The Implied Powers & Non-Legislative Powers of

Congress

Chapter 11 Section 4 & 5

Implied Powers

Necessary & Proper Clause -”to make all laws which shall be necessary and proper for carrying into

execution the foregoing Constitution in the government of the United States, or in any department or officer thereof”

Battle Over Implied Powers

1790-National Bank established Opponents argued the Constitution said

nothing about a national bank Proponents looked to the Necessary &

Proper clause

McCulloch v. Maryland

1816-Maryland placed a tax on all notes issued by banks not charted by the state legislature

McCulloch issued notes without the tax on purpose

Maryland argues the strict constructionist view before the court

Courts ruled in favor of implied powers and stated no State can lawfully tax any agency of the federal government

Doctrine

Principle or fundamental policy Example-implied powers Necessary & Proper clause is also known as

the Elastic Clause

Non-Legislative Powers

The primary function of Congress is to make laws. But the Constitution does give it some other chores – several non-legislative duties – to perform as well

1. Constitutional Amendments

Article V: Congress may propose amendments by a 2/3 vote in each house

Recent petitions by state legislators to Congress for amendments

Examples….

Recent Petitions for Amendments

Balance the Federal Budget every year Prohibit Flag Burning Permit Prayer in Public Schools Outlaw Abortions Prohibit Same-Sex Marriage

2. Electoral Duties

Only exercised in unusual situations 12th Amendment:

House chooses the President when no candidate receives a majority

Senate chooses the V.P. when no candidate receives a majority

Thomas Jefferson (1801) John Quincy Adams (1825)

25th Amendment Filling the Vacancy of the VP President appoints a new VP, Congress must approve

by 2/3 vote

Example of Electoral Duty

President Nixon and Vice President Agnew Agnew Resigned (1972) Nixon chose Ford

"Nixon sought advice from Congressional leaders about a replacement. The advice was unanimous. 'We gave Nixon no choice but Ford,' House Speaker Carl Albert recalled".

The U.S. Senate voted 92 to 3 to confirm Ford on November 27.

3. Impeachment

The Constitution grants Congress the power of removing the President, Vice President, or other civil officers from their office through impeachment.

The House has the sole power to impeach, or bring charges against the individual.

There is then a trial in the Senate. A 2/3 vote of the senators present is needed for conviction.

The penalty for conviction is removal from office.

HISTORICAL DRAMA!

First Impeachment Case Andrew Johnson

House convicted Johnson of violating the Tenure Act and mistreating southern states after the Civil War

Senate acquitted Johnson by one swing vote

HISTORICAL DRAMA!

Second Case: Bill Clinton House approved two counts: perjury, obstruction

of justice, and making false statements relating to the relationship with a White House intern

13 hours of debate in the House! Goes to the Senate for trial…..Senate acquits

Clinton.

HISTORICAL DRAMA!

The Close Call: Richard Nixon A “sure impeachment” Watergate Scandal in 1972

Breaking into Democratic Parties National Headquarters in the Watergate Complex

Investigators uncovered a long list of illegal acts Bribery, Perjury, Income Tax Fraud, Illegal Campaign

Contributions

Nixon Con’t

Nixon is convicted of Obstruction of justice, abuse of power, failure to

respond to the committee’s subpoenas SUBPOENA

A legal order directing one to appear in court and/or to produce certain evidence

Obvious the House would charge to impeach and the Senate would convict

Most serious violation of the public’s trust in U.S. History

4. Executive Powers

Appointments All major appointments made

by the President must be confirmed by the Senate by majority vote.

Only 12 of 600 Cabinet appointments to date have been declined.

“Senatorial courtesy” is the practice in which the Senate will turn down an appointment if it is opposed by a senator of the President’s party from the State involved.

Treaties The President makes treaties

“by and with the Advice and Consent of the Senate,... provided two thirds of the Senators present concur.”

Presently, the President often consults members of the Senate Foreign Relations Committee.

5. Investigatory Powers

Congress may choose to conduct investigations through its standing committees

for several reasons: (1) to gather information useful to Congress in the making of some legislation; (2) to oversee the operations of various executive branch agencies;

(3) to focus public attention on a particular subject;

(4) to expose the questionable activities of public officials or private persons;

(5) to promote the particular interests of some members of Congress.

Quick Quiz

List Three of the Five NON LEGISLATIVE POWERS