Season 5, Episode 15 (Show 224):Equality, Emergencies, Exception, and Easter

April 16, 2025

The deportation efforts of the Trump administration as applied to Mahmoud Khalil are the starting point for this look at the rights of citizens and non-citizens in this extreme context.

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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.

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Season 5, Episode 15 (Show 223): Project 2026

April 9, 2025

In the wake of economic and market chaos, in the midst of an onslaught of assaults on the constitutional order, we take stock, diagnose the overall danger, and look at whether the system contains the needed resiliency to survive.

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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.

(LAWYERS AND JUDGES ARE ELIGIBLE FOR CONTINUING LEGAL EDUCATION CREDIT by visiting podcast.njsba.com after listening.)

Season 5, Episode 14 (Show 222): Third Time, No Charm

April 2, 2025

Can Trump continue as president beyond the end of his second term?  He says yes.  We respond with what we hope is the definitive account of the Constitutional facts and history.

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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. 

(LAWYERS AND JUDGES ARE ELIGIBLE FOR CONTINUING LEGAL EDUCATION CREDIT by visiting podcast.njsba.com after listening.)

Season 5, Episode 13 (Show 221): Wisdom From Breyer To Pryor – Special Guest Judge William Pryor

March 27, 2025

Judge William Pryor, Chief Judge of the 11th Circuit, joins us for a wide ranging conversation in two appearances, on the life, work, and tales of a prominent judge.

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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!

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Season 5, Episode 12 (Show 220): The Shelter From The Storm – Special Guest Hampton Dellinger

March 19, 2025

Hampton Dellinger, until recently the Special Counsel of the United States,  joins us to discuss his story, the work of the special counsel, and his thinking when upon his firing, he took President Trump to Court, having initial sucess before he ultimately dropped his case.

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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.

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Season 5, Episode 11 (Show 219): Marbury then, Mayhem now

March 12, 2025

As we probe the issues of the day, we somehow make our way back to an iconic case of the founding era, Marbury v. Madison, but not for the reasons you may think.  Professor Amar shows how Marbury is surprisingly relevant and may find its way into Supreme Court briefs and arguments before you know it.

CLE Credit Available for this episode from podcast.njsba.com.

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.

(LAWYERS AND JUDGES ARE ELIGIBLE FOR CONTINUING LEGAL EDUCATION CREDIT by visiting podcast.njsba.com after listening.)