1. [ 4.4 ] The Implied and Nonlegislative Powers

2. [ 4.4 ] The Implied and Nonlegislative Powers
Learning Objectives
Explain how the Necessary and Proper Clause gives Congress flexibility in lawmaking.
Compare the strict construction and liberal construction positions 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.
Describe the power of Congress to impeach, and summarize presidential impeachment cases.
Describe the role of Congress in amending the Constitution and its electoral duties.

3. [ 4.4 ] The Implied and Nonlegislative Powers
Key Terms
Necessary and Proper Clause
strict constructionists
Thomas Jefferson
liberal constructionists
Alexander Hamilton
consensus
Barack Obama
appropriates
George W. Bush
Samuel Alito
impeach
Andrew Johnson
acquit
Abraham Lincoln
perjury
censure
Richard Nixon
subpoenas
John Quincy Adams
successor

4. The Necessary and Proper Clause
What does the Constitution have to say about education? Nothing, not a word. Still, Congress provides tens of billions of dollars every year for the United States Department of Education to spend in a variety of ways throughout the country. Look around you. What indications of these federal dollars can you find in your local school? If you attend a public school anywhere in the United States, that evidence should not be hard to spot.
The Necessary and Proper Clause gives to Congress the power:
“To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”
—Article I, Section 8, Clause 18

5. Strict Constructionists
The Necessary and Proper Clause
Strict vs. Liberal Construction
As we have seen the Liberal Construction viewpoint prevailed over time allowing for expansion of federal power through the necessary and proper clause
Strict Constructionists
Strict constructionists, led by Thomas Jefferson, argued that Congress should only be able to exercise (1) its expressed powers and (2) those implied powers absolutely necessary to carry out those expressed powers.
Liberal Constructionists
Liberal constructionists, led by Alexander Hamilton, favored a liberal interpretation of the Constitution, a broad interpretation of the powers given to Congress.
On a side note, Hamilton also favored much greater power for the president. How did he view the federal government in relation to the states?

6. The Necessary and Proper Clause
Strict constructionists battled with liberal constructionists over congressional powers. Analyze Charts How would each want Congress to address new situations not originally anticipated?

7. Review
What are the implications of the Court’s decision?…far reaching impact…?

8. The Necessary and Proper Clause
Lunchtime at the Ann Richards School for Young Women Leaders in Austin, Texas. Through its implied powers, Congress has provided funding for school lunch programs.

9. The Necessary and Proper Clause
Remember, every law that Congress passes must be based directly on one of the Art. 1, Sec. 8 powers, or linked to one of those powers through the necessary and proper clause (implied powers.)
Modern lawmakers must try to interpret the Framers' intent in light of modern circumstances. Analyze Charts Without its implied powers, how effectively could Congress address new situations?

10. The Doctrine in Practice
The ways in which the Necessary and Proper Clause has been construed (interpreted) and applied over the last 200 years has enabled the National Government to meet the changing needs of the times. As a result, it has virtually eliminated the need for frequent amendment of the Constitution.

11. The Doctrine in Practice
The Commerce Clause
Limits on the Commerce Power
The War Powers

12. The Doctrine in Practice
The 2009 government bailout and subsequent takeover of failing automotive companies Chrysler, Ford, and General Motors was an example of the exercise of the doctrine of implied powers.

13. The Doctrine in Practice
Congress’ expressed and implied use of the commerce power is not unlimited. Analyze Charts Why are limits on the commerce power important?
Remember, the Commerce clause has been used more than any other expressed power to expand the reach of the federal government. However, in recent years the Court has admonished Congress to make sure that laws based on the commerce power are actually related to commerce….Recall the Lopez case and the federal Safe and Gun-Free School Zones Act.

14. 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 to do so is implied by the Constitution’s grant of the legislative power to Congress, in Article I, Section 1. Both the House and Senate exercise that power through the standing committees and their subcommittees and often through special committees, as well.

15. The Power to Investigate
Recent Investigations
Benghazi
What is the difference between a legitimate government purpose vs. a political purpose of
The investigatory power?

16. Investigatory Power

17. The Power to Investigate
Senator Joseph McCarthy and his aide listen to proceedings at a Senate investigation in 1954 into alleged attempts to obtain an Army reserve officer commission for McCarthy’s political ally.

18. Executive Powers Appointments
The Constitution gives two executive powers to the Senate. One of those powers has to do with appointments to office, and the other with treaties made by the President. (Article II, Section 2, Clause 2)
Appointments
All major appointments made by the President must be confirmed by the Senate by majority vote.
Only 12 of 600 Cabinet appointments to date have been declined.
“Senatorial courtesy” is the practice in which the Senate will turn down an appointment if it is opposed by a senator of the President’s party from the State involved.
Treaties
The President makes treaties “by and with the Advice and Consent of the Senate,... provided two thirds of the Senators present concur.”
Presently, the President often consults members of the Senate Foreign Relations Committee.

19. Executive Powers
Even though it has not occurred often, Congress has rejected several presidential cabinet nominees. Analyze Charts How does the political climate play a role in the reason for rejection?

20. Executive Powers
Charles “Chuck” Hagel speaks to troops during a visit to Afghanistan, his first trip as U.S. secretary of defense. Hagel was confirmed to the position in 2013 by a vote of 58 to 41.

21. 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.” (Article II, Section 4) A close reading of those words suggests that the Framers expected that only serious criminal offenses, not political disagreements, would lead to impeachment. Politics has, nevertheless, been at the root of most impeachment controversies.
The Constitution grants Congress the power of removing the President, Vice President, or other civil officers from their office through impeachment.
The House has the sole power to impeach, or bring charges against the individual.
There is then a trial in the Senate. A two-thirds vote of the senators present is needed for conviction.
The penalty for conviction is removal from office.
Why split the duties of impeachment between the House and the Senate?
Why not allow the Supreme Court to decide impeachment?

22. Impeachment Andrew Johnson: Impeached Bill Clinton: Impeached
Richard Nixon??? Resigned before impeachment

23. Impeachment
President Bill Clinton appears at a news conference after an impeachment vote by the House. Clinton was acquitted on the two articles of impeachment: perjury and obstruction of justice.

24. Clinton Impeachment

25. Impeachment
Congress has impeached and removed eight judges from the bench since Analyze Charts Why does Congress need this impeachment power over judges?

26. Other Powers
Congress is a legislative body; its primary function is to make law. But the Constitution does give it some other chores to perform as well.

27. Constitutional Amendments
Constitutional Amendments: Remember the role played by Congress??
Article V gives Congress the power to propose amendments by a two-thirds vote in each house. The Amendment must then be ratified by three fourths of the State legislatures (38).
Or - ratified by conventions (delegates chosen by popular vote) in three-fourths of the States.
Alternatively
Two- thirds of State legislatures request a national convention. The proposal of the convention must then be ratified by three-fourths of the states.
Why did the Framers make the amendment process so difficult? Why allow a method for bypassing Congress?

28. Other Powers
Flag burning is a controversial issue in the United States. Although amendments to prohibit flag burning have been requested, none have been passed by Congress.

29. Electoral Duties Electoral Duties
In certain circumstances, the Constitution gives Congress special electoral duties.
If no candidate for President receives a majority in the electoral college, the House decides the election.
If no candidate for Vice President receives a majority in the electoral college, the Senate decides the election.
Also, if the vice presidency is vacated, the President selects a successor, who faces congressional approval by a majority vote in both houses.

30. Other Powers
One presidential candidate must receive the majority of the electoral college votes. Analyze Charts What is an example of a situation that might prevent any candidate from winning a majority?