Chapter 11Powers of Congress

Section 1: The Expressed Powers of Money and CommerceSection 2: The Other Expressed PowersSection 3: The Implied PowersSection 4: The Non-legislative Powers

Constitutional or Unconstitutional? SCENARIO: Congress called up the National Guard for extended duty in Iraq.

Where do you see any evidence in Article I that would support this?

Delegated Powers Delegate (verb): To commit or entrust to another

Delegate (noun): A person empowered to act in the interest of another.

• The Constitution grants Congress numerous powers which can be categorized as follows:

1. Powers: Powers that are explicitly worded in the Constitution (explicit: clearly expressed or defined)

2. Powers: The Framers could not include express provisions for every situation that may arise in the modern world, so the Necessary and Proper Clause (a.k.a. The Elastic Clause) was made part of the Constitution to address a multitude (a very large number) of situations.

3. Powers: Powers that arise from having created a national government for the United States.

Expressed Powers continue to be defined by Congress and the Court.

• The U.S. Constitution’s definition of expressed powers is very (general in scope), which means that the written description can be interpreted in different ways.

• The U.S. Supreme Court is the “umpire” and what the Constitution says. The Supreme Court therefore which actions taken by government are with the U.S. Constitution. • Most of what the federal government does as the result of legislation enacted by

Congress relates to the power and the power, and the of both.

Do you REMEMBER? Two of the six principles of the U.S. Constitution are checks and

balances and separation of powers.

Expressed Powers: The Commerce Clause

Example: The Clause in Article 1, Section 8 “The Congress shall have the power…to regulate with foreign Nations , and among the several States, and with the Indian Tribes”.This Commerce Clause is primarily responsible for building the States out of a weak than any other provision of the Constitution.

Do you REMEMBER? The inability to respond to commercial rivalries and relations between the States contributed to the failure of the Articles of Confederation.

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of the Commerce Power by the U.S. Supreme Court:Gibbons v. Ogden (1824) This is the first case the U.S. Supreme Court decided which involved the Clause. The ruling in this case was that a monopoly given to a steamboat operator by the state of New York conflicted with the authority given Congress to regulate commerce. In doing so, the Court rejected the argument that commerce meant only the buying and selling goods, and interpreted the power to include the transportation on people and goods.Freed from restrictive regulations as a result of the ruling, there was then rapid development of steam navigation (including trains), which ultimately revolutionized within the U.S. New England Historical Society

of the Commerce Power by the U.S. Supreme Court:United States v. Lopez (1995)In this case, the U.S. Supreme Court an Act passed by Congress that made it a federal crime for anyone other than a police officer to possess a firearm in or around a school. The reason was that there was no useful connection between guns at school and state commerce, so the Commerce Clause did _____ justify the Act. The Court ruled that the power to regulate guns at school was held by the _________.

Alabama has laws in place to restrict gun possession in an around schools:CODE OF ALABAMA:http://alisondb.legislature.state.al.us/alison/codeofalabama/1975/coatoc.htm

Do you REMEMBER? The six principles of the U.S. Constitution include limited government, judicial review and federalism.

Express of the Commerce Power by the U.S. Constitution:The Constitution also expressly limits the Commerce Power as follows:Article ____, Section _____, Clause ___: [Congress] cannot tax __________.Article ____, Section ______, Clause ___: [Congress] cannot favor the ports of one State over those of any other in the ____________of trade.Article ____, Section ______, Clause _____: [Congress] cannot require that “vessels bound to, or from, one State, be obliged to enter, clear, or pay Duties in another”.

Constitutional or Unconstitutional?

SCENARIO: Congress imposed a high tax on cigarettes to discourage citizens from smoking.

Where do you see any evidence in Article I that would support this?What about here:http://www.cbsnews.com/htdocs/tobacco/framesource.html

Expressed Powers: The Tax Power

• Do you remember one reason the Articles of Confederation failed was an inability to tax? The Constitution corrected that in Article I, Section 8:

“To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defense and general welfare of the United States…”

• Taxes may be _________or indirect. If indirect, it is first paid by another person, but then passed on to another (example: federal tax on cigarettes)• Licensing is a form of ___________.• Congress may not tax exports.

Constitutional or Unconstitutional?Congress raised the debt limit for the United States.

Where do you see any evidence in Article I that would support this?

Expressed Powers: The Borrowing Power• Article I, Section 8, Clause 2 gives Congress the

power “to borrow money on the credit of the United States”. The Treasury does the actual ____________by issuing Treasury Notes (T-bills) for short-term borrowing and bonds for long-term purposes. These are essentially IOUs for which government agrees to pay that amount, plus interest, on a certain date.• The federal government has operated for years by

spending more than it takes in each year, and then borrows to make up the difference. This is called __________ ______________.

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Image from the New York Daily News

Expressed Powers: The Bankruptcy Power & The Currency Power

Bankruptcy refers to the legal proceeding (see chart p. 302) in which the ________of a bankrupt individual or entity (a__________) are distributed among those to whom a _______is owed (a creditor). The proceeding frees the individual from debts acquired before bankruptcy. Although the regulation of bankruptcy is a _________ power (held by both the federal and state governments), almost all bankruptcy cases are held in federal district courts (see Article I, Section 8, Clause 4).

_________is money in any form when it is used for exchange. __________refers to any kind of money that a creditor must accept in payment for debts. Congress was given the power to coin money [and] regulate the Value thereof (Article I, Section 8, Clause 5), but the U.S. Supreme Court had to determine through several cases whether or not the issuance of paper money as legal tender was a proper use of the ___________power. The U.S. Supreme Court also held that this is power is _________from both the borrowing and the war powers.

Assets Liabilities Balance

$2,000.00 $6,000.00 $4,000.00

BALANCE SHEET

OTHER Expressed Powers: War Powers

The Constitution divides the war powers between Congress and the President. The issue of how a war is conducted is still evolving as can be seen from the following timeline (p. 317):

Do you REMEMBER? One of the functions of government is to provide protection to the population and, in order to do this, a nation must have sovereignty that is recognized by other nations.

1770s-1780s

Continental

Congress acts as

the authority over the armed forces

1969 The War

Powers Resolution limits

the President’

s ability to send troops abroad without

Congressional

approval

2001 President George W.

Bush requests military

authority to combat

terrorism; Congress approves force only

against those involved in the 9/11 attacks.

Constitutional or Unconstitutional?Congress passed a law that required telephone companies to give customer records to the FBI to search for terrorists?

Where do you see any evidence in Article I that would support this?What about here:http://www.nytimes.com/2015/05/08/us/nsa-phone-records-collection-ruled-illegal-by-appeals-court.html?_r=0

OTHER Expressed Powers: © Article I, Section 8, Clause 8: To promote the Progress of Science and useful Arts, by securing for limited times to Authors and Inventors the exclusive right to their respective writings and discoveries.

A _________is the exclusive right to _________________creative work. A copyright is registered with the Library of Congress and lasts for the life of the author plus 70 years. Copyrights are enforced by a holder filing a lawsuit in federal court.A _________grants a person the right to _________________“any new and useful process, machine, manufacture, or composition of matter, or any new or useful improvement thereof”. A patent lasts for 20 years. Many pharmaceutical companies hold patents on drugs that are researched and developed by that company. Postal Service: mail is one of the oldest of all governmental functions. Benjamin Franklin was the first Postmaster General of the United States and is known as the father of the postal system.

OTHER Expressed Powers: TerritoriesCongress has the power to acquire, manage and dispose of various federal__________, as well as parts of the United States that are not admitted as states. For example, Puerto Rico and the U.S. Virgin Islands are U.S. territories. https://www.google.com/maps/@18.1986249,-66.3547439,10z. Guam became a territory in 1950 due to World War II and the need for an air and naval base from which to attack Japan. https://www.google.com/maps/place/Guam/@13.4508123,144.7888184,3z/data=!4m2!3m1!1s0x671f76ff930f24ef:0x5571ae91c5b3e5a6 Territory may be acquired from a foreign state as a result of the exercise of the power Congress holds to admit new States (Article IV), the war powers, or the treaty-making power of the executive (Article II).The Federal Government may also acquire property through the exercise of______________, which is the ________power to take private property for public use. The _____________ Clause of the 5th Amendment requires that notice must be given to the owner and a fair price must be paid to the owner.

OTHER Expressed Powers: Naturalization, Weights and Measures

http://www.uscis.gov/sites/default/files/USCIS/files/M-1051.pdf Article I, Section 8, Clause 4 gives Congress the exclusive power “to establish an uniform Rule of Naturalization”. ________________is the process by which citizens of one country become citizens of another country. Why do you think Step 10 is included in the information on becoming a U.S. Citizen (linked document)? Can you identify the specific Amendment for the rights that are listed?

Article I, Section 8, Clause 5 gives Congress the power to “fix the Standard of Weights and Measures” throughout the United States. Why do you think there would be a need for uniformity?

Implied Powers: The debate over the meaning of the Necessary and Proper Clause• The debate between the Anti-Federalists and the Federalists did not

end with the Constitution’s ratification, but rather spilled over into a debate over the ____________of the Necessary and Proper Clause.• Thomas Jefferson, an Anti-Federalist, of course argued “that

government is best which governs least” (p. 313). He was a __________ _____________of the express powers of the U.S. Constitution• Alexander Hamilton, a Federalist, of course argued that the United

States needed an energetic government (p. 314). He was a ___________constructionist of the U.S. Constitution.

Implied Powers: Supreme Court weighs in on the debate over the meaning of the Necessary and Proper Clause

The debate over the meaning of the Necessary and Proper Clause is still ongoing, and cases continue to be argued before the U.S. Supreme Court on the basis of whether or not an action falls under the __________power of Congress. The first case which called the clause into question involved the Bank of the United States which Congress had established in 1791. The Supreme Court held that this was an _________power held by Congress. Read the arguments from either side on p. 311, and watch here:

McCulloch v. Maryland: http://www.pbslearningmedia.org/resource/bf09.socst.us.const.nation.mccmary/mcculloch-v-Maryland-1819

Examples of Implied Powers: Education• The Civil Rights Act of 1964 which “directed the attorney general to bring

court actions to eliminate race-based and other discrimination in the nation’s public schools and colleges” (p. 314)• Title IX of the Education Amendments to the Civil Rights Act “forbids

gender discrimination in federally funded education…Since 1970, the number female high school athletes has increased from fewer than 300,000 to more than 3 million. (p. 314)• The Individuals with Disabilities Education Act (IDEA) “is a federal law

designed to prevent discrimination and enable students with disabilities to participate fully in all aspects of education…People with disabilities are attending postsecondary institutions with greater numbers”. (p. 314)

Non-legislative Powers Power to __________amendments to the U.S. Constitution. (Article V)

Power to __________a President in rare circumstances (if no candidate receives a majority of electoral votes).

Power of ___________: Congress has the power to investigate any matter for purposes of (1) gathering information as it relates to legislation; (2) oversee the various agencies of the executive branch; (3) focus public attention on some particular matter; (4) expose questionable activities of some public official; and (5) promote the particular interests of some members of Congress.

Example: The Benghazi investigation involving Hilary Clinton…which of the above purposes would be involved in this investigation? http://www.cbsnews.com/news/benghazi-report-from-republican-led-house-panel-debunks-allegations/

Power of ____________: only the House of Representatives can bring charges of impeachment. The Senate then acts as the judge in an impeachment trial. Impeachment is expected for only serious criminal offenses, not political disagreements. President Richard Nixon resigned due to almost certain impeachment. President Andrew Johnson narrowly escaped impeachment (by one vote)

http://law2.umkc.edu/faculty/projects/ftrials/Clinton/clintonstatements.html#House_Vote_to_Impeach