Chapter 11: The Powers of Congress

Where Does Congress’ Power Come From? Article I: Section 8: Powers of Congress Section 9: Powers Denied to Congress If there are any questions of power, the U.S. Supreme Court would tell them what they are not allowed to do…

Powers of Congress Congress has 3 kinds of power: Expressed – directly written in the Constitution Implied – reasonably assumed based on the expressed powers Inherent – nowhere in the Constitution, but always held by national governments

Interpretation There are two major “schools of thought” on how much power Congress should have: Strict vs. Loose interpretation

Interpreting the Constitution Strict Constructionist – believe that Congress should only have the expressed powers and no more limited government Individual liberty is most important Thomas Jefferson

Interpreting the Constitution Liberal Constructionist (living constitution) – believe that we should interpret the Constitution loosely, so that Congress could have more power Support an active, larger government Alexander Hamilton

Strict or Originalist

Loose or Broad Interpretation

Interpretation

I hate you. Get out of my face, Dawg.

Expressed Powers: Section 8 Taxation Congress is given the expressed power to “lay and collect taxes” Tax – charge levied by government on people or property to meet public needs

Two Kinds of Taxes Indirect tax – imposed on one person or business, but paid by the consumers Cigarette Tax, Gas Tax

Direct Tax A tax, such as income tax, that is levied on the income or profits of the person who pays it, rather than on goods or services. Ex: Property tax Direct tax revenue must be paid to states equally according to population

What are the Limits to the Taxing Power? Cannot be for private benefit Cannot tax exports All indirect taxes must be the same across the country

Expressed Powers: Borrowing $ Congress has the power “to borrow money on the credit of the United States” We do this A LOT!!!!!!!!!!!!!!!!!!!! National Debt: 19.3 Trillion dollars

Deficit and Debt Deficit – the amount of money spent over budget that must be borrowed this year

Deficit and Debt Debt – grand total of all money borrowed and still owed to this point, plus interest Debt in 2016 – Over $19,300,000,000,000

Expressed Powers: Commerce Congress has the power to “regulate commerce with foreign nations, and among the several states, and with the Indian tribes This power gets used to do all sorts of other seemingly unrelated things

For Example: Passing the Civil Rights Act of 1964, prohibiting racial discrimination Building highways and freeways Building hydroelectric dams This is all a result of Gibbons v. Ogden, 1824

Gibbons v. Ogden, 1824 New York had given Robert Fulton exclusive rights to operate a steamboat on the Hudson River Fulton gave Ogden a permit to operate the steamboat for him Gibbons had a license from the U.S. government to operate a steamboat in the same area

What are the Constitutional Issues? Whose permit is supreme? What does “commerce” mean?

In to Save the Day… Chief Justice John Marshall!

Gibbons v. Ogden, 1824 The court interpret “commerce” very broadly Virtually all commercial interactions Thus, Congress can regulate just about anything…

Expressed Powers: Currency Currency – coins & paper bills used as money U.S. Currency is now legal tender – the government requires all people to accept it as payment

Expressed Powers: Bankruptcy Congress has the power to “establish uniform laws on the subject of Bankruptcies”

Expressed Powers: Bankruptcy Bankruptcy – person is declared incapable of repaying debts, so all their assets are distributed to the people they owe, and then they are free of debt I’ve lost everything!

Expressed Powers: Foreign Relations Declare war However, they have abdicated the power to wage war to POTUS When ???

How Congress Lost This Power Congress passed the Gulf of Tonkin Resolution, allowing the LBJ to use troops without Congress’ permission Tried to take power back with War Powers Resolution (1973)

Why Would Congress Do This? Congress doesn’t want to accept responsibility for mistakes

Other Expressed Powers Naturalization – setting the rules to become a citizen Postal Power –Establish post offices and post roads

Other Expressed Powers Copyrights and Patents Weights and Measures – making sure they’re uniform nationally

Other Expressed Powers Power over territories – Congress decides whether territories become states or not

Other Expressed Powers Judicial Power – Congress sets up the court system

Other Expressed Powers Eminent Domain – Congress can take private property for public use

Implied Powers Where do implied powers come from? – The Necessary & Proper Clause (A.I S.8 C.18) Tells Congress they can make any laws for carrying out their expressed powers

McCulloch v. Maryland (1819) First case that tested the Necessary and Proper Clause Congress created a national bank, and Maryland hated it- Maryland placed a tax on all national bank transactions to try and put it out of business The United States took Maryland to court.

In to Save the Day… Chief Justice John Marshall!

John Marshall and the Court Say: The Constitution need not expressly empower Congress to create a national bank it is implied through borrowing, currency and commerce powers. A state cannot tax any agency of the federal government b/c of the: Supremacy Clause Question ??????? Strict or liberal constructionist position ?

Non-legislative Powers Propose Constitutional Amendments with 2/3 vote in both houses. (Article V) House of Reps. chooses the president if no candidate gets a majority in the electoral college

Non-legislative Powers Impeachment – means to bring criminal charges against Impeachment requires majority vote in the House

Non-legislative Powers After House votes, trial in Senate begins… Chief Justice acts as judge, Senate acts as jury

Non-legislative Powers A conviction, which would remove the POTUS from office, requires a 2/3 vote in the Senate

Executive Powers Appointment – POTUS appoints officials with majority approval of Senate

Executive Powers Treaties – President makes treaties, but Senate must approve with 2/3 vote John Kerry Secretary of State

Section 9: Powers Denied to Congress 1. The Writ of Habeus Corpus cannot be suspended – -Often called the Writ of Liberty is intended to prevent unjust arrests and imprisonments. It commands that the prisoner (accused) be brought before the court and that the officer show cause or explain why the prisoner should not be released. -The Constitution says that the writ of Habeus Corpus cannot be suspended , unless when in cases of rebellion or invasion where the public safety may require it. (i.e. in war they could suspend this right) -This is considered part of your due process rights

Congress CANNOT pass a: 2. Bill of Attainder Is a law that inflicts punishment without a court trial. In other words, it can’t pass a law that declares a person guilty of a crime and provides for the punishment of that person

Congress CANNOT pass a: 3. Ex-Post Facto Law -a law passed after the fact -For example, a law making it a crime to sell marijuana cannot be applied to someone who sold it before that law was passed