GOVT 2302 The United States Congress – Constitutional Design.

GOVT 2302

The United States Congress – Constitutional Design

The last set of slides traced the development of legislature (at

least those in the Anglo-American tradition) from the Magna Carta to

the Congress created in the Articles of Confederation.

The point was to reveal the history underlying the constitutional design of the legislatures on

the national and state levels.

Legislatures gained the right to meet, and to limit the power of the monarch (a good

surrogate for the executive branch). They were then able to control the purse and limit military

actions. Most importantly they grew into entities strong enough to limit the arbitrary

actions of the monarchy.

Without strong legislative institution, the executive would be

unrestrained.

Hopefully this gives us context to understand why these institutions

are designed as they are.

This week we read through the articles of the U.S. and Texas

Constitutions which create the U.S. Congress and the Texas

Legislature.

This set of slides focuses on the US Congress, but lets begin with some

comparisons.

For a quick overview of the design of each institution in their

respective constitutions, click on the two following links:

The U.S. Congress:

Article One of the U.S. Constitution.

(wikipedia)

Ten Sections2,286 words

(This sections contains almost half of the total words in the Constitution)

The Texas Legislature:

Article Three of the Texas Constitution

You might want to also read the legislature’s entry in the Handbook of Texas Online.

67 Sections29,557 words

The key difference is that the national legislature is designed to

be a more powerful legislature than Texas’.

This explains the discrepancy in length

The length of Article 3 of the Texas Constitution establishes clear

limitations on the power of the legislature. The brevity of the U.S. Constitution makes these powers

subject to debate.

This distinction reminds us of the different ways that each document

treats governmental power. The U.S. Constitution has vague

language that has been used to expand it, while the Texas

Constitution has lengthy, precise language that restricts it.

The key difference is that the national legislature is designed to

be a more powerful legislature than Texas’.

This explains the discrepancy in length

The length of Article 3 of the Texas Constitution establishes clear

limitations on the power of the legislature. The brevity of the U.S. Constitution makes these powers

subject to debate.

Article One of the U.S. Constitution creates a professional legislature

with fulltime legislators that do not hold other positions and that

meets almost continually during each two year session.

Members of Congress receive a competitive salary (currently

$174,000) and receive enough funding to have a sizeable staff in

their DC offices and several districts offices as well.

Article Three of the Texas Constitution creates an amateur

legislature composed of members who serve only 140 days every two

years and are expected to have another profession.

Members receive a $600 per month salary, which was

established by Texas voters in 1975. Members also receive a per diem allowance of $128 when the

legislature is in session.

Texas legislators are provided little funding for staff. This limits the ability of legislators to provide

constituency service.

This distinction reminds us of the different ways that each document

treats governmental power. The U.S. Constitution has vague

language that has been used to expand it, while the Texas

Constitution has lengthy, precise language that restricts it.

The Constitutional Convention

As we should already know, the purpose of the Constitutional Convention was to create a

stronger national government, including a Congress with the

ability to pass meaningful legislation without being limited by

the general population.

The Articles of Confederation created only a legislature, and that institution was severely restricted.

Recall the relevant passages in the document:

The Articles of Confederation

Article V. For the most convenient management of the general interests of the United States, delegates shall

be annually appointed in such manner as the legislatures of each State shall direct, to meet in

Congress on the first Monday in November, in every year, with a power reserved to each State to recall its delegates, or any of them, at any time within the year, and to send others in their stead for the remainder of

the year.

Notice two key features of the legislature:

Yearly appointments by the states.Subject to recall at any time.

This design restricted the powers of the legislature. It could not focus on national objectives –

primarily commercial and military - which was fine with the states, but

not the Federalists.

A national government detached from the states would be

necessary to accomplish those objectives.

The central dispute involved the relationship between the nation

and the states. Would the national government rest its authority on

the people or on the states? What would be the dominant entity?

A key Federalist goal was to base the national government on the

people and bypass the states. The House of Representatives would be that basis and explains why they are directly elected by the

people.

In 2301 we mentioned that three separate plans for constitutions

were submitted to the Constitutional Convention.

Each had a unique legislative design.

The Virginia PlanThe New Jersey Plan

Hamilton’s Plan

The Virginia Plan

A lower chamber elected by the people of the states. An upper chamber elected by the lower

chamber. The size of both determined by state population.

The upper chamber selects chief executive.

Note that all institutions in this design rested on the people. The

states had no independent role to play in the operations of the

government.

The Hamilton Plan was even more extreme. It proposed a bicameral

legislature where the lower house, the Assembly, was elected by the people

for three year terms. The upper house, the Senate, elected by electors chosen by the people, and with a life-term of

service.

Not that Senators served for life – which removed them from any external controls.

The New Jersey Plan was written in response to the Virginia Plan and sought to ensure that the states would have a connection to the

national government by retaining the design of the Congress

established in the Articles of Confederation.

So here’s the dilemma: The Virginia Plan, in the opinion of

some delegates, gave too much power to the national government

and the New Jersey Plan, in the opinion of other delegates, gave it

too little.

The Great Compromise was negotiated in order to gain the

support of each side.

The design of the House of Representatives reflects the desire of the federalists to connect the national government directly to the people. It

is the institution that allows the national government to claim sovereignty due to that direct

connection. It would allow the political influence of population centers to

increase.

The design of the Senate reflects the desire of those concerned

about the increased power of the national government to ensure

that the states were able to represent their interests. The

Senate was designed to be the state’s branch.

On to the Constitutional Design of the U.S. Congress in Article One.

A quick run through the entire article would be helpful.

Note: Article One contains ten sections and about half of the

words in the entire Constitution.

Section One: The Vesting Clause and Bicameralism

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.

For information online:

Find Law: Article One, Section OneWikipedia: Article One, Section

One

Note that articles 1, 2, and 3 each begin with a vesting clause which

grants a governmental power to one the three institutions. This one clarifies

the role of Congress. It makes clear that neither the executive nor judicial braches can exercise legislative power.

This is necessary in order to fully separate powers. But as we will

see, the executive through rulemaking power, and the courts,

through judicial review, have powers that seem legislative in

character.

There was no vesting clause in the Articles of Confederation.

Therefore no clear function granted to Congress.

It was established: “For the most convenient management of the general interests of the United States.” What does that mean?

Notice the term “herein granted.” This is taken to restrict the

legislative powers to those that are spelled out in Section 8 below.

But, controversially, other powers have been argued to fall under the

implied powers. More on this below.

Section Two: The House of Representatives

The House of Representatives shall be composed of Members chosen everysecond Year by the People of theseveral States,


Find Law: Article One, Section TwoWikipedia: Article One, Section

Two

This sets in place the two year term. It also established that the institution is popularly elected.

It is the closest to the people. Is that why it is the first institution

designed in the document?

The fact that elections shall be held every two years means that

neither the legislative or executive branch use the scheduling of

elections to manipulate outcomes.

It is more difficult – though not impossible - to manipulate a regularly scheduled election.

Remember that the House of Commons, in the past, met very

irregularly and only at the discretion of the monarch, which

made it subject to monarchic control. This point was made in the

previous section.

The House of Representatives is designed to be responsive quickly

to shifts in public opinion.

But is it?

Two points about contemporary House Elections

1 - Re-election rates commonly exceed 90%

2 - Average election cost of elections exceed one million

dollars.

Note that even in the 2010 “wave election” 86% of incumbents were

reelected. No Houston area incumbents were defeated, most

were comfortably re-elected.

This is called the incumbency advantage.

There is debate over whether the incumbent advantage is a problem and whether members of Congress should be term limited. Recall that members of the Congress under the Articles of Confederation could only serve 3 out or any 6

years.

Efforts to impose limits are seldom successful. It is argued that it can be advantageous for a

district to be represented by someone who has held their positions for many terms.

Seniority, as we will see in the next section, has its advantages. Knowledge of the process is

power, and can allow someone to be an effective representative.

Example: Sam Rayburn represented the 4th District of

Texas from 1913 – 1961.

In addition, if members are term limited, power may shift to interest

groups and staffers, people who know the legislative process.

These people are not accountable to voters. Power is a constant in

politics. The only question is where it is located.

It could be that the two year term, ironically, helps solidify incumbent electoral success since they build

up a high degree of name recognition by running for election

so often.

Plus, the increased expense of elections seem to drive many out of

the process.

Incumbents can build up campaign war chests (lots of cash to spend on

elections) that can frighten off potential opponents. Click here for a study (and another) that proves this

works.

The average winner in a 2008 House race spent almost $1.5

million. The average winner in a Senate race that year spent approximately $7.5 million.

The top spender in 2010 on a House Race: Minnesota 6th

Michelle Bachmann (R): $11,478,276

The top spender in 2010 on a Senate Race: Connecticut

Linda McMahon (R): $49,942,727

(self financed)(she lost)

Once in office, members of Congress can build relationships with interest groups that can be benefitted by their votes. These groups will return the favor by

helping build up the war chests.

It is in their best interests to ensure that there is continuity in

office.

It is common for corruption investigations to focus on whether members of Congress do favors for those who contribute to them. But

outright corruption is difficult to prove.

Click here for an interactive page from Open Secrets with data from recent

elections.

Consequences of increased costs of elections:

- More time spent fundraising. Less time legislating.

- Fundraising constituency may become more important than

electoral constituency.

This has led to the argument that the increased cost of elections has reduced the ability of legislators to actually represent people in their

districts.

It may be increasingly important to represent the needs of funders.

Section Two: The House of Representatives

. . . and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.

This establishes that the states are given the power to determine who

can vote in House elections.

Whoever can vote for members of the state House can vote for members of the U.S. House.

As we know from 2301, in a series of amendments, states have been limited in their ability to restrict the right to vote due to various

criteria.

15th – race, color, previous condition of certitude

19th – gender24th – non payment of poll taxes

26th – being 18, 19 or 20 years old

More amendments have been added to the national constitution on this subject than on any other.

Also as we noted in 2301, nowhere in the Constitution does it state

that the right to vote is an absolute right. This allows states to pass

laws impacting who gets to vote beyond those limits placed in the

Constitution.

Restrictions still exist for mental capacity and felony convictions.

An ongoing controversy regards voter ID legislation and other

efforts to tighten up access to the polls.

Section Two: The House of Representatives, continued

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 age and residency requirements of the House are the

lowest of any of the political branches.

The residency requirement simply states that representatives have to be residents of the “state in which

he shall be chosen.”

There is no mention of districts.

Many states early on, and even since, have elected house

members to represent the state at large, meaning that they

represented the entire state.

For links, click here.For Texas’ at-large districts click here.

But states soon began to divide themselves into districts in order to allow for members of the House to represent a smaller, more compact

populations; local areas.

States then adopted requirements that people live in the districts they represent. Here is a map of the 110

Congress.

The redistricting process was impacted greatly by the court case Baker v. Carr.

It requires House districts to be redrawn after reapportionment in order to ensure they have equal

numbers within each state. This is to ensure the principle of “one person – one vote” is maintained despite the fact that people tend to move about

within the state and nation.

Legislative Redistricting

Here recent maps of national, state and local U.S. House districts.

Click here for the districts created in 2011 by the 82nd meeting of the Texas Legislature, and a summary of the redistricting process in the

state.

Texas is commonly accused of engaging in racial gerrymandering.

“gerrymandering is a practice that attempts to establish a political

advantage for a particular party or group by manipulating geographic

boundaries to create partisan, incumbent-protected districts.” –

wikipedia.

Here is the cartoon that coined the term “gerrymander.”

Here is a key controversy concerning gerrymandering:

Does it turn democratic representation on its head? Does it

allow representatives to select their constituents rather than vice

versa?

The least gerrymandered state is Iowa, it uses a non-partisan

commission (the Iowa Plan) to draw districts. Compar them to

Texas’.

Question: Has party competition corrupted the design of the House

as originally intended?

Note that members have to live in the states they represent.

Not all democracies have residency requirements.

Generally in parliamentary systems representatives can live anywhere

in the country.

Section Two: The House of Representatives , continued

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 section includes the 3/5ths compromise which was necessary

to ensure that southern states would join the union.

This was repealed by the 14th Amendment.

Section Two: The House of Representatives , continued

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.

This creates the authorization for a census and the existence of a

Census Bureau.

A history of apportionment from the U.S. Census.

Each state is guaranteed one member of the House of

Representatives.

States with larger populations have a larger house delegation.

How do they figure it out?

The Method of Equal Proportions.

Here’s a video that describes the process.

As a result of the most recent census, the following states have

only one representative

AlaskaDelawareMontana

North DakotaSouth Dakota

VermontWyoming

The states with the largest delegations – as of 2010 - are

California - 53Texas - 36

New York - 27 Florida - 27Illinois - 19

For a history of apportionment click here. Here is the House’s web

page on apportionment.

Since representatives are apportioned to states, the number

of people per district can vary.

Average per district nationally – 710,767Smallest – Rhode Island - 527,624

Largest – Montana - 994,416

Controversies exist over whether the census bureau ought to ask anything

beyond the number of people who live in a household.

Click here for the form.

Census data are also used to determine how federal funds are

distributed.

Conservatives early on feared that greater information about the

nature of the population would lead to proposals for programs and

policies to impact those populations.


The Number of Representatives shall not exceed onefor 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 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.

Over the course of history the House of Representatives has grown from a low of 65, to its current 435 (it briefly hit 437).

There are questions whether the number should be increased

further.

Click here for an overview of the increase.

In case you’re curious, the 30,000 limit means that the House cannot grow to contain more than 10,234

members.

Several Federalist Papers were devoted to the question about

how large a legislative assembly ought to be.

If it was too large, it would be chaotic.

If it was too small it could be easily bribed, or turn into a small cabal.


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

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

The governors of each state have the power to set elections to replace members when they

vacate the office for any reason.

Notice that the Speaker is the only office mentioned in the document.

The Speaker is the presiding officer of the chamber, but nothing is

stated about what the powers of the office.

It was assumed that the office would be neutral, like the Speaker

of the House of Commons, but with the development of political

parties early Speakers began to use the office for political purposes.

The Speaker is invariably the leader of the majority party in the House and plays a role is setting

and implementing the party’s agenda.

As the institution has evolved, “other offices” refers primarily to

committee and party offices.

We will investigate these positions further in the next section, but

here’s a preview.

Committees

Committee ChairsRanking Members

Sub Committee Chairs

Click here for list of committees from House.gov.

Political Parties

Floor LeadersWhips

Caucus LeadersPolicy and Steering Chairs

Re-election Chairs

Click here for list from house.gov

Some positions have been created in Congress to run the place.

Chief Administrative Officer.Clerk of the House.

Parliamentarian of the House.Chaplain.

Here’s a list from Wikipedia.

The House also has the power of impeachment, which refers to the

process by which they can determine whether a trial ought to be held in the Senate to remove an

executive or judicial official from power.

It is similar to an indictment. Removal from office only occurs upon conviction in the Senate.

This is a legislative check on both executive and judicial power.

Section Three: The Senate

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.


Find Law: Article One, Section Three

Three Wikipedia: Article One, Section Three

Senate elections happen less frequently than those in the

House.

As a consequence they are more competitive and more costly.

All aspects of the design of the Senate are intended to remove it from the direct influence of the

electorate.

Each state is represented equally.

Senators have six year terms – the longest of any of the political

branches.

State Legislatures originally selected Senators, which meant that they didn’t represent the people of the states, but the

state’s themselves.

This was changed in the 17th Amendment to a direct election by

the people.

The Progressive Movement pushed for the change arguing that

corporate interests in the states controlled the selection of

Senators.

Section Three: The Senate, continued

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

Senators serve overlapping terms. Note in the following list that each

member is assigned to a class.

A comfortable majority is immune from the preferences of the public

every two years.


. . . 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.

As opposed to the House, state governors have the power to replace Senators temporarily.


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.

The age and residency requirements of Senators are

higher than the those of House representatives.


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

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

The Vice President is the presiding officer of the Senate, but has no

real power.

As with the House, the Senate can create additional offices.

These are similar to those established in the House.

Congress has also established a handful of agencies to assist

members of Congress by giving them information about legislation

and other policy issues.

Congressional Budget Office.Congressional Research Service.

Government Accountability Office.


The Senate shall have the sole Power to try allImpeachments. 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.

It is the Senate’s responsibility to remove an executive or judicial

official.

The two thirds requirement is meant to ensure that these are not driven by political considerations.

Noted Impeachments

Samuel ChaseAndrew Johnson

Bill Clinton

All failed

Two recent impeachments of Federal judges.

Samuel KentThomas Porteous


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.

An impeachment conviction only removes one from office. It is not a

criminal proceeding. But any impeached official can then be tried in a criminal or civil court.

Section Four: Congressional Elections and Yearly Meetings

The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed ineach 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 Senators.

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.


Find Law: Article One, Section Four Wikipedia: Article One, Section

Four

States have control over certain aspects of elections. The date of national elections

was set in law as the Tuesday after the first Monday in November in 1845. Prior to this “Congress allowed states to hold their polls

any time in the 34 days before the first Wednesday in December, which was the

day the Electoral College met.”

Why must it be a Tuesday?

In Texas, congressional elections are governed by the Elections

Division of the Secretary of State’s Office.

For a fun read, follow this link to the Texas Election Code.

By fixing the date of elections in law, the ability to manipulate elections by opportunistically

timing them is minimized.

The requirement that Congress meet at least once a year prevents

the executive from limiting the power of the legislature.

Remember the eleven year’s tyranny?

Section Five: Qualification, Rules of Procedure, and Expulsion of

Members• 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.


Find Law: Article One, Section Five Wikipedia: Article One, Section

Five

Each chamber can rule on controversies associated with the

elections of its members.

Recent example: The election of Roland Burris.

As it states, a majority of the representative must be present in

order for business to be conducted.

If needed, a compulsory process can be used to force members on

the floor for a process to continue.

The Sergeant at Arms is responsible for doing this.


Members, continued • 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.

Thomas Jefferson was responsible for writing out procedures for the

House and Senate.

Jefferson’s Manual

Many of the current procedures in the House and Senate were established in the Legislative Reorganization Act of 1970.

- Wikipedia.- Rules Committee.

Standing Rules of the House. Standing Rules of the Senate.

It is very rare, but on occasion members of Congress have been

expelled.

Since the First Congress, a record of everything said in the institution

has been kept. Much of if is now available online.

A Century of LawmakingCongressional Serial Set

Congressional Record (Thomas)

If requested by one fifth of the members, votes are recorded and

made public.

Recent roll call votes can be found online here.


Members, continued • 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.

If one chamber adjourned without the consent of the other, then one

chamber can effectively negate what the other is doing.

Both chambers have to be in session in order for legislation to

pass.

Section Six: Compensation, Privilege from Arrest, Free Speech on the Floor, and Conflicts of

Interest

• 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.


Find Law: Article One, Section Six Wikipedia: Article One, Section Six

Recall from above: Members of Congress receive a competitive salary (currently $174,000) and

receive enough funding to have a sizeable staff in their DC offices

and several districts offices as well.

The remainder of this section reflects ancient concerns that the executive would (and has) use its powers to coerce the legislature

to act as it wants.

One noteworthy event in British history was when, on January 4,

1642, Charles I attempts to arrest five members of the House of Commons who were planning actions against the monarchy.

They left before the king arrived: "I see the birds have flown."

It is always problematic when executive officials intrude into the

legislature.

It is reminiscent of Caesar’s entry into the Roman Senate.

Freedom of speech on the floor on Congress is an ancient privilege dating back to the British Bill of

Rights. We covered this in the last section.

Members of Congress cannot be sued for what they say on the floor of Congress. The judiciary cannot

be used as an instrument to intimidate the legislature.

They are shielded from intimidation for outside groups.

Section Six: Compensation, Privilege from Arrest, Free Speech on the Floor, and Conflicts of

Interest, continued

• 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 encreased 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.

Legislative officials cannot be bribed, or otherwise persuaded, by

executive officials with a paid position.

Consider this among the checks and balances.

Section Seven: Revenue Bills and the Bill Making Process.

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.


Find Law: Article One, Section Seven

Wikipedia: Article One, Section Seven

“Bills for raising revenue” are tax bills, and they must be first

introduced in the branch closest to the electorate.

The bills are subject to modification by the Senate.

Section Seven: Revenue Bills and the Bill Making Process, continued

Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a law, be presented tothe 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. . .

Section Seven: Revenue Bills and the Bill Making Process, continued

. . . 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 is the extent of the bill making process as far as the Constitution is

concerned. It says nothing about how bills go through each chamber.

We will cover this in the next section since it provides a good opportunity to

introduce political parties and committees.

A full description of the process.

A graphical description.

From the US House: The Legislative Process.

From the US Senate: Senate Legislative Process.

There are several types of bills:

BillsJoint Resolutions

Concurrent ResolutionsSimple Resolutions

This section includes two checks. One, the veto, is the executive’s

check on the legislature. The other, the override of a veto, is the

legislature’s check on the executive.

It also includes a third check. Since it is implied that a bill has to pass both the House and the Senate in the same language in order to be presented to the president, each gets to check the other branch.

Here is a list of all presidential vetoes.

Note that a bill becomes law even if the president does not sign it.

Once ten days pass with Congress in session, the bill becomes a law. Relatively unimportant legislation often is unsigned. Presidents tend

to only sign laws if the feel the need to highlight it. Read: the

pocket veto.

One area of conflict between the legislature and the executive concerns signing statements.

These provide opportunities for presidents to enter objections to legislation, sometimes in secret.

Now on to the section covering the delegated and implied powers of

the national government.

Recall that we also covered this section in 2301 when we discussed

federalism.

Section Eight: The Enumerated Powers of Congress

• The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence 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;

Section Eight: The Enumerated Powers of Congress, continued

• To establish an 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 establish Post 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 Offences 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.


Find Law: Article One, Section Eight Wikipedia: Article One, Section

Eight

These are the delegated powers of the national government. These

contain the powers that Congress is specifically authorized to pass

laws about.

Note they concern, primarily, commerce and the military.

Three specific parts of section 8 have become known as the elastic clauses due to the flexibility in how

they have been interpreted.

General WelfareCommerce

Necessary and Proper

Section Nine: The Limits of Congressional Power

• 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.

Section Nine: The Limits of Congressional Power, continued

• 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 of 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 the 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.


Find Law: Article One, Section Nine Wikipedia: Article One, Section

Nine

This section contains the explicit limits on the powers of Congress.

The First Amendment adds to this list by stating six additional things

Congress cannot write laws about.

“Congress shall make no law respecting an establishment of religion, or prohibiting the free

exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to

assemble, and to petition the Government for a redress of

grievances.”

The Tenth Amendment also defines a limit on national power,

but a very undefined limit.

“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.”

Theoretically this means that the powers of the national

government are limited, but the powers of the states are expansive.

The language in the Texas Constitutions makes its powers

restrictive.

Increasingly loose readings of the elastic clauses have lead to greater conflict between the national and

state governments.

Section Ten: The Limits of State Power

• 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.

Section Ten: The Limits of State Power, continued

• 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 its 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 of the Congress.

Section Ten: The Limits of State Power, continued

• 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.


Find Law: Article One, Section TenWikipedia: Article One, Section Ten

This final section establishes the limits on state power.

Note that these powers are primarily national powers.

One purpose of this clause it to make clear that the states are not

in fact nations, and cannot do those things that nations do.

This was not clear in the Declaration of Independence or the Articles of Confederation.

Study Guide

- What were the basic features of the legislatures created in the Virginia, New Jersey and Hamilton Plans?- What powers are specifically granted to and prohibited from Congress in Article One?- What process is used to apportion representative to the several states?- What leadership positions are established in Article One?- Know the manner in which people are selected to the House and Senate of both Texas and the US. - What language in Article One protects the legislature from the other branches?

- What does Article One say about the bill-making process?- What types of powers are granted to Congress?- What language in Article One has led to expansions of national power?- What are the principle differences between Congress and the Texas Legislature?- What are the principle differences between the House and the Senate?

GOVT 2302 The United States Congress – Constitutional Design.

Documents

Transcript of GOVT 2302 The United States Congress – Constitutional Design.