Back in June, I wrote a post about Canada's two active secession movements: one in Alberta and one in Quebec. Since then, there have been some important developments. Alberta secessionists suffered a major defeat. Quebec secessionists are in better shape, but the odds are still against them succeeding anytime soon. That said, both movements may well persist for a long time to come.

Yesterday, Alberta secessionists lost a referendum on secession by a massive 75-25 margin. Pollsters expected a blowout, but this margin is close to the outer edge of expectations. Moreover, the result may actually understate the true extent of opposition to secession in the province. As noted in my earlier post, the question put to the voters was not directly about secession, but rather on whether "the Government of Alberta [should] commence the legal process required under the Canadian Constitution to hold a binding provincial referendum on whether or not Alberta should separate from Canada." Essentially, it was a referendum on whether to hold another referendum. Some "yes" voters might have been confused about what it meant or wanted to hold a second referendum, while planning to vote "no."

United Conservative Party Alberta Premier Danielle Smith (who played a key role in arranging yesterday's vote, despite opposing secession herself) has pledged not to hold any further referenda on secession. She may well be happy to sideline an issue that divides her party (Alberta secessionists are overwhelmingly right-of-center UCP voters).

All of this is bleak news for Alberta secessionists. But it's too early to say their movement is dead. As noted in my previous post, secession movements often persist for many years, even in the face of defeats in referenda and other political setbacks. Scotland, Quebec, and Catalonia are all examples of this phenomenon. And some 25% of Alberta voters did express support for secession, despite opposition from the leaders of all major political parties. That's a minority, but far from an insignificant one.

Meanwhile, in Quebec, on October 5, the secessionist Parti Quebecois (PQ) won the provincial election. But they got only 28% of the vote (the lowest percentage for any winning party in the history of Canadian provincial elections). That translated to a "minority" government that has 59 seats in Quebec's National Assembly (the provincial legislature), 5 short of a majority. And, as discussed in my previous post, secession remains unpopular, with polls showing opposition by a margin of 2-1 or more. For much more detailed discussions of the Quebec election and its ramifications, see analyses by Canadian election/polling experts Eric Grenier and Philippe Fournier.

As Fournier emphasizes, PQ leader Paul St. Pierre Plamondon (known as "PSPP") remains committed to holding a secession referendum. But the minority nature of his governments makes it unclear whether the PQ can find the votes to enact legislation to hold one. The left-wing Quebec Solidaire party (which holds 9 seats) is also pro-independence. But they may not be willing to work with the PQ. In addition, PSPP has promised not to hold a referendum so long as Donald Trump remains president of the United States, claiming it would be too dangerous to do so while Trump continues his trade war with Canada and otherwise threatens the country. Unless Trump dies or gets impeached and removed (both relatively unlikely), he will remain in office until January 2029. Canadian minority governments generally don't last more than two years. So PSPP may not be in power long enough to outlast Trump.

While Quebec secessionists seem unlikely to prevail in the near future, the fact that they managed to return to power is still a sign of the movement's persistence. And they have survived referendum defeats in 1980 and 1995. Thus, the movement is likely to continue to be a thorn in the side of Canadian federal governments, perhaps for many years to come. It has demonstrated its staying power over many years, much more so than Alberta secessionists.

Many Canadians believe Trump's threats against their country have weakened secessionists in both Alberta and Quebec. PSPP's stance is just part of the evidence for this conclusion. Trump's trade war and threats to make Canada the "51st state" have bolstered national unity and made the Liberal Party government of Prime Minister Mark Carney much more popular than might otherwise be the case. Trump is making Canadian national unity - and the Canadian Liberal Party - great again! But for him, the Liberals would likely have lost last year's Canadian federal election to the Conservatives.

Perhaps, all along, Trump has been trying to help the Liberals and stymie secessionists. If that's the true objective of his Canada policy, then maybe it's not quite as evil and stupid as otherwise seems to be the case. On a more serious note, Trump's policies have illegally usurped congressional authority over trade,  damaged our economy, and alienated a crucial ally - all for no good reason.

In my June post, I outlined reasons why I am more sympathetic to Alberta's secession movement (motivated by conservative economic ideology and grievances about federal fiscal transfers and energy policies), than Quebec's (motivated by Francophone ethno-nationalism). Although I think the Alberta movement has greater merit than Quebec's, for reasons also summarized in the earlier post, I remain skeptical that Alberta secession would accomplish more good than harm. I also explained why these movements may be of interest to many non-Canadians and why I (an American) comment on them them:

[T]hese events are… of interest to students of federalism and secession, and to anyone who cares about the future of America's northern neighbor and one of our most important allies. And history shows that secession movements often persist even after defeat in a referendum….

From a US perspective, I worry that a successful secession movement would make Canada a weaker and less effective ally. Unlike our current president, I think a strong Western alliance is essential….

Some might find it inappropriate for an American to comment on Canadian politics. I disagree. Canadians and other non-Americans often express views on US politics. And they have every right to do so. Political analysis should be judged on its substance, not on the background of the author. In addition,… Canadian secessionism potentially impacts the US in various ways, and raises broader issues about the morality of secession movements that Americans and others have reason to take an interest in…. I am a longtime academic expert on federalism and secession-related issues, and I know French, as well as English. Thus, I think have the necessary qualifications to write about these issues. Whether the commentary is any good or not, is for others to judge.

The post Update on Canada's Two Secession Movements appeared first on Reason Magazine.

Today, the Liberty Justice Center (LJC) filed Gellert Global Group Corp. v. Trump, the first lawsuit challenging President Donald Trump's massive Section 338 tariffs against a variety of Canadian imports. The case was filed in the US Court of International Trade (which has jurisdiction over tariff-related cases); Gellert Global Group is an importer of Canadian cheese subject to the tariffs. LJC is the same public interest group that I worked with on the case challenging Trump's earlier IEEPA tariffs, which ultimate resulted in their invalidation by the Supreme Court. I am not directly involved in the present case. But I support it and believe it deserves to prevail.

LJC has also filed cases challenging Trump's massive Section 122 and Section 301 tariffs. They have become America's premier public interest law group standing up for free trade and enforcing constitutional constraints on executive power over trade restrictions.

Section 338 was part of the infamous Smoot-Hawley tariff act of 1930, which gravely exacerbated the Great Depression. It has never been used before, likely because it was superseded by later laws.

I have previously written about why Trump's Section 338 tariffs are harmful and illegal. See my recent Montreal Economic Institute paper on this topic, and earlier pieces here, here, and here. To briefly summarize, the tariffs on Canada are illegal because 1) Section 338 has been superseded by later legislation, 2) even if Section 338 is still operative, Trump's tariffs do not meet its requirements because the Canadian actions they supposedly respond to do not "discriminate" against US goods, as the law requires, 3) Trump's tariffs do not "offset" the Canadian actions (as Section 338 also requires), but go far beyond that, 4) the administration's interpretation of Section 338 runs afoul of the "major questions" doctrine, and 5) if Section 338 is operative and does authorize the Trump actions, it would violate the constitutional nondelegation doctrine (which restricts delegation of legislative power to the executive).

The LJC complaint advances all five of these arguments. To prevail, they need win on only one. They also add a few more technical points that I will not try to cover here. LJC further seeks a class action certification for a class of all those importers subject to the Section 338 tariffs. If this succeeds, it would block all enforcement of Section 338 tariffs, not just those paid by Gellert.

This lawsuit does not directly challenge Trump's extension of the Section 338 action to categorically ban some Canadian imports, in addition to imposing tariffs. As far as I can tell, Gellert does not import goods subject to the ban (as opposed to the tariffs). However, as I explained here and here, the legality of the bans is dependent on that of the initial tariffs. In a recent Lawfare article, I outline the reasons why executive-imposed import bans are subject to most of the same legal constraints as executive-imposed tariffs.

Like the IEEPA, Section 122, and Section 301 tariffs, Trump's use of Section 338 is an attempt to convert a limited delegation of authority into a blank check enabling the president to impose tariffs whenever he wants. Courts should reject all of these power grabs.

I commend LJC for bringing this important case. And I hope and expect it may not be the last lawsuit challenging the Section 338 measures. Future cases might well challenge the import bans directly, as well as the tariffs.

The post Liberty Justice Center Files First Lawsuit Challenging Trump's Section 338 Tariffs Against Canadian Imports appeared first on Reason Magazine.

Today, the Supreme Court decided to hear Association for Education Fairness v. Montgomery County Board of Education, a challenge to "facially neutral" discrimination against Asian applicants to selective public magnet schools in Montgomery County, Maryland. The admissions criteria are, on their face, racially neutral. But evidence indicates they were likely adopted for the purpose of reducing the percentage of Asian students in entering classes. More specifically, the case addresses the issue of "[w]hether a plaintiff challenging a facially neutral admissions policy as racially discriminatory must establish that the targeted racial group suffered an aggregate disparate impact relative to its share of the applicant pool." This issue is increasingly important since the Supreme Court banned most explicit racial discrimination in college admissions (and, by extension, school admissions) in SFFA v. Harvard (2023).

The lower court ruled that, even if there is evidence that a facially neutral admissions policy was enacted for the specific purpose of reducing the number of admitted students from a specific racial or ethnic group, it must still be upheld so long as the percentage of admitted students from that group is as high or higher than the percentage of applicants from that group.

The case is similar to (and based on) Fourth Circuit decision in Coalition for TJ v. Fairfax County School Board, which the Supreme Court refused to take in 2024 (though three conservative justices indicated they did want to hear it) [my wife Alison was one of the attorneys representing the plaintiffs in that case]. The present case is also from the Fourth Circuit. In my view (see here and here), the earlier Fourth Circuit decision is badly wrong and would - if the same approach were adopted by the Supreme Court - license all kinds of invidious, unconstitutional discrimination against Asians and other minorities:

Longstanding Supreme Court precedent holds that evidence of unconstitutional motivation for "facially neutral" policies shifts the burden of proof to the government to show that they would have enacted the same policy even in the absence of illicit motives. If they fail to prove that, then the policy must be subjected to strict scrutiny, which it would be unlikely to survive. In the TJ case, the Fourth Circuit majority opinion by Judge Robert Bruce King holds that even the most blatant discriminatory motivations do not trigger strict scrutiny so long as the group being targeted for discrimination by "facially neutral" means  is still represented in proportion to its percentage of the relevant population (or more). Under the new admissions policy, Asians were still 54% of accepted applicants (as compared to 73% under the old one). Since that is still higher than the Asian percentage of the applicant pool, evidence of discriminatory intent becomes irrelevant….

I and others have previously compared today's anti-Asian discrimination in selective educational institutions to discrimination against Jewish applicants in earlier eras.  Under the Fourth Circuit's reasoning, old-time policies using facially neutral means to reduce the percentage of Jewish students at elite universities would be perfectly legal, so long as Jewish applicants were admitted in the same [or higher] percentages as other groups. And that would be true no matter how extensive the evidence that the new policy was motivated by anti-Semitic prejudices, or that Jewish applicants had to have stronger academic records to be admitted than those required of gentiles.

The same point applies to all kinds of discrimination against racial, ethnic, and religious minorities. So long as facially neutral means are used and the overall success rates of different groups are similar, this reasoning would allow even the most blatant discriminatorily motivated policies intended to reduce the participation of some groups for the benefit of others. There are many situations where members of some minority groups are "overrepresented" in educational institutions, government contracting, and elsewhere, relative to their percentage of the applicant pool or of the general population. Jews, Muslims, Asians, atheists, and Mormons are obvious examples of groups that fit that bill in a variety of educational and professional settings.

If a federal or state government adopted a seemingly neutral policy to try to reduce the percentage of blacks among professional football or basketball players, that too would pass muster, so long as the percentage of blacks in the the relevant pro sports leagues remained at least as high as the percentage of blacks among those seeking employment as players…. Progressives and others inclined to support today's decision should consider whether they are really willing to live with these troubling implications.

Since I wrote the above, the ideological valence of anti-Asian discrimination in education has shifted somewhat. For a long time, many left-wingers defended such discrimination (along with discrimination against white applicants) on the grounds that it is necessary to achieve "diversity" and compensate Blacks and Hispanics for the history of discrimination against those groups. Most conservatives condemned it because it violates principles of constitutional color-blindness.

During the second Trump Administration, however, right-wing nativists have increasingly defended discrimination against Asian immigrants on such ridiculous grounds as that they work too hard (thus making it too difficult for whites to compete with them), or even that they undermine the supposed value of racial "homogeneity." The political right actually has a long history of anti-Asian bigotry. But recently the problem has gotten much worse, after a period in which it was diminishing because conservatives (rightly) condemned such discrimination as a violation of color-blindness. The growing anti-Asian bigotry among right-wing nationalists is similar to and linked with their growing tendency towards anti-Semitism. Indeed, as many commentators have pointed out, the two prejudices are similar in many respects. Both Asians and Jews are condemned for supposedly working too hard, emphasizing academics too much relative to other activities, and supposedly dominating various business and intellectual fields.

The left-wing rationales for anti-Asian discrimination are little better than the right-wing ones. If you truly value diversity, it makes no sense to disfavor Asian applicants as a class. They add as much or more to diversity as any others. Indeed, as I have pointed out before, lumping all Asians in one category makes no sense, as this group includes a vast range of different ethnicities and cultures, covering more than half the world's population.

The compensatory justice rationale for anti-Asian discrimination collapses under the weight of the fact that many Asian groups have themselves faced extensive discrimination at various times in American history. Discrimination against Chinese and Japanese by federal and state governments has a long and sordid history, of which Japanese internment during World War II is just one particularly awful example.

It is important to recognize that "facially neutral" policies adopted for the specific purpose of excluding particular racial or ethnic groups differ from those that merely have an unintended disparate impact. The former are deliberate efforts to discriminate on the basis of race, whereas the latter are probably inevitable in a diverse society where groups differ from each other in various ways. For example, laws banning violent crime disproportionately affect any group which is, on average, younger than others, since young people (especially young men) have much higher crime rates than older ones.

The Constitution at least presumptively bars racial discrimination by government, whether motivated by left-wing objectives or right-wing ones. And such discrimination is forbidden even if cloaked in "facially neutral" garb. Otherwise, the government could easily discriminate against virtually any group simply by targeting some characteristic that correlates with group membership. Hopefully, the Supreme Court will recognize that and rule the right way in this case.

NOTE: The plaintiffs in this case are represented by the Pacific Legal Foundation, a public interest group that was my wife's employer until recently. As noted above, she helped represent the plaintiffs in a previous case (also litigated by PLF), on which the lower court ruling in this case was based. She is not one of the attorneys in this case, and is no longer with PLF.

The post Supreme Court Will Hear Case on "Facially Neutral" Discrimination Against Asian Students in Admissions to Public Magnet Schools appeared first on Reason Magazine.

Today, the Supreme Court decided to review the case of Department of Justice v. McNutt, which challenges a federal law banning home distilleries. The key question in the case is whether the law in question is justified by the combination of the tax power and the Necessary and Proper Clause (which gives Congress the power to make laws "necessary and proper" for executing other powers granted to the federal government). This is likely to be most important Supreme Court Necessary and Proper Clause decision since at least NFIB v. Sebelius (2012), which ruled that a "proper" power permissible under the Clause is one that is "ancillary" to the implementation of an enumerated power; it cannot be a "great, substantive and independent" power. This case is likely to further clarify the meaning of "proper," perhaps by explicating in more detail what counts as a "great…and independent" power.

In the lower court decision in this case, the Fifth Circuit ruled that the law is not "proper" and even that it isn't "necessary." There is also a Sixth Circuit decision that went the other way, thereby creating a circuit split.

As explained in my earlier posts on the Fifth and Sixth Circuit decisions (linked above), I think this law is not "proper," and I hope the Supreme Court strikes it down. I summarize the reasons why in my post on the Fifth Circuit ruling:

The Fifth Circuit… concludes that the law in question exceeds Congress' authority under the Necessary and Proper Clause, which grants the power to makes laws "necessary and proper" for carrying into execution other federal powers. I think the court is right that the law in question is not "proper." The Supreme Court, in NFIB v. Sebelius(2012), ruled that a "proper" power permissible under the Clause is one that is "ancillary" to the implementation of an enumerated power. It cannot be a "great, substantive and independent" power. See my analysis in this article. The power claimed here is clearly "great and independent." As Judge [Edith] Jones notes, "[u]nder the government's logic, Congress may criminalize nearly any at-home conduct only because it has the possibility of concealing taxable activity."

I elaborated further in the post criticizing the Sixth Circuit decision:

[T]he Sixth Circuit is badly wrong to conclude that the law is "proper." As explained in  my earlier post, the Supreme Court, in NFIB v. Sebelius (2012), ruled that a "proper" power permissible under the Clause is one that is "ancillary" to the implementation of an enumerated power. It cannot be a "great, substantive and independent" power. The power to ban any home-based activity that might serve a substitute for taxable activity outside the home is clearly a "great and independent power." As Judge Edith Jones explains in the Fifth Circuit ruling, "[u]nder the government's logic, Congress may criminalize nearly any at-home conduct only because it has the possibility of concealing taxable activity."

The Sixth Circuit tries to address this point by claiming alcohol is somehow special….

This distinction between alcohol and all other commodities is totally arbitrary. The same reasoning could justify banning home production of anything else that is more easily taxed if produced outside the home. And there is a long history of home production of all kinds of other commodities taxed or severely regulated by the government, ranging from cigarettes to illegal drugs, to pornographic videos.

While Judge Edith Jones (author of the Fifth Circuit decision) is one of that circuit's most conservative judges, the ruling was also joined by liberal Obama appointee Judge James Graves. On the other hand, the Sixth Circuit decision was written by prominent conservative Judge Raymond Kethledge. We shall see if the Supreme Court also divides on this issue in a way that cuts across conventional ideological and jurisprudential lines.

As noted in my post on the Fifth Circuit case, I think Judge Jones is not persuasive in arguing that the home distillery ban isn't "necessary," as well as improper. That argument is unlikely to prevail under the Supreme Court's expansive definition of "necessary, "  dating back to McCulloch v. Maryland (1819), where Chief Justice John Marshall famously ruled that "necessary" includes any measures that may be "useful" or "convenient" for implementing an enumerated power.

As also noted in my posts on the two lower court rulings, I think the government has a better argument that this law is authorized by the Supreme Court's badly misguide precedent on federal power under Commerce Clause (which grants Congress power to regulate interstate commerce). But the Supreme Court is apparently not going to review that issue. The question presented submitted to the Court in McNutt is limited to the Necessary and Proper Clause.

The post Supreme Court Will Hear Necessary and Proper Clause Case on Federal Law Banning Home Distilleries appeared first on Reason Magazine.

On October 4, I published a post on "Libertarianism and Democracy," critiquing political philosopher Matt Zwolinski's earlier Liberalism.Org article on the same topic. Earlier today, I posted Matt's response to me. The present post is my rejoinder:

I would like to thank Matt for his interesting and insightful response. We agree on several key points, including that democracy is generally superior to authoritarianism, that libertarian critiques of democracy have great merit, and that - in much of the world - the most serious threats to liberty now come from the nationalist right, rather than the the political left. But we still differ on a few key points related to libertarianism and democracy.

The Nature of Libertarian Critiques of Democracy

Perhaps the most crucial disagreement is about the nature of libertarian critiques of democracy. Matt suggests that "[m]ost of what Ilya calls the libertarian critique of democracy is really a critique of big government." If so, libertarians can just focus on criticizing big government generally, while simultaneously extolling democracy.

There are indeed flaws of big government that arise regardless of whether it is democratic or authoritarian. But those outlined in my earlier Liberalism.Org article are in fact specific to democracy. They include tyranny of the majority, voter ignorance, and the tendency of democracy to create opportunities for illiberal forces to seize power and - in the worst case scenario - even destroy democracy itself.  Tyranny of the majority is obviously a problem distinctive to democracy. The same goes for rational voter ignorance, which arises from the perverse incentive structure  of individual voters, who have only an infinitesimally small chance of influencing electoral outcomes. And, while illiberal forces can and do seize power under authoritarian systems, the pathways democracies (usually involving the electoral process) create for them are distinctive.

Authoritarian systems have their own distinctive flaws, which are generally even worse. But the distinctive nature of democracy's flaws means they cannot simply be folded into a generic critique of big government. In addition, as noted in my response to Matt, these distinctive flaws of democracy are at the heart of many of today's most serious threats to liberty and justice in many democratic systems, including the threats posed by the nationalist right. Thus, it is important for libertarians to emphasize the nature and gravity of these weaknesses, and the value of our proposals for dealing them (which in many cases are different from and better than those advanced by other types of liberals). As emphasized in my earlier response, this is an area where libertarians often have a comparative advantage over other liberals. On the other hand, we generally do not have a comparative advantage when it comes to explaining why democracy is better than authoritarianism.

Along related lines, Matt suggests that libertarian critiques of the state aren't "an argument against democratic control of whatever the state does do." But once we recognize that democracy has significant distinctive flaws, there is actually a case for insulating some functions of government from democratic control. Obvious examples include the judiciary and monetary policy (unless we want to cut government out of the latter entirely, and adopt free banking). Indeed, even most non-libertarian liberals recognize that such insulation is desirable in some cases, most notably the courts.

The Problem of Libertarians Tempted by Authoritarianism

Matt argues that we should, nonetheless devote extensive energy to extolling democracy, because doing so is likely to have an impact on fellow libertarians who may otherwise be tempted to embrace authoritarianism. It is likely true that libertarians tempted in this way are more easily dissuaded by other libertarians than by non-libertarians. But such people are a tiny minority within an minority. Libertarians are a small group (probably around 5-10% of the US population or even less, depending on how you draw the line). Those sympathetic to authoritarianism are much fewer still. Thus, it makes little sense to devote more than a modest amount of time and effort to dealing with them, as opposed to addressing the much larger group of non-libertarian liberals who need to be more cognizant of the dangerous shortcomings of democracy.

Moreover, when we look at libertarians who have shifted to the "alt right" or otherwise become advocates of illiberal ideas, the problem in most cases is not excessive skepticism of democracy, but insufficient commitment to liberty - particularly, the liberty of people from different ethnic, racial, or religious backgrounds, that of migrants, and those with unconventional lifestyles. That is pretty obviously the case with Curtis Yarvin and Hans-Hermann Hoppe, both mentioned by Matt. The former's advocacy of a "post-liberal" ideology of repression (which is really based on pre-liberal models) is pretty obviously not the product of a man who thinks authoritarianism is a better way to protect liberty than democracy. Indeed, his concern is exactly the opposite (that democracy allows for way too much liberty). The same goes for Hoppe's advocacy of repression of immigrants, gays and lesbians, and people with various non-traditional lifestyles. Peter Thiel, the third case mentioned by Matt, is that of a person who has abandoned libertarianism for "national conservatism," an ideology focused on exalting the interests of ethnic and culture majorities and using the state to punish perceived "enemies." To the extent we want to focus on dissuading such people, it should be to reemphasize the value of liberty for all, not extolling the virtues of democracy. People who value democracy more than liberty are generally unlikely to become libertarians in the first place.

Two  Smaller Issues

Matt and I also have a modest disagreement over whether there can be situations where some form of authoritarianism can be a lesser evil compared to democracy. I think such cases are extremely rare, but not nonexistent. Matt's position is less clear, and perhaps I misunderstand him. But he does seem to want to deny this possibility. In response to my examples of the allied occupations of Germany and Japan after World War II, he seems to think these don't really count because "those occupations were run by democracies answerable to their own voters, and they ended." But they were still cases where non-democratic government was imposed on a population, and that population itself did not have control over when and if it would end.

In these cases, a non-democratic occupation government was a lesser evil than immediate establishment of democracy, because of the highly illiberal nature of German and Japanese majority public opinion at the time.  Similar circumstances can potentially arise in other countries. And, in some cases, a domestically generated authoritarian regime might still be a lesser evil than any democracy that is feasible at the time.

In some situations, the problem can be dealt with by limiting democracy, rather than abjuring it completely. For example, as noted in my earlier response, post-occupation West Germany long banned Nazis and communists from competing in elections, but otherwise committed to free electoral competition. But there could be situations where such constraints are not enough. Because such cases are highly unusual, this is not a particularly important disagreement. But it does have relevance in situations where we consider how to deal with a society where majority public opinion is deeply illiberal.

Finally - and least important - Matt differs with me about the use of the terms "libertarian" and "classical liberal," arguing that the former are more likely to be democracy-skeptics than the latter. We can, if we want, define the two terms in such a way that people we label with one are generally more suspicious of democracy than those we label with the other one. But that is not the way the terms are typically used. That said, different people use these terms in different ways. To my mind, they are mostly just alternative labels for the same general ideology. But I don't have much of a beef with people who prefer to use them differently than I do, so long as they make clear what they mean.

Ultimately, Matt and I agree on much more than we differ. But a few of the issues we differ have real significance. I am grateful for the opportunity to consider them.

The post Libertarianism and Democracy Revisited - A Rejoinder to Matt Zwolinski appeared first on Reason Magazine.

On October 4, I published a post on "Libertarianism and Democracy," critiquing political philosopher Matt Zwolinski's earlier Liberalism.Org article on the same topic. Matt has written a response to me, which I have agreed to post at this site. The remaining paragraphs of this post were written by Matt Zwolinski, not me (Ilya Somin). I have posted a rejoinder to Matt's thoughtful response here.

Who Should Defend Democracy?

A reply to Ilya Somin

My recent Liberalism.org essay, "Democracy Belongs on the List," made the case that classical liberals should count democracy among their core commitments, alongside private property, free markets, and the rule of law. And it belongs there for the same reason. Like property rights and markets, democracy is a crucial way of keeping power in check.

Ilya Somin has written a generous and thoughtful reply to that piece. And I think he actually agrees with me more than the framing of his post might suggest. Ilya grants that democracies are generally freer and more prosperous than the alternatives, that democracy is "a valuable check on power," that libertarians should arguably stress these points "more often," and that "in much of the world today, right-wing nationalists pose a greater threat to libertarian values and priorities than the political left does." What's left mainly comes down to two questions: what counts as a libertarian critique of democracy, and whose job it is to defend democracy.

Before turning to those substantive issues, though, there's one terminological matter that's worth clearing up. Ilya says that nothing of significance hinges on whether we call our view "libertarian" or "classical liberal." And on most questions I'd agree. On this one, though, I think the difference matters. In The Individualists, John Tomasi and I draw a distinction between strict libertarians and classical liberals. The former group tends to treat liberty as a moral absolute and to derive their politics from a single overarching principle like the non-aggression axiom. Think Murray Rothbard or Ayn Rand. The latter treat liberty as a strong but defeasible presumption and are more empiricist and pluralistic in their approach to politics. Think Friedrich Hayek or Richard Epstein.

My sense is that these two camps within the broader "liberty movement" have taken pretty different stances toward democracy, with strict libertarians being much more critical than their classical liberal brethren. Even back in the 19th century, you could find Benjamin Tucker insisting that voting is always a form of aggression, and Lysander Spooner arguing that women "have just as good a right to make laws as men have, and no better: AND THAT IS JUST NO RIGHT AT ALL." Herbert Spencer was even willing to walk back his support of women's suffrage once he decided that women would probably use their vote to support bigger government. That's a pretty different take than anything you're likely to find in Ludwig von Mises or Friedrich Hayek (more on whom later), let alone in John Stuart Mill.

That brings us to the first of the two substantive issues under dispute. Ilya argues that recent events have made libertarian critiques of democracy more important than ever, and that the libertarian solutions to democracy's flaws are "primarily to limit and decentralize government power." I'm with him on that, but I don't think this settles, or even really addresses, the debate about democracy. Limiting and decentralizing government power is a claim about the scope of the state, about how much government should do. It's a principle that would apply to any government, whether democratic or not. And, crucially, it isn't an argument against democratic control of whatever the state does do.

That distinction was at the heart of my essay. Following Jacob Levy, I argued that classical liberals have let a perfectly sound critique of too much government slide into a skepticism about democracy itself, treating democracy, in Levy's words, "as if the contrast to 'democratic' were 'economic' rather than 'autocratic.'" One can be a radical about reducing the scope of the state and still insist that its agents must be answerable to the people they govern. Most of what Ilya calls the libertarian critique of democracy is really a critique of big government. That's an argument I largely agree with, as far as it goes. The trouble comes when we file it under the wrong heading. When we ourselves blur the line between critiques of state power and critiques of democracy, we shouldn't be surprised when people come away thinking libertarians are against democracy.

That brings me to comparative advantage, which is where I think Ilya's argument is most interesting but also most mistaken. Libertarians are a small minority, he says, and "we have no comparative advantage when it comes to extolling the virtues of democracy relative to authoritarianism. Other types of liberals can do this work just as well as we can, perhaps better." So we should stick to what we do best, which is analyzing democracy's flaws.

This argument might make sense in some contexts. But as a general principle, I think it misfires, and it misfires most badly when the audience is classical liberals and libertarians themselves. That, after all, is where the turn against democracy has actually happened. Hans-Hermann Hoppe's Democracy: The God That Failed argued that monarchy was preferable to democracy, and complained that "habitual democrats" had been tolerated rather than "isolated, excluded and expelled from civilization." Curtis Yarvin, who came to neoreaction by way of libertarianism, credits Hoppe with opening "a kind of door to the pre-revolutionary world" for him. And in 2009, Peter Thiel wrote in a Cato Institute publication that "I no longer believe that freedom and democracy are compatible." None of this follows from the libertarian critique of voter ignorance, and nothing Ilya has written points in this direction. But it grew in a movement where, as Janet Bufton recently put it in Liberal Currents, "even liberal libertarians were taught arguments about why democracy fails," and hardly anyone was making the case for democracy on libertarian terms. Any old liberal can explain to the public why democracy beats dictatorship. But a libertarian drifting toward Hoppe or Yarvin isn't going to listen to them. Only libertarians can tell libertarians that democracy is theirs.

So if democracy is a libertarian value, what kind of libertarian value is it? Ilya argues that democracy shouldn't be "a first-order libertarian priority, on par with liberty, constraining coercion, property rights, and increasing human happiness," because its value is instrumental rather than intrinsic. I agree that the value of democracy is instrumental. In that way, it's in precisely the same position as a number of items on the classical liberal list. Free trade, federalism, judicial review, and the rule of law are instrumental too. What I want to resist is the claim that because democracy is only instrumentally valuable it's therefore dispensable – something that can be traded away whenever we can imagine something better. What we can imagine, though, is a poor guide to what works. The better question, as David Schmidtz argues, is what has "an observable history of leading self-interested agents to act in ways that are useful and agreeable to the people around them," and by that test democracy has very few rivals.

Which leaves us with Hayek. Ilya defends Hayek's preference for "a liberal dictator to a democratic government lacking liberalism" as a claim about rare hypothetical cases, and suggests that transitional non-democratic rule "may be necessary" in places like Russia and China, citing the Allied occupations of Germany and Japan. But those occupations were run by democracies answerable to their own voters, and they ended. Russia and China, in contrast, have no outside power that could impose a transition and then hand power back. The only realistic candidate for transitional power in those countries is a domestic strongman, which is exactly the case Hayek had in front of him. Hayek wasn't musing about hypotheticals; he was talking about Chile.

Ultimately, Ilya and I want the same thing. We both advocate a form of libertarianism that resists concentrated power wherever it appears, including when it arrives through the ballot box. Where we differ is on the need to say out loud that democracy is one of the ways we resist it. I think we should, and I think libertarians are better placed to say it than anyone, since the people who most need to hear it are our own.

The post Who Should Defend Democracy? appeared first on Reason Magazine.

Georgetown law Professor Steve Vladeck is one of the leading critics of the conservative majority on the Supreme Court. But in an insightful recent post on his substack, he outlines key reasons why "court expansion" is a bad response to its flaws. The cure is likely to be worse than the disease:

[I]t seems to me that those who are fully onboard the expansion-or-bust train should have to do more than simply assert that having four new Democratic appointees on the Court in 2029 would be a self-evidently "good" thing. If nothing else, proponents of expansion should have to answer the following four questions:

1. How do we avoid touching off a race to the bottom, where each time one party controls the House, Senate, and presidency, it expands the Court to ensure an ideologically and politically sympathetic majority?
2. If a race to the bottom is unavoidable, how do we avoid further (and potentially fatal) erosion of public confidence in the Court—which will quite transparently be little more than a lever of power for whichever party last had such a trifecta?
3. If eroding public confidence in the Court is a feature, and not a bug, how do we insulate against the same erosion of public confidence in lower federal courts?
4. What is the case for why expansion is a better way to achieve the desired reforms than alternatives that would (or, at least, should) avoid many of these forward-looking concerns?

He adds that court-packing could easily "permanently undermine judicial review as an institution." The rest of his piece (which is behind a paywall) offers far from reassuring answers to these questions.

I have offered similar criticisms of court-packing in a long series of articles and blog posts, most recently in a June Lawfare article  where I explained (among other things) why the Supreme Court's recent decision in Louisiana v. Callais doesn't justify packing, and in a July UnPopulist article critiquing a court-packing proposal advanced by Andy Craig. In these pieces, I explain why the Court's record of checking dangerous abuses of government power - though not without serious flaws - is considerably better than many critics claim. In addition, I argue that court-packing is likely to undermine effective judicial review - not only by the Supreme Court, but also by lower courts.

Like Vladeck, I think some of the issues that concern critics of the Court can be more effectively addressed in other ways. For example, in the Lawfare article, I explain how Congress can fix the flaws of the Callais decision by banning or restricting gerrymandering. It could also enact a binding ethics code for the justices. Justice Alito was wrong to suggest otherwise, back in 2023. That said, if your main goal is a sweeping reversal of much of the Court's recent jurisprudence, there may be no easy way to achieve that quickly without court-packing or something like it. I would argue that any benefits that might achieve are outweighed by the enormous costs of destroying judicial review.

In addition, if your objection to the Court's recent decisions is that they often don't do enough to constrain unconstitutional actions by other branches of government or by the states, court-packing is likely to make that problem worse, not better. Destroying judicial review won't enforce tighter constitutional constraints on the executive or bring back Roe v. Wade. To the contrary, it would largely destroy any hope of doing so.

In another recent piece, I assessed "non-packing" rationales for increasing the size of the Supreme Court. There, I argue that these rationales are mostly weak; and, to the extent they have merit, there are better ways to address them than an expansion that amounts to court-packing. I even outline possible ways to increase the size of the Court without creating an opportunity for court-packing (this would require allowing the party that doesn't hold the White House to pick some of the new justices).

The post Steve Vladeck's "Hard Questions About Court Expansion" appeared first on Reason Magazine.

Yesterday, in United States v. City of New York, yet another federal court ruled against the Trump administration in a sanctuary city case. "Sanctuary" jurisdictions are state and local governments that restrict their law enforcement agencies and other employees from assisting federal immigration enforcement and deportation efforts in various ways. In this case,  Judge Reyes of the US District Court for the Eastern District of New York upheld New York City laws restricting local law enforcement information-sharing and other assistance to federal immigration enforcers.

The court ruled that federal law does not preempt these policies, and that if if it did, there would be a violation of the anti-commandeering requirements of the Tenth Amendment:

Even were the Court to find that the United States has standing and the challenged provisions are preempted—both answered in the negative above—United States' claims would still fail because the anticommandeering doctrine of the Tenth Amendment to the Constitution of the United States precludes relief.

"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." U.S. Const. amend. X….

The United States argues it is "not seeking to compel participation in immigration enforcement … but rather to remove Defendants' express and implicit obstacles to the Executive's duty to carry out its immigration enforcement duties…." New York City replies "if accepted, [the United States' claims] would require the City to affirmatively assist the federal government in enforcing immigration laws in violation of the Tenth Amendment's anticommandeering doctrine…." New York City is correct, at least partially.

The United States seeks injunctive and declaratory relief to preempt the challenged provisions… If the challenged provisions were struck, while New York City would not be obligated to carry out federal immigration enforcement, they would be barred from prohibiting their agencies and employees from engaging in federal immigration enforcement by expending personnel, property, and other resources to (1) detain individuals and (2) implement inter-agency information-sharing, including disclosing personally identifiable information, all potentially in violation of state law. And of course, there is nothing within federal law that obligates states to participate in federal immigration enforcement or compels states to comply therewith.

The United States' preemption arguments amount to nothing more than a backdoor around the Tenth Amendment and rest on a false distinction between (a) compelling local governments' participation in federal immigration enforcement and (b) prohibiting local governments from dictating how their personnel and other resources may be utilized towards federal immigration enforcement….. "

The basic principle—that Congress cannot issue direct orders to state legislatures—applies" to commands for "affirmative action" and the imposition of "prohibitions." Murphy [v. NCAA], 584 U.S. at 455 (citation modified). If states cannot remain free to control their agencies and employees to resist federal immigration enforcement, which is within states' constitutional prerogatives, the Tenth Amendment anticommandeering doctrine means nothing.

This reasoning is correct. And it is notable that this ruling - like many others protecting sanctuary cities - relies heavily on the Supreme Court's 2018 anti-commandeering decision in Murphy v. NCAA, written by Justice Samuel Alito (probably the Court's most conservative justice), and joined by all the other conservatives then on the Court. In that case, the Court emphasized that the anti-commandeering doctrine bars Congress from dictating the actions of state and local legislatures, regardless of whether the dictation takes the form of an affirmative mandate, or a prohibition against legalizing or barring something under state law.

Judge Reyes also rejects the administration's argument under the "intergovernmental immunity" doctrine, which bars states and localities from directly regulating federal agencies or "discriminating" against them. Like the court in the recent case of United States v. New Jersey, he correctly emphasizes that there can be no discrimination when there is no other comparable activity that gets more favorable treatment under the sanctuary jurisdiction's policies:

"Differential treatment is critical to a discrimination-based intergovernmental immunity claim." New York, 814 F. Supp. 3d at 282….; "[A] comparator is necessary." New York, 810 F. Supp. 3d at 353. The United States discrimination claim fails for lack of a comparator.

The United States does not and cannot identify a similarly situated entity. State and local agencies and their officers do not enforce immigration law, nor do members of the public…  As the United States concedes, the Federal Government holds the "exclusive charge of enforcing immigration law…."  Not only are other federal law enforcement agencies with different charges differently situated, "[f]or a state law to unconstitutionally discriminate against the federal government, it must treat comparable classes of federal and non-federal employees differently, not different classes of federal employees." Illinois, 796 F. Supp. 3d at 534

I would add that, as I explained in a recent post, the entire antidiscrimination element of the intergovernmental immunity doctrine is dubious, and should probably be overturned by the Supreme Court:

[T]he whole doctrine of intergovernmental immunity strikes me as bogus, judge-made law. There is no provision in the Constitution requiring it. And the federal government is not some historically oppressed minority group protected by the antidiscrimination provisions Fourteenth Amendment. Where state and local governments are otherwise free to refuse to help the feds, that autonomy should not be forfeited merely because they choose to support potentially similar activities by state or local governments, or by the private sector. Obviously, a district court cannot refuse to obey Supreme Court precedent in this field. But I hope the Supreme Court might someday reevaluate that precedent.

This is just the most recent of a long line of defeats for Trump in sanctuary city cases, in both his first and second administration. Judge Reyes cites close to a dozen such cases over the last year alone.  I summarized this jurisprudence more fully in a post covering three other recent sanctuary cases, last month:

In cases where the administration has tried to directly coerce states and localities into cooperating, courts have rightly ruled this violates the Supreme Court's "anti-commandeering" precedents, a series of decisions reached primarily by conservative justices, which hold that the federal government may not force state and local governments to help enforce federal law or carry out under federal purposes. In cases where Trump has sought to withhold federal funds from sanctuary jurisdictions, courts have (also rightly) ruled that the executive cannot impose conditions on federal grants that were not authorized by Congress and (in some cases) that the Trump conditions are unconstitutionally coercive. For my analyses of Trump II court decisions on these issues, see here, here, and here.

My 2019 Texas Law Review article surveying and assessing litigation arising from Trump's first-term attacks on sanctuary jurisdictions. There and in other writings, I also explain why immigration sanctuaries (and conservative gun sanctuaries) are beneficial, and help protect our constitutional system. See also my February 2026 Dispatch article, "In Defense of Sanctuary Cities," which provides an overview of these issues, and defends sanctuary jurisdictions on both constitutional and policy grounds.

Yesterday's ruling may be appealed. But if so, it is unlikely to be overturned.

Trump has posted a few rare wins in sanctuary cases with unusual facts, such as in the Contracts Clause case I analyzed in the September post. But, such cases are highly exceptional. And, as explained in the September post, the Contracts Clause decision has various flaws, and would not greatly impede sanctuary jurisdictions even if it survives on appeal.

Overall, Trump has been losing these kinds of cases so much that he might even get tired of losing.

The post Trump Loses Yet Another Sanctuary City Case—This Time Against New York City appeared first on Reason Magazine.

Recent political developments have rekindled longstanding debates over "fusionism," the combination of libertarianism and conservative traditionalism that dominated the American right from roughly the late 1970s through the early years of this century. That dominance has been severely undermined and likely overthrown by the rise of nationalism and "postliberalism." But some would like to revive it. Reason editor Stephanie Slade's important new book Fusionism: Liberty, Virtue, and the Future of the American Right outlines one notable case for such a revival.

I agree with Slade, Jonathan Adler, and others that fusionism is far preferable to nationalism and postliberalism. But I am skeptical about its political viability. In addition, fusionism has significant conceptual flaws. Finally, at least in the short to medium term future, an alliance with "abundance liberals" is probably a more promising political strategy for libertarians than a revival of fusionism.

Despite my relative skepticism about a revival, I readily acknowledge fusionism's significant past achievements, and ongoing superiority over various other tendencies on the conservative right. Between the 1970s and the early 2000s, fusionist conservatives and libertarians (sometimes with the help of moderate/"neoliberal" Democrats) made huge contributions to such achievements as deregulation of many sectors of the economy, reducing tax rates, reinvigorating constitutional protection for property rights and limits on federal government power, and the West's triumph in the Cold War. While early fusionists sometimes undervalued the Civil Rights movement and were soft on racism, over time most of them came to promote color-blindness and and abjuring racial and ethnic discrimination in government policy. They even, for a long time, succeeded in making racial and ethnic color-blindness the dominant approach to such issues in the conservative movement. William F. Buckley and other fusionists also worked to purge the political right of its longstanding tendencies towards anti-Semitism. In combination, these are no small achievements.

The Rise of Right-Wing Nationalism and Postliberalism

But, especially over the last decade, fusionism has been displaced by nationalism as the dominant ideology of the Republican Party and the conservative movement. Where fusionism sought to reconcile traditionalism and liberty, nationalism is a grave menace to liberty across a wide range of issues. Consider Donald Trump's massive tariffs, federal takeovers of numerous private corporations, attempts to use the FCC and other government agencies to undermine free speech, and policy of mass deportations (which threatens the civil liberties and economic future of native-born citizens as well as immigrants).

Instead of color-blindness and nondiscrimination, we now have a conservative movement increasingly permeated with racial and ethnic bigotry and anti-Semitism of the kind fusionists sought to purge. Prominent right-wing "influencers" go so far as to claim we need to bar Indian immigrants because they work too hard and undermine the objectives of "homogeneity" and "maintain[ing] a white majority in the country." Many congressional Republicans also promote religious discrimination in immigration and other policies. In foreign policy, Trump has undermined relations with liberal democratic allies like Canada, Australia, and the nations of the European Union, and kowtowed towards illiberal nationalist authoritarians like Vladimir Putin.

Trump's idiosyncratic personal predilections contribute to some of these developments. But most arise from inherent tendencies of nationalism, which gravitates towards a zero-sum view of the world that leads to expanded government control of the economy, repression of racial and ethnic minorities, undermining civil liberties, and authoritarianism.

The "postliberalism" advocated by many leading right-wing intellectuals and activists is just as bad. Postliberals like Adrian Vermeule and Patrick Deneen are very clear about their desire to massively expand government control over the economy and civil society, and destroy both economic and personal liberties. Unlike nationalism, postliberalism has little mass public support. But it does have considerable influence among the intellectuals and activists who may staff future Republican administrations and congressional offices.

Illiberal big-government nationalism holds a strong sway over the Republican base. The 2024 election dramatically illustrates that. In the 2024 GOP presidential primary, Trump was challenged by Nikki Haley (a prominent advocate of traditional fusionism) and Ron DeSantis (popular governor of a major red state who tried to, in effect, split the difference between MAGA nationalism and pre-2016 conservatism). And, yet, despite the events of January 6, 2021 and numerous scandals, Trump not only beat these opponents, but did so very easily.  While that was partly due to his particular type of charisma, it also highlights the influence of illiberal nationalism over the GOP. Even now, with Trump increasingly unpopular, most congressional Republicans shy away from challenging his worst policies, for fear of losing to MAGA types in GOP primaries. Many of those who are willing to challenge him on major issues have either been ousted in GOP primaries (like Rep. Thomas Massie), or chose not to run for reelection because of the likelihood of suffering that fate (e.g. - Rep. Don Bacon).

Facing a difficult political environment in the 2026 midterm elections, some congressional Republicans have become more willing to criticize a few of Trump's policies, such as the badly mismanaged Iran War. But very few have repudiated his big-government nationalism across the board or called for a return to fusionism.

Perhaps this will all change once Trump leaves the scene. But we shouldn't count on it. At this point, the major likely contenders for the 2028 GOP presidential nomination - Vice-President J.D. Vance and Secretary of State Marco Rubio - seem like they are vying for the mantle of inheritors of Trump's worst tendencies, not opponents of them.

Inherent Limitations of Fusionism

Even if fusionists do manage to regain control of the Republican Party and the conservative movement, the ideology's inherent limitations might undermine its value. The extent to which fusionism is compatible with strong protections for economic and personal liberty is actually ambiguous. Frank Meyer, a key founder of fusionism in the 1950s and 60s, famously argued that liberty and virtue are mutually reinforcing because liberty is what enables people to be truly virtuous. A person who only does the right thing because he is forced to by the state isn't truly virtuous at all. Think, for example, of a man who only refrains from violence and theft for fear of going to prison. A paragon of virtue he is not.

This position has considerable merit. But most social conservatives, including many otherwise sympathetic to fusionism, don't fully buy it, or even come close. They argue that, at least in many instances, we want to achieve virtuous behavior, regardless of the motivation for it. Or, at least, that doing the right thing for a bad reason is far preferable to not doing it at all. Thus, if you believe that using pornography, prostitution,  gambling, taking various drugs, and so on are inherently immoral, then you may well advocate using government power to suppress these activities, even if people who only refrain out of fear of punishment are not as virtuous as those who abjure them voluntarily.

Many conservative fusionists do, in fact, believe that a wide range of consensual activities like the above are inherently evil. Alternatively, many believe that we have to suppress at least some of them out of paternalism. For example, they argue we must suppress drugs, prostitution, and gambling, because people who do these things don't understand what's good for them.

For these reasons, most conservative fusionists have in fact been willing to endorse many policies that severely curtail liberty. Even Ronald Reagan - the president whose administration most exemplified fusionism - promoted a major expansion of the War on Drugs, a federal policy that massively curtails liberty by killing or imprisoning hundreds of thousands people merely because they have used, possessed, or distributed substances the government considers too risky. Reagan's drug policies were not as bad as Trump's policy of outright murdering supposed drug dealers in the Caribbean and Pacific. But they were very bad, even so - and a striking example of the limitations of fusionism.

Elsewhere, I have argued that, at this moment in political history, the best available potential allies for libertarians are "abundance liberals." They are by no means perfect. But they agree with us - to a large extent - on numerous major issues, including trade, immigration, nuclear power, "YIMBY" housing deregulation, and more. And, like us, they tend to oppose both left and right-wing ethnic identity politics (on which latter point see recent articles by Matt Yglesias and Kelsey Piper). On the whole, they are less paternalistic and less prone to advocate suppression of consensual activities than most fusionist conservatives. They also have considerably greater influence over the Democratic Party and the political left, generally, than fusionists currently have in the Republican Party and the conservative movement.

The left, of course, has its own dangerous illiberal menace in the form of "democratic socialists," whose statism has much in common with that of MAGA nationalists. But this faction is nowhere near dominating the Democratic Party and the political left to the degree that nationalists have come to dominate the right.

None of this proves that libertarians cannot continue work with fusionist conservatives at all. There are many issues on which there is still room for cooperation. I myself have worked with such conservatives in the Society for the Rule of Law, and in the effort to combat Trump's tariffs (where they played crucial roles in the litigation that led to the invalidation of Trump's IEEPA tariff power grab by the Supreme Court and in currently ongoing efforts to challenge his attempts to use other laws to reimpose sweeping tariffs).  Some conservative fusionists are more pro-liberty than others. And, for most, there is considerable variation across issues.

And, perhaps, things will be different in a decade or two. The Trumpist moment in right-wing politics may dissipate over time, though it seems unlikely to do so quickly.

Productive cooperation between libertarians and (some) conservatives is still very much possible. But we should recognize that fusionists are unlikely to regain control over the conservative movement anytime soon, and that fusionism has notable inherent limitations. Thus, we should look for other allies, and carefully limit the percentage of our eggs that we put in the fusionist basket. At this point, it cannot safely hold very many of them.

The post Fusionism and its Limits appeared first on Reason Magazine.