Simone Lawson
The US Constitution grants specific powers to each branch of the government to maintain checks and balances. Expressed powers, also known as enumerated powers, are the specific authorities granted to Congress by the Constitution. These powers are explicitly listed, primarily in Article I, Section 8, and are essential for the functioning of the federal government. They include the power to levy and collect taxes, borrow money, regulate commerce, declare war, and raise and support armies. Beyond these expressed powers, Congress also has implied and inherent powers. Implied powers are those that are not explicitly stated in the Constitution but are inferred as necessary to carry out the expressed powers, while inherent powers are those that naturally belong to any national government, such as the power to acquire territory.
| Characteristics | Values |
|---|---|
| Expressed powers | Powers granted to the government by the Constitution, also known as Enumerated Powers |
| Enumerated Powers | The power to coin money, regulate foreign and interstate commerce, declare war, grant patents and copyrights, levy and collect taxes, borrow money, raise and support armies, and more |
| Implied Powers | Authoritative actions not specifically granted to Congress in the Constitution but are considered necessary to fulfill governmental duties |
| Inherent Powers | Powers that naturally belong to any national government, such as the power to acquire territory and conduct foreign diplomatic relations |
| Necessary and Proper Clause | Allows Congress to make laws necessary to carry out its Enumerated Powers |
| Elastic Clause | The Necessary and Proper Clause is also known as the Elastic Clause due to its flexibility in interpretation, which can be used to expand or limit Congressional powers |
| Strict Constructionism | The interpretation of the Necessary and Proper Clause that Congress may only make laws if its ability to apply Enumerated Powers is impaired |
| Loose Constructionism | The interpretation that it is up to Congress to determine what means are "necessary and proper" in executing its Enumerated Powers |
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What You'll Learn
Levy and collect taxes
The US Constitution grants Congress the power to "lay and collect taxes, duties, imposts and excises" in Article I, Section 8, Clause 1. This clause, also known as the "Taxing and Spending Clause" or "Congressional spending power", authorises Congress to collect taxes to fund essential government functions, such as welfare aid and military expenditures. This power is subject to a few express limitations and has been curtailed by judicial decisions regarding the manner, objects, and subject matter of taxation.
The scope of Congress's taxing power has been interpreted broadly by the courts, allowing for the imposition of taxes on individuals and businesses to raise revenue for federal debts, common defence, and the general welfare of the United States. This power is not without limits, as seen in the case of United States v. Constantine, where the court ruled that Congress could not use taxation to punish liquor dealers for violating state law.
The Sixteenth Amendment further expanded Congress's taxing power by granting it the authority to collect income taxes. Additionally, states have the power to impose and collect taxes, including income, sales, and property taxes, as per their respective tax statutes.
The taxing power of Congress has been used to justify regulatory measures that might otherwise be impermissible under its other enumerated powers. For example, in NFIB v. Sebelius, the Court upheld the individual mandate of the Affordable Care Act, which required individuals to purchase minimum health insurance or pay a penalty. The Court ruled that this was a valid exercise of Congress's taxing power, even though it might have infringed on other regulatory powers.
In conclusion, the power to "lay and collect taxes" granted to Congress in the Constitution has been interpreted broadly by the courts, allowing for the collection of various taxes to fund essential government functions. While this power is subject to some limitations and judicial scrutiny, it remains a critical tool for Congress to raise revenue and regulate certain activities.
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Declare war
The US Constitution grants Congress the power to "declare war" under Article I, Section 8, Clause 11. This power is known as an "expressed" or "enumerated" power, found in 18 clauses within Article I, Section 8.
The "Declare War" clause gives Congress the authority to initiate hostilities, and it is considered an exclusive power, meaning the President cannot declare war without Congressional approval. This clause limits the President's ability to use military force independently, and most scholars agree that the President cannot initiate wars without Congressional consent. However, there is debate surrounding the President's authority to use force without a formal declaration of war.
The War Powers Resolution of 1973 was passed by Congress to address situations where US troops were committed to conflicts without prior Congressional approval. This statute requires the President to notify Congress within 48 hours of committing troops and to withdraw them after 60 days if Congress does not grant an extension.
While the Constitution grants Congress the power to declare war, the President, as Commander-in-Chief, has the power to direct the military after a Congressional declaration of war. This dynamic requires cooperation between the President and Congress in military affairs, with Congress funding or declaring operations and the President directing them.
The interpretation and application of the "Declare War" clause have evolved over time, with Supreme Court cases and presidential actions shaping the understanding of war powers.
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Raise and support an army
The US Constitution grants Congress the power to "raise and support Armies". This power is known as an "expressed" or "enumerated" power, found in Article I, Section 8 of the Constitution.
The Framers of the Constitution gave Congress the power to raise armies to ensure that the legislature had checks on the president's ability to wage war as commander-in-chief of the military. They were cautious of granting the president too much control over the military, having learned from historical experiences with the English monarchy that power could corrupt.
The power to raise and support an army includes the ability to mobilise and fund an army. This is distinct from the power to call on militias, and the Constitution does not limit Congress from raising armies as it sees fit. The funding of armies by Congress acts as a check on the president's war powers, as they do not control military funding and require Congressional approval for military budgets.
The constitutions of at least nine states during the Revolutionary War sanctioned compulsory military service. In 1863, a compulsory draft law was adopted and implemented without challenge. However, the Selective Service Act of 1917 was attacked on the grounds that it deprived states of the right to a "well-regulated militia". The Supreme Court dismissed the objection, stating that compulsory military service did not introduce a "novel doctrine" and was not intended to prohibit states from enforcing civic duties such as jury duty and state militia service.
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Regulate commerce
The US Constitution grants Congress the power to "regulate commerce with foreign nations, and among the several states, and with the Indian tribes". This is known as the Commerce Clause, found in Article I, Section 8, Clause 3 of the Constitution.
The Commerce Clause gives Congress broad authority to regulate interstate commerce and restrict states from impairing it. This clause has been interpreted by the Supreme Court as limiting state power rather than as a source of federal power. For instance, in West Lynn Creamery Inc. v. Healy, the Supreme Court struck down a Massachusetts state tax on milk products because it impeded interstate commercial activity by discriminating against non-Massachusetts citizens and businesses.
The Commerce Clause has also been used by Congress to justify exercising legislative power over the activities of states and their citizens, leading to significant and ongoing controversy regarding the balance of power between the federal government and the states. This controversy stems from the fact that the Constitution does not explicitly define the word "commerce", leaving room for debate over the scope of Congress's powers under this clause. Some argue that "commerce" refers simply to trade or exchange, while others claim that it describes a broader concept of commercial and social intercourse between citizens of different states.
The interpretation of the Commerce Clause has evolved over time. In the early 19th century, the Supreme Court held that intrastate activity could be regulated under the Commerce Clause if it was part of a larger interstate commercial scheme. Later, in the Lochner era, the Court narrowed its interpretation, experimenting with the idea that the clause does not empower Congress to pass laws impeding an individual's right to enter into business contracts.
In the 20th century, the Supreme Court increasingly heard cases on Congress's power to regulate commerce, and its jurisprudence on the interstate Commerce Clause evolved significantly. This evolution in interpretation has resulted in an expansion of Congress's power over interstate commerce, granting it power over the national economy.
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Grant patents and copyrights
The US Constitution grants Congress the power to award patents and copyrights, also known as the Intellectual Property Clause, the Patent Clause, the Copyright Clause, or the Progress Clause. This power is derived from Article I, Section 8, Clause 8 of the Constitution.
The Intellectual Property Clause states that:
> [The Congress shall have Power . . . ] To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.
This clause is intended to facilitate a uniform, national law governing patents and copyrights. Under the Articles of Confederation, creators had to obtain copyrights and patents in multiple states under different standards, a difficult and expensive process that undermined the purpose and effectiveness of the legal regime.
The Framers of the Constitution believed that the advancement of science and useful arts was a higher end served by patents, rather than the patenting of gadgets or trifling devices. In Kendall v. Winsor, it was stated that:
> [The inventor who] withholds his invention from the public, comes not within the policy or objects of the Constitution or acts of Congress.
The ultimate decision to grant protection in the form of copyrights or patents is left to the sound discretion of Congress. The first copyright laws were approved by Congress on May 31, 1790, and President Washington asked Congress to exercise its powers to enact a patent statute in his first State of the Union speech.
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Frequently asked questions
Expressed powers are the specific powers granted to Congress by the United States Constitution.
The expressed powers are primarily listed in Article I, Section 8 of the Constitution.
Examples of expressed powers include the power to levy and collect taxes, borrow money, regulate commerce, declare war, and raise and support armies.
Yes, in addition to expressed powers, Congress also possesses implied powers, which are not explicitly detailed in the Constitution but are inferred as necessary to carry out the expressed powers, and inherent powers, which are those that naturally belong to any national government, such as the power to acquire territory and conduct foreign diplomatic relations.
