Stanford Legal

Stanford’s Anne Joseph O’Connell examines who can step in when a top federal position is vacant and what recent court decisions could mean for how those positions are filled.

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When a top federal position is vacant, someone still has to run the office. But who gets to step in, and what powers can they exercise while the position remains unfilled? Those questions are at the center of recent legal disputes over how the federal government operates when permanent officials are not yet in place.

In this episode, Stanford Law School Professor Anne Joseph O’Connell, a leading scholar of administrative law and the federal bureaucracy, joins host Professor Pam Karlan to discuss the rules governing temporary officials and the way federal agencies are organized and staffed.

O’Connell and Karlan examine recent disputes over U.S. attorneys and what happens when the usual process for putting a permanent leader in place does not happen quickly. They discuss how courts have interpreted the rules for temporary officials and what those decisions could mean for other federal agencies and future administrations. The conversation also considers how much authority the president has over the people who work for him and where the law draws the line.

Links:

Anne Joseph O'Connell >>> Stanford Law School page

Pulte’s Appointment Shows Flaws in the Vacancies Act >>> Stanford Law School page

Appeals Court Rejects Trump’s Strategy of Picking U.S. Attorneys >>> Stanford Law School page

Can the President Appoint Principal Officers Without the Senate? >>> Lawfare page

Bureaucracy’s Boundaries >>> Lawfare page

Connect:

Episode Transcripts >>> Stanford Legal Podcast Website

Stanford Legal Podcast >>> LinkedIn Page

Rich Ford >>> Twitter/X

Pam Karlan >>> Stanford Law School Page

Diego Zambrano >>> Stanford Law School Page

Stanford Law School >>> Twitter/X

Stanford Lawyer Magazine >>> Twitter/X



(00:00:00) Welcome to Anne Joseph O'Connell

(00:01:32) What "Actings" are, and why they matter

(00:02:53) The U.S. Attorney job, explained

(00:07:09) Three ways to fill a vacant U.S. Attorney seat

(00:11:01) The courts say no to post-vacancy "first assistants"

(00:12:37) Ripple effects across the federal government

(00:14:07) Does this undercut the Unitary Executive?

(00:15:24) A legislative fix, and the delegation workaround

(00:16:31) Circuit courts shut down delegation

(00:18:22) Trump v. Slaughter and the power to fire

(00:19:12) The Librarian of Congress and the Register of Copyrights

(00:22:26) Where's the line on presidential removal power?

(00:27:02) Closing thoughts


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The ACLU’s Anthony Romero unpacks a sweeping docket—from a Supreme Court showdown over birthright citizenship to voting rights and free speech—as the rule of law is tested.

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In a timely conversation about the ACLU’s massive docket of cases, Pam Karlan speaks with Anthony Romero, JD ’90, executive director of the ACLU, about the surge of civil rights and civil liberties battles facing the country right now.

Romero discusses major pieces of litigation spanning immigration, free speech, voting rights, and government accountability. A key focus is the Supreme Court showdown over birthright citizenship, where the Trump administration is attempting to deny citizenship to certain children born in the U.S., a move Romero calls an attack on one of the core promises of the Fourteenth Amendment. They also explore what happens when the government pushes the boundaries of compliance with court rulings and what that means for the rule of law.

Tune in for a compelling conversation about the cases that could help define the next chapter of civil liberties law in the United States.

Links:

Anthony Romero >>> ACLU page

Connect:

Episode Transcripts >>> Stanford Legal Podcast Website

Stanford Legal Podcast >>> LinkedIn Page

Rich Ford >>>  Twitter/X

Pam Karlan >>> Stanford Law School Page

Stanford Law School >>> Twitter/X

Stanford Lawyer Magazine >>> Twitter/X

(00:00) Introduction and ACLU’s Rapidly Expanding Docket

(02:30) Small but Mighty—ACLU vs. Federal Power

(07:00) Inside a Burgeoning Docket

(11:30) Birthright Citizenship at the Supreme Court

(16:00) Enforcement at Scale and the Rule of Law

(21:00): An Inflection Point in Public Sentiment

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The Declaration as a “promissory note”—and what it demands now

In the final discussion of The Declaration at 250 series, Robert P. George, McCormick Professor of Jurisprudence and Director of the James Madison Program in American Ideals and Institutions at Princeton University, argues that the Declaration of Independence should be read in the Lincoln–King tradition: not as proof that the American project was completed in 1776, but as a promissory note that sets enduring standards for justice. He confronts the central tension head-on—slavery alongside the Declaration’s equality claims—contending that the nation’s gravest wrongs were never the result of too much devotion to the Declaration’s ideals, but rather repeated failures to honor them. For George, the Declaration’s moral architecture depends on natural law and natural rights: rights are not gifts from the state, courts, or political majorities, but are grounded in a “more-than-merely human” authority and therefore cannot be legitimately revoked by human power. He then reframes the most familiar triad—life, liberty, and the pursuit of happiness—arguing that “liberty” is freedom for worthy ends (not license) and “happiness” is flourishing and character (not mere pleasure or desire satisfaction), which means the founding principles carry substantive moral content rather than a thin, value-neutral individualism.

Jonathan Gienapp, Professor of History at Stanford University, broadens and complicates this account by bringing the Declaration’s historical context into sharper focus. He emphasizes that the document’s immediate purpose was political: to justify revolution and to define legitimate liberty as non-domination—being governed by laws made with genuine representation and consent rather than by an alien will. Gienapp presses George to connect moral freedom-for-flourishing to political freedom-as-self-government: what changes if we place republicanism and democracy at the center of the Declaration’s promise, alongside natural rights? He also signals that the Declaration did not simply announce shared principles; it generated intense argument almost immediately over what “liberty” and “licentiousness” meant in practice, setting up a long-running contest over whose interpretation truly carried forward the Revolution’s aims.

Connect:

Episode Transcripts >>> Stanford Legal Podcast Website

Stanford Legal Podcast >>> LinkedIn Page

Stanford Constitutional Law Center >> Website

Stanford Law School >>> Twitter/X

Stanford Lawyer Magazine >>> Twitter/X

Chapters:

[00:00:26 – 00:04:40] Chapter 1 — Series finale setup + introducing the speakers

Host Michael McConnell closes out The Declaration at 250 and tees up the theme: the Declaration as a “promissory note,” then introduces Robert P. George and Jonathan Gienapp and frames the conversation as a capstone debate.
[00:04:40 – 00:42:48] Chapter 2 — Robert P. George’s case: natural rights, civic virtue, and “freedom for” flourishing

George argues America’s failures come from infidelity to the Declaration, not devotion to it, and grounds rights in a Creator and natural law. He reframes life, liberty, and the pursuit of happiness as moral claims aimed at virtue, ordered liberty, and human flourishing—not license or pleasure.
[00:43:00 – 00:47:45] Chapter 3 — Jonathan Gienapp’s first question: liberty as non-domination and self-government

Gienapp presses the political meaning of liberty at the founding—freedom as non-domination under representative institutions and consent. He asks how George’s moral account of liberty connects to republican self-rule and the Declaration’s grievance-driven justification for revolution.
[00:47:45 – 01:00:19] Chapter 4 — Jonathan Gienapp’s second and third questions: wealth inequality + early fights over “liberty vs. licentiousness”

Gienapp adds the material foundations of republicanism—property distribution, anti-aristocracy reforms like abolishing primogeniture/entail—and asks how inequality threatens civic virtue and ordered liberty. He then argues the Declaration sparked immediate, bitter disputes (Federalists vs. Jeffersonians/Jacksonians) over what counted as true liberty and who “captured the soul” of American democracy.
[01:00:27 – 01:09:09] Chapter 5 — George’s replies: non-domination affirmed, inequality debated, polarization then vs. now

George embraces the non-domination point and explains how founders linked freedom and republican self-government, while suggesting leading founders worried more about forced leveling than wealth gaps. He reflects on early partisan conflict but argues today’s divide is deeper because Americans no longer share a common moral vocabulary or civic framework.

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Former state solicitors general Michael Mongan and Kevin Gallagher discuss the evolving role of state solicitors general and how states work together to shape legal battles before the Supreme Court.

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When states go to court, the battles are not always divided along party lines. State solicitors general often work across state lines to defend shared interests, coordinate legal strategy, and help shape cases before the U.S. Supreme Court.

In this episode, former California Solicitor General Michael Mongan, JD '06 (BA '01), and former Virginia Solicitor General Kevin Gallagher, now partners at WilmerHale, join podcast host Professor Pam Karlan to discuss how the role of state solicitors general has evolved. They discuss multistate litigation, bipartisan coalitions, and how states can work together when their legal interests align. Mongan explains that bipartisan cooperation often happens when “they share sovereign interests as states and those interests are genuinely threatened.”

Michael Mongan  >>> WilmerHale Page

Kevin Gallagher  >>>  WilmerHale Page

Connect:

Episode Transcripts >>> Stanford Legal Podcast Website

Stanford Legal Podcast >>> LinkedIn Page

Rich Ford >>> Twitter/X

Pam Karlan >>> Stanford Law School Page

Stanford Law School >>> Twitter/X

Stanford Lawyer Magazine >>> Twitter/X

Chapters

00:00 Introduction

03:03 What does a State Solicitor General actually do? 

04:24 Independence from the Governor 

06:10 Who speaks for the state? 

09:22 How Virginia united every state 

12:44 Where red and blue states actually agree 

15:12 The mechanics of building a multistate coalition 

17:06 Avoiding duplicate briefs: who writes first? 

19:53 From public service to a state AG private practice 

20:55 Why firms are racing to build state AG expertise 

24:57 Favorite cases

28:44 Closing 

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The real crisis isn’t the Declaration—it’s what we’ve stopped teaching.

Peter Berkowitz, Tad and Dianne Taube Senior Fellow at the Hoover Institution, contends that universities have failed at liberal education—the cultivation of citizens prepared to exercise freedom and responsibility. He attributes the breakdown to politicized classrooms, overreliance on narrow “scientistic” approaches in the social sciences, and a professional culture that trains future scholars instead of educating future citizens—leaving graduates with little serious exposure to the Declaration, the Constitution, and the moral logic of self-government. Stephen Haber, Stanford Professor of Political Science, History, and Economics, presses the discussion toward causes and incentives, setting up a debate about who is responsible for the drift and what reforms could realistically restore civic learning.

Connect:

Episode Transcripts >>> Stanford Legal Podcast Website

Stanford Legal Podcast >>> LinkedIn Page

Stanford Constitutional Law Center >> Website

Stanford Law School >>> Twitter/X

Stanford Lawyer Magazine >>> Twitter/X

Chapters:

[00:00:26 – 00:04:11] Chapter 1: Setting the stakes—The Declaration at 250 and today’s critiques

Michael McConnell frames the episode around renewed skepticism of the Declaration’s natural-rights claims—from progressive critiques focused on slavery and domination to post-liberal arguments against “abstract” rights.
[00:04:11 – 00:06:54] Chapter 2: Berkowitz’s opening—What the Declaration claims and why critics converge

Peter Berkowitz restates the Declaration’s core logic (equality, unalienable rights, consent, and the right to alter/abolish destructive government) and argues that left/right critiques increasingly overlap in their indictment of universal rights.
[00:06:54 – 00:17:47] Chapter 3: Universities and the erosion of liberal education

Berkowitz contends civic understanding is collapsing because colleges no longer ensure a shared, rigorous education in founding principles, constitutional traditions, and the broader intellectual inheritance needed for citizenship.
[00:17:47 – 00:31:00] Chapter 4: From “critical” to “generous” thinking—Mapping the modern critiques

Berkowitz argues that criticism without charitable interpretation becomes a “rage to criticize,” then traces postmodern progressive and post-liberal arguments (including Deneen and Vermeule) that reject the Declaration’s rights framework and flirt with radical alternatives.
[00:31:00 – 01:04:12] Chapter 5: Human rights, diplomacy, and reform—The Commission and a debate about university governance

Berkowitz ties the Declaration to U.S. foreign policy via the UDHR and the Commission on Unalienable Rights, including its aims and controversies; Stephen Haber responds that boards, presidents, and provosts shape campus ideology and that governance-level changes could enable a revival of civic education.

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