Law firms are threatened with draconian penalties, with scarcely disguised vengeful and politically destructive motive. Universities are dragged on the carpet, with demands that they forfeit their academic freedom, choice in hiring, and internal mission priorities. What’s going on here? What is likely to happen in Court? Are the firms and universities defensible on constitutional grounds as well as because of procedural and statutory reasons? We bring on Vik Amar, former Dean at the Law School a...
Apr 23, 2025•1 hr 23 min•Season 5Ep. 225
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 Constitution, including the guarantees of the Bill of Rights, and the r...
Apr 16, 2025•1 hr 36 min•Season 5Ep. 224
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 president has pursued. Many of these are unconstitutional; others may w...
Apr 09, 2025•1 hr 29 min•Season 5Ep. 223
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 hist...
Apr 02, 2025•1 hr 17 min•Season 5Ep. 222
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 confirmatio...
Mar 27, 2025•1 hr 31 min•Season 5Ep. 221
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 t...
Mar 19, 2025•1 hr 33 min•Season 5Ep. 220
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 exe...
Mar 12, 2025•1 hr 17 min•Season 5Ep. 219
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, w...
Mar 05, 2025•1 hr 39 min•Season 5Ep. 218
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...
Feb 26, 2025•2 hr 1 min•Season 5Ep. 217
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 Ric...
Feb 19, 2025•1 hr 41 min•Season 5Ep. 216
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 matter...
Feb 12, 2025•1 hr 19 min•Season 5Ep. 215
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 ...
Feb 05, 2025•1 hr 27 min•Season 5Ep. 214
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...
Jan 29, 2025•1 hr 46 min•Season 5Ep. 213
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 ...
Jan 22, 2025•1 hr 28 min•Season 4Ep. 212
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 re...
Jan 15, 2025•1 hr 28 min•Season 4Ep. 211
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 Cal...
Jan 08, 2025•1 hr 29 min•Season 5Ep. 210
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, not Textualism. As you can imagine, Professor Amar has some opin...
Jan 01, 2025•1 hr 36 min•Season 5Ep. 209
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 a...
Dec 25, 2024•1 hr 34 min•Season 4Ep. 208
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...
Dec 18, 2024•1 hr 10 min•Season 4Ep. 207
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 ...
Dec 11, 2024•1 hr 21 min•Season 4Ep. 206
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 ...
Dec 04, 2024•1 hr 34 min•Season 4Ep. 205
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 ...
Nov 27, 2024•1 hr 7 min•Season 4Ep. 204
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 Consti...
Nov 20, 2024•1 hr 7 min•Season 4Ep. 203
The election is behind us, and foreboding fills the air. We are live at the Yale Club of New York City for a live recording, addressing some of the many constitutional matters that are or soon may be front of mind as the seemingly inevitable challenges to norms, rules, and laws await. Matters as wide-ranging as the implications of undivided government; the significance of state constitutional amendments on abortion; Justice Sotomayor’s future; recess appointments - and much more are on our plate...
Nov 13, 2024•1 hr 31 min•Season 4Ep. 202
We are here early this week - for Election Day! And we bring you a panel that looks at elections, and Presidents, from American history, putting this year’s choice in perspective. Gordon Wood, the greatest historian of the early Republic; Steven Smith, an expert on political institutions, on The Federalist, on Lincoln; Paul Grimstad, authority on great American thinkers and writers like Emerson and Thoreau; and of course, Professor Amar, weigh in on all sorts of questions and aspects of this yea...
Nov 05, 2024•1 hr 33 min•Season 4Ep. 201
It's 200 episodes for Amarica's Constitution, and we mark the occasion by bringing you a key expert for an in-depth exploration of a breaking development. Ruth Marcus, long-time Washington Post columnist, editor, Pulitzer Prize nominee, and insider, joins us to explore the inexplicable: the last-minute decision by the Post and its owner, billionaire Jeff Bezos, to withhold what would have been an endorsement for Vice President Harris for election to the Presidency. What goes on in an editorial b...
Oct 30, 2024•1 hr 21 min•Season 4Ep. 200
We are approaching our 200th episode and completing our 4th year of “Amarica’s Constitution,” and it seems appropriate to take stock. By coincidence, the Yale Law School is celebrating its own anniversary, and these things come together as Akhil is part of a big event and presents a “big idea” that sounds like a strange saying: “the Constitution is a thing.” We explain, elaborate, and celebrate a little bit. We look back, and we look ahead to some real excitement over the next few months (beside...
Oct 23, 2024•1 hr 7 min•Season 4Ep. 199
In Trump v. United States, we have said that the Court went far astray from the Constitution and from its duty, endangering the nation in the short and long terms. Many have shared this opinion and these fears, and reaction has been profound. In the New York Times, two law professors take up the pen and offer a number of suggestions that purport to restrain and direct the Court towards Congress’ will, assuming that Congress agrees with the authors, that is. Senator Schumer in a recent bill took ...
Oct 16, 2024•1 hr 50 min•Season 4Ep. 198
The Supreme Court has, through its recent follies, managed to bring the status of ex-presidents into the spotlight. How appropriate, then, that perhaps America’s greatest ex-president reaches a milestone this past week: Happy Birthday, President Carter. The ex-presidents, it turns out, have told a myriad of stories through the centuries. America largely avoided succession crises until recently, but as far back as Alexander Hamilton, the potential for mischief was seen and feared. Professor Amar,...
Oct 09, 2024•1 hr 28 min•Season 4Ep. 197
Donald Trump continues to spout inflammatory rhetoric; he has compounded his talk of being “a dictator on day one” with an intention to conduct a “purge” with extreme violence allowed, again allegedly for one day. All this makes one expect that he will not back off his first-term tendency to take an authoritarian posture regarding the Justice Department. The New York Times ran an article presenting new and thorough look at Trump and the Dept in his prior term, and we analyze. We also take more o...
Oct 02, 2024•1 hr 21 min•Season 4Ep. 196
