The Powers of Congress: A Brief Overview

The Powers of Congress: A Brief Overview

November 28, 2016
The Powers of Congress: A Brief Overview
Historical Background
a chief concern of the Framers was the enshrinement of
The modern influence that Congress has in the federal
specific limitations on the power of the government to
tripartite system of government can be explained by
abridge such rights. While some limitations on the powers
understanding the historical context in which the Framers of
of Congress that aimed at protecting individual rights
the Constitution enacted their vision for the first branch of
appear in the original Constitution, many of the most
government. The creation of a Congress in Article I of the
famous protections were not added until the Bill of Rights
Constitution reflects the collective preferences and
was ratified in 1791.
compromises of those who drafted the document in 1787.
Their views were undergirded by the political philosophies
Nonetheless, the Framers’ experiences with the Articles of
of the era and were chiefly shaped by two historical
Confederation—and the accompanying rebellions, slave
experiences: (1) colonial rule under the tyranny of the
revolts, and attacks by Indians and foreign nations that were
British Crown, and (2) the chaos that resulted in the wake
caused by or exacerbated by the Articles’ weak central
of the American Revolution due to the weak central
government—made fear of anarchy a competing interest in
government that was established under the Articles of
the debates over the Constitution. The Framers learned
Confederation. In this vein, the Framers designed the
from their post-Revolution experiences that a stronger
Constitution, and more specifically Congress, to avoid not
national government was necessary and, as a result,
only the overreaches of monarchy, but also the weaknesses
established under the Constitution a government with a
of the Articles.
more robust legislature than the Continental Congress and a
separate executive able to act with greater “energy,” as well
Because of the Framers’ fear of an overly powerful and
as an independent judiciary that could provide a check on
oppressive central government, the Constitution vests
the legislative and executive branches. In sum, the
Congress with only the powers specified in the document,
Constitution that was drafted in 1787 was crafted under a
reserving all other power to the states. This principle
backdrop in which the Framers sought to simultaneously
reflects the Founders’ belief in federalism—the sharing of
create a federal government that could both protect its
authority between the federal and state governments.
citizens from external and internal harm and influence, and
also keep the states and the people of the country safe from
domination by the centralized government.
“The powers delegated by the ... Constitution to the
federal government are few and defined. Those which
Key Sources of Congress’s Powers
are to remain in the State governments are numerous
Because the Constitution creates a federal government with
and indefinite.” James Madison, Federalist No. 45.
limited powers, Congress has no powers except those
specified or enumerated in the Constitution.

The Constitution also provides for dispersed authority
“Every law enacted by Congress must be based on
within the federal government. The three branches of
one or more of its powers enumerated in the
government were assigned distinct and limited roles under
Constitution.” United States v. Morrison.
the Constitution. The constitutional structure does not,
however, wholly insulate the branches from each other.
While the Framers aimed, through separation, to prevent the

centralization of power akin to their experiences under the
Article I, Section 8 of the Constitution is the primary
British Crown, they also sought the same objective through
section that enumerates Congress’s legislative powers.
diffusion of various authorities. Thus, some powers granted
Among the enumerated powers most frequently relied on by
under the Constitution are not unilateral for any one branch;
Congress to legislate are the following.
instead, they overlap, resulting in checks and balances.
Commerce Clause: This clause provides Congress the
power “To regulate Commerce with foreign Nations, and
“[T]he great security against a gradual concentration
among the several States, and with the Indian Tribes.” The
of ... power[] in the same department, consists in
Commerce Clause is the source of power for many federal
giving ... each ... the necessary constitutional means
criminal laws, certain civil rights statutes, and some
and personal motives to resist encroachments....
environmental laws.
Ambition must be made to counteract ambition.”
James Madison, Federalist No. 51.
General Welfare Clause: This clause provides Congress
the power to “lay and collect Taxes ... and provide for the

common Defence and general Welfare of the United
Because a contributing factor to the American Revolution
States....” It is the source of power for Congress to spend
was perceived violations of individual liberty by the Crown,
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The Powers of Congress: A Brief Overview
money for various purposes, with Congress often attaching
Buckley v. Valeo, struck down that law as being in violation
conditions on the money it appropriates.
of separation of powers.
Property Clause: This clause provides Congress the power
Individual Rights: In addition to restricting Congress’s
to “dispose of and make all needful Rules and Regulations
power vis-á-vis the states and the other branches of the
respecting the Territory or other Property belonging to the
federal government, the Constitution also prohibits
United States....” The Property Clause, located in Article IV
Congress from legislating in areas that could impede on the
of the Constitution, has been the source of power for
liberties of American citizens. The First Amendment, for
congressional regulation of national parks and wildlife
example, prohibits Congress from enacting a law that
refuges, federal lands, reservations held in trust for Native
abridges the freedom of speech and, accordingly, would
American tribes, military bases, and other federal buildings.
prohibit Congress from banning the publication or
distribution of political pamphlets in interstate commerce.
This final clause of Section 8 of Article I, the Necessary
and Proper Clause, gives Congress the power to “make all
Congress’s Powers Post-Enactment
Laws which shall be necessary and proper for carrying into
The Constitution envisions Congress’s central role to be
Execution the foregoing Powers and all other Powers vested
with regard to legislating, in that Article II of the
by this Constitution....” Importantly, the Necessary and
Constitution vests the power to execute the law in the
Proper Clause is not a freestanding grant of congressional
President. The President, in turn, is obligated to “take care”
power, but rather an authorization to make laws that are
that the laws be faithfully executed, an obligation that is
necessary to execute the powers vested in both Congress
often—but not always—enforced through the judiciary. For
and the other branches by the Constitution.
example, in Train v. City of New York, the Supreme Court
ruled that the President could not frustrate the will of
Limits on Congress’s Powers
Congress by withholding funds that Congress required to be
The concept of enumerated powers creates what is often
disbursed to certain states and localities. More broadly, the
referred to as an “internal limit” on Congress’s powers—
Administrative Procedure Act empowers the courts of law
that is, Congress’s powers are limited by the restrictions
to compel agency action unlawfully withheld or delayed, or
inherent in the grants of power themselves. For instance,
to hold unlawful or set aside certain agency actions.
the Supreme Court, in United States v. Lopez, held that the
Commerce Clause does not empower Congress to prohibit
At the same time, over the past century, Congress, which
possession of guns near a school (absent a connection to
often relies on the expertise of executive branch agencies,
commercial activity) because such a law does not regulate
has purposely delegated to the executive branch, through
an economic activity that substantially affects interstate
broad or vague statutes, significant power to interpret and
commerce. However, beyond the “internal limits” imposed
execute the law. In 1984, the Supreme Court, in Chevron
on Congress’s powers, there are three chief “external”
USA, Inc. v. NRDC, held that federal courts will generally
constraints on Congress.
defer to the executive branch’s interpretation of such broad
statutory provisions. At the same time, restrictions imposed
Federalism: The Constitution views the states as wholly
on the federal judiciary by Article III of the Constitution,
sovereign entities from the federal government, and,
such as the requirement that a plaintiff in a civil suit be
accordingly, congressional encroachments on the domain of
injured in some concrete and particularized manner in order
state governments can raise constitutional questions. For
to obtain judicial relief, may limit the ability of the
instance, the Supreme Court has interpreted the Tenth
judiciary to compel the President to faithfully execute the
Amendment—the provision of the Bill of Rights that reads
law.
“The powers not delegated to the United States by the
Constitution, nor prohibited by it to the States, are reserved
Given these limits on the third branch of government, the
to the States respectively, or to the people”—to prevent the
first branch maintains a critical role in providing oversight
federal government from “commandeering” or requiring
of the executive branch as the President administers the
state executive officers or state legislators from carrying out
laws passed by Congress. The Supreme Court has held that
federal directives. Moreover, the Court has held that
the “the power of Congress to conduct investigations is
Congress cannot indirectly commandeer state governments
inherent in the legislative process.” Congress’s power to
by imposing limits on monetary grants that functionally
conduct oversight, while fairly broad, is, like Congress’s
coerce states into complying with federal directives.
other powers, not absolute, and is subject to the external
limits the Constitution imposes on all governmental actors.
Separation of Powers: The Constitution assigns each
branch of government distinct but interrelated roles, and
For more information, see CRS’s legal treatise examining
Congress may not attempt to aggrandize its power by
the Constitution: CONSTITUTION OF THE UNITED STATES OF
attempting to exercise the power assigned to another
AMERICA: ANALYSIS AND INTERPRETATION, available at
branch. For example, the Appointments Clause of the
http://www.crs.gov/conan/constitutionannotated.
Constitution provides the President with the authority to
appoint, with the Senate’s advice and consent, principal
Andrew Nolan, Acting Deputy Assistant Director
officers of the United States. When Congress reserved to
Matthew E. Glassman, Analyst on the Congress
itself the role to appoint certain members of the Federal
Election Commission in 1971, the Supreme Court, in
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The Powers of Congress: A Brief Overview

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