To: Charles E. Carlson, Chairman, We Hold These Truths
From: Herbert W. Titus, President, Forecast Foundation
Subject: Freedom from Religious Persecution Act
Date: September 23, 1997
You have requested my opinion on the constitutionality of (HR2431), the Freedom from Religious Persecution Act, a bill currently before the Congress. In my opinion it is unconstitutional.
I. The Act unconstitutionally vests executive power in a director of The Office of Religious Persecution Monitoring.
Article II, Section l, Paragraph 1 vests the executive power of the United States in one person, the President of the United States. The Freedom From Religious Persecution Act vests executive power in the Director of the Office of Religious Persecution Monitoring in derogation of the constitutional power of the President.
While the Act prescribes that the Director is appointed by the President, with the advice and consent of the Senate, and provides that he serves at the pleasure of the President, the Act nevertheless transfers away from the President significant executive power that the Constitution has vested exclusively in the President. First of all, Section 6 authorizes the Director to determine whether religious persecution is taking place in specified regions or countries and, further, “to identify and list the persecution facilitating products, goods, and services.” These determinations and identifications are to be made annually and included in a report submitted to named Congressional Committees. There is no provision in the statute calling for the submission of these reports to the President prior to their submission to Congress. In effect, this section vests executive oversight in Congress, thereby displacing the President from his exclusive position as the chief executive officer of the United States.
This constitutional error is compounded by Section 7 which imposes upon the Director the duty, upon finding “the occurrence of category 1 religious persecution … [to] so notify the relevant United States departments and agencies” which, in turn, must “prohibit all exports to the … entities listed [by] the Director” and “prohibit the export to such country of the persecution facilitating products, goods and services [on the lists] of the Director.” Upon the Director
