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?