Eugene Volokh's Blog, page 154

[Josh Blackman] More On Unpublished Opinions And En Banc Stratagems In The Fifth Circuit

For nearly four years, there was a never-ending drumbeat about how the Fifth Circuit was an existential threat to the rule of law. Yet, over the past two months or so, it has gotten very quiet. That giant sucking sound you hear, as Ross Perot might have said, is all of the cases flooding north to the First and Fourth Circuits.

Yet, the Fifth Circuit remains the most interesting circuit in the country. I recently blogged about an unpublished opinion concerning Planned Parenthood. I suggested that the panel's choice to make the opinion unpublished was an attempt to shield the case from en banc review.

Another case raises some similar issues.

On January 10, 2025, the Fifth Circuit issued a published opinion in United States v. Bell (23-50755). Four days later, there was a docket notation that (at least) one judge has held the mandate. On the Fifth Circuit, any judge can hold the mandate. Once such a hold is made, there is a signal to the parties that rehearing is more likely. On January 24, 2025, the United States filed a petition for panel rehearing. (The government did not file a petition for rehearing en banc). On January 27, 2025, the Fifth Circuit requested the defendant to respond to the petition. The response was filed on January 31.

Fast-forward to February 28. There were several docket notations in rapid succession. First, the published opinion from January 10 was withdrawn. Second, an unpublished opinion was filed in its place. I've generated a redline version. There were many substantive changes made. Third, the judgment was entered and filed. Fourth, it was revealed that a member of the Fifth Circuit requested a poll for rehearing en banc, and that poll failed (more on the vote later). And fifth, the order withholding the issuance of the mandate was vacated, meaning that one or more judges released the hold.

So the bell has tolled for Bell, barring certiorari. Still, this incident provides some proof that making a decision "unpublished" is a means to avoid en banc review.

But there is much more to this situation.

The government only filed a petition for panel rehearing. DOJ did not seek a petition for rehearing en banc. But at least one member of the en banc court sua sponte asked for a poll, as the rules permit. The order states:

The court having been polled at the request of one of its members, and a majority of the judges who are in regular active service and not disqualified not having voted in favor, on the Court's own motion, rehearing en banc is DENIED. In the en banc poll, five judges voted in favor of rehearing (Judges Jones, Smith, Duncan, Engelhardt, and Oldham), and twelve judges voted against rehearing (Chief Judge Elrod and Judges Stewart, Richman, Southwick, Haynes, Graves, Higginson, Willett, Ho, Wilson, Douglas, and Ramirez).

Judge Ho, who concurred in denial of rehearing wrote a brief statement:

Our court's internal operating procedures expressly permit rehearing en banc "whether or not a party filed a petition." 5th Cir. R. 40 I.O.P. Our procedures even observe that we "frequently" grant en banc at the request of "a judge of the court rather than a petition by the parties." Id. See also Neese v. Becerra, 127 F.4th 601, 603 n.1 (5th Cir. 2024) (Ho, J., dissenting from denial of rehearing en banc).

. . .  Despite all of this, it may be tempting at times to question an en banc poll where "the losing side chose not to seek en banc rehearing" (as was said in Neese). . . .

And it's precisely because we're flawed that we should apply the same principles no matter how popular (or not) the call for en banc. It was said in Neese that "[t]he poll failed 16–1." That vote might be a nightmare for those who fear being an outsider. Cf. C.S. Lewis, The Inner Ring (1944), available at https://www.lewissociety.org/innerring/. But judges swear an oath to uphold the law, without fear or favor. A call for en banc can be unpopular yet principled. Cf., e.g., Coral Ridge Ministries v. So. Poverty Law Ctr., _ U.S. _ (2022) (Thomas, J., solo dissent from denial of certiorari); Ben-Levi v. Brown, 577 U.S. 1169 (2016) (Alito, J., solo dissent from denial of certiorari).

For those who do not follow the Fifth Circuit's en banc docket closely (and why would you not!?) Neese v. Becerra was decided on January 31. In this case, the Fifth Circuit voted 16-1 to deny en banc review in a challenge to a Biden-era transgender rule. Only Judge Ho voted to grant review. Judge Duncan concurred in the denial of rehearing en banc, joined by Judges Jones, Smith, Willett, Oldham, Engelhardt, and Wilson. (Five of those seven voted to rehear Bell.) Judge Duncan wrote:

Even though the losing side chose not to seek en banc rehearing, one judge called for an en banc poll. The poll failed 16–1. That should surprise no one, because there was no plausible reason to rehear this case.

Judge Ho replied to Judge Duncan:

A brief response to my concurring colleagues: The fact that Executive Branch officials have dutifully done their job doesn't mean that we needn't do ours. Nor is our job obviated by the fact that Plaintiffs calculated (correctly, as it turns out) that a rehearing petition would not be an efficient use of their resources. Our rules plainly authorize us to rehear cases en banc on our own motion, precisely to alleviate litigants of unnecessary litigation burdens. See Fed. R. App. Proc. I.O.P. 40 ("Requesting A Poll On Court's Own Motion"). The only question is whether a particular case warrants en banc.

By denying rehearing en banc, our court today leaves on the books a published, precedential ruling that overturns the district court's dutiful efforts and validates administrative overreach in an area of profound sensitivity. I've previously expressed my concerns about allowing government officials to engage in procedural stratagems to avoid judicial review. See U.S. Navy SEALs 1-26 v. Biden, 72 F.4th 666, 677 (5th Cir. 2023) (Ho, J., dissenting) (citing Tucker v. Gaddis, 40 F.4th 289, 293 (5th Cir. 2022) (Ho, J., concurring)). Our decision today continues the pattern.

And we're not quite done. On February 26, 2025, the Fifth Circuit denied en banc review in Spring Siders v. City of Brandon, Mississippi. Here, the en banc poll was 15-2. Chief Judge Elrod and Judge Ho would have granted rehearing. Judge Ho wrote a solo dissent. Judge Oldham concurred in the denial of rehearing en banc, which was joined by Judges Jones, Smith, Willett, Duncan, Engelhardt, and Wilson. This septet is the same bloc that concurred in Neese, and includes the same quintet that dissented in Bell. You can see what Judge Ho was getting at by citing C.S. Lewis's "The Inner Ring." I need to do a more careful study of voting blocs on the en banc court.

Judge Oldham's opinion contends that en banc review was not appropriate in Spring Siders:

If this case implicated the First Amendment's Religion Clauses, the result might have been different. But rhetorical flourish is no substitute for the facts and law in the case before us.

Judge Ho, once again, replies:

I get that my concurring colleagues are content to just let this matter go to trial. But that seems unnecessarily grudging to me. "The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury," warranting preliminary injunctive relief in advance of trial. Elrod v. Burns, 427 U.S. 347, 373 (1976). See also Opulent Life Church v. City of Holly Springs, 697 F.3d 279, 295 (5th Cir. 2012) (same). Maybe Siders will someday prevail at trial. But until then, her right to evangelize will just have to wait.

There is a lot going on here. The interpersonal dynamics of the Fifth Circuit are unlike any other court in the country, even the U.S. Supreme Court. I realize everyone is focused now on the (yawn) Fourth Circuit and the (snooze) First Circuit. But the real action is deep in the heart of Texas.

The post More On Unpublished Opinions And En Banc Stratagems In The Fifth Circuit appeared first on Reason.com.

[Josh Blackman] Washington's Neutrality Proclamation And Trump's Ukrainian Proclamation

During the American Revolutionary War, France made the strategic decision to assist the fledgling United States. A primary, if not motivating factor, was that France sought to weaken its adversary Great Britain. In effect, the American Revolutionary War became something of a proxy conflict between Great Britain and France. I'm not sure the French monarch had much of an abstract interest to support an uprising by a ragtag bunch of colonists against another colonial superpower. Still France's support of the Continental Army was pivotal. But for this support, we might still be paying taxes on our tea.

France benefited from the American victory. It is no coincidence that the treaty of peace between Great Britain and the United States was signed in Paris. France became the United State's greatest supporter. America sent its top diplomats, John Adams and Thomas Jefferson, to Versailles.

Yet, the French Monarch's support of American war efforts may have had an unintended consequence--as military intervention often does. The American Revolution set the fuse of revolutionary efforts around the world. The French revolution was a byproduct of the American Revolution.

Imagine the counterfactual. What if the French monarch decided to not assist the Americans, and Great Britain put down the domestic violence. (That would be an actual insurrection!) Would the French Revolution have ever succeeded? Who could ever know for sure. But reality is known, and the French monarch's support of revolution in America contributed to the end of the monarchy. And heads rolled.

Fast-forward to April 1793. War broke out between Great Britain and France. What does the United States do? At the time, many Americans felt a strong sense of loyalty towards France, especially in light of their support for the Continental Army. Likewise, many Americans felt a strong sense of hostility towards Great Britain. Wouldn't it make the most sense to support France?

President George Washington made a fateful decision: he issued the Neutrality Proclamation. The United States, and the American people, would play no role in the conflict. This proclamation today is studied largely from the perspective of the separation of powers. Alexander Hamilton as Pacificus argued that Washington had the executive power to issue the proclamation. James Madison as Helvidius argued that Congress, and not the President, had the power to set foreign policy. But beyond these legal issues, Washington made a political judgment. He deemed it better to stay neutral, even at the cost of alienating America's staunchest ally. Washington recognized that in the field of foreign affairs, alliances are fluid. Allies become enemies and enemies become allies. These relationships are not fixed in stone, but wax and wane based on present-day circumstances. Several months after the Proclamation, France recalled Citizen Genet.

I think history has vindicated Washington's political judgment as an important act of statecraft. But in modern times, Washington's vision has been obscured. Institutions like the United Nations and NATO are premised on the notion that all members must treat other members equally in perpetuity. And after World War II, there have been a never-ending string conflicts where powerful nations exert military force to promote some aspirational goal. In each case, those conflicts have been largely unsuccessful at the cost of much bloodshed. Korea. Vietnam. Afghanistan. Iraq. And so on.

I write this as a reformed Hawk! If you had talked to me in 2002 or 2003, I would have said the Bush Doctrine was just, and the United States had the moral cause to spread democracy around the globe. The events of the last decade or so have convinced me that model is so badly flawed. How many Americans died in Afghanistan over the course of two decades? And what happened as soon as Americans pulled? The Taliban resumed power.

This background brings me to the current conflict in Ukraine. I don't pretend to possess any special knowledge about foreign policy. But from my narrow viewpoint, I see not a revolution of foreign policy, but a restoration. Trump is doing what Washington recognized early on: it will no longer be the policy of the United States to support military efforts abroad unless those conflicts directly advance American interests. Trump said, "I'm not aligned with Putin. I'm not aligned with anybody. I'm aligned with the United States of America." The failures of the past century provide ample support for Trump's view. Elites will howl that we are abandoning our allies and post-World War II settlements, and so on. These relationships are not fixed in stone, but wax and wane based on present-day circumstances.

To be sure, there will likely be a tragic loss for the Ukrainians. But those losses are compounded on top of so many more losses over the past several years. From the outset, this was a futile war that could never be won by Ukraine. At most, this conflict could have led to a fragile stalemate that could explode at any time. When Trump says the war could have been avoided, he means that Ukraine should have simply surrendered a war it could not win, and relinquished the territory that was sought by Russia. Treatises of law review articles about international law says that countries do not barter territory anymore. Says who? Law professors?

At least in ancient times, when a larger nation threatened a smaller nation, and demanded certain territory, the smaller nation faced a stark choice: surrender the land or suffer mass casualties and then surrender the land. The post-WWII settlement provides that other large nations will intervene to help the small nation to promote some aspirational principles. But that approach seldom works. And it pains elites to admit as much. Trump says what others are unwilling to say. He does so crassly, and in an insulting fashion, but stripped of the hyperbole, his message is a timeless one. (And I have to imagine Trump harbors some resentment against Zelensky in particular for the events leading to the first impeachment.)

I think restoration describes the Trump approach in more ways than one. On a panel, I recently praised DOGE as a way to destroy the Wilsonian civil service model, and bring back the Jacksonian spoils system. Another panelist said that it was wrong to praise Jackson, because the spoils system was so problematic. To be sure, there were problems with the spoils system, but I see far greater problems with the permanent bureaucracy.  If forced to choose between Wilson and Jackson, I know who I'd pick. Again, we are witnessing a restoration, not a revolution.

The post Washington's Neutrality Proclamation And Trump's Ukrainian Proclamation appeared first on Reason.com.

[Jonathan H. Adler] What the Supreme Court Said about Dellinger v. Trump in Seila Law v. CFPB

[A district court judge has concluded that President Trump cannot remove the head of the Office of Special Counsel without cause. Supreme Court review is inevitable.]

Last night, Judge Amy Berman Jackson held that President Trump's removal of Hampton Dellinger as the Special Counsel of the Office of Special Counsel was unlawful. [Note, this involves a specific office in the federal government, and not "special counsels" like Robert Mueller appointed to investigate alleged executive branch wrongdoing.]

in Dellinger v. Bessent, Judge Jackson rejected the Trump Administration's argument that the statutory provision barring the removal of the  Special Counsel without cause unconstitutionally constrains the President's authority to remove executive branch officers. She wrote:

The Court finds that the statute is not unconstitutional. And it finds that the elimination of the restrictions on plaintiff's removal would be fatal to the defining and essential feature of the Office of Special Counsel as it was conceived by Congress and signed into law by the President: its independence. The Court concludes that they must stand.

The Department of Justice has already filed its notice of appeal, and eventual Supreme Court review seems assured.

With that in mind, it is interesting to note what the Supreme Court said about the Office of Special Counsel in Seila Law v CFPB. In concluding that Congress could not protect the head of the CFPB from removal without cause, Chief Justice Roberts addressed other agencies headed by single individuals, including the OSC. He wrote:

the supporters of the CFPB point to the Office of the Special Counsel (OSC), which has been headed by a single officer since 1978. But this first enduring single-leader office, created nearly 200 years after the Constitution was ratified, drew a contemporaneous constitutional objection from the Office of Legal Counsel under President Carter and a subsequent veto on constitutional grounds by President Reagan. See Memorandum Opinion for the General Counsel, Civil Service Commission, 2 Op. OLC 120, 122 (1978); Public Papers of the Presidents, Ronald Reagan, Vol. II, Oct. 26, 1988, pp. 1391–1392 (1991). [FN7: An Act similar to the one vetoed by President Reagan was eventually signed by President George H. W. Bush after extensive negotiations and compromises with Congress. See Public Papers of the Presidents, George H. W. Bush, Vol. I, Apr. 10, 1989, p. 391 (1990).] In any event, the OSC exercises only limited jurisdiction to enforce certain rules governing Federal Government employers and employees. See 5 U. S. C. §1212. It does not bind private parties at all or wield regulatory authority comparable to the CFPB.

As this passage indicates, there are potential grounds for distinguishing this case from prior decisions upholding and rejecting limitations on the President's removal authority. On the one hand, the Office of Special Counsel is within the executive branch and is headed by single individual, like the CFPB. Thus the Court could decide in favor of President Trump without overturning Humphrey's Executor (at least not in this case).

On the other hand, the Office of Special Counsel has more limited responsibilities, and the Special Counsel might even be an inferior officer. Thus the Supreme Court could potentially uphold the removal restriction by relying upon Morrison v. Olsen and United States v. Perkins, without undercutting Seila Law or foreclosing the opportunity to revisit Humphrey's Executor in a later case.

Note that Chief Justice Roberts' opinion addressed the constitutionality of limitations on removal for the head of the Federal Housing Finance Agency (FHFA), but  offered fewer grounds for distinguishing the two agencies. In short order the Supreme Court considered  the FHFA's removal limitations and held them unconstitutional in Collins v. Yellen.

As I have written here and in Civitas Outlook, the Supreme Court is almost certain to revisit Humphrey's Executor within the next year. And while this may be the first of the Trump removal cases the Supreme Court has to decide, it may not be the one that puts Humphrey's Executor in the crosshairs.

The post What the Supreme Court Said about Dellinger v. Trump in Seila Law v. CFPB appeared first on Reason.com.

[Josh Blackman] How Will Chief Justice Roberts Split The Baby In Dellinger?

[Roberts will find that the removal was unlawful, but that the court lacks an equitable cause of action to reinstate it, leaving backpay as the only available judicial remedy.]

I know it is conventional wisdom that the Supreme Court will overrule Humphrey's Executor. As I joked on a recent panel, Humphrey's Executor, like William Humphrey, is dead. (And I have his death certificate to prove it.) Yet, I am not so sure the Court will actually pull the trigger on Humphrey's Executor. In early February, I wrote that Roberts and Justice Barrett would save Humphrey's Executor as a way to repudiate Trump himself. They might overrule the case at some future time. But not in the first few months of the Trump Administration. That would be seen as an unconditional surrender to the new regime.

But how can the Chief Justice salvage the situation? What will be the John Roberts Blue Plate Special? There are so many classics! Giving Congress another chance to revise the Voting Rights Act. Upholding the individual mandate as a tax on the uninsured. Allowing states to opt into the Medicaid Expansion. Blocking the rescission of DACA until the government considers the reliance interests. Blocking the census question until the government takes further action. Blocking the congressional subpoena for Trump's tax returns until it follows some incoherent test. Ruling that the eviction moratorium is unlawful, but giving the Administration a chance to stop enforcing it. And so on. Roberts's legacy will be a series of too-cute-by-a-half rulings that resolved the precedent at hand without setting any actual meaningful precedent. None of these rulings will be remember once he leaves his court. His impact will fade quicker than Justice Kennedy's.

I think I figured out what Roberts's play will be. As best as I can recall, the presidential removal cases that have come to the Supreme Court did not concern re-instatement. Rather, Meyers and Humphrey sought backpay. So in all regards, the Walter Dellinger case, which seeks reinstatement, is novel. Dare I say, unprecedented. (To be clear, Dellinger argues that he was never legally fired, since Trump did not show cause, so he does not need to be reinstated, but I still think the effect of the remedy has to be one of reinstatement.)

Justice Gorsuch's dissent in the Hampton Dellinger case contended that the Court lacks an equitable cause of action to order reinstatement. I think he is correct.

What will John Roberts do? The Chief Justice can hold that the removal of Dellinger was unlawful but the Court lacks the power of reinstatement. Dellinger, at most, can seek backpay in the Court of Federal Claims. Then, it is up to Trump to decide whether to recognize Dellinger as the lawful holder of the office. That way, Roberts does not need to stomach forcing the President to reinstate Dellinger. This move would resemble Chief Justice Taney's opinion in Ex Parte Merryman. Taney did not order Lincoln, or anyone else to release Merryman. Taney only ruled that the continued detention of Merryman was unlawful. Roberts would not actually issue an order against the President, but hope he complies with it voluntarily.

There is another, less dramatic variant. Generally, if an injury cannot be remedied, the Court lacks jurisdiction. Everyone remember California v. Texas? If the Court lacks the power to reinstate Dellinger, then an opinion finding his removal was unlawful would be advisory. Therefore, the entire case must be dismissed for lack of jurisdiction. Dellinger can start over in the Court of Federal Claims, which can then adjudicate the legality of the removal, with proper jurisdiction. That case might reach the Supreme Court in two years or so. At that point, no one will remember this conflict. This would probably be Justice Barrett's preferred option. Redressability is her favorite jurisdictional prong. Indeed, if Barrett fractures with Roberts, then the Chief has a green light to issue any sort of opinion he wants, since it will not command a majority of the Court.

The District Court issued a 67-page summary judgment opinion in favor of Dellinger. That case seems to be moving faster than the Wilcox NLRB matter. The race is on.

The post How Will Chief Justice Roberts Split The Baby In Dellinger? appeared first on Reason.com.

[Jonathan H. Adler] The California Bar Exam's February Fiasco

[An online administration meltdown and question leaks leave test takes frustrated and furious and others demanding answers.]

It appears the February administration of the California bar exam was a bit of a fiasco. Many trying to take the exam online were locked out and prevented from finishing, or in some cases even starting, the exam. The Bar planned for a retake, but it appears at least some questions were leaked online. A class action suit has already been filed and some are proposing provisional licensure for test takes as the mess is sorted out. The new exam was supposed to save the California Bar money, but it will not work out that way.

Paul Caron has assembled coverage of the mess over at TaxProf Blog in posts here and here, and will likely post follow ups as the story unfolds.

The post The California Bar Exam's February Fiasco appeared first on Reason.com.

[Josh Blackman] Today in Supreme Court History: March 2, 2016

3/2/2016: Whole Woman's Health v. Hellerstedt argued.

The post Today in Supreme Court History: March 2, 2016 appeared first on Reason.com.

[David Post] "Humiliating for Every American"

[Guest post from John Taylor, Episcopal Bishop of Los Angeles]

If anyone cares to defend yesterday's disgraceful display by our Mafioso-in-Chief, be my guest, in the comments below. Surely this crosses the line, even for the diehards. I've asked a thousand times on this blog: what can this guy do that would make his supporters disavow and disown him? [the "Murder on 5th Avenue in Broad Daylight" question] Perhaps this was it? Are there really no Republicans out there who have the courage to stand up and say: "All Americans should be deeply ashamed of what he has done in our name, and deeply ashamed of how he did it." No?

The text is by John Taylor, Bishop of the Episcopal Diocese of Los Angeles [and, interestingly, the former director of the Nixon Presidential Library]. Emphases are mine. /DP

#AmericanCoup Seeing Putin's boys bully a besieged freedom fighter in the Oval Office was humiliating for every American. Since there is no presidential precedent for the public brutalizing of an ally, we reach for fiction and Mayor Carmine DePasto, from the comedy "Animal House," and his summit with the dean of Faber College. "If you want this year's homecoming parade in my town," he says, "you have to pay." When the dean accuses him of extortion, the mayor replies, "Look, these parades are very expensive. You're using my police, my sanitation people, my three Oldsmobiles. So if you mention extortion again, I'll have your legs broken."

Musk can fire the White House speechwriters, too, because there's the Trump Doctrine for you. If Ukraine wants to be part of negotiations to end Russia's criminal war, it has to pay in the form of a share of its mineral rights. Since President Zelensky was allegedly rude today, Trump has threatened to cut off military aid and let more Ukrainians die.

Yet large as it was, today's incident was far more than it appeared. Trump and his mini-me Vance wrote the latest chapter in the biography of the United States as a world power. Periodically we have to decide what values we think our country should uphold in the world. We have arrived at another such moment. Everyone must ask themselves what kind of global citizen their country should be. It is work we must all do in the days and weeks ahead it we are to do our part to keep the American dream from entering a death spiral.

Readers should not assume that everyone disagrees with Trump. Millions of Americans opposed the U.S. entering World War II to help Europe against Hitler, history's greatest evildoer. Some were Nazi sympathizers. Others just thought it was none of our business. Most leaders were internationalists in the Cold War, and Americans by and large went along. We rebuilt Japan and Germany and avoided war with the Soviets. We also bred cynicism by leaving bloody footprints from Chile to Vietnam, sometimes meaning well, sometimes not. George W. Bush's massive overreaction to the Sept. 11 attacks, leading to hundreds of thousands of deaths in Iraq and Afghanistan without making the U.S. safer, gave foreign policy itself a bad name, enabling Trump to sound like a peacenik by attacking our endless wars.

Making our way through the shadow of disgrace Trump casts requires us to think carefully and humbly. Notwithstanding the heretical teachings of Christian nationalists and apostolic reformists, God doesn't love us more than other people. We're not chosen or anointed. We've had moments of glory and deep disgrace. It has taken more than a quarter of a millennium to come anywhere near letting freedom ring for everyone.

A decent and indeed a Christian foreign policy would look out for our interests while promoting global security, encouraging economic and political liberalism where we can, addressing suffering through a generous foreign aid budget befitting the richest nation in the world, and leading on climate change mitigation and innovation. This is how a good nation counts its blessings. That's how we say thank you to God and sorry to those we hurt along the way.

Some argue that the U.S. always acts on behalf of its strategic and economic interests while just claiming we're for justice and democracy. I must disagree. Too many Americans have died fighting for other nations' freedom and sovereignty. But Trump has swept those values aside in favor of pure self-interest. Those who insist the U.S. has always been out for number one are carefully watching us every one during Trump's days of shame. We're finding out how much sadism and cruelty the American people will tolerate — and so far, we've tolerated quite a bit.

Trump is obviously paying Zelensky back for refusing to cooperate with dirty tricks against Joe Biden in the 2016 election. That is as deep as this individual's strategic vision goes. The rest of his foreign policy is equally thoughtless and toxic. Besides selling out Ukraine, his most significant move was depriving sick, starving people of foreign aid. Journalists such as Nicholas Kristof who are covering Trump's war on USAID can show you exactly where in the developing world Trump is likely to kill those in need. Yet he is doing it without significant public outcry. We know he doesn't care. The question is if the rest of us do — and how the rest of the world reacts.

Zelensky's first calls after his Trump beat down were to European leaders. One possible future is western Europe supporting Ukraine and deterring Russian conventional aggression on its own. Should that happen, Trump would say it was his idea all along. But China would reckon it as an invitation to conquer Taiwan. Its people deserve to be free, but according to Trump's rulebook, if they can't defend themselves, they're out of luck.

The alliances Trump is ripping apart like an angry kindergartner help keep the peace and limit the spread of the most dangerous weapons. Without them, aggressors will gobble up weaker nations. Non-nuclear powers will join the club faster than you can say enriched uranium. If the American people acquiesce in Trump's disgraceful behavior, his abandonment of the weakest among us, our country will end up as exactly what its harshest critics have always said: Out just for itself and its economic interests, or in this case Trump's. The Trump Doctrine will go on to light up a hundred wars. If the U.S. ever needs its friends again, no one will answer the phone. We'll be as lonely as Trump when he turns out the lights.

The post "Humiliating for Every American" appeared first on Reason.com.

[Jonathan H. Adler] The Case Against Taxing University Endowments

[Tax professor Erik Jensen suggests taxes on large university endowments are not as good idea as some people think.]

Some universities have multi-billion-dollar endowments. Should they be taxed? I am no tax expert, but I have long been concerned that the case for taxing endowments looks a bit like the case for taxing wealth generally. Yet some conservatives support the former while opposing the latter.

In 2017, as part of the Tax Cuts and Jobs Act, Congress imposed a 1.4 percent tax on the net investment income of large, well-endowed universities. The question now is whether it should be expanded.

My colleague Erik Jensen knows far more about tax law than I do, and he had a piece this week in Civitas Outlook suggesting why taxes on university endowments is not such a great idea. Not only does the tax raise minimal revenue, it induces universities to waste more money on accountants and administrators to account for and avoid the tax (and its "cliff effect"), and its costs are not ultimately borne by universities as institutions.

In form, colleges pay the tax, just as corporations pay the corporate income tax. But everyone except Bernie Sanders knows that the economic burden of corporate tax is borne by some combination of investors, employees, and customers—not the targeted corporations, which are legal fictions. Economist Douglas Holtz-Eakin has similarly argued that "in the near-term, the students and university employees will bear the brunt of the [endowment] tax." Is that desirable?

Jensen also suggests that if the purpose of the tax is to penalize universities for being too progressive or "woke," that is a misguided justification for the policy.

I defer to no one in my dislike of wokeness, but it's a bad idea to have the federal government attacking educational institutions for permitting disfavored views. If a college is nothing but a platform for political indoctrination, challenge its tax-exempt status. But despite what you may have read, no elite university is tainted with wokeness from top to bottom. Yes, even departments in the hard sciences and engineering have overdone wokeness in hiring and promotions, but it's hard to see how a course in physics or a research lab is going to be excessively woke.

In any event, the idea that an institution should be taxed because politicians think it's too woke should make all who care about academic freedom nervous. (We should be similarly nervous about any proposed federal mandates requiring wokeness.) I'll leave to First Amendment scholars the question of whether an anti-wokeness motivation for a tax violates the Constitution. But, even if constitutional, it's not something Congress should do.

The post The Case Against Taxing University Endowments appeared first on Reason.com.

[Josh Blackman] Today in Supreme Court History: March 1, 1880

3/1/1880: Strauder v. West Virginia decided.

The post Today in Supreme Court History: March 1, 1880 appeared first on Reason.com.

[Ilya Somin] How Trump Imperils Free Markets and Personal Liberties

[Washington Post columnist Dana Milbank provides a helpful summary, with a little help from me.]

Jeff Bezos, owner of the Washington Post, recently said the Post opinion page should be "writing every day in support and defense of two pillars: personal liberties and free markets." This inspired Post columnist Dana Milbank to write a helpful piece outlining some of the many ways in which the new Trump administration threatens those values:

Personal liberties and free markets are part of the American creed. But many readers I've heard from suspect the words are cover for a plan to turn this into a MAGA-friendly outlet.

I don't yet know for sure. But this much is clear: If we as a newspaper, and we as a country, are to defend his twin pillars, then we must redouble our fight against the single greatest threat to "personal liberties and free markets" in the United States today: President Donald Trump…..

Claiming monarchical powers, attacking the free press, starting trade wars, cutting off legal immigration, siding with despots over free countries, politicizing law enforcement and the military, assaulting the judicial system and injecting crony capitalism at the highest levels of government: These are all the very antithesis of "personal liberties and free markets."

Milbank also interviewed me about this issue, and quoted a few things I said:

"I think, and many of us (libertarians) think, that the Trump administration is very bad on these metrics of both economic and personal liberty," [Somin] told me. "The massive trade wars that he's starting right and left go against Econ 101 as well as any libertarian principle. There's the mass deportation and immigration restrictions, which restrict both economic and personal liberty on a massive scale. There's his attacks on the freedom of the press, which are also troubling," as is Trump's "kissing the rear end of dictators like Vladimir Putin."

Somin likes some of Trump's efforts to cut regulations and taxes, but "if you look at the cumulative impact … the horrible things Trump is doing massively outweigh many times over the good that he might do in a few areas."

He rattled off a list of Trump's offenses against personal liberties and free markets. The president, by circumventing Congress's constitutional spending authority, is making the treasury "essentially the personal piggy bank of one man," which is "extremely dangerous from the libertarian point of view." Trump's attempts to cut federal spending and the workforce, though laudable, "are actually pretty piddling, and some of them may even make the federal budgetary and regulatory situation worse" because of their ham-handed implementation. His takeover of independent federal agencies raises libertarian concerns because it puts massive governmental power "concentrated in the hands of one man." His attempts to dictate school curriculums under the guise of abolishing DEI, and his discrimination against transgender people also offend libertarian principles. The GOP budget that passed the House this week with Trump's help "will massively add to the deficit," Somin pointed out, while doing nothing to stop the major entitlement programs, Medicare and Social Security, from "just handing out money to the nonpoor elderly or even the affluent elderly."

Somin said the handing over of taxpayers' personal information to unvetted members of Musk's team violates personal liberties. Trump's attacks on media outlets critical of him are classic "weaponization of government," Somin added, and his packing of the Justice Department and FBI with loyalists is "scary and dangerous." The presence of "cranks like RFK Jr." overseeing health policy will reduce access to medicines and vaccines, which is "just a straightforward violation of libertarian principles." And the president's crackdown on migration is "a severe restriction on both the economic and personal liberty of native-born Americans. People who want to hire immigrants or engage in social relations with them cannot do that if those people are not allowed to enter the country."

The professor was heavily critical of the Biden administration, too, most notably for unilaterally forgiving student loans. But "Trump is worse," Somin said, because "under Biden there was just no equivalent to the massive assault on immigration and trade," nor Trump's attempt "to usurp the entire spending power from Congress." In sum, Trump's approach is "irreconcilable" with the principles of free markets and personal liberties.

I outlined how severe immigration restrictions like those Trump is implementing, threaten liberty in greater detail here.  The fundamental problem with Trump's administration is that the modest good he is doing on a few issues is massively outweighed by the immense scale of the harm, which includes massive trade wars with nearly all major trade partners, the most draconian immigration restrictions in modern history (save possibly those in force at the height of Covid), and undermining the Western alliance to the great benefit of authoritarian enemies like Russia and China.

I was, as Milbank notes, highly critical of many Biden policies, such as massive unilateral use of executive power to institute student loan forgiveness, and the abuse of the Covid emergency to perpetuate a nationwide eviction moratorium and bogus public health immigration restrictions. But Trump's assaults on liberty and constitutional government are substantially worse.

I don't agree with every point Milbank makes. For example, while Trump may be wrong to seek a federal takeover of the DC government, it isn't really a matter of personal liberties or free markets. But he's right about the overall picture.

I speak only for myself. But it's worth noting that I'm far from the only libertarian or libertarian-leaning commentator to sound the alarm about the new administration. For example, my Cato Institute colleagues Walter Olson, Alex Nowrasteh, David Bier, Scott Lincicome, Michael Cannon, and Patrick Eddington have also outlined the grave dangers posed by many of the new administration's policies.

The post How Trump Imperils Free Markets and Personal Liberties appeared first on Reason.com.