WEBVTT - SCOTUS Dubious About Trump Tariffs 0:00:02.759 --> 0:00:07.000 This is Bloomberg Law with June Grosseo from Bloomberg Radio. 0:00:08.880 --> 0:00:11.480 It's one of the most important cases of the term, 0:00:11.840 --> 0:00:16.480 a test of presidential power where President Trump's signature economic 0:00:16.600 --> 0:00:21.200 policy is at stake. After nearly three hours of oral arguments, 0:00:21.480 --> 0:00:25.200 it appears that a majority of Supreme Court justices across 0:00:25.200 --> 0:00:29.840 the ideological spectrum are skeptical that Trump has the legal 0:00:29.880 --> 0:00:34.000 authority to impose billions of dollars of tariffs on goods 0:00:34.000 --> 0:00:38.240 from nearly every country. Chief Justice John Roberts and Justice 0:00:38.320 --> 0:00:42.920 Sonya Sotomayor said, the tariffs are taxes, and the Constitution 0:00:43.159 --> 0:00:45.320 gives taxing power to Congress. 0:00:46.120 --> 0:00:49.720 It's a congressional power, not a presidential power to tax. 0:00:50.360 --> 0:00:52.800 And you want to say tarifts are not taxes, but 0:00:52.920 --> 0:00:57.920 that's exactly what they are, degenerating money from American citizens revenue. 0:00:58.680 --> 0:01:03.000 The vehicle is in position of taxes on Americans, and 0:01:03.360 --> 0:01:05.400 that has always been the core power of Congress. 0:01:06.120 --> 0:01:10.160 Trump is arguing that an emergency powers law, the International 0:01:10.200 --> 0:01:14.920 Emergency Economic Powers Act, or AIPA, authorizes him to collect 0:01:14.920 --> 0:01:18.240 tens of billions of dollars in tariffs a month. AIPA 0:01:18.280 --> 0:01:22.360 gives the president an array of tools to address national security, 0:01:22.560 --> 0:01:27.760 foreign policy, and economic emergencies. But it doesn't mention tariffs, 0:01:28.160 --> 0:01:31.559 something many of the justices work quick to point out. 0:01:32.040 --> 0:01:35.560 Here are the Chief Justice and Justice Katanji Brown Jackson. 0:01:36.360 --> 0:01:39.399 But when I read the statute, it is telling the 0:01:39.440 --> 0:01:43.760 president exactly what he can do investigate, block during the 0:01:43.800 --> 0:01:48.639 pendency of an investigation, regulate, direct, and compel, mullify, void, 0:01:48.720 --> 0:01:51.800 prevent or prohibit. And I guess what is a little 0:01:51.840 --> 0:01:55.080 concerning to me is that your argument suggests that we 0:01:55.080 --> 0:01:59.560 should see the word imposed, the phrase impose tariffs in 0:01:59.640 --> 0:02:02.240 that se series of things that the president could do. 0:02:02.720 --> 0:02:03.880 We don't see that word. 0:02:04.720 --> 0:02:08.560 Well, but the exercise of the power is to impose tariffs, right, 0:02:09.200 --> 0:02:11.280 and the statute doesn't use the word tariffs. 0:02:11.840 --> 0:02:16.280 And Justice Neil gorse At, a Trump appointee, expressed alarm 0:02:16.360 --> 0:02:20.000 at giving seemingly limitless power to presidents. 0:02:20.560 --> 0:02:23.400 So Congress is a practical matter. Can't get this power 0:02:23.480 --> 0:02:25.840 back once it's handed it over to the President's a 0:02:25.880 --> 0:02:30.560 one way ratchet towards the gradual but continual accretion of 0:02:30.639 --> 0:02:33.720 power in the executive branch and away from the people's 0:02:33.760 --> 0:02:34.799 elected representative. 0:02:35.000 --> 0:02:38.720 My guest is constitutional law expert Michael Dorff, a professor 0:02:38.720 --> 0:02:41.880 at Cornell Law School. Mike, give me your broad take 0:02:41.919 --> 0:02:43.080 on the oral arguments. 0:02:43.440 --> 0:02:44.760 It was difficult to handicap. 0:02:45.160 --> 0:02:48.200 It's clear to me that the three Democratic appointees are 0:02:48.200 --> 0:02:51.760 going to vote to a firm and rule for the plaintiffs. 0:02:51.880 --> 0:02:55.040 Justice Thomas and almost certainly Justice Alito are going to 0:02:55.320 --> 0:02:58.960 rule for the government. I think Justice Kavanaugh pretty strongly 0:02:59.040 --> 0:03:03.000 leans towards the government, and then the Chief Justice and 0:03:03.280 --> 0:03:07.440 Justices Gorosach and Barrett are harder to handicap because Gorisiach 0:03:07.480 --> 0:03:11.720 and Barrett especially asked difficult questions of each side, and 0:03:11.880 --> 0:03:13.720 I kind of have a theory of what each one 0:03:13.720 --> 0:03:17.200 of them is thinking, but it's it's very difficult to say. 0:03:17.280 --> 0:03:19.639 So I come out of this really quite uncertain as 0:03:19.639 --> 0:03:20.440 to what they're going to do. 0:03:21.040 --> 0:03:24.600 So a good deal of the argument consisted of an 0:03:24.639 --> 0:03:30.280 analysis of the text of AIPA. Several justices quizzed the 0:03:30.400 --> 0:03:34.400 Solicitor General on the text not mentioning tariffs. How do 0:03:34.440 --> 0:03:36.760 you think the Solicitor General handled that? 0:03:37.760 --> 0:03:40.760 Yeah, I thought He's stuck with his core argument, which 0:03:41.000 --> 0:03:44.520 has a number of moving pieces. The first is that 0:03:44.880 --> 0:03:50.760 the term regulate importation can include tariffs just as a 0:03:50.760 --> 0:03:52.080 matter of ordinary language. 0:03:52.120 --> 0:03:53.000 That's certainly true. 0:03:53.560 --> 0:03:58.200 He also relied on historical understandings dating back to the 0:03:58.240 --> 0:04:02.160 founding for some reason to think that that's how the 0:04:02.200 --> 0:04:06.600 word was understood. And he has a couple of modern cases. 0:04:06.600 --> 0:04:09.840 He's got the Nixon president under the Trading with the 0:04:09.920 --> 0:04:14.240 Enemy Act, and he's got another related case. I thought 0:04:14.280 --> 0:04:18.320 he had the hardest time dealing with what is really 0:04:18.360 --> 0:04:23.600 the plaintiff's best argument, and that is that when Congress 0:04:23.720 --> 0:04:28.520 has wanted to give the president tariff authority, it has 0:04:28.600 --> 0:04:33.320 said so expressly in lots of other statutes, and so 0:04:33.480 --> 0:04:37.320 the omission in this statute does seem to be rather glaring. 0:04:37.920 --> 0:04:42.240 So I thought he did a perfectly fine job basically 0:04:43.000 --> 0:04:45.000 rehashing what was in his brief. 0:04:46.279 --> 0:04:49.279 It seemed to me like some of the justices weren't 0:04:49.320 --> 0:04:56.120 satisfied with Sour's answers, particularly Justice Amy Coney Barrett. You know, 0:04:56.240 --> 0:04:59.280 she kept pressing him and just a soda mayor said 0:04:59.320 --> 0:05:00.000 answer the question. 0:05:01.040 --> 0:05:01.280 Yeah. 0:05:01.279 --> 0:05:04.479 So that was an important exchange, and I thought that 0:05:05.080 --> 0:05:08.080 Justice Barrett wasn't being quite fair to his argument, right, 0:05:08.120 --> 0:05:11.480 which was he said not only that did Nixon impose this, 0:05:11.880 --> 0:05:16.479 but a Court of Appeals found that Nixon had the authority. 0:05:16.480 --> 0:05:18.760 It's true of the Supreme Court denied assert and then 0:05:18.839 --> 0:05:21.680 Justice Barrett said, well, it's just an intermediate court of appeals. Well, 0:05:21.720 --> 0:05:25.880 that's true, But his argument is not that that ruling 0:05:26.279 --> 0:05:28.880 is binding on the Supreme Court. His argument is that 0:05:29.200 --> 0:05:32.680 when Congress copied the language from the Trading with the 0:05:32.800 --> 0:05:38.800 Enemy Act into the International Economic Emergency's Powers Act, it 0:05:39.000 --> 0:05:42.680 was aware that President Nixon had used this for tariff 0:05:42.720 --> 0:05:45.000 authority and that that had been affirmed, and so we 0:05:45.000 --> 0:05:49.120 should attribute to Congress an intention to carry over the 0:05:49.720 --> 0:05:52.920 meaning that had recently been on display. 0:05:53.200 --> 0:05:54.480 That's not a bad argument. 0:05:54.680 --> 0:05:58.480 My own view is that it should fail because even 0:05:58.520 --> 0:06:02.839 a good textualist care about how Congress has used the 0:06:02.960 --> 0:06:06.440 terms elsewhere, but just sort of standing on its own. 0:06:06.800 --> 0:06:11.800 I thought his reliance on the Nixon president was pretty sensible. 0:06:12.360 --> 0:06:16.039 Justice Neil Gorsuch question the Solicitor General for something like 0:06:16.120 --> 0:06:19.760 ten minutes. Some of the questioning seemed a little bit hostile. 0:06:20.080 --> 0:06:23.200 He questioned him about the extent of the authority Trump 0:06:23.360 --> 0:06:26.680 is claiming, saying, well, then can Congress just say we're 0:06:26.720 --> 0:06:29.960 tired of legislating or hand it off even the power 0:06:30.200 --> 0:06:32.839 to declare war to the president. I mean, he seemed 0:06:33.200 --> 0:06:36.520 more aggressive than most of the other justices in questioning 0:06:36.680 --> 0:06:37.760 the Solicitor General. 0:06:38.440 --> 0:06:40.040 Yeah, I think that's right, and I think it lines 0:06:40.120 --> 0:06:45.480 up with Justice Garsuch's priors, which are very suspicious of 0:06:45.600 --> 0:06:49.840 broad delegations to the executive branch. He actually got a 0:06:49.839 --> 0:06:54.159 concession out of the Solicitor General. The SG sort of 0:06:54.240 --> 0:06:58.599 began by saying that neither the non delegation. 0:06:58.240 --> 0:07:00.680 Doctrine nor the Major. 0:07:00.080 --> 0:07:05.520 Questions doctrine applies with respect to the president's foreign affairs. 0:07:05.279 --> 0:07:07.479 Power, and pressing him. 0:07:07.600 --> 0:07:10.400 Justice Grocich got him to back off of that when 0:07:10.400 --> 0:07:14.080 he said, well, what if Congress just gave the president 0:07:14.320 --> 0:07:17.440 all of its power to regulate foreign commerce, you know, 0:07:17.560 --> 0:07:20.000 do whatever you want. We're sick of it all of 0:07:20.000 --> 0:07:22.600 its power more generally, you know, could he do anything 0:07:22.880 --> 0:07:25.800 at all in international affairs? And soer basically said, well, no, 0:07:25.840 --> 0:07:27.400 that would be different in so of coursious. 0:07:27.080 --> 0:07:28.880 How could it be different? You said that it doesn't 0:07:28.880 --> 0:07:29.480 apply at all in. 0:07:29.480 --> 0:07:32.200 Foreign affairs, And so then I thought Justice Garsuch did 0:07:32.280 --> 0:07:33.960 a nice job of saying, So, what you're saying is 0:07:33.960 --> 0:07:38.640 it applies more deferentially. But the intelligible principal test, which 0:07:38.760 --> 0:07:42.960 Justice Gorsuch doesn't like, is already very deferential. You're going 0:07:43.040 --> 0:07:46.360 to say it's even more deferential than that. So based 0:07:46.400 --> 0:07:51.600 on that exchange, I initially had Justice Garsage in the 0:07:51.640 --> 0:07:55.920 sort of plaintiff's column, but then on the other side 0:07:55.960 --> 0:08:01.000 he was pressing Neil Kattil very hard on us. The text, right, 0:08:01.120 --> 0:08:03.440 So if you just look at the text, it does 0:08:03.480 --> 0:08:08.080 seem to encompass tariff authority. And there in the same 0:08:08.120 --> 0:08:10.120 way that I thought it was interesting that the SG 0:08:10.680 --> 0:08:13.800 backed off a little bit. I thought Katyo would have 0:08:13.840 --> 0:08:16.120 been better served if he had backed off a little 0:08:16.120 --> 0:08:18.480 bit and just simply said, yeah, you're right, if you 0:08:18.480 --> 0:08:22.040 look at the text in isolation, it does encompass this power. 0:08:22.120 --> 0:08:25.400 But that's never how the discourt looks at datutory text, 0:08:25.440 --> 0:08:26.559 and it shouldn't in this case. 0:08:27.200 --> 0:08:28.880 Well, let me ask you this, as some of the 0:08:28.960 --> 0:08:32.120 justices porning out Congress knew how to write the word tariff. 0:08:32.120 --> 0:08:34.959 They wanted tariffs to be included in all these other powers, 0:08:35.000 --> 0:08:36.280 why not just put it there? 0:08:36.640 --> 0:08:36.840 Right? 0:08:36.920 --> 0:08:39.199 I think that is sort of the core common sense 0:08:39.320 --> 0:08:41.640 argument that the plaintiffs have, and it's a very good one, 0:08:41.880 --> 0:08:43.640 and I thought it was going to prevail. That. What 0:08:43.920 --> 0:08:46.280 leads me to be a little less certain about that 0:08:46.440 --> 0:08:50.080 is the turn the argument took near the end of 0:08:50.400 --> 0:08:55.600 Katyo's presentation, when a combination of Justice Barrett and some 0:08:55.640 --> 0:08:59.400 of her colleagues pressed on what she said she wasn't 0:08:59.440 --> 0:09:04.160 calling but really was calling a greater includes the lesser power, right, 0:09:04.160 --> 0:09:07.560 which is, well, look, Congress clearly gave the president the 0:09:07.600 --> 0:09:11.480 power to ban all trade with any and all foreign countries, 0:09:11.520 --> 0:09:14.120 because that's the plain meaning of some of the terms 0:09:14.120 --> 0:09:17.280 that are in the statute, and that's an enormous delegation. 0:09:17.360 --> 0:09:21.800 If Congress did that, why would Congress want to deny 0:09:21.960 --> 0:09:24.839 to the president the much lesser power to just say, well, 0:09:24.880 --> 0:09:26.600 you can have trade with us, but it's going to 0:09:26.600 --> 0:09:30.520 be subject to some tariff and that Therefore, maybe Congress 0:09:30.559 --> 0:09:33.000 didn't mean to exclude tariffs. Maybe they just thought it 0:09:33.040 --> 0:09:36.160 was encompassed within the term regulate. So that's what gave 0:09:36.200 --> 0:09:39.400 me some pause, because that's also not a crazy argument. 0:09:39.760 --> 0:09:41.600 I do think, and I'm going to put this on 0:09:41.679 --> 0:09:45.280 my blog tomorrow, that the way out of that, at 0:09:45.360 --> 0:09:48.920 least for Justice Gorsuch, may be that in so far 0:09:49.000 --> 0:09:52.480 as this law seems to give the president the power 0:09:52.520 --> 0:09:56.040 to declare an emergency whenever he wants and then to 0:09:56.880 --> 0:10:00.840 ban all foreign trade or to do some subset of it. 0:10:01.000 --> 0:10:04.000 That's a violation of the non delegation doctrine. And therefore 0:10:04.040 --> 0:10:06.520 you can't read the statute that broadly, and we can 0:10:06.559 --> 0:10:09.319 deal with a ban on all trade when that comes up, 0:10:09.920 --> 0:10:13.559 or you can say the president's declaration of an emergency 0:10:13.679 --> 0:10:17.319 is subject to some substantial review by the Supreme Court. 0:10:17.640 --> 0:10:19.439 There was a point earlier here in the argument when 0:10:19.520 --> 0:10:23.080 Justice Kagan was saying, we're going to review only very deferentially, 0:10:23.120 --> 0:10:25.480 the president's decision that there's an emergency. 0:10:25.960 --> 0:10:29.280 But you know, I mean, let's be frank here, there 0:10:29.320 --> 0:10:32.440 is no emergency. At one point sour said, well, you know, 0:10:32.440 --> 0:10:34.920 there's an existential threat, and it's not clear what he 0:10:35.000 --> 0:10:36.720 was talking about. Then he said, well, fentanyl is an 0:10:36.720 --> 0:10:39.680 existential threat. Well, even if fentyl is an existential threat, 0:10:39.679 --> 0:10:41.200 and of course it is to people who are at 0:10:41.320 --> 0:10:42.559 risk of overdosing on. 0:10:42.559 --> 0:10:46.360 It, there's no indication whatsoever that that was a legitimate 0:10:46.480 --> 0:10:50.000 justification for the tariffs on Canada, which is one of 0:10:50.040 --> 0:10:51.680 the reasons why it was invoked. You know, we get 0:10:51.800 --> 0:10:54.720 less than one percent of fentanyl from Canada, and you 0:10:54.720 --> 0:10:57.800 know Soalar also pointed to the fact that when President 0:10:57.840 --> 0:11:01.720 Trump was recently in Asia, he in Jijenping agreed to 0:11:01.800 --> 0:11:06.640 some reduction in Chinese precursor chemicals coming over for feednyl. 0:11:06.960 --> 0:11:07.679 You know, that's not. 0:11:07.760 --> 0:11:10.840 A trade agreement, it was an agreement to discuss. So 0:11:10.960 --> 0:11:14.400 there's all of this stuff in the background that seems 0:11:14.640 --> 0:11:17.520 kind of detached from reality, and that the background as 0:11:17.520 --> 0:11:20.000 well the president's you know, conducting foreign policy. The president 0:11:20.160 --> 0:11:24.360 is you know, just imposing tariff's willy nilly because he 0:11:24.440 --> 0:11:27.600 doesn't like, you know, some commercial that was run by 0:11:27.600 --> 0:11:31.079 the government of Ontario, because he doesn't like that Brazil 0:11:31.160 --> 0:11:33.679 is enforcing the law against Bolsonaro, whom he sees as 0:11:33.679 --> 0:11:38.600 a kindred spirit. The notion that this president is exercising 0:11:38.600 --> 0:11:42.840 this power in any way that remotely relates to legitimate 0:11:42.880 --> 0:11:46.680 emergencies is just fanciful. And to me, the question is like, 0:11:46.920 --> 0:11:49.840 will that break through at all or are they going 0:11:49.920 --> 0:11:52.960 to do what they did in the immunity case and 0:11:53.040 --> 0:11:54.880 pretend that Trump is a normal president. 0:11:55.280 --> 0:11:58.920 Coming up next, I'll continue this conversation with Cornell Law 0:11:58.960 --> 0:12:02.960 professor Michael, or what about the major questions doctrine that 0:12:03.040 --> 0:12:06.800 the Court used to block many of President Joe Biden's initiatives. 0:12:07.040 --> 0:12:10.840 This is bloomberg. It's the biggest legal test yet of 0:12:10.920 --> 0:12:15.320 President Donald Trump's economic agenda, and a majority of Supreme 0:12:15.360 --> 0:12:19.960 Court justices signaled some skepticism today about his power to 0:12:20.160 --> 0:12:25.440 unilaterally impose sweeping tariffs. Trump says his tariffs are authorized 0:12:25.520 --> 0:12:30.680 under the nineteen seventy seven International Emergency Economic Powers Act, 0:12:30.920 --> 0:12:34.520 which gives him broad authority to set and change import 0:12:34.600 --> 0:12:39.240 duties in an emergency. But Justice Elena Kagan questioned the 0:12:39.280 --> 0:12:44.720 Solicitor General John Sower about the declared emergencies, referring to 0:12:44.760 --> 0:12:47.920 the many cases the administration has brought to the Court 0:12:48.040 --> 0:12:51.439 on an emergency basis since Trump took office. 0:12:51.920 --> 0:12:55.240 And you know, we've had cases recently which deals with 0:12:55.280 --> 0:12:57.559 the president's emergency powers. And it turns out we're in 0:12:57.640 --> 0:13:01.719 emergencies everything all the time, about half the world. Well, 0:13:01.760 --> 0:13:05.120 this particular emergency is particularly existential, as Executive Order fourteen 0:13:05.160 --> 0:13:07.160 two five seven says, And of course no one disputes 0:13:07.200 --> 0:13:09.480 the existential nature of the federal crisis. 0:13:09.559 --> 0:13:12.880 I've been talking to Cornell Law School Professor Michael Darf, So, 0:13:13.120 --> 0:13:16.959 let's talk about the Major Questions doctrine, which came up 0:13:17.200 --> 0:13:20.800 over and over, and at one point Justice Gorsuch told 0:13:20.880 --> 0:13:24.680 Neil Katiau, the attorney for the small businesses, I don't 0:13:24.720 --> 0:13:28.400 think you can win without it. And Chief Justice John 0:13:28.480 --> 0:13:32.000 Roberts indicated that he saw the case as being governed 0:13:32.559 --> 0:13:34.800 by the Major Questions doctrine. 0:13:35.360 --> 0:13:35.560 Yeah. 0:13:35.600 --> 0:13:39.200 So the Major Questions doctrine originates in some cases a 0:13:39.200 --> 0:13:42.520 couple of decades ago, but it really took its current 0:13:42.559 --> 0:13:44.280 shape in a case from a few years ago called 0:13:44.320 --> 0:13:49.160 West Virginia against EPA. And the basic idea is that 0:13:49.200 --> 0:13:54.600 if you've got a statute that the federal executive brand 0:13:54.679 --> 0:13:59.840 or the president claims gives them the power to regulate 0:14:00.280 --> 0:14:04.079 some gigantic area, like a big portion of the economy 0:14:04.280 --> 0:14:09.319 or which is clearly going on here, then the president 0:14:09.720 --> 0:14:14.480 needs to point to specific authorization for what he's doing 0:14:14.559 --> 0:14:18.079 in the statute. It's a way of reading the statute 0:14:18.080 --> 0:14:22.680 to say, we're not going to presume that Congress delegated 0:14:23.280 --> 0:14:27.359 enormous power to the president unless Congress did so clearly. 0:14:27.880 --> 0:14:29.520 So, in lawyers. 0:14:29.080 --> 0:14:31.600 Speak, the Major Questions doctrine can be understood as a 0:14:31.680 --> 0:14:33.360 kind of clear statement rule. 0:14:34.480 --> 0:14:35.920 So that's the background. 0:14:35.920 --> 0:14:39.320 Now there's a there's a kind of technical debate between 0:14:40.000 --> 0:14:44.680 different justices about what exactly the major questions doctrine is. 0:14:45.200 --> 0:14:48.960 So Justice Barrett has said that she thinks it is 0:14:49.040 --> 0:14:52.840 simply an interpretive canon. That is to say, it's out there. 0:14:52.880 --> 0:14:56.000 It's a way of us figuring out what Congress actually 0:14:56.000 --> 0:15:01.520 intended in this statute, because you know, Congress statutes where 0:15:01.560 --> 0:15:04.640 they have, you know, meant to give all this power 0:15:04.640 --> 0:15:09.160 without saying explicitly. So it relates back to something Justice 0:15:09.280 --> 0:15:12.720 Scalia said in a much earlier case, which is, Congress 0:15:12.760 --> 0:15:16.160 doesn't hide elephants in mouseholes, right, just a basic idea 0:15:16.160 --> 0:15:19.800 of how you get at what Congress intended. That's one 0:15:19.880 --> 0:15:22.680 view of the major questions doctrine. Another view of the 0:15:22.720 --> 0:15:25.040 Major Questions doctrine is that it is a kind of 0:15:25.680 --> 0:15:32.280 subconstitutional way of implementing the non delegation doctrine, the notion 0:15:32.600 --> 0:15:36.200 that Congress can't give away its lawmaking power. It's got 0:15:36.200 --> 0:15:39.280 to provide an intelligible principle. And so if there's some 0:15:39.560 --> 0:15:44.880 very you know, monumental exercise of power, we're not going 0:15:44.920 --> 0:15:48.240 to see Congress as having given that to the president 0:15:48.680 --> 0:15:52.000 without explicit language, because the explicit language is what will 0:15:52.000 --> 0:15:55.360 provide the intelligible principle. In the absence of that, we 0:15:55.400 --> 0:15:57.800 will just assume the power hasn't been delegated. That's what 0:15:57.840 --> 0:15:59.840 I mean by saying that it's related to this constitutional 0:16:00.840 --> 0:16:05.440 So there's that debate. At one point, Neil Katyel seemed 0:16:05.480 --> 0:16:08.120 to lean into the Barrett position to say, well, it's 0:16:08.160 --> 0:16:10.280 just a matter of figuring out what Congress was up to. 0:16:10.800 --> 0:16:12.880 Doesn't really matter for this case that he can he 0:16:12.920 --> 0:16:16.120 can win regardless of what the nature of the Major 0:16:16.200 --> 0:16:20.400 Questions doctrine is. When just as Gorsuch said to him, 0:16:20.480 --> 0:16:23.000 I don't think you can win about the Major Questions doctrine. 0:16:23.280 --> 0:16:27.880 I think what he was getting at was that the statute, 0:16:28.000 --> 0:16:32.280 just taken at face value, uses the word regulate, which 0:16:32.440 --> 0:16:35.720 historically has, at least in some contexts, included the power 0:16:35.760 --> 0:16:39.160 to impose tariffs. I should say I think Justice Gorsach 0:16:39.200 --> 0:16:41.160 is wrong about that. I mean, he might be right 0:16:41.200 --> 0:16:44.680 as a prediction that, but I think he's wrong in that. 0:16:45.160 --> 0:16:49.560 I think Katyl has a good argument that we don't 0:16:49.600 --> 0:16:53.400 need the Major Questions doctrine, but we also don't. We 0:16:53.760 --> 0:16:57.160 never read a statute literally and in isolation. That is 0:16:57.200 --> 0:17:00.920 the text of the statute read against the backdrop of 0:17:01.000 --> 0:17:04.200 all these other statutes Congress has enacted where it use 0:17:04.280 --> 0:17:08.120 the word tariff or duty or custom or something like that, 0:17:09.080 --> 0:17:12.280 and didn't use it here, tells us about the literal 0:17:12.359 --> 0:17:14.960 meaning of the language here, So that I think there 0:17:15.000 --> 0:17:17.200 is a textualist answer that doesn't rely on the Major 0:17:17.240 --> 0:17:20.240 Questions doctrine that under which the plaintiffs win. 0:17:20.840 --> 0:17:23.879 But you know, I'm just making an assessment. 0:17:24.119 --> 0:17:26.520 If Justice Scurtius thinks that they can't win without the 0:17:26.520 --> 0:17:30.000 Major Questions doctrine, then that suggests that if Cato is 0:17:30.040 --> 0:17:31.960 going to win, it's going to be with the Major 0:17:32.040 --> 0:17:32.920 Questions doctrine. 0:17:33.119 --> 0:17:37.320 So, I mean, the conservative justices use the Major Questions 0:17:37.400 --> 0:17:42.720 doctrine to block President Biden in his initiatives on student 0:17:42.800 --> 0:17:48.720 loan forgiveness, coronavirus vaccine mandates, and climate change. How would 0:17:48.760 --> 0:17:53.520 they reconcile it if they allow President Trump to exercise 0:17:53.800 --> 0:17:57.399 sweeping emergency powers with these global tariffs. 0:17:58.240 --> 0:18:00.000 Right, Well, so if they want. 0:17:59.920 --> 0:18:01.880 To reconcile it, I guess right. 0:18:01.760 --> 0:18:04.600 So the short answer is I don't think they can 0:18:04.720 --> 0:18:07.879 in a way that is persuasive to me. But you know, 0:18:08.000 --> 0:18:12.680 before the Supreme Court overruled the doctrine of Chevron deference 0:18:12.680 --> 0:18:15.239 to administrative agencies in the Lower Bright case a year 0:18:15.280 --> 0:18:19.399 and a half ago. Even then, there was a lot 0:18:19.440 --> 0:18:25.240 of scholarship showing, I think, persuasively that the real meaning 0:18:25.240 --> 0:18:28.600 of the Chevron defference doctrine was the Court deferred to 0:18:28.720 --> 0:18:32.920 decisions it liked and didn't defer to decisions it didn't. 0:18:32.720 --> 0:18:35.960 Like, and that had a political balance to it. 0:18:36.760 --> 0:18:39.199 I think it would be child's play to write an 0:18:39.200 --> 0:18:41.200 opinion here that says, of course, we have the major 0:18:41.280 --> 0:18:44.719 questions doctrine, and what that requires is a clear delegation. 0:18:44.920 --> 0:18:48.080 Here there is a clear delegation because regulate historically has 0:18:48.119 --> 0:18:51.840 included the power to have tariffs and so forth. Right, 0:18:52.080 --> 0:18:55.840 that is the threshold for applying the Major Questions doctrine 0:18:56.119 --> 0:19:00.359 is a finding that Congress didn't clearly delegate. So they 0:19:00.359 --> 0:19:02.720 would just say, well, Congress here in the text clearly 0:19:02.760 --> 0:19:05.000 did delegate. I'm not saying that would be persuasive, but 0:19:05.040 --> 0:19:06.399 I think that's that's what they would do. 0:19:06.680 --> 0:19:10.200 And where did the you mentioned the non delegation doctrine? 0:19:11.280 --> 0:19:12.560 Will that play in here. 0:19:13.200 --> 0:19:17.600 Oh sure, So, I mean that's that was the line 0:19:17.600 --> 0:19:21.120 of questioning that Neil that Justice Courses was pursuing against 0:19:21.119 --> 0:19:24.480 the Solicitor General, which is, he wanted him to get 0:19:24.480 --> 0:19:27.800 this SG to admit and successfully got him to admit 0:19:28.280 --> 0:19:34.680 that under the government's theory of the case, Congress could 0:19:35.040 --> 0:19:39.560 give to the president the authority to regulate the entire 0:19:39.600 --> 0:19:43.440 economy if if there's any non delegation doctrine at all, Right, 0:19:43.560 --> 0:19:47.280 there's no intelligible principle of Congress saying hey, if you 0:19:47.320 --> 0:19:49.359 think it's a good idea, do whatever you want with 0:19:49.440 --> 0:19:52.960 respect to foreign trade. And that's why sour the SG 0:19:53.119 --> 0:19:57.120 eventually backed off of this position that there's no non 0:19:57.160 --> 0:19:58.639 delegation doctrine in this area. 0:19:59.240 --> 0:20:04.120 So you wouldn't be surprised then, if the court ends 0:20:04.200 --> 0:20:10.399 up upholding Trump's ability to impose these tariffs undra AIPA. 0:20:10.040 --> 0:20:12.080 I wouldn't be surprised with the result either way. 0:20:12.280 --> 0:20:16.919 Again, as I said, I think that the given my priors, 0:20:17.119 --> 0:20:20.080 I thought that the result of the argument is that 0:20:20.119 --> 0:20:22.679 the plaintiffs should win. That's what I thought before the argument, 0:20:23.000 --> 0:20:27.840 and I was heartened by the questions that at least 0:20:27.840 --> 0:20:31.200 three of the conservative justices asked of the Solicitor General. 0:20:31.880 --> 0:20:35.560 But this turn that the argument took near the end 0:20:36.280 --> 0:20:39.000 suggests to me that it's certainly not a sure thing. 0:20:39.920 --> 0:20:43.120 Anything else that struck you, Mike one thing. 0:20:43.560 --> 0:20:45.760 So in my preview of the case on my blog 0:20:46.000 --> 0:20:52.000 on Monday, I pointed to some remarkable statements very early 0:20:52.280 --> 0:20:57.200 in the government's opening brief, quoting President Trump about how 0:20:57.200 --> 0:21:01.719 magnificent these tariffs are. And I thought that was potentially 0:21:01.800 --> 0:21:06.800 counterproductive because you know, it included, you know, typical Trumpian 0:21:06.880 --> 0:21:09.199 rhetoric about how our country is, you know, going to 0:21:09.240 --> 0:21:11.960 hell in a handbasket, and you know, thanks to me 0:21:12.040 --> 0:21:16.119 and my beautiful tariffs, everything's working out. But if you 0:21:16.280 --> 0:21:19.680 get rid of this, it'll be, you know, armageddon. I'm 0:21:19.680 --> 0:21:22.840 not really exaggerating much. That's not using literal language, and 0:21:23.280 --> 0:21:25.360 you know, it's just it was over the top rhetoric, 0:21:25.440 --> 0:21:28.600 and it was also economically illiterate, right, the claim that 0:21:28.640 --> 0:21:32.680 this is doing wondrous for the economy. And I noticed 0:21:32.800 --> 0:21:36.359 during the course of the argument that Sour would occasionally 0:21:36.440 --> 0:21:39.800 give versions of that not quite as over the top 0:21:39.840 --> 0:21:40.320 as in the. 0:21:40.280 --> 0:21:43.400 Brief, and he seemed to get no reaction at all. 0:21:43.280 --> 0:21:46.920 From any of the justices except for Justice Kavanaugh, who 0:21:46.960 --> 0:21:51.080 did seem to give some credit to Trump forgetting various 0:21:51.119 --> 0:21:56.359 policies adopted In virtuous He pointed to the India tariffs 0:21:56.600 --> 0:22:00.000 as serving you know, the foreign policy goal of getting 0:22:00.160 --> 0:22:04.720 Russia to change its stand in the war against Ukraine, 0:22:05.280 --> 0:22:09.320 and you know the effect on the fentnal precursors with China. 0:22:09.880 --> 0:22:13.040 But for the most part, it struck me that the 0:22:13.080 --> 0:22:15.480 reality of what's going on, which is, you know, this 0:22:15.640 --> 0:22:18.960 mad king randomly imposing tariffs and then taking them off 0:22:19.040 --> 0:22:19.520 because of. 0:22:19.480 --> 0:22:21.520 His whims, didn't really penetrate. 0:22:21.880 --> 0:22:24.320 And I think that's probably good for the government's case, 0:22:24.440 --> 0:22:26.960 because the more that you look at what's really going 0:22:27.000 --> 0:22:29.240 on here, the less it looks like any kind of 0:22:29.280 --> 0:22:30.160 sensible policy. 0:22:30.800 --> 0:22:33.200 We'll see what the decision is. Thanks so much, Mike. 0:22:33.640 --> 0:22:37.399 That's Professor Michael Dorf of Cornell Law School. Coming up 0:22:37.440 --> 0:22:39.800 next on the Bloomberg Lawn Show, we'll talk to a 0:22:39.840 --> 0:22:44.680 trade lawyer about the oral arguments. The US Supreme Court 0:22:44.760 --> 0:22:49.960 appeared skeptical of President Donald Trump sweeping global tariffs, as 0:22:50.040 --> 0:22:54.399 key Justice Is suggested he'd overstepped his authority with his 0:22:54.560 --> 0:22:59.520 signature economic policy. My guest is Timothy Bright Bell, partner 0:22:59.520 --> 0:23:03.200 and coach of the International Trade practice at Wiley Rhein. 0:23:03.960 --> 0:23:06.600 Tim tell us what's at stake in this case. 0:23:07.400 --> 0:23:13.480 This case involves the centerpiece of President Trump's economic agenda. 0:23:13.760 --> 0:23:16.399 This argument is the biggest trade case the Supreme Court 0:23:16.400 --> 0:23:19.720 has ever heard, and it goes straight to the key 0:23:19.760 --> 0:23:24.000 constitutional issue of who has the power to impose tariffs, 0:23:24.480 --> 0:23:28.240 the US Congress or the president. President Trump says the 0:23:28.320 --> 0:23:32.639 law that he used, the International Emergency Economic Powers Act, 0:23:32.840 --> 0:23:36.159 gives him the power to regulate imports, and that that 0:23:36.480 --> 0:23:43.040