Season 4, Episode 51 (Show 208): Changing Your Mind, or Changing the Rules
December 25, 2024
The Equal Rights Amendment is on the agenda again, with many Democratic Senators asserting that it has already been ratified and should be so certified by the National Archivist. We analyze.
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As the Biden Administration winds down, pressure is being applied to the President, asking him to order the National Archivist to certify the Equal Rights Amendment as part of the Constitution. Senator Gillebrand has submitted a letter, co-signed by more than 40 Senators, making arguments that harken back to the resolution that accompanied the 1972 amendment, when Congress purported to place a time limit on the amendment’s ratification. Also, some state legislatures withdrew their ratification after initially approving it, and the Senators are crying foul on this. We take a deep dive into the arguments put forth by the amendment’s implementation advocates, the history of other amendments that faced analogous issues, including the great 14th amendment, and Professor Amar’s own scholarship on the matters. Meanwhile, our 4th anniversary is approaching, and we preview the gala event – with Justice Breyer getting behind the microphone with us before you know it!
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Show Notes:
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Season 4, Episode 50 (Show 207): Unpardonable
December 18, 2024
President Biden pardoned his son Hunter. President-elect Trump says he will pardon January 6 rioters and insurrectionists. What does it mean?
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In the wake of President Biden’s pardon of his son, and with the shadow of President-elect Trump’s possible pardons of the insurrectionists who stormed the Capitol and attempted to prevent Congress from certifying Biden’s election, are there constitutional issues? The Constitution itself seems direct on the subject, but it turns out there is a lot to discuss. Scope, timing, subject, language, all are questionable. Would either or both of these be impeachable acts? What would happen to the pardon in that case? Are there immunity issues? Where does the pardon power come from, and how has it been used in the past? What is the originalism of pardon law? Lots to talk about, however you feel about the acts themselves politically. And – some big coming attractions!
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Show Notes:
Season 4, Episode 49 (Show 206): Recess Games – Special Guests Josh Chafetz and Thomas Schmidt
December 11, 2024
The promised article in The Atlantic on the worrisome possibility of a recess conspiracy is out; in this episode we have all three authors of the article discussing its theme, background, and fine points.
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Could Republicans in the House conspire with a 2025 President Trump to manufacture a forced Senate recess in an effort to bypass the advise and consent appointments process? The much-anticipated article in The Atlantic has been published, to widespread approval. We proudly present all three co-authors of this article in a wide-ranging, nuanced, fascinating discussion, as Professors Josh Chafetz, Tom Schmidt, and of course Akhil Amar reunite to take us from Restoration England to the chambers of the Supreme Court where Professor Schmidt clerked for Justice Breyer, the author of the principal case on recess appointments, NLRB v. Noel Canning, in 2014. We hear how that case has lessons, and yet is distinguished, from the scenario here, and what might happen if the contemplated maneuvers, deemed grossly unconstitutional by our experts, try it anyway.
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Show Notes:
Season 4, Episode 48 (Show 205): The Obsequious Instruments of His Pleasure
December 3, 2024
Appointments roll out, many seemingly problematic. We explore issues related to FBI Directors old and new, of pardoned criminals as ambassadors, of seats in the House suddenly opened, and much more.
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The presidential transition is always a bit fraught, as we have discussed in past episodes, but this one seems to be boundary-pushing, even for Trump. He intends to fire the FBI director, whom he appointed, (can he do that? – we explain) and replace him with a singularly problematic bomb thrower. He had pardoned a family criminal, and now appoints him to be ambassador to France. He prizes loyalty to him above all, it seems, but is there a place for competence? And we have more on the withdrawal of Gaetz and his strange resignations. Speaking of resignations, a judge in Ohio has thrown yet another resigning twist our way. This episode was recorded prior to the Hunter Biden pardon, which will be discussed in a later episode.
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Show Notes:
Season 4, Episode 47 (Show 204): Does Section Three Live?
November 27, 2024
What happened to Section 3 of the 14th Amendment? Did the Supreme Court kill it with their ruling against Colorado? What about the role of Congress? This and more as the ominous transition continues.
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Colorado’s Supreme Court ruled that Donald Trump was ineligible for the Presidency under Section 3 of the 14th Amendment, following a trial, a verdict, and appeals. The January 6th commission had numerous findings of fact that seemed damning to the former President. The Special Counsel brought charges against him related to the fateful day. But the Supreme Court unanimously ruled against Colorado; the Justice Department is dropping their case; the January 6th commission has disbanded. Meanwhile there has been no ruling that Trump did not in fact violate Section 3. Does it exist? And if it does, what are the implications for Congress’ certification of the vote in early January 2025? We return to this subject even as the nation seems to be leaving it behind. Also – an early look at some of the background to the recess appointment article authored by Prof. Amar and others which will appear soon, and a celebration of a great man and a great historian.
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Show Notes:
Season 4, Episode 46 (Show 203): The Gaetz of Hell
November 20, 2024
The president-elect has been rolling out his intended nominees, and they are sufficiently outlandish to raise a variety of constitutional questions, which we begin to address.
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President-elect Trump has begun to announce his plans for his cabinet and other top appointments for January. Unconventional is a kind word for some of them. And suddenly, in a House where Republicans have a razor-thin majority, there is a resignation – months before it would be required. Why? There are conspiracy theorists for health care positions; admirers of Putin for intelligence posts; newscasters who have never managed anything for one of the largest organizations in the world. The Constitution has something to say about some of these, and we dive in. Suffice to say, the water is murky.
(LAWYERS AND JUDGES ARE ELIGIBLE FOR CONTINUING LEGAL EDUCATION CREDIT by visiting podcast.njsba.com after listening.)