Amarica's Constitution

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 Con...

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 p...

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 w...

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 prose...

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 othe...

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...

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 earl...

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 executiv...

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 found...

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. ...

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 argume...

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 le...

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 themse...

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 c...

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 ...

Amarica’s Constitution proudly celebrates four years of ambitious inquiry with a long-promised and very honored guest, former Associate Justice of the US Supreme Court, Stephen G. Breyer.  Justice Breyer placed no restrictions on our questioning, and we engaged him in a frank discussion on a variety of topics related to his time on the Court, and then we switched to his current book: Reading the Constitution: Why I Chose Pragmatism...

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 ratific...

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 o...

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 A...