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Congressional Power, Part 2
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Congressional Power, Part 2


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Lecture given to students at Osnabrück Universität.

Lecture given to students at Osnabrück Universität.

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  • 1. U.S. Constitutional Law Legislative Powers: The Necessary & Proper Clause, How a Bill Becomes a LawU.S. Constitutional Law Page 1March 16, 2010 Legislative Powers
  • 2. Necessary & Proper Clause [The Congress shall have Power] To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers [those listed in the Constitution], and all other Powers vested by this Constitution in the Government of the United States, or in any Department thereof. - Article I, Section 8, cl 18U.S. Constitutional Law Page 2March 16, 2010 Legislative Powers
  • 3. Limited Federal Power Congress may act only if here is express or implied authority to act in the Constitution. “All legislative powers herein granted shall be vested in a Congress . . . .” Article I States may act unless the Constitution prohibits the action. “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States . . . .” Tenth AmendmentU.S. Constitutional Law Page 3March 16, 2010 Legislative Powers
  • 4. Factual Background of McCulloch The Bank of the United States in Philadelphia. Alexander Hamilton argued that the Constitutions implied powers authorized its creation.U.S. Constitutional Law Page 4March 16, 2010 Legislative Powers
  • 5. Question Presented 1) Does Congress have the authority to create the Bank? 2) Is the state tax on the bank constitutional? Attorneys for McCulloch (Daniel Webster, left) and Maryland (Luther Martin, right) in McCullough vs MarylandU.S. Constitutional Law Page 5March 16, 2010 Legislative Powers
  • 6. What It Really Means Congress may choose any means, not prohibited by the Constitution, to carry out its express authority. Necessary means useful or desirable, not indispensable or essential. the “provision is made in a constitution, intended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs.” This does not equate to limitless authority. Must further enumerated power Must not violate the Constitution.U.S. Constitutional Law Page 6March 16, 2010 Legislative Powers
  • 7. Placement of the Clause Art I, Sec 8 Art I, Sec 9 Sets forth powers that Contains a list of things Congress has. Congress cannot due. Marshall says the Places limits on Necessary and Proper Congress. Clause is placed here to Marshall says if expand powers. Necessary & Proper Clause as a limited clause, it would have been placed here.U.S. Constitutional Law Page 7March 16, 2010 Legislative Powers
  • 8. Constitutionality of the Law Power to create a bank (which Marshall says Congress has) also includes power to preserve its existence. Power to tax is power to destroy (the national bank).U.S. Constitutional Law Page 8March 16, 2010 Legislative Powers
  • 9. Impact of McCulloch Rejects idea of “compact federalism” Grants Congress expansive powers Limits ability of states to interfere with federal activities. NOTE – in Commerce Clause the question was whether Congress could interfere with state activities. These important points continue today!U.S. Constitutional Law Page 9March 16, 2010 Legislative Powers
  • 10. Later Cases U.S. vs Gettysburg Elec. Ry. Co. (1896) considered whether Congress had the power to condemn a railroads land in what was to be Gettysburg National Military Park. Gonzales v. Raich (2005) – Home-grown marijuana case. Scalias concurring opinion used both Commerce Clause and Necessary & Proper Clause.U.S. Constitutional Law Page 10March 16, 2010 Legislative Powers
  • 11. How A Bill Becomes A LawU.S. Constitutional Law Page 11March 16, 2010 Legislative Powers
  • 12. Introducing the Bill Must formally be done by member of Congress can be done on behalf of Administration, interest group, citizen, etc. Except for revenue bills, can originate in either house. Bills are assigned bill number by clerk then sent to appropriate committee by Speaker or Senate Leader.U.S. Constitutional Law Page 12March 16, 2010 Legislative Powers
  • 13. A Bill in Committee Sent first to Standing Committee. permanent legislative committees given jurisdiction over certain areas of government. Then usually assigned to a sub-committee where a hearing takes place. sub-committee issues report (favorable or unfavorable) or can change the bill before sending it back to the standing committee. Bill then gets sent to full House or SenateU.S. Constitutional Law Page 13March 16, 2010 Legislative Powers
  • 14. Bill Before the Full House Rules Committee sets rules for House debate. The Constitution provides that a majority of the House constitutes a quorum to do business. How long a bill may be debated is usually restricted. The vote can be done by voice vote or recorded vote. recorded vote is usually done electronically or by roll call. If passed, could go to Conference Committee, Senate or President (depending on what Senate has done)U.S. Constitutional Law Page 14March 16, 2010 Legislative Powers
  • 15. Bill Before the Senate No restriction on debate time. debate cannot begin without unanimous consent. one senator may place “secret hold” on bill, requiring cloture vote to overcome it. Use of filibuster (unlimited debate) can kill a bill. Filibuster can be stopped by cloture vote, which requires 60 votes. Voting can take place by voice or recorded vote.U.S. Constitutional Law Page 15March 16, 2010 Legislative Powers
  • 16. Conference Committee When House & Senate pass different versions of bill, it goes here. Composed of senior members of committee responsible for the bill from each chamber. Goal is to create compromise version that will then again be voted on by each house. Once compromise is reached, new version sent to each chamber for vote. No amendments may be added.U.S. Constitutional Law Page 16March 16, 2010 Legislative Powers
  • 17. Health Care Example (2009-2010) Nov 7: House passes its health bill late Saturday night, by a 220-215 margin. Nov 21: Senate votes to begin full debate on major healthcare legislation. Dec 21: Senate votes 60-40 along party lines to end debate on its healthcare reform bill with the last of Democrat hold-outs backing the bill. Dec 24: Senate passes the bill 60-39 on Christmas Eve. Jan 19: Dems lose filibuster-proof majority in Senate. compromise bill can now be stopped by filibuster.U.S. Constitutional Law Page 17March 16, 2010 Legislative Powers
  • 18. The Final Step Once a bill passes both houses, it is sent to the President who can: sign the bill, making it law. veto the bill, sending it back to Congress where both houses either must: override the veto with 2/3 vote OR pass new legislation Refuse to sign the bill, allowing it to be become law after 10 days.U.S. Constitutional Law Page 18March 16, 2010 Legislative Powers