Joe Biden, U.S. Senator for Delaware

September 17, 2008

On July 4, 1776, representatives from the 13 United States of America unanimously declared independence from the tyranny of the king of Great Britain. They fought with their compatriots until, in 1783, the British signed the Treaty of Paris and recognized the fledgling United States' right to self-governance.

In 1787, our Founding Fathers met in Philadelphia to enshrine their opposition to despotism and their commitment to democratic self-government in a document that would reflect the nation's core principles.

The Founders were no strangers to threats to their new homeland. The Spanish occupied the Western two-thirds of the continent, and the vanquished British occupied Canada to the north. National security was foremost in the Founders' minds when they set forth to devise a system of government.

George Washington presided over the Constitutional Convention. He was our first commander in chief and was to become its first president. It is hard to imagine a figure with a more sophisticated understanding of how to secure not just the territorial borders of the United States, but the principles and values that defined the nation.

The Founders reserved power to the states and recognized inviolable rights and liberties of citizens. To protect against the consolidation and abuse of power within the federal government, they divided power among executive, legislative and judicial branches. Each branch also was subject to checks and balances by the others, especially the executive, which evoked unwelcome memories of British monarchy.

And they required the president to stand for election every four years, thus placing in the hands of the people a powerful check against abuse -- the ability to vote the president out of office.

In Article II of the Constitution, the Founders vested in the president the responsibility to faithfully execute the laws, along with the express power to command the armed forces, to make treaties, and to appoint ambassadors, Supreme Court justices and officers of the executive branch. None of these powers granted to the president were absolute, however.

The Founders were emphatic that our government was to be one of shared powers. James Madison emphasized this in Federalist No. 47, where he wrote the three branches should "by no means" be "totally separate and distinct from each other."

One cannot fully understand the president's powers, therefore, without also understanding how the powers granted in Article II interrelate with the legislative prerogatives in Article I, the judicial authority in Article III, the reservation of power to the states, and the recognition of individual rights and liberties.

First and foremost, the Congress enacts the laws, and the president must faithfully execute them. Congress may enact laws that create authority the president would not otherwise have, like the authority to require that drugs be tested for safety before they are marketed to consumers.

And Congress may enact laws that prohibit the president from acting, such as tapping an American citizen's telephone without a warrant.

The Supreme Court, which has in the words of Chief Justice John Marshall the "duty ... to say what the law is," may prevent executive overreaching by deciding cases regarding the breadth and scope of presidential power. Justice Robert Jackson's concurring opinion in Youngstown Sheet & Tube Co. v. Sawyer is widely recognized as the best articulation of Congress's ability to restrict presidential power by exercising its legislative authority.

Jackson explained that when Congress supports the president through legislation authorizing his actions, the president's power is at its peak. But when the president acts in contravention of the express will of Congress, his power is weakest. Where Congress has not expressed its will, Jackson identified a "twilight zone" in which the president may act so long as he or she does not infringe upon state sovereignty or the recognized rights of the American people.

The president's powers to command the armed forces and protect the nation are not exempt from these limits. In the Constitution, the president is assigned the role of "commander in chief of the army and navy of the United States." The Constitution vests in Congress, however, the power to "provide for the common defense and general welfare of the United States;" "to declare war, grant letters of marque and reprisal and to make rules concerning captures on land and water;" to raise, support and maintain the armed forces; to make rules governing those forces; to suppress insurrections and repel invasions; and to organize, arm and discipline militias employed in the service of the United States.

As originally drafted, the Constitution would have given Congress the power to "make war." At the Constitutional Convention, James Madison and Elbridge Gerry argued that Congress should rather have the power to "declare war" so that, in an era in which convening Congress required weeks of travel by many members, the president retained the power "to repel sudden attacks."

The Founders vested the power to initiate war in Congress to deny to the president the unfettered power to start wars that the British king had enjoyed. Even Alexander Hamilton, a staunch advocate of presidential power, emphasized the president's power as commander in chief would be "much inferior" to the British king, amounting to "nothing more than the supreme command and direction of the military and naval forces, as first general and admiral" while that of the British king "extends to the declaring of war and to the raising and regulating of fleets and armies -- all of which, by [the U.S.] Constitution, would appertain to the legislature."

The Constitution vests the Legislature with a broader stake in waging war than in other foreign policy prerogatives assigned primarily to the president. When the Constitution addresses important matters of foreign affairs, such as the power to make treaties and appoint ambassadors, it shares power between the president and just the Senate. When it comes to war powers, the Constitution shares power with both the Senate and the House of Representatives.

As the "people's house," the House was intended to be closely attuned to public support for the vast commitment of lives and resources incident to war.

Moreover, involvement of both chambers in the decision to go to war encourages debate and careful deliberation in all except those cases in which the necessity of fighting was overwhelmingly obvious to the nation as a whole.

The system of shared powers and checks and balances enshrined in the Constitution has protected our country, and preserved our rights and liberties, for 219 years. When presidents have respected the power vested in Congress and sought its cooperation and consent before committing the lives of young Americans and the resources of taxpayers, they have acted not only with the legal authority of the Constitution but with the support of the public behind them.

Each time a president has exceeded the limits of his power, our Constitution's system of checks and balances has worked to restore equilibrium. The Supreme Court has repeatedly struck down the Bush administration's sweeping exercise of unilateral power in matters of national security.

While the high court has yet to rule on a number of abuses, among them the wiretapping of citizens without warrants and the torture and abuse of detainees, Americans will have the opportunity this November to exercise another safeguard against consolidation and abuse of executive power. That is the right to vote for a presidential candidate who respects the constitutional role of Congress and the courts, the rule of law, and the rights and liberties of Americans.