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

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

Origination Clause

 

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

The Origination clause allows the House of Representatives to introduce any bills that have to do with revenue. Revenue means money collected by a government (as taxes).

The Founder’s intention in making the decisions for taxes and collection of revenue to come from the House was that the Representatives are the closest to the people who elected them. They should be the most aware of the needs of the people. They would also then be directly accountable to the people for any unpopular taxes.

James Madison

As James Madison wrote in Federalist 58:
“The House of Representatives cannot only refuse, but they alone can propose the supplies requisite for the support of the government…. 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.”

Some scholars feel that the fact that the Senate can make proposals for changes to these bills weakens the power of this function of the House.

The Senate in recent times has developed a procedure known as “gut-and-amend”. In this procedure, the Senate removes the content of the bill that was proposed and sometimes keeps the title. In this way, the content of the bill has come from the Senate instead of from the House. The content could have come via the Senate from appointees of the Executive branch (i.e. the Treasury Department).

An example of a bill that was put through “gut-and-amend” in the Senate was the Affordable Care Act, otherwise known as “Obamacare”.

Chief Justice John Roberts

Chief Justice John Roberts, in his opinion June 28, 2012 as to the constitutionality of the bill, opined that the mandate to purchase health insurance is indeed a tax.

“Such an analysis suggests that the shared responsibility payment may for constitutional purposes be considered a tax. The payment is not so high that there is really no choice but to buy health insurance; the payment is not limited to willful violations, as penalties for unlawful acts often are; and the payment is collected solely by the IRS through the normal means of taxation. Cf. Bailey v. Drexel Furniture Co., 259 U. S. 20, 36–37. None of this is to say that payment is not intended to induce the purchase of health insurance. But the mandate need not be read to declare that failing to do so is unlawful. Neither the Affordable Care Act nor any other law attaches negative legal consequences to not buying health insurance, beyond requiring a payment to the IRS. And Congress’s choice of language—stating that individuals “shall” obtain insurance or pay a “penalty”—does not require reading §5000A as punishing unlawful conduct. It may also be read as imposing a tax on those who go without insurance.”

There is a group called the Pacific Legal Foundation who is filing a lawsuit against the government over the Affordable Care Act saying that since the mandate is a tax, then the bill should have originated in the House and thus it is unconstitutional.

Please see the articles below for further information on the lawsuit based on the Origination Clause.

http://www.washingtontimes.com/news/2013/mar/31/obamacare-lawsuit-over-health-care-tax-will-test-c/?page=1

http://www.humanevents.com/2013/04/02/the-lawsuit-that-might-kill-obamacare/

Under Article 1, Section 7, Clause 1, we the people gave the House of Representatives the authority to originate bills to raise money via taxes. The House of Representatives have the closest connection to the people.

The benefit to we the people is that we can hold our Representative accountable and either continue their office in the House, or remove them if we feel they are not handling taxation as we think they should.

References:

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

http://www.heritage.org

http://www.wikipedia.com

Webster’s Dictionary

President and President Pro Tempore of the Senate

President of the Senate

“The Vice President of the United States shall be President of the Senate, but shall have no Vote, unless they be equally divided.” US Constitution, Article 1, Section 3, Clause 4

The Constitution only gives one specific obligation to the Vice President. The Vice President is the President of the Senate. At present, the Vice President usually presides over the Senate only when a tie vote is anticipated. Since the Vice President is a non-member of the Senate, the only vote he may cast is a tie-breaking vote. During normal Senate business, the President pro tempore, who is a Senator selected to the position by the members of the Senate, presides when the Vice President is absent. The role of the President of the Senate is different from the Speaker of the House, who is a member of the House of Representatives and may participate in debate and voting. The Speaker usually doesn’t vote unless it is to cause a tie or break a tie, but can vote on any issue.

The current President of the Senate is Vice President Joseph Biden.

Joseph Biden, Vice President of the United States

We the people give the Vice President a post as President of the Senate and give him opportunity to keep informed about the issues and concerns of the nation.

The benefit to us is that we get a person as President of the Senate who has been elected by the people.

President Pro Tempore of the Senate

“The Senate shall choose their other Officers, and also a President pro tempore, in Absence of the Vice President, or when he shall exercise the Office of the President of the United States.” US Constitution, Article 1, Section 3, Clause 5

I have put the discussion of the role of the President pro tempore in the same post as the President of the Senate, since the two roles are closely related.

The President pro tempore presides over the Senate in the absence of the Vice President. “Pro tempore” means “for the time being”. As of law passed in 1947, the President pro tempore is next in line for Presidential succession following the Speaker of the House.

The President pro tempore is an elected member of the Senate and as such may speak and vote as any Senator. Initially, the President pro tempore was chosen for his personal characteristics, popularity, and reliability. Since the 1950’s, it has been traditional that the senior member of the majority party in the Senate is elected as the President pro tempore. The modern-day President pro tempore will ask new members of the majority party to preside over the Senate so that they can learn more about the rules and procedures of the Senate.

Additional law allows for the President pro tempore to make appointments to national commissions, usually with advice of the majority leader. The President pro tempore may also administer oaths required by the Constitution, sign legislation, and other obligations of the presiding officer. The President pro tempore may not vote to break a tie in the Senate.

The current President pro tempore of the 113th Congress is Patrick Leahy (D, VT).

Patrick Leahy, President Pro Tempore of US Senate (D, VT)

To see a complete list of those who have served as President pro tempore of the US Senate, please see: http://www.senate.gov/artandhistory/history/common/briefing/President_Pro_Tempore.htm

We the people give the Senate the power to select the person to serve as President of the Senate in the absence of the Vice President and to be third in line for secession to the Presidency.

We the people get continuity in leadership and a leader who is knowledgeable of the rules and procedures of the Senate, who has been elected by the people.

“We should also answer the central question of public service. Why are we here? What do we believe in? Well for one thing, we’re here to see that government continues to serve the people and not the other way around. Yes, government should do all that is necessary, but only that which is necessary.” Ronald Reagan, Address accepting the Republican presidential nomination, Dallas, TX, August 23, 1984.

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

US Constitution

http://www.senate.gov