The Legislative Branch Chapter 4 Section 4 The Implied and Non-legislative Powers

Objectives: * Explain how the Necessary and Proper Clause gives Congress flexibility in lawmaking. * Compare the strict construction and liberal construction position on the scope of congressional power. * Describe the ways in which the implied powers have been applied. * Describe the investigatory powers of Congress. * Identify the executive powers of Congress.

The Implied and Non-legislative Powers The Necessary & proper Clause Implied powers are those powers that are not set out in so many words in the Constitution but are, rather, implied (drawn from) those that are. The Necessary and Proper Clause allows Congress to make all Laws that shall be necessary and proper for carrying into execution of foregoing powers. Congress and The Supreme Court have a very loose interpretation when it comes to this clause. It is often referred to as the “Elastic Clause”, if can stretch all it wants.

The Implied and Non-legislative Powers Led by Thomas Jefferson Majority of power would remain with the States and the people. Strict Constructionists Favored a very limited role for the new government created by the Constitution Based on a strict reading of the Necessary and Proper Clause in the Constitution to prevent government from gaining too much power.

The Implied and Non-legislative Powers Led by Alexander Hamilton Favored a vigorous executive leadership. Liberal Constructionists Favored a powerful government that could exercise implied powers. Based on a liberal interpretation of the Constitution because the Constitution did not specifically grant the government these powers.

The Implied and Non-legislative Powers Most of the time, the Liberal interpretation wins in the Supreme Court.

The Implied and Non-legislative Powers THE EXPRESSED POWER TO…IMPLIES THE POWER TO… * Punish tax evaders. Lay & Collect Taxes* Regulate some commodities and outlaw the use of others. * Set conditions to qualify for federal funding. Borrow Money* Establish the Federal Reserve System of banks Create Naturalization Law* Regulate and limit immigration Raise Armies and a Navy* Draft Americans into the military. * Establish a minimum wage. Regulate Commerce* Ban discrimination in workplaces and public facilities. * Pass laws protecting the disabled. * Regulate banking. Establish Post Offices* Prohibit mail fraud and obstruction of the mail. * Bar the shipping of certain items through the mail.

The Implied and Non-legislative Powers The Doctrine in Practice The ways in which the Necessary and Proper Clause had been interpreted and applied over the last 200 years had enabled the National Government to meet the changing needs of the times. This has virtually eliminated the need for frequent amendments to the Constitution. This doctrine has become known as the “convenient and useful” clause. Whenever Congress wants to do something, they use this clause. The word Commerce has led to the meaning of the word to become the production and buying and selling of goods as well as the transportation of people and commodities. Commerce now is defined so broadly that anything in the form of economic activity is included in the Clause.

The Implied and Non-legislative Powers Obamacare was introduced by the Democrats in 2012 and the provision that they used to defend this program that every American citizen must have health care insurance or pay a fine. The Court held that this law is allowed under the Power to Lay and Collect Taxes. The Power to Investigate Congress has the power to investigate – to inquire into or inform itself on – any matter that falls within the scope of its lawmaking authority. The authority is implied by the Constitution’s grant of the legislative power to Congress. Both houses may choose to conduct investigations for any one or a number of reasons.

The Implied and Non-legislative Powers Most inquiries are held to … – Gather information necessary for framing of legislation. – Oversee the operations of various agencies in the executive branch. – Focus public attention on some particular matter. – Expose the questionable activities of some public official or private person or group. – Promote the particular interests of some members of Congress. There are three agencies in the legislative branch investigate and report to Congress – 1) the Congressional Budget Office (CBO) – deals with taxing, spending, and other budget items.

The Implied and Non-legislative Powers 2) Congressional Research Service in the Library of Congress which provide factual information on any subject. 3) Government Accountability Office (GAO) watchdog for Congress, authority to monitor the work of the Federal Government. Recently there have been a lot of investigations into the Obama presidency. Attack on diplomatic building in Benghazi, Libya, and the way the administration releases details about the attack.

The Implied and Non-legislative Powers Executive Powers The Constitution gives two executive powers to the Senate – Major appointments to office All appointments made by the president has to approved by the Senate. Senate holds hearings into these appointments and the candidate is questioned about their beliefs and etc. Senate has only rejected 12 of the 600 candidates nominated by the President. Most of the time a president’s nomination is approved with little fanfare. In the past 6 years, the Senate has really grilled the nominations and some have not been approved. There has been a lot of controversy among the people who have been appointed.

The Implied and Non-legislative Powers – Treaties The President makes treaties by and with the Advice and Consent of the Senate. Senate has to have 2/3 rd vote to approve it.

The Implied and Non-legislative Powers Impeachment The Constitution provides that the President, Vice President, and all civil officers of the United States may be removed from Office on Impeachment for and Conviction of Treason, Bribery, or other high Crimes and Misdemeanors. The House has the power to impeach means to accuse or bring charges. The Senate has the sole power to try and judge the impeachment case. – Two Presidents have been impeached by the House

The Implied and Non-legislative Powers Andrew Johnson in 1868 and Bill Clinton in 1998 House led by Republicans and Senate led by Democrats in Clinton was impeached for an “inappropriate relationship” and perjury (lying under Oath). The Senate voted to acquit both men – found them not guilty. President Richard Nixon resigned before the charges were brought before the House. He was involved in spying on the Democratic head quarters in Washington, DC after he was elected to a second term. This incident was called “Watergate”.

The Implied and Non-legislative Powers Other Powers Congress is mainly a legislative body but has some other powers. Constitutional Amendments – Congress may propose amendments to the Constitution by a 2/3 rd vote. Electoral Duties – The House may be called on to elect a President, if no one receives a majority of the electoral votes. – Each State gets ONE vote – Thomas Jefferson in 1801 and John Quincy Adams in 1825.