Patricia A. O'Malley
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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.
CONGRESS MAY NOT
(Article I. Section 9)
Congress may, but is not required to
(Article I, Section 9)
Other than that, …
CONGRESS HAS THE POWER TO
(Article I, Section 8)
This is the big one. Get ready.
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
Impeachment: Myths, Facts, and History
Why We Need More Lobbyists
You Can Influence Government Regulations
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