From State v. Conrad, decided Monday by the Ohio Court of Appeals, in an opinion by Judge Eugene Lucci, joined by Judges Matt Lynch and Scott Ylnch:
In 2025, Conrad was living with his girlfriend and their ten-month-old son in Conrad's home in Wickliffe, Ohio. In April 2025, Conrad and his girlfriend were involved in a verbal altercation. After the girlfriend allegedly damaged Conrad's PlayStation console in the basement, Conrad called 911. He informed the dispatcher that he would be armed "because the cops are coming in here." The dispatcher responded, "Do not pick it up with your hands, okay?" Conrad stated, "Absolutely." After ending the 911 call, Conrad armed himself by holstering a handgun on his right hip and then went upstairs to await law enforcement.
When the first officer arrived, Conrad observed him approaching the front door on foot, at which point Conrad opened the door for the officer and informed him that he was armed. The officer responded by stating "pardon me" or "excuse me," and Conrad responded again that he was armed. The officer saw the firearm on Conrad's hip and informed him that he was going to relieve him of the gun. Conrad initially refused, stating, "No you're not," and he changed his stance by turning his right hip away from the officer. Conrad then motioned to or placed his hand on his gun, at which point the officer drew his own firearm. After loudly arguing as to whether Conrad was permitted to be armed, Conrad raised his hands and told the officer to take his gun. Approximately 23 seconds elapsed between the officer entering the home and the officer disarming Conrad.
After disarming Conrad, the officer spoke with him for several minutes regarding his decision to arm himself. During this conversation, Conrad indicated he had armed himself because he believed men were typically arrested when police were called for domestic matters, and he wanted to "eve[n] the playing field" because he was unsure how officers would respond and did not trust them. After speaking with Conrad, the first responding officer joined other officers who had arrived and were speaking to Conrad's girlfriend in the basement. The girlfriend indicated that Conrad had pushed her, and she fell back, bumping her hip against a table, during their dispute.
Conrad was acquitted of domestic violence, but convicted of violating R.C. 2921.31(A), which provides:
H1: Humanitarians, especially including scholars of international law regarding armed conflict, are neutral regarding the belligerent parties in the war, and the Humanitarians collectively are genuinely committed to the humanitarian needs of civilians and noncombatants among both Israelis and Palestinians.
H2: Humanitarians are indifferent to the humanitarian needs of the Israelis but genuinely committed to the humanitarian needs of the Palestinians. Operating on imperfect information in rapidly changing conditions, and limited by what is allowable in international law and what is politically or materially feasible, they seek whatever can be done to reduce or eliminate loss of life or suffering on the part of Palestinians either as a direct or indirect consequence of the war.
H3: Humanitarians are indifferent to the immediate humanitarian needs of Palestinian civilians, but they fervently wish to see Israel defeated in the war Hamas started on October 7. They fervently believe that the only moral conclusion to the war is one that is a net gain for the Palestinians and a net loss for the Israelis. To this end, they endeavor to act as force multipliers both in theatre to preserve Hamas' power and, especially, in Western states, to push for policies that limit Israel's freedom of action, cut it off from military supplies, and apply pressure on it.
H4: Humanitarians are indifferent to the war's strategic outcome and prefer to see more death and more suffering on the Palestinian side, not as an end in and of itself but rather as a means to confirm beliefs in Israel's essentially demonic nature, and as a way of mobilizing hatred and social isolation of Jews in the West. In particular, there is a preference for any rhetoric or political action which removes what are believed to be the unfair social privileges which western Jews hold due to the memory of the Holocaust.
As Mor elaborates: "Overwhelmingly … the majority of the real-life actions of the Humanitarians are in line with the predictions of H3, with a substantial minority also in line with H4. More strikingly, only a tiny amount are plausibly aligned with H2 and virtually none with H1."
This isn't news to anyone who has been paying attention, but it does beg the question: why? Why did concern about international humanitarian law and norms morph into support for Islamist terrorist groups and visceral hatred for Israel and often Jews in general, and a general lack of concern for the actual humanitarian needs even of the side they implicitly or explicitly support (H2)?
The simple answer is that the movement was taken over by a far left strongly influenced by a combination of anti-Western "anti-colonialist" theory and the massive investment of the late USSR is spreading "antizionist" propaganda. But how and why did the relevant institutions, once proudly "liberal" in the broad sense (e.g., Amnesty International and Human Rights Watch) get taken over by the far left? There is a good book to be written on this, if anyone is so inclined.
In April 2022, plaintiff [Lindsay Olson] prepared an expert report titled "Multi-District Comparative Community Attitude Study" (the "Report") at the request of two attorneys representing two criminal defendants charged in the "Oath Keepers" trial, which arose from charges against members of the Oath Keepers, an organized militia group that participated in the January 6, 2021 attack on the U.S. Capitol. The Report, prepared for use in support of motions to transfer venue, analyzed potential bias in the District of Columbia jury pool against defendants prosecuted for conduct arising from the January 6, 2021 attack and concluded that "the DC Community is saturated with potential jurors who harbor actual bias" against those defendants.
For a fee of $30,000, plaintiff licensed the Report to the two attorneys who commissioned it, authorizing its use in support of venue transfer motions. In April 2022, the attorneys filed the Report on the public docket in the "Oath Keepers" case in support of a motion to transfer venue.
Defendant Joseph D. McBride and his law firm, McBride Law Firm, PLLC, represented Richard Barnett, a defendant in a separate criminal case also arising from the January 6 Capitol attack. In September 2022, defendants obtained a copy of the Report, without plaintiff's authorization and without paying a licensing fee, and filed it in its entirety in United States v. Barnett, No. 1:21-cr-00038, as an exhibit in support of a motion to transfer venue….
Olson sued for copyright infringement, and the court denied a motion to dismiss. The court held that plaintiff had plausibly alleged that defendant's use was presumptively infringing:
Randy Barnett and I recently finished maxing out (to use the lingo of the day) the Separation of Powers chapter for the Fifth Edition of our casebook. We went back-and-forth about whether it was even necessary to keep Morrison v. Olson. Ultimately we decided to, in large part, because Chief Justice Rehnquist explains the line of precedents from Myers to Humphrey's Executor. Moreover, Justice Scalia's iconic dissent would later be vindicated in Slaughter. Students should not forget how we got to the present moment.
Still, we recognized that very little of Morrison survived. The Independent Counsel statute, as well as the special prosecutor regulations, barely survived Trump v. United States, and are dead after Slaughter. But one facet of Morrison remains: can federal judges appoint prosecutors who are not subject to presidential removal. Now, there is a case to overrule that last glimmer of Morrison.
The U.S. District Court for the Western District of Washington appointed Roger Rogoff as United States Attorney. Trump promptly fired Rogoff. Now Rogoff has sued Trump, seeking a preliminary injunction to invalidate the "purported removal." Rogoff argues that Trump's firing violates the Appointments Clause, even after. Slaughter.
Slaughter is not to the contrary because it did not address the propriety of removal protections for inferior officers. Before Slaughter, the Supreme Court had long recognized "two exceptions" to the general rule that the President enjoys unbounded removal power: the first authorized Congress to "provide tenure protections to certain inferior officers," and the second to limit removal in "expert agencies led by a group of principal officers." Seila Law, 591 U.S. at 204 (emphases omitted). Slaughter eliminated the latter but left the former in place. 2026 WL 1855612 at *15, *18 ("Nor do we determine the fate of officials not before us.").
And I call attention to Footnote 1 of the brief:
U.S. Attorneys are not the only Executive Branch prosecutors the Judiciary appoints. Historically, they have (on application) appointed independent counsel. 28 U.S.C. § 593; Morrison v. Olson, 487 U.S. 654, 676 (1988) ("[W]e do not think it impermissible for Congress Case 2:26-cv-02566 Document 8 Filed 07/21/26 Page 11 of 32 to vest the power to appoint independent counsel in a specially created federal court."). They likewise appoint special prosecutors pursuing criminal contempt. See Young v. U.S. ex rel. Vuitton et Fils S.A., 481 U.S. 787, 793 (1987) ("[I]t is long settled that courts possess inherent authority to initiate contempt proceedings for disobedience to their orders, authority which necessarily encompasses the ability to appoint a private attorney to prosecute the contempt."); see also United States v. Donziger, 38 F.4th 290, 294 (2d Cir. 2022) (appointment of special counsel by court did not violate separation of powers).
Yeah, about that. Morrison is not long for this world. The Second Circuit's decision in Donziger was wrong. Hey, if Justice Gorsuch and Steve Vladeck agree, they can't both be wrong! And I dare Judge Boasberg to appoint a private attorney to prosecute DOJ officials. He would deserve that benchslap.
Federal judges should not be allowed to make appointments to the executive branch--especially United States attorneys who cannot be fired by the President. Moreover, I am not at all convinced U.S. Attorneys are actually "inferior" officers. Lower courts have reached this holding with very conclusory logic, but the Supreme Court has never settled the issue.
If there is a conflict between the executive branch and congress, it should not fall to the judicial branch to resolve the matter.
I would expect the judges of this District Court to recuse, so some other well-meaning Washington judge will rule against Trump. And the Ninth Circuit will issue a decision that should be reversed.
Last year, I recorded a 41-minute talk for incoming law students on how to approach the first month of law school. It's targeted at students who don't know much about how law school works, with the hope that they can start school more informed about the weird ways of studying law. You can watch it here:
For years, Justice Kagan was overtly critical of the Supreme Court's approach to emergency applications. In written dissents and public speeches, Kagan fed into the nefarious "shadow docket" narrative. She may as well have blurbed Steve Vladeck's book. Yet, I've noticed over the past year or so that rhetoric from Justice Kagan has faded. Indeed, Kagan testified that she would rather "not now . . . call it the shadow docket . . . because we have done . . . a better job . . . where appropriate [of] explaining ourselves, at least to a moderate degree." Kagan added, "we have gotten more experienced in these constant requests that are coming to us about requests for emergency relief . . . and we have issued opinions, and sometimes majority and dissenting opinions accordingly."
Kagan was almost certainly referring to Trump v. Cook, which might be the slowest emergency docket case of all time. Remember, President Trump purported to remove Governor Lisa Cook from the Federal Reserve on August 25, 2025. Twelve days later the District Court granted a preliminary injunction. Four days after that, the D.C. Circuit denied the government's motion to stay. The case reached the Supreme Court on September 18, 2025. It would take the Court more than 280 days to decide the case in its "interim" posture, with more than 80 pages of majority, concurring, and dissenting opinions.
Justice Alito's dissent laid out the glacial chronology.
The President then applied for a stay from this Court. When that application arrived here, this litigation was just 21 days old. There had been only two rounds of abbreviated briefing below and no meaningful development of a factual record. Indeed, the record does not even contain copies of Cook's allegedly fraudulent mortgage applications. Of course, parties may appropriately seek (and courts may appropriately grant) stays early in a litigation. No court, including this Court, should sit on its hands when interim relief is appropriate. But this does not mean that the Court must reach out to opine on each issue that could conceivably arise in a case's future. Here, the incipiency of this case and the complexity of the issues that it presents counseled in favor of a light touch by this Court, regardless of whether we granted or denied the application. To that end, the Court should have resolved the President's application shortly after we received it. And in doing so, we should have focused on the few issues that the courts addressed below. If a majority had desired, we could have issued a statement explaining our decision. That is exactly how we have handled nearly all our stay applications in recent years.
Had the Court denied the stay in September or October of 2025, the lower courts could have proceeded to decide the case on the merits, and presented the Supreme Court with a regular appeal. But the Court (and by Court, I mean the Chief Justice) chose a different path. Alito explains further:
Although the panel performed admirably given the four days that it had to decide the President's stay motion, nobody can doubt that the panel would have produced more comprehensive opinions if it had even a fraction of the 280-plus days that this Court has spent with the case. Either way, this Court could have reentered the fray when we inevitably granted certiorari. Instead, the Court departed from its normal practice and "deferred" ruling on this application, bringing proceedings in the lower courts to a 9-month standstill. 606 U. S. 1062 (2025). We then ordered the parties to submit more briefing than they had filed at any other point in this litigation. In January, we held oral argument, marking just the second in-court proceeding in this entire suit. The Court now issues a full-length opinion that purports to resolve many complicated and novel legal questions on an underdeveloped record while ignoring lurking jurisdictional issues."Either out of humility or out of self-respect (one or the other), the Court should decline to answer" these "incredibly difficult" questions in this case's current posture. PGA TOUR, Inc. v. Martin, 532 U. S. 661, 700 (2001) (Scalia, J., dissenting).
Moreover, the Court reached out to decide several significant constitutional questions that were not necessary to decide. Is the Federal Reserve's so-called "independence" consistent with the separation of powers? Do the federal courts even have jurisdiction to review the President's termination of a Governor? Did Cook even have a "cause of action" to challenge her removal? Justice Barrett raises these, and other questions in her concurrence. But the Supreme Court was content to decide a landmark case on its "emergency" docket, leapfrogging over all prudence. This unusual posture was sure to placate Justice Kagan and the Court's critics, but is at odds with the Chief's self-professed modus operandi.
Indeed, something seems to have happened behind-the-scenes in this case. In most cases, the Chief Justice barely acknowledges the dissent, and offers sparse responses, if that. In Barbara, the dissents were more than five times as long as the majority. Roberts didn't care to respond because he had five votes.
From Evans v. Robertson, decided today by Judge Judith Levy (E.D. Mich.) (for the original on the Magistrate Judge's September 2025 post decision in this case, see here):
Plaintiff and Defendant's objections will be stricken because they contain factitious citations.
The litigants in this case have been repeatedly warned that factitious citations will not be tolerated by the Court. Magistrate Judge Elizabeth A. Stafford ordered Plaintiff and Defendant to "include a written representation that [they have] personally checked each legal citation and each citation is accurate and stands for its asserted proposition" and warned that a failure to do so may result in sanctions. Despite Judge Stafford's order and this Court's repeated warnings, both Plaintiff and Defendant have violated the Court's express requirements numerous times.
On November 20, 2025, the Court imposed sanctions on both Plaintiff and Defendant for their repeated use of factitious citations and have stricken the parties' filings when they contain factitious citations. The parties have been warned that additional sanctions may be imposed if future filings contain factitious citations….
Plaintiff's objections contain factitious citations. Plaintiff declares in her objection that she "reviewed the citations and representations contained herein and that, to the best of [her] knowledge, information, and belief formed after reasonable inquiry, they are accurate and supported by the record." However, in her objections, Plaintiff argues,
In Timbs v. Indiana (2019), the Supreme Court unanimously ruled that the Excessive Fines Clause of the Eighth Amendment is incorporated against state governments. It also ruled that asset forfeitures - confiscation of property that may have been used to facilitate commission of a crime - qualify as fines. But it gave little guidance on what exactly qualifies as "excessive." This lack of clarity stimulated all sorts of uncertainty and disagreement in lower state and federal courts.
Recently, the Court decided to hear the case of Jouppi v. Alaska. Jouppi is an Alaska "bush pilot," flying passengers to remote areas. In 2012, Alaska authorities caught him transporting a passenger who had 72 cans of beer with her, to a "dry" village where importation of alcohol is banned. State law criminalizes transportation of alcoholic beverages there.
For this crime, Jouppi was fined $1500 and sentenced to three days in jail. But the state then used its asset forfeiture law to confiscate Jouppi's plane (worth about $95,000). There is some dispute about whether Jouppi was aware of all 72 cans, or just the one six-pack that was visible. But the Alaska Supreme Court concluded this issue is irrelevant, because courts must heavily defer to the legislature on the issue of what qualifies as a serious enough offense to justify massive forfeitures, and "[i]t is clear to us that the legislature determined that the harm from even a six-pack of beer knowingly imported into a dry village is severe enough to warrant forfeiture of an aircraft."
I think it is obvious that even the illegal transportation of 72 cans of beer (let alone just six) is nowhere near severe enough an offense to justify forfeiture of a plane worth $95,000. In a previous case, the Supreme indicated that a fine is "excessive" if it is "grossly disproportionate" to the "gravity" of the underlying offense. That's far from a clear standard, and the Court should flesh it out in greater detail. But if the Jouppi forfeiture is not "grossly disproportionate," I do not know what is.
In addition, the Alaska Supreme Court was wrong to rule that courts must give the legislature broad deference on such issues. That defeats the whole point of the Excessive Fines Clause, which is to limit legislative power. By this logic, the legislature could exempt almost any fine from invalidation so long as it claims the underlying offense is really, really bad. You could, for example, justify the forfeiture of a $1 million house because the owner used it to store an illegally purchased cigarette. Indeed, that fact pattern isn't so much worse than what happened in Jouppi!
The Alaska Supreme Court's reasoning is another example of the tendency of many jurists to defer to the legislature on property rights issues in a way they would never accept when it comes to other constitutional rights. The Kelo "public use" takings case is a particularly notorious example of this problem.
There are other problems with the Alaska Supreme Court's decision. Its reasoning about the severity of the crime here is not premised on any notion that illegal transportation of alcohol is itself a grave offense, but that it indirectly contributes to excessive drinking, which in turns leads to crime and social pathology in rural parts of Alaska, where (as the lower court found) law enforcement has limited resources to deal with it.
This whole chain of reasoning is extremely dubious. The experience of the Prohibition era showed that prohibiting alcohol sales is a poor strategy for combating crime, and indeed actually exacerbates it, by facilitating the rise of organized crime and its associated violence. And if the problem is that Alaska law enforcement has too few resources to deal with crimes arising from alcohol abuse, then it shouldn't be wasting those scarce resources on the less effective tactic of enforcing prohibition! Instead, have more cops on the beat actually targeting violent crime.
These last few points might be seen as policy considerations, normally left to the legislature. But courts should scrutinize them if - as in this case - they are part of the government's rationale for arguing that the fine here is not "excessive." In that event, the accuracy of the state's claims is relevant to the court's resolution of the constitutional issue before it.
Jouppi is represented by the Institute for Justice, the libertarian-leaning public interest law firm that also successfully litigated the Timbs case. I am guardedly optimistic they will prevail here, too. If we are lucky, the Court might in the process establish a clearer and more restrictive standard for what qualifies as an "excessive" fine. But, all too often, these kinds of predictions aren't worth much more than what you're not paying for them!
NOTE: As indicated above, Jouppi is represented by the Institute for Justice. I have longstanding connections with IJ, and for which I have done pro bono work on other property rights cases. I did not, however, have any involvement in this case. IJ has an informative website devoted to the Jouppi case here.
I apologize for the light blogging of late. Well, light for me at least. Randy and I just submitted the final chapter of the Fifth Edition of our casebook to the publisher. It took us nearly two weeks to figure out how to present Trump v. Barbara. I think we figured out a really innovative and accessible way of presenting the different issues, so students can easily contrast the majority and dissenting opinions. We hope to share an excerpt once the page proofs are ready.
I still have not finished reading all of the opinions from the end of the term. Plus, I have a host of half-finished posts about Slaughter, Cook, Barbara, the TPS case, West Virginia v. B.P.J., and more. I hope to get those done over the next few weeks. (I could not resist dumping on the "Aloha spirit" breaking news.)
Now, as I slowly climb out of the backlog, let me highlight something that I was surprised didn't get much attention: Justice Kagan and Barrett's sartorial choices.
Did no one else notice that Justice Kagan was wearing a bright red suit while Justice Barrett was wearing a dark blue suit? You see, the colors are reversed! I suppose this could have been coincidental. I found a few photos of Kagan wearing red in the past. Still, I'd like to think this was a subliminal attempt at bipartisanship.
I agree with David Lat and others that Kagan and Barrett are the perfect spokespersons for the Court at this moment. I wrote an essay that should be out this summer about why the Justices should hold regular press conferences to help rehabilitate the public's image. Kagan and Barrett should be the first ones to the mic.
This episode features a conversation with Greg Greubel, a senior attorney at the Foundation for Individual Rights and Expression (FIRE) and one of the lead attorneys who argued the case against Florida's Stop W.O.K.E. Act restrictions of faculty speech in public university classrooms. The 11th Circuit just handed down an opinion in that case, Pernell v. Florida Board of Governors. It is one of the most consequential academic freedom cases of recent years.
In the new podcast episode, we discuss the case and its background, break down the First Amendment law surrounding academic freedom issues at public universities, and consider some of the implications of this decision for future cases, including ongoing litigation arising out of "divisive concepts" policies in Alabama and Texas. Give it a listen here.
As someone whose views once fit the description of the Oslo-and-beyond era Israeli security establishment view, I found this analysis, from Nahum Kaplan, compelling:
For much of the period after the 1993 Oslo Accords, a powerful current within Israel's political and security establishment rested upon several interconnected propositions.
The lists includes: that Palestinian institutions could gradually become responsible governing partners, economic prosperity would reduce enthusiasm for violence, technological superiority and superior intelligence could contain threats that could not be eliminated, limited military operations could reduce enemy capabilities while avoiding the political cost of decisive confrontation, and international diplomacy, though frequently frustrating, remained indispensable to long-term security.
None of these ideas was entirely absurd. That is precisely why they were so influential….
Besides breaching the border, Hamas breached an entire conceptual architecture. The massacres, hostage-taking, and temporary collapse of Israel's local defences shattered public faith in the proposition that a genocidal movement could be indefinitely managed through surveillance, economic concessions, and occasional bombardment. A sophisticated intelligence apparatus had produced an unsophisticated conclusion: The enemy did not really mean what it repeatedly said.
This is one of the West's more persistent strategic pathologies. It interprets ideological conviction as theatrical language, then expresses astonishment when zealots proceed to act upon it. Western governments frequently assume that everybody ultimately wants what Western officials want: stability, prosperity, recognition, improved trade, and a favourable paragraph in the communiqué.
Some people want victory, domination, and to kill you for who you are. The inability to comprehend this does not make one humane. It makes one vulnerable.
A public school in Eastern Kentucky issued a series of no trespass bans to Elizabeth Jones, a parent, in response to some of her posts on Facebook. As explained below, these posts were mean and demeaning. Naturally, several parents complained to the school district. The school district responded by banning Jones from all district property….
The First Amendment prohibits government officials from subjecting an individual to retaliatory actions for engaging in protected speech, and this speech is protected. For these reasons, the Court GRANTS Jones's motion for a preliminary injunction….
Plaintiff Elizabeth Jones … is a single mother of two minor children who attend school in the Jenkins Independent School District. She regularly attends school-sponsored activities, including athletics events, and donated her time and money to support her children's extracurricular activities.
Jones is also the owner and CEO of Hillbilly Crime, LLC. According to Hillbilly Crime's YouTube profile, Jones is a "Mom and self-proclaimed 'Educated Hillbilly'" who discusses "anything & everything True Crime, follow[s] local criminal trials, and give[s] my personal and best 'Hillbilly' commentary on important issues and current events." Jones monetizes her content through this YouTube channel with over 26,000 subscribers and also through two Facebook pages with over 26,000 followers and 38,000 followers, respectively. In addition to her videos and posts, Jones operates an online store featuring Hillbilly Crime merchandise and also offers supporters the ability to purchase subscription tiers ranging from $2.99 to $24.99 a month to support her reporting.
Jones is a prolific user of Facebook, publishing multiple posts per day on both her "Elizabeth Jones" and "Hillbilly Crime" accounts. The accounts largely overlap in terms of content. When Jones posts on her "Elizabeth Jones" account, she often leaves a comment encouraging her supporters to subscribe and support her work with links to purchase the tiered subscription options. In addition to posting about local crime, Jones also posts about school athletics from her main account.
The Defendants allege that Jones relies on controversy to drive engagement with her channels. On November 26, 2025, Jones posted a comment where she poked fun at a middle school child's appearance and accused an opposing basketball coach of making derogatory gestures to fans and parents. She then responded aggressively to another Facebook user who defended the child.
On December 13, 2025, she made another post criticizing a child's effort in a basketball game and encouraged others to comment on her post. Both posts contained photographs of the minor children at issue, although the parties' attachments did not include the photos as part of their exhibits submitted to the Court. Jones does not contest that the posts contained photographs, so the Court assumes that the posts in fact included photos of the minor children.
Today, Donald Trump announced plans to impose 50% tariffs on a wide range of Canadian imports to the United States:
President Trump is imposing 50% tariffs on a range of Canadian goods, from hockey equipment to alcoholic beverages, escalating the trade dispute between the two countries.
The new tariffs — laid out in a seriesof proclamationssigned by Mr. Trump on Monday — are set to take effect on Aug. 19. The White House accused Canada of "unreasonable, unequal, and discriminatory actions" by imposing tariffs or import restrictions on certain American goods, some of which began after Mr. Trump's initial round of tariffs on Canada last year.
In retaliation for last year's Canadian tariffs on certain U.S. auto imports, the Trump administration slapped tariffs on certain Canadian electronics, hockey equipment, honey, flower bulbs, down feathers, plywood, cowhides, jewelry and other goods. The White House also imposed tariffs on Canadian beer, wine, liquor and milk, in response to Canadian boycotts of U.S. alcohol in response to last year's tariffs and longstanding Canadian quotas on dairy imports.
Goods that flow across the border under the U.S.-Mexico-Canada Agreement, or USMCA — a trade deal inked during Mr. Trump's first term — will not be exempt from the new tariffs, a senior administration official told reporters Monday.
The new tariffs are based on Section 338 of the notorious 1930 Smoot-Hawley tariff legislation, which severely exacerbated the Great Depression. As Philip Zelikow of the conservative Hoover Institution explained in a guest post here at the VC blog, last year, Section 338 was long-ago superseded by new legislation enacted in 1962 and 1974, and is therefore defunct. For that reason, it has not been used since at least the 1940s.
Georgetown University trade policy scholar Peter Harrell summarizes additional useful points about the new tariffs on Twitter, including some additional legal objections to them. Should the new tariffs come into effect, there will likely be legal challenges, and those challenges will richly deserve to prevail.
I would add that this is just the latest of a series of efforts by Trump to usurp congressional tariff authority and impose harmful and dangerous trade restrictions that damage the US economy and poison relations with our allies and trading partners, of which Canada is one of the most important. That includes the International Emergency Economic Powers Act (IEEPA) tariffs struck down by the Supreme Court in February, in a case I helped bring, the Section 122 tariffs invalidated by the US Court of International Trade, his massive planned Section 301 tariffs, and - most recently - his threat to impose tariffs on Canada in response to wildfires there. Courts should continue to reject these dangerous power grabs and affronts to the rule of law.
I may well have more to say about these new tariffs later, especially if they end up getting implemented, as currently planned.
"Democratic socialists" are a growing movement on the political left. And many of them are also prison abolitionists. But there is a deep contradiction between their socialism and their abolitionism. Socialism requires making numerous economic activities illegal, and those laws have to be enforced by some system of punishment. As the history of actual socialist states shows, serious attempts to implement socialism lead to vastly greater incarceration (and other punishment), not less. There are a number of possible ways to try to escape this contradiction. But none of them work. The tension is relevant not only to full prison abolition, but also to any plan to significantly reduce incarceration and punishment without eliminating it completely.
What is Socialism?
Before going into detail, it is worth emphasizing that "socialism" here means government control of all or most of the economy, not simply an increase in welfare spending or a marginal increase in certain discrete types of regulation. This is isn't just my idiosyncratic definition. It's what actual leading socialists say they want. For example, the platform of the Democratic Socialists of America (DSA), America's most prominent socialist organization, states that they seek to establish a system under which "[f]ood, education, energy, medicine, and transportation aren't for-profit businesses; they are common goods." That requires a complete government takeover of these massive parts of the economy. The DSA and other socialists also seek to massively extend government control even over those parts of the economy that they might not socialize outright. For example, they advocate extensive rent control, a massive increase in employment regulation, and so on. Elsewhere, I have described how - in combination - these demands would amount to socialization of the vast bulk of the economy. It is not simply a matter of making the US more like Denmark or Sweden, countries with large welfare states, but also generally market-based economies (in some respects more free market than the US).
Socialist prison abolition isn't just a strawman either. For example, the DSA has an "Abolition Working Group," which, among other things, advocates "Freedom for all incarcerated people." Prominent socialist candidates for political office also have a history of advocating prison abolition.
The Contradiction
There is a blatant but generally ignored contradiction between socialism and prison abolitionism. Socialism requires making a wide range of economic transactions illegal, and those laws have to be enforced by some system of punishment. If, like the DSA, you want to ensure that "[f]ood, education, energy, medicine, and transportation aren't for-profit businesses," but instead make them "common goods," you will have to make it illegal to provide those goods and services for profit, and punish people who violate the relevant laws.
Historically, attempts to do this created vast black markets, especially since government control of these and other industries routinely resulted in shortages and low quality, caused by knowledge problems and poor incentives. I was born in the Soviet Union. Almost all my adult relatives and their friends acquaintances were involved in illegal black market transactions of various kinds. Often, it was the only way to get even minimally decent-quality goods and services, including food, medicine, and transportation. For example, my mother's two cousins operated a black-market auto repair business, which prospered because the official state-owned auto repair shops were predictably terrible and unreliable. If they had gotten caught, they might well have (you guessed it!) ended up in prison. Others illegally produced and sold food, acquired and sold black-market medicine and clothing, and so on.
Socialist governments sought to suppress these activities, usually through massive coercion. If they did not, the extent of black market activity would have been even greater, and socialism would have been even further undermined. Repression and punishment didn't completely eliminate black markets. But it did enable the state to retain control over the "commanding heights" of the economy, and at least somewhat reduce the amount of illicit economic activity overall.
Similar logic applies to severe economic regulations that fall short of complete socialization. For example, if like many socialists, you want to impose severe rent control or very high minimum wages, you will have to punish people who dare rent out housing at higher rates or hire workers at lower wages. And such black market activities are predictable, because high minimum wages price numerous lower-skilled workers out of the market (thereby increasing unemployment) and rent control predictably creates housing shortages.
The bottom line is this: socialism requires making a lot of things illegal, and enforcing that requires punishment. That's why actual socialist states have imprisoned (and often killed) large numbers of people as a natural byproduct of their economic policies. The Soviet Union, China, Cuba, and others routinely imprisoned or killed large numbers of people who engaged in illegal "capitalist" transactions. Consider, for instance, the fate of the "Kulaks" and their counterparts in China, Cuba, and elsewhere.
No Way Out of the Dilemma
There are several theoretically possible ways to escape this contradiction. But none of them actually work - at least not in ways that modern Western socialists are likely to find morally acceptable.
Many late nineteenth and early twentieth century socialists argued that a socialist society wouldn't need much of a carceral apparatus, if any, because socialism would lead to a transformation in human nature. "New Socialist Man" would obey the law without the need for coercion, because he would no longer be violent, selfish, and greedy, as people are under capitalism.
Sadly, though predictably, this never worked. In actuality, "socialist man" was just as violent and greedy as the capitalist version, often even more so. Ask almost anyone who has ever actually lived in a socialist state.
And the same is true of "socialist woman." Women, on average, commit fewer crimes than men. But like, men they don't commit less under socialism. While there is no good data on the subject (in part because socialist states have historically banned transgenderism), the same is likely true of transgender people. Today, most socialists no longer promise a fundamental transformation of human nature. And for good reason!
A second possible solution is to rely on non-prison punishments, such as fines and community service. But what happens when people refuse to pay the fines or do the service? Then, you have to enforce the penalty with the threat of prison, or some other more severe punishment. Ultimately, there can be no effective enforcement system that isn't backed by violent coercion. As liberal Yale Law School Prof. Stephen Carter puts it, people should "never support a law they are not willing to kill to enforce."
That still leaves open the possibility of using non-prison punishments that are as much or more severe than imprisonment. Pre-modern societies had few prisons, but made extensive use of corporal punishment and the death penalty. We could potentially bring back flogging, and the rack, and greatly increase the use of the death penalty. That would show those greedy capitalists! As an extra bonus, corporal punishment and the death penalty save money on incarceration costs. You don't have to pay room and board for people you flog or execute. Socialist dictators like Lenin, Stalin, Mao, Castro, and Pol Pot, have in fact made extensive use of mass executions.
Obviously, however, modern socialists who want to abolish prisons are unlikely to support replacing them with even more cruel forms of punishment. Or so I hope!
Finally, there is the option of having prisons, but calling them something else. The USSR, China, and other socialist states had a long history of establishing mass incarceration facilities that, at least in theory, were distinct from ordinary prisons, Gulags, "reeducation camps," and so on. Currently, the Chinese has state has forcibly detained over 1 million members of the Uyghur minority. But these detention centers aren't called prisons, but "vocational education and training centers." So that makes it OK!
Obviously, conditions in these facilities are just as bad as those in conventional prisons, and often much worse. Serious prison abolitionists should not take refuge in this kind of ridiculous hypocrisy.
How to Actually Reduce Incarceration
Prison abolitionists - not all of them socialists - aren't entirely wrong about the need to cut back on incarceration. They're just wrong about how to do it. And, at least so long as we don't have a fundamental transformation in human nature, they are wrong about how far it can go.
Prison abolitionists are right to point out that imprisonment is a severe infringement on liberty, and that conditions in prison are often terrible. Ironically, that's true precisely because of the kinds of economic incentives socialists otherwise tend to ignore.
For-profit businesses have strong incentives to keep quality up and prices down because, otherwise, consumers can reject their products in favor of competitors. A business that loses out to competitors will have reduced profits, and often has to close. By contrast, prison inmates have little or no choice about where to serve their sentences, and administrators and guards are not going to lose profit or suffer reductions in pay if the inmates aren't satisfied with their "services."
Moreover, prisons contain a lot of violent and dangerous people. And guards and administrators often have only weak incentives to keep them from preying on fellow inmates. Often, the guards themselves might be safer if they just look the other way! Thus, we often get awful prison conditions, and widespread inmate-on-inmate abuses, including such things as ubiquitous sexual assault.
In theory, voters can monitor prison conditions and vote out politicians who allow abuses to persist. But, in practice, most voters are "rationally ignorant" about public policy and have little sympathy for prisoners even when they do hear about the bad conditions. Thus, bad prison conditions are a very difficult-to-fix structural problem.
For those reasons, it is important to reduce the extent of imprisonment. And the way to do that is to reduce the number of activities that are illegal, not increase them! One of the few issues the DSA platform gets right is their call to abolish ICE. I agree, and have long advocated the same idea, myself. But, unless we just want to replace ICE with another agency likely to engage in similar abuses, the plan can only we work if we either legalize much currently illegal immigration, or at least cut back on mass deportation (thereby necessarily reducing immigration enforcement). If we want to keep out and deport large numbers of immigrants, there is no way to do that without an extensive system of detention and expulsion that is prone to grave abuses.
Socialist prison abolitionists recognize this truth when it comes to immigration enforcement. But it also applies to their own proposals to make a vast range of "capitalist" economic activity illegal. In both cases, we end up with large black markets that require massive coercion to even partially suppress.
Ultimately, imprisonment should be reserved for those activities that are so bad that perpetrators deserve to be incarcerated under bad conditions, if that is the only way to achieve retribution and deterrence. Such crimes as murder, rape, assault, theft, and so on, qualify. Illegal migration does not. And the same goes for virtually all the "capitalist acts between consenting adults" (as Robert Nozick famously called them) that socialists want to ban. I would add that this problem is an additional reason to get rid of the War on Drugs, which accounts for much our current mass incarceration. About 43% of federal prison inmates and 20% of total inmates (including state and local) are incarcerated for nonviolent drug offenses.
If we want to cut back on imprisonment, abolishing - or at least severely cutting back on - immigration restrictions and the War on Drugs would be a great way to start. Socialism, on the other hand, is likely to make the problem worse, by necessitating a far more extensive carceral state than we have already.
We cannot completely abolish imprisonment and other similar punishment. At least not so long as there are at least somewhat common human activities that we want to suppress. But we can greatly reduce its use.
In fairness, the statist economic policies advocated by right-wing nationalists have many of the same flaws, and I have written about that, at length. But the flaws of the nationalists don't justify those of the socialists, and vice versa. Indeed, socialists would do well to keep in mind that they coercive apparatus they establish to enforce their economic policies could, at some point, fall into the hands of their ideological adversaries. Even if they trust their ideological comrades to exercise that kind of power, do they have similar confidence in the likes of Donald Trump?
The issues addressed here do not definitively resolve the issue of the appropriate role of government in the economy. If the benefits of a given interventionist policy are large enough and cannot be achieved in any other way, they could potentially justify even a substantial increase in imprisonment and other coercion. But it is essential to keep in mind the tradeoff between making more activities illegal and cutting back on the carceral state. That's especially true when making an activity illegal predictably incentivizes the creation of a large black market. You can't have socialism without a massive apparatus of state coercion. And that, at the very least, strengthens the case against it.
UPDATE: I originally accidentally linked the 2025-26 DSA platform, rather than the more recent version, which contains the language I quoted. I apologize for this oversight, which has since been corrected.
I 
