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The Powers of Congress
The Expressed Powers of Congress
Congress ONLY has the powers that are given to it by the Constitution. These expressed powers are explicitly written out in Article I, Section 8. There are 18 clauses that explain 27 powers given to Congress.
The Commerce Power
Commerce, generally, is the buying and selling of goods and services. The commerce power – the power of Congress to regulate interstate and foreign trade – is vital to the welfare of the nation. Its few words have prompted the growth of the greatest open market in the world. The Commerce Clause proved to be more useful for the building of a strong and United States out of a weak confederation than any other provision in the Constitution.
The Supreme Court has determined that the Commerce Clause should be defined in very broad terms. Chief Justice John Marshall , speaking for the majority in Gibbons v. Ogden wrote:
“Commerce, undoubtedly, is traffic, but it is something more; it is intercourse (interaction). It describes the commercial intercourse (interaction) between nations, and parts of nations, in all its branches, and is regulated by prescribing (setting) rules for carrying on that intercourse (interactions).”
Over the decades the Court’s sweeping definition of commerce has brought an extension of federal authority into many areas of American life. A reach of federal (national) power beyond anything the Framers could have imagined.
As another of the many examples of the point, note this: It is on the basis of the commerce power that the Civil Rights Act of 1964 prohibits discrimination in access to or service in hotels, motels, theaters, restaurants, and in other public accommodations on the grounds of race, color, religion, or national origin.
The Supreme Court upheld this use of the commerce powers in Heart of Atlanta Motel v. United States in
- The unanimous Court noted that there was “overwhelming evidence of the disruptive effect that racial discrimination has had on commercial intercourse.”
Limits on the Commerce Power The congressional power to regulate commerce is not unlimited. It, too, must be exercised in accord with all other provisions in the Constitution. In more specific terms, the Constitution places four explicit limits on the use of the commerce power. The Constitution declares that Congress
- Cannot tax exports (Article 1, Section 9, Clause 5);
- Cannot favor the ports of one State over those of any other in the regulation of trade (Article 1, Section 9, Clause 6)
- Cannot require that “Vessels bound to, or from, one state be obliged to enter, clear, or pay Duties to another” (Article 1, Section 9, Clause 6); and finally,
- Could not interfere with the slave trade until at least the year 1808 (Article 1, Section 9, Clause 1).
The Power to Tax
The constitution gives Congress the power “to lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defense and general Welfare of the United States…”
The Articles of Confederation had not given Congress the power to tax. Congress did have the power to request funds from the States; that is, Congress could ask (in reality, beg) each of the 13 States for money.
But, through the 1780s, not a single State came even remotely close to meeting the few requests that Congress made, and a number of them paid nothing at all. The government was powerless, and the lack of a power to tax was a leading cause for the creation of the Constitution.
The Purpose of Taxes Here are a number of important points regarding the taxing power: most of the money the government takes in – over 95 percent of it – will come from the various taxes imposed by Congress.
A tax is a charge imposed by government on persons or property to raise money to meet public needs. But notice, Congress does sometimes impose taxes for other purposes as well. The protective tariff is perhaps the oldest example of this point. Although it does bring in some revenue every year, its real goal is to “protect” domestic industry against foreign competition by increasing the cost of imported goods.
Taxes are also sometimes imposed to protect the public health and safety. The Federal Government’s regulation of drugs is a case in point. Only those who have a proper federal license can legally manufacture, sell, or deal in those drugs – and licensing is a form of taxation.
Limits on the Taxing Power Congress does not have an unlimited power to tax. As with all other powers, the taxing power must be used in agreement with all other parts of the Constitution. Thus, Congress cannot put a tax on church ser ices, for example – because such a tax would violate the 1st^ Amendment. Nor could it put a poll tax as a condition for voting in federal elections, for that would violate the 24th Amendment.
More specifically, the Constitution places four explicit limitations on the congressional power to tax:
- Congress may tax only for public purposes, not for private benefit, Article 1, Section 8, Clause 1 says that taxes may be levied only “to pay the debts and provide for common Defense and general Welfare of the United States…”
- Congress may not tax exports. Article 1, Section 9, Clause 5 declares “{n}o Tax or Duty shall be laid on Articles exported from any States.” Thus, customs duties (tariffs), which are taxes, can be levied only on goods brought into the country (imports), not on those sent abroad (exports).
- Direct taxes must be split among the States, according to their populations.
A direct tax is one that must be paid directly to the government by the person on whom it is imposed – for example, a tax on the ownership of land or buildings, or a capitation (head or poll) tax. An income tax is a direct tax, but it may be charged without regard to population.
Article 1, Section 8, Clause 1 provides that “all Duties, Imposts and Excises shall be uniform throughout the United States.” That is, all indirect taxes charged by the Federal Government must be charged at the
War Powers
Six of the 27 expressed powers set out in article I, Section 8 deal explicitly with the subject of war and national defense. Remember that here, too, Congress shares power with the President. The Constitution makes the President commander in chief of the nation’s armed forces, (Article II, section 2, Clause 1) and, as such, the President dominates the field. This means that all military strategic decisions are made by the President. The President is responsible to the placement and actions of the troops.
The congressional war powers are, however, both broad and significant. Only Congress can declare war. It alone has the power to raise and support armies, to provide and maintain a navy, and to make rules for governing of the nation’s military forces. Congress also has the power to provide for “calling forth the Militia” (today, the National Guard), and for the organizing, arming, and disciplining of that force. Congress is also given the power to grant letters of marque and reprisal (giving a private individual the right to capture vessels of enemy powers), and to make rules concerning captures on land and water.
As you think about congressional war powers, consider this question: Does the Constitution give the President the power to make war in the absence of a declaration of war by Congress? Many argue that it does not, but more than 200 years of American history argue otherwise. Indeed, most Presidents have used the armed forces of the United States abroad, in combat, without a congressional declaration of war.
In today’s world, no one can doubt that the President must have the power to respond, rapidly and effectively, to any threat to the nation’s security. Still, many people have long warned of the dangers in a presidential power to involve the country in undeclared wars.
The War Powers Resolution In the context of the war powers of Congress, we must examine the War Powers Resolution, a law enacted by Congress in 1973.
The war-making power as it was exercised by Presidents Johnson and Nixon during the undeclared war in Vietnam (1964-1973) moved Congress to enact the War Powers Resolution. That law provides that the chief executive can commit American military forces to combat abroad only (1) if Congress has declared war, or (2) when Congress has specifically authorized a military action, or (3) when an attack on the United States or any of its armed forces has occurred.
If troops are ordered into combat in the third situation, the President is directed to report that fact to Congress within 48 hours. Any such commitment of military forces must end within 60 days, unless Congress agrees to a longer involvement. Congress can end a commitment at any time.
The constitutionality of the War Powers Resolution remains in dispute. A determination of the question must await a situation in which Congress demands that its provisions be obeyed but the President refuses to do so.
Implied Powers (Necessary and Proper Clause)
Implied powers are those powers that are not set out in so many words in the Constitution but are, rather, implied by (drawn from) those that are. The constitutional basis for the existence of the implied powers is found in one of the expressed powers. The Necessary and Proper Clause, the final clause in Section 8 of Article I in the Constitution, gives to Congress the expressed power “To make all Law 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.”
Much of the vitality and adaptability of the Constitution can be traced directly to this provision, and even more so to the ways in which both Congress and the Supreme Court have interpreted and applied it over the years. In effect, the Necessary and Proper Clause allows Congress to choose the means “for carrying into Execution” the many powers given to it by the Constitution.
The manner in which Congress has viewed the concept, together with the supporting decisions of the Supreme Court, have made the final clause in Article I, Section 8, truly the “Elastic Clause.” It has earned that name, for it has been stretched so far and made to cover so much over the years. As much power and freedom this clause seems to give to Congress, it is still limited. The Supreme Court can declare that actions of Congress have over-reached their given power. The 10th^ Amendment says that any powers not given in the Constitution are reserved for the states and the people. The President also has specific powers the Congress cannot infringe upon.
THE IMPLIED POWERS OF CONGRESS
The Expressed Power to… Implies the power to….
Lay and Collect Taxes
Punish those who don’t pay taxes Regulate some commodities and outlaw the use of others Set conditions to qualify for federal funding
Borrow Money Establish the Federal Reserve System of banks
Create Naturalization Law Regulate and limit immigration
Raise Armies and a Navy
Draft Americans into the military Require registration for the Selective Service
Regulate Commerce
Establish a minimum wage Ban discrimination in workplaces and public facilities Pass laws protecting the disabled Regulate banking
Establish Post Offices
Prohibit mail fraud and obstruction of the mail Bar the shipping of certain items through the mail
