Enumerated Powers & The Necessary and Proper Clause

Eligibility Requirements for Serving in Congress

Among other things, Article I, Sections 2 and 3 lay out the qualification for serving in Congress. Members of the House of Representatives must be 25 years old, must have been a United States citizen for seven years. Senators must be 30 years old, must have been a United States citizen for nine years. Candidates for both offices must reside in the state from which they were elected at the time of election. 

Consequently, meeting the qualifications to be a House of Representative member does not make one qualified to be a senator, though time and choice may remove any disqualifications for representatives to run and serve as senators. Given that one qualification for President is being a natural born citizen, someone who meets the qualifications to be a member of Congress may never be qualified to be President.

House of RepresentativesSenate
Be a citizen for seven years.Be a citizen for nine years.
Be at least 25 years of age.Be at least 30 years of age.
Live in the state that they representLive in the state that they represent.

Compensation and Sessions of Congress

Members of Congress are paid for their service, though the 27th Amendment makes clear that pay raises for Congress cannot be made effective until a congressional election has been held after approval. Paying members of Congress for their service does not necessarily mean that they must be full-time legislators or full-time politicians. The Constitution only requires that Congress must meet at least once a year, and it does not require Congress to meet for any particular amount of time. 

Every two years, a “new” Congress is convened, in accordance with the election of new members of the House of Representatives and a new class of Senators. Each Congress then has two sessions, one each year until a new Congress is elected. In the early years of the republic, Congress convened its annual session on the first Monday in December and usually adjourned by May. This allowed ample time for travel, and many Congressmen maintained law practices, plantations, or trading companies while not in session to provide for them. 

Today, in accordance with the 20th Amendment, Congress meets every year beginning on January 3rd. They meet longer than they used to, usually only recessing for the month of August, and meeting for most of the rest of the year. Special sessions of Congress may be called in extraordinary circumstances in the event of something that demands Congress’s attention while they are not meeting. 

Privileges of Congressmen

The Constitution also stipulates what members of Congress can do while in office and what protections they enjoy when serving in their official capacity. While in office, members of Congress cannot simultaneously hold another office under the United States. In addition, members cannot be appointed to an office that was created or whose “emoluments” were increased during the member’s service. These limitations were primarily instituted to prevent the executive branch from bribing dissenting legislators with lucrative offices – a form of corruption that was rife under the British constitution. These constraints also serve to focus members of Congress on being legislators and eliminate overlapping interests among the three branches of government.

Members of Congress are exempt from some of the strictures of civil society when they are directly serving their official duties. For example, Congressmen have immunity in regards to what they say when speaking on the floor of either the House or the Senate—the speech and debate clause exempts members from potential legal ramifications. Of course, that does not mean members are exempt from criminal punishment for any actions they take related to official business. Similarly, members of Congress can only be arrested for very limited reasons if they are traveling to, attending, or traveling away from a session of Congress.

Congressional Elections and Leadership

The Constitution allows Congress broad power to control its proceedings. Based on Article I, Section 5, Congress can control elections for its members, how its officers are chosen, and how its business is conducted. 

The Constitution is silent on how congressional elections are to occur, leaving the details to legislation. Since the mid-1800s, members of the House of Representatives have been chosen through congressional districts. The requirement to elect members of the House of Representatives from districts puts House members closer to the people. A debate continues as to whether House members should mirror their constituents or consider themselves delegates who refine and filter the varied interests in their districts. This question is as old as the republic and might be answered differently by the Framers than by today’s politicians. Nonetheless, regulating congressional elections is clearly within Congress’ power.

Both houses of Congress choose their officers, except that the vice president of the United States serves as president of the Senate. The Constitution specifically mentions the Senate’s choice of a president pro tempore to serve when the vice president is unavailable to serve as President of the Senate. The Speaker of the House is the only officer of the House of Representatives specifically mentioned in the Constitution, though the House has the power to choose additional officers.

Congressional Housekeeping Rules

The Constitution allows Congress to choose the rules that internally govern its business. These rules can and often have been used to slow the legislative process, The most prominent of these rules is the filibuster in the Senate, which is frequently used to delay or defeat proposed legislation. In the House, the House Rules Committee determines the timing, procedures, and amendment rules that govern the law-making process. Rules that render the governance of Congress less democratic obviously render the governance of the country something other than a pure democracy. However, if allowing Congress to set their own housekeeping rules was meant, in part, to provide Congress with the latitude to govern the way it saw fit – slowing down the legislative process and forming broader consensus if necessary – then these rules may lead to less legislation. And a Congress that produces less voluminous legislation is not inconsistent with the Constitution’s design.

The Framers of the Constitution did not wish to micro-manage the future proceedings of Congress, but they did recognize that all deliberative bodies must proceed according to set rules that are known to all of its members. The delegates themselves devoted the first few days of the Constitutional Convention to electing their officers and deciding the rules that would govern the summer’s debates and voting procedures, and they would afford similar latitude to Congress.