Chapter 6 Notes

Constitutional Provisions• The Constitution describes the legislative powers of Congress in Article 1,

Section 8.

• These expressed powers of Congress are sometimes called the enumerated powers.

• The last clause(18) of Section 8 gives Congress the power to do whatever is “necessary and proper” to carry out its other powers.

• Necessary and Proper Clause allows Congress to expand it powers beyond those expressed in the first (17) clauses.

• Because it has allowed Congress to expand its powers as we have grown as a nation, many times it referred to as the “elastic clause”.

• Conflicting interpretations of the elastic clause are reflected in Supreme Court rulings on the powers of Congress

• The correct way to interpret the Necessary and Proper Clause was the subject of a debate between Secretary of the Treasury ALEXANDER HAMILTON and Secretary of State THOMAS JEFFERSON. Hamilton argued for an expansive interpretation of the clause. His view would have authorized Congress to exercise a broad range of implied powers. On the other hand, Jefferson was concerned about vesting too much power in any one branch of government. He argued that "necessary" was a restrictive adjective meaning essential. Jefferson's interpretation would have strengthened STATES' RIGHTS. GEORGE WASHINGTON and JAMES MADISON favored Hamilton's more flexible interpretation, and subsequent events helped to foster the growth of a strong central government.

• McCulloch v. Maryland was the first case in which the U.S. Supreme Court applied the Necessary and Proper Clause. Some constitutional historians believe that the opinion in McCulloch v. Maryland represents an important act in the ultimate creation of the U.S. federal government. The case involved the question of whether Congress had the power to charter a bank.

• Inflation in the years following the WAR OF 1812 compelled President James Madison and Congress to establish a new national bank, which was chartered in 1816. The new bank established branches throughout the states. Many state-chartered banks resented the cautious policies of the BANK OF THE UNITED STATES. Their directors sought assistance from their state legislatures to restrict the operations of the Bank of the United States. Accordingly, Maryland imposed a tax on the bank's operations, and when James McCulloch, a cashier of the Baltimore branch of the Bank of the United States, refused to pay the Maryland tax, the issue went to court.

• The questions before the U.S. Supreme Court involved whether the state or national government held more power. Central to this issue was the Court's interpretation of the Necessary and Proper Clause. The Court held that the state of Maryland could not undermine an act of Congress. The states were subordinate to the federal government. This ruling established that Congress could use the Necessary and Proper Clause to create a bank even though the Constitution does not explicitly grant that power to Congress. Chief Justice JOHN MARSHALL's opinion not only endorsed the constitutionality of the bank, but went on to uphold a broad interpretation of the federal government's powers under the Constitution. The case quickly became the legal cornerstone of subsequent expansions of federal power.

• Powers of Congress are limited by the Bill of Rights and the Constitution

• Congress may not suspend the– Writ of habeas corpus – a court order to determine whether the

accused has been legally detained.– Congress may not pass– Bills of Attainder –laws establishing guilt and punish people

without allowing them a trial– Congress is also prohibited from passing-– Ex post facto laws – laws that make crimes of acts that were

legal when they were committed.

Legislative Powers of Congress

• Taxing & Spending Power

• Commerce Power

• Authorize revenue and appropriations bills-proposed laws to authorize spending money.

• Regulate foreign and interstate commerce

Legislative Powers of Congress

• Other Money Powers

• Sell government securities, coin money and regulate its value; punish counterfeiters; establish standard weights and measures

Legislative Powers of Congress

• Foreign Policy Powers

• Approve treaties

• Declare war

• Create and maintain an army & navy

• Make rules governing land and naval forces

Legislative Powers of Congress

• Providing for the Nation’s Growth

• Naturalize citizens

• Admit new states and pass appropriate laws for treaties

• Pass laws to govern federal property

Legislative Powers of Congress

• Other legislative powers

• Grant copyrights and patents

• Establish a post office and federal courts

Nonlegislative Powers

Power to choose a President

• If no candidate for president has a majority of the votes, the House chooses the president from the three candidates with the most electoral votes. The Senate chooses the VP from the two candidates with the most electoral votes

Removal Power

• Power to impeach-The House of Representatives has exclusive power over impeachment.

• If a majority of the House agrees to impeach a public official it is sent to the Senate for a trial.

• A 2/3 vote of those Senators present is required for conviction and removal from office.

Confirmation Power

• The Senate has power to approve presidential appointments of federal officials.

• Senate approves presidential appointments– Cabinet positions– Regulatory agencies– Federal judiciary

Ratification Power

• Article II, Sec. 2 of the Constitution gives the Senate the exclusive power to ratify treaties between the United States and other nations.

• To ratify a treaty 2/3 of the Senators present must vote for it.

Amendment Power

• Congress shares with state legislatures the power to propose amendments.

• Amendments may be proposed by a two-thirds vote of both houses or by a convention called by legislatures of two-thirds of the states.

Section 2

Investigations & Oversight

Power to Subpoena

• Legal order requiring a person to appear or produce a requested document.

• Witnesses can be arrested if they do not answer a subpoena

Power to require a witness to testify under oath

• Perjury – lying under oath

• Witnesses can be prosecuted for perjury.

• Immunity-is freedom from prosecution for witnesses whose testimony ties them to illegal acts.

Power to hold witnesses in contempt

• Contempt – willful obstruction

• Persons found in contempt of Congress can be arrested and jailed

Legislative Oversight

• Legislative Oversight

–Reviewing the effectiveness of the executive branch carrying out laws that Congress passes.

Ways Congress exercises its oversight powers

1. Requires exec. Agencies to submit reports on their activities

2. Has Congressional support agencies study an executive agency’s work

3. Reviews budgets and determines appropriations

Inconsistencies

• Lack of time

• Lack of cooperation with other federal agencies

• Low priority

• Vague laws

Conflicts between the Congress and the President

• Checks and Balances

– President can veto bills

• Congress can override a presidential veto

• Party Politics

– Conflicting agendas when parties differ between Congress and the President

Conflicts between the Congress and the President

• Organization

– Congress can delay, revise, or defeat a presidential proposal by keeping it in committees.

– The President can refuse to spend money Congress has voted to fund a program, this is called impoundment.

Conflicts between the Congress and the President

• Differing Political Timetables

–Presidents serve a two-term limit

–No term limit for members of Congress

Curbing & Checking the Executive Branch

• National Emergencies Act-In 1978, Congress passed this act that made it where the president no longer possess automatic emergency powers. Presidents must notify Congress when they intend to declare a national emergency.

• Budget Impoundment and Control Act-In 1974, Congress passed the this act. It made it harder for the President to impound funds.

• Use of legislative veto-Between 1932 and 1983-when it was declared unconstitutional-more than some 200 laws have contained some form of legislative veto. This was an effective check on the executive branch.