Tag: in-the-news

Nick Gillespie speaks with Dr. Wolf von Laer of Students for Liberty, and Sean Themea of Young Americans for Liberty about how campus activism may change after the murder of Charlie Kirk. They discuss how the tragedy has affected their organizations, what it means for the future of student organizing, and how libertarian ideas about free expression and individual rights fit in today’s campus climates.

• Producer: Paul Alexander
• Audio Mixer: Ian Keyser

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In Washington today, the word “emergency” is a magic key; it unlocks powers Congress never granted, suspends the discipline of regular order and decorates bloated bills with provisions too dubious to pass on their own. What was once meant to be a narrow exception for genuine crises has become a routine pretext for government overreach—a means of inflating executive power and corroding the nation’s fiscal credibility.

Start with the most brazen claim, and one soon to be scrutinized by the Supreme Court: that a president may impose sweeping tariffs under the International Emergency Economic Powers Act (IEEPA) merely by declaring that a half-century of trade deficits constitutes an emergency.

Tariffs are taxes paid by Americans, and the Constitution assigns the power to tax to Congress. Yet the Trump administration argues that the president’s tariff power is beyond reproach because only he is the designator of emergencies.

The Washington Post‘s George Will summarized the stakes crisply: a statute being read as a roving license to restructure the economy and give the president “unreviewable power to impose taxes…of whatever amount, and for as long as he chooses.” Amicus briefs from across the political spectrum press the simple point that the IEEPA doesn’t authorize this, and an emergency cannot be a long-running condition that has coincided with rising American prosperity.

Congress, for its part, has effectively built a parallel budget out of the emergency label. Whenever caps on discretionary spending or pay-as-you-go (PAYGO) requirements threaten to bite, the label becomes something more. Use it and the spending simply doesn’t count against agreed-upon limits or require offsets.

The best recent accounting by the Cato Institute’s Dominik Lett puts the emergency-spending price tag at about $12.5 trillion (adjusted for inflation) since 1991. Count the roughly $2.5 trillion more in interest on the related debt and the number is around $15 trillion altogether.

Over the last decade, roughly one in every 10 dollars of budget authority has worn an emergency tag. That’s not a safety valve; it’s a standing workaround that has already swallowed even the modest savings promised by the Fiscal Responsibility Act two years ago.

What makes this practice so easy? It’s largely self-policed.

On paper, the Office of Management and Budget has a five-part test for emergency spending: It should be necessary, sudden, urgent, unforeseen, and not permanent. Congress rarely forces itself to demonstrate, item by item, that all five prongs are met. There’s no neutral referee. Once “designated as an emergency” appears in the bill and the president concurs, the amounts are exempt from caps and PAYGO scorecards.

And because this budget label is separate from more specific “national emergency” declarations under statutes like the Stafford Act or the National Emergencies Act, it quietly turns into a vehicle for funding routine projects. It’s such a procedural magic word that fiscal guardrails all but disappear.

Finally, even when a real crisis exists, so too does opportunism. Emergency bills move fast, face weak scrutiny, and become irresistible means for unrelated projects or those that Congress would never approve otherwise. This dynamic marred the 2012-13 Hurricane Sandy package and has recurred in other disaster bills, not because relief is illegitimate but because speed plus political cover invites provisions that would die in regular order.

The pandemic supercharged the pattern. Much of the $1.9 trillion American Rescue Plan had little to do with COVID-19. Only a small share went to direct health measures. Hundreds of billions funded unrelated legislative wishes, such as $350 billion for state and local governments whose revenues had already recovered, and large education and social welfare expansions designed to last well beyond the pandemic.

It was the emergency label that exempted this spending from budget rules, allowing legislators to pass a wish list of permanent programs under the guise of temporary relief. It’s having long-lasting effects, with the shutdown being in part about making some of the “emergency” measures—like the expanded Obamacare premium tax credits—permanent.

The stakes of the abuse of emergency labelling are no longer abstract. Interest costs on debt that results from the extra spending are crowding out core functions of government. Americans are hammered with “emergency” tariff costs. The next true crisis will arrive with less room to maneuver if we keep burning credibility on manufactured ones.

A republic that treats emergencies as a governing philosophy is a republic that lives without its safeguards. We must put the word back in its place: as one describing something rare, reviewable, temporary, and paid for.

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My new article, “Immigration is not Invasion” is now available on SSRN. Here is the abstract:

In recent years, state governments and the second Trump Administration have increasingly advanced the argument that illegal migration and cross-border drug-smuggling qualify as “invasion” under the Constitution, and the Alien Enemies Act of 1798 (AEA). If these arguments are accepted by courts, or if they rule the issue is committed to the unreviewable discretion of the executive, the consequences will be dire. Such an outcome would pose a grave threat to the civil liberties of both immigrants and US citizens. It would also enable state governments to initiate war without federal authorization. This article makes the first comprehensive case against claims that illegal migration and drug smuggling qualify as “invasion.” As James Madison explained in 1800, “Invasion is an operation of war.” Illegal migration and drug smuggling do not qualify.

Part I summarizes the history of the “invasion” debate and currently ongoing litigation over it. Part II explains why the broad interpretation of “invasion” is manifestly wrong under the text and original meaning of the Constitution. The concept does not include illegal migration or drug smuggling. This conclusion is supported by the constitutional text, extensive evidence from the Constitutional Convention and the ratification process, and references to “invasion” in the Federalist Papers.

In Part III, I consider the meaning of “invasion” in the Alien Enemies Act of 1798. The text and public meaning indicate it is essentially the same as that in the Constitution. Under the Act, an invasion requires a military attack. This reality is not changed by the fact that many Americans die as a result of overdosing on illegal drugs, or by recent US military attacks on suspected drug smugglers in international waters.

Part IV outlines the dire implications of the broad view of invasion. State governments would have the power to wage war in response to undocumented migration and smuggling, even if such warfare were not authorized by Congress. This would be a major undermining of Congress’ power to declare war, and threatens to involve the United States in warfare at the behest of a single state government. Even worse, the broad view would also effectively give the federal government the power to suspend the writ of habeas corpus at any time. These dangerous implications strengthen the originalist case against a broad definition of “invasion.” They also cut against the broad definition from the standpoint of various living constitution theories of interpretation.

Finally, Part V explains why courts should not defer to the president or to state governments on either the meaning of “invasion” or the factual issue of whether an “invasion” – properly defined – has actually occurred.

I feel a little silly to write so much about the meaning of just one word. But the meaning of this one has major implications for civil liberties and our constitutional system. Despite what SSRN says, the article is not actually 101 pages long. It’s about 65 pp. with an extensive appendix of references to “invasion” at the Constitutional Convention, state ratification conventions, and the Federalist Papers.

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Fresh off of trouncing competitors like former Gov. Andrew Cuomo and Curtis Sliwa in this week’s election, future New York City mayor Zohran Mamdani has announced his transition team. One name stands out as an especially bad harbinger of how Mamdani’s mayoral tenure might play out: Lina Khan.

Khan, who served as Federal Trade Commission (FTC) chair under Joe Biden, will be one of four cochairs of Mamdani’s transition team.

“The poetry of campaigning may have come to a close last night at 9, but the beautiful prose of governing has only begun,” said Mamdani yesterday. “The hard work of improving New Yorkers’ lives starts now.”

Of course, one transition team member isn’t going to make or break whatever agenda Mamdani has planned. And there are reasons enough to worry about that agenda with or without Khan involved. For instance, during his victory speech, Mamdani—a democratic socialist—opined that there’s “no problem too large for government to solve, and no concern too small for it to care about.”

That’s a disturbingly totalitarian view of the role of the state.

But when it comes to helping improve ordinary people’s lives, Khan is hardly up for the job—not if history is any indication.

Before and during her tenure as FTC chair, Khan was known for her insistence that the role of antitrust law should not be upholding a consumer welfare standard—that is, a focus on how business activities and consolidation will affect prices and outcomes for consumers. Khan argued for abandoning the consumer welfare standard in favor of a more nebulous framework, one in which competition was good for its own sake and the government should intervene against big businesses to protect the position of their smaller competitors, whether or not it resulted in consumers getting a better deal.

She was known to oppose mergers and acquisitions based on the size of the company involved, notwithstanding whatever positive effects might accrue from that size. Like Tim Wu and other “neo-Brandeisian” antitrust theorists, Khan seemed to believe that bigger was always bad.

In practice, this resulted in her launching or continuing a number of ill-conceived or ill-fated actions against big tech companies, including a failed bid to block Microsoft from acquiring Activision Blizzard and a failed attempt to ban Meta from buying a virtual reality fitness app. Even when successful, the Khan FTC’s antitrust suits seemed sort of silly, aimed at stopping minor inconveniences, like it taking six clicks to cancel Amazon Prime (which was fewer clicks than it took to submit a comment to the FTC about the lawsuit).

It would be one thing if Khan had big ideas about big changes meant to meaningfully improve people’s lives, and libertarians simply disagreed with the wisdom of those ideas. But she had big ideas—involving lots of government mandates, meddling, and overreach—about achieving small changes that no one really wanted, or that failed to significantly impact or improve things for anyone.

She railed against the kind of tech integrations and innovations that surveys routinely show that consumers appreciate. She helped funnel big Biden administration talk about bringing fairness and competition back to the U.S. economy into rules covering the minutia of how hotel bills are displayed. She presided over anti-tech antitrust investigations, of which the only benefit seems to be securing government settlements.

Khan’s time as FTC chair amounted to a lot of government time and activity attempting to micromanage markets with very little practical effect on people’s lives.

Meanwhile, Khan tried to expand the FTC’s regulatory authority beyond what was allowed and further erode the separation of powers. Despite Congress considering a bill to ban noncompete clauses, Khan’s FTC enacted a ban itself. It was later struck down, with a judge declaring that the FTC lacked the authority to do this.

It’s unclear whether Khan will eventually have a permanent role in Mamdani’s mayoral administration or is simply a transitory advisor. But either way, her involvement doesn’t bode well for anyone hoping that Mamdani will somehow be less overreaching than he seems or for anyone hoping that he’ll succeed at anything majorly transformative. Khan’s forte seems to be in turning radical-sounding ideas into absolutely mundane executions that still, somehow, flop.

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A federal judge issued a temporary restraining order on Wednesday in response to an emergency class action lawsuit filed on behalf of individuals who have been held at the Broadview Immigration and Customs Enforcement (ICE) facility near Chicago. The order requires that the facility provide detainees with clean bedding and space to sleep, basic hygiene supplies, showers, free water, and three full meals a day. Detainees must also be given their prescribed medications and be allowed to communicate with attorneys. The decision comes the day after five detainees testified in court to the inhumane and unlawful conditions they experienced while at the facility. 

“People shouldn’t be sleeping in plastic chairs. They shouldn’t be sleeping on the floor,” United States District Judge Robert Gettleman said on Wednesday.

The emergency lawsuit, filed in the United States District Court for the Northern District of Illinois’ Eastern Division on October 30, accuses the Department of Homeland Security (DHS), Customs and Border Protection (CBP), and ICE of denying detainees adequate access to counsel, food, water, and medical care. An emergency hearing was held on Tuesday, in which Broadview detainees described being held in a cell with roughly 150 other people, sleeping on the floor for days near overflowing toilets, inoperable showers, and a lack of hygiene products like toothbrushes, toothpaste, and soap while at the facility. 

One of the detainees who spoke on Tuesday was Felipe Agustin Zamacona, a 47-year-old man who was born in Mexico but has lived in the U.S. for 31 years. He said the cell was never mopped or swept, and had an overflowing garbage can, according to CBS News. He told the judge that “it smelled like a dirty washroom, like sweat, like a dirty locker,” reported The New York Times. Although detainees were given two or three cold sandwiches a day, Agustin only ate his first one after subsequently getting sick with diarrhea.

The complaint alleges that “people are forced to use a toilet that is located inside their crowded holding cell.” In some cells, these toilets are separated “by a partial wall that affords almost no privacy.” In others, the toilet “is entirely unseparated from the rest of the cell,” and “large windows in the holding cells allow men to see the women when they use the toilet, and women to see the men.” On Tuesday, Agustin said that when he went to use the bathroom, he had to wake someone up who was either sleeping on or near the toilet. 

The testifying detainees also described being denied access to an attorney while being pressured to sign legal documents that would relinquish their rights. Another witness, Claudia Carolina Pereira Guevara, who attended the hearing remotely from Honduras, recounted signing papers after she was denied an attorney. “They said, ‘Well, what for?’ because I didn’t have anything I can do anymore,” she testified. “I had my children [in the U.S.] and I didn’t want to leave them behind,” she continued. 

After sleeping on the floor of the dirty cell, Pereira fell ill, unable to feel her feet, and began vomiting. Her request to go to the hospital was denied, she said, but she was taken out of the cell in a wheelchair and given an unknown medication. Pereira eventually signed the deportation paperwork written in English—a language she does not speak or understand—after she was told she would be held at the facility until she signed. She was then deported to Honduras and separated from her children.

In response to the allegations, Justice Department attorney Jana Brady argued that Broadview is a temporary holding facility designed to hold detainees for 12 hours, does not provide beds, and has limited space for things like in-person meetings with counsel. However, the facility has taken on a new role as the epicenter of immigration enforcement and ongoing protests in Chicago since the beginning of “Operation Midway Blitz.” Amid its evolving role, Brady said, “The government has improved the operations at the Broadview facility over the last couple of months.” “It’s been a learning curve,” she added. 

NBC News reported that during the Tuesday hearing, Judge Robert W. Gettleman described the conditions at the ICE facility as “disgusting” and “unnecessarily cruel,” and was disinclined to accept Brady’s argument that conditions at Broadview should be excused because of its “temporary” nature. “The evidence has been pretty strong that his facility is no longer just a temporary holding facility,” Gettleman said. “It has really become a prison.” 

Plaintiffs requested that Gettleman declare the Broadview policies and practices unconstitutional and demand that certain living conditions be met, such as providing detainees with adequate space, bedding for sleeping, clean clothing, full meals three times a day, and basic hygiene supplies. Plaintiffs also asked that detainees be able to meet with or schedule confidential calls with legal counsel within three hours of detention at the facility. Brady pushed back on these conditions and said providing everything plaintiffs asked for “would effectively halt the government’s ability to enforce immigration laws in Illinois.” 

Gettleman’s Wednesday order directs Broadview to comply with many of the plaintiffs’ demands. But he stopped short of ordering the facility closed if conditions couldn’t be met within three days, stating that the order “honors the discretionary functions of running an institution like this and making it as workable as possible,” and that he didn’t expect the facility to be in full compliance with the order “at the snap of a finger.”

Gettleman ordered the attorneys to provide an update on the facility’s status by noon on Friday and scheduled the next hearing for November 19.

On paper, the order is a notable win for detainees at Broadview who have had to suffer inhumane conditions at the facility. But only time will tell if the DHS, CBP, and ICE actually comply with the order and take the rights of detainees seriously, or if they will ignore the court as the Trump administration has made a habit of doing.

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This morning, Judge Patrick Bumatay of the Ninth Circuit gave the opening remarks at the Federalist Society Convention.

First, Judge Bumatay opined on the topic of horizontal stare decisis:

Second, bloodthirsty originalists must not hesitate to overturn non-originalist lower-court precedent.

Judges don’t work with a blank slate. We often encounter non-originalist, bad decisions. And trust me–as a Ninth Circuit Judge, I face this problem more than most.

To be clear, I’m not talking about vertical stare decisis. No serious originalist judge would question our duty to follow the Supreme Court. As Justice Gorsuch recently said, “Lower court judges may sometimes disagree with th[e Supreme] Court’s decisions, but they are never free to defy them.”
What I am talking about is horizontal stare decisis. By that, I mean: when should circuit judges overturn their own non-originalist precedents? Spoiler alert—the answer is “always.”

I’ve written about stare decisis and originalism in the lower courts here.

In his Story Lecture, Judge Oldham said that horizontal stare decisis should not exist at all. Judge Bumatay takes a more restrained approach, and argues that in every case, circuit precedents that are inconsistent with original meaning should be overruled. Of course, on the Ninth Circuit, Bumatay lacks the votes to take these actions. But an originalist judge should do everything in his power to pursue that worthwhile cause. Invariably, that will mean writing dissents from denial of rehearing en banc.

In the Ninth Circuit, we have a rule that we must sit en banc to overturn precedent. So this might mean we must call more cases en banc. I understand that seeking en banc review may have ramifications for collegiality on the court.
I know the sting of having a decision that I’ve written be later vacated en banc. And collegiality is important.
But collegiality isn’t the end all and be all. To me, collegiality is more about how we treat each other, when we are off the bench. Outside of our writings. In those situations, we must always treat each other respectfully.

I agree with Bumatay that collegiality does not mean declining to vote for en banc. I made a related point last year:

I for one, reject the notion that collegiality entails a willingness to reconsider your views. It is always a judge’s role to find the truth, and determine the best answer to a particular legal dispute by his or her best lights. And that process primarily entails weighing the arguments advanced by counsel, and deciding which side should prevail. To be sure, judges on a multi-member court will lobby one another for this position or that position. And to maintain relations, it is important to be willing to listen. But I do not think collegiality requires anything more than listening.

Second, Judge Bumatay discusses the gravitational pull of originalism:

In applying precedent, we must “bend” it in the direction of the original public meaning. That doesn’t mean that we can take a “cramped reading” of precedent to “functionally overrule” it. But neither should we take an overly broad view of the precedent—allowing it to expand its reach. Instead, if we can find good-faith distinctions, then we should do so and return closer to first principles.
As I said, our duty is to apply the Constitution—not to extend precedent.
Justice Kavanaugh had it right when he explained that text, history, and tradition must function as the “gravitational pull” on our interpretation of precedent. So we can respect precedent even while pulling it in the direction of the Constitution’s original meaning. So we don’t need to wait for cases with a complete blank slate or questions of first impression for the Constitution’s text and history to come into play.

I first developed this theme of originalism’s gravitational pull back in November 2012, shortly after that year’s FedSoc convention:

So, in this sense, originalism’s gravitational pull tugs the Constitution towards original meaning, even if originalism is not advanced in a case that circles the orbit of New Federalism. Originalism is the hidden force that causes other things to shift, even if we don’t directly see why. This is why “this far and no further” works, even when originalist arguments need not be made. Thus, scholars need to continue developing originalism so that the force, the pull, the tug remains to keep our Constitution shining bright and strong.

I thank Randy Barnett for offering this weighty idea as a way to explain the importance of originalism in our modern legal landscape. (See also Dworkin’s related thoughts on “gravitational force.”).

Third, Judge Bumatay would not be limited by the so-called party presentation principle:

Judges are never obligated to follow the parties’ agreement to incorrect law. After all, the parties don’t need to ensure the best interpretation of the law. Judges do. So even though judges generally rely on the arguments the parties advance, we should never cede our duty to independently interpret the law.
In my view, once a party raises a legal theory, judges may consider anything subsumed by that theory. So we can’t completely refashion the parties’ claims, issues, or legal theories.

But within a particular theory, judges may consider any arguments, sources, or authorities that may be helpful—including those not raised in the briefing. So even if the parties don’t specifically make originalist arguments in a constitutional case, judges are free to—and indeed must—engage with the historical understanding of the constitutional text.

I am not a huge fan of the party presentation principle. Indeed, Judge Oldham made a related point. He said it was wrong to follow a circuit precedent when no originalist arguments were even presented.

Judge Bumatay offered a challenge to the judges in the room:

To the judges in the audience, I’m here to say that we can do originalism—not once or twice in a career—but once or twice in a day.

I immediately thought of Chief Judge Pryor’s lecture at the University of Florida last year. He offered this observation.

My view comes from my experience. In two decades of judicial service, I have had to determine, as a writing judge, the original meaning of a constitutional provision in so few appeals that I can count them on one hand, and I would still have a digit left to count another.

There is a lot here to consider, and there is a brewing debate about lower-court originalism.

What a great way to kick off the convention.

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During oral argument in the tariff case, there was a recurring theme: if the Court agreed with the President that IEEPA grants this power, it would take a veto-proof majority in Congress to claw back that power.

Justice Gorsuch described delegation as a one-way ratchet that, as a practical matter, cannot be retrieved.

JUSTICE GORSUCH: Okay. You emphasize that Congress can always take back its powers. You mentioned that a couple of times. But don’t we have a serious retrieval problem here because, once Congress delegates by a bare majority and the President signs it –and, of course, every president will sign a law that gives him more authority –Congress can’t take that back without a super majority. And even –you know, even then, it’s going to be veto-proof. What president’s ever going to give that power back? A pretty rare president. So how –how should that inform our view of delegations and major questions? . . . But what happens when the President simply vetoes legislation to try to take these powers back? . . . Yeah. So Congress, as a practical matter, can’t get this power back once it’s handed it over to the President. It’s a one-way ratchet toward the gradual but continual accretion of power in the executive branch and away from the people’s elected representatives.

Justice Barrett returned to Gorsuch’s question:

JUSTICE BARRETT: Okay. Then a question just to follow up on Justice Gorsuch’s thing about how could Congress ever get this delegation back, you said, well, listen, you point to the –Congress’s ability to terminate emergencies, which it’s done. But, if Congress ever wanted to get the tariffing power back, it would have to have a veto-proof majority because, regardless of the emergency, so if Congress wanted to reject the –let’s say that we adopt your interpretation of the statute. If Congress said, whoa, we don’t like that, that gives a president too much authority under IEEPA, it’s going to have a very hard time pulling the tariff power out of IEEPA, correct? . . .  But –but definitively interpreting a statute that grants presidential power makes it particularly hard to get the President to not want to veto something, which, as Justice was pointing out –Justice Gorsuch was pointing out, has him lose power. All right.

I’ll admit, I was a bit perplexed by this concern. In any case where the Supreme Court adopts an interpretation of a statute that the President favors, it will take a veto-proof majority to modify that statute. Congress routinely revises statutes after a Supreme Court decision. In some of those cases, the President may favor the Supreme Court’s reading, but for many institutional reasons, acquiesces to Congress’s approach.

For example, President George H.W. Bush vetoed the Civil Rights Act of 1990, and Congress failed to override that veto. But one year later, Congress enacted the related Civil Rights Act of 1991. William Eskridge talked about this history here. This law was not a separation of powers bill, like IEPPA, but this history illustrates how politics works. I don’t think the Justices fully realized that there are political costs to the President vetoing a bill. Indeed, pocket vetoes are used largely to avoid the spectacle of having to veto a bill.

This issue reminded me of a colloquy in Trump v. Anderson. Recall that a Section 3 disability could be removed by a 2/3 vote of each house–the same standard for overriding a veto. Justice Kagan posed this question:

Elena Kagan: — because, if Congress has the ability to lift the vote by a two-thirds majority, then surely it can’t be right that one House of Congress can do the exact same thing by a simple majority.

Jonathan F. Mitchell: Yeah, there certainly is some tension, Justice Kagan, and some commentators have pointed this out. Professor Baude and Professor Paulson criticized Griffin’s Case very sharply.

Elena Kagan: Then I must be right. (Laughter.)

In case you forgot, Jonathan Mitchell represented Trump in this case.

The Justices are very concerned about the difference between a simple majority to pass a statute, and a 2/3 vote to reverse that action. Under the current political dynamic, the override of a veto is fairly rare. But I don’t think that likelihood should inform how the Justices decide cases. The Court can only resolve judicial matters, and let the political chips fall where they may.

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To understand why Democrats overperformed in this week’s elections, look to Argentina. 

Last month, Argentinian president Javier Milei won an unexpectedly large electoral affirmation, as his party significantly outperformed expectations by more than doubling its congressional representation in what was widely seen as a referendum on his agenda.

Over the past two years, Milei, the world’s most libertarian national leader, has slashed spending, cut red tape, and made his top priority restoring economic order and prosperity to a country that has long been a socialist basket case. Critics warned that his policies would be destructive, destabilizing, and unpopular. But not only did he deliver the country’s first balanced budget in over a decade, he oversaw a radical decline in inflation—from 200 percent when he entered office down to 32 percent last month. 

Despite warnings that the country would reject Milei’s brand of austerity, the country responded with a strong vindication of his policies. In a post-election analysis, The New York Times noted that Milei’s message was that only he offered a “path for a country that has undergone years of runaway inflation under high-spending populist governments.” The report pointed to Milei’s economic record to explain his party’s win: “Many Argentines had grown tired of prices swinging wildly from day to day and of a ruling class they considered to be corrupt and irresponsible.” 

The same report said Milei’s outsized victory was “unexpected.” But perhaps it shouldn’t have been, because economic stability and low inflation are what voters the world over clearly want. 

When voters swept President Donald Trump into office for the second time last fall, large majorities of his voters gave the economy poor marks and said their own family finances had worsened over the years. Under President Joe Biden, the American economy had been wracked by the biggest surge in inflation in forty years. American voters punished the party that was in power when that happened. 

This was true all over the world. After the pandemic, inflation skyrocketed globally, and in election after election, voters rejected ruling parties. 

Inflation and economic instability have long been political losers: Look at Ronald Reagan’s victory over Jimmy Carter in 1980, and his ensuing near-sweep of states in 1984 after taming a decade of out of control price hikes. The post-pandemic years have further reinforced this lesson. 

This week’s referendums reinforced that idea, as voters rejected Trump’s economy by voting for Democrats who promised to bring down the cost of living. As Derek Thompson wrote today, Democrats in the three biggest races embraced a message of affordability and pinned the blame for persistent economic anxiety on Trump. 

In Virginia, Abigail Spanberger won the governorship running ads that focused on high prices. In New Jersey, Mikie Sherrill made opposition to Trump a major campaign focus and promoted an agenda she said would address the cost of living. And in New York City, Zohran Mamdani relentlessly repeated the word “affordability,” promising to lower the cost of everything from rent to child care to halal cart meals while hammering opponent Andrew Cuomo for not even saying the word. 

I am profoundly skeptical that Mamdani’s spendy socialist policy agenda will actually bring about the price stability and widespread prosperity he promises. His economic policies have repeatedly failed where they’ve been tried. They have more than a little in common with the Peronist malaise that Milei is helping Argentina escape. Don’t cry for the petite socialists of Brooklyn; they brought this on themselves. 

But both New Jersey and Virginia are states which, within recent memory, have shown themselves willing to elect Republican governors. And the message from those states is clear: Trump isn’t delivering on the economy. NBC’s exit polling found that in Virginia, the economy was the number one issue, and voters who prioritized the economy preferred Spanberger by a 20 point margin. Notably, in the 2021 Virginia gubernatorial election, while Biden was president, the economy was also the number one issue—and economy-focused voters preferred the Republican, Glenn Youngkin. 

When the economy isn’t working—when it doesn’t feel like it’s working—voters punish the party in power. And under Trump, despite some strong headline numbers from stock market performance, prices have increased, hiring has ground to a near halt, and while it’s not official, some data suggests that much of the country—more than 80 percent of counties—may already be in a recession. Trump’s nationalist economic agenda of freewheeling tariffs, ad hoc quasi-nationalizations, and workplace immigration crackdowns is raising prices, creating massive uncertainty for domestic producers, and resulting in labor shortages and complications for employers. That’s affecting firms, who have pulled back on hiring, and consumers, who are faced with rising prices for consumer goods and a worryingly frozen job market. 

Despite his campaign promises, Trump’s mercantilist economic agenda simply isn’t coming through.

As Reason‘s Eric Boehm recently wrote, it can fairly be called a kind of Republican socialism. Socialism didn’t work in Argentina. It won’t work in New York. And it won’t work for America, when implemented by extra-legal executive power, either. Milei didn’t just make campaign promises and appear on stage with a chainsaw. He delivered tangible results on economic issues voters care about. He won an electoral mandate by turning away from failed socialist policies, and the failed economies they produce. Trump, and the rest of America’s political class in both parties, should do the same. 

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Nobody likes it: Yesterday, the Supreme Court heard oral arguments in President Donald Trump’s tariff case. Trump has invoked the International Emergency Economic Powers Act (IEEPA) as legal justification for his tariffs, imposed in some form on nearly all imports from nearly all countries.

The “emergency” that grants him such economic powers, in Trump’s telling, is either the trafficking of fentanyl into the U.S. (in the case of the tariffs on Canada, Mexico, and China) or, more confusingly, the (rather normal) existence of trade deficits.

“Reasonable people might disagree with the notion that any of that should be considered an emergency,” writes Reason‘s Eric Boehm. But legally, some of these things are “besides the point” as the real question is whether the executive “has broad authority under IEEPA to declare any ’emergency’ that he sees fit” and “whether the law allows tariffs to be imposed once an emergency has been declared.”

The justices did not seem sympathetic to the arguments put forth by Trump’s team.

“Could the president impose a 50 percent tariff on gas-powered cars and auto parts to deal with the ‘unusual and extraordinary’ threat…of climate change?” asked Justice Neil Gorsuch. “It’s very likely that could be done,” responded Solicitor General D. John Sauer, on behalf of the administration. “I think that has to be the logic of your view,” responded Gorsuch. (More from Boehm here.)

Sauer is really leaning in on the "tariffs are regulatory, not revenue" argument.

Again, this is a disastrous strategy. That doctrine is long settled & it says, quite clearly, that tariffs are taxes.

— Phil Magness (@PhilWMagness) November 5, 2025

Much of yesterday’s interrogation centered around whether the IEEPA grants the president the power to “regulate,” “block,” “nullify,” “restrict,” “modify,” but not the power to impose taxes—which is what tariffs are. The word tariff is nowhere in the act. Sauer argued that the executive has the power to “regulate” per the IEEPA, and that “tariffing is the quintessential way of regulating importation.” But justices did not seem compelled by this. At one point, Chief Justice John Roberts told Sauer that tariffs are “the imposition of taxes on Americans, and that has always been the core power of Congress.”

It’s a good thing they didn’t buy the administration’s argument. “This gets to the core of the tariff case, which goes beyond a normal dispute over policy and asks a serious question about the separation of powers in the constitutional system,” writes Boehm. “If the chief executive can read new meanings into the words that Congress has written in the laws it passed, then there are effectively no limitations on what the president can do.”

Some of the justices made this explicit. Gorsuch, who was especially pointed yesterday, offered that accepting the administration’s logic and the powers they’ve assumed would result in “a one-way ratchet toward the gradual but continual accretion of power in the executive branch and away from the people’s elected representatives.”

“Congress, as a practical matter, can’t get this power back once it’s handed it over to the president,” he correctly noted.

Gorsuch: Could IEEPA be used by a future president to declare a climate change emergency.

Sauer: Yes, it's very likely that could be done.

— Phil Magness (@PhilWMagness) November 5, 2025

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Scenes from New York: Exit poll takeaways:

In New York, the non-degreed tried valiantly to save the city from the degree-holding horde. There just weren't enough of them. From exit polls: pic.twitter.com/tdF3zfVZ5V

— Byron York (@ByronYork) November 5, 2025

I'm sorry, but this is fucking ridiculous pic.twitter.com/IDZJn5kDm0

— Liz Wolfe (@LizWolfeReason) November 5, 2025

(Not an amazing chart, but sourced from this exit polling.)

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QUICK HITS

• “The Trump administration announced on Wednesday that it would cut 10 percent of air traffic at 40 of the nation’s busiest airports, in a move that analysts said would force airlines to cancel thousands of flights while the administration tries to push Democrats to end the government shutdown,” reports The New York Times. Transportation Secretary Sean Duffy says that air traffic controllers have not received paychecks since mid-October. A source inside the Federal Aviation Administration tells CNN that New York City’s three airports, plus those around D.C., plus Chicago, Atlanta, Dallas, Phoenix, and Seattle will be impacted, but the full list has not yet been released.
• “The Heritage Foundation is erupting in open revolt against its president, Kevin Roberts, as the right-wing think tank struggles to deal with internal and external anger over his defense of former Fox News host Tucker Carlson,” reports The Washington Post. “The furor began after Carlson invited Nick Fuentes, a white nationalist who routinely espouses antisemitic views, onto his popular podcast. Roberts then posted a video that castigated a ‘venomous coalition’ and ‘the globalist class’ for attacking Carlson, whom Roberts called ‘a close friend of the Heritage Foundation.’ Numerous Heritage staffers and conservative figures said the comments played on antisemitic tropes.” Now, Roberts has released multiple apologies—which have only quelled some of the concerns of his staff and donors—and held a staff meeting that seemed to result in little resolution.
• Fascinating definition:

The BBC defines "democratic socialism". pic.twitter.com/Sxk52XB68Y

— Sam Bowman (@s8mb) November 5, 2025

The post Justices Don't Buy Tariff Argument appeared first on Reason.com.

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Civitas published my new essay, titled Eliminating Liberal Institutional Asymmetries. This piece ties together several themes I’ve discussed in recent months. From the introduction:

Since the New Deal, progressives have captured virtually every public institution and most private institutions in America. This result should not be surprising. O’Sullivan’s First Law proclaims, “All organizations that are not actually right-wing will over time become left-wing.” The all-too-common fear that power will be abused in the future presumes that power is not already being abused, regardless of who wins elections. When Democrats are in power, these institutions tend to instinctively support Democrats. When Republicans are in control, those institutions instinctively resist Republicans. Given these asymmetries, concerns about what would happen when the shoe is on the other foot are misplaced. Perhaps the single greatest opportunity of our current political moment is to eliminate these entrenched institutional asymmetries permanently. The political playing field should be level, allowing both sides of the political aisle to compete evenly in the arena of ideas. 

I focus on three asymmetries: the civil service, the academy, and the legal profession.

I hope this essay stimulates some debate. See you all at NLC!

 

The post New in Civitas: "Eliminating Liberal Institutional Asymmetries" appeared first on Reason.com.

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