Development of Congressional Development of Congressional Powers Powers

Chapter 6Chapter 6

I. Constitutional Powers: I. Constitutional Powers: Article I implies the Framers wanted Congress to play the central role in Article I implies the Framers wanted Congress to play the central role in governing the nationgoverning the nation

A. OverviewA. Overview

1. Legislative powers: make bills and laws that 1. Legislative powers: make bills and laws that represent the people represent the people

a.a. expressed powers (enumerated expressed powers (enumerated powers)powers)

b. “necessary and proper” b. “necessary and proper”

-let Congress expand its role (elastic clause)-let Congress expand its role (elastic clause)

EXPRESSED POWERSEXPRESSED POWERSborrow moneyborrow moneyregulate commerce with foreign nations, and among the several states, and with the Indian tribesregulate commerce with foreign nations, and among the several states, and with the Indian tribesestablish a uniform rule of naturalizationestablish a uniform rule of naturalizationuniform laws on the subject of bankruptcies uniform laws on the subject of bankruptcies coin money, regulate the value thereof, and of foreign coin, and fix the standard of weights and coin money, regulate the value thereof, and of foreign coin, and fix the standard of weights and measuresmeasuresprovide for the punishment of counterfeitingprovide for the punishment of counterfeitingestablish post offices and post roadsestablish post offices and post roadspromote the progress of science and useful arts, securing authors and inventors the exclusive promote the progress of science and useful arts, securing authors and inventors the exclusive right to their respective writings and discoveriesright to their respective writings and discoveriesconstitute tribunals inferior to the Supreme Courtconstitute tribunals inferior to the Supreme Courtdefine and punish piracies and felonies committed on the high seas, and offenses against the law define and punish piracies and felonies committed on the high seas, and offenses against the law of nationsof nationsdeclare war, grant letters of marque and reprisal, and make rules concerning captures on land declare war, grant letters of marque and reprisal, and make rules concerning captures on land and waterand waterraise and support armies, but no appropriation of money to that use shall be for a longer term raise and support armies, but no appropriation of money to that use shall be for a longer term than two yearsthan two yearsprovide and maintain a navyprovide and maintain a navymake rules for the government and regulation of the land and naval forcesmake rules for the government and regulation of the land and naval forcesprovide for calling forth the militia to execute the laws of the union, suppress insurrections and provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasionsrepel invasionsprovide for organizing, arming, and disciplining, the militia, and for governing such part of them as provide for organizing, arming, and disciplining, the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively, the may be employed in the service of the United States, reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congressprescribed by CongressRule D.C.Rule D.C.necessary and proper necessary and proper

2.2. Conflicting InterpretationsConflicting Interpretations a.a. “strict construction” (interpretation) “strict construction” (interpretation)

vs. “loose construction”vs. “loose construction” b. Which give states more power???b. Which give states more power???

3.3. Powers DeniedPowers Denied a. Reserved Powers (states rights)a. Reserved Powers (states rights)

Police Powers, Education, Intrastate commercePolice Powers, Education, Intrastate commerce b. Othersb. Others

--suspend the writ of habeas corpus: wrong suspend the writ of habeas corpus: wrong person person

--pass bills of attainder: guilt w/o trialpass bills of attainder: guilt w/o trial

-pass ex post facto laws: not illegal when -pass ex post facto laws: not illegal when committed.committed.

B. Legislative Powers: most significant functionB. Legislative Powers: most significant function1. The Taxing and Spending Power1. The Taxing and Spending Power

a.a. “power of the purse” “power of the purse” b. “All bills for raising Revenue shall originate in b. “All bills for raising Revenue shall originate in

the House of Representatives” the House of Representatives” c.c. Appropriations bills are proposed Appropriations bills are proposed

laws to authorize spending moneylaws to authorize spending money d. Regulatory powers (tied to commerce)d. Regulatory powers (tied to commerce)

2. Other Money Powers2. Other Money Powers a.a. borrow money to pay for the cost of borrow money to pay for the cost of

governmentgovernment b. National debt b/c it needs to borrow to meet b. National debt b/c it needs to borrow to meet

expensesexpenses c.c. Why can’t states borrow money???? Why can’t states borrow money????

3. The Commerce Power3. The Commerce Power a.a. commerce clause (interstate) commerce clause (interstate) b. b. Gibbons v. Ogden (1824)Gibbons v. Ogden (1824): :

-Steamboats in New York-Steamboats in New York

-Interstate Commerce-Interstate Commerce c. SC has expanded definition and granted c. SC has expanded definition and granted

Congress more powerCongress more power d. Uses its power over interstate commerce to set d. Uses its power over interstate commerce to set

policy in other areas: policy in other areas:

- Heart of Atlanta Motel v. United States - Heart of Atlanta Motel v. United States (1964)(1964): landmark Civil Rights Act that : landmark Civil Rights Act that prohibited discrimination in places of public prohibited discrimination in places of public accommodation accommodation

4. Foreign Policy Powers4. Foreign Policy Powers a.a. Approve treaties Approve treaties b. Declare warb. Declare war c.c. Create and maintain an army and Create and maintain an army and

navynavy d. Make rules governing land and naval forces d. Make rules governing land and naval forces e. Regulate foreign commercee. Regulate foreign commerce f.f. Shares FP and national defense Shares FP and national defense

powers w/ the president powers w/ the president g. 1973 War Powers Act g. 1973 War Powers Act

5. Providing for the Nations Growth5. Providing for the Nations Growth a.a. naturalization naturalization b. admit new states and pass laws needed to govern b. admit new states and pass laws needed to govern

any territoriesany territories c.c. laws to govern federal property laws to govern federal property

6. Other Legislative Powers6. Other Legislative Powers a.a. grant copyrights and patents grant copyrights and patents b. establish a post office and federal courtsb. establish a post office and federal courts

C. Non-legislative Powers: C. Non-legislative Powers:

1. The Power to Choose a President1. The Power to Choose a President a.a. Joint session of Congress to count Joint session of Congress to count

the Electoral College votesthe Electoral College votes

2. The Removal Power2. The Removal Power a.a. Remove any federal official from Remove any federal official from

officeoffice b. House of Representatives has exclusive power b. House of Representatives has exclusive power

over impeachment (formal accusation of misconduct over impeachment (formal accusation of misconduct in office)in office)

c.c. Senate tries the case. Senate tries the case.

3. The Confirmation Power3. The Confirmation Power a.a. Senate has power to approve Senate has power to approve

presidential appointments of federal officialspresidential appointments of federal officials

4. The Ratification Power4. The Ratification Power a.a. Senate the exclusive power to ratify Senate the exclusive power to ratify

treaties between the US and other nationstreaties between the US and other nations

5. The Amendment Power5. The Amendment Power a.a. Congress and state legislatures Congress and state legislatures

share power to propose amendmentsshare power to propose amendments b. All amendments have started in Congressb. All amendments have started in Congress

II. Investigations and Oversight: inherent (not mentioned in II. Investigations and Oversight: inherent (not mentioned in the Constitution)the Constitution) A. The Power to Investigate: neither granted nor denied by A. The Power to Investigate: neither granted nor denied by

the Foundersthe Founders1. The Investigation Process1. The Investigation Process

a. done by Standing or Select committeea. done by Standing or Select committee b. reasons for Congressional investigations varyb. reasons for Congressional investigations vary c.c. consequences of investigations: consequences of investigations:

- lead to new legislation to deal with problems- lead to new legislation to deal with problems- changes in government programs- changes in government programs

2. Congressional Powers and Witness Rights2. Congressional Powers and Witness Rights a.a. congressional investigations are not congressional investigations are not

trials but like courtstrials but like courts b. congressional witnesses had few rights b. congressional witnesses had few rights c.c. Watkins v. United States (1957)Watkins v. United States (1957): SC : SC

ruled that Congress has to respect witnesses ruled that Congress has to respect witnesses constitutional rights just as courts do constitutional rights just as courts do

B. Legislative Oversight: review of how effectively the B. Legislative Oversight: review of how effectively the executive branch carries out the laws Congress passesexecutive branch carries out the laws Congress passes

1. The Practice of Legislative Oversight1. The Practice of Legislative Oversight a.a. checks and balances: checks and balances:

2. Limits on Legislative Oversight2. Limits on Legislative Oversight a.a. used inconsistently: “pass it and used inconsistently: “pass it and

forget it” lawmaking forget it” lawmaking b. reasons:b. reasons:

- not enough staff, time or - not enough staff, time or

- hard to determine if the EB is doing its job- hard to determine if the EB is doing its job

- lawmakers and agency officials become - lawmakers and agency officials become friends friends

3. Congressional Limits on Executive Activities3. Congressional Limits on Executive Activities a.a. oversight is executed in several oversight is executed in several

waysways- executive agencies required to submit reports- executive agencies required to submit reports- congressional support agencies study - congressional support agencies study executive agencies executive agencies - appropriate funds: review budget of all EB - appropriate funds: review budget of all EB agenciesagencies

4. Independent Counsel4. Independent Counsel a.a. 1978 Ethics in Government Act: 1978 Ethics in Government Act:

make sure charges of wrongdoing by government make sure charges of wrongdoing by government officials are reviewed fairlyofficials are reviewed fairly

- special prosecutor called independent counsel- special prosecutor called independent counsel b. 1999 Congress let the law expire and gave sole b. 1999 Congress let the law expire and gave sole

power back to Attorney Generalpower back to Attorney General