The following is a lightly edited transcript of the May 30 episode of the Daily Blast podcast. Listen to it here.
Greg Sargent: This is The Daily Blast from The New Republic, produced and presented by the DSR network. I’m your host, Greg Sargent.
President Donald Trump’s advisers are in a fury over a court ruling that temporarily blocked many of Trump’s tariffs from going into effect. They’re calling it “judicial tyranny,” the work of “globalists,” and all sorts of other terrifying names. Just now, an appeals court put an administrative stay on the lower court ruling, so the tariffs can proceed for now. But we think a major Rubicon was crossed here. It’s now clear the tariffs are extremely vulnerable legally—and if anything, the whiplash in the courts only underscores what a fiasco of uncertainty Trump has imposed on the country. At some point, Trumpworld will probably have to confront more seriously adverse court rulings on this, so Trump’s conflict with the judiciary will only get worse. Today, we’re fortunate to be talking to one of the lead lawyers on this case, Ilya Somin of George Mason University, who’s going to lead us through all this. Ilya, thanks so much for coming on.
Ilya Somin: Thank you for having me.
Sargent: Let me just start, Ilya, by saying congrats on the ruling. Your plaintiffs and you must be pretty pleased with that.
Somin: We’re definitely very happy the way the ruling came out, and the court recognized the validity of our pretty strong arguments against this egregious abuse of power by the president.
Sargent: Well, let’s tell people what happened. The U.S. Court of International Trade, which oversees such disputes, ruled on Wednesday that many of Trump’s tariffs have violated the law. We’re going to go through this really slowly. The first key thing is this: Trump had argued that the International Emergency Economic Powers Act of 1977, or IEEPA, gives him virtually unlimited authority to invoke an emergency and impose the tariffs on that basis. The emergency invoked was our trade deficits, which is absolutely absurd. Crucially, the court said the IEEPA doesn’t authorize any such thing. Ilya, can you explain that component of the ruling?
Somin: Yes. What the court basically said is that under the administration’s interpretation of IEEPA, the administration would basically have virtually unlimited power to impose any tariffs at once against any nation at any time for any reason. And that kind of unlimited power is the only possible way to justify the “Liberation Day” tariffs. And the court ruled since such unlimited power is not available under the statute, and would be unconstitutional if it was available, that therefore these “Liberation Day” tariffs are illegal and have to be struck down. It also ruled in a different set of IEEPA tariffs, which were brought forth in a companion case filed by the state of Oregon and 11 other states related to fentanyl; we can talk about that later if you wish.
Sargent: Well, the key thing here is that the statute in question has actual language that says what emergency authority the president has. Can you describe that language and explain what the court said about how Trump violated it?
Somin: So first, president has to declare a national emergency, but it also has to be an emergency that is related to an extraordinary and unusual threat to the American economy or to our national security emanating from abroad. And in these two cases, it is pretty obvious that there is no such threat from trade deficits. There is nothing extraordinary or unusual about them; they happen all the time, and they’re not even a threat. The court didn’t get into the details of that, but simply said there is no way to justify the “Liberation Day” tariffs under the statute except to give the president essentially unlimited power to declare anything he wants to an emergency and an extraordinary and unusual threat. The analysis on the fentanyl-related tariffs was a little bit more complicated.
Sargent: OK, just to be clear, the court essentially said that Trump had violated the statute by just essentially pulling an emergency out of his ass, to put this in layman’s terms. So now an appeals court has placed an administrative stay on the ruling. What happens now, and what unfolds from there?
Somin: An administrative stay is a fairly standard procedure, which briefly delays the implementation of a lower court ruling while the two parties—or in this case, more than two parties—litigate the question of whether there should be a longer stay put in place that would continue until the case is fully adjudicated in the appellate court. We, of course, are opposing the imposition of a longer stay, and there should be a ruling on that, we anticipate, in the next couple of weeks.
Sargent: So we now see from what happened that Trump’s tariffs are legally very vulnerable, and Trump’s MAGA advisers are absolutely livid over that. Stephen Miller called the ruling against the tariffs a “judicial coup,” and then he upgraded that to “judicial tyranny.” Peter Navarro, a top trade adviser, said the court is “globalist,” whatever the hell that’s supposed to mean. Adviser Jason Miller ripped into “unelected judges who are forcing their will” on the economy. And here’s White House press secretary Karoline Leavitt, who always outdoes everyone. Listen to this.
Karoline Leavitt (audio voiceover): There is a troubling and dangerous trend of unelected judges inserting themselves into the presidential decision-making process. America cannot function if President Trump, or any other president for that matter, has their sensitive diplomatic or trade negotiations railroaded by activist judges. President Trump is in the process of rebalancing America’s trading agreements with the entire world, bringing tens of billions of dollars in tariff revenues to our country, and finally ending the United States of America from being ripped off. These judges are threatening to undermine the credibility of the U.S. on the world stage.
Sargent: Ilya, this is remarkable stuff, because the only tyranny that’s at issue here is Trump’s tyranny. He’s declaring the power to unilaterally impose tariffs on imports from all over the world based on a fake emergency that is entirely invented by him. Your response to all those arguments you heard?
Somin: I think the only attempted coup here is, as the courts have ruled, the president’s attempt to usurp a power that belongs to Congress on the basis of a bogus emergency and applying a statute that doesn’t even mention the word “tariffs.” Our forbearers politically, not genetically—the British in the seventeenth century— overthrew King Charles I because he tried to impose taxes without the authorization of the legislature. Trump is now trying to act like a monarch himself, imposing what would be a massive $2 trillion tax increase on Americans without any meaningful congressional authorization.
Sargent: Absolutely. And in addition to all this, another thing that renders their arguments really absurd is that one of the judges who ruled against Trump’s tariffs was appointed by Trump during his first term. He’s Timothy Reif. And here’s a key thing: Timothy Reif has protectionist sympathies. He previously worked for Robert Lighthizer, who never saw a trade war that he doesn’t love. That’s an essential piece of this not just because it undercuts efforts by MAGA right now to cast this as an illegitimate ruling by out-of-control judges; it’s also because it really underscores what an abuse of power these tariffs are. A judge who’s sympathetic to Trump’s worldview on trade said the law doesn’t authorize Trump to take these trade actions. How important do you view this as being, Ilya?
Somin: I think it’s clear that what we have in this panel is three judges appointed by presidents of both parties, two of them by Republican presidents: one by Reagan, one Judge Reif, whom you mentioned, appointed by Trump. If these people are “globalists,” then I’m not sure what that term means unless it’s used to refer to anybody who rules against Trump on anything. Did Trump appoint a “globalist” to the Court of International Trade? Seems to me unlikely. I would add also that the Trump administration wanted these cases to be in the Court of International Trade. When other people filed actions in other courts, the Trump administration has moved for them to be transferred to the Court of International Trade on the theory that this is the court that’s supposed to have jurisdiction—exclusive jurisdiction—over issues involving U.S. trade policy. So they lost in the very court that they wanted to be in, and at least one of the three judges was the kind of judge that many people might have expected would be sympathetic to them. That just shows the magnitude of the power grab that was attempted here.
Sargent: Right. So this “judicial coup” perpetrated by “globalist” and “unelected judges” was carried out in the court that the Trump people wanted to fight this out in.
Somin: Absolutely. And by judges, at least one of whom was as likely to be sympathetic to them as perhaps any judge would be.
Sargent: I want to highlight another key thing in the ruling. In essence, the court said that the president cannot simply claim that trade deficits are an emergency facing the country and exercise authority on that basis. There has to be an actual emergency. In other words, the court essentially said something isn’t an emergency simply because Trump says it is. I view this as a really critical thing because Trump is abusing emergency authorities across the board, simply claiming that whatever he says is an emergency must be one. And of course that unshackles all sorts of extraordinary authorities in his mind. Can you talk about that piece of the ruling?
Somin: Yeah. So the IEEPA statute has two requirements before presidents can invoke it. One is there has to be a national emergency declared. But two is that even if there is a national emergency, it has to be an emergency with respect to an extraordinary and unusual threat. And what the court said is that these things are not just delegated to the president to decide, however he wants to, whether an emergency exists or whether there’s an extraordinary and unusual threat. Courts have to review whether the facts show that there really is an extraordinary and unusual threat and whether the tariffs that have been adopted by the president are actually responding to that threat. And in this case, they concluded that that is not the case.
Sargent: Right. So the words “extraordinary” and “unusual threat,” which appear in the statute—that’s the threshold that has to be cleared. Those words have meaning in the real world, and Trump can’t just say that something’s an emergency. Isn’t that the basic essence of this?
Somin: Yes, I think so. Although, it is also true that the court wasn’t completely clear whether the main emphasis of their analysis was on the words “extraordinary” and “unusual threat” or on the term “emergency.” What they did emphasize and what they did conclude is that the statute as a whole does have meaning, and it doesn’t just simply mean whatever the president says is an extraordinary and unusual threat. Or as one of the judges, Judge Restani, put it in oral argument, the president can’t just say any crazy thing qualifies as an emergency or an extraordinary and unusual threat. She used the example of a peanut butter shortage where the president could claim that’s an extraordinary and unusual threat and impose tariffs as a result. I think that’s just an example of the ridiculousness that you can get if the president just gets to unilaterally decide what qualifies as an extraordinary and unusual threat that allows triggering of the enormous powers created by the statute.
Sargent: And let’s be blunt about this, Ilya. That declaration by the court—that Trump doesn’t have unlimited authority to say what an emergency is—is almost certainly one of the things that really triggered some of the people around him, especially people like Stephen Miller, because they have a project. It’s a real project, which essentially entails giving the president unlimited authority to act against apocalyptic emergencies that he simply says are there. Can you talk about that? This is a big, big thing that’s at stake here beyond this case, isn’t it?
Somin: Yeah. Obviously, there’s been a bunch of other power grabs by this administration, some of which we can talk about. I myself have been involved in opposing that under the Alien Enemies Act. And when you put them together, a lot of them are essentially claiming that the powers normally reserved for extraordinary emergency situations can, in fact, be used as a matter of course. This is a standard tactic of various authoritarian regimes around the world. Admittedly, emergency power has been abused by previous presidents, including—I’m sorry to say—President Biden with, for example, his student loan forgiveness power grab. But the power grab here is even bigger than those. Trillions of dollars are involved. It’s the biggest such power grab, at least in economic terms, in modern American history. And there’s a number of others. And yes, if you look at the things that people like Stephen Miller and some of his other advisers have written and said, it seems like they have this vast outsize role for executive power in mind that would in fact turn the president into a quasi-dictator or even a king.
Sargent: I think there’s no question about it. They know that their stuff is deeply unpopular among other things, and they realize that the only way they can realize their designs is if the president has monarchical or dictatorial powers. I want to ask you, Ilya, what happens now? Can you walk us through how this unfolds? What do you expect in the next few months or over the next year in the courts? How’s this case going to proceed?
Somin: Sure. As I mentioned before, within the next few weeks, there’s going to be a decision on whether the trial course decision is going to be subject to a stay or not. If it is subject to a stay, then it would be held in abeyance while the appellate courts litigate this further. Whether there’s a stay or not, this case has been appealed to the U.S. Court of Appeals for the Federal Circuit, which has oversight over appeals from the Court of International Trade among other things. Whoever loses there could potentially appeal to the Supreme Court. How long will that take? I don’t know for sure. So far, this case and other cases related to the tariffs have proceeded at a much faster pace than litigation usually does because the courts recognize the importance and time sensitivity of the issue. I think it’s possible that the Federal Circuit will also have a relatively accelerated schedule but we don’t know that yet.
And obviously, if it gets appealed to the Supreme Court, the Supreme Court may or may not be willing to take the case. With rare exceptions, they only take those cases that they want to. There’s almost no cases that they’re required to take. And if they do take the case, they also would face a decision: Do they want to put it on some accelerated schedule, or would it take many months the way Supreme Court cases usually do? So it’s possible the litigation over this will be over within just a few weeks or a couple months, but it’s also possible that it will take longer than that. I know many people, especially many people in the business community, are anxious for a quick resolution. So are we and our clients, but we don’t yet know for sure how quick it is going to be.
Sargent: So let’s just talk about what happens if the appeals court rules in your favor. First, I should say, do you anticipate that you have a reasonable chance of prevailing at the appeals court? And if so, what would happen then? Would the tariffs get put on hold? It just seems like there’s an immense amount of churn and uncertainty in the future right here that we’re looking at.
Somin: Yeah. We do believe we have an excellent chance at the appellate court. As I said before, judges appointed by presidents of both parties very strongly ruled in our favor, including one judge that many people thought might be predisposed to favor the other side. We have a number of different arguments, some of which I already mentioned, that should appeal to both liberal and conservative judges. And just the magnitude of the power grab here is so great that I think few judges will be willing to contemplate it, though obviously I can’t make guarantees. Therefore, I think we have a good chance to win. If we do win, then obviously the lower court decision gets upheld and the tariffs will be blocked. Indeed, they might be blocked even before then if the Court of Appeals rejects the government’s motion for a more permanent stay.
Sargent: And if the appeals court does rule your way, if the Supreme Court simply declines to take it, that would mean that the appeals court ruling against the tariffs would stand. And the alternative, of course, is the Supreme Court takes it. Game that last bit out for us.
Somin: Sure. So if the Supreme Court does decide to take it, they would have the choice of either staying the lower court ruling or letting it remain in effect while the case is litigated at the Supreme Court. And they would also have the options of trying to put the case in a relatively accelerated schedule by the Supreme Court’s admittedly somewhat leisurely standards, or putting it on their more normal docket. And at this point, it is not easy to foresee [if] they [will] take the case, and if they do on what kind of schedule it will be on. I do think there is a good chance that if they were to take it, it would be on at least a somewhat accelerated schedule because the Supreme Court, like the lower courts, understands the magnitude of the issues and also the time sensitivity of them.
Sargent: I think a lot of people haven’t wrapped their heads around the fact that there’s an actual possibility that the tariffs could be stopped. Isn’t that right?
Somin: I think people are waking up to that possibility today, though I and others have been saying that this could happen for some time. Obviously, I’m an attorney in the case—I can’t say I’m a completely objective neutral observer—but if you look at what happened in the oral arguments in our case and in the case filed by the 12 states, the judges were very clear of their great skepticism of the administration’s claim to virtually unlimited power. I wrote about that on the day of the oral argument when that was held. And a similar thing happened in the oral argument on May 21 in the case filed by the 12 states. So if people were surprised, I think they shouldn’t have been.
Sargent: So it is possible that at the end of the day, this whole nightmare is just ended.
Somin: It certainly is very possible that these IEEPA tariffs will ultimately be struck down by the courts and blocked. Obviously, Trump might then engage in other abuses of power, even other abuses of tariff power, but it will be hard for him to do something on this massive scale.
Sargent: Right. I think one thing that people haven’t really looked at, and I find very interesting, is that this is a thing that would be particularly hard for him to defy the court on.
Somin: I think that seems likely for a couple reasons. One is these tariffs are very unpopular; if you were going to force a confrontation with the courts, you might want to choose any issue that is less unpopular. And obviously, all the court orders here would really require is just that the various government agencies that collect tariffs should stop collecting these tariffs. It’s a relatively easy thing to oversee as opposed to some things where you can make excuses like returning Abrego Garcia from El Salvador, which was egregious. We’ve talked about that before, I think, but there at least they have the excuse, Well, he’s in the custody of the government of El Salvador so we can’t do anything, or so he can claim. In this instance, it would be very hard for him to claim that he can’t stop his own subordinates from collecting tariffs.
Sargent: It may emerge at the end of the day that Trump’s power is not absolute after all. Ilya Somin, thanks so much for coming on with us. Congrats on the work and keep it up, man.
Somin: Thank you so much.