Powers of the United States Congress

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Building with dome; pond in front.
Congress meets in the United States Capitol.

Powers of the United States Congress are set forth by the United States Constitution, defined by rulings of the Supreme Court, and by its own efforts and by other factors such as history and custom. It is the chief legislative body of the United States. Some powers are explicitly defined by the Constitution and are called enumerated powers; others have been assumed to exist and are called implied powers.

Contents

General powers

Painting of men in a formal political meeting.
Former US general George Washington presided over the signing of the United States Constitution which included Alexander Hamilton, Benjamin Franklin, and James Madison.

Article I of the Constitution sets forth most of the powers of Congress, which include numerous explicit powers enumerated in Section 8. Constitutional amendments have granted Congress additional powers. Congress also has implied powers derived from the Necessary and Proper Clause of the Constitution.

$100,000 dollar bill.
Congress has the power of the purse and it can tax citizens, spend money, and authorize the printing of currency such as this bill for $100,000.

Congress has authority over financial and budgetary matters, through the enumerated power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States. There is vast authority over budgets, although analyst Eric Patashnik suggests that much of Congress's power to manage the budget has been lost when the entitlement state expanded since "entitlements were institutionally detached from Congress's ordinary legislative routine and rhythm."[1] Another factor leading to less control over the budget was a general belief, according to Keynesian economics, that balanced budgets were not necessary, and that it wasn't important to balance the budget in any given year as long as that budgets tended to remain in balance over the long term.[1]

The Sixteenth Amendment, ratified in 1913, extended power of taxation to include income taxes.[2] Georgetown constitutional scholar Randy Barnett argued for repeal of this amendment since it gives Congress "carte blanche" to do whatever it wants.[3] Barnett doubted that efforts promoting tax simplification such as FairTax or implementation of two flat rates (14% and 28%) are unlikely to happen without a constitutional amendment, since lawmakers are loath to part with their taxing power.[3] The Constitution also grants Congress exclusively the power to appropriate funds. This power of the purse is one of Congress' primary checks on the executive branch.[2] Other powers granted to Congress include the authority to borrow money on the credit of the United States, regulate commerce with foreign nations and among the states, and coin money.[4] Generally both Senate and House have equal legislative authority although only the House may originate revenue and appropriation bills.[5]

Aircraft carrier at sea.
Congress authorizes defense spending to buy and maintain aircraft carriers such as the USS Bon Homme Richard. The name Richard is from a rough French language reference to Benjamin Franklin's Poor Richard's Almanac meaning Good man Richard.

The Constitution also gives Congress an important role in national defense, including the exclusive power to declare war, to raise and maintain the armed forces, and to make rules for the military.[6] Some critics charge that the executive branch has usurped Congress's Constitutionally-defined task of declaring war.[7] While historically presidents initiated the process for going to war, they asked for and received formal war declarations from Congress for the War of 1812, the Mexican–American War, the Spanish–American War, World War I, and World War II,[8] although President Theodore Roosevelt's military move into Panama in 1903 did not get Congressional assent.[8] Presidents have initiated war without Congressional war declarations for the Korean War, the Vietnam War,[8] and described these conflicts as "police actions".[citation needed] In 1970, Time magazine noted: "All told, it has been calculated, U.S. presidents have ordered troops into position or action without a formal congressional declaration a total of 149 times" before 1970.[8] In 1993, one writer noted "Congress's war power has become the most flagrantly disregarded provision in the Constitution," and that the "real erosion (of Congressional authority to declare war) began after World War II."[9] President George H. W. Bush claimed he could begin Operation Desert Storm and launch a "deliberate, unhurried, post–Cold War decision to start a war" without Congressional approval.[9] Critics charge that President George W. Bush largely initiated the Iraq War with little debate in Congress or consultation with Congress, despite a Congressional vote on military force authorization.[10][11] Disagreement about the extent of congressional versus presidential power regarding war has been present periodically throughout the nation's history.[12]

Building with columns behind trees.
An enumerated congressional power is to establish post offices including this one in Athens, Georgia, pictured in 1942.

Congress also has the power to establish post offices and post roads, issue patents and copyrights, fix standards of weights and measures, establish courts inferior to the Supreme Court, and "To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof." Article Four gives Congress the power to admit new states into the Union.

Seated suits behind a microphone.
One congressional power is oversight of other branches of the government. In the early 1970s, the Senate investigated the activities of President Richard Nixon regarding Watergate which led to the president's resignation.

One of the foremost non-legislative functions of the Congress is the power to investigate and to oversee the executive branch.[13] Congressional oversight is usually delegated to committees and is facilitated by Congress' subpoena power.[14] Some critics have charged that Congress has in some instances failed to do an adequate job of overseeing the other branches of government. In the Valerie Plame Wilson episode sometimes known as the Plame affair, some critics, including Representative Henry A. Waxman, charged that Congress was not doing an adequate job of oversight in this case.[15] Other critics charge Congress was lax in its oversight duties regarding presidential actions such as warrantless wiretapping, although others respond that Congress did investigate the legality of decisions by President George W. Bush involving such matters.[16] Political academics Ornstein and Mann have argued that there are "no votes in oversight" and members of Congress have, in recent years, decided to prioritize local interests over national issues and oversight, spending more time in their states and districts than in Washington.

Seven men wearing suits posing for a group picture.
Congress has the power to impeach officials including the president. In 1868, this committee helped impeach president Andrew Johnson who was almost convicted; Johnson stayed in office.

Congress also has the exclusive impeachment power, allowing impeachment, trial, and removal of the President, federal judges and other federal officers.[17]

President George W. Bush behind a podium.
President George W. Bush making a signing statement after signing H.R. 2642 in 2008.

Some contend that the presidency, acting under the doctrine of the unitary executive, has assumed important legislative and budgetary powers that should belong to Congress. One critic charged that presidents can appoint a "virtual army of 'czars' -- each wholly unaccountable to Congress yet tasked with spearheading major policy efforts for the White House".[18] "Vesting such broad authority in the hands of people not subjected to Senate confirmation and congressional oversight poses a grave threat to our system of checks and balances," according to this critic.[18] Presidents have been accused of "trying to bring more and more power into the executive branch and not going through Congress at all."[18] So-called signing statements are one way in which a president can "tip the balance of power between Congress and the White House a little more in favor of the executive branch," according to one account.[19] Past presidents, including Ronald Reagan, George H. W. Bush, Bill Clinton, and George W. Bush[20] have made public statements when signing congressional legislation about how they understand a bill or plan to execute it, and commentators have described this practice as against the spirit of the Constitution.[21] There is some evidence that President Barack Obama intends to limit but not abandon this practice.[22] During the George W. Bush presidency, administration officials argued for an "expansive view of presidential power,"[23] with requests for broader presidential power; in 2009, a treasury secretary asked Congress for "unprecedented powers to initiate the seizure of non-bank financial companies, such as large insurers, investment firms and hedge funds, whose collapse would damage the broader economy."[24] In 2008, critic George F. Will called the Capitol building a "tomb for the antiquated idea that the legislative branch matters."[25] He wrote: "On Friday the president gave the two automakers access to money Congress explicitly did not authorize" and elaborated that this was more evidence of the "marginalization" of Congress.[25] Will sees an "increasingly swollen executive branch" and "the eclipse of Congress" and said that this process has been continuing "for decades."[25]

Enumerated powers

Among the powers specifically given Congress in Article I Section 8, are the following:

Drawing of a pirate on a beach with a chest.
One of many congressional powers is to "define and punish piracies on the high seas".

Other congressional powers have been granted, or confirmed, by constitutional amendments. The Thirteenth (1865), Fourteenth (1868), and Fifteenth Amendments (1870) gave Congress authority to enact legislation to enforce rights of African Americans, including voting rights, due process, and equal protection under the law.[26] Generally militia forces are controlled by state governments, not Congress.[27]

Implied powers and the commerce clause

Seated man in suit posing for picture.
Representative John A. Bingham of Ohio was a principal framer of the Fourteenth Amendment.

Congress also has implied powers, which derive from the Necessary and Proper Clause of the Constitution and permit Congress "To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof."[28] Broad interpretations of this clause and of the Commerce Clause, the enumerated power to regulate commerce, in rulings such as McCulloch v Maryland, have effectively widened the scope of Congress' legislative authority far beyond that prescribed in Section 8.[29][30]

References

  1. ^ a b Eric Patashnik, author, Julian E. Zelizer (editor) (2004). "The American Congress: The Building of Democracy". Houghton Mifflin Company. ISBN 0-618-17906-2. http://books.google.com/books?id=_MGEIIwT5pUC&printsec=frontcover&dq=Zelizer+Julian+2004+American+Congress+The+Building+of+Democracy&source=bl&ots=4V8JPn6c9n&sig=2IIfzUmUDoNHVuOwI7v1Ithh0hw&hl=en&ei=WOCMTMLdHYP6lweYqp1i&sa=X&oi=book_result&ct=result&resnum=1&ved=0CBIQ6AEwAA#v=onepage&q=Zelizer%20Julian%202004%20American%20Congress%20The%20Building%20of%20Democracy&f=false. Retrieved 2010-09-11. "This expansion of the U.S. welfare state fundamentally altered the politics of national budgeting. ... entitlement programs removed this flexibility ... The government was legally obligated to provide benefits to any person that met the eligibility requirements established by law. ... entitlements were institutionally detached from Congress's ordinary legislative routine and rhythm. ... This autonomy greatly benefited the constituents of programs like Social Security, but it weakened Congress's overall budget capacity. (pages 671-2)"
  2. ^ a b Davidson (2006), p. 18
  3. ^ a b Caroline Baum (August 15, 2010). "It Takes a Tea Party to Start a Tax Revolution: Caroline Baum". Bloomberg Businessweek. http://www.businessweek.com/news/2010-08-15/it-takes-a-tea-party-to-start-a-tax-revolution-caroline-baum.html. Retrieved 2010-09-11. "First, some history. The Constitution grants Congress 18 enumerated powers (Article I, Section 8). The power to tax is No. 1. The power to borrow is No. 2. No. 18, the “necessary and proper clause,” empowers Congress to pass all laws that are necessary and proper to do the 17 other things it’s authorized to do. It pretty much gives Congress carte blanche. The 16th amendment, ratified in 1913, gave us the income tax and gave Congress the power to run wild. “The problems stem from allowing Congress to tax incomes from whatever source,” says Randy Barnett, professor of constitutional law at Georgetown University Law Center in Washington. The 16th amendment represented “a major change in the federal government’s relationship to the people” and should be repealed."
  4. ^ editorial staff (May 30, 2008). "Congress and the Dollar". New York Sun. http://www.nysun.com/editorials/congress-and-the-dollar/78978/. Retrieved 2010-09-11. "...Article One, Section Eight of the Constitution. ... the founders of America delegated to the Congress the power to, among other things, "coin money, regulate the value thereof, and of foreign coin, and fix the standard of weights and measures.""
  5. ^ John V. Sullivan (July 24, 2007). "How Our Laws Are Made". The Library of Congress. http://thomas.loc.gov/home/lawsmade.bysec/congress.html. Retrieved 2010-09-11. "Unlike some other parliamentary bodies, both the Senate and the House of Representatives have equal legislative functions and powers with certain exceptions. For example, the Constitution provides that only the House of Representatives may originate revenue bills. By tradition, the House also originates appropriation bills. As both bodies have equal legislative powers, the designation of one as the upper House and the other as the lower House is not applicable."
  6. ^ KATE ZERNIKE (September 28, 2006). "Senate Passes Detainee Bill Sought by Bush". The New York Times. http://www.nytimes.com/2006/09/28/washington/29detaincnd.html. Retrieved 2010-09-11. "The Senate approved legislation this evening governing the interrogation and trials of terror suspects, establishing far-reaching new rules in the definition of who may be held and how they should be treated. ... The legislation sets up rules for the military commissions ..."
  7. ^ "References about Congressional war declaring power".
  8. ^ a b c d "The Law: The President's War Powers". Time Magazine. June 1, 1970. http://www.time.com/time/magazine/article/0,9171,878290,00.html. Retrieved 2009-09-28.
  9. ^ a b Michael Kinsley (March 15, 1993). "The Case for a Big Power Swap". Time Magazine. http://www.time.com/time/magazine/article/0,9171,977990,00.html. Retrieved 2009-09-28.
  10. ^ "Time Essay: Where's Congress?". Time Magazine. May 22, 1972. http://www.time.com/time/magazine/article/0,9171,879072-1,00.html. Retrieved 2009-09-28.
  11. ^ "The Law: The President's War Powers". Time Magazine. June 1, 1970. http://www.time.com/time/magazine/article/0,9171,878290,00.html. Retrieved 2010-09-11. "Did Richard Nixon "usurp" the constitutional powers of Congress when he unilaterally ordered troops into Cambodia? Swarms of lawyers went to Washington last week to join an increasingly intense debate on the issue (see THE NATION). Their most persuasive arguments raised fundamental questions that go far beyond Cambodia and the Indochina war. Many of the antiwar lawyers conceded that proving the Cambodian "attacks" unconstitutional may be difficult."
  12. ^ "THE PROCEEDINGS OF CONGRESS.; SENATE.". The New York Times. June 28, 1862. http://query.nytimes.com/gst/abstract.html?res=FA0C12FC345B1B7493CAAB178DD85F468684F9. Retrieved 2010-09-11. "Mr. SUMNER spoke in favor of the House bills, contending that they were entirely free from all constitutional objections. They were just as constitutional as the Constitution itself. They only form a part of the means for the suppression of the rebellion. The war powers of Congress are clearly derived from the Constitution, and Congress has a perfect right to exercise war powers. He protested earnestly against the absurd and tyrannical doctrine that all war powers were centred in the President, and against any attempt to foist such an unconstitutional doctrine into the Constitution, as showing the effrontery with which ignorance and conceit excused unconstitutional doctrines. He contended, at length, that confiscation and liberation were among the war powers of Congress, and he had more hope from liberation than from confiscation."
  13. ^ David S. Broder (March 18, 2007). "Congress's Oversight Offensive". Washington Post. http://www.washingtonpost.com/wp-dyn/content/article/2007/03/16/AR2007031601989.html. Retrieved 2010-09-11. "A Congress under firm Republican control was somnolent when it came to oversight of the executive branch. No Republican committee chairman wanted to turn over rocks in a Republican administration."
  14. ^ Thomas Ferraro (April 25, 2007). "House committee subpoenas Rice on Iraq". Reuters. http://www.reuters.com/article/idUSN2518728220070425. Retrieved 2010-09-11. "Democratic lawmakers on Wednesday subpoenaed Secretary of State Condoleezza Rice to testify about a central and later refuted administration justification for the 2003 U.S.-led invasion of Iraq. But the administration said it might fight the subpoena, citing a legal doctrine that can shield a president and his aides from having to answer questions from Congress. "Those matters are covered by executive privilege," said State Department spokesman Sean McCormack, moving toward a possible legal showdown with the Democratic-led Congress."
  15. ^ James Gerstenzang (July 16, 2008). "Bush claims executive privilege in Valerie Plame Wilson case". Los Angeles Times. http://latimesblogs.latimes.com/presidentbush/2008/07/cheney-plame-ag.html. Retrieved 2009-10-04.
  16. ^ Elizabeth B. Bazan and Jennifer K. Elsea, legislative attorneys (January 5, 2006). "Presidential Authority to Conduct Warrantless Electronic Surveillance to Gather Foreign Intelligence Information". Congressional Research Service. http://www.washingtonpost.com/wp-srv/nation/specials/angler/crsreview-2006.pdf. Retrieved 2009-09-28.
  17. ^ Linda P. Campbell and Glen Elsasser (October 20, 1991). "Supreme Court Slugfests A Tradition". Chicago Tribune. http://articles.chicagotribune.com/1991-10-20/news/9104040635_1_senate-judiciary-committee-first-high-court-nominee-confirmation/2. Retrieved 2010-09-11. "The Constitution says judges have lifetime appointments ``during good behavior`` but, like other federal officers, they can be removed from office for ``treason, bribery or other high crimes and misdemeanors.... It's entirely in Congress` determination what the limitations of the impeachment clause may be,`` said John Killian, senior specialist in American constitutional law for the Congressional Research Service."
  18. ^ a b c Eric Cantor (July 30, 2009). "Obama's 32 Czars". The Washington Post. http://www.washingtonpost.com/wp-dyn/content/article/2009/07/29/AR2009072902624.html. Retrieved 2009-09-28.
  19. ^ Christopher Lee (January 2, 2006). "Alito Once Made Case For Presidential Power". Washington Post. http://www.washingtonpost.com/wp-dyn/content/article/2006/01/01/AR2006010100788.html. Retrieved 2009-10-04.
  20. ^ Dan Froomkin (March 10, 2009). "Playing by the Rules". Washington Post. http://voices.washingtonpost.com/white-house-watch/bush-rollback/playing-by-the-rules.html. Retrieved 2009-10-04.
  21. ^ Dana D. Nelson (October 11, 2008). "The 'unitary executive' question". Los Angeles Times. http://www.latimes.com/news/opinion/la-oe-nelson11-2008oct11,0,224216.story. Retrieved 2009-10-04.
  22. ^ Charlie Savage (March 16, 2009). "Obama Undercuts Whistle-Blowers, Senator Says". New York Times. http://www.nytimes.com/2009/03/17/us/politics/17signing.html. Retrieved 2009-10-04.
  23. ^ Woodward, Bob (January 20, 2005). "Cheney Upholds Power of the Presidency Vice President Praises Bush as Strong, Decisive Leader Who Has Helped Restore Office". The Washington Post. http://www.washingtonpost.com/wp-dyn/content/article/2005/01/20/AR2005040314621.html. Retrieved 2009-09-28.
  24. ^ Binyamin Appelbaum and David Cho (March 24, 2009). "U.S. Seeks Expanded Power to Seize Firms Goal Is to Limit Risk to Broader Economy". The Washington Post. http://www.washingtonpost.com/wp-dyn/content/article/2009/03/23/AR2009032302830.html. Retrieved 2009-09-28.
  25. ^ a b c George F. Will -- op-ed columnist (December 21, 2008). "Making Congress Moot". The Washington Post. http://www.washingtonpost.com/wp-dyn/content/article/2008/12/19/AR2008121902929.html. Retrieved 2009-09-28.
  26. ^ Davidson (2006), p. 19
  27. ^ J. LESLIE KINCAID (January 17, 1916). "TO MAKE THE MILITIA A NATIONAL FORCE.; The Power of Congress Under the Constitution "for Organizing, Arming, and Disciplining" the State Troops.". The New York Times. http://query.nytimes.com/gst/abstract.html?res=F40C14FB355C13738DDDAE0994D9405B868DF1D3. Retrieved 2010-09-11. "From the many articles which have appeared in the public press the general idea seems to prevail that the militia is essentially a State force. To whatever extent this may be true, at the present time, it has resulted from the failure of Congress adequately to provide for the militia as a national force."
  28. ^ Stephen Herrington (February 25, 2010). "Red State Anxiety and The Constitution". Huffington Post. http://www.huffingtonpost.com/stephen-herrington/red-state-anxiety-and-the_b_476050.html. Retrieved 2010-09-11. "The Tenth states, "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." It does not say that laws derived under and consistent with the Articles of the Constitution cannot be enacted over and above the original writing or that State's retain a power to overrule federal law. The authority for doing so is based in implied powers and is among the earliest arguments in Constitutional law. Implied powers are derived from the general welfare and necessary and proper clauses."
  29. ^ "Timeline". CBS News. 2010. http://www.cbsnews.com/htdocs/supreme_court_interactive/framesource_timeline.html. Retrieved 2010-09-11. "McCulloch v. Maryland states that the Constitution grants implied powers to Congress, enabling it to carry out explicitly defined powers. The decision vastly augments Congress' power to make laws."
  30. ^ RANDY E. BARNETT (April 23, 2009). "The Case for a Federalism Amendment". Wall Street Journal. http://online.wsj.com/article/SB124044199838345461.html. Retrieved 2010-09-11. "Finally, Section 5 authorizes judges to keep Congress within its limits by examining laws restricting the rightful exercise of liberty to ensure that they are a necessary and proper means to implement an enumerated power. This section also requires that the Constitution be interpreted according to its original meaning at the time of its enactment. But by expanding the powers of Congress to include regulating all interstate activity, the Amendment greatly relieves the political pressure on courts to adopt a strained reading of Congress's enumerated powers."

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