Development of
Congressional
Power
Constitutional Powers
Provisions
–Expressed Powers (Article 1
Section 8)
–Necessary and Proper Clause
(18th clause of expressed powers)
–Implied powers (Granted by the
courts via the necessary and
proper clause)
Conflicts
in Interpretation
–McCulloch v Maryland
First USSC case that ruled
on the scope of the extent of
congressional power
Court rules that if the
necessary and proper clause
does not enlarge
congressional powers, then
it cannot also restrain
actions in fulfilling the
expressed powers.

Denied
Powers
–Taxing of exports
–Suspension of a writ of habeas
corpus- court order releasing a
person to determine the validity
of their detention.
–Cannot pass laws establishing an
individuals guilt and punishment
for them without a trial
–Cannot pass ex post facto laws-
laws that make crimes of acts
that were legal when committed.
Legislative Powers
–Taxing and Spending Power
Revenue Bills- proposed laws
for making money
–These bills must start in the
House
Appropriations Bills- proposed
laws authorizing the spending
of money
–Not specifically mentioned in
the Constitution
–Arose out of necessity
Provides federal control via
limits, regulations, and taxes

Allows for federal
regulation of the economy
through raising or lowering
taxes.
–Other Money Powers
Congress is allowed to
borrow money to pay for
the cost of government.

This is usually
accomplished by way of
selling bonds or
government notes.
–Commerce Power
The Constitution allows for
the regulation of foreign
and interstate commerce.

Courts have expanded the
definition far beyond the
buying and selling of goods and
services.
Congress had used this power
to enact minimum wage laws,
environmental regulations, and
even civil rights.

Heart of Atlanta Hotel v.
United States
–An Atlanta hotel owner
challenged the Civil Rights
Act of 1964- outlawed
discrimination in places of
public accommodation
(hotels, restaurants, etc.) and
in jobs- saying his business

was not interstate and
therefore not subject to
federal regulation.
–USSC ruled that places of
public accommodation
served interstate travelers
and were therefore subject
to federal regulation.
Foreign
Policy Powers
–Can regulate foreign commerce
–Also includes the raising of the
armed services and the power to
declare war.
–National security duties are
shared with the President and
usually follow his leadership.
–War Powers Act 1973
To reassert control following
Korea and Vietnam Congress
passed legislation limiting
Presidential power in use of the
military.
President has to notify
Congress within 48 hours if
committing military force for
more than 60 days.

National
Growth
–Congress has administrative
powers over
Immigration
Naturalization
Territories
Federal property

Other
Legislative Powers
–Congress has the power to grant:
Copyrights
–Exclusive right to publish
and sell an artistic work for a
specific period of time
(Lifetime of creator plus 50
years).
Patents
–Exclusive right of an inventor
to manufacture, use, and sell
their invention for a specific
period of time (17 years plus
renewal)
–Congress has the power to
establish a Post Office and
Federal Courts

Nonlegislative
Powers
–The Power to Choose a President
Non-Electoral College
Majority
–If neither candidate receives
a majority of the Electoral
College votes than the House
selects a President, and the
Senate selects the VP.
–This has happened twice
•1800- Jefferson was
chosen over Aaron Burr
•1824- John Quincy
Adams chosen over
Andrew Jackson
Amendments
–20th and 25th allow for
problems regarding the death
of an elected candidate and
Presidential incapacity or
resignation.
th
–25 allows a President to
select a VP with
Congressional confirmation if
the office is vacated.

–This was done twice in the
1970’s.
–The Power to Remove a
President
Impeachment
–The House of
Representatives has the
power over formal accusation
of misconduct while in office.
–If a House majority votes for
impeachment, the Senate then
tries the accused and must get
a 2/3 vote of those present for
a conviction and removal.
–If a President is being
impeached then Chief Justice
of the United States presides
over the proceedings.
Presidents Impeached
–1868- Andrew Johnson was
acquitted by one vote.
–1999- Bill Clinton (charged
with perjury in grand jury
testimony and obstruction of
justice) was acquitted by a
failure to get a 2/3 majority.

Confirmation
Power
–Senate had confirmation power
over military promotions and
presidential appointmentsincluding the USSC.
Ratification Powers
–Senate has ratification powers
over all treaties with foreign
nations.
–Presidents have been
bypassing this formality with
the use of Executive
Agreements that don’t
require Senate approval.
Amendment Power
–To date all amendments have
been started in the Congress.
Investigations and Oversight
The Power to Investigate
–The Constitution neither
grants nor denies the power
of Congress to investigate
certain matters.
The
Process
–Standing or Select
Committees may organize so
as to collect evidence, gather
testimony, and hold hearings.
–Often politically or publicity
motivated.
–Results often include new
legislation, reform, or even
removal of government
officials.
–Quite often can publicly
damaging.
Joseph McCarthy
Mark McGwire
Congressional
Powers and
Witnesses
–The Subpoena
Legal order for a person to
appear or produce documents
that Congress has like a court
of law.
Congress can legally force you
to appear before them.
–Perjury
Congressional testimony is
given under oath- like a
court of law- anyone who
lies before Congress can be
prosecuted for this.

–Contempt
Those who refuse to
cooperate with Congress
can be found in contempt
and arrested and jailed if
found to be obstructing
Congress’s efforts.

–Constitutional Rights
In Watkins v. United States
(1957) the USSC ruled
Congress must respect the
constitutional rights of their
witnesses.

–Immunity
To compel people to testify
Congress has the power to
grant freedom of prosecution
from illegal acts linked to their
testimony.
th
If granted immunity the 5
amendment goes out the
window and failure to testify
can led to contempt charges

Legislative
Oversight
–A Huge Bureaucracy
 Congress has created a
huge system of agencies
whose job it is to oversee
the executive branch in
carrying out congressionally
passed laws.
–The Practice
Seen as a part of checks and
balances
Does not allow the
executive branch to
individually interpreter
congressional legislation.

–Why the Lack of Consistency in
Congressional Oversight?
Not enough staff, time, or
money to oversee everything.
There are not many votes to be
gained by lawmakers in
oversight activities.
Vagueness of some laws makes
for difficult enforcement of
Familiarity with an agency
breeds a sometimes
protective nature among
those who are to critically
examine them.

–Limits on Executive
Activities by Congress
Reports
–Executive agencies must
submit reports to
Congress on a regular
basis for updates on
activities.
Support Agencies
–Congress can have a support
agency, such as the GAO,
study an agency’s activities.
Appropriation
–Those who pay the bills and
provide the money can shape
an agency’s activities.

Independent Council
–Congress may require the
Attorney General go through
the process to appoint an
independent counsel to
investigate charges of
criminal wrongdoing by top
officials if evidence if found
to warrant such an
investigation.
