Ep 207 — Tariff Decisions Reveals SCOTUS Slapfight

This is terrible. This is terrible. Don't kill anybody. And I'm so sorry for these poor children. The official position of the Law and Chaos podcast, do not kill anybody. Okay. Welcome to Law and Chaos, where the tariffs are illegal and the Supreme Court justices hate each other's guts, and Judge Eileen Cannon remains a spectacular hack. We've got a lot to cover, so let's get after it. Hey, guys, I'm Liz Steyer, and with me as always is Andrew Torres. Andrew, how are you? Hey, Liz, I am great. Did you have a nice weekend? Are you at least pleased that the snow has melted quickly? I am very pleased. Snow is bullshit. When it was coming down like that last night. I was like, you've got to be kidding. I know. All right. We're going to mostly talk today about the tariff decision that came down on Friday. But before that, I want to announce that we're having a new segment. You guys so enjoyed Andrew's solo outing where he discussed Atari and antitrust and computer motherboard manufacturers that we're going to make it a monthly thing for subscribers. You guys will get to enjoy Andrew. I think next month's is going to be Magic the Gathering? Oh, Magic the Gathering by popular request. All right. So looking forward to that, that will be available to all subscribers on patreon.com slash lawandchaospod or on Substack at lawandchaospod.com. Yeah. And let me just say that we always say, take care of you when you were first. So if you're a student, if you're struggling, if you can't afford to give us a bucket episode on Patreon, just reach out to me if you really want the magic, the gathering, and you can't afford it. I'd be happy to send you a copy. I know I shouldn't help us evade our unsubscriber bonus, but there you go. All right. We're going to talk about the tariffs now. We've got the deepest of dives. But before that, Okay, I regret to reform you. The judge Eileen Cannon is back on her bullshit. Boy, is she ever. As you all recall, the special counsel statute required Jack Smith to produce a final report, which should have been turned over to Congress. But before that, in July of 2024, Judge Cannon dismissed the stolen documents case on the theory that special counsels are unlegal. That decision was appealed to the 11th Circuit. But on the eve of the election, as Jack Smith was preparing to turn over his report to Congress and close up shop, Cannon interceded and blocked the release of volume two, which which dealt with the stolen documents case. The putative justification for that was that at the time, the criminal cases against Trump's henchmen, Walt Nauta and Carlos de Oliveira were still pending. But not the case against Trump, which was, of course, dropped after Trump won in November, along with the election interference case in D.C. The report on that investigation was turned over to Congress. OK, but then five seconds after being sworn in, Pam Bondi dropped the appeal of Smith's disqualification and she dropped the charges against Nauda and De Oliveira, which were the justification for keeping volume two bottled up. But at that point, the government switched sides and took the position that volume two should remain sealed forever or possibly even destroyed, which obviously Trump in his individual capacity and his henchmen agreed with. Yeah. And at the same time, the Knight First Amendment Institute at Columbia University and the government watchdog group American Oversight have been trying to intervene in this case for a year now. Judge Cannon totally ignored them as putative interveners for six months. So they went to the 11th Circuit, which instructed her to rule already in November of 2025. In December, she finally formally rejected the motion to intervene. Knight and American Oversight appealed that to the 11th Circuit. And last week, they asked for a mandamus ruling staying lower court proceedings because they worry, this is some foreshadowing, that Judge Cannon will order the destruction of volume two in its entirety. And then their motion to intervene will become moot. And then Trump and the Department of Justice working in cahoots filed this indignant motion saying this is too much and how dare they and please put an end to this charade by, you know, barring release of volume two forever and in perpetuity throughout the universe, which is what Judge Cannon did this morning. Yes, she also made a lot of angry words about Smith defying her because she said his appointment was illegal. And at that point, he was supposed to put his pen down and stop working, which is just stupid. Right. She did have the authority to dismiss the case. No one argues that she didn't. What she didn't have the authority to do was make him stop working. I mean, well, let me caveat that. It might have been within her remit. That's not a settled issue, but she was never asked. And that's why she didn't do it. So he didn't have to stop working. Nonetheless, she accuses Smith of impropriety because he disobeyed her and did what he was required to do by statute. Notably, this view of following the judge's instructions is not a position taken by the Department of Justice in the disqualification of Lindsay Halligan. Oh, interesting. Say more there. Yeah, well, as we've discussed here at length, at least seven separate courts have ruled that Trump's cronies were illegally appointed as U.S. attorneys in blue states without Senate approval. And in multiple cases, the Department of Justice took the position that a ruling disqualifying these losers was only binding on that particular case and had no bearing in any other matter. And specifically, Lindsay Halligan continued to sign her name as U.S. attorney for the Eastern District of Virginia. She didn't stop working because the position that the Department of Justice took was that Judge Cameron Curry saying that Halligan was illegally appointed in the James Comey and Letitia James prosecutions only counted within those two cases, not for other cases, even in the same district. They took the same position with Alina Habba in New Jersey. Look, it's not an exact match since Special Counsel Jack Smith was only working the Trump cases. No, I think it's a perfect fit. Judge Kennan dismissed the Trump case and Smith abided by that ruling. He did not try to refile it. He did not try and indict someone else. He wrote his report as instructed by the AG in Washington, D.C. That's totally outside her remit. So I think your analogy to the U.S. attorney's cases is wholly apt. Right. Judge Curry didn't say, Lindsay Halligan, you get out of EDVA and stop working. She said, you can't sign your name in court as U.S. attorney. Right. You can't do in court action. So I think it's exactly the same thing. I mean, Smith didn't do anything in court. He wasn't allowed to do. This is this is just Judge Cannon wanting to do a solid for Trump. No argument there. I also like it in the sense that I hate how Judge Cannon called this the First Knight Institute. I mean, you know, a plus work by her. Anyway, I suppose the 11th Circuit could reverse this at the behest of the First Knights and the American Overseer. Yeah. Yeah. But I wouldn't put money on it. I suppose that if Congress were under Democratic control, they would have standing to intervene and challenge and seek emergency relief. But I got to tell you, I think that ship will have sailed by the time Hakeem Jeffries takes back the gavel in January of 2027. The statute of limitations effectively will have run. Oh, and while we're speaking of unlawfully appointed special counsels, the judges in the Eastern District of Virginia exercised their lawful authority to appoint a U.S. attorney under 28 U.S.C. 546D since that position is vacant. They appointed a lawyer named James Hundley. He has three decades of prosecutorial experience, after which the Department of Justice fired him in about 30 minutes. Yeah. And of course, the White House and Todd Blanche, the deputy AG, dunked all over him on Twitter. It's like so performatively greasy and vile. OK, we are not regularly in the business of covering local crime. But this case in Utah came across my timeline and it is wild. It involves a woman named Corey Richardson who murdered her. husband. Allegedly. Oh, okay. Allegedly. The state is trying to prove that to a jury, which started today. Prosecutors say that Corey Richardson asked the house cleaner to get her fentanyl pills, which she gave to her husband in a sandwich on Valentine's Day in 2022. He was indeed sickened, but did not die at that time. So she went back to the dealer and bought more pills. And then on March 11th, she tried again, slipping those pills into a Moscow mule of all things, and this time she did manage to actually kill him. Prosecutors say that she wanted to leave and start a new life with her boyfriend, taking her three children and her husband's money. I guess that explains why she didn't just leave. She wouldn't have gotten the money. Seems a bit extreme, not going to lie. Wait for it. In 2023, the year after she allegedly killed her husband, richens published a children's book about coping with grief after the death of a parent here's the description from goodreads wherever you go whoever you become their love remains with you a heartwarming and reassuring book that gently guides children through the difficult experience of losing a loved one written by a loving mother who personally faced this challenge this book is designed to offer comfort and solace to young minds in a way that is both accessible and engaging. With vivid and colorful illustrations, Are You With Me follows the story of a child who has lost their father, but who is reminded that his presence still exists all around them, just like an angel watching over them. Whether it's playing at the park or simply enjoying a quiet moment at home, the child is comforted by the knowledge that their father is always by their side. God admit, did not see that one coming. No, no, no. Let me read some of the reviews. This book is a killer. It will take your breath away so good that it's simply murder. The author clearly knows all about death on a deeply intimate level. When I finished, I felt like I'd been poisoned to death with fentanyl by a loved one. It's that powerful. I can honestly say it kicks harder than a Moscow mule. I like the idea of knowing that the father is kind of always lurking over, but like not what's in the thought bubble above his head. Okay, here's another. This book should be flagged on Goodreads. I don't know what the flag would be except when someone murders her husband and writes a book, there should be a flag. Oh, my God. I mean, not wrong. I have to say, I just Googled it. You guys, the cover of this book has the dad popping out from behind the cloud with a halo and wigs to cheer on the little boy playing sucker. this woman is pure chaos this is terrible this is i mean this is a woman who her theory of the case is that her husband took weed gummies and those weed gummies must have been laced with fentanyl i mean when when you have a ham and fentanyl sandwich on valentine's day wash it down with i would think the pills would be rattling around in the bottom of the copper mug? I can't. What do you want from me? I don't know from fentanyl. All I know is that the cops, every time they get near anybody, they like swoon and have, you know, sympathetic vapors. So I guess fentanyl is that strong. Okay. It puts you up in the clouds popping out from behind. This is terrible. This is terrible. Don't kill anybody. And I'm so sorry for these poor children. The official position of the Long Chaos Podcast, do not kill anybody. Okay. Moving on, we're going to go to California where Elon Musk is being sued by a group of investors who lost money on Twitter stock back in 2022 and claim that that was due to Musk violating securities law. Remember, Elon had offered to buy Twitter and then he was trying to back out of the deal. And one of the things that he did when he was trying to do that was post a lot of crazy, untruthful stuff about Twitter being overrun by bots in an attempt to tank the stock, which he did. He also failed to publicly disclose that he'd amassed more than 9% of the company's stock, which he was supposed to do under the SEC rules. Yeah, that sounds like the Elon Musk we have all come to know and hate. Well, yes. And that's why it's virtually impossible to seat a jury. This case is in front of Judge Charles Breyer in the Central District of California, and he is having a hell of a time fighting enough people who do not hate Elon Musk so that they could sit on a panel and judge him. And as only a jury of nine, apparently in California, you don't need 12 for civil trials. But there are not nine people in the greater Los Angeles metropolitan area who do not despise Elon Musk, I suppose. I mean, girl, same. I really love the juror who said, in a criminal trial, I would feel morally obligated to convict. However, in a civil trial, I could set those views aside. But I believe it would be to the benefit of the human race for Mr. Musk to be sent to prison. Two votes! Yeah. She got struck. Yeah, I mean, you think. Okay, so thank you to reader David Remes for flagging that fun one for us. We do appreciate and read your messages and comments. And since it is Tuesday, let us shout out our new subscribers. On Substack at lawandchaospod.com, thank you to Kareem McDaniels, JDN, Jeremy Abraham, and Chris Scapa. Or Shapa, I appreciate you either way. And on patreon.com slash lawandchaospod, a big thank you to Scott Keenan, Laurie Higgins, Jeremy Moore, Rachel Ostrow, and Lauren Wiedel or Weddle. I appreciate you either way. As do I. As do I. And if you'd like to join their ranks, if you'd like to get your name shouted out here, you know what to do. Head on over to patreon.com slash law. Sign up to give us as little as a buck an episode and you will support the project. You will get our bonus episodes. You will get extended episodes, ad free, all that good stuff. For everybody else, we're going to take a quick ad break, and we will be right back. and we're back to return to our regularly scheduled doom scrolling the fifth circuit is back on its fifth circuit bullshit andrew do you do you have a thought about this one funny yes i the resident atheist on this podcast have some thoughts i have written about this a lot for our blog at lawandchaospod.com. I've talked about it on the show. This is a very straightforward case challenging Louisiana's blatantly unconstitutional law, requiring every public school classroom to display the Ten Commandments, and in particular, the Protestant version of the Ten Commandments. It was blocked by a trial court. And then, I'll call it divine providence, on appeal, happened to get the most liberal panel possible at the Fifth Circuit, which upheld the trial court's injunction, blocked it for violating the Establishment Clause. This case presents literally the exact same fact pattern as a case called Stone v. Graham, where the Supreme Court blocked mandatory Ten Commandments displays in Kentucky way back in 1980. But now, thanks to Chief Justice Roberts and his Christian nationalist howler monkeys on the Supreme Court, no one is quite sure of the state of any of these Establishment Clause cases. But we do know that the only court that can decide is in Washington, D.C. at 1 First Street. For everyone else, including the Fifth Circuit, Stone v. Graham is still good law. Oh, like that ever stopped the Fifth Circuit. True. But what a real court would do, instead of saying to Louisiana, look, sorry, we got to affirm here. Take up any issues you have with Stone v. Graham at the Supreme Court. They said, oh, actually, this case isn't ripe for challenge yet because none of the schools have hung up one of these Ten Commandments displays. So no one has been injured yet. Why don't you try doing that and then see what happens? So, I mean, functionally, they invited the state of Louisiana to violate the constitutional rights of each and every student in the state and keep on doing it until some court makes them stop. I hate it. And I also hate that I believe there is an identical law in Texas at the moment. They're being replicated across the country because why not take your shot? And again, they're going to be replicated in red states across the country. Okay. Well, we're going to spend most of today talking about the Supreme Court's tariff holding, which was a hot, hot mess. Good result. But one of the things that becomes clear when you read this 170 page collection of opinions is that these justices despise each other. It's not just that the liberals hate the conservative. Like if Sam Alito does not retire this summer, as he is rumored to be considered, it will be out of spite for his fellow conservatives. Truth. He's going to say, I'm not walking away and letting these spineless wimps have the last word. I agree. It is clear that even though he's the only one willing to be quite so vituperative about his colleagues in public, these justices mostly despise each other. I don't think that the liberal justices despise each other, but I think the conservatives mostly despise each other and they certainly despise the liberals. But interestingly, Alito and Sotomayor were the only ones who did not write separate opinions in the tariff case. But before we get to the rationale for the decision and the fallout, I want to talk about the animus between the justices, which is really on display in this opinion. So first, there's this cleavage between the conservatives themselves over something called the non-delegation doctrine and the so-called major questions doctrine. Those are related constitutional theories about how Congress can or cannot delegate its power to the executive. So under the non-delegation doctrine, Congress could not pass a law saying we're giving our power over the budget to the president because taxation and spending are powers which are vested in the legislature under the Constitution. OK, so far so normal. But then the Roberts court decided that it wanted to block Democratic presidents from doing stuff. So the conservatives dummied up this thing called the major questions doctrine. They say that when it comes to major questions, Congress must delegate its power very clearly to the executive. And if it doesn't, then the executive cannot act or whatever the executive does can be conveniently crossed out by the Supreme Court. Who will decide what counts as a major question? Who gets to decide what is very clearly a permission slip from Congress to the president? Why? It's the Supreme Court after the fact. So it is not enough. The 2022 decision that invented this doctrine said that it was not enough for Congress to say we want the president to regulate pollution. If that delegation did not say, including carbon dioxide, that he can't do anything to regulate carbon dioxide. AKA greenhouse gases. Right. Which is a neat trick if you're the conservatives who just solidified what's going to be a majority for probably a generation. Yeah. Not if we do something. Not if we do something about it. Okay. So the tariff ruling was 6-3, but it was hugely fractured over the major questions doctrine. So let's start with the liberals. They think the major question doctrine is bullshit. Because it is. Right. So Justice Kagan wrote for the majority. She said, straight up statutory construction resolves this case for me. I need no major questions thumb on the interpretive scales. Also, she had this hilarious footnote where she snarked that Justice Gorsuch claims not to understand this statement, insisting that I now must be applying the major questions doctrine and his own version of it to boot. Given how strong his apparent desire for converts, I almost regret to inform him that I am not one, but that is the fact of the matter. I'll let Justice Gorsuch relitigate on his own our old debates about other statutes unrelated to the one before us. What matters here is only that IEPA's delegation refutes the executive's assertion of authority to levy tariffs without any help from the major questions doctrine. From which you may infer that Justice Gorsuch was being very weird about the major questions doctrine in his own concurrence. In fact, he called out every other justice on the Supreme Court by name except Chief Justice Roberts. Although I got to say he was the most aggressive towards his female colleagues, particularly Justice Barrett. Yeah. So we got to have to rewind the tape a minute to understand what is going on here. We have to go back, in fact, to 2015 when Justice Elena Kagan gave this lecture slash interview at Harvard Law School as part of what was called the Antonin Scalia lecture series, in which she famously said, we are all textuals now. It's actually pretty shocking in context. So let's listen to this clip. So I think Justice Scalia is an incredibly important figure in the court in many ways. I mean, we all sort of like to think, oh, we're Supreme Court justices, that kind of, you know. You are. Yeah. You know, the truth of the matter is you wake up in 100 years and most people are not going to know most of our names. But I think that that is really not the case with Justice Scalia, who I think is going to go down as one of the most important, most historic figures in the court. And there are a whole number of reasons for that, which, you know, this is about statutes. So let's just, but I think the primary reason for that is that Justice Scalia has taught everybody how to do statutory interpretation differently. And I really do mean pretty much taught everybody. You know, there's that classic phrase that we're all realists now. Well, I think we're all textualists now in a way that just, you know, was was not remotely true when Justice Scalia joins the bench. Yeah. So that's Justice Kagan saying that Antonin Scalia's deeply right wing judicial philosophy radically transformed how judges left, right and center analyze the meaning of the law. Instead of asking what Congress meant, judges now focused on what Congress said. Liz, We sometimes talk about how Donald Trump and Chief Justice John Roberts have radicalized Justice Kagan, and that's because she was appointed to the bench in 2010, and she spent her first decade plus as a moderate academic wonk trying to pretend that the Supreme Court was a functioning institution with real rules, albeit ones that were written by Antonin Scalia. Yeah. And then the Supreme Court decided that case, West Virginia v. EPA in 2022, which invented the major questions doctrine, which is basically a declaration that the rules were going to be whatever the conservative justices said they were, and they weren't going to bother about precedent or even pretend that they were doing something intellectually consistent. And in that case, Kagan wrote the first, but definitely not the last of many impassioned dissents, which called out these right wing colleagues as practicing ideology rather than principled textualism, the one that they all had agreed that that's what they were doing. Yeah. She said, some years ago, I remarked that we are all textualists now. It seems I was wrong. with the current court is textualist. Only when being so suits it, when that method would frustrate broader goals, special canons like the major questions doctrine magically appear as get out of text free cards. Today, one of these broader goals makes itself clear, prevent agencies from doing important work, even though that is what Congress directed. That anti-administrative state stance shows up in the majority opinion and it suffuses the concurrence, by which she meant the Gorsuch concurrence. So this was Kagan telling Gorsuch, I knew Antonin Scalia. Antonin Scalia was a friend of mine. And Neil, you're no Antonin Scalia, which he is not. And now the other piece of the puzzle is that Justice Barrett clerked for Antonin Scalia back in 1998. He had publicly called her his protege. She has publicly called him her mentor. No justice on the Supreme Court wants more to actually be like Antonin Scalia than Amy Coney Barrett. And so here you have Justice Kagan saying that the major questions doctrine isn't something Scalia would have signed on to. You're not interpreting the text. You're putting a thumb on the scale against the executive branch doing things, even if Congress directed it to do so. And I think that's reflected in Barrett's concurrence, right? She still doesn't want to give up the major questions doctrine. She's still deeply conservative. But you can see her saying, if Congress tells the executive branch to do things, Justice Barrett asks, why should we get in the way? Direct quote. Right. So that brings us to the three conservative justices who wrote the majority holding. It was a Roberts holding. They agreed with the liberal statutory finding, which we'll talk about in a minute. But also they said that the major questions doctrine means that Congress has to speak very, very clearly when it delegates something important like tariffs to the president and it didn't here. That's why Gorsuch was like, see, you said it wasn't a clear delegation of power, Elena. That's major questions doctrine. I win. She is so much smarter than he is, and he will never not be mad about that. No, but he was really super nasty to Barrett, and she's on his side. True. Okay, so this is kind of a fine distinction, and it is based on Gorsuch falling so in love with his own ideas that he sometimes ends up going against his own hyper-partisan interests. Yeah, I've always been convinced that's what happened with Bostock v. Clayton County. That's where he wrote the opinion saying that discrimination against trans people was discrimination on the basis of sex. I mean, he's since reversed that position. But you do see Gorsuch do that sometimes, particularly when it comes to Native American issues. He's like, I'm a man of the West. I'm a rugged individualist who like understands the people of the West. He's got weird. He did. He did spend a lot of time in Colorado. But like, calm down, dork. You graduated from Georgetown prep just like Kavanaugh. This isn't Andrew was wrong. I so wanted to believe that Bostock was something else and it was not. You are absolutely right. Anyway, Gorsuch is in love with his intellectual perceived superiority and this major questions doctrine, which just so happens to give him and the court's other right wing justices an enormous amount of power. So he is super aggressive about policing the boundaries of it. And Justice Barrett sort of pushed back a little bit on the major questions doctrine in the way that it's being used. Essentially, her position was, look, if Congress makes an explicit delegation of power, it's not our job to get in the way. We just need to make sure that there's a balance on both sides of the scale. Right. if Congress wants to empower the executive to do a big thing, it must speak clearly. That is paraphrasing an aphorism from Antonin Scalia, the we don't hide elephants in mouse holes. But Gorsuch isn't happy with even this minor rephrasing of the major questions doctrine, because how can you fail to see how marvelous and perfect Neil's big idea is? So he spends, I'm not making this up, 10 pages sneering at Barrett. He particularly makes fun of her for saying that this is a question of common sense in interpretation. The word common sense appears in this opinion 11 times, none of them by Justice Barrett. Gorsuch is yelling at Barrett about something she wrote in a concurrence three years ago in the decision nixing Biden's student loan forgiveness, which, by the way, she was on his side as a concurrence, right? Which goes to show you how long this feud has been simmering. So she wrote a concurrence that says, oh, my God, Neil, get a hold of yourself. Right. OK. So Roberts wrote the majority opinion. Kagan wrote for the liberals. Gorsuch wrote for himself to yell at everyone and say how stupid they all are, including Thomas Alito and Kavanaugh, because they can't even see that the major questions doctrine is so perfect that sometimes you really have to apply it against Republicans. Barrett wrote a concurrence to tell Forsuch to get bent. Thomas wrote a dissent. And Kavanaugh wrote the principal dissent joined by Thomas and Alito. Plus, Justice Jackson wrote a brief concurrence saying, this is nuts. What is wrong with you people? And I know you love this, Andrew. I do. Okay, that was a lot of can't tell the players without a program. But seriously, Justice Jackson is the smartest justice on the bench today. And she's the most willing to call bullshit that the emperor has no clothes. Yeah. So Andrew's going to break down that Jackson concurrence in the subscriber bonus. That will be for you guys who are subscribers at patreon.com slash law and chaos pod or law and chaos pod dot com. For everyone else we going to go to a quick ad break and we will see you on the other side And we're back. OK, so that brings us to the three dissenters whose positions can be summed up as essentially we want Trump to win. And so the major questions doctrine doesn't apply here for reasons I have just pulled out of my ass. You are not exaggerating. I mean, Justice Thomas says that imposing levies is not a core congressional power and is thus not subject to the non-delegation doctrine. I mean, leave aside the fact that taxation and levies are the same thing. And that is obviously one of Congress's core powers. Right. But let's play along about core congressional powers. Isn't that basically moving the goalposts? Right. Instead of the justices arrogating to themselves the power to define what is a major question. Instead, they're staking their claim around the word core. Like, well, then what is core? It's all subjective. It's all angels dancing on a pinhead. Right. And Kavanaugh in the principal dissent says that the non-delegation doctrine does not apply in a foreign policy or national security context, which is just something he made up. You see, a centaur is a half man, half horse, and a minotaur is a half man, half bull. So in a battle to the death, the minotaur would definitely win. Only a fool would say otherwise. You didn't touch 13th base by the mystery. Right. Like, OK, so Kavanaugh, Thomas and Alito, for various invented reasons, all agree that IEPA does to give the president the power to impose tariffs, which is why the majority opinion correctly accuses them of just parroting the government's position word for word in the same order, which is a pretty serious shade from the chief justice. Right. So we've spent a long time talking about this, but TLDR, these people hate each other and they are locked in this room together forever. Well, we fix that. Okay. So that brings us at long last to the actual holding, the reasoning in this case. It was a 6-3 decision written by Chief Justice John Roberts. He said that the International Emergency Economic Powers Act of 1977, affectionately referred to as AIPA, we've said it a bunch of times on the show, does not give the president the power to impose tariffs. And the reason that got six votes is straightforward. So IEP is 50 U.S.C. section 1702 subsection A1B says that the president, in response to a declared emergency, may and I do want to read all of this. So forgive me. May investigate, block during the pendency of an investigation, regulate, direct and compel, nullify, void, prevent or prohibit any acquisition, holding, withholding, use, transfer, withdrawal, transportation, importation or exportation of or dealing in or exercising any right or power or privilege with respect to or to transactions involving any property in which any foreign country or any national thereof has any interest by any person or with respect to any property subject to the jurisdiction of the United States. I mean, there's a lot. But I'm glad you read it because it highlights just how strained this argument has been from the jump. The Trump administration took this position that regulate in the middle of that long statute, followed by this 16 word ellipsis before the word importation should be read as saying that the statute allows the president to regulate importation, which they assume means tariffs. And since taxes are a kind of regulation, ipso fatso, the president has the power to impose tariffs. And the majority opinion says, like, no, that's ridiculous. Don't we don't read that law that way. Regulate importation, regulate dot, dot, dot, dot, dot, dot, dot, dot, dot. Importation does not mean the power to impose tariffs on imports from any country of any product at any rate for any amount of time. As Chief Justice Roberts put it, these words cannot bear such weight. And he does point out that Trump imposed all of these erratic and ever shifting tariffs relying on AIPA. And the law could not possibly mean you could just, you know, tariff Switzerland because you think somebody in the Swiss government is mean to you. So, OK, that is that's the part of the holding that got six votes. Yeah. For good measure, the majority also noted that no president, including Donald Trump in his first term, ever thought I gave them the power to impose any tariffs. And this is a direct quote, let alone tariffs of this magnitude and scope, even as past presidents have routinely invoked I before its actual purpose, which is to freeze hostile foreign bank accounts in the United States. And so, too, the converse. Prior presidents, including Donald Trump in his first term, have imposed temporary tariffs under various other statutes, but none of them have ever cited AIPA as a basis for doing so. So bottom line, six justices thought it was beyond obvious that the plain language of IEPA did not authorize the president to like erratically impose tariffs at his at his will, which like, you know, shit. That's how everyone knew this was going to shake out in November when the case was argued, although at the time, actually, we thought Kavanaugh might not go full MAGA. Yeah. But since everybody knew this and it was a foregone conclusion, what was the point of this exercise, which wound up costing taxpayers hundreds of billions of dollars. Yeah, I think you said it really well in your written post today. You titled that one, you do not, under any circumstances, got to hand it to Chief Justice Roberts, which I'm going to say is better than my proposed title of zero cheers for the Supreme Court. I mean, that's why they pay me the big bucks, man. I'm going to read your penultimate paragraph because I really think this sums it up. You say this, meaning the tariffs decision, is not the day that Chief Justice Roberts became a real jurist. This is three conservative justices who invited the president to pick consumers' pockets for a full year before eventually telling him to knock it off once they'd ensured that the chaotic fallout would persist for the rest of his term. We will not be applauding like trained seals because the person who left the bath running and flooded our collective house eventually wandered back in and turned off all the taps. You want to unpack that for our listeners? Sure. From a legal perspective, as I said, this wasn't a complicated case, right? The substantive holding, the part that got six votes, not the part about the major questions doctrine. The main holding is exactly what the three-judge panel of the Court of International Trade said when it struck down Trump's tariffs back on May 28th. IEPA does not permit the president to impose tariffs, period. But the Supreme Court did three things that ensured that this case would take a year to resolve. Because remember, the first cases were filed in February of 2025 when the first tariffs were imposed. So the first thing that the Supreme Court did was to ramp up their shadow docket rulings to 11 when those cases involved Trump. Not for anybody else, only for government-involved cases, right? Every bloody time a lower court said that Trump had to follow the law, they jumped in and said, no, no, he doesn't, which is not how this is supposed to go. Normally, a party who loses at the trial court has to abide by the ruling, even as he appeals it, even when that party is the president. But because the Supreme Court kept jumping in, they made it clear to lower courts that if the judges didn't stay their own rulings, it would trigger this mad race to the Supreme Court and the justices would wind up staying it anyway. So trial courts started building these stays in themselves, saying, actually, my ruling won't go into effect when the government was a party to the case, since they didn't want to engender this chaos. They knew that they were going to get held up. They knew that their rulings were going to get stayed. They just did the efficient thing and stayed those orders themselves. Yeah, you might call it a chilling effect. I agree with that completely, right? The Supreme Court made its wishes known and lower courts have to apply. This is yet another way that the Supreme Court has just broken the judiciary to benefit Donald Trump. Right. So that's one way they threw sand in the gears of the tariff case. And then as the government was busy appealing the decision to the federal circuit, the Supreme Court issued its holding in Trump v. Casa, in which it struck down nationwide injunctions and said courts can only provide relief to the parties actually standing there in front of them. And that's been a total disaster for reasons we've talked about here. That's why we are drowning in every district court in this country in habeas corpus cases as they snatch immigrants off the street. But with respect to the tariffs case, the Court of Appeals for the Federal Circuit affirmed the decision of the trial court, the CIT panel, in its entirety. But instead of saying, OK, Trump, now you've got to stop stealing those tariffs, which are totally illegal under IEPA, the appeals court instead said, hey, trial court, the Supreme Court changed its rules about injunctions while this case was on appeal. Do you want to take a look at your original injunction and make sure that it's kosher and not providing relief to any extra parties? Right. And to be clear, that is absolutely appropriate from a procedural standpoint for the federal circuit to do. Right. The appellate court vacates the lower court injunction and then remands and says, make sure your injunction comports with the Supreme Court decision. And I should add that the CIT court panel was perfectly prepared to do that because even before CASA, the government had been making these arguments about the scope of injunctions. And they made them below and said, you know, narrowly tailor the relief. And the CIT panel said, what are you talking about? Here's actually what they said. There is no question here of narrowly tailored relief. If the challenged tariff orders are unlawful as to plaintiffs, which were five separate companies, they are unlawful as to all. And then there's a quotation. All duties, imposts and excises shall be uniform throughout the United States. And the tax is uniform when it operates with the same force and effect in every place where the subject of it is found. And that is a citation to Article one, Section eight, Clause one of the Constitution. Right. And so what the CIT panel is saying constitutionally, they can't craft some remedy where, you know, the tariffs apply to some entities, but not others. That makes no sense. Right. And just to be clear, we're talking about the Court of International Trade because that's the only court which can assess these tariff claims. And so if the Trump administration was correct in saying, well, each of these claimants has to present their own claim, otherwise we get to keep breaking the law, it would destroy the Court of International Trade. It's like 12 judges or something sitting in, I think it's New York. It doesn't matter where it's sitting. The point is it's 12 judges. It would be functionally impossible to adjudicate these claims singly. There has to be a rule. And, you know, and they said we're not going to be able to narrow this injunction. But before that could go into effect, the Supreme Court did the third thing, which dragged this case out, because after the federal circuit vacated the trial court's opinion, but before the trial court could reconsider its injunction in light of CASA, the Supreme Court reached down and granted certiorari and grabbed that case. So that deprived the lower court of jurisdiction. It was in no position to craft a new injunction because the case wasn't in front of it anymore. And that ensured that Trump was going to be able to keep collecting those tariffs until the case was ultimately resolved by the Supreme Court. Right. And then at oral argument, two things became really clear within the first couple of minutes, right? Right. First, it was obvious that there were at least five votes for the straightforward proposition that AIPA does not authorize Donald Trump to collect tariffs. And second, the justices also knew that every second that these illegal tariffs remained in place was going to be an enormous disaster. Right. So Justice Barrett asked Neil Kadial, who's the lawyer arguing for the plaintiffs, challenging the tariffs. She said, if you win, how is this going to work? It seems like it could be a mess, which like, yes, no shit. Kadial's answer was for his clients at any rate, the government had promised a refund in the litigation. It said, let us keep collecting these taxes. We'll give you learning resources or VOS elections. We'll give you your money back, the particular party here. But for everyone else, it's going to be chaos. Katyal said, there's a whole specialized body of trade law. The refund process takes a long time. There were any number of claims in equitable relief and other things. Yeah. And Katyal is not wrong, but I want to focus on the timing here for a moment because that oral argument took place on November 5th, 2025. But knowing, as they do, that time is of the essence, the Supreme Court nevertheless took another four months to allow John Roberts to polish up his opinion and graft on a bunch of crap about the imaginary major questions doctrine and let Justice Kavanaugh write a 63 page dissent. And that made the situation much, much worse. And that has to do with the way that tariffs are tabulated and collected. Right. So if you're importing more than $2,500 worth of stuff, there's what's known as a formal imposition of tariffs subject to 19 U.S.C. Section 1484. And what happens is that the importer must post a bond with the Customs and Border Protection, that's CBP, and pay estimated tariffs on the stuff that they've imported. And the government has typically 314 days, but no more than 365 days to finalize exactly how much in tariffs the importer owes. That process is called liquidation. And the plaintiffs in, I think, this case, but definitely in other cases said, please pause liquidation while we wait for this to be resolved. And the government said, no, give us the money now. Right. And here's why. Because if the tariffs had been invalidated by the Supreme Court before the liquidation process, then the government has the statutory burden to refund the money that they've already erroneously collected. CBP would have to figure out how much you're owed as an importer and they would have to pay you back the full amount. But after the tariff claims have been liquidated, the burden then shifts to the importer to file an administrative protest with CBP under that section that Neil Kochel was referring to, 19 U.S.C. section 1514. And under 1514, CBP has two years to review your protest, and then they can deny it. They can allow it in whole or in part. And then if CBP decides to do anything other than allow your protest in full you have to start all over again with a lawsuit in the Court of International Trade challenging that decision It an administrative appeal and you limited to the record developed on appeal And it just it is going to be that mess Right. So now you see why the timing is important, right? Because November of 2025, the government had only liquidated about half of the tariffs paid into U.S. coffers under IEPA. But by dragging its feet until the end of February, now most of those claims have been liquidated. So the importers can't just file new paperwork and get back the money that they already paid. They're going to have to try and recoup it through this adversary process. And even if they win, they're not going to give the money back to consumers who paid for the tariffs and increased costs of goods. I mean, a lot of the importers, to be fair, ate the cost rather than passing it on to their customers, which, I mean, not to digress too much. But Donald Trump's theory of the case here was that the sellers in other countries would take the haircut rather than lose the sale. But of course, that's not what happened. What happened is that we on the supply side paid it and mostly it was passed on to consumers, although some of the importers ate the cost. And even if the importers win, that's not going to refund any money to the consumers who paid for the tariffs and the increased cost of goods. Yeah. A 12-ounce bag of fair trade coffee pizza now costs $30. I am not getting that money back from the hippy-dippy collectively-owned coffee shop down the road. They're not getting it back from their supplier and so on through however many middlemen. The only one who might get the money back is the importer. Right. And in a lot of situations, the importer ate the cost, right? That's an equitable result, right? Because a lot of the importers ate the cost rather than pass it on to consumers. Although, you know, even in that case, this is going to be a totally inefficient way to get the money back because the importer is probably going to have to hire a lawyer to go through this adversarial administrative and then courtroom process. So he's not going to be made whole either. It's just a mess. And meanwhile, Trump is making insane noises about all the tariffs that he's going to collect. You know, now that SCOTUS allowed him to take the gloves off, he has already announced new illegal tariffs. And we're going to talk about what happens next with those after our last ad break. And we're back. So the first thing that Donald Trump did after this tariff ruling came down on Friday was announced new Section 122 tariffs of first 10 and then 15 percent. They are, as I said before the break, illegal. Yeah. But before we get to the nuts and bolts, let's talk about the strategy here. Once again, Trump's henchmen have found this obscure law that's never really been used and certainly not for this. And they point to it as their magic bullet. It's the same playbook they ran with the Alien Enemies Act when they federalized the National Guard, when they they're currently claiming that they must mandatorily detain all immigrants anywhere in the country. This is like they take a specialized body of law that no one ever tried to abuse before in quite this way. And that means that there's no there's no case precedent on it. There's no Supreme Court decision you can point to, which says like, no, that's not how any of that goes. So with respect to the newest version of these tariffs, it's Section 122 of the Trade Act of 1974. It's never been invoked by any president ever for any reason. It's never been interpreted by any court. It has never been cited by any court in history. It's this complete blank slate. And the law uses definitions written by economists. Yeah. The law is codified at 19 U.S.C. section 2132, and it says that the president shall proclaim for a period not exceeding 150 days a temporary import surcharge not to exceed 15 percent on goods imported into the United States if one of three conditions are met. And the executive order that Trump issued on Friday cites that first condition, which is to deal with large and serious United States balance of payments deficits. Okay, so what is a balance of payment deficit? It is this weird thing that was an issue primarily from 1944 to 1971 when international trade was governed by a system called the Bretton Woods system. And I should say as a disclaimer, neither you nor I are economists. We're going to grossly oversimplify it. But before we get into that, let's say what a balance of payment deficit is not, and it is not a trade deficit. If you look in an economics textbook, which, you know, we did, it will define a balance of payments deficit as when a country imports more goods, services, and capital than it exports in goods, services, and capital, which necessitates borrowing from other countries to cover the cost of the import. Which kind of sounds like a trade deficit. I know that's the space they want to live in, but it's the words goods, services, and capital that makes it not. So, for example, the United States obviously definitely has a large trade deficit in goods with many countries, including China. But we often have a trade surplus in services and a massive trade surplus in capital, which makes our balance of payments with China sum to zero. And here's why. But let's say Americans buy T-shirts from China that are worth a billion dollars. China hands us the clothes. We hand them a billion dollars in U.S. currency. This is a gross oversimplification. Let's make it even simpler by stipulating this is the only transaction between the two countries. China buys nothing from us. We buy nothing else from them. If Chinese businesses buy nothing from us, then Chinese accounts wind up holding a billion dollars in American currency. We would then have a trade deficit in goods of a billion dollars, but a trade surplus in capital of negative a billion dollars. So China's got our billion dollars. They can spend it on American goods and services. They can buy American assets like real estate or they can hold on to them in bank accounts. But whatever they do, it zeroes out, right? The payments we make to China for T-shirts are balanced by the goods and services China sends to us in exchange for American dollars. Yeah. So you might be asking, how can the United States have a balance of payments deficit? And the short answer is we can't, right? Not in 2026, but we sort of could under the aforementioned Bretton Woods system from 1944 to 1971. And that's because Bretton Woods was a response to the general impoverishment of the allied countries after World War II. Diplomats at the time were worried about accidentally recreating the conditions which caused World War II in the first place. So the allies met at this place called Bretton Woods in upstate New Hampshire to try and figure out how to prevent hyperinflation and the devaluation of the currency. And the solution they hit on was to have the 44 signatory nations agree to peg their currencies to the U.S. dollar as a reserve currency, meaning that one pound or franc or mark or whatever in local currency would always equal a certain number of U.S. dollars. If the local exchange rate exceeded that fixed peg by, and this was the agreement, more than plus or minus 1%, the countries would have to intervene in their own foreign exchange markets and either buy or sell more U.S. dollars. And the U.S. dollar, in turn, was set at a fixed price tied to $35 an ounce of gold. So foreign governments and central banks could exchange their local currency for dollars and then dollars for gold. And that is how you wind up with a balance of payments deficit. If countries have to devalue their currency to keep it pegged to the dollar, then consumers are going to buy more foreign goods. But that can result in more dollars being held in foreign accounts, which drives up the price of the dollar, which devalues the local currency, and it could spiral out of control. And at the time, it was thought that one of the ways to deal with that balance of payments deficit might be to temporarily increase the price on foreign goods through a tariff, right? So that way the U.S. would decrease its capital account by keeping more dollars at home. But it turns out there was a much better way to fix the problem, and that was to get rid of Bretton Woods. Let other countries' currencies fluctuate independently of the dollar and don't tie the price of the dollar to the price of gold. Oh, bring back the gold standard. No, I'm just kidding. That's some Ron Paul shit right there. Anyway, that's why until now, no president has ever declared a balance of payments deficit because there isn't one. It's not a thing. We'll link in the show notes to an analysis of Section 122 conducted by the Congressional Research Service, which shows that trade deficits are not balance of payments deficits. That's not what Congress ever intended. And part of the way we know that is because you can't solve a trade deficit in 150 days, which is the limit of the time that you're allowed to impose these tariffs under Section 122. So it makes no sense for that law to be time limited if it was meant to apply to a persistent trade imbalance, which is the emergency that we're talking about here. Trump says that we have a trade imbalance and other countries aren't buying enough from us and they've been taking advantage of the last four years. Blah, blah, blah. You've all heard it. Yeah. The Section 122 tariffs that Trump announced are set to go into effect Tuesday morning as this show drops. So lawsuits have already been filed. We'll see. OK. Counterpoint from the president on Truth Social. The Supreme Court accidentally and unwittingly gave me far more powers and strength than I had prior to their ridiculous dump and very internationally divisive ruling. For one thing, I can use licenses to do absolutely terrible things to foreign countries. Wait, if it's if it's such a bad ruling. Anyway, I'm glad you were the one with the truth social account because I do not speak crazy. But I think that what Trump is kind of trying to get at here is a reference to footnote 13 of Justice Kavanaugh's dissent from the tariffs opinion. And to get there, I have to rabbit trail a little bit on how deeply weird Kavanaugh's dissent is, right? And we talked about the dynamic. But Kavanaugh's dissent begins by protesting that all he's doing is, quote, neutrally interpreting and applying the law, which, you know, is always a pretty good tell that you're doing the exact opposite. Yeah. Kavanaugh basically tells Trump outright to keep trying. He says, although I firmly disagree with the courts holding today, the decision might not substantially constrain a president's ability to order tariffs going forward. That is because numerous other federal statutes authorize the president to impose tariffs, and it might justify most, if not all, of the tariffs at issue in this case, albeit perhaps with a few additional procedural steps that IEPA, an emergency statute, does not require. Those statutes include, for example, the Trade Expansion Act of 1962, the Trade Act of 1974 and the Tariff Act of 1930. In essence, the court today concludes that the president checked the wrong statutory box by relying on IEPA rather than another statute to imply those tariffs. Two things. First, almost all of that is a lie. We just talked about Section 122. That's the reference to the Trade Act of 1974. It does not allow Donald Trump to recreate it. Even if it did, it would only allow maximum 15 percent tariffs for no longer than five months, not infinity tariffs on penguins in perpetuity throughout the universe. Which is more or less what Chief Justice Roberts said in a footnote in his majority opinion. He said the principal dissent surmises that the president could impose most, if not all, of the tariffs at issue under statutes other than IEPA. The cited statutes contain various combinations of procedural prerequisites, required agency determinations and limits on the duration, amount and scope of the tariffs they authorize. We do not speculate on hypothetical cases not before us. I agree with you. I also read that as trying to caution Trump not to try it. But, you know, we'll see. Yeah. And look, I appreciate that Donald Trump is not a scholar, a legal scholar. I know he says that he reads gooder than everybody else. I assume what happened here is that he went to, you know, Solicitor General John Sauer and the rest of the lawyers and said, show me the good part. And they were like, look here. But like, A, this is in the dissent. It's not binding. Trump keeps saying like, all of them agreed. And like, no, no, no, they didn't. And it's dicta. It's dicta. As that's what Justice Roberts is saying, like, hey, don't rely on Kavanaugh running his mouth in the dissent because that's not the holding and it's not binding. But I don't think that's what Donald Trump took away from it. I agree. I guess I want to add that Kavanaugh saying, let's not sweat the details. Trump could probably tariff anyway. So, you know, why are we being so picky about checking the right? Like, that is a very weird thing for Supreme Court justice trying to neutrally apply the law to do. I mean, imagine Kavanaugh's logic applied to, I don't know, any other case that has come before the Supreme Court in the past year plus. Right. Like plaintiffs can probably challenge their detention in some way. So why are we concerned about them checking the right statutory box via a habeas petition? Right, right, right. The fact that you could have done it some other way is not legally relevant to the way that you did. That's not law. Yeah. That's just bullshit. Yeah. But I have to say, Liz, I think Trump is going to seize on the dissent and probably will keep trying. And, you know, for me, it's going to be an interesting question to see what gets teed up after the Section 122 tariffs fail. Like, is it going to be licensing fees, as we just talked about? Is it, as per question we received from listener Andrew G., is it going to be Section 338 tariffs? That is another area with zero law. Like, we don't know. We're trying to stay one step ahead of this. Yeah, this is not going away. And there are already lawsuits being filed right now and laws proposed to deal with how to get those tariff refunds. This is going to be a hot mess. and it's the Supreme Court's fault and the fact that they hate each other does not make it any less their fault. But we do not hate each other and we definitely don't hate you. Thank you guys so much for hanging out with us and we'd love you to support the show. You know how and we would also love if you would give us a five-star review on your podcast platform of choice. We'll be back on Thursday with written content and on Friday with another show. This production of Raised to Media LLC is intended solely as entertainment, does not constitute legal advice and does not form an attorney-client relationship. This show is researched and written by Liz Dye and produced by Bryce Blankenagle. On Chaos Pod, copyright raised up to Media LLC, all rights reserved.