Verdict with Ted Cruz - February 11, 2026


Detailed Prediction： Trump's Tariffs before the Supreme Court-What's Going to Happen

Topics
Trump tariffs Supreme Court case free trade
Hosted by
Ted Cruz
Mentioned
Donald Trump Roberts Neil Kachal Kagan Barrett Thomas George W. Bush Al Gore Alito Brett Kavanaugh John Sauer Lucy Rough Greens Obama Biden Jennifer Stewart Caitlin Clark Stephen Breyer Peter Navarro Chris Wright and 7 more
BONUS POD： Media Tried Linking Trump to Epstein — a Phone Call in 2006 Just Blew That Up Bonus： Daily Review with Clay and Buck - Feb 12 2026

Episode Stats


Length

36 minutes

Words per minute

156.97

Word count

5,746

Sentence count

437

Harmful content

Misogyny

4

sentences flagged

Toxicity

8

sentences flagged

Hate speech

3

sentences flagged


Summary

Summaries generated with gmurro/bart-large-finetuned-filtered-spotify-podcast-summ .

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.

Transcript

Transcript generated with Whisper (turbo).
Misogyny classifications generated with MilaNLProc/bert-base-uncased-ear-misogyny .
Toxicity classifications generated with s-nlp/roberta_toxicity_classifier .
Hate speech classifications generated with facebook/roberta-hate-speech-dynabench-r4-target .
Topics generated with Qwen2.5-3B-Instruct.
Hosts, guests, and mentioned names generated with spaCy (en_core_web_sm), reconciled against Wikidata.
00:00:00.000 This is an iHeart Podcast.
00:00:02.660 Guaranteed human.
00:00:04.520 Welcome.
00:00:05.160 It is Vertic with Senator Ted Cruz, Ben Ferguson with you.
00:00:08.160 Senator, it's nice to be with you.
00:00:09.860 If you're watching this on video, I'm in Nash Vegas right now.
00:00:13.280 Not Las Vegas, Nashville.
00:00:15.000 You're in Washington, D.C., and we've got a lot to talk about.
00:00:18.260 It deals with the Supreme Court.
00:00:20.180 Well, that's right.
00:00:20.860 We're expecting any day now the Supreme Court decision on President Trump's tariffs,
00:00:25.320 his imposition of tariffs.
00:00:26.460 They've been a major element of his foreign policy, a major element of his economic policy.
00:00:30.960 We're going to do a deep-dive breakdown of the Supreme Court case, what is likely to happen,
00:00:36.340 what we know about what was argued, and what the outcome is likely to be.
00:00:40.760 We're going to give you that as well.
00:00:42.740 Yeah, definitely.
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00:02:31.940 All right, so Senator, tariffs have been something that the president, like many other presidents,
00:02:37.900 have used.
00:02:38.860 The president used them in a very big way when he got reelected, and he made it clear when
00:02:43.200 he was campaigning he was going to use tariffs for leverage.
00:02:45.820 He was going to get better deals.
00:02:47.040 He thought America was being taken advantage of, and he has been very successful in many
00:02:52.060 of these tariffs.
00:02:52.980 But now tariffs have made its way to the Supreme Court.
00:02:56.800 Explain, first of all, just to remind people, how did we get to where we are now?
00:03:01.040 Who was challenging it, and what are they actually looking at ruling on?
00:03:05.720 Well, the case is a case called Trump v. VOS Selections.
00:03:10.000 It was argued on November 5th of 2025, and we're expecting a decision relatively soon.
00:03:17.040 It could be this week, it could be the next month, but it's expected to be soon.
00:03:21.800 And it is a challenge for a number of small businesses who are challenging the imposition
00:03:26.340 of tariffs that Trump has put in place.
00:03:28.120 This is, I believe, going to be a close case.
00:03:31.220 I'm going to break down the arguments.
00:03:32.620 I'm going to give you the legal issues that are at issue, and then I'm going to make a
00:03:36.720 prediction.
00:03:37.180 I'm going to predict what the Supreme Court is going to do.
00:03:40.000 But first of all, let's talk about where we are.
00:03:42.580 So to date, $133 billion have been collected during the Trump administration.
00:03:50.220 This is through February of 2026, and the tariffs have been imposed using a statute called IEPA,
00:04:00.740 which is the International Emergency Economic Powers Act.
00:04:04.740 Now, what does IEPA say?
00:04:06.520 IEPA says that if the president declares a national emergency with respect to a foreign threat,
00:04:16.480 the president may, quote, regulate importation or exportation of any property in which a foreign
00:04:26.040 country or a national thereof has any interest by any person.
00:04:29.700 central to this case is what that phrase regulate importation means.
00:04:37.040 So the president has declared an emergency.
00:04:39.980 There's no dispute about that.
00:04:41.900 And IEPA says once he does so.
00:04:44.200 And by the way, that's his right.
00:04:45.840 I want to be clear about that so people understand.
00:04:47.560 That's what liberals have said.
00:04:48.460 No, no, he doesn't have a right to do that.
00:04:49.500 The president has a right to do that, correct?
00:04:51.700 So it's not an inherent constitutional right.
00:04:54.100 It's not just like any president can stand up and say there's an emergency.
00:04:58.340 IEPA, which is a statute Congress has passed, has given the president the authority to declare
00:05:03.020 an emergency.
00:05:03.920 And then it is given to him the power once he declares an emergency to regulate importation
00:05:10.740 of any property from a foreign country.
00:05:13.960 That is the entire basis of the Trump tariffs that have been imposed.
00:05:17.700 And the question is, does the power to regulate imports include the power to impose tariffs?
00:05:28.480 Now, on the other side, the constitutional provision says Article I, Section 8.
00:05:34.460 Article I, so the way the Constitution is structured.
00:05:37.700 Article I lays out the powers of Congress.
00:05:41.180 Article II lays out the powers of the president and the executive.
00:05:44.640 And Article III lays out and creates the judiciary.
00:05:49.500 Article I, Section 8 enumerates the powers of Congress.
00:05:53.060 And in particular, it says, as relevant here, the Congress shall have the power to lay and
00:05:59.440 collect taxes, duties, imposts, and excises.
00:06:04.860 And it also says later on in Article I, Section 8, that Congress shall have the power, quote,
00:06:10.560 to regulate commerce with foreign nations.
00:06:13.380 And so tariffs are at the intersection of laying, collecting taxes, duties, imposts, and excises,
00:06:22.360 in other words, taxing, and regulating commerce with foreign nations.
00:06:28.220 Historically, tariffs have been a traditional tool for regulating imports and international trade.
00:06:36.180 On the other hand, tariffs are literally taxes.
00:06:39.360 They're duties.
00:06:40.200 It's the oldest and most classic form of taxation.
00:06:44.880 And so the dispute is whether Congress, when it used the language in IEPA, which is a statute,
00:06:51.540 giving the president the power to regulate imports, whether it clearly and constitutionally delegated
00:06:59.660 tariff authority to the executive.
00:07:02.720 And that raises yet another issue.
00:07:05.320 One of the arguments the plaintiffs are raising here is something called the non-delegation principle.
00:07:11.560 The non-delegation principle says it limits how much Congress can transfer its own lawmaking authority to the executive branch.
00:07:21.120 Congress is a general matter.
00:07:23.300 It can delegate the authority to implement and administer the law.
00:07:27.480 But Congress has to make the key policy choices.
00:07:30.760 And so that is a major argument the plaintiffs are using.
00:07:34.620 A second major argument the plaintiffs are using is something called the major questions doctrine.
00:07:39.860 And the major questions doctrine says it focuses on statutory clarity.
00:07:46.940 And it says when the executive branch claims authority to take an action of vast economic or political significance,
00:07:54.680 courts require a clear and specific authorization from Congress.
00:07:59.280 And so one of the challenges the plaintiffs are making here is this does not meet the major questions doctrine.
00:08:05.460 Those are the two central issues in this case.
00:08:08.500 When there's when people hear this and some of this seems like this is Donald Trump being harassed by the left and by Democrats,
00:08:17.620 he's not getting to do his job.
00:08:20.240 Is that an argument that that is that for many Americans is legitimate?
00:08:24.460 Or is this a grand argument that, hey, we should have this out of the Supreme Court?
00:08:29.860 Or is he just being harassed because he's Donald Trump and he won an election?
00:08:33.120 Democrats don't like that.
00:08:34.120 He's in charge because the American people chose him.
00:08:36.140 Listen, there's no doubt that every decision President Trump is making, every policy he's putting in place results in a lawsuit.
00:08:44.200 And the Democrats, Democrat state attorneys general, left-wing interest groups are suing every step.
00:08:50.220 And much of that is harassment.
00:08:52.280 That being said, this legal issue is real.
00:08:55.460 And I'm going to make a prediction.
00:08:56.940 My prediction right now is the U.S. Supreme Court is going to uphold President Trump's imposition of tariffs.
00:09:05.640 I'm going to further predict.
00:09:07.540 Really?
00:09:08.200 That the Supreme Court is going to uphold it by a vote of five to four, that it is going to be close.
00:09:14.860 And 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.
00:09:36.940 Here's why I believe the court is going to allow the tariffs to stay in place.
00:09:42.360 And it's a basic principle of reliance.
00:09:45.040 We've had $133 billion in tariffs imposed already and collected.
00:09:50.900 It has been central to President Trump's foreign policy.
00:09:56.020 And the court institutionally is very reluctant to do something that dramatically upsets the status quo.
00:10:04.300 So a year ago, I think the court probably would have ruled differently.
00:10:09.580 But I think today you're going to get five justices to say we're too far down the road.
00:10:15.580 Too much has been implemented.
00:10:17.320 And this is too core to how this president is implementing foreign policy, because foreign policy under the Constitution is given principally to the president.
00:10:27.260 So that's my prediction is five for the court is going to uphold President Trump's tariff authority.
00:10:34.300 So what does this also do for the future?
00:10:36.760 And 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.
00:10:48.360 But what I don't want to see is every time someone's there, we're playing these games.
00:10:53.680 Like, 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.
00:11:05.480 I don't like presidents when they're being harassed while trying to do their job.
00:11:08.600 Look, for the foreseeable future, every president that comes into power, you're going to have lawsuits challenging what they're doing.
00:11:15.140 That's just the reality of a divided country.
00:11:18.820 I will say this.
00:11:20.320 One thing where Donald Trump has genuinely changed my mind concerns tariffs and trade policy.
00:11:27.840 Now, listen, I'm a free trader.
00:11:29.020 I still believe in free trade.
00:11:30.440 I think free trade is good for America.
00:11:32.260 I think it generates jobs.
00:11:33.580 I think it generates economic growth.
00:11:35.180 But, and this is a big, big but.
00:11:37.200 All right, let me ask you, for people listening, I want to be clear.
00:11:40.680 Explain free trade.
00:11:41.940 And I do this because people hear words and they don't exactly know what it means.
00:11:45.360 And I get messages afterwards going, I wish you guys would have explained free trade.
00:11:48.700 So when you say you're a free trader, explain the definition of that quickly.
00:11:52.940 So historically, there have been two broad economic views of trade.
00:11:57.980 Free traders and protectionists.
00:11:59.940 Free traders believe that if you expand trade and commerce between the United States and other countries,
00:12:06.960 that America benefits, that our farmers sell more goods, sell more crops, sell more livestock into foreign countries,
00:12:15.760 that our manufacturers sell more products that are manufactured here,
00:12:19.340 that our service providers sell more services,
00:12:21.760 and that the aggregate economic impact is positive for the United States.
00:12:28.720 Protectionists historically believed you enact really high tariffs on imports.
00:12:34.700 You discourage imports.
00:12:36.480 Now, by the way, when you do that, foreign countries enact really high tariffs on imports to their countries.
00:12:43.040 And you end up principally selling goods into your own market.
00:12:46.680 It would mean the United States produces goods, but mostly sells them to America and doesn't sell them to the world.
00:12:53.000 I believe between the two that free trade has produced far better economic growth.
00:12:59.520 Now, I'm going to give you the caveat and where Trump has changed my mind.
00:13:03.400 I think President Trump has demonstrated that the threat of tariffs or the temporary imposition of tariffs
00:13:13.860 is one of, if not the most potent diplomatic and negotiating tool the president has.
00:13:24.140 And what we have seen is the president has used the threat of tariffs to incredible effect, and it has worked.
00:13:31.960 So let's rewind to last year, April 2nd.
00:13:36.060 President Trump announced a whole list of very high tariffs on the world.
00:13:41.660 I've got to say, 10 years ago, Ben, I would not have liked that.
00:13:44.480 I would have been very unhappy with that.
00:13:45.960 I would have said, look, this is going to hurt the people of America,
00:13:49.040 because tariffs are taxes, and they're taxes paid by consumers.
00:13:52.820 Now, the way a tariff operates, and this gets down to economics,
00:13:56.140 if you impose a tariff and the actual good is sold,
00:13:58.920 some of that tariff is paid by the American consumers,
00:14:02.300 and some of the cost of that tariff is paid by the foreign producer.
00:14:07.760 And it depends on the particular market how much is paid by the consumer versus the producer.
00:14:13.240 I was not upset, though, at the April 2nd tariffs, and here's why.
00:14:18.680 We've talked about this before on the podcast.
00:14:20.940 There is a battle within the Trump administration.
00:14:23.200 There are two camps.
00:14:26.300 One camp is urging the president, use the tariffs you've imposed,
00:14:31.420 the tariffs you've threatened, as leverage.
00:14:34.460 Yep.
00:14:34.980 To get our foreign trading partners to lower their own tariffs,
00:14:38.680 to open up their markets.
00:14:40.280 A lot of foreign countries have what are called non-tariff barriers.
00:14:43.080 They make it very hard for American farmers and ranchers and manufacturers
00:14:46.680 to sell their products into foreign countries.
00:14:49.480 And one camp says, use the tariffs Trump is threatening
00:14:54.860 to incentivize foreign countries to open up their markets.
00:14:59.380 I am very much in that camp.
00:15:00.880 Scott Besant, the Treasury Secretary, is very much in that camp.
00:15:04.340 Elon Musk, when he was in the administration, was very much in that camp.
00:15:09.340 There's a second camp, and that is a camp that believes tariffs are great,
00:15:14.620 not as a means to an end, but as an end in and of itself,
00:15:19.960 and wants to see very high tariffs in perpetuity forever.
00:15:25.500 I think the leading person in the administration in that camp is Peter Navarro in the White House.
00:15:30.400 I think that camp is mistaken.
00:15:32.780 I think those policies are harmful.
00:15:34.920 I think if we have a world where America has very high tariffs
00:15:38.500 and all our trading partners have very high tariffs,
00:15:40.560 I think that's going to hurt Texas farmers, Texas ranchers, manufacturers.
00:15:45.420 I think that's a bad outcome.
00:15:47.260 And I think President Trump in the Oval,
00:15:50.060 on almost a daily basis,
00:15:53.700 is listening to and deciding between a battle between the two camps.
00:15:59.380 How that resolves matters.
00:16:01.280 But my point, the president's threat of tariffs,
00:16:04.640 listen, Donald Trump is an unorthodox negotiator, to put it mild.
00:16:11.360 His...
00:16:11.800 Yeah, that's a great way of putting it.
00:16:15.340 Look, the way Trump negotiates, he walks up to you, 0.98
00:16:19.600 he whacks you in the head with a two-by-four, 0.97
00:16:22.020 and then he says, let's talk. 0.95
00:16:23.480 Yeah.
00:16:24.500 I got to say, it is effective.
00:16:27.200 And here's an amazing thing that I've seen,
00:16:29.900 and it's why Trump has changed my mind on tariffs.
00:16:32.260 I've seen over the last year and a couple of months,
00:16:37.160 our trading partners rushing to America saying,
00:16:42.500 we want to slash our tariffs and open our markets to American goods
00:16:46.160 in a way that I've never seen in my life.
00:16:47.940 And what I've urged the president is take yes for an answer.
00:16:54.580 You've threatened tariffs, they're lowering their tariffs,
00:16:57.960 negotiate a deal where everyone lowers their tariffs.
00:17:01.160 That is a win-win.
00:17:02.380 And there is an amazing irony.
00:17:05.680 There's an amazing irony, Ben, in that I think there's a real possibility
00:17:09.420 Donald J. Trump could go down in history as the greatest free trade president
00:17:16.040 the world has ever seen.
00:17:17.180 Now, that's astonishing because he is, historically, he's been a skeptic,
00:17:23.040 a vocal skeptic of free trade.
00:17:24.680 And yet, by threatening tariffs, a huge part of his argument against
00:17:29.340 what was considered free trade is he said, look, this is not free.
00:17:32.840 This is not fair.
00:17:34.880 We have no tariffs or very low tariffs on products coming into our market.
00:17:39.540 And every other country has really high tariffs and hammer our manufacturers.
00:17:43.980 That's not fair.
00:17:44.900 He's right about that.
00:17:46.040 And so what I've urged the president is take yes for an answer
00:17:49.820 and focus on reciprocity.
00:17:52.240 If they lower their tariffs, we lower ours.
00:17:54.660 And I got to say, I think Trump has shown that is an incredibly effective
00:17:59.160 foreign policy and economic policy.
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00:18:32.280 There's also an added benefit that we've seen, and there was a lot of people that were skeptical,
00:18:38.880 that were nervous, and that is how much money we've collected through these tariffs.
00:18:43.940 That has been also, I think, one of those like X factors of this as well, because as the president
00:18:49.060 was playing this high stakes game of chicken, in essence, and we keep winning, we were also
00:18:54.900 collecting an awful lot of money.
00:18:56.240 That was one of the upsides of this as well.
00:18:59.880 Unquestionably, $133 billion has come in already.
00:19:03.100 And let's do a little bit of a breakdown of the oral argument.
00:19:06.260 So at the oral argument, John Sauer, who is the U.S. Solicitor General, he argued for the
00:19:11.020 United States.
00:19:11.820 Neil Kachal argued for the plaintiffs, the small businesses.
00:19:15.460 Now, I know Neil very well.
00:19:17.520 Neil was Solicitor General under Obama.
00:19:22.020 Neil clerked at the Supreme Court at the same time I did.
00:19:24.820 So when I was clerking for Chief Justice Rehnquist, Neil was clerking for Stephen Breyer.
00:19:29.420 So we're friends.
00:19:30.440 We've known each other a long time.
00:19:32.560 In fact, in 2000, during the 2000 election between George W. Bush and Al Gore, I was part
00:19:41.760 of the litigation team representing Bush and Bush versus Gore.
00:19:45.720 Neil was part of the litigation team representing Al Gore.
00:19:48.360 And we're buddies.
00:19:49.860 We're friends. 0.97
00:19:50.400 So we would call each other late at night and be like, what kind of ridiculous argument 0.99
00:19:55.000 are you making? 1.00
00:19:55.640 This is stupid. 1.00
00:19:56.800 I can't believe you're saying this. 1.00
00:19:59.000 And it's a little bit just friends giving each other a hard time.
00:20:01.680 And we actually had a wager, Neil and I did, on the outcome.
00:20:05.800 I said, look, Bush is going to prevail.
00:20:07.840 We're going to win.
00:20:08.600 He said, no, Gore is going to prevail.
00:20:10.980 Well, obviously, I won that wager.
00:20:13.260 And the wager was dinner.
00:20:17.420 And so Neil had to take me out to dinner.
00:20:19.540 But you're going to like this, Ben.
00:20:21.200 Do you know what Neil did to sort of exact his revenge as he was paying off the wager?
00:20:25.780 I cannot wait to hear this.
00:20:28.120 He took me to a vegetarian restaurant.
00:20:31.520 Yeah.
00:20:32.020 If you've ever had dinner with you, that's like taking me to a vegetarian restaurant.
00:20:36.120 That's like the worst decision ever.
00:20:38.480 So what did you even order?
00:20:40.120 I don't remember vegetables because they didn't have any meat.
00:20:43.480 And I'm a carnivore.
00:20:45.360 But I kind of laughed.
00:20:46.540 I was like, all right, Neil, well played.
00:20:48.280 OK, so Neil is a very experienced, very capable Supreme Court lawyer.
00:20:53.140 So is John Sauer.
00:20:54.120 So you had two excellent advocates going at it.
00:20:56.740 Let's take Chief Justice Roberts.
00:20:59.440 Chief Justice Roberts repeatedly tried to reframe the case away from foreign affairs and towards taxation of Americans.
00:21:08.340 So, for example, Chief Justice Roberts asked, he said, tariffs and dealings with foreign powers, yes.
00:21:15.840 But the vehicle is the imposition of taxes on Americans.
00:21:18.660 And that has always been the core power of Congress.
00:21:23.420 And John Sauer tried to press back on behalf of the Trump administration.
00:21:27.020 And Roberts responded, well, who pays the tariff?
00:21:32.480 If a tariff is imposed on automobiles, who pays them?
00:21:36.620 And the answer, as I said before, is consumers pay some of them and the foreign producer pays some of them.
00:21:42.660 Roberts went on and he highlighted the structural collision between the executive foreign affairs power and Congress's taxing authority.
00:21:51.960 Roberts 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.
00:22:08.220 And then he said, yes, of course, tariffs and dealings with foreign powers.
00:22:12.560 But the vehicle is the imposition of taxes on Americans.
00:22:16.660 Justice Kagan, so Justice Kagan is the smartest of the liberal justices on the court, by far.
00:22:23.520 I know Justice Kagan well.
00:22:25.160 She was the dean of the Harvard Law School.
00:22:26.920 She was the U.S. Solicitor General also.
00:22:30.440 And she's a very, very smart liberal lawyer and judge. 0.99
00:22:35.680 What Justice Kagan tried to do is frame this all within the non-delegation doctrine.
00:22:41.300 So Justice Kagan said about the taxing power, she said, quote,
00:22:45.740 quote, but not with respect to tariffs, not with respect to quintessential taxing powers, which are given by the Constitution to Congress.
00:22:55.220 And she framed the case through the delegation doctrine, saying, quote,
00:23:00.100 in consumers research just last year, which is a case the Supreme Court just decided, we had a tax before us.
00:23:06.260 But if there's no ceiling on this tax, we sort of assumed if there was no ceiling, it would raise a delegation power problem.
00:23:15.900 And then she applied that logic to AIPA.
00:23:19.500 She said, how does your argument fit with the idea that a tax with no ceiling, a tax that can be anything the president wants,
00:23:28.040 would raise a pretty deep delegation problem?
00:23:31.680 And she rejected the government's argument to relabel tariffs.
00:23:36.580 She said, no, not with respect to tariffs, not with respect to quintessential taxing powers.
00:23:41.820 Now, understand what Justice Kagan is doing.
00:23:44.280 The non-delegation doctrine is a very important constitutional limitation on Congress giving too much power to the executive.
00:23:53.340 It is also something conservatives care a great deal about.
00:23:56.300 I think Justice Kagan, Justice Kagan, the three liberals are going to vote against Trump, no matter what, in any circumstance.
00:24:03.120 So Kagan is a no.
00:24:04.640 But 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.
00:24:15.320 She's trying to frame it in terms of conservative principles.
00:24:18.380 Now, Justice Gorsuch, if you look at his questions, his questions showed a significant degree of skepticism to the administration's position,
00:24:30.280 and in particular focusing on the major questions doctrine.
00:24:33.200 Again, the major questions doctrine is a big conservative principle that limits the power of the executive branch.
00:24:40.940 It's really important.
00:24:42.400 So Gorsuch asked, what is the limiting principle here?
00:24:45.780 And he asked further, if regulate importation includes tariffs, what stops the president from imposing them for any asserted foreign threat?
00:24:58.120 He asked some hypotheticals.
00:25:00.160 He said, could the president impose massive tariffs to address something like climate change if that's deemed a foreign threat?
00:25:08.440 It's actually a good question.
00:25:09.420 And he pressed further.
00:25:11.480 He said, once you accept that premise, it's hard to see what's left of the limitation.
00:25:19.020 Justice Barrett, she went on to say, Congress knows how to grant tariff authority explicitly.
00:25:28.020 Why isn't clearer language required if Congress meant to confer that power?
00:25:33.020 And she pressed the U.S. Solicitor General.
00:25:36.480 She said, if regulate imports includes tariffs of any size, what work is left for the rest of the statute to do?
00:25:45.140 Where do we find the limiting principle in the statute itself?
00:25:51.460 So, look, in terms of the questioning, Roberts appeared skeptical.
00:25:57.800 Gorsuch appeared skeptical.
00:25:59.700 And Barrett appeared skeptical.
00:26:01.420 So, on the conservative side, the justice that seemed most receptive was Brett Kavanaugh.
00:26:08.320 And Brett Kavanaugh said, the court has historically been very comfortable with very broad delegations in the foreign affairs context.
00:26:16.540 So, he framed it in terms of, look, the president has enormous flexibility when it comes to foreign affairs.
00:26:22.800 Justice Kavanaugh said, in one of his opinions, that the non-delegation concerns have less force where Congress is empowering the president in foreign affairs.
00:26:35.640 And Justice Kavanaugh focused on the historical practice, said there's a long tradition of broad delegations over foreign commerce going back to the founding.
00:26:46.000 And he engaged the solicitor general seriously.
00:26:50.940 He said, that's consistent with cases like Chicago and Southern Airlines and Curtis Wright.
00:26:55.580 I think Kavanaugh is going to be a likely vote to uphold the tariff authority.
00:27:02.780 And so, that argument was significant.
00:27:06.920 Now, Justice Thomas.
00:27:08.960 Justice Thomas historically asked very few questions.
00:27:12.440 That was true here.
00:27:13.140 But his questions were focused on history and the original understanding of the Constitution.
00:27:19.380 So, Justice Thomas asked, historically, weren't tariffs one of the primary ways Congress regulated foreign commerce?
00:27:28.820 And he went back to that.
00:27:30.140 He said at the founding, there was a sharp distinction.
00:27:33.780 Was there a sharp distinction between regulating imports and imposing duties on them?
00:27:39.720 So, he was very much focused on what the practice of the country has been from the founding.
00:27:44.800 He also asked, if tariffs were understood as tools of trade regulation, why wouldn't the power to regulate foreign commerce include them?
00:27:55.460 Very good question.
00:27:57.420 And when it came to the non-delegation doctrine, he said the following, quote,
00:28:03.380 Non-delegation is a modern doctrine.
00:28:06.660 What evidence do we have that Congress historically could not confer this kind of authority in matters of foreign commerce?
00:28:17.440 Justice Thomas' question suggests he is very likely to vote in favor of the president's tariff authority.
00:28:25.920 And then let's focus on Justice Alito.
00:28:27.960 Justice Alito was really focused on workability, remedies, and consequences.
00:28:37.700 So, he said, he was asking about practicality.
00:28:41.860 He said, if we accept your position, what happens to all the tariffs that have already been collected?
00:28:48.380 He also highlighted, and I think this is critical, this may be the most important question asked.
00:28:55.620 There are enormous reliance interests here, both for the government and for private actors who have ordered their affairs around these tariffs.
00:29:04.560 And he questions the plaintiffs.
00:29:06.360 He said, is your position that Congress must always use the word tariff expressly, even in statutes dealing with foreign emergencies?
00:29:15.320 That doesn't sound very plausible.
00:29:17.420 And he pressed whether the case could be resolved narrowly.
00:29:20.300 He 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?
00:29:30.060 I actually think Justice Alito's questioning is going to frame what the court does.
00:29:36.460 Now, we have, in a lot of big cases, a 6-3 divide.
00:29:41.780 You have the three liberals who vote against Trump on everything.
00:29:44.920 And you have six justices that are on the conservative side of the aisle, although they vary.
00:29:51.720 I'm going to predict we're going to lose one.
00:29:53.620 I don't know which, but I think we will lose, in all likelihood, either Gorsuch or Barrett.
00:30:00.220 But 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.
00:30:14.520 And the reason...
00:30:17.440 I like these bold predictions, by the way.
00:30:18.760 This makes it fun.
00:30:20.160 And look, I have no inside information.
00:30:22.160 I could be totally wrong.
00:30:23.640 But I do know the court quite well.
00:30:26.700 I did spend my entire career, before I was in the Senate, was arguing before the court.
00:30:31.620 And look, Roberts, in particular, is an institutionalist.
00:30:36.280 And I actually think this case is quite similar to the Obamacare case.
00:30:41.840 The Obamacare case, during the Obama presidency, was a challenge to Obamacare, and ultimately, Chief Justice Roberts upheld Obamacare.
00:30:51.460 And 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.
00:31:03.540 It would question the authority of the court.
00:31:05.280 So I think he made an institutionalist decision.
00:31:08.380 Let's not disrupt the status quo.
00:31:10.360 I 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.
00:31:26.000 That 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.
00:31:41.380 And the dissenters will be the three liberals, and either Barrett or Gorsuch.
00:31:44.640 That's my prediction.
00:31:45.800 We'll see what happens.
00:31:47.040 For the next 60 seconds, can you hit pause on your life and just think about this.
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00:32:51.560 All right, final question for you, and that is the politics of this.
00:32:56.240 If it comes out the way that you just predicted, how big of a victory is this specifically for Donald Trump?
00:33:04.380 And how important is it moving forward for the next three years of his presidency?
00:33:08.480 And 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?
00:33:19.680 Look, if the Trump administration wins, it's a big deal.
00:33:23.100 This is the central part of his foreign policy and trade policy.
00:33:28.000 By the way, we've also talked about how he's used tariffs in other circumstances.
00:33:31.200 For example, we've done a deep dive previously on using tariffs to force Mexico to provide water to South Texas.
00:33:39.620 That's something I've urged him to do.
00:33:41.880 He's threatened tariffs.
00:33:43.340 And 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.
00:33:54.180 The Biden administration would do nothing to force Mexico to comply with the treaty.
00:33:59.280 President Trump, at my urging, threatened tariffs against Mexico and Mexico immediately complied.
00:34:05.900 It was powerful and effective.
00:34:07.720 It's a big part of the reason I changed my mind.
00:34:09.600 I'm like, wow, we got Mexico to to do something in our national interest just by threatening tariffs.
00:34:16.340 Now, to be clear, if we imposed high tariffs in perpetuity against Mexico, I think that'd be really bad for America.
00:34:24.260 It'd be terrible for Texas. 0.92
00:34:25.520 Texas, our farmers, ranchers, manufacturers make enormous money trading with Mexico.
00:34:30.400 So I don't want to see high trade barriers.
00:34:33.460 But the threat of tariffs got Mexico to provide the water they owed us under the treaty.
00:34:39.520 Now, if the decision goes the wrong way from the Trump administration, if they strike down the tariffs, it's not the end of the day.
00:34:46.000 Because there are other avenues to impose tariffs.
00:34:49.720 So there are three in particular.
00:34:51.840 Number 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.
00:35:03.320 The second way the president could try to impose these tariffs again is under Section 232 of the Trade Expansion Act of 1962,
00:35:11.860 which allows tariffs on imports threatening national security, which was the vehicle Trump used for steel and aluminum tariffs.
00:35:21.740 And the third is under Section 201 of the Trade Act of 1974, which permits temporary, quote,
00:35:29.840 safeguard tariffs to protect domestic industries from serious injury caused by import surges.
00:35:36.780 So there are three other statutory bases that the president could go to.
00:35:41.240 And if the Supreme Court rules against him, I think the president will go to use those.
00:35:45.660 So you could end up at the same result.
00:35:48.080 But at the end of the day, I'm going back to my prediction.
00:35:51.080 Five for the Trump administration prevails.
00:35:53.800 Wow.
00:35:54.300 It's going to be really fun to watch.
00:35:55.980 I love the prediction.
00:35:57.040 We'll obviously let you know how the prediction works out.
00:36:00.800 And you're either going to look brilliant.
00:36:02.140 I have no prediction here, so I'm just going to let this be either you're brilliant or I get to rag on you in the show after this.
00:36:08.260 I'm excited about that.
00:36:09.720 Rarely do you give me that chance, by the way.
00:36:11.640 So for me, this is kind of fun.
00:36:13.180 I'm not going to lie.
00:36:14.380 I'm not going to lie.
00:36:15.100 Don't forget, we do this show Monday, Wednesday, Friday.
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