The document provides an overview of legislative powers under the U.S. Constitution. It discusses how Congress is organized into two chambers, the House of Representatives and Senate. It outlines the express powers granted to Congress in Article I, Section 8 of the Constitution, including the power to tax, spend, regulate interstate commerce, and provide for the national defense. It also discusses the lawmaking process and how Congress uses its taxing and spending powers to influence policy.

1. Fundamentals of American Constitutional Law
Legislative PowerLegislative Power
Text in RED are words you should learn
Text in BLUE are links to additional resources

2. Warm Up Exercises
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Quiz - https://vt.uos.de/1ultv
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Independence from England was deemed necessary because:
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The United States Federal Government is deemed to be a
limited government because:
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In order to become law, all bills must also be signed by the
President. This is an example of:
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When we talk about each of the 50 states in the United States
being sovereign, we are really talking about:

3. Required Introductory Material
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To get a better understanding of President Trump's declaration of
a National Emergency along the border with Mexico, please read
and listen to the following (also posted to StudIP/Learnweb):
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Donald Trump will nationalen Notstand ausrufen (die Zeit,
14.02.19)
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PODCASTS:
– Trump wendet Shutdown ab und will den Notstand ausrufen
– Ein Monat nationaler Notstand in USA

4. The Emergency
https://www.youtube.com/watch?v=YHoJAFJMpTY

5. Initial Questions
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Is declaring a national emergency to build the wall an “unlawful
act.”
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Who has the power to determine how money is spent?
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Who has the power to declare a national emergency?
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Under what circumstances can the opposition challenge this in
court?

6. Initial Questions
related to the introductory material
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Is this an “Erosion of Separation of
Powers?”
– Congress has the power of the purse
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Can the President send soldiers to
border?
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Who controls the asylum process?
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Can private land be taken to build
the wall?
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Other questions you have?

7. Session Objectives
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Become familiar with the structure of the legislative branch.
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Learn about the express and limited powers given to the
legislative branch in the Constitution.
●
Begin to analyze how vague terms in the constitution allow for
legislative power to be stretched.

8. Session Outline
I. Branches of U.S. Federal Government
II. How Congress is Organized
III. How Americans Vote
IV. Express Legislative Powers
V. How a Bill Becomes a Law
VI. Taxing Power
VII. Spending Power

9. American Federal Government
What is the “job” of each branch?

10. 4/2/19 10
United States Congress
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Two Houses
– Senate – 100 members, two from each state, six-year terms
(staggered), minimum age = 30.
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Filibuster (unending debate) & Cloture (60 votes to stop the debate)
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Confirms appointments, ratifies treaties.
– House of Representatives – 435 members, number per state depends
on population, two-year terms, minimum age = 25.
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All bills regarding revenue must start here. Why?
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Removal by 2/3 vote; Censure (punishment) by majority vote.

11. 4/2/19 11
United States Senate
Majority Leader of the
U.S. Senate
Mitch McConnell (R)
since January 3, 2015
Minority Leader of the
U.S. Senate
Chuck Schumer (D)
since January 3, 2017
The Senate is currently composed of 53 Republicans, 45 Democrats, and 2 independents,
both of whom caucus with the Democrats.
President pro tempore of
the United States Senate
Chuck Grasssley (R)
since January 3, 2019
3rd
in line to the presidency
Vice President of the
United States of America &
President of the United
States Senate
Mike Pence
since January 20, 2017
1st
in line to the presidency

12. 4/2/19 12
United States House of Representatives
Kevin McCarthy (R)
Minority Leader
Since January 3, 2019
2nd
in line to the presidency
Nancy Pelosi (D)
Speaker of the House
since January 3, 2019

13. 4/2/19 13
House of Representatives
http://2010.census.gov/2010census/data/embedmap.php

14. 4/2/19 14
A Diversion into Voting
Question 1

15. 4/2/19 15
Constitutional Amendments
Related to Voting
●
15th Amendment
– Giving former slaves the right
to vote
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17th Amendment
– Senators elected by direct
election
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19th Amendment
– Women given the right to vote
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23rd Amendment
– Gives D.C. electoral college
votes
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24th Amendment
– No poll tax
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26th Amendment
– Sets voting age to 18

16. 4/2/19 16
“First Past the Post” System
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Members of Congress elected
by “first past the post”
(Mehrheitswahl)system.
– Person with the most votes
wins.
– Senators represent the entire
state.
– Representatives represent
“House Districts” (see next
slide) within each state.
●
Similar to a Wahlkreis
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No proportional
representation!
– Verhältniswahlrecht
Countries that have first-past-the-post

17. 4/2/19 17
House Districts Map
Note how some states only have on
Representative
Strangely shaped districts
Multiple
districts in
large cities
These are redrawn be each STATE every 10
years

18. 4/2/19 18
Ist die US-Wahl gezinkt?
●
Please read the article
with highlights found in
StudIP.
●
Or click here for the
original version without
highlights.

19. 4/2/19 19
Coordinated “Wahlbetrug”?
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Coordinated “Wahlbetrug” virtually impossible.
– Elections are run locally, usually at the county (Kreis) level!

20. 4/2/19 20
How Americans Vote
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General Rule – no automatic registration (Wählerregistrierung)
– One must affirmatively register to vote
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List of registered voters (Wahlberechtigte) kept by local government.
– This opens up the possibility of registering in two different places, which is
a crime!
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Each local election authority chooses method of voting (Wahlmodus)
– Paper, punch ballots, machine, etc.
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Voting law is State law.
– Voter ID Laws, Felon voting laws, etc.

21. 4/2/19 21
The Problem of Gerrymandering
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Gerrymandering =
Wahlkreisschiebung
– Impacts House of
Representatives and state
legislative elections.
– Done by redrawing
(redistricting) district lines.
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Neueinteilung {f} der
Wahlkreise
1812 political cartoon in reaction to the newly drawn state senate
election districts to favor candidates of Governor Elbridge Gerry.

22. 4/2/19 22
How Gerrymandering Works
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Remember, every 10 years
there is a census.
– Number of representatives each
states gets is recalculated
– Some states gain, some states
lose.
– Each district should contain
roughly same number of people.
– In each STATE, the lines can be
redrawn
YouTube Link

23. 4/2/19 23
Legislative Power
Question 2

24. Powers herein granted
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“All legislative Powers herein
granted shall be vested in a
Congress of the United
States . . . “
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Article I, Section 1 of the
United States Constitution
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Alle in dieser Verfassung
verliehene gesetzgebende
Gewalt ruht im Kongreß….”
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This is limited government!
– Congress only has these
express powers. No others.

25. Article 1, Section 8
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Spend, Tax, Finances (1, 2,
5, 6) – Ausgabe, Steuer, Finanzen
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Defense (1, 11, 12, 13, 14,
15, 16) - Verteidung
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Commerce (1, 2, 3, 7, 8) -
Handel
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Immigration (4) - Einwanderung
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Bankruptcy (4) - Insolvenz
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Create Courts (9) -
Gerichtswesen
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Create a National Capitol
(17) - Hauptstadt
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Maritime Law (10) - Seerecht
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Misc (18) - sonst.
NOTE – numbers = in which clause the power is found.

26. Lawmaking
Art. I, Sec. 7
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Both the Senate and House
must pass identical bills.
– All bills are voted on by both.
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The President can
– Sign the bill into law
– Veto the bill
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This can be undone by 2/3
vote of both Houses
– Do Nothing
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After ten days the bill
automatically becomes law

27. Power of the Purse
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“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.”
– Article I, Sec. 7
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The law usually says how the
money is to be spent.
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The law can give President
discretion over how money should
be spent
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Alle Gesetzesvorlagen zur Aufbringung
von Haushaltsmitteln gehen vom
Repräsentantenhaus aus; der Senat
kann jedoch wie bei anderen
Gesetzesvorlagen Abänderungs- und
Ergänzungsvorschläge einbringen.

28. 4/2/19 28
Tax & Spend Powers
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“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….”
– Article 1, Section 8, Clause 1
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“lay taxes” = the power to tax
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“provide for” = spending
power
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Der Kongreß hat das Recht
Steuern, Zölle, Abgaben und
Akzisen aufzuerlegen und
einzuziehen, um für die Erfüllung
der Zahlungsverpflichtungen, für
die Landesverteidigung und das
allgemeine Wohl der Vereinigten
Staaten zu sorgen….”

29. Tax Power: Direct taxes
Art. 1,
●
Representatives and direct
Taxes shall be apportioned
among the several States
which may be included within
this Union, according to their
respective Numbers…..”
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Direct taxes prohibited unless
based on state population.
●
Direct taxes =
– Income tax (but see
16th Amendment16th Amendment)
– Head tax (flat rate on each
person)
– Unrealized capital gains (noch
nicht erzielter Kapitalagewinne)
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“Die Abgeordnetenmandate und die
direkten Steuern werden auf die
einzelnen Staaten, die diesem Bund
angeschlossen sind, im Verhältnis zu
ihrer Einwohnerzahl verteilt”

30. Allowed (indirect) Taxes
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Taxes on transactions
– Inheritance Taxes
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Erbschaftssteuern
– Corporate income taxes
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Körperschaftssteuer
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Excise taxes
(Verbrauchssteuer), tariffs
(Zölle)
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What about a wealth tax
(Vermögenssteuer)?

31. 4/2/19 31
The Limits of the Taxing Power
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Can taxing power be
used to regulate? Yes
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Even in a manner
beyond the Congress’
enumerated power?
– Generally yes, BUT
cannot violate other
provisions of the
Constitution.
●
Example – a racially
discriminatory tax
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Es ist ein kompliziertes Urteil. Die Gesund-
heitsreform, das wichtigstes Projekt von
Präsident Barack Obama, hat Bestand - aber
nicht aus den Gründen, mit denen die
Regierung vor dem Obersten Gerichtshof ar-
gumentiert hat: Sie darf die Amerikaner nicht
dazu zwingen, eine Krankenversicherung
abzuschließen - was die wichtigste Voraus-
setzung für die Einführung einer allgemeinen
Krankenversicherung ist. Aber sie darf eine
Steuer erheben, die all jenen erlassen wird,
die eine Krankenversicherung abschließen.
– Sueddeutsche Zeitung, 29. Juni 2012 über die Entscheidung
National Federation of Independent Business v Sebelius (2012)

32. 4/2/19 32
Spending Power
●
Please read the article with
highlights found in StudIP.
●
Or click here for the original
version without highlights.
●
Feds cannot order states to
enforce federal law.
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Some states refuse to
cooperate with federal
enforcement of immigration
law.
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Trump tells states, if they do
not help, they will lose ALL
federal money.

33. 4/2/19 33
Spending Power
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Court - Spending is proper when:
(1) exercised in pursuit of the
general welfare,
(2) conditions to receive the $$ are
clearly stated,
(3) the conditions relate to a federal
interest, and
(4) It does not induce states to do
things that would be
unconstitutional.
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The limits on using spending to regulate/get states to act:

34. 4/2/19 34
Additional Limitation:
South Dakota v. Dole (1987)
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Facts: Federal Gov’t argues
raising drinking age to 21 will
advance this interest by making
the roads even safer.
– Congress passes law telling
states that they will lose 10% of
their federal highway funds if they
do not raise their minimum
drinking age to 21.
– Federal interest in giving states
money for roads is to create a
safe system of roads.
– Federal Gov’t argues raising
drinking age to 21 will advance this
interest by making the roads even
safer.

35. 4/2/19 35
Apply the Test
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General Welfare?
– “Congress found that the
differing drinking ages in the
States created particular
incentives for young persons
to combine their desire to
drink with their ability to drive,
and that this interstate
problem required a national
solution.”
●
“The means it chose to address
this dangerous situation were
reasonably calculated to
advance the general welfare.”

36. 4/2/19 36
Apply the Test
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Conditions clearly stated?
– “The conditions upon
which States receive the
funds, moreover, could not
be more clearly stated by
Congress.”
– Make drinking age 21 or
no federal money for
roads.

37. 4/2/19 37
Apply the Test
●
Federal Interest?
– “ the condition imposed by
Congress is directly related to
one of the main purposes for
which highway funds are
expended - safe interstate
travel.”
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“A (study) concluded that the lack
of uniformity in the States' drinking
ages created "an incentive to drink
and drive" because "young
persons commut[e] to border
States where the drinking age is
lower."

38. 4/2/19 38
An Additional Limitation
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“Our decisions have recognized that in some circumstances the
financial inducement offered by Congress might be so coercive
as to pass the point at which "pressure turns into compulsion."
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“Here, however, Congress has directed only that a State
desiring to establish a minimum drinking age lower than 21 lose
a relatively small percentage of certain federal highway funds.”
– Losing 10% of funds for failure to comply = “inducement,”
– ≠ compulsion.

39. 4/2/19 39
National Federation of Independent
Business v Sebelius (2012)
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States who do not agree to provide more people with Medicaid
health insurance will lose all federal Medicaid funding.
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“Congress may use its spending power to create incentives for
States to act in accordance with federal policies. But when
"pressure turns into compulsion," the legislation runs contrary to
our system of federalism.” - majority opinion
●
In Dole, the loss of funds amounted to 5% of states' total road budget, here
the loss of funds amounts to between 50% and 80% of states' Medicaid
budget.
– This is compulsion rules the Court.

40. 4/2/19 40
Compulsion?
●
Go back read the article from
Die Zeit
●
Is the threat to take away
money from cities for failing
to enforce federal
immigration laws inducement
or compulsion?
– Is it closer to the Dole case or
the Sebelius case?