54 Chapter 2Chapter 2 || The Constitution and the FoundingThe Constitution and the Foundingdeclare war, “raise and support armies,” make rules for the military, and create and
maintain a navy. Most important is the so-called power of the purse—control over
taxation and spending—given to Congress in Article I, Section 8, of the Constitution:
“No money shall be drawn from the Treasury, but in consequence of appropriations
made by law.” Or, as Madison put it, “the legislative department alone has access to the
pockets of the people.” One other exclusive congressional power that has received new
attention during the first years of the Trump presidency is the “emoluments clause,”
which gives Congress the sole power to consent to any government official’s receipt of
anything of value from a foreign state. Lawsuits filed in federal court contend that the
Trump family’s ownership of hotels that are frequented by foreign officials in business
with the federal government constitutes a violation of the emoluments clause. Two
of these cases, brought by Maryland and Washington, D.C., and by 200 members of
Congress, have been permitted to proceed.
Congress’s exclusive powers take on additional significance through the necessary
and proper clause, also known as the elastic clause. It gives Congress the flexibility 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.” This broad grant of power
meant that Congress could pass laws related to any of its exclusive powers. For example,
although the Constitution did not explicitly mention Congress’s right to compel people
to serve in the military, its power to enact a draft was clearly given by the necessary and
proper clause, in conjunction with its power to “raise and support armies.”
In contrast to Congress’s numerous and specific exclusive powers the Constitution
grants very limited exclusive powers to the president. The president is the commander
in chief of the armed forces, has power to receive ambassadors and foreign ministers,
and may issue pardons. While these powers are fewer in number than those of Congress,
they are consequential. In addition to the concern about possible war with North
Korea discussed at the beginning of the chapter, President Trump also created a stir in
2017 when he explored the possibility of preemptively granting pardons to everyone,
including himself, targeted by the Justice Department’s Russia investigation.^19 He also
thrilled supporters and angered opponents when he granted a pardon to Joe Arpaio, the
controversial sheriff from Arizona who had been convicted of criminal contempt of court
for ignoring a federal judge’s injunction concerning his implementation of immigration
law.^20 The president’s most important powers are contained in the executive powers
clause that says: “The executive power shall be vested in a President of the United States
of America” and in the directive to ensure “that the laws are faithfully executed.” As we
see later in the chapter, these Article II clauses impart most of the president’s power.
The courts did not receive nearly as much attention in the Constitution as either
Congress or the president. Alexander Hamilton argued in Federalist 78 that the Supreme
Court would be the “least dangerous branch,” because it had
“neither the power of the purse nor the sword.” The most
important positive powers that the framers gave the Supreme
Court were lifetime tenure for justices “during good behaviour”
and relative independence from the other two branches. The
critical negative power of judicial review, the ability to strike down
the laws and actions of other branches, will be discussed later.Shared Powers
Along with dividing the exclusive powers between branches, the
Constitution’s system of checks and balances designates somepower of the purse
The constitutional power of Congress
to raise and spend money. Congress
can use this as a negative or checking
power over the other branches by
freezing or cutting their funding.necessary and proper clause
Part of Article I, Section 8, of the
Constitution that grants Congress
the power to pass all laws related to its
expressed powers; also known as the
elastic clause.Congress alone has “the power of the
purse” to fund government programs.
Although President Obama ordered the
“troop surge” in Afghanistan, Congress
had to continue appropriating money to
pay for the war.Full_03_APT_64431_ch02_030-069.indd 54 16/11/18 1:34 PM