What CAN Congress do?
Published on May 13, 2023
What CAN Congress Do

Hey…  welcome yall…  if you have been reading this blog for any period of time at all, you know how I like to write.  I like to open with a fun, light hearted story that will illustrate the material that I want to cover…  then I cover the material, and then maybe wrap it back around to the story again to give closure, and perhaps include a way each of us can get more involved.  I think that is a fun way to write and I get good feedback about the articles from my wife when I follow that model!  You know also I have often written about the idea of “Enumerated Powers” of Congress and how we need to hold our representatives accountable to stay within those boundaries, and not allow them to assume new, unconstitutional powers.  Since I have mentioned that so often, it seemed important to also cover what Congress IS allowed to do…  I mean, what are those enumerated powers? 

It was in this way I began this series with my article, “A Rare and Fun Day in a Constitution Nerd Kinda Way”.  In this article, we covered the first three enumerated powers of Congress found in Article 1, Section 8 of the Constitution.  Of course, I planned to stick with my writing style throughout this series.  The trouble is, I have no idea how to keep making fun little stories to illustrate the list of things Congress is allowed to do…  I also have been more than a little sidetracked in running for the school board as I described in “Answering God’s Call – Why I’m Running for School Board”.  Maybe my brain cells were preoccupied with the campaign.  Maybe it is just hard to get a somewhat disparate list of duties of Congress worked into cool little illustrative stories.  Not sure…  So, until we get a more creative writer around here, I think we’re gonna have to get a little bit academic and just go through the list of the remaining enumerated powers, even without cool illustrations.  Sorry…  Since the name of the series refers us to a fun day “In a Constitutional Nerd Kinda Way”, maybe we will be ok…  😊  Hopefully at least us Constitution nerds will still find this interesting!  But hey, if we don’t do this, we are in danger of never getting through this material…  So, I apologize in advance…  Here we go… 

The fourth enumerated power of Congress is to “Establish a uniform Rule of Naturalization”.  I find this one interesting.  Think about the last Presidential debate you may have seen.  I almost promise you one of the questions asked to Presidential candidates had to do with this subject of naturalization of new citizens.  Just once, I would love to hear a presidential candidate say something like, “Are you asking what kind of a bill from Congress I would sign vs veto?  Why are you asking me about one of Congress’ powers?”  We always look to the President for naturalization policies, when the Constitution clearly places that jurisdiction with Congress. 

Congress also has authority to make “uniform Laws on the subject of Bankruptcies”.  The idea of this was to hopefully prevent fraud in an environment where parties to the bankruptcies may be in different states, etc.  Congress took some time to try to figure out legislation dealing with bankruptcy.  Several bankruptcy laws were passed and then repealed each after a short time.  On page 416 of The Making of America, the author, W. Cleon Skousen notes that for the first 89 years of our nation’s history, there was a federal bankruptcy law for only a combined total of 16 years!  During this time, the Supreme Court ruled that in the absence of federal statute, the states were free to regulate in these areas. 

The power of Congress “To coin Money, regulate the Value thereof, and of foreign Coin” is important, but it is almost more important to see what this power does not include.  In the original draft, there was additional language that would have given Congress power to “emit bills of credit”.  This power was later removed from the text because it would have allowed Congress to print paper money, and our founders were definitely opposed to that!  Gouverneur Morris moved to strike that line from the text, saying, “If the United States had credit, such bills would be unnecessary; if they had not, unjust and useless.”   

“…and fix the Standard of Weights and Measures;” According to the Heritage Foundation’s “Heritage Guide to the Constitution”, the purpose of this enumerated power was “to facilitate domestic and international commerce by permitting the federal government to adopt and enforce national measurement standards based upon the prevailing consensus.  The clause excited no controversy among the Framers or in the ratifying conventions.”  So, on this one, think along the lines of Congress determining whether the United States will use the English system or the Metric system of measurements as we conduct commercial transactions. 

“To provide for the punishment of counterfeiting the Securities and current Coin of the United States”.  In Great Britain, counterfeiting was considered treason and was dealt with accordingly, often by Parliament pronouncing judgement via “Bills of Attainder”, which are basically when a legislative body passes judgement on an individual instead of, or without, a court trial.  (This practice was specifically banned from Congress’ authority in Article 1, Section 9 of the Constitution).  Counterfeiting was dealt with differently in the separate states, ranging in severity from state to state.  This enumerated power provided a separation between counterfeiting and treason, and allowed Congress to define how it would be punished.

“To establish Post Offices and post Roads”.  This is the enumerated power we cited when we started this discussion of enumerated powers in the article, “A Rare and Fun Day in a Constitutional Nerd Kinda Way”, when our Representative, and one of the Senators from Texas, wanted to rename a post office in honor of a member of Congress who had recently passed away.  We were celebrating as it is rare when we find Congress exercising power directly provided to them in the Constitution!  There has been discussion in our nation’s history as to post roads, and whether that includes construction, maintenance, etc.  Personally, I am happy to side with Joseph Story who said in his work, “Commentaries on the Constitution of the United States” that the words “to establish” encompass a power to create roads as well as to designate them.

“To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries”.  In the Constitution Alive classes we host, Rick Green shares how this enumerated power is WAY overused!  This does not simply give Congress the power to “Promote the progress of science and useful arts”, somehow leaving the door open to however Congress would interpret that.  You have to continue to read the rest of the sentence which specifies Congress does this “by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.”  What we are talking about here is laws for patents etc. Congress is to protect the intellectual property of those who create the science or art.  This is not a blank check license for Congress to spend public money on arts!

“To constitute Tribunals inferior to the supreme Court”.  In our article entitled, “One out of Five Stars- Checks and Balances on the Judicial Branch”, we discuss this in much more depth, but the bottom line is that Congress has power to establish federal courts, other than the Supreme Court as they see fit.  Article 3 of the Constitution says it this way, “The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.”  I love that term “from time to time” – that tells me these are not permanent decisions!  Congress may create federal courts, and may also disband them at will.  The judicial branch, with the exception of the Supreme Court itself, is completely in the hands of Congress.  That means we can go through our Congressional Representatives and Senators to hold the judicial branch accountable!  We need to do more of that. 

I think this is a good place to stop for now, but there are more enumerated powers still to go.  So, later I will finish this discussion with yet another article where we will continue to list the enumerated powers one by one!  Again, I feel this is an important exercise to do because so often, I talk about what Congress can’t do and I say we have to hold them accountable to their enumerated powers – so we have to have an understanding of what those powers are.  Thank you for hanging in there with me!  One more article to go and we should be able to complete the enumerated powers as listed in Article 1, Section 8.  Until then – thank you!  Let me know your thoughts and questions in the comments. 

 

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