May 30, 2019 | Political Speech Under Burson v Freeman
|The Congress only possesses the powers given to it by the Constitution. Many of these powers are found in the clauses of Article I, Section 8. But while some of these provisions, like the Commerce Clause and the Taxing and Spending Clause, are the sources of tremendous amounts of legislation, litigation, and academic debate – some of the Section 8 provisions get much less attention.|
Below are brief descriptions of just a few of these provisions. But even this list is incomplete. Some of Congress’ powers – like its ability to regulate the weight of coins – are just not the subjects of much notable constitutional discussion.
|The National Debt||Important Cases|
|One of the most hotly contested political issues today is that of the U.S. national debt. This is the total amount of money the federal government owes to individuals or other countries. The national debt is created by the national deficit, the annual amount of money that is the difference between the income the government takes in (for example, through taxes) and the money the government spends (for example, through Medicare). When spending exceeds income, the government runs a deficit. The United States has run deficits for more years in the past century than it has run surpluses (when income exceeds spending). But today, as both the deficit and debt loom large, both parties understand the fiscal situation to be problematic – but they have, as yet, been unable to put forth workable, and agreeable, solutions as to how the United States can live within its means.|
As the Constitution makes plain, it is Congress’ responsibility to take care of the national debt, as it is expressly given the authority “[t]o borrow Money on the credit of the United States.”
|The Copyright Clause||Important Cases|
|Congress is also given the authority “[t]o 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.”|
Simply, this gives the federal government the power to regulate copyrights and patents. Copyrights are generally those government issued protections of an author’s writing – ensuring that it may not be copied by someone else until after a certain period of time has passed. Patents are generally those government issued protections of an invention or process – ensuring that it may not be copied until after a certain period of time has passed. Currently, for copyrights, Congress has set the period of time that a work can be copyrighted as (generally) the life of the author and 70 years. Currently, for patents, Congress has set the period of time that something can be patented as (generally) 20 years.
In this realm – of laws that protect intellectual property – there is a third domain: trademarks (logos or signs, etc.). It is noteworthy, then, that the Copyright Clause does not actually grant Congress the authority to protect trademarks. In the 19th century, Congress did attempt to enact legislation to protect trademarks – but the Supreme Court, in the Trademark Cases (1879) held that Congress had no such authority to do so under the Copyright Clause. Instead, in the wake of Trademark Cases, Congress has passed subsequent trademark legislation pursuant to its powers under the Commerce Clause. This clause, which allows Congress to regulate commerce among the several states (see the Commerce Clause), now provides the federal government with the ability to regulate trademarks. While Congress still makes laws relating to copyrights and patents under the Copyright Clause.
|Trademark Cases (1879)|
Association for Molecular Pathology v. Myriad Genetics, Inc. (2013)
|Declarations of War||Important Cases|
|Quite explicitly, Congress is given the constitutional authority “[t]o declare War.” However, despite this blanket grant of power, the dividing line of power between the Congress and President with regard to war has been – and continues to be – contentious.|
Of the many military conflicts engaged in by the United States, the vast majority of them have been “undeclared” (for example, the Korean War, and the recent U.S. involvement in the revolution in Libya). Even as far back as during the presidency of John Adams, part of the so-called ‘Quasi-War’ with France in the late 18th century was fought without an official declaration of war from Congress.
Instead, Presidents have repeatedly used their executive authority over the armed forces to engage in conflicts without direct congressional authorization. Sometimes, this creates no conflict, and Congress follows with some measure of approval. But often, Congress has seen this as a usurping of its power.
In fact, toward the end of Vietnam War, another long conflict without grounding in a specific Congressional declaration, Congress passed the War Powers Resolution. This law was designed to thwart the ability of a President to circumvent Congress in the initiation of hostilities. The law states that any military engagement authorized by the President must cease within 60 days if Congress does not authorize the action itself.
This law, however, has been regularly ignored by presidents in the past decades, as an unconstitutional violation of the separation of powers. Congress continues to see the power granted to it by this clause of the Constitution diminished.
|Authority Over Washington, D.C.||Important Cases|
|Washington, D.C. is unique. By virtue of a clause in the U.S. Constitution, it is not controlled by a local government. Instead, it is controlled directly by Congress, which was given the authority “[t]o 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, dock-Yards, and other needful Buildings.”|
In other words, Congress directly runs the capital city of the United States. Over the centuries, residents of Washington have lobbied for more and more control over their own affairs. To a degree, they have received it. In 1973, Congress passed the “District of Columbia Home Rule Act,” a law that allowed the city to elect a mayor and a council, and pass laws all on its own. Still, Congress retained a large measure of control over the city. Uunlike any other city in the country, Congress could repeal the Home Rule Act, and retake direct control for every aspect of Washington’s governance.
Perhaps even more controversial than Congress’ direct authority over Washington, D.C., is the city’s lack of representation in either the Senate of the House of Representatives. Washington, like other territories such as Guam and Puerto Rico, have no voting representation in Congress (they do get to vote in Republican and Democrat presidential nomination primaries and they do have non-voting representatives called “Delegates” in the House that are allowed to observe and act in some limited ways). But unlike those territories, Washington does not enjoy the federal tax benefits of not being a state. Instead, residents of Washington both pay federal taxes, as if they were residents of a state, and do not have representation in the federal legislature. This has actually given rise to the recently popular city slogan of “Taxation Without Representation” (which actually now appears on D.C. license plates).
So powerfully does this idea resonate with D.C. residents, that, for decades, voters have elected so-called “Shadow Senators” and “Shadow Representatives.” These elected officials (not to be confused with the Delegates) are charged with lobbying Congress to grant Washington the same rights as those in the 50 states: representation in Congress.
|Other Powers||Important Cases|
|There are still many other enumerated powers listed in Article I, Section 8 that have not been dealt with here. They include the ability to regulate immigration, bankruptcies, coins, post offices, international law, and the structure of the army and navy. To be sure, so many of these powers are crucial for the government to function properly. Maybe part of the reason why they are so rarely dealt with in a constitutional setting is because, unlike some others, they function efficiently and without controversy.|