Congressional Power
While previous portions of Article I outline the form and organization of Congress, as well as its relationship with the executive branch, it is Section 8 which carefully sets out the specific authority granted to the national legislature. Despite some antiquated portions, this wide-ranging and lengthy recitation of the powers of Congress remains relevant to modern America.
The majority of this section relates to Congress' power to regulate economic issues. In short, these clauses guarantee the right of all Americans to earn and protect their money against unfair competition and monopolization. Congress is also granted the power to tax and borrow money, two provisions which have drawn great attention in recent years.
In giving Congress taxing authority, the founding fathers corrected one of the obvious faults of the Articles of Confederation: the national legislature's inability to force the collection of tax revenues. In Section 8, Congress is given this power, subject to certain restrictions and limitations. For example, the document spells out that all federal duties, imposts and excises must be uniform throughout the United States.
Restrictions are also placed upon "direct taxes," such as poll taxes and taxes on property imposed because of ownership. The earlier provisions of Article I, Section 2 require that all such taxes be apportioned among the states; in other words, to enact such a tax Congress must first determine the amount of money to be raised, then allot to each state the portion of this sum which the state's population bears to the total national population.
Congress has been reluctant to use this privilege, largely because apportionment among the states on the basis of population would result in inequities due to the differences in the wealth of the various states. Indeed, "direct taxes" have been imposed only five times in the nation's history, most recently during the Civil War.
A belief that a federal income tax law was, in fact, a direct tax which had not been apportioned among the states found sympathetic ears at the U.S. Supreme Court, which in 1895 held the law unconstitutional. Eventually, the clamor for a national income tax led to the adoption in 1913 of the Sixteenth Amendment, which permits Congress to "lay and collect taxes on incomes" without apportionment among the states.
The income tax is, of course, the main source of revenue for the federal government, which also receives funding from taxes on the income of business establishments, on the sale and manufacture of certain goods, on the money and goods a person inherits and on imports from foreign nations. These taxes are levied by Congress in order to pay for the operation of the federal government and satisfy its constitutional requirement to provide for the common defense and to promote the general welfare.
The exact meaning of the term "general welfare" has be a point of contention since the constitutional convention itself. James Madison felt that the power to tax and spend in this regard was confined to the the Constitution. Alexander Hamilton other hand, argued that this clause of the constitution conferred separate and distinct powers from those powers enumerated in the Constitution. In essence, Hamilton contended that there was no limit on the congressional power of taxation, so long as the taxation was done to promote the general welfare of the nation.
Hamilton's thinking was endorsed by the U.S. Supreme Court in the 1936 case of United States v. Butler, when it ruled: "The power to tax is not unlimited, its confines are set in the clause which confers it, and not in those of Section 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."
Another controversial power of Congress is its ability to borrow money on the credit of the United States. Historically, this clause has become important during times of war, when large amounts of capital were needed quickly in order to meet a threat to national security. In recent years, however, the nation has continued to borrow money in order to meet its increasing obligations. This has led to a great deal of debate regarding the mounting national debt, and the ability of later generations to eventually pay off what is owed to the nation's creditors.
George Washington himself, in his "Farewell Address," called on the American people to cherish the public credit and to use it "as sparingly as possible." Although realizing the need to meet national crises, he nevertheless urged Americans to avoid "the accumulation of debt . . . by vigorous exertions in time of peace to discharge the debts which unavoidable wars may have occasioned, not ungenerously throwing upon posterity the burden which we ourselves ought to bear."
Hand in hand with the government's ability to collect taxes -- and perhaps because of it -- the founding fathers also sought to guarantee all Americans the right to earn money from trade which is unfettered by unfair business practices.
In the area of foreign trade, Congress may determine what articles may be imported into the country, state the terms under which importations may take place, ban certain articles from foreign commerce and make tariff regulations.
Congress can, in fact, stop foreign trade entirely, as it attempted in the ill-fated "Embargo Acts" of the early nineteenth century. In response to harsh trade policies imposed by both England and France, Congress attempted to isolate the United States by banning all foreign trade. Within two years, this policy had severe effects on the U.S. economy, and Congress promptly targeted its actions only toward England and France.
Equally important is the need to regulate the flow of goods and services between the various states. Under the Articles of Confederation, the states had been free to adopt their own trade policies, which hurt each other and made it extremely difficult for foreign powers to deal with the young nation. As a result, the Constitution gave Congress the right to regulate commerce among the states. Time has made this one of the most far-reaching powers of Congress, aided by broad interpretations of this authority by the Supreme Court.
For example, Congress has the power to prevent a state from giving preference to goods manufactured by its own citizens through the taxation of goods coming from other states. This is accomplished largely through a number of federal agencies established by Congress to regulate commerce.
Among these are the Interstate Commerce Commission (ICC), which was created in 1887 to regulate railroads. The scope of this agency has since expanded to include interstate motor carriers, pipelines and express companies.
Another agency, the Federal Trade Commission (FTC), was later established to protect citizens from dishonest practices in interstate commerce. Unfair trade practices, misleading advertising, misrepresentation and unfair competition are all matters which fall under the FTC's supervision.
The states have still retained some power within their own boundaries. Regulations such as inspection laws, quarantine and health laws and laws in regard to bridges and highways -- all of which are essential to the protection, safety and welfare of local areas are handled by the individual states.
One area into which the states are not allowed to intrude is the issuance of money. The Constitution gives Congress the full power to emit bills of credit and coin money. Until 1933, this money usually took the form of currency, gold or silver coins or smaller coins made up of the baser metals. However, in that year Congress nationalized gold, and authorized the return of all gold coins and gold certificates to the United States Treasury for payment in other forms of coin or currency. This move off of the "gold standard" was taken for several reasons, but particularly because the ongoing economic depression of the 1930s had prompted the administration of President Franklin D. Roosevelt to plan an increase in the price of gold and a devaluation of the dollar in order to increase the prices of commodities.
Today, coins are made by the federal government at mints in Philadelphia and Denver. Currency, or paper money, is printed at the Bureau of Engraving and Printing, a division of the Treasury Department, in Washington, D.C.
To promote science and the arts, Congress also controls the mechanisms by which the originator of new devices and works receive patents and copyrights. Patents are granted by the Patent Office of the Department of Commerce, and are generally bestowed for a period of 17 years with no provision for renewal. Copyrights are administered by the Librarian of Congress for a period of 28 years, and may be renewed once.
In addition, the Constitution gives Congress the authority to pass bankruptcy statutes. When a person finds that he can no longer pay his debts, a bankruptcy declaration moves the issue into a federal court, which has jurisdiction (via Congress) in such issues. The court will judge how and to whom the debts are to be paid, based on whatever money or other assets the debtor has. Along with providing for the distribution of these assets, bankruptcy laws passed by Congress assure the debtor that he will not face time in prison. Instead, the debtor may make a fresh start in life when his creditors have received what the courts have decided is a fair payment.
While all of these economic issues are of crucial importance to the nation, Section 8 also gives Congress a multitude of other powers. Among these are the responsibility for delivery of the mail, naturalization provisions for those wishing to become citizens, and the raising and maintenance of the nation's armed forces.
The Constitution gives Congress full responsibility for declaring war; making rules concerning captures on land and water; raising and supporting armies; regulating land and naval forces; calling out militia to execute the laws, suppress insurrections and repel invasions; and organizing, arming and disciplining the militia.
The strong military powers granted to Congress were, again, a reaction to the inadequacies of the Articles of Confederation. To declare war under the Confederation, the consent of nine states was required. This process would have left the nation in serious trouble had a military emergency ensued.
Needless to say, the war powers conferred upon Congress by the Constitution are sweeping. While the President, as commander in chief, may use the armed forces at his disposal to protect national interests, only Congress has the authority to formally declare war. This point has been emphasized in recent years via passage of the War Powers Act of 1973, which became law over the veto of President Richard M. Nixon. This measure severely limits presidential ability to commit U.S. military resources without the advice and consent of Congress.
Acting through the President, Congress in World War II implemented several important pieces of legislation related to the war effort. For example, the Priorities Act of 1941 gave the President power to allocate any material necessary to the defense of the nation. This power was extended to facilities in 1942, granting the President the temporary power to impose consumer rationing and control of materials and production facilities necessary to the war effort. Additional legislation permitted the President to take over and run factories and plants closed down by strikes. Examples such as these have made it clear that Congress can, in times of crisis, take unusual steps to mobilize the industrial assets of the nation for the common defense.
To facilitate the training of capable officers for the various branches of the military, Congress has founded military academies for each branch of the service. Examples include the U.S. Military Academy at West Point, the U.S. Naval Academy at Annapolis and the U.S. Air Force Academy at Colorado Springs.
The addition of new citizens to the United States is made possible through the naturalization powers granted to Congress in Section 8. The first in a long line of naturalization statutes appeared in 1790. Congress has sole authority in this area, although it can and has allowed certain state courts, as well as federal courts, to grant individual naturalization papers. In that capacity, the state court acts as an agent of the federal government by administering federal law.
The nation's mail delivery system is also a product of congressional action. Although the delivery of the mail had been the subject of attention by the individual colonies and the British, it was in 1789 that Congress reorganized the postal service and placed the responsibility for post offices within the Treasury Department. Finally, in 1829, the Postmaster General, who administers the U.S. mail delivery system, was made a member of the President's Cabinet.
Under its power to establish post offices, Congress has created an extensive system for delivery of mail by ship, railroad, plane and highway. Congress also exercises a police power to protect the public against abuses connected with the mail service, including legislation against mail fraud and the mailing of obscenity. The priority traditionally placed upon the safe, prompt delivery of mail is a reflection of the power granted Congress by the Constitution.
Although not as important as it was in the early days of our nation, the ability to punish piracy committed on the high seas still remains a power of Congress. During the early years of our nation, an annual payment was the only way to keep pirates from regularly plundering U.S. vessels. During the presidency of Thomas Jefferson, the administration decided that the payment of such tributes was wrong, and decided to fight for the right of free, unhampered navigation on the high seas.
Today, international law provides that all vessels on the seas and oceans must be registered to a nation, and must fly that nation's flag as a means of identification. Crimes committed on board an American vessel are subject to the courts of the United States. This jurisdiction may change when such vessels are in foreign waters, a point noted by the U.S. Supreme Court in an 1886 case: "Disorders which disturb only the peace of the ship, or those on board, are to be dealt with exclusively by the sovereignty of the home of the ship; but those which disturb the public peace may be suppressed, and if need be, the offenders punished by the proper authorities of the local jurisdiction."
While not extensively employing its constitutional power to affix a system of national weights and measures, Congress has taken some steps into this area. In 1901, for example, it created the Bureau of Standards, which was charged with continually studying and testing existing standards of size, time and quality. Another congressional action in 1918 established standard time zones for the country. The imposition of daylight savings time during a certain period of the year in most of the nation has been one result of this this measure.
Federal lands, such as the District of Columbia, also come under congressional coverage. Governance of the District, established by acts of Congress in 1790 and 1791 to serve as the seat of government for the United States, has taken many forms over the years. The trend toward self-governance of the District has resulted in the creation of the offices of an elected mayor and city council, although Congress still retains control of this area and other federal lands. Among the long list of powers granted to Congress in Section 8, particular attention must be granted to the last. Under this clause, Congress may make all laws "necessary and proper" to execute the powers which the Constitution delegates to the government of the United States or any of its departments or officers. A series of judicial decisions over the years have dubbed this authority the "implied power" clause or the "elastic" clause.
These court rulings have determined that Congress may not only pass any measures necessary to carry out the specific powers granted to it, but it can and does have the authority to pass statutes that may be necessary to carry out all powers "implied" from those delegated powers. The result has been an ability to adapt to the changing conditions of modern life -- such as the regulation of airlines, radio and television broadcasting, telephone and telegraph companies, and nuclear power plants -- which could not have been foreseen by the drafters of the Constitution.
The courts have also made clear that "implied'' power is not unlimited power. In fact, Congress can only exercise "implied" power when it is connected to a power "delegated" to it by the Constitution. In the landmark case of McCullough v. Maryland, Chief Justice Marshall said: "Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adopted to that end, which are not prohibited, but consistent with the letter and spirit of the Constitution, are constitutional."
It is no exaggeration to say that the great growth in federal authority experienced since the drafting of the Constitution has been not so much a result of the powers granted to the national government by the document, but rather by the "implied" powers emanating from them. This inherent ability to adapt legislation to new contingencies is both an asset of the Constitution and a tribute to the foresight of its drafters.