The Peruvian Robes

>> Troy Senik: God, John, why are you wearing a tie?

>> Troy Senik: Welcome back to the Law Talk podcast from the Hoover Institution, coming to you, as we always do, from the faculty lounge of the Epstein and Yoo School of Law, where, yes, we still accept Groupons. I'm your host, Troy Senik, former White House speechwriter, co-founder of Kite & Key Media, and three time runner up for Waffle House employee of the month.

And I am joined, as always, by the Roxy and Belma of the conservative legal movement. They are Richard Epstein, the Peter and Kirsten Bedford senior fellow at the Hoover Institution, the Lawrence A Tisch professor of law at NYU and senior lecturer at the University of Chicago. And John Yoo, visiting fellow at the Hoover Institution, the Emmanuel S.

Heller, professor of law at the University of California, Berkeley, and former deputy assistant attorney general in the Bush administration. Fellas, good to talk to you. Here's my opener for you guys today. Graduation season is upon us, and I was recently a part of one of these ceremonies. First time in a long time I've been to one, and I had sort of forgotten what they're like.

So I have to ask you guys, as faculty members, I mean, there's the pageantry of the whole thing. You guys get to wear the cool outfits that kinda make you look learned, kind of make you look like one of the gayer characters from Hogwarts, but it's a lot.

And you guys are doing this over and over again. When you're faculty are these things enjoyable or are they just utter drudgery after a while?

>> Richard Epstein: Well, there are two. There's a distinction to be made. There are generally two ceremonies. One is a mass ceremony done at the university level in which the entire student body is collected.

They'll do this in a large place like Madison Square Garden or on the lawn of the University of Chicago. And there are no individual activities there. It's just the dean, on behalf of the school gets a nod from the president. Then there is the small unit in which individual students go up and they get some kind of distinction, either a tap on the shoulder or a book or whatever it is.

The first one is sheer torture because it is so large and so impersonal. The second one, if you have students whom you know and you'd like to see, it can be fun. You sit in the pews, you chat with the guy next to you and the faculty and so forth.

So those are tolerable. I mean, I've actually missed more lately than not for a whole variety of reasons. But when I was regularly teaching in the spring quarter of Chicago before this week, this year, rather. I used to go to that one, and I enjoyed that one because it was an old thing.

The NYU one is by definition much bigger because it's a larger class. So I would say what you say is not completely true, but it's certainly a case. If you wanted to take attendance to these things and had financial penalties, you could certainly improve the turnout.

>> Troy Senik: I bet you like them, John.

I bet you like the finery.

>> John Yoo: I actually don't go to them as much as I used to. They go on forever, like three or 4 hours. And one problem we have is that the students select a speaker. They select a faculty speaker, then they select some other speaker.

And so they, of course, are gonna pick, I don't know, these speakers who just bore the hell out of me, or they're crazy left wingers or I just can't take. So I used to try to grade exams during the whole thing. That was also weird. I try to find things.

I will tell you one true story. Once I was grading exams, and to make it to three or 4 hours, you can't get up and leave. I got a gigantic 7-11 Big Gulp of Diet Coke.

>> Troy Senik: My God.

>> John Yoo: And then something, I think maybe one of these killer bees came, and I spilled it all over the floor of the faculty section of the graduation area.

I don't think anybody wanted me back after that one. It's hard to get through them all. I know, I understand that for the families, it's great, of course, cuz they wanna see their kid. They spent all this money on their education. This is probably the last graduation they're ever gonna have.

And so they walk across the stage, and they shake hands with Dean, get their photo taken, and we get to wear these $5 black nylon robes. But that's getting Troy excited, actually hearing about that.

>> Troy Senik: Easy.

>> John Yoo: But I don't understand. I mean, they're kind of like a product of the past.

I wonder, actually, if we go to all this, you know, decentralized, on the Internet classes and education clearly moving that way, whether we're going to have any more physical graduations at all. We'll just have Zoom graduations now.

>> Richard Epstein: I remember what I loved about going to these things.

I received an honorary degree from Peru, and so I got this south american gown that I could wear with a tassel on top and a medal in front, and it all the way went down. And it turns out I was the fashion king of the situation.

>> Troy Senik: This sounds like a yours.

 

>> Richard Epstein: Yeah, could you send a picture in so that the blue yeti can post that on-

>> John Yoo: I have to be able to post.

>> Richard Epstein: I don't even know where my gown is now. This is very scary, so I have to dig it out.

>> Troy Senik: Richard, you sound like if it was from Peru, like there was an alpaca sitting on your head.

 

>> Richard Epstein: No, it was a little tuft on top of it. But I would say this in terms of aesthetics. The American gowns lack a certain degree of flair and originality. And these other gowns, which have 3 or 400 more years behind them, have a degree of elegance and solemnity that the American degrees don't have.

So I was standing out because it was one of a kind. And so I like going there, making a fashion statement every time I wore my gown to a graduation.

>> Troy Senik: My God. All right, guys, let's start here. It's already falling off the front page. But we did get the Durham report earlier this week.

It's been over three years now since Bill Barr appointed John Durham as special counsel to conduct this investigation about what exactly happened as the Justice Department pursued these allegations that there was collusion between the Trump campaign and the Russian government. Ultimately, of course, resulting in the Mueller report.

And now that this report is out, you've got some Trump sympathists, people like Tom Fitton, for example, saying that this is a disappointment. It didn't go far enough because Durham didn't take out any big fish. On the other hand, you've got people saying this whole thing was a snipe hunt.

I mean, the news analysis piece, this is what we called it, on the report that came out in the New York Times, ran under the headline, after years of political hype, the Durham inquiry failed to deliver, and the subhead refers to it as a dysfunctional investigation. Those are sort of the antipodes here.

John, what was your reaction to the report?

>> John Yoo: I think both sides are wrong. I think, one, just because you can't prosecute someone doesn't mean something seriously wrong happened here. The only thing, and that brings me to the second point, is the real solution to this has gotta come from somewhere else other than a jury in a courtroom, which means gotta come from Congress, and ultimately has to come from the electorate.

When you look at the facts, and I think many of which were known, but to see them all put together this way, I'm very disappointed in the FBI and the Justice Department, which oversees it. You have a story here of the Clinton campaign paying for a manufactured. Hoax, which on its face, just wasn't plausible, that Donald Trump was somehow in cahoots with the Russians.

There was no, as Durham patiently shows, there was just never any evidence that this had ever happened, that there was no shred of actual real evidence completely made up and manufactured. And then you have, sadly, as Durham shows, a biased FBI either naively or intentionally ran with open arms to grab this made-up hoax and then use the vast powers of the government to investigate.

And here's the third part, to investigate the presidential nominee of a major party. That's the red line that we were never supposed to cross again after Watergate. And so that's what the Durham portion, unfortunately, as Durham says, you can't really prosecute the major players for this and throw them in jail.

He tried to put little fish in jail and couldn't do it. He had two of his three cases he brought ended up in outright acquittals. So I think the real answer has to be Congress has to have hearings. Congress has to think about restructuring the FBI. Things has to be about restructuring the Justice Department.

And if people want to hold individuals accountable, they got a kick at these people out of office. A lot of these Obama alumni are still in the Biden administration. So the answer has to be political, not legal.

>> Richard Epstein: What does one say about all of this? I think it's kind of a sad letdown.

Durham was not able to get any convictions, but much of that was on sort of. When we're not quite sure the theory is right, we're not quite sure you meet the burden of proof. It seems to me that this was a meticulous and careful report forth. The theory that somehow or other that it exonerates the Clinton people or the Democratic Party writ large, I think would be preposterous.

What Charlie Savage wrote inside the New York Times is kind of sad because when he used to write up in Boston, I think he was a kind of a more independent and tough-minded guy. But this thing just looked like it came right out of New York Times Central without the slightest bit of thought in what's going on.

But I think the point that John made is the one that has to be stressed. You look at the FBI today and consider everything else that's happened, and you look at what happened during the last campaign with respect to all the earmarks of Russian disinformation. It turns out that the same kind of tactics are still alive and well in the Democratic Party.

Now, what does one say about Trump? Well, the number of epithets that you could describe, his temperament, his disposition, his judgment, and so forth are very large. But then you have to ask the following question. Which prosecutions, which abuse of presidential authority did he make that is comparable to the ones that happened either with the Mueller report.

Or with all the stuff that comes out from Adam Schiff or all the stuff having to do disinformation? And it turns out he's all bark and no bite, and that the democratic party is all bite, even though it's a pious thing when it comes to everything else. So it's really an amazingly sad kind of commentary to see the way that this game is going to be played out.

I don't think this will have a huge effect on anything going forward, but I do think that we're going to have to worry a great deal about the way in which the FBI and everything else walks. Because we now see all the difficulties happening as the Biden administration seems to be slow walking.

All the investigations on Hunter Biden, they're pointing a real piranha as a prosecutor to take after Trump and so forth. And so that the concerns that one has about bias inside the establishment, it seems to me, are more and more confirmed. I think, in terms of abuse of executive authority, Biden has it heads and shoulders over Trump.

I think Mister Garland is a worse attorney general than I had ever imagined, one of the worst of all time. You see these obvious signs like the picketing outside the White House. There was that coming out of the White House in front of the Supreme Court justices. And Ed Meese writes up, says, how is the rule of law going to be expected if nobody is going to enforce the law to the extent that it applies to democratic operatives or protesters?

So my view is this is not gonna make a huge difference in the election, but it should be reminded to us that the whole system is very badly handled and very badly treated. And that what the Democrats have learned from all this, if they run fast enough and talk fast enough, they'll not be caught for any of the things that have happened to them.

So I suspect they're silently rejoicing at the same time sniffing at the report and having all of these dismissive remarks. It's not that they will ever put forward a point by point refutation. They don't have that in them. But since there's no prosecution and since the report is charged in long, they think they're gonna be able to weather it out in the long run by just sniping at it today and forgetting about it tomorrow.

 

>> Troy Senik: Richard, I do want to get you to respond to something that John mentioned, the potential of restructuring the FBI. You mentioned this in passing. Durham says in his report that regarding the kind of behavior that he's chronicling at the FBI that I want to read you the quote.

The answer is not the creation of new rules, but a renewed fidelity to the old. He's kind of making this argument that at some level this is a matter of institutional culture and the character of the people working there. Do you think that that is sufficient? Or are you thinking more along Johns lines that they're actually do need to be sort of structural safeguards or structural rearrangements put in place?

 

>> Richard Epstein: If I knew what they were and I knew that they would work, I might support them. At this point, I don't have an idea which they are. But my view about this goes back to my view of business and so forth. And the simple question you have to ask, would you rather have a good contract or a good contracting party?

And the answer that you learn after long complications, if you get a good contracting party, that is good people in key places, all the difficulties with respect to the agreements tend to disappear. But if, in fact, you have bad people in perfect contracts, they will always find ways to undermine them.

So I think that attention has to be paid to the selection process and the appointments process. But I can't think of anything right now that would count as this. Remember, we have the Horowitz report. We get this report. It's not as though there wasn't activities about this. And then it turns out we actually get the investigation by the courts about whether they've been taken in.

So this thing has been covered a million times. But if you have a bunch of people there who are political partisans and they're given palate, you've got real difficulty. I know one thing I would always love to see in virtually every one of these cases is anytime you have an investigative panel or commission, it's got to be bipartisan.

So if you're thinking about reparations, you can't only put on people who are in favor of them. And if you're doing an investigation of Mister Mueller is going to do an investigation of the Republicans, you have to have some Republicans on that task force. I think that kind of thing would probably help.

But which Republicans you get when you have to put them on is tricky because you could get those who are anti Trumpers or those who are pro Trumpers. So I can't devise a set of rules that make me happy. I'm gonna come out with this. What you need to have is a bit more institutional integrity.

And I think we've had this stuff dissipate very rapidly over a long period of time. For example, and I'll just mention again, I tried so far without success to sue the Biden administration for throwing people off of all their commissions, including one John Yoo and so forth. You don't get anybody biting.

But that's the kind of behavior, when you take place the first guy, it's gonna happen again by the other party. And so when the Democrats decided to stonewall Miguel Estrada now, about 20 years ago. It set into place a pattern of mutual disrespect on confirmation hearings, which still leaves us in a hopeless situation.

And I do not know of any structural form that can deal with that. But I do know that when you have a situation where there's no comedy between the two parties that spreads over the terms of Congress, you're gonna get exactly the same kind of situation that we've had recently.

And that the same kind of situation that you see in the FBI.

>> Troy Senik: I want to move you guys over to something that is literally a local story, but has sort of symbolically become a national one, which, for better or for worse, seems to be a trend these days.

This is the case of Daniel Penny, this young marine veteran on the subway here in New York City earlier this month. When a homeless, mentally ill man with a long list of priors starts screaming at people on the train, making threats that seem pretty clearly to imply violence.

He's talking about being willing to go to jail for life. Daniel Penny puts him in a chokehold to subdue him, but it holds him down for long enough that by the time the authorities have gotten there, Jordan Neely, the homeless man, had died. And popular sentiment here in New York runs pretty heavily on Penny's side, I'd say.

Because it's very hard to ride the subway with any regularity and not have an occasion where you have some clearly disturbed person making some kind of scene. Not usually this explicitly menacing, which is part of people's anxiety about it, is you don't really know who's just off his meds and having a bad day versus who's gonna shoot up the train.

But most people in their bones want to be in the car with a guy like Daniel Penny. The Manhattan DA's office has subsequently filed a felony complaint of second degree manslaughter. They did not take it before a grand jury first. John, what do you make of that decision?

 

>> John Yoo: I think it's a terrible decision. I've looked at the video, I've actually studied this a little, the facts of what happened here. I know you're gonna like this, Troy. This reminds me of some kinda crazy Batman movie, because what's happened here is that the DA, right? Alvin Bragg, who we last met going after Donald Trump, is mostly well known for being one of these progressive prosecutors who has reduced prosecuting people in the city of New York for felonies.

I think I read that while he's been DA. Felonies in the major classes have gone up about 25%, and he has cut felony prosecutions by 50%. They should be going up, right? If felonies are going up, there should be more prosecutions. Yeah, he's cut them in half. So that contributes to the lack of law and order in New York City, particularly on the subways.

So what does he do? He prosecutes people for taking the measures they need to do to protect themselves because of the policies that he's imposed on the city. It makes no sense at all. It is like something out of some weird Batman movie. I know Troy hoards all the Batman comics under his bed still, even though Richard and I just learned that he just turned 40 years old.

 

>> Troy Senik: So happy birthday, process foul.

>> John Yoo: So I'd love to hear Richard's thoughts on whether the New York subway has become the state of nature, and we all have the right to use force now. But at the very least, even if the rule of law is going on in the New York subways, everyone has the right of self defense.

And the right of self defense asks, would a reasonable person in those same factual circumstances be able to use force because the. Or in this case, a person who died, pose an imminent threat of serious bodily harm or even death to penny or other people? I mean, I look at that video, and it's not just penny who thought that was the case, because there's two other people trying to hold him down, too.

This guy kneeling down, too. I can't believe that a New York jury of reasonable people would reject a claim of self defense here based on what you see on the tape.

>> Richard Epstein: Well, it would be probably defense of third parties in addition to self defense. Let me sort of just back off and say there are two things.

There's the brag factor, and then there's the prosecution. So suppose this was not brag, and somebody else came in there who had a consistent record of trying to prosecute people. And did not give people who did incredibly serious offenses, basically rehabilitation, some outhouse of one kind or another, but did not give any jail time associated with what was happening.

You do that, and then you see this case. This is the one that you wish to prosecute, as opposed to all the other. There's a kind of an equal protection dimension in the case that brag acts. Take him out of it, and then you have somebody who actually is sane with respect to his general policy, and he looks at this.

What would a sane prosecutor do? And I do not put Bragg in that casualty. And I think what would happen is you'd say, well, you'd use the chokehold. And the hard question you'd want to ask is not were you justified in some kind of physical restraint, but was this excessive force?

And if it was excessive force, was there any reason that he would have to know that, in fact, the person was likely to die from the operation? And if something that he could have done, I think that's actually a very, very hard question. Among these things, the usual rule in these cases when you do things like this is if you know that somebody is engaged in activity which has to be regarded as threatening.

What you do is you give the benefit of the doubt to the individual who used the force in order to restrain him. Nobody in their right mind would think that he was going after this guy or gunning for him in some particular way. And so I think, in the end, what people would say, it was regrettable.

I think that Penny would get out there and say, I'm so sorry that all this happened and that nobody will prosecute. I do not believe that he will be convicted in New York. I do ride the New York subways from time to time, quite often.

>> John Yoo: And when you start to see Richard, really?

You ride the New York subway even now?

>> Richard Epstein: Yes.

>> John Yoo: Are you kidding?

>> Richard Epstein: No.

>> John Yoo: You aren't? You're not?

>> Richard Epstein: I'm not on, I would say, most of the time in the subways. The first of all, they're much less crowded than they used to be because of the emptiness associated with the office.

And what happens is you do get a bunch of people coming in. Most of them are grifters. They have a hat and then they'll sing you a song and they'll pass the hat. You don't think, in effect, that those people are gonna hurt you. And what people do is they develop a way of looking down and avoiding the problem and hope that it will pass.

And it does.

>> John Yoo: I got it, Richard. I got it figured out. You should wear your little Peru graduation outfit on the subway. No one will come within 100 feet of you.

>> Richard Epstein: No, I think they'll mug me in order to get this valuable garment.

>> Troy Senik: You might get a couple bucks out of it.

There's a good song and dance act to be made here.

>> John Yoo: Yeah, people are gonna start throwing change in Richard's alpaca helmet there.

>> Richard Epstein: I mean, I think given the way in which things have gone with people being pushed off of platforms before coming trains and all the rest of this stuff, the city is very taut.

The crime wave is very hard. And I think the argument that John made that will make huge traction with anybody in the jury is if you have everybody and public officials falling down on the job. And then you have somebody who clearly knows what he's trying to do and trying to do well, the last thing you want to do is to punish that guy.

And so I think that it's almost certain to be in acquittal, I don't even think you'll get a grand jury to agree to go ahead with the actual criminal prosecution. But Brag is like this, I mean, the man literally has taken all, he's just lost all sense of proportion and balance.

The things that he tolerates are inexcusable. The things that he punishes are really quite crazy. I mean, just, if you go back to the Trump prosecution, there are a bunch of these cases having to do with missigned documents and so forth. And they usually plead out with $100 fine or something.

And now this same man saying, I'm only applying the law, wants to get, you know, 20, 30, or 40 years out of this by multiplying the kinds of offenses. And what Bragg does not understand is we must live with a system of prosecutorial discretion. But when you get selected prosecutions against targeted people, that isn't following the rule of law, it's abusing the rule of law.

And then when you start to prosecute other kinds of people while letting people who commit far greater offenses loose, it just completely destroys the confidence that everybody has in the public system. I mean, Chesa Boudin was recalled. I would hope that somebody in New York would think that maybe Bragg was worth a recall as well.

 

>> Troy Senik: One last question on this. To that point, John, many people have been quick to point out the exact same things that you guys are pointing out. That Brag is bringing these charges at the same time that he's prosecuting what even some of Donald Trump's biggest critics admit is a pretty weak case against him.

And then more to the point, as you guys have mentioned, that DA's office has otherwise been pretty lenient when it comes to crime. I have read suggestions in a few places lately that those kinds of political motivations are a good argument for why we shouldn't have popularly elected DAs, that it'd be better to move to something like the federal system where these are appointed positions and the executive can be held accountable.

What's your view on that?

>> John Yoo: I'm not sure. I mean, if you, if you look at the Durham report, you might say, gosh, we shouldn't have these lifelong bureaucrats in charge of the Justice Department. So, yeah, I actually tend to like elected Das because, and I think where everybody's been learning this, you know, for the last six, eight years, is there's a lot of political judgment that goes into what cases to bring.

As a prosecutor, you look at all kinds of things, like the seriousness of the crime, the deterrent effect. But ultimately, one of the most important factors is this prosecution in the public interest. Now, how the hell is a prosecutor supposed to know it's in the public interest? So we kind of think, well, being elected, you go out there and you tell the voters what you think is in the public interest.

Now, the thing about Manhattan, Richard's an inhabitant of this benighted isle, but on the island of Manhattan, they knew what they were getting. I mean, this guy Bragg made no secrets of what he wanted to do, just like Chesa Boudin out here in San Francisco or Kramer in Philadelphia.

These George Soros funded prosecutors are clear that they think there's been too many prosecutions brought. And they want to divert a lot of people away from prison and towards these different programs. And, I mean, yeah, I don't think Penny should be prosecuted, I think he has a right to self-defense.

On the other hand, this is what the people of Manhattan voted for.

>> Richard Epstein: Yeah, look, my own view about this is both systems have infinite imperfections associated with their operation. And what you can do is if you want to have appointed people, what you announce is that the political demagogues take over.

And then if you want to get rid of appointed people, like the ones in the FDI targeted by Mr you say people who are isolated from serious political checks will engage in all sorts of abusive activity. I think, in effect, that the structural remedies are extremely. Well, the structural choices are extremely iffy both ways.

And that with the only way that you can solve this is to get people in law will have some degree of personal integrity and judgment. And if you had appointed somebody like Alvin Bragg, I would have been screaming, if you elect somebody like Alvin Bragg, I'm screaming. He replaced, who was it?

Morgenthau, somebody who'd been around for a very, very, no, not him, very long time.

>> Troy Senik: Cy Vance.

>> Richard Epstein: Cy Vance, I mean, this guy has been in the office for 20-

>> John Yoo: But before him was Morgenthau.

>> Richard Epstein: Yeah, but now, okay, you get these two guys, and they're in office for 15 years, and you get one tenth of this kind of a problem that this guy can introduce.

And so you have to say, well, if the electoral system worked for 50 years, why doesn't it work in the last two? And I think the explanation is they both break down for the same reason, which is the very high level of polarization inside the political system is such that you get woke candidates who win, who now have a political mission, which they layer on top of that for justice.

And this started with George Floyd in many cases. And it's gonna continue so long as that form of political behavior becomes respectable. Now, will it change? New York City is what, 85% Democrat in Manhattan, I would get. I don't see anything changing. In fact, the Democratic Party in New York state is such a big tent that is now clear.

A very deep division between the radicals in the state assembly and the state senate and the relatively conservative, I use the word relatively conservative, governor on the one hand, and mayor on the other hand. People understand that there's just a lot of tension brewing in the city, and it's left against left, far left against centre left.

And you can solve that thing either way, so long as you have these huge choices. Both appointments and elections will have cosmic consequences, because there is, in effect, no agreement. You have a 51-49 vote, and it's just a huge difference in terms of the way in which the office is going to operate.

And so, I mean, basically, I think of myself as somebody who believes that. What have I dedicated myself as an intellectual, public intellectual for the last 25 years on domestic action. It's an effort to simply get this country to move away as fast and as furiously as it can from the very dangerous forms of modern progressivism.

And you could get progressivisms under both kinds of systems of selection. And so choosing between them is not going to make, what's Barry Goldwater's frame, dimes worth of difference. Now, a lot of it's going to depend on the individual draw, rather than on the system of selection.

>> Troy Senik: To that point that you just made, Richard, about the split within the Democratic Party, it's probably worth noting that John referenced the progressive prosecutor in Philadelphia.

And we just saw the night before we were recording this, the Democratic nominee for mayor in Philadelphia, which means the de facto next mayor of Philadelphia, a tough on crime Democrat. So you never know how it's gonna shake out in these jurisdictions. Okay, guys, I do want to get in one Supreme Court case.

Our next episode will probably be rotten with them as the court wraps up its term. But I am fascinated by this one. The court upheld California's Proposition 12. This was passed by the voters back in 2018, which mandated that pork sold in the state of California. So this is aimed squarely at John Yoo.

Pork sold in the state of California-

>> John Yoo: This is known as the Anti McRib Bill.

>> Troy Senik: Had to be sourced from facilities where the pigs are given a minimum of 24 square feet in which to move around. This is bigger, as you'd imagine than is the case in a lot of existing facilities.

And the real issue here is that while California consumes a lot of the nation's pork, it doesn't produce hardly any of it. Which means that the burden here is really falling primarily on out of state producers. Which brings us to our old friend, the Dormant Commerce Clause. So let's just start.

There, I know I ask you guys to do this every time this topic comes up, but it is, I think, good housekeeping on this topic. Richard, before we get to the analysis of this case, can you just explain in layman's terms for the 50th time what the dormant commerce clause is.

And then walk us through your take on its applicability here.

>> Richard Epstein: Essentially, the commerce clause has become the all purpose way to assert general federal jurisdiction. And it says Congress shall have the power to pass, to regulate commerce with foreign nations amongst the several states and with the Indian tribe.

And the word commerce under these circumstances is given a very broad meaning. And so what happened very early on is suppose you have a federal statute, it trumps the state law that's inconsistent. But suppose you have no federal statute, there is a long set of arguments that the power of Congress to regulate.

Means that if no regulation is taken on certain activities, the mere fact that the commerce clause is there preempts and therefore ousts any kind of state regulation. And this thing has been on the books as a doctrine for a very long period of time. The question is, what's the rationale for the dormant commerce court?

And the theory generally proposes that it is an anti-discrimination rule, which means that one state cannot favor its own productive activities over that of another state. And the question then is, is that the only thing that it covers? There is a 1970 case, very short, but now looms ever larger in American jurisprudence, called the pike case.

And what's issue in that particular case is that Arizona had a rule, which said that anybody who wanted to ship cantaloupes into interstate commerce had to pack them in a local facility and then send them out. It turns out that this cantaloupe gone was much closer to an identical facility that was located in California.

And what the state says, you have to go an extra 200 miles to package and ship this thing. And Justice Stewart said, generally, if you have a facially neutral law like this one was, everybody inside the state of California have to ship his cantaloupes out the other way.

You will nonetheless invoke the dormant commerce clause if you can say that the putative benefits to the state are far outweighed by the inconvenience that are imposed on these guys. So essentially, if you're trying to figure out what's happening in interstate commerce, there's absolutely no risk to anybody by using an identical facility, equally regulated in California that you have here.

And so we struck the thing down. And the question was, when you get to this particular case, how do we think about the dormant commerce clause? Don't we only think that it deals with explicit cases of discrimination, or does it deal with facially neutral rules that also distort competition?

And there's a very strange split which many conservatives say, look, as far as we're concerned, if the textual warrant isn't there, you have to construe this exceedingly narrowly. And that's the position of somebody like Justice Thomas. And then there are other people who say, no, you have to have the same vision as Justice Jackson.

This is a clause which is designed to make sure that competitive balance is going to be kept throughout the United States against all sorts of strategies and devices that can undermine it. So that's essentially the background. And then the vote, I can't remember everybody, but it was really the most incredible kind of split.

There was not a conservative liberal split. It was Justice Gorsuch wrote the majority opinion. Justice Thomas joined them. In the dissent, you had Justice Jackson, who's new on the court, Alito, and so forth. So there's no left right distinction on this particular question. I would talk about later as to what I think the issue turns out to be, but I think John should probably weigh in with his infinite wisdom.

 

>> Troy Senik: Well, yet, John, let me have you start there on this issue of the split, because if you didn't know what this case was about and you read someone, the way the ruling broke out, it would sound like you drew the names out of a hat. Because you've got a majority decision by Justice Gorsuch, joined at least in part, because there's also a lot of tricky partials here by Thomas, Sotomayor, Kagan and Barrett.

And then on the other side, you've got Chief Justice Roberts with Kavanaugh, Alito, and Jackson. Is there anything meaningful we can take away from that alignment? Is there a through line, or is this just too much of a dog's breakfast to try and find anything?

>> John Yoo: I guess I'd put it this way, yeah.

I think maybe the line that explains it is about their belief in judicial competence. And in fact, I believe Gorsuch, Thomas, and Barrett explained their vote this way. And the reason why is cuz it gets to what Richard was describing as the pike test, which asks you to balance the harm to interstate commerce versus the local benefit of something like this.

I think of it as the, again, the anti McRib bill or the piglet protection bill, I don't know, whatever you want to call it. And how do you measure that and balance it? So I think the conservative, these three most conservative justices there, I think they say there's no way to figure out what is the local benefit of feeling better about how piglets are treated in other states.

How do you actually count that up? And then what's the real harm of interstate commerce? And then how do you balance them against each other? So I think that's why you have Gorsuch, Thomas and Barrett on that side. I think you probably see Kagan on that side because she's, I think in a way, she's kind of sticking it to the conservatives here who, because she's on a bit of, I think, reasonable arguments in other cases where she's accusing conservatives of doing exactly that, of trying to be too interventionist, of trying to measure things and judge things that courts really aren't good at.

This is her effort to protect the administrative state by keeping courts out of these kinds of decisions. So I think that's why you have that weird combination. I've always thought personally that the dormant commerce clause makes no sense as a matter of the original understanding of the Constitution.

I think Richard gave a good explanation about why it makes good policy sense. I mean, it's been part of creating the unified national market in our country, which has done great good for all of us. But you don't see any clause that says courts can go around striking down local laws, that it feels our intention with the unified market.

That's Congress's job under the commerce clause. I think that explains why this majority came together as a suspicion of judicial power.

>> Richard Epstein: Well, I think it's a bit more complicated. In particular, what happens is there was a deep disagreement amongst the various Supreme Court judges about the question of how you think about balancing under the pipe test.

Justice Gorsuch took what I think is a very extreme and utterly indefensible position when he says, I don't know how to balance anything against anything else. It's the sort of notion it's incommensurability at the highest level. Well, I think that is true. Then every balancing test that exists under the First Amendment with respect to religion, with respect to speech and everything else, what do we say?

Well, we have to suppress this speech because it turns out there's a Danger that there'll be a commission of a felony. Well, how do we compare the importance of communicating with an audience on the one hand, with the need to control violence on the other hand? And what you do is you can find things, so let me give you a way in which you can do this.

On this one, Kate, there are a bunch of laws that try to say that you cannot protest an abortion clinic by picketing within 30 feet of its entrance. And what happens is you say, well, why would you pick 30 feet? And for somebody like me, the answer is pretty clear.

30 feet is close enough so you could be heard and far enough away so that you can't strike at somebody. So if you're trying to maximize the combination of access on the one hand to the words and control of the dangers on the other, this is very good.

This Supreme Court decided all these fixed rules make no sense. And they said you have to balance on an individual basis, which I regard as absolutely nutty. So I think you can balance on cases like this. In this particular case, you just actually go through the balance that Justice Stewart went through when he wrote this opinion.

What do you gain in terms of product safety if you send things to California where the identical rules are in place and where thousands upon thousands of goods are sent every year into interstate combat? It turns out the increment of safety that you get by staying inside the state of Arizona is zero.

The inconvenience to the firm here is very large. It's not a discrimination case, because even if you were a far foreign corporation doing business inside, that you could apply the same regulation to the foreign company that you do to the domestic company. And so under these circumstances, what you wanna say is this is a distortion of competition by imposing a regulation that makes everything more inefficient.

And that's the object of the dormant commerce court to make sure that competitive forces are there. Justice Barrett, she didn't quite take that line. She says, I look at this and the question that I really wanna ask is just how heavy is the burden in the poor case?

And so now, you start talking about the question, is it really a heavy burden that you're going to have to realign the pits in which you hold these things and how that goes? And it seems to me, and then what's the California issue? So when I wrote about this, and it makes no appearance anywhere in this case, I said, look, people in California may want to have strong feelings about how you make pigs.

And so what you could do is you could say any pork product that's destined for California will have on it a rule which says, this animal was not raised in conformity with the California statute. So people who don't want to buy suspects up because of moral objections have a full situation to do so, but everybody else who wants to can.

And so you really wanna say when you could split the electorate up like this, that you want the outcome of a very low turnout to dominate this thing when you have a way of protecting the legitimate cow issue in California without overkilling it because of what's gonna happen with every other kind of state.

So I think that you can do it. And I think if you did it in this case, you would find out, given the other alternative, that this is essentially a kind of a regulation that should be gotten rid of. And so I think you could both measure the particular burden and have to understand what Justice Gorsuch is saying.

And he said it many times before, so it's no surprise when he's on the lower court, is, I think if things are incommensurate, you can't measure it. Years ago, I wrote an article called incommensurability, is utility the rule of the world? Meaning, is it the dominant conception, or is it something you can measure?

And you wanna find out situations about incommensurability, you don't have to look very far. It turns out boss wants me to stay late at night to finish a project. And it also turns out that my kids need to be at home to watch the softball game. And it is incommensurate to figure out how long you stay is against the pleasure.

Under Justice Gorsuch's situation, there's nothing you can do. And what happens? Everybody kind of figures it out. You tell the boss, I'll come back, back in after the game is over and finished the project and he says, fine. And what you've done is youve managed to figure out how to argue and to deal with both of these things.

And we do this with respect to incommensurables our entire life that were always to be balanced. And then the second point is, well, I can do it with respect to my boss. You ask the following question, let's go to the state legislature. He says, Justice Gorsuch, well, theyre better equipped to do this.

What tools do they have that a smart judge doesnt have in trying to deal with this issue? The identical arguments are gonna take place in both forums. And so it seems to me to say that there's some magic legislative power to do balancing is wrong. And if you think of what we just said before, we said, well, do you wanna elect officials to be prosecutors, or do you wanna appoint them?

And it turns out you can have the same debate in any form that you want to put it at so as to assume that the legislature is a repository of special ignorance when it's also subject to intergroup politics of one kind of form, or that the courts are margic.

They're not magic either. They could be fools for judges. So it seems to me that what you wanna do is to do the best that you can. And I think in general, if you're serious about balancing, you could do far better than random. Even though by definition, as the case gets closer, you will find a situation where if you're one inch to the left, it tips to the left, one inch to the right, you tip to the right.

So that they're always gonna be closed cases where we have to grow up and understand that we were willing to live with very hard choices in very close cases. Because most cases, when you do the balance, it's a lot easier, and you don't wanna throw the baby out with the bath water.

So I am essentially upset with people who think that you do do the balancing and then thought it was actually difficult, which I did not. And then it also turns I'm even more upset with people who say courts cannot engage in balancing. Whenever there's uncertainty, whenever there's trade offs, you're always balancing something against something else.

And the job is not to deny its philosophical possibility, your job is to solve it empirically.

>> Troy Senik: This is the thing I wanted to ask you guys for a long time, actually, this will be the last question on this topic. John, there is so much bad reporting and commentary on the Supreme Court that sort of starts from the supposition the justices are all just kinda partisan robots.

That sort of thinking is risible when you look at a case like this. But I'm curious, intellectually speaking, is Justice Gorsuch the quirkiest Justice?

>> John Yoo: Gorsuch, no, I don't think so. Quirky, really? Do people think he's quirky? I don't know, I don't find him quirky at all. I mean, one thing about this case that's a good sign is that I think for 90% of the cases at the court, these kind of partisan descriptions of them just simply don't work.

This case is a good example, and this is one of the most important doctrines the Supreme Court has enforced. If you were one of these external observers who think partisanship guides, you should have thought the conservatives would have smacked California's effort to govern the national pork industry down, especially since it was in favor of some kind of Gugu environmental ideals, but didn't work out that way.

And I think actually 90% of the cases are like that. It's just the 10% of the cases, which are really controversial, that really call on judicial ideological differences, where you see any ability to claims. It turns out quirky, though, I don't know. I mean, my boss, Justice Thomas, likes to drive around the country in RV, that seems pretty quirky to me.

 

>> Troy Senik: Well I think, Intellectually Gorky? Intellectually quirky, unpredictability?

>> Richard Epstein: Yes, look, I will answer slightly differently. Justice Gorsuch is the one person on the United States Supreme Court, who had advanced systematic philosophical training, he studied with John Finnis at Oxford, who was a great,

>> Troy Senik: I should have disqualified him for the job right away.

 

>> Richard Epstein: Well, I mean, that's the joke that you're making, but there's a more serious point about this. Which is, to what extent do you believe in a system of philosophy, that stresses surprising results? Or to what extent do you believe that philosophy is designed to explain why our ordinary impressions about everything, are more or less correct on the grounds that somehow or other, we make it through the world?

And take Bostock is another case of this sort and this has to do with the question of whether or not the 1964 Civil Rights act covered discrimination based on sex. To include situations having to do with transsexual arrangements and homosexual arrangements. And if you ask, asked anybody at the time whether or not this thing applied, they all would have said no, if they could have even understood what the question was.

And so what Justice Gorsuch does is he has a view of language, that the terms involved there are objective. So that if everybody in the world thinks that a term means x y, and z, and you can now establish by deduction that it means minus x, minus y and minus z, then that doesn't.

And that's what he did with respect to Bostock and so after that, he has been cited time after time by people who said, well you may have thought that carbon dioxide was not a pollutant back in 1970. When we passed Nieper and the other statute but now, if we do the same kind of analysis, of course it is.

And when it comes to balancing, everybody does this all the time in their life. And the reason why the Gorsuch opinion is different from the other opinion. Is that the dominant conclusion that it was, it's philosophically impossible to do something which everybody does every day. And so that's where I think the quirkiness starts to come in, with this kind of,

 

>> John Yoo: Let me rephrase that, I misunderstood, first of all, let me just defend.

>> Richard Epstein: Okay you may continue.

>> John Yoo: I don't think he's saying, no I'm just gonna say I don't think that he's making the claim, that no balancing should ever be done in life or by policymakers.

The claim is that judges shouldn't do it. There is the executive branch and Congress, they have to balance things all the time of course, they make trade offs about every time they make a decision. So now that I understand what you guys mean by quirky, I would say the person who is quirky in the sense of unpredictable and without principle is Chief Justice Roberts.

Because all of his decisions on major cases are explainable by, political acrobatics in order to try to be in the middle of the court and try to keep its profile lower or not upset people. But that doesn't really have any constitutional principle behind it, so I actually nominate him, as most quirky justice, if you mean outcomes.

 

>> Richard Epstein: No, I disagree with that, I think in many cases I think he's wrong, which is not the same thing as being quirky. So for example, when he went through some of these cases having to do reimbursements with respect to Medicare and Medicaid. It was a very strange kind of performance, because he wanted desperately to make sure that a lot of these statutes would survive.

And so I think for that you're correct, but his dissent in this position opinion was I thought, much more commonsensical and so forth remember, he also dissented with Gorsuch, right? That's what makes it so difficult in the oil states case, in which they were both very sensible and the person who was completely quirky was Justice Thomas.

Because what he did is he essentially took the old definition of what counts as a public right, which had originated in cases in the 1850s, to deal with customs disputes. And then he said, any kind of situations where you have a statute which confers a right, what happens is the public right.

And so Congress can condition the grant of the statute by denying you an Article III court. And I regard that position, which he just recently reiterated in another one of these cases, absolutely madness and I thought that Justice Corsica was wrong. If you see real abuses, you don't want to say the problem that we have with this abuse, is that Congress did not make its intention clear.

So therefore, we assume that the access to a judicial form will be protected. Because the next time around Congress, which knows exactly what it wants to do, can simply say we're gonna deny you the forum. And so I regard a lot of the structural arguments that come out as being misguided.

Because these are pliantly due process violations in which biased prosecutors get together with biased commissioners to decide their own cases. And they won't pull the trigger on that particular kind of issue, so, I think it's a kind of a quirky danger. To put all your weight on the separation of powers issue, when in many cases, it turns out individual rights is a better way of going after these kinds of questions.

So, I think what we're about to see, unless these cases get straightened down. Is a very twisted body of law, dealing with the interaction between the appointments power on the one hand, the due process issues, on the other hand. The legal questions of separation of powers issued, the right to jury trial and so forth, because I don't think they really are going back to first principles.

But the point that I'm just making about Gorsuch, is he sends to think that articles of deep philosophical skepticism. Which means that nobody knows what they're saying or they're doing, get too much weight. I've always regarded the greatest philosophers, as those people could explain why common practices make sense, not why those who tried to make sure that they're all incoherent.

And so that legal skepticism that you see associated with causation and possession and so forth, which has brought down so much sensibility in the law. That's the thing that I'm worried about, with his kind of philosophical work. But in other cases again, it's erratic, because sometimes he's maybe the only judge who's actually on the money, cuz he's an extremely formidable intellect.

 

>> Troy Senik: We're running out of time, the last thing that I wanna ask you guys about today, I love this story so much. This is like a lifetime achievement award in urban MIS governance, the city of Baltimore is the latest city to join a suit, Seattle is part of this, so is St. Louis, so is Cleveland, a bunch of other cities.

A suit against Hyundai and Kia, claiming that their vehicles are too easy to steal and that that's increasing rates of auto theft and thus qualifies as a public nuisance. Probably worth noting too, as if this story needed to be any more bananas. That the spike in car theft around these brands, has its roots in a series of TikTok videos, that show how easy they are to hotwire.

So, Richard, this seems like an Epstein special, is there any plausible case, that the lack of anti theft safeguards in a car, could rise to the level of a nuisance?

>> Richard Epstein: This is part of an industry to take the public nuisance concept and to push it to cover anything that you wanted to cover.

The original concept, which was developed in complete thoroughness back as far as 1536 and so forth, was you committed a public nuisance when you blocked the public road. You committed a public nuisance when you polluted a public water. And so the standard test of what was a private nuisance became the test of what was a public nuisance, if it turned out that the property interests that were affected.

In fact, were those that were publicly owned, in this particular case, why would you want to say, it's these companies? The city of Baltimore has control and they can say, if you wish to sell cars in this particular city, you have to equip them with a certain kind of lock that will prevent them from being a, Theft.

And the lock that you're talking about could be sold separately from the car itself or can be built into the car or added in by a dealer. They didn't want to do all of this stuff. So instead of saying that this is a public nuisance caused by those companies, you can say that their individual drivers have been negligent in their failure to do it and then treat it as an individual rhyme.

What they're trying to do in all of these cases, these cases, in the opioid cases, is to take actions of individual dereliction and find a way to cover the social cost to cover up for their own kind of incompetence. This is very similar to the actions that are brought by saying all the oil companies are responsible for all the pollution in the United States, because they sold oils to people who drove cars.

And you really want to tell us that the guy who drives a car does not realize that there's gas coming out of the trunk or out of the emissions pipe or something or other? Those are not public nuisance cases. It turns out the public nuisance cases is against the emitter and what happened is the American electorate case over a dozen years ago.

I said, you can't bring those because of the federal preemption situation. So all of this stuff is an effort to get out of direct regulatory rules. And if you look at the case of the cars, there's nothing about NHTSA, the National Highway Traffic and Safety Commission, which says, Bob, you have to put these things on your cars.

And so I would think that the field has been occupied by other government regulation and that, I just wish that people would stop trying to abuse these things because it's nice for us to have cheap jokes about this. But if you are somebody at a major corporation who has to defend yourself against these kinds of activities, remember, since these are common mode failures, you could be responsible for thousands upon thousands of dollars of damages.

And what you thought was a small regulatory issue, now becomes a you bet your life issue, because in all of these cases, any fine, if it's gonna be imposed, be $20. And then when you start to do this thing, all of a sudden the cost is $200,000.

>> Troy Senik: And John, I mean, presumably none of this affects you because when you drive, you just have your valet stay with the car.

 

>> John Yoo: I love Hyundais and Kias, but they're not fast enough for me.

>> Richard Epstein: Why those two brands and none others is what I don't understand. I mean, look, there is a theory.

>> Troy Senik: The allegation is that they're uniquely derelict on this. And this is being catalyzed by those technologies.

 

>> Richard Epstein: And this is what percentage of the market do they operate?

>> John Yoo: Well, this is the interesting thing. I looked at this a little bit, and I thought, I read that Hyundais and Kias are not even one of the top five cars stolen in Baltimore. They're not even stolen all that much in Baltimore.

That's the other weird thing about it is, I think they're maybe they're picking on Hyundai and Kia because they also have no production or major sales offices in Maryland, perhaps, or any of these other states. Right, these are I think, Hyundai and Kia, like Toyota and, and Honda are have a lot of us production based in non union states.

 

>> Troy Senik: Usually in the south.

>> John Yoo: Union states in the south and so this, I think that's a lot of what's going on here, too, is that this is progressive blue states going after producers that have factories in, right, non union states. But I think, I mean, isn't that what's really going on here?

This is just sort of extorting disfavored companies from disfavored states for money. And to cover up, as Richard said, in this way, it's kind of like the penny and Neely case, to cover up for the failures in these cities Baltimore, obviously, in these cities to maintain law and order, right?

So instead, it's just like blaming good Samaritans on the subway line for your own failures to maintain law on the subway. And this is another city where you had yet another progressive prosecutor who, they're blaming car companies because of their failure to maintain law and order on the city streets of Baltimore.

 

>> Richard Epstein: Baltimore has lost maybe 30% or more of its population since 1950. It was one of the more prosperous cities in the United States before the progressive took over. And the irony is there is now something worse than segregation. It turns out to be progressive government because they wreck everybody.

And this is exactly the effort to turn the attention from themselves and their many failures associated with law enforcement. And it's a public disgrace that they should do that. Some cities, like Pittsburgh, have gotten their act together. Others, like Detroit, are trying to improve their situation. But I think that Baltimore remains sort of right at the bottom of this kind of a list.

It should be in receivership of some sort. So incompetent is its representation. So I think what John says, it's a diversion tactic, is probably all too correct. And it's the kind thing that just brings tears to your eyes because you're diverting resources that could be used to stop real crime in order to engage in one of these showboating operations.

 

>> Troy Senik: All right, fellas, that's all the time that we have for today. My thanks to you both, as always, to our producer, Scott Emmergutt, and to all of our wonderful listeners. Remember to do us a favor and rank the show wherever you get your podcast. We'll be back with you soon.

Until then, the faculty lounge is officially closed.

>> Speaker 4: This podcast is a production of the Hoover Institution, where we advance ideas that define a free society and improve the human condition. For more information about our work or to listen to more of our podcasts or watch our videos, please visit hoover.org.

 

>> Troy Senik: University of Chicago and John Yoo. Three, two,

>> Richard Epstein: Start over, start over.

>> Troy Senik: You don't mean to start from the very top, do you?