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Reading Essentials and Study Guide

Chapter 6 Congressional Powers
Lesson 1 Constitutional Powers

ESSENTIAL QUESTION
How have the powers of Congress changed over time?

Reading HELPDESK
Academic Vocabulary
major prominent or significant in size, amount, or degree
bond a government security

Content Vocabulary
expressed powers powers directly stated in the Constitution
necessary and proper clause Article I, Section 8, of the Constitution, which gives Congress the
power to make all laws that are necessary and proper for carrying out its duties
implied powers powers the government requires to carry out its expressed constitutional powers
revenue bill a law for raising money
appropriations bill a proposed law to authorize spending money
authorization bill a bill that establishes a program and says how much can be spent on the program
interstate commerce trade among the states
copyright the exclusive right to publish and sell a literary, musical, or artistic work for a specified period
of time
patent the exclusive right of an inventor to manufacture, use, and sell his or her invention for a
specific period, currently 20 years
impeachment the formal accusation of misconduct in office

TAKING NOTES: Key Ideas and Details

CLASSIFYING Classify the powers of Congress as either legislative or nonlegislative.

Legislative Nonlegislative

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ESSENTIAL QUESTION
How have the powers of Congress changed over time?

Article I, Section 8 of the Constitution lists (or enumerates) the powers of Congress. The last
clause is especially interesting, as it says that Congress has the power to enact any laws
“necessary and proper” to carry out the 17 enumerated powers listed in that same section. Decide
whether you think the laws listed below are necessary and proper to carry out congressional
powers. (Use your copy of the Constitution to identify the powers of Congress listed in Article I,
Section 8.)
• A law making certain drugs illegal nationwide
• A law requiring states to lower their speed limits or lose federal highway funds
• A law taking farm properties owned by banks and turning them over to farmers
• A law establishing a new government agency to fight terrorism
• A law requiring people to purchase health insurance if they do not have coverage
• A law banning picketing at the funerals of servicemen and servicewomen killed in action
• A law giving the president the power to veto individual items in spending bills

Constitutional Provisions
Guiding Question What powers of Congress are listed in the Constitution?
The Constitution describes many important principles, but it is not an exact guide. It does not have
answers for all of the questions about how the president and Congress share power. Nearly half of its text
concerns the legislative branch in Article I. This shows that the Framers wanted Congress, the branch that
directly represents the people, to play a central role in American government.
The Constitution describes the legislative powers of Congress in Article I, Section 8, Clauses 1–18.
These expressed powers of Congress are sometimes called the enumerated powers. The last clause
(18) of Section 8 gives Congress power to do whatever is “necessary and proper” to carry out its
enumerated powers. This necessary and proper clause implies that Congress has powers beyond
those named in the first 17 clauses. Because these implied powers have allowed Congress to expand
its role to meet the nation’s needs, the “necessary and proper clause” has often been called the elastic
clause.
Expanding the power of Congress can have many effects, and the Supreme Court has had to settle
conflicts about what is “necessary and proper.” The first major conflict was between people who believed
in “strict construction” and those who believed in “loose construction.” Strict construction says that the
meaning of the Constitution is its basic or original meaning. Loose construction says that the Constitution
has a much broader meaning.
When the Second Bank of the United States was created in 1816, the strict constructionists said that
Congress had no right to establish the Bank. They supported the state of Maryland. It had taxed the bank
notes issued by the Bank. A federal bank teller named James McCulloch then issued notes without
paying the state tax, and Maryland sued. When the state won in state courts, the U.S. government went
to the Supreme Court. In the landmark, or of key importance, case of McCulloch v. Maryland, Chief
Justice John Marshall supported the position of the loose constructionists. He gave a

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Chapter 6 Congressional Powers
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broad interpretation to the “necessary and proper clause.” This decision helped greatly expand the powers
of Congress.
The powers of Congress have limits. One important limit is the Bill of Rights. Article I, Section 9, of the
Constitution also denies certain powers to Congress. One is the writ of habeas corpus. This is a court
order used for a person accused of a crime. That person is taken to a judge. The judge decides whether
the person is being legally held. Congress may not stop using the writ of habeas corpus unless the safety
of the public is threatened by an invasion or a rebellion. Congress also may not pass bills of attainder.
These are laws that decide the guilt of people and punish them without a trial.
Congress is also not allowed to pass ex post facto laws. These are laws that make someone guilty of a
crime for something they did before the law was passed. Article I, Section 9, also denies Congress other
powers, including the power to tax exports.

Reading Progress Check

Contrasting How do the expressed powers and implied powers of Congress differ?

Exploring the Essential Question

Making Generalizations Make a list of the constitutional limits on the power of Congress. Can
you find a common thread among these limits that relates to liberties? Based on this common
thread, state a generalization about why the Framers created a limited government.

Legislative Powers
Guiding Question What are the legislative powers of Congress?
Congress has both legislative, or related to lawmaking, and nonlegislative, or not related to lawmaking,
powers. Nonlegislative powers include the power of the Senate to approve or reject presidential
appointments. Congress has expanded its legislative powers as the nation has grown. The most
important expansion is in its control over the economy. This includes control over taxing, spending, and
regulating interstate commerce.

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The Taxing and Spending Power

The most important power of Congress may be its power to raise taxes and spend money for the general
welfare. This power is found in Article I, Section 8. It is sometimes called “the power of the purse.” This
power allows Congress to affect policy because no government agency can spend money without its
approval. This broad power allows Congress to levy many taxes. For example, taxes on narcotics are
meant to protect public health.
Article I, Section 7, says all bills for raising taxes must start in the House. Revenue bills, or laws for
raising money, start in the House and then go to the Senate. This rule was adopted at the Constitutional
Convention. The states with more people, such as Virginia and Pennsylvania, wanted to have more
influence on taxes than the states with fewer people. Representation in the House was based on
population, so the Founders agreed that tax bills would start in the House.
Appropriations bills are laws that approve the spending of money. The process for making these laws
is not described in the Constitution. Instead, the process has been developed over time. Article I, Section 9,
says only that no money can be taken from the treasury unless a law has been passed to approve it.
Congress uses a two-step process for approving spending. First, it passes an authorization bill. This bill
starts a program and says how much money can be spent on the program. Second, it passes an
appropriation bill. This bill approves the money for the program. Spending requests usually come from the
executive branch. Today, the president sends most spending requests to Congress in the yearly budget
proposal. However, Congress often does not follow the president’s requests when deciding what funds to
approve.
Over the years, Congress has used its power to tax and spend to expand its powers to regulate the
economy. For example, when Congress approves money for state or local governments, it often makes
them follow specific federal rules. Congress can also levy taxes in a way that encourages or discourages
manufacturers to make a product or consumers to buy a product. For example, taxes on gasoline are
meant to discourage its use. Tax breaks to farmers who sell their corn to make ethanol, an alternative fuel,
are meant to encourage the production of ethanol.
Congress also uses its taxing and spending powers to regulate the economy. Reducing income taxes
for individuals may encourage more personal spending and help the economy grow. If Congress is
concerned about the national debt, it may try to reduce federal spending.

Other Money Powers

Under Article I, Congress has other money powers. It has the power to borrow to pay for government
costs. Congress does this in many ways. The most common way is by selling government bonds or notes.
When people buy savings bonds, Treasury bills, or Treasury notes, they are lending the government
money. The government promises to repay them with interest at the end of a certain period of time.
The time period could be from 3 months to 30 years, depending on the type of bond. Foreign governments
also buy U.S. bonds.
The government adds to the national debt when it borrows money to use for costs. The national debt
is the total amount the government owes. This debt was almost $1 trillion in 1980, and in 2013 it was
more than $16 trillion. The Constitution does not limit government borrowing, but Congress tries to set
limits. When the debt goes over the amount that Congress has set, it must vote to raise the amount. That
way the government can continue to borrow to pay its bills.

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As part of Congress’s money powers, the Constitution gives the legislative branch the power to print
money and to regulate its value. All money printed by the federal government is called legal tender.
This means that people must accept it as payment.

The Commerce Power

Article I, Section 8, Clause 3, is called the “commerce clause” of the Constitution. It allows Congress to
regulate foreign commerce. It also allows Congress to regulate interstate commerce, or commerce
among the states. In this clause, the Founders provided one of the broadest powers of government. The
Supreme Court has decided many cases about the meaning of this clause. The Court has given it both
narrow and broad meaning. This clause has given Congress great power to regulate many things since the
Great Depression. The Supreme Court has ruled that the meaning of commerce is much more than the
buying and selling of goods and services.
The first decision on the expansion of the commerce powers happened in 1824 in the landmark
Supreme Court case Gibbons v. Ogden. The American inventor Robert Fulton and his business partner
got a license from the state of New York. This license gave them the right to operate a steamboat and
carry passengers between New York City and Albany, New York. The company then gave Aaron Ogden a
permit to operate a steamboat between the states of New York and New Jersey.
The trouble began when others challenged their business. One businessman, Thomas Gibbons,
started a steamboat line that operated boats between New York and New Jersey. Gibbons had no New
York permit, but he had received a license from the federal government. An angry Ogden sued Gibbons.
The New York state court agreed with Ogden’s position.
Gibbons believed his federal license gave him a solid claim, and he appealed the case in federal
court. He argued that Congress, not New York, had the power to regulate commerce between the
states. New York argued that federal commerce powers covered only the regulation of goods, not water
travel. The Supreme Court disagreed with the state of New York. It said that commerce was
not limited to buying and selling goods, but included all forms of business interaction between people,
including water travel.
Over the years, the Supreme Court has expanded the meaning of commerce even more. Many
activities have been defined as interstate commerce and put under federal control. They include
broadcasting, banking and finance, and air and water pollution.
This broad idea of commerce has allowed Congress to set policy in many areas. For example,
Congress has made businesses that are involved in interstate commerce pay their workers a minimum
wage, or the lowest rate of pay allowed by law. Congress has been able to regulate working conditions
across the nation because almost all businesses deal with other states in some way.
One of the most important uses of the commerce clause has been in the area of civil rights. Congress
used its powers under the commerce clause in the Civil Rights Act of 1964, which made discrimination
illegal in restaurants, hotels, and motels.
Businesses in many southern states refused to respect the new law. A Georgia motel owner refused to
serve African Americans as required by the new law. He claimed that his motel was a local business, so it
did not involve interstate commerce. The Supreme Court disagreed with the motel owner. In Heart of
Atlanta Motel v. United States (1964), the Court ruled that businesses like motels often served travelers
who crossed state boundaries, so those businesses were covered by the commerce clause and had to
serve all Americans.

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The Court clearly supported Congress’s use of the commerce powers when an issue was not only
economic. Since then, the commerce power has been used to support federal laws against organized
crime and other crimes such as arson, or property burning. However, the commerce clause power
has limits.
In a more recent case, President Obama’s new health care program, the Affordable Care Act, was
challenged in court in 2012. The people opposed to it argued that the part of the law requiring people to
buy health insurance was not covered by Congress’s commerce power. The law was upheld in a 5-to-4
vote. However, the deciding vote was not based on the commerce clause. It was based on the power of
Congress to levy taxes.

Exploring The Essential Question

Applying Review each proposed law. Determine whether Congress has the power to make that
law under the commerce clause.
• a law that requires all states to use uniform warning signs and signals for trains; Congress
hopes this law will prevent freight train crashes.

• a law that bans factories that make products that are sold in other states from employing
children under the age of 18; Congress hopes this law will protect children from working too
much.

• a law that prohibits all U.S. farmers who sell vegetables from growing more than 500 pounds
of tomatoes each—even for their own consumption; Congress hopes that this law will boost
falling tomato prices by reducing the number of tomatoes on the market.

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Foreign Policy Powers

Congress shares power with the president to make foreign and national defense policy. Congress has the
power to approve treaties and regulate foreign commerce. It has the power to declare war, create and
maintain an army and navy, and make rules governing them.
Congress usually has let the president take the lead in these areas. The president is commander in
chief and often sends troops on missions around the world without a declaration of war. Congress has
declared war only five times, but the president has used troops in more than 200 conflicts around the
world. Two major conflicts in the twentieth century, in Korea and Vietnam, were fought without a
declaration of war.
The conflict in Vietnam was costly and lost public support over time, so Congress looked closely at how
the United States was drawn into the conflict. It looked at the decisions of President Lyndon Johnson that
led to American troops being sent to Vietnam. Congress decided that the Constitution did not mean for the
president to have this kind of power.
In 1973 Congress passed the War Powers Act after President Richard Nixon had vetoed it. Under this
law, the president must tell Congress within 48 hours about any decision to send troops to another
country. The president must also bring them back in 60 to 90 days unless Congress approves the action.
Since the act passed, both Republican and Democratic presidents have complained that it is
unconstitutional.
Even with the War Powers Act, presidents have sent American troops abroad without a declaration of
war by Congress. Troops were sent to Cambodia in 1975. They were sent to Iran, Lebanon, Grenada,
Libya, the Persian Gulf, and Panama in the 1980s. Troops were sent to the Balkans and Somalia in the
1990s, and to Afghanistan and Iraq in the 2000s. Many of these actions did not last long, but in most
cases the president followed the rules of the War Powers Act.
There are many other examples where the president did not send troops but still used the military
abroad. For example, the United States supported Libyan rebels in 2011 by giving them weapons and
sending air strikes. These were military actions, but it was not clear whether they were acts of war.
President Obama argued that the military actions were not acts of war so he did not need to get approval
from Congress. There is still debate over when the War Powers Act should be used.

Providing for the Nation’s Growth

The Constitution gives Congress power over naturalization. This is the process by which immigrants
become citizens. Under Article IV, Section 3, Congress also has the power to admit new states and
govern any territories. Today, this covers American territories such as Puerto Rico, Guam, the U.S. Virgin
Islands, and other islands. Finally, Article I and Article IV give Congress the power to pass laws to govern
federal property. The Founders were thinking of military bases and government buildings.
Today federal property also includes national parks, historic sites, and public lands.

Other Legislative Powers

Article I, Section 8, Clause 8, gives Congress the power to grant copyrights and patents. A copyright is
the sole right to publish and sell a literary, musical, or artistic work for a certain length of time. Currently
this is the lifetime of the creator plus 70 years. A patent is the sole right of an inventor to make, use, and
sell his or her invention for a certain length of time. Currently this is 20 years. After that, a patent may be
renewed. These rights were meant to protect intellectual property, or ownership of creative products, and
promote creativity, business, and competition.

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Article I, Section 8, grants Congress the power to create a post office and federal courts. Congress has
used its postal power to help fight crime. Using the mail for any illegal act is a federal crime.

Reading Progress Check

Summarizing What are the economic powers of Congress?

Nonlegislative Powers
Guiding Question What are the nonlegislative powers of Congress?
In carrying out their legislative powers, the two houses of Congress perform the same basic tasks. They
consider, amend, and vote on bills. The houses have to work together to carry out many nonlegislative
duties, but each house usually plays a different role in using these powers.
The Constitution requires Congress to hold a joint session to count the Electoral College votes for
presidential candidates. If no presidential candidate has a majority of votes, the House votes on the
three candidates with the most votes. If no vice-presidential candidate has a majority of votes, the
Senate votes on the two candidates with the most votes. Each state has one vote in both the House
and Senate elections. For this reason, it is possible that the president and the vice president could be
from different parties.
Presidential candidates have failed to win a majority of electoral votes only twice in American history.
Those elections had to be settled by these rules. In 1800 the House elected Thomas Jefferson over Aaron
Burr. In 1824 it elected John Quincy Adams over Andrew Jackson.

The Removal Power

The Constitution gives Congress the power to remove any federal official from office. The House is the
chamber with power over impeachment. This is a formal accusation of misconduct in office. If a
majority of the House votes to impeach an official, the Senate has a trial. The chief justice of the United
States oversees the trial. A two-thirds vote of the senators present is needed to convict and remove
someone from office.
Since 1789, several federal judges, a Supreme Court justice, a cabinet secretary, and two presidents
have been impeached. The Senate has convicted many officials, but it has never convicted a president.
The Senate almost convicted President Andrew Johnson. He escaped being convicted by only one vote.
In 1974 two reporters, Bob Woodward and Carl Bernstein, published news stories about a burglary at
the Watergate Hotel in Washington, D.C. These stories connected Republican President Richard Nixon’s
government to burglars who broke into the Democratic Party offices at the Watergate Hotel. A Senate
committee investigating the burglary discovered other crimes. It also found evidence that the president
had helped to hide the crimes. Nixon resigned when it was clear that he would be impeached. He was
the first president in American history to resign.

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In 1998 President Bill Clinton was impeached, but the vote in the House was very close. Clinton was
charged with lying under oath about his relationship with a White House worker. The Senate votes were
much less than the two-thirds majority needed to remove the president from office. For many senators, the
charges did not involve serious crimes.

The Confirmation Power

The Senate must approve presidential appointments. The Senate often does this with no objections.
However, it looks more closely at appointments to major positions, such as cabinet positions and military
posts. Nominees typically serve for just the term of the president. Nominations for federal judges,
including Supreme Court nominees, receive the most attention. This is most likely because those
positions are appointments for life. The Senate has rejected about 20 percent of Court nominations.

The Ratification Power

The Senate must also ratify formal treaties with other nations. To ratify a treaty, two-thirds of the senators
present must vote for it. Senate action on treaties usually has not been a major issue in American foreign
policy. Recently presidents have often avoided the need for a treaty. Instead, they have made executive
agreements that do not need Senate approval.

The Amendment Power

Congress and state legislatures share the power to amend the Constitution. Amendments can be
proposed by a two-thirds vote of both houses of Congress, or by a convention called by the legislatures of
two-thirds of the states.
The second method has never been used, but it raises a constitutional question. Can a constitutional
convention called to propose a certain amendment also propose other amendments? Some people fear
that when the members of a convention meet, they might propose changes to long-established rules.
Congress has considered ways to make sure this does not happen, but it has not taken any action.
Finally, Congress also has the power to decide whether state conventions or state legislatures will ratify a
proposed amendment.
All of the constitutional amendments added to the Constitution have started in Congress. The states
have approved 27 proposed amendments. They have failed to ratify only six. Congress has required
all amendments to be ratified by state legislatures except the Twenty-first Amendment (1933). This
amendment repealed the Eighteenth Amendment on prohibition. The Eighteenth Amendment made it
illegal to make, sell, or transport alcoholic drinks. Supporters of the Twenty-first Amendment thought they
would have an easier time passing it in conventions. Many state legislators supported prohibition.

Reading Progress Check

Classifying What nonlegislative powers does the Senate have?