Amarica's Constitution

President Biden is hearing calls from many quarters to step down as a candidate.  Donald Trump is shot. Questions of presidential succession and/or resignation abound.  While it may seem these are unique and strange situations which the American republic has never faced, in fact, resignation has been a key American issue for centuries.  Episodes well-known, and others rarely taught, are reviewed o...

The Court’s opinion in the presidential immunity case Trump v. US, has sunk in. On reflection it is even worse that on first impression, and that is saying something.  But just to condemn the opinion is not enough.  Professor Amar distills the Court’s argument to its essence and explains why it completely collapses under any kind of rigorous scrutiny.  Its abandonment of originalism and of the con...

In an exhausting week, the Court released a number of long-awaited cases, and we had a consequential presidential debate. We look at several cases that many believe have profound implications for the administrative state; the opinions in SEC v. Jarkesy, and Loper Bright v. Raimondo clearly have the effect of increasing the role of courts and juries, among other things. We look at the opinions, the...

As the end of the term approaches the deluge of major cases has begun.  Two big cases - the eagerly awaited sequel to the Bruen case - Rahimi - features an orgy of originalist theorizing and opining.  Meanwhile, in Moore v. US - a case where Professor Amar and his team had an amicus brief - the tax power was upheld, but reading the opinion one might wonder if the same Court had sat for this case. ...

Akhil is in Boston this week and reminds us that the history of the American Revolution, where Boston is so pivotal, contains myriad lessons that provide insight into the student protests of today - so we look at this subject in some detail.  Meanwhile, the Court issued opinions in two prominent cases, and Akhil seems to be reluctant to take “yes” for an answer in one of them, so we take another l...

The Court is taking its time on major opinion, which gives us a moment to turn to other matters.  Ethics remain in the news; the Court’s annual financial disclosures contain a number of surprises - maybe not so surprising.  There’s a lot to say there, and we have some proposals to improve the situation.  President Biden takes a position on a pardon, and we take a position on that.  Our listeners c...

The verdict is in: guilty x 34.  A jury of Trump’s peers had its say, but the ex-president couldn’t leave it at that, of course.  On the legitimate side, the appeals are expected to begin soon.  On the Trump bombastic side, he blasted every institution in the legal system for having the audacity to do their duty.  Particularly in the case of the ordinary citizens of the jury, this bears examinatio...

The nation has been riled by campus unrest surrounding events in the Middle East.  Terms like “freedom of speech,” “academic freedom,” “right to protest,” “conduct vs. speech,” and issues of hate speech, offensive speech, safety, and more have arisen.  We start our look at this situation where we always begin: with the Constitution.  This episode aims to lay out the history, background, constituti...

More than three years after the January 6, 2021 disastrous events, we remarkably are just now first learning of a complex series of events with profound ethical implications for Justice Alito.  Like his fellow justice, Clarence Thomas, Justice Alito’s wife’s actions, possibly political in nature, have placed the Justice in a position where his own actions are being widely questioned.  We take it o...

Donald Trump’s New York trial - where a conviction would be federal pardon-proof - has proceeded apace. we are pleased to bring a report to you from the trial itself, introducing you to one of Professor Amar’s star students in the process. Are there constitutional issues stemming from the trial?  You bet, and we address some of them. Meanwhile, a number of listeners have asked similar questions re...

This week we continue with clips from the oral argument in the immunity case (Trump v. United States).  Most of this week’s clips come from attorney Dreeben (representing the Special Counsel, and therefore the people of the United States), and some of the Justices have at him, sometimes in way Professor Amar finds wrong-headed or worse.  Our own argument is brought to bear upon these controversies...

The nine Justices heard arguments on ex-president Trump’s attempt to claim a sweeping immunity from criminal liability and prosecution.  We present clips from the argument and our commentary, including some historical analysis of claims that Benjamin Franklin spoke in favor of such a thing (spoiler:  NO), and many other claims which we had predicted in recent weeks.  There is clear acceptance of s...

As we close in on oral argument in the Trump v. United States case wherein Trump asserts some sort of permanent presidential immunity, we close out our preparatory analysis.  Impeachment’s relationship to criminal prosecution is explored.  Some founding-era conversations involving, for example, John Adams, inform our discussion.  Does the concept of double jeopardy play a role? Our hope is that th...

As oral argument in the Trump immunity case draws closer, we continue our discussion of presidential immunity from criminal prosecution. Do so-called “official acts” during a president’s tenure in office raise special considerations? Constitutional text seems to offer an easy way out of the case - but does it, really -  and historical precedents enter the conversation.  Ultimately, some basic prin...

Former President Trump is making an extraordinary claim to the Supreme Court: that he is immune from criminal prosecution for crimes he may have committed while president. The Court has agreed to hear arguments on this proposition on April 25.  We begin the preparation by posing the questions and taking them on. Professor Amar is an expert on Presidential immunities.  Our analysis goes through ori...

The Supreme Court heard the case on the legality of FDA regulation of Mifepristone. Issues of standing seemed to dominate, so Professor Amar treats us to a master class on standing - in this case, and its recent evolution. He also suggests that at least one Justice might benefit by attending. In a wide-ranging episode, we also share excitement and some new scholarly insights that emerged from the...

We round up our analysis of the opinion in Trump v. Anderson with Justice Barrett’s concurrence.  All of this has raised many questions, particularly in light of the Court’s errant reasoning and other shenanigans.  And it turns out that many of the best questions come from you, our audience!  So we turn to those as well, both about Section 3, and other matters as well.  We also look at the news me...

The Trump v. Anderson lead balloon continues to smolder.  This episode looks at the areas wherein the concurring Justices took issue with the per curiam, and they are many.  Indeed, the three Justices who concurred only in the judgment disagree with the scope of the per curiam as well as its particulars, and their concurrence reads more like a dissent.  Can we find areas of agreement with ourselve...

The concurrence by three Justices (as opposed to that of Justice Barrett) in Trump v. Anderson concurs only in the judgment.  We look at different types of concurrences and why a Justice might choose one type or the other; and as for this one, we find much to dissent with.  We dissect the arguments and now with the benefit of a week since the opinion, we “slow it down” and take you carefully throu...

The Court has ruled in Trump v. Anderson, and a strange day it was.  An announcement on a Sunday of opinion on Monday; no justices present; metadata weirdness, and worst of all, a unanimous opinion that is unanimously wrong.  Concurrences that are dissents.  A nearly 250 year old electoral college system that somehow escaped the Justices.  Notorious cases cited with approval.  The opinion is a ver...

We’re back, and still waiting for the opinion in Trump v. Anderson, which gives us a chance to highlight important new evidence that has come to light - thanks in large part to Professor Amar’s great law student team.  It fatally undermines what seemed likely to be the reasoning the opinion was going to take.  Will it matter?  This is related to the role amici play in the Court ecosystem, and we l...

As promised, we return in very short order with the completion of our analysis and response to the oral argument in Trump v. Anderson - before the Court has ruled. Again, key clips from the argument are played and dissected. The previous Part I episode concentrated on arguments concerning self-execution of Section Three; this episode reviews many of the other issues addressed by the Court, from qu...

EARLY UPLOAD - The Supreme Court heard oral arguments in Trump v. Anderson on Thursday, and we were so alarmed by the errant direction they took that we decided to take to the air early. Here are key clips from the argument dissected - exposed, really - to reveal the mistaken representations of the meaning of certain cases; the ignoring of key facts which then distort others; the absence of key li...

Oral arguments are scheduled for this Thursday in the Trump v. Anderson case, concerning the possible disqualification of former President Trump from the ballot in Colorado, and with a myriad of questions surrounding Section Three of the Fourteenth Amendment at stake.  We have something new to offer, as the distinguished historian, Professor Ted Widmer, joins us to add his considerable expertise t...

Oral arguments are approaching in the Trump v. Anderson case, and the nation is talking about little else.  At the Harvard Law School, Professor Amar is invited to debate a former US Attorney General and Federal Judge, Michael Mukasey, who also submitted an amicus brief in the case together with Bill Barr and Ed Meese, among others.  We analyze the debate - and the brief.  And in that brief, Akhil...