Author/contributor
Paul Jebely
Partner
This client alert was originally intended for Sterlington clients only, but given the significance and fast‑moving nature of the issue, we are making it available more broadly.
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No, really.
For the second time in my career, two worlds I never expected to meet have collided. My day job as a private aviation attorney for a rather large cadre of folks in “0.0004% Club” and a quiet long held fantasy to be a US constitutional law professor – with a southern drawl, but I digress. The last time this happened, it involved Russian oligarchs. This time, it involves Americans – all of them.
Last night, the US President decreed via social media that “we are hereby decertifying” all Bombardier Global Express aircraft and “all Aircraft made in Canada” until Canada certifies certain Gulfstream models – which, like their Bombardier counterparts, happen to be truly awesome flying machines made by a great company, fully capable of standing and selling on their own anywhere. He also threatened 50% tariffs on any Canadian aircraft sold into the US. The statement was explicit, present-tense, and framed as an immediate executive act.
For better or worse, this is simply not how the whole “law thing” works in the United States of America, and it represents a constitutional problem that extends far beyond owners of US-registered Bombardier private jets – though they are right now, intentionally or otherwise, the ones in the crosshairs of the Executive Branch of the US government.
The bigger picture is this: a presidential decree issued by social media to decertify Bombardier aircraft is an extraordinary act of executive overreach that, in practical effect, it amounts to a categorical regulatory taking of constitutionally protected property interests held by a defined group of American property owners. Yes, they happen to be private jet owners. That is beside the point. The Constitution does not calibrate its protections by net worth. What is chilling, even by today’s standards, is how casually it can come to be that settled property rights can be erased by executive fiat, untethered from safety, statute, or process. That should make everyone pause.
The Constitutional Architecture (in Plain English, I Promise)
The Fifth Amendment contains a provision that reads: “nor shall private property be taken for public use, without just compensation.” For most people, this is the “Takings Clause” – shorthand for the idea that if the government wants your things, it has to pay for it. But here’s what makes this worth your attention even if you don’t own a Bombardier private jet: the doctrine that governs when a regulatory action becomes a taking is one of the most consequential frameworks in American law, and almost no one talks about it until it affects them personally.
There are two principal legal tests. The first is “Lucas”, which holds that if a regulation strips away all or essentially all economic value from your property, it’s a taking – full stop. No compensation required by the government, no grandfather clauses, no “yeah, but we were trying to do something good.” The regulation destroys the value; it violates constitutional rights; and the government must pay up.
The second is “Penn Central”, a balancing test that weighs: (1) how severe the economic hit is; (2) whether the regulation interferes with your reasonable, investment-backed expectations when you bought the property; and (3) the character of the government’s action – in particular, whether it looks like a naked land grab dressed up as regulation, or a legitimate exercise of governmental authority.
Decertification and Property Rights
Here’s what matters. Owners of US-registered private jets – Bombardier or otherwise – possess a constitutionally protected property interest in their private jet. Not in some theoretical sense. In actual, quantifiable value, and not just the baseline value of the jets, but also two additional property interests that I think compound the constitutional problem.
First: the FAA airworthiness certificate itself. This certificate represents a government determination that the aircraft meets safety standards and may legally operate in American airspace. Once conferred, it’s an entitlement – owners have reasonable expectations it will remain valid absent genuine safety concerns. That’s a protected property interest.
Second: the right to operate the aircraft in American navigable airspace. By my rough math, approximately 160 Bombardier “Global Express” – variant private jets are registered in the US. Some are used for private owner transportation only; many seem to operate commercially under Part 135 charter, generating revenue streams that depend entirely on that operational certificate. That income-generating capacity is a property interest too.
The Harm that Decertification Does
If the President’s directive were somehow implemented, these aircraft would be grounded. They cannot legally fly in American airspace without certification. A decertified aircraft becomes what we in the biz call a “paper weight” – a collection of parts rather than a functional aircraft. Its value collapses to part-out and scrap metal pricing. But here’s the trap: owners continue incurring carrying costs – finance charges, hangar fees, insurance, maintenance, crew, et cetera.
This scenario – destruction of use value combined with continuing financial obligations – is right out of “Lucas”. The private jet comes to have next to no economically beneficial use. It generates no revenue, provides no transportation, serves no purpose. Its value is destroyed. This is exactly why the Fifth Amendment exists: to stop the government from wrecking property first and explaining itself later.
The Character Problem
While there may be a lot of “character problems” at play here, I am focusing on the legal construct, because that is where it gets legally interesting and constitutionally alarming.
The President’s explicit rationale is trade retaliation. The directive links aircraft decertification to Canada’s alleged refusal to certify Gulfstream models. This is not a safety-based determination. The FAA – the agency with statutory authority over aircraft certification – recently certified the Bombardier Global 8000 in December 2025. These aircraft passed rigorous safety evaluation. Transport Canada has certified Canadian-built aircraft meeting international standards. Using aviation safety certification as leverage in trade disputes is not regulation; it’s using a regulatory apparatus as a negotiation weapon. The character of the action reveals its arbitrary nature.
Under administrative law principles – and these principles constrain all governmental action, not just agency action – government conduct is unlawful when it’s “arbitrary and capricious,” meaning it has no rational connection to a legitimate government purpose or represents a sudden change of mind without motive. Decertifying safe aircraft to pressure a foreign government regarding entirely different aircraft is precisely that: arbitrary and divorced from any legitimate aviation safety purpose.
The Investment-Backed Expectations Angle
Under Penn Central, courts examine whether owners had reasonable expectations that their regulatory status would remain stable. I think the prong is massive here.
Private jet buyers purchase under a settled FAA certification regime developed over decades. Bilateral recognition agreements between the United States and Canada – a framework that’s existed for generations – create reasonable expectations that validly certified aircraft will retain their status absent genuine safety issues. The FAA’s recent Global 8000 certification (just weeks before this declaration) reinforced those expectations.
No reasonable purchaser could anticipate that the President would declare aircraft decertified for geopolitical leverage wholly unrelated to aviation safety. This arbitrary reversal of settled expectations is precisely what the investment-backed expectations prong is designed to capture.
Separation of Powers and Statutory Limits
There’s another layer to this that’s constitutionally crucial: I believe that the President here exceeded his authority under a framework called Youngstown Steel, the foundational case on presidential power.
Congress vested aircraft certification authority in the FAA, not the President. When the President acts pursuant to Congressional delegation, his power is “at its maximum.” When he acts contrary to the expressed intent of Congress – as here, by commandeering a safety agency to achieve trade purposes – his power is “at its lowest ebb.” In that lowest category, he can act only on purely constitutional grounds (Commander-in-Chief authority, treaty power, and et cetera.). Meanwhile, the FAA Administrator, while presidentially appointed, exercises quasi-technical functions under statutory constraints. The statute contemplates safety-based determinations, not political decisions based on international disputes. Once you let politics masquerade as aviation safety, every certificate in the country becomes provisional.
The Broader Principle: When A(nother) Private Jet Owner’s Problem Becomes Yours
Now, if you don’t own a Bombardier private jet, you might think this is someone else’s problem. It isn’t. If the Executive Branch can unilaterally declare aircraft decertified without statutory authority, to achieve trade objectives unrelated to safety, then any regulatory system is vulnerable to political capture for unrelated ends. This converts certification into a weapon rather than a safeguard. Private jet owners are just the canaries here, and in my view that the mine belongs to every regulated industry in America.
Why this Moment Matters
We live in an era where executive power has expanded substantially. Courts have generally deferred to executive action in foreign affairs and trade matters. But the Fifth Amendment doesn’t defer. It provides an absolute prohibition: no taking without just compensation. That prohibition is enforceable regardless of executive rationale.
This situation presents a unique moment where constitutional law of property rights intersects with separation of powers, where the fairness principle meets authority limits set on the Executive Branch.
The broader issue is whether regulatory systems designed for specific purposes – safety, market function, environmental protection – can be wielded, via social media or otherwise, for unrelated political purposes without compensation to those whose property is destroyed. That question affects not just private jet owners but the entire ecosystem of regulated industries.
The law, properly understood and properly applied, protects property rights and limits executive power. Whether those principles will prevail in this context is an open question that may be answered in courtrooms over the coming months if the Executive Branch does not immediately walk back the “decertification”. The principles at stake extend far beyond Bombardier private jets. They are worth calling out and, if necessary, defending through the courts. My colleagues and I stand ready to do both.