1
00:00:02,520 --> 00:00:11,879
Speaker 1: Bloomberg Audio Studios, podcasts, radio News. This is Masters in

2
00:00:11,960 --> 00:00:15,480
Speaker 1: Business with Barry Ritholt on Bloomberg Radio.

3
00:00:16,680 --> 00:00:19,480
Speaker 2: I know I say it every week, but this week

4
00:00:19,600 --> 00:00:23,919
Speaker 2: I have an extra extra special guest. Neil Kadial is

5
00:00:23,960 --> 00:00:27,800
Speaker 2: the former Solicitor General of the United States, where he

6
00:00:27,920 --> 00:00:33,159
Speaker 2: focused on appellate and complex litigation on behalf of the

7
00:00:33,200 --> 00:00:37,040
Speaker 2: Department of Justice. He has argued more than fifty cases

8
00:00:37,080 --> 00:00:40,239
Speaker 2: before the Supreme Court. He is the recipient of the

9
00:00:40,440 --> 00:00:44,720
Speaker 2: highest civilian award by the US Department of Justice, the

10
00:00:45,120 --> 00:00:48,920
Speaker 2: Edmund Randolph Award, which he received in twenty eleven. The

11
00:00:49,040 --> 00:00:52,360
Speaker 2: Chief Justice of the United States Supreme Court appointed him

12
00:00:52,400 --> 00:00:56,080
Speaker 2: to the Advisory Committee on Federal Appellate Rules. He has

13
00:00:56,200 --> 00:01:01,280
Speaker 2: won every accolade that an attorney can win, Litigator of

14
00:01:01,320 --> 00:01:05,720
Speaker 2: the Year, Top one hundred Lawyers, five hundred leaving Lawyers

15
00:01:05,760 --> 00:01:09,880
Speaker 2: in DC, the most financially innovative lawyer, on and on

16
00:01:09,920 --> 00:01:14,200
Speaker 2: the list goes. He just has a CV that is

17
00:01:14,319 --> 00:01:18,040
Speaker 2: really not to be believed. I reached out to Neil

18
00:01:18,200 --> 00:01:23,480
Speaker 2: because he was representing the Plainiffs in the big tariff

19
00:01:23,840 --> 00:01:29,280
Speaker 2: case Vos Selections versus Donald Trump, President, which he took

20
00:01:29,319 --> 00:01:34,319
Speaker 2: over after the Plainiffs won at the International Court of

21
00:01:34,400 --> 00:01:39,360
Speaker 2: Trade in DC. He argued the case in front of

22
00:01:39,400 --> 00:01:43,200
Speaker 2: a full on bank hearing all eleven judges in the

23
00:01:43,319 --> 00:01:50,280
Speaker 2: DC Court of Appeals. We recorded this on Wednesday, August

24
00:01:50,360 --> 00:01:54,000
Speaker 2: twenty seventh, a few days before Labor Day weekend. We

25
00:01:54,160 --> 00:01:57,520
Speaker 2: finished the recording and lo and behold. Two days later,

26
00:01:58,240 --> 00:02:02,200
Speaker 2: the decision comes down. He wins a resounding victory, seven

27
00:02:02,240 --> 00:02:06,880
Speaker 2: to four. The court very much bought into his arguments

28
00:02:06,920 --> 00:02:11,240
Speaker 2: that the tariffs and any sort of taxes, duties, levies

29
00:02:12,040 --> 00:02:15,679
Speaker 2: requires authorization from Congress. It is not within the purview

30
00:02:15,960 --> 00:02:20,480
Speaker 2: of the executive branch of the President. So once we

31
00:02:20,600 --> 00:02:23,960
Speaker 2: got that decision, I reached out to Neil again, and

32
00:02:24,040 --> 00:02:27,080
Speaker 2: on Sunday, over the holiday weekends, I hopped off the beach.

33
00:02:27,120 --> 00:02:29,600
Speaker 2: We got on the phone call for a half hour

34
00:02:29,680 --> 00:02:32,320
Speaker 2: and recorded what he thought of the results, what he

35
00:02:32,360 --> 00:02:34,840
Speaker 2: thought about the opinion, where the case is likely to

36
00:02:34,880 --> 00:02:37,720
Speaker 2: go from here, how things look in terms of the

37
00:02:38,360 --> 00:02:41,000
Speaker 2: odds that the Supreme Court are going to hear this.

38
00:02:41,880 --> 00:02:46,640
Speaker 2: I thought the entire conversation was absolutely fascinating, not just

39
00:02:46,720 --> 00:02:50,760
Speaker 2: because hey, this is news right now, and because he

40
00:02:50,800 --> 00:02:55,320
Speaker 2: won the case two days later. He's just such a thoughtful,

41
00:02:55,880 --> 00:03:01,359
Speaker 2: intelligent lawyer who really takes his role as an officer

42
00:03:01,400 --> 00:03:05,800
Speaker 2: of the court and helping to define the jurisprunes of

43
00:03:06,240 --> 00:03:11,560
Speaker 2: American law very very seriously. Just such a bright, thoughtful

44
00:03:12,280 --> 00:03:16,880
Speaker 2: guy who just wants us to respect the Constitution. I

45
00:03:16,960 --> 00:03:20,360
Speaker 2: thought the conversation was fascinating. I think you will also.

46
00:03:20,480 --> 00:03:24,680
Speaker 2: We'll start out with our PostScript the conversation after we

47
00:03:24,760 --> 00:03:28,160
Speaker 2: found out that Katiel's clients won at the appellate level,

48
00:03:28,440 --> 00:03:31,960
Speaker 2: and then we'll go to the entire our conversation we

49
00:03:32,040 --> 00:03:35,160
Speaker 2: had while we still didn't know what the outcome of

50
00:03:35,200 --> 00:03:39,040
Speaker 2: the case was, with no further ado, my discussion with

51
00:03:39,160 --> 00:03:46,760
Speaker 2: Appellet attorney Neil Kadial. First off, Neil, congratulations, you just

52
00:03:46,880 --> 00:03:52,440
Speaker 2: won a major repellate case in Vos Selections versus Donald Trump.

53
00:03:52,840 --> 00:03:55,920
Speaker 2: So congrats, Thank you so much.

54
00:03:56,200 --> 00:03:58,480
Speaker 3: Yeah, I think I saw you and we had our

55
00:03:58,520 --> 00:04:01,560
Speaker 3: interview the day before the decision came down. The way

56
00:04:01,560 --> 00:04:04,120
Speaker 3: the Court of Appeals works like the US Supreme Court,

57
00:04:04,360 --> 00:04:07,840
Speaker 3: they never tell you in advance when a decision's coming down.

58
00:04:08,200 --> 00:04:10,200
Speaker 3: And indeed it was a little I think past five

59
00:04:10,200 --> 00:04:12,920
Speaker 3: o'clock on Friday, right before Labor Day, and I was

60
00:04:12,960 --> 00:04:15,000
Speaker 3: about to leave the office, and then I heard my

61
00:04:15,120 --> 00:04:17,800
Speaker 3: email ding and I look at it and I'm like, well,

62
00:04:17,839 --> 00:04:20,039
Speaker 3: I might as well see what this is. I assumed

63
00:04:20,040 --> 00:04:23,839
Speaker 3: it was just some you know, minor thing, and they're like, whoa,

64
00:04:23,920 --> 00:04:27,080
Speaker 3: it's the decision. And you know, Barry, they let me

65
00:04:27,160 --> 00:04:30,040
Speaker 3: know the decision at the very same time. They let

66
00:04:30,120 --> 00:04:32,760
Speaker 3: the world know, because otherwise, if they let me know

67
00:04:32,800 --> 00:04:36,480
Speaker 3: in advance, you know, that's private information. This is the

68
00:04:36,560 --> 00:04:39,600
Speaker 3: kind of information that does move markets. And so they

69
00:04:39,680 --> 00:04:42,159
Speaker 3: let the entire world know, including me, at the very

70
00:04:42,200 --> 00:04:42,800
Speaker 3: same time.

71
00:04:43,240 --> 00:04:47,920
Speaker 2: So let's put this into a little timeline. We had

72
00:04:47,960 --> 00:04:55,880
Speaker 2: our recording Wednesday, August twenty seventh. The decision dropped around

73
00:04:55,880 --> 00:05:00,760
Speaker 2: five o'clock on Friday, August twenty ninth. Today is Sunday,

74
00:05:00,880 --> 00:05:05,240
Speaker 2: August thirty. First, everybody else is on the beach. I

75
00:05:05,279 --> 00:05:07,719
Speaker 2: know you're leaving for Europe in a couple of days,

76
00:05:07,720 --> 00:05:10,400
Speaker 2: but I wanted to just touch base with you and

77
00:05:10,600 --> 00:05:13,600
Speaker 2: try and figure out where this goes from here. So

78
00:05:14,279 --> 00:05:17,720
Speaker 2: let's start out with the decision. I thought the majority

79
00:05:17,800 --> 00:05:22,400
Speaker 2: decision seven to four your way. I thought it was

80
00:05:22,440 --> 00:05:29,280
Speaker 2: a pretty powerful refutation of the executive's ability to just

81
00:05:29,400 --> 00:05:32,560
Speaker 2: impose tariffs I don't want to say on a whim,

82
00:05:33,320 --> 00:05:38,880
Speaker 2: but lacking the specific following of the AIBA rules and

83
00:05:38,920 --> 00:05:41,920
Speaker 2: what an emergency actually is, can you address that a

84
00:05:41,960 --> 00:05:42,360
Speaker 2: little bit?

85
00:05:42,760 --> 00:05:45,520
Speaker 3: Yeah, I think that the seven judges and the majority

86
00:05:45,720 --> 00:05:49,800
Speaker 3: were saying exactly what we've said all along, which is,

87
00:05:50,320 --> 00:05:52,599
Speaker 3: maybe these terrifts are a good idea, maybe they're a

88
00:05:52,640 --> 00:05:55,839
Speaker 3: bad idea, but they can't be imposed by the president's

89
00:05:55,960 --> 00:05:59,040
Speaker 3: pen alone. You got to go to Congress and get

90
00:05:59,080 --> 00:06:02,720
Speaker 3: that author as a that that's our constitutional system. And

91
00:06:02,760 --> 00:06:05,800
Speaker 3: what the seven judges said is that's exactly right. That

92
00:06:05,880 --> 00:06:09,200
Speaker 3: the Congress has never given the president such a sweeping

93
00:06:09,680 --> 00:06:11,640
Speaker 3: power to just do it on his own, and if

94
00:06:11,680 --> 00:06:14,800
Speaker 3: they did, they said it'd be unconstitutional. But they said

95
00:06:14,880 --> 00:06:18,080
Speaker 3: that isn't what's going on here. And the president has

96
00:06:18,080 --> 00:06:20,240
Speaker 3: an easy fix if he wants to. He could go

97
00:06:20,279 --> 00:06:23,760
Speaker 3: to Congress and seek approval for the tariffs that he wants.

98
00:06:24,080 --> 00:06:26,120
Speaker 3: That's what he did the first time around, as we

99
00:06:26,160 --> 00:06:29,200
Speaker 3: talked about last week. You know, that's something that failed

100
00:06:29,279 --> 00:06:32,000
Speaker 3: in Congress, and so maybe that's why he doesn't want

101
00:06:32,040 --> 00:06:35,800
Speaker 3: to do it. Obviously, these tariffs are highly unpopular, but nonetheless,

102
00:06:36,080 --> 00:06:39,080
Speaker 3: you know, the Congress is controlled by his party, and

103
00:06:39,279 --> 00:06:41,320
Speaker 3: you know that's the place to start. Don't run to

104
00:06:41,360 --> 00:06:43,799
Speaker 3: the federal courts to do what you can't do in Congress.

105
00:06:44,400 --> 00:06:47,560
Speaker 2: So I want to talk about the dissent in a bid,

106
00:06:47,600 --> 00:06:50,920
Speaker 2: but let's just talk about what the appellate court did,

107
00:06:51,839 --> 00:06:54,240
Speaker 2: which I was somewhat confused by, and maybe you can

108
00:06:54,279 --> 00:06:58,280
Speaker 2: clarify this. They remand it back to the International Court

109
00:06:58,279 --> 00:07:02,800
Speaker 2: of Trade in d State, which is a US court

110
00:07:03,320 --> 00:07:07,800
Speaker 2: for findings about who this applies to. Like, it seems

111
00:07:07,839 --> 00:07:10,080
Speaker 2: sort of odd to say, well, and only might apply

112
00:07:10,120 --> 00:07:13,000
Speaker 2: to the litigants. What are we going to have seven

113
00:07:13,040 --> 00:07:17,080
Speaker 2: million cases on this tariffs? It would seem that either

114
00:07:17,080 --> 00:07:21,160
Speaker 2: it's constitutional or unconstitutional and that applies to everybody. Or

115
00:07:21,160 --> 00:07:22,520
Speaker 2: am I being naive?

116
00:07:22,920 --> 00:07:26,120
Speaker 3: I think that's basically right Berry that I think ultimately

117
00:07:26,160 --> 00:07:29,720
Speaker 3: the question is are these tariffs legal or illegal? If,

118
00:07:29,760 --> 00:07:32,360
Speaker 3: as the Court of Appeals said, they're illegal, then the

119
00:07:32,600 --> 00:07:37,360
Speaker 3: vast vast majority of Trump's tariffs are unconstitutional, illegal, can't

120
00:07:37,360 --> 00:07:40,560
Speaker 3: be imposed, and people who've have them imposed, you know,

121
00:07:40,600 --> 00:07:44,200
Speaker 3: may have remedies and recourses. What the court also did, though,

122
00:07:44,240 --> 00:07:47,160
Speaker 3: and you're referring to a fairly technical part of the decision,

123
00:07:47,360 --> 00:07:50,080
Speaker 3: is it sent it case back to the lower court

124
00:07:50,120 --> 00:07:53,160
Speaker 3: to evaluate the scope of the remedies. And that's because

125
00:07:53,200 --> 00:07:56,040
Speaker 3: the US Supreme Court, just very recently, in the birthright

126
00:07:56,080 --> 00:08:00,160
Speaker 3: citizenship case, has announced some new ways of thinking about

127
00:08:00,440 --> 00:08:03,960
Speaker 3: relief on parties, in particular in class actions and things

128
00:08:04,040 --> 00:08:06,680
Speaker 3: like that. And so I think the court Federal Circuit

129
00:08:06,680 --> 00:08:09,520
Speaker 3: did the prudent thing here by just saying with respect

130
00:08:09,560 --> 00:08:11,800
Speaker 3: to that, i'd like we'd like the lower court to

131
00:08:11,880 --> 00:08:14,520
Speaker 3: evaluate it. I think that's pretty much a sideshow at

132
00:08:14,520 --> 00:08:17,960
Speaker 3: this point. My strong hunch is that the federal government

133
00:08:18,280 --> 00:08:21,360
Speaker 3: has a strong interest in resolving this question. After all,

134
00:08:21,400 --> 00:08:25,120
Speaker 3: this is a really you know, initiative of President Trump's.

135
00:08:25,120 --> 00:08:27,800
Speaker 3: It's been declared unconstitutional. So I think they're going to

136
00:08:27,840 --> 00:08:30,440
Speaker 3: go to the Supreme Court. I mean, again, I wish

137
00:08:30,480 --> 00:08:32,640
Speaker 3: that weren't the case. I wish they'd go to Congress,

138
00:08:32,679 --> 00:08:35,720
Speaker 3: which is the way that our constitution commands things. But

139
00:08:36,280 --> 00:08:39,160
Speaker 3: you know, according to the President's tweets and the like,

140
00:08:39,440 --> 00:08:40,880
Speaker 3: they want to go to the Supreme Court.

141
00:08:41,800 --> 00:08:44,880
Speaker 2: So what is the process like for this to go

142
00:08:45,200 --> 00:08:50,120
Speaker 2: up to Scotus first, the remand back to the district

143
00:08:50,160 --> 00:08:55,080
Speaker 2: court not relevant, that's just a very specific remedy question.

144
00:08:56,240 --> 00:09:02,199
Speaker 2: Assuming the petition for sociari is filed by the government,

145
00:09:03,920 --> 00:09:06,280
Speaker 2: what are the options? What might the Supreme Court do?

146
00:09:06,920 --> 00:09:08,559
Speaker 3: Yeah, so I think you're right to say that the

147
00:09:09,280 --> 00:09:12,680
Speaker 3: lower court proceedings on relief are relevant here. Indeed, the

148
00:09:12,720 --> 00:09:17,760
Speaker 3: Federal Circuit said that lower court has no role at

149
00:09:17,840 --> 00:09:20,320
Speaker 3: least until October fourteenth, because they wanted to give the

150
00:09:20,360 --> 00:09:23,719
Speaker 3: government time to file what's called a petition for cucuare,

151
00:09:23,880 --> 00:09:26,880
Speaker 3: which is a formal request to the US Supreme Court

152
00:09:26,920 --> 00:09:30,960
Speaker 3: to hear the case. The government is saying that in

153
00:09:31,000 --> 00:09:34,360
Speaker 3: these tweets by President the President and others, that they

154
00:09:34,440 --> 00:09:37,680
Speaker 3: will file that petition for cuchuari, ask the Supreme Court

155
00:09:37,720 --> 00:09:39,800
Speaker 3: to hear the case, and then it's obviously up to

156
00:09:39,800 --> 00:09:43,640
Speaker 3: the Supreme Court to decide. Statistically, when the government asks

157
00:09:43,720 --> 00:09:48,040
Speaker 3: them to hear a case, particularly one that has important consequences,

158
00:09:48,440 --> 00:09:51,960
Speaker 3: the court does hear the case. So the court very

159
00:09:52,000 --> 00:09:54,280
Speaker 3: well may set the case for oral argument, and then

160
00:09:54,320 --> 00:09:56,760
Speaker 3: there'll be the argument from the two sides as to

161
00:09:57,160 --> 00:09:59,960
Speaker 3: whether or not this lower court decision that we want

162
00:10:01,040 --> 00:10:05,520
Speaker 3: declaring President Trump's Taristan constitutional, whether that will be upheld

163
00:10:05,559 --> 00:10:06,839
Speaker 3: by the US Supreme Court.

164
00:10:07,600 --> 00:10:12,160
Speaker 2: So I was kind of intrigued by the descent, which

165
00:10:13,480 --> 00:10:18,000
Speaker 2: I'm not a practicing attorney anymore, so I'm not up

166
00:10:18,080 --> 00:10:21,760
Speaker 2: to date in what is the latest thinking in terms

167
00:10:21,840 --> 00:10:25,040
Speaker 2: of art. But it sort of seemed like one of

168
00:10:25,080 --> 00:10:30,040
Speaker 2: the descents suggested that it's an emergency. If the president

169
00:10:30,200 --> 00:10:34,439
Speaker 2: declares in an emergency, kind of makes that word meaningless.

170
00:10:35,040 --> 00:10:38,240
Speaker 2: How did you read the significance of the descent and

171
00:10:38,320 --> 00:10:42,720
Speaker 2: what might it mean to the hearing if this ultimately

172
00:10:42,760 --> 00:10:44,079
Speaker 2: goes to the Supreme Court.

173
00:10:44,320 --> 00:10:47,280
Speaker 3: I think that's exactly right on what you're saying, which is,

174
00:10:47,320 --> 00:10:49,960
Speaker 3: if the descent were right, it basically reads the word

175
00:10:49,960 --> 00:10:53,040
Speaker 3: emergency out of the statute. It gives carte blanche deference

176
00:10:53,480 --> 00:10:56,120
Speaker 3: to the president, and the Supreme Court in an earlier

177
00:10:56,200 --> 00:10:58,920
Speaker 3: case back in nineteen eleven, said you can't do that

178
00:10:58,960 --> 00:11:02,040
Speaker 3: with the word emergency, And here, I think Verry, the

179
00:11:02,080 --> 00:11:05,080
Speaker 3: other really important point is that the law that the

180
00:11:05,120 --> 00:11:09,400
Speaker 3: President is citing AIPA doesn't just talk about emergency. It

181
00:11:09,440 --> 00:11:14,079
Speaker 3: requires it to be unusual and extraordinary. And the president's

182
00:11:14,160 --> 00:11:18,840
Speaker 3: own executive order when he imposed these tariffs, said that

183
00:11:18,880 --> 00:11:22,160
Speaker 3: the trade deficits were persistent and gone on for fifty years,

184
00:11:22,200 --> 00:11:25,160
Speaker 3: and the opposite of the unusual and extraordinary. And look,

185
00:11:25,200 --> 00:11:28,760
Speaker 3: of course you want the president, in a genuine, true

186
00:11:28,880 --> 00:11:33,280
Speaker 3: emergency that's unusual and extraordinary, to have extra powers, because

187
00:11:33,280 --> 00:11:37,160
Speaker 3: if Congress can't meet to repel some threat or something

188
00:11:37,240 --> 00:11:39,440
Speaker 3: like that, you want the president to have some gap

189
00:11:39,480 --> 00:11:41,960
Speaker 3: billing power. This is the opposite of that. I mean,

190
00:11:42,000 --> 00:11:44,760
Speaker 3: Congress is in session, they're passing bill after bill and

191
00:11:44,800 --> 00:11:46,960
Speaker 3: the like, and of course they're controlled by the same

192
00:11:47,000 --> 00:11:50,120
Speaker 3: political party as the president. So the idea that Congress

193
00:11:50,160 --> 00:11:53,120
Speaker 3: can't act is you know, to use the technical legal

194
00:11:53,200 --> 00:11:54,040
Speaker 3: term poppycock.

195
00:11:55,880 --> 00:11:59,280
Speaker 2: Coming up, we continue our conversation with a pellet litigator.

196
00:11:59,440 --> 00:12:03,120
Speaker 2: Neil Tu. I'm Barry Ridults. You're listening to Masters in

197
00:12:03,200 --> 00:12:07,640
Speaker 2: Business on Bloomberg Radio. Let's broaden this out a little bit.

198
00:12:08,720 --> 00:12:12,880
Speaker 2: I think this is an important case because I'm a

199
00:12:12,920 --> 00:12:18,720
Speaker 2: market participant and tariffs are attacks. They're a headwind to

200
00:12:18,920 --> 00:12:23,160
Speaker 2: consumer spending and other economic activities. But stepping back and

201
00:12:23,160 --> 00:12:27,720
Speaker 2: looking at this from a constitutional standard, how much of

202
00:12:27,760 --> 00:12:33,720
Speaker 2: this is focusing on how much authority the executive branch

203
00:12:33,920 --> 00:12:39,240
Speaker 2: of the US government has. Is this an attempt to

204
00:12:39,320 --> 00:12:45,319
Speaker 2: rebalance the three parts of government by this particular president,

205
00:12:45,760 --> 00:12:48,320
Speaker 2: or is this just no we want our tariffs, and

206
00:12:48,800 --> 00:12:52,000
Speaker 2: we want to stop all these bad things that the

207
00:12:52,080 --> 00:12:53,079
Speaker 2: tariffs will cure.

208
00:12:53,720 --> 00:12:56,320
Speaker 3: Yeah, I view this decision not as a rebalancing of

209
00:12:56,320 --> 00:12:59,640
Speaker 3: our constitutional separation of powers up but rather a return

210
00:12:59,760 --> 00:13:04,680
Speaker 3: to our founder's original concept was, which was Congress makes

211
00:13:04,720 --> 00:13:08,679
Speaker 3: the laws, the president enforces them, the courts decide whether

212
00:13:08,720 --> 00:13:12,760
Speaker 3: those laws are legal or not. And here what happened

213
00:13:12,840 --> 00:13:15,439
Speaker 3: is you had a president who colored well outside of

214
00:13:15,480 --> 00:13:19,840
Speaker 3: the lines, and you know, asserted an extraordinary power that

215
00:13:20,000 --> 00:13:24,440
Speaker 3: no president in American history has ever asserted on his own.

216
00:13:24,800 --> 00:13:27,200
Speaker 3: And I think the court is doing here what the

217
00:13:27,240 --> 00:13:31,000
Speaker 3: courts have done time immemorial in other cases, whether it

218
00:13:31,120 --> 00:13:33,840
Speaker 3: was the seizure of the steel mills by President Truman

219
00:13:34,120 --> 00:13:38,240
Speaker 3: in nineteen fifty two, whether it was President Bush's law

220
00:13:38,320 --> 00:13:43,000
Speaker 3: free zone at Guantanamo after the horrific nine to eleven attacks,

221
00:13:43,280 --> 00:13:47,800
Speaker 3: whether it was you know, President Biden's student loan initiative programs.

222
00:13:48,160 --> 00:13:51,199
Speaker 3: In all of these cases, you've had presidents that try

223
00:13:51,280 --> 00:13:54,840
Speaker 3: and ascertain muscular powers and the court pushes back on them.

224
00:13:55,120 --> 00:13:59,040
Speaker 3: And this is I think a pretty extreme illustration of

225
00:13:59,400 --> 00:14:02,280
Speaker 3: a president and whose asserting powers that he has no

226
00:14:02,360 --> 00:14:03,200
Speaker 3: business asserting.

227
00:14:04,040 --> 00:14:07,880
Speaker 2: So at the appellate level. It was seven to four

228
00:14:07,880 --> 00:14:12,120
Speaker 2: of the dissent was written by justice appointed by President Obama.

229
00:14:12,440 --> 00:14:15,560
Speaker 2: It's kind of a little bit surprising to me when

230
00:14:15,600 --> 00:14:19,760
Speaker 2: you look at the lay of the Supreme Court. I

231
00:14:19,800 --> 00:14:22,120
Speaker 2: know a lot of people tend to look at that

232
00:14:22,880 --> 00:14:28,320
Speaker 2: as Democrats versus Republicans. But the appallate attorneys, I know,

233
00:14:28,400 --> 00:14:31,960
Speaker 2: and the people who are constitutional lawyers tend to look

234
00:14:32,000 --> 00:14:37,440
Speaker 2: at it as originalists versus more modern interpreters. How are

235
00:14:37,480 --> 00:14:40,800
Speaker 2: you looking at this case when it gets now, assuming

236
00:14:40,880 --> 00:14:43,200
Speaker 2: it goes up to the Supreme Court, how are you

237
00:14:43,280 --> 00:14:45,120
Speaker 2: looking at the context of this case?

238
00:14:45,560 --> 00:14:49,120
Speaker 3: I love the question because you know, oftentimes people say

239
00:14:49,200 --> 00:14:52,800
Speaker 3: things like, well, the Supreme Court is appointed by Republicans,

240
00:14:52,880 --> 00:14:56,040
Speaker 3: so they only wrote republican or nonsense like that. This

241
00:14:56,240 --> 00:14:59,000
Speaker 3: is not my experience. I mean, I've been lucky to

242
00:14:59,080 --> 00:15:01,160
Speaker 3: argue fifty two K is there, and I just don't

243
00:15:01,200 --> 00:15:04,560
Speaker 3: see it in the same way as those kind of

244
00:15:04,680 --> 00:15:07,480
Speaker 3: pundits see it. And you know, I think you're right

245
00:15:07,520 --> 00:15:09,920
Speaker 3: to say the decision by the seven to four courts

246
00:15:09,920 --> 00:15:12,920
Speaker 3: a good illustration of that. The dissent written by a

247
00:15:13,000 --> 00:15:17,120
Speaker 3: judge who was appointed by a democratic president. Our majority opinion,

248
00:15:17,200 --> 00:15:20,120
Speaker 3: the senior most judge, and the majority is Judge Lourie,

249
00:15:20,240 --> 00:15:24,120
Speaker 3: who was appointed by President Bush, but says that these

250
00:15:24,200 --> 00:15:26,960
Speaker 3: terrorists are unconstitutional. So I don't think it's the right

251
00:15:26,960 --> 00:15:29,240
Speaker 3: way to think about it. I think that there are

252
00:15:29,320 --> 00:15:33,560
Speaker 3: people who take constitutional limits more seriously and others who

253
00:15:33,600 --> 00:15:37,240
Speaker 3: want to defer and avoid getting the courts in the

254
00:15:37,280 --> 00:15:40,720
Speaker 3: middle of something. And so maybe that's one axis that

255
00:15:40,840 --> 00:15:44,440
Speaker 3: sometimes could be used to predict outcomes. But here I think,

256
00:15:44,480 --> 00:15:47,200
Speaker 3: no matter which way you look at it, the president

257
00:15:47,560 --> 00:15:50,600
Speaker 3: doesn't have this power. You know, we might wish he

258
00:15:50,680 --> 00:15:52,720
Speaker 3: had this power. It might be a good idea for

259
00:15:52,840 --> 00:15:55,600
Speaker 3: him to have this power. But our founders were as

260
00:15:55,640 --> 00:15:59,640
Speaker 3: clear as day in Article one, Section eight they said specifically,

261
00:15:59,720 --> 00:16:03,240
Speaker 3: the hour over duties is one given to the Congress,

262
00:16:03,360 --> 00:16:04,360
Speaker 3: not to the president.

263
00:16:05,160 --> 00:16:08,080
Speaker 2: So there are a couple of key issues. This is

264
00:16:08,120 --> 00:16:12,520
Speaker 2: going to turn on the Constitutionality article on section eight,

265
00:16:13,520 --> 00:16:17,320
Speaker 2: the i EPO laws, and what is an emergency? Any

266
00:16:17,360 --> 00:16:21,160
Speaker 2: other factors that might drive this that we should be

267
00:16:21,160 --> 00:16:21,600
Speaker 2: aware of.

268
00:16:22,280 --> 00:16:24,520
Speaker 3: Yeah, I think there's a couple. One is that the

269
00:16:24,520 --> 00:16:27,440
Speaker 3: Supreme Court in recent years has announced something called the

270
00:16:27,480 --> 00:16:31,120
Speaker 3: Major Questions Doctrine, and the idea of that doctrine is

271
00:16:31,160 --> 00:16:34,480
Speaker 3: to say, if Congress is giving the president some sort

272
00:16:34,520 --> 00:16:37,280
Speaker 3: of power, they don't hide it in vague terms. They

273
00:16:37,320 --> 00:16:41,359
Speaker 3: say it really expressly and clearly. You know Justice Scalia's

274
00:16:41,360 --> 00:16:46,360
Speaker 3: phrases that Congress doesn't hide elephants and mouseholes. And at

275
00:16:46,400 --> 00:16:49,840
Speaker 3: the oral argument, I took that to even further. I said,

276
00:16:49,880 --> 00:16:51,880
Speaker 3: you know, this isn't just an elephant in a mousehole,

277
00:16:51,920 --> 00:16:54,920
Speaker 3: it's a galaxy in a key hole. It's an extraordinary

278
00:16:54,920 --> 00:16:59,200
Speaker 3: set of powers given to the president that claimed by

279
00:16:59,200 --> 00:17:03,080
Speaker 3: the president. And you know, this doctrine Major Questions doctrine

280
00:17:03,120 --> 00:17:06,119
Speaker 3: has been used very by the US Supreme Court repeatedly

281
00:17:06,160 --> 00:17:10,760
Speaker 3: to strike down President Biden's initiatives, whether it's over greenhouse gases,

282
00:17:10,840 --> 00:17:13,240
Speaker 3: or whether it's over student loans, or whether it was

283
00:17:13,280 --> 00:17:17,760
Speaker 3: over COVID eviction moratoriums and things like that. And I

284
00:17:17,800 --> 00:17:20,920
Speaker 3: think that you know what the majority said in this

285
00:17:21,080 --> 00:17:23,240
Speaker 3: opinion that we won just a couple of days ago,

286
00:17:23,400 --> 00:17:25,639
Speaker 3: is hey, what's sauce for the goose? The sauce for

287
00:17:25,680 --> 00:17:30,160
Speaker 3: the gander. This applies to other presidential initiatives and including

288
00:17:30,240 --> 00:17:32,439
Speaker 3: of course this one here, and that it would be

289
00:17:32,600 --> 00:17:36,280
Speaker 3: a violation of the Major Questions doctrine for Congress who

290
00:17:36,400 --> 00:17:39,439
Speaker 3: have not even used the word tariff for duty or

291
00:17:39,440 --> 00:17:42,080
Speaker 3: anything like that in APA, and then to have a

292
00:17:42,119 --> 00:17:44,800
Speaker 3: president come along and say, ha, I can now do

293
00:17:44,880 --> 00:17:45,960
Speaker 3: whatever I want.

294
00:17:46,440 --> 00:17:52,919
Speaker 2: So let's expand this a bit. How creative was it

295
00:17:53,200 --> 00:18:00,720
Speaker 2: of the administration to try and get tariffs imposed on RYEPA?

296
00:18:01,240 --> 00:18:05,200
Speaker 2: Is this something that's just wildly outside of what AEPA

297
00:18:05,280 --> 00:18:07,080
Speaker 2: originally was designed about.

298
00:18:07,160 --> 00:18:10,040
Speaker 3: One hundred percent. Nobody, and I've read the legislative history

299
00:18:10,080 --> 00:18:13,639
Speaker 3: behind AEPA so very carefully, nobody thought that this was

300
00:18:14,000 --> 00:18:18,960
Speaker 3: about the tariff power. And so yes, they get a

301
00:18:18,960 --> 00:18:23,560
Speaker 3: a plus plus for creativity the Trump administration and coming

302
00:18:23,680 --> 00:18:26,240
Speaker 3: up with an argument that not only no one in

303
00:18:26,320 --> 00:18:29,960
Speaker 3: Congress thought, no president for fifty years has thought. Now,

304
00:18:30,280 --> 00:18:32,600
Speaker 3: creativity only gets you so far, because you have to

305
00:18:32,600 --> 00:18:35,800
Speaker 3: be at least somewhat faithful and accurate to the original

306
00:18:35,840 --> 00:18:39,359
Speaker 3: text and meaning of the law. And that's where I

307
00:18:39,359 --> 00:18:42,400
Speaker 3: think unfortunately they get n f and they fall down

308
00:18:42,480 --> 00:18:43,040
Speaker 3: on the job.

309
00:18:43,880 --> 00:18:49,639
Speaker 2: So I have a pretty solid recollection of sitting in

310
00:18:49,720 --> 00:18:56,560
Speaker 2: constitutional law classes and occasionally seeing a decision that was

311
00:18:56,800 --> 00:19:00,720
Speaker 2: just perplexing. Although when you're looking at something that's a

312
00:19:00,800 --> 00:19:05,199
Speaker 2: century old, a dread Scott or a separate but equal

313
00:19:05,320 --> 00:19:09,520
Speaker 2: type of decision. Obviously, you're bringing a modern perspective. It's

314
00:19:09,640 --> 00:19:13,520
Speaker 2: very hard to see outside of that. I had the

315
00:19:13,640 --> 00:19:16,760
Speaker 2: same You and I spoke before we had the decision

316
00:19:16,800 --> 00:19:19,560
Speaker 2: come down. I was kind of perplexed that this was

317
00:19:19,600 --> 00:19:23,959
Speaker 2: even like a debate. It seems pretty obvious. None of

318
00:19:24,000 --> 00:19:29,119
Speaker 2: the normal rules for enacting tariffs, none of the procedures, policies,

319
00:19:30,280 --> 00:19:36,160
Speaker 2: or allocation of powers amongst branches of government was followed.

320
00:19:36,440 --> 00:19:40,880
Speaker 2: So what do you imagine the government's argument is going

321
00:19:40,920 --> 00:19:43,320
Speaker 2: to be at the Supreme Court level.

322
00:19:43,720 --> 00:19:46,679
Speaker 3: It's very I think the secret about Supreme Court and

323
00:19:46,760 --> 00:19:50,520
Speaker 3: presidential power advocacy is that, I mean, no matter how

324
00:19:50,600 --> 00:19:55,600
Speaker 3: creative and ridiculous the argument is, if the president voices it,

325
00:19:55,600 --> 00:19:57,680
Speaker 3: it's a court case and it's going to be taken

326
00:19:57,800 --> 00:20:00,840
Speaker 3: seriously by everyone, because it's after all, the press. And

327
00:20:00,880 --> 00:20:03,720
Speaker 3: that's why, you know, when I was the president's top lawyer,

328
00:20:03,800 --> 00:20:08,919
Speaker 3: courtroom lawyer, I was very careful to only make the

329
00:20:09,080 --> 00:20:12,680
Speaker 3: arguments that I thought had very strong basis behind them,

330
00:20:12,720 --> 00:20:16,680
Speaker 3: because you don't want to diminish that credibility that the

331
00:20:16,840 --> 00:20:21,040
Speaker 3: government has with the US Supreme Court. Here, I do

332
00:20:21,119 --> 00:20:24,920
Speaker 3: think that the arguments are quite a stretch for the

333
00:20:24,960 --> 00:20:28,800
Speaker 3: administration to be making. And I think, you know, that's

334
00:20:28,840 --> 00:20:31,680
Speaker 3: what you saw reflected in the seven to four opinion.

335
00:20:32,000 --> 00:20:34,320
Speaker 3: So what do I think that the Solicitor General is

336
00:20:34,320 --> 00:20:35,960
Speaker 3: going to say to the Supreme Court. I think he's

337
00:20:36,000 --> 00:20:39,199
Speaker 3: going to say what he's been saying all along. The

338
00:20:39,240 --> 00:20:42,439
Speaker 3: President says he needs this power. It'd be dangerous to

339
00:20:42,560 --> 00:20:45,560
Speaker 3: unwind all of these deals and present it as a

340
00:20:45,600 --> 00:20:49,560
Speaker 3: fade to complete. And I just think that's the wrong

341
00:20:49,600 --> 00:20:53,760
Speaker 3: way to think about constitutional law, to allow a president

342
00:20:54,240 --> 00:20:56,639
Speaker 3: to do what he wants in the interim and then say, oh,

343
00:20:56,640 --> 00:20:59,399
Speaker 3: it would be too dangerous to unwind it. You know,

344
00:20:59,560 --> 00:21:02,560
Speaker 3: I think it's better to get the constitutional rules right

345
00:21:02,640 --> 00:21:03,320
Speaker 3: the first time.

346
00:21:04,000 --> 00:21:07,200
Speaker 2: So some of the arguments I've seen from the administration

347
00:21:07,400 --> 00:21:11,320
Speaker 2: is not only are the tariffs complicated, and then we've

348
00:21:11,359 --> 00:21:14,520
Speaker 2: spent all this time and effort negotiating them, which this

349
00:21:14,560 --> 00:21:17,520
Speaker 2: would negate, but it would be a negative for the

350
00:21:17,560 --> 00:21:22,480
Speaker 2: global economy. You will cause economic distress around the world

351
00:21:22,640 --> 00:21:26,480
Speaker 2: if you throw these tariffs out. Seems like seems like

352
00:21:26,480 --> 00:21:28,760
Speaker 2: a little bit of a history onic claim.

353
00:21:29,359 --> 00:21:31,520
Speaker 3: Well, I have two things to say about that, And

354
00:21:31,600 --> 00:21:33,399
Speaker 3: you know, and you know, we can defer to the

355
00:21:33,440 --> 00:21:35,960
Speaker 3: president about whether the claim is right or wrong, whether

356
00:21:36,000 --> 00:21:38,080
Speaker 3: it's histrionic or the like. Let's just say it's right.

357
00:21:38,680 --> 00:21:42,240
Speaker 3: Two things. One, If that's right, it walks right into

358
00:21:42,320 --> 00:21:45,520
Speaker 3: the constitutional problem, which is the major questions doctrine. Right

359
00:21:45,600 --> 00:21:48,919
Speaker 3: if the administration is saying, oh, the economy is going

360
00:21:49,000 --> 00:21:52,119
Speaker 3: to collapse without these things, that's exactly the kind of

361
00:21:52,200 --> 00:21:55,280
Speaker 3: major question that you think Congress has to decide, not

362
00:21:55,359 --> 00:21:59,080
Speaker 3: the president. Number one and number two, If it isn't histrionic,

363
00:21:59,160 --> 00:22:02,000
Speaker 3: if it's really right that the economy is going to collapse,

364
00:22:02,600 --> 00:22:04,800
Speaker 3: then it's the easiest thing in the world for the

365
00:22:04,840 --> 00:22:07,880
Speaker 3: President to go to Congress and seek authorization. I mean,

366
00:22:08,080 --> 00:22:10,560
Speaker 3: I don't know the Congress wants the US economy to

367
00:22:10,640 --> 00:22:13,640
Speaker 3: collapse in there, of course, members of his own political

368
00:22:13,680 --> 00:22:17,280
Speaker 3: party that are running Congress, so there's not even a

369
00:22:17,359 --> 00:22:19,600
Speaker 3: politics barrier or anything like that.

370
00:22:20,240 --> 00:22:22,960
Speaker 2: So what are we missing? It seems like this doesn't

371
00:22:23,320 --> 00:22:28,560
Speaker 2: survive on a constitutional basis. AIBA doesn't authorize it. If

372
00:22:28,560 --> 00:22:32,879
Speaker 2: it's a major decision, take it to Congress. What else

373
00:22:33,000 --> 00:22:36,919
Speaker 2: is going on other than I want these tariffs and

374
00:22:36,960 --> 00:22:40,040
Speaker 2: I don't care how they get and acted what am

375
00:22:40,080 --> 00:22:40,920
Speaker 2: I missing here?

376
00:22:41,280 --> 00:22:43,560
Speaker 3: I'm not sure you're missing anything very I think you've

377
00:22:43,560 --> 00:22:47,919
Speaker 3: got a president who's taken an incredibly muscular view of

378
00:22:47,920 --> 00:22:51,520
Speaker 3: his authority and has done all of this stuff to

379
00:22:51,560 --> 00:22:54,880
Speaker 3: the international economy and is now saying, oh too late,

380
00:22:54,920 --> 00:22:58,199
Speaker 3: tone wind it. I'm already done. And you know that

381
00:22:58,320 --> 00:22:59,960
Speaker 3: isn't the way constitutional law works.

382
00:23:00,560 --> 00:23:03,600
Speaker 2: Let's just play this out so by the time people

383
00:23:03,600 --> 00:23:06,199
Speaker 2: hear this, I don't think we'll find out if the

384
00:23:06,240 --> 00:23:11,879
Speaker 2: Supreme Court is going to grant soshiiari immediately, but relatively

385
00:23:11,960 --> 00:23:15,040
Speaker 2: soon if they're interested, sometime in the next few weeks.

386
00:23:15,119 --> 00:23:16,520
Speaker 2: Is that is that a fair timeline.

387
00:23:17,000 --> 00:23:21,080
Speaker 3: It's possible. It requires the government to file a cchuared petition,

388
00:23:21,640 --> 00:23:25,199
Speaker 3: and you know, in other big cases, you know, like

389
00:23:25,280 --> 00:23:28,800
Speaker 3: Guantanamo or healthcare or the like, there are those cecuary

390
00:23:28,880 --> 00:23:32,120
Speaker 3: petitions filed by the government almost immediately. So we will

391
00:23:32,119 --> 00:23:35,920
Speaker 3: see what the government does here. But certainly it's possible

392
00:23:35,960 --> 00:23:39,040
Speaker 3: that they file soon, in which case the Supreme Court

393
00:23:39,040 --> 00:23:41,000
Speaker 3: could give us guidance as to whether they're going to

394
00:23:41,040 --> 00:23:43,439
Speaker 3: hear the case in a matter of a couple of weeks.

395
00:23:44,040 --> 00:23:47,480
Speaker 2: So let's say that happens and the case is heard

396
00:23:48,560 --> 00:23:50,760
Speaker 2: end of September. How soon do we get a decision?

397
00:23:51,280 --> 00:23:52,840
Speaker 3: Yeah, I do think they'd hear the case in the

398
00:23:52,920 --> 00:23:55,560
Speaker 3: end of September, because there's time for briefing, for writing

399
00:23:55,560 --> 00:23:58,160
Speaker 3: the legal papers, and also for friends of the court

400
00:23:58,240 --> 00:24:01,280
Speaker 3: to weigh in and write their own legal papers. So

401
00:24:01,320 --> 00:24:04,919
Speaker 3: I think realistically we'd be talking about a court hearing

402
00:24:05,000 --> 00:24:08,560
Speaker 3: and probably earliest November December, and you know, maybe as

403
00:24:08,640 --> 00:24:11,960
Speaker 3: late as February or March something like that. So it's

404
00:24:12,000 --> 00:24:13,960
Speaker 3: going to take a little while, and it should take

405
00:24:13,960 --> 00:24:17,320
Speaker 3: a little while. Bary. These are really important momentous questions,

406
00:24:17,760 --> 00:24:21,280
Speaker 3: and you know, not just momentus for right now, but

407
00:24:21,400 --> 00:24:25,160
Speaker 3: momentous for American history and the role of the president,

408
00:24:25,240 --> 00:24:28,600
Speaker 3: because what the court says here will govern you know,

409
00:24:28,680 --> 00:24:31,040
Speaker 3: maybe just the case at hand, but it may govern

410
00:24:31,119 --> 00:24:33,240
Speaker 3: other things as well. And so I think the court

411
00:24:33,320 --> 00:24:36,280
Speaker 3: is going to want to proceed with some caution and

412
00:24:36,520 --> 00:24:39,919
Speaker 3: have time for adequate briefing from the parties. That's my gun.

413
00:24:40,680 --> 00:24:44,879
Speaker 2: So what are the state of tariffs presently? The plaintiffs

414
00:24:44,880 --> 00:24:48,560
Speaker 2: in the original case had said, Hey, there's only so

415
00:24:48,720 --> 00:24:51,800
Speaker 2: long we could stay in business with these tariffs, and

416
00:24:51,880 --> 00:24:55,280
Speaker 2: we want a decision as rapidly as possible since they

417
00:24:55,280 --> 00:25:00,880
Speaker 2: were found illegal by the appeals court. Do you have tariffs?

418
00:25:00,880 --> 00:25:03,280
Speaker 2: Do we not have tariffs? What is going on?

419
00:25:03,680 --> 00:25:06,040
Speaker 3: So what the Federal Circuit did is it kind of

420
00:25:06,080 --> 00:25:09,639
Speaker 3: split the baby. It said that the terrorifts will be on.

421
00:25:10,040 --> 00:25:13,120
Speaker 3: The terifts will be permitted, but only for forty five

422
00:25:13,240 --> 00:25:17,159
Speaker 3: days while the government goes and government may go and

423
00:25:17,160 --> 00:25:19,439
Speaker 3: ask the US Supreme Court to hear the case, and

424
00:25:19,480 --> 00:25:21,760
Speaker 3: if they don't hear the case, then the tariffs will

425
00:25:21,800 --> 00:25:24,119
Speaker 3: be declared illegal and unconstitutional and void.

426
00:25:24,320 --> 00:25:27,199
Speaker 2: What are the odds that the Supreme Court chooses to

427
00:25:27,240 --> 00:25:28,119
Speaker 2: not hear the case.

428
00:25:29,440 --> 00:25:31,600
Speaker 3: I'm not going to predict what the Supreme Court is

429
00:25:31,640 --> 00:25:34,280
Speaker 3: going to do. That's just you know, that's that's there.

430
00:25:34,520 --> 00:25:37,320
Speaker 3: I have to leave that for them, and I'm just

431
00:25:37,400 --> 00:25:39,760
Speaker 3: an observer on the outside. But I did want to

432
00:25:39,760 --> 00:25:42,200
Speaker 3: say that what happened with the Federal Circuit did by

433
00:25:42,400 --> 00:25:46,240
Speaker 3: saying forty five days, is it cut the government's time

434
00:25:46,320 --> 00:25:48,800
Speaker 3: and half to file a cerciar I petition. Normally they

435
00:25:48,840 --> 00:25:51,480
Speaker 3: have ninety days to do so. And what the court

436
00:25:51,560 --> 00:25:54,800
Speaker 3: here said is basically, Nope, this is too important. You've

437
00:25:54,800 --> 00:25:56,760
Speaker 3: got to if you want to hear have the Supreme

438
00:25:56,800 --> 00:25:59,040
Speaker 3: Court hear the case, then you've got to do it

439
00:25:59,080 --> 00:26:01,680
Speaker 3: in the next forty five days, otherwise these tariffs will

440
00:26:01,680 --> 00:26:02,720
Speaker 3: be declared illegal.

441
00:26:03,600 --> 00:26:07,200
Speaker 2: So there seems to be a judicial recognition of exactly

442
00:26:07,240 --> 00:26:12,000
Speaker 2: how pressing this is. The Liberation Day was April second.

443
00:26:13,200 --> 00:26:16,320
Speaker 2: The lower court case I think was filed April fourteenth,

444
00:26:16,800 --> 00:26:19,400
Speaker 2: and then there was the decision in May was heard

445
00:26:19,440 --> 00:26:24,240
Speaker 2: pretty rapidly. The on Bank case was heard in July

446
00:26:24,600 --> 00:26:27,480
Speaker 2: of July thirty first, I believe, right, and then a

447
00:26:27,520 --> 00:26:29,920
Speaker 2: month later we just about a month later, we get

448
00:26:30,480 --> 00:26:34,440
Speaker 2: the decision. So it seems like, you know, I traditionally

449
00:26:34,480 --> 00:26:39,879
Speaker 2: think of corporate litigation as a game of delay, delay, delay.

450
00:26:40,359 --> 00:26:43,040
Speaker 2: This really seems to be moving quite rapidly.

451
00:26:43,480 --> 00:26:46,920
Speaker 3: It is moving rapidly, and that's common in presidential power

452
00:26:46,960 --> 00:26:50,199
Speaker 3: cases because there's so much at stake, and so, you know,

453
00:26:50,240 --> 00:26:53,000
Speaker 3: I've been hardened to work with the government attorneys, the

454
00:26:53,040 --> 00:26:57,080
Speaker 3: Trump administration attorneys on a fast time schedule. I think

455
00:26:57,119 --> 00:27:00,399
Speaker 3: that's been you know, beneficial to try and move this

456
00:27:00,480 --> 00:27:03,840
Speaker 3: case and as ultimate resolution along. But I think, you know,

457
00:27:04,000 --> 00:27:07,040
Speaker 3: I think the bottom line for what happened just on Friday,

458
00:27:07,119 --> 00:27:10,840
Speaker 3: for all your viewers and listeners is the Trump tariffs

459
00:27:10,880 --> 00:27:14,960
Speaker 3: were declared unconstitutional and illegal by a seven to four

460
00:27:15,080 --> 00:27:17,600
Speaker 3: vote of our nation's second highest court, the US Court

461
00:27:17,600 --> 00:27:20,800
Speaker 3: of Appeals for the Federal Circuit. And now the question

462
00:27:20,960 --> 00:27:24,040
Speaker 3: is will the Trump administration go to the Supreme Court?

463
00:27:24,400 --> 00:27:26,560
Speaker 3: And then, of course what will the Supreme Court do?

464
00:27:27,320 --> 00:27:29,919
Speaker 2: And the clock is thinking they have forty five days,

465
00:27:29,960 --> 00:27:34,520
Speaker 2: which by my calculation is around October fifteenth or so.

466
00:27:34,760 --> 00:27:35,520
Speaker 2: Is that about right?

467
00:27:35,640 --> 00:27:37,760
Speaker 3: Yeah? I think it's the fourteenth, fourteenth.

468
00:27:37,800 --> 00:27:41,440
Speaker 2: Wow, all right, so six weeks ago we'll be watching

469
00:27:41,480 --> 00:27:46,360
Speaker 2: this really closely. Again, Neil, congratulations on your appellate victory.

470
00:27:47,080 --> 00:27:49,159
Speaker 2: If this goes up, are you going to be the

471
00:27:49,160 --> 00:27:51,760
Speaker 2: one making the argument in front of the Supreme Court?

472
00:27:52,000 --> 00:27:54,440
Speaker 3: No, that's all to be determined. Who knows.

473
00:27:56,680 --> 00:27:59,640
Speaker 2: So that was my conversation over the Labor Day weekend,

474
00:28:00,080 --> 00:28:04,440
Speaker 2: right after we found out that he and his clients

475
00:28:04,480 --> 00:28:07,760
Speaker 2: had won the appeal. Now let's jump to the entire

476
00:28:07,840 --> 00:28:11,160
Speaker 2: conversation that we had a week ago while the outcome

477
00:28:11,200 --> 00:28:13,879
Speaker 2: of the case was still up in the air. My

478
00:28:14,800 --> 00:28:20,560
Speaker 2: Master's in business conversation with a Palette attorney Neil Tatiall,

479
00:28:21,359 --> 00:28:25,080
Speaker 2: let's spend a little time just talking about your background

480
00:28:25,080 --> 00:28:30,119
Speaker 2: and career Dartmouth undergrad jd from Yelle. What was the

481
00:28:30,160 --> 00:28:31,240
Speaker 2: original career plan.

482
00:28:31,880 --> 00:28:34,360
Speaker 3: The original plan was for me to be a professor

483
00:28:34,400 --> 00:28:37,639
Speaker 3: of history, and yeah, I had gone. I went to

484
00:28:37,720 --> 00:28:40,720
Speaker 3: Dartmouth College. As you noted, I probably was one of

485
00:28:40,760 --> 00:28:42,880
Speaker 3: the last kids admitted to Dartmouth. I was not a

486
00:28:42,880 --> 00:28:46,600
Speaker 3: particularly great high school student. And I had this professor,

487
00:28:46,680 --> 00:28:50,600
Speaker 3: Doug Haynes in history at Dartmouth who basically taught me

488
00:28:50,680 --> 00:28:53,560
Speaker 3: to write and taught me how to think. And I

489
00:28:53,680 --> 00:28:56,200
Speaker 3: was so grateful to him, and I felt like I

490
00:28:56,200 --> 00:28:58,960
Speaker 3: should do that with my life as go and give

491
00:28:59,040 --> 00:29:01,640
Speaker 3: back in the way that Doug had given me this

492
00:29:01,760 --> 00:29:04,960
Speaker 3: incredible gift. And so in my senior year I say

493
00:29:04,960 --> 00:29:06,760
Speaker 3: to Doug, I was like, you know, ask him to

494
00:29:06,800 --> 00:29:09,000
Speaker 3: have lunch with me, and I say, I'd really like

495
00:29:09,080 --> 00:29:13,400
Speaker 3: to be a history professor. And you know, frankly, you're

496
00:29:13,440 --> 00:29:15,600
Speaker 3: the one who inspired me and I want to do this.

497
00:29:16,040 --> 00:29:19,520
Speaker 3: And he thought about it and he said, honestly, Neil,

498
00:29:19,720 --> 00:29:22,840
Speaker 3: I don't think you should be a history professor because

499
00:29:22,840 --> 00:29:25,400
Speaker 3: it's really tough, and it's hard to get tenure, and

500
00:29:25,440 --> 00:29:28,080
Speaker 3: you'll have to start in some you know, small town

501
00:29:28,120 --> 00:29:30,000
Speaker 3: in the middle of nowhere. It's hard to meet a

502
00:29:30,000 --> 00:29:34,040
Speaker 3: spouse and so on. He said, look, you're at that

503
00:29:34,080 --> 00:29:36,920
Speaker 3: point I was a national champion debater, and he said,

504
00:29:37,040 --> 00:29:39,160
Speaker 3: my advice to you is to go to law school.

505
00:29:39,160 --> 00:29:41,040
Speaker 3: And in particular, he said, go to Yale Law School,

506
00:29:41,080 --> 00:29:43,840
Speaker 3: which is known for creating law professors, and you can

507
00:29:43,880 --> 00:29:46,400
Speaker 3: do all the same stuff you want to do. But

508
00:29:46,480 --> 00:29:49,360
Speaker 3: as a law professor, where you would get paid three times,

509
00:29:49,640 --> 00:29:53,120
Speaker 3: it's easier to get tenure, your life is a lot easier.

510
00:29:53,680 --> 00:29:55,680
Speaker 3: So I did that. I applied to Yale Law School.

511
00:29:55,720 --> 00:29:58,760
Speaker 3: I got in again, probably one of the last kids admitted.

512
00:30:00,360 --> 00:30:03,760
Speaker 3: And at the law school I had these incredible professors

513
00:30:03,800 --> 00:30:05,840
Speaker 3: who did the same thing that Doug Haynes did for

514
00:30:05,920 --> 00:30:10,720
Speaker 3: me in history, in other areas constitutional law and criminal

515
00:30:10,760 --> 00:30:14,040
Speaker 3: law and the like, and these incredible professors who taught

516
00:30:14,040 --> 00:30:17,080
Speaker 3: me again how to think and how to write, and

517
00:30:17,160 --> 00:30:21,640
Speaker 3: so I was committed to being a law professor. I

518
00:30:21,680 --> 00:30:24,560
Speaker 3: clerked first for Guido Calibrazy, who was the dean of

519
00:30:24,560 --> 00:30:26,040
Speaker 3: the ill Law School, who was put on the Court

520
00:30:26,040 --> 00:30:29,640
Speaker 3: of Appeals, and then for Justice Stephen Bryer. But all

521
00:30:29,680 --> 00:30:31,920
Speaker 3: through that time I knew I wanted to be a

522
00:30:31,960 --> 00:30:34,600
Speaker 3: law professor. So I applied while I was clerking to teach,

523
00:30:34,640 --> 00:30:36,840
Speaker 3: and at the age of I think twenty six years old,

524
00:30:37,160 --> 00:30:39,520
Speaker 3: I took a job teaching at Georgetown Law and that

525
00:30:39,720 --> 00:30:42,640
Speaker 3: was the plan for my life, to be a law professor,

526
00:30:42,680 --> 00:30:43,920
Speaker 3: and nothing but a law professor.

527
00:30:43,920 --> 00:30:46,000
Speaker 2: Do you still do any teaching these days?

528
00:30:46,040 --> 00:30:48,480
Speaker 3: I do, and I love it, and in many ways

529
00:30:48,520 --> 00:30:52,360
Speaker 3: it's my favorite job I've ever had. But there's a

530
00:30:52,400 --> 00:30:55,160
Speaker 3: lot else going on in the world these days, and so,

531
00:30:56,440 --> 00:30:58,560
Speaker 3: you know, it was a little bit by accident that

532
00:30:58,640 --> 00:31:00,920
Speaker 3: I fell into this litigation and thing. Yes, I was

533
00:31:00,960 --> 00:31:04,080
Speaker 3: a national champion debater, and so it was comfortable being

534
00:31:04,120 --> 00:31:08,200
Speaker 3: on my feet, but I was really, you know, dominated

535
00:31:08,320 --> 00:31:10,880
Speaker 3: My dominant thinking was be a law professor, write these

536
00:31:10,920 --> 00:31:14,600
Speaker 3: theoretical articles that change the way people think about the law,

537
00:31:14,680 --> 00:31:16,480
Speaker 3: and teach students. So that's what I thought I was

538
00:31:16,520 --> 00:31:21,320
Speaker 3: going to do. And then something happened, which was we

539
00:31:21,360 --> 00:31:24,960
Speaker 3: had the horrific attacks on September eleventh, and I was

540
00:31:25,040 --> 00:31:26,920
Speaker 3: bumbling around trying to figure out what to do. I

541
00:31:26,920 --> 00:31:30,880
Speaker 3: was teaching at Yale Law School that year, and and

542
00:31:31,000 --> 00:31:33,040
Speaker 3: you know, my students and I we decided to try

543
00:31:33,080 --> 00:31:36,240
Speaker 3: and help first responders get benefits and stuff, and you know,

544
00:31:36,280 --> 00:31:38,440
Speaker 3: we weren't particularly good at it, but it was something.

545
00:31:38,960 --> 00:31:42,360
Speaker 3: And then President Bush announced that he was going to

546
00:31:42,360 --> 00:31:47,560
Speaker 3: have these military trials at Guantanamo Bay for suspected terrorists.

547
00:31:48,200 --> 00:31:50,240
Speaker 3: And I looked at that. I had served in the

548
00:31:50,280 --> 00:31:53,480
Speaker 3: Justice Department briefly, and we had the embassy bombings of

549
00:31:53,520 --> 00:31:55,760
Speaker 3: al Qaeda at the time, and so I looked into

550
00:31:55,800 --> 00:31:58,800
Speaker 3: could we have military trials? And we concluded they were

551
00:31:58,840 --> 00:32:02,520
Speaker 3: obviously unconstitutioned. So I went and looked up what's President

552
00:32:02,560 --> 00:32:05,040
Speaker 3: Bush doing here? What's the source of authority for this?

553
00:32:05,720 --> 00:32:09,360
Speaker 3: And you know, it wasn't particularly compelling. In fact, it

554
00:32:09,480 --> 00:32:12,600
Speaker 3: was really weak because the President was saying he was

555
00:32:12,640 --> 00:32:15,000
Speaker 3: going to set up these trials from scratch. He's going

556
00:32:15,080 --> 00:32:18,280
Speaker 3: to pick the prosecutors, pick the defense attorneys. Right. All

557
00:32:18,320 --> 00:32:22,240
Speaker 3: the rules for the criminal trials defined the punishments and offenses,

558
00:32:22,280 --> 00:32:23,520
Speaker 3: including the death pennel.

559
00:32:23,320 --> 00:32:25,480
Speaker 2: Even handed and fair. What's your objection? Yeah?

560
00:32:25,600 --> 00:32:27,840
Speaker 3: And you know, even the last lines of the executive

561
00:32:27,960 --> 00:32:30,880
Speaker 3: orders said the courts have no business reviewing what I'm doing.

562
00:32:31,240 --> 00:32:34,120
Speaker 3: No rid of habeas corpus. So I went into my

563
00:32:34,320 --> 00:32:37,040
Speaker 3: constitutional law class and said, you guys always tease me

564
00:32:37,120 --> 00:32:39,600
Speaker 3: because I think the President should have such strong powers,

565
00:32:39,880 --> 00:32:42,720
Speaker 3: and nothing the president does is unconstitutional. Well, here's something

566
00:32:42,720 --> 00:32:46,800
Speaker 3: that's obviously unconstitutional. And in the class was a senator.

567
00:32:46,840 --> 00:32:49,160
Speaker 3: It was a staffer for Senator Lahy, who was then

568
00:32:49,200 --> 00:32:53,480
Speaker 3: the chair of the Senate Judiciary Committee. And so she

569
00:32:53,640 --> 00:32:56,000
Speaker 3: told him about me, and he had a hearing, and

570
00:32:56,080 --> 00:32:58,280
Speaker 3: I testified and said, look, I don't know if you

571
00:32:58,280 --> 00:33:00,240
Speaker 3: want to have these military trials or not, but the

572
00:33:00,280 --> 00:33:02,240
Speaker 3: one thing I'm sure of is that it can't be

573
00:33:02,400 --> 00:33:05,080
Speaker 3: done with the president's stroke of his pen. You need

574
00:33:05,120 --> 00:33:07,600
Speaker 3: Congress to approve it. And this is of course going

575
00:33:07,640 --> 00:33:10,479
Speaker 3: to be relevant as we talk about tariffs later. It's

576
00:33:10,520 --> 00:33:13,560
Speaker 3: the exact same architecture over the argument. And so that's

577
00:33:13,600 --> 00:33:17,320
Speaker 3: how I testified. Nobody listened. So then I go and

578
00:33:17,400 --> 00:33:19,640
Speaker 3: I write a lare of your article with Lawrence Tribe,

579
00:33:19,640 --> 00:33:22,560
Speaker 3: the nation's most most pre eminent constitutional.

580
00:33:22,080 --> 00:33:24,440
Speaker 2: Law Lawrence Private Harvard.

581
00:33:24,480 --> 00:33:26,360
Speaker 3: Yeah, exactly. And so we write this article in the

582
00:33:26,440 --> 00:33:29,160
Speaker 3: Yale Law Journal. We race it to print, saying what's

583
00:33:29,200 --> 00:33:32,320
Speaker 3: going on is unconstitutional. Nobody reads the article.

584
00:33:32,360 --> 00:33:32,760
Speaker 2: My mom.

585
00:33:32,840 --> 00:33:34,840
Speaker 3: Maybe my mom read it, but you know, I don't know.

586
00:33:35,920 --> 00:33:39,600
Speaker 3: So then I said to myself, you know, you got

587
00:33:39,600 --> 00:33:42,160
Speaker 3: this piece of paper, neil a law degree, you could

588
00:33:42,240 --> 00:33:47,360
Speaker 3: actually sue the president, and that's what it is exactly.

589
00:33:47,600 --> 00:33:49,920
Speaker 3: So that was the hard question because a bunch of

590
00:33:50,000 --> 00:33:53,160
Speaker 3: different interest groups had sued on Guantanamo, but they didn't

591
00:33:53,200 --> 00:33:56,280
Speaker 3: have standing, they had no reason. And so I had

592
00:33:56,280 --> 00:33:58,920
Speaker 3: a friend very high up at the Pentagon who got

593
00:33:58,960 --> 00:34:02,120
Speaker 3: me the email address of a Pentagon lawyer who was

594
00:34:02,160 --> 00:34:05,720
Speaker 3: representing the detainees, and I basically got a letter snuck

595
00:34:05,760 --> 00:34:09,040
Speaker 3: to Guantanamo and it wound up in the hands of

596
00:34:09,920 --> 00:34:15,160
Speaker 3: Asama bin Laden's driver, and that became my client. And

597
00:34:15,239 --> 00:34:18,600
Speaker 3: so I go from being a theoretical law professor to

598
00:34:18,920 --> 00:34:22,520
Speaker 3: like a real, like hard nosed litigator, all in the

599
00:34:22,560 --> 00:34:26,040
Speaker 3: span of a few months. I filed the case. Nobody

600
00:34:26,040 --> 00:34:26,799
Speaker 3: thinks we're going to win.

601
00:34:26,960 --> 00:34:28,680
Speaker 2: How far are you from law school now?

602
00:34:28,800 --> 00:34:30,440
Speaker 3: Yeah, I'm like six years out.

603
00:34:30,320 --> 00:34:31,920
Speaker 2: So still relatively green.

604
00:34:32,120 --> 00:34:34,839
Speaker 3: Yeah, very green, and never filed a lawsuit, you know.

605
00:34:34,960 --> 00:34:36,680
Speaker 3: And so and by the way, I don't have any

606
00:34:36,760 --> 00:34:40,239
Speaker 3: help except four law students who are helping me. I

607
00:34:40,320 --> 00:34:42,680
Speaker 3: tried with law firms and initially I couldn't get them,

608
00:34:42,719 --> 00:34:46,239
Speaker 3: but then ultimately Perkins Cooy, a Seattle firm, decided to

609
00:34:46,280 --> 00:34:49,160
Speaker 3: help me, and that was phenomenal. So we filed this thing.

610
00:34:49,239 --> 00:34:52,120
Speaker 3: Nobody thinks we're going to win, and we win it

611
00:34:52,120 --> 00:34:54,480
Speaker 3: in the trial court. We lose it in the Court

612
00:34:54,560 --> 00:34:57,000
Speaker 3: of Appeals with a guy named John Roberts on the

613
00:34:57,040 --> 00:35:00,920
Speaker 3: descit panel. Three days later, he's nominated the Supreme Court

614
00:35:01,040 --> 00:35:03,400
Speaker 3: and then to the Chief Justiceship. So I have to

615
00:35:03,440 --> 00:35:07,040
Speaker 3: ask the Supreme Court to hear this Guantanamo case. It's

616
00:35:07,080 --> 00:35:10,040
Speaker 3: the most important case their new Chief Justice has ever decided.

617
00:35:11,120 --> 00:35:13,000
Speaker 3: And I'm going to say, I'm trying to tell the

618
00:35:13,040 --> 00:35:16,760
Speaker 3: Supreme Court the Chief Justice is wrong about this. Nobody

619
00:35:16,760 --> 00:35:19,160
Speaker 3: thinks we're going to win. It's my first Supreme Court argument.

620
00:35:19,480 --> 00:35:22,960
Speaker 3: I'm arguing against President Bush's legendary solicitor general. It's his

621
00:35:23,040 --> 00:35:26,879
Speaker 3: thirty fifth argument. I work my tail off and we win,

622
00:35:27,200 --> 00:35:30,480
Speaker 3: and then my life changes, and then companies want to

623
00:35:30,560 --> 00:35:33,080
Speaker 3: hire me, and I meet a young senator named Barack

624
00:35:33,120 --> 00:35:35,840
Speaker 3: Obama who heard me interviewed on an interview just like

625
00:35:35,880 --> 00:35:39,560
Speaker 3: this one, and he calls me into the Senate and says,

626
00:35:39,719 --> 00:35:41,839
Speaker 3: you know, ask me to advise him on some things

627
00:35:41,880 --> 00:35:45,200
Speaker 3: on Guantanamo, and tells me he's thinking of running for president,

628
00:35:45,360 --> 00:35:49,440
Speaker 3: And then started working with him and then my life changes.

629
00:35:49,520 --> 00:35:52,520
Speaker 2: Mass. Wow, that's amazing. You know. I want to talk

630
00:35:52,560 --> 00:35:55,480
Speaker 2: about a couple of the other cases that you argued.

631
00:35:56,920 --> 00:36:01,800
Speaker 2: One was More versus Harper, which former judge Michael Luddick

632
00:36:01,960 --> 00:36:07,359
Speaker 2: called the most important case for American democracy ever. Tell

633
00:36:07,440 --> 00:36:08,280
Speaker 2: us about that, kiss.

634
00:36:08,360 --> 00:36:10,160
Speaker 3: Yeah, so that's a pretty recent one. I already it,

635
00:36:10,200 --> 00:36:13,160
Speaker 3: I think about three years ago, and it involved something

636
00:36:13,200 --> 00:36:16,400
Speaker 3: called the independent state legislature theory, which at that point

637
00:36:16,440 --> 00:36:20,000
Speaker 3: was the greatest threat to democracy. I think when when

638
00:36:20,080 --> 00:36:23,279
Speaker 3: Judge Ludig was writing those remarks, We've now had some

639
00:36:23,360 --> 00:36:26,560
Speaker 3: things which you know are arguably worse. But it was

640
00:36:26,600 --> 00:36:28,560
Speaker 3: a significant one because if you think back to the

641
00:36:28,600 --> 00:36:32,800
Speaker 3: twenty twenty election, one of the things that President Trump

642
00:36:32,880 --> 00:36:36,560
Speaker 3: tried to do then was to say that state legislatures

643
00:36:36,680 --> 00:36:39,799
Speaker 3: can control elections, and you can even throw out the

644
00:36:39,880 --> 00:36:44,880
Speaker 3: popular vote and just have state legislatures decide where the

645
00:36:44,920 --> 00:36:49,280
Speaker 3: electoral votes will go to which candidate. And this became

646
00:36:49,640 --> 00:36:52,319
Speaker 3: part of the rnc's playbook, and they invested heavily in

647
00:36:52,360 --> 00:36:56,920
Speaker 3: state legislatures to try and develop, excuse me, this theory.

648
00:36:57,600 --> 00:37:02,279
Speaker 3: So we challenge that again, this is one in which

649
00:37:02,360 --> 00:37:06,759
Speaker 3: nobody thought we could win because if the Republicans won,

650
00:37:06,960 --> 00:37:11,960
Speaker 3: they would entrench control over presidential elections for decades probably,

651
00:37:12,360 --> 00:37:14,680
Speaker 3: And a lot of people think, oh, this Supreme Court,

652
00:37:14,680 --> 00:37:18,680
Speaker 3: they're appointed by Republicans, they're very conservative, they're just going

653
00:37:18,760 --> 00:37:22,080
Speaker 3: to do the Republican party's bidding. And I looked at

654
00:37:22,120 --> 00:37:23,879
Speaker 3: it and I said, I don't think that's right. I mean,

655
00:37:23,880 --> 00:37:26,520
Speaker 3: this is a court that does have fidelity to the

656
00:37:26,560 --> 00:37:30,520
Speaker 3: original understanding of the Constitution. And I thought, if we

657
00:37:30,560 --> 00:37:32,319
Speaker 3: could make the argument in that way, and this is

658
00:37:32,320 --> 00:37:34,680
Speaker 3: what my scholarship is all about, the original understanding of

659
00:37:34,680 --> 00:37:38,200
Speaker 3: the Constitution, I said, I thought we could win. And

660
00:37:38,880 --> 00:37:43,000
Speaker 3: so that's what I developed as the strategy. And indeed

661
00:37:43,200 --> 00:37:46,160
Speaker 3: I knew that Justice Thomas, Clarence Thomas would ask the

662
00:37:46,200 --> 00:37:49,160
Speaker 3: first question at oral argument that's been happening now for

663
00:37:49,200 --> 00:37:50,720
Speaker 3: the last few years.

664
00:37:50,760 --> 00:37:53,680
Speaker 2: Just out a habit or like, how does that well.

665
00:37:53,719 --> 00:37:57,760
Speaker 3: He's one of the more senior justices, and during COVID,

666
00:37:58,560 --> 00:38:01,640
Speaker 3: when we had to argue cases on speaker phones and

667
00:38:01,680 --> 00:38:04,239
Speaker 3: we couldn't see each other, it went in order of seniority,

668
00:38:04,239 --> 00:38:08,280
Speaker 3: and so Justice Thomas was right at the top. After COVID,

669
00:38:08,719 --> 00:38:12,000
Speaker 3: that's tradition continued in what Justice Thomas would ask the

670
00:38:12,040 --> 00:38:14,360
Speaker 3: first question. And so I've been thinking, how do I

671
00:38:14,560 --> 00:38:18,239
Speaker 3: use that knowledge to my advantage? Justice Thomas going to

672
00:38:18,239 --> 00:38:19,840
Speaker 3: ask the first question. And what I did was, I

673
00:38:19,920 --> 00:38:22,760
Speaker 3: said to myself, Okay, I can develop a set play.

674
00:38:23,320 --> 00:38:25,240
Speaker 3: Justice Thomas is going to ask me a question. Doesn't

675
00:38:25,280 --> 00:38:27,560
Speaker 3: matter what the question is. I'm then going to say,

676
00:38:27,560 --> 00:38:29,279
Speaker 3: and this is what I do. Just Thomas asked me

677
00:38:29,320 --> 00:38:31,239
Speaker 3: a question at the argument. I don't remember what the

678
00:38:31,320 --> 00:38:34,440
Speaker 3: question was. I answer it, and then I say, Justice Thomas,

679
00:38:34,480 --> 00:38:37,640
Speaker 3: may I say, in nearly three decades of arguing before you,

680
00:38:38,000 --> 00:38:40,080
Speaker 3: I've been waiting for this case because it speaks to

681
00:38:40,160 --> 00:38:44,600
Speaker 3: your method of constitutional interpretation, the original understanding, And here

682
00:38:44,600 --> 00:38:46,640
Speaker 3: are the four things you need to know about more

683
00:38:46,719 --> 00:38:50,200
Speaker 3: versus Harper in the original understanding of the Constitution. And

684
00:38:50,239 --> 00:38:52,880
Speaker 3: I get to talk about Madison and Hamilton and Jefferson

685
00:38:52,920 --> 00:38:56,239
Speaker 3: and so on, and it totally changes the dynamic in

686
00:38:56,280 --> 00:38:59,919
Speaker 3: the courtroom, and sure enough, we win six to three.

687
00:39:00,880 --> 00:39:04,520
Speaker 3: This case in the Republican theory is thrown out. I

688
00:39:04,520 --> 00:39:07,000
Speaker 3: didn't win Justice Thomas's vote, but I won a bunch

689
00:39:07,040 --> 00:39:07,680
Speaker 3: of others.

690
00:39:07,920 --> 00:39:12,520
Speaker 2: Huh, that's amazing. Let's quickly talk about the Voting Rights

691
00:39:12,560 --> 00:39:16,040
Speaker 2: Act that you successfully defend it instead of trying to

692
00:39:16,040 --> 00:39:20,080
Speaker 2: overturn it. Tell us how different is to be playing

693
00:39:20,200 --> 00:39:24,520
Speaker 2: defense or is it not? You're just arguing constitutional law

694
00:39:24,640 --> 00:39:27,480
Speaker 2: and this is the outcome that should come about.

695
00:39:28,080 --> 00:39:30,200
Speaker 3: It is different. But I would say even back then,

696
00:39:30,239 --> 00:39:32,719
Speaker 3: I felt like I was playing defense. So this is

697
00:39:32,719 --> 00:39:36,440
Speaker 3: a case I argued in maybe twenty ten. The Voting

698
00:39:36,480 --> 00:39:39,720
Speaker 3: Rights Active and passed in nineteen sixty five. It literally

699
00:39:39,760 --> 00:39:41,680
Speaker 3: has the blood of patriots on it. It is what

700
00:39:41,800 --> 00:39:45,399
Speaker 3: Selma and the Bridge Potatos Bridge is all about. And

701
00:39:46,360 --> 00:39:50,399
Speaker 3: so you know, in the case, basically it was right

702
00:39:50,480 --> 00:39:54,759
Speaker 3: after President Obama had been elected and Southern States said, look,

703
00:39:54,760 --> 00:39:56,920
Speaker 3: we don't need the Voting Rights Act anymore. Look you

704
00:39:56,920 --> 00:39:59,719
Speaker 3: have an African American president, Like that's proof that we

705
00:39:59,760 --> 00:40:04,839
Speaker 3: don't need it. And I stood up in court and said, no,

706
00:40:04,920 --> 00:40:07,000
Speaker 3: we do need it. And it's like, you know, the

707
00:40:07,120 --> 00:40:09,720
Speaker 3: very fact that we've been able to have an African

708
00:40:09,719 --> 00:40:12,839
Speaker 3: American president isn't alone enough to to say there isn't

709
00:40:12,840 --> 00:40:16,080
Speaker 3: discrimination in voting, particularly in particular areas, you know, even

710
00:40:16,120 --> 00:40:20,279
Speaker 3: if the overall national result is one thing. And the

711
00:40:20,320 --> 00:40:25,200
Speaker 3: Supreme Court at that point accepted that argument. And four

712
00:40:25,280 --> 00:40:27,960
Speaker 3: years later, however, in a case called Shelby County, they

713
00:40:28,040 --> 00:40:30,759
Speaker 3: reversed that position and struck down that part of the

714
00:40:30,840 --> 00:40:33,640
Speaker 3: Voting Rights Act. And now there's only one part of

715
00:40:33,640 --> 00:40:36,319
Speaker 3: the Voting Rights Act that remains, Section two, and the

716
00:40:36,320 --> 00:40:39,759
Speaker 3: Supreme Court's agreed to hear a case to challenge that

717
00:40:40,200 --> 00:40:43,000
Speaker 3: this fall. And so we very well may have a

718
00:40:43,040 --> 00:40:46,560
Speaker 3: world in which there is no Voting Rights Act left whatsoever,

719
00:40:46,640 --> 00:40:49,480
Speaker 3: which is a very dangerous thing. And yes, I do

720
00:40:49,520 --> 00:40:54,000
Speaker 3: think the Court has become more conservative over my lifetime.

721
00:40:54,360 --> 00:40:56,720
Speaker 3: I mean, the Court has always been a point majority

722
00:40:56,760 --> 00:40:58,680
Speaker 3: Republican appointees since things.

723
00:40:58,840 --> 00:41:01,600
Speaker 2: This isn't just too hard in ship. This is an

724
00:41:01,840 --> 00:41:05,440
Speaker 2: ideological tilt, not necessarily party tilts.

725
00:41:05,680 --> 00:41:08,640
Speaker 3: Yeah, so I would say, you know that the presidents

726
00:41:08,760 --> 00:41:11,640
Speaker 3: now of both parties are sending to the Supreme Court

727
00:41:11,760 --> 00:41:16,160
Speaker 3: more sure things that you know than which the track

728
00:41:16,239 --> 00:41:18,719
Speaker 3: record is really known. You know, the Republicans had this

729
00:41:18,840 --> 00:41:22,960
Speaker 3: mantra no more suitors because David Sudor, nominated by Republican

730
00:41:23,000 --> 00:41:26,600
Speaker 3: President Bush upheld things like abortion rights and so on.

731
00:41:26,920 --> 00:41:29,040
Speaker 3: And the Democrats, I think, have had their own version

732
00:41:29,120 --> 00:41:32,840
Speaker 3: of this for some time as well. And so we

733
00:41:32,960 --> 00:41:37,480
Speaker 3: get we don't tend to get justices without very defined

734
00:41:37,520 --> 00:41:41,040
Speaker 3: positions anymore. Like when I started arguing, Justice Kennedy was

735
00:41:41,080 --> 00:41:44,239
Speaker 3: on the court and you could see Barry every time

736
00:41:44,320 --> 00:41:48,640
Speaker 3: you argued. He was struggling with which is the right view?

737
00:41:48,719 --> 00:41:50,879
Speaker 3: Which is the right view of the law. And he's

738
00:41:50,920 --> 00:41:53,359
Speaker 3: a very smart man. It wasn't that he wasn't smart.

739
00:41:53,400 --> 00:41:56,239
Speaker 3: When I say struggling, it's not that he was struggling intellectually.

740
00:41:56,360 --> 00:41:59,160
Speaker 2: They were pretty even handed argument yeah, and he really.

741
00:41:59,000 --> 00:42:02,960
Speaker 3: Took the arguments so seriously without caricaturing him and just

742
00:42:03,040 --> 00:42:05,760
Speaker 3: tried to make the right decision. And certainly that still

743
00:42:05,760 --> 00:42:08,120
Speaker 3: happens today. I don't mean to overclaim it, but I

744
00:42:08,160 --> 00:42:10,879
Speaker 3: would say in particularly some of the big cases, they're

745
00:42:10,880 --> 00:42:13,279
Speaker 3: coming in a bit more with their minds made up

746
00:42:14,280 --> 00:42:15,360
Speaker 3: than when I first started.

747
00:42:15,840 --> 00:42:19,480
Speaker 2: Really interesting. Coming up, we continue our conversation with a

748
00:42:19,560 --> 00:42:25,440
Speaker 2: Pellet litigator, Neil Kadil, talking about the tariff litigation winding

749
00:42:25,480 --> 00:42:29,040
Speaker 2: its way through the courts. Today. I'm Barry Ridults. You're

750
00:42:29,080 --> 00:42:33,719
Speaker 2: listening to Masters in Business on Bloomberg Radio. I'm Barry Ridults.

751
00:42:33,880 --> 00:42:37,239
Speaker 2: You're listening to Masters in Business on Bloomberg Radio. My

752
00:42:37,680 --> 00:42:41,480
Speaker 2: extra special guest this week is Neil Kadial. He is

753
00:42:41,800 --> 00:42:45,400
Speaker 2: the former Solicitor General under President Obama. He is an

754
00:42:45,480 --> 00:42:49,880
Speaker 2: appellet attorney who's argued in front of the Supreme Court

755
00:42:50,280 --> 00:42:53,799
Speaker 2: pretty much more than any living or at least any

756
00:42:53,880 --> 00:42:57,000
Speaker 2: active attorney fifty two times something more.

757
00:42:57,080 --> 00:43:00,640
Speaker 3: There are people who have more. But I'm doing okay.

758
00:43:01,280 --> 00:43:04,640
Speaker 2: You're doing okay. I want to talk about the Vos

759
00:43:04,680 --> 00:43:10,480
Speaker 2: Selections Trump tariff litigation that, as we're recording this right

760
00:43:10,520 --> 00:43:16,000
Speaker 2: before Labor Day, continues to perplex me how little coverage

761
00:43:16,360 --> 00:43:22,160
Speaker 2: this has gotten from media, and not just political media,

762
00:43:22,280 --> 00:43:27,600
Speaker 2: but financial and markets and economics media, because this case

763
00:43:27,960 --> 00:43:33,720
Speaker 2: has enormous potential to impact the broader economy. So first,

764
00:43:33,840 --> 00:43:39,719
Speaker 2: let's start with Vos Selections and other planiffs. April fourteenth,

765
00:43:39,800 --> 00:43:45,080
Speaker 2: after Liberation Day sued the President, saying you don't have

766
00:43:45,120 --> 00:43:49,399
Speaker 2: the authority to issue tariffs on your own without meaning Well,

767
00:43:49,440 --> 00:43:52,400
Speaker 2: these checklists which you fail to do. How did you

768
00:43:52,440 --> 00:43:54,600
Speaker 2: get involved in this case? Tell us a little bit

769
00:43:54,640 --> 00:43:58,360
Speaker 2: about what makes this case different than other challenges to

770
00:43:58,680 --> 00:43:59,840
Speaker 2: presidential authority.

771
00:44:00,440 --> 00:44:04,560
Speaker 3: So right after President Trump took office and started talking

772
00:44:04,600 --> 00:44:09,160
Speaker 3: about this tariff position, I was reminded of the Guantanamo case.

773
00:44:09,200 --> 00:44:11,720
Speaker 3: I just described to you earlier, because it's the exact

774
00:44:11,840 --> 00:44:16,840
Speaker 3: same problem, which is, look, a president had may, motivated

775
00:44:16,840 --> 00:44:19,799
Speaker 3: by any number of good reasons, has a policy that

776
00:44:19,840 --> 00:44:23,400
Speaker 3: he wants to implement, and instead of going to Congress,

777
00:44:23,440 --> 00:44:25,280
Speaker 3: he just does it on his own with the stroke

778
00:44:25,320 --> 00:44:30,200
Speaker 3: of his pen. And our founders thought that a very

779
00:44:30,360 --> 00:44:35,560
Speaker 3: dangerous proposition, particularly in core areas like tariffs, because you

780
00:44:35,600 --> 00:44:40,040
Speaker 3: know every King George, of course, you know every dictator,

781
00:44:40,120 --> 00:44:44,200
Speaker 3: every leader would like the power to tariff, to tax

782
00:44:44,360 --> 00:44:47,480
Speaker 3: the people in any way they see fit, without limitation.

783
00:44:47,600 --> 00:44:50,719
Speaker 3: And what our founder said is no Article one, section eight.

784
00:44:51,000 --> 00:44:54,320
Speaker 3: They gave the power to tariff expressly to the president

785
00:44:54,400 --> 00:44:56,600
Speaker 3: in a similar way to they gave the gave the

786
00:44:56,600 --> 00:44:59,279
Speaker 3: power to Congress, and in the same way as they

787
00:44:59,280 --> 00:45:01,280
Speaker 3: did over matter of military justice.

788
00:45:01,360 --> 00:45:03,719
Speaker 2: Let me ask you a question about Article one, section eight,

789
00:45:03,800 --> 00:45:07,319
Speaker 2: because it talks about Levy's duties and taxes, but it

790
00:45:07,440 --> 00:45:12,040
Speaker 2: doesn't specifically say tariffs. Does the nomenclature matter or are

791
00:45:12,080 --> 00:45:13,359
Speaker 2: they all the same things? Now?

792
00:45:13,400 --> 00:45:17,160
Speaker 3: I mean, even the Trump administration, which just made some

793
00:45:17,200 --> 00:45:19,720
Speaker 3: bizarre legal arguments in this case, even they're not making

794
00:45:19,719 --> 00:45:22,880
Speaker 3: that argument. A duty is definitely understood as a tariff,

795
00:45:23,239 --> 00:45:26,280
Speaker 3: and the original understanding very clear on that point.

796
00:45:26,320 --> 00:45:31,040
Speaker 2: And Article one, section eight says that authority lies exclusively

797
00:45:31,400 --> 00:45:37,840
Speaker 2: with Congress exactly. So that's the initial claim. I'm assuming

798
00:45:37,960 --> 00:45:41,600
Speaker 2: the president is saying, well, I was given authority by

799
00:45:41,640 --> 00:45:47,359
Speaker 2: Congress either through the IEPA Act, which was nineteen seventy seven,

800
00:45:47,440 --> 00:45:50,160
Speaker 2: or the Trade Act of nineteen seventy four. How do

801
00:45:50,239 --> 00:45:54,719
Speaker 2: you see these other legislations modifying the Constitution?

802
00:45:54,960 --> 00:45:57,759
Speaker 3: So the government is certainly so the Trump administration is

803
00:45:57,800 --> 00:46:00,640
Speaker 3: trying to say that in nineteen seventy seven and Congress

804
00:46:00,680 --> 00:46:04,920
Speaker 3: passed this International Economic Emergency Act which gave the power

805
00:46:05,040 --> 00:46:07,719
Speaker 3: to tariff. There's only one problem with that. The law

806
00:46:07,760 --> 00:46:10,640
Speaker 3: doesn't say anything about tariffs in it in nineteen seventy seven,

807
00:46:10,920 --> 00:46:13,880
Speaker 3: and there's nothing in the you know, history of the

808
00:46:13,960 --> 00:46:17,239
Speaker 3: law to say so. No president for fifty years has

809
00:46:17,280 --> 00:46:20,360
Speaker 3: ever thought that it includes the power to tariff. And

810
00:46:20,400 --> 00:46:23,040
Speaker 3: then President Trump's lawyers come along and say, ah, here,

811
00:46:23,280 --> 00:46:28,120
Speaker 3: that's how we're going to announce these massive tariffs. And

812
00:46:28,160 --> 00:46:31,800
Speaker 3: I just think our Constitution demands more from the Congress

813
00:46:31,840 --> 00:46:35,239
Speaker 3: than that simple thing. I mean, Congress can certainly tomorrow

814
00:46:35,920 --> 00:46:39,880
Speaker 3: easily authorize all of President Trump's tariffs. It would you

815
00:46:39,880 --> 00:46:41,160
Speaker 3: know they could just do it with an up or

816
00:46:41,160 --> 00:46:44,040
Speaker 3: down vote. The fact that they haven't, the fact that

817
00:46:44,080 --> 00:46:46,959
Speaker 3: the president is scared to even ask, I think, tells

818
00:46:47,000 --> 00:46:48,040
Speaker 3: you all you need to know.

819
00:46:48,320 --> 00:46:50,439
Speaker 2: Didn't he ask in his first term?

820
00:46:50,480 --> 00:46:52,440
Speaker 3: In his first term, he asked and it was rejected

821
00:46:52,480 --> 00:46:53,320
Speaker 3: by the Congress.

822
00:46:53,400 --> 00:46:56,239
Speaker 2: So it seems kind of odd to say, please give

823
00:46:56,280 --> 00:46:59,520
Speaker 2: me the authority to tariff. No, I can't. Okay, now

824
00:46:59,560 --> 00:47:01,680
Speaker 2: I'm not even going to ask. This is like a

825
00:47:01,800 --> 00:47:04,760
Speaker 2: teenage kid who sneaks out after curfew.

826
00:47:04,640 --> 00:47:07,120
Speaker 3: Right, it's it's I mean, a different way of putting

827
00:47:07,160 --> 00:47:09,759
Speaker 3: The point is. Look, even Donald Trump didn't believe his

828
00:47:09,840 --> 00:47:13,200
Speaker 3: own AEPA argument because he went to Congress back the

829
00:47:13,239 --> 00:47:15,919
Speaker 3: first time around and lost, And so then he comes

830
00:47:16,000 --> 00:47:18,560
Speaker 3: up with his backup plan, which is, oh, I have

831
00:47:18,680 --> 00:47:21,000
Speaker 3: the power anyway. Then I have no idea what he

832
00:47:21,040 --> 00:47:22,960
Speaker 3: was doing in the first term by going and asking

833
00:47:23,000 --> 00:47:24,520
Speaker 3: Congress for this power if he had it in the

834
00:47:24,520 --> 00:47:28,120
Speaker 3: first place. And it's such a dangerous thing because you know,

835
00:47:28,200 --> 00:47:32,040
Speaker 3: if this president does it for tariffs because he sees

836
00:47:32,080 --> 00:47:34,720
Speaker 3: trade imbalances, another president, and this is how I started

837
00:47:34,719 --> 00:47:37,960
Speaker 3: my oral argument to the Federal Circuit. Another president to

838
00:47:38,000 --> 00:47:40,920
Speaker 3: the Court of appeals. Another president could say, you know,

839
00:47:41,040 --> 00:47:45,960
Speaker 3: climate's a real emergency, and I am going to impose

840
00:47:45,960 --> 00:47:49,440
Speaker 3: one hundred percent tariffs or one thousand percent tariffs on

841
00:47:49,600 --> 00:47:53,560
Speaker 3: any goods from an oil producing country. You know, that

842
00:47:53,840 --> 00:47:57,280
Speaker 3: whole thing is something that Congress really needs to be deciding,

843
00:47:57,520 --> 00:47:58,879
Speaker 3: not the president on his own.

844
00:47:59,120 --> 00:48:02,400
Speaker 2: So before we get the appellate litigation, let's start with

845
00:48:02,520 --> 00:48:06,400
Speaker 2: the trial litigation. You're representing a group of small businesses

846
00:48:06,400 --> 00:48:09,440
Speaker 2: that are all saying tariffs are going to hurt their business.

847
00:48:09,960 --> 00:48:14,760
Speaker 2: Tell us what the this was the Court of Trade,

848
00:48:14,760 --> 00:48:17,360
Speaker 2: the International Court of Trade in DC. Tell us a

849
00:48:17,400 --> 00:48:19,480
Speaker 2: little bit about that litigation. How did that proceed?

850
00:48:19,600 --> 00:48:21,480
Speaker 3: Yeah, and just to be clear, I wasn't involved at

851
00:48:21,520 --> 00:48:23,600
Speaker 3: that stage. I mean, this happens a lot with me.

852
00:48:23,760 --> 00:48:26,839
Speaker 3: Is someone brings the case in the trial court, they

853
00:48:26,920 --> 00:48:30,279
Speaker 3: win or lose, and then they want a firepower for

854
00:48:30,360 --> 00:48:32,480
Speaker 3: the appeal stage and the Supreme Court. So that's what

855
00:48:32,520 --> 00:48:33,000
Speaker 3: happened to you.

856
00:48:33,000 --> 00:48:35,799
Speaker 2: Sure, So they won at the trial level, and then

857
00:48:35,840 --> 00:48:39,240
Speaker 2: there was a stay on the enforcement at the trial

858
00:48:39,320 --> 00:48:43,320
Speaker 2: level pending appeal. Right, So that's where you get involved

859
00:48:43,360 --> 00:48:45,600
Speaker 2: in the case. How did this go up to the

860
00:48:45,719 --> 00:48:49,480
Speaker 2: DC Court of Appeal? So rapidly, and why was it

861
00:48:49,520 --> 00:48:53,759
Speaker 2: a full on bank all eleven justices hearing the case

862
00:48:53,800 --> 00:48:54,160
Speaker 2: at once.

863
00:48:54,320 --> 00:48:56,800
Speaker 3: Yeah, So what you have is you have a trial

864
00:48:56,840 --> 00:48:59,359
Speaker 3: court decision from the Court of International Trade that says

865
00:48:59,360 --> 00:49:04,160
Speaker 3: President tree Trump's tariffs are illegal. The court then pauses

866
00:49:04,280 --> 00:49:07,440
Speaker 3: that ruling so that it could be decided by the

867
00:49:07,480 --> 00:49:10,040
Speaker 3: appeals Court and perhaps the US Supreme Court. And at

868
00:49:10,040 --> 00:49:14,840
Speaker 3: that point I get involved. The Federal Court of Appeals says,

869
00:49:14,920 --> 00:49:17,600
Speaker 3: on their own, this case is so important that we're

870
00:49:17,600 --> 00:49:20,120
Speaker 3: going to have all eleven of our judges here the case,

871
00:49:20,239 --> 00:49:22,640
Speaker 3: not just three judges, which is normally the rule.

872
00:49:22,840 --> 00:49:24,960
Speaker 2: How often do you get a full on bank hearing

873
00:49:25,000 --> 00:49:25,200
Speaker 2: like that?

874
00:49:25,680 --> 00:49:27,960
Speaker 3: Very rarely, I mean the Federal Circuit, which is this

875
00:49:28,000 --> 00:49:30,759
Speaker 3: Court of Appeals, maybe once a year, maybe once every

876
00:49:30,760 --> 00:49:32,840
Speaker 3: couple of years. So it's a very rare thing, and

877
00:49:32,880 --> 00:49:35,319
Speaker 3: I think it does demonstrate the gravity of this. And

878
00:49:35,360 --> 00:49:37,759
Speaker 3: to circle back to something at the start that you

879
00:49:37,840 --> 00:49:40,800
Speaker 3: talked about about the kind of degree of attention around

880
00:49:40,800 --> 00:49:42,759
Speaker 3: this case, I guess I want to push back a

881
00:49:42,760 --> 00:49:44,680
Speaker 3: little because I do think there's been a lot of

882
00:49:44,840 --> 00:49:48,360
Speaker 3: media attention around the case, a lot of jurisprudential attention

883
00:49:48,440 --> 00:49:50,560
Speaker 3: around the case, but perhaps the most important a lot

884
00:49:50,600 --> 00:49:53,840
Speaker 3: of business community interest. I mean, I think every major

885
00:49:53,880 --> 00:49:57,440
Speaker 3: hedge fund called me while this case was pending in

886
00:49:57,560 --> 00:50:00,279
Speaker 3: the trial court to ask for my views, and they

887
00:50:00,280 --> 00:50:03,279
Speaker 3: wanted to make financial decisions on the basis of it.

888
00:50:03,520 --> 00:50:05,919
Speaker 3: I obviously can't answer those questions in quite the same

889
00:50:05,920 --> 00:50:08,799
Speaker 3: way now that I'm involved in the case. But I

890
00:50:08,840 --> 00:50:12,400
Speaker 3: do think that for the markets, this is a case

891
00:50:12,600 --> 00:50:17,279
Speaker 3: of enormous, enormous significance, and what happens at the Court

892
00:50:17,320 --> 00:50:19,799
Speaker 3: of Appeals and what perhaps happens should the case go

893
00:50:19,880 --> 00:50:22,200
Speaker 3: to the Supreme Court is something that a lot of

894
00:50:22,200 --> 00:50:23,200
Speaker 3: people are thinking about.

895
00:50:23,520 --> 00:50:27,080
Speaker 2: So let's walk before we run. So you argue the

896
00:50:27,120 --> 00:50:32,080
Speaker 2: case on bank in front of the entire all lemonjustices

897
00:50:32,160 --> 00:50:35,160
Speaker 2: of the DC Court of Appeals. Tell us what that

898
00:50:35,400 --> 00:50:37,239
Speaker 2: hearing was, like, how did it go?

899
00:50:37,680 --> 00:50:40,800
Speaker 3: Yeah, So, I mean, I'm obviously constrained. It's a pending case,

900
00:50:40,880 --> 00:50:43,680
Speaker 3: so I want to just stick to the public record.

901
00:50:43,880 --> 00:50:46,080
Speaker 3: I'm not going to try and litigate the case on

902
00:50:46,120 --> 00:50:49,400
Speaker 3: your podcast or anything. I love your podcast, but I

903
00:50:49,480 --> 00:50:52,040
Speaker 3: have to be very mindful of those kinds of things.

904
00:50:52,800 --> 00:50:55,759
Speaker 3: But you know, in a big case like this, I

905
00:50:55,800 --> 00:50:59,600
Speaker 3: think you're always looking I'm always looking to try and

906
00:50:59,680 --> 00:51:04,560
Speaker 3: make sure the judges understand the implications of the government's argument,

907
00:51:04,680 --> 00:51:08,719
Speaker 3: because anything can look reasonable when a president does it

908
00:51:08,800 --> 00:51:11,960
Speaker 3: in the you know, for the immediate situation. But the

909
00:51:12,040 --> 00:51:15,400
Speaker 3: question and constitutional law is, if the president has this

910
00:51:15,520 --> 00:51:18,280
Speaker 3: power here, what's to stop him from doing the next.

911
00:51:18,160 --> 00:51:20,759
Speaker 2: Thing and the next thing in the next slope.

912
00:51:20,840 --> 00:51:24,360
Speaker 3: Yeah, exactly, And that's something our founders the whole architecture

913
00:51:24,360 --> 00:51:27,319
Speaker 3: of our government, and Madison really talks about this in

914
00:51:27,360 --> 00:51:30,600
Speaker 3: Federalists ten fifty one. The whole architecture of our government

915
00:51:30,640 --> 00:51:33,480
Speaker 3: is to try and prevent that slippery slope through all

916
00:51:33,480 --> 00:51:36,920
Speaker 3: sorts of different breaks. And the obviously the most important

917
00:51:36,920 --> 00:51:39,480
Speaker 3: break to our founders was the role of the Congress.

918
00:51:39,800 --> 00:51:43,319
Speaker 3: That the Congress has to affirmatively authorize things before a

919
00:51:43,360 --> 00:51:44,439
Speaker 3: president can do them.

920
00:51:44,600 --> 00:51:49,080
Speaker 2: So if the president can levy tariff's taxes duties on

921
00:51:49,440 --> 00:51:54,560
Speaker 2: his own without congress, what can he do exactly?

922
00:51:54,760 --> 00:51:57,000
Speaker 3: And so, you know, you asked me, how did the

923
00:51:57,120 --> 00:52:00,759
Speaker 3: argument go? I felt like the judges were circling in

924
00:52:00,800 --> 00:52:03,480
Speaker 3: on that precise question, the one you just asked me.

925
00:52:04,520 --> 00:52:09,760
Speaker 3: And you know it's available for anyone to listen to exactly,

926
00:52:09,840 --> 00:52:13,200
Speaker 3: So you know, listeners can decide for themselves. But I

927
00:52:13,239 --> 00:52:16,840
Speaker 3: do think the government, you know, was was on the

928
00:52:16,920 --> 00:52:20,880
Speaker 3: defense in response to those questions. And you know, I,

929
00:52:21,080 --> 00:52:22,840
Speaker 3: you know, I have some sympathy for that. I was

930
00:52:22,920 --> 00:52:25,560
Speaker 3: the top lawyer for the federal government for a while,

931
00:52:25,960 --> 00:52:29,440
Speaker 3: and you know, sometimes governments, you know, have positions that

932
00:52:29,480 --> 00:52:32,560
Speaker 3: are tough to defend. This one I felt was particularly

933
00:52:32,600 --> 00:52:33,320
Speaker 3: tough to defend.

934
00:52:33,400 --> 00:52:36,879
Speaker 2: So what given what we've talked about with Article one,

935
00:52:36,960 --> 00:52:41,000
Speaker 2: Section eight and NIPA, what on earth was the government's

936
00:52:41,440 --> 00:52:44,680
Speaker 2: case defending the Tara faction.

937
00:52:44,880 --> 00:52:47,239
Speaker 3: Most of the government's case was like a fate of

938
00:52:47,320 --> 00:52:50,800
Speaker 3: complete which was, Oh, it's already done, the President's done it,

939
00:52:50,800 --> 00:52:54,359
Speaker 3: it's had all these successes. If you undo it, it's

940
00:52:54,400 --> 00:52:57,280
Speaker 3: going in declared illegal. Then it's going to wreck the economy.

941
00:52:57,480 --> 00:53:00,959
Speaker 2: I am not aware of many having gone to law

942
00:53:01,000 --> 00:53:03,560
Speaker 2: school and passed the bar. I don't recall a lot

943
00:53:03,560 --> 00:53:08,239
Speaker 2: of constitutional cases where the judges shrugged and said, well,

944
00:53:08,280 --> 00:53:10,759
Speaker 2: if you did it already, who are we to undo that?

945
00:53:11,080 --> 00:53:11,600
Speaker 3: Exactly?

946
00:53:12,200 --> 00:53:15,200
Speaker 2: It seems like a kind of bizarre argument to make.

947
00:53:15,480 --> 00:53:17,960
Speaker 3: It is, but it is one that the governments have made.

948
00:53:18,080 --> 00:53:20,600
Speaker 3: Prior governments have made it. President Truman made it when

949
00:53:20,600 --> 00:53:23,879
Speaker 3: he sees the steel mills in nineteen fifty two, and

950
00:53:24,000 --> 00:53:26,480
Speaker 3: that went up to the Supreme Court. Solicitor General made

951
00:53:26,520 --> 00:53:29,200
Speaker 3: a version of this argument, and of course there we

952
00:53:29,200 --> 00:53:31,479
Speaker 3: were in a war and we needed the steal. And

953
00:53:31,840 --> 00:53:34,120
Speaker 3: so the Solicitor General said to the Supreme Court, look,

954
00:53:34,160 --> 00:53:37,400
Speaker 3: you will d it gravely undermine our war fighting powers

955
00:53:37,680 --> 00:53:40,400
Speaker 3: in the midst of a war if you reverse the

956
00:53:40,440 --> 00:53:43,879
Speaker 3: president's decision to seize the steel mills. Supreme Court said,

957
00:53:44,040 --> 00:53:47,200
Speaker 3: that's not a good enough reason. In our constitutional system,

958
00:53:47,280 --> 00:53:51,280
Speaker 3: they say, it's Congress that makes the laws. And again,

959
00:53:51,560 --> 00:53:55,239
Speaker 3: similar architecture to the guantanam argument. Similar architecture here in

960
00:53:55,239 --> 00:53:56,000
Speaker 3: the tariff's case.

961
00:53:56,200 --> 00:54:00,759
Speaker 2: Huh, that's really fascinating. So the government's substance equently did

962
00:54:00,800 --> 00:54:05,160
Speaker 2: a filing pretty quickly after the hearing, asking for a

963
00:54:05,320 --> 00:54:11,720
Speaker 2: stay if they lose, pending Supreme Court review. That seems

964
00:54:11,800 --> 00:54:14,279
Speaker 2: kind of unusual. It's almost as if, hey, we didn't

965
00:54:14,320 --> 00:54:16,759
Speaker 2: do a great job and we think we're going to lose,

966
00:54:16,800 --> 00:54:20,200
Speaker 2: but we don't want you to overturn this. How often

967
00:54:20,239 --> 00:54:25,320
Speaker 2: does that happen this quickly after an appeal is argued.

968
00:54:25,400 --> 00:54:28,000
Speaker 3: I mean, it was an extraordinary letter. I don't really

969
00:54:28,000 --> 00:54:30,080
Speaker 3: want to say more than that people can listen to

970
00:54:30,560 --> 00:54:32,880
Speaker 3: people can read the letter for themselves. It was filed

971
00:54:32,920 --> 00:54:34,839
Speaker 3: in the court. It's a two page letter, and then

972
00:54:34,880 --> 00:54:37,000
Speaker 3: we filed a quick response to it. But it is

973
00:54:38,160 --> 00:54:39,879
Speaker 3: it is an extraordinary.

974
00:54:39,360 --> 00:54:42,800
Speaker 2: Letter, so typically get a this was argued in July

975
00:54:42,920 --> 00:54:46,040
Speaker 2: twenty twenty five. It could take six months before we

976
00:54:46,080 --> 00:54:49,560
Speaker 2: get a decision. Typically, my assumption is a full on

977
00:54:49,760 --> 00:54:54,440
Speaker 2: bank hearing. Recognizing this is a really important case, you

978
00:54:54,719 --> 00:54:58,839
Speaker 2: tend to get a decision faster than you would otherwise.

979
00:54:59,320 --> 00:55:03,480
Speaker 2: I'm assuming that this can drop sometime in September October.

980
00:55:03,520 --> 00:55:05,839
Speaker 2: But this isn't a February twenty twenty six.

981
00:55:06,160 --> 00:55:08,520
Speaker 3: I think nobody wants it to be something that's going

982
00:55:08,560 --> 00:55:11,040
Speaker 3: to go long, and courts of appeals generally do take

983
00:55:11,080 --> 00:55:13,520
Speaker 3: a while for decisions. The average time is about six

984
00:55:13,560 --> 00:55:20,240
Speaker 3: months in the federal system. Here, I think the judges

985
00:55:20,320 --> 00:55:22,880
Speaker 3: do want to try and decide this quickly. That was

986
00:55:23,000 --> 00:55:25,080
Speaker 3: indicated to us by the fact that they gave us

987
00:55:25,160 --> 00:55:27,879
Speaker 3: very little time to write our briefs. You know, they

988
00:55:27,920 --> 00:55:30,040
Speaker 3: wanted us to go straight to argument.

989
00:55:29,760 --> 00:55:33,040
Speaker 2: And really, what's that timeline? Normally they like to prep.

990
00:55:32,920 --> 00:55:36,279
Speaker 3: It was truncated by about half the time, and then

991
00:55:36,400 --> 00:55:39,560
Speaker 3: oral arguments set for right away, right after the briefs

992
00:55:39,560 --> 00:55:40,040
Speaker 3: came in.

993
00:55:40,080 --> 00:55:43,239
Speaker 2: So no falling around. We're fast tracking this exactly. This

994
00:55:43,360 --> 00:55:46,640
Speaker 2: isn't a Christmas decision. We're gonna we're gonna get this

995
00:55:46,760 --> 00:55:48,160
Speaker 2: out exactly left Lay.

996
00:55:48,280 --> 00:55:50,839
Speaker 3: I think the court did exactly the right and responsible

997
00:55:50,880 --> 00:55:52,759
Speaker 3: thing there, which is us as lawyers. We can get

998
00:55:52,760 --> 00:55:55,440
Speaker 3: the briefs done, we can get prepared for argument, so

999
00:55:55,640 --> 00:55:58,480
Speaker 3: you know, so do it more quickly because there are

1000
00:55:58,600 --> 00:56:01,359
Speaker 3: eleven judges and they do have to reach some sort

1001
00:56:01,360 --> 00:56:04,239
Speaker 3: of majority view. It is going to take some time,

1002
00:56:04,280 --> 00:56:07,160
Speaker 3: in which you know, eleven people to decide. Anything takes time,

1003
00:56:07,400 --> 00:56:09,239
Speaker 3: particularly something with this gravity and.

1004
00:56:09,200 --> 00:56:13,120
Speaker 2: Wait, quite fascinating. Coming up, we continue our conversation with

1005
00:56:13,239 --> 00:56:17,040
Speaker 2: Neil Kadial, who is the planeff's attorney on the appeal

1006
00:56:17,320 --> 00:56:21,120
Speaker 2: for the Vos selections versus Trump, which is seeking to

1007
00:56:21,239 --> 00:56:25,719
Speaker 2: overturn all of the tariffs, discussing where the case can

1008
00:56:25,760 --> 00:56:29,240
Speaker 2: go from here. I'm Barry Ridolts. You're listening to Masters

1009
00:56:29,239 --> 00:56:33,000
Speaker 2: in Business on Bloomberg Radio. I'm Barry Redults. You're listening

1010
00:56:33,040 --> 00:56:37,240
Speaker 2: to Masters in Business on Bloomberg Radio. My Extra Special

1011
00:56:37,280 --> 00:56:42,239
Speaker 2: guest today is litigation Appellet attorney Neil Kadial. He has

1012
00:56:42,280 --> 00:56:47,840
Speaker 2: a tremendous CV former Solicitor General, dozens and dozens of

1013
00:56:47,880 --> 00:56:50,960
Speaker 2: cases argued in front of the Supreme Court, and the

1014
00:56:51,000 --> 00:56:55,760
Speaker 2: most recent argument he did was the Vos Selections versus Trump,

1015
00:56:56,320 --> 00:57:00,919
Speaker 2: arguing that all of these tariffs are illegal. So let's

1016
00:57:00,920 --> 00:57:04,279
Speaker 2: pick up where we left off. The DC Court of

1017
00:57:04,360 --> 00:57:08,160
Speaker 2: Appeals agrees to hear the case. They expedite this. You

1018
00:57:08,160 --> 00:57:10,480
Speaker 2: don't have a lot of time to prep for the

1019
00:57:10,600 --> 00:57:13,080
Speaker 2: moving papers, You don't have a lot of time to

1020
00:57:13,200 --> 00:57:17,000
Speaker 2: prep for the oral argument. What is that argument like

1021
00:57:17,320 --> 00:57:19,360
Speaker 2: when you're in front of the court. How long does

1022
00:57:19,400 --> 00:57:22,440
Speaker 2: it go for? I know you've done this a million times.

1023
00:57:22,440 --> 00:57:24,760
Speaker 2: You still get those butterflies in your stomach before you

1024
00:57:24,800 --> 00:57:25,280
Speaker 2: get up there.

1025
00:57:25,400 --> 00:57:27,960
Speaker 3: Always get the butterflies, And you know it helps me

1026
00:57:28,040 --> 00:57:30,240
Speaker 3: be a better lawyer. In the minute that I don't

1027
00:57:30,280 --> 00:57:32,360
Speaker 3: have those butterflies, I'm going to go do something else.

1028
00:57:33,120 --> 00:57:35,200
Speaker 3: John Roberts told me that I used to run his

1029
00:57:35,320 --> 00:57:39,560
Speaker 3: practice at his law firm practice, and he said, you know,

1030
00:57:39,680 --> 00:57:42,800
Speaker 3: every time I go up there, I got nervous. And

1031
00:57:43,560 --> 00:57:47,400
Speaker 3: he was an extraordinary advocate. And so I've come to

1032
00:57:47,440 --> 00:57:51,120
Speaker 3: actually appreciate the butterflies as opposed to trying to just

1033
00:57:51,160 --> 00:57:55,800
Speaker 3: push them away. My practice schedule is the same for

1034
00:57:55,880 --> 00:57:59,000
Speaker 3: any kind of big case, which is, I take notes

1035
00:57:59,040 --> 00:58:02,960
Speaker 3: on the briefs that have been filed, and then I relentlessly,

1036
00:58:03,120 --> 00:58:06,240
Speaker 3: relentlessly practice the argument in front of people both new

1037
00:58:06,240 --> 00:58:09,000
Speaker 3: to the case like the judges will be, and people

1038
00:58:09,120 --> 00:58:12,200
Speaker 3: are experts on the case, and they are throwing questions

1039
00:58:12,240 --> 00:58:15,240
Speaker 3: at me one after another for hours. And I do

1040
00:58:15,280 --> 00:58:19,880
Speaker 3: this sometimes, you know, as many as six, eight, ten times.

1041
00:58:20,480 --> 00:58:23,240
Speaker 3: In the tirest case, I did it eight times, practicing

1042
00:58:23,600 --> 00:58:27,480
Speaker 3: the argument in front of all these people. And I

1043
00:58:27,560 --> 00:58:30,520
Speaker 3: then go and I listen to the arguments these practice

1044
00:58:30,520 --> 00:58:33,600
Speaker 3: sessions on MP three, I put it on you know,

1045
00:58:33,640 --> 00:58:36,240
Speaker 3: something that I can put on my iPhone and then

1046
00:58:36,280 --> 00:58:40,120
Speaker 3: I'll run to it or something like that. And so

1047
00:58:40,200 --> 00:58:43,400
Speaker 3: I'm just thinking to myself, A. Can I answer the

1048
00:58:43,440 --> 00:58:48,120
Speaker 3: question better? B? Can I answer it more quickly? C?

1049
00:58:49,280 --> 00:58:52,680
Speaker 3: Can I answer the question in a way that doesn't

1050
00:58:52,760 --> 00:58:55,240
Speaker 3: invite a follow up question that I really don't want

1051
00:58:55,320 --> 00:58:58,280
Speaker 3: to ask? And then D the most dark arts part

1052
00:58:58,280 --> 00:59:00,760
Speaker 3: of it. Can I answer the quest question in a

1053
00:59:00,800 --> 00:59:03,880
Speaker 3: way that leads them to ask the next question, which

1054
00:59:03,920 --> 00:59:04,880
Speaker 3: is one I do want.

1055
00:59:05,320 --> 00:59:09,480
Speaker 2: So there's a lot of tactical thinking and strategy beyond

1056
00:59:09,720 --> 00:59:12,720
Speaker 2: just legal knowledge and rehearsal.

1057
00:59:12,400 --> 00:59:14,520
Speaker 3: One hundred percent. Like I mean, you know, in a

1058
00:59:14,560 --> 00:59:17,360
Speaker 3: big case, yes, you got to know the law, you

1059
00:59:17,440 --> 00:59:20,280
Speaker 3: got to know the history, you got to have all

1060
00:59:20,320 --> 00:59:22,400
Speaker 3: of the you know, finer points, you.

1061
00:59:22,320 --> 00:59:25,160
Speaker 2: Know, memorized table mistakes though, but at the end.

1062
00:59:25,000 --> 00:59:27,840
Speaker 3: Of it, in the big cases, what really matters is

1063
00:59:28,520 --> 00:59:31,840
Speaker 3: can you pivot the conversation in the way you want?

1064
00:59:32,560 --> 00:59:36,160
Speaker 3: Can you show maximum credibility with the court? Can you

1065
00:59:36,240 --> 00:59:39,160
Speaker 3: really be a true listener to the questions and not

1066
00:59:39,400 --> 00:59:42,680
Speaker 3: answer the question that you want asked, because they may

1067
00:59:42,680 --> 00:59:44,760
Speaker 3: be asking you a different one and you've got to

1068
00:59:44,800 --> 00:59:49,880
Speaker 3: answer that one. And so, uh, it is a really

1069
00:59:49,920 --> 00:59:52,520
Speaker 3: specialized skill, which is why you know, I tend to

1070
00:59:52,560 --> 00:59:54,720
Speaker 3: be brought in for these cases which, like you know,

1071
00:59:54,800 --> 00:59:56,560
Speaker 3: I don't know how to do a trial. In fact,

1072
00:59:56,640 --> 00:59:59,480
Speaker 3: I was special prosecutor in the George Floyd murder, and

1073
00:59:59,680 --> 01:00:03,120
Speaker 3: but I handled all the appeal stuff because I mean,

1074
01:00:03,440 --> 01:00:05,560
Speaker 3: you know, I have no idea how to cross examine

1075
01:00:05,560 --> 01:00:08,960
Speaker 3: a witness or something, and so you know, I do

1076
01:00:09,080 --> 01:00:12,000
Speaker 3: one thing, hopefully I do it kind of well, and

1077
01:00:12,120 --> 01:00:15,280
Speaker 3: but the practice sessions are really I think the secret sauce.

1078
01:00:15,520 --> 01:00:19,120
Speaker 2: Kind of well, kind of well, how long did the

1079
01:00:19,240 --> 01:00:20,520
Speaker 2: oral arguments last? How?

1080
01:00:20,920 --> 01:00:22,520
Speaker 3: I think there are a couple hours long.

1081
01:00:22,760 --> 01:00:24,840
Speaker 2: That's what it looked like when I saw it on YouTube.

1082
01:00:24,880 --> 01:00:26,400
Speaker 2: And I'm like, I don't know how much of this

1083
01:00:26,680 --> 01:00:29,120
Speaker 2: because I listened to a good chunk of it and

1084
01:00:29,880 --> 01:00:32,400
Speaker 2: kept starting and stopping, and I'm like, this feels like

1085
01:00:33,040 --> 01:00:37,120
Speaker 2: typical appellate arguments are not hours long, right.

1086
01:00:37,080 --> 01:00:39,600
Speaker 3: You know, set for twenty minutes, except for twenty three

1087
01:00:39,640 --> 01:00:42,240
Speaker 3: minutes I think for me, and I'm pretty sure I

1088
01:00:42,240 --> 01:00:44,240
Speaker 3: probably went for an hour or something like that.

1089
01:00:44,400 --> 01:00:47,520
Speaker 2: Yeah, And how did opposing counsel? How much time did

1090
01:00:47,520 --> 01:00:47,880
Speaker 2: they use it?

1091
01:00:48,000 --> 01:00:49,520
Speaker 3: And I think they used a fair amount of time

1092
01:00:49,560 --> 01:00:52,120
Speaker 3: as well. I think the court really did want to

1093
01:00:52,160 --> 01:00:54,520
Speaker 3: try and ask a lot of the hard questions to

1094
01:00:54,600 --> 01:00:58,880
Speaker 3: both sides, and so yeah, so I think it did

1095
01:00:58,920 --> 01:00:59,320
Speaker 3: go long.

1096
01:00:59,520 --> 01:01:03,280
Speaker 2: So the DC Court of Appeals recognizes how significant this

1097
01:01:03,400 --> 01:01:06,600
Speaker 2: case is, they expedite it. It's a full on bank.

1098
01:01:06,720 --> 01:01:11,280
Speaker 2: All eleven justices hear it. Where does it go from here?

1099
01:01:11,360 --> 01:01:14,720
Speaker 2: I was trying to figure out what options So I'm

1100
01:01:14,760 --> 01:01:19,680
Speaker 2: going to assume for argument's sake that the plaintiff is

1101
01:01:19,800 --> 01:01:23,120
Speaker 2: successful in this case, and they affirm the lower court's

1102
01:01:23,200 --> 01:01:29,160
Speaker 2: ruling against the president. Tariffs are Congress's venue, not the

1103
01:01:29,200 --> 01:01:34,720
Speaker 2: president's their responsibility. What happens from here? What can the

1104
01:01:34,800 --> 01:01:38,600
Speaker 2: Supreme Court do? They could say that's fine, let it

1105
01:01:38,640 --> 01:01:42,560
Speaker 2: stands as far as I know. They could remand the

1106
01:01:42,600 --> 01:01:45,880
Speaker 2: case for further fact finding to the trial judge and

1107
01:01:45,920 --> 01:01:48,960
Speaker 2: say we want to see more specific things, or they

1108
01:01:49,000 --> 01:01:52,280
Speaker 2: can take it up on a full hearing. What am

1109
01:01:52,280 --> 01:01:54,200
Speaker 2: I missing? What am I forgetting from law school?

1110
01:01:54,240 --> 01:01:57,800
Speaker 3: That's exactly right. So if we win, you know, the

1111
01:01:57,840 --> 01:02:00,000
Speaker 3: government will try and take the case to the Supreme Court.

1112
01:02:00,120 --> 01:02:02,960
Speaker 3: They've already said they would do that, and we hope

1113
01:02:03,000 --> 01:02:04,919
Speaker 3: the Supreme Court at that point wouldn't hear the case.

1114
01:02:04,960 --> 01:02:08,640
Speaker 3: I mean, I'm privileged to represent these plaintefs. They're small businesses.

1115
01:02:08,760 --> 01:02:12,360
Speaker 3: Bos Selections is a small wine company. It's been around

1116
01:02:12,400 --> 01:02:15,760
Speaker 3: for a while. And if they're saying, and they filed

1117
01:02:15,800 --> 01:02:17,880
Speaker 3: briefs in the Supreme Court, in the Court of Appeals,

1118
01:02:17,880 --> 01:02:21,200
Speaker 3: it's say, if we lose this case, our business may

1119
01:02:21,240 --> 01:02:23,800
Speaker 3: go under, and other businesses like ours may go under.

1120
01:02:24,320 --> 01:02:27,840
Speaker 3: And so you know, we think from the perspective of

1121
01:02:27,840 --> 01:02:31,200
Speaker 3: small businesses in particular, it's really important that this is

1122
01:02:31,280 --> 01:02:34,200
Speaker 3: you get settled and settled quickly. And if the Court

1123
01:02:34,200 --> 01:02:38,240
Speaker 3: of Appeals says, I hope they will that President Trump's

1124
01:02:38,280 --> 01:02:40,840
Speaker 3: tariffs are unconstitutional, we hope that's the end of it.

1125
01:02:40,840 --> 01:02:42,720
Speaker 3: It might not be. Of course, Supreme Court may decide

1126
01:02:42,720 --> 01:02:46,880
Speaker 3: to hear the case. Conversely, if the government wins in

1127
01:02:46,920 --> 01:02:49,960
Speaker 3: the Court of Appeals and says these tariffs are okay,

1128
01:02:50,800 --> 01:02:53,600
Speaker 3: then we would presumably go to the Supreme Court and

1129
01:02:53,640 --> 01:02:56,680
Speaker 3: say no, they're not, and then ask the Supreme Court

1130
01:02:56,680 --> 01:02:58,800
Speaker 3: to hear it. And then there is, as you say,

1131
01:02:58,840 --> 01:03:03,040
Speaker 3: a third option, which the Court of Appeals might say, hey,

1132
01:03:03,120 --> 01:03:05,200
Speaker 3: you know, we think that this needs to go back

1133
01:03:05,240 --> 01:03:08,440
Speaker 3: to the trial court for further fact finding on something

1134
01:03:08,560 --> 01:03:11,840
Speaker 3: or the other. You know, I think that's in many

1135
01:03:11,880 --> 01:03:14,960
Speaker 3: ways the worst of every world because everyone needs certainty

1136
01:03:15,080 --> 01:03:19,800
Speaker 3: around this, particularly the business community, and so you know,

1137
01:03:20,600 --> 01:03:23,520
Speaker 3: you know, there's definitely been floated as a possibility, but

1138
01:03:23,600 --> 01:03:26,360
Speaker 3: it's one that I think wouldn't be attractive to the government.

1139
01:03:27,120 --> 01:03:29,240
Speaker 2: And the facts in question are pretty clear. Here's what

1140
01:03:29,280 --> 01:03:33,640
Speaker 2: the president did, he is what the litigation has showed,

1141
01:03:33,800 --> 01:03:38,840
Speaker 2: and here's the legislation and the constitution. The specific facts

1142
01:03:38,840 --> 01:03:42,120
Speaker 2: don't seem to matter that much other than what is

1143
01:03:42,200 --> 01:03:43,760
Speaker 2: pretty widely understood.

1144
01:03:43,920 --> 01:03:46,240
Speaker 3: Yeah, so that's correct, That's exactly our argument.

1145
01:03:46,680 --> 01:03:52,080
Speaker 2: So let's talk about remedies. Hypothetically, you win at the

1146
01:03:52,120 --> 01:03:56,680
Speaker 2: appellate level. There's been a stay for the prior victory

1147
01:03:56,720 --> 01:04:00,120
Speaker 2: at the district court level, at the International Court of Trade.

1148
01:04:01,080 --> 01:04:06,680
Speaker 2: What sort of remedies do small businesses get? Can the

1149
01:04:06,720 --> 01:04:10,360
Speaker 2: tariffs be thrown out? Can companies that have paid tariffs?

1150
01:04:10,360 --> 01:04:12,919
Speaker 2: Can they get refunds? How does this work? Right?

1151
01:04:13,000 --> 01:04:15,720
Speaker 3: So, I think right now, all we have asked for

1152
01:04:16,000 --> 01:04:19,040
Speaker 3: in our case is is for the tariffs to be

1153
01:04:19,120 --> 01:04:23,560
Speaker 3: declared unconstitutional, illegal and void. There is a question, as

1154
01:04:23,560 --> 01:04:27,320
Speaker 3: you say about about companies individuals that have paid tariffs,

1155
01:04:27,560 --> 01:04:30,000
Speaker 3: can they get a refund on that from the government.

1156
01:04:30,600 --> 01:04:33,160
Speaker 3: That's not something that's been briefed yet or argued. I

1157
01:04:33,320 --> 01:04:36,840
Speaker 3: think it is kicking around as an issue. When President

1158
01:04:36,880 --> 01:04:41,520
Speaker 3: Trump issued some tariffs that were declared illegal before, there

1159
01:04:41,560 --> 01:04:44,120
Speaker 3: were refund actions that were filed, and I think those

1160
01:04:44,120 --> 01:04:47,960
Speaker 3: refund actions are still pending years later in the courts. Yes,

1161
01:04:48,360 --> 01:04:52,160
Speaker 3: so you know, it's a long process, that refund process

1162
01:04:52,240 --> 01:04:55,800
Speaker 3: to the extent it's available. We have just not gotten

1163
01:04:55,840 --> 01:04:56,760
Speaker 3: into that at the time.

1164
01:04:56,840 --> 01:04:59,960
Speaker 2: And I look at tariffs as of that tax on consumers.

1165
01:05:00,600 --> 01:05:03,360
Speaker 2: I'm going to assume consumers are just that money's gone.

1166
01:05:03,360 --> 01:05:04,840
Speaker 2: They'll never be able to see that back.

1167
01:05:05,000 --> 01:05:06,560
Speaker 3: Yeah, I don't know if that, you know, I think

1168
01:05:06,600 --> 01:05:09,000
Speaker 3: that may be the case. I think you're right to

1169
01:05:09,120 --> 01:05:12,600
Speaker 3: characterize tariffs as a tax. I think you're one hundred

1170
01:05:12,600 --> 01:05:15,280
Speaker 3: percent right. That's what we're talking about. We're talking about

1171
01:05:15,320 --> 01:05:18,600
Speaker 3: the price because of President Trump's tariffs, the price of

1172
01:05:18,640 --> 01:05:22,240
Speaker 3: everything you're hurting on Amazon or at the grocery store, whatever,

1173
01:05:22,800 --> 01:05:26,200
Speaker 3: you know, increasing the cost to you, the American consumer. Indeed,

1174
01:05:26,400 --> 01:05:30,840
Speaker 3: the Tax Foundation, which is a nonpartisan group, has said

1175
01:05:30,840 --> 01:05:33,960
Speaker 3: that this is the largest tax increase on American consumers

1176
01:05:33,960 --> 01:05:36,360
Speaker 3: since Bill Clinton in nineteen ninety three.

1177
01:05:36,640 --> 01:05:39,960
Speaker 2: That's a big tax increase, isn't it. Yeah, So let's

1178
01:05:40,000 --> 01:05:43,479
Speaker 2: talk about I know you don't want to speculate about

1179
01:05:43,520 --> 01:05:49,520
Speaker 2: the Supreme Court. This court seems to have been increasingly

1180
01:05:49,600 --> 01:05:55,960
Speaker 2: allowing presidential authority to expand. At what point is it

1181
01:05:56,000 --> 01:06:00,520
Speaker 2: a bridge too far? This is essentially we're going to

1182
01:06:00,520 --> 01:06:06,320
Speaker 2: give the president the authority to tax, which is Congress's responsibility.

1183
01:06:07,160 --> 01:06:10,000
Speaker 2: How do you think about how the Supreme Court is

1184
01:06:10,080 --> 01:06:13,920
Speaker 2: going to contextualize this. Is there a narrow keyhole that

1185
01:06:13,960 --> 01:06:16,280
Speaker 2: they can sort of, you know, thread the needle and

1186
01:06:16,360 --> 01:06:21,080
Speaker 2: avoid the constitutional argument. I'm trying not to put words

1187
01:06:21,120 --> 01:06:25,320
Speaker 2: in your mouth and think about what are the possible

1188
01:06:25,760 --> 01:06:27,120
Speaker 2: scenarios we could go down.

1189
01:06:27,600 --> 01:06:30,360
Speaker 3: Yeah, so I think, you know, the Supreme Court has

1190
01:06:31,120 --> 01:06:33,960
Speaker 3: probably the same three options that we talked about earlier

1191
01:06:33,960 --> 01:06:37,880
Speaker 3: for the Court of Appeals, declare the tariffs illegal and unconstitutional?

1192
01:06:38,200 --> 01:06:41,959
Speaker 3: Declare the tariffs constitutional and legal, or send it back

1193
01:06:42,000 --> 01:06:45,320
Speaker 3: to the trial court for some fact finding. I do

1194
01:06:45,400 --> 01:06:50,960
Speaker 3: think that there's a deep concern that this president is

1195
01:06:51,000 --> 01:06:54,960
Speaker 3: asserting powers in very, very muscular ways, and some of

1196
01:06:54,960 --> 01:06:57,720
Speaker 3: those are legitimate and others are not. This is one

1197
01:06:57,760 --> 01:07:01,240
Speaker 3: that I think is pretty easy to characterizes, falling on

1198
01:07:01,280 --> 01:07:04,520
Speaker 3: the latter side of that line. Others are more difficult,

1199
01:07:04,680 --> 01:07:08,320
Speaker 3: and you know, and so I think there's a conversation

1200
01:07:08,640 --> 01:07:11,760
Speaker 3: at the court about that question. But I think they're

1201
01:07:11,760 --> 01:07:14,480
Speaker 3: going to approach this case as they do any on

1202
01:07:14,600 --> 01:07:17,880
Speaker 3: its own individual facts, and the facts are I think

1203
01:07:17,920 --> 01:07:21,920
Speaker 3: here that the president hasn't done what the Constitution requires,

1204
01:07:21,920 --> 01:07:24,120
Speaker 3: which is to have him go to Congress and get

1205
01:07:24,160 --> 01:07:27,320
Speaker 3: the authority for the things that he says he claims

1206
01:07:27,360 --> 01:07:28,720
Speaker 3: he needs so desperately.

1207
01:07:29,280 --> 01:07:34,320
Speaker 2: So the middle e in AIPA is emergency. Is there

1208
01:07:34,520 --> 01:07:37,320
Speaker 2: an argument to be had that, hey, we're in the

1209
01:07:37,360 --> 01:07:42,360
Speaker 2: middle of an emergency, although you know some of the

1210
01:07:42,400 --> 01:07:46,080
Speaker 2: things that kind of surprise me about the tariffs he

1211
01:07:46,160 --> 01:07:50,360
Speaker 2: negos to the president negotiated the North American Trade Group

1212
01:07:50,440 --> 01:07:54,000
Speaker 2: of trade laws and now threw that out in tariff

1213
01:07:54,400 --> 01:07:57,560
Speaker 2: and we have a free trade agreement with South Korea

1214
01:07:57,600 --> 01:08:01,720
Speaker 2: and suddenly with tariffing them. How is it an emergency

1215
01:08:01,760 --> 01:08:05,240
Speaker 2: if you're tariffing every country in the world, including those

1216
01:08:05,320 --> 01:08:08,600
Speaker 2: that do not have tariffs on our goods.

1217
01:08:08,640 --> 01:08:10,760
Speaker 3: It's one hundred percent right. And I would point out

1218
01:08:10,800 --> 01:08:13,400
Speaker 3: that the language of this nineteen seventy seven law that

1219
01:08:13,440 --> 01:08:17,280
Speaker 3: President Trump is is relying on AIPA. It doesn't just

1220
01:08:17,280 --> 01:08:20,280
Speaker 3: say emergency. It says it must also be an unusual

1221
01:08:20,479 --> 01:08:25,120
Speaker 3: and extraordinary threat. And yet the president's executive order imposing

1222
01:08:25,160 --> 01:08:28,560
Speaker 3: these tariffs has said trade deficits have been a persistent

1223
01:08:28,640 --> 01:08:31,320
Speaker 3: feature of the American economy for the last fifty years.

1224
01:08:31,800 --> 01:08:35,920
Speaker 3: And so he basically pled himself out of court because

1225
01:08:36,160 --> 01:08:39,439
Speaker 3: his own executive order says these trade deficits are not

1226
01:08:39,680 --> 01:08:43,479
Speaker 3: unusual and extraordinary, They're commonplace and de raguer in the

1227
01:08:43,479 --> 01:08:47,880
Speaker 3: American economy. So that was I think a big portion

1228
01:08:48,000 --> 01:08:51,320
Speaker 3: of my oral argument before the court. And you know,

1229
01:08:51,400 --> 01:08:53,640
Speaker 3: I suspect that we'll, you know, get a bunch of

1230
01:08:53,680 --> 01:08:56,679
Speaker 3: attention in whatever decision the Court of Appeals will make.

1231
01:08:58,160 --> 01:09:02,280
Speaker 3: So I think, look, you want a circumstance, and Founders

1232
01:09:02,360 --> 01:09:06,200
Speaker 3: wanted a wanted a constitutional structure in which, if there

1233
01:09:06,280 --> 01:09:08,719
Speaker 3: is a true emergency, presidents get leeway.

1234
01:09:08,800 --> 01:09:13,679
Speaker 2: You're anticipating my next question, which is the Supreme Court

1235
01:09:13,800 --> 01:09:17,479
Speaker 2: doesn't want to tie the president's hand in cases of

1236
01:09:17,520 --> 01:09:23,200
Speaker 2: true emergencies. I'm hearing your argument. This should have nothing

1237
01:09:23,200 --> 01:09:25,000
Speaker 2: to do with that there's no emergency.

1238
01:09:25,040 --> 01:09:27,439
Speaker 3: Exactly. You've got time to go to Congress. Think back

1239
01:09:27,479 --> 01:09:31,400
Speaker 3: to President Lincoln in the Civil War. He orders the

1240
01:09:31,439 --> 01:09:35,040
Speaker 3: blockade of the South, he suspends the rid of habeas corpus,

1241
01:09:35,640 --> 01:09:40,120
Speaker 3: and and yet he says, I'm going to call a

1242
01:09:40,120 --> 01:09:43,400
Speaker 3: special session of Congress on July fourth to get people

1243
01:09:43,479 --> 01:09:46,360
Speaker 3: back to vote and say did I do Do you

1244
01:09:46,439 --> 01:09:48,160
Speaker 3: ratify what I did? I had to do it in

1245
01:09:48,200 --> 01:09:50,439
Speaker 3: an emergency, And of course then you didn't have middle

1246
01:09:50,439 --> 01:09:52,880
Speaker 3: of Civil War, middle of Civil War, no telecoms, no

1247
01:09:52,960 --> 01:09:55,640
Speaker 3: instant email or anything like that. You know, so he

1248
01:09:55,680 --> 01:09:57,960
Speaker 3: had to take certain actions in order to protect the

1249
01:09:58,000 --> 01:10:01,280
Speaker 3: American Republic. And you you know, certainly I and the

1250
01:10:01,280 --> 01:10:04,519
Speaker 3: small businesses and privilege to represent. We're not saying in

1251
01:10:04,560 --> 01:10:07,919
Speaker 3: some true emergency in which Congress can't act, the president

1252
01:10:07,960 --> 01:10:10,240
Speaker 3: can't fill the void. Of course he can. This is

1253
01:10:10,280 --> 01:10:12,400
Speaker 3: the opposite of that. This is one in which Congress

1254
01:10:12,439 --> 01:10:15,400
Speaker 3: is operating normally. The trade deficits have been going on

1255
01:10:15,479 --> 01:10:19,200
Speaker 3: for fifty years. No president has ever sought this kind

1256
01:10:19,240 --> 01:10:22,479
Speaker 3: of sweeping power. And yet he comes along and says, I,

1257
01:10:22,600 --> 01:10:25,920
Speaker 3: Donald Trump get this power. That's a very dangerous thing,

1258
01:10:26,400 --> 01:10:28,880
Speaker 3: not just because for some people who are concerned about

1259
01:10:28,880 --> 01:10:32,400
Speaker 3: President Trump, but if you're concerned about President Mamdani or

1260
01:10:32,400 --> 01:10:35,080
Speaker 3: whomever in the future. You don't want presidents to have

1261
01:10:35,120 --> 01:10:37,160
Speaker 3: that kind of sweeping power on their own.

1262
01:10:37,520 --> 01:10:39,960
Speaker 2: What a perfect place to leave it. Thank you, Neil

1263
01:10:40,040 --> 01:10:42,960
Speaker 2: for being so generous with your time. We have been

1264
01:10:43,000 --> 01:10:46,920
Speaker 2: speaking with Neil Kadial. He is the appellate litigator for

1265
01:10:47,040 --> 01:10:51,440
Speaker 2: VOS Selections Versus Trump, which seeks to declare the president's

1266
01:10:51,680 --> 01:10:56,320
Speaker 2: tariffs not only null and void, but unconstitutional. If you

1267
01:10:56,479 --> 01:10:59,200
Speaker 2: enjoy this conversation, well, check out any of the other

1268
01:10:59,560 --> 01:11:02,600
Speaker 2: five home we've done over the past twelve years. You

1269
01:11:02,640 --> 01:11:07,519
Speaker 2: can find those at iTunes, Spotify, Bloomberg YouTube, wherever you

1270
01:11:07,560 --> 01:11:10,800
Speaker 2: find your favorite podcasts. I would be remiss if I

1271
01:11:10,800 --> 01:11:12,680
Speaker 2: did not thank the craft team that helps us put

1272
01:11:12,720 --> 01:11:17,560
Speaker 2: these conversations together each week. Alexis Norieger is my producer.

1273
01:11:17,960 --> 01:11:21,120
Speaker 2: Sage Bauman is the head of podcasts at Bloomberg. Sean

1274
01:11:21,200 --> 01:11:25,879
Speaker 2: Russo is my researcher. I'm Barry Ritolts. You've been listening

1275
01:11:25,920 --> 01:11:33,560
Speaker 2: to Masters in Business on Bloomberg Radio.