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
president power - foreign affairs
The president shares many foreign affairs powers with congress, but he can do some fully on his own, including:
- Deploying troops in foreign countries;
- Making executive agreements;
- Doing foreign negotiations
So Daddy President represents us abroad because Congress takes like two million fucking years to do anything, and we want to speak quickly and with a unified voice.
But remember, Congress controls FOREIGN COMMERCE (anything to do with commerce, you know Congress runs that shit)
The President has the SOLE power to recognize foreign nations (he can choose to not recognize them as well), and Congress can’t override this shit (There was one famous case where the President didn’t want passports to mention a certain country and Congress tried to overrule it and they couldn’t)
president power - executive orders / agreements
These little executive orders and agreements are just when the president can enter into agreements without the consent of the Senate.
executive orders usually deal with domestic policy
executive agreements deal with little agreements between the United States and foreign nations.
There was one recent case where Boeing had a bigass dispute with some French company and there was some crazy tariff war with France.
The President met with the president of France and was like “lol we aren’t doing this anymore” and they signed an executive agreement. Easy.
The agreements have to be based on existing law though, whether federal law or treaties… POTUS can’t just come out of NOWHERE and agree to some crazy shit.
They are like informal cute little ways for the President to run things domestically and abroad so long as the agreements are in line with his enumerated powers or existing law.
The only important thing we need to know… once again… is the priority.
First we have to understand that Congress can overturn an executive order by legislation.
ALSO… they can just choose not to fund it or make it insanely hard for POTUS to carry it out lol.
priority of executive order agreement
- constitution
- federal law
- executive order / agreement
- state law
president power - appointment power
two types of people the president can appoitnt
1. principal officers
The president appoints principal officers with the ADVICE and CONSENT of Senate.
Principal offices are just people without bosses that run shit on their own without being supervised by others.
These are cabinet secretaries, federal judges, ambassadors, the big dogs.
2. inferior officers
People WITH bosses that supervise them and boss them around. Usually the principal officers.
These are heads of departments or officers who work under the principles.
congress doesn’t actually appoint inferior officers, they ______
Congress doesn’t actually appoint inferior officers, they give the appointment power to other people.
They could give it to the president
They could give the power to appointment inferior officers to the heads of departments
They could give it to lower federal courts
CONGRESS CANNOT DO IT THEMSELVES
Ex. congress created a new state agency in A. Congress then appointed 5 members on the board.
WRONG WRONG WRONG.
Congress and appointed should NEVER be in the same sentence.
president power - removal power
The baseline rule is this: Unless removal is prohibited by a certain statute, the President can fire whoever the fuck they want
The President appoints and removes.
Now where does this annoying little bitch Congress fit into the whole scheme of things?
Congress can reserve to OTHER branches the power to remove inferior officers, but they can’t reserve that power for themselves (kind of like with the appointments power)
Basically, the only shit Congress can do is impose limits on what the president can remove an inferior officer for
But it has to be the type of job that… well… we wouldn’t really want the president fucking with
Independent counsel investigating the President? Yea Congress will be able to put a “good cause” limitation on the removal of this job lmao
Inspector generals that investigate fraud… yea… we don’t want the President to remove those without at least giving a statement of reasons to Congress
The head of the SEC? Yea the President can only remove this dude for cause.
Cabinet secretary…. no. They serve at the pleasure of the President and are like his TEAM. Congress can’t limit the firing of them for good cause.
On the test just look at the job and say “is this a job I might not want the President removing if he had a bad day and got pissed off?” … they can apply good cause limitations to those types of jobs, not the President’s inner circle.
So in summary… Congress can’t directly remove.
If a problem says “Congress passed a statute prohibiting the President from removing…”
I want you to literally do this in your seat as you read that:
And laugh
Because you know in your heart that congress cannot fuck with the president’s removal powers.
interbranch relationships - congress and executive branc
The first way Congress fucks with the executive branch is through IMPEACHMENT
The President, the Vice-President, Federal Judges, and every other executive officer of the United States can be impeached for treason and high crimes.
The House actually “impeaches” them… and the Senate tries the case.
Impeachment is always a political question and impeachment doesn’t actually REMOVE a motherfucker from office… it just means there will be a trial in the senate
So to get impeached in the house we need a majority vote. Then to get convicted in the Senate we need a 2/3 vote.
Impeachment isn’t a criminal conviction, it just prevents you from holding office.
the second way congress fucks with the executive branch is APPROPRIATIONS
Congress controls the purse.
Pretty sure I have already said this 400 times, but if Congress says the President needs to spend some money in a certain way… that is how the President is spending it.
However, to even get appropriations in the first place it requires the vote of both houses and a possible veto by the President.
The President has overridden 83 appropriations bills in history, and Congress overrode 12 of those. Kind of a fun fact there my Goats.
The President also can’t just spend funds in the treasury… he needs an appropriation by Congress
third way congress fucks with the executive branch: INVESTIGATIONS
Congress can hold investigations to discover information needed to pass legislation and expose corruption or inadequacies in the executive branch in order to try and correct them
They can also subpoena people to testify and punish people with contempt if they don’t cooperate
interbranch relationships: president checking congress through vetoes
So you thought Congress ran the show?
Wrong.
Mr. President can hit them with a veto anytime he wants.
Legislation by Congress always must be presented to the President… and he can veto that shit.
The President has 10 days to veto legislation once Congress approves it.
If the President does not veto it within 10 days… it becomes law IF CONGRESS IS IN SESSION.
Congress can then override the veto with a 2/3rd vote from EACH house (both Congress and Senate)
Let’s say Congress adjourns their little session (AKA THEY ARE NOT IN SESSION)within the 10 days the President gets the bill
He can just keep it in his pocket and not do shit with it… and it will not become a law
He doesn’t even have to veto it
I call it: a pocket veto.
Okay let’s talk line-item vetoes
If the President gets a bill, he has to approve or veto the WHOLE BILL.
He can’t just cross certain sections out to make a crazy Frankenstein bill lmao
Crossing out single lines in a bill is called an unconstitutional line-item veto
non-delegation doctrine (congress)
Congress can delegate their powers to the executive branch
Congress CAN NOT give away
1. Making laws
2. Declaring war
3. Impeaching people
Congress CAN give away
Their rule making authority as long as they give them a “clear and intelligible principle” to work with… code word for a clear statement describing what kind of power they are slinging around.
Clear and intelligible principle has to say
1. What agency is getting a little slice of congress rule-making power
2. The scoop of the power to be given
3. The policy congress seeks to advance by giving their power to the agency.
Ex. If Congress wanted to make sure people didn’t fish too many shrimp… they’d release a statute saying:
“The Fish Agency shall prosecute and punish all those who fish more than 300 shrimp per day and reduce the over-fishing of the Shrimp population to the MAXIMUM extent possible in order to restore the ecosystem of Franklin Ocean. All those found in violation of the law shall receive a $1 million dollar fine.”
Congress is basically like “we don’t want to spend all fucking day in session talking about some weirdass rule about cutting down trees to prevent forest fires… so we’ll set up a Forest Agency.
Oh we need clean air? EPA.
We need to protect fish? Fish Agency.
And we’ll just let them make rules and regulations (laws in disguise lmao) by giving them our law-making superpowers
Congress can also give power to the judiciary to appoint special prosecutors to investigate the president and shit like that.
Just remember
congress
CAN NOT APPOINT
They CAN NOT remove
But they can delegate some of their stupid powers to make rules because they are lazy.
legislative vetoes
we need bicameralism and presentment
Bicameralism - we have to approve the bill in the house AND senate
Presentment - we have to present the bill to the president
judicial immunity
Judges have absolute immunity for any decisions made in their official capacity as a judge.
legislative immunity - speech and debate clause
Okay so the Speech and Debate Clause IN THE CONSTITUTION says that people in Congress and in the Senate AND their little assistants are IMMUNIZED from criminal and civil liability for statements made ON THE HOUSE/SENATE FLOOR while they are engaged in LEGISLATIVE ACTS (voting on the floor or making speeches on the floor or conducting legislative hearings, etc)
So the MBE will be like “Senator Bernie Sanders was talking shit on the House floor and someone sued him/his assistant for defamation for his speech”
Sorry… not allowed.
The only exceptions to this rule are:
1. It does NOT protect against criminal acts OUTSIDE the scope of legislative duties (such as a Senator accepting a bribe or some shit)
- It also does NOT protect against press releases and saying things to the public OUTSIDE OF THE FLOOR of Congress/the Senate
executive immunity
The president has absolute civil liability when conducting OFFICIAL acts
But no immunity for acts committed in the presidents PRIVATE capacity, or acts BEFORE he became president.
zones 1, 2, and 3 for presidential action
zone 1 - maximum authority: president and congress agree - court apples “strongest presumption” of constitutionality.
zone 2 - authortiy in a zone of twilight
presidet is motivated and ready to go and congress is silent
zone 3 - authority at “lowest ebb”
president wants to do something and congress disagrees - court must “scrutinize with caution”
intergovernmental immunities - taxes
The state cannot tax the federal government without the consent of congress
federal property and lands are also immune from state taxes
federal functions
Basically, states can’t get in the way of the federal government when they are carrying out their duties.
They can’t force a federal contractor to get a state contractor’s license to build on Federal lands for example, or force a federal nuclear power plant to follow the state pollution laws
They can’t force a federal employee who drives around Yellowstone national park in a golf cart to get a state driver’s license
If the states have a law which says nobody can sell gasoline below a certain dollar amount (price controls)… the federal government can link up with a gas company and be like “give us this shit for as low as possible” and they can’t get in trouble.
All these rules would just be… too tiresome for the Feds to deal with.
Goat-Note: States also can’t issue writs of habeas corpus to federal detainee’s. Habeus corpus just means “produce the body”… you file them for constitutional violations and they bring a prisoner in front of the court.
States can’t do this with federal prisoners because of the supremacy clause and because they cannot interfere with the Federal government carrying out their duties unless they are allowed to by statute or given permission to do so.
STAY IN YOUR LANE STATES
federal lands
Congress can buy, purchase, lease, sell, rent, and make all the rules and regulations necessary when it comes to their own federal lands.
They can build buildings and shit on their land
They can rent out the lands
States cannot fuck with the federal lands is what I’m saying
Get off the military bases, the FBI buildings, and the Indian reservations. That’s FED territory son.
Congress can also regulate the wildlife and resources of federal land - they can prevent hunting of moose, that type of thing
10th amendment
The federal government can regulate the states, but if the regulation prevents the states from carrying out their core functions… it violates the 10th Amendment
The whole point of the 10th amendment is this:
We want the states to be allowed to be states. We want them to get out there and be able to play ball with their friends. To find love. To grow old and get married.
We don’t want the federal government fucking with their basic duties in life.
For starters, states cannot be taxed on property or income derived from doing their basic little life functions
EXAMPLE:
If a state has a public school… yea you’re not taxing that shit Mr. Federal government.
A state is running a public park? You’re not taxing that shit Mr. Federal government.
HOWEVER…
If State is involved in some for-profit shit… like running a timber cutting facility or something… oh the Feds are taxing that you best believe.
And yes, there can be a federal income tax on state employee’s. Did I already say that? I’m saying it again.
And REMEMBER, states can be sued by the Federal government or by other states without the state itself giving consent.
when congress cannot directly regulate the states
Congress can directly regulate the states
Ex. Setting federal minimum wage
BUT congress cannot FORCE a state to regulate in a certain way.
The problem will say something like “congress enacted a law which forced the state legislature to enact a law”
DOUBLE ENACT = BAD
This is unlawful commandeering of the state legislature, in full violation of the 10th amendment.
Congress enacting a law which causes the state to enact a law = NOOOOO
This is called commandeering, and it is strictly NOT allowed my goats
You cannot tell a state how to regulate
You cannot force a state to adopt a law
You cannot force a state agency to adopt a regulation
Just. Say. No. To double enact.
Ex. Congress can’t force states to buy equipment for federal post offices.
Congress cannot FORCE states to enact legislation criminalizing firearms possession in certain areas
law of general applicability
The bar exam is obsessed with a situation where the federal government ENACTS a law which applies to everyone, both public and private, called “a law of general applicability”
And it kind of looks like they are commandeering, but then you take a good look at it and you’re like “that shit kind of applies to everyone”
Take the fair labor standards act for example
Sets minimum wage laws, child labor laws, overtime rules, and this applies to both private businesses and the government.
This isn’t a true commandeer since it applies to the state as an EMPLOYER and private companies as EMPLOYERS, not to the state as a REGULATOR.
Same with the family medical leave act
FMLA gives you sick time off of work if your kid is into anime or something like that. The FMLA is a law of general applicability which applies evenly to both public and private entities and it is also not considered an unlawful commandeering.
We can’t FORCE the states or their officials to do shit or carry out our little federal schemes… HOWEVER…. we can have these big-ass broad laws which cover the state as an EMPLOYER and private entities as employers equally.
it is not considered commandeering to induce state compliance to your little federal plan by attaching strings onto the money you give the states.
And the feds can do this, so long as it is not COERCIVE
Congress can put CONDITIONS on the money they give to states so long as these conditions are:
Clearly stated;
Not coercive (they can’t withhold like 99% of a state’s federal funds if they don’t give in to their weird demands lmao); and
Related to the purpose of the program (like demanding states enact a seatbelt law or you will withhold 5% of their highway funds for example). Seatbelts are connected to HIGHWAY funding - there’s a relationship there my goats.
If the conditions on the money goes from an incentive to full-blown compulsion… THIS is when the 10th Amendment is violated and a state becomes commandeered to do something.
The Bar Exam will make it super clear that Congress is going nuts and forcing the states to do something.
They’ll be like “Congress was going to withhold 40% of the healthcare funds for a state unless they opened up puppy hospitals” … this is a violation of 10th Amendment.
Now… withholding 1% of the healthcare funds unless they opened up puppy hospitals? This would be fine
federal government can prohibit state governments from doing certain things
There was one case where a state DMV was about to sell people’s personal information and Congress stepped in and stopped it… this was not a violation of the 10th Amendment
Congress can also preempt a state by setting minimum standards which a state must meet (in areas like pollution or food quality or shit like that)… and this will not violate the 10th.
federal limits on state authority - dormant commerce clause
It stands for the principle that local laws are unconstitutional if they place an undue burden on interstate commerce
Imagine if Indiana said “nobody can sell apples in Indiana that are not grown in Indiana”
Well… now we have a problem.
Now they are fucking with interstate commerce.
Because now we have someone from Illinois who wants to sell their apples in Indiana.
I’ll go as far as saying they SHOULD be able to sell their damn apples in Indiana. BUT THEY CAN’T
FRAGMENTATION OF THE STATES
THE COHESIVENESS OF THE NATIONAL MARKET DESTROYED
I mean basically we want to respect the rights of states to make their own little commerce laws within their borders (well… we don’t really want to respect their rights because the commerce clause just fucks them up at every angle)… but we can’t have them DIRECTLY discriminating against other states.
So we need the dormant commerce clause to step in.
When talking about the dormant commerce clause, the basic question we must ask ourselves is simple,
Does the state law discriminate against out of staters?
two tests for dormant clause
- laws which discriminate against interstate commerce on their FACE
- Pike balancing test
dormant clause test - laws which discriminate against interstate commerce on their face
Let’s say we have a state law that says “every Sea World and Goat Zoo in the state must hire at least 90% in-state residents to work there”
Well… this law clearly discriminates against out-of-staters
It says in the fucking law that it discriminates lmao… this is some clearly discriminatory shit on it’s face
So when it actually says IN THE DAMN LAW that the state is discriminating… the test is going to be STRICT and almost always shot down (it is almost PER se invalid if it discriminates on it’s face)
One of the ONLY times a law has been upheld that discriminated against another state on it’s face was when Illinois had a law that was like “Indiana can’t bring a certain weird type of fish into Illinois to sell because it has a unique disease which kills all of our fish”
Now this law made sense even though it DIRECTLY called out another state.
Otherwise, it will be struck down if it directly calls out another state in the text of the law.
dormant commerce clause test - pike balancing test
Now if the actual law DOESN’T actually talk shit DIRECTLY about discriminating against out-of-state commerce, but it kind of… well… has the effect of discriminating against out-of-state commerce… we have a cute little balancing test which weighs the local benefits against the burdens on interstate commerce.
TWO SCENARIOS:
Scenario #1: Facially discriminatory
The law ITSELF actually says “we are discriminating against other states” lmao… always shut down by the courts…to win the state has to show that the discriminatory law serves (1) a legitimate public purpose and (2) NO reasonable alternative means exist (almost impossible to show)
Example: Only apples grown in Illinois can be sold in Illinois.
Example: All puppies in California must ONLY have their hair cut in California puppy grooming places.
This law is discriminatory on its face.
Let’s use our strict test and look at the two prongs…
(Prong 1) Legitimate public purpose: lmao. What actual purpose could this serve besides helping in-state puppy groomers in California? Helping out your OWN residents make more money is not a legitimate public purpose. Maybe they could say it was for health and safety… if other out-of-state puppy groomers were using dangerous products to groom the puppies fur.
(Prong 2) Could the purpose be served by reasonable nondiscriminatory alternative means? Yes. If their reasoning is that out-of-state puppy groomers are using dangerous products to groom the puppies fur, they could pass a law saying all puppies re-entering the state had to be washed in a puppy bath or the owner would be fined or something.
Scenario #2: The law ITSELF doesn’t really talk about discriminating against other states… but when you look at it a little closer…. it kind of does.
Ex: All apples sold in Illinois must have a special label on them!
Ex: All trucks driving through Illinois must have special tires!
The court will balance out the local benefits and the burdens and see where the scale tips to see if they will shoot this type of “neutral facing” law down.
Ex: In the case of Bibb v. Navajo, Illinois said that all trucks driving on their highways had to put these weird-ass mud flaps on their trucks
But the Supreme court got pissed
Because once they broke out that motherfucking balancing test… the scales didn’t add up:
Increased safety on illinois highways (how tf does a mudflap make things more safe)?? versus the absolute idiocy of forcing every truck driver to stop at the border of illinois and change their mud flaps because of this dumb ass law.
Goat-Note: it doesn’t just have to be a state discriminating against another state either. It can also be towns or cities discriminating against interstate commerce, and that will also be in violation of the dormant commerce clause. If a town says nobody can sell carrots at their stupid farmers market which are grown outside of the town… that implies nobody can sell their fucking carrots outside of the state too.
exceptions to the dormant commerce clause
1. congressional approval exception
Congress can authorize states to do shit that violates the dormant commerce clause
Ex: congress passes a law saying “idaho can only sell apples grown in idaho to in-state idahoans”
It’s fine even though it violates the DCC
2. market participant exception
When the state acts as a business person rather than a regulator and are spending their own money to buy the goods and services rather than fucking with random private companies.. They can discriminate.
exception to market participant: inception exception
Ex: let’s say a state decided it wants to start selling its timber it harvested from state owned lands
So they want to sell the timber to in-state timber purchasers at a reduced rate.
This is fine.
They’re a player in the game, not a regulator.
They are the ones doing business! Selling their OWN state timber at lower prices. Not regulating anyone.
But my Goats… how far does the exception go?
Let’s say they NOW want to say “all timber harvested from OUR state lands… once we sell it to in-state buyers at a discount… it now must be transported by in-state trucking companies and processed by in-state timber processing facilities”
Oh hell no
The state just tried to go from a market participant selling their OWN shit which is fine… to having a manic episode and trying to regulate every downstream part of the timber industry.
YOU CAN SELL YOUR DAMN TIMBER TO YOUR FRIENDS IN THE STATE
But nobody said you can now be amazon supply chain management company when it comes to timber and start controlling who transports, processes, ships it out, cleans the resin off… back up motherfucker.
Now you’re acting more like a REFEREE rather than a player in the game
preemption
Under the supremacy clause, federal law preempts state law.
The federal government is all powerful and will destroy anyone and anything which stands in their path.
And they will destroy the states if they try to fuck with their federal laws with their own bullshit laws.
express preemption
This is just when the federal government literally and explicitly says “do not make any fucking laws in this area”
They did it with federal aviation laws
savings clause exception: Where the federal government will expressly preempt a law or group of laws then allow states to make small state specific laws which would otherwise be preempted for things like safety concerns and niche issues.
implied preemption
If the law doesn’t actually say outright the states are preempted, the court looks at a few things to see if congress MEANT for states to be preempted.
Implied preemption can happen in three ways
- impossibility preemption
- obstacle preemption
- field preemption
implied preemption –> impossibility preemption
(Mutual exclusivity preemption) meaning you can’t comply with BOTH the federal and state law at the same damn time.
Double airbag example
Imagine the federal government mandates that every car have this specific airbag.
But then a state is like “that’s the dumbest fucking airbag of all time, it is only a plastic bag from the grocery store. You specifically are NOT allowed to have that airbag in our state.
In this instance it would be impossible to follow both the state and federal law, so the federal law will win out thru the supremacy clause.
Your ass just got preempted.
implied preemption –> obstacle preemption
If a state law impedes the achievement of a federal objective, we call this “obstacle preemption” on the street.
Sometimes the federal government has a strong purpose in mind, then the state creates a law which fucks up that purpose or makes it even harder to carry out. Not allowed.
I think there was one case where the federal government had a huge road leading to a nuclear site.
Then the state was like “yea we have a law saying you can’t use that road lol”
And the federal government was like “what the fuck are you talking about… this is how we deliver our nuclear core reactor cooling material you little shit.”
So this was a prime example of OBSTACLE preemption… the state law got shot down because the Feds run shit when it comes to establishing nuclear power-plants and if a state law gets in the way of delivering their power plants supplies or their “objective” or “purpose”… sorry but… it’s just not allowed.
implied preemption –> field preemption
There are certain sectors where Congress has legislated so extensively that they just absolutely run shit
Immigration is one of these areas and the classic example
The state of Nevada can’t just start making their own laws relating to immigration lol… or issuing visas or penalizing people in ways that are different from the federal scheme
This would be field preempted instantly
Workplace safety (OSHA), water quality laws (Clean Air & Water Act), Airline Regulations, Patent Regulations, Bankruptcy Regulations… you know the federal government runs this shit and the state’s cannot legislate here.
There should be one question about preemption on the test, and you will get it right… I promise you.
state action
The constitution only applies to state action by the government.
Who can violate the constitution?
The federal government
The state governments
Local governments
Goat note: the bill of rights only applies to the federal government but it got incorporated to the state / local governments thru the due process clause of the 14th amendment. That doesn’t make sense to anyone and it doesn’t need to, but that’s why the state and local governments can violate the constitution too.
Who can’t violate the constitution?
Private citizens
Private companies
exceptions to the state action doctrine
`
- the 13th amendment
- public function exception
- entanglement
exception to state action doctrine: the 13th amendment
The only way a private citizen can violate the Constitution is through violating the 13th Amendment by enslaving someone or putting someone into involuntary servitude.
And remember… Congress can legislate using the commerce clause to stop your racist ass too.
This happened in the famous Heart of Atlanta Motel case.
The Heart of Atlanta Motel was private and run by private citizens and they tried to not rent out to black people.
The government said:
“go fuck yourself. Hotels = commerce. Commerce = interstate commerce. Ohana means family. We run this shit.”
So remember… sometimes private citizens can fuck around and FIND OUT too.
exception to state action: public function exception
Basically it only applies in a narrow weirdass situation where a private company or person… is role-playing as the government.
Example: If Amazon just took over a random town in Arkansas and had their own roads and police force and elections and performed government functions and shit… and they acted completely like the government… but were actually just a private company cosplaying as the government…. they’d be treated as a state actor.
Okay I went down a google rabbit hole - there was some crazy ass town in 1946 in this case called Marsh v. Alabama… and this psychotic evil oil company took over a whole town and started running it
Then this nerdy Jehovas witness guy showed up and tried to pass out his pamphlets in the evil fake town
The leader of the fake oil company town went nuts and kicked him out and didn’t let him pass out his pamphlets
The court said the town had to follow the Constitution because they were performing “traditional and exclusive” government functions.
The Jehovah’s Witness guy was ultimately allowed to pass out his pamphlets
state action doctrine exception: entanglement
A private actor can be considered a state actor if the state is pressuring them to do shit.
But what kind of pressure?
If the state authorizes, encourages, or helps a private actor carry out an unconstitutional activity, the private actor should be considered a state actor.
There was this one case where there was a privately owned restaurant on government property
The restaurant was being racist as fuck and not letting certain people in
They restaurant was considered a state actor by the courts and got sued for a violation of equal protection
It’s more of an argument honestly, you just have to argue whether there was truly enough downward pressure to make the government so hopelessly intertwined that the private party was acting as a state actor.
I talked about this before but I had a case where a police officer forced a nurse to illegally search my unconscious client while he was in a hospital bed.
This was clear state action and the prosecutors office dropped the case.
But remember goats, just because a private company might get a government subsidy, doesn’t mean they are “entangled” with the government.
There has to be way more downward pressure than just a stupid little subsidy or a small amount of governmental regulation on the company.
To be truly entangled, we need more than that.
The test will make it clear if there is some SERIOUS entanglement going on. You won’t have to guess.
procedural due process
The government needs to give you fair process if they want to take your:
* Life (i.e. death penalty, life-sustaining medical treatment, asylum cases where you might be killed if you get sent back to your country)
* Liberty (i.e. civil commitment for both adults and children, extreme injury to reputation that results in loss of employment opportunities); or
* Property (real property, personal property, public education, TENURED public employment, and welfare benefits)
One of my students said “life, liberty, and the pursuit of happiness” I told them that this isn’t a Kid Cudi song, it’s more about property unfortunately
procedural due process - entitlements
Entitlement: this just means you have a reasonable expectation you are going to keep getting some shit you’ve already been getting (welfare, benefits, disability benefits, tenured employment)
So the government can commit a due process violation if they don’t give you your proper procedure before taking away your little entitlements.
How do they figure out the proper procedure to give you? Three part balancing test
1. Can additional procedures discover more facts?
2. Government interest in efficiency
3. Importance of interest to individual.
More important = more procedure.
They weigh all this shit out and determine what level of procedure to give you.
you actually have to get the fucking entitlement before you demand procedural due process on it.
example of “can additional procedures discover more facts” prong of procedural process balancing test
They’ll be like “rainbow brown the lawyer got arrested for stealing $487,000 from his client. He settled a personal injury case and told the client “the case is not good and it is past time to file.” then he took all the money and bought a house with an indoor tree atrium and sushi chef to serve all of his friends sushi around the indoor tree. He was sentenced to 12 years in jail.
Rainbow is now requesting a 4 day hearing before the licensing board takes his law license. What are the best arguments against this?
They are testing the prong: can additional procedures discover more facts?
I mean.. Why the fuck would we need a 4 day hearing in front of the licensing board, if Rainbow HAS ALREADY BEEN FOUND GUILTY IN A FULL BLOWN TRIAL? WE WOULDN’T.
example of “government interest in efficiency” prong of procedural process balancing test
“A tenured professor was illegally selling ACT answer booklets before the test and being paid $10,000 per booklet in Operation Varsity Blues. He had to be fired immediately and have his tenure revoked, otherwise he would do more damage to the school.”
They are testing the prong: government interest in efficiency
Here they are weighing out the government’s interest in SPEED.
They won’t have time to give you a pre-hearing disciplinary interview because they need to move quickly to make sure you STOP GIVING OUT THE DAMN TESTS.
The government’s interest in efficiency will justify giving you LESS procedure and firing you without a hearing, even though you are tenured.
entitlements example
The main thing they want you to know is this: you actually have to get the fucking entitlement before you demand procedural due process on it.
The problem will go like this, “a government set up a subsidy program to give educational subsidies to kids who didn’t read well. Goat was a make a wish foundation kid and applied for the subsidy. He didn’t get it. Goat then brought a claim against the government for taking away his entitlement to the educational subsidy.”
How was goat entitled to a subsidy ???
He apple id and didn’t get it.
It was up to the government whether he got it or not.
The MBE wants you to know that people do not have property interest or entitlements in things THAT THE GOVERNMENT HAS NOT EVEN GIVEN THEM YET.
I can’t be entitled to some shit… the government hasn’t even given me, right?
So the answer will be that NO procedure is owed to them until they actually get the subsidy.
You can’t lose something you don’t have.
And remember: intentional government action is needed to try to invoke due process.
If the government in the form of DCFS or child services is negligent by not responding to reports of a child being beaten for example… you can’t say they deprived you of their due process.
All due process deprivations have to be INTENTIONAL for us to invoke due process.
A final goat note: Sometimes they will have a problem where a Taxi Driver doesn’t want other Taxi Drivers to get licensed by the government or some shit. He’ll be like “you’re violating my property interest to MY license by licensing too many other taxi drivers… I should be free from all competition!”
… what.
you don’t have an ENTITLEMENT to be free of competition. wtf.
Go sign up for Lyft.
substantive due process
Substantive due process is all about whether the government has adequate reason for taking away your most important (fundamental) rights.
fundamental rights
If a right is determined to be “fundamental” and the government wants to get their greasy hands on it, the law will face strict scrutiny.
All other rights? Rational basis
Just look at the problem and think to yourself “is this right fundamental? Okay it’s strict scrutiny. Is it not fundamental? Okay rational basis.
Fundamental rights = strict scrutiny
Non-fundamental rights = rational basis
goat list of non-fundamental rights
1. anything economic (have a job, practice trade, make money)
2. physician assisted suicide
3. right to education (we do have the right to choose our child’s education)
4. right to be a candidate in an election (there was a problem where the filing fees were super high and the guy was too broke to pay them. sorry!)
5. right to foreign travel (it is a right to travel within the states though)
6. abortion
goat list of fundamental rights
- freedom of speech and association
- right to control raising of children
- right to keep your family together
- right to marry
- right to procreate and make love
- right to vote
- right to custody of your children
- right to picket
- right to refuse medical treatment
- freedom of religion
- right to travel within the states
- right to purchase and use contraceptives
equal protection vs due process
Due process is about the government interfering with people’s rights
When the government limits everyone’s ability to do something → it is due process clause issue
Equal protection is about whether the government is treating people equally under the law
When the government limits a certain class of people from doing something → it is an equal protection issue
equal protection
To allege equal protection violation:
1. the plaintiff must show that he or she is being treated differently from others AND
- That the discrimination appears on the FACE of the law OR
- That there is discriminatory INTENT combined with discriminatory IMPACT of the law.
14th amendment vs 5th amendment
When the answer choice says “the 14th amendment” this ONLY applies to state and local governments.
The 14th amendment never fucking applies to the federal government.
Equal protection is applied to the federal government through the due process clause of the 5th amendment
On the MBE if they have a problem about the (federal) TSA at the airport being racist against middle eastern people for example, the answer is going to be due process clause of the 5th amendment.
If the problem is talking about STATES fucking with people and treating certain classes of people differently than others, the answer will be that it si a violation of the 14th amendment equal protection clause.
strict scrutiny
law must be necessary to achieve a compelling government interest
Burden is on the government - they always lose.
We need the LEAST RESTRICTIVE alternative.. The law has to be a perfect fit and not over-inclusive or under-inclusive AT ALL.
Alienage
National origin
Travel (between states)
Voting
Race
You can only use race as one factor in holistic admissions, it can’t be the main thing you look at. You can’t add points to the admissions “score” based solely on race or have set-aside slots like we need this many x minority” numerical set-asides or “quotas” like that require proof of PAST discrimination.
intermediate scrutiny
law is substantially related to an important government interest
Burden is on the government.
We need the law to be narrowly tailored but the best way is not actually required. So long as the law is one way to get the job done.
Legitimacy
Laws that are like “yea all people whose parents are married get a tax benefit, but not half-blood children” or some type of Harry Potter type law…
Undocumented alien children
Sexual orientation
Recent courts have found that it is met with “heightened scrutiny” but not necessarily intermediate scrutiny in all circumstances.
* So rational basis+ we shall call it.
Gender
* Government may treat men and women differently if There is an exceedingly persuasive justification for the separate treatment and / or The separate facilities are substantially equivalent (male and female bathrooms / dorms)
* Gender classifications benefitting women are sometimes allowed, but they cannot be based on role stereotypes. We can’t have a law where a woman always gets survivor benefits but a man ONLY gets them if he needs them. Or a law which says that a school should let in 90% female nurses because most nurses are women.
* However, if the law is meant to remedy past discrimination and historical differences in opportunity.. There can be a gender classification involved. Such as if there is a statute that gives higher social security pay-outs to women because in the past it was harder for women to make equal employment and therefore we should make up for it by giving them higher payments in retirement. Or if women were historically not allowed to be firefighters… a law mandating that a certain percentage of the firefighter squad must be women would be constitutional.
rational scrutiny
law is rationally related to a legitimate government interest
Challenger has the burden. They always lose.
Government only has to prove a plausible rational basis. So long as the law is HYPOTHETICALLY related to a legitimate government purpose, it fits.
Age
Ex. firefighter has to retire because of law mandating retirement at 93 but he’s in perfect health and doesn’t want to stop.
* Too fucking bad. There is no right to continue working as a firefighter past a certain age. Sorry.
Disabled
Including physical and mental disabilities
* Court reasoned that there is a strong framework of federal and state legislation in place to protect these people, like the ADA.
Wealth
If there is a tax law that ends up giving shittier school facilities to people in certain poorer areas… they can’t challenge it under equal protection
* Being poor is not a suspect class.
The government has a legitimate interest in giving control over education to local communities, and the property tax system is rationally related to that interest!!!
Poor communities get less benefits for schools. Sorry, that’s just life.
If it was illegal to be poor, I’d be actively suing the government multiple times a day.
Alienage related to self-government
Everything else
laws of alienage - strict scrutiny
A law saying ONLY a US citizen can practice law or hold certain jobs or receive medical or social security benefits.
laws of alienage - intermediate scrutiny
Laws about undocumented alien children
In Plyler v Doe, the supreme court said that depriving undocumented children of public education should be met with intermediate, not strict scrutiny.
laws of alienage - rational basis
Self-government, democratic process, or immigration
Some privileges can be reserved for US citizens like
1) voting; 2) being a teacher/cop; 3) serving on a jury; 4) being a probation officer.
Jury ex - the US has a legitimate interest in ensuring that people that serve on our juries are interested in and familiar with the customs and laws of the United States.
Also if congress regulates immigration = rational basis.
Laws related to undocumented (i.e. illegal aliens) are subject to rational basis only.
privileg and immunities clause
This is all about preventing discrimination against out of staters when it comes to:
1) work opportunities (ability to earn a livelihood)
2) fundamental rights
privileges and immunities examples
Ex. Let’s say Rainbow Brown wants to be admitted to the Nevada bar, but he isn’t a resident of Nevada. He looks in the rulebook and sees that to be admitted to the Nevada Bar… you HAVE to be a resident of Nevada.
This is a violation of the privilege and immunities of the 4th
They are stopping him from working. You can’t discriminate against out of staters when it comes to working!
Ex. Let’s say Kevin Tipcorn wanted to become a barber in Illinois. He is from Indiana. He finds out he has to pay $9,000 to get a barber’s license, while Goat only has to pay $600 as a resident of Illinois.
Violation of privileges and immunities of the 4th → ability to earn livelihood is impacted.
Ex. However… let’s say Rainbow Brown wanted to get a Fly FISHING license in Illinois to go fly fishing… but they charged him $1,000. And when Goat got his as an in-state resident… they only charged him $50.
This is NOT a violation.
Fly fishing is not related to earn a livelihood (unless you’re a professional fly fisher or you run tours or some shit lol) IT’S A HOBBY
You can tax out of staters higher for hobbies
who can’t bring a claim under the privileges and immunities clause?
Corporations and aliens CANNOT bring a claim under the privileges and immunities clause because it is all about discrimination against out of state CITIZENS and they are not real citizens.
Answer will be about dormant commerce clause
if the bar is asking a question about discrimination against citizens (non-aliens and non-corporations), the answer will be
the PRIVILEGES AND IMMUNITIES clause of the 4th.
scenario where a state is discriminating against its own citizens, not citizens of other states
This is not a violation of the privileges and immunities clause, as it ONLY relates to out-of-staters.
So what’s the difference between the privileges AND immunities clause of the 4th and the privilege OR immunities clause of the 14th?
Privileges OR immunities of the 14th forbids state infringement on the right to travel BETWEEN states
If you’re from state A and want to move to State B, State B can’t put in a bunch of crazy ass regulations
Durational residency requirements are thus subject to what scrutiny
strict
Examples: If there is a law saying creditors cannot take your house in State A for two years after bankruptcy… but the law only applies if you’ve lived in State A for TWO YEARS… it will be a violation of your right to TRAVEL.
It’s really not just about travel it’s kind of like… your right to move somewhere and get benefits that the O.G. original citizens get.
A state cannot give REDUCED state benefits to citizens that have been in a state for two months vs. citizens that have been there for a year.
If you move to Indiana from Illinois… they can’t stop you from getting welfare benefits or make you wait a year. They can’t stop you from getting in-state healthcare benefits and food stamps, etc.
However, we have two exceptions to this rule…
Some things do not involve the “necessities” of life, like healthcare and welfare benefits, and these are exempt from the rule.
* In state tuition
* Obtaining a divorce
Just remember on the test anything over 1 year is too long for any durational residency requirements.
Newcomers to a state will get all the rights of the O.G. citizens… UNLESS it’s for some luxury shit like divorce and in-state tuition.
50 days is the maximum time you have to wait when you move in to a new state to begin voting.
takings
The government has the power under the 5th amendment to take private property for public use in exchange for reasonable compensation.
Public use = for any fucking reason they want
Anything the government reasonably believes will benefit the public.
If the government reasons that an amazon warehouse is beneficial to the community, that will be considered “for public use”
But, they can not condemn it for free.
They must pay you just compensation.
It just means that you will be entitled to the fair market value at the time of the taking.
Goat note: you can bring an action claiming a taking even if the regulations existed at the time you bought the property.
A temporary taking of a property is not a taking. It must be permanent.
two types of taking
1) possessory
2) regulatory
possessory taking
Government straight up takes your property from you, it is a taking.
It is still a taking regardless of how fucking small the taking is, so long as it is permanent.
If the government installs a tiny ass powerline to your roof, that’s a damn taking.
“The government has engaged in a taking and must pay fair compensation if it authorizes a permanent physical occupation of private property, even when it is a small area and does not greatly affect the owner’s economic interests”
regulatory takings
Normally… the government can use their little police power to regulate land with things like zoning without having to pay anyone shit so long as it is for the health, safety and welfare of the community.
However, it will be considered a regulatory taking if they go too far with their little “zoning” plan and destroy all the value in your property
two ways to prove a regulatory taking
1) if the regulatory taking leaves no reasonable economic use of your property, or
* The zoning destroyed all economic use of the property (this isn’t just a DECREASE in property value my Goats… this is a full blown ECONOMIC WIPEOUT of your property)
Example: There was a case where some dude bought some beachfront property for $1.2 million. Then the government two days later was like “yea… you can’t actually build on this beach.”
He was fucking furious.
They deprived him of all economic use of the property… what was he going to do on it… just swim or something?
There was some other case where a guy had a radioactive waste facility. Then they told him it got zoned so that he couldn’t have the radioactive waste facility, he could only have apartments.
But then there was a SEPARATE law which said you couldn’t build apartments on an old radioactive waste site… lmao. He got totally fucked. This was a regulatory taking through total economic wipeout. He had no use of the property after that.
2) if the taking unreasonably interferes with DISTINCT INVESTMENT BACKED EXPECTATIONS you had in the property.
Take Penn Central station and say the owners wanted to make it cooler and they wanted to build some enormous shit on top of the building, I think they wanted to build office buildings and shit.
The government said you can’t build any shit on top of the station, because it’s a historic landmark.
The train station was pissed because they had already gotten tons of permits for their renovation and started construction work on it.
One could even say they had…. distinct investment backed expectations.
So they alleged that this rule, as applied to them, was a regulatory taking.
The case goes up to the Supreme Court and they develop a THREE part test to determine whether it was a regulatory taking.
1) economic impact of the ordinance
the historical landmark ordinance had a huge economic impact on the train station. They can’t build their little office spaces and make money.
2) investment backed expectation
they had a bigass investment backed expectations … they already got permits and the construction crews had started working on building the new office spaces!
3) character of government action
Does the regulation benefit the public at the cost of a huge burden on a single property owner? If so, the burden may be unfair. Is the restriction just for monetary reasons or truly for the public good?
It looked like the test was in the trains favor, but the court ultimatately said that the factors outweighed against Penn Central because the law appleid to all buildings and didn’t deprive them of the PRIMARY use of their building.. Which was the train station.
contracts clause
A state law… I repeat… a state law that substantially impairs PRE-EXISTING contracts is unconstitutional unless the state can establish that the law is a reasonable way to achieve a significant and legitimate public purpose
So the government can’t go back and be like “yea all you cake bakers who had pre-existing flour contracts? Yea… you don’t anymore.”
Remember, this is only about EXISTING contracts… it has nothing to do with messing with people’s ability to contract in the future
But my Goats… be very careful… because this NEVER applies to the Federal government.
bill of attainder
A bill of attainder is a state or federal law that inflicts punishment on SPECIFICALLY NAMED PERSONS (or very easily identifiable persons ex: The CEO of Tesla) without them going to trial.
For example… let’s say a CEO like Elon Musk gets into a little trouble
The government can’t then come out with a law which says “Elon Musk can no longer be hired as the CEO of a company.”
This… my sweet darlings… would be an unconstitutional bill of attainder.
The only trick they might use is they could give you a law that bans a certain group of people from doing something… such as:
“CEO’s have to disclose all of their personal finances to make sure there are no conflicts of interest”
Well… this doesn’t specifically name someone and the person isn’t easily identifiable… so it is not an unconstitutional bill of attainder.
It just applies equally to all CEO’s. So it’s fine.
ex post facto clause
Only applies to criminal cases, not civil.
There are two ways to violate the prohibition against ex-post facto laws:
1) retroactively increasing the penalty of a crime is not allowed
If Rainbow Brown committed a burglary for example… and the punishment was one year in jail with a $100 fine… and after being charged the legislature changed the fine to $1 TRILLION dollars…
He could challenge this as a violation of the ex-post facto law prohibition.
You cannot INCREASE THE PENALTY of a crime and try to apply it to a motherfucker who is already charged with that crime.
2) You cannot make some shit that was legal when it was done… illegal later on… then punish someone for it.
If Rainbow Brown operates his own unregistered CryptoExchange in 2003 called DoubleRainbowBridge, and in 2003 it was legal to operate an unregistered exchange… but then the government makes it illegal to operate an unregistered exchange in 2018… they can’t go back and punish him for what he did in 2003. It was legal then.
free exercise clause
This clause says that you can believe whatever religion you want and it prohibits government interference with you practicing your religion of choice
The government can’t force you to join a religion, they can’t punish you for worshipping someone (even the demon Gods Paimon, Asmodeus, Balaam, Belial, and Ba’alzamon), they definitely can’t force their religion on you, or take sides during religious controversies.
when can / can’t the government fuck with religion
they can fuck with religion, so long as it is a neutral facing law that just kind of… accidentally fucks with religion
The problem on the MBE will be like ‘yeah there was a group of devil worshippers who wanted to light a fire and engage in 19 hours of ecstatic dance to worship an ancient god”
Then the law will be like.. “Yeah you can’t have fires in the forest”
The devil worshippers will be like “you hate our religion =(“
This is only an incidental burden on their shitty religion
IF THE LAW TARGETS RELIGIOUS PRACTICES SPECIFICALLY… IT IS NOT ALLOWED.
Example: You are not allowed to kill buffalo for a Native American religious ceremony.
okay… THIS LAW IS NOT ALLOWED.
IT DIRECTLY TARGETS RELIGION AND IS MOTIVATED BY A DESIRE TO SUPPRESS NATIVE AMERICAN RELIGION
But if there is a GENERAL, NEUTRALLY APPLICABLE LAW that just says “You aren’t allowed to kill buffalo”… and EVERYONE has to follow it (hunters, restaurants, etc)… THEN IT’S FINE
Look at the problem and ask yourself “are these fuckers actually targeting religion?! Or is this just a neutral law that everyone has to follow that HAPPENS to get in the way of a certain religious practice?!??!”
The law itself must be motivated by a desire to interfere with religion…
if it is not a neutral law and motivated by a desire to discriminate…. THEN Strict Scrutiny will apply
If it’s neutral = rational basis.
establishment clause
The establishment clause essentially forbids the government from forcing people to observe religious practices and prevents the government from unduly benefiting religion (it essentially separates church and state)
No more lemon test
The courts used to look at the Lemon test which took into account the purpose, effect, and potential entanglement of the government with religion
Their new test looks at whether government actions violate the Establishment Clause only by reference to historical practices and traditions (whatever this means)
what can you do / not do at school
- can’t force kids to salute a flag
- can’t force kids into school prayer
- teacher led prayer at football games or class is not allowed
- religion can’t be taught as an actual science in schools, but you can teach it if you are trying to illustrate a diverse range of ideas
religion and financial aid
Can the government give it to benefit religion?
Well, no.
They definitely can’t give it for religious instruction.
But the government can give money to a defined class of people without mention of religion or using any religious criteria… and then if those people happen to USE it for religious shit… that is fine.
Like if the government gives a tax deduction to thousands of parents in the form of a school voucher allowing them to send their child to any school they want… the parents can use this to send their children to religious schools.
Or if a state uses government funds to hire sign language interpreters to help deaf kids at religious schools.
It just can’t be used to DIRECTLY fund religious instruction
AND if they give money to a group… religious and non-religious groups must have EQUAL ACCESS to any facilities or spaces that are built with the money.
freedom of speech - prior restraint
Can we stop speech before it even begins?
The highest form of a restraint on speech is a judicial order to stop speech BEFORE it even occurs = “gag orders”
These are met with strict scrutiny and the government has to show that a special societal harm will occur if the speech is not stopped at the outset
Details about ongoing military operations could cause special societal harm, so a judge may order a prior restraint for this
Highly confidential trade secrets about a business could cause societal harm
Publicizing information about a contagious disease outbreak could cause a societal panic… so that may be suppressed in very special cases
To be valid, a gag order must:
1. Be reasonable, narrowly drawn, and definite;
2. There must be an injunction given by the court; AND
3. There has to be a final determination by a court of the validity of the restraint.
licenses for speech
Let’s say you want to have a parade
The government can require a license for you to host a parade but there must be an important reason for the licensing (maybe to prevent hate speech for example) and there must be very little discretion vested in the licensing board.
There must be fair procedural safeguards (such as a quick determination of whether you will get the license or not) and the licensing decision must be subject to review by the courts.
Fair procedural safeguards… reviewable by court… memorize that shit my G’s.
vagueness
A law about speech can be void for vagueness if a reasonable person of common intelligence would not be able to determine what’s prohibited by the law.
The person actually has to KNOW what they can’t say in order to be charged with breaking the law
Basically, the danger in having a vague law is that prosecutors could just enforce it against whoever they want.
A law prohibiting material that is harmful to minors will be found to be too vague for example.
A law prohibiting “annoying” language or “cursing” will also be too vague
overbreadth
A law is considered OVERBROAD if it regulates way more speech than is necessary
I’m talking about if it prohibits both PROTECTED and UNPROTECTED speech
You can’t prohibit ALL live entertainment in the city just to stop a few strip clubs for example
You can’t prohibit ALL leafleting at the airport. It’s just TOO broad. It knocks out a full mode of communication.
WHAT IF WE HAVE LITTLE BROCHURES WE NEED AT THE AIRPORT?
The world would go into chaos.
what places are available for speech?
- public forums
- designated public forums
- non-public forums
- private property
public forums and limited public forums
time, place, manner.
narrowly tailored.
important interest.
anytime we have content based restriction = strict scrutiny
non public forum
does not need to be subject matter neutral, just viewpoint neutral.
rational basis.
private forum
no protection
public forums
Government can’t ban a form of expression completely in a public forum, like leafleting.
Streets, sidewalks, trees
Public parks are public forums, duh
When it comes to a public forum, the regulations must be both subject matter and viewpoint neutral.
When we are talking about public forum, we need three things for our regulation:
1) the regulation must be a time, place, or manner restriction
Does NOT need to be the least restrictive alternative
2) that serves an important government purpose and
3) leaves open adequate alternative places for communication.
Ex.
the regulation could be: you can’t use one of these loud ass megaphones at night in the park to protest
We got time, we got place, we got manner.
It’s an important purpose (not annoying tf out of everyone) and it leaves open normal speech at night.
No parades allowed on sundays
No speeches on the congressional steps between 9am and noon
No broadcasting ISIS executions in central park on sundays at 9am.
Subject matter neutral vs viewpoint neutral
Subject matter neutral = means it bans all topics regardless of a particular viewpoint being addressed.
Like if a law said “we ban all billboards in the whole town.” This is subject matter neutral… it bans all billboards, regardless of the message they convey.
Viewpoint neutral = if it does not favor one viewpoint over another within a particular topic.
Like if a jail said “no anti-jail picketing outside the jail!!!”… that would not be viewpoint neutral, because it specifically singles out a particular viewpoint to be banned. To be viewpoint neutral it would have to say “no picketing at all outside of the jail!”
designated public forums
These are government properties that the government COULD close to speech IF THEY WANTED but they choose to open them to speech.
A school open at night for a debate
A LIMITED PUBLIC FORUM. THAT THE GOVERNMENT SO GRACIOUSLY CHOSE TO OPEN FOR THIS MOMENTOUS DEBATE.
The government can have certain content-based restrictions on speech so long as they are reasonable and viewpoint-neutral.
I mean if you open up a fucking school gym for a debate… yea you can obviously kick people out that just go in there and start screaming about saving whales in Africa or something.
The government can’t discriminate based on viewpoint though.
They still can’t open up the forum for “only pro-life” supportive viewpoints and stuff like that.
So reasonable time, place and manner restrictions. Important interest still required. Still need to leave open ample alternative channels. Same elements as public forum.
HOWEVER… you can limit some speech and there is a power to exclude certain people, which makes sense because the government is opening up the forum for a specific reason… not just so you can come in and fuck it up with a megaphone.
Remember: Content-based restrictions on speech in public and limited public forums will be met with strict scrutiny if challenged in the courts.
Denial of speech must be necessary to serve a compelling government interest.
non public forum
Government properties which the government can fully close to speech
The government can regulate speech here so long as the regulation on time place and manner is:
Reasonable (this will be a rational basis standard);
and
Viewpoint neutral (just meaning they aren’t trying to suppress a singular point of view because they don’t like it. Like a jail saying “NO ANTI-JAIL PICKETING OUTSIDE THE JAIL”… not allowed.
private property
Stop playing my Goats. You know damn well there is no free speech protection for private property. But how come we, as Goat people, get these questions wrong every single test administration? There’s no protection at the mall. There just isn’t. You Goats will make me cry if you miss these questions, I’m sensitive.
buses
This is random but the MBE has a boner for this whole issue of advertising on the side of PUBLIC BUSES.
They say this is a designated public forum because the government chooses to “open up the side of their bus” for advertising
So remember… no content based restrictions on the sides of buses.
If the church can advertise on the side of the bus, the Satanic Goat Cult can also advertise on the side of the bus.
symbolic speech
The government can regulate conduct that communicates if:
(1) There’s an important interest unrelated to the suppression of speech; and
(2) The restraint on speech is no greater than necessary
Yea you can burn flags.
But you can’t burn them in the lobby of a courthouse if it’s in violation of a fire code law.
You can burn a cross or write a swastika somewhere… and it’s protected.
hate speech / true threats
If you burn a cross with INTENT TO THREATEN a specific person for example… this is a true threat and it is not protected.
Sentencing enhancements for hate crimes are also constitutional
(i.e. getting a bigger sentence for purposefully targeting a certain race for violence)
Speech that is harmful to religious or racial minorities can also be regulated.
fighting words
It can’t just be offensive or annoying
There has to be a genuine risk of IMMINENT violence by a hostile audience
Anytime the speech is directed at IMMINENT incitement of ILLEGAL ACTIVITY… it is unprotected
government worker speech
We have two types of speech for gov’t employee’s (everyone back up, I did my 1L memo on this)
1. Speech in the Course of Official Duties:
Not protected. If your job is to be the press secretary and you say some wild shit AGAINST your political party, you’re getting fired.
2. Water Cooler Talk:
We have TWO tests to determine if speech UNRELATED to your official duties will be allowed:
- Test 1: If the speech DOESN’T involve a matter of public concern and is NOT in the course of your official duties (you are just talking shit with the homies about random shit), you can be punished or fired if it is disruptive to the work environment.
- Test 2: If this speech DOES involve a matter of public concern and is NOT in the course of your official duties (you are a mail clerk who doesn’t have a public facing job and you are just talking shit about the government)… there is a balancing test which balances out your right as a CITIZEN to comment on matters of public concern against the government’s interest in the efficient performance of their workplace environment.
GOAT-NOTE: A government contractor is the same as a government employee! If they try to discriminate against a government contractor by not giving him some construction work or some shit because of his political views… this will be a violation of his rights!!
THE GARDENER AT THE WHITE HOUSE CAN’T BE FIRED FOR NOT LIKING JOE BIDEN AND TALKING SHIT ABOUT HIM… SO LONG AS HE DOESN’T MAKE THE WORKPLACE INEFFICIENT.
public schools
You cannot have speech on school grounds that promotes illegal activity.
PUBLIC SCHOOLS = NO PROMOTION OF ILLEGAL ACTIVITY
Public schools also can punish inappropriate and sexual speech if it causes a substantial disruption to the school environment OR COULD CAUSE ONE
They can suspend you for wearing a crazy ass T-Shirt at a school sponsored after-school activity too, not just on school grounds during school hours
nudity
It is constitutional to ban all public nudity. It’s not a form of political expression unfortunately.
They can also pass regulations on how strip clubs and live entertainment is performed (what level of clothing they’re allowed to have, pasties, etc)
They can also zone adult entertainment (only 3% of the city can have adult entertainment, or all adult entertainment can be zoned into one sketchy area by the river etc.)
obscenity
Obscenity is basically codeword for “some really fucked up shit”
Not just normal porn.
Stuff involving Goats.
But the court hasn’t defined it exactly. They just said “we know it when we see it.”
but it is unprotected
WE GOT A THREE PART TEST to see if it’s obscene and thus not allowed
I have a mnemonic for it: PPP Loans (Miller test)
- Appeals to the prurient interest in sex (shameful or morbid) -> local standard (and no… nudity is not enough to make it prurient you prudes)
- Patently offensive under the law (whatever this means, it’s a case by case analysis) -> LOCAL standard
- Lacks any political, scientific, artistic or literary value ->
I dunno, I mean maybe someone is making love to a Goat in a book or some shit? So if it’s some weird shit that has literary value, it works.
But it can’t just be a FULL book at barnes and noble about people just making love to goats. It has to be part of a larger NOVEL apparently. Great.
PRURIENT - PATENTLY (OFFENSIVE) - (NO) POLITICAL VALUE (or literary or artistic)
obscenity at home and child porn
You can have obscenity at home and read your goat sex book but you obviously can’t have child porn.
Child porn is per se obscene.
A photo of a naked child in a bath tub is not child porn most likely. However, if it is intended to elicit a sexual response… it is.
Must depict sexual conduct of a child to be considered child porn or be intended to elicit a sexual response.
It cannot be CGI Images or virtual reality shit that LOOKS like a child… it must be an actual child.
profane or inappropriate speech
We talked about how at schools you can’t have sexual innuendo or swear words or illegal shit on your shirts or in your speech if it is disruptive or inciting illegal activity.
But you also can’t broadcast profane speech through the radio and public access T.V. and shit
The whole idea is that it is kind of intrusive… it comes into your home and you don’t want to be invaded by swear words
None of this applies now. I don’t even know anyone who has a fucking radio.
But we choose to bring Cable TV and the Internet into our home so you can swear all you want on there.
defamation (slander / libel)
unprotected
just remember that when it comes to public figures and officials we need to show actual malice
and for private figures we only need to show negligence to bring defamation claims.
commercial speech
Commercial speech is speech done to make a profit or on behalf of a company making a profit
WE GOT TWO CATEGORIES OF COMMERCIAL SPEECH
-
FALSE AND MISLEADING COMMERCIAL SPEECH: Not protected.
When it is false or wildly misleading, it is not protected at all.
You don’t even have to know it is false, so long as it is!
But what about when it is true?
Well… if it’s true but there are risks of deception… it can be prohibited as well
Attorneys can’t solicit in-person
Commercial advertisers must make certain disclosures (like they do at the end of medicine ads)
People can be prevented from practicing under a trade name, that type of thing
-
truthful commercial speech can be regulated if the intermediate scrutiny test is met. (Central Hudson test)
The speech concerns lawful activity and is not misleading (threshold question);
Substantial government interest is at play
The regulation directly advances that interest;
The regulation is no more eXtensive than necessary to serve the government’s interest.
Like with all intermediate scrutiny issues, the regulation must be narrowly tailored (but it doesn’t have to be the least restrictive alternative)
time limits for advertising
They like to test these “time limits” on advertising to victims of violence. These are fine
(i.e. psychologists can’t advertise to mothers who lost their children for 60 days, etc). It’s narrowly tailored and there’s an important interest to protect the privacy of grieving family members, etc.
But remember,you can’t have a total ban on truthful advertising… that would not be narrowly tailored.
HOWEVER, you can ZONE advertising.
Remember that dumbass problem where the cigarettes were not allowed to be advertised within 1000 feet of the school? Yea that passed intermediate scrutiny since they had an interest in the kids not smoking those FLAVORED JUULS SON!!!!
Can also prohibit ELECTION advertising within 100 feet of a polling center.
freedom of press
The press has the right to publish most things without being censored.
The MBE is obsessed with you knowing that the press doesn’t have any special first amendment privileges… they just can’t be singled out
(example: you can’t specially tax the press for being the press… but you can hit the whole world with a sales tax that raises newspaper tax incidentally by 5%)
The press also has to follow all the regular laws and shit
The press still has to disclose their confidential sources at grand juries and whatnot.
Think of the press as essentially… the owner of the company itself.
Final Goat-Note: The press may publish lawfully obtained truthful information… IF IT IS IN THE PUBLIC RECORD… even if it is highly sensitive.
Like if they get into the public record and find the name of an underage rape victim. This is allowed unless the state has a compelling strict scrutiny interest to stop them.
freedom of association
you have a 1st Amendment right to gather in groups for any lawful purpose
Any law that prohibits of punishes group membership will be met with strict scrutiny
group member punishment
You just have to know this stupid little test that is needed to punish people for group membership… it goes like this:
You have to have ACTIVELY AFFILIATED with a group, KNOWING OF ITS ILLEGAL ACTIVITIES…. AND WITH………. THE SPECIFIC INTENT OF FURTHERING THOSE ACTIVITIES!!!!!!!!!
You can’t just KNOW about them.
You can’t just be a part of them.
You must further the illegal activities.
Mere membership doesn’t trigger disclosure or punishment - you have to be doing some EXTRA shit and knowing of the illegal activities and then actively helping them.
laws that require disclosure of group membership
must meet strict scrutiny
The government can’t force you to reveal your political affiliations
They can’t punish people for their affiliations
They can’t get that member list unless the government need for it OUTWEIGHS the right to freely associate
KKK = They might be able to get the list
Terrorist organization = they are getting the list
Communist Party Group = They ain’t getting shit. Because it’s not an inherently illegal organization.
who does the freedom of associate not apply to?
private groups who aren’t really political in nature.
Okay but can Daddy Government still prevent a private group from DISCRIMINATING?
Yes.
But we have two exceptions:
Number one -> the dinner party exception
If people don’t invite you to their private intimate dinner party you can’t sue you psychopath
So clubs that are fully intimate and private CAN discriminate, but if they are not fully private and open to non-members or for business purposes… you’re getting hit with that 1st amendment son
Number two -> When it comes to expressive activity… if the whole point of your group is to express some crazy ass ideological viewpoint… you can discriminate
The KKK can exclude black people because the whole point of the KKK is to be racist against black people. They are a white supremacy group.
Anti-gay groups can exclude homosexuals.
But remember that famous case, the Jaycees case or whatever the fuck… the whole point of that case is that they tried to exclude women but… they weren’t a MALE SUPREMACY GROUP (wtf) they were just a regular business group.
schools are not public groups
They don’t have to let everyone in their stupid extracurricular clubs. Strict scrutiny does not apply.
So long as the rules are reasonably related to a legitimate interest and viewpoint neutral… that will work. There isn’t a full blown right to associate into whatever extracurricular school group you want.
So if there was an extracurricular group supporting Palestine for example… they could restrict membership if it would be disruptive to have anti-Palestinian students join. But the school couldn’t be like “yea we can only have pro-Palestinian extracurricular clubs at school, no anti-Palestinian clubs.”
people can’t be forced to associate
There was this famous case where the government tried to force teachers to join a union. They obviously can’t be forced to join a union.
But can they be forced to pay fees which support unions?
No.
They can’t be forced to pay a fee which supports unions.
loyalty oaths
you can’t have a loyalty oath as a condition of public employment
But you can have an employee take an oath not to overthrow the government and support the constitution
Pretty sure we take one of those when we get sworn in as lawyers, but I wasn’t really paying attention at the ceremony
They can’t make you salute the flag though while you take the oath
Basically, the oath has to be narrowly tailored to just say “I won’t overthrow the government, and I’ll support the Constitution” and nothing more than that
