After we recorded this episode, more Republicans voiced concerns about Trump. Senator Mitch McConnell pointedly noted that Congress is “not an inconvenience to avoid.” Other Republicans celebrated the ruling. The betrayal angered Trump further, underscoring the dynamic we explore here.
After the Supreme Court struck down his tariffs, Donald Trump flew into a rage. He attacked and even tacitly threatened the conservative justices who voted against him. He vowed to revive his tariffs using other authorities, and he declared that he has zero obligation to go to Congress to do so. It’s all supposed to sound very scary, yet this time around, Trump really looks like a floundering, diminished figure who’s struggling to keep up the appearance that he isn’t afraid to wield “dictatorial power.” And yet, there are signs it’s already backfiring as well, with at least one Republican declaring that Trump’s threats should prompt the GOP Congress to take more of a stand against him on all this. We’re talking about all this with Matthew Seligman, founder of Grayhawk Law and a legal scholar at Stanford who represents some of the businesses looking for tariff refunds after the decision. Matt, good to have you on.
Sargent: So, the Supreme Court invalidated all of the tariffs that Trump instituted using the International Emergency Economic Powers Act, or IEEPA. That knocks out a bunch of the tariffs on China, Mexico, and Canada—all the global reciprocal tariffs and a number of others. Matt, can you explain exactly what the court ruled?
Seligman: Sure. This was a decisive ruling against the president here. So, the International Emergency Economic Powers Act—or IEEPA—grants the president the authority to, as relevant here, “regulate importation” if he declares an emergency and the action he takes is designed to deal with an, quote, “extraordinary and unusual threat.”And what the court held here is that “regulate importation” doesn’t include the power to impose tariffs. And so, all of the tariffs that were instituted relying on IEEPA are now wiped out.Sargent: Yeah. So just to clarify: Under the IEEPA statute, the statute doesn’t mention the word “tariffs,” yet Trump magically saw in those two other words—”regulate” and “importation”—a quasi-unlimited power to impose tariffs on any country, anywhere, at any time, for any reason.Seligman: Yeah, that’s right. And if you view it that way—which is the right way to view it, and I think it’s the way the court viewed it—that’s an extraordinary delegation of power. And there’s no good reason to think that Congress did that.The reason why we know that is Congress has given the authority to the president to institute tariffs in other statutes. Now, when it did so, it used the word “tariff,” and that’s conspicuously absent in IEEPA. It also imposed all sorts of limitations on the sorts of investigations that the United States Trade Representative has to do first, the sorts of findings that are required, all sorts of procedural requirements, how long the tariffs can be, how big they can be.And the president just—as he often does, like a steamroller—just blew past all of those legal niceties and then just did what he wanted to do. And as a result of that, the court stepped in and said, No, this is not a statute that authorizes you to do this.Seligman: He is, it seems, completely committed to trying to have these tariffs survive going forward. And there are other statutes that the president can rely on to impose tariffs. What we can anticipate now is that he’s going to go back to the drawing board and do what, arguably, he should have done in the first place—which is to try to rely on these other statutes.
Sargent: Well, they certainly are. And of course, if Trump wanted, he could simply go to Congress—which actually does have the power to tax—and ask them to impose the tariffs he wants. Trump was asked about exactly this. Listen.
Donald Trump (voiceover): I don’t have to. I have the right to do tariffs. And I’ve always had the right to do tariffs. And it’s all been approved by Congress, so there’s no reason to do it. All we’re doing is we’re going through a little bit more complicated process. Not complicated very much, but a little more complicated than what we had. We’ll be able to take in tariffs—more tariffs.
You know, Matt, I think Trump struggles a little bit with the concept of the separation of powers. What did you make of that exchange?
Now, he said that he doesn’t need to go to Congress. Well, I think there are two reasons why he’s saying that. The first reason is because he doesn’t have the votes. Whether you count them as good Republicans or bad Republicans, they still have a vote in Congress. So in the current Congress—and I think it’s definitely going to be true in the next Congress where there’s a good chance the Democrats regain the House—there’s just not going to be the votes in Congress to pass a new statute that says, Donald Trump’s tariffs are legal going forward.
And the Supreme Court—on an issue that Donald Trump seems emotionally invested in beyond almost any other issue—the Supreme Court said no. And he’s trying to process that in real time on stage as the world watches.
Seligman: Yeah, sure. So I’ll give you a list. And before I do, I just want to say: If these other statutes gave them all the power that they asserted under IEEPA, there’s a big question about why they didn’t do that in the first place. You know, we have to take their very confident assertions about these other statutory authorities with a grain of salt.
And look, I don’t think that that’s true. But the president seems to think that that’s true. The authority does exist, but it requires a whole bunch of procedural steps that will take time. And if they do it wrong, the courts will step in and say, No, you didn’t follow the procedural steps that are required.
Seligman: So there’s another one: the Trade Expansion Act of 1962, Section 232. Now, this is targeted at national security. And there are some tariffs that you could plausibly connect to national security—for example, if you’re trying to rebuild American manufacturing capacity for certain critical products like semiconductors or magnets, earth magnets, that sort of thing.
And so we’ll have to see. The courts are deferential on these sorts of things. If the president says there’s a national security threat, that doesn’t mean the courts won’t impose any limitations whatsoever. Because again, what the court said here is: We are going to review whether the statute actually authorizes the president to impose these tariffs—because tariffs are a particularly powerful weapon, and the Constitution gives that power to Congress.
Don Bacon (voiceover): I thought maybe we could back off because the Supreme Court ruled, but hearing the president just now say he was going to do a 10 percent global tariff and he’s going to try to use other authorities for tariffs means that we got to keep voting on this and having the majority position heard. So I think the president didn’t do himself any favors with those comments today.
Seligman: I think there’s an extent to which that’s true, but one of the few things about which Donald Trump is right is that there’s a real division within the Republican Party, and specifically among Republicans in Congress. And there’s a big split between the Senate and the House here.
There are not the votes in Congress to repeal the tariffs, because that would have to overcome Donald Trump’s veto of any repeal. And there aren’t the votes in Congress to pass a statute authorizing the tariffs. And so we’re in this, sort of, “suspended animation” from Congress where, you know, the entire question is going to be: What does Donald Trump do, trying to use his unilateral authority either under the Constitution or these preexisting statutes? And that’s why this is going to continue to be a legal fight that, you know, very well may go to the Supreme Court again.
Let’s listen to a few other things Trump said. Here he attacks Justices Neil Gorsuch and Amy Coney Barrett, who voted with the majority.
Sargent: And here Trump sort of threatens to investigate the Supreme Court for supposed “foreign influences.”
Donald Trump (voiceover): You’ll find out.
He always has to be formidable and strong; he always has to have his enemies on the run. He can never be losing. He’s always got to be knocking the heads together of his foes. He’s got to be in command, right? So he can’t help but go out there and say these really preposterously stupid things about the court, because he wants to signal to MAGA: I’m in charge, you know? I didn’t lose; I’m winning, right? But it only can backfire on him more. Isn’t it a funny dynamic?
Again and again, he kept firing his Secretary of State, firing his Chief of Staff, and then firing his National Security Advisor—again and again. And then, you know, tweeting out or posting on Truth Social that they were incompetent. Well, okay—if you’re such a “great businessman,” why did you hire them?
For some reason, by his own admission, his complete incompetence at hiring people has somehow not yet brought him down. But I agree with you that maybe we’re hitting a turning point where all of the ways in which he has not followed through and delivered on all of his preposterous promises—maybe that political check is finally coming.
Seligman: Well, I think he’s going to try to use the statutory authorities that he has, and those will constrain him. I’m a little bit more pessimistic than you are about whether he’s going to feel chastened by this. I think that he has the look and sound of a “cornered political actor” and that he’s going to start lashing out more. I think there’s a risk that he tries to use even more aggressive assertions of executive power—both within the tariff domain and otherwise—precisely because he is in this politically weakened state.
Seligman: That’s absolutely right. And I think if you think about the political implications of the way he spoke today, the American business community has tried to avoid provoking him. They’ve tried to avoid “poking the bear”—to continue the wildlife analogy—because they’re concerned about retribution.
Sargent: Matthew Seligman, thanks so much for that great summary. I really do think it was a big win nonetheless. God knows that he will lash out in all sorts of vicious ways, but I do think he’s a somewhat diminished figure now. Matt, always great to talk to you.
Seligman: Thanks for having me on.
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