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<v Speaker 1>In federal court, the US Court of International Trade, in

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<v Speaker 1>my view, really did their job in saying, look, the

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<v Speaker 1>teriffs that President Trump has unilaterally put into place on

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<v Speaker 1>worldwide and retaliatory tariffs, the so called Liberation Day tariffs,

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<v Speaker 1>which are a minimum of ten percent on virtually every country,

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<v Speaker 1>and the terrifts focused on the issue of FENNO placed

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<v Speaker 1>on Canada, China, and Mexico. Those were dubbed by the

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<v Speaker 1>court as trafficking tariffs. That those were an are unconstitutional

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<v Speaker 1>and illegal under the law.

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<v Speaker 2>Why is that? How did that case get determined the

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<v Speaker 2>way that it did.

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<v Speaker 1>Let's talk about it with a law professor who was

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<v Speaker 1>involved in one of the two cases that were combined into.

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<v Speaker 2>This particular case.

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<v Speaker 1>Is a professor of law at George Mason University and

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<v Speaker 1>the B. Kenneth Simon Chair of Constitutional Studies at the

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<v Speaker 1>Cato Institute, the author of several books including Free to Move, Foot, Voting, Migration,

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<v Speaker 1>and Political Freedom. Professor Elias Sohman joins us here on KOA, sir,

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<v Speaker 1>welcome to the show.

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<v Speaker 2>It's good to have you, Thank you for having me,

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<v Speaker 2>Thanks for coming on.

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<v Speaker 1>So let's break this down. I kind of gave just

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<v Speaker 1>a brief synopsis of what was done sort of tell

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<v Speaker 1>us why the constitutional argument and the legal argument that

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<v Speaker 1>these tariffs don't fly was something that the.

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<v Speaker 2>Court agreed with. Tell us about this case.

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<v Speaker 3>Yes, the Court of International Trade unanimously ruled in our

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<v Speaker 3>favor last week with a panel with judges appointed by

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<v Speaker 3>both Democratic and Republican presidents, including one appointed by Trump

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<v Speaker 3>in his first term. And the reason why is that

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<v Speaker 3>the president was claiming a virtually limited power to impose

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<v Speaker 3>any tariffs he wants in any amount, against any country,

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<v Speaker 3>for any reason, at any time, for as long as

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<v Speaker 3>he wants. And the court ruled that the International Emergency

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<v Speaker 3>Economic Powers Act of nineteen seventy seven, which the President

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<v Speaker 3>said gave him this power, did not actually give it

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<v Speaker 3>to him. And they also said that if somehow the

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<v Speaker 3>law did give him that power, it would be unconstitutional

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<v Speaker 3>because Article went of the Constitution specifically gives the power

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<v Speaker 3>to impose tariffs to Congress, not to the president, and

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<v Speaker 3>an unlimited, unconstrained delegation of that power would ylate constitutional

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<v Speaker 3>constraints on how much of its authority Congress can delegate

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<v Speaker 3>the executive. So the law doesn't give him that power,

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<v Speaker 3>and it would be unconstitutional if it did, and sort.

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<v Speaker 2>Of put a pin on this point.

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<v Speaker 1>And this is a quote that was included in the

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<v Speaker 1>Courts decision from Federalists number forty eight, which is written

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<v Speaker 1>by James Madison, known as the father of the Constitution. Quote,

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<v Speaker 1>the powers properly belonging to one of the departments ought

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<v Speaker 1>not to be directly and completely administered by either of

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<v Speaker 1>the other departments. To me Professor Elias Soman, this basically

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<v Speaker 1>says that, look, if the power is given to Congress

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<v Speaker 1>to the legislative branch, they can't just go and say, hey,

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<v Speaker 1>executive branch, do whatever you want on this issue.

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<v Speaker 2>We got your back.

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<v Speaker 3>Yeah, that's right. So admittedly, the Supreme Court over the

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<v Speaker 3>last several decades has been kind of waxed on non delegation,

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<v Speaker 3>but they have said there have to be at least

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<v Speaker 3>some womits both liberal and conservative justice have said that.

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<v Speaker 3>And if there are any limits at all, then this

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<v Speaker 3>virtually total delegation of the power to tariff that Trump

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<v Speaker 3>is claiming here DAK cannot fly because this is sort

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<v Speaker 3>of the equivalent of Congress passing logists saying that the

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<v Speaker 3>president can impose Harris and every feel it's like, and

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<v Speaker 3>if anything violates the non delegation rule, then this have

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<v Speaker 3>to It.

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<v Speaker 2>Almost sounds like the beginning of a joke, doesn't it.

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<v Speaker 1>A Trump judge or Reagan judge and an Obama judge

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<v Speaker 1>walk into a US courtroom and leave unanimously striking down

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<v Speaker 1>President Trump's sweeping tariffs. But to me, that's actually very significant.

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<v Speaker 1>You have the strongwark conservative president of Ronald Reagan appointed

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<v Speaker 1>one of these three judges on the panel. You have

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<v Speaker 1>a Trump judge himself one of his appointees on the panel,

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<v Speaker 1>and an Obama judge, so a majority appointed by Republicans.

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<v Speaker 2>Now, you never know.

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<v Speaker 1>The Supreme Court shows us this that whether a judge

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<v Speaker 1>or a justice is going to be going in the

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<v Speaker 1>direction that you might expect, they would sort of ideologically

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<v Speaker 1>or breaking down. But to me, that should give some

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<v Speaker 1>confidence to average Americans that, Okay, this was a reasonable

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<v Speaker 1>decision considering the facts and the law.

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<v Speaker 3>I think. So it's clear to sort of both conservative

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<v Speaker 3>and liberal judges were on the same page in the panel,

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<v Speaker 3>and the judge appointed by Trump. People familiar with the

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<v Speaker 3>Court of International Trade actually initially suggested to us, you know,

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<v Speaker 3>this was a bad draw for US because he had

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<v Speaker 3>been previously an associate of Robert Leitheider, who was a

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<v Speaker 3>major advisor to Trump in his first term, supporting very

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<v Speaker 3>protectionist policies. So disjudge, before being on the bench, had

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<v Speaker 3>a history of being associated with protectionist ideas himself, and

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<v Speaker 3>yet he still recognized, as did the other two judges,

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<v Speaker 3>that this kind of claim of virtually unlimited power had

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<v Speaker 3>no legitimate legal basis.

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<v Speaker 1>Again, we're talking with professor Ilia Solman, who is at

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<v Speaker 1>the antonin Scalia School that you have a law school

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<v Speaker 1>that is at that institution in washing outside in Virginia.

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<v Speaker 1>Excuse me, professor, I want to ask you to bring

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<v Speaker 1>us up just speed on where this is at, because

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<v Speaker 1>I know that it has been appealed by the administration

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<v Speaker 1>and that this has sort of been put on hold

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<v Speaker 1>in terms of what the court ruled. So tell us

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<v Speaker 1>specifically what the court decided as far as a stay

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<v Speaker 1>or decided as far as the implications of the ruling,

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<v Speaker 1>and then where we're at as far as the stay

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<v Speaker 1>from additional appeals court.

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<v Speaker 3>Yeah, So the case has been appealed to the US

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<v Speaker 3>Court of Appeals for the Federal Circuit, which is the

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<v Speaker 3>appublic court that has jurisdiction over the Court of International Trades.

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<v Speaker 3>With respect to the stay, I have to get into

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<v Speaker 3>some annoying legal gobbledy books, but in this case it

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<v Speaker 3>is actually legal gobbledy book that had some important practical significance.

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<v Speaker 3>So far. What the Federal Circuit has done is issued

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<v Speaker 3>what warriors call an administrative state, which is a very

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<v Speaker 3>short stay to give the court time to consider whether

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<v Speaker 3>there should be a longer stay pending appeal. If the

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<v Speaker 3>stay pending appe heel is issued as the government wants

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<v Speaker 3>it to be, then the Court of Intranstional Trade decision

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<v Speaker 3>will be put on hold, possibly for as long as

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<v Speaker 3>a pellet litigation continues, which could be many months. On

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<v Speaker 3>the other hand, if we defeat that motion for a state,

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<v Speaker 3>then the Court of Interrational Trade ruing will go into effect,

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<v Speaker 3>and then collection of the tariff will stop very soon,

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<v Speaker 3>and so will the enormous damage that they're inflixing on

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<v Speaker 3>the economy. Thousands of businesses, whytt our clients who depend

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<v Speaker 3>on imports, millions of consumers who face higher prices, and

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<v Speaker 3>also who are hurt by to slow down in economic

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<v Speaker 3>growth that is going to happen if these tariffs are

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<v Speaker 3>allowed to continue. So while the issue of a state

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<v Speaker 3>and what justifies a sayer doesn't justify it is a

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<v Speaker 3>highly technical legal issue, and you and I can talk

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<v Speaker 3>about so of the factors that go into it if

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<v Speaker 3>you want to. In this case, this legal technicality does

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<v Speaker 3>have a big significance for many millions of people because

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<v Speaker 3>it will determine whether they will get quick relief from

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<v Speaker 3>the tariffs or whether relief will have to wait possibly

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<v Speaker 3>for some months or even as much as a year

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<v Speaker 3>or more if the case. Also, what we get to

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<v Speaker 3>the Supreme Court.

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<v Speaker 1>One thing I want to hit on with you, Professor Elias.

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<v Speaker 1>So we've just got a few minutes left. But the

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<v Speaker 1>Court in its ruling, and this is the court that

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<v Speaker 1>deals with these trade issues. Going back, for example, to

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<v Speaker 1>the Richard Nixon administration, he had a variation of a

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<v Speaker 1>tariff that was sort of its own brand of an

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<v Speaker 1>imbalance of trade that it was trying to address. It

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<v Speaker 1>was more of a monetary policy sort of matter. But

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<v Speaker 1>nevertheless the point is that the objective was to address

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<v Speaker 1>a trade imbalance, which is supposedly, at least for the

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<v Speaker 1>world wide and retaliatory tariffs. Professor, supposedly, the emergency basis

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<v Speaker 1>justifying those Liberation Day tariffs, well, the Nixon tariffs, as

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<v Speaker 1>I understand, it motivated Congress to pass more limits on

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<v Speaker 1>the president's unilateral authority regarding trade, and those very limits,

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<v Speaker 1>because they concern imbalance of trade, apply here as well.

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<v Speaker 3>Yeah, so that decision on Nixon's tariffs was under the

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<v Speaker 3>predecessor's statue. To the statue to the issue here, it

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<v Speaker 3>was decided back in nineteen seventy five in the Yoshida case,

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<v Speaker 3>which was the subject of much debate between US and

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<v Speaker 3>our opponents in the litigation of this case, and also

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<v Speaker 3>was carefully considered in the Court of Intransflate Trade opinion.

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<v Speaker 3>The bottom line is it was not decided under i EPA,

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<v Speaker 3>but under the predecessor's statue, which, as you say, was broader.

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<v Speaker 3>In addition, even that decision, if you read the Yosheta decision,

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<v Speaker 3>it does not say the president could just impose any

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<v Speaker 3>terriff he wants. It rather said that the tariff power

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<v Speaker 3>was carefully limited. It had to be constrained by the

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<v Speaker 3>schedule of tariff set up by Congress and buy some

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<v Speaker 3>other factors. And it's specifically said in that decision as

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<v Speaker 3>in this more recent decision in our case than an

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<v Speaker 3>unlimited delegation of car powers the president would be unconstitutional.

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<v Speaker 3>So whatever you think of that case, it does not

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<v Speaker 3>provide a precedent somehow justifying you know what Trump is

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<v Speaker 3>trying to do.

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<v Speaker 2>Now, unfortunately we're out of time. But one final question.

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<v Speaker 2>You sort of touched on this before, but where do

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<v Speaker 2>we go from here?

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<v Speaker 3>So within the next few days we are likely to

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<v Speaker 3>have a decision on the motion for a stake, which

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<v Speaker 3>which whatever is resolved on that, there will also be

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<v Speaker 3>a decision on the merits, probably within a few weeks,

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<v Speaker 3>but maybe taking a bit longer from the Federal Circuit.

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<v Speaker 3>At that point, whoever loses could potentially appeal to the

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<v Speaker 3>Supreme Court, and the Supreme Court, of course, could decide

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<v Speaker 3>to take it or not take the case, as they

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<v Speaker 3>so choose, And it's always dangerous to predict most cases

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<v Speaker 3>that are that are petitioned today the courts just refused.

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<v Speaker 3>There is perhaps a hired an average state chance that

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<v Speaker 3>they might take this case because of its significance.

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<v Speaker 1>I think that there is in this regard, and it

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<v Speaker 1>will be fascinating to watch Professor Ilias Sohman, Kudos to

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<v Speaker 1>you and the Liberty Justice Center on good work here.

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<v Speaker 1>And also Attorney's General had brought in the.

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<v Speaker 2>FEDANL side of the case.

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<v Speaker 1>And while I believe FEEDANEL is a massive concern, I'm

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<v Speaker 1>not sure that unilateral TERRFF authority to the president is

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<v Speaker 1>justified here even in that case, and I think the

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<v Speaker 1>court ruled it right there. But nevertheless, kudos to you

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<v Speaker 1>all for this case. I do think it was the

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<v Speaker 1>right one to bring in in this decision. And I

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<v Speaker 1>should note that that one case regarding these retaliatory tariffs

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<v Speaker 1>that you were involved in involved five different businesses that

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<v Speaker 1>were affected adversely by those teriffs. But Professor Solman of

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<v Speaker 1>George Mason University always great to talk with you, sir,

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<v Speaker 1>thanks so much for joining us today.

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<v Speaker 3>Thank you for having me on once again.

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<v Speaker 2>Professor Ilia Sohman joining us. Check out his recent book.

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<v Speaker 1>This is especially relevant when it comes to the immigration

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<v Speaker 1>issue right now, Free to move foot, voting, migration, and

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<v Speaker 1>political freedom. I'm Jimmy Sangenberger in for Mandy Connell.

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<v Speaker 2>Keep it here on KOA