00:00Some people like to give you a quick opinion about something like this.
00:06This is the Supreme Court decision opinion on tariffs.
00:11Here's the problem.
00:15There's opinions within opinions.
00:19It's a mess.
00:21First, there was no need for the court to rule as it did.
00:26Period.
00:27The majority is not even a majority, except in agreeing to hold that the tariffs were not authorized by Congress
00:36in a 1977 law.
00:38Second, the majority is split into two camps.
00:41You've got Roberts, Gorsuch, and Barrett.
00:45And then that camp is split somewhat between Gorsuch and Barrett.
00:50Third, the three other justices in the second camp of the majority, the usual leftists, while they mostly agreed with
00:58each other, but went further in attacking the president's tariff authority, I can assure you they wouldn't have done it
01:04with a Biden or Obama.
01:06Number four, this explains why it took so long for the court to issue a ruling, because the ruling appears
01:13to be a variety of arguments intended to reach a result.
01:17That is, in my view, it was result-oriented, a result looking for a constitutional and or legal justification.
01:28Now, fifth, if the court, as here, is going to issue a ruling that is so destructive of or contrary
01:35to the executive's international economic, national security, and foreign policy objectives, and the president's strategies,
01:43the president and we, the people, deserve a lot better than the massive mess that these nine lawyers created.
01:52This ruling is more like some committee of lawyers or some law review group of legal students in the law
02:00library,
02:00each vying to impose his or her own policy preferences on the president, while searching for some constitutional and legal
02:08justifications to do so.
02:11In fact, this case was not complicated at all, although the decision, which is actually an accumulation of arguments within
02:18the court,
02:19is complicated because of its incoherence.
02:24Six, the court majority wants you to believe that this was a matter of statutory interpretation only,
02:31involving one statute passed in 1977 and Congress's power over the purse.
02:38Article 1, Article 1, Section 8.
02:40That's it.
02:41Well, then why did it take 177 pages?
02:44But there's more.
02:46But Congresses have passed multiple statutes and even more.
02:51Historically, presidents have used all kinds of trade tools to influence and affect international commerce,
02:58foreign policy, and national security.
03:01It simply does not just come down to the powers of the purse.
03:07Article 2, Section 1 gives the president great power over conducting foreign policy.
03:14What are tariffs?
03:17Tariffs are effectively taxes imposed on foreign governments.
03:22Well, isn't that foreign policy?
03:25Yes.
03:26And when the president uses tariffs to influence foreign governments,
03:31whether it's over war and peace, whether it's over economic policy, whatever it's over,
03:36is that not the conduct of foreign policy?
03:39Of course it is.
03:40Seventh, the court bobbed and weaved, touching on congressional delegation or non-delegation,
03:46cherry-picking the historical record where presidents have imposed tariffs and other international trade tools
03:52to influence and affect foreign policy,
03:55with the majority, we think, essentially ignoring or rejecting all contrary precedent in history.
04:03All precedent in history that came before is essentially written off.
04:09Number eight, the Chief Justice of the United States, John Roberts,
04:14Bluntly states that when he reads the text of the 1977 statute at issue,
04:22even those words specifically authorizing the president to, quote,
04:28regulate importation, it's in the statute.
04:31They're in the law.
04:34And in fact, are in several other laws, by the way,
04:38authorizing the president to impose tariffs.
04:40In this case, he says,
04:44there are just too many words between the words regulate and importation.
04:49Got that?
04:50Too many words between the word regulate, importation.
04:54For him to draw the conclusion that this particular statute authorized the president to regulate importation.
05:02Ninth, Justice Thomas went through the history of presidential power and tariffs,
05:07as meticulously, as he always does.
05:09And that makes clear that President Trump has, in fact,
05:13been acting within the powers traditionally exercised by past presidents.
05:17Now, I know people who are opposed to tariffs say,
05:20oh, that's not true.
05:21But it is true.
05:22So, what we're discussing here is the constitution and the law,
05:25not policy preferences.
05:28And who makes those decisions?
05:32Six justices on the Supreme Court who can barely write a single majority opinion?
05:39In fact, they don't.
05:41Tenth, Justice Kavanaugh was brilliant in his dissent,
05:45and he went through the statutory history of delegations to presidents,
05:49of tariff powers, as well as other points,
05:51making clear that the president was, in fact,
05:55delegated authority under that 1977 statute to, quote,
06:01regulate importations.
06:03Shame on Chief Justice Roberts.
06:05Shame on Justices Barrett and Gorsuch.
06:08Your word games and semantical ruminations had no place here.
06:13I was left thinking how lawyers can become so typically absurd
06:19when trying to prove how brilliant they are
06:21or when, in fact, their egos get in the way of well-reasoned outcomes.
06:26And you can see that in some of the back and forth.
06:29It's really kind of appalling.
06:32Twelve, the Chief Justice appears to have come up with a so-called majority opinion
06:37that is as narrow as possible in order to attract enough votes
06:41to overturn the tariffs, at least under this one statute.
06:45But in doing so, he did not show leadership.
06:49He created a big mess.
06:52This so-called majority opinion provides no precedential value.
06:56It provides no constitutional or legal guidance.
06:59It says the court does not have the authority or ability to get involved in policy,
07:04yet I found this ruling to be more about policy than the Constitution or law.
07:08The majority had a problem, which I knew they would.
07:11On the several occasions, I've discussed this case with you right on this show.
07:16Where exactly is the separation of powers?
07:19Where is that line drawn when it comes to tariffs?
07:23Yes, Congress has the power of the purse.
07:26The President has broad power over foreign policy and national security and diplomacy.
07:31Obviously, trade and its relationship to the President's broad powers cannot be ignored.
07:39Yet the ruling essentially does that, but then the court says they're not doing that.
07:44It's just ruling on a single statute.
07:48In other words, the court's ruling was, as I said, result-oriented, policy-driven,
07:54despite the majority's disclaimers.
07:56And when the Supreme Court cannot come up with a coherent, understandable decision
08:02based on the Constitution and the law, you know then it is conducting itself as politicians,
08:09it is activists, and it has no business doing what this court did.
08:15It interfered in a matter that should be left to the legislative and executive branches
08:19because the constitutional question on who gets to lay tariffs
08:26is, in fact, an absurd question.
08:30What do you mean, Mark?
08:32Because both Congress and the President have a role.
08:36And if Congress thought the President went too far,
08:40it could use the power of the purse,
08:43the appropriations process, under Article 1,
08:47to stop him.
08:49As I've said here repeatedly, Congress didn't even try.
08:54And so this is the mix and the battle between the elected branches
08:58and to have basically six lawyers, a majority,
09:03who can't really come up with a single theory,
09:08get involved and decide one way or another,
09:12is appalling.
09:14It's absurd.
09:15So where are we now?
09:16Now, it's a foolish overreach by the Supreme Court.
09:20There was a piece written by Stan Valger and Clark Packard a few months back,
09:27the American Enterprise Institute,
09:29and boy, do they hate tariffs.
09:31That's fine.
09:32That's their view.
09:33They hate tariffs.
09:35They hate all these manipulations or involvement in trade and so forth and so on.
09:42And yet, in their piece,
09:45while they're haranguing against the President's tariffs,
09:48they also provide the following,
09:50which is actually quite interesting.
09:53And they point out,
09:55the first Trump administration imposed tariffs,
09:57usually at 25%,
09:59on some two-thirds of imports from China,
10:01under Section 301 of the Trade Act in 1974.
10:04They're telling us,
10:05actually,
10:06the President has many alternatives to that one statute that the court,
10:09we think,
10:10ruled on.
10:11The Biden administration kept these measures largely intact,
10:14used the existing authority to layer on other tariffs,
10:17including 100% duties on Chinese electric vehicles.
10:20Most of these tariffs continue to this day.
10:23Because of the Section 301 measures,
10:26the effective tariff on imports from China remains particularly high,
10:29around 50%.
10:31Section 232 tariffs would also survive an administration loss
10:35in learning resources versus Trump.
10:38Under Section 232 of the Trade Expansion Act of 1962,
10:42the President may restrict imports determined to pose a threat to national security
10:47following an investigation by the Commerce Department.
10:50They go on.
10:51Section 122 of the Trade Act of 1974,
10:55The provision empowers the President to address large and serious balance of payments deficits
11:00through import surcharges of up to 15% import quotas,
11:05or some combination of the two.
11:07Wow!
11:08Section 301,
11:09the basis for existing China tariffs,
11:12offers another avenue for reconstructing the tariffs that the court struck down,
11:17one where the President enjoys wide unilateral authority.
11:20It grants the U.S. trade representative broad authority to investigate and remedy
11:25unfair foreign trade practices.
11:28That's not all.
11:29The old 1930 Smoot-Hawley Act,
11:31I know we don't like it,
11:32I'm just saying what's available.
11:34Now,
11:35it lets the President impose tariffs of up to 50% on imports
11:39from countries that discriminate against U.S. commerce
11:42as compared to other nations.
11:44So what exactly did the Supreme Court accomplish?
11:47Nothing.
11:49It created a mess
11:51in terms of tariffs that have been paid,
11:54the President can follow other avenues if he wishes.
11:58I would argue that constitutionally he has the authority to do what he's doing,
12:02whether people like it or not,
12:03and Congress has the constitutional power to try and check that,
12:07and those lawyers on the Supreme Court had no business getting involved.
12:11They should have done what I said,
12:14not because I said it,
12:15because it would have been right,
12:16which was reverse the lower court
12:18that found those tariffs illegal,
12:21tell the judiciary below,
12:25stay out of this.
12:26The court should say,
12:28we're going to stay out of it,
12:29because this really isn't justiciable
12:32in any rational or logical way.
12:34It hasn't really played out.
12:36It may never play out.
12:38It hasn't played out
12:39in 200 years and more
12:41of American constitutional history.
12:44But the court jumped in
12:45and they created a big splash,
12:48a big mess,
12:49and achieved nothing but chaos.
12:51We're going to stay out of it.
12:51We're going to stay out of it.
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