Speaker 1: In federal court, the US Court of International Trade, in
Speaker 1: my view, really did their job in saying, look, the
Speaker 1: teriffs that President Trump has unilaterally put into place on
Speaker 1: worldwide and retaliatory tariffs, the so called Liberation Day tariffs,
Speaker 1: which are a minimum of ten percent on virtually every country,
Speaker 1: and the terrifts focused on the issue of FENNO placed
Speaker 1: on Canada, China, and Mexico. Those were dubbed by the
Speaker 1: court as trafficking tariffs. That those were an are unconstitutional
Speaker 1: and illegal under the law.
Speaker 2: Why is that? How did that case get determined the
Speaker 2: way that it did.
Speaker 1: Let's talk about it with a law professor who was
Speaker 1: involved in one of the two cases that were combined into.
Speaker 2: This particular case.
Speaker 1: Is a professor of law at George Mason University and
Speaker 1: the B. Kenneth Simon Chair of Constitutional Studies at the
Speaker 1: Cato Institute, the author of several books including Free to Move, Foot, Voting, Migration,
Speaker 1: and Political Freedom. Professor Elias Sohman joins us here on KOA, sir,
Speaker 1: welcome to the show.
Speaker 2: It's good to have you, Thank you for having me,
Speaker 2: Thanks for coming on.
Speaker 1: So let's break this down. I kind of gave just
Speaker 1: a brief synopsis of what was done sort of tell
Speaker 1: us why the constitutional argument and the legal argument that
Speaker 1: these tariffs don't fly was something that the.
Speaker 2: Court agreed with. Tell us about this case.
Speaker 3: Yes, the Court of International Trade unanimously ruled in our
Speaker 3: favor last week with a panel with judges appointed by
Speaker 3: both Democratic and Republican presidents, including one appointed by Trump
Speaker 3: in his first term. And the reason why is that
Speaker 3: the president was claiming a virtually limited power to impose
Speaker 3: any tariffs he wants in any amount, against any country,
Speaker 3: for any reason, at any time, for as long as
Speaker 3: he wants. And the court ruled that the International Emergency
Speaker 3: Economic Powers Act of nineteen seventy seven, which the President
Speaker 3: said gave him this power, did not actually give it
Speaker 3: to him. And they also said that if somehow the
Speaker 3: law did give him that power, it would be unconstitutional
Speaker 3: because Article went of the Constitution specifically gives the power
Speaker 3: to impose tariffs to Congress, not to the president, and
Speaker 3: an unlimited, unconstrained delegation of that power would ylate constitutional
Speaker 3: constraints on how much of its authority Congress can delegate
Speaker 3: the executive. So the law doesn't give him that power,
Speaker 3: and it would be unconstitutional if it did, and sort.
Speaker 2: Of put a pin on this point.
Speaker 1: And this is a quote that was included in the
Speaker 1: Courts decision from Federalists number forty eight, which is written
Speaker 1: by James Madison, known as the father of the Constitution. Quote,
Speaker 1: the powers properly belonging to one of the departments ought
Speaker 1: not to be directly and completely administered by either of
Speaker 1: the other departments. To me Professor Elias Soman, this basically
Speaker 1: says that, look, if the power is given to Congress
Speaker 1: to the legislative branch, they can't just go and say, hey,
Speaker 1: executive branch, do whatever you want on this issue.
Speaker 2: We got your back.
Speaker 3: Yeah, that's right. So admittedly, the Supreme Court over the
Speaker 3: last several decades has been kind of waxed on non delegation,
Speaker 3: but they have said there have to be at least
Speaker 3: some womits both liberal and conservative justice have said that.
Speaker 3: And if there are any limits at all, then this
Speaker 3: virtually total delegation of the power to tariff that Trump
Speaker 3: is claiming here DAK cannot fly because this is sort
Speaker 3: of the equivalent of Congress passing logists saying that the
Speaker 3: president can impose Harris and every feel it's like, and
Speaker 3: if anything violates the non delegation rule, then this have
Speaker 3: to It.
Speaker 2: Almost sounds like the beginning of a joke, doesn't it.
Speaker 1: A Trump judge or Reagan judge and an Obama judge
Speaker 1: walk into a US courtroom and leave unanimously striking down
Speaker 1: President Trump's sweeping tariffs. But to me, that's actually very significant.
Speaker 1: You have the strongwark conservative president of Ronald Reagan appointed
Speaker 1: one of these three judges on the panel. You have
Speaker 1: a Trump judge himself one of his appointees on the panel,
Speaker 1: and an Obama judge, so a majority appointed by Republicans.
Speaker 2: Now, you never know.
Speaker 1: The Supreme Court shows us this that whether a judge
Speaker 1: or a justice is going to be going in the
Speaker 1: direction that you might expect, they would sort of ideologically
Speaker 1: or breaking down. But to me, that should give some
Speaker 1: confidence to average Americans that, Okay, this was a reasonable
Speaker 1: decision considering the facts and the law.
Speaker 3: I think. So it's clear to sort of both conservative
Speaker 3: and liberal judges were on the same page in the panel,
Speaker 3: and the judge appointed by Trump. People familiar with the
Speaker 3: Court of International Trade actually initially suggested to us, you know,
Speaker 3: this was a bad draw for US because he had
Speaker 3: been previously an associate of Robert Leitheider, who was a
Speaker 3: major advisor to Trump in his first term, supporting very
Speaker 3: protectionist policies. So disjudge, before being on the bench, had
Speaker 3: a history of being associated with protectionist ideas himself, and
Speaker 3: yet he still recognized, as did the other two judges,
Speaker 3: that this kind of claim of virtually unlimited power had
Speaker 3: no legitimate legal basis.
Speaker 1: Again, we're talking with professor Ilia Solman, who is at
Speaker 1: the antonin Scalia School that you have a law school
Speaker 1: that is at that institution in washing outside in Virginia.
Speaker 1: Excuse me, professor, I want to ask you to bring
Speaker 1: us up just speed on where this is at, because
Speaker 1: I know that it has been appealed by the administration
Speaker 1: and that this has sort of been put on hold
Speaker 1: in terms of what the court ruled. So tell us
Speaker 1: specifically what the court decided as far as a stay
Speaker 1: or decided as far as the implications of the ruling,
Speaker 1: and then where we're at as far as the stay
Speaker 1: from additional appeals court.
Speaker 3: Yeah, So the case has been appealed to the US
Speaker 3: Court of Appeals for the Federal Circuit, which is the
Speaker 3: appublic court that has jurisdiction over the Court of International Trades.
Speaker 3: With respect to the stay, I have to get into
Speaker 3: some annoying legal gobbledy books, but in this case it
Speaker 3: is actually legal gobbledy book that had some important practical significance.
Speaker 3: So far. What the Federal Circuit has done is issued
Speaker 3: what warriors call an administrative state, which is a very
Speaker 3: short stay to give the court time to consider whether
Speaker 3: there should be a longer stay pending appeal. If the
Speaker 3: stay pending appe heel is issued as the government wants
Speaker 3: it to be, then the Court of Intranstional Trade decision
Speaker 3: will be put on hold, possibly for as long as
Speaker 3: a pellet litigation continues, which could be many months. On
Speaker 3: the other hand, if we defeat that motion for a state,
Speaker 3: then the Court of Interrational Trade ruing will go into effect,
Speaker 3: and then collection of the tariff will stop very soon,
Speaker 3: and so will the enormous damage that they're inflixing on
Speaker 3: the economy. Thousands of businesses, whytt our clients who depend
Speaker 3: on imports, millions of consumers who face higher prices, and
Speaker 3: also who are hurt by to slow down in economic
Speaker 3: growth that is going to happen if these tariffs are
Speaker 3: allowed to continue. So while the issue of a state
Speaker 3: and what justifies a sayer doesn't justify it is a
Speaker 3: highly technical legal issue, and you and I can talk
Speaker 3: about so of the factors that go into it if
Speaker 3: you want to. In this case, this legal technicality does
Speaker 3: have a big significance for many millions of people because
Speaker 3: it will determine whether they will get quick relief from
Speaker 3: the tariffs or whether relief will have to wait possibly
Speaker 3: for some months or even as much as a year
Speaker 3: or more if the case. Also, what we get to
Speaker 3: the Supreme Court.
Speaker 1: One thing I want to hit on with you, Professor Elias.
Speaker 1: So we've just got a few minutes left. But the
Speaker 1: Court in its ruling, and this is the court that
Speaker 1: deals with these trade issues. Going back, for example, to
Speaker 1: the Richard Nixon administration, he had a variation of a
Speaker 1: tariff that was sort of its own brand of an
Speaker 1: imbalance of trade that it was trying to address. It
Speaker 1: was more of a monetary policy sort of matter. But
Speaker 1: nevertheless the point is that the objective was to address
Speaker 1: a trade imbalance, which is supposedly, at least for the
Speaker 1: world wide and retaliatory tariffs. Professor, supposedly, the emergency basis
Speaker 1: justifying those Liberation Day tariffs, well, the Nixon tariffs, as
Speaker 1: I understand, it motivated Congress to pass more limits on
Speaker 1: the president's unilateral authority regarding trade, and those very limits,
Speaker 1: because they concern imbalance of trade, apply here as well.
Speaker 3: Yeah, so that decision on Nixon's tariffs was under the
Speaker 3: predecessor's statue. To the statue to the issue here, it
Speaker 3: was decided back in nineteen seventy five in the Yoshida case,
Speaker 3: which was the subject of much debate between US and
Speaker 3: our opponents in the litigation of this case, and also
Speaker 3: was carefully considered in the Court of Intransflate Trade opinion.
Speaker 3: The bottom line is it was not decided under i EPA,
Speaker 3: but under the predecessor's statue, which, as you say, was broader.
Speaker 3: In addition, even that decision, if you read the Yosheta decision,
Speaker 3: it does not say the president could just impose any
Speaker 3: terriff he wants. It rather said that the tariff power
Speaker 3: was carefully limited. It had to be constrained by the
Speaker 3: schedule of tariff set up by Congress and buy some
Speaker 3: other factors. And it's specifically said in that decision as
Speaker 3: in this more recent decision in our case than an
Speaker 3: unlimited delegation of car powers the president would be unconstitutional.
Speaker 3: So whatever you think of that case, it does not
Speaker 3: provide a precedent somehow justifying you know what Trump is
Speaker 3: trying to do.
Speaker 2: Now, unfortunately we're out of time. But one final question.
Speaker 2: You sort of touched on this before, but where do
Speaker 2: we go from here?
Speaker 3: So within the next few days we are likely to
Speaker 3: have a decision on the motion for a stake, which
Speaker 3: which whatever is resolved on that, there will also be
Speaker 3: a decision on the merits, probably within a few weeks,
Speaker 3: but maybe taking a bit longer from the Federal Circuit.
Speaker 3: At that point, whoever loses could potentially appeal to the
Speaker 3: Supreme Court, and the Supreme Court, of course, could decide
Speaker 3: to take it or not take the case, as they
Speaker 3: so choose, And it's always dangerous to predict most cases
Speaker 3: that are that are petitioned today the courts just refused.
Speaker 3: There is perhaps a hired an average state chance that
Speaker 3: they might take this case because of its significance.
Speaker 1: I think that there is in this regard, and it
Speaker 1: will be fascinating to watch Professor Ilias Sohman, Kudos to
Speaker 1: you and the Liberty Justice Center on good work here.
Speaker 1: And also Attorney's General had brought in the.
Speaker 2: FEDANL side of the case.
Speaker 1: And while I believe FEEDANEL is a massive concern, I'm
Speaker 1: not sure that unilateral TERRFF authority to the president is
Speaker 1: justified here even in that case, and I think the
Speaker 1: court ruled it right there. But nevertheless, kudos to you
Speaker 1: all for this case. I do think it was the
Speaker 1: right one to bring in in this decision. And I
Speaker 1: should note that that one case regarding these retaliatory tariffs
Speaker 1: that you were involved in involved five different businesses that
Speaker 1: were affected adversely by those teriffs. But Professor Solman of
Speaker 1: George Mason University always great to talk with you, sir,
Speaker 1: thanks so much for joining us today.
Speaker 3: Thank you for having me on once again.
Speaker 2: Professor Ilia Sohman joining us. Check out his recent book.
Speaker 1: This is especially relevant when it comes to the immigration
Speaker 1: issue right now, Free to move foot, voting, migration, and
Speaker 1: political freedom. I'm Jimmy Sangenberger in for Mandy Connell.
Speaker 2: Keep it here on KOA