Transcript
Speaker: Hello and welcome to s Sips and Substance, where we distill politics down to its essence. I'm Justin. We have Jonathan over here. Hello. And we had our first election. So a referendum on the Trump administration.
Speaker: And the Democrats did quite well. And so we're going to do some election quick hits. And we're also going to talk about AIPA. So Jonathan, why don't you tell us what that is?
Speaker: Yes, we're going to get in. Basically, it's it's the tariff discussion, but we're going to do it through the acronym because it's a nice segue into the beer for the week. um Beers, I should say. But anyway, it's the International Economic Emergency Powers Act, which you probably don't know and don't need to know. I didn't know what it was until we typed it in here.
Speaker: um because it's just a typical um government acronym. But basically, it's what the Trump administration is using to justify their approach to tariffs. And because it has an IPA in it, we thought it would be useful to have some IPAs this week.
Speaker: And we're to do a special one since we haven't been on for a while. um And one of my friends happened to bring over, we had a little dinner party last week, a sampler of Voodoo Ranger with four different IPAs. It's very thematic, Jonathan. you know We have the Japanese buying our stuff, the Imperial IPA for the Imperial presidency that we have. There you go. so We're nothing if not on topic.
Speaker: So we have the Juice Force IPA, a um which is an Imperial hazy, I'm assuming, although it's not particularly hazy. um We have the Citrus Slayer ip Imperial IPA, which is Imperial IPA with citrus flavors.
Speaker: See how that is. Just the standard Voodoo Ranger Imperial. And... The Hop Dynasty Voodoo Ranger Imperial IPA, which I guess is different hops. um So in order, my preference.
Speaker: I'm don not a fan of this. It's very like apricotty and mango-ish, very sweet. Not a fan of the sweet IPA. I'm not a fan of this one. The Citrus Slayer, little darker. Let's see what that is.
Speaker: Wow, it's like drinking orange juice.
Speaker: It's, yeah, it's it's no Pliny, I'm going to say. We've got to get a nod in for Russian River even when we're not drinking them. The Voodoo Ranger Standard Imperial.
Speaker: and this one this is This is a fine beer. I'm not going to seek it out, it's fine. um The Hop Dynasty.
Speaker: Very similar. um A little bit more... fruity hops, I think. little bit fruitier in the hops.
Speaker: Yeah. I guess of these, I'm going to declare voodoo ranger the standard Voodoo Ranger Imperial IPA as the best one here. All right. So anyway.
Speaker: If you're a Democrat, though, you have reason to drink, right? That's true. Lots lots of celebratory drinking. And in honor of the Democrats' performance, I wore a shirt from a brewery in Brooklyn. Very hipstery kind of place. It's a really good brewery. If you're um in New York, visit Grim Brewing. Really good. But also, it's it couldn't be more Brooklyn. You go in there, it's like, this is what I expect from Brooklyn.
Speaker: And so... Since the Brooklyn hipsters had their day, thought I'd wear a shirt for them. So I think before we talk about the results, we should talk about expectations.
Speaker: So during an off-year election, when you have a trifecta in power, usually the power the party out of power is going to do really, really well. So you combine that with the fact that high propensity voters now lean Democrat, and that's sort of the new political realignment that we're dealing with.
Speaker: the Democrats were expected to do well. And even given that, the Democrats exceeded expectations. I think that's something we we're going to want to revisit, next for certainly for the next midterm election, um to see, are the pollsters overcorrecting from what happened last time?
Speaker: right um Because last time, it was all all the error was towards Trump, and this time, all the error was towards the Democrats. So the pollsters still can't quite get a hold of what's going on in the election in the electorate, I think.
Speaker: Yeah. i mean, we we talked about sampling error. This is not sampling error. This is model error. This is model error. Yep. The first election we want to talk about is the New Jersey governor's race, because I think that was one of the places where the GOP thought they had a chance.
Speaker: yeah And a lot of stuff that I was hearing before the election seemed to made me think, you know what? Democrats might just lose here. And it would it couldn't have been... a bigger result. I mean, guess it could have been, but it was almost a blowout in terms of um it won by 13 points, right? That is a blowout.
Speaker: Yeah, I guess, yeah certainly in modern American, modern American, Paul, when you think about how close the presidential elections have been, 13 points, nobody's sweating, right? um And so it's, it was quite a miss in terms of polling, but quite a win for Democrats in terms of driving out people, their voters, and getting voters who were inclined to vote for Trump,
Speaker: um during the presidential election to come back to the Democrats in this election. Right. So the the dynamics in New Jersey are interesting because they generally don't keep electing Democrats for the governorships.
Speaker: I don't remember what the date was, but I think this is like the first time since like the 1960s where they had three straight Democratic administrations. Yeah. We all know Chris Christie, famously governor of New Jersey for a while.
Speaker: um New Jersey Kind of the split ticket is not unheard of there. I think it's it's safe to say. And the Republican candidate for Jersey was well known. He wasn't some crazy MAGA lunatic. He was a well-known Republican. And while he did change his positions on a few things in order to appeal to Trump voters,
Speaker: It wasn't someone like Winsome Sears, who was the Republican candidate in Virginia. He was a traditional Republican who tried to court the MAGA folks and overall fairly good candidate for New Jersey.
Speaker: Yep. Yeah. And that's I think it's important to note that, yeah as you said, the GOP candidate in Virginia, not quite as strong. um um The results, very similar, though. the The Virginia race was 14 points. And if you you think about it, right, that makes the New Jersey, I would think the New Jersey um results even more impressive for the Democrats, um especially because New Jersey really surprised people and surprised us in the presidential election for how small the margin was um for the Democrats.
Speaker: I think Abigail Spanberger is a good candidate for Virginia specifically, but I wasn't really blown away by the results of this race. Given that you ran against a train wreck candidate, this is someone who said that discriminating against gay people is not discrimination in the debates.
Speaker: And i just don't think that's going to fly in Virginia. And I'm speaking of Winsome Sears here. Obviously, Spanberger did not say those things. I thought that there'd be a little bit more ah backlash from all the firings, right? Because Northern Virginia, pretty strong readout of people who work for the government, right? And a lot of people got fired. A lot of people aren't working now in the shutdown.
Speaker: um So I would have, i actually expected a little bit. I again guess I can't say I expected more than d plus 14 because I think that in a vacuum, that's a pretty good result. It's a great result.
Speaker: With New Jersey winning by 13, I'm a little bit surprised Virginia didn't win by a little bit more. Right. And she was able to pull Jay Jones. He was the controversial Democratic pick for the attorney general.
Speaker: So if you aren't aware of who he is, that's OK. You're not supposed to know who he is. Only the most political insidery insiders would know that. But he basically had some text where he said that if, you know, Hitler and bin Laden and this Republican president,
Speaker: you know, delegate member whatever, he would get two bullets. You know, it's a joke and everything, but he said some really terrible things. And in a I think controversial is being very kind. i think he had no business being, I don't know how Democrats didn't vet him a little bit better than that, but I was really disappointed that they didn't get him to drop out when they found all this stuff.
Speaker: Cause I thought that was, i it's hard to celebrate a victory by a guy like that. Right. Yeah. In a previous lifetime, he would not have, he would he would have resigned.
Speaker: But here we are. Trump has set sort of the zeitgeist and this stuff just doesn't matter as much anymore. It still matters though, because he ran behind Spanberger by 10 points.
Speaker: Yep. but it doesn't matter enough. The blue wave was large enough where he was able to cross the finish line and even exceed Harris's margin. So rose saying I'm guessing that a lot of people, like you're saying had very little, i well not a lot, at least a fair number of the electorate are just like, well, the Democrat, I'm voting for the Democrat. And that's what he had to hope for.
Speaker: Um, I guess all the other democratic candidates can be, can at least be happy that they weren't the worst person elected, no matter who they were. i think like that, that, that, uh, accolade goes to Jay Jones.
Speaker: Hopefully he can show that he's actually changed his tune and can perform his duties with a little bit more class than he did his ah social media. Yeah. Let's hope.
Speaker: Then the other big election was California's Prop 50. So this is in response to Texas's ah mid-year redistricting, where they tried to gerrymander, where they successfully gerrymandered the state to remove Democrats from congressional seats.
Speaker: Now, whether or not that's going to work, yeah you know given the change in demographics, we'll see. But California, they responded, they've redo their districts. And so now a lot of Republicans might be out of a job in 2026.
Speaker: yeah And amusingly enough, they those Republicans are suing, claiming that it's unfair to redistrict to get them out of out of ah out of office. So I imagine that that's an amusing case that'll make its way through the courts, and they probably won't end up doing so well.
Speaker: um if it gets as far as the Supreme court, that would, that would be very amusing. They would have to rule on both, uh, Texas and California. And I think they have a hard time splitting that hair and me and allowing one to stand in the other. Not, um, I don't think it'll get that far though.
Speaker: Um, But what was interesting to me about this is, you know, i'mm not the hugest Gavin Newsom fan, but I think he did really well here. and And this is a big victory for him because I remember when he first came out with this, there was some some initial polling that showed that Californians were very opposed to this and they wouldn't pass it.
Speaker: But it turned out they would. um And it was a huge turnout in terms of um midterm elections. Right. And even election, right? California doesn't really have off year elections. You have it on the even numbered ah years.
Speaker: Yep. And a massive market. Was it 28% was the margin? Yeah. That's what it is now. It's the estimated result. We count slowly. Yeah. You people have no idea how to run an election. Clearly. We can run elections. We just can't do the counting. That's true. You can't do the counting. That's fair.
Speaker: Your elections are basically like ours. Everything can be Senate. Do you have, can everybody vote for vote by mail there? Yes. You just don't make people have them in by the time elections- No, you have like 14 days or something. Yeah, that's, I don't understand that at all. It's like, I don't feel oppressed because my vote has to be in on election day.
Speaker: um Apparently, I guess in California, you guys do.
Speaker: um But yeah, I think the the initial the interesting takeaway from that is that the question you just raised in, so what are the Republican states going to make of it when these margins are pushing more and more towards Democrats?
Speaker: right they I don't think the Republicans expected anywhere close to plus 13 and plus 14 in New Jersey and Virginia. And if other races are five, eight, 10 points more than they thought they would be, that raises some real questions about some of these gerrymandered districts because they go from, like as you said, really strong Republican to kind of Republican.
Speaker: And kind of Republican, you can lose in a bad year. Right. So- I think a lot of states are going to tread carefully now, and hopefully we you know put down our arms here. you I don't want to live in a country where it's a race to the bottom, and you know depending on how you vote in the presidential election, that's going to dictate how many seats you have for 10 years.
Speaker: it's i don't I don't want to live in that country. Well, again, we can thank our Supreme Court. This was another one of the bad decisions that I didn't like did not like out of the current court. It's just how do you find any sort of rationale for letting the the politicians decide who's going to win or not. It's just, it's just baffling. So anything that could make a step back from that would be great for me.
Speaker: Yeah. it's It's going to take a while though. Oh yeah. Until we have a new Supreme court in place, obviously. I'm just new Supreme court. You're going to have abolish the filibuster. I mean, there's a lot of work to be done to have some sort of national ah fairness when it comes to gerrymandering.
Speaker: Yep. Uh, you know There are a few other races we could talk about. um their Well, i thinking out you're intentionally I think you're intentionally ignoring probably the mayoral race in New York.
Speaker: um Despite the fact that if you watch the news, that's the main thing people are going to talk about because Republicans want to um really tar Democrats with, aha, you've you've you've elected a socialist and he's a Muslim, right?
Speaker: um And then Democrats are... ah sort of mixed on what to make about this, but I think they they are think realizing that there's some energy here in New York that if they can figure out where that came from and how to use it properly, can be useful other places too.
Speaker: Yeah, it's a double-edged sword though, because while Mamdani, he got the most amount of votes in from a turnout perspective, since sometime in the 1960s, Andrew Cuomo also got a ton of votes, which was surprising because he's a terrible candidate.
Speaker: One of the worst candidates I've ever seen. Well, sure. I mean, it didn't surprise me that much, right? Because Mamdani, I'm going to mispronounce his name, but Mamdani still got a majority. It wasn't like it was a plurality and he happened to win. Right. And if you think about it, most Republicans, there are some in that area, they're all going vote for Cuomo because Sliwa is just a ridiculous candidate. It was just like, if you made up caricature of a candidate, he could pass for that. I like him for they operate And you know the I think that the the way that Republicans and and people who don't like Mamdani were throwing around the Islamophobia probably helped change the drive those mar drive up the vote for Cuomo a little bit more than they ordinarily would.
Speaker: Yeah. so So it's really interesting. I think Mamdani ran a really good campaign. I think he pivoted to the center where he could. And i think there's a lot riding on him.
Speaker: You don't want to, inevitably, he's going to be the face of progressives in America. And if there's going, if there are problems in New York, the Republicans are gonna be relentless and blame it on progressives like him.
Speaker: you know, I wish him luck. You know, you should always want to have good governance regardless of party. So hopefully ah people in New York see some benefits from him.
Speaker: My daughter is very happy, so hopefully it works out for her for her and her fellow Brooklynites. and everybody else in New York too, as well. um I think the other race is worth mentioning briefly, right? um The Democrats won the Pennsylvania Supreme Court um seats that were that were up, and I think those are new tenure terms.
Speaker: um So that's, again, good news for them. Pennsylvania, certainly not um a Democratic state like Republicans were trying to say, oh, they just won in Democratic states. Well, Pennsylvania, not at all, very much a swing state.
Speaker: um Trump won it in the last election, right? um And also there were some races in Georgia where the Democrats won... ah seats on the, ah what is a public utilities board or something like that? Something like that. it was a 20-point swing.
Speaker: Yes. um and And interesting to show that you know the issue that I think probably drove Trump's victory um in his election, the the economy and pocketbook issues are fading away from and Republicans and moving more towards the Democrats.
Speaker: And I think that's one of my biggest takeaways, um from this election is that Democrats are finding ways to attack the economy, right? That seems to be resonating with a lot of voters.
Speaker: Yeah. So what does it all mean? You know, the clearly the GOP 2024 coalition is falling apart. Hispanics have flipped back. Young people, especially young men, you know i think Trump won those outright. Right.
Speaker: That has also changed. So these aren't permanent realignments you know between young people and Hispanic voters. I do think that the educated voters, people's college education and the rural America staying sticking with the GOP. I think those are more permanent ah fixtures of our electorate.
Speaker: But the Trump coalition has fallen apart as far as I'm concerned. concerned yeah And that's what one – I wanted to comment about sort of the last thing you said there, um that I don't think they really had like a broad coalition per se I think there was a lot of people reacting to events of the day. Sure. think that's what we're seeing here this time. Yeah. It's not like the the people that voted against – um Republicans and four Democrats here are now necessarily fully and permanently realigned with Democrats. right It's, again, the events of the day.
Speaker: And that's something that the Democrats were not good at all about addressing in the last presidential election. Maybe they can learn, maybe they're starting to learn from that. And maybe they'll take some lessons from this is like, hey, that's where we need to start.
Speaker: Let's make sure that these undecided voters who are not like are are There is, again, like you're saying, there's the there's the Trump voters and there's the Democratic voters. It's these people in the middle that you've got to figure out um how to get them on your side.
Speaker: And this time, it seems that the Democrats were pretty handy in terms of getting them to think about the Democratic approach to the the important events of the day, as opposed to the last presidential election.
Speaker: Yeah. So the direction of the Democratic Party still up in the air. The brand still isn't good. When you think Democrat, you don't think, oh, yes, I really want to vote for them.
Speaker: I think you can temper that a little bit with people did, right? Yeah, people did. So the band isn't that bad, right? and But again, I think this gets back to my last point. It's like not that you're voting for Democrats.
Speaker: You're voting for somebody you think is going to address the issues that are important to you. Right. And that's what I think the Democrats really need to focus on. they can't They can't focus on the idea of we need to make our party attractive.
Speaker: It's like, no, you need to make Attractive candidates who address the issues that are important to the voters. And to me, I think it's very useful for the Democrats to have a candidate like Mamdami in New York and different candidates in Virginia, different candidates in New Jersey.
Speaker: Right. They're the same people aren't going to play everywhere. right And for that if if they can understand that and don't calm down the the the progressives on the far reach that are that are opposed to anybody who's not as progressive as Bernie Sanders, I think that will help quite a bit.
Speaker: Yeah. So we will have a deep dive into the direction of both parties in a future episode ah because we have some really interesting discussions to have there. um But overall, great night for Democrats, and they should be really happy with the progress that they've made.
Speaker: Yes. And I just hope that they don't decide, well, we've got it figured out because there's still work to do. Oh, yes. But if they use this as a stepping stone and a first building block to mix some metaphors and see if I can come up with more. First wrong on the ladder.
Speaker: Right. And we got three. I'll stop there. um But anyway, if they do that, then it's it's promising, um a little bit more promising anyway, for their prospects going forward. um So, yeah, we but I think we probably spent a little bit more time than we were expecting on the elections and certainly the beer thing.
Speaker: um um But now we get to move on to our IPA issue, which is there's a couple E's in there first um and talk about the tariffs. i It's particularly timely right now because this week um there were the oral arguments before the Supreme Court over whether or not the Trump administration has the constitutional authority to enact all these tariffs that they're at enacting.
Speaker: under the emergency powers given two the to the president in the, again, we'll read the law we'll read the law one last time, the International Economic Emergency Powers Act. And this act does give the president a lot of leeway and to do certain things if there are emergencies, but notably doesn't say that the president can enact tariffs.
Speaker: And these things sort of combine to raise the question of whether or not it ought to be allowed for the president to enact tariffs at his whim. So the questions facing the court were, one, does IEPA allow the president to impose the tariffs?
Speaker: You had to say it, didn't you? Yeah, I did. Two, if it does, can Congress even delegate this power? We know that Congress has the Article I power to impose taxes and regulate commerce.
Speaker: So can they even give the president this power? Number three, if they can delegate this power, were the requirements met? That is, was there an emergency?
Speaker: Four, and if yes to all of the above, does the major questions doctrine apply? And we're going to talk about this a little bit in the future because it's probably the most important doctrine that we're going to discuss.
Speaker: And on the other side, if it is unconstitutional, well, what's the remedy? Can we just refund the tariffs? What's that process going to look like? Yeah, I think part I mean, an interesting part, I guess, jumping to the to head to the remedy section is there are people that are suggesting that they could just make a perspective. Like, what's done is done.
Speaker: Going forward, you can't do this, right? Which would take care of that. People might not be very happy about that either. um But I think before we jump too far into the remedies, right, I think we do need to define what the International Economic Emergencies Power Act does.
Speaker: And I'll try not to say that anymore because it's it's a mouthful as well. Aeepa is easier. That is true. um You sound like you just saw a mouse though. Aeepa. There you go. um So, anyway, it gives the president broad authority during an emergency, right?
Speaker: um What's interesting about it is he gets to determine what the emergency is, right? If he declares an emergency, he may regulate importation or exportation of property in which any foreign country or national thereof has any interest. As you might imagine, that's quoting from the statute, right?
Speaker: um And then this this law came on on the books during you know, the the Watergate kind of era where Congress was drawing in, reigning in the president and the law that it replaced, they thought was too broad. So I think that that's something that gives us a little bit of context of what Congress intended to do with this, right?
Speaker: um And then if you're interested in reading more, which maybe some of you are, I don't know, maybe some of you are are masochistic tonight, there is a link in the show notes for a good deep dive on specific aspects of everything you need to know about, you might possibly want to know about IEPA,
Speaker: Yeah, it goes through like the history about how the Trading with the Enemy Act, which is the precursor to that, that's a World War I act. And basically, we were in a state of emergency for decades.
Speaker: And basically, every administration used some aspect of the Trading with the Enemy Act. And so post-Watergate, post-Vietnam War, Congress said, you know what?
Speaker: We need to come up with better legislation because the presidency has gotten too powerful and there are way too many emergencies. So we got to keep that in the back of our mind. so So what is the emergency?
Speaker: Well, we have two emergencies. There's fentanyl trafficking. So naturally we have to tariff Mexico, Canada, and China because all the fentanyl coming in. And you know what? There's another emergency.
Speaker: We have massive trade deficits everywhere. So we need to impose tariffs to fix that. And just in case your set your your sarcasm isn't coming through to everybody, um these are emergencies that may or may not be emergencies, but they are emergencies under the law because the president has declared them and Congress has declined to step in and say, not so much, um sort of in keeping with Congress's constant declining of any opportunity to rein in Trump at this point.
Speaker: So I think we can go into two different doctrines now. So we've declared what the emergencies are. We've looked at the text. So what are the doctrines? One thing quickly, though, just to make sure These are doctrines that the Supreme Court could be and pop probably are considering when they're making decisions, not doctrines that are motivating the the administration.
Speaker: Right. These are doctrines that the Supreme Court has used. So if you think about strict scrutiny, intermediate scrutiny, rational basis tests, the Supreme Court uses these frameworks to determine the constitutionality of a law.
Speaker: So non-delegation doctrine basically says, can Congress give president this power? And the reality is this is a dead doctrine. The only person who seems interested in this is Justice Gorsuch.
Speaker: Yeah, I think that was the point I was going to make, too. is like We've talked about this before, that it's dead to everybody but Justice Gorsuch who wants to bring it back. yeah um Because he's very much a proponent. And this is something I kind of agree with him on. right i can cross We can cross the partisan lines here. we were We're open to sort to rational discussion.
Speaker: that It's a problem that Congress gives away too much power to the executive branch. And so... and so Justice Gorse is just saying, you know, let's get back and look at this. Maybe there are things that the Congress shouldn't be able to give away to the executive branch.
Speaker: um But I think you're right. That might not be a lot of receptivity to that amongst the other justices. Yeah. So basically, if you want to sum up his judicial fault philosophy, it's stay in your lane.
Speaker: Yes, I think that would be a very good very good um analogy. So the most important doctrine, and there was a lot of discussion regarding this, is the major questions doctrine. So did Congress give the president this power?
Speaker: So is the president's reading of the statute a reasonable interpretation? Are they just making stuff up? Are they really stretching the words and meaning? Well, let's have that discussion.
Speaker: And the second aspect is, if it's a big enough deal, This power needs to be explicitly conferred. First, I just want to mention that it's the major questions doctrine to me is just ironic on its face because they're saying you can't do these things unless Congress explicitly told you that you can do these things.
Speaker: But nowhere in the Constitution or anywhere does it say there's a major questions doctrine. and So the court has taken upon itself to create this doctrine out of nowhere and use it to judge the validity of statutes and presidential actions um based on something, right? There's no precedent for it. There's there there's no requirement for it.
Speaker: um Justice Roberts is a big proponent of it. um And so are the other conservatives now. It's like, yeah, we like that. We're going to do that. um And so... They're doing what, the in in a way, what they're telling what they're telling the president they can't do.
Speaker: um So interesting there. um But yeah, I think the most recent examples that I think stand out, right, are they ruled against a vaccine mandate um during during COVID, and they ruled against student loan forgiveness.
Speaker: um Again, both because... Both times, you can see in the statute where, okay, I could see that i could see that that's not prohibited, right? But because it wasn't explicitly allowed, right, they said the major major question's doctrine prohibits it.
Speaker: Right. So- The Biden administration, in order to justify the vaccine mandate, they found an OSHA statute. They're the agency that deal with you know workplace safety and whatnot. And usually that statute was used to deal with hazardous substances like asbestos, right?
Speaker: And so you would affect maybe tens thousands of workers since its enactment, right? Now, the COVID vaccine mandate, on the other hand, that basically affected everyone, tens of millions of workers.
Speaker: And that's where the Supreme Court stepped in and said, you know what? The scale that you're using this statute to justify your actions is just too much. And so in order to justify that, you would need explicit authority from Congress.
Speaker: Right. And the same thing with the but the student loan um case. Again, i have all kinds of problems with how the Supreme Court ruled on that. But again, their rationale, if we're trying to parse that out, is that you know if you're going to use this act, the which the emergency powers that are given you,
Speaker: um Maybe you need to have, you not maybe, but definitely you need to have more explicit direction from Congress. And so when it comes to the tariffs and IEPA, we can kind of view this through a similar lens, right?
Speaker: Because there's no explicit grant of granting tar, of putting in tariffs, right? As part of IEPA. It's they allow the president to regulate trade, but they don't say tariffs explicitly.
Speaker: um Whether or not that applies, that's a lot of the crux of what's going on with this court case. Right. And even if it did, there's also the scale factor you have to consider.
Speaker: Trump has used blanket tariffs on dozens of countries. And he said that it's going to raise trillions of dollars in revenue. Well... having licensing fees and quotas and stuff like that, that's small potatoes compared to trillions of dollars.
Speaker: And it's affecting everybody. Certainly if you're focusing on one country at a time, much different than worldwide tariffs based on based on this this statute. And historically speaking, previous administrations have used it to block transactions with people, you know, associated with terror groups, Russian hackers, folks associated with Assad, you know Just very narrow aspects.
Speaker: And granted, it's been very powerful, right? You're either seizing property or you're blocking transactions entirely. It's a sledgehammer, but it's a sledgehammer on a small amount of people.
Speaker: This, I know what the proper analogy would be. I've used all my mixed metaphors, so I'm probably out of analogies. But it is hard to imagine if the scope of something like federal of a federal student loan debt relief is too broad to fit into an existing statute.
Speaker: It's hard to imagine that the scope of tariffs on everybody, everywhere, all the time at the president's whim is not too broad to raise some questions among that. Let's look at sort of the practical outcomes of the case.
Speaker: Suppose that the court rules against the Trump administration. From a practical standpoint, I don't think that's a big deal because Trump has a lot of other legislation that he can leverage to impose tariffs.
Speaker: And he even did so during his first administration. And Biden kept some of those tariffs. So there's two ways she could do it. There's the Trade Expansion Act. Section 232, which deals national security.
Speaker: And there's the Trade Act of 1974, which deals with economic harm. So you could justify the fentanyl crisis under national security and the trade deficit as economic harm if you believe that they're harmful. and He has ways to deal with this, but it requires a paper trail and it takes a long time. And that's why he didn't do it.
Speaker: Yeah, I think that that was the point I was going to make. is like he doesn't He doesn't do that because it's not as quick. It's not as flexible. You can't change things on a dime. And and and it's there are prescriptions too. I believe that there are limits to what you can do through some of these acts. You can't do, oh, we're going to do 150% tariff until somebody somebody um concedes the point that we want to make.
Speaker: but You can't punish people because, say, they're they're having policies that you don't like. right the There's all kinds of things he's using tariffs on. that these acts don't allow.
Speaker: So I think it would be at least something of a deal in order if they reined him in on this or decided not to. Right. um And I think that it kind of brings us to, you know, where the court is likely to be thinking. And I think it's it's always worth considering what the chief justice is up to, right? And I think we both kind of come to the, and agree with the idea that Roberts cares a lot about sort of the the view of the public view of the court.
Speaker: He wants people to think the court has integrity. He wants people to think that, you know, they they don't, they're not partisan. um And so, He'll probably, at the very least, try to explain this in a way that doesn't come across as partisan.
Speaker: But if hed if he rules in Trump's favor, it's going to be very hard to do that, right? Yeah, I agree with that. And that's why I kind of go to the pragmatic aspects of it, because he can rule against him here, but then Trump can still have his signature economic policy through other means.
Speaker: So I think that would be really helpful. And now, obviously, you shouldn't make your rulings based off of politics, necessarily outcomes. You should look at the facts before the case and then make your decision.
Speaker: But I think you'd be a fool to think that this isn't in the back of all the justices' minds. Oh, yeah, definitely. Definitely. And I think another thing that sort of required that we should think about anyway, and and I know they're thinking about it and they don't want to they don't want to address it and they've gone out of their way not to, is how much you have to sort of lean towards giving the president the presumption of good faith.
Speaker: right um And the court is, in in a lot of ways, required to give the executive the presumption of good faith. um The problem with that is we've not had an executive before that is willing to push the boundaries of that. right When Trump says we have emergencies of fentanyl and that's why we need tariffs on Canada, that's almost on its face laughable.
Speaker: right The amount of fentanyl that comes through Canada is just nil. Right. um And to taco its and then they're doing And this applies across the board, right?
Speaker: There is some pushback from lower court just judges. and I'm already on the National Guard deployments. A lower court judge who is a Trump appointee has said, you know what, you're just not you you're making that up.
Speaker: right um The Supreme Court has not gone that far yet. And they don't want to do that. They're trying not to do that. um But... will they have to here, right? um Especially ah because of the things that the Trump administration has included in their brief, right?
Speaker: they're protecting they're They're claiming, the lawyer the trump the lawyers for for the Trump administration are claiming that so the via the revenue is incidental. It doesn't really matter at all, so it's not really a tax to try to get around the idea that Congress controls taxes.
Speaker: But then they include in their brief, quotes from Trump where he's talking about how much revenue this is going to generate and how great this is going to be. um So this idea of taking the administration at face value about all this is tougher and tougher to kick to pull off.
Speaker: Yeah, I totally agree with you there. And Based on the oral argument, it's pretty clear that the court is not going to touch the question about is this truly an emergency or not? you know they They like to think 40, 50 years ahead.
Speaker: And I actually do agree that the president should be able to declare an emergency if there's actually an emergency. And you need to be nimble. But it gets really difficult when you have someone acting in big bad faith.
Speaker: And so they're going to try to avoid this question entirely and just either go through major questions doctrine, Or they're going to just say, you know what? The plain text is statute says this, and so therefore it is legal.
Speaker: um I think we've come out pretty heavy handed against the tariffs. And i do think that there is one decently strong argument, and that's the so-called donut hole argument.
Speaker: Basically, you know, the president, they can ban trade, they can add quotas, they can require licenses, they can do a whole bunch of stuff, right? That's ostensibly even more powerful than raising revenue. So you can't have a tariff?
Speaker: that That does seem like a difficult thing to square, don't you think? Well, in some ways, um because again, those are all like economic tools. But right in terms of, one, the way the court approaches things, but two, the way that the legislation has drawn up, it's I think it's at least interesting that they didn't put in tariffs.
Speaker: Right. but And if you believe in the major questions doctrine, that should raise questions in your mind, like sure why aren't tariffs in there? right um Because when you think of sort of emergency actions, I think you can make a case that these other things are more short-term emergency can't go to Congress for, but if you want to have a long-term tariff, why don't you have time to go to Congress?
Speaker: right Why don't you have time to do the standard procedure? and And I think that would be the argument against that. um But especially... For the major questions doctrine people, which the but you know the conservative majority is all in on the major questions doctrine, they have been when it applies to, say, President Biden.
Speaker: um It's hard to square the idea that, well, they mention all these other things, so we're going to allow tariffs, whereas your other your other rulings are, well, they don't explicitly mention this, so we don't allow it.
Speaker: Yeah, it's difficult to square that. And I think that's why Justice Kavanaugh, you know, he worked in the Bush administration. So he has a very strong view about the president's authority when it comes to foreign affairs and national security.
Speaker: So he's trying to avoid major questions altogether. He's trying to say, well, yeah, if you read the plain text of the statute, you know, he can do all these other heavy handed things. Tariffing, not a huge deal.
Speaker: And this has to deal with foreign policy, national security. All right. We don't need to get into major questions land. Right. And I think that's the the last point you made is the most important one, I think, if you if you're trying to look at what Kavanaugh is saying. he And he's saying, and he has said, and will continue to say, I'm guessing, that major questions doctrine does not apply to foreign affairs.
Speaker: yep And I'm not sure why, other than he thinks the president needs to be very nimble and and quick on that. It's like, okay, but the to to remove oversight just because it's foreign affairs seems a little bit rash, right, um which kind of leads me to the the last sort of doctrinaire kind of consideration is if you rule in Trump's favor here, you're basically saying he has unchecked power to do whatever he wants with international trade.
Speaker: yeah And that kind of goes against pretty much our entire system of government, right? We we go out of our way not to give anybody unchecked power. And this would be unchecked power. And I think you mentioned you when we talked earlier that Gorsuch um was really concerned about this, with the idea that if we can give the president this power, but we can't take it away unless we have super majorities because the president can veto stuff.
Speaker: um So this idea of letting the president do whatever the president wants to do ought to be, in my opinion, sort of anathema to what we what we are as a country.
Speaker: and I think Justice Kagan brought up a good point. She says, well, what is the point of all the other legislation pertaining to tariffs if they could just use this? It just becomes inconsequential. Yep.
Speaker: And and um certainly, you can't really argue that, well, Congress didn't understand. They understood. They made the laws, right? Somebody in Congress understood is that we have tariff laws. This law does something else, right?
Speaker: If you need to do tariffs, here are the tariff laws, right? That to me seems like the most reasonable reading of the differing statutes.
Speaker: Now, whether the court agrees is another story. And I think ah we we have some interesting takes on what we think the individual justices are going to do here. And I think you don't have to spend too long talking about what Alito and Thomas are going to do.
Speaker: They're going to rule for the Trump administration. I think that's pretty much a slam dunk. right What are the other people going to do? little bit more interesting to think about. yeah so So what's your prediction? I'm going to...
Speaker: I'm going to stick with 6-3 in Trump's favor. um I could see 5-4 in Trump's favor. I could see Gorsuch um being ah opposed because he does seem to have some reservations that the other justices don't seem to have.
Speaker: um So it could be 5-4. um He could get to play the role of Susan Collins and be concerned and opposed when they it goes through anyway. um That could be his his his lot in life here. But I don't see this court ruling against the Trump administration here.
Speaker: They haven't ruled against the Trump administration in anything really consequential yet. I hope I'm wrong. I really do. But I will be very surprised. How about you? Yeah. So Gorsuch, he got the Solicitor General to admit that you can impose a 50% tariff on gas powered parts due a hypothetical climate emergency.
Speaker: To me, he was signaling that, hey, if we grant the administration this power, the Democrats are going to go ham. And they're going to come up with their own emergencies.
Speaker: So to me, i think he's a slam dunk in favor of – ruling this as unconstitutional. good So you know prior to oral argument, I was in the seven to two camp.
Speaker: Basically, Alito and Thomas would rule in favor of the Trump administration and the rest of the justices would rule against them. um I could even squint and think and see a unanimous ruling.
Speaker: But after oral arguments, I can count four no votes. you know So the three liberals and Gorsuch. Amy Coney Barrett and Roberts...
Speaker: I think they are going to vote together how they're going to vote. I lean towards they're going to vote against the administration because of the pragmatic effects, right? One, Roberts wants to have the court look like they're calling balls and strikes.
Speaker: If they rule against the administration, it doesn't really change that much because the Trump administration could come up with the proper paperwork and impose their tariffs anyway.
Speaker: and I do think Barrett acts in good faith. She's concerned about the history and text. She was really engaged with her questioning. She said, she rather she asked, hey, is there any other statute that confers tariff authority that doesn't explicitly say that?
Speaker: And I have to trust both lawyers in their research. And they said, no, there isn't. um She was concerned about that donut loophole, so to speak, where you can ban, you can have quotas and all that.
Speaker: She was trying wrap her head around that. But ultimately, i think she's acting in good faith. And I just really think that the court is on thin ice for the reasons you mentioned with the interim docket, because they have ruled for Trump at an extraordinarily high rate, a really high rate.
Speaker: But I do think this is different because they actually have to come up with a reason. They can't just say no, right? They have to come up with a reason. And I'd like to agree with you. And especially, I mean, your reasoning is sound.
Speaker: And in a, in a, in it standing alone, I think it might work, but this is also the same court that ruled that Trump is not eligible for prosecution for anything he does as the president, right? They basically declared him above the law.
Speaker: If they'll do that, I can't be surprised by any ruling in his favor. and ah my My presumption is a court that's willing to do that is willing to do anything for him. And again, i hope I'm wrong, but I need to be convinced. i need I need to see it before I'll believe it. I just, I i can't, in in terms of prediction, I can't predict that they're going to do what I think would be the proper move, ah balls and strikes kind of move, because they've shown that they haven't done that yet.
Speaker: right So I'm waiting to be pleasantly surprised. And that's totally fair. Like, again, I went into this thinking this would be seven to two based on Kavanaugh's questions. I think he's firmly in the Trump camp here.
Speaker: So I think it's six, three at best ah with Gorsuch having a concurring opinion about how non-delegation doctrine is really important and we really need to follow it, blah, bla blah, blah, blah. um But I could also see five, four in favor of the administration with Gorsuch writing a blistering dissent.
Speaker: So Yeah, we'll see. We will see. and And then there's also the aspect about remedy, right? they Who knows what they'll do there. They could even punt this issue down to the lower courts too.
Speaker: They could declare that the fentanyl ones are legitimate, but the trade deficit ones are not. We'll see. i really see them saying if they do rule against it, I could see them saying prospectively, right. That we're not going to go back and make you refund tariffs because that would just be a mess.
Speaker: Right. And I think as you're saying with Roberts, he's not going to want to do that. And certainly Alito and, and, uh, Thomas and Gorsuch aren't going to want to go down that path. yeah So I can't see a world where they make the Trump administration refund tariffs.
Speaker: That would really, really surprise me. Yeah, but but we'll see. i think if it is against the administration, they're going to kind of punt that issue.
Speaker: I don't think they'll rule definitively and say, oh, the administration doesn't have to pay the tariffs, but they're going to let it simmer in the lower courts. It's going to take years to get the money back, I think. Yeah, that's probably true too. It's not going to be, they have to pay back tomorrow.
Speaker: Yeah. So once the ruling is out, we will have an episode and we will do a deep dive on their reasoning, both the affirmations and dissents, but that'll probably be around Christmas time at the earliest.
Speaker: Yes, they're not going to be any hurry to pass something out. We may have something to talk to you about but before then. It depends on on how things are going. um But we will we will be back and and enjoy some beers that I'm more in favor of, I think, than the than the the taste test today.
