The following is a lightly edited transcript of the February 23 episode of the Daily Blast podcast. Listen to it here.
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.
Greg Sargent: This is The Daily Blast from The New Republic, produced and presented by the DSR Network. I’m your host, Greg Sargent.
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.
Matthew Seligman: Good to be back.
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?
Sargent: So as of this recording, Trump is in the process of trying to revive the tariffs using other authorities. What do we know about what he’s trying to do right now?
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.
Now, there are limits there, though. And what we’ll have to see is whether they go through the process that they have to go through, and whether they comply with the substantive limits of time and justification—it’s got to be country-specific and so on. So we’ll see whether they actually do comply with those requirements. And if they do, how many tariffs and in what magnitude they’re able to, sort of, try to recreate what they tried to do in the first place with IEEPA. And the one thing I think we can safely say, based on the president’s reaction today, is that they’re going to try.
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.
Reporter (voiceover): Why don’t you just work with Congress to come up with a plan to...
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.
Sargent: So Trump says here he doesn’t have to go to Congress. He also says here that when a handful of Republicans voted against him on this recently, that was because they were “not good Republicans”—because a “good Republican” is one who does whatever he wants at all times, apparently.
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?
Seligman: Well, I think it’s revealing in several ways. You know, the bottom line is the Constitution doesn’t care about Donald Trump’s views about who’s a “good Republican” and who’s a “bad Republican.” This is a power—just like taxation—where it’s very clearly Congress’s power. And so, Congress has to pass a statute. It’s arguable that it already did in these certain narrow, specific circumstances, but this is ultimately Congress’s power.
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.
So he doesn’t have the votes; so he has to try to rely on this “inherent authority.” And the bottom line is that he also has this attitude that we’re seeing in every aspect of his second term: that he thinks that he gets to decide everything. And he thinks that there are no limits on his power. I think that’s a big part of what was driving what was, frankly, an emotional reaction that we saw today in this press conference. He was angry because he does not believe, at the end of the day, that there are any limitations on his power at all.
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.
Sargent: Yeah, he was definitely really ticked off. The ailing despot is really, really upset about lawful checks on his authority. I think he’s also trying to say, in some sense, that Congress has given him these different authorities—these other authorities other than the IEEPA one that he tried to claim. So he’s just going to use those. Can you go into a little more detail about what other authorities he might invoke here and what that might look like?
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.
So there are a couple of other statutes that the government may be able to use to recreate at least some of the tariffs. So one is—and I think it is probably the one that actually is the best fit for what Donald Trump is saying—Section 301 of the Trade Act of 1974. This requires that the United States Trade Representative do an investigation and determines that a foreign country has violated a trade agreement (which I don’t think has happened) or has engaged in, quote, “unjustifiable, unreasonable, or discriminatory action that burdens United States commerce.”
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.
Sargent: The crux of the issue here is that these other authorities have limits built in that actually will make it a little harder for him to just exercise them in anything close to the manner that he tried to exercise. What other statutes might he invoke here?
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.
Now, if you want to go broader than that, then he’s going to have to make the argument that, again, like imposing tariffs on a small island that has only penguins is somehow responsive to a national security threat. And again and again, we’re going to see: Okay, so there may be some circumstances in which those tariffs are going to be justifiable, but there are going to be a whole bunch of circumstances where it’s just going to be laughably pretextual.
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.
Sargent: Well, just to switch a little bit here, this is an interesting turn. Trump’s suggestion that he’s going to continue acting without Congress suddenly seems to be working against him. Listen to GOP Representative Don Bacon here.
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.
Sargent: So, Matt, I’ll believe Republicans are standing up to Trump when I see it, but I got to say: It really sounds as if Republicans are looking at Trump as a weakened and diminished figure right now. What did you think of that?
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.
In the House of Representatives, the Republicans who you might argue are standing up for, sort of, traditional conservative principles about free trade are very much in the minority. The other dimension of this—so there’s obviously the political ramifications of the president’s loss, really definitive and stunning loss in the Supreme Court today—something that we also see that reflects a larger and long-standing problem is that Congress is absolutely paralyzed 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.
Sargent: Right. So Trump can probably reconstitute something, but he’s kind of going to be limping along with this agenda. It’s going to all be on very thin ice. I think he’s in a more weakened state. It just strikes me as a worse situation for him.
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.
Donald Trump (voiceover): I think it’s an embarrassment to their families, you want to know the truth—the two of them.
Sargent: And here Trump sort of threatens to investigate the Supreme Court for supposed “foreign influences.”
Reporter (voiceover): You mentioned multiple times foreign influence over the Supreme Court. Do you have evidence of that? And if not, will you investigate that?
Donald Trump (voiceover): You’ll find out.
Sargent: So, Matt, I’m curious what you think of this kind of talk. Obviously, it’s going to hurt him with the courts further. But what’s interesting to me is that he’s sort of in this weird bind because of how his political mystique really works and what MAGA expects of him.
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?
Seligman: It is. And I think it is a dynamic that we’ve seen before that raises one of the deep ironies of the political mystique around Donald Trump. He’s supposed to be a “great businessman.” And we saw this even in the first term that he served: He was profoundly incompetent at hiring people who would do the things that he thought they should do.
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?
Now we’re seeing that hit the Supreme Court. If you feel like you need to investigate Justice Gorsuch and Justice Barrett for potential foreign interference—which, I should be very clear, there’s absolutely no evidence of whatsoever—well, then the question is: Why did you nominate them to the Supreme Court in the first place?
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.
Sargent: Just to sum this up: Here we are with Donald Trump. He’s threatening to reconstitute all the tariffs, or some of them, or some form of them, with these new authorities. What do you think is going to happen? I mean, clearly he’s a weakened and diminished figure on this front—still obviously the president, he’s got a lot of power—but I do think that he’s somewhat crippled here. How do you anticipate this unfolding from here on out?
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.
Sargent: I think the phrase you were looking for is “cornered animal.” Just to clarify: I absolutely agree that he could definitely lash out, but I do think he’s trapped in this dynamic where that type of lashing out and those types of uses of power—particularly on an issue that Republicans actually care about, i.e., tariffs—does kind of work against him in some basic sense. It’s a Gordian knot of a certain type.
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.
So I think what the American business community hoped is: Okay, he’s going to lose in the courts and this whole thing will just go away quietly. But I think the president has now really put himself out there that that’s not going to happen, and that there’s no way around this other than continuing to try to fight his assertions of power in imposing tariffs. This is going to be an ongoing fight, and there’s no way that it’s just going to go away without actually confronting him with his legal limitations in the courts.
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.