64 Chapter 2Chapter 2 || The Constitution and the FoundingThe Constitution and the Foundingthat faced the 1st Congress, and members spent more than a month debating the topic.
The record of the debate is the most thorough examination of implied powers ever
conducted in Congress. However, Congress ended up not taking any action on the
issue, which left the president’s removal power implicit in the Constitution.
Issues concerning implied powers continue to surface. The president’s
appointment powers have recently evolved as the Senate has played a much more
aggressive role in providing its “advice and consent” on presidential nominations
to the federal courts. As we explore in Chapter 14, in the past 20 years the Senate
has blocked court appointments at a significantly higher rate than it did in the
first half of the twentieth century. The relevant language in the Constitution is
the same, yet the Senate’s understanding of its role in this important process has
changed. The president’s power to remove appointees also recently came into play
when President Trump fired FBI Director James Comey, who was investigating the
Trump campaign’s connections to Russia. This situation raised the constitutional
question of when (or whether) the president’s removal of one of his or her appointees
constitutes an obstruction of justice. Presidential use of executive powers to go
around Congress when it declines to act on issues the president deems important also
demonstrates the ambiguous nature of constitutional powers. For example, Obama’s
executive actions on immigration policy and EPA rules concerning carbon emissions
and Trump’s use of executive orders to impose a travel ban on specific countries
to limit the threat of terrorism were viewed as either appropriate and necessary
executive action or “constitutional overreach,” depending on who you ask.
Public opinion and social norms also influence the prevailing interpretation
of the Constitution, as is evident in the evolving meanings of capital punishment
(the death penalty) and freedom of speech. When the Constitution was written,
capital punishment was broadly accepted, even for horse thieves. The framers were
concerned only that people not be “deprived of life, liberty, or property without the
due process of law.” Therefore, the prohibition in the Eighth Amendment against
“cruel and unusual punishments” certainly did not mean to the framers that the death
penalty was unconstitutional. However, in 1972 the Supreme Court struck down
capital punishment as unconstitutional because it was being applied arbitrarily.^27The Eighth Amendment’s ban on
“cruel and unusual punishments” is
generally viewed as excluding capital
punishment, but the execution of
juveniles and the mentally impaired
has been found unconstitutional. This
picture shows the electric chair in the
Southern Ohio Correctional Facility in
Lucasville.TA B L E
2 .1115th Congress
(2017–2018)Require that the federal budget be balanced.
Abolish the electoral college to provide for the direct election of the president and vice president.
Protect the voting rights of the citizens of the United States.
Amend the First Amendment to allow limitations on federal campaign contributions and expenditures.114th Congress
(2015–2016)Require that the rights extended by the Constitution be granted only to natural persons (not corporations).
Repeal the Sixteenth Amendment (income tax).113th Congress
(2013–2014)No treaty, executive order, or agreement with another nation can diminish the rights of U.S. citizens.
All laws that apply to U.S. citizens must apply equally to U.S. senators and representatives.Source: http://thomas.loc.gov (accessed 7/14/17).Amendments Introduced in Congress That Did Not Pass
Many proposed constitutional amendments have almost no chance of passing. Indeed, most of those listed here did not even make
it to the floor of the House or Senate for a vote. Why do you think a member of Congress would propose an amendment that he or
she knew would fail?Full_03_APT_64431_ch02_030-069.indd 64 16/11/18 1:35 PM