- This is terrible.
This is, don't kill anybody, and I'm so sorry for these poor children who-- - The official position of the long cast podcast. Do not kill anybody. - Okay. (upbeat music)
- Welcome to Law and Chaos, where the tariffs are illegal, and the Supreme Court justice is hate each other's guts, if 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 Diane, 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 snow's bullshit. When I was coming down like that last night, I was like, "You've got to be kidding." (laughing) - I know.
- We're gonna mostly talk today about the tariff decision that came down on Friday, but before that I wanna 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 gonna make it a monthly thing for subscribers. You guys will get to enjoy Andrew. I think next month is gonna be magic together. - Oh, magic, the gathering, by popular request.
- All right, looking forward to that, that will be available to all subscribers on patreon.com/loncast pod or on sub-stack@law andcastpod.com.
- Yeah, and let me just say that we always say,
take care of you when you were first. So 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 together and you can't afford.”
I'll be happy to send you a copy. I know I shouldn't help us evade our unsubscribe or protest, but there you go. - All right, we're gonna talk about the tariffs now. We've got the deepest of dives, but before that.
- Dump, dunk, dunk, dunk, dunk, dunk, dunk. Okay, I regret to reform you. The Judge Island canon is back on her bullshit. - Boy is she ever. - As you all will 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 canon dismissed the stolen documents case on the theory that special counsels are unregal.
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, canon interceded and blocked the release of Volume 2,
which dealt with the stolen documents case.
“The punitive justification for that was that at the time,”
the criminal cases against Trump's henchmen won't now to and Carlos Deoliver 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 DC,
the report on that investigation was turned over to Congress. - Okay, but then five seconds after being sworn in, Pam Bondi dropped the appeal of Smith's disqualification and she dropped the charges against Nowta and Deoliver, which were the justification for keeping Volume 2 bottled up.
But at that point, the government switched sides and took the position that Volume 2 should remain sealed forever or possibly even destroyed, which obviously Trump and his individual capacity and his henchmen agreed with.
- Yeah, and at the same time, the night 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 punitive 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, night and American oversight,
appealed that to the 11th circuit. And last week, they asked for a man-damous ruling, staying lower court proceedings because they worry (laughs) some foreshadowing that Judge Cannon will order the destruction of Volume 2 in its entirety
and then their motion to intervene will become loot. And then Trump and the Department of Justice working in Kahut's filed this in technique motion, saying this is too much and how dare they and please put an end to this charade by,
you know, boring release of Volume 2 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 copy out 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.
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 Lindsey 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, Lindsey Halligan continued to sign her name as U.S. attorney
for the Eastern District of Virginia. I shaded them 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 Komi and Latisha James prosecutions only counted within those two cases, not for other cases, even in the same district. They took the same position with Alina Habe and New Jersey.
I mean, look, it's not an exact match since special counsel Jackson Smith was only working the Trump cases. - No, I think it's a perfect fit. Judge Cameron 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, DC. That's totally outside to remit.
“So I think you're analogy to the U.S. attorney's cases”
wholly apt. Right, Judge Curry didn't say, Lindsey Halligan, you get out of E.D.V.A. 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 Cameron 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 night
institution of E.A.A. plus work by her first there. Anyway, I suppose the 11th Circuit could reverse this at the behest of the first nights in the American over seeer. - No, well.
- 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 a tie.
“I think that ship will have sailed by the time”
the King Jeff where he takes back the gaveling January of 2027. The statute of limitations effectively will have her. Oh, and while we're speaking of unlawfully appointed special counsels, the judges in the Eastern District of Virginia exercise their lawful authority
to appoint a U.S. attorney under 28 U.S.C. 546D since that position is vacant. The 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 Blanch, the deputy AG dunked all over him on Twitter. It's like so performatively greasy and vile. Okay, 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 Cory Richardson who murdered her husband. - Oh, a legend.
- Oh, okay, allegedly. The state is trying to prove that to a jury, which started today. Prosecutors say that Cory 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. - Okay. - He was indeed sick and 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, just looking those pills into a mosque, our 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 as she wouldn't have gotten the money. I'm busy, but seems a bit extreme, not gonna lie.
- Wait for it. In 2023, the year after she allegedly killed her husband, Richins published a children's book about coping with grief after the death of a parent. (laughing)
- 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 of it as presents to exist 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.
(laughing) - Got it, bit, did not see that one coming. - No, don't know, 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 musk of you.”
(laughing) (laughing) - I like the idea of knowing that the father is kind of always lurking over, but not what's in the thought bubble above his head.
- So, okay, here's another. This book should be flagged on good reads. 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, look, 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 my bed.
- Out. - Hey, hello, and wigs to cheer up. (laughing) A little point blank suck. - Oh, this woman is pure chaos.
- This is terrible, this is terrible. - 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'll be with you, have a ham and fentanyl said,
which on Valentine's Day,
“wash it down with, I think the pills would be rattling”
around in the bottom of the copper mug. - I can't, what do you want for me?
I don't know how from fentanyl.
All I know is that the cops every time they get near anybody they like swoon and have sympathetic papers. So, I guess fentanyl is that strong. - Okay, it puts you up in the clouds popping out from behind the, this is terrible.
This is terrible. Don't kill anybody, and I'm so sorry for these poor children who the official position of the long cast podcast do not kill anybody. - Okay, moving on, we're gonna go to California
where Elon Musk is being sued by a group of investors who lost money on Twitter stock back in 2022 and claimed 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 have massed 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 see to 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 not, apparently in California, you don't need 12 for civil trials, but there are not nine people in the greater Los Angeles about the politics area who do not despise Elon Musk, I suppose. - I mean, girls say, I really love the jury
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.
(laughing) - Two votes. (laughing) - She got struck. - Yeah, I mean, you think.
Okay, so thank you to reader David Remis 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 [email protected].
Thank you to Kareem McDaniels, JDN, Jeremy Abraham, and Chris Skapa, or Shapa, I appreciate you either way. - And on patreon.com/law and chaospot, a big thank you to Scott Keenan, Laurie Higgins, Jeremy Moore, Rachel Austrow,
and Lauren Weedle, or Weddle, I appreciate you either way, so to say. - As do I. - As do I. (laughing)
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You will get our bonus episodes. You will get extended episodes, add free all that good stuff. Remember, we're gonna take a quick ad break, and we will be right back.
(upbeat music) (upbeat music) - 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 have a thought about this one?
- And funny, yes, I, the resident atheist
on this podcast, have some thoughts.
“I have written about this a lot for our blog at lawncastpod.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 10 commandments and in particular,
the Protestant version of the 10 commandments. It was blocked by a trial court, and then I'll call it to find Providence on appeal, happen to get the most liberal panel possible at the fifth circuit, which upheld the trial courts
in junction, 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 10 commandments, displays and Kentucky way back in 1980.
But now, thanks to Chief Justice Roberts and his Christian Nationalist Haller monkeys on the Supreme Court, no one is quite sure the state of any of these establishment clause cases, but we do know that the only court that can decide
is in Washington, DC at one first street.
Everyone else, including the fifth circuit, Stone V Graham is still good law. - Oh, like that, ever stop 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 right for challenge yet because none of the schools
have hung up one of these 10 commandments displays, so no one has been injured yet."
“Well, why'd 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, so... - They're being replicated across the-- - Yeah, because why not take your shot? And again, they're gonna be replicated
in red states across the country. - Okay, well, we're gonna 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. Right? 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. I like, it will be out of spite for his fellow concerns. - Sure. - He's gonna say, "I'm not walking away "and letting these spineless wimps have the last word." - Great, it is clear that even though he's the only one
willing to be quite so evict operative 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. (laughs) But before we get to get to the rationale for the decision
and the fallout, I want to talk about the animus between the justice, which was really on display in this 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.
Okay, so far so normal. But then the Roberts court decided that it wanted to block democratic presidents from doing stuff. So the conservatives dumb it 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
completely 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 a 22 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,
then he can't do anything to regulate carbon dioxide. - Okay, a greenhouse gas, right. Which is a neat trick if you're the conservatives who just solidified what's gonna be a majority for properly a generation.
- Yeah, not if we do something. - Not if we do something about it.
- Okay, so the tariff ruling was six three,
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 just as Cagan wrote for the majority, she said straight up statutory construction resolves this case for me, I need no major questions,
Tom, on the interpretive scales. Also she had his hilarious footnote or she snarked it. Just as gorsuch claims not to understand this statement insisting that I now must be applying
a 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 relocate on his own,
our old debates about other statutes unrelated to the one before us. What matters here is only that I eat as delegation refutes the executives assertion of authority to levy tariffs
without any help from the major questions, doctrine. - From which you may infer that Justice Gorsuch is being very weird about the major questions, doctrine, and his own concurrence. In fact, he called out every other Justice
on the Supreme Court by name, except Chief Justice Roberts, although I kind of 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 Cagan gave this lecture/interview at Harvard Law School as part of what was called the Antonin Scalia Lecture series.
In which she famously said, "We're 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 know? - Yeah, you know, the truth of the matter is,
you wake up in a hundred 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 not remotely true when Justice Scalia joined the bench. - Yeah, so that's Justice Kagan saying that Antonin Scalia's deeply right-winged judicial philosophy radically transformed how judges left, right,
and center analyzed the meaning of a law. Instead of asking what Congress meant, judges now focused on what Congress said. Listen, 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, the EPA in 2022,
which invented the major questions doctrine, which is basically a declaration that the rules were going to be whatever the conservative justice is 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, 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 are no Antonin Scalia." Which is not. (laughs)
- 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 Koney Barrett. And so here you have Justice Kagan saying that the major questions doctrine
Isn't something Scalia would have signed onto.
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 what? - Right, so that brings us to the three conservative justices who wrote the majority holding. It was a Robert's holding.
They agreed with the liberal statutory binding, 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 hear. 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.
Sometimes ends up going against his own hyperpartisan interests.
“- Yeah, I've always been convinced that's what happened”
with Boston, I'll be 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 understands the people of the, he's got weird.
He did, he did spend a lot of time in Colorado,
but like, calm down, Georg, you graduated
from Georgetown prep just like, "Cabin' off." - This is an Andrew, I so wanted to believe that Boston was something I'll send out. It was not, you are absolutely right. Anyway, Gorsuch is in love with his intellectual perceived
superiority and this major question's doctrine, which just so happens to give him and the courts other right wing justices an enormous amount of power. So he is super aggressive about policing the boundaries of it
and just to spare it sort of push back a little bit on the major question's 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 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 for maintenance. Scalia, we don't hide elephants in households. Gorsuch isn't happy with even this minor refraising of the major questions, doctrine, because how can you fail to see how marvelous
and perfect meals big ideas? So he spends, I'm not making this up, 10 pages, sneering it bare. He particularly makes fun of her for saying that this is a question of common sense in interpreted.
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 mixing 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 all of yourself. - Right, okay, so Roberts wrote the majority opinion.
Kagan wrote for the liberals. Gorsuch wrote for himself. He yell at everyone and say, how stupid they all are, including Thomas Lido 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 four such to get bent. Thomas wrote a dissent and Kavanaugh wrote their principal dissent joined by Thomas and Lido.
Plus, just Jackson wrote a brief concurrence saying, this is not what is wrong with you people, and I know you love this, ain't I? - 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 gonna break down that Jackson concurrence
in the subscriber bonus, that will be for you guys, who are subscribers at patreon.com/loncauspod or lawncauspod.com for everyone else. We're gonna go to a quick ad break, and we will see you on the other side.
(upbeat music) And we're back, okay. So that brings us to the three dissenters, whose positions can be summed up essentially,
We want Trump to win, so the major questions, doctor,
and does an apply here for reasons I have just pulled out of my ass. - You aren't that exaggerating. I mean, Justice Thomas says that imposing levees is not a core congressional power,
and is thus not subject to the non-delegation doctor. - I mean, leave aside the fact that taxation and levees are the same thing,
“and that is obviously one of the 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, aggregating to themselves the power to define what is a major question. Instead, they're sticking 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 made up. - You see, a centaur is a half-man half horse, and a minute tar is a half-man half bull,
so in a battle to the death, the minute tar would definitely win. Only a fool would say, otherwise. (laughs)
- You didn't touch 13th base by the mystery bear, right?
“Like, okay, so Kavanaugh, Thomas, and Elito”
for various invented reasons, all agree that I eat, but does to give the president the power to impose tariffs, which is why the majority opinion correctly accuses them of just parading the government's position word-forward 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. - Yeah, well, fix that.
- Okay, so that brings us at long last to the actual holding, the reasoning in this case. It was a six-three decision written by Chief Justice John Roberts, he said that the International Emergency Economic Powers Act of 1977, affectionally referred to as IEPA,
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 IEPA's 50 USC section 1702, subsection A1B, says that the president
in response to a declared emergency, may and I do want to read all of this for give me, may investigate, black during the pendency of an investigation, regulate, directing compelled, nullify void, prevent or prohibit any acquisition holding
with holding use transfer withdrawal, transportation, importation, or exportation of, or dealing in, or exercising any right, or power of privilege with respect to, or to transactions involving any property,
which any foreign country or any national, there are as any interest by any person, or with respect to any property subject to the jurisdiction of the United States. I mean, those are not, but I'm glad you read it
because it highlights just how strain this argument has been from the jump, right? 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, if so fatso, the president has the power to impose tariffs.
And the majority opinion says like, no, that's ridiculous, don't read that law that way, regulating importation, regulate, dot dot dot dot dot dot, importation does not mean the power to impose tariffs on imports from any country, of any product,
and 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 IEBA,
and the law could not possibly mean you could just tariff Switzerland because you think somebody in the Swiss government is mean to you? Right. So, okay, 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 and his first term,
ever thought IEBA gave them the power to impose any tariffs, and this is a direct quote, little-own tariffs of this magnitude and scope, even as past presidents have routinely invoked IEBA for its actual purpose,
which is to freeze hostile foreign bank accounts in the United States, and so to the converse. Prior presidents, including Donald Trump and his first term, have imposed temporary tariffs under various other statutes, but none of them have ever cited IEBA as a basis for doing so.
So, bottom line, six justice has thought it was beyond obvious that the plain language of IEBA did not authorize the president to, like, erratically imposed tariffs at his will, which, like, you know, shit.
“Um, and 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.
Right, you titled that one, "You do not under any circumstances.
Got a hand it to Chief Justice Roberts, which I can 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 mean, 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 the reconstervative justices
who invited the president to pick consumers' pockets for a full year before eventually telling him to knock-- Sorry, before eventually telling him to knock it off. Once they'd insured that the chaotic fallout would persist for the rest of his term,
we will not be applauding like train 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. Iypa 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 dock at rulings to 11 when those cases involved were not for anybody else. Only for government involved cases, right? Every bloody time, a lower court said
the 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 if the trial court has to abide by the ruling, even as he appeals it,
even when that party's 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 that justice would wind up staying it anyway. So trial courts started building these stays in themselves, saying, is 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, right? 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 through sand in the gears of the terror case. And then, as the government was busy appealing the decision to the federal circuit, the Supreme Court issued its holding in Trump, Picasso, in which it struck down nationwide
in junctions 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 talked about here,
“and 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 terrorist 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, okay, Trump, now you 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 Casah, the government had been making these arguments about the scope of injunctions, right?
And they made them below and said, you know, narrowly tailored the relief and the CIT panel said, when he's 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 two plaintiffs, which were five separate companies, they are unlawful as to all. And then there's that quotation. All duties, impose and exercises 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 I section eight,
clause one of the Constitution, right? And so with the CIT panel is saying, constitutionally, they can't craft some remedy where 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, I think it's New York.”
It doesn't matter where it's sitting. The point is, it's 12 judges, it's, 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 gonna 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 to pinion, but before the trial court could reconsider its injunction in light of Kasa,
the Supreme Court reached down and granted Cerciori and grabbed that case. So that deprived the lower court of jurisdiction. It was in no position to craft a new injunction 'cause the case wasn't in front of it anymore.
And that, in short, the Trump was gonna 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. It was obvious that there were at least five votes for the straightforward proposition that Ayypah does not authorize Donald Trump to collect tariffs.
And second, the justice is also new
that every second that these illegal tariffs remained in place was going to be an enormous disaster. Right. So Justice Barrett asked Neil Cadiol, who's the lawyer arguing for the plaintiffs,
challenging the tariffs. She said, if you win, how is this gonna work? It seems like it could be a mess, which like, yes, no shit. Cadiol's answer was, for his clients at any rate,
the government had promised to refund in the litigation. And it said, let us can keep collecting these taxes. We'll give you learning resources or VOS elections. We'll give you your money back.
Right. The particular party here. But for everyone else, you're gonna be chaos. Cadiol said, there's a whole specialized body of trade law, the refund process takes a long time.
There were any number of claims
and equitable relief and other things. Yeah, and Cadiol is not wrong. But I wanna 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 Cavana write a 63 page descent 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 tariff subject to 19 USC Section 1484. And what happens is that the importer must post a bond with the Customs Importer Protection at CBP
and pay estimated tariff 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 an 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 for 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 your 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 Cachel was referring to in 19 USC section 1514. And under 1514, CBP has two years to review your protest and then they can deny it. They can allow it in a whole or in part.
And then if CBP decides to do anything other than allow your protest and full,
“you have to start all over again with a lawsuit”
in the Court of International Trade, challenging that decision. It's an administrative appeal and you're limited to the record developed on appeal. And it's just, it is going to be that mess.
So now you see why the timing is important, right? 'Cause November of 2025, the government had only liquidated about half of the tariffs paid into US coffers under IEPA. But by dragging its feet until the end of February,
now most of those claims had been liquidated. So the importers can't just file new paperwork and get back the money that they already paid. You're gonna have to try and recoup it through this adversary process.
And even if they win,
They're not gonna give the money back to consumers
who paid for the tariffs and increased costs.
“And of course, I mean, a lot of the importers to be fair,”
ate the cost rather than passing it onto their customers, which, I mean, not to digress too much. But that Donald Trump's theory of the case here was that the sellers in other countries would take the haircut rather than, you know, 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 gonna 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 cost $30. I am not getting that money back from the hippie
to be collectively owned coffee shop down the river. 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?
“'Cause a lot of the importers ate the cost rather”
than pass it onto consumers, although, you know, this is even in that case. This is gonna be a totally inefficient way to get the money back because the importer was probably gonna have to hire a lawyer to go through this adversarial administrative
and then courtroom process. So he's not gonna be made whole either. - Yeah. - It's just a mess. - And meanwhile, Trump is making insane noises
about all the tariffs that he's going to collect. Now that Scott has allowed him to take the gloves off, he has already announced a new illegal tariffs and we're gonna talk about what happens next with those after our last ad break.
(upbeat music) (upbeat music) - 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%, 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. This is the same playbook, they ran with the alien enemies act when they fertilized the national guard, when they decorrently claiming that they must mandatorly 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 and quite this way and that means that there's no case precedent on it. There's no Supreme Court decision you can point to, which says like, no, it'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.
This is complete blank slate and the law uses definitions written by economists. - Yeah, the law is codified at 19 USC section 2132 and it says that the president shall proclaim for a period not exceeding 150 days,
a temporary import search charge, not to exceed 15% on goods imported into the United States if one of three conditions are met. And the executive order that Trump issued on Friday
sites 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 gonna 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 we did, it will define a balance of payments deficit as when a country imports more goods,
services in 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 wanna 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 some to zero and here's why. But let's say Americans by t-shirts from China
That are worth a billion dollars.
China hands us the clothes.
“We hand them a billion dollars in US currency.”
Again, this is a gross oversimplification. Let's make it even simpler by stipulating this, 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's zero's 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. Diplomets 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 devaluation of the currency. - And the solution they hit on was to have the 44 signatory nations agree to peg their currencies to the US dollar as a reserve currency.
Meaning that one pound or fronk or mark, or whatever, in local currency,
would always equal a certain number of US dollars.
If the local exchange rate exceeded that fixed peg by, and this was the agreement, more than plus or minus one percent, the countries would have to intervene in their own foreign exchange markets
and either buy or sell more US dollars. And the US dollar intern was set at a fixed price tied to $35 an ounce, a gold. - So foreign governments in 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 peg to the dollar,
then consumers are gonna 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 US would decrease its capital account
by keeping more dollars at home. But turns out, there was a much better way to fix the problem and then it was to get rid of bread and wood, 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 a wrong portion right there. Anyway, that's why, until now, no president has ever declared a balance of payments deficit
because there isn't one side of 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 in other countries aren't buying enough for Muslims.
They've been taking advantage of the West for 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 is the show drop.
So lawsuits have already been filed, we'll see. - Okay, counterpoint from the president on true 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 such a bad rule like that, 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 descent from the tariff's opinion. And to get there, after Revitra a little bit on how deeply weird Kavanaugh's descent is right?
And we talked about the dynamic, but Kavanaugh's descent begins by protesting that all these doing is, quote, neutrally interpreting and applying the law,
which 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.
I'll be at perhaps with a few additional procedural steps that IEPA and 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. - I, 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% 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 Robert said. You know, footnoting is 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 contained various combinations of procedural prerequisites required agency determinations and limits on the duration amount
in scope of the tariffs they offer us. 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 we'll say. - Yeah, and look, I appreciate that Donald Trump is not a scholar, a legal scholar. I know he says that he reads good or than everybody else.
I assume what happened here is that he went to, solicitor General John Sauer in the rest of the lawyers and said, show me the good part and they were like, look, I hear. But like, A, this is in the dissent.
It's not binding Trump keeps saying like, "Oh, I'm a greed." And like, 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, "E, let's not sweat the details. Trump could probably tear off anyway." So, you know, why are we being so picky about checking the right button?
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, blighters 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. Like, that's not law, that's just bullshit.
“- Yeah, but I have to say, is I think Trump is going”
to seize on the descent and probably will keep trying. And, you know, for me, it's gonna be an interesting question to see what gets teed up after the Section 122 tariffs fail. Like, is it gonna be licensing fees as we just talked about? Is it as per question we receive from listener Andrew G?
Is it gonna be Section 338 tariffs? I did that to 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 propose to deal with how to get those tariff refunds. This is gonna be hot mess. And it's the Supreme Court's fault. And the fact that they hate each other
does not make it any less, they're 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 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 an online chaos checklist. It's production of razor to media LLC.
Isn't it solely as entertainment? Does not constitute legal advice? It does not form an attorney client relationship. This shows research and written by us is done and produced by Bryce Blank and Angle.
Blank chaos podcast copyright reasons to media LLC all rights reserved.
