Wednesday, March 5, 2014

Lesson 08: Legislative Powers

Constitution Class Handout
March 6, 2014
Instructor: Douglas V. Gibbs

Faith Armory
41669 Winchester Rd.
Temecula, CA


·   Legislative Branch

·   Legislative Powers
·   House of Representatives
·   U.S. Senate
·   Elections
·   Procedure
·   Compensation, Privileges, Restrictions

Legislative Powers

All Legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.

Article I establishes the Legislative Branch of the federal government.

Article I, Section 1 of the U.S. Constitution establishes the two parts of Congress, and grants all legislative powers to the two houses of Congress.

When studying the language used in Article I, Section 1, the original intent by the Founding Fathers becomes obvious.

The first word in the first section of Article I is the word “all.”  The fascinating thing about the word “all” is that it means, as shocking as it may seem, “all.”

The following words are “legislative powers.”  Legislative powers are the ability to make law, modify law, repeal law, and anything else that has to do with affecting law.

The next word is “herein,” which strangely enough means “here in,” as in “here in this constitution.”

The word “granted” follows “herein.”  “Granted” is defined as “to give,” or “to allow,” or more specifically “to legally transfer.”  If powers are granted, then there must be a “grantor,” as well.  As we learned in our discussion regarding The Preamble, the “grantor” in this case is the States.

“Shall be” is definitive.  In other words, the word “shall” does not mean “ought to,” or “maybe.”  “Shall” means that “it is,” or “it will be.”

“Vested” is much like “granted.”  Vested is a legal transfer of something, or in this case, an allowance to have legislative powers at the federal level.

The Congress of the United States is the legislative branch of the federal government, and this clause indicates that not only will the Congress be granted all legislative powers given to the federal government, but that the branch of government consists of two houses; a Senate and House of Representatives.

So let’s review.  All legislative powers, according to this clause, are granted to the Congress by the States for the purpose of making law, modifying law, or repealing law.  The powers are herein granted, which means that the laws must fall within the authorities granted by the text of the U.S. Constitution.  In other words, laws made must remain consistent with the “powers herein granted.”

When one considers this clause, it becomes clear that when members of the judiciary legislates from the bench, or the President issues an executive order to modify a law, such action is unconstitutional.  After all, “all legislative powers” were granted to the Congress, not to the judicial branch, or the Executive branch.

Since all legislative powers belong to the Congress, it would also then be reasonable to consider any regulations by federal departments that are not in line with laws made by the Congress that are in line with the authorities granted by the Constitution to be unconstitutional as well.  Once again, all legislative powers belong to the Congress, therefore any “legislative actions” by regulatory agencies are not in line with the original intent.

Once again, we must be reminded of who gave the federal government those powers herein the Constitution in the first place? Those powers that the federal government has were “granted” by someone.  The authorities the federal government enjoys were granted by the States.  “We The People of the United States” granted those powers to the federal government.  Therefore, if the federal government acts in a manner that is not consistent with the contract between the States and the U.S. Government, the States have the option to ignore those unconstitutional actions by the federal government.  This action of ignoring unconstitutional law is the States’ way of being the final arbiters of the Constitution.  The term for this kind of action by a State is “nullification,” which we will go into more detail of when we get to Article VI.


Congress of the United States: The legislative branch of the federal government which consists of two houses; a Senate and House of Representatives.  The Congress is the only part of the federal government granted the authority of legislative powers.

Granted: To confer, give, or bestow. A gift of legal rights or privileges, or a recognition of asserted rights, as in treaty.  To legally transfer.

Legislative Powers: The ability to make law, modify law, repeal law, and anything else that has to do with affecting law.

Nullification: State power to ignore unconstitutional federal law.

Questions for Discussion:

1.  If only Congress can make law, then why do some politicians believe that Executive Orders can modify law, or that regulatory agencies can create new regulations to enforce laws that were never passed by Congress?

2.  The word “granted” reminds us that all powers once belonged to the States, and some of those authorities were “granted” to the federal government for the purpose of carrying out the tasks necessary for the protection, preservation, and promotion of the union.  If the federal government was created by the States, then how can statists justify their belief that all federal laws trump all State laws?

3.  Why do you think the Congress has two legislative houses?


Free Dictionary by Farlex;

Larry Schweikart and Michael Allen, A Patriot’s History of the United States; New York: Sentinel (2004).

Madison’s Notes on the Constitutional Convention, Avalon Project, Yale University:

Article I, Section 2; House of Representatives

Article I, Section 2 establishes, and defines, the House of Representatives.  The members of the House of Representatives are divided among the States proportionally.  As it is today, The House of Representatives was the voice of the people in the federal government.  Each Representative is chosen to serve for two years, which means every two years every Representative is up for re-election, if they choose to run.

This clause establishes that to be a Representative the candidate must be at least twenty-five years of age, and been a citizen of the United States for at least seven years.  The age is lower than for Senators.  Representatives were not expected to be as politically savvy as the Senators, and tended to have less experience.  The age requirement simply reflected  that.  The younger someone is, the less wisdom and experience they tend to have.  Political knowledge came with age, the founder’s reasoned, so the age for being a representative was not as high as with a Senator.

Divided allegiance was a serious concern to the Founding Fathers, so the reasoning for the Representatives to have been citizens of the United States for at least seven years was largely in order to ensure that the Representative had no split loyalties.  Seven years, for a Representative, was assumed to have been long enough for the Representative to have thrown off any allegiances to other nations.

In the third clause of Article I, Section 2, is the 3/5s clause, which was changed by the 14th Amendment following the American Civil War.

The Southern States used slaves for their agricultural economies.  The southern states were needed to ratify the new constitution.  As a condition for ratifying the Constitution, the southern states demanded that the slaves be counted as one whole person each.  The idea was that if the slaves were counted as whole persons, the apportionment would tip the scales in their favor through increased representation in the new United States House of Representatives. After all, the white populations in the southern states were lower in number when compared to the northern states due to their rural nature.

The Northern States, under the heavy influence of merchants, political elitists, and a group of abolitionists, wanted the slaves counted as "zero" in order to reduce the number of representatives the southern states would receive, which would give the majority to the northern states, thus giving the north more legislative power.  With this additional voting power in the House of Representatives, the northern states sought to influence the federal government through legislation.  The plan was to use their legislative power to tyrannically force the southern states into submission.

In the interest of compromise, to convince the southern states to ratify the constitution, while giving the northern states the satisfaction that the southern states did not get exactly what they wanted, the decision was made that slaves would be counted as 3/5 of a whole person for the sake of apportionment. In other words, it was not a declaration that they believed blacks to be less than a person, but simply to affect the census in such a way that too much power through apportionment would not be given to either The North or The South, while also ensuring that the Constitution got ratified.

Article I, Section 2, Clause 3 also establishes the census, requiring a head count be taken once every ten years.  The census was authorized in order to determine the enumeration for establishing the number of Representatives each state would receive.  The clause also indicates that the number of Representatives shall not exceed one for every thirty thousand.  This means that there can not be more than one Representative for a district of thirty thousand.  However, it does not indicate that there must be one Representative per thirty thousand.  If that was the case, we would have thousands of Representatives.

Article I, Section 2, Clause 4 states that whenever vacancies happen in the House of Representatives, it is the duty of the Executive Authority to issue Writs of Election to fill such vacancies.  What this means is that the Governors of the States have the duty to ensure there is a special election to fill any vacancies that may happen in the House of Representatives.

The House of Representatives chooses for itself its Speaker of the House, and other officers.

According to Article I, Section 2, Clause 5, the House of Representatives has the sole power of impeachment.  To impeach…………………………….

Later in the Constitution, specifically in Section 7 of Article I, we also learn that all bills for raising revenue shall originate in the House of Representatives. What that does is give the House the purse strings of the federal government, which in turn gives The People (remember, the House is the people’s voice in the federal government) the ability to stop anything they feel necessary to stop, by simply defunding it.

Questions for Discussion:

1.  Why do you think representatives are only elected for two years?

2.  Why is it significant that only the House can originate bills for raising revenue?

3.  Why is the power of impeachment belonging to the House so important?


Madison’s Notes on the Constitutional Convention, Avalon Project, Yale University:

Philip B. Kurland and Ralph Lerner, The Founder’s Constitution - Volume Two - Preamble through Article I, Section 8, Clause 4; Indianapolis: Liberty Fund (1987).

Article I, Section 3 - The U.S. Senate

Article I, Section 3 establishes and defines the U.S. Senate.  The representation of the States in the U.S. Senate is equal, two per State.  The Senators serve for six years, which means that every two years an election is held for one-third of the Senator’s seats.  The required minimum age of a Senator is five years older than that of a Representative, giving us a clue that the importance of life experience was considered by the Founding Fathers to be more important in the U.S. Senate.  Allegiance to the United States is also more important in the U.S. Senate, since Article I, Section 3, Clause 3 indicates that Senators need to be nine years a citizen of the United States, rather than the seven required of Representatives.

Article I, Section 3, Clause 4 establishes the Vice President as the President of the Senate.  The Vice President, though a member of the Executive Branch, is also connected to the Legislative Branch.  The Vice President may preside over the sessions of the U.S. Senate, and even participate in the debates, but in the end, the Vice President has no vote in the U.S. Senate, except as the tie-breaking vote.  During the early days of our nation the Vice President attended ……………………………….

As with the House of Representatives, the Senate chooses its own officers.  One of those officers is the President pro tempore, which is the President of the Senate when the Vice President is not present.

The House of Representatives has the sole power of impeachment.  Article I, Section 3, Clause 6 gives the U.S. Senate the authority to try all impeachments.  No conviction can be reached unless two-thirds of the U.S. Senate membership is present.  Impeachment cannot extend further than the removal of the impeached from office, and the disqualification to hold any office in the future.  However, a legal case can still be brought against the convicted from other sources, according to the law.

U.S. Senators were originally appointed by the legislatures of the individual States.  This made the Senate the voice of the States in the federal government.  The appointment of U.S. Senators was changed in 1913 through the 17th Amendment.  At that time, the choosing of the U.S. Senators was given over to the popular vote of the people.

The 17th Amendment changed the dynamics of our governmental system.  Note that most everything the Executive Branch does is subject to the consent of the Senate. The Senate ratifies treaties, holds hearings for any appointments the Executive Branch nominates, and the Senate holds the sole power for holding hearings on impeachments.  This is because the federal government is subject to approval by the States.  The States granted the federal government its powers in the first place, after all.

The House of Representatives, being the voice of the people, and the Senate being the voice of the States, also served as a check and balance.  The people, through the House, checked the States via the Senate, and vice versa.  Together, both houses also have the ability to override a veto with a 2/3 vote. This system was designed to enable the People and the States to constrain each other through their appropriate congressional houses, and to constrain the executive together through the power of a vote.


Impeachment: To charge with misconduct.  Formal process that may lead to removal of an official accused of unlawful activity; impeachment does not mean the removal from office, though removal from office is often the result of impeachment proceedings.

President pro tempore:  Second highest ranking official of the United States Senate. Vice President is President of the Senate and the highest-ranking official of the Senate despite not being a member of the body. During the Vice President's absence, the president pro tempore presides over its sessions or appoints another senator to do so. The president pro tempore is elected by the Senate and is customarily the most senior senator in the majority party.

Questions for Discussion:

1.  As President of the Senate, what kind of role should the Vice President play in the day to day activities of the United States Senate?

2.  Why do you think the House of Representatives has the sole power of impeachment, but the Senate has the task of hearing the case?

3.  How are the dynamics of our governmental system different in relation to how the Senators are appointed, or voted for?

4.  How was the Senate expected to check the House of Representatives, and work together with the House to check the Executive and Judiciary?


Madison’s Notes on the Constitutional Convention, Avalon Project, Yale University:

Article I, Section 4; Elections for Senators and Representatives

Article I, Section 4 establishes that each State may have its own methods for electing members of the Congress, and mandates, or requirements, and that Congress must meet at least once per year. This means that it is up to the State Legislatures to make the rules for elections, including the federal elections held in their State.  Understanding this, it becomes clear that when the hanging chad controversy arose during the year 2000 Election that pitted Al Gore against George W. Bush, the case should have remained with the state legislature to decide on, and should have never gone to the courts.

In Clause 1 of Section 4, though the Constitution specifically gives the times, places and manner of holding elections to the State’s legislatures, the United States Congress is given the ability to pass laws to alter parts of these procedures.  When Congress acts upon this authority, it is often in a manner to make an election practice uniform among the States.  Note that Congress is not given that ability in regards to the places of choosing Senators.  Remember, the United States Senators were appointed by the State Legislatures at that time.  Appointment of Senators by the States was changed to a vote by the people by the 17th Amendment in 1913.

Clause 2 requires for Congress to assemble at least once per year.  The day of their first meeting was changed from December to January by the Twentieth Amendment.

Questions for Discussion:

1.  Why do you think the authority for prescribing the times, places, and manner of holding elections was given to the State Legislatures?

2.  Why was Congress given the allowance to pass laws that may make or alter such regulations?

3.  Why was the federal government prohibited from influencing the places for choosing Senators?


Madison’s Notes on the Constitutional Convention, Avalon Project, Yale University:

Article I, Section 5; Procedure

Article I, Section 5 requires Congress to have a minimum number of members present in order to do business.  That majority constitutes a quorum, and if the Congress deems it necessary, may set fines for members who do not show up. The houses of Congress may remain in session, during which no formal business is conducted because the house does not have a quorum, so as to prevent executive actions that may be carried out during recess.  This kind of session is called a pro forma session.


Section 5 also states that each house may have its own rules, keep a journal to record proceedings and votes, and that neither house may adjourn without the permission of the other. Section 5 also establishes that if a member of a house does not follow the established rules, the house may punish its members for disorderly behavior, and by a two thirds vote may actually expel a member from Congress.

The establishment of rules, holding a hearing in regards to the breaking of those rules, and punishing a member for his behavior, as set forth by Article I, Section 5, was recently used when Charles Rangel broke the rules of the House of Representatives.  He faced a panel for his actions, and was punished by censure.

The mandate to keep a journal to record proceedings and votes was included in this section because the Founders wanted government to be transparent, accessible, and accountable to the people.


Adjourn: Suspend proceedings to a later time and/or place.

Censure: Procedure for publicly reprimanding a public official for inappropriate behavior. There are normally no legal consequences. Censure is not mentioned in the Constitution, but is a procedure devised by the legislature as a tool for formal condemnation of a member of the congressional body.

Pro Forma Session: A session in either house of the United States Congress at which no formal business is expected to be conducted, so as to fulfill the obligation "that neither chamber can adjourn for more than three days without the consent of the other."  Pro forma sessions are also used to prevent the President from pocket-vetoing bills, calling the Congress into a special session, and to prevent the President from making recess appointments.

Quorum: Minimum number of members of an assembly necessary to conduct the business of that group.

Questions for Discussion:

1.  To conduct business, the houses of Congress need a quorum.  If they do not have a majority, they may remain in session through a rule established by Congress called pro forma.  What advantages does pro forma give the houses of Congress when it comes as serving as a check against the executive branch?

2.  Why do you think neither house can adjourn without the permission of the other?

3.  The houses of Congress establish their own rules of procedure.  If a member breaks any of these rules, Congress also has the authority to punish the rule breaker.  One type of punishment is called censure.  How is censure an adequate punishment?

4.  How has the concept of transparency changed over the last two hundred years?


Edwin Mora, “Top Democrat Dodges Question on Constitutionality of Obama Appointments, Says Pro Forma Sessions Are ‘Games Being Played’,” (January 6, 2012):

Joseph Andrews, A Guide for Learning and Teaching The Declaration of Independence and The U.S. Constitution - Learning from the Original Texts Using Classical Learning Methods of the Founders; San Marcos: The Center for Teaching the Constitution (2010).

Madison’s Notes on the Constitutional Convention, Avalon Project, Yale University:

Article I, Section 6; Compensation, Privileges, Restrictions

Article I, Section 6 goes over compensation, and the rules regarding such. Section 6 also establishes that members of Congress may not be detained while traveling to and from Congress, and that they cannot hold any other office in government while in Congress.  The compensation was expected to remain low, for the founders did not wish for the compensation to be so high that it became the motive for seeking office.

Protection from arrest while traveling to and from Congress was not only a privilege based on those enjoyed by their counterparts in the British Parliament, but also a protection from political enemies that may wish to keep certain members of Congress from voting.

This section also indicates that no member of Congress shall be appointed to a later office if while in Congress the office was created, or a raise in pay was enacted for that office.  For example, the position Secretary of State received a pay raise while Hillary Clinton was in the Senate, so technically she was not eligible for the position when she was appointed. To fix this, the Democrats applied the Saxby Fix, meaning they undid the raise, and Hillary Clinton received the compensation that was in place before the vote she participated in while in the Senate. The Saxby Fix, or a Salary rollback, is an unconstitutional action, for the clause is clear: “No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been increased during such time.”

The Saxby Fix, or the rollback of the salary, does not change the fact that the emoluments increased during the time Hillary Clinton was in the U.S. Senate.


Saxby Fix: Salary rollback. A mechanism by which the President of the United States can avoid restrictions by the United States Constitution which prohibits the President from appointing a current or former member of Congress to a position that was created, or to an office position for which the pay and/or benefits were increased, during the term for which that member was elected until the term has expired. First used in 1909, the Saxbe Fix is named for William Saxbe, a Senator appointed to Attorney General by Nixon in 1973.


Madison’s Notes on the Constitutional Convention, Avalon Project, Yale University:

Saxbe, William B. I've Seen the Elephant: An Autobiography. Kent State University Press (2000).

Copyright: Douglas V. Gibbs, 2014