Category: 3-LawSometimeCommentary

Divided Argument is live from Stanford Law School, hosted by the Stanford Constitutional Law Center! We review an unusual summary reversal in a capital habeas case and the latest universal injunction developments, and discuss some of the implications of the change in administration. After that, we are joined by a very special guest to discuss the recent arguments in the excessive force case of Barnes v. Felix.

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

OA1118 and T3BE56 - Russell Vought lied in his confirmation hearing, but who is Vought and why should we care? Lydia gets us up to speed on this capital-d Doozy, with his background, some highlights from his confirmation hearing, and the great reporting that lets us confidently state that he lied in his hearing with the Senate Budget Committee.

Then Heather Varanini joins for the answer to T3BE question 55 and brand new question 56!

• Who Is Russell Vought? Probably the Most Important Person in Trump 2.0., New York Times Opinion

• “Put Them in Trauma”: Inside a Key MAGA Leader’s Plans for a New Trump Agenda, ProPublica

• Undercover in Project 2025, Centre for Climate Reporting

If you'd like to play along with T3BE, here's what to do: hop on Bluesky, follow Openargs, find the post that has this episode, and quote it with your answer! Or, go to our Subreddit and look for the appropriate t3BE posting. Or best of all, become a patron at patreon.com/law and play there!

Amicus is coming to you with an extra episode because of the five-alarm threat to the balance of power in the wake of Monday and Tuesday’s memos from the White House Office of Management and Budget freezing vast tranches of federal funding. As agencies, states, and nonprofits scramble to figure out if they can make payroll or even keep the lights on, a hugely significant legal battle is brewing over what, if any, actual restraint remains on this administration’s vision of presidential power. Dahlia Lithwick is joined by Professor Stephen Vladeck of Georgetown University Law Center to understand the ramifications of a flimsy memo that threatens the very structure of government as we know it in the United States. 

The Impoundment Crisis of 2025 - by Steve Vladeck

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Post-inauguration, the Trump administration is wasting no time issuing a flurry of heinous executive orders. Melissa, Kate, and Leah walk through them and then take a look at last week’s SCOTUS arguments. Finally, they answer some listener questions about the Court’s TikTok decision and share some rare but real good Supreme Court news. 

Here’s the DEI explainer from the Meltzer Center on Diversity, Inclusion, and Belonging at NYU Law. 

Get tickets for STRICT SCRUTINY LIVE – The Bad Decisions Tour 2025! 

• 6/12 – NYC
• 10/4 – Chicago

Learn more: http://crooked.com/events

Order your copy of Leah's book, Lawless: How the Supreme Court Runs on Conservative Grievance, Fringe Theories, and Bad Vibes

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OA1117 - As Donald Trump’s executive branch nominees continue to work their way through the confirmation process, we welcome Stanford Law professor Anne Joseph O’Connell to learn more about one of the most important legal protections we have against a fully imperial presidency. Professor O’Connell is one of the leading academic experts on the Federal Vacancies Reform Act, the legislation which Trump may or may not have intentionally circumvented in his last term to install acting heads of departments which would otherwise require Senate confirmation, and provides some essential background and context for what we might expect in his second term as his appointments continue to work their way through the confirmation process. Also covered: getting fired by Trump, defending pandas in court, Aileen Cannon and Clarence Thomas’s fringe theory about the unconstitutionality of special counsels, and what Professor O’Connell learned from her time clerking for Ruth Bader Ginsburg. 

• “Actings,” Anne Joseph O’Connell, Columbia Law Review (2020)

• Prof. O’Connell’s Stanford Law bio page

• Bluesky post with Prof. O’Connell’s notice of termination from the Trump administration

Check out the OA Linktree for all the places to go and things to do!

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It’s barely been a week and the torrent of horrible coming from the pens and mouth of President Trump is staggering. Many of the executive orders signed this week focus on immigration, and that is where we have our eyes trained as well. This week, to help us make sense of the whirlwind that threatens to upend the lives of millions of people Dahlia Lithwick talks to Aaron Reichlin-Melnick, Senior Fellow and former policy director at the American Immigration Council, a pro-immigrant nonprofit aiming to defend immigrants through litigation, advocacy, and more. Not all executive orders are created equal, and so Aaron leads us through what’s constitutionally possible, legally probable, and already swinging into action from Trump’s immigration edicts. 

Aaron’s post about Bishop Mariann Edgar-Bunne: https://bsky.app/profile/reichlinmelnick.bsky.social/post/3lgdojbbjvk2y

Amicus’s October episode on the Alien Enemies Act of 1798 with Katherine Yon Ebright, 

American Immigration Council: After Day One: A High-Level Analysis of Trump's First Executive Actions

Want more Amicus? Join Slate Plus to unlock weekly bonus episodes with exclusive legal analysis. Plus, you’ll access ad-free listening across all your favorite Slate podcasts. You can subscribe directly from the Amicus show page on Apple Podcasts and Spotify. Or, visit slate.com/amicusplus to get access wherever you listen.

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OA1116 - We take stock a few days into the second Trump administration to consider the current state of ICE enforcement, Trump’s blatantly unlawful overrule of the recent Supreme Court decision forcing the divestiture of TikTok, and the President’s new venture in cryptocurrency. Finally, today’s footnote honors the efforts of one person who is doing her part to write history as it happens.

• Judge John Coughenour’s injunction against Trump’s executive order on birthright citizenship (1/23/25)

• SCOTUS decision in TikTok v. Garland (1/17/2025)

• “Application of Protecting America from Foreign Adversary Controlled Applications to TikTok,” (1/20/2025) 

• $TRUMP coin price tracker

• “Enforcement Actions At Or Focused on Sensitive Locations” (original ICE “sensitive locations” memo)(10/24/2011)

• Final text of the Laken Riley Act (sent to the President 1/24/25)

• Judge Amy Berman Jackson’s order on DOJ’s motion to dismiss in U.S. v. Gregory Mijares (1/23/25)

Check out the OA Linktree for all the places to go and things to do!

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OA1115 - Matt joins for a special Wednesday to provide an initial review of some of the most notable of the 26 executive orders which Donald Trump signed after his inauguration on Monday. We go beyond the headlines to take a closer look at what is actually in these things, and try to sort the routine bluster from the very real threats. 

• “Undercover in Project 2025,” Center for Climate Reporting (8/15/2024)

• Restoring Names That Honor American Greatness – The White House (1/20/2025)

• Protecting The Meaning And Value Of American Citizenship – The White House (1/20/2025)

• Initial Rescissions Of Harmful Executive Orders And Actions – The White House (1/20/25)

• Restoring Accountability To Policy-Influencing Positions Within the Federal Workforce – The White House (1/20/25)

• Realigning the United States Refugee Admissions Program – The White House (1/20/25)

• Guaranteeing The States Protection Against Invasion – The White House (1/20/25)

• Ending The Weaponization Of The Federal Government – The White House (1/20/25)

Check out the OA Linktree for all the places to go and things to do!

If you’d like to support the show (and lose the ads!), please pledge at patreon.com/law!

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 in constitutional amendments.  And the norm-buster Trump sounded several themes in the inaugural that we highlight.  The speech and what followed were an avalanche of controversy, and perhaps that’s the idea, but we make a start.  CLE credit is available for lawyers and judges from podcast.njsba.com.