Can Congress Sue Biden Over The Student Loan Constitutional Crisis He Created?

Can Congress Sue Biden Over The Student Loan Constitutional Crisis He Created?

By suddenly adding so-called student loan “forgiveness” to the November elections, President Joe Biden has used politics to paper over the constitutional crisis he precipitated. Under the Constitution, paying off federally insured student loans would be a presidential usurpation not only of the legislative power but also the appropriations power, the taxing power, and the “debting” power.

Starting with his 2020 campaign, Biden’s — and the Democratic Party’s — advocacy of loan cancellation has been an independent political and economic issue, not based on the exigencies and economic stresses caused by lockdowns. A “Fact Sheet” released by the White House the day Biden announced the loan cancellations, goes on at length about “keeping college costs under control,” and it gives the history of federal student loans and the accumulated debts of so many borrowers “since 1980.” The effect of the pandemic-induced lockdowns is referenced, but the phrase “national emergency” is not used. 

No Congressional Intent to Cancel

On the same date, that is, more than a year and a half after Biden had assumed office, however, the Department of Justice and Department of Education issued separate legal memoranda finding statutory justification for the massive loan cancellations in the continuing “national emergency” of the pandemic.

Both departments point to the HEROES Act, passed by Congress in 2003 as a response to the attack on the World Trade Center, which eased the student loan burdens of military service members during war, military operations, disaster area, or a “national emergency.” In their memoranda, both departments cite and repudiate a January 2021 memorandum by the deputy general counsel of the Trump Department of Education as it was going out the door that “Congress never intended the HEROES Act as authority for mass cancellation, compromise, discharge, or forgiveness of student loan principal balances, and/or to materially modify repayment amounts or terms.” 

The president and his administration have now decided that by taking “national emergency” out of its military and terrorism context, they can invoke 20-year-old legislation as a justification for a massive and unparalleled executive-ordered federal expenditure. The supposedly relevant provision of the HEROES Act concerns a person who has “suffered direct economic hardship as a direct result of a war or other military operation or national emergency.” But it is more than obvious that there is nothing about the decades-long student loan problem that is a “direct result” of Covid. The HEROES Act contains no universal loan forgiveness. 

Questionable Precedent

As it happens, a decision of the Supreme Court handed down only two months ago is based on the constitutional principles that the Biden administration is attempting to avoid here. In West Virginia v. EPA, by a 6-3 vote, the court overturned an effort by the Environmental Protection Agency (EPA), citing a rarely used provision of the Clean Air Act, to promulgate new carbon-dioxide emissions standards.

Arguing that the EPA had exceeded its statutory authority under that act, West Virginia and 23 other states sued. The high court found that the suing states had standing because the new rule required them to “more stringently regulate power plant emissions within their borders.” “Under the major questions doctrine,” the court, citing precedents, ruled against the EPA and stated that the court “expect(s) Congress to speak clearly if it wishes to assign to an agency decisions of vast economic and political significance.” 

In 1952, President Truman, in the face of a threatened strike by steel workers, ordered the Secretary of Commerce to seize and continue the operation of America’s steel mills in order to protect military operations in Korea. In the landmark case of Youngstown Sheet & Tube v. Sawyer, the steel industry sued.

The issue was “the extent of presidential power” in Article II of the Constitution. There was neither statutory authority nor constitutional authority, “express” or “implied,” including his power as commander in chief of the Armed Forces, the court held, for the president to do what he had done. The court concluded that “[t]he Founders of this Nation entrusted the lawmaking power to the Congress alone in both good and bad times.”

Can Members of Congress Sue?

Since it is their exclusive constitutional authority over legislation and the purse that is at stake, the Senate and House have or ought to have the standing to file a lawsuit in federal court challenging the constitutionality of the loan cancellation. In light of the House’s “originat[ing]” authority over “raising Revenue,” it may be more appropriate for the House to do so.

A full house or a committee of Congress has the standing to sue the executive. In Department of Commerce v. House of Representatives, the standing of the House of Representatives to be heard in court concerning a dispute about how the Census Bureau’s plan to conduct the decennial census would affect re-apportionment, the constitutional basis of the makeup of the House, was obvious. (There were statutory bases for standing as well).

In Committee on the Judiciary v. Miers (2008), the federal district court in Washington, D.C., upheld the standing of the House Judiciary Committee, acting for the entire House, in a dispute with former White House counsel Harriet Miers who had refused to appear before the committee despite a subpoena.

The question, then, is whether individual members of Congress can sue. There is only one major case. It is recent, and its holding is against such suits. In Raines v. Byrd (1997), the Supreme Court ruled that the congressional plaintiffs did not have the standing to sue in federal court because they could pursue their grievances by proposing and enacting relevant new laws.

Congress had just passed the Line Item Veto Act which gave President Bill Clinton the veto over sections of new legislation while enforcing the whole law. A total of six members of Congress from both houses, all of whom voted against the new law, filed suit. The Supreme Court held that the suing members of Congress did not have standing because they had had their chances to oppose the bill with their votes, and “they simply lost that vote.” Their suit claiming a “dilution of institutional legislative power,” was too “abstract.” The court held that they had not suffered the necessary personal injury to their roles as members of Congress to qualify them for standing. 

However, before Raines, prior suits in which individual-member standing was recognized had been handed down by the federal appeals court for the District of Columbia. Two of them concerned challenges to specific presidential acts. In Goldwater v. Carter (1979), the appeals court recognized Sen. Barry Goldwater’s and other individual senators’ standing to sue President Jimmy Carter for unilaterally canceling a mutual defense treaty with China. The court noted that the treaty had already been voted on and passed, and, thus, Carter’s action had nothing to do with any dispute over the language of the treaty. It was a unilateral executive act. Therefore, the votes of senators had been compromised, and they had standing.

In a dispute involving the presidential pocket-veto and President Richard Nixon’s refusal to recognize a new law enacted just before the Senate recessed, Kennedy v. Sampson, (1974). Sen. Edward Kennedy (along with 19 other senators) sued individually claiming that his vote in favor of the law had been nullified by the executive. The court of appeals found that Kennedy had standing because Nixon had denied him “the effectiveness of his vote as a member of the United States Senate.”

Will the Separation of Powers and the Purse Be Ignored?

The fundamental difference between Biden’s student loan cancellation and Raines is that members of the current Congress had no prior opportunity to vote on loan cancellation. When that fundamental fact is combined with the reality that Biden has not only used the executive power to create legislation but to fund it as well, it is difficult to understand how this is not a “major question” for the Supreme Court to decide.

The creation of an entirely new program, whether found lurking in the HEROES Act law or not, along with the possible expenditure of as much as $1 trillion, is, in the language of Raines, anything but “abstract.”

Two months ago, in West Virginia v. EPA, the court concluded that there was a larger and more important principle than the details of the administrative law of the executive branch. Here, it is the same. It is vastly more important to adjudicate the constitutional separation of powers and Congress’s “commanding” power of the “purse” than to avoid a constitutional confrontation by endorsing the Biden administration’s targeted twisting of the statutory language of the HEROES Act.

There are other considerations, the most important of which may be that this is the biggest open and direct confrontation between the executive and legislative branches since Youngstown, a case that did not even involve the appropriation power. The lack of more available precedents proves how extreme the current situation is.

In addition, we deal here with two opposite interpretations of “official” executive branch legal memoranda concerning the same federal education statute. Per Marbury v. Madison, it is the duty of the high court “to say what the law is” here. Likewise, if the Republicans should win control of the House in November, would they schedule a vote seeking to file a suit on behalf of the whole House when they take power in January?

Like the conflicting interpretations of the statute, there could be a kind of similar contradiction on the constitutional role of the House within a four-month period.

Since retiring as an Assistant U.S. Attorney, Thomas R. Ascik has written about legal and constitutional issues on a variety of websites including The Federalist, The Imaginative Conservative, and Law & Liberty.


Kamala Harris On NBC: We’re Only A Legitimate Democracy If Democrats Are In Power

Kamala Harris On NBC: We’re Only A Legitimate Democracy If Democrats Are In Power

Democrats and their fangirls in the national media pretend they have this thoughtful, nuanced view about where the country is right now, but it really boils down to: None of America’s institutions or political processes are lawful nor legitimate unless we’re the ones controlling them.

Elections, Supreme Court decisions, legislation signed into law, “norms,” etc. All of it holds meaning so dear to their hearts.*

*Except when Republicans are in power, in which case it’s all fraudulent.

That dynamic was reinforced in virtually everything Vice President Kamala Harris said during an interview that aired Sunday with NBC’s Chuck Todd. She said the Senate filibuster rule should be discarded for Democrat priorities, but believed it should be maintained for everything else. Roll the tape…

Todd: “Are you comfortable that this could end the legislative filibuster for good, probably, even if you only try to do it for two issues?”

Harris: “No, I’m not. No I’m not.”

She said the country needs a president who will “speak up and raise the alarm” about those “who right now are vividly not defending our democracy.” Then she excused Democrats who actively supported and elevated Republican primary congressional candidates who voiced skepticism about the 2020 election.

Back to the tape…

Todd: “When you see the Democratic Party and some parts of the party funding ads to promote some of these election deniers in primaries… Is this something you’d be comfortable with?”

Harris: “I’m not going to tell people how to run their campaigns, Chuck.”

She professed to be deeply dedicated to ensuring the world witnesses America’s dedication to “the importance of democratic principles, rule of law, human rights.” Then she undermined our highest court, accusing the justices of being politically motivated.

To the tape…

Todd: “How much confidence do you have in the Supreme Court?”

Harris: “I think this is an activist court.”

There is no logical end to Harris and every other Democrat leader’s thought process other than: When we run things, it’s right, just, and everyone must accept. When it’s not us, everything is improper, invalid, and unlawful.

To be a Democrat is not to be pro-democracy. It’s to pursue a one-party state.

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Hell Yes, Dobbs Was Worth It

Hell Yes, Dobbs Was Worth It

Conventional DC wisdom says Republicans are about to pay a heavy political price for supporting the Dobbs decision that overturned Roe v Wade. The prospects of a Red Wave election are deteriorating. An “invisible army of women” are flocking to register to vote. Dobbs had fired up Democrats. Joe Biden’s fortunes, miserable only a few months ago, have suddenly turned around. The Economist says that cheering on Dobbs was “one of the worst political decisions of recent memory.”

Even if all of this were true, and I’m highly skeptical it is, “cheering on” the Dobbs decision was completely worth it. Just as cheering the overturning of Dred Scott or Schenck was worth it. Not everything is about short-term partisan gain.

You might also cheer because if someone had told you ten, or even five, years ago that Roe v. Wade would be overturned, you wouldn’t have believed them. Roe has been treated as a sacred text for over 50 years, not only by the press but by most of our institutions. The “right” to terminate life for convenience’s sake had been irrecoverably tethered to feminism and progress. For millions, it probably remains the only SCOTUS decision they can name. And once the left procures a new “right,” it rarely relinquishes it. The prospect of there being six justices willing to uphold the Constitution in the face of this immense pressure was improbable, to say the least.

So, yes, cheer.

And, surely, once Roe was overturned, there would be a tumultuous political upheaval with a massive price tag? Even if we accept everything we’re hearing about the political fallout over Dobbs, the blowback is quite underwhelming. If a two-point swing in the presidential approval rating during a midterm election is the price for overturning Roe, then it was maybe the greatest bargain in history. The consequences of Dobbs will dwarf that of, say, Obamacare — which cost Democrats the Senate, House, and over a thousand seats in lower races. Indeed, most Dems didn’t wring their hands and regret the vote.

Unlike Obamacare, a political decision, Dobbs was a judicial one. It might be impossible for the progressive to comprehend, but it’s highly likely that not one of the justices who signed onto Dobbs believed — or cared — if it would be popular (other than perhaps John Roberts).

Just because Dobbs was “worth” celebrating doesn’t mean Republicans shouldn’t have been better prepared for the probable outcome of Dobbs v. Jackson Women’s Health Organization. It always amazes me how timid and ineffective Republicans are at making the pro-life case. Which makes me suspect many of them are unhappy that pro-life legislation is no longer just a theoretical proposition.

There is bound to be some blowback. Full bans, without exemptions in cases of rape and incest — even if it is morally consistent — are probably never going to be popular nationally. But most Republican-run states allow for some level of first-trimester abortions, a position more in line with the mainstream than the Democrats’ maximalist position on abortion on demand, for any reason, until birth, funded by the taxpayers. Few on the left, of course, need to worry about the consequences of their radical position they are almost never asked to defend it. But, if, say, Ron DeSantis is the presidential nominee in 2024, he will be defending Florida’s 15-week ban against Biden’s NARAL-endorsed extremism. I’m not sure that works out exactly how Democrats imagine.  

Democrats have been fooling themselves with faulty and push polling for years. Even if we conceded the tepid swing in national momentum towards Democrats was real, it could be attributable to any number of issues, including an easing of high gas prices. Yet, I keep reading stories about how abortion has put Republican control of the Senate in jeopardy. Where is the evidence? Which specific Senate race has turned on Dobbs? In Pennsylvania, where even the Democratic Party’s senator still pretends to be pro-life, polls show Dr. Oz tightening the race against John Fetterman. Herschel Walker seems to be gaining on Raphael Warnock. As has Adam Laxalt on Cortez Masto.

The evidence that Dobbs has been a critical factor in undermining Republican fortunes is unconvincing in other areas, as well. Reuters finds that only 8 percent of Democrats view “the end of national abortion rights” as their most important issue. Most other polling comes to similar conclusions. Were any of these people going to vote for Republicans to begin with? Conservative enthusiasm remains high. Historically midterms during the first term of a new president are tough on any administration. Despite the White House’s risible contention that the economy is humming, few people buy it. A new Marist poll finds that 62 percent of Americans believe we’re in a recession. The economy is, by far, the top concern of voters.

After decades of indoctrination on abortion “rights,” it’s also almost surely the case that a majority of Americans were under the impression that overturning Roe would mean a national ban on abortion. One recent poll found that 52 percent of registered Democrats still believe the Supreme Court outlawed abortions in the United States. The realization that this isn’t so may also temper any outrage over Dobbs. Then again, even if it didn’t, it would be worth it.

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Religious University Forced To Recognize LGBT Student Club Takes The Fight To SCOTUS

Religious University Forced To Recognize LGBT Student Club Takes The Fight To SCOTUS

Must religious institutions abandon certain core tenets to operate in the public square? That question is at the heart of yet another lawsuit arising from the tensions between religious liberty and anti-discrimination laws.

This week, New York’s Yeshiva University — an Orthodox Jewish university — filed an emergency application to the U.S. Supreme Court after a state supreme court judge ordered the school to recognize an LGBT student group in violation of its religious beliefs regarding sexual morality. Yeshiva has asked for a stay of the lower court decision’s ruling pending their appeal. In the alternative, it has asked for a petition for writ of certiorari so the high court can order briefing and arguments and consider the full case on its merits. 

Yeshiva maintains that the “message of Torah on [the LGBT] issue is nuanced, both accepting each individual with love and affirming its timeless prescriptions.” Accordingly, although Yeshiva admits LGBT students, as it is “wholly committed to and guided by Halacha and Torah values,” it cannot lend its “own name or seal of approval” to clubs that appear “[in]consistent with [its] Torah values.” Likewise, Yeshiva has declined to approve “proposed student clubs involving shooting, videogames, and gambling,” as well as a proposed chapter of the Jewish fraternity Alpha Epsilon Pi.

The case, YU Pride Alliance v. Yeshiva University centers not on whether Yeshiva’s decision to decline to recognize the student club was a religious one since all parties agree that it was but on whether Yeshiva itself is a religious corporation for purposes of the New York City Human Rights Law. That law prohibits any “place or provider of public accommodation” from discriminating based on, among other things, actual or perceived gender and sexual orientation. 

The plaintiffs argued that Yeshiva had violated the law by refusing to recognize their student group, admitting that in the creation of the group, they sought to alter Yeshiva’s religious environment. Yeshiva countered that it was a “religious corporation incorporated under the education law” as defined in section 8-102 of the human rights law, making it exempt. YU Pride disagreed, and State Supreme Court Justice Lynn Kotler sided with the student group. 

Yeshiva’s motto — “Torah Umadda” — reflects its core mission: the pursuit of rigorous religious and secular studies. All students engage in high-level study of Hebrew scripture, the Talmud, and the vast corpus of Jewish texts. The academic calendar is in harmony with the Jewish calendar, observing the Sabbath and all Jewish holy days. The campuses are sex-segregated in accordance with Jewish law, the food offered is strictly kosher, doorways have mezuzot affixed, and each student has a mashgiach ruchani (spiritual advisor).

Yet despite these facts, Kotler ruled in June that the Manhattan-based university was not organized as a “religious corporation” and was therefore subject to the New York City Human Rights Law. For her conclusion, she relied on amendments to Yeshiva’s 1967 charter declaring that it was “an educational corporation under the education law of the State of New York … organized and operated exclusively for educational purposes.” She added that, in addition to Yeshiva’s failure to organize for expressly “religious purposes” as required under New York Law, the university confers “many secular multi-disciplinary degrees,” making education Yeshiva’s primary purpose. In the judge’s view, it seems “educational purposes” include neither religious education nor the use of secular education for religious purposes.

Kotler issued a permanent injunction against the university, ordering it to immediately grant the YU Pride Alliance “full and equal accommodations, advantages, facilities, and privileges afforded to all other student groups at Yeshiva.” Yeshiva’s two motions to stay the injunction were denied by New York appellate courts.

A forthcoming law review article by Emory University Law Professor Michael J. Broyde explains how universities that incorporate under secular charters face challenges in claiming the religious status that might exempt them from otherwise generally applicable anti-discrimination laws.

These “secularly chartered but religiously motivated” universities are often caught in a pickle: discrimination against funding religious institutions leads to a financial need for a secular charter. But then a secular charter leads to difficulty in receiving a religious exemption from anti-discrimination laws.

There should be no pickle. As Chief Justice John Roberts opined in Espinoza v. Montana Department of Revenue (2020), “A state need not subsidize private education. But once a state decides to do so, it cannot disqualify some private schools solely because they are religious.” To discriminate against them by requiring them to choose between their religion or access to public funding for which they would otherwise qualify as “odious to the Constitution.” The same standard should apply to religious universities.

But despite whatever ambiguity might currently exist in these scenarios, Yeshiva argues that it is a university’s religious status that ought to win the day.

In Yeshiva’s emergency petition to the Supreme Court, Eric Baxter of the Becket Fund for Religious Liberty argued that the state court “cursorily rejected” its First Amendment Free Exercise Clause claim. He argued that the school is quintessentially religious, writing that the entire Yeshiva undergraduate experience is designed to form students in the Jewish faith. 

Baxter continued: 

[W]hen the secular authorities of New York purport to overrule the religious authorities at Yeshiva — and when the civil courts insist the First Amendment has nothing to say about the matter — something has gone terribly wrong. And when those courts also insist upon ‘immediate’ obedience by religious authorities to civil ones, this Court’s intervention is urgently needed to preserve the status quo and protect Applicants’ religious character, at least until such time as this Court can consider the case on its merits.

Among the questions presented to the Supreme Court, Yeshiva asks whether the New York law can override Yeshiva’s religious judgment on what groups to recognize. It also queries whether the New York law is “neutral” and “generally applicable” as required by Employment Division v. Smith (1990), and alternatively, whether Smith ought to be overruled.

This is the second time Employment Division v. Smith has made an appearance at the Supreme Court in as many years. In 2021’s Fulton v. City of Philadelphia, the court clarified that under Smith, a law may burden religion if it is neutral and generally applicable, but if not, then the burden on religion must be justified by a compelling government interest. Ultimately, the Fulton Court held that the city’s refusal to contract with a Catholic foster service agency was not pursuant to a neutral and generally applicable law because its policy allowed for exceptions to the anti-discrimination requirement at the sole discretion of the Philadelphia Commissioner. 

Yeshiva’s emergency application was filed with Justice Sonia Sotomayor, who handles emergency matters in the Second Circuit. She can rule on the application or refer it to the full court. Defenders of the free exercise of religion in public life should pay close attention to what the court does next.

Sarah Parshall Perry is a senior legal fellow in The Heritage Foundation’s Meese Center for Legal and Judicial Studies. Jason Bedrick is a research fellow at Heritage’s Center for Education Policy.

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Arizona Supreme Court Election Integrity Wins over Soros Ballot Measure

Arizona Supreme Court Election Integrity Wins over Soros Ballot Measure

Supporters for election integrity scored a major victory Friday when the Arizona Supreme Court held that Proposition 210 — a ballot initiative to undo Arizona’s new election integrity law, financed with George Soros’s money — cannot be on the November ballot due to a lack of valid signatures.

Arizona is one of the states that, in the aftermath of the 2020 election, decided that statutory reforms were needed to make it easy to vote, but hard to cheat, to increase public confidence in the election result.

Under the Arizona Constitution, laws passed by elected legislatures can be overridden by ballot initiatives. Many of these initiatives impose measures that lawmakers reject after careful consideration. One such example of a left-wing initiative was Arizona’s forced taxpayer funding of political campaigns, which the U.S. Supreme Court struck down as an unconstitutional violation of the First Amendment in Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett (2011).

Billionaire activist George Soros largely funded the latest effort to override the elected legislature in the Grand Canyon State as his Open Society Foundation, as well as another activist group called Way to Win — which claims credit for Democrat victories in 2020 — funded a ballot initiative through a left-wing group with the euphemistic name: Arizonans for Free and Fair Elections. The well-financed activists submitted over 475,000 signatures.

Conservatives challenged the validity of these signatures. After a round of litigation, the Arizona Supreme Court sent the matter back to a Maricopa County judge for a final assessment. The trial judge held last week that the organizers had barely met the necessary 239,926 signatures, clearing that hurdle by only a couple thousand votes.

But on appeal again to the Arizona Supreme Court, the justices held on Thursday that they were “unable to verify the validity rate used by the trial court” and ordered the trial judge to explain his calculation by midday Friday. When the trial judge failed to justify his calculations, the Arizona Supreme Court concluded that the ballot initiative did not have enough legal signatures to proceed to November’s election.

“The irony is rich, because signature verification is a standard election integrity requirement,” former Ohio Secretary of State Ken Blackwell, chairman of the Center for Election Integrity at the America First Policy Institute (AFPI), exclusively told Breitbart News. “To have a ballot measure regarding elections not approved for the ballot because not enough legal voters supported it is precisely the sort of the thing that the Left aims to disallow. The fact that the ballot measure in question was designed to eradicate such election safeguards highlights the importance of those safeguards.”

The successful challenge to the Soros-backed initiative was a coalition effort. The lawsuit was filed by Scot Mussi, president of the Arizona Free Enterprise Club — the same organization that won a U.S. Supreme Court victory against another election ballot initiative in 2011. Mussi was supported in his efforts by Jason Snead of the Honest Elections Project, Jessica Anderson of Heritage Action, and other election integrity proponents like Blackwell and former Virginia Attorney General Ken Cuccinelli.

“This victory proves that the American people are more powerful than militant liberal activists like Soros, who is trying to fundamentally transform America,” Blackwell added. “The United States is a center-right nation, and while hundreds of millions of dark money dollars may distort democracy by astroturfing issues and gaslighting voters, the American people have enough sense and principle that such efforts can be defeated.”

Had it succeeded, the Soros-backed measure would have repealed Arizona’s election integrity laws for the 2024 presidential election.

Breitbart News senior legal contributor Ken Klukowski is a lawyer who served in the White House and Justice Department.


How SCOTUS Rained On The Left’s Anti-Religious Legal Parade And Reclaimed The First Amendment

The Supreme Court’s latest momentous term delivered major victories for religious freedom. 

The ability to freely exercise one’s religious beliefs is one of the most essential rights enshrined in the U.S. Constitution by our Founding Fathers. It distinguishes America as a free nation. Yet many governmental institutions — from schools to cities and states — have curtailed this constitutionally-protected right by misrepresenting the First Amendment. 

The rulings in three cases this term, Carson v. Makin, Kennedy v. Bremerton School District, and Shurtleff v. Boston, corrected decades of misinterpretation and applied the First Amendment as originally intended. Predictably, some progressive legal scholars referred to the rulings as “hypocrisy” and “regressive decision-making” spurred by the “religious right.” But such hyperbolic characterizations minimize the problems that pervaded religious liberty jurisprudence. The decisions in these cases are indeed consequential, but only as a remedy proportionate to the issues they resolved. 

The First Amendment states, “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof.” Otherwise known as the Free Exercise and Establishment Clauses, these words were meant to protect the expression of faith but have, ironically, been used as a basis for religious discrimination.

This paradox was clearly evident in Carson v. Makin. In this case, the justices evaluated Maine’s Town Tuitioning Program, which provided state aid to students living in towns without public schools. The program supported education at secular schools only; faith-based institutions and their students were prohibited from receiving funding. This unmistakably biased policy adversely affected specific groups of students and needlessly deprived them of a values-aligned education. While the state attempted to distinguish between discrimination based on religious status and identity, both prevent students from freely exercising their faith. Discriminating against schools with religious instruction is simply discrimination against religion. 

It was not surprising that the justices agreed with this view since they reached a similar judgment in analogous cases. Referring back to Trinity Lutheran Church v. Comer and Espinoza v. Montana, Chief Justice John Roberts, writing for the majority, plainly indicated that the “Free Exercise Clause forbids discrimination on the basis of religious status.” Roberts concluded that “there is nothing neutral about Maine’s program. The State pays tuition for certain students at private schools — so long as the schools are not religious. That is discrimination against religion.” 

But this wasn’t the only triumph for religious liberty this term. In Shurtleff v. Boston, the justices unanimously decided that the City of Boston’s refusal to fly Camp Constitution’s “Christian flag” was a violation of the First Amendment. Boston denied the request because it believed flying a religious flag at City Hall could violate the Establishment Clause, a claim that the justices rejected. In his concurrence, Justice Neil Gorsuch wrote that although the city got the Establishment Clause “so wrong … some of the blame belongs here and traces back to Lemon v. Kurtzman” since “[it] sought to devise a one-size-fits-all test.” The “Lemon test” was a judge-created standard used to determine if a law or government activity constituted entanglement with religion. This standard persisted for decades, even though it failed to provide a reliable metric by which judges could evaluate Establishment Clause cases.

A month after the ruling in Shurtleff, the court retired the Lemon test in Kennedy v. Bremerton School District. This case was centered around Joseph Kennedy, a football coach who regularly prayed in the middle of the field after games. The district claimed that a “reasonable observer” could misconstrue his actions as the school sponsoring religion and subsequently put him on paid leave and allowed his contract to expire.

Like the other cases, the justices were not persuaded, recognizing that the school’s actions betrayed an erroneous understanding of the First Amendment. Echoing his sentiments in Shurtleff, Gorsuch wrote in the majority opinion that the court “long ago abandoned Lemon” and that, in its place, judges would now interpret the Establishment Clause with “reference to historical practices and understandings.” This means that courts are no longer encumbered by the Lemon test, a significant stumbling block that prevented courts from adjudicating Establishment Clause cases fairly and consistently under the law.

The government ought not to show preference for any faith, but it should also not disadvantage individuals based on religious identity. Unfortunately, this is exactly what happened: The government warped the First Amendment so severely that it turned what was intended to be the protection of a fundamental right into a license to discriminate. To that end, this trio of rulings, far from “regressive decision-making,” promoted equality by liberating the First Amendment’s religious liberty protections. This is good for everyone.

Rachel Chiu is a policy fellow at the Committee for Justice, visiting fellow at the Independent Women’s Forum, and a contributor for Young Voices. Follow her on Twitter @rachelhchiu.

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NYT Op-Ed: Throw out the ‘Broken Constitution’ and ‘Reclaim America’

NYT Op-Ed: Throw out the ‘Broken Constitution’ and ‘Reclaim America’

The “broken” and “famously undemocratic” U.S. Constitution “stands in the way” of “real” freedom and democracy, according to a New York Times op-ed by two Ivy League law professors.

The pair issued a call to “radically alter the basic rules of the game” by no longer requiring us to “justify our politics by the Constitution.”

A Friday New York Times essay, titled “The Constitution Is Broken and Should Not Be Reclaimed,” and penned by law professors Ryan D. Doerfler of Harvard and Samuel Moyn of Yale, claims when liberals “lose in the Supreme Court” they often blame justices for misreading the Constitution, yet in reality, “struggling over the Constitution has proved a dead end.”

“The real need is not to reclaim the Constitution, as many would have it, but instead to reclaim America from constitutionalism,” the authors assert, as they attack the “some centuries-old text.”

The essay also claims that constitutions, and “especially the broken one we have now,” direct us to the past, something that “aids the right” which tends to stick “with what it claims to be the original meaning of the past.”

Though liberals have attempted to “reclaim” the Constitution for half a century, the essay claims they have “agonizingly little to show for it” while calling to “radically alter the basic rules of the game.”

The authors also criticize progressives for attempts to “regain ownership of our founding charter,” mistakenly attributing the problem to the Supreme Court’s “hijacking” of the Constitution rather than the charter itself. 

“[E]ven when progressives concede that the Constitution is at the root of our situation, typically the call is for some new constitutionalism,” they write.

Calling the current Constitution “inadequate” and “famously undemocratic,” the authors wonder why progressives bother to “justify our politics by the Constitution or by calls for some renovated constitutional tradition.”

“It would be far better if liberal legislators could simply make a case for abortion and labor rights on their own merits without having to bother with the Constitution,” they add.

File/1787: Signing of the Constitution of the USA. (Photo by MPI/Getty Images)

Accusing “constitutionalism” of “leaving democracy hostage to constraints that are harder to change than the rest of the legal order,” the essay argues the way to seek “real freedom” will be a “new way of fighting within American democracy” with a “more open politics of altering our fundamental law,” suggesting that the Constitution be made “more amendable” than it currently is.

“One way to get to this more democratic world is to pack the Union with new states,” the authors write. “Doing so would allow Americans to then use the formal amendment process to alter the basic rules of [politics] and break the false deadlock that the Constitution imposes through the Electoral College and Senate on the country, in which substantial majorities are foiled on issue after issue.”

However, the authors state, Congress could “openly defy” the Constitution to “get to a more democratic order,” with the basic structure of government being “decided by the present electorate, as opposed to one from some foggy past.”

“A politics of the American future like this would make clear our ability to engage in the constant reinvention of our society under our own power, without the illusion that the past stands in the way,” they conclude.

The piece comes as many on the left continue to attack the epic founding governmental document.

File/Facsimile of the Preamble of the United States Constitution. (Getty)

Last month, a Rasmussen Reports survey revealed that most Democrats believe the U.S. Constitution is fundamentally “racist” and “sexist.”

According to the report:

Most of President Joe Biden’s strongest supporters are in favor of rewriting the Constitution. Among voters who Strongly Approve of Biden’s job performance as president, 54% at least somewhat agree that the Constitution “should be mostly or completely rewritten.” By contrast, among voters who Strongly Disapprove of Biden’s performance, just 10% agree that the Constitution should be rewritten and 81% Strongly Disagree with rewriting the Constitution.

Also last month, Georgetown University Law School Professor Rosa Brooks stated that Americans were “slaves” to the U.S. Constitution which was written by “a tiny group of white slave-owning men.”

In May, President Joe Biden, while pushing for more gun control, told reporters that “the Constitution, the Second Amendment was never absolute.”

In March, MSNBC panelist and The Nation‘s justice correspondent Elie Mystal called the Constitution “trash” written by the “captains of the slaving industry.”

 He also said the Founding Fathers were “racist, misogynist jerkfaces” and spoke of the importance of critiquing the origins of the Constitution, which he described as “not great” and often “working purposefully towards those not great outcomes.”

In 2020, University of Texas at Austin Constitutional Law Professor Richard Albert argued that the United States should revise the Constitution to remove “racist” and “gendered” language. 

Follow Joshua Klein on Twitter @JoshuaKlein.


Two Amendments That Are Trump’s Friend

Two Amendments That Are Trump’s Friend

These Two Amendments Are Trump’s Friend Right Now

By: Ned Barnett

The recent Mar-a-Lago raid will go down in history as one of the more egregious violations of any individual’s constitutional protections. Objective future historians will view this as an outrageous abuse of the tradition that former presidents be treated with the decorum due their office. This document seizure, conducted under false pretenses, is unprecedented.

Only two other presidents have ever faced impeachment: Andrew Johnson and Bill Clinton. Both were believed by the then-majority party in the House to have committed “high crimes and misdemeanors.” Yet neither of these men was convicted, nor afterward subject to inappropriate searches and seizures.

This is why this absurd violation of Trump is unprecedented — a word meaning “it’s never happened before.” The U.S. attorney general (A.G.), the FBI, and the federal Judiciary have all done themselves and our country irreversible harm. Absent a Supreme Court ruling, legal precedents like this, once established, have a nasty way of remaining precedents.

In the future, any A.G., with the complicity of the FBI and just one federal judge, will be permitted to do the same thing to anyone, all in the name of whatever faux reason they can “trump up.”

However, Trump has a constitutional option to overturn this outrageous search. Any fair court must recognize that this search was “permitted” by a bogus warrant, issued by a radical Obama judicial appointee, U.S. Magistrate Bruce Reinhart, based on counter-factual information from a single unreliable “insider.”

This judge previously represented men involved with the Jeffrey Epstein pedophilia sex ring. Before becoming a judge, Reinhart financially supported far-left Democrats. Even left-leaning USA Today reported, “In response to Reinhart’s newfound notoriety, his biography and contact information have been removed from the website of the U.S. District Court for the Southern District of Florida.”

If this smells to you like a cover-up, you aren’t wrong.

If Trump is going to get justice, he’ll need to do so through higher courts, ultimately leading him to the Supreme Court.

What are the grounds for the court to overturn the warrant, disallowing all “information” seized? Trump has three claims under the Bill of Rights, under the Fourth and Fifth Amendments.

The Fourth Amendment offers two protections for President Trump. Here’s what the Fourth Amendment says: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated[.]”

Whenever an action, such as a search and a seizure, is considered “unprecedented” — another way of saying it’s never happened before — it’s reasonable to argue that “unprecedented” is another word for “unreasonable.” Can anyone — absent hyper-partisan anti-Trumpers — honestly contend that the action against Trump’s home and records was reasonable?

Of course not, for several reasons. First, Trump’s been in negotiations with the National Archives over records in the president’s possession. These are destined for the Trump Presidential Library, regardless of who controls them. As quoted on the Trump Library’s website, “The Trump Presidential Library is part of the Presidential Libraries system administered by the National Archives and Records Administration, a federal agency.” The two parties have been trying to negotiate who will actually secure key documents until they can be placed, securely, within the presidential library.

Could anything be more “Washington”?

Or it would be “Washington” if they’d continued to use such tools as subpoenas to force compliance. But Biden’s A.G. chose to weaponize a highly partisan federal judge to sign off on the FBI’s request for a warrant. The FBI has been politicized since 2016, swearing oaths before a FISA judge to obtain court orders for bugging Trump Tower, based on the now-debunked Steele Dossier. Similar hijinks in 2020 may have influenced Trump’s electoral margins in key states.

The Fourth Amendment also decrees that:

“No Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

To date, no mention of what was seized — beyond “a dozen boxes” of…something. Further, the warrant was not presented to Trump’s attorney on site. She was allowed to review it briefly, but not to keep a copy. Nor was that attorney permitted to observe the FBI during the search. Those are two serious violations of procedure. Instead of describing the place to be searched, an FBI agent said the search warrant gave them “full access to everything.”

This is a clear violation of the Fourth Amendment, allowing them — they said — to “scour Melania Trump’s wardrobe” in the Trumps’ master bedroom.

Anti-Trumpers are gloating. Even if no evidence of a Trump documentary cover-up proves true, the FBI can use anything they find as evidence in unrelated actions against Trump. However, if the warrant is ruled unjustified by the Supreme Court, anything the FBI seized would be considered “fruit of a poisoned tree.” It could then not be used as evidence in any criminal case.

To date, nobody other than the FBI and the A.G. know what’s been seized. FBI agents ransacked Trump’s home office for almost ten hours, during which FBI agents spent significant time ransacking Melania Trump’s wardrobe. Just prurient interest? Does the FBI believe that Trump hid classified documents in her lingerie, or perhaps sewed them into designer gowns? Did this all-encompassing warrant really give them the right to plunder her clothing?

What triggered all this? In press coverage on January 20, Trump was seen taking one box of…something…out of the White House, making way for Biden. To date, Trump’s already voluntarily turned over 15 document boxes to the National Archives. Then the FBI seized another dozen. This rivals the “miracle of the loaves and fishes,” or maybe it’s just “New Math,” Washington style.

The president is also protected by the Fifth Amendment. The Fifth Amendment says:

“No person … shall be compelled in any criminal case to be a witness against himself[.]”

There’s another Fifth Amendment clause directly applicable to this FBI search:

“nor shall any person be subject for the same offense be twice put in jeopardy of life or limb[.]”

This latter clause protects us from double jeopardy. Constitutionally, you can’t be tried twice for the same crime. Once found not guilty, the government cannot come back and nail you a second time.

Why is this clause in the Fifth Amendment applicable to President Trump? Simple. As the left-wing news media are reporting, this search is not really about National Archives rules. That’s a fig-leaf excuse permitting the FBI to claim a bogus national security excuse for the search and seizure of we know not what.

These obscure regulations have never been treated as criminal violations. Instead, as the mainstream media claim, this seizure will find proof of Trump’s complicity in the January 6, 2021 “insurrection.”

Recall that President Trump was impeached for his supposed role in the that odd event at the Capitol Building. That impeachment farce was held between January 6 and 20, even though, at noon on the 20th, Trump officially and constitutionally stepped aside as president.

Despite the fact that an impeachment is a trial taking place in Congress instead of the courts, nothing in the Constitution says a failed impeachment does not provide double jeopardy protection.  If this is the real reason for the warrant and search, if what’s been seized will be used to prosecute President Trump once again, the courts will have to throw it out.

There is no vagueness in the Fifth Amendment. In fact, neither the Fourth nor the Fifth Amendment is vague about the rights of any American to be protected from unjustified searches and seizures, leading to criminal prosecution.

While the nation reels from this outrage, and while Melania Trump arranges for her clothes to be fumigated for “bugs,” Trump’s legal team is determining how those sacred rights enshrined in our Constitution will be used to protect President Trump.

The ultimate outcome, should a Republican gain the presidency in 2024, needs to be a major shake-up in both the Department of Justice and the FBI. For too long have these two vital arms of our government been taking orders from the Dark State. It’s time for some sunlight disinfectant.


This Article (These Two Amendments Are Trump’s Friend Right Now) was created and published by American Thinker and is republished here under “Fair Use” (see disclaimer below) with attribution to the articles author Ned Barnett and

TLB recommends you visit American Thinker for more great articles and information.

About the Author: Ned Barnett has been active in Washington for decades. For a dozen years, he served as a grassroots lobbyist supporting conservative health care reform of an over-regulated system, and, representing a coalition of 34 anti–teen drug non-profits, he consulted with the drug czar in implementing a five-year, five-billion-dollar campaign to keep kids off drugs. His efforts brought private-sector support from American businesses. More recently, Barnett — the author of 40 published books, with four more in active development — has supported publishing and book promotion and marketing. Barnett can be reached at 702-561-1167 or [email protected].

Image Credit: Photo (cropped) in Featured Image (top) – by Gage Skidmore, Licensed under Creative Commons Attribution-Share Alike 2.0


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