Congressional Powers: What The Constitution Doesn't Allow

The United States Constitution's First Article establishes the legislative branch of the federal government, the United States Congress. Article One grants Congress various powers and the ability to pass laws necessary and proper to carry out those powers. However, it also places limits on the powers of Congress and the states to prevent abuse of power. The separation of powers principle is especially significant for Congress, which may only exercise legislative powers herein granted within Article I (as later limited by the Tenth Amendment). This nondelegation doctrine also prohibits Congress from delegating its legislative authority to the executive or judicial branches. While not explicitly stated in the Constitution, Congress has long asserted its power to investigate and compel cooperation with investigations.

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No state can make anything but gold and silver coin a tender in payment of debts

The United States Constitution contains several provisions that limit the powers of Congress. One such provision, known as Article I, Section 8, Clause 5, states that "No state shall [...] make anything but gold and silver coin a tender in payment of debts". This clause is often cited by proponents of hard money, such as gold and silver coins, as it prohibits states from using anything other than these precious metals as legal tender.

This clause is part of the Constitution's delegation of certain powers to the federal government while restricting states' abilities to interfere with monetary policy. By reserving the coining of money to the federal government, the Constitution aimed to prevent states from issuing their own currency and potentially destabilising the national economy. This interpretation has been upheld by the Supreme Court, which ruled that a creditor could demand payment in gold or silver if the marshal of a state court accepted state bank notes in payment.

The historical context of this clause is important to consider. The Founding Fathers were wary of fiat currencies, which are not backed by a physical commodity, due to their potential for inflation and deflation. Thomas Jefferson, for instance, warned that "If the American people ever allow private banks to control the issue of their currency, first by inflation, then by deflation, the banks and corporations that will grow up around them will deprive the people of all property". This concern over the dangers of fiat money and the influence of private banks influenced the decision to restrict legal tender to gold and silver coins.

In modern times, however, the interpretation and enforcement of this clause have evolved. Since 1972, when President Nixon suspended the convertibility of US dollars into gold, the dollar has been a fiat currency. While this move effectively ended the gold standard and the direct link between the dollar and gold, it also highlighted the importance of public confidence in a country's currency. Today, the value of fiat currencies like the US dollar is based on people's belief in the government's ability to manage the economy and honour its financial commitments.

Despite the Constitution's explicit mention of gold and silver coins, states have found ways to work around this restriction. For example, states have made cheques a legal tender for debt payment, which is not prohibited by the Constitution. This practice underscores the evolving nature of monetary policy and the ongoing dialogue between federal and state authorities in defining and enforcing the limits of their respective powers.

Congress can't prohibit the migration or importation of persons

The Migration or Importation Clause of the US Constitution's First Article states:

> "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, but a Tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person."

This clause does not grant Congress any authority to restrict immigration. Instead, it limits congressional power by explicitly stating that Congress cannot prohibit the migration or importation of persons before 1808. The inclusion of the word "migration" was not meant to imply a general federal power to restrict migration but was a euphemism intended to avoid direct references to slavery in the Constitution. This interpretation is supported by the fact that indentured servants, who migrated voluntarily, were considered "articles of commerce" and regulated under the Commerce Clause during the colonial era and the early republic.

The Migration or Importation Clause was intended to protect the importation of slaves, which was a significant economic interest for some states at the time. James Madison, in Federalist 42, argued that the phrase "migration or importation of persons" was used due to "scruples against admitting the term 'slaves' into the Instrument." This allowed those opposed to slavery to view imported persons as emigrants, while others could consider them slaves or "foreign malefactors."

While the clause does imply a power to limit the migration of some voluntary arrivals, it does not follow that Congress was assumed to have a general power to forbid immigration. The Foreign Commerce Clause, during the Founding era, was generally interpreted as giving Congress the power to regulate the international shipment of articles of commerce, including slaves and indentured servants, but not to forbid migration.

In conclusion, the Migration or Importation Clause of the US Constitution restricted Congress's power to prohibit the migration or importation of persons until 1808. The use of the term "migration" was a euphemism to avoid endorsing slavery and did not imply a general federal power to restrict migration. The clause was intended to protect the economic interests of states involved in the slave trade and did not grant Congress any additional authority over immigration.

Privilege of the Writ of Habeas Corpus cannot be suspended

The Privilege of the Writ of Habeas Corpus, a concept imported from English common law, is a right that allows prisoners to test the legality of their detention. A person who believes they are being imprisoned illegally can file a petition asking a judge to issue a writ of habeas corpus. When a prisoner files a petition, the custodian must explain why the imprisonment is lawful. If the court is not satisfied with the explanation, it will order the custodian to release the prisoner.

The Suspension Clause in the US Constitution states that this privilege cannot be suspended unless in "Cases of Rebellion or Invasion" where "the public Safety may require it". This clause assumes that some access to habeas relief will exist when the privilege of the writ has not been suspended. However, it does not explicitly guarantee that access. The interpretation of this clause has been a subject of debate, with some arguing that it only restricts Congress's ability to suspend existing habeas statutes, while others contend that it guarantees prisoners a forum to challenge their detention.

The writ of habeas corpus has been suspended four times in US history: during the Civil War, in eleven South Carolina counties during Reconstruction due to the Ku Klux Klan, in two provinces of the Philippines during an insurrection in 1905, and in Hawaii after the bombing of Pearl Harbor. President Abraham Lincoln's unilateral suspension during the Civil War provoked controversy, but Congress later authorized it and passed a statute permitting suspension.

The writ is typically sought by convicted defendants in state prison, with over 18,000 petitions for the writ of habeas corpus being filed annually in federal court by state prisoners. The Supreme Court's interpretation of the Suspension Clause has evolved over time, as seen in the Boumediene v. Bush case in 2008, where it held that habeas jurisdiction extends to prisoners detained outside the US at Guantanamo Bay.

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No Bill of Attainder or ex post facto Law shall be passed

Article I, Section 9, Clause 3 of the US Constitution explicitly states that "No Bill of Attainder or ex post facto Law shall be passed". This clause serves as a crucial safeguard against legislative overreach and reinforces the separation of powers by prohibiting Congress from enacting certain laws that infringe on the judiciary's role.

A Bill of Attainder is a law that specifically targets an individual or a group and imposes punishment without providing the protections of a judicial trial. In other words, it allows the legislature to act as both the accuser and the judge, bypassing the judicial system and depriving the accused of their right to due process. Historically, bills of attainder often resulted in judicial execution, with the property of the convicted being confiscated by the Crown or lord rather than passed on to their family. The last use of attainder in the UK was in 1798 against Lord Edward FitzGerald for leading the Irish Rebellion. American opposition to these laws, informed by British colonial practices, led to their prohibition in the US Constitution in 1789.

The Ex Post Facto Clause, meanwhile, prohibits the federal and state governments from enacting laws that retroactively criminalise actions that were legal when they were committed or impose harsher penalties for existing crimes. In Latin, "ex post facto" means "after the fact", reflecting the nature of such laws that change the legal consequences of past actions. This clause ensures that individuals are not punished for actions that were innocent at the time they were committed and protects against arbitrary legislative interference in criminal matters.

Both the prohibitions on Bills of Attainder and ex post facto laws serve to uphold the foundational principles of the American justice system, including due process, the separation of powers, and the rule of law. They reflect the Framers' recognition of the importance of checks and balances and the need to protect individuals from punitive legislative actions. As such, these clauses continue to shape legal interpretations and challenges to laws deemed to violate these fundamental constitutional guarantees.

No Capitation or other direct Tax shall be laid

Article I, Section 9, Clause 4 of the U.S. Constitution states that "No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or enumeration herein before directed to be taken". This clause, also known as the "Direct Tax Clause", places a restriction on the power of Congress to impose certain types of taxes.

The Direct Tax Clause prohibits Congress from imposing a capitation tax, which is a tax levied on an individual based on a fixed amount per person, without regard to income or resources. In other words, it prohibits Congress from imposing a head tax or poll tax. Additionally, the clause requires that any other direct taxes, such as property taxes, be apportioned according to the population of each state as determined by the Census. This ensures that each state is taxed fairly and proportionally based on its population.

The Direct Tax Clause was originally included in the Constitution to address concerns about taxation without representation and to prevent the federal government from imposing excessive taxes on the states. The Founding Fathers wanted to ensure that direct taxes were distributed equitably among the states and that they did not become a burden on certain states or individuals.

However, the interpretation and application of the Direct Tax Clause have evolved over time. The Fourteenth Amendment modified the apportionment of representatives, changing the basis for apportionment from "whole Number of free Persons" to "whole number of persons in each State, excluding Indians not taxed". Additionally, the Sixteenth Amendment altered the way direct taxes could be imposed by granting Congress the power to levy a federal income tax without regard to the apportionment requirements of the Direct Tax Clause.

Despite these changes, the Direct Tax Clause still plays an important role in shaping tax policy and ensuring fairness in taxation. It continues to guide how Congress structures direct taxes and reinforces the principle of proportional and equitable taxation among the states.

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