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What Roman Mars Can Learn About Con Law

What Roman Mars Can Learn About Con Law

Professor Elizabeth Joh teaches Intro to Constitutional Law and most of the time this is a pretty straight forward job. But when Trump came into office, everything changed. During the four years of the Trump presidency, Professor Joh would check Twitter five minutes before each class to find out what the 45th President had said and how it jibes with 200 years of the judicial branch interpreting and ruling on the Constitution. Acclaimed podcaster Roman Mars (99% Invisible) was so anxious about all the norms and laws being tested in the Trump era that he asked his neighbor, Elizabeth, to explain what was going on in the world from a Constitutional law perspective. Even after Trump left office, there is still so much for Roman to learn. What Roman Mars Can Learn About Con Law is a weekly, fun, casual Con Law 101 class that uses the tumultuous activities of the executive, legislative, and judicial branches to teach us all about the US Constitution. All music for the show comes from Doomtree, an independent hip-hop collective and record label based in Minneapolis, Minnesota.


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71- The War Between the States

How the Dormant Commerce Clause tries to stop states from passing laws that put an undue burden on interstate commerce and what that means for states that wish to forward specific ethical agendas. Plus, what's going on with student debt relief: who filed a lawsuit against it and why.

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70- Trump's Bet on Cannon

When the FBI executed a search warrant on his home, Trump and his lawyers filed their complaints in a district where they thought they?d get sympathetic treatment from Judge Aileen Cannon, who Trump appointed. The assignment of a particular judge is not up to Trump, but in this case, he got lucky, and Cannon was assigned. How did Trump?s gamble on getting his case in front of Judge Cannon work out? Let?s find out.

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69- The Mar-a-Lago Warrant

The official court order that permitted the search of Mar-a-Lago was made public, and even though much of it was redacted, there is a lot of information about what the government was looking for and which crimes the DOJ are investigating .

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68- The Longest Week

In the final week of the  most recent term, the Supreme Court decided to limit one constitutional right (abortion) and expand another constitutional right (guns). But there were other cases decided that week, which were also important and marked this as one of the most historically significant terms in over 100 years. So what happened in those other cases and why are they so important?

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67- Jan 6 and the Evidence Against Trump

What have we learned from the January 6th Committee hearings and what does is mean for a potential Justice Department investigation of Trump?

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66- After Dobbs

The Dobbs v. Jackson Women's Health Organization decision has overturned  Roe v. Wade and revoked the right to abortion, a Constitutionally guaranteed right we have had for about 50 years. What happens now?

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65- The Second Amendment

The recent mass shootings and a New York gun carrying permit case awaiting a decision from the Supreme Court calls for an examination of the current interpretation of the Second Amendment. The Heller decision from 2008 is the foundation of modern thought on the subject, but that decision is based on guessing what law makers thought hundreds of years ago.

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64- Ethics and Masks

The January 6th committee investigation uncovered unhinged texts from Ginni Thomas, wife of Supreme Court Justice Clarence Thomas, that implicated her in the riot on the Capitol. The release of the Trump White House records that led to the discovery of the texts was an issue that was decided by the Supreme Court. In an 8-1 decision the Court ordered the records released. The lone dissenter was Clarence Thomas. What are the ethical rules for conflicts of interest and the appearance of impartiality on the Supreme Court?

Plus, a new district court judge throws out the mask mandate.

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63- The Leaked Draft

On May 2, 2022 a draft majority opinion written by Justice Alito was leaked to the press. His draft opinion on Dobbs v. Jackson Women?s Health Organization overturns Roe v. Wade and puts many other constitutional rights the court has guaranteed under the 14th Amendment under threat.

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62- On the Other End of the Line

Trump's improper dealing with Ukraine was what led to his first impeachment. While most of us were focused on the domestic political implications of Trump's actions, the country of Ukraine was put into jeopardy in a way that many didn't fully realize until the recent Russian invasion. Time to revisit the first Trump impeachment now that we know more about who was on the other end of that phone line and the imminent danger they were in.

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61- Book Banning and the Constitution

A school district in Tennessee voted to ban the graphic novel Maus from their curriculum.  Because of a case called Pico (1982) the school board's stated objection to the material had to be very carefully worded as to not violate the First Amendment. Now a number of bills limiting the teaching of Critical Race Theory and the 1619 Project are also making their way through state legislatures. What can the government do about the books in the school library and the classroom and what does the Constitution say about it?

Plus we talk about the nomination of Ketanji Brown Jackson to the Supreme Court.


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60- The Administrative State

What two rulings about COVID vaccine mandates tell us about the future of the Administrative State under this  configuration of the Supreme Court. Plus updates on Texas abortion rights, Executive Privilege in the Jan 6 investigations, and Breyer!

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59- A Jurisprudence of Doubt

Supreme Court cases from Mississippi and Texas are challenging  long upheld precedents that established abortion rights. Reproductive rights, and many others, are not explicitly referenced in the Constitution, but are considered fundamental because of the presence of the word "liberty" in the 14th Amendment. 

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58- Executive Privilege, SB 8 update, and Rust

An update on SB 8, Executive Privilege of presidential records connected with January 6th, and a short digression into criminal law about the tragic death on a movie set 

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57- The Eastman Memo

John Eastman, a mainstream conservative lawyer working for Trump, outlined a plan for VP Pence to declare Trump the winner of the 2020 election regardless of the votes. It didn't happen, but should we be worried about the memo when it comes to future elections?

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56- Shadow Docket

The "Shadow Docket," Texas's SB 8, and the state of abortion rights in the US

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55- Double Dose of Jacobson

As people argue over public policy regarding the COVID vaccine, Jacobson V. Massachusetts is invoked a lot. Plus, Trump is in court and the first Capitol riot conviction.

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54- Bong Hits for Jesus

This episode contains explicit language quoted from a cheerleader.

Recorded on Monday 6/28, Professor Joh walks us through three recent decisions that came in at the end of the term and how they relate to court precedent.

California v. Texas

Mahanoy Area School District v. B.L.

Lange v. California

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53- Hate Crimes

On May 20, 2021, President Biden signed the COVID-19 Hate Crimes Act. This bill made special mention of hate crimes against Asian Americans. This was in stark contrast to his predecessor who stoked hate by using racist terms for the coronavirus.  What exactly is a hate crime and what does the Constitution say about them?

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52- Pattern and Practice

What can a President do when it comes to reforming  the approximately 18,000 locally governed police departments around the US? The infamous Rodney King video  showing him being graphically beaten by police officers helped catalyze a giant 1994 crime reform bill that brought the pattern and practice of local police departments under federal scrutiny. How does it work?

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51- The Capitol Mob and their cell phones

On January 6th, a mob stormed the US Capitol to try to stop the certification of the presidential election results. Many of the insurrectionists will be tracked down and charged with crimes, in part, because their cell phone placed them in the Capitol Building during the attack. The case of Carpenter v. United States is the closest the Supreme Court has come to weighing in on the matter of historical cell phone data, but the decision didn?t not offer an opinion on law enforcement?s use of a location specific cell phone tower data dump without an individual suspect in mind. This brings up questions about the way warrants usually work under the Fourth Amendment.

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50- Deplatforming and Section 230

Following the January 6th riot on Capitol Hill, the major social media platforms banned former President Donald Trump, and many accounts related to far-right conspiracy theories. In response, conservative activists have called for the repeal of Section 230 of the Communications Decency Act, saying it would prevent ?censorship? of right-wing viewpoints in the future. But what does Section 230 actually say? How are the social media companies determining what can be on their platforms?

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49- Incitement

On January 13th, former President Donald Trump became the first person ever to be impeached twice by the House of Representatives. But with Trump out of office, it?s unclear if there will be enough votes to reach the two-thirds majority needed to convict him in the Senate. With the trial looming, we look at whether Trump has a good argument against the charge he incited a riot on Capitol Hill, and whether or not it?s constitutional to impeach someone after they leave office.

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48- The Final Days

How Trump is failing to overturn the election and how he might use his pardon power in his final days. This episode was recorded on December 21, 2020.

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47- Lame Duck

In late November, most states have certified the Presidential election for Joe Biden and his running mate, Kamala Harris. But Donald Trump continues to deny the results of the election and insist (without a shred evidence) that he lost because of voter fraud. What does the constitution have to say about the transfer of power? What if Donald Trump fails to concede? What does the constitution say about the period of time after an incumbent loses but remains in power?

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46- Counting Votes

During the 2000 Presidential Election, it wasn?t immediately certain who had won the electoral college votes in Florida, throwing the entire process into chaos. Eventually, the SCOTUS had to step in to rule on the outcome. With the 2020 election only a few days out, we take a look back at how the Supreme Court played a role in adjudicating the election in Bush v. Gore, and then we look forward to what might happen this time around.

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45- SCOTUS without RBG

On September 18th, Ruth Bader Ginsburg died at the age of 87. She was a trailblazing jurist who fought for the equality of women before the law. But her legacy is in peril, as Donald Trump and Senate Republicans prepare to nominate a conservative successor. What can Democrats do to alter the course of the SCOTUS? And what does the constitution tell us about so-called ?judicial supremacy??

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44- The Hatch Act and The Election

With only two months before the election, the Republican Party got a lot of attention - and scorn - for using the White House as a backdrop during their nominating convention. The convention appeared to be in contradiction of The Hatch Act, which forbids federal employees from political campaigning while they?re on duty. Even if the convention broke the law, will anyone be held accountable? Plus, we tackle the President?s recent comments casting doubt on mail-in balloting.

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43- The Trump SCOTUS Term

We review some of the big cases that were decided during the SCOTUS term and assess the constitutionality of the federal policing of the Portland protests

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42- Police, Race, and Federalism

As people around the world continue to protest police brutality, Republicans and Democrats in Congress have proposed bills that would reform policing across the U.S. But in the American system, states are given a lot of latitude over law enforcement, down to the use of tactics like chokeholds and tear gas. Given the constitution, what can the federal government actually do to make things better? Also, why was the ever-obscure Third Amendment trending last month?

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41- The Socially Distanced SCOTUS

The Supreme Court may not be able to meet in person, but they are still doing business over conference call. This month, they've considered three cases about Donald Trump's finances, and whether they should be released to Congressional committees and prosecutors in New York. What does history tell us about these cases which could have major consequences for executive power?

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40- Jacobson and COVID

In mid-April, 2020, states are beginning to explore ways to re-open their economies amid the global coronavirus pandemic. But with states devising their own paths forward, many are wondering what powers the government has, even during a national emergency. Are the states violating our civil liberties by enforcing these lockdowns? To answer this question, many legal scholars are looking to a 115-year-old Supreme Court case for answers, Jacobson v. Massachusetts.

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39- Quarantine Powers

During a health crisis, what is the government allowed to do? As the novel coronavirus spreads across America, there have been closures and lockdowns across the country. In this episode, we look to history to understand who has the power to quarantine, and how the office of the president can be used to slow down a pandemic.

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38- Prosecutorial Discretion

Prosecutors recommended that Roger Stone, an associate of Donald Trump, be given a heavy penalty after being convicted of seven felony counts, including lying to authorities. But after intervention from Attorney General Barr, and tweets from the President, those recommendations were rescinded. What can his case tell us about presidential interference and prosecutorial discretion?

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37- War Powers and Impeachment Update

After Donald Trump ordered the killing of Iranian general Qasem Soleimani, many wondered if the two countries were on the brink of a major conflict. This incident is only the latest in the long-standing fight between Congress and the President over who has the power to make war, and if an act of violence against another state can be legitimate without Congressional approval.

This episode also includes an update on the Senate impeachment trial of Donald Trump, which began earlier this week.

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36- Bribery

Bribery is one of the three offenses listed in the Constitution as grounds for impeachment. Even though that is attempting to bribe Ukraine is the act that precipitated to Trump?s impeachment, it?s not explicitly listed in the articles of impeachment. Why is that?

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35- Confrontation Clause

Since the beginning of the impeachment proceedings against the President, Donald Trump has insisted he has a right to confront ?the whistleblower,? the anonymous member of the intelligence community who set the whole thing in motion. There is a Confrontation Clause in the Sixth Amendment of the United States Constitution, which says a defendant in a criminal case has the right to face their accuser. But does this clause apply to the impeachment hearing against a president in Congress?

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34- Foreign Affairs

Donald Trump says he should not be impeached as President, since there was ?no quid pro quo? on a phone call where he asked the Ukrainian president to investigate a political rival, former Vice President Joe Biden. But does quid pro quo need to be explicitly stated to be a legal issue? And can private citizens like Rudy Giuliani represent America on foreign policy issues?

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33- Obstruction

Trump lawyers assert that all of Trump?s actions during the Mueller investigation were within his rights as President and can?t be classified as obstruction of justice, especially because there is no underlying crime alleged. But as Martha Stewart will tell you, that?s not how obstruction of justice works.

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32- Contempt Power

What is Congress? contempt power and how can they use it to force people to cooperate with their investigations?

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31- Executive Privilege

It's likely that Trump will invoke executive privilege during the numerous investigations and inquiries into his actions. Presidents have insisted they need to keep secrets to do their job effectively since Washington, but the term "executive privilege" is relatively recent and it has rarely been tested in court.

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30- The 25th Amendment

What does the 25th Amendment say about presidential fitness, disability, and Trump?

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29- Birthright Citizenship and the 14th Amendment

Trump has threatened to revoke Birthright Citizenship with an executive order. This proposed order contradicts the Fourteenth Amendment, but Trump?s tweets contend otherwise.

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28- Kavanaugh Special Episode

Some of the Constitutional considerations of the Kavanaugh confirmation process. Recorded October 2, 2018.

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27- Treason

When Trump tweets just the single word ?Treason??, probably in reference to the anonymous New York Times Op-Ed, is he using that word correctly? What does our federal Constitution say about treason? And when exactly does someone commit a treasonous act?

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26- Roe

Trump has a second Supreme Court pick and that has a lot of people wondering about the future of Roe v. Wade. Here we look at the constitutional basis of the decision and the strange personal history of Roe.

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25- Justice Kennedy

Justice Kennedy decided to retire at the end of this Supreme Court term. Kennedy has been the swing vote on a lot of important cases. He?s mostly considered a conservative, but he has voted with the more progressive judges on cases having to do with gay rights and abortion. His successor will be appointed by Trump and that has many progressives concerned that the replacement will be even more conservative.

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24- Taking the Fifth

Trump has said the taking the fifth makes "you look guilty as hell" but lot of Trump's associates are now taking the fifth in the Russia investigation. How should we interpret people taking the fifth?

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23- President Twitter and the First Amendment

Can Trump block people on Twitter? It turns out, the First Amendment has something to say about that.

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22- Posse Comitatus

The Posse Comitatus Act limits the federal government?s ability to use the military to enforce domestic policy within the United States. However, this act has so many allowable exceptions, it has rarely been officially violated. When Trump suggests ?The Feds? should police Chicago to get the murder rate down, he might have found the perfect example of a Posse Comitatus Act violation.

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