Season 5, Episode 9 (Show 217): Across the Aisle – Special Guest Steven G. Calabresi

February 26, 2025

We welcome Professor Steven Calabresi, who at a time of uncertainty tells us of another day through a new biography; takes issue with our current president on an important issue; and presents arguments on yet another question which put him on the other side from Professor Amar.

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

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 offers analysis which places him 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.

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

Season 5, Episode 8 (Show 216): Impounding Impoundments – Special Guest Josh Chafetz

February 19, 2025

President Trump has ordered the government to refrain from spending money Congress has apportioned.  Is that unconstitutional?  We bring you a leading expert, Professor Josh Chafetz, to discuss.

CLE Credit Available for this episode from 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.

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

Season 5, Episode 7 (Show 215): Where Are The Lines?

February 12, 2025

With every day bringing new testing of constitutional boundaries, we begin to lay out the questions one must answer to find one’s bearing on the constitutional spectrum.

CLE Credit Available for this episode from 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.

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

Season 5, Episode 6 (Show 214): Birthright Citizenship – Judges on Benches v Judges on Barstools

February 5, 2025

We continue our deep dive into birthright citizenship, this time by examining the arguments offered in support of the President’s position.

CLE Credit Available for this episode from 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.

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

Season 5, Episode 5 (Show 213): Birthright and Birthwrong

January 29, 2025

Birthright citizenship and the first sentence of the 14th Amendment are immediately fired upon by the newly minted Trump Administration.  We help you defend the Constitution.

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

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.

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

Season 5, Episode 4 (Show 212): End of an ERA

January 22, 2025

President Biden exits with an attempt to push ERA into the constitution, and in doing so, he raises all sorts of interesting questions.  And President Trump enters with an inaugural speech which we issue-spot.

CLE Credit Available for this episode 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.

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