Congress 

The Congress is One of Three Co-Equal Branches of the Federal Government

  • The Congress (also known as the Legislative Branch) is one of three co-equal branches of the federal government, along with the presidency (also known as the Executive Branch) and the Supreme Court (also known as the Judicial Branch). 

Congress Consists of Two Chambers (Art.I, § 1)

  • Congress consists of two separate chambers: the House of Representatives and the Senate.

The House of Representatives (Art.I, § 2; The Permanent Apportionment Act of 1929)

  • Members of the House serve two-year terms with elections being held every even numbered year (i.e. 2018, 2020, 2022, etc).​

  • The number of representatives a state has depends on the size of its population, but every state has at least one. 

  • The Permanent Apportionment Act of 1929 fixed the total number of Representatives in the country at 435. 

  • The Act also mandated that the number of representatives a state has shall be recalculated every 10 years on the basis of changes in the populations of the 50 states. 

  • However, the capping of the total number of representatives in the country at 435 combined with the divergent rates of population growth in the 50 states has created malapportionment of representation in the House.

  • To understand why, consider the following example.

  • The state of Wyoming had an estimated 2017 population of 579,315. These 579,315 people (i.e. the state of Wyoming) had the minimum of one representative, as it is a relatively low population state.

  • On the other hand, California had an estimated 2017 population of 39,536,653 people and had 53 representatives.

  • Doing the math reveals that California had 1 representative for every 745,974.5 residents whereas Wyoming had 1 representative for every 579,315 residents.

  • This means that residents of Wyoming are relatively over-represented in the House while residents of California are relatively under-represented. Or, put another way, the policy preferences and interests of one resident of Wyoming hold more sway in the House than the interests of one resident of California.​

  • This relative under-representation of residents of some states relative to others has led some legal scholars to propose increasing the number of representatives in the House.

The Senate (Art. I, § 3)

  • ​Senators serve six-year terms.

  • Every state has two senators (since there are currently 50 states, the Senate currently consists of 100 senators).

  • If a vote on new legislation being considered results in a tie, the Vice President of the United States shall cast the tie-breaking vote.

  • That every state has 2 senators, regardless of the size of its population, has been the subject of debate.

  • To see why, consider the following example. The state of Wyoming had an estimated 2017 population of 579,315. These 579,315 people (i.e. the state of Wyoming) had 2 senators.

  • The state of California had an estimated 2017 population of 39,536,653 people, many times larger than that of Wyoming.

  • Yet these 39,536,653 people also had 2 senators.

  • Some have argued that this arrangement distorts democracy because it enables the opinions of 579,315 people located in one state to count for as much in the Senate as those of 39,536,653 people located in another state.

Creating New Legislation (Art. I, § 7, cl. 2; Art. I, § 7, cl. 3; Clinton v. City of New York)

  • ​The Presentment Clause of the Constitution (Art. I, § 7, cl. 2) states that Congress alone has the authority to create new legislation. 

  • Once Congress passes a bill, it is sent to the president. If the president approves of the bill s/he will sign it into law. If the president does not want the bill to become law, then s/he can refuse to sign it.

  • When a president chooses not to sign a bill that has been passed by Congress, it is said that the president has "vetoed" the bill. At that point, the Congress can either over-ride the president's veto, if 2/3 of the members of both the House and Senate support the bill or the bill dies.

  • Note that when a bill that has been approved by Congress is sent to the president, the president either accepts the bill in its entirety and signs it into law, or vetoes the bill in its entirety. In Clinton v New York (1998), the Supreme Court ruled it unconstitutional for a president to issue "line-item vetoes" in which s/he rejects certain provisions of a bill while authorizing others. 

Borrowing Power (Art. 1, § 8, cl. 2)

  • Congress alone has the power to authorize the incurring of debt by the federal government.

The Discipline Clause (Art. 1, § 5, cl. 2)

  • The Discipline Clause of the U.S. Constitution allows each chamber of Congress to determine the rules under which it operates, punish Members for wrongdoing, and to expel a Member if deemed appropriate. 

  • However, the Constitution makes no provision for a mechanism of investigating misconduct or enforcing consistent punishments.

  • So the House created the House Committee on Ethics and authorized it to investigate potential violations of any law, rule, or regulation by a Member of the House and to make recommendations to the House for disciplinary action.

  • The Senate's equivalent is its Select Committee on Ethics. 

The Origination Clause (Art. 1, § 7, cl. 1)

  • ​The Origination Clause mandates that all bills which propose to raise revenue must originate in the House.

  • However, it also states that the Senate may propose amendments to revenue bills that originated in the House.

  • The Senate has often used this latter part of the clause to work around the restriction on revenue raising bills originating in the Senate: the senators simply take an existing bill that originated in the House, remove its content, and replace it with their own content. By doing so, senators can claim to be merely amending a bill that originated in the House. Such bills are called "shell bills."

The Foreign Emoluments Clause (Art. 1, § 9, cl. 8)

  • ​The Foreign Emoluments Clause states that members of the national government shall not receive gifts or payments from a foreign government without the permission of Congress.​

  • The architects of the Constitution included this clause because of their concern that foreign states and monarchs could try to bribe American policymakers, particularly diplomats stationed overseas.

  • However, uncertainty remains over exactly what counts as an “emolument.”

  • For example, does the clause apply only to payments and gifts given directly to a public official or does it also apply to payments made to a business owned by a public official?

  • One could certainly argue that payments by a foreign state to a business owned an American public official may sway her/his decision-making. However, the clause makes no explicit mention of payments to businesses being forbidden, leaving the question unanswered.

  • Several lawsuits have recently been filed against Pres. Trump alleging that he is currently in violation of the clause for accepting such payments to his businesses.

  • The outcomes of these suits may clarify the scope of the Foreign Emoluments Clause.

Impeachment (Art. I, § 2, cl. 5; Art. I, § 3, cl. 6; Art. I, § 3, cl. 7; Art. II, § 2; Art. II, § 4)

  • ​The House of Representatives alone has the power to impeach the president, vice president, or a Supreme Court justice. 

  • If the House chooses to impeach the president, the Senate then tries the president and can, with the support of 2/3 of the senators present, remove the president from office.​​

  • The president can be impeached for treason, bribery, or "other high crimes and misdemeanors." 

  • The inclusion of the imprecise phrase "other high crimes and misdemeanors" gives the House significant latitude to determine what constitutes an impeachable offense. 

The Intellectual Property Clause (Art. 1, § 8, cl. 8)

  • ​The Intellectual Property Clause gives Congress the authority to enact legislation related to the protection of intellectual property (e.g. trademarks, copyrights, and patents). 

The Taxing and Spending Clause (Art. I, § 8, cl. 1; U.S. v Butler)

  • ​The Taxing and Spending Clause gives Congress the power to impose taxes for the purpose of paying off debt, paying for defense of the country, and providing for the "general welfare of the United States."

  • How to interpret the phrase "general welfare of the United States" was the subject of fierce debate in early America.

  • James Madison had argued that the phrase is to be interpreted narrowly. For Madison, the clause was a supporting clause meant to enable Congress to tax and spend as necessary to fulfilling its obligations and executing its explicitly enumerated powers under Article I, section 8 of the Constitution.

  • On the other hand, Alexander Hamilton had argued that the phrase should be interpreted literally. That is, Hamilton argued that Congress should have broad discretion to tax and spend for any purpose it sees as advancing the nation’s general welfare; its taxation and spending powers should not be limited to facilitating the discharge of the specific duties listed in section 8.

  • In US v Butler (1936) the Supreme Court sided with Hamilton. 

  • Delivering the high court’s majority opinion, Justice Roberts wrote:

Madison asserted it amounted to no more than a reference to the other powers enumerated in the subsequent clauses of the same section; that …. the grant of power to tax and spend for the general national welfare must be confined to the enumerated legislative fields committed to the Congress. In this view the phrase is mere tautology, for taxation and appropriation are or may be necessary incidents of the exercise of any of the enumerated legislative powers.

Hamilton, on the other hand, maintained the clause confers a power separate and distinct from those later enumerated, is not restricted in meaning by the grant of them, and Congress consequently has a substantive power to tax and to appropriate, limited only by the requirement that it shall be exercised to provide for the general welfare of the United States.

[We] conclude that the [Hamiltonian position] is the correct one. While, therefore, the power to tax is not unlimited, its confines are set in the clause which confers it, and not in those of § 8 which bestow and define the legislative powers of the Congress. It results that the power of Congress to authorize expenditure of public moneys for public purposes is not limited by the direct grants of legislative power found in the Constitution.

  • The Supreme Court thus affirmed that the U.S. Congress has broad freedom to set fiscal policy with the aim of advancing the nation’s general welfare.

  • (This was not the only time Hamilton had successfully argued for a broad reading of the powers granted to Congress by a particular clause of the U.S. Constitution. See the debate over the Bank of the United States and how to interpret the Necessary and Proper Clause.)

The Suspension Clause (Art. 1 § 9, cl. 2)

  • ​​A "writ of habeas corpus" is a tool courts can use to determine if a an individual has been unlawfully imprisoned.

  • The etymology of the phrase is as follows: a "writ" is an order issued by an institution with juridical authority, such as a court. And the latin phrase "habeas corpus" roughly translates to "produce the body." So a "writ of habeaus corpus" is an order (a "writ") by a court to the imprisoning entity to bring before it a particular prisoner ("the body").

  • The right of habeas corpus allows an individual that has been imprisoned to ask a court to determine whether they are being unlawfully detained by filing an application for a writ of habeas corpus.

  • This right has its origins in clause 39 of the Magna Carta ("The Great Charter"), a 13th century document signed by King John of England to make peace with rebel barons.

  • The Suspension Clause of the Constitution (Art. 1 § 9, cl. 2) states that Congress may NOT suspend the privilege of the right of habeas corpus except in the event that a rebellion or invasion poses a threat to public safety.  

  • That is, the clause forbids Congress from infringing on prisoners' right to ask a court to determine if they are being unlawfully detained, except in the event of a rebellion or invasion.

Confirmation of Cabinet Officers, Ambassadors, and Judges of the Supreme Court (Art II, § 2, cl. 2)

  • The president is responsible for nominating ambassadors, cabinet officers, and federal judges (including Supreme Court justices).

  • The nominees must then be approved by the Senate. Approval requires a simple majority of senators present.

International Treaties (Art II, § 2, cl. 2; Art 2, § 1(a) of the Vienna Convention)

The Treaty Clause

  • The “treaty clause” of the U.S. Constitution gives the president the authority to negotiate international treaties.

  • For a treaty negotiated by the president to go into effect, 2/3 of the Senate must approve it.

  • The Senate may approve a treaty negotiated by the president without conditions, approve the treaty with conditions, or reject the treaty.

  • However, the Congressional Research Service (CRS) has reported that there have only been a few instances in which the Senate outright rejected a treaty negotiated by the president.

  • (You can learn about what the Congressional Research Service is and does here.)

  • And in scenarios where the Senate has approved a treaty subject to conditions, presidents and the other party with whom the treaty has been negotiated have generally accepted the attached conditions; rarely have agreed treaties been terminated because of the Senate’s attached conditions.

  • Even after 2/3 of the Senate has approved a treaty, some treaties may require further steps by Congress (i.e. the passage of “implementing legislation”) before going into force.

  • For example, if the treaty involves a transfer of money from the United States to the other party in the treaty, Congress would need to pass legislation authorizing this transfer because only Congress, and not the president, has the authority to borrow, tax, and spend. In this case, the bill allowing the transfer of funds is “implementing legislation.” The implementing legislation would need to go through the standard Congressional legislative process.

  • An example of an important treaty concluded via this Article II procedure is the 1949 North Atlantic Treaty which created the North Atlantic Treaty Organization (NATO).

  • However, not all the international agreements the U.S. has entered have followed the procedure for approval outlined in the treaty clause.

Executive Agreements

  • International agreements have also been concluded via what are known as “executive agreements,” which have not been submitted to the Senate for its advice and consent.

  • These executive agreements, like treaties, are binding under international law.

  • Article 2, Section 1(a) of the Vienna Convention on the Law of Treaties defines a treaty as “an international agreement concluded between states in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation.”

  • Its definition makes no distinction between U.S. executive agreements and treaties negotiated via Article II procedures as outlined in the U.S. constitution; the distinction exists only in American domestic law.

  • There are three types of executive agreements:

1) congressional-executive agreements - executive agreements that Congress authorizes prior to their conclusion or retroactively after their conclusion.

Such agreements require a majority vote in both chambers of Congress.

And undoing congressional-executive agreements also requires the consent of Congress.

The North American Free Trade Agreement (NAFTA) is an example of a congressional-executive agreement: the agreement was negotiated by President George H.W. Bush and then a bill implementing the agreement - the North American Free Trade Agreement Implementation Act - was passed by both chambers of Congress (and signed into law by President Bill Clinton).

An increasingly important type of congressional-executive agreement in today’s era of multi-national trade deals are those that grant the president “trade promotion authority,” also known as “fast-track trade authority.”

Here Congress passes legislation in advance of the president negotiating a trade deal which declares that Congress will grant a yes or no vote on the final deal without seeking to insert amendments and will do so within a short period of time (e.g. 90 days).

This is done to strengthen the president’s negotiating position in trade talks by signaling to the other nations involved that the president has the backing of Congress to carry out these negotiations and that a final Congressional decision on the trade agreement will come quickly.

2) sole-executive agreements – agreements made by the president without the authorization of Congress.

Such agreements do not require Congressional assent to undo.

The Paris climate agreement adopted by President Obama in 2016 is generally considered to be an example of a sole-executive agreement.

Because it was a sole-executive agreement, President Trump was able to unilaterally withdraw the United States from it in 2017, without needing Congressional approval to do so.

(It should be noted that some have argued Obama’s entry into the Paris climate agreement had some properties that made it, not a sole-executive agreement, but a new type of executive agreement altogether.)

3) executive agreements based on an already existing treaty – a treaty negotiated via the Article II procedure may include authorization for the president to conclude executive agreements that flush out the details of the treaty.

  • The CRS has reported that since World War II executive agreements concluded by the U.S. have greatly outnumbered treaties: from 1939 to 2009 the U.S. agreed approximately 16,500 executive agreements compared to only about 1,100 treaties. 

War Powers (Art. I, § 8, cl. 11; Article II, § 2, cl. 1; The War Powers Act)

Declarations of War

  • The U.S. Constitution divides war powers between Congress and the president.

  • The War Powers clause of the Constitution (Art. 1, § 8, cl. 11) gives Congress the power to declare war.​

  • Congress has used its power to declare war 11 times for five different wars. 

  • The first instance was its declaration of war against the British Empire in 1812 which marked the start of the War of 1812.

  • The last time Congress formally declared war was during World War II.

  • On December 8, 1941, Congress resolved to declare war on Japan in response to its attack on Pearl Harbor the day before. This marked America's entry into World War II. You can view the joint resolution declaring war on Japan here.

  • Three days later, Congress would declare war on Germany and Italy. You can view the joint resolution declaring war on Germany here.

  • Then on June 3, 1942, Congress declared war on Bulgaria, Hungary, and Rumania.

  • Congress has not declared war since, despite America's involvement in numerous subsequent conflicts.

  • As discussed by the Congressional Research Service, Congress has instead opted to authorize the use of military force by the president without formally declaring war.

  • Some of these authorizations allowed for the use of force in a specific country while others authorized the use of force in a particular region.

  • Congress has passed legislation authorizing the use of military force in Formosa in 1955, the Middle East in 1957, Lebanon in 1983, Iraq in 1991, and Iraq again in 2002. 

  • In the wake of the 9/11 attacks, one particular authorization used more nebulous language targeting "nations, organizations, or persons."

  • On September 18, 2001, Congress authorized the use of military force "against those nations, organizations, or persons [the president] determines planned, authorized, committed, or aided the terrorist attacks."

Conflicts Between Congress and The Presidency

  • ​Though only Congress can formally declare war, it actually shares war powers with the president.

  • This is because the Commander-in-Chief clause of the U.S. Constitution (Article II, § 2, cl. 1) states that the president is the commander-in-chief of the armed forces.​

  • This division of war powers between the two branches has often led to tensions as to the president's ability to deploy military forces without congressional assent.​

The War Powers Act

  • ​In the wake of the Kennedy, Johnson, and Nixon administrations successively deploying troops to participate in the Vietnam War without Congressional assent, Congress overrode a veto by President Nixon to pass the 1973 War Powers Act.

  • This Act sought to place limits on the president's authority to deploy troops without approval from Congress.

  • It requires the president to inform Congress of any decision to deploy troops within 48 hours of doing so if such deployment occurs in the absence of a Congressional declaration of war and the troops are deployed into hostilities, a situation in which hostilities appear imminent, in a foreign nation while equipped for combat (except if the deployment is for logistical or training purposes), or in numbers which "substantially enlarge" the number of troops already deployed in a foreign nation that are equipped for combat.  

  • It also requires the president to withdraw troops deployed into hostilities or a situation in which hostilities appear imminent within 60 days if the deployment occurred in the absence of a Congressional declaration of war unless Congress authorizes an extension, has since declared war, or is physically unable to meet because of an attack on the United States. 

  • Presidents that have held office since the passage of this Act have simply disregarded it, arguing that it is an unconstitutional attempt by Congress to limit the war powers granted to the president by the Commander-in-Chief clause.

Ongoing Debate Over War Powers

  • ​The division of war powers between the two branches continues to be a subject of debate. 

  • For example, in late 2017 and early 2018 Congress debated America's role in an ongoing conflict in Yemen in which the U.S. provides intelligence and refueling to a Saudi-led bombing campaign, despite the absence of Congressional approval to do so.   

  • The Obama and Trump administrations argued that they had the authority to allow such indirect involvement in the war without Congressional approval.

  • Some Members of Congress disagreed.

  • So in February 2018 several senators presented a war powers resolution that would have required troops in or "affecting" Yemen to withdraw within 30 days. However, the resolution was voted down in March of 2018.

Treason (Article III, § 3 of the U.S. Constitution; Carlisle v. United States (1872); 18 U.S.C. § 2381, Ex Parte Bollman (1807), Cramer v United States (1945))

  •  Article III, Section 3, of the Constitution – very narrowly – defines treason and gives Congress the authority to determine the punishment for it.

  • It defines treason as “levying War against [the United States], or in adhering to [its] enemies, giving them aid and comfort.”

  • Two important Supreme Court rulings helped flesh out the meaning of this clause.

  • Clarification of the meaning of the first part of this clause – “levying war against [the United States]” – is offered by the Supreme Court’s opinion in Ex Parte Bollman (1807), a case related to former Vice President Aaron Burr’s treason trial for allegedly trying to found his own country west of the United States (yes, this the same Aaron Burr who infamously killed Alexander Hamilton in a duel).  

  • The Court’s opinion stated that “levying war against [the United States]” is to be interpreted literally, not metaphorically. That is, it involves an actual intent to use force against the government. 

  • With respect to the second part of the clause– “adhering to [its] enemies, giving them aid and comfort” - the Supreme Court ruled in Cramer v. United States (1945) that for an act of aiding or providing comfort to a foreign adversary to constitute treason, it must occur during wartime.

  • The very narrow definition of treason that results from these Supreme Court opinions means that many actions which could be considered disloyal do not meet the legal standard for treason: for an act to be treasonous, it must constitute a literal (not metaphorical) act of war against the United States or aid a nation or organization with which the United States is at war.

  • As such, the legal definition of treason is much narrower than the colloquial use of the term which often includes any action seen as being contrary to the interests of the United States. 

  • So, for example, Confederate soldiers who took up arms against the United States during the Civil War would meet the legal standard for treason (although they were ultimately pardoned).

  • Likewise, if an American were to leak government secrets to North Korea, that could constitute a treasonous act because the U.S. is technically still at war with North Korea (the Korean War ended with an armistice but no peace treaty).

  • But leaking secrets to China would not meet the legal definition for treason because, while the Chinese government may be a geopolitical adversary of the United States, the U.S. is not formally at war with China. So when a former CIA officer tried to sell secrets to China in 2017, he was found guilty of espionage, but not treason.

  • Moreover, Article III of the U.S. Constitution stipulates that “No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court.”

  • The requirement that a person can only be found guilty of treason with the testimony of two witnesses was deliberately included to make the task of proving guilt for treason more difficult.

  • The framers of the constitution deliberately defined treason narrowly and made securing a guilty verdict in a treason case difficult because they were worried about the possibility of claims of treason being used as a political weapon; after all, the British crown, from whom the newly formed United States had just broke free, had readily labeled any form of dissent as treason. 

  • Note that criticizing the government, opposing its policies, or leaking government secrets to the press do NOT, in and of themselves, constitute treason.

  • In Cramer v. United States (1945), the Supreme Court affirmed as much stating in the majority opinion that:

“[A] citizen may take actions, which do aid and comfort the enemy—making a speech critical of the government or opposing its measures, profiteering, striking in defense plants or essential work, and the hundred other things which impair our cohesion and diminish our strength but if there is no adherence to the enemy in this, if there is no intent to betray, there is no treason.”

  • In other words, a citizen may oppose the policies of the government, even in a manner which could incidentally benefit the enemy, but this alone is not treason. For it to be a treasonous act, opposition to the government’s policies must be coupled with an intent to betray.

  • So for example, if a citizen speaks out against a war being waged by the U.S. government against another country, this would not constitute treason even though it may incidentally aid the other country (e.g. in propaganda battles) unless the citizen is doing so with the intent to betray.

  • Also of note is that the Supreme Court has ruled that non-U.S. citizens (with the exception of foreign diplomats) who are in the country owe a “temporary allegiance” to the United States for the duration of their stay in the country. They can also therefore be found guilty of treason, despite their foreign citizenship.

  • For example, if a student arrives in the country on a student visa and takes up arms against the United States, he could be found guilty of treason.

  • Article III, Section 3 gives Congress the authority to pass legislation specifying the punishment for treason.

  • Congress has exercised this authority to legislate that a person found guilty of treason shall be sentenced to “death, or [imprisonment for] not less than five years and fined …. not less than $10,000; and shall be incapable of holding any [public] office under the United States.”

The Commerce Clause (Art. I, § 8, cl. 3; U.S. v Lopez; U.S. v Morrison)

  • The Commerce Clause of the Constitution gives Congress the authority to “regulate commerce with foreign nations and among the …. states.”

  • The Supreme Court’s view of the scope of Congress’ authority under this clause has shifted back and forth several times from extremely broad to more specific as the ideological make-up of the high court has changed over the years.

  • Most recently, the Supreme Court has curtailed Congress’ authority to enact regulations under the Commerce Clause.

  • Its ruling in U.S. v. Lopez (1995) interpreted the powers of Congress under the Commerce Clause as being limited to regulating:

1) The places where interstate commerce occurs (e.g. the internet over which goods and services are sold, the highways and waterways over which goods are shipped, and so on).

First, Congress may regulate the use of the channels of interstate commerce.

2) The people or things (e.g. trucks, planes, ships) involved in interstate commerce.

Second, Congress is empowered to regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce.

3)    And activities that have a substantial effect on interstate commerce.

Finally, Congress' commerce authority includes the power to regulate those activities having a substantial relation to interstate commerce. 

  • The Court’s opinion in this case was hugely significant: it was the first time since 1937 that high court had struck down regulatory legislation passed by Congress as exceeding its authority under the Commerce Clause and limited its regulatory powers under the clause as being applicable only if one of these three conditions is met.

  • The ruling ended a multi-decade period during which the high court had taken an expansive view of what Congress could regulate under the auspices of the Commerce Clause.

  • The Court then further curtailed Congress’ authority under the Commerce Clause in its ruling in U.S. v Morrison (2000).

  • The case dealt with legislation Congress had enacted which, among other things, included a provision allowing victims of gender-motivated violence to sue their attackers for financial damages in federal court.

  • The Commerce Clause came into play because Congress had found that gender-motivated violence cost the U.S. economy billions of dollars a year and the provision allowing victims to sue would, Congress held, reduce this annual hit to the economy.

  • As such, the argument ran, Congress was authorized to pass this provision under the Commerce Clause: gender-motivated violence, taken cumulatively, harms the economy and therefore can be regulated under the Commerce Clause.

  • But the high court thought differently.

  • The Supreme Court ruled in U.S. v Morrison (2000) that a distinction must be made between economic and non-economic activities.

  • And it ruled that the Commerce Clause does not permit Congress to regulate non-economic activities (such as gender-motivated violence), even if Congress deems the cumulative effect of such non-economic activities to have a substantial effect on commerce.

  • The regulation of gender-motivated violence was to be left to the states.

  • Thus, taken together, the high court’s rulings in U.S. v. Lopez (1995) and U.S. v Morrison (2000) mean that the Supreme Court currently views the Commerce Clause as authorizing Congress to regulate:

1)    The places where interstate commerce occurs

2)    The people or things involved in interstate commerce and  

3)    Activities that have a substantial effect on interstate commerce.

If an activity has a substantial effect on interstate commerce only when taken cumulatively, Congress may regulate it under the Commerce Clause only if the activity is economic in nature. A non-economic activity that has a cumulative effect on interstate commerce (such as gender-motivated violence) cannot be regulated under the Commerce Clause.

  • The high court has thus narrowed the scope of Congress’ power under the Commerce Clause since 1995.

The Necessary and Proper Clause (Art. I, § 8, cl. 18; McCulloch v. Maryland)

  • The Necessary and Proper Clause of the U.S. Constitution (Art. 1, § 8, cl. 18) gives Congress the authority 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.

  • Perhaps the best way to understand the significance of this clause is by considering its role in one of America’s earliest and most well-known political rivalries: that of Alexander Hamilton and Thomas Jefferson.   

The Bank of the United States

  • By the end of the American Revolutionary War (1775-1783) America’s individual states were deeply indebted, having borrowed heavily to finance the war effort.

  • Moreover, inflation had rendered Continentals - the fiat money issued by the Continental Congress to finance the war - worthless.

  • So Alexander Hamilton, America’s first Treasury Secretary (1789-1795), sought to get the newly formed country’s finances in order.

  • Part of his plan for doing so was to create a national bank which would perform many of the functions of a modern central bank and collect taxes on behalf of the federal government.

  • But his proposal met fierce opposition from a pair of Virginia policy-makers: Secretary of State Thomas Jefferson and Congressman James Madison.

  • In 1791 Congress accepted Hamilton’s proposal for a national bank and passed a bill which, if signed by President George Washington, would grant a 20-year charter for the creation of such a bank.

  • But Jefferson and Madison urged Washington to veto the bill.

  • And Washington was unsure about the constitutionality of Hamilton’s proposal for a national bank because the Constitution does not explicitly grant Congress the authority to create such a bank.

  • Enter the Necessary and Proper Clause and the possibility that it implied that Congress had the authority to create such a bank.

  • Arguing that it implied no such power, Thomas Jefferson provided Washington with his case that creating a national bank would be unconstitutional.

  • He argued that the Necessary and Proper Clause of the US constitution could only be applied when the legislation in question was necessary - not merely if Congress deemed it convenient -  to the execution of Congress' explicitly enumerated powers, and therefore, could not be used to suggest that Congress has the implied power to create a national bank.

  • So Washington sent Hamilton a letter with comments by Secretary of State Thomas Jefferson on why he should veto the bill and gave Hamilton one week to provide his rebuttal.

  • Hamilton spent the next week preparing his thoughts and worked through the night of February 22 drafting his rebuttal, which amounted to almost 15,000 words.

  • His rebuttal argued for a looser reading of the Necessary and Proper clause than Jefferson's.

  • He suggested that reading the clause as only being applicable when the legislation in question was absolutely necessary would be debilitating, restraining the government from fulfilling its duties: in a world of uncertainties, how can we know for sure what is absolutely necessary?

  • And if we accept a looser reading of the Necessary and Proper Clause as being applicable to anything Congress deems useful in the discharge of its duties, then it is implied that Congress can do things – such as creating a national bank – which it deems to be useful to discharge its explicitly stated powers and obligations under the constitution – such as collecting taxes – even if the constitution doesn’t explicitly state that Congress has the authority to create a national bank.

  • In other words, Hamilton had articulated the so-called doctrine of implied powers: the idea that Congress, under the Necessary and Proper Clause, has the authority not only to use the powers explicitly conferred upon it by the Constitution, but also the implied authority to take actions which it deems proper in the discharge of its explicitly enumerated powers.

  • Hamilton’s rebuttal managed to convince Washington of the bank’s constitutionality and Washington signed the bill into law, creating the Bank of the United States (1791-1811).

The Supreme Court Weighs In

  • In 1791 the federal government created a national bank based on Hamilton’s idea that the Necessary and Proper Clause implied that it had the authority to do so.

  • But a formal judgement on the implications of the Necessary and Proper Clause by the one institution that could provide a binding legal opinion, the Supreme Court, would not come until the 19th century.

  • In 1811, with Alexander Hamilton dead - killed in an 1804 duel with then Vice President Aaron Burr - and his Federalist party out of power, the charter for the Bank of the United States was allowed to expire un-renewed.

  • But by 1816, the financial difficulties America experienced during the War of 1812 (1812-1815) had persuaded some Congressmen that it was easier to wage war with a central bank.

  • Moreover, several prominent self-interested businessmen had waged an aggressive lobbying campaign to convince Congress to charter a new national bank in the hopes that such an institution could get a grip on inflation and thereby ensure the profitability of their enterprises.

  • So in 1816, the federal government would charter the Second Bank of the United States.

  • And in the 1819 Supreme Court case McCulloch v. Maryland, the court - presided over by Chief Justice John Marshall -  unanimously ruled that the Second Bank’s charter was constitutional under the doctrine of implied powers, affirming Alexander Hamilton’s argument almost three decades earlier that the Necessary and Proper Clause of the U.S. Constitution allowed Congress to establish the First Bank of the United States.

  • (The charter for the Second Bank of the United States was nevertheless allowed to expire un-renewed in 1836 and the United States would continue without a central bank until the creation of the Federal Reserve in 1913).  

The Doctrine of Implied Powers

  • Considering these early battles over the constitutionality of a federally-chartered national bank reveals the significance of the Necessary and Proper Clause.

  • The doctrine of implied powers, articulated by Hamilton in defense of a Bank of the United States and affirmed by the Supreme Court in its 1819 consideration of the constitutionality of the Second Bank of the United States, states that the Necessary and Proper Clause gives Congress wide-ranging implied powers not explicitly enumerated in the Constitution.

  • The acceptance of the doctrine by the high court means that Congress, under the Necessary and Proper Clause, has the authority not only to use the powers explicitly conferred upon it by the Constitution, but also the implied authority to take actions which it deems proper in the discharge of its explicitly enumerated powers.

  • So, for example, it can establish a national bank, despite not having the authority to do so explicitly conferred upon it by the Constitution, to collect federal taxes, something the Constitution does explicitly state Congress has the authority to do.

  • Or, put another way, the Constitution explicitly grants Congress the authority to levy federal taxes and therefore implicitly grants it the authority to establish a national bank to collect these taxes.

 

Written By: Aiden Singh Published: July 15, 2020