Chapter 11: The Scope of
Congressional Power
I. Congressional Power
A. Three types of power:
1. Expressed
2. Implied
3. Inherent
B. Strict v. Liberal Constructionist
1. Strict constructionist: Congress should
only exercise those powers:
a. expressed in Constitution
b. implied powers necessary to carry
out expressed powers
2. Liberal constructionist:broad
construction of the powers given to
Congress
a. resulted in a growth of National
Power:
1. Wars
2. Economic crisis
3. National emergency
4. Advances in transportation and
communication
b. Majority of Americans have
supported broad interp. Of
Constitution
II. Expressed Powers of
Money and Commerce
A. The Power to Tax
1. Purpose of Taxes:
a. 90% of gov’t. revenue comes from
taxes levied
b. tax- charge levied by government on
persons or property to meet public
needs.
1. Protective tariff
2. licensing
2. Limits on the Taxing Power
a. limits on taxing power:
1. tax for public purposes not private
benefit
2. May not tax exports
3. Direct taxes must be apportioned
among the states
a. income tax
4. Indirect tax: one first paid by one
person but then passed on to another.
a. cigarettes
B. The Borrowing Power
1. No limits on borrowing or purposes
2. Deficit financing: spend more than
take in and borrow to make up diff.
a. public debt: all of the $ borrowed
by government over the years and not
yet repaid plus interest
3. Balanced Budget Act of 1997: eliminate
deficit spending by 2002
a. 1998-2001 gov’t. reported a surplus
b. 3 factors ending surpluses:
1. Major tax cuts of 2001
2. Economic downturn
3. Onset of war on terrorism
c. 2002 Budget deficit: $159
Billion
C. The Commerce Power: power to
regulate interstate and foreign trade
1. Commerce Clause
2. Gibbons v. Ogden, 1824:
a. brought an extension of federal
authority into many areas of American
life
3. Limits on Commerce Power
a. struck down Gun Free School Zone Act
of 1990- U.S. v. Lopez, 1995
b. 4 limits on Commerce Power:
1. Cannot tax exports
2. Cannot favor ports of one state over
another
3. Cannot require vessels bound from
one state to another to pay duties
4. Could not interfer with slave trade
D. The Currency Power- power to coin
money and regulate its value
1. Paper $ as currency v. coined money
E. The Bankruptcy Power
1. Bankruptcy: legal proceeding in
which bankrupt’s assets are distributed
among those to whom debt is owed
a. frees them from legal responsibility
for debt acquired before
b. fed. Law is broad and excludes
States from process
III. Other Expressed Powers
A. Foreign Relations Power
1. War Powers
a. declare war
b. raise and support armies
c. make rules governing land and
naval forces
B. Other Expressed Powers
1. Naturalization
2. Postal Power
3. Copyrights and Patents
a. Copyright Office in Library of
Congress: good for life plus 70 years
b. does not enforce protections of
copyrights
c. Patent- sole right to manufacture,
use, or sell; good for 20 years.
4. Weights and Measures
5. Power over territories and other areas
a. can acquire property by purchase or
gift
b. eminent domain: power to take
private property for public use
6. Judicial Powers
a. create federal courts
b. define federal crimes and set
punishments for violation
IV. Nonlegislative Powers
A. Electoral Duties
1. 12th Amendment:
a. House- elects President if no one
gets 270
b. Senate- elects Vice-President
1. 2x- 1801 and 1825
2. 25th Amendment- majority vote of
Congress to approve V.P. nominee
a. 2x- 1973 and 1974
#
Office Current Officer
1
Vice President
President of the Senate
Dick Cheney
2
Speaker of the House of Representatives
Nancy Pelosi
3
President Pro Tempore of the Senate Robert Byrd
4
Secretary of State
Condoleezza Rice
5
Secretary of the Treasury
Henry Paulson
6
Secretary of Defense Robert Gates
7
Attorney General
Michael Mukasey
8
Secretary of the Interior
Dirk Kempthorne
—
Secretary of Agriculture
Charles Conner (acting)‡
—
Secretary of Commerce
Carlos Gutierrez (nonnatural)†
—
Secretary of Labor
Elaine Chao (non-natural)†
9
Secretary of Health and Human Services
Michael
Leavitt
10
Secretary of Housing and Urban Development
Alphonso Jackson
B. Impeachment- President, V.P., and all
civil officers
1. House- power to impeach (to accuse,
bring charges)
a. majority vote
2. Senate- power to try and convict
a. 2/3 vote to convict
3. Chief Justice presides over trial
4. Occurred 2x in Presidential History:
a. 1868- Andrew Johnson
b. 1998- Bill Clinton
1. Censure: formal condemnation of
his behavior
c. Richard Nixon- opted to resign on
August 9, 1974