WEBVTT - Special Edition: Neal Katyal on Challenging Trump's Global Tariffs 0:00:02.520 --> 0:00:11.879 Bloomberg Audio Studios, podcasts, radio News. This is Masters in 0:00:11.960 --> 0:00:15.480 Business with Barry Ritholt on Bloomberg Radio. 0:00:16.680 --> 0:00:19.480 I know I say it every week, but this week 0:00:19.600 --> 0:00:23.919 I have an extra extra special guest. Neil Kadial is 0:00:23.960 --> 0:00:27.800 the former Solicitor General of the United States, where he 0:00:27.920 --> 0:00:33.159 focused on appellate and complex litigation on behalf of the 0:00:33.200 --> 0:00:37.040 Department of Justice. He has argued more than fifty cases 0:00:37.080 --> 0:00:40.239 before the Supreme Court. He is the recipient of the 0:00:40.440 --> 0:00:44.720 highest civilian award by the US Department of Justice, the 0:00:45.120 --> 0:00:48.920 Edmund Randolph Award, which he received in twenty eleven. The 0:00:49.040 --> 0:00:52.360 Chief Justice of the United States Supreme Court appointed him 0:00:52.400 --> 0:00:56.080 to the Advisory Committee on Federal Appellate Rules. He has 0:00:56.200 --> 0:01:01.280 won every accolade that an attorney can win, Litigator of 0:01:01.320 --> 0:01:05.720 the Year, Top one hundred Lawyers, five hundred leaving Lawyers 0:01:05.760 --> 0:01:09.880 in DC, the most financially innovative lawyer, on and on 0:01:09.920 --> 0:01:14.200 the list goes. He just has a CV that is 0:01:14.319 --> 0:01:18.040 really not to be believed. I reached out to Neil 0:01:18.200 --> 0:01:23.480 because he was representing the Plainiffs in the big tariff 0:01:23.840 --> 0:01:29.280 case Vos Selections versus Donald Trump, President, which he took 0:01:29.319 --> 0:01:34.319 over after the Plainiffs won at the International Court of 0:01:34.400 --> 0:01:39.360 Trade in DC. He argued the case in front of 0:01:39.400 --> 0:01:43.200 a full on bank hearing all eleven judges in the 0:01:43.319 --> 0:01:50.280 DC Court of Appeals. We recorded this on Wednesday, August 0:01:50.360 --> 0:01:54.000 twenty seventh, a few days before Labor Day weekend. We 0:01:54.160 --> 0:01:57.520 finished the recording and lo and behold. Two days later, 0:01:58.240 --> 0:02:02.200 the decision comes down. He wins a resounding victory, seven 0:02:02.240 --> 0:02:06.880 to four. The court very much bought into his arguments 0:02:06.920 --> 0:02:11.240 that the tariffs and any sort of taxes, duties, levies 0:02:12.040 --> 0:02:15.679 requires authorization from Congress. It is not within the purview 0:02:15.960 --> 0:02:20.480 of the executive branch of the President. So once we 0:02:20.600 --> 0:02:23.960 got that decision, I reached out to Neil again, and 0:02:24.040 --> 0:02:27.080 on Sunday, over the holiday weekends, I hopped off the beach. 0:02:27.120 --> 0:02:29.600 We got on the phone call for a half hour 0:02:29.680 --> 0:02:32.320 and recorded what he thought of the results, what he 0:02:32.360 --> 0:02:34.840 thought about the opinion, where the case is likely to 0:02:34.880 --> 0:02:37.720 go from here, how things look in terms of the 0:02:38.360 --> 0:02:41.000 odds that the Supreme Court are going to hear this. 0:02:41.880 --> 0:02:46.640 I thought the entire conversation was absolutely fascinating, not just 0:02:46.720 --> 0:02:50.760 because hey, this is news right now, and because he 0:02:50.800 --> 0:02:55.320 won the case two days later. He's just such a thoughtful, 0:02:55.880 --> 0:03:01.359 intelligent lawyer who really takes his role as an officer 0:03:01.400 --> 0:03:05.800 of the court and helping to define the jurisprunes of 0:03:06.240 --> 0:03:11.560 American law very very seriously. Just such a bright, thoughtful 0:03:12.280 --> 0:03:16.880 guy who just wants us to respect the Constitution. I 0:03:16.960 --> 0:03:20.360 thought the conversation was fascinating. I think you will also. 0:03:20.480 --> 0:03:24.680 We'll start out with our PostScript the conversation after we 0:03:24.760 --> 0:03:28.160 found out that Katiel's clients won at the appellate level, 0:03:28.440 --> 0:03:31.960 and then we'll go to the entire our conversation we 0:03:32.040 --> 0:03:35.160 had while we still didn't know what the outcome of 0:03:35.200 --> 0:03:39.040 the case was, with no further ado, my discussion with 0:03:39.160 --> 0:03:46.760 Appellet attorney Neil Kadial. First off, Neil, congratulations, you just 0:03:46.880 --> 0:03:52.440 won a major repellate case in Vos Selections versus Donald Trump. 0:03:52.840 --> 0:03:55.920 So congrats, Thank you so much. 0:03:56.200 --> 0:03:58.480 Yeah, I think I saw you and we had our 0:03:58.520 --> 0:04:01.560 interview the day before the decision came down. The way 0:04:01.560 --> 0:04:04.120 the Court of Appeals works like the US Supreme Court, 0:04:04.360 --> 0:04:07.840 they never tell you in advance when a decision's coming down. 0:04:08.200 --> 0:04:10.200 And indeed it was a little I think past five 0:04:10.200 --> 0:04:12.920 o'clock on Friday, right before Labor Day, and I was 0:04:12.960 --> 0:04:15.000 about to leave the office, and then I heard my 0:04:15.120 --> 0:04:17.800 email ding and I look at it and I'm like, well, 0:04:17.839 --> 0:04:20.039 I might as well see what this is. I assumed 0:04:20.040 --> 0:04:23.839 it was just some you know, minor thing, and they're like, whoa, 0:04:23.920 --> 0:04:27.080 it's the decision. And you know, Barry, they let me 0:04:27.160 --> 0:04:30.040 know the decision at the very same time. They let 0:04:30.120 --> 0:04:32.760 the world know, because otherwise, if they let me know 0:04:32.800 --> 0:04:36.480 in advance, you know, that's private information. This is the 0:04:36.560 --> 0:04:39.600 kind of information that does move markets. And so they 0:04:39.680 --> 0:04:42.159 let the entire world know, including me, at the very 0:04:42.200 --> 0:04:42.800 same time. 0:04:43.240 --> 0:04:47.920 So let's put this into a little timeline. We had 0:04:47.960 --> 0:04:55.880 our recording Wednesday, August twenty seventh. The decision dropped around 0:04:55.880 --> 0:05:00.760 five o'clock on Friday, August twenty ninth. Today is Sunday, 0:05:00.880 --> 0:05:05.240 August thirty. First, everybody else is on the beach. I 0:05:05.279 --> 0:05:07.719 know you're leaving for Europe in a couple of days, 0:05:07.720 --> 0:05:10.400 but I wanted to just touch base with you and 0:05:10.600 --> 0:05:13.600 try and figure out where this goes from here. So 0:05:14.279 --> 0:05:17.720 let's start out with the decision. I thought the majority 0:05:17.800 --> 0:05:22.400 decision seven to four your way. I thought it was 0:05:22.440 --> 0:05:29.280 a pretty powerful refutation of the executive's ability to just 0:05:29.400 --> 0:05:32.560 impose tariffs I don't want to say on a whim, 0:05:33.320 --> 0:05:38.880 but lacking the specific following of the AIBA rules and 0:05:38.920 --> 0:05:41.920 what an emergency actually is, can you address that a 0:05:41.960 --> 0:05:42.360 little bit? 0:05:42.760 --> 0:05:45.520 Yeah, I think that the seven judges and the majority 0:05:45.720 --> 0:05:49.800 were saying exactly what we've said all along, which is, 0:05:50.320 --> 0:05:52.599 maybe these terrifts are a good idea, maybe they're a 0:05:52.640 --> 0:05:55.839 bad idea, but they can't be imposed by the president's 0:05:55.960 --> 0:05:59.040 pen alone. You got to go to Congress and get 0:05:59.080 --> 0:06:02.720 that author as a that that's our constitutional system. And 0:06:02.760 --> 0:06:05.800 what the seven judges said is that's exactly right. That 0:06:05.880 --> 0:06:09.200 the Congress has never given the president such a sweeping 0:06:09.680 --> 0:06:11.640 power to just do it on his own, and if 0:06:11.680 --> 0:06:14.800 they did, they said it'd be unconstitutional. But they said 0:06:14.880 --> 0:06:18.080 that isn't what's going on here. And the president has 0:06:18.080 --> 0:06:20.240 an easy fix if he wants to. He could go 0:06:20.279 --> 0:06:23.760 to Congress and seek approval for the tariffs that he wants. 0:06:24.080 --> 0:06:26.120 That's what he did the first time around, as we 0:06:26.160 --> 0:06:29.200 talked about last week. You know, that's something that failed 0:06:29.279 --> 0:06:32.000 in Congress, and so maybe that's why he doesn't want 0:06:32.040 --> 0:06:35.800 to do it. Obviously, these tariffs are highly unpopular, but nonetheless, 0:06:36.080 --> 0:06:39.080 you know, the Congress is controlled by his party, and 0:06:39.279 --> 0:06:41.320 you know that's the place to start. Don't run to 0:06:41.360 --> 0:06:43.799 the federal courts to do what you can't do in Congress. 0:06:44.400 --> 0:06:47.560 So I want to talk about the dissent in a bid, 0:06:47.600 --> 0:06:50.920 but let's just talk about what the appellate court did, 0:06:51.839 --> 0:06:54.240 which I was somewhat confused by, and maybe you can 0:06:54.279 --> 0:06:58.280 clarify this. They remand it back to the International Court 0:06:58.279 --> 0:07:02.800 of Trade in d State, which is a US court 0:07:03.320 --> 0:07:07.800 for findings about who this applies to. Like, it seems 0:07:07.839 --> 0:07:10.080 sort of odd to say, well, and only might apply 0:07:10.120 --> 0:07:13.000 to the litigants. What are we going to have seven 0:07:13.040 --> 0:07:17.080 million cases on this tariffs? It would seem that either 0:07:17.080 --> 0:07:21.160 it's constitutional or unconstitutional and that applies to everybody. Or 0:07:21.160 --> 0:07:22.520 am I being naive? 0:07:22.920 --> 0:07:26.120 I think that's basically right Berry that I think ultimately 0:07:26.160 --> 0:07:29.720 the question is are these tariffs legal or illegal? If, 0:07:29.760 --> 0:07:32.360 as the Court of Appeals said, they're illegal, then the 0:07:32.600 --> 0:07:37.360 vast vast majority of Trump's tariffs are unconstitutional, illegal, can't 0:07:37.360 --> 0:07:40.560 be imposed, and people who've have them imposed, you know, 0:07:40.600 --> 0:07:44.200 may have remedies and recourses. What the court also did, though, 0:07:44.240 --> 0:07:47.160 and you're referring to a fairly technical part of the decision, 0:07:47.360 --> 0:07:50.080 is it sent it case back to the lower court 0:07:50.120 --> 0:07:53.160 to evaluate the scope of the remedies. And that's because 0:07:53.200 --> 0:07:56.040 the US Supreme Court, just very recently, in the birthright 0:07:56.080 --> 0:08:00.160 citizenship case, has announced some new ways of thinking about 0:08:00.440 --> 0:08:03.960 relief on parties, in particular in class actions and things 0:08:04.040 --> 0:08:06.680 like that. And so I think the court Federal Circuit 0:08:06.680 --> 0:08:09.520 did the prudent thing here by just saying with respect 0:08:09.560 --> 0:08:11.800 to that, i'd like we'd like the lower court to 0:08:11.880 --> 0:08:14.520 evaluate it. I think that's pretty much a sideshow at 0:08:14.520 --> 0:08:17.960 this point. My strong hunch is that the federal government 0:08:18.280 --> 0:08:21.360 has a strong interest in resolving this question. After all, 0:08:21.400 --> 0:08:25.120 this is a really you know, initiative of President Trump's. 0:08:25.120 --> 0:08:27.800 It's been declared unconstitutional. So I think they're going to 0:08:27.840 --> 0:08:30.440 go to the Supreme Court. I mean, again, I wish 0:08:30.480 --> 0:08:32.640 that weren't the case. I wish they'd go to Congress, 0:08:32.679 --> 0:08:35.720 which is the way that our constitution commands things. But 0:08:36.280 --> 0:08:39.160 you know, according to the President's tweets and the like, 0:08:39.440 --> 0:08:40.880 they want to go to the Supreme Court. 0:08:41.800 --> 0:08:44.880 So what is the process like for this to go 0:08:45.200 --> 0:08:50.120 up to Scotus first, the remand back to the district 0:08:50.160 --> 0:08:55.080 court not relevant, that's just a very specific remedy question. 0:08:56.240 --> 0:09:02.199 Assuming the petition for sociari is filed by the government, 0:09:03.920 --> 0:09:06.280 what are the options? What might the Supreme Court do? 0:09:06.920 --> 0:09:08.559 Yeah, so I think you're right to say that the 0:09:09.280 --> 0:09:12.680 lower court proceedings on relief are relevant here. Indeed, the 0:09:12.720 --> 0:09:17.760 Federal Circuit said that lower court has no role at 0:09:17.840 --> 0:09:20.320 least until October fourteenth, because they wanted to give the 0:09:20.360 --> 0:09:23.719 government time to file what's called a petition for cucuare, 0:09:23.880 --> 0:09:26.880 which is a formal request to the US Supreme Court 0:09:26.920 --> 0:09:30.960 to hear the case. The government is saying that in 0:09:31.000 --> 0:09:34.360 these tweets by President the President and others, that they 0:09:34.440 --> 0:09:37.680 will file that petition for cuchuari, ask the Supreme Court 0:09:37.720 --> 0:09:39.800 to hear the case, and then it's obviously up to 0:09:39.800 --> 0:09:43.640 the Supreme Court to decide. Statistically, when the government asks 0:09:43.720 --> 0:09:48.040 them to hear a case, particularly one that has important consequences, 0:09:48.440 --> 0:09:51.960 the court does hear the case. So the court very 0:09:52.000 --> 0:09:54.280 well may set the case for oral argument, and then 0:09:54.320 --> 0:09:56.760 there'll be the argument from the two sides as to 0:09:57.160 --> 0:09:59.960 whether or not this lower court decision that we want 0:10:01.040 --> 0:10:05.520 declaring President Trump's Taristan constitutional, whether that will be upheld 0:10:05.559 --> 0:10:06.839 by the US Supreme Court. 0:10:07.600 --> 0:10:12.160 So I was kind of intrigued by the descent, which 0:10:13.480 --> 0:10:18.000 I'm not a practicing attorney anymore, so I'm not up 0:10:18.080 --> 0:10:21.760 to date in what is the latest thinking in terms 0:10:21.840 --> 0:10:25.040 of art. But it sort of seemed like one of 0:10:25.080 --> 0:10:30.040 the descents suggested that it's an emergency. If the president 0:10:30.200 --> 0:10:34.439 declares in an emergency, kind of makes that word meaningless. 0:10:35.040 --> 0:10:38.240 How did you read the significance of the descent and 0:10:38.320 --> 0:10:42.720 what might it mean to the hearing if this ultimately 0:10:42.760 --> 0:10:44.079 goes to the Supreme Court. 0:10:44.320 --> 0:10:47.280 I think that's exactly right on what you're saying, which is, 0:10:47.320 --> 0:10:49.960 if the descent were right, it basically reads the word 0:10:49.960 --> 0:10:53.040 emergency out of the statute. It gives carte blanche deference 0:10:53.480 --> 0:10:56.120 to the president, and the Supreme Court in an earlier 0:10:56.200 --> 0:10:58.920 case back in nineteen eleven, said you can't do that 0:10:58.960 --> 0:11:02.040 with the word emergency, And here, I think Verry, the 0:11:02.080 --> 0:11:05.080 other really important point is that the law that the 0:11:05.120 --> 0:11:09.400 President is citing AIPA doesn't just talk about emergency. It 0:11:09.440 --> 0:11:14.079 requires it to be unusual and extraordinary. And the president's 0:11:14.160 --> 0:11:18.840 own executive order when he imposed these tariffs, said that 0:11:18.880 --> 0:11:22.160 the trade deficits were persistent and gone on for fifty years, 0:11:22.200 --> 0:11:25.160 and the opposite of the unusual and extraordinary. And look, 0:11:25.200 --> 0:11:28.760 of course you want the president, in a genuine, true 0:11:28.880 --> 0:11:33.280 emergency that's unusual and extraordinary, to have extra powers, because 0:11:33.280 --> 0:11:37.160 if Congress can't meet to repel some threat or something 0:11:37.240 --> 0:11:39.440 like that, you want the president to have some gap 0:11:39.480 --> 0:11:41.960 billing power. This is the opposite of that. I mean, 0:11:42.000 --> 0:11:44.760 Congress is in session, they're passing bill after bill and 0:11:44.800 --> 0:11:46.960 the like, and of course they're controlled by the same 0:11:47.000 --> 0:11:50.120 political party as the president. So the idea that Congress 0:11:50.160 --> 0:11:53.120 can't act is you know, to use the technical legal 0:11:53.200 --> 0:11:54.040 term poppycock. 0:11:55.880 --> 0:11:59.280 Coming up, we continue our conversation with a pellet litigator. 0:11:59.440 --> 0:12:03.120 Neil Tu. I'm Barry Ridults. You're listening to Masters in 0:12:03.200 --> 0:12:07.640 Business on Bloomberg Radio. Let's broaden this out a little bit. 0:12:08.720 --> 0:12:12.880 I think this is an important case because I'm a 0:12:12.920 --> 0:12:18.720 market participant and tariffs are attacks. They're a headwind to 0:12:18.920 --> 0:12:23.160 consumer spending and other economic activities. But stepping back and 0:12:23.160 --> 0:12:27.720 looking at this from a constitutional standard, how much of 0:12:27.760 --> 0:12:33.720 this is focusing on how much authority the executive branch 0:12:33.920 --> 0:12:39.240 of the US government has. Is this an attempt to 0:12:39.320 --> 0:12:45.319 rebalance the three parts of government by this particular president, 0:12:45.760 --> 0:12:48.320 or is this just no we want our tariffs, and 0:12:48.800 --> 0:12:52.000 we want to stop all these bad things that the 0:12:52.080 --> 0:12:53.079 tariffs will cure. 0:12:53.720 --> 0:12:56.320 Yeah, I view this decision not as a rebalancing of 0:12:56.320 --> 0:12:59.640 our constitutional separation of powers up but rather a return 0:12:59.760 --> 0:13:04.680 to our founder's original concept was, which was Congress makes 0:13:04.720 --> 0:13:08.679 the laws, the president enforces them, the courts decide whether 0:13:08.720 --> 0:13:12.760 those laws are legal or not. And here what happened 0:13:12.840 --> 0:13:15.439 is you had a president who colored well outside of 0:13:15.480 --> 0:13:19.840 the lines, and you know, asserted an extraordinary power that 0:13:20.000 --> 0:13:24.440 no president in American history has ever asserted on his own. 0:13:24.800 --> 0:13:27.200 And I think the court is doing here what the 0:13:27.240 --> 0:13:31.000 courts have done time immemorial in other cases, whether it 0:13:31.120 --> 0:13:33.840 was the seizure of the steel mills by President Truman 0:13:34.120 --> 0:13:38.240 in nineteen fifty two, whether it was President Bush's law 0:13:38.320 --> 0:13:43.000 free zone at Guantanamo after the horrific nine to eleven attacks, 0:13:43.280 --> 0:13:47.800 whether it was you know, President Biden's student loan initiative programs. 0:13:48.160 --> 0:13:51.199 In all of these cases, you've had presidents that try 0:13:51.280 --> 0:13:54.840 and ascertain muscular powers and the court pushes back on them. 0:13:55.120 --> 0:13:59.040 And this is I think a pretty extreme illustration of 0:13:59.400 --> 0:14:02.280 a president and whose asserting powers that he has no 0:14:02.360 --> 0:14:03.200 business asserting. 0:14:04.040 --> 0:14:07.880 So at the appellate level. It was seven to four 0:14:07.880 --> 0:14:12.120 of the dissent was written by justice appointed by President Obama. 0:14:12.440 --> 0:14:15.560 It's kind of a little bit surprising to me when 0:14:15.600 --> 0:14:19.760 you look at the lay of the Supreme Court. I 0:14:19.800 --> 0:14:22.120 know a lot of people tend to look at that 0:14:22.880 --> 0:14:28.320 as Democrats versus Republicans. But the appallate attorneys, I know, 0:14:28.400 --> 0:14:31.960 and the people who are constitutional lawyers tend to look 0:14:32.000 --> 0:14:37.440 at it as originalists versus more modern interpreters. How are 0:14:37.480 --> 0:14:40.800 you looking at this case when it gets now, assuming 0:14:40.880 --> 0:14:43.200 it goes up to the Supreme Court, how are you 0:14:43.280 --> 0:14:45.120 looking at the context of this case? 0:14:45.560 --> 0:14:49.120 I love the question because you know, oftentimes people say 0:14:49.200 --> 0:14:52.800 things like, well, the Supreme Court is appointed by Republicans, 0:14:52.880 --> 0:14:56.040 so they only wrote republican or nonsense like that. This 0:14:56.240 --> 0:14:59.000 is not my experience. I mean, I've been lucky to 0:14:59.080 --> 0:15:01.160 argue fifty two K is there, and I just don't 0:15:01.200 --> 0:15:04.560 see it in the same way as those kind of 0:15:04.680 --> 0:15:07.480 pundits see it. And you know, I think you're right 0:15:07.520 --> 0:15:09.920 to say the decision by the seven to four courts 0:15:09.920 --> 0:15:12.920 a good illustration of that. The dissent written by a 0:15:13.000 --> 0:15:17.120 judge who was appointed by a democratic president. Our majority opinion, 0:15:17.200 --> 0:15:20.120 the senior most judge, and the majority is Judge Lourie, 0:15:20.240 --> 0:15:24.120 who was appointed by President Bush, but says that these 0:15:24.200 --> 0:15:26.960 terrorists are unconstitutional. So I don't think it's the right 0:15:26.960 --> 0:15:29.240 way to think about it. I think that there are 0:15:29.320 --> 0:15:33.560 people who take constitutional limits more seriously and others who 0:15:33.600 --> 0:15:37.240 want to defer and avoid getting the courts in the 0:15:37.280 --> 0:15:40.720 middle of something. And so maybe that's one axis that 0:15:40.840 --> 0:15:44.440 sometimes could be used to predict outcomes. But here I think, 0:15:44.480 --> 0:15:47.200 no matter which way you look at it, the president 0:15:47.560 --> 0:15:50.600 doesn't have this power. You know, we might wish he 0:15:50.680 --> 0:15:52.720 had this power. It might be a good idea for 0:15:52.840 --> 0:15:55.600 him to have this power. But our founders were as 0:15:55.640 --> 0:15:59.640 clear as day in Article one, Section eight they said specifically, 0:15:59.720 --> 0:16:03.240 the hour over duties is one given to the Congress, 0:16:03.360 --> 0:16:04.360 not to the president. 0:16:05.160 --> 0:16:08.080 So there are a couple of key issues. This is 0:16:08.120 --> 0:16:12.520 going to turn on the Constitutionality article on section eight, 0:16:13.520 --> 0:16:17.320 the i EPO laws, and what is an emergency? Any 0:16:17.360 --> 0:16:21.160 other factors that might drive this that we should be 0:16:21.160 --> 0:16:21.600 aware of. 0:16:22.280 --> 0:16:24.520 Yeah, I think there's a couple. One is that the 0:16:24.520 --> 0:16:27.440 Supreme Court in recent years has announced something called the 0:16:27.480 --> 0:16:31.120 Major Questions Doctrine, and the idea of that doctrine is 0:16:31.160 --> 0:16:34.480 to say, if Congress is giving the president some sort 0:16:34.520 --> 0:16:37.280 of power, they don't hide it in vague terms. They 0:16:37.320 --> 0:16:41.359 say it really expressly and clearly. You know Justice Scalia's 0:16:41.360 --> 0:16:46.360 phrases that Congress doesn't hide elephants and mouseholes. And at 0:16:46.400 --> 0:16:49.840 the oral argument, I took that to even further. I said, 0:16:49.880 --> 0:16:51.880 you know, this isn't just an elephant in a mousehole, 0:16:51.920 --> 0:16:54.920 it's a galaxy in a key hole. It's an extraordinary 0:16:54.920 --> 0:16:59.200 set of powers given to the president that claimed by 0:16:59.200 --> 0:17:03.080 the president. And you know, this doctrine Major Questions doctrine 0:17:03.120 --> 0:17:06.119 has been used very by the US Supreme Court repeatedly 0:17:06.160 --> 0:17:10.760 to strike down President Biden's initiatives, whether it's over greenhouse gases, 0:17:10.840 --> 0:17:13.240 or whether it's over student loans, or whether it was 0:17:13.280 --> 0:17:17.760 over COVID eviction moratoriums and things like that. And I 0:17:17.800 --> 0:17:20.920 think that you know what the majority said in this 0:17:21.080 --> 0:17:23.240 opinion that we won just a couple of days ago, 0:17:23.400 --> 0:17:25.639 is hey, what's sauce for the goose? The sauce for 0:17:25.680 --> 0:17:30.160 the gander. This applies to other presidential initiatives and including 0:17:30.240 --> 0:17:32.439 of course this one here, and that it would be 0:17:32.600 --> 0:17:36.280 a violation of the Major Questions doctrine for Congress who 0:17:36.400 --> 0:17:39.439 have not even used the word tariff for duty or 0:17:39.440 --> 0:17:42.080 anything like that in APA, and then to have a 0:17:42.119 --> 0:17:44.800 president come along and say, ha, I can now do 0:17:44.880 --> 0:17:45.960 whatever I want. 0:17:46.440 --> 0:17:52.919 So let's expand this a bit. How creative was it 0:17:53.200 --> 0:18:00.720 of the administration to try and get tariffs imposed on RYEPA? 0:18:01.240 --> 0:18:05.200 Is this something that's just wildly outside of what AEPA 0:18:05.280 --> 0:18:07.080 originally was designed about. 0:18:07.160 --> 0:18:10.040 One hundred percent. Nobody, and I've read the legislative history 0:18:10.080 --> 0:18:13.639 behind AEPA so very carefully, nobody thought that this was 0:18:14.000 --> 0:18:18.960 about the tariff power. And so yes, they get a 0:18:18.960 --> 0:18:23.560 a plus plus for creativity the Trump administration and coming 0:18:23.680 --> 0:18:26.240 up with an argument that not only no one in 0:18:26.320 --> 0:18:29.960 Congress thought, no president for fifty years has thought. Now, 0:18:30.280 --> 0:18:32.600 creativity only gets you so far, because you have to 0:18:32.600 --> 0:18:35.800 be at least somewhat faithful and accurate to the original 0:18:35.840 --> 0:18:39.359 text and meaning of the law. And that's where I 0:18:39.359 --> 0:18:42.400 think unfortunately they get n f and they fall down 0:18:42.480 --> 0:18:43.040 on the job. 0:18:43.880 --> 0:18:49.639 So I have a pretty solid recollection of sitting in 0:18:49.720 --> 0:18:56.560 constitutional law classes and occasionally seeing a decision that was 0:18:56.800 --> 0:19:00.720 just perplexing. Although when you're looking at something that's a 0:19:00.800 --> 0:19:05.199 century old, a dread Scott or a separate but equal 0:19:05.320 --> 0:19:09.520 type of decision. Obviously, you're bringing a modern perspective. It's 0:19:09.640 --> 0:19:13.520 very hard to see outside of that. I had the 0:19:13.640 --> 0:19:16.760 same You and I spoke before we had the decision 0:19:16.800 --> 0:19:19.560 come down. I was kind of perplexed that this was 0:19:19.600 --> 0:19:23.959 even like a debate. It seems pretty obvious. None of 0:19:24.000 --> 0:19:29.119 the normal rules for enacting tariffs, none of the procedures, policies, 0:19:30.280 --> 0:19:36.160 or allocation of powers amongst branches of government was followed. 0:19:36.440 --> 0:19:40.880 So what do you imagine the government's argument is going 0:19:40.920 --> 0:19:43.320 to be at the Supreme Court level. 0:19:43.720 --> 0:19:46.679 It's very I think the secret about Supreme Court and 0:19:46.760 --> 0:19:50.520 presidential power advocacy is that, I mean, no matter how 0:19:50.600 --> 0:19:55.600 creative and ridiculous the argument is, if the president voices it, 0:19:55.600 --> 0:19:57.680 it's a court case and it's going to be taken 0:19:57.800 --> 0:20:00.840 seriously by everyone, because it's after all, the press. And 0:20:00.880 --> 0:20:03.720 that's why, you know, when I was the president's top lawyer, 0:20:03.800 --> 0:20:08.919 courtroom lawyer, I was very careful to only make the 0:20:09.080 --> 0:20:12.680 arguments that I thought had very strong basis behind them, 0:20:12.720 --> 0:20:16.680 because you don't want to diminish that credibility that the 0:20:16.840 --> 0:20:21.040 government has with the US Supreme Court. Here, I do 0:20:21.119 --> 0:20:24.920 think that the arguments are quite a stretch for the 0:20:24.960 --> 0:20:28.800 administration to be making. And I think, you know, that's 0:20:28.840 --> 0:20:31.680 what you saw reflected in the seven to four opinion. 0:20:32.000 --> 0:20:34.320 So what do I think that the Solicitor General is 0:20:34.320 --> 0:20:35.960 going to say to the Supreme Court. I think he's 0:20:36.000 --> 0:20:39.199 going to say what he's been saying all along. The 0:20:39.240 --> 0:20:42.439 President says he needs this power. It'd be dangerous to 0:20:42.560 --> 0:20:45.560 unwind all of these deals and present it as a 0:20:45.600 --> 0:20:49.560 fade to complete. And I just think that's the wrong 0:20:49.600 --> 0:20:53.760 way to think about constitutional law, to allow a president 0:20:54.240 --> 0:20:56.639 to do what he wants in the interim and then say, oh, 0:20:56.640 --> 0:20:59.399 it would be too dangerous to unwind it. You know, 0:20:59.560 --> 0:21:02.560 I think it's better to get the constitutional rules right 0:21:02.640 --> 0:21:03.320 the first time. 0:21:04.000 --> 0:21:07.200 So some of the arguments I've seen from the administration 0:21:07.400 --> 0:21:11.320 is not only are the tariffs complicated, and then we've 0:21:11.359 --> 0:21:14.520 spent all this time and effort negotiating them, which this 0:21:14.560 --> 0:21:17.520 would negate, but it would be a negative for the 0:21:17.560 --> 0:21:22.480 global economy. You will cause economic distress around the world 0:21:22.640 --> 0:21:26.480 if you throw these tariffs out. Seems like seems like 0:21:26.480 --> 0:21:28.760 a little bit of a history onic claim. 0:21:29.359 --> 0:21:31.520 Well, I have two things to say about that, And 0:21:31.600 --> 0:21:33.399 you know, and you know, we can defer to the 0:21:33.440 --> 0:21:35.960 president about whether the claim is right or wrong, whether 0:21:36.000 --> 0:21:38.080 it's histrionic or the like. Let's just say it's right. 0:21:38.680 --> 0:21:42.240 Two things. One, If that's right, it walks right into 0:21:42.320 --> 0:21:45.520 the constitutional problem, which is the major questions doctrine. Right 0:21:45.600 --> 0:21:48.919 if the administration is saying, oh, the economy is going 0:21:49.000 --> 0:21:52.119 to collapse without these things, that's exactly the kind of 0:21:52.200 --> 0:21:55.280 major question that you think Congress has to decide, not 0:21:55.359 --> 0:21:59.080 the president. Number one and number two, If it isn't histrionic, 0:21:59.160 --> 0:22:02.000 if it's really right that the economy is going to collapse, 0:22:02.600 --> 0:22:04.800 then it's the easiest thing in the world for the 0:22:04.840 --> 0:22:07.880 President to go to Congress and seek authorization. I mean, 0:22:08.080 --> 0:22:10.560 I don't know the Congress wants the US economy to 0:22:10.640 --> 0:22:13.640 collapse in there, of course, members of his own political 0:22:13.680 --> 0:22:17.280 party that are running Congress, so there's not even a 0:22:17.359 --> 0:22:19.600 politics barrier or anything like that. 0:22:20.240 --> 0:22:22.960 So what are we missing? It seems like this doesn't 0:22:23.320 --> 0:22:28.560 survive on a constitutional basis. AIBA doesn't authorize it. If 0:22:28.560 --> 0:22:32.879 it's a major decision, take it to Congress. What else 0:22:33.000 --> 0:22:36.919 is going on other than I want these tariffs and 0:22:36.960 --> 0:22:40.040 I don't care how they get and acted what am 0:22:40.080 --> 0:22:40.920 I missing here? 0:22:41.280 --> 0:22:43.560 I'm not sure you're missing anything very I think you've 0:22:43.560 --> 0:22:47.919 got a president who's taken an incredibly muscular view of 0:22:47.920 --> 0:22:51.520 his authority and has done all of this stuff to 0:22:51.560 --> 0:22:54.880 the international economy and is now saying, oh too late, 0:22:54.920 --> 0:22:58.199 tone wind it. I'm already done. And you know that 0:22:58.320 --> 0:22:59.960 isn't the way constitutional law works. 0:23:00.560 --> 0:23:03.600 Let's just play this out so by the time people 0:23:03.600 --> 0:23:06.199 hear this, I don't think we'll find out if the 0:23:06.240 --> 0:23:11.879 Supreme Court is going to grant soshiiari immediately, but relatively 0:23:11.960 --> 0:23:15.040 soon if they're interested, sometime in the next few weeks. 0:23:15.119 --> 0:23:16.520 Is that is that a fair timeline. 0:23:17.000 --> 0:23:21.080 It's possible. It requires the government to file a cchuared petition, 0:23:21.640 --> 0:23:25.199 and you know, in other big cases, you know, like 0:23:25.280 --> 0:23:28.800 Guantanamo or healthcare or the like, there are those cecuary 0:23:28.880 --> 0:23:32.120 petitions filed by the government almost immediately. So we will 0:23:32.119 --> 0:23:35.920 see what the government does here. But certainly it's possible 0:23:35.960 --> 0:23:39.040 that they file soon, in which case the Supreme Court 0:23:39.040 --> 0:23:41.000 could give us guidance as to whether they're going to 0:23:41.040 --> 0:23:43.439 hear the case in a matter of a couple of weeks. 0:23:44.040 --> 0:23:47.480 So let's say that happens and the case is heard 0:23:48.560 --> 0:23:50.760 end of September. How soon do we get a decision? 0:23:51.280 --> 0:23:52.840 Yeah, I do think they'd hear the case in the 0:23:52.920 --> 0:23:55.560 end of September, because there's time for briefing, for writing 0:23:55.560 --> 0:23:58.160 the legal papers, and also for friends of the court 0:23:58.240 --> 0:24:01.280 to weigh in and write their own legal papers. So 0:24:01.320 --> 0:24:04.919 I think realistically we'd be talking about a court hearing 0:24:05.000 --> 0:24:08.560 and probably earliest November December, and you know, maybe as 0:24:08.640 --> 0:24:11.960 late as February or March something like that. So it's 0:24:12.000 --> 0:24:13.960 going to take a little while, and it should take 0:24:13.960 --> 0:24:17.320 a little while. Bary. These are really important momentous questions, 0:24:17.760 --> 0:24:21.280 and you know, not just momentus for right now, but 0:24:21.400 --> 0:24:25.160 momentous for American history and the role of the president, 0:24:25.240 --> 0:24:28.600 because what the court says here will govern you know, 0:24:28.680 --> 0:24:31.040 maybe just the case at hand, but it may govern 0:24:31.119 --> 0:24:33.240 other things as well. And so I think the court 0:24:33.320 --> 0:24:36.280 is going to want to proceed with some caution and 0:24:36.520 --> 0:24:39.919 have time for adequate briefing from the parties. That's my gun. 0:24:40.680 --> 0:24:44.879 So what are the state of tariffs presently? The plaintiffs 0:24:44.880 --> 0:24:48.560 in the original case had said, Hey, there's only so 0:24:48.720 --> 0:24:51.800 long we could stay in business with these tariffs, and 0:24:51.880 --> 0:24:55.280 we want a decision as rapidly as possible since they 0:24:55.280 --> 0:25:00.880 were found illegal by the appeals court. Do you have tariffs? 0:25:00.880 --> 0:25:03.280 Do we not have tariffs? What is going on? 0:25:03.680 --> 0:25:06.040 So what the Federal Circuit did is it kind of 0:25:06.080 --> 0:25:09.639 split the baby. It said that the terrorifts will be on. 0:25:10.040 --> 0:25:13.120 The terifts will be permitted, but only for forty five 0:25:13.240 --> 0:25:17.159 days while the government goes and government may go and 0:25:17.160 --> 0:25:19.439 ask the US Supreme Court to hear the case, and 0:25:19.480 --> 0:25:21.760 if they don't hear the case, then the tariffs will 0:25:21.800 --> 0:25:24.119 be declared illegal and unconstitutional and void. 0:25:24.320 --> 0:25:27.199 What are the odds that the Supreme Court chooses to 0:25:27.240 --> 0:25:28.119 not hear the case. 0:25:29.440 --> 0:25:31.600 I'm not going to predict what the Supreme Court is 0:25:31.640 --> 0:25:34.280 going to do. That's just you know, that's that's there. 0:25:34.520 --> 0:25:37.320 I have to leave that for them, and I'm just 0:25:37.400 --> 0:25:39.760 an observer on the outside. But I did want to 0:25:39.760 --> 0:25:42.200 say that what happened with the Federal Circuit did by 0:25:42.400 --> 0:25:46.240 saying forty five days, is it cut the government's time 0:25:46.320 --> 0:25:48.800 and half to file a cerciar I petition. Normally they 0:25:48.840 --> 0:25:51.480 have ninety days to do so. And what the court 0:25:51.560 --> 0:25:54.800 here said is basically, Nope, this is too important. You've 0:25:54.800 --> 0:25:56.760 got to if you want to hear have the Supreme 0:25:56.800 --> 0:25:59.040 Court hear the case, then you've got to do it 0:25:59.080 --> 0:26:01.680 in the next forty five days, otherwise these tariffs will 0:26:01.680 --> 0:26:02.720 be declared illegal. 0:26:03.600 --> 0:26:07.200 So there seems to be a judicial recognition of exactly 0:26:07.240 --> 0:26:12.000 how pressing this is. The Liberation Day was April second. 0:26:13.200 --> 0:26:16.320 The lower court case I think was filed April fourteenth, 0:26:16.800 --> 0:26:19.400 and then there was the decision in May was heard 0:26:19.440 --> 0:26:24.240 pretty rapidly. The on Bank case was heard in July 0:26:24.600 --> 0:26:27.480 of July thirty first, I believe, right, and then a 0:26:27.520 --> 0:26:29.920 month later we just about a month later, we get 0:26:30.480 --> 0:26:34.440 the decision. So it seems like, you know, I traditionally 0:26:34.480 --> 0:26:39.879 think of corporate litigation as a game of delay, delay, delay. 0:26:40.359 --> 0:26:43.040 This really seems to be moving quite rapidly. 0:26:43.480 --> 0:26:46.920 It is moving rapidly, and that's common in presidential power 0:26:46.960 --> 0:26:50.199 cases because there's so much at stake, and so, you know, 0:26:50.240 --> 0:26:53.000 I've been hardened to work with the government attorneys, the 0:26:53.040 --> 0:26:57.080 Trump administration attorneys on a fast time schedule. I think 0:26:57.119 --> 0:27:00.399 that's been you know, beneficial to try and move this 0:27:00.480 --> 0:27:03.840 case and as ultimate resolution along. But I think, you know, 0:27:04.000 --> 0:27:07.040 I think the bottom line for what happened just on Friday, 0:27:07.119 --> 0:27:10.840 for all your viewers and listeners is the Trump tariffs 0:27:10.880 --> 0:27:14.960 were declared unconstitutional and illegal by a seven to four 0:27:15.080 --> 0:27:17.600 vote of our nation's second highest court, the US Court 0:27:17.600 --> 0:27:20.800 of Appeals for the Federal Circuit. And now the question 0:27:20.960 --> 0:27:24.040 is will the Trump administration go to the Supreme Court? 0:27:24.400 --> 0:27:26.560 And then, of course what will the Supreme Court do? 0:27:27.320 --> 0:27:29.919 And the clock is thinking they have forty five days, 0:27:29.960 --> 0:27:34.520 which by my calculation is around October fifteenth or so. 0:27:34.760 --> 0:27:35.520 Is that about right? 0:27:35.640 --> 0:27:37.760 Yeah? I think it's the fourteenth, fourteenth. 0:27:37.800 --> 0:27:41.440 Wow, all right, so six weeks ago we'll be watching 0:27:41.480 --> 0:27:46.360 this really closely. Again, Neil, congratulations on your appellate victory. 0:27:47.080 --> 0:27:49.159 If this goes up, are you going to be the 0:27:49.160 --> 0:27:51.760 one making the argument in front of the Supreme Court? 0:27:52.000 --> 0:27:54.440 No, that's all to be determined. Who knows. 0:27:56.680 --> 0:27:59.640 So that was my conversation over the Labor Day weekend, 0:28:00.080 --> 0:28:04.440 right after we found out that he and his clients 0:28:04.480 --> 0:28:07.760 had won the appeal. Now let's jump to the entire 0:28:07.840 --> 0:28:11.160 conversation that we had a week ago while the outcome 0:28:11.200 --> 0:28:13.879 of the case was still up in the air. My 0:28:14.800 --> 0:28:20.560 Master's in business conversation with a Palette attorney Neil Tatiall, 0:28:21.359 --> 0:28:25.080 let's spend a little time just talking about your background 0:28:25.080 --> 0:28:30.119 and career Dartmouth undergrad jd from Yelle. What was the 0:28:30.160 --> 0:28:31.240 original career plan. 0:28:31.880 --> 0:28:34.360 The original plan was for me to be a professor 0:28:34.400 --> 0:28:37.639 of history, and yeah, I had gone. I went to 0:28:37.720 --> 0:28:40.720 Dartmouth College. As you noted, I probably was one of 0:28:40.760 --> 0:28:42.880 the last kids admitted to Dartmouth. I was not a 0:28:42.880 --> 0:28:46.600 particularly great high school student. And I had this professor, 0:28:46.680 --> 0:28:50.600 Doug Haynes in history at Dartmouth who basically taught me 0:28:50.680 --> 0:28:53.560 to write and taught me how to think. And I 0:28:53.680 --> 0:28:56.200 was so grateful to him, and I felt like I 0:28:56.200 --> 0:28:58.960 should do that with my life as go and give 0:28:59.040 --> 0:29:01.640 back in the way that Doug had given me this 0:29:01.760 --> 0:29:04.960 incredible gift. And so in my senior year I say 0:29:04.960 --> 0:29:06.760 to Doug, I was like, you know, ask him to 0:29:06.800 --> 0:29:09.000 have lunch with me, and I say, I'd really like 0:29:09.080 --> 0:29:13.400 to be a history professor. And you know, frankly, you're 0:29:13.440 --> 0:29:15.600 the one who inspired me and I want to do this. 0:29:16.040 --> 0:29:19.520 And he thought about it and he said, honestly, Neil, 0:29:19.720 --> 0:29:22.840 I don't think you should be a history professor because 0:29:22.840 --> 0:29:25.400 it's really tough, and it's hard to get tenure, and 0:29:25.440 --> 0:29:28.080 you'll have to start in some you know, small town 0:29:28.120 --> 0:29:30.000 in the middle of nowhere. It's hard to meet a 0:29:30.000 --> 0:29:34.040 spouse and so on. He said, look, you're at that 0:29:34.080 --> 0:29:36.920 point I was a national champion debater, and he said, 0:29:37.040 --> 0:29:39.160 my advice to you is to go to law school. 0:29:39.160 --> 0:29:41.040 And in particular, he said, go to Yale Law School, 0:29:41.080 --> 0:29:43.840 which is known for creating law professors, and you can 0:29:43.880 --> 0:29:46.400 do all the same stuff you want to do. But 0:29:46.480 --> 0:29:49.360 as a law professor, where you would get paid three times, 0:29:49.640 --> 0:29:53.120 it's easier to get tenure, your life is a lot easier. 0:29:53.680 --> 0:29:55.680 So I did that. I applied to Yale Law School. 0:29:55.720 --> 0:29:58.760 I got in again, probably one of the last kids admitted. 0:30:00.360 --> 0:30:03.760 And at the law school I had these incredible professors 0:30:03.800 --> 0:30:05.840 who did the same thing that Doug Haynes did for 0:30:05.920 --> 0:30:10.720 me in history, in other areas constitutional law and criminal 0:30:10.760 --> 0:30:14.040 law and the like, and these incredible professors who taught 0:30:14.040 --> 0:30:17.080 me again how to think and how to write, and 0:30:17.160 --> 0:30:21.640 so I was committed to being a law professor. I 0:30:21.680 --> 0:30:24.560 clerked first for Guido Calibrazy, who was the dean of 0:30:24.560 --> 0:30:26.040 the ill Law School, who was put on the Court 0:30:26.040 --> 0:30:29.640 of Appeals, and then for Justice Stephen Bryer. But all 0:30:29.680 --> 0:30:31.920 through that time I knew I wanted to be a 0:30:31.960 --> 0:30:34.600 law professor. So I applied while I was clerking to teach, 0:30:34.640 --> 0:30:36.840 and at the age of I think twenty six years old, 0:30:37.160 --> 0:30:39.520 I took a job teaching at Georgetown Law and that 0:30:39.720 --> 0:30:42.640 was the plan for my life, to be a law professor, 0:30:42.680 --> 0:30:43.920 and nothing but a law professor. 0:30:43.920 --> 0:30:46.000 Do you still do any teaching these days? 0:30:46.040 --> 0:30:48.480 I do, and I love it, and in many ways 0:30:48.520 --> 0:30:52.360 it's my favorite job I've ever had. But there's a 0:30:52.400 --> 0:30:55.160 lot else going on in the world these days, and so, 0:30:56.440 --> 0:30:58.560 you know, it was a little bit by accident that 0:30:58.640 --> 0:31:00.920 I fell into this litigation and thing. Yes, I was 0:31:00.960 --> 0:31:04.080 a national champion debater, and so it was comfortable being 0:31:04.120 --> 0:31:08.200 on my feet, but I was really, you know, dominated 0:31:08.320 --> 0:31:10.880 My dominant thinking was be a law professor, write these 0:31:10.920 --> 0:31:14.600 theoretical articles that change the way people think about the law, 0:31:14.680 --> 0:31:16.480 and teach students. So that's what I thought I was 0:31:16.520 --> 0:31:21.320 going to do. And then something happened, which was we 0:31:21.360 --> 0:31:24.960 had the horrific attacks on September eleventh, and I was 0:31:25.040 --> 0:31:26.920 bumbling around trying to figure out what to do. I 0:31:26.920 --> 0:31:30.880 was teaching at Yale Law School that year, and and 0:31:31.000 --> 0:31:33.040 you know, my students and I we decided to try 0:31:33.080 --> 0:31:36.240 and help first responders get benefits and stuff, and you know, 0:31:36.280 --> 0:31:38.440 we weren't particularly good at it, but it was something. 0:31:38.960 --> 0:31:42.360 And then President Bush announced that he was going to 0:31:42.360 --> 0:31:47.560 have these military trials at Guantanamo Bay for suspected terrorists. 0:31:48.200 --> 0:31:50.240 And I looked at that. I had served in the 0:31:50.280 --> 0:31:53.480 Justice Department briefly, and we had the embassy bombings of 0:31:53.520 --> 0:31:55.760 al Qaeda at the time, and so I looked into 0:31:55.800 --> 0:31:58.800 could we have military trials? And we concluded they were 0:31:58.840 --> 0:32:02.520 obviously unconstitutioned. So I went and looked up what's President 0:32:02.560 --> 0:32:05.040 Bush doing here? What's the source of authority for this? 0:32:05.720 --> 0:32:09.360 And you know, it wasn't particularly compelling. In fact, it 0:32:09.480 --> 0:32:12.600 was really weak because the President was saying he was 0:32:12.640 --> 0:32:15.000 going to set up these trials from scratch. He's going 0:32:15.080 --> 0:32:18.280 to pick the prosecutors, pick the defense attorneys. Right. All 0:32:18.320 --> 0:32:22.240 the rules for the criminal trials defined the punishments and offenses, 0:32:22.280 --> 0:32:23.520 including the death pennel. 0:32:23.320 --> 0:32:25.480 Even handed and fair. What's your objection? Yeah? 0:32:25.600 --> 0:32:27.840 And you know, even the last lines of the executive 0:32:27.960 --> 0:32:30.880 orders said the courts have no business reviewing what I'm doing. 0:32:31.240 --> 0:32:34.120 No rid of habeas corpus. So I went into my 0:32:34.320 --> 0:32:37.040 constitutional law class and said, you guys always tease me 0:32:37.120 --> 0:32:39.600 because I think the President should have such strong powers, 0:32:39.880 --> 0:32:42.720 and nothing the president does is unconstitutional. Well, here's something 0:32:42.720 --> 0:32:46.800 that's obviously unconstitutional. And in the class was a senator. 0:32:46.840 --> 0:32:49.160 It was a staffer for Senator Lahy, who was then 0:32:49.200 --> 0:32:53.480 the chair of the Senate Judiciary Committee. And so she 0:32:53.640 --> 0:32:56.000 told him about me, and he had a hearing, and 0:32:56.080 --> 0:32:58.280 I testified and said, look, I don't know if you 0:32:58.280 --> 0:33:00.240 want to have these military trials or not, but the 0:33:00.280 --> 0:33:02.240 one thing I'm sure of is that it can't be 0:33:02.400 --> 0:33:05.080 done with the president's stroke of his pen. You need 0:33:05.120 --> 0:33:07.600 Congress to approve it. And this is of course going 0:33:07.640 --> 0:33:10.479 to be relevant as we talk about tariffs later. It's 0:33:10.520 --> 0:33:13.560 the exact same architecture over the argument. And so that's 0:33:13.600 --> 0:33:17.320 how I testified. Nobody listened. So then I go and 0:33:17.400 --> 0:33:19.640 I write a lare of your article with Lawrence Tribe, 0:33:19.640 --> 0:33:22.560 the nation's most most pre eminent constitutional. 0:33:22.080 --> 0:33:24.440 Law Lawrence Private Harvard. 0:33:24.480 --> 0:33:26.360 Yeah, exactly. And so we write this article in the 0:33:26.440 --> 0:33:29.160 Yale Law Journal. We race it to print, saying what's 0:33:29.200 --> 0:33:32.320 going on is unconstitutional. Nobody reads the article. 0:33:32.360 --> 0:33:32.760 My mom. 0:33:32.840 --> 0:33:34.840 Maybe my mom read it, but you know, I don't know. 0:33:35.920 --> 0:33:39.600 So then I said to myself, you know, you got 0:33:39.600 --> 0:33:42.160 this piece of paper, neil a law degree, you could 0:33:42.240 --> 0:33:47.360 actually sue the president, and that's what it is exactly. 0:33:47.600 --> 0:33:49.920 So that was the hard question because a bunch of 0:33:50.000 --> 0:33:53.160 different interest groups had sued on Guantanamo, but they didn't 0:33:53.200 --> 0:33:56.280 have standing, they had no reason. And so I had 0:33:56.280 --> 0:33:58.920 a friend very high up at the Pentagon who got 0:33:58.960 --> 0:34:02.120 me the email address of a Pentagon lawyer who was 0:34:02.160 --> 0:34:05.720 representing the detainees, and I basically got a letter snuck 0:34:05.760 --> 0:34:09.040 to Guantanamo and it wound up in the hands of 0:34:09.920 --> 0:34:15.160 Asama bin Laden's driver, and that became my client. And 0:34:15.239 --> 0:34:18.600 so I go from being a theoretical law professor to 0:34:18.920 --> 0:34:22.520 like a real, like hard nosed litigator, all in the 0:34:22.560 --> 0:34:26.040 span of a few months. I filed the case. Nobody 0:34:26.040 --> 0:34:26.799 thinks we're going to win. 0:34:26.960 --> 0:34:28.680 How far are you from law school now? 0:34:28.800 --> 0:34:30.440 Yeah, I'm like six years out. 0:34:30.320 --> 0:34:31.920 So still relatively green. 0:34:32.120 --> 0:34:34.839 Yeah, very green, and never filed a lawsuit, you know. 0:34:34.960 --> 0:34:36.680 And so and by the way, I don't have any 0:34:36.760 --> 0:34:40.239 help except four law students who are helping me. I 0:34:40.320 --> 0:34:42.680 tried with law firms and initially I couldn't get them, 0:34:42.719 --> 0:34:46.239 but then ultimately Perkins Cooy, a Seattle firm, decided to 0:34:46.280 --> 0:34:49.160 help me, and that was phenomenal. So we filed this thing. 0:34:49.239 --> 0:34:52.120 Nobody thinks we're going to win, and we win it 0:34:52.120 --> 0:34:54.480 in the trial court. We lose it in the Court 0:34:54.560 --> 0:34:57.000 of Appeals with a guy named John Roberts on the 0:34:57.040 --> 0:35:00.920 descit panel. Three days later, he's nominated the Supreme Court 0:35:01.040 --> 0:35:03.400 and then to the Chief Justiceship. So I have to 0:35:03.440 --> 0:35:07.040 ask the Supreme Court to hear this Guantanamo case. It's 0:35:07.080 --> 0:35:10.040 the most important case their new Chief Justice has ever decided. 0:35:11.120 --> 0:35:13.000 And I'm going to say, I'm trying to tell the 0:35:13.040 --> 0:35:16.760 Supreme Court the Chief Justice is wrong about this. Nobody 0:35:16.760 --> 0:35:19.160 thinks we're going to win. It's my first Supreme Court argument. 0:35:19.480 --> 0:35:22.960 I'm arguing against President Bush's legendary solicitor general. It's his 0:35:23.040 --> 0:35:26.879 thirty fifth argument. I work my tail off and we win, 0:35:27.200 --> 0:35:30.480 and then my life changes, and then companies want to 0:35:30.560 --> 0:35:33.080 hire me, and I meet a young senator named Barack 0:35:33.120 --> 0:35:35.840 Obama who heard me interviewed on an interview just like 0:35:35.880 --> 0:35:39.560 this one, and he calls me into the Senate and says, 0:35:39.719 --> 0:35:41.839 you know, ask me to advise him on some things 0:35:41.880 --> 0:35:45.200 on Guantanamo, and tells me he's thinking of running for president, 0:35:45.360 --> 0:35:49.440 And then started working with him and then my life changes. 0:35:49.520 --> 0:35:52.520 Mass. Wow, that's amazing. You know. I want to talk 0:35:52.560 --> 0:35:55.480 about a couple of the other cases that you argued. 0:35:56.920 --> 0:36:01.800 One was More versus Harper, which former judge Michael Luddick 0:36:01.960 --> 0:36:07.359 called the most important case for American democracy ever. Tell 0:36:07.440 --> 0:36:08.280 us about that, kiss. 0:36:08.360 --> 0:36:10.160 Yeah, so that's a pretty recent one. I already it, 0:36:10.200 --> 0:36:13.160 I think about three years ago, and it involved something 0:36:13.200 --> 0:36:16.400 called the independent state legislature theory, which at that point 0:36:16.440 --> 0:36:20.000 was the greatest threat to democracy. I think when when 0:36:20.080 --> 0:36:23.279 Judge Ludig was writing those remarks, We've now had some 0:36:23.360 --> 0:36:26.560 things which you know are arguably worse. But it was 0:36:26.600 --> 0:36:28.560 a significant one because if you think back to the 0:36:28.600 --> 0:36:32.800 twenty twenty election, one of the things that President Trump 0:36:32.880 --> 0:36:36.560 tried to do then was to say that state legislatures 0:36:36.680 --> 0:36:39.799 can control elections, and you can even throw out the 0:36:39.880 --> 0:36:44.880 popular vote and just have state legislatures decide where the 0:36:44.920 --> 0:36:49.280 electoral votes will go to which candidate. And this became 0:36:49.640 --> 0:36:52.319 part of the rnc's playbook, and they invested heavily in 0:36:52.360 --> 0:36:56.920 state legislatures to try and develop, excuse me, this theory. 0:36:57.600 --> 0:37:02.279 So we challenge that again, this is one in which 0:37:02.360 --> 0:37:06.759 nobody thought we could win because if the Republicans won, 0:37:06.960 --> 0:37:11.960 they would entrench control over presidential elections for decades probably, 0:37:12.360 --> 0:37:14.680 And a lot of people think, oh, this Supreme Court, 0:37:14.680 --> 0:37:18.680 they're appointed by Republicans, they're very conservative, they're just going 0:37:18.760 --> 0:37:22.080 to do the Republican party's bidding. And I looked at 0:37:22.120 --> 0:37:23.879 it and I said, I don't think that's right. I mean, 0:37:23.880 --> 0:37:26.520 this is a court that does have fidelity to the 0:37:26.560 --> 0:37:30.520 original understanding of the Constitution. And I thought, if we 0:37:30.560 --> 0:37:32.319 could make the argument in that way, and this is 0:37:32.320 --> 0:37:34.680 what my scholarship is all about, the original understanding of 0:37:34.680 --> 0:37:38.200 the Constitution, I said, I thought we could win. And 0:37:38.880 --> 0:37:43.000 so that's what I developed as the strategy. And indeed 0:37:43.200 --> 0:37:46.160 I knew that Justice Thomas, Clarence Thomas would ask the 0:37:46.200 --> 0:37:49.160 first question at oral argument that's been happening now for 0:37:49.200 --> 0:37:50.720 the last few years. 0:37:50.760 --> 0:37:53.680 Just out a habit or like, how does that well. 0:37:53.719 --> 0:37:57.760 He's one of the more senior justices, and during COVID, 0:37:58.560 --> 0:38:01.640 when we had to argue cases on speaker phones and 0:38:01.680 --> 0:38:04.239 we couldn't see each other, it went in order of seniority, 0:38:04.239 --> 0:38:08.280 and so Justice Thomas was right at the top. After COVID, 0:38:08.719 --> 0:38:12.000 that's tradition continued in what Justice Thomas would ask the 0:38:12.040 --> 0:38:14.360 first question. And so I've been thinking, how do I 0:38:14.560 --> 0:38:18.239 use that knowledge to my advantage? Justice Thomas going to 0:38:18.239 --> 0:38:19.840 ask the first question. And what I did was, I 0:38:19.920 --> 0:38:22.760 said to myself, Okay, I can develop a set play. 0:38:23.320 --> 0:38:25.240 Justice Thomas is going to ask me a question. Doesn't 0:38:25.280 --> 0:38:27.560 matter what the question is. I'm then going to say, 0:38:27.560 --> 0:38:29.279 and this is what I do. Just Thomas asked me 0:38:29.320 --> 0:38:31.239 a question at the argument. I don't remember what the 0:38:31.320 --> 0:38:34.440 question was. I answer it, and then I say, Justice Thomas, 0:38:34.480 --> 0:38:37.640 may I say, in nearly three decades of arguing before you, 0:38:38.000 --> 0:38:40.080 I've been waiting for this case because it speaks to 0:38:40.160 --> 0:38:44.600 your method of constitutional interpretation, the original understanding, And here 0:38:44.600 --> 0:38:46.640 are the four things you need to know about more 0:38:46.719 --> 0:38:50.200 versus Harper in the original understanding of the Constitution. And 0:38:50.239 --> 0:38:52.880 I get to talk about Madison and Hamilton and Jefferson 0:38:52.920 --> 0:38:56.239 and so on, and it totally changes the dynamic in 0:38:56.280 --> 0:38:59.919 the courtroom, and sure enough, we win six to three. 0:39:00.880 --> 0:39:04.520 This case in the Republican theory is thrown out. I 0:39:04.520 --> 0:39:07.000 didn't win Justice Thomas's vote, but I won a bunch 0:39:07.040 --> 0:39:07.680 of others. 0:39:07.920 --> 0:39:12.520 Huh, that's amazing. Let's quickly talk about the Voting Rights 0:39:12.560 --> 0:39:16.040 Act that you successfully defend it instead of trying to 0:39:16.040 --> 0:39:20.080 overturn it. Tell us how different is to be playing 0:39:20.200 --> 0:39:24.520 defense or is it not? You're just arguing constitutional law 0:39:24.640 --> 0:39:27.480 and this is the outcome that should come about. 0:39:28.080 --> 0:39:30.200 It is different. But I would say even back then, 0:39:30.239 --> 0:39:32.719 I felt like I was playing defense. So this is 0:39:32.719 --> 0:39:36.440 a case I argued in maybe twenty ten. The Voting 0:39:36.480 --> 0:39:39.720 Rights Active and passed in nineteen sixty five. It literally 0:39:39.760 --> 0:39:41.680 has the blood of patriots on it. It is what 0:39:41.800 --> 0:39:45.399 Selma and the Bridge Potatos Bridge is all about. And 0:39:46.360 --> 0:39:50.399 so you know, in the case, basically it was right 0:39:50.480 --> 0:39:54.759 after President Obama had been elected and Southern States said, look, 0:39:54.760 --> 0:39:56.920 we don't need the Voting Rights Act anymore. Look you 0:39:56.920 --> 0:39:59.719 have an African American president, Like that's proof that we 0:39:59.760 --> 0:40:04.839 don't need it. And I stood up in court and said, no, 0:40:04.920 --> 0:40:07.000 we do need it. And it's like, you know, the 0:40:07.120 --> 0:40:09.720 very fact that we've been able to have an African 0:40:09.719 --> 0:40:12.839 American president isn't alone enough to to say there isn't 0:40:12.840 --> 0:40:16.080 discrimination in voting, particularly in particular areas, you know, even 0:40:16.120 --> 0:40:20.279 if the overall national result is one thing. And the 0:40:20.320 --> 0:40:25.200 Supreme Court at that point accepted that argument. And four 0:40:25.280 --> 0:40:27.960 years later, however, in a case called Shelby County, they 0:40:28.040 --> 0:40:30.759 reversed that position and struck down that part of the 0:40:30.840 --> 0:40:33.640 Voting Rights Act. And now there's only one part of 0:40:33.640 --> 0:40:36.319 the Voting Rights Act that remains, Section two, and the 0:40:36.320 --> 0:40:39.759 Supreme Court's agreed to hear a case to challenge that 0:40:40.200 --> 0:40:43.000 this fall. And so we very well may have a 0:40:43.040 --> 0:40:46.560 world in which there is no Voting Rights Act left whatsoever, 0:40:46.640 --> 0:40:49.480 which is a very dangerous thing. And yes, I do 0:40:49.520 --> 0:40:54.000 think the Court has become more conservative over my lifetime. 0:40:54.360 --> 0:40:56.720 I mean, the Court has always been a point majority 0:40:56.760 --> 0:40:58.680 Republican appointees since things. 0:40:58.840 --> 0:41:01.600 This isn't just too hard in ship. This is an 0:41:01.840 --> 0:41:05.440 ideological tilt, not necessarily party tilts. 0:41:05.680 --> 0:41:08.640 Yeah, so I would say, you know that the presidents 0:41:08.760 --> 0:41:11.640 now of both parties are sending to the Supreme Court 0:41:11.760 --> 0:41:16.160 more sure things that you know than which the track 0:41:16.239 --> 0:41:18.719 record is really known. You know, the Republicans had this 0:41:18.840 --> 0:41:22.960 mantra no more suitors because David Sudor, nominated by Republican 0:41:23.000 --> 0:41:26.600 President Bush upheld things like abortion rights and so on. 0:41:26.920 --> 0:41:29.040 And the Democrats, I think, have had their own version 0:41:29.120 --> 0:41:32.840 of this for some time as well. And so we 0:41:32.960 --> 0:41:37.480 get we don't tend to get justices without very defined 0:41:37.520 --> 0:41:41.040 positions anymore. Like when I started arguing, Justice Kennedy was 0:41:41.080 --> 0:41:44.239 on the court and you could see Barry every time 0:41:44.320 --> 0:41:48.640 you argued. He was struggling with which is the right view? 0:41:48.719 --> 0:41:50.879 Which is the right view of the law. And he's 0:41:50.920 --> 0:41:53.359 a very smart man. It wasn't that he wasn't smart. 0:41:53.400 --> 0:41:56.239 When I say struggling, it's not that he was struggling intellectually. 0:41:56.360 --> 0:41:59.160 They were pretty even handed argument yeah, and he really. 0:41:59.000 --> 0:42:02.960 Took the arguments so seriously without caricaturing him and just 0:42:03.040 --> 0:42:05.760 tried to make the right decision. And certainly that still 0:42:05.760 --> 0:42:08.120 happens today. I don't mean to overclaim it, but I 0:42:08.160 --> 0:42:10.879 would say in particularly some of the big cases, they're 0:42:10.880 --> 0:42:13.279 coming in a bit more with their minds made up 0:42:14.280 --> 0:42:15.360 than when I first started. 0:42:15.840 --> 0:42:19.480 Really interesting. Coming up, we continue our conversation with a 0:42:19.560 --> 0:42:25.440 Pellet litigator, Neil Kadil, talking about the tariff litigation winding 0:42:25.480 --> 0:42:29.040 its way through the courts. Today. I'm Barry Ridults. You're 0:42:29.080 --> 0:42:33.719 listening to Masters in Business on Bloomberg Radio. I'm Barry Ridults. 0:42:33.880 --> 0:42:37.239 You're listening to Masters in Business on Bloomberg Radio. My 0:42:37.680 --> 0:42:41.480 extra special guest this week is Neil Kadial. He is 0:42:41.800 --> 0:42:45.400 the former Solicitor General under President Obama. He is an 0:42:45.480 --> 0:42:49.880 appellet attorney who's argued in front of the Supreme Court 0:42:50.280 --> 0:42:53.799 pretty much more than any living or at least any 0:42:53.880 --> 0:42:57.000 active attorney fifty two times something more. 0:42:57.080 --> 0:43:00.640 There are people who have more. But I'm doing okay. 0:43:01.280 --> 0:43:04.640 You're doing okay. I want to talk about the Vos 0:43:04.680 --> 0:43:10.480 Selections Trump tariff litigation that, as we're recording this right 0:43:10.520 --> 0:43:16.000 before Labor Day, continues to perplex me how little coverage 0:43:16.360 --> 0:43:22.160 this has gotten from media, and not just political media, 0:43:22.280 --> 0:43:27.600 but financial and markets and economics media, because this case 0:43:27.960 --> 0:43:33.720 has enormous potential to impact the broader economy. So first, 0:43:33.840 --> 0:43:39.719 let's start with Vos Selections and other planiffs. April fourteenth, 0:43:39.800 --> 0:43:45.080 after Liberation Day sued the President, saying you don't have 0:43:45.120 --> 0:43:49.399 the authority to issue tariffs on your own without meaning Well, 0:43:49.440 --> 0:43:52.400 these checklists which you fail to do. How did you 0:43:52.440 --> 0:43:54.600 get involved in this case? Tell us a little bit 0:43:54.640 --> 0:43:58.360 about what makes this case different than other challenges to 0:43:58.680 --> 0:43:59.840 presidential authority. 0:44:00.440 --> 0:44:04.560 So right after President Trump took office and started talking 0:44:04.600 --> 0:44:09.160 about this tariff position, I was reminded of the Guantanamo case. 0:44:09.200 --> 0:44:11.720 I just described to you earlier, because it's the exact 0:44:11.840 --> 0:44:16.840 same problem, which is, look, a president had may, motivated 0:44:16.840 --> 0:44:19.799 by any number of good reasons, has a policy that 0:44:19.840 --> 0:44:23.400 he wants to implement, and instead of going to Congress, 0:44:23.440 --> 0:44:25.280 he just does it on his own with the stroke 0:44:25.320 --> 0:44:30.200 of his pen. And our founders thought that a very 0:44:30.360 --> 0:44:35.560 dangerous proposition, particularly in core areas like tariffs, because you 0:44:35.600 --> 0:44:40.040 know every King George, of course, you know every dictator, 0:44:40.120 --> 0:44:44.200 every leader would like the power to tariff, to tax 0:44:44.360 --> 0:44:47.480 the people in any way they see fit, without limitation. 0:44:47.600 --> 0:44:50.719 And what our founder said is no Article one, section eight. 0:44:51.000 --> 0:44:54.320 They gave the power to tariff expressly to the president 0:44:54.400 --> 0:44:56.600 in a similar way to they gave the gave the 0:44:56.600 --> 0:44:59.279 power to Congress, and in the same way as they 0:44:59.280 --> 0:45:01.280 did over matter of military justice. 0:45:01.360 --> 0:45:03.719 Let me ask you a question about Article one, section eight, 0:45:03.800 --> 0:45:07.319 because it talks about Levy's duties and taxes, but it 0:45:07.440 --> 0:45:12.040 doesn't specifically say tariffs. Does the nomenclature matter or are 0:45:12.080 --> 0:45:13.359 they all the same things? Now? 0:45:13.400 --> 0:45:17.160 I mean, even the Trump administration, which just made some 0:45:17.200 --> 0:45:19.720 bizarre legal arguments in this case, even they're not making 0:45:19.719 --> 0:45:22.880 that argument. A duty is definitely understood as a tariff, 0:45:23.239 --> 0:45:26.280 and the original understanding very clear on that point. 0:45:26.320 --> 0:45:31.040 And Article one, section eight says that authority lies exclusively 0:45:31.400 --> 0:45:37.840 with Congress exactly. So that's the initial claim. I'm assuming 0:45:37.960 --> 0:45:41.600 the president is saying, well, I was given authority by 0:45:41.640 --> 0:45:47.359 Congress either through the IEPA Act, which was nineteen seventy seven, 0:45:47.440 --> 0:45:50.160 or the Trade Act of nineteen seventy four. How do 0:45:50.239 --> 0:45:54.719 you see these other legislations modifying the Constitution? 0:45:54.960 --> 0:45:57.759 So the government is certainly so the Trump administration is 0:45:57.800 --> 0:46:00.640 trying to say that in nineteen seventy seven and Congress 0:46:00.680 --> 0:46:04.920 passed this International Economic Emergency Act which gave the power 0:46:05.040 --> 0:46:07.719 to tariff. There's only one problem with that. The law 0:46:07.760 --> 0:46:10.640 doesn't say anything about tariffs in it in nineteen seventy seven, 0:46:10.920 --> 0:46:13.880 and there's nothing in the you know, history of the 0:46:13.960 --> 0:46:17.239 law to say so. No president for fifty years has 0:46:17.280 --> 0:46:20.360 ever thought that it includes the power to tariff. And 0:46:20.400 --> 0:46:23.040 then President Trump's lawyers come along and say, ah, here, 0:46:23.280 --> 0:46:28.120 that's how we're going to announce these massive tariffs. And 0:46:28.160 --> 0:46:31.800 I just think our Constitution demands more from the Congress 0:46:31.840 --> 0:46:35.239 than that simple thing. I mean, Congress can certainly tomorrow 0:46:35.920 --> 0:46:39.880 easily authorize all of President Trump's tariffs. It would you 0:46:39.880 --> 0:46:41.160 know they could just do it with an up or 0:46:41.160 --> 0:46:44.040 down vote. The fact that they haven't, the fact that 0:46:44.080 --> 0:46:46.959 the president is scared to even ask, I think, tells 0:46:47.000 --> 0:46:48.040 you all you need to know. 0:46:48.320 --> 0:46:50.439 Didn't he ask in his first term? 0:46:50.480 --> 0:46:52.440 In his first term, he asked and it was rejected 0:46:52.480 --> 0:46:53.320 by the Congress. 0:46:53.400 --> 0:46:56.239 So it seems kind of odd to say, please give 0:46:56.280 --> 0:46:59.520 me the authority to tariff. No, I can't. Okay, now 0:46:59.560 --> 0:47:01.680 I'm not even going to ask. This is like a 0:47:01.800 --> 0:47:04.760 teenage kid who sneaks out after curfew. 0:47:04.640 --> 0:47:07.120 Right, it's it's I mean, a different way of putting 0:47:07.160 --> 0:47:09.759 The point is. Look, even Donald Trump didn't believe his 0:47:09.840 --> 0:47:13.200 own AEPA argument because he went to Congress back the 0:47:13.239 --> 0:47:15.919 first time around and lost, And so then he comes 0:47:16.000 --> 0:47:18.560 up with his backup plan, which is, oh, I have 0:47:18.680 --> 0:47:21.000 the power anyway. Then I have no idea what he 0:47:21.040 --> 0:47:22.960 was doing in the first term by going and asking 0:47:23.000 --> 0:47:24.520 Congress for this power if he had it in the 0:47:24.520 --> 0:47:28.120 first place. And it's such a dangerous thing because you know, 0:47:28.200 --> 0:47:32.040 if this president does it for tariffs because he sees 0:47:32.080 --> 0:47:34.720 trade imbalances, another president, and this is how I started 0:47:34.719 --> 0:47:37.960 my oral argument to the Federal Circuit. Another president to 0:47:38.000 --> 0:47:40.920 the Court of appeals. Another president could say, you know, 0:47:41.040 --> 0:47:45.960 climate's a real emergency, and I am going to impose 0:47:45.960 --> 0:47:49.440 one hundred percent tariffs or one thousand percent tariffs on 0:47:49.600 --> 0:47:53.560 any goods from an oil producing country. You know, that 0:47:53.840 --> 0:47:57.280 whole thing is something that Congress really needs to be deciding, 0:47:57.520 --> 0:47:58.879 not the president on his own. 0:47:59.120 --> 0:48:02.400 So before we get the appellate litigation, let's start with 0:48:02.520 --> 0:48:06.400 the trial litigation. You're representing a group of small businesses 0:48:06.400 --> 0:48:09.440 that are all saying tariffs are going to hurt their business. 0:48:09.960 --> 0:48:14.760 Tell us what the this was the Court of Trade, 0:48:14.760 --> 0:48:17.360 the International Court of Trade in DC. Tell us a 0:48:17.400 --> 0:48:19.480 little bit about that litigation. How did that proceed? 0:48:19.600 --> 0:48:21.480 Yeah, and just to be clear, I wasn't involved at 0:48:21.520 --> 0:48:23.600 that stage. I mean, this happens a lot with me. 0:48:23.760 --> 0:48:26.839 Is someone brings the case in the trial court, they 0:48:26.920 --> 0:48:30.279 win or lose, and then they want a firepower for 0:48:30.360 --> 0:48:32.480 the appeal stage and the Supreme Court. So that's what 0:48:32.520 --> 0:48:33.000 happened to you. 0:48:33.000 --> 0:48:35.799 Sure, So they won at the trial level, and then 0:48:35.840 --> 0:48:39.240 there was a stay on the enforcement at the trial 0:48:39.320 --> 0:48:43.320 level pending appeal. Right, So that's where you get involved 0:48:43.360 --> 0:48:45.600 in the case. How did this go up to the 0:48:45.719 --> 0:48:49.480 DC Court of Appeal? So rapidly, and why was it 0:48:49.520 --> 0:48:53.759 a full on bank all eleven justices hearing the case 0:48:53.800 --> 0:48:54.160 at once. 0:48:54.320 --> 0:48:56.800 Yeah, So what you have is you have a trial 0:48:56.840 --> 0:48:59.359 court decision from the Court of International Trade that says 0:48:59.360 --> 0:49:04.160 President tree Trump's tariffs are illegal. The court then pauses 0:49:04.280 --> 0:49:07.440 that ruling so that it could be decided by the 0:49:07.480 --> 0:49:10.040 appeals Court and perhaps the US Supreme Court. And at 0:49:10.040 --> 0:49:14.840 that point I get involved. The Federal Court of Appeals says, 0:49:14.920 --> 0:49:17.600 on their own, this case is so important that we're 0:49:17.600 --> 0:49:20.120 going to have all eleven of our judges here the case, 0:49:20.239 --> 0:49:22.640 not just three judges, which is normally the rule. 0:49:22.840 --> 0:49:24.960 How often do you get a full on bank hearing 0:49:25.000 --> 0:49:25.200 like that? 0:49:25.680 --> 0:49:27.960 Very rarely, I mean the Federal Circuit, which is this 0:49:28.000 --> 0:49:30.759 Court of Appeals, maybe once a year, maybe once every 0:49:30.760 --> 0:49:32.840 couple of years. So it's a very rare thing, and 0:49:32.880 --> 0:49:35.319 I think it does demonstrate the gravity of this. And 0:49:35.360 --> 0:49:37.759 to circle back to something at the start that you 0:49:37.840 --> 0:49:40.800 talked about about the kind of degree of attention around 0:49:40.800 --> 0:49:42.759 this case, I guess I want to push back a 0:49:42.760 --> 0:49:44.680 little because I do think there's been a lot of 0:49:44.840 --> 0:49:48.360 media attention around the case, a lot of jurisprudential attention 0:49:48.440 --> 0:49:50.560 around the case, but perhaps the most important a lot 0:49:50.600 --> 0:49:53.840 of business community interest. I mean, I think every major 0:49:53.880 --> 0:49:57.440 hedge fund called me while this case was pending in 0:49:57.560 --> 0:50:00.279 the trial court to ask for my views, and they 0:50:00.280 --> 0:50:03.279 wanted to make financial decisions on the basis of it. 0:50:03.520 --> 0:50:05.919 I obviously can't answer those questions in quite the same 0:50:05.920 --> 0:50:08.799 way now that I'm involved in the case. But I 0:50:08.840 --> 0:50:12.400 do think that for the markets, this is a case 0:50:12.600 --> 0:50:17.279 of enormous, enormous significance, and what happens at the Court 0:50:17.320 --> 0:50:19.799 of Appeals and what perhaps happens should the case go 0:50:19.880 --> 0:50:22.200 to the Supreme Court is something that a lot of 0:50:22.200 --> 0:50:23.200 people are thinking about. 0:50:23.520 --> 0:50:27.080 So let's walk before we run. So you argue the 0:50:27.120 --> 0:50:32.080 case on bank in front of the entire all lemonjustices 0:50:32.160 --> 0:50:35.160 of the DC Court of Appeals. Tell us what that 0:50:35.400 --> 0:50:37.239 hearing was, like, how did it go? 0:50:37.680 --> 0:50:40.800 Yeah, So, I mean, I'm obviously constrained. It's a pending case, 0:50:40.880 --> 0:50:43.680 so I want to just stick to the public record. 0:50:43.880 --> 0:50:46.080 I'm not going to try and litigate the case on 0:50:46.120 --> 0:50:49.400 your podcast or anything. I love your podcast, but I 0:50:49.480 --> 0:50:52.040 have to be very mindful of those kinds of things. 0:50:52.800 --> 0:50:55.759 But you know, in a big case like this, I 0:50:55.800 --> 0:50:59.600 think you're always looking I'm always looking to try and 0:50:59.680 --> 0:51:04.560 make sure the judges understand the implications of the government's argument, 0:51:04.680 --> 0:51:08.719 because anything can look reasonable when a president does it 0:51:08.800 --> 0:51:11.960 in the you know, for the immediate situation. But the 0:51:12.040 --> 0:51:15.400 question and constitutional law is, if the president has this 0:51:15.520 --> 0:51:18.280 power here, what's to stop him from doing the next. 0:51:18.160 --> 0:51:20.759 Thing and the next thing in the next slope. 0:51:20.840 --> 0:51:24.360 Yeah, exactly, And that's something our founders the whole architecture 0:51:24.360 --> 0:51:27.319 of our government, and Madison really talks about this in 0:51:27.360 --> 0:51:30.600 Federalists ten fifty one. The whole architecture of our government 0:51:30.640 --> 0:51:33.480 is to try and prevent that slippery slope through all 0:51:33.480 --> 0:51:36.920 sorts of different breaks. And the obviously the most important 0:51:36.920 --> 0:51:39.480 break to our founders was the role of the Congress. 0:51:39.800 --> 0:51:43.319 That the Congress has to affirmatively authorize things before a 0:51:43.360 --> 0:51:44.439 president can do them. 0:51:44.600 --> 0:51:49.080 So if the president can levy tariff's taxes duties on 0:51:49.440 --> 0:51:54.560 his own without congress, what can he do exactly? 0:51:54.760 --> 0:51:57.000 And so, you know, you asked me, how did the 0:51:57.120 --> 0:52:00.759 argument go? I felt like the judges were circling in 0:52:00.800 --> 0:52:03.480 on that precise question, the one you just asked me. 0:52:04.520 --> 0:52:09.760 And you know it's available for anyone to listen to exactly, 0:52:09.840 --> 0:52:13.200 So you know, listeners can decide for themselves. But I 0:52:13.239 --> 0:52:16.840 do think the government, you know, was was on the 0:52:16.920 --> 0:52:20.880 defense in response to those questions. And you know, I, 0:52:21.080 --> 0:52:22.840 you know, I have some sympathy for that. I was 0:52:22.920 --> 0:52:25.560 the top lawyer for the federal government for a while, 0:52:25.960 --> 0:52:29.440 and you know, sometimes governments, you know, have positions that 0:52:29.480 --> 0:52:32.560 are tough to defend. This one I felt was particularly 0:52:32.600 --> 0:52:33.320 tough to defend. 0:52:33.400 --> 0:52:36.879 So what given what we've talked about with Article one, 0:52:36.960 --> 0:52:41.000 Section eight and NIPA, what on earth was the government's 0:52:41.440 --> 0:52:44.680 case defending the Tara faction. 0:52:44.880 --> 0:52:47.239 Most of the government's case was like a fate of 0:52:47.320 --> 0:52:50.800 complete which was, Oh, it's already done, the President's done it, 0:52:50.800 --> 0:52:54.359 it's had all these successes. If you undo it, it's 0:52:54.400 --> 0:52:57.280 going in declared illegal. Then it's going to wreck the economy. 0:52:57.480 --> 0:53:00.959 I am not aware of many having gone to law 0:53:01.000 --> 0:53:03.560 school and passed the bar. I don't recall a lot 0:53:03.560 --> 0:53:08.239 of constitutional cases where the judges shrugged and said, well, 0:53:08.280 --> 0:53:10.759 if you did it already, who are we to undo that? 0:53:11.080 --> 0:53:11.600 Exactly? 0:53:12.200 --> 0:53:15.200 It seems like a kind of bizarre argument to make. 0:53:15.480 --> 0:53:17.960 It is, but it is one that the governments have made. 0:53:18.080 --> 0:53:20.600 Prior governments have made it. President Truman made it when 0:53:20.600 --> 0:53:23.879 he sees the steel mills in nineteen fifty two, and 0:53:24.000 --> 0:53:26.480 that went up to the Supreme Court. Solicitor General made 0:53:26.520 --> 0:53:29.200 a version of this argument, and of course there we 0:53:29.200 --> 0:53:31.479 were in a war and we needed the steal. And 0:53:31.840 --> 0:53:34.120 so the Solicitor General said to the Supreme Court, look, 0:53:34.160 --> 0:53:37.400 you will d it gravely undermine our war fighting powers 0:53:37.680 --> 0:53:40.400 in the midst of a war if you reverse the 0:53:40.440 --> 0:53:43.879 president's decision to seize the steel mills. Supreme Court said, 0:53:44.040 --> 0:53:47.200 that's not a good enough reason. In our constitutional system, 0:53:47.280 --> 0:53:51.280 they say, it's Congress that makes the laws. And again, 0:53:51.560 --> 0:53:55.239 similar architecture to the guantanam argument. Similar architecture here in 0:53:55.239 --> 0:53:56.000 the tariff's case. 0:53:56.200 --> 0:54:00.759 Huh, that's really fascinating. So the government's substance equently did 0:54:00.800 --> 0:54:05.160 a filing pretty quickly after the hearing, asking for a 0:54:05.320 --> 0:54:11.720 stay if they lose, pending Supreme Court review. That seems 0:54:11.800 --> 0:54:14.279 kind of unusual. It's almost as if, hey, we didn't 0:54:14.320 --> 0:54:16.759 do a great job and we think we're going to lose, 0:54:16.800 --> 0:54:20.200 but we don't want you to overturn this. How often 0:54:20.239 --> 0:54:25.320 does that happen this quickly after an appeal is argued. 0:54:25.400 --> 0:54:28.000 I mean, it was an extraordinary letter. I don't really 0:54:28.000 --> 0:54:30.080 want to say more than that people can listen to 0:54:30.560 --> 0:54:32.880 people can read the letter for themselves. It was filed 0:54:32.920 --> 0:54:34.839 in the court. It's a two page letter, and then 0:54:34.880 --> 0:54:37.000 we filed a quick response to it. But it is 0:54:38.160 --> 0:54:39.879 it is an extraordinary. 0:54:39.360 --> 0:54:42.800 Letter, so typically get a this was argued in July 0:54:42.920 --> 0:54:46.040 twenty twenty five. It could take six months before we 0:54:46.080 --> 0:54:49.560 get a decision. Typically, my assumption is a full on 0:54:49.760 --> 0:54:54.440 bank hearing. Recognizing this is a really important case, you 0:54:54.719 --> 0:54:58.839 tend to get a decision faster than you would otherwise. 0:54:59.320 --> 0:55:03.480 I'm assuming that this can drop sometime in September October. 0:55:03.520 --> 0:55:05.839 But this isn't a February twenty twenty six. 0:55:06.160 --> 0:55:08.520 I think nobody wants it to be something that's going 0:55:08.560 --> 0:55:11.040 to go long, and courts of appeals generally do take 0:55:11.080 --> 0:55:13.520 a while for decisions. The average time is about six 0:55:13.560 --> 0:55:20.240 months in the federal system. Here, I think the judges 0:55:20.320 --> 0:55:22.880 do want to try and decide this quickly. That was 0:55:23.000 --> 0:55:25.080 indicated to us by the fact that they gave us 0:55:25.160 --> 0:55:27.879 very little time to write our briefs. You know, they 0:55:27.920 --> 0:55:30.040 wanted us to go straight to argument. 0:55:29.760 --> 0:55:33.040 And really, what's that timeline? Normally they like to prep. 0:55:32.920 --> 0:55:36.279 It was truncated by about half the time, and then 0:55:36.400 --> 0:55:39.560 oral arguments set for right away, right after the briefs 0:55:39.560 --> 0:55:40.040 came in. 0:55:40.080 --> 0:55:43.239 So no falling around. We're fast tracking this exactly. This 0:55:43.360 --> 0:55:46.640 isn't a Christmas decision. We're gonna we're gonna get this 0:55:46.760 --> 0:55:48.160 out exactly left Lay. 0:55:48.280 --> 0:55:50.839 I think the court did exactly the right and responsible 0:55:50.880 --> 0:55:52.759 thing there, which is us as lawyers. We can get 0:55:52.760 --> 0:55:55.440 the briefs done, we can get prepared for argument, so 0:55:55.640 --> 0:55:58.480 you know, so do it more quickly because there are 0:55:58.600 --> 0:56:01.359 eleven judges and they do have to reach some sort 0:56:01.360 --> 0:56:04.239 of majority view. It is going to take some time, 0:56:04.280 --> 0:56:07.160 in which you know, eleven people to decide. Anything takes time, 0:56:07.400 --> 0:56:09.239 particularly something with this gravity and. 0:56:09.200 --> 0:56:13.120 Wait, quite fascinating. Coming up, we continue our conversation with 0:56:13.239 --> 0:56:17.040 Neil Kadial, who is the planeff's attorney on the appeal 0:56:17.320 --> 0:56:21.120 for the Vos selections versus Trump, which is seeking to 0:56:21.239 --> 0:56:25.719 overturn all of the tariffs, discussing where the case can 0:56:25.760 --> 0:56:29.240 go from here. I'm Barry Ridolts. You're listening to Masters 0:56:29.239 --> 0:56:33.000 in Business on Bloomberg Radio. I'm Barry Redults. You're listening 0:56:33.040 --> 0:56:37.240 to Masters in Business on Bloomberg Radio. My Extra Special 0:56:37.280 --> 0:56:42.239 guest today is litigation Appellet attorney Neil Kadial. He has 0:56:42.280 --> 0:56:47.840 a tremendous CV former Solicitor General, dozens and dozens of 0:56:47.880 --> 0:56:50.960 cases argued in front of the Supreme Court, and the 0:56:51.000 --> 0:56:55.760 most recent argument he did was the Vos Selections versus Trump, 0:56:56.320 --> 0:57:00.919 arguing that all of these tariffs are illegal. So let's 0:57:00.920 --> 0:57:04.279 pick up where we left off. The DC Court of 0:57:04.360 --> 0:57:08.160 Appeals agrees to hear the case. They expedite this. You 0:57:08.160 --> 0:57:10.480 don't have a lot of time to prep for the 0:57:10.600 --> 0:57:13.080 moving papers, You don't have a lot of time to 0:57:13.200 --> 0:57:17.000 prep for the oral argument. What is that argument like 0:57:17.320 --> 0:57:19.360 when you're in front of the court. How long does 0:57:19.400 --> 0:57:22.440 it go for? I know you've done this a million times. 0:57:22.440 --> 0:57:24.760 You still get those butterflies in your stomach before you 0:57:24.800 --> 0:57:25.280 get up there. 0:57:25.400 --> 0:57:27.960 Always get the butterflies, And you know it helps me 0:57:28.040 --> 0:57:30.240 be a better lawyer. In the minute that I don't 0:57:30.280 --> 0:57:32.360 have those butterflies, I'm going to go do something else. 0:57:33.120 --> 0:57:35.200 John Roberts told me that I used to run his 0:57:35.320 --> 0:57:39.560 practice at his law firm practice, and he said, you know, 0:57:39.680 --> 0:57:42.800 every time I go up there, I got nervous. And 0:57:43.560 --> 0:57:47.400 he was an extraordinary advocate. And so I've come to 0:57:47.440 --> 0:57:51.120 actually appreciate the butterflies as opposed to trying to just 0:57:51.160 --> 0:57:55.800 push them away. My practice schedule is the same for 0:57:55.880 --> 0:57:59.000 any kind of big case, which is, I take notes 0:57:59.040 --> 0:58:02.960 on the briefs that have been filed, and then I relentlessly, 0:58:03.120 --> 0:58:06.240 relentlessly practice the argument in front of people both new 0:58:06.240 --> 0:58:09.000 to the case like the judges will be, and people 0:58:09.120 --> 0:58:12.200 are experts on the case, and they are throwing questions 0:58:12.240 --> 0:58:15.240 at me one after another for hours. And I do 0:58:15.280 --> 0:58:19.880 this sometimes, you know, as many as six, eight, ten times. 0:58:20.480 --> 0:58:23.240 In the tirest case, I did it eight times, practicing 0:58:23.600 --> 0:58:27.480 the argument in front of all these people. And I 0:58:27.560 --> 0:58:30.520 then go and I listen to the arguments these practice 0:58:30.520 --> 0:58:33.600 sessions on MP three, I put it on you know, 0:58:33.640 --> 0:58:36.240 something that I can put on my iPhone and then 0:58:36.280 --> 0:58:40.120 I'll run to it or something like that. And so 0:58:40.200 --> 0:58:43.400 I'm just thinking to myself, A. Can I answer the 0:58:43.440 --> 0:58:48.120 question better? B? Can I answer it more quickly? C? 0:58:49.280 --> 0:58:52.680 Can I answer the question in a way that doesn't 0:58:52.760 --> 0:58:55.240 invite a follow up question that I really don't want 0:58:55.320 --> 0:58:58.280 to ask? And then D the most dark arts part 0:58:58.280 --> 0:59:00.760 of it. Can I answer the quest question in a 0:59:00.800 --> 0:59:03.880 way that leads them to ask the next question, which 0:59:03.920 --> 0:59:04.880 is one I do want. 0:59:05.320 --> 0:59:09.480 So there's a lot of tactical thinking and strategy beyond 0:59:09.720 --> 0:59:12.720 just legal knowledge and rehearsal. 0:59:12.400 --> 0:59:14.520 One hundred percent. Like I mean, you know, in a 0:59:14.560 --> 0:59:17.360 big case, yes, you got to know the law, you 0:59:17.440 --> 0:59:20.280 got to know the history, you got to have all 0:59:20.320 --> 0:59:22.400 of the you know, finer points, you. 0:59:22.320 --> 0:59:25.160 Know, memorized table mistakes though, but at the end. 0:59:25.000 --> 0:59:27.840 Of it, in the big cases, what really matters is 0:59:28.520 --> 0:59:31.840 can you pivot the conversation in the way you want? 0:59:32.560 --> 0:59:36.160 Can you show maximum credibility with the court? Can you 0:59:36.240 --> 0:59:39.160 really be a true listener to the questions and not 0:59:39.400 --> 0:59:42.680 answer the question that you want asked, because they may 0:59:42.680 --> 0:59:44.760 be asking you a different one and you've got to 0:59:44.800 --> 0:59:49.880 answer that one. And so, uh, it is a really 0:59:49.920 --> 0:59:52.520 specialized skill, which is why you know, I tend to 0:59:52.560 --> 0:59:54.720 be brought in for these cases which, like you know, 0:59:54.800 --> 0:59:56.560 I don't know how to do a trial. In fact, 0:59:56.640 --> 0:59:59.480 I was special prosecutor in the George Floyd murder, and 0:59:59.680 --> 1:00:03.120 but I handled all the appeal stuff because I mean, 1:00:03.440 --> 1:00:05.560 you know, I have no idea how to cross examine 1:00:05.560 --> 1:00:08.960 a witness or something, and so you know, I do 1:00:09.080 --> 1:00:12.000 one thing, hopefully I do it kind of well, and 1:00:12.120 --> 1:00:15.280 but the practice sessions are really I think the secret sauce. 1:00:15.520 --> 1:00:19.120 Kind of well, kind of well, how long did the 1:00:19.240 --> 1:00:20.520 oral arguments last? How? 1:00:20.920 --> 1:00:22.520 I think there are a couple hours long. 1:00:22.760 --> 1:00:24.840 That's what it looked like when I saw it on YouTube. 1:00:24.880 --> 1:00:26.400 And I'm like, I don't know how much of this 1:00:26.680 --> 1:00:29.120 because I listened to a good chunk of it and 1:00:29.880 --> 1:00:32.400 kept starting and stopping, and I'm like, this feels like 1:00:33.040 --> 1:00:37.120 typical appellate arguments are not hours long, right. 1:00:37.080 --> 1:00:39.600 You know, set for twenty minutes, except for twenty three 1:00:39.640 --> 1:00:42.240 minutes I think for me, and I'm pretty sure I 1:00:42.240 --> 1:00:44.240 probably went for an hour or something like that. 1:00:44.400 --> 1:00:47.520 Yeah, And how did opposing counsel? How much time did 1:00:47.520 --> 1:00:47.880 they use it? 1:00:48.000 --> 1:00:49.520 And I think they used a fair amount of time 1:00:49.560 --> 1:00:52.120 as well. I think the court really did want to 1:00:52.160 --> 1:00:54.520 try and ask a lot of the hard questions to 1:00:54.600 --> 1:00:58.880 both sides, and so yeah, so I think it did 1:00:58.920 --> 1:00:59.320 go long. 1:00:59.520 --> 1:01:03.280 So the DC Court of Appeals recognizes how significant this 1:01:03.400 --> 1:01:06.600 case is, they expedite it. It's a full on bank. 1:01:06.720 --> 1:01:11.280 All eleven justices hear it. Where does it go from here? 1:01:11.360 --> 1:01:14.720 I was trying to figure out what options So I'm 1:01:14.760 --> 1:01:19.680 going to assume for argument's sake that the plaintiff is 1:01:19.800 --> 1:01:23.120 successful in this case, and they affirm the lower court's 1:01:23.200 --> 1:01:29.160 ruling against the president. Tariffs are Congress's venue, not the 1:01:29.200 --> 1:01:34.720 president's their responsibility. What happens from here? What can the 1:01:34.800 --> 1:01:38.600 Supreme Court do? They could say that's fine, let it 1:01:38.640 --> 1:01:42.560 stands as far as I know. They could remand the 1:01:42.600 --> 1:01:45.880 case for further fact finding to the trial judge and 1:01:45.920 --> 1:01:48.960 say we want to see more specific things, or they 1:01:49.000 --> 1:01:52.280 can take it up on a full hearing. What am 1:01:52.280 --> 1:01:54.200 I missing? What am I forgetting from law school? 1:01:54.240 --> 1:01:57.800 That's exactly right. So if we win, you know, the 1:01:57.840 --> 1:02:00.000 government will try and take the case to the Supreme Court. 1:02:00.120 --> 1:02:02.960 They've already said they would do that, and we hope 1:02:03.000 --> 1:02:04.919 the Supreme Court at that point wouldn't hear the case. 1:02:04.960 --> 1:02:08.640 I mean, I'm privileged to represent these plaintefs. They're small businesses. 1:02:08.760 --> 1:02:12.360 Bos Selections is a small wine company. It's been around 1:02:12.400 --> 1:02:15.760 for a while. And if they're saying, and they filed 1:02:15.800 --> 1:02:17.880 briefs in the Supreme Court, in the Court of Appeals, 1:02:17.880 --> 1:02:21.200 it's say, if we lose this case, our business may 1:02:21.240 --> 1:02:23.800 go under, and other businesses like ours may go under. 1:02:24.320 --> 1:02:27.840 And so you know, we think from the perspective of 1:02:27.840 --> 1:02:31.200 small businesses in particular, it's really important that this is 1:02:31.280 --> 1:02:34.200 you get settled and settled quickly. And if the Court 1:02:34.200 --> 1:02:38.240 of Appeals says, I hope they will that President Trump's 1:02:38.280 --> 1:02:40.840 tariffs are unconstitutional, we hope that's the end of it. 1:02:40.840 --> 1:02:42.720 It might not be. Of course, Supreme Court may decide 1:02:42.720 --> 1:02:46.880 to hear the case. Conversely, if the government wins in 1:02:46.920 --> 1:02:49.960 the Court of Appeals and says these tariffs are okay, 1:02:50.800 --> 1:02:53.600 then we would presumably go to the Supreme Court and 1:02:53.640 --> 1:02:56.680 say no, they're not, and then ask the Supreme Court 1:02:56.680 --> 1:02:58.800 to hear it. And then there is, as you say, 1:02:58.840 --> 1:03:03.040 a third option, which the Court of Appeals might say, hey, 1:03:03.120 --> 1:03:05.200 you know, we think that this needs to go back 1:03:05.240 --> 1:03:08.440 to the trial court for further fact finding on something 1:03:08.560 --> 1:03:11.840 or the other. You know, I think that's in many 1:03:11.880 --> 1:03:14.960 ways the worst of every world because everyone needs certainty 1:03:15.080 --> 1:03:19.800 around this, particularly the business community, and so you know, 1:03:20.600 --> 1:03:23.520 you know, there's definitely been floated as a possibility, but 1:03:23.600 --> 1:03:26.360 it's one that I think wouldn't be attractive to the government. 1:03:27.120 --> 1:03:29.240 And the facts in question are pretty clear. Here's what 1:03:29.280 --> 1:03:33.640 the president did, he is what the litigation has showed, 1:03:33.800 --> 1:03:38.840 and here's the legislation and the constitution. The specific facts 1:03:38.840 --> 1:03:42.120 don't seem to matter that much other than what is 1:03:42.200 --> 1:03:43.760 pretty widely understood. 1:03:43.920 --> 1:03:46.240 Yeah, so that's correct, That's exactly our argument. 1:03:46.680 --> 1:03:52.080 So let's talk about remedies. Hypothetically, you win at the 1:03:52.120 --> 1:03:56.680 appellate level. There's been a stay for the prior victory 1:03:56.720 --> 1:04:00.120 at the district court level, at the International Court of Trade. 1:04:01.080 --> 1:04:06.680 What sort of remedies do small businesses get? Can the 1:04:06.720 --> 1:04:10.360 tariffs be thrown out? Can companies that have paid tariffs? 1:04:10.360 --> 1:04:12.919 Can they get refunds? How does this work? Right? 1:04:13.000 --> 1:04:15.720 So, I think right now, all we have asked for 1:04:16.000 --> 1:04:19.040 in our case is is for the tariffs to be 1:04:19.120 --> 1:04:23.560 declared unconstitutional, illegal and void. There is a question, as 1:04:23.560 --> 1:04:27.320 you say about about companies individuals that have paid tariffs, 1:04:27.560 --> 1:04:30.000 can they get a refund on that from the government. 1:04:30.600 --> 1:04:33.160 That's not something that's been briefed yet or argued. I 1:04:33.320 --> 1:04:36.840 think it is kicking around as an issue. When President 1:04:36.880 --> 1:04:41.520 Trump issued some tariffs that were declared illegal before, there 1:04:41.560 --> 1:04:44.120 were refund actions that were filed, and I think those 1:04:44.120 --> 1:04:47.960 refund actions are still pending years later in the courts. Yes, 1:04:48.360 --> 1:04:52.160 so you know, it's a long process, that refund process 1:04:52.240 --> 1:04:55.800 to the extent it's available. We have just not gotten 1:04:55.840 --> 1:04:56.760 into that at the time. 1:04:56.840 --> 1:04:59.960 And I look at tariffs as of that tax on consumers. 1:05:00.600 --> 1:05:03.360 I'm going to assume consumers are just that money's gone. 1:05:03.360 --> 1:05:04.840 They'll never be able to see that back. 1:05:05.000 --> 1:05:06.560 Yeah, I don't know if that, you know, I think 1:05:06.600 --> 1:05:09.000 that may be the case. I think you're right to 1:05:09.120 --> 1:05:12.600 characterize tariffs as a tax. I think you're one hundred 1:05:12.600 --> 1:05:15.280 percent right. That's what we're talking about. We're talking about 1:05:15.320 --> 1:05:18.600 the price because of President Trump's tariffs, the price of 1:05:18.640 --> 1:05:22.240 everything you're hurting on Amazon or at the grocery store, whatever, 1:05:22.800 --> 1:05:26.200 you know, increasing the cost to you, the American consumer. Indeed, 1:05:26.400 --> 1:05:30.840 the Tax Foundation, which is a nonpartisan group, has said 1:05:30.840 --> 1:05:33.960 that this is the largest tax increase on American consumers 1:05:33.960 --> 1:05:36.360 since Bill Clinton in nineteen ninety three. 1:05:36.640 --> 1:05:39.960 That's a big tax increase, isn't it. Yeah, So let's 1:05:40.000 --> 1:05:43.479 talk about I know you don't want to speculate about 1:05:43.520 --> 1:05:49.520 the Supreme Court. This court seems to have been increasingly 1:05:49.600 --> 1:05:55.960 allowing presidential authority to expand. At what point is it 1:05:56.000 --> 1:06:00.520 a bridge too far? This is essentially we're going to 1:06:00.520 --> 1:06:06.320 give the president the authority to tax, which is Congress's responsibility. 1:06:07.160 --> 1:06:10.000 How do you think about how the Supreme Court is 1:06:10.080 --> 1:06:13.920 going to contextualize this. Is there a narrow keyhole that 1:06:13.960 --> 1:06:16.280 they can sort of, you know, thread the needle and 1:06:16.360 --> 1:06:21.080 avoid the constitutional argument. I'm trying not to put words 1:06:21.120 --> 1:06:25.320 in your mouth and think about what are the possible 1:06:25.760 --> 1:06:27.120 scenarios we could go down. 1:06:27.600 --> 1:06:30.360 Yeah, so I think, you know, the Supreme Court has 1:06:31.120 --> 1:06:33.960 probably the same three options that we talked about earlier 1:06:33.960 --> 1:06:37.880 for the Court of Appeals, declare the tariffs illegal and unconstitutional? 1:06:38.200 --> 1:06:41.959 Declare the tariffs constitutional and legal, or send it back 1:06:42.000 --> 1:06:45.320 to the trial court for some fact finding. I do 1:06:45.400 --> 1:06:50.960 think that there's a deep concern that this president is 1:06:51.000 --> 1:06:54.960 asserting powers in very, very muscular ways, and some of 1:06:54.960 --> 1:06:57.720 those are legitimate and others are not. This is one 1:06:57.760 --> 1:07:01.240 that I think is pretty easy to characterizes, falling on 1:07:01.280 --> 1:07:04.520 the latter side of that line. Others are more difficult, 1:07:04.680 --> 1:07:08.320 and you know, and so I think there's a conversation 1:07:08.640 --> 1:07:11.760 at the court about that question. But I think they're 1:07:11.760 --> 1:07:14.480 going to approach this case as they do any on 1:07:14.600 --> 1:07:17.880 its own individual facts, and the facts are I think 1:07:17.920 --> 1:07:21.920 here that the president hasn't done what the Constitution requires, 1:07:21.920 --> 1:07:24.120 which is to have him go to Congress and get 1:07:24.160 --> 1:07:27.320 the authority for the things that he says he claims 1:07:27.360 --> 1:07:28.720 he needs so desperately. 1:07:29.280 --> 1:07:34.320 So the middle e in AIPA is emergency. Is there 1:07:34.520 --> 1:07:37.320 an argument to be had that, hey, we're in the 1:07:37.360 --> 1:07:42.360 middle of an emergency, although you know some of the 1:07:42.400 --> 1:07:46.080 things that kind of surprise me about the tariffs he 1:07:46.160 --> 1:07:50.360 negos to the president negotiated the North American Trade Group 1:07:50.440 --> 1:07:54.000 of trade laws and now threw that out in tariff 1:07:54.400 --> 1:07:57.560 and we have a free trade agreement with South Korea 1:07:57.600 --> 1:08:01.720 and suddenly with tariffing them. How is it an emergency 1:08:01.760 --> 1:08:05.240 if you're tariffing every country in the world, including those 1:08:05.320 --> 1:08:08.600 that do not have tariffs on our goods. 1:08:08.640 --> 1:08:10.760 It's one hundred percent right. And I would point out 1:08:10.800 --> 1:08:13.400 that the language of this nineteen seventy seven law that 1:08:13.440 --> 1:08:17.280 President Trump is is relying on AIPA. It doesn't just 1:08:17.280 --> 1:08:20.280 say emergency. It says it must also be an unusual 1:08:20.479 --> 1:08:25.120 and extraordinary threat. And yet the president's executive order imposing 1:08:25.160 --> 1:08:28.560 these tariffs has said trade deficits have been a persistent 1:08:28.640 --> 1:08:31.320 feature of the American economy for the last fifty years. 1:08:31.800 --> 1:08:35.920 And so he basically pled himself out of court because 1:08:36.160 --> 1:08:39.439 his own executive order says these trade deficits are not 1:08:39.680 --> 1:08:43.479 unusual and extraordinary, They're commonplace and de raguer in the 1:08:43.479 --> 1:08:47.880 American economy. So that was I think a big portion 1:08:48.000 --> 1:08:51.320 of my oral argument before the court. And you know, 1:08:51.400 --> 1:08:53.640 I suspect that we'll, you know, get a bunch of 1:08:53.680 --> 1:08:56.679 attention in whatever decision the Court of Appeals will make. 1:08:58.160 --> 1:09:02.280 So I think, look, you want a circumstance, and Founders 1:09:02.360 --> 1:09:06.200 wanted a wanted a constitutional structure in which, if there 1:09:06.280 --> 1:09:08.719 is a true emergency, presidents get leeway. 1:09:08.800 --> 1:09:13.679 You're anticipating my next question, which is the Supreme Court 1:09:13.800 --> 1:09:17.479 doesn't want to tie the president's hand in cases of 1:09:17.520 --> 1:09:23.200 true emergencies. I'm hearing your argument. This should have nothing 1:09:23.200 --> 1:09:25.000 to do with that there's no emergency. 1:09:25.040 --> 1:09:27.439 Exactly. You've got time to go to Congress. Think back 1:09:27.479 --> 1:09:31.400 to President Lincoln in the Civil War. He orders the 1:09:31.439 --> 1:09:35.040 blockade of the South, he suspends the rid of habeas corpus, 1:09:35.640 --> 1:09:40.120 and and yet he says, I'm going to call a 1:09:40.120 --> 1:09:43.400 special session of Congress on July fourth to get people 1:09:43.479 --> 1:09:46.360 back to vote and say did I do Do you 1:09:46.439 --> 1:09:48.160 ratify what I did? I had to do it in 1:09:48.200 --> 1:09:50.439 an emergency, And of course then you didn't have middle 1:09:50.439 --> 1:09:52.880 of Civil War, middle of Civil War, no telecoms, no 1:09:52.960 --> 1:09:55.640 instant email or anything like that. You know, so he 1:09:55.680 --> 1:09:57.960 had to take certain actions in order to protect the 1:09:58.000 --> 1:10:01.280 American Republic. And you you know, certainly I and the 1:10:01.280 --> 1:10:04.519 small businesses and privilege to represent. We're not saying in 1:10:04.560 --> 1:10:07.919 some true emergency in which Congress can't act, the president 1:10:07.960 --> 1:10:10.240 can't fill the void. Of course he can. This is 1:10:10.280 --> 1:10:12.400 the opposite of that. This is one in which Congress 1:10:12.439 --> 1:10:15.400 is operating normally. The trade deficits have been going on 1:10:15.479 --> 1:10:19.200 for fifty years. No president has ever sought this kind 1:10:19.240 --> 1:10:22.479 of sweeping power. And yet he comes along and says, I, 1:10:22.600 --> 1:10:25.920 Donald Trump get this power. That's a very dangerous thing, 1:10:26.400 --> 1:10:28.880 not just because for some people who are concerned about 1:10:28.880 --> 1:10:32.400 President Trump, but if you're concerned about President Mamdani or 1:10:32.400 --> 1:10:35.080 whomever in the future. You don't want presidents to have 1:10:35.120 --> 1:10:37.160 that kind of sweeping power on their own. 1:10:37.520 --> 1:10:39.960 What a perfect place to leave it. Thank you, Neil 1:10:40.040 --> 1:10:42.960 for being so generous with your time. We have been 1:10:43.000 --> 1:10:46.920 speaking with Neil Kadial. He is the appellate litigator for 1:10:47.040 --> 1:10:51.440 VOS Selections Versus Trump, which seeks to declare the president's 1:10:51.680 --> 1:10:56.320 tariffs not only null and void, but unconstitutional. If you 1:10:56.479 --> 1:10:59.200 enjoy this conversation, well, check out any of the other 1:10:59.560 --> 1:11:02.600 five home we've done over the past twelve years. You 1:11:02.640 --> 1:11:07.519 can find those at iTunes, Spotify, Bloomberg YouTube, wherever you 1:11:07.560 --> 1:11:10.800 find your favorite podcasts. I would be remiss if I 1:11:10.800 --> 1:11:12.680 did not thank the craft team that helps us put 1:11:12.720 --> 1:11:17.560 these conversations together each week. Alexis Norieger is my producer. 1:11:17.960 --> 1:11:21.120 Sage Bauman is the head of podcasts at Bloomberg. Sean 1:11:21.200 --> 1:11:25.879 Russo is my researcher. I'm Barry Ritolts. You've been listening 1:11:25.920 --> 1:11:33.560 to Masters in Business on Bloomberg Radio.