WEBVTT - Legality of Trump’s Tariffs With Professor Yoo 0:00:15.520 --> 0:00:19.960 Welcome to the Votes and Verdicts podcast hosted by Bloomberg Intelligence, 0:00:20.040 --> 0:00:24.120 the investment research arm of Bloomberg LPA. In this podcast series, 0:00:24.160 --> 0:00:27.040 we talk about the intersection of business policy and law. 0:00:27.480 --> 0:00:30.360 My name is Holly Frome. I'm an analyst with Bloomberg 0:00:30.360 --> 0:00:35.160 Intelligence covering consumer and industrials litigation. Today's podcast, we'll focus 0:00:35.200 --> 0:00:39.040 on several key court rulings impacting tariffs, and specifically a 0:00:39.120 --> 0:00:42.159 May twentieth decision by the US Court of International Trade 0:00:42.320 --> 0:00:44.760 and May twenty ninth decision by a Washington, d c. 0:00:44.920 --> 0:00:48.800 District Court holding that President Trump's reciprocal tariffs and tariffs 0:00:48.800 --> 0:00:53.960 imposed on China, Canada, and Mexico were unlawful. I'm delighted 0:00:53.960 --> 0:00:56.960 to be joined today by law Professor John Yu. Professor 0:00:57.080 --> 0:01:00.280 U is a Senior Research Fellow at the Cibitas Institut, 0:01:00.680 --> 0:01:03.600 a Distinguished Visiting Professor at the School of Civil Leadership 0:01:03.680 --> 0:01:07.600 at the University of Texas Austin, the Emmanuel Heller Professor 0:01:07.640 --> 0:01:10.200 of Law at the University of California at Berkeley, and 0:01:10.240 --> 0:01:14.240 a non resident Senior Fellow at the American Enterprise Institute. 0:01:15.080 --> 0:01:18.200 Professor U served as an official in the US Department 0:01:18.200 --> 0:01:21.919 of Justice General Counsel of the US Senate Judiciary Committee, 0:01:21.959 --> 0:01:24.360 and was a law clerk for Supreme Court Justice Clarence 0:01:24.440 --> 0:01:28.440 Thomas and Federal Appeals Judge Lawrence Silberman. He has written 0:01:28.520 --> 0:01:31.080 or assisted in the writing of numerous books on constitutional 0:01:31.200 --> 0:01:34.400 law national security in the Supreme Court and graduated Harvard 0:01:34.440 --> 0:01:37.760 College and Yale Law School. Professor U also serves on 0:01:37.800 --> 0:01:41.080 the board of the Pacific Legal Foundation, which is representing 0:01:41.120 --> 0:01:44.480 businesses that have filed a case called Princess Austin versus 0:01:44.480 --> 0:01:47.560 Customs and a separate lawsuit against the Trump administration over 0:01:47.600 --> 0:01:50.520 the tariffs we will discuss today. Thank you so much 0:01:50.520 --> 0:01:54.480 for joining us, Professor U. So, just by way of background, 0:01:54.560 --> 0:01:57.680 the International Trade Court on May twenty eighth found executive 0:01:57.760 --> 0:02:01.520 orders imposing so called reciprocal terrors were also called worldwide 0:02:01.600 --> 0:02:05.200 terraffs and terraffs in China, Canada, and Mexico related to 0:02:05.280 --> 0:02:09.960 fentanyl trafficking unlawful. The Court found reciprocal terrafts lawful because 0:02:09.960 --> 0:02:13.560 it found the International Emergency Economic Powers Act, the law 0:02:13.600 --> 0:02:17.000 the President used to impose them, doesn't permit unbounded teriffs. 0:02:17.200 --> 0:02:19.079 If it did, the Court said it would violate the 0:02:19.120 --> 0:02:22.519 major questions and non delegation doctrines, and with respect to 0:02:22.600 --> 0:02:25.760 fentanyl trafficking terraffs, it found that the terriffs don't deal 0:02:25.960 --> 0:02:30.440 with the emergency as required by what's the Internationalency Economic 0:02:30.480 --> 0:02:33.040 Powers Act were also known as AIPA. So, as many 0:02:33.080 --> 0:02:36.760 people know, the President posed reciprocal terrafs on the grounds 0:02:36.760 --> 0:02:40.560 that the trade deficit constituted an emergency. And you've said 0:02:40.639 --> 0:02:42.840 that the judges of the International Trade Court could have 0:02:42.840 --> 0:02:46.440 rejected the reciprocal terraces on the straightforward ground that the 0:02:46.480 --> 0:02:50.400 trade deficit doesn't qualify as an unusual and extraordinary threat 0:02:50.480 --> 0:02:54.000 as required by AEPA, But the court didn't make that determination. 0:02:54.400 --> 0:02:55.520 Why do you think they didn't? 0:02:56.080 --> 0:02:59.000 Thanks for having me, Holly, And it's an interesting question. 0:02:59.040 --> 0:03:01.679 There's really two different parts to it. One is what's 0:03:01.720 --> 0:03:04.519 the right role of the courts? And that's the question 0:03:04.639 --> 0:03:08.000 you just asked, why didn't the courts reach a certain 0:03:08.080 --> 0:03:10.400 question or not? And then the second one is just 0:03:10.919 --> 0:03:14.600 under the statute is this and appropriate use of the 0:03:14.639 --> 0:03:19.040 emergency international Economic powers? So I think as to the 0:03:19.040 --> 0:03:24.440 first question, courts have always been reluctant to second guess 0:03:25.400 --> 0:03:28.400 the executive branch, and when it decides there's an emergency. 0:03:29.600 --> 0:03:33.400 In fact, I don't think that any court really ever 0:03:33.520 --> 0:03:36.640 has overturned a finding of it by the president of 0:03:36.640 --> 0:03:40.400 an emergency. This is because courts feel a great deal 0:03:40.640 --> 0:03:45.440 of reluctance in this area to try to determine what 0:03:45.520 --> 0:03:51.000 the facts are. They understand that emergencies are fast moving, 0:03:51.560 --> 0:03:56.520 that they happen in an unanticipated way. That's in fact 0:03:56.520 --> 0:04:01.320 why Congress often delegates broad authority to the president. So 0:04:01.360 --> 0:04:04.120 I think that this court, this Court of International Trade, 0:04:04.520 --> 0:04:07.760 which is a very unusual court. It's in fact, for 0:04:07.920 --> 0:04:10.680 most of its history it was actually an administrative agency, 0:04:11.760 --> 0:04:15.160 and it's not like the other kinds of federal courts 0:04:15.200 --> 0:04:17.800 were used to reading about, which have what we call 0:04:17.839 --> 0:04:20.640 a general jurisdiction. They can hear almost any issue under 0:04:21.120 --> 0:04:26.520 federal law. This court especially created just to hear really 0:04:26.560 --> 0:04:30.160 cases about dumping and unfair subsidies in the trade context. 0:04:30.880 --> 0:04:33.599 I don't think they wanted to step out and be 0:04:34.040 --> 0:04:37.719 the first federal court to ever overturn of finding a 0:04:37.760 --> 0:04:40.680 presidential emergency. That doesn't mean that, you know, as to 0:04:40.720 --> 0:04:44.080 the second question I raised, under the law itself, this 0:04:44.200 --> 0:04:46.960 is an emergency. It might just be that this court thought, 0:04:47.320 --> 0:04:50.560 maybe be it should be the Supreme Court or the 0:04:50.560 --> 0:04:53.799 Federal Circuit, the higher appeals court that take this fateful step. 0:04:54.320 --> 0:05:00.200 Yeah, that makes sense. And then I wonder why, well 0:05:00.240 --> 0:05:02.360 we'll get I guess we'll get to it later because 0:05:03.040 --> 0:05:06.560 you know, there's another district court case that found the 0:05:06.560 --> 0:05:09.839 tarifs and lawful for different reasons, which we'll get to. 0:05:10.520 --> 0:05:14.280 That court also didn't say that the trade deficit wasn't 0:05:14.279 --> 0:05:18.120 an emergency, but the President has said that the trade 0:05:18.160 --> 0:05:22.760 imbalances have hollowed out our manufacturing base, inhibited our abilities 0:05:23.040 --> 0:05:28.159 to scale domestic manufacturing, undermine critical supply chains, and rendered 0:05:28.160 --> 0:05:32.200 our defense industrial based dependent on foreign adversaries. So why 0:05:32.200 --> 0:05:35.560 do you think that that doesn't lead to the conclusion 0:05:35.600 --> 0:05:39.320 that trade balance imbalances and other trade barriers doesn't arise 0:05:39.360 --> 0:05:43.599 to the level of an unusual and extraordinary threat. Yeah. 0:05:43.680 --> 0:05:46.479 I think, Holly, that if the courts do get to 0:05:46.560 --> 0:05:49.560 the question, if they do, unlike as you said, the 0:05:49.600 --> 0:05:52.560 Court of a National Trade just take off what we 0:05:52.680 --> 0:05:56.400 called denovo, a fresh look at whether an emergency exist 0:05:56.520 --> 0:05:59.000 or not. I don't think this is what Congress had 0:05:59.040 --> 0:06:03.640 in mind with AIPA. As you said in your introduction, 0:06:03.720 --> 0:06:07.599 you quoted the statute, it requires an unusual and extraordinary 0:06:07.640 --> 0:06:10.880 threat to the national security or foreign policy of the 0:06:10.960 --> 0:06:15.800 United States. You go back and look, and first, I 0:06:15.839 --> 0:06:22.080 don't think that the trade deficit has suddenly fallen upon us. 0:06:22.680 --> 0:06:25.920 We've had a trade deficit consistently for about fifty years 0:06:26.640 --> 0:06:30.400 since the Nixon administration. And in fact, Nixon was the 0:06:30.440 --> 0:06:32.760 last person to kind of try something, last president to 0:06:32.800 --> 0:06:37.800 try something like this, to pose a kind of universal 0:06:37.960 --> 0:06:42.080 tariff in order to solve the trade deficit, which didn't work. 0:06:42.839 --> 0:06:45.440 And so the trade deficit has fluctuated up and down. 0:06:46.160 --> 0:06:49.760 And I also looked, and if you correct for inflation, 0:06:51.160 --> 0:06:54.719 the trade deficit today is about where the trade deficit 0:06:54.960 --> 0:06:58.640 was at the beginning of the second Bush term. So 0:06:58.920 --> 0:07:04.680 it's been about many years. And the inflation adjusted size 0:07:04.760 --> 0:07:08.240 of the budget deficit, there's a percentage of GDP for example, 0:07:08.360 --> 0:07:11.600 is really not change at all. So to me, it 0:07:11.720 --> 0:07:15.920 seems that an emergency, you know, something unusual, extraordinary, something 0:07:15.960 --> 0:07:19.800 that has an enormous impact, and it's something that's all 0:07:19.840 --> 0:07:22.200 of a sudden, it's something that has fallen us in 0:07:22.200 --> 0:07:27.560 an unanticipated way. Whereas this emergency is a non emergency. 0:07:27.600 --> 0:07:30.520 The trade deficit is just the fact of the economic life, 0:07:30.560 --> 0:07:32.560 or a trade SURPPLUS would be two. And it's been 0:07:32.600 --> 0:07:37.560 fluctuating up and down four or five decades now, got it. 0:07:37.680 --> 0:07:41.520 So what the International Trade Court said was that if 0:07:41.560 --> 0:07:46.040 the president is going to address trade deficits, he has 0:07:46.120 --> 0:07:48.280 to do that through Section one twenty two of the 0:07:48.320 --> 0:07:51.720 Trade Act and not through I do you agree with 0:07:51.760 --> 0:07:52.320 that ruling. 0:07:53.200 --> 0:07:55.840 I think that's an I don't think that's correct. So 0:07:55.880 --> 0:07:58.400 I think there's a number of ways that the president 0:07:58.520 --> 0:08:04.800 can impact trade, and I think that's why this legal question, 0:08:05.840 --> 0:08:08.760 the first one is this an emergency is all important 0:08:08.960 --> 0:08:12.640 because if you then turn to AIPA and you read 0:08:12.720 --> 0:08:16.080 the powers that are given to the president, it doesn't 0:08:16.240 --> 0:08:19.880 use the word tariff, but it uses the words which 0:08:19.880 --> 0:08:22.400 you make up a tariff. It says that the president 0:08:22.480 --> 0:08:29.680 is allowed to regulate block sees any kind of transaction 0:08:31.640 --> 0:08:37.079 with a foreign party. Essentially, so, for example, under APA, 0:08:37.320 --> 0:08:42.520 and keep in mind, AEPA grandfathered in other kinds of 0:08:43.559 --> 0:08:47.719 international emergencies that have been declared and trade sanctions that 0:08:47.760 --> 0:08:52.400 have been used, you could regularly impose an embargo on 0:08:52.520 --> 0:08:56.360 a trade embargo on an entire country. So the predecessor 0:08:56.400 --> 0:08:59.280 of TAIPA was something called the Trading with the Enemy Act, 0:09:00.280 --> 0:09:03.079 and so when Congress, which was passed in nineteen seventeen, 0:09:03.400 --> 0:09:07.880 and so when Congress passed AEPA in nineteen seventy seven, 0:09:08.120 --> 0:09:12.760 it was trying to change how presidents could use those powers, 0:09:13.400 --> 0:09:15.840 but they didn't really change the powers that the president 0:09:15.920 --> 0:09:19.120 got from the statute. And so under the Trading with 0:09:19.160 --> 0:09:22.520 the Enemy Act and then even under AEPA, presidents have 0:09:22.640 --> 0:09:27.559 regularly imposed trade sanctions that go even farther beyond teriffs, 0:09:27.559 --> 0:09:31.040 to the point of cutting off all trade with the country. 0:09:31.480 --> 0:09:35.120 For example, we're talking right now about secondary Russian sanctions, 0:09:35.120 --> 0:09:38.680 which would be to impose trade sanctions on country that 0:09:38.800 --> 0:09:42.280 do trade with Russia, not even primary sanctions, which are 0:09:43.000 --> 0:09:45.440 sanctions that are just directly on US Russian trade, which 0:09:45.440 --> 0:09:48.520 is now very small. This to me is even more 0:09:48.600 --> 0:09:53.360 powerful tool than just straightforward tariffs, and that would be 0:09:53.400 --> 0:09:56.880 done under IPA. I think the way to understand what 0:09:57.400 --> 0:10:00.760 these powers are is that they're very broad, broader than 0:10:00.880 --> 0:10:04.280 these x under the other trade laws. But I think 0:10:04.280 --> 0:10:07.480 what they're really aimed at, in combination with the first question, 0:10:07.640 --> 0:10:10.280 is this an emergency, is that the purpose of the 0:10:10.280 --> 0:10:14.480 statute was to aim at individual countries. So, for example, 0:10:14.520 --> 0:10:18.000 if President Trump were to say, a trade with China 0:10:18.800 --> 0:10:23.200 and China itself is a national security and foreign policy threat, 0:10:23.480 --> 0:10:27.800 so I'm going to impose sanctions on China, for example, 0:10:27.840 --> 0:10:33.480 in order to protect American national security related industries, or 0:10:33.600 --> 0:10:38.040 to build up alternate sources for raw materials or for 0:10:38.200 --> 0:10:41.160 basic electronic components that if we rely on China for 0:10:41.840 --> 0:10:44.160 I think that would fall under AUPA. 0:10:44.559 --> 0:10:46.120 So do you think he would have been on better 0:10:46.520 --> 0:10:48.600 legal footing perhaps if he had directed it in a 0:10:48.640 --> 0:10:51.920 specific country instead of the you know, the worldwide chairis 0:10:51.920 --> 0:10:54.840 where he directed it in almost every country. 0:10:55.040 --> 0:10:57.199 Exactly right, Holly. That I think is the way APA 0:10:57.280 --> 0:11:01.560 is supposed to work is here's a country like a China, 0:11:01.800 --> 0:11:05.880 like a Russia, they now pose a threat to our 0:11:05.960 --> 0:11:11.120 national security. Then AIPA gives you much broader therapy power 0:11:11.160 --> 0:11:14.400 than just terriffs. You know, president could just close off 0:11:14.520 --> 0:11:17.040 all trade, not just trade. You can close off trade, 0:11:17.080 --> 0:11:20.640 you could close off travel, you could close off communications 0:11:21.480 --> 0:11:24.040 with that country. But it has to be I think, 0:11:24.120 --> 0:11:26.840 country by country, and it has to be because, of course, 0:11:26.880 --> 0:11:31.160 you find that country is a threat, not because they're 0:11:31.200 --> 0:11:34.400 just part of the overall trade deficit that we have. 0:11:34.960 --> 0:11:39.679 That makes sense. So the District Court of Washington, d c. However, 0:11:39.880 --> 0:11:43.520 said that AIPA doesn't authorize tariffs at all. And one 0:11:43.559 --> 0:11:46.160 of the points the court raised was that AIPA never 0:11:46.240 --> 0:11:49.559 even mentions the word tariff. What do you think, what 0:11:49.960 --> 0:11:51.800 do you make of the argument that if Congress meant 0:11:51.800 --> 0:11:55.319 to authorize the president to impose terriffs vi iepa, it 0:11:55.360 --> 0:11:58.720 would have explicitly said so in the statute. You know, 0:11:58.800 --> 0:12:01.560 this is a I think a problem with that opinion 0:12:01.720 --> 0:12:07.319 and the Court of International Trades opinion is that I 0:12:07.400 --> 0:12:13.000 think they ignore that Supreme Court decisions in this area 0:12:13.000 --> 0:12:19.640 of international emergencies and economic powers. It has very different 0:12:19.640 --> 0:12:24.400 fundamentals than domestic law. So you mentioned earlier that the 0:12:24.480 --> 0:12:29.359 Quarter of International Trade had held that the Trump administration 0:12:29.559 --> 0:12:32.920 was violating what's called the major Questions doctrine. This is 0:12:33.040 --> 0:12:37.560 essentially what the Court in Washington has helped too. And 0:12:37.600 --> 0:12:42.560 this idea that the Supreme Court has articulated in cases 0:12:42.679 --> 0:12:48.280 like striking down President Biden's effort to forgive student loans 0:12:48.800 --> 0:12:54.160 or the nationwide vaccine mandate. This is the idea that 0:12:54.800 --> 0:12:58.839 a statute that's vague, isn't to be read to give 0:12:59.000 --> 0:13:04.240 the executive branch power on a question of major economic 0:13:04.520 --> 0:13:08.520 or social or political importance. In other words, if Congress 0:13:08.800 --> 0:13:11.800 really wanted to give the executive branch that power, for example, 0:13:11.840 --> 0:13:15.480 to acquire a nationwide COVID nineteen vaccine mandate, it would 0:13:15.480 --> 0:13:18.400 say so in the statute. And courts aren't to give 0:13:19.160 --> 0:13:22.760 the president the benefit of the doubt. And that's been 0:13:22.800 --> 0:13:25.320 a very important development under the Robbers Court. But the 0:13:25.360 --> 0:13:30.200 Supreme Court has never applied that to foreign affairs. And 0:13:30.280 --> 0:13:35.280 so there's another line of cases involving international economic regulations 0:13:35.720 --> 0:13:39.720 where the Court has rejected exactly that argument, and in 0:13:39.760 --> 0:13:44.319 fact it rejected it exactly in the area of interpreting AIPA. 0:13:44.720 --> 0:13:47.760 The first major use of AEPA was against Iran, and 0:13:47.800 --> 0:13:50.520 it was to resolve the Iranian hostages crisis. Is a 0:13:50.520 --> 0:13:55.199 case called Dames and Moore versus Reagan. And in that case, 0:13:55.280 --> 0:13:58.839 the Court, I'm sorry, the President had to execute certain 0:13:58.880 --> 0:14:03.439 economic sunctions and lifting of sanctions that were not permitted 0:14:03.520 --> 0:14:09.160 under a EPA. The Court said that even though the 0:14:09.200 --> 0:14:12.679 statute did not clearly deny the authority to provide the 0:14:12.720 --> 0:14:15.640 authority for that, it was going to give the president 0:14:15.679 --> 0:14:19.640 the benefit of the doubt because it involved foreign affairs 0:14:19.680 --> 0:14:23.760 and involved national security, involved fast moving events that the 0:14:23.800 --> 0:14:28.360 court was reluctant to resecond guests. And that's exactly I 0:14:28.360 --> 0:14:30.280 think what's going on here. So that's why I think 0:14:31.880 --> 0:14:34.240 really the hard question for the courts are going to 0:14:34.280 --> 0:14:37.920 be are they going to review the emergency declaration? I 0:14:37.960 --> 0:14:42.320 think once they do, then the major questions doctrine. So 0:14:42.400 --> 0:14:44.880 far the Supreme Court can always change his mind. The 0:14:44.960 --> 0:14:47.200 major questions doctrine and the theory of it has not 0:14:47.680 --> 0:14:50.640 been held to apply to IBA. Got it. 0:14:50.760 --> 0:14:54.560 So the International Trade Court said that if the law 0:14:54.680 --> 0:14:59.720 allowed unbounded terrafts, as it found a reciprocal terrafs were, 0:15:00.200 --> 0:15:03.360 it would violate the non delegation doctrine which you talked about. 0:15:04.880 --> 0:15:07.920 And that doctrine, you know, as you said, this says 0:15:07.960 --> 0:15:10.200 that Congress can't delegate a power to the president without 0:15:10.240 --> 0:15:14.720 providing intelligible principle or limits around that power. And you 0:15:14.760 --> 0:15:17.320 said you believe this line of reasoning, though, opens the 0:15:17.400 --> 0:15:21.200 door for Trump to prevail on appeal. Can you explain 0:15:21.240 --> 0:15:22.200 why you think that? 0:15:22.920 --> 0:15:25.920 Yes, So this pulls from that case in dameson Moore 0:15:26.000 --> 0:15:30.160 versus Reagan. The Court held that, So, I don't want 0:15:30.160 --> 0:15:32.680 to get too complicated, but this was the deal that 0:15:32.720 --> 0:15:35.960 freed the hostages in nineteen eighty and part of the 0:15:36.000 --> 0:15:39.480 deal was the United States had to had frozen all 0:15:39.560 --> 0:15:43.360 Iranian government assets in the United States under a EPA, 0:15:44.240 --> 0:15:46.960 and a whole bunch of people and companies had also 0:15:47.160 --> 0:15:52.360 sued Iran's government for nationalizing all their assets and had 0:15:52.400 --> 0:15:56.680 won judgments and attached them all throughout the country. And 0:15:56.720 --> 0:16:00.320 so as part of that deal, the Carter first and 0:16:00.320 --> 0:16:03.400 then the Reagan administration had to free up all that 0:16:03.480 --> 0:16:08.880 money and send it out of the country. AIPA doesn't 0:16:08.880 --> 0:16:11.440 allow you to do that. AIPA doesn't actually say that you, 0:16:11.840 --> 0:16:15.480 the president, in the course of a national emergency, can 0:16:16.080 --> 0:16:21.920 take away basically lift all those attachments and basically eliminate 0:16:22.000 --> 0:16:27.120 all those judgments in court. And so the Supreme Court said, yes, 0:16:27.200 --> 0:16:29.040 we admit. They were very open. They said, we admit 0:16:29.240 --> 0:16:33.560 that the Statute APA doesn't specifically give the president that power. 0:16:34.160 --> 0:16:36.320 It gives a president a lot of other broad powers. 0:16:36.600 --> 0:16:40.360 And so we think that in the area of an 0:16:41.000 --> 0:16:46.120 economic regulation during an international emergency, we are going to 0:16:47.400 --> 0:16:51.160 basically give the president the benefit of the doubt, let 0:16:51.200 --> 0:16:55.200 him exercise that power, just kind of like filling a 0:16:55.240 --> 0:16:59.880 gap in the statute and not strike down something during 0:16:59.880 --> 0:17:02.960 the during an international emergency, which we don't want to 0:17:03.160 --> 0:17:07.040 second guests. So that case really is the one that 0:17:07.080 --> 0:17:09.760 the Trump administration should be relying on, and I'm sure 0:17:09.800 --> 0:17:12.160 they will as this case moves up to the Supreme Court. 0:17:12.400 --> 0:17:14.280 It's actually quite I don't think they did, though. I 0:17:14.280 --> 0:17:17.920 think it's really puzzling that the trial courts weren't confronted 0:17:17.960 --> 0:17:20.720 with this case and so have to explain, you know, 0:17:20.800 --> 0:17:23.360 why they were able, you know, why they were able 0:17:23.359 --> 0:17:25.560 to hold what they did in the face of you know, 0:17:25.600 --> 0:17:28.280 the most recent This is the clearest Supreme Court President 0:17:28.440 --> 0:17:31.040 president on the IPIS Statute itself. 0:17:31.960 --> 0:17:34.639 So, if this case does make its way to the 0:17:34.640 --> 0:17:38.480 Supreme Court, do you think there's a way that they 0:17:38.520 --> 0:17:44.040 can affirm the International Trade Court's decision with regard to 0:17:44.160 --> 0:17:48.040 worldwide sheriffs but disagree with its reason for finding them 0:17:48.080 --> 0:17:48.600 am awful. 0:17:49.240 --> 0:17:51.879 Yes, I mean, I think the easiest thing the Supreme 0:17:51.920 --> 0:17:56.160 Court could do would be to say we don't consider 0:17:56.160 --> 0:17:59.680 this an emergency within the meaning of the Statute. And 0:18:00.200 --> 0:18:02.040 to do that would be to look at, as I said, 0:18:02.080 --> 0:18:05.800 all the emergencies under the Trading with the Enemy Act 0:18:06.480 --> 0:18:11.000 and look at that which were all nations specific, and 0:18:11.040 --> 0:18:14.080 then to say, you know the purpose of the statue 0:18:14.080 --> 0:18:15.800 and the way it's been used, And that's the thing 0:18:15.800 --> 0:18:17.640 a court has been looking at a lot in its 0:18:17.680 --> 0:18:21.320 recent cases in other areas, is what's been the tradition 0:18:21.359 --> 0:18:25.679 and history, what's been the practice under the statute and 0:18:25.760 --> 0:18:29.360 say these all appeared to us to be aimed at 0:18:29.400 --> 0:18:32.480 specific countries that pose a threat, and then actually gives 0:18:32.520 --> 0:18:36.840 you broader powers and terrors. But that what the Congress 0:18:36.840 --> 0:18:41.320 didn't think an international emergency would be is something that's 0:18:41.400 --> 0:18:44.800 again been with us for fifty years, hasn't really changed 0:18:45.480 --> 0:18:48.320 in twenty years. So it's hard to say it's an emergency. 0:18:48.960 --> 0:18:52.639 You've said that the Trade Court's decision intrudes into foreign 0:18:52.680 --> 0:18:55.400 policy in a manner no federal court has ever done before. 0:18:55.680 --> 0:18:57.280 Can you explain what you mean by that? 0:18:58.160 --> 0:19:01.960 So this is the thing I think that's dangerous. You know, 0:19:02.000 --> 0:19:04.560 it's close to but different than the argument I was making, 0:19:05.000 --> 0:19:08.000 which is, I don't know though, if the courts want 0:19:08.000 --> 0:19:10.479 to get in the position of saying we can decide 0:19:10.480 --> 0:19:13.359 whether this is an emergency or not just on our 0:19:13.400 --> 0:19:17.159 own power. I think what's easier about what I just 0:19:17.240 --> 0:19:20.240 laid out what the court would try to do is 0:19:20.320 --> 0:19:26.040 figure out what did Congress think is an emergency? You know, 0:19:26.119 --> 0:19:30.199 what does Congress think it was doing. What did Congress 0:19:30.200 --> 0:19:32.160 think it was doing when it passed the EYEPA law. 0:19:32.280 --> 0:19:35.320 What kind of international emergencies did it have in mind 0:19:35.680 --> 0:19:39.399 when it said unusual an extraordinary threat to the national 0:19:39.440 --> 0:19:42.679 security and foreign policy United States? But I think what 0:19:42.720 --> 0:19:46.560 the courts will be cautious of is sort of deciding 0:19:46.640 --> 0:19:50.199 for itself whether something is an emergency. I think you 0:19:50.280 --> 0:19:52.960 mentioned that the Court the lower courts have been doing 0:19:53.000 --> 0:19:58.240 this in other areas, specifically immigration cases, and so far 0:19:58.320 --> 0:20:02.360 the Supreme Court is actually intervened mean to overturn the 0:20:02.440 --> 0:20:04.800 cases where the Supreme Court the lower courts have done 0:20:04.880 --> 0:20:08.720 this and said, reconsider what you're doing. It's not clear 0:20:08.720 --> 0:20:11.280 that this is what the federal courts should be. You know, 0:20:11.359 --> 0:20:14.960 this is this this question is included in our powers, 0:20:15.400 --> 0:20:19.800 the question of what is an international emergency in terms 0:20:19.800 --> 0:20:22.800 of just the president's powers, in terms of the constitution. 0:20:23.400 --> 0:20:25.040 All they would have to do in the course that 0:20:25.119 --> 0:20:27.359 I think they might follow is just say this is 0:20:27.400 --> 0:20:29.560 what we think, congressman, when they gave the power to 0:20:29.600 --> 0:20:31.360 the president in the first place. 0:20:31.760 --> 0:20:34.360 I wonder if they would run into that same problem, 0:20:35.480 --> 0:20:38.399 you know, that they are overstepping their authority. The courts 0:20:38.440 --> 0:20:42.200 when they if they decide, you know, Congress didn't meanness 0:20:42.240 --> 0:20:45.359 because AIPA is meant to be meant to give the 0:20:45.359 --> 0:20:48.440 president powers you know in the invention emergency that Congress 0:20:48.480 --> 0:20:49.480 can't contemplate. 0:20:50.040 --> 0:20:52.880 Yes, I think that's a fair question. I think that's 0:20:52.920 --> 0:20:57.679 the best argument for the Trump administration is to say, uh, 0:20:58.080 --> 0:21:02.400 you shouldn't really the courts, you really shouldn't limit yourself 0:21:03.760 --> 0:21:08.560 to what Congress thought was an international emergency. Congress is 0:21:08.680 --> 0:21:11.840 very broad words in the statute. They knew they couldn't 0:21:11.840 --> 0:21:15.439 anticipate the future. And that's a very point of an 0:21:15.440 --> 0:21:18.240 emergency is you can't write laws in advance to really 0:21:18.560 --> 0:21:21.560 deal with them because they haven't happened yet and they're extraordinary. 0:21:21.640 --> 0:21:24.800 And that's the whole point of these emergency statutes in 0:21:24.840 --> 0:21:27.240 the first place. And you can see I agree with 0:21:27.280 --> 0:21:30.159 that. You can see the courts are reluctant, at least the 0:21:30.160 --> 0:21:33.480 Supreme Court has been reluctant to have the federal courts 0:21:34.680 --> 0:21:38.320 tread into this area, which you look at the Constitution. 0:21:38.440 --> 0:21:41.520 Obviously it sets up Congress and the President as the 0:21:41.520 --> 0:21:45.880 branches to lead the country in the context of an emergency. 0:21:46.240 --> 0:21:49.600 But at the same time, you could see the Supreme 0:21:49.600 --> 0:21:52.240 War is not going to say that's an unlimited power 0:21:52.359 --> 0:21:57.160 either that at some point, you know, at some point, 0:21:57.800 --> 0:22:00.760 the courts, I don't think, are going to allow a 0:22:00.840 --> 0:22:07.920 president to declare an emergency for something that's really slow moving, 0:22:08.560 --> 0:22:12.720 really is permanent kind of social problem. So the example 0:22:12.800 --> 0:22:17.080 I give is, I don't think the Court would say 0:22:17.720 --> 0:22:25.359 that climate change is an an international economic emergency because 0:22:25.359 --> 0:22:27.240 it has been going on for so long and is 0:22:27.320 --> 0:22:30.840 very slow moving that I don't think the Court, for example, 0:22:30.840 --> 0:22:35.600 would allow presidents to say climate change triggers i EPA powers. 0:22:36.280 --> 0:22:39.600 Right, That's an interesting example. I've never heard that one 0:22:39.720 --> 0:22:42.920 used before, but that makes sense to me. So you've 0:22:42.960 --> 0:22:46.479 said that the International Trade Court's decision with respect to 0:22:46.560 --> 0:22:50.840 the trafficking terraffs, and what the Court did there was 0:22:50.880 --> 0:22:54.240 they said that those don't deal with the fentanyl emergency. 0:22:54.640 --> 0:22:58.320 And you've said the Court's decision would allow courts to 0:22:58.359 --> 0:23:00.960 sit in judgment over the weather the president has chosen 0:23:01.000 --> 0:23:04.240 the most effective means to achieve its goals. Do you 0:23:04.680 --> 0:23:07.320 support an approach that makes the presence means of dealing 0:23:07.320 --> 0:23:11.000 with an emergency not subject to judicial review? And if not, 0:23:11.160 --> 0:23:13.479 what role do you think the courts should have in 0:23:13.520 --> 0:23:14.800 reviewing such questions? 0:23:15.119 --> 0:23:17.879 Well, I think this was the problem that you know, 0:23:17.920 --> 0:23:19.719 the Supreme Court is going to be worried about that 0:23:19.800 --> 0:23:23.880 if the trial courts really start getting into the business 0:23:23.920 --> 0:23:29.119 of reviewing is this an international emergency at all? And 0:23:29.160 --> 0:23:32.000 then this is what the corporal then went a head 0:23:32.040 --> 0:23:37.880 and said, is this responsive what the government's doing responsive 0:23:38.640 --> 0:23:43.080 to the international emergency? I think that's really an area 0:23:43.119 --> 0:23:47.000 where courts have very little competence. And this was a 0:23:47.000 --> 0:23:52.000 good example. The Court said below that we don't see 0:23:52.040 --> 0:23:56.280 how putting trade sanctions in Mexico and Canada have anything 0:23:56.320 --> 0:23:59.360 to do with the flow fentanyl into the United States. 0:24:00.000 --> 0:24:03.159 So how does the court know that The reason that 0:24:03.240 --> 0:24:07.320 the administration might have done that, for example, is to say, well, 0:24:07.359 --> 0:24:10.480 we're putting that sanction on Mexico because if they start 0:24:10.520 --> 0:24:14.520 to suffer a lot of economic losses from terrorists, then 0:24:14.560 --> 0:24:17.439 the government in Mexico will start to take the steps 0:24:17.440 --> 0:24:19.639 that we want them to take to reduce ventanyl and 0:24:19.720 --> 0:24:22.879 that seems perfectly logical to me. It may not be 0:24:23.040 --> 0:24:27.480 high probability. That's up to you know, the President and 0:24:27.520 --> 0:24:30.400 the Secretary Stay and the just Department, the DEA. They're 0:24:30.400 --> 0:24:34.560 the ones who have the real information about how fentyel's 0:24:34.560 --> 0:24:36.560 getting into the country, and they're the ones who really 0:24:36.560 --> 0:24:39.000 have to make the hard decisions about how to try 0:24:39.040 --> 0:24:41.800 to stop it from getting into the country. I don't 0:24:41.840 --> 0:24:44.840 see how a judge can just sit back in Washington 0:24:44.920 --> 0:24:47.080 and just say I don't think it's going to work. 0:24:47.400 --> 0:24:50.720 You know, the court doesn't have the kind of experience 0:24:50.840 --> 0:24:54.560 or information regarding our national security to make those kinds 0:24:54.600 --> 0:24:58.960 of decisions. But that's what I think is worrisome. I 0:24:58.960 --> 0:25:00.880 think that for the Supreme Court or if they are 0:25:00.920 --> 0:25:05.000 going to let trial courts make decisions about is this 0:25:05.320 --> 0:25:08.199