Separation of Powers Restoration Act

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.

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).

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.”.

Article I of the Constitution provides, “All legislative powers herein granted shall be vested in a Congress of the United States.”.

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).

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 or Officer thereof.””. (Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952)).

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.

Repeal of war powers resolution— The War Powers Resolution (50 U.S.C. 1541 et seq.) is repealed.

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.

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.

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.

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.

Exceptions— Subsection (a) does not apply to—

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—

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.

Aggrieved persons— Any person aggrieved in a liberty or property interest adversely affected directly by the challenged Presidential order.

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 which is issued under the authority of the President or any other officer or employee of the executive branch.