Matters of Policy & Politics: The Supreme Court: Student Loan Debt and “Hiding Elephants in Mouseholes” | Bill Whalen and Michael McConnell | Hoover Institution

>> Bill Whalen: It's Wednesday, February 15, 2023. And welcome back to Matters of Policy and Politics, a Hoover Institution podcast devoted to governance and balance of power here in America and around the globe. I'm Bill Whalen. I'm the Hoover Institution's Virginia Hobbs Carpenter Distinguished Policy Fellow in Journalism. Well, I'm the only fellow with that job description.

I'm not the only fellow who's doing podcasts these days. And I encourage you to go to our website, hoover.org, and check yourself. Click on the tab at the top of the homepage. It says commentary. Go over to where it says multimedia. The podcasts will pop up. You can subscribe to any or all of them if you want.

You can also sign up for our pod blast, which delivers the best for our podcast to you each and every month. My guest today is Michael McConnell. Michael McConnell is a Hoover Institution senior fellow, as well as the Richard and Francis Mallory professor of law and the director of the Constitutional Law center at Stanford Law School.

He's also served as a circuit judge on the US Court of Appeals for the 10th Circuit. He joins us today to talk about the Supreme Court, including one case in which he is now involved. Michael, thanks for coming on the podcast.

>> Michael McConnell: Thanks for having me, Bill.

>> Bill Whalen: So earlier this month, you and a group of academics and former government officials filed an amicus brief in two cases currently before the Supreme Court having to do with the forgiveness of student loan debt.

I would note that Hoover senior fellows John Cogan and John Taylor also lent their names to this. Taylor is the former treasury secretary under secretary. Cogan is a former deputy director of OMB. At issue was a decision by President Biden back in August of last year to forgive about $400 billion in debt owed by some 43 million borrowers who financed a college education with the benefit of taxpayer funded loans.

The Biden administration based its action on the Higher Education Relief Opportunities for Students Act of 2003, better known as the HEROES Act, which allows the federal government to change student loan programs in response to national emergencies. The Biden plan, which applies to federally administered loans, as I mentioned, calls for $10,000 in relief per borrower, subject to income caps of $125,000 per individual, $250,000 per household.

Recipients of Pell grants could be forgiven an additional $10,000. So up to $20,000 in debt forgiveness is possible. Michael, there are two cases here. One is called Biden versus State of Nebraska. The other one is US Department of Education versus Brown. Would you like to briefly describe those, or shall I?

 

>> Michael McConnell: Go ahead.

>> Bill Whalen: Okay, Biden versus State of Nebraska. Very briefly, this is the question of whether the president's plan violates separation of powers and the Administrative Procedure Act. US Department of Education versus Brown. Brown in this case refers to Myra Brown, a lady who racked up some $17,000 in debt from attending University of Texas, El Paso, and Southern Methodist University.

That debt is commercially held, so it doesn't qualify under the president's plan. At issue here is a question of procedural rights being deprived because the president's plan didn't include a window for public comment. Michael, that was kinda quick. But I get the essence of the two cases, right?

 

>> Michael McConnell: That's right. So in both of the cases, there are really two sets of questions. One is the merits is what the president did, and forgiving this student loan debt authorized by law and constitutional. But the second and prior question is whether anybody has a right to sue about it.

And that's a hard question.

>> Bill Whalen: Right, let's go through your amicus brief here, and there are three arguments, and I will read verbatim from what is in the brief. Point number one, the framers design the power of the purse as a check on tyranny.

>> Michael McConnell: Much of the architecture of the constitution was designed from the backdrop of a longstanding, centuries old struggle in Britain between various kings, a lot of them stewards.

Who wanted to become absolute monarchs along the lines of their friends across the English Channel, and against some combination of parliament and the common law judges. And at the beginning, the king hold most of the cards in this dispute, going back to Magna Carta, though, parliament controlled one very important power, and that was the power to tax.

And it's necessary. Although the king had many other sources of revenue from crown lands and other things, as the years went by, it became increasingly necessary for the king to get more revenue, just like our government, right? And parliament was able to use its ability to say no to taxes in order to extract more authority across the board.

And in the 18th century, just before our constitution, one of the things that had happened is that parliament got control not only of tax, but also as spending, so that when they gave the king money through taxation, they could dictate to him how it would be spent. And by the time of the constitution, the king could no longer spend without specific authorization from parliament in the form of a budget.

Well, when our framers were designing the constitution, they wanted to make sure that we didn't make again, any of the mistakes of the past. And so they understood how important money is. And spending is not just to the economy, but also to democracy itself, that if the executive branch can simply decide what to spend on and doesn't, and that the executive branch doesn't have to go to Congress for authorization, then the president can do pretty much whatever he wants.

And they inserted two provisions in the Constitution to ensure that Congress, not the president, would have the power of the purse. One is the very first clause of the portion of the Constitution that gives Congress powers. This is article one, section eight. And so the clause one gives Congress, not the president, the power to tax and to provide for, meaning, make expenditures for the common defense and general welfare so that it is Congress that gets to decide how to spend money, just as Parliament had gained that power across the pond.

But that wasn't enough. So important was this, that they added a second clause in article one, section nine, stating that no appropriations may be drawn from the treasury except pursuant to law, meaning an act of Congress. So not only did they affirmatively give Congress the power, they affirmatively provided that no one else would be, namely, the president, would not be able to spend money without authorization from Congress.

So that is actually the only provision of the Constitution where there's a double protection. And I think that's a sign of just how important this is, because a president with unlimited spending power is essentially a president with unlimited power.

>> Bill Whalen: All right, the second point of the amicus brief, executive encroachment on the power of the purse threatens constitutional order.

 

>> Michael McConnell: Unfortunately, and especially in the last three or four presidencies, presidents have gotten felt stymied when they go to Congress and ask for an appropriation for some operation that they think is really important and Congress doesn't. Congress doesn't spend the money, doesn't authorize the money. And unfortunately, of late, it has become somewhat common for presidents of both parties just to spend the money anyway.

So in the amicus brief, we give examples from George W. Bush, which at the height of the economic collapse, he went to Congress to, asked for bailout money for the automobile companies, just along with the banks. And Congress said, no, they did pass. Or you may remember, TARP, the TARP legislation, which provided subsidies for banks that were collapsing at the time.

Well, what did President Bush do? He said, well, let's just define automobile companies as financial institutions. And if they are financial institutions, then we can support them, too. So Congress has said, no, you can not bail out the automobile companies. And President Bush did it anyway. And there was a similar incident under President Obama, when the Obamacare legislation looked like it was going to place a lot of obligations on health insurance companies, and he wanted their political support for the program, and he asked Congress to provide a subsidy, what basically hold them harmless for certain losses that might take place.

And Congress said no. And again, using stretching language in the statute, really beyond its breaking point, President Obama did it anyway. The House of Representatives took him to court, and the court held that indeed, Obama did not have this authority and that it was unconstitutional for him to spend it without congressional authority.

Unfortunately, by that time, $7 billion had already left the treasury, never to return. President Trump was no more scrupulous about staying within his lane. Most people remember all the back and forth about the wall. The example we use on the amicus brief is where President Trump wanted to be able to use money to provide additional unemployment compensation.

And Congress was at loggerheads. One party wanted to give $200 a month, and the other wanted to give $600 a month, and so they ended up not passing a bill, and so Trump just spent it anyway. He decided on $400 a month. Let's just split the difference. But it's the same general principle.

But now President Biden's student loan forgiveness program is by far the largest ever. The magnitude of this expenditure, it staggers the imagination. The CBO has estimated that it will add over $450 billion to the deficit this year. When we're contemplating how long it's going to be before we hit the debt limit, several months of that is this very act, just to put it in proportion.

So 450 some odd billion for this. The entire budget for K through twelve education is $128 billion. And that goes through committees. It's debated. Congress passes it each year. It's the size of that as they bicker over it. This was just done through the stroke of a pen.

We'll talk in a moment about the legal excuse given for this. But what's really fundamental about it is that presidents have a certain leeway in interpreting statutes passed by Congress. And I think there used to be a little bit more of a sense of responsibility among lawyers in the executive branch that they had a duty.

They don't work for the president. Their duty is to the american people to make sure that the laws are being interpreted properly. And I think part of the partisanship of recent years has been that that has been in decline. And so instead of asking, what did Congress really intend to fund with this bill, they sometimes ask themselves, well, what can we get away with?

And so in this case, President Biden, after, I think there were 80 bills that were introduced in Congress, all of them turned down. And so then they scrounge around. There was one theory, Senator Elizabeth Warren urged one way to do this, and the lawyers looked at it and said, that's a bridge too far.

Even we can't agree to that. And then, they came up with a new theory that no one had imagined. They found a 2003 statute that was passed for the purpose of dealing with the military deployments to Iraq and Afghanistan. So here, you have military people who are being taken away from their ordinary employment, sent abroad.

And the president is authorized to modify their student loan agreements so that they don't suffer any direct economic loss as a result of the deployment. The statute actually uses the word direct twice. It has to be direct losses that are directly caused by the emergency. But Congress didn't want to limit this just to the Iraq and Afghanistan incursions because they were expecting others, too.

So they refer to the military situation, and then they say and disaster relief and other emergencies.

>> Bill Whalen: Right, and that's the Heroes Act, the Heroes Act.

>> Michael McConnell: That's right. That's the Hero's Act.

>> Bill Whalen: Right, right, but the key phrase here is national emergency.

>> Michael McConnell: Right, right, now, under the Emergencies Act, the president can name all kinds of things as emergencies.

 

>> Bill Whalen: Right.

>> Michael McConnell: And there are a number of them that have been around for decades. And the under, one might think, looking at the Heroes Act, that this has to be using the legal principle that we call adjustam generis, which is when you have a list, and there's a general term at the end, you interpret the general term as being in like situations.

You might think that it would be limited to like situations, but, you know, the COVID it's undoubtedly Covid was an emergency, but it is not like the other things. But I think there's another point here that is even more clear, which is that the statute limits, the beneficiaries of these changes in student loans to those directly affected.

And yet there are lots and lots of people who have been directly affected by Covid, including people who hold loans, small business loans, For example, college graduates were affected like everybody else, but less so. I mean, all the evidence is that the people who really were profoundly affected economically by Covid were those who provide in person services like house cleaners and people in the store, gardeners and construction workers and nail therapists and barbers.

And those of us who sit in front of computers for a living were the least affected by COVID, and yet nobody else got the benefit. It seems pretty clear that the beneficiaries here were simply a democratic party constituency and not people who are most directly affected by the COVID emergency.

 

>> Bill Whalen: Plus, as you know, Michael, a very specific class of people who have government held loans, because what Myra Brown in her case is after, she has $17,000 in debt, but it's commercially held debt, so she doesn't benefit from the president's plan.

>> Michael McConnell: That's right, so it's only those who have government loans, yes.

 

>> Bill Whalen: All right, Michael, can you explain to me what the major questions doctrine is and how that applies to these cases?

>> Michael McConnell: Well, I can, in our brief, we don't actually invoke this because it is a fairly recent doctrine in the Supreme Court and has its critics. But the basic idea is this, when interpreting an act of Congress, where the language might, if you squint at it, properly, extend to a particular situation, the major questions doctrine is that if this is a really big, important deal, it's unlikely that Congress intended that to follow from ambiguous language more colorfully.

The Supreme Court used to use the expression that you don't hide elephants in mouse holes. So some of us like to call this the elephants and mouse holes canon of interpretation. It's really the same thing. And it's really a common sense idea that when trying to interpret the intent of Congress, that if Congress meant for the president to be able to spend over $450 billion, they would have said so.

But we, as I said, didn't rely on that because we don't, first of all, we think it's not necessary, and we think it's distracting because that doctrine has itself gotten as a matter of contention. And Congress has passed a statute that says that spending under an appropriation bill is not authorized unless the spending is specifically mentioned.

And so there's already a requirement in statute passed by Congress that requires a specificity. So we thought it was not necessary to invoke any general canons of interpretation.

>> Bill Whalen: So how do you expect the court to rule here?

>> Michael McConnell: Well, if they get to the merits, I just would be very surprised if they did not hold that this is unauthorized.

This is really a stretch. And if they say that the HEROES Act authorizes this, it's off to the races for future presidents, because this would be such an attenuated interpretation. I think it's much harder to predict whether they are going to allow anyone to sue over this. This is called the doctrine of standing, and no one can sue in federal court unless they have standing to sue, which generally means that they have themselves been injured by the act.

Our brief explicitly does not take a position on the standing question because we, the signatories on the brief, don't claim any expertise about that. That's a sort of legal and jurisdictional question. Our signatories are all people who have been involved in administering appropriations statutes and spending statutes. I'm on there because I was an assistant general counsel of Office of Management and Budget.

But we have three directors of the office, former directors of the Office of Management and Budget, two former attorneys general, several other treasury and OMB officials, and that's where our expertise lies. The standing question is tough. In recent years, ever since a case against the Bush administration called Massachusetts against EPA, in which Massachusetts sued to try to require the administration to recognize carbon dioxide as a pollutant under the Clean Air Act.

And in the course of that, the court, in a five four decision written by Justice Stevens, the court said that when states sue, they will get, quote, special solicitude. And since then, there have been, there has grown this enormous phenomenon of state attorneys general suing presidents of the opposite party and trying to stop various executive or presidential initiatives.

And this got going toward the end of the Obama administration. That accelerated under Trump, and now it's accelerating again under Biden. And essentially, Republican AGs sue Democratic presidents, and Democratic AGs sue Republican presidents, and they go to a favorable judge. You can often predict which judges are going to be more likely to go.

So they go to a favorable judge, then they get a nationwide injunction, and this may very well be overturned, a lot of them are, but it takes several years. And if you can stop presidential initiatives in their tracks for several years, that's pretty much of a victory. And so the Supreme Court could use this case as an opportunity, not so much to talk about the separation of powers problem with spending, but a very separate kind of separation of powers problem with states using their positions as states in order to stymie a federal policy.

Now, in this case, Nebraska, actually, Missouri is the lead state. I don't know why Nebraska is the one in the title, but Missouri has a state owned student loan financing agency that just loses money as a result of this. It's a straightforward dollars and cents loss. And so Missouri asserts that it has standing to assert the authority of the injury against this agency.

The complication, the reason that's difficult is that this agency is a separate agency and its debts are not held by the State, it has a separate board, it has the right to sue and be sued, and it chose not to sue. And so the question becomes, does a state and the state attorney general stand in the shoes of an agency that is an ostensibly independent part of the state government?

And there's never been a case quite like that before in the Supreme Court, making it a little difficult to predict. And then there's this other student loan holder, private student loan holder, and her argument is that she's essentially being discriminated against.

>> Bill Whalen: Right.

>> Michael McConnell: She's just like the others in terms of her need and that she didn't get the benefit, and she's putting this primarily as a procedural point.

She says that had the administration done what the Administrative Procedure Act requires, which has put this proposal out for notice and public comment, that she would have been able to argue in that proceeding. That they shouldn't be discriminating against for some people, and against others within the class of potential recipients.

So we'll see whether either she or the states have standing.

>> Bill Whalen: So nine Justices on the court, Michael, six depicted as conservative, nominated by Republican presidents, three seen as progressive. Let's look at the three progressives, I assume they will vote together. I assume they'll support the administration. If so, Michael, what legal rock will they cling to?

 

>> Michael McConnell: First of all, I'm not so cynical as to say we know, we don't know that they'll be in lockstep. They haven't always been, and-

>> Bill Whalen: Really, it seems like they usually are.

>> Michael McConnell: No, they usually are, but I also think that the Supreme Court has been looking more like a partisan, divided institution.

And I don't think the justices like to be thought of that way. It's at least possible that they will make more of an effort to draw back from these partisan splits and find grounds for agreement sometimes. But in any event, I think the rock that they would cling to is probably standing.

They will probably vote to say that these particular plaintiffs do not have standing to bring these challenges.

>> Bill Whalen: And who do you think would take the lead on the other side? Would the Chief write the majority opinion, or would you look for another justice to do it?

>> Michael McConnell: This is the sort of case that I would think he might assign to himself, as Chief Justice he is the senior person on any majority and can decide who writes the opinion.

And this does seem like the kind of case that would be of particular interest to him. And he has a particular skill at writing opinions that are of, that don't go flying off to the extremes. I think he might want that here.

>> Bill Whalen: Okay, let's shift, Michael, and look at three cases before the court.

Right now you drew these to my attention, so these are ones that you're following, obviously. Case number one, Michael, is Moore v Harper. This is the state of North Carolina struggles with redistricting. Tim Moore is the speaker of North Carolina's House of Representatives. Becky Harper is a realtor living in the research triangle who volunteered her name.

She is also very passionate about gerrymandering. She's a member of common cause. At issue here, Elections Clause. In Article One, Section 4 of the Constitution, whether state legislatures alone are empowered by the constitution to regulate federal elections without oversight from state courts. Michael, the ACLU declared, this is nothing less than, quote, the case that could upend democracy.

 

>> Michael McConnell: So there's been a lot of hyperventilating about this case. I do not think it's going to upend democracy. I think that's really, I think people like to imagine that whatever is happening today is like the most important thing that ever happened under the sun. The way this case comes down is the Constitution unambiguously gives the authority to regulate the elections, which would include the right drawing of districts to, quote, state legislatures.

Not to the states, to the state legislatures. And in other provision of the constitution, there are other instrumentalities of state government that are also mentioned by name. Sometimes they mention the state governors. They mention state judges in the supremacy clause. Elsewhere they mention conventions, constitutional conventions of the states.

So the Constitution does seem to speak, and then there are other places where it refers simply to the state. So it seems as though the framers of the constitution knew how to say state when they meant state, and knew how to refer to particular entities of the state government when they intended to do that.

In this case, they speak of state legislatures. And in the briefing, the two sides in the case went to the extreme. So one side,

>> Michael McConnell: The plaintiffs against the so-called apparent gerrymander, this isn't about the merits of whether there was really anything wrong with the plan or not.

But that side takes the position that we should just ignore the specification of the state legislature, and treat it as if it said state. So that's a pretty ambitious thing to say, that we just ignore the language. But the other side takes the opposite and I think, equally extreme position.

So they say when the state legislature is mentioned, that means the state legislature alone, that it isn't governed by the constitutional limitations of the state constitution, including any judicial review by the state courts under the state constitution. And that, too, is a very odd idea, that when the framers refer to state legislatures in order, you would think that that means the state legislatures as they exist.

And these are not entities that just sort of spring out of the mind of Zeus, these are set up by the state constitutions and they have their procedures, and their powers are set forth in the state constitutions. And it would take more than just the reference to state legislatures to persuade me, that the framers meant that the legislatures are suddenly liberated from the constraints of state constitutional law.

And at the oral argument, so those are the briefs. And I think that's why you had so many people panicking and saying, if this extreme position is taken, it's gonna be the end of the world. The Supreme Court is not interested in these extremes. This became very clear in the oral argument that no members of the court were buying the claim that the legislatures could just do whatever they wanted.

Instead, they were exploring a number of plausible Intermediate positions, of which the main one that they were exploring was the idea that if the state court reviewing the action of the state legislature was within a zone of reasonableness, such that it looked like this was actually a good faith interpretation of the Constitution, that that would go.

But that in the unusual case, if a state court just sort of usurped the power of the legislature and said, well, we're the court. We're going to do this for ourselves, that a federal court would have the authority to step in. Now, whether this particular North Carolina case is an example of that, reasonable minds presumably differ.

Now, I offered, with a co author, Bill Bode of University of Chicago, in an outside piece, not a brief, but a scholarly essay, another possible middle ground, which rather appeals to me and will Bode that these should be interpreted as requiring that the actual districting or actual regulation of the elections be done by the legislature, subject fully to judicial review in the state court, but that the state court cannot itself issue a new map.

So in a districting situation, sometimes the court just hires an expert witness, supposedly nonpartisan, and then draws up their own map and institutes that. And our position is that that does seem to be contrary to the US Constitution when it says state legislature, and that that's how the Supreme Court ought to interpret it.

And that would make this kind of judicial review the same as what we have in almost every other area of the law. Because if a state court, or a federal court for that matter, holds that a statute passed by a state legislature is unconstitutional, they do not write a new statute and put it into the books.

What they say is, what you did is unconstitutional, and you have to fix it. And our position is that that would be the same. Now, there are some practical issues involved in that, but as a means of making sense of the words of the Constitution and the intent of the Constitution, we're persuaded by that.

Supreme Court didn't show any particular interest in that theory either.

>> Bill Whalen: And, Michael, how would this ruling affect the 2024 election?

>> Michael McConnell: Well, it's hard to know, but there are those who fear that state legislatures will run amok. And simply, if they don't have, if there are no constraints on them from their state courts, they will draw district lines, which are wildly unfair.

But in presidential elections, they might decide not to award electoral votes to the winner of the popular election, but instead to the person that they wanted. And, of course, the, the antics of some of the Trump supporters after 2020 are gonna lend some weight to this because that is what some of them wanted the state legislatures to do just that.

I think it's more significant that not a single legislature came even close to doing that. And I think the idea that this is actually going to happen presupposes a degree of skullduggery that I think is not very likely. The real story, I think, of the Trump election shenanigans is that a tiny handful of private lawyers outside of the White House Counsel's Office, outside of the Justice Department, came up with some wild schemes that were blocked by every responsible official, including Republican governors, Republican legislatures, Republican election heads, Republican judges, Republican Justice Department officials, everyone.

And of course, what was tried was nefarious, and we shouldn't forget that. But it was also feckless and stupid and unsuccessful, and we should rejoice at just how powerful the checks are in our system against that sort of thing. And the worry is if the Supreme Court were to hold that state legislatures have unchecked power in this area that it would feed into this kind of a plan.

As I say, I don't think there's much of a chance that they're going to go that way.

>> Bill Whalen: Right, let's move on to the second case, Michael, and that is 303 Creative, LLC v Elenis. 303 Creative is a Colorado business that specializes in website development. It wanted to branch out to making wedding announcement websites, but the owner of the company said that doing so for same sex marriages violates her christian faith.

She wanted to put a disclaimer on her website saying she wouldn't do same sex weddings. She soon discovered that doing so would violate a Colorado anti-discrimination law. So Michael. And the question whether applying a public accommodation law to compel an artist to speak or stay silent violates the free speech clause of the First Amendment.

 

>> Michael McConnell: Yeah, so these cases have been coming up in the system ever since the Supreme Court decided in Obergefell that there's a constitutional right to same sex marriage.

>> Bill Whalen: Right.

>> Michael McConnell: And I have to say, I don't understand why someone would want to have a cake baked for their weddings and take their pictures and design their websites by somebody who doesn't believe that they should be allowed to get married.

I think these are phony cases, and I think they're actually designed not to get the services, but rather to get in the face of the very small number of people who dissent from the ruling. And we'll see. There have been, the last time this came to the Supreme Court, it was about a baker, and the court resolved it on the ground that there were a bunch of anti-Christian, bigoted comments made by the commissioners in the course of adjudicating the matter and that kind of biased decision making required them to reverse the decision.

That's kind of one case only decision. I think many of the same issues are back. This time, there's a more solid conservative majority. And I think it's rather likely, I don't like to be in the position of predicting, but it is, I think, rather likely that That the website designer is going to win.

And I think she should win because people who engage in expressive activities, even as a business, I think, have a right not to have their voices co opted to say things that they don't believe in. I think that's true of lawyers who don't have to take clients for causes that they don't believe in and everybody else.

And there's the distinction here as to the anti discrimination laws is that this website designer has said she will work for anybody straight, gay. She's not discriminating the basis of who they are. It's that she disapproves of same sex weddings, marriages. She thinks that they are contrary to God's commands for his people.

And she doesn't wanna be in the position of designing something to celebrate and praise something she doesn't believe in. The real problem here is that the Colorado courts interpreted the Colorado law to mean something. It doesn't say the Colorado law is meant to be about who you, it interferes with the right of somebody to decide who they're gonna deal with.

But it doesn't interfere with their right as to what they're going to say, what kind of product, or what kind of service they're going to provide. But state courts have authority over state law. So the Supreme Court has the case. And my guess is that they're going to find that the First Amendment is a bar to this peculiar interpretation.

 

>> Bill Whalen: And if the court comes out, Michael, with a very strong statement about the First Amendment, does that put a chill on these kinds of cases, or is this just something that society is going to have to play out for the foreseeable future?

>> Michael McConnell: My guess is as soon as they decide the case, these are gonna fade into the woodwork because I don't actually think most of them are real cases anyway.

I don't think that gay couples want someone who doesn't approve of your being able to get married.

>> Bill Whalen: Yeah, well put. Okay, let's go onto the third case here. This is National Pork Producers Council v Ross. At stake here is the constitutionality of California's proposition twelve, passed in 2018.

That was the so-called farm animal confinement initiative supported by Brad Pitt, Leonardo DiCaprio. I don't know if Michael McConnell supported as well at the time or not. Ellen DeGeneres. This is back when Ellen was nice, when we liked Ellen, not her current kinda villainous role. Ellen cut a video saying, hey, California, if there's two things I love, it's animals and kindness.

That's why I love prop 12. Here's what prop 12 did in a nutshell. It established minimum space requirements based on square feet for calves raised for veal breeding pigs and egg laying hens. In the case of pork products, Michael, prop twelve prohibits the sale in California pork products when the seller knows or should know that the meat came from the offspring of a breeding pig that was confined in a, quote, cruel manner.

Cruel, defined as 24 living space or less. So here, Michael, we have the question of whether states can pass laws and discriminate against interstate commerce, in this case, out of state companies being able to work in California.

>> Michael McConnell: So this is a hard case. But I think if the court thinks about the issue beyond animal rights, because this could be anything, essentially what California has done is that it has passed a law regulating the conditions under which pork can be raised and is applying it nationwide, not just in California, but nationwide.

It is literally sending inspectors around to other places in the country to see whether farmers are complying with California law in places like Ohio. And the penalty for violating California law is your pork can't be sold in California.

>> Bill Whalen: Right.

>> Michael McConnell: And my view is that that is a form of extraterritorial regulation in violation of, in this case, the commerce clause.

Actually, I think the extraterritorial principle applies under a number of different clauses, depending on what it is that the government is doing. So if the government were to make, let's say California wanted to make it illegal, a criminal violation to treat pigs poorly, that would then be in Ohio and brought charges based, that would be a due process violation.

If what they said is no farmer who, who doesn't comply with our regulations can come to California, that would be a right to travel violation. In this particular case, it's a commerce clause problem because it's about its regulation of goods that flow in interstate commerce. And if this case comes out in favor of California, I think our culture wars are going to become much worse than anything we've seen because the states have not done this sort of thing in the past.

It's this new thing. And so California could, for example, say the whole country has to comply with our minimum wage. And so nobody's, I don't know, let's say you make jackets, your jackets can't be sold in California unless they were made in conformity to California's minimum wage. Or California could pass a statute about the imposing ESG rules, environmental governance, and whatever it is.

Yeah, I forget what the S stands for. But the basically woke rules on companies and they can do that for California, but this way they could govern the whole country. Because California is such a huge market, it's 13% of the market for pork. Companies elsewhere would have to comply with California law.

But let me tell you, if California does this, Texas is going to do it too, and it's going to be opposite rules. And if all the big states, California and Texas and Florida and New York and Illinois all are passing ideological legislation and expecting the entire country to have to conform to it on penalty of not being able to sell their goods in these large states.

We have completely destroyed the common market that the framers intended in the Constitution. One of the key things that they were doing when they created the Constitution was to make this one economic market and not to allow the states, the squabbling states, to be able to be little economic fiefdoms throwing their economic weight around.

Now that said, there's no real precedent to support this and it's gonna be a hard sell in the Supreme Court.

>> Bill Whalen: Right, and you call this a sleeper case because this at the. At the end of this is about much more than just pigs and hens and eggs.

 

>> Michael McConnell: Much more. I mean, it's just astonishing to me that various publications, National Review, for example, talking about this case, it was all about treating pigs a lot. I'm all for treating pigs well, but I'm not for letting California legislate for the entire country.

>> Bill Whalen: Right well put.

A few minutes left, Michael, I'd like to turn your attention to the court itself. I didn't mention in the beginning at part of your bio, you were a clerk on the court at one time, correct?

>> Michael McConnell: Many years ago?

>> Bill Whalen: Well, we'll see how many, but you clerked for Brennan.

 

>> Michael McConnell: That's right, okay?

>> Bill Whalen: Well, it's been years since you've been there. I'm kind of curious to your thoughts about how the court's going about its business these days, because last summer, we had the leak of the draft opinion on the case overturning Roe V Wade. The shock over that, the court then commissioned an investigation.

Its report came out, I think, in January, Michael, 20 page report that came with few conclusions at the end, they never found out who leaked it. Some interesting side notes there, they interviewed a few justices. They talked to a few clerks who said they actually, they talked to some friends about the case and so forth, but they didn't actually find a culprit or for not.

I'm just curious to your thoughts about how the court's operating in the aftermath of that. If everyone's getting along well, you think if there's any kind of tension or if that was just a blip in the greater scheme of the Supreme Court.

>> Michael McConnell: Well, this isn't something that we on the outside can know for sure.

 

>> Bill Whalen: Right?

>> Michael McConnell: I, I would guess that this is the sort of thing that could be quite poisonous within the court. Now, if the justices all knew that their fellow justices had nothing to do with it, and they're just as mad as they are and had taken every possible steps with their clerks, well, then maybe it wouldn't be a problem.

But I think it would be just a normal human thing for many of them to be looking over their shoulder and saying, well, I just don't know. And one of the peculiarities about this controversy is that people on the left tend to say, well, I bet it's one of the conservatives who did this.

And they have a theory, and then the people on the right say, it's got to be one of the progressive liberals on the courthouse that did this, and they have their theory. Everybody assumes that the other guy is much more skullduggerous than we are. And this kind of unsolved mystery, it just pours gasoline on the fire of distrust.

 

>> Bill Whalen: You were clerking pre Internet day, so how would you have leaked something if you had the opportunity and the motive to do so? Would you have smuggled it out of the Supreme Court and underneath your clothes and then run to the local Kinkos and Xerox it, and then all the president's men, drop it off in a garage or.

 

>> Michael McConnell: Yeah, that's exactly what I mean. And it wouldn't have been hard to smuggle it out. They don't search people for paper on the way out, I think it would be relatively easy. And one of the things that's interesting about this particular leak is that it was not an electronic digital copy that was leaked, it's actually a scan of the paper copy that was leaked.

So we know that somebody actually took out their camera and photographed each page, and whoever it was, was able to disguise their tracks pretty well.

>> Bill Whalen: Okay, a couple of thoughts for you, Michael, on ethics. The American Bar Association adopted resolution recently urging the Supreme Court to enact a code of judicial ethics similar to what lower courts are beholden to.

A couple of senators sprung into action. Senator Chris Murphy, he's a Connecticut Democrat, authored a bill that would establish a statutory ethics officer in a process for filing complaints against justices for violating ethics rules. Sheldon Whitehouse, he's a Rhode Island Democrat, he filed a bill. He authored a bill, Michael, which includes a complaint process and creates a panel for reviewing justices and discretion.

So tell me what's going on here. We're concerned about courts, about the ethics of the justices. Is this a reaction, Democrats reacting to Clarence Thomas, or is there something bigger going on? So remember, there are complaints back in 2016 about Ruth Bader Ginsburg being very vocal about Donald Trump.

 

>> Michael McConnell: So there are complaints about both sides and have been for a long time. The issue here isn't really the substance the justices claim to be following basically the same substance of ethical rules that are applicable to the lower courts. And a lot of the claims, I mean, the activities of Clarence Thomas's wife have been the source of a lot of this, but espouses justices have been involved in things related to the court, and we don't tend to apply ethical rules.

So Ruth Gotter Ginsburg's husband, Marty, was a major partner in a law firm that had cases before the Supreme Court and so forth, and nobody considered that to be an ethical problem. But it isn't the substance. The question is whether there's going to be some outside entity with the power to tell a justice that he or she can't cast a vote in a particular case.

And I tell you, I trust the justices more in the bright light of day to comply with the rules than I do some outside entity deciding whether justices can vote in particular cases. That is a very dangerous thing. It means that the Supreme Court is no longer the final word.

It's gonna be whoever that entity is, is gonna be able to decide cases under the table by manipulating ethical rules, which is gonna be very easy to do. I think it's a very bad idea.

>> Bill Whalen: Michael, what the senators are proposing here is a constitutional, because it seems to me that what you have is one branch of government involving itself in the internal affairs of another branch.

 

>> Michael McConnell: Probably.

>> Bill Whalen: So it is constitutional.

>> Michael McConnell: No, I said it's probably unconstitutional.

>> Bill Whalen: Unconstitutional. Okay.

>> Michael McConnell: Probably.

>> Bill Whalen: Would a Supreme Court end up having to decide that ironically.

>> Michael McConnell: Probably.

>> Bill Whalen: It explodes.

>> Michael McConnell: It's turtles all the way down.

>> Bill Whalen: It is. All right, wrap up.

So, okay, so we covered three cases. We've covered the amicus. Anything else you'd like to get into here?

>> Michael McConnell: No, I think we've probably filled the hour.

>> Bill Whalen: Sounds good. Well, Michael, thanks for coming on. Thanks for explaining what's going on the court, and always fascinated by the work you do, not just for Hoover, but also for the Stanford law school.

 

>> Michael McConnell: Thank you.

>> Bill Whalen: You've been listening to Matters of Policy and Politics, a Hoover Institution podcast devoted to governance and balance of power here in America and around the world. If you've been enjoying this podcast, please don't forget to rate, review, and subscribe to us. And if you wouldn't mind, please spread the word.

Get your friends to have a listen. The Hoover Institution has Facebook, Instagram, and Twitter feeds. Our Twitter handle is @hooverInst, that spelled over I-N-S-T. I don't think Michael McConnell is on Twitter, in fact, I be shocked if he's on Twitter.

>> Michael McConnell: He is not.

>> Bill Whalen: That's why you're a wise academic, my friend.

But you can keep track in by signing up for Hoover's daily report, which comes to your inbox each day. And you can find that by going to hoover.org as well. For the Hoover Institution, this is Bill Whelan. We'll be back soon with the installment of Matters of Policy and Politics.

Until then, take care. Thanks for listening.

>> Michael McConnell: Thank you.

>> Speaker 3: 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.