Patricia A. O'Malley
Social Policy & Programs Consulting    ~    Community Matters
P.O. Box 97803    ~    Pittsburgh, PA  15227   ~    412-310-4886    ~
Copyright Patricia A. O'Malley    ~    All rights reserved
Established 1993

Patricia A. O'Malley

Social Policy & Programs Consulting

Training and Services for agencies working toward social and economic justice

​ ​Congressional Powers and the Elastic Clause 
What does “general welfare” mean?
​July 26, 2018


Our Constitution states that “All legislative power is herein granted to a Congress of the United States which shall be composed of a House of Representatives and a Senate.”  (Article I, Section 1)  ALL legislative power.  Presidents do not make laws.  And Congress can do just about anything it wants to do.

After defining the structure and requirements for each chamber, House and Senate, the Constitution lists the powers and restrictions of Congress.

Each chamber of Congress – the House and the Senate – has the power to make its own rules of procedure. 

That’s why the Senate has the filibuster and the House doesn’t.

The Constitution requires a Speaker of the House and a President Pro Tempore of the Senate. 

Each chamber may define and choose any other officers it likes.

All revenue bills must begin in the House.  “Revenue” means taxes, duties, tariffs, etc. – money coming in to the treasury.  Despite what many people believe, budget and spending bills can originate in either the House or the Senate.

All cases of impeachment must begin in the House.  Impeachment does not mean that the president (or whoever) is fired.  Once impeachment is authorized by the House, the Senate holds a trial. 

If the impeached respondent is convicted, then s/he is fired.

The Senate provides advice and consent to specified presidential nominations and ratifies all international treaties.  The House also advises and consents when a president nominates a vice president in the case of a vacancy in that office.

(Article I. Section 9)

  • Curtail or prohibit the slave trade until 1808.
  • Suspend the writ of Habeas Corpus except when, in cases of rebellion or invasion, the public safety may require it.
  • Pass any bill of attainder (a bill which declares a person to be guilty of a crime without a trial) or ex post facto (retroactive) law
  • Impose any tax or duty on items exported from any State.
  • Make any laws or regulations in commerce or revenue giving any preference to the ports of one state over those of another; or require any ships moving from one state to pay duties to another state.
  • Spend any federal money without a specific appropriation by law.  But Congress must publish a statement of account of all public money received and spent “from time to time”
  • Grant any title of nobility.
  • Require any religious test as a condition for any office or employment in the federal government.

Congress may, but is not required to
(Article I, Section 9)

  • Permit any federal government employee to accept gifts, benefits, offices, or titles from any King, Prince, or foreign State. 
  • Permit any state to impose fees, taxes, or duties on imports or exports.  If Congress grants such permission, all of those funds go to the US Treasury.
  • Permit any state to maintain troops or war ships in peace time, enter into any agreement or contract with another State, or with a foreign power, or engage in war, unless actually invaded, or in emergency.

Other than that, …

(Article I, Section 8)

  • impose and collect taxes, duties, and tariffs
  • pay the nation’s debts
  • provide for the common defense
  • provide for the general welfare of the United States
  • borrow money on the credit of the United States
  • regulate commerce with foreign nations, and among the states, and with the Indian Tribes
  • establish uniform naturalization laws
  • establish uniform national bankruptcy laws
  • coin money and regulate its value
  • regulate the value of foreign currency
  • fix the standard of weights and measures
  • provide for the punishment of counterfeiting the securities and currency of the United States
  • establish post offices and post roads
  • establish trademark, patent, and copyright laws to protect the work of artists, authors, and inventors
  • create federal courts below the level of the Supreme Court
  • define and punish piracy and felonies committed in international waters, and crimes against international law
  • declare war
  • grant commissions authorizing people to commit acts of piracy
  • make rules concerning captures (of pirates) on land and water
  • raise and support armies (but no appropriation of money for that purpose can be for more than two years
  • provide and maintain a navy
  • make rules for the government and regulation of the army and navy
  • provide for mobilizing the state National Guards to execute federal law, suppress insurrections and repel invasions
  • provide for organizing, arming, and disciplining the National Guard, and for regulating Guard units when they are mobilized for the United States (states will retain the power to appoint officers and train Guard troops according to the discipline prescribed by Congress)
  • enact all laws governing Washington, DC
  • enact all laws governing any place purchased by the federal government within any state, with the consent of the state legislature,  to construct, maintain, and operate forts, magazines, arsenals, dock-yards, and other necessary buildings, and

This is the big one.  Get ready.

  • to make all laws that are necessary and proper to execute the previous powers, and all other powers bestowed by this constitution, in the United States government or in any of its departments or officers.

In the late 18th century, complex, sprawling sentences with grandiose language were the norm.  Modern language is simpler, and people just aren’t used to the old customs.  That’s why most people find it so difficult to read our founding documents.

To understand how much power Congress has, we must set aside some language for clarity.
This is a direct quote from the Constitution (Article 1, Section 8).

The Congress shall have Power to ... provide for ... the general Welfare of the United States … And 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.

“General Welfare” means that Congress has the power to make any laws that it believes to be in the best interest of the United States.  And it has the power to make any laws “necessary and proper” to implement those laws.

It’s called the elastic clause because it stretches to give Congress just about any power that the Constitution does not specifically prohibit.

That’s why public assistance programs, all of the cabinet departments and other federal agencies, civil rights legislation, Obamacare, and more are constitutional, even though the Constitution doesn’t specifically mention them.

Countless political considerations influence whether a particular bill fails, passes, is amended, or vetoed, or the veto is overridden, but that’s why we have debates, free speech, a free press,  and lobbying.

And THAT is why we must read ALL of the words in our Constitution.
Go ahead.  It only takes an hour.

For More Information
Read the Constitution
Congressional Leadership
Impeachment:  Myths, Facts, and History

Why We Need More Lobbyists
You Can Influence Government Regulations

Contact Pat for email notice of all new Community Matters articles.