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This podcast uses government documents to illuminate the workings of the American government, and offer context around the effects of government agencies in your everyday life.
Welcome to Civil Discourse. This podcast will use government documents to illuminate the workings of the American Government and offer contexts around the effects of government agencies in your everyday life. Now your hosts, Nia Rodgers, Public Affairs Librarian and Dr. John Aughenbaugh, Political Science Professor.
N. Rodgers: Hey Aughie.
J. Aughenbaugh: Good morning, Nia. How are you?
N. Rodgers: You know what? I'm excited because I'm good. How are you? Sorry. I should have answered that properly.
J. Aughenbaugh: No, that's quite right.
N. Rodgers: Raised by wolves. I can hear my mother going, I taught you, manners. You just dropped them somewhere.
J. Aughenbaugh: I'm always pleased to start a recording with you saying that you are excited.
N. Rodgers: I'm excited.
J. Aughenbaugh: I don't know what I would do if your response was, I'm not really excited, and I don't know why we're even doing this. I mean, if you said that I'll be like.
N. Rodgers: My gosh. That would be the beginning of the end of the podcast. We won't be doing anymore after that. No, I'm excited because you answered the question of or you tried to answer the question of, can he do that? Can Donald Trump set tariffs? We had an episode about that where you explained how that came to be a thing. Now we're getting another facet of that question which is can he do that Scotus edition? Because this is the Scotus asking the same question we asked, can he do that?
J. Aughenbaugh: Yeah. A number of small businesses and states challenged the legal and constitutional authority of Trump imposing his tariffs. Listeners, you're probably aware, even if you don't live in the United States. Because the United States has imposed tariffs on a large number of countries exports to the United States.
N. Rodgers: You know what? We didn't record an episode on that. We just talked about it offline. Sorry, folks. We haven't. My bad.
J. Aughenbaugh: No. But again, this is a teaching moment or a learning moment, which is you have so many conversations in your life after a while.
N. Rodgers: You don't remember which ones you recorded.
J. Aughenbaugh: The which ones you recorded, which is.
N. Rodgers: We talked about such interesting things. I said to you, Can he put in tariffs, and you were like, can he? Or has he already?
J. Aughenbaugh: I'm going to give a real quick primer on tariffs.
N. Rodgers: Can I ask you a question first?
J. Aughenbaugh: Go ahead.
N. Rodgers: Back in the day a zillion years ago, wasn't a customs house in a city by a port or in a port city the tariff place you had to go into a customs house and pay your tariff whenever you brought anything into the country by boat because that's how we didn't have planes back then. We're talking about the colonial period. When you're in a port city that was around in the colonial period, there's usually a customs house. Now they've turned into tourist things or they've turned into other governmental spots. Somebody shows up with a boat full of I don't know, spices from Spain or whatever, and they say, I got these barrels of spices for Spain, and the guy inside the customs house is, you owe the federal government. I don't know, $3 on your barrels, and the guy pays the three bucks, and then he sells his stuff.
J. Aughenbaugh: That's correct. You're a business person, you have imported into your country a good in today's economy, sometimes services from another country. Your home country will impose a tariff. Tariffs have a number of purposes, Nia. One purpose is to protect those within your country who also manufacture and trade that particular good. This is where you get the title protectionist. You're trying to protect those within your country from competition by those who grow that product or make that product from overseas. That's one purpose.
N. Rodgers: In my hypothetical, a spice example. If you brought in a spice that was also grown in America. Let's say you brought in garlic and garlic is grown in America, you may have to pay more to bring in your garlic because we're trying to protect the garlic market of local growers or home growers.
J. Aughenbaugh: A second purpose of tariffs, and this arose particularly after the Revolutionary War and the United States became a standalone country, tariffs were the primary source of revenue for the federal government.
N. Rodgers: It's taxes. I'm taxing your stuff that you're bringing in in order to raise money to roads and post offices.
J. Aughenbaugh: While also protecting the local growers or the local manufacturers. Now, tariffs are an inherently unreliable source of revenue.
N. Rodgers: Because it depends on a guy's boat arriving in time and all of his stuff not falling off into the ocean.
J. Aughenbaugh: What if the demand.
N. Rodgers: Drops.
J. Aughenbaugh: Drops.
N. Rodgers: We don't want your stinking garlic. You take your Spanish garlic away.
J. Aughenbaugh: Or if the supplier deems the tariff too burnsome, they might say, I'm going to go ahead and ship my garlic to a different market that doesn't have such a high tariff.
N. Rodgers: Screw the United States tariff. I'm going to take my garlic to Mexico where they don't tariff in at all or whatever?
J. Aughenbaugh: Yes. There was a lot of volatility. I love economist phrases. A lot of volatility with tariffs as a source of revenue. Eventually, the United States imposed an income tax. We saw this during the Civil War, and then we quickly got rid of it. But then we went ahead and imposed it again in the late 1800s. But then the Supreme Court said, under the then existing constitution, an income tax was unconstitutional. Then that led Congress and the states to ratify the 16th Amendment which imposed an income tax.
N. Rodgers: Because that you can pretty much guess how much that's going to be because you know how many workers you have, and you know generally speaking, how much they make per hour because there's a minimum wage that all businesses have to pay. You can get an idea of roughly what that's going to be each year, so you know what your budget's going to be. Because I guess budgeting before that was a nightmare.
J. Aughenbaugh: No, it was terrible.
N. Rodgers: Some years you probably had a lot of money, and then some years you probably didn't have nearly as much. Then you enter things like wars, and it drops a huge amount because nobody's trying to.
J. Aughenbaugh: Until you need to go ahead and hire a whole bunch of people to go ahead and generate activity for the war effort. But again, income taxes, though they are largely despised by those who work are much more.
N. Rodgers: I do. I despise it. I'm like, God, don't take my money.
J. Aughenbaugh: They are a much more constant source of revenue.
N. Rodgers: It's very stable, relatively speaking.
J. Aughenbaugh: Let's jump forward to Trump administration version 2.0. Trump comes into office and immediately, announces that the United States has an economic emergency. That economic emergency is the fact that the United States for decades, like since the end of World War II, has been running a trade deficit. This trade deficit is because other nations impose burdensome tariffs on US goods and services, but the United States doesn't do the same. Trump administration said, we're going to level the playing field.
N. Rodgers: We're going to charge as much as they charge us. That's called reciprocal tariff.
J. Aughenbaugh: Reciprocal tariff.
N. Rodgers: When Spain charges us 25% for our garlic, we charge them 25% for their wine or whatever.
J. Aughenbaugh: Whatever. Now, some of the tariffs, according to Trump, were to be used as leverage to encourage nation states to stop illegal activity. For instance, he said, I'm imposing a huge tariffs on Mexico, because I want to encourage the Mexican government to stop the exporting of illegal drugs. I'm going to impose these huge tariffs on China, because I want China to go ahead and actually enforce international piracy laws in regards to technology, movies, music, et cetera. But in the main, most of the tariffs were to level the trade playing field. Because Donald Trump has absolutely no faith in the World Trade Organization and says, we're going to make America great in part by protecting American businesses in the trade market.
N. Rodgers: That's his argument. The argument on the other side is tariffs or taxes, and they are paid by the people who buy the stuff because what happens is my garlic comes from Spain and my guy from Spain with his boat, although it's not on a boat anymore, but let's work with that. He shows up at I don't know, the Boston port, and he says, here's my boat full of garlic. They say, that's a $100,000 tax. My cost of garlic at the grocery store, Spanish garlic will go up because I will be the one paying that tariff.
J. Aughenbaugh: Yes.
N. Rodgers: That guy's not going to pay that tariff without raising his prices because if he had that much margin, he would have just been making a killing to start with, which he probably wasn't.
J. Aughenbaugh: That's the economics argument. Now, let's talk about the oral arguments at the Supreme Court. The challenge to the Trump tariffs that was heard by the Supreme Court this week focused on whether or not the Trump administration had the legal authority to impose these tariffs.
N. Rodgers: Are going to say it?
J. Aughenbaugh: Yes, I am. The law at the center of this dispute, the acronym is IEEPA. I say it like that. I'm so juvenile.
N. Rodgers: Because it amuses me. I'm juvenile, too, because it amuses me. IEEPA.
J. Aughenbaugh: It is the International Emergency Economic Powers Act. It was passed by Congress, signed into law by President Carter in 1977. The president can invoke it "to deal with any unusual and extraordinary threat which has its source in whole or substantial part outside of the United States, to the national security, foreign policy, or economy of the United States."
N. Rodgers: This is because the oil shortages and the oil shock in the '70s.
J. Aughenbaugh: That's right.
N. Rodgers: Which was OPEC squeezing the world and saying, we're going to control the amount of oil in the world. If anybody lived through those lines, which a lot of our younger listeners did not. But Aggie and I can tell you about sitting in the car with your parents for hours waiting to be the one to pull up to only get 10 gallons of gas at a time because that's how it worked. The United States said, we're not doing this again. We're not having this mess again. We're going to let the president have some power to do international diplomacy based on tariffing basically.
J. Aughenbaugh: Now, the way the law reads is first step, the president has to declare a national emergency with respect to the threats that I previously read aloud. Under Section 1702 of the law, when there is a national emergency, the president may 'regulate importation or exportation of property in which any foreign country or a national thereof has any interest.' This is the Trump administration's argument. He first, remember, listeners, Trump first said, there is an economic emergency in this country because the United States has been suffering an unfair international trade playing field, marketplace.
N. Rodgers: Trade deficits. Although sometimes you have deficits for political reasons that are actually pretty good.
J. Aughenbaugh: Fair enough.
N. Rodgers: That's a whole separate issue.
J. Aughenbaugh: That could be another podcast.
N. Rodgers: But Donald Trump tends to solve problems widely as opposed to narrowly. Like, he tends to say we will do all the things instead of saying we will go after these specific countries where we feel like we can, he uses a sledgehammer more often than he uses a ball pen.
J. Aughenbaugh: Or I was going to go ahead and say he uses a sledgehammer instead of using a surgical knife.
N. Rodgers: Chainsaw rather than a scalpel.
J. Aughenbaugh: Now, listeners to give you a little bit of history, three years after IEEPA was passed, President Jimmy Carter used the law to negotiate the release of the hostages in Iran.
N. Rodgers: He imposed huge tariffs on Iran.
J. Aughenbaugh: No, what he went ahead and did was he used IEEPA to suspend all legal proceedings in the United States against Iran as a requirement the Iranians made to release the hostages. This led to a Supreme Court decision Dames and Moore versus Regan.
J. Aughenbaugh: Donald Reagan was the Secretary of the Defense for the Reagan administration. Dames & Moore was a company that had done business with the previous Iranian regime and was owed millions of dollars. Carter used IEEPA to stop that lawsuit and any other lawsuits that would force the Iranian government to pay American companies for services previously provided to the previous regime, and the Supreme Court said Carter could use IEEPA to negotiate the release of the hostages.
N. Rodgers: He gave them a sweet deal, and he said, in return, what I want are my guys. The hostages.
J. Aughenbaugh: That's right. I want the American citizens back. Now, that was probably the most prominent.
N. Rodgers: I was thinking about an embargo, which is a whole different thing.
J. Aughenbaugh: That was the most prominent use. Now, again, we've already discussed Trump's executive orders in regards to tariffs. Some are trafficking tariffs.
N. Rodgers: Some are reciprocal tariffs.
J. Aughenbaugh: Reciprocal tariffs, yes.
N. Rodgers: Some are, I think, arbitrary and capricious tariffs that he just liked the numbers for because he has a whole chart. He has a whole chart of tariffs.
J. Aughenbaugh: Yes, and there's a sliding scale.
N. Rodgers: There are lots of pictures of him holding up.
J. Aughenbaugh: It's a sliding scale. Some countries got 10% tariffs, others got 200%.
N. Rodgers: Some countries are like, man, what'd we do to you? Like Canada. Canada was like, wait, what?
J. Aughenbaugh: The case at the court on Wednesday of last week, so when we record this, it will be the Wednesday of last week came from three challenges to the tariffs. You had two different groups of small businesses alleging they faced serious economic harm, which is what Nia pointed to.
N. Rodgers: They have to show standing. If they showed standing, we are harmed by these tariffs in these ways.
J. Aughenbaugh: Yes, and then a group of 12 states led by Oregon brought a lawsuit in the Court of International Trade. The Trump administration lost basically all the lower court rulings. The Supreme Court, when they took this case, went ahead and just merged them all.
N. Rodgers: We will answer the tariff question.
J. Aughenbaugh: Yes.
N. Rodgers: Not, we will answer it individually for corporations, versus tiny businesses, versus states, versus whatever. We're just going to talk to everybody all at once.
J. Aughenbaugh: By the way, the Supreme Court fast tracked this because you got to think about this, listeners, the tariffs were imposed early this year. The district court rulings, the appeals court rulings happened late spring, early summer. The Supreme Court said, we'll take it, and we're going to schedule it in early November. This is the Supreme Court sprinting.
N. Rodgers: This is Usain Bolt wearing Supreme Court Justice outfit like, dude.
J. Aughenbaugh: Now, when we get the decision.
N. Rodgers: But aren't the Supreme starting to consider things like if we wait too long, the businesses will go out of business before we can solve this question? They're starting to be aware of things like that when they're like, we should take the firings cases because we need to declare that before people lose their jobs to the point where they can't be rehired, which we have already discussed in the previous episode. There's a reason they're speeding up, I guess.
J. Aughenbaugh: Now, typically, listeners, I don't really mention the attorneys who represent the parties in front of the Supreme Court because that's just a whole bunch of names. But in this particular episode, I'm going to mention both of the main attorneys simply because they got some really difficult questions. Representing the Trump administration was the Solicitor General of the United States, John Sauer. Sauer said IEEPA is a broad grant of major power to the president to address major problems, and this is particularly the case in foreign affairs. Now, his argument on the surface has quite a bit of support in Supreme Court precedent.
N. Rodgers: Foreign affairs are always the precedent.
J. Aughenbaugh: The classic precedent, Nia, for that argument is United States versus Curtiss-Wright from 1935, where the Supreme Court said, "The president is the sole organ of US foreign policy. "
N. Rodgers: That's right. Governor Newsom from California cannot make a treaty with Mexico because he's not empowered to do that. That is the president of the United States and the president alone that can make a treaty with Mexico or what have you.
J. Aughenbaugh: Yes. But at the granular level, Sauer argues IEEPA's section, what is it? 17002, when it says, regulate importation, that plainly embraces tariffs even though the law does not specifically say tariffs That's the major, if you will, argument of the Trump administration. Tariffs are a foreign policy tool, and since the court has long held that the president is the sole organ of US foreign policy, it should be the discretion of the president which tools they use to implement US foreign policy.
N. Rodgers: Is the argument.
J. Aughenbaugh: Again, that's a very logical constitutional law type of argument.
N. Rodgers: One that the Supremes would probably have been open to.
J. Aughenbaugh: Yes. Representing the small businesses is former Solicitor General, now well known appellate lawyer, Neal Katyal. I've heard it pronounced both ways. I'm going to go with Katyal, Neal Katyal. He countered that the decision comes down to common sense. He said, "It is seemingly implausible that when Congress enacted IEEPA, they intended to give the president the power to overall the entire tariff system in the American economy in the process." He said, "In the roughly 50 years we've had this law, no president has ever tried to impose tariffs relying on IEEPA." Now, listeners, Katyal.
N. Rodgers: Which they would also be warm too because they are not big fans of reinterpreting what the consistent interpretation of something.
J. Aughenbaugh: Yes. This is known as the major questions doctrine, which the Supreme Court, and we're going to get to that in just a few moments, but nevertheless. Again, both attorneys made really good arguments.
N. Rodgers: It's a complex question, and both attorneys treated it with respect in terms of its complexity. Also, you are talking about two people who have argued before the Supreme Court before on multiple occasions and who know how to put that together. One of the saddest things in the world is when a person argues their first case before the Supreme Court because they get chewed up and spit out. It doesn't matter how good you were in your law school, it doesn't matter how long you sat on the law review of your law school, all that other stuff, doesn't matter how long you've been in practice. The first time you go before them, they eat your lunch because they need you to understand who you're dealing with. I can't remember which case it was where one of the attorneys got so flustered, he started calling them all the wrong names. Antonin Scalia started identifying his fellow justices for the person. In case you're wondering that's just a so and so, you're like, man, that is just humiliating, but these guys aren't that. They've been around the block. I've heard the name Sauer a bunch of times.
J. Aughenbaugh: Well, hey, he's been the solicitor general for the Trump administration. They've spent so much time in federal court.
N. Rodgers: That's true, that's why you would.
J. Aughenbaugh: If he had much experience before he was picked as solicitor general.
N. Rodgers: He's got it now.
J. Aughenbaugh: He's got it now, but that's one of the reasons why you get picked as solicitor general is that you do have experience appearing in appeals courts.
N. Rodgers: You can handle the pressure of that, because what people don't understand about an appeals court is the justices get to directly ask you questions. They get to say, well, Mr. Aughenbaugh, what about blah, blah, blah, point, and what about blah, blah, blah point? They get to ask you minutia questions and super-involved questions, but they also get to ask you as many as they dang well please, and you don't get to say, can I have a break? Can I go to the bathroom? Can I sit down for a minute? You stand there and you answer until they're done.
J. Aughenbaugh: You don't get to say to Chief Justice John Roberts, hey, can you give me a five-minute recess so I can look up that question online? No. Justice Sotomayor, can I go ahead and pull up ChatGPT on my phone?
N. Rodgers: That's definitely not happening.
J. Aughenbaugh: Let's look at the oral argument itself and the questions. Now, listeners, you've heard me say this before. I'm going to repeat this. You have to be careful about predicting how the Supreme Court's going to rule based on oral arguments because in many instances, the justices have already made up their mind. The questions that they are asking is not to find information to make up their undecided mind. They're asking questions to persuade their colleagues as to, one, how to vote, but two, I want you to join my thinking.
N. Rodgers: Don't forget the power of the press. They also want people to know. They're not just trying to persuade their fellow justices, they're also trying to persuade the larger swath of humanity that pays attention to oral arguments in these cases, people like Aughie, who read this stuff all the time because they're administrative law groups, and I say that with love in my heart.
J. Aughenbaugh: XOXO.
N. Rodgers: Exactly. But I think that also part of it. Two, sometimes they've been accused of showboating, which is a separate issue, but I think they're also trying to signal to the larger legal world, hey, there are these questions that need to be answered.
J. Aughenbaugh: Yes. Institutions speaking to other institutions and they do it in indirect ways. Not surprisingly, Solicitor General Sauer got a barrage of questions from the court's liberal justices. Nia, you already mentioned Justice Elena Kagan. She emphasized that Congress, not the president had the power to impose taxes and the power to regulate foreign commerce.
N. Rodgers: Yes, spelled out in the Constitution.
J. Aughenbaugh: Kagan and the other liberal justices really hammered Sauer on this point. These tariffs are attacks on economic activity, and the framers were adamant that Congress, not the president has the tax power.
N. Rodgers: Because what is the point of Congress? If you're going to have taxation, you need representation. It's the reason why we left the British Empire.
J. Aughenbaugh: That's right.
N. Rodgers: Because we were taxed without representation, and we were like, no, we need a person in Parliament, and they said no, and we said see you. It's a long held argument in this country.
J. Aughenbaugh: Sauer, unfortunately, had to respond to the fact that his boss or his boss' boss.
N. Rodgers: He keeps saying it's not a tax. It's not a tax.
J. Aughenbaugh: Sauer' boss is the Attorney General of the United States but the Attorney General's boss is Donald Trump. The problem for Sauer is his boss' boss, the President of the United States, has stated publicly a number of times that the tariffs have generated a huge amount of revenue for the federal government.
N. Rodgers: That's right. We're saving trillions, no, we're getting trillions. We're getting trillions. He's even said things like, we could give back, we could send checks to Americans. We have so much money washing around in the system.
J. Aughenbaugh: Then he said, because we've generated so much money with the tariffs, we'll be able to lower the, wait for it, tax rate for all Americans.
N. Rodgers: So this is not an insubstantial amount of money according to Donald Trump.
J. Aughenbaugh: Then Brown Jackson went ahead and really emphasized the purpose of IEEPA. She said, Congress passed this law in response to Nixon imposing 10% tariffs when he was president. So Congress tried to thread the needle by giving the president the opportunity to respond to economic activity like the OPEC nations in regards to gasoline, but to do so in a very limited way because they learned firsthand that presidents might want to use tariffs for other reasons, right?
N. Rodgers: Right. Because the controlling law before this law was the trading with the Enemy Act.
J. Aughenbaugh: That's right.
N. Rodgers: Which allowed previous presidents to punish Cold War adversaries and their proxy states.
J. Aughenbaugh: That's right. Yes.
N. Rodgers: They were like, the president's gone a little wild here. According to Ketanji Brown Jackson's view, Congress was like, wait, wait, wait. We need to slow the president's role on this. So let's put in IEEPA which takes care of the trading with the Enemy Act.
J. Aughenbaugh: Only allows presidents to act in an emergency.
N. Rodgers: Right. Limits that power. So it's not about I just don't like Cold War states, so I'm going to punish all of them. It's about, no, there has to have been a precipitating emergency.
J. Aughenbaugh: The event. Yes.
N. Rodgers: Right. Like OPEC doing its shenanigans or something like that.
J. Aughenbaugh: But where Sauer really had to be concerned, is he also got some really difficult questions from some of the conservatives. Neil Gorsuch, in particular, raised two objections to Trump claiming these powers.
N. Rodgers: I love this so much.
J. Aughenbaugh: Gorsuch Sauer, on Trump's theory, what would prohibit Congress from just abdicating all responsibility to regulate foreign commerce or for that matter, to declare war to the president, right?
N. Rodgers: Right. Under your argument, Congress could just go, oh, we're going home. Let the president do it. Which we Aughie and I have argued has been happening, but it's been happening so de facto as opposed to sure it.
J. Aughenbaugh: This is a conscious decision, right?
N. Rodgers: Right.
J. Aughenbaugh: For a strict instructionist like Neil Gorsuch.
N. Rodgers: He's not liking that.
J. Aughenbaugh: When Gorsuch reads Article 1, Section 8 of the Constitution and it says, Congress can go ahead and impose taxes, in his mind, there's only one unit of the federal government that can impose taxes. That's Congress, right?
N. Rodgers: The House of the people.
J. Aughenbaugh: People. Regulate trade with foreign nations. Again, that's in Article 1, Section 8. For Gorsuch this is a congressional power, and at some point in time, if Congress is unwilling to go ahead and protect its powers, then perhaps it should be the Supreme Court that goes ahead and says, well, we're going to protect them for you, right?
N. Rodgers: Right.
J. Aughenbaugh: But his second point, and I love this. This again is the logic of lawyers. A few minutes after, Gorsuch then just laid into him and said, he's got a problem with reading a law like IEEPA to give the president broad powers because he said it would create a one way. This is a quote, one way ratchet towards the gradual but continual accretion of power in the executive branch. He said, the problem here is once the president has such power, okay, how could Congress take it back?
N. Rodgers: Right. Because the president has veto power.
J. Aughenbaugh: Yes.
N. Rodgers: It is divided to Congress we have. They've had to have a huge number of people to override the veto.
J. Aughenbaugh: Yes, and he goes, we're just not seeing that. So he goes, again, we got to rein in these presidential administrations that read these laws so broadly that even if they wanted to take the power back, Congress couldn't do so because they wouldn't have enough votes to override a presidential veto, right?
N. Rodgers: Right.
N. Rodgers: It's looking into the future going, this is dangerous. This is slippery. We are standing in fact on a slippery slope.
J. Aughenbaugh: Slope. For Gorsuch, this is one of the rare times he actually looks at the implications. He is so much into constitutional theory. But this is the one time where he was like, okay, you can't go ahead and tell us that Congress could go ahead and pass.
N. Rodgers: Give over whatever power..
J. Aughenbaugh: Yeah. More specific piece of legislation because he was like, I ain't going to happen. But then John Roberts also probably gave Sauer some concern. This is Nia, where John Roberts, once again, okay, dusted off the major questions doctrine. He said, okay, under Trump's theory, Congress has delegated to the Office of the President broad power to include even terrors. He said, but under our major questions doctrine, which the Roberts Court used to invalidate the Biden administration's eviction moratorium during COVID, the loan forgiveness program, President Obama's rewriting of environmental protection laws, effectively rewriting. But the major questions doctrine basically says that if an agency interprets an existing law in a way that would have a major impact on the economy or the politics of the nation, then that interpretation is illegal and that the executive branch has to go back to Congress and specifically ask for that authority.
N. Rodgers: The Congress has to write clearly, I am giving the executive branch the broad power to do this thing because I know that it's going to have huge effect on the contrary.
J. Aughenbaugh: Yes. Again, Sauer was stuck with the fact that his boss' boss, the president, has talked about how these tariffs have generated huge amounts of money for the federal government and every economist, whether liberal or conservative economist has acknowledged that at some point, the tariffs are going to have a huge impact on the nation's economy.
N. Rodgers: Right. One way or another, it will be right.
J. Aughenbaugh: That has to be almost the definition of a major question.
N. Rodgers: Right. As a fast effect.
J. Aughenbaugh: Yes.
N. Rodgers: The other thing, I can I say that part of what hurts Sauer's case is that also President Trump has made these open-ended. He's imposed them on better than 100 countries a huge amount and it's been what we think of as arbitrary. There's been no, okay, we're going to do this for six months or we're going to do this for a year. That would have made Sauer's argument stronger. But the president said, basically, I'm going to do this till I feel like I'm done, which talk about a vast effect.
J. Aughenbaugh: Now, before I get to the prediction of how I think the case is going to turn out, if you think that John Sauer was the only one who had a difficult job, again, I'm going to talk about the lead counsel for the plaintiffs. The lead counsel again was Neal Katyal. Katyal he also got some really difficult questions. Because again, he's basically going ahead and saying that the people's elected, president should be reined in by the federal courts, for something that Trump made very clear when he ran for a second term.
N. Rodgers: It's true. He made clear what he wanted to do.
J. Aughenbaugh: He was going to impose tariffs, and that other nations needed to get ready because the United States was no longer going to go ahead and put up with huge trade deficits, right?
N. Rodgers: Right.
J. Aughenbaugh: Now, I think in this particular instance, the plaintiffs in this case, would have been better served to go with other legal counsel because Katyal a number of times got cues from conservative justices to adopt theories that liberals like Katyal don't like. So, for instance, Neil Gorsuch a couple of times said to Katyal, do you think Congress should have the ability to delegate their constitutional power broadly to the president? Now, Gorsuch was baiting Katyal. He was saying, don't you believe that in the non-delegation doctrine, which basically says, because the people in the supreme governing document as giving, for instance, trade with foreign nations power to Congress, Congress can only give in a very limited way that authority to the executive branch.
N. Rodgers: Right. Congress should be forced to be a check and balance.
J. Aughenbaugh: Balance on the president, right?
N. Rodgers: Right. Because otherwise, you could get gerrymandered enough in the Congress to just say, well, let the president do whatever he wants which was not the point the founders were trying totally not wanting that with the political analysis.
J. Aughenbaugh: They consciously gave foreign trade authority to Congress. But historically, Congress has just basically said to presidents, you negotiate the deals and then give us the opportunity to ratify them. Well, in this particular instance, Trump doesn't even care to get Congress's point of view on this. He's just unilaterally doing it, right?
N. Rodgers: Right.
J. Aughenbaugh: But Katyal refused to go ahead and say, what Trump is doing is problematic per the non-delegation doctrine. Likewise, when Roberts was basically saying to him, per our well established major questions, doctrine precedent, what the current president is doing is illegal and Katyal refused to go there. At one point, Alito even joked, Mr. Katyal, don't you find it ironic that you would be standing in front of us today basically making a non-delegation doctrine argument, and Katyal refused to take the bait. I really think that that could hurt the challengers during the deliberations, because some of the conservative justices are looking for ways to go ahead and rein in the president, but at some point in time, they're going to have to come to agreement on the logic of why what President Trump is doing is either illegal or unconstitutional. You understand what I'm saying?
N. Rodgers: Right. In this instance, Katyal refused to give them.
J. Aughenbaugh: Yes.
N. Rodgers: Hover for that.
J. Aughenbaugh: Yeah.
N. Rodgers: But I'm sure that's because in part, he was like, okay, but if I get a president that wants to do something like student loan forgiveness, I don't want to say, I don't want to be on the record arguing. I'm sure that's what he was trying to do, but it didn't go. He also just sounded more tentative is not the right word nobody in front of the Supreme Court sounds tentative. By the time you get there, you're not. But he didn't sound as, I think he was trying to go for that. I'm not standing out here yelling with my fists raised. I'm trying to be a cool cat. I'm trying to be a cool character. It came off as to me in the very few clips that I heard as distant.
J. Aughenbaugh: Yeah.
N. Rodgers: No particularly passionate. Maybe that's what he thought would be a winning argument would be to not be as passionate as other people have been recorded.
J. Aughenbaugh: Sometimes Nia, you and I I've talked about this off recording. Sometimes as a professional, you need to be able to read the room.
N. Rodgers: Right. You need to have some passion. You need to have something in your voice that gives you something overall too.
J. Aughenbaugh: If you're Katyal, you knew going into these oral arguments that you pretty much had the three liberal justices locked up.
N. Rodgers: Right.
J. Aughenbaugh: What you need to do is siphon off at least two of the conservative justices, right?
N. Rodgers: Right. You need Roberts, and you either need Kavanaugh, you need Coney Barrett.
J. Aughenbaugh: Barrett.
N. Rodgers: But in this instance, Gorsuch.
J. Aughenbaugh: If you can get Gorsuch, that's even better because basically, that means you're leaving Alito and Thomas off to their bad self, right?
N. Rodgers: Right. To write their dissents.
J. Aughenbaugh: Yeah.
N. Rodgers: Separate from you.
J. Aughenbaugh: Yeah, but you would have pulled in, one of the strict constructionists on the court.
N. Rodgers: Well, if you get Gorsuch, you'll get Roberts.
J. Aughenbaugh: Oh, yeah, right?
N. Rodgers: Right.
J. Aughenbaugh: You're ready for my prediction?
N. Rodgers: I am. Which way do you think it's going to go?
J. Aughenbaugh: I think the Supreme Court's going to issue a 5-4, maybe 6-3, but I think 5-4 decision that the Trump tariffs are too broad of a reading of IEEPA.
N. Rodgers: Who's going to go? Who's going to go with the three liberals? Because we know the three liberals are going to be part of your five.
J. Aughenbaugh: Yeah. I think it's going to be Chief Justice in Gorsuch, maybe Coney Barrett, but I definitely think the chief in Gorsuch and then you're going to be left with three justices, Thomas Alito and Kavanaugh. Kavanaugh, strangely enough, thought that Congress explicitly wrote vague language in IEEPA to give future presidents the ability to respond to emergencies. It was somewhat interesting. I didn't expect it from Kavanaugh. The difficulty Nia here is getting the five justices to agree to why Trump exceeded his legal and/or constitutional authority, right?
N. Rodgers: So could we end up with, like, a 3-2, like we end up with 3-3-3 or can we wind up with some horrifying?Yeah. That to me, okay, would be almost as bad as okay, in listeners, I hardly ever do this. In this instance.
N. Rodgers: Almost as bad as a 3-6 in the other direction.
J. Aughenbaugh: Well, I hardly ever go ahead and speak to my preference, because I teach constitutional law, and I want my students to understand the logic of those in the majority and the dissent. I hardly ever say, well, I really like this decision. I hardly ever do that. But in this particular instance, I have a lot of concerns, not because it's Trump in the tariffs. I have a lot of concerns because if this would get enshrined by the court, then where is the logical limit on presidential power going forward?
N. Rodgers: Right. That's my concern. It's not Donald Trump. Similarly, you and I have, I think, feelings about a lot of my concern is the check and balance. This idea that Congress is just going to keep ceding power until Congress is, in fact, just a bunch of nodding bubble heads, I'm like, no. If you don't want to do the hard work, don't run for office. Sometimes the hard work is what you have to do because that's what it's required to do to serve the people. What are you doing here? You're assuming that every president is going to be well intentioned. I'm not saying this about Donald Trump any differently than I would be saying it about Joe Biden or Obama or anybody else. Power is corrupting and it is easy to get into a place where in a presidential world, where nobody tells you no because when's the last time somebody stood in the room and said, well, I'm sorry, President Obama, but that's a terrible idea. People just don't do that with the president. It's because that person has enormous influence. Why would you hand them any more influence?
J. Aughenbaugh: Nia knows this because off recording, she has heard me mention a number of laws Congress has passed in the last 25-30 years where I've just been shocked at how much power given to the Congress and the Constitution, Congress has just handed over to the president, right?
N. Rodgers: Right. Some of that's because they have the ambition to be president, some of them. Some of it's just straight up laziness.
J. Aughenbaugh: To give listeners an example, both Nia and I, for years, were just flabbergasted with the First Patriot Act, the sheer amount of power Congress in the Patriot Act gave the office of president. It wasn't because they gave it to Bush 43. We would have been shocked if it had been Barack Obama or Clinton or Franklin Delano Roosevelt. Just the sheer amount of power and authority given to the office of president, which by the way, has already been accumulating gobs of power since the turn of the 20th century. At some point in time, members of Congress have to go ahead and say, our institution has to act as a check on the president. That's hard wired into the constitutional framework, right?
N. Rodgers: Right. If you don't like that, you have to move to another country.
N. Rodgers: Yeah.
N. Rodgers: Because that's the whole point of our country.
J. Aughenbaugh: But here's the deal, Nia, as we finish up this episode. This is one of our longer in the news episodes, but there was a lot to unpack. The difficulty for the majority is going to be, okay, so let's say it's 5-4, John Roberts, the Chief Justice is in the majority. By Supreme Court rule, if the chief is in the majority, they assign the majority opinion. I don't see Robert assigning the majority opinion to any of the three liberals, right?
N. Rodgers: Right.
J. Aughenbaugh: It's either going to be him or Gorsuch. If he assigns the opinion to himself, he will probably rely upon the major questions doctrine. The problem there is the liberals hate the major questions doctrine. So will they be willing to hold their nose and join Robert's majority opinion that basically uses the major questions doctrine.
J. Aughenbaugh: Now, if Roberts assigns it to Gorsuch, Gorsuch will focus on the framers original intent to have Congress decide taxing and foreign trade. But again, liberals hate that interpretive method. They're loose constructionist, not strict constructionists.
N. Rodgers: Yeah, Elena Kagan. But I don't know if he'll get the other two.
J. Aughenbaugh: I can't see, Sotomayor and Brown Jackson signing off on that, right?
N. Rodgers: Although they might sign off if they wrote concurrences. I think we're going to get about 57 opinions out of this case. I think everybody is going to write. I think it's unusual. Like Ketanji Brown Jackson, we know will write. She will write because she writes on everything.
J. Aughenbaugh: She might write separately, just to slam the president.
N. Rodgers: She's going to write separately. But I wonder if we won't get like seven opinions out of this. Like if we'll get, okay, we're signing on, but we're also having concurrences, and then we'll get one dissent, because the one dissent will probably be written, what do you think Alito or Thomas? They won't let it be Kavanaugh. Do you think it will be Kavanaugh?
J. Aughenbaugh: No, I think we're going to get two dissents. Thomas will write the lead dissent or he'll give it to Alito, where they basically go ahead and say, based on Supreme Court precedent, the president is the sole organ in foreign policy. We decided this in 1935. Why are we still debating this, right?
N. Rodgers: Right.
J. Aughenbaugh: Kavanaugh, however, will go ahead and focus specifically on IEEPA. Where he basically will challenge Congress, if you don't like how the current president is interpreting this law, then you guys need to go back to committee and write a new one, okay, that specifically reins in the president. Yeah.
N. Rodgers: Okay.
J. Aughenbaugh: Now.
N. Rodgers: See, we're already at three opinions.
J. Aughenbaugh: At five or six opinions. Then you're going to get one from Coney Barrett.
N. Rodgers: She's all about the letter of the law.
J. Aughenbaugh: She will channel her former boss, Justice Scalia, and go ahead and say, the words to regulate in IEEPA mean this and they don't mean to impose tariffs.
N. Rodgers: Oddly unendingly forever and ever, she will write.
J. Aughenbaugh: Yes.
N. Rodgers: We've got at least five opinions coming out of this.
J. Aughenbaugh: Oh, yeah. Which will make it really difficult for lower federal court judges to implement it. Yes. In constitutional law professors, okay, will love this case.
N. Rodgers: Because it will give and give and give.
J. Aughenbaugh: Give. Yes.
N. Rodgers: I'm not sure this isn't in the news. I think this is a regular episode we're just going to put out this one's been long, but it's also been important, and it's something that people have been asking, it is part of the subseries of can he do that, but it's also the SCOTUS is now getting into the question of can he do this? Because this is really a thing and what's good, and I'd like to say this in favor of the SCOTUS is they are starting to answer the questions they've been putting off by saying we will give you temporary answers because he's been doing a lot on the emergency docket. They've gotten a lot of temporary answers, but they've also said, we're going to take cases that are going to answer these questions in more depth or with greater legal reasoning. This will be one of those where we will see that happen. There's going to be some others as well where we're going to see them revisit things and say, can you really do this and answer some of these questions.
J. Aughenbaugh: By the way, listeners, this gives the Supreme Court the opportunity to educate the public. Because this isn't just about partisanship. This isn't I like Trump or I dislike Trump. This isn't Democrat or Republican. Listeners, I want you to go ahead and think back to what you just heard on this podcast episode. The justices are really concerned about the institutions of government. Right?
N. Rodgers: Right. The fundamentals of democracy as it is written in the United States.
J. Aughenbaugh: States. And what a law actually means when it gets executed by the executive branch, right?
N. Rodgers: Right. Going back to what are courts really for?
J. Aughenbaugh: Yes.
N. Rodgers: What is the executive branch really for? What is Congress really for? When they wrote this constitution, what did they want to happen. That's right.
N. Rodgers: Complex questions.
J. Aughenbaugh: Yeah. This is an opportunity for the Supreme Court to educate. If some of the justices can avoid writing concurring opinions, but also be willing to accept compromise, right?
N. Rodgers: Right.
J. Aughenbaugh: This is going to be big. Can Roberts go ahead and get, for instance, one or two of the liberals to sign off if he writes a majority opinion on his majority opinion? If Gorsuch gets the majority opinion, can he soften his sometimes, just blunt. No compromise language about strict constructionism. Because if he can, he could possibly pull in a Kagan. He could possibly pull in a Coney Barrett, right?
N. Rodgers: Right.
J. Aughenbaugh: But if you're not willing to do that, then as you pointed out, Nia, we have the potential here to see if not all nine justices, probably six or seven of them writing separate opinions. Right?
N. Rodgers: That being said, when will we see it, Aughie?
J. Aughenbaugh: I really get to sense.
N. Rodgers: Do you think they'll do this soon or is this going to be one of those things that they wait until June of next year to release.
J. Aughenbaugh: No, I see this court trying to get it out by late December, early January.
N. Rodgers: Really? You think that soon. Okay.
J. Aughenbaugh: Well, hey, let's just see that the court says these tariffs were illegal.
N. Rodgers: Were illegal. Oh, that's true. Then they need to stop.
J. Aughenbaugh: They need to stop, but then they have to give refunds.
N. Rodgers: Great.
J. Aughenbaugh: That's the other thing. Once these started to occur.
N. Rodgers: It's true. If you get unfired by the government, they have to find your job again.
J. Aughenbaugh: Yes, and give you back pay, etc. Likewise the president, didn't have the legal authority of all this money being collected it has to be given back because legally the United States didn't have the authority to impose the tariff. Mind you, listeners, as we are recording this episode, the federal government is shut down. There isn't anybody in the Department of the Treasury to give the money back who can handle the refund process?
N. Rodgers: We don't even think about the horrors of the refund process. Reversing all of those payments.
J. Aughenbaugh: Yeah. But right now there's nobody to give the money back. Who can give the money back because they're all laid off.
N. Rodgers: Yeah. They're all furloughed. Oh, my goodness. We're living in interesting times, Aughie. We have been cursed by an ancient Chinese ancestor and we are living in interesting times. Well, we'll come back when they've decided and how they decided and talk about the decision and what that means going forward.
J. Aughenbaugh: Yeah. But thank you for the opportunity.
N. Rodgers: We'll be back again for IEEPA and more in the future.
J. Aughenbaugh: Yeah. Thanks, Nia.
N. Rodgers: Thank you, Aughie.
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