Category: U.S. Constitution

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defense & war tax policy U.S. Constitution

The Emergency Tariff Question

tariffs, Supreme Court, Congress, balance of power

As is often the case in Supreme Court decisions, in Learning Resources v. Trump it is the dissenters’ views that are most interesting. 

At issue? The president’s authority to impose tariffs, or alter them. Donald Trump — a life-long tariff proponent — took the International Emergency Economic Powers Act (IEEPA) as an excuse to levy broad new duties on imports from multiple countries. That act delegated to the executive the power to use tariffs as emergency foreign policy measures.

On February 20, the majority on the court gave a decisive No to the President’s use of IEEPA to impose tariffs.*

I generally oppose Congress delegating powers to the executive branch and support free trade. But what does the Constitution actually say? Could dissenters Kavanaugh, Thomas and Alito have a point?

Kavanaugh’s humungous written opinion claims that tariffs are a traditional, common, and lawful means of “regulat[ing] . . . importation” in foreign-policy crises; he says the majority’s narrow reading ignores text, history, precedent, and the special deference due the President in external affairs. “The text of IEEPA authorizes the President to regulate importation,” explains Kavanaugh, “and tariffs are a means of doing so.”

Thomas stresses that IEEPA’s emergency-declaration process provides political accountability, so judicial second-guessing is unwarranted. Further, he argues that from the Founding, “regulate importation” has always included duties; early Congresses and Presidents (Monroe, Jackson, etc.) routinely delegated and adjusted tariffs. While matters of rights cannot be delegated, Thomas argues that privileges can, and have, and that this has long been recognized in constitutional law.

The key question, as Kavanaugh advances, is the balance of power. “Congress retains the ultimate authority to clarify, amend, or repeal IEEPA,” he reasonably asserts, “if it believes the President’s exercise of emergency powers has gone too far.”

This issue became a federal court case because Congress is dysfunctional.

Which puts the issue back in our lap. Where voters can have some control. How? Through elections, pressure, or pushing . . . term limits.

This is Common Sense. I’m Paul Jacob.

* Other avenues may remain open. And Trump is jumping on them.

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election law national politics & policies U.S. Constitution

Federal Election Takeover?

Washington Post, hypocrisy, voting rights, democracy, states rights

“We should take over the voting, the voting in at least 15 places,” President Donald Trump declared on former FBI deputy director Dan Bongino’s new podcast. “The Republicans ought to nationalize the voting.”

That’s just what Democrats in the U.S. House attempted to do back in 2021 with their H.R. 1. I know well because I worked with a large coalition of groups and individuals to oppose that dishonestly labeled “For the People Act.” 

For the people who are Democratic Party hacks maybe.

A 2021 Heritage Foundation analysis argued the legislation would “Seize the authority of states to regulate voter registration and the voting process.”

“The Democratic bill is indeed sweeping,” PolitiFact informed at the time. “At 791 pages, the bill does everything from prohibiting states’ voter ID laws to breaking the gridlock of the Federal Election Commission by removing a member.”

Luckily, H.R. 1 did not pass the Senate. 

Have you ever noticed that in the tug of war between federal and state power, politicians of all stripes support the Constitution’s balance when it suits them and ignore it when it doesn’t?

Same goes for news media. The Washington Post falsely reported on Monday that by urging “Republican lawmakers” to act, the president was “claiming a power explicitly granted to states in the U.S. Constitution.” 

Well, Article 1, Section 4 of the U.S. Constitution does say “The Times, Places and Manner of holding Elections . . . shall be prescribed in each State by the Legislature thereof,” but it explicitly adds that “the Congress may at any time by Law make or alter such Regulations . . .”

Democracy dies in half-truths.  

This is Common Sense. I’m Paul Jacob.

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election law judiciary regulation U.S. Constitution

Fifty Years After Buckley

campaign finance reform, consequences, Tufte inspired

Congress began regulating campaign finances in the 1960s.

In 1976, the Supreme Court’s ruling in Buckley v. Valeo reined in such regulation . . . in part.

This month, at a symposium marking the 50th anniversary of the ruling, John Samples — a former Vice President at the Cato Institute and currently a Member of Meta’s Oversight Board — compared what happened after the 1976 ruling to what might have happened had the ruling been better or worse.

The alleged point of campaign finance regulation was to “level the playing field.” The actual point, Samples observed, has been to “protect the political status quo” by making it harder “to spend enough money to effectively challenge congressional incumbents.”

In Buckley, the court ruled that contribution limits were indeed valid (they aren’t) for the sake of combatting corruption or the “appearance of corruption.” But it also ruled that limits on campaign spending are limits on speech, hence invalid — thereby saving democracy, argued former Federal Election Commission chair Bradley Smith, in the Wall Street Journal a few weeks ago: “The Buckley court understood that effective political speech requires resources.”

The Court also upheld compulsory disclosure of donors and donations. This led to chronic calumniation of donors, helping to poison public discourse.

Samples suggeststhat a more libertarian Buckley might have enabled major reform, even perhaps privatizing of New Deal and Great Society spending programs in the 1980s.

On the other hand, had the decision been worse, “validating spending limits” as well, Congress would likely have continued to hobble challengers. And thus, perhaps, prevented the ascendancy of Ronald Reagan and the emergence of a GOP majority in the U.S. Senate.

Unwarranted restrictions on freedom of speech should be removed completely. Substantially removed is better than not at all, sure. But now let’s finish the job.

Something Brad Smith’s Institute for Free Speech works on every day.

This is Common Sense. I’m Paul Jacob.

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ideological culture judiciary property rights too much government U.S. Constitution

Who’ll Oppose the Quasi-Commie?

Zohran Mamdani, New York City, property rights

Should we expect a four-year pitched battle?

I see one brewing between the new communist mayor of New York City and those judges who respect law and the U.S. Constitution.*

Some say that Zohran Mamdani, though on record admitting his goal of seizing the means of production, is technically not a communist. Well, if allowed to fully impose all he wants on New Yorkers, maybe that would amount to going straight to a fascist model of totalitarian governance — bypassing the Maoist-Stalinist stage.

Giving him the benefit of the doubt.

But we do know that Mamdani was quick to hire such advisors as housing czarina Cea Weaver, who has lamented home ownership as a “weapon of white supremacy” and declared property as such to be something regrettably long treated as “an individualized good” that now must be treated as a “collective good.”

If you don’t own your house as an individual and have a spare room (or half a room), and somebody needs a place to live, could a Mamdani-and-Weaver-run Big Apple compel you to give space to a stranger that you don’t want around? If property becomes a “collective good” and all must cuddle in the warm bosom of the state-managed collective, the answer must be: yes.

But New Yorkers may not be quite doomed.

Not, anyway, if there are enough judges like David Jones, who recently interfered with an attempt by the Mamdani administration to interfere in the sale of many rental properties owned by Pinnacle Group.

Mamdani’s office says they’ll keep trying. 

Of course they will.

This is Common Sense. I’m Paul Jacob.

* Or the New York State Constitution, for that matter: see §7 (a), which clearly states that “Private property shall not be taken for public use without just compensation.” 

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crime and punishment international affairs U.S. Constitution

The Dictator’s Arrest

Maduro, ,Venezuela, Trump, war, drugs

The U.S. military captured Venezuela’s dictator, Nicolás Maduro, and his wife, Cilia Flores, on Saturday; a lot of people who hate Donald Trump are complaining about the president’s decision to “arrest” the foreign head of state. 

Sure, it’s an act of war. 

Authorized by Congress? Not really, but that’s hardly unusual. 

There is that 2020 indictment, unsealed by the U.S. Department of Justice during Trump’s first term, accusing Maduro and senior Venezuelan officials of conspiring with Colombian guerrilla groups (like the FARC) to traffic massive quantities of cocaine into the United States. This was updated in a superseding indictment unsealed over the weekend, which added Maduro’s wife, son, and others as defendants.

Specifically, the charges are:

  • Narco-terrorism conspiracy.
  • Conspiracy to import cocaine. 
  • Possession of machine guns and destructive devices.
  • Conspiracy to possess machine guns and destructive devices.

Considering that Venezuela is a sovereign state and can have whatever drug policies or gun laws it wants, all this might seem a tad . . . ridiculous.

Most people, however, will likely be moved by two very different lines of thinking:

  • Maduro was an evil tyrant, and it’s good that his murderous regime has been (sorta) toppled; and
  • The operation was skillfully done, demonstrating U.S. military strength.

Is the effort coherent and compatible with other international military stances of the United States? Debatable.

How does it affect, say, the U.S. position on Taiwan? Will this encourage or discourage the People’s [sic] Republic [sic] of China?

One could argue both ways. As a successful demonstration of military might, it will likely dissuade the Chinazis. But if it turns world opinion against the U.S., the opposite will likely prove true.

Still, isn’t it hard to side with a dictator? I mean Maduro.

This is Common Sense. I’m Paul Jacob.

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Accountability defense & war national politics & policies responsibility U.S. Constitution

The Irresponsible vs. The Unaccountable

war, law, Congress, military

Six Democrats in Congress — Arizona Sen. Mark Kelly, Michigan Sen. Elissa Slotkin, U.S. Representatives Jason Crow of Colorado, Maggie Goodlander of New Hampshire, and Chris Deluzio and Chrissy Houlahan of Pennsylvania — caused quite a stir, recently, producing a video “to speak directly to members of the Military and the Intelligence Community.” 

What did these former military and intelligence agency vets-turned-congressmen tell our current soldiers and spooks?  

“You can refuse illegal orders.”

While that’s true, and important . . . what orders are they talking about? 

Perhaps the continued bombing of ships in the Caribbean and killing of crews, all on accusations by the White House that these are drug smugglers — without any check or real accountability — is such a case.*

Yet, these powerful senators and representatives are not making it.

Instead, they’ve not even identified one breach. And by refusing to identify any of President Trump’s specific orders, their call devolves into second-guessing the chain of command and encouraging dissension in the ranks, dissuading military personnel from always being “at the ready.”

Further, these wielders of legislative power in Washington have taken no serious action to protect the Constitution nor promoted any legislative action to hold executive action accountable. 

Instead, they pass the buck to the soldier (or CIA analyst) to determine the legality of orders on the fly.

As Haley Fuller wrote at Military.com last week, “[A]sking individual service members to make on-the-spot legal judgments without guidance can put them at enormous personal risk.” 

Was this Democrat video “SEDITIOUS BEHAVIOR, punishable by DEATH!” as Trump posted on social media? I don’t think so. 

It is, however, tragically emblematic of the complete and total abdication of responsibility by these pretend leaders in Congress. 

This is Common Sense. I’m Paul Jacob.

* Reminds me of President Obama’s policy of killing American citizens abroad by drone strikes without, as even he acknowledged, any real process of checks and accountability. Thank goodness for Sen. Rand Paul’s 2013 filibuster raising concerns about this unaccountable power to execute. 

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partisanship U.S. Constitution

Constitutional Defects

Trump, filibuster, law, nuclear option

“It is now time for the Republicans to play their ‘TRUMP CARD,’ and go for what is called the Nuclear Option — Get rid of the Filibuster, and get rid of it, NOW!” 

That’s what President Trump posted on Truth Social back during the shutdown, adding, “WE are in power, and if we did what we should be doing, it would IMMEDIATELY end this ridiculous, Country destroying ‘SHUT DOWN.’”

This was prior to Democrats, off-year election over, suddenly deciding to agree to the same deal to reopen the government that Republicans had been offering for weeks.  

The 60-vote supermajority the United States Senate needs to end debate and vote on legislation is a small-r republican measure, not a small-d democratic one. Reasonable people can disagree over its merits, certainly, but I like the greater consensus it requires. 

What I don’t like is that the party in control of the Senate can at any time change the filibuster rule in any way it wishes, including ending it altogether. 

Rules shouldn’t be this easy to junk. 

Make the Senate filibuster not just a rule, but constitutional law. 

Another major matter of constitutional change is sorely needed. The stability and independence of one of the three branches of the federal government, the U.S. Supreme Court, hangs by a thread.

The number of justices, now nine, is nowhere set in the Constitution. 

Congress and the White House, when held by the same political party — even short of 60 votes in the Senate, because they could simply end the filibuster — could immediately add ten new justices.

Or 20. 

And then confirm all the president’s picks.

All something Democrats mused about doing years ago: packing the High Court with many new justices to magically engineer a new Democratic Party majority on the SCOTUS. 

The number of justices, like the Senate’s super-majoritarian filibuster, aren’t written in stone.

But should be.

This is Common Sense. I’m Paul Jacob. 

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crime and punishment defense & war U.S. Constitution

Gunboat Anti-Diplomacy

Venezuela, drugs, war, US Constitution

A boat in international waters off the coast of Venezuela was blown up by the U.S. military, on President Donald Trump’s proud authorization. 

It was not universally praised.

“The controversy erupted on Saturday when Vance wrote on the social platform X,” Sabina Eaton reports, quoting the vice president: “’Killing cartel members who poison our fellow citizens is the highest and best use of our military,’ referencing the September 2 military strike.”

The idea that the “best use” of our armed forces is to destroy — without arrest or declaration of war or even a serious legal case set before world opinion or, for that matter, U.S. opinion — sounds all too modern but not very American.

Does it matter that they were, or merely might have been, “narco-terrorists,” as the president called the eleven people wiped out on the fast-moving boat? Or that Mr. Trump asserted their service to Venezuela’s strongman Maduro — against whom the U.S. has not declared war?

“Sen. Rand Paul all but accused the vice president of celebrating war crimes,” Eli Stokols and Dasha Burns wrote yesterday at Politico. “The Kentucky Republican ripped Vance over the weekend in a social media fight that could offer a preview of future skirmishes between President Donald Trump’s heir apparent and another Republican with 2028 ambitions.”

The Kentucky senator asked, rhetorically, if the vice president had “ever read To Kill a Mockingbird?

“Did he ever wonder what might happen if the accused were immediately executed without trial or representation??

“What a despicable and thoughtless sentiment it is to glorify killing someone without a trial.”

Rand is right. The use of unlawful or unaccountable power can never advance American interests. Because one of our interests is holding power to account, to the rule of law. 

Thank you for your attention to this matter.

This is Common Sense. I’m Paul Jacob.

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litigation Tenth Amendment federalism U.S. Constitution

Planned Parenthood Gets the Boot

medicaid, Planned Parenthood, abortion, federalism, welfare, rights

Medicaid is a huge handout and also a massive burden, straining resources and tax revenues, and (of course) adding to the debt. It is also known for its complexity, a federal program run by the states. 

Some reformers, seeing the program as an over-complicated mess, yearn to “simplify” it by providing medical care as a “free” federal program. Others, concerned about the dangers of centralization and the obvious incompetence of bureaucracies far removed from taxpayers, advise collapsing Medicaid completely back to the states, to be organized and funded locally.

In this context, the Supreme Court’s ruling yesterday allowing South Carolina to remove Planned Parenthood from its Medicaid program is instructive.

“The majority opinion in the 6–3 decision in Medina v. Planned Parenthood South Atlantic was written by Justice Neil Gorsuch,” explains Matthew Vadum in The Epoch Times. “The new ruling reverses a federal appeals court decision that blocked South Carolina from excluding Planned Parenthood from the program.”

The key issue in the litigation regards a supposed right to choose medical providers: South Carolina, by dropping Planned Parenthood, was alleged to be abridging the right of recipients to choose their medical providers.

Remember that choosing your doctor was falsely promised by President Barack Obama in his medical insurance scheme — so, obviously, the option is highly valued by Americans. But is it a “right”?

“New rights for some mean new duties for others,” Justice Gorsuch wrote, elucidating a basic principle of legal philosophy. 

Applying the idea of rights to government handouts (in which taxpayers are on the hook) is a recipe for disaster. 

Applying federalism, on the other hand, makes not only constitutional sense, but — because the states are closer to both taxpayers and those in need — Common Sense.

I’m Paul Jacob.

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litigation property rights U.S. Constitution

The Stealing Goes On

eminent domain, theft, law

“On March 24, 2025, the Supreme Court of the United States declined to take up the case of Bowers Development, LLC. v. Oneida County Industrial Development Agency Et. Al.,” writes Conner Drigotas, “a decision that allows the practice of legalized theft through eminent domain to continue throughout America.”

This is not good news, as Mr. Drigotas explains. “In that case, Bryan Bowers had asked the Justices to review a ruling from the Supreme Court of New York that allowed Utica city officials to take land on which he had a contract to build and give it to a different private corporation for a separate construction project.” Mr. Bowers had “hoped to stop government officials from using force to pick winners and losers in the construction industry.” But it was a no go.

Politicians and bureaucrats love to grab other people’s property, under cover of “the public interest.” But their “public interest” is nothing more than a thin disguise for helping some individuals (often contributors to politicians’ campaigns) at the expense of others.

“With their denial of Bowers, Justices continued to show support for one of the most hated and notorious decisions to come out of their lofty chambers: that of Susette Kelo v. New London, Connecticut,” explains Drigotas. The Kelo case, often mentioned here, remains the ruling precedent, the government’s license to steal. Its loose construction of what can be regarded as in “the public interest” is a big part of the problem. 

Sadly, the courts have so far refused to rein in government eminent domain abuse. And voters have little sway upon the judiciary. And our representatives, our first line of defense, have also declined to stand up for basic justice and decency.

What to do? Remember that your representatives will soon be on the ballot.

This is Common Sense. I’m Paul Jacob.

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