Amarica's Constitution

Impounding Impoundment - Special Guest Josh Chafetz

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.

Where Are The Lines?

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.

Birthright Citizenship - Judges on Benches v Judges on Barstools

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.

Birthright and Birthwrong

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

End of an ERA

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.

Looking Forward, Looking Back

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.

Unconventional

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? 

Justice on the Spot - Special Guest Justice Stephen Breyer

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.

Changing Your Mind, or Changing The Rules

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.

Unpardonable

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.