Article One of the United States Constitution describes the powers
of the legislative branch of the United States government, known as Congress, which includes the House of
Representatives and the Senate. The Article establishes the manner of
election and qualifications of members of each House. In addition, it outlines legislative procedure and enumerates the powers
vested in the legislative branch. Finally, it establishes limits on federal and state legislative powers.
Each of the first three Articles of the Constitution concern one of the three branches of the federal government. The
legislative branch is established under Article One, the executive branch under Article Two, and the judicial branch under
Article Three.
Amendments to Article One, unlike amendments to other articles, are explicitly restricted by the Constitution (these
restrictions are imposed by Article Five). For example,
no amendment made prior to 1808 could affect the first and fourth clauses of Section Nine. The first clause prevented Congress
from prohibiting the slave trade until 1808; the fourth barred any direct
taxes that were not apportioned among the States according to population. Furthermore, the Constitution precludes Congress from
depriving a state of equal representation in the Senate without the state's consent.
- Section 1: All legislative Powers herein granted shall be vested in a Congress of the United States, which shall
consist of a Senate and House of Representatives.
The "vesting clause" grants all legislative authority to Congress. While many states allow for popular referendums, this
clause allows only Congress and not the people directly to make federal statutes. Other vesting clauses are found in Articles 2
and 3 as well, and differ in respect to the branch of government concerned. The Constitution thereby establishes the principle of
separation of powers, whereby no branch may exercise powers that properly belong to another (for instance, the executive and
judiciary may not enact laws).
The principle that Congress cannot delegate legislative authority to other branches of government (e.g. to the Executive) is
known as the nondelegation doctrine. However, the Supreme Court has ruled that
Congress does have latitude to delegate regulatory powers to executive agencies, as long as it provides an "intelligible
principle."
Section 2: The House of Representatives
Section Two establishes the House of Representatives:
The "Well" of the House of Representatives
The House is often referred to as the "lower house" of Congress—the phrase reflects similar terminology employed when
referring to the two Houses of the British Parliament, the "upper"
House of Lords and the "lower" House of
Commons—but the powers of the House of Representatives are roughly equivalent to that of the Senate. The House of
Representatives has the sole power to originate revenue bills, while the Senate has powers relating to the approval of treaties
and nominations made by the President.
Section 2, Clause 1: Term and Electors
- Section 2: The House of Representatives shall be composed of members chosen every second year by the people of the
several states, and the electors in each state shall have the qualifications requisite for electors of the most numerous branch
of the state legislature.
Section Two provides for the election of the House of Representatives every second year by the people. Whenever vacancies
occur, the Governor of the state is required by clause 4
to issue writs of election calling a special election.
The Constitution does not spell out qualifications for voters; rather, it provides that those qualified to vote in elections
for the larger chamber of a state's legislature may vote in Congressional elections as well. Amendments to the Constitution,
however, have restricted the states' ability to set such restrictions. The Fifteenth Amendment, the Nineteenth Amendment and the Twenty-fourth Amendment bar the use of race, sex, or payment
of a tax as qualifications to vote in both federal and state elections. Furthermore, the Twenty-sixth Amendment provides that states may not set age
requirements higher than eighteen years.
Section 2, Clause 2: Qualifications
- No person shall be a Representative who shall not have attained to the age of twenty five years, and been seven years a
citizen of the United States, and who shall not, when elected, be an inhabitant of that state in which he shall be
chosen.
The Constitution provides that a representative must be twenty-five years old and an inhabitant of the state in which they are
elected, and must have been a citizen of the United States for the previous seven years. There is no requirement that a
representative reside within the district he represents; in practice, this is usually the case, but there have been occasional
exceptions.
Section 2, Clause 3: Apportionment
- Representatives and direct taxes shall be apportioned among the several states which may be included within this union,
according to their respective numbers, which shall be determined by adding to the whole number of free persons, including those
bound to service for a term of years, and excluding Indians not taxed, three fifths of all other Persons. The actual Enumeration
shall be made within three years after the first meeting of the Congress of the United States, and within every subsequent term
of ten years, in such manner as they shall by law direct. The number of Representatives shall not exceed one for every thirty
thousand, but each state shall have at least one Representative; and until such enumeration shall be made, the state of New
Hampshire shall be entitled to choose three, Massachusetts eight, Rhode Island and Providence Plantations one, Connecticut five,
New York six, New Jersey four, Pennsylvania eight, Delaware one, Maryland six, Virginia ten, North Carolina five, South Carolina
five, and Georgia three.
The number of Representatives for each state depends on its population, but each state is entitled to at least one
Representative. The population of a state originally included all "free persons", three-fifths of "other persons"
(slaves) and excluded untaxed Native
Americans. While the humanity of slaves was certainly compromised by this arrangement, its intention, and actual effect,
was to increase the political power of slave-holding states by increasing their share of seats in the House of Representatives
(see Three-fifths compromise), and subsequently, their share in the
Electoral College.
The Fourteenth Amendment changed this
provision by removing the three-fifths clause, slavery having been abolished by the Thirteenth Amendment following the Civil War. There are at present no untaxed Native Americans, so all
persons inhabiting a state—whether voters or not—count towards the population of that state. The Constitution mandated that a
Census be conducted every ten years to determine the populations of the states (the Constitution
provided for the temporary apportionment of seats until a Census could be conducted).
Under Section Two, the amount of direct taxes that may be collected from any state was
tied directly to its share of representatives. On the basis of this requirement, the income
tax was found unconstitutional in 1895, as it was not apportioned among the states. Writing for the Supreme Court, Chief
Justice Melville Fuller dismissed precedent to the contrary as "a century of error". To
permit the levying of an income tax, the Congress proposed and the states soon ratified the Sixteenth Amendment, which removed the requirement that income
taxes be apportioned among the states.
Section 2, Clause 4: Vacancies
- When vacancies happen in the Representation from any state, the executive authority thereof shall issue writs of election
to fill such vacancies.
Section 2, Clause 4, provides that when vacancies occur in the House of Representatives, it is not the job of the House of
Representatives to arrange for a replacement, but the job of the State whose vacant seat is up for refilling. The original
qualifications and procedures for holding that election are still valid.
Section 2, Clause 5: Speaker, other officers, and impeachment
- The House of Representatives shall choose their speaker and other officers; and shall have the sole power of
impeachment.
Section Two further provides that the House of Representatives may choose its Speaker and its other officers. Though the Constitution does not
mandate it, every Speaker has been a member of the House of Representatives.
Finally, Section Two grants to the House of Representatives the sole power of impeachment. Impeachments are tried in the Senate (as discussed below). The power of the House of
Representatives to impeach was modeled upon the like power of the British House of
Commons.
Section Three establishes the Senate. As noted above, the Senate is often referred to as the "upper house" of Congress,
though both chambers are roughly equal in terms of power bestowed by the Constitution. Nevertheless, as there are far fewer
Senators than Representatives, and since Senators serve for longer terms, the average Senator tends to be more influential than
his or her counterpart in the other body. Senators sometimes implicitly asserted—especially in the chamber's early history—that
theirs was the superior house of Congress, though such a claim had no explicit constitutional basis. For instance, after
assembling in 1789, the Senate unsuccessfully attempted to adopt a procedure for communication between the two houses that would
indicate the Senate's alleged superiority. The Senate desired to send its messages to the House through a mere clerk, at the same
time desiring that House messages be communicated by two Representatives, who would have to "make obeisance" (bow) when entering
and leaving the Senate chamber. Unsurprisingly, the House rejected this proposal.[citation needed]
Section 3, Clause 1: Composition and selection
- The Senate of the United States shall be composed of two Senators from each state, chosen by the legislature thereof, for
six years; and each Senator shall have one vote.
Section Three provides that each state is entitled to two Senators chosen for a term of six years. The state legislatures originally chose the Senators; legislatures could authorize the
state's Governor to make temporary appointments to fill vacancies that arose while the legislature was in recess. The
Seventeenth Amendment, however, now provides for
the direct election of Senators by their respective state's voters. This was seen as a move toward a more democratic society but
changed the political balance of power as it deprived the States of direct representation to the federal government. Under this
amendment, states may still authorize their Governors to make temporary appointments of Senators to fill vacancies but only until
a special election to choose a permanent replacement.
Section 3, Clause 2: Classes of senators and vacancies
- Immediately after they shall be assembled in Consequence of the first Election, they shall be divided as equally as may be
into three classes. The Seats of the Senators of the first Class shall be vacated at the Expiration of the second Year, of the
second Class at the Expiration of the fourth Year, and of the third Class at the Expiration of the sixth Year, so that one third
may be chosen every second Year, and if Vacancies happen by Resignation or otherwise, during the Recess of the Legislature of any
State, the Executive thereof may make temporary Appointments until the next Meeting of the Legislature, which shall then fill
such Vacancies.
Clause 2 was designed to ensure that there would never be a period of time when the Senate could not assemble for a session,
and would permit the gradual alteration of the Senate along political lines parallel to that of the House of Representatives.
As originally established, Senators were elected by the Legislature of the State they represented in the Senate. If a senator
died, resigned, or was expelled, the legislature of the state would appoint a replacement to serve out the remainder of the
senator's term. If the legislature was not in session, the governor could appoint a temporary replacement to serve until the
legislature could elect a permanent replacement.
This was all changed by Clauses 2 and 3 of the Seventeenth Amendment:
- Amendment 17, Clause 2. When vacancies happen in the representation of any State in the Senate, the executive authority of
each State shall issue writs of election to fill such vacancies: Provided That the legislature of any State may empower the
executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may
direct.
- Amendment 17, Clause 3. This amendment shall not be so construed as to affect the election or term of any Senator chosen
before it becomes valid as part of the Constitution.
This set of changes addressed the issue of the change to Popular Election of Senators, and leaves it up to the State
Legislature whether or not the Vacancies will be filled by Election. Often, when a married Senator dies in office, the spouse of
the deceased Senator is appointed to fill out the deceased Senator's term. This usually places that spouse first in line in any
primary election or caucus to fill that seat at the
next Senate elections.
Section 3, Clause 3: Qualifications
- No Person shall be a Senator who shall not have attained to the Age of thirty Years, and been nine Years a Citizen of the
United States, and who shall not, when elected, be an Inhabitant of that State for which he shall be chosen.
This means that a Senator need not be a natural-born citizen (as the President and Vice President must be), although it is
rare for naturalized citizens to be elected Senators. However, a Senator must be at least 30 years of age, must be a citizen of
the United States for at least nine years prior to winning election, and must reside in the State he/she will represent at the
time of winning election.
Section 3, Clause 4: Vice President as presiding official
- The Vice President of the United States shall be President of the Senate, but shall have no vote, unless they be equally
divided.
Section Three provides that the Vice President is to serve as
President of the Senate, although in practice, neither the Vice President nor the full-time President pro tempore of the Senate preside over the body's
sessions; instead, the President pro tempore typically deputizes a junior member of the assembly to fill the role. As a
non-member of the assembly, the Vice President has no vote unless the Senate is equally divided, in which case the Vice President
has what is called a casting vote.
- Further information: U.S. Vice Presidents'
tie-breaking votes
Section 3, Clause 5: President pro tempore and other Senate officers
- The Senate shall choose their other Officers, and also a President pro tempore, in the absence of the Vice President, or
when he shall exercise the Office of the President of the United States.
The Senate may elect a President pro tempore
to act in the Vice President's absence. Although the Constitutional text seems to suggest to the contrary, the Senate's practice
has been to elect a full-time President pro tempore at the beginning of each Congress, as opposed to making it a temporary
office only existing during the Vice President's absence. The President pro tempore is by convention a senator, though
there is no such constitutional requirement.
Other Senate officers include the chairs of the various committees, the Secretary, Sergeant
at Arms, Chaplain, Parliamentarian, Curator, Historian,
and Librarian.
Section 3, Clause 6: Impeachment trials
- The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or
Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted
without the Concurrence of two thirds of the Members present.
The Senate is granted the sole power to try impeachments, just as the House of Lords could try impeachments in
Great Britain. The senators must sit on oath or affirmation, unlike the lords
who voted upon their honor. The Chief Justice presides whenever the
President is tried, presumably because the Vice President would have a conflict of interest. A two-thirds supermajority is
required to convict.
Section 3, Clause 7: Impeachment judgments
- Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and
enjoy any Office of honor, Trust or Profit under the United States; but the Party convicted shall nevertheless be liable and
subject to Indictment, Trial, Judgment and Punishment, according to Law.
If any officer is convicted on impeachment, he or she is immediately removed from office. The Senate also may disqualify the
defendant from holding any public office in the future. No other punishments may be inflicted, but the impeached party remains
liable to trial and punishment in the courts.
Section 4: Elections and meetings
Section Four provides for the selection of members of Congress, and for their meetings:
- Section 4: The times, places and manner of holding elections for Senators and Representatives, shall be prescribed
in each state by the legislature thereof; but the Congress may at any time by law make or alter such regulations, except as to
the places of choosing Senators.
- The Congress shall assemble at least once in every year, and such meeting shall be on the first Monday in December, unless
they shall by law appoint a different day.
While states may regulate the "times, places and manner" of holding Congressional elections, the Congress may make or amend
regulations, except for those relating to the place of choosing Senators (as the state legislatures originally elected Senators).
Congress is therefore permitted to establish a single uniform date for
Congressional elections. Congress designated the first Tuesday following the first Monday in November. The wording was adopted so
as to preclude November 1—the Roman Catholic holiday, All
Saints' Day—from being the date of the election.
Furthermore, Section Four requires that Congress must assemble at least once each year. The meeting was to be on the first
Monday in December unless otherwise provided by law. Elections were held in November, and the Representatives and Senators sworn
in in March. The December session between those two months, therefore, was not of the newly elected Congress; rather, it was of
the "lame duck" Congress. While the Constitution grants Congress the authority to
meet on a different day without the need to pass an amendment, nevertheless the Twentieth Amendment adjusted Congressional terms and requires the
newly elected Representatives and Senators to meet and take office on January 3 of the year
following the election (again, Congress may change the date of meeting by law).
Each House has the power to judge the elections and qualifications of its own members. Quorums, Open voting
records and adjournment are also provided in Section 5:
- Section 5: Each House shall be the judge of the elections, returns and qualifications of its own members, and a
majority of each shall constitute a quorum to do business; but a smaller number may adjourn from day to day, and may be
authorized to compel the attendance of absent members, in such manner, and under such penalties as each House may
provide.
- Each House may determine the rules of its proceedings, punish its members for disorderly behavior, and, with the
concurrence of two thirds, expel a member.
- Each House shall keep a journal of its proceedings, and from time to time publish the same, excepting such parts as may in
their judgment require secrecy; and the yeas and nays of the members of either House on any question shall, at the desire of one
fifth of those present, be entered on the journal.
- Neither House nor the senate, during the session of Congress, shall, without the consent of the other, adjourn for more
than three days, nor to any other place than that in which the two Houses shall be sitting.
Qualifications of members: Sometimes, unqualified individuals have been admitted to Congress. For instance, the Senate
once admitted John Henry Eaton, a twenty-eight-year-old, in 1818 (actually, the admission was
inadvertent, as Eaton's birth date was unclear at the time). In 1934, a twenty-nine-year-old, Rush Holt, was elected to the
Senate; he agreed to wait six months, until his thirtieth birthday, to take the oath. The Senate ruled in that case that the age
requirement applied as of the date of the taking of the oath, not the date of election.
Quorum: Section Five requires that a majority of each House constitutes a quorum to do
business; a smaller number may adjourn the House or compel the attendance of absent
members. In practice, the quorum requirement is all but ignored. A quorum is assumed to be present unless a quorum call,
requested by a member, proves otherwise. Rarely do members ask for quorum calls to demonstrate the absence of a quorum; more
often, they use the quorum call as a delaying tactic.
Rules: Each House can determine its own Rules (assuming a quorum is present), and may punish any of its members. A
two-thirds vote is necessary to expel a member. Each House must keep and publish a Journal, though it may choose to keep any part
of the Journal secret. The decisions of the House—not the words spoken during debates—are recorded in the Journal; if one-fifth
of those present (assuming a quorum is present) request it, the votes of the members on a particular question must also be
entered.
Adjournment: Neither House may adjourn, without the consent of the other, for more than three days. Often, a House will
hold pro forma sessions every three days; such sessions are merely held to fulfill the constitutional requirement, and not
to actually conduct business. Furthermore, neither House may meet in any place other than that designated for both Houses
(the Capitol), without the consent of the other House.
Section 6: Compensation, privilege, restriction on holding civil office
- Section 6: The Senators and Representatives shall receive a compensation for their services, to be ascertained by
law, and paid out of the treasury of the United States. They shall in all cases, except treason, felony and breach of the peace,
be privileged from arrest during their attendance at the session of their respective Houses, and in going to and returning from
the same; and for any speech or debate in either House, they shall not be questioned in any other place.
- No Senator or Representative shall, during the time for which he was elected, be appointed to any civil office under the
authority of the United States, which shall have been created, or the emoluments whereof shall have been increased during such
time: and no person holding any office under the United States, shall be a member of either House during his continuance in
office.
Senators and Representatives set their own compensation. Under the Twenty-seventh Amendment, any change in their compensation
will not take effect until after the next congressional election.
Members of both Houses have certain privileges, based on those enjoyed by the members of the British Parliament (see
parliamentary privilege). Members attending, going to or returning from either
House are privileged from arrest, except for treason, felony or
breach of the peace. Their speeches may not be questioned in any place outside
Congress; thus, one may not sue a Senator or Representative for slander occurring during Congressional debate.
Senators and Representatives cannot resign to take newly created or higher-paying political positions; rather, they must wait
until the conclusion of the term for which they were elected. If Congress increases the salary of a particular officer, it may
later reduce that salary to permit an individual to resign from Congress and take that position. The effects of the clause were
discussed in 1937, when Senator Hugo Black was appointed an Associate Justice of the Supreme Court with some time left
in his Senate term. Just prior to the appointment, Congress had increased the pension available to Justices retiring at the age
of seventy. It was therefore suggested by some that the office's emolument had been increased during Black's Senatorial term, and
that therefore Black could not take office as a Justice. The response, however, was that Black was fifty-one years old, and would
not receive the increased pension until at least nineteen years later, long after his Senate term had expired.
On May 20, 2006, as part of an ongoing bribery investigation,
Congressman William J. Jefferson's offices were raided by the FBI, "believed to be the first-ever FBI raid on a Congressional office",[1] raising concerns that it could "set a dangerous precedent that
could be used by future administrations to intimidate or harass a supposedly coequal branch of the government".[2]
Section Seven, sometimes referred to as the Presentment Clause, establishes the
method of making Acts of Congress:
- Section 7: 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.
- Every bill which shall have passed the House of Representatives and the Senate, shall, before it become a law, be
presented to the President of the United States; if he approve he shall sign it, but if not he shall return it, with his
objections to that House in which it shall have originated, who shall enter the objections at large on their journal, and proceed
to reconsider it. If after such reconsideration two thirds of that House shall agree to pass the bill, it shall be sent, together
with the objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House,
it shall become a law. But in all such cases the votes of both Houses shall be determined by yeas and nays, and the names of the
persons voting for and against the bill shall be entered on the journal of each House respectively. If any bill shall not be
returned by the President within ten days (Sundays excepted) after it shall have been presented to him, the same shall be a law,
in like manner as if he had signed it, unless the Congress by their adjournment prevent its return, in which case it shall not be
a law.
- Every order, resolution, or vote to which the concurrence of the Senate and House of Representatives may be necessary
(except on a question of adjournment) shall be presented to the President of the United States; and before the same shall take
effect, shall be approved by him, or being disapproved by him, shall be repassed by two thirds of the Senate and House of
Representatives, according to the rules and limitations prescribed in the case of a bill.
A bill may originate in either House of Congress, except that a revenue bill, under the Constitution, may originate in only
the House of Representatives. The House has claimed that it alone may originate appropriation bills as well, but the Senate
opposes this claim. Whenever the Senate sends an appropriation bill to the House, the House merely returns it to the Senate,
thereby settling the question in practice. Either House may amend any bill, including revenue and appropriation bills.
Before a bill becomes law, it must be presented to the President, who has ten days (excluding Sundays) to act upon it. If the
President signs the bill, it becomes law. If he disapproves of the bill, he must return it to the House in which it originated
together with his objections. This procedure has become known as the veto, although that particular
word does not appear in the text of Article One. The bill does not then become law unless both Houses, by two-thirds votes,
override the veto. If the President neither signs nor returns the bill within the ten-day limit, the bill becomes law, unless the
Congress has adjourned in the meantime, thereby preventing the President from returning the bill to the House in which it
originated. In the latter case, the President, by taking no action on the bill towards the end of a session, exercises a
"pocket veto", which Congress may not override.
What exactly constitutes an adjournment for the purposes of the pocket veto has been unclear. In the Pocket Veto Case (1929), the Supreme Court held that "the determinative question in reference to an
'adjournment' is not whether it is a final adjournment of Congress or an interim adjournment, such as an adjournment of the first
session, but whether it is one that 'prevents' the President from returning the bill to the House in which it originated within
the time allowed." Since neither House of Congress was in session, the President could not return the bill to one of them,
thereby permitting the use of the pocket veto. In Wright v. United States (1938), however,
the Court ruled that adjournments of one House only did not constitute an adjournment of Congress required for a pocket veto. In
such cases, the Secretary or Clerk of the House in question was ruled competent to receive the bill.
In 1996, Congress passed the Line Item Veto Act, which permitted the
President, at the time of the signing of the bill, to rescind certain expenditures. The Congress could disapprove the
cancellation and reinstate the funds. The President could veto the disapproval, but the Congress, by a two-thirds vote in each
House, could override the veto. The Supreme Court found the Line Item Veto Act unconstitutional because it violated the
Presentment clause in the case Clinton v. City of New York. First,
the procedure delegated legislative powers to the President, thereby violating the nondelegation doctrine. Second, the procedure
violated the terms of Section Seven, which state, "if he approve [the bill] he shall sign it, but if not he shall return it."
There are only two options available, under the clause, to the President: he is not authorized to amend the bill and then sign
it.
Every bill, order, resolution, or vote that must be passed by both Houses, except on a question of adjournment, must be
presented to the President before becoming law. However, to propose a constitutional amendment, two-thirds of both Houses may
submit it to the states for the ratification, without any consideration by the President, as prescribed in Article V.
The procedure for lawmaking is based on that used in the British Parliament, where the consent of the House of Commons, the
House of Lords and the Sovereign was originally required for the enactment of any legislation; there was no way in which the
Sovereign's refusal to grant Royal Assent could be overcome. The power to withhold Assent
has not been used in Great Britain or the United Kingdom since 1707, but the veto power has been frequently used by American
Presidents. George Washington (the first President) used the regular veto;
James Madison was the first to use the pocket veto.
Some Presidents have made very extensive use of the veto, while others have not used it at all. Grover Cleveland, for instance, vetoed over four hundred bills during his first term in office;
Congress overrode only two of those vetoes. Meanwhile, seven Presidents have never used the veto power. There have been 2553
vetoes, including pocket vetoes.[1]
Section 8: Powers of Congress
Enumerated powers
-
Congress's powers are enumerated in Section Eight:
- Section 8: The Congress shall have 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; but all duties, imposts and excises shall be uniform throughout the United States;
- To borrow money on the credit of the United States;
- To regulate commerce with foreign nations, and among the several states, and with
the Indian tribes;
- To establish a uniform rule of naturalization, and uniform laws on the subject of
bankruptcies throughout the United States;
- To coin money, regulate the value thereof, and of foreign coin, and fix the
standard of weights and measures;
- To provide for the punishment of counterfeiting the securities and current coin
of the United States;
- To establish post offices and post roads;
- To promote the progress of science and useful arts, by securing for limited times to authors and inventors the
exclusive right to their respective writings and discoveries;
- To constitute tribunals inferior to the Supreme
Court;
- To define and punish piracies and felonies committed on the high seas, and offenses against the law of
nations;
- To declare war, grant letters of marque and
reprisal, and make rules concerning captures on land and water;
- To raise and support armies, but no appropriation of money to that use shall
be for a longer term than two years;
- To provide and maintain a navy;
- To make rules for the government and regulation of the land and naval forces;
- To provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel
invasions;
- To provide for organizing, arming, and disciplining, the militia, and for governing such part of them as may be employed
in the service of the United States, reserving to the states respectively, the appointment of the officers, and the authority of
training the militia according to the discipline prescribed by Congress;
- To exercise exclusive legislation in all cases whatsoever, over such District
(not exceeding ten miles square) as may, by cession of particular states, and the acceptance of Congress, become the seat of the
government of the United States, and to exercise like authority over all places purchased by the consent of the legislature of
the state in which the same shall be, for the erection of forts, magazines, arsenals, dockyards, and other needful
buildings;—And
- To make all laws 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.
Many powers of Congress have been interpreted broadly. Most notably, the General Welfare, Interstate Commerce, and Necessary
and Proper Clauses have been deemed to grant expansive powers to Congress.
Congress may lay and collect taxes for the "common defense" or "general welfare" of the United States. The U.S. Supreme Court
has not often defined "general welfare", leaving the political question to Congress. In United States v. Butler (1936), the Court for the first time construed the clause. The
dispute centered on a tax collected from processors of agricultural products such as meat; the funds raised by the tax were not
paid into the general funds of the treasury, but were rather specially earmarked for farmers. The Court struck down the tax,
ruling that the general welfare clause related only to "matters of national, as distinguished from local, welfare". Congress
continues to make expansive use of the General Welfare Clause; for instance,
the social security program is authorized under the General Welfare Clause.
Congress is permitted to borrow money on the credit of the United States. In 1871, when deciding Knox v. Lee, the Court ruled that this clause permitted Congress to emit bills and make them legal tender
in satisfaction of debts. Whenever Congress borrows money, it is obligated to repay the sum as stipulated in the original
agreement. In Perry v. United States (1935), the Court invalidated a law seeking to
rescind a clause whereby creditors could demand payment in gold coin.
Commerce Clause
-
The Supreme Court has seldom restrained the use of the commerce clause for
widely varying purposes. The first important commerce clause-related decision was Gibbons
v. Ogden, decided by a unanimous Court in 1824. The case involved conflicting federal and state laws; Thomas Gibbons, had a federal permit to navigate steamboats in the Hudson River, while the other, Aaron Ogden, had a monopoly to do the
same granted by the state of New York. Ogden contended that "commerce" included only buying and selling of goods and not their
transportation. Chief Justice John Marshall rejected this notion. Marshall suggested that
"commerce" included navigation of goods, and that it "must have been contemplated" by the Framers. Marshall added that Congress's
power over commerce "is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations other than are
prescribed in the Constitution."
Chief Justice John Marshall established a broad interpretation of the Commerce Clause.
The expansive interpretation of the Commerce Clause was restrained during the late nineteenth and early twentieth centuries,
when a laissez-faire attitude dominated the Court. In United States v. E. C. Knight Company (1895), the Supreme Court limited the
newly-enacted Sherman Antitrust Act, which had sought to break up the monopolies
dominating the nation's economy. The Court ruled that Congress could not regulate the manufacture of goods, even if they were
later shipped to other states. Chief Justice Melville Fuller wrote, "commerce succeeds to manufacture, and is not a part of
it."
The U.S. Supreme Court sometimes ruled New Deal programs unconstitutional on the grounds
that they stretched the meaning of the commerce clause. In Schechter Poultry Corp. v. United States, (1935) the Court unanimously
struck down industrial codes regulating the slaughter of poultry, declaring that Congress could not regulate commerce relating to
the poultry, which had "come to a permanent rest within the State." As Chief Justice Charles Evans Hughes put it, "so far as the poultry here in question is concerned, the flow of
interstate commerce has ceased." Judicial rulings against attempted use of Congress's Commerce Clause powers continued during the
1930s.
It was only in 1937 that the Supreme Court gave up the laissez-faire doctrine as it decided a landmark case,
National Labor Relations Board v.
Jones & Laughlin Steel Company. The legislation in question, the National Labor Relations Act, prevented employers from engaging in "unfair labor practices" such as firing workers for joining unions. The Court ruled to sustain the Act's provisions. The Court, returning to the theories propounded by
John Marshall, ruled that Congress could pass laws regulating actions that even indirectly influenced interstate commerce.
Further decisions expanded the Congress's powers under the commerce clause. This dramatic change in the Court's thinking was
brought about by FDR's Court Packing scheme.
In the 1990s, the Court acted to restrain Congress's exercise of its power to regulate commerce. In United States v. Lopez, the Court found that Congress could not exercise "Police power" reserved to the States by use of the Commerce Clause.
Other powers of Congress
Congress may establish uniform laws relating to naturalization and bankruptcy. It may also coin money, regulate the value of American or foreign currency and punish
counterfeiters. Congress may fix the standards of weights and measures. Furthermore, Congress may establish post offices and post
roads (the roads, however, need not be exclusively for the conveyance of mail). Congress may promote the progress of science and
useful arts by granting copyrights and patents. Clause eight, section eight of Article One is the only instance of the word "right" used in the entire
constitution document.[3] Though perpetual copyrights and
patents are prohibited, the Supreme Court has ruled in Eldred v. Ashcroft
(2003) that repeated extensions to the term of copyright do not constitute perpetual copyright; also note that this is the only
power granted where the means to accomplish its stated purpose is specifically provided for. Courts inferior to the Supreme Court
may be established by Congress.
Congress has several powers related to war and the armed forces. Under the War Powers
Clause, only Congress may declare war, but in several cases it has, without declaring war, granted the President the
authority to engage in military conflicts. Five wars have been declared in American history: the War of 1812, the Mexican-American War, the Spanish-American War, World War I and World War II. Some historians argue that the legal doctrines and legislation passed during the operations
against Pancho Villa constitute a sixth declaration of war. Congress may grant
letters of marque and reprisal. Congress may
establish and support the armed forces, but no appropriation may be made for the support of the army may be used for more than
two years. This provision was inserted because the Framers feared the establishment of a standing army, beyond civilian control,
during peacetime. Congress may regulate or call forth the state militias, but the states retain the authority to appoint officers
and train personnel. Congress also has exclusive power to make rules and regulations governing the land and naval forces.
Although the executive branch and the Pentagon have asserted an ever-increasing measure of involvement in this process, the U.S.
Supreme Court has often reaffirmed Congress' exclusive hold on this power (e.g. Burns v. Wilson, 346 U.S. 137 (1953)). Congress
used this power twice soon after World War II with the enactment of two statutes: the Uniform Code of Military Justice to improve the quality and fairness of courts martial
and military justice, and the Federal Tort Claims Act which among other rights
had allowed military service persons to sue for damages until the U.S. Supreme Court repealed that section of the statute in a
divisive series of cases, known collectively as the Feres Doctrine.
Congress has the exclusive right to legislate "in all cases whatsoever" for the nation's capital, the District of Columbia. Congress may also exercise such jurisdiction over land purchased from the states
for the erection of forts and other buildings.
Necessary and Proper clause
-
Finally, Congress has the power to do whatever is "necessary and proper" to carry out its enumerated powers and, crucially,
all others vested in it. Thus, Congress may establish a system whereby those who violate laws are punished though the
Constitution explicitly provides for the punishment of only those who violate counterfeiting or maritime laws. The necessary and
proper clause, however, has been interpreted extremely broadly, thereby giving Congress wide latitude in legislation. The first
landmark case involving the clause was McCulloch v. Maryland (1819), which
involved the establishment of a national bank. Alexander Hamilton, in advocating the creation of the bank, argued that there was "a more or less
direct" relationship between the bank and "the powers of collecting taxes, borrowing money, regulating trade between the states,
and raising and maintaining fleets and navies." Thomas Jefferson countered that
Congress's powers "can all be carried into execution without a national bank. A bank therefore is not necessary, and consequently
not authorized by this phrase." Chief Justice John Marshall agreed with the former interpretation. Marshall wrote that a
Constitution listing all of Congress' powers "would partake of a prolixity of a legal code and could scarcely be embraced
by the human mind." Since the Constitution could not possibly enumerate the "minor ingredients" of the powers of Congress,
Marshall "deduced" that Congress had the authority to establish a bank from the "great outlines" of the general welfare, commerce
and other clauses. Under this interpretation of the necessary and proper clause, Congress has sweepingly broad powers (known as
implied powers) not explicitly enumerated in the Constitution.
Section 9: Limits on Congress
The next section of Article One provided limits on Congress's powers:
- Section 9:The migration or importation of such persons as any of the states now existing shall think proper to
admit, shall not be prohibited by the Congress prior to the year one thousand eight hundred and
eight, but a tax or duty may be imposed on such importation, not exceeding ten dollars for each person.
- The privilege of the writ of habeas corpus shall not
be suspended, unless when in cases of rebellion or invasion the public safety may require it.
- No bill of attainder or ex post facto
Law shall be passed.
- No capitation, or other direct, tax shall be laid,
unless in proportion to the census or enumeration herein before directed to be taken.
- No tax or duty shall be laid on articles exported from any state.
- No preference shall be given by any regulation of commerce or revenue to the ports of one state over those of another: nor
shall vessels bound to, or from, one state, be obliged to enter, clear or pay duties in another.
- No money shall be drawn from the treasury, but in consequence of appropriations made by law; and a regular statement and
account of receipts and expenditures of all public money shall be published from time to time.
- No title of nobility shall be granted by the United States: and no person holding any office of profit or trust under
them, shall, without the consent of the Congress, accept of any present, emolument, office, or title, of any kind whatever, from
any king, prince, or foreign state.
Although the international slave trade was allowed until 1808, Congress prohibited
it on January 1, 1808, the first day it was permitted to do so.
Until 1808, however, the Constitution permitted Congress to levy a maximum duty of ten dollars per slave imported into the United
States.
A writ of habeas corpus is an order to a law enforcement agency or other body that has a person in custody to let a
court inquire into the legality of his or her detention. The court may order the person released if the reason for detention is
deemed insufficient or unjustifiable. The Constitution further provides that the privilege of the writ of habeas corpus
may not be suspended except during rebellion or invasion. In Ex parte Milligan
(1866), the Supreme Court held that the privilege of the writ could not be suspended while the civilian courts remained
operational.
A bill of attainder is a law in which a person is immediately convicted without trial. An ex post facto law applies to
something that took place before the law was passed, or was not illegal at the time it took place.
Section Nine reiterates the provision from Section Two that direct taxes must be
apportioned on the basis of state populations. Furthermore, no tax may be imposed on exports from any state. Congress may not, by
revenue or commerce legislation, give preference to ports of one state over those of another; neither may it require ships from
one state to pay duties in another. All funds belonging to the Treasury may not be withdrawn except in accordance with law.
Modern practice is that Congress annually passes a number of appropriation bills authorizing the expenditure of public money. The
Constitution requires that a regular statement of such expenditures be published.
Congress may not grant any title of nobility. No civil officer may, without the consent of
Congress, accept any emolument, office or title from a foreign ruler or state.
Section 10: Limits on the states
The final section of Article One outlines the limits on the powers of the states:
- Section 10: No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any
Bill of Attainder, ex post facto Law, or Law
impairing the Obligation of Contracts, or grant any Title of Nobility.
- No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be
absolutely necessary for executing its inspection Laws: and the net Produce of all Duties and Imposts, laid by any State on
Imports or Exports, shall be for the Use of the Treasury of the United States; and all such Laws shall be subject to the Revision
and Controul of the Congress.
- No State shall, without the Consent of Congress, lay any duty of Tonnage, keep Troops, or Ships of War in time of Peace,
enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in
such imminent Danger as will not admit of delay.
States may not exercise some powers reserved for the federal government; they may not enter into treaties, alliances or
confederations, grant letters of marque or reprisal, coin money or issue bills of credit (such as currency). Furthermore, no
state may make anything (such as Federal Reserve Notes) but gold and silver coin a tender in payment of debts. The states may not
pass bills of attainder, ex post facto laws, impair the obligation of contracts or grant titles of nobility.
The Contract Clause was, in the nineteenth century, the subject of much contentious
litigation. It was first interpreted by the Supreme Court in 1810, when Fletcher v.
Peck was decided. The case involved the Yazoo land scandal, in which the
Georgia legislature authorized the sale of land to speculators at low prices. The
bribery involved in the passage of the authorizing legislation was so blatant that a Georgia mob attempted to lynch the corrupt
members of the legislature. Following elections, the legislature passed a law that rescinded the contracts granted by the corrupt
legislators. The validity of the annulment of the sale was questioned in the Supreme Court. In writing for a unanimous court,
Chief Justice John Marshall asked, "What is a contract?" His answer was: "a compact between two or more parties." Marshall argued
that the sale of land by the Georgia legislature, though fraught with corruption, was a valid "contract". He added that the state
had no right to annul the purchase of the land, since doing so would impair the obligations of contract.
The definition of a contract propounded by Chief Justice Marshall was not as simple as it may seem. In 1819, the Court
considered whether or not a corporate charter could be construed as a contract. The case of Trustees of Dartmouth College v. Woodward involved Dartmouth College, which had been established under a Royal Charter granted by King George III. The Charter created a board of twelve trustees for the governance of the
College. In 1815, however, New Hampshire passed a law increasing the board's membership to
twenty-one so that public control could be exercised over the College. Marshall and the Court ruled that New Hampshire could not
amend the charter, which was ruled to be a contract since it conferred "vested rights" on the trustees.
Another dispute determined by the Marshall Court was Sturges v.
Crowninshield. The case involved a debt that was contracted in early 1811. Later in that year, the state of New York
passed a bankruptcy law, under which the debt was later discharged. The Supreme Court ruled that a retroactively applied state
bankruptcy law impaired the obligation to pay the debt, and therefore violated the Constitution. In Ogden v. Saunders (1827), however, the court decided that state bankruptcy laws could apply to
debts contracted after the passage of the law. State legislation on the issue of bankruptcy and debtor relief has not been much
of an issue since the adoption of a comprehensive federal bankruptcy law in 1898.
Still more powers are prohibited of the states. States may not, without the consent of Congress, tax imports or exports except
for the fulfillment of state inspection laws (which may be revised by Congress). The net revenue of the tax is paid not to the
state, but to the federal Treasury.
States may not, without the consent of Congress, keep troops or armies during times of peace. They may not enter into
alliances nor compacts with foreign states, nor engage in war unless invaded. States may, however, organize and arm a militia.
Currently this function is fulfilled, with Federal oversight, by the National
Guard.
See also
References
- ^ Rollcall news
- ^ New York
Times article
- ^ Novak, M. (1996). The fire of invention, the fuel of interest: On
intellectual property. Washington D.C.: The American Enterprise Institute Press.
- Irons, P. (1999). A People's History of the Supreme Court. New York: Penguin.
External links
Listen to this article (3 parts) · (info)
This audio file was created from an article revision
dated 2007-01-31, and may not reflect subsequent edits to the article. (Audio help)
More spoken articles
