Development of Development of Congressional Congressional

PowerPower

Constitutional PowersConstitutional PowersProvisions

–Expressed Powers (Article 1 Section 8)

–Necessary and Proper Clause (18th clause of expressed powers)

–Implied powers (Granted by the courts via the necessary and proper clause)

Conflicts in Interpretation–McCulloch v Maryland

First USSC case that ruled on the scope of the extent of congressional power

Court rules that if the necessary and proper clause does not enlarge congressional powers, then it cannot also restrain actions in fulfilling the expressed powers.

Denied Powers–Taxing of exports–Suspension of a writ of habeas corpus- court order releasing a person to determine the validity of their detention.

–Cannot pass laws establishing an individuals guilt and punishment for them without a trial

–Cannot pass ex post facto laws- laws that make crimes of acts that were legal when committed.

Legislative Powers–Taxing and Spending Power

Revenue Bills- proposed laws for making money–These bills must start in the House

Appropriations Bills- proposed laws authorizing the spending of money

–Not specifically mentioned in the Constitution

–Arose out of necessityProvides federal control via limits, regulations, and taxes

Allows for federal regulation of the economy through raising or lowering taxes.

–Other Money PowersCongress is allowed to borrow money to pay for the cost of government.

This is usually accomplished by way of selling bonds or government notes.

–Commerce PowerThe Constitution allows for the regulation of foreign and interstate commerce.

Courts have expanded the definition far beyond the buying and selling of goods and services.

Congress had used this power to enact minimum wage laws, environmental regulations, and even civil rights.

Heart of Atlanta Hotel v. United States

–An Atlanta hotel owner challenged the Civil Rights Act of 1964- outlawed discrimination in places of public accommodation (hotels, restaurants, etc.) and in jobs- saying his business

was not interstate and therefore not subject to federal regulation.

–USSC ruled that places of public accommodation served interstate travelers and were therefore subject to federal regulation.

Foreign Policy Powers–Can regulate foreign commerce–Also includes the raising of the armed services and the power to declare war.

–National security duties are shared with the President and usually follow his leadership.

–War Powers Act 1973To reassert control following Korea and Vietnam Congress passed legislation limiting Presidential power in use of the military.

President has to notify Congress within 48 hours if committing military force for more than 60 days.

National Growth–Congress has administrative powers overImmigrationNaturalizationTerritoriesFederal property

Other Legislative Powers–Congress has the power to grant:

Copyrights

–Exclusive right to publish and sell an artistic work for a specific period of time (Lifetime of creator plus 50 years).

Patents–Exclusive right of an inventor to manufacture, use, and sell their invention for a specific period of time (17 years plus renewal)

–Congress has the power to establish a Post Office and Federal Courts

Nonlegislative Powers–The Power to Choose a President

Non-Electoral College Majority–If neither candidate receives a majority of the Electoral College votes than the House selects a President, and the Senate selects the VP.

–This has happened twice

•1800- Jefferson was chosen over Aaron Burr

•1824- John Quincy Adams chosen over Andrew Jackson

Amendments–20th and 25th allow for problems regarding the death of an elected candidate and Presidential incapacity or resignation.

–25th allows a President to select a VP with Congressional confirmation if the office is vacated.

–This was done twice in the 1970’s.

–The Power to Remove a PresidentImpeachment

–The House of Representatives has the power over formal accusation of misconduct while in office.

–If a House majority votes for impeachment, the Senate then tries the accused and must get a 2/3 vote of those present for a conviction and removal.

–If a President is being impeached then Chief Justice of the United States presides over the proceedings.

Presidents Impeached

–1868- Andrew Johnson was acquitted by one vote.

–1999- Bill Clinton (charged with perjury in grand jury testimony and obstruction of justice) was acquitted by a failure to get a 2/3 majority.

Confirmation Power–Senate had confirmation power over military promotions and presidential appointments- including the USSC.

Ratification Powers–Senate has ratification powers over all treaties with foreign nations.

–Presidents have been bypassing this formality with the use of Executive Agreements that don’t require Senate approval.

Amendment Power–To date all amendments have been started in the Congress.

Investigations and OversightInvestigations and OversightThe Power to Investigate

–The Constitution neither grants nor denies the power of Congress to investigate certain matters.

The Process–Standing or Select Committees may organize so as to collect evidence, gather testimony, and hold hearings.

–Often politically or publicity motivated.

–Results often include new legislation, reform, or even removal of government officials.

–Quite often can publicly damaging.Joseph McCarthyMark McGwire

Congressional Powers and Witnesses–The Subpoena

Legal order for a person to appear or produce documents that Congress has like a court of law.

Congress can legally force you to appear before them.

–PerjuryCongressional testimony is given under oath- like a court of law- anyone who lies before Congress can be prosecuted for this.

–ContemptThose who refuse to cooperate with Congress can be found in contempt and arrested and jailed if found to be obstructing Congress’s efforts.

–Constitutional RightsIn Watkins v. United States (1957) the USSC ruled Congress must respect the constitutional rights of their witnesses.

–ImmunityTo compel people to testify Congress has the power to grant freedom of prosecution from illegal acts linked to their testimony.

If granted immunity the 5th amendment goes out the window and failure to testify can led to contempt charges

Legislative Oversight–A Huge Bureaucracy

Congress has created a huge system of agencies whose job it is to oversee the executive branch in carrying out congressionally passed laws.

–The PracticeSeen as a part of checks and balances

Does not allow the executive branch to individually interpreter congressional legislation.

–Why the Lack of Consistency in Congressional Oversight?Not enough staff, time, or money to oversee everything.

There are not many votes to be gained by lawmakers in oversight activities.

Vagueness of some laws makes for difficult enforcement of what the law actually means.

Familiarity with an agency breeds a sometimes protective nature among those who are to critically examine them.

–Limits on Executive Activities by CongressReports

–Executive agencies must submit reports to Congress on a regular basis for updates on activities.

Support Agencies

–Congress can have a support agency, such as the GAO, study an agency’s activities.

Appropriation

–Those who pay the bills and provide the money can shape an agency’s activities.

Independent Council–Congress may require the Attorney General go through the process to appoint an independent counsel to investigate charges of criminal wrongdoing by top officials if evidence if found to warrant such an investigation.