The Federal Judiciary Is Trapped

Summary

Amicus With Dahlia Lithwick | "The Federal Judiciary Is Trapped" — November 1, 2025

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Overview

This episode of Amicus delves into the mounting constitutional and legal crises facing the United States under Donald Trump’s “second term.” Host Dahlia Lithwick interviews Judge J. Michael Ludig, retired federal appellate judge and legal commentator, about the acute threats to American democracy, the corrosive impact on the federal judiciary, and Trump’s ongoing attempts to amass unchecked executive power. The second segment features Rick Woldenberg, CEO of Learning Resources, whose company is at the center of a pivotal Supreme Court case challenging Trump’s sweeping tariffs and the administration’s assertion of near-monarchic executive authority.

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Key Discussion Points & Insights

I. Conversation with Judge J. Michael Ludig

The Rise of “Monarchic Power” and Third Term Threats (04:32–14:35)

• Ludig warns that Trump has allegedly seized “near absolute unchecked power” over the nation, evading oversight from Congress, the courts, and the media.

  • Quote:

    “The president, in the short 10 months that he's been in office, sought and has now seized near absolute unchecked power in the United States of America... unchecked by the coordinate branches of government, the Congress of the United States and the Supreme Court… unchecked by the nation's media.”
    — Judge Ludig (05:31)

• Trump's comments about running for a third term—though walk-backed—are part of a strategy to test and undermine constitutional norms.

  • Ludig emphasizes that the threat goes beyond literal third-term attempts:
    • “Subverting the election is the thing you're worried about in addition to that.” (10:27)

• On Response: Ludig insists that Trump’s pronouncements must be taken absolutely seriously, regardless of whether they are later recanted.

  • Quote:

    “When Donald Trump says he's going to do something, he will do it. That is the only way that rationally the rest of the world can regard this president. And if we don't, we dismiss him at our peril.”
    — Judge Ludig (13:04)

Federal Judiciary: Overwhelmed but Resilient (14:35–21:14)

• Lower courts are inundated by Trump’s norm violations and legal challenges—restraining orders, injunctions, appeals—at a previously unimaginable pace.

  • Judges from across the country openly accuse the Trump administration of lying, which is described as “DEFCON from a judge” (16:44).

• Integrity of the Department of Justice compromised:

  • "They are lawless, they are contemptuous of the Constitution and laws of the United States, and they are contemptuous of the courts..."
    — Judge Ludig (19:50)

• Supreme Court's silence is indicted as tacit complicity, leaving lower courts isolated.

  • Quote:

    “The Supreme Court has stood stoic and silent, giving the lower federal courts… zero support.”
    — Judge Ludig (17:24)

• Despite this, Ludig expresses deep pride in district and appellate judges for upholding their constitutional oaths.

Legitimacy, Faith in Courts, and What the Public Can Do (21:14–30:32)

• Responding to criticism that outspoken lower courts politicize the judiciary, Ludig roundsly rejects the charge:

  • Quote:

    “It is they [the lower courts], they who are protecting and safeguarding the integrity and the legitimacy, the very legitimacy of the federal courts in America.”
    — Judge Ludig (25:26)

• For skeptics and nihilists who argue nothing lower courts do matters because of likely Supreme Court reversals:

  • “You bet it matters. It matters more than what the Supreme Court will do in the end of the day.”
    — Judge Ludig (27:36)

• The plea from the judiciary to the public:

  • Americans must “please have faith in the federal courts”—the entire system hinges on this public commitment to judicial independence and the rule of law (29:30).

Erosion of Truth and Rewriting History (30:32–38:16)

• Discussion turns to the firing of DOJ attorneys for calling January 6 defendants a “mob of rioters,” and the wider purge and rewriting of history under Trump.

  • “This is a man and an attorney general who every day are trying to rewrite American history… ordering the rewriting of American history."
    — Judge Ludig (32:15)

• Lithwick reads a passage from 1984, paralleling Trump's orchestration of erasing the factual record.

  • Ludig’s answer is stark:
    • “There is a thing called truth in this world… The day that the federal courts… acquiesce in the denial and the rewriting of truth is the day that America fails. We in America will have failed to keep the republic that our founders charged us with keeping. It's that simple. Today, the last bastion of truth... is the federal courts.”
      — Judge Ludig (37:15)

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II. Interview with Rick Woldenberg, CEO of Learning Resources

Background and Direct Impact of the “Liberation Day” Tariffs (42:20–49:40)

• Woldenberg details his family’s multi-generational business, emphasizing its mission to make affordable educational materials. Most products are manufactured overseas to keep prices low and competitive.

  • “If every child has an equal right to a great education, it's important that you keep your pencil sharp so that every child can have access to your products.”
    — Rick Woldenberg (43:31)

• Trump's "Liberation Day" tariffs were shocking in scale: company costs soared from under 2% to “145%” overnight.

  • “We were at 145% [tariffs]… We paid in tariffs and duties unaffected by IPA in 2024 of $2 million, $14 million in the last eight months...”
    — Rick Woldenberg (51:04)
  • This unpredictability forced the company to halt expansion and joint-ventures and consider existential legal strategies.

• Litigation as the recourse:

  • “Because I have some background in this issue, because I'm firmly convinced that these tariffs are unlawful, that I need to seek litigation.”
    — Rick Woldenberg (46:46)

Unseen Costs and the Taxation Myth (48:44–52:40)

• Woldenberg refutes the slogan that “China pays” the tariffs, explaining that American businesses or consumers shoulder the cost.
• “If you paid zero in real estate taxes on your house last year, and they said this year, we think it'd be jolly good if you pay $14 million… You'd probably notice it's a big number.”
  — Rick Woldenberg (51:34)

Small Business Vulnerability and Community Impact (53:44–56:16)

• Lithwick highlights the essential social and local economic role of businesses like Learning Resources.
• Woldenberg emphasizes the multiplier effect on families, communities, and local economies.
  • “These local businesses are essential to the local economy… I'm not willing to allow this to be destroyed.”
    — Rick Woldenberg (55:31)

Legal Theory: Tariff Authority and Executive Power (56:16–61:16)

• Woldenberg explains the administration's theory: that the International Emergency Economic Powers Act (IEEPA, “AIPA” in the episode) gives the president broad leeway to “regulate importation,” including tariffs, as part of foreign affairs.
  • He counters:

    "An eighth grader would say, hey, isn't there a problem with that? Remember, we learned that in the American Revolution they didn't like taxation without representation... Mr. Trump doesn't have the power individually to impose a tax because he doesn't like a commercial that's running on TV."
    — Rick Woldenberg (58:34)

Why Stand Up? Courage and Contagion (62:01–64:13)

• Woldenberg reflects on why his company is at the forefront:
  • “At some point somebody needs to stand up. If everybody thinks that somebody should stand up, just not me. Nobody stands up.”
    — Rick Woldenberg (62:26)
• He hopes “making a lot of noise” will make it safer for others to show bravery.

Outlook for Supreme Court Arguments (64:13–67:08)

• Woldenberg says he expects a fair hearing but notes, ultimately, “the voters are really in charge in this country.”
• Passionately, he frames his cause as defending James Madison’s constitutional vision:
  • “The opportunity, the responsibility to defend his idea and the integrity of that idea in modern society today is one of my great honors of my life—to stand elbow to elbow with Mr. Madison is not something I ever expected to be able to do…” (66:07)

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Notable Quotes & Memorable Moments

• Judge Ludig on necessity of taking Trump seriously:
  “The only way that rationally the rest of the world can regard this president… if we don’t, we dismiss him at our peril.” (13:04)

• On judicial resistance:
  “It is they [the federal lower courts] who are protecting and safeguarding the integrity and the legitimacy, the very legitimacy of the federal courts in America.” (25:26)

• On the last bastion of truth:
  “Today, the last bastion of truth… in America, is the federal courts.” (37:15)

• Rick Woldenberg on standing up:
  "At some point somebody needs to stand up. If everybody thinks that somebody should stand up, just not me. Nobody stands up." (62:26)

• On constitutional education:
  “An eighth grader would say… Mr. Trump doesn’t have the power individually to impose a tax because he doesn’t like a commercial that’s running on TV.” (58:34)

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Timestamps for Important Segments

• Opening, State of the Judiciary: 01:14–03:49
• Judge Ludig introduces Atlantic piece and third-term danger: 04:32–11:43
• Federal judiciary under siege: 14:35–21:14
• Faith in courts and role of the public: 28:24–30:32
• Rewriting history and federal truth: 31:34–38:16
• Transition to tariff case: 40:42–42:20
• Rick Woldenberg—impact on business, tariffs explained: 42:20–49:40
• Litigation and legal theory: 56:16–61:16
• Standing up and courage: 62:01–64:13
• Hope for Supreme Court, vision of America: 64:13–67:08

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Takeaways

• Both interviewees stress the centrality of rule of law, judicial independence, and core constitutional norms.
• Judge Ludig sees the lower federal courts as America’s last line of defense, “the last bastion of truth” (37:15), in the face of executive overreach and historical revisionism.
• Rick Woldenberg embodies the civic courage of individuals and small businesses standing up against extraordinary government power, reminding us of the historical and moral imperative to act when justice and constitutional order are threatened.
• Faith in the judiciary and truth itself is presented as the ultimate democratic act—one shared by judges, lawyers, and ordinary citizens alike.

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This episode offers a sobering, clear-eyed look at the unprecedented strains placed on American democracy, the courts, and the responsibilities of both officeholders and ordinary citizens at a time of crisis.

Transcript

[A]

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[B]

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[A]

This is Amicus Slate's podcast about the courts and the law and the Supreme Court. I'm Dalia Lithwick.

[C]

The lower courts are trying mightily to honor their oath and they are holding Donald Trump accountable for every single violation of the Constitution and laws of the United States. But of course, the Supreme Court of the United States is doing anything.

[B]

But.

[A]

If Amicus were a daily podcast about the courts and the law, we would be hard pressed to clock every norms violation, every injunction, every extrajudicial murder taking place in the Caribbean or the Pacific throughout the past month and on weeks like this. It's not even clear that an hourly show could do justice to the havoc being wrought at the Justice Department, the Pentagon, to snap recipients to lawful protesters on the streets of Chicago and Portland, inside the FBI and ICE or cbp, or indeed among members of the federal judiciary. So we try as best we can to make meaning of it all, to find trend lines and themes, to find exit ramps and optimism and legal leverage and wins by increments. And this week we are talking to one of the most stalwart defenders of the law and the Constitution and the vision of the founders that I have had the honor to know, Judge J. Michael Ludig, whose piece this week in the Atlantic reminds us to take seriously, and also literally, and also very much to heart, the threats to democracy that are being posed by Donald J. Trump. Later on in the show, we're going to be hearing from Rick Waldenberg, the CEO of Learning Resources, the family owned business that sued the Trump administration for the so called Liberation Day tariffs that are right now walloping American businesses and farmers and consumers. Right in the pocketbook. Case goes before the Supreme Court this coming Wednesday. And he, very much like Judge Ludig, is very clear about the dangers of a monarchic president operating without guardrails and without an internal braking system.

[B]

At some point, somebody needs to stand up. If everybody thinks that somebody should stand up, just not me. Nobody stands up.

[A]

But first, Judge J. Michael Ludig, who really understands what it means to put the law and the Constitution above personal interests. He played a key role in short circuiting Donald Trump's efforts to overturn the 2020 election on January 6, 2021. He's a former federal judge on the US Court of Appeals for the Fourth Circuit. He served on that court for 15 years, from 1991 to 2006, before he was appointed to the federal bench By President George H.W. he served as assistant attorney general at the U.S. department of justice and Counselor to the Attorney General of the United States. Judge Ludig, it is such a treat to talk to you. Welcome back to Amicus.

[C]

Thank you, Dahlia. It's really an honor to be on your show today.

[A]

I thought we would start with your piece, President for Life that was published in the Atlantic this past week because it opens with the proposition that Donald Trump is right now amassing monarchic powers and that he has no intention of moving off stage after the 2028 election. And I think most of the legal observers that you and I know agree that nobody who believed there would be free and fair elections going forward would behave as he is behaving. But I wanted to start by asking, is it your view that he plans to openly seek a third term or do one of these constitutional tricks? I know he's walked it back a little in the last few days. Do you find the conversation about him taking a third term in office to be distracting or unhelpful or something that we should be taking very, very seriously?

[C]

Well, Dolly, as I said in the Atlantic piece, the president, in the short 10 months that he's been in office, sought and has now seized near absolute unchecked power in the United States of America. That is unchecked by the coordinate branches of government, the Congress of the United States and the Supreme Court of the United States, unchecked by the several states of the United States, unchecked by the nation's media. Never before in American history has anything like this ever occurred, and for a reason. This is not the design of the Constitution. This was not the view of the Founders. It was not the view of America by the framers of the Constitution. No president in the nearly 250 year history of this great nation has even thought, thought Dolly had to do or say one single thing that this president has said and done literally hundreds, if not thousands of times since he first took office in 2016. So the reason I wrote the piece in the Atlantic is that after Only the first 10 months in office for his second term, this is the question on the minds of many, if not most Americans. Will Donald Trump seek a third term in office? Now, Americans didn't just wake up wondering whether the president would seek a third term. It's patently unconstitutional, and the president knows that. But from essentially six weeks into this second term until literally Wednesday of this week, he was telling the American people, Dalia, that he was seriously considering running for a third term and being the next president of the United States, succeeding himself all unconstitutionally, of course. Now, nothing has ever slowed this president down, but it's worth thinking about that. The Atlantic fast ran my piece the day after Donald Trump himself said that he would love to be the next president also. And Steve Bannon, of course, a close advisor of the president, said that Donald Trump is gonna g o n n a be the next president of the United States also. So I had, of course, written this piece for the Atlantic. It was scheduled to run, I think, on November 3rd, but the Atlantic chose to run it the morning after those comments by the president. And very significantly, though not dispositively, within 18 hours of the 7:00am release date of my article, Donald Trump, speaking from Air Force One on his way to Korea, said for the first time in his life that I suppose that the 22nd Amendment prohibits me from running again now. So does that mean he will not run again? No, it doesn't at all. We've learned because Donald Trump has taught us that we can't accept anything he says about anything. In fact, the morning that my piece ran, I got a call from a national television reporter who said that she was reporting from the Hill Republicans saying that Donald Trump backed off of his plan to run for the president only because he feared that the Republicans would lose the midterms. And they said that once the midterms are passed, you know, it's entirely possible that Donald Trump will resurrect his plans to run for a third term.

[A]

So, Judge, I guess this is a game that has been played for so long that it's hard to find equilibrium here, but they'll say something outrageous. Steve Bannon will assert with confidence that there are plans afoot to get around the Constitution, then they walk it back. You're left wondering if we, as constitutional thinkers are just chasing after whatever bait they're throwing out there. I'm hearing you say, take it seriously. I'm also hearing your article say, and I think this is important. Whether or not he actually seeks a third term is half the problem. Subverting the election is the thing you're worried about in addition to that. But I guess I'm really curious how it is that as a legal thinker, one responds to something that may be real, maybe fanciful, might just be trolling, might be a distraction from actual egregious violations of the law. I mean, how do you make this the size that it is? Or am I hearing you say it is very consequential, treat it as such. Even when they walk it back, it's.

[C]

Only a third of the problem. Dalia. Actually, the most important thing that I said in the Atlantic article is that Donald Trump has seized all the power in the United States of America that would be necessary in order for him to subvert either the midterms or the 2028 election, or both, and run for the presidency and actually be seated as the next president of the United States against the will of the American people. It doesn't matter what Donald Trump says today or even what he does tomorrow. What I just said is the most significant thing that could ever be said in all of American history about a president of the United States. Now, to your question. And of course, you've been in the vanguard of this attempt to resist the efforts of the current president to undermine the Constitution and the rule of law now for a decade. So where are you and the rest of us today? Well, I've decided where I am, and that is that when Donald Trump says he's going to do something, he will do it. That is the only way that rationally the rest of the world can regard this president. And if we don't, we dismiss him at our peril. Donald Trump has intentionally overwhelmed the nation and the federal judiciary from his first day in office. He knows that the federal judiciary, up to and including the Supreme Court of the United States, cannot possibly deal with all of his unconstitutional and otherwise illegal conduct as President of the United States of America. And of course, that's what we're seeing in the courts today. The lower courts are trying mightily to honor their oath to the court and to the person, and they are holding Donald Trump accountable for every single violation of the Constitution and laws of the United States. But of course, the Supreme Court of the United States is doing anything but.

[A]

So this is actually precisely the reason I wanted to talk to you of all people this week. About six months ago, you published a piece in the Atlantic, the end of the rule of law in America, and you wrote this, quote, tying the nation's judiciary up in Gordian knots. Trump has gleefully stymied the federal courts with the sheer volume of, of his unlawful actions, end quote. In the intervening time, there's even more rope added to the Gordian knot. The sheer volume of cases. We're watching restraining orders and injunctions and then appeals courts within seconds, seemingly reversing them. And we're watching, I think, the most interesting thing I've ever seen from judges across the spectrum, Judge Immergut saying to the government, I think you're just lying. Judge Ellis demanding check ins daily with the Border Patrol. Chief Judge Susan Graber of the Ninth Circuit writing, quote, I ask those who are watching this case unfold to retain faith in our judicial system for a little longer. Our friend Ryan Goodman at NYU Law School counted several dozen judges telling the Trump administration they just don't believe the Justice Department anymore. And this is, it's hard to convey to someone who isn't a judge or doesn't hang out with judges. This is like pressing the red button over and over. This is defcon from a judge. And I would love to hear from you what it means when a judge says, I don't believe you. I don't trust the Justice Department. You have, in the words of one judge, squandered in a few months, years of capital that you had built up. Part of this is a structural question, which is should courts believe everything that the Trump administration tells them? But I want to talk to you about the ways this is existential. What happens when you cannot trust the government and you are trying to adjudicate a case and you are saying the words, I think you're lying.

[C]

You always come up with the exact word Dalia, and in this context, the word is existential. Earlier this week, Carol Linnig, multiple New York Times bestseller author, formerly of the Washington Post and now of msnbc, wrote an essay in the New York Times about her new book. And she outlined in this essay the corruption of the Department of Justice by Donald Trump and now his Attorney General, Pam Bondi. And in her book, she's going to chronicle that corruption essentially day by day, beginning with the president's first term and then continuing on to this day. But that is the word. It is corrupt. And he and the attorney general every day are corrupting the Constitution and the rule of law in America. Now to the judges. As I said before, the lower court judges have honored their oath to the letter for the past 10 months under nothing short of historic circumstances, of threat from the President of the United States and the Attorney General of the United States. All the while, the Supreme Court has stood stoic and silent, giving the lower federal courts, district courts and the United States Court of Appeals zero support. I said earlier this summer to one interviewer who asked me what I would say to the chief justice today, and I didn't hesitate. I said I would tell the chief justice that he is presiding over the end of the rule of law in America and that is what he is doing. But in any event, back to the lower federal courts. I will not be made to sound like a broken record, but never before in American history have the federal courts been tested in this way. Never, Dalia. Never. Never, never. Not in one single way in which they are being tested today. The arguments that are being made by Donald Trump's Department of Justice under Pam Bondi to the federal courts of the United States are outrageous. They're lawless, they are contemptuous of the Constitution and laws of the United States, and they are contemptuous of the courts of the United States and even the individual judges sitting on those cases. If I were a federal judge still today, the Supreme Court would get an earful first by way of Donald Trump and the Attorney general getting an earful. I would not stand for this one second. Which brings us to the federal courts. They have had it and they will not tolerate this. It doesn't matter anymore what the Supreme Court says. The lower courts are determined to support and defend the Constitution according to their oath and that's what they're going to do. And I could not be any prouder than I am today of every single judge and every single court of the United States of America below the Supreme Court. And I speak to a good number of those judges all the time.

[A]

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[C]

You better believe I am. And they are not true. Donald Trump, from the first day in office in 2016, and with a ferociousness never before seen in American history, beginning on January 20, 2025, has attacked the federal courts with a vengeance in an effort to delegitimize the federal judiciary in America in the eyes of the American public. We all read about it and every one of those so called critics that you reference, they see that and they see that first. And for any of those people to even suggest that the federal courts, speaking through their opinions, Dalia, their opinions not in sidebars, not in, you know, chatter, not in gossip, through the opinions of the federal courts, they are pushing back against Donald Trump. It is they, they who are protecting and safeguarding the integrity and the legitimacy, the very legitimacy of the federal courts in America.

[A]

And what's your answer to the nihilists who say, oh, it doesn't matter what a district court does in Portland, it doesn't matter what a district court judge does in Chicago or Florida or wherever else, because at the end of the day, this will be decided, as you said in your opening, by a Roberts court that has been pretty complacent, if not all in for Donald Trump. With a few exceptions. What's the answer to what they're doing is ultimately fruitless and pointless because they're going to lose in the long run.

[C]

Well, first off, those are nihilists of the Constitution and of America itself. Those are people who, many of whom would tell you today that they need to lead a revolution against America and the United States government. Some of them literally a revolution, but many of the others a figurative revolution. We've only had one revolution in America and that was almost 250 years ago. It is not an option under the Constitution of the United States today to lead a revolt against the Constitution and the United States of America. That is the definition of lawlessness in America. So then to the embedded question there at the end, if you will, does it matter given the suggestion that the Supreme Court will reverse the lower courts? You bet it matters. It matters more than what the Supreme Court will do in the end of the day.

[A]

I take very seriously, I gather you take very seriously Judge Susan graber at the 9th Circuit saying don't give up on the courts. Do not give up on the judicial system. Keep watching. We're going to come through. But I wonder, how does the public do that? It seems like the catch here is simply asking people to have faith in an abstract idea doesn't feel like a meaningful call to action. Right. Don't give up. Okay. How do we as people who don't want to give up, don't think that justice is an abstraction. How do we get straight with the judges who are saying, look, we are calling out to you to help us and to bolster us? What does that look like for a listener who, again, might be trapped under the idea that John Roberts, at the end of the day, makes the call? What does supporting and believing in an independent judiciary look like for somebody who's just a civilian watching with hope and horror commingled?

[C]

Well, everything in this constitutional republic is in the plea itself from the courts of the United States for Americans to please have faith in the federal courts. That's the whole story. The courts themselves can do no more than that until or unless the Supreme Court acts. But your listeners need to focus and think seriously about the plea that is being made by the federal judges of the United States of America to the American people. Please do not lose faith in the judiciary. That's the whole story of America Today. Right there, Dahlia.

[A]

On Wednesday, we learned from reporting from ABC and NBC News that two federal prosecutors had been put on leave at the behest of the White House because they had the temerity to describe the January 6th defendants who were pardoned by President Trump as, quote, a mob of rioters in a sentencing memo. When you stepped out of a mostly private life to counsel Vice President Pence and then again to testify before the January 6th committee on what the Constitution does and did not require, did you imagine that we would be sitting here in November of 2025, not just pardoning, but rewriting history and dismissing attorneys of the Justice Department who use precise language to describe precise facts in an effort to reverse every single thing that happened that day?

[C]

No, of course not. And I rack my brain every day. I happen to be in New York when the New York Times article that you referenced by Alan Furrer came out. And I was reading it before breakfast and I get up early, and among others, I sent the article to my wife and I said, this is criminal. And that's what it is. This is a man and an attorney general who every day are trying to rewrite American history. And Donald Trump, of course, as president, United States, you know, has directed the federal government to purge facts from the files, if you will, of the United States government that he believes are in any way at all inconsistent with. With his view of his presidency one or inconsistent with his view of American history. It could be considered the least of significance that he directed the Smithsonian to alter its exhibits. But that's symbolic, profoundly symbolic of the fact, indisputable, that the President of the United States is ordering the rewriting of American history. Just like his demolition of the east wing of the White House in order to build a gold gilded ballroom that will dwarf the remainder of the White House. I'm at a loss for words anymore, Dalia. I mean, this is happening in real time every single day that Americans wake up and look at the news.

[A]

So maybe before we say goodbye, we could talk for a moment about truth. I think one of the reasons that your work has meant so much to me is it has been so fiercely bolted to truth and to truth telling. And you've talked a lot in this interview about the things Americans should be able to agree on. But of course, there's a lot of truth that we don't agree on. And it's one thing, I think, to exculpate January 6th insurrectionists, to pardon them, to say that they're patriots. It does feel. You just said this like an entirely different proposition to punish prosecutors for saying that they are what they are. Again, as you just said, this isn't ignoring history. This is erasing history. And I just want to read you this quote from 1984. I'm not a big fan of reading Orwell. It always feels too bang on the nose. But here's the line from 1984, quote. Day by day and almost minute by minute, the past was brought up to date. In this way, every prediction made by the party could be shown by documentary evidence to have been correct. Nor was any item of news or any expression of opinion which conflicted with the needs of the moment ever allowed to remain on record. And I think what you're describing, it feels very, very elemental to me. What it is to erase the record. This is the thing that judges produce, this is the work product, is the truthful record. I think it's a move that you're describing that we're not all catching yet. So I just wonder by way of signing off today if you can talk for a moment about the truths that you are holding fast to despite the shifting ground underneath us, what is true for you right now and what do you want our listeners to hold onto as truth in the really, really challenging months ahead?

[C]

It's been the greatest honor of my life. Dalia to support and defend the Constitution of the United States, the rule of law, and the federal judiciary. In that effort, which is now almost five years and running, every single day it has been about and only about truth. I, I have been threatened with my life beginning the day I testified before the Congress of the United States and simply told the truth. And of course, today, many others can say the same thing about their telling of the truth in the United States of America today. So what is truth? There is a truth. There are facts. And it doesn't matter what anyone else says from MAGA or frankly, what the President of the United States says. There is a thing called truth in this world. There has always been and there always will be. The day that the federal courts of the United States of America attempt or acquiesce in the denial and the rewriting of truth is the day that America fails. We in America will have failed to keep the republic that our founders charged us with keeping. It's that simple. Today, the last bastion of truth, truth, Dalia, in America, is the federal courts.

[A]

I love what you're saying because it's such a perfect through line for how we stand up for federal judges who are telling the truth and how we ourselves have an obligation to stand up for truth, and that, that in and of itself is a powerful act of resistance. J. Michael Ludig is a former federal judge on the U.S. court of Appeals for the 4th Circuit. His superb piece in the Atlantic this week is called President for Life. Judge, I thank you more than I can say, both for spending time with us this week, but also for your courage and your confidence. It is always, always a treat to talk to you. Thank you.

[C]

Thank you, Dolly. It's always a treat for me to talk to you.

[A]

We're going to take a short break.

[C]

This episode is brought to you by Planned Parenthood Federation of America. The courts matter. The law matters. And so do the people behind the cases, the patients, families and communities Planned Parenthood serves every day. This year, attacks on reproductive freedom have been relentless. The Trump administration and Congress passed a law to defund Planned Parenthood, a move that puts the health of 1.1 million patients across the country at risk. Planned Parenthood is in court to keep this law from taking away care from millions of people, but they urgently need your help. You can rush your gift by visiting plannedparenthood.org defender no matter the size, your donation makes a real difference. Helping Planned Parenthood protect access to care when it matters most. Don't wait. Donate [e-mail] defend.

[B]

This podcast is brought to you by Progressive Insurance. Do you ever find yourself playing the budgeting game? Shifting a little money here, a little there, just hoping it all works out out well, with the name your price tool from Progressive, you can be a better budgeter and potentially lower your insurance bill too. You tell Progressive what you want to pay for car insurance and they'll help you find options within your budget. Try it [e-mail] Progressive Casualty Insurance Company and affiliates Price and coverage match limited by state law, not available in all states.

[A]

And so from President for Life to the King's taxation by fiat the Supreme Court will hear arguments in the tariffs cases on Wednesday. These cases represent not just a huge national issue that is right now impacting your wallet, your holiday shopping, your grocery bills, but they continue to have seismic international effects as evidenced by this past week's extra tariffs for you Canada. Fallout from an ad that accurately quoted Ronald Reagan. The pair of cases consolidated for arguments Learning Resources v. Trump and Trump v. Vos Selections concern sweeping tariffs the president imposed on April 2, or Liberation Day as he proclaimed it. Well, just how liberated are the companies at the heart of this case feeling? Learning Resources filed suit in federal court last April. The court below ruled against Trump, as have various subsequent courts, and in September, SCOTUS agreed to hear the toy making company suit. The administration has taken the position that while Congress usually has exclusive jurisdiction over tariffs, a 1977 federal statute, the International Emergency Economic Powers act, or IIPA, allows the president to take action directly to regulate imports and exports to quote, deal with any unusual and extraordinary threat, end quote, that originates abroad. Rick Woldenberg is the CEO of Learning Resources, the Illinois based maker of educational toys and the plaintiff in this case. Rick also holds a JD from the University of Chicago Law School. Rick Waldenberg, welcome to Amicus.

[B]

Thank you for having me.

[A]

So I wonder if you would just start us off by telling a little bit about your company, your multigenerational company. You have two hand to mind and Learning Resources. What is it that they produce and why? Just sort of as a coda to that, does so much of it get produced abroad?

[B]

Well, our companies date back to a laboratory supply company that my grandfather bought in 1916. So I'm actually third generation. I have three kids who work at the business so they're fourth generation and we have over 500 employees. So we have an office in the UK with 50 people and a lot of people here in Chicago we have an office in LA and folks elsewhere elsewhere as well. We make hands on Learning materials which are sold into schools and also are sold into the home as toys. And we make curricular materials as well, so focusing on the Pre K through 8th grade market and basic subjects, math, reading, STEM coding, social emotional learning, and so on. Most of the products that we sell today were never made in this country. Many companies make their products overseas because that allows us to sell them at a lower price. Not only are we a multi generational family business, but we're a mission driven business. And so we're committed to the mission of helping kids get a great start in life, develop a love of learning. And so we're not indifferent to what our products sell for. If every child has an equal right to a great education, it's important that you keep your pencil sharp so that every child can have access to your products. So we've been making a lot of products overseas in order to keep our prices low. And the market action sort of forces that because if all of your competitors are making products in a low cost manufacturing base, you kind of have to as well.

[A]

President Trump had been talking about tariffs for a long time and certainly talked about it during the campaign. You knew probably that something was coming, something dramatic, and I guess the question was, what was gonna happen? Were you watching on the day that President Trump announced his Liberation Day tariffs?

[B]

I was in a meeting and when I got out of the meeting, like the world had changed. It was not a happy moment. We were in the process of trying to develop a new building for our business and I killed that deal that day dead. Also terminated discussions on a joint venture we were going to form to enter another export market. We're in 100 countries, there are countries we're not in. And I put that on indefinite hold as a result. But no, we were not surprised. He had put tariffs in place for fentanyl, fentanyl trafficking prior to that. And we knew from what he said on the stump that this was coming. And in fact, in Trump 1.0, he imposed tariffs. And so we'd been actively working on shifting supply base out of China. By the time Trump came in in January, we had succeeded in moving about 16% of our items out of China. But it turned out not to be enough. What happened in the week of Liberation Day is the numbers just went stratospheric. He had promised a maximum of 60% tariffs on the stump, which at the time seemed unthinkable. The amount we were spending was under 2%. So to go to 60 like that seemed crazy. And by the end of the week following Liberation Day, so to speak. We were at 145%.

[A]

And I guess I'm curious, Rick, what's going through your mind as this is being announced? Are you thinking, it's all over? Are you thinking, how do I pivot? Are you thinking as you just suggested, this can't possibly be happening and something is gonna correct for it? I mean, what was, as you said you were in a new world?

[B]

Well, first of all, I'm paid to never think, this is it, it's over. Likewise, I can't allow myself to adopt the attitude of a victim. I am responsible for a multi generational hundred year plus old enterprise that's provided jobs for thousands of people over the years in Chicago. I am not lightly going to allow a politician to end that. In addition, when you run a mission driven business, you tend to believe that you're not easily replaced and that the fabric of the universe will be slightly torn if you aren't there. And so I'm just not going to let a politician ruin this. It was clearly a major existential threat. And so I decided, because I have some background in this issue, because I'm firmly convinced that these tariffs are unlawful, that I need to seek litigation. And so in the middle of that week, I started contacting law firms and people in the industry to see if there was litigation that was being formed or planned that I could participate in or help with. And that was how it got started.

[A]

Did you have a sense that there was some other avenue available to you or was it fairly clear almost from the jump that if this was going to get resolved, it was going to get resolved through litigation?

[B]

I don't even know if it will get resolved through litigation. I think from the beginning I felt that politics created this problem and politics will resolve it. And so I wanted to have a communication strategy so that people could understand the devastating impact of this tax increase. That was unlawful. And one way to enhance the communication strategy was to also litigate. So I would say that, but the intent was to alert the voters as to what's going on about an economic threat that comes with this administration, this law, and at the same time challenge its legality and use all of that to shift political winds to make it more difficult for them to pursue this hidden tax increase. They want to increase our taxes. There's a way to do that, pass a law.

[A]

So I want to be clear, because I think this is always a hitch in the messaging around this. Tariffs do not get paid by China. They get paid either by your company. You absorb the cost or they get passed along to your consumers. And I think it's worth stopping for a moment to note that despite the fact that you won very decisively in the court below, the tariffs remained in effect. And I would love to hear from you how that has played out in terms of your production, your bottom line. Here you are almost eight months post Liberation Day. And I guess related to that, a lot of big, big, big companies absorb it more readily than small businesses. So I would love to hear you just sort of map out for me how this has played out in your company in ways that might be invisible to listeners.

[B]

First thing I'd say is that you need to understand some basic accounting. So some of the tariffs have sort of passed through the python and hit our profit and loss statements. Some of the tariffs are still on our balance sheet showing as inventory because they're an inventory cost until we sell them. I know in the last week I was given updated numbers on what we project to have spent in cash on tariffs this year, which would be both what's on the balance sheet and what's on the P and L. And we are expecting to come in around $14 million. Last year, the expense for IPA tariffs was zero. I estimated, based on the run rate of our 2025 budget, at 145% when we were more dependent on China and no one knew what else was coming, that it could be $100 million on an apples apples basis. We paid in tariffs and duties unaffected by IPA in 2024 of $2 million, $14 million in the last eight months, with all the monkeying around that we've done, suggests that next year it could be $40,000. And who knows if that number is high, low or indifferent because they change the tariff rates every single day. But, you know, if you paid zero in real estate taxes on your house last year, and they said this year, we think it'd be jolly good if you pay $14 million and next year $40,000. You'd probably notice it's a big number. It's massive in what we try to produce as a profit, and it's very disruptive. I don't think anybody big, small or indifferent can carry these tariffs indefinitely. The reason that they've not been passed on fully by people is basically dependent on how much inventory you had and how intelligently you bought your inventory. To some degree, it's a question of when the piper will be paid, not if the piper will be paid. We've had a small price increase this year, which we are trying to extend so that we don't have to hurt consumers next year. So we're hoping to minimize the impact of all this monkeying around with tariff rates. But we've had to maintain our health with a small price increase. So some has been passed on. We don't think we do anyone any good if we get sick, so we can't allow ourselves to get sick. So eventually all the inventory is burned off and every manufacturer's gonna have to pass it on.

[A]

Some big businesses have managed to get carve outs. What's that about?

[B]

There are some carve outs that are being handed out. It's my understanding none apply to me. So we get to pay the full boat. But some pressure has been removed from some industries, some activities, and that may continue. The Wall Street Journal reported that the Trump administration is backing away from some of the harshest implementations. But again, no, good luck for me on that.

[A]

We are going to take a short break.

[B]

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[A]

And we're back with Rick Waldenberg, whose case against Trump's tariffs will be heard at the Supreme Court next week. You know, I've been covering the Supreme Court for a long time and often there would be cases that would involve some leviathan, you know, multinational corporation. And yet it was always sort of described as a mom and pop company, right. And that this was a sort of intimate family business. And I think one of the things I've heard you say in interviews is that the thing about small companies, particularly multi generational businesses, is that they do become the local engine of jobs and just the community itself is a kind of braided into the health of that company. And I guess I'd love to hear you just amplify that for a moment because it is, I think, one of the reasons that you feel as strongly as you do about this. This isn't just your business. This is a kind of local enterprise where lots and lots and lots of folks are in the slipstream.

[B]

Absolutely. It's the perspective of someone that runs a long standing family business. You recognize that literally over the years, thousands of people have worked for your company. And so that's thousands of people whose families depended on that livelihood, who bought homes based on the promise that they would continue to get paid. They paid college tuitions, they paid for vacations, they funded their retirement. Sometimes they bought a bigger house, a nicer car. All of that is dependent on their earnings from your company. And that's something that we do as a family because we're committed to this business long term. We also pay taxes. So like on the buildings that house our businesses, we pay taxes which funds the local schools and the local fire department and we do business with local businesses. This is what makes local communities healthy. And there are zillions of these small businesses that prop up the local community. That's why you enjoy the life that you do in your local community. These local businesses are essential to the local economy. So again, we're closely associated with that. Our business has always been headquartered in Chicago. That's where I live. And I'm not willing to allow this to be destroyed. It's too important to me. I see the relationship and I'm going to defend it the end. I'm not going to let them in Washington ruin this.

[A]

So, Rick, I mentioned when I introduced you that you are a graduate of law school. I think you didn't litigate and we're not going to ask you to litigate this, but you did practice some law before joining the family business. Your best effort to explain to a lay listener what it is that the Trump administration says is their theory of this case. What is it that allows them to sort of, as you say, willy nilly, constantly changing, open negotiation. But like some spoils for some cooperating parties, what is their theory of why they get to do this when AIPA hasn't been deployed in this fashion?

[B]

Their argument is that AIPA provides a power that can be exploited by the president in an economic emergency relating to international sources that allows him to, quote, regulate importation. And that quote, in and of itself somewhat misstates what the law says. But they say that it is implicit in the concept of regulation, that a president would be able to to impose a tariff, because tariffs have been used to regulate in the past. A tariff is a tax that is imposed on importers when they bring merchandise into this country. So that, I think, is their fundamental argument. If you read their briefs that are submitted to the Supreme Court, they go a little further and they say, this is not really a tax case. This is a case about the President's right to administer foreign affairs, which is Article 2 in the Constitution. And because Article 2 in the Constitution gives him the right to administer our foreign affairs, that is an independent power that he has. And so because he's exercising his independent power, if you read tariff rights into the word regulate, he has the power to do that as a part of his power to oversee foreign affairs. That's their argument. There are answers to that. I'd like to actually highlight what an eighth grader ought to say. So let's not be a lawyer, let's be an eighth grader who just finished the section of history class where they go over, how does the US Government work? An eighth grader would say, hey, isn't there a problem with that? Remember, we learned that in the American Revolution they didn't like taxation without representation. Didn't they throw tea in the pond somewhere? Yes, they did. And Mr. Madison said, no, we're not going to let the king set taxes on us when we're not present in Parliament. We're going to organize our government so that no individual can set taxes on Americans. It has to be a legislative process. That's why you should read Article 1 before you read Article 2. In Article 1, it says that Congress is responsible for. It has a vested power to impose and collect taxes, regulate commerce, and it is assigned the responsibility of drafting and passing legislation. Call that James Madison's gotcha. So an eighth grader would say, Mr. Trump doesn't have the power individually to impose a tax because he doesn't like a commercial that's running on tv. Or an eighth grader would say, sorry, I didn't see that in my textbook. The government's argument is fallacious. And aside from the mischaracterization of who pays the tariffs, the reality is, if you actually read the law, what it says is that it's regulate importation or exportation of property in which a foreign party has an interest. This law was written to facilitate seizures and embargoes. So think of like someone who is a Cuban national but has a bank account in New York, or think of Iranian gold. Being stored in the US or a Russian owning a farm in Oregon. That's what the law is for. I import things that I own. By the way, you should be aware we make some of our product at a factory located in China that is owned by someone who is an American citizen who lives in San Francisco. So arguably that product was never foreign owned. It was made by an American company in China for an American who had clean title to it when it came to the border. Yet they tariff me. So like, maybe they should go back and use some of our products to learn how to read.

[A]

Why is it that you, this family owned business with 500 employees, Vos Selection, another family owned wine business, are out on the front lines pushing back not just on the on again, off again tariffs, but against what you have just described in response to my question as just a purely monarchic theory of executive power. Where's everybody else, Rick? Like, why is it that the people who stand to lose the most are not being backed up with armies of huge corporations locking arms with you? It does feel like this is falling heaviest on small businesses.

[B]

It's difficult for me to comment on why other people do things or don't do things. I can speak more accurately as to like why I did something. I was pissed off. I'm defending an enterprise I'm very closely identified with and that means a lot to me. And it so happens I know a little bit about the law and I thought it was illegal. At some point somebody needs to stand up. If everybody thinks that somebody should stand up, just not me. Nobody stands up. You don't have to be actually one of the great historians to know from recent events that when nobody stands up, sometimes bad things happen. If you're waiting for a postcard to come in the mail that says, hey Rick, it's your turn, that's not going to happen. Someone just has to realize it's time to do something. So right, wrong or indifferent, I decided to do it and I decided to put the money down to pay the legal fees and do it. Luckily for me, I'm spending so much money on tariffs, I can afford to spend a little bit more on legal fees because like, I'm going to drown in tariffs. I might as well hire some good lawyers.

[A]

Oh, that is some very dispiriting but inspiring math. I did read an interview that you gave to the Princeton Alumni magazine in June where you said, I'm inclined to stand up when my company is in genuine peril. My hope is that by making a lot of noise, it can be safer for other people to stand up. And it's definitely been a through line on this podcast that people who evince courage keep telling us that courage is very contagious. And that's why we wanted to talk to you today. Do you have any thoughts going into arguments next week at the court? It seems to me that there is such a bipartisan sense that the tariffs were disastrous at every level, that maybe this is gonna be an easy case for the Roberts court.

[B]

I do not think of the Supreme Court as a political organization. I am expecting to get a fair hearing by nine people who've devoted their life to interpreting the law as fairly as they can. And so I don't subscribe to the theory in the newspaper that the Supreme Court can be relied on to rule one way or another. It really has to do with what does the law say. And I don't think of what we're doing as political in nature. I think the solution will be political. When it becomes too costly politically for Mr. Trump to do this, he'll relentless. So that's just kind of like a simple observation. Again, informed as an eighth grader by how the government works. The voters are really in charge in this country. Government of the people, by the people, for the people. That's also in there. So I don't actually have to take a position on whether I'm for Mr. Trump or against him, nor do I need to offer him any advice. This just isn't the correct reading of the law in terms of what's going to happen at the Supreme Court. At this level of legal conflict, you have the finest lawyers against the finest lawyers and anyone that's ever had contact with lawyers, and you certainly have. They can certainly make a simple matter confusing. And so they will work hard to tease out as many different threads as they can to make it difficult for the Supreme Court to see a path forward. But I think that the Supreme Court must be concerned with what 8th graders think. And in this particular instance, if they somehow can't find a way to say regulate does not include the power to impose a tariff, then I think they are really upending what Mr. Madison did. And I think that is unthinkable. In my opinion. James Madison's invention of the American form of government is one of the great ideas in the history of mankind. It is a genuinely special insight for me personally. The opportunity, the responsibility to defend his idea and the integrity of that idea in modern society today is one of my great honors of my life to stand elbow to elbow with Mr. Madison is not something I ever expected to be able to do. But I think the Supreme Court has to weigh what the consequences will be for American society, not just now, but after now, in the future, what people expect from their government, what they can rely on in terms of rule of law. It's a very heavy decision, regardless of how confusing the lawyers make it. I'm looking forward to having our day in court and I believe that our position is the right one on the law. I could obviously talk for an hour about that, but it'll probably be a good listen. I encourage everyone to tune in.

[A]

Rick Waldenberg is CEO of Learning Resources, an Illinois based maker of educational toys. His case will be heard at the Supreme Court this coming Wednesday. And Rick, you are reminding me that it's not a terrible rule of thumb for the Supreme Court to triangulate once in a while against what would an 8th grader think? Thank you so very, very much for joining us.

[B]

My pleasure. Thanks for having me.

[A]

That is all for this episode. Thank you so much for listening. Thank you so much for your letters and your questions. Please keep them coming. We are reachable always by [e-mail] you can find [e-mail] Amicus Podcast. You can also leave a comment if you're listening listening on Spotify or on YouTube and you can rate us and review us on Apple Podcasts. On today's Amicus plus bonus episode, Mark Joseph Stern and I are unpacking the many cases and injunctions and the DE injunctions or UN injunctions over Trump's extreme immigration enforcement operations and troop deployments to Portland and Chicago and what the Supreme Court's latest crypto intervention in the Chicago case might actually mean. You can subscribe to Slate plus directly from the Amicus show page on Apple Podcasts and Spotify, or you can visit slate.com amicusplus to get access wherever you listen. That episode is available for you to listen to right now. We'll see you there. Sara Burningham is Amicus's senior producer. Our producer is Patrick Fort. Hillary Fry is Slate's Editor in chief, Susan Matthews is executive editor, Mia Lobel is executive producer of Slate Podcasts and Ben Richmond is our senior director of operations. We'll be back with another episode of Amicus next week. Until then, take good care.