Untitled Document

[00:00:00] All righty, folks. So, huge breaking [00:00:02] news. As someone had predicted, that [00:00:04] would be me. When President Trump pushed [00:00:07] forward his so-called Liberation Day [00:00:08] tariffs, the Supreme Court struck down [00:00:10] those liberation day tariffs today in a [00:00:13] 63 decision. The Supreme Court basically [00:00:16] struck down the 10% baseline tariff on [00:00:18] all trading partners. It struck down [00:00:21] higher reciprocal tariffs, what he [00:00:22] called reciprocal tariffs, on dozens of [00:00:24] countries. They weren't actually [00:00:26] reciprocal tariffs because those [00:00:27] countries were not actually charging us [00:00:29] those tariffs. We just were charging [00:00:30] them higher tariffs on the basis of [00:00:32] trade deficits. Drug trafficking tariffs [00:00:34] on Canada, Mexico, China, those are [00:00:36] gone. And the 145% effective rate on [00:00:39] most Chinese goods is gone as well. The [00:00:41] Supreme Court says that the president [00:00:42] does not have the unilateral authority [00:00:44] or ability to actually just impose [00:00:46] broadscale tariffs. Now, the president [00:00:48] does have some specified tariff powers. [00:00:51] We'll get to that in a minute. But the [00:00:53] reason that I had said originally that [00:00:54] these tariffs were unconstitutional is [00:00:56] because article one powers of the purse [00:00:59] belong to Congress. They do. That [00:01:02] includes obviously the power to tariff. [00:01:05] Article one of the constitution [00:01:08] specifically names the powers of the [00:01:11] purse. [00:01:12] And it says that the constitution [00:01:15] includes the authority to tax, borrow [00:01:18] money, regulate commerce, coin money, [00:01:20] establish post offices, declare war and [00:01:22] raised armed forces. Right? That is what [00:01:24] is in the tax and spend and commerce [00:01:27] powers of Congress. Now the question is [00:01:30] what can be delegated, what can't be [00:01:31] delegated and what also has been [00:01:33] delegated. So obviously in certain [00:01:34] specified contexts, Congress has [00:01:36] delegated specific tariff authority to [00:01:38] the president. But do at at any point [00:01:41] did Congress just say to the president, [00:01:43] you can tariff anybody for any reason [00:01:46] interminably at any rate that you want? [00:01:48] And the answer there says the Supreme [00:01:50] Court is no. Now, it's sort of a [00:01:51] fascinating breakdown. I I agree with [00:01:53] the decision legally. I think this is [00:01:55] obviously a correct decision from the [00:01:57] Supreme Court. We'll get to sort of the [00:01:59] fascinating dissent in a second because [00:02:00] the breakdown, which was 6 to3, in my [00:02:02] opinion, should have been 9 nothing, but [00:02:04] it was 6 to3 for a couple of interesting [00:02:06] reasons. Justice Roberts wrote the [00:02:08] opinion. It was joined by Sotomayor [00:02:11] Kagan, Gorsuch, Barrett, and Jackson. [00:02:13] The more traditionally textualist [00:02:16] leaning members of the court actually [00:02:18] voted in favor of upholding the tariffs. [00:02:21] That would be Alo Thomas Kavanagh joined [00:02:24] with them. Now, as you know, I am a [00:02:27] Clarence Thomas stan, like his biggest [00:02:29] fan. So, it takes a lot for me to [00:02:30] disagree with Justice Thomas. There's a [00:02:32] rare case where I disagree with Justice [00:02:34] Thomas and also huge Alto stand. A rare [00:02:36] case where I disagree with Justice Alto. [00:02:39] The question under consideration here [00:02:41] was whether the president of the United [00:02:43] States has the unilateral authority [00:02:44] under [00:02:46] the EPA which is the international [00:02:49] emergency economic powers act which is [00:02:51] the power cited by the president of the [00:02:52] United States to levy tariffs on the [00:02:55] entire world at once. That is the [00:02:58] question at issue. The text of the EA [00:03:02] that was at issue says this quote, "At [00:03:06] the times and to the extent specified in [00:03:07] section 1701 of this title, the [00:03:09] president may under such regulations as [00:03:11] he may prescribe by means of [00:03:12] instructions, licenses or otherwise, and [00:03:15] here are the key words. [00:03:17] Investigate, block during the pend [00:03:19] pendency of an investigation, regulate, [00:03:21] direct and compel, nullify, void, [00:03:23] prevent or prohibit any acquisition, [00:03:25] holding, withholding, use, transfer, [00:03:26] withdrawal, transportation, importation, [00:03:28] or exportation of or dealing in or [00:03:31] exercising any right, power, or [00:03:32] privilege with respect to or [00:03:33] transactions involving any property in [00:03:36] which any foreign country or a national [00:03:37] thereof has any interest by any person [00:03:39] with respect to any property subject to [00:03:41] the jurisdiction of the United States. [00:03:44] So what the majority found is that that [00:03:46] does not include broadscale unilateral [00:03:49] gigantic tariff power. That that [00:03:52] includes for example embargos for [00:03:54] national security reasons. That it [00:03:57] includes regulations on the basis of [00:04:00] violation of international treaty for [00:04:02] example but it does not include the [00:04:04] ability of the president to simply wake [00:04:06] up one morning print out a gigantic [00:04:07] poster board and say there is now a 45% [00:04:10] tariff on the Solomon Islands. that was [00:04:12] not delegated in the IEPa. And I think [00:04:14] that that is pretty obviously correct. [00:04:16] And we'll get to the details of the [00:04:18] opinion in just a second. First, your [00:04:19] reminder, the only way that we can bring [00:04:20] you live updates like this in detail is [00:04:23] if you subscribe. We do need your help [00:04:25] over there at Daily Wire Plus. Please [00:04:26] head over there and subscribe right now [00:04:28] because we are building up our [00:04:29] investigative reporting. We are building [00:04:31] up our live capacities in extraordinary [00:04:34] ways. So, we do need your help. Head on [00:04:35] over to Daily Wire Plus right now. Okay. [00:04:37] So there are basically two arguments [00:04:40] made by the majority written by Justice [00:04:41] Roberts. And I will say this, I do find [00:04:44] it somewhat ironic that Justice Roberts [00:04:47] claimed that Obamacare was not a tax for [00:04:52] purposes of [00:04:55] finding it constitutional, but finds [00:04:57] that tariffs are in fact a form of tax [00:05:01] for purposes of finding them [00:05:02] unconstitutional as as promoted by the [00:05:04] president. So, I'm not a Justice Roberts [00:05:07] fan. I think that he is quite funible in [00:05:08] his language, even if the majority gets [00:05:10] it right here. In any case, basically, [00:05:12] there are two arguments that are made by [00:05:13] the majority opinion. One, the IEPA does [00:05:16] not actually authorize tariff power to [00:05:18] the president in the way that the [00:05:19] president has done this. Again, this [00:05:20] doesn't mean the president doesn't have [00:05:22] alternative tariff power. We'll get to [00:05:23] that in a minute. There are other ways [00:05:24] the president, if he wants to, can [00:05:26] impose tariffs, although in much more [00:05:29] specified and targeted ways. Second, the [00:05:32] argument is that the way that you can [00:05:34] tell that they never actually delegated [00:05:36] this power is because if Congress were [00:05:38] to delegate a major question, a major [00:05:41] issue set to the executive branch under [00:05:44] the Constitution, they would be clear in [00:05:46] doing that. They wouldn't have it [00:05:48] wouldn't be a mystery. They would say [00:05:50] all tariff power belongs to the [00:05:51] president. Boom, there it is. They [00:05:53] wouldn't kind of hide it in the text. [00:05:55] That is what's called the major [00:05:56] questions doctrine. It's part of the [00:05:58] non-delegation doctrine. And the [00:05:59] non-delegation doctrine says that unless [00:06:01] Congress has delegated a power that it [00:06:03] holds to the executive branch, then the [00:06:06] executive branch can't exercise that [00:06:08] power. And there are certain powers that [00:06:10] Congress cannot actually just delegate [00:06:11] to the executive branch because those [00:06:13] are core powers of Congress. [00:06:16] This is why you can't just have Congress [00:06:19] become a vestigial organ. It was never [00:06:21] supposed to be this way. And so Justice [00:06:24] Roberts writes, quote, based on two [00:06:27] words separated by 16 others in section [00:06:30] 1702A1B [00:06:32] of IEPA, regulate and importation, the [00:06:36] president asserts the independent power [00:06:37] to impose tariffs on imports from any [00:06:39] country of any product at any rate for [00:06:40] any amount of time. Those words cannot [00:06:42] bear weight. I mean, again, I agree with [00:06:45] this and I I can read you the statute. I [00:06:48] mean the statute literally says that the [00:06:51] president may regulate and then direct [00:06:54] and compel nullify void prevent or [00:06:56] prohibit any acquisition holding [00:06:57] withholding use transfer withdrawal [00:06:58] transportation importation or [00:07:00] exportation of. [00:07:03] So again he it's it's a separation there [00:07:07] and and as he points out there are a [00:07:09] bunch of intervening terms there. [00:07:12] So as Justice Roberts says, article 1, [00:07:14] section 8 of the constitution sets forth [00:07:16] the powers of the legislative branch. [00:07:18] The first clause of that provision [00:07:20] specifies Congress has the power to lay [00:07:22] and collect taxes, duties. Duties would [00:07:24] be tariffs, imposts, and excises. It is [00:07:27] no accident, says the court, that this [00:07:29] power appears first. The power to impose [00:07:31] tariffs is very clearly a branch of the [00:07:33] taxing power. That goes back to an 1824 [00:07:36] very critical case called Gibbons versus [00:07:37] Ogden. [00:07:39] A tariff, after all, is a tax levied on [00:07:41] imported goods and services. [00:07:44] Indeed, the framers expected that the [00:07:46] government would for a long time depend [00:07:47] chiefly on tariffs for revenue. So now [00:07:50] we think of tariffs as sort of an [00:07:51] afterthought because we have the income [00:07:53] tax and and a wide variety of other [00:07:55] taxes taken in by state and federal [00:07:56] government. But originally the major [00:07:58] source of tax revenue was taxes on [00:08:01] imports, namely tariffs. That was [00:08:03] literally the power, a core power of [00:08:06] Congress. And so they can't just take [00:08:07] that and chuck it at the president. And [00:08:08] if they are going to do it, they better [00:08:09] be pretty clear about it. Little wonder [00:08:12] then, says Justice Roberts, that the [00:08:14] first Congress's first exercise of its [00:08:16] taxing power was a tariff law. [00:08:20] Justice Roberts points out, "The [00:08:22] government thus conceds, as it must, [00:08:24] that the president enjoys no inherent [00:08:26] authority to impose tariffs during peace [00:08:28] time." This is one of the sort of [00:08:31] fascinating things that that he points [00:08:32] out. If the president actually had the [00:08:35] inherent power under his foreign policy [00:08:38] powers to just impose tariffs, he [00:08:40] wouldn't need some sort of emergency [00:08:42] declaration. The fact that they use the [00:08:43] emergency declaration means this is not [00:08:45] predominantly a foreign policy question. [00:08:47] That'll become important when I explain [00:08:49] Justice Kavanagh's ascent in just a few [00:08:50] minutes here. [00:08:52] So, Justice Roberts says the government [00:08:55] does not defend the challenged tariffs [00:08:57] as an exercise of the president's war [00:08:58] making powers. The United States, after [00:09:00] all, is not at war with every nation in [00:09:02] the world. The government instead relies [00:09:03] exclusively on IEA. It reads the words [00:09:06] regulate and importation to affect a [00:09:08] sweeping delegation of Congress's power [00:09:10] to set tariff policy authorizing the [00:09:12] president to impose tariffs of unlimited [00:09:14] power and duration on any product from [00:09:16] any country. And again, he's saying [00:09:19] that's not there in the text. If you [00:09:20] read the IEPA, it doesn't say you can [00:09:22] tax anywhere, any time, any amount, for [00:09:25] any period. It doesn't say that in the [00:09:27] IEPA. [00:09:30] And then he cites what's called the [00:09:31] major questions doctrine. Again, the [00:09:33] basic idea of the major questions [00:09:34] doctrine is that again, Congress would [00:09:36] not delegate a central power that it [00:09:39] held. Excuse me. [00:09:47] The basic idea of the major questions [00:09:48] doctrine, Congress would not delegate [00:09:51] the central power that it held to the [00:09:54] executive branch without some sort of [00:09:57] clear remit of authority. It wouldn't [00:09:59] just hide the ball. You know, that's the [00:10:01] major questions doctrine. So, Robert [00:10:03] says, "We have described several cases [00:10:05] as major questions cases. In each, the [00:10:08] government claimed broad expansive power [00:10:10] on an uncertain statutory basis. And in [00:10:12] each, the statutory text statutory text [00:10:14] might as a matter of definitional [00:10:16] possibilities have been read to delegate [00:10:18] the asserted power, but context [00:10:20] counledled skepticism." That context [00:10:22] included not just other language within [00:10:23] the statute, but constitutional [00:10:25] structure and common sense. Again, that [00:10:27] is just a a longer way of saying what [00:10:28] I'm saying right now, which is if [00:10:30] Congress wanted to do it, it just would [00:10:31] have done it. It would have been vague [00:10:34] about it. [00:10:38] Justice Roberts then continues, "When [00:10:40] Congress has delegated its tariff power, [00:10:42] it has done so in explicit terms and [00:10:44] subject to strict limits. Congress has [00:10:46] consistently used words like duty in [00:10:48] statutes delegating authority to impose [00:10:50] tariffs. Against this backdrop of clear [00:10:52] and limited delegations, the government [00:10:53] reads IEA to give the president power to [00:10:56] unilaterally impose unbounded tariffs. [00:10:58] On this reading, moreover, the president [00:11:00] is unconstrained by the significant [00:11:02] procedural limitation in other tariff [00:11:04] statutes and free to issue a dizzying [00:11:06] array of modifications at will. All it [00:11:08] takes to unlock that extraordinary power [00:11:09] is a presidential declaration of [00:11:11] emergency, which the government asserts [00:11:13] is unreable. And the only way of [00:11:14] restraining the exercise of that power [00:11:16] is a veto proof majority in Congress. [00:11:19] Now again, that's right. Okay. And and I [00:11:22] urge conservatives to think about this [00:11:25] very strongly. If the president of the [00:11:27] United States can simply declare [00:11:29] national emergency and then tariff the [00:11:31] entire planet, what can't the federal [00:11:34] government do on the basis of emergency? [00:11:36] There are many statutes that authorize [00:11:38] specific delegations of temporary [00:11:41] authority under emergency circumstances. [00:11:43] If that is broadened out to include [00:11:45] things like tariff the whole planet, [00:11:48] imagine Democrats saying until all [00:11:52] countries stop producing oil powered [00:11:54] vehicles, we are tariffing everybody at [00:11:56] 70%. [00:11:58] They can do that. Under the way that the [00:12:00] administration is interpreting the [00:12:02] statute, they have the power to do that. [00:12:06] As Robert says, it is also telling that [00:12:08] in IEPA's half century of existence, no [00:12:10] president has invoked the statute to [00:12:12] impose any tariffs, let alone tariffs of [00:12:14] this magnitude in scope. The government [00:12:16] points to projections that the tariffs [00:12:17] will reduce the national deficit by $4 [00:12:19] trillion and that international [00:12:20] agreements reached in reliance on the [00:12:22] tariffs could be worth $15 trillion. In [00:12:24] the president's view, whether we are a [00:12:26] rich nation or a poor one hangs in the [00:12:28] balance. These stakes dwarf those of [00:12:30] other major questions cases. So, [00:12:32] actually, Roberts is now turning the [00:12:33] government's argument on itself. So the [00:12:35] president is saying it's an emergency. [00:12:36] We need to bring down the deficit. We [00:12:38] can we can lower it by $4 trillion. [00:12:39] Again, I think those numbers are [00:12:40] nonsense, but that's the argument that [00:12:42] the president and and the government are [00:12:44] making. And Robert says, "Okay, well, if [00:12:46] it's that important, you should go to [00:12:48] Congress. [00:12:49] If you're saying it's it's like of [00:12:51] existential importance, then Congress [00:12:54] should have given you a delegation of [00:12:56] power and you could have gotten it from [00:12:58] them." Again, this is not even a [00:13:00] question over whether tariffs are good [00:13:01] policy or bad policy. Obviously, I think [00:13:03] in the main they are pretty bad policy. [00:13:05] But this is not about that. It's over [00:13:07] whether the president has the unilateral [00:13:10] ability, unchecked ability to simply set [00:13:13] tariffs where he wants to set tariffs. [00:13:16] So says Roberts, the president must [00:13:18] point to clear congressional [00:13:19] authorization to justify his [00:13:20] extraordinary assertion of the power to [00:13:22] impose tariffs. He cannot. Okay. Then [00:13:25] the majority opinion goes through a [00:13:26] couple of the counterarguments. [00:13:29] So, as we'll get to when we get to the [00:13:31] descents in a minute, Justice Kavanaaugh [00:13:33] particularly argues that tariffing power [00:13:36] should theoretically fall under sort of [00:13:38] foreign policy power of the president. [00:13:41] And Roberts and the majority reject that [00:13:43] I think properly. Quote, "As a general [00:13:45] matter, the president of course enjoys [00:13:47] some independent constitutional powers [00:13:49] over foreign affairs even without [00:13:50] congressional authorization. But [00:13:52] flipping the presumption under the major [00:13:53] questions doctrine makes little sense [00:13:55] when it comes to tariffs. In other [00:13:56] words, [00:13:58] Congress is given the power to impose [00:13:59] duties. Saying that the president's [00:14:01] foreign policy power eats that provision [00:14:04] explicitly of the Constitution reverses [00:14:06] the burden of proof. The president has [00:14:08] to prove that duty power has moved into [00:14:11] his domain. He can't just assert it. As [00:14:14] the government admits, says the [00:14:16] majority, the president and Congress do [00:14:17] not enjoy concurrent constitutional [00:14:19] authority to impose tariffs during peace [00:14:20] time. He keeps making this point that if [00:14:23] Congress wanted to authorize the [00:14:24] president to simply impose tariffs [00:14:26] outside of emergency wartime situations, [00:14:29] they could do it. And in certain [00:14:30] circumstances, they have, but they [00:14:32] certainly did not give the president [00:14:33] full-scale authority to go to trade war [00:14:36] with Japan, for example. [00:14:41] Roberts goes on to say that the IEPA [00:14:44] again that is the statutory authority [00:14:45] being used by the administration in [00:14:47] order to press forward these global [00:14:50] tariffs to begin authorizes the [00:14:53] president to investigate block during [00:14:54] the pendency of an investigation [00:14:56] regulate direct and compel nullify void [00:14:58] prevent or prohibit importation or [00:14:59] exploitation. Absent from this lengthy [00:15:01] list of powers is any mention of tariffs [00:15:03] or duties. That omission is notable in [00:15:06] light of the significant but specific [00:15:07] powers Congress did go to the trouble of [00:15:09] naming. It stands to reason that [00:15:11] Congress, if they wanted to intend to [00:15:13] convey the distinct and extraordinary [00:15:14] power to impose tariffs, could have used [00:15:16] the word tariffs. [00:15:19] And not only that, he points out, well, [00:15:21] if regulating importation in this way [00:15:24] just meant tariffs, [00:15:27] then you don't actually need the rest of [00:15:29] this list. If that is a broad category, [00:15:32] that just means you can do whatever the [00:15:33] hell you want with regard to importation [00:15:35] or exportation up to and including [00:15:37] tariffs and bans and investigations and [00:15:39] all the rest of it. You don't need the [00:15:40] rest of the 16-word phrase. You just [00:15:42] obliterate all the other intermediate [00:15:44] terms, which is which is correct. [00:15:47] Robert says, "The power to regulate [00:15:49] importation does not fill the void. [00:15:51] Regulate, as that term ordinarily is [00:15:53] used, means to fix, establish, or [00:15:55] control, to adjust by rule, method, or [00:15:57] established mode, to direct by rule or [00:15:58] restriction, to subject to governing [00:16:00] principles or laws. This definition [00:16:02] captures much of what a government does [00:16:04] on a day-to-day basis. Indeed, if [00:16:06] regulate is as broad as the principal [00:16:07] descent suggests, then the eight other [00:16:10] verbs are simply wasted ink. Right? [00:16:11] That's the point I'm making here. But [00:16:13] the facial breath of regulate places in [00:16:15] stark relief what the term is not [00:16:17] usually thought to include, taxation. [00:16:20] The government cannot identify any [00:16:21] statute in which the power to regulate [00:16:23] also includes the power to tax. So for [00:16:26] example, if the government decides that [00:16:28] it wants to regulate greenhouse gas [00:16:30] emissions, it can't just levy a 50% tax [00:16:33] on greenhouse gas emissions. You [00:16:35] actually have to pass that through [00:16:36] Congress. The government, the federal [00:16:38] government, the executive branch of the [00:16:40] federal government cannot just do that. [00:16:42] The question is not, says the majority, [00:16:44] as the government would have it, whether [00:16:46] tariffs can ever be a means of [00:16:47] regulating commerce. It is instead [00:16:49] whether Congress when conferring the [00:16:50] power to regulate importation gave the [00:16:52] president the power to impose tariffs at [00:16:53] his sole discretion. Correct. [00:16:57] And then Roberts goes on to take on [00:16:59] another argument made by the desensors. [00:17:01] Again, what's very odd about this case [00:17:03] is that Alo Thomas, those are my boys, [00:17:06] right? Those are the people I generally [00:17:07] agree with. I think their opinions here [00:17:09] are are pretty fatally flawed. [00:17:12] In any case, Robert says, "The [00:17:13] government raises another contextual [00:17:15] argument because regulate lies between [00:17:17] the two poles in EPA, compel on the [00:17:20] affirmative and prohibit on the [00:17:21] negative. That term naturally includes [00:17:23] the less extreme, more flexible tool of [00:17:25] tariffs." So, if the idea is that, you [00:17:27] know, the president can compel certain [00:17:30] things that can he can prohibit the [00:17:32] importation entirely. Well, tariffs are [00:17:34] less than total prohibition. Therefore, [00:17:35] you can impose tariffs. But, says [00:17:37] Roberts, tariffs are different in kind, [00:17:39] not degree. Unlike those other [00:17:42] authorities, tariffs operate directly on [00:17:44] domestic importers to raise revenue for [00:17:45] the Treasury. [00:17:47] Even though a tariff is in some sense [00:17:49] less extreme than an outright ban, for [00:17:51] example, it doesn't follow that tariffs [00:17:52] lie on the spectrum between those polls. [00:17:55] They're a branch of the taxing power and [00:17:56] they fall outside that spectrum [00:17:58] entirely. [00:17:59] In other words, for example, if I passed [00:18:01] a law saying marijuana is banned and [00:18:04] then the executive branch said, "No, no, [00:18:06] no, no, it's taxed at 50%." That is a [00:18:09] different thing it is doing. Sure, a tax [00:18:11] without a ban is less than just a ban, [00:18:13] but those are two totally different [00:18:14] things. And proclaiming that it's a [00:18:16] spectrum, so a ban also includes the [00:18:18] power to tax is not right. That's the [00:18:20] case that Roberts is making. [00:18:23] According to the government, these [00:18:24] precedents acknowledge an inherent [00:18:26] presidential power to impose tariffs [00:18:27] during armed conflict. And the argument [00:18:30] goes, Congress in TWWA, which is another [00:18:32] statute, and then in the IEPA codified [00:18:35] these precedents. But this argument [00:18:37] fails [00:18:39] at both steps. In so far as the [00:18:40] government relies on wartime cases, that [00:18:43] doesn't apply because we're not in [00:18:44] wartime with the countries we're [00:18:45] tariffing. And regardless of what they [00:18:46] mean for the president's inherent [00:18:47] wartime authority, the president has no [00:18:49] peace time authority to impose the [00:18:51] tariffs. Bottom line, says Roberts, the [00:18:54] president asserts the extraordinary [00:18:55] power to unilaterally impose tariffs of [00:18:57] unlimited amount, duration, and scope. [00:18:59] In light of the breadth, history and [00:19:00] constitutional context of that asserted [00:19:02] authority, he must identify clear [00:19:04] congressional authorization to exercise [00:19:06] it. IEPA's grants of authority to [00:19:09] regulate importation falls short. IEPA [00:19:11] contains no reference to terrorist [00:19:12] duties. The government points to no [00:19:15] statute in which Congress used the word [00:19:16] regulate to authorize taxation. And [00:19:18] until now, no president has read IEPA to [00:19:21] confer such power. We claim no special [00:19:24] competence in matters of economics or [00:19:25] foreign affairs. We claim only as we [00:19:27] must the limited role assigned to us by [00:19:28] article 3 fulfilling that role. We hold [00:19:30] the IEPA does not authorize the [00:19:32] president to impose tariffs. Okay. So [00:19:34] it's interesting to go through the [00:19:35] descents to see exactly what the [00:19:36] arguments are there. This opinion is is [00:19:40] quite varied in its level of support. So [00:19:42] for example, I said that it was a 6-3 [00:19:44] opinion, the majority opinion barring [00:19:46] these sorts of tariffs and that opinion [00:19:49] was penned by Roberts and it was [00:19:50] supported by on the conservative side [00:19:52] Gorsuch and Barrett and then the [00:19:54] liberals on the court Jackson Kagan and [00:19:56] Soor also sided with the decision. But [00:19:58] there's a part of the decision they did [00:19:59] not side with. The part of the decision [00:20:01] that the the liberals did not side with [00:20:03] is the part of the decision that [00:20:04] implicates the majority questions [00:20:06] doctrine. [00:20:08] Right? Again, the the the majority [00:20:10] questions doctrine to reiterate say the [00:20:14] majority questions doctrine says that [00:20:16] unless Congress clearly delegates a [00:20:18] specific power to the executive, the [00:20:20] executive does not have that power. If [00:20:22] it's a major power, then we have to [00:20:24] interpret it as though they didn't do it [00:20:25] unless they clearly do it. Why do you [00:20:27] think the Liberals opposed it? Now, [00:20:29] quick quiz question. Think about it. Why [00:20:30] are the liberals opposing the major [00:20:32] questions doctrine which says that [00:20:35] Congress, unless it clearly authorizes [00:20:37] movement of major power from the [00:20:39] legislature to the executive, we're [00:20:41] going to interpret it as though they [00:20:42] didn't do it. Why do liberals oppose [00:20:44] that? The answer is because they want [00:20:45] the executive branch to grab more and [00:20:47] more and more power. The weird part of [00:20:48] this opinion is not that it was [00:20:50] supported by Roberts and Gorsuch [00:20:53] and Amy Coney Barrett. The real oddity [00:20:56] of this opinion is that it is that it [00:20:58] was supported by the libs. That's the [00:21:00] part that's strange and that's I can [00:21:02] only assume that that's coming out of [00:21:03] anti-Trump animist because let's say [00:21:06] that Barack Obama had issued these [00:21:08] particular tariffs. [00:21:10] There's no doubt in my mind that Kagan [00:21:12] Sodto mayor and Jackson likely would [00:21:15] have said no no no no there's no major [00:21:18] questions doctrine. What so what they [00:21:19] try to do is they try to have the baby. [00:21:20] They try to make the they try to make [00:21:22] the claim [00:21:24] that the statute itself does not [00:21:26] authorize the tariffs. I agree. But that [00:21:30] even if the statute were if the statute [00:21:31] were unclear, they try to say that the [00:21:33] statute clearly does not authorize the [00:21:34] tariffs. Therefore, we don't even have [00:21:36] to implicate the major questions [00:21:37] doctrine. Remember, it's a two-step for [00:21:39] Roberts. He says the statute seems [00:21:42] pretty clear that it's not authorizing [00:21:43] tariffs. But if you're unclear on it, [00:21:45] then my backup is the major questions [00:21:47] doctrine, meaning there's a major power. [00:21:49] it can't be moved from legislature to [00:21:50] executive branch without some sort of [00:21:52] clear delegation of authority. [00:21:55] The liberals are saying we don't like [00:21:56] that second part. We want to constantly [00:21:58] interpret it as though Congress has shot [00:22:00] power over to the executive branch when [00:22:02] a lib is in charge. [00:22:04] So instead, because we don't like Trump, [00:22:06] what we'll do is we'll say that the IEPA [00:22:08] is so unbelievably clear that it bans [00:22:11] tariff power here. And so we don't even [00:22:13] need the major questions doctrine. And [00:22:15] in fact, the major questions doctrine is [00:22:17] an anti-administrative state bad thing. [00:22:20] So that's what the liberals are arguing. [00:22:22] Okay, so that's that's sort of argument [00:22:24] number one against that part of the [00:22:26] decision. In a second, we will get to [00:22:28] the two conservative descents. One [00:22:30] coming from Justice Kavanaaugh, which is [00:22:32] extremely lengthy, and one coming short [00:22:34] and sweet from Justice Thomas, who [00:22:35] makes, I think, a much more wide-ranging [00:22:37] claim. We'll get to that momentarily. [00:22:39] First, it is indeed the month of love, [00:22:41] flowers, and chocolate. There's a lot of [00:22:42] young people trying to find that special [00:22:44] somebody before giving up hope in [00:22:46] today's atrocious dating culture. You [00:22:47] should probably make sure you're asking [00:22:48] your date the big questions like, "Do [00:22:50] you want kids in the future?" or "What [00:22:52] are your thoughts on religion?" 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Head on over to [00:23:57] dailywire.com right now and subscribe [00:23:59] because it helps us bring you great [00:24:01] real-time content and breakdowns of [00:24:03] things that are happening in the world. [00:24:05] All righty. So to the descents. Okay, a [00:24:08] couple quick descents here. Okay, so [00:24:10] Justice Thomas, his descent is sort of [00:24:12] fascinating. He says Congress can [00:24:15] delegate the tariff power to the [00:24:17] president permanently. [00:24:19] Not only that, he says they kind of sort [00:24:21] of did. So what he says is that the [00:24:25] majority questions doctrine, the [00:24:28] non-legation doctrine is really not even [00:24:30] implicated here because congress passed [00:24:33] over the tariff power to the president [00:24:34] and can do so in broad measures and just [00:24:37] leave it there forever. So what he says [00:24:39] is the constitution's separation of [00:24:41] powers forbids congress from delegating [00:24:43] core legislative power to the president. [00:24:45] This principle known as the [00:24:46] non-delegation doctrine is rooted in the [00:24:48] constitution's legislative vesting [00:24:50] clause and due process clause. Both [00:24:52] clauses forbid Congress from delegating [00:24:54] core legislative power, which is the [00:24:56] power to make substantive rules setting [00:24:57] the conditions for deprivations of life, [00:24:59] liberty, or property. Neither clause [00:25:01] prohibits Congress from delegating other [00:25:03] kinds of power. Because the Constitution [00:25:05] assigns Congress many powers that do not [00:25:07] implicate the non-delegation doctrine, [00:25:08] Congress may delegate the exercise many [00:25:10] powers to the president. Congress has [00:25:12] done so repeatedly since the founding [00:25:13] with this court's blessing. So in his [00:25:15] opinion basically the major questions [00:25:18] doctrine is not implicated here because [00:25:20] really it really should only be applied [00:25:22] when you are talking about core [00:25:26] legislative function which is about [00:25:28] life, liberty and property. Now that has [00:25:30] some pretty radical implications as [00:25:32] justice Gorsuch discussed in in his [00:25:35] concurrence. So that is one objection. [00:25:37] The other big objection comes courtesy [00:25:39] of Justice Kavanaaugh. Justice [00:25:41] Kavanaaugh he writes a very very long [00:25:43] descent. It is joined by Thomas Andelo. [00:25:46] He basically makes a couple of claims. [00:25:49] One that Congress authorizes the [00:25:50] president to impose tariffs on imports [00:25:53] and that this happens all the time. [00:25:56] Second, that the IEPA broadly authorizes [00:25:59] the president to regulate international [00:26:01] economic transactions and that regulate [00:26:04] importation means tariff the whole [00:26:06] world. [00:26:07] He says that he concludes the [00:26:10] president's power under IEPA to regulate [00:26:12] importation encompasses tariffs [00:26:15] and he says the major questions doctrine [00:26:17] does not apply because there was a [00:26:18] delegation and because the court also [00:26:20] does not apply it with regard to foreign [00:26:22] policy power. [00:26:24] He says first the statutory text history [00:26:26] and precedent constitute a clear [00:26:28] congressional authorization for the [00:26:29] president to impose tariffs as a mean to [00:26:31] regulate importation. Second, and in the [00:26:33] alternative, the major questions [00:26:34] doctrine does not apply in the foreign [00:26:36] affairs context. [00:26:38] So in other words, tariff power is part [00:26:40] of foreign affairs. That is an argument [00:26:41] that as we would say in law school [00:26:43] proves too much. It basically then [00:26:44] suggests that the president has [00:26:45] unfettered power o over tariffs because [00:26:49] I mean if tariffs are just foreign [00:26:50] policy and the president is the [00:26:53] commander-in-chief, then he just [00:26:54] controls tariff policy forever. And that [00:26:57] sort of reads out a hefty chunk of [00:26:59] article one. [00:27:02] And then of course he says that tariffs [00:27:03] are just like embargos or quotas as we [00:27:05] discussed before. Justice Roberts says [00:27:06] no. It's a completely different thing. [00:27:08] Okay. The Gorsuch concurrence does a [00:27:09] good job of knocking down a bunch of [00:27:10] these arguments. [00:27:12] the Gorsuch concurrence. He says that [00:27:14] the major questions doctrine, unlike the [00:27:16] lib say, you need a major questions [00:27:18] doctrine because you don't want article [00:27:19] one, the legislature to keep tossing [00:27:22] power to the executive or the executive [00:27:24] to keep seizing power in the absence of [00:27:26] a clear remmit of power. [00:27:30] He says the major questions doctrine [00:27:31] teaches that to sustain a claim that [00:27:33] Congress has granted them an [00:27:34] extraordinary power, executive officials [00:27:36] must identify clear authority for that [00:27:37] power. Far from a novelty, much the same [00:27:40] principle has long applied to those who [00:27:41] claim extraordinary delegated authority, [00:27:43] whether in private or public law. And he [00:27:46] says article one grants Congress, not [00:27:48] the president, the power to impose [00:27:49] tariffs. [00:27:52] He says, and this is right, a ruling for [00:27:55] him here, the president acknowledges, [00:27:57] would afford future presidents the same [00:27:58] latitude he asserts for himself. So, as [00:28:00] I told you earlier, as is what Gorsuch [00:28:03] writes, another president might impose [00:28:04] tariffs on gas-powered automobiles to [00:28:06] respond to climate change or really on [00:28:08] virtually any imports for any emergency [00:28:10] any president might perceive. And all of [00:28:12] these emergency declarations would be [00:28:13] unreable. Just ask yourself, what [00:28:16] president would willing up that kind of [00:28:17] power? [00:28:19] And then he rips into the desensors [00:28:22] claiming that the attempt to obliterate [00:28:25] the major questions doctrine is silly. [00:28:29] He says before us the president insists [00:28:32] that he may use IEPA to equalize foreign [00:28:34] and domestic duties or not. He may use [00:28:36] it to negotiate with foreign countries [00:28:37] or not. He may set tariffs at 1% or 1 [00:28:39] million%. He may target one nation and [00:28:41] one product or every nation and every [00:28:42] product. And he may change his mind at [00:28:44] any time for nearly any reason. As I see [00:28:46] it, history dating back to near the [00:28:48] founding does not support the notion [00:28:49] that presidents have traditionally [00:28:50] enjoyed so much power. More nearly, [00:28:52] history refutes it. Then he takes on [00:28:55] Justice Thomas's descent. He says, [00:28:58] "Justice Thomas suggests that Congress [00:29:00] may hand over most of its [00:29:01] constitutionally vested powers to the [00:29:03] president completely and forever. On his [00:29:05] view, the only powers Congress may not [00:29:07] delegate are those that involve rules [00:29:08] setting the conditions for deprivations [00:29:10] of life, liberty, or property. From this [00:29:12] rule, it follows Congress may give all [00:29:14] its tariff power to the president [00:29:15] because importing is a matter of [00:29:16] privilege. As a result, this case should [00:29:19] not implicate any separation of powers [00:29:21] concerns at all. On his telling, the [00:29:23] doctrine applies only to Congress's true [00:29:24] legislative powers, which he says [00:29:26] include only those powers addressing [00:29:28] deprivation of life, liberty, or [00:29:29] property. And as it turns out, only a [00:29:31] small subset of Congress's enumerated [00:29:33] powers fit that bill. [00:29:35] Only those few powers would be [00:29:36] exclusively vested in Congress and [00:29:38] subject to review of any kind under the [00:29:40] non-delegation doctrine. So, Congress [00:29:42] could hand them off to the president [00:29:43] completely, and he has no need to worry [00:29:45] about legal challenges, even under the [00:29:47] court's non-legation doctrine, might [00:29:49] find itself permanently unable to [00:29:50] retrieve those powers. But if that's [00:29:52] true, then what do we make of the [00:29:54] Constitution's text, says Gorsuch? [00:29:57] Section one of Article 1 vests all [00:29:58] legislative powers here and granted in [00:30:00] Congress and no one else. Section 8 [00:30:02] proceeds to list those powers in detail [00:30:03] and without differentiation. Neither [00:30:06] provision speaks of some divide between [00:30:07] true legislative powers touching on [00:30:08] life, liberty, or property that are [00:30:10] permanently vested in Congress alone and [00:30:12] other kinds of powers that may be given [00:30:13] away and possibly lost forever to the [00:30:15] president. Now, again, this is one of [00:30:17] the ironies of the way this decision [00:30:19] broke down. any of the same justices who [00:30:20] just voted that the Clean Air Act, for [00:30:22] example, does not give authority to the [00:30:24] EPA to regulate greenhouse gases, which [00:30:27] is correct because you would need [00:30:28] Congress to say it, are now arguing that [00:30:30] the president has unlimited tariff [00:30:32] authority because they vaguely sort of [00:30:35] kind of said a thing that's kind of [00:30:36] nearby to the area of tariffs. [00:30:41] So then the question becomes, what is [00:30:43] next? Now, the reality, as Kavanaaugh [00:30:44] points out in his descent, is the [00:30:46] president has a bunch of other ways to [00:30:47] impose tariffs. He's got section 122 of [00:30:50] the trade act of 1974 which allows the [00:30:53] president to impose a temporary import [00:30:55] sir charge to deal with large and [00:30:56] serious balance of payments deficits to [00:30:59] 150 days. There's also section 201 of [00:31:02] the trade act of 1974 [00:31:05] that provides that if the international [00:31:07] trade commission determines that an [00:31:09] article is being imported in such [00:31:10] quantities that it causes serious injury [00:31:12] to domestic industry, the president [00:31:14] could take some action. Now that does [00:31:16] rely on the ITC. Section 301 allows the [00:31:19] president to impose duties if he [00:31:21] determines that an act, policy or [00:31:22] practice of a foreign country is [00:31:24] unjustifiable and burdens or restricts [00:31:26] US commerce. So that would be like [00:31:28] unfair trade practices. So some of these [00:31:30] tariffs could theoretically come back [00:31:32] and Kavanaaugh points out that all the [00:31:35] tariff revenue that has been collected [00:31:36] is now in limbo. How does that how who [00:31:38] who pays that right? Taxpayers paid the [00:31:40] elevated prices. [00:31:42] people who are importing to the United [00:31:43] States [00:31:45] paid those prices. Where's that money [00:31:47] go? The answer in all likelihood is that [00:31:49] the money just kind of sits that what's [00:31:52] done is done. There's no redress that is [00:31:53] available. Just going forward the [00:31:55] president can't use this sort of [00:31:56] authority. So that is the breakdown. The [00:31:58] markets are responding by not doing much [00:32:01] because they don't actually know what's [00:32:02] happening because no one knows what's [00:32:03] happening. Is Trump going to let it die? [00:32:05] What I think is a smart economic move. [00:32:07] impose targeted tariffs for specific [00:32:10] reasons as a as a weapon of leverage. [00:32:14] If Congress wants to pass big tariffs, [00:32:16] go ask Congress for it. That's what I [00:32:19] think that that they should do. Or are [00:32:21] they going to go whole hog? Will the [00:32:24] Trump administration try to reimpose all [00:32:26] of the all of these tariffs? Right. That [00:32:29] that is the big question. Well, joining [00:32:31] us on the line to discuss the legal [00:32:32] decision-making here is Ilia Shapiro. [00:32:34] the senior fellow and director of [00:32:35] constitutional studies at Manhattan [00:32:37] Institute. Ilia, thanks so much for the [00:32:38] time. Appreciate it. [00:32:40] >> Good to be with you. And uh I must say I [00:32:42] agree with everything you said and I'm [00:32:44] impressed that you digested that opinion [00:32:46] almost in in in live time on air. It's a [00:32:50] convoluted 170 pages. [00:32:54] >> It is there there's a lot there. Um I I [00:32:57] thought that actually the two most [00:32:58] radical implications were being drawn by [00:33:00] the the disscent. one drawn by Justice [00:33:03] Thomas, which honestly I I found kind of [00:33:05] shocking from Justice Thomas. Uh and and [00:33:07] the other being drawn by the dissenting [00:33:10] liberals on the court who who seem to [00:33:12] want to obliterate the major questions [00:33:13] doctrine so that Congress can delegate [00:33:14] all power to the president without any [00:33:16] question of majority questions. And they [00:33:19] could do so unclearly. They could have [00:33:20] like a vague statute and then all power [00:33:22] just suddenly resides in the executive [00:33:23] branch whenever the left of the court [00:33:25] thinks it's fine. Uh, and and honestly, [00:33:27] I'm a little puzzled by Justice Thomas' [00:33:28] descent here in which he seems to argue [00:33:30] that that Congress can simply move core [00:33:33] powers that don't implicate life, [00:33:35] liberty, or property over to the [00:33:37] executive branch. That that seems to [00:33:38] pave the way for a massive land grab by [00:33:41] the executive branch. I suppose that [00:33:44] Justice Thomas would argue, well, you [00:33:45] know, Congress needs to defend its own [00:33:47] prerogative, not our job, is article 3 [00:33:48] to do that. What's your take on it? [00:33:51] Yeah, I was surprised by that as well, [00:33:53] particularly given his opinions in [00:33:55] previous so-called non- delegation [00:33:58] cases, the idea the challenges to [00:34:00] expansive grants uh of power where he [00:34:04] has been on the side of no, Congress [00:34:05] can't pass that uh along whether in [00:34:08] high-profile cases or lowprofile cases, [00:34:10] politically salient or not. So, this [00:34:12] very much cuts against his normal grain. [00:34:15] Kavanaaugh I was less surprised about [00:34:17] because he's always been for executive [00:34:20] power working in the Bush White House uh [00:34:22] etc. and sort of makes carveouts for [00:34:24] foreign affairs and certain other [00:34:26] things. That was understandable. Very [00:34:27] kind of a technocratic ruling to which [00:34:29] Roberts uh replies that there's no [00:34:31] foreign affairs exception to major [00:34:33] questions. But you're right, Thomas is [00:34:35] is a headscratcher. And of course, Alto [00:34:37] did not uh write uh separately. He [00:34:40] joined Kavanaaugh's opinion, not [00:34:41] Thomas's. [00:34:43] >> Yeah, there a bunch of sort of weird [00:34:45] oddities to the way that the the opinion [00:34:48] voting broke down here. I pointed out a [00:34:50] little bit earlier that there is [00:34:51] something odd about Chief Justice [00:34:53] Roberts who declared that Obamacare was [00:34:55] not in fact a tax in order to declare it [00:34:57] constitutional. Now declaring that [00:34:59] tariffs are in fact attacks in order to [00:35:01] declare them unconstitutional. I you [00:35:03] know I I think that both of those things [00:35:04] are taxes and we should declare them as [00:35:06] such. So there is there's a bit of irony [00:35:08] there. Um but it it is it is a [00:35:10] fascinating breakdown. The big question [00:35:11] that the Kavanaaugh pushes forward [00:35:13] obviously is what happens to all that [00:35:15] tariff revenue that was collected. My my [00:35:17] belief is that the courts are basically [00:35:19] going to leave that where it lies. I I [00:35:20] don't think that there's going to be any [00:35:22] really great way to sort of untie that [00:35:24] that Gordian knot. The money has already [00:35:26] changed hands. It's already come in. [00:35:28] It's hard to see kind of where the [00:35:29] specific damages lie because if you are [00:35:31] an exporter to the United States, for [00:35:33] example, did you pay the tariff or did [00:35:35] the consumer pay the tariff? And if you [00:35:37] made a bunch of money off exporting to [00:35:39] the United States, as many exporters [00:35:40] actually did, were you damaged? My guess [00:35:42] is that the court is basically going to [00:35:44] throw up his hand and say, "Listen, you [00:35:45] know, what what happens from now on is [00:35:47] is the only thing that that we're ruling [00:35:48] on here." [00:35:50] >> Well, I'm not surprised the Supreme [00:35:52] Court didn't rule on that because it is [00:35:54] complicated. It wasn't briefed. It [00:35:56] wasn't presented or ruled upon by the [00:35:57] lower courts. This all now goes back to [00:36:00] the lower courts where if someone seeks [00:36:01] a refund, there might be multiple [00:36:03] mechanisms. We don't know. uh tariffs of [00:36:05] this scale have never been rejected [00:36:07] before. But whether it's in the court of [00:36:09] federal claims, federal district court, [00:36:11] some sort of trade mechanism uh through [00:36:14] uh obscure administrative offices, I'm [00:36:16] not even fully aware of because I'm not [00:36:17] a trade lawyer. Um that is, you know, [00:36:20] this is a full employment act for trade [00:36:21] lawyers still uh to figure uh all of [00:36:24] that out. And those questions may [00:36:25] eventually get to the Supreme Court, [00:36:27] although I doubt it. I think they're [00:36:28] going to be some some uh you know, very [00:36:30] technical rulings uh coming down below. [00:36:35] So the big question though Kavanaaugh I [00:36:38] think I think a majority will agree with [00:36:41] Kavanaaugh uh does agree with Kavanaaugh [00:36:43] that there are other methods of putting [00:36:45] in other kinds of tariffs u you know [00:36:49] Roberts's majority opinion is very [00:36:52] narrow in that sense basically says this [00:36:54] statute does not authorize these tariffs [00:36:56] we say nothing about anything else [00:36:58] Gorsuch was was similar about that and [00:37:00] so Scott Bent the Treasury Secretary Now [00:37:03] that we've been going on for months [00:37:04] since the opinion and it looked like [00:37:06] that means that the tariffs were going [00:37:08] down, he's been very publicly discussing [00:37:11] all of these other alternatives saying [00:37:13] the sky isn't falling. We can still [00:37:15] impose various other tariffs. So that is [00:37:17] probably less of a practical [00:37:19] consequence. But another point that [00:37:21] Kavanaaugh raises about our trade deals [00:37:23] that are tied to the current level of [00:37:26] tariffs. Will those now be need to be [00:37:28] re-examined? A lot more uncertainty [00:37:30] there, I think, than in those [00:37:32] individualized tariffs that may remain [00:37:34] or may uh uh now be put in place by the [00:37:37] administration. [00:37:40] >> Now, in my opinion, if you're the [00:37:41] Treasury Secretary, Scott Besson, I [00:37:43] think that you are overjoyed today. And [00:37:44] I think the reason that you are [00:37:45] overjoyed today is because the president [00:37:47] is not going to get lost in the weeds of [00:37:49] which particular statutes allow which [00:37:51] particular tariffs. But you know who [00:37:53] will get lost in those weeds? The [00:37:54] Treasury Secretary. and the Treasury [00:37:56] Secretary will will be able to use the [00:37:58] law as a way of arguing to the [00:38:00] president, hey, look, Mr. President, [00:38:02] there's certain stuff we can do. There's [00:38:03] certain stuff we can't do. Let's be [00:38:04] targeted in our approach so we don't run [00:38:06] up against this thing again. And, you [00:38:08] know, I think the Treasury Secretary [00:38:10] does not have the blunderbust approach [00:38:12] to tariffs that the president seems to [00:38:13] have and then withdraw and then take it [00:38:15] back. And, you know, just to be real [00:38:16] about this, the the economic growth [00:38:18] statistics that came out from last year [00:38:20] are weaker than they they really should [00:38:21] be. They're about 2% 2.2% and 2% GDP [00:38:24] growth over the course of 2025. Those [00:38:26] are not the kind of numbers that are [00:38:27] going to sustain a a midterm victory for [00:38:30] Republicans or secure a 2028 victory for [00:38:32] Republicans. And tariffs have had a [00:38:34] hampering effect on the economy. So, I I [00:38:37] happen to to be of the very strong [00:38:39] informed opinion that the Treasury [00:38:41] Secretary is not in fact a great lover [00:38:42] of tariffs from the get-go the way that [00:38:44] the president of the United States is. I [00:38:46] think he is now going to have the legal [00:38:47] tools at his disposal to be a lot more [00:38:49] targeted in how tariffs are applied as [00:38:50] opposed to President Trump going out [00:38:52] there with a poster board and declaring [00:38:54] that penguins on the Solomon Islands are [00:38:55] now going to be footing the cost for [00:38:56] America's deficits. [00:38:59] >> That's right. Those uh uh penguin suits, [00:39:02] I don't know if that's where we get our [00:39:03] tuxedos uh won't won't have those [00:39:06] tariffs on them. Uh and you know this [00:39:08] might foreshadow more broadly the [00:39:10] court's approach to checking the [00:39:12] administration when it steals bases in [00:39:15] effect. You have to follow proper [00:39:17] procedures whether that's with respect [00:39:19] to dinging Harvard for civil rights [00:39:21] violations or uh you know birthright [00:39:24] citizenship is going to come down the [00:39:25] pike and I think what the court's going [00:39:27] to do with that is not rule under on the [00:39:29] underlying constitutional merits but [00:39:31] just say the president can't do it [00:39:32] alone. So I think this ruling even [00:39:35] though it's significant economically and [00:39:37] has all this media attention uh at the [00:39:39] end of the day is is a narrow procedural [00:39:41] ruling saying you didn't follow the [00:39:43] precise steps. You have all of these [00:39:44] statutes that you can uh use uh whether [00:39:47] it's to go against uh you know Canada [00:39:49] and Western Europe or China or what [00:39:51] whatever your goals are specifically. Uh [00:39:54] go ahead and use them. You can't just [00:39:55] have a a cart blanch uh delegation, [00:39:59] which is again why it's surprising that [00:40:01] Justice Thomas, I think, would have let [00:40:03] um the president, any president, not [00:40:05] just Trump, have that kind of uh intense [00:40:08] taxation authority. [00:40:11] I one of the things here that I think is [00:40:12] fascinating again you speaking of weird [00:40:14] strange bedfellows here that as I as I [00:40:16] argued earlier if this had been Barack [00:40:18] Obama declaring worldwide tariffs in [00:40:19] order to end greenhouse gas emissions I [00:40:21] have no doubt whatsoever that Kagan [00:40:24] smeayor and Jackson would have ruled in [00:40:26] favor of that effectuation of authority. [00:40:27] They would have said the clean air act [00:40:29] and national emergency power combined [00:40:30] allow you to just do that sort of thing. [00:40:33] Uh and and I think that you know a lot [00:40:34] of conservatives who are sort of [00:40:35] catwalling today over the fact that the [00:40:38] Trump administration got backhanded by [00:40:39] the Supreme Court over over the way that [00:40:41] these tariffs were imposed. If the shoe [00:40:43] were on the other foot, they are going [00:40:44] to be very grateful that there is in [00:40:46] fact a barrier between national [00:40:47] emergency power being declared [00:40:48] unilaterally by the executive branch [00:40:51] involving massive economic burdens [00:40:54] placed on the American taxpayer and the [00:40:56] economy in the name of some unilateral [00:40:58] emergency. I I think they're going to be [00:41:00] very glad that the Supreme Court stood [00:41:01] in that breach. actually here and and [00:41:04] stopped it as it currently lies because [00:41:06] again as as I think Gorsuch properly [00:41:09] points out if the shoe were on the other [00:41:11] foot then you would be in a position [00:41:13] where a Democratic president could [00:41:14] declare a national emergency on the [00:41:16] basis of global warming and simply [00:41:18] tariff to the fullest extent of of any [00:41:21] economic law every car coming into the [00:41:23] country and basically destroy the entire [00:41:26] auto indust [00:41:30] a lot of conservatives you know this is [00:41:32] this Why again I I tend to favor [00:41:34] principle over over convenient policy [00:41:36] because it turns out that that [00:41:38] principles once established are very [00:41:39] very difficult to disestablish. [00:41:42] >> Yep. 6 years from now, President AOC may [00:41:46] uh really hate this opinion. Uh but [00:41:48] we'll all be the better for it. [00:41:50] Absolutely. [00:41:52] >> Matilia Shapiro over Manhattan [00:41:54] Institute. Ilia, thanks so much for the [00:41:56] time and thank you for the insight. So, [00:41:58] you know, as part and parcel of this, [00:42:00] first of all, let me just point out that [00:42:02] once again, you should head on over and [00:42:03] subscribe to Daily Wire so that we can, [00:42:05] you know, continue to bring you great [00:42:06] content like this. [00:42:08] >> Also, if this judicial opinion is not [00:42:11] putting you to sleep, but you actually [00:42:12] would like to go to sleep at some point, [00:42:14] then you need Helix Sleep. You just do. [00:42:16] And now, I understand waiting through [00:42:18] 170 page opinion. Maybe that's what [00:42:20] maybe you just put this podcast on at [00:42:21] night. It soothes you to sleep. 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That's [00:43:31] helixleep.com/ben. [00:43:33] So what's the economic impact of all of [00:43:35] this going to be? Well, you know, in [00:43:38] certain areas the tariffs will be [00:43:40] reimposed. [00:43:42] Brad sets at the Council on Foreign [00:43:44] Relations says that the Trump [00:43:47] administration will certainly use other [00:43:49] authorities. many of those that we we [00:43:51] have cited to reimpose some of the [00:43:52] tariffs. But there are other countries [00:43:55] like China or other countries that are [00:43:57] not hit by existing 232s. 232 is the [00:44:00] section of the law that is used for [00:44:02] national security reasons. It's it's [00:44:04] very often used for say semiconductors [00:44:06] or steel. As he points out, consider the [00:44:09] structure of Korea's trade with the [00:44:10] United States versus that of China. [00:44:12] Korea exports a ton of autos which are [00:44:14] still subject to the 232 auto tariff. [00:44:16] Its steel is still subject to the 232 [00:44:18] tariff there. its chip exports could [00:44:20] potentially be targeted by the [00:44:21] semiconductor 232. Korea doesn't get a [00:44:24] huge benefit here. Europe and Japan are [00:44:26] in somewhat similar positions. China, [00:44:28] because again, Trump cited the IEPA to [00:44:31] do this, doesn't export many products [00:44:32] covered by 232. [00:44:35] So, the first approximation of the [00:44:37] court's decision reduces the effective [00:44:39] tariff on China from 30% to just over [00:44:41] 10%, which is a pretty giant fall. Now, [00:44:43] they can raise it back up obviously, but [00:44:46] it'll be interesting to see, you know, [00:44:48] what is imposed, how quickly it is [00:44:49] imposed. On an economic level, again, [00:44:51] the president may be utterly and [00:44:52] completely wedded to the idea that [00:44:56] tariffs are great for the economy, in [00:44:58] which case he fights another battle to [00:45:00] reimpose those tariffs. I think that's [00:45:02] the reason why the market isn't spiking [00:45:03] today. The market is thinking, well, you [00:45:06] know, Trump might still do the thing. [00:45:08] Like, Trump might still go back and just [00:45:10] do it again. That's why the markets are [00:45:12] not jumping. But if it becomes clear [00:45:13] they're going to let it go, then I think [00:45:16] you will see the markets begin to climb. [00:45:18] There are a lot of businesses in the [00:45:20] United States that report or that that [00:45:21] rely on foreign imports as inputs in [00:45:23] their products and they've been holding [00:45:25] off on hiring. They've been holding off [00:45:26] on on development because they don't [00:45:29] know what's coming down the pike next. [00:45:30] Again, stability, stability, stability. [00:45:32] Hopefully, the Treasury Secretary will [00:45:34] get to the president in time to propose [00:45:36] a simple and stable regimen of tariffs [00:45:38] that are negotiated over time that make [00:45:40] a lot more sense under current available [00:45:42] legal authorities. In a moment, we're [00:45:44] going to be joined by Jason Ferman over [00:45:46] at Harvard to talk about the economic [00:45:47] impact. Professor Ferman is the Harvard [00:45:50] professor of economics. Professor, [00:45:51] thanks so much for taking the time. [00:45:52] Really appreciate it. [00:45:54] >> Great to be with you. [00:45:56] >> So, let's talk about the economic impact [00:45:58] of of all of this. There are basically [00:45:59] two big questions. One is how do these [00:46:02] fees that have already been taken in the [00:46:04] these tariffs that have already been [00:46:05] taken in. How do those get unwrapped? [00:46:06] That's a question that Kavanaaugh is [00:46:07] asking might approximate a couple [00:46:09] hundred billion dollars in in in revenue [00:46:11] that's been taken in by the government. [00:46:12] Does that get discouraged? Does it [00:46:14] basically just get eaten? That's [00:46:15] unclear. And number two is of course [00:46:18] whether the Trump administration will [00:46:19] try to find alternative methods for [00:46:21] imposing this broad spate of tariffs on [00:46:23] the entire world in what I think is is [00:46:25] pretty blunderbust fashion. What's your [00:46:27] take on both those questions? [00:46:30] Yeah, look, we still have a lot of [00:46:31] uncertainty here. The Supreme Court was [00:46:34] completely clear about this set of [00:46:36] tariffs. It's not clear whether the [00:46:38] businesses should get the money back. [00:46:40] It's not clear um what comes next. But I [00:46:43] think this does reduce our uncertainty. [00:46:45] The other legal authorities the [00:46:46] president has to use tariffs in some [00:46:48] cases are timelmited in terms of how [00:46:50] long they can apply. In other cases [00:46:53] require more of a process. So you can't [00:46:55] just wake up in the middle of the night [00:46:56] and not like the tone of voice of the [00:46:59] leader of Switzerland and put tariffs on [00:47:01] Switzerland. So less arbitrary and [00:47:04] capriciousness going forward, but the [00:47:07] broad sweep of tariffs and how many of [00:47:08] them come back um that will be up to the [00:47:11] president and potentially back in the [00:47:13] courts again. [00:47:16] So when we look at the possibility of, [00:47:18] you know, the Trump administration [00:47:20] actually being held up by the courts [00:47:22] here, it seems to me that this is [00:47:23] definitely a positive move uh for for [00:47:26] the economy. The suggestion I was making [00:47:28] earlier is that President Trump [00:47:29] basically went to his people and he [00:47:30] said, "I want to tariff everybody. Give [00:47:31] me an authority." And they said, "Okay, [00:47:33] how about the IEPA?" And he said, "I [00:47:35] don't know what that is. Go for it." and [00:47:36] they printed up a giant poster board [00:47:38] that put tariffs on Korea at some rate [00:47:40] based on a a bizarre balance of payments [00:47:44] and trade deficit or something and and [00:47:46] so it got struck down. Now presumably [00:47:49] you will actually have to have some [00:47:50] legal experts on the line who are [00:47:52] attempting to calibrate specific tariffs [00:47:55] to specific uses under sections 232, [00:47:57] 301, 122. That puts a lot more power in [00:48:01] the hands of the Treasury Secretary [00:48:02] because I don't think that the president [00:48:03] wants to continue to go to the Supreme [00:48:04] Court and get his hand slapped. It seems [00:48:06] to me that the tariffs at the very least [00:48:08] are going to are going to become [00:48:10] significantly more professional than [00:48:11] they have been. And as you say, I mean, [00:48:13] the court made pretty clear they don't [00:48:14] like that the president was just going [00:48:15] out there and saying, "I didn't like the [00:48:17] tone of voice of a particular leader. I [00:48:18] slapped a tariff on him." [00:48:21] >> Yeah, I think you're broadly right. [00:48:23] There are different secretaries, though. [00:48:25] The Commerce Department legally has a [00:48:27] lot of say here. The commerce secretary [00:48:29] Lutnik is probably more enthusiastic [00:48:32] about tariffs than the Treasury [00:48:33] Secretary Bessant is [00:48:36] >> or the president loves tariffs or or the [00:48:39] president uh you know from my [00:48:40] perspective low tariffs are better but [00:48:42] as you were saying in your intro to all [00:48:44] of this predictability [00:48:46] matters a lot. So if we are going to [00:48:49] have tariffs, have them be predictable. [00:48:51] Have them be telegraphed in advance. And [00:48:53] countries should also understand what [00:48:56] they can and can't do relative to those [00:48:58] tariffs. Again, it's it's the whim part [00:49:01] of this that I thought was corrosive [00:49:03] economically, but also politically and [00:49:06] to our legal and constitutional [00:49:08] structure as a country. [00:49:11] >> So it'll be interesting to see sort of [00:49:14] what what the markets do here on in. And [00:49:16] while I have you on the line, obviously [00:49:17] the the report just came in on Q4 GDP. [00:49:20] It came in very very weak. Uh the the [00:49:22] annual GDP under in 2025 now amounts to [00:49:25] 2.2% increase in GDP which is below the [00:49:28] GDP numbers for the the prior 3 years. [00:49:31] Obviously inflation has also been a lot [00:49:32] lower. So if you're comparing GDP to [00:49:34] inflation, you know that I believe it's [00:49:36] an inflation adjusted number. Uh but [00:49:38] nonetheless, the the growth has not been [00:49:41] the growth has not been what what people [00:49:43] would want it to be. For for those of us [00:49:45] who've been claiming the tariffs [00:49:46] actually do have an impact on the [00:49:47] economy, it seems like this may be a [00:49:48] good indicator that that is in fact the [00:49:51] case. I would hope the president takes [00:49:53] the lesson. What What is your takeaway [00:49:54] from the GDP statistics that just came [00:49:56] in? [00:49:57] >> Yeah, look, I thought GDP growth was [00:49:59] fine once you adjust for the fact that [00:50:01] the government shutdown, subtracted a [00:50:03] bunch from it. Uh but they weren't great [00:50:05] and they were way below what the [00:50:07] Treasury Secretary has been calling for. [00:50:09] He's been saying we'll get to 3% growth. [00:50:12] Um I have no doubt they would have been [00:50:14] better without the tariffs. You saw, for [00:50:15] example, consumers cut their spending on [00:50:18] durable goods in the fourth quarter. [00:50:19] That's exactly what you would expect [00:50:20] them to do when they're faced with [00:50:22] higher prices for those goods because of [00:50:25] the tariffs. And so we could have been, [00:50:28] you know, not at but closer to the [00:50:29] Treasury Secretary's 3% growth target um [00:50:32] were it not for these tariffs. And yeah, [00:50:35] I hope they keep that in mind as they [00:50:37] think about what to do next. [00:50:41] That's Jason Ferman, professor of [00:50:42] economics at Harvard. Professor, thanks [00:50:43] so much for the time. Appreciate it. [00:50:45] >> Thank you. [00:50:48] >> All righty, folks. Well, if you like [00:50:50] live updates, if you like us keeping [00:50:51] track of the news, you need to head on [00:50:52] over to Daily Wire because we do do this [00:50:54] a lot and we make sure that you are up [00:50:56] to date on everything that is happening. [00:50:58] Now, the goal of of our show is to make [00:51:00] you more informed and smarter about [00:51:02] things that are happening in the world. [00:51:03] We can only do those sorts of deep dives [00:51:05] and provide you better information that [00:51:07] make you smarter by continuing to [00:51:09] operate and that is reliant on our [00:51:11] subscribers. Head on over to [00:51:12] dailywire.com right now and become a [00:51:15] subscriber. Also again, head on over [00:51:17] there for more updates throughout the [00:51:19] day. Now, if you go back and you look at [00:51:21] the opinion, it is pretty obvious the [00:51:23] Supreme Court really did not like [00:51:24] President's approach, President Trump's [00:51:26] general approach to tariffs, that it [00:51:28] appeared arbitrary, capricious, and [00:51:32] and exorbitant for the executive branch [00:51:35] to act in this way. [00:51:37] And I don't think that they are wrong. [00:51:38] Here was President Trump not all that [00:51:40] long ago claiming that he raised [00:51:42] Switzerland's tariffs because he didn't [00:51:43] like the tone of the person he was [00:51:44] talking to on the phone. That is not a [00:51:46] power delegated by Congress to the [00:51:47] president of the United States. It just [00:51:49] isn't. [00:51:52] >> Then I got an emergency call from I [00:51:54] believe the prime minister of [00:51:56] Switzerland and she was very aggressive [00:51:59] but nice but very aggressive. Sir, we [00:52:01] are a small country. We can't do this. [00:52:03] We can't do this. We are I couldn't get [00:52:05] her off the thought. We are a small [00:52:07] country. I said you may be a small [00:52:09] country but we have a 42 billion deficit [00:52:12] with you. No. No. we are a small country [00:52:15] again and again and again I couldn't get [00:52:17] her off the phone so it was at 30%. [00:52:20] And I didn't really like the way she [00:52:22] talked to us and so instead of giving [00:52:25] her a reduction I raised it to 39%. [00:52:30] >> On a constitutional level this is not [00:52:32] the way the policym works. It isn't. And [00:52:34] forgive me, I am still a constitutional [00:52:36] conservative who likes the balance of [00:52:38] powers, the checks and balances of the [00:52:40] constit who who still remembers when the [00:52:42] legislature was not a vestigial organ of [00:52:44] government and would like that to remain [00:52:46] the case. Again, for conservatives, I [00:52:49] understand people love President Trump. [00:52:52] People support I support President Trump [00:52:54] as a general rule. With that said, [00:52:58] powers delegated to the executive branch [00:52:59] do not flow back to the legislative [00:53:01] branch very often. You're going to like [00:53:03] those limits when they are applied to a [00:53:05] president of a party to which you do not [00:53:07] belong. [00:53:09] I'm I'm finding it kind of ironic today [00:53:11] looking at all the Democrats who are [00:53:12] celebrating this as a big victory. They [00:53:14] wouldn't be celebrating this if they [00:53:15] understood it's going to apply when a [00:53:16] Democrat is in charge. Also, Hakee Jeff, [00:53:19] the House Minority Leader, put up a [00:53:21] tweet suggesting that it was a crushing [00:53:23] defeat for President Trump. [00:53:27] He said, quote, "The Supreme Court [00:53:28] decision striking down the harmful Trump [00:53:30] tariffs is a big victory for the [00:53:31] American people. [00:53:32] and another crushing defeat for the [00:53:34] wannabe king. Um, again, no one has [00:53:36] expanded executive power in my lifetime [00:53:38] like Barack Obama expanded executive [00:53:40] power and then Joe Biden expanded it [00:53:42] even further. The notion that Democrats [00:53:44] are not in love with executive power is [00:53:45] insane to me. It's one of the reasons [00:53:47] why I don't like the Democratic party [00:53:49] because they keep wanting to expand the [00:53:50] executive at the cost of the checks and [00:53:52] balances established by the founders. [00:53:55] This is why I say a decision that makes [00:53:57] very, very weird bad fellows. We'll [00:53:58] continue to bring you all the updates [00:53:59] throughout the rest of the day. The [00:54:00] president in about 40 minutes is going [00:54:02] to be doing a press conference. I assume [00:54:04] it will be lit as things usually are and [00:54:06] we'll bring you all the updates then. [00:54:08] I'm Ben Spir. You're listening to the [00:54:09] Ben Shapiro show.