Expressed Powers

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The term “expressed powers” refers to the powers that the Constitution, quite literally, expresses for the different branches of government. For example, expressed powers dictate the powers of Congress in more detail. This is because the Framers, or the individuals who drafted the Constitution, believed Congress was to be the most powerful branch of government. To explore this concept, consider the following expressed powers definition.

Definition of Expressed Powers

Noun

  1. The powers of government, as expressed clearly in the U.S. Constitution.

Origin

1787

Expressed Powers of Congress

The expressed powers of Congress are perhaps the clearest of all the powers expressed in the Constitution. This was due to the belief of the Framers of the Constitution that Congress would be the most powerful branch of government. Some examples of the expressed powers of Congress include:

  • The power to allow foreigners to become U.S. citizens
  • The power to protect the work of artists and inventors by establishing and enforcing copyright and patent laws
  • The power to not only punish pirates who threaten the U.S., but also to hire pirates to invade foreign countries

Ironically, while most Americans believe the President is the most powerful government authority in the land, that title, in fact, belongs to Congress. The President has the power to enact legislation, but the Constitution largely restricts what he can and cannot do.

The powers of Congress, on the other hand, are, by far, broader and have a wider reach than those of the President. This is because there is a system of checks and balances inherent in the nature of how issues move through Congress – requiring a majority vote of all the representatives.

List of Expressed Powers

There are 27 expressed powers of Congress detailed in the Constitution, and this list of expressed powers grants Congress a great deal of authority over policies both foreign and domestic. The Constitution delineates certain powers for both the judicial and executive branches of government as well, but Congress’ powers are the most well-defined.

While some of these expressed powers are mentioned above, what follows is a list of some of the other expressed powers that the Constitution bestows on Congress:

  • The power to levy taxes
  • The power to regulate commerce and currency, and to punish those who create counterfeit bills
  • The power to declare war and raise an army
  • Authority over the U.S. Navy
  • The power to take land from the states and re-appropriate it for federal purposes

Perhaps one of the broadest powers Congress holds is the power to “make all Laws which shall be necessary and proper for carrying into Execution the foregoing powers….” In other words, if Congress must create new laws to help them carry out the provisions of the aforementioned powers, then the Constitution grants them the power to do that too.

Expressed Powers Example Involving President Bill Clinton

An example of expressed powers occurred in the matter of Clinton v. City of New York (1998). In 1996, the Republican Congress passed the Line Item Veto Act of 1996. Despite being a Democrat, President Bill Clinton approved the bill and signed it into law. The Line Item Veto Act was self-explanatory in that it allowed the president to veto single line items in a bill, rather than canceling the funding for the entire bill because of one item he disagreed with.

After President Clinton began exercising his line item veto, several entities, including the City of New York, filed suit against the use of the veto. Specifically, these entities sued the Clinton administration over the use of the line item veto on the Balanced Budget Act of 1997. Their complaint was that they suffered damages as a result of losing funding that they had originally earmarked for healthcare.

Lawsuit and Appeal

The U.S. District Court for Washington D.C. found in favor of the plaintiffs, calling the use of the line item veto an unconstitutional violation of the president’s expressed powers. While normally a case goes through several appellate courts, the plaintiffs appealed their case directly to the U.S. Supreme Court, as the legislation called for an expedited appeals process.

The Supreme Court ultimately agreed with the District Court’s decision. Writing for the majority, Justice Stevens argued that the Constitution made it clear, through its designation of the President’s expressed powers, to veto legislation. Article I of the Constitution discusses how a president may return any legislation passed by Congress with his objections to it before it becomes law.

Once returned, the legislature can either:

  1. amend the legislation and return it to Congress, or
  2. override the president’s veto through a successful vote of two-thirds of the members of both houses.

The distinction that Stevens highlights is that the Constitution’s expressed powers allow the president to use his veto before a statute becomes law. The Line Item Veto Act, however, allowed the president to modify laws that Congress had already enacted.

In the Court’s Own Words

In the opinion offered by the Court, Justice Stevens wrote:

“There are powerful reasons for construing constitutional silence on this profoundly important issue as equivalent to an express prohibition. The procedures governing the enactment of statutes set forth in the text of Article I were the product of the great debates and compromises that produced the Constitution itself. Familiar historical materials provide abundant support for the conclusion that the power to enact statutes may only ‘be exercised in accord with a single, finely wrought and exhaustively considered, procedure.’ (citation omitted). Our first President understood the text of the Presentment Clause as requiring that he either ‘approve all the parts of a Bill, or reject it in toto.’ What has emerged in these cases from the President’s exercise of his statutory cancellation powers, however, are truncated versions of two bills that passed both Houses of Congress. They are not the product of the ‘finely wrought’ procedure that the Framers designed.”

Related Legal Terms and Issues

  • Congress – The legislative branch of the United States federal government, composed of the House of Representatives and the Senate.
  • Legislation – A law, or body of laws, enacted by a government.