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Detailed Prediction: Trump's Tariffs before the Supreme Court-What's Going to Happen · The Ben Ferguson Podcast

• 0:00
  Speaker 1: Welcome. It is Verdic with Center, Ted Cruz, Ben Ferguson
• 0:03
  Speaker 1: with you. Center. It's nice to be with you.
• 0:05
  Speaker 2: If you're watching this on video, I'm in nash Vegas
• 0:08
  Speaker 2: right now, not Las Vegas, Nashville. You're in Washington, DC,
• 0:12
  Speaker 2: and we've got a lot to talk about. It deals
• 0:14
  Speaker 2: with the Supreme Court.
• 0:15
  Speaker 3: Well, that's right.
• 0:16
  Speaker 4: We are expecting any day now the Supreme Court decision
• 0:19
  Speaker 4: on President Trump's tariffs, his imposition of tariffs. They've been
• 0:22
  Speaker 4: a major element of his foreign policy, a major element
• 0:25
  Speaker 4: of his economic policy. We're going to do a deep
• 0:28
  Speaker 4: dive breakdown of the Supreme Court case, what is likely
• 0:31
  Speaker 4: to happen, what we know about, what was argued, and
• 0:34
  Speaker 4: what the outcome is likely to be.
• 0:36
  Speaker 3: We're going to give you that as well.
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  Speaker 2: com promo code verdict. All right, So, Senator, tariffs have
• 2:30
  Speaker 2: been something that the President, like many other presidents, have used.
• 2:34
  Speaker 2: The President used him in a very big way when
• 2:36
  Speaker 2: he got re elected, and he made it clear when
• 2:38
  Speaker 2: he was campaigning he was going to use tariffs for leverage.
• 2:41
  Speaker 2: He was going to get better deals he thought America
• 2:43
  Speaker 2: was being taken advantage of. And he has been very
• 2:46
  Speaker 2: successful in many of these tariffs. But now tariffs have
• 2:49
  Speaker 2: made its way to the Supreme Court. Explain, first of all,
• 2:53
  Speaker 2: just to remind you how did we get to where
• 2:55
  Speaker 2: we are now, who was challenging it, and what are
• 2:59
  Speaker 2: they actually looking at ruling on.
• 3:01
  Speaker 4: Well, the case is a case called Trump versus Vos Selections.
• 3:05
  Speaker 4: It was argued on November fifth of twenty twenty five,
• 3:09
  Speaker 4: and we're expecting a decision relatively soon. It could be
• 3:13
  Speaker 4: this week, it could be in the next month, but
• 3:15
  Speaker 4: it's expected to be soon.
• 3:17
  Speaker 3: And it is a challenge.
• 3:18
  Speaker 4: From a number of small businesses who are challenging the
• 3:21
  Speaker 4: imposition of tariffs that Trump is put in place. This is,
• 3:25
  Speaker 4: I believe going to be a close case. I'm going
• 3:27
  Speaker 4: to break down the arguments. I'm going to give you
• 3:28
  Speaker 4: the legal issues that are at issue, and then I'm
• 3:31
  Speaker 4: going to make a prediction. I'm going to predict what
• 3:33
  Speaker 4: the Supreme Court is going to do. But first of all,
• 3:36
  Speaker 4: let's talk about where we are. So today, one hundred
• 3:40
  Speaker 4: and thirty three billion dollars have been collected during the
• 3:44
  Speaker 4: Trump administrations. This is through February of twenty twenty six,
• 3:51
  Speaker 4: and the tariffs have been imposed using a statute called AEPA,
• 3:56
  Speaker 4: which is the International Emergency Economic Powers Act.
• 4:00
  Speaker 3: Now what does AIPA say.
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  Speaker 4: AIPA says that if the President declares a national emergency
• 4:09
  Speaker 4: with respect to a foreign threat, the President may quote
• 4:15
  Speaker 4: regulate importation or exportation of any property in which a
• 4:21
  Speaker 4: foreign country or a national thereof has any interest by
• 4:24
  Speaker 4: any person. Central to this case is what that phrase
• 4:30
  Speaker 4: regulate importation means. So the president has declared an emergency,
• 4:35
  Speaker 4: there's notice bee it about that, and IIPA says, once
• 4:38
  Speaker 4: he does so.
• 4:39
  Speaker 2: And by the way, that's his right. I want to
• 4:41
  Speaker 2: be clear about that, So be understand. That's what liberals
• 4:43
  Speaker 2: have said. No, no, you don't have a right to The
• 4:45
  Speaker 2: president has a right to do that.
• 4:46
  Speaker 3: Correct, So it's not an inherent constitutional right.
• 4:49
  Speaker 4: It's not just like any president can stand up and
• 4:52
  Speaker 4: say there's an emergency. AIPA, which is a statute Congress's
• 4:56
  Speaker 4: passed has given the president the authority declared emergency, and
• 5:00
  Speaker 4: and then it is given to him the power once
• 5:03
  Speaker 4: he declares an emergency to regulate importation of any property
• 5:07
  Speaker 4: from a foreign country. That is the entire basis of
• 5:11
  Speaker 4: the Trump tariffs that have been imposed. And the question
• 5:16
  Speaker 4: is does the power to regulate imports include the power
• 5:23
  Speaker 4: to impost tariffs. Now, on the other side, the constitutional
• 5:27
  Speaker 4: provision says Article one, Section eight, Article one.
• 5:30
  Speaker 3: So wake up.
• 5:31
  Speaker 4: The constitution is structured. Article one lays out the powers
• 5:35
  Speaker 4: of Congress. Article two lays out the powers of the
• 5:38
  Speaker 4: President and the executive and Article three lays out and
• 5:42
  Speaker 4: creates the judiciary. Article one, section eight enumerates the powers
• 5:47
  Speaker 4: of Congress, and in particular, it says, as relevant here,
• 5:52
  Speaker 4: the Congress shall have the power to lay and collect taxes, duties, imposts,
• 5:59
  Speaker 4: and excise And it also says later on in Article one,
• 6:03
  Speaker 4: Section eight that Congress shall have the power quote to
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  Speaker 4: regulate commerce with foreign nations, and so tariffs are at
• 6:12
  Speaker 4: the intersection of laying, collecting taxes, duties in posts and exercises,
• 6:17
  Speaker 4: in other words, taxing and regulating commerce with foreign nations. Historically,
• 6:25
  Speaker 4: tariffs have been a traditional tool for regulating imports and
• 6:30
  Speaker 4: international trade. On the other hand, tariffs are literally taxes
• 6:35
  Speaker 4: their duties. It's the oldest and most classic form of taxation.
• 6:40
  Speaker 4: And so the dispute is whether Congress, when it used
• 6:44
  Speaker 4: the language in a EPA, which is a statute to
• 6:47
  Speaker 4: giving the President the power to regulate imports, whether it
• 6:51
  Speaker 4: clearly and constitutionally delegated tariff authority to the executive and
• 6:59
  Speaker 4: that raises yet another issue. One of the arguments the
• 7:02
  Speaker 4: plaintiffs are raising here is something called the non delegation principle.
• 7:07
  Speaker 4: The non delegation principle says it limits how much Congress
• 7:11
  Speaker 4: can transfer its own lawmaking authority to the executive branch.
• 7:17
  Speaker 4: Congress is a general matter, it can delegate the authority
• 7:20
  Speaker 4: to implement and administer the law, but Congress has to
• 7:24
  Speaker 4: make the key policy choices, and so that is a
• 7:28
  Speaker 4: major argument.
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  Speaker 3: The plaintiffs are using.
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  Speaker 4: A second major argument the plantiffs are using is something
• 7:33
  Speaker 4: called the major questions doctrine, and the major questions doctrine
• 7:39
  Speaker 4: says it focuses on statutory clarity, and it says, when
• 7:43
  Speaker 4: the executive branch claims authority to take an action of
• 7:47
  Speaker 4: vast economic or political significance, courts require a clear and
• 7:52
  Speaker 4: specific authorization from Congress. And so one of the challenges
• 7:56
  Speaker 4: the plaintiffs are making here is this does not meet
• 7:59
  Speaker 4: the major your questions doctrine. Those are the two central
• 8:03
  Speaker 4: issues in this case.
• 8:05
  Speaker 2: When there's when people hear this and some of this
• 8:07
  Speaker 2: seems like this is Donald Trump being harassed by the
• 8:12
  Speaker 2: left and by Democrats, He's not getting to do his job.
• 8:16
  Speaker 2: Is that an argument that is that for many Americans
• 8:19
  Speaker 2: is legitimate or is this a grand argument that hey,
• 8:23
  Speaker 2: we should have this out at the Supreme Court, Or
• 8:26
  Speaker 2: is he just being harassed because he's Donald Trump and
• 8:28
  Speaker 2: he want an election Democrats don't like that he's in
• 8:30
  Speaker 2: charge because the American people chose him.
• 8:32
  Speaker 4: Listen, there's no doubt that every decision President Trump is making,
• 8:36
  Speaker 4: every policy is putting in place, results in a lawsuit.
• 8:39
  Speaker 4: And the Democrats Democrats, state attorneys general, left wing interest
• 8:44
  Speaker 4: groups are suing every.
• 8:45
  Speaker 3: Step, and much of that is harassment.
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  Speaker 4: That being said, this legal issue is real, and I'm
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  Speaker 4: going to make a prediction. My prediction right now is
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  Speaker 4: the US Supreme Court is going to uphold President Trump's
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  Speaker 4: imposition of terror. I'm going to further predict really that
• 9:04
  Speaker 4: the Supreme Court is going to uphold it by a
• 9:07
  Speaker 4: vote of five to four. That it is going to
• 9:09
  Speaker 4: be close, and I'm going to break it down in
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  Speaker 4: a moment. But what I will say if this case
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  Speaker 4: had been decided a year ago, if it had been
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  Speaker 4: decided at the outset of the president's term, I think
• 9:24
  Speaker 4: the Court would have ruled that Trump cannot impose these
• 9:28
  Speaker 4: tariffs if it were addressing the legal issue in the abstract.
• 9:32
  Speaker 4: Here's why I believe the Court is going to allow
• 9:36
  Speaker 4: the tariffs to stay in place. And it's a basic
• 9:39
  Speaker 4: principle of reliance. We've had one hundred and thirty three
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  Speaker 4: billion dollars in tariffs imposed already and collected. It has
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  Speaker 4: been central to President Trump's foreign policy, and the Court
• 9:53
  Speaker 4: institutionally is very reluctant to do something that dramatically upsets
• 9:59
  Speaker 4: the status quo. So a year ago, I think the
• 10:02
  Speaker 4: court probably would have ruled differently, But I think today
• 10:07
  Speaker 4: you're going to get five justices to say we're too
• 10:09
  Speaker 4: far down the road. Too much has been implemented. And
• 10:13
  Speaker 4: this is two core to how this president is implementing
• 10:17
  Speaker 4: foreign policy, because foreign policy under the Constitution is given
• 10:21
  Speaker 4: principally to the president. So that's my prediction is five
• 10:25
  Speaker 4: to four the Court is going to upheld President Trump's
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  Speaker 4: terrorf authority.
• 10:30
  Speaker 2: What does this also do for the future, and it
• 10:33
  Speaker 2: does this protect in essence the presidency. If it is
• 10:35
  Speaker 2: a five to four ruling, that look, we're going to
• 10:38
  Speaker 2: lose an election again, I think based on history where
• 10:42
  Speaker 2: a Democrats in the White House. But what I don't
• 10:45
  Speaker 2: want to see is every time someone's there, we're playing
• 10:48
  Speaker 2: these games. Like I want the president if he's chosen
• 10:52
  Speaker 2: by the people and the majority of the people decide
• 10:55
  Speaker 2: Bill Clinton's the president United States of America, that he
• 10:58
  Speaker 2: can do his job because that's through the people who chose.
• 11:01
  Speaker 2: I don't like presidents when they're being harassed or trying
• 11:03
  Speaker 2: to do their job.
• 11:04
  Speaker 4: Look for the foreseeable future, every president that comes into power,
• 11:08
  Speaker 4: you're going to have lawsuits challenging what they're doing.
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  Speaker 3: That's just the reality of a divided country.
• 11:14
  Speaker 4: I will say this one thing where Donald Trump has
• 11:18
  Speaker 4: genuinely changed my mind concerns tariffs and trade policy. Now listen,
• 11:23
  Speaker 4: I'm a free trader. I still believe in free trade.
• 11:26
  Speaker 4: I think free trade is good for America. I think
• 11:28
  Speaker 4: it generates jobs. I think it generates economic growth. But
• 11:31
  Speaker 4: and this is a big, big.
• 11:33
  Speaker 2: Let me ask you for people listening, I want to,
• 11:35
  Speaker 2: I want to be clear explain free trade. And I
• 11:37
  Speaker 2: do this because people hear words and they don't exactly
• 11:40
  Speaker 2: know what means, and I get messages afterwards going I
• 11:42
  Speaker 2: wish you guys would have explained free trade. So when
• 11:44
  Speaker 2: you say you're a free trader, explain the definition of
• 11:47
  Speaker 2: that quickly.
• 11:48
  Speaker 4: So historically there have been two broad economic views of trade,
• 11:53
  Speaker 4: free traders and protectionists. Free traders believe that if you
• 11:58
  Speaker 4: expand trade and commerce between the United States and other countries,
• 12:02
  Speaker 4: that America benefits. That are farmers sell more goods, sell
• 12:07
  Speaker 4: more crops, sell more livestock into foreign countries. That are
• 12:11
  Speaker 4: manufacturers sell more products that are manufactured here. That are
• 12:15
  Speaker 4: service providers sell more services, and that the aggregate economic
• 12:20
  Speaker 4: impact is positive for the United States. Protectionists historically believed
• 12:27
  Speaker 4: you enact really high tariffs on imports, you discourage imports. Now,
• 12:32
  Speaker 4: by the way, when you do that, foreign countries enact
• 12:34
  Speaker 4: really high tariffs on imports to their countries, and you
• 12:39
  Speaker 4: end up principally selling goods into your own market. It
• 12:42
  Speaker 4: would mean the United States produces goods but mostly sells
• 12:45
  Speaker 4: them to America and doesn't sell them to the world.
• 12:49
  Speaker 4: I believe between the two that free trade has produced
• 12:53
  Speaker 4: far better economic growth. Now I'm going to give you
• 12:55
  Speaker 4: the caveat and where Trump has changed my mind.
• 13:01
  Speaker 3: I think President Trump.
• 13:02
  Speaker 4: Is deustrated that the thread of tariffs or the temporary
• 13:08
  Speaker 4: imposition of tariffs, is one of, if not the most
• 13:14
  Speaker 4: potent diplomatic and negotiating tool the president has. And what
• 13:20
  Speaker 4: we have seen is the President has used the thread
• 13:23
  Speaker 4: of tariffs to incredible effect and it has worked. So
• 13:28
  Speaker 4: let's rewind to last year April second, President Trump announced
• 13:33
  Speaker 4: a whole list of very high tariffs on the world.
• 13:37
  Speaker 4: I gotta say, ten years ago, Ben I would not
• 13:39
  Speaker 4: have liked that. I would have been very unhappy with that.
• 13:41
  Speaker 4: I would have said, look that this is going to
• 13:43
  Speaker 4: hurt the people of America because tariffs are taxes, and
• 13:46
  Speaker 4: their taxes paid by consumers. Now, the way a tariff operates,
• 13:49
  Speaker 4: and this gets down to economics. If you impose a
• 13:52
  Speaker 4: tariff and the actual good is sold, some of that
• 13:56
  Speaker 4: tariff is paid by the American consumers, and some of
• 13:59
  Speaker 4: the costs of that tar tariff is paid by the
• 14:02
  Speaker 4: foreign producer. And it depends on the particular market how
• 14:05
  Speaker 4: much is paid by the consumer versus the producer. I
• 14:09
  Speaker 4: was not upset though at the April second tariffs. And
• 14:12
  Speaker 4: here's why we've talked about this before on the podcast.
• 14:16
  Speaker 4: There is a battle within the Trump administration. There are
• 14:20
  Speaker 4: two camps. One camp is urging the president use the
• 14:25
  Speaker 4: tariffs you've imposed, the tariff shoe threatened as leverage to
• 14:30
  Speaker 4: get our foreign trading partners to lower their own tariffs
• 14:34
  Speaker 4: to open up their markets. A lot of foreign countries
• 14:36
  Speaker 4: have what are called non tariff barriers. They make it
• 14:39
  Speaker 4: very hard for American farmers and ranchers and manufacturers to
• 14:42
  Speaker 4: sell their products into foreign countries. And one camp says,
• 14:48
  Speaker 4: use the tariff's Trump is threatening to incentivize foreign countries
• 14:53
  Speaker 4: to open up their markets.
• 14:55
  Speaker 3: I am very much in that camp.
• 14:56
  Speaker 4: Scott Bessont, the Treasury Secretary, is very much in that camp.
• 15:00
  Speaker 4: Elon Musk, when he was in the administration, was very
• 15:03
  Speaker 4: much in that camp. There's a second camp, and that
• 15:07
  Speaker 4: is a camp that believes tariffs are great, not as
• 15:11
  Speaker 4: a means to an end, but as an end in
• 15:14
  Speaker 4: and of itself, and wants to see very high tariffs
• 15:18
  Speaker 4: in perpetuity forever. I think the leading person in the
• 15:22
  Speaker 4: administration in that camp is Peter Navarro in the White House.
• 15:26
  Speaker 4: I think that camp is mistaken. I think those policies
• 15:29
  Speaker 4: are harmful. I think if we have a world where
• 15:32
  Speaker 4: America has very high tariffs and all our trading partners
• 15:35
  Speaker 4: have very high tariffs, I think that's going to hurt
• 15:38
  Speaker 4: Texas farmers, Texas ranchers, manufacturers.
• 15:41
  Speaker 3: I think that's a bad outcome. And I think President Trump,
• 15:44
  Speaker 3: in the Oval.
• 15:46
  Speaker 4: On almost a daily basis, is listening to and deciding
• 15:51
  Speaker 4: between a battle between the two camps. How that resolves matters.
• 15:56
  Speaker 4: But my point the president's threat of tariffs. Listen, Donald
• 16:01
  Speaker 4: Trump is an unorthodox negotiator.
• 16:04
  Speaker 3: To put it.
• 16:05
  Speaker 1: Mild, his Yeah, that's a great way of putting it.
• 16:10
  Speaker 4: Look the way Trump negotiates, he walks up to you,
• 16:15
  Speaker 4: he whacks inned the head with a two by four,
• 16:17
  Speaker 4: and then he says, let's talk.
• 16:19
  Speaker 3: Yeah. I got to say it is effective.
• 16:22
  Speaker 4: And here's an amazing thing that I've seen, and it's
• 16:25
  Speaker 4: why Trump has changed my mind on tariffs. I've seen
• 16:30
  Speaker 4: over the last year and a couple of months our
• 16:33
  Speaker 4: trading partners rushing to America saying we want to slash
• 16:39
  Speaker 4: our tariffs and open our markets to American goods in
• 16:41
  Speaker 4: a way that I've never seen in my life. And
• 16:45
  Speaker 4: what I've verged the President is take yes for an answer.
• 16:50
  Speaker 4: You've threatened tariffs, they're lowering their tariffs. Negotiated deal where
• 16:55
  Speaker 4: everyone lowers their tariffs. That is a win win, and
• 16:59
  Speaker 4: there is an amazing irony. There's an amazing irony, Ben
• 17:03
  Speaker 4: in that. I think there's a real possibility Donald J.
• 17:06
  Speaker 4: Trump could go down in history as the greatest free
• 17:10
  Speaker 4: trade president the world has ever seen. Now that's astonishing
• 17:14
  Speaker 4: because he is Historically he's been a skeptic, of vocal
• 17:19
  Speaker 4: skeptic of free trade, and yet by threatening tariffs, a
• 17:23
  Speaker 4: huge part of his argument against what was considered free
• 17:26
  Speaker 4: trade is he said, look, this is not free.
• 17:28
  Speaker 3: This is not fair.
• 17:30
  Speaker 4: We have no tariffs or very low tariffs on products
• 17:33
  Speaker 4: coming into our market, and every other country has really
• 17:37
  Speaker 4: high tariffs and hammer our manufacturers. That's not fair. He's
• 17:40
  Speaker 4: right about that. And so what I've verged the President's
• 17:44
  Speaker 4: take yes for an answer and focus on reciprocity. If
• 17:48
  Speaker 4: they lower their tariffs, we lower ours. And I got
• 17:51
  Speaker 4: to say, I think Trump has shown that is an
• 17:53
  Speaker 4: incredibly effective foreign policy and economic policy.
• 17:59
  Speaker 2: There's also and added benefit that we've seen, and there
• 18:02
  Speaker 2: was a lot of people that were skeptical, that were nervous,
• 18:05
  Speaker 2: and that is how much money we've collected through these tariffs.
• 18:08
  Speaker 2: That has been also I think one of those like
• 18:11
  Speaker 2: X factors of this as well, because as the President
• 18:13
  Speaker 2: was playing this high stakes game of chicken in essence
• 18:17
  Speaker 2: and we keep winning, we were also collecting an awful
• 18:20
  Speaker 2: lot of money.
• 18:21
  Speaker 1: Yeah, that was one of the upsides of this as well.
• 18:24
  Speaker 4: Unquestionably one hundred and thirty three billion dollars has come
• 18:26
  Speaker 4: in already. And let's do a little bit of a
• 18:29
  Speaker 4: breakdown of the oral argument. So at the oral argument,
• 18:32
  Speaker 4: John Sower, who is the US Solicitor General, he argued
• 18:35
  Speaker 4: for the United States Neil Catchall argued for the plaintiffs,
• 18:39
  Speaker 4: the small businesses. Now I know Neil very well. Neil
• 18:43
  Speaker 4: was Solicitor General under Obama. Neil clerked at the Supreme
• 18:48
  Speaker 4: Court at the same time I did so when I
• 18:49
  Speaker 4: was clerky for Chief Justice Renquist. Neil was clerky for
• 18:53
  Speaker 4: Steven Bryer. So we're friends. We've known each other a
• 18:55
  Speaker 4: long time. In fact, in two thousand, during the two
• 19:01
  Speaker 4: thousand election between George W. Bush and and Al Gore,
• 19:05
  Speaker 4: I was part of the litigation team representing Bush and
• 19:08
  Speaker 4: Bush versus Gore. Neil was part of the litigation team
• 19:12
  Speaker 4: representing Al Gore. And we're buddies. We're friends. So we
• 19:15
  Speaker 4: would call each other late at night and we were like,
• 19:17
  Speaker 4: what kind of ridiculous argument are you're making? This is stupid,
• 19:21
  Speaker 4: I can't believe you're saying this. And it's a little
• 19:24
  Speaker 4: bit just friends giving each other a hard time. And
• 19:26
  Speaker 4: we actually had a wager Neil and I did on
• 19:29
  Speaker 4: the outcome. I said, look, Bush's gonna prevail, We're gonna win.
• 19:33
  Speaker 4: He said, no, Gore's gonna prevail. Well, obviously I won
• 19:37
  Speaker 4: that wager, and the wager was dinner, and so Neil
• 19:43
  Speaker 4: had to take me out to dinner. But you're gonna
• 19:44
  Speaker 4: like this, Ben, do you know what Neil did to
• 19:47
  Speaker 4: sort of exact his revenge as he was paying off
• 19:49
  Speaker 4: the wager.
• 19:50
  Speaker 1: I cannot wait to hear this.
• 19:52
  Speaker 3: He took me to a vegetarian restaurant.
• 19:56
  Speaker 2: Yeah, if you've ever had dinner with you, that's like
• 19:59
  Speaker 2: taking me to to terry in restaurant.
• 20:01
  Speaker 1: That's like the worst decision ever. So what did you
• 20:04
  Speaker 1: even order?
• 20:05
  Speaker 4: I don't remember. I have vegetables because they didn't have any.
• 20:07
  Speaker 4: Meet I'm a carnivore.
• 20:10
  Speaker 3: But I kind of laughed.
• 20:11
  Speaker 4: I was like, all right, Neil well played Okay. So
• 20:14
  Speaker 4: Neil is a very experienced, very capable Supreme Court lawyer.
• 20:17
  Speaker 4: So is John Sower. So you had two excellent advocates
• 20:20
  Speaker 4: going at it. Let's take Chief Justice Roberts. Chief Justice
• 20:25
  Speaker 4: Roberts repeatedly tried to reframe the case away from foreign
• 20:31
  Speaker 4: affairs and towards taxation of Americans. So, for example, Chief
• 20:35
  Speaker 4: Justice Roberts asked, he said, tariff's and dealings with foreign powers. Yes,
• 20:40
  Speaker 4: but the vehicle is the imposition of taxes on Americans,
• 20:43
  Speaker 4: and that has always been the core power of Congress
• 20:47
  Speaker 4: and John Sower tried to press back on behalf of
• 20:50
  Speaker 4: the Trump administration, and Roberts responded, well, who pays the tariff?
• 20:57
  Speaker 4: If a tariff is imposed on automobiles, who pays them?
• 21:01
  Speaker 4: And the answers I said before is consumers pay some
• 21:04
  Speaker 4: of them and the foreign producer pays some of them.
• 21:07
  Speaker 4: Roberts went on and he highlighted the structural collision between
• 21:12
  Speaker 4: the executive foreign affairs power and Congress's taxing authority. Roberts said, quote,
• 21:19
  Speaker 4: to have the president's foreign affairs power Trump, that basic
• 21:23
  Speaker 4: power of Congress seems to me at least to neutralize
• 21:29
  Speaker 4: between the two powers, the executive power and the legislative power.
• 21:33
  Speaker 4: And then he said, yes, of course tariffs and dealings
• 21:36
  Speaker 4: with foreign powers, but the vehicle is the imposition of
• 21:40
  Speaker 4: taxes on Americans. Justice Kagan, so, Justice Kagan is the
• 21:45
  Speaker 4: smartest of the liberal justices on the Court by far.
• 21:48
  Speaker 4: I know Justice Kagan well, she was the dean of
• 21:50
  Speaker 4: the Harvard Law School. She was the US Solicitor General also,
• 21:55
  Speaker 4: and she's a very very smart liberal lawyer and judge.
• 22:00
  Speaker 4: What Justice Kagan tried to do is frame this all
• 22:03
  Speaker 4: within the non delegation doctrine so Justice Kagan said about
• 22:09
  Speaker 4: the taxing power, she said, quote, but not with respect
• 22:12
  Speaker 4: to tariffs, not with respect to quintessential taxing powers, which
• 22:16
  Speaker 4: are given by the Constitution to Congress. And she framed
• 22:21
  Speaker 4: the case through the delegation doctrine, saying, quote in consumers'
• 22:25
  Speaker 4: research just last year, which is the case the Supreme
• 22:28
  Speaker 4: Court just decided, we had a tax before us. If
• 22:32
  Speaker 4: there's no ceiling on this tax, we sort of assumed
• 22:35
  Speaker 4: if there was no ceiling, it would raise a delegation
• 22:39
  Speaker 4: power problem.
• 22:41
  Speaker 3: And then she applied that logic to AEPA.
• 22:44
  Speaker 4: She said, how does your argument fit with the idea
• 22:47
  Speaker 4: that a tax with no sealing, a tax that can
• 22:50
  Speaker 4: be anything the president wants, would raise a pretty deep
• 22:55
  Speaker 4: delegation problem. And she rejected the government's argument to relabel tariff.
• 23:01
  Speaker 4: She said, no, not with respect to tariff's, not with
• 23:03
  Speaker 4: respect to quintessential taxing powers. Now understand what Justice Kagan
• 23:08
  Speaker 4: is doing. The non delegation doctrine is a very important
• 23:12
  Speaker 4: constitutional limitation on Congress giving too much power to the executive.
• 23:18
  Speaker 4: It is also something conservatives care a great deal about.
• 23:21
  Speaker 4: I think Justice Kagan, Justice Kagan, the three liberals are
• 23:24
  Speaker 4: going to vote against Trump no matter what, in any circumstance.
• 23:27
  Speaker 3: So Kagan is a no.
• 23:29
  Speaker 4: But she's trying in a very savvy way to argue
• 23:32
  Speaker 4: it in a way that will appeal to Justice Gorsich,
• 23:36
  Speaker 4: Chief Justice Roberts, or Justice Barrett. She's trying to frame
• 23:41
  Speaker 4: it in terms of conservative principles. Now, Justice Corsic, if
• 23:45
  Speaker 4: you look at his questions, his question showed a significant
• 23:50
  Speaker 4: degree of skepticism to the administration's position, and in particular
• 23:56
  Speaker 4: focusing on the Major Questions doctrine. Again, the Major's Questions
• 23:59
  Speaker 4: doctrine is a big conservative principle that limits the power
• 24:04
  Speaker 4: of the executive branch. It's really important. So Gorsuch asked,
• 24:08
  Speaker 4: what is the limiting principle here? And he asked further,
• 24:12
  Speaker 4: if regulate importation includes tariffs, what stops the president from
• 24:19
  Speaker 4: imposing them for any asserted foreign threat? He asked some hypotheticals.
• 24:24
  Speaker 4: He said, could the president impose massive tariffs to address
• 24:29
  Speaker 4: something like climate change if that's deemed a foreign threat?
• 24:33
  Speaker 4: It's actually a good question, And he pressed further. He said,
• 24:36
  Speaker 4: once you accept that premise, it's hard to see what's
• 24:40
  Speaker 4: left of the limitation.
• 24:44
  Speaker 3: Justice Barrett.
• 24:45
  Speaker 4: She went on to say Congress knows how to grant
• 24:50
  Speaker 4: tariff authority explicitly, Why isn't clearer language required if Congress
• 24:56
  Speaker 4: meant to confer that power? And she pressed the US
• 25:00
  Speaker 4: Solicitor General. She said, if regulate imports includes tariffs of
• 25:04
  Speaker 4: any size, what work is left for the rest of
• 25:07
  Speaker 4: the statute to do? Where do we find the limiting
• 25:12
  Speaker 4: principle in the statute itself? So look, in terms of
• 25:18
  Speaker 4: the questioning, Roberts appeared skeptical, Gorstch appeared skeptical, and Barrett
• 25:25
  Speaker 4: appeared skeptical. So on the conservative side, the justice that
• 25:29
  Speaker 4: seemed most receptive was Brett Kavanaugh. And Brett Kavanaugh said
• 25:35
  Speaker 4: the Court has historically been very comfortable with very broad
• 25:39
  Speaker 4: delegations in the foreign affairs context. So he framed it
• 25:43
  Speaker 4: in terms of, look, the president has enormous flexibility when
• 25:46
  Speaker 4: it comes to foreign affairs. Justice Kavanaugh said in one
• 25:51
  Speaker 4: of his opinions that the non delegation concerns have less
• 25:54
  Speaker 4: force where Congress is empowering the president and foreign affairs
• 26:00
  Speaker 4: and and Justice Kavanaugh focused on the historical practice, said
• 26:05
  Speaker 4: there's a long tradition of broad delegations over foreign commerce
• 26:09
  Speaker 4: going back to the founding, and and he engaged the
• 26:14
  Speaker 4: Solicitor General seriously. He said, that's consistent with cases like
• 26:18
  Speaker 4: Chicago and Southern Airlines, and Curtis right, I think Kavanaugh
• 26:23
  Speaker 4: is going to be a likely vote to uphold the
• 26:25
  Speaker 4: tariff authority and and so that argument was significant. Now,
• 26:31
  Speaker 4: Justice Thomas. Justice Thomas historically asked very few questions that
• 26:37
  Speaker 4: was true here, but his questions were focused on history
• 26:42
  Speaker 4: and the original understanding of the Constitution.
• 26:44
  Speaker 3: So Justice Thomas.
• 26:45
  Speaker 4: Asked, historically, weren't tariffs one of the primary ways Congress
• 26:51
  Speaker 4: regulated foreign commerce? And he went back to that. He said,
• 26:55
  Speaker 4: at the founding there was a sharp distinction. Was there
• 26:58
  Speaker 4: a sharp distinction between regulating imports and imposing duties on them?
• 27:05
  Speaker 4: So he was very much focused on what the practice
• 27:07
  Speaker 4: of the country has been from the founding. He also asked,
• 27:11
  Speaker 4: if tariffs were understood as tools of trade regulation, why
• 27:16
  Speaker 4: wouldn't the power to regulate foreign commerce include them?
• 27:20
  Speaker 3: Very good question.
• 27:22
  Speaker 4: And when it came to non delegate the non delegation doctrine,
• 27:26
  Speaker 4: he said the following quote, non delegation is a modern doctrine.
• 27:32
  Speaker 4: What evidence do we have that Congress historically could not
• 27:36
  Speaker 4: confer this kind of authority in matters of foreign commerce.
• 27:42
  Speaker 4: Justice Thomas's question suggests he is very likely to vote
• 27:47
  Speaker 4: in favor of the president's tariff authority. And then let's
• 27:51
  Speaker 4: focus on Justice Alito. Justice Alito was really focused on workability,
• 28:00
  Speaker 4: the remedies and consequences, so he said, he was asking
• 28:05
  Speaker 4: about practicality. He said, if we accept your position, what
• 28:10
  Speaker 4: happens to all the tariffs that have already been collected?
• 28:14
  Speaker 4: He also highlighted, and I think this is critical. This
• 28:17
  Speaker 4: may be the most important question asked. There are enormous
• 28:21
  Speaker 4: reliance interest here, both for the government and for private
• 28:25
  Speaker 4: actors who have ordered their affairs around these teriffs. And
• 28:29
  Speaker 4: he questions the plaintiffs, He said, is your position that
• 28:33
  Speaker 4: must always use the word tariff expressly even in statutes
• 28:38
  Speaker 4: dealing with foreign emergencies? That doesn't sound very plausible, And
• 28:42
  Speaker 4: he pressed whether the case could be resolved narrowly. He said,
• 28:46
  Speaker 4: why isn't this something that can be handled through a
• 28:48
  Speaker 4: limiting construction rather than a broad holding that calls into
• 28:52
  Speaker 4: question a lot of past practice. I actually think Justice
• 28:56
  Speaker 4: Alito's questioning is going to frame aim what the Court
• 29:00
  Speaker 4: does now. We have in a lot of big cases
• 29:05
  Speaker 4: of six' three. Divide you have the three liberals who
• 29:07
  Speaker 4: vote Against trump on, everything and you have six justices
• 29:12
  Speaker 4: that are on the conservative side of the, aisle although they.
• 29:15
  Speaker 4: Vary i'm going to predict we're going to lose. ONE
• 29:18
  Speaker 4: i don't know, which BUT i think we will lose
• 29:21
  Speaker 4: in all likelihood Either gorsic or bear. It even Though
• 29:27
  Speaker 4: Chief Justice roberts was skeptical at oral. Argument i'm going
• 29:31
  Speaker 4: to predict The Chief Justice roberts votes to uphold the,
• 29:35
  Speaker 4: tariffs And i'm going to predict that he writes the majority.
• 29:37
  Speaker 3: Opinion and, wow the.
• 29:41
  Speaker 1: Reasons bold, predictions by the, Way this makes it.
• 29:44
  Speaker 4: Fun and, LOOK i have no insight. INFORMATION i could
• 29:47
  Speaker 4: be totally, wrong BUT i do know the court quite.
• 29:51
  Speaker 4: WELL i did spend my entire career BEFORE i was
• 29:53
  Speaker 4: in The senate was arguing before The.
• 29:55
  Speaker 3: Court and, Look roberts in particular is an.
• 29:59
  Speaker 4: Instantittionalist AND i actually think this case is quite similar
• 30:04
  Speaker 4: to The obamacare. Case The obamacare case during The obama
• 30:09
  Speaker 4: presidency was a challenge To, obamacare and Ultimately Chief Justice
• 30:14
  Speaker 4: roberts Upheld, obamacare AND i think he did so because
• 30:19
  Speaker 4: he thought to strike it down would be a massive,
• 30:21
  Speaker 4: change would wreak, chaos and it would question the legitimacy
• 30:27
  Speaker 4: of the. Court it would question the authority of the.
• 30:29
  Speaker 4: Court and SO i think he made an institutionalist, decision
• 30:33
  Speaker 4: let's not disrupt the status. QUO i think that same
• 30:37
  Speaker 4: instinct here is going to lead him to, say these
• 30:42
  Speaker 4: tariffs have been. Imposed they've been the heart of the
• 30:45
  Speaker 4: president's foreign policy and economic, policy and so we're not
• 30:49
  Speaker 4: going to set them.
• 30:50
  Speaker 3: Aside that is my.
• 30:51
  Speaker 4: Prediction and you will end up with a majority that
• 30:54
  Speaker 4: consists Of Chief Justice roberts writing the majority, Opinion thomas And,
• 31:00
  Speaker 4: alito And, cavanaugh and either bear it Or, gorsage and
• 31:06
  Speaker 4: the dissenters will be the three liberals and either bear
• 31:08
  Speaker 4: it Or.
• 31:08
  Speaker 3: Gorsach that's my. Prediction we'll see what happens.
• 31:11
  Speaker 1: For the next sixty.
• 31:12
  Speaker 2: Seconds can you hit pause on your life and just
• 31:15
  Speaker 2: think about. This in communities around the, world millions of
• 31:19
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• 32:15
  Speaker 2: to learn. More all, right final question for, you and
• 32:18
  Speaker 2: that is the politics of. This if it comes out
• 32:22
  Speaker 2: the way that you just, predicted how big of a
• 32:25
  Speaker 2: victory is this specifically For Donald trump and how important
• 32:30
  Speaker 2: is it moving forward for the next three years of his.
• 32:32
  Speaker 2: Presidency and the second question is how big of a
• 32:36
  Speaker 2: defeat is this for the left who immediately went After
• 32:39
  Speaker 2: Donald trump with the tariffs and said doom and gloom
• 32:42
  Speaker 2: and said this is going to be.
• 32:43
  Speaker 4: Overturned, look if The trump administration, wins it's a big.
• 32:47
  Speaker 4: Deal this is the central part of his foreign policy
• 32:52
  Speaker 4: and trade. Policy by the, way we've also talked about
• 32:54
  Speaker 4: how he's used tariffs at other.
• 32:55
  Speaker 3: Circumstances for, Example.
• 32:57
  Speaker 4: We've done a deep dive previously on using tariffs to
• 33:01
  Speaker 4: Force mexico to provide water To South. Texas that's Something
• 33:05
  Speaker 4: i've urged him to. Do he's threatened tariffs And. Mexico
• 33:09
  Speaker 4: during the Entire biden. Administration mexico had been violating the
• 33:12
  Speaker 4: nineteen forty four water treaty with The United states and
• 33:15
  Speaker 4: had stolen over a million acre feet of water From South.
• 33:18
  Speaker 4: Texas The biden administration would do nothing to Force mexico
• 33:22
  Speaker 4: to comply with a. Treaty President, trump at my, urging
• 33:27
  Speaker 4: threatened tariffs Against, mexico And mexico immediately. Complied it was
• 33:31
  Speaker 4: powerful and. Effective it's a big part of the REASON
• 33:33
  Speaker 4: i changed my. Mind i'm, Like, wow we Got mexico
• 33:36
  Speaker 4: to do something in our national interest just by threatening.
• 33:40
  Speaker 4: Tariffs now'd to be, clear if we imposed high tariffs
• 33:44
  Speaker 4: and perpetuity Against, MEXICO i think that'd be really bad For,
• 33:48
  Speaker 4: america to be terrible For.
• 33:49
  Speaker 3: Texas.
• 33:50
  Speaker 4: Texas our, farmers, ranchers manufacturers make enormous money trading With,
• 33:54
  Speaker 4: mexico SO i don't want to see high trade. Barriers
• 33:58
  Speaker 4: but the threat of tariffs Got mexico to provide the
• 34:02
  Speaker 4: water they owed us under the. Treaty, now if the
• 34:05
  Speaker 4: decision goes the wrong way from The trump, administration if
• 34:08
  Speaker 4: they strike down the, tariffs it's not the end of
• 34:10
  Speaker 4: the day because there are other avenues to impose.
• 34:14
  Speaker 3: Tariffs so they're, three in.
• 34:15
  Speaker 4: Particular number, one section three oh one of The Trade
• 34:19
  Speaker 4: act of nineteen seventy, four which authorizes tariffs to ENFORCE
• 34:23
  Speaker 4: us rights under trade agreements or to counter unfair foreign.
• 34:27
  Speaker 4: Practices the second way that president could try to impose
• 34:31
  Speaker 4: these tariffs again is under section two thirty two of
• 34:34
  Speaker 4: The Trade Expansion act of nineteen sixty, two which allows
• 34:38
  Speaker 4: tariffs on imports threatening national, security which was the Vehicle
• 34:43
  Speaker 4: trump used for stealing aluminum. Tariffs and the third is
• 34:48
  Speaker 4: under section two oh one of The Trade act of
• 34:51
  Speaker 4: nineteen seventy, four which permits temporary quote safeguard tariffs to
• 34:56
  Speaker 4: protect domestic industries from serious injury caused by import. Surgis
• 35:01
  Speaker 4: so there are three other statutory bases that the president
• 35:05
  Speaker 4: could go, to and if The Spring court rules against,
• 35:07
  Speaker 4: HIM i think The president.
• 35:08
  Speaker 3: Will go to use.
• 35:09
  Speaker 4: Those so you could end up at the same, result
• 35:12
  Speaker 4: but at the end of the, Day i'm going back
• 35:14
  Speaker 4: to my prediction five to four The trump administration.
• 35:17
  Speaker 1: Prevails, wow it's gonna be really fun to watch. THAT
• 35:20
  Speaker 1: i love the.
• 35:21
  Speaker 2: Prediction, well, obviously let you know how the prediction works.
• 35:25
  Speaker 2: Out and you're either gonna look. BRILLIANT i have no prediction,
• 35:28
  Speaker 2: here So i'm just gonna let this be either you're
• 35:30
  Speaker 2: brilliant OR i get to rag on you in the
• 35:32
  Speaker 2: show after.
• 35:32
  Speaker 1: This i'm excited about.
• 35:33
  Speaker 2: That rarely do you give me that, chance by the,
• 35:36
  Speaker 2: way so for, me this is kind of. Fun i'm
• 35:38
  Speaker 2: not gonna. Lie i'm not gonna.
• 35:39
  Speaker 1: Lie don't. Forget we do this Show, Monday Wednesday.
• 35:41
  Speaker 2: Friday hit that subscribe or auto download button wherever you
• 35:45
  Speaker 2: get your. Podcasts if you like to watch the, podcast
• 35:47
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• 35:50
  Speaker 2: can also hit that subscribe button on YouTube so that
• 35:52
  Speaker 2: you don't miss an episode there as. Well and The
• 35:54
  Speaker 2: senate AND i will see you back here On friday.
• 35:56
  Speaker 1: Morning