Speaker 1: What's going on. Thank you so much for listening to
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smartphone or tablet. And again, thank you so much for
your support. As I said, I am a man of
my word. In the first hour, I said I would
be discussing this topic, and so here it is. Yesterday,
arguments were heard in the US Supreme Court about IEBA,
which everybody knows all about, at least on Twitter. I
was not aware how many experts on the International Emergency
Economic Powers Act of nineteen seventy seven existed on Twitter.
There's almost as many experts on this as there are
on deep water submersibles and the pressure required to crush them.
But anyway, the Supreme Court heard the oral arguments in
two different cases, but they were like put together. The
case is I have it here, somewhere in the stack
of stuff. Here it is Learning Resources Inc. Versus Trump, right,
and this is about Donald Trump's so called emergency tariffs. Okay.
There were three categories of tariffs at issue here. First
was the worldwide ten percent tariff. That's the first one.
The second one was the Liberation Day tariffs, aimed at
closing trade deficits in goods, so the worldwide ten percent,
then the Liberation Day tariffs, and then the third round
where the tariffs on Mexico, Canada, and China. Those were
in retaliation for fentanyl trafficking. Okay. The Solicitor General representing
the administration in this case was John Sower, and in
all of the reports that I have seen about how
the oral arguments went down, this did not go well
for him. And it kind of makes sense because, like
from a legal argument standpoint, it's a tough sell. This
is a pretty tough thing to try to defend. According
to the International Emergency Economic Powers Act, or the IEEPA,
or as I call it, the a EBA because it's
just fun to say it that way, the Court this,
according to the editors at National Review, the Court should
rule that the congressional power to tax cannot be delegated
without clear and unambiguous statutory language and identifiable limiting principles.
This is the very core of the Article one power
of the legislature, the power to tax.
Speaker 2: Right.
Speaker 1: This has been a hallmark, a bedrock understanding in our
American governing system from the very beginning. And it makes
sense because you don't want a king. Dare I say
it not to sound like a no king's lefty activist,
but yeah, you don't want the king to be in
control of all of the purse strings. AIPA has no
unambiguous statutory language and no identifiable limiting principles. It never
mentions tariffs, taxes, or any synonym for them. No prior
president has ever argued that AEPA authorizes tariffs, so this
is a brand new argument and a new use of
this law. The most that AEPA says is that the
president may regulate the importation or exportation of foreign goods
during a non wartime emergency, can regulate import and export
during non wartime emergency. Broader powers are granted during wartime,
when presidents may have more sweeping Article two authority of
their own. So, by the way, Article one of the
Constitution is the legislature right. The powers of the legislature.
Article two is the executive powers, and then Article three
is the judicial powers. Okay, so the Solicitor General John
Sower can seeded that the administration does not claim that
presidents have any inherent authority to impose tariffs in peacetime.
What they have has to come from a law. Moreover,
many other statutes do grant teriff related powers to the president,
but are much more carefully limited in doing so. Trump
used AIPA specifically so he could circumvent all of those
constraints while invoking an open ended emergency that courts would
be hesitant to review. That's precisely the sort of too
clever by half exploitation of vague at best statutory language
that the court has regularly rejected. Right, it's a what's
the When the left does something like this, they call
it it's a it's a novel legal theory. Right, This
is what it was. That's how they describe the lawsuit
against the North Carolina legislature over the redistrict maps. It's
a novel legal theory. In other words, it's made up.
It's brand new, never tested. We're going to throw this
against the wall, see if it sticks. There was broad
concern about the nearly limitless powers claimed by the administration,
and specific concern that it was invading the core control
of Congress over taxation without a specific grant delegating that
power to the president. Sour then had to acknowledge also
that under Trump's theory, a future president could declare a
global climate emergency. That's right. Roy Cooper did this as governor,
except he did it with education. Right, he issued this,
this fake emergency declaration. And what's to stop a Democrat
who gets into the White House from issuing a climate emergency.
I mean, the Guy of Earth is not happy going
to kill us. So, I mean, we have generations of
kids that have been raised on this belief, and so
they'll believe it. They'll go along with it. They'll say, yes,
it is a climate emergency. Throw a couple of people
in some hard hats and yellow vests out into the
middle of the street to block traffic during rush hour. Yeah,
I'm pretty sure that they could organize enough support, you know,
astro turfed or not. But they can organize enough of
these kinds of actions to apply pressure and get a
Democrat president to do it. Not that they would need
a whole lot of convincing because they believe it as well.
So you call for a or you declare a climate emergency,
and then you could unlock these kinds of sweeping powers
that would get no review by the courts if this
case succeeds for Trump. Justice Sonia Sotomayor suggested that such
an emergency could have been used to forgive student law owns.
Speaker 2: Right.
Speaker 1: I mean, you actually had COVID emergency going on at
the time, right, So Biden could have done that under
this theory of the law that the Trump administration is using,
Joe Biden could have used IEPA, declare an emergency for COVID,
then use IEPA and and do whatever he wants.
Speaker 2: Right.
Speaker 1: Justice Neil Gorsitch raised more fundamental questions. Could Congress simply
delegate away all of its powers, right if the court
rules in Trump's favor. Is the court then creating a
one way ratchet in which those powers can never be
clawed back As a practical matter, Right, if Congress keeps
delegating the Okay, well let'll just turn it over to you. Oh,
we'll just turn it over to you. And you just
keep turning over more and more power to the executive
branch because it happens to be your guy in charge
at the moment. Right when does it ever return to Congress?
Sours insistence that tariffs are regulations with only incidental benefits
of raising revenue. It kind of flails upon the administration'
zone claim that they will raise trillions of dollars and
help close the budget deficit. So he goes to court
and he makes the argument that the revenue being generated,
that's not really the primary function of the tariffs. No, no, no,
that's just incidental. These are regulations, that's what we're after. Like,
that's a theory.
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oh four five, seven oh eleven ten. That's also the
text line present, the text line driven by liberty Buick GMC.
And here's a very good point from an anonymous seven
oh four number. You know, if you give me your
name in a text like I can connect it. I
can end your name just first name is fine, so
I can identify you I name in the text when
I read your text on the air. But this is
a great point also that a future president could declare
guns as a health problem right and declare national emergency
over gun violence. And now that would allow a future
president to do whatever he or she wanted to start,
taking guns right or restricting their purchase, restricting AMMO, just
doing all sorts of things without the legislative branch's input.
The National Review says beyond allowing presidents to impose and
change taxes without the legislature, And that's the lynchpin here,
is that these are taxes and that has to originate
in the House. That's the constitution. The creation of an
executive slush fund of monies raised by executive FIAT gives
presidents fiscal independence from Congress, right, because the money that's
generated from the tariffs was used to pay off something
with the shutdown. I forget what, I think it was,
the Women and Infant Children's program. They took like three
hundred million out of the tariff revenue. Well, so what
the president now just gets a slush fund like that
to fund different things in government. And it doesn't matter
to me whether you think or I think the program
was worthy of funding. That's irrelevant. The point is that
some future president can decide to use the money for
something else, and it's not going to be a good program,
and it's not constitutional. The spending is supposed to originate
in the House. Fear of a self financing executive goes
back as far as England's Glorious Revolution. And was revived
as recently as the Biden administry's threat to start issuing
debt without Congress. This is the same argument I have
with these calls now to scrap the filibuster. You're not
going to be in power forever. Think about how these
tools will be used by people that you oppose, and
if you don't want to see your opponents with these powers,
then you shouldn't be advocating the implementation of the powers.
Let me go over here and get Mike on. Hello, Mike,
Welcome to the show.
Speaker 2: Hello Pee, good afternoon, Good afternoon to you. I was
telling and I think it was Isaac they picked up,
and I said, you know, it's not every day. I
guess she has to call up the PreK counter show
and agree with your analysis.
Speaker 1: You could. Well, that's not true, Mike. You could totally.
You could do that every single day. My analysis is
that good?
Speaker 2: Well this afternoon, Yes, regarding this issue, I will give
you big thumbs up, and you're right. I could do it.
I could do it every day, but that would not
be true being true to me here. Yeah, I know,
but you know it's I think what you were saying
and the way you analyze that I think was spot on.
I actually listened to the argument yesterday Live, and you're correct.
It did not go particularly well with John Sower, the
Solicitor General, who was trying to argue the administration's point
of view on this. And in fact, you will appreciate this.
It reminded me a little bit of when I call
your show on most occasions, because he was getting peppered
with some really, really tough probing questions about his arguments,
and I'm thinking to myself, you know, his should call
on the pre Caunter Show sometimes because that'll be good
practice when he gets to the Supreme Court.
Speaker 1: Yeah, that's very kind of you. But I look, I
also maintain control over the phone connection, which the Supreme
Court kind of does too. So that's your the lawyer like.
It's one of the things that drives me nuts about
the oral arguments is the amount of interruptions that they do.
I don't I'm not a fan.
Speaker 2: Well, that's that's kind of the nature of the beast.
I've not ever been to never never been up to schools.
I've been in front of the Supreme Court of North
Carolina twice. But that's what they do. They've got their
own issues that they want to talk about, and a
good advocate will stop with whatever point he is making
and listen to what they're interesting because they're the ones
that decide the decide the issue, right. The other thing
that gets the other thing about this In addition to
it being well potentially illegal in the minds of a
lot of folks, for me, it's it's also one can
scarcely think of a more socialist policy. I mean, forget
free mark gets Uh. We're wanting to invest in one
person the ability to set prices on these issues. I've
realized in some situations for emergency bay, for emergency things.
You know, the system allows that. But to do it
across the board. Uh, I hate to say it, but
in many ways that's that's socialist behavior. Team No, I don't.
Speaker 1: I don't agree with it as socialism. Tariffs, Uh is
a It's a tax. That's how I've always viewed tariffs.
They're taxes. And as a chief executive person, yeah, yeah,
well but that power. But but again, like that's and
that's the argument that's being made. It's not the concept
of a tax is not socialism per se. Right, If
your beef is that it's one person doing it. That's
not an argument uh for or again socialism, it's an
argument of consolidation of power in a in a single authority.
And like that's not socialism, that's that's more tyranny, that's
more of a monarchy or something.
Speaker 2: Yeah. Yeah, and you will, uh, you will rest assured
that I am not, even though you brought in sort
of no kings analogy that that was in this case.
You know, the Supreme Court may go against it, just
precisely for the reasons that we don't have kings that
can unilaterally, by themselves, impose such widespread policies. Yeah.
Speaker 1: Maybe, but see, here's the thing. I didn't see anybody
at the No Kings rallies making any arguments about.
Speaker 2: Tariffs, agreed. I think you know, it was more across
the board.
Speaker 1: Yeah, it's just the Yeah, it's just they don't like Trump.
They don't like Trump. I mean, that's that's all it was.
It was a branding effort by Indivisible and that's yeah.
But like to the point though, yeah, one person controlling uh,
that kind of a revenue stream is antithetical to the article.
Speaker 2: What we're the yeah, to what we're about to what
to what the American economy is supposed to be about.
Uh that you don't that you don't give one person
that type of authority. And and from my standpoint, and
you talked about this something yesterday I listened to on
and off about the results of the election. I think
that's part of what we saw on TV is there
was a lot of pushback from a lot of people
to say, you know, uh, mister President, we we hate
you were going to get But Mike, you know it's
had to hate.
Speaker 1: You know as well as I do. You know as
well as I do that people were not showing up
to vote for vy Lyles because they hate Donald Trump, right,
Like that's that was Donald Trump was not an animating
figure in a school board district.
Speaker 2: Race, all right. I disagree to this extent, Pete, because
if all you were looking at was all it in
Mecklenburg County in terms of the type of results you
had on Tuesday, that'd be one thing. But what you
saw across the board, I mean in Mississippi and in Georgia,
you had the state Senate seats that were flipping from
red to blue. You had turnout site nobody anticipated across
the board. And I think what that was, in my opinion,
was a releasing of frustration, if you will, of people,
not just Democrats, of people saying, look, this has gone
too fall. I think what to do?
Speaker 1: No, I think you're wish casting some of that. I
have no doubt that anti Donald Trump animus motivates Democrats,
no doubt about that. And the shutdown up in northern
Virginia animated a whole bunch of them up in Virginia
when some seers not a great candidate either. And sure
there's a component I would agree that that turnout because
they hate Trump absolutely, But yeah, I think a couple
all the blue states with the kinds of turnout numbers
you were talking about, that's normal. I mean, that's that's
this is always the case. Virginia's blue, Jerseys blue, Charlotte's blue.
All right, if you're listening to this show, you know
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ground News as they make the media landscape more transparent.
To suggest that tariffs are a tax on the American
public would bring the assumption that every single dollar that
is included in the tariff is then passed on to
the American public. But I don't believe that's the truth,
nor can that be positively proven. Okay, so no, it
does not require an assumption that every single dollar included
in the tariff is passed or the tax is passed
on to the American consumer. But in the court arguments yesterday,
the Solicitor General representing the Trump administration acknowledged that it's
somewhere between thirty to eighty of the tariffs are passed
on to the American consumer. So that's why, like the again,
like I said this at the very beginning, I said
two things. When Trump announced all of the tariffs, I said,
number one, like, he better be right because otherwise, you know,
the expectation from the people who are experts in this
sort of thing. You know, they're saying that this is
a tax and it's going to it's going to hurt
the American taxpayers and consumers. So I but, like with
all things Trump, I say, let's wait and see. We'll
see what happens, but he better be right. And then
the second thing I said was that, you know, maybe
I am the fish that doesn't know it's wet because
I am of an age where I grew up in
this world where uh, the experts largely all agree that
tariffs are taxing is on the consumers, and maybe that
was wrong, and so we'll see. So anyway, that's what
they I mean, that's what the Trump administration acknowledged in
the court yesterday. So let me go to Richard. Hello, Richard,
welcome to the show.
Speaker 2: Yes Hi, where I got through.
Speaker 3: It's been a long time to get here to talk
to you. What I don't hear is I keep hearing
it's a one way street with the tariffs. Whatever happened
to the idea there reciprocal tariffs. We're being texted by
all these countries as well. This is just reciprocal.
Speaker 1: That's what we were told. But then the tariffs came
out and they were the numbers were all over the place.
We were when we uh, we've got tariffs on countries
that we were running a surplus.
Speaker 3: With the whole the whole idea of the program in
long term, not short term and short term. It's going
to cost us, but long term is to bring industry
back to the country and get people more employed than
they are now by millions. That's the long term. That's
the long term.
Speaker 2: Look at this.
Speaker 3: We all know that short term, you know it's going
to be a text on us for higher courts. I agree,
but but that's not what you're look at the short
term of is You've got to look at the long term.
Speaker 1: Benefits, right well, I mean that's what they're That was
the pitch, right, that was the pitch that, yes, you know,
some of these costs are going to get passed on,
but there's going to be some benefit down the road.
That that was the pitch. But again, I've not seen that,
and I don't know what that time frame is, and
it doesn't it doesn't explain why certain companies or industries
have gotten carve outs, you know. So like I again,
like just because that's what they say, doesn't mean that
that's the actual result, that's what they predicted.
Speaker 3: What were I mean, Okay, I mean it's what you
can hold on to and believe in. But things do
take time. It took, you know, over four years to
get this country screwed up.
Speaker 2: It's only been.
Speaker 3: Nine months he's been in office to try and get
the straded.
Speaker 1: Look. I just got through saying like we will see,
we'll see what happens. And maybe, you know, the belief
that tariffs are taxes and they hurt the American consumer more,
maybe that's all wrong. But if that were the case,
then you know, I don't know, like if everybody's been
wrong all this time, I'll be the first to acknowledge
that Trump was right, but the jury's still out on this,
and in the meantime, the way they went about doing
all of this is being challenged in court because they
did it as an end run around Congress. So that's
what they're deciding now. I appreciate the PASA Richard, Thank you.
This is from Aaron Solomon at The Hill. The case
that sounds like a fight over toy imports, but it's
really about the future of presidential power. The law at
the heart of this case written in nineteen seventy seven
to let presidents act fast in actual crises, to freeze
terrorist assets, to cut off hostile regimes, etc. It was
not designed to micromanage trade policy. But Trump's team argued
that America's trade imbalance with China was itself a national emergency,
and the result, companies like the one that sued this
toy manufacturer makes educational toys and classroom supplies. They got
hammered with new tariffs that had nothing to do with
any genuine emergency. The core issue is actually pretty simple,
he says, can the word emergency be stretched so far
that it covers anything that a president feels like tackling
without Congress, because if the answer is yes, that's not
just a trade story. That's a blueprint for a permanent
emergency presidency.
Speaker 2: Right.
Speaker 1: Congress wanted to reign in executive excesses after the Vietnam
War and after Watergate. That's when this law was passed.
Why it was passed. The idea was to keep presidents
from declaring emergencies that never actually end. And over time
those guardrails have eroded. There are right now more than
forty official national emergencies still on the books. Most of
them are many years old. They quietly get renewed every
twelve months, like streaming services that nobody remembers ordering. So
if you allow this precedent to stand, any president could
call an economic problem an national security threat and start
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Aaron Solomon at The Hill dot com. Any president could
call an economic problem a national security threat and then
start rewriting the rules, imposing tariffs, freezing investments, even restricting
technology or energy flows without a single vote in Congress.
Once the precedent exists, it becomes the playbook. Now, yes,
Congress could step in. The Constitution gives it the executive power,
or sorry, gives it the exclusive power to regulate commerce
with foreign nations and to levy tariffs. That's reserved for Congress.
But for decades, lawmakers have handed that power away, preferring
the convenience of broad statutes that let presidents take the
heat while they issue press releases. This is something that
I don't believe the founding fathers contemplated. They set up
the system with the belief that these lawmakers in power
would protect their own powers from encroachment from the other branches.
And at the federal level and the state level and
at the local level, same dynamic right that these elected
lawmakers would try to protect their power. And so they
basically pitted them against each other. And it's brilliant. What
I think they did not contemplate was TikTok, because how
could they really right? I don't think they contemplated the
idea that people would would run for the office draw
the paycheck, become you know, masters of stock trading. I
think it's a it's part of the orientation classes. They
get all of the the key tips on how to
make good stock trades. That's how they all get so
rich on their their trades. And so anyway that they
would go to Congress, draw the benefits, draw the salaries,
and just be more interested in putting out viral videos
of you know, a one minute SmackDown against some bureaucrat
they drag in front of their hearings. Right, So, I
think he's exactly right about this, is that they've offloaded
so many of the of their own responsibilities to the
executive branch. They've done it willingly because they don't want
to take the heat, they don't want to be responsible,
and it's easier just to all the paycheck. How much
authority can Congress delegate before it stops being a coequal branch,
though the Court has been hinting at this moment for years.
In West Virginia versus the EPA, the Justices told the
federal agencies that they cannot make major policy moves without
clear authorization from Congress. In low per Bright versus Raymondo,
they killed the old Chevron rule, which I celebrated that
because that rule told judges that they had to defer
to the interpretations of the agencies, and so if the
law wasn't clear, then the agency would say what the
law is and the judge had to differ. It's called
the Chevron deference based on a case that Chevron Oil
Company had sued over, and that went away because that
is unconstitutional, and it was from the very beginning when
the Court initially made that stupid ruling. That's how you
ended up with Obamacare having I don't even remember. It
was like thousands of uses of the phrase the Secretary
of Health shall do these rules like all over the
Obamacare law. The Congress just like gave a free hand
to the Department of uh of Health, the secretary of
the Secretary of Health and Human Services, right, and that's inappropriate.
Congress rights the law. You don't just offload all of
that to the executive branch. And so Chevron deference was
killed by this court, as it should have been. That
was the right decision. This case takes that same logic
and points it at the Oval Office itself. Now, if
the Court means what it said about restoring constitutional bounces.
This is the natural next step. And so by doing
what he did with the tariffs, forcing the lawsuit and
then losing the case at the Supreme Court, Donald Trump
might actually be reconstructing the guardrails and telling Congress forcing Congress,
this is your job. You're supposed to be doing this stuff. Now.
Whether Congress will actually do anything, that's uh oh hell,
that's a different tail. If they uphold this sweeping emergency
tariff power, any future president could come along and slap
tariffs on let's say, gas powered cars, right because there's
a climate emergency, and so we're going to tariff all
of the gas guzzling cars. And that's not speculation. That
is the conclusion of the Trump administration. His own lawyer
during the oral arguments, that's what he said, that ruling
in favor of the administration would open the door to
precisely that. We'll see what the Supreme Court does. All right,
that'll do it for this episode. Thank you so much
for listening. I could not do the show without your
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