Chapter 6: Development of Congressional Powers Section 1: Constitutional Powers Section 2: Investigations & Oversight Section 3: Congress & the President

Section 1: Constitutional Powers The powers of Congress are limited by The Bill of Rights The Constitution (expressed, implied & inherent powers) Congress can’t Suspend the writ of habeas corpus (let a court decide if someone has been legally detained) Pass bills of attainder (no trial) Pass ex post facto laws (make something illegal after the fact) I. Constitutional Provisions A. The “necessary and proper” clause has been used to expand the power of Congress The Supreme Court has issued conflicting rulings on the “elastic” clause McCullcoch v. Maryland case upholds the doctrine of “implied powers” (see p. 157)

II: Legislative Powers And, all bills regarding taxes (revenue bills) must start in the House. They cannot be first introduced in the Senate. Why would this have been important to the Framers? Since the Constitution doesn’t specify how appropriations laws (laws about spending money) must be passed, Congress has used this ability to strengthen its power over time (mostly through mandates) A The power to levy taxes and appropriate money is one of Congress’ most important powers (why?) Congress has the power to borrow money, coin money, make laws regarding bankruptcy. Another way Congress has the power to tax and spend is that it has “the power of the purse” (it controls the budget)

II: Legislative Powers continued Heart of Atlanta Motel v. United States (1964) Katzenback v. McClung (1964) These cases show that the Court was willing to grant the federal government the power to oversee business regarding issues that weren’t purely economic. Both of these cases involve enforcement of civil rights laws through the power to regulate interstate commerce. The Commerce power-Congress has the power to regulate interstate commerce. The Supreme Court upheld this power in the case Gibbons v. Ogden (1824) Today, the federal government has the right to regulate just about every type of business because virtually everyone in business engages in interstate commerce in some way.

II: Legislative Powers continued Congress makes the rules for the naturalization process Congress regulates foreign commerce Congress has the power to approve treaties, to declare war and to create and maintain the armed forces. Congress has the right to add new states or territories to the Union. Foreign Policy Powers--Congress shares these with the President. For example, Congress has only declared war 5 times, while the President has used military force in other nations more than 200 times. There was no official declaration of war for either Korea or Vietnam. The War Powers Act limits how long the President can commit troops (60 days) and specifies that he must let Congress know within 48 hours.

III: Nonlegislative Powers What else can Congress do besides pass bills? The Power to Choose a President If there is no clear winner in the electoral college, the House of Representatives chooses the president from among the top 3 candidates (when has this happened in history? in 1800 when Thomas Jefferson was chosen over Aaron Burr and in 1824 when John Quincy Adams was chosen over Andrew Jackson) 2. The Senate would choose the VP if there were a tie in the electoral college (would this happen today?) The 20th and 25th amendments have given Congress the authority to make decisions in the event of the death or incapacity of the executive.

III: Nonlegislative Powers continued B. The Removal Power Congress has the right to remove any federal official from office The House has the power of impeachment (to formally accuse of a crime worthy of removal of office) The Senate acts as the jury to decide if the President is guilty. A 2/3 vote is needed to convict and remove from office. Presidents Clinton and Andrew Johnson were impeached by the House but then acquitted (found not guilty) by the Senate of “high crimes and misdemeanors” Nixon would have been impeached most likely convicted and removed from office had he not resigned in 1974.

Nonlegislative Powers continued The Confirmation Power The Senate has the power to confirm (approve) Presidential nominations. It looks at hundreds (mostly for promotion of military officials and appointment of federal judges) The Senate looks much more closely at nominees for the Supreme Court and holds special confirmation hearings (remember the Executive Calendar?). The Senate rejects about 20 percent of Presidential Supreme Court nominees.

Nonlegislative Powers continued D. the Ratification Power The Senate has the power to ratify treaties between the U.S. and other countries. This requires a 2/3 majority vote of members of the Senate. If the President thought it likely that the Senate would not approve a treaty, s/he could negotiate an executive agreement, which does not require Senate approval. E. The Amendment Power The Senate can propose an amendment and so can the state legislatures. An amendment may be proposed by a 2/3 vote of both houses. The state convention method has not been used in U.S. history. All 27 amendments have started in Congress. Why do you think the Framers included an alternative way to propose an amendment?

Section II: Investigations & Oversight A. The Power to Investigate Standing committees or select committees of Congress investigate the conduct and ethics of government officials and members of Congress. The investigation process usually involves calling witnesses to testify before committee members, often under oath. Subpoena Perjury Contempt immunity Witnesses now have the same rights in committee hearings as they would in a court of law (Watkins v. United States, 1957) Most committee hearings go unnoticed, but sometimes the public takes notice, such as the Iran-Contra hearings or the hearings about the use of steroids in professional sports.

II: Legislative Oversight Congress has formalized its oversight power through a number of laws: Legislative Reorganization Acts of 1946 and 1970 Your book says it’s just not possible for Congress to monitor everything the executive branch does, so it carries out its oversight function inconsistently. Do you agree? Why isn’t oversight a majority priority for legislators? “Where there is publicity to be gained, there is oversight to be had.” The main purpose of Congress having the oversight function is to see how well the executive branch is carrying out the laws passed by Congress. How does the oversight function illustrate the principle of checks and balances?

How does Congress conduct oversight? Congress used to use the so-called legislative veto as a tool of oversight, but it was declared unconstitutional in INS v. Chadha (1983) The main problem in this case was that Congress’ ability to cancel actions of the executive agencies put employees of the executive branch under the control of the legislative, which violated the principle of separation of powers. Congress can require the executive agencies to issue reports. It can ask the support agencies to study an issue Congress has the “power of the purse”, the ultimate oversight tool! Independent Counsel (this power was allowed to expire in 1999).

Section 3: Congress & the President A President is not in office as long as many members of Congress, so they may not have the same timetable on issues. “Gridlock” is the term for a stalemate between the legislative and executive. People think this is most likely to happen when the legislative and executive are from opposing parties. However, gridlock is also a problem when there is “unified government (one party controls both the legislative and executive) I. Cooperation and Conflict Congress members represent interests that may be more narrow than that of the President, which can lead to conflict over an issue. Checks and balances may cause conflicts between the executive and legislative (the President can veto, Congress can override)

II: The Struggle for Power One historical example is Congress vs. the president on the budget issue. The Congressional Budget and Impoundment Control Act of 1974 set up permanent budget committees and created the CBO, along with limiting the president’s power to impound funds. (Impoundment is when a president refuses to spend money Congress has authorized in the budget.) A. The balance of power has shifted back and forth between the President and Congress in American history. For example, sometimes Congress has given the President emergency powers and then later wanted to take those powers away. Consider the current debate over what Congress thought it told the President versus how he has interpreted his ability to combat terror.

II: The Struggle for Power continued In 1996, Congress authorized the line-item veto for the president, giving him permission to veto specific spending items in appropriations bills. The intent was to help curb “pork barrel” legislation and cut the deficit. However, in 1998, the Supreme Court ruled that a line-item veto was unconstitutional because it tried to get around the process that the Framers set up for the President to veto something. Critics also said it was a way for Congress to get out of having to cut spending themselves by shifting that responsibility to the president.