Ted Cruz and Ben Fergusons break down the Supreme Court decision on President Trump's proposed tariffs on steel and aluminum. They discuss the legal issues at issue, the arguments, and a prediction on what the court is likely to rule on.
00:09:08.200That the Supreme Court is going to uphold it by a vote of five to four, that it is going to be close.
00:09:14.860And I'm going to break it down in a moment, but what I will say, if this case had been decided a year ago, if it had been decided at the outset of the president's term, I think the court would have ruled that Trump cannot impose these tariffs if it were addressing the legal issue in the abstract.
00:09:36.940Here's why I believe the court is going to allow the tariffs to stay in place.
00:09:42.360And it's a basic principle of reliance.
00:09:45.040We've had $133 billion in tariffs imposed already and collected.
00:09:50.900It has been central to President Trump's foreign policy.
00:09:56.020And the court institutionally is very reluctant to do something that dramatically upsets the status quo.
00:10:04.300So a year ago, I think the court probably would have ruled differently.
00:10:09.580But I think today you're going to get five justices to say we're too far down the road.
00:10:17.320And this is too core to how this president is implementing foreign policy, because foreign policy under the Constitution is given principally to the president.
00:10:27.260So that's my prediction is five for the court is going to uphold President Trump's tariff authority.
00:10:34.300So what does this also do for the future?
00:10:36.760And does this protect, in essence, the presidency if it is a 5-4 ruling that that look, we're going to lose an election again, I think, in based on history where Democrats in the White House.
00:10:48.360But what I don't want to see is every time someone's there, we're playing these games.
00:10:53.680Like, I want the president, if he's chosen by the people, and the majority of the people decide Bill Clinton's the president of the United States of America, that he can do his job because that's who the people chose.
00:11:05.480I don't like presidents when they're being harassed while trying to do their job.
00:11:08.600Look, for the foreseeable future, every president that comes into power, you're going to have lawsuits challenging what they're doing.
00:11:15.140That's just the reality of a divided country.
00:20:59.440Chief Justice Roberts repeatedly tried to reframe the case away from foreign affairs and towards taxation of Americans.
00:21:08.340So, for example, Chief Justice Roberts asked, he said, tariffs and dealings with foreign powers, yes.
00:21:15.840But the vehicle is the imposition of taxes on Americans.
00:21:18.660And that has always been the core power of Congress.
00:21:23.420And John Sauer tried to press back on behalf of the Trump administration.
00:21:27.020And Roberts responded, well, who pays the tariff?
00:21:32.480If a tariff is imposed on automobiles, who pays them?
00:21:36.620And the answer, as I said before, is consumers pay some of them and the foreign producer pays some of them.
00:21:42.660Roberts went on and he highlighted the structural collision between the executive foreign affairs power and Congress's taxing authority.
00:21:51.960Roberts said, quote, to have the president's foreign affairs power, Trump, that basic power of Congress, seems to me at least to neutralize between the two powers, the executive power and the legislative power.
00:22:08.220And then he said, yes, of course, tariffs and dealings with foreign powers.
00:22:12.560But the vehicle is the imposition of taxes on Americans.
00:22:16.660Justice Kagan, so Justice Kagan is the smartest of the liberal justices on the court, by far.
00:24:04.640But she's trying in a very savvy way to argue it in a way that will appeal to Justice Gorsuch, Chief Justice Roberts, or Justice Barrett.
00:24:15.320She's trying to frame it in terms of conservative principles.
00:24:18.380Now, Justice Gorsuch, if you look at his questions, his questions showed a significant degree of skepticism to the administration's position,
00:24:30.280and in particular focusing on the major questions doctrine.
00:24:33.200Again, the major questions doctrine is a big conservative principle that limits the power of the executive branch.
00:24:42.400So Gorsuch asked, what is the limiting principle here?
00:24:45.780And he asked further, if regulate importation includes tariffs, what stops the president from imposing them for any asserted foreign threat?
00:26:01.420So, on the conservative side, the justice that seemed most receptive was Brett Kavanaugh.
00:26:08.320And Brett Kavanaugh said, the court has historically been very comfortable with very broad delegations in the foreign affairs context.
00:26:16.540So, he framed it in terms of, look, the president has enormous flexibility when it comes to foreign affairs.
00:26:22.800Justice Kavanaugh said, in one of his opinions, that the non-delegation concerns have less force where Congress is empowering the president in foreign affairs.
00:26:35.640And Justice Kavanaugh focused on the historical practice, said there's a long tradition of broad delegations over foreign commerce going back to the founding.
00:26:46.000And he engaged the solicitor general seriously.
00:26:50.940He said, that's consistent with cases like Chicago and Southern Airlines and Curtis Wright.
00:26:55.580I think Kavanaugh is going to be a likely vote to uphold the tariff authority.
00:27:02.780And so, that argument was significant.
00:28:06.660What evidence do we have that Congress historically could not confer this kind of authority in matters of foreign commerce?
00:28:17.440Justice Thomas' question suggests he is very likely to vote in favor of the president's tariff authority.
00:28:25.920And then let's focus on Justice Alito.
00:28:27.960Justice Alito was really focused on workability, remedies, and consequences.
00:28:37.700So, he said, he was asking about practicality.
00:28:41.860He said, if we accept your position, what happens to all the tariffs that have already been collected?
00:28:48.380He also highlighted, and I think this is critical, this may be the most important question asked.
00:28:55.620There are enormous reliance interests here, both for the government and for private actors who have ordered their affairs around these tariffs.
00:29:17.420And he pressed whether the case could be resolved narrowly.
00:29:20.300He said, why isn't this something that can be handled through a limiting construction, rather than a broad holding that calls into question a lot of past practice?
00:29:30.060I actually think Justice Alito's questioning is going to frame what the court does.
00:29:36.460Now, we have, in a lot of big cases, a 6-3 divide.
00:29:41.780You have the three liberals who vote against Trump on everything.
00:29:44.920And you have six justices that are on the conservative side of the aisle, although they vary.
00:29:51.720I'm going to predict we're going to lose one.
00:29:53.620I don't know which, but I think we will lose, in all likelihood, either Gorsuch or Barrett.
00:30:00.220But even though Chief Justice Roberts was skeptical at oral argument, I'm going to predict that Chief Justice Roberts votes to uphold the tariffs, and I'm going to predict that he writes the majority opinion.
00:30:26.700I did spend my entire career, before I was in the Senate, was arguing before the court.
00:30:31.620And look, Roberts, in particular, is an institutionalist.
00:30:36.280And I actually think this case is quite similar to the Obamacare case.
00:30:41.840The Obamacare case, during the Obama presidency, was a challenge to Obamacare, and ultimately, Chief Justice Roberts upheld Obamacare.
00:30:51.460And I think he did so, because he thought to strike it down would be a massive change, would wreak chaos, and it would question the legitimacy of the court.
00:31:03.540It would question the authority of the court.
00:31:05.280So I think he made an institutionalist decision.
00:31:10.360I think that same instinct here is going to lead him to say, these tariffs have been imposed, they've been the heart of the president's foreign policy and economic policy, and so we're not going to set them aside.
00:31:26.000That is my prediction, and you will end up with a majority that consists of Chief Justice Roberts writing the majority opinion, Thomas, and Alito, and Kavanaugh, and either Barrett or Gorsuch.
00:31:41.380And the dissenters will be the three liberals, and either Barrett or Gorsuch.
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00:32:51.560All right, final question for you, and that is the politics of this.
00:32:56.240If it comes out the way that you just predicted, how big of a victory is this specifically for Donald Trump?
00:33:04.380And how important is it moving forward for the next three years of his presidency?
00:33:08.480And the second question is, how big of a defeat is this for the left, who immediately went after Donald Trump for the tariffs and said doom and gloom and said this was going to be overturned?
00:33:19.680Look, if the Trump administration wins, it's a big deal.
00:33:23.100This is the central part of his foreign policy and trade policy.
00:33:28.000By the way, we've also talked about how he's used tariffs in other circumstances.
00:33:31.200For example, we've done a deep dive previously on using tariffs to force Mexico to provide water to South Texas.
00:33:39.620That's something I've urged him to do.
00:33:43.340And Mexico, during the entire Biden administration, Mexico had been violating the 1944 water treaty with the United States and had stolen over a million acre feet of water from South Texas.
00:33:54.180The Biden administration would do nothing to force Mexico to comply with the treaty.
00:33:59.280President Trump, at my urging, threatened tariffs against Mexico and Mexico immediately complied.
00:34:51.840Number one, Section 301 of the Trade Act of 1974, which authorizes tariffs to enforce U.S. rights under trade agreements or to counter unfair foreign practices.
00:35:03.320The second way the president could try to impose these tariffs again is under Section 232 of the Trade Expansion Act of 1962,
00:35:11.860which allows tariffs on imports threatening national security, which was the vehicle Trump used for steel and aluminum tariffs.
00:35:21.740And the third is under Section 201 of the Trade Act of 1974, which permits temporary, quote,
00:35:29.840safeguard tariffs to protect domestic industries from serious injury caused by import surges.
00:35:36.780So there are three other statutory bases that the president could go to.
00:35:41.240And if the Supreme Court rules against him, I think the president will go to use those.
00:35:45.660So you could end up at the same result.
00:35:48.080But at the end of the day, I'm going back to my prediction.
00:35:51.080Five for the Trump administration prevails.