3 Senate

Main article: United States Senate

The Senate is defined by Section Three of the Article.

As noted above, the Senate is often referred to as the "upper house" of Congress, though both chambers are roughly equal in terms of power bestowed by the Constitution. Nevertheless, as there are far fewer Senators than Representatives, and since Senators serve for longer terms, the average Senator tends to be more influential than his counterpart in the other body. The Senate sometimes implicitly asserted—especially in its early history—that it was the superior half of Congress, though such a claim has no explicit constitutional basis. For instance, after assembling in 1789, the Senate unsuccessfully attempted to adopt a procedure for communication between the two houses that would indicate the Senate's alleged superiority. The Senate desired to send its messages to the House through a mere clerk, at the same time desiring that House messages be communicated by two Representatives, who would have to "make obeisance" (bow) when entering and leaving the Senate chamber.

Section Three provides that each state is entitled to two Senators chosen for a term of six years. The Constitution provided that, after the first meeting of the Senate, the Senators be divided as equally as possible into three classes, with Senators of the first class having a two-year term, those of the second class having a four-year term and those of the third class having six-year terms; thereafter, all Senators were to have six-year terms. To preserve the election of about one-third of the Senate every two years, the Senators elected by newly admitted states may have had truncated terms. A Senator must be thirty years old, a citizen of the United States at least for the past nine years and an inhabitant of the state he or she represents.

The state legislature originally chose the Senators; legislatures could authorize the state's executive authority (the Governor) to make temporary appointments to fill vacancies that arose while the legislature was in recess. The Seventeenth Amendment, however, provides that the People of a state may elect its Senators.

Section Three provides that the Vice President is to serve as President of the Senate. The Vice President has no vote unless the Senate is equally divided. The Senate may elect a President pro tempore to act in the Vice President's absence. The President pro tempore is by convention a Senator, though there is no constitutional requirement for the same.

Finally, the Senate is granted the sole power to try impeachments, just as the House of Lords could try impeachments in Great Britain. The Senators must sit on oath or affirmation, unlike the Lords who voted upon their honor. The Chief Justice must preside whenever the President is tried. A two-thirds vote is required to convict. If an executive officer is convicted on impeachment, he or she is immediately removed from office, but the Senate may choose not to remove a judicial officer (the Senate decided, when considering the impeachment of Senator William Blount, that members of Congress may not be tried on impeachment). In either case, the Senate may disqualify the defendant from holding any public office in the future. No other punishments may be inflicted, but the impeached party remains liable to trial and punishment in the courts.

4 Elections and meetings

Section Four provides that states may regulate the "times, places and manner" of holding Congressional elections. The Congress, however, may make or amend regulations, except for those relating to the place of choosing Senators (as the state legislatures originally elected Senators). The Section therefore permits Congress to set a single date for Congressional elections; in pursuance of this power, Congress has designated the first Tuesday following the first Monday in November. The wording was adopted so as to preclude November 1—the Roman Catholic holiday, All Saints' Day—from being the date of the election.

Furthermore, Section Four requires that Congress must assemble at least once each year. The meeting was to be on the first Monday in December unless otherwise provided by law. Elections, were held in November, and the Representatives and Senators sworn in in March. The December session between those two months, therefore, was not of the newly-elected Congress; rather, it was of the "lame duck" Congress. To correct the problem, the Twentieth Amendment was passed, allowing the newly-elected Representatives and Senators to meet and take office on January 3 of the year following the election (Congress may amend the date of meeting by law).

5 Procedure

Each House of Congress is granted the power to judge the elections and qualifications of its members. The decision of either House, though politically motivated, may not be challenged in the courts, and may be contrary to the decisions of the state governments. Sometimes, unqualified individuals have been admitted to Congress. For instance, the Senate once admitted John Henry Eaton, a twenty-eight year old, in 1818 (actually, the admission was inadvertent, as Eaton's birthdate 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 in order 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.

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.

Each House may determine its own Rules, and may punish any of its members. A two-thirds vote is necessary to expel a member. 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 may adjourn, without the consent of the other, for more than three days. Often, a House may hold pro forma sessions every three days; such sessions are merely held to fulfill the constitutional requirement, and not to actually conduct business. Furthermore, neither House may meet in any place other than that designated for both Houses ( Capitol Hill), without the consent of the other House.

6 Compensation and privilege

Senators and Representatives receive an emolument as determined by law. Under the Twenty-seventh Amendment, no law varying the compensation of Senators and Representatives may take effect until an election of Representatives intervenes.

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. Their speeches may not be questioned in any place outside Congress; thus, one may not sue a Senator or Representative for slander occurring during Congressional debate.

No civil officer of the United States may serve as a Senator or Representative. Furthermore, no Senator or Representative may be appointed to any newly created civil office or office whose emolument has been increased "during the time, for which he was elected." In effect, 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. The effects of the clause were discussed in 1937, when Senator Hugo Black was appointed an Associate Justice 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 nineteen years later, long after his Senate term had expired.

7 Bills

A bill may originate in either House of Congress, except that a revenue bill, under the Constitution, may only originate in the House of Representatives. The House has claimed that it alone may originate appropriation bills as well, but the Senate opposes this claim. Whenever the Senate sends an appropriation bill to the House, the House merely returns it to the Senate, thereby settling the question in practice. Either House may amend any bill, including revenue and appropriation bills.

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 vetoes the bill, he must return it to the House in which it originated together with his objections. The bill does not 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 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.

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. Firstly, the procedure delegated legislative powers to the President, thereby violating the nondelegation doctrine. Secondly, 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. In order to propose a constitutional amendment, two-thirds of both Houses may submit it to the states for the ratification, as prescribed in Article V.

The procedure for lawmaking is based on that used in the British Parliament, where the consent of the House of Commons, the House of Lords and the Sovereign was originally required for the enactment of any legislation; there was no way in which the Sovereign's refusal to grant Royal Assent could be overcome. The power to withhold Assent has not been used in Great Britain or the United Kingdom since 1707, but the veto power has been frequently used by American Presidents. George Washington (the first President) used the regular veto; James Madison was the first to use the pocket veto. 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 only overrode two of those vetoes. Meanwhile, eight Presidents (including George W. Bush) have never used the veto power. In all, there have been 1484 regular vetoes, of which 106 (about seven percent) have been overridden. There have also been 1066 pocket vetoes, giving a total of 2550 vetoes.

8 Powers of Congress

Congress has a multitude of powers under Section Eight. Many powers of Congress have been interpreted broadly. Most notably, the general welfare, 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. Originally, direct taxes had to be apportioned among the states, but that requirement was removed by the Sixteenth Amendment. The Supreme Court has not often defined "general welfare," leaving the political question to Congress. In United States v. Butler ( 1936), the Supreme 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 Supreme Court struck down the tax, ruling that the general welfare clause related only to "matters of national, as distinguished from local, welfare." Nonetheless, Congress continues to make expansive use of the general welfare clause. For instance, the social security program is authorized under the general welfare clause.

Chief Justice John Marshall established a broad interpretation of the Commerce 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.

Congress is empowered by the Constitution to regulate commerce with foreign nations, with the Native American tribes and between states. The Supreme Court has seldom restrained the use of this clause for widely varying purposes. The first important commerce clause-related decision was Gibbons v. Ogden, decided by a unanimous Supreme Court in 1824. The case involved conflicting federal and state laws; one party, 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. It was contended that "commerce" included only buying and selling of goods, and not the transportation thereof. Chief Justice John Marshall rejected such an idea. Marshall suggested that "commerce" included navigation of goods, and that it "must have been contemplated" by the framers. Marshall added that Congress' 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 Sherman Antitrust Act, which had sought to break up the monopolies dominating the nation's economy. In the E. C. Knight Company case, the Supreme 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 Supreme Court sometimes ruled New Deal programs unconstitutional on the grounds that they stretched the meaning of the commerce clause. In Schecheter Poultry Corp. v. United States, the Supreme 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 restraint on Congress' 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 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 that regulate actions that even indirectly influenced interstate commerce. Further decisions expanded the Congress' powers under the commerce clause. In the 1990s, the Supreme Court once again acted to restrain Congress' exercise of the power to regulate commerce. In several cases, Congress passed acts that punished crimes on the grounds that they discouraged individuals from engaging in interstate commerce. In United States v. Lopez, the Court found that Congress could not exercise "police powers," which were reserved to the states.

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 provide for the granting of copyrights and patents; perpetual copyrights and patents, however, are prohibited. Courts inferior to the Supreme Court may be established by Congress. Congress may also define and punish maritime crimes.

Congress has several powers related to war and the armed forces. Only Congress may declare war, but in several cases it has granted the President the authority to engage in military conflicts. Six wars have been declared in American history: the Barbary Coast War, 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 seventh declaration of war. Congress may grant letters of marque and reprisal; such letters are now obsolete. Congress may establish and support the armed forces, but no appropriation may be 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 during peacetime. The provision is moot, however, since now appropriations for all purposes are made annually. Congress may regulate or call forth the state militias, but the states retain the authority to appoint officers and train personnel.

Congress has the exclusive right to legislate 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.

Finally, Congress has the power to do whatever is "necessary and proper" to carry out its enumerated powers. Thus, Congress may establish a system whereby those who violate laws are punished, though the Constitution only explicitly provides for the punishment of those who violate counterfeiting or maritime laws. The necessary and proper clause, however, 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' 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 interpretation of the necessary and proper clause, Congress has sweepingly broad powers not explicitly enumerated in the Constitution.

9 Limits on Congress

The Constitution provided for several limits on Congress' powers. Firstly, it provided for the continuance of the international slave trade until 1808. Congress prohibited the slave trade 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.

The Constitution further provides that the privilege of the writ of habeas corpus may not be suspended except during rebellion or invasion. 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. Congress may not pass any bill of attainder or ex post facto law.

Section Nine prevented Congress from imposing any direct tax except on the basis of state populations, but the Sixteenth Amendment removed such a requirement. 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 in accordance with 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.

Congress may not grant any title of nobility. No civil officer may, without the consent of Congress, accept any emolument, office or title from a foreign ruler or state.

10 Limits on the states

The final section of Article One outlines the limits on the powers of the states. States may not exercise some 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 except gold and silver coin legal tender. 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, in the nineteenth century, the subject of much contentious litigation. 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 Georgia had sold land to private companies at low prices in return for bribes. The bribery was so blatant that a Georgian 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 or not 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 so that public control could be exercised over the College. Marshall and the Court ruled that New Hampshire could not amend the charter, which was ruled to be a contract since it conferred "vested rights" on the trustees.

Another dispute determined by the Marshall Court was 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.

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.

States may not, without the consent of Congress, keep troops or armies during times of peace. They may neither enter into alliances or compacts with foreign states, nor engage war unless invaded.

11 References

• Constitution of the United States.
• Davis, Z. (2001). "Presidential Vetoes, 1989–2000."
• Kilman, J. & Costello, G. (Eds). (2000). The Constitution of the United States of America: Analyis and Interpretation.
• Irons, P. (1999). A People's History of the Supreme Court. New York: Penguin.
• National Cable Satellite Corporation. (2003). "Capitol Questions."

United States Constitution

Main body

Preamble | Article I | Article II | Article III | Article IV | Article V | Article VI | Article VII

Amendments

Bill of Rights: I | II | III | IV | V | VI | VII | VIII | IX | X

Other amendments: XI | XII | XIII | XIV | XV | XVI | XVII | XVIII | XIX | XX | XXI | XXII | XXIII | XXIV | XXV | XXVI | XXVII

History of the Constitution

Federalist Papers | Proposed amendments | Signatures | Unsuccessful amendments

Interpretation of the Constitution

Civil liberties | Congressional power of enforcement | Dormant Commerce Clause | Due process | Separation of powers

Specific clauses in the Constitution

Commerce Clause | Equal protection clause | Full Faith and Credit clause | Preemption of state and local laws | Supremacy clause | No religious test clause

1 Legislative Branch of the United States Government

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