Episode Transcript
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Speaker 1 (00:00):
In federal court, the US Court of International Trade, in
my view, really did their job in saying, look, the
teriffs that President Trump has unilaterally put into place on
worldwide and retaliatory tariffs, the so called Liberation Day tariffs,
(00:22):
which are a minimum of ten percent on virtually every country,
and the terrifts focused on the issue of FENNO placed
on Canada, China, and Mexico. Those were dubbed by the
court as trafficking tariffs. That those were an are unconstitutional
and illegal under the law.
Speaker 2 (00:44):
Why is that? How did that case get determined the
way that it did.
Speaker 1 (00:50):
Let's talk about it with a law professor who was
involved in one of the two cases that were combined into.
Speaker 2 (00:57):
This particular case.
Speaker 1 (00:59):
Is a professor of law at George Mason University and
the B. Kenneth Simon Chair of Constitutional Studies at the
Cato Institute, the author of several books including Free to Move, Foot, Voting, Migration,
and Political Freedom. Professor Elias Sohman joins us here on KOA, sir,
(01:19):
welcome to the show.
Speaker 2 (01:20):
It's good to have you, Thank you for having me,
Thanks for coming on.
Speaker 1 (01:23):
So let's break this down. I kind of gave just
a brief synopsis of what was done sort of tell
us why the constitutional argument and the legal argument that
these tariffs don't fly was something that the.
Speaker 2 (01:40):
Court agreed with. Tell us about this case.
Speaker 3 (01:43):
Yes, the Court of International Trade unanimously ruled in our
favor last week with a panel with judges appointed by
both Democratic and Republican presidents, including one appointed by Trump
in his first term. And the reason why is that
the president was claiming a virtually limited power to impose
any tariffs he wants in any amount, against any country,
(02:05):
for any reason, at any time, for as long as
he wants. And the court ruled that the International Emergency
Economic Powers Act of nineteen seventy seven, which the President
said gave him this power, did not actually give it
to him. And they also said that if somehow the
law did give him that power, it would be unconstitutional
(02:25):
because Article went of the Constitution specifically gives the power
to impose tariffs to Congress, not to the president, and
an unlimited, unconstrained delegation of that power would ylate constitutional
constraints on how much of its authority Congress can delegate
the executive. So the law doesn't give him that power,
(02:47):
and it would be unconstitutional if it did, and sort.
Speaker 2 (02:52):
Of put a pin on this point.
Speaker 1 (02:53):
And this is a quote that was included in the
Courts decision from Federalists number forty eight, which is written
by James Madison, known as the father of the Constitution. Quote,
the powers properly belonging to one of the departments ought
not to be directly and completely administered by either of
the other departments. To me Professor Elias Soman, this basically
(03:17):
says that, look, if the power is given to Congress
to the legislative branch, they can't just go and say, hey,
executive branch, do whatever you want on this issue.
Speaker 2 (03:28):
We got your back.
Speaker 3 (03:30):
Yeah, that's right. So admittedly, the Supreme Court over the
last several decades has been kind of waxed on non delegation,
but they have said there have to be at least
some womits both liberal and conservative justice have said that.
And if there are any limits at all, then this
virtually total delegation of the power to tariff that Trump
is claiming here DAK cannot fly because this is sort
(03:53):
of the equivalent of Congress passing logists saying that the
president can impose Harris and every feel it's like, and
if anything violates the non delegation rule, then this have
to It.
Speaker 2 (04:05):
Almost sounds like the beginning of a joke, doesn't it.
Speaker 1 (04:07):
A Trump judge or Reagan judge and an Obama judge
walk into a US courtroom and leave unanimously striking down
President Trump's sweeping tariffs. But to me, that's actually very significant.
You have the strongwark conservative president of Ronald Reagan appointed
one of these three judges on the panel. You have
a Trump judge himself one of his appointees on the panel,
(04:30):
and an Obama judge, so a majority appointed by Republicans.
Speaker 2 (04:34):
Now, you never know.
Speaker 1 (04:35):
The Supreme Court shows us this that whether a judge
or a justice is going to be going in the
direction that you might expect, they would sort of ideologically
or breaking down. But to me, that should give some
confidence to average Americans that, Okay, this was a reasonable
decision considering the facts and the law.
Speaker 3 (04:56):
I think. So it's clear to sort of both conservative
and liberal judges were on the same page in the panel,
and the judge appointed by Trump. People familiar with the
Court of International Trade actually initially suggested to us, you know,
this was a bad draw for US because he had
been previously an associate of Robert Leitheider, who was a
(05:17):
major advisor to Trump in his first term, supporting very
protectionist policies. So disjudge, before being on the bench, had
a history of being associated with protectionist ideas himself, and
yet he still recognized, as did the other two judges,
that this kind of claim of virtually unlimited power had
no legitimate legal basis.
Speaker 1 (05:39):
Again, we're talking with professor Ilia Solman, who is at
the antonin Scalia School that you have a law school
that is at that institution in washing outside in Virginia.
Excuse me, professor, I want to ask you to bring
us up just speed on where this is at, because
(06:01):
I know that it has been appealed by the administration
and that this has sort of been put on hold
in terms of what the court ruled. So tell us
specifically what the court decided as far as a stay
or decided as far as the implications of the ruling,
and then where we're at as far as the stay
from additional appeals court.
Speaker 3 (06:24):
Yeah, So the case has been appealed to the US
Court of Appeals for the Federal Circuit, which is the
appublic court that has jurisdiction over the Court of International Trades.
With respect to the stay, I have to get into
some annoying legal gobbledy books, but in this case it
is actually legal gobbledy book that had some important practical significance.
(06:45):
So far. What the Federal Circuit has done is issued
what warriors call an administrative state, which is a very
short stay to give the court time to consider whether
there should be a longer stay pending appeal. If the
stay pending appe heel is issued as the government wants
it to be, then the Court of Intranstional Trade decision
(07:07):
will be put on hold, possibly for as long as
a pellet litigation continues, which could be many months. On
the other hand, if we defeat that motion for a state,
then the Court of Interrational Trade ruing will go into effect,
and then collection of the tariff will stop very soon,
and so will the enormous damage that they're inflixing on
(07:28):
the economy. Thousands of businesses, whytt our clients who depend
on imports, millions of consumers who face higher prices, and
also who are hurt by to slow down in economic
growth that is going to happen if these tariffs are
allowed to continue. So while the issue of a state
and what justifies a sayer doesn't justify it is a
(07:49):
highly technical legal issue, and you and I can talk
about so of the factors that go into it if
you want to. In this case, this legal technicality does
have a big significance for many millions of people because
it will determine whether they will get quick relief from
the tariffs or whether relief will have to wait possibly
for some months or even as much as a year
(08:10):
or more if the case. Also, what we get to
the Supreme Court.
Speaker 1 (08:13):
One thing I want to hit on with you, Professor Elias.
So we've just got a few minutes left. But the
Court in its ruling, and this is the court that
deals with these trade issues. Going back, for example, to
the Richard Nixon administration, he had a variation of a
tariff that was sort of its own brand of an
imbalance of trade that it was trying to address. It
(08:36):
was more of a monetary policy sort of matter. But
nevertheless the point is that the objective was to address
a trade imbalance, which is supposedly, at least for the
world wide and retaliatory tariffs. Professor, supposedly, the emergency basis
justifying those Liberation Day tariffs, well, the Nixon tariffs, as
(08:59):
I understand, it motivated Congress to pass more limits on
the president's unilateral authority regarding trade, and those very limits,
because they concern imbalance of trade, apply here as well.
Speaker 3 (09:14):
Yeah, so that decision on Nixon's tariffs was under the
predecessor's statue. To the statue to the issue here, it
was decided back in nineteen seventy five in the Yoshida case,
which was the subject of much debate between US and
our opponents in the litigation of this case, and also
(09:35):
was carefully considered in the Court of Intransflate Trade opinion.
The bottom line is it was not decided under i EPA,
but under the predecessor's statue, which, as you say, was broader.
In addition, even that decision, if you read the Yosheta decision,
it does not say the president could just impose any
terriff he wants. It rather said that the tariff power
(09:56):
was carefully limited. It had to be constrained by the
schedule of tariff set up by Congress and buy some
other factors. And it's specifically said in that decision as
in this more recent decision in our case than an
unlimited delegation of car powers the president would be unconstitutional.
So whatever you think of that case, it does not
(10:18):
provide a precedent somehow justifying you know what Trump is
trying to do.
Speaker 2 (10:22):
Now, unfortunately we're out of time. But one final question.
You sort of touched on this before, but where do
we go from here?
Speaker 3 (10:29):
So within the next few days we are likely to
have a decision on the motion for a stake, which
which whatever is resolved on that, there will also be
a decision on the merits, probably within a few weeks,
but maybe taking a bit longer from the Federal Circuit.
At that point, whoever loses could potentially appeal to the
Supreme Court, and the Supreme Court, of course, could decide
(10:52):
to take it or not take the case, as they
so choose, And it's always dangerous to predict most cases
that are that are petitioned today the courts just refused.
There is perhaps a hired an average state chance that
they might take this case because of its significance.
Speaker 1 (11:09):
I think that there is in this regard, and it
will be fascinating to watch Professor Ilias Sohman, Kudos to
you and the Liberty Justice Center on good work here.
And also Attorney's General had brought in the.
Speaker 2 (11:23):
FEDANL side of the case.
Speaker 1 (11:24):
And while I believe FEEDANEL is a massive concern, I'm
not sure that unilateral TERRFF authority to the president is
justified here even in that case, and I think the
court ruled it right there. But nevertheless, kudos to you
all for this case. I do think it was the
right one to bring in in this decision. And I
should note that that one case regarding these retaliatory tariffs
(11:45):
that you were involved in involved five different businesses that
were affected adversely by those teriffs. But Professor Solman of
George Mason University always great to talk with you, sir,
thanks so much for joining us today.
Speaker 3 (11:58):
Thank you for having me on once again.
Speaker 2 (12:00):
Professor Ilia Sohman joining us. Check out his recent book.
Speaker 1 (12:03):
This is especially relevant when it comes to the immigration
issue right now, Free to move foot, voting, migration, and
political freedom. I'm Jimmy Sangenberger in for Mandy Connell.
Speaker 2 (12:14):
Keep it here on KOA
In federal court, the US Court of International Trade, in
my view, really did their job in saying, look, the
teriffs that President Trump has unilaterally put into place on
worldwide and retaliatory tariffs, the so called Liberation Day tariffs,
(00:22):
which are a minimum of ten percent on virtually every country,
and the terrifts focused on the issue of FENNO placed
on Canada, China, and Mexico. Those were dubbed by the
court as trafficking tariffs. That those were an are unconstitutional
and illegal under the law.
Speaker 2 (00:44):
Why is that? How did that case get determined the
way that it did.
Speaker 1 (00:50):
Let's talk about it with a law professor who was
involved in one of the two cases that were combined into.
Speaker 2 (00:57):
This particular case.
Speaker 1 (00:59):
Is a professor of law at George Mason University and
the B. Kenneth Simon Chair of Constitutional Studies at the
Cato Institute, the author of several books including Free to Move, Foot, Voting, Migration,
and Political Freedom. Professor Elias Sohman joins us here on KOA, sir,
(01:19):
welcome to the show.
Speaker 2 (01:20):
It's good to have you, Thank you for having me,
Thanks for coming on.
Speaker 1 (01:23):
So let's break this down. I kind of gave just
a brief synopsis of what was done sort of tell
us why the constitutional argument and the legal argument that
these tariffs don't fly was something that the.
Speaker 2 (01:40):
Court agreed with. Tell us about this case.
Speaker 3 (01:43):
Yes, the Court of International Trade unanimously ruled in our
favor last week with a panel with judges appointed by
both Democratic and Republican presidents, including one appointed by Trump
in his first term. And the reason why is that
the president was claiming a virtually limited power to impose
any tariffs he wants in any amount, against any country,
(02:05):
for any reason, at any time, for as long as
he wants. And the court ruled that the International Emergency
Economic Powers Act of nineteen seventy seven, which the President
said gave him this power, did not actually give it
to him. And they also said that if somehow the
law did give him that power, it would be unconstitutional
(02:25):
because Article went of the Constitution specifically gives the power
to impose tariffs to Congress, not to the president, and
an unlimited, unconstrained delegation of that power would ylate constitutional
constraints on how much of its authority Congress can delegate
the executive. So the law doesn't give him that power,
(02:47):
and it would be unconstitutional if it did, and sort.
Speaker 2 (02:52):
Of put a pin on this point.
Speaker 1 (02:53):
And this is a quote that was included in the
Courts decision from Federalists number forty eight, which is written
by James Madison, known as the father of the Constitution. Quote,
the powers properly belonging to one of the departments ought
not to be directly and completely administered by either of
the other departments. To me Professor Elias Soman, this basically
(03:17):
says that, look, if the power is given to Congress
to the legislative branch, they can't just go and say, hey,
executive branch, do whatever you want on this issue.
Speaker 2 (03:28):
We got your back.
Speaker 3 (03:30):
Yeah, that's right. So admittedly, the Supreme Court over the
last several decades has been kind of waxed on non delegation,
but they have said there have to be at least
some womits both liberal and conservative justice have said that.
And if there are any limits at all, then this
virtually total delegation of the power to tariff that Trump
is claiming here DAK cannot fly because this is sort
(03:53):
of the equivalent of Congress passing logists saying that the
president can impose Harris and every feel it's like, and
if anything violates the non delegation rule, then this have
to It.
Speaker 2 (04:05):
Almost sounds like the beginning of a joke, doesn't it.
Speaker 1 (04:07):
A Trump judge or Reagan judge and an Obama judge
walk into a US courtroom and leave unanimously striking down
President Trump's sweeping tariffs. But to me, that's actually very significant.
You have the strongwark conservative president of Ronald Reagan appointed
one of these three judges on the panel. You have
a Trump judge himself one of his appointees on the panel,
(04:30):
and an Obama judge, so a majority appointed by Republicans.
Speaker 2 (04:34):
Now, you never know.
Speaker 1 (04:35):
The Supreme Court shows us this that whether a judge
or a justice is going to be going in the
direction that you might expect, they would sort of ideologically
or breaking down. But to me, that should give some
confidence to average Americans that, Okay, this was a reasonable
decision considering the facts and the law.
Speaker 3 (04:56):
I think. So it's clear to sort of both conservative
and liberal judges were on the same page in the panel,
and the judge appointed by Trump. People familiar with the
Court of International Trade actually initially suggested to us, you know,
this was a bad draw for US because he had
been previously an associate of Robert Leitheider, who was a
(05:17):
major advisor to Trump in his first term, supporting very
protectionist policies. So disjudge, before being on the bench, had
a history of being associated with protectionist ideas himself, and
yet he still recognized, as did the other two judges,
that this kind of claim of virtually unlimited power had
no legitimate legal basis.
Speaker 1 (05:39):
Again, we're talking with professor Ilia Solman, who is at
the antonin Scalia School that you have a law school
that is at that institution in washing outside in Virginia.
Excuse me, professor, I want to ask you to bring
us up just speed on where this is at, because
(06:01):
I know that it has been appealed by the administration
and that this has sort of been put on hold
in terms of what the court ruled. So tell us
specifically what the court decided as far as a stay
or decided as far as the implications of the ruling,
and then where we're at as far as the stay
from additional appeals court.
Speaker 3 (06:24):
Yeah, So the case has been appealed to the US
Court of Appeals for the Federal Circuit, which is the
appublic court that has jurisdiction over the Court of International Trades.
With respect to the stay, I have to get into
some annoying legal gobbledy books, but in this case it
is actually legal gobbledy book that had some important practical significance.
(06:45):
So far. What the Federal Circuit has done is issued
what warriors call an administrative state, which is a very
short stay to give the court time to consider whether
there should be a longer stay pending appeal. If the
stay pending appe heel is issued as the government wants
it to be, then the Court of Intranstional Trade decision
(07:07):
will be put on hold, possibly for as long as
a pellet litigation continues, which could be many months. On
the other hand, if we defeat that motion for a state,
then the Court of Interrational Trade ruing will go into effect,
and then collection of the tariff will stop very soon,
and so will the enormous damage that they're inflixing on
(07:28):
the economy. Thousands of businesses, whytt our clients who depend
on imports, millions of consumers who face higher prices, and
also who are hurt by to slow down in economic
growth that is going to happen if these tariffs are
allowed to continue. So while the issue of a state
and what justifies a sayer doesn't justify it is a
(07:49):
highly technical legal issue, and you and I can talk
about so of the factors that go into it if
you want to. In this case, this legal technicality does
have a big significance for many millions of people because
it will determine whether they will get quick relief from
the tariffs or whether relief will have to wait possibly
for some months or even as much as a year
(08:10):
or more if the case. Also, what we get to
the Supreme Court.
Speaker 1 (08:13):
One thing I want to hit on with you, Professor Elias.
So we've just got a few minutes left. But the
Court in its ruling, and this is the court that
deals with these trade issues. Going back, for example, to
the Richard Nixon administration, he had a variation of a
tariff that was sort of its own brand of an
imbalance of trade that it was trying to address. It
(08:36):
was more of a monetary policy sort of matter. But
nevertheless the point is that the objective was to address
a trade imbalance, which is supposedly, at least for the
world wide and retaliatory tariffs. Professor, supposedly, the emergency basis
justifying those Liberation Day tariffs, well, the Nixon tariffs, as
(08:59):
I understand, it motivated Congress to pass more limits on
the president's unilateral authority regarding trade, and those very limits,
because they concern imbalance of trade, apply here as well.
Speaker 3 (09:14):
Yeah, so that decision on Nixon's tariffs was under the
predecessor's statue. To the statue to the issue here, it
was decided back in nineteen seventy five in the Yoshida case,
which was the subject of much debate between US and
our opponents in the litigation of this case, and also
(09:35):
was carefully considered in the Court of Intransflate Trade opinion.
The bottom line is it was not decided under i EPA,
but under the predecessor's statue, which, as you say, was broader.
In addition, even that decision, if you read the Yosheta decision,
it does not say the president could just impose any
terriff he wants. It rather said that the tariff power
(09:56):
was carefully limited. It had to be constrained by the
schedule of tariff set up by Congress and buy some
other factors. And it's specifically said in that decision as
in this more recent decision in our case than an
unlimited delegation of car powers the president would be unconstitutional.
So whatever you think of that case, it does not
(10:18):
provide a precedent somehow justifying you know what Trump is
trying to do.
Speaker 2 (10:22):
Now, unfortunately we're out of time. But one final question.
You sort of touched on this before, but where do
we go from here?
Speaker 3 (10:29):
So within the next few days we are likely to
have a decision on the motion for a stake, which
which whatever is resolved on that, there will also be
a decision on the merits, probably within a few weeks,
but maybe taking a bit longer from the Federal Circuit.
At that point, whoever loses could potentially appeal to the
Supreme Court, and the Supreme Court, of course, could decide
(10:52):
to take it or not take the case, as they
so choose, And it's always dangerous to predict most cases
that are that are petitioned today the courts just refused.
There is perhaps a hired an average state chance that
they might take this case because of its significance.
Speaker 1 (11:09):
I think that there is in this regard, and it
will be fascinating to watch Professor Ilias Sohman, Kudos to
you and the Liberty Justice Center on good work here.
And also Attorney's General had brought in the.
Speaker 2 (11:23):
FEDANL side of the case.
Speaker 1 (11:24):
And while I believe FEEDANEL is a massive concern, I'm
not sure that unilateral TERRFF authority to the president is
justified here even in that case, and I think the
court ruled it right there. But nevertheless, kudos to you
all for this case. I do think it was the
right one to bring in in this decision. And I
should note that that one case regarding these retaliatory tariffs
(11:45):
that you were involved in involved five different businesses that
were affected adversely by those teriffs. But Professor Solman of
George Mason University always great to talk with you, sir,
thanks so much for joining us today.
Speaker 3 (11:58):
Thank you for having me on once again.
Speaker 2 (12:00):
Professor Ilia Sohman joining us. Check out his recent book.
Speaker 1 (12:03):
This is especially relevant when it comes to the immigration
issue right now, Free to move foot, voting, migration, and
political freedom. I'm Jimmy Sangenberger in for Mandy Connell.
Speaker 2 (12:14):
Keep it here on KOA
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