Eugene Volokh's Blog, page 289

[Josh Blackman] Supreme Court Briefs Filed By Attorney General Kamala Harris

[Knowing all that we know, I struggle to see how putting Harris in the White House would "save conservatism."]

Recently, a number of people on the right have endorsed Vice President Harris as the only way to save democracy. Relatedly, David French, says he is voting for Harris "to try to save conservatism." Not mentioned in French's essay is the Senator Schumer's nuclear bill, which would effectively overrule a decision by statute, and strip the Supreme Court of jurisdiction to review that law. French had asked Justice Gorsuch about Supreme Court "reform" during an interview, but the issue apparently did not move French. I suppose the only way to save democracy is to destroy the independence of the Supreme Court.

Perhaps if French came out and said we should elect Harris, but keep the Congress in Republican hands, that would forestall SCOTUS "reform," at least for a few years. But an endorsement of Harris, without opining on the state of Congress, all but ensures the filibuster is destroyed and jurisdiction striping and/or Court packing will pass. The American Bar Association recently endorsed a suite of "democracy" reforms, but as best as I can tell, has been silent on jurisdiction stripping. As Justice Thomas often repeats, we will come to regret crippling the last independent branch of government.

On that note, Harris spent about six years as Attorney General of California before becoming a Senator. By my count, she signed about fifty Supreme Court briefs–a mix of cert-stage briefs, merit-stage briefs, and amicus briefs. It is rare to have a presidential candidate with such a detailed record regarding constitutional law. I think it is useful to walk through these briefs to provide a sketch of how a President Harris would view the Constitution and the Court.

2016 Joined blue state amicus brief in Whole Woman's Health v. Cole (abortion) Led blue state amicus brief in Zubik v. Burwell (contraceptive mandate) Led blue state amicus brief in Murr v. State of Wisconsin (takings clause) Joined blue state amicus brief in Czyzewski v. Jevic Holding Corp. (bankrptucy) 2015 Joined blue state amicus brief in Arizona State Legislature v. Arizona Independent Redistricting Commission (redistricting) Joined blue state amicus brief in King v. Burwell (ACA "pure applesauce" and "jiggery-pokery") Merits brief in Davis v. Ayala (habeas) Joined blue state amicus brief in Michigan v. Environmental Protection Agency (Clean Air Act) Joined blue state amicus brief in Obergefell v. Hodges (same-sex marriage) Merits Brief in Friedrichs v. California Teachers Association (union dues) Joined amicus brief of blue states in Evenwel v. Abbott (redistricting) Solo amicus brief in Fisher v. University of Texas (affirmative action) Joined blue state amicus brief in United States v. Texas (DAPA) 2014 Joined blue states amicus brief in Utility Air Regulatory Group v. Environmental Protection Agency (Clean Air Act) Led blue state amicus brief in Sebelius v. Hobby Lobby Stores, Inc. (contraceptive mandate) Merits brief in Riley v. State of California (search of cell phone) Amicus brief in Armstrong v. Exceptional Child Center, Inc. (private cause of action for Medicaid) Joined amicus brief of red and blue states in Ohio v. Clark (confrontation clause) Led amicus brief of red and blue states in City of Los Angeles v. Patel (warrantless search) Joined amicus brief of blue states in Texas Department of Housing and Community Affairs v. The Inclusive Communities Project, Inc (Fair Housing Act and disparate impact) 2013 Led amicus brief of red and blue states in Maryland v. King (DNA testing) Joined (mostly) blue state amicus brief in Federal Trade Commission v. Watson Pharmaceuticals, Inc (patents) Joined blue state amicus brief in Shelby County, Alabama v. Holder (Voting Rights Act) Merits Brief in Hollingsworth v. Perry (same-sex marriage) Joined blue state amicus brief in United States v. Windsor (Defense of Marriage Act) Led blue state amicus brief in American Trucking Associations, Inc. v. City of Los Angeles (preemption) Joined amicus brief of blue states in Adoptive Couple v. Baby Girl (ICWA) Led amicus brief of (mostly) blue states in Kansas v. Cheever (self-incrimination) Joined amicus brief of red and blue states in Burt v. Titlow (ineffective assistance of counsel) Joined amicus brief of red and blue states in Mississippi v. AU Optronics Corp. (parens patriae) Led amicus brief of blue states in Schuette v. Coalition to Defend Affirmative Action, Integration and Immigrant Rights and Fight for Equality by Any Means Necessary (state constitutional amendment to prohibit affirmative action) Led amicus brief of blue states in Northwest, Inc. v. Ginsberg (ADA) Merits brief in Brown v. Plata (prison overcrowding) Merits brief in Fernandez v. California (warrantless search) Joined amicus brief of blue states in Township of Mount Holly v. Mt. Holly Gardens Citizens in Action, Inc. (housing discrimination) Joined amicus brief of blue states in McCullen v. Coakley (abortion buffer zone) Merits brief in Navarette v. California (vehicle search) Led amicus brief of blue states in Harris v. Quinn (mandatory union dues) 2012 Joined amicus of blue states in HHS v. Florida (constitutionality of individual mandate) Led amicus brief of blue states in NFIB v. Sebelius (severability of individual mandate) Joined amicus of blue states in Magner v. Gallagher (Fair Housing Act and disparate impact) Joined amicus brief of blue states in Arizona v. United States of America (Immigration, SB 1070) Merits brief in Johnson v. Williams (federal habeas) Sole amicus in Fisher v. University of Texas at Austin (affirmative action) Joined amicus brief of blue states in Federal Trade Commission v. Phoebe Putney Health System, Inc. (Eleventh Amendment) Led amicus brief of (mostly) blue states in Koontz v. St. Johns River Water Management District (exactions and monetary payments) 2011 Led amicus brief of blue and red states in Bullcoming v. New Mexico (Confrontation Clause) Joined amicus brief of blue and red states in Davis v. United States (exclusionary rule) Joined amicus brief of blue and red states in PLIVA, Inc. v. Mensing (drug labeling) Joined amicus brief of blue states in American Electric Power Company Inc. v. State of Connecticut (Clean Air Act) Merits brief in Douglas v. Independent Living Center of Southern California, Inc. (cause of Action for Medicaid suits) Merits brief in Martel v. Clair (ineffective assistance in capital habeas case) Joined amicus brief of blue states in First American Financial Corporation v. Edwards (case or controversy requirement) Joined amicus brief of blue and red states in Williams v. Illinois (confrontation clause) Joined amicus brief of blue and red states in PPL Montana, LLC v. State of Montana (navigable waters) Joined amicus brief of blue states in Freeman v. Quicken Loans, Inc. (RESPA)

(I may have made a few errors here or there, but I think my list is substantially complete.)

To summarize, Harris filed brief in support of abortion access (Whole Woman's Health), in opposition to pro-life demonstrators at clinics (McCullen v. Coakley), in support of the contraception mandate for private employers (Hobby Lobby) and religious non-profits (Zubik/Little Sisters of the Poor), opposed immigration-related cases involving Arizona and Texas, favored compelled payment of union dues (Harris and Friedrichs), opposed standing for intervenors in Prop 8 case (Hollingsworth), favored a constitutional right to same-sex marriage (Obergefell and Windsor), opposed both challenges to the Affordable Care Act (NFIB and King), favored broad reading of the Clean Air Act (Michigan and AEP), supported affirmative action policies (Fisher and Schuette), favored broad enforcement of disparate impact suits (Inclusive Communities, Mount Holly, and Magner), and supported obsolete Voting Rights Act coverage formulas (Shelby County). I did not go through her briefings in the Ninth Circuit and the California court systems, so I'm sure I missed some more. You can also see the kinds of questions she posed to Justices Gorsuch, Kavanaugh, and Barrett during their confirmation hearings.

Knowing all that we know, I struggle to see how putting Harris in the White House would "save conservatism."

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[David Bernstein] A Historian Claims that Republicans are Much More Likely than Democrats to Believe Government May Disregard the Law "When the Ends Seem to Justify the Means"

[Ideological monoculture in the academy allows silly, unsupported claims to go unchallenged]

In a recent article in Law and History Review (paywall), Temple University historian Alan McPherson makes a bold claim. He identifies two fraught attitudes toward the rule of law: (1) "when the ends seem to justify the means officials could disregard statutes"; and (2) "statutes require no enforcement mechanisms because government officials should obey them out of patriotism." According to McPherson the first of these attitudes is "held mostly by conservatives and the second, mostly by liberals."

McPherson uses the lens of the Iran-Contra scandal to explore this claim, by he hardly limits himself to that example. What empirical evidence does he have for this claim? Social science research? Polling data? Nope. Just his subjective impressions based on his understanding of how Republican administrations have behaved versus Democratic administrations.

I laughed out loud when I got to his depiction of the Obama administration. "To be sure Democrats to were guilty…. The otherwise scandal free administration of Barack Obama dealt with enemy prisoners through illegal kidnapping and torture, and he ordered countless assassinations of foreigners withdrawn strikes – all crimes under US law."

This amused me for several reasons. First, the notion that the Obama administration was otherwise scandal-free is laughable. Some people have even written entire books about not just Obama administration scandals in general, but specifically how the administration was inclined to ignore the rule of law when "the ends seem to justify the means."

Second, during the Obama administration one heard over and over from the administration's defenders, almost all Democrats, that the Obama adminsitration was entitled to stretch or evade or ignore the law because Republicans were unfairly or unjustly or otherwise blocking his agenda. It's hard to believe that McPherson missed that.

Finally, the only instances in which McPherson acknowledges Obama administration rule breaking are things that the left objected to, one of which, drone strikes, was not at all clearly illegal. There are far clearer examples of the Obama administration violating the law (e.g.), many of which have been discussed on this very blog site.

Meanwhile, McPherson is certainly correct that the Trump administration was hardly meticulous in observing legal niceties. But the Biden administration has implemented and defended policies with no sound legal basis. The most famous examples are trying to forgive student loans without a sound statutory basis for doing so and trying to preserve the Covid-era ban on evictions with even less of a legal basis for it.

Okay, so a particular historian made a particularly poorly defended claim. My broader point is that one sees such claims routinely because the academy is such a political monoculture. Liberal historians outnumber conservatives by something like thirty to one. In a more politically balanced academy, as this article went through peer review one or more of the peer reviewers would likely have asked for much stronger evidence of McPherson's claims about attitudes toward the rule of law. But one is much less likely to challenge claims that appeals one's own prejudices, especially when the target is people whom one rarely meets in a professional setting.

The post A Historian Claims that Republicans are Much More Likely than Democrats to Believe Government May Disregard the Law "When the Ends Seem to Justify the Means" appeared first on Reason.com.

[Josh Blackman] Today in Supreme Court History: August 11, 1942

8/11/1942: General John DeWitt, Commander of Western Defense Command, issues exclusion order. The Supreme Court held this order was constitutional in Korematsu v. United States.

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[Eugene Volokh] Mother's Recurring Condemnation of 13-Year-Old Son's Homosexuality as Child Neglect

From In the Matter of Isaiah D., decided last week by Justice Robert Hettleman of the New York Family Court (Kings County):

[The Administration for Children's Services (ACS)] has proven by a preponderance of the evidence that Ms. D.W. and Mr. W. neglected the [then-13-year-old] child Isaiah pursuant to FCA § 1012 in the following respects: (1) the parents used excessive corporal punishment on Isaiah on April 5, 2023; (2) the parents failed to allow the child to return to the family home after he was cleared for release from the hospital, and the parents failed to provide a meaningful or sufficient alternative plan; and (3) Ms. D.W. emotionally neglected the child by using anti-gay slurs in front of and towards the child, denigrating his lifestyle, and failing to sufficiently support him in the face of her disapproval.

Here's the emotional neglect analysis:

Emotional and/or verbal abuse can constitute neglect under the Family Court Act, where a respondent's actions place the child at imminent risk of emotional or mental harm. In such circumstances, contrary to the arguments of counsel, child welfare cases do not violate a parent's right to free speech under the First Amendment. Rather, the very nature of Article 10 cases involves a balance between a parent's fundamental right to parent their children as they see fit against the state's interest in protecting children from parenting that fails to meet a minimum standard of reasonableness.

In this case, Isaiah described that his relationship with his parents had deteriorated since he had identified himself as gay. He stated that his parents did not support that kind of lifestyle, that they had locked him out of the home in the past, and that Ms. D.W. had used a "gay slur" towards him during the incident on April 5. He also said his mother had a ritual performed on him involving candles, coconut, eggs, coffee and other items to rid him of being gay.

In court, Ms. D.W. acknowledged that she did "not believe in homosexuality," that the Bible "told her that," and that "god created male and female." When asked whether she ever used a "gay slur," Ms. D.W. responded that she regularly used the term "anti-man." She said this is a common term in her community, that she did not mean to use it in a derogatory way, and that she never used it towards Isaiah. On cross-examination by the AFC, however, she admitted that "the term comes up often," like when they saw things on social media or television, or even in conversations with her own mother. In addition, Ms. D.W. was evasive and inconsistent in her testimony about the role of Isaiah's sexuality in the family dynamic.

At one point, she said she had no idea about his sexuality before April 5, 2023, but throughout her testimony she described her ongoing concerns about his school recruiting him into a "gay cult." Upon questioning from the AFC, she testified that she "was not worried that Isaiah might be gay," but she was worried that the gay cult might turn him into being gay. Then, she said that if she had felt that Isaiah had been taking on any gay "traits," she would have wanted to correct that by talking to him and taking him to a church member.

Immediately after saying this, however, she said that she did, in fact, take these actions prior to the April 5 incident. She denied performing any "ritual" on Isaiah, stating that she is a Christian, but then she rambled on about if she had done "powerful" voodoo, she would not be in court and would be back on her job, "doing what I like." Finally on this topic, she said she "knew" where Isaiah was "getting that from," but she did not elaborate.

Parents are free to choose their own values, beliefs, and religious principles, and they are free to raise their children within those parameters, even if it creates tension or unhappiness. But this does not excuse conduct that rises to the level of neglect. In Matter of Ibraheem K. (Jacqueline N.), 190 AD3d 643 (1st Dept. 2021), the First Department upheld a finding of neglect where the parent threatened to send the child to the Middle East due to the child's sexual orientation, with the implication that the child would be killed for that reason. In Matter of Shane T., 115 Misc 2d 161 (Fam. Ct., Richmond Co., J. Leddy, 8/12/1982), the trial court found that the respondent father neglected the subject child by regularly calling the child a "fag," "queer," "girl," and similar terms. The Judge rejected the parent's explanation that he was trying to "cure" the child of his "girlie behavior." I have not found any other cases in New York State Family Court specifically addressing a parent's beliefs or actions around sexual orientation. Notably, in Ibraheem K., there were also findings that the parent used excessive corporal punishment on the child, which may have factored into the decision, and the Court in Shane T. noted that the child lived in constant physical fear of the respondent.

Returning to the instant matter, I find that the preponderance of the evidence establishes that Ms. D.W. neglected Isaiah by mocking his lifestyle and failing to support him emotionally. Even if her religious beliefs were honestly held and could be considered acceptable parenting, she continued to use anti-gay slurs regularly, including in the presence of the child, and used one directly to him during the April 5 incident.

During this entire time period, Ms. D.W. knew that Isaiah was struggling at school, having behavioral issues at home, and had been hospitalized for mental health problems. Yet she continued to denigrate his sexual orientation, took him to church and coworkers to redirect his thinking, and refused to engage in meaningful and productive ways to understand and work with him.

Her proclaimed supportiveness of him, including even if he were gay, is belied by all of the other evidence in the case. And the detrimental harm to Isaiah is clear from his hospitalization, struggles, and statements in April of 2023, particularly in combination with the parents' excessive corporal punishment on him and failure to take him back home or making a sufficient plan for his wellbeing.

However, there is insufficient evidence to establish any actions or omissions by Mr. W. with respect to Isaiah's sexual orientation, and thus ACS has not proven that cause of action against him.

And here's the factual backstory that sheds light on the finding of physical abuse and the failure to pick up the child at the hospital:

The case was filed before another Judge, and on April 14, 2023, that Judge released Elijah and Malia to the parents with various conditions, but she remanded Isaiah (who was still hospitalized at the time) to the care and custody of ACS. The case was assigned to me in mid-August of 2023. During the pre-trial phase of the case, the parents were very cooperative with ACS and foster care agency supervision with respect to Elijah and Malia, who were doing fine at home. On December 7, 2023, ACS offered the parents an Adjournment in Contemplation of Dismissal ("ACD") for those two children for a period of four months, which the parents accepted. The ACD for those children successfully expired on April 6, 2024, and thus that part of the case was dismissed.

In contrast, Isaiah remained in foster care and has not wanted contact with his parents. Likewise, the parents did not want him back in their care unless they felt he got the help he needed to ensure that there would be no violence in the home….

CPS [Child Protective Specialist] Lyn was assigned to investigate the case, and on April 12, 2023, she spoke to Isaiah at Brookdale Hospital. On direct examination, she testified that Isaiah told her the following: on April 5, 2023, he came home later than his curfew, and he and his mother started arguing. The argument became physical, and Ms. D.W. dragged Isaiah off his bed. Mr. W. intervened and began punching and kicking Isaiah, and then Isaiah fled to the living room. Next, his mother pinned him to the ground, his father choked him while he was on the floor, and at some point, Ms. D.W. threw a scooter at the child, hitting his leg. Isaiah also stated that at some point during the incident, Ms. D.W. called her own mother on the phone.

In response to questioning by other counsel, CPS Lyn provided additional details described by Isaiah. Isaiah stated that he broke his curfew because he was at a park making TikTok videos. When he got home, his mother asked where he was and lectured him about the world being dangerous. Isaiah told his mother to "shut the fuck up," and his father asked why he was speaking to his mother that way. Isaiah then said that he punched at his father, and at some point, he pulled his mother's braids and told her she would lose her job for beating him up. Ultimately, his mother called 911, and he was taken to the hospital.

CPS Lyn observed injuries to Isaiah, and she took the pictures that are Pet's 1-3. These pictures show a small mark to Isaiah's shin and scrapes to his forearm. Isaiah attributed these injuries to the April 5 incident, including that the mark to his leg was from being hit by the scooter.

CPS Lyn then testified that Isaiah went on to describe that the dynamic in the home had been deteriorating since he identified himself as gay. He said that his parents do not support that type of lifestyle: they had locked him out of the home in the past, and Ms. D.W. brought a "spiritual woman" to come to their home to perform a "ritual" that involved blowing smoke in Isaiah's face, throwing eggs, and cursing at him. Isaiah said that he wished his parents would not be so strict with his curfew, and he had spoken to them about it. In fact, they had moved his curfew back — to 5:00pm — but Isaiah still wanted it to be later.

On April 13, 2023, CPS Lyn spoke with both parents. On direct examination, CPS Lyn testified that Ms. D.W. described that Isaiah was regularly breaking his curfew, and she confirmed that an altercation happened between them on April 5, resulting in Isaiah being hospitalized. She said she called her mother in Guyana during that incident. Ms. D.W. complained that Isaiah's current school is "selecting boys" to be in a gay cult. She acknowledged that the hospital advised the parents that Isaiah was ready to leave the hospital, but she refused to take him home because she felt he needed more time in the hospital.

On questioning by other counsel, CPS Lyn testified to additional statements made by Ms. D.W. The mother said that Isaiah had come home after curfew, and she asked him where he was. Then he cursed at her and pulled her braids, whereupon Mr. W. intervened. Then Isaiah got a push pin or thumb tack and tried to scratch Mr. W. Mr. W. then "contained" Isaiah in the living room while Ms. D.W. called the police. She said that Isaiah's injuries were from him butting himself against a wall and hitting himself with the scooter. At some point, she called her mother in Guyana to show her what was happening. She denied ever using corporal punishment on her children, describing that she was a mandated reporter of child abuse through her work and would not want to jeopardize her job. Ms. D.W. said that their family does not believe in homosexuality and that she believed "demonic spirits" were taking over her son. She said that she was not ready to have Isaiah come home from the hospital, even though he had been hospitalized for over a week and was deemed safe and ready for discharge. She claimed that she was working on finding a different school or residential treatment program for him.

CPS Lyn testified that Mr. W. also confirmed that the incident took place after Isaiah broke curfew, and he said that Isaiah started it. Mr. W. echoed Ms. D.W.'s statements about Isaiah being in a gay cult.

Also on April 13, CPS Lyn went to the home and interviewed the younger children, Elijah and Malia. Both children appeared healthy and well, and CPS Lyn observed no injuries to either child. Elijah, who was 10 years old at the time, described that the April 5 argument took place, and that Isaiah was pulling Ms. D.W.'s hair and screaming "do you want to fight?" Mr. W. came into the room and pinned Isaiah down while Ms. D.W. called the police. When EMS came, Isaiah was kicking a wall. Elijah said that his parents do not use corporal punishment; rather, they take away the children's tablets or television time. Elijah said he likes his family but does not like it when Isaiah misbehaves and causes problems.

Malia, nine years old at the time, said she was asleep but awoke to noise in the home. When she came out of her room, she saw Isaiah on the floor trying to grab their mother's hair. An ambulance came and took Isaiah away, and Malia was mad at Isaiah for fighting with their mother. She, too, denied any corporal punishment in the home, and she felt safe with her parents….

The records describe that Isaiah was brought to the hospital by EMS on April 5, 2023. He had dried blood on his face, and he was calm. In RM's A, a medical note from April 5, Isaiah described that he had a history of mental health issues. "The patient described" hitting his head and having scratches on him, he said he would kill his whole family, and he made suicidal statements as well. The record notes that Isaiah had been seen in the emergency room "several times" for similar issues. In that note, Ms. D.W. said that Isaiah struck her multiple times with closed fists and that Mr. W. restrained him. The parents said that the incident started with the child acting out, banging his head on a wall, using a pin to prick himself, and threatening to shoot them. They described a prior incident where Isaiah grabbed a knife and threatened them, and they said they had difficulty handling his behavior. At some point, the hospital held a "family meeting," and Ms. D.W. said they were overwhelmed by Isaiah's behavior and threats. She said she had reached out the Board of Education for help but that they did not take her seriously.

In different notes from April 6, the hospital described various statements by Isaiah. In one note, Isaiah said he came home late, his parents questioned him about it, the argument escalated, and his parents and his siblings started to beat him up. In another note, the hospital documented injuries to his forehead and cheeks, and Isaiah said his mother hit him with a phone, that the argument escalated, he hit his father with a calendar, and a fight ensued. Isaiah told them that he threatened to slap his mother. In a note from April 8, Isaiah said he was doing okay and wanted to go home. He reiterated that the incident began with an argument about his curfew, and he said he got upset because his mother was hitting him. He hit her back and called her names, and he said that she called him a gay slur during the fight.

The notes document that Isaiah has a history of adjustment disorder, disturbance of conduct, and ADHD. Isaiah said that prescribed medication had helped him in the past, but he stopped taking it in January because of issues with the family's insurance coverage. He said that therapy helps, including family therapy, but that it was not resulting in changes in the family's relationships. He acknowledged that there is less conflict in the family when he follows his curfew and takes his medication. He said he was suspended from school in March for fighting. Isaiah said that his family wants him not to be gay, and his mother performed a ritual on him with candles, coconuts, eggs, coffee, and other items. He said he wants to be with his family, but he wants them to ask better questions, support him, and think more about how to do so. Finally, he agreed to change his own behavior to reduce conflict in the home.

On April 6, Ms. D.W. told hospital staff that Isaiah's behavior had been deteriorating since September of 2022. She said he stole a laptop, lied to family, has outbursts, threatened to get a gun and kill everyone, bangs his head against the wall, scratches his face with a pen, and has been threatening towards his parents with knives. She acknowledged that his medication had been effective and helped the situation, but she had insurance issues which resulted in Isaiah not being able to stay on the medication. On April 12, the hospital informed Ms. D.W. that Isaiah had made progress and was ready for discharge, but she said she wanted him to be in a residential treatment facility. She said that, among other things, she was concerned about the safety of her other children. On April 13, she again refused to take him home….

The post Mother's Recurring Condemnation of 13-Year-Old Son's Homosexuality as Child Neglect appeared first on Reason.com.

[Ilya Somin] Federal Appellate Court Rules in Favor of Takings Lawsuit Against the CDC's Covid-Era Eviction Moratorium

[The 2-1 decision overrules a trial court decision that went the other way, and could set an important property rights precedent.]

(NA)

On Wednesday, in Darby Development Co. v. United States, the US Court of Appeals for the Federal Circuit (which reviews takings claims against the federal government ruled that a takings lawsuit against the 2020-21 federal eviction moratorium can proceed. In so doing, it overruled a trial court decision by the Court of Claims, which I criticized here. The decision could well end up setting an important takings precedent.

In September 2020, during the Covid pandemic, the Trump Administration Centers for Disease Control (CDC) imposed a nationwide eviction moratorium, claiming that it would reduce the spread of the disease. The Biden Administration extended the moratorium multiple times. In August 2021, the eviction moratorium was invalidated by the Supreme Court because the CDC lacked proper statutory authority to institute it. But, in the meantime, numerous landlords suffered financial losses, because they could not evict tenants who weren't paying rent.

Some of the property owners filed a lawsuit arguing that the eviction moratorium violated the Takings Clause of the Fifth Amendment, which requires the government to pay "just compensation" whenever it takes private property. As I explained at the time, their position was backed by the Supreme Court's 2021 ruling in Cedar Point Nursery v. Hassid, which held that even temporary physical occupations of property qualify as "per se" (automatic) takings requiring compensation.

In May 2022, the US Court of Claims dismissed the takings lawsuit against the CDC moratorium on the perverse ground that there was no taking because the CDC's eviction moratorium was never properly "authorized." In other words, the government could escape takings liability because its actions were illegal! The recent Federal Circuit decision reversed that ruling.

As Judge Sharon Prost writes in her majority opinion for the court, an illegal seizure of property can nonetheless qualify as an "authorized" taking if it is "chargeable" to the government:

An action will normally be deemed authorized if it was done by government agents "within the general scope of their duties"—i.e., if it was "a natural consequence of congressionally approved measures" or "pursuant to the good faith implementation of a congressional act." Del-Rio, 146 F.3d at 1362 (cleaned up); see also Ramirez, 724 F.2d at 152 ("[O]n numerous occasions when the government agent was acting within the ordinary scope of responsibilities conferred on him by Congress, and took private property without express statutory authority or prohibition, the Tucker Act remedy was held to lie.")…..

To summarize: even if an action by a government agent is unlawful, it will likely be deemed authorized for takings claim purposes if it was done within the normal scope of the agent's duties—for example, if it was done "pursuant to the good faith implementation of a congressional act." Del- Rio, 146 F.3d at 1362 (cleaned up). If instead the action was outside the normal scope of the government agent's duties— or, despite being within that scope, it contravened an explicit prohibition or other positively expressed congressional intent—it will likely be deemed unauthorized. See id. at 1363; Ramirez, 724 F.2d at 151. The ultimate inquiry is whether the government agent's action is "chargeable to the government." Del-Rio, 146 F.3d at 1362.

The majority opinion engages in a long and detailed debate with Judge Dyk's dissent over the issue of whether the above approach is the best interpretation of relevant Supreme Court and Federal Circuit precedent. I won't try to assess that debate here.

To me, the decisive factor should be that the Takings Clause nowhere says that compensation is only required for legal government actions or for those specifically authorized by statute. Rather, the Clause imposes a general rule that compensation must be paid whenever the government takes private property for "public use." That, of course, can happen even without proper legislative authorization. I can understand if takings liability is nonetheless denied when rogue low-level officials seize property without any plausible justification. But that isn't what happened here. As the majority explains:

Finer legal points aside, the implications of the dissent and government's position illustrate its weakness. Taken to its logical conclusion, their position is that government agents can physically occupy private property for public use, resist for months the owner's legal attempts to make

them leave, and then, when finally made to leave, say they need not pay for their stay because they had no business being there in the first place. It would be one thing for this to be the result when government agents are clearly acting apart from Congress's will; in such a case, requiring just compensation would encroach too much on Congress's power of the purse…..  But there is no sound reason for such a result in a case like this, where (1) the government agent, after receiving a directive from the President, acted in good faith pursuant to a good-faith understanding of its congressionally conferred authority, (2) there was no explicit congressional prohibition foreclosing that understanding….. and (3) the government vehemently pressed that understanding in litigation so as to seriously impede the property owners' efforts to end the alleged occupation. Depriving property owners of a potential Fifth Amendment remedy in this case would deprive them of any meaningful remedy at all.

This strikes me as pretty obviously right. The CDC here was acting at the behest of two successive presidents of the United States, from different parties. And the federal government fought a months-long legal battle to prove that the policy was, in fact, properly authorized by legislation. They cannot now turn around and claim they don't owe takings compensation because they ultimately lost that fight. I expanded on this point in a bit more detail here.

Judge Dyk worries that the majority's rule would impose takings liability on the government in too many situations:

The majority's holding here would have significant consequences. It would effectively make even clearly unauthorized agency action authorized for purposes of takings liability unless that action was contrary to a specific prohibition of the authorizing statute or taken in bad faith.

That cannot be correct. The majority's decision would work a sea change in our takings jurisprudence and impose significant takings liability on agencies for unauthorized acts, directly discouraging adoption of legitimate government programs because of the risk of takings liability in addition to injunctive and declaratory relief. Historically, unauthorized programs were enjoined. Now, in addition there is the specter of takings liability.

I think the "specter of takings liability" is a feature, not a bug. If the government often engages in illegal seizures of property, then they should face "significant takings liability" for doing so. That might help deter such misconduct, or at least compensate victims, if it does not. If such misbehavior is relatively rare, then we need not worry about the ruling having "significant consequences." And if the program the government enacts really is "legitimate," then takings liability for "unauthorized acts" should not be a concern, because a legitimate program won't include much in the way of such unauthorized takings—if any.

The majority and dissent also dispute whether, in enacting the eviction moratorium, the CDC was acting within the scope of its "normal duties," a factor relevant to determining whether the taking was "authorized," under previous precedent. The dissent is right that the eviction moratorium was more sweeping than previous policies adopted under the statute the government claimed as authorization. But the majority has a fairly solid response:

[W]hen we say that the CDC issued the Order within the "normal scope" of its duties, we do not mean to suggest that the Order itself was normal. We readily agree it was not. But then again, neither was a burgeoning pandemic on the scale of COVID-19. The Order's abnormality flowed naturally from the abnormal circumstances the CDC was confronting—and from the CDC's reasonable (if ultimately incorrect) interpretation and application of its PHSA authority to those circumstances. In this case, simply because the Order was abnormal does not mean that the CDC—the agency charged with issuing regulations "as in [its] judgment" are necessary to prevent the interstate spread of communicable diseases, 42 U.S.C. § 264(a)—was acting outside the "normal scope" of its duties for takings-claim purposes when issuing it.

There is a complication here in so far as evidence indicates the Trump and Biden administrations enacted and extended the moratorium  in large part for political reasons, rather than because they were truly convinced it would curb the spread of disease. Still, the fact that the measure had a plausible public health rationale (public health is the CDC's main area of responsibility) still made it "normal" enough to qualify as authorized but unlawful. Broad measures—including many with dubious legal rationales— were common during the Covid pandemic.

Finally, the majority also concludes—correctly, in my view—that an eviction moratorium qualifies as a "physical taking" under Cedar Point. They rightly reject the argument that moratoria are merely regulations of the landlord-tenant relationship that should not be considered takings under current Supreme Court precedent. Rent control, ruled not a taking in Yee v. Escondido (1992), is distinguishable from a situation where the government forces a property owner to accept occupation of her land by a tenant that she would otherwise have the right to remove:

[T]he government argues that here, like Yee…, Appellants' tenants had been voluntarily "invited" onto Appellants' property—which, according to the government, means that there was no physical taking… See… Yee, 503 U.S. at 528 (observing that the park owners' "tenants were invited by [them], not forced upon them by the government"). While we agree that this point distinguishes this case from Cedar Point, we are not persuaded that it compels a different result. If a previous voluntary invitation (by itself) controlled the analysis, that would essentially mean that all government actions implicating the landlord-tenant relationship are immune from being treated as physical takings. (After all, we can safely assume that just about every landlord-tenant relationship stems from a voluntary "invitation" from the landlord to the tenant.) And yet,… we see no reason why government actions implicating that relationship must be categorically immune from being treated as a physical taking.

At bottom, just because tenants (or other occupiers of property) were at one point "invited" does not mean that their continued, government-compelled occupation cannot, under any circumstances, be treated as a physical taking…

To put it a different way, any "invitation" expires at the point where the property owner has a legal right to evict the tenant. At that point, there is no voluntary landlord-tenant relationship anymore; and if the government forces the owner to keep on housing the tenant on his land, we have a mandated physical occupation of property, which counts as a per se taking.

This case could end up being reviewed by the en banc Federal Circuit or even the by the Supreme Court. But if not (or if the en banc court or the Supreme Court uphold this ruling), it will set an important precedent on both the nature of "authorization" for takings, and eviction moratoria.

The issue of whether eviction moratoria qualify as takings has also been litigated in state courts, which have mostly ruled they do not. I criticized one such decision here.

Robert Thomas of the Pacific Legal Foundation has additional insights on Yesterday's Federal Circuit decision here.

The post Federal Appellate Court Rules in Favor of Takings Lawsuit Against the CDC's Covid-Era Eviction Moratorium appeared first on Reason.com.

[Ilya Somin] Why the Biden Administration Was Wrong to Suspend the CNVH Immigration Parole Program for Migrants From Four Latin American Nations

[The program allows Americans to sponsor migrants Cuba, Nicaragua, Venezuela, and Haiti. The Administration suspended it based on extremely dubious concerns about fraud.]

Venezuelans fleeing the socialist regime of Nicolas Maduro. (NA)

 

Last week, the Biden Administration Department of Homeland Security temporarily suspended the CNVH (AKA "CHNV") migrant sponsorship program, because of concerns about fraud. In an article for Reason, Cato Institute immigration policy experts David Bier and Alex Nowrasteh explain why this is a terrible decision:

President Joe Biden's Department of Homeland Security (DHS) paused a key component of its immigration agenda last week, which allowed immigrants from Cuba, Haiti, Nicaragua, and Venezuela to enter and work legally in the United States. Known as the CHNV parole process, this program has helped reduce illegal entries by hundreds of thousands since its launch. DHS should restart the CHNV program immediately.

CHNV has provided an important lifeline for migrants fleeing the horrors of totalitarian socialism and communism in Cuba, Nicaragua, and Venezuela, as well as the endemic chaos of Haiti. This process offers a lawful and orderly way for migrants to pursue the American dream. As these countries spiral further into political and economic dysfunction, CHNV has become more important than ever to prevent chaos at the border.

Under the CHNV process, immigrants required sponsorship from U.S. citizens or legal residents to lawfully enter the United States. DHS has halted the program in response to an internal report that allegedly found evidence of sponsor fraud. In fact, all it shows is the agency's anti-fraud directorate's ineptitude at analyzing big data.

Until now, nearly all immigration applications were filed on paper. For the first time in its history, DHS required all CHNV parole applications to be filed online, resulting in a monstrous data file of 2.6 million records. The agency's Fraud and National Security Directorate (FDNS) apparently took its first stab at assessing "potential fraud indicators" within it.

FDNS found blank entry fields, phone numbers that don't work, zip codes that don't exist, strange street addresses, Social Security numbers associated with dead people, repetitive text and repeat filers, and other similar anomalies. FDNS concluded that these issues indicate fraud.

But those oddities and errors are not evidence of fraud—they are part and parcel of large administrative datasets, especially those compiled by the government. Fraud involves intentional deception, deliberate misrepresentation, or omission by applicants to obtain benefits they do not qualify for. These issues are more likely due to changing circumstances between the time when the forms were filed and the FDNS analyzed them, copying-and-pasting between different types of electronic documents, and simple human error.

Finding mistakes like this in big data is absolutely normal. For starters, statistically, some sponsors have certainly died since filing their sponsorship applications. The bigger issue is that when 2.6 million people fill out a form—sometimes on behalf of a relative or client—errors such as transposing numbers and letters, writing their mailing address when they should write their physical address, or mixing up mailing and physical addresses are inevitable.

Errors can be introduced precisely because of the shortcomings of DHS's new online filing system. As one of us learned firsthand when sponsoring someone, DHS's system purges application drafts after 30 days. This means many applicants draft their responses on paper or in a separate electronic format and then paste the responses. This inevitably results in some answers being accidentally duplicated or put in the wrong field. These shortcomings can be easily understood as honest errors instead of fraud.

FDNS also inaccurately interprets repeat applications from sponsors as indicative of fraud. Yet the CHNV parole process explicitly allows sponsoring multiple applicants. Even when all the beneficiaries are from the same family, DHS requires the sponsor to submit separate applications for each person. Of course, there will be repetitive text and repeat filings—DHS mandates it. It's as if FDNS looked for evidence of fraud in the CHNV's data before understanding how CHNV works….

DHS should not overreact to the illusions of fraud inherent in big datasets. Any actual instances of fraud should be addressed through the agency's normal procedures, targeting individual fraudsters or reforming paperwork and electronic filing procedures and audits….

CHNV was the most novel and important part of Biden's immigration agenda. To undermine it now would be a catastrophic mistake that could undermine American border security, reduce the economic gains from immigration, and impose huge humanitarian burdens on migrants fleeing totalitarian socialism in Latin America and the Caribbean.

I would like to take this opportunity to expand on Bier and Nowrasteh's well-taken points a little.

First, as a sponsor in the Uniting for Ukraine program, which is very similar to CHNV and requires largely the same forms, I can testify from personal experience that the submission process can be clunky, and it is easy to make mistakes, especially if you are submitting multiple applications. I warned about this problem early on; in a January 2023 article generally praising U4U, I noted a few shortcomings, including that "[t]he program could… be improved by further simplifying the paperwork, some of which I found confusing and duplicative."  My impression is that this flaw has actually gotten worse, as forms have become more complicated over time.

It's important to keep in mind that most would-be sponsors are not lawyers and legal scholars (like me) or immigration policy experts (like Bier and Nowrasteh). Most don't have the same familiarity and comfort level with legalistic bureaucratic forms. Some are recent immigrants themselves.  Thus, it's easy for them to make inadvertent errors. That likely accounts for much of what FDNS found here.

Second, Cuba and Venezuela are facing intensifying repression, in the latter case because of the government's to suppress protests against it's recent falsification of election results. Conditions in Haiti and Nicaragua are also awful. It is wrong to close the door to migrants fleeing horrific oppression and violence merely because of flimsy suspicions about fraud by  some sponsors (as Bier and Nowrasteh note, DHS has no found no evidence of wrongdoing by the migrants themselves).

Third, as Bier and Nowrasteh note, the CNVH program plays a valuable role in reducing disorder at the border; it could be much more effective if the administration lifted the arbitrarily low 30,000 per month cap on participation (which is the total for all four countries combined). Bier and I expanded on this point in greater detail in a USA Today article. If the Administration wants to keep the number of illegal border crossings down, it should restart CNVH and expand it.

Finally, it's worth emphasizing that CNVH participants, like most other migrants, are an asset to the US, not a burden. They make valuable contributions to our economy, and reduce the federal budget deficit.

I do have one small disagreement with Bier and Nowrasteh: they advocate imposing a $575 fee on CNVH sponsorship applications. I oppose that for reasons explained here, in response to a similar proposal by Daniel Di Martino of the Manhattan Institute:

Social science evidence suggests that even modest bureaucratic obstacles can significantly reduce participation in various programs. Imposing a fee is likely to reduce the number of Americans willing to serve as sponsors, thereby diminishing the benefits of the program. People hate having to do paperwork, and they hate having to pay a fee for the "privilege" of doing it even more. The costs of processing the forms can instead be more than offset by the extra tax revenue produced by parolees who work in the US.

The post Why the Biden Administration Was Wrong to Suspend the CNVH Immigration Parole Program for Migrants From Four Latin American Nations appeared first on Reason.com.

[Josh Blackman] Today in Supreme Court History: August 10, 1993

8/10/1993: Justice Ruth Bader Ginsburg takes oath.

Justice Ruth Bader Ginsburg

The post Today in Supreme Court History: August 10, 1993 appeared first on Reason.com.

[Eugene Volokh] Interesting D.C. Circuit Dissent Regarding Computer Monitoring for Jan. 6 Trespasser

In U.S. v. Goodwyn, decided Tuesday, Judges Florence Pan and Bradley Garcia denied an emergency motion to stay the decision below, on the grounds that:

Appellant has not satisfied the stringent requirements for a stay pending appeal. See Nken v. Holder, 556 U.S. 418, 434 (2009); D.C. Circuit Handbook of Practice and Internal Procedures 33 (2021).

Judge Gregory Katsas dissented:

This appeal involves computer monitoring imposed as a special condition of supervised release for a defendant convicted of wrongfully entering the United States Capitol on January 6, 2021. Daniel Goodwyn pleaded guilty to one count of knowingly entering or remaining in a restricted building or grounds, in violation of 18 U.S.C. § 1752(a)(1). Goodwyn entered the Capitol and remained inside for a total of 36 seconds. He did not use force to enter, did not assault police officers, and neither took nor damaged any government property. When police instructed Goodwyn to leave the building, he did so.

The district court sentenced Goodwyn to 60 days of imprisonment followed by a one-year term of supervised release. As a special condition of supervised release, the court sua sponte ordered the probation office to monitor Goodwyn's computers for the transmittal of "disinformation" about January 6. To enforce this condition, the court further required the installation of software on Goodwyn's computers that would enable the probation office to conduct "periodic unannounced searches."

On appeal, this Court vacated the condition. We held that "[t]he district court plainly erred in imposing the computer-monitoring condition without considering whether it was 'reasonably related' to the relevant sentencing factors and involved 'no greater deprivation of liberty than is reasonably necessary' to achieve the purposes behind sentencing." We further instructed the district court, if it wished to impose a new computer- monitoring condition on remand, to "explain its reasoning," to "develop the record in support of its decision," and to ensure that the condition complies with section 3583(d) and with the Constitution.

The district court reimposed the same condition on remand. In an oral hearing, the court said that Goodwyn had made statements on social media that "can be, it seems to me, construed as" urging a repeat of January 6, particularly "on the heels of another election." In its written order, the court elaborated on what it called Goodwyn's "concerning online activity." This included posting exhortations to "#StopTheSteal!" and "#FightForTrump," soliciting donations to fund his travel to Washington, posing for a livestream while inside the Capitol, confirming his presence there by text, and tweeting opinions such as: "They WANT a revolution. They're proving our point. They don't represent us. They hate us." In addressing what the court described as Goodwyn pushing "false narratives" about January 6 after-the-fact, the court, quoting from the government's brief, led with the fact Goodwyn "sat for an interview with Tucker Carlson on Fox News Channel." Finally, in concluding that computer monitoring was reasonably related to Goodwyn's offense, the court reasoned that monitoring would prevent Goodwyn from raising funds to support potential future crimes and would separate him "from extremist media, rehabilitating him."

Goodwyn appealed and moved for a stay. I would grant the motion because, in my view, Goodwyn is likely to prevail on the merits and has shown an immediate irreparable injury. See Nken v. Holder (factors for stay pending appeal).

As to likelihood of success, U.S. v. Burroughs (D.C. Cir. 2010) cuts against imposing the computer-monitoring condition at issue here. There, a defendant was convicted of sex crimes against a minor, including serving as her pimp, and was sentenced to 192 months of imprisonment. The district court imposed a computer-monitoring condition of supervised release, which the government defended on the ground that "the Internet can be used to arrange sexual encounters with minors and to advertise minors for prostitution." Even on plain-error review, we quickly rejected that argument: "Of course it can. But from drug dealers to Ponzi schemers and smugglers to stalkers—nearly any criminal can use the Internet to facilitate illegal conduct. That an offense is sometimes committed with the help of a computer does not mean that the district court can restrict the Internet access of anyone convicted of that offense."

Burroughs involved criminal conduct much more serious and ongoing than the one-time, wrongful-entry offense that Goodwyn committed. If concern about Internet usage to commit future crimes or threaten others was insufficient to satisfy section 3583(d) in Burroughs, it is likely insufficient here as well. Moreover, the First Amendment significantly limits the government's ability to prohibit speech that is false, United States v. Alvarez (2012); speech that advocates the use of force, Brandenburg v. Ohio (1969); or speech couched as threats, Watts v. U.S. (1969) (per curiam). On this record, I doubt that the vague and broad prohibition on spreading "disinformation" about January 6 would survive First Amendment scrutiny under these standards, which recognize that the "language of the political arena … is often vituperative, abusive, and inexact."

As for irreparable injury, it is settled law that the "loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury." So this factor supports Goodwyn regardless of whether we credit his further assertion that he will lose his job as a journalist if the government is allowed to monitor his computer.

The third and fourth stay factors, involving harm to the non-moving party and the public interest, merge in this case, and provide no independent support for the government. Both parties treat these factors as an afterthought. With the two most important stay considerations favoring Goodwyn and with no public interest in enforcing likely unlawful speech restrictions, I would grant the motion for a stay.

The post Interesting D.C. Circuit Dissent Regarding Computer Monitoring for Jan. 6 Trespasser appeared first on Reason.com.

[Orin S. Kerr] The Precedential Value of Robinson, a Reply to Josh

[It's a weird case, but Robinson's death before the case was heard is old news. ]

Like a lot of people, I think that the Supreme Court's ruling in Robinson v. California (1962) is a mess.  It's a due process decision presented as an Eighth Amendment ruling.  With that said, I disagree with my colleague Josh Blackman's view that the case is entitled to no precedential weight because it turned out that Robinson had died in 1961, before the Court took the case.  Josh writes:

Jurisdiction can be raised at any time, even after death. The Court lacked jurisdiction to decide Robinson v. California because there was no actual case or controversy. The state was prosecuting a dead body. Robinson gives new meaning to habeas corpus. That decision is entitled to no precedential weight. I think the California Attorney General could, in theory at least, petition to vacate Robinson on those grounds. That probably won't happen. But next time Robinson comes up, the government should flag the issue.

It seems worth noting that this issue was raised before the Supreme Court in 1962.  After the Supreme Court's ruling, the California Attorney General filed a motion to vacate the judgment or rehear the case that alerted the Court to Robinson's death.

According to California's petition, dated July 20, 1962, none of the counsel for the parties had known that Robinson was dead. (This is not entirely uncommon in criminal cases involving low-level charges; appellate counsel can have a hard time staying in touch with clients who are not being detained and who don't have a fixed address.)  California's motion states that the fact of Robinson's death was only revealed by reporters who were looking into the case after the Supreme Court ruled:

It should be noted, however, that the fact of the appellant's death was unknown to either counsel for appellee or counsel for Amicus Curiae until the public press brought the matter to the attention of counsel for Amicus Curiae on June 25, 1962, subsequent to the issuance of this court's opinion on that date.

The Supreme Court nonetheless denied California's motion on November 13, 1962. Justice Clark, joined by Justices Harlan and Stewart, objected to that denial:

In my view this action by the Court is but a meaningless gesture utterly useless in the disposition of the case—the appellant being dead—and, as I read our cases, is contrary to the general policy this Court has always followed in the issuance of its mandates. Under our decisions this appeal abated as moot upon the death of the appellant, Menken v. City of Atlanta, 131 U.S. 405, 9 S.Ct. 794, 33 L.Ed. 221 (1889), and the judgment should have been vacated and the case remanded to the state court for such proceedings as might be appropriate under state law.

This is true even though the opinion and judgment of June 25 had been handed down prior to the notice of appellant's * death. See Stewart v. Southern R. Co., 315 U.S. 784, 62 S.Ct. 801, 86 L.Ed. 1190 (1942), vacating the prior judgment in the same case, 315 U.S. 283, 62 S.Ct. 616, 86 L.Ed. 849. Moreover, there is no question of costs involved here as there was in Wetzel v. Ohio, 83 S.Ct. 111. I would therefore grant the petition for rehearing and vacate the judgment as moot.

Whether one agrees or disagrees with the Court's denial of California's motion, it seems to me that this issue was settled for Supreme Court purposes 62 years ago.  The Supreme Court is certainly free to recast Robinson as a due process case someday—which I personally think they should, as that's what Robinson really is.  But the motion to account for Robinson's untimely death was litigated a long time ago, back when Elvis Presley had a Top 10 hit with "Return to Sender."

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[Ilya Somin] Trade, Public Opinion, and Political Ignorance

[A new Cato Institute/YouGov survey finds contradictory attitudes on trade policy, and widespread ignorance. The survey also suggests a potentially promising political strategy for free trade advocates.]

(NA)

A new Cato Institute/YouGov survey sheds some interesting light on public attitudes towards international trade. It finds that most Americans seem to like international trade, but also that there are significant internal contradictions in their views, and that those views are often influenced by ignorance. Such results should not be surprising, given widespread public ignorance about a variety of other public policy issues. But they are nonetheless notable.

In some respects, the Cato surveys that the public is very supportive of free trade, despite recent trends towards protectionism in both major political parties. Some 53% have a favorable view of "free trade," compared to only 11% that have an unfavorable view. An impressive 63% say they favor "the United States increasing trade with other nations," while only 10% are opposed.

On the other hand, 62% favor "adding a tariff to blue jeans sold in the US that are manufactured in other countries to boost production and jobs in the American blue jean industry." Similarly, 62% favor reducing US tariffs "only if… other countries lower their trade restrictions on U.S. products because otherwise they will harm American businesses and jobs," and 15% oppose tariff reductions under all circumstances. Only 23% favor unilateral tariff reduction (the  position held by most economists).

It looks as if large majorities favor "free trade" in principle, but shift positions when jobs are mentioned. But that latter view in turn dissipates once respondents learn that tariffs increase prices. Thus, the survey finds that 66% oppose imposing a tariff on blue jeans if it makes a pair of blue jeans $10 more expensive than it would be otherwise (58% would accept a more modest $5 increase in prices).

Given that almost all effective tariffs are likely to lead to significant price increases (otherwise, there would be no point in imposing them, since this is the only way they could meaningfully help domestic producers by diminishing purchases of foreign products), one would think this price-sensitivity would lead most people to oppose tariffs and support unilateral free trade. Tellingly, however, another question on the survey finds that only 38% know that free trade agreements reduce "the price of products Americans purchase at the store"; 39% believe (wrongly!) that trade agreements actually increase prices. A plurality also believe  that trade agreements destroy more US jobs than they create. In reality, the opposite is true, and tariffs often destroy jobs by making production in the US more expensive. For example, Donald Trump's steel tariffs predictably led to job losses in industries that use steel as a production input.

The survey also finds that most Americans believe the trade deficit is harmful (a view overwhelmingly rejected by economists), and greatly overestimate the percentage of US imports that come from China (a view that sours opinions on trade generally, because most Americans view China with great suspicion). Interestingly, opinion about the trade deficit shifts when respondents learn the money paid for foreign goods is reinvested in the United States (as is overwhelmingly true, because Americans pay for the goods in dollars; thus, a trade deficit leads to a current-account surplus).

In sum, opinion on trade policy varies a lot depending on how questions are framed (depending on whether jobs or prices are mentioned). This is similar to public opinion on many other issues that most Americans don't know much about and don't necessarily have strong opinions on. The are similar contradictions and question-wording effects in public opinion on zoning and restrictions on housing construction.

Interestingly, the survey finds that only 1% of Americans consider trade to be one of the three most important policy issues for them (though for some, trade might be part of the broader issues of "jobs and the economy" and "inflation/prices," both of which rate among the most highly-rated issues in the survey). This low prioritization makes it even more likely that voters pay little attention to trade policy, and know little about it.

For free trade advocates, there is a major tactical takeaway: voters hate price increases, and will oppose tariffs if they think they cause such increases. The blue jean question is particularly telling—showing that most people won't tolerate modest price increases even if told doing so will increase jobs. The idea that tariffs increase prices is at least somewhat intuitive, and it may be possible to get it across even to relatively ignorant voters.

The idea of emphasizing the price-decreasing effects of free trade is far from a new one. It's how Richard Cobden, John Bright, and the British Anti-Corn Law League forged perhaps the most successful free trade movement in history, in nineteenth century Britain. After the repeal of the Corn Laws, the pro-free trade British Liberal Party successfully emphasized the issue of prices for decades to come.

British Liberal Party campaign poster (circa 1905-10). (LSE)

 

The Cato/YouGov survey suggests modern free-trade advocates would do well to try the same strategy. Maybe we can learn a lesson from Cobden, Bright, and other old-time British Liberals.

Cato public opinion analyst Emily Ekins outlines the significance of some of the survey's other findings here.

NOTE: In addition to my primary position at George Mason University, I am also the Simon Chair in Constitutional Studies at the Cato Institute. However, I had no role in developing this survey.

UPDATE: Cato international trade scholar Scott Lincicome, who helped create the survey offers some insights on the results here.

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