Overview of Congressional Powers
• Congress has three main types of powers:
– Expressed
• Located in Article I/Section 8/Clauses 1-18
• 27 listed powers
• Example:
– Declare War
– Print & Coin Money
– Implied
• Not located in the Constitution
• Come from interpretation of the Elastic Clause (Article 1/Section
8/Clause 18
• Used to carry out the Expressed Powers
• Example:
– Create a draft
– create the Federal Reserve Bank
– Inherent
• Powers Congress has because it is the national
legislature
• Example:
– Regulate immigration
Taxation Powers
• Article I/Section 8/Clause 1 grants Congress the power to “lay and
collect taxes, duties, imports, & excises…”
• Federal government takes in excess of $2 trillion per year
– 90% comes from taxes
• Tax: a charge levied by the gov on persons or property to raise
money to meet public need
• Types of Taxes:
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Protective Tariff:
a tax on goods imported into the United States from a foreign country
Imposed to protect American industry from foreign competition
Direct Tax:
• a tax paid directly to the government by the
individual
• Examples: Income Tax, Property Tax
– Indirect Tax:
• A tax paid by one person then passed on
to another
• Examples: sales tax, luxury tax (furs/jewelry,
tax (cigarettes/alcohol)
sin
Limits on Tax Powers
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Some things Congress cannot tax:
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Cannot tax religious institutions for providing services
Cannot levy a poll tax (tax to vote)
Cannot tax exports, American goods going to foreign
countries
Four Guidelines to Congressional Taxes:
1. Congress can only tax for public benefit
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Cannot tax to make money
Tax revenues used to pay for public services
2. Congress cannot tax exports
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Cannot tax goods going from the US to foreign countries for
sell
Designed to help encourage the sell of US goods in other
countries
3. Direct taxes must be apportioned among the states based on
population
4. Duties, Imports, & Excises must be uniform among all states
Borrowing Power
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Article 1/Section 8/Clause 2 gives
Congress the power to borrow
money
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Does not set a limit on the amount the
US can borrow
Deficit Financing:
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US spends more than it makes
Gov must borrow to pay for provided services
Public Debt is the total amount of the money borrowed
& the accumulated interest
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1999 - $5.5 Trillion
2005 – $7.5 trillion
US “made” money (had a surplus instead of a deficit)
1998-2002
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due to strict limits on borrowing, increased taxes, &
strong economy
Returned to deficit in 2002/2003 due to economic slowdown, tax cuts, & war on terrorism in Afghanistan & Iraq
Commerce Power
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Article 1/Section 8/Clause 3
give Congress the power to
regulate interstate & foreign trade (commerce)
“Commerce” was originally defined as the
buying & selling of goods
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Gibbons v. Ogden (1924) Supreme Court ruled that
Commerce is the “intercourse” (process) of trade
New Interpretation allows Congress to regulate many
areas of business
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Examples Include
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Transportation systems
International & Interstate trade
Regulation of employee safety
Many implied powers come from interpreting the
Commerce Clause
Anti-Discrimination acts/laws fall into this category
Limits on Commerce Power
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Four limitations on Commerce:
1. Cannot tax exports
2. Cannot favor one state over another in
regulating trade
3. Cannot require “vessels” from one state to pay a
tax to enter another state
4. Cannot interfere with the slave trade until 1808
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during Constitutional Convention, slavery & slave trade very
controversial
Most framers agreed that slave trade should end, so set a
date for ending foreign slave trade in 1808
Slaves were still able to be traded within the USA until 13th
Amendment (1865)
Bankruptcy & Currency Power
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Article I/Section 8/Clause 4 gives Congress the power to regulate
bankruptcy
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Article 1/Section 8/Clause 5 grants Congress the power to coin &
regulate money
Congress created the Bank of the United State in 1791
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Bankruptcy is a ruling that a person is unable to pay his/her debts
The person’s assets are take & given to pay off his/her debt
Most bankruptcy hearings are heard in federal district courts
Goal to provide the US w/ a uniform & stable money system
Issued paper money (bank notes)
The “green backs” were not legal tender & people were not required to
take them
Today, US had the Federal Reserve System
Late 1880s, Supreme Court ruled that the US can issue paper legal
tender
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Series of cases which questioned the validity of paper money
Banks prohibited of creating own bank notes
Today, paper money is the main type of currency in use
Foreign Diplomacy & War Powers
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Foreign Diplomacy:
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Shared w/the President
Comes from two sources:
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Examples include:
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Power to declare war
Power to regulate international commerce
Enter into treaties with foreign nations
Regulate international trade
Set immigration policies
Take military action
War Powers:
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Eight of the expressed powers deal with the military & defense
Most are shared with the President
Examples:
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Declare war (only Congress can declare war)
Create & maintain the Armed Forces
Make rules governing land & naval forces
Create & maintain a militia & can activate the militia (National Guard)
Make & enforce laws governing US ships on the seas
War Powers Act of 1973 gave Congress greater military power by limiting
the President’s ability to deploy troops
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President can deploy troops for a maximum of 60 days w/o Congressional approval
Naturalization & Postal Power
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Naturalization Power:
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Article I/Section 8/Clause 4 grants Congress the
authority to determine who can become a
US citizen
Includes the power to regulate immigration
Postal Power:
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Article I/Section 8/Clause 7 gives Congress the
power to create a Post Office & the roads for postal routes
Post Office Facts:
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Over 38,000 post office branches in US
Employs over 750,000 people
Processes 200 billion pieces of mail per year
Post Roads include any method of transportation that is used to
transport mail including: auto-routes, airplanes, trains, &
shipping
It is a FEDERAL crime to tamper with or prohibit the mail
Other Powers
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Copyrights, Trademarks, & Patents:
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Congress has the power to protect a person’s
right to their ideas & inventions by issuing patents & copyrights
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Copyright: protects the right of an author to reproduce, publish,
sell, etc their works (includes written works, newspapers, music,
scripts, & other media)
Trademark: protects logos & images
Patent: protects inventions
Standard Weights & Measures:
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Congress has the right to set the US measurement system
Maintains official time for the US (www.time.gov)
Judicial Powers:
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Congress can over rule the presidential
nominations for the federal courts & can
impeach judges/justices
Implied Powers
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Article I/Section 8/Clause 1-18 gives
Congress the right to make any law
necessary to the carrying out of its expressed
powers
Right to have implied powers comes from two major
rulings:
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Alexander Hamilton & the 1st National Bank
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Hamilton, Sec. of Treasury, wanted to create a National Bank
Argued that it was legal under Article I b/c it was necessary to the
carrying out of 4 expressed power
Congress & Supreme Court Agreed
McCulloch v. Maryland
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Occurred when Maryland wanted to charge a tax on the 2nd
National Bank b/c believed bank was unconstitutional
Manager of Bank, McCulloch, refused/tried & convicted in MD
Court
McCulloch appealed to the Supreme Court, arguing that the
National Bank was legal
Supreme Court agreed that the right to create a national bank was
implied in the expressed currency, commerce, & taxing powers
Implied Powers Examples:
Expressed Power
Implied Power
Levy & collect taxes
•Create the IRS
•Punish tax evasion
•Regulate the licensing to sell certain items
(liquor license)
•Outlaw the sell of certain items
To borrow money
•Establish the federal reserve system of banks
Establish Naturalization Laws
•Regulate immigration
To raise an army & navy
•To draft men/women into the military
To regulate commerce
•Set a minimum wage
•Outlaw workplace discrimination
•Oversee workplace safety
Establish post offices
•Protect against mail fraud
•To prohibit the shipping of certain items via mail
Nonlegislative Powers I:
Constitutional Amendments
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Article V gives Congress the
power to propose a Constitutional
Amendment w/a 2/3 vote in both
houses
Congress has proposes 33
Amendments
Congress can also call up a
national Constitutional
Convention if 2/3 of state
legislatures agree (never used)
Most recent proposals include:
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Require a balanced budget
Outlaw flag burning
Outlaw abortion
Prohibit same-sex marriage
Electoral Duties
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The House may elect the President
if there is no clear winner
– Each state receive 1 vote
– Chosen from 3 highest contenders in
the electoral vote
– Occurred twice (Jefferson & JQ
Adams)
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The Senate may choose the VicePresident if there is no clear
winner
If the President must replace the
VP, Congress must approve the
nomination by a 2/3 majority in
both chambers
– Used twice: Gerald Ford (1973) &
Nelson Rockefeller (1974)
Nonlegislative Powers 2:
Impeachment
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House has the authority to impeach gov. officials for certain acts:
– Conviction of treason
– Conviction of Giving or Receiving Bribes
– Conviction of other “high” crimes or misdemeanors
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To impeach means to accuse, it is not a verdict of guilt
– Must have a majority ruling in the House
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The Senate has the power to judge (try) the impeachment cases
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Requires a 2/3 vote to convict
The Chief Justice acts as the presiding judge if a President is under trial
The penalty of a conviction is removal from office
An official may be remanded (given) to the regular courts if crime warrants it
Two Presidents have been impeached / None have been convicted
– Andrew Johnson
• Replaced A. Lincoln following his assignation
• Charged with violating the Tenure of Office Act
– William “Bill” Clinton
• Charged with perjury (lying under oath) & obstruction of justice
• Ruling was that although he acted in a “deplorable and amoral” manner, no high crime was
committed
– Richard Nixon resigned prior (before) to being impeached for his part in the
Watergate scandal
Nonlegislative Powers 3:
Presidential Appointments
• All major presidential
appointments to office must
be approved by the Senate
• Requires a majority vote
• The Approval Process:
Treaties
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– President gets approval from
the Senators who represent
the state the nominee is from
(Senatorial Courtesy)
– Nominees are sent to the
appropriate sub-committee for
approval
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– Sub-committee holds hearings
to gather evidence to make
recommendation
– Sub-committee recommends
nominee to the Senate floor
– Nominee voted on by the
Senate
Any treaty the President enters into
must be approved by the Senate
President frequently consults with
the members of the Senate Foreign
Relation committee before drafting a
treaty
Senate can do three things to a treaty
offered by the President
1. Accept the treaty as written
2. Amend the treaty
3. Reject the treaty
Investigatory Power
Congress can make inquiries for
certain reasons
– To gather information to make a
decision
– Oversee how legislation is carried
out in by the executive agencies
– Focus public attention on certain
issues
– Expose questionable activities of
the gov.