Episode Transcript
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Speaker 1 (00:00):
We're going to talk about the intersection of law and tariffs.
Careful listeners to this show know that this is an
area I care a lot about. You know what I
think about most of Trump's tariffs. I'm not going to
get into all that right now. But a whole separate
question from whether or not they are good policy is
whether or not they are legal. I have an opinion
(00:21):
that you probably know, but I'm not going to deal
with that right now. Joining us to talk about his
opinion and his organization's opinion and his client's opinion is
Andrew Morris, who is senior litigation counsel at NCLA, the
New Civil Liberties Alliance. We've had multiple guests from NCLA
on the show in recent years. So Andrew Morris, welcome
(00:45):
to KOWA. It's good to have you here.
Speaker 2 (00:49):
Thank you, Ross, thanks for having me.
Speaker 1 (00:50):
So I'd like to talk to you about two things,
but you can pick which one you want to talk
about first. So you filed the first. You filed the
first case challenging Trump administration's legal authority to impose most
of these tariffs in federal court. That was simplified, and
then more recently you find it you filed an amicus
brief in a case where you're not the lead, you
(01:13):
can talk about one or the other, or you can
combine them as you wish.
Speaker 3 (01:19):
Sure it be happy to well, I'll start with the
first where you started, And we did file the first
case challenging these tariffs, that is, these emergency tariffs, and
we filed them briefly. Not because our organization has a
view on tariffs. We're not really taking a position, not
taking a position on tariff policy at all. Our concern
(01:41):
was that this president has ordered tariffs not by going
through the hoops that Congress set out in a lot
of detailed tariff laws, but by using an emergency statute
that no president has ever used before. And we have
concerns with the executive and overreaching by using these general
sort of emergency statutes to get around restrictions in the law.
(02:05):
And here, to finish up on your first point, ross Uh,
the Constitution places tariffs completely in Congress's lap. They're completely
in Congress's control, so the president can do only what
Congress permits them to do. So our concern is protecting
the role of Congress and their control and the role
of the president.
Speaker 2 (02:25):
That's why we got involved in the first place.
Speaker 1 (02:27):
Okay, So before we go to the amicust brief question,
let let's stick with Let's stick with this. I'm going
to play President Trump's attorneys. Okay, sure, Okay, but Andrew,
we are acting under authority delegated to the executive branch
by Congress. So what's the problem.
Speaker 3 (02:49):
Well, the problem is that you don't your client. The
president doesn't have authority delegated from Congress. The President has
cited a statute that gives him a authority in case
of foreign threats, to respond to emergencies by imposing sanctions.
He can freeze assets, he can have a he can
block trade with Russia or with Iran. But it doesn't
(03:12):
permit him to tax Americans by imposing a tariff. It
doesn't use the word tariff. When Congress wants to permit
the president order tariffs, it has a lot of laws
that use the words tariffs and duties. This statute says
the president can respond to an emergency, but it does
not permit him to order tariffs. That's the mistake. That's
the basis of the whole problem here.
Speaker 1 (03:34):
Okay, I'll move away from being Trump's lawyer for a second.
So it sounds like there are two primary arguments, although
maybe for you, maybe one is more primary than the other.
But it sounds like to challenge Trump's use of this
particular law, the Emergency Economic Powers Act or the International
Emergency Economic Powers Act, it sounds like there's two potential
(03:56):
avenues to challenge. One is, what's the definition of an emergency?
Is this you know, is it actually an emergency? If
you know, there's flow of fentanyl from some country to
our country and it's been going on for ten years,
is that an emergency? And then the other question is,
even if it is an emergency, does the law give
you the authority to use tariffs as a remedy? So
(04:18):
are those both aspects of the challenge or are you
only focusing on the second one?
Speaker 2 (04:24):
No, you're exactly right.
Speaker 3 (04:25):
Those are those are the two pieces of the kind
of the issues in these cases. And you're also right,
we are challenging only the second, and that's a simpler challenge.
The question of what's an emergency, As you're kind of implying,
you're exactly right, get does kind of raise questions about, well,
is that presidential judgment at some point?
Speaker 2 (04:42):
What's an emergency?
Speaker 3 (04:44):
So We put that aside, and we said, even if
there's an emergency, Congress, all Congress said was you can
do things like composed sanctions and address foreign threats.
Speaker 2 (04:53):
As the law says.
Speaker 3 (04:55):
It doesn't say you're allowed to start imposing taxes.
Speaker 2 (04:58):
Okay, So that's what we stick with. Second point.
Speaker 1 (05:00):
All right, So I'm looking right now at a filing
in the US Circuit Court of Appeals for the Federal
Circuit and amarchist brief, and it is signed by you
as amicust brief in support of the plaintiffs in a
different case called Vos Selections and some others against President
(05:21):
Trump and some others. So tell us what is in
this amicus especially brief, especially to the extent that it
might be any different from what you just described, you know,
or is it is exactly the same or is there
some new stuff here?
Speaker 3 (05:38):
It is exactly the same as we described, with additional
kind of background about why it makes sense to it
adds some additional history and some things that your listeners
won't want to kind of get into today. But that's
how we filed that additional brief. The case we filed
in the Vos Selections is another case that raises very
similar challenges and that's gone faster than our case, so
(05:59):
that's now on appeal. The court in that case, at
the trial level ruled against the tariffs, struck them down.
Speaker 2 (06:07):
We think they should have visioned a broader ruling.
Speaker 3 (06:09):
So as an as an amicus, as a friend of
the court, we file this to lend to lend support
to the to striking down the tariffs, to protecting the
trial court order to strike sit down, and give additional
background to the court. That's why we filed that to
help out in this other case that's now on appeal.
Speaker 1 (06:28):
We are talking with Andrew Morris, Senior Litigation Council at
ncl A New Civil Liberties Alliance in CLA dot org.
So will all such cases go to this particular court?
I think even people who follow law a little bit
closely might not actually have heard of the Court of
(06:50):
Appeals for the Federal Circuit, which is not the same
as the Court of Appeals for the DC Circuit. So
do they all go here before they go to the
Supreme Court.
Speaker 3 (07:00):
It is confusing even for lawyers, and actually that's one
of the issues that parties are fighting over. There's a
split where some courts have decided these cases should be
decided in this court that goes to the federal Circuit,
whereas a court in Washington decided that this case can
be decided in the district. The trial level court in
(07:21):
Washington then go to a different court of appeals, which
is the Court of Appeals for the District Columbia Circuit.
There's actually a split even about where it should be decided.
But at the moment, there are two cases on appeal
on two different appellate courts, And the gist of what
has happened so far is two courts of bission to
ruling on what we call the merits gotten to the
point of the case, and they both ruled against the
(07:43):
administration and said that the tariffs are unlawful for slightly
different reasons. But that's where that's what's teed up, and
so both cases are on appeal, where if the parties
who won below went on appeal, the tariffs continue to
be ruled unlawful.
Speaker 2 (08:00):
Now's we're waiting to see what will happen.
Speaker 1 (08:02):
At what point if the Trump administration loses, at what
point would it be at a court that has the
authority to order them to stop? Or do you think
that's not until the Supreme Court.
Speaker 2 (08:16):
Well, that's also an issue that the parties are fighting over.
Speaker 3 (08:20):
At the Court of the Peoples, the level there's broader
reach given the nature of the two courts of appeals
that both have special national standing, So that's an open
question what the effect would be. But the Federal Circuit,
for example, was designed to be the national court for
trade issues.
Speaker 2 (08:40):
That's why the government wants to be there.
Speaker 3 (08:41):
So there's a strong argument that should be a nationwide
ruling against the administration.
Speaker 2 (08:47):
So we will see, and we'll know in a month
or two. There are oral arguments coming.
Speaker 3 (08:52):
Up, But the whole point of that court was for
it to be a nationwide court until there should be
a nationwide relief. It seems logical, but that's that's still
being fought over.
Speaker 1 (09:02):
What do you think the chances are that either the
Federal Circuit rules in favor of your plaintiffs or the
plaintiffs who you're siding with in your amateurst brief. What
do you think the odds are that that court rules
for you guys, and then the Supreme Court refuses to
(09:23):
hear the case, leaving that standing as as it is.
Speaker 3 (09:29):
Well that that gets into the progagnasty, you know. That's
that's what a lot of lawyers spend time arguing about.
The conventional wisdom, which seems to have a lot of
a lot of force here is that this is a
very important case about presidential power. This could apply to
other presidents who try to use emergency statutes for other reasons.
So there seems to be a strong likelihood that the
(09:52):
Supreme Court will find this to be the kind of
case that it would take that that seems right to me.
To give a little bit of color. The next president
from another party could come in and declare a climate
emergency and say, well, of course that has foreign implicated
foreign policy implications. It affects the whole world, and so
there's a climate emergency, I'm going to start issuing various orders.
Speaker 2 (10:13):
Based on that emergency.
Speaker 3 (10:14):
So this has this case has far reaching implications beyond tariffs.
Speaker 1 (10:19):
Okay, last question for you, and again I'm not a lawyer,
but I think as you gather, I probably think about
this stuff a fair bit and have reasonable questions most
of the time. So I don't know where this is.
Speaker 3 (10:33):
In the.
Speaker 1 (10:36):
Thinking about it as a full case going for the
merits versus an early kind of injunction. And what I'm
getting at here is it seems to me that to
the extent that Trump is imposing tariffs, whether or not
they're illegal, but they are definitely causing harm, and for
(10:57):
some businesses it may be it may be irrepairable harm.
And it seems to me that a lot of times
courts do issue injunctions saying, Okay, the government can't do
this for now, because if the government loses, and we
think they will, then the harm that will have been
(11:17):
done in the interim wall we're hearing the case could
be the kind of harm that in this kind of
case would put businesses out of business. And therefore we're
going to say, for now, you can't impose the tariffs.
But that doesn't seem to be happening. So so what
is this like kind of potentially leading to an injunction,
a preliminary injunction, or is this only possibly leading to
(11:39):
a full case on the merits and leaving the tariffs
in place until then. Sorry for the long question.
Speaker 3 (11:46):
Now that's a really perceptive question because a couple thanks
running together. The ultimate answer is that this case was
a pretty clear The question didn't have to get into
some of these issues that come up from a preliment
in junction case is so the courts were able to
rule in the merits but didn't issue a preliminary injunction,
(12:08):
but went but did did strike them, did strike the
at the trial court level, did strike the terrorists down,
declare them un lawful.
Speaker 2 (12:16):
But those order the order them in the Federal Circuit.
Speaker 3 (12:19):
For example, has been stayed until the Federal Circuit rules,
so they don't get to your question. Uh, so we've
skipped past that that preliminent and jumpson phase and gotten
a ruling on the merits from the Court of the
National Trade They narrow rule of Your point is exactly
right that these are devastating, particularly the small businesses who
(12:42):
in a year, who cares if they can get their
teriffs back that they pay because they've run.
Speaker 1 (12:46):
Out of money'll be gone by then they've run out
of customers, right, And so I mean, is there a
move by n c l A or by whoever is
representing the clients and the other case that you just
issued an amatest prete fun is and is there anything
you can do to get the tariffs and joined in
the meantime or is what you're doing already the fastest
(13:06):
possible thing to try to get the if it ends
up being ruled illegal, and I hope they are ruled illegal,
and I think they probably will be. But like you know,
what can you do to make sure your clients aren't
put out of business in the meantime?
Speaker 3 (13:20):
No, you raised the phenomenal central point, and there are
with the cases that are up on appeal now the
parties have fought over the state, particularly in the Court
of International Trade and then the Federal Circuit, making exactly
your arguments. You're exactly right saying this. The Court of
National Trade said these terriffts are unlawful, they should stop
(13:42):
now rather than require the small businesses and others.
Speaker 2 (13:46):
To keep paying them.
Speaker 3 (13:48):
But the Federal Circuit reached out and stayed them anyway
over exactly your objections. Now, there are other litigation out there,
including our case, that are that have been stayed by
the Federal Circuit. I'm sorry by the Courter National Trade.
While these others are on a pill. We're trying to
dislodge them and move them forward, so we'll see what happens.
But you put your finger on exactly what is a
(14:10):
we think a major central injustice and all these these cases,
which is courts have already decided these are unlawful. Our
clients are small businesses, for example, and they're not They
can't go to the White House and cut a deal,
or they don't have capital resources to look for sources
in other countries. They're running out of top and so
(14:32):
you put your finger on what we think is a
big injustice in the way these cases are being handled.
Speaker 1 (14:37):
Andrew Morris is Senior Litigation Council at n c l
A n c L A Legal dot org. N c
l A Legal dot org. I think I might have
given the wrong U r L earlier in c l
A legal dot org to learn more and a great conversation.
Thanks so much for taking time. We will definitely keep
in touch. I'm extremely interested in these particular cases.
Speaker 2 (15:00):
Happy to help you again.
Speaker 1 (15:01):
All right, Thank you, Andrew,