Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
Speaker 1 (00:01):
Jen and I Weather forecast heat advisory in effect till
eight pm. Good news for the week weekend.
Speaker 2 (00:07):
Hold on today's high ninety three feeling more like one
hundred and three degrees, very slim chance of rain overnight's
and clear skies seventy two for below eighty three are
high tomorrow.
Speaker 1 (00:16):
Though we're supposed to get some rain between nine am
and five pms.
Speaker 2 (00:21):
Rain moves out of a night down to sixty five
and a cool, refreshing eighty degrees for the high on Friday,
and they say prepare for a wonderful weekend weatherwise seventy six.
Speaker 1 (00:30):
Right now, time for a travel up day.
Speaker 3 (00:31):
Chuck Ingram from the UC Help Traffic Center u See
Health Weight Loss Center offers Sergic Cohen Medical ob CD
care and expertise called five one three nine three nine
two two six three that's nine three nine twenty two
sixty three Highway traffic is a slow go southbound seventy five,
especially there was a broken down in the center lane
(00:52):
in milonch one split.
Speaker 1 (00:54):
They blocked off the right lane.
Speaker 3 (00:55):
Too clear now, but it's over a twenty minute to
lay out of Sharonville northbound seventy five Heavy US between
Buttermilk and downtown. Coming up next, guest who is tanned
and rests it up from vacation and ready to go
fine school supplies the judges. Next, Chuck Ingram month fifty
(01:16):
five krs the talk.
Speaker 2 (01:17):
Station, Hey, thirty fifty five kar see the talk station
Judge Napolitana with his brand new package of number two pencils.
Speaker 1 (01:27):
He's ready for school.
Speaker 4 (01:28):
Welcome back, always ready for school.
Speaker 5 (01:33):
Thank you Chuck Ingram, Thank you Brian, Thank you Joe Stricker.
Speaker 4 (01:36):
What a pleasure to be back with you guys, all
the best to you.
Speaker 2 (01:39):
Really missed having you on when you were gone. Understand
the need for vacation, and I hope you had a
nice one.
Speaker 4 (01:44):
I did, I did.
Speaker 5 (01:45):
I was in Berlin, Zurich, and a week at Lake
Como was just beautiful, just lovely, so all the friends
I wanted to see. It was a great, great vacation.
But after a while you think that's time to get productive.
Speaker 2 (01:59):
Again, get back to the farm and get some work done. Anyhow,
it's a pleasure having you back in the program, and
I thoroughly enjoyed, as I always do your column. Can
the President impose taxes? The question asked that to lead
into the column. Then this boils down to a conversation
an ilegal analysis of tariffs trum.
Speaker 5 (02:20):
This is going to be argued tomorrow, Thursday, July thirty first,
before the Federal Court of Appeals for the Federal Circuit
in DC. There will not be an empty seat in
the House. They've already had to put screens up in
other rooms.
Speaker 4 (02:38):
There's such an interest in it.
Speaker 5 (02:40):
The belief amongst those of us in the legal community
that monitor these things.
Speaker 4 (02:45):
Is that the lower court will be upheld.
Speaker 5 (02:47):
And the tariffs will the declaration that the tariffs are
unconstitutional because only Congress can impose a tax, and a
tariff is a tax.
Speaker 4 (02:56):
No matter what Donald Trump calls.
Speaker 5 (02:58):
It will be the law of the land. This will
have an unbelievable effect on the president's daily negotiations.
Speaker 4 (03:07):
Yes, now they're not going to rule from the bench.
It's the end of July.
Speaker 5 (03:12):
I would guess a decision wouldn't come out until after
Labor Day.
Speaker 2 (03:17):
And presumably if it does uphol the lower court's opinion,
which was these are taxes and he does not have
the power to do this, the likelihood of appeal is strong.
We're going to end up in the Supreme Court on
this one. The chance of a graining of a retisserciara
on this I suppose it is pretty high.
Speaker 1 (03:33):
If that's what I.
Speaker 5 (03:34):
Think the Supreme Court, even though there's no split in
the circuits possible here, because this is the only court
that can hear this.
Speaker 4 (03:43):
Meaning, this is not a case.
Speaker 5 (03:44):
Where a judge in California said one thing and the
ninth Circuit agreed, and the judge in Massachusetts said the
opposite and the first circuit agreed. No, this is the
only court that has the jurisdiction to address tariffs, the
US International Court of Trade, which sits here in Manhattan,
(04:04):
and now the Appellate Court for this Court in DC.
So I think the Supreme Court will want to hear this,
even though it seems to me pretty obvious. The president
doesn't have the power to impose a tax. Look, tariffs
have been around since the colonial era. Jefferson and company
loved them. They were a principal mechanism for funding the
(04:29):
federal government. But they were enacted by Congress. They were
not imposed by the president. The Constitution couldn't be clearer.
All legislative power here and granted shall be in a
Congress of the United States. The first power articulated to
Congress Article one, Section eight, the power delay and collect taxes.
(04:53):
It's clear as can be that only Congress can impose attacks.
Speaker 4 (04:57):
Congress can tax anything at once.
Speaker 5 (04:59):
If Congress doesn't wan want me to wear a red tie,
they cannot enact or regulation banning red ties.
Speaker 4 (05:05):
They don't have the authority to do that.
Speaker 5 (05:06):
They could ban them an interstate commerce or they could
tax the daylights out of it so that I wouldn't
buy one. They clearly can impose tariffs. Nobody else can.
Speaker 2 (05:17):
Now the tariffs that are currently in place, and I
mean he's tinkering with things that currently exist, raising them
where he wants to raise them in no order to
get you know, this seems to be a critical component
to his foreign policy strategy. I note, for example, that
he's threatening Russia with sanctions and additional tariffs if they
continue to fund this war with Ukraine, so that power
(05:39):
will be taken away. Is there an argument in there
that this is not This is in taxas is terriffs,
and it's related to foreign policy, and Donald Trump has
exclusive authority under the Constitution to deal with matters of
foreign policy.
Speaker 5 (05:50):
Probably the government's strongest argument is that this is a
matter of foreign policy and therefore immune from judicial review.
The lower court dismissed that summarily, saying it is a
matter of foreign policy, but the president is doing it
for non foreign policy reasons. He's doing it because of
an imbalance of trade. He's doing it because he's been
(06:13):
insulted by foreign leaders, he's doing it because it doesn't
like a criminal case going on in Brazil. And whatever
he does, it is still subject to the Constitution. Though
the president has privacy, he doesn't have total domination. His
ambassadors have to be confirmed, he needs a budget from
(06:34):
the Congress. He can't declare war. He still has to
respect the Bill of Rights, so there are other constraints
still on his ability to run foreign policy.
Speaker 4 (06:46):
He cites a statute. It's an interesting statute.
Speaker 5 (06:49):
I think these emergency laws are all unconstitutional because the
Supreme Court has consistently said there are no emergency powers
in the Constitution. It applies in good times in badtheless.
In nineteen seventy seven and the Carter era, the Congress
and acted and President Carter signed into law giving the
president emergency powers in the case of an economic emergency.
(07:12):
And it allows him to do a lot of things.
Tariffs is not in there. The very statute that he
cited for a support his lawyers didn't even read.
Speaker 4 (07:23):
It doesn't authorize the presidential imposition of tariffs.
Speaker 5 (07:27):
It allows him to do a lot of things, ban products,
sanction products, even imposed wage and price controls. It does
not permit tariffs.
Speaker 2 (07:38):
Well, and there's an argument you've made in there, unless
it's been tested in arguing for the Supreme Court, that
that's an unconstitutional delegation of congressional authority to the president.
Speaker 4 (07:46):
It absolutely is. It absolutely is.
Speaker 5 (07:48):
And Brian, the lower court did something I've never seen before.
When the DOJ said it's not attacks, the lower court
said it is. But even if it weren't, no matter
what you call it, Congress can't give its power away
(08:10):
to the president. That would violate the separation of powers.
So the lower court covered the full gamut of legal
issues implicated by this. I think that Trump entered office,
I can't get into his brain, of course, held bent
on using tariffs as an instrument to effectuate his will.
(08:30):
Oh yeah, irrespective irrespective of the constitutional constraints that he
swore to uphold.
Speaker 2 (08:37):
Yeah, because I think he felt strongly that tariffs are
not taxes, and because the congressional power had the power
to lay and collect taxes, he believed, you know, fundamentally,
the tariffs are not taxes. Ergo he's allowed to do it.
Is he the first president or only presidents who just
arbitraris I'll say arbitrarily, Maybe that's an incorrect word to use,
but to just pick and choose what taxes or what
(08:58):
tariffs he wants the levee on you given country. There
is there any precedent for a president doing that.
Speaker 5 (09:06):
The closest precedent is a case called Curtis Right. This
is nineteen thirty six, so we're at the height of
the depression. Congress gave the president then FDR, the power
to determine what could be exported and imported on his
(09:26):
own and make it a crime to violate what he
decided couldn't be exported and imported. Curtis Right was a
manufacturer of weapons, and they sold it to the country Oblivia.
And even though Congress never prohibited, only the president did.
The court allowed the prosecution to go forward. That's about
the closest there is. It's not a tariff, but it
(09:48):
makes criminal the violation of an executive order banning the
exportation of certain goods. Short answer to your question is,
no president has ever imposed tariffs on his own. The
closest we have is this FDR thing. But FDR didn't
need to do it on his own. He had a
very compliant Congress for all twelve years office.
Speaker 1 (10:09):
We all know that he did.
Speaker 4 (10:10):
That's why we have so many problems today.
Speaker 2 (10:12):
Yeah, well, and I guess the lower court opinion has
it been stayed pending outcome on appeal because he's still
at it. I mean, he's negotiating.
Speaker 5 (10:23):
They stayed it on their own, which is the smart
thing to do, rather than aggravate the appellate court, and
forced them to do so in the middle of the summer.
So the lower court stayed its opinion pending appeal.
Speaker 4 (10:37):
So he is. He is still at it.
Speaker 5 (10:39):
The interesting thing would be if they had not stayed it,
would he still be at it?
Speaker 1 (10:43):
Right? Creates an academic question.
Speaker 4 (10:46):
Because his DOJ.
Speaker 5 (10:49):
Is the most flagrant violators of court orders I've ever seen.
One of the principal architects of those violations was just
made a federal appellate judge.
Speaker 1 (11:00):
Night. Here we go, all right.
Speaker 2 (11:01):
Very briefly, since we're out of Tom Judge and Polatano.
The outcome, let's assume, for the sake of discussion throughout
it goes to the legal system, these things, the terrorifts,
R and D taxes. He does not have the power
to unilaterally do it. That means all the negotiations that
he's gone through, sign sealed, and delivered as some are,
are now gone.
Speaker 4 (11:21):
Correct.
Speaker 5 (11:22):
He would probably ask Congress to enact the terriffs, and
then you got a problem. Then you've got Republicans saying
we're never going to raise taxes, deciding to impose national
sales taxes. Could you imagine that you want to buy
one hundred thousand dollars Mercedes, but the Republicans that said
it's going to cost you one hundred and fifteen thousand.
Speaker 4 (11:38):
You want to buy a twenty five dollars toaster.
Speaker 5 (11:41):
But the Republicans are saying it's not going to cost
you thirty bucks. That's the burden that they do not
want to have to deal with.
Speaker 4 (11:48):
Prior to the twenty twenty six.
Speaker 1 (11:49):
Mid read my lips, no new taxes.
Speaker 4 (11:53):
What happened?
Speaker 2 (11:54):
Then, Yes, we have a profound recollection of that. Judge
in and Apoltana. Interesting challenge wh just the administration is
going to be facing what appears to be pretty conclusive
outcome that you've anticipated based upon the lower court readings.
That's why we've got you around and make clear sense
of all this. Judge Enneda Polatano, God bless you so
happy you're back from vacation.
Speaker 1 (12:14):
I'm glad you had safe travel man.
Speaker 5 (12:16):
Thank you to everybody, to your whole team, and look
forward already in the next Wednesday, All the best, Brian.
Speaker 2 (12:20):
Next Wednesday, my friend appointment listening on the fifty five
KRS morning show eight forty one. Right now, stick around,
we're going to hear from Claremont County Prosecutor Mark to
call the congratulations to him and his team.
Speaker 1 (12:31):
They scored a great conviction the other day. We'll learn
all about that in a moment. Fifty five the talk
station would and
Jen and I Weather forecast heat advisory in effect till
eight pm. Good news for the week weekend.
Speaker 2 (00:07):
Hold on today's high ninety three feeling more like one
hundred and three degrees, very slim chance of rain overnight's
and clear skies seventy two for below eighty three are
high tomorrow.
Speaker 1 (00:16):
Though we're supposed to get some rain between nine am
and five pms.
Speaker 2 (00:21):
Rain moves out of a night down to sixty five
and a cool, refreshing eighty degrees for the high on Friday,
and they say prepare for a wonderful weekend weatherwise seventy six.
Speaker 1 (00:30):
Right now, time for a travel up day.
Speaker 3 (00:31):
Chuck Ingram from the UC Help Traffic Center u See
Health Weight Loss Center offers Sergic Cohen Medical ob CD
care and expertise called five one three nine three nine
two two six three that's nine three nine twenty two
sixty three Highway traffic is a slow go southbound seventy five,
especially there was a broken down in the center lane
(00:52):
in milonch one split.
Speaker 1 (00:54):
They blocked off the right lane.
Speaker 3 (00:55):
Too clear now, but it's over a twenty minute to
lay out of Sharonville northbound seventy five Heavy US between
Buttermilk and downtown. Coming up next, guest who is tanned
and rests it up from vacation and ready to go
fine school supplies the judges. Next, Chuck Ingram month fifty
(01:16):
five krs the talk.
Speaker 2 (01:17):
Station, Hey, thirty fifty five kar see the talk station
Judge Napolitana with his brand new package of number two pencils.
Speaker 1 (01:27):
He's ready for school.
Speaker 4 (01:28):
Welcome back, always ready for school.
Speaker 5 (01:33):
Thank you Chuck Ingram, Thank you Brian, Thank you Joe Stricker.
Speaker 4 (01:36):
What a pleasure to be back with you guys, all
the best to you.
Speaker 2 (01:39):
Really missed having you on when you were gone. Understand
the need for vacation, and I hope you had a
nice one.
Speaker 4 (01:44):
I did, I did.
Speaker 5 (01:45):
I was in Berlin, Zurich, and a week at Lake
Como was just beautiful, just lovely, so all the friends
I wanted to see. It was a great, great vacation.
But after a while you think that's time to get productive.
Speaker 2 (01:59):
Again, get back to the farm and get some work done. Anyhow,
it's a pleasure having you back in the program, and
I thoroughly enjoyed, as I always do your column. Can
the President impose taxes? The question asked that to lead
into the column. Then this boils down to a conversation
an ilegal analysis of tariffs trum.
Speaker 5 (02:20):
This is going to be argued tomorrow, Thursday, July thirty first,
before the Federal Court of Appeals for the Federal Circuit
in DC. There will not be an empty seat in
the House. They've already had to put screens up in
other rooms.
Speaker 4 (02:38):
There's such an interest in it.
Speaker 5 (02:40):
The belief amongst those of us in the legal community
that monitor these things.
Speaker 4 (02:45):
Is that the lower court will be upheld.
Speaker 5 (02:47):
And the tariffs will the declaration that the tariffs are
unconstitutional because only Congress can impose a tax, and a
tariff is a tax.
Speaker 4 (02:56):
No matter what Donald Trump calls.
Speaker 5 (02:58):
It will be the law of the land. This will
have an unbelievable effect on the president's daily negotiations.
Speaker 4 (03:07):
Yes, now they're not going to rule from the bench.
It's the end of July.
Speaker 5 (03:12):
I would guess a decision wouldn't come out until after
Labor Day.
Speaker 2 (03:17):
And presumably if it does uphol the lower court's opinion,
which was these are taxes and he does not have
the power to do this, the likelihood of appeal is strong.
We're going to end up in the Supreme Court on
this one. The chance of a graining of a retisserciara
on this I suppose it is pretty high.
Speaker 1 (03:33):
If that's what I.
Speaker 5 (03:34):
Think the Supreme Court, even though there's no split in
the circuits possible here, because this is the only court
that can hear this.
Speaker 4 (03:43):
Meaning, this is not a case.
Speaker 5 (03:44):
Where a judge in California said one thing and the
ninth Circuit agreed, and the judge in Massachusetts said the
opposite and the first circuit agreed. No, this is the
only court that has the jurisdiction to address tariffs, the
US International Court of Trade, which sits here in Manhattan,
(04:04):
and now the Appellate Court for this Court in DC.
So I think the Supreme Court will want to hear this,
even though it seems to me pretty obvious. The president
doesn't have the power to impose a tax. Look, tariffs
have been around since the colonial era. Jefferson and company
loved them. They were a principal mechanism for funding the
(04:29):
federal government. But they were enacted by Congress. They were
not imposed by the president. The Constitution couldn't be clearer.
All legislative power here and granted shall be in a
Congress of the United States. The first power articulated to
Congress Article one, Section eight, the power delay and collect taxes.
(04:53):
It's clear as can be that only Congress can impose attacks.
Speaker 4 (04:57):
Congress can tax anything at once.
Speaker 5 (04:59):
If Congress doesn't wan want me to wear a red tie,
they cannot enact or regulation banning red ties.
Speaker 4 (05:05):
They don't have the authority to do that.
Speaker 5 (05:06):
They could ban them an interstate commerce or they could
tax the daylights out of it so that I wouldn't
buy one. They clearly can impose tariffs. Nobody else can.
Speaker 2 (05:17):
Now the tariffs that are currently in place, and I
mean he's tinkering with things that currently exist, raising them
where he wants to raise them in no order to
get you know, this seems to be a critical component
to his foreign policy strategy. I note, for example, that
he's threatening Russia with sanctions and additional tariffs if they
continue to fund this war with Ukraine, so that power
(05:39):
will be taken away. Is there an argument in there
that this is not This is in taxas is terriffs,
and it's related to foreign policy, and Donald Trump has
exclusive authority under the Constitution to deal with matters of
foreign policy.
Speaker 5 (05:50):
Probably the government's strongest argument is that this is a
matter of foreign policy and therefore immune from judicial review.
The lower court dismissed that summarily, saying it is a
matter of foreign policy, but the president is doing it
for non foreign policy reasons. He's doing it because of
an imbalance of trade. He's doing it because he's been
(06:13):
insulted by foreign leaders, he's doing it because it doesn't
like a criminal case going on in Brazil. And whatever
he does, it is still subject to the Constitution. Though
the president has privacy, he doesn't have total domination. His
ambassadors have to be confirmed, he needs a budget from
(06:34):
the Congress. He can't declare war. He still has to
respect the Bill of Rights, so there are other constraints
still on his ability to run foreign policy.
Speaker 4 (06:46):
He cites a statute. It's an interesting statute.
Speaker 5 (06:49):
I think these emergency laws are all unconstitutional because the
Supreme Court has consistently said there are no emergency powers
in the Constitution. It applies in good times in badtheless.
In nineteen seventy seven and the Carter era, the Congress
and acted and President Carter signed into law giving the
president emergency powers in the case of an economic emergency.
(07:12):
And it allows him to do a lot of things.
Tariffs is not in there. The very statute that he
cited for a support his lawyers didn't even read.
Speaker 4 (07:23):
It doesn't authorize the presidential imposition of tariffs.
Speaker 5 (07:27):
It allows him to do a lot of things, ban products,
sanction products, even imposed wage and price controls. It does
not permit tariffs.
Speaker 2 (07:38):
Well, and there's an argument you've made in there, unless
it's been tested in arguing for the Supreme Court, that
that's an unconstitutional delegation of congressional authority to the president.
Speaker 4 (07:46):
It absolutely is. It absolutely is.
Speaker 5 (07:48):
And Brian, the lower court did something I've never seen before.
When the DOJ said it's not attacks, the lower court
said it is. But even if it weren't, no matter
what you call it, Congress can't give its power away
(08:10):
to the president. That would violate the separation of powers.
So the lower court covered the full gamut of legal
issues implicated by this. I think that Trump entered office,
I can't get into his brain, of course, held bent
on using tariffs as an instrument to effectuate his will.
(08:30):
Oh yeah, irrespective irrespective of the constitutional constraints that he
swore to uphold.
Speaker 2 (08:37):
Yeah, because I think he felt strongly that tariffs are
not taxes, and because the congressional power had the power
to lay and collect taxes, he believed, you know, fundamentally,
the tariffs are not taxes. Ergo he's allowed to do it.
Is he the first president or only presidents who just
arbitraris I'll say arbitrarily, Maybe that's an incorrect word to use,
but to just pick and choose what taxes or what
(08:58):
tariffs he wants the levee on you given country. There
is there any precedent for a president doing that.
Speaker 5 (09:06):
The closest precedent is a case called Curtis Right. This
is nineteen thirty six, so we're at the height of
the depression. Congress gave the president then FDR, the power
to determine what could be exported and imported on his
(09:26):
own and make it a crime to violate what he
decided couldn't be exported and imported. Curtis Right was a
manufacturer of weapons, and they sold it to the country Oblivia.
And even though Congress never prohibited, only the president did.
The court allowed the prosecution to go forward. That's about
the closest there is. It's not a tariff, but it
(09:48):
makes criminal the violation of an executive order banning the
exportation of certain goods. Short answer to your question is,
no president has ever imposed tariffs on his own. The
closest we have is this FDR thing. But FDR didn't
need to do it on his own. He had a
very compliant Congress for all twelve years office.
Speaker 1 (10:09):
We all know that he did.
Speaker 4 (10:10):
That's why we have so many problems today.
Speaker 2 (10:12):
Yeah, well, and I guess the lower court opinion has
it been stayed pending outcome on appeal because he's still
at it. I mean, he's negotiating.
Speaker 5 (10:23):
They stayed it on their own, which is the smart
thing to do, rather than aggravate the appellate court, and
forced them to do so in the middle of the summer.
So the lower court stayed its opinion pending appeal.
Speaker 4 (10:37):
So he is. He is still at it.
Speaker 5 (10:39):
The interesting thing would be if they had not stayed it,
would he still be at it?
Speaker 1 (10:43):
Right? Creates an academic question.
Speaker 4 (10:46):
Because his DOJ.
Speaker 5 (10:49):
Is the most flagrant violators of court orders I've ever seen.
One of the principal architects of those violations was just
made a federal appellate judge.
Speaker 1 (11:00):
Night. Here we go, all right.
Speaker 2 (11:01):
Very briefly, since we're out of Tom Judge and Polatano.
The outcome, let's assume, for the sake of discussion throughout
it goes to the legal system, these things, the terrorifts,
R and D taxes. He does not have the power
to unilaterally do it. That means all the negotiations that
he's gone through, sign sealed, and delivered as some are,
are now gone.
Speaker 4 (11:21):
Correct.
Speaker 5 (11:22):
He would probably ask Congress to enact the terriffs, and
then you got a problem. Then you've got Republicans saying
we're never going to raise taxes, deciding to impose national
sales taxes. Could you imagine that you want to buy
one hundred thousand dollars Mercedes, but the Republicans that said
it's going to cost you one hundred and fifteen thousand.
Speaker 4 (11:38):
You want to buy a twenty five dollars toaster.
Speaker 5 (11:41):
But the Republicans are saying it's not going to cost
you thirty bucks. That's the burden that they do not
want to have to deal with.
Speaker 4 (11:48):
Prior to the twenty twenty six.
Speaker 1 (11:49):
Mid read my lips, no new taxes.
Speaker 4 (11:53):
What happened?
Speaker 2 (11:54):
Then, Yes, we have a profound recollection of that. Judge
in and Apoltana. Interesting challenge wh just the administration is
going to be facing what appears to be pretty conclusive
outcome that you've anticipated based upon the lower court readings.
That's why we've got you around and make clear sense
of all this. Judge Enneda Polatano, God bless you so
happy you're back from vacation.
Speaker 1 (12:14):
I'm glad you had safe travel man.
Speaker 5 (12:16):
Thank you to everybody, to your whole team, and look
forward already in the next Wednesday, All the best, Brian.
Speaker 2 (12:20):
Next Wednesday, my friend appointment listening on the fifty five
KRS morning show eight forty one. Right now, stick around,
we're going to hear from Claremont County Prosecutor Mark to
call the congratulations to him and his team.
Speaker 1 (12:31):
They scored a great conviction the other day. We'll learn
all about that in a moment. Fifty five the talk
station would and
Brian Thomas News
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