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This is the 99% Invisible breakdown of the Constitution.
I'm Roman Mars.
And I'm Elizabeth Chappell.
Today we are finishing up our discussion of Article 1, which established the legislative branch of the federal government.
Our special guest for this episode is Elizabeth Warren, the senior Democratic senator from Massachusetts.
But first, Elizabeth Jo and I are going to spend some more time going through Article 1.
There is so much to cover in this part of the Constitution.
Last time we talked about the first seven sections, which describe the houses of Congress, who gets to be a member of the House and the Senate, how bills become federal law and which chamber plays which role in the process of impeachment.
And in this episode we're going to focus more on the back half of Article 1, which describes the powers of Congress.
So, where do you want to start?
All right.
Well, I think a useful way to think about the remainder of Article 1 is this.
We can talk about what Congress can do, what Congress is prohibited from doing, and then what the states are prohibited from doing.
And I thought we'd also talk about two powers of Congress that are important but non-obvious, even after we talk about Article 1.
Okay.
All right.
Let's do it.
So the remainder of Article 1 begins with Section 8.
And so Section 8 is very important, because it is the Constitution explicitly providing Congress with specific legislative powers.
And now one thing to keep in mind, Roman, is that our Constitution isn't the first one that we have.
That title belongs to the Articles of Confederation.
And the Articles of Confederation imagined a very different structure.
There was no federal judiciary, no executive, but there was a Confederation Congress which did have some familiar powers.
It could wage war, it could coin money, and it could set up post offices.
Okay.
But importantly, the Confederation Congress had no ability to impose taxes and no ability to regulate commerce at a national level.
So those two missing powers alone are some pretty major limitations.
You can't raise revenue for the federal government and you can't treat the entire country as one regulated national economy.
So our present Constitution is a reaction both to what worked and what didn't work in the Articles of Confederation.
So what are some of the things that, you know, Congress can now do?
Well, just like with the Articles of Confederation, it can declare war, coin money and set up post offices.
Okay.
Now it can protect and regulate intellectual property, including patents and copyrights.
But maybe most importantly, Section 8 gives Congress the power to regulate interstate commerce.
Yeah.
Yeah, that's right.
So the power as described doesn't say too much.
Congress has the ability to regulate commerce with foreign nations and among several states and with the Indian tribes.
But there are two developments that can help us understand why the Commerce Clause is so important today.
So the easy one is that today, unlike in 1787, say everything is touched by interstate commerce, right?
I mean, the fact that most of our goods... are made somewhere else.
In fact not just within the United States but around the world means that it's pretty easy for Congress to say we want to regulate something because it has some relationship to interstate commerce.
So that's made it a lot different and easy for Congress, just because of the way the world has changed.
Yeah, yeah.
And, as we've seen over the years of doing this show, regulating interstate commerce becomes the pretense for all kinds of other regulation when it comes to states.
Right, and that took a while, because over the course of some 80-plus years, the Supreme Court's interpretation of the Commerce Clause is what's important here.
It's the Supreme Court that allows Congress, through its interpretation of the clause, to start using this power in greater and greater ways.
And of course this all began during FDR's time, when the Supreme Court faced enormous pressure to let Congress respond to the Great Depression with national regulation.
And the commerce power isn't completely limitless, but it's so broad today that it isn't reserved just for regulating actual objects like cans or boxes that cross state lines.
There are today literally hundreds, maybe 700 laws that actually mention the Commerce Clause at the federal level.
And these are laws that regulate all kinds of different things.
The Endangered Species Act, federal criminal law, food terrorism, even civil rights laws are justified by the Interstate Commerce Clause.
Wow.
So yeah, it just becomes an outsized source of constitutional authority for Congress to regulate all kinds of things.
And so it's not that each of these powers have equal importance.
I would say the Commerce Clause has a really outsized importance in terms of Section 8 power.
Can you give an example sort of, either in specific or in the abstract, of how the commerce power is used to regulate a thing that isn't boxes and cans going over a border?
Sure.
So if Congress wants to criminalize something right, Congress doesn't have sort of broad authority to criminalize whatever they want.
That's something that the states can do, but Congress isn't allowed to do that.
Mm-hmm.
But they can say, look, we want to prevent firearm violence.
Funny joke, right?
This is hypothetical science fiction world.
Okay, go ahead.
Exactly.
So they can do that by simply saying, we want to regulate a certain kind of firearm.
You know, people can't, let's say, possess firearms. assault weapons.
And they can do so by simply pointing to the fact that a firearm, like an assault weapon, is used or made in interstate commerce.
So, even though a crime would happen with an assault weapon, let's say that would happen entirely within a state.
What really matters is there's some part of the federal law that specifically refers to interstate commerce.
And again, in today's world that's so easy because almost everything is in some way related to interstate commerce.
There are very few things that are entirely originated in one state and then never leave the state right.
So that's an example.
Okay.
And so that's commerce.
Now Section 8 also gives Congress the power to lay and collect taxes and to provide for the common defense and general welfare of the United States.
So this means that Congress has the ability to tax and to spend.
This is a very important set of powers here too, because Congress can certainly spend money on the federal government.
But it can also offer what's called conditional spending to the states.
In other words, Congress can tell the states look, if you want these federal funds, you can get them, but only if you abide by certain conditions.
Now the Supreme Court has said that the federal government can't force the states to do things directly.
But it's perfectly OK for the federal government to offer federal monies as kind of carrots to change behavior on the part of the states.
I don't know, Roman, do you remember No Child Left Behind?
I do.
Yeah.
Right.
I mean, that was a Bush era law about you know trying to, you know like, give extra money to support education.
Right.
Right.
That's the benevolent description of it.
Right.
So George W Bush signs the law in 2002 and No Child Left Behind.
That's right, says look states.
If you want this money, we want you to change the way that you run schools.
Right.
And there's a condition.
The condition is we want you to start testing kids in elementary school regularly.
We want to see if they're falling behind in math and reading.
And the states had to make sure that the students were proficient under the federal law.
That was a big change that happened around the country.
That's kind of like if you're of a certain age, you remember just all the time having to take these tests in elementary school.
Yeah.
Yeah.
I wish I was.
I wish I answered that differently.
That was that was a horrible time.
I mean my kids like had to go through different testing and it was like a whole month was kind of gone.
Yeah.
Devoted to testing.
Yeah.
Yeah.
And in 2015, President Obama signed the Every Student Succeeds Act, which watered down some of these requirements.
But there still is nevertheless a very large role that the federal government plays in education because of Congress's ability to impose conditional spending.
Right.
Here's another example closer to home.
You know how solo drivers of electric cars can use the carpool lanes?
We see them all the time, right?
Yeah, that's right.
So that's part of a 20-year-old federal funding program to encourage people to drive electric vehicles.
The law allows the states to permit this kind of even solo driver to use the carpool lane as long as they're using an electric vehicle.
But Congress this year failed to renew it.
So that's the end of the program.
And since states depend on federal funding for their roads, they have to comply with the new rules.
And that means no more use of the carpool lanes with electric vehicles.
Wow.
Okay.
Yeah.
So that's a big part.
So you can see how there can be some pretty dramatic changes just depending on whether or not the states want federal funding.
And, of course, they always want federal funding.
Yeah, yeah, yeah.
Of course.
Yeah.
So that's spending.
Not only does Congress have the spending power, it has the taxing power, too.
And the important reason behind taxing.
Remember the government needs to generate revenue in a dependable way.
All legislation imposing taxes has to originate in the House, the chamber most directly accountable to the people.
That's in Section 7, actually, of Article 1.
But just like with the spending power, the Supreme Court has played a really important role by expansively interpreting Congress's taxing power.
So the idea here is yes, of course, taxes are usually used to raise revenue for the federal government, but Congress can also impose taxes as a way to regulate behavior.
And it is in fact the taxing power of Congress that saved Obamacare.
Remember that?
Yeah.
Let's talk about that.
So remember the Affordable Care Act, also known as Obamacare, that was challenged in the Supreme Court.
And in 2012, the Supreme Court upheld big portions of the Affordable Care Act.
Now remember in its original form, the Affordable Care Act created a structure where we wanted everybody, both healthy and less healthy, to take part in the insurance market.
That's how health insurance works.
Now, one way the ACA did that was to require everybody to have health insurance.
Now, if you didn't, for whatever reason, you had to pay a financial penalty.
That was called the shared responsibility payment.
This scheme was called the individual mandate, if you'll recall.
And so the ACA needed this to work.
We got to have everybody or nearly everybody to buy health insurance.
So was this plan, get insured or pay, was that constitutional?
Well, in 2012, the Supreme Court said yes.
The individual mandate was a constitutional exercise of Congress's taxing power.
So as the Supreme Court interpreted it, the taxing power is very broad.
So Congress can use this power.
I mean, it wasn't really interested in raising revenue from this, but they wanted to sway people's behavior.
And that was perfectly okay because Congress has such broad taxing ability.
So the ACA is still alive after all these years, thanks in part to the taxing power.
Interesting.
OK, cool.
All right.
Now, Section 8 ends.
I don't think we'll have time to go through every portion, but let's end with something that's important.
And that is the Necessary and Proper Clause.
OK.
So this gives Congress the power to make all laws which shall be necessary and proper for carrying into execution the foregoing powers.
Okay.
So this idea of necessary and proper, these are vague terms.
Very vague.
Extremely vague.
So how does one determine what is necessary or proper?
Okay.
So the necessary and proper clause, it is kind of strange for that reason.
It doesn't seem to specify anything.
And you can think of it not as a standalone power for Congress but actually an extension of the other listed powers in Section 8.
So So the clause means that, for example, if Congress wants to use its commerce power, it can use any lawful means they want to exercise the commerce power.
The necessary and proper power is almost like an extension of the listed powers in the remainder of Section 8.
So think of federal agencies.
Like, why do they exist?
The Constitution gives Congress the ability to establish the positions of what the Constitution calls federal officers.
That's in Article 2.
And to ensure that a federal officer, let's say the Secretary of Education, can do his or her duties, Congress can establish a federal agency to help that officer do the duties under federal law that they're supposed to do.
And in fact, in 1979, Congress did exactly that when it created the Department of Education.
The Necessary and Proper Clause allows Congress to do that thing, even though there's no specific power to create the Department of Education.
So this is also a reminder that federal agencies are created by Congress and so can only be modified by Congress and can only be dismantled by Congress.
The president of the United States has no unilateral authority to destroy or get rid of a federal agency.
That would require lawmaking, and that's an Article I responsibility.
Just mentioning that, throwing that out there.
For no reason.
Interesting.
So there's also a power in Article I that is important, but I think pretty non-obvious.
So, Roman, what comes to mind when you hear that Congress has the power of the purse?
The power of the purse means that they're in charge of what to spend, and therefore everything that requires money is somehow controlled by Congress.
Yeah, I think that's like a pretty typical answer, that Congress has the ability to spend federal money.
But where does that come from exactly?
Because Section 8 says that Congress can raise revenue through taxing and can spend or provide for the common defense and general welfare of the United States.
So it looks like Congress has the authority to determine what it considers spending for the general welfare of the United States.
But what does that mean exactly?
Because every year, the president of the United States comes up with a proposed budget.
And every year Congress responds by coming up with appropriations or specifically designated ways to spend money from the Treasury.
But the spending clause doesn't explain totally the power of the purse, because it tells us that Congress can spend money.
But is Congress the only entity that can spend money?
Maybe you could imagine a system in which the president decides to spend some money and Congress decides to spend some money.
So the spending clause doesn't really mean that Congress is the exclusive authority for spending.
So that means we need to turn somewhere else.
And that's outside of Section 8.
Section 9 of Article 1 tells us a bunch of things that Congress cannot do.
And here's the important language.
The Constitution, in Section 9, says that no money shall be drawn from the Treasury but in consequence of appropriations made by law.
So this is interesting because the appropriations clause is not a power but a limitation.
But it's an important one that tells us something.
This appropriations clause says that federal funds can't be used unless there is a process of appropriations made by law.
Who makes the law?
Congress.
So you see the spending power just says that Congress can spend federal money.
But the appropriations clause, the one in Section 9 telling us what Congress can't do actually tells us that it's Congress who's in charge.
Congress is in charge of the spending authority.
Congress alone can determine how federal monies can be spent, not the president.
The executive branch is simply there to disperse those funds.
But only Congress decides how those funds should be spent.
So the only role in the power of the purse for the president of the United States is the regular process of lawmaking.
If Congress sends an appropriations bill to the president, the president can sign it or veto it.
That's all.
In other words, the president can spend only what Congress allows the president to spend.
So this is pretty important in understanding why shutdowns happen.
It's not because of a lack of funds.
It's that if there are any parts of the government that didn't receive new funding through a new appropriations bill, then those parts of government shut down.
Why?
Because they don't have the constitutional authority from Congress to spend that money.
Got it.
Okay.
Why couldn't they just put this all in one section?
I don't know.
Deliberately confusing, I guess.
And so the appropriations clause isn't the only subject addressed in Section 9.
This section lists other actions that Congress can't take.
So why don't we talk about the suspension clause?
Okay.
So this clause says that the privilege of habeas corpus shall not be suspended unless when, in cases of rebellion or invasion, the public safety may require it.
So habeas corpus?
It seems like a complicated Latin term.
It simply means that a person in government custody is trying to challenge the lawfulness of their detention.
So a court that decides that the person is not being held lawfully can order the government holding the person to release them.
You're not holding this person lawfully.
So this is an ancient writ.
It goes back to the 12th century.
And today, usually, it's used most often by prisoners to challenge their convictions.
But historically, the core idea was to challenge the imprisonment of people who had no access to any judicial procedures at all and perhaps were being held without charges.
Now, the clause doesn't say that habeas can't ever be suspended.
It only suggests that its availability can be suspended in extraordinary circumstances, which would be like we are being invaded or there's a rebellion or there's some public safety emergency.
But again, where is the clause?
The clause is in Article 1, meaning that Congress is supposed to be in charge of suspending habeas.
It's only ever been suspended four times in the past, including early on in the Civil War, but each time there was congressional approval.
Got it.
I feel like I kind of know the answer to this since it sits in Article 1, not in Article 2.
But is this what Trump and ICE are relying on to round up and deport people without trial?
The fact that this word invasion or public safety?
Yeah, I mean.
So you're getting to the strategy, and then the real question is whether that's constitutional.
So the Trump administration, of course, has been aggressively enforcing immigration laws, including taking people off of the streets, detaining them and then, in many cases, rapidly deporting them.
The administration has done this to a number of Venezuelan nationals by claiming they are relying on the Alien Enemies Act, which we've discussed in a previous episode.
But the Supreme Court has said that these Venezuelan nationals can have access to the courts to challenge the lawfulness of their detentions.
And, in fact, other non-citizens who have been detained in this way by the Trump administration, have tried to file habeas claims to challenge the lawfulness of their detention.
Now, you're right to say that the Trump administration thinks that it has an answer.
White House Deputy Chief of Staff, Stephen Miller, has suggested this year that Trump is considering suspending the availability of habeas corpus.
And the idea here would be that habeas could be suspended, or the availability of having access to a court saying please consider the lawfulness of my detention that that could be suspended because we are undergoing what the Trump administration calls an invasion.
But the location of the suspension clause provides an answer to Mr. Miller.
It's in Article 1 as part of a directive to Congress.
The President of the United States doesn't have the constitutional authority all by himself to suspend the availability of habeas corpus.
And that's really important because really the question is can the president simply detain people without charges or access to the courts on his own?
Say so.
And the availability of habeas corpus says no, unless we are living through some extraordinary times.
For example, the United States itself is threatened in some way, which I don't think we are at the moment.
Yeah.
But regardless of that, this is Congress's duty to determine if there is a case for rebellion or invasion, or the public safety may require it, not the president's.
That's right.
I mean, there is like a little bit of you know historical practice like Lincoln suspended it during the Civil War and Congress kind of approved of it after.
But they did approve of it.
So there is a sense in which the presumption is that Congress has to provide their consent.
Right.
And in fact the text is pretty clear that it's up to Congress.
It's for Congress, not the president.
Yeah.
Yeah.
OK.
That's a big one.
All right, so let's turn to another fun part of Section 9.
Section 9, if you'll remember, prohibits federal officers from accepting gifts or emoluments from foreign states unless Congress consents.
So you and I talked quite a bit during the first Trump administration about whether or not foreign entities using the Trump Hotel in Washington DC, whether that was considered an emolument.
There were lawsuits over this.
The lawsuits kind of fizzled out after Trump was out of office.
But that very same clause has another element.
And the whole clause says No title of nobility shall be granted by the United States and no person holding any office of profit or trust under them shall, without the consent of Congress, accept any title of any kind from any king, prince or foreign state.
So this means that the Constitution bans the federal government from granting hereditary titles to anyone and that federal officers can't accept a foreign title without Congress's consent.
No kings, right?
That's why the slogan is so intuitively appealing.
It's embedded in our constitutional DNA, right?
It's in the actual original document.
We want no kings.
We want no one with a hereditary title.
And it seems kind of quaint today, right?
Because who's threatening to give anybody a title of nobility?
But titles of nobility were a very big concern at the founding.
Alexander Hamilton wrote in one of the Federalist essays that so long as titles of nobility are excluded, there can never be serious danger that the government will be any other than that of the people.
Wow.
Can we talk about a fun fact?
Okay, so please, let's do some fun facts.
So it's about the missing 13th Amendment, not the one that was adopted during Reconstruction.
Not at all.
So in the years leading up to the War of 1812 there were widespread fears of secret foreign influence.
So the Federalists, who favored the British, were worried about the Republicans, whom they considered influenced by the French.
So in 1810, Republican Senator Philip Reed introduced a constitutional amendment which eventually received the necessary supermajority approval by Congress that same year.
Here's what it says.
If any citizen of the United States shall accept claim, receive or retain any title of nobility or honor, such person shall cease to be a citizen of the United States.
Whoa.
So that goes so much farther than the nobility clause in Article I.
It says no one period can accept a title of nobility.
Congress can't even remove the ban by consenting, and you lose your citizenship.
Now here's the thing Roman 12 states did in fact ratify this over the next four years, but then the movement kind of lost steam.
But then there was apparently some confusion at the time as to whether it became part of the Constitution.
At least one researcher has found that there are some early versions of the Constitution floating around that had this phantom nobility amendment printed in it for a few decades.
Now as recently as 2020, the National Archives acknowledged that it could still become part of the Constitution.
But because so many states have joined since 1814, we'd need 38 states for ratification.
So it doesn't count that it got the necessary three-fourths, like back when it had enough three-fourths.
Interestingly enough, there's like this entire conspiracy theory online where actually people claim that it was secretly, you know, de facto part of the Constitution because we got the right number at the time.
And so it's in operation and we need to be careful about it.
Wow.
That's super interesting.
So weird.
More on Article 1 when we come back.
One of the things I also sort of notice in the Section 9 of what Congress can't do is there's lots of sort of vague, circumspect language about basically not outlawing slavery for the next 30 years is a huge part of what's in there.
Could you talk a little bit about that?
Sure.
I mean I think you know we've talked before a bit about like the lingering part of the shadow of slavery in this document which is alive and regulates our national government today.
But these, of course, are very specific compromises in the Constitution.
Responding to concerns that how do you get all of the states to join on to this brand new experimental Constitution right?
That was meant to respond to the failures of the Articles of Confederation.
So it's kind of like this ugly stain that remains part of the original document just floating out there, of course overridden by later parts of the Constitution, the Reconstruction Amendments.
But it's kind of these, it's like a shadow of course, something that we can't ignore and certainly is part of the history.
So that's the strange thing about the Constitution.
It's built.
It's like a ramshackle building, built with things that absolutely don't make any sense anymore and things that vitally regulate everything we do today.
You know, we can't jettison those parts.
We'd have to sort of create a new constitution from scratch.
But I think you know, as our earlier guest Nicole Hannah-Jones had mentioned, that you can't ignore it either.
That's part of our history.
It's just sort of interesting in its language, just sort of like to go like OK, so there's a lot of impulse to ban slavery outright, but they never want to invoke the word slavery.
But there's all these like provisions like, well, they can't sort of tax it out of existence.
They can't stop sort of certain types of international.
If you, the state of South Carolina, sign on to this, we won't ban slavery for the next 30 years.
For you to figure out how you're going to function as an economy without slavery.
It's just sort of – it's fascinating.
You know, like it's all built in there.
And the fact that you know that it's still in there there's like a general thing that's kind of interesting, that's not –.
You know, not necessarily intuitive on the face of it is that we keep everything in the Constitution.
You could rewrite it like and just like jettison all these parts.
But we chose to keep everything permanent and everything that's changed.
We add amendments to.
But there's nothing you know, like we're at the very beginning of exploring what a written Constitution is.
And they could have.
They could have decided that no, we actually like revise and replace these parts.
But we chose not to.
We could.
But I suppose there's also a different argument to say there's some merit in keeping even that ugly history in there to remind us that.
Oh, I totally agree.
To remind us that this was part of the founding and we don't want to whitewash what happened then or what the assumptions or ideas were, even of the founding fathers.
It's important to just keep it there so that we can learn something about history.
It is a historical document as well as a governing document.
Yeah, I totally agree.
I just think that's sort of it's interesting to think through that they were doing all of this for the first time.
And you could totally say, like, you know what, we just want to revise the Constitution.
I mean, like Jefferson, you know, thought that you should revise the Constitution every 19 years and basically rewrite it, just like form another constitutional convention and say, like what are the rules that should govern us now?
And instead we keep this legacy of everything that was written before and And that was also a design choice.
I just want people to sort of like think about that, that they didn't have to do it this way.
And I think it's interesting that they decided to just like build and build and build and keep everything that came before it.
And so when you read these sections, you're like, what are they talking about?
Like, you really have to like look through and just like, oh, they're talking about slavery here.
They're talking about keeping slavery legal for 30 years, no matter what Congress wants to do or the will of Congress wants to do, just so we can get Southern states on board.
And I think it's interesting.
Yeah, and in a way it's kind of funny because the Constitution itself, I mean the project of the convention, was to revise the Articles of Confederation.
So they actually didn't even do what they were supposed to do, right?
So they were like, forget that project.
We'll just create a new one from scratch.
Yeah, that in and of itself, I mean, that was kind of more of the precedent, was just a restart.
But we said that this was now the starting point and now all changes would happen.
You know like— as an additive to this thing that was created.
And I think that's just kind of fascinating.
It just didn't have to be that way.
In fact, clearly is evidenced by the transition from the Articles of Confederation to the U.S.
Constitution.
They didn't, you know, they didn't think it needed to happen that way at that moment.
So, OK, so those are some things that Congress can't do.
OK, so let's turn to Section 10.
OK.
All right.
So Section 10 is quite different.
It contains a long list of things that the states cannot do.
So why are there limitations on what states can do in Article 1, since this is supposed to outline what Congress can do?
Okay well, part of the reason is that some of the prohibitions on the states can be lifted if Congress consents.
So Clause 2 says that states are not allowed to impose any imposts or duties on exports or imports unless Congress agrees.
So this is a provision that limits the ability of the states to interfere with interstate commerce.
But if for whatever crazy reason Congress wants to let them do that, they can do that, right?
Clause 3 of Section 10 says that the states can't keep troops or ships of war in a time of peace, or even enter into compacts with other states unless again, Congress consents.
So the first part of that is a reminder that war and diplomacy are supposed to be the responsibility of the federal government, not the states.
Yeah.
But states can enter into compacts if Congress lets them.
And over time there have been many interstate compacts where states agree to get together to solve regional problems.
And these interstate agreements span everything from regulating water fisheries, oil and gas, urban planning, even sewage disposal.
And so the basic idea is that Congress should be required to approve of an interstate compact if it somehow challenges or affects the supremacy of the federal government.
Right.
Now.
I bring this up because I think, because of the times we're living in now, I wouldn't be surprised if we start to see more and more interstate compacts, particularly on the coasts of states that are getting together to try and solve problems because they think the federal government isn't sharing their values or because the institutions of the federal government have degraded or collapsed altogether.
And so would each of these compacts then have to be like, adjudicated by the Supreme Court, or what would happen here?
Or approved by Congress?
So, yeah.
So it depends.
So, as I said, the Supreme Court doesn't consider every kind of agreement among a group of states to be a compact for purposes of the compact clause.
So they have to have certain features.
And also if it's of a type that might challenge law, what the federal government has primary responsibility over, then it might be a problematic compact.
Unless Congress says yes, you can go ahead and do that.
So some of these compacts like regulating, let's say like nuclear waste, That in the past has been something that Congress has approved of.
But there are lots of other things where states have gone together and you know they just do it because they don't rise to the level of super importance, so that you know Congress definitely has to come in and act.
But I just mean in terms of values and the kind of conflicts that we're seeing now.
It wouldn't surprise me again if we see more and more of these states getting together and saying we want to do something different.
Yeah.
And there's people lobbying for this, like this sort of soft, soft secession style of like forming our own values amongst the sort of the Pacific states and stuff like this.
And you can imagine ones that would immediately get knocked down.
Like if a, if a collection of states decided to have their own gun laws, that would probably get like immediately.
Yeah, probably.
Yeah.
But other ones that seem more possible.
Well, I mean, there are things that are happening right now.
It's not clear what the details are, but you've heard of these compacts or agreements by the Western states and the Northeastern states about health alliances, right.
Yeah.
Like trying to recommend.
Well, this is what we think that our citizens should get in terms of vaccine schedules, even though our Secretary of Health and Human Services says vaccines are bad and you don't need them.
So that might be something that in theory is contemplated by the clause, but depending on how they do the arrangement and whether it truly is a compact and whether it's the type of compact that would be regulated by the compact clause, we'll have to see.
Okay.
And the first clause of Section 10 involves matters which cannot be waived by Congress.
It flat out tells states things that they just cannot do.
The states are not allowed to coin money.
That's left for the federal government.
And the Constitution bans the states from passing bills of attainder or ex post facto laws in the same way that Congress is not allowed to do.
So these are laws that single out a person or entity for punishment, or laws that retroactively make conduct illegal.
And interestingly enough, the same section says that no state shall enter into any confederation.
And that is the reason why the Confederacy itself is inconsistent with the Constitution.
Interesting.
Okay.
How about an Article I power that may not seem terribly relevant today, but still pretty cool to know about?
Okay.
Let's hear it.
Okay.
So if you look at Congress's war power in Section 8, it says Congress shall have the power to declare war and grant letters of mark and reprisal.
Okay.
What does that mean?
Okay.
A letter of mark, and reprisal is a document, an official authorization by the government that allows a private citizen to seize an enemy ship, including their cargo and crew.
So letters of mark and reprisal have been around since the Middle Ages.
And if you were granted such a letter, you were known as a privateer.
A privateer, because you were using your privately owned ship to engage with the enemy, so you could reap a financial reward.
That's like master and commander kind of stuff.
Yes.
So like you're not a pirate.
You're doing something legally because the government's allowing you to do it.
So letters of mark and reprisal are extremely useful if you don't have a large naval fleet.
So that was the case during the Revolutionary War.
So Massachusetts, for instance, began issuing letters of mark and reprisal in 1775.
And the Second Continental Congress distributed these letters to the colonies so that privateers could capture British ships.
We just didn't have a large naval presence.
And the Civil War was the last significant use of these letters.
The Confederacy used privateers.
Lincoln had the authority to use privateers, but he in fact didn't.
So I did say letters of marque and reprisal weren't all that relevant to our daily lives.
But I should mention there have been some attempts to revive the idea.
Oh, yeah.
This doesn't sound good.
Right, does it?
So, in February of this year 2025, Senator Mike Lee of Utah suggested that well, maybe Congress should allow privateers to take on illegal drug cartels at the Mexican border.
Wow.
And he specifically mentioned Congress's ability to issue letters of mark and reprisal in Article 1, Section 8.
Wow.
And so this was sort of de facto deputized private citizens to go after drug cartels.
And in payment, they would actually take whatever they took down or stole.
Well, that's the part that's nonsensical.
What do you think to take?
Do you take the drugs?
Yeah, that doesn't make any sense at all.
You would sell the drugs?
Yeah.
He didn't think that part out.
But yes, in theory, that's how it would work.
Oh, my gosh.
That is not a good world to live in.
Right.
But it's still there and it's an authority of Congress.
Okay.
Okay.
All right.
So lastly, let's talk about a power that I think a lot of folks might think is an Article I, but isn't there at all.
If they think about Article 1 at all, yeah.
Right, if they think about it.
But yeah, go ahead.
So, Roman, you know that Trump's second term has focused on his mass deportation agenda.
Yeah.
And the rules about who is considered unlawfully within the United States, who may stay and for what reasons.
These are all determined by Congress.
But if you think about it, why can Congress do this?
Hmm.
So it's a serious question because, although Article I has a commerce power, a taxing and spending power, and even has a clause that provides the authority to establish post offices, there is no immigration clause.
Yeah, I guess I hadn't really thought about that, but yeah.
The Constitution doesn't mention the word immigration at all.
The Constitution doesn't give any branch of the federal government the ability to control how non-citizens can come to the United States, how they can stay or whether they can live here.
Now, Article 1, Section 8 does give Congress the power to regulate naturalization.
That's the process of how a non-citizen can become a citizen.
But that's not nearly enough of a basis to allow Congress to regulate everything there is regarding immigration.
Okay.
So what is that built on then?
Well, for a long time now, the Supreme Court has said the ability to regulate immigration just comes from the United States being a country, from being a sovereign nation.
And since every sovereign nation can regulate its borders, that means that the United States has the immigration authority.
So, according to the Supreme Court, that inherent power not mentioned in the Constitution at all is plenary or full, and it belongs to Congress.
And that also means that the President of the United States has broad authority to enforce these laws.
So that's a kind of surprising observation, I think, for a lot of people.
This enormous amount of national power, the one that is being used by President Trump for his mass deportation agenda, isn't mentioned in the Constitution at all.
Wow.
That's definitely something to think about.
I mean, oh my God.
But that could also break both ways, right?
Like it could give all kinds of power that are not written down, or you could interpret it as you have no power to do anything.
Yeah, I mean, historical practice suggests that we've always assumed that there is an immigration power.
I mean, even the founders thought there was an immigration power.
What's kind of surprising is that we didn't bother to mention it in the document.
Yeah.
And so it becomes a question as to how can you even start to talk about the outer boundaries of that power if we don't even have any words to start with.
And mostly they've just sort of treated us.
This is just so standard that we we build it on sort of a common sense understanding of what a country is.
And that's it.
Yeah, I mean for sure.
The Supreme Court has at times referred to some parts of the Constitution.
Like you know, we have the ability to regulate foreign commerce and the president has a foreign affairs power.
And again, there's this congressional ability to regulate naturalization.
So I guess, if you put them together and sprinkle something on it, that would turn into the immigration power.
But yeah, mainly the idea is because the United States is a sovereign nation like any other.
It has the, it has to have the ability to regulate immigration.
But again, that's a you know, in a rule of law context it would be better if we had something more sturdy to rest that on.
Yeah.
Yeah.
I mean, would it be worth to you to like put something in some kind of an amendment that made sense here?
Or is it like at this point you couldn't really codify it into language?
Well, I mean, I think it would be useful in an imaginary world where we could easily do this, to put it into language that it is Congress that has the immigration authority.
And that may be putting some limits on how the executive branch can enforce the immigration power or specifying what the executive branch is allowed to do.
Because at the moment we seem to have a Congress that is totally acquiescing to the president's assertions about immigration authority and saying that in fact, I can do whatever I want, because Article 2 gives me complete authority to do whatever.
And again it's hard to come back with saying but the text says this, because the text doesn't say anything.
Because there is no defense.
Right.
Because there's nothing there.
Right.
There's nothing there.
Wow.
That's so fascinating.
Okay.
Well, this is what is coming to me in this moment where we're talking, and you know, like even the sentence that we mentioned earlier this, like the privilege of the writ of habeas corpus, shall not be suspended unless, in cases of rebellion and invasion, the public safety may require it.
Like there's lots of things in here.
That allow for evil.
Doing like the Constitution is not a is not a backstop against evil.
Doing like like it allows for quite a bit of mischief and making people's lives miserable, that you can't really depend on the Constitution for that.
You have to really depend on, you know, the ethics and goodness of humans, really.
I think that's right.
And in fact, if you look at the Constitution, a lot of it seems to explicitly contemplate look, if there's an emergency, we can suspend some of these rules.
But who gets to declare the emergency and what exactly is an emergency?
That's a matter of political accountability.
It's not something that the Constitution sets limits on.
Yeah.
Yeah.
This idea of emergency, these sort of pull the cord in case of emergency stuff, that's kind of everywhere in the Constitution.
They were nervous about making something that tied Congress's hands like a little too much.
Yeah, and of course the contemplated emergencies were being invaded, which was like a serious threat and concern at the time of the founding.
I think they wouldn't have contemplated a president that would have used immigration as an emergency to say well, that's why we can detain people without charge or access to the courts.
That's the novel version.
And you're right, the scarier version.
Yeah.
Yeah.
They would not have contemplated that.
They were really thinking about British troops landing on a shore and like not having time to have trials and just like kicking them out if it's all fit.
Yeah.
Or French influence, French influencers granting titles of nobility right and left.
Coming up, our conversation with senior Senator Elizabeth Warren.
And now our guest for this episode, Senator Elizabeth Warren.
Senator Warren has represented Massachusetts since 2013 and she's spent a lot of time trying to set up protections for people against big banks and other corporations.
The Senate has been the most powerful legislative body since the Constitution was ratified.
Just 100 people wield great influence over what can and can't happen in this country.
Through most of its history, the U.S.
Senate has worked to slow down and temper the change demanded by the lower house and the president, both for good and for ill.
One of the hallmarks of the Senate is that they vigorously defend their role as the wise, elder decision makers of the country.
But lately Republican senators have seemed happy to give over much of their power to the executive branch under President Trump.
And that is troubling to people like Democratic Senator Elizabeth Warren.
Just a note, we spoke with the senator in mid-September before the shutdown started.
So when we talk about it, we discuss the shutdown as an impending possibility.
Senator Warren, thanks so much for being on the show.
Oh, thank you for having me.
I'm excited to do this.
So happy to have you.
Much of your job description is contained in Article 1, Sections 8 and 9, which sets out the powers of Congress, what Congress can and can't do.
Which of these powers do you wish people had a better understanding of?
Well, it's that Congress makes the laws.
And that's our job.
I go around all day doing Article I stuff, which is working on the laws.
And when I say that it's you not only pass the laws themselves, you fund them and make sure there's money to get out and do those things and raise the revenues in order to fund that work.
So we're, you know, we're the branch that's supposed to do the kind of nuts and bolts not very sexy, but wow, is it important.
And the reason I say that is not just that you have to make the laws.
The point is, what's happening in Article I is not what's happening with the president of the United States.
It's the separation here, and I know people talk all the time about separation of powers and so on, but this is really a big deal because this is about.
This is like if you had to start with your reading of the Constitution king, no king.
It's Article I that starts us with no king, because the President of the United States does not get the magic wand which he can then wave over the rest of the country and say okay, here's the deal.
Highways over here, millions of dollars over there to build a military base.
So for me, that's kind of the heart of the job.
It's not only what we do to make laws, it's that we underscore three times over.
Here in Congress are the ones who are supposed to make the laws.
President gets to check us by vetoing him if he doesn't like it.
He can veto the budget.
But even that, we can override him if our numbers are big enough to do that.
So to me, that's the heart of the game.
So this power of the purse is sort of like the primary power of Congress.
How is that being tested right now in this administration?
Oh, you heard me inhale from Well, and you heard me inhale because frankly, it's never been tested like this before.
I mean, you know there's been a little nibbling around the edge when the president says well, I don't want to do that.
And, you know, there's been a little back and forth, but whoa, way out at the margins and fringes.
And instead, what's happening right now is, let me just give a very specific example.
Please.
Congress, Congress triple underline said here's the money we're going to put into foreign aid and we're going to give it to USAID.
And we even got really specific about And we said you know, here's money we want to put into vaccinating little children in other countries who face terrible disease.
Here's money we want to put in to food support in places where there's starvation.
And we have a lot of – just a little background here.
Boy.
They need some help over here, because starvation is what's causing people to turn to the terrorists, because the terrorists have gotten financing and can help feed people.
So please put more money in so that we can get them over with the good guys.
Why it is that we fund schools. in places like Afghanistan.
You know, so the pieces often fit together and they're often, between Democrats and Republicans, highly contested.
Sounds a little too cranky, but it's the basic idea.
It's, well, how much do you want for that?
Well, I want more for that.
Well okay, if I give you more for that, will you give me something over here or stop doing this other thing?
And I say Republicans and Democrats, I really want to be fair here.
Not all Democrats agree with each other.
Not all Republicans agree with each other.
So this is a real sausage-making moment.
And so all of that is by way of saying.
Last year Congress said here's how much money we want to make sure goes into USAID aid around the world.
And relative to our budget is really small.
Mm-hmm.
But really important.
And a lot of good people made the case for why that money needed to go to fight off Ebola.
So it doesn't come to the United States.
You get the idea.
Yeah.
Donald Trump comes in with Elon Musk and the golden chainsaw and just says nope, not going to spend it, we're gonna padlock this agency literally.
Take down the sign in front, stop.
And they put something called a stop work order which doesn't just say spend the money you've already got, roll this stuff on out.
It literally said, don't touch this stuff.
And food that we had spent to starving people.
Some of it ends up rotting on docks where it got unloaded.
Medications that needed to be distributed were just left.
I heard from one of my Republican colleagues that a bunch of arms guns weapons, ammunition that had been seized from potential terrorists and groups overseas We just walked away from guarding it and couldn't give the money to the people who were guarding it.
And guess what?
The guns all get picked up and redistributed, I'm going to assume, to bad guys.
So the question then becomes, whoa, who put a stop to that?
Congress didn't put a stop to it.
We didn't say, hey, that's okay.
Donald Trump and Elon Musk, as his right-hand man on that, just stopped it.
And if he can do that, then that whole notion that Congress decides for better and for worse, Congress decides how to spend money and what programs will get funded, suddenly is gone.
And we have a president who looks a whole lot more like a king than actually a president, who has genuine and meaningful checks on his power.
Now Senator, it sounds like you know some people may be confused because there are claims that well, maybe there are legal ways that any president can try and take some funds, defer them or hold on to them.
And yet there are also, as you describe, these big claims of power and taking and interfering with what Congress is doing.
Could you explain perhaps what's going on here with President Trump?
Sure.
So think of it this way.
Congress writes this set of rules and it basically says Congress is going to get some power.
The president's going to get some power and the president does have some power.
He doesn't have that power.
And the courts are going to get some power.
They're going to get to review what the president does and make sure the president stays within the law.
So it's all written on a presumption that nobody gives up power.
So the whole Constitution functions on this idea that Congress will jealously guard its power, the courts will jealously guard their power and the president will jealously guard his power.
What has shifted now is that it's both halves.
We have a president, Donald Trump, who's saying, gimme, gimme, gimme.
I want to decide where money gets spent.
I want to decide that this agency doesn't get any money and that agency only gets to do this thing and not this other thing.
That Donald Trump gets to decide it all.
And that's, for me, the horror of this moment.
It's that you've got a wannabe king with a spineless Congress.
And that is not something.
Go read the Federalist Papers that any of the folks who are drafting the Constitution ever seem to contemplate as a possibility.
Right now, think of it this way, We have a Senate that is 53-47, 53 Republicans.
I wish.
I'm a Democrat.
53 Republicans, 47 Democrats.
If four Republicans in the United States Senate would say, okay—
We get that you don't like some of the things that Congress allocated money for.
But listen bud, that was the deal.
We engaged in a lot of negotiations.
We got things that were our priorities in return for the other side getting some things that were their priorities.
You don't get to just sit here and wave the magic wand and suddenly defund things you don't like or move money.
I'll give you an example that came up this morning in a hearing.
Move money from repairing army barracks and Marines barracks that were in terrible disrepair.
You don't get to seize that money and suddenly use it down at the border to start building your wall or whatever it is you want to do with the board.
You just don't get to do that under the rules of the Constitution who has what powers.
If four senators would say to the President of the United States cut this out, we're not going to do this with you and we will not confirm a single secretary or nominee that you send over.
We will not give you any more money to spend unless you knock it off, then this moment of attack on the Constitution would shrink way down.
It wouldn't be gone entirely, because you'd still have a president who'd be looking for every opportunity to say gimme gimme, gimme.
But he would now be a toddler confined to a pretty small room where he couldn't do nearly so much damage.
And so that's the thing about separation of powers.
It's based on the premise that each of the three groups will defend its own power.
And right now, the spineless Republicans, they are creating a part of this constitutional crisis.
Senator, you've just described a way that the Senate could provide a check on what the president is doing.
And of course you know, President Trump has been trying to claim more and more presidential power for himself.
And we've also seen that the Supreme Court has been pretty willing to grant him that power.
So if Congress could, or if the Senate could but isn't doing anything right now about that, could Congress realistically do something to check the Supreme Court itself?
Well, this is a hard one.
So let's let's let's do this one kind of in steps.
You know, part of the answer is it depends on what the Supreme Court says.
You know, now we're going to you and I, Elizabeth, can just be dorky law professors.
Give me the exact language.
I feel like I'm back.
You know, put your finger on the exact word in the statute that you're using, to the extent that the Supreme Court says yo, Congress didn't make clear what's happening here.
Congress didn't specifically say that the FTC can ban non-compete clauses.
So I guess Trump and the Trump administration can go ahead and knock all that out, right?
If Congress says, okay, courts, you think we didn't make it clear?
Let me hit it again and say very clearly, we always have the power to pass more laws.
And if you don't think we got the FTC authorization right at some point, we can step up and say more and say it again, say it more clearly, say it more aggressively.
And to the extent the Supreme Court is claiming that Congress has been ambiguous in something it's written, then yes, we have the power to fix that.
It may not always be realistic in a deeply divided Congress, but at least theoretically and structurally it's there.
The harder one is the Supreme Court's interpretation of the Constitution because, let's be blunt, that is.
The job of the Supreme Court is to see if the president and the administration are actually following the Constitution and the law.
And here's the place.
I just gotta say I am very worried that the wheels started coming off a few years back over.
My particular one I would pick is money in the political system and the Supreme Court saying why sure, billionaires can pump billions of dollars into elections and there's really not much that Congress can do.
I think they are wrong on the Constitution there, but it's the upcoming threat And we don't know for certain where the Supreme Court will go, but there are certainly—I just think of them as the pro-King advocates. who want to say, they made up this new word, the unitary executive, that would give a theoretical president who wants to wear a crown and have a magic wand, would give him that crown and magic wand by saying, all of the power everywhere. rests with the president, and Congress is the subservient branch, and the courts are subservient.
Everyone must bow to the would-be king.
And for me, I cannot think of an idea that is more the opposite of what the Constitution says and what the history of the Constitution was all about.
And I say that with a certain passion as the senator from Massachusetts, where in 1773, the good folks of Boston said, We don't want a king telling us we have to pay this tax on tea.
And, all right, come on, just among friends?
It wasn't a huge tax, you know.
It wasn't like the king was actually showing up at your house and you know, grabbing your teapot and your pillowcases, you know.
But we said, as a matter of principle—
You want to tax us?
You got to let us have a say in how those laws are written.
Does this sound reminiscent?
You got to let us have—we didn't call it this at the point—an Article I, a place where the people are represented and where we get to say—
This is how we want to spend money.
These are the laws we want to see carried through.
And, you know, we felt so strongly about that that we dumped that British tea in the harbor.
And a lot of people don't remember.
We suffered consequences from that.
They blockaded the harbor and there was a lot of privation. that came from that.
A lot of people.
We also, at the time, evidently, the folks at Massachusetts learned to drink coffee.
So, you know, a lot of things had happened from these.
But this is kind of the precursor to the American Revolution.
It's all fought around this central question is there one king from whom all things flow, or is there a legislature that's our Article 1 that says nope?
You guys over here representing the eastern states and the western states, representing Whigson, representing all kinds of different groups and different interests, representing rich people and poor people and farmers and urban dwellers.
You will decide what the laws are, how much money is spent and then ultimately, it's a little later on obviously, when we get the amendment in, and how to raise more money to be able to support all of that.
And right now, Donald Trump wants to take that away.
And the idea here, he and he alone— will decide where money gets spent.
And if that is the case, we just don't have that same Constitution and that same separation of powers?
That sense the Constitution was adopted in 1787 has been our guiding principle.
So you know there are procedural things and there are sort of unprocedural things that are happening here.
I mean, in one instance, the sort of Impoundment Control Act leading to a rescission and a lot of these, you know this rescinding of money, the Rescissions Act of 2025.
I mean, that was the process in a way for it to work.
Is.
Is that the process failing?
Or is that the sort of the complicity of, you know, Republicans inside of Congress doing Trump's bidding?
It's the complicity of Republicans who evidently are more afraid of Trump than they are of the people who elected them to the Senate and to the House.
And look, we're about to face this.
I'm not going to reverse it on you.
Well, the place we're about to face this is there's a budget that has to be passed.
Funding runs out for the government.
So this is kind of the other half of how this works.
So come September 30th, just a couple of weeks from now, The government runs out of money and Congress is the only one who can authorize more money going forward.
That's, again, right there in Article 1.
So the Republicans, who have been entirely spineless on holding Donald Trump accountable to spend the money that they had allocated, are now in the business of trying to negotiate with Democrats for a budget, And we're all in the shadow of whoa.
Let me understand this.
We're negotiating for a budget.
And yet if we get into this budget, more funding for health care is something we fight for.
More funding for child care is something I keep fighting for, right?
We fight for those things.
And you guys say, yeah, sure, we'll give it to you.
And then we all sign off on it.
We all vote for it.
And then Donald Trump signs it into law.
Yay.
And the next day said, God, I can't believe how dumb those people are.
We're not going to put that money into health care.
We're not going to put that money into child care.
So that is the context in which these negotiations are taking place right now.
And that's why, over the next couple of weeks, you may hear people talking about.
So what exactly are the parties negotiating for?
What are the things they're fighting over?
And for a big one.
For Democrats, it's going to be get rid of these terrible health care cuts that the Trump administration and the Republicans have forced through.
We want a lower cost for American families.
We want to get some things into the budget for that.
And we want some kind of reassurance, other than yeah yeah, that Donald Trump is not going to pull this same thing over and over and just pick the things we like and negotiated for and defund those.
Senator Warren, thank you so much for your time and talk to us about the Article 1 of the Constitution.
I really appreciate it.
We're so happy to have you.
Thank you so much for having me.
What a great conversation.
Let's do it again if you have other articles.
Oh, please.
Oh, absolutely.
Welcome back anytime.
All right.
Take care.
Join us next month.
We're tackling Article 2, which establishes the executive branch of the government.
That will be interesting and relevant.
Don't miss it.
The 99% Invisible breakdown of the Constitution is produced by Isabel Angel, edited by Committee.
Music by Swan Real, mixed by Martin Gonzalez.
99% Invisible's executive producer is Kathy Tu.
Our senior editor is Delaney Hall.
The art for this series was created by Aaron Nestor.
We are part of the SiriusXM podcast family, now headquartered six blocks north in the Pandora building in beautiful Uptown Oakland, California.
You can find the show on all the usual social media sites as well as our own Discord server.
We have lots of fun discussion about constitutional law, about architecture, about movies, about music, all kinds of good stuff.
You can find a link to the Discord server as well as every past episode of 99PI at 99pi.org.
