This evening, immediately after I turned my phone on, I saw headlines about shots fired at the Washington Hilton where President Trump was attending the White House Correspondents Dinner. For the second week in a row, I do not get a leisurely return to the cloud. Shavua Tov.
For the past two years, the Federalist Society has held its national lawyers convention at the Washington Hilton, better known as the Hinkley Hilton. This is the place where John Hinkley, Jr. shot President Reagan and Press Secretary James Brady in 1981. You may better know Brady as the namesake of the Brady Gun Control Act that was challenged in Printz v. United States. Randy and I feature a photograph of the hotel in our discussion of Printz.
In 2023, I bid farewell to the Mayflower, and in 2024, I wrote about the new experience at the Hilton. The experience was, on balance, negative. I am beyond grateful that the Convention will be returning to the Mayflower in 2026 (thanks Sheldon).
But having spent some time at the Hilton, I can see why it poses unique security threats. To start, it is a functional hotel. Even if there is a "hardened" event in the ballroom (located in the basement), there are still thousands of guests walking around inside and outside the building.
When I traveled to the convention last November, Vice President Vance was speaking at the 250th U.S. Marine Corps Birthday Ball. Because I was a hotel guest, I was able to clear the perimeter security. Later that evening, I decided to go to the gym, which was accessible through a different elevator. The gym was also in the basement. After I finished working out, just of curiosity, I walked towards the ballroom. By that point, the event was over, Vance had left, and the magnetometers were gone, but I was able to walk right to the the ballroom, even though access was still being restricted. The thought crossed my mind of how easy it would be to sneak into the venue.
There are many unknowns now.
President Trump is about to give remarks in the Brady press room.
Update: It appears the alleged shooter was a guest at the hotel. The video shows he was taken down near the Terrace Foyer on the Terrace Level. You can see from this map how close the Health Club was.
A short excerpt from Thursday's 76-page decision by Judge Jessica Clarke (S.D.N.Y.) in Doe v. Black (see also this article yesterday by Politico [Erica Orden]):
This case is an action under the New York City Victims of Gender-Motivated Violence Protection Law. Plaintiff Jane Doe alleges that Defendant Leon Black brutally raped and assaulted her in New York City in 2002, when she was only sixteen years old. She claims that prior to this assault, she was abused and groomed by Jeffrey Epstein ("Epstein") and Ghislane Maxwell ("Maxwell")—who then trafficked her to other men, including Defendant.
Although the parties have exchanged almost no discovery, Defendant brings a Motion for Case-Terminating Sanctions based on lies, fraud, and spoliated evidence that he contends render this case rotten to the core. Ultimately, the Court finds that both Plaintiff's former attorney Jeanne Christensen ("Ms. Christensen"), on behalf of Wigdor LLP ("Wigdor"), and Plaintiff Jane Doe have engaged in serious, sanctionable misconduct in this case. However, taking seriously its obligation to remedy prejudice with lesser sanctions where available, the Court finds that this misconduct need not doom Plaintiff's claim.
The Court issues various factual and legal findings to support sanctions here. Plaintiff's former counsel—Ms. Christensen—lied repeatedly to the Court and to opposing counsel in this litigation about what was happening in a related action. Ms. Christensen also directed Plaintiff to destroy a relevant social media account that Plaintiff used to communicate publicly about her experiences as a purported Epstein victim. And, Plaintiff falsified sonogram images in her personal journals, which her First Amended Complaint relies on to support the allegations in this action.
With the Supreme Court set to hear argument in the geofence warrant case, Chatrie v. United States, on Monday, I thought I would provide links to all my posts relating to the case and the issues over the years. Here they are, in reverse chronological order:
Plaintiffs … bring this action arising from an early-education investment project in Shenyang, China, asserting claims under the Foreign Sovereign Immunities Act, the Alien Tort Statute, and the Torture Victim Protection Act. Plaintiffs filed an eight-page Complaint on the public docket. They concurrently moved to file a separate, unredacted Complaint—together with a voluminous set of exhibits—under seal….
Plaintiffs' Motion arises from concerns that the Complaint contains "sensitive information relating to personal safety, foreign-related legal procedures, and ongoing matters involving foreign government entities." Two flaws, however, pervade their request: the scope of information Plaintiffs have redacted far exceeds the narrow request they claim to advance, and the harms they invoke—threats from Defendants themselves—are harms that sealing cannot prevent….
I blogged Wednesday about the indictment of the Southern Poverty Law Center for, among other things, supposedly defrauding donors. The theory is that the SPLC raised money by telling donors that it was aiming to "dismantle" violent extremist groups—but spent over $3M paying hate group leaders for information and, in at least one instance, to actually put out hate messages at the SPLC's direction. The indictment also alleges that, to hide the source of the funds, the SPLC caused false statements to be made to banks: It had its employees open accounts that it claimed were owned by them personally, on behalf of certain shell entities, but were really owned by the SPLC. I thought it might be helpful to think about this using a hypothetical, and seeing what we think about both the SPLC case and the hypothetical together.
Let's say that the SPLC prosecution didn't happen in 2026, and we're now in 2030. Gavin Newsom is President, and the Justice Department announces an indictment. The target is a prominent conservative activist group. The indictment alleges the group raised money by telling conservative donors that it would fight antifa and other sometimes violent left-wing extremist groups. It turns out that it developed an extensive network of paid informants within the leadership of those groups, and indeed paid money to at least one to actually spread leftist extremist messages.
The Justice Department says all this was fraud on the donors, and also that in the process the group had employees open bank accounts using group funds but claiming the funds were personal, and thus lied to the banks and violated anti-money-laundering rules. What would we, as people sympathetic in some measure to the group's overall mission, think?
[1.] I expect some of us might think the group was being kind of slimy. It's been talking about all this left-wing extremism it's fighting, but how much of it was actually ginned up by the group instead?
[2.] At the same time, some of us might think the group is being pretty cunning. Here it's getting lots of information about its enemies. To the extent it's prodding some of its paid informants to actually say extremist things, maybe it's effectively discrediting its enemies. And if we think there really would be plenty of genuine violent left-wing extremism even without the group's funding, we might think that its spending was actually pretty useful to its stated cause. Slimy and effective, after all, aren't always inconsistent for political advocacy groups. Sure, the sliminess might on balance cancel out the effectiveness, but maybe not always.
[3.] We might also wonder whether the Newsom Administration is targeting the group because of its ideology, rather than out of a fair application of neutral prosecutorial judgment. That's always a plausible concern with prosecution of political groups by political actors, but especially in so in a highly politicized time.
From PETA, Inc. v. Reynolds, decided Thursday by the Eighth Circuit (Judge Steven Grasz, joined by Judges James Loken and Raymond Gruender):
[Iowa's] general trespass statute defines "trespass" to include "[e]ntering or remaining upon or in property … after being notified or requested to abstain from entering or to remove or vacate therefrom by the owner …." "A person has been notified or requested to abstain from entering or remaining upon or in the property … if … [t]he person has been notified to abstain from entering or remaining upon or in property personally, either orally or in writing …." When an ordinary trespass does not result in bodily injury or property damage exceeding $300, the offense is a "simple misdemeanor" and is punished by a fine between $105 and $855 and up to 30 days of imprisonment.
In 2021, Iowa decided its general trespass statute was not deterring trespassers from unlawfully entering private property to record their trespasses. So it enacted § 727.8A to create a new "trespass-surveillance" offense, which it treated more harshly than ordinary trespass. For instance, under § 727.8A,
[a] person committing a trespass as defined in section 716.7 who knowingly places or uses a camera or electronic device that transmits or records images or data while the device is on the trespassed property commits an aggravated misdemeanor for a first offense and a class "D" felony for a second or subsequent offense.
Iowa punishes aggravated misdemeanors with a fine between $855 and $8,540 and up to two years of imprisonment, and class D felonies with a fine between $1,025 and $10,245 and up to five years of imprisonment.
Two … animal-welfare groups, including ICCI [Iowa Citizens for Community Improvement], developed as-applied challenges on remand, contending the statute's prohibition against using cameras while trespassing chills their members' speech when applied to prevent them from recording on private property that is otherwise open to the public after being asked to leave but not to stop recording. Relevant here, ICCI alleges its members intentionally record themselves committing ordinary trespasses, "particularly … at political and corporate sites," to draw attention to their activities. ICCI alleges its members are willing to suffer the consequences for ordinary trespass but the heightened penalties for trespass-surveillance have chilled their speech….
Whether the First Amendment protects ICCI's members' speech in this context is an open question. We know "freedom of speech includes expression through the making and sharing of videos" in some instances. But the Supreme Court "has never held that a trespasser … may exercise general rights of free speech on property privately owned and used nondiscriminatorily for private purposes …." Lloyd Corp. v. Tanner (1972); see also Hudgens v. NLRB (1976) (holding picketers "did not have a First Amendment right to enter [a privately owned] shopping center for the purpose of advertising their strike"). We need not resolve this question because even assuming recording while trespassing implicates the First Amendment, ICCI's as-applied challenge fails.
Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.
New cert petition! In 1960, the Supreme Court as good as erased the oath-or-affirmation requirement from the Fourth Amendment, thereafter permitting warrants to issue based on hearsay—instead of firsthand testimony from an actual witness. Now we're asking the Court to stop flouting text, original meaning, and a deep well of pre-1960 precedent and to take up the case of Michael Mendenhall, who was arrested and had his Denver office searched based on thirdhand hearsay from an obviously unreliable source. Click here to learn more.
New on the Short Circuit podcast: Live from Penn Law we continue our #12Months12Circuits series with Circuit Numero Tres. Reverse discrimination, prophylactics, and semi-sanctionable hallucinations.
Based on a Presidential Proclamation, the current administration started summary deportation proceedings without adhering to procedures—such as allowing people to apply for asylum—that Congress adopted. A set of nonprofits sue and receive an injunction and class certification. D.C. Circuit: Which was correct. Congressional statutes > stuff the President says. Dissent: I agree the Proclamation is too broad in some respects. But I'll note that the inhabitants of North Sentinel Island don't have standing in this case.
More than 99% of transgender female prisoners held in federal custody are housed in male prisons. The remaining <1% are housed in female prisons based on individualized factual findings by the Bureau of Prisons that these inmates are at particular risk of harm if housed in male prisons. In 2025, President Trump issues an executive order requiring these inmates to be transferred to male prisons. Eighteen trans inmates sue and secure a preliminary injunction against the transfer. D.C. Circuit (over a dissent): Which they may be entitled to, but the district court needs to do an individualized assessment for each inmate. Injunction vacated. Read More
From the long opinion in Moore v. Cecil, decided today by Judge Elizabeth Branch, joined by Judges Jill Pryor and Frank Hull:
In 2017, Roy Moore ran as the Republican nominee in a special election to fill an open seat for one of Alabama's United States senators. In the final weeks before the election, multiple news outlets reported that several women had accused Moore of inappropriate sexual conduct with them when they were young. Senate Majority PAC ("SMP") grabbed onto the news reports and ran a campaign ad that stated, among other things, in separate individual frames that (1) "'Moore was actually banned from the Gadsden Mall … for soliciting sex from young girls,'" and (2) "[o]ne he approached 'was 14 and working as Santa's helper.'" [An underlying news report had "asserted that Moore approached Miller and told her she was pretty when she was 14 years old and working as Santa's helper and that Moore asked Miller out on dates two years late," so the argument appears to be that he had never approached a 14-year-old for sex. -EV] SMP ran the ad hundreds of times, and Moore eventually lost the election.
Moore sued SMP for defamation and false-light invasion of privacy under Alabama law, arguing in relevant part that the two statements above when read together created the false defamatory implication that he had solicited the 14-year-old girl working as Santa's helper for sex…. The jury found SMP liable for defamation and false-light invasion of privacy, and it awarded Moore $8.2 million in compensatory damages….
SMP appealed, and the Court of Appeals held in its favor:
Moore's case … involves an allegation of defamation-by-implication (or as Moore puts it, the statement that resulted from the juxtaposition of frames 2 and 3 of SMP's ad), not express defamation. {Moore's theory was that the statement in frame 2 that he "was actually banned from the Gadsden Mall … for soliciting sex from young girls," when combined with the statement from frame 3 that "[o]ne he approached 'was 14 and working as Santa's helper,'" falsely created "a new statement" that he solicited sex from Wendy Miller when she was 14 years old and working as Santa's helper.}
Defamation-by-implication is fraught with subtle complexities and is more nuanced than express defamation. "'Defamation by implication' occurs when a defendant juxtaposes a series of facts to imply a defamatory connection between them." Thus, "a defamation by implication stems not from what is literally stated but from what is implied."
I have been posting on Chatrie v. United States, the Supreme Court's geofencing case to be argued on Monday. In this post, I wanted to talk a bit on why the search question is particularly hard.
The Supreme Court has long struggled to explain what makes government action a "search" of an individuals' "persons, houses, papers, and effects." The Fourth Amendment is generally understood to have been enacted in response to a series of disputes in the 18th Century, like Entick v. Carrington and Wilkes v. Wood, which were about what kinds of warrants were permitted to conduct a physical search. But a central challenge of modern Fourth Amendment "search" law has been that technology allows for so many equivalents of physical searches that do not involve actual physical intrusion.
There is broad agreement that the Fourth Amendment needs to extend beyond actual physical intrusion: If it didn't, the role of the Fourth Amendment would diminish over time in a world of wiretapping, thermal imaging, and network-stored records. The hard question is, what's the test for how to make sure the Fourth Amendment maintains that role over time, preserving its protections as technology changes?
The Court has not done the best job at articulating this, I think. It did a few things that make it extra hard. Two under-appreciated things stand out.
First, the Court has ignored a lot of the Fourth Amendment's text, which made the issue a lot harder to understand. The Fourth Amendment prohibits unreasonable "searches" of "persons, houses, papers, and effects." But the Court's precedents have often just described the issue as being what is a "search," ignoring the required thing to be searched in that language: "persons, houses, papers, and effects." The word "search" has long had a range of different meanings, going back to 18th Century, and reducing the question to that one word adds a lot of confusion: It strips the constitutional question of its context and its history of the cases like Wilkes, Entick, and the Writs of Assistance case.
Of course, the full text is not always ignored. As the Court's curtilage caselaw has frequently noted, the Fourth Amendment "indicates with some precision the places and things encompassed by its protections: persons, houses, papers, and effects." Florida v. Jardines, 569 U.S. 1 (2013). But I think it has been under-appreciated that the proper question is not what is a "search" in some isolated or abstract sense, but rather what is a "search" of "persons, houses, papers, and effects" that reflects the understanding of those terms in the major disputes that inspired the enactment of the Fourth Amendment.
Second, many modern Justices have assumed the correctness of a simple narrative about the Fourth Amendment that Justice Brennan introduced in Warden v. Hayden, 387 U.S. 294 (1967). Looking for a framework to justify lots of innovations in Fourth Amendment law, Justice Brennan made a pitch that the Fourth Amendment had previously been based on property principles but was henceforth to based on privacy principles: Read More
On Monday, I wrote about an unusual situation at the Supreme Court: even though Kannon Shanmugam of Paul Weiss was counsel of record in a case, it was argued by Elizabeth Prelogar of Cooley. I couldn't quite make sense of the switcheroo. I surmised,"There must be more to the story."
And so there was more to the story. Today Kannon Shanmugam, as well as Masha Hansford, moved from Paul Weiss to Davis Polk. I had heard a rumor of this after I wrote my post, which has now been confirmed.
This move doesn't fully explain exactly why Shanmugam, or someone at Paul Weiss, didn't argue the case. I suspect there is still more to the story.
In related news, Jeff Wall and several other partners have moved from Sullivan and Cromwell to Gibson Dunn.
It sounded at least somewhat promising when Tinder announced last year that it would start requiring photo verification for new users across the United States. Deploying a technology called "Face Check", Tinder would have every such user take a video selfie whose coordinates would be compared against pictures uploaded with the profile. While this is a partial improvement over the previous state of things where facial verification was generally optional, significant flaws are emerging.
Earlier this month, journalist Christophe Haubursin uploaded a video to YouTube that showed a strange phenomenon whereby a lot of Tinder profiles exhibited a similar pattern without obvious initial explanation. The first eight profile pictures would show one individual, but then the ninth picture would be an artistic version of a different individual (say, a face embedded in a painting or mural). A reverse image search would uncover that the first eight pictures were of a--conventionally good-looking--person with a different identity than that portrayed by the profile.
Haubursin began suspecting that Face Check was deeming "verified" profiles where as few as one of the pictures corresponded to the required video selfie. He tested this hypothesis himself and confirmed it: all a profile needed to render it verified was one (even stylized) picture that matched the video selfie, even if it was preceded by eight pictures of someone who looked completely different and who most people would assume was the actual holder of the profile. Haubursin also contacted some of the people with these types of profiles, and unsurprisingly at this point they were actually crypto scammers. Read More
Do the internal Supreme Court memos concerning the stay of the Clean Power Plan reveal judicial hypocrisy or a failure of the justices to apply the proper standard of review? Many commentators seem to think so. Many also seem to think the memos (and those by the Chief Justice in particular) contain errors or omissions that were not commented upon by the other justices.
At Divided Argument, William Baude and Richard Re respond to the claims that the Court failed to adequately or consistently account for irreparable injury to the government and did not apply the appropriate standard of review. On the former point thy write:
The problem with criticisms like these is that they conflate two different legal doctrines. The Court has stated a rule that the government faces irreparable injury when its policies are blocked. But that is a rule that applies to the moving party. That is, when the government seeks to have a lower court order lifted, it is almost axiomatic that the lower court order injures the government, so the Court focuses on other factors, such as the merits of the case.
This rule had no application in the Clean Power Plan case because the Obama Administration was not the moving party. Instead, the challengers to Clean Power Plan were the moving party: they were the ones seeking a stay.
On the question of the standard of review, Baude and Re write:
Another criticism is that the Chief Justice's memo clearly applied the wrong standard of review. Here, too, the critics are at best overstating their case. The factors applied by the Chief Justice were sensible ones drawn from prior cases and the briefing before the Court.
And, notably, for all of the internal pushback from the dissenting justices, they did not push back on the standard of review. Perhaps this is because the details of the standard of review do not matter so much. In a somewhat novel case, any relevant substantive points can be channeled into the plausible alternative standards of review as well.
As they note, there was some ambiguity about the proper standard to apply, and whether the authority for the stay should be understood to come from the All Writs Act, APA Section 705, or somewhere else. In any event, the Court considered what we would expect to it consider.
I would add that it's a mistake to read these internal memoranda as if they were public judicial opinions, as opposed to memoranda distributed to a specialized audience. My experience as a judicial clerk may not be representative, but I recall memoranda by judges to their colleagues that focused on the issues and questions of immediate concern that did not walk through or spell out all of the relevant considerations, let alone seek to provide guidance to lower courts.
Baude and Re continue:
the Court applied its normal equitable inquiry, citing both the general standard for a stay pending appeal and the standard for stays of administrative action set out in Nken v. Holder. These two standards are really applications of the same underlying principles. Both standardsfocus on a likelihood of success (which in this context includes an assessment of certworthiness) and irreparable injury to the moving party. The Chief Justice squarely addressed those critical points. When the government is a party, these standards also allow consideration of the balance of the equities in close cases. And the Chief Justice not only noted that point, but also had a clear view as to how it applied, particularly given the threat that he perceived to the Court's authority. . .
Perhaps the Court was wrong to rely so much on the likelihood of success, especially at such an early stage of the proceedings, and to be so concerned about the executive branch's efforts to circumvent the judiciary. At the same time, those considerations are hardly unique to the Clean Power Plan case and they have reemerged when the justices faced other cases of fast-moving executive branch overreach. Take AARP v. Trump or the Illinois National Guard case.
Or perhaps critics simply disagree with the ultimate judgments the majority reached. That is fine, but a very different point from whether the memos reveal basic doctrinal errors or hypocrisies, which we doubt.
My prior posts on the "shadow papers" and the "shadow docket" more broadly can be found here.
The rise of "abundance liberalism" is one of the few good political developments of the last few years. Abundance liberals and related thinkers like Ezra Klein and Derek Thompson (authors of the best-known book promoting the movement), Matt Yglesias, Catherine Rampell, Kelsey Piper, Noah Smith, Jerusalem Demsas, and others are left-liberals who advocate market-based approaches to a variety of important issues. Smith and famous law professor Cass Sunstein have even written recent articles expression new-found appreciation for libertarianism.
I think the growth of this movement is extremely promising, even though it has some flaws and internal contradictions. And it's a source of potentially valuable allies for libertarians and other free market advocates, at a time when we badly need them.
Despite my general enthusiasm for the abundance movement, I actually agree with many of the criticisms and reservations expressed by libertarians like and free market conservatives, like Bryan Caplan, Samuel Gregg, and Richard Reinsch. In particular, the critics are right to highlight how many abundance liberals embrace market approaches on some issues (most notably trade and housing), but reject them on others (e.g. - health care and education), without recognizing that most of the reasons for curbing government intervention in the former areas also apply to the latter. In addition, Bryan is right to urge the abundance advocates to push their case further in those areas where they do embrace markets, particularly when it comes to immigration.
That said, we should never let the best become of the enemy of the extremely good. And abundance liberalism is indeed extremely good! The issues where they support major movement towards freer markets - most notably housing, trade, immigration, and nuclear power - are extremely important ones. They have enormous effects on the life, liberty, and happiness of tens of millions of people. A coalition focused on these big issues could have great value, even in spite of differences on other matters.
1. Magnitude of effects on human freedom and happiness. Big effects deserve priority over small ones.
2. Easy to implement solutions. Problems with simple, quick fixes deserve priority over ones where the solution is difficult and/or requires a massive increase in competence and capacity.
3. The possibility of incremental progress. Issues where incremental progress is possible deserve priority over "all or nothing" issues, except in unusual revolutionary situations.
The issues on which abundance liberals are good all check every one of these boxes. Indeed, I highlighted two of them (housing and immigration restrictions) in my original 2024 post. All these issue have huge effects on human freedom and welfare, and solutions are relatively easy to implement (in most cases just ending or cutting back on harmful government intervention; though nuclear power is somewhat more difficult). And incremental progress on all of them is feasible. Even if we cannot abolish all exclusionary zoning, we can make progress by getting rid of some. Even if we cannot abolish all immigration restrictions, we can greatly improve the world by abolishing some. And so on.
In addition to these important areas of agreement on specific issues, abundance liberals and libertarians also have significant (though, far from total) agreement on some important general principles. Both groups tend to support liberal individualism over various types of collectivism, whether those of the left or the nationalist right. Many of the abundance liberals dislike conventional left-wing identity politics, even if not as much as most libertarians do.
Kelsey Piper even wrote a recent article critiquing affirmative action. Part of her objection is that racial preferences are extremely unpopular (which is true) and thus a drag on the electoral fortunes of the Democratic Party. But she also objects to these kinds of policies on principle:
Our foundational commitment is that every person is an individual, created equal, and deserving of equal treatment under the law and equal opportunity. That means you shouldn't get judged by the average qualities of your group. You shouldn't be judged as less impressive because other East Asians have, on average, higher test scores, and you shouldn't be judged as more impressive because other Hispanics have, on average, lower test scores.
Preach it, sister!
Abundance liberals and libertarians also have in common an appreciation for basic Econ 101. For example, both groups recognize that when government restricts supply (as with exclusionary zoning in the case of housing), that increases prices and creates shortages. Similarly, tariffs are harmful because they prevent mutually beneficial trade, thereby making us poorer and the economy less efficient. Abundance liberals recognize more exceptions to these general principles than libertarians do, and tend to believe that market failures are more common than is actually the case. But the initial acceptance of basic Econ 101 is still extremely important.
And abundance liberals are not afraid to criticize left-wing policies when the latter deviate from Econ 101 without a compelling reason. For example, almost all abundance liberals reject rent control, and many were highly critical of Biden's student loan forgiveness program., because it created a variety of perverse incentives and helped the relatively affluent at the expense of the needy, instead of vice versa.
In addition to agreement on some key issues and principles, abundance liberals and libertarians also have important common enemies in the form of the national right and the "democratic socialist" left. Sometimes, common enemies bind people together more than anything else.
Abundance liberals are also potentially valuable allies because they seem to have some real influence in Democratic Party politics, and on the political left generally. A variety of Democratic governors - including Gavin Newsom (California), Jared Polis (Colorado), and Kathy Hochul (New York) have embraced various abundance liberal "YIMBY" housing deregulations. Massachusetts Governor Maura Healy has even coupled that with forcefully opposing rent control, which I never thought I would see a prominent liberal Democratic politician do. It is even possible - though far from certain - that an abundance-oriented candidate might win the 2028 Democratic presidential nomination.
The old "fusionist" alliance with the conservative right is dead, and we need new allies, as libertarians are pretty obviously not strong enough to achieve a lot on our own. Abundance liberals are by far the best available alternative coalition partners.
Abundance liberals might ask: what good are libertarians to us? It's not as if libertarianism is vastly popular. In answer, I would note that libertarian intellectuals and policy experts have long batted above their weight and wielded important influence, including on issues central to the abundance agenda, such as housing, immigration, and trade. In addition, depending on how you define them, libertarian-leaning voters are some 7-20% of the population (I think the lower-bound figures are more plausible than the higher ones). And many of them tend not to have strong party loyalties, and therefore can be swing voters. That's nowhere near enough to win elections by themselves. But it could be a valuable voting bloc in close elections.
In this post, I do not try to outline in any detail how such an alliance might work. That remains to be seen, and is probably best worked out by people with better connections and greater political skill than I have. But I do want to suggest the general idea, thereby hopefully giving a nudge to those who do have the requisite skills. I would add that an effective coalition should have both an elite/intellectual element and a more popular one focused on moving public opinion and influencing electoral results.
There is the important caveat that political developments are often hard to predict. Perhaps in five to ten years, the Democratic Party will be dominated by socialists, while the MAGA nationalist movement will have collapsed, allowing more market-oriented conservatives to regain control over the GOP. Other types of unexpected developments might also happen, that make an abundance liberal/libertarian alliance ineffective or unnecessary.
But, for the moment, this is a potential coalition that makes good sense. And it is likely to continue to do so as long as the issues that unite the two groups remain extremely important. I suspect most of them won't go away anytime soon.
An excerpt from yesterday's decision in U.S. v. California, by Judge Mark Bennett, joined by Judges Jacqueline Nguyen and Daniel Collins:
[T]he United States seeks an injunction pending appeal that enjoins … enforc[ement of] § 10 of the [California] No Vigilantes Act … against federal agencies and officers. Section 10 requires any non-uniformed "federal law enforcement officer" operating in California, with narrow exceptions, to "visibly display identification" while performing federal law enforcement duties. Officers who violate the law may be criminally prosecuted by the State….
We conclude that § 10 of the No Vigilantes Act attempts to directly regulate the United States in its performance of governmental functions. The Supremacy Clause forbids the State from enforcing such legislation….
When "[t]he Framers split the atom of sovereignty," they put the federal government under the "control[ ] [of] the people without collateral interference by the States," which "have no power, reserved or otherwise, over the exercise of federal authority within its proper sphere." To that end, the Supremacy Clause [of the Constitution] renders "the activities of the Federal Government … free from regulation by any state." "It is of the very essence of supremacy," the Supreme Court has emphasized, "to remove all obstacles to its action within its own sphere, and so to modify every power vested in subordinate governments, as to exempt its own operations from their own influence." Therefore, "where 'Congress does not affirmatively declare its instrumentalities or property subject to regulation,' 'the federal function must be left free' of regulation" by the States.
