This week, the Supreme Court will consider the constitutionality of Trump’s tariffs. But the implications are far greater than trade policy. How the ruling could change the scope of presidential power.

Guests

Lori Wallach, director of the Rethink Trade Program at the American Economic Liberties Project, a non-profit in D.C. focused on the concentration of economic power. Author of “The Rise and Fall of Fast Track Trade Authority.”

Mark Joseph Stern, senior writer at Slate. He covers the courts and the law. He’s also the co-host of the Amicus podcast, a show about the Supreme Court.

The version of our broadcast available at the top of this page and via podcast apps is a condensed version of the full show. You can listen to the full, unedited broadcast here:

Transcript

Part I

MEGHNA CHAKRABARTI: On Inauguration Day, January 20th, 2025, President Donald Trump said yet again that his favorite word is:

DONALD TRUMP: I always say tariffs is the most beautiful word to me in the dictionary. Then I was reprimanded by the fake news. They said, what about love, religion and God? I said, I agree.

Let’s put God number one. Let’s put religion number two. Love, I don’t know. We gotta put that number three, right? And then it’s tariff, because tariffs are gonna make us rich as hell. It’s gonna bring our country’s businesses back that left us.

CHAKRABARTI: Since that day, the Trump administration has issued sweeping, aggressive, and wildly fluctuating new tariffs on almost every country in the world.

From January to April 2025, the average applied U.S. tariff rate rose from 2.5% to an estimated 27%, the highest level in over a century. Now, this included tariffs on China as high as 145%, 50% tariffs on Brazil and India, 35% tariffs on Canada, 25% tariffs on Mexico, 30% tariffs on South Africa.

The list goes on. According to the U.S. Treasury in September, tariff revenues totaled more than $31 billion, bringing the total year to date figure to $215 billion. Now recall, tariffs are paid only after goods have entered the United States, which means that the U.S. importer pays them. Those costs get passed on to you; the consumer, or companies eat the costs.

Or sending nations simply reduce how much they export to the United States. In other words, that revenue isn’t necessarily coming from abroad, it’s going to the U.S. Treasury from consumers right here and domestic companies.

Now, all of this tariff specific language actually ignores a huge legal question. And that is: Are President Trump’s tariffs even legal? Does he have the constitutionally conferred power to slap tariffs on the world? Because the tariffs themselves are not an issue. The U.S. uses them all the time. The issue is who has the legal power to levy tariffs, the president or congress? Tomorrow the United States Supreme Court will hear oral argument over exactly this question.

Here’s President Trump on Sunday talking to reporters on Air Force One.

TRUMP: I think it’s the most important decision, one of the most important decisions in the history of our country. Because without tariffs, without our being able to use tariffs freely, openly and in every way, we are really, would suffer tremendously from a national security standpoint.

The national security of our country’s at stake. It’s the biggest, I think it’s one of the biggest decisions in the history of the Supreme Court.

CHAKRABARTI: President Trump added on Truth Social, that same day:

“If we win, we will be the richest, most secure country anywhere in the world by far.”

All capital letters there.

“If we lose, our country could be reduced to almost third world status. Pray to God that doesn’t happen.”

But the Supreme Court’s decision could transform more than just trade policy or the economy. And in this point, President Trump was right in that clip you heard. If the highest court allows the president to issue unrestricted tariffs without congressional approval, it would be one of the greatest expansions of executive power in this country’s 250-year history.

It would essentially give the presidency a powerful and unchecked tool that could be used against any country, any industry, any business, whenever, and however the president likes. So today we’re going to examine the arguments the court will hear for and against this historic expansion of presidential power.

And we begin with Lori Wallach. She’s the director of the Rethink Trade Program at the American Economic Liberties Project, that’s a nonprofit in Washington focused on the concentration of economic power. She’s also author of “The Rise and Fall of Fast Track Trade Authority,” and Lori has more than 30 years of experience in international and U.S. congressional trade battles.

She’s testified on this issue before Congress dozens of times. Lori Wallach, welcome to On Point.

LORI WALLACH: Thank you very much.

CHAKRABARTI: So first of all, elaborate as much as you can, what you understand about the president’s argument for the dire necessity of tariffs. You heard in that clip that you talked about, it’s for national security.

What more has he or his administration said that would support this national security argument?

WALLACH: The rhetorical arguments, and then there are the legal arguments. And the administration effectively is squabbling over what kind of tariff authority it has, because it’s not an all or nothing at stake here.

The administration effectively is squabbling over what kind of tariff authority it has.

Lori Wallach

There are lots of clearly delegated tariff authorities where Congress has said if other countries are cheating on trade, for instance, dumping, selling below the cost of production, that’s dumping. Or if a country is threatening national security and what they’re doing with trade, or there is a product we need for national security, Congress has delegated authority for presidents to use tariffs, and the Supreme Court has tested those delegations.

And found them to be fine. At issue in this case is whether a president has entirely unbounded unilateral authority under a particular statute called the International Emergency Economic Powers Act. Or IEEPA. And President Trump and the administration want that totally unchecked, unbounded authority. Because it basically provides the rights to, as you said, unilaterally leverage any kind of threat or reward to any political ally or enemy, to any country, to any industry.

And that is an unbound tariff authority that is in question in this court case.

CHAKRABARTI: Okay. So we will really leaf through in detail IEEPA in just a few moments, right? Because that is the central act that, as you said, will be debated before the justices tomorrow. But I just want to go back over what you said here a minute ago, the examples that you gave.

In terms of, there are instances which the U.S. has in the past used tariffs for, literally for what the president is saying now, for protecting national security. But in every one of the cases you just talked about, or test cases you talked about, Lori, you also said, Congress says that in that case, issuing a tariff is, or levying a tariff is appropriate.

The implication being that ultimately Congress has to provide the approval for tariffs.

WALLACH: Correct. So it’s worth stepping back a little bit. The U.S. Constitution has one of the sharpest checks and balances in the entire document with respect to tariffs and trade. And folks sometimes don’t remember that in a way our country’s independence was spurred along by a trade war.

The U.S. Constitution has one of the sharpest checks and balances in the entire document with respect to tariffs and trade.

Lori Wallach

The Boston Tea Party was the colonial protest against King George’s unilateral imposition of tariffs on tea and other imports, and the founders with that enormous power of tariff in mind in writing the Constitution. In enumerating Congress’s authorities put not one but two explicit clauses of exclusive constitutional authority to Congress in Article 1, 8.

So that the body closest to the people, a diverse group of people representing different parts of the country and different people, would set the policy. Not the king, the president. So the Constitution says the Congress shall have the power to lay and collect duties, which is an old-fashioned word for tariffs.

And the Congress shall have power to regulate commerce with foreign nations. So it’s two separate, explicit, Hey, Congress, you got this, not the president. Now over the 248 years of Congress delegating authorities, there have been different ways Congress has said, Okay, we’ve got this authority, but the founders gave exclusive authority to the president to represent us to foreign sovereigns to negotiate internationally.

The Constitution says the Congress shall have the power to lay and collect duties, which is an old-fashioned word for tariffs.

And the Congress shall have power to regulate commerce with foreign nations.

Lori Wallach

This is the check and balance here. So we’re going to delegate our control over the content of tariffs and trade policy with certain parameters, so that they can do the talking to the other countries, and then we’re going to make them come back and we’ll approve what they did or not, depending. And there’ve been different methods of doing that.

My book lays out six different ways there have been power sharing. In this instance, President Trump is just presuming, not even king, sort of God-like powers under this particular statute. The statute IEEPA may or may not authorize some tariff authority, but it can’t be constitutional given the clauses I just read.

CHAKRABARTI: Hang on for a second. You mentioned your book, which again is The Rise and Fall of Fast Track Trade Authority. I’d love to actually hear one of those six ways that Congress has legally delegated some tariff levying authority to the president.

And obviously we’re going to spend the rest of the hour talking about the argument over IEEPA, but it’d be really helpful to know, again, from a legal standpoint, when this has been done. How has it been done and how has it worked?

WALLACH: In a way, even more important than those historic instances, I would say it’s worth thinking about one of the arguments the administration is making now. Which is he, President Trump says he needs this totally unbounded, IEEPA authority for the sake of national security.

Yet there is a statute that is in the Trade Act of 1962, Section 232, under which presidents have been delegated by Congress for decades authority to use tariffs in the instance of some national security threat and the difference between that and IEEPA is, there’s more process, there’s more oversight, and there’s some parameters.

So for instance, in order to do a Section 232 tariff, the executive branch, a president, as a delegated authority, has to have a process of doing an investigation and proving the actual threat at hand, and then coming up with a tariff that is justified by that threat, not a lightning bolt, a useful tariff tool.

Part II

CHAKRABARTI: Lori, if you don’t mind, I would, I’d like to just nerd out a little bit more on the history here, because whenever we talk about the Trump administration or President Trump, as each year has gone by, I’ve found it much more instructive to understand the implications of, let’s say, a Trump related court case, if we understand how far the president’s actions have deviated from what has historically been considered political or even legal norms.

So with that in mind, it’s so fascinating. I was just looking at Congress’s own website, Congress.gov, and if you just do a simple search for tariffs, the first hit you get is a very well written website, all about U.S. tariff policy. And it says exactly what you said here, that over about roughly 70 or 80 years, Congress has increasingly delegated some tariff levying authority to the president.

But it emphasizes through and through that it’s Congress that sets the goals for the tariffs, but has given some, in some cases, the president, the ability to negotiate those goals. And in fact, the congressional website says this is one of the things that has helped create a stable rules-based world order when it comes to international trade.

Your thoughts about that.

WALLACH: It’s spot on and you’ve found your right partner in trade nerdhood here, because the history of it is fascinating. And the book that I wrote talks about fast track. That was the most recent delegation that was a much larger one than the previous, Congress used to very zealously guard this authority because they recognize the might of it. A president without using tariff authority, exercising this massive power without care, or based on corruption or whim or pettiness or political just judgments that could be questioned, could destabilize the U.S. and global economy and undermine the national interest.

So Congress used to really hold onto this authority in these statutes that exist now where there are legitimate delegations, including all of the trade enforcement laws, dumping subsidies. There are parameters. There are checks and balances that are still remaining, and that’s why this court case is so important with respect to this particular statute, right?

Because what the president is seeking is an entirely unleashed control. So it’s not just going back to King George and having the ability as king to announce tariff authority. But the way that President Trump has used the tariffs shows really that’s much more like a Zeus-like, God-like lightning bolt operation, in that he’s not even using it for normal economic reasons.

So he ran saying that he was going to use tariffs to rebalance trade, rebuild American manufacturing and boost U.S. industrial jobs. Those are all really important goals, which I actually share. I am not a tariff phobic person, and I would contest some of even how you described who pays.

Because with this round of tariffs, actually, a lot of the foreign companies who are trying to sell us stuff are paying for all or some of the costs, because we have such a lucrative market. That’s the upside of having a $1 trillion horrible, consistent trade deficit, is everyone needs to sell us stuff, so they’ll negotiate on the tariffs.

But putting that aside, tariffs can be a legit tool. The question is used, how and for what purposes. And so you mentioned the 50% tariffs in Brazil. What’s that about? We have a trade surplus with Brazil. We sell them more stuff. They’re not part of our trade deficit problem that ostensibly President Trump’s trying to fix.

Why do they have some of the highest tariffs in the world? Because President Trump has unilateral authority, he thinks, to try and torment the current government. Because he’s upset that they’re trying to hold accountable the previous right-wing president who was part of a coup and had planned to kill most of the Congress and become a dictator in Brazil, and they’re running a process there where they’ve sent him to court.

He’s been tried, he was prosecuted for this coup as were a bunch of other people involved in it, and they’re all going to jail. President Trump liked that guy. He’s using tariffs to punish a country unrelated to our national interest in trade balance or manufacturing. That kind of whimsical use is precisely the kind of abuse or the corrupt abuses of tariff policy to leverage countries to make deals, to help Trump hotels or Starlink or big tech.

A lot of the leverages to help big tech undermine domestic regulation of big U.S. monopolists as compared to creating jobs at home. Those are the abuses the founders had in mind.

A lot of the leverages to help big tech undermine domestic regulation of big U.S. monopolists as compared to creating jobs at home.

Lori Wallach

When they said Congress, not the president should have this authority.

CHAKRABARTI: That the founders have in mind. You’re creeping into originalist thinking here, Lori Wallach.

Like I wouldn’t have pegged you as a textualist.

WALLACH: Yes. What’s funny is I actually think the weakest argument, the strongest argument for saying the president doesn’t have these IEEPA authorities. And the weakest argument for the president is improbably actually a doctrine called Nondelegation doctrine, which used to be used to try and undermine the FDR era presidential powers that created the whole New Deal infrastructure and has not been used since.

But it basically says, if a delegation by Congress does such violence to some fundamental constitutional provision, check or balance, that it eviscerates it. Even if Congress has given a delegation of that authority, it’s still not constitutional. And in this instance, there’s a lot of controversy about whether IEEPA actually authorizes tariffs at all or not.

There are arguments on both sides, and we can go into them, but what clearly is the case is that if a president can use this unbounded authority the way Trump has demonstrated he does and will, then that cannot be constitutional. Given the checks and balances in the Constitution.

CHAKRABARTI: Okay. So I’m about to go through a thought exercise with you, Lori, and you can tell me if it’s just too crazy and too disconnected from reality or not. But I like to push the bounds here. So with IEEPA, the International Emergency Economic Powers Act, which is 19, what, 74 ish?

WALLACH: Yep.

CHAKRABARTI: The act basically says, and I’m paraphrasing here, that the president has the authority to regulate international commerce.

It doesn’t specifically say tariffs, but commerce in response to a declared national emergency. And the president is authorized to investigate, control transactions, freeze assets of, freeze foreign assets, impose sanctions, things like that, on countries or individuals. And here’s some key language, that, quote, pose an unusual or extraordinary threat to national security, foreign policy, or the U.S. economy.

Okay. So this is a trade and economic based act to protect the United States. But this, the phrase national security threat is the slippery eel here, because I’m thinking about this because we just had the news that former Vice President Dick Cheney died. National security threats vaguely defined.

The U.S. has used to start illegal wars in Iraq. In a sense, we have already laid down the groundwork for presidents to use a vague national security threat to assume extraordinary powers, not necessarily conferred to him by either the Constitution or subsequent acts passed by Congress. So why not a IEEPA?

WALLACH: So what the court is going to do on this is a mystery, and there are two different ways they can go at it. They can look at the statute and contest or question whether there is a legitimate emergency. And/or whether the language, because you didn’t read this exact piece of it, but there’s an exact quote, which is it’s an authorization for the president to regulate imports and exports effectively.

That is specifically mentioned. The word tariff isn’t. But the notion you can cut off all trade, because you can have an embargo under the statute. This is the statute Biden used, for instance, to embargo trade with Russia after the Ukraine invasion, does it also then let you use tariffs? Which is a way you can regulate imports.

It’s really the only way you can effectively regulate imports. That’s the textual question. And they could go there. And then it’s a question of, is there an emergency? And is there tariff authority? Alternatively, the court could look at some of these bigger doctrines, which is, even if there is tariff authority, and this might be an emergency, then can you have this kind of a delegation, and can it still be constitutional?

And the question of how they’re going to go, we’re going to get the first hints tomorrow. And for nerds on trade and people who generally care about accountable governance, you can listen. The Supreme Court website has a live feed audio, so you can get a hint by what questions the justices are going to ask the parties litigating the case to see where different justices thinking is going.

CHAKRABARTI: I’ve also in shows past, I’ve heard legal experts say that the oral argument is useful, but only to a certain extent, because it might indicate where the justice is thinking or going, or they just might be arguing for the sake of argument. But their thinking is much more strongly shaped by, say, all the briefs that are sent to them, or … basically their legal philosophy on, in this case, presidential power.

So Lori, hang on here for just a second because this is a perfect opportunity and thank you for setting it up for us to talk about specifically the cases that are being argued at the court tomorrow. One of the plaintiffs in one of the cases is a company called Learning Resources.

It’s a small family owned business in Illinois that makes educational toys, and here’s CEO Rick Woldenberg in an interview with CNBC.

RICK WOLDERNBERG: When they were at 20%, he had promised 60%. We figured maybe he would land at 40%, but when it went from 20% to 145%. It just went completely off the rails. It’s two and a half times what he said was the maximum and it’s way into the stratosphere that no business could possibly handle.

We basically stopped importing at that point, which is obviously catastrophic. The business is built on flow.

CHAKRABARTI: And in another case, but also within the tariff umbrella that will be heard by the court. One of the plaintiffs is a New York based wine importer called VOS Selections. Here’s owner of Victor Owen Schwartz in an interview on MSNBC.

VICTOR OWEN SCHWARTZ: You increase someone’s taxes five times; it’s going to have an impact. I was just looking, our second quarters since the strangulation date tariffs hit, our profit went down like 60%.

REPORTER: Six zero?

SCHWARTZ: 60%. Where’s that money going? It’s going to, it’s going to the federal government. It’s a tax. So it’s like all of us small businesses, we have this terrible anvil on our head, and you start calculating what’s that gonna cost us through the end of the year. Now that we have, supposedly the set tariffs, 15% from Europe, 30% from South Africa, it’s a challenge of cash flow that’s, it’s hard to measure.

CHAKRABARTI: Alright, let’s bring in Mark Joseph Stern. Now he’s senior writer at Slate. He covers the courts and the law. He’s also co-host of the Amicus Podcast. Obviously, it’s a show about the Supreme Court. Mark Joseph Stern. Welcome back to On Point.

MARK JOSEPH STERN: Thanks so much for having me back.

CHAKRABARTI: Okay, so Mark, help us understand here, like in recent court cases that had to do with President Trump, and the overall question of executive power is, has there been a pattern to how the court has ruled?

STERN: Absolutely. The court has very consistently ruled in favor of Trump’s broad claims of executive power in a series of decisions over the shadow docket. Cases without oral argument or full briefing. The Supreme Court’s conservative super majority has consistently said that Trump is able to do almost everything he wants to do, including consolidating a lot of authority in the executive branch that has traditionally belonged to Congress, including power of operations and spending, as well as firing and replacing various federal officials at independent agencies like the Federal Trade Commission.

The Supreme Court’s conservative super majority has consistently said that Trump is able to do almost everything he wants to do.

Mark Joseph Stern

So this is the court that over the last 10 months has generally been pretty favorable toward Trump’s claims of executive power. And the big question is whether that will all come screeching to a halt now that the question is tariffs, rather than a matter that the conservative legal movement has generally agreed upon in the past.

CHAKRABARTI: Oh, interesting. Okay. Now, can you just briefly summarize to us how this case landed before the Supreme Court? Because it had to make its way through the lower courts. What were those ruling lower court rulings like?

STERN: So all of the lower courts ruled against the Trump administration, and in favor of the small businesses we just heard from.

All of the lower courts ruled against the Trump administration, and in favor of the small businesses.

Mark Joseph Stern

And the courts generally found this was not a particularly close call. They used different tools of interpretation that we can talk about. When you’re interpreting a statute that’s very broad, like IEEPA, it can be a little tricky to figure out exactly what Congress intended and where Congress went to draw the line.

But the lower courts overwhelmingly said, look, this crosses the line, wherever it is, it’s pretty clear to us that Congress did not intend to give the president unbounded authority to issue any tariffs he wants for as long as he wants, based on his own sort of whimsical sense of what constitutes a crisis.

CHAKRABARTI: Okay, Mark Joseph, hang on here for a second. Lori Wallach, this is where I’d love for both of you to actually help us clarify some terms here. Because you’ve both said that a ruling in favor of the president from the high court could essentially give him unbounded authority, but that would only be one potential ruling.

Is there, I think you had mentioned before, there’s another path that the court could follow that would maybe limit the impact to just tariffs or did I mishear you?

WALLACH: There is a lot, there are a lot of moving pieces, is how I would put this. So the kind of decisions that could come down, for instance, if they’re focusing on what is or isn’t an emergency, you could have the recent action in the Senate being taken by the court. It’ll certainly come up in oral arguments.

The Senate has under a related statute, IEEPA works where basically a president has to declare an emergency under another statute called the National Emergencies Act. And the National Emergencies Act has an emergency break where Congress has a privileged vote to try and say, no, it’s not an emergency, Mr. President. It basically was an added check and balance on whatever authorities of IEEPA, including the tariff authorities that may or may not exist.

And the Senate has now voted that the across-the-board tariffs don’t have a justified emergency. The Canada tariffs don’t have a justified emergency.

Those are supposed to be based on fentanyl crisis issues. Which is a real crisis. But Mexico, Canada and China are fentanyl tariffs. The rest of the world is under a broad economic emergency of imbalance. And then specifically the Senate has said, no, Brazil is not an emergency that qualifies for this use.

So the court could say it’s not an emergency. In these instances, we’ll allow China and Mexico tariffs to allow, we’re going to say the statute does allow tariffs. We’ll allow Mexico and China to have an emergency set of tariffs. Everyone else, nope. Your tariffs end. And then they’d have to use a different authority to come back and try and put those tariffs in place.

Which by the way, key … giveaway. I don’t think the tariff situation’s going to change a lot. The power situation could.

Part III

CHAKRABARTI: Let me ask you a couple more questions about court nitty gritty details. Okay? You had mentioned the shadow docket before. Now to clarify, as you said, that’s the docket where the court just issues a decision. Sometimes it can be as short as a page. They don’t, they almost never clarify why they issued a decision, and I don’t think there’s even any oral argument heard on shadow docket cases. Now there have been a lot of Trump related cases that have been decided this way through the shadow docket.

Is this the first one, the tariffs case? That’s actually going to be decided like in open court or heard in open court with public oral argument.

STERN: No, it won’t be. Because last term, the court did this with the birthright citizenship cases. The court moved those from the shadow docket to the rocket docket.

It heard oral arguments. It invited full briefing. But then of course, the court ended up ruling on a kind of procedural question about the propriety of universal injunctions that covered the entire nation and rolled those back rather than getting to the merits of the case. So you could say that this will be the first time that the court has directed the parties to brief and given itself the opportunity to decide a major merits question about the scope of the president’s power.

CHAKRABARTI: Okay. Got it. Now, the scope of the president’s power, this court in a very similar sort of formation, in terms of the balance of political views, has taken up the issue of presidential power in other administrations, right?

Just in the Biden administration when Biden tried to cancel all student debt or stop evictions during the COVID pandemic. And then of course, there was a famous case about President Obama’s clean air initiatives, right? Greenhouse gas initiatives. I believe in all of those cases, the court ruled that the president was overreaching, that he did not have unilateral power to enact these sweeping policies, correct?

STERN: Yeah, that’s right. And in those cases, the court invokes [a principle] that’s very similar to the Nondelegation doctrine that Lori mentioned earlier. It’s called the Major Questions doctrine. And the basic idea here is that when Congress wants to delegate decisions of vast economic and political significance, that it needs to do so really clearly.

The executive branch can’t just seize upon a kind of vague or broadly worded statute as the basis for some novel initiative. Generally, the courts are going to look to Congress as explicitly as possible, that the president can undertake this policy. And that was the basis, again, for the court striking down, as you said, student loan forgiveness.

Climate regulations, the evictions moratorium during COVID, all that stuff fell, because the court ruled that Congress didn’t authorize it clearly enough. And that is primary argument that the plaintiffs have raised in this case, that under the major questions doctrine, Congress just didn’t say clearly that the president could slap these tariffs on any country any time.

CHAKRABARTI: Okay. So following up on that Mark and Lori, I promise I’ll come back to you here. But in the cases of the Biden and Obama policies, if memory serves, it was that typical conservative-liberal justice split, right? And then those cases, the liberal justices said, no, we actually believe the president has such power.

Does that mean that we have the likelihood of this tariffs case being, I’m trying to hold back my skepticism here, Mark. But being one of the most, just nakedly political decisions the court’s going to make in a while? Because we have an example in equally high-profile cases of what is essentially a conservative liberal split.

We could see the justices vote, or decide in the exact opposite way, right? The conservatives might say, no, the president has the power. The liberals might say, no, he does not. Then that kind of just throws the idea of a fair, legal examination of the facts of a case kind of out the window.

STERN: I certainly agree. I think there’s issue for both sides of the court here. I will say that I personally think that this is an easier case than the ones I just mentioned. As Lori said, there are other statutes on the books that do explicitly authorize tariffs to protect national security, to address trade imbalances.

But Trump has not invoked those statutes, because they are too narrow to accomplish what he wants to do. He has instead turned to this other oddly worded emergency statute because he thinks that it writes him a blank check. I think it would be consistent for the liberal justices to say, look, in the past, we thought that the statutes were clear enough, but here it seems just blindingly obvious that the president has circumvented the procedure that Congress laid out, because it didn’t give him enough authority.

Now, on the other side of the court, there’s this big question about whether the major questions doctrine applies when there is a matter of foreign policy or national security. And student loan forgiveness, climate regulations, that’s bread-and-butter domestic policy.

And so the Supreme Court said this is just a matter of, you know, what Congress wants. It’s simple. It didn’t want this, but here we’ve got the president saying over and over again, national security, foreign affair. And this Supreme Court has ruled that the president’s powers are at their zenith when he is trying to protect national security or dealing with foreign affairs.

And just last term, Justice Brett Kavanaugh indicated that he doesn’t think the major questions doctrine applies in the realm of national security and foreign affairs. So it’s possible that the conservative justices, or at least some of them, could flip and after striking down many Biden policies under the major questions doctrine, say, oh, it doesn’t apply to Trump here, because this is all about foreign powers and we’re not going to micromanage his efforts to protect the country on this front.

CHAKRABARTI: This would be legally consistent if the court had also issued rulings that restrained President Trump on the domestic front, but it has not.

STERN: That’s exactly right. I think that one searches in vain for consistency in this realm. Because frankly, the Major questions doctrine is a very freewheeling idea that allows for judges to own subjective sense of what counts as a big question. Student loan forgiveness was $400 billion. That’s a lot of money, but Congress regularly passes multi-billion, multi-trillion-dollar bills.

Now what counts as a major question is in the eye of the beholder. And a lot of us court watchers get nervous about that, because as soon as subjectivity creeps in here to the judicial analysis, it gives the justices an opportunity to substitute true textual interpretation with their own policy views.

CHAKRABARTI: And also we’ve increasingly been hearing the phrase that previous cases were simply wrongly decided. That might be one of, I’m gonna make a t-shirt that says, wrongly decided. Lori Wallach, let me turn back to you. And because this sort of the patterns of the court recently are really important to understand.

I’d love now for both of you to tell me in more detail. Because I think a lot of people listening to this are like, this has to do with tariffs. Why are they jumping to, it would be equivalent to a massive sort of taking off of the shackles of presidential power. The connection perhaps is not so clear.

So why do you think that a ruling on tariffs would be an historic expansion of presidential power?

WALLACH: Counterintuitively, a ruling that IEEPA is not allowed, isn’t going to make that much of a difference. Because as Mark Joseph Stern just said, there are other statutes and immediately Section 122 of the Trade Act of 1974 allows a president to do 15% tariffs on the whole world for up to five months.

Then there is the national security tariff I talked about, that requires an investigation, you could do in those five months. So if they say the tariffs are not allowed under IEEPA, it’s not gonna be an enormous change. The reason why it’s gonna be a sea change, if they say it is allowed, is because this particular authority as used by President Trump is far beyond a tariff question, for instance.

Right now, if you think about it, why does why does the president want this IEEPA blank check as compared to using all these other statutes that could do the same thing? Because IEEPA allows him on a whim to threaten a country, tariffs on you. If you dare to break up big tech monopolies, because I like those companies.

They paid for my inauguration. You bust monopoly abuses. I tariff you. Tariff on you if you require big pharma to charge affordable prices. Tariff on you if I don’t like your socks, Justin Trudeau. I swear the original Canada tariffs; there’s not a big fentanyl problem with Canada. It seemed to be a grudge about Canada and Justin Trudeau. Or last week literally threatening 10% more tariffs.

Because President Trump didn’t like a television ad that a particular Canadian province’s premier had put up on the World Series. That kind of —

CHAKRABARTI: Wait, I had missed that really. I’ll be frank, I missed that —

WALLACH: Really. So yeah, Premier Ford put up an ad that used a Ronald Reagan audio clip saying that tariffs were a bad idea, and Trump was in such a rage, he threatened 10% additional tariffs on Canada. That kind of, I don’t even know what the right adjective is. Whimsical seems too gentle. Use of petty, personal, not thinking of the national interest, use of tariffs. Not only doesn’t do what Trump promised. Which we do need to do, rebalance trade, rebuild our manufacturing resilience.

That’s a matter of not just national security, but climate crisis resilience. We need to be able to make more things. That’s a good thing to do. His use of tariffs have nothing to do with any of this. So the reason why the power grab is so enormous is what tariffs can do goes well beyond actual economic questions.

To just being a lightning bolt threat, of if you don’t do what I say, by the way, also U.S. company. Sector of the economy, other country. I chuck a tariff at your head.

CHAKRABARTI: Mark Joseph Stern. We have talked in detail about the reasoning why IEEPA is maybe not a statue that confers that kind of power for the president.

Can you summarize to us what argument the administration is making, that they say it does?

STERN: So the administration is making, I would say, more of a rhetorical argument than a legal argument, frankly. The legal argument is that the statute mentions importations. It says that the president can regulate foreign importations and that tariffs are a kind of regulation now.

The administration is making, I would say, more of a rhetorical argument than a legal argument.

Mark Joseph Stern

In fact, no previous president has ever interpreted this. No previous administration has ever used IEEPA to impose tariffs. And in fact, the way that Congress seemed to envision it was more about sanctions and embargoes and the kind of thing that past presidents have used it for.

But the administration says, look, the courts need to defer to the president on what counts as an emergency, that justifies the statute and it’s not for unelected judges in their ivory tower to tell the presidents that fentanyl and trade imbalances are not an emergency. This president was elected after a campaign in which he said quite clearly fentanyl and trade imbalances, that’s a concern for me. I’m gonna address it on day one.

And so from the Justice Department, and this is quite unusual by the way, this is a feature of Trump’s Justice Department that we haven’t seen in the past, is really a political argument that’s thinly veiled in legalese. It’s the idea that courts had better let Trump do what he wants to do, because he thinks that these are emergencies that are killing the country.

And if courts stop him, then they’re going to be responsible for all of the ruin that follows. It’s a really odd way for the Justice Department to present an argument to the Supreme Court. Again, unusual, and I’m not sure that the justices are going to respond very well to it. Because they expect reasoned legal analysis from the government’s lawyers.

They don’t really like it when the government’s lawyers just take a Trump campaign speech and reword it to include a little bit of Latin.

CHAKRABARTI: Lori, but this explains, Mark just said something that explains a lot about why maybe the administration is looking to IEEPA as its vehicle to expand presidential power.

Because didn’t you say earlier in the show that other statutes that had given the president some like more power to levy tariffs, in the event of claiming a national security emergency, that at least one of those statutes required the president or the administration to actually present evidence to Congress that justified the National Security Declaration.

WALLACH: So Section 232 and all these trade statutes get just called by their Section number. So it’s shorthand. Section 232 requires an investigation be conducted to make the case. It doesn’t give Congress a veto, by the way. Over what is or isn’t a national security threat, but you have to actually make a case.

And it’s been used in expansive ways. That statute is the statute to under which, for instance, Trump and Biden have done steel and aluminum tariffs, auto sector tariffs, et cetera, microchip tariffs, et cetera. Now the thing that is, you know, just going back to what Mark was saying, that the thing that’s tricky is there is this language about regulate importation.

You asked what the argument is of the administration. And what they’re saying is that language when it was used in a previous statute called the Trading with the Enemies Act. Which was used by President Nixon to justify his across-the-board tariffs in the ’70s, which were 10% and lasted about six months for a big balance of payments crisis, it was a period where we were going off the gold standard.

That case, which is called Yoshida … by the Supreme Court, basically post facto, because Nixon had already ended the tariff, said regulate importation allows tariffs.

And so the thing that’s tricky is that exact language, regulate importation, was imported into IEEPA and is also there. So what the administration is arguing is, Hey, if it was good for Nixon, why isn’t it good for us? And there are a lot of good arguments of why it’s not a proper parallel if you want to get into the statutory interpretation, but that is the legal argument.

That is their strongest argument. Otherwise, it’s a lot of histrionics in their brief.

CHAKRABARTI: Got it. Got it. Unfortunately, we only have a minute left. And Mark, I want to give the last question to you. Because this court has oftentimes said, and of course, conservative legal scholars have said, we don’t want to look to the courts to legislate from the bench, don’t ask the courts to do the work of Congress.

But there’s a very big difference between that and issuing decisions that affirmatively expand presidential power. And is it fair to say that this current court, instead of being more hands off and letting the fight take place between the executive and the legislative branches, is actually being quite active in terms of presidential power?

STERN: Yeah, I completely agree with that. I think that what the court has been doing is transferring more and more authority from Congress to the executive branch to the president. Previously authority over appropriations, authority over independent agencies. And here it could be authority over taxation.

The power to tax is the power to destroy. So if the Supreme Court won’t draw a line at letting the president impose what are actively unilateral taxes, it’s really hard to see when the Supreme Court will tell Trump, no, you cannot do this.

The first draft of this transcript was created by Descript, an AI transcription tool. An On Point producer then thoroughly reviewed, corrected, and reformatted the transcript before publication. The use of this AI tool creates the capacity to provide these transcripts.