The Constitution's Expressed Powers: What And Where?

The US Constitution grants powers to the federal government, which are known as expressed powers, enumerated powers, explicit powers or delegated powers. These powers are primarily found in Article I, Section 8, which lists 18 clauses outlining the specific authorities granted to Congress, such as the power to levy taxes, declare war, and regulate commerce among the states. These powers enable Congress to govern effectively and ensure a functional central government capable of managing national issues. They are contrasted with reserved powers that only the states possess. The Tenth Amendment, for example, states that The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

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The power to tax and spend for welfare and defence

The US Constitution outlines the powers granted to the federal government of the United States. These powers are known as Expressed Powers, Enumerated Powers, Explicit Powers or Delegated Powers. Most of these powers are listed in Article I, Section 8, also known as the Enumerated Powers.

The interpretation of the General Welfare Clause has been a subject of debate, with two primary interpretations put forward by the authors of The Federalist Papers, James Madison and Alexander Hamilton. Madison argued for a narrow interpretation, asserting that spending must be tied to another specifically enumerated power, such as regulating interstate or foreign commerce, or providing for the military. On the other hand, Hamilton advocated for a broader interpretation, viewing spending as an enumerated power that Congress could exercise independently.

The Supreme Court has also weighed in on the debate, with early interpretations tending towards a narrower view. In the 1922 case of Bailey v. Drexel Furniture Co., the Court held that a tax on child labour was an impermissible attempt to regulate commerce beyond the scope of the Commerce Clause. However, in the 1936 case of United States v. Butler, the Court adopted a broader interpretation, holding that the power to tax and spend is an independent power derived from the General Welfare Clause.

In modern times, the Spending Clause is considered one of Congress's most important powers. Congress has used this power to pursue broad policy objectives, including those that may fall outside its enumerated powers. The Court has placed some restrictions on the spending power, including factors that ensure the voluntary and knowing acceptance of funding conditions.

The power to regulate commerce

Expressed powers, also known as Enumerated Powers or Delegated Powers, are rights given to Congress to conduct governmental duties. They are outlined in the US Constitution, with most of these powers found in Article 1, Section 8. The Tenth Amendment limits the powers of Congress to those expressed in the Constitution.

The Commerce Clause, outlined in Article 1, Section 8, Clause 3 of the US Constitution, gives Congress the power to regulate commerce. This includes commerce with foreign nations, among states, and with Indian tribes. The Commerce Clause has been used to justify legislative power over the activities of states and their citizens, leading to debates about the balance of power between federal and state governments.

The interpretation of the Commerce Clause has been a subject of discussion, with the Constitution not explicitly defining "commerce." Some argue it refers to trade or exchange, while others claim it describes broader commercial and social intercourse between citizens of different states. Early Supreme Court cases viewed the clause as limiting state power, interpreting it in the context of commerce rather than regulation.

The Supreme Court has also provided interpretations of the Commerce Clause in various cases, including NLRB v. Jones & Laughlin Steel Corp in 1937, where the Court recognised broader grounds for using the clause to regulate state activity. The Court held that an activity was considered commerce if it had a "substantial economic effect" on interstate commerce.

In United States v. Lopez (1995), the Supreme Court ruled that Congress had exceeded its power under the Commerce Clause by passing the Gun-Free School Zones Act, as it did not have the authority to regulate firearms in local schools. This decision marked a return to a more conservative interpretation of the clause.

The Dormant Commerce Clause is an implicit aspect of the Commerce Clause, prohibiting states from passing legislation that discriminates against or excessively burdens interstate commerce. This aims to prevent protectionist state policies that favour in-state citizens or businesses over non-citizens conducting business within the state.

The power to declare war

The Expressed Powers, also known as Enumerated Powers, are rights given to Congress to conduct governmental duties. Most of these powers are found in Article I, Section 8 of the United States Constitution. The Tenth Amendment limits the powers of Congress to those expressed in the Constitution, so these powers are important to the way Congress functions.

One of the Enumerated Powers of Congress is the power to declare war. Article I, Section 8 of the Constitution states that "Congress shall have the power to declare war". This power is also known as the Declare War Clause.

The Declare War Clause gives Congress the exclusive power to declare war both formally and informally. A formal declaration of war is an official announcement that a hostile relationship exists with another nation. The United States has only formally declared war five times: the War of 1812, the Mexican-American War, the Spanish-American War, World War I, and World War II. Informal declarations of war, or authorizations of hostile attacks, include the Vietnam War and the 2003 Iraq War.

While the Declare War Clause limits the President's power to initiate the use of military force, there is debate about the extent of the President's authority in this regard. Some argue that the President has the power to respond to attacks, including with offensive force, and to deploy troops in situations that do not amount to war, such as peacekeeping missions.

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The power to raise and support armies

The Constitution of the United States grants Congress the power to raise and support armies. This power is outlined in Article I, Section 8 of the Constitution, which enumerates Congress's powers regarding war.

The ability to raise and support armies acts as a check on the president's commander-in-chief powers. While the president has the authority to conduct military operations once a war begins, Congress must approve the military budget for the Department of Defense. This ensures that the will of the governed plays a role in any war effort, as constituents can voice their opposition to a war by influencing their representatives in Congress.

Congress's power to raise and support armies is subject to certain limitations. For example, no appropriation of money for this purpose shall be for a longer term than two years. Additionally, the Tenth Amendment restricts Congress to only those powers granted to it by the Constitution, preventing it from acting beyond its enumerated powers.

The power to impeach the President

Expressed powers, also known as Enumerated Powers or Delegated Powers, are rights given to Congress to conduct governmental duties. These powers are outlined in the US Constitution, with most found in Article 1, Section 8. The Tenth Amendment limits Congress's powers to those expressed in the Constitution.

The US Constitution grants Congress the authority to impeach and remove the President. Article I, Section 2, Clause 5 gives the House of Representatives the sole power of impeachment. The Senate, per Article I, Section 3, Clause 6, is then responsible for trying impeachments. The sanctions for an impeached and convicted individual include removal from office and potentially being barred from holding future office, but impeachment does not preclude criminal liability. The President does not have the pardon power in cases of impeachment. Article II, Section 4 defines which officials are subject to impeachment and what constitutes impeachable behaviour.

The impeachment power was first included in the Constitution during the Constitutional Convention in 1788, before the presidency was even defined. The Founders included it out of fear of potential executive power abuse. The impeachment process is a fundamental component of the system of checks and balances.

The House of Representatives charges an official of the federal government by approving articles of impeachment by a simple majority vote. The House then sends its articles of impeachment to the Senate, which sits as a High Court of Impeachment to consider evidence, hear witnesses, and vote to acquit or convict. A committee of representatives, called "managers," acts as prosecutors before the Senate.

Three US presidents have been impeached: Andrew Johnson in 1868, Bill Clinton in 1998, and Donald Trump in 2019 and 2021. Johnson was acquitted by the Senate by one vote.

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