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Legislative Powers - Further Readings

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Governmental Structure
During the short period of governance under the Articles of Confederation theUnited States learned a valuable lesson. In order for a democratic government to function there must be a central governing body and that body must be granted a minimum amount of authority. After the Revolutionary War there was justifiable concern regarding the structure of government and, in particular, how much power would be allocated to the central government. Under the Articles the founders satisfied their fear of tyrannical government by denying the central government rudimentary authorities such as the power to raise or collect taxes, the power to coin money, and the power to provide for the common peace and defense of the nation. The weakness of the federal government becamemanifest in Shay's Rebellion in which the federal government proved incapableof quelling a small uprising of farmers seeking compensation for war debts.
Congressional Powers
One of the intentions of the founders in designing a new constitution was toensure that the federal government had sufficient power to run the country. The delicate task they faced was that of striking a compromise between federalpower and individual and states' rights. One of the strategies the foundersemployed to maintain this balance was to use ambiguous wording in the variousprovisions of the document. They realized that they could not possibly anticipate every conflict that would arise over the issue of power. The founders therefore structured government in such a way that competing forces would workagainst each other to resolve conflicts over power. Although the founders realized that many of the specific conflicts over power would be resolved as they arose, they were forced to define the basic powers of government. The Constitution enumerates, or explicitly defines, the legislative powers granted tothe legislative branch in Article I, Section 8. Here Congress is granted thepower to tax, regulate commerce, provide a common currency, and raise and support an army and navy. The Constitution also grants Congress the power to enact laws "necessary and proper" to execute its constitutional authority. Thisis known as the "elastic" or "necessary and proper" clause. It is perhaps the most controversial of the enumerated powers granted to Congress as it renders a subjective range to legislative power.
Apart from the Constitution, the powers of the legislative branch have been defined, in large part, by the Supreme Court. Though it is often presumed thatthe Constitution granted the Supreme Court the power to review legislative statutes for their constitutionality, the power of "judicial review" was in fact claimed by the Court in Marbury v. Madison (1803). It was here thatChief Justice John Marshall held that it is the power of the Supreme Court to determine whether acts passed by Congress and the president were consistentwith the Constitution. The issues that the Supreme Court has been called upon to resolve concerning the parameters of legislative power center around therelationship between Congress and the states, and the relationship between Congress and the president.
Legislative Powers and the States
The landmark case which essentially determined whether Congress would have constitutional authority to govern the various states of the union was McCulloch v. Maryland (1819). On the surface the Court was to determine whether Maryland had the power to tax a national bank. However, Chief Justice Marshall, who is to the Supreme Court what George Washington is to the presidency,chose to address the broader issue of legislative versus state power in hishistoric opinion. Marshall's opinion would set the precedent for defining therange of the "necessary and proper" clause of Article I, Section 8 of the Constitution. In effect, Marshall ruled that when state and federal laws conflicted, states must defer to the federal statute. "The government of the UnitedStates, though limited in its powers, is supreme; and its laws, when made inpursuance of the Constitution, form the supreme law of the land" (McCulloch). This ruling served to clarify what had been presumed to be the implied range of legislative power vis-a-vis the states outlined in the Constitution.
The Court has elsewhere upheld congressional rule over state law in SouthCarolina v. Katzenbach (1966). Here Southern states headed by South Carolina challenged the power of Congress to enforce provisions of the Voting Rights Act of 1965 which was designed to eliminate discrimination against black voters. In the Civil War, amendments to the Constitution authorized Congress to enforce the amendments "by appropriate legislation." In this case the Voting Rights Act was an "appropriate" means of enforcing the prohibition of discrimination against voting qualifications on the basis of race provided by theFifteenth Amendment. South Carolina requested that Nicholas Katzenbach, the United States Attorney General at the time, be prohibited from enforcing sections of the Voting Rights Act on the grounds that it violated the Tenth Amendment. The Tenth Amendment states that the powers not delegated to the federalgovernment "are reserved to the states." South Carolina claimed that Congresshad legislated in an area, election laws, that had been reserved to the states. The Supreme Court ruled that the Voting Rights Act was an "appropriate" means of enforcing the provisions of the Fifteenth Amendment. This decision made it clear that the legislature's power to enforce Constitutional Amendmentswould take precedent over state's rights.
The balance of power between the federal and state governments has also beenaffected by policies made "outside" the Constitution. The arrangements that Congress makes with other countries through treaties can significantly imposeupon state power. The question of whether this is constitutionally justifiedhas been a subject of legal controversy. Congressional authority over arrangements made with foreign nations through treaties with regards to state authority was addressed by the Court in Missouri v. Holland (1920). In 1916the United States had entered into a treaty with Great Britain designed to save certain species of birds from extinction. The subsequent Migratory Bird Treaty of 1918 authorized the regulation of killing, capturing, and selling ofbirds specified in the treaty. The state of Missouri challenged the act on the ground that it violated its Tenth Amendment rights. Justice Oliver WendellHolmes wrote the opinion of the Court which held that the treaty did not violate the constitutional balance of power between the federal and state governments. However, the states had justifiable fears that the United States was granted the jurisdiction by this case to enter into treaties that would violatestates' rights. To calm these fears a Constitutional Amendment was proposedby Senator John Bricker (the Bricker Amendment) the basic design of which wasto protect states' rights against policies made by treaties with foreign nations. Although a revised version of the amendment failed by only one vote inthe Senate, the concerns of the states were clearly acknowledged by Congress.
Recently the states have attempted to reclaim some of the power they have lost to Congress by imposing term limits on members of Congress. There seemed tobe a legitimate opportunity for the states to succeed given that the membersof the 104th Congress had campaigned in favor of term limits in their "Contract With America." However, Congress failed to pass a constitutional amendment enforcing term limits on its members, which forced states to take the initiative. Arkansas passed a state statute limiting the terms of members of the United States House of Representatives to six years and the terms of United States Senators to 12 years. In U.S. Term Limits v. Thornton (1995) theCourt ruled that Arkansas did not have the authority to determine the qualifications for service in the United States Congress. Justice John Paul Stevensexplained that the Constitution already provides the qualifications for service in Article I, Sections 2, 4, and 6 and any attempt by the states to alterthese qualifications was unconstitutional. Justice Stevens held that the Arkansas petitioners' attempt to limit the terms of members of Congress "must fall because it is an indirect attempt to evade the Qualifications Clauses' requirements and trivializes the basic democratic principles underlying those Clauses" (Thornton).
Legislative Powers and the President
In Immigration and Naturalization Service v. Chadha (1983) the range of legislative power in relation to that of the executive came under review. The case called into question the power of Congress to include legislation provisions that would enable the legislature to negate the president's or others' enforcement of legislation should the executive deviate from what Congressconsidered to be the design of the law. This practice, know as the "legislative veto," was declared unconstitutional in Chadha on the ground that it overstepped the boundaries of congressional authority in the realm of law making. The Immigration and Naturalization Act had granted the Attorney General the authority to make decisions concerning whether deportable aliens couldbe permitted to remain in the country. However, the act also included a provision that enabled Congress to override the decisions made by the Attorney General. In this case the Attorney General had permitted Chadha to remain in thecountry while Congress elected to deport him. The Court ruled that Congressdid not have the authority to veto enforcement decisions after legislation had been passed. Despite the efforts by the Court to curtail the use of the legislative veto it is still commonly practiced by Congress today.
The relationship of power between the president and Congress has also been defined by the ability of Congress to delegate power to the executive. Delegation power pertains to the activities of which Congress authorized the president and agencies to engage in to meet the objectives of a given piece of legislation. In the Tariff Act of 1922 Congress had delegated to the president thediscretion to raise or lower tariffs in accordance with U.S. foreign trade interests. J. W. Hampton Jr., and Company, a victim of a tariff increase, challenged the constitutionality of this act on the basis that it authorized too much power to the president. In J. W. Hampton Jr., and Co. v. United States (1928) the Court found no constitutional indiscretion with Congress delegating authority to the president to fix tariff rates.
Although the justification for congressional delegation of power to the president was apparent in this case the Court would later place limits on this power. In Panama Refining Co. v. Ryan (1935) the Court held that specificparameters must be laid down in the delegation of power to the president toenforce legislative statutes. In this case the president was given the discretion to set ceilings on crude oil production in order to equalize supply anddemand fluctuations between states. Because of the Great Depression Congressseemed justified in granting such broad latitude to the president to regulateinterstate oil transactions. The Court, however, did not see it this way finding that Congress must set specific parameters on the delegation of power tothe president and agencies to enforce laws.
The delegation power of Congress recently came under the scrutiny of the Court in a case involving the constitutionality of the line-item veto. The Line Item Veto Act, which granted the power to the president to alter legislation after passage, was challenged by Senator Robert Byrd in Raines v. Byrd(1997). Although the act only granted the president authority to strike certain sections of appropriations bills, those who voted against the measure feared an overextension of executive power over the legislature. Senator Byrd andothers argued that the act violated their Article I voting power in that laws that they had approved could be subsequently nullified by the president under the act. The senators claimed that the act put them in "a position of unanticipated and unwelcome subservience to the president" (Byrd). Although the Court agreed with the reasoning of the petitioners, it could not nullify the statute because the members of Congress who objected to the line-item veto andfiled suit did not provide sufficient evidence of injury. In other words, there had yet to be a line-item veto to which they were constitutionally entitled to object. However in Clinton v. City of New York (1998) the Courtruled that the power delegated to the president in the Line Item Veto Act wasunconstitutional.
Although the majority of the legal debates involving legislative powers can be divided into the general categories of legislative power versus state powerand legislative power versus presidential power, the Court has also resolvedconstitutional matters regarding legislative investigative powers. During the peak of the Cold War there was a growing concern that members of the Communist party in the United States were undermining American democracy. In the minds of many Americans the efforts by members of Congress and, in particular the often unjustified allegations of Senator Joseph McCarthy, to expose Communist party activity constituted a violation of civil rights. Congress therefore held a number of investigative hearings in an effort to incriminate "un-American" activities. In Watkins v. United States (1957) Chief Justice Earl Warren ruled that although Congress has the authority to conduct hearingsas part of the legislative process it does not have the authority to probe into the private affairs of individuals. "There is no general authority to expose the private affairs of individuals without justification in terms of the functions of the Congress" (Watkins).
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