Trump Gets Ripped to Shreds on Tariffs by Appeals Court

0:00Michael Popok:Well, don't worry about Donald Trump's tariffs much longer because an 11-judge panel today of the Federal Circuit Court of Appeals, I believe, is about to strike them down. And when they strike them down, that means he's not going to be doing any more deals. He's not going to be collecting any more money. He's not going to be imposing any more sanctions on our allies like Brazil at 50 % in order to help people like another coup-leading president named Bolsonaro. Naro. He's not going to be able to go after China. And all that money, all that 50, 60 billion dollars that came into the U.S. Treasury all goes back, some of which may actually go back to his commerce secretary's family business because they're betting against the tariffs to 11 judges and none of them appointed by Donald Trump.

0:47Michael Popok:I'm going to report on it right here. We had an oral argument for two hours today in D.C. on two cases related to the attack on Donald Trump's tariffs. And I can tell you with reasonable certainty, although if I'm wrong, I'll come back and tell you that he's not going to win. It may go up to the United States Supreme Court. We'll talk about that next as well. You're here on the Midas Touch Network. You're with Michael Popok. And let's get down to the intersection of law, politics and tariffs. And we get to this moment. A couple of months ago, there were a couple of appeals, a couple of cases. One went up to the Court of International trade, a little understood, little known specialty court sits in New York.

1:26Michael Popok:And a three-judge panel heard argument as to whether Donald Trump has the power under a 1977 emergency economic statute. We call it the International Emergency Economic Powers Act, also called IEPA, whether he had the power under IEPA to do something that the Constitution says is reserved for Congress. Impose tariffs. A couple of little problems pointed out today in the 11th judge panel. There's not one mention of tariffs as a power under IEPA. There's sanctions. You want to sanction a foreign country because of a national security concern? This statute came out of the 1977 Carter era. You want to do that?

2:07Michael Popok:You know, we're getting screwed with by OPEC about oil. It's causing a recession. We need to fire back. you can use a fill in the blank sanction, not a tariff, not a reciprocal tariff, not a let's just charge everybody a 16 percent toll on the highway of commerce tariff. Not that. In fact, as one judge, Judge Raina, Jimmy Raina today, pointed out among the 11 judges during oral argument where he fired on the DOJ lawyer, Brett Schumate trotted out to represent the Department of Justice. He said, show me where I got time. Show me where in the entirety of the IEPA statute, there's a mention of the word tariff being a power of a president.

2:50Michael Popok:And of course, the answer is there isn't any. And now they've then they focused on emergency. How is this an emergency? Because in order to even use, even if you even if you could use a tariff as a sanction, which is beyond questionable, you have to be able to properly invoke the power. Donald Trump loves emergencies, right? The Alien Enemies Act, we're under attack by Venezuela. Put everybody in jail without habeas corpus rights or due process. Get them out of the country and you can't review what I do. Same thing here. Emergency, unusual economic circumstance combined with an emergency. I get to use my powers and you court can't review me, let alone have any types of checks and balance.

3:31Michael Popok:And Judge Dyke, who was appointed by Clinton said, you know, we have a little thing called the major questions doctrine, which says that if Congress wants to totally turn over a power or throw out an entire section of the United States code, its statute book about trade and tariffs, just toss it and give it over to the president under an emergency, you'd think they'd express that clearly. And they haven't done that because that seems to be a major question. So since they haven't done that, to adopt your interpretation, Mr. Schumate, for the United States of America and Donald Trump would mean we just toss out the entire trade system and scheme that Congress put in place off of its Article I powers.

4:15Michael Popok:Doesn't that seem unusual to you that we would be able to do that or that it should be done? And of course, they dig in. They press the losing hand every time. Well, what he does once the emergency is declared is beyond review. It's beyond reproach. He's infallible. I'm sorry, did we elect a pope? I didn't think we elected a pope. I thought we elected a president every four years. But this 11-judge panel, let's talk about that panel. So the Court of International Trade, a couple of months ago, also 3-0, ruled against Donald Trump. Similarly, their ruling was, yeah, this isn't an emergency. It's not unusual.

4:48Michael Popok:You don't have the tariff power. And so all of your tariffs and all of these deals that you're making off your tariffs with Mexico, with Canada, with Brazil, or not with Brazil, with a 50 % new tariff that they just slapped on Brazil. But with the European Union, all these phony announcements of these aspirational, unenforceable deals, they all get torpedoed. They all get rescinded and they all get voided if the appeals panel deals the way I just said. You know what they don't tell you about hitting a certain age? The gray just shows up like an uninvited guest. I'd look in the mirror and think, when did that happen?

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6:49Michael Popok:So the three judge panel, Court of Appeals rules against Donald Trump. Another judge, they were handling a case brought by plaintiffs who represented small business. Another lawsuit similar brought by 12 states also got in front of a judge in D.C. And there's an appeal related to that. So now the Federal Circuit Court, which is a specialty appellate court, takes in appeals from places like the court, the Court of Appeals and patent and trademark and that kind of thing, all ends up at the Federal Circuit Court. They had an en banc, all 11 judges, sitting judges, heard oral argument. There needs to be a majority decision.

7:25My God, is this going to be 9, 2, 10, 1, 11, 0? No worse than 8 to 3. um the makeup of the 11 judges is eight democrats three republicans zero trumpers yeah i know a lot of bush appointees reagan appointee yeah no they're based on the hot bench today they're not coming out of this with the tariff scheme alive and so what will happen next so they'll make a ruling my guess is they'll make it in no less it won't be in a week maybe a month, could be a little bit earlier. And then so we'll be in beginning of September, maybe right after Labor Day, we'll get a ruling. Now, this panel, this court actually stayed the Court of International Trade's decision two months ago, which destroyed the tariff scheme so that Trump couldn't collect the money.

8:15He's been collecting the money and putting it in the U.S. Treasury, subject to refund over the last two months.

8:20Michael Popok:It was like 60, 70 billion dollars have come in. Now, as I've reported before, his Commerce Secretary, Howard Lutnick, has a family business that he sold to his sons that already bet against Donald Trump and the administration and his father and their father. Because they're offering a product where they will buy your overpayment of refunds. Cents of the dollar, 20 cents of the dollar, 10 cents of the dollar. We'll, we got$10 million in overpayment because of these tariffs that are going to go down in flames. We'll give you 2 million for them. Okay, I'll take the 2 million now. And we'll wait on the 10 because when they get struck down, we'll cash in the complete refund.

8:55Genius. Except they're connected to the Commerce Secretary. All right. So when this goes down in flames, this money will have to get refunded. So next stop, you know, and the next stop is the United States Supreme Court. It'll be another emergency application. It'll go through Chief Justice Roberts. They'll probably file, they'll ask this court to continue to stay their order to give time for an appeal. They may do that. If they don't do that, they'll ask for an emergency stay. John Roberts will then have to consider. He'll give an administrative stay, I assure you, for a day or two, a few days or a week.

9:28He'll set a briefing schedule. He'll get the two briefs in, one from the government and one or maybe two from the plaintiffs, and then he'll hold oral argument. They don't, you know, sometimes with shadow docket emergency applications, they don't even do oral argument. But this is such a big issue that they'll hold oral argument. That'll probably be in later September, beginning of October. Now the new term for the Supreme Court opens first Monday in October. We got oral argument. We'll play it on Legal AF, the YouTube channel. Come over there. Hit the free subscribe button. And if I were guessing, I think even this would piss off some of the right wing on the United States Supreme Court.

10:06And it may go down. Trump may not get the five votes he needs to support because it does look like a violation of the major questions doctrine. It does look like Congress hasn't clearly spoken here. It does look like the emergency application law or the emergency law that Donald Trump is relying on does not support his position. And no amount of contortion and gymnastics and turning themselves into a pretzel is going to change that. Now, they'll try to reverse engineer it because they love helping Donald Trump and bend it over backwards. But they also have to think about the precedent of what it means in the future for this type of statute.

10:41Now, there had been a prior emergency act that was used in the 70s by Richard Nixon. But there, similar language, but they found, yeah, you can do a tariff, Nixon. It was challenging the courts also. But it was such a short term and such a specific item that it really looked like a sanction. It was a tariff, but it was really a sanction. That's not what Donald Trump did. He did these reciprocal tariffs on 150 countries. We're up to an average of 16%, the highest since 1930. And then he's nailed other countries with penalties like Brazil for 50%. You know, he's claiming that's a national security issue.

11:21That's going to get reviewed because he doesn't like the fact that they're going to put in prison the Donald Trump of Brazil, Bolsonaro, who led a coup, almost a military coup, to stop the peaceful transfer of power in Brazil after he lost. Who's that sound like? In fact, it happened after Jan 6th. He even tried to use a Jan 6th tactic of having his supporters storm the Capitol in Brazil, and he got caught, and he's going to go to jail. No matter how much Donald Trump whines and how much he threatens the economic sanctions on Supreme Court justices in Brazil, that's going down. Now, that's not technically an IEPA thing, but the ones with Canada, when you hear Canada, Mexico, European Union, Indonesia, Japan, all of it, all of it, and the ones that'll be announced, all go down in flames if he loses at the Federal Circuit Court of Appeals, which he will, and then at the United States Supreme Court.

12:15That'll probably be a later September, October event for oral argument, and they'll rule after that. My gut is they're going to let the collection of the federal tariffs happen in the meantime, so Donald Trump can keep taking a victory clap. And then one day they're going to say, no, sorry, give it all back. I'll follow it. You're on the Mind of Stutch Network. I'm Michael Popok, co-founder, co-anchor of Legal AF. I'm the managing director of Legal AF YouTube channel. Come over there as well. And all things Legal AF. So until my next report, I'm Michael. Can't get your fill of Legal AF?

12:45Michael Popok: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 where Legal AF on Substack. Come over now to free subscribe.