97-434 A
Legislative Powers of Congress:
A Brief Reference Guide
George Costello
Legislative Attorney
American Law Division
April 3, 1997
LEGISLATIVE POWERS OF CONGRESS:
A BRIEF REFERENCE GUIDE
SUMMARY
A House rule now requires that committee reports identify the constitutional source
of power to enact the reported bill. This report is designed to assist in identification of
Congress’ legislative powers. It lists legislative powers, sets forth the constitutional text
for each power, and provides brief commentary. Powers are grouped in the following
broad subject matter categories: power to tax and spend, commercial powers, citizenship,
civil rights and voting rights, elections, property and territory, war and related powers,
federal-state relations, and checks on other branches. An introductory section is devoted
to the scope of congressional powers.
TABLE OF CONTENTS
INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
1
SCOPE OF CONGRESSIONAL POWERS . . . . . . . . . . . . . . . . . . . . . . . .
1
Limited and Enumerated Powers . . . . . . . . . . . . . . . . . . . . . . . . . . . .
1
Broad and Elastic Powers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
2
Supremacy -- Preemptive Scope of Federal Law . . . . . . . . . . . . . . . . .
2
POWER TO TAX AND SPEND . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
2
COMMERCIAL POWERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
3
CITIZENSHIP . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
4
CIVIL RIGHTS AND VOTING RIGHTS . . . . . . . . . . . . . . . . . . . . . . . . .
4
ELECTIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
5
PROPERTY AND TERRITORY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
7
WAR AND RELATED POWERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
7
FEDERAL - STATE RELATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
8
CHECKS ON THE OTHER BRANCHES
. . . . . . . . . . . . . . . . . . . . . . . .
10
The Executive Branch . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
10
The Judicial Branch . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
11
LEGISLATIVE POWERS OF CONGRESS:
A BRIEF REFERENCE GUIDE
INTRODUCTION
A House Rule now requires that a committee report on a bill "include a statement
citing the specific powers granted to the Congress in the Constitution to enact the law
proposed by the bill." House Rule XI, cl. 2(l). This report is designed to assist in the
required identification and citation of congressional powers, and to that end catalogs and
briefly describes such powers. The focus is on Congress’ legislative powers, although
certain of Congress’ non-legislative powers (e.g., impeachment, and the power to judge
elections and qualifications of members) are also cited. No effort is made to catalog all
of the powers conferred on other branches, although these powers too can be of legislative
significance due to the fact that Congress has the power to make all laws "necessary and
proper" to carry into execution "all other Powers vested . . . in the Government of the
United States, or in any Department or Officer thereof." Nor is any effort made to catalog
the many limitations that the Constitution places on exercise of governmental power (e.g.,
those contained in Article I, section 9, and in the Bill of Rights); only limitations textually
linked to grants of power are included. This report, therefore, can be useful only in
helping to identify the source of congressional power to legislate in a particular area, and
does not purport to offer additional guidance in determining the ultimate constitutional
validity of specific legislation. For analysis of how particular powers or limitations have
been interpreted, see The Constitution of the United States of America: Analysis and
Interpretation, Senate Document 103-6.
The selected congressional powers are grouped below under broad topical headings.
Constitutional text is italicized.
SCOPE OF CONGRESSIONAL POWERS
Limited and Enumerated Powers
All legislative powers herein granted shall be vested in a Congress of the United States.
Article 1, section 1.
The powers not delegated to the United States by the Constitution, nor prohibited by it
to the States, are reserved to the States respectively, or to the people. Tenth Amendment.
Article I, section 1 does not grant to Congress "all legislative power," but rather
grants to Congress certain specific powers, "herein granted" and enumerated in
section 8 and elsewhere in the Constitution. The Tenth Amendment underscores this
arrangement.
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Broad and Elastic Powers
The Congress shall have power . . . To make all laws which shall be necessary and
proper for carrying into Execution the foregoing Powers and all other Powers vested by
this Constitution in the Government of the United States, or in any Department or Officer
thereof. Article I, section 8, cl. 18.
That this clause enlarges rather than narrows the powers of Congress was
established by Chief Justice Marshall’s classic statement in McCulloch v. Maryland
(1819): "Let the end be legitimate, let it be within the scope of the Constitution, and
all means which are appropriate, which are plainly adapted to that end, which are
not prohibited, but consist with the letter and spirit of the Constitution, are
constitutional."
The clause has another important consequence: by authorizing Congress to
enact legislation necessary and proper to carry into execution all powers vested in
the United States, it gives Congress a share in the responsibilities of the other
branches. In other words, legislation need not be limited to implementing powers
that the Constitution confers directly on Congress; legislation also may implement
powers conferred on the President and the courts.
Supremacy -- Preemptive Scope of Federal Law
This Constitution, and the Laws of the United States which shall be made in Pursuance
thereof; and all Treaties made, or which shall be made, under the Authority of the United
States, shall be the supreme Law of the Land; and the Judges in every State shall be
bound thereby, any Thing in the Constitution or Laws of any state to the Contrary
notwithstanding. Article VI, cl. 2.
The "supremacy clause" directs that valid (constitutional) federal laws take
precedence over conflicting state constitutional provisions and laws.
POWER TO TAX AND SPEND
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.
Article I, section 8, cl. 1.
No Capitation, or other direct Tax shall be laid, unless in Proportion to the Census of
Enumeration . . . . Article I, section 9, cl. 4.
The Congress shall have power to lay and collect taxes on incomes, from whatever source
derived, without apportionment among the several States, and without regard to any
census or enumeration. Sixteenth Amendment.
The Congress shall have Power . . . To borrow Money on the credit of the United States.
Article I, section 8, cl. 2.
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No Money shall be drawn from the Treasury, but in Consequence of Appropriations made
by Law. Article I, section 9, cl. 7.
Direct taxes (property taxes and capitation taxes) must be apportioned among
the States, and indirect taxes (all other taxes) must be "uniform." A holding by the
Supreme Court invalidating an income tax law enacted pursuant to Article I, § 8, cl.
1 led to adoption of the Sixteenth Amendment.
The purposes for which Congress
may tax and spend are very broad; the "general welfare" is not limited by the scope
of other enumerated powers under which Congress may regulate. On the other hand,
Congress has no power to regulate "for the general welfare," but may only tax and
spend for that purpose. Article I, § 9, cl. 7 enhances congressional control over the
executive branch by restricting spending to that authorized by an appropriation.
COMMERCIAL POWERS
"The Congress shall have power . . .
To regulate commerce with foreign Nations, and among the several States, and with the
Indian Tribes. Article I, section 8, cl. 3.
To establish ... uniform Laws on the subject of Bankruptcies throughout the United States.
Article I, section 8, cl. 4.
To coin money, regulate the Value thereof, and of foreign Coin, and fix the Standard of
Weights and Measures. Article I, section 8 cl. 5.
To provide for the Punishment of counterfeiting the Securities and current Coin of the
United States. Article I, section 8, cl. 6.
To establish Post Offices and post Roads. Article I, section 8, cl. 7.
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.
Article I, section 8, cl. 8.
The "commerce clause" (cl. 3 above) is one of the most far-reaching grants of
power to Congress. Interstate commerce covers all movement of people and things
across state lines, including communication and transportation. The Supreme Court
recently summarized, in United States v. Lopez (1995), three broad categories of the
commerce power.
Congress may regulate the use of the channels of interstate
commerce, may regulate and protect the instrumentalities of interstate commerce,
and, in addition, may regulate those activities that substantially affect interstate
commerce.
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CITIZENSHIP
The Congress shall have power . . . To establish an uniform Rule of Naturalization.
Article I, section 8, cl. 4.
All persons born or naturalized in the United States and subject to the jurisdiction
thereof, are citizens of the United States and of the State wherein they reside. Fourteenth
Amendment, section 1.
The power to establish uniform naturalization requirements means that
Congress may define the circumstances under which immigrants may become
citizens. The Fourteenth Amendment, adopted in 1868 as one of the Civil War
Reconstruction amendments, had the effect of conferring citizenship on African
Americans, and thereby reversing the Supreme Court’s decision in the Dred Scott
case (1857).
Section 5 of the Fourteenth Amendment, reproduced in the next
section, gives Congress explicit enforcement authority.
CIVIL RIGHTS AND VOTING RIGHTS
No State shall make or enforce any law which shall abridge the privileges or immunities
of citizens of the United States; nor shall any State deprive any person of life, liberty, or
property, without due process of law; nor deny to any person within its jurisdiction the
equal protection of the laws. Fourteenth Amendment, section 1.
The Congress shall have power to enforce, by appropriate legislation, the provisions of
this article. Fourteenth Amendment, section 5.
Both the due process clause and the equal protection clause have been
interpreted broadly, and Congress’ enforcement authority is correspondingly broad.
The privileges and immunities clause, though it has been more narrowly construed
by the Court, may nonetheless support (in conjunction with section 5) significant
legislation.
See, e.g., 42 U.S.C. § 1983.
The due process clause has been
interpreted by the Supreme Court as having substantive as well as procedural
application, and as incorporating (i.e., applying to the states) most of the Bill of
Rights. While the immediate impetus for the equal protection clause was to prohibit
racial discrimination, the clause is not so limited by its terms, and applies across the
board to all forms of discriminatory classifications by "state action."
Neither slavery nor involuntary servitude, except as punishment for crime . . . , shall exist
within the United States. Thirteenth Amendment, section 1.
Congress shall have power to enforce this article by appropriate legislation. Thirteenth
Amendment, section 2.
Congress has relied on the Thirteenth Amendment to legislate against slavery-
like conditions, such as peonage.
The right of the citizens of the United States to vote shall not be denied or abridged by
the United States or by any State on account of race, color, or previous condition of
servitude. Fifteenth Amendment, section 1.
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The Congress shall have power to enforce this article by appropriate legislation.
Fifteenth Amendment, section 2.
Congress has relied on the Fifteenth Amendment for the several iterations of
the Voting Rights Act. Nearly identical language extends the same protection to
women, and to citizens who are at least 18 years of age:
The right of the citizens of the United States to vote shall not be denied or abridged by
the United States or by any State on account of sex.
Congress shall have power to enforce this article by appropriate legislation.
Nineteenth Amendment.
The right of the citizens of the United States, who are eighteen years of age or older, to
vote shall not be denied or abridged by the United States or by any State on account of
age. Twenty-sixth Amendment, section 1.
The Congress shall have power to enforce this article by appropriate legislation. Twenty-
sixth Amendment, section 2.
ELECTIONS
The Times, Places and Manner of holding Elections for Senators and Representatives,
shall be prescribed in each State by the Legislature thereof; but the Congress may at any
time by Law make or alter such Regulations, except as to the Places of chusing Senators.
Article I, section 4, cl. 1.
While the Fifteenth Amendment and the other voting rights guarantees noted
above protect only against state action, congressional authority under this clause
includes protection of the electoral process against private interference. A variety
of enactments can trace to this authority, including campaign finance laws and the
Hatch Act (insofar as it applies to federal elections).
Each House shall be the Judge of the Elections, Returns and Qualifications of its own
Members. Article I, section 5, cl. 1.
The House and the Senate act as judicial tribunals in resolving contested
election cases.
The Congress may determine the Time of chusing the Electors, and the Day on which they
shall give their Votes; which Day shall be the same throughout the United States. Article
II, section 1, cl. 4.
Congress has exercised this authority to specify the day on which presidential
elections are held (i.e., the day on which electors are chosen), the day on which
electors gather to vote, and the day on which electoral ballots are counted.
The District constituting the seat of Government of the United States shall appoint in such
manner as the Congress may direct: A number of electors of President and Vice President
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equal to the whole number of Senators and Representatives in Congress to which the
District would be entitled if it were a State . . . . Twenty-third Amendment, section 1.
The Congress shall have power to enforce this article by appropriate legislation. Twenty-
third Amendment, section 2.
Congress may implement the Twenty-third Amendment.
Representatives shall be apportioned among the several States according to their
respective numbers, counting the whole number of persons in each State . . . . Fourteenth
Amendment, section 2.
The actual enumeration shall be made . . . in such manner as they [Congress] shall by
law direct. Article I, section 2, cl. 3.
Congress fixes by law the total number of Representatives, and provides for
apportionment among the states in accordance with the Constitution’s requirements.
Congress also makes statutory provision for the taking of the decennial census.
. . . Congress may by law provide for the case wherein neither a President elect nor a
Vice President elect shall have qualified, declaring who shall then act as President, or
the manner in which one who is to act shall be selected . . . . Twentieth Amendment,
section 3.
The Congress may by law provide for the case of the death of any of the persons from
whom the House of Representatives may choose a President whenever the right of choice
shall have devolved upon them, and for the case of the death of any of the persons from
whom the Senate may choose a Vice President whenever the right of choice shall have
devolved upon them. Twentieth Amendment, section 4.
These provisions supplement the Twelfth Amendment, which calls for selection
of a President by the House, and selection of a Vice President by the Senate, in the
event that no one receives a majority of electoral votes.
Whenever the Vice President and a majority of either the principal officers of the
executive departments or of such other body as Congress may by law provide, transmit
to the president pro tempore of the Senate and the Speaker of the House of
Representatives their written declaration that the President is unable to discharge the
powers and duties of his office, the Vice President shall immediately assume the powers
and duties of the office as Acting President. Twenty-fifth Amendment, section 4.
Congress performs other important, non-legislative functions under this
Amendment by voting on confirmation of the President’s nomination to fill a
vacancy in the office of Vice President, and by resolving disputes over the
President’s fitness to discharge the powers and duties of his office.
The right of citizens of the United States to vote in any primary or other election for
President or Vice President, for electors for President or Vice President, or for Senator
or Representative in Congress, shall not be denied or abridged by the United States or
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by any State by reason of failure to pay any poll tax or other tax.
Twenty-fourth
Amendment, section 1.
The Congress shall have power to enforce this article by appropriate legislation. Twenty-
fourth Amendment, section 2.
At the time of adoption of the Amendment in 1964, the poll tax, a remnant of
Reconstruction era legislation in the South, was maintained by five states.
Note: other Amendments relating to the subject of elections have been set forth
above under the heading "Civil Rights and Voting Rights."
PROPERTY AND TERRITORY
The Congress shall have power . . . To exercise exclusive Legislation in all Cases
whatsoever, over such District . . . 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. Article I, section 8, cl. 17.
This clause enables Congress to govern the District of Columbia, and also to
govern forts and other places obtained from states for the federal government’s
purposes.
The Congress shall have power to dispose of and make all needful Rules and Regulations
respecting the Territory or other Property belonging to the United States . . . . Article
IV, section 3, cl. 2.
This is the authority by which Congress regulates the public lands and governs
acquired territories such as Puerto Rico, the Virgin Islands, Guam, and American
Samoa.
[N]or shall private property be taken for public use, without just compensation. Fifth
Amendment.
Implicit in the Fifth Amendment’s requirement that just compensation be paid
for private property that is taken for a public use is the existence of the
government’s power to take private property for public use. The Supreme Court has
called this power an "attribute of sovereignty." The power resides in Congress, and
may be delegated to private as well as public entities so long as its exercise is
limited to public purposes.
WAR AND RELATED POWERS
The Congress shall have power . . .
To define and punish Piracies and Felonies committed on the high Seas, and Offences
against the Law of Nations. Article I, section 8, cl. 10.
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To declare War, grant Letters of Marque and Reprisal, and make Rules concerning
Captures on Land and Water. Article I, section 8, cl. 11.
To raise and support Armies . . . . Article I, section 8, cl. 12.
To provide and maintain a Navy. Article I, section 8, cl. 13.
To make rules for the Government and Regulation of the land and naval Forces. Article
I, section 8, cl. 14.
To provide for calling forth the Militia to execute the Laws of the Union, suppress
Insurrections and repeal Invasions. Article I, section 8, cl. 15.
To provide for arming, and disciplining, the Militia, and for governing such Part of them
as may be employed in the Service of the United States, reserving to the States
respectively, the Appointment of the Officers, and the Authority of training the Militia
according to the discipline prescribed by Congress. Article I, section 8, cl. 16.
No State shall, without the consent of Congress . . . engage in War, unless actually
invaded, or in such imminent Danger as will not admit of delay. Article I, section 10, cl.
3.
Treason against the United States, shall consist only in levying War against them, or in
adhering to their Enemies, giving them aid and Comfort. No Person shall be convicted
of Treason unless on the Testimony of two Witnesses to the same overt Act, or on
Confession in open Court. Article III, section 3, cl. 1.
The Congress shall have Power to declare the Punishment of Treason, but no Attainder
of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the
Person attainted. Article III, section 3, cl. 2.
Congress’ war powers, Article I, § 8, cls. 11-14 above, are underscored by the
power to declare war. Congress can also exercise control over military ventures
through its power of the purse (see especially Art. I, § 8, cl. 1 and Article I, § 9, cl.
7 below). Under Article II, section 2, the President is Commander in Chief of the
armed forces. The right of the states to maintain a militia -- now the National Guard
-- is subject to control by Congress pursuant to clauses 15 and 16, above. The crime
of treason is defined by the Constitution, but Congress has the power, as limited by
the language of Article III, § 3, cl. 2, to declare the punishment for treason.
FEDERAL - STATE RELATIONS
This Constitution, and the Laws of the United States which shall be made in Pursuance
thereof; and all Treaties made, or which shall be made, under the Authority of the United
States, shall be the supreme Law of the Land; and the Judges in every State shall be
bound thereby, any Thing in the Constitution or Laws of any state to the Contrary
notwithstanding. Article VI, cl. 2.
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The "supremacy clause," also set forth above under "Scope," directs that valid
federal laws preempt conflicting state constitutional provisions and laws.
The powers not delegated to the United States by the Constitution, nor prohibited by it
to the States, are reserved to the States respectively, or to the people. Tenth Amendment.
The Tenth Amendment, also set forth above under "Scope," reflects the fact
that federal powers are enumerated and defined, and hence not all-encompassing;
governmental powers not delegated to the Federal Government are reserved to the
States.
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. Article I, section 10, cl. 2.
This clause complements the congressional power under Article I, section 8,
cl. 1 to impose imposts and duties on imports and exports.
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 inn such
imminent Danger as will not admit of delay. Article I, section 10, cl. 3.
Here again, Congress may consent to States exercising powers otherwise
prohibited. Clauses 2 and 3 of section 10 contrast with clause 1, which prohibits
altogether specified actions by states and contains no provision for congressional
consent.
Interstate compacts are relatively common; under Supreme Court
interpretations, congressional consent may take a variety of forms, express or
implied, before or sometimes after the fact.
Full Faith and Credit shall be given in each State to the public Acts, Records, and
Judicial Proceedings of every other State.
And the Congress may by general Laws
prescribe the Manner in which such Acts, Records, and Proceedings shall be proved, and
the Effect thereof. Article IV, section 1.
This "Full Faith and Credit Clause" gives Congress what amounts to
enforcement authority over the required recognition by each state of the judgments,
records, and legislation of other states.
New States may be admitted by the Congress into this Union; but no new State shall be
formed or erected within the Jurisdiction of any other State; nor any State be formed by
the Junction of two or more States, or Parts of States, without the Consent of the
Legislatures of the States concerned as well as of the Congress. Article IV, section 3.
Congress by legislation may admit new states on an equal footing with existing
states.
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The United States shall guarantee to every State in this Union a Republican Form of
Government, and shall protect each of them against Invasion; and on Application of the
Legislature, or of the Executive (when the Legislature cannot be convened) against
domestic Violence. Article IV, section 4.
Exercising this authority, Congress has authorized Presidents to send federal
troops into a state to guarantee law and order.
CHECKS ON THE OTHER BRANCHES
The Executive Branch
The President, Vice President and all civil Officers of the United States, shall be removed
from Office on Impeachment for, and Conviction of, Treason, Bribery, or other High
Crimes and Misdemeanors. Article II, section 4.
The House of Representatives . . . shall have the sole power of Impeachment. Article I,
section 2, cl. 5.
The Senate shall have the sole Power to try all Impeachments. . . . And no person shall
be convicted without the Concurrence of two thirds of the Members present. Article I,
section 3, cl. 6.
Judgment in cases of Impeachment shall not extend further than to removal from Office,
and disqualification to hold and enjoy any Office of honor, Trust or Profit under the
United States: but the Party convicted shall nevertheless be liable and subject to
Indictment, Trial, Judgment and Punishment, according to Law. Article I, section 3, cl.
7.
The President . . . shall have Power to Grant Reprieves and Pardons for Offenses against
the United States, except in Cases of Impeachment. Article II, section 2.
Congress may remove from office the President, Vice-President, and other
"civil officers" (other executive officers and judges).
The House initiates the
impeachment process, and the Senate conducts a trial to determine whether to
convict or acquit. Convicted persons can be barred from holding federal office in
the future, and may be subject to criminal trial in the courts.
The President’s
otherwise unlimited pardon power does not extend to impeachment convictions.
. . . [N]o Person holding any Office of Profit or Trust under [the United States] shall,
without the consent of Congress, accept any present, Emolument, Office, or Title, of any
kind whatever, from any King, Prince or foreign State. Article I, section 9, cl. 8.
This restriction complements denial to Congress of the power to grant titles of
nobility.
By statute, Congress requires that federal officials turn over to the
government all but minimal gifts from foreign nations.
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[The President] shall have Power, by and with the Advice and Consent of the Senate, to
make Treaties, provided two thirds of the Senators present concur . . . . Article II, section
2.
The Senate’s advice and consent role in treaties is one of several means by
which Congress may influence foreign policy, the principal others being the war
powers and the appropriations power noted above, and the confirmation authority
listed below.
[The President] 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. Article II, section 2.
The requirement that the President obtain Senate approval of appointment of
ambassadors, judges, and executive branch officers is an important check on the
President’s authority.
Also significant are Congress’ powers to create (and by
implication abolish) offices (including executive departments and agencies), and to
specify who shall have the appointment authority for "inferior" officers.
The Judicial Branch
Note: the impeachment power, set forth above as a check on the executive branch,
applies as well to judges.
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. Article
III, section 1.
The Congress shall have Power . . . To constitute Tribunals inferior to the supreme Court.
Article I, section 8, cl. 9.
Congress may create inferior courts, and first did so in the Judiciary Act of
1789. By implication Congress may also abolish inferior federal courts, although
in doing so Congress presumably must reassign judges, who have lifetime tenure.
In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in
which a State shall be a 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. Article III, section 2, cl. 2.
The appellate jurisdiction of the Supreme Court, unlike its original jurisdiction,
is subject to "exceptions" and "regulations" prescribed by Congress. Whether and
to what extent Congress may deprive the Court of jurisdiction to hear constitutional
issues is unsettled. Congress’ authority to create and abolish "inferior" federal courts
includes implicit authority to control jurisdiction of such courts.
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The Trial of all Crimes . . . shall be held in the State where the said Crimes shall have
been committed; but when not committed within any State, the Trial shall be at such
Place or Places as the Congress may by Law have directed. Article III, section 2, cl. 3.
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial,
by an impartial jury of the State and district wherein the crime shall have been
committed, which district shall have been previously ascertained by law . . . . Sixth
Amendment.
Congress’ broadest authority over the location of trials for federal crimes relates
to crimes "not committed within any State" -- i.e., crimes committed on the high
seas, in territories of the United States, or at forts or other federal enclaves that are
under the exclusive legislative jurisdiction of the United States.
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. Article I, section 9, cl. 2.
The power of Congress to suspend the writ of habeas corpus in cases of
rebellion or invasion is generally conceded. The President’s authority to do so is
disputed; after initially suspending the writ on his own motion during the Civil War,
President Lincoln sought and received congressional authorization.