chapter shall apply to any Act of Congress, 

23 presidential directive, adjudicative decision, rule, or regu24 lation, change to an existing presidential directive, adju25 dicative decision, rule, or regulation, enacted or promulVerDate Mar 15 2010 21:09 Jul 05, 2012 Jkt 019200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S3361.IS S3361

sroberts on DSK5SPTVN1PROD with BILLS
11 

•S 3361 IS

1 gated on or after the date that is 90 days after the date 

2 of enactment of this chapter.’’. 

3 (b) TECHNICAL AND CONFORMING AMENDMENT.— 

4 The table of chapters for title 1, United States Code, is 

5 amended by inserting after the item relating to chapter 

6 2 the following: 

‘‘2A. Separation of powers ........................................................................ 151’’. 

7 SEC. 5. SEVERABILITY CLAUSE. 

8 If any provision of this Act or an amendment made 

9 by this Act, or the application of a provision or amend10 ment to any person or circumstance, is held to be invalid 

11 for any reason in any court of competent jurisdiction, the 

12 remainder of this Act and amendments made by this Act, 

13 and the application of the provisions and amendment to 

14 any other person or circumstance, shall not be affected. 

Æ 


sroberts on DSK5SPTVN1PROD with BILLS