Category: U.S. Constitution

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education and schooling litigation U.S. Constitution

Education Function Injunction

Department of Education, schools, dumpster fire, debt

When President Jimmy Carter broke his 1976 campaign pledge by adding another Cabinet-level department to the federal roster, he swore that a “separate Cabinet-level department will enable the Federal government to be a true partner with State, local, and private education institutions in sustaining and improving the quality of our education system.”

On March 20, 2025, President Donald Trump signed an executive order aimed at shutting down Carter’s Department of Education, fulfilling his campaign promise to reduce federal involvement in education.

This was popular because everybody who’s not a bureaucrat or a teachers’ union agent knows that federal involvement in schooling, since Carter’s time, has been, not just a waste, but a detriment.

Still, teacher union-dominated Democrats are swiping at the administration with numerous lawsuits. U.S. District Judge Myong Joun in Boston issued a preliminary injunction blocking Trump’s layoffs and transfers, ruling that they amounted to an unlawful attempt to dismantle the department without congressional approval. 

Earlier this month, the 1st U.S. Circuit Court of Appeals upheld Joun’s injunction, rejecting the Trump administration’s request to pause the order while appealing. 

Two days later, the Trump administration, through Solicitor General D. John Sauer, filed an emergency appeal with the U.S. Supreme Court. The plea? Lift the injunction and allow the layoffs and reorganization to proceed. Trump’s team argued that the lower court had overstepped its authority and that the layoffs were a lawful personnel action to streamline the department, not an attempt to abolish it without Congress. 

The injunction sent DOE functionaries back to work. Nothing’s been resolved.

Not even the rationales for Carter’s “greatest achievement” (to quote the title of a USA Today op-ed). Carter had promised to reduce the number of departments, for efficiency’s sake. When creating the DOE, he said the move would increase efficiency. 

Instead, it merely increased education spending while academic achievement has plummeted.

This is Common Sense. I’m Paul Jacob.

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Fifth Amendment rights U.S. Constitution

The Hill to Die On

due process, illegal immigration, deportation, Constitution, courts

“This is a hill they’re willing to die on,” Sen. Marsha Blackburn (R-Tenn.) told a Fox News audience. The senator was dumbfounded by the Democrats’ support for returning Abrego Garcia, the man deported from Maryland to an El Salvadorean prison.

Former Trump campaign manager and advisor Kelly Anne Conway, substituting for regular host Sean Hannity, opened the program by showing a picture she explained was “Maryland Senator Chris Van Hollen staring affectionally into the eyes of admitted illegal immigrant and accused serial wife abuser and human trafficker with suspected gang ties, who was recently deported to his home country.”

Others claim Garcia is “a loving father and husband,” who “has never been charged with or convicted of a crime in the United States.” 

But whether a dangerous criminal or an innocent, hard-working family man, Garcia’s status is hardly the issue. This is about whether our government must follow its written Constitution. 

In court filings, the Department of Justice acknowledged that Garcia’s deportation was an “oversight” and “an administrative error,” as it violated a previous court order not to send him back to El Salvador.    

A unanimous Supreme Court clarified that the administration is required “to ‘facilitate’ Abrego Garcia’s release from custody in El Salvador and to ensure that his case is handled as it would have been had he not been improperly sent to El Salvador.”

My question is: Why are Trump and Republicans willing to die on this hill? 

It could kill their future political chances. 

I believe in due process, and I vote. 

This is Common Sense. I’m Paul Jacob.

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free trade & free markets international affairs tax policy U.S. Constitution

Legal Trade War

Donald Trump

Donald Trump’s imposition and changing of tariffs, all by his lonesome — without Congress — vexes more than a few critics.

His authority to do this, however, derives directly from laws passed by Congress.

The U.S. Constitution gives Congress the power to “lay and collect Taxes, Duties, Imposts and Excises” under Article I, Section 8, which includes tariffs, since they are taxes on imported goods. But Congress has legislated hand-offs to presidents, allowing significant flexibility on tariffs.

The idea seems to be that, as Commander-in-Chief, the president should handle trade because . . . like war, it has to do with foreign countries.

Laws allowing presidential discretion include Section 232 of the Trade Expansion Act, Section 301 of the Trade Act of 1974, and the International Emergency Economic Powers Act of 1977. 

The first says that the president has broad discretion to define as threats to national security all sorts of things and then impose tariffs and other trade restrictions in response.

The 1974 legislation authorizes further along Trump’s favored line, the power to retaliate against “unfair” foreign trade practices.

The IEEPA grants sweeping powers in a declared national emergency.

So if free traders and others are alarmed at Trump’s seemingly dictatorial powers regarding tariffs, it isn’t new. It has been built into the Imperial Presidency. While Congress could take its constitutional authority back, there is certainly no groundswell to do so.

Also not new?

What setting up high tariffs have historically done: elicit similar tariffs in retaliation. 

Yikes: the kind of trade war that made the Great Depression “great.”

This is Common Sense. I’m Paul Jacob.

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First Amendment rights U.S. Constitution

Chalk One Up for Equal Treatment

chalk art, street art, censorship, BLM

“The government may not enforce the laws in a manner that picks winners and losers in public debates,” ruled Judge Neomi Rao. 

This, in response to a case where anti-abortion protesters were arrested for chalking the words “Black Pre-born Lives Matter” on a Washington, D.C., street back in 2020.

Emma Camp makes clear, in her Reason coverage of the ruling, that the case is not as simple as it may sound in the headlines. “While writing chalk messages on public streets and sidewalks is considered vandalism in D.C., protest leaders had an earlier conversation with a police officer in which he ‘explained that he believed Mayor Bowser had effectively opened up the District’s streets for political markings.’”

Nevertheless, during the protest, “police told demonstrators that they would be arrested if they painted or chalked any messages.” Two individuals in the pro-life protest defied police order and scribbled their message in chalk.

It’s actually a bigger issue than just an altercation during a protest. The police in D.C. had not merely looked the other way, allowing helter-skelter displays of “Black Lives Matter” graffiti, but the city government had actually gotten in on the act and messaged “Black Lives Matter” on the streets itself — in bold paint.

This obviously sends a message to disagreeing citizens: we are on this side, not that.

As Judge Rao insists, “The government may not play favorites in a public forum — permitting some messages and prohibiting others.”

She interprets this injunction as pertaining to the First Amendment, but it goes much deeper than that, reaching to the core idea of a rule of law, and equality of treatment under it.

This is Common Sense. I’m Paul Jacob.

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Accountability national politics & policies U.S. Constitution

Facing the Debt with Deceit

trillion dollar coin, platinum, folly

The “trillion dollar coin” solution to the federal debt reared its absurd head, again, during the recent “debt ceiling” brouhaha.

I wrote about it over ten years ago, when Big Talkin’ Republicans were challenging Big Spendin’ Democrats over raising the debt ceiling at that time. 

The idea is bold trickery, allowing the President to inflate the currency by leveraging Treasury’s Congress-given ability to coin platinum coins at any face dollar value. 

Typically, such collector coins sport on the reverse a value far below the metal’s value.* The trillion dollar coin would invert that, fixing the face value far, far above the metal value. The freshly minted coin would be sent to the Federal Reserve, covering the books that way.

It’s inherently deceptive and obviously ridiculous.

Thus it symbolizes contemporary politics quite aptly.

After the recent budget compromise that forestalled any real work of marshaling the federal government’s scarce (if astoundingly awesome) financial resources, however, the trillion dollar coin has been shelved.

For now.

Indeed, Democrats are tiring of the debt ceiling brinksmanship game. And it is mostly posturing. “Democrats have introduced a bicameral proposal to overhaul the debt ceiling process, leaning heavily into the recent default scare to push a bill that would essentially let Treasury ignore the debt cap and continue writing cheques with no limit,” explains The Epoch Times.

Would this any be better than the fake coin?

Perhaps more honest.

But, once again, it would be Congress giving away its authority. 

And until Congress can restrain its spending habits, we, the people, will always come up tails.

This is Common Sense. I’m Paul Jacob.

* On the day I checked, the spot price for an ounce of platinum was just over $1000, and the face value on the American Platinum Eagle remained $100, the ratio being a tenth of metal value.

trillion dollar coin, debt, Congress, folly

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national politics & policies term limits U.S. Constitution

The Demand for Term Limits

Rep. Matt Gaetz, US Capitol, Term Limits

Lots of talk about term limits last week — in Washington. 

Of all places. 

What bizarre chain of events caused career congressmen to start jawboning and horse-trading about the popular reform that most of them viscerally oppose?

It was the work-product of a small number of hardcore conservative Republican legislators, a mere 20, flexing their strength and commitment at a critical political point — the election of the House Speaker — and armed with concrete demands.

“We offered Kevin McCarthy terms last evening that he rejected,” Rep. Matt Gaetz (R-Fla.) told reporters last Tuesday. One of those? “We’ve sought a vote in [the] first quarter of the 118th Congress on term limits.”

By week’s end, however, McCarthy had been elected Speaker of the House . . . but only after having pledged to bring to the floor that congressional term limits amendment, authored by Rep. Ralph Norman (R-SC), one of the 20 holdouts, along with making other concessions. 

Meet the Press host Chuck Todd yesterday cast shade on the effort, calling these “show votes.” 

While it’s true that incumbents are unlikely to vote for the term limits amendment in the 2/3 supermajority the Constitution requires, or for the balanced budget amendment for which the holdouts, mostly Freedom Caucus members, also secured a commitment from McCarthy. 

“We’ve got to start taking steps to make fundamental change in America,” Rep. James Comer (R-Ky.) told Todd. And putting every U.S. representative on record on term limits sounds like a great first step for early 2023.

Worth the battle.

This is Common Sense. I’m Paul Jacob.

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general freedom media and media people U.S. Constitution

We’ll Keep It

Constitution, news media, Trump

An answer is warranted. 

When a former president of these United States asks a question of such magnitude, as Donald J. Trump did last week on Truth Social, how can we not respond?

“So, with the revelation of MASSIVE & WIDESPREAD FRAUD & DECEPTION in working closely with Big Tech Companies, the DNC, & the Democrat Party,” Mr. Trump inquired, “do you throw the Presidential Election Results of 2020 OUT and declare the RIGHTFUL WINNER, or do you have a NEW ELECTION?”

Trump is, presumably, referring to Elon Musk’s recent release of information about FBI communications with Twitter during the 2020 campaign, with the Feds suggesting that stories about the Hunter Biden laptop were likely Russian disinformation — even though the FBI knew at the time that that it was Hunter’s laptop. For the FBI to work to discourage media platforms from providing such information to the public is deceptive and wrong. It should be investigated and, depending on the evidence, prosecuted to the full extent of the law. 

Such collusion is even more destructive of our democratic system when done with partisan political motives. Which may now be SOP at the Bureau.  

So, let’s answer Mr. Trump’s questions. “No,” per declaring him the winner and sending President Biden packing. And a no-go on a new election. Of course, there is one in 2024, and Trump is a declared candidate.

Yes, the news media is largely dishonest, drunk with their power and deluded into thinking they should keep information from us if it might make us vote contrary to their desires. Moreover, the Deep State is actively colluding with them (and vice-versa) to warp public opinion. 

Trump argues that this new information “allows for the termination of all rules, regulations and articles, even those found in the Constitution.” He’s dangerously mistaken.

Who would “terminate” these laws and constitutional provisions? His dear friends in Congress, The White House, the FBI and DOJ? Unelected judges — who’ve already ruled against his campaign? A mob, pray tell?  

No, thanks. That Constitution? We’ll keep it. 

This is Common Sense. I’m Paul Jacob. 

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crime and punishment national politics & policies U.S. Constitution

The Act That Can’t Cut It

Trump, raid

During Donald John Trump’s time at 1600 Pennsylvania Avenue, he expressed his displeasure with some documents by tearing them up.

Which is illegal, as CNN takes pains to make clear. His underlings would then scoop up the shreds of paper and tape them together. 

Keyword: farcical.

This comedy might be funny to watch in a sequel to, say, In the Loop, the 2009 political satire. But it’s not so funny in the current iteration, with the FBI’s raid on Trump’s Mar-a-Lago mansion.

The search for documents “illegally removed from the White House” has seems an obviously political ploy. Since Trump was legally allowed to de-classify documents, his taking of allegedly still-classified docs seem, well, a rather trivial matter.

Keyword: petty.

Right-leaning media and the left-ensconced media talk about all this very differently, of course, and I confess to finding the former a little more convincing than the latter. Focusing on documentation seems like an excuse to find some petty thing to disqualify Trump from running again in 2024.

While Trump not running again might be the best thing for the GOP, and America, that’s not really relevant: Republicans are stuck with the one champion, with few decent alternatives, and Democrats are in worse shape. Which is why they fret about Trump.

Using the Presidential Records Act of 1978 as a disqualifier for a Grover Clevelandesque re-run of a defeated president is on everybody’s lips. But there’s a problem: how could it possibly pass constitutional muster? The Constitution specifies the qualifications for the job. Congress cannot add or subtract to those qualifications by law.

That was the argument used to disqualify term limits in U.S. Term Limits v. Thornton: qualifications for candidates were specified in the Constitution. Neither states nor Congress could change it.

If Democrats seek to breach this principle . . . then let’s look at term limits again.

Keywords: do it.

This is Common Sense. I’m Paul Jacob.

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Accountability U.S. Constitution

You Could Look It Up

IJ, Institute for Justice, GPA

Your constitutional rights have been violated. Now what?

One thing you can do is find out exactly where you stand with respect to what the Institute for Justice calls “clearly established law.” IJ has created a new research tool, the Constitutional GPA, to help lawyers and others identify relevant legal decisions.

The tool is designed to help users make government accountable despite the many confusing barriers to accountability. The “GPA” in the name refers both to “grade point average” and the question that is part of the tool’s graphic design: “Is your Government Preventing Accountability?”

Doctrines of qualified immunity and other special rules often prevent government officials who violate your rights from being held responsible unless courts have ruled otherwise with respect to specific rights-violating actions. Exactly what the law permits or proscribes can vary widely in different jurisdictions.

The interactive tool grades state governments and federal courts of appeal based on how they treat claims of immunity and helps users “identify the clearly established law necessary to defeat qualified immunity.”

IJ gives the example of a government employee’s unjustified search of your car supposing this takes place in Nevada. Answering a few simple questions enables one to search the Constitutional GPA database of hundreds of cases to find about a dozen pertinent legal decisions.

So if you find yourself on the wrongest of wrong ends of the State, watch the Institute’s YouTube video on how to use the new tool and try it out at the ij.org/gpa web page.

This is Common Sense. I’m Paul Jacob.

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ideological culture judiciary national politics & policies U.S. Constitution

Packing Unpacked

Supreme Court, Justice, court packing

The “court packing” notion that progressives itch to implement has obvious flaws — which have been addressed (but not settled) in the recent report of the Presidential Commission on the Supreme Court of the United States, initiated by the Biden Administration last April. 

The report, just out, did not give progressives what they want. “Opponents contend that expanding — or ‘packing’ — the Court would significantly diminish its independence and legitimacy and establish a dangerous precedent that could be used by any future political force as a means of pressuring or intimidating the Court. The Commission takes no position on the validity or strength of these claims.” 

Not a few Democrats wanted the Commission to take a very negative position on those claims. Democrats currently maintain a shaky hold on power in the Legislative and Executive branches. Had the Commission given them the green-light to push progressives onto the Court — to overwhelm the current “conservative” majority — they might have consolidated power.

The report is inconvenient for that political move — as is Associate Justice Stephen Breyer’s opposition. Damon Root, at Reason, summarizes Breyer’s case: “It is a tit-for-tat race to the bottom. One party expands the size of the bench for nakedly partisan purposes, so the other party does the same (or worse) as soon as it gets the chance.” Breyer fears that court-packing would undermine Court authority, and liberalism itself would suffer.

By “liberalism” I take Breyer to mean the order that is defined by the Constitution itself: separation of powers, basic rights, citizen control of government. And there is a way to save this kind of “liberalism”: fix the size of the Supreme Court in the Constitution.

The very opposite of court packing.

This is Common Sense. I’m Paul Jacob.

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