Supreme Court Rebukes Trump at Biggest Hearing Yet

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2:00Michael Popok:Looks like this tariff scheme of Donald Trump at the United States Supreme Court is going to come down to Neil Gorsuch and which side he lands on. We have the oral argument today. It went on for over two and a half hours. I'm Michael Popok. You're on the Midas Touch Network and Legal AF. And I'm back from absorbing that two and a half hours. I'll give you what I believe, my honest commentary about what happened today. Could this be a 5-4 decision with Amy Coney Barrett siding with the liberals and dragging across with her John Roberts? Or will Gorsuch side and make it more of a 6-3 majority? Or will Gorsuch, based on some questioning, decide that he's got to stay on the hard right-right wing and side with Alito Thomas and Kavanaugh and form a majority opinion there?

2:53Michael Popok:It should not have been that difficult. The key issues in the case are whether the major questions doctrine, I'm going to describe that to you, whether the non-delegation doctrine, whether the textual language of the emergency statute Donald Trump used, whether that all leads inexorably to the conclusion that the tariffs have been improperly used by President Trump under the International Economic Emergency Powers Act or not. That is the fundamental issue. And we're here to discuss it on Legal AF and Midas Touch on Michael Popok. Let's get to it. And I'm going to play you some clips that suggest to me that just by the skin of our nose, the skin of our teeth, they're going to strike down those tariffs.

3:38Michael Popok:At least it's possible because there's a lot of skepticism being expressed during the oral argument, including from people who are usually reliably MAGA. The major issue here is whether either under Article 2 of the Constitution, the powers of the presidency to regulate in the areas of foreign policy, foreign affairs, is running up against the Article 1 powers that have been given to Congress by our founding fathers and framers to be responsible for tariffs and excise taxes and taxes. And what is the nature of this tariff? Is it just a license or a tool of regulation, as that term is used in the statute that Donald Trump relied on, to impose universal tariffs on 138 countries on almost all goods for unlimited duration, which is an Article I power of Congress?

4:34Michael Popok:Is that what a license is? Is that what regulating means, considering IEPA doesn't contain the word tariff? And under the major questions doctrine, which is an invention of the Roberts court, if Congress intends to delegate that type of power and can delegate that power and give it to the executive branch and give them that authority, they have to do it expressly and clearly and not through interpretation of a statute. Or as Amy Coney Barrett said in her recent book, when you're doing statutory interpretation or construction. You read the statute, you read the statute, you read the statute. And again, there's no language in the statute about this particular thing.

5:21Michael Popok:They talk about the word license. There's a word license in the regulation, import control, you know, in terms of that. But how do you stretch license into a tariff, which is revenue generating. It is the linchpin of the entire economic model of Donald Trump to be able to collect trillions of dollars of revenue and replace the lost revenue in income taxes. And yet his Solicitor General, John Sauer, he of the voice that's almost impossible to listen to, he told the court that revenue is incidental. That's not really, really? Donald Trump says it's life or death, the ability to life or death, that we're going to go into the Great Depression if he's not able to tariff his way to some sort of economic success in a way no president has ever done.

6:10Michael Popok:And the last president to try to do it that way led us into the Great Depression. Let me play you a clip to tell you how to kind of lead us into here of the problems that he faced. John Sauer, the Solicitor General, the number four in the Department of Justice, Donald Trump's former criminal appellate lawyer, but now our Solicitor General that he had. Let's start with a clip of him going back and forth a bit with Sotomayor, Justice Sotomayor and Ketanji Brown-Jackson, where he couldn't answer the question straight, obviously, because he can't believe in the logic of his own argument. Let's play the clip.

6:46They say, well, you can impose quotas. Well, quotas are essentially economically, you know, economically equivalent to tariffs. So the question is, why would you be able to quota underregulate but not tariff underregulate when the tariffs are themselves regulatory? And let me turn back to the question I was getting the response. Could the answer be that in other places where Congress wants that particular form of regulation to be used, they say impose duties. They say you can tax, Mr. President. Here they don't say that.

7:17Michael Popok:Now, this whole thing has to do with the word regulate and does the word regulate, does that subsume a power to tariff? I just had A.G. Bonta for the Attorney General for California on last night on the intersection. He's going to be back on and having an interview with me later today because he was in the room in Washington listening to the oral argument as the Attorney General from California, as the Attorney General from Oregon argued on behalf of the states. And he said, Congress, he's right, Congress doesn't hide an elephant in a mouse hole. If they wanted to give this tremendous power to the president, they do it by way of express language.

7:57Michael Popok:That's the major questions doctrine. And the other hang up is because the Supreme Court also uses something called the non-delegation doctrine, that there are just certain powers within the Constitution that you can't delegate to another branch. You have to keep it for yourself. Congress can't give away those things. In fact, there is a back and forth with Gorsuch that is very, very telling about the non-delegation issue. Let's play it. This is a situation where we're not going to see a delegation problem when there clearly would have been a delegation problem in the domestic context. And those cases, I think, are powerful here.

8:30General, if I can cut through those words, I think you're saying that no, the president doesn't have inherent authority over tariffs in peacetime. Absolutely. We do not assert that. We say that Congress can delegate that to him. And when Congress does so, as it does when it uses the phrase, regulate importation. I follow all of that. Okay. You emphasize that Congress can always take back its powers. You mentioned that a couple of times. But don't we have a serious retrieval problem here? Because once Congress delegates by a bare majority, and the president signs it, and of course, every president will sign a law that gives him more authority.

9:11Congress can't take that back without a supermajority. And even, you know, even then, it's going to be veto proof. What president's ever going to give that power back? Pretty rare president. So how should that inform our view of delegations and major questions? I would look at the balance that Congress struck, because what Congress did initially, it had a two-house legislative veto. And we struck that down. And then Congress went back to the statute and amended It took out the legislative veto and left in the joint resolution, but still left the president with all those. That's what that's what Congress did.

9:45Yes. Fair enough. As a practical matter in the real world, it can never get that power back. I disagree, because in January 2023, Congress voted to terminate one of the biggest IEPA emergencies ever, the COVID emergency. And the president went along with that. So what the statute reflects is there's going to be the ability for a sort of political consensus against a declared emergency. What happens when the president simply vetoes legislation to try to take these powers back? Well, he has the authority to veto legislation determined in a national emergency, for example. I mean, he retains the powers in the background because I even still on the books.

10:17But if he declares an emergency and Congress doesn't like it and passes a joint resolution, yes, he can absolutely veto that.

10:23Michael Popok:Now, what they're getting at there is what is what Gorsuch feared. And this is from Gorsuch now, who said out loud what he sees is a is a one way ratchet. of increasing accretion of presidential power that can't ever be ripped back by Congress. In fact, Amy Coney Barrett was very concerned about once this delegation, even if it were possible, were given to a president, how would they ever get it back? As you heard Gorsuch say the same thing. And these are the MAGA conservatives on the Supreme Court. Let's play Amy Coney Barrett. So if Congress wanted to reject the, let's say that we adopt your interpretation of the statute.

11:08If Congress said, whoa, we don't like that, that gives a president too much authority under IEPA, it's going to have a very hard time pulling the tariff power out of IEPA, correct? I don't know if it would be a hard time. Certainly it would have to have a statute. And then what should be the true of any case where this court definitively interprets a statute. Yes. I think that the Congress has to pass a statute. that grants presidential power makes it particularly hard to get the president to not want to veto something, which, as Justice Gorsuch is pointing out.

11:40Michael Popok:Now, I've had some conversations with people who are constitutional scholars, and they believe that despite Gorsuch's comments, he's really ultimately going to side with the right right wing, meaning what is Roberts going to do? I'll tell you what they should do under their own doctrines. Originalism, textualism, what did the founding fathers believe? They didn't give the power to tariff to the president. Now, Kavanaugh argued, well, you know, foreign affairs and Congress did give the president the power to do import controls and to embargo to stop imports. So why can't he tariff? Because tariffs are taxes, as Sotomayor told the assembled group and John Sauer, General Sauer.

12:29Michael Popok:And taxes have to go through a bill in the House and a reconciliation in the Senate and a signature and a majority in both and a signature by a president before you can start imposing taxes on people. Not just one guy who through tariffs has now imposed taxes on Americans. So you have, but you see Kavanaugh is going to side with Alito and Thomas, who were relatively quiet. Roberts asked a few questions that indicated he didn't believe in Sauer's argument. Doesn't mean he's going to side with the majority and strike down the tariffs. I think they're very concerned about the size of the tariffs and the amount of money that's been collected and what it could do to the American economy if they rule in a certain way.

13:16But the lawyer that represented the learning center that was the plaintiff in the case gave

13:21Michael Popok:them an easy out. He said, you can make it retroactive. You can make it prospective. No more collection of tariffs and let the U.S. Treasury keep the money that's already been collected in the hundreds of billions of dollars, but no more tariffs. But then the whole worldwide order is going to be recalibrated because over 90 percent of trade right now touches some sort of Trump tariff. There was an interesting back and forth with Gorsuch, though, which leads me to believe that his mind is not made up, although he may ultimately side with the far right, because I don't think it was a positive exchange for the government.

13:56Michael Popok:Let's play the last Gorsuch clip. General, just a few questions following up on the major questions discussions you've had. You say that we shouldn't be so concerned in the area of foreign affairs because of the president's inherent powers. That's the gist of it, as I understand it, why we should disregard both major questions and non-delegation. So could Congress delegate to the president the power to regulate commerce with foreign nations as he sees fit? To lay and collect duties as he sees fit? We don't assert that here. That would be a much harder case now in 1790. Isn't that the logic of your view, though?

14:36I don't think so, because we're dealing with a statute that was a carefully crafted compromise. It does have all the limitations that I just talked about. You're saying we shouldn't look and we shouldn't be concerned with, I want to explain to me how you draw the line because you say we shouldn't be concerned because this is foreign affairs and the president has inherent authority and so delegation off the books more or less. And if that's true, what would prohibit Congress from just abdicating all responsibility to regulate foreign commerce, for that matter, declare war, to the president. We don't contend that he could do that.

15:11Why not? Well, because we're dealing with a statute, again, that has a whole I'm not asking about the statute. General, I'm not asking about the statute. I'm asking for your theory of the Constitution and why the major questions of non-delegation, what bite it would have in that case. I would say by then you had moved from the area where there's enormous deference to the president, actually both the political branches, where here there's inherent authority and pile on top of that there's a broad television. You're saying there's inherent authority in foreign affairs, all foreign affairs. So regulate commerce, duties and tariffs and war.

15:43It's inherent authority all the way down. You say fine, Congress decides tomorrow, well, we're tired of this legislating business. We're just going to hand it all off to the president. What would stop Congress from doing that? That would be different than a situation where there are meets and bounds, so to speak. It would be a wholesale application. You say we are not here to judge meets and bounds when the foreign object is. That's what I'm struggling with. You'd have to have some test. And if it isn't the intelligible principle test or something with more bite than that, you're saying it's something less.

16:15What is that less? I think what the court has said in its opinions is just that it applies with much less force, more limited application in this context. So perhaps the right to approach it is a very, very deferential application of the intelligible principle test, that sort of wholesale application of... All right, so now you're admitting that there is some non-delegation principle at play here, and therefore major questions as well. Is that right? It's very limited, very, very deferential. And again, the phrase that Justice Jackson uses, it just does not apply. I know, but that's where you started off, and now you've retreated from that, as I understand it.

16:48Well, I think we, as our frontline position is certainly a stronger position, but if the court doesn't accept it, then if there is a highly deferential... Can you give me a reason to accept it, though? That's what I'm struggling and waiting for. What's the reason to accept the notion that Congress can hand off the power to declare war to the president? Well, we don't content that again. Well, you do. You say it's unreviewable. There's no manageable standard, nothing to be done. And now you're I think you tell me if I'm wrong. You backed off that position.

17:14Michael Popok:Now we got to do the math and we got to figure out how to count to five. How do you get the five votes of the nine in order to render a decision? I don't think some people have said it'll come out in weeks. I don't think it's coming out in weeks. I think it's coming out no earlier than a month, and it could be as late as next June for the decision to be made. Somewhere between now and June, they're going to make a decision. I don't think they're going to do it. If they're going to do it, they're going to do it far enough away from the midterms, right? So June would be, of course, far enough away from the midterms.

17:46Michael Popok:They could do it now and give time to the Trump administration to go fix its problem of having lost its cherished tariffs. But if they were to apply all of their doctrines from originalism, what did the founding fathers believe? President doesn't have that power. Textual analysis, statutory construction. Tariff doesn't appear as a word in the statute. Then you go to major questions doctrine. this issue of 138 countries being hit with a tariff about a slow-moving non-emergency of a trade deficit, a trade imbalance, wouldn't that be something that Congress would have to have expressed directly to give the president that power, not something we interpret from the word regulate or license?

18:36Michael Popok:Yes. I mean, that's what the prior Supreme Courts have said, led by John Roberts. And then you have non-delegation doctrine, which is there's just some things that you can't delegate one branch to another. And I think tariffs is one of them. Now we got to count to five. Amy Coney Barrett, Sotomayor, and Kagan, they're going to vote to strike this down. Question is, are they going to be in the dissent or are they going to be in the majority, right? Where do they get the other two votes from? Just by Amy Coney Barrett's questioning and her siding with Sotomayor a couple of times in the questioning and with Kagan, I think she's going to be over with them.

19:25Michael Popok:That's four votes, still one short. So is it five to four to uphold the tariffs or five to four to strike them down? Now we're down to Roberts, the chief justice who didn't ask questions. You know, he indicated that major questions doctrine would be applicable, at least in my view of it. And so you have that. And then you have the... So I think Roberts is in play. And then you have Kavanaugh, I'm sorry, Gorsuch, who, as you heard, asked some pretty scathing questions. Could he flip after reading or being issued the decision to write? Could he flip over? He could. Right now, I think it's five to four to strike down the tariffs.

20:15Michael Popok:Could be five to four to uphold the tariffs. Could it be six, three? It could. I just don't see it. I think it's a five to four one way or the other. if Gorsuch it's going to come down to Roberts and Gorsuch and where they side if they both go hard right 5-4 if they split then 5-4 the other way based on my reading of it the MAGA are going to need both Gorsuch and Roberts to form their 5-person block because I think Amy Coney Barrett my view has flipped over to the other side We'll continue to follow it. I'm glad you're here on Midas Touch Network and on Legal AF. Take a minute, hit subscribe buttons in both places.

21:00Michael Popok:The YouTube channel for Legal AF, the one from Midas Touch as well. And I thank you for being here. I'm Michael Popak. Can't get your fill of Legal AF? Me neither. That's why we formed the Legal AF Substack. Every time we mention something in a hot take, whether it's a court filing or a oral argument, come over to the Substack. You'll find the court filing and the oral argument there, including a daily roundup that I do call, wait for it, Morning AF. What else? All the other contributors from Legal AF are there as well. We got some new reporting. We got interviews. We got ad-free versions of the podcast and hot takes.

21:34Michael Popok:Where? Legal AF on Substack. Come over now to free subscribe.

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