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 executive theory. How did a change of party in the White House lead to tension with an unpredictable, even rash, president? The answers will surprise you, and may be further explored in briefs in the Supreme Court case that is sure to come before long. CLE credit is available for lawyers and judges from podcast.njsba.com.

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, which is so heavily relied upon by proponents of the unitary executive. History, text, structure - all come together in a lively debate.

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 profound implications for many of the more controversial actions of the new administration. All in all, it adds up to something you don’t see that often these days: a prominent conservative and a scholar often on the side of the Democrats having civil discussion and finding common ground as well as principled disagreement. Professor Calabresi speaks for himself in this podcast, and not on behalf of the Federalist Society. CLE credit is available for lawyers and judges at podcast.njsba.com.