What Congress Can Do
With that in mind, we’re taking a two-part look at what the U.S. Constitution says about Congress. Today, what Congress can do. Tomorrow, what it can’t.
Law for the Lawmakers
Prior to 1789, when the first government under the U.S. Constitution took office, the United States had no executive branch and no federal judiciary. But even before George Washington became “Mr. President” and the Supreme Court became supreme, the United States had a Congress – or, rather, a series of Continental Congresses.
So it’s not surprising that the Constitution’s framers figured Congress would dominate the new government. James Madison even worried that “the legislative department is everywhere extending the sphere of its activity and drawing all power into its impetuous vortex.” Maybe that’s why he and the other framers spent so much time enumerating Congress’s powers – and the limits of them.
Enumerated Powers
Article I of the Constitution says that “all legislative powers herein granted shall be vested in a Congress of the United States.” In other words, Congress gets to make all the federal laws (though it still has to get the president to sign them, or pass them over his veto with a two-thirds majority).
But that’s not the whole story. Article I, section 8, enumerates 18 specific powers for Congress. These 18 powers give Congress its constitutional teeth, but they also curb “the sphere of its activity” – because every law Congress makes has to relate back to one. They are:
1. The power “to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States.” Simply put, Congress has the power to tax
and spend.
2. The power “to borrow money on the credit of the United States.” How much we should borrow has been an issue from the start.
3. The power “to regulate commerce with foreign nations, and among the several states, and with the Indian tribes.” This “interstate commerce clause” has been taken to imply wide powers. Among other things, it’s been used to bust trusts, regulate workers’ hours and wages, and forbid racial discrimination in public places.
4. The power “to establish a uniform rule of naturalization, and uniform laws on the subject of bankruptcies.” Congress gets to say who’s a citizen (subject to the 14th Amendment) and who’s broke.
5. The power “to coin money,” “regulate the value thereof,” and “fix the standard of weights and measures.” In addition to spending money, Congress gets to make it. It also gets to say whether you’re 6 feet tall or 1.8 meters.
6. The power “to provide for the punishment of counterfeiting the securities and current coin of the United States.” Don’t mess with Uncle Sam’s money.
7. The power “to establish post offices and post roads.” Because neither snow nor rain nor heat nor gloom of night should keep those couriers from the swift completion of their appointed rounds.
8. The power “to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.” Congress can protect intellectual property through copyrights and patents – though it’s only supposed to do so in the interest of “progress.”
9. The power “to constitute tribunals inferior to the Supreme Court.” These include the other federal courts.
10. The power “to define and punish piracies and felonies committed on the high seas, and offenses against the law of nations.” Congress has the power to punish pirates and other breakers of international law.
11. The power “to declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water.” Constitutionally, only Congress can “declare war,” but it hasn’t done so since World War II. Letters of marque and reprisal authorized private ships, called “privateers,” to attack vessels from enemy nations.
12. The power “to raise and support armies.” Even with this power, Congress was at first wary of standing armies, preferring to rely on state militias instead. Only later did it move toward army regulars.
13. The power “to provide and maintain a navy.” The navy had been disbanded after the Revolution and was not reestablished until 1798.
14. The power “to make rules for the government and regulation of the land and naval forces.” The military has a separate set of laws, overseen by Congress.
15. The power “to provide for calling forth the militia to execute the laws of the union, suppress insurrections, and repel invasions.” Before Congress raised a standing army, command over state militias was crucial. It still is, though the state militias are now the National Guard.
16. The power “to provide for organizing, arming, and disciplining, the militia, and for governing such part of them as may be employed in the service of the United States.”
17. The power “to exercise exclusive legislation in all cases whatsoever, over such district . . . as may . . . become the seat of the government of the United States.” Washington, DC, didn’t exist when the Constitution was drafted, but the framers gave Congress the power to run the place. It still does.
18. The power “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.”
That last one is key. Known as the “necessary and proper” or “elastic” clause, it opens up a wide range of implied powers and legislative possibilities. Americans have been arguing about how to interpret it ever since. (Alexander Hamilton said “loosely.” Thomas Jefferson said “strictly.”) One citizen’s “necessary and proper” is another’s “impetuous vortex.”
Article I also explicitly curbs Congress’s powers.
