Notes
Slide Show
Outline
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The Constitution: Article I Legislative Power

  • 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.
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Historical Echo
  • Echo: The Act of Settlement of 1701 created parliamentary supremacy in England after the Glorious Revolution of 1688 reduced the powers of the Monarchy.


  • The House of Commons and the House of Lords reflected the principle of Bicameralism which the House of Representatives and the Senate established in the United States Constitution.
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Delegation of Legislative Power
  • Justice Blackmun on The Intelligible Principle Standard (Mistretta v. U.S., 1989)


  • The Constitution provides that "[a]ll legislative Powers herein granted shall be vested in a Congress of the United States," U.S. Const., Art. I, 1, and we long have insisted that "the integrity and maintenance of the system of government ordained by the Constitution" mandate that Congress generally cannot delegate its legislative power to another Branch. Field v. Clark, 143 U.S. 649, 692 (1892).
  • We also have recognized, however, that the separation-of-powers principle, and the nondelegation doctrine in particular, do not prevent Congress from obtaining the assistance of its coordinate Branches.
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Intelligible Principle Rule
  • In a passage now enshrined in our jurisprudence, Chief Justice Taft, writing for the Court, explained our approach to such cooperative ventures: "In determining what [Congress] may do in seeking assistance from another branch, the extent and character of that assistance must be fixed according to common sense and the inherent necessities of the government co-ordination." J. W. Hampton, Jr., & Co. v. United States, 276 U.S. 394, 406 (1928).
  • So long as Congress "shall lay down by legislative act an intelligible principle to which the person or body authorized to [exercise the delegated authority] is directed to conform, such legislative action is not a forbidden delegation of legislative power."


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The Constitution as a Social Contract
  • Echo: The Constitution is our social contract, our Lockean contract in which the people consent to the form and powers of government.


  • An important part of the contract is the enumeration of legislative powers which sets the scope and limits of government authority over the people.
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Article I, Sec. 8
Enumerated Powers of Congress
  • Clause 1: 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;
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The Commerce Power
  • Clause 3: To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;


  • Daniel Webster for the Plaintiff in Gibbons v. Ogden (1824):


  • 1.The power of Congress to regulate commerce, is complete and entire, and, to a certain extent, necessarily exclusive


  • 2.Almost all the business and intercourse of life may be connected, incidentally, more or less, with commerical regulations.
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War Power: Congress Shall Have the Power
  • Clause 11: To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;
  • Clause 12: To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;
  • Clause 13: To provide and maintain a Navy;
  • Clause 14: To make Rules for the Government and Regulation of the land and naval Forces;
  • Clause 15: To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;
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Art. I Congressional Powers
  • Clause 4: To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;
  • Clause 5: To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;
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Art. I Congressional Powers
  • Clause 7: To establish Post Offices and post Roads;
  • Clause 8: 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;
  • Clause 9: To constitute Tribunals inferior to the supreme Court;
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Limits on Congress
  • Clause 2: 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.


  • Echo: The English common law writ of habeas corpus predates Magna Charta in 1215 which implicitly recognized the privilege in its statement that the King must adhere to the law of the land.


  • It was a prerogative writ of the King and his courts to bring prisoners before the court to answer charges. The power to issue the writ is discretionary and it can be withheld if compelling circumstances, such as national security, require it.
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Suspension of Habeas Corpus
  • Echo: The right of habeas corpus was formalized in England by the Habeas Corpus Act (1679).
  • In the United States the President and Congress have only rarely invoked the suspension clause of our Constitution to suspend the privilege of the writ of habeas corpus.


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Suspension of Habeas Corpus
  • President Lincoln unilaterally ordered suspension of the writ during the Civil War, but the Supreme Court in Ex Parte Merryman (1861) and Ex Parte Milligan ( 1866) limited the conditions under which the President can suspend the writ.


  • The Patriot Act of 2001, drawing upon the Ex Parte Quirin (1942) precedent, suspends the writ for persons designated as enemy combatants.


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Sec. 9, Congress: No Bill of Attainder or ex post facto Law shall be passed
  • Echo: First used in 1321 against the English Earl of Winchester and the Earl of Gloucester, the bill of attainder is a legislative act convicting persons or groups of a crime, treason or a felony, without a trial.
  • Attainder led to imprisonment, executions, and seizure of the property of the convicted. The resort to bills of attainder virtually replaced impeachment in England between 1459 and 1621.


  • In English and American colonial history colonial legislatures used attainder against colonists suspected of disloyalty to the Crown.
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Other Sec. 9 Limits on Congress
  • Clause 7: No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law; and a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time.
  • Clause 8: 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
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Sec. 10 Limits on States
  • Clause 1: 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.
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Sec. 10 States Prohibited from Foreign Relations and Policy
  • Clause 2: 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 Control of the Congress.
  • Clause 3: 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.


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Article II
Executive Power
  • Clause 1: The executive Power shall be vested in a President of the United States of America.


  • Section. 2.
  • Clause 1: The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States;


  • he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices,


  • and he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.
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Article II, Clause 2, Presidential Powers
  • He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate,


  • and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law:


  • but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone , in the Courts of Law, or in the Heads of Departments.
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The President shall Take Care That The Laws Be Faithfully Executed
  • Section 3. He shall from time to time give to the Congress information of the state of the union, and recommend to their consideration such measures as he shall judge necessary and expedient;


  • he may, on extraordinary occasions, convene both Houses, or either of them, and in case of disagreement between them, with respect to the time of adjournment, he may adjourn them to such time as he shall think proper; he shall receive ambassadors and other public ministers;


  • he shall take care that the laws be faithfully executed, and shall commission all the officers of the United States.
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Article III
The Judicial Power
  • Section. 1.


  • 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.


  • The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behavior, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office
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Article III
Judicial Power
  • Section. 2.
  • Clause 1: The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;


  • --to all Cases affecting Ambassadors, other public Ministers and Consuls;--to all Cases of admiralty and maritime Jurisdiction;


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Jurisdiction of Federal Courts
  • [The judicial Power shall extend] --to Controversies to which the United States shall be a Party;--to Controversies between two or more States;--between a State and Citizens of another State; (See Note 10)--between Citizens of different States, --between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.


  • In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.



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Amendment XI
  • The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State


  • This Amendment was proclaimed as adopted on January 8, 1798 following suit by a claimant in South Carolina against the State of Georgia, decided in 1793.


  • Many of the States were under heavy financial embarrassment when the Union was formed and the case of CHISHOLM v. GEORGIA, 2 U.S. 419 (1793) undermined the doctrine of sovereign immunity and threatened the financial solvency of the states.