Power of Congress Notes

The Expressed Powers: Money and Commerce

  • Congress has powers delegated to it by the Constitution.
  • These powers are delegated in three ways:
    • Expressed
    • Implied
    • Inherent
  • States also have powers, called Reserve powers or Police Powers.

Expressed Powers

  • Expressed Powers are explicitly worded in the Constitution.
  • Most are found in Article 1, Section 8.
  • There are 18 separate clauses granting 27 powers.
  • The wording is brief and broad.

Implied Powers

  • Implied Powers are those interpreted as necessary to exercise the expressed powers.
  • Most have been reviewed by the Supreme Court.
  • They add substance to the Expressed Powers.
  • Example:
    • Expressed Power: To raise and maintain an Army and Navy.
    • Implied Powers: Create Air Force, construct Aircraft Carriers, even drones.

Inherent Powers

  • Inherent Powers are those held by a branch of government based on broad statements.
  • Examples:
    • Create immigration laws
    • Recognize foreign countries
    • The power to create new departments of government

The Commerce Power

  • Commerce Power is the power to regulate interstate and foreign commerce.
  • It is vital to the welfare of the Nation and helped create a strong United States.
  • Gibbons v. Ogden (1824) established the precedent for this power.

The Power to Tax

  • Congress has the power “To lay taxes and collect taxes, duties, imports…”
  • This power was not given by the Articles of Confederation.
  • Reasons taxes are imposed:
    • To meet public needs.
    • Protective tariff: To protect domestic goods.
    • To protect public health and safety.

The Power to Tax…Types

  • Direct Tax: Paid by the person on whom it is imposed.
    • Example: Property tax and income taxes.
  • Indirect Taxes: A tax paid by someone and then passed on to another.
    • Example: Cigarettes: The tobacco company pays, and the treasury department adjusts prices on the customers.

The Power to Borrow

  • “Congress has power to borrow money on credit…”
  • There is no limit on borrowing money.
  • Debt becomes public.
  • Congress has set ceilings, but these are not set in stone.
  • For decades, the government practiced deficit spending.
  • No surplus was documented from 1968-1998.

The Currency Power

  • Congress has the power “to coin money.”
  • States are denied this power.
  • This helps prevent economic chaos.
  • Paper money is Legal Tender.

Congress and Foreign Powers

  • Power denied to States: International Law.
  • The President is the leader in the field.
  • Congress does have some powers:
    • Expressed powers: spending power, regulate trade, war powers, treaty ratification.
    • Inherent powers: to act on matters of National Security.

War Powers

  • Six out of 27 powers deal with War and National Defense.
  • Congress declares war.
  • It has the power to raise and maintain a Navy.
  • It can issue Letters of Marque and reprisal.
  • The War Powers Resolution gives military power to the president.

Domestic Powers…Copyrights and Patents

  • Copyrights
    • Exclusive right of author to reproduce, publish, and sell their work.
    • Good for the life of the author + 70 years.
  • Patents
    • Grant people the sole right to manufacture a product.
    • Good for up to 20 years.

Domestic Powers…Postal Powers

  • Power to establish Post Office and Post Roads.
  • Post Roads include rail lines, airways, waterways while mail is in transit.
  • This was one of the few things that worked with the AoC.
  • Many federal crimes are due to obstruction of mail and others.

Additional Powers of Congress

  • Power to oversee Territories and Other Areas.
  • Power to acquire property through purchase, gifts, or eminent domain.
  • Weights and Measures
    • “Fix the standards of weights and measures.”
    • Examples: the English system, the metric system, etc.

The Necessary and Proper Clause

  • The Necessary and Proper Clause is the basis of the implied powers.
  • Located in Article I, Section 8, Clause 18.
  • Basis on how Congress and the Supreme Court have interpreted the Constitution.

Strict Constructionists

  • Favored by Anti-Federalists then, and today most likely Republicans.
  • Powers Needed
    • Had right to enforce expressed power
    • On Implied: Only those powers necessary to carry out “Govt. is best when governs the least.”
  • States should keep as much power as possible.
  • Reason: Not All states had the same interests.

Liberal Constructionists

  • Favored by the Federalists then, and today most likely Democrats.
  • Favored a broad interpretation of the document, arguing for different meanings on constitutional representations.
  • Lots of the powers are explained in the Federalist Papers
  • Explaining how the constitution works

McCulloch v. Maryland (1819)

  • Supreme Court case over the National Bank.
  • First supreme court case to test implied powers.
  • Sets a pattern used ever since (Precedent).
  • Responsible for growth of Nat Govt., especially in wars, crises, Nat. Emergencies
  • Expressed powers justify Taxing, Borrowing, Currency, and commerce.

The Doctrine in Practice

  • Thanks to “necessary and proper,” have become “convenient and useful.”
  • No congress has blanket authority to do anything in the name of “public interest.”
  • Implied powers have to be found within Expressed Powers.
  • Top 3 reasons to justify implied powers: Commerce Clause, Tax, War.

Non-legislative Powers

Electoral Duties

  • House: Electing a president only if no majority victor in the electoral college.
  • Senate: Electing a VP only if no majority victor in the electoral college.
  • Also, if the VP succeeds the President.

Impeachment

  • All civil officers can be removed through the impeachment process.
  • The House has the right to impeach.
  • The Senate has the power to try; they judge and sit as a court.
  • Impeachment requires a majority vote.
  • Conviction requires two-thirds.

Famous Cases

  • Andrew Johnson
    • Impeached for violating the Tenure of Office Act.
    • Fell short by one Vote.
  • Bill Clinton
    • Impeached for perjury.
    • Senate acquits.
  • Richard Nixon
    • Watergate Scandal
    • Nixon quits before he is impeached.

Executive Powers and Treaties

  • Appointments and Treaties made by the president must be approved.
  • Hardly ever are they blocked (appointments).
  • Senate can reject or accept; also amend it.

Congress: Power to Investigate

  • The power to inquire.