• Sets up a bicameral legislature• President mentioned as a check on Congress• Details how House and Senate to be set up• Article 1 Section 8 – Interstate Commerce Clause (excuse to

interfere?) and ‘elastic clause’ (left open possibility to legislate on important issues)

What powers does Congress have?

Constitutional Analysis

• Congress receives its powers to act from the Constitution.

• Article I sets up Congress and lists its duties and responsibilities.

• The major job of Congress is to pass legislation.

• However, it also has non-legislative duties and responsibilities.

YOUR TASK:

• Read Article 1.

• Underline all of the powers of Congress that are listed.

• In the margin identify the power as L “legislative” or NL “non-legislative”.

Enquiry Question: What powers does Congress have?

Learning Outcomes

• To describe the enumerated powers of Congress in the constitution

• To analyse the extent to which Congress has increased the reach of its power through expansive reading of the constitution

• To evaluate the impact of these constitutional clauses on the extent of congressional power

Congress• has expressed powers— or those directly

stated (sometimes called enumerated powers)• has implied powers that are reasonably

assumed based on the “necessary and proper” clause.

• is denied certain powers based on Article I, Section 9.

Conflict Over Congress’s Power

Since 1789, Congress has enlarged its powers and, therefore, the powers of the national government. Americans have argued ever since about how

powerful the national government should become.

Strict constructionists believe the Constitution should be interpreted narrowly. The result would be a government with limited powers. The national government could use the expressed powers as much as it wanted, because the Constitution lists those powers. However, the government could use implied powers only when they were absolutely necessary to fulfil expressed powers.

Loose constructionists interpret the Constitution more broadly. They claim the Constitution is a living document that gives the government whatever powers it needs to grow and change with the changing nation. Generally, loose constructionists have had more influence in Congress, in the presidency, and on the Supreme Court. They have succeeded in expanding the powers of the national government.

Landmark Supreme Court Case

McCullochv.Maryland(1819):• Congress set up a national bank in 1816. Strict

constructionists did not believe the Constitution gave Congress this power.

• The Court ruled that Congress had an implied power to set up the bank. The implied power was based on the “necessary and proper” clause.

• The national bank aided Congress in fulfilling its duties to tax, borrow money, create money, and regulate commerce, or business.

• McCulloch McCullochv.Maryland was also important because the Court ruled that federal law took priority over state law.

Implied Powers of Congress

• To outlaw discrimination in movie theatres, restaurants, hotels, and similar places

• To make all laws necessary and proper for carrying out the other powers (Clause 18)

• To govern Washington, D.C. (Clause 17)

• To tax (Clause 1)

• To regulate business between states and business with other nations (Clause 3)

• To punish crimes at sea (Clause 10)

• To establish laws for naturalization (Clause 4)

• To borrow money (Clause 2)

• To punish those who do not pay their taxes

• To provide for, regulate, and call into service a militia (the National Guard) (Clauses 15 and 16)

• To set up post offices (Clause 7)

• To regulate bankruptcies (Clause 4)

• To grant copyrights and patents (Clause 8)

• To print and coin money (Clause 5)

• To draft Americans into the armed forces

• To limit and regulate immigration

• To set up, fund, and regulate the armed forces (Clauses 12, 13, and 14)

• To use tax revenue to support programs such as education and public housing

• To protect those with disabilities

• To punish counterfeiters (Clause 6)

• To declare war (Clause 11)

• To set up a system of federal courts beneath the Supreme Court (Clause 9)

• To set a minimum wage

YOUR TASK: Add each power to the table on your worksheet “Type of Legislative Powers” to show the expressed and implies powers of Congress with respect to

powers relating to money, commerce, military and national defence or other types of legislative powers.

Legislative Powers of Congress

• Congress has the power to authorize the creation of money.• The money powers give Congress the power to tax and

appropriate, or authorize the spending of, the income from taxes. Because of its tax-and-spend powers, Congress has a great deal of control over the nation’s policies. Congress must approve all funding for every program that the federal government sets up.

• All bills that raise money for the government begin in the House. The Framers set up this system on purpose. Representatives are elected every two years. As a result, the Framers thought they would be more careful to follow the wishes of voters.

• In order to pay for programs, Congress passes appropriations bills. Requests to fund programs usually come from the president. Each year, the president sends a budget proposal to Congress. Both houses review the proposed budget. Committees hold hearings to determine how much they think the executive departments need.

Congressional Powers: Money

• Commerce is the buying and selling of goods and services.

• The Constitution gives Congress the power to regulate commerce between states and with other nations.

• However, over the years, Congress has enlarged the meaning of commerce. Today, commerce means “any business that crosses state lines”

• For example, Congress regulates banking, television and cable, clean air, and working conditions.

Congressional Powers: Commerce

Landmark Supreme Court Case

Heart of Atlanta Motelv.United States(1964):• Congress passed the Civil Rights Act of 1964 to ban

discrimination in restaurants, hotels, motels, and jobs.

• The owner of the Heart of Atlanta Motel sued to have the law declared unconstitutional.

• The owner claimed that it was a local business. • However, the motel advertised on interstate

highways and attracted travellers from out of state. • The Supreme Court ruled that the motel was part of

interstate commerce. The Civil Rights Act was declared constitutional.

Interstate Commerce

• Congress and the president share military and national defence powers. T

• he president is commander in chief of the armed forces. • However, he must ask Congress to declare war. • Congress has declared war five times in U.S. history.• Yet, U.S. troops have fought in more than 200 undeclared

wars. • In 1973, Congress attempted to get back its power to

declare war. • It passed the War Powers Act. • A president must notify Congress within 48 hours if he

sends U.S. troops into battle. • Congress must approve the use of troops in a war zone for

more than 60 days.

Congressional Powers: Defence & Military

• The Constitution gives Congress six other legislative powers.

• Clause 18 is the all-important “necessary and proper” clause.

• The other five expressed powers deal with particular topics.

• Copyrights protect the rights to their works of writers, artists, and composers for a period of time.

• Patents enable inventors to control how their inventions are manufactured and sold.

• Congress was given the power to set up all federal courts under the Supreme Court in Clause 9.

• Clause 7 allows Congress to set up the post offices, Clause 4 to set laws for citizenship, and Clause 17 to govern Washington, D.C.

Congressional Powers: Other Powers

YOUR TASK: Read the handout “Non-Legislative Powers of Congress”. This table lists the powers and then explains the

duties of each house with respect to each power.

Non - Legislative Powers of Congress

• The House and the Senate have certain non-legislative powers.

• These are powers that are not related to the passing of laws.

• In most cases, the House and the Senate have separate duties in fulfilling these powers.

Learning Outcomes

• To describe the enumerated powers of Congress in the constitution

• To analyse the extent to which Congress has increased the reach of its power through expansive reading of the constitution

• To evaluate the impact of these constitutional clauses on the extent of congressional power

How has congressional power expanded?

YOUR TASK:Read the handout “The Reach of Congressional Power”.Consider the issues:• What does it mean to be a

government of enumerated powers?

• How should Article I's "Necessary and Proper Clause" be construed?

In pairs, consider the discussion questions and prepare notes to aid you in discussion.

Further Reading on Landmark Cases:

McCulloch v Maryland (1819)http://law2.umkc.edu/faculty/projects/ftrials/conlaw/mcculloch.htmlUS v Gettysburg (1896)http://law2.umkc.edu/faculty/projects/ftrials/conlaw/gettsburg.htmlUS v Comstock (2010)http://law2.umkc.edu/faculty/projects/ftrials/conlaw/comstock2010.html

Learning Outcomes

• To describe the enumerated powers of Congress in the constitution

• To analyse the extent to which Congress has increased the reach of its power through expansive reading of the constitution

• To evaluate the impact of these constitutional clauses on the extent of congressional power

• Sets up a bicameral legislature• President mentioned as a check on Congress• Details how House and Senate to be set up• Article 1 Section 8 – Interstate Commerce Clause (excuse to

interfere?) and ‘elastic clause’ (left open possibility to legislate on important issues)

What powers does Congress have?

Constitutional Analysis

YOUR TASK:

• Return to your annotated copy of Article 1.

• Review your annotations in the margin to identify the powers as L “legislative” or NL “non-legislative”.

• Now highlight the powers to reflect the different categories of legislative powers; money powers, commerce powers, military and defence powers, other legislative powers

• Place an * next to the necessary and proper clause.

• Annotate this with a clear explanation of the impact of this clause on congressional power.

Homework

Application Task:

Create a Venn Diagram showing the exclusive and concurrent powers of the Senate and House of Representatives.

Flipped Learning Preparation Task:

Powers of Congress (Bennett p185-189)

Stretch & Challenge Task

Article: The Necessary and Proper Clause