Powers of the United States Congress
Powers of the United States Congress are implemented by the United States Constitution, defined by rulings of the Supreme Court, and by its own efforts and by other factors such as history and custom. It is the chief legislative body of the United States. Some powers are explicitly defined by the Constitution and are called enumerated powers; others have been assumed to exist and are called implied powers.
Article I of the Constitution sets forth most of the powers of Congress, which include numerous explicit powers enumerated in Section 8. Constitutional amendments have granted Congress additional powers. Congress also has implied powers derived from the Necessary and Proper Clause of the Constitution.
Congress has authority over financial and budgetary matters, through the enumerated power 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. The Sixteenth Amendment, ratified in 1913, extended power of taxation to include income taxes. The Constitution also grants Congress exclusively the power to appropriate funds. This power of the purse is one of Congress' primary checks on the executive branch. Other powers granted to Congress include the authority to borrow money on the credit of the United States, regulate commerce with foreign nations and among the states, and coin money. Generally both Senate and House have equal legislative authority although only the House may originate revenue bills and, by tradition, appropriation bills.
The Constitution also gives Congress an important role in national defense, including the exclusive power to declare war, to raise and maintain the armed forces, and to make rules for the military. Some critics charge that the executive branch has usurped Congress's Constitutionally-defined task of declaring war. While historically presidents initiated the process for going to war, they asked for and received formal war declarations from Congress for the War of 1812, the Mexican–American War, the Spanish–American War, World War I, and World War II, although President Theodore Roosevelt's military move into Panama in 1903 did not get Congressional assent. Presidents have initiated war without Congressional war declarations; Truman called the Korean War a "police action" and the Vietnam War lasted over a decade without a declaration of war. In 1970, Time magazine noted: "All told, it has been calculated, U.S. presidents have ordered troops into position or action without a formal congressional declaration a total of 149 times" before 1970. In 1993, one writer noted "Congress's war power has become the most flagrantly disregarded provision in the Constitution," and that the "real erosion (of Congressional authority to declare war) began after World War II." President George H. W. Bush claimed he could begin Operation Desert Storm and launch a "deliberate, unhurried, post–Cold War decision to start a war" without Congressional approval. Critics charge that President George W. Bush largely initiated the Iraq War with little debate in Congress or consultation with Congress, despite a Congressional vote on military force authorization. Disagreement about the extent of congressional versus presidential power regarding war has been present periodically throughout the nation's history.
Congress also has the power to establish post offices and post roads, issue patents and copyrights, fix standards of weights and measures, establish courts inferior to the Supreme Court, and "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." Article Four gives Congress the power to admit new states into the Union.
One of the foremost non-legislative functions of the Congress is the power to investigate and to oversee the executive branch. Congressional oversight is usually delegated to committees and is facilitated by Congress' subpoena power. Some critics have charged that Congress has in some instances failed to do an adequate job of overseeing the other branches of government. In the Valerie Plame Wilson episode sometimes known as the Plame affair, some critics, including Representative Henry A. Waxman, charged that Congress was not doing an adequate job of oversight in this case. Other critics charge Congress was lax in its oversight duties regarding presidential actions such as warrantless wiretapping, although others respond that Congress did investigate the legality of decisions by President George W. Bush involving such matters.
Among the powers specifically given to Congress in Article I Section 8, are the following:
1.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; but all duties, imposts and excises shall be uniform throughout the United States;
3. To regulate commerce with foreign nations, and among the several states, and with the Native American tribes;
6. To provide for the punishment of counterfeiting the securities and current coin of the United States;
7. To establish post offices and post roads;
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;
9. To constitute tribunals inferior to the Supreme Court;
12. To raise and support armies, but no appropriation of money to that use shall be for a longer term than two years;
13. To provide and maintain a navy;
14. To make rules for the government and regulation of the land and naval forces;
16. To provide for organizing, arming, and disciplining, the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress;
17. To exercise exclusive legislation in all cases whatsoever, over such District (not exceeding ten miles (16 km) square) as may, by cession of particular states, and the acceptance of Congress, become the seat of the government of the United States, and to exercise like authority over all places purchased by the consent of the legislature of the state in which the same shall be, for the erection of forts, magazines, arsenals, dockyards, and other needful buildings.
In addition to the above, Congress is granted a power by Article III Section 3: “The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.” Congress is also granted a power by Article IV Section 3: “The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State.”
Other congressional powers have been granted, or confirmed, by constitutional amendments. The Thirteenth (1865), Fourteenth (1868), and Fifteenth Amendments (1870) gave Congress authority to enact legislation to enforce rights of all citizens regardless of race, including voting rights, due process, and equal protection under the law. Generally militia forces are controlled by state governments, not Congress.
Implied powers and the commerce clause
Congress also has implied powers, which derive from the Necessary and Proper Clause of the Constitution and permit Congress "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." Broad interpretations of this clause and of the Commerce Clause, the enumerated power to regulate commerce, in rulings such as McCulloch v Maryland, have effectively widened the scope of Congress' legislative authority. For example, in Wickard v Filburn it was held that the Section 8 power “To regulate commerce…among the several states” gave Congress the authority to limit the amount of wheat that a farmer could grow in order to feed animals on his own farm, even though this activity was not commerce and was not interstate, because such activities by private individuals had a substantial economic effect on interstate commerce in wheat, even though only indirectly.
- "Constitutional Authority Statements and the Powers of Congress: An Overview" (PDF). Congressional Research Service. Archived (PDF) from the original on 2018-06-06. Retrieved 2019-01-13. Cite uses deprecated parameter
- Davidson (2006), p. 18
- editorial staff (May 30, 2008). "Congress and the Dollar". New York Sun. Retrieved 2010-09-11.
...Article One, Section Eight of the Constitution. ... the founders of America delegated to the Congress the power to, among other things, "coin money, regulate the value thereof, and of foreign coin, and fix the standard of weights and measures."
- John V. Sullivan (July 24, 2007). "How Our Laws Are Made". The Library of Congress. Retrieved 2010-09-11.
Unlike some other parliamentary bodies, both the Senate and the House of Representatives have equal legislative functions and powers with certain exceptions. For example, the Constitution provides that only the House of Representatives may originate revenue bills. By tradition, the House also originates appropriation bills. As both bodies have equal legislative powers, the designation of one as the upper House and the other as the lower House is not applicable.Italic or bold markup not allowed in:
- KATE ZERNIKE (September 28, 2006). "Senate Passes Detainee Bill Sought by Bush". The New York Times. Retrieved 2010-09-11.
The Senate approved legislation this evening governing the interrogation and trials of terror suspects, establishing far-reaching new rules in the definition of who may be held and how they should be treated. ... The legislation sets up rules for the military commissions ...
- "References about Congressional war declaring power".
- Dana D. Nelson (October 11, 2008). "The 'unitary executive' question". Los Angeles Times. Retrieved 2009-10-04.
- Steve Holland (May 1, 2009). "Obama revelling in U.S. power unseen in decades". Reuters UK. Retrieved 2009-09-28.
- "The Law: The President's War Powers". Time Magazine. June 1, 1970. Retrieved 2009-09-28.
- "The Law: The President's War Powers". Time Magazine. June 1, 1970. Retrieved 2009-09-28.
- The President's News Conference of June 29, 1950
- Michael Kinsley (March 15, 1993). "The Case for a Big Power Swap". Time Magazine. Retrieved 2009-09-28.
- "Time Essay: Where's Congress?". Time Magazine. May 22, 1972. Retrieved 2009-09-28.
- "The Law: The President's War Powers". Time Magazine. June 1, 1970. Retrieved 2010-09-11.
Did Richard Nixon "usurp" the constitutional powers of Congress when he unilaterally ordered troops into Cambodia? Swarms of lawyers went to Washington last week to join an increasingly intense debate on the issue (see THE NATION). Their most persuasive arguments raised fundamental questions that go far beyond Cambodia and the Indochina war. Many of the antiwar lawyers conceded that proving the Cambodian "attacks" unconstitutional may be difficult.
- "THE PROCEEDINGS OF CONGRESS.; SENATE". The New York Times. June 28, 1862. Archived from the original on 2017-10-10. Retrieved 2010-09-11.
Mr. SUMNER spoke in favor of the House bills, contending that they were entirely free from all constitutional objections. They were just as constitutional as the Constitution itself. They only form a part of the means for the suppression of the rebellion. The war powers of Congress are clearly derived from the Constitution, and Congress has a perfect right to exercise war powers. He protested earnestly against the absurd and tyrannical doctrine that all war powers were centred in the President, and against any attempt to foist such an unconstitutional doctrine into the Constitution, as showing the effrontery with which ignorance and conceit excused unconstitutional doctrines. He contended, at length, that confiscation and liberation were among the war powers of Congress, and he had more hope from liberation than from confiscation.Cite uses deprecated parameter
- David S. Broder (March 18, 2007). "Congress's Oversight Offensive". Washington Post. Retrieved 2010-09-11.
A Congress under firm Republican control was somnolent when it came to oversight of the executive branch. No Republican committee chairman wanted to turn over rocks in a Republican administration.
- Thomas Ferraro (April 25, 2007). "House committee subpoenas Rice on Iraq". Reuters. Retrieved 2010-09-11.
Democratic lawmakers on Wednesday subpoenaed Secretary of State Condoleezza Rice to testify about a central and later refuted administration justification for the 2003 U.S.-led invasion of Iraq. But the administration said it might fight the subpoena, citing a legal doctrine that can shield a president and his aides from having to answer questions from Congress. "Those matters are covered by executive privilege," said State Department spokesman Sean McCormack, moving toward a possible legal showdown with the Democratic-led Congress.
- James Gerstenzang (July 16, 2008). "Bush claims executive privilege in Valerie Plame Wilson case". Los Angeles Times. Retrieved 2009-10-04.
- Elizabeth B. Bazan and Jennifer K. Elsea, legislative attorneys (January 5, 2006). "Presidential Authority to Conduct Warrantless Electronic Surveillance to Gather Foreign Intelligence Information" (PDF). Congressional Research Service. Retrieved 2009-09-28. Italic or bold markup not allowed in:
- Linda P. Campbell and Glen Elsasser (October 20, 1991). "Supreme Court Slugfests A Tradition". Chicago Tribune. Retrieved 2010-09-11.
The Constitution says judges have lifetime appointments "during good behavior" but, like other federal officers, they can be removed from office for "treason, bribery or other high crimes and misdemeanors.... It's entirely in Congress' determination what the limitations of the impeachment clause may be," said John Killian, senior specialist in American constitutional law for the Congressional Research Service.
- Davidson (2006), p. 19
- J. LESLIE KINCAID (January 17, 1916). "TO MAKE THE MILITIA A NATIONAL FORCE.; The Power of Congress Under the Constitution "for Organizing, Arming, and Disciplining" the State Troops". The New York Times. Retrieved 2010-09-11.
From the many articles which have appeared in the public press the general idea seems to prevail that the militia is essentially a State force. To whatever extent this may be true, at the present time, it has resulted from the failure of Congress adequately to provide for the militia as a national force.
- Stephen Herrington (February 25, 2010). "Red State Anxiety and The Constitution". Huffington Post. Retrieved 2010-09-11.
The Tenth states, "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." It does not say that laws derived under and consistent with the Articles of the Constitution cannot be enacted over and above the original writing or that State's retain a power to overrule federal law. The authority for doing so is based in implied powers and is among the earliest arguments in Constitutional law. Implied powers are derived from the general welfare and necessary and proper clauses.
- "Timeline". CBS News. 2010. Retrieved 2010-09-11.
McCulloch v. Maryland states that the Constitution grants implied powers to Congress, enabling it to carry out explicitly defined powers. The decision vastly augments Congress' power to make laws.Italic or bold markup not allowed in:
- RANDY E. BARNETT (April 23, 2009). "The Case for a Federalism Amendment". Wall Street Journal. Retrieved 2010-09-11.
Finally, Section 5 authorizes judges to keep Congress within its limits by examining laws restricting the rightful exercise of liberty to ensure that they are a necessary and proper means to implement an enumerated power. This section also requires that the Constitution be interpreted according to its original meaning at the time of its enactment. But by expanding the powers of Congress to include regulating all interstate activity, the Amendment greatly relieves the political pressure on courts to adopt a strained reading of Congress's enumerated powers.