Panel Discussion Offers Insight into the Constitutional Powers of the Presidency
Web Editor - Published: September 22, 2008

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“Let the record reflect that I prefer declared wars, I just prefer undeclared wars to being killed,” offered Todd Gaziano in response to an audience question about how there could be a middle ground in regards to the declaration of war.

In celebration of Constitution Day on Wednesday September 17th, three Widener Law student groups, The Federalist Society, American Civil Liberties Union, and Widener Law Review, sponsored a panel discussion entitled "The future of the Constitution: The presidency,” that took place in the Ruby R. Vale Moot Courtroom.

The panel consisted of director of the Center for Judicial and Legal Studies at the Heritage Foundation Todd Gaziano, University of Delaware professor of political science and international relations Joseph Pika, and Franics Lee, the chairman of the political science department at St. Joseph’s University. Widener Law Professor Alan Garfield served as the moderator for the discussion.

The evening program opened with a general welcome from student Brian Kisielewski, the president of both The Federalist Society and American Civil Liberties Union student groups. Widener Law Review Editor-in-Chief Robyn Airey-Rose introduced the distinguished panelists before turning the program over to professor Garfield.

Professor Garfield thanked both Brian and Robyn for putting the program together and commented on the creation of Constitution Day and what it means, mentioning the special Constitution Day website with essays gathered from prominent scholars including Professor Pika as well as Senator Joseph Biden, Jr., the Democratic nominee for vice president, and former Delaware Governor Pete DuPont.

The first point of discussion raised by Professor Garfield involved the issue of presidential war powers. Todd Gaziano noted, “Congress has most of the cards, but likes to pass the responsibility on to the President and then nitpick the way the President exercises those powers.” Professor Pika disagreed with that contention, asserting that the “pattern that has emerged is not so much one of congressional nitpicking as it is the aggressiveness of the presidential assertion of power.” Professor Lee wryly noted, “It’s nice that we honor the Constitution, but I wonder if we take it very seriously. It says here that it is Congress’s duty to declare war.” While all three panelists agreed that the framers of the Constitution intentionally left some clauses vague to allow for flexibility in the face of uncertain situations, there was some disagreement regarding the prosecution of wars not officially declared by Congress, although all three panelists did espouse a preference that wars be declared.

The panel touched on a wide range of topics ranging from whether or not the increased use of signing statements by Presidents that has occurred since the Ronald Reagan administration represents an attempt at backdoor line-item veto power and the necessity of creating a civil liberties advisory office to the President. The panelists then took questions from the audience. The first question related to whether state and local government officials or federal officials were more responsible for the slipshod response to Hurricane Katrina. While Mr. Gaziano asserted, “Sometimes things are better handled at the state level, Professor Pika simply replied, “Yes. All of them,” and Professor Lee wondered what sense a federalist system that divides the country into states even makes in the modern age. Additional questions from the audience focused on the lack of recent Constitutional Amendments, Congress’s decision not to renew the Office of Special Counsel, and how strict constructionist Supreme Court Justices view the idea of interpreting the Constitution.

The event provided a fitting cap to Constitution Day, offering an engaging and lively discussion.