con law Flashcards
article 1judges
the bitches of the court system
do small, unimportant shit like reviewing agency decisions.
congress can reduce their salaries and fire them whenever they want.
article 3 judges
district court trial judges
fully separate from all the other branches, so they made their pay untouchable and allowed them to serve until death or retirement.
supreme court cases derive from:
appellate jurisdiction
original jurisdiction
article 3
Allows congress to strip the federal courts of appellate jurisdiction
Congress can restructure lower federal courts
They can consolidate jurisdictions, change the scope of what federal courts can hear (they could even eliminate diversity jurisdiction or limit appeals altogether for certain types of cases if they wanted).
When the bar exam asks a weird question about congress changing some shit with the lower federal courts, the answer will always be that it is allowed and this power is derived from article 3 (the judicial vesting clause)
Congress does something weird involving lower federal courts = that’s allowed
Why? Article 3.
original jursidction
simply means that the court has the authority to hear a case right when it starts rather than on appeal.
the supreme court has _ and _ jurisdiction over cases between two states
original and exclusive
scotus has original but not exclusive jurisdiction over
PACS-man
public ministries
ambasadors
consuls
cases where one state is a party
can congress enlarge or mess with the original jurisdiction of SCOTUS?
no
the original jurisdiction of the supreme court stays the same and CANNOT be messed with
supreme court appellate jurisdiction
Appellate jurisdiction just means that some courts have power to review and modify the decision of a lower court.
Cases can come through appeal by RIGHT or appeal by WRIT of certiorari (discretionary appeal that judges have to agree to hear)
Congress can mess with (enlarge or restrict) the supreme court’s appellate jurisdiction
what else can congress change about the supreme court?
- the size of the supreme court
- change the qualifications to become a supreme court justice
- control the funding of the supreme court
11th amendment
we don’t want citizens suing a state in federal court
because we want to limit the almighty power of the feds and separate the jurisidiction of the state courts and federal courts.
called federalism
who can citizens not sue
- their own state in federal court
- another state in federal court
- state officials in their official (not private) capacity in federal court.
notes:
* 11th amendment does not apply to city or town officals, only state officials.
* a citizen of illinois could sue the state of indiana in illinois STATE court.
11th amendment exceptions
waiver - a state can consent to being sued by citizens in federal court
federal government sues a state in federal court
this is allowed
federal government runs shit - ever heard of the supremacy clause?
they can bring that weak ass state government into federal court whenever they want
congress abrogating a states immunity
Sometimes, when a state is fucking with their citizen’s civil rights… daddy Federal Government will step in.
Congress can authorize suits and damages against states in Federal Court under the
* 13th (slavery),
* 14th (equal protection under the laws and civil rights), and
* 15th Amendments (cannot prevent voting based on race)
If a state violates the 13th, 14th, or 15th… they are now about to be sued in Federal court.
two states at war in federal court
Two states may sue each other in federal court so long as one state isn’t “secretly” bringing their suit on behalf of their citizens
suits against state officers - ex parte young
The court decided that a state citizen could only sue state officials if they were acting outside of their legal authority and violating federal law…. and they could only sue them to enjoin them from violating federal law (i.e. only for an INJUNCTION to stop them violating the federal law and not money damages)
why can’t you sue a state official in federal court for money damages?
Because you have to understand my Goats, suing a state official in federal court for money damages… which would be paid by none other than THE STATE… would be no different from suing the STATE itself lmao.
when can you sue a state official for money?
when you sue a state official in their personal capacity
Suing a state official for money out of THEIR own pockets because they HIT YOUR CAR = THIS IS FINE.
Suing a state senator and wanting retroactive money damages from the STATE COFFERS (yes I just said coffers) = THIS IS NOT FINE.
You get it. Because when the state official themselves pay for something they did… it isn’t like the federal courts are bossing around the State treasury.
It’s just a weirdo paying for his car accident.
overall - so when can a someone sue a state in federal court?
- State waives their right to be sued
- Congress abrogates because a state was fucking around with civil rights
- Federal government sues state in federal court
- You can sue a state official for injunctive relief if they are acting OUTSIDE the scope of their authority by violating federal law OR in their personal capacity if they hit your car or something.
justiciability doctrine
meant to ensure that courts deal with actual, real and concrete issues. not theoretical political issues.
courts only hear true CASES or CONTROVERSIES
how to satisfy a case or controversy requirement
a plaintiff must have a sufficient interest in the dispute.
plaintiff must show that they
1) have been injured or
2) they will be injured soon.
general rule suing as a taxpayer
The general rule is that you cannot be suing ONLY as a taxpayer or a citizen who is interested in the government following the law
Flat v Cohen held that a taxpayer has standing to sue the government to prevent an unconstitutional use of taxpayer funds.
Exception kind of revolves around religion / establishment clause
You can’t just be a narc and bring random lawsuits that you weren’t even a part of … mind your own business.
Ex. Johnny sued Lockheed Martin because they created bombs with his tax dollars and he’s mad about it.
or
Karen sued the government to release the budget of the FBI because she was schizo
Sorry Karen and Johnny… it’s not going to happen. You aren’t part of this. Go find some friends.
You can’t sue because congress narrowed the Arapawa Endangered Goat enclosure under the Endangered Species Act based on a potential trip you might have taken to see these beautiful creatures
YOU HAVE TO HAVE BOOKED THE TRIP NOW
TO SUE YOU NEED AN INJURY OR A VERY LIKELY FUTURE INJURY
what do you need when you are seeking injunctive relief?
If you are seeking injunctive relief you must show a likelihood of future harm… and your case for standing will be strongest if you are alleging likelihood of future monetary harm.
you also need redressability and causation
the plaintiff must actually show that the defendant caused the injury, so that a court decision will actually resolve the injury
third party standing
a plaintiff generally can’t assert claims on behalf of people that are NOT before the court.
exceptions:
1. close relationship between plaintiff and injured party
2. injured party is unlikely to assert their own rights
3. assignee of a contract can sue even if the money will go to the assignor
4. organizational standing
is it ripe?
The plaintiff is not entitled to a review of a statute or regulation before its enforcement unless they will suffer some IMMEDIATE HARM or IMMEDIATE THREAT OF HARM
The facts must have matured into an existing controversy that warrants judicial intervention. If the injury hasn’t occurred yet, or if the harm is speculative, or perhaps if the facts have not DEVELOPED enough for litigation to commence… sorry goat this shit just simply isn’t ripe.
if you want to bring suit even though your case hasn’t fully ripened,
you have to show that you will face extreme hardship without pre-enforcement review of the statute/regulation/action being taken against you.
is it moot?
we are talking about the requirement that there need to be an ongoing injury or there won’t be a case or controversy in front of the court.
no ongoing injury = case is moot = doesn’t matter = donezo
4 mootness things
1. voluntary cessation
If defendant just stops doing the shit, but he could continue doing it any time, it won’t be moot
- Class actions won’t be dismissible for mootness so long as one member of the class still has an ongoing injury
3. a wrong capaple of repetition but evading review
this wrong only comes into play when the
challenged action only lasts a short time and it can’t be fully litigated prior to its logical end and
the complaining party will likely get hit with the same injury again.
4. if there are still collateral consequences at play, the case is NOT moot
So if you get convicted of a sex crime for example… but want to challenge your status as a sex offender…. yea you’ve already been convicted…. but it’s not necessarily moot because there is smaller shit we still need to deal with.
political question doctrine
Certain constitutional violations… the federal courts simply won’t fuck with because they are better left to a political branch or just inherently incapable of being resolved by the courts.
ex. challenges to a presidents foreign policy (how are they supposed to decide if we recognize Bosnia as our ally??)
challenges to the removal and impeachment process (this won’t be decided by courts either, congress controls this.
The courts can only decide what an apostrophe means in some oldass meaningless statute, not some high level war shit.
racial gerrymandering - political question?
No
Racial gerrymandering issues actually CAN be decided by the courts
(this is when politicians split up the map so voters of one race are all grouped together to dilute their votes). This can be in the form of “packing” (i.e. placing all black voters into one district for example) or “cracking” (i.e. evenly distributing out black voters so they are a minority in every single jurisdiction)
Racial gerrymandering is illegal and can definitely be decided by the courts.
The reason it is not a political question is because it is clear cut racial discrimination which the court has strong standards in place to resolve.
political gerrymandering - political question?
pretty much.
(dividing up the map based on the political affiliation of certain populations to gain a voting advantage)… well… it’s kind of hard for the court to develop standards to judge or regulate this.
Judge’s need strong manageable standards to make decisions, they can’t guess.
We don’t want to lead courts into the political forest and have them get lost in the trees like the little baby deer that they are.
This is better handled by the legislative branches.
something that might look non-justiciable, but actually is indeed justiciable
They have tested production of presidential documents before (this has clear judicial standards so… it works. The court can make rulings on this because they can interpret the statutes around presidents giving up sensitive documents. Anybody remember Watergate?)
They have tested arbitrary exclusion of a congressional delegate from congress before too (apparently there are judicial standards for this shit too, but I’m too lazy to look them up)
The court is allowed to rule on challenges to vote recounts as well! And they have.
the validity of a federal statute
The problem will be like “Haha so can the Supreme Court decide an issue regarding the Russia/Ukraine war? Obviously not right, it’s a political question! Just pick political question and move on.
But oh yea… there was a federal statute related to trade embargoes saying that aid given to Ukraine would be taxed through the Federal Tax Embargo statute… don’t worry about that but… could the Supreme Court Rule on that maybe?”
The supreme court fucking love statutes
It’s all they think about.
The MBE will try and trick you and act like it’s a non-justiciable question because it deals with foreign affairs… but statutes ARE justiciable.
Statutes are the MOST JUSTICIABLE THING I CAN THINK OF
THE SUPREME COURT CAN RULE ON FEDERAL STATUTES
THEY LOVE FEDERAL STATUTES, EVEN ONES RELATED TO WAR AND FOREIGN AFFAIRS
You get the picture. So in summary… think long and hard to yourself on the test… think about whether the court has standards to deal with something… or whether they do not
abstention - colorado river doctrine
Abstention just refers to a principle that says federal courts shouldn’t interfere in certain cases which involve state law issues.
They have tested some dumb shit called the Colorado River Doctrine before…
But yes, the doctrine actually exists and basically says a federal court should dismiss a federal case if there is an identical state case happening to promote judicial efficiency.
So if someone files a federal AND state law challenge to the SAME exact thing… the federal courts will ABSTENT themselves from hearing it.
pullman abstention doctrine
Basically, the federal courts want to respect the independence of state courts
So if there is a state law case which has an unresolved STATE law issue and a federal issue at the same time… BUT….
A resolution of the STATE LAW issue would eliminate the need for the federal court to decide the FEDERAL issue… well… federal courts should abstain from hearing the case and let state courts do their thing
difference between colorado river and pullman abstention
So the Colorado River Abstention doctrine is about concurrent jurisdiction and two cases going on at once.
When both a federal court and a state court could hear the case simultaneously, the federal case is delayed or dismissed to allow the state’s to do their thing.
The Pullman Abstention doctrine is about resolving unclear issues of state law first in a given case before getting to the federal issues.
If the state law issues are resolved, we may not even need the federal analysis.
congress and the supreme court when it comes to the constitution
The supreme court runs that shit
Congress cannot overrule the supreme court by statute.
So let’s say the Supreme Court strikes down a law stating that all houses must be painted mauve, saying it violates the Constitution’s Freedom of Speech clause.
Congress can’t just be like “lol yea… thanks for that SCOTUS but… no” and then ENACT a law two days later being like “All houses STILL must be painted mauve. We run the Constitution.”
Because GUESS WHAT
IT WOULD GO BACK IN FRONT OF THE SUPREME COURT
AND BE OVERRULED AGAIN
AND THEN WE’D BE IN A NEVER ENDING CYCLE OF WAR BETWEEN SCOTUS AND CONGRESS
WE NEED CHECKS AND BALANCES
SCOTUS JONES RUNS SHIT WHEN THE CONSTITUTION IS IN THE PICTURE. THEIR WORD IS LAW.
supreme court’s power to review and potentially reverse state court decisions
the supreme court has the power to review and potentially reverse state court decisions
The Supreme Court will NOT take any appeal that invalidates a statute where the STATE grounds for invalidating that statute are independent from the FEDERAL grounds invalidating that statute
Yes, I know that made no sense.
The first thing my tutee’s always ask is “Goat, what the fuck is the difference between adequate and independent state court grounds?”
Well…
Adequate just means we have a good law.
So if the law is vague, or over-broad, or not proper in this situation… the law would be inadequate
Remember, the Federal government wants to respect the little baby states.
So if a decision is independently supported by state law, there is no need for Daddy Federal Government to step in.
I know I’ve said it before Goats, but I like to think of it like a peanut-butter and jelly sandwich.
The peanut butter is the state grounds
The jelly is the federal grounds
So let’s say I don’t like peanut butter at all.
And then you try and serve me a peanut butter & jelly sandwich.
Just because you added in jelly… doesn’t mean I still don’t like peanut butter.
So if a state Supreme Court decision is decided on both state and federal grounds… well… if we took away the federal grounds, we’d STILL have the state grounds that we didn’t like… and the decision could still independently stand on those grounds.
GOATS IF WE HAVE PEANUT BUTTER AND JELLY…. AND I HATE PEANUT BUTTER… JUST BECAUSE YOU ADDED JELLY DOESN’T MAKE IT OKAY WITH ME.
4 scenarios for supreme court having the power to review and potentially reverse state court decisions
Scenario #1: Peanut Butter & Jelly. If the highest state court decides an issue on BOTH independent state and federal grounds, and the Supreme Court’s reversal of the federal issue will not change the result in the case… it won’t be reviewed by SCOTUS.
SCOTUS actually wants to CHANGE SHIT with their rulings… not issue a bullshit ruling that won’t change anything because it still rests on INDEPENDENT AND ADEQUATE STATE COURT GROUNDS.
Scenario #2: The decision fully rests on independent state court grounds. No federal issues involved.
This is too easy. They definitely can’t review this shit.
Why would SCOTUS want to start harassing Alabama about THEIR OWN interpretation of the Alabama constitution?!? They want no part of it. THEY WON’T REVIEW IF THE DECISION RESTS FULLY ON STATE LAW.
Scenario #3: If it is unclear whether it is based on federal or state law… the Supreme Court may review.
Scenario #4: If the highest state court’s decision is based on state and federal issues which are INTERTWINED… the Supreme Court will REVERSE the state court and remand to the state court for further proceedings.
This is different from #1 when it is based on BOTH independent state and federal grounds… this is when we have a SUPER fusion where they are so fucking intertwined it’s impossible to separate them. Then SCOTUS can remand it.
This has probably happened only like four times in human history but these lunatics apparently want us to be aware of this scenario.
Scenario #3 and #4 they won’t test… but they did back in like 1992 or some shit so I just wanted to kick you all some game in case they tried to blow your mind on F24 (they will try).
how will I know if it rests on adquate and independent state grounds?
they will say it in the problem
They will say something like “the State Supreme Court held that the Constitution of our grand state is clear on this issue… this violates our state law Constitution.”
Sometimes in the fake state Supreme Court opinion quote they will actually say “we do not even need to touch upon the federal law issue, because our state Constitution is clear…”
the constitution sets the ____ for states when it comes to constitutional rights
baseline
But the state itself can set much broader individual rights.
Federal laws protect a baseline right to privacy for example. Things like medical records and consumer credit reports and financial stuff is all private. Unreasonable searches and seizures. You get the deal.
congress - necessary and proper clause
Means that congress can use any means not prohibited by the constitution to carry out their authority
It cannot stand on its own, it must be combined with another power.
Basically, congress just combines the necessary and proper clause with the commerce power and this combination gives them unlimited power.
Will be the wrong answer most of the time lol
Congress used the necessary and proper clause along with the commerce clause to enact things like the affordable care act
We control commerce…. We control healthcare… and we will do whatever is necessary and proper for everyone to get some healthcare.
congress - commerce clause
All about moving money across state lines
Idaho can’t regulate commerce and business issues that go across state lines into other states.
So we need the feds to regulate that.
congress - commerce clause - indian tribes
When they ask you about indian reservations, all you need to know is this:
1) congress can regulate the commerce of indian tribes through the commerce clause and
2) if you’re found not guilty in an indian tribe court you can still be charged federally
The double jeopardy clause isn’t implicated.
The states CANNOT regulate commerce within the tribes themselves
three main aspects of interstate commerce which congress controls
1. The channels of interstate commerce.
There are various places where commerce happens.
* Riverways can be regulated under the commerce clause
* Highways
* Airways
* THE INTERNET
2. The instrumentalities of interstate commerce
The people and things moving interstate commerce
Planes, trains, and automobiles that operate in the channels listed above.
3. Shit that only happens within one state… that has a substantial effect on interstate commerce
But at some point their power expanded like a motherfucker.
They said “oh you’re growing wheat in your backyard? I know it’s only within the state and not interstate commerce and I know the powers not left to the federal government are reserved to the states… but we run this shit. Throw all that fucking wheat out… because if ENOUGH of you fucks grow wheat, it will mess with the national market prices.”
And so next thing you know, Congress could regulate economic stuff that not just moved across state lines… but ANYTHING so long as it had a “substantial effect on interstate commerce.”
Oh you got some wheat in your field you are growing for your family?
Congress is burning your shit down to control the national prices, sorry kid.
what can’t congress control under the commerce clause?
non-econmic activity
There was a certain dandelion which grew only in state A which was used by a group of emo teenagers to get high.
Not a single person in the United States sold this dandelion since it could be grown in 3 minutes and there were three trillion of them.
The dandelion had no secondary market.
Literally nobody on this earth wanted this dandelion besides a group of gothic teenagers trying to smoke it.
Can congress regulate the dandelion?
If something is grown in a state which has NO secondary market and is not sold at all across state lines or within the state (they will have to tell you this lmao)… THIS activity is non-economic and is not controlled by Congress.
State law enforcement should deal with this weird dandelion, not Congress.
Congress can’t get involved in purely local matters which involve NO economic activity!
This is why they don’t get involved with state law enforcement, family law, or state education.
commerce clause steps
1. is it a channel or instrumentality of commerce (planes, trains, rivers, and shit) - congress can regulate
2. is it a non-economic activity? (like bringing a gun to school, a werid ass dandelion, gender motivated violence) - congress can’t regulate
3. is it economic and does it have an aggregate effect on insterstate commerce (everything in the world falls under this category) - congress can regulate
4. can congress compel people to engage in commerce and force them to buy healthcare and shit? - congress can’t but they can give you a tax penalty if you don’t engage in commerce like buying healthcare
taxing and spending power
congress can tax and spend for the general welfare
taxes
Congress can tax to regulate or prohibit behavior so long as it raises revenue.
The tax will be valid if it raises revenue.
The one thing we need to know about taxes is that Congress can’t tax some shit that they can’t regulate directly.
I jokingly refer to this when speaking to other Con Law professors as a disguised regulation tax
Okay we got Daddy Congress trying to do whatever they want. Now on the other side we got the 10th amendment which is basically like “whatever power not directly given to the federal government goes to the states.”
So let’s say we have a violation of a state liquor law (selling liquor without a license). Congress’ crazy ass can’t just come in and tax this lmao. This is left up to the states.
There was this bigass Supreme Court case where Congress tried to tax businesses who violated child labor laws by hiring young kids to work (ONLY THE STATES CAN PUNISH THIS).
So my stupid ass signed onto Oyez to figure out what the courts reasoning was, and this is what I came up with:
Congress can’t do any sneaky shit with their taxes to take away even more power from the states. Leave the fucking states alone.
two types of taxes on the MBE
- direct taxes
- indirect taxes
direct taxes
These are taxes on individuals and corporations from income and profits that are paid DIRECTLY to the government.
The only limitation on direct taxes is that they must be apportioned evenly among states based on population and how rich the state is.
Rarely tested
indirect taxes
These are little secret taxes on goods and services rather than income and profits.
The only limitation here is that they must be applied uniformly in every state.
The MBE loves a scenario where some random good or service gets indirectly taxes, but it’s only money to pay for SOME OTHER SHIT.
Let’s say Congress wants to build a new railroad system in the Midwest. So… they tax every railroad ticket in the United States by 25 extra cents… so now some idiot in Alaska has a more expensive train ticket… even though he’s only being taxed for a train being built in the MIDWEST.
Is this okay?
Well, yes. It is.
So long as the indirect tax is: identical in every state on the goods or services.
Congress cannot tax EXPORTS (things leaving the US)
spending power
Congress can spend money on whatever the fuck they want to so long as it falls under one of their enumerated powers
Enumerated powers = defense, international trade, and commerce.
However, if congress goes too insane, this spending can be challenged by the supreme court.
The MBE is obsessed with the idea of the federal government giving money to states
This is totally fine
But if states want to take the money, they have to do shit that congress wants them to do. The federal government can condition the receiving of federal funds on the states doing certain things.
This isn’t violation of separation of powers… sorry. You want the cash? Daddy federal government can put conditions on it.
Ex. if Alabama wants highway funding, you better enact a drinking age of 21
The conditions they place on the funds must be clear (unambiguous), non-coercive (no gun to the head situations when it comes to the amount of funds withheld), and related to a federal interest.
The states have to know exactly what they are agreeing to, and it can’t be some crazy unconstitutional shit either.
The problem will probably say something like this
Congress, after realizing highway crashes were on the rise, wanted to implement a mandatory seat-belt law. If the states did not enact the law, they would lose 95% of their federal highway funding. Is this allowed?
Hell to the naw naw naw.
That shit is coercive as fuck. 95% of their funding? You may as well tell them they have to build some fucking dirt roads if they don’t adopt your federal law.
In summary, congress can regulate through spending conditions on states, but not tax penalties on states for things outside of their enumerated powers.
war and foreign affairs - congress
congress can:
* raise an army
* declare war
* make treaties
congress enumerated powers
defense, international trade, and commerce.
federal police power
there is not a broad sweeping power for the feds to just roll up and regulate anything they want at the state level
federal police can only regulate 4 things (DILF)
1. DC
2. Indian Reservations
3. Lands ownded by federal government
4. armed forces
congress powers -other
immigtaion
print money and punish counterfeiting
establish post offices
fully controls copyright and patent issuing
14th amendment
The 14th Amendment was enacted after the civil war and basically said “people have rights.”
People should have equal protection of the laws.
People should have due process and not be deprived of life, liberty, or property without fair process. Nobody can take away the privileges and immunities of U.S. citizenship and fundamental rights should be protected.
14th amendment section 5
Who the fuck is going to actually enforce this bullshit?
Who is the Bouncer at the 14th Amendment Constitutional night club?
So the Founders snuck in Section 5 and they said this “we run this fucking shit when it comes to equal protection under the laws. If States want to fuck around with people’s rights… it is over for them and we are stepping in to take care of things”
So they wrote this into the 14th Amendment:
“Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.”
remedy under section 5 of the 14th amendment
lets daddy congress fix shit when states r fucking around w civil rights
Congress said “no you can’t have a literacy test Alabama. But also… we are now requiring every state to run every single change in their voting procedure by the Federal government beforehand. And you know what… all voting material must be in 47 different languages, including dead languages like Latin and Ancient Greek.”
Okay… now these fuckers have gone too far.
There was this case in law school that nobody read called City of Boerne v. Flores which said the remedy under section 5 of the 14th must be congruent and proportional.
In this previous example the remedy would not be proportional because the remedy is insanely severe. Every state in the United States running every single thing by the Feds? wtf.
47 different languages?!
The remedy would also not be congruent because it takes an isolated problem in Alabama and then addresses it by forcing every state in the nation to adopt weird ass procedures and excessive language pamphlets. If Alabama is the problem, target Alabama.
And do it to directly remedy the violation. Not add new weirdass laws and shit.
What I’m trying to say is this: Section 5 lets Daddy Congress fix shit when states are fucking around with civil rights. It doesn’t let them use it as a vehicle to add in a bunch of weird shit or freestyle create new laws to take over the states lmao.
CONGRUENT AND PROPORTIONAL
IF YOU SEE THOSE TWO WORDS IN THE ANSWER CHOICES… IT’S THE RIGHT DAMN ANSWER.
difference between commerce clause and section 5 of the 14th amendment?
Commerce clause = focused on money
Section 5 = focused on civil rights
They may have a hotel discriminating against people and the hotel will be fully operating within the state.
So you’ll be like hmmm maybe they could make a law about that under section 5 of thebouncer provision just like the goat said.
WRONG
Hotels are private entities
Section 5 bouncer only remedies action by the government
Hotels = money = commerce = affect on interstate commerce
congress controls the power of the purse
If congress appropriates money for some shit
The president can’t unilaterally overrule it.
President has to spend the money the way they appropriated it.
the presidents powers
- executive agencies
- immunity from civil lawsuits for money damages
- executive privilege
4. power to pardon - take care clause
6. commander in chief - treaty power and foreign affairs power
8. exectuvie orders / agreements
9. appointment power - removal power
11. veto
president power - executive agencies
The president controls the executive agencies
However, congress can enact laws which limit the president’s ability to boss around the agencies.
president power - immunity from civil lawsuits for money damages while in office
However, the president does NOT have immunity as a result of actions PRIOR to his presidency and he can be sued for those actions in congress.
The president is NOT immune from CRIMINAL prosecution either.. But impeachment comes first, so that will bar any prosecution until after the president is removed from office.
president power - executive privilege
The president’s conversations and documents exchanged between him and his high level advisers are privileged.
Except if the president is committing some crazy ass crimes (like Nixon).
If it is the subject of a crime, private papers can always be subpoenaed.
president power - pardoning
The President can pardon those who are convicted of FEDERAL crimes only!
The President can only pardon CRIMINAL crimes, not civil crimes.
The President can’t pardon for impeachment though lmao, or the crime underlying impeachment.
Goat tip: they sometimes test Congress trying to LIMIT the pardon power.. Nope. Congress can’t do shit when it comes to pardons, this is for Mr. President only.
president power - take care clause
President has the power to ensure that the laws are “faithfully executed” this is called the take care clause
Essentially the president has to make sure his little agencies carry out the laws but the reality is… resources are limited.
So in spaces like immigration the president might elect to only go after deportations for those who have committed serious felonies for example.
He’s carrying out the laws, but he can decide in what way they are carried out.
However my Goats, remember… if Congress specifically appropriates money for a certain thing…. the President cannot refuse to spend them because he has to make sure the laws are faithfully executed. This is all part of the Take Care clause.
Otherwise, he can choose not to spend money if he doesn’t want to.
president power - commander in chief
The president is the commander-in-chief, so he can take some military actions without Congress.
When troops are moving abroad in foreign countries he has a lot of agency to move them around and shit.
Remember, the President can’t DECLARE war… but he can definitely act quickly to repel a sudden attack
If a country fired 300 nuclear missiles at the United States all at once the President would have roughly 45 minutes to decide whether to kill a billion people in response and it would all be up to him alone in his room at the White House.
And we thought we had pressure because we needed to answer the interrogatories for our boss by Monday.
The president can detain enemy combatants DOMESTICALLY as well… but remember… he has to give them due process. We can’t have some wild ass Guantanamo Bay shit happening.
If war powers comes up on the test… the answer will likely be that it is a political question… the president runs this shit. It is not for the courts, since they aren’t even privy to the strategical information needed to decide issues around war.
The President’s main limitation with the war power is that he can’t declare war all on his own.
president power - treaties
A treaty is an international agreement between the United States and a foreign country that is NEGOTIATED by Daddy President with the advice and consent of the Senate.
Write this shit down: treaties need to be RATIFIED by 2/3 approval vote of the senate. The House of Representatives doesn’t have shit to do with treaties, so it’s only the Senate and the President.
self executing treatie vs non-self executing treaties.
Let’s talk self-executing treaties vs. non-self executing treaties.
Self-executing treaty: Instantly becomes law, you don’t have to do any additional legal shit.
Non self-executing treaty: You have to do additional legal shit for it to become a law.
Okay so the only difference is that self-executing treaties just become law immediately
But let’s talk about what they will really test: what is the priority of these fucking things?
priority of treaty things
- constitution
- self executing treaty AND federal law (whatever was adopted last wins)
- US state law
- Non seelf executing treaty
