The Legislative Branch

Date

The Legislative BranchChapters 10, 11, 12

Congress: Constitutional Principles

✤ Separation of Powers: the Constitution gives Congress the power to make laws. Separating the power to make laws from the power to enforce and the power to review them prevents the misuse of government authority.

✤ Checks and Balances: the Constitution gives Congress a number of powers with which it can check the actions of the executive branch and the judicial branches

✤ Limited Government: Congress can exercise only those powers given to it by the Constitution- and, in doing so, it cannot violate any provision of the Constitution

Bicameral Congress

✤ Historical Reasons: the British Parliament had consisted of two houses since the 1300’s

✤ Practical: to settle the conflict between the Virginia and New Jersey Plans (population vs. equal proportion)

✤ Theoretical: for the houses to have the ability to check on the other, to “diffuse” the power of Congress

Complaints

✤ For more than 200 years now, some people have argued that equal representation of the state in the Senate is undemocratic and should be eliminated equal representation of the states does not reflect the country’s population distribution

✤ The Senate was purposefully created as a body in which the states would be represented as coequal members and partners in the Union, without this compromise there might never have been a Constitution

Terms

✤ Ever since 1789, Congress has met for two-year terms (each term of Congress lasts 2 years)

✤ 20th Amendment: each two-year term starts, “noon of the 3rd day of January”

Sessions

✤ Session of Congress is that period of time during which, each year, Congress assembles and conducts business

✤ There are two sessions to each term of Congress- one each year

✤ session + session = term1 + 1 = 2

✤ Neither house may adjourn ending a session without the consent of the other

✤ The Constitution does give the president the power to prorogue (end, discontinue) a session if the two houses cannot agree on a date

Special Sessions

✤ The President may call Congress into special session if there is an emergency situation

✤ 26 special sessions of Congress have met (the Senate has been called alone 46 times to consider treaties or appointments)

✤ Last special session was called by Harry Truman in 1948 to consider anti-inflation and welfare measures in the aftermath of WWII

✤ The President may threaten to call a special session if the two houses are ready to adjourn but have not addressed or acted on some measure high on his legislative agenda

✤ Fewer now because Congress meets for longer sessions

The House of Representatives

✤ The 435 members of the House represent districts of roughly equal populations but very different characteristics

✤ Serve unlimited 2 year terms

✤ Often described as the branch closest to the people because of the short terms and small districts

Congressional Elections

✤ Tuesday following the first Monday in November in each even-numbered year

✤ Congressional elections that occur in the nonpresidential years are called off-year elections

✤ far more often than not, the party in power (the party of the president) LOSES seats in the off-year elections

Size and Terms

✤ The exact size of the House is set by Congress, not the Constitution; the Constitution provides that the seats in the House shall be apportioned among the States on the basis of their populations

✤ Each state is guaranteed a seat no matter their population (7 states have one rep: Alaska, Delaware, Montana, ND, SD, Vermont, Wyoming)

✤ 2 year terms

Reapportionment

✤ Article I directs Congress to redistribute the seats in the House after each decennial census

✤ Reapportionment Act of 1929:(1) the “permanent size of the House is 435 1:650,000(2) following each census the Census Bureau is to determine the number of seats each State should have(3) when the Bureau is ready the plan is sent to the President, President to Congress(4) If it’s not rejected within 60 days it becomes effective

Elections

✤ Held on the same day in every state by written ballot

✤ Off-year elections: elections held on non-presidential election years; most often the party in power loses seats

Congressional Districts

✤ two different ways to fill seats: single-member district or at-large

✤ in 1842 Congress got rid of the general ticket system, thereafter, all the seats in the House were to filled from single-member districts (technically the states with only one district still fill “at-large”)

✤ each state legislature is responsible for determining districts granted they are:-contiguous territory-population equality-compactness

Gerrymandering

✤ Districts that have been drawn to the advantage of the political party that controls the State’s legislature

✤ Widespread today!

✤ Often takes one of two forms:(1) to concentrate the opposition’s voters in one or a few districts comfortably safe for the dominant party(2) to spread the opposition as thinly as possible among several districts, limiting the opposition’s ability to win anywhere in the region

✤ Main goal: to create as many safe districts as possible

Wesberry v. Sanders, 1964

✤ The Court held that the Constitution demands that the States draw congressional districts of substantially equal populations

✤ “one person one vote” had a huge impact on the reapportionment of Congress, however it is still possible for States to gerrymander

✤ Gerrymandering based on race is unconstitutional (15th Amendment), however United Latin American Citizens v. Perry states there is nothing in the Constitution that says a state cannot do it if the legislature believes it is in its advantage to do so

Qualifications: House

✤ Formal Qualifications:(1) must be at least 25 years of age(2) must have been a citizen of the U.S. for at least seven years(3) must be an inhabitant of the State from which he or she is elected

✤ The House is the judge of “The Elections, Returns, and Qualifications of its Members”; they can challenge the member-elects placement, refuse to seat a member by majority vote, may “punish its Members for disorderly Behavior” and “with Concurrence of two-thirds expel a Member”

✤ Powell v. McCormack: House may not refuse to seat someone if they meet formal qualifications

Senate

✤ Nearly 1/3 of all members of the Senate once served in the House of Representatives, 0% of the Representatives have ever served in the Senate

Size, Election, Terms

✤ The Constitution states that the Senate, “shall be composed of two Senators from each State”

✤ Framers hoped a smaller Senate would be a more enlightened and responsible body, reinforced this hope by giving them longer terms and setting the qualifications for membership in the Senate above those for the House

✤ Because they represent entire states, they represent a larger, more diverse constituency

Size, Election, Terms

✤ Originally chosen by State legislatures until the ratification of the 17th Amendment

✤ Only one Senator is election from any state at any given election making the Senate a “continuous body”

✤ Each Senator is elected at-large

Size, Election, Terms

✤ 6 year terms, no limit on number of terms

✤ Only a 1/3rd of terms expire every two years (continuous body)

✤ Senators are supposed to be less concerned with the interests of a special small locality and more focused on the “big picture” of national interest

✤ More famous

✤ All-time record holder- Robert Byrd (D)- West Virginia, elected to 9 straight terms in the Senate, starting in 1958

Qualifications

✤ Must be at least 30 years of age, citizen of the U.S. for at least 9 years and an inhabitant of the State from which he or she was elected

✤ The Senate may exclude a member by a majority vote, may punish its members for disorderly behavior by majority vote, and with a 2/3 vote may expel a member

✤ 15 members of the Senate have been expelled ever, 14 during the Civil War, a few have resigned

Members of Congress

Personal and Political Backgrounds

✤ NOT a cross section of the American people

✤ Average member: white male in his early 50’s

✤ Median age in the House: 55

✤ Median age in the Senate: 60

✤ Nearly all are married, on average have 2 children, only a few say they do not have religious affiliation (60% Protestant, 30% Catholic, 7% Jewish, one Muslim)

Personal and Political Backgrounds

✤ 1/3 of the House and 1/2 Senators are lawyers, nearly all went to college, 4/5 have a college degree, most have advanced degrees

✤ The average Senator is serving a 2nd term, the typical Representative is on their 4th

✤ Several Senators are former governors, several have held high cabinet positions

The Job

✤ Play 5 Major Roles:(1) Legislators(2) Representatives of their constituents(3) Committee Members(4) Servants of their constituents(5) Politicians

Representatives

✤ Each lawmaker has four broad voting options:Trustee- believes that each question they face must be decided on its own merit, regardless of their constituents

Delegates- agents of those who elected them

Partisans- vote the party line (leading factor)

Politicos- combine all the basic elements (their own views on what is best for the people and the party)

Committee Members

✤ Laws are referred to committees, committees screen them and decided which are ready to go to the floor for consideration

✤ Oversight function- process by which Congress, through its committees, checks to see that the various agencies in the executive branch are working effectively and acting in line with the policies that Congress has set by law

Servants

✤ Try to help people who have various problems with the federal bureaucracy (e.g. Social Security, passports, small business loans, Alec)

Compensation

✤ Senators and Representatives earn 165,200 a year (special positions such as Speaker of the House, president pro temp earn more)

✤ Tax deductions, travel allowances, cheaper health and life insurance, nice retirement plan, franking privilege (mail), free printing of speeches, newsletters, etc.

Compensation

✤ Congress determines its own pay (not during session)

✤ Two limits to the level of Congressional Pay: President’s vetoFear of voter backlash

Membership Privileges

✤ cannot be arrested during their attendance at the session of their respective house except in cases of felony, treason, or breach of the peace

✤ Article I: “for any Speech or Debate in either House, they shall not be questioned in any other Place” e.g. the courtsprotects representatives and senators from suits for libel or slander arising out of their official conduct; to protect the freedom of legislative debate

The Scope of Congressional Powers

Congressional Powers

✤ Congress has only the powers delegated to it by the Constitutionexamples: cannot create a national public school system, require people to vote or attend church, set a minimum age for marriage, etc

✤ CONGRESS HAS THE FOLLOWING POWERS: (1) explicitly in it specific wording- the expressed powers; (2) the implied powers; (3) by the inherent powers

Strict vs. Liberal Construction

✤ Federalists vs. Anti-federalists: just how much power will Congress have and what will those powers be?

✤ Strict constructionists (Tommy J): Congress should only be able to exercise the (1) expressed powers and (2) those implied powers absolutely necessary to carry out the expressed powers---believed that only the states could protect and preserve their own interests

Liberal Constructionists

✤ Alexander Hamilton- favored a more liberal, or broad, interpretation of the Constitution in terms of the powers given to Congress

✤ Historically speaking, the liberal constructionists have won this battle- over the course of time the powers wielded by the federal government have grown

✤ factors responsible for this include: wars, economic crises and other national emergencies (especially in technology and communication), Congress and the president have regarded their powers in broader and broader terms, and generally the American people have agreed with these interpretations of the Constitution

Expressed Powers of Money and Commerce

✤ The ways in which Congress exercises two of its expressed powers- the power to tax and the power to regulate foreign and interstate trade- play a much greater role in the lives of everyone in this country than most of us realize.

The Power to Tax

✤ Article I, Section 8, Clause 1: “To lay and collect Taxes, Duties, Imposts, and Excises, to pay the Debts and provide for the common Defense and general Welfare of the United States...”

Date

Tax Revenue Spending 2010

Limits of the Taxing Power

✤ Congress cannot lay a tax on church services, because a tax would violate the 1st Amendment; nor could it lay a poll tax as a condition for voting in federal elections- for that would violate the 24th Amendment

✤ Congress may only tax for public purposes, not for private benefit, “only to pay the Debts and provide for the common Defense and general Welfare of the United States...”

More Limits on Taxing...

✤ Congress may not tax exports, therefore tariffs may only be levied on goods brought into the country, not going out

✤ Direct taxes (one that must be paid directly to the government by a person on whom it is imposed, i.e. income tax 16th Amendment) must be apportioned among the states according the their population

✤ an indirect tax is one first paid by one person but then passed on to another therefore it is indirectly paid by the second person (like an import tax which would raise the price at the store)

The Borrowing Power

✤ Article I, Section 8, Clause 2 gives Congress the power to, “borrow Money on the credit of the United States”

✤ Congress has put a ceiling on the public debt, but regularly raises it when the debt threatens to overtake it

✤ For decades Congress has practiced deficit financing, which is spending more money than it takes in each year, then borrowing to make up the difference

✤ government’s books have showed a deficit in all by seven years from 1931-1969, and they were red every year from 1969-1998

✤ Balanced Budget Act of 1997- reported modest surpluses in 1998, and larger ones in 1999, 2000, 2001

The Commerce Power

✤ power of Congress to regulate interstate and foreign trade- has proved to be more responsible for the building of a strong and united country than any other provision in the Constitution

✤ Gibbons v. Odgen (1824) - steamboats in NY = power of federal government to regulate interstate commerce

Limits on the All-Powerful Commerce Clause

✤ cannot tax imports

✤ cannot favor the ports of one state over those of any other in the regulation of trade

✤ cannot require that “Vessels bound to, or from, one state, be obliged to enter, clear, or pay Duties in another”

✤ could not interfere with the slave trade until the year 1808

The Currency Power

✤ Congress has the power to coin Money regulate the value of money, states are denied that power

✤ first national notes of legal tender: greenbacks in 1893, finally found to be constitutional in 1871 and 1884

Bankruptcy Power

✤ bankruptcy is the legal proceeding in which the bankrupt’s assets are distributed among those to whom a debt is owed

✤ states and federal government have concurrent power to regulate bankruptcy, however today federal bankruptcy law is so broad it all but excludes the states from the field and nearly all cases are heard in federal district courts

Other Expressed Powers

Foreign Relations Powers

✤ The National Government has greater powers in the field of foreign affairs than in any other area

✤ Congress shares power with the president in this area

✤ Foreign relations power comes from two sources:

✤ from various expressed powers, especially the war powers and the power to regulate foreign commerce

✤ from the fact that the United States is a sovereign state in the world community

War Powers

✤ The Constitution makes the president the commander in chief of the nation’s armed forces, therefore the president dominates the field

✤ Only Congress may declare war

✤ Congress has the power to raise and support armies, to provide and maintain a navy, and to make rules pertaining to the governing of land and naval forces

✤ War Powers Resolution of 1973- Congress claimed the power to restrict the use of American forces in combat where a state of war does not exist

Other Expressed Powers

✤ Naturalization- the process by which citizens of one country become citizens of another

✤ Postal Power- in the Constitution

✤ Copyrights and Patents- copyright is the exclusive right of an author to reproduce, publish, and sell his or her creative work (life of the author plus 70 years); patents grant a person to sole right to manufacture, use, or sell any machine, etc (good for 20 years)

Expressed Powers...

✤ Powers over territories and other areas- Congress has the power to acquire, manage, and dispose of various federal areas; eminent domain

✤ Judicial powers- create all of the federal courts below the Supreme Court and to structure the federal judiciary; power to define federal crimes and set punishment for violators of federal law

Implied Powers

Necessary and Proper Clause

✤ the constitutional basis for ALL implied powers is found in the Necessary and Proper Clause

✤ has often been called the “Elastic Clause” because it has been stretched so far and made to cover so much over the years

McCulloch v. Maryland (1819)

✤ “Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the Constitution, are constitutional.” -John Marshall, Opinion of the Court

The Nonlegislative Powers

Electoral Duties

✤ the House may be called on to elect a president (the 12th Amendment) if no one receives a majority of the electoral votes the top three candidates are chosen between by each state casting a vote, a majority of votes is required for election

✤ the House has twice chosen a president: Jefferson in 1800 and John Q Adams in 1825

✤ similarly, the Senate must choose a vice president, the vote is not by states but by senator with a majority for the full Senate necessary for election

✤ the Senate has chosen a vice president once, Richard Johnson in 1837

25th Amendment...

✤ provides for the filling of a vacancy in the vice presidency; when one occurs, the president nominates a successor, subject to majority bote in both houses

✤ this process has been used twice, Gerald Ford in 1973, and Nelson Rockefeller in 1974

Impeachment

✤ the president, vice president and all civil officers may be removed from office on impeachment for and conviction of, treason, bribery, or other high crimes and misdemenors

✤ the House has the sole power to impeach- accuse- the Senate has the sole power to try- judge- in impeachment cases

✤ impeachment requires only a majority vote in the house; conviction requires a two-thirds vote in the Senate

✤ the Chief Justice presides over the Senate when a president is to be tried

✤ there have been 17 impeachment cases to date, 7 convictions; all 7 being removed were federal judges

Johnson and Clinton

✤ Johnson: troubles with Reconstruction and disagreements with the Radical Republicans caused tension, deliberate violation of the Tenure of Office Act triggered his impeachment out of political revenge; House votes 126-47 to impeach on 11 different articles, falls one vote short of impeachment in the Senate

✤ Clinton: impeached by the House in 1998 for committing perjury and obstruction of justice because of withholding information; House votes 228-206 on one count of perjury and 221-212 on obstruction of justice (partisan voting), 55-45 to acquit on perjury, 50-50 on obstruction

Richard Milhous Nixon

✤ Watergate scandal in 1972, brought to light by the Washington Post, traced all the way up to high-level officers in Nixon’s administration

✤ Investigations reveal long list of illegal acts, including bribery, perjury, income tax fraud, and illegal campaign contributions as well as using the FBI and the IRS for personal and partisan purposes

✤ House Judiciary Committee voted three articles of impeachment against President Nixon in July of 1974, charged with obstruction of justice, abuse of power, and failure to respond to the committee’s subpoenas

✤ When it became clear that the full House would impeach and the Senate would convict, Nixon resigned on August 9th, 1974

Executive Powers

✤ Appointments: all major appointments made by the president must be confirmed by the Senate by majority vote;

✤ appointment of a cabinet member is rarely turned down, only 12 of more than 600 appointments have ever been rejected

✤ federal officers who serve in various states (i.e. US attorneys or federal marshals) fall under the unwritten rule of senatorial courtesy- the Senate will turn down the appointment if the senator from that state objects

✤ Treaties: 2/3 Senate must approve

...

✤ Investigatory Power: Congress has the power to investigate any matter that falls within the scope of its legislative powers, exercised through its standing committees or special committees

✤ Congress may choose to conduct investigations for several reasons, most often inquires are held to (1) gather info useful to Congress in the making of some legislation; (2) oversee the operations of various executive branch agencies; (3) focus public attention on a particular subject; (4) expose the questionable activities of public officials or private persons; (5) promote the particular interests of some members of Congress