Constitutional Analysis

What powers does Congress have?

• Congress receives its YOUR TASK:
powers to act from the
Constitution. • Read Article 1.
• Article I sets up Congress • Underline all of the
and lists its duties and
responsibilities. powers of Congress
•• The major job of that are listed.
Sets up a bicameral legislature
• Congress is to pass as a check
President mentioned • onIn Congress
the margin
legislation.
• Details how House and Senate toidentify
be set up the power as
• However, it also has non-
• Article 1 Section
legislative duties8 and L “legislative”
– Interstate Commerce or NLto
Clause (excuse
interfere?) and ‘elastic clause’ (left open possibility to
legislate on important issues) “non-legislative”.
responsibilities.
 Enquiry Question:
What powers does Congress have?
 Learning Outcomes
• To describe the enumerated powers of Congress in
the constitution
• To analyse the extent to which Congress has
increased the reach of its power through expansive
reading of the constitution
• To evaluate the impact of these constitutional
clauses on the extent of congressional power
Congress
• has expressed powers— or those directly
stated (sometimes called enumerated powers)
• has implied powers that are reasonably
assumed based on the “necessary and proper”
clause.
• is denied certain powers based on Article I,
Section 9.
 Conflict Over Congress’s Power
Since 1789, Congress has enlarged its powers and, therefore, the powers
of the national government. Americans have argued ever since about how
powerful the national government should become.

Strict constructionists believe the Loose constructionists interpret the

Constitution should be interpreted Constitution more broadly. They
narrowly. The result would be a claim the Constitution is a living
government with limited powers. document that gives the government
The national government could use whatever powers it needs to grow
the expressed powers as much as it and change with the changing nation.
wanted, because the Constitution Generally, loose constructionists have
lists those powers. However, the had more influence in Congress, in
government could use implied the presidency, and on the Supreme
powers only when they were Court. They have succeeded in
absolutely necessary to fulfil expanding the powers of the national
expressed powers. government.
 Implied Powers of Congress
Landmark Supreme Court Case
McCullochv.Maryland(1819):
• Congress set up a national bank in 1816. Strict
constructionists did not believe the Constitution gave
Congress this power.
• The Court ruled that Congress had an implied power to set
up the bank. The implied power was based on the
“necessary and proper” clause.
• The national bank aided Congress in fulfilling its duties to
tax, borrow money, create money, and regulate commerce,
or business.
• McCulloch McCullochv.Maryland was also important
because the Court ruled that federal law took priority over
state law.
 Legislative Powers of Congress
YOUR TASK: Add each power to the table on your worksheet “Type of Legislative
Powers” to show the expressed and implies powers of Congress with respect to
powers relating to money, commerce, military and national defence or other types of
legislative powers.
• To outlaw discrimination in movie theatres, • To regulate bankruptcies (Clause 4)
restaurants, hotels, and similar places • To grant copyrights and patents (Clause 8)
• To make all laws necessary and proper for • To print and coin money (Clause 5)
carrying out the other powers (Clause 18) • To draft Americans into the armed forces
• To govern Washington, D.C. (Clause 17) • To limit and regulate immigration
• To tax (Clause 1) • To set up, fund, and regulate the armed forces
• To regulate business between states and (Clauses 12, 13, and 14)
business with other nations (Clause 3) • To use tax revenue to support programs such
• To punish crimes at sea (Clause 10) as education and public housing
• To establish laws for naturalization (Clause 4) • To protect those with disabilities
• To borrow money (Clause 2) • To punish counterfeiters (Clause 6)
• To punish those who do not pay their taxes • To declare war (Clause 11)
• To provide for, regulate, and call into service a • To set up a system of federal courts beneath
militia (the National Guard) (Clauses 15 and the Supreme Court (Clause 9)
16) • To set a minimum wage
• To set up post offices (Clause 7)
 Congressional Powers: Money
• Congress has the power to authorize the creation of money.
• The money powers give Congress the power to tax and
appropriate, or authorize the spending of, the income from
taxes. Because of its tax-and-spend powers, Congress has a
great deal of control over the nation’s policies. Congress must
approve all funding for every program that the federal
government sets up.
• All bills that raise money for the government begin in the
House. The Framers set up this system on purpose.
Representatives are elected every two years. As a result, the
Framers thought they would be more careful to follow the
wishes of voters.
• In order to pay for programs, Congress passes appropriations
bills. Requests to fund programs usually come from the
president. Each year, the president sends a budget proposal to
Congress. Both houses review the proposed budget.
Committees hold hearings to determine how much they think
the executive departments need.
 Congressional Powers: Commerce

• Commerce is the buying and selling of goods and

services.
• The Constitution gives Congress the power to
regulate commerce between states and with other
nations.
• However, over the years, Congress has enlarged the
meaning of commerce. Today, commerce means
“any business that crosses state lines”
• For example, Congress regulates banking, television
and cable, clean air, and working conditions.
 Interstate Commerce
Landmark Supreme Court Case
Heart of Atlanta Motelv.United States(1964):
• Congress passed the Civil Rights Act of 1964 to ban
discrimination in restaurants, hotels, motels, and
jobs.
• The owner of the Heart of Atlanta Motel sued to
have the law declared unconstitutional.
• The owner claimed that it was a local business.
• However, the motel advertised on interstate
highways and attracted travellers from out of state.
• The Supreme Court ruled that the motel was part of
interstate commerce. The Civil Rights Act was
declared constitutional.
Congressional Powers: Defence & Military
• Congress and the president share military and national
defence powers. T
• he president is commander in chief of the armed forces.
• However, he must ask Congress to declare war.
• Congress has declared war five times in U.S. history.
• Yet, U.S. troops have fought in more than 200 undeclared
wars.
• In 1973, Congress attempted to get back its power to
declare war.
• It passed the War Powers Act.
• A president must notify Congress within 48 hours if he
sends U.S. troops into battle.
• Congress must approve the use of troops in a war zone for
more than 60 days.
Congressional Powers: Other Powers
• The Constitution gives Congress six other legislative
powers.
• Clause 18 is the all-important “necessary and proper”
clause.
• The other five expressed powers deal with particular
topics.
• Copyrights protect the rights to their works of writers,
artists, and composers for a period of time.
• Patents enable inventors to control how their inventions
are manufactured and sold.
• Congress was given the power to set up all federal courts
under the Supreme Court in Clause 9.
• Clause 7 allows Congress to set up the post offices, Clause
4 to set laws for citizenship, and Clause 17 to govern
Washington, D.C.
 Non - Legislative Powers of Congress
• The House and the
Senate have certain
non-legislative powers.
• These are powers that
are not related to the
passing of laws.
• In most cases, the
House and the Senate
have separate duties in
fulfilling these powers.
YOUR TASK: Read the handout “Non-Legislative Powers of
Congress”. This table lists the powers and then explains the
duties of each house with respect to each power.
 Learning Outcomes
• To describe the enumerated powers of Congress in
the constitution
• To analyse the extent to which Congress has
increased the reach of its power through expansive
reading of the constitution
• To evaluate the impact of these constitutional
clauses on the extent of congressional power
How has congressional power expanded?
YOUR TASK: Further Reading on
Read the handout “The Reach Landmark Cases:
of Congressional Power”. McCulloch v Maryland (1819)
Consider the issues: http://law2.umkc.edu/faculty/
• What does it mean to be a projects/ftrials/conlaw/mccull
government of enumerated och.html
powers? US v Gettysburg (1896)
• How should Article I's http://law2.umkc.edu/faculty/
"Necessary and Proper projects/ftrials/conlaw/gettsb
Clause" be construed?
urg.html
In pairs, consider the US v Comstock (2010)
discussion questions and http://law2.umkc.edu/faculty/
prepare notes to aid you in
discussion. projects/ftrials/conlaw/comsto
ck2010.html
 Learning Outcomes
• To describe the enumerated powers of Congress in
the constitution
• To analyse the extent to which Congress has
increased the reach of its power through expansive
reading of the constitution
• To evaluate the impact of these constitutional
clauses on the extent of congressional power
 Constitutional Analysis

What powers does Congress have?

YOUR TASK:
• Return to your annotated copy of Article 1.
• Review your annotations in the margin to identify the
powers as L “legislative” or NL “non-legislative”.
• Now highlight the powers to reflect the different
• categories of legislative
Sets up a bicameral powers; money powers,
legislature
• commerce powers, military
President mentioned andondefence
as a check Congresspowers, other
• legislative
Details how powers
House and Senate to be set up
• • Place an1 *Section
Article next to8 –the necessary
Interstate and proper
Commerce clause.
Clause (excuse to
interfere?)this
• Annotate andwith
‘elastic clause’
a clear (left open of
explanation possibility to of
the impact
legislate
this clause onon
important issues) power.
congressional
 Homework
Application Task:
Create a Venn Diagram showing the exclusive
and concurrent powers of the Senate and House
of Representatives.
Flipped Learning Preparation Task:
Powers of Congress (Bennett p185-189)
Stretch & Challenge Task
Article: The Necessary and Proper Clause