Chapter 11: The Powers of Congress

Where Does Congress’ Power Come From? Congress gets all of its power from Article I of the U.S. Constitution

Powers of Congress Congress has 3 kinds of power: Expressed – directly written in the Constitution Implied – reasonably assumed based on the expressed powers Inherent – nowhere in the Constitution, but always held by national governments

Interpreting the Constitution How much power Congress has depends on how we interpret the Constitution There are two major “schools of thought” on how much power Congress should have

Interpreting the Constitution Strict Constructionist (originalist)– believe that Congress should only have the expressed powers and no more Support very limited government Believe that individual liberty is most important First SC was Thomas Jefferson

Interpreting the Constitution Liberal Constructionist (living constitution) – believed that we should interpret the Constitution loosely, so that Congress could have more power Support an active government Believe that governmental effectiveness is most important First LC was Alexander Hamilton

Powers that Both Houses use Together Powers of Money and Commerce Power to “lay and collect taxes” Cannot tax for private benefit Cannot tax exports Federal tax rates must be the same in all states

2 Kinds of Taxes Direct Tax – paid by the person it is imposed upon Income tax, Property tax

2 Kinds of Taxes Indirect tax – imposed on one person, but paid by another Cigarette Tax, Gas Tax

Powers that Both Houses use Together Powers of Money and Commerce Power to “borrow money on the credit of the United States” Deficit – money spent exceeding tax revenue, must be borrowed this year to pay our bills ($172 billion in 2007) Borrowed by selling bonds

Powers that Both Houses use Together Powers of Money and Commerce Power to “borrow money on the credit of the United States” Debt – total of all deficits yet to be paid back, plus interest owed (over $9 Trillion)

Powers that Both Houses use Together Powers of Money and Commerce Power to “regulate commerce . . . among the several states” Power is often extended to do seemingly unrelated implied powers Build interstate highways Ban racial discrimination

Gibbons v. Ogden, 1824 New York had given Robert Fulton exclusive rights to operate a steamboat on the Hudson River Fulton gave Ogden a permit to operate the steamboat for him Gibbons had a license from the U.S. government to operate a steamboat in the same area

What are the Constitutional Issues? Whose permit is supreme? What does “commerce” mean?

Gibbons v. Ogden, 1824 The court decides to interpret “commerce” very broadly “Commerce” means virtually all commercial interactions Thus, Congress can regulate just about anything

Powers that Both Houses use Together Powers of Money and Commerce Power to “coin money and regulate the value thereof” Power to “establish uniform laws on the subject of bankruptcies” Bankruptcy – person declared incapable of repaying debt, debts are cleared

Expressed Powers: Foreign Relations Congress has the power to declare war However, they have abdicated the power to wage war to the president

How Congress Lost This Power Congress passed the Gulf of Tonkin Resolution, allowing the Pres. to use troops without Congress’ permission Tried to take power back with War Powers Resolution (1973)

Why Would Congress Do This? Congress is a collection of cowards – most don’t want to accept responsibility for mistakes

Other Expressed Powers Naturalization – setting the rules to become a citizen Postal Power – Congress sets up the Post Office Copyrights and Patents Weights and Measures – making sure they mean the same thing nationwide

Other Expressed Powers Power over territories – Congress controls territories, and decides whether they become states or not Eminent Domain – Congress can take private property for public use Judicial Power – Congress sets up the court system

Implied Powers Necessary and Proper Clause – Where the implied powers come from Tells Congress they can make any laws “necessary and proper” for carrying out their expressed powers

McCulloch v. Maryland (1819) First case that tested the Necessary and Proper Clause Congress created a national bank, and Maryland hated it Maryland placed a tax on all national bank transactions to try and put it out of business

John Marshall and the Court Say: Any laws Congress passes, so long as they hold to the spirit of the Constitution, are okay This is a liberal constructionist position Since this case, Congress has used many implied powers

Nonlegislative Powers Propose Constitutional Amendments with 2/3 vote in both houses House of Reps. chooses the president if no candidate gets a majority in the electoral college Senate chooses vice-president

Nonlegislative Powers Impeachment – means to bring criminal charges against Impeachment requires majority vote in the House

Nonlegislative Powers After House votes, trial begins Chief Justice acts as judge, Senate acts as jury

Nonlegislative Powers A conviction, which would remove the pres. from office, requires a 2/3 vote in the Senate

Executive Powers Appointment – President appoints officials with majority approval of Senate

Executive Powers Treaties – President makes treaties, but Senate must approve with 2/3 vote