Section 1 Short title
This Act may be cited as the “Write the Laws Act”.
Write the Laws Act
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 United States Constitution, 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 United States Constitution.
Sec. 2 Findings
Article I, section 1 of the United States Constitution vests the legislative powers enumerated therein in the United States Congress, consisting of a Senate and a House of Representatives, subject only to the veto power of the President as provided in article I, section 7, clause 2.
Article II, section 1 of the United States Constitution vests the executive power of the United States in a President of the United States, except as enumerated in article II, section 2.
Article III, section 1 of the United States Constitution vests the judicial power of the United States in “one supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish,” subject only to the jurisdictional limitations set forth in article III, section 2.
“In the main, [the United States Constitution] has blocked out with singular precision, and in bold lines, in its three primary Articles, the allotment of power to the executive, the legislative, and judicial departments of the government [and] the powers confided by the Constitution to one of these departments cannot be exercised by another.” Kilbourn v. Thompson, 103 U.S. 168, 191 (1881).
“It is … essential to the successful working of this system, that the persons entrusted with power in any of these branches shall not be permitted to encroach upon the powers confided to others, but that each shall by the law of its creation be limited to the exercise of the powers of its own department and no other.” Kilbourn v. Thompson, 103 U.S. 168, 191 (1881).
“The increase in the number of States, in their population and wealth, and in the amount of power … [has] present[ed] powerful and growing temptations to those to whom that exercise is intrusted, to overstep the just boundaries of their own department, and enter upon the domain of one of the others, or to assume powers not intrusted to either of them.” Kilbourn v. Thompson, 103 U.S. 168, 191–192 (1881).
Succumbing to these “powerful and growing” temptations, and beginning in the late nineteenth century with the Interstate Commerce Commission and continuing to the present time, Congress has unconstitutionally created numerous administrative agencies with blended powers, namely, (i) the exercise of legislative power vested by the Constitution in Congress, (ii) the exercise of executive power vested by the Constitution in the President and (iii) the exercise of judicial power vested by the Constitution in the Supreme Court and lower Federal courts.
By delegating legislative, executive and judicial power to the various administrative agencies, Congress has departed from the separation of powers structure of the United States Constitution, and ignored the warning of the framers of that instrument that “[T]he accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.” James Madison, The Federalist No. 47.
Further, by delegating legislative, executive, and judicial powers to various administrative agencies, Congress has unconstitutionally established a Star Chamber-like system of rules promulgated, executed and adjudicated by administrative agencies that are functionally a part of the executive branch of government in violation of the due process guarantee of the Fifth Amendment that secures a system of rules promulgated by Congress, executed by the President, and adjudicated by the courts independent from the legislative and executive branches of government.
By the very nature of legislative power, and by the express terms of article I, section 1 of the United States Constitution, Congress may not delegate any legislative power to any other branch of government or other entity, including any administrative agency. As Chief Justice John Marshall stated: “It will not be contended that congress can delegate to the courts, or to any other tribunals, powers which are strictly and exclusively legislative.” Wayman v. Southard, 10 Wheat. 23 U.S. 1, 41 (1825).
As Chief Justice Melville Fuller explained, a “criminal offense” created or clarified by an Executive Branch agency is not valid unless the offense “is fully and completely defined by the act” of Congress. In re Kollock, 165 U.S. 526 (1897).
By vesting legislative power in the Congress, the Constitution requires the Senate and the House of Representatives to enact statutes containing general rules to be executed by the President, as provided in article II, section 1 of the Constitution of the United States, and to be adjudicated in a case or controversy by such inferior courts as Congress may from time to time establish, or in the Supreme Court, as provided in article III, sections 1 and 2.
By abdicating its constitutional legislative responsibility to write the laws whereby the people are governed, and having unconstitutionally delegated that power to unelected bureaucrats, Congress has undermined the constitutional protections of (i) the checks and balances of a bicameral legislative body and (ii) of a presidential veto.
As a direct consequence of Congress having abdicated its responsibility to properly exercise the legislative power vested by the Constitution, Congress has: (i) imposed onerous and unreasonable burdens upon the American people; and (ii) violated the constitutional principle of the separation of the legislative, executive and judicial processes and functions.
As Chief Justice Roberts observed, “the danger posed by the growing power of the administrative state cannot be dismissed,” as there are now “hundreds of federal agencies poking into every nook and cranny of daily life.” City of Arlington v. FCC. 569 U.S._(2013) (Roberts, C.J., dissenting).
Sec. 3 Restoring the separation of powers
Title 1 of the United States Code, shall be amended by inserting at the end of chapter 2 a new chapter, 2B entitled “Separation of powers”, including section 101, as follows:
“101. Nondelegation of legislative power
“(a) Effective 90 calendar days after the enactment of this bill into law no bills passed by Congress shall contain any “delegation of legislative powers” whatsoever, whether to (a) any component within the Legislative Branch of government, (b) the President of the United States or any other member of the Executive Branch of government, (c) the Judicial Branch of government, (d) any federal administrative agency, (e) any quasi-public agency, (f) any state or instrumentality thereof, or (g) any other organization or individual.
“(b)
“(1) A prohibited “delegation of legislative powers” in this section shall include: (a) the creation or clarification of any criminal or civil offense; and (b) the creation or clarification of any non-criminal regulation, prohibition or limitation applicable to the public, or some subset thereof, that is not fully and completely defined by Congress, except that the Executive Branch of government may be delegated authority to make factual findings that will determine the date upon which such statute is implemented, suspended, or revived.
“(2) A prohibited “delegation of legislative powers” in this section shall not include the issuance of any presidential proclamation, or the issuance by any rule or regulation governing the internal operation of any government agency, or conditions made upon grants or contracts issued by any government agency.
“(c) Effective 90 calendar days after the enactment of this bill into law, no new presidential directive, adjudicative decision, rule, or regulation, or change to an existing presidential directive, adjudicative decision, rule, or regulation governing, limiting, imposing a penalty on, or otherwise regulating any activity of any person or entity, other than an officer or employee of the United States government, shall be promulgated or put into effect, unless said directive, decision, rule or regulation is authorized by a bill written in compliance with this section, and duly enacted according to the process of Article I, Section 7 of the United States Constitution.
“(d) Within six months after the effective date of this Act, the Comptroller General of the United States, shall report to Congress identifying all statutes enacted prior to the effective date of this statute which contain any “delegation of legislative powers” prohibited in this section, to the end that Congress may take action to repeal or amend any such statutes.”
Sec. 4 Enforcement clause
Title 1 of the United States Code shall be further amended by adding to new said chapter 2B, as follows:
“102. Enforcement clause
“(a) Effective 90 days after the enactment of this bill, no bill shall become law, nor enforced or applied as law, without Congress having complied fully with the requirements of Section 101(A) and (B) of Chapter 2B of Title 1 of the United States Code, and any persons against whom such a law is enforced or applied may invoke such noncompliance as a complete defense to any legal, equitable, or regulatory action, civil or criminal, brought against him under said law, or the color thereof.
“(b) Any person aggrieved by any action of any executive officer or administration agency pursuant to any statute that does not comply with the provisions of this Act shall have a cause of action under Sections 2201 and 2202, Title 28, United States Code, and Rules 57 and 65, Federal Rules of Civil Procedure, against the United States to seek appropriate relief, including an injunction against enforcement of any law, the contents of which did not conform to the requirements of this Act.
“(c) In any judicial action brought pursuant to subsection (B) of this section, the standard of review shall be de novo.”
Sec. 5 Severability clause
If any provision of this Act, or the application thereof, to any person or circumstance is held invalid for any reason in any court of competent jurisdiction, such invalidity does not affect other provisions or other applications of this Act which can be given effect without the invalid provision or application, and for this purpose the provisions of this Act are declared severable.