CHAPTER 11: Powers of Congress

• Pro_29:2 When the righteous

are in authority, the people

rejoice: but when the wicked

beareth rule, the people

mourn.

Chapter 11:1

o We will examine how the Constitution and the Federal system affect the power that Congress exercises.

o We will examine how the controversy of strict versus liberal construction of the Constitution has affected the United States Government.

Limits of Congress:

1. The government in the United

States is limited government.

2. The American system of

government is federal in form.

WHAT CONGRESS CANNOT DO.

o Cannot Create a Public School System.

o Cannot require all people to attend church.

o Set a minimum age for drivers’ licenses, or do a great many other things because Constitution does not give it the power to do them.

WHAT CONGRESS CAN DO:

1. Expressly: expressed powers.

2. By reasonable deduction from

the expressed powers-implied

powers.

3. By creating a National

Government for the United

States, the inherent powers.

STRICT VERSUS LIBERAL CONSTRUCTION:

o Debate between Federalists/Anti-

Federalists continued.

o Much of the debate was over the

powers of Congress.

Strict Constructionists:

o Thomas Jefferson continued to argue

the Anti-Federalist position from the

ratification period; that congress

should be able to exercise only

o (a) its expressed powers and

o (b) those implied powers absolutely

necessary to carry out those

expressed powers.

Strict Constructionists:

o Strict Constructionist wanted the

states to keep as much power as

possible.

o They agreed with Jefferson that

“government is best which governs

least.”

Liberal Constructionists:

o Led by Alexander Hamilton.

o Favored liberal interpretation of the

Constitution and broad construction

of the powers given to Congress.

o This frame of thought won out.

Several Factors why liberal constructionists won out with the

marked growth of national power.

1. Wars

2. Economic Crises

3. National Emergencies

4. Spectacular advances in transportation, communication and real impact on the size and scope of government.

5. Demands of the people themselves for more and more services from government.

Reasons For Liberal Construction to growth of natural power:

o The other branches also favored

broader outlook in their powers

and the people have agreed as

well.

• Do you think the Constitution should be

taken word for word or liberally?

Chapter 11:2: THE EXPRESSED POWERS:

o We will determine the purposes for which Congress was granted each of its expressed powers.

o We will examine the ways in which Congress exercises its expressed powers.

o We will explain the ways in which expressed powers have changed over time.

Express Powers:

o Article 1 Section 8, Clause 3 gives

to Congress the power: “To

regulate commerce with foreign

nations, and among the several

States, and with the Indian tribes.”

THE POWER TO TAX:

o Article I, Section 8, Clause 1

gives Congress the power to lay

and collect taxes.

o Over 90 percent of the money

will come from the various taxes

levied by Congress.

THE POWER TO TAX:

o Tariffs were instituted to

raise foreign goods so to

protect domestic industry.

o Licensing, collect taxes by

granting license for certain

companies to legally

manufacture, sell, or deal in

narcotics.

Limitation to the Power to Tax:

o Congress cannot lay a tax

on church services

because it would violate

first amendment.

Limitation to the Power to Tax:

1. Congress may only tax for public

purposes, not for private benefit.

2. Congress may not tax exports. Thus, customs, duties, tariffs, which are taxes may be placed only on imports.

3. Direct taxes must be apportioned among the States, according to their populations.

DIRECT TAX:

o Is one that must be paid by the

person whom it is imposed.

o For example, on the ownership of

land or buildings, or a capitation

(head or poll) tax.

INDIRECT TAX:

o An indirect tax may be levied at

the same rate in all parts of the country.

o Whether a tax is direct or indirect is, in practical terms, is decided by the Congress and the Supreme Court.

o As a general rule, however, an indirect tax is one first paid by one person but then passed on to another.

INDIRECT TAX:

o It is directly paid by that second

person.

o For example, the Federal tax on cigarettes is paid to the Treasury by the Tobacco company that makes the Cigarettes.

o But that company then passes the tax on to the person who finally buys the cigarettes.

THE POWER TO BORROW:

o There is no constitutional limit on the

amount that congress can borrow.

o Congress has put a statutory ceiling

on the public debt that is, on the

total amount the government has

borrowed and not yet repaid, plus

accrued interest.

THE POWER TO BORROW:

o But that limit has never been much

more than a political gesture.

o Over the years, Congress has adjusted

the ceiling whenever it needed to

borrow beyond that limit.

o Now a balanced budget amendment

has allowed for deficit spending to be

addressed.

THE COMMERCE POWER:

o The power of Congress to regulate interstate and foreign trade--- is as vital to the welfare of the nation as the taxing power.

o As you know, the commerce power played a major role in the formation of the Union.

o The weak Congress created under the Articles had no power to regulate interstate trade and only very little authority over foreign commerce.

THE COMMERCE POWER:

o The critical period of the 1780s

was marked by intense

commercial rivalries and bickering

among the States.

o High trade barriers and spiteful

state laws created chaos and

confusion in much of the country.

THE COMMERCE POWER:

o Gibbons v. Ogden: Court ruling on

the Steamboat case.

o Promoted competition and

allowed for a freed revolutionized

transportation movement of

railroads and the like.

Civil Rights Act of 1964:

o Prohibits discrimination in access

to or service in hotels, motels,

theaters, restaurants, and in

other public accommodations on

grounds of race, color, religion, or

national origin.

Implied Powers:

o Based on the expressed powers to

regulate commerce and to tax,

Congress and the courts have built

nearly all of the implied powers.

o Most of what the Federal

Government does, day to day, and

year to year, it does as the result of

legislation passed by Congress in the

exercise of these two powers.

Implied Powers:

o The commerce power is not unlimited.

o It, too, must be used in accord with all other provisions in the Constitution.

o Thus, Congress could not say that only companies that employ only native-born citizens can do business in more than one State.

o Such an arbitrary regulation would violate the Fifth Amendment’s Due Process Clause.

Four Constitutional Limitations:

1. Forbids Congress the power to tax exports.

2. Prevents Congress from favoring the ports of one state over those of any other in the regulation of trade.

3. Forbids Congress to require that vessels bound to, or from one state, be obliged to enter, clear, or pay duties in another.

4. Slave trade compromise (obsolete after civil war).

• What powers do you think Congress should

have? (List Four).

CURRENCY POWER:

o Post-revolutionary America saw

the need for a uniform currency

after the failures of the Articles of

Confederation.

o Nearly all the Framers agreed on

the need for a single, national

system of hard money.

CURRENCY POWER:

o So the Constitution gave the currency power to Congress, and it all but excluded the States from that field.

o From 1789 on, among the most important of all of the many tasks performed by the Federal Government has been that of providing the nation with a uniform stable, monetary system.

CURRENCY POWER:

o From the beginning, the United

States has issued coins, in gold

(until 1933), silver, and other

metals.

o Congress chartered the First Bank

of the United States in 1791 and

gave it the power to issue bank

notes—paper money.

CURRENCY POWER:

o But those notes were not legal

tender.

o Legal tender is any kind of money

that a creditor must by law accept

in payment for debts.

o Congress did not create a national

power currency, and make it legal

tender, until 1862.

CURRENCY POWER:

o Paper money was at first hard to

accept called greenbacks.

o But the Supreme Court

ultimately decided that the

greenbacks were acceptable.

Bankruptcy:

o A bankrupt individual is one whom a court has found to be insolvent that is, unable to pay his or her debts in full.

o Bankruptcy is the legal proceedings in which the bankrupt’s assets are distributed among those to whom a debt is owed.

o This proceedings frees the bankrupt from legal responsibility for debts acquired before bankruptcy.

Bankruptcy:

o Both the States and the national Government has the power to regulate bankruptcy.

o It is, then a concurrent power.

o In 1898, Congress passed a general bankruptcy law, and today, that law is so broad that it all but excludes the States from the field.

o Most bankruptcy cases are heard in the federal district courts; only a very few are handled by state courts today.

Foreign Relations Power:

o The National Government has greater powers in the field of foreign affairs, than it has in any other.

o Congress shares power in this field with the President, who is primarily responsible for the conduct of relations with other nations.

o States itself are not sovereign and have no standing in international law.

Congressional authority comes from two sources:

1. From various expressed powers—including especially, the several war powers and the power to regulate foreign commerce.

2. From the fact that the United States is a sovereign state in the world community.

o As a nation’s lawmaking body, Congress has the inherent power to act on matters affecting the security of the nation.

WAR POWERS:

o Congress shares power with the

President who is commander and

chief.

The powers of congress are these:

o Only Congress can declare war.

o Power to raise and support armies, to provide and maintain a navy, and to make rules pertaining to the governing of the land and naval forces.

o Congress also has the power to provide for “the calling forth the militia,” and for the organizing, arming, and disciplining of it.

o And Congress has the power to grant letters of marque and reprisals and make rules concerning captures on land, and water.

War Powers Resolution of 1973,

o Congress claimed the power to

restrict the use of American forces

in combat in areas where the state

of war does not exist.

ADDITIONAL POWERS OF CONGRESS:

o Naturalization: Naturalization is the

process by which citizens of one

country became citizens of another.

Postal Power:

o Congress has the exclusive power to “establish post offices and post roads.”

o Power covers the authority to protect the mails, and to ensure their quick and efficient distribution.

o Also empowered to prevent the use of the mail, for fraud or for the carrying of outlawed materials.

o Can’t send firecrackers, or switchblade knives, or alcoholic beverages in the mail.

Copyrights and Patents:

o Copyright is the exclusive right of

an author to reproduce, publish,

and sell his or her creative work.

o That right may be assigned,

transferred by contract to another,

as to a publishing firm by mutual

agreement between the author and

other party.

Copyrights and Patents:

o Copyrights are registered by the

Copyright Office in the Library of

Congress include a wide range of

intellectual properties.

o Patent grants a person the sole right

to manufacture use or sell “any new

and useful art, machine, manufacture,

or composition of manner, or any new

and useful improvement thereof.”

• Intellectual property has been a huge issue in the last decade. With the advent of digital downloading of music and movies, the recording and film industry has been scrambling to try to address rampant piracy of their products. Pirating and bootlegging is a problem. But the counter-argument is that the recording and film industry are greedy as well. For example, for example, in audition shows, the songs that the contestant performs, the artists who wrote it must be paid for the contestants performing. Do you think that’s going to an extreme? Congress is expressly empowered to grant copyrights and patents. How do you think Congress should deal with the problem?

Weights and Measurements:

o The Constitution gives Congress the power to “fix the standards of weights, and measures” throughout the United States.

o The power reflects the absolute need for the usage of accurate, uniform gauges of time, distance, area, weight, volume and the like.

o 1838 Congress set the English system and in 1866, Congress also legalized the metric system.

POWER OVER TERRITORIES AND OTHER AREAS:

o Congress has the power to acquire, manage and dispose of various federal areas.

o That power relates to the District of Columbia and to the several federal territories, including Puerto Rico, Guam, and the Virgin Islands.

o It also covers hundreds of military and naval installations, arsenals, dockyards, post offices, prison facilities, park and forest preserves, and many other federal holdings throughout the country.

POWER OVER TERRITORIES AND OTHER AREAS:

o The Federal Government may acquire property by purchase or gift.

o It may do so, through the exercise of eminent domain, the inherent power to take private property for public use.

o Territory may also be acquired from a foreign state based on the power to admit new states, the war powers, and the Presidential treating-making powers.

o Under international law, any sovereign state may acquire unclaimed territory for discovery.

Judicial Powers:

o Congress has several judicial powers.

o These include the expressed power to

create all of the federal courts in the

federal judiciary below the Supreme

Court and to provide for the

organization and composition of the

federal judiciary.