Saturday, September 17, 2016

Congress controls the purse strings, and has power to declare war



"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."

Article 1, Section 1 of the Constitution


United States Capitol, the building where the Congress meets

The Congress is divided into two houses

The division of the legislature is one of the most important "balances" in the Constitution; because like the British Parliament it was modeled on, the legislative body of the United States is divided into two separate houses - analogous to the "House of Lords" and the "House of Commons" in British parliamentary government. This "bicameral" (or two-house) legislature is a big part of the reason why the Congress's power is as limited as it is, because it is sufficiently divided among multiple members to make it hard for any one "special interest" to gain control of it. (More on how each one is elected here, and how representation is determined here; if you seek further information on the subject.) The Constitution also says that a smaller number of members from each house "may be authorized to compel the attendance of absent members, in such manner, and under such penalties as each House may provide." (Source: Article 1, Section 5, Paragraph 1) The Constitution even says that "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." (Source: Article 1, Section 5, Paragraph 2) Both houses thus have some power to keep their affairs in order.


Parliament of Great Britain, the model for the U. S. Congress



Powers of the Congress (such as declaring war)

In an attempt to reduce confusion about how much power is granted to the Congress, the Constitution actually listed explicitly some of the powers thus granted (Source: Article 1, Section 8, which has 18 clauses in it), and listed a few others that were forbidden just as explicitly - such as how "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." (Source: Article 1, Section 9, Paragraph 2) A "writ of habeas corpus" is just a document saying that the government can't hold people in prison indefinitely, unless they first charge them with a crime, and soon after bring them to trial in the court system. The Constitution thus says here that this privilege may not be suspended, "unless when in cases of rebellion or invasion the public safety may require it" - an exception that is not often made in the United States. Of the powers that are granted, two of them are so important that I cannot leave them out of this post: the power to tax, and the power to "declare war" (Source: Article 1, Section 8, Paragraph 11) - a check upon the power of the executive to wage war without popular support, because it requires the president to get the financing for any such wars through Congress (and Congress alone), and to have its declaration that it is legal for him (or her) to be out there waging these wars in the first place.


Headquarters of the United States Department of the Treasury (which administers the IRS)

Taxation: Congress's most important single power

Even in peacetime, however, the power to tax is one of the most important powers of the Congress; since the executive branch is totally dependent upon the legislature for all funding, and often cannot operate without it. This was actually one of the most important improvements that the Constitution made over its most immediate predecessor, since the "Articles of Confederation" did not have any compulsory taxing power at all, and thus had a government that was perpetually devoid of revenue - perhaps the most important single reason for adopting the Constitution to begin with. In one of the most important "balances" of the Constitution, a notable clause added that "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." (Source: Article 1, Section 7, Paragraph 1)


Headquarters of the Internal Revenue Service (or "IRS"), the tax collecting agency of the United States

The debate over "implied powers" centers around both the commerce clause ...

The Constitution also said that the Congress shall have the power to "regulate commerce with foreign nations, and among the several states, and with the Indian tribes." (Source: Article 1, Section 8, Paragraph 3) This was another improvement that the Constitution made over its most immediate predecessor, since the "Articles of Confederation" had no power to regulate trade, causing a certain amount of chaos between the thirteen states over trade policies. Since that time, the Congress has actually claimed a number of other powers in the name of "regulating interstate commerce" under this clause, arguing that these powers are "implied" by the provisions of the clause. Whether or not one agrees with this interpretation, it has tended to fare reasonably well in the court system; so the commerce clause has often been an abundant source of "implied" powers for the Congress (and the federal government generally).

... and the "necessary and proper" clause

But the Constitution's explicit list of powers actually ended with an even more sweeping clause than this one, which was the clause known to us as the "necessary and proper" clause. It was placed at the end of the Constitution's explicit list of powers, and said that the Congress shall have the power 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." (Source: Article 1, Section 8, Paragraph 18) The vagueness about what is "necessary and proper" - and specifically, over who would have the important power to decide what is "necessary and proper" - was seen by the people of this time as a major weakness in the Constitution, and created a certain amount of mistrust in a number of the Constitution's opponents.

Alexander Hamilton commented on the latter of these two clauses in the Federalist Papers ...

In the Federalist Papers, Alexander Hamilton responded to this charge by saying that "a power to lay and collect taxes must be a power to pass all laws necessary and proper for the execution of that power; and what does the unfortunate and calumniated provision in question do more than declare the same truth, to wit, that the national legislature, to whom the power of laying and collecting taxes had been previously given, might, in the execution of that power, pass all laws necessary and proper to carry it into effect?" (Source: Federalist No. 33) He then observed that "I have applied these observations thus particularly to the power of taxation, because it is the immediate subject under consideration, and because it is the most important of the authorities proposed to be conferred upon the Union. But the same process will lead to the same result, in relation to all other powers declared in the Constitution. And it is expressly to execute these powers that the sweeping clause, as it has been affectedly called, authorizes the national legislature to pass all necessary and proper laws. If there is any thing exceptionable, it must be sought for in the specific powers upon which the general declaration is predicated. The declaration itself, though it may be chargeable with tautology or redundancy, is at least perfectly harmless." (Source: Federalist No. 33) In other words, Hamilton argued, if Congress doesn't have those powers "necessary and proper" to carry its power of taxation into effect (or any other power, for that matter), then it doesn't really have this power of taxation (or any of these other powers) at all - something which would be injurious to the Union, when a government needs steady revenue to operate. Thus, Hamilton concluded, the "necessary and proper" clause is not the "threat to liberty" that its opponents made it out to be, but is at the most merely redundant.


Independence Hall

... and so did James Madison

James Madison later added another argument to this in his own defense of the "necessary and proper" clause, when he said in the Federalist Papers that "without the substance of this power, the whole Constitution would be a dead letter." (Source: Federalist No. 44) We can't anticipate what powers the government might need at a future time, Madison argued; so we can't limit Congress only to those powers expressly delegated, or we'd never have any real authority in the government at all. This kind of limitation to powers "expressly delegated" was the mistake of the Constitution's predecessor, Madison said later, and "the new Congress would be continually exposed, as their predecessors have been, to the alternative of construing the term 'expressly' with so much rigor, as to disarm the government of all real authority whatever, or with so much latitude as to destroy altogether the force of the restriction." (Source: Federalist No. 44)

What powers are "not delegated" to the federal government? (The debate continues ... )

Madison later authored ten amendments to the Constitution which became the United States Bill of Rights; and one of them in particular - namely, the Tenth Amendment - has some relevance to this subject. The Tenth Amendment later said that "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." (Source: Tenth Amendment) An earlier version of this amendment had included the wording of "expressly delegated" (rather than just "delegated"), which would have denied the Congress any implied powers at all. This version of the amendment was defeated, however, and so the wording today simply says "delegated" (rather than "expressly delegated"). This is significant when you consider that the Constitution's predecessor (the "Articles of Confederation") had actually included the word "expressly" in its phrase "expressly delegated," and so the Constitution was a clear departure from its predecessor in this respect. Nonetheless, the Tenth Amendment sets some real limits on the power of the federal government even without this critical word. In practice, it leaves it to the courts to decide whether particular powers are implied by the sweeping provisions of the "necessary and proper" clause, or whether they are denied by the later limits of the Tenth Amendment. Frequently, they have tended to side with the Congress in these matters; and when the "necessary and proper" clause is combined with the commerce clause, the powers delegated to the federal government are numerous. The courts have considered many a power to be "necessary and proper" for the Congress to regulate "interstate commerce," and so the debates over this issue are still ongoing.


Capitol Dome, on the building of the United States Congress

A majority of both houses constitutes a "quorum to do business" ...

As these clauses make clear, the Congress has a great deal of power given it by the Constitution; but the very parts of the Constitution detailing the process by which it may make these important laws also specify one of the major "checks" (or restraints) upon this power, which is the presidential "veto." The word "veto" is never used in the Constitution itself, but the process is described explicitly in some of the most important passages of the Constitution, and allows the executive branch (specifically, the president) some important power to "check" the excesses of the legislature. Under most conditions, the Constitution says that "a majority of each [house] shall constitute a quorum to do business; but a smaller number may adjourn from day to day" (Source: Article 1, Section 5, Paragraph 1). With that said, here are the relevant portions:


United States Capitol building

... unless the president vetoes it, which means that the necessary votes would go up to two-thirds

"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." (Source: Article 1, Section 7, Paragraph 2)


Capitol Dome at night

What if the president doesn't respond at all? (The Constitution's answer)

The paragraph continues:

"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." (Source: Article 1, Section 7, Paragraph 2)

The presidential veto applies to all bills, orders, resolutions, and votes (except adjournment)

And finally:

"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 re-passed by two-thirds of the Senate and House of Representatives, according to the rules and limitations prescribed in the case of a bill." (Source: Article 1, Section 7, Paragraph 3)

The veto is an important check

Thus the Constitution has some important checks on the law-making power of the Congress.

Footnote to this blog post:

The Constitution says that "The Congress shall have the 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; but all duties, imposts and excises shall be uniform throughout the United States." (Source: Article 1, Section 8, Heading and Paragraph 1) The Constitution also empowers the Congress to "borrow money on the credit of the United States," which is another important power (Source: Article 1, Section 8, Paragraph 2). In the Federalist Papers, Alexander Hamilton commented that "This power over the purse may, in fact, be regarded as the most complete and effectual weapon with which any constitution can arm the immediate representatives of the people, for obtaining a redress of every grievance, and for carrying into effect every just and salutary measure." (Source: Federalist No. 58)

If you liked this post, you might also like:

How each house of Congress is elected

How representation in Congress is determined

The executive branch: A varied assortment of agencies led by one president

The judicial branch: The power of the courts (and its limits)

The Constitution: The "supreme law of the land" (which is difficult to amend)

Part of a series about
The Constitution

Influences on the Constitution

Hobbes and Locke: Anarchy, social contract theory, and unalienable rights
Public and private property: When can you take away someone's private property as taxes?
Polybius: A commentator on the "mixed constitution" of the Roman Republic
Magna Carta (1215): The creation of Parliament, and the limits upon the power of the King
Sir Edward Coke: The Petition of Right (1628) and other important writings
Virginia Declaration of Rights (1776): Another influence on the United States Bill of Rights
The Declaration of Independence (July 4, 1776): Philosophically important
Representative government: The advantages of a republic over a direct democracy
Baron de Montesquieu: Theory of separation of powers and checks & balances

The Constitution itself, and the story behind it

Convention at Philadelphia: The writing of the Constitution (1787)
States' rights: The conflict between the "several states" and the federal government
The Congress: Its power to make laws, and the president's power to veto them (in some cases)
Congress versus the president: Five limits on presidential power (besides impeachment)
Powers of Congress: A few reasons why the Congressional elections are so important
Elected officials: A few ways that the Constitution keeps our politicians under control
Frequency of elections: So how long do all of these people serve, anyway?
Representation: So who decides how many votes each state gets?
Slavery: The complicated legacy of the "Three-Fifths Clause"
The presidency: Making decisions for the police, military, and foreign diplomacy
Impeachment and removal: The most dramatic checks upon the power of presidents
The courts: "Good behaviour," some important judicial powers, and how they're appointed
Miscellaneous: Amendment process, "supreme law of the land," and some closing remarks

Debates over the Constitution, then and since

Debates over ratification: Whether to adopt the Constitution in the first place
The "Federalist Papers": Frequently asked questions about them, and why they're important
Who is "Publius"?: The secret pen name of the men who wrote the Federalist Papers
Debates over checks & balances: Do they actually conflict with separation of powers?
The Bill of Rights: Important in the debates over ratification (adopted 1791)
The First Amendment: Debates over freedom of religion, and public "establishment" of religion
The First Amendment: Freedom of speech, freedom of the press, and peaceable assemblies
The Second Amendment: Constitutional debates on the people's right to bear arms
Rights to fair trial: Judicial restraints on the power of the police and the president
Rights of the accused: The balance between individual protections and criminal justice
Congressional pay: The amendment that never made it into the Bill of Rights
Abolishing slavery: The things that led up to the famous antislavery amendment
Backup plans: Vacancy, disability, and presidential elections without a clear majority
Voting rights: Some important amendments about who is allowed to vote in this country

Epilogue: Some thoughts about civics education

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