Legislation enacted by Congress
Actions of the President of the United States
Explanation:
Legislation
The framers clearly intended that Congress—through the legislative process—add meat to the skeletal bones of the Constitution as required by the many unforeseen future events they knew were to come.
While Article I, Section 8 of the Constitution grants Congress 27 specific powers under which it is authorized to pass laws, Congress has and will continue to exercise its “implied powers” granted to it by Article I, Section 8, Clause 18 of the Constitution to pass laws it considers “necessary and proper” to best serve the people.
Consider, for example, how Congress has fleshed out the entire lower federal court system from the skeletal framework created by the Constitution. In Article III, Section 1, the Constitution provides only for “one Supreme Court and … such inferior courts as the Congress may from time to time ordain or establish.” The “from time to time” began less than a year after ratification when Congress passed the Judiciary Act of 1789 establishing the structure and jurisdiction of the federal court system and creating the position of attorney general. All other federal courts, including courts of appeals and bankruptcy courts, have been created by subsequent acts of Congress.
Similarly, the only top-level government offices created by Article II of the Constitution are the offices of the President and Vice President of the United States. All of the rest of the many other departments, agencies, and offices of the now-massive executive branch of government have been created by acts of Congress, rather than by amending the Constitution.
Congress itself has expanded the Constitution in the ways it has used the “enumerated” powers granted to it in Article I, Section 8. For example, Article I, Section 8, Clause 3 grants Congress the power to regulate commerce between the states—“interstate commerce.” But what exactly is interstate commerce and what exactly does this clause give Congress the power to regulate? Over the years, Congress has passed hundreds of seemingly unrelated laws citing its power to regulate interstate commerce. For example, since 1927, Congress has virtually amended the Second Amendment by passing gun control laws based on its power to regulate interstate commerce.
Presidential Actions
Over the years, the actions of various presidents of the United States have essentially modified the Constitution. For example, while the Constitution specifically gives Congress the power to declare war, it also deems the president to be the “Commander in Chief” of all U.S. armed forces. Acting under that title, several presidents have sent American troops into combat without an official declaration of war enacted by Congress. While flexing the commander in chief title in this way is often controversial, presidents have used it to send U.S. troops into combat on hundreds of occasions. In such cases, Congress will sometimes pass declarations of war resolution as a show of support for the president’s action and the troops who have already been deployed to battle.
Similarly, while Article II, Section 2 of the Constitution gives presidents the power—with a supermajority approval of the Senate—to negotiate and execute treaties with other countries, the treaty-making process is lengthy and the consent of the Senate always in doubt. As a result, presidents often unilaterally negotiate “executive agreements” with foreign governments accomplishing many of the same things accomplished by treaties. Under international law, executive agreements are just as legally binding on all of the nations involved.
