Amarica's Constitution

Dive into the heated legal debate surrounding an executive order on birthright citizenship. Discover the complexities of nationwide injunctions and their constitutional implications, particularly in light of the 14th Amendment. Hear insights from Justices and attorneys as they dissect courtroom arguments and historical precedents. The discussion explores the judiciary's balance with executive authority and the urgent need for clarity from the Supreme Court. Join the conversation on the future of citizenship rights in America!

Join Dean Heather Gerken, a prominent law professor at Yale, and Judge Kevin Newsom, a U.S. Court of Appeals judge, as they share heartfelt reflections on Justice David Souter's legacy. Both former clerks for Souter, they discuss his profound influence on their careers and the legal world. The conversation touches on Souter’s commitment to judicial humility, his mentoring style, and how his unique character shaped modern jurisprudence. Their personal anecdotes reveal why Souter is revered as one of the greats in American history.

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.

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.  

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.

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.

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.

Dive into the fascinating world of Marbury v. Madison, a case that shaped the boundaries of judicial power and executive authority. Discover how political transitions could spark tensions between presidents and the judiciary. Explore the implications for contemporary debates on executive power and the vital role of judicial independence. Historical parallels are drawn with current governance challenges, making the discussion all the more relevant. Plus, you'll find insights on presidential leadership and how past events continue to inform today's legal landscape.

Steven G. Calabresi, a leading law professor at Northwestern and co-founder of the Federalist Society, dives into the contentious Unitary Executive theory and its constitutional implications. He debates historical examples, such as early congressional decisions, that challenge the current interpretation of executive power. The conversation highlights the tension between presidential authority and congressional oversight, probing the enduring complexities of executive governance. Listeners are treated to insightful discussions on fiscal integrity and the evolution of political dynamics.