Enumerated Powers of Congress

“Government has an inborn tendency to grow. And, left to itself, it will grow beyond the control of the people. Only constant complaint by the people will inhibit its growth.”

Ronald Reagan, Address to the Comstock Club, Sacramento, August 6. 1973

Section 8 of Article 1 of the US Constitution assigns certain functions and powers to the Congress. This Section is commonly known as the Enumeration of Powers. Because this Section gives a list of the enumerated powers, I will cover some of the concepts needed to understand how the power structure works in the Congress. You may want to refer back to this post as we look at all the powers on the enumerated list.

Political power, within the concept of federalism, was divided between the two levels of government. The national government was to have limited and enumerated powers. The powers not given to the national government remained with the states as reserved power. Additionally, the national power was divided between the three branches of government with a system of checks and balances in place.

According to Dr. James McClellan in his book, Liberty, Order, and Justice, the powers of Congress can be classified as:

1. Enumerated or delegated – listed. The word delegated means that some of these were powers assigned by the states to the federal government.

2. Implied – expressed indirectly. This is done with the use of the “Necessary and Proper Clause”, which is also in Section 8. I will discuss it in a later post. This clause expands the enumerated powers of Congress. An example would be since Congress has the power to regulate interstate commerce, then it could make a law regulating shipping of materials from one state to another.

3. Prohibited – forbidden by authority

4. Inherited – powers inherited from the British Parliament and earlier state constitutions. (As in Article 1, Section 5, which is modeled after British Parliament with some important changes)

Following along with Dr. McClellan, the powers can be further divided into exclusive and concurrent. Exclusive means belonging only to the Congress (the power to declare war). Concurrent powers are powers shared with the Executive Branch or with the States. (Congress shares with the President the power to make war. It shares income tax power with the States.)

Alexander Hamilton, James Madison, John Jay – authors of the Federalist Papers

James Madison strongly believed in the importance of reserving as much power as possible to the States and to the people (we the people). Writing as Publius in Federalist 45, he writes:
“The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former (federal powers) will be exercised principally on external objects as war, peace, negotiation, and foreign commerce… The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.”

Overall, in Article 1, Section 8, we the people empower Congress with certain specified powers so that they can govern effectually.

The benefit to we the people is that we have a Congress strong enough to make decisions and govern, while at the same time limiting the powers of Congress by reserving numerous powers to the States and to the people.

In the next post, I will discuss Article 1, Section 8, beginning with Clause 1 to point out the benefits of the first principles in your life.

God bless you!

References:

Findlay, Bruce Allyn and Findlay, Esther Blair. Your Rugged Constitution. Stanford: Stanford University Press, 1950

Hannaford, Peter. The Quotable Ronald Reagan. Washington, DC: Regnery Press, 1998

McClellan, James. Liberty, Order, and Justice. Indianapolis, Liberty Fund, Inc., 2000

Skousen, W. Cleon. The 5000 Year Leap. National Center for Constitutional Studies, 2006

Making Resolutions

 

“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.” Article 1, Section 7, Clause 3, US Constitution

According to Webster’s Dictionary, a resolution can be defined as “a statement of the feelings, wishes, or decisions of a group”. Another definition is “something decided on”.

According to Findlay’s Your Rugged Constitution, the Presentment of Resolutions Clause acts as a “governor”. A governor is a part of a machine that keeps the machine from going too fast. This presidential veto power prevents the Congress from too hasty action.

This clause is telling us that any order, resolution, or vote, which occurs in the Congress, must come to the President’s desk for approval. If he would not approve, he could send it back to the Congress where it would be debated again and put forward for another vote, this time requiring a two-thirds majority of each House to pass.

According to Heritage Foundation’s David F. Forte, Professor of Law, Cleveland-Marshall College of Law, there are three types of resolutions in Congress. This clause applies to those resolutions that, if passed, would result in law.

The threes types of resolutions are joint resolutions, concurrent resolutions, and simple resolutions.

Joint Resolutions need to be presented to the President because they are intended to have the force of a law. An example would be declaration of war. Joint resolutions usually cover a single topic.

An exception would be a Constitutional Amendment. This would require a joint resolution, but under Article 5 of the Constitution, the amendment would go the states, where it would have to be approved by three-fourths of the state legislatures of the several states. There is no presidential involvement in a Constitutional Amendment.

Concurrent Resolutions are those that deal with procedural issues. These would be issues such as deciding when to adjourn, expressing the “sense of Congress” on public policy topics, or setting goals dealing with monetary funds. These are not “law” and do not have to be presented to the president.

Simple Resolutions apply to operations of a single House of Congress. These would concern things like imposing censure on a member, setting spending limits on a committee, or expressing the viewpoint of one House on an issue. Obviously, these resolutions do not have to be presented to the president.

With Article 1, Section 7, Clause 3, we the people give the President the responsibility of signing other measures in addition to bills that have passed both Houses of Congress.

The benefit to we the people is that we have in place another important part of the checks and balances in the federal government. Additionally, having the President sign these documents slows the process thus prevent hasty decisions by Congress.

References:

Findlay, Bruce Allyn and Findlay, Esther Blair. Your Rugged Constitution. Stanford: Stanford University Press, 1950

http://www.heritage.org

Webster’s Dictionary

How Does a Bill Become a Law?

I’m Just a Bill by kilroyart.deviantart.com

“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.”  Article 1, Section 7, Clause 2

This is a rather long clause in the document.  This clause is called the Presentment Clause.  Apparently, the Founders wanted to spell out the details of this process so there would be few questions of their intention.

When a bill is presented in one of the Houses of Congress, it must pass that House and then be sent to the other house for another vote.  You may hear the term “bicameral” in speaking of the two houses.  This means that we have two houses involved in the legislative process.  If only one House was involved, the term used would be “unicameral”.

Following both Houses passing legislation, the bill goes to the President for his signature.  If he signs it, it becomes law.  If he does not sign it, he must return it to the House where it originated with his objections.  This information is to be entered into the Journal for that House.  If he does not sign the bill but returns it, this is known as a veto, although the word “veto” is not in the document.

The Congress may then reconsider the bill.  If it passes the House where it originated by a 2/3’s vote; it can then be sent to the other House where it will be reconsidered.  If it passes that House by a 2/3’s vote, it would become law.  These votes must be cast as “yeas or Nays” and the names of those voting for and against must be entered into the Journal.

If the President does not return the bill to either House within 10 days (not counting Sundays) then the bill would become law.

The very last phrase of this clause is what we commonly call the “Pocket Veto”.  This happens when the President holds the bill (puts it in his pocket), and Congress adjourns, thus preventing him from returning the bill.  The Congress has by its adjournment prevented the President from returning it.  That bill will not become law.  This phrase is known as the Pocket Veto Clause.

According to David Forte, Professor of Law, Cleveland-Marshall College of Law, there are three types of adjournments that the Congress can do:

1. Sine die – This is when Congress ends and the newly elected Congress will start a session.
2. Intersession – This is adjournment between two sessions of the same Congress.
3. Intra-session – This is when Congress takes a break within a session.

Much has been written and litigated about these different types of adjournment and whether or not certain pocket vetoes are valid.  It seems that the courts have generally upheld that a pocket veto can occur in any of these situations.   Today, when a President does a pocket veto, he does it with a “protective return” in case there is a question in the courts at a later date.

We the people give the President the right to approve or disapprove all bills.  We give the Congress the responsibility of coming up with a 2/3’s vote to override a Presidential veto.

The benefit to us is that we have checks and balances between both Houses of Congress and the executive.  This also prevents hasty action be either Congress or the Executive branch.

This is a video that will sum up this process for you:

References:

Findlay, Bruce Allyn and Findlay, Esther Blair. Your Rugged Constitution. Stanford: Stanford University Press, 1950

www.wikipedia.com

www.heritage.org

Separation of Powers

Separation of powers means that each branch of government (Legislative, Executive, Judicial) has its own responsibilities, and it may not interfere with the other branches except as indicated by the Constitution.

This is a fundamental concept to preserving liberty. It is the natural flow of things that each branch would try to usurp the power of the other branches.

In order to keep the system intact, there are checks and balances built into the system. These help to prevent usurping of or abusive administration of the power that each branch has been granted by the people.

The concepts of separation of power and checks and balances were new ideas to the people in 1787. The people were not immediately convinced that these ideas would work. James Madison, John Jay, and Alexander Hamilton wrote a series of essays to explain the new document to the people. There are a total of 85 essays. They are grouped for us today into a book called The Federalist Papers. James Madison wrote 5 papers just to explain separation of powers. (Federalist 47 – 51)

The current system of checks and balances is sophisticated. It is as follows:
• The House of Representatives checks the Senate in that no statute can become a law without the approval of the House.
• The Senate checks the House in that no statute can become a law without the approval of the Senate.
• The Executive can veto any law before they decide to sign it.
• The Congress can pass a bill that the President has vetoed if they have a 2/3’s majority vote in both the House and the Senate.
• The Congress has an additional control on the Executive because it controls the funding for the Executive branch.
• The President must have approval of the Senate when filling important offices in the Executive branch. (i.e. appointment of a Secretary in the Cabinet).
• The President must have approval of the Senate before signing treaties with foreign countries.
• Congress can investigate the Executive branch to see whether funds are being used appropriately and that the laws are enforced.
• The Judiciary has a check on Congress by its authority to review laws and give its opinion on the constitutionality of that law.
• Congress has restraining power over the Judiciary by having the constitutional authority to restrict its jurisdiction.
• The President has a check on the judicial branch by having the power to nominate new judges, who are subject to the approval of the Senate.
• The Congress has restraining power over the judicial branch because it controls the funding for the operation of the federal court system.
• The Congress, by joint resolution, can terminate certain powers of the President (such as war powers) without the Executive’s consent.

There have been times in history when one branch or another has violated the restrictions of the Constitution’s separation of powers. The violations have generally been handled peacefully. For over 200 years, this system has been able to stand when challenged.

In contrast to this, there are other nations who said that they copied the US Constitution, but they failed to incorporate the system of checks and balances. In those countries, the elected presidents have suspended the constitution but remained in charge of the military. They will use the force of the military to stay in power. The only recourse the people have to attempt to reclaim their rights is to resort to violence.

Over the last 50 or so years, there has been a gradual erosion of some of the system of checks and balances in the US with the addition of many government agencies and a tremendous increase in the bureaucracy. This has allowed for blurring of the clear lines of power and responsibility that were initially established. This can become dangerous to our liberty. Examples are administrative law, legislating from the bench, and over-use of Executive orders. I will discuss these examples in a future entry.

To solve problems by a peaceful means is the primary purpose of the US Constitution. When we have the will to follow the rule of law, the result is favorable to our ability to enjoy life, liberty, and the pursuit of happiness.

References:

Findlay, Bruce Allyn and Findlay, Esther Blair. Your Rugged Constitution. Stanford: Stanford University Press, 1950

Skousen, W. Cleon. The 5000-Year Leap. National Center for Constitutional Studies, 2006

The Congress

“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.” US Constitution, Article 1, Section 1

The federal government is designed to have three branches:
• Legislative – to make law
• Executive – to enforce and carry out the law
• Judicial – to interpret the law

Because of the concept of “consent of the governed”, the power of lawmaking belongs to the people, not to the Congress. The people have agreed to the Constitution; and, because of this agreement, Congress can only make laws that are in alignment with the Constitution.

All the legislative power is assigned to the Congress (“congress” is a term used to denote both the Senate and the House of Representatives). Others, such as the Executive branch or government agencies, can recommend or present suggestions for laws, but only Congress can make them. This is an example of the separation of powers that is built into the Constitution. Each branch has its own responsibilities, and it may not interfere with the work of the other branches except as indicated in the Constitution.

So we have given Congress authority to make laws for the country. We have also given them instruction that there will always be two separate divisions in the Congress (Senate and House of Representatives).

The benefit to us (“we the people”) is that we get laws that are developed by people we have elected to represent us. We have control of that Senator or Representative in that we have voted them into office, and we can vote them out again. Additionally, we have the two divisions of Congress, each of which has a system of checks on the other.

Over the years since the Constitution was written, Congress has given up some of its authority by allowing power to go to government agencies. I will discuss the concept of separation of powers and administrative law in my next blog.

Reference:
Findlay, Bruce Allyn and Findlay, Esther Blair. Your Rugged Constitution. Stanford: Stanford University Press, 1950