II

106TH CONGRESS

1ST SESSION S. 1795

To require that before issuing an order, the President shall cite the authority

for the order, conduct a cost benefit analysis, provide for public comment,

and for other purposes.

IN THE SENATE OF THE UNITED STATES

OCTOBER 26, 1999

Mr. CRAPO introduced the following bill; which was read twice and referred

to the Committee on Governmental Affairs

A BILL

To require that before issuing an order, the President shall

cite the authority for the order, conduct a cost benefit

analysis, provide for public comment, and for other purposes.

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

3 SECTION 1. REQUIREMENTS BEFORE THE PRESIDENT MAY

4 ISSUE AN ORDER.

5 (a) DEFINITIONS.—In this Act, the term—

6 (1) ‘‘benefit’’ means the reasonably identifiable

7 significant favorable effects, quantifiable and non8 quantifiable, including social, health, safety, environ-
2

•S 1795 IS

1 mental, economic, and distributional effects, that are

2 expected to result from implementation of, or com3 pliance with, an order;

4 (2) ‘‘cost’’ means the reasonably identifiable

5 significant adverse effects, quantifiable and non6 quantifiable, including social, health, safety, environ7 mental, economic, and distributional effects, that are

8 expected to result from implementation of, or com9 pliance with, an order;

10 (3) ‘‘cost benefit analysis’’ means an evaluation

11 of the costs and benefits of an order, quantified to

12 the extent feasible and appropriate and otherwise

13 qualitatively described, that is prepared at the level

14 of detail appropriate and practicable for reasoned

15 decisionmaking on the matter involved, taking into

16 consideration uncertainties, the significance and

17 complexity of the decision, and the need to ade18 quately inform the public; and

19 (4) ‘‘order’’ means any Executive order, procla20 mation, or other written directive that—

21 (A) is issued by the President; and

22 (B) subject to subsection (b)(1)—

23 (i) is not based solely on an authority

24 under article II of the United States Con25 stitution; and
3

•S 1795 IS

1 (ii) is based on a statutory authority.

2 (b) AUTHORITY FOR ORDERS.—

3 (1) ORDERS.—Subsection (a)(4)(B) shall not

4 apply with respect to the term ‘‘order’’ as used in

5 this subsection.

6 (2) AUTHORITY.—The President may only issue

7 an order if such order is authorized under a provi8 sion of the United States Constitution or expressly

9 authorized by statute.

10 (c) REQUIREMENTS.—Subject to subsection (d), be11 fore issuing an order, the President shall—

12 (1) cite in the order all constitutional and stat13 utory provisions that authorize the order;

14 (2) conduct a cost benefit analysis of the order;

15 (3) publish the order and the cost benefit anal16 ysis of the order in the Federal Register; and

17 (4) provide for a period of no less than 30 days

18 after the publication under paragraph (3), for public

19 comment before the order takes effect.

20 (d) ORDERS WITH CLASSIFIED INFORMATION.—

21 (1) INAPPLICABILITY.—Subsection (c) (3) and

22 (4) shall not apply to an order that includes classi23 fied information.

24 (2) REQUIREMENT.—Before issuing an order

25 that includes classified information, the President
4

•S 1795 IS

1 shall submit a copy of the order to the President pro

2 tempore of the Senate and the Speaker of the House

3 of Representatives no less than 30 days before the

4 order takes effect.

5 (e) EFFECT OF NONCOMPLIANCE.—Any order that

6 is not in compliance with this section shall have no force

7 and effect.

8 (f) APPLICATION TO PRIOR ORDERS.—An order in

9 effect before the effective date of this Act shall have no

10 force and effect on and after the date that occurs 1 year

11 after such effective date, unless the President reissues

12 such order in compliance with subsections (c) and (d).

13 (g) JUDICIAL REVIEW.—

14 (1) JURISDICTION OF DISTRICT COURTS.—The

15 district courts of the United States shall have juris16 diction of any civil action arising under this Act.

17 (2) STANDING.—The following persons may

18 bring a civil action in an appropriate district court

19 of the United States to challenge an order that is

20 not in compliance with this Act:

21 (A) CONGRESS AND MEMBERS OF CON22 GRESS.—The Senate, the House of Representa23 tives, any Senator, and any Representative to

24 the House of Representatives.
5

•S 1795 IS

1 (B) STATE AND LOCAL GOVERNMENTS.—

2 The highest governmental official of any State,

3 commonwealth, district, territory, or possession

4 of the United States, or any political subdivi5 sion thereof, or the designee of such person.

6 (C) AGGRIEVED PERSONS.—Any person

7 aggrieved in a liberty or property interest ad8 versely affected directly by an order that is not

9 in compliance with this Act.

10 (3) APPEAL AND EXPEDITED REVIEW.—

11 (A) APPEAL TO SUPREME COURT.—An ap12 peal may be taken directly to the Supreme

13 Court of the United States from any interlocu14 tory or final judgment, decree, or order of a

15 district court in any civil action that the court

16 exercised jurisdiction under paragraph (1).

17 (B) EXPEDITED REVIEW.—The Supreme

18 Court shall, if it has not previously ruled on the

19 question, accept jurisdiction over the appeal re20 ferred to under subparagraph (A), advance the

21 appeal on the docket, and expedite the appeal

22 to the greatest extent possible.

23 (h) EFFECTIVE DATE.—This Act shall take effect 60

24 days after the date of enactment of this Act.

Æ