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.)

Season 5, Episode 3 (Show 211): Looking Forward, Looking Back

January 15, 2025

What does a Trump administration with a Republican Congress and a conservative Supreme Court mean for the next few years? We start to tackle this by looking back and projecting the arrow into the future, beginning with Dobbs and abortion then, now, and later.

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

As Inauguration Day approaches, anxiety and uncertainty, even dread, mixes with the optimism of some in the American polity. Many express a mix of apathy, weariness, or hopelessness, with a sentiment akin to “wake me in four years.” What would they find when awakened?  We begin to take a look ahead, in part by looking behind and evaluating how our own earlier prognostications have turned out.  We start with abortion and the Dobbs case, as it loomed large in recent years and clearly continues to reverberate and feeds resentment on one side, activism on the other.  What lies ahead for the law, the Court, and the people? 

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

Season 5, Episode 2 (Show 210): Unconventional

January 8, 2025

The issues surrounding a possible constitutional convention are many, underappreciated, and incredibly dangerous.  Learn why.

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

With rumblings around a possible Constitutional Convention around, we have noted some similarities with those issues that surrounded the recent ERA discussions.  Now we dive deeper.  Can a convention be limited to one possible amendment or some small group of amendments, or is a “runaway convention” a real possibility?  Can a state (this means you, California) rescind its previous vote calling for a convention?  Suppose there were a convention; would it be like the Philadelphia convention?  Would California be no more powerful than Wyoming in such a meeting?  In fact, there are even more terrifying implications and scenarios – and we will review them for you.  Meanwhile, we have a new Speaker of the House – for now – and the January 6th certification did take place without incident.  But many believe the Speaker’s days may be numbered, and so our review of the history behind Speaker selections in the past remains relevant – and fascinating.  That John Quincy Adams keeps showing up in the strangest places – like the presiding officer’s chair when he arguably had no business there.  What’s up with that? 

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