The Volokh Conspiracy

In this post I am going to explain why Kamala Harris is a far lesser evil than Donald Trump, and therefore, I plan to vote for her. Both candidates have serious flaws. But Trump's record of trying to overthrow constitutional democracy after he lost the 2020 election creates a strong presumption against him. In addition, he is worse on key policy issues, most notably, trade, immigration, federal spending, and maintaining the Western alliance in the face of threats from authoritarian powers.

This outweighs Kamala Harris's significant weaknesses on some other issues, especially because Trump is more likely to be able to implement his worst policies through unilateral executive action, while Harris's worst ideas require hard-to-secure new legislation. Arguments that Trump is superior on deregulation and issues related to the judiciary are greatly overblown, and nowhere near enough to offset his awfulness elsewhere.

It would be foolish to expect this piece to have any meaningful impact on the outcome of the election. I am no Taylor Swift, and my endorsement has little, if any, political value. But I hope readers might find it of value as an exercise in how to assess issues and weigh them against each other.

When it comes to public policy and choosing candidates, my priorities are promoting freedom and human happiness. Thus, I give greatest weight to those issues with the biggest impact on them. People with relatively similar values are likely to find my assessment of greater relevance than those with very different ones.

Elsewhere, I have defended the idea of voting for a lesser evil, which means the least-bad candidate among those with a realistic chance of winning the election. Check out my earlier writings on that subject if you want to know why I'm not going to vote for a third party candidate, even though Libertarian Party nominee Chase Oliver is far superior to both Harris and Trump on most issues (with the important exception of national security policy). The other third party candidates - RFK, Jr. (where he remains on the ballot), Jill Stein, Cornel West, etc. - all both have zero chance of winning and are absolutely terrible on policy.

The Presumption Against Trump

Before getting into policy issues, it is important to emphasize that Trump's efforts to undermine the Constitution and overturn the results of the 2020 election by force and fraud create a strong presumption against him. If such behavior is left unpunished and instead rewarded with another term in office, it creates an obvious incentive for both Trump and other politicians to engage in similar - and perhaps even worse - skullduggery in the future. If future presidents can view acceptance of election results and peaceful transition of power as optional, that poses a serious threat to the entire system of constitutional democracy.

This danger is exacerbated by Trump's repeated promises to use the power of government to persecute his political enemies. Even if he doesn't launch another insurrection or coup, Trump could severely undermine basic norms of liberal democratic government, and his past track record indicates he has every intention of trying to do so. His authoritarian tendencies are so blatant that even many of his former cabinet members and advisers  - such as Gen. John Kelly (Trump's former chief of staff) warn against them, and have refused to support him for a second term.

Libertarian political philosopher Michael Huemer  cogently argues this danger is so great that it renders normal policy issues irrelevant, even though he is also no fan of the political left, which he regards as the biggest long-term threat to liberty. I wouldn't go quite that far. A sufficiently great superiority on other issues might still justify backing Trump over Harris.

But Trump's track record of trying to overthrow constitutional democracy at least creates a very strong presumption against him, one that can only be overcome by truly overwhelming advantages elsewhere. As we shall see, not only is there no such overwhelming advantage, but Trump's policy agenda is actually much worse than Harris's.

Why Trump's Policy Agenda is More Dangerous than Harris's

Trump proposes truly horrible policies on trade, immigration, and national security. And  he has a good chance of being able to carry out this agenda through unilateral executive action.

On trade, Trump plans to impose 10% or higher across-the-board tariffs on virtually all imports. This would inflict immense damage on the US economy (reducing GDP by 0.8% even without considering the impact of retaliation by trade partners), cost the average family $1350 to $3900 per year (again, even without accounting for retaliation), destroy more jobs than it would create, trigger a massive mutually destructive trade war, and severely damage US relations with our allies, thereby weakening our position relative to authoritarian adversaries like Russia and China. Moreover, under current judicial precedent, Trump could likely implement this policy without any new legislation, and courts would probably do little or nothing to curb it. Even if Trump implemented "only," say, half of this tariff agenda (e.g. - 5% tariffs instead of 10%), it would still be a terrible disaster.

The story on immigration is similar. Trump plans to adopt mass deportation and also massively cut legal immigration (probably even more than he did in his first term, when he slashed legal migration far more than the illegal kind). Elsewhere, I have explained why reducing immigration restrictions should be a high-priority issue for anyone who cares about freedom and human happiness. Trump's agenda would move us in the wrong direction on a truly massive scale.

Trump's policies would consign millions of would-be immigrants to lives of poverty and oppression, for no better reason than that they were born in the wrong place. Libertarians who condemn socialism should oppose barring migrants fleeing repression by socialist regimes like those of Cuba and Venezuela.

Current US citizens would also suffer great harm from Trump's mass deportations and cuts to legal migration would disruption markets, increase prices and cause shortages. Deportation destroys more American jobs than it creates.  In addition, cutting migration would also exacerbate the federal government's already dire fiscal situation. The Congressional Budget Office estimates the increased immigration since 2021 will reduce deficits by almost $1 trillion over the next decade.

The impact on civil liberties would also be great. Large-scale deportation routinely results in detention and deportation of US citizens, due to poor due process protections. This problem is likely to be exacerbated by the enormous scale of Trump's plans.

Executive power over immigration is somewhat more constrained than that over trade. Some of Trump's most extreme plans might be struck down by the courts. Others may also be impeded by liberal sanctuary jurisdictions (though red states and localities might actually help Trump). But Trump could still do great harm here. Congress has delegated broad discretion to presidents on immigration policy, and courts are generally more deferential to the executive on immigration issues than elsewhere. That unjustified double standard is unlikely to change soon. As Cato Institute immigration policy expert Alex Nowrasteh emphasizes, the president has particularly sweeping discretion over legal migration, and little stands in the way of Trump's plans to radically cut it.

Harris has plenty of awful policies of her own, such as price controls and rent control -  (though she has scaled back the price control plan). But virtually all the worst ones require new legislation that will be hard to get through a closely divided Congress, especially since Republicans are highly likely to regain control of the Senate.

Like Biden before her, Harris would likely try to push through some harmful regulatory and spending policies through executive action. But the courts are much tougher on executive power grabs outside the fields of trade and immigration. For example, last year, the Supreme Court struck down Biden's massive student loan forgiveness plan, and lower courts (including Democratic-appointed judges) have invalidated the administration's most recent efforts to resuscitate the idea. Recent Supreme Court decisions cutting back on judicial deference to administrative agencies are likely to make major power grabs still harder to pull off.

A Harris administration would surely still succeed in enacting some terrible regulations. But nothing with the enormous impact of Trump's tariff and immigration policies.

Government spending is another major area where Trump is likely to be worse. Harris and Trump are both awful on spending issues, with neither willing to do much to address the looming fiscal crisis facing the nation. But Trump's policy agenda would grow the deficit significantly more than Harris's. Amazingly, deficit spending increased much more during Trump's first term in office than during Biden's term, even without factoring in the Covid crisis.

Congress bears at least as much responsibility for these trends as presidents do. But here, there is a crucial dynamic that makes Harris less dangerous. Over the last several decades, congressional Republicans are happy to spend like drunken sailors when there is a Republican in the White House, but then stress fiscal restraint when there is a Democratic president. Congressional Democrats mostly support high spending regardless of who is in the Oval Office.

As fiscal policy analyst Brian Riedl, of the conservative Manhattan Institute puts it, "[f]or deficit hawks, a Democratic president and GOP Congress has been the best bet. During those later parts of the Clinton and Obama admins, the GOP Congress would become deficit hawks and box in the president. On the flip side, GOP presidents and Democratic Congresses have teamed up to expand deficits, such as under Bush and later Trump years. Full Democratic or GOP control have been the most expensive disasters." Thus, a Harris victory combined with the GOP controlling at least one house of Congress (a likely scenario given the state of the Senate), is our best bet for fiscal restraint. In addition, as already noted, Trump's immigration polices would further balloon the deficit, because immigrants contribute much more to the public fisc than they take out.

Some argue Trump will be constrained by opposition from the "deep state" federal bureaucracy, while those officials would do more to help Harris. But groups like the Heritage Foundation are working to ensure that a second Trump administration would be able to pack federal agencies with pre-screened loyalists, thereby greatly weakening this constraint. Moreover, the federal employees who staff agencies dealing with issues on which Trump's policies are likely to cause the most harm -trade and immigration - are often actually supportive of his policies. For example, the Border Patrol union has endorsed Trump.

Trump won't be able to completely bend the federal bureaucracy to his will. But a second Trump administration would feature far more MAGA loyalists and fewer "adults in the room" than the first.

Security and Defense Policy

Foreign and defense policy is an area where presidents have especially broad discretion. And here, Trump's agenda is truly awful. It would gravely weaken the Western alliance at a time of rising threats from authoritarian powers such as Russia and China. Starting a massive trade war with our allies, as Trump proposes to do, would seriously damage relations. Trump has repeatedly called into question our obligations under NATO, a crucial cornerstone of our alliance system. That, too, is likely to poison relations with key allies, and embolden our enemies.

Trump also advocates ending all or most US aid to Ukraine, and VP nominee J.D. Vance is even more unequivocal on that score. In addition to the enormous moral and humanitarian stakes (a Russian victory would result in further mass murder and oppression), the Ukraine war is the central front in the global confrontation between liberal democracy and authoritarian nationalism. Effectively letting Putin win would be a huge boost for the latter, and encourage further aggression. Conservatives who claim helping Ukraine is a diversion from countering China in the Pacific should remember that our Asian allies—including Taiwan—believe helping Ukraine is in their strategic interest. They know countering Russia also weakens China (for whom Russia is a key ally), and that showing resolve in Ukraine helps deter China, as well.

Pro-Israel conservatives could argue that Trump's weaknesses on Ukraine are paralleled by the Democrats' dubious stance on Israel. But any such comparison is off-base. Biden and Harris have sometimes urged excessive restraint on the Israelis. But they have nonetheless continued to provide extensive assistance, enough to allow Israel to not only continue to fight, but wipe out most of the leadership of Hamas and Hezbollah. Ultimately, Democratic policies impose only modest constraints on the Israelis' ability to fight. Don't take my word for it; take that of the far-leftists who bitterly denounce Biden and Harris on that score.

By contrast, Trump's approach to Ukraine would far more severely undermine its ability to resist. Moreover, if we have to choose between the two, Ukraine's fight deserves higher priority, because many more lives are at stake (due to the larger scale of the war), Russia is a more important enemy of the West than Iran and its proxies, and Ukraine needs outside assistance more, because it faces a much stronger adversary.

Deregulation and Judicial Reform

Libertarians and pro-market conservatives who support Trump often cite regulation and the Democrats' supposed threat to the judiciary as key reasons. Both arguments are largely wrong, or at least overblown.

Trump actually expanded regulation more than he contracted it during his first term (and that's without considering the impact of his trade and immigration policies). A second Trump term is likely to be worse, as more of it will be staffed by MAGA "national conservatives," who support government intervention in the economy as much or more than leftists do. VP nominee J.D. Vance is a leading figure among such anti-market conservatives, and he would likely have considerable influence over regulatory policy in a second Trump administration (as Trump himself is notoriously inattentive to policy details). Trump is still likely to be less bad than Harris on some regulatory issues; but nowhere near enough to outweigh the impact of his awful trade and immigration policies.

The supposed Democratic threat to the judiciary is similarly overblown. Elsewhere, I have analyzed the main judicial reforms proposed by Biden and endorsed by Harris: term limits for Supreme Court justices, a Supreme Court ethics code, and a constitutional amendment stripping the president of all or most immunity from criminal prosecution. The first and third pose no meaningful threat to judicial independence.

Term limits for SCOTUS justices are actually a good idea with broad cross-ideological support, but one that would be problematic (and unconstitutional) if enacted by statute rather than constitutional amendment. Still, any such statutory term limit is unlikely to be enacted in a closely divided Congress, especially if (as is highly likely) Republicans control the Senate.

Some congressional Democrats advocate court-packing, a much more dangerous idea. But Harris has not endorsed that plan, Democrats remain internally divided on it, and it is even more unlikely to get through Congress than statutory term limits.

People concerned about the future of judicial review should also recall that Trump refused to accept judicial decisions against his challenges to the 2020 election, and resorted to force and fraud to reverse them. J.D. Vance has likewise advocated defying such rulings. To put it mildly, such attitudes are at least as great a threat to the judiciary - and the rule of law, generally - as anything Harris is likely to do.

Similar points apply to the argument that Trump would appoint better judges than Harris. From a libertarian and originalist point of view, conservative judge are indeed, on average, better than liberal ones, on such issues as property rights, racial preferences, and deference to administrative agencies. But they are often weak in precisely those areas where a Trump administration is most likely to cause harm: immigration and trade. Moreover, a second Trump administration might well appoint more MAGA types to the judiciary, and fewer traditional conservative jurists. Trumpists are angry at the latter for judicial rulings limiting some of Trump's initiatives in his first term, and especially for rejecting his election challenges. Ultimately, whatever advantage Trump might have here is nowhere near great enough to outweigh his awfulness on other fronts.

In sum, we face two bad options in this election. But for people who care about freedom, liberal democratic institutions, and the strength of the Western alliance, one is clearly far worse than the other.