What Congress Can’t Do
In “What Congress Can Do,” we enumerated the powers that Article I, section 8, of the U.S. Constitution grants to Congress – the powers the Congress Americans elect in November will wield. Now, Article I, section 9 – what Congress can’t do.
Limits for Legislators
As we said yesterday, the Constitution empowers Congress to make all the laws of the land – at least at the federal level. But it also establishes limits on what kinds of laws Congress can make. Some limits show up in the Bill of Rights. The First Amendment, for example, begins, “Congress shall make no law respecting an establishment of religion.” But eight no-nos show up right in Article I. Here they are:
1. “The migration or importation of such persons as any of the states now existing shall think proper to admit, shall not be prohibited by the Congress prior to the year one thousand eight hundred and eight.” Simply put, Congress couldn’t ban the importation of slaves until 1808. Detestable as it was, this provision was key to getting the Constitution ratified. Slaveholders feared a more powerful federal government would interfere with their “right” to treat people as property.
2. “The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.” The “Great Writ” of habeas corpus protects against arbitrary arrest and imprisonment. America’s founders saw it as so fundamental to liberty they didn’t wait for the Bill of Rights to add it to the Constitution.
3. “No bill of attainder or ex post facto law shall be passed.” A bill of attainder is a legislative act that seizes your property, or otherwise punishes you, without judicial process. The English crown used to use such bills against its enemies. An ex post facto law is one that makes something you did legally illegal after you’ve done it, or that increases the penalty for a crime after the fact.
4. “No capitation, or other direct, tax shall be laid, unless in proportion to the census or enumeration herein before directed to be taken.” This suggests that U.S. income tax is unconstitutional, as it’s a “direct” tax that isn’t divvied up “in proportion to the census.” In fact, that’s just what the Supreme Court ruled in 1895. Alas, fellow taxpayers, the Constitution has since been amended. The 16th Amendment gives Congress the power “to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several states, and without regard to any census or enumeration.”
5. “No tax or duty shall be laid on articles exported from any state.” Congress can tax your income, but it still can’t tax a state’s exports.
6. “No preference shall be given by any regulation of commerce or revenue to the ports of one state over those of another; nor shall vessels bound to, or from, one state, be obliged to enter, clear, or pay duties in another.” Congress can’t play favorites among the ports of different states. Through this clause and others, the Constitution effectively established a “free trade zone” within U.S. borders. Before the Constitution was ratified, states often imposed duties on each other.
7. “No money shall be drawn from the treasury, but in consequence of appropriations made by law; and a regular statement and account of the receipts and expenditures of all public money shall be published from time to time.” Congress controls the nation’s checkbook. If the government wants to spend money, Congress has to pass a law to appropriate it. But Congress can’t hide the checkbook from public view.
8. “No title of nobility shall be granted by the United States; and no person holding any office of profit or trust under them, shall, without the consent of the Congress, accept any present, emolument, office, or title, of any kind whatever, from any king, prince, or foreign state.” Congress can’t make anyone king (not even Elvis). And if you work for the U.S. government, you can’t take gifts from foreign countries without Congress’s consent (not even the president, who accepts gifts only in trust on behalf of the American people).
