Prepared Testimony of Ron Paul, M.C. Before the House Committee on the Judiciary, Subcommittee on Commercial and Administrative Law
Mr. Chairman, thank you for the opportunity to address what I believe is a most serious matter threatening the very structural foundation of freedom established by this nation's founders. James Madison, quoting Montesquieu in the Federalist Papers no. 47, stated "There can be no liberty where the legislative and executive powers are united in the same person, or body of magistrates."
One of the chief complaints of the American colonists against King George was that he had usurped powers that were not rightfully his, and then used those powers to the disadvantage of the people. 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.
This system of "checks" has grown drastically out of balance. Justice Brandeis wrote in 1926 in the Myers v. United States decision, "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."
H.R. 2655 - The Separation of Powers Restoration Act is designed to restore the separation of powers between Congress and the president as set forth in Articles I and II of the United States Constitution by: (1) terminating all existing states of national emergency and removing from the executive branch any power to declare national emergencies; (2) vesting power in Congress alone to declare states of national emergency; (3) restricting presidential power to issue executive orders by denying to them any force of law except as provided for by Congress; and (4) repealing the 1973 War Powers Resolution.
The most glaring example of our out-of-balance system is the power of the president to create laws through the use of the "Executive Order." Article I, Section 1 of the Constitution provides, "All legislative powers herein granted shall be vested in a Congress of the United States."
My legislation, HR 2655 requires that executive orders issued pursuant to Constitutional authority or Statutory authority cite the specific Constitutional provision or Statutory authority or the effect of law is denied the order. A congressional committee print by the 85th Congress reported 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." Also, under my legislation, treaties or international 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.
While there is a role for Executive Orders so that the president may faithfully execute laws passed by Congress, execute those powers specifically granted in Article II and, in so doing, direct Executive Branch employees, for far too many years, the illegitimate uses have overshadowed the legitimate. Presidents have issued Executive Orders that have mistakenly taken on the semblance of law.
Most recently, the November 1 st, 1999 issue of U.S. News & World Report states that "Clinton plans a series of executive orders and changes to federal rules that he can sign into law without first getting the ok from GOP naysayers. White House Chief of Staff John Podesta was quoted as saying "There's a pretty wide sweep of things we're looking to do, and we're going to be 'very aggressive in pursuing it."
It is, of course, a mistake to place all blame with any single president or the presidency itself for abuse of this power. After all, presidents have had many willing accomplices in Congress. A great number of congressmen and senators quietly appreciate the assumed presidential authority to create and enact legislation because it allows them to see their goals accomplished without having to assume political responsibility.
In addition, my legislation repeals the 1973 War Powers Act, which -- despite the constitutional prohibition -- granted broad war-making authority to the Office of the President. With the "power" of the Executive Order, presidents can commit our troops to undeclared wars, destroy industries or make unprecedented social-policy changes.
The ineffectiveness of the War Powers Resolution has been exposed during the Clinton administration's war in Kosovo. The Congress did not declare war or extend the 60 days within which American troops could be used for combat, yet their participation in combat continued. When members of Congress, led by Rep. Tom Campbell (R-CA), attempted to sue in the United States District Court for the District of Columbia to enforce the War Powers Resolution, the federal courts refused to hear the suit. The War Powers Resolution has failed to constrain the unilateral conduct of wars by the president, has been counter-productive, and would be repealed by HR 2655.
One major source of presidential powers abused by presidents of both parties has been the exercise of emergency powers in peacetime. And they remain unaccountable because often these actions occur behind the door of the Oval Office, are distributed without notice, and then executed in stealth. My legislation suspends all of the "national emergencies" Which have been declared since 1976 (when Congress last canceled them). For example, still on the books are "emergencies" relating to Iraq and the Soviet bloc. These emergency declarations give presidents great authority, even if the situation no longer presents a threat to our national security.
Finally, and perhaps most significantly, my legislation grants legal standing to individual Members of Congress and Senators, state officials and, of course, private citizens who believe a president's Executive Order has overstepped constitutional bounds and negatively impacted them, their rights, their property or their businesses. HR 2655 also would provide a statutory definition of a presidential directive: 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 that is issued under the authority of the president or any other officer or employee of the executive branch.
That powers have been usurped is undeniable, and that our system is out of balance is evident to the most casual of observers. We have the opportunity to more perfectly balance our system and restrict potential abuses.
While kings may have the right to promulgate laws simply by decree, it is Rule of Law which is king in our form of government. By clearly defining the lines of power, while restricting the ability of a single person to arbitrarily impose law, we will further secure the blessings of liberty upon our nation. Mr. Chairman, thank you again for holding these hearings.