Professors Epstein and Yoo answer listener questions, exploring the possibility of a president serving from prison, the state of abortion law post-Dobbs case, the influence of writing skills on Supreme Court justices, the impact of Trump on the Supreme Court, and the importance of Gias's Institutes in understanding Roman law.
The question of whether Donald Trump can fulfill his duties as president while in prison raises complex legal considerations, including the application of the federal doctrine of preemption.
The 14th Amendment's provision on barring individuals from holding federal office based on insurrection or rebellion is unlikely to apply to the presidency without federal government involvement.
The Dobbs case has shifted the focus on abortion regulation back to the political process, allowing states to have varying policies on this issue.
Deep dives
Consequences of Conviction and Presidential Election
If Donald Trump is convicted and sentenced to jail time but still wins the 2024 presidential election, it raises the question of what happens. While pardon laws in Georgia are restrictive, it is unlikely that the relevant question is whether he can be pardoned or not. Instead, the relevant question is whether he can fulfill his duties as president while in prison. The federal doctrine of preemption suggests that he would need to be released from prison to fulfill his federal term and then potentially resume his position afterwards. The same analysis would apply to federal convictions and whether they disqualify a president from holding office. Ultimately, impeachment and high crimes and misdemeanors would be the more appropriate grounds for disqualification, rather than imprisonment.
Insurrection and Holding Federal Office
Some have argued that under the 14th Amendment, people who engaged in insurrection or rebellion, like Donald Trump, should be barred from holding federal office. However, the application of this argument to the presidency is questionable. The provision in question refers to being an officer of the United States, such as a senator, representative, or elector, but not specifically to the president or vice president. Furthermore, without any findings or charges of insurrection or rebellion against Trump, it is premature to invoke this provision. Determining whether Trump is considered an insurrectionist for the purpose of barring him from the ballot would require federal government involvement, rather than individual state officials making independent determinations.
Abortion Law and State vs. Federal Control
After the Dobbs case, there has been a renewed focus on abortion laws and whether they should be decided at the state or federal level. Currently, it is up to each state to regulate abortion, and this aligns with the broader constitutional framework where states have the power to regulate most issues unless expressly given to the federal government. Arguments have been made for enacting federal laws defining abortion regulations based on the 14th Amendment's due process clause and enforcement provision. However, the Constitution was designed to limit federal action, and it is unlikely that the framers intended for the federal government to have broad control over issues like abortion. Ultimately, the Dobbs decision means that the matter is returned to the political process, allowing different states to have varying policies on abortion. The future of abortion law will likely involve debates and conflicts between Congress and the states, as they navigate the complexity of federalism.
The Relationship Between Roe v. Wade and Lockman
In the podcast, the speaker discusses the relationship between Roe v. Wade and Lockman. They argue that while Lockman was rightly decided as it upheld the police power to protect innocent life, Roe v. Wade was wrongly decided as it expanded judicial power. The speaker's view is that for health measures like mandatory vaccines, the government should prove that they are legitimate and address serious health risks, rather than imposing them without allowing challenges.
The Influence of Populism on the Supreme Court
The podcast episode also explores the influence of populism on the Supreme Court. The speaker acknowledges the rise of nationalist and populist sentiments in American politics, which have spread to elected officials. However, they argue that the courts, including the Supreme Court, tend to be the last branch of government to adapt to populist movements. They believe that the Court will continue its counter-majoritarian and anti-democratic trend, staying true to its role as a potential balancer of political movements.
It’s an interactive session in the faculty lounge, as Professors Richard Epstein and John Yoo submit to the annual tradition of answering listener questions. There’s some serious legal analysis — can Donald Trump become president from behind bars? Can the 14th Amendment keep him off the ballot? What powers does Congress have to regulate abortion in the aftermath of the Dobbs case? But then we go to the deep cuts: Who are the greatest writers in the history of the Supreme Court? What’s it really like behind closed doors in Washington? Will the populist swing in the Republican Party reshape the Supreme Court? And then, of course, someone had to ask Richard about Roman Law. Be careful what you wish for.
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