Powers of Congress in the United States

Introduction

Congress, as one of the three coequal branches of government, is ascribed significant powers by the Constitution. All legislative power in the government is vested in Congress, meaning that it is the only part of the government that can make new laws or change existing laws. Executive Branch agencies issue regulations with the full force of law, but these are only under the authority of laws enacted by Congress. The President may veto bills Congress passes, but Congress may also override a veto by a two-thirds vote in both the Senate and the House of Representatives.

Article I of the Constitution enumerates the powers of Congress and the specific areas in which it may legislate. Congress is also empowered to enact laws deemed “necessary and proper” for the execution of the powers given to any part of the government under the Constitution.

Part of Congress’s exercise of legislative authority is the establishment of an annual budget for the government. To this end, Congress levies taxes and tariffs to provide funding for essential government services. If enough money cannot be raised to fund the government, then Congress may also authorize borrowing to make up the difference. Congress can also mandate spending on specific items: legislatively directed spending, commonly known as “earmarks,” specifies funds for a particular project, rather than for a government agency.

Both chambers of Congress have extensive investigative powers, and may compel the production of evidence or testimony toward whatever end they deem necessary. Members of Congress spend much of their time holding hearings and investigations in committee. Refusal to cooperate with a Congressional subpoena can result in charges of contempt of Congress, which could result in a prison term.

The Senate maintains several powers to itself: It ratifies treaties by a two-thirds supermajority vote and confirms the appointments of the President by a majority vote. The consent of the House of Representatives is also necessary for the ratification of trade agreements and the confirmation of the Vice President.

Congress also holds the sole power to declare war.

Powers of the House and Senate

Each house of Congress has the power to introduce legislation on any subject except revenue bills, which must originate in the House of Representatives. The large states may thus appear to have more influence over the public purse than the small states. In practice, however, each house can vote against legislation passed by the other house. The Senate may disapprove a House revenue bill — or any bill, for that matter — or add amendments which change its nature. In that event, a conference committee made up of members from both houses must work out a compromise acceptable to both sides before the bill becomes law.

The Senate also has certain powers especially reserved to that body, including the authority to confirm presidential appointments of high officials and ambassadors of the federal government as well as authority to ratify all treaties by a two-thirds vote. Unfavorable action in either instance nullifies executive action.

In the case of impeachment of federal officials, the House has the sole right to bring charges of misconduct that can lead to an impeachment trial. The Senate has the sole power to try impeachment cases and to find officials guilty or not guilty. A finding of guilt results in the removal of the federal official from public office.

The broad powers of the whole Congress are spelled out in the eighth section of the first article of the Constitution:

to levy and collect taxes;
to borrow money for the public treasury;
to make rules and regulations governing commerce among the states and with foreign countries;
to make uniform rules for the naturalization of foreign citizens;
to coin money, state its value, and provide for the punishment of counterfeiters;
to set the standards for weights and measures;
to establish bankruptcy laws for the country as a whole;
to establish post offices and post roads;
to issue patents and copyrights;
to set up a system of federal courts;
to punish piracy;
to declare war;
to raise and support armies;
to provide for a navy;
to call out the militia to enforce federal laws, suppress lawlessness or repel invasions by foreign powers;
to make all laws for the District of Columbia; and
to make all laws necessary to enforce the Constitution.

A few of these powers are now outdated — the District of Columbia today is largely self-governing — but they remain in effect. The 10th Amendment sets definite limits on congressional authority, by providing that powers not delegated to the national government are reserved to the states or to the people. In addition, the Constitution specifically forbids certain acts by Congress. It may not:

suspend the writ of habeas corpus, unless necessary in time of rebellion or invasion;
pass laws which condemn persons for crimes or unlawful acts without a trial;
pass any law which retroactively makes a specific act a crime;
levy direct taxes on citizens, except on the basis of a census already taken;
tax exports from any one state;
give specially favorable treatment in commerce or taxation to the seaports of any state or to the vessels using them; and
authorize any titles of nobility. (1)

Congressional Powers of Investigation

One of the most important nonlegislative functions of the Congress is the power to investigate. This power is usually delegated to committees — either the standing committees, special committees set up for a specific purpose, or joint committees composed of members of both houses. Investigations are conducted to gather information on the need for future legislation, to test the effectiveness of laws already passed, to inquire into the qualifications and performance of members and officials of the other branches, and on rare occasions, to lay the groundwork for impeachment proceedings. Frequently, committees call on outside experts to assist in conducting investigative hearings and to make detailed studies of issues.

House Special Committee on Unemployment c. 1940There are important corollaries to the investigative power. One is the power to publicize investigations and their results. Most committee hearings are open to the public and are widely reported in the mass media. Congressional investigations thus represent one important tool available to lawmakers to inform the citizenry and arouse public interest in national issues. Congressional committees also have the power to compel testimony from unwilling witnesses, and to cite for contempt of Congress witnesses who refuse to testify and for perjury those who give false testimony. (2)

Informal Practices of Congress

In contrast to European parliamentary systems, the selection and behavior of U.S. legislators has little to do with central party discipline. Each of the major American political parties is basically a coalition of local and state organizations which join together as a functioning national party — Republican or Democratic — during the presidential elections at four-year intervals. Thus the members of Congress owe their positions to their local or state electorate, not to the national party leadership nor to their congressional colleagues. As a result, the legislative behavior of representatives and senators tends to be individualistic and idiosyncratic, reflecting the great variety of electorates represented and the freedom that comes from having built a loyal personal constituency.

Congress is thus a collegial and not a hierarchical body. Power does not flow from the top down, as in a corporation, but in practically every direction. There is only minimal centralized authority, since the power to punish or reward is slight. Congressional policies are made by shifting coalitions which may vary from issue to issue. Sometimes, where there are conflicting pressures — from the White House and from important economic or ethnic groups — legislators will use the rules of procedure to delay a decision so as to avoid alienating an influential sector.

A matter may be postponed on the grounds that the relevant committee held insufficient public hearings. Or Congress may direct an agency to prepare a detailed report before an issue is considered. Or a measure may be put aside (“tabled”) by either house, thus effectively defeating it without rendering a judgment on its substance.

There are informal or unwritten norms of behavior that often determine the assignments and influence of a particular member. “Insiders,” representatives and senators who concentrate on their legislative duties, may be more powerful within the Halls of Congress than “outsiders,” who gain recognition by speaking out on national issues. Members are expected to show courtesy toward their colleagues and to avoid personal attacks, no matter how extreme or unpalatable their opponents policies may be. Members are also expected to specialize in a few policy areas rather than claim expertise in the whole range of legislative concerns. Those who conform to these informal rules are more likely to be appointed to prestigious committees or at least to committees that affect the interests of a significant portion of their constituents. (3)

Oversight Powers of Congress

Of the numerous techniques that Congress has adopted to influence the executive branch, one of the most effective is the oversight function. Congressional oversight prevents waste and fraud; protects civil liberties and individual rights; ensures executive compliance with the law; gathers information for making laws and educating the public; and evaluates executive performance. It applies to Cabinet departments, executive agencies, regulatory commissions and the presidency.

Congress’ oversight function takes many forms:

committee inquiries and hearings;
formal consultations with and reports from the executive;
Senate advice and consent for executive nominations and treaties;
House impeachment proceedings and subsequent Senate trials;
House and Senate proceedings under the 25th Amendment in the event that the president becomes disabled, or the office of the vice president falls vacant;
informal meetings between legislators and executive officials;
congressional membership on governmental commissions; and
studies by congressional committees and support agencies such as the Congressional Budget Office, the General Accounting Office or the Office of Technology Assessment — all arms of Congress.

The oversight power of Congress has helped to force officials out of office, change policies and provide new statutory controls over the executive. In 1949, for example, probes by special Senate investigating subcommittees revealed corruption among high officials in the Truman administration. This resulted in the reorganization of certain agencies and the formation of a special White House commission to study corruption in the government.

The Senate Foreign Relations Committee’s televised hearings in the late 196Os helped to mobilize opposition to the Vietnam War. Congress’ 1973 Watergate investigation exposed White House officials who illegally used their positions for political advantage, and the House Judiciary Committee’s impeachment proceedings against President Richard Nixon the following year ended his presidency. Select committee inquiries in 1975 and 1976 identified serious abuses by intelligence agencies and initiated new legislation to control certain intelligence activities.

In 1983, congressional inquiry into a proposal to consolidate border inspection operations of the U.S. Customs Service and the U.S. Immigration and Naturalization Service raised questions about the executive’s authority to make such a change without new legislation. In 1987, oversight efforts disclosed statutory violations in the executive branch’s secret arms sales to Iran and the diversion of arms profits to anti-government forces in Nicaragua, known as the contras. Congressional findings resulted in proposed legislation to prevent similar occurrences.

Oversight power is an essential check in monitoring the presidency and controlling public policy. (4)

Powers of Congress in Constitutional Law

A list of entries related to Powers of Congress may be found, under the Powers of Congress category, in the United States constitutional law platform of this legal Encyclopedia.

Resources

Notes and References

“An outline of American government” (1980), by Richard C. Schroeder
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Powers of Congress