Amarica's Constitution

We’re a bit late this week, because following our recent conversation with Justice Breyer, we had the opportunity to speak at length with Judge William Pryor, Chief Judge of the United States Court of Appeals for the 11th Circuit, former Alabama Attorney General, and an important member of the Judicial Conference the “national policymaking body for the federal courts.” Judge Pryor has had a colorful career, having effectively prosecuted another judge for misconduct, had a contentious confirmation hearing, clerked for a titan among judges in Judge Wisdom, and served at the highest level short of the Supreme Court for many years. We discuss a wide range of matters from judicial safety, to the importance of following Court orders, to enforcing civil rights laws, and much more. The discussion took place in two parts; with an audience of undergraduates, and then with an audience of Yale Law School students, many from the Federalist Society chapter at Yale; this produced a great variety of topics. We also have timely information on a new EverScholar program where registration is about to open; be among the first to know about this! CLE credit is available from podcast.njsba.com.

President Trump has been firing various Federal officials, many of whom serve pursuant to statutes that claim to provide protection against firing without cause. One of the most prominent, Hampton Dellinger, who served as Special Counsel of the United States, took the President to Court, winning at the Federal District Court before losing on appeal. Why did he sue? Why did he drop his case? What are the implications for the other firings being contested, and what does it mean for the office of the Special Counsel itself? The Special Counsel is a haven for whistleblowers; does that, along with the statutes’ clear intent, offer him any protection? The Special Counsel also enforces the Hatch Act; we explain many of the ins and outs of that statute and how the history of the civil service is integral to understanding it. Finally, Hampton Dellinger comes from a most distinguished family, and there are some stories to tell on that score. CLE credit is available for lawyers and judges from podcast.njsba.com.

Our recent episodes on constitutional questions such as the unitary executive have looked at founding history, but less so the cases of the founding period. In this episode we take a look at one of the most famous cases of all, Marbury v. Madison. But this isn’t primarily a look at judicial review, but instead Marbury reveals itself, in Professor Amar’s hands, as a key administrative law case, with surprising relevance for, among other things, questions of presidential transition and unitary executive theory. How did a change of party in the White House lead to tension with an unpredictable, even rash, president? The answers will surprise you, and may be further explored in briefs in the Supreme Court case that is sure to come before long. CLE credit is available for lawyers and judges from podcast.njsba.com.

President Trump continues to wield the ax in a manner consistent with Unitary Executive theory. The question is, is it also consistent with the Constitution, and with the various statutes on the books that are at odds with that theory? Professor Calabresi returns for more discussion of this crucial question; in this episode, Akhil is pressing a number of challenges to the theory. Among these is an important example from the early Republic, which indeed followed soon after the Decision of 1789, which is so heavily relied upon by proponents of the unitary executive. History, text, structure - all come together in a lively debate.

We are joined by Professor Steven Calabresi, the co-founder and co-president of the Federalist Society, for three big topics. First, he offers insights for this fraught moment in our history with a new book on a key figure from an earlier era. Second, he finds himself on the other side from our current president on an important constitutional issue of the day. And third, he and Professor Amar explore aspects of unitary executive theory, where they find themselves diverging on key cases that have profound implications for many of the more controversial actions of the new administration. All in all, it adds up to something you don’t see that often these days: a prominent conservative and a scholar often on the side of the Democrats having civil discussion and finding common ground as well as principled disagreement. Professor Calabresi speaks for himself in this podcast, and not on behalf of the Federalist Society. CLE credit is available for lawyers and judges at podcast.njsba.com.

A Federal District Court has temporarily halted an executive order from President Trump that purports to halt wide swaths of federal spending. This impoundment of funds duly appropriated by Congress may violate the Constitution as well as federal statutes. We bring an expert on the relationship between Congress and the Presidency, Professor Josh Chafetz, and he takes us back to 17th century and Britain, through the American founding, into the early republic, and indeed into the presidency of Richard Nixon to give a full historical and originalist background. But there’s more, with modern statutes, Supreme Court cases, structural analysis - in short, everything. And for good measure, we dive a little deeper into some statements by Vice President Vance which seem to suggest that he thinks the President is not bound by the Supreme Court’s decisions and orders. Professor Amar appeared on CNN to discuss this, and now he expands on those comments. Lots of depth in this episode, and as usual, CLE credit is available for lawyers and judges by visiting podcast.njsba.com.

Funds are impounded. Board members are summarily dismissed. Funds appropriated by Congress are impounded. Inspectors General are removed without notice or cause. And arguments are still being made to undermine birthright citizenship. Are all these actions unconstitutional? It turns out that it appears that many may well be, but others that may seem nearly identical may if fact be legal, if of questionable wisdom or propriety. We explain where the constitutional lines are for many of these matters, or in some tricky cases we show how one goes about looking for those lines. And while we are at it, we believe we have dug the last shovels worth in the grave of the attempt to distort, pervert, or reduce birthright citizenship. CLE credit is available for lawyers and judges at podcast.njsba.com.

In the aftermath of a scathing ruling by the Federal District Court and its issuance of an order blocking President Trump’s executive order which attempted to abridge birthright citizenship, one might think the matter closed. But appeals await, no doubt. Last podcast we offered Professor Amar’s arguments in support of his interpretation - and the interpretation of most legal experts - of the matter, but obviously there were arguments made in opposition. We address these arguments, starting with those made in Trump’s brief in the case, and going beyond them as well. In doing so, we revisit a familiar name: Justice Joseph Story, who Trump’s lawyers attempt to enlist in support of their position, with arguments that perhaps don’t tell the whole story.

The Trump Administration takes office, and the Constitution is immediately in the crosshairs. An executive order targeting birthright citizenship and the Fourteenth Amendment is issued on the first day, with an even more extreme version of its renouncement than had previously been contemplated. The pushback begins in a Washington courtroom, and a Federal District Judge shoots it down with a nationwide injunction. But surely the legal battle continues; we are here to arm you with Professor Amar’s arguments, articulated over many years and well in advance of this crisis. Text, history, structure, precedent, and more are placed in the service of the Constitution and one of its most fundamental and consequential sentences. You should be in a position to argue this case before the Supreme Court after listening to this episode. CLE credit is available for lawyers and judges from podcast.njsba.com

The last days of the Biden administration have come and gone, and with them, some controversy in the form of a presidential statement on ERA ratification, and some more controversial pardons. Then came the inauguration of President Trump, and an inaugural speech some found dark and atypical, if unsurprising. The many events that followed will be fodder for future podcasts, but here we look at Presidents attempting to insert themselves in various ways that seem outside the norm, including a role in constitutional amendments. And the norm-buster Trump sounded several themes in the inaugural that we highlight. The speech and what followed were an avalanche of controversy, and perhaps that’s the idea, but we make a start. CLE credit is available for lawyers and judges from podcast.njsba.com.

As Inauguration Day approaches, anxiety and uncertainty, even dread, mixes with the optimism of some in the American polity. Many express a mix of apathy, weariness, or hopelessness, with a sentiment akin to “wake me in four years.” What would they find when awakened? We begin to take a look ahead, in part by looking behind and evaluating how our own earlier prognostications have turned out. We start with abortion and the Dobbs case, as it loomed large in recent years and clearly continues to reverberate and feeds resentment on one side, activism on the other. What lies ahead for the law, the Court, and the people? CLE credit is available for lawyers and judges at podcast.njsba.com.

With rumblings around a possible Constitutional Convention around, we have noted some similarities with those issues that surrounded the recent ERA discussions. Now we dive deeper. Can a convention be limited to one possible amendment or some small group of amendments, or is a “runaway convention” a real possibility? Can a state (this means you, California) rescind its previous vote calling for a convention? Suppose there were a convention; would it be like the Philadelphia convention? Would California be no more powerful than Wyoming in such a meeting? In fact, there are even more terrifying implications and scenarios - and we will review them for you. Meanwhile, we have a new Speaker of the House - for now - and the January 6th certification did take place without incident. But many believe the Speaker’s days may be numbered, and so our review of the history behind Speaker selections in the past remains relevant - and fascinating. That John Quincy Adams keeps showing up in the strangest places - like the presiding officer’s chair when he arguably had no business there. What’s up with that?

Amarica’s Constitution proudly celebrates four years of ambitious inquiry with a long-promised and very honored guest, former Associate Justice of the US Supreme Court, Stephen G. Breyer. Justice Breyer placed no restrictions on our questioning, and we engaged him in a frank discussion on a variety of topics related to his time on the Court, and then we switched to his current book: Reading the Constitution: Why I Chose Pragmatism, not Textualism. As you can imagine, Professor Amar has some opinions on the matter as well. The discussion ranged far, from the French essayist Montaigne to 20th century American pragmatists, as Justice Breyer’s broad range is displayed in a way few have seen. We take our time, and the Justice generously indulged, for an in-depth look at the thinking that helped shaped the bench for decades. This podcast will be available on YouTube video as well as the usual audio feeds found here; we will provide information on accessing the video in subsequent podcast episodes, as well as on our Instagram feed - check it out. CLE credit is available through podcast.njsba.com.

As the Biden Administration winds down, pressure is being applied to the President, asking him to order the National Archivist to certify the Equal Rights Amendment as part of the Constitution. Senator Gillebrand has submitted a letter, co-signed by more than 40 Senators, making arguments that harken back to the resolution that accompanied the 1972 amendment, when Congress purported to place a time limit on the amendment’s ratification. Also, some state legislatures withdrew their ratification after initially approving it, and the Senators are crying foul on this. We take a deep dive into the arguments put forth by the amendment’s implementation advocates, the history of other amendments that faced analogous issues, including the great 14th amendment, and Professor Amar’s own scholarship on the matters. Meanwhile, our 4th anniversary is approaching, and we preview the gala event - with Justice Breyer getting behind the microphone with us before you know it! CLE credit is available from podcast.njsba.com.

In the wake of President Biden’s pardon of his son, and with the shadow of President-elect Trump’s possible pardons of the insurrectionists who stormed the Capitol and attempted to prevent Congress from certifying Biden’s election, are there constitutional issues? The Constitution itself seems direct on the subject, but it turns out there is a lot to discuss. Scope, timing, subject, language, all are questionable. Would either or both of these be impeachable acts? What would happen to the pardon in that case? Are there immunity issues? Where does the pardon power come from, and how has it been used in the past? What is the originalism of pardon law? Lots to talk about, however you feel about the acts themselves politically. And - some big coming attractions! CLE credit is available from podcast.njsba.com.

Could Republicans in the House conspire with a 2025 President Trump to manufacture a forced Senate recess in an effort to bypass the advise and consent appointments process? The much-anticipated article in The Atlantic has been published, to widespread approval. We proudly present all three co-authors of this article in a wide-ranging, nuanced, fascinating discussion, as Professors Josh Chafetz, Tom Schmidt, and of course Akhil Amar reunite to take us from Restoration England to the chambers of the Supreme Court where Professor Schmidt clerked for Justice Breyer, the author of the principal case on recess appointments, NLRB v. Noel Canning, in 2014. We hear how that case has lessons, and yet is distinguished, from the scenario here, and what might happen if the contemplated maneuvers, deemed grossly unconstitutional by our experts, try it anyway. CLE credit is available from podcast.njsba.com.

The presidential transition is always a bit fraught, as we have discussed in past episodes, but this one seems to be boundary-pushing, even for Trump. He intends to fire the FBI director, whom he appointed, (can he do that? - we explain) and replace him with a singularly problematic bomb thrower. He had pardoned a family criminal, and now appoints him to be ambassador to France. He prizes loyalty to him above all, it seems, but is there a place for competence? And we have more on the withdrawal of Gaetz and his strange resignations. Speaking of resignations, a judge in Ohio has thrown yet another resigning twist our way. This episode was recorded prior to the Hunter Biden pardon, which will be discussed in a later episode. CLE credit is available from podcast.njsba.com.

Colorado’s Supreme Court ruled that Donald Trump was ineligible for the Presidency under Section 3 of the 14th Amendment, following a trial, a verdict, and appeals. The January 6th commission had numerous findings of fact that seemed damning to the former President. The Special Counsel brought charges against him related to the fateful day. But the Supreme Court unanimously ruled against Colorado; the Justice Department is dropping their case; the January 6th commission has disbanded. Meanwhile there has been no ruling that Trump did not in fact violate Section 3. Does it exist? And if it does, what are the implications for Congress’ certification of the vote in early January 2025? We return to this subject even as the nation seems to be leaving it behind. Also - an early look at some of the background to the recess appointment article authored by Prof. Amar and others which will appear soon, and a celebration of a great man and a great historian. CLE credit is available from podcast.njsba.com.

President-elect Trump has begun to announce his plans for his cabinet and other top appointments for January. Unconventional is a kind word for some of them. And suddenly, in a House where Republicans have a razor-thin majority, there is a resignation - months before it would be required. Why? There are conspiracy theorists for health care positions; admirers of Putin for intelligence posts; newscasters who have never managed anything for one of the largest organizations in the world. The Constitution has something to say about some of these, and we dive in. Suffice to say, the water is murky. CLE credit is available for lawyers and judges from podcast.njsba.com.

The election is behind us, and foreboding fills the air. We are live at the Yale Club of New York City for a live recording, addressing some of the many constitutional matters that are or soon may be front of mind as the seemingly inevitable challenges to norms, rules, and laws await. Matters as wide-ranging as the implications of undivided government; the significance of state constitutional amendments on abortion; Justice Sotomayor’s future; recess appointments - and much more are on our plate this week. CLE credit is available for lawyers and judges at podcast.njsba.com.