Omar Bennett
The United States Constitution, which came into effect on June 21, 1788, outlines the powers and limitations of Congress in Article I, Sections 9 and 10, along with various amendments. While Congress holds significant power, it is subject to checks and balances by other government bodies, such as the President's authority. Here, we will explore three powers that are specifically denied to Congress in the Constitution.
| Characteristics | Values |
|---|---|
| Powers denied to Congress | Writ of Habeas Corpus, Bills of Attainder and Ex Post Facto Laws, Export Taxes and the Port Preference Clause |
| First limit placed on congressional power | A limit on regulating the slave trade which did not extend beyond the year 1808 |
| Other powers denied to Congress | Power to impose direct taxes on citizens, power to raise a standing military force, regulate interstate or foreign commerce, establish a sound money system, or enforce treaties |
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What You'll Learn
Congress cannot suspend the writ of habeas corpus
The United States Constitution, in Article I, Section 9, denies Congress the power to suspend the writ of habeas corpus. The writ of habeas corpus, which translates to "produce the body", grants prisoners the right to appear in a court of law to challenge their imprisonment. The Suspension Clause of the Constitution states that "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." This clause protects liberty by safeguarding citizens' rights to due process and preventing the government from detaining individuals indefinitely without legal recourse.
While the Constitution explicitly denies Congress the power to suspend the writ of habeas corpus, there have been instances in American history where presidents have unilaterally suspended the writ during times of war or national emergency. For example, President Abraham Lincoln suspended the writ during the Civil War, and Franklin D. Roosevelt did so during World War II. In more recent times, George W. Bush attempted to suspend the writ after the 9/11 attacks, but this was overturned by the Supreme Court. These suspensions were justified on the grounds of national security and the need to act swiftly and decisively during times of crisis.
The Suspension Clause has been interpreted and debated extensively throughout history. Some argue that the clause assumes that access to habeas relief will exist even when the privilege of the writ is not suspended. However, Chief Justice Marshall noted in Ex Parte Bollman (1807) that the clause does not expressly guarantee such access. The Supreme Court addressed this dispute in Boumediene v. Bush (2008), ruling that the clause not only restricts Congress's power to suspend habeas statutes but also guarantees prisoners a forum to challenge their detention.
The writ of habeas corpus is an essential safeguard against arbitrary detention and a fundamental protection of individual liberty. By denying Congress the power to suspend it, the Constitution ensures that even in extraordinary circumstances, citizens have the right to due process and a legal recourse to challenge their imprisonment. While there have been exceptions to this rule in times of national crisis, the writ of habeas corpus remains a cornerstone of the American justice system and a protection against governmental overreach.
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Congress cannot pass bills of attainder
The United States Constitution expressly prohibits Congress from enacting bills of attainder. This is one of the six areas of legislation that Article I, Section 9 of the Constitution limits, along with the writ of habeas corpus, ex post facto laws, export taxes, and the port preference clause.
A bill of attainder is a law that imposes criminal punishment on specific individuals or groups for actions they previously took, without the benefit of a trial. In other words, it is a law that "legislatively determines guilt and inflicts punishment upon an identifiable individual without provision of the protections of a judicial trial". The three characteristics of a bill of attainder are that it applies with specificity to a person, people, or easily identifiable members of a group, it applies a legal burden to that group, and it imposes punishment.
The prohibition against bills of attainder is intended to protect the separation of powers and ensure that the government does not punish someone unless they receive due process, usually in the form of a trial. This clause also reinforces the idea that citizens should be able to know an action is illegal before committing it.
The Supreme Court has identified three types of legislation that would fulfill the "punishment" prong of the test: the "historical test", where the burden is such as has "traditionally" been found to be punitive; the "functional test", where the type and severity of the burdens imposed are the "functional equivalent" of punishment as they cannot reasonably be said to further "non-punitive legislative purposes"; and the "motivational test", where the legislative record shows a "congressional intent to punish".
There have been several instances where proposed or passed bills have been considered bills of attainder. For example, in 2009, the city of Portland, Oregon attempted to prosecute more severely those on a "secret list" of individuals who had committed "liveability crimes". This was challenged as an unconstitutional bill of attainder. In another instance, Congress proposed retroactive taxation of up to 90% of the value of bonuses paid to employees when their employer had received funds from the Troubled Asset Relief Program (TARP). This was also considered a bill of attainder.
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Congress cannot enact ex post facto laws
The United States Constitution prohibits Congress from enacting ex post facto laws. This means that Congress cannot make a law that applies retroactively to events that occurred before the law was passed. Citizens should be able to know whether an action is illegal before they commit it.
Ex post facto laws are expressly forbidden by the United States Constitution in Article 1, Section 9, Clause 3 (with respect to federal laws) and Article 1, Section 10 (with respect to state laws). The framers of the Constitution considered ex post facto laws so repugnant to justice that the document expressly bans them twice.
An ex post facto law can take several forms. It can criminalise an action after it has been committed, or it can aggravate a crime, making it more serious than it was when committed. An ex post facto law can also change the punishment for a crime, inflicting a greater punishment than was specified when the crime was committed. Additionally, it can alter the rules of evidence, requiring less or different testimony than was necessary at the time of the crime to convict the offender.
Ex post facto laws can also apply in the context of civil law. For example, a law may be enacted that imposes civil penalties for actions that were previously legal. In some cases, an ex post facto law may even be used to pardon or decriminalise certain acts.
The prohibition of ex post facto laws is not unique to the United States. Several other countries, including Croatia, India, Indonesia, Ireland, the Philippines, Poland, and Portugal, have constitutional provisions prohibiting the retroactive application of laws.
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Congress cannot regulate interstate or foreign commerce
The United States Constitution, specifically Article I, Sections 9 and 10, along with various amendments, outlines the powers denied to Congress. One such power that Congress does not hold is the ability to regulate interstate or foreign commerce.
The Articles of Confederation, which were in effect from 1781 to 1789, placed significant limitations on the powers granted to Congress, hindering its ability to govern the nation effectively. One of these limitations was the inability to regulate interstate or foreign commerce. This restriction was likely due to the desire to limit the power of the national government and preserve the autonomy of the individual states.
The inability of Congress to regulate interstate or foreign commerce meant that it could not pass laws or impose regulations on the movement of goods, services, or people across state lines or between the United States and other countries. This limitation may have been intended to prevent Congress from favouring certain states or regions over others in terms of trade and economic opportunities. However, it is important to note that the Constitution has since been amended, and Congress's power to regulate interstate and foreign commerce may have evolved through judicial interpretations and legislative actions.
The restriction on Congress's ability to regulate interstate or foreign commerce had several implications for the nation. Firstly, it likely impacted the free flow of commerce and trade, as each state may have had its own regulations and restrictions, hindering the development of a unified national market. Secondly, it limited Congress's ability to address economic issues that affected multiple states or the nation as a whole. For example, Congress would not have been able to implement uniform tariffs or taxes on goods moving between states, potentially leading to inconsistencies and conflicts in taxation policies across the nation.
In modern times, Congress has been granted the power to regulate interstate and foreign commerce through the Commerce Clause of the Constitution. This clause, found in Article I, Section 8, Clause 3, gives Congress the power " [t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes". This expansion of congressional power has allowed for the creation of a more unified national economy and has enabled Congress to address interstate and international trade issues more effectively.
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Congress cannot raise a standing military force
The United States Constitution grants Congress the power to declare war and raise armies, acting as a check on the president's war powers. However, it is important to note that the Constitution does not give the president the power to declare war. The president can use the military and militias for the country's defence and is "bound to resist force by force". This means that while the president cannot initiate a war, they can respond to an attack without waiting for congressional authorisation.
The Framers of the Constitution allocated war powers to Congress to prevent the president from having excessive control over the military. The power to raise armies is specifically mentioned in Article I, Section 8 of the Constitution. This section also describes two types of land forces: the Militia, which Congress can "call forth" and organise, arm and discipline, and the Army, which Congress can "raise and support" through regular appropriation acts limited to no more than two years.
The two-year limitation on appropriations for the Army was included to address the historical concern that the power to raise and maintain armies had been used to the detriment of Englishmen's liberties and well-being. This limitation ensures that Congress must regularly re-evaluate its commitment to military funding and prevents the maintenance of a standing army without congressional consent.
While Congress has the power to raise armies, it has only issued 11 formal declarations of war, the last of which was in 1942. Since then, Congress has authorised presidential military action or provided alternative forms of authorisation, such as joint congressional resolutions, which have a similar effect without being formal declarations of war.
In conclusion, while Congress has the power to raise a standing military force, it has primarily relied on other forms of authorisation to address military engagements since World War II. The power to raise armies remains an important check on the president's war powers and ensures that the use of military force aligns with the country's legislative interests.
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