Amarica's Constitution

The Merits of The Merits

The Trump executive order on birthright citizenship has been banging around the lower federal courts for months now, with court after court opining on its unconstitutionality and issuing injunctions against it that span the nation.  The Supreme Court took cert on the question of whether such national injunctions are appropriate, and if not, how the relief that appears indicated can be offered.  Along the way questions of the merits poked their way through, with interesting results.  In this episode you will hear from the justices and the attorneys, and you will hear Professor Amar doing his Howard Cosell halftime highlights imitation, opining on their arguments, responses, and questions, and offering a holistic approach to the case as well as some new theories on how to think about citizenship in this context.  A “clip episode” as only Amarica’s Constitution does it.  CLE credit is available for lawyers and judges from podcast.njsba.com.

A Judicious Life, Part One - Special Guests Dean Heather Gerken and Judge Kevin Newsom

With the passing of Justice David Souter, the legal establishment has lost one of its most honored members.  In this and our next episode, we pay tribute to the man and his work with the help of an amazing roster of his former clerks, friends, and colleagues.  We begin with Judge Kevin Newsom from the US Court of Appeals for the Eleventh Circuit, and the Dean of the Yale Law School, Heather Gerken, who share their experience working closely with the Justice on the Supreme Court, as well as his role in their lives that did and does inspire them.  Meanwhile, Akhil, who considered the Justice a good friend and role model, offers an in-depth look at various aspects of the Justice, including why a Justice who disagreed with Akhil on method and, in many cases, substance, nevertheless is regarded by him as one of the great Justices in American history.  In our next episode we will have more guests whom we will reveal in the discussion during this episode.  CLE credit is available for lawyers and judges from podcast.njsba.com.

No School For You - Special Guest Vikram D. Amar

Law firms are threatened with draconian penalties, with scarcely disguised vengeful and politically destructive motive.  Universities are dragged on the carpet, with demands that they forfeit their academic freedom, choice in hiring, and internal mission priorities.  What’s going on here?  What is likely to happen in Court?  Are the firms and universities defensible on constitutional grounds as well as because of procedural and statutory reasons?  We bring on Vik Amar, former Dean at the Law School at University of Illinois, Urbana, and author of recent articles on both these crises.  And while we are at it, we take a look at the forthcoming Supreme Court oral arguments in the birthright citizenship case, which superficially is about nationwide injunctions.  Is that really what it’s about, and in any case, is there more than that there?  Three of our current crises in one sweeping conversation.  CLE credit is available for lawyers and judges from podcast.njsba.com.

Equality, Emergencies, Exception, and Easter

Deportations, the administration’s preferred tactic du jour, appear to many as extreme, inadvisable, and often cruel.  Are they unconstitutional?  What framework can we use to determine the rights of citizens versus aliens, even if legal, even if permanent resident?  What kind of process is “due” for the various groups? Where can we locate the origins in our history, and how do they interact with some of the great themes of the Constitution, including the guarantees of the Bill of Rights, and the rights of “persons” as expressed in the 14th Amendment? The case of Mahmoud Khalil offers a set of facts that shed light on these questions, as do other deportations; we start with this one.  

Project 2026

Markets are crashing; freedom seems under siege; the international order is threatened.  One man’s whim seems to be decisive.  Where are the guardrails of our republic?  We see some glimmers through the darkness, as some of the feedback mechanisms start to kick in.  The constitutional order may be slow but it may not be completely in ruins.  However, there is a threat, and we identify it in not one, but the sum of the actions the president has pursued.  Many of these are unconstitutional; others may well be.  The first step in protecting the republic from these threats is to identify them.  We take that on and at least make a start; the task, in the end, however, will be up to the American people, as Project 2025 may fall to Project 2026.

Third Time, No Charm

President Trump likes being president.  He doesn’t like the 22nd amendment so much, and has spoken, with increasing seriousness, of his conviction that he could remain president beyond the end of his second term.  Various pundits have weighed in, some dismissively, others with grave declarations that Trump can accomplish this through constitutional contortions of one sort of another.  Professor Amar, it turns out, has thought and written about this decades ago.  We will take you through all the history; all the constitutional provisions - beyond the 22nd amendment alone; all the supposed workarounds,; and present you with a definitive understanding of the matter.  Look to our episode number - 222 - for a preview of where we think it will come out.  CLE credit is available for lawyers and judges from podcast.njsba.com.

Wisdom From Breyer To Pryor - Special Guest Judge William Pryor

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.

The Shelter From The Storm - Special Guest Hampton Dellinger

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.

Marbury then, Mayhem now

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.

Sinking the Unitary Executive - Special Guest Steven G. Calabresi

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.