Ilya Somin, Author at Reason.comThe leading libertarian magazine and covering news, politics, culture, and more with reporting and analysis.(c) Reason
2024-03-28T10:03:11Z https://reason.com/feed/atom/WordPressIlya Sominhttps://reason.com/people/ilya-somin/isomin@gmu.eduhttps://reason.com/?post_type=volokh-post&p=82707032024-03-27T19:42:49Z2024-03-27T19:42:49Z
Earlier today, the US Court of Appeals for the Fifth Circuit ruled against Texas in a case where the federal government challenged the legality of the state's SB 4 immigration law. SB 4 is a new state law that criminalizes unauthorized migration, expands state law enforcement officials' powers to detain undocumented migrants, and gives Texas courts the power to order removal of migrants convicted under the law.
Today's decision is not a final ruling on the merits. Technically, all it does is uphold the district court's preliminary injunction blocking enforcement of the law until the courts reach a final decision in the case. However, one of the factors courts assess in deciding whether a preliminary injunction is warranted is "likelihood of success on the merits." And in analyzing that factor, the judges made it clear they think SB 4 is in fact illegal, and Texas deserves to lose.
Most of Chief Judge Priscilla Richman's majority opinion in the Fifth Circuit focuses on whether SB 4 is preempted by federal immigration law. For example, she concludes that the law's provisions on detention and removal conflict with federal laws granting many undocumented migrants the right to remain in the United States while they apply for asylum.
But the majority also rejected Texas's argument that the state has the power to enact SB 4 because illegal migration and cross-border drug smuggling qualify as an "invasion:"
Texas asserts that Article I, § 10 of the Constitution (the State War Clause) permits some applications of S. B. 4. The State War Clause provides:
No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.
Specifically, Texas contends that, at a minimum, S. B. 4's application to transnational cartel members is a constitutionally authorized response to an "invasion."
But Texas does not demonstrate why it would be entitled to vacatur of the preliminary injunction. Constitutional text, structure, and history provide strong evidence that federal statutes addressing matters such as noncitizen entry and removal are still supreme even when the State War Clause has been triggered. Such statutes do not pertain to laying any duty of tonnage; keeping troops or ships of war in time of peace; or entering into any agreement or compact with another state or a foreign power….
Texas has not identified any authority to support its proposition that the State War Clause allows it to enact and enforce state legislation regulating immigration otherwise preempted by federal law. One would expect a contemporary commentator to have noticed such a proposition. Instead, in The Federalist No. 44, James Madison glossed over the portion of the State War Clause at issue here by writing: "The remaining particulars of this clause fall within reasonings which are either so obvious, or have been so fully developed, that they may be passed over without remark…"
Thus, we cannot say Texas has persuaded us that the State War Clause demonstrates it is likely to succeed on the merits.
Thus, the Fifth Circuit rejected Texas's Invasion Clause argument (the clause in question is also sometimes called the "State War Clause"). I think this is the right result for reasons I outlined in a recent Lawfare article, and also in my amicus brief in United States v. Abbott, another case before the Fifth Circuit, where Texas has raised the same argument.
But the Fifth Circuit's discussion of the issue is fairly brief and cursory, and doesn't always make the right points. In particular, if illegal migration really does qualify as an "invasion" that "triggers" the Invasion Clause, the text suggests a state really could "engage in war" in response—even if federal law otherwise forbade it to do so. And war powers might include the power to detain or deport citizens of the enemy nation from which the migrants came.
The Fifth Circuit is nonetheless right to conclude that Texas has "failed to provide authority to support its proposition that the State War Clause allows it to enact and enforce state legislation regulating immigration otherwise preempted by federal law." But that's because there is no good evidence indicating illegal migration or drug smuggling qualify as "invasion." The text and original meaning undermine any such notion. A state facing such issues may have various problems. But it has not been "actually invaded."
While the Fifth Circuit reached the right conclusion on the invasion questions, the District Court did a much better and more thorough job of analyzing the relevant issues.
Judge Andrew Oldham filed a lengthy dissenting opinion, most of it devoted to the preemption issues, and to the argument that SB 4 might be legal in at least some applications. But interestingly, he does not consider the "invasion" argument, except to briefly note that the district court rejected it.
For those keeping score, Chief Judge Richman is a conservative George W. Bush appointee. Judge Irma Ramirez, the other judge joining her opinion, is a recent Biden appointee. Judge Oldham is one of the most conservative judges on the Fifth Circuit, appointed by Trump.
In sum, SB 4 is likely to remain blocked for some time to come, even as litigation in the case continues. This—for the moment—concludes a saga in which the Fifth Circuit imposed a temporary "administrative stay" on the district court injunction, the Supreme Court refused to lift it, but the Fifth Circuit itself dissolved the stay within hours, leaving the injunction in place until the court could consider it further.
The Fifth Circuit has now upheld the preliminary injunction, which means the law will remain blocked until the court reaches a final decision in the case or—less likely—the injunction is lifted by the en banc Fifth Circuit or the Supreme Court.
Litigation in this case is going to continue. But today's ruling strongly suggests the Fifth Circuit—like the district court—is inclined to rule against Texas on the merits. That, too, of course, might be reviewed by the en banc Fifth Circuit or by the Supreme Court.
Meanwhile, the "invasion" issue will be before the Fifth Circuit again in United States v. Abbott, which will heard by the en banc court (with all seventeen active judges participating) in April.
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Flag of Texas.Ilya Sominhttps://reason.com/people/ilya-somin/isomin@gmu.eduhttps://reason.com/?post_type=volokh-post&p=82705322024-03-27T04:29:12Z2024-03-26T21:13:04Z
In recent weeks, there has been a lot of media coverage of squatters' rights laws that sometimes have the effect of blocking property owners from removing trespassers who occupy their houses without the owners' permission. Newsweek describes some highly publicized recent cases:
A recent string of incidents in Georgia, New York and Washington has brought squatting, the practice of occupying someone else's property without their consent, into the spotlight.
In Washington, a squatter named Sang Kim made headlines after preventing Jaskaran Singh, a landlord, from possessing his $2 million property following Kim's refusal to pay rent for two years.
Earlier in March, a New York property owner was arrested over unlawful eviction after confronting a group of alleged squatters who had taken over her deceased parents' home in Flushing, Queens, ABC 7 reported. While the woman held the property's deed, one man said he was on a lease for the house—which meant the property owner was barred from kicking him out [he, in fact, did not actually have a lease].
That same month, David Morris, a landlord in Atlanta, told Fox 5 of a group of squatters who were preventing him from building affordable housing on his nine-acre land and whom he was unable to remove because of a moratorium on evictions.
Morris told the outlet he had agreed to let four people stay on the land without paying rent about 10 years ago, but that he found the number of people occupying the property had grown to about "30 campers." Though the squatters were taken away from the land, Morris said he spent $10,000 to clean up their garbage.
John Stossel of Reason made a video focusing on the New York case.
As often happens when an issue attracts media attention, it is hard to tell from early reports how widespread the issue actually is. But even a few cases of successful squatting may be problematic, because they could incentivize imitation. Media attention could accelerate that process.
Ideally, state and local governments should make it easy for property owners to swiftly remove squatters, and should subject the trespassers to civil and criminal sanctions. But where they instead facilitate this violation of property rights, the laws that do so violate the Takings Clause of the Fifth Amendment, which requires payment of "just compensation" whenever the government takes "private property."
In Cedar Point Nursery v. Hassid (2021), the Supreme Court ruled that even temporary government-authorized physical occupations of private property are "per se" (automatic) takings. Thus, the Court struck down a California law requiring agricultural growers to give union organizers access to their land for three hours per day, 120 days per year. At least some state squatter rights' laws are considerably more egregious than that: They enable squatters to completely occupy the property for many weeks or months on end, totally excluding the owner in the process. That is particularly true of New York City's law, which gives squatters who claim to be tenants strong rights against removal if they have been on the property for at least 30 days. Landowners seeking to remove the squatters after that point must go through an eviction process, which can take as long as two years.
Chief Justice John Roberts' opinion for the Court in Cedar Point does outline some exceptions to the rule that state-mandated physical occupations qualify as takings. But squatter rights don't fall within any of them. For example, the squatters pretty obviously aren't government employees conducting health and safety inspections.
Squatters could perhaps argue that their activities fall within what the Court called "traditional common law privileges to access private property." The common law does recognize the right to claim property through "adverse possession." But traditional common law precedent permits that only after squatters have had continuous exclusive possession of the land for a long period of time (usually five years or more), and only if the owner made no effort to assert his or her rights during that time. The New York City law and others like it go way beyond that.
The Takings Clause may not be the best possible remedy for this situation. Filing and winning such a case could take many months. And if property owners do prevail, they generally get only the "fair market value" of the rights lost, which may not fully compensate all of their losses. However, this avenue can provide at least some valuable redress; the longer the squatters remain, the greater the amount of compensation the government will have to pay. And fear of takings liability may incentivize state and local governments to repeal or tighten up the laws that cause the problem.
Legal issues aside, it's worth noting that squatters' rights laws end up harming the very people they are supposed to help: low-income tenants. If property owners have reason to fear that squatters can occupy their land without their consent, they will be less willing to rent property to begin with, charge higher rents, screen potential tenants more carefully (thereby potentially excluding those with low income, few or nor references, and the like), or some combination of all of these measures. They may also be incentivized to impose more costly and elaborate security restrictions on access to land (which in turn is likely to raise rents). All of this predictably reduces the availability of housing and increases its costs.
I hope property owners and public interest law firms give serious consideration to bringing takings challenges against these laws. They are not a panacea for the problem. But they could help.
UPDATE: Prominent takings expert Robert Thomas (Pacific Legal Foundation) comments on this post at the Inverse Condemnation Blog:
In other cases where the courts have upheld regulations and restrictions on an owner's right to recover possession from an actual tenant—you know, someone with whom the owner actually and expressly agreed, and then transferred the right to exclude to the tenant—the courts frequently note that "no one is forcing you to become a landlord."
Well here, the owner is being forced to become a landlord.
Professor Somin wraps by noting, "I hope property owners and public interest law firms give serious consideration to bringing takings challenges against these laws. They are not a panacea for the problem. But they could help."
Since we are part of a non-profit, pro bono, public interest law firm as the good professor describes, we shall note here that the welcome mat is out, and if the above-situation is your situation, let us know.
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Ilya Sominhttps://reason.com/people/ilya-somin/isomin@gmu.eduhttps://reason.com/?post_type=volokh-post&p=82704682024-03-26T19:16:00Z2024-03-26T19:16:00Z
Professor Philip Hamburger has posted a response to my critique of his post on the social media free speech cases currently before the Supreme Court. The latter, in turn, responded to my earlier argument that courts should focus on coercion in Murthy v. Missouri. For those keeping track, this is now the fifth post in this series.
In his latest post, Prof. Hamburger accuses me of repeating my "errors." But I remain unrepentant. It is in fact Hamburger himself who has doubled down on his mistakes.
Most notably, he continues to neglect the significance of the fact that the First Amendment protects "freedom of speech." By its very nature, freedom is voluntary choice. Therefore, it cannot be restricted in the absence of some kind of coercion. That's true even if Prof. Hamburger is right (as he surely is) to describe the Free Speech Clause of the First Amendment as a "limit on government." The limit it imposes on government is preventing it from using compulsion to restrict speech. By contrast, it does not prevent the government from using persuasion to influence private speech, or from engaging in coordination with private speakers.
Prof. Hamburger continues to emphasize the fact that the First Amendment bans "abridging" of freedom of speech, as opposed to the ban on "prohibiting" freedom of religion. I agree this means free speech gets somewhat greater protection than religious freedom does. But the thing that it is protected against must still be some form of compulsion. Absent compulsion, there can be no restriction of freedom. the distinction in wording just means that relatively mild forms of coercion that may not rise to the level of "prohibition" might still qualify as "abridgement."
Hamburger claims my view would allow the government to "buy off" its critics. But conditioning government benefits on the exercise of constitutional rights (or refraining from exercising them) raises other constitutional problems. Among other things, it implicates the doctrine of "unconstitutional conditions," which prevents the government (at least in many instances) from discriminating on the basis of speech with respect to the distribution of government benefits. Thus, for example, the government cannot adopt a law restricting Social Security benefits to people who express support for the Democratic Party, or at least refraining from criticizing it. Activities like persuasion or "jawboning" do not qualify as such discrimination.
Prof. Hamburger also doubles down on the dubious claim that social media platforms don't have free speech rights over the material they post on their websites. But, as discussed in my previous post, platforms do in fact exercise editorial control over what speech they allow on their sites, through their terms of service. In that respect, they are similar to media entities like Reason or the New York Times.
Hamburger responds that the platforms sometimes took down speech even without changing their terms of service. But he is missing the point. The existence of terms of service with substantive limitations on the types of speech platforms allow on the site shows that it is not the case that they are "public squares" where anyone can say whatever they want. Rather, they are private property where the owners exercise editorial control over speech. They can do that through terms of service. But, unless prohibited by freely undertaken contractual obligations, they can also do that in other ways.
In his latest post, Prof. Hamburger continues to promote a double standard under which he has an extremely broad view of what is prohibited by the First Amendment when it comes to non-coercive government persuasion to bar social media posts, but a very narrow one with respect to Texas's and Florida's attempts to force social media firms to host speech they disapprove of. He now tries to justify this by claiming that social media platforms are "common carriers." This analogy is badly flawed for reasons I outlined here.
Social media firms have never been legally considered common carriers in the past. And state governments cannot make them so just by legislative fiat. If they could, the same strategy could be used to force other private entities to publish speech they disapprove of, by passing laws declaring them to be "common carriers," as well. Thus, they could force Fox News to air more left-wing views, compel the New York Times to publish more right-wing ones, and so on.
Prof. Hamburger accuses me of departing from libertarian principles, due to my focus on coercion. But the distinction between coercion and voluntary action is actually fundamental to libertarianism—and, indeed, to most other forms of liberalism. It is, in fact, usually opponents of libertarianism—particularly left-wing ones—that seek to efface the distinction between the two, thereby justifying government intervention to protect people against supposedly oppressive voluntary relationships. Such arguments are a standard justification for restrictive labor regulation, for example, where it is said that voluntary agreements to work more than certain amount of hours or for pay below the minimum wage are actually "exploitative" coercive.
Finally, Prof. Hamburger complains about my pointing out that speech can be a "public bad," and worries that it is somehow a justification for suppression. I think it is pretty obvious that at least some speech is a public bad, in so far as it can lead to horrific government policies. That was true of Nazi and Communist speech, for instance.
It doesn't follow that the government is justified in suppressing such speech. Even speech advocating awful ideas is still an exercise of an important individual liberty. And there is—to make an obvious point—good reason to distrust government judgments about which speech is harmful and which is not. Thus, there should be at least a strong presumption against allowing the government to deal with this public bad through coercive censorship.
By contrast, the use of non-coercive suasion—whether by the government or private parties—doesn't pose anything like the same risks. Private entities who differ with the government's position will remain free to publish opposing views. And so long as there is a market demand for such views, there will be incentives to publish them. If the government persuades, say, Twitter or Facebook, to take them down, that just creates a market incentive for others to publish them.
In sum, there is good reason to worry about government use of coercion to either suppress speech (as the Biden Administration may well have done in Murthy v. Missouri), or to compel it (as Texas and Florida are trying to do). But the First Amendment does not bar the government—or anyone else—from using non-coercive persuasion.
Columbia law Prof. Philip Hamburger has put up a detailed post responding to my earlier argument that courts should focus on coercion in Murthy v. Missouri, the case where two state governments and other plaintiffs argue that various federal agencies violated the First Amendment by pressuring social media platforms into barring various posts from their sites. I appreciate Prof. Hamburger's thoughtful post. But I remain unpersuaded.
Prof. Hamburger relies heavily on the use of "abridging" in the Free Speech Clause, in contrast to the use of "prohibiting" in the Free Exercise Clause:
The First Amendment, however, has something to say about coercion. Prof. Somin recognizes the argument I make in Courting Censorship, that the First Amendment bars government from "abridging" the freedom of speech, and thus bars reducing that freedom. But he fails to note that the amendment also bars government from "prohibiting" the free exercise of religion. The amendment's contrasting uses of abridging and prohibiting are meaningful. Id, at 254.
The contrast reveals that Prof. Somin's coercion argument misattributes to free speech the standard that the amendment uses for free exercise. The word prohibiting seems to refer to various forms of coercion. So, when the First Amendment instead speaks of abridging the freedom of speech, it would seem to be adopting a different measure of government action for that right. The freedom of speech is violated by a mere reducing of that freedom, whether or not through coercion.
Thus, Prof. Hamburger concludes that "even when the government acts through entirely voluntary cooperation, without even a hint of coercion, it can still be abridging the freedom of speech."
There may indeed be a meaningful distinction between "abridging" and "prohibiting." The former is a lower standard than the latter, suggesting that even relatively minor restrictions are unconstitutional. But it is nonetheless the case that, for there to be a violation of the Constitution, the thing the government must restrict (or "abridge") is "freedom of speech" (emphasis added). Absent some kind of compulsion, there is no loss of freedom.
Indeed, voluntarily choosing not to engage in some type of speech is itself an exercise of that freedom. Both common sense and longstanding Supreme Court precedent indicate that the right to refrain from speaking is itself a free speech right. If a private firm voluntarily chooses not to engage in speech, there is no violation of the freedom of speech, just the exercise of it. And that's true even if the decision was taken in response to non-coercive persuasion by the government.
If a government official persuades Reason to bar me from posting on their website because, he argues, my posts are unfair to the president and misrepresent the effects of his wonderful policies, there is no violation of freedom of speech. To the contrary, Reason's decision would be an exercise of that freedom.
Prof. Hamburger tries to distinguish this sort of situation from the social media case because, in the latter, the speakers' consent has not been obtained:
You might protest, as does Prof. Somin, that when the government persuades Reason not to let him post on this website, the government does not thereby violate his First Amendment rights. In his view, "that's no different" from when the government persuades the platforms to suppress Dr. Jayanta Bhattacharya's posts. Really, no different? Prof. Somin publishes here as a member of the blog, who has been personally invited to publish under its masthead. Whereas newspapers publish their choice of submitted editorials, blogs publish anything a member of the blog posts, but either way, nothing gets published or posted except what has been chosen by the newspaper or blog through its selection of an editorial or blogger….
In contrast, any individual can post on the platforms, at least until his posts are removed, and that is the individuals' speech, not the platforms' speech. Not even the platforms claim otherwise…. So when the government consensually gets a platform to remove posts, it is suppressing the speech of third parties without their consent.
Actually, it is not true that "any individual can post on the platforms, at least until his posts are removed." They can only do so if they first agree to the platforms' "terms of service," which include restrictions on the types of speech that are allowed, and also generally reserve the right to change the terms of service unilaterally. The latter point defeats Prof. Hamburger's argument that users did not consent to removal of speech that doesn't violate the terms of service. If platforms impose restrictions that somehow go beyond their terms of service, the users might have a right to sue for breach of contract. But it would still not be a violation of the First Amendment. In sum, while Facebook or Twitter/X impose fewer editorial constraints on content than the New York Times or Reason, they do still have them.
Prof. Hamburger also relies on contract law's recognition of various forms of information asymmetry and "pressure" that do not involve coercion, but might still vitiate a contract. Libertarian that I am, I decry many of these shifts in contract law. But whether defensible or not, they still don't prove there can be a violation of "freedom of speech" without coercion. Indeed, these restrictions on contract rights tend to be paternalistic in nature. They don't promote freedom, but rather restrict it in the name of promoting welfare, for fear that people might make bad choices in response to information asymmetries or social pressure.
Finally, it is ironic and internally contradictory that Prof. Hamburger has an expansive vision of what is prohibited by the First Amendment when it comes to non-coercive government pressure to bar social media posts, but a very narrow one when it comes Texas's and Florida's attempts to force social media firms to host speech they disapprove of. In this latter situation, there is blatant and obvious coercion.
My own position, by contrast, is completely consistent: government can use persuasion, but not coercion, in both situations. It cannot force social media platforms to either post material they disapprove of or to bar that which the private firms would prefer to allow. But, in both situations, it can use noncoercive persuasion. As noted in my previous post, various veiled threats can also be coercive. Identifying them may, in some cases, create evidentiary issues.
There is, perhaps, a disagreement here that goes beyond legal considerations. Prof. Hamburger is, I think, deeply worried that social media firms taking down posts will severely constrain the marketplace of ideas. I am not. The types of speech federal agencies tried to get social media firms to remove (e.g- anti-vaxxer speech, claims that the 2020 election was stolen from Trump, etc.) nonetheless remain widely available online and elsewhere. You can even find plenty of it on social media platforms! If there is a market demand for this kind of speech, media firms will have strong incentives to provide it—so long as government doesn't suppress them.
Prof. Hamburger is right that speech can be a "public good" (though it can also often be a public bad, as when misinformation leads to the adoption of harmful government policies). But voluntary decisions by social media firms are not a significant threat to that public good. Only systematic government coercion is likely to truly endanger it.
Today, Lawfare published my article on why Texas is wrong to equate illegal migration and cross-border drug smuggling with "invasion" in two important cases currently being litigated before the federal courts. Some of the points made in the article are developed in greater detail in an amicus brief I recently filed in United States v. Abbott, on behalf of the Cato Institute and myself.
Here's an excerpt from the article:
In two important cases currently before the U.S. Court of Appeals for the Fifth Circuit, the state of Texas has advanced the argument that illegal migration and drug smuggling qualify as an "invasion" authorizing the state to "engage in war" in response, under Article I of the Constitution. So far, federal courts have uniformly rejected such claims. But if they were to accept them, drastic consequences would follow. Border-state governments would be empowered to attack neighboring countries, even without congressional authorization. And the federal government would have the power to suspend the writ of habeas corpus—thereby detaining people without due process—almost anytime it wants. In addition to these practical considerations, Texas's "invasion" argument is at odds with the text and original meaning of the Constitution.
In United States v. Abbott the federal government is suing Texas for installing floating buoy barriers in the Rio Grande to block migration and drug smuggling, thereby creating safety hazards and possibly impeding navigation…. The Biden administration claims this violates the Rivers and Harbors Act of 1899, which bars "[t]he creation of any obstruction not affirmatively authorized by Congress, to the navigable capacity of any of the waters of the United States." In United States v. Texas, the state is defending the legality of S.B. 4, a new state law that criminalizes unauthorized migration, expands state law enforcement officials' powers to detain undocumented migrants, and gives Texas state courts the authority to order removal of migrants convicted under the law. The federal government claims S.B. 4 is preempted by federal law and that it infringes on federal authority over immigration.
In both cases, Texas argues the federal government's interpretation of the relevant statutes is wrong. But, more importantly, the state also contends that the Invasion Clause of Article I of the Constitution gives it the power to install buoys in the river border it shares with Mexico and to enforce S.B. 4 even if federal statutes forbid such actions. Article I, Section 10, Clause 3, of the Constitution states that "[n]o state shall, without the Consent of Congress, … engage in war, unless actually invaded, or in such imminent Danger as will not admit of delay." Texas claims illegal migration and drug smuggling qualify as "invasion" and that, therefore, the Constitution gives the state the power to take military action in response in defiance of federal statutes, and even in the absence of congressional authorization for war….
The constitutional text undermines the idea that "invasion" includes illegal migration and smuggling. The Invasion Clause relied on by Texas allows states to "engage in war" in response. That suggests an "invasion" must be the kind of organized assault that would normally justify full-scale war in response, including sending troops to attack and occupy the country from which the invasion originated….
The Guarantee Clause of Article IV of the Constitution states that the federal government must protect the states "against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence." Here, invasion is paired with "domestic Violence"—which in 18th century usage refers to uprisings against the state government, not the modern use of the term to denote violence in family and intimate relationships. Under the long-standing doctrine of noscitur a sociis, "a word may be known by the company it keeps." Here, it makes little sense to assume that "invasion" includes nonviolent actions, when it is coupled with "domestic Violence."
The original meaning reinforces the text….
In his Report of 1800, James Madison,one of the leading framers of the Constitution, responded to claims that the Guarantee Clause authorized the notorious Alien and Sedition Acts of 1798 by emphasizing that "[i]nvasion is an operation of war,"and thus the Clause does not authorize restrictions on immigration. The same logic applies to the use of "invasion" in Article I.
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Migrants wait in line at the U.S.-Mexico borderIlya Sominhttps://reason.com/people/ilya-somin/isomin@gmu.eduhttps://reason.com/?post_type=volokh-post&p=82701702024-03-23T21:35:50Z2024-03-22T20:13:02Z
Today, the Cato Institute and I filed an amicus brief in United States v. Abbott, a case before the en banc US Court of Appeals for the Fifth Circuit. Our brief explains why the state of Texas is wrong to equate illegal migration and cross-border drug smuggling with "invasion." Here is the summary of the brief, posted on the Cato website:
In this case, the United States contends that Texas illegally placed buoys in the Rio Grande River, in violation of the Rivers and Harbors Act of 1899, which prohibits the "creation of any obstruction not affirmatively authorized by Congress, to the navigable capacity of any of the waters of the United States." In addition to disputing the Biden Administration's interpretation of the statute, Texas also contends it has the power to place the buoys there under the Invasion Clause of Article I of the Constitution, which provides, "[n]o State shall, without the Consent of Congress, … engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay." Texas claims illegal migration and cross‐border drug smuggling qualify as "invasion," thereby authorizing it to install the buoys even if doing so would otherwise be barred by a federal law.
In their amicus brief, the Cato Institute and Professor Ilya Somin take no position on the statutory issues, but urge the U.S. Court of Appeals for the Fifth Circuit to reject Texas's dangerous Invasion Clause argument. It is at odds with the text and original meaning of the Invasion Clause and would have extraordinarily dangerous implications if accepted by federal courts.
Part I of the brief explains why Texas's interpretation of the Invasion Clause is manifestly wrong under the text and original meaning of the Clause. As James Madison emphasized in his Report of 1800, "Invasion is an operation of war." The term does not include illegal migration or drug smuggling.
Part II outlines the dire implications of Texas' arguments. State governments would have the power to wage war in response to undocumented migration and smuggling, even if such warfare were not authorized by Congress. This would be a major undermining of Congress' sole power to declare war and threatens to involve the United States in warfare at the behest of a single state government. The state's position would also effectively give the federal government the power to suspend the writ of habeas corpus at any time, since the Constitution gives the federal government the authority to do so "when in Cases of Rebellion or Invasion the public Safety may require it." Since some significant amounts of illegal migration and cross‐border smuggling occur at virtually all times, this would give the federal government the power to suspend the writ whenever it wants to. When the writ of habeas corpus is suspended, the government can arrest and detain people without trial, and without filing charges. That power would apply to American citizens and permanent residents, not just migrants who have recently crossed the border.
Finally, Part III outlines how three circuit court decisions have ruled that "invasion" does not include illegal migration and is limited to military attack. If the Fifth Circuit rules the other way, it would create a circuit split, a result disfavored by Fifth Circuit precedent.
On Monday, the Supreme Court held oral argument in Murthy v. Missouri, a case in which the states of Missouri and Louisiana, and several private plaintiffs argue that the Biden Administration pressured social media firms into taking down posts they deemed to be "misinformation." Most of the justices emphasized that at at least some degree of coercion is required before courts can intervene to block the government's actions in such a case.
If government officials are merely resorting to persuasion, however vehement, that doesn't by itself violate the First Amendment. Indeed, such suasion is is normal behavior for public officials. As Justice Brett Kavanaugh put it, "my experience is[that] the United States, in all its manifestations, has regular communications with the media to talk about things they don't like or don't want to see or are complaining about factual inaccuracies." Kavanaugh was likely referring to his service as a White House official in the George W. Bush Administration. Justice Elena Kagan, also a former White House official, made a similar point:
[L]ike Justice Kavanaugh, I've had some experience encouraging press to suppress their own speech. You just wrote about editorial. Here are the five reasons you shouldn't write another one. You just wrote a story that's filled with factual errors. Here are the 10 reasons why you shouldn't do that again. I mean, this happens literally thousands of times a day in the federal government.
Cynics might argue that Kavanaugh and Kagan are biased by their own experience in government service. But this distinction between suasion and coercion is inherent in the text of the First Amendment. The Free Speech Clause doesn't restrict any and all government efforts to constrain speech. Rather it, bars government actions "abridging the freedom of speech" (emphasis added). If the state—or anyone—persuades a private entity to cut back on speech voluntarily, the freedom of speech has not been abridged, even if the total amount of speech may be reduced.
Louisiana Solicitor General Benjamin Aguinaga, arguing for the plaintiff states, suggested things are different in the case of social media firms, because here the government is urging them to cut back on the speech of "third parties" (users of their websites) rather than their own. But that's no different than if a government official I criticize on this blog contacts Reason and urges them to stop allowing me to post on its site because (they claim) my critiques of government policy are inaccurate and unfair. As long as there is no coercion, neither my freedom of speech nor Reason's would have been violated if Reason decides to bar me from the site. I only have a right to post here in so far as Reason lets me, and barring me (should they choose to do so) would be an exercise of their freedom speech.
This still leaves the question of whether various federal agencies did in fact coerce social media sites into barring speakers from their sites. As I wrote in a post about the Fifth Circuit decision the Court is reviewing here, I think the answer is likely "yes." But I admit there can be some difficult factual issues in cases like this. Clever officials my rely on veiled threats rather than open ones. Context is critical in assessing such situations.
Importantly, the Fifth Circuit found that officials did in fact threaten to punish social media firms that refused their demands:
[T]he officials threatened—both expressly and implicitly—to retaliate against inaction. Officials threw out the prospect of legal reforms and enforcement actions while subtly insinuating it would be in the platforms' best interests to comply. As one official put it, "removing bad information" is "one of the easy, low-bar things you guys [can] do to make people like me"—that is, White House officials—"think you're taking action."
That sure seems like coercion to me! Importantly, the people making these statements were officials whose superiors had the power to carry out at least some of these veiled threats. The evidentiary and interpretive issues here are—as noted in my previous post—similar to those that sometimes arise when organized crime organizations, like the Mafia, engage in extortion or protection rackets:
It's noteworthy that the record analyzed by the [Fifth Circuit] doesn't seem to include any examples of direct, unequivocal threats, such "If you don't take down X, I will inflict punishment Y." But as the court recognizes, context matters. If a representative of a Mafia boss tells a business owner to pay protection money, because "that's one of the easy, low-bar things you can do to make people like me and the Don happy," the context strongly suggests a threat of coercion. The same thing is true if a representative of a government agency with regulatory authority over Twitter or Facebook uses similar language to pressure those firms to take down material.
If it is indeed true that government officials "threatened…. to retaliate against inaction," then the Supreme Court should uphold the Fifth Circuit injunction against the defendant agencies, at least in so far as that injunction bars coercive pressure. As discussed in my previous post, I am far less convinced that the Fifth Circuit acted appropriately in also enjoining "significant encouragement" defined as "a governmental actor exercis[ing] active, meaningful control over the private party's decision." If the private party gave the governmental actor such control voluntarily, that may be bad media ethics, but it is not a violation of freedom of speech.
For those keeping score, my position here is exactly the same as in the Texas and Florida social media law cases argued before the Supreme Court last month. There, social media firms urged the Court to strike down state laws requiring them to host speech the firms object to. These laws clearly qualify as government coercion, and should be struck down. On the other hand, if Texas and Florida officials had merely sought to persuade Facebook and Twitter to host various types of right-wing speech voluntarily, there would be no violation of the First Amendment there either.
In sum, the First Amendment bars government from coercing social media firms to either post speech the firms object to (as Texas and Florida seek to do) or take down speech the firms would like to allow (as various federal agencies apparently did). On the other hand, both federal and state officials have every right to urge firms to put up or take down posts voluntarily.
Much of Monday's oral argument was devoted to questions of whether the plaintiffs had standing. My impression is that the justices could potentially go either way on that question, though I myself think at least some of the plaintiffs do have standing (because their speech on social media got restricted in response to coercive pressure brought to bear by government agencies). If the Court rules the private plaintiffs lack standing, it may be tough sledding for the state governments, as the Supreme Court has not been very friendly to creative state standing claims in recent years. I will leave the details of these standing issues to other commentators.
If the Court reaches the merits, I hope they make clear that coercion is the appropriate standard, but also that veiled, but credible threats of retaliation by government officials qualify as such coercion.
UPDATE: In the original version of this post, I accidentally attributed a statement by Justice Elena Kagan to Justice Ketanji Brown Jackson. I apologize for the mistake, which has now been corrected.
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Ilya Sominhttps://reason.com/people/ilya-somin/isomin@gmu.eduhttps://reason.com/?post_type=volokh-post&p=82694212024-03-18T20:18:15Z2024-03-18T20:18:15Z
Marshall University recently posted the video of my online talk on "Putin's Western Supporters," which is part of their weekly series of panels and lectures related to Russia's war against Ukraine.
In the presentation, I distinguish between Westerners who like and admire Putin's regime from those I call "anti-anti-Putinists," a term inspired by Cold War-era anti-anti-communists. I also explain why Cold War-era Western sympathizers with the Soviet Union were overwhelmingly on the political left, while Putin's Western supporters are mostly on the political right. Whereas the USSR's appeal was tied to that of egalitarian socialism and communism Putin's Russia promotes nationalism and social conservatism. Finally, I discuss the relative strengths and weaknesses of Putin's regime in the international war of ideas, and what can be done to counter it. Some of the points made relate to issues addressed in my recent National Affairs article, "The Case Against Nationalism" (coauthored with Alex Nowrasteh).
At the Econlib site, political philosophy graduate student and UnPopulist editor Akiva Malamet has two insightful new pieces on the economics and politics of Star Trek.
Star Trek is often seen as utopian science fiction, but a close look shows that the world of the Federation is not as peaceful and inclusive as it first appears. Following Gene Roddenberry's dream of a future society lacking prejudice and focused on inclusion, social and legal equality, and egalitarian post-scarcity economics, Trek is well-known for its strong moral compass and its progressive, even leftist values.
It is a world I appreciate and admire, as a die-hard Trekkie who holds many similar commitments. And yet the United Federation of Planets doesn't truly resolve deep differences and divergent interests among different beings. Rather, it obscures them with cultural uniformity, propounding a quasi secular humanist, even anti-religious philosophy, coupled with a near-complete transcendence of material constraints. This allows the Federation to sidestep the kind of conflicts that real differences, both in beliefs and in material endowments, create. By contrast, the staunchly economic perspective of the Ferengi makes them better able to cope with hard tradeoffs and ensure genuine respect for diversity, despite their many ethical and social deficiencies. Yet the discussion cannot end there; in the final analysis, we need a synthesis that incorporates the moral ideals of the Federation together with the Ferengi's pragmatism to find a balance of the wisdom embodied in the Star Trek universe.
The second is entitled "Star Trek: Markets on the Edge," and takes a closer look at economic issues in the Trek universe:
In the Federation, most goods and services are produced via replication. The need for production and trade via the division of labour is greatlydiminished (though there is demand for luxury artisanal, non-replicated goods….). Thus, the Federation seems to have overcome much of the knowledge problem around satisfying dynamic, subjective preferences and efficiently allocating scarce resources with competing uses. It is an economy of abundance beyond even the dreams ofmost economists or sci-fi writers. This is coupled with egalitarian values and the self-important assurance that the Federation is populated by virtual saints only interested in self-actualization and universal brotherhood.
By contrast however, outside (and sometimes within!) the Federation's utopian core of planets, people often fight over insufficient replicators, scarce machinery, food, medicine, and other resources. Supply ships are vital for bringing scarce items to distant worlds, and for transporting goods that can't be replicated, such as dilithium and rare medicines….
Notably, while replicators can recreate almost anything, it appears that replicators themselves cannot be easily reproduced. Trek never tells us if creating replicators is costly. Yet it is apparent that replicators cannot be provided easily for all. Contrary to Jean-Luc Picard's assertion that "…the acquisition of wealth is no longer the driving force in our lives" the Federation has not overcome self-interest, greed, or other constraints of human nature. It has simply changed the transaction costsof conflict by exploiting technology that severely reduces scarcity. When scarcity returns, so does conflict over resources.
Job allocation adds further support to the view that the Federation relies on advanced technology more than it does a sci-fi version of the New Soviet Man or Rawlsian ideal theory. It is unclear how the Federation incentivizes people to take on jobs that are less desirable or whose social importance is less well-understood….
As they say, read the whole thing!
I made similar points about Star Trek's treatment of political and economic issues in a 2016 article for Learn Liberty. Like Malamet, I praised the franchise for its commitment to ethnic tolerance and diversity, but also expressed reservations about the Federation's seeming intolerance for ideological diversity:
Star Trek creator Gene Roddenberry stressed the virtues of tolerance and cooperation across racial, ethnic, and national lines. In the original 1960s series, the bridge crew of the Enterprise includes an Asian, a Russian (included at the height of the Cold War), and a black African, at a time when such diversity in casting was unusual. The inclusion of a black female bridge officer was considered such an important breakthrough for racial equality that Martin Luther King persuaded Nichelle Nichols, the actress who played Lt. Uhura, to stay on the show when she was thinking of quitting.
Star Trek also featured the first interracial kiss on an American network TV show, and—in the 1990s—one of the first lesbian kisses.
The Federation… seems to successfully incorporate a wide range of cultures and lifestyles, and offers a combination of material abundance and toleration….
The uncritical acceptance of socialism may be a manifestation of the Federation's more general troubling ideological homogeneity. Especially among the human characters, there seems to be remarkably little disagreement over ideological and religious issues. With one important exception (discussed below), few human characters oppose the official Federation ideology, and those few are generally portrayed as fools, villains, or both.
The Federation is a collection of racially and ethnically diverse people who all think alike, at least when it comes to the big issues. The series' creators likely intended this as an indication of humanity's future convergence toward the "truth." But it is also subject to a more sinister interpretation: just as socialism tends to stifle independent economic initiative, it also undermines independent thought….
Even more than Malamet, I was troubled by Star Trek's largely uncritical embrace of socialism, and relative neglect of the value of economic incentives:
[A]t least from a libertarian perspective, the otherwise appealing ideological vision of Star Trek is compromised by its commitment to socialism.
The Federation isn't just socialist in the hyperbolic sense in which some conservatives like to denounce anyone to the left of them as socialist. It's socialist in the literal sense that the government has near-total control over the economy and the means of production.
Especially by the period portrayed in The Next Generation, the government seems to control all major economic enterprises, and there do not seem to be any significant private businesses controlled by humans in Federation territory. Star Fleet characters, such as Captain Picard, boast that the Federation has no currency and that humans are no longer motivated by material gain and do not engage in capitalist economic transactions…..
The problem here is not just that Star Trek embraces socialism: it's that it does so without giving any serious consideration to the issue. For example, real-world socialist states have almost always resulted in poverty and massive political oppression, piling up body counts in the tens of millions.
But Star Trek gives no hint that this might be a danger, or any explanation of how the Federation avoided it. Unlike on many other issues, where the producers of the series recognize that there are multiple legitimate perspectives on a political issue, they seem almost totally oblivious to the downsides of socialism.
Elsewhere in our respective pieces, Malamet and I both explain why the existence of replicators and other incredibly advanced tech doesn't vitiate the problems associated with socialism. He and I may be the only two commentators to call attention to the importance of the fact that there is no way to replicate a replicator, and therefore these devices turn out to be important scarce goods in the Star Trek universe.
We also both highlight ways in which Deep Space 9—my favorite among the many Star Trek series—takes a more critical view of the Federation than previous movies and series' did, including both its ideological and religious homogeneity, and some aspects of its political economy.
Since I published my piece in 2016, there have been several new Star Trek series, most notably Discovery, Picard, and Strange New Worlds. Malamet largely ignores these new series. But all three take a more critical perspective on the Federation than earlier franchise products have. Discovery and Picard both have severe flaws, sometimes to the point of becoming sprawling, incoherent messes. But Strange New Worlds is much better. It takes a highly critical perspective on on several aspects of Federation ideology and society, most notably its hostility to genetic engineering. I hope to have more to say about it in the future.
Skeptical readers may wonder why we should even care about the politics and economics of a fictional universe. The most obvious answer is because it's fun! I give some additional reasons in this 2011 article, emphasizing that science fiction and other aspects of popular culture can influence the broader political discourse.
This post describes how and why the political salience of Irish-American identity has declined enormously over the last century, and what can be learned from that experience. An excerpt:
Today is St. Patrick's Day. And tonight, Irish-Americans across the country will be gathering to toast their control of the highest political office in the land. After all, Joe Biden is only the second Irish Catholic president of the United States. For their part, millions of WASPs are seething about the loss of their political hegemony to the Irish. St. Patrick's Day celebrations are a painful reminder of their humiliation. Police forces in major cities are on alert for possible ethnic riots.
OK, actually nothing like that is happening! In reality, very few Americans care that Biden is an Irish Catholic. Even fewer fear that he is somehow promoting Irish interests at the expense of WASPs….. Political conflict between Irish-Americans and WASPs has almost completely disappeared….
It wasn't always so. In the 19th and early twentieth centuries, political antagonism between Irish and WASPs was ubiquitous, sometimes rising to the level of anti-Irish rioting by nativists. There was also substantial discrimination and social prejudice against the Irish….
How did this change come about? The story is long and complicated… But one crucial factor was that most Americans came to realize that the differences between Irish-Americans and other groups were far less significant than previously thought, and also that these ethnic and religious divergences should be downgraded in the name of universal liberal principles.
This post comments on Noah Smith's insightful piece arguing that Hispanics are following the same path of assimilation as Irish-Americans did in earlier generations. I think Smith is largely right, but offer two major caveats. Here is an excerpt:
Hispanics are by far the largest American immigrant group of the last several decades, and also the focus of the most extensive nativist concerns. Immigration restrictionists contend that Hispanic immigrants increase crime, undermine American political institutions, and cannot or will not assimilate. In a recent post, prominent economic policy commentator Noah Smith compiles evidence that these complaints are largely misplaced, and that Hispanics are in fact following a trajectory similar to that of Irish-Americans in the late-nineteenth and early-twentieth centuries….
Today's fears of supposedly violent and unassimilable Hispanics are remarkably similar to the nineteenth century stereotype of brutish, un-American Irishmen…
In [his]… article, Smith compiles evidence that the concerns about Hispanics are largely false: they are in fact rapidly assimilating, quickly increasing their wealth and income, and have significantly lower crime rates than native-born Americans (a point that applies even to undocumented immigrants). Most of this evidence is well-known to students of immigration policy. But Smith does a valuable service in compiling it in one relatively short and easily accessible piece….
I would, however, note a few relevant caveats to Smith's thesis. First, it is not entirely true that Irish and Hispanic immigrants "were mostly working-class folks who came for mainly economic reasons." In reality, many Hispanic immigrants were and are refugees from oppressive socialist regimes in Cuba, Nicaragua, and (most recently) Venezuela. Some others have fled repression at the hands of right-wing dictatorships….
A second caveat is that Hispanic migrants are a much more diverse lot than the Irish were. They come from a variety of different nations and ethnic groups. This makes generalizations about them more difficult….
Finally, while Irish immigrants arrived in an era when there were few restrictions on European immigration, many Hispanic migrants are undocumented. Today, there are an estimated 7 million or more undocumented Hispanic immigrants in the US, which accounts for some one-third of all foreign-born Hispanics, and over 70% of the total undocumented immigrant population.
For obvious reasons, lack of legal status reduces migrants' incomes and educational opportunities, and impedes assimilation. The existence of this anchor makes Hispanics' progress look even more impressive than it would be otherwise. But, unless immigration policy changes, it is likely to continue to slow down the assimilation process highlighted by Smith.
The New York Timesand Atlantic writer Jerusalem Demsas both recently published articles on how the YIMBY ("Yes in my backyard") movement has cut across ideological and partisan lines in an era where such divisions have engulfed most other policy issues. The Times headline calls it "The Surprising Left-Right Alliance That Wants More Apartments in Suburbs":
For years, the Yimbytown conference was an ideologically safe space where liberal young professionals could talk to other liberal young professionals about the particular problems of cities with a lot of liberal young professionals: not enough bike lanes and transit, too many restrictive zoning laws….
But the vibes and crowd were surprisingly different at this year's meeting, which was held at the University of Texas at Austin in February. In addition to vegan lunches and name tags with preferred pronouns, the conference included — even celebrated — a group that had until recently been unwelcome: red-state Republicans.
The first day featured a speech on changing zoning laws by Greg Gianforte, the Republican governor of Montana, who last year signed a housing package that YIMBYs now refer to as "the Montana Miracle…."
Day 2 kicked off with a panel on solutions to Texas's rising housing costs. One of the speakers was a Republican legislator in Texas who, in addition to being an advocate for loosening land-use regulations, has pushed for a near-total ban on abortions.
Anyone who missed these discussions might have instead gone to the panel on bipartisanship where Republican housing reformers from Arizona and Montana talked with a Democratic state senator from Vermont. Or noticed the list of sponsors that, in addition to foundations like Open Philanthropy and Arnold Ventures, included conservative and libertarian organizations like the Mercatus Center, the American Enterprise Institute and the Pacific Legal Foundation.
Demsas makes similar points:
Over the past four years, as the affordability crisis has worsened, the YIMBYs have gained ground. In conservative Montana, an anti-California message spurred lawmakers into passing pro-development bills; in Washington State, ambitious proposals were passed in the name of affordability and racial equity. But members face pressure on both sides to abandon ship. How long can they hold on?
One reason the YIMBY movement has remained bipartisan is that it's decentralized. But the gang gets together periodically for a national conference amusingly called "YIMBYtown"—the rare place where you might find socialists, centrist economists, and Trump-supporting elected officials all in the same room, working toward the same goal.
I have been writing about cross-ideological agreement on this issue for years. Housing deregulation is a cause that unites a wide range of economists and land-use experts across the political spectrum. Thus, I—a libertarian property rights scholar—end up in the same boat with liberals like Richard Kahlenberg and Paul Krugman, and conservatives at the National Review.
Prominent political advocates of zoning reform include Virginia Republican Governor Glenn Youngkin and Colorado Democratic Governor Jared Polis. Gov. Polis captured the broad appeal of housing deregulation well, when he said recently that "[i]t's a solution to housing costs that embraces our individual property rights…. The fact that it's meeting a real need that people from the left to right, the center, no matter where they are politically, want to do something about high housing costs is really what makes it even more salient."
In a forthcoming Texas Law Review article, Josh Braver and I explain why the constitutional case against exclusionary zoning can also cut across ideological lines. I'm a libertarian originalist; Braver is a progressive living constitutionalist. But we both agree that exclusionary zoning violates the Takings Clause of the Fifth Amendment.
Of course, the opposing side in this debate—the NIMBY ("Not in My Backyard") forces—also cuts across ideological lines. It includes left-wingers suspicious of capitalism and development, and right-wingers—including Donald Trump—who play on fears that deregulation will lead more poor people and minorities to move to white suburban neighborhoods. There are also many NIMBYs who believe—contrary to basic economics—that allowing developers build more housing will actually drive up costs rather than increase them. Others who fear that it will reduce property values and change the "character" of their neighborhoods. For some progressive homeowners in the latter camp, narrow self-interest trumps ideology. In reality, many existing homeowners have much to gain from housing deregulation, especially if they have children. But many either don't know that, are highly risk-averse, or both.
If I had to speculate on what really unites YIMBYs across the political spectrum, and divides them from their opponents, I would suggest that one big factor is that YIMBYs generally understand Economics 101 and apply it to housing issues. They know that increasing supply by allowing more construction reduces costs, and thereby also increases the availability of homes—especially to the poor and disadvantaged. NIMBYs, by contrast, tend to ignore or deny this.
More generally, YIMBYs are less likely than NIMBYs to see the economy as a zero-sum game where some people can only gain at the expense of others. Thus, they recognize that letting developers build more housing and letting more people "move to opportunity" benefits not only the developers and migrants themselves, but also the rest of society, which has much to gain from the resulting boost to productivity and innovation. Zero-sum thinking is at the root of many political divides, and likely plays a significant role here, as well.
I don't claim zero-sum thinking and economic ignorance are the only factors at work. As I've emphasized before, you can be a highly knowledgeable, logically consistent NIMBY if you are highly risk-averse and elevate preservation of the current "character" of your neighborhood over such concerns as protecting property rights, creating opportunity for the poor, and increasing growth and innovation. But NIMBYism would be a far less powerful political force if it were limited to people who think that way.
You can also reach NIMBY conclusions if you endorse complex "market failure" theories, which essentially hold that Econ 101 doesn't apply to housing. But then you would need to confront overwhelming evidence indicating that areas with little or no zoning (most notably Houston) have far more affordable housing, even in periods when demand goes up, because many people want to move there.
For the moment, YIMBYism remains a valuable cross-ideological coalition, one that has managed to score some important successes, despite also suffering some setbacks. Whether it can continue to defy the forces of polarization remains to be seen.
The year is 1284. The town: Hamelin. Our hero? The Pied Piper, summoned (in that fabulous multicolored tunic, no less) by a weary mayor to play his dulcet tones and lure away the town's rats, who were eating weed seized by law enforcement.
Oh. Erm, no. The rats of the 13th century were just being annoying. It's the rats of today who are allegedly feasting on cannabis taken by police down in the land of dreams. Ah, New Orleans.
"The rats are eating our marijuana," New Orleans Police Department (NOPD) Supervisor Anne Kirkpatrick told a City Council committee on Monday. "They're all high."
Fortunately, experts assure us the rats probably aren't actually getting high:
"If the rats are eating raw cannabis, I would be very surprised if they are actually getting high," Matt Hill, a professor at the University of Calgary, toldAxios. Heat is required to activate THC, the psychoactive compound in marijuana, said Hill, who studies rats and weed (a surprisingly robust field!). Should the rats have actually gotten high, the rodents sharing real estate with the NOPD would likely be noticeably more docile, sluggish, and less aggressive.
That's a relief! We wouldn't want New Orleans rats to become more docile and sluggish.
However, this situation reveals a possible justification for marijuana prohibition that critics—myself included—have so far overlooked: confiscated marijuana is valuable food source for rats! And not just in New Orleans. Rodents as far afield as India and Argentina have also been dining on pot seized by law enforcement. What will they do if deprived of of their food supply? Surely we wouldn't want them to starve! Will no one think of the poor rodents?
Like many parts of the United States, several major cities in Canada have severe housing shortages caused by exclusionary zoning—rules that forbid or severely restrict the construction of relatively low-cost multifamily housing. In some places, however, Canadian indigenous nations (known as "First Nations") have been able to get around these rules. A recent article in the Canadian publication Maclean's has an interesting description of one such project in Vancouver (one of the cities most severely impacted by zoning restrictions):
Vancouver has long been nicknamed the "city of glass" for its shimmering high-rise skyline. Over the next few years, that skyline will get a very large new addition: Sen̓áḵw, an 11-tower development that will Tetrize 6,000 apartments onto just over 10 acres of land in the heart of the city. Once complete, this will be the densest neighbourhood in Canada, providing thousands of homes for Vancouverites who have long been squeezed between the country's priciest real estate and some of its lowest vacancy rates.
Sen̓áḵw is big, ambitious and undeniably urban—and undeniably Indigenous. It's being built on reserve land owned by the Squamish First Nation, and it's spearheaded by the Squamish Nation itself, in partnership with the private real estate developer Westbank. Because the project is on First Nations land, not city land, it's under Squamish authority, free of Vancouver's zoning rules. And the Nation has chosen to build bigger, denser and taller than any development on city property would be allowed.
The project and others like have come under fire from a coalition of NIMBY interests and left-wingers angry that First Nations has deviated from "indigenous ways of being":
Predictably, not everyone has been happy about it. Critics have included local planners, politicians and, especially, residents of Kitsilano Point, a rarified beachfront neighbourhood bordering the reserve. And there's been an extra edge to their critiques that's gone beyond standard-issue NIMBYism about too-tall buildings and preserving neighbourhood character. There's also been a persistent sense of disbelief that Indigenous people could be responsible for this futuristic version of urban living. In 2022, Gordon Price, a prominent Vancouver urban planner and a former city councillor, told Gitxsan reporter Angela Sterritt, "When you're building 30, 40-storey high rises out of concrete, there's a big gap between that and an Indigenous way of building."
…. In 2022, city councillor Colleen Hardwick said of [a similar development], "How do you reconcile Indigenous ways of being with 18-storey high-rises?" (Hardwick, it goes without saying, is not Indigenous.)
…What chafes critics, even those who might consider themselves progressive, is that they expect reconciliation to instead look like a kind of reversal, rewinding the tape of history to some museum-diorama past. Coalitions of neighbours near Iy̓álmexw and Sen̓áḵw have offered their own counter-proposals for developing the sites, featuring smaller, shorter buildings and other changes. At the January hearing for Iy̓álmexw, one resident called on the First Nations to build entirely with selectively logged B.C. timber, in accord with what she claimed were their cultural values…That attitude can cast Indigenous people in the role of glorified park rangers.
The Squamish Nation is right to ignore both the NIMBYs and left-wing naysayers. NIMBYism should not be allowed to undermine property rights and block much-needed housing development. In places where demand is high and housing construction severely restricted, even many current homeowners have much to gain from legalizing new development.
As for the idea that First Nations should stick to "indigeneous ways of being," the right response is that they should be able to build whatever type of housing they want. White progressive critics of the Squamish project surely would not accept similar constraints for themselves. Should descendants of white Europeans also be limited to building the types of housing their ancestors built centuries ago, using the same sorts of materials? If it was good enough for your medieval peasant ancestors, it's good enough for you!
Economist Alex Tabarrok (my George Mason University colleague) notes that the Vancouver project is an example of the "charter city" concept at work, and highlights similar developments in the US:
The Catawba Indian Nation, for example, established the Catawba Digital Economic Zone (CDEZ), where I serve as an advisor. The CDEZ is based on US law but tailored for digital entrepreneurs, freelancers, FinTech, digital assets, Web3, and other exponential digital technologies. The progressive left probably isn't happy about that either. Personally I am delighted to support initiatives that empower indigenous communities through capitalist ventures. More broadly, however, I support the introduction of new governance models to encourage competition in governance—bring on a new era of discovery and Tiebout competition!
My only complaint is that indigenous groups should not be the only ones exempt from exclusionary zoning rules. Those restrictions should be abolished for all property owners, regardless of race or ancestry.
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Squamish Nation development project (Vancouver).Ilya Sominhttps://reason.com/people/ilya-somin/isomin@gmu.eduhttps://reason.com/?post_type=volokh-post&p=82687692024-03-14T01:08:18Z2024-03-14T01:08:18Z
In a post at his Slow Boring website on what the federal government can do to alleviate our massive shortage of affordable housing, prominent progressive political commentator and zoning reform advocate Matt Yglesias comments on my forthcoming Texas Law Review article arguing that exclusionary zoning violates the Takings Clause of the Fifth Amendment (coauthored with Josh Braver):
[I]n mid-February Ilya Somin and Joshua Braver published a law review article calling on the Supreme Court to either reverse or sharply limit the 1926 Euclid v. Amber decision and hold that exclusionary zoning is a "taking" under the meaning of the 5th Amendment. I try not to opine on matters of constitutional law, because I think it's mostly just people making stuff up. But the Euclid doctrine is genuinely bizarre. As I first learned by playing SimCity on DOS, the basic point of zoning is to separate industrial, residential, and commercial uses in order to avoid undesirable pollution and facilitate transportation planning. But from the beginning, land use regulation has clearly been put to other uses. Back in the 1917 case of Buchanan v. Warley — decided at a time when racism was mainstream in America — the Supreme Court held that local government couldn't reserve certain neighborhoods for white people and others for Black people. This was long before the Civil Rights Act and also before the school desegregation cases that struck down the concept of "separate but equal."
Then, nine years later in Euclid, they turned around and it said was fine to exclude all apartment buildings from a neighborhood, because rental housing for working class people was a "mere parasite" on single-family homes, which is just rhetoric that doesn't engage with any empirical information. I understand that a lot of people have concerns about expanding the takings doctrine (Somin is a right-wing guy), but I do think that the courts asking that land use regulation have real public purpose would be constructive.
Yglesias is right that the exclusionary zoning approved by the Supreme Court in Euclid turned out to be a backdoor to racial exclusion. Indeed, this was predicted by the lower court judge whose decision the Supreme Court overruled (see discussion in Part I of our article). In that respect, Euclid predictably undercut much of the beneficial effect of Buchanan v. Warley. He's also right that the policy rationale for Euclidean exclusionary zoning is flimsy at best. As the district court put it, "[i]n the last analysis, the result to be accomplished is to classify the population and segregate them according to their income or situation in life."
It's not clear to me what Yglesias means by "courts asking that land use regulation have real public purpose." But, as we argue in the article, the best way to ensure that local government can't use zoning to exclude large numbers of middle class and poor people is to rule that doing so without compensation violates the Takings Clause.
Regulations that protect against substantial threats to health and safety may be exempt from takings liability under the "police power" exception (see Section II.C of our article). This may lessen some of the "concerns about expanding the takings doctrine" that Yglesias referred to.
Expanded takings liability would still likely reach some regulatoins progressive zoning reformers like. But that tradeoff is likely worth it, given the truly enormous harmful impact of exclusionary zoning, which cuts off millions of people from jobs and opportunity, particularly the poor and minorities (see Part I of our article, and many of Yglesias' own writings on this topic). More generally, judicial protection of almost any constitutional right involves some tradeoffs. Freedom of speech requires tolerating communists and Nazis. Protecting criminal defendants' rights means some guilty criminals will go free. And so on.
Yglesias also implies that the "concerns" may be heightened by the fact I am a "right-wing guy." Whether I am left-wing or right-wing depends on which issues you focus on. I do indeed hold some conventionally right-wing views, such as advocating massive cuts in government spending and the welfare state. On the other hand, I also favor abortion rights, open borders immigration, and abolishing the War on Drugs (all of it, not just marijuana prohibition).
Perhaps more importantly, my co-author, Josh Braver, is unimpeachably progressive. If I'm a "right-wing guy," he's a left-wing one. The article is a project in cross-ideological cooperation. The policy case against exclusionary zoning has long cut across partisan and ideological lines, as Yglesias himself recognizes. Josh and I argue the constitutional case can, as well. As we explain, both originalist theories favored by many on the right, and various living-constitution theories popular on the left converge on similar results here.
We recognize that judicial review probably cannot solve the problem of exclusionary zoning by itself. But, as described in Part IV of the article, it can be effective in conjunction with political reform efforts. That, we argue, is the lesson of many previous successful reform movements that combined litigation with political action, such as the civil rights movement, the LGBT movement, gun rights activists, and others.
Finally, Yglesias is at least partly right that many constitutional arguments involve people just "making stuff up." But, of course, the same is true of many moral and policy arguments, as well. In law, as in policy, the way forward is to try to separate out good arguments from bad ones.
Notre Dame law Professor Derek Muller—a leading election law scholar—has posted a study he conducted of the partisan distribution of political donations by law professors between 2017 and 2023. Not surprisingly, they skew overwhelmingly towards Democratic candidates:
I identified 3148 law faculty who contributed only to Democrats in this 5+ year span—95.9% of the data set of those identified as contributing to either Democrats or Republicans in this period. Another 88 (2.7%) contributed only to Republicans. And 48 others contributed to both Democrats and Republicans.
The dollar figures were likewise imbalanced but slightly less so. About $5.1 million went to Democrats in this period, about 92.3% of the total contributions to either Democrats or Republicans. About $425,000 went to Republicans. (Around $6000 went to others.)
The overall result here is far from surprising. Lots of previous studies find that law professors are skew towards the political left. Still, the extent of the imbalance is notable. Exclusively Democratic contributors outnumber exclusively Republican ones by over 35 to 1. That's a larger disproportion than in previous studies.
In addition, Democratic contributors outnumber Republican ones at every single school included in the study, usually by large margins. My own law school (George Mason University) is often considered right-wing. Nonetheless, Muller finds we had 11 Democratic contributors and only six Republican ones; two people contributed to candidates of both parties [I was one of the Republican contributors, for idiosyncratic reasons explained in an update at the end of this post]. That figure of six is the highest number of exclusive GOP donors at any school in the study. By contrast, there are many schools with dozens of Democratic contributors.
The disproportion is comparably large measured by money totals, rather than numbers of contributors. Faculty at only two schools (Northwestern and Wayne State) contributed more to Republicans than Democrats. In the case of Northwestern, the disproportion is very great: $167,245 contributed to Republicans versus $64,460 given to Democrats. But this figure is misleading. Muller's data shows that Northwestern had 32 faculty who contributed to Democrats, compared to only one who gave to Republicans (this individual apparently also gave money to at least one Democratic candidate, as well). This one professor is so committed to the GOP that he or she gave more than twice as much to their campaigns as his 32 Democratic-contributing colleagues gave to the Democrats combined!
Muller notes a few caveats about the data, most notably that faculty with strong political views don't necessarily donate to candidates. For example, Muller's own school, Notre Dame, had 14 Democratic contributors during the time-frame studied, and no Republican ones. But Notre Dame does in fact have several prominent conservative or libertarian legal scholars. Similarly, Northwestern had more than one right-of-center faculty member during this period (I know of about four or five). There are cases like this at other schools, too.
In addition, the time-frame likely reduces the number of Republican donors, compared to previous eras. The period covered in the study (2017-23) is the era of the Trump takeover of the GOP, which famously alienated many highly educated people who previously backed the party. Almost by definition, lawprofs fall in the highly educated group. I myself stopped voting for the GOP in presidential elections during the Trump era, and likely some other conservative and libertarian lawprofs did the same. A 2005 study of elite law school faculty campaign contributions also found a large Democratic skew, but a bit smaller than that in Muller's study of the 2017-23 period.
Another caveat is that people might donate to a candidate because they think he or she is a lesser evil compared to the available alternatives, not because they actually like that person's ideology or the agenda of their party. I voted for Hillary Clinton and Joe Biden in 2016 and 2020 on such lesser-evil grounds, even though I have little love for them or their party. I just found Trump to be even worse. While I did not donate any money to Clinton or Biden, myself, it's possible some lawprofs donate to lesser-evil candidates as well as vote for them. We cannot always assume that people who donate to a candidate or party necessarily share their ideology.
Finally, a disproportionate number of non-left wing legal academics are libertarians (myself included). For obvious reasons, they may be disinclined to contribute money to candidates from either major party. Some might instead give to the Libertarian Party or its candidates (Muller found a total of only $6000 in donations to third-party campaigns). But many might not because they believe the LP has no chance of winning or because they are disillusioned by the awful Mises Caucus takeover of the party in 2022 (near the end of the study period). Studies focusing on campaign contributions probably undercount libertarians.
There are likely other limitations to the data, as well. Still, when all is said and done, the ideological and partisan imbalance in legal academia is very large. Muller's data further confirms it.
At this point, readers may wonder why it matters what law professors' views are. It's not like lawprofs are an important voting bloc, or a major source of campaign funds (with the possible exception of the big GOP donor at Northwestern!). I explained why lawprofs' views matter in a previous post:
[L]aw professors can influence the views of law students, who—of course—go on to be the next generation of lawyers. Lawyers, in turn, have disproportionate influence on a wide range of public policies. A high proportion of politicians and other policymakers are lawyers, as—of course—are nearly all judges. Maybe lawyers shouldn't have so much influence. But they do.
Finally, a good many lawprofs have a direct influence on the development of law and public policy. Courts often adopt ideas that were first developed by academics….
Even outside the courts, lawprofs sometimes have significant influence on government policy. For example, Harvard law Prof. Cass Sunstein has helped influence governments around the world to adopt policies based on "nudging" and other forms of "libertarian paternalism."
Because of this influence, it would be good if there were more ideological diversity in legal academia. Studies indicate that ideological diversity can improve the quality of discourse and scholarship. If all or most scholars in a given field have similar views, that increases the likelihood that some key issues and arguments will be ignored or at least relatively neglected.
As I have emphasized before (e.g. here and here), the desirability of greater ideological diversity doesn't mean schools should adopt affirmative action for non-left-wing legal academics, or that we should strive for a legal academy that "looks like America" in terms of the distribution of partisanship and ideology. But much can be achieved simply ending or significantly reducing ideological discrimination in faculty hiring.
As with racial, ethnic, and gender discrimination, ideological discrimination not only reduces diversity, but also reduces the quality of scholarship and teaching. Lower-quality candidates with the preferred views get hired in preference to better-qualified dissenters. Thus, we can potentially increase diversity and quality at the same time.
Even if discrimination ended completely, we would likely still have a disproportionate number of left-wing and Democratic lawprofs relative to the proportions of these groups in the general population. Among other things, highly educated people—especially in the Trump era—tend to skew left, or at least against the conservative right. But ending discrimination would nonetheless make legal academia more ideologically diverse than it is now.
UPDATE: In the original version of this post, I said I had not made any political contributions during the period in question. However, my wife reminds me that, back in 2017, I made a $250 contribution to anti-Trump Republican Senator Jeff Flake's abortive reelection campaign (who also had a lot of libertarian leanings). I did not donate to any Democratic campaigns during this time, though I did vote for the Democratic nominee in both the 2016 and 2020 presidential elections. Thus, I am included in Muller's data as one of George Mason's six Republican contributors! This is one of those cases where the donation data doesn't accurately reflect a person's overall partisan/ideological leanings.
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A.E. Houseman plays Harvard law Prof. Kingsfield in the classic 1973 movie, "The Paper Chase."Ilya Sominhttps://reason.com/people/ilya-somin/isomin@gmu.eduhttps://reason.com/?post_type=volokh-post&p=82686232024-03-12T21:01:35Z2024-03-12T21:01:35Z
The Pacific Legal Foundation, a prominent libertarian-leaning public interest firm is sponsoring two upcoming symposia, and soliciting contributions from legal scholars and other experts. The first is on regulatory takings. Here is the announcement and information on how to submit a proposal:
Pacific Legal Foundation and George Mason University's Journal of Law, Economics & Policy seek papers for a symposium titled "Too Far: Imagining the Future of Regulatory Takings," to be held at George Mason University Antonin Scalia Law School in October 2024.
A century ago, Oliver Wendell Holmes, speaking for the Supreme Court, assured us that "[t]he general rule at least is that while property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking." In the ensuing one hundred years, courts have struggled to draw the line defining "too far." Some still wonder whether such a line should even exist. As Justice Clarence Thomas recently said, "If there is no such thing as a regulatory taking, we should say so. And if there is, we should make clear when one occurs."
Applicable Research Topics
Pacific Legal Foundation seeks papers that offer fresh ideas on how to make "too far" more just, more concrete, and more principled. We welcome proposals that look at this problem from legal, economic, political, historical, and related angles, including empirical and nonempirical approaches.
Honorarium, Deadlines, and Submission Details
Please submit a brief proposal that describes your thesis and how your paper will contribute to the legal issues described above. Proposals should be submitted by April 15, 2024, to Ethan Blevins at eblevins@pacificlegal.org.
Authors of accepted papers will receive a $2,500 honorarium. In addition, papers will be presented at a symposium in October 2024 and published in a special edition of the Journal of Law, Economics & Policy.
Contact Details
For questions regarding the call for papers, please contact Ethan Blevins at eblevins@pacificlegal.org.
The Pacific Legal Foundation seeks papers for a research roundtable on "Answering the Chief Justice's Call on the Antiquities Act" to be held this July at our offices in Arlington, Virginia.
Here is a writeup of the background law, and the following is an excerpt from the call for papers at PLF's website:
In a 2021 statement accompanying the Supreme Court's order denying certiorari in Massachusetts Lobstermen's Association v. Raimondo, Chief Justice John Roberts made an open solicitation for "other and better opportunities" to consider "what standard might guide our review of the President's actions" under the Antiquities Act. The Chief Justice's call to the bar is overdue.
We seek papers that answer Chief Justice Roberts's call.
We are looking for ideas that get directly to the query posed by Chief Justice Roberts: "What standard might guide [the Court's] review of the President's actions" under the Antiquities Act?
Between hard-look review and no review, there must be some alternative. We are looking for proposed frameworks to fill this crucial gap in the law.
Is it possible to give meaning to the Act's "smallest area compatible" requirement without upsetting stare decisis (that is, by overturning Franklin v. Massachusetts and/or Dalton v. Specter)?
Can a novel standard of review for presidential authority be gleaned from the early-20th-century (pre-Administrative Procedure Act) jurisprudence?
Do pleading requirements have a role in judicial review of the president's statutory powers, as held by at least one circuit court?
Is it possible to distill certain of the "hard-look" factors into an appropriate framework for judicial review of the president's statutory powers?
In setting a standard of review for the president's statutory authority, does it matter that the Antiquities Act is a domestic statute, and the president cannot draw upon any independent Article II authority (as the president is able to do for delegations that implicate foreign policy)?
Could the Court's major questions or nondelegation doctrines inform a framework for judicial review of the president's statutory powers under the Antiquities Act?
Honorarium, Deadlines, and Submission Details
Please submit a brief research proposal that describes your thesis or research question(s) and intended methodology. Proposals should be submitted by March 25 to Will Yeatman at wyeatman@pacificlegal.org.
Authors of accepted papers will receive a $2,500 honorarium and will further benefit from feedback on their research at the workshop. Papers will be published on the PLF website.
I participated in a previous PLF symposium, and got a lot of useful exposure and feedback for my article "The Constitutional Case Against Exclusionary Zoning" (coauthored with Joshua Braver), which has since been accepted by the Texas Law Review.
NOTE: My wife, Alison Somin, is an attorney at PLF, but is not involved in assessing proposals for either of these symposia. Nor am I myself doing so. Please send proposals to the persons indicated above, not to me.
I recently saw Dune:Part 2. It's an impressive and powerful film that lived up to the promise of Part 1, which I also reviewed favorably. The acting, storytelling, and visual images, are all topnotch. Like Part 1, this movie also does a generally good job of conveying the complex plot of Frank Herbert's 1965 novel, on which it is based. That's no mean feat, given the difficulty of the task. But I do have reservations about parts of its treatment of the political themes of the book.
The plot revolves a struggle for power between two noble houses—the Atreides and Harkonnens—centered on the desert planet of Arrakis, which is the only known source of the Spice, the most valuable substance in the universe, because it is necessary for interstellar navigation and also greatly extends human lifespan. The Harkonnens ruled Arrakis for decades until Emperor Shaddam IV—ruler of the known Universe—ordered them to transfer it to the Atreides. Until that time, they brutally oppressed the native Fremen people.
Paul Atreides, is the son and heir of the Atreides leader Duke Leto. He is revealed to have vast psychic powers. Near the end of Part 1, a surprise attack by the Harkonnens and the Emperor kills Duke Leto and wipes out almost all of the Atreides forces. Paul and his mother, Jessica, flee to the Fremen. With the aid of legends that suggest he may be the long-awaited Fremen religious messiah (the "Mahdi"), Paul gradually becomes the leader of the Fremen in their struggle to overthrow the Harkonnens and the Emperor.
Frank Herbert famously said he "wrote the Dune series because I had this idea that charismatic leaders ought to come with a warning label on their forehead: 'May be dangerous to your health.'" This movie conveys that message brilliantly, though far less subtly than the book.
Some less careful readers of the novel come away with the impression that Paul is the hero and we should root for his triumph. The message of the movie is much more unambiguous. What initially seems like a war of liberation against oppressive occupiers gradually becomes a war to replace one awful authoritarian regime with another that seems likely to be just as bad or worse.
In the book, Paul and Jessica are more ambivalent about their gradual takeover of the Fremen; they often come off as sympathetic characters who only seek power because they have no other good option. The movie versions have fewer qualms, especially in the case of Jessica. The movie is also unequivocal in driving home the point that the prophecies that legitimate Paul's assumption of power were actually planted by the manipulative Bene Gesserit order (though the book is pretty clear on this, as well).
Some left-wing critics of the book series have argued that it is a "white savior" story, where a white outsider (Paul) liberates an indigenous people (the Fremen). That interpretation is grossly unfair to the book. The movie makes it even more difficult to advance this critique with a straight face.
Part 2 does give us a window into the evil of the Harkonnens and the Emperor, with the former coming off as cruel and vaguely fascist, and the latter an amoral political manipulator mainly interested in preserving his own power. Paul is right to oppose them. But the alternative he represents seems little better.
In most respects, Part 2 vividly brings to life key themes of the book, especially its warnings about the dangers of concentrated power and charismatic leadership. But there are two important deviations.
First, like Part 1, this movie tends to paper over the negative aspects of Fremen culture, as depicted in the book. The Fremen society we see in the book is rigidly hierarchical and deeply sexist. For example, when Paul kills the Fremen warrior Jamis in single combat, he inherits Jamis' "property"—including his wife Harah, and his children. Paul had the option of choosing to accept Harah as "wife" or as "servant" (he decides on the latter).
This incident and others like it are almost entirely omitted in the movie. Instead, the Fremen are portrayed as much more egalitarian, including giving women the same rights as men. Paul's Fremen paramour Chani even talks about about how the Fremen are all "equal." This would come as news to the Fremen in the book!
In my review of Part 1, I noted that director Denis Villeneuve "buries the negative aspects of Fremen society, and thus at times seem to buy into a crude 'natives good, white colonialists evil' narrative." This flaw is even more clear in Part 2. With the important exception of the manipulative legends implanted by the Bene Gesserit, Fremen culture is depicted as largely good, its problems caused almost entirely by evil outsiders.
I would have preferred that the movie stick closer to the book on this point. Like most real-world "indigenous" cultures, the Fremen society in the book has many injustices, and falls well short of liberal egalitarian ideals. This doesn't excuse the oppressive policies of occupying powers like the Harkonnens. But it does add a valuable layer of complexity and moral ambiguity to the story.
The second big divergence between the book and the movie is closely related to the first: the depiction of Chani. In the book, once Chani becomes Paul's lover, she also becomes completely devoted to his cause, and rarely seriously questions his actions. By contrast, movie Chani is skeptical of Paul's claims to leadership (she knows the prophecy is fake), worries that they will override Fremen self-determination, and gradually seems to turn against him. She becomes a kind of Fremen conscience of the story.
In the book, when Paul decides he must make a political marriage with Princess Irulan (the Emperor's daughter), Chani quickly accepts his decision to relegate her to the status of concubine (though we learn she will remain Paul's sole sexual partner; the arranged marriage is purely political). In the famous last lines of the book, Jessica reassures Chani that Irulan will "never know a moment of tenderness from the man to whom she's bound. While we, Chani, we who carry the name concubine – history will call us wives" (here, Jessica refers to her own former status as Duke Leto's concubine). In stark contrast, movie Chani clearly views Paul's choice as a betrayal of both her and the Fremen more generally.
I am not sure how to assess this change. Book Chani struck me as somewhat implausibly tolerant of Paul's behavior, even given the sexist mores of the society she was raised in. The movie version probably leans too far in the opposite direction. For related criticisms of the movie's depiction of Chani and other female characters, see this analysis (though I don't fully agree with it).
I have some smaller quibbles with the movie, as well. But, overall, Dune: Part 2 is an impressive film version of one of the most famous of all science fiction novels. If you liked Part 1, you will probably like this film even more. Villeneuve has indicated he intends to do a movie version of the next book in the series, Dune Messiah. I can't wait.
But I do, nonetheless, have some qualms about the film's depiction of some of the political themes of the novel. We'll have to see if these problems persist in Part 3.
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Dune, Part 2. Promotional Poster.Ilya Sominhttps://reason.com/people/ilya-somin/isomin@gmu.eduhttps://reason.com/?post_type=volokh-post&p=82683112024-03-11T02:30:57Z2024-03-10T21:06:37Z
Reason immigration writer Fiona Harrigan has a valuable new article surveying the growth of private migrant sponsorship over the last two years:
The two African refugees arrived in Oneonta, New York—a quaint, upstate college town of just over 12,000 people—in summer 2023. By then a group of volunteers had been preparing for them for "six, seven, eight years."
Mark Wolff, communication chair of The Otsego Refugee Resettlement Coalition (ORRC), says his group had to put its hopes of helping refugees on hold during the Trump administration, which cut the refugee cap to its lowest level ever. Even after Joe Biden's inauguration, with promises of a more humane immigration policy on the horizon, things didn't look good for their plan…
The ORRC had already begun to raise money and identify community partners. It had done its homework and it had momentum. So when the Biden administration announced the Welcome Corps—an initiative that would let private citizens take the lead on sponsoring and supporting refugees, rather than the longstanding government-led approach—the coalition knew it had found its way to welcome newcomers. "We were one of the first [private sponsor groups] in the United States to get approval," Wolff says…..
The Welcome Corps is one of several private sponsorship schemes to be rolled out in the last three years. From the Sponsor Circle Program for Afghans to Uniting for Ukraine to a program specifically for Cubans, Haitians, Nicaraguans, and Venezuelans (CHNV), Americans who are moved by scenes of suffering around the world can put those feelings into action.
Wolff's sentiment speaks to the promise of these young private sponsorship schemes: getting more Americans directly involved in the welcoming process, getting newcomers to the point of self-sufficiency more quickly, and improving outcomes for immigrant and native communities alike. At a time when Americans are increasingly concerned about migration into the country, these community-driven approaches could be key to rebuilding trust in both immigrants and immigration.
As Harrigan recounts in detail, the new private sponsorship programs—beginning with Uniting for Ukraine (in which I am a sponsor myself)—have enabled hundreds of thousands migrants fleeing oppression and war enter the United States much faster than the traditional government-driven refugee system, and at little cost to the public fisc. By giving migrants an alternative legal way to enter the US, they have also reduced congestion and disorder at the southern border. Overall, these programs are the Biden Administration's biggest and most successful immigration policy innovation.
But, as Fiona also notes, the programs have important limitations. All were established through the exercise of executive discretion, which means the next president could potentially terminate them at any time. That's a highly likely scenario if the next president turns out to be Donald Trump. Ideally, Congress would enact legislation preventing the executive from taking such action.
In addition, participants in most of these programs are only granted temporary residency and work permits (two years in the case of CNVH and Uniting for Ukraine, though participants in latter can now apply for two-year extensions, as can Afghan parolees). For reasons Fiona describes, it would be better if these rights were permanent.
The only private sponsorship program that does grant permanent residency rights is Welcome Corps. But participants are required to meet the absurdly narrow legal definition of "refugee" to be eligible. Congress could potentially fix this problem by expanding the definition.
Sadly, given the current political environment, it's unlikely Congress will successfully address any of these issues in the near future. The long-run fate of the new private sponsorship programs may well depend on the outcome of the 2024 election.
One of the standard rationales for deporting undocumented migrants is that it creates more job opportunities for natives. If employers can't hire migrants, they will, presumably, hire more native-born citizens. In a recent article for the Peterson Institute of International Economics, my George Mason University colleague Michael Clemens—one of the world's leading immigration economists—explains why this intuitive assumption is false. In reality, mass deportations destroy more jobs than they create:
As this candidate's top adviser on immigration has stated: "Mass deportation will be a labor-market disruption celebrated by American workers, who will now be offered higher wages with better benefits to fill these jobs."
But the best economic research on past deportations suggests the opposite. The immigrants being targeted for removal are the lifeblood of several parts of the US economy. Their deportation will instead prompt US business owners to cut back or start fewer new businesses, in some cases shifting their investments to less labor-intensive technologies and industries, while scaling back production to reflect the loss of consumers for their goods.
Prior episodes of mass deportations and exclusions have occurred at several moments in US history. Research has shown that, far from generating economic benefits, their net effect was to reduce employment and earnings for US workers—in the short run and long run.
The rest of the article outlines the extensive empirical evidence on this point.
The key theoretical point is that, while deporting immigrants often does create jobs for natives who directly compete with them, it destroys more elsewhere in the economy. For example, immigrant workers produce goods that are used by other enterprises, thereby creating jobs there. Immigrants are start new businesses at higher rates than natives. That, in turn, creates new jobs for both natives and immigrants. And, of course, immigrant workers produce goods and services that greatly improve the options available to native-born consumers (thereby indirectly making them wealthier). Clemens notes a number of other relevant indirect effects. Overall, immigration creates enormous economic benefits for natives, and restricting it greatly reduces their welfare and economic liberty (though migrants who get barred or deported suffer suffer even more).
One helpful way to think about the issue is to ask whether the twentieth-century expansion of job market opportunities for women and blacks helped white male workers, on net, or harmed them. Some white men likely were net losers. If you were a marginal white Major League Baseball player displaced by Jackie Robinson or other black baseball stars after MLB was integrated, it's possible that you would never find another job you liked as much as that one. But the vast majority of white men were almost certainly net beneficiaries by virtue of the fact that opening up opportunities for women and blacks greatly increased the overall wealth and productivity of society.
If, today, we barred women from the labor force, or restricted them to the kinds of jobs open to them a century ago, some male workers would benefit. For example, freed of competition from female academics, I might get a pay increase or become a professor at a higher-ranked school.
But, overall, men would be much poorer, by virtue of living in a far less productive and innovative society. And many men would lose jobs or suffer decreases in wages because their own productivity depends in part on goods and services produced by women. While I might have a more prestigious job, I would likely be poorer, overall, because I could no longer benefit from many of the goods, services, and innovations produced by female workers.
Similar consequences would occur if we were to reinstitute racial segregation, thereby severely restricting the job opportunities of black workers. While some whites would come out ahead, most would be net losers, as our economy becomes much less productive.
The key point to remember is that economy—including the labor market—is not a zero-sum game. Men and women, blacks and whites, and immigrants and natives—can all prosper together, if only the government would let them.
Michael Clemens' most famous article gives some sense of the enormous benefits of dropping immigration restrictions, which could well result in a doubling of world GDP. While migrants and their families would benefit disproportionately, there would also be an enormous benefit to native-born citizens.
Today, federal District Court Judge Drew Tipton issued a ruling in Texas v. Department of Homeland Security, rejecting a suit filed by a coalition of red states led by Texas, challenging the legality of the Biden Administration's CNVH parole program (also sometimes called "CHNV"), which allows migrants from four Latin American countries to enter the United States and live and work here for up to two years, if they can find a US-resident sponsor willing to support them.
Judge Tipton (a conservative Trump appointee) ruled that the states lacked standing to bring a lawsuit challenging the program. The plaintiff states argued Texas has standing because parolee migrants entering the state would lead the state government to incur various additional costs, thereby proving the necessary "injury in fact" required by Supreme Court standing precedent. But Judge Tipton concluded the evidence shows that the CNVH program actually reduces the number of migrants from these countries who enter the state. Thus, it doesn't increase the costs borne by the state, and therefore Texas hasn't suffered an "injury" sufficient to get standing:
To prove an injury in fact, Texas must show "an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical." Lujan, 504 U.S. at 560, 112 S.Ct. at 2136…. In the context of state challenges to federal immigration policies, states have historically proven injury-in-fact by demonstrating the additional costs paid across state-funded industries because of additional aliens….
Texas's theory for standing "was based on allegations that the CHNV processes were likely to increase the number of CHNV nationals in the State and thus increase the State's costs…." And as observed by Intervenors [a group of sponsors of CHNV participants], the trial record disproves this theory…. Intervenors argue that the undisputed data presented at trial confirms that the CHNV Parole Program has reduced the total number of individuals from the four countries, and consequently, Texas has actually spent less money as a result of the Program….
Judge Tipton canvasses the relevant Supreme Court and Fifth Circuit court of appeals precedent and finds that the right way to measure costs is to consider the net impact of the program in question, not just the costs that may be created by program beneficiaries taken in isolation. Since the evidence shows the program reduces the total number of CNVH migrants in Texas, it actually saves Texas money, and thus the state lacks standing. Earlier in the litigation, the state plaintiffs stipulated that only Texas's costs were to be considered, not those of the other states.
How does the CNVH parole program actually reduce the number of migrants from these four countries entering Texas? Because it allows program participants to come to the US legally without ever having to cross the southern border, many migrants who might otherwise have tried to enter Texas or other border states illegally instead seek legal entry under CNVH. Many go directly to their final destinations in other states by ship, plane, or other means of transportation. Even those who do enter through border states might not stay there very long.
I covered this point in much more detail in an amicus brief I filed defending the legality of the program, on behalf of the Cato Institute, MedGlobal (a medical non-profit serving migrants and refugees, among others), and myself. Our brief does not address standing. But, for reasons explained in the brief, the alleviation of pressure on the border also matters for the merits of the case (which Judge Tipton didn't reach). See also my September 2023 article about the case in the Hill.
I am skeptical of narrow definitions of standing and would have preferred the court to uphold the CNVH program on the merits. However, Judge Tipton does make a good argument that this is the right result under current standing precedent. It is also broadly consistent with the Supreme Court's June 2023 8-1 decision in United States v. Texas, holding that many of the same red states that brought this case lack standing to challenge the Biden administration's immigration enforcement guidelines, even though the states argued that the administration's decision not to deport certain migrants increases states' costs (though there are also ways to potentially distinguish the two cases).
As David Bier and I explain in a November USA Today article, CNVH could do even more to alleviate border problems—and help migrants fleeing horrific oppression and violence—if the Biden administration were to expand it to cover more countries, and lift the arbitrary 30,000 per month cap on the number of participants. The cap has created a massive backlog of applicants.
And, while it may not be relevant to standing analysis (because of the indirect nature of such effects), the economic benefits of increased migration generally outweigh any additional costs to state and federal governments, especially given the immigrants also pay taxes.
This decision is likely to be appealed to the Fifth Circuit. Alternatively, the states might try to find some other way to get standing. The latter, however, may prove difficult if Judge Tipton's ruling stands. For the moment, however, the CNVH program can continue.
This case likely isn't over. But it's not a good sign for the states that they lost in district court despite the fact they chose to file in this district specifically because they were likely get Judge Tipton to hear the case. He's a conservative whom many observers expected to be sympathetic to the states' position.
NOTE: As indicated above, I filed an amicus brief in this case defending the legality of the program, on behalf of the Cato Institute, MedGlobal, and myself. However, the brief does not address the issue of standing. What I write on that question represents solely my own views, and not those of Cato, MedGlobal, or anyone else.
I am, as discussed in the brief, a sponsor in the Uniting for Ukraine program, which is based on the same statutory authority as CNVH, but was not challenged by plaintiff states.
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Venezuelans fleeing the socialist regime of Nicolas Maduro.Ilya Sominhttps://reason.com/people/ilya-somin/isomin@gmu.eduhttps://reason.com/?post_type=volokh-post&p=82682422024-03-08T22:32:07Z2024-03-08T21:45:09Z
Earlier today, Lawfare published my article criticizing the Supreme Court's recent article in the Trump Section 3 disqualification case. Here is an excerpt from the introduction:
The Supreme Court's unanimous recent decision in Trump v. Anderson overturned the Colorado Supreme Court ruling disqualifying Donald Trump from the presidency under Section 3 of the 14th Amendment. It does so on the grounds that Section 3 is not "self-executing." In a per curiam opinion jointly authored by five justices, including Chief Justice John Roberts, the Court ruled that only Congress, acting through legislation, has the power to determine who is disqualified and under what procedures. This outcome was predictable based on the oral argument… But the Court nonetheless got the issue badly wrong….
Section 3 states that "No person" can hold any state or federal office if they had previously been "a member of Congress, or … an officer of the United States" or a state official and then "engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof."
By focusing exclusively on the self-execution issue, the Court left for another day all the other arguments at stake in the Trump case, such as whether the Jan. 6, 2021, attack on the Capitol qualifies as an "insurrection," whether Trump "engaged" in it, whether his actions were protected by the First Amendment, whether Trump received adequate due process, and whether the president is an "officer of the United States" covered by Section 3. The justices may hope they can avoid ever having to decide these questions.
In my view, Trump deserved to lose on all these points, and the Colorado Supreme Court correctly rejected his arguments on them. But I think he did have a plausible argument on the issue of whether his involvement in the Jan. 6 attack was extensive enough to qualify as "engaging" in insurrection. At the very least, he had a better argument there than on self-execution. The Court's resolution of the latter issue is based on badly flawed reasoning and relies heavily on dubious policy arguments invoking the overblown danger of a "patchwork" of conflicting state resolutions of Section 3 issues. The Court's venture into policy was also indefensibly one-sided, failing to consider the practical dangers of effectively neutering Section 3 with respect to candidates for federal office and holders of such positions.
The Society for the Rule of Law (formerly known as Checks and Balances) has posted the video of today's webinar on "Impeachment of the Rule of Law," where I appeared along with fellow VC blogger Keith Whittington. Here is the video:
We covered a number of topics, including the history and purpose of impeachments, how the utility of this institution has been undermined by partisanship and polarization, the recent impeachment of DHS Secretary Alejandro Mayorkas, and ongoing efforts to impeach Biden.
Keith is one of the nation's leading experts on impeachment, and I look forward to reading his forthcoming book on the subject.
A major consideration underlying the Supreme Court's recent ruling in Trump v. Anderson was fear of a "patchwork" of conflicting state determinations on the application of Section 3 of the Fourteenth Amendment to Trump (and, potentially, other candidates for federal office). This concern united all nine justices, even as they disagreed on a number of other key points. The majority per curiam opinion worries that "state-by-state resolution of the question whether Section 3 bars a particular candidate for President from serving would be quite unlikely to yield a uniform answer." Similarly, the concurring opinion written by the three liberal justices invokes the specter of "a chaotic state-by-state patchwork, at odds with our Nation's federalism principles."
In previous writings, I have argued this issue is overblown because federal courts can review state decisions on federal legal issues. And, to the extent the concern is valid, it is a natural consequence of the Constitution's assignment of power over election administration to state governments, as opposed to a federal agency with authority to impose uniform nationwide rules. See also Michael Rappaport's and Chris Green's originalist critques of the Court's reasoning. They argue that state diversity on election policy is a part of the Framers' original design. As Green puts it, "lack of uniformity in the Electoral College is a feature, not a bug."
In this post, I argue that some divergence between states on Section 3 issues isn't necessarily bad. An election law "patchwork" has its flaws. But it may often be better than uniform wrongness. I do not claim that decentralization of election law is clearly superior to uniformity, merely that the issue is a much closer call than often assumed. If so, there is even less justification than there would be otherwise for the Supreme Court to base its decision in part on anti-"patchwork" policy considerations.
Imagine, for the sake of argument, that Trump or some other presidential candidate really is an insurrectionist who deserves to be disqualified under Section 3. Would it not be better if he is disqualified from running in at least some states, than if he is allowed on the ballot everywhere because the federal government takes no action or makes a mistaken decision that binds the entire country? In the former scenario, disqualification in some states might prevent the insurrectionist from winning the election, thereby saving the nation from having a constitutionally ineligible president who poses a grave menace to liberal democracy. Disqualification in some states might also incentivize the insurrectionist candidate's party to choose someone else instead, even if only to increase the chances of winning the general election.
In this scenario, a federalist patchwork seems clearly superior to a uniform-but-wrong decision imposed by the federal government. As David French puts it in a New York Times column on the Supreme Court's ruling, "[c]haotic enforcement of the Constitution may be suboptimal. But it's far better than not enforcing the Constitution at all."
The same logic applies to disqualifications for other federal offices. It's far better that insurrectionist candidates for the House and Senate be disqualified in only some states than that they be permitted to run and take office everywhere.
And the same goes for enforcement of other constitutional qualifications for the presidency and other federal offices, such as the Twenty-Second Amendment, the requirement that the president be at least 35 years old, and so on. Better to enforce them effectively in only some states than not at all.
The above assumes that enforcement of constitutional constraints on office-holding is generally good. I admit I think this is not true in the case of the Natural Born Citizen Clause, which I have argued is indefensible and unjust. But the other restrictions generally make good sense, including Section 3. Liberal democracies have good reason to bar some types of people from holding high office, especially those whose track record indicates they are incipient authoritarians. And even the Natural Born Citizen Clause is still binding law, unless and until revoked by a constitutional amendment.
The federal government might over-enforce constitutional constraints, as well as under-enforce them. Imagine a candidate who is unjustly accused of being an insurrectionist. Here, it's better if some states allow him or her on the ballot than if the federal government bars the candidate nationwide. The same goes for false accusations of violating other constitutional constraints on office-holding.
The above arguments might not move you if you think uniform federal resolution of these issues is highly likely to reach correct results. But if you believe federal officials are likely to err or simply under-enforce through inaction, then the case for a federalist patchwork approach becomes much stronger.
Under-enforcement through inaction is especially likely in the case of Section 3 disqualification. Particularly in our highly polarized age, it is highly unlikely that Congress will enact meaningful enforcement legislation of the kind the Supreme Court majority held is necessary. Thus, if such legislation is required, there will be no meaningful enforcement of Section 3 against candidates for federal office for a long time to come.
There is a tradeoff here: the risk of flawed decisions by some states must be balanced against the risk of uniformly wrong federal ones—and situations where the federal government simply lets constitutional provisions atrophy through inaction. From a pragmatic or consequentialist point of view, which is better depends on how likely the federal government's uniform determinations are to be wrong —and how likely the feds are to simply fall down on the job through inaction.
On balance, I think letting states take the lead, subject to the important constraint of judicial review by federal courts, is better than relying on the federal government exclusively. The latter can, of course, still enact enforcement legislation under Section 5 of the Fourteenth Amendment (for Section 3). But such legislation should not be a mandatory prerequisite to enforcement by states. Admittedly this is a tentative judgment, and people with greater confidence in the federal government's judgment may have good reason to doubt it.
On a variety of issues, I support decentralization because it empowers people to vote with their feet, thereby leading to better decision-making than is usually feasible under ballot-box voting. But it's unlikely many people will vote with their feet for states with better procedures for addressing candidate-disqualification issues.
Thus, the case for decentralization here is weaker than for decisions on many other issues. But, depending on how often the federal government is likely to err, it might still be strong enough to outweigh the case for total federally-mandated uniformity. A uniformly wrong decision is even worse than a patchwork.
Once we take account of the dangers of uniformly wrong federal decisions, it is far from obvious that a "patchwork" approach to issues like Section 3 disqualification is necessarily a bad thing. In my view, the tradeoff between the costs and benefits of uniformity is a policy issue that was determined by the framers and ratifiers of the Constitution, not a matter for the Supreme Court to decide.
But if the justices insist on basing their ruling on this policy question, they should at least have considered both sides of it. Instead, they overrated the risks of divergent state judgments, while completely ignoring those of misguided uniformity.
Michael Rappaport is one of the nation's most prominent originalist legal scholars, and author of such important works as Originalism and the Good Constitution (coauthored with John McGinnis). For those who care, he's also considerably to the right of me politically. In a recent post at the Originalism Blog, he skewers the Supreme Court's recent ruling in Trump v. Anderson, the Section 3 disqualification case:
The Supreme Court has decided by a 9-0 vote that former President Donald Trump cannot be kept off the ballot. In my view, the reasoning in the opinion is a disaster…. While I agree with the Court that Trump cannot be disqualified, it is not because of the nonoriginalist, made-up argument in the majority and concurring opinions. It is because section 3 applies to those who engage in an insurrection, not those who aid and assist a riot.
In my view, section 3 is self-enforcing. This follows pretty clearly from the constitutional text. Section 3 prohibits an oath-breaking insurrectionist from serving in certain offices. State officials are required by oath to respect this constitutional provision. That Congress is specifically given the authority to eliminate the bar by a two-thirds vote makes this even clearer. The section simply cannot be read as saying that only Congress or the federal government can enforce it.
The opinion relies upon spurious, non-textual reasoning. It says that the 14th Amendment restricts state autonomy and therefore it is unlikely that the state was allowed to enforce it against federal candidates. But the 14th Amendment restricts state autonomy only as to the rules it sets. For example, it prohibits states from violating the equal protection of the laws. But it does not prohibit the state from enforcing the equal protection clause. On the contrary, the state can pass a law that enforces the equal protection clause…..
The Supreme Court opinion says that nothing in the Constitution delegates to the states the power to disqualify federal candidates. But this is obviously mistaken under the original meaning. The Constitution says that "each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress." This provision allocates to the states the power how to run their presidential elections. State legislatures could decide not to hold elections at all but could assign their electoral votes to the candidate of their choosing. States have broad authority to structure their presidential elections. While this authority might be subject to other constitutional limitations, the Court does not point to any such limitation here.
Some might question whether the Constitution could really have allowed individual states to disqualify people for insurrections, given how difficult it might be to define this term. But the Constitution did not leave this issue unaddressed. Congress has the power, under section 5 of the 14th Amendment, to preempt state disqualification by creating a federal procedure for such disqualifications. Even without such federal legislation, the Supreme Court has the authority to hear challenges to the state determinations, as it did in this case (although it is possible that such challenges might not lead to complete national uniformity as to section 3 questions….).
It is true that presidential elections have come to be viewed as national elections. This view has led many people to view the electoral college as inconsistent with such national elections and to argue for a national popular vote method instead. But that is not the system that the Constitution establishes. Instead, the Constitution grants significant authority to states over presidential elections. That is the original meaning.
I think Mike is right here on virtually all counts. I offered some similar criticisms of the Court's ruling here.
As Mike suggests, even if the Court had ruled against Trump on the self-execution issue, he could have potentially avoided disqualification on one of several other grounds, one of which is the argument that the January 6 attack was not an "insurrection," but merely some other kind of violence.
In my view, the the January 6 attack on the Capitol was pretty obviously an insurrection (see also here and here). The argument on the other side is so weak that Trump's lawyer Jonathan Mitchell chose not to advance it in his brief before the Supreme Court.
Mitchell did make the much stronger argument that Trump's involvement in the attack wasn't great enough to qualify as "engaging" in insurrection. I think that was the best argument on Trump's side of the case, though I also think the Colorado Supreme Court offered compelling reasons to reject it.
Be that as it may, Michael Rappaport is right about the federal Supreme Court's reliance on the claim that Section 3 isn't self-executing with respect to candidates for federal office. It is, as he puts it, "an unprincipled, pragmatic resolution" of the case, one that cannot be justified on originalist grounds.
I am less convinced he is right to suggest this outcome occurred because the Court's "self-interest was severely implicated." Perhaps the justices were driven by genuine, even if overblown, fears that letting states adjudicate Section 3 issues with respect to candidates for federal offices would lead to a chaotic "patchwork" of conflicting rulings. But if so, that's still a triumph of consequentialist "living constitution" reasoning over originalism.
Today's unanimous per curiam Supreme Court decision in Trump v. Anderson overturns the Colorado Supreme Court ruling disqualifying Donald Trump from the presidency under Section 3 of the Fourteenth Amendment. It does so on the ground that Section 3 is not "self-executing." Thus, only Congress, through special legislation, has the power to enact legislation specifying which people are to be disqualified and under what procedures. This outcome was predictable based on the oral argument. But it is nonetheless badly wrong.
Section 3 states that "No person" can hold any state or federal office if they had previously been "a member of Congress, or… an officer of the United States" or a state official, and then "engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof."
Under the Court's reasoning only Congress, through special legislation, has the power to enact legislation specifying which people are to be disqualified and under what procedures—at least when it comes to candidates for federal office, and officials holding those offices. The majority claims that Congress' Section 5 power to enact "appropriate" legislation enforcing the Fourteenth Amendment is the exclusive mode of enforcing Section 3.
There are multiple flaws in the Court's reasoning. Start with the fact that there is no good reason to believe that Section 5 is the exclusive mode of enforcing Section 3. As the Colorado Supreme Court pointed out in its ruling, Section 5 allows Congress to enforce not just Section 3, but every other part of the Fourteenth Amendment, including its protections against racial and ethnic discrimination, the Due Process Clause, and more. All these other provisions are considered to be self-executing, under longstanding Supreme Court precedent. Thus, state governments and federal courts can enforce these provisions even in the absence of federal Section 5 enforcement legislation. Otherwise, as the Colorado Supreme Court notes, "Congress could nullify them by simply not passing enacting legislation." Why should Section 3 be any different? Today's Supreme Court decision doesn't give us any good answer to that question.
The Supreme Court ruling also notes, following longstanding precedent, that Congress' Section 5 power is "remedial" in nature: it must be "congruent and proportional" to violations of the Amendment it is intended to remedy. If Section 5 legislation is supposed to be remedial—including when it comes to enforcing Section 3—that implies someone else—state governments and federal courts—has the initial responsibility for ensuring compliance with Section 3. The role of Section 5 is to remedy violations of that duty.
The per curiam opinion emphasizes the need for uniformity in determining eligibility for federal office, and argues that states lack the power to make such determinations:
Because federal officers "'owe their existence and functions to the united voice of the whole, not of a portion, of the people,' " powers over their election and qualifications must be specifically "delegated to, rather than reserved by, the States." U. S. Term Limits, Inc. v. Thornton, 514 U. S. 779, 803–804 (1995)…. But nothing in the Constitution delegates to the States any power to enforce Section 3 against federal officeholders and candidates.
This argument ignores the longstanding role of states in enforcing and adjudicating other constitutional qualifications for candidates for federal office, such as the requirements that the president must be 35 years old, and a "natural born" citizen of the United States. In 2016, there was litigation in multiple states over claims brought by Trump supporters to the effect that Texas Sen. Ted Cruz, his chief rival for the GOP presidential nomination, was not a "natural born" citizen. State courts in Pennsylvania and New Jersey ruled that Cruz was eligible. But no one doubted that they had the authority to adjudicate the issue.
In a 2012 decision written when he was a lower court judge on the US Court of Appeals for the Tenth Circuit, Supreme Court Justice Neil Gorsuch upheld Colorado state officials' decision to bar from the ballot a would-be presidential candidate who was clearly not a natural born citizen. Then-Judge Gorsuch wrote that "a state's legitimate interest in protecting the integrity and practical functioning of the political process permits it to exclude from the ballot candidates who are constitutionally prohibited from assuming office." This reasoning applies to Section 3 just as readily as to the Natural Born Citizen Clause.
The main motive for the Court's decision may be the fear that letting states adjudicate Section 3 disqualifications will, lead to a "patchwork" of conflicting procedures and determinations. On top of that, there is fear that partisan state officials will seek to disqualify opposing-party candidates for specious reasons.
These are legitimate concerns. But, for reasons outlined in my commentary on the oral argument, they are overblown:
If state officials or state courts reach unsound or contradictory legal conclusions about the meaning of Section 3 (e.g.—by adopting overbroad definitions of what qualifies as an "insurrection"), their determinations could be reviewed in federal court, and the Supreme Court could impose a uniform definition of the terms in question. Indeed, it could do so in this very case! Non-uniform interpretations of provisions of the federal Constitution by state and lower federal courts can occur in many contexts. Settling such issues is one of the reasons why we have a Supreme Court that can be the final arbiter of federal constitutional questions.
Conflicting legal and factual determinations about candidate eligibility for office can also arise with respect to other constitutional qualifications for the presidency. For example, there might be disputes over the accuracy or validity of a candidate's birth certificate (recall "birtherist" claims that Barack Obama wasn't really bon in the United States, and that his birth certificate was fake).
The possibility of divergent conclusions on such issues is an unavoidable aspect of a system in which control over elections for federal offices is largely left to individual states, rather than reserved to a federal government agency. Perhaps the Framers of the Constitution made a mistake in setting up that system. Maybe it would be better if we had a national agency administering all elections for federal office, like Elections Canada, which fulfills that function in our neighbor to the north.
But the framers chose otherwise. As the per curiam opinion recognizes,"the Elections and Electors Clauses… authorize States to conduct and regulate congressional and Presidential elections, respectively. See Art. I, §4, cl. 1; Art. II, §1, cl. 2." That gives state governments initial authority (subject to federal judicial review) to enforce other constitutionally required qualifications for federal office. Section 3 is no different.
Concerns about a potential "patchwork" of conflicting state rulings are ultimately policy objections to the Constitution's decentralized state-by-state scheme of election administration. As the conservative justices (rightly) love to remind us in other contexts, courts are not permitted to second-guess policy determinations that are under the authority of other branches of government or—as in this case—the framers and ratifiers of the Constitution.
While today's Supreme Court opinion is unanimous, it's notable that both Justice Amy Coney Barrett (writing for herself alone) and the three liberal justices (in a joint opinion) wrote concurrences that seem to reject or at least call into question much of the majority's reasoning. I will likely have more to say about these opinions later.
By focusing exclusively on the self-execution issue, the Court left for another day all the other arguments at stake in the Trump case, such as whether the January 6, 2021 attack on the Capitol qualifies as an "insurrection," whether Trump "engaged" in it (the claim that he didn't strikes me as the best argument for his side of the case), whether Trump received adequate due process, and whether the president is an "officer of the United States" covered by Section 3. The justices likely hope they can avoid ever having to decide these questions!
The one good aspect of today's ruling is that it eliminates nearly all remaining uncertainty about whether Trump can assume the presidency if he wins the 2024 election. By holding that Section 5 enforcement legislation is the sole mechanism by which federal office-holders can be disqualified, the decision forestalls such potential scenarios as a Democratic Congress refusing to certify Trump's election. In theory, Congress could enact new enforcement legislation between now and January 20, 2025 (when Trump would take office, should he win). But that is incredibly unlikely.
The price of certainty is that Section 3 is largely neutered with respect to federal office-holders. Unless and until Congress enacts new Section 5 enforcement legislation, former officeholders who engaged in insurrection will be mostly free to return to power, and try their hand at subverting democracy again.
Perhaps political norms will keep that from happening. But if norms were that effective, Trump probably would never have been elected to office in the first place, and he certainly would not once more be a leading candidate for the presidency today.
Finally, I should acknowledge an error I made in gauging what the Supreme Court was likely to do in this case. At an academic conference on Section 3 held at the University of Minnesota in October 2023, I said that if this issue came to the Supreme Court, there would be a 50-50 chance of a ruling against Trump. It's now obvious I seriously overestimated the likelihood of such a result, an error likely caused by underestimation the justices' concerns about the potential dangers of a "patchwork" of divergent state rulings on disqualification. When commentators err, they should acknowledge their mistakes, not try to bury them and hope everyone forgets. This is my acknowledgement.
NOTE: I will have more to say about the ruling in an article likely to be published within the next few days.
UPDATE: I should perhaps note I filed an amicus brief in the case, which addressed an issue largely left unaddressed by today's decision: whether a criminal conviction for insurrection is a required prerequisite for Section 3 disqualification.
Two podcast interviews I recently did are now available on Youtube. The first is an interview about nationalism which is part of Gerry Bourdeau's new Argue with Me podcast series. It is about the critique of nationalism outlined in my recent National Affairs article, "The Case Against Nationalism" (coauthored with Cato Institute scholar Alex Nowrasteh):
We discuss what nationalism is, why it's awful (including some ways in which it is similar to socialism), and potential alternatives to it.
The Argue With Me series is relatively new. But Bourdeau has already posted interviews with several prominent (mostly libertarian or libertarian-leaning) economists and political theorists, including David Friedman and Chris Freiman. Check it out.
The second podcast is about the legal and moral dimensions of the current situation at the US southern border. It is part of Michael Liebowitz's Rational Egoist podcast series.
We cover a number of issues, including whether illegal migration qualifies as "invasion" (subject of a notable recent court decision that came down only after we filmed this), the conflict between Texas and the federal government, and how to address the border situation in accordance with libertarian principles (and liberal ones, more generally).
Along the way, we also discuss a couple of really awful legal arguments that have gotten a considerable attention on Twitter/X (e.g.—claims that private citizens who house migrants are somehow violating the Third Amendment). The useful lesson here is that the fact that someone is a Twitter "influencer" with a large following, doesn't mean they know what they are talking about. This is true of the right-wing "influencers" we discuss in the podcast, but it's also true of many left-wing ones, as well.
I outlined my take on what to do with the border situation in greater detail in this USA Today article (coauthored with David Bier). See also this post on why the supposed "migrant crisis" is in in fact primarily caused by migration restrictions and regulations banning most asylum seekers from working legally (exclusionary zoning is also a significant contributing factor in some cities).
Back in January, I wrote a post inspired by economist Bryan Caplan's new book You Will Not Stampede Me: Essays on Non-Conformism(he summarizes its themes here). While I agree with much of Bryan's praise of nonconformism, I outlined three types of situations where conformism is often a useful heuristic: 1) social norms on issues you don't care much about, 2) deferring to the norms and traditions of institutions established by voluntary interactions in markets and civil society (as opposed to coercion), where people can "vote with their feet" and 3) deference to experts in situations where they are likely to have superior insight to that of laypeople. Bryan has now responded to these points. It turns out he largely agrees that conformism is often useful in these three situations. He just thinks they rarely arise. I believe they are more common than he supposes.
Here's Bryan on my point 1:
I agree in principle, but deny that they "come up often." Ilya's scenario requires that (a) other people around you care a lot about some issue even though (b) you barely care at all. But in any given society, there is a fairly short list of issues that others take very seriously. Given this high bar, how often will you coincidentally be indifferent or nearly so?
I don't think this cases requires that "people around you care a lot." They need only care enough to impose some social sanctions on those who violate the norm in question. If you oppose the norm, but don't actually care much about it, conformism will often make good sense. I think situations like this come up all the time, particularly if you are a non-conformist who tends to question tradition and conventional wisdom.
For example, I was never convinced there was a good reason to switch from using "black" to using "African-American." But once the latter became the norm in academic and intellectual writings, I mostly followed it in my own work, because I didn't actually care much about this terminological question, and therefore concluded it wasn't worth alienating readers over. More recently, "black" (or "Black" with a capital B) has come back into vogue, and I have quietly shifted my own usage.
Sure, but a key non-conformist insight is, "Don't fear to vote with your feet"! Foot voting works poorly if conformity is high….
If you're new to an institution and have little knowledge of how it works, "Wait and see" is good advice. Yet how often does this exception come up? Pace Hume, by the time you are an adult, your experience with familiar institutions is a good guide to unfamiliar institutions. What's true at GMU is basically true at UT. Caution might advise you to wait and see for a month. After you've waited and seen, though, why keep deferring to the same old silliness?
Foot voting can work well even if conformity is high. In that world, most people conform to the norms of whatever institution or group they are in. But they can still vote with their feet for groups with different norms.
On the other point, I think people often find themselves in new institutions, especially when—as in the modern world—we often switch jobs and even careers. Even if you stay in the same field your whole life, different employers in the same industry will sometimes have widely divergent institutional cultures.
Bryan on deference to experts:
In absolute terms, Ilya's position on experts is highly non-conformist. Don't trust experts if they have a… strong political bias, strong financial incentives to reach an approved answer, or stray outside of their area of expertise. Good advice, but it enjoins deep skepticism of almost all of the alleged experts on hot-button topics.
Whether my position is "highly non-conformist" depends on what you compare it to. It's non-conformist relative to "always defer to experts," but quite conformist compared to the increasing tendency (including in some libertarian circles) to deny deference to "establishment" experts across the board.
I would add that the issue of deference to experts isn't limited to "hot-button issues." It comes up all the time across a variety of decisions we make almost every day, when it comes to questions as varied as diet, medical care, investment decisions, education, and much else.
Finally, Bryan argues that intellectuals are already highly conformist, and therefore perhaps don't really need advice outlining where conformism can be beneficial:
I know intellectuals. Lots of intellectuals. Legions of intellectuals. The vast majority are highly conformist. They often hold views that are unpopular in the broader population, but only because they slavishly conform to their intellectual subculture.
It is indeed true that intellectuals are often conformist on issues that have high salience within their subculture. For example, left-wing intellectuals often rigidly conform to "woke" norms on issues of race and gender. But, even with the subculture, intellectuals strike me as more likely than the average person to disobey or ignore other, less salient social norms. This may be because intellectuals care less about such norms, or because they (like stereotypical nerds) tend to have relatively lower social skills. But the experience of twenty-five years in academic and intellectual circles leads me to conclude intellectuals are in fact less conformist on a variety of dimensions than the average person is.
That said, both my generalizations about intellectuals and Bryan's are based on conjectures from personal experience, rather than systematic evidence. To really resolve this issue, we would need systematic data. Perhaps survey data or experimental evidence could give us a better handle on how conformist intellectuals really are.
In sum, there is much to be said for various types of non-conformism. Though, I am less hostile to conformism than Bryan, I am much more sympathetic to non-conformism than the average person is. But the audience for this blog and many of my other writings, is disproportionately made up of academics, intellectuals, libertarians, and others who tend to be suspicious of conformism. That constituency sometimes could use a reminder of the reasons why conformism isn't all bad.
Earlier today, as Orin Kerr notes, federal district court Judge David Alan Ezra issued a decision holding—among other things—that illegal migration does not qualify as "invasion" under the Constitution. Article I, § 10, Clause 3 of the Constitution states that "No State shall, without the Consent of Congress … engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay." Texas claims that undocumented migration and cross-border illegal drug smuggling qualify as an invasion under this Clause, and therefore authorize Texas to "engage in war" in response, including taking measures that would otherwise be barred by federal statute.
In this case, Texas is defending the legality of SB 4, a news state law that criminalizes unauthorized migration and gives Texas state courts the authority to order removal of migrants convicted under the law. If Texas's invasion argument fails, SB 4 might be preempted by federal law.
Judge Ezra's ruling is far from the first court decision to conclude that illegal migration is not invasion. There have been several previous such cases, including three appellate court decisions, and Judge Ezra's own recent ruling in United States v. Abbott, a case where the federal government is suing Texas for installing floating buoy barriers in the Rio Grande River in violation of the federal Rivers and Harbors Act of 1899 (that decision was upheld by the US Court of Appeals for the Fifth Circuit, but the case is now under review by the en banc Fifth Circuit.
But today's opinion is by far the most thorough judicial analysis of this important issue. Judge Ezra outlines extensive evidence indicating that the text and original meaning of the the Constitution indicates that only an armed attack qualifies as "invasion":
Ultimately, all tools of constitutional construction cut against Texas's position. Contemporary definitions of "invasion" and "actually invaded" as well as common usage of the term in the late Eighteenth Century predominantly referred to an "invasion" as a hostile and organized military force, too powerful to be dealt with by ordinary judicial proceedings. This Court could not locate a single contemporaneous use of the term to refer to surges in unauthorized foreign immigration. The text and structure of the State War Clause imply that "invasion" was to be used sparingly for temporary, exigent, and dangerous circumstances. Put simply, the overwhelming textual and historical evidence does not support Texas's understanding of the State War Clause.
As James Madison put it in his Report of 1800, "Invasion is an operation of war." Judge Ezra extensively canvasses the ratification debates and other Founding-era evidence. He also highlights the radical implications of Texas's position, which woul effectively allow states to usurp the federal government's war powers "whenever they disagreed with federal immigration policy." If it is correct, Texas and other states could "engage in war" against neighboring countries anytime there is substantial illegal migration, which i has been the case at almost all times, ever since the US government first imposed significant immigration restrictions applying to migrants crossing the southern border. Thus, Texas would be free to, for example, use its state National Guard to attack Mexico in order to forestall illegal migration and drug smuggling from there.
Judge Ezra's ruling is also the first to highlight the dire implications of the equation of immigration and invasion for the writ of habeas corpus:
Article 1, Section 9 mentions "invasion" to note that the "Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it." Id. art. 1, § 9, cl. 2. The suspension of habeas corpus is a stunning exercise of power. The Writ of Habeas Corpus has been suspended only four times in this country's history: the Civil War,….. KKK insurrections during Reconstruction, a guerilla war in the Philippines, and in Hawaii during World War II…. These examples show that the Writ of Habeas Corpus has only ever been suspended in the face of imminent and overwhelming violent direct threats to the stability of the state or federal government….
Unauthorized immigration is not akin to armed and organized insurrection against the government. Even as Texas points to cartel violence, it cannot maintain in good faith that the cartels will imminently overthrow the state government. Nor can the mere presence of ongoing organized crime, which has long existed in the United States, suffice to justify the suspension of habeas corpus. Despite the serious threat to public safety that cartels may pose, it is difficult to accept that the threat is so severe as to justify the wholesale suspension of Due Process rights in Texas.
Indeed, British suspension of the writ of habeas corpus was a leading concern among American Revolutionaries and carefully limited by the Framers in the Constitution…. For that reason, the Framers drafted the Constitution such that the writ could be suspended only in times of great emergency….
It is not plausible that the Framers, so cognizant of past abuses of the writ and so careful to protect against future abuses, would have granted states the unquestioned authority to suspend the writ based on the presence of undocumented immigrants.
I have previously highlighted this issue myself: If immigration or drug smuggling by cartels qualify as "invasion," the writ of habeas corpus could be suspended at virtually any time, since such activity is virtually always ongoing (at least since the establishment of severe migration restrictions and the War on Drugs).
Judge Ezra also argues that, if illegal migration did qualify as "invasion" states' efforts to "engage in war" in response would still be subject to federal restrictions, under Congress's own war powers, once federal forces are able to reach the scene of the attack. I am less certain of the correctness of this claim than I am about his the arguments. If a state is indeed "actually invaded," it seems to me it would have at least some substantial authority to "engage in war" that the federal government cannot override, even if federal troops are also helping to repel the invasion.
There is more to Judge Ezra's analysis of the invasion issue. Anyone interested in this important constitutional question should read the entire section of his careful opinion devoted to this question (pp. 65-98). It's a true tour de force. For those who care, Judge Ezra is a Republican Reagan appointee.
Texas Gov. Greg Abbott has indicated that he plans to appeal the decision. And the invasion question may also soon be considered by the en banc Fifth Circuit. We probably haven't heard the last of this issue. But hopefully appellate courts will reach the same conclusion as Judge Ezra.
Today's ruling also includes analysis of other issues in the SB 4 case, especially arguments about whether the law is preempted by federal immigration statutes (Judge Ezra concludes it is).
I have previously written about why illegal migration doesn't qualify as "invasion" here, here, here, and here.
UPDATE: In the initial version of this post, I accidentally neglected to include a link to Judge Ezra's opinion. This issue has now been fixed.
Earlier today, in the case of Anderson v. Trump, Illinois circuit court Judge Tracie Porter ruled that Donald Trump is disqualified from the presidency under Section 3 of the Fourteenth Amendment, and therefore must be removed from the Illinois Republican primary ballot. Section 3 states that "No person" can hold any state or federal office if they had previously been "a member of Congress, or… an officer of the United States" or a state official, and then "engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof."
Judge Porter's ruling largely follows the reasoning of the Colorado Supreme Court decision on the same issue, which is currently being reviewed by the federal Supreme Court. She has stayed her ruling in anticipation of an appeal, and it will likely remain on hold until the federal Supreme Court issues its own decision.
I think the Colorado Supreme Court got all the major federal constitutional issues right, and therefore also agree with today's ruling. Unfortunately, the federal Supreme Court oral argument strongly suggests the justices are going to reverse the Colorado decision on the grounds that Section 3 is not "self-executing," and therefore cannot be enforced by state governments unless and until Congress enacts additional legislation. If that happens, the Illinois decision won't have any effect. The same goes for a December ruling against Trump by the Maine Secretary of State.
For those interested, I have filed an amicus brief in the federal Supreme Court case, which explains why a prior criminal conviction on charges of insurrection (or any other criminal charges) is not necessary for for Trump to be disqualified.
I have also written about other issues related to the Section 3 litigation writings, most extensively here and here. In a series of previous VC, I explained why the January 6, 2021 attack on the Capitol qualifies as an "insurrection" under Section 3 (see here, here, and here).
Since April 2022, the US has admitted some 200,000 or more Ukrainian migrants under the Uniting for Ukraine (U4U) program, which enables US citizens and legal residents to sponsor Ukrainians fleeing Russia's brutal invasion to live and work in the United States for up to two years (I am myself a sponsor for two Ukrainian families). Although the program has many virtues and has been highly successful, the two-year time limit has been a major downside, from the beginning. Many of the Ukrainians will need a permanent refuge. And giving it to them will also enable them to contribute more to our economy and society.
Yesterday, the Biden Administration began a program under which U4U participants can apply for "re-parole." Those whose applications are accepted would be allowed to live and work legally in the US for an additional two years.
This is a step in the right direction. The war in Ukraine shows little sign of ending anytime soon. And many of the refugees may be unwilling or unable to return even after the fighting stops (e.g.—because their former homes have been destroyed by the Russian military). Past refugee crises show that it is often impossible and undesirable to force everyone to return to their original homes, even after the fighting is over.
But the re-parole process does have some downsides. One is that the relevant forms and application process seem unduly complicated, and some aspects of the system are unclear. For example, I cannot figure out whether the two-year extension is tacked on to the end of the original two years, or whether it begins as soon as USCIS accepts an application (in the latter case participants may end up with less than four years total) [see update for clarification on this issue]. The filing fees are also hard to determine, though they seem to be $575 per person, if I understand the USCIS website correctly. That goes well beyond any plausible administrative expenses and is a considerable burden for the many parolees who lost everything in the Russian invasion and may be employed at working-class jobs today. At the very least, the fees should be lowered.
In addition, the extension, like the original U4U program, is a matter of executive discretion. What Caesar giveth, he or his successor could taketh away—a very real danger, given the prospect of Donald Trump returning to the White House. It is not entirely clear whether the president could unilaterally strip U4U parolees of their status before their term ends. At the very least, the president could simply let the term expire and refuse to renew it.
Despite such limitations, the re-parole system is a useful step. Otherwise, many U4U participants will see their residency and work rights expire in 2024 or 2025. But, like the earlier grant of a right to apply for TPS status, this is not a substitute for giving Ukrainians permanent residency rights. Congress must pass an adjustment act to do that; I outlined the case for doing so here. There is in fact a bipartisan Ukrainian Adjustment Act proposed by several members of Congress. But it doesn't seem likely to pass this year. Similar adjustment acts should be adopted to cover Afghans, Venezuelans, and others in similar straits, who fled war and oppression, entered the US through the use of presidential parole power, and now face arbitrary time limits on their residency and work rights.
If you are a U4U participant or a sponsor who needs help with the re-parole process, please let me know and I will see if I can get answers to your questions.
I have made inquiries with government officials and other experts to try to clear up some of the uncertainties noted above. If I learn anything useful, I will update this post.
UPDATE: A USCIS official has now confirmed to me that Ukrainians who successfully apply for re-parole will get an additional two years on top of their full initial term. Thus, if someone's parole is expiring on April 25, 2024, they file for re-parole and USCIS grants it, the re-parole period will be a full two years beginning on April 25, 2024 and ending on April 25, 2026. The official also indicated that agency will be prioritizing the re-parole of persons whose initial parole period expires earliest, to minimize the risk of anyone losing employment rights in the meantime.
Yesterday, the Supreme Court heard oral arguments in NetChoice v. Paxton and Moody v. NetChoice, cases challenging Florida and Texas state laws barring major social media firms from using most types of content moderation, thereby requiring them to host content they disapprove of. The oral arguments suggest a clear majority of the justices believe these laws violate the First Amendment rights of social media providers. I agree with the assessment of my Cato Institute colleague Thomas Berry, who said "It appears that a majority of the Court is likely to find that the laws violate the First Amendment, at least when they force traditional social media sites like Facebook and X to change their moderation practices and disseminate speech they want to exclude."
Justice Elena Kagan summarized the issues best, when she noted, in the Florida argument, that, if social media firms have "content-based restrictions" on what kinds of speech they wish to host (e.g.—by keeping out what they consider "misinformation… [or] "hate speech or bullying") "why isn't that….a classic First Amendment violation for the state to come in and say, we're not allowing… you to enforce those sorts of restrictions even though… it's like an editorial judgment, you're excluding particular kinds of speech?"
Chief Justice John Roberts similarly emphasized that "[t]he First Amendment restricts what the government can do, and what the government is doing here is saying, you must do this, you must carry these people; you've got to explain if you don't,…[t]hat's not the First Amendment." Liberal Justice Sonia Sotomayor that the two states' laws are "so broad that they stifle speech just on their face."
If the New York Times or Fox News refuse to publish articles I submit to them because they disapprove of my views or even just because they think my writings will offend their audience, they surely have a First Amendment right to do so. If I don't like Fox's editorial policies, I can submit my content somewhere else. The same reasoning applies to Twitter or Facebook.
The states argue big social media companies have a special status because they reach so many people. But the same is true of major traditional media firms. If the New York Times rejects an op ed I submit, and I end up publishing it in The Hill or the Boston Globe (such things have actually happened to me!), I am likely to reach a much smaller audience than if the piece was accepted by the Times.
As with NYT or Fox News, social media firms seek to create a curated forum that caters to the interests of their audience, and avoids unnecessarily annoying or offending them. Few users actually want a completely unmoderated social media environment, or one that accepts all content that isn't illegal. Sites with right-wing owners, such as Elon Musk's Twitter/X or Donald Trump's Truth Social nonetheless have content-based restrictions in their terms of service.
Samuel Alito and Clarence Thomas—the two justices most sympathetic to the states—repeatedly characterized social media content moderation as "censorship." Justice Brett Kavanaugh effectively responded to this trope:
When the government censors, when the government excludes speech from the public square, that is obviously a violation of the First Amendment. When a private individual or private entity makes decisions about what to include and what to exclude, that's protected generally editorial discretion, even though you could view the private entity's decision to exclude something as "private censorship."
I think that's exactly right. If Fox News or the New York Times reject my content because they don't like my views, that is not censorship, but the exercise of their own First Amendment rights. The same goes if Elon Musk bars me from posting on his site. And that's true even if Fox, NYT, or Musk object to my content for dubious reasons, or even downright stupid ones. Ditto if they treat right-wing speech more favorably than the left-wing kind, or vice versa.
I think it's clear there are at least five or six justices who accept the distinctions made by Roberts and Kavanaugh, and therefore are inclined to rule against Florida and Texas on that basis.
In the Florida case, several justices suggested they might not be able to uphold the lower-court ruling against the law, because that state's legislation is so broad that it may cover websites that aren't expressive in nature at all, such as Uber or Etsy. The social media firm plaintiffs brought a facial challenge to the law, which may require them to prove that the law is unconstitutional in all or nearly of its applications. If the Court vacates the lower court decision on this basis, the case could be remanded, and the plaintiffs might have to amend their complaint to turn it into an "as applied" challenge focused on social media firms that exercise editorial discretion. Justice Sotomayor suggested they might remand the case, but also leave the preliminary injunction against the Florida law in place, in the meantime.
Fortunately, these kinds of procedural issues are much less significant in the Texas case, where the law in question is more clearly focused on big social media firms. In oral argument, Texas Solicitor General Aaron Nielson conceded his state's law does not cover firms like Uber and Etsy.
Thus, the Supreme Court could potentially vacate and remand the Florida decision, but rule against Texas. The precedent set by the latter ruling would govern any future litigation in the Florida case, and challenges to similar laws that might be enacted by other states.
The justices also discussed the states' argument that it can bar content moderation because social media firms are "common carriers." I think most of the Court did not find that theory persuasive. rightly. I criticized the badly flawed common carrier theory in some detail here.
Finally, there was much discussion of the issue of whether the tech firm plaintiffs' arguments that they are exercising editorial discretion somehow undermine their exemption from liability for posting user content under Section 230 of the Communications Decency Act. To my mind, this issue isn't really before the Court. And in any case, there is no real contradiction between holding that the tech firms are engaging in First Amendment-protected speech when they moderate content, and also holding that such speech is exempt from certain types of liability under Section 230. But I am no Section 230 expert, and I will leave this issue to commentators with greater knowledge of the relevant issues.
In sum, I am guardedly optimistic that the free speech will prevail in these cases, though procedural issues might lead to a remand in the Florida litigation.
For those keeping score on matters of ideological and jurisprudential consistency, I refer you to the relevant part of my September 2023 post about these cases:
I consistently opposed the Texas and Florida laws both before and after Elon Musk acquired Twitter (now called X). I didn't much like the content moderation policies of the pre-Musk management, and I like Musk's policies even less. But they nonetheless both have a First Amendment right to decide which speech they wish to host, and which they don't….
I am also one of the relatively few people who simultaneously support the Fifth Circuit's recent decision to bar the White House and other federal officials from coercing social media firms to take down content they deem "misinformation" and oppose that same courts' decision (with a different panel of judges) upholding the Texas social media law. The First Amendment bars government from both forcing social media firms to take down content the state disapproves of and forcing them to put up content the firms themselves object to.
It is often said that "you can't kill an idea." Those who quote the saying usually do so to suggest you cannot defeat an ideology through the use of force. Thus, if the ideology has broad enough support, you have to accommodate it—at least to some significant extent.
This truism has recently been invoked in regards to Israel's war against Hamas. For example, top European Union diplomat Joseph Borrell warns that "Hamas is an idea and you don't kill an idea." John Sawers, former head of Britain's MI6 intelligence agency, similarly claims "you can kill individuals, you can't kill an idea." I have occasionally seen seen this trope invoked with respect to Russia. Even if Putin suffers a defeat in Ukraine, it is said, we can't kill the idea of Russian imperialist nationalism.
Such claims are false, or at least greatly overblown. Coercion can and often does kill ideas! But before going further, I should emphasize I do not mean to suggest that all ideological conflicts can and should be settled by force. Within liberal democracies, the best response to evil ideologies is usually a combination of constitutional constraints on government power, and suasion.
Even when large-scale force is both effective and necessary (as is sadly often true in dealing with terrorists and authoritarian regimes), it may work better if combined with other tools—sticks complemented by carrots. Finally, nothing in my argument suggests that "anything goes," even in conflicts with the most abhorrent of ideologies. Minimizing harm to innocent civilians is a moral imperative, even in cases where it may not be strategically necessary.
Taken literally, the claim that you cannot kill an idea is undeniably true. Ideas have no physical existence, and therefore cannot be destroyed by physical force. But force can and often does play a decisive role in ensuring that an idea doesn't get implemented. And that has important implications for how we should handle various conflicts, including those facing Ukraine and Israel. Overwhelming force can be a crucial tool.
Most obviously, implementation of an ideology can often be forestalled by killing its adherents. Dead fascists, communists, or radical Islamists cannot do much to implement their ideas. Perhaps their deaths will inspire others to take their places. But that is far from a given—especially, as we shall see, if the cause they espouse suffers a shattering defeat. Moreover, new recruits may lack the experience and skills of their predecessors. If, for example, Israel wipes out the best Hamas fighters or Ukraine decimates the most effective frontline Russian units, their replacements are likely to be less potent. And fear of being killed or wounded like their predecessors may deter many potential recruits from joining up at all.
In addition to personnel, effective implementation of an ideology usually requires institutions. The use of force can destroy those institutions. When the Nazi state was destroyed by the Allies, that made it extremely difficult for surviving Nazis to keep on implementing their ideas. The same goes for the destruction of the nascent Confederate state by the Union, the destruction of the ISIS regime by a US-led coalition, and many other cases. Ideologies whose implementation itself requires large-scale coercion—including fascism, communism, and Hamas' radical Islamism—are particularly in need of institutional support. Thus they are particularly likely to be stymied by the destruction of their institutions.
Sometimes, institutions can be rebuilt. But doing so is a difficult task. And that rebuilding can itself be blocked by the use of force, or the threat of it.
So far, I have outlined ways in which the use of force can kill ideas by blocking their implementation even without changing anyone's mind. The dead cannot carry on the fight for their cause, even if they remained true believers to the end. And even living true believers often have little ability to do so if they lack the necessary institutions.
But history shows catastrophic defeat can greatly reduce the appeal of an ideology, as well. Conversely, victory can boost it. I outlined some of the reasons why in an earlier post on the Russia-Ukraine war:
Historically, victory in war has often boosted support for the ideology of the winners. The triumph of the American Revolution increased support for Enlightenment liberalism on both sides of the Atlantic, in the process advancing causes such as democratization and the abolition of slavery. The Bolshevik Revolution and subsequent Communist victories in the Russian Civil War and World War II greatly increased worldwide support for Marxism. Similarly, Mussolini and Hitler's early successes won new adherents for fascism.
By contrast, the crushing defeat of the Axis in World War II led to a collapse of support for fascist ideology, including even in Germany and Italy. The Soviet Union's defeat in the Cold War (admittedly only partly military) and subsequent collapse greatly weakened the appeal of communism….
Throughout human history, ideologies have risen and fallen in part based on success and failure in military and geopolitical conflict.
Much of this reflects irrational factors in public opinion formation. Victory in war doesn't actually tell us much about the merits of the winner's ideology. Might does not make right…
But in a world where public opinion is heavily influenced by ignorance and bias, people routinely use crude information shortcuts to make political judgments. One such shortcut is the presumption that it's good to be on winning side. If adherents of an ideology prevail in a high-profile war, there must be something to their ideas! Such biases may be reinforced by the fallacious, but widespread assumptions that it's necessarily good to be "on the right side of history" and that the "arc of the moral universe bends towards justice." If so, one way of telling which side has a just cause is by looking to see who wins!
Another notable example from American history is the defeat of the Confederacy. The ideas of slavery and secession were crushed by coercion more than persuasion. Before and during the war, Confederates openly and proudly avowed their commitment to these ideals. Crushing defeat led most to accept that secession was impossible, and many to pretend they had not actually been fighting for slavery at all, but rather for "states rights."
Defeat is particularly likely to drain support from ideologies that rely heavily on projecting an image of strength and power. That's true of many forms of nationalism, including that of Vladimir Putin's Russia. Projecting strength is a major theme of Putin's propaganda, even including such things as depicting Putin himself as a virile macho hunter and athlete. If a regime that boasts of its strength suffers a crushing defeat and is thereby revealed to be weak, that is likely to reduce support for its ideology. Just ask the Nazis and Italian and Japanese fascists!
Furthermore, crushing defeat undermines hope that the cause will ever ultimately triumph. In principle, adherents can retain their commitment to their cause, even if they believe it has little or no chance of success. But fighting on without hope is painful and depressing. So, many one-time believers—especially less committed adherents—will instead turn their backs on the ideology and even try to persuade themselves and others they never really supported it in the first place. Consider the way many Germans, after World War II, claimed they never supported Hitler (even though all too many had in fact backed him).
Such dynamics may not affect the most fanatical adherents of an ideology. But hard-core ideologues can't win without the aid of a much larger group of less committed adherents. No ideological movement has ever prevailed without the backing of large numbers of the latter.
In sum, the use of force—especially in the form of inflicting crushing defeats—can and often does kill ideas. As we consider how to counter enemies of Western liberal democracy, we would do well to keep in mind the persuasive power of victory.
That does not mean we should rely on force alone. To the contrary, it often helps to couple force with positive ideological appeals, promising a better life to those who reject the ideology of our adversaries. For that reason, among others, I have advocated opening Western doors to both Russian and Gaza Palestinian refugees fleeing their respective horrific regimes and the wars they started.
We should also incentivize Russian troops to surrender, reach out to Russian opposition leaders like Vladimir Kara-Murza and Ilya Yashin, and emphasize that a future, more liberal Russia will get good treatment, like that accorded to Germany, Italy, and Japan after World War II. For their part, Israeli leaders would do well to consider how to more effectively appeal to and reward Palestinians willing to reject Hamas's ideology.
Ideally, we should use the big stick of force to crush and demoralize adherents of the enemy's ideology, while simultaneously offering carrots to those who repudiate it, or sometimes (as in the case of Russian military deserters) even just simply refuse to support the enemy regime. In any given case, finding the optimal balance between the two can be difficult. I certainly don't claim this post is anything like a definitive guide to how to do it. But I hope it may achieve the much more modest goal of explaining how and why the use of force often plays a key role in killing ideas.
Today is the second anniversary of the start of Vladimir Putin's brutal effort to conquer Ukraine. While Russian aggression against Ukraine dates back to the seizure of Crimea and parts of the Donbass in 2014, the February 2022 invasion vastly escalated the conflict, led to large-scale death and destruction, and—even worse—extensive atrocities committed by Russian forces.
This is an update of last year's February 24 post, compiling my writings about the conflict up to that time. There have been many more over subsequent year. I ended last year's post with the hope that Ukraine might win a decisive victory soon, but also stating "I fear I may be compiling another list like it a year from now." Sadly, that fear has come to pass.
In this post, I compile links to my writings about the conflict over the last two years. Many focus on the enormous refugee crisis it has triggered, as that is the aspect most closely related to my areas of expertise. But I have also written on a variety other issues related to the conflict.
Since the early days of the conflict, I have advocated that the US and other Western nations should open their doors to both Ukrainian refugees and Russians fleeing Vladimir Putin's increasingly repressive regime. Over time, I have become more and more convinced that the West should give Ukraine as much weaponry and supplies as possible, in order to push for the largest possible Ukrainian victory. The Ukrainians have done well militarily; their recent problems are largely a result of ammunition and supply shortages caused by slowdowns in US and other western aid. Russia's forces, for their part, have suffered heavy losses, are only modestly competent, and have poor morale and discipline. They can be beaten, if only the West is willing to make a fairly modest investment, much of which can be funded by confiscating Russian government assets in Western nations.
There are also large moral and strategic benefits to Ukrainian victory. The moral aspect is obvious—saving millions of people from oppression, atrocities, and mass murder at the hands of a brutal authoritarian regime. In addition, Ukrainian victory would give a boost to liberal democracy in its ideological struggle against authoritarian nationalism. Strategically, Putin's regime is one of the main enemies of the United States and the West. Any Russian forces damaged or destroyed in Ukraine are ones we don't have to face elsewhere. And a defeat for Russia is also the best hope for a more liberal, or at least hostile, government in that country.
Those who claim helping Ukraine is a diversion from countering China in the Pacific would do well to remember that our Asian allies—including Taiwan—believe helping Ukraine is in their strategic interest. They know that weakening Russia also weakens China (for whom Russia is a key ally), and that showing resolve in Ukraine helps deter China, as well.
I discuss many of these points—and others—in greater detail in various pieces linked below.
In the first part of this post, I compile links to writings on refugee and immigration issues. In the latter part, I compile links to other pieces. Unless otherwise noted, all of these pieces were published right here at the Volokh Conspiracy blog, hosted by Reason.
I list them in chronological order. If you just want to look at more recent pieces, simply scroll down!
"Learning From People Who Vote with their Feet," Oct. 5, 2022. This piece explains what we can learn about the quality of Russia's government from the fact that large numbers of people are voting with their feet against it.
"We Sponsored Refugees Under a New Biden Program. The Results Were Astonishing," Washington Post, Jan. 3, 2023 (non-paywall version here). This was probably my second-most influential piece on issues related to the war. It apparently led over 100 people to sign up as refugee sponsors in the Uniting for Ukraine program, according to data compiled by the Welcome.US sponsor matching site. I have since sponsored several additional Ukrainian migrants myself, and have helped other people become sponsors.
I have also done a variety of podcasts and broadcast media interviews on migration and refugee issues arising from the war. For examples, see here,here, here, and here.
II. Writings on Other Issues Related to the War
"Law, Justice, and the Russia-Ukraine Conflict," Feb. 23, 2022 (post written just as the Russian attack began; I think it's still a helpful summary of the moral and legal issues at stake in the war).
"Two Illiberal and Unjust Zelensky Policies the West Should Force Him to End," April 1, 2022. This drew more negative reactions than anything else I have written about the war. Still, I stand by it. Zelensky's government is vastly better than Putin's and deserves Western support in the war. But that doesn't justify overlooking its wrongs.
"Fund Ukraine's War Effort by Confiscating Russian Government Assets," Nov. 17, 2023. The importance of this issue is underestimated. The $300 billion in Russian government assets currently frozen in the West could, by itself, fund Ukraine's war effort for a long time to come.
"Alexei Navalny, RIP," Feb. 16, 2024. Russia's most prominent opposition leader—recently murdered by Putin—understood the evil of Putin's war on Ukraine.
I hope the US and its allies bolster support to Ukraine, and the war reaches a successful resolution soon. But, once again, I fear I may end up posting another list like this in 2025.
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What a real invasion looks like. Russian armored vehicle in Ukraine. March 2022.Ilya Sominhttps://reason.com/people/ilya-somin/isomin@gmu.eduhttps://reason.com/?post_type=volokh-post&p=82660912024-02-25T16:45:08Z2024-02-21T04:59:59Z
In recent months, many politicians and media outlets have focused on the "migrant crisis" in various cities, supposedly caused by the arrival of large numbers of asylum seekers. Many of these migrants cannot support themselves, and end up taking up shelter space or living on the streets. In a recent Atlantic article (unfortunately, paywalled), Jerusalem Demsas explains why the supposed crisis is in reality a product of flawed government policies, rather than migration, as such:
When the mayor of New York, of all places, warned that a recent influx of asylum seekers would destroy his city, something didn't add up.
"I said it last year when we had 15,000, and I'm telling you now at 110,000. The city we knew, we're about to lose," Eric Adams urged in September. By the end of the year, more than 150,000 migrants had arrived. Still, the mayor's apocalyptic prediction didn't square with New York's past experience. How could a city with more than 8 million residents, more than 3 million of whom are foreign-born, find itself overwhelmed by a much smaller number of newcomers?
In another legendary haven for immigrants, similar dynamics were playing out. Chicago has more than 500,000 foreign-born residents, about 20 percent of its population, but it has been straining to handle the arrival of just 35,000 asylum seekers in the past year and a half. Some people have even ended up on the floors of police stations or in public parks. Mayor Brandon Johnson joined Adams and a handful of other big-city mayors in signing a letter seeking help with the "large numbers of additional asylum seekers being brought to our cities."
Sometimes the best way to understand why something is going wrong is to look at what's going right. The asylum seekers from the border aren't the only outsiders in town. Russia's 2022 invasion of Ukraine brought a separate influx of displaced people into U.S. cities that quietly assimilated most of them. "We have at least 30,000 Ukrainian refugees in the city of Chicago, and no one has even noticed," Johnson told me in a recent interview.
According to New York officials, of about 30,000 Ukrainians who resettled there, very few ended up in shelters. By contrast, the city has scrambled to open nearly 200 emergency shelters to house asylees from the Southwest border.
What ensured the quiet assimilation of displaced Ukrainians? Why has the arrival of asylum seekers from Latin America been so different? And why have some cities managed to weather the so-called crisis without any outcry or political backlash? In interviews with mayors, other municipal officials, nonprofit leaders, and immigration lawyers in several states, I pieced together an answer stemming from two major differences in federal policy. First, the Biden administration admitted the Ukrainians under terms that allowed them to work right away. Second, the feds had a plan for where to place these newcomers. It included coordination with local governments, individual sponsors, and civil-society groups. The Biden administration did not leave Ukrainian newcomers vulnerable to the whims of Texas Governor Greg Abbott, who since April 2022 has transported 37,800 migrants to New York City, 31,400 to Chicago, and thousands more to other blue cities—in a successful bid to push the immigration debate rightward and advance the idea that immigrants are a burden on native-born people.
Demsas is largely right here. Ukrainians admitted under the Uniting for Ukraine (U4U) program have not caused any controversy in cities largely because they are allowed to immediately start working, and thereby can support themselves and contribute to our economy. By contrast, asylum seekers aren't eligible to apply for work permits for six months, and even then it often takes the federal immigration bureaucracy a long time to actually issue them.
What is true for Ukrainians is also true of Cubans, Nicaraguans, Venezuelans, and Haitians admitted under the "CNVH" program—an extension of the U4U model to a combine total 30,000 migrants per month fleeing oppression and violence in those four countries. Several hundred thousand people have entered the US under the CNVH program. But, like the Ukrainians, they have immediate work authorization, and therefore turn out to be an asset to cities, not a burden.
As Demsas explains, the federal government should abolish the six-month rule and let asylum-seekers work legally from day one. The Biden Administration has taken this step for many Venezuelans already in the US. But it needs to expand work authorization to other asylum seekers.
I do think Demsas gets one point wrong here. For the most part, it is not true that "the feds had a plan for where to place" U4U participants. The program requires each migrant to have a US sponsor. But, beyond that, the federal government makes little or no effort to control where and how they live.
I myself am a sponsor in the U4U program, and have advised other sponsors and migrants. Generally speaking, the migrants decide for themselves where they are going to settle in the US. Sponsors advise, but do not dictate. I now have eight Ukrainian sponsorees. To my knowledge, never once has a federal official attempted to plan where they live and work, or even offered advice on that subject.
Instead of planning and controlling, U4U mostly lets the market and civil society work. That, I think, is the real key to its success. While I don't myself have CNVH sponsorees, I know people who do; that program seems much the same.
Demsas also notes that, even when it comes to asylum seekers, the dfficulties encountered in New York and Chicago have largely been avoided in cities like Houston and Miami, even though the latter also have experienced recent influxes. What's the difference between these cases? I don't know for sure. But a major factor is likely that the cities with serious problems also tend to have highly restrictive zoning rules, which make it difficult or impossible to build housing in response to demand. I have previously noted this issue in the case of New York.
In New York, housing issues have been exacerbated by the city's ill-advised free shelter guarantee, which incentivizes both migrants and poor natives to seek out free housing at public expense. New York would be well-advised to end the guarantee, while simultaneously ending exclusionary zoning rules that block new housing construction.
It is also true, as Demsas notes, that Texas Gov. Greg Abbott's migrant busing program—which has heavily targeted New York and Chicago—has caused disruption in those cities:
When immigrants make their way to a city in an organic fashion, they usually are drawn to a place where they have family ties, job leads, or other connections and resources available….
That's very different from the haphazard Texas busing program. When Abbott's buses arrive at their destinations, many of them are filled with people who had specific plans to go somewhere else. Cities then re-ticket many of the passengers. The mayor of Denver told me that roughly 40 percent of asylees who are bused into his city have no intention of staying there.
Abbott should stop the busing program, and instead let migrants choose their own destinations and pay their own way. In addition to increasing the migrants' economic productivity (thereby boosting the US economy) and reducing disruption in New York and Chicago, it would also save Texas taxpayers money. The state has spent some $148 million busing migrants to other parts of the country.
In sum, the "migrant crisis" is largely caused by a combination of perverse federal, state, and local policies that bar asylum seekers from working legally, artificially restrict housing construction, and bus migrants to places other than where they actually want to go. Migrants who enter by programs that avoid these obstacles don't cause any crises. Indeed, they are actually assets to the economy. If governments want to end the "crisis," for the most part they need only get out of the way.
Today the Supreme Court refused to review Coalition for TJ v. Fairfax County School Board, a case in which the Thomas Jefferson High School for Science and Technology ("TJ")—a selective high public school in Fairfax County, Virginia —used facially neutral means to to reduce the percentage of Asian students it admitted. In 2020, TJ adopted a new admissions policy that, while neutral on its face, was actually intended to reduce the percentage of Asian-American applicants accepted at the school, in order to increase the percentage of other groups, and get a student body closer to the population demographics of Fairfax County (which is about 19% Asian).
I criticized the Fourth Circuit appellate court opinion in this case here, analyzed the district ruling in favor of the plaintiffs here.
Before proceeding, I should note that my wife, Alison Somin, is one of the Pacific Legal Foundation attorneys representing the plaintiffs in this case (a group of parents of Asian-American applicants to TJ), on a pro bono basis. If you want to discount what I say because of this connection, you are free to do so. But my interest in both anti-Asian discrimination in education and the more general issue of the use of "facially neutral" policies for discriminatory purposes long predates Alison's work on the TJ case. Anyone who cares to check will, I think, find that my take on the case is completely consistent with my previously expressed views on these two interconnected topics.
Justice Samuel Alito (joined by Justice Thomas) wrote a forceful dissent to denial of certiorari, warning that the lower court ruling sets a dangerous precedent (I raised similar concerns myself, as did Judge Allison Jones Rushing in her dissent to the Fourth Circuit ruling):
A group representing applicants for admission to a highly competitive public magnet school brought suit, claiming that changes in the school's admissions requirements violated the Equal Protection Clause. They alleged that the changes were made for the purpose of discriminating on the basis of race, to the detriment of Asian-American applicants. The District Court found that direct and circumstantial evidence supported that claim and issued aninjunction against implementation of the changes. On appeal, however, a divided Fourth Circuit panel reversed and held that the plaintiff 's claim failed simply because the challenged changes did not reduce the percentage of Asian-American admittees below the percentage of Asian-American students in the schools in the jurisdictions served by the magnet school. What the Fourth Circuit majority held, in essence, is that intentional racial discrimination is constitutional so long as it is not too severe. This reasoning is indefensible, and it cries out for correction….
The panel majority held that the Coalition could not prevail because, as the majority saw things, the new policy "visit[ed] no racially disparate impact on Asian American students" since, even after use of the new policy began, Asian Americans still received 54.36 percent of the admissions offers [compared to the previous 73%]….This percentage exceeded the percentage of Asian- American students in the applicant pool, and therefore, according to the panel majority's reasoning, Asian-American students had no cause to complain. As the panel majority put it, "an application of elementary arithmetic shows that Asian American students, as a class, experience no material disadvantage under the policy's functioning" and in fact perform "better in securing admission to TJ than students from any other racial or ethnic group…."
As Judge Rushing explained in dissent, under the Fourth Circuit's view, the Constitution permits "facially neutral laws explicitly motivated by racial discrimination, as long as the law's negative effect on the targeted racial group pushes it no lower than other racial groups…." "It would not matter, for example, if a new law cut a racial group's success rate from 90% to 30% and the legislature was open about its discriminatory purpose, as long as no other racial group succeeded at a higher rate…. " This rule defies law and logic.
Consider the following hypothetical case. Suppose that white parents in a school district where 85 percent of the students are white and 15 percent are black complain because 10 of the 12 players (83 percent) on the public high school basketball team are black. Suppose that the principal emails the coach and says: "You have too many black players. You need to replace some of them with white players." And suppose the coach emails back: "Ok. That will hurt the team, but if you insist, I'll do it." The coach then takes five of his black players aside and kicks them off the team for some contrived—but facially neutral—reason. For instance, as cover, he might institute a policy that reserves a set number of spots on the roster for each of the middle schools who feed to the high school. According to the reasoning of the Fourth Circuit majority, this action would not violate equal protection because the percentage of black players left on the team (approximately 42 percent) would exceed the percentage of black students in the school. I cannot imagine this Court's sustaining such discrimination, but in principle there is no difference between that imaginary case and one now before us.
As the district court found, the record in this case is full of statements indicating that race was the primary motivation for for the change in admissions policies, and that the School Board specifically sought to reduce the number of Asian students in order to increase the percentage of blacks and Hispanics, and also to—as the TJ principal put it—ensure the TJ student body better "reflect[s] the racial composition in [the Fairfax County Public Schools].'" Other officials claimed that having too many Asian students was in itself harmful because it would damage TJ's "culture." State legislator Mark Keam fulminated about the "unethical ways" Asian-American parents "push their kids into [TJ]," when those parents are "not even going to stay in America," but instead are "using [TJ] to get into Ivy League schools and then go back to their home country."
The Fourth Circuit could have limited themselves to holding (wrongly, in my view) that the School Board would have adopted the new policy even in spite of illicit racial motivation; this is the relevant legal standard under longstanding Supreme Court precedent. But they went beyon that and made a much worse decision, holding that evidence of racist motivation is simply irrelevant so long as the group discriminated against is still represented at a higher rate than its percentage of the applicant pool. That's a dangerous precedent that can easily be abused in many circumstances, by both right and left-wing policy makers.
As I have previously noted, anti-Asian policies at TJ and many other elite educational institutions are reminiscent of efforts to reduce the number of Jewish students at many elite colleges in the early 20th century. Those policies, too, were often facially neutral, and in many cases the number of Jewish students admitted was still higher than the percentage of Jews in the applicant pool or in the general population. Yet, today, few doubt these policies qualify as anti-Semitic discrimination. The same reasoning should apply to the TJ case and others like it.
While the Court has refused to take the TJ case, the issues it raises are likely to recur. In the wake of the Supreme Court's decision in SFFA v. Harvard severely restricting open use of racial preferences in admissions, many schools are likely to use facially neutral means to achieve the same ends, by deliberately using admissions criteria that correlated with race. The problem of efforts to reduce the number of Asian students at elite institutions is also far from unique to this case. Indeed, it arose in the Harvard case itself.
The Supreme Court can run from these questions. But it can't hide from them for very long. If the justices try to do so, more and more institutions are likely to find "race neutral" ways to circumvent the Court's decision, and to target Asian students.
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The Thomas Jefferson High School for Science and Technology. Fairfax, Virginia.Ilya Sominhttps://reason.com/people/ilya-somin/isomin@gmu.eduhttps://reason.com/?post_type=volokh-post&p=82656332024-03-21T05:12:03Z2024-02-16T21:43:38Z
During his visit to Russia to interview Vladimir Putin, right-wing former Fox News talk show host Tucker Carlson made waves by praising the supposed abundance and low prices at a Moscow supermarket. He said the experience "radicalized" him against US leaders, and that Moscow is "so much nicer than any US city."
By contrast, Americans who want to emigrate to Russia are few and far between. Last year, the Russian government floated a plan to build a village for disaffected expatriate American right-wingers. But they seem to have quietly mothballed the idea, probably for fear it wouldn't attract any significant number of takers.
Why are so many Russians eager to flee to the West? One major factor is that, despite Carlson's claims, Russia is actually a poor nation. As of 2022, per capita GDP was about $15,270, less than one-fifth the US figure of $76,300. And that's despite the fact that Russia has some of the world's largest deposits of oil and precious metals. The average monthly wage in Russia is about 73,800 rubles (an annual salary of about $9700 at current exchange rates). Some 20% of Russian households lack indoor plumbing.
It's also worth noting that Moscow is the richest city in Russia. And even there, Carlson (like many other visiting westerners) probably didn't see much of the parts where ordinary people live, as opposed to sites frequented by foreign tourists. Had he done so (as I have), he would have seen Third World-like poverty. And that poverty is much worse in smaller cities and in rural areas.
One of Carlson's errors was at least somewhat understandable. I once made a similar one, myself. I am a native of what was then the Soviet Union, and a native speaker of Russian. Back in 1995, I visited Russia for the first time since emigrating in 1979. Like Carlson in 2024, I noticed that many prices were lower than in the US. When I pointed this out to a Moscow-based Russian relative of mine, she got angry: "Stop saying the prices here are low," she admonished me. "They are not low compared to our incomes."
She was right. Part of what I (and later Carlson) saw is the strength of the US dollar, which enjoys highly favorable exchange rates because many foreigners want to hold dollar-denominated assets as a "store of value" (by contrast, few non-Russians have a similar demand for rubles). Another relevant factor is that prices for many goods and services are lower in poor nations, in part because labor is much cheaper (having fewer alternative opportunities).
Relative to income, food prices in Russia are actually much higher than in the US, not lower. In 2021, the state-run news agency TASS (which certainly does not want to make the Russian government look bad!) reported that 75% of Russians spend half or more of their income on food. Things have likely gotten worse since then, with the inflation and shortages caused by the war against Ukraine. In the US, by contrast, the average American spends about 11.3% of disposable personable income on food. Even for the poorest quintile of the population, that rises to only 31%.
Even as Carlson was praising Russia's food abundance, the government was urging Russians to start growing their own bananas, to make up for anticipated shortages resulting from Putin's restrictions on imports. Perhaps Carlson can do a special program on how Russia's climate is great for raising bananas. Thanks to Putin, the country is on its way to becoming the world's greatest banana republic!
In addition to widespread poverty, Russia also has horrific repression. You can get up to 15 years in prison just for referring to the "special military operation" in Ukraine as a war. Just today, Russia's most prominent opposition leader, Alexi Navalny, died in prison. Other prominent dissenters, such as Vladimir Kara-Murza and Ilya Yashin are also behind bars, often under terrible conditions. Carlson claims to be a great free speech advocate. If so, he shouldn't be defending Putin.
Carson also fantasizes about how the US government might draft his children to fight in Ukraine, even though there is no real prospect of any draft here. Russia, however, actually does have a draft, in which thousands of young men are forced to fight in an unjust war, primarily the poor and non-Russian minorities.
Growing repression and conscription are additional reasons why so many Russians are voting with their feet against their government. If you want to know what conditions in Russia are truly like, you should listen to them, not Tucker Carlson.
My new article, "The Constitutional Case Against Exclusionary Zoning" (coauthored with Josh Braver of the University of Wisconsin) is now available for free download on SSRN. It is also under submission to law reviews. The problem it addresses is, in my view, the most important constitutional property rights issue of our time, and one of the most significant constitutional issues of any kind, given the enormous harm zoning restrictions inflict. That's an admission against interest, as I have spent much of my career writing about public use and eminent domain.
Here is the abstract:
We argue that exclusionary zoning—the imposition of restrictions on the amount and types of housing that property owners are allowed to build— is unconstitutional because it violates the Takings Clause of the Fifth Amendment. Exclusionary zoning has emerged as a major political and legal issue. A broad cross-ideological array of economists and land-use scholars have concluded that it is responsible for massive housing shortages in many parts of the United States, thereby cutting off millions of people – particularly the poor and minorities—from economic and social opportunities. In the process, it also stymies economic growth and innovation, making the nation as a whole poorer.
Exclusionary zoning is permitted under Euclid v. Ambler Realty, the 1926 Supreme Court decision holding that exclusionary zoning is largely exempt from constitutional challenge under the Due Process Clause of the Fourteenth Amendment, and by extension also the Takings Clause. Despite the wave of academic and public concern about the issue, so far, no modern in-depth scholarly analysis has advocated overturning or severely limiting Euclid. Nor has any scholar argued that exclusionary zoning should be invalidated under the Takings Clause, more generally.
We contend Euclid should be reversed or strictly limited, and that exclusionary zoning restrictions should generally be considered takings requiring compensation. This conclusion follows from both originalism and a variety of leading living constitution theories. Under originalism, the key insight is that property rights protected by the Takings Clause include not only the right to exclude, but also the right to use property. Exclusionary zoning violates this right because it severely limits what owners can build on their land. Exclusionary zoning is also unconstitutional from the standpoint of a variety of progressive living constitution theories of interpretation, including Ronald Dworkin's "moral reading," representation-reinforcement theory, and the emerging "anti-oligarchy" constitutional theory. The article also considers different strategies for overruling or limiting Euclid, and potential synergies between constitutional litigation and political reform of zoning.
The paper is an example of cross-ideological collaboration. Josh Braver is a progressive and a living constitutionalist. I am a libertarian, generally sympathetic to originalism. We started discussing the issue of zoning after taking opposite sides of a debate over judicial review at the University of Wisconsin, sponsored by the Wisconsin chapters of the American Constitution Society and the Federalist Society. Although we differ on many other issues, we found that we agree on this one!
Alexei Navalny, Russia's most prominent opposition leader, died in prison today at the age of only 47. Given that he was previously poisoned (likely at Vladimir Putin's order), it seems likely that his death was ordered by Putin, as well.
In 2021, after being treated for the poisoning in Germany, Navalny bravely returned to Russia, despite knowing he was likely to be arrested and imprisoned on arrival (as indeed happened). The charges against him were obviously trumped up; his real crime was opposing Putin's dictatorship.
Navalny devoted his life to opposing Putin's brutal regime, despite the grave risks of doing so. At times, he took some dubious positions in order to appeal to Russian nationalists, as with his waffling on the issue of Russia's seizure of Crimea, which he called illegal and unjust, but also said should not be reversed. But there can be no doubt Navalny stood for a vastly freer and more democratic Russia than now exists. Even in prison, he denounced Putin's war against Ukraine and called for the withdrawal of Russian forces from Ukraine's internationally recognized borders (which would require withdrawal from Crimea, as well).
Navalny's views are not above criticism. But Westerners who think he didn't go far enough in his opposition to Putin should ask themselves if they would have had the courage to do as much as he did, were they in his place—knowing the price of dissent could well be imprisonment and death.
It is well to remember that Navalny was far from the only political prisoner in Putin's Russia. Opposition leaders such as Vladimir Kara-Murza and Ilya Yashin remain in prison right now. Western nations should press for their release.
We can also open our doors to Russians fleeing Putin's regime, as many nations have done for Ukrainian refugees. As Ilya Yashin (another opposition leader imprisoned for resisting Putin), urges us, we should not forget that " hundreds of thousands of [his] countrymen left their homes behind, refusing to become murderers on the orders of the government," and should "extend a hand" to Russians who oppose the regime.
Yesterday, the Biden administration granted temporary refuge to Palestinian migrants currently in the United States, who might otherwise be subject to deportation. The grant of Deferred Enforced Departure status (known as DED) allows about 6000 Palestinians to remain in the US for an additional 18 months, and the Department of Homeland Security will allow these people to work in the US during that time, as well.
The justification for this measure is obvious. As the White House statement on the subject puts it, because of the ongoing war between Israel and Hamas, "humanitarian conditions in the Palestinian territories, and primarily Gaza, have significantly deteriorated." That surely understates the point: thousands of people have been killed, and much of Gaza leveled. There is less extensive, but still significant, violence on the West Bank. In addition, Gaza Palestinians are subject to Hamas's brutal tyranny, which is awful, even aside from the war.
In my view, the primary blame for this situation falls on Hamas for using Gaza as a base for its horrific terrorist attacks, and then using the civilian population as human shields. But, regardless of the blame, it would be wrong to force Palestinian migrants (or anyone) to return to a deadly war zone—or to live under a system of quasi-medieval oppression.
There is, however, a contradiction in the Biden Administration's position here. The same reasoning that justifies the grant of DED status to Palestinians currently in the US also justifies opening the door to civilians trying to flee Gaza. After all, they too are suffering from the "deterioriation" in "humanitarian conditions." Yet both Western and Arab nations have largely refused entry to Palestinian refugees fleeing the violence.
In a previous post, I explained why opening the door to Gaza refugees is the right thing to do on both moral and strategic grounds: it can save thousands of people from needless suffering and death, while also making it easier for Israel to defeat Hamas. I also addressed various possible counterarguments, such as claims that Gaza Palestinians are collectively responsible for Hamas atrocities, and arguments that they pose a security risk (the risk is actually extremely small).
Since I wrote my piece, related arguments have been advanced by my co-blogger and George Mason University colleague Eugene Kontorovich, in a January 21 Wall Street Journal op ed:
Gaza is unique among modern war zones. Despite being the center of a conflict fought in dense urban areas, it hasn't produced waves of refugees leaving for neutral countries. This has been deliberate, the result of policies by Hamas and Egypt tacitly supported by the U.S….
Fleeing a war zone and seeking asylum in a neutral country is a human right enshrined in the 1951 United Nations Refugee Convention. If civilians hadn't been allowed to flee past conflicts, their death tolls would have been even higher.
Yet three months after Oct. 7, fewer than 1,000 people—either foreign nationals or wounded—have been allowed by Egypt and Hamas to leave Gaza. In Israel this month, Secretary of State Antony Blinken rejected the possibility of Israel helping Gazans who wish to escape the conflict to do so. But he also complained that the war's toll on Gaza civilians was "far too high" and echoed earlier demands that Israel "do more" to reduce the collateral damage caused by Hamas's hiding behind its population….
Why would anyone other than Hamas—especially the U.S.—support locking Gazans in like North Korea does? Since 1948, Arab states and the U.N. have refused to treat Palestinians like ordinary refugees, keeping them in a unique intergenerational limbo to provide a reservoir of resentment against Israel. The U.S. hasn't opposed the flight of refugees in other conflicts. The Biden administration continues to treat Gazans not as people, but as serfs indentured to the land.
Letting Gazans leave not only would reduce human suffering; it would provide a test and incentive for postwar governance. Refugees often return to their home countries when governance stabilizes after a conflict. For this to happen, the new civilian administration would have to make it a place where Gazans want to live, not where they are prevented from leaving.
Eugene and I differ over many issues. But I think he is absolutely right here. For a combination of moral, legal, and practical reasons, it's wrong to trap Palestinian refugees in Gaza, as if they were Hamas's serfs. Eugene is also right to suggest the US use its large-scale aid to Egypt as leverage to pressure the Egyptian government to let Gaza refugees leave (a policy I advocated in my October piece). I am not sure Eugene would take the additional step of urging the US and other Western nations (as well as Egypt) to accept Gaza refugees. But this too is justified for reasons I outlined in my earlier post.
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Map of the Gaza Strip.Ilya Sominhttps://reason.com/people/ilya-somin/isomin@gmu.eduhttps://reason.com/?post_type=volokh-post&p=82653762024-02-15T05:47:38Z2024-02-14T22:00:40Z
A recent Monmouth poll finds that 18% of Americans and 32% of Republicans believe there is a "a covert government effort for Taylor Swift to help Joe Biden win the presidential election." The percentage of believers is higher among the 46% of Americans who have previously heard of the Swift conspiracy theory, and is especially high among Republicans who had previously heard of it (44% of that subgroup said they believed such a covert effort exists). As more Republicans learn of this conspiracy theory, more might come to believe it.
Over the last few weeks, some conservative activists and online "influencers" have promoted the absurd conspiracy theory that Taylor Swift's relationship with Kansas City Chiefs player Travis Kelce is actually a "deep state" government "psyop" designed to help Biden win the election (presumably, Swift -grateful for being set up with Kelce and resulting publicity, will endorse Biden in exchange). Large numbers of Republicans (though still a minority) now apparently believe it! In fairness, some of those who told Monmouth they believed in the existence of the "covert government effort" might have had some other type of conspiracy in mind. But the one involving Kelce has gotten the broadest circulation.
I won't spend much time and effort refuting the Swift-Kelce conspiracy theory. Suffice to say that Swift is a billionaire and the most popular celebrity in the world. She doesn't need the help of Deep State Democrats to either find men to date or generate publicity for her music. And if the White House wanted Swift to endorse Biden, they could probably achieve that goal just by asking her. After all, she did endorse him in 2020, apparently without getting anything in exchange (though I suppose conspiracy theorists can argue that whoever she was dating back then was actually a Deep State plant).
In and of itself, widespread belief in the Taylor Swift conspiracy theory probably doesn't matter much. It almost certainly won't change the outcome of the presidential election. Nor is it likely to impact government policy in any meaningful way.
The problem is that the kind of credulousness on display here is also evident in many voters' beliefs in a wide range of other conspiracy theories. The Washington Post gives some examples in its story on the Monmouth poll:
An August 2022 YouGov poll after the search of Mar-a-Lago showed 38 percent of Republicans believed the FBI planted evidence there. Just 23 percent disagreed with that proposition (another 39 percent were "not sure").
A YouGov poll the next month showed a majority of Republicans said it was at least "probably true" that the FBI planted classified documents.
A Suffolk University poll shortly after Jan. 6, 2021, showed 58 percent of Donald Trump supporters said the Capitol riot was "mostly an Antifa-inspired attack that involved only a few Trump supporters." There remains zero evidence for this.
A recent Washington Post-University of Maryland poll showed 34 percent said it was at least "probably true" that the FBI organized and encouraged the attack on the Capitol. (About half that number believed there was "solid evidence" of this.)
YouGov polling in December showed 42 percent of Republicans believe "many top Democrats" are caught up in child sex-trafficking rings, 35 percent believe mass shootings have been faked to promote gun control, and 28 percent believe the government used covid vaccines to implant microchips in people.
The same poll showed fully 60 percent of Republicans believe there is "a single group of people who secretly control events and rule the world together." (Democratic support for the proposition was about half — 28 percent.)
And, of course, polls generally show around 6 in 10 or more Republicans continue to believe the 2020 election was stolen from Trump, despite the complete lack of evidence more than three years later.
As I've explained before (e.g. here, here, and here), this is part of the more general problem of voter "rational ignorance" and bias. Because there is so little chance that any one vote will influence an electoral outcome, most voters have little incentive to devote more than minimal time to learning about political issues. Their ignorance makes them more susceptible to conspiracy theories and other misinformation.
That problem is further exacerbated by the lack of incentive to objectively evaluate whatever information the voters do learn. In considering political information, many voters act not as objective truth-seekers, but as "political fans" who tend to overvalue any claims that cohere with their preexisting views, and downplay or ignore any that cut against them. Just as sports fans tend to be biased in favor of their favorite team, political fans are biased in favor of their preferred party, ideology, and leaders—and against their rivals.
At this moment in history, I think right-wing political ignorance and bias are greater menaces than that on the other side of the political spectrum. Over the last few years, lies and disinformation spread by Trump and his supporters—particularly the Big Lie—have had more impact than their left-wing counterparts. But, whether or not you agree with me on that, it's important to recognize the enormous scope of the problem—and the fact that it isn't limited to one side of the political spectrum.
Recognizing the problem cannot, by itself, solve it. But it's at least a step in the right direction. I consider a variety of potential ways to mitigate political ignorance and bias in this recent article and in my book Democracy and Political Ignorance.
UPDATE: I have made minor additions to this post.
UPDATE 2: I have fixed what was previously an incorrect link to the Monmouth poll.
One standard rationale for immigration restrictions is the idea that immigrants overburden the welfare state, thereby increasing fiscal burdens on natives. In reality, just the opposite is true. Immigration actually reduces those burdens, on net. A new Congressional Budget Office (CBO) report estimates that immigration will reduce the federal budget deficit by some $1 trillion over the next ten years. Reason's Eric Boehm summarizes the implications:
Higher levels of immigration are boosting America's economy and will reduce the deficit by about $1 trillion over the next decade.
In its semi-annual forecast of the country's fiscal and economic conditions, released this week, the Congressional Budget Office slightly lowered its expectations for this year's federal budget deficit. The CBO now expects the federal government to run a $1.5 trillion deficit, down from the $1.6 trillion deficit previously forecast.
That reduction is due in part to higher-than-expected economic growth, which the CBO attributes to "more people working." The labor force has grown by 5.2 million people in the past year, "mostly because of higher net immigration."
More immigrants will also help reduce future budget deficits—which are expected to average $2 trillion annually over the next 10 years, meaning any help is desperately needed.
The changes in the labor force over the past year will translate into $7 trillion in greater economic output over the next decade, the CBO estimates, "and revenues will be greater by about $1 trillion than they would have been otherwise…."
"The higher growth rate of potential GDP over the next five years stems mainly from rapid growth in the labor force, reflecting a surge in the rate of net immigration," concludes the CBO, which expects higher than normal levels of immigration through at least 2026.
Of course, this isn't exactly rocket science. More workers equals more economic output and more growth, which in turn leads to more tax revenue to help offset some of the federal government's seemingly insatiable appetite for spending. Sometimes economics can be quite confusing, but that formula is about as straightforward as can be.
America's current population is trending older, which strains old-age entitlement programs and means fewer productive workers in the economy. Thankfully, that's not true of the country's immigrants: "A large proportion of recent and projected immigrants are expected to be 25 to 54 years old—adults in their prime working years…"
Biden's presidency has been a mixed bag, at best. His fiscal record is highly problematic. But one of his most important achievements was returning immigration to pre-Trump/pre-pandemic levels. If Trump returns to power, he would likely reverse that.
Obviously, fiscal effects are not the only possible justifications for cutting immigration. Restrictionists can still argue for reducing it on the grounds that immigrants increase crime, damage political institutions, make bad decisions at the ballot box after they become voters, spread harmful cultural values, and so on. If such harms are great enough, they could outweigh even very large beneficial fiscal effects. I address these and other rationales for restrictionism in detail in Chapters 5 and 6 of my book Free to Move: Foot Voting, Migration, and Political Freedom.
But supposedly adverse fiscal effects are still a significant restrictionist talking point, especially among those who consider themselves libertarians or fiscal conservatives. The CBO report adds to the already extensive evidence showing that such concerns are not only misplaced, but counterproductive. Far from increasing the fiscal burden on natives, immigration actually reduces it.
Today's Supreme Court oral argument in Trump v. Anderson overwhelmingly focused on the issue of whether Section 3 of the Fourteenth Amendment is "self-executing," that is whether states can enforce it in the absence of congressional legislation. Most of the other issues at stake in the case got little or no attention. For example, there was almost no discussion of the question of whether the January 6 attack on the Capitol was an "insurrection" and whether Trump "engaged" in it.
Both liberal and conservative justices repeatedly raised questions about whether letting states enforce Section 3 would lead to a lack of uniformity, and whether states could abuse their authority by trying to disqualify people for political reasons. Given the extensive focus on this issue and the relative neglect of others, there is a good chance that the Court will overrule the Colorado decision on that basis. Strikingly, the questioning focused much more on pragmatic concerns about chaos and abuse than on more traditional legal issues about the text, structure, and original meaning of Section 3. The self-execution question may also appeal to the justices because it is an "off ramp" that would allow them to dispose of this hot potato without having to pass judgment on the nature of the January 6 attack on the Capitol and Trump's egregious actions in inciting it and trying to use it as leverage to force Congress to keep him in power after losing the 2020 election.
But it would nonetheless be a mistake to decide the case in that way. Nothing in the text or original meaning of the Fourteenth Amendment require congressional legislation to enforce it. Indeed, multiple ex-Confederates were adjudged disqualified in the aftermath of the Civil War even without any such enforcement legislation, which suggests a broad understanding that disqualification does not depend on congressional action. Section 5 of the Fourteenth Amendment does give Congress the power to enact "appropriate" enforcement legislation. But there is no indication that this power is exclusive. And the Court has repeatedly allowed self-enforcement for other parts of the Fourteenth Amendment, even though Section 5 applies to them, as well.
Practical concerns about non-uniformity and abuse are understandable. But they are overblown. If state officials or state courts reach unsound or contradictory legal conclusions about the meaning of Section 3 (e.g.—by adopting overbroad definitions of what qualifies as an "insurrection"), their determinations could be reviewed in federal court, and the Supreme Court could impose a uniform definition of the terms in question. Indeed, it could do so in this very case! Non-uniform interpretations of provisions of the federal Constitution by state and lower federal courts can occur in many contexts. Settling such issues is one of the reasons why we have a Supreme Court that can be the final arbiter of federal constitutional questions.
In 2016, there was litigation in multiple states over claims brought by Trump supporters to the effect that Sen. Ted Cruz, his chief rival for the GOP presidential nomination, was not a "natural born" citizen (Cruz was born in Canada to US-citizen parents). Courts in different states could have reached divergent conclusions on the issue of whether a child born to US citizens while the latter resided abroad counts as "natural born" (it so happens they did not). Yet no one doubted state courts could decide this issue, subject—of course—to potential review by the federal Supreme Court.
Courts in different states could also potentially reach divergent conclusions about factual issues (e.g.—whether a particular person was involved in the insurrection or not). But that's a problem that can arise in any adjudication of candidate qualifications. Thus, no one doubts that state courts can adjudicate whether a candidate for president meets the requirements that he be 35 years old, and a "natural born" citizen of the United States. But if, for example, there is a factual dispute about the validity or accuracy of the candidate's birth certificate (recall "birtherist" claims that Barack Obama wasn't actually born in the United States), courts in different states could potentially reach divergent factual conclusions on that, as well.
Even on factual issues, serious abuses can be constrained by the power of the Supreme Court to review lower-court factual findings for "clear error." If lower courts or state officials make things up out of whole cloth or go against the clear weight of evidence, that can still be overturned.
While many of the justices seem to have overestimated the downside of allowing enforcement by states, they seemingly ignored the downside of ruling that the power belongs exclusively to Congress. As a practical matter, the latter turns Section 3 into a dead letter—not just for insurrectionist presidents, but for everyone else. It's highly unlikely Congress will enact new enforcement legislation at any time in the near future.
Before Trump's attempt to overturn the 2020 election and the resulting January 6 attack on the Capitol, it may have seemed that gutting Section 3 is no big deal, because there was little chance it would be needed. But we can no longer assume such complacency is justified. If future presidents and other officeholders do not face disqualification for insurrection, they might well conclude that imitating Trump's example is a worthwhile gamble. If you succeed, you get to stay in power despite losing an election! And if you fail, you can still seek office again in the future.
At one point, Justice Kavanaugh suggested that 18 U.S.C. Section 2383, the federal criminal insurrection law, qualifies as an exclusive enforcement statute. For reasons explained in Part I.B of my amicus brief, that simply isn't true. In addition, requiring a criminal conviction for insurrection will make enforcement impossible in situations where getting one is difficult or impossible, or where prosecutors choose to pursue other charges instead.
While the vast bulk of oral argument time was devoted to the self-execution issue, there was also some discussion of the issue of whether the presidency is covered by Section 3. Here, Trump lawyer Jonathan Mitchell made some striking concessions. For example, he conceded there is no good reason why an insurrectionist president should be excluded from coverage. Indeed, as he noted, the case for covering the president is actually stronger than that for covering other offices, given that the president is commander-in-chief of the armed forces, thereby making an insurrectionist president a far greater menace than an insurrectionist member of Congress or lower-level executive official. He also admitted that people at the time feared that a former Confederate such as Jefferson Davis could potentially become president.
Mitchell tried to suggest that the exclusion of the presidency was the result of a "compromise." But such a compromise could only occur if some people had a reason why they wanted to exclude the highest office in the land from Section 3's coverage. If, as Mitchell admitted, no such reason exists, there is no basis for believing that a compromise on this point was made.
Early on, a good chunk of time was also spent on Mitchell's creative argument that Section 3 cannot be enforced until an official has actually taken office, because until then Congress can also lift his disability by a 2/3 majority vote of each House. This is a badly flawed argument, and I don't think it got much traction with the Court. But Mitchell and Trump won't need to rely on this theory if they can win on self-enforcement, as now seems probable.
In sum, the most likely outcome is that the Court will rule in Trump's favor on the grounds that Section 3 is not self-enforcing. It's a bad argument that would set a dangerous precedent by effectively gutting Section 3. But it obviously appeals to the justices, for reasons that see more pragmatic in nature than legal.
Today, the Supreme Court will hold oral arguments in Trump v. Anderson, the case addressing whether Donald Trump is disqualified from the presidency under Section 3 of the Fourteenth Amendment. Co-blogger Josh Blackman and I discussed and debated the case for almost an hour on C-SPAN's Washington Journal program. As regular readers know, Josh believes the Court should rule Trump is not disqualified, while I think they should rule that he is.
The video is available here. If I can figure out a way to embed it in this post, I will do so. But so far, I have not been able to.
My amicus brief in the case, which argues that disqualification under Section 3 does not require a prior criminal conviction, is available here. I have previously written about other issues related to the Section 3 litigation, most extensively here and here.
Josh's amicus brief (written on behalf of Prof. Seth Barrett Tillman) is available here.
In a recent New York Times article (non-paywall version here), my Cato Institute colleague David Bier—a leading expert on immigration policy—explains how President Biden can alleviate pressure on the southern border by expanding opportunities for legal migration:
A bipartisan immigration deal to restrict border crossings took a hit last week when Donald Trump pushed Congress to reject it. It's the latest in a series of episodes over the last decade where one party blows up a deal just as the other gives in. President Biden wants to break this cycle, but to get the politics right, he must get the policy right first.
As long as the border is in chaos, Mr. Trump bets voters will continue to prefer him on this issue. He's almost certainly right. But perhaps it's chaos, not immigration per se, that upsets voters, and Mr. Biden can curb the chaos by letting more immigrants come to the United States legally….
It seems that some Republicans would just as well let the crisis at the border persist. In response, Mr. Biden must not merely blame Republicans for blowing up the deal and then leave the issue alone. The president will always receive the bulk of the blame whenever there is lawlessness and chaos….
The politics here are frustrating policy reform, but better policy could help the politics. Mr. Biden can double down on expanding parole sponsorship programs that allow people lawful and orderly ways to enter the United States.
Letting people in through private sponsorship programs negates the need to expand resources because they'll have the opportunity to line up jobs and housing in advance of getting here. If all else fails, they will have U.S. sponsors to help them out if necessary.
Some Republicans may not like immigrants coming in — legally or otherwise — but American voters don't buy invasion rhetoric to describe people getting vetted to travel here legally. Fearmongering about drug smugglers and terrorists can work when people enter illegally.
Right now, Mr. Biden has only created legal processes for five countries — Ukraine, Cuba, Haiti, Nicaragua and Venezuela — and he has set a cap far below demand. These processes are legal and orderly. Expanding these procedures into other major origin countries and letting more people enter legally will reduce the flows to more manageable levels.
As discussed in Chapter 6 of my book Free to Move, it is indeed the case that real or imagined chaos at the border is a major factor in stoking public hostility towards immigration. This creates a vicious dynamic where restrictionism leads to increased illegal entry (as desperate migrants have no other way to escape violence, poverty, and oppression), which in turn bolsters support for more draconian restrictions, and so on.
The best way to break the cycle is by making legal migration easier. Just as the abolition of alcohol Prohibition massively reduced illegal black market sales of booze, so making legal migration easier cuts down the illegal kind, and reduces pressure at the border. It also bolsters the US economy and helps people fleeing oppression and poverty find freedom and opportunity.
In a November USA Today article, David Bier and I made the case for this approach in more detail and outlined a variety of additional measures Biden could take to make legal migration more accessible.
Relying on discretionary executive action is not ideal. Such policies could potentially be reversed by future unilateral executive action. It would be better if Congress and the executive would make these policies permanent. But executive action along these lines is authorized by existing statutes, and is far better than either doing nothing or giving in to restrictionists (thereby feeding the vicious circle rather than breaking it).
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Migrants wait in line at the U.S.-Mexico borderIlya Sominhttps://reason.com/people/ilya-somin/isomin@gmu.eduhttps://reason.com/?post_type=volokh-post&p=82638072024-02-01T01:45:21Z2024-02-01T01:45:21Z
Today, I filed an amicus brief in Trump v. Anderson, the Supreme Court case addressing the issue of whether Donald Trump is disqualified from the presidency under Section 3 of the Fourteenth Amendment. It explains why a prior criminal conviction on charges of insurrection (or any other criminal charges) is not necessary for for Trump to be disqualified. Text, original meaning, and O.J. Simpson all support that conclusion! I previously wrote about this aspect of the case here. Here's an excerpt from the brief's Summary of Argument:
Section 3 of the Fourteenth Amendment… safeguards our republic against the threat posed by public officials who have previously undermined it by engaging in insurrection or giving "aid and comfort" to the enemies of the United States. U.S. Const. Amend. XIV, § 3. Having shown their true colors once, these insurrectionist present and former officials are not permitted a second chance to undermine the republic….
The key questions before this Court are whether Donald Trump is disqualified under Section 3, and who has the authority to determine that Section 3 is applicable and, therefore, should be applied.
As this Court undertakes the weighty task of reviewing this case, this amicus brief hopes to provide guidance on two specific issues that have been raised repeatedly by Petitioner and Petitioner's amici. The first is whether Mr. Trump had to be convicted of a crime before he could be disqualified under Section 3. The second is whether disqualification in the absence of such a conviction violates Mr. Trump's right to due process under the Fourteenth Amendment…. [T]he answer to both questions is a resounding "No."
Part I explains why a criminal conviction is unnecessary for disqualification under Section 3. A criminal conviction is not required under the text and original meaning of the Fourteenth Amendment. In addition, the distinction between civil and criminal proceedings is a fundamental aspect of our legal system. The same events can give rise to both criminal charges and civil liability or (as in this case) disqualification. One is not a prerequisite to the other. Indeed, as demonstrated by the famous case of O.J. Simpson, a person acquitted of a crime may nonetheless be subject to civil liability for the very same events.
If there is no general requirement of a criminal conviction, there can be no requirement of a specific conviction under 18 U.S.C. § 2383, the federal criminal insurrection statute. Conviction under Section 2383 is not and was not designed to be the exclusive mode of enforcing Section 3 disqualification.
Part II explains why disqualification in the absence of a criminal conviction does not violate Mr. Trump's due process rights. The Due Process Clause of the Fourteenth Amendment only applies to situations where a person is deprived of "life, liberty, or property." U.S. Const. Amend. XIV, § 1. Neither life, nor liberty, nor property is lost by virtue of disqualification from various public offices. Even if the Due Process Clause does apply, the civil process and standard of proof used by the Colorado courts are more than sufficient.
I am grateful to Gerson Smoger, a highly experienced litigator and Supreme Court amicus brief writer, for his assistance in drafting the brief on short notice. Prof. Gerard Magliocca, one of the leading academic experts on Section 3, provided valuable insights on the historical record.
I have written about other issues related to the Section 3 litigation in a variety of writings, most extensively here and here.
I have previously criticized Texas's badly flawed argument that illegal immigration and cross-border drug smuggling qualify as an "invasion," thereby triggering the state's constitutional authority to "engage in war" in response (see also here). Prominent legal scholars Frank Bowman (Univ. of Missouri) and Steve Vladeck (Univ. of Texas) have recently posted articles on the same topic, at Just Security and Lawfare, respectively.
Bowman offers a detailed originalist critique of the invasion argument, surveying a number of relevant founding-era sources:
Throughout the Constitutional Convention and the state ratification debates that followed, delegates and commentators used the term "invasion" over and over. With a handful of exceptions where "invasion" is used metaphorically, as when referring to an "invasion of rights," the word invariably refers to a hostile armed incursion into or against the territory of the states or the nation, an incursion that must be met with a military response….
Section 10 of Article I reserves to the national government exclusively the conduct of foreign policy. It also prohibits states from maintaining regular armies and navies in time of peace, and absolutely bars them from "engag[ing] in War, unless actually invaded, or in such imminent danger as will not admit of delay."
In other words, the constitutional response to "invasion" is "war." Section 10, when read together with the provision of Article I, Section 8, that grants Congress the power "to declare war," confers the responsibility for national defense – for making war – on the national government. The Constitution leaves only one narrow exception for emergencies in which states can "engage in War" if they are "actually invaded" or under imminent threat of invasion or a "Danger" so great that it would merit war in response….
At no point in the Constitutional Convention or any of the state ratification debates does anyone, except when speaking metaphorically, employ "invasion" to describe a non-violent, non-military event…..
More to the present point, absolutely no one at the Constitutional Convention or the state ratification debates used the word to connote the peaceful movement of immigrants (lawful or otherwise) from one country to another.
I discussed the original meaning of "invasion" here, highlighting (among other things) James Madison's unequivocal statement that "Invasion is an operation of war."
Vladeck recognizes (correctly, I think), that an attack by nonstate actors could qualify as an invasion, but notes that does not mean illegal migration does:
In a recent case involving a dispute with the federal government over Texas's placement of movable buoys in the Rio Grande, Texas has claimed that "invasions" can come from non-state actors—and that what's happening in Texas right now is an invasion.
The argument that non-state actors can "invade" states is certainly a reasonable one—especially in light of the historical and contemporary examples of the United States engaging in armed conflict with entities other than the militaries of foreign states. But that's about as far as Texas's argument makes sense. Indeed, three different courts of appeals have already rejected arguments that an uptick in unauthorized border crossings by migrants could qualify as an "invasion" for constitutional purposes.
In Padavan v. United States, for instance, the U.S. Court of Appeals for the Second Circuit rejected a claim by New York state elected officials that federal immigration policies vis-à-vis undocumented immigrants were facilitating an "invasion": "In order for a state to be afforded the protections of the Invasion Clause, it must be exposed to armed hostility from another political entity, such as another state or foreign country that is intending to overthrow the state's government." The Third Circuit followed suit three months later in New Jersey v. United States, dismissing New Jersey's argument because "[i]t offers no support whatsoever for application of the Invasion Clause to this case or for its reading of the term 'invasion' to mean anything other than a military invasion." (And the Ninth Circuit echoed both in a subsequent ruling.) As these cases make clear, however far the term "invasion" might be stretched, extending them to unauthorized border crossings by unarmed migrants just doesn't come close. Nor should it. Recall that the purpose of the Invasion Clause is to permit a state to engage in war against those invading it. The idea that Texas could "engage" in a "war" against such (mostly unarmed) foreign nationals is little more than a rhetorical flourish….
Both Bowman and Vladeck make many good points. Both articles reading for anyone interested in this issue!
I don't fully agree with all of their arguments. Most notably, I am not sure I am convinced by Vladeck's claim that a federal statute could override a state's right to engage in war even in a situation where the state really is facing an invasion. But that issue does not arise in a situation where supposed invasion is really just some combination of illegal migration and smuggling.
Whatever the right policy response to these challenges (I think it's to make legal migration easier and to end the War on Drugs), their existence doesn't authorize a state to wage war, or the federal government to suspend the writ of habeas corpus. Under the Constitution, both of these extreme measures would be permissible if there really was an invasion.
In response to a recent Supreme Court ruling allowing federal law enforcement officials to cut through razor wire Texas placed at parts of its southern border, Texas Gov. Greg Abbott issued a statement doubling down on claims that undocumented migration qualifies as an "invasion" empowering Texas to ignore federal laws to the contrary:
Under President Biden's lawless border policies, more than 6 million illegal immigrants have crossed our southern border in just 3 years. That is more than the population of 33 different States in this country. This illegal refusal to protect the States has inflicted unprecedented harm on the People all across the United States.
James Madison, Alexander Hamilton, and the other visionaries who wrote the U.S. Constitution foresaw that States should not be left to the mercy of a lawless president who does nothing to stop external threats like cartels smuggling millions of illegal immigrants across the border. That is why the Framers included both Article IV, § 4, which promises that the federal government "shall protect each [State] against invasion," and Article I, § 10, Clause 3, which acknowledges "the States' sovereign interest in protecting their borders." Arizona v. United States, 567 U.S. 387, 419 (2012) (Scalia, J., dissenting).
The failure of the Biden Administration to fulfill the duties imposed by Article IV, § 4 has triggered Article I, § 10, Clause 3, which reserves to this State the right of self-defense. For these reasons, I have already declared an invasion under Article I, § 10, Clause 3 to invoke Texas's constitutional authority to defend and protect itself. That authority is the supreme law of the land and supersedes any federal statutes to the contrary.
The argument that immigration is "invasion" is badly wrong and has dangerous implications that go far beyond the specific details of the razor wire case.
Abbott and his lawyers would do well to stop citing James Madison to buttress their invasion argument. As I explained in a previous piece on this issue, Madison specifically rejected the idea that immigration qualifies as invasion:
Those who cite Madison in support of equating immigration and invasion ignore the one time he directly addressed this very question: the Report of 1800, which rebutted claims that the Alien Friends Act of 1798 (which gave the president broad power to expel non-citizens) was authorized by the Invasion Clause. There, Madison explicitly rejected the idea that immigration qualifies as invasion, emphasizing that "Invasion is an operation of war."
Claims that other statements by Madison support the theory do not withstand scrutiny for reasons I summarized here.
If courts were to endorse the idea that illegal immigration qualifies as "invasion," it would have absurd and dangerous implications. Here's my brief summary of a key reason why:
[I]f illegal immigration or drug smuggling really do qualify as an "invasion," then [Article I, § 10, Clause 3 of] the Constitution [the provision cited by Abbott] authorizes states to "engage in War" as a response. In other words, Texas would be authorized to take such actions as sending its National Guard to invade Mexico, in order to attack drug cartels or forestall undocumented migration…. This absurd—and dangerous—implication of Texas's argument is an additional reason to reject it.
And Texas could then "engage in war" without any congressional authorization, and—if Abbott is right—in defiance of federal statutes to the contrary.
In the water buoy case, federal district Judge David Alan Ezra (a Republican Reagan appointee) described Texas's position as a "breathtaking" assertion of unilateral state power. If anything, he understates the point.
I would add that Texas and other states could use that claimed authority anytime they want. Since the US began to enact severe restrictions on migration across the southern border, there has never been a time when there wasn't large-scale undocumented migration across it. No president – Donald Trump included—has ever even come close to stopping it. Large-scale illegal migration is a natural consequence of the combination of severe restrictions on legal migration, job opportunities in the US, and terrible conditions in the countries most migrants are fleeing. It can potentially be reduced by making legal migration easier. But Abbott and most other Republicans are opposed to that.
Much the same point applies to cross-border drug smuggling, which is a natural consequence of the War on Drugs. Since that ill-advised metaphorical war began, there has never not been extensive cross-border trafficking in illegal drugs—including under Trump.
If illegal migration and drug smuggling count as "invasion," we are always in a state of "invasion" and affected states can "engage in war" anytime they want. Even if there is relatively more illegal migration now than a few years ago, there have long been hundreds of thousands of cases per year. If illegal migration qualifies as an "invasion" at all, it does so all the time, not just when a Democratic president is in office or when there is a spike compared to previous years.
The writ of habeas corpus protects people from being detained by the government without trial. If federal or state officials detain you, the writ gives you the right to challenge the legal basis for that detention in court. But the Suspension Clause of the Constitution (Article I, Section 9, Clause 2) states that "The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it" (emphasis added).
If illegal migration and drug smuggling qualify as "invasion" for purposes of triggering state and federal authority to resist invasion under the invasion clauses, they surely also qualify as such under the Suspension Clause. And there is a significant amount of illegal migration and smuggling of contraband goods going on at virtually all times in modern history. Thus, presto! The federal government can suspend the writ of habeas corpus virtually any time it wants!
Do Gov. Abbott and other Republicans want Joe Biden to be able to claim the power to detain people without charges anytime he wants? That's where their logic leads! I expand on this point in greater detail here.
If the framers and ratifiers of the Constitution had expected the invasion provisions of the Constitution to have such radical implications, one would expect them to note it at some point during prolonged debate over ratification. But there is no evidence that they did. The habeas corpus issue, in particular, is one that would have raised hackles in the Founding era, as British abuses of habeas corpus were a major grievance during the American Revolution.
Legal issues aside, the drumbeat of rhetoric equating drug smuggling and immigration and invasion has dangerous policy implications. An invasion is the kind of thing to which governments usually respond with overwhelming force. The more people think immigration and drug smuggling are equivalent to an invasion, the greater the likelihood there will be political pressure for such draconian measures as killing migrants, family separation (which Trump may seek to revive if he returns to power), and the idea of turning the War on Drugs into a real war by invading Mexico (a dangerous proposal increasingly popular in GOP circles). At the very least, "invasion" rhetoric moves the Overton Window on such ideas in the wrong direction.
For the moment, Abbott's invasion statement is likely to have only very limited effect. The Supreme Court ruling merely lifts the lower court injunction barring federal officials from cutting the razor wire installed by Texas. It does not actually order Texas itself to do anything, or even to refrain from installing additional wire. Thus, were are left with a weird situation where the feds can cut the wire, Texas can install more, the feds can cut it again, and so on. That may continue unless and until the courts resolve the case more fully.
But Texas's invasion arguments have dangerous implications for both legal and political reasons. Courts would do well to continue to reject them.
Despite attempts to claim otherwise, Donald Trump's demand for absolute immunity for any criminal acts committed while president goes far beyond the qualified immunity currently extended to police officers and other government officials. A recent Politifact article (where I and other legal scholars were interviewed) explains why:
As former President Donald Trump petitions the courts to be held legally immune for his actions as president, he's begun comparing presidents and police officers.
In a Jan.19 Truth Social post, Trump argued that "a president of the United States must have full immunity, without which it would be impossible for him/her to properly function." He added that immunity is needed even for "events that 'cross the line,'" though he didn't specify what he meant.
"You can't stop police from doing the job of strong & effective crime prevention because you want to guard against the occasional 'rogue cop' or 'bad apple,'" he wrote in all caps….
Legal experts told PolitiFact that whatever the judicial ruling, Trump's suggestion that he's seeking what police officers already have is flawed.
"What Trump seeks goes far beyond" the protections police officers have, said Ilya Somin, a George Mason University law professor….
The legal protection that police officers and other government officials are afforded is known as "qualified immunity." It is intended to protect officers conducting official duties not only from being held financially liable for their actions but also from being forced to face trial over those actions.
But as the "qualified" denotes, this type of immunity is not all-encompassing for key reasons:
It applies to civil cases, not criminal charges. "It has nothing to do with criminal liability," said Joanna C. Schwartz, a UCLA law professor. If officers are charged with a crime, as happened with the officers in the 2020 death of Minneapolis resident George Floyd, they can stand trial.
In civil cases, accused officers have to invoke qualified immunity as a defense, and the judge may or may not grant them protection. The accused officer can still be pursued in a civil lawsuit if the judge decides that that officer acted incompetently or knowingly violated the law….
Schwartz said the qualified immunity defense "is very strong, but it is not insurmountable…."
Trump's lawyers have said in court that they are seeking much broader immunity than what police officers receive.
Trump "seeks full immunity, not just 'qualified' immunity," Somin said. "And he is seeking immunity for criminal conduct, not just civil violations."
During oral argumentsJan. 9 before the three-judge federal panel, one judge asked Trump's attorney, D. John Sauer, whether the president should, hypothetically, be immune from prosecution for ordering U.S. Navy commandos to assassinate a political rival.
Sauer said that unless the president had been impeached first, such a prosecution would be invalid.
If you don't want to take my word for the difference between the two, you should at least heed that of Joanna Schwartz, who is probably the nation's leading expert on qualified immunity.
As both she and I have argued in the past, qualified immunity is a badly flawed court-created doctrine that the Supreme Court would do well to reverse. But I must acknowledge QI is at least endorsed by current Supreme Court precedent. The absolute immunity Trump seeks has no such precedent behind it, and would be even more egregious than QI is. It goes much further, and would allow presidents to escape liability for even the most serious crimes. Moreover, unlike a cop on the beat, a president cannot readily argue that he has to make quick decisions on the fly with no opportunity to seek legal advice.
No government official deserves such sweeping immunity. And certainly not the one with the greatest potential to abuse it. Even if you trust presidents of your preferred party with that kind of power, ask yourself if you have similar faith in presidents of the opposing party.