In recent weeks, libertarians have been debating whether there’s any good reason for us to support Romney over Obama, or vice versa. In contrast to 2008, when many libertarians endorsed Obama, few if any are making the case for him this year. There is near-universal agreement among libertarian commentators that Obama’s presidency has done more harm than good.

But there is some debate over whether Romney is likely to be any better. Stephen Green, the “Vodkapundit,” makes the case for Romney here. Doug Mataconis argues against. As for me, I voted for McCain in 2008 because it was the only way to maintain divided government and avoid a massive increase in government spending and regulation. Sadly, most of my 2008 fears about the effects of an Obama victory have been realized.

This year, however, I think the presidential choice is a much closer call than in 2008. The primary difference is that a reelected Obama would have to deal with a Republican-controlled House and at most only a narrow Democratic majority in the Senate. That greatly limits the potential harm he might do in a second term.

In this post, I break down the tradeoff between Obama and Romney on several of the most important issues for libertarians: Government spending and regulation, the fate of Obamacare, the courts, the War on Drugs and immigration, and foreign policy. I picked these issues because they all have a massive impact on large numbers of people. Ultimately, I think that Romney deserves a slight edge. But there are many uncertainties involved. Because it’s such a close and complicated call, this post will unfortunately be much longer than I would prefer. Even so, I will have to leave consideration of Libertarian Party nominee Gary Johnson for a future post, which I will write when time allows.



I. Government Spending and Regulation.

Few libertarians (or even non-libertarians) would deny that Obama has presided over a massive increase in government spending and regulation. Obamacare alone is the biggest new federal program in decades. And then we have the stimulus, Dodd-Frank, the Consumer Finance Protection Bureau, and many other examples too numerous to list. It’s pretty obvious that Obama and Democrats are unlikely to repeal any of this, and may well try to expand it if they get the chance.

The real question is whether Romney is clearly better on these issues. The answer is far from clear. In recent weeks, the GOP has repeatedly positioned itself as the “party of Medicare,” loudly decrying Obama’s real and imagined cuts to the program. They also deny planning to cut Social Security and defense, the federal budget’s two other behemoths.

On the other hand, vice-presidential nominee Paul Ryan is famous for having proposed a long-term budget plan that really does impose some tight constraints on entitlement spending. And in the last presidential debate, Mitt Romney briefly suggested that he would means-test Medicare benefits. It is therefore possible to interpret the GOP’s position, as conservative policy analyst Yuval Levin does. He claims that “The point of criticizing these cuts to pay for Obamacare is not to say that Medicare spending should not fall, but that there are different ways to reduce spending on Medicare.” I fear, however, that that is not the message the voters are getting, and that the GOP’s current posturing on the issue will make it difficult for them to actually cut Medicare in the event of a Romney victory.

I might be more reassured if Romney had a long record of principled commitment to limiting government spending and regulation. In reality, however, Romney is a man with a long record of saying and doing almost anything that will help his political prospects. To the extent that he does have principles, they are technocratic, not pro-free market.

Another relevant consideration is that major cuts to federal spending will require bipartisan support, and a deal along the lines of that proposed by the Bowles-Simpson Commission. Such a deal may be more likely under divided government (which historically has limited spending more than united government). Under united government, the opposition party has strong incentives not to agree to spending cuts, letting the majority party take the full blame for whatever happens. And a Romney victory likely means united GOP government, since the GOP will almost certainly retain control of the House and has a good chance of getting to 50 seats in the Senate (enabling VP Ryan to break ties in their favor). On the other hand, it’s possible that Romney and a narrow but determined GOP congressional majority could peel off enough moderate Democrats to make a deal politically viable.

Overall, the outlook on federal spending is equivocal. It’s possible that Romney and the GOP really are committed to cutting federal spending in a big way and will be able to carry out that plan. But it’s also quite possible that they are just as bad as Obama on this issue or even worse (if united government leads to higher spending).

On the other hand, Romney is likely to be better than Obama on regulation. The president appoints hundreds of important officials to various regulatory posts, and the pool of GOP appointees – while hardly uniform – is much more pro-free market than the Democratic one.

I would therefore give Romney a slight edge in this field. But I can see a case for calling it even or even a slight edge for Obama (if you believe that divided government is more likely to lead to a Bowles-Simpson-like deal).

II. Obamacare.

A vote for Obama is a vote for retaining Obamacare. Even if the Republicans take control of both houses of Congress, he will veto any bill repealing it, and the GOP won’t have the votes to override the veto.

Here again, the interesting question is whether the GOP will be any better. On the one hand, Romney and other GOP leaders have often called for repeal of the law. On the other hand, Obamacare is largely a national version of Romney’s own Massachusetts health care plan. The genuineness of his commitment to repealing it is at the very least suspect. I think he will push for repeal if doing so is politically advantageous for him, but not otherwise. Currently, the polls still show widespread opposition to the law, but that could yet change, especially since several specific parts of the bill are popular. That said, Romney could choose to make a push against Obamacare precisely because his party’s base harbors deep suspicions about his commitment to that cause, and conservatism more generally. If he’s going to throw a bone to conservatives, he might want to do so on an issue where their position is (at least for the moment) in line with the majority of the public.

However, a serious effort to repeal Obamacare will encounter strong Democratic resistance, especially in the Senate, where any GOP majority is likely to be narrow. It’s possible that Romney will not want to invest as much political capital as is necessary to break that resistance. He might content himself with a show of opposition, followed by giving up and blaming the Democrats for the failure. Alternatively, he could push through repeal of a few minor provisions of the law, while leaving most of it in place.

Ironically, had the Supreme Court invalidated Obamacare in its entirety, that would strengthen the libertarian case for Obama. We would not have to worry about repealing the law, because it would already be gone. And with a Republican majority in the House, Obama would have little chance of reenacting it.

Overall, the chances of repealing Obamacare are much better with Romney in the White House than Obama. But, should he win, I doubt that the probability of actually repealing large parts of the law is any better than 50-50. But 50-50 is a lot better than zero.

III. The Courts.

The next president may well appoint as many as two or three Supreme Court justices, as well as numerous lower-court judges. And, as Ted Frank points out, the GOP has a big edge here. On major libertarian issues such as property rights, federalism, and limits on political speech, the recent record of Republican-nominated judges – while far from perfect – is vastly better than that of the Democrats. Most, though not all, GOP judges are willing to provide some substantial protection for constitutional property rights, enforce some substantial limits on the scope of federal power, and protect political speech against campaign finance regulation. The Democrats by contrast would deny property rights near all protection, reject almost all structural limits on federal power, and believe that there should be few or no constraints on government regulation of political speech when that regulation takes the form of regulating financing of speech – especially speech financed by corporate entities.

It is certainly true that there are some constitutional issues where Democratic judges are better than Republican ones from a libertarian perspective, most notably wartime executive power and the rights of criminal defendants. But with the exception of Clarence Thomas’ positions on executive power, most of the GOP judges still favor enforcing substantial limits on government in these areas. No GOP judge, for example, comes close to concluding that the Fourth Amendment allows government to undertake any searches it considers “reasonable” or useful. By contrast, the liberal justices votes and opinions in cases such as Kelo, Raich, the individual mandate case, Morrison, and others show that they are willing to let government take property for almost any reason it wants, and allow the federal government to impose any regulations that might have even a slight effect on interstate commerce.

Republican judges are far from uniformly good on libertarian issues. But the Democratic ones are overwhelmingly bad. Moreover, cases such as Kelo and the individual mandate decision have sensitized conservatives to the importance of appointing judges committed to federalism and property rights. That reduces the chance that future GOP nominees will waffle on these issues, as some past ones have.

Finally, the younger generation of conservative jurists and legal scholars have been significantly influenced by libertarian thought on many issues. This is far less true of their liberal equivalents. Whether you choose to blame liberals for this situation or libertarians, it’s a crucial point. Other things equal, a party’s judicial nominees tend to reflect the dominant schools of thought among its legal elites.

IV. The War on Drugs and Immigration.

There are a wide range of social issues that I could consider. But I choose these two, because of their enormous importance. Both involve the lives and freedom of millions of people. Immigration restrictions forcibly consign hundreds of thousands to Third World poverty and oppression for no good reason. The War on Drugs imprisons hundreds of thousands and kills tens of thousands every year.

It’s clear that the Democrats are on average more libertarian than the GOP in both cases. Liberal Democrats are far more likely to favor curtailing the War on Drugs and liberalizing immigration law than conservative Republicans. In recent months, some Republicans have called for a different policy on immigration, and Paul Ryan has an equivocal record on the issue. Nonetheless, there is still a significant difference between the parties here, accentuated by Barack Obama’s recent decision to allow hundreds of thousands of children of illegal immigrants to stay in the United States.

However, the Obama Administration’s overall record on drugs and immigration has been a very poor one. On immigration, Obama has massively increased deportations to record levels far exceeding those that prevailed under the Bush administration. On the War on Drugs, Obama has reneged on campaign promises to end federal prosecutions of medical marijuana distributors in states where medical marijuana is legal, and has refused to cut back on the War on Drugs in any other way. The Marijuana Policy Project reports that this administration is the most hostile to marijuana legalization in history. It’s possible that a second-term Obama will act differently on these issues. But so far, I see no evidence to support such a conjecture.

If Obama won’t make things better, it’s possible that Romney could make them worse. In practice, however, it’s highly unlikely that Romney would put a high priority on either of these issues. He and the GOP more generally have a long list of more urgent priorities. Drugs have not been a major focus of the GOP for a long time. And on immigration, the party is facing significant internal divisions, and a fear that aggressive action on that front might alienate Hispanics.

There are a few other social issues on which Obama does enjoy a clear margin of superiority over the Republicans, most notably gay rights. In my view, the magnitude of this issue is not as great as that of the questions covered above, because most gay rights issues are going to be decided at the state level, and changing public opinion make it likely that we will get gay marriage in most states within the next couple decades regardless of who wins the White House in 2012. But if you are a libertarian who believes that the fight for gay marriage is the major issue of our time, I can understand choosing Obama for that reason.

IV. Foreign Policy

I’m only going to address foreign policy in this post briefly, especially since it’s already too long. This issue is one that has long divided libertarians internally. I myself am more hawkish than the average libertarian. But I’m not as hawkish as those Republicans who claim that the threat of radical Islamism is comparable to that posed by the Nazis and Communists and requires the same scale of response. In addition, I think we should cut defense spending, which also puts me to the left of the GOP.

Relatively dovish libertarians might understandably be tempted to support Obama, and perhaps that is the right position for them. But they should remember Obama’s constitutionally dubious war in Libya, and his endorsement of broad executive power. They should also remember that presidents usually find it difficult to wage war without significant bipartisan support in Congress. Because the GOP includes a large contingent of committed hawks, they are less likely to oppose a war initiated by a Democratic president than Democrats are to oppose a war initiated by a Republican one. The Democrats for their part, often view Republican-initiated wars with suspicion, but raise much less of a fuss when their own man is in the White House. Mitt Romney may be more likely than Obama to want to launch an ill-advised war. But he may be less likely to actually succeed in doing so.

The Bottom Line

From a libertarian point of view, I think Romney has a significant advantage over Obama on judges and a less clear but still important edge on Obamacare. The issues of government spending, immigration, and the War on Drugs are very close, with little clear edge either way. On foreign policy, much depends on what kind of libertarian you are, since there is great internal disagreement on these issues. My own position is probably more hawkish than most Democrats, but less so than most Republicans. So it’s a close call.

In sum, I would give a narrow edge to Romney, because he is likely to be better in two major areas, and not significantly worse on the rest. But notice that this conclusion rests on some difficult calculations about what Obama and Romney are likely to do in office. If you think that a second-term Obama will push for large-scale immigration reform or that we are more likely to see a budget deal including major spending cuts with him in the White House, then you have good reason to reach a different conclusion than I just did. Ditto if you think there won’t be any Supreme Court vacancies in the next four years (which is certainly not impossible). Finally, libertarians might choose different issue priorities than I do. If your main issue is promoting gay marriage, then Obama is your man. If you prioritize cutting taxes, Romney is a much easier choice for you than for me. I have tried to focus on those issues that have the greatest impact on the largest number of people. Other libertarians might have other priorities.

However you look at it, for libertarians the choice between Romney and Obama is definitely a choice between evils. I think Romney is probably the lesser evil of the two. But it’s not an easy call.

UPDATE: Readers might wonder why I have focused heavily on spending but very little on taxation. The reason is that cutting spending is the real key to limiting government in the long run. Spending that isn’t paid for by current taxation will still have to be paid for later. Sadly, the “starve the beast” approach to limiting government, under which tax cuts themselves restrict spending, doesn’t seem to work.