It is difficult to exaggerate Justice Antonin Scalia’s outsized impact on American constitutional law. Originalism and textualism, the interpretive methods he championed throughout his career, are key themes in today’s legal landscape thanks in large part to his elegant and witty defense of their merits.

In this episode of Unprecedential, two former Scalia clerks, Sixth Circuit Judge Jeffrey Sutton and the Ethics and Public Policy Center’s president Ed Whelan, join Adam to talk about the recent compilation of Scalia’s writings they edited, The Essential Scalia: On the Constitution, the Courts, and the Rule of Law.

Americans are all too aware of the partisan warfare involved in recent nominations to the Supreme Court. Heated political frenzy accompanied Brett Kavanaugh, Merrick
Garland, and Neil Gorsuch on their path to reaching (or being denied) a seat on the nation’s highest bench. How much further will the Supreme Court nomination battles escalate? How did we get here? How much of today’s vitriolic atmosphere surrounding the nomination process is business as usual, and how much is it a symptom of our polarized era?

Ilya Shapiro, author of the forthcoming book Supreme Disorder: Judicial Nominations and the Politics of America’s Highest Court, joins Adam on this episode of Unprecedential todiscuss the fascinating and sometimes unexpected history of Supreme Court nominations. This history involves idiosyncratic moments, such as men being confirmed to the Supreme Court before they even knew they were nominated in the earliest days of the republic. There are also interesting anecdotes of nominations past, including the fact that hearings for judicial nominees began only in the 1930s.

Every presidential election involves at least some uncertainty. But usually the uncertainty is the outcome—not the process itself. In 2020, however, with COVID-19 complicating every aspect of our lives, there is great uncertainty around how the basic processes of casting and counting votes will work.

Will polling places be staffed? Will significant expansion of mail-in voting be sustainable? Will the Electoral College be able to complete its work in accordance with constitutional and statutory deadlines? The elections will present a tangle of legal problems, complicating both people’s exercise of their right to vote and their faith in the security and legitimacy of electoral process itself.

Since the election of Donald Trump, Americans have been sharply divided in their views of his presidency. Has he preserved the Founding Fathers’ vision of an energetic executive? Or has President Trump, in his quest for executive efficiency, sidestepped crucial constitutional constraints? This episode presents John Yoo and Adam White’s conversation from the July 28 AEI webinar on John’s new book, Defender in Chief: Donald Trump’s Fight for Presidential Power. During their conversation, John and Adam examine Donald Trump’s performance as president. But they also unearth and discuss deeper theories about the nature of executive power. John contends that president have a “power to reverse,” meaning a vastly consequential policymaking power to modify the decisions of previous administrations. John also sees a vital role for presidents, not just the Supreme Court, in defending the Constitution. In this episode, Adam and John consider and debate these ideas and others that animate American constitutionalism today.

The post Defender in Chief: John Yoo on President Trump and executive power appeared first on American Enterprise Institute – AEI.

When George Washington’s Administration proposed to create a national bank, it exploded divisions among Americans—and, more specifically, among Alexander Hamilton and James Madison—about what our Constitution means. The Bank, and the arguments surrounding it, continue to echo today.

To discuss the Bank of the United States, Adam was joined on the podcast by AEI’s own Jay Cost, who has written about Madison’s concerns that the Bank and other federal initiatives would foster corruption and oligarchy. (See especially his recent two-part AEI essay series.) Jay and Adam discuss problems inherent in factionalism, private-public partnerships, established churches—and whether Madison would have ever admitted that Hamilton was right about the Bank.

The Supreme Court, entrusted by the Constitution with “the judicial power,” is said to wield “neither force, nor will, but merely judgment.” To that end, the Constitution gives judges significant independence from political reprisal. Yet the institution as a whole remains part of our political system. The justices are appointed by politicians. Even the number of justices on the Court, set merely by statute and always subject to the possibility of amendment, is preserved only by tradition and political restraint.

How, then, does the independent Court maintain its legitimacy? Can unpopular decisions from a body not democratically elected undermine its ability to maintain its proper role in American governance? Michael Greve, author of a recent essay on judicial “legitimacy” and the current Roberts Court, joins Adam and Tal to work through some of these most challenging issues.

For the 200th anniversary of the Supreme Court’s landmark decision in McCulloch v. Maryland, AEI’s Program on American Citizenship commissioned six distinguished scholars to author essays related to that decision. Gary Schmitt, the editor of the volume, provides an introduction with his essay, “John Marshall and the Politics of McCulloch v. Maryland.” Nelson Lund of George Mason University’s Antonin Scalia Law School offers his criticisms in “The Destructive Legacy of McCulloch v. Maryland.” And finally, Unprecedential’s own Adam White defends Chief Justice Marshall’s decision with “McCulloch v. Maryland and John Marshall’s Judicial Statesmanship.”

All three authors join this special episode of Unprecedential to discuss their views on the landmark case that touched on so many fundamental questions of constitutional governance.

The House of Representatives has resolved to allow members of Congress to vote by proxy. Some members of the House, led by Minority Leader Kevin McCarthy (R-CA) filed a lawsuit challenging the constitutionality of the measure, citing the lack of historical precedent for a measure allowing Representatives to vote from beyond the House.

To discuss the case, and the broader question of how Congress does its constitutional work in times of crisis, we bring you a special two-part episode. Part One features Chuck Cooper and Joel Alicea, two of the lead lawyers arguing against the resolution’s constitutionality. In Part Two we welcome several experts on congressional procedure and precedent: Kevin Kosar, Michael Stern, and James Wallner.

When we talk about “the Founders” of the United States, we often think of the 55 men of the Constitutional Convention in Philadelphia, 1787. We might even think of the great defenders of the Constitution that emerged from the Convention, such as Alexander Hamilton, James Madison, and John Jay. But to understand the Constitutional republic we have, we must listen not just to its supporters but its detractors – known as the Anti-Federalists – lest we run the risk of playing judge while considering only one party’s brief.

Judge Andrew Oldham of the US Court of Appeals for the 5th Circuit is accustomed to giving both sides their due, and as such set out to explore the argument of the Anti-Federalists, in essays collected by the late Herbert Storing in ‘The Complete Anti-Federalist’. Why were they so worried about the Executive Branch? What can they tell us about today’s administrative state? And how should their arguments inform current debates about the Constitution’s original public meaning? Judge Oldham joins Unprecedential to cover all this and more.

In Federalist 37, James Madison conceded that even the best lawmakers cannot write perfectly clear laws. “All written laws,” whether the Constitution or in statutes, “are considered as more or less obscure and equivocal, until their meaning be liquidated and ascertained by a series of particular discussions and adjudications”. These discussions happen not just in courts but in the course of actual administration.

So, when a law’s original meaning is not clear, its ambiguities can be resolved — “liquidated” — by the people themselves, through the settlement of precedents set by judges and statesmen alike. To discuss this underappreciated part of republican self-government, and its relation to more familiar notions of judicial stare decisis, Adam welcomes William Baude of the University of Chicago, author of two recent articles on these subjects.

Today the Electoral College operates mostly like an algorithm, automatically converting popular votes into electoral ones. But the Constitution originally created the Electoral College to be a fourth institution in federal government. Elected and assembled every four years, this body would deliberate and elect the next President of the United States. Nearly 30 years ago, AEI published a collection of essays on the College: “After the People Vote,” edited by the late Walter Berns.

For years, some activists have called for the Electoral College to be abolished and replaced with a single national popular vote, while others ask how much power the states or Congress can assert over the votes of the College’s individual members. The latter question now arrives at the Supreme Court, in a pair of cases to be argued on May 13. Those cases center on questions of the respective powers of Congress, the states, and the electors themselves. To discuss them, Unprecedential welcomes Professor Derek Muller, an expert on the law of American democracy.

Many Americans have been thrust into a period of unprecedented solitude. That can be daunting and lonely – but solitude can also be an opportunity for working on inner strength, balance, and fortitude. It can even be a time to write your most challenging opinions for the US Court of Appeals for the 6th Circuit.

That is, if you are Judge Ray Kethledge, who joins the podcast to discuss the lessons of his 2017 book, Lead Yourself First. He and Adam discuss how we can learn from models of thoughtful solitude, from Helmand Province, Afghanistan, to Lake Huron, Michigan and from Lincoln to Lawrence of Arabia. They also cover, you know, judge stuff: Whether statutes are ambiguous as they seem, the real meaning of the rule of law, and whether FA Hayek was right about the 9th Amendment.

Article III of the US Constitution vests “the judicial power” in the Supreme Court and the lower federal courts. How that power should be exercised — and when it has been exercised throughout our country’s history — are questions still fiercely debated today. May courts legitimately exercise “judicial review,” the power to say conclusively what the law is? Or is this notion actually foreign to what the framers of the Constitution had in mind for the judiciary?

Keith Whittington of Princeton University, author of “Repugnant Laws,” a recent book on the surprisingly misunderstood history of judicial review, joins the show to explain what “the Judicial power” has meant to Americans from the founding to the present. He and Adam then venture far afield in legal nerdery while Tal sits in the corner and quietly grits his teeth, remembering the subpar grade Whittington gave his senior thesis.

The Supreme Court was set to have a busy spring, with a full docket of cases and a schedule packed with oral arguments. But like so many American institutions, even the Highest Court in the Land had to pause business-as-usual thanks to the COVID-19 pandemic. So what happens now?

Joining us to discuss these questions, and the Court’s role in the upcoming election season, is Amy Howe, a cofounder of SCOTUSblog and one of the leading reporters covering the Supreme Court (and a former Supreme Court lawyer herself). She helps us try to understand how the Supreme Court and its Justices may adapt — or not — to our nearly unprecedented circumstances. Is this going to change the operations of the Court forever? That’s up for debate; you be the judge.

How often does the Supreme Court declare laws unconstitutional? What does this say about the Court’s place in American politics? These are timeless questions, of course, but Princeton University’s Keith Whittington sheds significant new light on them in his latest book. Drawing from Whittington’s comprehensive database of cases, Repugnant Laws: Judicial Review of Acts of Congress from the Founding to the Present examines how judges have used their power throughout American history, and it upends conventional wisdom in the process.

Enjoy this special episode of Unprecedential, featuring Whittington’s presentation of his book at AEI, his conversation with Adam White, and some sharp audience Q&A.

When disaster strikes — a public health crisis, natural disaster, or terrorist attack — the executive branch is the first to respond. Our Constitution empowers the president to respond quickly to threats, allowing the other parts of government to get their footing. But crafting an energetic response is no easy task when it requires not just coordinating the White House’s own team, but also the rest of the executive branch.

Two of AEI’s research directors know this firsthand. Kori Schake, AEI’s director of Foreign and Defense Policy, served on the White House’s National Security Council and in the State Department after 9/11; Ryan Streeter, AEI’s director of Domestic Policy, served on the White House’s Domestic Policy Council during Hurricane Katrina. They join Adam to discuss some of the near-impossible challenges of coordinating responses to disaster: How are responsibilities delegated? What kind of legal considerations come into play? How does the federal government remain cognizant of state needs during national emergencies? And much more.

When crisis engulfs the nation, how should the federal government — especially the president — respond? Of course, when crisis strikes, the best response is for everyone — government and citizens alike — to have prepared in advance. But when “unknown knowns” suddenly appear and shake our sense of normalcy, we look to the president and his administration to respond.

Our guest, Tevi Troy, knows this well. He has served at the highest levels of government in the White House and the US Department of Health and Human Services, and has studied the White House from a historian’s perspective — most recently in “Fight House,” his account of White House rivalries. Perhaps most relevantly, though, is “Shall We Wake the President?” (2016), his account of presidential crisis management through American history. Seeing as he predicted the coronavirus pandemic in that 2016 book, he seemed to be the right oracle to discuss disaster management within and across the various arms of government.

That’s “republican” with a lowercase “r” — the set of structures and characteristics that together form a free people governing themselves through representative bodies and the rule of law.

In a special guest-less episode, Adam expands on a recent essay in which he argues that our republic’s constitutional structure depends upon the character of its public servants and its citizens.

Only a few select lawyers get to argue before the Supreme Court. But even fewer are personally appointed by a Supreme Court Justice to do so. Deepak Gupta is one such attorney, and is no stranger to unusual or uncharted territory. Before launching his own firm in 2012, Deepak helped start the Consumer Financial Protection Bureau as senior counsel for litigation.

After discussing life as a Supreme Court advocate, Adam and Deepak descend into wonkery about regulation, the administrative state, and whether various agency structures might be considered constitutional. Sure, Adam once tried to sue the CFPB into oblivion — but what’s a little constitutional litigation among friends?

What is an institution? How can we learn to see institutions more clearly in our daily lives? Yuval Levin, director of AEI’s Social, Cultural, and Constitutional Studies department, editor of National Affairs, and author of the new book “A Time to Build” on restoring American institutions, joins the show to discuss the structures of American associational life.

Adam asks him about the challenge of upholding existing institutions and how American citizens should think of themselves as parties to the institution that is the Constitution. Meanwhile, Yuval’s ability to speak in full paragraphs amazes and delights the audience.