Separation of Powers Restoration Act
Bill: H.R.4317 | Sponsor: Rep. Gosar, Paul A. (R-AZ)
Policy area: International Affairs

Summary:
Separation of Powers Restoration Act
This bill restricts the scope of presidential orders. A presidential order means any executive order, presidential proclamation, or presidential directive, as well as any other presidential or executive action issued under the authority of the President or other federal officer or employee that purports to effect standards and norms outside of the executive branch.
Specifically, the bill limits the application of a presidential order to the executive branch unless the order is issued pursuant to certain presidential powers under the Constitution or statutory authority. The bill further specifies that the President may not issue an order under a ratified or unratified treaty (or bilateral or multilateral agreement) if the treaty (1) violates constitutional protections for rights retained by the people or powers reserved to the states, or (2) delegates power to a foreign government or international body absent constitutional authority. When issuing a presidential order, the President must cite to the applicable constitutional or statutory authority.
A presidential order without this citation is invalid. Members of Congress, nonfederal government officials, and aggrieved persons may challenge an order's validity on the basis that it exceeds the President's constitutional or statutory authority.
The bill also repeals the War Powers Resolution (a joint resolution that outlines procedures for Congress and the President to participate in decisions to send Armed Forces into hostilities) and terminates emergency authorities available to the President and other federal officers and employees for responding to a declared national emergency.

To restore the separation of powers between the Congress and the 
                               President.

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

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Separation of Powers Restoration 
Act''.

SEC. 2. FINDINGS.

     Congress finds the following:
            (1) As a limit on governmental power, Constitutional 
        framers vested Federal powers in three coequal branches of 
        government, each with unique and limited powers and each with a 
        coequal duty to uphold and sustain the Constitution of the 
        United States.
            (2) A Supreme Court justice stated, ``The doctrine of the 
        separation of 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).
            (3) James Madison, quoting Montesquieu, 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.''.
            (4) Article I of the Constitution provides, ``All 
        legislative powers herein granted shall be vested in a Congress 
        of the United States.''.
            (5) A congressional committee print has noted that, 
        ``[b]ecause the President has no power or authority over 
        individual citizens and their rights except where he is granted 
        such power and authority by a provision in the Constitution or 
        by statute, the President's proclamations are not legally 
        binding and are at best hortatory unless based on such grants 
        of authority.'' 85th Cong., 1st Sess., Executive Orders and 
        Proclamations: A Study of a Use of Presidential Powers (Comm. 
        Print 1957).
            (6) The Supreme Court has stated that, even if Presidents 
        have, without congressional authority, taken actions only the 
        Congress may take, ``Congress has not thereby lost its 
        exclusive constitutional authority to make laws necessary and 
        proper to carry out the powers vested by the Constitution `in 
        the Government of the United States, or any Department of 
        Officer thereof.'''. (Youngstown Sheet & Tube Co. v. Sawyer, 
        343 U.S. 579 (1952)).
            (7) Treaties or Executive Agreements which purport to 
        assign powers not amongst those specifically granted to the 
        Federal Government by the Constitution are non-binding and 
        cannot constitute law.

SEC. 3. SEPARATION OF POWERS RESTORING RESCISSIONS.

    (a) Repeal of War Powers Resolution.--The War Powers Resolution (50 
U.S.C. 1541 et seq.) is repealed.
    (b) Termination of States of Emergency.--
            (1) In general.--All powers and authorities possessed by 
        the President, any other officer or employee of the Federal 
        Government, or any executive agency (as defined in section 105 
        of title 5) as a result of the existence of any declaration of 
        national emergency in effect on the date of enactment of this 
        Act are terminated 90 days after such date. Such termination 
        shall not affect--
                    (A) any action taken or proceeding pending not 
                finally concluded or determined on such date;
                    (B) any action or proceeding based on any act 
                committed prior to such date; or
                    (C) any rights or duties that matured or penalties 
                that were incurred prior to such date.
            (2) Definition.--For the purpose of this subsection, the 
        term ``national emergency'' means a general declaration of 
        emergency made by the President or any other officer or 
        employee of the executive branch.
    (c) Termination of Authority To Declare Emergency.--To the extent 
that any Act of Congress in effect on the date of enactment of this Act 
grants to the President or any other officer or employee of the 
executive branch the power to declare a national emergency, such power 
is hereby divested to the Congress alone.

SEC. 4. REQUIREMENT OF STATEMENT OF AUTHORITY FOR PRESIDENTIAL ORDERS.

    (a) Statement of Authority.--The President shall include with each 
Presidential order a statement of the specific statutory or 
constitutional provision which in fact grants the President the 
authority claimed for such action.
    (b) Invalidity of Nonconforming Orders.--A Presidential order which 
does not include the statement required by subsection (a) is invalid, 
to the extent such Presidential order is issued under authority granted 
by a congressional enactment.

SEC. 5. EFFECT OF PRESIDENTIAL ORDERS.

    (a) Limited Effect of Presidential Orders.--A Presidential order 
neither constitutes nor has the force of law and is limited in its 
application and effect to the executive branch.
    (b) Exceptions.--Subsection (a) does not apply to--
            (1) a reprieve or pardon for an offense against the United 
        States, except in cases of impeachment;
            (2) an order given to military personnel pursuant to duties 
        specifically related to actions taken as Commander in Chief of 
        the Armed Forces; or
            (3) a Presidential order citing the specific congressional 
        enactment relied upon for the authority exercised in such order 
        and--
                    (A) issued pursuant to such authority;
                    (B) commensurate with the limit imposed by the 
                plain language of such authority; and
                    (C) not issued pursuant to a ratified or unratified 
                treaty or bilateral or multilateral agreement which--
                            (i) violates the ninth or tenth amendments 
                        to the Constitution; or
                            (ii) makes a delegation of power to a 
                        foreign government or international body when 
                        no such delegating authority exists under the 
                        Constitution.

SEC. 6. STANDING TO CHALLENGE PRESIDENTIAL ORDERS WHICH IMPACT 
              SEPARATION OF POWERS INTEGRITY.

     The following persons may bring an action in an appropriate United 
States court to challenge the validity of any Presidential order which 
exceeds the power granted to the President by the relevant authorizing 
statute or the Constitution:
            (1) Congress and its members.--The House of 
        Representatives, the Senate, any Senator, and any 
        Representative to the House of Representatives, if the 
        challenged Presidential order--
                    (A) infringes on any power of Congress;
                    (B) exceeds any power granted by a congressional 
                enactment; or
                    (C) violates section 4 because it does not state 
                the statutory authority which in fact grants the 
                President the power claimed for the action taken in 
                such Presidential order.
            (2) State and local governments.--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 order infringes on the powers afforded to the 
        States under the Constitution.
            (3) Aggrieved persons.--Any person aggrieved in a liberty 
        or property interest adversely affected directly by the 
        challenged Presidential order.

SEC. 7. DEFINITION OF PRESIDENTIAL ORDER.

     In this Act, the term ``Presidential order'' means--
            (1) any Executive order, Presidential proclamation, or 
        Presidential directive; and
            (2) any other Presidential or Executive action by whatever 
        name described purporting to have normative effect outside the 
        executive branch which is issued under the authority of the 
        President or any other officer or employee of the executive 
        branch.
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