Sinking the Unitary Executive - Special Guest Steven G. Calabresi

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.

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.  CLE credit is available for lawyers and judges from podcast.njsba.com.

President Trump continues to wield the ax in a manner consistent with Unitary Executive theory.  The question is, is it also consistent with the Constitution, and with the various statutes on the books that are at odds with that theory?  Professor Calabresi returns for more discussion of this crucial question; in this episode, Akhil is pressing a number of challenges to the theory.  Among these is an important example from the early Republic, which indeed followed soon after the Decision of 1789, which is so heavily relied upon by proponents of the unitary executive.  History, text, structure  - all come together in a lively debate.

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 finds himself 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.  CLE credit is available for lawyers and judges at 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, and as usual, CLE credit is available for lawyers and judges by visiting 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.  CLE credit is available for lawyers and judges at 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.

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.  CLE credit is available for lawyers and judges from podcast.njsba.com