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[MUSIC]

Transcribed automatically. Expect errors in names and numbers.

[MUSIC]

Transcribed automatically. Expect errors in names and numbers.

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

Transcribed automatically. Expect errors in names and numbers.