Congressional Power, Part I


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Part of a series of lectures given to students in the University of Osnabrück's foreign law program.

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Congressional Power, Part I

  1. 1. Legislative Powers Part I Introduction to Congressional Powers & the Necessary and Proper ClauseU.S. Constitutional Law Page 1 Legislative Powers
  2. 2. Congress Two Houses Senate – 100 members, two from each state, six-year terms (staggered). Filibuster & Cloture Confirms Executive and Judicial appointments House – 435 members, number per state depends on population, two-year terms. Power of the purse Removal by 2/3 vote Censure (punishment) by majority vote.U.S. Constitutional Law Page 2 Legislative Powers
  3. 3. House of Representatives Constitutional Law Page 3 Legislative Powers
  4. 4. Lawmakers Legislative Branch = lawmakers But they do much more: Administrative powers Taxing & Spending powers Supervisory powers Establishment powers War powers Regulatory powersU.S. Constitutional Law Page 4 Legislative Powers
  5. 5. How A Bill Becomes A LawU.S. Constitutional Law Page 5 Legislative Powers
  6. 6. 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 6 Legislative Powers
  7. 7. 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 7 Legislative Powers
  8. 8. 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 8 Legislative Powers
  9. 9. 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 9 Legislative Powers
  10. 10. 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 10 Legislative Powers
  11. 11. 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 11 Legislative Powers
  12. 12. 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 12 Legislative Powers
  13. 13. Taxing Power Under Articles of Confederation, Congress had no taxing power. Historical difference between direct v. indirect and revenue raising v. regulatory, but not today. Although, its unlikely that a direct tax on property would be constitutional. As long as there is some connection to revenue raising, tax will be allowed.U.S. Constitutional Law Page 13 Legislative Powers
  14. 14. Spending Power Congress has broad powers to spend to advance “general welfare.” Congress may spend in any way it believes will serve general welfare so long as it does not violate another constitutional provision. Can use spending power to regulateU.S. Constitutional Law Page 14 Legislative Powers
  15. 15. 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 15 Legislative Powers
  16. 16. 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 16 Legislative Powers
  17. 17. 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 17 Legislative Powers
  18. 18. 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 18 Legislative Powers
  19. 19. 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 19 Legislative Powers
  20. 20. 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 20 Legislative Powers
  21. 21. 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 21 Legislative Powers
  22. 22. 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. Does the Congress have the express power to condemn land? The Court eventually says that the land condemnation was necessary to further express power. Which ones?U.S. Constitutional Law Page 22 Legislative Powers
  23. 23. Necessary and Proper? A federal civil-commitment statute authorizes the Department of Justice to detain a mentally ill, sexually dangerous federal prisoner beyond the date the prisoner would otherwise be released. . . . Here we ask whether the Federal Government has the authority under Article I of the Constitution to enact this federal civil-commitment program or whether its doing so falls beyond the reach of a government "of enumerated powers."U.S. Constitutional Law Page 23 Legislative Powers