Greg Sargent: This is The Daily Blast from The New Republic, produced and presented by the DSR network. I’m your host, Greg Sargent.
Ilya Somin: Thank you for having me.
Somin: We’re definitely very happy the way the ruling came out, and the court recognized the validity of our pretty strong arguments against this egregious abuse of power by the president.
Somin: Yes. What the court basically said is that under the administration’s interpretation of IEEPA, the administration would basically have virtually unlimited power to impose any tariffs at once against any nation at any time for any reason. And that kind of unlimited power is the only possible way to justify the “Liberation Day” tariffs. And the court ruled since such unlimited power is not available under the statute, and would be unconstitutional if it was available, that therefore these “Liberation Day” tariffs are illegal and have to be struck down. It also ruled in a different set of IEEPA tariffs, which were brought forth in a companion case filed by the state of Oregon and 11 other states related to fentanyl; we can talk about that later if you wish.
Somin: So first, president has to declare a national emergency, but it also has to be an emergency that is related to an extraordinary and unusual threat to the American economy or to our national security emanating from abroad. And in these two cases, it is pretty obvious that there is no such threat from trade deficits. There is nothing extraordinary or unusual about them; they happen all the time, and they’re not even a threat. The court didn’t get into the details of that, but simply said there is no way to justify the “Liberation Day” tariffs under the statute except to give the president essentially unlimited power to declare anything he wants to an emergency and an extraordinary and unusual threat. The analysis on the fentanyl-related tariffs was a little bit more complicated.
Somin: An administrative stay is a fairly standard procedure, which briefly delays the implementation of a lower court ruling while the two parties—or in this case, more than two parties—litigate the question of whether there should be a longer stay put in place that would continue until the case is fully adjudicated in the appellate court. We, of course, are opposing the imposition of a longer stay, and there should be a ruling on that, we anticipate, in the next couple of weeks.
Karoline Leavitt (audio voiceover): There is a troubling and dangerous trend of unelected judges inserting themselves into the presidential decision-making process. America cannot function if President Trump, or any other president for that matter, has their sensitive diplomatic or trade negotiations railroaded by activist judges. President Trump is in the process of rebalancing America’s trading agreements with the entire world, bringing tens of billions of dollars in tariff revenues to our country, and finally ending the United States of America from being ripped off. These judges are threatening to undermine the credibility of the U.S. on the world stage.
Somin: I think the only attempted coup here is, as the courts have ruled, the president’s attempt to usurp a power that belongs to Congress on the basis of a bogus emergency and applying a statute that doesn’t even mention the word “tariffs.” Our forbearers politically, not genetically—the British in the seventeenth century— overthrew King Charles I because he tried to impose taxes without the authorization of the legislature. Trump is now trying to act like a monarch himself, imposing what would be a massive $2 trillion tax increase on Americans without any meaningful congressional authorization.
Somin: I think it’s clear that what we have in this panel is three judges appointed by presidents of both parties, two of them by Republican presidents: one by Reagan, one Judge Reif, whom you mentioned, appointed by Trump. If these people are “globalists,” then I’m not sure what that term means unless it’s used to refer to anybody who rules against Trump on anything. Did Trump appoint a “globalist” to the Court of International Trade? Seems to me unlikely. I would add also that the Trump administration wanted these cases to be in the Court of International Trade. When other people filed actions in other courts, the Trump administration has moved for them to be transferred to the Court of International Trade on the theory that this is the court that’s supposed to have jurisdiction—exclusive jurisdiction—over issues involving U.S. trade policy. So they lost in the very court that they wanted to be in, and at least one of the three judges was the kind of judge that many people might have expected would be sympathetic to them. That just shows the magnitude of the power grab that was attempted here.
Somin: Absolutely. And by judges, at least one of whom was as likely to be sympathetic to them as perhaps any judge would be.
Somin: Yeah. So the IEEPA statute has two requirements before presidents can invoke it. One is there has to be a national emergency declared. But two is that even if there is a national emergency, it has to be an emergency with respect to an extraordinary and unusual threat. And what the court said is that these things are not just delegated to the president to decide, however he wants to, whether an emergency exists or whether there’s an extraordinary and unusual threat. Courts have to review whether the facts show that there really is an extraordinary and unusual threat and whether the tariffs that have been adopted by the president are actually responding to that threat. And in this case, they concluded that that is not the case.
Somin: Yes, I think so. Although, it is also true that the court wasn’t completely clear whether the main emphasis of their analysis was on the words “extraordinary” and “unusual threat” or on the term “emergency.” What they did emphasize and what they did conclude is that the statute as a whole does have meaning, and it doesn’t just simply mean whatever the president says is an extraordinary and unusual threat. Or as one of the judges, Judge Restani, put it in oral argument, the president can’t just say any crazy thing qualifies as an emergency or an extraordinary and unusual threat. She used the example of a peanut butter shortage where the president could claim that’s an extraordinary and unusual threat and impose tariffs as a result. I think that’s just an example of the ridiculousness that you can get if the president just gets to unilaterally decide what qualifies as an extraordinary and unusual threat that allows triggering of the enormous powers created by the statute.
Somin: Yeah. Obviously, there’s been a bunch of other power grabs by this administration, some of which we can talk about. I myself have been involved in opposing that under the Alien Enemies Act. And when you put them together, a lot of them are essentially claiming that the powers normally reserved for extraordinary emergency situations can, in fact, be used as a matter of course. This is a standard tactic of various authoritarian regimes around the world. Admittedly, emergency power has been abused by previous presidents, including—I’m sorry to say—President Biden with, for example, his student loan forgiveness power grab. But the power grab here is even bigger than those. Trillions of dollars are involved. It’s the biggest such power grab, at least in economic terms, in modern American history. And there’s a number of others. And yes, if you look at the things that people like Stephen Miller and some of his other advisers have written and said, it seems like they have this vast outsize role for executive power in mind that would in fact turn the president into a quasi-dictator or even a king.
Somin: Sure. As I mentioned before, within the next few weeks, there’s going to be a decision on whether the trial course decision is going to be subject to a stay or not. If it is subject to a stay, then it would be held in abeyance while the appellate courts litigate this further. Whether there’s a stay or not, this case has been appealed to the U.S. Court of Appeals for the Federal Circuit, which has oversight over appeals from the Court of International Trade among other things. Whoever loses there could potentially appeal to the Supreme Court. How long will that take? I don’t know for sure. So far, this case and other cases related to the tariffs have proceeded at a much faster pace than litigation usually does because the courts recognize the importance and time sensitivity of the issue. I think it’s possible that the Federal Circuit will also have a relatively accelerated schedule but we don’t know that yet.
Sargent: So let’s just talk about what happens if the appeals court rules in your favor. First, I should say, do you anticipate that you have a reasonable chance of prevailing at the appeals court? And if so, what would happen then? Would the tariffs get put on hold? It just seems like there’s an immense amount of churn and uncertainty in the future right here that we’re looking at.
Sargent: And if the appeals court does rule your way, if the Supreme Court simply declines to take it, that would mean that the appeals court ruling against the tariffs would stand. And the alternative, of course, is the Supreme Court takes it. Game that last bit out for us.
Sargent: I think a lot of people haven’t wrapped their heads around the fact that there’s an actual possibility that the tariffs could be stopped. Isn’t that right?
Sargent: So it is possible that at the end of the day, this whole nightmare is just ended.
Sargent: Right. I think one thing that people haven’t really looked at, and I find very interesting, is that this is a thing that would be particularly hard for him to defy the court on.
Sargent: It may emerge at the end of the day that Trump’s power is not absolute after all. Ilya Somin, thanks so much for coming on with us. Congrats on the work and keep it up, man.
Somin: Thank you so much.
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