|United States of America|
This article is part of the series:
|Original text of the Constitution|
|Amendments to the Constitution|
|Bill of Rights
I · II · III · IV · V · VI · VII · VIII · IX · X
The Article provides that Congress consists of a House of Representatives and the Senate, establishes the manner of election and qualifications of members of each House, and outlines legislative procedure and enumerates the powers vested in the legislative branch. Finally, it establishes limits on the powers of both Congress and the states.
Each of the first three Articles of the Constitution concern one of the three branches of the federal government. The legislative branch is established under Article One, the executive branch under Article Two, and the judicial branch under Article Three.
Amendments to certain aspects of Article One, unlike amendments to other articles, are explicitly restricted by the Constitution (these restrictions are imposed by Article Five). For example, no amendment made prior to 1808 could affect the first and fourth clauses of Section Nine. The first clause prevented Congress from prohibiting the slave trade until 1808; the fourth barred any direct taxes that were not apportioned among the States according to population.
|“||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.||”|
The "Vesting Clause" grants all the federal government's legislative authority to Congress. Other vesting clauses are found in Articles II and III as well, and differ regarding the branch of government concerned; Article II's vesting clause vests the President with "the executive power" and Article III's vesting clause vests "the judicial power" in the federal judiciary. The Vesting Clauses thus establish the principle of separation of powers by specifically giving to each branch of the federal government only those powers it can exercise and no others. This means that no branch may exercise powers that properly belong to another (e.g., since the legislative power is vested in Congress, the executive and judiciary may not enact laws).
The language "herein granted" in Article I's vesting clause has been interpreted to mean that the powers Congress may exercise are exclusively those specifically provided for in Article I. This contrasts with the general vesting of the executive and judicial powers in Articles II and III in the branches of government those articles govern, which has been interpreted to mean that those branches enjoy "residual" or "implied" powers beyond those specifically mentioned, as contrasted with the Congress, which is vested only with those legislative powers "herein granted;" however, there is substantial contemporary disagreement about the precise extent of the powers conferred by the general vesting clauses.
As a corollary to the fact that Congress, and only Congress, is vested with the legislative power, Congress (in theory) cannot delegate legislative authority to other branches of government (e.g., the Executive Branch), a rule known as the nondelegation doctrine. However, the Supreme Court has ruled that Congress does have latitude to delegate regulatory powers to executive agencies as long as it provides an "intelligible principle" which governs the agency's exercise of the delegated regulatory authority. In practice, the Supreme Court has only invalidated 3 statutes on non-delegation grounds in its history, all 3 of which were invalidated in the mid-1930s.
The nondelegation doctrine is primarily used now as a way of interpreting a congressional delegation of authority narrowly, in that the courts presume Congress intended only to delegate that which it certainly could have, unless it clearly demonstrates it intended to "test the waters" of what the courts would allow it to do.
Although not specifically mentioned in the Constitution, Congress has also long asserted the power to investigate and the power to compel cooperation with an investigation. The Supreme Court has affirmed these powers as an implication of Congress' power to legislate.
Since the power to investigate is an aspect of Congress' power to legislate, it is as broad as Congress' powers to legislate. However, it is also limited to inquiries that are "in aid of the legislative function;" Congress may not "expose for the sake of exposure." It is uncontroversial that a proper subject of Congress' investigation power is the operations of the federal government, but Congress' ability to compel the submission of documents or testimony from the President or his subordinates is often-discussed and sometimes controversial (see executive privilege), although not often litigated. As a practical matter, the limitation of Congress' ability to investigate only for a proper purpose ("in aid of" its legislative powers) functions as a limit on Congress' ability to investigate the private affairs of individual citizens; matters that simply demand action by another branch of government, without implicating an issue of public policy necessitating legislation by Congress, must be left to those branches due to the doctrine of separation of powers. The courts are highly deferential to Congress' exercise of its investigation powers, however. Congress has the power to investigate that which it could regulate, and the courts have interpreted Congress' regulatory powers broadly since the Great Depression.
Additionally, the courts will not inquire into whether Congress has an improper motive for an investigation (i.e., using a legitimate legislative purpose as a cover for "expos[ing] for the sake of exposure"), focusing only on whether the matter is within Congress' power to regulate and, thus, investigate. Persons called before a congressional investigatory committee are entitled to the constitutional guarantees of individual rights, such as those in the Bill of Rights. Congress can punish those who do not cooperate with an investigation via holding violators in contempt.
|“||The House of Representatives shall be composed of Members chosen every second Year by the People of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.||”|
Section Two provides for the election of the House of Representatives every second year. Since Representatives are to be "chosen . . . by the People," State Governors are not allowed to appoint temporary replacements when vacancies occur in a state's delegation to the House of Representatives; instead, the Governor of the state is required by clause 4 to issue a writ of election calling a special election to fill the vacancy.
The Constitution does not directly guarantee the franchise to anyone; rather, it provides that those qualified to vote in elections for the largest chamber of a state's legislature may vote in congressional elections as well. Amendments to the Constitution, however, have restricted the states' ability to set such qualifications. The Fifteenth Amendment and Nineteenth Amendment bar the use of race or sex as qualifications to vote in both federal and state elections. Furthermore, the Twenty-sixth Amendment provides that states may not set age requirements higher than eighteen years. The Twenty-fourth Amendment bars states from using the payment of a tax as a voter qualification in federal elections. Moreover, since the Supreme Court has recognized voting as a fundamental right, the Equal Protection Clause places very tight limitations (albeit with uncertain limits) on the states' ability to define voter qualifications; it is fair to say that qualifications beyond citizenship, residency, and age are usually questionable.
Since clause 3 provides that Members of the House of Representatives are apportioned state-by-state and that each state is guaranteed at least one Representative, exact population equality between all districts is not guaranteed and, in fact, is currently impossible, because while the size of the House of Representatives is fixed at 435, several states had less than 1/435 of the national population at the time of the last reapportionment in 2000. However, the Supreme Court has interpreted the provision of Clause One that Representatives shall be elected "by the People" to mean that, in those states with more than one member of the House of Representatives, each congressional election district within the state must have nearly identical populations.
|“||No Person shall be a Representative who shall not have attained to the Age of twenty five Years, and been seven Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State in which he shall be chosen.||”|
The Constitution provides that a representative must be twenty-five years old and an inhabitant of the state in which they are elected, and must have been a Citizen of the United States for the previous seven years. There is no requirement that a representative reside within the district he represents; in practice, this is usually the case, but there have been occasional exceptions, and in any event the states may not add such a requirement. The Supreme Court has interpreted the Qualifications Clause as an exclusive list of qualifications that cannot be supplemented by a House of Congress exercising its § 5 authority to "judge . . . the . . . qualifications of its own members," or by a state in its exercise of its § 4 authority to prescribe the "times, places and manner of holding elections for Senators and Representatives."
|“||Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons. The actual Enumeration shall be made within three Years after the first Meeting of the Congress of the United States, and within every subsequent Term of ten Years, in such Manner as they shall by Law direct. The Number of Representatives shall not exceed one for every thirty Thousand, but each State shall have at Least one Representative; and until such enumeration shall be made, the State of New Hampshire shall be entitled to chuse three, Massachusetts eight, Rhode-Island and Providence Plantations one, Connecticut five, New-York six, New Jersey four, Pennsylvania eight, Delaware one, Maryland six, Virginia ten, North Carolina five, South Carolina five, and Georgia three.||”|
The Constitution does not fix the size of the House of Representatives; instead, this clause empowers Congress to determine the size of the House as part of the apportionment process, so long as the size of the House does not exceed 1 member for every 30,000 of the country's total population and the size of the state's delegation does not exceed 1 for every 30,000 of the state's population (although these limits have not been approached since the Founding). The number is currently fixed at 435, which is around a 1 Representative: 700,000 Citizen ratio. A particular number of Representatives is assigned to each State according to its share of the national population; election districts are not drawn nationally and do not cross state boundaries. Congress additionally has the authority to prescribe what method shall be used to allocate Representatives to each state; currently, Congress has prescribed the use of the Equal Proportions method.
The Constitution mandates that a Census be conducted every ten years to determine the populations of the States, and this clause provided for a temporary apportionment of seats until the first Census could be conducted. The population of a state originally included (for congressional apportionment purposes) all "free persons", three-fifths of "other persons" (i.e., slaves) and excluded untaxed Native Americans. Presently, the Census counts illegal immigrants, and Census figures are used to determine congressional seats. The three-fifths arrangement was a compromise between the slave-holding states like South Carolina and Virginia, which wanted slaves to count as equal to free persons (including both the majority white population and thousands of free blacks living in both Northern and Southern states) in order to increase their voting strength in Congress and non-slave holding states like Massachusetts and New York which did not want slaves to count for congressional apportionment at all. This compromise had the effect of increasing the political power of slave-holding states by increasing their share of seats in the House of Representatives (see Three-fifths compromise), and consequently their share in the Electoral College (where a state's influence over the election of the President is tied to the size of its congressional delegation). Following the Civil War, the Thirteenth and Fourteenth Amendments changed this arrangement by (respectively) abolishing slavery, and superseding the three-fifths clause by requiring that a state's population for apportionment purposes was to be determined by "counting the whole number of Persons" in the state, "excluding Indians not taxed." Since there are at present no such untaxed Native Americans (Indians), all persons inhabiting a state — whether citizens or not — count towards the population of that state in determining the state's congressional apportionment.
Originally, the amount of direct taxes that could be collected from any State was tied directly to its share of the national population. On the basis of this requirement, application of the income tax to income derived from real estate and specifically income in the form of dividends from personal property ownership such as stock shares was found to be unconstitutional because it was not apportioned among the states; that is to say, there was no guarantee that a State with 10% of the country's population paid 10% of those income taxes collected, because Congress had not fixed an amount of money to be raised and apportioned it between the States according to their respective shares of the national population. To permit the levying of such an income tax, Congress proposed and the states ratified the Sixteenth Amendment, which superseded this requirement by specifically providing that Congress could levy a tax on income "from whatever source derived" without it being apportioned among the States or otherwise based on a State's share of the national population.
|“||When vacancies happen in the Representation from any State, the Executive Authority thereof shall issue Writs of Election to fill such Vacancies.||”|
Section 2, Clause 4, provides that when vacancies occur in the House of Representatives, it is not the job of the House of Representatives to arrange for a replacement, but the job of the State whose vacant seat is up for refilling. Moreover, the State Governor may not appoint a temporary replacement, but must instead arrange for a special election to fill the vacancy. The original qualifications and procedures for holding that election are still valid.
|“||The House of Representatives shall chuse their Speaker and other Officers; and shall have the sole Power of Impeachment.||”|
Section Two further provides that the House of Representatives may choose its Speaker and its other officers. Though the Constitution does not mandate it, every Speaker has been a member of the House of Representatives. The Speaker rarely presides over routine House sessions, choosing instead to deputize a junior member to accomplish the task.
Finally, Section Two grants to the House of Representatives the sole power of impeachment. Although the Supreme Court has not had an occasion to interpret this specific provision, the Court has suggested that the grant to the House of the "sole" power of impeachment makes the House the exclusive interpreter of what constitutes an impeachable offense. Impeachments are tried in the Senate (as discussed below).
|“||The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof, for six Years; and each Senator shall have one Vote.||”|
Section Three provides that each state is entitled to two Senators chosen for a term of six years. The state legislatures originally chose the Senators. This provision has been superseded by the Seventeenth Amendment, which provides for the direct election of Senators by the respective states' voters.
Generally, Article V requires that a proposal to amend the Constitution garner a two-thirds majority in both Houses of Congress, and then be ratified by three-fourths of the state legislatures. This clause of Article I, §3, is one of a handful on which Article V places special restrictions to be amended. In this case, Article V provides that "no State, without its Consent, shall be deprived of its equal Suffrage in the Senate." Thus, no individual state may have its representation in the Senate adjusted without its consent unless all other states have an identical change. That is to say, an amendment that changed this clause to provide that all states would get only 1 Senator (or 3 Senators, or any other number) could be ratified through the normal process, but an amendment that provided for some basis of representation other than strict numerical equality (for example, population, wealth, or land area) would require the assent of every state.
|“||Immediately after they shall be assembled in Consequence of the first Election, they shall be divided as equally as may be into three Classes. The Seats of the Senators of the first Class shall be vacated at the Expiration of the second Year, of the second Class at the Expiration of the fourth Year, and of the third Class at the Expiration of the sixth Year, so that one third may be chosen every second Year; and if Vacancies happen by Resignation, or otherwise, during the Recess of the Legislature of any State, the Executive thereof may make temporary Appointments until the next Meeting of the Legislature, which shall then fill such Vacancies.||”|
After the first group of Senators was elected for the 1st Congress (1789–91), the Constitution provided that they divide themselves up into 3 groups (or "classes") as nearly equal in size as possible; those Senators grouped in the first class had their term expire after only 2 years and those Senators in the second class had their term expire after only 4 years, instead of 6. After this, all Senators from those States have been elected to 6-year terms, and as new States have joined the Union, their Senate seats have been assigned to one of the 3 classes, maintaining each grouping as nearly equal in size as possible. In this way, approximately one-third of the Senate is up for re-election every 2 years, but the entire body is never up for re-election in the same year (as contrasted with the House, where its entire membership is up for re-election every 2 years).
As originally established, Senators were elected by the Legislature of the State they represented in the Senate. If a senator died, resigned, or was expelled, the legislature of the state would appoint a replacement to serve out the remainder of the senator's term. If the State Legislature was not in session, its Governor could appoint a temporary replacement to serve until the legislature could elect a permanent replacement. This was superseded by the Seventeenth Amendment, which provided for the Popular Election of Senators, instead of their appointment by the State Legislature. In a nod to the less populist nature of the Senate, the Amendment tracks the vacancy procedures for the House of Representatives in requiring that the Governor call a special election to fill the vacancy, but (unlike in the House) it vests in the State Legislature the authority to allow the Governor to appoint a temporary replacement until the special election is held. Note, however, that under the original Constitution, the Governors of the states were expressly allowed by the Constitution to make temporary appointments. The current system, under the Seventeenth Amendment, allows Governors to appoint a replacement only if their state legislature has previously decided to allow the Governor to do so; otherwise, the seat must remain vacant until the special election is held to fill the seat, as in the case of a vacancy in the House.
|“||No Person shall be a Senator who shall not have attained to the Age of thirty Years, and been nine Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State for which he shall be chosen.||”|
Senators must be at least 30 years of age, must have been a citizen of the United States for at least nine years before being elected, and must reside in the State they will represent at the time of the election. The Supreme Court has interpreted the Qualifications Clause as an exclusive list of qualifications that cannot be supplemented by a House of Congress exercising its §5 authority to "judge . . . the . . . qualifications of its own members," or by a state in its exercise of its §4 authority to prescribe the "times, places and manner of holding elections for Senators and Representatives."
|“||The Vice President of the United States shall be President of the Senate, but shall have no Vote, unless they be equally divided.||”|
Section Three provides that the Vice President is to serve as President of the Senate, although in practice, the Vice President usually presides over the Senate only when a tie in the voting is anticipated. Neither the Vice President nor the full-time President pro tempore of the Senate preside over the body's routine sessions; instead, the President pro tempore typically deputizes a junior member of the assembly to fill the role. As a non-member of the assembly, the Vice President has no vote unless the Senate is equally divided, in which case the Vice President has what is called a casting vote. This is as contrasted with the Speaker of the House, who has always been chosen from the Members of the House of Representatives, and as a Member of the assembly can vote to both make or break a tie. This provision is typically seen as one of the "checks and balances" built into the U.S. Constitution, whereby the 3 branches of the federal government (Congress, President, and the courts) are given the ability to influence the others. In this case, the Vice President's ability to preside over the deliberations of the Senate and, what is more important, break tie votes, presumably in favor of the presidential administration's preferences, allows the Executive Branch to influence the behavior of the Senate (and, consequently, Congress).
|“||The Senate shall chuse their other Officers, and also a President pro tempore, in the Absence of the Vice President, or when he shall exercise the Office of the President of the United States.||”|
The Senate may elect a President pro tempore to act in the Vice President's absence. Although the Constitutional text seems to suggest to the contrary, the Senate's practice has been to elect a full-time President pro tempore at the beginning of each Congress, as opposed to making it a temporary office only existing during the Vice President's absence. As is true of the Speaker of the House, the Constitution does not require that the President pro tempore be a senator, but by convention, a senator is always chosen; since World War II, the senior member of the majority party has filled this position. The President pro tempore, as a member of the Senate, is free to make or break a tie vote like the Speaker of the House, but in the event that the possibility of a tie vote is anticipated the Vice President is routinely on hand to ensure that the Executive Branch's policy preference prevails.
|“||The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present.||”|
The Senate is granted the sole power to try impeachments, just as the House of Lords could try impeachments in Great Britain. The Supreme Court has interpreted the Constitution's provision that the Senate has the "sole" power to try impeachments to mean that the Senate has exclusive and unreviewable authority to determine what constitutes an adequate impeachment trial. The senators must sit on oath or affirmation, unlike the lords who voted upon their honor. The Chief Justice presides whenever the President of the United States is tried, to avoid the Vice President exercising his duties as President of the Senate and presiding over the trial of the President of the United States. Although this was probably originally intended to avoid a situation where the Vice President was presiding over a debate that could ultimately result in his promotion to the presidency (were the President convicted and removed from office), it also prevents a possibly more likely contemporary scenario, where a President accused of some offense is being tried by the Senate presided over by a Vice President who may well be sympathetic to the President, reducing the independence of the Senate's consideration of the delicate question of whether to remove a sitting chief executive. On the other hand, nothing prevents the curious circumstance of a Vice President presiding over his own impeachment trial as President of the Senate, should he be impeached (although this has never happened).
A two-thirds supermajority of those Senators "present" is required to convict, although given the obvious importance of impeachment proceedings, there are generally few absent members. In addition, requiring a two-thirds majority of those members "present" has the net effect of making a present member's decision not to cast a vote either way the same as a vote against conviction. This is as contrasted with typical practice, where a proposition passes, or not, based on whether it receives the appropriate majority of however many votes were cast, irrespective of how many members were present but chose not to vote. However, much as impeachment trials generally have few members absent, the importance of impeachment trials is unlikely to produce many abstentions (i.e., non-votes) by present members.
|“||Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.||”|
If any officer is convicted on impeachment, he or she is immediately removed from office, and may be barred from holding any public office in the future. No other punishments may be inflicted pursuant to the impeachment proceeding, but the convicted party remains liable to trial and punishment in the courts for civil and criminal charges.
|“||The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.||”|
This clause generally commits to the States the authority to determine the "times, places and manner of holding elections," which includes the preliminary stages of the election process (such as a primary election), while reserving to Congress the authority to preempt State regulations with uniform national rules. Congress has exercised this authority to determine a uniform date for federal elections: the first Tuesday following the first Monday in November.
Because Congress has not enacted any on-point regulations, States still retain the authority to regulate the dates on which other aspects of the election process are held (registration, primary elections, etc.) and where elections will be held. As for regulating the "manner" of elections, the Supreme Court has interpreted this to mean "matters like notices, registration, supervision of voting, protection of voters, prevention of fraud and corrupt practices, counting of votes, duties of inspectors and canvassers, and making and publication of election returns." The Supreme Court has held that States may not exercise their power to determine the "manner" of holding elections to impose term limits on their congressional delegation.
One of the most significant ways that States regulate the "manner" of elections is their power to draw election districts. Although in theory Congress could draw the district map for each State, it has not exercised this level of oversight. Congress has, however, required the States to conform to certain practices when drawing districts. States are currently required to use a single-member district scheme, whereby the State is divided into as many election districts for Representatives in the House of Representatives as the size of its representation in that body (that is to say, Representatives cannot be elected at-large from the whole State unless the State has only one Representative in the House, nor can districts elect more than 1 Representative).
Congress once imposed additional requirements that districts be composed of contiguous territory, be "compact," and have equal populations within each State. Congress has allowed those requirements to lapse, but the Supreme Court has re-imposed the population requirement on the States under the Equal Protection Clause and is suspicious of districts that do not meet the other "traditional" districting criteria of compactness and contiguity.
The restriction on Congress's inability to "make or alter" regulations pertaining to the places of choosing Senators is largely an anachronism. When State Legislatures selected Senators, if Congress had been able to prescribe the place for choosing Senators, it could have in effect told each State where its state capital must be located. This would have been offensive to the concept of each State being sovereign over its own internal affairs. Now that Senators are popularly elected, it is largely a moot point.
|“||The Congress shall assemble at least once in every Year, and such Meeting shall be on the first Monday in December, unless they shall by Law appoint a different Day.||”|
Clause 2 requires that Congress must assemble at least once each year. This was designed to force Congress to make itself available at least once in a year to provide the legislative action the country needed in the face of the transportation and communication challenges present in the 18th century. In modern practice, Congress is in session virtually year-round.
Originally, the Constitution provided that the annual meeting was to be on the first Monday in December unless otherwise provided by law. The government under the Articles of Confederation had determined, as a transitional measure to the new constitution, that the date for "commencing proceedings" under the U.S. Constitution would be March 4, 1789. Since the first term of the original federal officials began on this date and ended 2, 4, or 6 years later, this became the date on which new federal officials took office in subsequent years. This meant that, every other year, although a new Congress was elected in November, it did not come into office until the following March, with a "lame duck" Congress convening in the interim. As modern communications and travel made it less necessary to wait 4 months from Election Day to the swearing-in of the elected officials, it became increasingly cumbersome to elect officials in November but wait until March for them to take office. Congress eventually proposed that elected officials take office in January, instead of March; since this required cutting short (by a couple of months) the terms of the elected federal officials at the time of the proposal, Congress proposed the Twentieth Amendment, which established the present dates for when federal officials take office. While the Constitution always granted Congress the authority to meet on a different day without the need to pass an amendment, § 2 of the Twentieth Amendment "tidied up" the constitutional text by paralleling the original provision requiring that the Congress meet at least once a year in December, and changing it to January 3 (unless changed by law). Although the original Constitution allowed Congress to change its annual meeting date by statute, this change eliminated any reference to a requirement in the Constitution that a lame duck Congress meet in the period between the election of a new Congress and its taking office.
|“||Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members, and a Majority of each shall constitute a Quorum to do Business; but a smaller Number may adjourn from day to day, and may be authorized to compel the Attendance of absent Members, in such Manner, and under such Penalties as each House may provide.||”|
Section Five requires that a majority of each House constitutes a quorum to do business; a smaller number may adjourn the House or compel the attendance of absent members. In practice, the quorum requirement is all but ignored. A quorum is assumed to be present unless a quorum call, requested by a member, proves otherwise. Rarely do members ask for quorum calls to demonstrate the absence of a quorum; more often, they use the quorum call as a delaying tactic.
Sometimes, unqualified individuals have been admitted to Congress. For instance, the Senate once admitted John Henry Eaton, a twenty-eight-year-old, in 1818 (the admission was inadvertent, as Eaton's birth date was unclear at the time). In 1934, a twenty-nine-year-old, Rush Holt, was elected to the Senate; he agreed to wait six months, until his thirtieth birthday, to take the oath. The Senate ruled in that case that the age requirement applied as of the date of the taking of the oath, not the date of election.
|“||Each House may determine the rules of its proceedings, punish its members for disorderly behavior, and, with the concurrence of two thirds, expel a member.||”|
Each House can determine its own Rules (assuming a quorum is present), and may punish any of its members. A two-thirds vote is necessary to expel a member.
|“||Each House shall keep a journal of its proceedings, and from time to time publish the same, excepting such parts as may in their judgment require secrecy; and the yeas and nays of the members of either House on any question shall, at the desire of one fifth of those present, be entered on the journal.||”|
Each House must keep and publish a Journal, though it may choose to keep any part of the Journal secret. The decisions of the House—not the words spoken during debates—are recorded in the Journal; if one-fifth of those present (assuming a quorum is present) request it, the votes of the members on a particular question must also be entered.
|“||Neither House, during the session of Congress, shall, without the consent of the other, adjourn for more than three days, nor to any other place than that in which the two Houses shall be sitting.||”|
Neither House may adjourn, without the consent of the other, for more than three days. Often, a House will hold pro forma sessions every three days; such sessions are merely held to fulfill the constitutional requirement, and not to conduct business. Furthermore, neither House may meet in any place other than that designated for both Houses (the Capitol), without the consent of the other House.
Senate rules allow for debate on the floor. Using a tactic called filibustering senators give long speeches to block the passage of a bill. Senator Strom Thurmond holds the filibusting record: 24 hours, 18 minutes.
|“||The Senators and Representatives shall receive a Compensation for their Services, to be ascertained by Law, and paid out of the Treasury of the United States. They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.||”|
Senators and Representatives set their own compensation. Under the Twenty-seventh Amendment, any change in their compensation will not take effect until after the next congressional election.
Members of both Houses have certain privileges, based on those enjoyed by the members of the British Parliament. Members attending, going to or returning from either House are privileged from arrest, except for treason, felony or breach of the peace. One may not sue a Senator or Representative for slander occurring during Congressional debate, nor may speech by a member of Congress during a Congressional session be the basis for criminal prosecution. The latter was affirmed when Mike Gravel published over 4000 pages of the Pentagon Papers in the Congressional Record, which might have otherwise been a criminal offense. This clause has also been interpreted in Gravel v. United States to provide protection to aides and staff of sitting congressional members, so long as their activities relate to legislative matters.
|“||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 encreased during such time; and no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office.||”|
Senators and Representatives may not simultaneously serve in Congress and hold a position in the executive branch. This restriction is meant to protect legislative independence by preventing the president from using patronage to buy votes in Congress. It is a major difference from the political system in the British Parliament, where cabinet ministers are required to be members of parliament.
Furthermore, Senators and Representatives cannot resign to take newly created or higher-paying political positions; rather, they must wait until the conclusion of the term for which they were elected. If Congress increases the salary of a particular officer, it may later reduce that salary to permit an individual to resign from Congress and take that position (known as the Saxbe fix). The effects of the clause were discussed in 1937, when Senator Hugo Black was appointed an Associate Justice of the Supreme Court with some time left in his Senate term. Just prior to the appointment, Congress had increased the pension available to Justices retiring at the age of seventy. It was therefore suggested by some that the office's emolument had been increased during Black's Senatorial term, and that therefore Black could not take office as a Justice. The response, however, was that Black was fifty-one years old, and would not receive the increased pension until at least 19 years later, long after his Senate term had expired.
|“||All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills.||”|
This establishes the method for making Acts of Congress. Accordingly, any bill may originate in either House of Congress, except for a revenue bill, which may only originate in the House of Representatives. In practice, the Senate can simply circumvent this requirement by substituting the text of any bill previously passed by the House with the text of a revenue bill, as was done with H.R. 1424 or the Tax Equity and Fiscal Responsibility Act of 1982. When the Senate sends an appropriation bill to the House, the House may return it to the Senate with a blue slip, thereby settling the question in practice. Either House may amend any bill, including revenue and appropriation bills.
The Origination Clause stems from an English parliamentary requirement that all money bills start from the House of Commons; it was intended to ensure that the "power of the purse" lies with the legislative body closer to the people. The clause was also part of a compromise between small and large states: the latter were unhappy with equal representation in the Senate.
|“||Every bill which shall have passed the House of Representatives and the Senate shall, before it become a law, be presented to the President of the United States; if he approves, he shall sign it, but if not he shall return it, with his objections to that House in which it shall have originated, who shall enter the objections at large on their journal, and proceed to reconsider it. If after such reconsideration two thirds of that House shall agree to pass the bill, it shall be sent, together with the objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a law. But in all such cases the votes of both Houses shall be determined by yeas and nays, and the names of the persons voting for and against the bill shall be entered on the journal of each House respectively. If any bill shall not be returned by the President within ten days (Sundays excepted) after it shall have been presented to him, the same shall be a law, in like manner as if he had signed it, unless the Congress by their adjournment prevent its return, in which case it shall not be a law.||”|
This clause is known as the Presentment Clause. Before a bill becomes law, it must be presented to the President, who has ten days (excluding Sundays) to act upon it. If the President signs the bill, it becomes law. If he disapproves of the bill, he must return it to the House in which it originated together with his objections. This procedure has become known as the veto, although that particular word does not appear in the text of Article One. The bill does not then become law unless both Houses, by two-thirds votes, override the veto. If the President neither signs nor returns the bill within the ten-day limit, the bill becomes law, unless the Congress has adjourned in the meantime, thereby preventing the President from returning the bill to the House in which it originated. In the latter case, the President, by taking no action on the bill towards the end of a session, exercises a "pocket veto", which Congress may not override.
What exactly constitutes an adjournment for the purposes of the pocket veto has been unclear. In the Pocket Veto Case (1929), the Supreme Court held that "the determinative question in reference to an 'adjournment' is not whether it is a final adjournment of Congress or an interim adjournment, such as an adjournment of the first session, but whether it is one that 'prevents' the President from returning the bill to the House in which it originated within the time allowed." Since neither House of Congress was in session, the President could not return the bill to one of them, thereby permitting the use of the pocket veto. In Wright v. United States (1938), however, the Court ruled that adjournments of one House only did not constitute an adjournment of Congress required for a pocket veto. In such cases, the Secretary or Clerk of the House in question was ruled competent to receive the bill.
|“||Every order, resolution, or vote to which the concurrence of the Senate and House of Representatives may be necessary (except on a question of adjournment) shall be presented to the President of the United States; and before the same shall take effect, shall be approved by him, or being disapproved by him, shall be repassed by two thirds of the Senate and House of Representatives, according to the rules and limitations prescribed in the case of a bill.||”|
In 1996, Congress passed the Line Item Veto Act, which permitted the President, at the time of the signing of the bill, to rescind certain expenditures. The Congress could disapprove the cancellation and reinstate the funds. The President could veto the disapproval, but the Congress, by a two-thirds vote in each House, could override the veto. The Supreme Court found the Line Item Veto Act unconstitutional because it violated the Presentment clause in the case Clinton v. City of New York. First, the procedure delegated legislative powers to the President, thereby violating the nondelegation doctrine. Second, the procedure violated the terms of Section Seven, which state, "if he approve [the bill] he shall sign it, but if not he shall return it." There are only two options available, under the clause, to the President: he is not authorized to amend the bill and then sign it.
Every bill, order, resolution, or vote that must be passed by both Houses, except on a question of adjournment, must be presented to the President before becoming law. However, to propose a constitutional amendment, two-thirds of both Houses may submit it to the states for the ratification, without any consideration by the President, as prescribed in Article V.
Some Presidents have made very extensive use of the veto, while others have not used it at all. Grover Cleveland, for instance, vetoed over four hundred bills during his first term in office; Congress overrode only two of those vetoes. Meanwhile, seven Presidents have never used the veto power. There have been 2,560 vetoes, including pocket vetoes.
Congress' powers are enumerated in Section Eight:
Section 8: The Congress shall have power To lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defence and general welfare of the United States; but all duties, imposts and excises shall be uniform throughout the United States;
To provide for the punishment of counterfeiting the securities and current coin of the United States;
To provide and maintain a navy;
To make rules for the government and regulation of the land and naval forces;
To provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions;
To provide for organizing, arming, and disciplining, the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress;
To exercise exclusive legislation in all cases whatsoever, over such District (not exceeding ten miles square) as may, by cession of particular states, and the acceptance of Congress, become the seat of the government of the United States, and to exercise like authority over all places purchased by the consent of the legislature of the state in which the same shall be, for the erection of forts, magazines, arsenals, dockyards, and other needful buildings;—And
To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.
Many powers of Congress have been interpreted broadly. Most notably, the Taxing and Spending, Interstate Commerce, and Necessary and Proper Clauses have been deemed to grant expansive powers to Congress.
Congress may lay and collect taxes for the "common defense" or "general welfare" of the United States. The U.S. Supreme Court has not often defined "general welfare," leaving the political question to Congress. In United States v. Butler (1936), the Court for the first time construed the clause. The dispute centered on a tax collected from processors of agricultural products such as meat; the funds raised by the tax were not paid into the general funds of the treasury, but were rather specially earmarked for farmers. The Court struck down the tax, ruling that the general welfare language in the Taxing and Spending Clause related only to "matters of national, as distinguished from local, welfare". Congress continues to make expansive use of the Taxing and Spending Clause; for instance, the social security program is authorized under the Taxing and Spending Clause.
Congress is permitted to borrow money on the credit of the United States. In 1871, when deciding Knox v. Lee, the Court ruled that this clause permitted Congress to emit bills and make them legal tender in satisfaction of debts. Whenever Congress borrows money, it is obligated to repay the sum as stipulated in the original agreement. In Perry v. United States (1935), the Court invalidated a law seeking to rescind a clause whereby creditors could demand payment in gold coin.
|“||The Congress shall have power [...] To regulate commerce with foreign nations, and among the several states, and with the Indian tribes;||”|
The Supreme Court has seldom restrained the use of the commerce clause for widely varying purposes. The first important decision related to the commerce clause was Gibbons v. Ogden, decided by a unanimous Court in 1824. The case involved conflicting federal and state laws: Thomas Gibbons had a federal permit to navigate steamboats in the Hudson River, while the other, Aaron Ogden, had a monopoly to do the same granted by the state of New York. Ogden contended that "commerce" included only buying and selling of goods and not their transportation. Chief Justice John Marshall rejected this notion. Marshall suggested that "commerce" included navigation of goods, and that it "must have been contemplated" by the Framers. Marshall added that Congress's power over commerce "is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations other than are prescribed in the Constitution."
The expansive interpretation of the Commerce Clause was restrained during the late nineteenth and early twentieth centuries, when a laissez-faire attitude dominated the Court. In United States v. E. C. Knight Company (1895), the Supreme Court limited the newly-enacted Sherman Antitrust Act, which had sought to break up the monopolies dominating the nation's economy. The Court ruled that Congress could not regulate the manufacture of goods, even if they were later shipped to other states. Chief Justice Melville Fuller wrote, "commerce succeeds to manufacture, and is not a part of it."
The U.S. Supreme Court sometimes ruled New Deal programs unconstitutional because they stretched the meaning of the commerce clause. In Schechter Poultry Corp. v. United States, (1935) the Court unanimously struck down industrial codes regulating the slaughter of poultry, declaring that Congress could not regulate commerce relating to the poultry, which had "come to a permanent rest within the State." As Chief Justice Charles Evans Hughes put it, "so far as the poultry here in question is concerned, the flow of interstate commerce has ceased." Judicial rulings against attempted use of Congress's Commerce Clause powers continued during the 1930s.
It was only in 1937 that the Supreme Court gave up the laissez-faire doctrine as it decided a landmark case, National Labor Relations Board v. Jones & Laughlin Steel Company. The legislation in question, the National Labor Relations Act, prevented employers from engaging in "unfair labor practices" such as firing workers for joining unions. The Court ruled to sustain the Act's provisions. The Court, returning to the theories propounded by John Marshall, ruled that Congress could pass laws regulating actions that even indirectly influenced interstate commerce. Further decisions expanded the Congress's powers under the commerce clause. This dramatic change in the Court's thinking was caused by President Franklin D. Roosevelt's Court Packing scheme.
In the 1990s, the Court acted to restrain Congress's exercise of its power to regulate commerce. In United States v. Lopez, the Court found that Congress could not exercise "Police power" reserved to the States by use of the Commerce Clause.
In contrast to United States v. Lopez, the powers defined in the Commerce Clause have been elastically interpreted to cover non-commercial activity not just between, but within the states. In 2005 the Supreme Court ruled in Gonzales v. Raich, that the Commerce Clause granted Congress the authority to regulate Cannabis plants grown, processed, and consumed within the state on private property. The court considered the plant a commodity even though it was not sold or exchanged in any transaction.
Congress may establish uniform laws relating to naturalization and bankruptcy. It may also coin money, regulate the value of American or foreign currency and punish counterfeiters. Congress may fix the standards of weights and measures. Furthermore, Congress may establish post offices and post roads (the roads, however, need not be exclusively for the conveyance of mail). Congress may promote the progress of science and useful arts by granting copyrights and patents of limited duration. Section eight, clause eight of Article One, known as the Copyright Clause, is the only instance of the word "right" used in the original constitution (though the word does appear in several Amendments). Though perpetual copyrights and patents are prohibited, the Supreme Court has ruled in Eldred v. Ashcroft (2003) that repeated extensions to the term of copyright do not constitute perpetual copyright; also note that this is the only power granted where the means to accomplish its stated purpose is specifically provided for. Courts inferior to the Supreme Court may be established by Congress.
Congress has several powers related to war and the armed forces. Under the War Powers Clause, only Congress may declare war, but in several cases it has, without declaring war, granted the President the authority to engage in military conflicts. Five wars have been declared in American history: the War of 1812, the Mexican-American War, the Spanish-American War, World War I and World War II. Some historians argue that the legal doctrines and legislation passed during the operations against Pancho Villa constitute a sixth declaration of war. Congress may grant letters of marque and reprisal. Congress may establish and support the armed forces, but no appropriation made for the support of the army may be used for more than two years. This provision was inserted because the Framers feared the establishment of a standing army, beyond civilian control, during peacetime. Congress may regulate or call forth the state militias, but the states retain the authority to appoint officers and train personnel. Congress also has exclusive power to make rules and regulations governing the land and naval forces. Although the executive branch and the Pentagon have asserted an ever-increasing measure of involvement in this process, the U.S. Supreme Court has often reaffirmed Congress' exclusive hold on this power (e.g. Burns v. Wilson, 346 U.S. 137 (1953)). Congress used this power twice soon after World War II with the enactment of two statutes: the Uniform Code of Military Justice to improve the quality and fairness of courts martial and military justice, and the Federal Tort Claims Act which among other rights had allowed military service persons to sue for damages until the U.S. Supreme Court repealed that section of the statute in a divisive series of cases, known collectively as the Feres Doctrine.
Congress has the exclusive right to legislate "in all cases whatsoever" for the nation's capital, the District of Columbia. Congress may also exercise such jurisdiction over land purchased from the states for the erection of forts and other buildings.
|“||The Congress shall have power [...] To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.||”|
Finally, Congress has the power to do whatever is "necessary and proper" to carry out its enumerated powers and, crucially, all others vested in it. This has been interpreted to authorize criminal prosecution of those whose actions have a "substantial effect" on interstate commerce in Wickard v. Filburn, however Thomas Jefferson, in the Kentucky Resolutions, supported by James Madison, maintained that a penal power could not be inferred from a power to regulate, and that the only penal powers were for treason, counterfeiting, piracy and felony on the high seas, and offenses against the law of nations.
The necessary and proper clause has been interpreted extremely broadly, thereby giving Congress wide latitude in legislation. The first landmark case involving the clause was McCulloch v. Maryland (1819), which involved the establishment of a national bank. Alexander Hamilton, in advocating the creation of the bank, argued that there was "a more or less direct" relationship between the bank and "the powers of collecting taxes, borrowing money, regulating trade between the states, and raising and maintaining fleets and navies." Thomas Jefferson countered that Congress's powers "can all be carried into execution without a national bank. A bank therefore is not necessary, and consequently not authorized by this phrase." Chief Justice John Marshall agreed with the former interpretation. Marshall wrote that a Constitution listing all of Congress' powers "would partake of a prolixity of a legal code and could scarcely be embraced by the human mind." Since the Constitution could not possibly enumerate the "minor ingredients" of the powers of Congress, Marshall "deduced" that Congress had the authority to establish a bank from the "great outlines" of the general welfare, commerce and other clauses. Under this doctrine of the necessary and proper clause, Congress has sweepingly broad powers (known as implied powers) not explicitly enumerated in the Constitution.
The next section of Article One provided limits on Congress's powers:
Section 9: The migration or importation of such persons as any of the states now existing shall think proper to admit, shall not be prohibited by the Congress prior to the year one thousand eight hundred and eight, but a tax or duty may be imposed on such importation, not exceeding ten dollars for each person.
The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.
No bill of attainder or ex post facto Law shall be passed.
No capitation, or other direct, tax shall be laid, unless in proportion to the census or enumeration herein before directed to be taken.
No tax or duty shall be laid on articles exported from any state.
No preference shall be given by any regulation of commerce or revenue to the ports of one state over those of another: nor shall vessels bound to, or from, one state, be obliged to enter, clear or pay duties in another.
No money shall be drawn from the treasury, but in consequence of appropriations made by law; and a regular statement and account of receipts and expenditures of all public money shall be published from time to time.
No title of nobility shall be granted by the United States: and no person holding any office of profit or trust under them, shall, without the consent of the Congress, accept of any present, emolument, office, or title, of any kind whatever, from any king, prince, or foreign state.
Although the international slave trade was allowed until 1808, Congress prohibited it on January 1, 1808, the first day it was permitted to do so. Until 1808, however, the Constitution permitted Congress to levy a maximum duty of ten dollars per slave imported into the United States.
A writ of habeas corpus is a legal action against unlawful detainment that commands a law enforcement agency or other body that has a person in custody to have a court inquire into the legality of the detention. The court may order the person released if the reason for detention is deemed insufficient or unjustifiable. The Constitution further provides that the privilege of the writ of habeas corpus may not be suspended "unless when in cases of rebellion or invasion the public safety may require it". In Ex parte Milligan (1866), the Supreme Court held that the privilege of the writ could not be suspended while the civilian courts remained operational. State and local governments are also prohibited from suspending habeas corpus.
A bill of attainder is a law by which a person is immediately convicted without trial. An ex post facto law makes an act criminal that was committed before the law was passed, i.e. that was not illegal at the time it occurred.
Section Nine reiterates the provision from Section Two that direct taxes must be apportioned by state populations. Furthermore, no tax may be imposed on exports from any state. Congress may not, by revenue or commerce legislation, give preference to ports of one state over those of another; neither may it require ships from one state to pay duties in another. All funds belonging to the Treasury may not be withdrawn except according to law. Modern practice is that Congress annually passes a number of appropriation bills authorizing the expenditure of public money. The Constitution requires that a regular statement of such expenditures be published.
The Title of Nobility Clause prohibits Congress from granting any title of nobility. In addition, it specifies that no civil officer may accept, without the consent of Congress, any gift, payment, office or title from a foreign ruler or state. However, a U.S. citizen may receive foreign office before or after their period of public service.
|“||No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.||”|
States may not exercise certain powers reserved for the federal government: they may not enter into treaties, alliances or confederations, grant letters of marque or reprisal, coin money or issue bills of credit (such as currency). Furthermore, no state may make anything but gold and silver coin a tender in payment of debts. Only Congress (see Section 8) has the authority to coin this money that should be used by the States. Moreover, the states may not pass bills of attainder, ex post facto laws, impair the obligation of contracts or grant titles of nobility.
The Contract Clause was the subject of much contentious litigation in the nineteenth century. It was first interpreted by the Supreme Court in 1810, when Fletcher v. Peck was decided. The case involved the Yazoo land scandal, in which the Georgia legislature authorized the sale of land to speculators at low prices. The bribery involved in the passage of the authorizing legislation was so blatant that a Georgia mob attempted to lynch the corrupt members of the legislature. Following elections, the legislature passed a law that rescinded the contracts granted by the corrupt legislators. The validity of the annulment of the sale was questioned in the Supreme Court. In writing for a unanimous court, Chief Justice John Marshall asked, "What is a contract?" His answer was: "a compact between two or more parties." Marshall argued that the sale of land by the Georgia legislature, though fraught with corruption, was a valid "contract". He added that the state had no right to annul the purchase of the land, since doing so would impair the obligations of contract.
The definition of a contract propounded by Chief Justice Marshall was not as simple as it may seem. In 1819, the Court considered whether a corporate charter could be construed as a contract. The case of Trustees of Dartmouth College v. Woodward involved Dartmouth College, which had been established under a Royal Charter granted by King George III. The Charter created a board of twelve trustees for the governance of the College. In 1815, however, New Hampshire passed a law increasing the board's membership to twenty-one with the aim that public control could be exercised over the College. The Court, including Marshall, ruled that New Hampshire could not amend the charter, which was ruled to be a contract since it conferred "vested rights" on the trustees.
The Marshall Court determined another dispute in Sturges v. Crowninshield. The case involved a debt that was contracted in early 1811. Later in that year, the state of New York passed a bankruptcy law, under which the debt was later discharged. The Supreme Court ruled that a retroactively applied state bankruptcy law impaired the obligation to pay the debt, and therefore violated the Constitution. In Ogden v. Saunders (1827), however, the court decided that state bankruptcy laws could apply to debts contracted after the passage of the law. State legislation on the issue of bankruptcy and debtor relief has not been much of an issue since the adoption of a comprehensive federal bankruptcy law in 1898.
|“||No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing it's inspection Laws: and the net Produce of all Duties and Imposts, laid by any State on Imports or Exports, shall be for the Use of the Treasury of the United States; and all such Laws shall be subject to the Revision and Controul of the Congress.||”|
Still more powers are prohibited of the states. States may not, without the consent of Congress, tax imports or exports except for the fulfillment of state inspection laws (which may be revised by Congress). The net revenue of the tax is paid not to the state, but to the federal Treasury.
|“||No State shall, without the Consent of Congress, lay any duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.||”|
Under the Compact Clause, states may not, without the consent of Congress, keep troops or armies during times of peace. They may not enter into alliances nor compacts with foreign states, nor engage in war unless invaded. States may, however, organize and arm a militia. Currently the National Guard and State Militias with federal oversight fulfill this function.
The idea of allowing Congress to have say over agreements between states traces back to the numerous controversies that arose between various colonies. Eventually compromises would be created between the two colonies and these compromises would be submitted to the Crown for approval. After the Revolution, the Articles of Confederation allowed states to appeal to Congress to settle disputes between the states over boundaries or "any cause whatever". The Articles of Confederation also required Congressional approval for "any treaty or alliance" in which a state was one of the parties.
There have been a number of Supreme Court cases, especially Virginia v. Tennessee, , concerning what constitutes valid congressional consent to an interstate compact. The Court found that some agreements among states stand even without Congress’s consent. According to the Court, the Compact Clause requires congressional consent only if the agreement among the states is "directed to the formation of any combination tending to the increase of political power in the States, which may encroach upon or interfere with the just supremacy of the United States."