The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Correcting Some Media Misconceptions About Libertarianism, Trade, and Immigration [updated with apology/acknowledgement of error by Elie Mystal]
Media coverage of our tariff case has mostly been fair and accurate. But there are a few examples of unfortunate misconceptions, mainly having to do with libertarianism and its relationship to conservatism.
Since last week's victory in our tariff case before the US Court of International Trade, I have done more media interviews than in any other comparable period in my life. I have spoken to print reporters, TV, radio, podcast interviewers, and more. The interviews included ones with media in seven different countries, and three different languages. I compiled links to some of these interviews and stories based on them here, here, and here. The media frenzy did not happen because I am an important person or a great media personality (I am neither). It's because Trump's trade war impacts millions of people all over the world.
On the whole, this has been a positive experience. Most of the coverage has, in my view, been fair and accurate. In many cases, I have been very impressed by the knowledge and insight of the reporters and interviewers, including some from foreign countries.
But there have been a few cases of serious misconceptions, many of them involving libertarianism, what it is, and why libertarians would challenge a policy adopted by a right-wing administration. And these misconceptions are widespread enough (both in the media and elsewhere) to be worth taking some time to set straight. To briefly summarize: libertarians are not conservatives, no one should be surprised that we support free trade, and our concern about abuses of presidential power is not limited to trade and other narrowly "economic" issues.
Perhaps the most egregious example of media misconceptions on these points was by prominent legal commentator Elie Mystal, in an article for the left-wing Nation [but see below for Mystal's acknowledgement of error]. Mystal agrees with me about Trump's tariffs, but complains that Reason and I don't care about "abducting immigrants and sending them to torture camps":
In the movement conservative publication Reason, law professor Ilya Somin writes: "From the very beginning, I have contended that the virtually limitless nature of the authority claimed by Trump is a key reason why courts must strike down the tariffs.… I am glad to see the CIT judges agreed with our argument on this point!" If only abducting immigrants and sending them to torture camps affected the 401Ks of the people at Reason, we could have even more conservatives who understand that the "virtually limitless nature of the authority claimed by Trump" is indeed a very bad thing.
Mystal evidently has no idea who he's dealing with! I'm the guy who wrote an entire book defending migration rights. Plus many academic articles, and numerous popular press pieces attacking Trump's Alien Enemies Act deportations (which, presumably, is what Mystal is referring to by "abducting immigrants and sending them to torture camps") and other unjust immigration policies. See, e.g., here, here, here, and here. Just yesterday, I filed an amicus brief opposing Trump's use of the AEA. My coauthors and I wrote it on behalf of the Brennan Center, the Cato Institute, legal scholar John Dehn, and myself. Cato, as regular readers know, is a libertarian think tank. The brief was filed after Mystal's article was published. But I have a long history of other amicus briefs defending migration rights, going back to the 2018 travel ban case. Writing in defense of migration rights is one of the two or three things I am most known for.
I am far from alone among libertarians when it comes to immigration issues, including those who write for Reason. For example, check out work of Reason's main immigration writer, Fiona Harrigan, and that of my Cato Institute colleagues, David Bier and Alex Nowrasteh. Libertarian economists (e.g. Bryan Caplan and the late Julian Simon) and political philosophers (e.g. Jason Brennan and Michael Huemer) have been among the leading defenders of migration rights in their respective fields. Not all libertarians support broad migration rights. But, on average, we are far more pro-immigration than most progressives—to say nothing of conservatives.
And if Mystal really thinks Reason is a "movement conservative" publication, he either doesn't understand Reason, doesn't understand "movement conservatism," or both. Immigration is just one of a long list of issues on which libertarians and conservatives diverge, especially in the Trump era, where the conservative movement is increasingly dominated by "national conservatives" who favor extensive government intervention on both economic and social issues. In addition to immigration and trade, examples include the War on Drugs, many civil liberties issues, free speech, and more. For more on differences between libertarians and the Trump-era right, see my article "The Case Against Nationalism" (coauthored with Alex Nowrasteh).
Similar, though less extreme, misconceptions arose in an MSNBC interview in which the interviewer was surprised that a Cato scholar was opposing Trump's tariffs, because, she said, "Cato has been a key defender of largely Republican policies."
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As I tried to explain in response, libertarians and conservative Republicans have a long history of disagreement on many issues. Moreover, the defense of free trade has been a central libertarian priority since the origins of the movement in 18th and 19th century classical liberalism. Libertarians defending free trade is about as surprising as liberals defending Social Security or social conservatives opposing abortion. Like Mystal (though much less egregiously) the interviewer conflates libertarians and conservative Republicans.
I am grateful this other MSNBC segment highlighted my Atlantic article about the CIT tariff ruling:
But they managed to pack three errors into less than a minute of air time: 1) describing me as one of the "conservatives" opposing Trump's tariffs, 2) suggesting I work at the Atlantic (I do not; I just write for them occasionally), and 3) referring to me as a woman.
The last two errors are understandable and ultimately unimportant (many people don't realize "Ilya" is a common Russian male name). But the conflation of libertarians and conservatives matters more. In both tariff-related media coverage and elsewhere, I see it all too often. The three examples note above are far from unique. Journalists, commentators, and others who report on law and public policy issues should learn to avoid this mistake.
UPDATE: After reading this post, Elie Mystal contacted me to apologize, and acknowledge error. He has now amended his article. I much appreciate his honesty and integrity in this matter. Mystal authorized me to reprint the apology in this update. Here it is:
Professor Somin,
I extend to you my deepest apologies for my snide remarks, mischaracterizing your views. I honestly confused you for [Ilya] Shapiro in my head while I was writing. Totally terrible job by me.
It wasn't intentional. As soon as I found out (which was when Google alerted me to your follow up post on Reason), I had my editor strike the line from my article, and update it with a correction.
The phenomenon of #IlyaConfusion is common enough to have its own Twitter hashtag, and I once wrote a post attempting to dispel it. The "other" Ilya—Ilya Shapiro of the Manhattan Institute -is obviously not where I am on immigration, and we have many differences on the subject. But he's not completely indifferent to injustices created by migration restrictions. For example, we once did an amicus brief together challenging Title 42 "public health" expulsions.
I very deeply apologize.
