2. Art. I Sect. 8: Powers of Congress
Overview: The Constitution specifically lists (enumerates)
what powers are given to Congress and what powers are
not given to the states. In other words, if a power is not
listed in Art. I Sect. 8, then Congress is not authorized to
do it. On the other hand, if a power is not forbidden to the
states, and not listed in Section 8, then it is reserved to the
states and to the people. Congress should not be involved.
See Amendment X.
Note also that the powers are not meant to overlap between
the states and Congress.
What are the powers that are delegated to Congress?
3. 1. Power to tax
- To impose & collect taxes, duties, imposts & excises
duties & imposts = taxes paid on imports by businesses
importing those goods
excises = taxes on luxury and optional items such as jewelry,
tobacco, alcohol, and yachts
- Note: These taxes have to be uniform throughout the
country. Any taxes levied on the population are supposed
to be equal throughout the land and are called direct
taxes. Amendment XVI which instituted the federal income
tax in 1913 changed this.
4. Power to tax cont.
What is Congress authorized to spend tax money on?
5. Power to tax cont.
What is Congress authorized to spend tax money on?
- to pay debts of the United States
- to provide for the common defense
- to provide for the general welfare
This last phrase is the troublesome one. What does it mean?
6. Power to tax cont.
What is Congress authorized to spend tax money on?
- to pay debts of the United States
- to provide for the common defense
- to provide for the general welfare
This last phrase is the troublesome one. What does it mean?
- Whatever Congress wants it to mean as long as the
Supreme Court goes along with it
7. General Welfare
James Madison: favored a narrower interpretation in which
Congress was limited to spending only on areas related to
the enumerated powers listed in the Constitution
Alexander Hamilton favored a broader interpretation in which
Congress could spend on things outside the enumerated
powers as long as the spending benefited all Americans
rather than a smaller group within the nation. Hamilton's
view has prevailed, although without the restriction in
italics above.
Examples: Entitlement programs such as Social Security,
Medicare, and now Obamacare, which is under Supreme
Court scrutiny as well as spending on the arts, education
(federal student loans), research, etc.
8. 2. Power to Borrow Money
This is done by issuing Treasury bonds and by loaning
money from banks & foreign investors
- Deficit = ?
- National Debt = ?
9. 2. Power to Borrow Money
This is done by issuing Treasury bonds and by loaning
money from banks & foreign investors
- Deficit = annual amount that the govt spends over what it
receives in revenue that year
- National Debt = accumulation of all the budget deficits to
date
What is a legitimate reason for the govt to borrow money?
10. 2. Power to Borrow Money
This is done by issuing Treasury bonds and by loaning
money from banks & foreign investors
- Deficit = annual amount that the govt spends over what it
receives in revenue that year
- National Debt = accumulation of all the budget deficits to
date
What is a legitimate reason for the govt to borrow money?
- To fund a war or possibly some other emergency.
Unfortunately, our govt now runs a deficit as a matter of
course whether or not there is an emergency.
11. 3. Power to regulate commerce
foreign nations, the Indians, and
between states
Commerce = ?
12. 3. Power to regulate commerce with
foreign nations, the Indians, and
between states
Commerce = trade or exchange of goods
Note: States can only regulate trade within their own borders.
Once something crosses state or national boundary lines,
Congress is in charge
Unfortunately, through a series of Supreme Court rulings,
this power has been greatly expanded so that the federal
govt and its agencies intervene in business matters
through a mass of federal laws and regulations. (Wickard
v. Filburn)
Known as the Commerce Clause
13. 4. Power to regulate naturalization &
bankruptcy laws
Naturalization = ?
14. 4. Power to regulate naturalization &
bankruptcy laws
Naturalization = process by which an immigrant can
become a citizen
Thus, Congress sets the requirements for citizenship
Bankruptcy = ?
15. 4. Power to regulate naturalization &
bankruptcy laws
Naturalization = process by which an immigrant can
become a citizen
Thus, Congress sets the requirements for citizenship
Bankruptcy = method by which a debtor is declared unable
to pay his creditors.
Bankruptcy laws & naturalization laws are uniform
throughout the country so that it isn't easier or harder to
declare bankruptcy or gain citizenship in one state than
another.
16. 5. Power to control currency &
weights & measurements
Only the federal govt can issue coins and paper money
The metric system has been declared the preferred system,
but conformance is voluntary
Why does it make sense for the federal govt to be in charge
of these two areas?
17. 5. Power to control currency &
weights & measurements
Only the federal govt can issue coins and paper money
The metric system has been declared the preferred system,
but conformance is voluntary
Why does it make sense for the federal govt to be in charge
of these two areas?
- Businesses, banking, and trade would be much harder
without uniformity in the currency and measurements. Too
much to keep track of! And unstable financially.
Note: In 1934 Congress decided to go off the gold standard
meaning that our paper money is not backed by gold. Its
value is based on the supposed trustworthiness of the govt
that issues it. It's called fiat money, declared by law to be
worth its face value.
18. 6. Power to punish counterfeiting
Counterfeit = ?
19. 6. Power to punish counterfeiting
Counterfeit = to make an imitation or forgery of something, in
this case money
Note: This is one of the few crimes over which Congress has
direct authority. Most other crimes are prosecuted by the
states.
20. 7. Power to establish post offices &
post-roads
Does this mean that the post office has to be run by the
federal govt?
21. 7. Power to establish post offices &
post-roads
Does this mean that the post office has to be run by the
federal govt?
- Not necessarily, but the federal govt does need to make
sure that mail will be delivered.
Note: The postal road provision provided the basis of the
U.S. Highway system and is the legal basis for the creation
of the interstate highway system (as is the mandate to
defend the nation.)
22. 8. Power to issue copyrights and
patents
Copyright = ?
Patent = ?
23. 8. Power to issue copyrights and
patents
Copyright = protects creators of written and other works from
having their works copied and/or claimed by others for the
lifetime of the creator plus 50 years
Patent = another form of intellectual property protection that
gives to an inventor exclusive rights to the use and profits
of his invention for a set period of time.
These intellectual property protections (trademarks, too)
were a brilliant innovation on the part of the Founders,
leading to an explosion of inventions and creativity in
America.
Of course, the system isn't perfect and doesn't protect
inventors in overseas markets, let alone how computers
and other technology have made it more difficult to protect
people's creative work.
24. 9. Power to establish courts other
than the Supreme Court
Top court: Supreme Court
Next level: 13 Circuit Courts and the Court of Appeals for the
Armed Forces
Next level down: 94 District Courts in the states, Special
Jurisdiction Courts (tax, trade, veterans), and Courts of
Review for the various military branches
Note: The President appoints the judges to these federal
courts, and the Senate gets to approve them (or not.)
- More on the judicial system when we get to Article III.
26. 10. Power to punish piracy
Piracy = robbing ships on the high seas
Congress defines these crimes and sets the penalties for
them.
This affects American shipping, terrorism, hijacking of
planes, and drug trafficking.
This is another example of a crime that Congress is
empowered to oversee and punish.
27. 11. Power to declare war
Only Congress can officially declare war.
Even though the President is Commander-in-Chief of the
Armed Forces, he is not allowed to declare war.
1973 War Powers Act was supposed to check the
President's ability to engage in military engagements, but
since that time every President in office has initiated at
least one military intervention, usually limited in scale.
Which wars in U.S. History involved official declarations by
Congress?
28. 11. Power to declare war, etc.
Only Congress can declare war.
Even though the President is Commander-in-Chief of the
Armed Forces, he is not allowed to declare war.
1973 War Powers Act was supposed to check the
President's ability to engage in military engagements, but
since that time every President in office has initiated at
least one military intervention, usually limited in scale.
Which wars in U.S. History involved official declarations by
Congress? War of 1812, Mexican War (1846), Spanish-
American War (1898), WWI and WWII. The Iraq War in
2003 fell under “authorization to use military force” and
was not an official declaration of war even though it had
Congressional approval.
29. 11. Letters of marque & reprisal,
capture of enemies & their goods
Letters of marque & reprisal = were used to allow private
ships and others to arm & fight in wartime and to capture
enemy goods and people
This practice is no longer followed but could be renewed in a
time of need.
Without such a letter, a ship or person engaged in this
activity would actually be guilty of piracy or other crime.
30. 12 & 13. Power to raise & fund an
army and a navy
Congress can set up an army and a navy (obviously, they did
not know about the need for an Air Force)
Congress also makes the rules for the Armed Services
Note that appropriation (funding) could not last more than
two years. Why?
31. 12 & 13. Power to raise & fund an
army and a navy
Congress can set up an army and a navy (obviously, they did
not know about the need for an Air Force)
Congress also makes the rules for the Armed Services
Note that appropriation (funding) could not last more than
two years. Why?
- The intent was to avoid having a standing army, but that's
what we have today.
Why didn't the Founders like the idea of a standing army?
32. 12 & 13. Power to raise & fund an
army and a navy
Congress can set up an army and a navy (obviously, they did
not know about the need for an Air Force)
Congress also makes the rules for the Armed Services
Note that appropriation (funding) could not last more than
two years. Why?
- The intent was to avoid having a standing army, but that's
what we have today.
Why didn't the Founders like the idea of a standing army?
- They feared it would disturb domestic peace and/or cause
international trouble. The military is trained to fight and
therefore motivated to be involved in wars and similar
exercises. It must be restrained.
33. 14. Power to make rules for the
armed services
Are active-duty military personnel under the same laws as
the rest of Americans?
34. 14. Power to make rules for the
armed services
Are active-duty military personnel under the same laws as
the rest of Americans?
- No! They are bound by military law rather than civilian law.
They have their own police (on their bases) and court
system.
35. 15. Power to call state militias into
action
What do we call the modern militia?
36. 15. Power to call state militias into
action
What do we call the modern militia?
- the National Guard
Under what conditions is Congress allowed to call out the
militia?
37. 15. Power to call state militias into
action
What do we call the modern militia?
- the National Guard
Under what conditions is Congress allowed to call out the
militia?
- to carry out federal laws
- to suppress rebellions
- to turn back foreign invaders
38. 16. Power to organize, arm &
discipline militia; States appointed
officers & trained them
The states no longer appoint the officers nor conduct the
training but the state governors are officially in charge and
can call the National Guard into action in an emergency.
Note that the National Guard is under the control of the army
and air force so it is subject to their regulations and
training procedures and can now be called into duty
overseas.
Even so the National Guard can act as a check against the
regular Armed Forces because it is manned by citizen
soldiers who serve part-time and hold civilian jobs and are
thus potentially more committed to domestic life.
39. 17. Power to make laws for the
District of Columbia and other
federal properties
DC = area in which the nation's capital is located
- Congress has direct jurisdiction over this 10 square mile
area; it is not part of any state
- However, it now has a mayor and council as well as 3
electoral votes for the President and a non-voting member
of the House
Why hasn't it become a state?
40. 17. Power to make laws for the
District of Columbia and other
federal properties
DC = area in which the nation's capital is located
- Congress has direct jurisdiction over this 10 square mile
area; it is not part of any state
- However, it now has a mayor and council as well as 3
electoral votes for the President and a non-voting member
of the House
Why hasn't it become a state?
- The Republicans fight this b/c DC is so Democratic that the
GOP dreads 2 more Democratic senators & House
Representative
41. 17. Power over federal lands
Besides DC, what other types of properties are also included
under this power?
42. 17. Power over federal lands
Besides DC, what other types of properties are also included
under this power?
- national parks, monuments, military bases & forts, etc.
- Territories like Puerto Rico, Guam, and the like
43. 18. Necessary & Proper Clause or
the Elastic Clause
This gives Congress power to do whatever it needs to do in
order to execute the previously listed powers.
Why is it called the Elastic Clause?
44. 18. Necessary & Proper Clause or
the Elastic Clause
This gives Congress power to do whatever it needs to do in
order to execute the previously listed powers.
Why is it called the Elastic Clause?
- b/c it has been stretched many times to allow Congress to
expand its power astronomically over the years.
McCullogh v. Maryland (U.S. Bank clerk would not pay
Maryland tax & won, thus establishing that Congress had
power to set up a national bank which was not subject to
the states)
Good example: creating an Air Force
Bad example: federal minimum wage laws, regulation of
intrastate commerce: Wickard v. Filburn (wheat farmer)
46. Elastic Clause cont.
What check is there on Congress's power under this clause?
- the Supreme Court's rulings, but they usually favor an
expansion of Congress's power
James Madison: “... the choice must always be made, if not
of the lesser evil, at least of the GREATER, not the
PERFECT good; and that in every political institution, a
power to advance the public happiness involves a
discretion which may be misapplied and abused.”
The Founders sought to limit the federal govt's power without
making the govt impotent. Either extreme interferes with
the people's freedom and/or security. It's a hard balance to
achieve.
