The Volokh Conspiracy Archive

Donald Trump has been ordered to pay a $355 million fine and has been barred from doing business in New York State for three years. Judge Arthur Engoron ordered Trump to pay essentially all of his cash reserves of $400 million, which fine if upheld would force Trump to sell some of his real estate holdings to raise cash to live on. Once interest is added on the total fine will rise to $450 million. This is all on top of an $83.3 million fine Trump must pay for allegedly defaming the writer E. Jean Carroll. The fines in total could deprive Trump of between 11% and 13% of his wealth.

Trump's adult sons Donald Jr. and Eric have also been fined, and they are barred from doing business in New York State for two years. Ivanka or Melania Trump could legally run the Trump businesses for the next two years, but Judge Engoron appointed retired U.S. District Judge Barbara Jones to continue in her role as an "independent monitor" of the Trump business empire but expanded her authority to review financial disclosures before they are submitted to third parties. Judge Jones can hire an independent director of compliance, and she has the authority to compel Trump to sell some or even all of his businesses down the road. This is all punishment for Trump allegedly committing fraud by falsely in inflating and deflating the value of his real estate assets to pay lower state taxes and to receive more favorable loans from banks.

The New York State laws used to go after Trump have NEVER been used in this way, historically, and while Trump may owe some back state taxes, if Judge Engoron is right, not a single bank claimed that it had been defrauded by Trump in the loans it had made to him. This is truly a victimless crime.

Bankers took the stand at Trump's civil trial testifying that they would have gladly made loans to Donald Trump given his extraordinary success as a businessman. It must also be noted that the banks that made loans to Trump did not take his assessment of the net worth of his assets at face value but made their own independent assessments of the value of Trump's assets. This is apparently standard practice in the New York State real estate market where borrowers often overstate the value of their assets.

The bottom line is that a rarely used New York State penalty has been twisted into a tool for a grossly excessive fine to get Donald Trump because of his political views. More seriously, the completely inappropriate appointment of Judge Jones as an "independent monitor" who can micromanage the Trump business, which she is not competent to do, and to even order the dissolution of the Trump Business in New York State. This outcome was pursued by Letitia James, a politically ambition Democrat, who is the Attorney General of New York State, and who hopes to win a future Democratic primary for Governor of or Senator from New York State.

Ms. James and Judge Engeron have essentially turned a vaguely worded New York State law into a modern day Bill of Attainder targeted at Donald Trump both for political gain and because they despise his political views and desperately want to call his truthfulness into question as he runs for President of the United States inn 2024. In doing this, the have violated Trump's First Amendment right to freedom of speech and of the press; his Fifth Amendment right not to be deprived of liberty or property without due process of law; his Fifth Amendment right not to have property taken away from him except for a public use with just compensation being paid; his Eighth Amendment right not to be made to pay an excessive fine; his Article IV, Section 2 right as a citizen of Florida to do make and enforce contracts in New York on the same terms as are other New Yorkers; and his Fourteenth Amendment right to be free to pursue an occupation without unnecessary and burdensome regulation.

The civil fraud judgment against Donald Trump is a travesty and an unjust political act rivaled only in American politics by the killing of former Treasury Secretary Alexander Hamilton by Vice President Aaron Burr. If the New York State appellate courts do not reverse this judgment, the U.S. Supreme Court MUST grant cert on this case and reverse Judge Engeron's outrageous decisions. National, presidential politics will be permanently altered if a local State's legal system can be used in this way against candidates for President of the United States. This case raises a national issue of profound importance and if the New York State appellate courts do not address it, the U.S. Supreme Court MUST!

From Cooper v. Dolgencorp, LLC, decided Thursday by the Sixth Circuit, in an opinion by Judge Mathis, joined by Judges Moore and Murphy:

In 2016, Cooper began working for CCCI as a delivery merchandiser [who delivered products to customer stores]. Prior to CCCI hiring Cooper, he had already been diagnosed with Tourette Syndrome. Tourette Syndrome causes unwanted, involuntary muscle movements and sounds known as "tics." For Cooper, his Tourette Syndrome has a rare tic symptom known as coprolalia. The condition causes Cooper to use obscene and inappropriate vocalizations, including profanity (bitch) and a racial slur (nigger)….

This led to repeated customer complaints, and eventually led Cooper's employer (Coca-Cola Consolidated, Inc., or CCCI) to reassign Cooper to a lower-paying non-customer-facing warehouse position, $18.96/hour instead of $20.38/hour. (Cooper's doctor had concluded that Cooper could work as a driver, but "Needs to be present with another driver," presumably because that was the only way he could avoid customer contact.)

Cooper sued under the Americans with Disabilities Act, under which

(1) The plaintiff bears the burden of establishing that he or she is disabled. (2) The plaintiff bears the burden of establishing that he or she is "otherwise qualified" for the position despite his or her disability: (a) without accommodation from the employer; (b) with an alleged "essential" job requirement eliminated; or (c) with a proposed reasonable accommodation. (3) The employer will bear the burden of proving that a challenged job criterion is essential, and therefore a business necessity, or that a proposed accommodation will impose an undue hardship upon the employer.

The court concluded that CCCI was entitled to summary judgment:

2/18/1988: Justice Anthony Kennedy takes judicial oath.

I was revising a paper on the relationship between equity and property, and I had occasion to look up this classic line from Justice Scalia:

I am not so naive (nor do I think our forebears were) as to be unaware that judges in a real sense "make" law. But they make it as judges make it, which is to say as though they were "finding" it—discerning what the law is, rather than decreeing what it is today changed to, or what it will tomorrow be.

James B. Beam Distilling Co. v. Georgia, 501 U.S. 529, 549 (1991) (Scalia, J., concurring in the judgment).

Two justices joined Justice Scalia's opinion. Without looking, can you guess which ones?

From Teising v. State, decided Thursday by the Indiana Supreme Court, in an opinion by Justice Molter:

Article 6, Section 6 of the Indiana Constitution requires that all township officers "shall reside within their respective … townships," and they forfeit their position if they don't. Defendant Jennifer Teising resided within West Lafayette's Wabash Township when she was elected township trustee in November 2018. But after the COVID–19 pandemic spread to Indiana, she sold her home, bought a travel trailer, and left for a nomadic life while continuing to work remotely. Sometimes she stayed in Florida, sometimes she stayed with friends in Anderson, Indiana, and sometimes she traveled. But she hardly ever stayed in Wabash Township. And despite growing controversy over her residency, she refused to resign.

Usually, the State resolves residency disputes like this through a civil quo warranto action to remove the official from office. But here it chose stronger medicine. It convened a grand jury, which indicted Teising for twenty–one counts of theft on the theory that by spending most of her time outside the township, she forfeited her office. And once she forfeited her office, none of the twenty–one paychecks she kept collecting belonged to her even though she continued working as the trustee remotely. After the parties agreed to a bench trial, the trial court convicted her on all counts.

A unanimous Court of Appeals panel vacated the convictions in a published opinion. The panel concluded Teising never stopped complying with the constitutional residency requirement because she never established a legal domicile somewhere else, and she therefore didn't forfeit her office. We now grant transfer, and we too conclude Teising's convictions must be vacated, but for a different reason. We don't need to reach the constitutional residency question because, either way, the State didn't introduce evidence that Teising acted with the criminal intent required for theft—evidence that she believed she wasn't supposed to continue collecting her salary for the work she kept performing remotely. And without criminal intent, the only available remedies were civil, such as a quo warranto action to remove Teising from office or a conversion claim to recover allegedly misappropriated money….

2/17/1801: House of Representatives breaks tie in Electoral College, and selects Thomas Jefferson as President.

"Oriental" has meant different things at different times and in different places. The Orient Express went to Istanbul. More recently, and perhaps in the U.S. more than in Europe, "Oriental" has largely referred to East Asians. Indeed, Ritchey Produce Co., Inc. v. State (Ohio 1999), turned on whether a Lebanese-American was entitled to benefit from an affirmative action program that covered "Orientals." The court said "no," endorsing a rule that defined the term to refer to "all persons having origins in any of the original people of the Far East, including China, Japan and Southeast Asia."

But to my knowledge, only one country's official name actually labels it Oriental. What is that?

Tucker Carlson. (Brian Cahn/Zuma Press/Newscom)

During his visit to Russia to interview Vladimir Putin, right-wing former Fox News talk show host Tucker Carlson made waves by praising the supposed abundance and low prices at a Moscow supermarket. He said the experience "radicalized" him against US leaders, and that Moscow is "so much nicer than any US city."

How can we tell if Carlson is right about life in Russia being better than in the US? Try the evidence of people voting with their feet. When people choose what government they want to live under through foot voting, they have much stronger incentives to make good decisions than ballot box voters - or media pundits.

Since 2022, over 1 million Russians have fled Vladimir Putin's increasingly repressive regime. They are willing to go to even such relatively poor countries as Armenia and Kazakhstan. Many thousands have tried to move to the US by way of the Mexican border, despite the very real risk of detention and deportation. Many more would emigrate to the US and other Western nations if only we would let them (as we should!).

By contrast, Americans who want to emigrate to Russia are few and far between. Last year, the Russian government floated a plan to build a village for disaffected expatriate American right-wingers. But they seem to have quietly mothballed the idea, probably for fear it wouldn't attract any significant number of takers.

Why are so many Russians eager to flee to the West? One major factor is that, despite Carlson's claims, Russia is actually a poor nation. As of 2022, per capita GDP was about $15,270, less than one-fifth the US figure of $76,300. And that's despite the fact that Russia has some of the world's largest deposits of oil and precious metals. The average monthly wage in Russia is about 73,800 rubles (an annual salary of about $9700 at current exchange rates). Some 20% of Russian households lack indoor plumbing.

It's also worth noting that Moscow is the richest city in Russia. And even there, Carlson (like many other visiting westerners) probably didn't see much of the parts where ordinary people live, as opposed to sites frequented by foreign tourists. Had he done so (as I have), he would have seen Third World-like poverty. And that poverty is much worse in smaller cities and in rural areas.

One of Carlson's errors was at least somewhat understandable. I once made a similar one, myself. I am a native of what was then the Soviet Union, and a native speaker of Russian. Back in 1995, I visited Russia for the first time since emigrating in 1979. Like Carlson in 2024, I noticed that many prices were lower than in the US. When I pointed this out to a Moscow-based Russian relative of mine, she got angry: "Stop saying the prices here are low," she admonished me. "They are not low compared to our incomes."

She was right. Part of what I (and later Carlson) saw is the strength of the US dollar, which enjoys highly favorable exchange rates because many foreigners want to hold dollar-denominated assets as a "store of value" (by contrast, few non-Russians have a similar demand for rubles). Another relevant factor is that prices for many goods and services are lower in poor nations, in part because labor is much cheaper (having fewer alternative opportunities).

Relative to income, food prices in Russia are actually much higher than in the US, not lower. In 2021, the state-run news agency TASS (which certainly does not want to make the Russian government look bad!) reported that 75% of Russians spend half or more of their income on food. Things have likely gotten worse since then, with the inflation and shortages caused by the war against Ukraine. In the US, by contrast, the average American spends about 11.3% of disposable personable income on food. Even for the poorest quintile of the population, that rises to only 31%.

Even as Carlson was praising Russia's food abundance, the government was urging Russians to start growing their own bananas, to make up for anticipated shortages resulting from Putin's restrictions on imports. Perhaps Carlson can do a special program on how Russia's climate is great for raising bananas. Thanks to Putin, the country is on its way to becoming the world's greatest banana republic!

In addition to widespread poverty, Russia also has horrific repression. You can get up to 15 years in prison just for referring to the "special military operation" in Ukraine as a war. Just today, Russia's most prominent opposition leader, Alexi Navalny, died in prison. Other prominent dissenters, such as Vladimir Kara-Murza and Ilya Yashin are also behind bars, often under terrible conditions. Carlson claims to be a great free speech advocate. If so, he shouldn't be defending Putin.

Carlson also fantasizes about how the US government might draft his children to fight in Ukraine, even though there is no real prospect of any draft here. Russia, however, actually does have a draft, in which thousands of young men are forced to fight in an unjust war, primarily the poor and non-Russian minorities.

Growing repression and conscription are additional reasons why so many Russians are voting with their feet against their government. If you want to know what conditions in Russia are truly like, you should listen to them, not Tucker Carlson.

Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.

New on the Short Circuit podcast: The SCOTUS Ladies, Anastasia Boden and Elizabeth Slattery, join the panel to talk Humphrey's Executor and a prosecutor who won't chill on Netflix.

From Massachusetts judge Brian Davis's opinion Monday in Smith v. Farwell:

[T]his Court is the unhappy recipient of several legal memoranda filed by counsel for plaintiff Darlene Smith ("Plaintiff's Counsel") that cite and rely, in part, upon wholly-fictitious case law (the "Fictitious Case Citations") in opposing the motions to dismiss filed by defendants …. When questioned about the Fictitious Case Citations, Plaintiff's Counsel disclaimed any intention to mislead the Court and eventually pointed to an unidentified AI system as the culprit behind the Fictitious Case Citations. He has, at the same time, openly and honestly acknowledged his personal lack of diligence in failing to thoroughly review the offending memoranda before they were filed with the Court…. Having considered all of the facts and circumstances, and hoping to deter similar transgressions by Plaintiff's Counsel and other attorneys in the future, the Court will require Plaintiff's Counsel to pay a monetary sanction in the amount of $2,000.00….

On November 1, 2023, all counsel appeared in person before the Court for oral argument on the Motions to Dismiss filed by Defendants W. Farwell, Devine, Heal and the Town. Before turning to the substance of the parties' motions, the Court informed Plaintiff's Counsel of its discovery of the three Fictitious Case Citations and inquired how they had come to be included in Plaintiffs Oppositions. Plaintiff's Counsel stated that he was unfamiliar with the Fictitious Case Citations and that he had no idea where or how they were obtained. When asked who had drafted the Oppositions, Plaintiff's Counsel responded that they had been prepared by "interns" at his law office. The Court thereupon directed Plaintiff's Counsel to file a written explanation of the origin of the Fictitious Case Citations on or before November 8, 2023.

On November 6, 2023, Plaintiff's Counsel submitted a letter to the Court in which he acknowledged that the Oppositions "inadvertently" included citations to multiple cases that "do not exist in reality." He attributed the bogus citations to an unidentified "AI system" that someone in his law office had used to "locat[e] relevant legal authorities to support our argument[s]." At the same time, Plaintiff's Counsel apologized to the Court for the fake citations and expressed his regret for failing to "exercise due diligence in verifying the authenticity of all caselaw references provided by the [AI] system." He represented that he recently had subscribed to LEXIS, which he now uses exclusively "to obtain cases to support our arguments." He also filed amended versions of the Oppositions that removed the Fictitious Case Citations….

[At a later hearing, Plaintiff's Counsel] explained that the Oppositions had been drafted by three legal personnel at his office; two recent law school graduates who had not yet passed the bar and one associate attorney. The associate attorney admitted, when asked, that she had utilized an AI system (Plaintiff's Counsel still did not know which one) in preparing the Oppositions.

My new article, "The Constitutional Case Against Exclusionary Zoning" (coauthored with Josh Braver of the University of Wisconsin) is now available for free download on SSRN. It is also under submission to law reviews. The problem it addresses is, in my view, the most important constitutional property rights issue of our time, and one of the most significant constitutional issues of any kind, given the enormous harm zoning restrictions inflict. That's an admission against interest, as I have spent much of my career writing about public use and eminent domain.

Here is the abstract:

We argue that exclusionary zoning—the imposition of restrictions on the amount and types of housing that property owners are allowed to build— is unconstitutional because it violates the Takings Clause of the Fifth Amendment. Exclusionary zoning has emerged as a major political and legal issue. A broad cross-ideological array of economists and land-use scholars have concluded that it is responsible for massive housing shortages in many parts of the United States, thereby cutting off millions of people – particularly the poor and minorities - from economic and social opportunities. In the process, it also stymies economic growth and innovation, making the nation as a whole poorer.

Exclusionary zoning is permitted under Euclid v. Ambler Realty, the 1926 Supreme Court decision holding that exclusionary zoning is largely exempt from constitutional challenge under the Due Process Clause of the Fourteenth Amendment, and by extension also the Takings Clause. Despite the wave of academic and public concern about the issue, so far, no modern in-depth scholarly analysis has advocated overturning or severely limiting Euclid. Nor has any scholar argued that exclusionary zoning should be invalidated under the Takings Clause, more generally.

We contend Euclid should be reversed or strictly limited, and that exclusionary zoning restrictions should generally be considered takings requiring compensation. This conclusion follows from both originalism and a variety of leading living constitution theories. Under originalism, the key insight is that property rights protected by the Takings Clause include not only the right to exclude, but also the right to use property. Exclusionary zoning violates this right because it severely limits what owners can build on their land. Exclusionary zoning is also unconstitutional from the standpoint of a variety of progressive living constitution theories of interpretation, including Ronald Dworkin's "moral reading," representation-reinforcement theory, and the emerging "anti-oligarchy" constitutional theory. The article also considers different strategies for overruling or limiting Euclid, and potential synergies between constitutional litigation and political reform of zoning.

The paper is an example of cross-ideological collaboration. Josh Braver is a progressive and a living constitutionalist. I am a libertarian, generally sympathetic to originalism. We started discussing the issue of zoning after taking opposite sides of a debate over judicial review at the University of Wisconsin, sponsored by the Wisconsin chapters of the American Constitution Society and the Federalist Society. Although we differ on many other issues, we found that we agree on this one!

Most Americans understand that smoking is harmful. It remains a leading cause of preventable death in the United States. A growing number of Americans do not understand that vaping and non-combustible tobacco products are far less risky. In a recent article, Jacob James Rich and I explored why this might be.

One source of public misunderstanding could be that doctors are often unaware of the extensive research concluding that vaping, while not risk-free, is substantially less risky than smoking (such that were all smokers to switch to vaping, tens of thousands--if not millions--of premature deaths could be averted). While reports by the National Academy of Sciences and Public Health UK (among others) have concluded that vaping exposes users to significantly lower contaminant levels and is likely to be substantially less harmful than smoking, one recent study found that 60 percent of doctors believe all forms of tobacco are equally harmful.

While some medical professionals are simply unaware of what can be said about the relative risks of smoking versus vaping, others seem intent on spreading disinformation. For instance, here's a TikTok by a cardiovascular surgeon claiming that vaping "is significantly worse than cigarette smoking." This is an outrageous and unfounded claim. Worse, insofar as this message is internalized by current smokers, it could discourage them from switching to less harmful sources of nicotine.

[Note: Even if this claim is based upon experience with EVALI victims, suggesting that EVALI is a consequence of vaping generally, when EVALI has been linked to black-market THC vaping fluids containing vitamin E acetate, is still quite irresponsible. There is no documented case of EVALI that has been linked to conventional vaping products.]

It is one thing to discourage vaping, as it is not risk-free (and there is limited evidence about its long term effects). It is quite another to suggest that vaping is equal or worse than smoking. The latter is misinformation--and the sort of misinformation that could cost lives.

Alexei Navalny, Russia's most prominent opposition leader, died in prison today at the age of only 47. Given that he was previously poisoned (likely at Vladimir Putin's order), it seems likely that his death was ordered by Putin, as well.

In 2021, after being treated for the poisoning in Germany, Navalny bravely returned to Russia, despite knowing he was likely to be arrested and imprisoned on arrival (as indeed happened). The charges against him were obviously trumped up; his real crime was opposing Putin's dictatorship.

Navalny devoted his life to opposing Putin's brutal regime, despite the grave risks of doing so. At times, he took some dubious positions in order to appeal to Russian nationalists, as with his waffling on the issue of Russia's seizure of Crimea, which he called illegal and unjust, but also said should not be reversed. But there can be no doubt Navalny stood for a vastly freer and more democratic Russia than now exists. Even in prison, he denounced Putin's war against Ukraine and called for the withdrawal of Russian forces from Ukraine's internationally recognized borders (which would require withdrawal from Crimea, as well).

Navalny's views are not above criticism. But Westerners who think he didn't go far enough in his opposition to Putin should ask themselves if they would have had the courage to do as much as he did, were they in his place - knowing the price of dissent could well be imprisonment and death.

It is well to remember that Navalny was far from the only political prisoner in Putin's Russia. Opposition leaders such as Vladimir Kara-Murza and Ilya Yashin remain in prison right now. Western nations should press for their release.

Navalny's death should also remind us of the broader moral and strategic stakes in Putin's war against Ukraine, which Navalny, Kara-Murza, Yashin, and other Russian dissenters rightly condemned. In addition to saving Ukrainians from brutal occupation and oppression, a Ukrainian victory is also the best hope for a freer Russia. The US and its allies can help by such measures as giving Ukraine the military aid it needs, and confiscating Russian government assets in the West, to use for that purpose.

We can also open our doors to Russians fleeing Putin's regime, as many nations have done for Ukrainian refugees. As Ilya Yashin (another opposition leader imprisoned for resisting Putin), urges us, we should not forget that " hundreds of thousands of [his] countrymen left their homes behind, refusing to become murderers on the orders of the government," and should "extend a hand" to Russians who oppose the regime.

I am happy to pass along this announcement from the Federalist Society:

The Federalist Society offers several different kinds of fellowships for aspiring academics to complete at top law schools. One is a one- or two-year full time research fellowship (Olin-Searle-Smith-Darling fellowship), one is a part-time research fellowship, and one is a full time clinical fellowship. More information may be found at the links. The application deadline for all three is March 15.

2/16/1833: Barron v. City of Baltimore decided.

From K.B. v. D.O., decided today by the Massachusetts Appellate Court (in a nonprecedential opinion by Justices Vickie Henry, Andrew D'Angelo & Christopher Hodgens):

The plaintiff is an investigator for the Department of Children and Families. The plaintiff investigated reports that the defendant had abused or neglected her children. The plaintiff's affidavit asserted that she was "scared for [her] physical safety" because the defendant had posted "continuous threats towards [the plaintiff] online." The threats the plaintiff alleged included the defendant posting on social media a picture of the plaintiff as a juvenile; posting the plaintiff's husband's obituary, which included the names of the plaintiff's children; "using [the plaintiff's] photo to slander government agencies;" and stating that "she will do whatever it takes to take [the plaintiff] down." …

The plaintiff testified that the defendant's actions caused her to feel "terrified, intimidated, fearful and anxious." … The plaintiff also testified that the defendant posted a statement that read, "Closer to her children every single day. That must really freak you out, [plaintiff]. You are probably wetting yourself right now." Finally, the plaintiff alleged that the defendant posted a news story about DCF misconduct, with a comment that the plaintiff was "probably involved." [Based on this, the judge issued a harassment prevention order.] …

A lone person walks atop rubble in the wake of the war in Israel and Palestine — Rubble in Gaza. October 2023. (Apaimages/SIPA/Newscom)

Yesterday, the Biden administration granted temporary refuge to Palestinian migrants currently in the United States, who might otherwise be subject to deportation. The grant of Deferred Enforced Departure status (known as DED) allows about 6000 Palestinians to remain in the US for an additional 18 months, and the Department of Homeland Security will allow these people to work in the US during that time, as well.

The justification for this measure is obvious. As the White House statement on the subject puts it, because of the ongoing war between Israel and Hamas, "humanitarian conditions in the Palestinian territories, and primarily Gaza, have significantly deteriorated." That surely understates the point: thousands of people have been killed, and much of Gaza leveled. There is less extensive, but still significant, violence on the West Bank. In addition, Gaza Palestinians are subject to Hamas's brutal tyranny, which is awful, even aside from the war.

In my view, the primary blame for this situation falls on Hamas for using Gaza as a base for its horrific terrorist attacks, and then using the civilian population as human shields. But, regardless of the blame, it would be wrong to force Palestinian migrants (or anyone) to return to a deadly war zone - or to live under a system of quasi-medieval oppression.

There is, however, a contradiction in the Biden Administration's position here. The same reasoning that justifies the grant of DED status to Palestinians currently in the US also justifies opening the door to civilians trying to flee Gaza. After all, they too are suffering from the "deterioriation" in "humanitarian conditions." Yet both Western and Arab nations have largely refused entry to Palestinian refugees fleeing the violence.

In a previous post, I explained why opening the door to Gaza refugees is the right thing to do on both moral and strategic grounds: it can save thousands of people from needless suffering and death, while also making it easier for Israel to defeat Hamas. I also addressed various possible counterarguments, such as claims that Gaza Palestinians are collectively responsible for Hamas atrocities, and arguments that they pose a security risk (the risk is actually extremely small).

Since I wrote my piece, related arguments have been advanced by my co-blogger and George Mason University colleague Eugene Kontorovich, in a January 21 Wall Street Journal op ed:

Gaza is unique among modern war zones. Despite being the center of a conflict fought in dense urban areas, it hasn't produced waves of refugees leaving for neutral countries. This has been deliberate, the result of policies by Hamas and Egypt tacitly supported by the U.S….

Fleeing a war zone and seeking asylum in a neutral country is a human right enshrined in the 1951 United Nations Refugee Convention. If civilians hadn't been allowed to flee past conflicts, their death tolls would have been even higher.

Yet three months after Oct. 7, fewer than 1,000 people—either foreign nationals or wounded—have been allowed by Egypt and Hamas to leave Gaza. In Israel this month, Secretary of State Antony Blinken rejected the possibility of Israel helping Gazans who wish to escape the conflict to do so. But he also complained that the war's toll on Gaza civilians was "far too high" and echoed earlier demands that Israel "do more" to reduce the collateral damage caused by Hamas's hiding behind its population….

Why would anyone other than Hamas—especially the U.S.—support locking Gazans in like North Korea does? Since 1948, Arab states and the U.N. have refused to treat Palestinians like ordinary refugees, keeping them in a unique intergenerational limbo to provide a reservoir of resentment against Israel. The U.S. hasn't opposed the flight of refugees in other conflicts. The Biden administration continues to treat Gazans not as people, but as serfs indentured to the land.

Letting Gazans leave not only would reduce human suffering; it would provide a test and incentive for postwar governance. Refugees often return to their home countries when governance stabilizes after a conflict. For this to happen, the new civilian administration would have to make it a place where Gazans want to live, not where they are prevented from leaving.

Eugene and I differ over many issues. But I think he is absolutely right here. For a combination of moral, legal, and practical reasons, it's wrong to trap Palestinian refugees in Gaza, as if they were Hamas's serfs. Eugene is also right to suggest the US use its large-scale aid to Egypt as leverage to pressure the Egyptian government to let Gaza refugees leave (a policy I advocated in my October piece). I am not sure Eugene would take the additional step of urging the US and other Western nations (as well as Egypt) to accept Gaza refugees. But this too is justified for reasons I outlined in my earlier post.

The Volokh Conspiracy

President Trump's Kafkaesque Civil Trial in New York State

ADA Doesn't Require Employer to Keep Customer-Facing Employee Whose Tourette's Leads Him to Use Slurs

Today in Supreme Court History: February 18, 1988

Judges Make Law, But . . .

Prosecutor Claims Official Forfeited Office by Going Nomad, Prosecutes Official for Theft, for Cashing Paychecks

Today in Supreme Court History: February 17, 1801

Which Country Is Officially Called "Oriental"?

Tucker Carlson vs. the Evidence of Russians Voting with their Feet

Short Circuit: A Roundup of Recent Federal Court Decisions

$2000 Sanction in Another AI Hallucinated Citation Case

New Article on "The Constitutional Case Against Exclusionary Zoning"

When Doctors Are the Source of Public Health Misinformation

Alexei Navalny, RIP

Aspiring Academics: Apply for Fellowships from the Federalist Society

Today in Supreme Court History: February 16, 1833

Thursday Open Thread

Posts About Child Abuse Investigator Weren't "Harassment" That Could Be Enjoined

Biden is Right to Grant Temporary Refuge to Palestinian Migrants Already in US, but Should go Further

Recent Volokh Posts

Volokh Conspiracy Daily E-mail

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