Constitution Class Handout
Instructor: Douglas V. Gibbs
douglasvgibbs@reagan.com
Tuesdays at 6:00 pm
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Lesson 02
Legislative Powers
Establishing the
Legislative Branch
Lesson 02
Legislative Powers
Article
I, Section 1: All Legislative Powers herein granted shall be vested in a
Congress of the United States, which shall consist of a Senate and House of
Representatives.
Article
I establishes the Legislative Branch of the federal government. Article I, Section 1 of the U.S. Constitution
establishes the two parts of Congress, and grants all legislative powers to the
two houses of Congress. When studying
the language used in Article I, Section 1, the original intent by the Founding
Fathers becomes clear.
The
first word in the first section of Article I is the word “all.” The fascinating thing about the word “all” is
that it means, as shocking as it may seem, “all.”
The
following words are “legislative powers.” Legislative powers are the ability to make
law, modify law, repeal law, and anything else that has to do with affecting
law.
The
next word is “herein,” which strangely enough means “here in,” as in “here in
this constitution.”
The
word “granted” follows “herein.”
“Granted” is defined as “to give,” or “to allow,” or more specifically
“to legally transfer.” If powers are
granted, then there must be a “grantor,” as well. As we learned in our discussion regarding The
Preamble, the “grantor” in this case is the States.
“Shall
be” is definitive. In other words, the
word “shall” does not mean “ought to,” or “maybe.” “Shall” means that “it is,” or “it will be.”
“Vested”
is much like “granted.” Vested is a
legal transfer of something, or in this case, an allowance to have legislative
powers at the federal level.
The
Congress of the United States is the legislative branch of the
federal government, and this clause indicates that not only will the Congress
be granted all legislative powers given to the federal government, but that the
branch of government consists of two houses; a Senate and House of
Representatives.
So
let’s review. All legislative powers,
according to this clause, are granted to the Congress by the States for the
purpose of making law, modifying law, or repealing law. The powers are herein granted, which means
that the laws must fall within the authorities granted by the text of the U.S.
Constitution. In other words, laws made
must remain consistent with the “powers herein granted.”
When
one considers this clause, it becomes clear that when members of the judiciary
legislates from the bench, or the President issues an executive order to modify
a law, such action is unconstitutional.
After all, “all legislative powers” were granted to the Congress, not to
the judicial branch, or the Executive branch.
Since
all legislative powers belong to the Congress, it would also then be reasonable
to consider any regulations by federal departments that are not in line with
laws made by the Congress that are in line with the authorities granted by the
Constitution to be unconstitutional as well.
Once again, all legislative powers belong to the Congress, therefore any
“legislative actions” by regulatory agencies are not in line with the original
intent.
Once
again, we must be reminded of who gave the federal government those powers
herein the Constitution in the first place? Those powers that the federal
government has were “granted” by someone.
The authorities the federal government enjoys were granted by the
States. “We The People of the United
States” granted those powers to the federal government. Therefore, if the federal government acts in
a manner that is not consistent with the contract between the States and the
U.S. Government, the States have the option to ignore those unconstitutional
actions by the federal government. This
action of ignoring unconstitutional law is the States’ way of being the final
arbiters of the Constitution. The term
for this kind of action by a State is “nullification,” which we
will go into more detail of when we get to Article VI.
Terms:
Congress
of the United States: The legislative branch of the
federal government which consists of two houses; a Senate and House of
Representatives. The Congress is the
only part of the federal government granted the authority of legislative
powers.
Granted:
To
confer, give, or bestow. A gift of legal rights or privileges, or a recognition
of asserted rights, as in treaty. To
legally transfer.
Legislative
Powers: The ability to make law, modify law, repeal law,
and anything else that has to do with affecting law.
Nullification:
State power to ignore unconstitutional federal law.
Questions
for Discussion:
1. If only Congress can make law, then why do
some politicians believe that Executive Orders can modify law, or that
regulatory agencies can create new regulations to enforce laws that were never
passed by Congress?
2. The word “granted” reminds us that all powers
once belonged to the States, and some of those authorities were “granted” to
the federal government for the purpose of carrying out the tasks necessary for
the protection, preservation, and promotion of the union. If the federal government was created by the
States, then how can statists justify their belief that all federal laws trump
all State laws?
3. Why do you think the Congress has two
legislative houses?
Resources:
Free
Dictionary by Farlex; http://legal-dictionary.thefreedictionary.com/Grant
Larry
Schweikart and Michael Allen, A Patriot’s History of the United States; New
York: Sentinel (2004).
Madison’s
Notes on the Constitutional Convention, Avalon Project, Yale University: http://avalon.law.yale.edu/subject_menus/debcont.asp
Article
I, Section 2; House of Representatives
Article
I, Section 2 establishes, and defines, the House of Representatives. The members of the House of Representatives
are divided among the States proportionally.
As it is today, The House of Representatives was the voice of the people
in the federal government. Each
Representative is chosen to serve for two years, which means every two years
every Representative is up for re-election, if they choose to run.
This
clause establishes that to be a Representative the candidate must be at least
twenty-five years of age, and been a citizen of the United States for at least
seven years. The age is lower than for
Senators. Representatives were not
expected to be as politically savvy as the Senators, and tended to have less
experience. The age requirement simply
reflected that. The younger someone is, the less wisdom and
experience they tend to have. Political
knowledge came with age, the founder’s reasoned, so the age for being a
representative was not as high as with a Senator.
Divided
allegiance was a serious concern to the Founding Fathers, so the reasoning for
the Representatives to have been citizens of the United States for at least
seven years was largely in order to ensure that the Representative had no split
loyalties. Seven years, for a
Representative, was assumed to have been long enough for the Representative to
have thrown off any allegiances to other nations.
In
the third clause of Article I, Section 2, is the 3/5s clause, which was changed
by the 14th Amendment following the American Civil War.
The
Southern States used slaves for their agricultural economies. The southern states were needed to ratify the
new constitution. As a condition for
ratifying the Constitution, the southern states demanded that the slaves be
counted as one whole person each. The
idea was that if the slaves were counted as whole persons, the apportionment
would tip the scales in their favor through increased representation in the new
United States House of Representatives. After all, the white populations in the
southern states were lower in number when compared to the northern states due
to their rural nature.
The
Northern States, under the heavy influence of merchants, political elitists,
and a group of abolitionists, wanted the slaves counted as "zero" in
order to reduce the number of representatives the southern states would
receive, which would give the majority to the northern states, thus giving the
north more legislative power. With this
additional voting power in the House of Representatives, the northern states
sought to influence the federal government through legislation. The plan was to use their legislative power
to tyrannically force the southern states into submission.
In
the interest of compromise, to convince the southern states to ratify the
constitution, while giving the northern states the satisfaction that the
southern states did not get exactly what they wanted, the decision was made
that slaves would be counted as 3/5 of a whole person for the sake of
apportionment. In other words, it was not a declaration that they believed
blacks to be less than a person, but simply to affect the census in such a way
that too much power through apportionment would not be given to either The
North or The South, while also ensuring that the Constitution got ratified.
Article
I, Section 2, Clause 3 also establishes the census, requiring a head count be
taken once every ten years. The census
was authorized in order to determine the enumeration for establishing the
number of Representatives each state would receive. The clause also indicates that the number of
Representatives shall not exceed one for every thirty thousand. This means that there can not be more than
one Representative for a district of thirty thousand. However, it does not indicate that there must
be one Representative per thirty thousand.
If that was the case, we would have thousands of Representatives.
Article
I, Section 2, Clause 4 states that whenever vacancies happen in the House of
Representatives, it is the duty of the Executive Authority to issue Writs of
Election to fill such vacancies. What
this means is that the Governors of the States have the duty to ensure there is
a special election to fill any vacancies that may happen in the House of
Representatives.
The
House of Representatives chooses for itself its Speaker of the House, and other
officers.
According
to Article I, Section 2, Clause 5, the House of Representatives has the sole
power of impeachment. To
impeach, then, is a power that belongs to the voice of the people.
Later
in the Constitution, specifically in Section 7 of Article I, we also learn that
all bills for raising revenue shall originate in the House of Representatives.
What that does is give the House the purse strings of the federal government,
which in turn gives The People (remember, the House is the people’s voice in
the federal government) the ability to stop anything they feel necessary to
stop, by simply defunding it.
Questions
for Discussion:
1. Why do you think representatives are only
elected for two years?
2. Why is it significant that only the House can
originate bills for raising revenue?
3. Why is the power of impeachment belonging to
the House so important?
Resources:
Madison’s
Notes on the Constitutional Convention, Avalon Project, Yale University: http://avalon.law.yale.edu/subject_menus/debcont.asp
Philip
B. Kurland and Ralph Lerner, The Founder’s Constitution - Volume Two - Preamble
through Article I, Section 8, Clause 4; Indianapolis: Liberty Fund (1987).
Article
I, Section 3 - The U.S. Senate
Article
I, Section 3 establishes and defines the U.S. Senate. The representation of the States in the U.S.
Senate is equal, two per State. The
Senators serve for six years, which means that every two years an election is
held for one-third of the Senator’s seats.
The required minimum age of a Senator is five years older than that of a
Representative, giving us a clue that the importance of life experience was
considered by the Founding Fathers to be more important in the U.S.
Senate. Allegiance to the United States
is also more important in the U.S. Senate, since Article I, Section 3, Clause 3
indicates that Senators need to be nine years a citizen of the United States,
rather than the seven required of Representatives.
Article
I, Section 3, Clause 4 establishes the Vice President as the President of the
Senate. The Vice President, though a
member of the Executive Branch, is also connected to the Legislative
Branch. The Vice President may preside
over the sessions of the U.S. Senate, and even participate in the debates, but
in the end, the Vice President has no vote in the U.S. Senate, except as the
tie-breaking vote. During the early days
of our nation the Vice President attended sessions of the U.S. Senate and joined the debate.
As
with the House of Representatives, the Senate chooses its own officers. One of those officers is the President
pro tempore, which is the President of the Senate when the Vice
President is not present.
The
House of Representatives has the sole power of impeachment. Article I, Section 3, Clause 6 gives the U.S.
Senate the authority to try all impeachments.
No conviction can be reached unless two-thirds of the U.S. Senate
membership is present. Impeachment
cannot extend further than the removal of the impeached from office, and the
disqualification to hold any office in the future. However, a legal case can still be brought
against the convicted from other sources, according to the law.
U.S.
Senators were originally appointed by the legislatures of the individual
States. This made the Senate the voice
of the States in the federal government.
The appointment of U.S. Senators was changed in 1913 through the 17th
Amendment. At that time, the choosing of
the U.S. Senators was given over to the popular vote of the people.
The
17th Amendment changed the dynamics of our governmental system. Note that most everything the Executive
Branch does is subject to the consent of the Senate. The Senate ratifies
treaties, holds hearings for any appointments the Executive Branch nominates,
and the Senate holds the sole power for holding hearings on impeachments. This is because the federal government is
subject to approval by the States. The
States granted the federal government its powers in the first place, after all.
The
House of Representatives, being the voice of the people, and the Senate being
the voice of the States, also served as a check and balance. The people, through the House, checked the
States via the Senate, and vice versa.
Together, both houses also have the ability to override a veto with a
2/3 vote. This system was designed to enable the People and the States to
constrain each other through their appropriate congressional houses, and to
constrain the executive together through the power of a vote.
Terms:
Impeachment:
To charge with misconduct. Formal
process that may lead to removal of an official accused of unlawful activity;
impeachment does not mean the removal from office, though removal from office
is often the result of impeachment proceedings.
President
pro tempore:
Second highest ranking official of the United States Senate. Vice
President is President of the Senate and the highest-ranking official of the
Senate despite not being a member of the body. During the Vice President's
absence, the president pro tempore presides over its sessions or appoints
another senator to do so. The president pro tempore is elected by the Senate
and is customarily the most senior senator in the majority party.
Questions
for Discussion:
1. As President of the Senate, what kind of role
should the Vice President play in the day to day activities of the United
States Senate?
2. Why do you think the House of Representatives
has the sole power of impeachment, but the Senate has the task of hearing the
case?
3. How are the dynamics of our governmental
system different in relation to how the Senators are appointed, or voted for?
4. How was the Senate expected to check the
House of Representatives, and work together with the House to check the
Executive and Judiciary?
Resources:
Madison’s
Notes on the Constitutional Convention, Avalon Project, Yale University: http://avalon.law.yale.edu/subject_menus/debcont.asp
Article
I, Section 4; Elections for Senators and Representatives
Article
I, Section 4 establishes that each State may have its own methods for electing
members of the Congress, and mandates, or requirements, and that Congress must
meet at least once per year. This means that it is up to the State Legislatures
to make the rules for elections, including the federal elections held in their
State. Understanding this, it becomes
clear that when the hanging chad controversy arose during the year 2000
Election that pitted Al Gore against George W. Bush, the case should have
remained with the state legislature to decide on, and should have never gone to
the courts.
In
Clause 1 of Section 4, though the Constitution specifically gives the times,
places and manner of holding elections to the State’s legislatures, the United
States Congress is given the ability to pass laws to alter parts of these
procedures. When Congress acts upon this
authority, it is often in a manner to make an election practice uniform among
the States. Note that Congress is not
given that ability in regards to the places of choosing Senators. Remember, the United States Senators were
appointed by the State Legislatures at that time. Appointment of Senators by the States was
changed to a vote by the people by the 17th Amendment in 1913.
Clause
2 requires for Congress to assemble at least once per year. The day of their first meeting was changed
from December to January by the Twentieth Amendment.
Questions
for Discussion:
1. Why do you think the authority for
prescribing the times, places, and manner of holding elections was given to the
State Legislatures?
2. Why was Congress given the allowance to pass
laws that may make or alter such regulations?
3. Why was the federal government prohibited
from influencing the places for choosing Senators?
Resources:
Madison’s
Notes on the Constitutional Convention, Avalon Project, Yale University: http://avalon.law.yale.edu/subject_menus/debcont.asp
Article
I, Section 5; Procedure
Article
I, Section 5 requires Congress to have a minimum number of members present in
order to do business. That majority
constitutes a quorum, and if the Congress deems it necessary, may
set fines for members who do not show up. The houses of Congress may remain in
session, during which no formal business is conducted because the house does
not have a quorum, so as to prevent executive actions that may be carried out
during recess. This kind of session is
called a pro forma session.
USE
EXAMPLE OF OBAMA’S RECESS APPOINTMENTS
Section
5 also states that each house may have its own rules, keep a journal to record
proceedings and votes, and that neither house may adjourn without
the permission of the other. Section 5 also establishes that if a member of a
house does not follow the established rules, the house may punish its members
for disorderly behavior, and by a two thirds vote may actually expel a member
from Congress.
The
establishment of rules, holding a hearing in regards to the breaking of those
rules, and punishing a member for his behavior, as set forth by Article I,
Section 5, was recently used when Charles Rangel broke the rules of the House
of Representatives. He faced a panel for
his actions, and was punished by censure.
The
mandate to keep a journal to record proceedings and votes was included in this
section because the Founders wanted government to be transparent, accessible,
and accountable to the people.
Terms:
Adjourn:
Suspend proceedings to a later time and/or place.
Censure:
Procedure for publicly reprimanding a public official for inappropriate
behavior. There are normally no legal consequences. Censure is not mentioned in
the Constitution, but is a procedure devised by the legislature as a tool for
formal condemnation of a member of the congressional body.
Pro
Forma Session: A session in either house of the United
States Congress at which no formal business is expected to be conducted, so as
to fulfill the obligation "that neither chamber can adjourn for more than
three days without the consent of the other." Pro forma sessions are also used to prevent
the President from pocket-vetoing bills, calling the Congress into a special
session, and to prevent the President from making recess appointments.
Quorum:
Minimum number of members of an assembly necessary to conduct the business of
that group.
Questions
for Discussion:
1. To conduct business, the houses of Congress
need a quorum. If they do not have a
majority, they may remain in session through a rule established by Congress
called pro forma. What advantages does pro
forma give the houses of Congress when it comes as serving as a check against
the executive branch?
2. Why do you think neither house can adjourn
without the permission of the other?
3. The houses of Congress establish their own
rules of procedure. If a member breaks
any of these rules, Congress also has the authority to punish the rule
breaker. One type of punishment is
called censure. How is censure an
adequate punishment?
4. How has the concept of transparency changed
over the last two hundred years?
Resources:
Edwin
Mora, “Top Democrat Dodges Question on Constitutionality of Obama Appointments,
Says Pro Forma Sessions Are ‘Games Being Played’,” CNSnews.com (January 6,
2012): http://cnsnews.com/news/article/top-democrat-dodges-question-constitutionality-obama-appointments-says-pro-forma
Joseph
Andrews, A Guide for Learning and Teaching The Declaration of Independence and
The U.S. Constitution - Learning from the Original Texts Using Classical
Learning Methods of the Founders; San Marcos: The Center for Teaching the
Constitution (2010).
Madison’s
Notes on the Constitutional Convention, Avalon Project, Yale University: http://avalon.law.yale.edu/subject_menus/debcont.asp
Article
I, Section 6; Compensation, Privileges, Restrictions
Article
I, Section 6 goes over compensation, and the rules regarding such. Section 6
also establishes that members of Congress may not be detained while traveling
to and from Congress, and that they cannot hold any other office in government
while in Congress. The compensation was
expected to remain low, for the founders did not wish for the compensation to
be so high that it became the motive for seeking office.
Protection
from arrest while traveling to and from Congress was not only a privilege based
on those enjoyed by their counterparts in the British Parliament, but also a
protection from political enemies that may wish to keep certain members of
Congress from voting.
This
section also indicates that no member of Congress shall be appointed to a later
office if while in Congress the office was created, or a raise in pay was
enacted for that office. For example,
the position Secretary of State received a pay raise while Hillary Clinton was
in the Senate, so technically she was not eligible for the position when she
was appointed. To fix this, the Democrats applied the Saxby Fix,
meaning they undid the raise, and Hillary Clinton received the compensation
that was in place before the vote she participated in while in the Senate. The
Saxby Fix, or a Salary rollback, is an unconstitutional action, for the clause
is clear: “No Senator or Representative shall, during the Time for which he was
elected, be appointed to any civil Office under the Authority of the United
States, which shall have been created, or the Emoluments whereof shall have
been increased during such time.”
The
Saxby Fix, or the rollback of the salary, does not change the fact that the
emoluments increased during the time Hillary Clinton was in the U.S. Senate.
Terms:
Saxby
Fix:
Salary rollback. A mechanism by which the President of the United States can
avoid restrictions by the United States Constitution which prohibits the
President from appointing a current or former member of Congress to a position
that was created, or to an office position for which the pay and/or benefits
were increased, during the term for which that member was elected until the
term has expired. First used in 1909, the Saxbe Fix is named for William Saxbe,
a Senator appointed to Attorney General by Nixon in 1973.
Resources:
Madison’s
Notes on the Constitutional Convention, Avalon Project, Yale University: http://avalon.law.yale.edu/subject_menus/debcont.asp
Saxbe,
William B. I've Seen the Elephant: An Autobiography. Kent State University
Press (2000).
Copyright:
Douglas V. Gibbs, 2014
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