Congressional Powers

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General Welfare Clause:
Article I, Section 8, clause I grants Congress power to “lay and collect Taxes…to pay the Debts and provide for the common Defense and general Welfare of the United States.”

Constitutional Amendment:
Article V of the Constitution spells out the rigorous requirements for passing a Constitutional Amendment. The so-called Congressional Pay Limitation Amendment of 1992, The Twenty-Seventh Amendment, is the most recent to be passed.

Article I of the Constitution grants Congress its powers, and Section 8 provides a laundry list of these powers. 

Some of the more important powers specifically granted to Congress include the power to borrow money; to regulate commerce (Commerce Clause – see Chapter 2); to coin money; to establish Federal courts below the Supreme Court; to establish an Army and a Navy; to tax and spend (General Welfare Clause); to declare war; to “make all Laws which shall be necessary and proper” (Necessary and Proper Clause – see Subchapter 1). Except for the powers expressly granted in Article I, or a Constitutional amendment, or those therein implied, Congress cannot make any act.

The Tenth Amendment to the Constitution, (passed in 1791), was intended to limit the powers granted Congress in Article I. It reads:

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.

The Tenth Amendment means that Congress cannot force a state to pass any regulations or legislation. In other words, we saw in Subject 1 that Congress could not pass a 55 mile per hour speed limit. The Tenth Amendment means Congress also cannot directly compel a state to pass such a limit. Thus, the Tenth Amendment was intended to prevent a strong Federal government from overreaching into areas thought to be the sole domain of each state. This protection from Congressional meddling, however, is not as powerful as it might first appear.

The General Welfare Clause is quite broad, and permits Congress to create any tax and spend monies on any program that they believe will serve the general welfare of the citizens of the various states. There is one crucial limitation. While Congress may tax and spend for the general welfare, they may not merely pass laws aimed to serve the general welfare.

EXAMPLE: After years of study Congress finally concludes that cigarette smoke really does harm smokers and those around them. In an effort to serve the general welfare, Congress passes a law banning the manufacture, sale, possession or use of cigarettes in any state. The law would exceed Congressional authority under the General Welfare Clause and would be struck down as an unconstitutional exercise of power. (Note that while Congress may not be able to pass this law under the general welfare clause, they may pass this same law under a different power, i.e., see Commerce Clause.)

Congressional power to legislate pursuant to the General Welfare Clause, however, may lead to troublesome results because it may provide Congress the ability to circumvent limitations on its authority, i.e., by using its spending power to achieve its goals.

EXAMPLE: Not easily discouraged, Congress decides to impose a $10 per pack tax on cigarettes and to spend the proceeds on tobacco education and cancer research. The laws imposing the tax and establishing the educational and research programs would be valid under the General Welfare Clause.

It might not be immediately obvious that the power to tax and spend for the general welfare could actually be used in the way indicated by the hypothetical above. But in 1987 the Supreme Court handed down its decision in South Dakota v. Dole, 483 U.S. 203 (1987) which addressed 23 U.S.C. § 158, a law mandating that the Secretary of Transportation withhold federal highway funds from states which set their drinking age at less than 21-years-old. The Court held that:

“Incident [to the power of the General Welfare Clause], Congress may attach conditions on the receipt of federal funds, and has repeatedly employed the power ‘to further broad policy objectives by conditioning receipt of federal moneys upon compliance by the recipient with federal statutory and administrative directives.’” -South Dakota, at 206, quoting Fullilove v. Klutznick, 448 U.S. 448, 474 (1980)

In other words, Congress can attach “strings” to money given to states in order to encourage states to comply with Congress’ wishes.

Almost two decades after Dole, in another popularly-followed case, the Court reiterated its position. 

Four performance artists denied funding by the National Endowment for the Arts were upset concerning certain grant-making procedures detailed in 20 U.S.C.S. § 954 (d)(1), the National Foundation on the Arts and Humanities Act. 

The artists argued that language in the Act violated their First Amendment rights by requiring that “general standards of decency and respect” be taken into consideration when making awards (see Chapter 5). The Court observed that the NEA’s resources were limited, that it denied most of the grant applications received, and that the basic assumption was that the NEA would grant awards according to some measure of artistic worth, making absolute neutrality inconceivable. National Endowment for the Arts v. Finley, 524 U.S. 569, 585 (1998), citing Advocates for the Arts v. Thomson, 532 F.2d 792 (1976). Ultimately, the Court concluded that the language regarding “decency and respect” was not an overreaching of Congressional authority, but merely a condition imposed on the distribution of funds.

So while Article I, in granting Congress its powers, may limit it to merely taxing and spending for the general welfare, and the Tenth Amendment may appear to further limit Congressional power, Dole, Finley and a string of other cases make clear that within the workings of our Federalist system it nonetheless holds true that “he who pays the piper calls the tune.”

EXAMPLE: There are many states in the U.S. that do not require motorcycle riders to wear helmets. Congress could decide to exert its influence to help states without such laws "see the light" by attaching strings to federal monies. For example, Congress could require states to have a helmet law in order to qualify for federal funding which helps state universities.

The Fourteenth Amendment, passed in 1868, affects a larger part of the Constitution than most amendments because it contains both the Due Process Clause (see Chapter 3) and the Equal Protection Clause (see Chapter 4). For our purposes here, it is important to note that Section 5 of the Fourteenth Amendment grants Congress the “power to enforce” the provisions of that Amendment, which may include providing additional remedies to those recognized by courts, but does not permit Congress to expand any rights or create any new rights.

As a final step in understanding the workings of the Congress within the federalist system, note that Congress may delegate to the other branches of the Federal government any legislative powers granted to it by the Constitution. Although, in so doing, Congress is required to provide some intelligible principles to guide the delegee’s use of discretion. In over half a century, no act of Congressional delegation has been struck down as unconstitutional. 

EXAMPLE: Congress, tired of dealing with the headaches of the federal court system, delegates to the President “the power to establish and change rules of procedure for the federal courts, such rules to be subject to the historic principles which have guided our nation’s courts since their inception.” While the guidance provided is minimal, it does provide an intelligible principle; therefore, it is unlikely that a court would strike it down on non-delegation grounds. 

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