In federal court, the US Court of International Trade, in my view, really did their job in saying, look, the teriffs that President Trump has unilaterally put into place on worldwide and retaliatory tariffs, the so called Liberation Day tariffs, which are a minimum of ten percent on virtually every country, and the terrifts focused on the issue of FENNO placed on Canada, China, and Mexico. Those were dubbed by the
court as trafficking tariffs. That those were an are unconstitutional and illegal under the law.
Why is that? How did that case get determined the way that it did.
Let's talk about it with a law professor who was involved in one of the two cases that were combined into.
This particular case.
Is a professor of law at George Mason University and the B. Kenneth Simon Chair of Constitutional Studies at the Cato Institute, the author of several books including Free to Move, Foot, Voting, Migration, and Political Freedom. Professor Elias Sohman joins us here on KOA, sir, welcome to the show.
It's good to have you, Thank you for having me, Thanks for coming on.
So let's break this down. I kind of gave just a brief synopsis of what was done sort of tell us why the constitutional argument and the legal argument that these tariffs don't fly was something that the.
Court agreed with. Tell us about this case.
Yes, the Court of International Trade unanimously ruled in our favor last week with a panel with judges appointed by both Democratic and Republican presidents, including one appointed by Trump in his first term. And the reason why is that the president was claiming a virtually limited power to impose any tariffs he wants in any amount, against any country, for any reason, at any time, for as long as
he wants. And the court ruled that the International Emergency Economic Powers Act of nineteen seventy seven, which the President said gave him this power, did not actually give it
to him. And they also said that if somehow the law did give him that power, it would be unconstitutional because Article went of the Constitution specifically gives the power to impose tariffs to Congress, not to the president, and an unlimited, unconstrained delegation of that power would ylate constitutional constraints on how much of its authority Congress can delegate the executive. So the law doesn't give him that power, and it would be unconstitutional if it did, and sort.
Of put a pin on this point.
And this is a quote that was included in the Courts decision from Federalists number forty eight, which is written by James Madison, known as the father of the Constitution. Quote, the powers properly belonging to one of the departments ought not to be directly and completely administered by either of
the other departments. To me Professor Elias Soman, this basically says that, look, if the power is given to Congress to the legislative branch, they can't just go and say, hey, executive branch, do whatever you want on this issue.
We got your back.
Yeah, that's right. So admittedly, the Supreme Court over the last several decades has been kind of waxed on non delegation, but they have said there have to be at least some womits both liberal and conservative justice have said that.
And if there are any limits at all, then this virtually total delegation of the power to tariff that Trump is claiming here DAK cannot fly because this is sort of the equivalent of Congress passing logists saying that the president can impose Harris and every feel it's like, and if anything violates the non delegation rule, then this have to It.
Almost sounds like the beginning of a joke, doesn't it.
A Trump judge or Reagan judge and an Obama judge walk into a US courtroom and leave unanimously striking down President Trump's sweeping tariffs. But to me, that's actually very significant. You have the strongwark conservative president of Ronald Reagan appointed one of these three judges on the panel. You have a Trump judge himself one of his appointees on the panel, and an Obama judge, so a majority appointed by Republicans.
Now, you never know.
The Supreme Court shows us this that whether a judge or a justice is going to be going in the direction that you might expect, they would sort of ideologically or breaking down. But to me, that should give some confidence to average Americans that, Okay, this was a reasonable decision considering the facts and the law.
I think. So it's clear to sort of both conservative and liberal judges were on the same page in the panel, and the judge appointed by Trump. People familiar with the Court of International Trade actually initially suggested to us, you know, this was a bad draw for US because he had been previously an associate of Robert Leitheider, who was a major advisor to Trump in his first term, supporting very
protectionist policies. So disjudge, before being on the bench, had a history of being associated with protectionist ideas himself, and yet he still recognized, as did the other two judges, that this kind of claim of virtually unlimited power had no legitimate legal basis.
Again, we're talking with professor Ilia Solman, who is at the antonin Scalia School that you have a law school that is at that institution in washing outside in Virginia. Excuse me, professor, I want to ask you to bring us up just speed on where this is at, because I know that it has been appealed by the administration and that this has sort of been put on hold
in terms of what the court ruled. So tell us specifically what the court decided as far as a stay or decided as far as the implications of the ruling, and then where we're at as far as the stay from additional appeals court.
Yeah, So the case has been appealed to the US Court of Appeals for the Federal Circuit, which is the appublic court that has jurisdiction over the Court of International Trades. With respect to the stay, I have to get into some annoying legal gobbledy books, but in this case it is actually legal gobbledy book that had some important practical significance.
So far. What the Federal Circuit has done is issued what warriors call an administrative state, which is a very short stay to give the court time to consider whether there should be a longer stay pending appeal. If the stay pending appe heel is issued as the government wants it to be, then the Court of Intranstional Trade decision will be put on hold, possibly for as long as
a pellet litigation continues, which could be many months. On the other hand, if we defeat that motion for a state, then the Court of Interrational Trade ruing will go into effect, and then collection of the tariff will stop very soon, and so will the enormous damage that they're inflixing on
the economy. Thousands of businesses, whytt our clients who depend on imports, millions of consumers who face higher prices, and also who are hurt by to slow down in economic growth that is going to happen if these tariffs are allowed to continue. So while the issue of a state and what justifies a sayer doesn't justify it is a highly technical legal issue, and you and I can talk about so of the factors that go into it if
you want to. In this case, this legal technicality does have a big significance for many millions of people because it will determine whether they will get quick relief from the tariffs or whether relief will have to wait possibly for some months or even as much as a year or more if the case. Also, what we get to the Supreme Court.
One thing I want to hit on with you, Professor Elias. So we've just got a few minutes left. But the Court in its ruling, and this is the court that deals with these trade issues. Going back, for example, to the Richard Nixon administration, he had a variation of a tariff that was sort of its own brand of an imbalance of trade that it was trying to address. It
was more of a monetary policy sort of matter. But nevertheless the point is that the objective was to address a trade imbalance, which is supposedly, at least for the
world wide and retaliatory tariffs. Professor, supposedly, the emergency basis justifying those Liberation Day tariffs, well, the Nixon tariffs, as I understand, it motivated Congress to pass more limits on the president's unilateral authority regarding trade, and those very limits, because they concern imbalance of trade, apply here as well.
Yeah, so that decision on Nixon's tariffs was under the predecessor's statue. To the statue to the issue here, it was decided back in nineteen seventy five in the Yoshida case, which was the subject of much debate between US and our opponents in the litigation of this case, and also was carefully considered in the Court of Intransflate Trade opinion. The bottom line is it was not decided under i EPA, but under the predecessor's statue, which, as you say, was broader.
In addition, even that decision, if you read the Yosheta decision, it does not say the president could just impose any terriff he wants. It rather said that the tariff power was carefully limited. It had to be constrained by the schedule of tariff set up by Congress and buy some other factors. And it's specifically said in that decision as in this more recent decision in our case than an unlimited delegation of car powers the president would be unconstitutional.
So whatever you think of that case, it does not provide a precedent somehow justifying you know what Trump is trying to do.
Now, unfortunately we're out of time. But one final question. You sort of touched on this before, but where do we go from here?
So within the next few days we are likely to have a decision on the motion for a stake, which which whatever is resolved on that, there will also be a decision on the merits, probably within a few weeks, but maybe taking a bit longer from the Federal Circuit.
At that point, whoever loses could potentially appeal to the Supreme Court, and the Supreme Court, of course, could decide to take it or not take the case, as they so choose, And it's always dangerous to predict most cases that are that are petitioned today the courts just refused. There is perhaps a hired an average state chance that they might take this case because of its significance.
I think that there is in this regard, and it will be fascinating to watch Professor Ilias Sohman, Kudos to you and the Liberty Justice Center on good work here. And also Attorney's General had brought in the.
FEDANL side of the case.
And while I believe FEEDANEL is a massive concern, I'm not sure that unilateral TERRFF authority to the president is justified here even in that case, and I think the court ruled it right there. But nevertheless, kudos to you all for this case. I do think it was the right one to bring in in this decision. And I should note that that one case regarding these retaliatory tariffs that you were involved in involved five different businesses that
were affected adversely by those teriffs. But Professor Solman of George Mason University always great to talk with you, sir, thanks so much for joining us today.
Thank you for having me on once again.
Professor Ilia Sohman joining us. Check out his recent book.
This is especially relevant when it comes to the immigration issue right now, Free to move foot, voting, migration, and political freedom. I'm Jimmy Sangenberger in for Mandy Connell.
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