Category: reason

Today the Supreme Court decided Ramos v. Louisiana. (Eugene and Jon blogged about it earlier). The votes are very, very complicated:

GORSUCH, J., announced the judgment of the Court, and delivered the opinion of the Court with respect to Parts I, II–A, III, and IV–B–1, in which GINSBURG, BREYER, SOTOMAYOR, and KAVANAUGH, JJ., joined, an opinion with respect to Parts II–B, IV–B–2, and V, in which GINSBURG, BREYER, and SOTOMAYOR, JJ., joined, and an opinion with respect to Part IV–A, in which GINSBURG and BREYER, JJ., joined. SOTOMAYOR, J., filed an opinion concurring as to all but Part IV–A. KAVANAUGH, J., filed an opinion concurring in part. THOMAS, J., filed an opinion concurring in the judgment. ALITO, J., filed a dissenting opinion, in which ROBERTS, C. J., joined, and in which KAGAN, J., joined as to all but Part III–D.

Justice Kavanaugh offered this explanation of the breakdown:

As noted above, I join the introduction and Parts I, II–A, III, and IV–B–1 of JUSTICE GORSUCH‘s opinion for the Court. The remainder of JUSTICE GORSUCH‘s opinion does not command a majority. That point isimportant with respect to Part IV–A, which only three Justices have joined. It appears that six Justices of the Court treat the result in Apodaca as a precedent and therefore do not subscribe to the analysis in PartIV–A of JUSTICE GORSUCH‘s opinion.

This graph (as best as I can tell) charts the votes in the majority.

I will update the post as I make my way through the 87-page opinion.

Update: The remainder of this post explains the complicated breakdown of the Ramos majority.

Part II-B

Justices Gorsuch, Ginsburg, Breyer, and Sotomayor joined Part II-B . This brief section (pp. 9-11 of the slip opinion) tries to make sense of Apodaca v. Oregon:

So what could we possibly describe as the “holding” of Apodaca?

Really, no one has found a way to make sense of it. In later cases, this Court has labeled Apodaca an “exception,” “unusual,” and in any event “not an endorsement” of JusticePowell’s view of incorporation.³⁴ At the same time, we have continued to recognize the historical need for unanimity.³⁵ We’ve been studiously ambiguous, even inconsistent, about what Apodaca might mean.

Justice Kavanaugh did not join Part II-B.

Part IV-A

Justices Gorsuch, Ginsburg, and Breyer joined Part IV. Justices Sotomayor and Kavanaugh did not, for different reasons.

 

Part IV-B-2

Justices Gorsuch, Ginsburg, Breyer, and Sotomayor joined Part IV-B-2 and Part IV. Justice Kavanaugh did not join Part IV-B-2 and Part IV.

 

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President Donald Trump signed an executive order on Saturday that will provide some temporary relief from tariffs for some American businesses—but the order will not apply to tariffs imposed by Trump himself on imported steel, aluminum, or goods from China.

Even the businesses that could benefit from the change will have to find time to fill out additional paperwork before they get any relief. In a statement released Sunday, U.S. Customs and Border Protection (CBP) explained that “this payment flexibility will be available only for importers with significant financial hardship.” As with so much of the Trump administration’s trade policy, it appears this relief will be contingent on federal bureaucrats picking winners and losers.

Even though its scope seems limited, the new tariff policy is roughly akin to the Trump administration’s earlier move to defer the federal income tax deadline from April 15 to July 15: People and businesses will still have to pay, but the delay will keep additional liquidity in the market. It would be better to lift those tariffs permanently, of course, but even a 90-day delay in payments will provide some flexibility to businesses currently facing a coronavirus-induced cash crunch.

“Any tariff relief is good news, but the benefits of this short-term deferral of duties are limited,” says Bryan Riley, director of the free trade initiative at the fiscally conservative National Taxpayers Union Foundation. “At least the executive order seems to acknowledge the reality that tariffs are paid by Americans, not by China or anyone else.”

Coming from the Trump White House, which has insisted for years that tariffs aren’t paid by Americans but that they somehow function as a tax on foreign producers, this is a confusing stance. On one hand, lifting some tariffs as a form of economic stimulus—even if only on a temporary basis—is a welcome sign, and an acknowledgment that it is indeed Americans who pay the cost of those import duties.

On the other hand, if lifting some tariffs is good for American business, why not lift all of them? Trump doesn’t seriously believe that the tariffs he’s imposed on steel, aluminum, and Chinese imports are magically not paid by Americans too, right? But that’s exactly what his latest galaxy brain trade maneuver seems to suggest.

Or, as The Wall Street Journal drolly explains: “The administration’s defense of tariffs has complicated efforts to delay payments, according to people familiar with the debate. Mr. Trump has often said Chinese or other exporters pay the tariffs. In fact, U.S. importers pay them and frequently pass the extra cost on to American retailers, wholesalers, and consumers.”

Indeed, the federal government may have lifted tariffs weeks ago in response to the COVID-19 pandemic if not for Trump’s commitment to the fantasy world where Americans don’t pay his tariffs. In mid-March, more than 100 businesses and trade associations sent a letter to the White House asking the president to immediately lift tariffs as a form of economic stimulus. Days later, a bipartisan group of lawmakers and Treasury Secretary Steve Mnuchin sent a letter to Trump urging the president to approve a 90-day deferral in tariff payments.

By March 28, CBP was reportedly preparing to do exactly that. But when he was asked about those plans at a press conference, Trump called the report “fake news” and then took steps to block the tariff relief, as The New York Times reported earlier this month.

Practically, Trump’s partial deferral of tariff payments will apply to about half of all tariffs charged to American importers. Prior to the Trump administration’s ramping up of American tariffs in a series of steps since March 2018, the federal government collected about $36 billion in annual tariffs. By 2019, that total had doubled to $72 billion, largely thanks to the tariffs on steel, aluminum, and Chinese-made goods that won’t be exempted under the new executive order.

Keeping those tariffs in place, says Dan Ikenson, director of trade policy studies for the Cato Institute, a libertarian think tank, “presumably inoculates Trump from having to concede that his duties on China are actually paid by US importers.”

“The burden on importers, according to this formulation—and, well, if logic’s not your strong suit or your just willfully ignorant—is caused by the [tariffs that predated the Trump administration], but not the China or steel tariffs,” Ikenson tells Reason.

That Trump has finally agreed to offer some tariff relief for American companies is a sign that there might be some limits to the White House’s ability to ignore economic reality. But doing so will force his supporters to warp themselves into ever-more-ridiculous shapes to defend the president’s tariff policy, which now seems to be that some tariffs are paid for by Americans but others are not.

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Many readers have asked when the Kindle version of my forthcoming book Free to Move: Foot Voting, Migration, and Political Freedom, will become available. I am happy to be able to announce that it is now available for preordering, and will be delivered to your device by April 23. Hard copies will likely not be available until sometime in late May, and could be delayed, depending on the situation with coronavirus lockdowns and its impact on Oxford University Press’ delivery facilities. But they too can be preordered on Amazon and other sites.

I have previously pledged to donate 50% of the royalties from Free to Move to charities serving refugees, and I am happy to reiterate that commitment now, as the need has become even greater.

Here is the publisher’s description of the book:

Ballot box voting is often considered the essence of political freedom. But it has two major shortcomings: individual voters have little chance of making a difference, and they also face strong incentives to remain ignorant about the issues at stake. “Voting with your feet,” however, avoids both of these pitfalls and offers a wider range of choices. In Free to Move, Ilya Somin explains how broadening opportunities for foot voting can greatly enhance political liberty for millions of people around the world.

People can vote with their feet through international migration, by choosing where to live within a federal system, and by making decisions in the private sector. These three types of foot voting are rarely considered together, but Somin explains how they have major common virtues and can be mutually reinforcing. He contends that all forms of foot voting should be expanded and shows how both domestic constitutions and international law can be structured to increase opportunities for foot voting while mitigating possible downsides.

Somin addresses a variety of common objections to expanded migration rights, including claims that the “self-determination” of natives requires giving them the power to exclude migrants, and arguments that migration is likely to have harmful side effects, such as undermining political institutions, overburdening the welfare state, increasing crime and terrorism, and spreading undesirable cultural values. While these objections are usually directed at international migration, Somin shows how a consistent commitment to such theories would also justify severe restrictions on domestic freedom of movement. That implication is an additional reason to be skeptical of these rationales for exclusion. By making a systematic case for a more open world, Free to Move challenges conventional wisdom on both the left and the right.

And here are some early endorsements and reviews:

“It is the best book on geographic mobility and exit that has been written to date, and… I am happy to recommend it heartily.”—Tyler Cowen, Marginal Revolution, author of Stubborn Attachments: A Vision for a Society of Free, Prosperous, and Responsible Individuals

“In this excellent book, Somin makes a compelling case that migration –or foot voting—provides far more political power than voting. Any one voter has a trivially small chance of altering an election, but any household can choose a new state and local government by simply moving.This insight implies that devolving power to local governments will generate far more political voice than any conceivable reform to national elections. Freer international migration would empower even more people to choose their own government. Somin’s case is strong, his thinking is clear, and his writing is eloquent.”—Edward Glaeser, Fred and Eleanor Glimp Professor of Economics, Harvard University, and author of The Triumph of the City

“Ilya Somin shows that mobility—the freedom to move from here to there—might be the most underrated underpinning of a free society. It is especially important in America, where states can compete with one another to have social policies welcoming to enterprise and liberty.Voting is important; so is what Somin calls ‘foot voting.'”– George F. Will, columnist, Washington Post, and author of The Conservative Sensibility

“This eminently readable, tightly-argued, and compelling book is a model for how empirically-informed democratic theory ought to proceed. Somin shows us that in modern democracies, even when everyone has equal voice, that voice is usually close to worthless. Taking political freedom seriously requires a serious solution: foot voting. We need to ensure everyone has the right and power to move and work where they please. Exit beats voice almost every time, and the competition isn’t even close. Somin deftly considers and rebuts every major objection to his view. In the end, the conclusion is inescapable: the arguments for democracy don’t so much justify participatory democracy; they instead justify real freedom of movement.”– Jason Brennan, Robert J. and Elizabeth Flanagan Family Term Professor of Strategy, Economics, Ethics, and Public Policy, McDonough School of Business, Georgetown University; author of The Ethics of Voting

“Ilya Somin has done it again, producing a compelling new book, rich with insights about democratic theory, law, and economics. Free to Move takes a familiar idea-that people should be allowed and encouraged to choose the entities that govern them by moving between jurisdictions-and shows why it is valuable and how taking it seriously as a form of political choice provides a clear set of answers to some of our most pressing social problems. Those who share Somin’s belief in the value of ‘voting with your feet,’ will see the scope of their commitment pushed by his consistency and range, and those who do not will find themselves challenged and perhaps even convinced.”– David Schleicher, Professor, Yale Law School

“Many find majority voting with ballots to be the highest guarantor of liberty… Ilya Somin brilliantly and accessibly points to the central,additional role of voting with your feet — moving to a place with better policy—in protecting liberty. His book mines a deep vein of law and philosophy, but you’ll find mercifully little jargon here.What you will find is a book that gives to common assumptions a taut and compelling challenge, and might leave you transformed. It offers a new way to think about international migration, but not just that. It is nothing less than a proposal for a higher form of democracy, built on the critical roles of both ballot-voting and foot-voting as guardians of freedom.”— Michael Clemens, Director of Migration, Displacement, and Humanitarian Policy, Center for Global Development, author of The Walls of Nations

The book was obviously written before the coronavirus crisis, so it only briefly mentions the danger of contagious diseases as a possible justification for migration restrictions. But I have addressed this issue in greater detail here. See also this excellent post by economist  Bryan Caplan.

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Earlier today, USA Today published my new op ed on federalism and the coronavirus crisis. Here is an excerpt:

President Donald Trump provoked widespread criticism last week when he claimed he had “total” authority to reopen the economy, thereby overriding lockdown orders issued by numerous state governments. Democratic governors, such as Andrew Cuomo of New York, pushed back, arguing that such use of federal power would be “a total abrogation of the Constitution,” which leaves such decisions to the states.

The dispute is, perhaps, the latest example of liberal Democrats using constitutional federalism to combat Trump.

More recently, the White House issued guidelines for reopening that are merely advisory. But Trump has not repudiated previous assertions of total authority and could potentially resort to them again if states do not act as he wishes.

At the same time, however, others on the left contend that the coronavirus crisis justifies weakening constitutional constraints on federal power, so as to ensure a cohesive national policy. For example, University of Illinois law school Dean Vikram Amar argues that constraints on federal power to regulate interstate commerce unjustifiably prevent the federal government from ordering a nationwide lockdown, and could also block it from requiring mandatory vaccination of all Americans when and if a vaccine becomes available. Others also argue against constitutional barriers to a comprehensive nationwide lockdown enforced by the federal government and a federal vaccination mandate.

If such arguments prevail, they will set a dangerous precedent. In a time of crisis, it is tempting to assume that we need to concentrate power as much as possible. But centralization can often make things worse rather than better. Moreover, consolidations of power that arise during crises often continue long afterwards.

I previously wrote about federalism and the coronavirus crisis here.

 

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Belgium’s number, which just passed 500 deaths per million, is the highest of any substantially sized country. (I set aside tiny San Marino, in which the rate is more than double that.) In the U.S., this would be equivalent of about 160,000 deaths, rather than the 40,000 we’ve suffered so far, though of course we should keep in mind the possibility that different countries’ numbers are hard to compare because of different reporting practices. And while it looks like the Belgian death rate is not increasing any more, and may even have begun to decline, there still seem to likely be many more deaths to come.

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By a vote of 6-3, the U.S. Supreme Court held that the Constitution requires unanimous jury verdicts for convictions in criminal cases. Writing for the Court in Ramos v. Louisiana, Justice Neil Gorsuch explained that ” the Sixth Amendment right to a jury trial—as incorporated against the States by way of the Fourteenth Amendment—requires a
unanimous verdict to convict a defendant of a serious offense.” (Whether jury unanimity is required in cases involving “petty offenses” was not before the Court, as noted in a footnote to the opinion.) This decision overturned the conviction of Evangelisto Ramos, who was convicted by  nonunanimous jury in Louisiana. Nonunanimous jury verdicts in criminal cases were also allowed in Oregon.

The division among the justices in Ramos is quite something:

GORSUCH, J., announced the judgment of the Court, and delivered the opinion of the Court with respect to Parts I, II–A, III, and IV–B–1, in which GINSBURG, BREYER, SOTOMAYOR, and KAVANAUGH, JJ., joined, an opinion with respect to Parts II–B, IV–B–2, and V, in which GINSBURG, BREYER, and SOTOMAYOR, JJ., joined, and an opinion with respect to Part IV–A, in which GINSBURG and BREYER, JJ., joined. SOTOMAYOR, J., filed an opinion concurring as to all but Part IV–A. KAVANAUGH, J., filed an opinion concurring in part. THOMAS, J., filed an opinion concurring in the judgment. ALITO, J., filed a dissenting opinion, in which ROBERTS, C. J., joined, and in which KAGAN, J., joined as to all but Part III–D.

Here’s how that breaks down: Six justices (Gorsuch, Thomas, Ginsburg, Breyer, Sotomayor, Kavanaugh, agreed with the Court’s bottom line conclusion, but Justice Gorsuch’s opinion is only joined in its entirety by three justices (Gorsuch, Ginsburg). Justice Alito’s dissent was joined by Chief Justice Roberts and Justice Kagan, in part.

Justice Thomas wrote separately because he wanted to “make clear that this right applies against the States through the Privileges or Immunities Clause of the Fourteenth Amendment, not the Due Process Clause.” Historically, the Court has incorporated rights against the states through the Due Process Clause. Many academics think this is an error, and Justice Thomas has long indicated he does as well.

One issue dividing justices in Ramos is the treatment of precedent, as the decision overturned Apodaca v. Oregon, a 1972 decision upholding the constitutionality of nonunanimous criminal convictions in state court. Both Justices Sotomayor and Kavanaugh wrote separately to discuss the reasons for overturning Apodaca. (Sotomayor also wanted to note the “racially biased origins” of laws allowing nonunanimous juries to convict people of criminal offenses.)

Justice Alito’s dissent stressed the importance of stare decisis. This issue also likely explains the Court’s lineup here, as Chief Justice Roberts and Justice Kagan are the Court’s most vocal defenders of upholding precedent (though not always in the same cases). Justice Kagan has become particularly vocal in her defense of stare decisis, so it’s also no surprise that she does not join the portion of Alito’s dissent that explains why, in his view, the argument for overturning Apodaca was not as strong as the argument to overturn precedents in other recent cases.

(See also Eugene’s post on the opinion below.)

Today’s second opinion, Thryv v. Click-to-Call Technologies, concerning inter partes review of patent claims also had an interesting 7-2 lineup (if, perhaps, less interesting subject matter). Justice Ginsburg wrote for a seven justice majority. Justice Gorsuch, joined by Justice Sotomayor, dissented. Interestingly, Justices Thomas and Alito declined to join a small part of Ginsburg’s majority, and Sotomayor declined to join the last part of Gorsuch’s dissent.

Today’s third opinion (about which I hope to say more later), was Atlantic Richfield v. Christian, an interesting case involving the availability of state law remedies for hazardous waste site cleanups under the federal Superfund law. The Court was unanimous on some issues, but split 8-1 on one question, and 7-2 on another.

Chief Justice Roberts wrote the opinion for the Court in Atlantic Richfield. In the first part of his opinion, the Court unanimously concluded it had jurisdiction to hear the case. As noted above, the remainder of the opinion was either 8-1 or 7-2. Justice Alito dissented in part, on the basis that the Court was too permissive in allowing state court challenges to federally approved Superfund cleanups.  Justice Gorsuch, joined by Justice Thomas, dissented from a different portion of the opinion which would preclude landowners from pursuing state common law remedies for hazardous waste site cleanups. In Justice Gorsuch’s view, the federal Superfund statute was intended to supplement traditional state law remedies, not supplant them. (Time permitting, I’ll write a separate post on this case after I’ve had the time to dig in.)

Two other tidbits: Justice Gorsuch was the one justice to write an opinion in all three cases decided today. Also, in today’s orders, the Supreme Court denied the Solicitor General’s request for oral argument time as an amicus for the first time in a decade.

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