Chapter 11: Powers of
Congress Honors American Gov’t, Nov. 7, 2016
Where do powers come from?
A government’s powers come from 3 sources:
Expressed in the Constitution (see Art. I, sec. 8).
Implied in the Constitution (see Necessary & Proper
clause at the end of Art. I, sec. 8):
No, not the Powers Stork
“To make all Laws which shall be necessary and
proper for carrying into Execution the foregoing
Powers, and all other Powers vested by this
Constitution in the Government of the United
States, or in any Department or Officer thereof.”
Inherent in any gov’t (ex: defend borders, enter into
contracts, etc.).
Let’s talk express powers
But before we can do that, let’s talk “strict” v. “loose”
construction of the Constitution:
• The distinction:
• Strict: narrow, literal interpretation. Often couched in
terms of “original intent.”
• Loose: broad interpretation. A “living” Constitution.
• Major proponents at the founding:
• Strict: TJ (“That gov’t is best which governs least.”)
• Loose: Hamilton (we need an “energetic” fed’l gov’t)
• Loose won. Why? Wars, economic crises, advances in
transportation, communications technology, etc.
Express powers (cont.)
N.B. Other words, like “liberal” or “broad,” also are used to mean loose.
This is not a D or R thing. It depends on your issue. For example:
• Liberal Ds might wish to interpret …
• … the 1st Amendment right to free speech broadly to protect
objectionable speech but
• the 2nd Amendment (right to bear arms) narrowly
• Conservative Rs might wish to interpret…
• … the 2nd Amendment broadly but
• the 1st Amendment narrowly.
Where you stand depends on where you sit.
Might as well debate which
is better (a flash debate)
Let’s start with Justices Breyer and Scalia:
http://www.c-span.org/video/?289637-1/
principles-constitutional-statutoryinterpretation (start at 4:40 to around 10:00)
Your turn:
Resolved: A strict interpretation of the
Constitution is preferable to a loose
interpretation.
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Express Powers of Money and
Commerce: Taxes
• It’s the largest source of federal revenue (like around $3.25 trillion in
2015).
• And it’s a way to protect U.S. businesses (called a “protective tariff”).
• Ex: We impose tariffs on Chinese solar panels and South Korean
steel (in both cases they were accused of “dumping”).
• Can be direct (ex: income tax) v. indirect taxes (ex: taxes on
alcohol).
• Not an unlimited power. For instance:
• Can’t tax churches, for instance (would violate 1st Amendment)
or impose a poll tax.
• Can’t tax exports (‘cuz the Constitution says so).
Express powers: Borrowing
• U.S. has the power to “borrow Money on the credit of
the United States.”
• Ain’t no limit, either in the Constitution or apparently in
our willingness to use this authority.
• Current debt: $19.8 trillion.
• We’ve raised debt “limit” 78 times since 1960 (49
times under R presidents and 29 times under Ds).
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Express powers: Currency
• Currency
• Needed b/c states were issuing worthless money and
forcing merchants to accept it.
• First nat’l bank chartered in 1791, but we didn’t have
“legal tender” until 1863. In interim, many state banks
issued own currency. For instance:
Express powers: Commerce
• The granddaddy of them all when it comes to powers.
• Congress has the power “To regulate Commerce with
foreign Nations, and among the several States, and with the
Indian Tribes.”
• Needed b/c states were bickering and imposing tariffs
• Gibbons v. Ogden (the “steamboat case”) helped flesh this
out.
Non-Commerce/Money Express
Powers
• Foreign relations
• Congress and President share power, but President
primarily responsible.
• President can enter into treaties, but only with advice and
consent of the Senate.
• States have no role; would be chaotic if they did.
War powers
A tension:
• President is the Commander in Chief, but
• Congress (and ONLY Congress) has power to —
• “declare War”;
• appropriate $;
• “raise and support Armies” and “provide and maintain a Navy”;
• make rules governing “the land and naval Forces”; and
• “provide for organizing, arming, and disciplining, the Militia.”
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The War Powers Resolution
Some background:
• LBJ escalates the Viet Nam War.
• Got Congress to authorize force after the Gulf of
Tonkin incident (LBJ to take “all necessary measures
to repel any armed attack against the forces of the US
and to prevent further aggression….”).
• We go from 15k troops to 530k by 1968.
• War ends poorly; Congress not amused.
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WPR (cont.)
• Congress passes the War Powers Resolution. It says
• Don’t send in troops unless Congress has declared war, Congress has
authorized troops, or the US has been attacked.
• President is to consult with Congress before sending troops “in every
possible instance.”
• Troops sent w/no declaration of war? Then “report” to Congress w/in 48
hours.
• Why were troops sent?
• What is estimated scope and duration?
• What is the Constitutional basis?
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WPR (cont.)
• Once “report” is filed, Congress has 60 days to act (+ 30-day
extension if needed). If Congress says no or nothing, then
President is to bring the troops home.
• In other words, Congress must affirmatively approve the
deployment in order for the troops to stay.
• Problem: Presidents never file a “report,” so the clock never
starts.
• Congress doesn’t seem to care all that much.
• And the Supremes treat this as a “political question.”
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Ooh, ooh, time for another
debate!
• Resolved: The War Powers
Resolution strikes the right balance
between legislative and executive
powers and simply needs to be
enforced.
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Other powers
• Copyrights and patents
• Copyrights good for life of author + 70 years;
Patents good for 20 years.
• Some of the more unusual:
Comb-overs: http://www.bpmlegal.com/wbald.html
Comb-overs gone bad:
Patents (cont.):
Birthing babies. Um….
Apparatus for facilitating the birth of a child by
centrifugal force
US 3216423 A
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Eminent domain
• 5th Amendment: “…nor shall private property be taken for
public use, without just compensation.”
• Gov’t can take for all sorts of reasons, including economic
development. See Kelo v. City of New London (2005).
Ms. Kelo’s little pink house:
Property today:
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The implied powers
• The “Necessary & Proper” clause is the key
section.
“The Congress shall have Power to … make
all Laws which shall be necessary and proper
for carrying into Execution the foregoing
[enumerated] Powers….”
• McCulloch v. Maryland the key case.
• But note: Congress still must have some
enumerated power before the N&P clause has any
relevance.
Implied powers (cont.)
• See chart on p. 313 for good summary of what has
been upheld as laws considered necessary and
proper.
• “Appropriating” money (which basically means
approving the spending of money for a certain purpose)
is not an expressed power but clearly Congress must
appropriate money in order to do things like pay for the
military.
The Nonlegislative Powers
Some familiar ground…
• Amending the Constitution
• (proposal by 2/3 vote of both chambers + ratification by ¾ of the
States)
• Impeachment
• (House impeaches, Senate tries)
• Electoral duties
• (House breaks ties in Electoral College w/r/t presidential race;
Senate breaks ties for VP)
Nonlegislative powers (cont.)
…and some ground maybe not so familiar
• Appointments
• Remember “Senatorial courtesy”?
• How frequently do nominees get rejected? Pretty darn frequently (like 29 out of 151
USSC nominees)
• In recent times for the USSC, there was Robert Bork
• Then Doug Ginsberg
• Then Harriett Miers
Nonlegislative powers (cont.)
• Treaties (Senate must provide “advice and consent”
before a treaty is ratified)
• Investigatory powers
• “Nothing focuses the attention like an upcoming oversight
hearing.”
Jerry Hawke, Comptroller of the Currency
• See ongoing Obamacare hearings.
Nonlegislative powers (cont.)
• Friendly questions: http://www.youtube.com/watch?
v=hysEhxMS_G4
• Less friendly questions: http://www.youtube.com/
watch?v=n85nrzoxCX0
• An oversight hearing: See http://www.youtube.com/
watch?v=hWcQEO1OG4Q