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Faculty Tackle Thorny Issues on Constitution Day

by John Masson

The Law School hosted the University of Michigan's annual observation of Constitution Day September 20 by presenting a panel discussion organized by Michigan Law Professor Richard Friedman.

Listen to audio of the Constitution Day event.

Friedman introduced three Michigan Law professors ready to tackle thorny issues raised by ambiguities in America's foundational law: Does Congress or the president have the power to make war? What if a president decides to enforce a particular law passed by Congress—but then chooses not to defend that law when it's challenged in court? What happens when an FBI agent attaches a magnetic Global Positioning System tracking device to the undercarriage of your car and traces your every move—for months at a time, and without benefit of a warrant?

Constitution DayThe answers aren't always clear cut.

Professor Monica Hakimi, a former State Department attorney advisor and a scholar of public international law, discussed the first question in the context of American involvement in Libya. The president's power to make war has grown over the years, especially in the years after World War II, she said. But the chief executive still must account for his actions to Congress, especially under Congress' Vietnam-era War Powers Resolution, and in the case of Libya the argument has mainly focused on the notion that what's happening in Libya now doesn't really amount to "hostilities."

Professor Joan Larsen, formerly of the Office of Legal Counsel at the Department of Justice, focused on who decides which laws will be enforced, and by extension, what's constitutional. The administration's approach to the Defense of Marriage Act made an interesting example, she said, because while the executive branch intends to continue enforcing the law, it won't defend DOMA's constitutionality in court. The question, Larsen said, becomes whether the president has the right to make such decisions—and the answer, she said, remains unclear.

Finally, Professor David Moran, cofounder of Michigan Law's Innocence Clinic, took a look at Fourth Amendment protections against unreasonable searches. The conclusion, he said: Americans' protection against overzealous police officers has been under attack for more than three decades.

Onlookers included law students, students from across the Ann Arbor campus, and the public at large. The Constitution Day program is hosted each year by the Law School.


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