Category: reason

The Trump campaign’s post-election lawsuits have been almost uniformly unsuccessful, key states are moving ahead with certification of their results, and the General Services Administration has finally recognized Joe Biden as the probable president-elect. Although Donald Trump still insists he is not conceding, a growing number of Republican lawmakers are urging him to do so, or at least acknowledging that his wild fraud claims have not panned out. Joining a small group of GOP legislators who promptly recognized Biden’s victory, several senators and representatives who initially took a wait-and-see approach recently said we have waited long enough.

Sen. Mitt Romney (R–Utah), a Trump critic who supported impeachment and said he did not vote for the president, congratulated Biden on his victory more than two weeks ago, after major news outlets projected him as the winner. Sen. Lisa Murkowski (R–Alaska) likewise acknowledged Biden’s victory on November 7, as did Reps. Don Young (R–Alaska), Adam Kinzinger (R–Ill.), John Shimkus (R–Ill.), Paul Mitchell (R–Mich.), Tom Reed (R–N.Y.), Will Hurd (R–Texas), and Denver Riggleman (R–Va.).

Rep. Francis Rooney (R–Fla.), who congratulated Biden the following day, wrote a November 15 op-ed piece for The Hill headlined “Time to Concede.” Rep. Don Bacon (R–Neb.) admitted on November 8 that “the handwriting is on the wall that Joe Biden has been elected as the next President.” Sen. Susan Collins (R–Maine) congratulated Biden on November 9, and Rep. John Curtis (R–Utah) recognized him as the president-elect the same day.

Rep. Jim Durkin (R–Ill.) chimed in last week. “The election is over,” he told the Chicago Sun-Times on November 19. “Begin the transition process.”

Last Thursday, Sen. Ben Sasse (R–Neb.) cast doubt on Trump’s attempts to reverse the outcome of the election. “What matters most at this stage is not the latest press conference or tweet, but what the president’s lawyers are actually saying in court,” he told The Washington Post. “When Trump campaign lawyers have stood before courts under oath, they have repeatedly refused to actually allege grand fraud—because there are legal consequences for lying to judges.”

Sen. Marco Rubio (R–Fla.) likewise has been skeptical of Trump’s election fraud charges. “Taking days to count legally cast votes is NOT fraud,” he tweeted on November 4, although he added that “court challenges to votes cast after the legal voting deadline is NOT suppression.” Last week Rubio casually referred to Biden as the “president-elect.”

Rep. Liz Cheney (R–Wyo.), who chairs the House Republican Conference, initially said “it’s the responsibility of the courts” to address election fraud claims. But by last Friday, she was losing patience. “The President and his lawyers have made claims of criminality and widespread fraud, which they allege could impact election results,” she said. “If they have genuine evidence of this, they are obligated to present it immediately in court and to the American people.”

On Saturday, after a federal judge scathingly rejected the Trump campaign’s attempt to block certification of Pennsylvania’s vote, Sen. Pat Toomey (R–Pa.), who had earlier noted that “the president’s allegations of large-scale fraud and theft of the election are just not substantiated,” said it was time for Trump to accept reality. “President Trump has exhausted all plausible legal options to challenge the result of the presidential race in Pennsylvania,” Toomey said in a press release, noting that Saturday’s ruling followed legal defeats for the Trump campaign in other states. “These developments, together with the outcomes in the rest of the nation, confirm that Joe Biden won the 2020 election and will become the 46th President of the United States….President Trump should accept the outcome of the election and facilitate the presidential transition process.”

Sen. Lamar Alexander (R–Tenn.) took the same step yesterday. “The presidential election is rapidly coming to a formal end,” he said. “Recounts are being completed. Courts are resolving disputes. Most states will certify their votes by December 8. Since it seems apparent that Joe Biden will be the president-elect, my hope is that President Trump will take pride in his considerable accomplishments, put the country first and have a prompt and orderly transition to help the new administration succeed. When you are in public life, people remember the last thing you do.”

Yesterday Sen. Bill Cassidy (R–La.) also acknowledged Biden’s victory. “With Michigan’s certifying it’s [sic] results, Joe Biden has over 270 electoral college votes,” he tweeted. “President Trump’s legal team has not presented evidence of the massive fraud which would have had to be present to overturn the election. I voted for President Trump but Joe Biden won. The transition should begin for the sake of the country.”

Sen. Shelley Moore Capito (R–W.Va.) issued a similar statement yesterday. “I have been clear that President Trump—like any candidate for office—has the right to request recounts and to raise legal claims before our courts,” she said. “However, at some point, the 2020 election must end. The window for legal challenges and recounts is rapidly closing as states certify their results in the coming days. If states certify the results as they currently stand, Vice President Joe Biden will be our next president and Senator Kamala Harris will be our next vice president. I will respect the certified results and will congratulate our nation’s new leaders, regardless of the policy differences I might have with them.”

By USA Today’s count, “about a fifth of the Republican Senate has explicitly acknowledged Biden’s victory.” The paper notes that “some GOP senators, including Sens. John Cornyn, Ted Cruz and James Lankford, have called on Biden to receive intelligence briefings but have declined to call him president-elect.”

One of the Senate holdouts is Trump critic-turned-toady Lindsey Graham (R–S.C.), whom Georgia Secretary of State Brad Raffensperger, a fellow Republican, recently accused of suggesting that he should find a way to disqualify Biden-favoring absentee ballots in that state. Graham said that was a misunderstanding. But he has not been shy about reinforcing Trump’s claims of consequential election fraud. “If Republicans don’t challenge and change the U.S. election system, there will never be another Republican president elected again,” he said on Fox News two weeks ago.

“I think the election is not over until the votes are counted and the legal challenges are decided,” Graham told reporters around the same time. “That’s why I would encourage the president not to concede.”

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Earlier today, The Hill published my article on similarities between immigration restrictions and racial discrimination. Here’s an excerpt:

On few if any issues was there a bigger contrast between the parties in the 2020 election than on immigration. President-elect Joe Biden has made it clear that he intends to reverse Donald Trump’s highly anti-immigrant policies, including repealing his travel bans and greatly increasing the number of refugees allowed into the U.S. Race discrimination has likewise been a major focus of public debate, and Biden promises to make combatting it a major focus of his administration.

But the link between the two issues is often ignored. Exclusionary immigration policies are unjust for many of the same reasons as is racial discrimination by the state. Both restrict freedom and opportunity based on arbitrary circumstances of birth. And both have historic roots in bigotry…

Racial discrimination is a grave injustice because it penalizes people for a morally irrelevant characteristic over which they have no control. When racial segregation in the United States prevented black Americans from living where they wished, their liberty and opportunity was constrained based on an arbitrary trait determined by parentage. As Martin Luther King famously put it, people should “not be judged by the color of their skin, but by the content of their character….”

While most Americans condemn racial discrimination, it is much less widely recognized that our immigration restrictions violate the same principles. Like racial segregation, immigration law restricts where people live and work based on circumstances of birth….

Whether your parents were American citizens is just as much beyond your control as whether they were black or white. The same goes for whether you were born in the U.S. Neither trait says anything about the “content of your character….”

In many cases, immigration restrictions stifle liberty and opportunity even more than domestic racial discrimination. Many excluded migrants are consigned to a lifetime of poverty and oppression under the control of brutal regimes whose depredations go beyond those currently experienced by any American minority group.

Consider, for example, the fate of Cuban refugees forced to live under a totalitarian state, or Syrians forced to endure mass murder and terror….

[T]here should be a strong presumption against migration restrictions. Perhaps it can be overcome in situations where violating it is the only way to prevent some great harm. But, as with racial discrimination, a heavy burden of proof must be met before we consign people to oppression and poverty based on circumstances of birth.

I address many of the issues covered in the article in much greater detail in Chapters 5 and 6 my recent book Free to Move: Foot Voting, Migration, and Political Freedom. In that book, I also criticize claims that particular ethnic or racial groups are the “true” owners of various territories, and thereby entitled to exclude those with different backgrounds.

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Here’s “Узник” (“Uznik”, “The Prisoner” or “The Captive”) (1822) by Aleksandr Pushkin (1799-1837).

For the rest of my playlist, click here. Past poems are:

1. “Ulysses” by Alfred, Lord Tennyson
2. “The Pulley” by George Herbert
3. “Harmonie du soir” by Charles Baudelaire
4. “Dirge Without Music” by Edna St. Vincent Millay
5. “Clancy of the Overflow” by A.B. “Banjo” Paterson
6. “Лотова жена” (“Lotova zhena”, “Lot’s wife”) by Anna Akhmatova
7. “The Jumblies” by Edward Lear
8. “The Conqueror Worm” by Edgar Allan Poe
9. “Les Djinns” by Victor Hugo
10. “I Have a Rendezvous with Death” by Alan Seeger
11. “When I Was One-and-Twenty” by A.E. Housman

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When my book Lawless: The Obama Administration’s Unprecedented Assault on the Constitution and the Rule of Law was published, one criticism I faced was that my conception of what violates the rule of law was overbroad. In particular, I asserted that some actions the Obama faced undermined the rule of law, even though the administration’s actions were not clearly illegal when undertaken and the administration obeyed judicial rulings when they went against the administration. How, questioned critics (almost always Obama supporters), could the Obama administration be accused of undermining the rule of law under those circumstances?

I don’t want to revisit examples from the book, but rather to return to the broader question: Can a president and his administration undermine the rule of law while not doing anything clearly illegal and obeying judicial rulings that run contrary to its policies? This may have been difficult for Obama supporters to see at the time, but I think they would acknowledge that the Trump administration, especially Trump himself, has done this routinely.

Over the years, Trump has attacked judges’ integrity based on their ethnicity, hinted that supporters at rallies should commit violence against protesters, suggested that critical media be censored, made wild accusations of election fraud in 2016 (even though he won) and of course now, among other things.  All but diehard Trumpists would likely acknowledge that some of all of these actions undermined the rule of law. Yet, with perhaps a few exceptions, Trump has not done anything obviously illegal, and his administration has consistently obeyed hostile court rulings.

Indeed, when one confronts a Trump apologist with the ways in which Trump’s rhetoric and actions have undermined the rule of law, that apologist is likely to point out that Trump has acted within the bounds of legality, or at least debatable legality, and thus he is innocent of undermining the rule of law. And it’s true that the Trump administration has arguably been *better* overall than the Obama administration in obeying the letter of the law, even while the president’s rhetoric more directly undermines our institutions.

But I’m going to take the same position regarding Trump that I took with the Obama administration: merely heeding legal formalities, while certainly important, is also consistent with behaving in ways that undermine the rule of law.

Again, I’m not inclined to revisit the Obama-era controversies discussed in my book. And I’m certainly aware that the line between “undermining the rule of law” and “playing constitutional or political hardball” is a fine one that will spark disagreement among sincere interlocutors.

But, to take a board example of how one can “obey the law” while undermining the rule of law, even while not engaging in Trumpian rhetoric, imagine an administration that knows that there is a 98% chance that courts (or other objective legal observers) would find that the law requires A. However, there is a not-entirely-crazy argument that the law in fact requires B. (Consider, e.g., Harold Koh’s not-entirely-crazy but extremely tenuous argument, adopted by the Obama Administration because it suited the president’s policy goals, that bombing Libya for months did not constitute “hostilities” under the War Powers Resolution. Okay, okay, I revisited one issue.)

The administration also knows that if it does B, it’s unlikely that anyone will have any standing to challenge it. If the administration does B, has it done anything blatantly illegal? Nope, it even may have an Office of Legal Counsel or White House Counsel opinion explaining why “B” is the correct legal answer. Has it undermined the rule of law? I’d say yes, because it knows what the “right” answer would be according to objective legal expertss, and chose to ignore that answer because it conflicted with its preferred policies.

That’s just one sort of example, Trump’s conspiratorial rhetoric is another. One can indeed undermine the rule of law while complying with legal formalities.

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President-elect Joe Biden will soon formally announce his appointments for top foreign policy and national security positions, including longtime adviser Antony Blinken as secretary of state.

As a veteran of the U.S. State Department and Democratic foreign policy establishment, Blinken’s forthcoming nomination has garnered praise for the extensive experience he’ll bring to the job as the country’s top diplomat. But advocates of a more restrained foreign policy caution that his appointment signals that the incoming Biden administration will do little to roll back America’s web of global entanglements.

Biden’s very conventional secretary of state pick offers little hope for anyone who’d want “a new and fresh foreign policy that doesn’t involve global military primacy, continued intervention overseas, and this massive military footprint” overseas, says Kelley Vlahos, a senior adviser at the Quincy Institute, a non-interventionist foreign policy think tank.

When working as Biden’s national security adviser, she notes, Blinken supported the Obama administration’s disastrous Libya campaign, despite the vice president being opposed to that particular intervention.

In 2015, Blinken—then assistant secretary of state—was also a proponent of the Obama administration’s policy of shipping arms to and sharing intelligence with Saudi Arabia in support of that country’s war in Yemen, which has proven to be a humanitarian disaster.

He served as Biden’s chief policy adviser in 2002 when the then-Delaware senator voted in favor of the use of military force in Iraq.

“In short, Blinken has agreed with some of the biggest foreign policy mistakes that Biden and Obama made, and he has tended to be more of an interventionist than both of them,” wrote Daniel Larison in a Monday article for the Quincy Institute’s publication, Responsible Statecraft.

Blinken, to his credit, has expressed some regret over his support for Saudi Arabia’s war in Yemen and criticized the wars in Iraq and Afghanistan. In other instances, however, he’s been regretful about missed opportunities for more military intervention, even criticizing the Obama administration’s Syria policy as doing “too little.”

“Without bringing appropriate power to bear, no peace could be negotiated, much less imposed” in Syria, wrote Blinken and Robert Kagan in a 2019 essay published by the Brookings Institution. “Today we see the consequences, in hundreds of thousands of civilians dead, in millions of refugees who have destabilized Europe and in the growing influence of Russia, Iran and Hezbollah.”

Late-coming regrets about past interventions and a general desire for America to do more globally suggest Blinken has not absorbed the lessons of America’s foreign policy adventures from the past couple of decades, says Vlahos.

“A lot of people who have offered some regrets for specific foreign policy mistakes—whether it be Libya or Vietnam or Iraq—is because they cannot deny the consequences. The consequences are so awful and public opinion has already decided.”

A few progressive non-interventionists have offered a rosier interpretation of the forthcoming Blinken nomination. Matt Duss, Sen. Bernie Sanders’ (I–Vt.) foreign policy adviser, described Biden’s selection as “a good choice,” saying Blinken has “the knowledge and experience for the important work of rebuilding US diplomacy.”

Likewise, most of the mainstream coverage of Blinken’s nomination has emphasized his diplomatic experience, contrasting it with Trump’s own “ricocheting strategies and nationalist swaggering” in the words of The New York Times.

Those that want a less militarized foreign policy should see some silver linings in Blinken’s forthcoming nomination, says Eric Gomez, director of defense policy studies at the Cato Institute.

“A lot of what Trump did while in office is hurt all the parts of the tool kit that weren’t the military or weren’t sanctions. He was heavily dependent on U.S. threats of force,” Gomez notes. “Having a more effective and resourced and utilized diplomatic corps, and using those peaceful non-military parts of U.S. foreign policy, it is not sufficient but it is necessary. We have to have those.”

At the same time, Gomez cautions, a more efficiently run State Department also means that Biden will be more effective in enacting a foreign policy vision that has little to do with restraint or rolling back America’s role as the global policeman.

The most cause for optimism from a Biden foreign policy, argues Gomez, comes not from the personnel he’ll pick but from the fact that more pressing concerns closer to home will prevent the incoming president from doing anything too dramatic.

“Any coming Biden administration foreign policy will be restrained by circumstance, but not design,” wrote Gomez and Brandon Valeriano, a senior fellow at Cato, in The American Conservative earlier this month. “The domestic, political, and economic environment in the United States will significantly constrain the Biden administration’s ability to adopt ambitious foreign policy goals.”

Alongside Blinken, Biden has tapped Jake Sullivan to be his national security adviser and John Kerry to be his climate czar.

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I’ve done several Zoom talks on various subjects over the last several weeks, and much enjoyed them. They are less engaging, of course, than an in-person talk, but there’s no travel time and no travel cost, so I’m much more open to such invitations than I had been to in-person speaking engagements. So far, I’ve done (among other things)

• law school talks “at” Arizona, Chapman, Columbia, Duke, Illinois, Texas, and Yale,
• talks to college classes, in places where I’d normally have a hard time traveling,
• talks to lawyer groups, including in the Northern Mariana Islands,
• talks to community groups, such as a local Rotary Club,
• a conversation with a church pastor,
• TV and radio programs, and
• podcasts and videocasts.

I’m teaching again starting late January (I was on sabbatical this Fall), but I expect I’ll still be up for such talks then, and also before then. So if you’re interested, please just drop me an e-mail at volokh at law.ucla.edu. I’d also be glad to talk

• to school assemblies and classes,
• to homeschooling groups,
• and to other groups as well.

I’ve mostly talked about free speech and about religious freedom, but I can also talk about gun rights and gun policy, Internet law, the Supreme Court, and a smattering of other topics. Please let me know if you’re interested.

People sometimes ask me about honoraria, and my answer is that I’d like whatever honorarium your group customarily pays for similar events. If it doesn’t normally pay an honorarium (and most groups don’t), I’ll generally be glad to do it for free; I view it as part of the “service” component of a professor’s job (“research / teaching / service“), and it’s part that I enjoy. With the Northern Mariana Islands group, I realized that the modest honorarium would be just too much trouble to deal with, so I instead asked them to just mail me a locally themed care package; they sent me some very nice small items, which I was pleased to display on the video.

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