Law and Politics

Start Free Trial

1. The Constitution of the United States of America is a brief document outlining the boundaries of the American federal government. Discuss in depth the expansion of power obtained by Congress, the presidency and the judiciary paying close attention to the original outlines within the Constitution: Articles I-III. Remember that each branch of government has seen its powers expand beyond what was originally written; what is the genesis of these additional powers? Each branch is different in this regard so be specific: examples should be included to bolster your essay. And most importantly, is this expansion of power (outside of the framework of the formal amendment process) just? Why? 2. What is Federalism? Describe in detail the continuous discussion/argument over state power verses federal power. Include specific relevant court cases/current issues to support your essay. Furthermore, is there a point of apparent contradiction written within the Constitution itself? Can you please identify parts in the Constitution that seemingly direct us in competing directions? Who should have more power? What should the relationship look like in your eyes?

Expert Answers

An illustration of the letter 'A' in a speech bubbles

Article I of the Constitution grants Congress a broad range of powers for legislative activity. Congress is provided with the ability to regulate interstate commerce and commerce with foreign nations, the ability to raise and regulate an army and navy, the ability to declare war, the ability to raise revenue, the ability to borrow money, and the ability to impeach the President. Congress has done little to expand its power over the executive and judicial branches over the years, largely because it was granted significant powers initially. Congress has engaged in some minor expansions of its authority. For instance, neither house of Congress is permitted to adjourn for more than three days without the consent of the other house. Today, Congress can get around that by having extended recesses or by using gimmicks where one Congressperson opens business for the day and then immediately places the chamber in recess, thereby allowing members to attend to their home districts without adjourning. The one area where Congressional power has expanded is in the oversight process. Congress's oversight power is implicit, largely because the executive branch did not exist in its current incarnation when the Constitution was drafted. However, Congress has engaged in substantial oversight in ways that the Founders might not have anticipated.

The president was granted relatively limited power by the Constitution. The president is the commander in chief of the army and navy, may sign treaties (which must be ratified by Congress), and may nominate individuals to fill ambassadorships and Supreme Court seats, as well as other positions created later. The executive branch has expanded its power significantly. An exploration of the use of armed forces for combat without a declaration of war could show a significant encroachment on the powers of Congress. A similar examination of the growth of administrative agencies tasked with regulatory authority and the use of executive orders would also show a significant usurpation of power. However, in most instances, the executive branch has not usurped Congressional powers. Instead, Congress has often shifted authority onto the Executive Branch.

The judicial branch is granted very little authority in the Constitution. Section 2 of Article III list the types of cases which may be heard in the Supreme Court by original jurisdiction. The Court has not had much opportunity to expand its power, though in Marbury v. Madison the Court asserted its authority (not mentioned in the Constitution) to interpret the Constitution and, where necessary, to strike down laws passed by Congress and signed by the President.

Whether the expansion of power by any branch is just must ultimately depend on the perspective of the assessor. The expansion of power of one branch necessarily removes power from the other branches, which could destabilize the Constitutional order. However, conditions today are significantly different than in 1787, and it is possible that the Constitutional order, as written, would be inadequate today.

Federalism consists of a duel sovereignty construction, in which the federal government is supreme but limited, while the States are inferior in shared areas but supreme in exclusive areas. When the federal government passes a law, all states must follow it, though the federal government's lawmaking authority is limited. The states have a much greater range of action and, as long as they do not directly contradict valid federal laws, may exercise their authority to any Constitutional extent.

There has always been a significant debate over the role of federal and state authority in the United States. More federal authority is necessary in areas where the actions of one state can significantly impact other states, but a plausible argument can be made to justify almost any federal action on this ground. Respecting a greater authority for states allows different states to seek different solutions to problems, which could ensure the most effective solution is found somewhere. The Supreme Court has weighed in on the issue of federalism several times, as the authority of the states is protected by the Tenth Amendment. The Supreme Court has issued five major anti-commandeering cases: Prigg v. Pennsylvania, New York v. United States, Printz v. United States, Independent Business v. Sebelius, and Murphy v. NCAA. The Supreme Court also determined in US v. Lopez and US v. Morrison that Congress had exceeded its authority under the Interstate Commerce Clause in seeking to criminalize intrastate transactions that should have been left to the states.

The Constitution is designed to set the three branches against one another. It is also designed to set the federal government and the states against each other. By creating defined yet partially overlapping areas of authority, the Founders hoped to use the ambition of politicians to prevent the usurpation of power by any single entity. This can be seen in the issue of armed force, where Congress has the sole discretion to declare war; the president commands the armed forces and can engage in hostilities without a declaration of war. Commerce is a significant area of overlap between the states and the federal government, as the line separating inter- and intrastate commerce is murky at best. There is substantial debate over whether any individual entity is currently too strong and where power should truly rest.

Approved by eNotes Editorial Team