3. Introduction
• What powers over money and commerce does the
Constitution give to Congress and what limits does it
put on these powers?
– The commerce power gives Congress the authority to
regulate interstate and foreign trade, but not trade within
a state.
– Congress has the power to tax income and imported
goods, but not exports.
– Congress can set bankruptcy laws.
– Congress can coin and print money.
4. Delegated Powers
• There are three types of
powers granted by the
Constitution.
– Article I gives 27 specific
powers to Congress.
• The Constitution also denies
many powers to Congress,
banning some and reserving
others to the states.
5. Gibbons vs. Ogden
• The Court interpreted “commerce” to include
all commercial exchanges between nations
and parts of nations, not just the buying and
selling of goods.
• This broad interpretation of commerce leaves
many questions that Congress and the courts
must continue to answer with new laws and
rulings.
6. The Commerce Clause
• The weak Congress created under the Articles of
Confederation had no power to regulate interstate
trade and little authority over foreign commerce.
• The 1780s were marked by intense
commercial rivalries among the States.
High trade barriers and spiteful State
laws created chaos and confusion
in much of the country.
• The circumstances led the Framers
to write the Commerce Clause into
the Constitution.
7. The Commerce Power
• The federal government gains great power from the
broad interpretation of the commerce power.
• However, there are limits to the commerce power.
– Congress cannot tax exports, favor the ports of one state
over another, or require vessels to pay duties when
traveling from one state to another.
– The commerce power is even used to ban discrimination in
public businesses.
8. Americans with Disabilities Act
• Based on the commerce power, Congress passed the
Americans with Disabilities Act in 1990. It prohibits against
discrimination against people with disabilities in areas such as
employment, public accommodation, public transportation,
and access to commercial buildings.
9. The Power to Tax
• Most government taxes
on people or property are
levied to raise money for
public needs.
– In what way does this
cartoon show a negative
attitude toward taxes?
10. Taxation
• A protective tariff taxes imports to protect
domestic industries from foreign competition.
• Some taxes, often in the form of licenses, are
meant to protect public health and safety.
– Name three purposes for which the government
collects taxes.
11. Limits on Taxation
• Congress can tax only for public needs, not for
the benefit of private businesses or
individuals.
• Congress cannot tax exports.
• Direct taxes, except for income taxes, must be
divided among the states in proportion to
their populations.
12. Limits on Taxation
• All indirect taxes levied by the federal
government must be uniform, or the same,
across the United States.
– An indirect tax is one in which one person pays
the tax but then passes along the cost of the tax
to others. This is done by charging them higher
prices for the good or service that is taxed.
13. Borrowing
• There are no constitutional limits on how much
money Congress can borrow or for what
purposes.
• The Treasury borrows money by issuing securities
like T-bills and bonds that it promises to repay
later with interest.
• Congress routinely spends more than it takes in,
borrowing money to make up the difference. This
deficit spending increases the public debt.
14. Bankruptcy
• Declaring bankruptcy frees a person or company
(debtor) from debts they cannot pay back to their
creditors.
– Filing Chapter 7: A debtor gives up property to pay
creditors.
– Filing Chapter 13: A debtor works out a long-term
repayment plan.
– The creditors and debtor meet to agree how much
each creditor will be repaid.
– Most bankruptcies are handled in federal courts.
15. Currency
• Congress now has the sole power to create
legal currency in the United States. This
creates a more stable money supply.
– Congress did not create legal paper money until
1862.
– This power to print money was challenged in the
courts but finally upheld by the Supreme Court in
1871 and 1884.
17. Introduction
• How do the expressed powers reflect the
Framer’s commitment to creating a strong but
limited National Government?
– The Constitution grants Congress a wide range of
powers, none of which are absolute.
– In particular, the federal government has great
authority over foreign affairs.
– Congress also has significant authority over certain
domestic matters.
18. Foreign Policy
• The President is the main authority in foreign affairs.
• Congress does have some key powers involving
foreign policy.
– Congress passes laws that deal with issues of national
security, such as immigration and antiterrorism.
– Congress can regulate foreign commerce, control federal
spending (which can include foreign aid), and has the
power to declare war.
19. War Powers
• Congress has the sole power to raise and
support an army and navy.
• Congress makes rules for governing the
nation’s military and can organize, arm,
and call out the National Guard.
• Only Congress can declare war.
• Congress can issue letters of marque and
reprisal.
20. War Powers Resolution
• Many Presidents have used their authority as
commander-in-chief to send U.S. armed forces into
combat without congressional approval.
• The War Powers Resolution of 1973 tries to limit the
President to deploying troops only in war, with
congressional approval, or in
response to an attack.
– The constitutionality of this
resolution has not been
decided.
21. Expressed Powers
• Of all the many powers the Framers could have
granted to Congress, why did they choose the
powers listed on the following slides?
• In the Federalist Papers, James Madison answered
this question by grouping the enumerated powers
into five categories.
– Only Clause 9, bestowing the power to create courts
inferior to the Supreme Court was not included.
– Which of the powers listed on the following slides do you
think is most important?
22. Expressed Powers
Security against foreign
danger:
Regulation of the intercourse
with foreign nations:
Clause 1: levy taxes, duties,
and excises
Clause 1: regulate foreign
commerce
Clause 2: borrow money Clause 10: define and punish
crimes committed on the high
seas and offenses against the law
of nations
Clause 11: declare war
Clause 12, 13, 14: raise
regulate, and provide for armies
and navies
Clause 15 and 16: organize,
arm, discipline, and call forth
the militia to execute federal
laws, suppress uprisings, and
repel invasions
23. Expressed Powers
Maintenance of harmony and proper intercourse with the
States:
Clause 3: regulate commerce among the several States and the
Indian tribes
Clause 4: establish a uniform rule of naturalization and uniform laws
of bankruptcy
Clause 5: coin money, regulate the value of domestic and foreign
coin, fix the standard of weights and measures
Clause 6: provide for the punishment of counterfeiting
Clause 7: establish post offices and and post roads
25. Copyrights & Patents
• Congress issues copyrights and patents to
protect the right of people to profit from their
creations.
– These rights encourage the development of arts
and sciences.
– Copyrights deal with a wide range of creative
works—from books to music to films—and last 70
years.
– Patents deal with inventions and processes and
last 20 years.
26. Copyright Law & You
• The Internet makes sharing information easier
than ever, but laws regulate what information
can or cannot be shared freely.
• Copyright protection may be inconvenient for
those who want music or other content for
free, but it is important to protect the rights of
writers and artists.
– What determines fair use?
27. Fair Use
• Determining an infringement of copyright
depends upon whether the test of “fair use” is
met. The factors considered are:
– The purpose and character of the use
– The nature of the copyrighted work
– The amount and substantiality of the portion
used
– The effect of the use on the value of the
copyrighted work
28. Fair Use
• In addition, the Supreme Court has held that
the courts should focus on the extent that the
new work is transformative – that is, does it
alter the work with new expression, meaning
or message?
• The more transformative the new work, the
less will be the significance of the other
factors
29. The Postal Powers
• Congress has the power to
establish a national postal
service.
– Congress can decide what can
or cannot be mailed.
– State and local governments
cannot interfere with the mail
in any way. It is a federal
crime to obstruct the mail or
use the mail to commit a
criminal act.
30. The Modern Post Office
• Benjamin Franklin became
the first Postmaster General
in 1775.
• Today the Post Office has
some 37,000 offices, nearly
700,000 employees and
handles more than 200
billion pieces of mail each
year.
31. Federal Lands
• Congress can acquire and manage federal lands and
property.
– These powers apply to the District of Columbia, to federal
territories, and to the many federal holdings such as
military installations, prisons, and parks.
– Congress can gain new property by treaty, purchase,
conquest, admitting new states, discovering unclaimed
land, or by exercising eminent domain.
32. Eminent Domain
• The federal government can seize private
property as long as the property is put to
public use and the original owners are given
fair notice and are fairly compensated for the
loss of their property.
33. Other Powers
• Congress sets the rules governing how foreign
citizens may become naturalized American citizens.
• Congress sets the national standard (in English and
metric units) for weights and measures.
• Congress has several judicial powers.
– Congress created the federal courts.
– Congress defines federal crimes and sets the punishments
for them.
35. Introduction
• How has the doctrine of implied powers
increased the powers of Congress?
– The Necessary and Proper Clause has been
interpreted in a way that gives Congress many
powers not specifically mentioned in the
Constitution.
• For example, the Commerce Clause has been
interpreted to let Congress pass laws on many
economic activities.
36. Necessary & Proper Clause
• The final clause of Article I, Section 8 of the
Constitution says 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, or in any Department or Officer thereof.”
37. Implied Powers
• Also called the Elastic Clause, this clause
allows Congress to decide how it should carry
out the many powers given to it by the
Constitution.
• In doing so, Congress has given itself implied
powers not mentioned in the Constitution. It
has argued that these implied powers are
needed to fulfill its other duties.
38. Implied Powers of Congress
• Many of the laws of Congress makes today stem
from the Necessary and Proper Clause.
• The Framers could not have made provisions for
every situation that might arise in the modern
world.
– Without its implied powers, how effectively could
Congress address new situations?
39. The expressed
power to lay and
collect taxes
Implies the power to:
• Punish tax evaders
• Regulate (license) some commodities
(such as alcohol) and outlaw the use
of others (such as narcotics)
• Require States to meet certain
conditions to qualify for federal
funding
The expressed
power to borrow
money
Implies the power to establish the
Federal Reserve Systems of banks
The expressed
power to create
naturalization law
Implies the power to regulate and limit
immigration
40.
41. Strict Construction
• Anti-Federalists supported strict construction,
arguing that Congress should only be able to
use implied powers that are absolutely
necessary to carry out its expressed powers.
• Strict constructionists such as Thomas
Jefferson wanted to protect the independence
and power of state governments from a
national government with too many implied
powers.
42. Liberal Construction
• Liberal constructionists took the Federalist view
that the Constitution should be interpreted
broadly, strengthening the national government
by giving it a wide range of implied powers.
• The Supreme Court upheld the idea of implied
powers in McCulloch v. Maryland in 1818.
• Since then, the liberal constructionist view has
dominated and federal power has grown.
43. Expanding Powers
• Major crises have placed
more responsibility on
the national government.
• Citizens have demanded
more services from the
government.
– Congress established the
United States Border
Patrol to guard the
nation’s borders.
44. Expanding Powers
• Congress, the President, and the Supreme Court
have all supported increased powers for the
national government.
• Implied powers allow the federal government to
adapt to changes in society and technology that
the Framers could not have anticipated.
• For example, while Education is an area expressly
delegated to the States, Congress has used its
implied powers to make legislation affecting
schools.
45. Congress and Education
• Title III of the Civil Rights Act authorized the
attorney general to issue civil suits against
discriminatory school in the United States.
• Title IX of the Education Amendments to the
Civil Rights Act forbids gender discrimination in
federally funded education programs.
• The Individuals with Disabilities Education Act is
designed to prevent discrimination and enable
individuals with disabilities to participate fully in
all aspects of education.
46. Implied Powers in Practice
• Implied powers have most often been
connected to the commerce power, the power
to tax and spend, and the war powers.
• Congress can levy a wide range of taxes and
assign federal money to be spent on
improving the general welfare through a
variety of services like Social Security or
Medicare.
47. Limits on Implied Powers
• Congress cannot simply grant itself a power
because such a power would benefit the
public or the United States.
• An implied power must be based in some way
on the expressed powers of the Constitution.
• Implied powers cannot violate the
Constitution.
48. The Commerce Power
• The Commerce Clause is now defined to include
the production, buying, and selling of goods as
well as the transportation of people and goods.
– Using implied powers derived from the Commerce
Clause, Congress can regulate manufacturing, wages,
food and drugs, and more.
– Congress can also build interstate highways, set
consumer protection laws, and protect the
environment.
49. War Powers
• Congress can do
whatever is needed to
carry out its war power,
except violate another
part of the Constitution.
• Congress created the
draft based on its
implied war powers.
– To which power does this
cartoon refer?
51. Introduction
• What nonlegislative powers does the Constitution
delegate to Congress?
– Congress can propose constitutional amendments.
– Congress has some rarely used electoral duties when
elections must be decided or a new vice president
appointed.
– Congress can impeach certain federal officials.
– The Senate must approve major presidential appointments
and ratify official treaties.
52. Amendments
• Congress can propose constitutional
amendments by a two-thirds vote of each
house and has done so 33 times.
• Congress can also call a national convention of
state delegates to propose an amendment,
but has never done so.
53. Elections
• If no candidate receives a majority of electoral
votes for President or Vice President, Congress
chooses the winner.
– The House chooses the President, voting on a
state-by-state basis for one of the top three
contenders.
– The Senate votes for the Vice President, with
individual Senators casting votes.
54. Electoral Duties
• The House chose the President in 1801 and
1825. The Senate chose the Vice President in
1837.
• When the President appoints a new vice
president, a majority of both houses in
Congress must approve the choice.
55. The Impeachment Process
• The Constitution allows Congress to remove the
President, Vice President, and all civil officers for
treason, bribery, or high crimes and misdemeanors.
– The House impeaches, or brings charges against, an
official. This requires a majority vote.
– The Senate then acts as a court and tries the official.
Convicting an official takes a two-thirds majority.
56. Impeachments
• To date, 17 federal officials have been impeached
and seven convicted.
– All those convicted were federal judges.
• President Andrew Johnson was impeached in 1868
after harsh disagreements with the Republican
Congress about how to carry out Reconstruction
after the Civil War. The Senate found him not guilty
by one vote.
• Why was President Johnson impeached?
57. Watergate
• Richard Nixon resigned the
presidency in 1974 under
threat of impeachment due to
the Watergate Scandal.
– Investigation into the
Watergate burglary
uncovered many illegal acts
by Nixon’s administration,
including bribery, perjury,
and fraud.
– Gerald Ford (left) succeeded
him as president.
58. Clinton’s Impeachment
• President Clinton was impeached by the House in
1998 but found not guilty by the Senate in 1999.
– He was charged with perjury and obstruction of
justice for withholding information about an
inappropriate relationship with a White House intern.
– Opponents of his impeachment argued that these acts
did not qualify as “high crimes and misdemeanors.”
60. Executive Powers
• All major presidential appointments must be
confirmed by a majority vote of the Senate.
– The Senate rarely rejects a Cabinet appointment,
though candidates may be withdrawn.
– The custom of senatorial courtesy means the Senate
will only approve appointees supported by the
Senators from the appointee’s state who belong to the
President’s party.
61. Congressional Influence
• The Senate approves high level appointments
by the President.
• The President consults with Congress during
the negotiation of treaties.
• Presidents may need to make changes in a
treaty at the behest of Congress.
• Even after a treaty has been approved,
Congress can repeal it.
62. Oversight
• Congress has the implied
power to investigate any
matter that falls within the
scope of its lawmaking
authority.
– This oversight power is
exercised most often by
congressional committees.
63. Congressional Hearings
• To gather information needed for lawmaking
• To oversee executive branch agencies
• To focus public attention on an issue
• To expose questionable activities of group or individual
• To promote the interests of members of Congress
