- 2 months ago
A swath of President Trump's tariffs were just dealt another legal setback — this time in an appeals court. In a 7-4 ruling, the U.S. Court of Appeals for the Federal Circuit said that Trump overstepped his presidential authority by invoking the International Emergency Economic Powers Act (IEEPA) to impose tariffs. On "Forbes Newsroom," former Sen. John Danforth (R-MO), a chair of "Our Republican Legacy," discussed the legal fight to get President Trump's tariffs struck down, a cause for which he filed an amicus brief.
Category
🗞
NewsTranscript
00:00Hi, everybody. I'm Brittany Lewis, a breaking news reporter here at Forbes.
00:07Joining me now is former senator and founding member of our Republican legacy,
00:11John Danforth. Senator Danforth, I appreciate you coming back on. Thanks for joining me.
00:16Thank you very much. Good to be with you.
00:18Senator, it's great to have you once again, because this is a continuation of a conversation
00:23we had back in May. A swath of President Trump's tariffs recently faced another legal setback.
00:29This time in an appeals court. In a seven to four ruling, the U.S. Court of Appeals for the
00:34Federal Circuit said that President Trump overstepped his authority by invoking the
00:38International Emergency Economic Powers Act, otherwise known as IEPA, to impose tariffs.
00:44And you signed an amicus brief in this case against the tariffs. So to start off the conversation,
00:49what's your reaction to this new legal hurdle? Well, I think that the court's decision is
00:56exactly right. It's important to point out that the court was not talking about whether tariffs are
01:03a good idea or a bad idea. That's really not the argument. The argument has to do with our
01:12constitutional structure in America. And it has to do with what was in the minds of the framers of our
01:23constitution when they wanted to protect our country against the concentration of power in a few hands,
01:33or in this case, one hand. So they created the separation of powers in this structure where there were
01:41three branches of government, equal branches of government. And now what's happened is that the
01:48president on his own has assumed congressional powers. So the power to tax, the power to impose
01:58tariffs now is something that he has aggregated to himself. And he can change at will just by the
02:06stroke of a pen. And that's not the way the constitution has been set up. So I think that what the court did is
02:14is just right. For those who believe in what's called strict construction of the constitution,
02:23it's hard to read the constitution in any way other than that the power to tax rests within the
02:31Congress, not within the president himself. And then there's something called the major questions doctrine,
02:38which the court has developed, which says that in questions in matters of major economic policy,
02:46and major political policy, if the Congress is going to delegate powers to the president,
02:53it has to do so very specifically and explicitly. And it clearly has not done it in this case. So I think
03:01the court's decision is correct. In May, when we had a conversation last on these tariffs, you said
03:09a similar thing that essentially, this is a constitutional case, and it's pretty cut and dry. And it most
03:16certainly will get kicked up all the way to the Supreme Court. Do you believe that the Supreme Court is going
03:21to take this case still A and B? What do you think that fight looks like once it's in the highest court?
03:26Yeah, I mean, I think it's definitely destined for the Supreme Court. And I can't imagine that the
03:39constitution could be read in a way that gives to the president of the United States on his own, the power
03:47to just to essentially impose taxes. I can't understand that, especially given the major questions
03:56doctrine of the court. So yeah, I think the court's going to take it. And it's hard for me to grasp
04:05how it could come out in any other way than affirming the Court of Appeals.
04:11And as we know, the Supreme Court is conservative leaning, but a leading scholar of constitutional law
04:18and politics and a law professor at the University of Maryland School of Law, Mark Grabber said he didn't
04:24think that the justices, including Roberts, Amy Coney Barrett, Brett Kavanaugh, or Neil Neil Gorsuch
04:31are too keen on tariffs. And this is what he said, quote, it won't surprise me if a number of Republicans
04:37on the Supreme bench actually jump on this one. He continued to go on to say, I think this court would
04:42love to have a case where it doesn't side with the administration. Do you think that they won't side
04:48with the administration that they could look at this and say, hey, this could be a time
04:52where we buck Trump? Or do you think that really matters here?
04:55Well, the job of the court is not to side with or against the administration. And it's not to
05:04decide on its own whether it's a matter of economic policy tariffs or a good idea or a bad idea.
05:11But that's not the work of the court. The work of the court is to interpret the Constitution.
05:16And that's all it is. And as I said, I just don't understand how the Constitution could be read
05:27in any other way than what it says. And that is that the power to tax is expressly vested in Congress,
05:37not on the President of the United States. Now, the general question of, you know, the effect of the
05:45economy, what the Constitution does is to set up a specific way in which legislation dealing with
05:56taxes is passed. So under the Constitution, tax bills have to originate in the House of Representatives,
06:06which is that part of Congress most directly connected to the people. So that's the principle
06:15of no taxation without representation. So bills are introduced in the House, they're referred to
06:24committee, hearings are held in the committee, the bills are marked up, they go to the floor of the
06:31House, they are amended or not amended, passed or not passed. If they are passed, they go to the Senate,
06:38same process in the Senate, a lot of hearings, a lot of public debate, and a kind of a complicated way
06:49of imposing taxes. But that's for a purpose. It's to say that an economic policy, you just don't have
06:58a president waking up one day and saying, well, I feel like imposing taxes today,
07:02or I'm feeling like imposing tariffs today. And then maybe the next day, he'll change his mind in
07:09another stroke of the pen. So it creates tremendous uncertainty in the country, if the president can
07:17do this on his own, whenever he wants, wherever he wants. And that's, that creates the sort of instability
07:25in the economy, which we have right now. And businesses now who are considering investing,
07:33capital investment in plant equipment, how would they know what to predict? And they can't.
07:40So for that kind of almost practical reason, it really is important to stick with the constitutionally
07:49established order of things. Do you think this legal limbo then is almost worse for the economy?
07:56Because if the tariffs were in place, businesses and other people could know exactly what to do.
08:02If they weren't in place, there's a separate route there. But with this limbo, I mean,
08:06people are really confused as to what's going to happen next. Well, they should be confused because
08:12look what's happened. The president decides that he's going to impose tariffs. He makes an announcement.
08:19Then he says, well, wait a second. I'm not going to do it right away. I'm going to do it 30,
08:2330 days from now or 90 days from now or whatever. And then I'm going to have separate deals with this
08:30country and that country. And I'm the big deal maker and I can decide. And what's to, what's to prevent
08:38him from changing his mind? I mean, if the president on his own, simply by signing one piece of paper,
08:46can change the central economic policy and can impose taxes, impose tariffs, and then can decide,
08:53whoops, no, I didn't mean that and change his mind again. How can any business
08:59risk investing in plant and equipment? Who would want to build a factory and employ people in the
09:09United States based on policy that is fickle and changeable as one that's created simply by executive
09:18order? National Economic Council Director Kevin Hassett, he said that if these tariffs,
09:25the IEPA tariffs are struck down by the Supreme Court, this administration is going to pursue
09:30other avenues to keep these tariffs in place, like Section 232. Do you think there's going to be
09:36other legal lawsuits, other legal challenges when it comes to these other avenues they could
09:42potentially explore? Maybe. I mean, there are, Congress has provided
09:50instances in which the president can impose tariffs for various reasons, emergency reasons,
09:58really. But those are clearly stated by Congress. It's not a roving delegation of all taxing power to the
10:06president and its contained delegation. So that's a very, very different matter. Before you and I jumped
10:13in on this interview, I was reading an argument that said that President Trump might not want to win
10:18his tariff case because if the tariffs get struck down by the Supreme Court, it could be a win-win for
10:23him. One, it gets him off the hook of a tariff policy that economists say ultimately is detrimental to
10:29the country. And two, then he could say, hey, my hands were tried. I tried everything I could,
10:34but this was up to the courts and the courts ruled against me. Do you think that there's some truth
10:39to that argument? No, I think that's the basic tactic of President Trump, which is to take credit
10:49for everything and responsibility for nothing. So sure. Yeah. I mean, he's very willing to blame whatever
10:57the Federal Reserve, the courts, whatever he can. Joe Biden, you know, anything that comes to his mind,
11:06he can blame it. But he's the president. He's the one who did this. He's the one who imposed these
11:14massive tariffs globally. I mean, this is not something that's tailored for one particular purpose.
11:23These are global. And then they're imposed on some of our closest allies. So I think it's having a
11:35negative effect on America's standing in the world and a negative effect on the economy. But that really
11:43is beyond the point with regard to the case of case that will be coming before the US Supreme Court,
11:52which is based solely on the constitutional argument, the separation of powers argument,
11:58not on whether tariffs are a good idea or a bad idea.
12:01So will the fact that President Trump says if the Supreme Court rules against this, these will
12:08destroy our country if the tariffs are rolled back. The Solicitor General Sowers said this, that
12:15the president and his cabinet officials have determined that the tariffs are promoting peace
12:19and unprecedented economic prosperity and that the denial of tariff authority would expose our nation
12:24to trade retaliation without effective defenses and thrust America back to the brink of economic
12:30collapse or catastrophe rather. Does the Supreme Court weigh those types of
12:35comments that charged rhetoric at all? Or are they just looking at the constitution?
12:41Well, they should just be looking at the constitution.
12:45I mean, it's not up to the Supreme Court to be a policymaker on economic policy. It's not the job of
12:55the Supreme Court to decide whether the president did something that is, from the standpoint of the
13:03economy, a good idea or a bad idea. That's not the job of the court. The job of the court is to read the
13:09constitution and to apply the constitution to the case at hand.
13:15And you are an expert when it comes to trade policy because during your time serving in the Senate Finance
13:21Committee, you chaired the International Trade Subcommittee. So when you're looking at the tariff
13:27whiplash we've seen really since April, when you're looking at the legal fights on a swath of President
13:33Trump's tariffs, I mean, what do you think this does to his trade policy? And if the Supreme Court
13:38strikes it down, does his trade policy completely unravel? Yes, I think that it would completely
13:47unravel. I mean, he might, in targeted, narrowly defined ways, be able to impose tariffs for the
14:01purpose of an economic emergency that really exists with respect to, say, a particular product.
14:09He might be able to do that, national security, but not broad-gauge tariffs that are global,
14:17that apply to countries all over the world, even, you know, tiny countries. That's a very different matter.
14:26And do you think that the Republican sides of Congress will pick up the mantle for him? Let's
14:32say the Supreme Court strikes this down. And do you think that they would impose tariffs themselves
14:38in the way that President Trump wants? Well, it's harder to do in Congress because,
14:44you know, I mean, you would face in the, in the Senate, the possibility of a filibuster.
14:50So it's harder to do that. Do I think that Republicans would fall in line behind the President? Yes,
14:59because that's what they, they are doing now. I mean, it's as though, why, why have Congress?
15:07You know, I mean, it's, it's as though from the standpoint of the Republican Party, the Republican
15:12party is Donald Trump, and he gives Congress their marching orders. So it's, it's not clear to me how
15:21they justify drawing a paycheck for their, for their extreme inactivity and passivity in all kinds of
15:31ways. But yeah, I mean, I, they would, they would fall in line and they would join him in trying to blame
15:39somebody else for the mess. It, it, it would be, you know, I mean, it would certainly be a challenge if
15:46he has tariffs one day, and then suddenly the Supreme Court says, no, these tariffs are unconstitutional.
15:54But, um, yeah, I mean, I think that the Republican Party in Congress is Donald Trump.
16:00And then as someone who served as a senator, I mean, what happens if that mess happens and,
16:07and the Supreme Court says these tariffs are unconstitutional? What does that type of refund
16:12look like? What does that type of rollback look like? And arguably, maybe most importantly,
16:18what are our other, our allies, our friends and foes abroad looking at us like when they're thinking
16:25about trade with the United States? Okay. Um, I'm not sure how this would be unwound,
16:34you know, how this particular egg would be unscrambled. I don't know. I think that's an
16:39interesting question for the future. Um, with regard to how our allies, uh, view all of this,
16:51um, I mean, all you have to do is look at India, you know, so India now is traipsing over to
17:01China and meeting with, uh, with China and with Putin. And it's created a backlash against the United
17:10States that we've done this and our closest allies. I mean, Canada,
17:18we don't have a closer friend historically than Canada. And now, you know, there's this revolt in
17:28Canada against their neighbor and friend, the United States. So it's a matter of, of America's
17:36standing in the world, creating this kind of animosity is against our national interest, in my opinion.
17:46But that's my opinion that that's not the constitutional issue. The constitutional issue is
17:53very, very straightforward. And it has to do with the concentration of power. This is exactly what
18:01James Madison, who was the chief author of our constitution was concerned about. Madison was
18:10concerned about too much power in too few hands. Well, now if the president is right, he has absolute
18:19power. And in one hand, he has got absolute power to do whatever he wants to do. Then he can do it
18:27whenever he wants to do it. And he can do it today. And then he changes his mind a week from today.
18:34It's a crazy situation. And it is absolutely the opposite of this carefully worked out structure
18:43that had to do with containing power, so that you don't have really, in this case, absolute power in the
18:54hands of one person.
18:57I know that throughout this conversation, throughout our past conversation, you said,
19:01and you continue to say that this is just cut and dry black and white constitutional question.
19:07So if the Supreme Court does take this up, which all signs, according to you, say that they're going to,
19:13I mean, what does that or what does that look like next? What are the next steps? Is it because
19:19you say it's just based on the Constitution, this should be resolved pretty quickly,
19:22or is this going to take months and months? What does that timeline look like?
19:26Well, I mean, the Supreme Court can take quite a long time, but I don't think it would in this case.
19:31I think it would recognize that, you know, this is really, this is a very big deal
19:38relating to the future of the country and how we handle the situation. So I do believe that the
19:46Supreme Court will take it up quickly, now quickly relative to how other cases can proceed. That's a
19:56different matter. But I'd say it would be a matter of months, certainly not, certainly not as long as a
20:05year, I don't think. And then my last question to you is, do you think their decision sets a precedent
20:12for the way President Trump governs for the next three years of his term? If the Supreme Court
20:18strikes this down, do you think he plays more within the guidelines of the Constitution? If not?
20:25No. No. No. No. I think he views himself as uniquely brilliant and specially gifted and the people
20:41elected him to be president and that he assumes absolutely as much power as he can assume.
20:49So will it change his behavior? I can't imagine that it will. I think his behavior will be the same
20:58and he will, he could create a constitutional crisis, I suppose. He could say, well, you know,
21:07Andrew Jackson was alleged to have said, well, the Supreme Court has decided, let them enforce it.
21:13But no, I think he's, he's going to continue to be Donald Trump.
21:20Well, there's certainly a lot to look out for when and if the Supreme Court takes this up and what's
21:26next for the legal fight for President Trump's tariffs. Senator Danforth, I appreciate the
21:31conversation, your expertise and insight per usual. And I hope you can join me once again. Thank you for
21:36the conversation. Thank you.
Recommended
1:06
|
Up next
2:55
0:53
0:29
1:14
1:11
Be the first to comment