Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio.
Speaker 2: If I didn't send the National Guard into Los Angeles,
Speaker 2: you wouldn't I would be making an announcement today, I'd
Speaker 2: be talking about Huntsville, and I'd simultaneously be saying, by
Speaker 2: the way, the Olympics is not coming to Los Angeles.
Speaker 3: But a federal judge has found there was no rebellion,
Speaker 3: nor was civilian law enforcement unable to respond to the
Speaker 3: protests and enforce the law in Los Angeles. This summer,
Speaker 3: Judge Stephen Bryer ruled that the Trump administration wilfully violated
Speaker 3: federal law by deploying National Guard troops and US Marines
Speaker 3: to carry out local law enforcement in Los Angeles. In
Speaker 3: a scathing ruling, Briar noted that Trump has stated his
Speaker 3: intention to deploy National Guard troops to other cities across
Speaker 3: the country, raising concerns that Trump is creating a national
Speaker 3: police force with the president as its chief. And today
Speaker 3: in the Oval Office, Trump confirmed that Chicago is next
Speaker 3: that he'll direct federal law enforcement intervention to combat crime
Speaker 3: in Chicago, despite staunch opposition from state and local officials.
Speaker 2: If the governor Illinois would call up, call me up.
Speaker 2: I would love to do it. Now we're going to
Speaker 2: do it anyway. We have the right to do it
Speaker 2: because I have an obligation to protect this country and
Speaker 2: that includes Baltimore. I saw where Governor Moore was asking
Speaker 2: me to take a walk down the street of Baltimore. Well,
Speaker 2: Baltimore is a very unsafe place.
Speaker 3: Illinois Governor JB. Pritzker reiterated today that crime is down
Speaker 3: in Chicago and that the city doesn't need, nor does
Speaker 3: it want, federal troops there.
Speaker 4: None of this is about fighting crime or making Chicago safer.
Speaker 4: None of it. For Trump, it's about testing his power
Speaker 4: and producing a political drama to cover up for his corruption.
Speaker 4: If you need any proof of this that it's all
Speaker 4: a big show.
Speaker 3: My guest is constitutional law expert Harold Krant, a professor
Speaker 3: at the Chicago Kent College of Law. Hal is judge
Speaker 3: Briar's decision a complete refutation of Trump sending troops into
Speaker 3: Los Angeles.
Speaker 5: It's a partial reputation, and indeed, just Buyer's order allows
Speaker 5: the military to remain. What he has done is delineate
Speaker 5: what they can and cannot do. And so this is
Speaker 5: an effort by the judge this steer clear of the
Speaker 5: earlier Ninth Circuit decision which lifted a day on his
Speaker 5: earlier preliminary injunction. So the court here is trying to
Speaker 5: be careful in trying to say what the National Guard
Speaker 5: can do and can't do. And it's up to the
Speaker 5: Ninth Circuit to react, and I'm sure they'll react one
Speaker 5: way or the other.
Speaker 3: But how didn't he find that sending the National Guard
Speaker 3: in was a violation of the Passikamatatis Act.
Speaker 5: He did, but he said that there were some duties
Speaker 5: that the federalized National Guard could in fact undertake consistent
Speaker 5: with the pass Coomatatas Act, but that the fact was
Speaker 5: that he made a factual finding that the troops had
Speaker 5: done more than that they had engaged in general law
Speaker 5: enforcement activity, which she said was proscribed under the Pussikamatatis
Speaker 5: Act and tradition. So he made it more narrow nuanced
Speaker 5: finding that they had previously saying he didn't even question
Speaker 5: the ability of the President to federalize the National Guard
Speaker 5: against the governor's wishes, which obviously took place earlier in
Speaker 5: the year. But he said, even if the president can
Speaker 5: do that, they can't engage in general law enforcement activities,
Speaker 5: including covering ice agents, including dispersing crowd and so forth.
Speaker 6: So it's a.
Speaker 5: More narrow decision than he issued previously, and we'll see
Speaker 5: how the Ninth Circuit again reacts to it.
Speaker 3: So he said, there were indeed protests in Los Angeles
Speaker 3: and some individuals engaged in violence, yet there was no rebellion,
Speaker 3: nor was civilian law enforcement unable to respond to the
Speaker 3: protests and enforce the law.
Speaker 6: There was really two sides. The earlier had ruled that.
Speaker 5: The President lacked authority to federalize the National Guard because
Speaker 5: of the reasons you suggested, And so he is trying
Speaker 5: to create a decision, in my mind here that is
Speaker 5: consistent with the broad principles he articulated, previously limiting the
Speaker 5: president's abilities to nationalize the Federal Guard, but then, realizing
Speaker 5: that the Ninth Circuit had overruled him in part previously,
Speaker 5: then decided to add more granually that even if the
Speaker 5: President could nationalize the National Guard, that they could not
Speaker 5: engage in sort of typical law enforcement authority, which he said,
Speaker 5: including you know, dispersing crowds, including protecting ice agents and
Speaker 5: so forth. But I think the consensus has been that
Speaker 5: the president cannot nationalize the National Guard. You know, unless
Speaker 5: all typical law enforcement has collapsed, you can't enforce court
Speaker 5: orders or there's an insurrection, and obviously those two things
Speaker 5: are not in place in Los Angeles. In my mind, though,
Speaker 5: this is a sideshow because President Trump continually says that
Speaker 5: he can federalize the National Guard and send them wherever
Speaker 5: he wants, to include Chicago, just for ordinary criminal law enforcements.
Speaker 5: So it's clear that there's a clash between the Court's
Speaker 5: view of the limits of the president's authority under the
Speaker 5: Pasi Comatatus Act and what the President thinks he can
Speaker 5: do and has continually espoused he can do in terms
Speaker 5: of federalizing the troops at a moment's notice.
Speaker 3: The judge cited us he span broadcast of Trump's August
Speaker 3: twenty seventh Cabinet meeting where he discussed sending the National
Speaker 3: Guard into Chicago and said, quote, I have the right
Speaker 3: to do anything I want to do.
Speaker 1: So Judge Briar cited.
Speaker 3: That, and then he expanded his order beyond Los Angeles
Speaker 3: to all of California.
Speaker 5: You're currently limited the order to California, but decided that
Speaker 5: because California itself was a plaintiff, he was empowered to
Speaker 5: extend the relief to grant protection to the plaintiff in
Speaker 5: the case.
Speaker 1: Do you think that went too far?
Speaker 5: Well, My only concern about the Court's opinion is that
Speaker 5: the Court seemed to be dismissing the present's sort of
Speaker 5: inherent authority as a statutory matter. I think the Court
Speaker 5: is on strong ground, both historically and in terms of
Speaker 5: textually of understanding the limits of the passe comatatus Act.
Speaker 5: I think the Court was a little bit quick in
Speaker 5: terms of dismissing the presence sort of inherent authority under
Speaker 5: the Commander and Chief clause of the Constitution. Clearly, presidents
Speaker 5: have to make tough costs, tough calls in terms of
Speaker 5: lias on street, tough cause in terms of potential invasions
Speaker 5: and so forth, and so if the president is said,
Speaker 5: we need to protect federal buildings, we need to protect
Speaker 5: federal instrumentalities, I think that article to itself might give
Speaker 5: the president arguably does give it the president that kind
Speaker 5: of authority to order troops to protect those even if
Speaker 5: states say they don't need it. So that's not at
Speaker 5: stake here, and President Trump's news conference clearly illustrates that
Speaker 5: that's not at stake here. But I think that might
Speaker 5: be a weakness in the Court's opinion, because I do
Speaker 5: think that the chief executive has to make those tough
Speaker 5: calls if there are threats in the president's mind to
Speaker 5: federal instrumentalities within the States.
Speaker 3: What Trump has said today is there are lots of
Speaker 3: murderers in Chicago, and crime is up in Chicago, and
Speaker 3: they're going in.
Speaker 1: But he didn't say when.
Speaker 5: But there's absolutely no justification for what the President say
Speaker 5: he's going to do in Chicago, which is even more
Speaker 5: indefensible than what he did in California. And I would
Speaker 5: expect that the mayor of Chicago, Mayor Johnson, and the
Speaker 5: governor of Illinois, Governor Pritsko, will immediately go to court
Speaker 5: not only cite the most recent Judge Briar decision, but
Speaker 5: cite just more convincingly that the President has acknowledged the
Speaker 5: purpose for why he's sending in troops into Chicago, and
Speaker 5: that's absolutely prohibited by the pussy com pat effect under
Speaker 5: any construction of the terms of the statute.
Speaker 3: So Judge Briar's decision has no effect in Illinois correct,
Speaker 3: But is the reasoning strong enough to apply to Illinois.
Speaker 5: I think that reasoning will over the same situation, and again,
Speaker 5: Chicago is an easier case. And I think that to
Speaker 5: the extent that the President would say that ICE agents
Speaker 5: are under attack and that Key as Caman achieved, can't
Speaker 5: ensure an orderly function of immigration processes in this country
Speaker 5: without calling in supportive troops. That would be the strongest
Speaker 5: sort of justification that I can understand in the California context,
Speaker 5: for the use of either the federalized National Guard or
Speaker 5: for the Marines. But he clearly in Chicago's basically is
Speaker 5: that I don't even need that justification. I can send
Speaker 5: troops wherever I want, whenever I want, because I'm the
Speaker 5: President of the United States. And that downright is frightening.
Speaker 5: Not only is it clearly outlawed by the pussy Coomatata
Speaker 5: fact and by the history that led to the Act,
Speaker 5: but it's a huge step towards autocracy.
Speaker 3: What if he just instead of sending in the National
Speaker 3: Guard or military troops, if you just sent in lots
Speaker 3: and lots of federal agbi dea ice, Is there any
Speaker 3: a problem with that?
Speaker 1: Legally?
Speaker 5: There may be pockets of restrictions, but I think ordinarily
Speaker 5: that would be within his power, and certainly he can
Speaker 5: shift FBI agents over to EIST as temporary details. He
Speaker 5: has the power to do that under prior statute. So
Speaker 5: in that respect he could accomplish at least some of
Speaker 5: his goals. But again, he could not engage those FBI
Speaker 5: agents in terms of taking over for general law enforcement
Speaker 5: for Chicago, because the FBI is not authorized. The EE
Speaker 5: agents aren't authorized to deal with conventional robbery, theft, et cetera.
Speaker 5: That are state crimes, not federal crimes.
Speaker 3: So the Insurrection Act is an exception to the posse
Speaker 3: comma tatis law.
Speaker 5: That's correct. And so if he would deem that we
Speaker 5: are under insurrection, I don't even know what the theory
Speaker 5: would be in Chicago. But if he says that there
Speaker 5: is an insurrection because undocumented worker are rising up in
Speaker 5: arms against the authority, or he would say that some
Speaker 5: other kind of indirection is taking place, then he could
Speaker 5: justifiably use federal troops. He has not made that claim,
Speaker 5: and indeed one is very far fetched given the facts
Speaker 5: as we know them.
Speaker 3: Now, and particularly in light of the fact that he
Speaker 3: did not declare an insurrection on January sixth of twenty
Speaker 3: twenty one. Coming up next on the Bloomberg Lawn Show,
Speaker 3: I'll continue this conversation with Professor Harold Krant of the
Speaker 3: Chicago Kent College of Law. So what can Illinois governor
Speaker 3: and Chicago's mayor do? I'm June Gross. When you're listening
Speaker 3: to Bloomberg. President Donald Trump said today that he'll direct
Speaker 3: federal law enforcement intervention to combat crime in Chicago, despite
Speaker 3: staunch opposition from Chicago's mayor and Illinois governor.
Speaker 5: Well, we're going in.
Speaker 2: I didn't say when we're going in.
Speaker 4: We know before anything has happened here that the Trump
Speaker 4: plan is to use any excuse to deploy armed military
Speaker 4: personnel to Chicago. If someone flings a sandwich at an
Speaker 4: Ice agent, Trump will try and go on TV and
Speaker 4: declare an emergency in Chicago.
Speaker 3: I've been talking to Professor Harold Krent of the Chicago
Speaker 3: Kent College of Law. So how before the break, we
Speaker 3: were talking about Judge Briar's decision that the Trump administration
Speaker 3: willfully broke federal law when they sent National Guard troops
Speaker 3: to Los Angeles, and we were talking about the Insurrection
Speaker 3: Act and that that's an exception to the Posse Comitatis
Speaker 3: Act that Judge Briar said the president could have invoked.
Speaker 3: Judge said, if the president wants to avoid the act's restrictions,
Speaker 3: he must invoke a valid exception like the Insurrection Act,
Speaker 3: along with its requisite showing that state and local law
Speaker 3: enforcement are unable or unwilling to act.
Speaker 5: But when we had riots in the wake of the
Speaker 5: sesssination of Martin Luther King, whom he had the unrest
Speaker 5: because of the George Floyd murder, arguably local law enforcement
Speaker 5: could not take the helm and preserve law and order.
Speaker 5: And that is an exception of the Putico Tatus Act.
Speaker 5: And indeed, the courts would be in difficult position if
Speaker 5: the president made a careful finding that that is why
Speaker 5: he is sending troops, that there is no local law
Speaker 5: enforcement that can take care of law enforcement activities. He's
Speaker 5: never made that finding, and given the fact that the
Speaker 5: clim has gone down into these like Washington, d C
Speaker 5: in Chicago, it's simply far fetched, which is understandably why
Speaker 5: he doesn't want to make that kind of specific finding. So, yes,
Speaker 5: presidents have sent in troops, and President Trump could in
Speaker 5: the future respecting Congress, but not in these situations. Obviously,
Speaker 5: the Constitution ascribes a principal role to Congress and deciding
Speaker 5: when to introduce the military into civil in situations. Congress
Speaker 5: has done so in the Passacacomma Titus Act as well
Speaker 5: as the limitations in the Insurrection Act. And that's the
Speaker 5: role that the Constitution gives to Congress, and pusident Trump
Speaker 5: is just writing luckshot over the constitutional structure.
Speaker 3: The mayor of Chicago and the governor and other officials
Speaker 3: held this press conference, and is there anything that the
Speaker 3: governor or the mayor can do to stop him from
Speaker 3: federalizing the National Guard? I mean, the National Guard is
Speaker 3: supposedly under the governor's control, right, absolutely.
Speaker 5: But there are circumstances where the president can federalize the
Speaker 5: National Guard. And at this point they may preemptibly go
Speaker 5: to court. I'm sure they're discussing it both in terms
Speaker 5: of filing lawsuit before the President sends troops or they'll
Speaker 5: wait them out and at the first sign of when
Speaker 5: the President does introduce troops into the streets of Chicago,
Speaker 5: then they'll run into the federal.
Speaker 6: Court and hope for the best. I think they will.
Speaker 5: Receive a favorable reception in the Seventh Circuit in this area.
Speaker 5: But time will tell.
Speaker 3: Suppose they started using the National Guard for other things
Speaker 3: in Chicago or in Illinois, cleaning up the streets of
Speaker 3: every town or something like that. Suppose they just use
Speaker 3: the National Guard themselves.
Speaker 5: Yeah, I mean, the governor can do that, and the
Speaker 5: governors in the past, have you used the National Guard
Speaker 5: to help enhance the safety of their communities, But absent
Speaker 5: the governor's directions, that president lacks the authority to do
Speaker 5: so except for these delineated exceptions that Congress has carefully
Speaker 5: fought through, And it would be up to the courts
Speaker 5: then to respect that dividing line between Congress and the
Speaker 5: President at least. Otherwise we're going to have not a
Speaker 5: separation of powers of three equal branches, but everything will
Speaker 5: be totally dominated by one branch.
Speaker 6: And that's something that the Framers were very cognizant.
Speaker 5: About, the fear of having one branch exceed too much
Speaker 5: power to its own, and that's what we're confronting in
Speaker 5: the near future.
Speaker 3: Tell us what the Ninth Circuit ruled before.
Speaker 5: It's said that it really difficult for courts of second
Speaker 5: guests a justification by the President that there was simply
Speaker 5: not sufficient local law enforcement to protect federal undertakings. In
Speaker 5: this case, the federal undertakers, of course, were the Ice
Speaker 5: agents attempting to round up undocumented individuals and sending them
Speaker 5: out of the country. And so the court decided two.
Speaker 6: To one to not weigh in and say that they
Speaker 6: have a hearing on whether.
Speaker 5: Or not the president's justification was pretext or not. And
Speaker 5: so again the District Court here, Judge Bryer cleverly said,
Speaker 5: even if that's true, that the president has violated the
Speaker 5: comatatis Statute because it has not limited the use of
Speaker 5: the troops for those permissible functions. So they didn't want
Speaker 5: to get into pretext or non pretext, but rather just
Speaker 5: said that what in fact the troops did in Los
Speaker 5: Angeles exceeded their permissible bounds under the statute.
Speaker 3: So, I mean, if the Seventh Circuit follows the Ninth Circuit,
Speaker 3: then they wouldn't stop the troops from coming in.
Speaker 5: I don't think that's going to happen. I mean, I
Speaker 5: think that it obviously depends on what district court judge
Speaker 5: gets the case. Once it's filed, assumably by Governor Pritzker,
Speaker 5: But I think that the logical outcome here is different
Speaker 5: because of the fact that there's no fig leaf. The
Speaker 5: President has not even come close to complying with the
Speaker 5: Postacoma Thomas Act. He's just said local law enforcement time
Speaker 5: and a time at news conferences and not even suggesting
Speaker 5: that there's an insurrection or a failure of the state
Speaker 5: and local government to comply with judicial commands. So I
Speaker 5: think the role is quite clear here in a lawsuit
Speaker 5: is simply issue an injunction to say here outside your
Speaker 5: lane and it would be up then into the Seventh
Speaker 5: Circuit if there is an a junction to determine whether
Speaker 5: to grant it or not, and I think they would
Speaker 5: uphold it.
Speaker 3: And Judge Bryer said something that really resonates in light
Speaker 3: of the fact that President Trump has talked about Chicago
Speaker 3: and next Baltimore and New York. He said, it raises
Speaker 3: concerns that they're creating a national police force with the
Speaker 3: president as its chief. And that's what it seems to
Speaker 3: be because it's about crime, which is usually a local issue.
Speaker 5: Yeah, it's one thing for the president as quasi governor
Speaker 5: for DC to decide what's needed to maintain law and
Speaker 5: order on DC streets. Obviously that's very controversial in his
Speaker 5: own but it's another thing for him to do that
Speaker 5: in states where there are governors trying to displace ubernatorial authority.
Speaker 5: And of course, if you step back and look at this,
Speaker 5: you know the President has said he's doing this in Chicago,
Speaker 5: maybe New York, maybe Baltimore, But you don't hear about
Speaker 5: New Orleans, Memphis, Saint Louis, places with higher crime rates
Speaker 5: that are in Republican states. So again, to think about
Speaker 5: what the president's accomplishing here, he's trying to flexis muscles
Speaker 5: in a way which creates an incredibly dangerous precedent for
Speaker 5: the entire country.
Speaker 3: Well, let's hope it doesn't happen. If it does, there's
Speaker 3: certainly going to be a lot of litigation about it.
Speaker 3: Thanks so much, Hal. That's Professor Harold Krent of the
Speaker 3: Chicago Kent College of Law, coming up next on the
Speaker 3: Bloomberg Law Show. A federal appeals court has ruled that
Speaker 3: President Trump had no legal right to impose sweeping tariffs
Speaker 3: on almost every country. But the next stop is the
Speaker 3: Supreme Court. I'm June Grosso and you're listening to Bloomberg.
Speaker 3: A federal appeals court has ruled that President Donald Trump
Speaker 3: had no legal right to impose sweeping tariffs on almost
Speaker 3: every country. In a seven to four ruling, the US
Speaker 3: Court of Appeals for the Federal Circuit found that Trump
Speaker 3: overstepped his authority under an emergency powers law. It's a
Speaker 3: major legal blow, but it largely upheld a made decision
Speaker 3: by a special federal Trade court in New York.
Speaker 2: But it's a liberal court and it's going up to
Speaker 2: the Supreme Court, who I think have been incredible people.
Speaker 2: I think they've made very wise decisions. But the tariff question,
Speaker 2: because without the tariffs' countries in serious, serious trouble. We've
Speaker 2: taken in. Almost seventeen trillion dollars of investment is coming in.
Speaker 2: Most of it is come in because of tariffs.
Speaker 3: The appeals court didn't strike down the tariffs immediately, allowing
Speaker 3: the administration until mid October to appeal to the Supreme Court,
Speaker 3: although Trump says they'll do so immediately. My guest is
Speaker 3: Jimmy Garul, a professor at Notre Dame Law School and
Speaker 3: the former Undersecretary for Enforcement at the Department of the Treasury.
Speaker 3: Jimmy will you explain why the Federal Circuit Court of
Speaker 3: Appeals ruled against Trump's tariffs.
Speaker 7: Well, first let me meet us back up. So on Friday,
Speaker 7: as you state of, the US Court of Appeals for
Speaker 7: the Federal Circuit affirmed a lower court decision by the
Speaker 7: Court of International Trade. That decision was issued back in May,
Speaker 7: and in that decision, the Court of International Trade set
Speaker 7: aside five executive orders issued by President Trump that imposed
Speaker 7: tariffs of unlimited duration on nearly all goods from merely
Speaker 7: every country across the globe. So that decision was affirmed,
Speaker 7: and the US Court of Appeals for the Federal Circuit
Speaker 7: held that AIPA the International Emergency Economic Powers Act, that
Speaker 7: the authority under that statute to authorize the President to
Speaker 7: regulate and this is an important term in the statute,
Speaker 7: regulate imports. Does not authorize President Trump to impose tariffs
Speaker 7: under either the reciprocal tariffs or the drug trafficking tariffs.
Speaker 7: And so largely it was a statutory construction issue before
Speaker 7: the court. And again the specific issue focused on this
Speaker 7: term regulate and specifically that AIPA authorized as a president
Speaker 7: to regulate imports and whether or not that authority includes
Speaker 7: the authority to impose tariffs, and the Federal Court said, no,
Speaker 7: it does not.
Speaker 3: So they didn't get into, you know, his claims about
Speaker 3: the tariffs that they were to try to settle the
Speaker 3: trade imbalance and the importation of fentenol.
Speaker 1: Do they reach that at all?
Speaker 7: No, there really wasn't. It focused again on this particular language,
Speaker 7: you know, the term regulate and what's the scope of
Speaker 7: the meaning.
Speaker 5: Of that term.
Speaker 7: The court went on, you know, focusing on statutory construction
Speaker 7: and look to other statutes that Congress had enacted that
Speaker 7: authorized the president to impost tariffs and said, well, look,
Speaker 7: with those federal statutes, Congress had imposed requirements on when
Speaker 7: the president could impose tariffs and imposed limitations and said, well,
Speaker 7: that's not the case here. You know that there were
Speaker 7: very very few, you know, limitations on the president's authority
Speaker 7: to impost tariffs under iepis has been leveraged by by
Speaker 7: President Trump. They talked about legislative intent, that there was
Speaker 7: no legislative intent and the statute to authorize the President
Speaker 7: to impose triiffs. They highlighted the fact that the word
Speaker 7: tariffs does not appear anywhere in the statute and therefore,
Speaker 7: from a statutory construction perspective, the Court said, you know, no,
Speaker 7: IPA doesn't provide the president of that authority. Now, having
Speaker 7: said that, there were a couple of additional interesting arguments
Speaker 7: that the Federal Court race. You know, one, they talked
Speaker 7: about something called the major questions doctrine, and they said
Speaker 7: that under the major questions doctrine, the Supreme Court has
Speaker 7: held that if there is an asserted delegation of authority,
Speaker 7: or if the president the executive branch is claiming that
Speaker 7: Congress has transferred certain authority to the executive branch, if
Speaker 7: based upon the history in the breast of that authority
Speaker 7: that it would have vast economic and political significance, and
Speaker 7: that's the term, you know, economic and political significance, then
Speaker 7: there must be clear congressional authorization for the asserted power.
Speaker 7: And here they claimed that there was no such clear
Speaker 7: congressional authorization from Congress to the president to impose tariffs.
Speaker 7: And then lastly, I think that the next major argument
Speaker 7: that the Court raised and reaching its conclusion is they
Speaker 7: argue that the government's argument that the president had this
Speaker 7: authority was delegated to the executive branch by Congress violated
Speaker 7: the non delegation doctrine, that this was an unconstitutional delegation
Speaker 7: of power because Congress did not provide a sufficiently intelligible
Speaker 7: principle that set forth the purpose of why Congress delegated
Speaker 7: this power to impose tariffs to the president. And then
Speaker 7: what were the boundaries, what were the legal boundaries on
Speaker 7: this delegation of authority. So it was these combination of arguments,
Speaker 7: again focusing primarily on the language of the statute that
Speaker 7: the courts relied on in this conclusion striking down the tariffs.
Speaker 3: So what about the descent, the four judges and the descent,
Speaker 3: why didn't they agree?
Speaker 7: Yeah, that's an excellent question, And so it was almost
Speaker 7: kind of a tet for tet arguments, so that the
Speaker 7: Center's arguing, well, you know, we think that the term
Speaker 7: regulate is sufficient, that it does include the authority to
Speaker 7: impose tariffs. And then with respect to the argument regarding
Speaker 7: the major question doctrine and the non delegation doctrine, the
Speaker 7: Descent raised a really interesting argument, and they said, well, yeah,
Speaker 7: but this involves issues implicating national security and foreign policy,
Speaker 7: and we think that the major questioned doctrine doesn't apply
Speaker 7: in the context of the exercise of power by the
Speaker 7: president to protect national security, defend national security, or in
Speaker 7: the field of foreign affairs, and if it does, it
Speaker 7: should be liberally applied, not in a narrow way, but
Speaker 7: to afford the president to exercise terrorf authority, and the
Speaker 7: same thing with a non delegation doctrine. That again, the
Speaker 7: court should be very deferential to the president in the
Speaker 7: field of national security and foreign policy. And that could
Speaker 7: very well be an argument that the Supreme Court finds
Speaker 7: persuasive in striking down the Federal Court decision and affirming
Speaker 7: the tariffs.
Speaker 3: The Supreme Court has repeatedly ruled in the president's favor,
Speaker 3: expanding and expanding and expanding presidential power.
Speaker 1: Do you think they're likely to do the same here.
Speaker 7: Well, the US Supreme Court is ruled in favor of
Speaker 7: President Trump and against lower federal court decisions, and at
Speaker 7: least sixteen rulings since April of twenty twenty five, and
Speaker 7: you know, they've lifted injunctions that have been imposed on
Speaker 7: actions taken by the president, again in favor of the
Speaker 7: Trump administration. This is the so called you know, shadow docket.
Speaker 7: And so the Supreme Court, based upon these decisions, they
Speaker 7: seem to be very deferential to the president's exercise of
Speaker 7: executive authority, and they seem to be comfortable and fine
Speaker 7: with an expansion of the president's executive authority based upon
Speaker 7: these previous rulings. And so I think if this pattern continues,
Speaker 7: if we see this pattern continue, then then I think
Speaker 7: it would likely result in a decision that's favorable to
Speaker 7: President Trump and affirming his authority to impose Tariff's under AVA.
Speaker 3: I keep waiting to see what move by Trump will
Speaker 3: be outrageous enough or extend his authority enough that the
Speaker 3: Court is going to finally say, Okay, stop there.
Speaker 7: Yeah, it's hard to identify that benchmark, you know, when
Speaker 7: that red line would be crossed, especially considering the fact
Speaker 7: that the Supreme Court not that long ago, relatively recently
Speaker 7: a role that the president is virtually immune for prosecution.
Speaker 7: But any action taken by the President pursuing who is
Speaker 7: Article two authorities, you know, he's immune and he can't
Speaker 7: be criminally prosecuted, which I'm sure has only in bold
Speaker 7: in the president in terms of really stretching the bounds,
Speaker 7: you know, pressing the boundaries, you know, the extreme boundaries
Speaker 7: of his authority.
Speaker 1: There are other laws that he could use.
Speaker 3: Scott Besant was talking about section three three eight to
Speaker 3: the smooth Holly Terar Effect of nineteen thirty. Then I've
Speaker 3: heard about the Trade Act of nineteen seventy four, So
Speaker 3: I mean, what could he use if he wants to
Speaker 3: stay away from a well.
Speaker 7: That's a secretary Vessent has recently commented on the Federal
Speaker 7: Circuit Court decision and basically making two two points, you know. One,
Speaker 7: he says that he is extremely confident that the Supreme
Speaker 7: Court is going to uphold the Trump tariffs, and that
Speaker 7: even if the Supreme Court rules against the Trump administration
Speaker 7: or limits its authority under AEPA, that there are several
Speaker 7: other statutes enacted by Congress that the president could use
Speaker 7: to continue the tariffs. Now, those statutes are not as
Speaker 7: broad in scope as IEPA. Therefore, there would be certain
Speaker 7: there would be additional prerequisites, you know, conditions and limitations
Speaker 7: placed on the president with respect to imposing tariffs under
Speaker 7: those statutes. But there certainly are other statutes that the
Speaker 7: Trump administration could leverage to continue the tariffs.
Speaker 1: So they picked this because it was fast and easy.
Speaker 7: Yeah, yeah, largely largely so because again the requirements are
Speaker 7: not as demanding as they are in some of these
Speaker 7: other statutes, and the kind of limitations that are imposed
Speaker 7: on those statutes aren't present with the International Emergency Economic
Speaker 7: Powers Act. So I eba cleaner, quicker, easier. Let's take
Speaker 7: the path of least resistance, which is ABA, instead of
Speaker 7: going through these other statutes that are more complicated.
Speaker 3: So the tariffs still on steel, aluminum, and automobiles are
Speaker 3: unaffected by this decision.
Speaker 7: Yes, that's correct, and the reason being is that those
Speaker 7: tariffs were enacted under a different statute. They weren't authorized
Speaker 7: under AEPA.
Speaker 1: I mean, so, how much of a setback is this
Speaker 1: for Trump?
Speaker 7: Well, we'll see. I do think even if let's assume
Speaker 7: that the Supreme Court affirms the Federal Circuit Court decision
Speaker 7: striking down tariffs and RIPA, so then the administration has
Speaker 7: to pursue Plan B. I do think that those other statutes, again,
Speaker 7: they weren't narrow and focused, and they impose greater restrictions
Speaker 7: and limitations. So that is going to I think cumulatively
Speaker 7: limit the scope of the tariffs that are currently in place.
Speaker 7: But at the end of the day, what does that mean?
Speaker 7: You know, the president doesn't get one hundred percent of
Speaker 7: the tariffs that he's imposed. He only gets eighty percent
Speaker 7: or seventy five percent. We'll see, and I think that
Speaker 7: that many of the tariffs will continue, but just based
Speaker 7: on different authority. But I think that maybe the more
Speaker 7: fundamental issue here is the uncertainty this decision by the
Speaker 7: Federal Circuit is creating for investors in the economy. And
Speaker 7: then what are the implications? So if the if the
Speaker 7: AEPA tariffs are struck down, what are the implications of that?
Speaker 7: So does that I mean, the tariffs that have been
Speaker 7: paid under these executive orders have to be repaid, the
Speaker 7: businesses that pay those tariffs have to be compensated. So
Speaker 7: there's a lot of complicated What are the implications of
Speaker 7: this with respect to ongoing negotiations with other countries the
Speaker 7: United States and other countries involving the current tariffs. So
Speaker 7: if the tariffs are struck down on RAIPA, is that
Speaker 7: going to disrupt those negotiations or those negotiations going to
Speaker 7: going to terminate? What's the effect going to be? And
Speaker 7: so the ripple effects of the Supreme Court's decision, whichever
Speaker 7: way it rules, is going to have I think a
Speaker 7: substantial significant impact on the global economy.
Speaker 1: Thanks so much for joining me.
Speaker 5: Jimmy.
Speaker 3: That's Professor Jimmy Garoul of Notre Dame Law School. And
Speaker 3: that's it for this edition of The Bloomberg Law Show.
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