November 6, 2025 • 14 mins
What I took away from the tariff hearing yesterday is two-fold. First, it’s not a question as to if President Trump will lose his tariff case. It appears likely that he will – the question is the margin of the split. I think a 6-3 ruling against the tariffs is very likely. The other question is the extent to which they rein the executive use of tariff policy.
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Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
Speaker 1 (00:02):
Hey, thanks for listening, and welcome back to the Brian
Mud Show.
Speaker 2 (00:05):
Time now for today's top three takeaways. Pascodas tariff takedown.
Speaker 1 (00:11):
My takeaways for you own this Thursday, and it's not
just Thursday.
Speaker 2 (00:18):
It's of course another record set a day thirty seven.
Speaker 3 (00:23):
The longest government shutdown in history drags on.
Speaker 2 (00:28):
I can't hear you because.
Speaker 3 (00:29):
We have someone who doesn't respect the rights. Democratic Congresswoman
Chrissy Hulahan interrupted Speaker Johnson's daily press conference, arguing he
should make an effort to me with Democratic leadership. Bipartisan
talks are currently taking place among rank and file senators
on a plan to end the shutdown. President Trump is
encouraging Republicans to end the Senate filibuster to reopen the government,
(00:51):
but Majority Leader John Thune says the votes aren't there
to make that happen.
Speaker 1 (00:56):
Okay, And so that's the big takeaway from the shutdown thing.
There have been some thought, hey, we could get some
movement after the elections on Tuesday for shutdown related stuff,
and the answers no. If anything, the win by the
mom Dami wing of the Democrat Party has led to
an even greater sense by the radicals that no, you
(01:18):
gotta we got to get everything where we're demanding here
in terms of government socialism, So stay tuned on that.
My top takeaway for you, though, the imposition is taxes
on Americans, and that has always been a function of Congress.
Speaker 2 (01:38):
Come back to that here in a moment. It's very formal.
Speaker 1 (01:40):
I know, on occasion, I'll say I've not made a
career out of being wrong. And that's not to say
that I haven't been wrong at any point over the
twenty seven plus years with what I brought you, but
it's been extremely rare, and I'm quick to admit it
if I have stated something that's incorrect, because, after all,
the premise of what I do is based on my
(02:01):
saying that there are two science of stories and one
side of facts. And when it comes to matters of
constitutional law, the fun from an attorney's perspective and the
maddening for most of the rest of us come down
to matters of legal theory. If you happen to listen
in on the Supreme Court's hearing over President Trump's use
of executive authority to enact tariffs through emergency declarations yesterday,
(02:26):
you would have heard an awful lot of AEPA. Nobody
said it like that, but they should have. It would
have made it a far more entertaining hearing AIPA.
Speaker 2 (02:36):
Or time you say, now I think about the old
time horn. Oh there you go, kind of the same cadence. Yeah,
even Decker got a kick out the way I say so. Yeah.
Speaker 1 (02:45):
It's the IEEPA, or the International Emergency Economic Powers Act.
It was enacted in nineteen seventy seven, and it's been
the Trump administration's basis for the unprecedented use of tariff
authority this year. Now, if you aren't a policy walk
well first on the AEPA, you'd likely have been rather
(03:07):
lost on many of the finer points in the back
and forth arguments advanced for two hours and forty four
minutes as President Trump's Solicitor General, John Sawyer tried to
threat a legal needle and justifying the broad use of
executive authority. But whether you're a policy you walk in
an AIPA expert or not, you likely it would have
been able to pick up on what seemed to be
(03:28):
going down, namely most of President Trump's tariffs in the
nonsuitis in future. My top takeaway isn't equipped that I
came up with the imposition is taxes on Americans, and
that has always been a function of Congress.
Speaker 2 (03:43):
Now, that's not what I said.
Speaker 1 (03:45):
That is a direct quote from Chief Justice John Roberts
in yesterday's tariff hearing, and he said it in direct
response to his line of questioning of Trump's Solicitor General
comment brought about a quick defense of the Trump policy
by Sawyer that tariffs aren't actually a tax on Americans,
(04:11):
stating that other entities, often foreign, pay for them. It
had the hearing on the brink of having a debate
about what the definition of a tax is. This, by
the way, led to an eventual debate about license fees,
which Ammy Cooney Barrett in particular is very interested in
(04:31):
and I think does factor into what this decision and
sub looking like. But for practical purposes, that debate seemed
to be effectively cut off at the pass when the
discussion turned to the topic of tariffs having had the
effect of being revenue raising. Revenue raising the quintessential key
(04:53):
thing here And on that note, this was happening at
the same time as hearing yesterday before the Supreme Court.
Speaker 4 (05:02):
The President President Trump at the America Business Forum in
Miami discussed efforts to lower grocery prices here at home
and making countries across the world supplement the US economy.
Speaker 5 (05:13):
My tariffs are bringing in hundreds of billions of dollars
and a helping slash a deficit this year by more
than fifty percent.
Speaker 1 (05:21):
I mean, this world has been full of irony. Politics
has been full of irony throughout history. I'm not sure
we had more immediate irony ever than what was happening
in real time. While you had the President's solicitor General
making an argument before the United States Supreme Court that
the tariffs were not intended to raise revenue, you had
(05:46):
Trump saying this.
Speaker 5 (05:47):
My tariffs are bringing in hundreds of billions of dollars
and a helping slash a deficit this year by more
than fifty percent.
Speaker 1 (05:55):
I mean to tell you he probably should have been
in the Supreme Court yesterday.
Speaker 2 (05:59):
You want to have said that.
Speaker 1 (06:02):
Oh, I mean, he's not wrong, he's right about that.
But the whole constitution thing here in the law. My
second takeaway for you today, there's a lot of verbs,
but none of them involving raising revenue. There's a lot
of verbs but none of them involving raising revenue. Okay. So,
(06:25):
in other words, when tariffs are used for purposes of
revenue collection as opposed to serving emergency functions, you have
a tax which is a function of Congress because the
president doesn't have the unilateral ability to raise and then
reallocate revenue, which, by the way, Trump's solicitor general was
(06:51):
arguing yesterday that he acknowledges he doesn't have that power
and that's not what he's doing here.
Speaker 2 (06:59):
While Trump, look at all the revenue we raised and
we're paying down the debt with it. Happy day. Oh boy.
Speaker 1 (07:08):
So you even have, you know, the discussions that have
taken place, because that's the the president has been pointed
out there. He's right, they have collected one hundred and
ninety billion dollars in tariff revenue so far, and I
do approve of the use of those funds to pay
down debt. But you've even had the idea, Hey, maybe
we're going to do the tariff dividend. Right, what are
(07:30):
we gonna do with this money it's coming in? Because
Congress hasn't allocated it, it doesn't help the administration's case.
Speaker 2 (07:38):
That's an understatement.
Speaker 1 (07:39):
Now my second takeaway the the whole there's a lot
of verbs, but none of them involving raising revenue. That
was a quote from Justice, so to Mayor, who rather
artfully had the SG on defense and seemingly had the
quintessential argument that would appear to have carried the hearing.
This led to Trump Solicitor General coming up with the argument,
(08:03):
the best outcome of the tariffs is that no one
pays them. This is the corner he got himself into,
and this very difficult argument he was trying to make.
He said, the best outcome of the tariffs is that
no one pays them, because Americans would buy products manufactured
in this country. Okay, so that's how he's trying to say.
We aren't trying to raise revenue with these emergency tariffs
(08:27):
we've issued, because remember there's a minimum ten percent terrify
in every country, so there's an emergency against every country.
And what he's saying is we are trying to raise revenue.
We're trying to aid the hollowed out manufacturing sector in
this country. So effectively, his argument was no foreign trade. Ever,
(08:58):
that's the corner he got himself backed into, because that's
the only way it could not be intended to raise
revenue so plainally spoken, as evidenced by that quote from Sodamoire,
there is no language in AEPA that explicitly allows for
unilateral revenue raising measures by the President of the United States.
(09:20):
And that point was driven home with this comment. And
this is where I want you to do some thinking.
I want you to name the Supreme Court justice. My
third takeaway today, could the president impose a fifty percent
tear uff on gas powered cars and auto parts to
deal with the unusual and extraordinary threat from abroad of
climate change?
Speaker 2 (09:41):
And Joel, what justice do you think would say something
like that?
Speaker 4 (09:44):
Somebody that would probably want something like that, say Ketanji
Brown Jackson.
Speaker 2 (09:48):
Yeah, you could hear her saying that.
Speaker 6 (09:49):
Right. Reasonable, Okay, Congress delegate to the president the power
to regulate commerce with foreign nations as he sees fit.
We may and collect duties as he sees fit.
Speaker 2 (10:06):
We don't assert that here.
Speaker 3 (10:08):
That would be a much harder case now in seventeen nine,
And that.
Speaker 6 (10:11):
The logic of your view, though I don't think so.
Speaker 2 (10:14):
So let me think it fast. That didn't sound like
Ketanji Brown.
Speaker 1 (10:17):
Jackson did not, But that is the same justice that
posed that question about climate change. Neil Gorsich hardly a
radical leftist. He was arguing a point. He was making
a point when he said, could the president impose a
fifty percent gas terrifying gas powered cars and autoparts to
deal with the unusual and extraordinary threat from abroad of
(10:37):
climate change? So I think, by the way, Gorsich is
prime to author an opinion in this case, Trump's solicitor
general being behind the barrel, and you got a flavor
of it with that little exchange there with Gorsicic. He
had to answer that climate change question in the affirmative
because if they answered the other way, he would have
(10:59):
did a a blatant contradiction of everything he was trying
to argue. So you literally had the Trump administration solicitor
general saying, yeah, you know what a president could have
could declare a climate change emergency and begin imposing massive
tariffs and gas powered cars. That's the position Trump's solicitor
(11:21):
general was in. And he immediately covered that, going I'm
not going to come out of this hearing alive when
Trump hears this, unless I say, but the Trump administration
would never do that because we think it's so hoax.
It's a big laughline that came out. And of course
I just said I suspect. So the point was made,
(11:42):
The point was made right, and that it was the
moment where is over For me, it was like, there's
no way because the point was illustrated that effectively, if
the Supreme Court lets the broad authority of President Trump's
tariff's stand, there would be nothing to prevent a future
president from deeming emergency for anything they personally think it
as an emergency.
Speaker 2 (12:02):
Right, how many.
Speaker 1 (12:03):
Left wing people out there think there's a common emergency.
And the only thing Gorcias could have done differently to
illustrate his point, Rather than saying the fifty percent tariff,
when I say a ten thousand percent tariff, right, it
could be any number you want, because you have the
authority as the president just to do it. And so
if you want to kill the gas powered car industry, you,
as the president of the United States, if we allow
(12:26):
this Trump policy to stand, as Supreme Court justices would
be able to kill whole industries if they wanted to
a tariffs.
Speaker 2 (12:35):
Who wants that.
Speaker 1 (12:38):
This was the point he was making, not just to
the Solicitor General, not just to other Supreme Court justices,
but to President Trump directly himself and for that matter,
his supporters. Pretty indefensible position, isn't it. And so a
couple of things about this I might takeaways from the
(12:58):
hearing twofold. It's not a question as to if President
Trump loses this tariff case.
Speaker 2 (13:03):
He will.
Speaker 1 (13:04):
The question is the margin of the split and how
narrow the rulin is going to be. I'm not going
to get into all the wonky wonky wonkiness of the
license fees. That again will probably determine exactly how Coney
Barrett comes down. But the bottom line is there could
be loopholes, like, you know, let's say we just literally
said you can't do tariffs this way. Under the law,
(13:25):
there are things that presidents can impose with emergency declarations
that are called license fees. So could it be that
tariffs direstrected? Okay, so now we're going to call these
license fees when we put them all right back in,
It's liberation day on license fees. There's a question that
is being developed that about is this going to be
narrow and just strike down these tariffs? Is it going
to be broad and take out of the hands of
(13:48):
the president, any question about any loopholes in addition to
tariffs that they could impose through emergency declarations, and so
based upon how narrow or broad that ruling is, I
think it's somewhere between a five to four if it's
extremely broad, to a seven to two potentially if it
is narrow. So we will see how that goes, but
(14:09):
hopefully that helps kind of drive home what really went
down yesterday.
Hey, thanks for listening, and welcome back to the Brian
Mud Show.
Speaker 2 (00:05):
Time now for today's top three takeaways. Pascodas tariff takedown.
Speaker 1 (00:11):
My takeaways for you own this Thursday, and it's not
just Thursday.
Speaker 2 (00:18):
It's of course another record set a day thirty seven.
Speaker 3 (00:23):
The longest government shutdown in history drags on.
Speaker 2 (00:28):
I can't hear you because.
Speaker 3 (00:29):
We have someone who doesn't respect the rights. Democratic Congresswoman
Chrissy Hulahan interrupted Speaker Johnson's daily press conference, arguing he
should make an effort to me with Democratic leadership. Bipartisan
talks are currently taking place among rank and file senators
on a plan to end the shutdown. President Trump is
encouraging Republicans to end the Senate filibuster to reopen the government,
(00:51):
but Majority Leader John Thune says the votes aren't there
to make that happen.
Speaker 1 (00:56):
Okay, And so that's the big takeaway from the shutdown thing.
There have been some thought, hey, we could get some
movement after the elections on Tuesday for shutdown related stuff,
and the answers no. If anything, the win by the
mom Dami wing of the Democrat Party has led to
an even greater sense by the radicals that no, you
(01:18):
gotta we got to get everything where we're demanding here
in terms of government socialism, So stay tuned on that.
My top takeaway for you, though, the imposition is taxes
on Americans, and that has always been a function of Congress.
Speaker 2 (01:38):
Come back to that here in a moment. It's very formal.
Speaker 1 (01:40):
I know, on occasion, I'll say I've not made a
career out of being wrong. And that's not to say
that I haven't been wrong at any point over the
twenty seven plus years with what I brought you, but
it's been extremely rare, and I'm quick to admit it
if I have stated something that's incorrect, because, after all,
the premise of what I do is based on my
(02:01):
saying that there are two science of stories and one
side of facts. And when it comes to matters of
constitutional law, the fun from an attorney's perspective and the
maddening for most of the rest of us come down
to matters of legal theory. If you happen to listen
in on the Supreme Court's hearing over President Trump's use
of executive authority to enact tariffs through emergency declarations yesterday,
(02:26):
you would have heard an awful lot of AEPA. Nobody
said it like that, but they should have. It would
have made it a far more entertaining hearing AIPA.
Speaker 2 (02:36):
Or time you say, now I think about the old
time horn. Oh there you go, kind of the same cadence. Yeah,
even Decker got a kick out the way I say so. Yeah.
Speaker 1 (02:45):
It's the IEEPA, or the International Emergency Economic Powers Act.
It was enacted in nineteen seventy seven, and it's been
the Trump administration's basis for the unprecedented use of tariff
authority this year. Now, if you aren't a policy walk
well first on the AEPA, you'd likely have been rather
(03:07):
lost on many of the finer points in the back
and forth arguments advanced for two hours and forty four
minutes as President Trump's Solicitor General, John Sawyer tried to
threat a legal needle and justifying the broad use of
executive authority. But whether you're a policy you walk in
an AIPA expert or not, you likely it would have
been able to pick up on what seemed to be
(03:28):
going down, namely most of President Trump's tariffs in the
nonsuitis in future. My top takeaway isn't equipped that I
came up with the imposition is taxes on Americans, and
that has always been a function of Congress.
Speaker 2 (03:43):
Now, that's not what I said.
Speaker 1 (03:45):
That is a direct quote from Chief Justice John Roberts
in yesterday's tariff hearing, and he said it in direct
response to his line of questioning of Trump's Solicitor General
comment brought about a quick defense of the Trump policy
by Sawyer that tariffs aren't actually a tax on Americans,
(04:11):
stating that other entities, often foreign, pay for them. It
had the hearing on the brink of having a debate
about what the definition of a tax is. This, by
the way, led to an eventual debate about license fees,
which Ammy Cooney Barrett in particular is very interested in
(04:31):
and I think does factor into what this decision and
sub looking like. But for practical purposes, that debate seemed
to be effectively cut off at the pass when the
discussion turned to the topic of tariffs having had the
effect of being revenue raising. Revenue raising the quintessential key
(04:53):
thing here And on that note, this was happening at
the same time as hearing yesterday before the Supreme Court.
Speaker 4 (05:02):
The President President Trump at the America Business Forum in
Miami discussed efforts to lower grocery prices here at home
and making countries across the world supplement the US economy.
Speaker 5 (05:13):
My tariffs are bringing in hundreds of billions of dollars
and a helping slash a deficit this year by more
than fifty percent.
Speaker 1 (05:21):
I mean, this world has been full of irony. Politics
has been full of irony throughout history. I'm not sure
we had more immediate irony ever than what was happening
in real time. While you had the President's solicitor General
making an argument before the United States Supreme Court that
the tariffs were not intended to raise revenue, you had
(05:46):
Trump saying this.
Speaker 5 (05:47):
My tariffs are bringing in hundreds of billions of dollars
and a helping slash a deficit this year by more
than fifty percent.
Speaker 1 (05:55):
I mean to tell you he probably should have been
in the Supreme Court yesterday.
Speaker 2 (05:59):
You want to have said that.
Speaker 1 (06:02):
Oh, I mean, he's not wrong, he's right about that.
But the whole constitution thing here in the law. My
second takeaway for you today, there's a lot of verbs,
but none of them involving raising revenue. There's a lot
of verbs but none of them involving raising revenue. Okay. So,
(06:25):
in other words, when tariffs are used for purposes of
revenue collection as opposed to serving emergency functions, you have
a tax which is a function of Congress because the
president doesn't have the unilateral ability to raise and then
reallocate revenue, which, by the way, Trump's solicitor general was
(06:51):
arguing yesterday that he acknowledges he doesn't have that power
and that's not what he's doing here.
Speaker 2 (06:59):
While Trump, look at all the revenue we raised and
we're paying down the debt with it. Happy day. Oh boy.
Speaker 1 (07:08):
So you even have, you know, the discussions that have
taken place, because that's the the president has been pointed
out there. He's right, they have collected one hundred and
ninety billion dollars in tariff revenue so far, and I
do approve of the use of those funds to pay
down debt. But you've even had the idea, Hey, maybe
we're going to do the tariff dividend. Right, what are
(07:30):
we gonna do with this money it's coming in? Because
Congress hasn't allocated it, it doesn't help the administration's case.
Speaker 2 (07:38):
That's an understatement.
Speaker 1 (07:39):
Now my second takeaway the the whole there's a lot
of verbs, but none of them involving raising revenue. That
was a quote from Justice, so to Mayor, who rather
artfully had the SG on defense and seemingly had the
quintessential argument that would appear to have carried the hearing.
This led to Trump Solicitor General coming up with the argument,
(08:03):
the best outcome of the tariffs is that no one
pays them. This is the corner he got himself into,
and this very difficult argument he was trying to make.
He said, the best outcome of the tariffs is that
no one pays them, because Americans would buy products manufactured
in this country. Okay, so that's how he's trying to say.
We aren't trying to raise revenue with these emergency tariffs
(08:27):
we've issued, because remember there's a minimum ten percent terrify
in every country, so there's an emergency against every country.
And what he's saying is we are trying to raise revenue.
We're trying to aid the hollowed out manufacturing sector in
this country. So effectively, his argument was no foreign trade. Ever,
(08:58):
that's the corner he got himself backed into, because that's
the only way it could not be intended to raise
revenue so plainally spoken, as evidenced by that quote from Sodamoire,
there is no language in AEPA that explicitly allows for
unilateral revenue raising measures by the President of the United States.
(09:20):
And that point was driven home with this comment. And
this is where I want you to do some thinking.
I want you to name the Supreme Court justice. My
third takeaway today, could the president impose a fifty percent
tear uff on gas powered cars and auto parts to
deal with the unusual and extraordinary threat from abroad of
climate change?
Speaker 2 (09:41):
And Joel, what justice do you think would say something
like that?
Speaker 4 (09:44):
Somebody that would probably want something like that, say Ketanji
Brown Jackson.
Speaker 2 (09:48):
Yeah, you could hear her saying that.
Speaker 6 (09:49):
Right. Reasonable, Okay, Congress delegate to the president the power
to regulate commerce with foreign nations as he sees fit.
We may and collect duties as he sees fit.
Speaker 2 (10:06):
We don't assert that here.
Speaker 3 (10:08):
That would be a much harder case now in seventeen nine,
And that.
Speaker 6 (10:11):
The logic of your view, though I don't think so.
Speaker 2 (10:14):
So let me think it fast. That didn't sound like
Ketanji Brown.
Speaker 1 (10:17):
Jackson did not, But that is the same justice that
posed that question about climate change. Neil Gorsich hardly a
radical leftist. He was arguing a point. He was making
a point when he said, could the president impose a
fifty percent gas terrifying gas powered cars and autoparts to
deal with the unusual and extraordinary threat from abroad of
(10:37):
climate change? So I think, by the way, Gorsich is
prime to author an opinion in this case, Trump's solicitor
general being behind the barrel, and you got a flavor
of it with that little exchange there with Gorsicic. He
had to answer that climate change question in the affirmative
because if they answered the other way, he would have
(10:59):
did a a blatant contradiction of everything he was trying
to argue. So you literally had the Trump administration solicitor
general saying, yeah, you know what a president could have
could declare a climate change emergency and begin imposing massive
tariffs and gas powered cars. That's the position Trump's solicitor
(11:21):
general was in. And he immediately covered that, going I'm
not going to come out of this hearing alive when
Trump hears this, unless I say, but the Trump administration
would never do that because we think it's so hoax.
It's a big laughline that came out. And of course
I just said I suspect. So the point was made,
(11:42):
The point was made right, and that it was the
moment where is over For me, it was like, there's
no way because the point was illustrated that effectively, if
the Supreme Court lets the broad authority of President Trump's
tariff's stand, there would be nothing to prevent a future
president from deeming emergency for anything they personally think it
as an emergency.
Speaker 2 (12:02):
Right, how many.
Speaker 1 (12:03):
Left wing people out there think there's a common emergency.
And the only thing Gorcias could have done differently to
illustrate his point, Rather than saying the fifty percent tariff,
when I say a ten thousand percent tariff, right, it
could be any number you want, because you have the
authority as the president just to do it. And so
if you want to kill the gas powered car industry, you,
as the president of the United States, if we allow
(12:26):
this Trump policy to stand, as Supreme Court justices would
be able to kill whole industries if they wanted to
a tariffs.
Speaker 2 (12:35):
Who wants that.
Speaker 1 (12:38):
This was the point he was making, not just to
the Solicitor General, not just to other Supreme Court justices,
but to President Trump directly himself and for that matter,
his supporters. Pretty indefensible position, isn't it. And so a
couple of things about this I might takeaways from the
(12:58):
hearing twofold. It's not a question as to if President
Trump loses this tariff case.
Speaker 2 (13:03):
He will.
Speaker 1 (13:04):
The question is the margin of the split and how
narrow the rulin is going to be. I'm not going
to get into all the wonky wonky wonkiness of the
license fees. That again will probably determine exactly how Coney
Barrett comes down. But the bottom line is there could
be loopholes, like, you know, let's say we just literally
said you can't do tariffs this way. Under the law,
(13:25):
there are things that presidents can impose with emergency declarations
that are called license fees. So could it be that
tariffs direstrected? Okay, so now we're going to call these
license fees when we put them all right back in,
It's liberation day on license fees. There's a question that
is being developed that about is this going to be
narrow and just strike down these tariffs? Is it going
to be broad and take out of the hands of
(13:48):
the president, any question about any loopholes in addition to
tariffs that they could impose through emergency declarations, and so
based upon how narrow or broad that ruling is, I
think it's somewhere between a five to four if it's
extremely broad, to a seven to two potentially if it
is narrow. So we will see how that goes, but
(14:09):
hopefully that helps kind of drive home what really went
down yesterday.
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