The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent | Est. 2002

The Volokh Conspiracy

Donald Trump

Kamala Harris is a Far Lesser Evil than Donald Trump

Why I'm voting for Harris in the 2024 election.

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Former President Donald Trump and Vice President Kamala Harris at the September 2024 presidential debate on ABC News.
Former President Donald Trump and Vice President Kamala Harris at the September 2024 presidential debate on ABC News. (CHINE NOUVELLE/SIPA/Newscom)

 

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.

Title IX

Unsealed Title IX Complaint Against Columbia Now Available

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I wrote in September about this case, Doe v. Columbia Univ. (S.D.N.Y.); as Judge Dale Ho wrote there,

[T]hese cases concern allegations of sexual assault and that the events in question occurred from 2012 to 2014 or 2015, around the time that Plaintiff was an undergraduate student at Columbia University…. Plaintiff … filed identical letters seeking to proceed pseudonymously in each case …. In his letter motions seeking pseudonymous status, Plaintiff noted that his "Complaint includes sensitive health information regarding a sexual assault, and medical and psychiatric treatment for these assaults, which could have deleterious consequences if this information became public record." Plaintiff did not request that the Complaints be sealed altogether, but the Clerk of Court, as a precaution given Plaintiff's motions to proceed under a pseudonym, limited electronic docket access to Plaintiffs' Complaints to "court users and case participants." …

I moved to intervene and unseal the Complaint "with any necessary redactions of various people's personally identifying information" (but didn't oppose pseudonymity), and the court agreed. That unsealed redacted Complaint has now been filed, and it is here; there's a lot going on there, but plaintiff (a gay black man) is alleging both that he was wrongly disciplined for alleged sexual misconduct and that Columbia failed to take seriously his own claims against two other students. More generally, he's claiming race discrimination, sexual orientation discrimination, antigay harassment, breach of contract, and intentional infliction of emotional distress.

"Goodbye, Chevron: Rediscovering the Virtues of an Independent Judiciary"

You could also call this "Why people who hate Trump should love reining in agencies' power to determine their own power."

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I've just published a short article on Chevron and Loper Bright in CPI Antitrust Chronicle, called "Goodbye, Chevron: Rediscovering the Virtues of an Independent Judiciary". Most of it talks about the Chevron regime generally, though some of it mentions the specific consequences for antitrust policy.

The issue of CPI Antitrust Chronicle also contains a number of other Chevron-related articles:

You might encounter a paywall, so here are a few excerpts from my article:

The Chevron Court had defended the rule of deference by appealing to agencies' greater subject-matter expertise and democratic accountability (through the president). These twin policy rationales are both potentially relevant for agencies like the FTC, though neither is airtight. In the first place, the FTC has over a century of experience in defining "unfair methods of competition." (But again, recall that, when such unfair methods relate to labor, one can debate whether the FTC should have any privileged position relative to, say, the Department of Labor.) And in the second place, the FTC is subject to political control, and it surely shows some responsiveness to democracy that the FTC's views have shifted substantially with administrations of different political parties. (Though at the same time, it can be problematic to talk about democratic accountability for independent commissions that are, by design, shielded from presidential control through restrictions on removal.)

But, more broadly, these policy rationales are in substantial tension with other features of separation-of-powers law. Much of administrative law was forged in the D.C. Circuit of the 1960s and 1970s, when influential appellate judges — "liberals" and "judicial activists" like J. Skelly Wright and David Bazelon — tightened up the APA's procedural requirements and developed a "searching and careful" version of hard-look review. Their idea was that — contrary to the credulous view of apolitical bureaucratic expertise that prevailed in the 1930s — agencies will tend to pursue narrow agendas (for instance, the agenda of the regulated industry itself) rather than the public interest, and therefore need a strong and independent separate branch to check their bad impulses. These procedural and substantive features of administrative law can be thought of as anti-delegation canons, predating by decades the major questions doctrine and coming from a very different ideological perspective than, say, the anti-administrative anti-delegationism that has long been popular in Federalist Society circles and is now championed by Justices Gorsuch and Thomas.

Consider, too, one of the finest moments of separation-of-powers doctrine, which arose in a military-and-national-security-adjacent context where one would have expected strong deference. In Youngstown Sheet & Tube Co. v. Sawyer, the Supreme Court held that President Truman didn't have the power to seize steel mills, even though the president claimed military necessity.

Was there ambiguity in the statute? Yes, there was: Just as in Loper Bright, the statute provided the necessary seizure authority in a number of cases but was silent on the case at hand; this could be interpreted as mere statutory silence, but (in a sort of expressio unius move) the Court instead interpreted it as a congressional decision to deny the president the seizure power. Was there subject-matter expertise? Yes, because the president, as Commander-in-Chief, understands military necessity better than judges, and because the Supreme Court has long held that the president occupies a privileged position when foreign and military affairs are involved. Was there democratic accountability? Yes, because the president himself (not some obscure agency) was directly involved, and because the Korean War (though never declared by Congress) had a high degree of political salience.

Nonetheless, the Court exercised its independent judgment and kept the president within statutory and constitutional bounds. The Youngstown Court and the later D.C. Circuit judges would surely have agreed that to do otherwise would be to leave the fox guarding the henhouse.

And here's a bit from the end, suggesting that someone (like me) who, looking at current poll results in swing states two weeks before the election, is afraid of the possibility of a new Trump term, might welcome a move that reins in agencies' discretion to determine the bounds of their own power:

Putting the courts in the driver's seat, and preventing agencies from interpreting statutes in ways that are wrong but not crazy — these are positive moves. Consider, for some perspective, City of Arlington v. FCC, where the Supreme Court confronted whether Chevron applied to an agency's interpretation of the scope of its own jurisdiction or authority. Justice Scalia wrote that the distinction between jurisdictional and non-jurisdictional interpretations is illusory: "No matter how it is framed, the question a court faces when confronted with an agency's interpretation of a statute it administers is always, simply, whether the agency has stayed within the bounds of its statutory authority." For courts, the jurisdictional/non-jurisdictional distinction is meaningful: "Whether the court decided correctly is a question that has different consequences from the question whether it had the power to decide at all." But for agencies, that distinction makes no sense: "Both their power to act and how they are to act is authoritatively prescribed by Congress, so that when they act improperly, no less than when they act beyond their jurisdiction, what they do is ultra vires."

Justice Scalia used that reasoning as an argument in favor of Chevron deference: Because the question of whether the agency acted ultra vires is the same every time the agency adopts an interpretation of its statute, there's no reason to separate out supposedly "jurisdictional" interpretations.

Against the background of his longstanding support for Chevron, this meant Chevron all the time. But one could turn this around and make it an argument against Chevron deference.

The premise and promise of cases like Youngstown is that courts are ready to guard against executive overreach by authoritatively interpreting statutes and holding the government within its proper bounds. The "province and duty of the Judicial Department," says Marbury v. Madison, is, after all, to "say what the law is." But Justice Scalia's reasoning implies that all agency statutory interpretations are created equal; if this is so, then any deference allows the fox to guard the henhouse, and any admission that the agency is wrong-but-not-crazy amounts to acquiescence in ultra vires action.

The Marbury/Youngstown promise of checks and balances works when courts tell the executive what statutes mean — not the other way around. The idea of robust separation of powers sits uneasily with an attitude that the Executive Branch is allowed to be wrong-but-not-crazy. Of course, if there really were a delegation of congressional lawmaking power, that might be acceptable under our current loose non-delegation doctrine; but the idea of anti-delegation canons suggests that such delegations shouldn't be casually allowed as a broad background principle of administrative law.

Much of the hand-wringing over the end of the Chevron regime stems from the idea that agencies are fundamentally more trustworthy interpreters of the statutes they administer than are federal courts. How the political winds change: Back in 1984, some critics interpreted Chevron as a capitulation to the Reagan Administratio[n's] deregulatory tendencies. Indeed, everything old is new again: The modern-day criticism of federal courts, especially the current Supreme Court, looks a lot like it did in FDR's day, right down to some commentators' advocacy of court-packing; and the relative defense of agencies has the flavor of the 1930s paeans to technocratic, apolitical expertise.

But some perspective may be useful. For every utopian vision of well-meaning technocrats hobbled by lawfare and stymied by ideological judges, there is a dystopian vision of lawless bureaucrats challenged by their victims and checked by a heroic judiciary. Perhaps the truth is somewhere in between. Note, though: The federal judiciary changes gradually with every president's appointments, and we've had a pretty regular alternation of parties in the White House for decades. But in executive agencies, the high-level agency staff turns over immediately. (Even in multi-member independent commissions like the FTC, party control can change quickly when a president of an opposing party takes over — perhaps with the first presidential appointment.)

President Trump's agency appointees from 2017–21 may be running agencies again in 2025, or perhaps it'll be President Vance's or DeSantis's appointees in 2029. Anyone who broke out in a cold sweat while reading that last sentence may yet come to appreciate a regime that takes agencies out of the driver's seat of interpreting their own statutes, and may come to thank the Trump-appointed Justices who made it happen.

As they say, Read the Whole Thing.

Free Speech

"We Have the Zyklon B. Use Code 'GASTHEJEWS' for 10% Off!" Postcard Sent to Rabbi …

may be constitutionally unprotected threat.

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U.S. v. Ramos, decided Sept. 27, 2024 by Judge Marc Treadwell (M.D. Ga.), allowed the threats prosecution against the defendant to go forward:

"To obtain a conviction under 18 U.S.C. § 876(c), the government must prove beyond a reasonable doubt that the defendant (1) knowingly sent a message through the mail, (2) knew that the mailing contained a 'true threat,' and (3) intended (or at least knew) that the statement would be viewed as a threat."

"True threats" are not protected by the First Amendment of the United States Constitution. True threats are "statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence." A prohibition on true threats, such as § 876(c), "protects individuals from the fear of violence and from the disruption that fear engenders." Courts have consistently held that "whether a communication is a threat is an issue of fact to be left to the jury." However, "[i]f there is no question that a defendant's speech is protected by the First Amendment, the court may dismiss the charge as a matter of law." …

The indictment alleges that Ramos made the decision to mail a threatening, handwritten postcard to the home address of a Rabbi who had been speaking publicly against antisemitism following a neo-Nazi demonstration at her synagogue.

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The Party Line

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Chief Justice Marshall:

It is also objected that some of the Defendants in error do not show a complete legal title under Terrell and Hawkins, for which reason they have not entitled themselves to a conveyance from Charles Simms; and that one of them, John Meiggs, has obtained a decree for 140 acres of land, although in the bill he claimed only 100 acres.

Regularly the Claimants who have only an equitable title ought to make those whose title they assert, as well as the person from whom they claim a conveyance, parties to the suit. For omitting to do so an original bill might be dismissed. But this is a bill to enjoin a judgment at law rendered for the Defendant in equity against the Plaintiffs. The bill must be brought in the Court of the United States, the judgment having been rendered in that Court. Its limited jurisdiction might possibly create some doubts of the propriety of making citizens of the same state with the Plaintiff, parties Defendants. In such a case, the Court may dispense with parties who would otherwise be required, and decree as between those before the Court, since its decree cannot affect those who are not parties to the suit.

Simms v. Guthrie, 13 U.S. 19, 24–25 (1815) (emphasis added).

Sports

Will the City of Cleveland Sue to Keep the Browns from Moving to the Suburbs?

City officials are threatening to invoke the "Modell Law" to prevent a potential move to a new facility in Brook Park.

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Cleveland Browns owners Jimmy and Dee Haslam have announced plans to relocate the team to Brook Park, a Cleveland suburb, where a new stadium can serve as the anchor of a new retail and entertainment complex. City officials, as you might expect, are not happy, and some local officials scoff at the idea.

Despite the wealth of academic evidence that local subsidies for sports team rarely (if ever) pay for themselves, city officials would prefer the Browns stay on the city's lakefront, and have proposed substantial renovations to the current stadium, or the possibility of (yet another) new stadium.

City officials are not just proposing further subsidies for the team. They are also threatening legal action. Attorneys in the city's law department are apparently preparing to invoke the "Modell Law," which was enacted to discourage local teams from leaving.

Suing to keep the Browns sounds like an aggressive strategy, but it is not clear what that would accomplish. Here is what the Modell Law says:

No owner of a professional sports team that uses a tax-supported facility for most of its home games and receives financial assistance from the state or a political subdivision thereof shall cease playing most of its home games at the facility and begin playing most of its home games elsewhere unless the owner either:

(A) Enters into an agreement with the political subdivision permitting the team to play most of its home games elsewhere;

(B) Gives the political subdivision in which the facility is located not less than six months' advance notice of the owner's intention to cease playing most of its home games at the facility and, during the six months after such notice, gives the political subdivision or any individual or group of individuals who reside in the area the opportunity to purchase the team.

So the Haslams have to give Cleveland six months notice, during which time they can field offers for the team. That's it. Given that any move is years away (both because of the existing lease and the time required to build a new stadium in Brook Park), it is not clear how the city could even allege that the law is being violated, so it's not clear what filing a lawsuit would accomplish (other than giving politicians the ability to claim they fought to keep the Browns in the city).

If city officials were really serious about preventing the Browns from moving to the suburb, they would investigate the use of eminent domain to force a sale of the team to the city. This strategy, if combined with the creation of some sort of local ownership structure like the Green Bay Packers have, would also prevent the recurring cycle of private owners demanding ever-greater stadium subsidies to remain. (Subsidies, it is worth reiterating, which do not appear to ever pay for themselves.)

This would be a financially audacious and legally risky strategy, as sports teams are not cheap and I am not sure the use of eminent domain to acquire a sports team so as to prevent it from moving to the suburbs would satisfy the Ohio Constitution, which has been interpreted to impose a more stringent public use requirement than does the Fifth Amendment. I am also not a big fan of using eminent domain to take private property, and I am not at all confident that the city would be a competent manager of the team. (OTOH: Could it be worse than the Haslams?)  My only point is that if city officials were intent on playing hardball, they would be talking about something more meaningful than a suit to "enforce" the Modell Law.

Administrative Law

"The Truth of Erasure" - A Defense of Universal Remedies

The Ohio Solicitor General's office defends universal vacatur under the Administrative Procedure Act

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The Ohio Solicitor General's office is a frequent litigant challenging federal agency action. Thus it may be no surprise the the Solicitor General supports universal remedies, such as universal vacatur under the Administrative Procedure Act.

The Ohio Solicitor General is not limiting this argument to its legal briefs. Ohio SG Elliot Gaiser and two attorneys in his office, Mathura Sridharan and Nicholas Cordova, have posted an article on SSRN, "The Truth of Erasure: Universal Remedies for Universal Agency Actions," defending this position.

Here's the abstract:

Courts, litigants, and scholars should not be confused by the ongoing debate about nationwide or so-called "universal" injunctions: the proper scope of remedies under the Administrative Procedure Act and other statutes providing for judicial review of agency action is erasure. The long-established judicial practice of vacating unlawful agency rules should continue because the Administrative Procedure Act instructs courts to review and remedy unlawful agency action itself, just as appellate courts review and vacate the erroneous judgment of a lower court. This appellate review model also permits courts to grant universal preliminary relief in the form of a stay that prevents an agency rule from taking effect until courts finally resolve its legality.

The U.S. Constitution not only permits but requires courts to have this authority to grant universal relief against unlawful agency action. When executive Branch agencies exercise delegated legislative power to make rules with universal effect, separation of powers requires that courts be vested with commensurate power to issue universal relief. Agency rules evade the front-end checks that restrain legislation, so the back-end check of stronger judicial remedies is appropriate. Article III does not prevent courts from maintaining this balance. Vacatur of an unlawful rule resolves a true case or controversy and is a statutorily authorized remedy rather than a unilateral extension of the judiciary's traditional equitable powers. Indeed, the constitutional discomfort that arises from APA cases stems from the extraordinary nature of agency rulemaking, not judicial review of it.

These features of universal APA remedies meaningfully distinguish them from nationwide or so-called "universal" injunctions against federal or state laws and direct presidential action. If courts, lawyers, and scholars want to debate the legality of both universal remedies against agency action and universal injunctions, they must have two separate debates. The APA debate, however, is largely and rightly settled.

State Constitutional Law

Justice Pat DeWine on Interpreting the Ohio Constitution

A forthcoming paper from a Justice on the Ohio Supreme Court on constitutional interpretation in Ohio.

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Most discussions of constitutional interpretation focus on the interpretation of the federal constitution. But (as Judge Jeffrey Sutton likes to remind us) there are actually 51 constitutions in the United States, and constitutional doctrines can develop (and have developed) differently at the state level. Different state constitutions were adopted at different times, and many have features that are quite distinct from the federal constitution. For example, many states elect multiple executive branch officials, such that it cannot be said that they have a "unitary executive." (Whether the federal constitution creates a unitary executive is, of course, a matter of some academic debate.)

Ohio Supreme Court Justice Pat DeWine has a forthcoming paper on the interpretation of the Ohio Constitution, titled (appropriately enough) "Ohio Constitutional Interpretation." It is a welcome contribution to the under-developed literature on state-level constitutional interpretation.

Here is the abstract:

There has been a good deal written about why state courts should independently interpret state constitutions.  But not much on how they should do that.  We shouldn't just assume that the interpretive methodologies for state constitutions are necessarily the same as for the Federal Constitution.  I focus here on some key interpretive issues for the Ohio Constitution, but the issues addressed will be relevant in the interpretation of other state constitutions as well.

I argue for an original public meaning approach to the Ohio Constitution.  Such an approach is rooted in our earliest caselaw.  And there is a compelling normative case for original public meaning because every provision of the Ohio Constitution was approved by popular vote of the people and because the Ohio Constitution is relatively easy to amend. Most proponents of a "living constitution" focus their arguments on the difficulty of amending the federal constitution, but because the Ohio Constitution can be easily updated by the people, there is no justification for judges to do that work for them.

So how do judges discern original public meaning?  Text is paramount, but what should judges look at when text is not determinative?  I explore several possibilities including: (1) Ohio's prior constitution and other state constitutions, (2) constitutional convention proceedings and other historical materials, (3) ballot language and other officially promulgated materials, and (4) campaign materials, news articles and other contemporaneous materials available to voters considering a constitutional amendment.

Finally, I take up the problem of how to deal with prior "lockstep precedent" that says that a provision of the Ohio Constitution has the same meaning as a similar provision in the federal Constitution.  I argue that we should only give minimal stare decisis effect to such pronouncements and in most cases should abandon them when text and history demonstrate a different meaning.

Religion and the Law

Religious Discrimination Claims Related to Ex-Employee's Objecting to Participating in "LGBTQ+" Events Can Go Forward

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From Pumariega v. Basis Global Technologies, Inc., decided Monday by Judge Lindsay Jenkins (N.D. Ill.):

{The following factual allegations are taken from Pumariega's Second Amended Complaint and are accepted as true for the purposes of the motion. In setting forth the facts at the pleading stage, the Court does not vouch for their accuracy.}

Pumariega worked remotely from Florida for an Illinois-based company, Basis. In November 2022, Pumariega received an email from Basis's Diversity, Equity, and Inclusion (DEI) Department announcing an upcoming virtual, mandatory training on December 6, 2022. The email laid out the agenda which included (1) reviewing "LGBTQ+ terminology related to sexual orientation, gender identity, and expression – including words to avoid;" (2) discussing "a variety of gender-expansive pronouns that [one] may encounter in the workplace;" and (3) considering "a variety of ways that [one] can demonstrate … allyship to folks who are transgender and/or nonbinary, as well as resources to help … learn more." Pumariega, who is a devout Christian, did not request a religious accommodation to be excused from the event and attended the DEI training.

During the training presenters discussed gender identity, sexuality, sexual orientation as a scale, use of inclusive language, and preferred pronouns. Employees were instructed to use inclusive language when referring to groups in the workplace, and to consider where they fell on the sexual orientation scale—presented as a continuum stretching from "straight" to "gay/lesbian." In Pumariega's view, these concepts conflict with his Christian ideology, specifically the belief that there is no "sexuality scale" and that romantic relationships should only be between a man and a woman.

In approximately February 2023, Pumariega submitted anonymous feedback to the DEI team about the December training. Without disclosing his religious beliefs or indicating a religious objection to the training, Pumariega explained that, in his opinion, the topics discussed were inappropriate for the workplace.

In a May 2023 meeting with his supervisor, Drew Schuch, Pumariega revealed his Christian beliefs, expressed that the mandatory training conflicted with those beliefs, and requested an accommodation to skip future mandatory DEI trainings. Schuch assured Pumariega that Basis could not fire him on account of his religious beliefs and directed him to discuss the issue with Cassie Clark, Basis's Manager of Talent Partners.

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Free Speech

From Prof. Michael McConnell: Meta Oversight Board Steps Up To Protect Conservative Political Speech

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I'm delighted to pass along this item from my Hoover Institution colleague Michael McConnell, who is also a professor at Stanford Law School and the co-chair of the Facebook Oversight Board:

Increasingly, the most significant gatekeepers for political speech are not elected governments or courts, but the social media companies that control Facebook, Instagram, Threads, YouTube, X, and the like. That is why I signed on to co-chair Meta's independent Oversight Board, which handles appeals from users and referrals from the company in high-profile cases from all over the world. Necessarily, the Board cannot take a large number of cases; it decided just over 50 last year and is on track to decide a few more this year. The hope (and I think to some extent the reality) is that these high-profile cases, most of which have reversed Meta's original decision, will have an impact on the content moderation system as a whole.

Conservatives in the United States have long complained that the social media companies discriminate against right-of-center speech. It is hard to know how systemic this problem might be, because there are no good data—but there certainly are disturbing examples. Even Mark Zuckerburg has admitted that, in hindsight, the censorship of, for example, the Hunter Biden Laptop story, was wrong, and that the company has been too ready to comply with Administration demands to take down posts based on claims about misinformation and disinformation. In all likelihood, this ideological discrimination, to the extent it exists, is a product less of deliberate company policy than the tendency of on-the-ground content moderators (who are typically drawn from the Bay Area technocracy, which is not evenly divided between the parties) to make close calls in a way that skews left.

People wonder why, then, there have been relatively few interventions by the Oversight Board to protect right-of-center users from suppression of their speech on the platform. Based on my experience, there are at least two reasons. First, when users point out obvious errors in taking down legitimate posts, Meta's internal system often corrects the decision within a few days or a week. A few days or a week is long enough to do the harm; speech on political issues is usually stale after that time has passed. But if errors are corrected in that time frame, the case will never come to the Oversight Board.

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Criminal Justice

Public Defender Disqualified from Case for Race-Related Statement in Plea Bargain Negotiations

A California appellate panel interprets California's Racial Justice Act.

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From Sanchez v. Superior Court, decided yesterday by California Court of Appeal Justice Richard Fields, joined by Justice Manuel Ramirez:

In this writ proceeding, defendant and petitioner Enrique Sanchez seeks a writ of mandate ordering respondent superior court to vacate its order directing the San Bernardino County Public Defender (public defender) to assign a new attorney from its office to represent petitioner in his criminal proceedings. The trial court issued the order after receiving evidence that the deputy public defender currently assigned to represent him made remarks invoking defendant's race as a factor to consider during plea negotiations, potentially in violation of the Racial Justice Act (RJA). We conclude that petitioner has failed to establish an abuse of discretion warranting reversal of the trial court's order under the circumstances presented in this case. As such, we deny the petition….

In October 2023, the People filed an information alleging petitioner committed multiple criminal offenses arising out of an incident that occurred on January 7, 2023. {[From the dissent: -EV] Sanchez was charged with kidnapping to commit rape, rape by force or fear, infliction of corporal injury on a spouse or cohabitant, forcible oral copulation, and assault with a deadly weapon. Kidnapping to commit rape carries a sentence of life without parole.}

The public defender was appointed as defendant's counsel and a specific deputy public defender from its office (deputy public defender) was assigned to handle defendant's case. On December 4, 2023, the prosecutor … stat[ed] that she engaged in a plea negotiation with the deputy public defender and, in the course of that negotiation, the deputy public defender became frustrated and stated: "'I really don't care.' … [R]ead between the lines …. I am a white man. What do I care? It's not my people we are incarcerating.'"

When the prosecutor asked for clarification about the remarks, the deputy public defender stated that he expected the prosecutor to show more leniency because the prosecutor and defendant appeared to be the same race, stating: "'[Y]ou are part of the problem. Look around you, all the people being incarcerated are your people. I will just look like a mean defense attorney. You should be part of the solution.'"

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Politics

2024 Ron Rotunda Memorial Webinar: Profiles in Courage in the Legal Profession

A discussion with Erin Murphy.

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I had Professor Ron Rotunda for Constitutional Law in 2007. But for Ron, I doubt I would have become a constitutional law professor. He inspired me in ways I still think about to this day. In 2018, Ron suddenly passed away, far too young. The following year, I wrote a remembrance about Ron in the Chapman Law Review.

The Federalist Society has created a new annual webinar in Ron's memory. Last year, I interviewed Greg Jacob, who served as a counselor to Vice President Pence on January 6, 2021. This year, I interviewed Erin Murphy. The theme was "Profiles in Courage in the Legal Profession." Erin and I spoke about the two occasions in which she left a firm, that was unwilling to stand up for a client. Erin's story is an important one that all aspiring lawyers should learn.

Second Amendment Roundup: Supreme Court Grants Cert in Mexico v. Smith & Wesson

A cartel-dominated state blames America’s lawful gun industry for its violence.

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On October 4, the Supreme Court granted cert in Smith & Wesson Brands v. Estados Unidos Mexicanos.  It involves Mexico's suit against the American firearms industry, which alleges that the industry enables the drug cartels to empower their stranglehold over Mexican society.  The First Circuit upheld the claim by reversing the dismissal of the case granted by the District Court in Massachusetts.

The absurdity of Mexico's lawsuit is illuminated by action in another case just days later. On October 16, U.S. District Judge Brian Cogan in Brooklyn sentenced Genaro Garcia Luna to 460 months imprisonment for engaging in a continuing criminal enterprise, international cocaine distribution conspiracy, conspiracy to distribute and possess with intent to distribute cocaine, and conspiracy to import cocaine. But Luna wasn't just another El Chapo, whom Judge Cogan sent to the big house five years ago.

For over a decade, Luna was the head of Mexico's Federal Investigative Agency, and then became Secretary of Public Security.  According to the U.S. Department of Justice, Luna "used his official positions to assist the violent Sinaloa Cartel (the Cartel) in exchange for millions of dollars in bribes."  That included "facilitating safe passage of the drug shipments, providing sensitive law enforcement information about investigations into the Cartel and helping the Cartel attack rival drug cartels…."  He thereby enabled over a million kilograms (over 2.2 million pounds) of cocaine to be imported into the United States.

But corruption-ridden Mexico wants to blame America's lawful gun industry for its status as a failed state.  In the cert petition, the petitioners describe the background to the question presented as follows:

The Mexican Government has sued leading members of the American firearms industry, seeking to hold them liable for harms inflicted by Mexican drug cartels. According to Mexico, America's firearms companies have engaged in a series of business practices for decades—from selling semi-automatic rifles, to making magazines that hold over ten rounds, to failing to impose various sales restrictions—that have created a supply of firearms later smuggled across the border and ultimately used by the cartels to commit crimes. Mexico asks for billions of dollars in damages, plus extensive injunctive relief imposing new gun-control measures in the United States.

The district court dismissed the case under the Protection of Lawful Commerce in Arms Act (PLCAA), which generally bars suits against firearms companies based on criminals misusing their products. But the First Circuit reversed. It held that PLCAA does not bar this suit because Mexico stated a claim that defendants' business practices have aided and abetted firearms trafficking to the cartels, proximately harming the Mexican government.

The petition states that the following two legal issues under PLCAA require resolution by the Court:

    1. Whether the production and sale of firearms in the United States is the "proximate cause" of alleged injuries to the Mexican government stemming from violence committed by drug cartels in Mexico.
    2. Whether the production and sale of firearms in the United States amounts to "aiding and abetting" illegal firearms trafficking because firearms companies allegedly know that some of their products are unlawfully trafficked.

PLCAA was enacted to require dismissal at the inception of lawsuits like this.  Other courts have recognized that.  The First Circuit's decision creates a circuit split.

Back in the 1980s, unable to convince legislatures to ban handguns, the anti-gun movement began filing lawsuits against the industry for crimes committed by third parties.  It didn't matter that the courts disagreed with the theory of liability, because the industry could be bankrupted by legal fees.  Over time, municipalities became plaintiffs in such suits, only to be rebuffed by the courts.  Congress finally stepped in by passing PLCAA to stop these abusive lawsuits.

The anti-gun movement continues to pursue the same strategy.  One of Mexico' lawyers listed on the complaint is Jonathan Lowy, counsel for BRADY (formerly Handgun Control, Inc.). BRADY supports repeal of PLCAA, but resorts to the courts to undermine the law since Congress has not done so.

Mexico's complaint parrots the same kinds of allegations which PLCAA was designed to bar.  As summarized by the First Circuit, Mexico alleges that "by passing along guns knowing that the purchasers include unlawful buyers, and making design and marketing decisions targeted towards those exact individuals, the manufacturer is aiding and abetting illegal sales."  As everyone knows, the manufacturers sell to distributors, which sell to dealers.  Each of these entities is licensed under the Gun Control Act and is subject to ATF inspection and oversight. The complaint includes no allegation that any of the defendants violated U.S. laws or knew that others with whom they did business did so.

While there is thus no proximate harm from America's lawful firearms industry to Mexico, the First Circuit proposes the following incredible analogy:

Imagine that a U.S. company sent a mercenary unit of combat troops to attack people in Mexico City. Such an attack would directly cause Mexico itself the expense of paying soldiers to defend the city. Proximate cause would be quite clear. So, too, here, where the defendants are alleged to have armed the attackers for their continuing assaults.

The Mexican government itself, through bad actors such as Genaro Garcia Luna, has facilitated the ability of the cartels to attack people in Mexico.  We frequently read stories of Mexican villages that form militias to protect themselves from the drug gangs. The Mexican government has failed at the most fundamental duty of any government: protecting the population under its rule.

While allowing, and being bribed to allow, the cartels to run rampant over the country, the government has only a single gun store in the entire country to allow law-abiding citizens to purchase firearms – and it's run by the military in Mexico City.

As it colludes with American actors to destroy the Second Amendment – after all, that's the point of the whole exercise of bringing its lawsuit – the Mexican government reinforces its own contempt for civil liberties, such as the fundamental human right to defend life.

Mexico's 1857 constitution (Art. 10) provided: "Every man has the right to have and to carry arms for his security and legitimate defense. The law will indicate which arms are prohibited and the penalty for those that will carry prohibited arms."  That was whittled down in the same article of its 1917 constitution to say that the inhabitants have "a right to arms in their homes, for security and legitimate defense, with the exception of arms prohibited by federal law and those reserved for the exclusive use of the [military]. Federal law will determine the cases, conditions, requirements, and places in which the carrying of arms will be authorized to the inhabitants."

In other words, Mexican citizen have a "right" to arms only as granted by the government.  For further insights on the topic, see David Kopel's article "Mexico's Gun Control Laws: A Model for the United States?"

After the briefs were filed, Mexico made a last-minute attempt to scuttle the case. Smith & Wesson notified the Supreme Court that, just recently, six manufacturers had been dismissed by the district court for lack of personal jurisdiction.  However, the suit remained live against Smith & Wesson and Interstate Arms.  Mexico responded that the dismissals undermined the petitioners' arguments about the importance of the case.  The Court ignored Mexico's filing and granted cert.

Understanding the issues in Mexico v. S&W requires a deep dive into PLCAA.  While not framed as a Second Amendment case, the issues profoundly affect whether that right will be protected.  PLCAA itself begins with a reaffirmation of Second Amendment rights and how lawsuits have been brought against the industry for crimes committed by third parties.  See 15 U.S.C. § 7901 et seq.  It declares that a "qualified civil liability action," defined as an action against a federal firearms licensee for damages or other relief resulting from the criminal or unlawful misuse of a firearm, "may not be brought in any Federal or State court."

There is a predicate exception from the ban on such lawsuits if the manufacturer or seller of a firearm "knowingly violated a State or Federal statute applicable to the sale or marketing of the product [firearm], and the violation was a proximate cause of the harm for which relief is sought…."  That exception includes false entries in required records and conspiracy to sell a firearm knowing that the actual buyer is a prohibited person.  Ignoring that the plain meaning of the exception encompasses violations only of specific firearm statutes, the First Circuit decided that Mexico's common-law claims qualified and that Mexico sufficiently alleged that the defendants' actions were the proximate cause of harm.

The survival of America's gun industry, and thus the Second Amendment, depends on the resolution of those claims.  The Supreme Court should dispose of the case with an order pursuant to § 7902 of PLCAA: "A qualified civil liability action … shall be immediately dismissed by the court in which the action was brought or is currently pending."

Immigration

Institute of Economic Affairs Paper on Immigration and the Economic Liberty of Natives

The paper explains how immigration restrictions severely undermine both the "negative" and "positive" economic liberty of receiving-country natives. It also adapts my analysis of this topic for a British audience.

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The Institute of Economic Affairs, a prominent UK think thank, has published my paper on "Immigration and the Economic Freedom of Natives." Here is a summary of the main points:

• Immigration restrictions severely undermine the economic freedom of receiving-country citizens, as well as that of potential migrants.

• This impact affects both the 'negative' economic freedom valued by libertarians, classical liberals and many conservatives, and the 'positive' freedom most valued by many on the political left.

• Immigration restrictions harm negative economic freedom by depriving UK citizens of the opportunity to engage in valuable transactions with migrants, such as employing them, renting property to them, buying goods and services they produce, working for businesses established by immigrants, and more.

• Restrictions harm natives' positive freedom by depriving citizens of the production and innovation created by migrants, and especially their contributions to advances in technology and health care.

• These effects are exacerbated by the fact that immigrants disproportionately contribute to entrepreneurship and scientific innovation.

• When it comes to both positive and negative freedom, the effects of immigration restrictions are enormous – undermining both to a greater extent than virtually any other government policies adopted by liberal democracies such as the UK and US.

• Some argue that immigration actually threatens the economic freedom of natives. These concerns are largely overblown. Where valid, they can be addressed by 'keyhole solutions' less onerous than large-scale migration restrictions.

The paper expands on arguments developed in my 2023 Public Affairs Quarterly article on the same topic, and adapts them for a British audience.

IEA has also published a substack post (currently available only to subscribers) in which I summarize  the key themes of the paper. In July, I published an article in the Spectator on the economic benefits of immigration for Britain.

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