A Merry Christmas and Happy Chanukah to all my readers. May 2009 find America recovering from a difficult past year, and may our newly elected officials act responsibly, in their duties to the American electorate, rather than irresponsibly, in a self indulgent manner, as we have come to expect from the majority of our politicians.

An interesting issue was raised recently by our Vice President Elect Joe Biden, during a televised interview. According to Mr. Biden, President Bush overstepped his Constitutional bounds, and as a result, brought America to where it finds itself today, through too much executive power. Mr. Biden, who allegedly teaches and thus knows his Constitutional law, should be speaking from the standpoint of an expert. As I write this, I am presuming that Mr. Biden speaks for President Elect Obama, as to what we can expect from our next President. Sadly, it would appear the Mr. Biden’s Constitutional Law students have been led down the path of one who would betray the true meaning of that great document.

The issue thus raised is whether Mr. Obama is going to be an Article I or an Article II President. By that I mean, will Mr. Obama sit back and allow Congress to run the nation, using, as its authority, the powers allocated to it by the Constitution, in Article I, or will Mr. Obama use the power, described in Article II, along with the inherent powers of the office, to become the proactive President as many of his predecessors were? If he truly plans to bring about “change,” he will never do it waiting for Congress to act. Congress is too interested in all that it can do or not do to remain in office.

The powers of Congress are well enumerated in Article I of the Constitution and that document was based upon the writings of learned men of the times as well as the politics of the day. A reading of the Federalist papers envisions our Founders with a deep distrust of placing too much power in any one individual, as was the case with the British Monarch. Thus, through a study of these papers, we are well equipped to know and understand just what Congress is allowed to do. The question is whether Congress will act within its powers, as was intended, as an unbiased, non political body of legislators, or, as Hamilton was concerned, would politicize their actions into perhaps total inaction, or even worse, action to the detriment of the nation.

Mr. Biden is perhaps enamored with the thoughts of the celebrated Montesquieu. Biden, in his irrational anger at the current President’s actions in power over the last 8 years, cries out for a subdued executive, who power has been overwhelming. As Montesquieu wrote, “When the legislative and executive powers are united in the same person or body, there can be no liberty, because apprehensions may arise lest the same monarch or senate should enact tyrannical laws to execute them in a tyrannical manner.” Montesquieu also warned against a proactive judicial system, which usurped legislative power from that of the legislature. However, despite these warnings of a “strict separation of powers,” neither our Constitution nor those of the several states absolutely separates the power among the three departments of government, and for very good reason.

Madison, in the Federalist No. 48, recognizes just how the Constitution both limits and allows expansion of the executive power. “The legislative department derives a superiority in our governments from their circumstances. Its constitutional powers being at once more extensive, and less susceptible of precise limits, it can, with the greater facility, mask. under complicated and indirect measures, the encroachments which it makes on the coordinate departments…. On the other side, the executive power being restrained within a narrower compass and being more simple in its nature, and the judiciary being described by landmarks still less uncertain, projects of usurpation by either of these departments would immediately betray and defeat themselves.

In other words, we expect a President to act presidential and we expect our judiciary to sit in judgment of the acts of the other two branches, without itself legislating from the bench. We expect the latter to follow “Marbury v. Madison” and remain in a position to “say what the law is.” Actions beyond those descriptions are too easily identified by the people, whereas, Congress, in its manipulative and slight of hand ways, can easily mask corruption through legislation, which the average citizen rarely learns about until too late.

In general, our Constitution distributes national power among the legislative, executive and judicial branches of the federal government, this distribution described as a “separation of power” or a means of “checks and balances.” The principal of checks and balances suggests “overlapping functions,” in which each branch is able to intrude on or, given the partisanship demonstrated by our last Congress, interfere with the machinations or ineptitude of the other, if the other’s efforts appear either “too little” or so biased, as to harm the national interest.

Thus, the separation of powers is partial rather than complete, creating measures by which one branch may monitor and check the others. Congress may legislate, but the President may veto. The President may nominate, but Congress has the power to withhold consent.

Foreign affairs however presents a somewhat blurred picture of these co – mingled powers. Congress is authorized to declare war but the President is made commander – in – chief of the armed forces. The power over foreign affairs is thus obscured and less easily delineated. In addition, the President, as commander – in – chief, has the power to act, when immediate action is required, while Congress debates the issue to death.

One thus asks why the writers of the Constitution could not have been more exacting in their delineations of powers. The reason is that they did not trust total power in the hands of their fellow men, both from the standpoint of efficiency or from the fear of tyranny. From an efficiency standpoint, a President may act with dispatch while Congress, bogged down with its petty biases, may never move forward with legislation in time to be effective, and then, if at all, generally with great waste.

The checks and balances also allows for our rule of law. He who legislates should not be given the power to execute. Lawmakers cannot enact oppressive laws knowing that they will be exempt from their operation, although this allegedly apparent rule is usurped everyday by our Congress, as they raise their own pay, set their own health care standards and use their powers of tax and spend to maintain their office for, in some cases, a lifetime.

In 1787, there was an even greater fear than there is today, of an intrusion, by Congress, into the sphere of human liberty and private property. The separation of powers was therefore intended to ensure “the protection of individual rights against all governmental encroachment, particularly by the legislature. This fear created a desire for “limited government,” a concept which has gone by the wayside today, especially with both Congress and the Executive branch held by the same party. Some might say that our founders preferred more of a status quo, through this check and balance system, than a government which, through political bias and corruption, can promulgate substantive “reform” which, in truth, is merely lobbyist driven politics, as usual, rather than bipartisan legislation.

Thus, Mr. Biden’s view of the executive branch, being totally described, in its power, by the description of Article II, is a narrow viewpoint, held least of all by those who wrote the document over which he alleges great understanding. Presidents Franklin Roosevelt, Harry Truman, Ronald Reagan, Richard Nixon and George W. Bush have all been presidents who used every power of the executive branch available to them, whether specifically defined in the Constitution or those inchoate inherent powers which great leaders use in times of national emergency. And though each may have acted without the approval of Congress, their actions proved Presidential, as expected by the public. On the other hand, we have had Article II presidents, such as Gerald Ford, Jimmy Carter, William Jefferson Clinton, whose inactions and whose subservient nature, allowed Congress to run the nation, usually to our detriment.

Joe Biden would prefer a President who sits idly by as Congress runs the nation, with all the corruption that a vested interest dollar can buy. That would make sense, given Biden’s long tenure in the Senate and his dislike of the executive branch, especially when held by the opposing party.

Nothing good comes from an Article II President, especially in turbulent times. If Vice President Elect Biden does have influence on the inexperienced and untried Barack Obama, we are in for at least four years of an inactive, plodding executive branch, and that is not in the best interests of our nation, nor is it what the Constitution had in mind. One can only hope that campaign promises were an indication of a strong executive. Unfortunately, I have my doubts.

JLK