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The Congress

Published: April 1, 2018

Capital Hill in Washington D.C.

Below is a brief summary of the structure, powers, and responsibilities of Congress.

The Congress is One of Three Co-equal Branches of the Federal Government

  • The Congress (also known as the Legislative Branch) is one of three co-equal branches of the federal government, along with the presidency (also known as the Executive Branch) and the Supreme Court (also known as the Judicial Branch). 

  • This is not explicitly stated in Article I or indeed anywhere in the Constitution. Rather it is implied from reading the Constitution in its totality.

Congress Consists of Two Chambers (Art.I, § 1)

  • Congress consists of two separate chambers: the House of Representatives and the Senate. 

The House of Representatives (Art.I, § 2; The Permanent Apportionment Act of 1929)

  • Members of the House serve two-year terms with elections being held every even numbered year (i.e. 2018, 2020, 2022, etc).

  • The number of representatives a state has depends on the size of its population, but every state has at least one. 

  • The Permanent Apportionment Act of 1929 fixed the total number of Representatives in the country at 435. 

  • The Act also mandates that the number of representatives a state has shall be recalculated every 10 years on the basis of changes in the populations of the 50 states. 

  • However, the capping of the total number of representatives in the country at 435 combined with the divergent rates of population growth in the 50 states raises an issue of malapportionment of representation in the House.

  • To understand why, consider the following example. The state of Wyoming had an estimated 2017 population of 579,315. These 579,315 people (i.e. the state of Wyoming) had the minimum of one representative, as it is a relatively low population state.

  • On the other hand, California had an estimated 2017 population of 39,536,653 people and had 53 representatives. Doing the math reveals that California has 1 representative for every 745,974.5 residents whereas Montana has 1 representative for every 579,315 residents.

  • This means that residents of Wyoming are relatively over-represented in the House while residents of California are relatively under-represented. Or, put another way, the policy preferences and interests of one resident of Wyoming hold more sway in the House than the interests of one resident of California.​

  • This relative under-representation of residents of some states relative to others has led some legal scholars to propose increasing the number of representatives in the House. Others have countered that doing so would make the House too unwieldy and create practical problems, such as the need for more space on Capital Hill to accommodate the increased number of representatives. 

The Senate (Art. I, § 3)

  • Senators serve six-year terms.

  • Every state has two senators (since there are currently 50 states, the Senate consists of 100 senators).

  • If a vote on new legislation being considered results in a tie, the Vice President of the United States shall cast the tie-breaking vote.

The Presentment Clause (Art. I, § 7, cl. 2; Clinton v. City of New York)

  • Congress alone has the authority to create new legislation. 

  • Once Congress passes a bill, it is sent to the president. If the president approves of the bill s/he will sign it into law. If the president does not want the bill to become law, then s/he can refuse to sign it. When a president chooses not to sign a bill that has been passed by Congress, it is said that the president has "vetoed" the bill. At that point, the Congress can either over-ride the president's veto, if 2/3 of the members of both the House and Senate support the bill or the bill dies.

Borrowing Power (Art. 1, § 8, cl. 2)

  • Congress alone has the power to authorize the incurring of debt by the federal government.

 

The Discipline Clause (Art. 1, § 5, cl. 2)

  • The "discipline clause" of the U.S. Constitution allows each chamber of Congress to determine the rules under which it operates, punish Members for wrongdoing, and to expel a Member if deemed appropriate. 

  • However, the Constitution makes no provision for a mechanism of investigating misconduct or enforcing consistent punishments.

  • So the House created the House Committee on Ethics and authorized it to investigate potential violations of any law, rule, or regulation by a Member of the House and to make recommendations to the House for disciplinary action.

  • The Senate's equivalent is its Select Committee on Ethics. 

The Origination Clause (Art. 1, § 7, cl. 1)

  • The "origination clause" mandates that all bills which propose to raise revenue must originate in the House.

  • However, it also states that the Senate may propose amendments to revenue bills that originated in the House.

  • The Senate has often used this latter part of the clause to work around the restriction on revenue raising bills originating in the Senate: the senators simply take an existing bill that originated in the House, remove its content, and replace it with their own content. By doing so, senators can claim to be merely amending a bill that originated in the House. Such bills are called "shell bills."

The Foreign Emoluments Clause (Art. 1, § 9, cl. 8)

  • The "foreign emoluments clause" states that members of the national government shall not receive gifts or payments from a foreign government without the permission of Congress.

  • The architects of the Constitution included this clause because of their concern that foreign states and monarchs could try to bribe American policymakers, particularly diplomats stationed overseas.

  • However uncertainty remains over exactly who it applies to and what counts as an “emolument.”

  • For example, does the clause apply only to payments and gifts given to a public official or does it also apply to payments made to a business owned by a public official?

  • One could certainly argue that payments by a foreign state to a business owned an American public official may sway her/his decision-making. However, the clause makes no explicit mention of payments to businesses being forbidden, leaving the question unanswered.

  • Several lawsuits have recently been filed against Pres. Trump alleging that he is currently in violation of the clause for accepting such payments to his businesses.

  • The outcomes of these suits may clarify the scope of the Foreign Emoluments Clause.

Impeachment Clauses (Art. 1, § 2, cl. 5; Art. 1, § 3, cl. 6; Art. 1, § 3, cl. 7; Art. 2, § 4; Art. 3, § 1)

  • The House of Representatives alone has the power to impeach the president, vice president, or a supreme court justice. 

  • If the House chooses to impeach the president, the Senate then tries the president and can, with the support of 2/3 of the senators present, remove the president from office.​​

  • The president and vice president can be impeached for treason, bribery, or "other high crimes and misdemeanors." 

  • The inclusion of the imprecise phrase "other high crimes and misdemeanors" gives the House significant latitude to determine what constitutes an impeachable offense. 

The Intellectual Property Clause (Art. 1, § 8, cl. 8)

  • The "intellectual property clause" gives Congress the authority to enact legislation related to the protection of intellectual property (e.g. trademarks, copyrights, and patents). 

The Taxing and Spending Clause (Art. 1, § 8, cl. 1; U.S. v Butler)

  • The "taxing and spending clause" gives Congress the power to impose taxes for the purpose of paying off debt, paying for defense of the country, or providing for the "general welfare of the United States."

  • In US v Butler (1936) the Supreme Court determined that because this clause gives Congress the power to tax and spend for whatever it deems to be in the "general welfare of the United States," Congress has free reign to tax and spend for any purpose it sees fit. 

The Suspension Clause (Art. 1 § 9, cl. 2)

  • A "writ of Habeas Corpus" is a tool courts can use to determine if a an individual has been unlawfully imprisoned.

  • The etymology of the phrase is as follows: a "writ" is an order issued by an institution with juridical authority, such as a court. And the latin phrase "Habeas Corpus" roughly translates to "produce the body." So a "writ of Habeaus Corpus" is an order (a "writ") by a court to the imprisoning entity to bring before it a particular prisoner ("the body").

  • The right of Habeas Corpus allows an individual that has been imprisoned to ask a court to determine whether they are being unlawfully detained by filing an application for a writ of Habeas Corpus.

  • The right of Habeas Corpus has its origins in clause 39 of the Magna Carta ("The Great Charter"), a 13th century document signed by King John of England to make peace with rebel barons.

  • The suspension clause of the Constitution (Art. 1 § 9, cl. 2) states that Congress may NOT suspend the privilege of the Writ of Habeas Corpus except in the event that a rebellion or invasion poses a threat to public safety.  

  • That is, the clause forbids Congress from infringing on prisoners' right to ask a court to determine if they are being unlawfully detained, except in the event of a rebellion or invasion.

  • However, some have argued that recent actions taken by Congress and the Obama administration may undermine this right.

War Powers (Art. 1, § 8, cl. 11; Article II, § 2, cl. 1; The War Powers Act)

Declarations of War

  • The Constitution divides war powers between Congress and the president

  • The War Powers Clause of the Constitution (Art. 1, § 8, cl. 11) gives Congress the power to declare war.

  •  Congress has used its power to declare war 11 times for five different wars. 

  • The first instance was its declaration of war against the British Empire in 1812 which marked the start of the War of 1812.

  • The last time Congress formally declared war was during World War II.

  • On December 8, 1941, Congress resolved to declare war on Japan in response to its attack on Pearl Harbor the day before. This marked America's entry into World War II. You can view the joint resolution declaring war on Japan here.

  • Three days later, Congress would declare war on Germany and Italy. You can view the joint resolution declaring war on Germany here.

  • Then on June 3, 1942, Congress declared war on Bulgaria, Hungary, and Rumania.

  • Congress has not declared war since, despite America's involvement in numerous subsequent conflicts.

  • Some of these authorizations allowed for the use of force in a specific country while others authorized the use of force in a particular region.

  • Congress has passed legislation authorizing the use of military force in Formosa in 1955, the Middle East in 1957, Lebanon in 1983, Iraq in 1991, and Iraq again in 2002

  • In the wake of the 9/11 attacks, one particular authorization used more nebulous language targeting "nations, organizations, or persons."

Conflicts Between Congress and The Presidency

  • Though only Congress can formally declare war, it actually shares war powers with the president.

  • This is because the Commander-in-Chief clause of the U.S. Constitution (Article II, § 2, cl. 1) states that the president is the Commander-in-Chief of the armed forces.

  • This division of war powers between the two branches has often led to tensions as to the president's ability to deploy military forces without congressional assent.

The War Powers Act

  • In the wake of the Kennedy, Johnson, and Nixon administrations successively deploying troops to participate in the Vietnam War without Congressional assent, Congress overrode a veto by President Nixon to pass the 1973 War Powers Act.

  • This Act sought to place limits on the president's authority to deploy troops without approval from Congress.

  • It requires the president to inform Congress of any decision to deploy troops within 48 hours of doing so if such deployment occurs in the absence of a Congressional declaration of war and the troops are deployed into hostilities, a situation in which hostilities appear imminent, in a foreign nation while equipped for combat (except if the deployment is for logistical or training purposes), or in numbers which "substantially enlarge" the number of troops already deployed in a foreign nation that are equipped for combat.  

  • It also requires the president to withdraw troops deployed into hostilities or a situation in which hostilities appear imminent within 60 days if the deployment occurred in the absence of a Congressional declaration of war unless Congress authorizes an extension, has since declared war, or is physically unable to meet because of an attack on the United States. 

  • Presidents that have held office since the passage of this Act have simply disregarded it, arguing that it is an unconstitutional attempt by Congress to limit the war powers granted to the president by the Commander-in-Chief clause.

Ongoing Debate Over War Powers

  • The division of war powers between the two branches continues to be the subject of debate. 

  • The Obama and Trump administrations argued that they had the authority to allow such indirect involvement in the war without Congressional approval.

  • Some Members of Congress disagreed.

  • So in February 2018 several senators presented a war powers resolution that would have required troops in or "affecting" Yemen to withdraw within 30 days. However, the resolution was voted down in March of 2018.