Chapter Six
Powers of Congress
Super Congress?
No!
 The government in the United States is
a limited government.
 The American system of government is
federal in form.

– Both of these points work to shape and
limit the powers of Congress.
Congressional Powers

Congress has some things it can’t do:
– Cannot: create a national public school
system, require that all persons attend
church, set a minimum age for a driver’s
license, etc.

Congress has only those powers
delegated to it, and not specifically
denied to it by the Constitution.
Types of Congressional Powers
 Three
kinds of Congressional
Powers:
–Expressed Powers
–Implied Powers
–Inherent Powers
Strict vs. Liberal Construction
(Ways to interpret the Constitution)

Strict Construction
– Led by Thomas Jefferson
and the Anti-Federalists.
– Congress should be able
to exercise only its
expressed powers and
those implied powers
necessary to carry out the
expressed powers.
• Don’t like implied powers
• Literal interpretation of
Constitution
– Government is best, which
governs least.

Liberal Construction
– Led by Alexander
Hamilton and the
Federalists.
– They wanted the Federal
Government to have
more power.
– They read the
Constitution with a broad
interpretation, giving
Congress many
additional implied
powers.
– They won the war.
Expressed Powers
Found in Article One,
Section Eight of the
Constitution
Some Expressed Powers are:

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Power to Tax
Power to Borrow
The Commerce
Power
The Currency Power
Bankruptcy
Foreign Relations
and War Powers
Additional Powers:
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Naturalization
Postal Power
Copyrights and Patents
Weights and Measurers
Power over Territories
and Other Areas
Judicial Powers
Power to Tax
Congress has the power to tax in
order to meet public needs,
protect domestic industry, or
protect public health and safety.
Limitations on the power to tax:
Congress can tax only for public
purposes, not for private benefit.
 Congress may not tax exports.

– They can tax imports.
Direct taxes must be divided among the
States according to their populations.
 All indirect taxes must be levied at the
same rate in all parts of the country.

Congress’ Power to Tax

Constitutional
Limitations

– Public purposes
only.
– No tax on exports.
– Direct Taxes must
be done by
population.
– Indirect Taxes must
be levied at same
rate all over.
Implied Limitation
– Fed gov’t can’t tax
state
– State can’t tax Fed
Gov’t
– Non governmental
activities of State and
local governments
can be taxed.
Direct vs. Indirect Tax

Direct Taxes
– Must be paid by the
person on whom it is
imposed.
– Income tax is an
example of this
• 16th amendment
• The congress shall
have power to lay and
collect taxes on
incomes, without
apportionment among
the States, or regard to
the census.

Indirect Taxes
– Is one first paid by
one person and then
passed on to
another.
– It is indirectly paid by
the second person.
• Tobacco tax
• Cigarette companies
pay a tax to the
treasury and then the
company passes that
tax to the person
purchasing the
cigarettes.
Current Federal Taxes

Income Tax – Flexible, levied to both individuals
and corporations.

Excise Taxes – On manufacture, sale, or
consumption of goods/services.

Estate and Gift Taxes – On estate of one who
dies. Gift tax prevents someone from avoiding
this tax by giving all away before death.

Custom Duties – On goods brought into country
from abroad. Now only 2% on government
revenues.
The Power to Borrow

Congress may borrow to finance its business.
– There is no constitutional limit on how much
Congress can borrow.

The Federal Government spends more than it
collects.
 They need to borrow
– As of present day – the debt/deficit is
9.2 TRILLION DOLLARS
– http://www.brillig.com/debt_clock/
The Commerce Power
Congress can regulate interstate and
foreign trade.
 Gibbons vs. Ogden, 1824

– Supreme Court ruled that the power to
regulate commerce included all
commercial intercourse between States
and nations.

This power implies many others, but it
still limited.
The Currency Power

Congress has the power to issue money and
regulate its value.
– The States cannot do this!!!!

Most forms put out were coins.
 In 1871, the Supreme Court held that paper
money was legal tender.
– Legal tender is any kind of money that a creditor
must by law accept in payment for debts.
Bankruptcy

Congress has the power to establish uniform
bankruptcy laws.
– If you are bankrupt, the court has found that you
are unable to pay your debts.

Bankruptcy is a legal proceeding where the
bankrupt’s assets are divided up among
whom they owe.
 The power to regulate bankruptcy is
concurrent.
– States and the National Gov’t can make laws.
– Most bankrupt cases are heard by federal courts
as opposed to State courts.
Foreign Relations and
War Powers

Foreign Relations
– They have powers from
expressed powers (war
powers, power to
regulate commerce) and
because the U.S. is a
sovereign state in the
world community.
– Congress makes laws for
the U.S. and thus can act
of matters affecting the
security of the nation.

War powers
– Congress can declare
war.
– Can raise and support
armies.
• Organize, arm, and
discipline it too.
– Can provide and
maintain a navy.
– Congress can restrict the
use of American forces in
combat in areas where a
state of war doesn’t exist.
Naturalization and Postal Power

Naturalization is the process how
citizens of one country become citizens
of another.
– Congress can establish uniform rules of
how to do this.

Congress can establish post offices and
post roads.
– They make sure everyone gets their mail
and nothing “bad” goes through the mail.
Copyrights and Patents
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A copyright is the
exclusive right of an
author to reproduce,
publish, and sell their
work.
These are registered by
the Copyright office in
the Library of Congress.
These contracts are
good for the life of the
author plus fifty years.
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A patent grants a
person the sole right to
manufacture a product.
A patent is good
seventeen years the
year of the invention.
A patent can only be
extended by a special
act of Congress.
The Patent and
Trademark Office in the
Dept. of Commerce
administers patent laws.
Power over Territories
and Other Areas

Congress can acquire, manage, and dispose
of various federal areas.
– District of Columbia, Guam, Virgin Islands, and
Puerto Rico are a few examples.
– Also: post offices, naval bases, parks, etc.

Eminent Domain
– The inherent power to take private property for
public use.

Also, any sovereign state may acquire
unclaimed territory by discovery.
Judicial Powers
In order to maintain the system of “checks
and balances,” Congress does have some
judicial powers.
 They can:

– Create all the federal courts below the Supreme
Court to provide for organization and composition
of the federal judiciary.
– Define federal crimes and provide for the
punishment of those who violate federal law.
The Implied Powers
Chapter Eleven,
Section Three
Necessary and Proper Clause
Is the source of Congress’ implied powers.
 The clause states that Congress has the
power “to make all laws which shall be
necessary and proper for carrying into
execution the foregoing [expressed] powers.”
 AKA: “Elastic Clause”

– It is also called this because it has allowed
Congress to stretch it’s powers.
Interpreting the N & P Clause

In 1790 Alexander Hamilton, Sec. Of
Treasury, proposed a National Bank.
– Opposition said: Congress doesn’t have that
power!
– Supporters said: It is a N & P power!
• It is necessary and proper to the execution of taxes,
borrowing, commerce and currency power.

Congress established a National Bank in
1791, it was supposed to expire in 1811.
Another Bank?!?
1816, Congress made a 2nd Natl. Bank
 Opponents tried new things…

– 1818, Maryland put a tax on notes issued by any
bank doing business in the state, but not chartered
by the state legislation.
• This tax was aimed directly at the Second
Bank Branch in Baltimore.
– James McCulloch, a cashier, issued notes on
which no tax had been paid.
• I smell trouble!!!!!
Off to the Courts!
McCulloch v. Maryland, 1819

Maryland state took McCulloch to state court
for his actions and won.
 The U.S. than decided to act on behalf on
McCulloch and take the case to the Supreme
Court.
 The argument:
– Maryland – The bank is unconstitutional
– U.S. – The bank is from implied powers

Supreme Court reversed Maryland Court, and
thus approved implied powers.
Meaning of Implied Powers, cont.
As of today…
 “Necessary and Proper” generally is
interpreted as convenient and useful.
 This will remain true, as long as the
implied powers have their basis in the
expressed powers.

Non-legislative Powers:
Constitutional Amendments
Congress has the power to propose
amendments to the Constitution by a
2/3 vote in each house.
 Congress may call a national
convention to propose an amendment.

– If 2/3 of the State legislatures call for it.
• Has not been done as of yet!
Non-legislative Powers:
Electoral Duties

The House may be called on to elect a
President if no candidate receives a majority
of electoral votes.
– They choose from the top 3 candidates

Under the same circumstances, the Senate
may be called on to elect a Vice President.
 25th Amendment – filling vacancy in VP
– President nominates the successor, needs a
majority vote in both houses of Congress.
Non-legislative Powers:
Impeachment

The House has sole power to vote
articles of impeachment, or removal, of
the President, Vice President, and all
other civil officers of the United States.
– Determined by crimes of treason, bribery,
misdemeanors, and other high crimes.

The Senate has sole power to conduct
a trial of those impeached by the
House.
Impeachment, continued.

House may impeach by majority vote.
 2/3 of the Senators present at the trial are
needed for a conviction.
 Chief Justice must preside over the Senate
when the President is tried.
 Penalty for conviction is removal.
– House impeached Andrew Johnson, 1868; Senate failed to convict
by one vote.
– House impeached Bill Clinton Dec. 19, 1998; Senate acquitted
February 12, 1999.
– Richard Nixon resigned facing certain impeachment.
Executive Powers

The Senate must confirm all major
appointments made by the President.
– Cabinet members, Supreme Court Justices

The Senate must confirm all treaties
made by the President.
– The President does not have the final say
here, example of checks and balances.