The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
If you're a libertarian like me, elections in the US two-party system often come down to choosing the lesser of two evils. This one is no exception. Both major-party candidates have serious flaws. But Democratic candidate Joe Biden is far preferable to Donald Trump. And that's true based entirely on ideology and policy—without having to consider Trump's corruption, his tweets, or his awful personality. Judged from the standpoint of promoting liberty, justice, property rights, and human welfare, the choice is clear. Trump has the edge on a few issues, but they are greatly outweighed by the ones where he doesn't.
Before delving into the comparison between the two options, I should note I am not claiming citizens have a moral duty to vote for Biden, or indeed to vote at all. To the contrary, I deny there is any duty to vote, and therefore have no quarrel with anyone who chooses not to do so because they prefer to devote their time and effort to other activities, and especially if they choose to abstain because they lack the knowledge to make a well-informed choice.
But those who do choose to vote have an obligation to make at least a reasonably informed choice. And, at least in most cases, they should vote for the least-bad alternative among those with a realistic chance to win. I defend the morality and rationality of lesser-evil voting in some detail here.
To briefly summarize, Biden has significant advantages over Trump when it comes to immigration, trade, property rights, government spending, and maintaining relationships with liberal democratic allies. These readily outweigh Trump's edges on judicial appointments and certain types of taxation and regulation. Though I won't cover it here, Trump's undermining of liberal democratic norms is also a menace, even if it hasn't yet led to many concrete policy actions. I explained why in a 2018 post.
This piece comes late in the election process; I admit I would have done better to write it sooner (though I did make similar points in public debates about the election here and here). But many millions of people still haven't voted. And I suspect that may include a disproportionate percentage of undecided voters. For those who have already voted, I hope this work might still have value in terms of understanding where the two major parties stand from a libertarian perspective.
Where Biden is Better
If there's one area where there's a truly enormous difference between the two candidates, it's on immigration. Trump has exploited the coronavirus crisis to make the US more closed to immigration than at any other time in our history. His most influential immigration policy adviser, Stephen Miller, has made clear the administration plans to continue these restrictions indefinitely. Moreover, Miller has a stack of still more onerous immigration restrictions he intends to push through if Trump is reelected. Even before the current crisis, Trump massively slashed refugee admissions to a mere 18,000 per year (down from about 110,000 under Barack Obama), imposed cruel and bigoted travel bans, and imposed all sorts of barriers to legal immigration. His administration has even used Kafkaesque bureaucratic tricks like rejecting visa applications if any line is left blank (such as a line for a middle name left empty by a person who doesn't have one).
The costs to human liberty here are enormous. Trump's expanded immigration restrictions forcibly consign hundreds of thousands of people to lives of poverty and oppression, simply because they made the mistake of being born to the wrong parents or in the wrong place. They also impose huge economic costs on both immigrants and natives. Immigrants make major contributions to American economic growth and innovation. The scale of economic harm caused by the administration's immigration restrictions greatly outweighed any possible benefit from its deregulatory actions elsewhere—even before the former was ratcheted up during the pandemic.
Moreover, immigration restrictions severely constrain the liberty of natives as well as immigrants. Native victims include Americans who seek to hire, work with, and otherwise interact with immigrants, those whom Trump's travel bans and other restrictions have cut off from their families, and even many citizens detained and deported thanks to the paucity of due process protections in the immigration enforcement system.
Nor can these moves be rationalized by analogizing the US government to the owner of a private house who has a right to keep people out for whatever reason he wants. Such analogies are deeply flawed, and—if taken seriously—would justify draconian restrictions on natives' liberty, no less than that of immigrants. No libertarian—or any kind of liberal—should accept the dangerous idea that the state is entitled to such sweeping power.
Biden is far from perfect on immigration issues. But he plans to reverse pretty much all of Trump's new immigration restrictions, plus promote further liberalization, such as increasing the refugee cap to 125,000. The latter move alone will save over 100,000 people per year from poverty, oppression, and sometimes death. Freeing over 100,000 per year from a lifetime of oppression is enough to outweigh a multitude of sins elsewhere.
Moreover, virtually all of Trump's immigration actions are the product of unilateral executive action. Therefore, Biden could reverse them without getting any new legislation through Congress. And, obviously, the odds of immigration liberalization getting through Congress are clearly higher if Biden wins than if Trump is reelected. In the latter case, there would be virtually chance at all.
What is true of immigration is also true of trade. On this quintessential libertarian issue, Trump is the worst president of modern times. In addition to his trade war with China, Trump has also picked trade wars with numerous US allies, including Canada, Mexico, the European Union, and South Korea, among others. The costs include some $57 billion in annual added expenses for American consumers, and massively reduced the value of American businesses, to the tune of hundreds of billions. And, once again, these costs greatly outweigh any plausible estimate of benefits from Trumpian deregulation elsewhere, which even the administration itself estimates at only about $50 billion for Trump's entire term (thus, about $12.5 billion per year).
Biden's trade policies are far from ideal. It is very possible he would continue many of the tariffs on China. and promote wasteful "Buy American" policies for government agencies. But he would likely at least drop the trade wars with US allies. That would be a major gain. Biden might also reverse Trump's decision to drop out of the Trans-Pacific Partnership (TPP) trade agreement, which would greatly liberalize trade between the US and numerous nations in the Asia-Pacific region.
Like his immigration restrictions, Trump's trade wars are almost entirely the result of executive action. Thus, Biden could very easily undo them—though joining TPP would require congressional ratification.
It was in some ways predictable that the Republicans might become an anti-immigration party, and perhaps even that they would turn against free trade. But, a decade ago, I would never have expected them to become worse than the Democrats on property rights. Yet, under Trump, that's exactly what they have done.
Trump's proposed border wall will, if fully built, require using eminent domain to take property from many thousands of people in the border area. It would be the largest government taking of private property in decades. Meanwhile, Trump's Justice Department has abolished Obama-era limits on asset forfeiture, thereby facilitating the large-scale legalized plunder of property from people who in many cases were never even charged with any crimes, much less convicted.
Perhaps the biggest property rights issue of our time is exclusionary zoning, which bars many thousands of property owners from building new housing on their land, and artificially inflates housing prices, thereby cutting millions of people off from housing and job market opportunities. Trump has embraced full-blown NIMBYism, denouncing efforts to loosen zoning restrictions at the state and local level, and promising to use federal power to oppose them.
The Trump administration has also adopted anti-property rights positions in a number of important court cases, most notably claiming that the government has the right to deliberately flood thousands of homes during a hurricane without paying any compensation. As far as Trump is concerned, if the feds flood your house "only" once, they owe you nothing.
Biden and the Democrats are far from ideal on property rights issues. But Biden would terminate the awful wall-building project. He is also likely to restore Obama-era constraints on asset forfeiture (though it would be preferable to go further than that). On zoning, liberal Democrats have pushed through valuable reforms in several states and localities, with more potentially on the way. Biden would provide some modest federal incentives to facilitate that. At the very least, unlike, Trump he wouldn't actively oppose deregulation in this vital area.
When it comes to government spending and deficits, Trump and congressional Republicans have a truly terrible record. They have enacted gargantuan expansions of spending, resulting in record peacetime deficits—and that was even before the coronavirus crisis. Trump has even openly said he doesn't care about spending and deficits, because he won't be in office anymore by the time the debt chickens come home to roost.
In fairness, however, things could be even worse if Biden is able to push through all the additional new spending he advocates. However, he might have difficulty doing that. We know from much recent history that congressional Republicans only work to constrain federal spending when there is a Democrat in the White House, as they did under Clinton and Obama. If Biden wins the election, there is a high likelihood that the Democrats will have only a very narrow majority in the Senate, or even (less likely) that the GOP will retain control in that chamber. Working with moderate Democratic swing-voters, the GOP can constrain Biden's spending plans, and will have every incentive to do so. Indeed, even the mere prospect of Trump's leaving office has already led Senate Republicans to regain some of their fiscal religion, as they have rejected both Trump's and the Democrats calls for a massive new $2 trillion "stimulus" package.
I don't want to paint a rosy picture here. Regardless of who wins, there are likely to be major spending increases, and an exacerbation of our already severe fiscal crisis. But this will be incrementally better if at least one major party works to limit the damage, perhaps in cooperation with moderates from the other. That is more likely to occur with Biden in the White House than Trump.
Trump's trade wars, questioning of alliances, and other behavior, has also severely damaged relations with most of America's allies, with the notable exceptions of the Israelis and the Gulf State Arabs. America's image in most of the world is now worse than it has been for many years. Trump's support of cruelties like family separation and police brutality has further damaged America's image, and thus undermined our position in the international war of ideas against China, Russia, and other authoritarian regimes. In a variety of ways, Trump has made anti-Americanism great again!
Biden may not be able to fix all of this. But he would at least end most of the trade wars, treat the allies with greater respect, and curb many of the Trumpian policies that most damage America's image. That should matter for libertarians (and liberals of any stripe) because we want liberal ideals to advance around the world, not just in one country. And it is important that brutal authoritarian regimes stop gaining influence at the expense of more liberal ones.
The harm Trump causes goes beyond the details of specific policy issues. Hostility to immigration, protectionism, gargantuan spending, damaging relationships with allies, and even undermining property rights, are all facets of the more general trend towards big-government nationalism in the GOP. If Trump wins reelection, we can expect that trend to solidify and continue. Should Trump's approach succeed politically even in the midst of a dire economic and public health crisis, other Republican politicians (and perhaps even some Democrats) will continue to imitate him. We can expect more of the same from the GOP for years to come.
By contrast, if Trump is defeated and repudiated, there is a real chance the GOP will have to reconsider its approach, and retreat from some of his awful policies. At the very least, that's more likely in the event of a Trump defeat than if he beats the odds and wins.
On the other hand, a defeat for Biden is unlikely to improve the Democratic Party. To the contrary, it would probably give a boost to the more extreme "democratic socialist" faction led by Bernie Sanders, and others, whom Biden defeated in the 2020 primaries. Defeat for Biden would lend credence to their notion that there is no political payoff for moderation, and that the only way to combat Trumpian right-wing populism is the left-wing version of the same.
Where Trump is Better - And Why it's Not Enough
While I think a Biden victory is preferable, overall, there are undoubtedly some areas where Trump is better. The two most significant are economic regulation in areas unrelated to immigration and trade, and judicial appointments.
While, for reasons noted above, his achievements in this area have been overstated, there is no doubt Trump has achieved some useful deregulation in some fields. The best—and severely underappreciated—example is Trump's executive order permitting a wider range of expense compensation for kidney donors, which could save thousands of lives.
By contrast, Biden, if he wins, has a long list of new regulations he would like to enact. Among the worst are a $15 minimum wage (which would destroy thousands of jobs), and a nationwide version of California bill AB 5, which severely restricts "gig economy" employment by forcing Uber, Lyft, and other similar businesses to classify their workers as "employees" rather than independent contractors. Sadly, Trump has said he might support a $15 minimum wage, as well, though he is probably less likely to be serious about it than Biden.
As already noted, Trump's deregulatory accomplishments pale in comparison to the harm he has done in other areas, such as immigration and trade. Even if Biden undoes all of the former, and adds significant further regulatory burdens, it will still be outweighed by his plans to undo Trump's immigration and trade policies. Moreover, the more extreme Biden regulatory policies—including the minimum wage increase and a nationwide AB 5—would require legislation to enact. And it is unlikely that swing-vote Democratic senators like Manchin (West Virginia), Kyrsten Sinema (Arizona) and Hickenlooper (Democratic candidate in Colorado) would support them, given the vast damage they would do to their respective states (which are heavily dependent on sharing industries and—especially in West Virginia's case—low-cost labor). By contrast, Biden could probably undo Trump's horrible immigration and trade policies through executive action alone.
What is true on regulation is also true on taxation. The 2017 tax bill passed by the GOP Congress with Trump's backing includes some useful provisions, such as limiting corporate taxes, restricting the mortgage interest deduction, and constraining deductions for state and local taxes. Biden's tax proposals would only partially reverse these measures, but would move us in the wrong direction, nonetheless. However, this too would have to get through Congress, which might moderate it. And the net negative effect is still much smaller than that of Trump's immigration and trade policies.
As for the more general tax cuts in the 2017 plan (which Biden would repeal for those earning over $400,000 per year), they are—sadly—likely to be negated by irresponsible deficit spending. So long as that continues, if we don't pay more now, that just means we (and our children) will pay more later (along with accumulated interest). Overpending will probably be a serious problem regardless of who wins. But for reasons already noted, it is likely to be even worse if Trump gets reelected.
Finally, there is the issue of judicial appointments. Here, I have to acknowledge Trump has made substantially better appointments than I expected back in 2016. Some have proven outstanding, like Gorsuch on the Supreme Court, and Judge Don Willett on the Fifth Circuit. Most of the others are, at least, no worse than we could expect from a conventional GOP administration. Essentially, Trump has accomplished this by delegating judicial selection to more conventional conservatives, as opposed to seeking judges who reflect his own distinctive nationalist agenda (as I thought he might do, back in 2016).
Conventional GOP judges are by no means flawless, from a libertarian point of view. But with the extremely important exception of immigration-related constitutional cases, they do tend to better than Democratic-appointed judges in terms of both judicial philosophy, and positions on specific issues (e.g.—property rights, federalism, gun rights, campaign finance restrictions, and some others).
If Trump continues in the same vein in a second term, his appointees would likely be better than those Biden is likely to choose. That said, there are several important caveats, that diminish this advantage.
First, conventional conservative jurisprudence tends to be bad at protecting us against abuses of power in the areas of immigration, trade, and executive abuse of civil liberties in wartime and emergency situations—precisely the areas where right-wing nationalists and populists—like Trump!—are most likely to perpetrate evil. If Trump wins and the populist/nationalist ascendancy in the GOP continues, that trend will become worse over time.
Second, while Trump has been content to appoint conventional conservatives to the judiciary so far, that can change over time. Already, his most recent Supreme Court list includes several dangerous big-government nationalists deeply hostile to civil liberties, such as Senators Josh Hawley and Tom Cotton. Recent appointee Amy Coney Barrett is not of the same ilk. But her appointment clearly offers more hope to social conservatives and perhaps nationalists than libertarians.
More generally, over time judicial appointments come to reflect a party's overall ideological priorities. The more big-government nationalism, with an admixture of social conservatism, comes to dominate the GOP, the more that will eventually be reflected in judicial appointments. Even if it doesn't happen under Trump, it is likely to come to fruition under the next nationalist GOP president, who could easily be either Hawley or Cotton! As discussed above, this dangerous development is more likely to be avoided if Trump is defeated and repudiated.
The possibility of court-packing is another factor to consider. If it happens, I think it would be a terrible development, likely to undermine the entire institution of judicial review. The threat should not be ignored. However, Biden's gyrations on the subject suggest he doesn't really want to pursue this option, which he dislikes on principle, and could pose political dangers because of it's unpopularity. Even if he chooses to try, this is another measure that would have trouble getting through a closely divided Senate.
Even a small chance of court-packing should be taken seriously. But it's not enough to outweigh all the evil done by Trump. Not even the best possible Supreme Court justices can do enough good to outweigh the hundreds of thousands of lives blighted by Trump's immigration and trade policies.
I will not try to deal with Biden and Trump's respective approaches to the Covid crisis. Suffice to say that I am not as confident as many Biden supporters that his policies will work better than Trump's. At the same time, they can hardly be worse than that of a president who often tries to deny the problem even exists. Ultimately, the best way to end the crisis is to accelerate the development and deployment of a vaccine. I see no reason to think Biden will be worse on that front than Trump, and some reason to hope he might be better. For example, a less nationalistic and xenophobic administration might be more willing to cooperate with allies on vaccine development and distribution.
We end where we began. The election presents with a choice of evils. But Biden is by far the lesser evil of the two. In some key areas, he could even be a positive good. And, as promised, I have defended that conclusion entirely without reference to Trump's personal behavior, his corruption, or his Tweets. Getting that out of the White House would just yet more icing on cake!