Ian Millhiser
Appearances
Today, Explained
Trump’s emergency powers grab
Yeah. So there is this court called the U.S. Court of International Trade, which it is a federal court that hears disputes arising out of America's trade laws.
Today, Explained
Trump’s emergency powers grab
And the biggest trade story, I mean, maybe of the last 30 or 40 years is Donald Trump's tariffs and whether the president has the power to essentially impose enormous new taxes on imports that are expected to drive up the price of goods for every American. I listened to the oral argument yesterday in the trade court.
Today, Explained
Trump’s emergency powers grab
And while I'm not certain what's going to happen, what I heard is three judges that sounded really skeptical of the tariffs. And so I think it is more likely than not that we're going to get a court order pretty soon, which could make the tariffs go away.
Today, Explained
Trump’s emergency powers grab
So the case is called VOS Selections versus Trump. VOS Selections is just a liquor and wine importer. They import Italian wines and various bottles from other countries. And so obviously, whenever they bring a bottle into the country, they have to pay the tariff, and that's not good for their business. And then there are four or five other businesses who've signed on with plaintiffs.
Today, Explained
Trump’s emergency powers grab
And it's a similar story with all of them. One's like a bicycling company. One makes like electronic products. And they have to import some of their components. And so they're paying tariffs on these components that they're getting overseas. And they don't want to pay that tax. So they're just in court saying, look, these taxes are illegal. We shouldn't have to pay.
Today, Explained
Trump’s emergency powers grab
So the statute, the federal law that Trump relied on when he put the tariffs in place, it's called the International Emergency Economic Powers Act. And the key word there is emergency. Emergency.
Today, Explained
Trump’s emergency powers grab
The statute says that Trump is allowed, does have sweeping power to regulate the importing of foreign goods, but only when there is, and this is the language that the statute uses, an unusual or extraordinary threat to which a national emergency has been declared. Much of the argument yesterday focused on what those words unusual and extraordinary threat is.
Today, Explained
Trump’s emergency powers grab
Trump claims that the reason we need these tariffs is because the United States has trade deficits. It buys more stuff from many countries than it sells. And we've had trade deficits for decades. Like trade deficits aren't really an unusual thing. I have a trade deficit with the grocery store. I buy more stuff from them than, you know, than I sell. So the argument is pretty straightforward here.
Today, Explained
Trump’s emergency powers grab
It's just like trade deficits are ordinary, right? Like, even if you think that trade deficits are bad, they're not unusual or extraordinary. And so the argument is that this statute, which only lets Trump respond to unusual and extraordinary threats, doesn't apply in this case.
Today, Explained
Trump’s emergency powers grab
So the government's primary response to this argument is essentially to tell the courts, you can't touch us, ha ha ha. They put that in a legalistic way. They claim that the question of whether such a threat exists is what's called a political question. And political question is legalese for the courts don't get to decide it. You know, it has to be decided by the other two branches of government.
Today, Explained
Trump’s emergency powers grab
It is possibly the biggest self-inflicted economic blow that the United States has done to itself in my lifetime. And the courts could just make that all go away. So, you know, that's exciting.
Today, Explained
Trump’s emergency powers grab
And so they're primarily just saying, look, courts, it doesn't matter if this is an unusual threat or not. You don't get to make that decision. Donald Trump gets to make that decision. The president gets to make that decision. You know, often, especially in constitutional cases, the core question is who gets the final word on this?
Today, Explained
Trump’s emergency powers grab
And the plaintiffs say that the court should have the final word on this. And Trump says that he should have the final word on it.
Today, Explained
Trump’s emergency powers grab
But since no one has yet cited a dictionary definition for unusual or extraordinary, I thought I would offer one. Unusual just means not usual. That's the Merriam-Webster dictionary definition, and extraordinary is going beyond what is unusual, regular, or customary. That fits with the state of affairs that this executive order describes. It explains, again,
Today, Explained
Trump’s emergency powers grab
So broadly speaking, there's three ways this could turn out. One, they could just uphold the tariffs and then the tariffs stick around, assuming that a higher court doesn't step in. The second is that they just think this wall that Trump relied on doesn't allow these particular tariffs to exist. That would be a very narrow opinion.
Today, Explained
Trump’s emergency powers grab
And I don't know that in a decision that says that would necessarily get rid of the tariffs for very long because there's other statutes, the Trade Act of 1974, which which also potentially allow Trump to impose tariffs. It would just take longer for him to do it under the Trade Act. So if they strike this down on statutory grounds, we could be back having this argument a few months from now.
Today, Explained
Trump’s emergency powers grab
And then the third possibility is – During the Obama and Biden administrations, a bunch of Republican judges and justices came up with very aggressive theories to limit the power of the president because they didn't want Obama and Biden doing things like canceling student loans.
Today, Explained
Trump’s emergency powers grab
And these judges could potentially take these doctrines that were created to go after Joe Biden and just apply them to Donald Trump. And if that happens, it could mean that the tariffs are gone for good. So I don't say this with any degree of certainty, but I'm like 60 to 70% sure that they're going to strike the tariffs down. They did have... You know, lots of questions for both sides.
Today, Explained
Trump’s emergency powers grab
In response to Trump's lawyer, I mean, they did not buy this argument that that's a political question. The court shouldn't be involved at all. You know, there was a lot of mockery of that question.
Today, Explained
Trump’s emergency powers grab
They brought up constitutional and quasi-constitutional arguments like this thing called the major questions doctrine, which essentially says that when the president tries to do something that's too big, that the court should be very skeptical of that. Trump argued that the major questions doctrine doesn't apply to him, and the judges didn't seem to buy that at all.
Today, Explained
Trump’s emergency powers grab
So, you know, it's not like they all stood up and said, verily, we three judges intend to strike down the tariffs, and you can, you know, reporters can listen to us say this and know with certainty what's going to happen. But it sounded more like the sort of hearing that the government loses in than it sounded like the kind of hearing where the government wins.
Today, Explained
Trump’s emergency powers grab
That said, I would be stunned if this doesn't go to the Supreme Court. The U.S. Court of International Trade, like, you know, these are experts on trade. I was impressed by the professionalism of the judges that I heard hearing the case yesterday. Right. But these are obscure officials.
Today, Explained
Trump’s emergency powers grab
We generally don't want rando trade policy walks to be deciding the most important political questions for the United States. Generally, that's a matter that we want the big hitters to be brought in. And in this case, the big hitters are, unfortunately, the Supreme Court justices. So I'm fairly confident that this is going to go up to the Supreme Court eventually.
Today, Explained
Trump’s emergency powers grab
Yeah. So this statute is a little different than a lot of the other emergency statutes. This one – and I'm just going to – again, I'm going to read it again. It says that the powers that Trump is invoking here can only be used to, quote, deal with an unusual and extraordinary threat with respect to which a national emergency has been declared.
Today, Explained
Trump’s emergency powers grab
Now, I read that and I hear there are two things that needs to happen. One is that the president needs to declare an emergency. He's done that. I don't think the courts can review that, and that's fine. But the second thing is that the statute also says that whatever he's reacting to actually has to be an unusual and extraordinary threat.
Today, Explained
Trump’s emergency powers grab
So, I mean, I don't know what the courts are going to do here. Maybe they're going to start second-guessing every emergency declaration that a president makes, and I don't really think that would be a good idea. Because a lot of the time these statutes, again, they aren't really about like, is this something that you and I would call an emergency?
Today, Explained
Trump’s emergency powers grab
They're about, is this so important that it warrants the president's personal attention? And I don't know that we want courts getting involved in making those calls. But in this case, this statute says two things have to happen. It's not just that the president has to declare an emergency. It's that there has to actually be an extraordinary and unusual threat.
Today, Explained
Trump’s emergency powers grab
And so I'm hoping the courts are going to say, look, we can just set aside the question of whether Trump was right to declare an emergency and focus on whether that unusual and extraordinary threat exists.