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Powers Denied to State Government - History

Powers Denied to State Government - History


Levels of government differ not just in the size of their jurisdiction, but also in the role they play in the policy process. They control different policy tools (e.g., legal, budget) and perform different functions (e.g., creating laws, designing programs).

Answer. The federal government passes laws to protect human health and the environment, and creates regulations to enforce those laws. The federal government may also delegate responsibility of certain environmental issues to the state level.


Powers Denied to the States

Section 10. Clause 1. No State shall enter into any Treaty, Alliance, or Confederation grant Letters of Marque and Reprisal coin Money emit Bills of Credit make any Thing but gold and silver Coin a Tender in Payment of Debts pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.

Treaties, Alliances, or Confederations

At the time of the Civil War, this clause was one of the provisions upon which the Court relied in holding that the Confederation formed by the seceding States could not be recognized as having any legal existence. 1894 Today, its practical significance lies in the limitations which it implies upon the power of the States to deal with matters having a bearing upon international relations. In the early case of Holmes v. Jennison, 1895 Chief Justice Taney invoked it as a reason for holding that a State had no power to deliver up a fugitive from justice to a foreign State. More recently, the kindred idea that the responsibility for the conduct of foreign relations rests exclusively with the Federal Government prompted the Court to hold that, since the oil under the three mile marginal belt along the California coast might well become the subject of international dispute and since the ocean, including this three mile belt, is of vital consequence to the nation in its desire to engage in commerce and to live in peace with the world, the Federal Government has paramount rights in and power over that belt, including full dominion over the resources of the soil under the water area. 1896 In Skiriotes v. Florida, 1897 the Court, on the other hand, ruled that this clause did not disable Florida from regulating the manner in which its own citizens may engage in sponge fishing outside its territorial waters. Speaking for a unanimous Court, Chief Justice Hughes declared “When its action does not conflict with federal legislation, the sovereign authority of the State over the conduct of its citizens upon the high seas is analogous to the sovereign authority of the United States over its citizens in like circumstances.” 1898

Bills of Credit

Within the sense of the Constitution, bills of credit signify a paper medium of exchange, intended to circulate between individuals, and between the Government and individuals, for the ordinary purposes of society. It is immaterial whether the quality of legal tender is imparted to such paper. Interest bearing certificates, in denominations not exceeding ten dollars, which were issued by loan offices established by the State of Missouri and made receivable in payment of taxes or other moneys due to the State, and in payment of the fees and salaries of state officers, were held to be bills of credit whose issuance was banned by this section. 1899 The States are not forbidden, however, to issue coupons receivable for taxes, 1900 nor to execute instruments binding themselves to pay money at a future day for services rendered or money borrowed. 1901 Bills issued by state banks are not bills of credit 1902 it is immaterial that the State is the sole stockholder of the bank, 1903 that the officers of the bank were elected by the state legislature, 1904 or that the capital of the bank was raised by the sale of state bonds. 1905

1894 Williams v. Bruffy, 96 U.S. 176, 183 (1878).

1895 39 U.S. (14 Pet.) 540 (1840).

1896 United States v. California, 332 U.S. 19 (1947).

1899 Craig v. Missouri, 29 U.S. (4 Pet.) 410, 425 (1830) Byrne v. Missouri, 33 U.S. (8 Pet.) 40 (1834).

1900 Virginia Coupon Cases (Poindexter v. Greenhow), 114 U.S. 269 (1885) Chaffin v. Taylor, 116 U.S. 567 (1886).

1901 Houston & Texas Cent. R.R. v. Texas, 177 U.S. 66 (1900).

1902 Briscoe v. Bank of Kentucky, 36 U.S. (11 Pet.) 257 (1837).

1903 Darrington v. Bank of Alabama, 54 U.S. (13 How.) 12, 15 (1851) Curran v. Arkansas, 56 U.S. (15 How.) 304, 317 (1854).

1904 Briscoe v. Bank of Kentucky, 36 U.S. (11 Pet.) 257 (1837).

1905 Woodruff v. Trapnall, 51 U.S. (10 How.) 190, 205 (1851).

Legal Tender

Relying on this clause, which applies only to the States and not to the Federal Government, 1906 the Supreme Court has held that where the marshal of a state court received state bank notes in payment and discharge of an execution, the creditor was entitled to demand payment in gold or silver. 1907 Since, however, there is nothing in the Constitution prohibiting a bank depositor from consenting when he draws a check that payment may be made by draft, a state law providing that checks drawn on local banks should, at the option of the bank, be payable in exchange drafts was held valid. 1908

Bills of Attainder

Statutes passed after the Civil War with the intent and result of excluding persons who had aided the Confederacy from following certain callings, by the device of requiring them to take an oath that they had never given such aid, were held invalid as being bills of attainder, as well as ex post facto laws. 1909

1906 Juilliard v. Greenman, 110 U.S. 421, 446 (1884).

1907 Gwin v. Breedlove, 43 U.S. (2 How.) 29, 38 (1844). See also Griffin v. Thompson, 43 U.S. (2 How.) 244 (1844).

1908 Farmers & Merchants Bank v. Federal Reserve Bank, 262 U.S. 649, 659 (1923).

1909 Cummings v. Missouri, 71 U.S. (4 Wall.) 277, 323 (1867) Klinger v. Missouri, 80 U.S. (13 Wall.) 257 (1872) Pierce v. Carskadon, 83 U.S. (16 Wall.) 234, 239 (1873).

Other attempts to raise bill-of-attainder claims have been unsuccessful. A Court majority denied that a municipal ordinance that required all employees to execute oaths that they had never been affiliated with Communist or similar organizations, violated the clause, on the grounds that the ordinance merely provided standards of qualifications and eligibility for employment. 1910 A

law that prohibited any person convicted of a felony and not subsequently pardoned from holding office in a waterfront union was not a bill of attainder because the “distinguishing feature of a bill of attainder is the substitution of a legislative for a judicial determination of guilt” and the prohibition “embodies no further implications of appellant’s guilt than are contained in his 1920 judicial conviction.” 1911


Federal Power Vs. State Power

The strongest guarantee that the power of the national government would be restricted and the states would retain a degree of sovereignty was the framers’ creation of a federal system of government. In a federal system, power is divided between the federal (or national) government and the state governments. Great or explicit powers, called enumerated powers, were granted to the federal government to declare war, impose taxes, coin and regulate currency, regulate foreign and interstate commerce, raise and maintain an army and a navy, maintain a post office, make treaties with foreign nations and with Native American tribes, and make laws regulating the naturalization of immigrants.

All powers not expressly given to the national government, however, were intended to be exercised by the states. These powers are known as reserved powers. Thus, states remained free to pass laws regarding such things as intrastate commerce (commerce within the borders of a state) and marriage. Some powers, such as the right to levy taxes, were given to both the state and federal governments. Both the states and the federal government have a chief executive to enforce the laws (a governor and the president, respectively) and a system of courts.

Reserve powers allow the states to pass intrastate legislation, such as laws on commerce, drug use, and marriage (a). However, sometimes judicial rulings at the federal level may supersede such legislation, as happened in Obergefell v. Hodges (2015), the recent Supreme Court case regarding marriage equality (b). (credit a: modification of work by Damian Gadal credit b: modification of work by Ludovic Bertron)

Although the states retained a considerable degree of sovereignty, the supremacy clause in Article VI of the Constitution proclaimed that the Constitution, laws passed by Congress, and treaties made by the federal government were “the supreme Law of the Land.” In the event of a conflict between the states and the national government, the national government would triumph. Furthermore, although the federal government was to be limited to those powers enumerated in the Constitution, Article I provided for the expansion of Congressional powers if needed. The “necessary and proper” clause of Article I provides that Congress may “make all Laws which shall be necessary and proper for carrying into Execution the foregoing [enumerated] Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”

The Constitution also gave the federal government control over all “Territory or other Property belonging to the United States.” This would prove problematic when, as the United States expanded westward and population growth led to an increase in the power of the northern states in Congress, the federal government sought to restrict the expansion of slavery into newly acquired territories.

A growing number of institutes and study centers focus on the Constitution and the founding of the republic. Examples such as the Institute for the American Constitutional Heritage and the Bill of Rights Institute have informative public websites with documents and videos. Another example is the National Constitution Center that also holds programs related to aspects of the enduring U.S. Constitution.

Realizing that flaws in the Articles of Confederation could harm the new country and recognizing that the Articles could not easily be revised as originally intended, delegates from the states who met in Philadelphia from May through September 1787 set about drafting a new governing document. The United States that emerged from the Constitutional Convention in September was not a confederation, but it was a republic whose national government had been strengthened greatly. Congress had been transformed into a bicameral legislature with additional powers, and a national judicial system had been created. Most importantly, a federal system had been established with the power to govern the new country.

To satisfy the concerns of those who feared an overly strong central government, the framers of the Constitution created a system with separation of powers and checks and balances. Although such measures satisfied many, concerns still lingered that the federal government remained too powerful.


Section 5: Powers and Duties of Congress

Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members,and a Majority of each shall constitute a Quorum to do Business but a smaller Number may adjourn from day to day, and may be authorized to compel the Attendance of absent Members, in such Manner, and under such Penalties as each House may provide.

Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member.

Each House shall keep a Journal of its Proceedings, and from time to time publish the same, excepting such Parts as may in their Judgment require Secrecy and the Yeas and Nays of the Members of either House on any question shall, at the Desire of one fifth of those Present, be entered on the Journal.

Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days, nor to any other Place than that in which the two Houses shall be sitting.

Read Interpretations of Article I, Section 5


Top Ten Abuses of Power Since 9/11

1. Warrantless Wiretapping — In December 2005, the New York Times reported the National Security Agency was tapping into telephone calls of Americans without a warrant, in violation of federal statutes and the Constitution. Furthermore, the agency had also gained direct access to the telecommunications infrastructure through some of America's largest companies. The program was confirmed by President Bush and other officials, who boldly insisted, in the face of all precedent and the common understanding of the law, that the program was legal. And, the agency appears to have been not only eavesdropping on the conversations of Americans in this country without warrants, but also using broad "data mining" systems that allowed it to analyze information about the communications of millions of innocent people within the United States. In August 2006, in a lawsuit brought by the ACLU, a federal judge in Detroit found the program both unconstitutional and illegal. The U.S. Court of Appeals for the 6th Circuit overturned that decision because it found the plaintiffs could not prove with certainty they were wiretapped but they did not rule on the legality of the program. The ACLU is considering an appeal. In the meantime, the 110 th Congress chose basically to sanction the exact same program in August of 2007. The law that makes the warrantless wiretapping program legal is scheduled to sunset in February 2008, although Congress plans to take up legislation before then. Learn More >>

2. Torture, Kidnapping and Detention — In the years since 9/11, our government has illegally kidnapped, detained and tortured numerous prisoners. The government continues to claim that it has the power to designate anyone, including Americans as "enemy combatants" without charge. Since 2002, some "enemy combatants," have been held at Guantanamo Bay and elsewhere, in some cases without access by the Red Cross. Investigations into other military detention centers have revealed severe human rights abuses and violations of international law, such as the Geneva Conventions. The government has also engaged in the practice of rendition: secretly kidnapping people and moving them to foreign countries where they are tortured and abused. It has been reported the CIA maintains secret prison camps in Eastern Europe to conduct operations that may also violate international standards. Congress made matters worse by enacting the Military Commissions Act, which strips detainees of their habeas rights, guts the enforceability of the Geneva Conventions' protections against abuse, and even allows persons to be prosecuted based on evidence beaten out of a witness. (See www.aclu.org/torture)

3. The Growing Surveillance Society — In perhaps the greatest assault on the privacy of ordinary Americans, the country is undergoing a rapid expansion of data collection, storage, tracking, and mining. The FBI's Investigative Data Warehouse, as an example, has grown to over 560 million records. Over and above the invasion of privacy represented by any one specific program, a combination of new technologies, expanded government powers and expanded private-sector data collection efforts is creating a new "surveillance society" that is unlike anything Americans have seen before. Learn More >>

4. Abuse of the Patriot Act— Several provisions of the Patriot Act were set to expire at the end of 2005 and, despite opposition from across the political spectrum and more than 400 community and state resolutions expressing concern about the Patriot Act, Congress reauthorized the law without reforming its most flawed provisions to bring these extraordinary powers back in line with the Constitution. Since then, the Justice Department's Inspector General found that the FBI has issued hundreds of thousands of national security letters, a majority against U.S. persons, and many without any connection to terrorism at all. In September 2007, the ACLU won a landmark victory when a judge struck down the national security letter provision of the Patriot Act because part of the statute violated both the First Amendment and the separation of powers doctrine. (See http://www.reformthepatriotact.org)

5. Government Secrecy — The Bush administration has been one of the most secretive and nontransparent in our history. The Freedom of Information Act has been weakened , the administration has led a campaign of reclassification and increased secrecy by federal agencies (including the expansion of a catch-all category of "sensitive but unclassified"), and has made sweeping claims of "state secrets" to stymie judicial review of many of its policies that infringe on civil liberties. It even refused to grant government investigators the security clearances they needed to investigate the illegal and unconstitutional NSA wiretapping program. The administration has also expressed interest in prosecuting journalists under the Espionage Act of 1917: essentially trying to quell the media's role in exposing questionable, illegal and unconstitutional conduct, including the maintenance of secret CIA prisons abroad and the NSA wiretapping program. Learn More >>

6. Real ID — The 2005 Real ID Act, rammed through Congress by being attached to a unrelated, "must pass" bill, lays the foundation for a national ID card and makes it more difficult for persecuted people to seek asylum. Under the law, states are required to standardize their drivers licenses (according to a still undetermined standard) and link to databases to be shared with every federal, state and local government official in every other state. Conservative estimates place the cost of the program at $10 to 12 billion. Opposition to the bill and its implementation remains fierce, and comes from groups such as the National Governor's Association and the National Council of State Legislators. (See http://www.realnightmare.org/)

7. No Fly and Selectee Lists — The No-Fly list was established to keep track of people the government prohibits from traveling because they have been labeled as security risks. Since 9/11 the number of similar watch lists has mushroomed to about 720,000 names, all with mysterious or ill-defined criteria for how names are placed on the lists, and with little recourse for innocent travelers seeking to be taken off them. These lists name an estimated 30,000 to 50,000 people. The lists are so erroneous several members of Congress, including Senator Ted Kennedy (D-MA), have been flagged. www.aclu.org/nofly

8. Political Spying — Government agencies — including the FBI and the Department of Defense — have conducted their own spying on innocent and law-abiding Americans. Through the Freedom of Information Act, the ACLU learned the FBI had been consistently monitoring peaceful groups such Quakers, People for the Ethical Treatment of Animals, Greenpeace, the Arab American Anti-Defamation Committee and, indeed, the ACLU itself. In August 2007 the Pentagon announced that it would be shutting down its TALON database program, which illegally gathered information on anti-war activists across the country. (See www.aclu.org/spyfiles)

9. Abuse of Material Witness Statute — In the days and weeks after 9/11, the government gathered and detained many people — mostly Muslims in the US — through the abuse of a narrow federal technicality that permits the arrest and brief detention of "material witnesses," or those who have important information about a crime. Most of those detained as material witnesses were never treated as witnesses to the crimes of 9/11, and though they were detained so that their testimony could be secured, in many cases, no effort was made to secure their testimony. The government has apologized for wrongfully detaining 13 people as material witnesses. Some were imprisoned for more than six months and one actually spent more than a year behind bars. Learn More >>


How the U.S. Constitution Distributes Power

Constitutions are complex instruments of republican government and popular sovereignty. The way that the Texas Constitution structures and empowers government in the Lone Star State is shaped by the federal structure of powers and responsibilities outlined in the U.S. Constitution.

Scholars often speak of three types of powers identified in the U.S. Constitution:

  • Powers delegated to the Congress – Article I, Section 8
  • Powers denied to the Congress and powers denied to the states – Article I, Sections 9 and 10, respectively
  • Reserved powers (reserved to the states) – the 10th Amendment

Additionally, the U.S. Constitution contains numerous other clauses that contribute to the interpretation of the relationship of the states to other states, to the national government, and to the people. Article IV is dedicated to addressing many of these issues.

Despite specifying this complex set of powers granted and denied to the national and state governments, the framers still felt the need to underline the generally subordinate position of the states relative to the national government in the "supremacy clause" in Article VI:

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

Delegated Powers

Delegated powers are those powers granted to the national government under the United States Constitution.

The most important delegated powers are found in Article I of the Constitution, which focuses primarily on the national legislature (the United States Congress). This article lays out in specific detail the powers possessed by Congress – and, critically, the powers Congress does not exercise.

Article I, Section 8 is essentially a laundry list of the things that Congress may do. The most prominent items on this list include the "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. " This section also includes the following powers:

  • . To borrow money on the credit of the United States
  • To regulate commerce with foreign nations, and among the several states, and with the Indian tribes
  • To establish a uniform rule of naturalization, and uniform laws on the subject of bankruptcies throughout the United States
  • To coin money, regulate the value thereof, and of foreign coin, and fix the standard of weights and measures.

Section 8 also assigns to Congress wide ranging powers over the military, including but not limited to:

  • To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water
  • To raise and support armies, but no appropriation of money to that use shall be for a longer term than two years
  • To provide and maintain a navy.

The explicit mention of these power and others explicitly mentioned in other articles of the Constitution raises the question of whether the national government and Congress can exercise powers not explicitly mentioned. The framers were careful to make some powers explicitly off-limits. These are the powers denied to Congress. The framers composed a separate list of the powers denied to the states.

Denied Powers

The powers denied Congress are specified in a short list in Article I, Section 9. The article begins by prohibiting Congress from limiting the slave trade until 1808, one of the key compromises between the northern and southern states. It then proceeds to prohibit things like suspension of the privilege of habeas corpus, the imposition of taxes on exports from any of the states, and granting of titles of nobility.

  • The powers denied to the states are specified in an even shorter list in Article I, Section 10. These include:
  • No state shall enter into any treaty, alliance, or confederation . coin money emit bills of credit make anything but gold and silver coin a tender in payment of debts.
  • No state shall, without the consent of the Congress, lay any imposts or duties on imports or exports.
  • No state shall, without the consent of Congress, . enter into any agreement or compact with another state, or with a foreign power.

Reserved Powers

The Bill of Rights provides an important broad guarantee to the states regarding the limits of the powers of the national government and the essentially unlimited reserve of powers that the states may claim. Amendment 10 – the last of the original ten amendments that constitute the Bill of Rights – 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."

This "reserved powers clause" is fundamental to the ability of the states to formulate and adopt their own constitutions and laws within the rubric of the U.S. Constitution.

Because the U.S. Constitution remains the fundamental constraint on the power of the states within the federal system, new constraints on state powers can and have come in the form of additional amendments to the Constitution. The most fundamental changes were set in motion by the Civil War. Amendments 13, 14, and 15, ratified in the years following the end of hostilities, placed new or reemphasized existing constraints on the states, including the prohibition on slavery, the guarantee of due process of the law for all individuals, and the legal guarantee of voting rights for freed slaves and their descendents. It took the better part of the following century to enforce the 14th and 15th Amendments, an illustration of the ability of the states to use the reserved powers to resist efforts to bring them into compliance with national mandates.

Later amendments prohibited unjust or undemocratic practices in the various states, or expanded the voting franchise to new groups. The 19th Amendment guaranteed women the right to vote throughout the country. The 24th amendment outlawed the poll tax, which tended to disenfranchise blacks and other minorities, as well as poor whites. The 26th lowered the legal voting age to 18 years.


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The United States federal system divides power between national and state governments, both of which govern the same constituents. The powers granted to the national government in the Constitution are called delegated powers. There are three types of delegated powers: enumerated powers, implied powers, and inherent powers. Enumerated powers, sometimes called expressed powers, are given directly by the Constitution. Examples of these powers include the power to declare war, regulate foreign and interstate commerce, conduct foreign relations, coin money, and raise and maintain a military (Article 1, Section 8).

Implied powers are those powers that are reasonably inferred by enumerated powers. The need for these implied powers is spelled out in the "necessary and proper" clause of the Constitution (Article 1, Section 8, Clause 18). The clause says that Congress has the power "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." This clause is often referred to as the "elastic clause," as it can stretch to cover a wide range of supplementary powers necessary to carry out enumerated powers.

Inherent powers, although not expressly delegated by the Constitution, are powers that are intrinsically held by any national government of a sovereign state. Examples of inherent powers include the power to control immigration, the power to acquire territory, and the power to quell insurrections.

The powers granted to the state governments are reserved powers. These are powers that are not given to the national government, but which are not denied to the states. These reserved powers are collectively known as the "police power" of the state. Powers that are shared by both the national and state governments are concurrent powers. Examples include the power to tax, borrow money, and define crimes and punish criminals.

There are several powers that are denied either to national, state, or both governments. Powers that are given to the state governments may be denied to the national government, and vice versa. Examples of powers that are denied to the states are the power to coin money, make treaties, and wage war. The national government cannot make new states without the consent of the state legislature concerned, nor can they try anyone for treason without two witnesses and/or a confession.

A recurring debate concerning federalism is the question of which government's power is supreme regarding disputes between state and national governments. Article VI of the Constitution, referred to as the supremacy clause, states that there are three items that are the superlative law of the land: the Constitution, the laws of the national government which are not otherwise unconstitutional, and treaties, which can only be formed by the national government.

Although the supremacy clause gives the national government supreme powers, boundaries to those powers are provided in the Tenth Amendment to the Constitution. This amendment gives the states those powers that are not delegated to the national government, nor prohibited to the states. Therefore, the Tenth Amendment became the states' guarantee to rights and the source of the state governments' reserved powers. This amendment clearly defines the eighteenth century concept of dual federalism: shared power with separated spheres of influence.

Federalism in the United States has been an evolutionary process. Three key issues have determined how national and state powers are balanced: implied powers, commerce power, and the Civil War.

The concept of implied power has often been brought into question concerning national supremacy. The Supreme Court case of McCulloch v. Maryland (1819) was instrumental in shaping the meaning of implied powers. This landmark case addressed whether or not Congress has the power to create a national bank. The state of Maryland charged the Baltimore branch of the Bank of the United States, a bank created by Congress, a hefty tax. When James McCulloch, the head cashier of the branch, refused to pay the tax or the fees he incurred, he was taken to county court. The case finally made its way to the Supreme Court, where Chief Justice John Marshall determined that establishing a national bank is a "necessary and proper" function of the federal government, therefore establishing the concept of implied power.

One of the delegated powers of the national government is the power to regulate foreign and interstate commerce. Although seemingly straightforward, defining "commerce" and establishing the boundaries of the power of commerce control has proven to be difficult. The case of Gibbons v. Ogden (1824) defined commerce broadly, giving Congress the power to control practically every form of interstate commercial activity.

Differences of opinion over the issues of national supremacy and state sovereignty were fought on the battlefield, as well as in the courts. The Civil War was fought, in part, over the issue of federalism. The concept of nullification was an issue that was used to argue states' rights preceding the Civil War. The idea of nullification was created in 1798 by James Madison and Thomas Jefferson, who argued in the Virginia and Kentucky Resolutions that states had the right to declare a federal law null and void if they determined it to be unconstitutional.

Later, John C. Calhoun of South Carolina revived the concept of nullification, first in opposition to a federal tariff and later to bolster South Carolina's right to continue slavery, even after Congress' efforts to ban it. Calhoun's position was that the states had the right to declare the federal ban of slavery unconstitutional, and therefore, null and void. Subsequently, the Civil War determined once and for all that states could not declare acts of Congress unconstitutional and that the federal union cannot be dissolved.

The Slaughterhouse Cases (1873) solidified the concept that the states were sovereign within their borders. In these cases, the state of Louisiana granted a monopoly of slaughterhouses for the protection of pubic health. Slaughterhouse operators who lost their businesses claimed that they had been deprived of their property without due process in violation of the Fourteenth Amendment. This amendment forbids the states to deprive any person of life, liberty, or property without due process of law and established citizenship for African Americans. The original intent of the Fourteenth Amendment was to guarantee the freedom of former black slaves. In these cases, the Court drew a distinction between United States and state citizenship, and it was held that the amendment did not intend to deprive the state of legal jurisdiction over the civil rights of its citizens. The restraint placed by the state on the slaughterhouse operators was declared not to have deprived them of their property without due process. In this case, the states preserved their authority.

As is obvious throughout history, federalism has evolved from its creation by the Framers of the Constitution and continues to change through the political discussions and court cases of today.

Copyright 2006 The Regents of the University of California and Monterey Institute for Technology and Education


Powers Delegated to the United States

Regarding the Power of the States the US Constitution delegates the following powers to the United States Legislature:

  • All legislative power.
  • Set and collect taxes.
  • To borrow money for the whole country.
  • To pay the national debt.
  • To provide for national defense.
  • To regulate commerce with foreign nations.
  • To regulate commerce between the States.
  • To regulate commerce with Indian Tribes.
  • To establish Rules of Citizenship and Immigration.
  • To establish rules for bankruptcy.
  • To create money and set the value of it.
  • To set the value of foreign currency.
  • To establish standards for weights.
  • To establish standards for measurements.
  • To declare the punishment for counterfeiting stocks, bonds and the currency of the United States.
  • To establish Post Offices and Postal Roads.
  • To secure the intellectual property of the copyright, trademark or patent holder in order to provide an incentive for further developments or new releases of artistic works, inventions and businesss processes.
  • To establish courts subordinate to the Supreme Court of the United States.
  • To define and punish crimes committed on international waters.
  • To define and punish crimes against the Laws of Nations.
  • To declare war.
  • To give private citizens and corporations Letters of Marque.
  • To give holders of Letters of Marque a Letter of Reprisal authorizing them to capture foreign assets or persons on behalf of the United States.
  • To make rules concerning captures on land or water.
  • To raise and support armies.
  • To appropriate money for armies for up to 2 years at a time.
  • To provide a Navy.
  • To maintain a Navy.
  • To make rules for the Government.
  • To define regulations for land and naval forces.
  • To define the method to call forth militias in order to enforce the Laws of the United States*.
  • To suppress insurrections.
  • To repel invasions.
  • To define ways to organize, arm and discipline militias.
  • To define ways to Govern militias when they are employed by the United States.
  • To define all legislation within Washington D.C.
  • To exercise authority over forts and armories within Washington D.C.

Contents

All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.

Section 1 is a vesting clause that bestows federal legislative power exclusively to Congress. Similar clauses are found in Articles II and III. The former confers executive power upon the president alone, and the latter grants judicial power solely to the federal judiciary. These three articles create a separation of powers among the three branches of the federal government. This separation of powers, by which each branch may exercise only its own constitutional powers and no others, [2] [3] is fundamental to the idea of a limited government accountable to the people.

The separation of powers principle is particularly noteworthy in regard to the Congress. The Constitution declares that the Congress may exercise only those legislative powers "herein granted" within Article I (as later limited by the Tenth Amendment). [4] It also, by implied extension, prohibits Congress from delegating its legislative authority to either of the other branches of government, a rule known as the nondelegation doctrine. [5] However, the Supreme Court has ruled that Congress does have the latitude to delegate regulatory powers to executive agencies as long as it provides an "intelligible principle" which governs the agency's exercise of the delegated regulatory authority. [6] That the power assigned to each branch must remain with that branch, and may be expressed only by that branch, is central to the theory. [7] The nondelegation doctrine is primarily used now as a way of interpreting a congressional delegation of authority narrowly, [8] in that the courts presume Congress intended only to delegate that which it certainly could have, unless it clearly demonstrates it intended to "test the waters" of what the courts would allow it to do. [9]

Although not specifically mentioned in the Constitution, Congress has also long asserted the power to investigate and the power to compel cooperation with an investigation. [10] The Supreme Court has affirmed these powers as an implication of Congress's power to legislate. [11] Since the power to investigate is an aspect of Congress's power to legislate, it is as broad as Congress's powers to legislate. [12] However, it is also limited to inquiries that are "in aid of the legislative function" [13] Congress may not "expose for the sake of exposure". [14] It is uncontroversial that a proper subject of Congress's investigation power is the operations of the federal government, but Congress's ability to compel the submission of documents or testimony from the president or his subordinates is often-discussed and sometimes controversial (see executive privilege), although not often litigated. As a practical matter, the limitation of Congress's ability to investigate only for a proper purpose ("in aid of" its legislative powers) functions as a limit on Congress's ability to investigate the private affairs of individual citizens matters that simply demand action by another branch of government, without implicating an issue of public policy necessitating legislation by Congress, must be left to those branches due to the doctrine of separation of powers. [15] The courts are highly deferential to Congress's exercise of its investigation powers, however. Congress has the power to investigate that which it could regulate, [12] and the courts have interpreted Congress's regulatory powers broadly since the Great Depression.

Clause 1: Composition and election of Members Edit

The House of Representatives shall be composed of Members chosen every second Year by the People of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.

Election districts in each state have recently been required to be structured so that each elected representative represents substantially equal populations, based on court interpretations of the Equal Protection Clause of the Fourteenth Amendment, finding that, “construed in its historical context, the command of Art. I, § 2, that Representatives be chosen 'by the People of the several States' means that as nearly as is practicable one man's vote in a congressional election is to be worth as much as another's.” Court involvement in this issue developed slowly from an initial practice of electing representatives at-large, until in the late 1940s and the early 1950s the Court used the “political question” doctrine in Baker v. Carr to decline to adjudicate districting and apportionment suits. The Supreme Court has held in Rucho v. Common Cause that there was no “constitutional directive” nor any “legal standards to guide” the Court in claims of unconstitutional partisan gerrymandering, and such claims today are considered nonjusticiable. [16]

At the time of its creation, the Constitution did not explicitly give citizens an inherent right to vote. [17] However, by stipulating that those qualified to vote in elections for the largest chamber of a state's legislature could vote in Congressional (House of Representatives) elections the Framers expressed a rather explicit intent that the House was to be directly elected. Since the Civil War, several constitutional amendments have been enacted that have curbed the states' broad powers to set voter qualification standards. Though never enforced, clause 2 of the Fourteenth Amendment provides that "when the right to vote at any election for the choice of electors for president and vice president of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State." The Fifteenth Amendment prohibits the denial of the right to vote based on race, color, or previous condition of servitude. The Nineteenth Amendment prohibits the denial of the right to vote based on sex. The Twenty-fourth Amendment prohibits the revocation of voting rights due to the non-payment of a poll tax. The Twenty-sixth Amendment prohibits the denial of the right of US citizens, eighteen years of age or older, to vote on account of age.

Moreover, since the Supreme Court has recognized voting as a fundamental right, [18] the Equal Protection Clause places very tight limitations (albeit with uncertain limits) on the states' ability to define voter qualifications it is fair to say that qualifications beyond citizenship, residency, and age are usually questionable. [19]

In the 1960s, the Supreme Court started to view voting as a fundamental right covered by the Equal Protection Clause of the Fourteenth Amendment. [20] In a dissenting opinion of a 1964 Supreme Court case involving reapportionment in the Alabama state legislature, Associate Justice John Marshall Harlan II included Minor v. Happersett (an 1875 case which allowed states to deny women the right to vote) in a list of past decisions about voting and apportionment which were no longer being followed. [21]

In Oregon v. Mitchell (1970), the Supreme Court held that the Qualifications clause did not prevent Congress from overriding state-imposed minimum age restrictions for voters in Congressional elections. [22]

Since clause 3 provides that Members of the House of Representatives are apportioned state-by-state and that each state is guaranteed at least one Representative, exact population equality between all districts is not guaranteed and, in fact, is currently impossible, because while the size of the House of Representatives is fixed at 435, several states had less than 1/435 of the national population at the time of the last reapportionment in 2010. However, the Supreme Court has interpreted the provision of Clause One that Representatives shall be elected "by the People" to mean that, in those states with more than one member of the House of Representatives, each congressional election district within the state must have nearly identical populations. [23]

Clause 2: Qualifications of Members Edit

No Person shall be a Representative who shall not have attained to the Age of twenty five Years, and been seven Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State in which he shall be chosen.

The Constitution provides three requirements for Representatives: A Representative must be at least 25 years old, must be an inhabitant of the state in which he or she is elected, and must have been a citizen of the United States for the previous seven years. There is no requirement that a Representative reside within the district in which he or she represents although this is usually the case, there have been occasional exceptions. [24]

The Supreme Court has interpreted the Qualifications Clause as an exclusive list of qualifications that cannot be supplemented by a house of Congress exercising its Section 5 authority to "judge. the. qualifications of its own members" [25] or by a state in its exercise of its Section 4 authority to prescribe the "times, places and manner of holding elections for Senators and Representatives." The Supreme Court, as well as other federal courts, have repeatedly barred states from additional restrictions, such as imposing term limits on members of Congress, allowing members of Congress to be subject to recall elections, or requiring that Representatives live in the congressional district in which they represent. [26] [27] A 2002 Congressional Research Service report also found that no state could implement a qualification that a Representative not be a convicted felon or incarcerated. [28]

However, the United States Supreme Court has ruled that certain ballot access requirements, such as filing fees and submitting a certain number of valid petition signatures do not constitute additional qualifications and thus few Constitutional restrictions exist as to how harsh ballot access laws can be.

Finally, although the U.S. Constitution places no restrictions on state or local office-holders simultaneously holding federal office, most state constitutions today effectively ban state and local office holders from also holding federal office at the same time by prohibiting federal office holders from also holding state and local office. Unlike other state-mandated restrictions, these sort of prohibitions are constitutional as long they are enforced purely at the state level (i.e. against active federal office holders seeking to obtain or hold a state or local office).

Clause 3: Apportionment of Representatives and taxes Edit

Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons. The actual Enumeration shall be made within three Years after the first Meeting of the Congress of the United States, and within every subsequent Term of ten Years, in such Manner as they shall by Law direct. The number of Representatives shall not exceed one for every thirty Thousand, but each State shall have at Least one Representative and until such enumeration shall be made, the State of New Hampshire shall be entitled to chuse [sic] three, Massachusetts eight, Rhode-Island and Providence Plantations one, Connecticut five, New-York six, New Jersey four, Pennsylvania eight, Delaware one, Maryland six, Virginia ten, North Carolina five, South Carolina five, and Georgia three.

After much debate, the framers of the Constitution decided to make population the basis of apportioning the seats in the House of Representatives and the tax liability among the states. To facilitate this, the Constitution mandates that a census be conducted every ten years to determine the population of each state and of the nation as a whole and establishes a rule for who shall be counted or excluded from the count. As the new form of government would become operational prior to the completion of a national census, the Constitution also provides for a temporary apportionment of seats.

Originally, the population of each state and of the nation as a whole was ascertained by adding to the whole number of free Persons, three-fifths the number of all other Persons (i.e. slaves), but excluding non-taxed Native Americans. This Constitutional rule, known as the three-fifths compromise, was a compromise between Southern and Northern states in which three-fifths of the population of slaves would be counted for enumeration purposes and for the apportionment of seats in the House of Representatives and of taxes among the states. It was, according to Supreme Court Justice Joseph Story (writing in 1833), a "matter of compromise and concession, confessedly unequal in its operation, but a necessary sacrifice to that spirit of conciliation, which was indispensable to the union of states having a great diversity of interests, and physical condition, and political institutions". [29] Section 2 of the Fourteenth Amendment (1868) later superseded Article 1, Section 2, Clause 3 and explicitly repealed the compromise.

Following the completion of each census, Congress is empowered to use the aggregate population in all the states (according to the prevailing Constitutional rule for determining population) to determine the relative population of each state to the population of the whole, and, based on its calculations, to establish the appropriate size of the House [30] and to allocate a particular number of representatives to each state according to its share of the national population.

Since enactment of the Reapportionment Act of 1929, a constant 435 House seats have been apportioned among the states according to each census, and determining the size of the House is not presently part of the apportionment process. With one exception, the apportionment of 1842, the House of Representatives had been enlarged by various degrees from sixty-five members in 1788 to 435 members by 1913. The determination of size was made based on the aggregate national population, so long as the size of the House did not exceed 1 member for every 30,000 of the country's total population [31] nor the size of any state's delegation exceed 1 for every 30,000 of that state's population. [32] With the size of the House still fixed at 435, the current ratio, as of the 2010 Census, is around 1 Representative per 700,000 Persons. [33]

However, after the 1920 census, Congress failed to apportion the House, with the House using the allocations of the Apportionment Act of 1911 until after the 1932 elections, which was the date determined by Congress after it passed and the president enacted the Reapportionment Act of 1929. This resulted in the representation within the House to remain frozen for twenty years. [34] Reapportionment of the House required Congress to pass a bill and the president to sign into law an act to reapportion the House from since the ratification of the constitution up until 1941, which is when a self-executing statute was enacted, thus making reapportionment an automatic process. [35]

Although the first sentence in this clause originally concerned apportionment of both House seats and taxes among the several states, the Fourteenth Amendment sentence that replaced it in 1868 mentioned only the apportionment of House seats. Even so, the constraint placed upon Congress's taxation power remained, as the restriction was reiterated in Article 1 Section 9 Clause 4. The amount of direct taxes that could be collected by the federal government from the people in any State would still be tied directly to that state's share of the national population.

Due to this restriction, application of the income tax to income derived from real estate and specifically income in the form of dividends from personal property ownership such as stock shares was found to be unconstitutional because it was not apportioned among the states [36] that is to say, there was no guarantee that a State with 10% of the country's population paid 10% of those income taxes collected, because Congress had not fixed an amount of money to be raised and apportioned it between the States according to their respective shares of the national population. To permit the levying of such an income tax, Congress proposed and the states ratified the Sixteenth Amendment, which removed the restriction by specifically providing that Congress could levy a tax on income "from whatever source derived" without it being apportioned among the States or otherwise based on a State's share of the national population.

Clause 4: Vacancies Edit

When vacancies happen in the Representation from any State, the Executive Authority thereof shall issue Writs of Election to fill such Vacancies.

Generally states and territories fill vacancies within the House of Representatives according to their own laws, however when vacancies within the House exceed 100 members, the Speaker of the House will announce "extraordinary circumstances" have occurred, which obligates the executive authority of all states with vacancies to hold a special election within 49 days of the announcement. This election is initiated via a writ of election from the Governor ( 2 U.S.C. § 8(b) ).

Clause 5: Speaker and other officers Impeachment Edit

The House of Representatives shall chuse [sic] their Speaker and other Officers and shall have the sole Power of Impeachment.

Section Two further provides that the House of Representatives may choose its Speaker and its other officers. Though the Constitution does not mandate it, every Speaker has been a member of the House of Representatives. [37] The Speaker rarely presides over routine House sessions, choosing instead to deputize a junior member to accomplish the task.

Finally, Section Two grants to the House of Representatives the sole power of impeachment. Although the Supreme Court has not had an occasion to interpret this specific provision, the Court has suggested that the grant to the House of the "sole" power of impeachment makes the House the exclusive interpreter of what constitutes an impeachable offense. [38]

This power, which is analogous to the bringing of criminal charges by a grand jury, has been used only rarely. [39] The House has begun impeachment proceedings 62 times since 1789, and twenty federal officials have been formally impeached as a result, including: three presidents (Andrew Johnson, Bill Clinton, and Donald Trump), one Cabinet secretary (William W. Belknap), one senator (William Blount), one Supreme Court associate justice (Samuel Chase), and fourteen federal judges. Also, notably, impeachment proceedings compelled the resignation of President Richard Nixon.

The Constitution does not specify how impeachment proceedings are to be initiated. Until the early 20th century, a House member could rise and propose an impeachment, which would then be assigned to a committee for investigation upon a formal resolution vote of the judicial committee. Presently, it is the House Judiciary Committee that initiates the process and then, after investigating the allegations, prepares recommendations for the whole House's consideration. If the House votes to adopt an impeachment resolution, the Chairman of the Judiciary Committee recommends a slate of "managers," whom the House subsequently approves by resolution. These representatives subsequently become the prosecution team in the impeachment trial in the Senate (see Section 3, Clause 6 below). [39]

Clause 1: Composition and election of senators Edit

The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof, for six Years and each Senator shall have one Vote.

The first Clause of Section Three provides that each state is entitled to have two senators, who would be elected by its state legislature (now by the people of each state), serve for staggered six-year terms, and have one vote each. By these provisions, the framers of the Constitution intended to protect the interests of the states as states. [40] This clause has been superseded by the Seventeenth Amendment, ratified in 1913, which, in part, provides as amended, that

The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years and each Senator shall have one vote. [41]

Article Five specifies the means by which the Constitution of the United States can be amended. It ends by temporarily shielding three Article I clauses from being amended. This clause is among them. (The others are first and fourth clauses in Section 9.) Article Five provides that "no State, without its Consent, shall be deprived of its equal Suffrage in the Senate." Thus, no individual state may have its individual representation in the Senate adjusted without its consent. That is to say, an amendment that changed this clause to provide that all states would get only one senator (or three senators, or any other number) could become valid as part of the Constitution if ratified by three-fourths of the states however, one that provided for some basis of representation other than strict numerical equality (for example, population, wealth, or land area), would require the unanimous consent of all the states.

Denying the states their intended role as joint partners in the federal government by abolishing their equality in the Senate would, according to Chief Justice Salmon P. Chase (in Texas v. White), destroy the grounding of the Union. This Article V provision has been employed by those opposed to contemplated constitutional amendments that would grant the District of Columbia full representation in the Congress without also granting it statehood. Their argument is that an amendment that would allow a non-state district to have two senators would deprive the states of their equal suffrage in the Senate and would therefore require unanimous ratification by all the states. [42] Those in favor of the amendment have argued that the States are merely entitled to equal suffrage amongst one another, and that granting the federal district Senate representation does not violate that right. Whether unanimous consent of the 50 states would be required for such an amendment to become operative remains an unanswered political question.

Clause 2: Classification of senators Vacancies Edit

Immediately after they shall be assembled in Consequence of the first Election, they shall be divided as equally as may be into three Classes. The Seats of the Senators of the first Class shall be vacated at the Expiration of the second Year, of the second Class at the Expiration of the fourth Year, and of the third Class at the Expiration of the sixth Year, so that one third may be chosen every second Year and if Vacancies happen by Resignation, or otherwise, during the Recess of the Legislature of any State, the Executive thereof may make temporary Appointments until the next Meeting of the Legislature, which shall then fill such Vacancies.

After the first group of senators was elected to the First Congress (1789–1791), the senators were divided into three "classes" as nearly equal in size as possible, as required by this section. This was done in May 1789 by lot. It was also decided that each state's senators would be assigned to two different classes. Those senators grouped in the first class had their term expire after only two years those senators in the second class had their term expire after only four years, instead of six. After this, all senators from those states have been elected to six-year terms, and as new states have joined the Union, their Senate seats have been assigned to two of the three classes, maintaining each grouping as nearly equal in size as possible. In this way, election is staggered approximately one-third of the Senate is up for re-election every two years, but the entire body is never up for re-election in the same year (as contrasted with the House, where its entire membership is up for re-election every 2 years).

As originally established, senators were elected by the Legislature of the State they represented in the Senate. If a senator died, resigned, or was expelled, the legislature of the state would appoint a replacement to serve out the remainder of the senator's term. If the state legislature was not in session, its governor could appoint a temporary replacement to serve until the legislature could elect a permanent replacement. This was superseded by the Seventeenth Amendment, which provided for the popular election of senators, instead of their appointment by the state legislature. In a nod to the less populist nature of the Senate, the amendment tracks the vacancy procedures for the House of Representatives in requiring that the governor call a special election to fill the vacancy, but (unlike in the House) it vests in the state legislature the authority to allow the governor to appoint a temporary replacement until the special election is held. Note, however, that under the original Constitution, the governors of the states were expressly allowed by the Constitution to make temporary appointments. The current system, under the Seventeenth Amendment, allows governors to appoint a replacement only if their state legislature has previously decided to allow the governor to do so otherwise, the seat must remain vacant until the special election is held to fill the seat, as in the case of a vacancy in the House.

Clause 3: Qualifications of senators Edit

No Person shall be a Senator who shall not have attained to the Age of thirty Years, and been nine Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State for which he shall be chosen.

A senator must be at least 30 years of age, must have been a citizen of the United States for at least nine years before being elected, and must reside in the State they will represent at the time of the election. The Supreme Court has interpreted the Qualifications Clause as an exclusive list of qualifications that cannot be supplemented by a House of Congress exercising its Section 5 authority to "Judge. the. Qualifications of its own Members," [25] or by a state in its exercise of its Section 4 authority to prescribe the "Times, Places and Manner of holding Elections for Senators and Representatives. " [27]

Clause 4: Vice president as president of Senate Edit

The Vice President of the United States shall be President of the Senate, but shall have no Vote, unless they be equally divided.

Section Three provides that the vice president is the president of the Senate. Excepting the duty to receive the tally of electoral votes for president, this is the only regular responsibility assigned to the office of the vice president by the Constitution. When serving in this capacity, the vice president, who is not a member of the Senate, may cast tie-breaking votes. Early in the nation's history, vice presidents frequently presided over the Senate. In modern times, the vice president usually does so only during ceremonial occasions or when a tie in the voting is anticipated. As of December 21, 2018 [update] , a tie-breaking vote has been cast 268 times. [43]

Clause 5: President pro tempore and other officers Edit

The Senate shall chuse [sic] their other Officers, and also a President pro tempore, in the Absence of the Vice President, or when he shall exercise the Office of the President of the United States.

Clause five provides for a president pro tempore of the Senate, who is elected to the post by the Senate, to preside over the body when the vice president is either absent or exercising the powers and duties of the president.

Although the Constitutional text seems to suggest to the contrary, the Senate's current practice is to elect a full-time president pro tempore at the beginning of each Congress, as opposed to making it a temporary office only existing during the vice president's absence. Since World War II, the senior (longest serving) member of the majority party has filled this position. [44] As is true of the speaker of the House, [37] the Constitution does not require that the president pro tempore be a senator, but by convention, a senator is always chosen.

Clause 6: Trial of Impeachment Edit

The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present.

Clause Six grants to the Senate the sole power to try impeachments and spells out the basic procedures for impeachment trials. The Supreme Court has interpreted this clause to mean that the Senate has exclusive and unreviewable authority to determine what constitutes an adequate impeachment trial. [45] Of the nineteen federal officials formally impeached by the House of Representatives, four resigned (so that proceedings were dismissed), seven were acquitted, and eight (all judges) were convicted by the Senate.

On another occasion, the Senate declined to proceed with the impeachment of Senator William Blount in 1797, asserting that the House had no jurisdiction over members of the Senate in any case, Blount had already been expelled from the Senate. [46]

The constitution's framers vested the Senate with this power for several reasons. First, they believed senators would be better educated, more virtuous, and more high-minded than members of the House of Representatives and thus uniquely able to decide responsibly the most difficult of political questions. Second, they believed that the Senate, being a numerous body, would be well suited to handle the procedural demands of an impeachment trial, in which it, unlike judges and the judiciary system, would "never be tied down by such strict rules, either in the delineation of the offense by the prosecutor, or in the construction of it by judges, as in the common cases serve to limit the discretion of courts in favor of personal security." (Alexander Hamilton, The Federalist No. 65). [47]

There are three Constitutionally mandated requirements for impeachment trials. The provision that senators must sit on oath or affirmation was designed to impress upon them the extreme seriousness of the occasion. The stipulation that the Chief Justice is to preside over presidential impeachment trials underscores the solemnity of the occasion, and aims to avoid the conflict of interest of a vice president's presiding over the proceeding for the removal of the one official standing between them and the presidency. The latter consideration was regarded to be quite important in the eighteenth century - political parties had not yet formed when the Constitution was adopted, and with the original method of electing the president and vice president it was presumed that the two people elected to those offices would frequently be political rivals. The specification that a two-thirds super-majority vote of those senators present in order to convict was also thought necessary to facilitate serious deliberation and to make removal possible only through a consensus that cuts across factional divisions. [47]

Clause 7: Judgment in cases of impeachment Punishment on conviction Edit

Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.

If any officer or the President or the Vice President is convicted on impeachment, that person is immediately removed from office and may be barred from holding any federal office in the future. This is purely a political remedy which "touches neither his person, nor his property but simply divests him of his political capacity," however the convicted person remains liable to trial and punishment in the courts for civil and criminal charges. [48] The President can not reinstate an impeached officer with his Article II appointment power if such officers have been disqualified to hold any future federal office as part of their conviction. [49] : 36

Clause 1: Time, place, and manner of holding elections Edit

The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing [sic] Senators.

The purpose of this clause is twofold. First, it makes clear the division of responsibility with respect to the conduct of the election of federal senators and representatives. That responsibility lies primarily with the states and secondarily with Congress. Second, the clause lodges the power to regulate elections in the respective legislative branches of the states and the federal government. [50] As authorized by this clause, Congress has set a uniform date for federal elections: the Tuesday following the first Monday in November. [51]

Presently, as there are no on-point federal regulations, the states retain the authority to regulate the dates on which other aspects of the election process are held (registration, primary elections, etc.) and where elections will be held. As for regulating the "manner" of elections, the Supreme Court has interpreted this to mean "matters like notices, registration, supervision of voting, protection of voters, prevention of fraud and corrupt practices, counting of votes, duties of inspectors and canvassers, and making and publication of election returns." [52] The Supreme Court has held that States may not exercise their power to determine the "manner" of holding elections to impose term limits on their congressional delegation. [27]

One of the most significant ways that each state regulates the "manner" of elections is through their power to draw electoral districts. Although in theory Congress could draw the district map for each State, [53] it has not exercised this level of oversight. Congress has, however, required the States to conform to certain practices when drawing districts. States are currently required to use a single-member district scheme, whereby the State is divided into as many election districts for Representatives in the House of Representatives as the size of its representation in that body (that is to say, Representatives cannot be elected at-large from the whole State unless the State has only one Representative in the House, nor can districts elect more than 1 Representative). [54] The Supreme Court has interpreted "by the Legislature thereof" to include the state governor's veto, [55] and the initiative process, in those states whose constitutions provide it. [56]

Congress first exercised its power to regulate elections nation-wide in 1842, when the 27th Congress passed a law requiring the election of Representatives by districts. [57] In subsequent years, Congress expanded on the requirements, successively adding contiguity, compactness, and substantial equality of population to the districting requirements. These standards were all later deleted in the Reapportionment Act of 1929. [1] Congress subsequently reinstated the requirement that districts be composed of contiguous territory, be "compact," and have equal populations within each State. [58] Congress has allowed those requirements to lapse, [59] but the Supreme Court has re-imposed the population requirement on the States under the Equal Protection Clause [23] and is suspicious of districts that do not meet the other "traditional" districting criteria of compactness and contiguity. [60]

In 1865, Congress legislated a remedy for a situation under which deadlocks in state legislatures over the election of senators were creating vacancies in the office. The act required the two houses of each legislature to meet in joint session on a specified day and to meet every day thereafter until a senator was selected. The first comprehensive federal statute dealing with elections was adopted in 1870 as a means of enforcing the Fifteenth Amendment’s guarantee against racial discrimination in granting suffrage rights. Under the Enforcement Act of 1870, and subsequent laws, false registration, bribery, voting without legal right, making false returns of votes cast, interference in any manner with officers of election, and the neglect by any such officer of any duty required by state or federal law were made federal offenses. Provision was made for the appointment by federal judges of persons to attend at places of registration and at elections with authority to challenge any person proposing to register or vote unlawfully, to witness the counting of votes, and to identify by their signatures the registration of voters and election tally sheets. [1]

Beginning with the Tillman Act of 1907, Congress has imposed a growing number of restrictions on elections and campaign financing. The most significant piece of legislation has been the 1971 Federal Election Campaign Act. It was this legislation that was at issue in the Supreme Court's seminal decision, Buckley v. Valeo (1976), which, in the face of a First Amendment challenge, set the ground rules for campaign finance legislation, generally disallowing restrictions on expenditures by candidates, but permitting restrictions on contributions by individuals and corporations. [61]

In addition to statutory constraints, Congress and the States have altered the electoral process through amending the Constitution (first in the above mentioned Fifteenth Amendment). The Seventeenth Amendment altered the manner of conducting the elections of senators establishing that they are to be elected by the people of the states. Also, the Nineteenth Amendment prohibits any U.S. citizen from being denied the right to vote on the basis of sex the Twenty-fourth Amendment prohibits both Congress and the states from conditioning the right to vote in federal elections on payment of a poll tax or other types of tax and the Twenty-sixth Amendment prohibits the states and the federal government from using age as a reason for denying the right to vote to U.S. citizens who are at least eighteen years old.

Clause 2: Sessions of Congress Edit

The Congress shall assemble at least once in every Year, and such Meeting shall be on the first Monday in December, unless they shall by Law appoint a different Day.

Clause 2 fixes an annual date upon which Congress must meet. By doing so, the Constitution empowers Congress to meet, whether or not the president called it into session. Article II, Section 3 does grant the president limited authority to convene and adjourn both Houses (or either of them) and mandates that it will meet at least once in a year to enact legislation on behalf of the people. Some delegates to the 1787 constitutional convention believed yearly meetings were not necessary, for there would not be enough legislative business for Congress to deal with annually. Nathaniel Gorham of Massachusetts argued that the time should be fixed to prevent disputes from arising within the legislature, and to allow the states to adjust their elections to correspond with the fixed date. A fixed date also corresponded to the tradition in the states of having annual meetings. Finally, Gorham concluded that the legislative branch should be required to meet at least once a year to act as a check upon the executive department. [62]

Although this clause provides that the annual meeting was to be on the first Monday in December, the government established by the 1787 Constitution did not begin operations until March 4, 1789. As the 1st Congress held its initial meeting on March 4, that became the date on which new representatives and senators took office in subsequent years. [63] Therefore, every other year, although a new Congress was elected in November, it did not come into office until the following March, with a "lame duck" session convening in the interim. This practice was altered in 1933 following ratification of the Twentieth Amendment, which states (in Section 2) that, "The Congress shall assemble at least once in every year, and such meeting shall begin at noon on the third day of January, unless they shall by law appoint a different day". This change virtually eliminated the necessity of there being a lame duck session of Congress.

Clause 1: Electoral judgement Quorum Edit

Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members, and a Majority of each shall constitute a Quorum to do Business but a smaller Number may adjourn from day to day, and may be authorized to compel the Attendance of absent Members, in such Manner, and under such Penalties as each House may provide.

Section Five states that a majority of each House constitutes a quorum to do business a smaller number may adjourn the House or compel the attendance of absent members. In practice, the quorum requirement is not followed, as a quorum is assumed to be present unless a quorum call, requested by a member, proves otherwise. Rarely do members ask for quorum calls to demonstrate the absence of a quorum more often, they use the quorum call as a delaying tactic.

Sometimes, unqualified individuals have been admitted to Congress. For instance, the Senate once admitted John Henry Eaton, a twenty-eight-year-old, in 1818 (the admission was inadvertent, as Eaton's birth date was unclear at the time). In 1934, a twenty-nine-year-old, Rush Holt, was elected to the Senate he agreed to wait six months, until his thirtieth birthday, to take the oath. The Senate ruled in that case that the age requirement applied as of the date of the taking of the oath, not the date of election.

Clause 2: Rules Edit

Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behavior, and, with the Concurrence of two thirds, expel a member.

Each House can determine its own Rules (assuming a quorum is present), and may punish any of its members. A two-thirds vote is necessary to expel a member. Section 5, Clause 2 does not provide specific guidance to each House regarding when and how each House may change its rules, leaving details to the respective chambers.

Clause 3: Record of proceedings Edit

Each House shall keep a Journal of its Proceedings, and from time to time publish the same, excepting such Parts as may in their Judgment require Secrecy and the Yeas and Nays of the Members of either House on any question shall, at the desire of one fifth of those present, be entered on the Journal.

Each House must keep and publish a Journal, though it may choose to keep any part of the Journal secret. The proceedings of the House are recorded in the Journal if one-fifth of those present (assuming a quorum is present) request it, the votes of the members on a particular question must also be entered.

Clause 4: Adjournment Edit

Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days, nor to any other Place than that in which the two Houses shall be sitting.

Neither House may adjourn, without the consent of the other, for more than three days. Often, a House will hold pro forma sessions every three days such sessions are merely held to fulfill the constitutional requirement, and not to conduct business. Furthermore, neither House may meet in any place other than that designated for both Houses (the Capitol), without the consent of the other House.

Clause 1: Compensation and legal protection Edit

The Senators and Representatives shall receive a Compensation for their Services, to be ascertained by Law, and paid out of the Treasury of the United States. They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same and for any Speech or Debate in either House, they shall not be questioned in any other Place.

Senators and representatives set their own compensation. Under the Twenty-seventh Amendment, any change in their compensation will not take effect until after the next congressional election. Paying senators and representatives out of the federal treasury was a departure from the practice under the Articles of Confederation, where they were paid by the state in which they were elected. [64]

Members of both houses have certain privileges, based on those enjoyed by the members of the British Parliament. Members attending, going to or returning from either house are privileged from arrest, except for treason, felony or breach of the peace. One may not sue a senator or representative for slander occurring during Congressional debate, nor may speech by a member of Congress during a Congressional session be the basis for criminal prosecution. The latter was affirmed when Mike Gravel published over 4,000 pages of the Pentagon Papers in the Congressional Record, which might have otherwise been a criminal offense. This clause has also been interpreted in Gravel v. United States, 408 U.S. 606 (1972) to provide protection to aides and staff of sitting members of Congress, so long as their activities relate to legislative matters.

Clause 2: Independence from the executive Edit

No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been increased during such time and no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office.

Senators and representatives may not simultaneously serve in Congress and hold a position in the executive branch. This restriction is meant to protect legislative independence by preventing the president from using patronage to buy votes in Congress. [64] It is a major difference from the political system in the British Parliament, where cabinet ministers are required to be members of parliament.

Furthermore, senators and representatives cannot resign to take newly created or higher-paying political positions rather, they must wait until the conclusion of the term for which they were elected. If Congress increases the salary of a particular officer, it may later reduce that salary to permit an individual to resign from Congress and take that position (known as the Saxbe fix). The effects of the clause were discussed in 1937, when Senator Hugo Black was appointed an associate justice of the Supreme Court with some time left in his Senate term. Just prior to the appointment, Congress had increased the pension available to Justices retiring at the age of seventy. It was therefore suggested by some that the office's emolument had been increased during Black's senatorial term, and that therefore Black could not take office as a justice. The response, however, was that Black was fifty-one years old, and would not receive the increased pension until at least 19 years later, long after his Senate term had expired.

Clause 1: Bills of revenue Edit

All Bills for raising Revenue shall originate in the House of Representatives but the Senate may propose or concur with Amendments as on other Bills.

This establishes the method for making Acts of Congress that involve taxation. Accordingly, any bill may originate in either House of Congress, except for a revenue bill, which may originate only in the House of Representatives. In practice, the Senate sometimes circumvents this requirement by substituting the text of a revenue bill previously passed by the House with a substitute text. [65] [66] Either House may amend any bill, including revenue and appropriation bills.

This clause of the U.S. Constitution stemmed from an English parliamentary practice that all money bills must have their first reading in the House of Commons. This practice was intended to ensure that the power of the purse is possessed by the legislative body most responsive to the people, although the English practice was modified in America by allowing the Senate to amend these bills. The clause was part of the Great Compromise between small and large states the large states were unhappy with the lopsided power of small states in the Senate, and so the clause theoretically offsets the unrepresentative nature of the Senate, and compensates the large states for allowing equal voting rights to senators from small states. [67]

Clause 2: From bill to law Edit

Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States If he approve he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it. If after such Reconsideration two thirds of that House shall agree to pass the Bill, it shall be sent, together with the Objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a Law. But in all such Cases the Votes of both Houses shall be determined by yeas and Nays, and the Names of the Persons voting for and against the Bill shall be entered on the Journal of each House respectively. If any Bill shall not be returned by the President within ten Days (Sundays excepted) after it shall have been presented to him, the Same shall be a Law, in like Manner as if he had signed it, unless the Congress by their Adjournment prevent its Return, in which Case it shall not be a Law.

This clause is known as the Presentment Clause. Before a bill becomes law, it must be presented to the president, who has ten days (excluding Sundays) to act upon it. If the president signs the bill, it becomes law. However, to propose a constitutional amendment, two-thirds of both Houses may submit it to the states for the ratification, without any consideration by the president, as prescribed in Article V. If he disapproves of the bill, he must return it to the House in which it originated together with his objections. This procedure has become known as the veto, although that particular word does not appear in the text of Article One. The bill does not then become law unless both Houses, by two-thirds votes, override the veto. In overriding a veto, the votes of both houses must be done by yeas and nays, and the names of the persons voting for and against the bill must be recorded. If the president neither signs nor returns the bill within the ten-day limit, the bill becomes law, unless the Congress has adjourned in the meantime, thereby preventing the president from returning the bill to the House in which it originated. In the latter case, the president, by taking no action on the bill towards the end of a session, exercises a "pocket veto", which Congress may not override. In the former case, where the president allows a bill to become law unsigned, there is no common name for the practice, but recent scholarship has termed it a "default enactment." [68]

What exactly constitutes an adjournment for the purposes of the pocket veto has been unclear. In the Pocket Veto Case (1929), the Supreme Court held that "the determinative question in reference to an 'adjournment' is not whether it is a final adjournment of Congress or an interim adjournment, such as an adjournment of the first session, but whether it is one that 'prevents' the president from returning the bill to the House in which it originated within the time allowed." Since neither House of Congress was in session, the president could not return the bill to one of them, thereby permitting the use of the pocket veto. In Wright v. United States (1938), however, the Court ruled that adjournments of one House only did not constitute an adjournment of Congress required for a pocket veto. In such cases, the Secretary or Clerk of the House in question was ruled competent to receive the bill.

Some presidents have made very extensive use of the veto, while others have not used it at all. Grover Cleveland, for instance, vetoed over four hundred bills during his first term in office Congress overrode only two of those vetoes. Meanwhile, seven presidents have never used the veto power. There have been 2,560 vetoes, including pocket vetoes. [69]

In 1996, Congress passed the Line Item Veto Act, which permitted the president, at the time of the signing of the bill, to rescind certain expenditures. The Congress could disapprove the cancellation and reinstate the funds. The president could veto the disapproval, but the Congress, by a two-thirds vote in each House, could override the veto. In the case Clinton v. City of New York, the Supreme Court found the Line Item Veto Act unconstitutional because it violated the Presentment clause. First, the procedure delegated legislative powers to the president, thereby violating the nondelegation doctrine. Second, the procedure violated the terms of Section Seven, which state, "if he approve [the bill] he shall sign it, but if not he shall return it." Thus, the president may sign the bill, veto it, or do nothing, but he may not amend the bill and then sign it.

Clause 3: Resolutions Edit

Every Order, Resolution, or Vote to which the Concurrence of the Senate and House of Representatives may be necessary (except on a question of Adjournment) shall be presented to the President of the United States and before the Same shall take Effect, shall be approved by him, or being disapproved by him, shall be repassed by two thirds of the Senate and House of Representatives, according to the Rules and Limitations prescribed in the Case of a Bill.

Every order, resolution, or vote that must be passed by both Houses, except on a question of adjournment, must also be presented to the president before taking effect, just as with bills that become law.

Enumerated powers Edit

Congress's legislative powers are enumerated in Section Eight. Its 18 clauses are, in order:

  • To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common defence[note 1]and general Welfare of the United States but all Duties, Imposts and Excises shall be uniform throughout the United States
  • To borrow Money on the credit of the United States
  • To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes
  • To establish a uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States
  • To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures
  • To provide for the Punishment of counterfeiting the Securities and current coin of the United States
  • To establishPost Offices and post Roads
  • 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
  • To constitute Tribunals inferior to the Supreme Court
  • To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations
  • To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water
  • To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years
  • To provide and maintain a Navy
  • To make Rules for the Government and Regulation of the land and naval Forces
  • To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions
  • 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
  • To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles 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, dock-Yards, and other needful Buildings—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.

Many powers of Congress have been granted under a broad interpretation of Article 1, section 8. Most notably, Clauses 1 (the General Welfare or Taxing and Spending clause), 3 (the Commerce clause), and 18 (The Necessary and Proper clause) have been deemed to grant expansive powers to Congress. These three clauses have been interpreted so broadly that the federal government of the United States exercises many powers that are not expressly delegated to it by the states under the Constitution. Some point to the various social programs of the American welfare state as a prime example, and not all agree with this broad interpretation. James Madison, who wrote much of the Constitution, asserted that Congress could not exercise powers unless they were expressly granted in the Constitution. While he was president of the United States, Madison vetoed the Federal Public Works Bill of 1817, calling it unconstitutional, since in his view the federal government did not have the authority to build infrastructure. [70] [71] [72]

Clause 1: the General Welfare Clause Edit

This clause is also referred to as the Spending Clause and the Taxing and Spending Clause. [73] It states that Congress may lay and collect taxes for the "common defense" or "general welfare" of the United States. The U.S. Supreme Court has not often defined "general welfare," leaving the political question to Congress. In United States v. Butler (1936), the Court for the first time construed the clause. The dispute centered on a tax collected from processors of agricultural products such as meat the funds raised by the tax were not paid into the general funds of the treasury, but were rather specially earmarked for farmers. The Court struck down the tax, ruling that the general welfare language in the Taxing and Spending Clause related only to "matters of national, as distinguished from local, welfare". Congress continues to make expansive use of the Taxing and Spending Clause for instance, the social security program is authorized under the Taxing and Spending Clause.

Clause 2: Borrowing Power Edit

Congress has the power to borrow money on the credit of the United States. In 1871, when deciding Knox v. Lee, the Court ruled that this clause permitted Congress to emit bills and make them legal tender in satisfaction of debts. Whenever Congress borrows money, it is obligated to repay the sum as stipulated in the original agreement. However, such agreements are only "binding on the conscience of the sovereign", as the doctrine of sovereign immunity prevents a creditor from suing in court if the government reneges on its commitment. [74]

Clause 3: Commerce Clause Edit

The Congress shall have Power [. ] To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes

The Supreme Court has seldom restrained the use of the commerce clause for widely varying purposes. The first important decision related to the commerce clause was Gibbons v. Ogden, decided by a unanimous Court in 1824. The case involved conflicting federal and state laws: Thomas Gibbons had a federal permit to navigate steamboats in the Hudson River, while the other, Aaron Ogden, had a monopoly to do the same granted by the state of New York. Ogden contended that "commerce" included only buying and selling of goods and not their transportation. Chief Justice John Marshall rejected this notion. Marshall suggested that "commerce" included navigation of goods, and that it "must have been contemplated" by the Framers. Marshall added that Congress's power over commerce "is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations other than are prescribed in the Constitution".

The expansive interpretation of the Commerce Clause was restrained during the late nineteenth and early twentieth centuries, when a laissez-faire attitude dominated the Court. In United States v. E. C. Knight Company (1895), the Supreme Court limited the newly enacted Sherman Antitrust Act, which had sought to break up the monopolies dominating the nation's economy. The Court ruled that Congress could not regulate the manufacture of goods, even if they were later shipped to other states. Chief Justice Melville Fuller wrote, "commerce succeeds to manufacture, and is not a part of it."

The U.S. Supreme Court sometimes ruled New Deal programs unconstitutional because they stretched the meaning of the commerce clause. In Schechter Poultry Corp. v. United States, (1935) the Court unanimously struck down industrial codes regulating the slaughter of poultry, declaring that Congress could not regulate commerce relating to the poultry, which had "come to a permanent rest within the State." As Chief Justice Charles Evans Hughes put it, "so far as the poultry here in question is concerned, the flow of interstate commerce has ceased." Judicial rulings against attempted use of Congress's Commerce Clause powers continued during the 1930s.

In 1937, the Supreme Court began moving away from its laissez-faire attitude concerning Congressional legislation and the Commerce Clause, when it ruled in National Labor Relations Board v. Jones & Laughlin Steel Company, that the National Labor Relations Act of 1935 (commonly known as the Wagner Act) was constitutional. The legislation under scrutiny prevented employers from engaging in "unfair labor practices" such as firing workers for joining unions. In sustaining this act, the Court signaled its return to the philosophy espoused by John Marshall, that Congress could pass laws regulating actions that even indirectly influenced interstate commerce.

This new attitude became firmly set into place in 1942. In Wickard v. Filburn, the Court ruled that production quotas under the Agricultural Adjustment Act of 1938 were constitutionally applied to agricultural production (in this instance, home-grown wheat for private consumption) that was consumed purely intrastate, because its effect upon interstate commerce placed it within the power of Congress to regulate under the Commerce Clause. This decision marked the beginning of the Court's total deference to Congress' claims of Commerce Clause powers, which lasted into the 1990s.

United States v. Lopez (1995) was the first decision in six decades to invalidate a federal statute on the grounds that it exceeded the power of the Congress under the Commerce Clause. The Court held that while Congress had broad lawmaking authority under the Commerce Clause, the power was limited, and did not extend so far from "commerce" as to authorize the regulation of the carrying of handguns, especially when there was no evidence that carrying them affected the economy on a massive scale. In a later case, United States v. Morrison (2000), the justices ruled that Congress could not make such laws even when there was evidence of aggregate effect.

In contrast to these rulings, the Supreme Court also continues to follow the precedent set by Wickard v. Filburn. In Gonzales v. Raich it ruled that the Commerce Clause granted Congress the authority to criminalize the production and use of home-grown cannabis even where states approve its use for medicinal purposes. The court held that, as with the agricultural production in the earlier case, home-grown cannabis is a legitimate subject of federal regulation because it competes with marijuana that moves in interstate commerce.

Other powers of Congress Edit

Congress may establish uniform laws relating to naturalization and bankruptcy. It may also coin money, regulate the value of American or foreign currency and punish counterfeiters. Congress may fix the standards of weights and measures. Furthermore, Congress may establish post offices and post roads (the roads, however, need not be exclusively for the conveyance of mail). Congress may promote the progress of science and useful arts by granting copyrights and patents of limited duration. Section eight, clause eight of Article One, known as the Copyright Clause, is the only instance of the word "right" used in the original constitution (though the word does appear in several Amendments). [75] Though perpetual copyrights and patents are prohibited, the Supreme Court has ruled in Eldred v. Ashcroft (2003) that repeated extensions to the term of copyright do not constitute perpetual copyright also note that this is the only power granted where the means to accomplish its stated purpose is specifically provided for. Courts inferior to the Supreme Court may be established by Congress.

Congress has several powers related to war and the armed forces. Under the War Powers Clause, only Congress may declare war, but in several cases it has, without declaring war, granted the president the authority to engage in military conflicts. Five wars have been declared in United States' history: the War of 1812, the Mexican–American War, the Spanish–American War, World War I and World War II. Some historians argue that the legal doctrines and legislation passed during the operations against Pancho Villa constitute a sixth declaration of war. Congress may grant letters of marque and reprisal. Congress may establish and support the armed forces, but no appropriation made for the support of the army may be used for more than two years. This provision was inserted because the Framers feared the establishment of a standing army, beyond civilian control, during peacetime. Congress may regulate or call forth the state militias, but the states retain the authority to appoint officers and train personnel. Congress also has exclusive power to make rules and regulations governing the land and naval forces. Although the executive branch and the Pentagon have asserted an ever-increasing measure of involvement in this process, the U.S. Supreme Court has often reaffirmed Congress's exclusive hold on this power (e.g. Burns v. Wilson, 346 U.S. 137 (1953)). Congress used this power twice soon after World War II with the enactment of two statutes: the Uniform Code of Military Justice to improve the quality and fairness of courts martial and military justice, and the Federal Tort Claims Act which among other rights had allowed military service persons to sue for damages until the U.S. Supreme Court repealed that section of the statute in a divisive series of cases, known collectively as the Feres Doctrine.

Congress has the exclusive right to legislate "in all cases whatsoever" for the nation's capital, the District of Columbia. Congress chooses to devolve some of such authority to the elected mayor and council of District of Columbia. Nevertheless, Congress remains free to enact any legislation for the District so long as constitutionally permissible, to overturn any legislation by the city government, and technically to revoke the city government at any time. Congress may also exercise such jurisdiction over land purchased from the states for the erection of forts and other buildings.

Clause 18: Implied Powers of Congress (Necessary and Proper) Edit

The Congress shall have Power [. ] 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.

Finally, Congress has the power to do whatever is "necessary and proper" to carry out its enumerated powers and, crucially, all others vested in it. This has been interpreted to authorize criminal prosecution of those whose actions have a "substantial effect" on interstate commerce in Wickard v. Filburn however, Thomas Jefferson, in the Kentucky Resolutions, supported by James Madison, maintained that a penal power could not be inferred from a power to regulate, and that the only penal powers were for treason, counterfeiting, piracy and felony on the high seas, and offenses against the law of nations.

The necessary and proper clause has been interpreted extremely broadly, thereby giving Congress wide latitude in legislation. The first landmark case involving the clause was McCulloch v. Maryland (1819), which involved the establishment of a national bank. Alexander Hamilton, in advocating the creation of the bank, argued that there was "a more or less direct" relationship between the bank and "the powers of collecting taxes, borrowing money, regulating trade between the states, and raising and maintaining fleets and navies". Thomas Jefferson countered that Congress's powers "can all be carried into execution without a national bank. A bank therefore is not necessary, and consequently not authorized by this phrase". Chief Justice John Marshall agreed with the former interpretation. Marshall wrote that a Constitution listing all of Congress's powers "would partake of a prolixity of a legal code and could scarcely be embraced by the human mind". Since the Constitution could not possibly enumerate the "minor ingredients" of the powers of Congress, Marshall "deduced" that Congress had the authority to establish a bank from the "great outlines" of the general welfare, commerce and other clauses. Under this doctrine of the necessary and proper clause, Congress has sweepingly broad powers (known as implied powers) not explicitly enumerated in the Constitution. However, the Congress cannot enact laws solely on the implied powers, any action must be necessary and proper in the execution of the enumerated powers.

The ninth section of Article One places limits on federal powers, including those of Congress: [76] [77]

The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a Tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person.

The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.

No Bill of attainder or ex post facto Law shall be passed.

No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken.

No Tax or Duty shall be laid on Articles exported from any State.

No Preference shall be given by any Regulation of Commerce or Revenue to the Ports of one State over those of another: nor shall Vessels bound to, or from, one State, be obliged to enter, clear, or pay Duties in another.

No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law and a regular Statement and Account of Receipts and Expenditures of all public Money shall be published from time to time.

No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.

Clause 1: Slave trade Edit

The first clause in this section prevents Congress from passing any law that would restrict the importation of slaves into the United States prior to 1808. Congress could, however, levy a per capita duty of up to ten Spanish milled dollars for each slave imported into the country. This clause was further entrenched into the Constitution by Article V, where it is explicitly shielded from constitutional amendment prior to 1808. On March 2, 1807, Congress approved legislation prohibiting the importation of slaves into the United States, which went into effect January 1, 1808, the first day of the prohibition permitted by the Constitution.

Clauses 2 and 3: Civil and legal protections Edit

A writ of habeas corpus is a legal action against unlawful detainment that commands a law enforcement agency or other body that has a person in custody to have a court inquire into the legality of the detention. The court may order the person released if the reason for detention is deemed insufficient or unjustifiable. The Constitution further provides that the privilege of the writ of habeas corpus may not be suspended "unless when in cases of rebellion or invasion the public safety may require it". In Ex parte Milligan (1866), the Supreme Court ruled that the suspension of habeas corpus in a time of war was lawful, but military tribunals did not apply to citizens in states that had upheld the authority of the Constitution and where civilian courts were still operating.

A bill of attainder is a law by which a person is immediately convicted without trial. An ex post facto law is a law which applies retroactively, punishing someone for an act that was only made criminal after it was done. The ex post facto clause does not apply to civil matters. [78]

Clauses 4–7: Apportionment of direct taxes Edit

Section Nine reiterates the provision from Section Two, Clause 3 that direct taxes must be apportioned by state populations. This clause was also explicitly shielded from constitutional amendment prior to 1808 by Article V. In 1913, the 16th Amendment exempted all income taxes from this clause. This overcame the ruling in Pollock v. Farmers' Loan & Trust Co. that the income tax could only be applied to regular income and could not be applied to dividends and capital gains. Furthermore, no tax may be imposed on exports from any state. Congress may not, by revenue or commerce legislation, give preference to ports of one state over those of another neither may it require ships from one state to pay duties in another. All funds belonging to the Treasury may not be withdrawn except according to law. Modern practice is that Congress annually passes a number of appropriations bills authorizing the expenditure of public money. The Constitution requires that a regular statement of such expenditures be published.

Clause 8: Titles of nobility Edit

The Title of Nobility Clause prohibits Congress from granting any title of nobility. In addition, it specifies that no civil officer may accept, without the consent of Congress, any gift, payment, office or title from a foreign ruler or state. Emoluments were a profound concern of the Founders. [79] However, a U.S. citizen may receive foreign office before or after their period of public service.

Clause 1: Contract Clause Edit

No State shall enter into any Treaty, Alliance, or Confederation grant Letters of Marque and Reprisal coin Money emit Bills of Credit make any Thing but gold and silver Coin a Tender in Payment of Debts pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.

States may not exercise certain powers reserved for the federal government: they may not enter into treaties, alliances or confederations, grant letters of marque or reprisal, coin money or issue bills of credit (such as currency). Furthermore, no state may make anything but gold and silver coin a tender in payment of debts, which expressly forbids any state government (but not the federal government [80] ) from "making a tender" (i.e., authorizing something that may be offered in payment [81] ) of any type or form of money to meet any financial obligation, [note 2] unless that form of money is coins made of gold or silver (or a medium of exchange backed by and redeemable in gold or silver coins, as noted in Farmers & Merchants Bank v. Federal Reserve Bank [82] ). Much of this clause is devoted to preventing the States from using or creating any currency other than that created by Congress. In Federalist no. 44, Madison explains that "it may be observed that the same reasons which shew the necessity of denying to the States the power of regulating coin, prove with equal force that they ought not to be at liberty to substitute a paper medium in the place of coin. Had every State a right to regulate the value of its coin, there might be as many different currencies as States and thus the intercourse among them would be impeded". [83] Moreover, the states may not pass bills of attainder, enact ex post facto laws, impair the obligation of contracts, or grant titles of nobility.

The Contract Clause was the subject of much contentious litigation in the 19th century. It was first interpreted by the Supreme Court in 1810, when Fletcher v. Peck was decided. The case involved the Yazoo land scandal, in which the Georgia legislature authorized the sale of land to speculators at low prices. The bribery involved in the passage of the authorizing legislation was so blatant that a Georgia mob attempted to lynch the corrupt members of the legislature. Following elections, the legislature passed a law that rescinded the contracts granted by the corrupt legislators. The validity of the annulment of the sale was questioned in the Supreme Court. In writing for a unanimous court, Chief Justice John Marshall asked, "What is a contract?" His answer was: "a compact between two or more parties". Marshall argued that the sale of land by the Georgia legislature, though fraught with corruption, was a valid "contract". He added that the state had no right to annul the purchase of the land, since doing so would impair the obligations of contract.

The definition of a contract propounded by Chief Justice Marshall was not as simple as it may seem. In 1819, the Court considered whether a corporate charter could be construed as a contract. The case of Trustees of Dartmouth College v. Woodward involved Dartmouth College, which had been established under a Royal Charter granted by King George III. The Charter created a board of twelve trustees for the governance of the College. In 1815, however, New Hampshire passed a law increasing the board's membership to twenty-one with the aim that public control could be exercised over the College. The Court, including Marshall, ruled that New Hampshire could not amend the charter, which was ruled to be a contract since it conferred "vested rights" on the trustees.

The Marshall Court determined another dispute in Sturges v. Crowninshield. The case involved a debt that was contracted in early 1811. Later in that year, the state of New York passed a bankruptcy law, under which the debt was later discharged. The Supreme Court ruled that a retroactively applied state bankruptcy law impaired the obligation to pay the debt, and therefore violated the Constitution. In Ogden v. Saunders (1827), however, the court decided that state bankruptcy laws could apply to debts contracted after the passage of the law. State legislation on the issue of bankruptcy and debtor relief has not been much of an issue since the adoption of a comprehensive federal bankruptcy law in 1898.

Clause 2: Import-Export Clause Edit

No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing it's [sic] inspection Laws: and the net Produce of all Duties and Imposts, laid by any State on Imports or Exports, shall be for the Use of the Treasury of the United States and all such Laws shall be subject to the Revision and Controul [sic] of the Congress.

Still more powers are prohibited of the states. States may not, without the consent of Congress, tax imports or exports except for the fulfillment of state inspection laws (which may be revised by Congress). The net revenue of the tax is paid not to the state, but to the federal Treasury.

Clause 3: Compact Clause Edit

No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.

Under the Compact Clause, states may not, without the consent of Congress, keep troops or armies during times of peace, or enter into agreements with other states or with foreign governments. Furthermore, states may not engage in war unless invaded. States may, however, organize and arm a militia according to the discipline prescribed by Congress. The National Guard, whose members are also members of the militia as defined by 10 U.S.C. § 311, fulfill this function, as do persons serving in a state defense force with federal oversight under 32 U.S.C. § 109. [ citation needed ]

The idea of allowing Congress to have say over agreements between states traces back to the numerous controversies that arose between various colonies. Eventually compromises would be created between the two colonies and these compromises would be submitted to the Crown for approval. After the American Revolutionary War, the Articles of Confederation allowed states to appeal to Congress to settle disputes between the states over boundaries or "any cause whatever". The Articles of Confederation also required Congressional approval for "any treaty or alliance" in which a state was one of the parties. [ citation needed ]

A number of Supreme Court cases have concerned what constitutes valid Congressional consent to an interstate compact. In Virginia v. Tennessee, 148 U.S. 503 (1893), the Court found that some agreements among states stand even when lacking the explicit consent of Congress. One example the court gave was a state moving some goods from a distant state to itself, for which it would not require Congressional approval to contract with another state to use its canals for transport. According to the Court, the Compact Clause requires Congressional consent only if the agreement among the states is "directed to the formation of any combination tending to the increase of political power in the States, which may encroach upon or interfere with the just supremacy of the United States". [84]

The Congressional consent issue is at the center of the current debate over the constitutionality of the not yet effective National Popular Vote Interstate Compact entered into by fifteen states plus the District of Columbia. [85]


Watch the video: Unit 2 slides 16-22 (December 2021).