I appeared this morning on Chicago’s Morning Answer with Dan Proft and Amy Jacobson (no relation). This is one of my favorite shows on which to appear because they are very knowledgeable and prepared, and they give me plenty of time to talk.
We started by talking about Trump’s DEI Executive Orders, and then Joe Biden’s last minute pardon of his family (Hunter was previously pardoned), just 15 minutes before Trump was sworn into office.
My segment starts at 5:40:
Dan Proft (05:40): DEI is out, MEI is in. For more on this, please be joined by William Jacobson, clinical professor of law and director of the Securities Law Clinic at Cornell, founder of legalinstruction.com, and president of the Legal Insurrection Foundation, as well as the Equal Protection Project. Professor Jacobson, thanks, thanks for joining us again. Appreciate it.WAJ (05:59):Thank you for having me back….Proft (06:27):Uh, what about the EO on DEI, you know, as so indicated in Trump’s remarks in his address?WAJ (06:37):Yeah. Well, two things happened after the inauguration, some point last night. One, he signed an order rescinding a whole bunch of Biden executive orders, and including those were two of them for what Biden called his racial equity agenda. So in 2021 and reiterated in 2023, Biden had forced the bureaucracy to implement, call it DEI, call it critical race theory, call it whatever you want, but racial preferences throughout the government. So those were rescinded. So that’s part number one of what he did.Part number two, in a separate executive order, he ordered the end of diversity, equity, and inclusion in the federal government. A fairly specific listing, the sort of job titles that can’t exist anymore, prohibiting the use of race and color in hiring and things like that, which of course should have already been the law, except the Biden administration ignored it.So yeah, it, this will have a significant impact on federal programs and federal hiring that elevated racial quotas essentially over merit-based hiring.Proft (07:57):And the legislation that was passed that will go to President Trump’s desk to essentially amend the amendment that the Biden administration made to Title IX to prohibit men from playing girls sports, in federally funded schools … the extent of that Title IX language change, what, what that means for K through 12, what that means for any entity that receives federal funding?WAJ (08:31):I think the important part of that is that it prohibits federal funding being used for any of those purposes. And in all of these things, people need to understand the money is what matters. Federal funding is the elephant in every room in education.And if you prohibit the use of federal funds for those purposes, and you nonetheless do that, you could get $10 million, but if you allocate even $50,000 towards things that are prohibited, you’re putting everything at risk. So that’s an enormous hammer hanging over the heads of the DEI bureaucracy and the gender ideology bureaucracies, that you cannot use federal funds for these purposes.I don’t think his DEI order really went far enough because it really only affected what the federal government does. But the other order, the order on, you know, gender and sexual identities, went even further and it prohibited the use of the funds.So I think that this will have an enormous impact. What you see is you see particularly teachers unions completely disregarding the law using their local political power to push the ideology into the school, teaching things, whatever they want to teach, that now puts the entire district’s funding at risk. So I think this will have an important impact if the federal government and the Department of Justice and the Department of Education actually enforce these things.Amy Jacobson (10:05):So, Mr. Jacobson, let me ask you this, hypothetically, or not evenm this could be a true story. There’s somebody at a public school that’s a male who’s transitioning to be a female and is on the volleyball team, and they refuse to take that player off the team. What will happen to their federal funding?WAJ (10:23):Well, it’s not clear, but it potentially, if it’s their policy to allow that, that would violate this executive order and presumably the amended Title IX rules that would be promulgated, and it would put their funding at risk. Now that’s somewhat the case now, not for gender ideology, but for racial discrimination, which we cover a lot at the Equal Protection Project, where the schools are openly violating the rules. They’re openly violating federal policy. They’re openly violating the Civil Rights Act, and nothing ever happens to them. You know, we file a complaint with the Department of Education, and the school says, okay, we’ll stop doing this. But there’s never an enforcement mechanism vis-a-vis funding.So these are all important things, but they have to be enforced. And that would go whether it’s racial discrimination, whether it’s DEI, whether it’s gender identity, ideology, if the government’s not actually going to pull the money, then the schools won’t change their behavior.Proft (11:23):Presidential pardon power in the wake of the preemptive pardons that Biden issued. Is that something that you would like to see the Supreme Court weigh in on, to provide any guidance as to whether or not there are any limitations, whether it’s the president pardoning himself, whether it’s the matter of these preemptive pardons? Richard Epstein we talked to last week, believes that a compelling argument could be made that preemptive pardons are not within the scope of POTUS pardon power. But of course, this is all a matter for academic discussion at this point.WAJ (12:05):Well, I think you’d have to have somebody who’s prosecuted, not withstanding the pardon, for a case with “standing” to get into the court system. I’m not sure the theoretical passing, you know, of pardons or the theoretical, the issuing of pardons is enough to get it into the courts. But that’s a technical issue.I don’t know the history of the pardon power thoroughly enough to say whether looking back to how it was originally created, this would be outside of it. But my feeling is that you either amend the Constitution and you specify it, or you leave it alone. And I think my inclination is to leave it alone. That we have, whenever you have bad conduct, there may be an inclination to immediately change the Constitution. And,what Biden does is did is really bad conduct, he proved beyond any doubt that there really was a Biden crime family.So we all used to say Biden crime family, almost half jokingly, but that’s what it was. We all know it now. We’ll never get the facts of it probably. Just because Joe Biden pardoned the Biden crime family, I’m not sure we need to rush out and change the Constitution. We can condemn it but he pushed everything to the limit, not just in terms of what he did, but the timing. I mean, has there ever been anything done by an outgoing president 15 minutes before the new president had sworn in?Amy Jacobson (13:38):Are you surprised he didn’t pardon himself?WAJ (13:42):Well, I think he knows, because the Justice Department has already basically said, or the special counsel has said, he’s not mentally competent to stand trial.So no, I don’t think Joe Biden himself is worried about getting prosecuted. They literally would be putting an empty shell on the stand. So I don’t think he’s worried about himself. He’s obviously not worried about Jill, Dr. Jill, so-called Dr. Jill, she probably didn’t have involvement in those things, but his whole other family did. I mean, this is not something recent. For decades that family has been using his positions of power to enrich the family. I mean, everybody knows that, they know it now. And so, yeah,But I’m not ready yet to rush out and change the Constitution just because Joe Biden proved that he is the Joe Biden we warned everybody about.Proft (14:41):Professor William Jacobson and clinical professor of law and director of the Securities Law Clinic at Cornell, founder of legalinsurrection.com, president of the Legal Insurrection Foundation and the Equal Protection Project. Professor Jacobson, thank you as always.
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