Enumerated and Implied Powers
As with the executive and judicial branches of government, Congress is given its powers by the U.S. Constitution. An enumerated power is one specifically granted to Congress by Article 1 of the U.S. Constitution. These powers vary in their application, from very general to very specific. The power to raise taxes and spend tax revenue to fund the military and "general welfare" programs—such as education, law enforcement, and Social Security benefits—are two examples. Importantly, Congress also has the sole power to declare war, done by issuing a formal a declaration of war against a country or countries.
Congress also has implied powers. An implied power is a power assumed by Congress through interpretation of the necessary and proper clause, or elastic clause, the clause in the U.S. Constitution granting Congress the right to make any laws required to carry out Congress's specific powers listed in the Constitution. As stated in Article 1, Section 8, Clause 18, of the Constitution, Congress has the power "to make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers." Congress has invoked this clause to create federal agencies that support federal programs, prohibit the bribery of federal officials, punish counterfeiters, and establish many other laws. This clause is also called the elastic clause because it can be stretched to cover issues not mentioned specifically in the Constitution. At times, legislation has been challenged in court when an individual or group believes Congress has exceeded its power in relying on the elastic clause. In 1816 the state of Maryland attempted to tax a bank established by the federal government, stating that Congress did not have the right to establish the bank. An employee of the bank, James W. McCulloch, refused to pay the tax, resulting in a lawsuit. The U.S. Supreme Court unanimously ruled in McCulloch v. Maryland (1819) that the government did in fact have the authority to establish a bank under the elastic clause; the ruling also held that Maryland's law violated the supremacy clause of Article 6.
Congress also undertakes bureaucratic oversight of the executive branch. Bureaucratic oversight is congressional supervision of the many departments and agencies that make up the executive branch. This supervision takes place through congressional hearings about policies made by executive agencies, studies of executive policies made by congressional support agencies, the appropriation, or giving, of funds for executive agencies, and other means.
Powers Specific to the House of Representatives or to the Senate
Generally, the powers of Congress have to be executed by both chambers. However, there are a handful of constitutional powers that are specific to a particular chamber of Congress. The House of Representatives has the exclusive power to initiate all legislation that will raise revenue or spend federal funds. The House also has the power to choose the president if no presidential candidate has received a majority of electoral votes. The Senate is granted the exclusive power to choose the vice president if no vice-presidential candidate has received the necessary number of electoral votes. However, since adoption of the 12th Amendment, presidential and vice-presidential candidates have run together on a joint ticket, so the Senate has not executed this power. The Senate also has the power to approve treaties and confirm various presidential nominees for federal office, including Supreme Court justices.
Impeachment proceedings, a check on both of the other branches, involve both chambers. Impeachment is the formal charge of misconduct while in office against a federal official by the House of Representatives. Once officials are impeached, the Constitution grants to the Senate the power of hearing the evidence and acting as jurors in the case. In the case of a presidential impeachment, the chief justice of the United States oversees the trial. While the House has begun impeachment hearings dozens of times, fewer than 20 officials have actually been impeached. Of those who were impeached, only a handful have been convicted of wrongdoing and removed from office by the Senate. The House has impeached two presidents—Andrew Johnson and Bill Clinton—but both were acquitted in the Senate when fewer than two-thirds of senators voted that they were guilty (Johnson survived by only one vote). The House Judiciary Committee approved articles of impeachment against President Richard Nixon, but he resigned under intense political pressure before the full House voted on the charges.
Enumerated Powers of Congress
|House of Representatives||Senate|
|Spend tax revenue to fund public programs, defense, and other government functions||✓||✓|
|Coin and print currency||✓||✓|
|Regulate commerce across state borders and with foreign countries||✓||✓|
|Regulate naturalization and immigration||✓||✓|
|Maintain the National Guard||✓||✓|
|Maintain the postal service||✓||✓|
|Protect copyrights and patents||✓||✓|
|Create lower courts||✓||✓|
|Initiate all bills for raising revenue and spending||✓|
|Impeach public officials||✓|
|Choose the president if no candidate has received the necessary number of electoral votes||✓|
|Conduct impeachment trials||✓|
|Approve treaties with foreign countries||✓|
|Choose the vice president if no candidate has received the necessary number of electoral votes||✓|
|Approve presidential nominations for specific offices, including Supreme Court justices||✓|
Article 1, Section 8, Clause 3, known as the commerce clause, gives Congress the power to regulate interstate commerce by stating that it can "regulate Commerce ... among the several States." The clause has become one of Congress's most controversial sources of power and has undergone several interpretations by the courts since the 1930s.
Before the 1930s, the Supreme Court, using the power of judicial review, typically struck down legislation based on the commerce clause, seeing the commerce clause connection as a backdoor way for Congress to assert undue power over the states. For example, the court struck down legislation that attempted to regulate certain social issues (such as child labor) instead of actual interstate trade or economic exchange among the states.
However, in the 1930s the shock of the Great Depression and the resulting instability of the economy led to a looser interpretation of the commerce clause by the courts. By the late 1930s, the government was eager to play a stabilizing role in the economy. As a result, Congress created several regulatory agencies and commissions to more closely regulate banking, investing, and other economic activity. Though these actions were challenged, the courts upheld them. Initially, the Supreme Court struck down several of these laws on the grounds that they interpreted the commerce clause too broadly. Then in 1937 the Supreme Court upheld the National Labor Relations Act in NLRB v. Jones and Laughlin (1937) on commerce clause grounds. Between then and 1995, the court sided with a broad interpretation of the commerce clause in every challenge.
In the 1960s the definition of interstate commerce was once again broadly interpreted to further civil rights legislation. The Civil Rights Act of 1964 was passed under the purview of the commerce clause. Motels, restaurants, and other establishments that had previously enforced segregation and other racially discriminatory practices were considered in violation of federal law since they served both customers and food that may have crossed state lines. The Supreme Court decreed that racial discrimination had a "direct and adverse effect on the free flow of interstate commerce."
In the early 21st century, the commerce clause became the center of controversy surrounding the Patient Protection and Affordable Care Act (2010), also known as Obamacare. For the first time, Americans were required to have health insurance, be it private or through a government program. In 2012 the Supreme Court ruled that Congress could not force citizens to participate in this form of commerce. However, the court also ruled that the required insurance did qualify as a type of tax, which Congress has the power to levy. On the other hand, in Gonzalez v. Raich (2005) the Supreme Court accepted the commerce clause as a justification for a federal law banning the growth and sale of marijuana even if the plants were intended for sale only within a state and not across state lines. The court majority ruled that local production and sale of the drug was part of a nationwide market that Congress had the right to legislate to control.