Richard Epstein is in his element as he discusses new Supreme Court rulings on access to abortion pills, modifications to semiautomatic weapons, and the ability of workers to organize unions.


Tom Church: [00:00:00] This is the Libertarian Podcast from the Hoover Institution. I'm your host, Tom Church, and I'm joined, as always, by the Libertarian, Professor Richard Epstein. Richard is the Peter and Kirsten Bedford Senior Fellow here at the Hoover Institution. He's the Lawrence A. Tisch Professor of Law at NYU, and he's a Senior Lecturer at the University of Chicago.

Howdy Richard, it's time for another Supreme Court roundup. Are you ready to go? There's always surprises with the Supreme Court, but I'll give it my best shot. I'm sure you will. I think let's start first with the FDA versus the Alliance for Hippocratic Medicine. So this is the abortion pill case. So the Supreme Court ruled unanimously, by the way, unanimously, that Mifepristine could continue being sold as is.

So I've I think I have two questions for you here, Richard. Am I right in [00:01:00] assuming that this isn't going to be the end of the issue, because the ruling, the unanimous ruling, was on the legal standing of the doctors who sued, rather than an underlying constitutional issue? Because I know that a couple other states have brought their own Claims with different arguments for standing.

Richard Epstein: The answer

Is an issue like this is never finished. Whatever it is that you think you've done, there's another branch of government, another state, another Congress, another statute that somebody could introduce. Technically, the doctrine of standing says you have to show some kind of a discrete interest in order to be able to attack a particular statute because it impairs the way in which you.

Eat your life. And the doctors who brought this stuff were essentially guys who were not impacted by the ban or by the use of the drug in any way, shape or form. There was no mandate that they use it, at which point they would have had standing to block that. What it was that other people wanted to use it and they didn't like it.

And even under my views, which are very pro allowing standing to be done, I don't see this as a [00:02:00] real case. The issue I think is one that's going to have to be decided politically at this particular point. And if the Congress wants to ban it, then those people who are not able to use it will surely have standing.

But otherwise, I think what's going to happen is that this particular decision will stand. I think the most important thing about this decision is the fact that A, it was unanimous and B, that since the availability of the drug is there, the specter that Dobbs is going to transform the landscape is no longer a Dominant issue and Alito is no longer an obvious villain.

And so I think in the way in which this thing will play out politically, it's going to be a modest assist to the Republicans. People are going to still say that, Oh, they're just terrible people. But if it turns out every one of the conservative Republican judges plays the same game on standing. As all the liberal Democrats, it takes a lot of the wind out of that particular sale.

And I think the decision was actually correct. Whether or not you should or should not use various kinds of drugs, I think is a very different kind [00:03:00] of question. I've always been on the pro life side of that issue. But at this particular time, pro life means that nobody could force you to do something that You don't want to do, and this you certainly have standing for.

Somebody says you're working a particular hospital. And now we need to have somebody a form of abortion on a woman who doesn't have any medical distress. And she has a healthy child. A doctor says, no. And they said we're going to fire you. Standing is perfectly easy. And I think the live and let live strategy in this particular case is the correct one.

Women may be able to use the pill at the advice of their own physician, but hospitals. And the government cannot force individual physicians against their conscience to either prescribe the pill or engage in any kind of abortion type relationship. That's the long term stability solution in the United States.

I think the day has gone where you're going to ever have a movement for comprehensive ban of abortions on a voluntary basis by individual women. If you're religious and you care about this. It's going to turn into [00:04:00] advocacy, advice, clinics to help people avoid abortions and take care of children and all the rest of that stuff.

But I think the ban is gone for good to the extent that I understand the issue. There'll be more skirmishing about it, but I don't think that this particular outcome will play. So in a sense, these issues are never done because of the agitation, but I think this case is a major turning point and it's one that works for the advantage of the Republic.

Tom Church: Let me follow up on a related issue that hasn't come before the Supreme Court yet, but I imagine we may be getting there soon. And that's the question of IVF treatment. Democrats in the Senate tried to pass a bill codifying access to fertility treatments in vitro. A little controversial on the pro life side, because in this process, some of the retrieved eggs or the rest of it could be disposed or the embryos could be disposed.

And so People who are on the, right to life side see that as inappropriate disposal of embryos and life. And so right now, if that were to pass that's one thing. We could say if that's [00:05:00] constitutional or not. I suppose the question is That would be a huge battle.

That'd be a huge battle. What side of the battle? Would the battle be more, you aren't allowed to have these treatments or that you are, we're codifying access and we're guaranteeing access to them? Look, the battle

Richard Epstein: would be any effort to ban in vitro fertilization. A practice done by hundreds of thousands of people, often desperate for children.

They necessarily recreate redundant eggs because there's a high level of failure in these operations. And so what you do is you try and save them. And if the first one doesn't work, you have to clean out the system and do it again. If it does work there are two choices. You could have three choices.

You could give that particular a fertilized embryo to another person to implant it in her womb. You could just let it sit there and disintegrate by natural forces, or you could actively remove it from the system by destroying it. But understand the way that this thing works, the real kind of issues that some people are worried [00:06:00] about is suppose some stranger comes along and goes into the laboratory and destroys those particular fertilized eggs.

Now, one thing you could do is you could say that it's just a property damage like any other form of property. But the distinctive nature, I think, of a fertilized egg is pretty clear. And the saying that you couldn't destroy it would make perfectly good sense against a stranger who's trying to prevent this from happening.

But if you're a woman desperate for pregnancy, and the only way to succeed is to have multiple eggs and to dispose of those which are no longer needed, if somebody else doesn't want it, this is essentially an affirmation of life, not an affirmation of death. And as far as I'm concerned, any effort to ban this would be the most dangerous thing that could be possibly happening to a situation.

The American population is getting older. Women's fertility declines rapidly with age. There needs to be all sorts of kinds of surrogate arrangements and to interfere with this is I think, going to be disrupting thousands upon thousands of families. There are many gay couples who have to [00:07:00] rely on this sort of stuff.

It turns out that there is a modest crisis in this particular injury right now. It's generally not too difficult to get women to devote eggs. You have to pay a price and a respectable one, but getting carriers seems to be an extremely difficult thing. And that's where the blockage is in terms of the way in which the cycle is starting to work.

And you can start raising prices to induce more women to come into the market. But the fatal thing on the other side is you get more women who are willing to carry, but you have fewer people who with the wherewithal. Who can pay the stiff C's that are going to around right now, I think it's probably the case that to go from the beginning of the process to the end of the process, you're talking about a substantial six figure investment to create in vitro fertilization, because you have to do all sorts of pre selection.

You have to find out who is going to be suitable for being an egg donor. Then you have to test her. Then what you're going to have to do is to figure out what woman can carry it. You have to You don't want women who are too young. You don't want women who are [00:08:00] too old. You want to make sure that they've had no alcohol or other complications.

These are all nightmarishly difficult proceedings. And the idea that you would want to make what is already extremely difficult, even harder strikes me as almost cruel in terms of its simplification. And this is a case in which I think the destructions of embryos. Is fully justified given the fact that it's the only way that you could create human beings.

So I certainly hope that it doesn't come to that. I believe Alabama, when it passed that particular statute, a quick, or rather that judicial decision on the destruction of eggs by somebody else passed the statute protecting the IVF process. And my view is that's the correct way in which to do it.

Strangers cannot destroy your eggs, but if it turns out you create them, have life with something else, and it turns out the choice is either. Letting them slowly die or basically removing them for their fridge. I think either choice at this point has to be regarded as permissible. So I regard this as a tragic alteration on this particular [00:09:00] question.

I think the medicine stuff that we've talked about voluntarily prescribed is here to stay. But we now talking about opposite side, people who want to end pregnancies now have the access to do but people who want to create pregnancies will be blocked If in fact, every MBO has to be implanted in order for you to meet the law.

Tom Church: All right, let's turn to a very different issue. I think next up Garland versus Cargill. This is the so called bump stock gun case. The Supreme Court ruled that the ban on bump stocks, which are these bumps, their accessories that allow. semiotic rifles to file faster, to fire more quickly. The accusation is basically you're turning a semi automatic gun into an automatic gun into a machine gun.

Anyway, they ruled that it is not constitutional this ban the federal ban. So no, I don't think it's, I think they ruled that it

Richard Epstein: wasn't within the scope of the statute that was in the book.

Tom Church: Yeah. So let's get to the specifics here and some quick context, because I think this is interesting.

This ban went into place at the federal level after the 2017 lawsuit. [00:10:00] Vegas shooting by then President Trump. That was when it was put into place. Yeah. And the six conservative justices are the ones who struck this down. That's right. So is this as simple as the law says, here's what, it's a machine gun.

You're not allowed to do that. And this accessory doesn't turn it in, doesn't meet these qualifications. End of story.

Richard Epstein: That's the way in which the case was eventually decided and that is basically moving towards the modern view of limiting discretion and imaginative interpretations in dealing with regulations pursuant to statute.

The case was won by my former student and good friend, Jonathan Mitchell. And what he did is he tried to persuade them that this is a case in which you stick to the stick straight and narrow. And so the way in which he argued the case is don't tell me about the similarity with respect to potential outcome.

You have a definition of what counts as a machine gun and you have a definition of what is a bump stop. And it turns out that they are different mechanisms. One of them says a single trigger movement can Fire a burst, and the other one simply [00:11:00] makes more rapid tricket movements. And I gathered Chief rather Justice Thomas when he did this do diagrams showing the two things.

So if you take the plane meeting approach to language, it is always open for Congress to say that this case is sufficiently similar to the one that we've had. And so what we're going to do is to expand the. And so it now covers bump stock and is not the slightest doubt in my mind that a statute like that would be fully constitutional under current law.

The constitutional question, however, is a little bit trickier because those people, for example, who are not fans. Of a little interpretation will be using some version of the Chevron doctrine, which is now more likely to fall into this repair saying here's a basic proposition that we have. And that to the extent that you have two devices, which have different mechanisms, but common purposes, if the common purpose is to prevent the death of individuals by rapid firing weapons you could ban the one by way of analogy to the other.

on the grounds that there [00:12:00] is a need for this kind of an anti circumvention rule. And that's been a very popular mode of interpretation to allow you to cover something which isn't something else but close enough to it for government work that you can put the ban on. But at this particular point, one of the criticisms about the Chevron doctrine is that by its massive system of delegation, it allows an agency to do something which probably ought to be done by the Congress.

And that is in fact what they held in this particular case, six to three. I was actually predicting that it might luckily come out the other way around. So what's going on at this particular point is you now have an anticipation of what's going to happen in the Loper Bright case, which is going to come down shortly, is they're not going to allow People to say a is functionally equivalent to be.

Therefore, a can be regulated by be even if the actual text of the statute goes the other way. And as before, Congress can always fix this thing. I gather there's some people who criticize this decision as being against the intention of [00:13:00] Congress. That's a very tricky argument to make either way. Because if you believe that Congress believed in the Chevron doctrine, you can say if they pass something, literally, we want them.

them to use Chevron to interpret it more figuratively and give you a broader case. Or you can say, Nope, what we really want to do is to force you to have clarity at the outset. You didn't do it. You can do this. You can figure out how to write a bump stock statute and put it into place. And that's the position that they're playing now.

And what this is designed to do is to shift the locus of power back from administrative agencies or from executive department officials. back to the Congress where the general authority to pass laws is put into place. So I think in effect that this is a very strong indication that the old system of discretion dating back to 1984 with the Chevron case, if not even earlier than that time is now going to be trimmed in a very fundamental way.

Tom Church: So speaking and going back to Congress Congresswoman Pramila Jayapal tweeted after this decision, and I'll [00:14:00] read it. This is a horrible decision that will undoubtedly result in more gun deaths. The bomb stock ban had bipartisan support following the deadliest mass shooting in U. S. history. This ruling is another example of SCOTUS legislating from the bench against the will of the people.

Richard, she's got it backwards. Tell

Richard Epstein: me. What happens is What the Congress they had unanimous support, but they didn't pass the statute, right? She has said they have support for a regulation that's put into place. She's right about the power of Congress. And if she has bipartisan support now, as she had it then for that particular position, then you could pass an amendment to the statute, which And if you ask me which way I would vote on that, I would want to look along and hard.

But my view would be generally presumptively going in that if the ban on machine guns makes sense as close substitute should be banned as well. So I don't think there's anything about the Supreme Court that's illegitimate. And one of the things that I've come [00:15:00] to really distaste for the. Particularly the Democrats in Congress is every time they don't like a decision, they say that the Supreme Court is legislating from the bench and use that as an excuse in order to try to put greater restrictions on the way in which they run their business, including the utterly misguided and dangerous operations by people like Sheldon Whitehouse, on the one hand, and Dick Durbin to say, come and talk to us because we want to tell you what your particular role is.

Not the way in which things ought to be done. They can solve this problem very quickly by passing the statute. And I don't think there's anybody on the court on either side of that situation, which come back and say there's a second amendment. And so therefore the ban on the bump stock would be unconstitutional.

I would think they would come back and they say, The right to keep and bear arms refers to side arms. It doesn't refer to how it's as a machine guns of this sort. And so therefore you're not even running afoul of the constitutional type of limitation. These criticisms strike me as being angry, partisan and political.

If [00:16:00] she really believes what she said, They should introduce a statute tomorrow into the Congress, which in one paragraph says bump stock shall be treated as if they were machine gun. And at that point, you can't draw the mechanisms to distinguish the two cases.

Tom Church: There you go. There's also 18 states that already banned these, so we'll see what the federal government can do.

Last one I want to bring up with you, Richard Starbucks versus McKinney, decided 8 1. I think this has to do with what you're allowed to do when organizing a union. Seven, seven Starbucks workers were trying to organize a union. They let a TV reporter or station into Starbucks after hours.

Starbucks fired them, and then the fired employees went to the NLRB. This is seen as a loss for the NLRB. 8 to 1 suggests maybe this is a clearer case. Can you help me think through what this means in terms of union activis or activism? It's actually, the 1 was a concurrence dissenting in part.

I was gonna say, cause some said unanimous, but really it was, Yeah.

Richard Epstein: But look, let's go back to the [00:17:00] situation with respect to the national labor relations board. It turns out that the thing that everybody was worried about in 1935 was you are now an organizer with respect to a particular firm.

And it turns out that you get a majority of the workers to vote with you. And then the management says you are on a contracted will. So we are here by firing you. And if in fact, the firing is something that can go through what happens is nobody will ever organize a union again. And that was in fact, the position that took place under the previous law, under the so called yellow door contract, where the dominant rule was, you Tell workers, if you come to work for this particular firm, you will agree that you will not go out on strike secretly or become a union member secretly.

So long as you're an employee, you have to independently quit and then you could join a union, but that's not a particularly potent threat. And that is a position that I agree with. been defending now for 40 years because what it does is a powerful constraint on union power and in effect [00:18:00] allows a company to develop cooperative workers practices with cooperative workers, which are much more efficient than the union.

So the one side is given the union law, you cannot have dismissal at will. But the other side is you can't allow these people to get tenure. And so in this particular case, it was the classic kind of conflict. These people are union organizers, but they also violate the general rules within the organization about letting people in with cameras without the provision of management.

All of these provisions are generally thought to be permissible. And so what this then happens is in labor law, you get all these dual motive cases. You've got the government, which has one set of motives saying that the union was really doing the right thing. And the company was corrupt. Then the company comes back and say, look, we weren't caring about there being union members.

They're just prohibitions. letting people in on the premise with cameras after work, they violated them. So the issue is, which of these two things dominates and there are efforts to try to create the dominant motive of the primary test. And you could see just [00:19:00] how difficult it is. What the board did in this particular case is it took a very strong view that the union had the right, then the other guy was wrong.

And then immediately went to court. In order to get an injunction against the practice. Now, it turns out injunctions are complicated. And the most famous case about this is an environmental case involving the question of whether or not the government could be enjoined from operating its ships, which create various kinds of vibrations and emissions.

Under circumstances where they may destroy fish in some kind of a sensitive habitat and they developed a four part balancing test and saying, what's the nature of the governed interest? What's the nature of the interest on the other side? What's the nature of the public interest? What's the nature of the ability of enforcement?

And what Justice Thomas says is winter supplies in this particular case. And what you try to do is to circumvent the procedures. Mhm. So the implication in this particular case, and I'm very much in favor of it. This is not an opinion, which is designed to say you'd want to [00:20:00] get rid of unions and allow foreigners to ban them.

That has always been my position. I make no bones about it. I argued it in 1983, but what it does say is we've got a set of rules. The set of rules are designed to create a balance between what the union can do and what the employer can do. And that's what we're going to These rules are constantly tweaked and refined, and you, the current Biden board, cannot simply decide to go outside those particular rules and in excess of your statutory authority, push very hard on this particular case.

And so what this case is really about is not any grand question about unionization. It's the question of how much permissibility is there under these circumstances. To engage in the kind of activity which cannot be protected by a union, by the management, by the NLRB, unless they first satisfy all the conditions for an injunction.

And that's the correct decision to make. Remember, Biden says I'm the most pro union president, right? In the history of the world. Pro union does not mean illegal. [00:21:00] And that's what they're doing. So even this court, I think, has now understands that the Biden people are so aggressive, That even the liberal justices, as they've done in other cases, are aware of the fact that they're trying to push the envelope too far.

And if you're trying to push it too far, you get slapped down. And what we're going to do is, if there's a Biden re election, is this tension will emerge in countless other areas. The most notable one probably being union elections, where well conducted, the unions tend to lose. And in those cases where they win the elections, as they did in one of the Tennessee plans, are they going to be challenged?

But if you note when they had the recent union elections, Mercedes Benz and so forth, the unions lost cleanly. It's very hard to persuade workers to join a union voluntarily if you know that joining the union is going to put your plant into a precipitous decline and lead to a reduction in jobs or a closure of its

Tom Church: operations.

You've been [00:22:00] listening to the Libertarian Podcast with Richard Epstein. As always, you can learn more if you go over to Richard's column, The Libertarian, which we publish on definingideasathoover. org. If you found this conversation thought provoking, please share it with your friends or others so they can find it and rate the show on Apple Podcasts or wherever you're tuning in.

For Richard Epstein, I'm Tom Church. We'll talk to you next time.

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