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Kibbe on Liberty
Ep 362 | Trump Should Rein In, Not Expand, Executive Power | Guest: John Vecchione
00:54:51
Matt Kibbe talks with John Vecchione, senior litigation counsel for the New Civil Liberties Alliance, about the dangers of executive power overriding the legislative branch of government.
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- [00:00]
A
Welcome to Kibbe on Liberty. I'm talking to John Vecchione, chief counsel at the New Civil Liberties Alliance. We're going to talk about the Trump tariff case and the attempt by this administration to expand tariff powers beyond anything imagined by Congress. We're going to get an update on their litigation against the censorship industrial complex and what happens after Missouri v. Biden. And we're going to talk generally about efforts to rein in the administrative state and take away their regulatory discretion. Check it out. Welcome to kibbe on liberty. John, good to see you.
- [01:08]
B
It's good to see you.
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A
We were in New York and you were speaking at a Reason dinner about your efforts to roll back Trump's newly claimed emergency powers under IEEPA when it comes to tariffs. And I want to get deep into that. But you're a first timer to the show, so why don't you just talk about who you are and who you're associated with and then we'll get into some cases.
- [01:36]
B
All right. So I'm an attorney, and I had a regular attorney's life for about 20 years. I was down on K Street here in D.C. for a long time as a defense guy and white collar criminal defense and commercial disputes and that sort of thing. And then I went off on my own to a small firm in Fairfax where I was a partner. And we went after the pharmaceutical companies for undisclosed side effects for about a decade. And then I got a call from the judge I clerked for 30 years before, back in 89, 90, and he had become the head of a nonprofit called Cause of Action. And they were suing the government over various unlawful things, including a foia, the Clinton email case, about what happened. What do you do when government records walk out the door? And so I became he left and I became the president and CEO of that company, Cause of Action. And we signed up a number of fishermen in a case called Loper Bright, which we may talk about later. But I then took some other fishermen, they hadn't signed up. And I went over to the New Civil Liberties alliance, where I am now, and we filed relentless fee of commerce, which is another, which is also going to come into the Loper Bright story. But all we do is sue the administrative state over unconstitutional and unlawful actions. And that's what I've been doing for basically almost 10 years now, if you count cause of action. And it's been fun and we've had some big wins, I think. So. So that's who I am and that's what I've been doing.
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A
I'm a big fan of new Civil Liberties alliance work. And Jeanine Yunus has been a regular over the years talking specifically about. And she's not with you guys anymore, but.
- [03:28]
B
No, she's in a new civil liberties outfit that she's running.
- [03:33]
A
Yeah, but you guys were co plaintiffs, legally involved with what became Missouri v. Biden. Give people a little bit of background and let's get an update on that.
- [03:45]
B
So I see here in the studio we have Jay Bhattacharya looking at us as we discuss this case. But Jeanine, and she was the driver of this, I fully admit, but she had on Twitter found a lot of people who were upset with the lockdowns and upset with everything that was happening with COVID And we filed a case called changizi in the 6th Circuit in Ohio. And we put out how this. That these people were being downgraded on Twitter, on Facebook. Their message was not getting out. And none of us believed it was because, you know, Mark Zuckerberg cared about what they had to say about COVID and shutdowns. Right. This was a government operation. And so we brought that case and it got dismissed because the court said, well, we don't know whether it's that or whether it's just these agencies, these social media groups doing it on their own. Now. They make money on eyeballs. They had no reason to do this, no economic reason. And I find it greatly frustrating that no court has said, hey, eyeballs are what makes them money. Why are they doing this? But. But in any event, we lost. But we got a call from a guy named John D. Sauer, current Solicitor General of the United States, then with the office of Missouri's ag, Said, look, can you bring any individual clients to this case? We have where the state of Missouri and Louisiana think that we have been throttled because of government action. Our social media isn't getting out. And all of our. All of our citizens of our states who don't have a view that is conversant with the federal government, we think they're being throttled as well. So we brought a number of individuals, including Jay, to the case and began litigating it in Louisiana. And we got very good results for a while there.
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A
Yeah. And so what is the status? Like, ultimately, the Supreme Court vacated that case. Is that correct?
- [05:55]
B
So here's what happened. So we won in the district court. He issued an opinion on the 4th of July saying this was the biggest free speech violation he'd ever seen and that the government had to stop doing this. What they were doing Was they opened up portals from like the CDC and other government agencies directly into social media and could send what messages they didn't like, and those would be downgraded. And it's pretty clear that they were yelling and intimidating these social media companies. And social media companies also want mergers and other things they need from the government. Right. It's not, it's, you know, nice social media company you have. It'd be terrible if anything happened to it. In fact, a judge on the 5th Circuit, where we appealed it, said that those very words to the government. And we won in the fifth Circuit, they knocked back one of a couple of the agencies because they said they appear to be involved. Because we'd only gotten preliminary discovery, we hadn't been able to uncover the whole thing. We'd gotten, you know, maybe eight or nine depositions maybe in this huge, sprawling government action. So I went up to the Supreme Court and the Supreme Court ruled 6, 3 that we didn't have enough standing. Even my client, Jill Hines, who was a mother down in Louisiana who wanted to talk about vaccine safety and things like that, and she was doing it on a message group that you had to be invited to. This wasn't out it out anywhere. Nobody could get into it unless you were asked. So once again, does Mark Zuckerberg have any interest at all in stopping Louisiana moms from talking to each other on what basically is, you know, a community line like they have in the old Green Acres type stuff? I mean, that's what it is, but it's on the Internet. He has no interest in that. Only the government had an interest in it. And they shut Jill down. And unfortunately, six of the justices found that we didn't have enough standing to uphold a preliminary injunction. As you've probably heard, if you look at any of this, preliminary injunctions are very controversial, supposed to be a high standard. The court found that for injunction we couldn't uphold it. And three justices said, no, this is a huge violation. Obviously it's the government doing this and we should make maintain it. But we went back down and the judge found that the standing for having a suit is different from standing for an injunction. It's a lesser bar that we had crossed. So that's where it was. And our latest filing is a stay until January 16th of anything because the judge wants to know about mootness, because there's a number of the government's basically put out executive orders and others saying we're not doing this anymore. So basically we filed before the court to say the parties are discussing settlement and how to resolve this matter without further litigation. So that's where it stands.
- [08:53]
A
So it sounds like I didn't know this, but it makes perfect sense that many of the agencies under this new administration have said, we're stopping that.
- [09:03]
B
That's correct. And they've cut down. They've. As far as I know, they've cut out all portals. There are no more portals to the social media where they can just get their preferred message over to, you know, from CDC or anyone else.
- [09:16]
A
I'm sure. I'm sure I believe them, that that is their intention and spirit at the moment. But I feel like this whole process of the government censoring our speech has been a series of whack a mole games where we discover that they're no longer doing the old thing, which is to go pay off the guy at the New York Times, and you're gonna write the narrative at the very top echelons of the old media complex to the extreme example of deplatforming Uncle Bob because he's telling Joe Biden jokes. So something else is coming.
- [09:56]
B
Yeah. And I will say this. One of the funniest things that happened during oral argument in the Supreme Court is Kavanaugh was saying, well, I worked in the White House. I called up newspapers all the time to tell them, we have this problem or that problem. And Kagan said, yeah, that's just normal, standard operating procedure. And the Chief justice said, when I worked in the White House, I didn't shut down anyone's speech. I want it to be known. Everyone kind of laughed. But I think that that line between influencing someone, saying the one that they always use is. Is let's say they're getting a spy out of a country, and the New York Times finds about it, and they say, wait three days, right? Yeah, probably the New York Times is waiting three days because they think it's prudent, not because they've been threatened. But, you know, once you go down that road, it becomes very difficult. So I think we're seeing this in other areas, you know, and it is whack a mole. And it's hugely frustrating. This standing issue where I am certain that. And now, of course, Zuckerberg and Elon and all those guys say, hey, we were doing this at the government's behest. It's not even controversial anymore. Right?
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A
Yeah.
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B
But at the time, we couldn't get any of them to say that.
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A
It's fascinating to me, and I think you're seeing incredible frustration with the freedom of influencers. And, and just random guys on the Internet to build an audience. But I don't know how they're going to shut that down. The only thing left to do is to embrace something like the European Union or the uk but we got this thing called the First Amendment that hopefully protects us from that sort of sweeping censorship industrial complex.
- [11:41]
B
I do. I do think that's true. But I will tell you this. One of the things that I sued the FTC on a number of occasions. The FTC would go around to foreign Federal Trade Commissions and say certain things were bad, that they should be shutting down in these foreign countries, that the FTC could not shut down in this country. But a multinational company gets hit hard, maybe it changes its rules, so it takes on the same rules that they have in France here. And that. That is really suspect, in my view. And that foreign policy aspect of the FTC is not widely known or discussed that I've seen.
- [12:19]
A
Yeah. So before we get to tariffs, let's touch on the Chevron deference and remind people and maybe talk about it in the context of. Let's talk about some good things that the administration is doing before we pick on them on tariffs. Because it does seem that the first Trump administration, second one, has been better on the question of regulatory abuse.
- [12:47]
B
I do think that's correct. First of all, they've put out EOs saying that. So I'll just explain briefly. Loper bright versus Biden and then versus Trump, and then relentless versus commerce. Were the two cases about fishermen? Perhaps your audience has heard about them. But in the Northeast, in the herring fishery, the NOAA and Commerce didn't like the amount of inspectors that Congress was funding to put on those boats. They've always been government employees or government contractors. And so they said, you know what we're going to do? We're going to make you pay for these guys who come on your boats and do nothing for the boat, do nothing for fishermen. They're not providing any service for the fishermen. But we're going to say that you have to pay for them and contract with them. And both the guys at cause of action, and I thought, this is completely illegal. And we. They filed in D.C. circuit, I filed up in the First Circuit, which is New England, and we just kept losing. We lost in the District Court, we lost in the appellate courts, but we went to the Supreme Court. And the Supreme Court only took one question, Chevron deference. And this was the idea that came out of the 80s, that if a law is vague, the courts will defer to the Agency on their interpretation of what that vague law meant. Well, this gave an enormous amount of power to the bureaucrats, an enormous amount. Because as long as it was reasonable, as long as you could play between the hundred yard lines, you could get away with anything. And so the written law could change 180 degrees. And I think that's why it finally fell. And it was, it shocked the judicial mind that a law passed by Congress could mean 180 degree differences depending on the administration. And we saw this again, again, we saw it with net neutrality, we saw it with a lot of things. So our case, they were argued the same day. And loper Bright, relentless. It's one opinion and it says no more. We judges are going to look at the law and we're going to say what the best interpretation of that law is. And we're not going to listen to the agency, we're not going to defer to the agency. They'll listen to them like they will anyone else. Right. Put in your brief, say what you have to say and we'll decide who had the better argument. But the Trump administration has put that in eos and say all of you agencies do this. So that has been a major advance.
- [15:21]
A
Thank you for joining me today on Kibbe on Liberty and for being part of our fiercely independent audience. Every week, my organization, Free the People, partners with BlazeTV to bring you this show. My guests bring smart perspectives on everything from current events to timeless philosophical debates. If you like what you hear, go to freethepeople.org kol and support Kibbe on Liberty so we can continue to produce these honest conversations with interesting people. Now let's get back to it. Does that mean that, you know, come. I have this radical sort of fringy idea that someday a Democrat again will sit in the White House. Some of my Republican friends don't believe that's true, but they probably should think about it. But does that mean that when it comes to regulatory reform, that's been done through the executive branch and the second Trump administration, is it going to be any harder to just roll it back the next when President AOC steps into office?
- [16:23]
B
Now, if you want to get anything done permanently, you have to pass things through Congress. Okay? All these EOs could be turned over tomorrow. Now they won't have that much effect because the agencies are bound by LOPE or bright whether they like it or not. But actually telling your guys to go through all your regulations and make them adhere to it is different than waiting to be sued, Right?
- [16:44]
A
Right.
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B
It's a Little bit better for the, for the citizen.
- [16:47]
A
Yeah.
- [16:49]
B
So all this can be overturned. One of the, I think scandals of this time, you just said, oh, you know, a Democrat will be in there. Of course it will. And I don't know why, but for the last 16 years I've been in D.C. and nobody believes that. They all think they're going to rule forever and then at least the Democrats try to pass bills. But the Republicans have had everything and they have not tried to put any, any of this in stone, which is what a law is. And I have not seen any action in Congress to get some of these things written into law.
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A
I know.
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B
I will say this. Senator Schmidt has done a loper bright examination where he said here's what we should be doing. He has. But I don't know of any bills that are moving through Congress with any chance to negotiate and get something. So I don't want to cast dispersions because also I've testified before the House. Harriet Hageman, who used to work at NCLA has been very on top of this. But these are little individual actions. They're not party wide.
- [17:54]
A
Yeah, yeah. I think there's plenty of individual legislation amongst some of my favorite people in the House and Senate trying to do this sort of thing. But there does seem to be this, and this gets directly into our conversation about tariffs. There's this naivete that if we just expand the power when the good guys are in office that somehow that won't be corrupted and abused when the next guy takes over. And I think that's. I'm trying to say something that doesn't sound insane, but I think it's wildly naive that it's fundamentally destructive to the things that we say we believe in.
- [18:35]
B
And it also has, has no bearing on how the world works in real life. Right. When have we ever seen that? When have we ever seen that the other guy doesn't do with the power? Something bad using the same principle when. I don't know. I mean, it's just, it's ridiculous idea. But you know, every now and again I will say back in the Reagan days they put in cost benefit analysis and that has never gone away. So I guess everyone thought that was a good idea. And I think that only came in through and we're trying to get it in through. It may be under arbitrary and capricious, it may have to be, but it was very controversial and it's become non controversial. But other than that, I can't think of any of these eos that then last forever. Right. And so I do think Congress should be doing it. And even on tariffs, I think there's a big appetite for tariffs on China in the Congress. Whether we like them or not. I don't think that they would be stopped. But no, we got to do things. Oh, I'll use this law that's never been used this way. So this idea that only the executive can do anything is very destructive of our republic.
- [19:42]
A
Yeah. It is frustrating because a new President has pretty much the first year to do any substantial reforms through Congress and we won't go down the budget rabbit hole. But I feel like they missed the budget boat on that as well because if you actually are defunding destructive agencies, you actually have to do it. You can't just move deck chairs around on the Titanic. Which gets to executive orders and specifically the Trump tariff play, which you explained to me after the dinner at Reason. I'm like, why would they choose a strategy for implementing tariffs that was so obviously going to get challenged and is fundamentally vulnerable to a constitutional challenge? And you explained to me why you thought that was true.
- [20:35]
B
Yeah. And so there's two reasons. The first reason is Congress has given enormous tariff power to the President, but it has put up benchmarks of when you can do things and how you can do things and how long you can do things. So the President like there's section 232. This is, this is. Every President uses this for steel and aluminum. Right. And so steel and aluminum always get protected under 232 under national security, particularly come reelection time. Come reelection time, you got it going in Ohio Valley or anywhere. Yes. So this has always been used this way. It's not good, but it appears to be lawful. There might be a non delegation problem. Problem. I leave that aside for right now. But it's always been done that way. But you then have to make it can only go on for so long after report to Congress all kinds of things you have to do. But now we have under 2:32. A furniture emergency. So apparently I don't know, maybe they couldn't found find Barca loungers for the, for the aircraft carriers. I have no idea. But there is now a furniture emergency and it's under these 232. But. But even those are more circumspect than what he's doing with the IPA tariffs. So that's one reason he's. IPA is the International Emergency Economic Act. Yes, Powers Act. Powers Act. That's where the.
- [21:54]
A
And it's like 40s legislation, maybe 70s. 70s.
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B
So what happened Was there was something called Trading with The Enemies Act TWEA and the 70s Congress thought that it had given the President too much power because the real from basically the 1920s to the 1970s was it's when the administrative state blew up and it's when they gave the President all this power. Because you had the depression, you had World War II and you had Korea. So they, I mean they were not going to take power away from fdr. They weren't. They. They were all with the Democrats and they weren't going to take it away from Eisenhower. Right. So all those guys were looked upon as people who, yeah, we'll let them do it. But in the 70s, Eisenhower, obviously, for obvious reasons, there was pullback. They then pulled back on TWIA and made IPA for it's a more. They thought they were withdrawing some power and no one's ever used it this way. TWIA was used by Nixon one time when we went off the gold standard, had all kinds of problems with our balance of payments. And for four months he used it to impose like a 15% tariff, which was within the schedules that Congress had already made. So it wasn't like this. It wasn't mad at Canada for sending us Ronald Reagan's voice 100%. You know, it wasn't that kind of thing. So that was only upheld by the Federal Circuit. It was never got to the Supreme Court. And so what the administration is saying is this is just like twea, so we can do it. And because we can change it every day and do anything we want and negotiate all these deals, we like it better because we just have more power to negotiate these great deals. Well, the thing about these deals is you can negotiate them or not negotiate them. I don't know how long they stick. You know, once IIPA goes and you do have tariff powers you could have used otherwise. And if your main problem is China, that's what you should be dealing with. The idea that Denmark and England and Canada and even Mexico are causing us these problems is frankly ridiculous. But the court won't ever look at that. The court's never going to say it's not an emergency. They're not going to be in the business of second guessing the President. But it annoys me.
- [24:07]
A
Yeah, yeah. So the. What is the. We just had Phil Magnus on the show.
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B
Oh, good.
- [24:13]
A
Probably a couple months ago and he's. He's somehow involved in the same litigation.
- [24:17]
B
He's putting, he's put in amicus briefs and he's also messaging this the hell out of this on Twitter and places like that. And so I am of the opinion I've written about this and the cases that got up that we filed. The first case, New Civil Liberties Alliance, Simplified versus Trump, and that was young woman Emily Lay, who makes planning calendars and sort of lifestyle stuff for young mothers. I saw her on Twitter and actually one of our young mother attorneys, Kara Rollins, saw her and she was complaining about the tariffs, that she couldn't plan anything. So she was the first to file one of these cases. And then we got more plaintiffs and kept filing, but other people did as well. Pacific Legal foundation and Liberty and justice, which is the one who now has a case before the Supreme Court and also the one, the one big firm that got involved in this. I do want to give a shout out. It was Aiken Gump for Learning Resources, which is a medium sized company, 500 employees, and they all sued. And Learning Resources and Law and Justice's clients at Voss Selections wine company got up to the Supreme Court and that's who's there now. And we put in amicus briefs and helped out. But they're the ones who are there now. I think the court's gonna strike this down. And there are people I respect who are less sure of that. Jonathan Adler, who you might, your people might read. And as some other libertarian, I think Adam White is less sure than I am over at George Mason. And so there's not. This does not come from the voice of God. But I was there and I think that I can't see the government getting to five and I can see us getting to seven. So I think they're going to be struck down. And I think it should be just on textualism. Look, you read the statute. It doesn't say tariffs. There's a whole section of the Federal Code, Title 19, you know what it's called? Customs and Duties. They're all there. But you know, it's not there. I eba yeah, it's elsewhere somewhere. So I think that should do it.
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A
So some dirty laundry in the context of corporate America's fecklessness on this question. I used to work at the U.S. chamber of Commerce when I was a young economist. And I naively when the first day I walked into the door into that grand building, I looked at the logo and it said the spirit of enterprise. And I took it literally. And within a year I realized it wasn't a spirit of enterprise at all. It was a spirit of corporate experience. Capture where the big guys are gaming the system against small businesses and you were asked at this Reason dinner why it is that your clients and the other clients that are actually taking on tariffs are just small guys. Is it because corporate America is being cowardly or is it because they can better manage tariff regimes and the little guys?
- [27:29]
B
Both. So the first one is the ability to plan. Like Emily Le simplified. She had to take years to get a producer in China that she could trust to deliver these things on time and the way she wanted them. It's not like you just. It's not like you just dial up a pizza to get these guys right. You actually have to make relationships and make sure that they know what you want and, and you know how to talk to them. So it isn't the sort of thing you can do in a day. So maybe Walmart or Amazon, maybe they have many more lines out there, but the sole proprietors, they've made their relationships. And switching relationships is very difficult for a small firm because it doesn't have tons of managers with tons of different, you know, going to this supplier and that supplier. So the ability to plan is killing these small businesses. The, the ability to know what's going to happen next because who knows, maybe they'll send Ronald Reagan's voice from some country and they wouldn't know about it, and suddenly they're tariffed even harder. So that is part of it. It is the ability to absorb the tariffs, maybe make deals so that some of it is paid by the exporter. And the other one though, is they want mergers, they want to buy things. They have a lot of regulatory transactions with the federal government. So there's that fear, too. But I will tell you this. I look at these big companies, and I think they owe their stockholders to make sure that their stocks aren't whacked. Their stocks are getting whacked if they're, if they're highly trade sensitive, they're getting whacked. And when this comes out, if I'm right, all their stock prices are going to go up. All the value, all of their capitalization is going to go up. And they did nothing, nothing to protect that. Emily Lay did stuff to protect that. Voss Selections did stuff to protect that. You know, Learning Resources did stuff to protect that. And none of these guys did. And I think that's a really failure of them, protecting their stockholders.
- [29:29]
A
Yeah, I mean, very much so. And, you know, to take it even a step further, the problem, should you fail, the problem is you've now expanded executive power and it's kind of a blank check again for the next Guy.
- [29:49]
B
It will be a disaster. It'll be a disaster. And Gorsuch said this at oral argument and I think it's going to win the day. Congress, obviously getting Congress to move, even the old days, especially now, is difficult right now. You would need super majorities to overturn ieepa. Right. So if they're not sure that IIPA gives the President this power, they should not give it to him because it's a one way ratchet. Right. If he wants it, he can go back to Congress and say I need this power. But if he doesn't get it, if he does get it through this sort of ledger domain, which I think that's what this is. I mean you have a statute that's 50 years old and suddenly it has new powers. You know, like it's ridiculous. So I do think that the major questions doctrine is going to be applied. I do think Clarence Thomas and the Chief and people like that want the Democratic appointees to buy into a major questions case. And if they can't do it on textualism, they can certainly do it at that because there's no way they contemplated this. Congress did when they, when they were cutting back the President's power.
- [30:55]
A
So is there any sort of timeline as to when we find out what happens?
- [31:00]
B
This is the great speculation, but since I'm on your show, I'll speculate. I, I think because I didn't detect that they're in agreement on why it's bad. If it is bad. I have always said it would come out in February. But a lot of practitioners from Supreme Court bar say January. A lot of them say early January. They're going to get this thing out because even Alito Elitos, he wanted, he wanted to go after some statute, Smoot Hawley, that hadn't even been briefed because he said, well then it'll be another year of this, right? What if they use this statute next and everyone, no one will know? The uncertainty will continue. So the fact that there's not one justice who doesn't understand that the uncertainty is injuring the economy and causing all these tariffs to be collected that are going to have to be refunded or that are legal, you want to keep that number to the lowest amount you can.
- [31:58]
A
If you made it this far into the show, it means I must be doing something right. Key Beyond Liberty is just one of the amazing products we create at Free the People. We tell emotionally compelling stories and produce educational videos for the Liberty Curious. Our award winning documentaries personalize all things liberty, independence, creativity, hard work and Integrity and perseverance. After the show, check out our work@freethepeople.org and if you like what you see, donate to support what we do. That's freethepeople.org now back to the show. So the president has made two arguments that I want to remind people of. One is that we're not paying the tariffs. But they are, whoever they is. And I meant to bring this up, I printed it off. My wife Terry bought a rug sample. We had just been in Morocco and we actually purchased a rug there, but she wanted another one to match it. The rug sample cost $50 and the tariff cost $23. We didn't know we were paying a tariff. DHL sent us a bill.
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B
Yes.
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A
And said, and it's funny, the actual tariff is $2, but the processing fee makes it $23.
- [33:18]
B
And that is why there used to be an exemption for everything under 800 bucks and they just got rid of that, which is insane. But go on.
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A
Yeah. And I know Phil Magnus has been collecting these receipts to show one, to make him a potential plaintiff in legal action, but two to show I'm paying this bill. And of course, Terry posted this online and people are like, you should buy a rug in America. I'm not aware of many affordable hand tied rug factories in the U.S. no. There's a reason we go to Morocco for this.
- [33:54]
B
Exactly. But not only are we, but to every one of our complaints we filed in Texas as well, we filed them. I always attach the bills, the tariffs that have been paid and who's, you know, it's not Z at the bottom of there. He doesn't sign those. It's some signed by an American in every case.
- [34:12]
A
Yeah.
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B
And so it's an absolute. You talk about the big lie, the lie that that far now there is, there is kind of a highbrow argument that some portion are paid by the exporters, but it isn't. It's less than 20%. Right. So the vast majority of this is going to be paid by Americans and only Americans. And as Emily always points out to me and many of my clients do, there's. And many economists probably do, there's the dead weight loss. Right. There's the dead weight loss of being unable to plan. So less efficiency in that. And the fact that these things aren't on shored. The whole idea of this is John Sauer argued at the argument in this case that the greatest thing would be if no tariffs were paid because everything had been onshored. And we're building everything in America Right. Now you saw just what happened with coffee and bananas. Like I think there's a mountain in Hawaii that grows coffee. But it wouldn't have the coffee needs of San Francisco for a morning. Right? So what are you going to do? There's some things can't be grown or built here. And so I. And look, Albania was well known as the most autarkic state in the world for a very long time. Now it's probably North Korea, but it was Albania. Albania has not taken over the world. They did not make Albania great again. And I don't think we should really be following their lead. So I do think it's absolutely false and I think the transactional costs that you just said for these small purchases are horrible. Horrible because they will stop people from importing and engaging in number of activities that are completely harmless to the United States just because of those transaction fees.
- [35:59]
A
Now I have drank Kona coffee and I can tell you how delicious it is. And if it was in any way close to the price of other great coffees from say Guatemala, another favorite place of mine, I would drink Kona coffee but it's at least twice as much and maybe three times as much. And if you're comparing it to a can of Folgers, it's five times as much.
- [36:23]
B
Right?
- [36:24]
A
So it's not plausible for Hawaii to supply the coffee in America. And that's where I'm drawing the line in the sand. If they come after my coffee.
- [36:35]
B
That's why there's no tariffs on those now because that was. The anger was percolating. Let's put it there.
- [36:42]
A
Nice. Nicely done. Well, the President, since we're talking about him, says that he put out a true social post maybe yesterday claiming that trillions of dollars are coming in visa tariffs, which surely he doesn't believe that because that's a made up number. Now there's billions probably coming in from tariffs. What happens should this lawsuit succeed? Should the President's IEPA powers be reigned back in? What happens to the tariff money?
- [37:20]
B
All right, so there's speculation here and I'm not a trade lawyer, but I've been looking into this and I had lunch with a trade lawyer the other day for just this reason. There's a little dispute among attorneys because some people think that you go to the court of claims because this has been a taking, right? They've taken your property and that's where court, that's where you bring takings claims. But really the Court of International Trade is set up for this. You basically they liquidate how much you owe. And then you protest and you protest in the court of International Trade and you say, I'll give you an example, nuts and bolts. Let's say there's a higher tariff on nuts than there are bolts. And whatever you have has been classified as a nut and not a bolt. And you say, no, this is totally a bolt. Look what it does, it's a bolt. So you protest and you go to get the lower tariffs and if you win, you get your money back from the government. So that this is a normal process that has been set up for all the tariff laws. So I think you could just go to cit. But it's going to be so big. I think there's probably 150 billion in tariffs. Probably. I. It's not trillions. I think over the course of 10 years it was going to be a trillion. So, you know, but not yet. And so I think there's a process. Justice Barrett was very upset that the whole thing would be a mess. I don't know how that helps the government. Oh, you took so much money, it's gonna be a mess to get it back to everyone. Well, you don't reward the guy who stole the money because it'll be a mess. So I think there are processes in place. The one thing I don't know is whether or not CIT will make a special procedure to make these move more smoothly. I mean, in federal court, when there's a lot of cases, we have multi district litigation and one judge gets it and he takes in all the claims and they process it that way. I've never heard of that in the cit. I've never even heard of a class action in the cit. I think there's going to be new brown broken and the trade lawyers are all going to have to figure it all out. But we have procedures to give wrongfully taken tariffs back to the people who paid them. And I don't think it should be, I don't think it should cause the justices one minute's a problem.
- [39:31]
A
Yeah, so I'm assuming that. So President Trump has also said that he's going to give everybody a $2,000, whatever he's calling it a rebate check.
- [39:41]
B
Paid forward tariffs, moderate income people.
- [39:45]
A
Yeah, yeah, yeah.
- [39:46]
B
And housing. It goes to the Treasury. He doesn't have control over that, that all monies have to be dispersed by Congress. So he needs Congress to help him. You can't just be handing out $2,000 without some sort of congressional action. So that also. And plus the money's been spent. All our money's been spent. We have a huge deficit. It's not like we have a bunch of money where you can. In Virginia, okay, we had a surplus, and the legislature and the governor sent it back to us. Right. We had a surplus. So we don't have that in America. All the money's been spoken for, plus for the next four generations.
- [40:25]
A
So speculate some more, because when I saw the president do that, I assumed he was trying to create a political constituency for tariffs that has not emerged otherwise. And somehow that would pressure the courts not to shoot down his tariff authorities. Do you buy that as a plausible player, or is he just pandering?
- [40:46]
B
I think he does want to make a constituency, and he does want. If people aren't getting that money, he wants them to blame the congressman and not him. I think that's true. I don't think you can threaten the court in that way, because they don't care that much. I mean, that's like a real long bank shot with a lot of balls spinning before it gets to them.
- [41:07]
A
Yeah, yeah. Well, let's revisit this question of executive authority. The entire purpose of your litigation team is to rein in the power of the administrative state. That's sort of what we were promised from this administration. We're going to gut the deep state, the administrative state. We're going to rein in the swamp and all this arbitrary power that these faceless bureaucrats have. Make the case as to why MAGA Republicans should still demand that that be done.
- [41:45]
B
So there's two different ways to rein in the administrative state. The Trump administration wants to make the entire administrative state automatically responsive to the president's whims. Okay. There's a new Netflix out, lightning strikes or something. It's about the assassination of President Arthur. So he's the guy who put in civil service reform. Right. So because the way people got jobs in Washington was so corrupt and the Republicans were the main beneficiaries, but it got so corrupt that the Republicans who controlled everything said, okay, we need civil service reform. And so they. Chester Arthur comes in, they put in all the civil service reform. That insulation from politics is now bothering the current Republicans because they believe the people who are insulated are against them. So the one aspect of the administrative state is controlling the administrative state through the executive. So that's one piece of this, and that's why you have cases like Slaughter where I can fire independent agency people, which we think that's right, but at ncla. But the other one is arbitrary and capricious activities, that they're just doing it to exercise power for something they want at the moment. The reason MAGA shouldn't be against that second one, and why, I promise you, they'll confuse, they'll be upset with the first one because when the Democrats in, he's gonna have whatever powers to fire and have the eight, all the agencies turn on a dime to whoever the Democratic nominee is to his. So you, you don't like it for that reason because it's, it's not settled. It's not. You never know what the agency is gonna do because it all matters what the big man says, not what the law says. So that is that problem. But the other problem with it is that you do not want, with your business, in your personal life, you do not want the government to be able to run in a 360 degree direction. You want it to operate within a certain parameter that's understandable to everybody. Otherwise first people will be upset and you'll have societal instability. All right? And then you also won't be able to plan your business or life. And when the other guys, the other guy's going to get in, and I can't say this enough to anyone listening, the other guy's going to get in. You know, it's, it's always the wheel comes around and the next guy gets dunked. That's just the way the world works, especially in America. So look at these powers that Trump is claiming. Would you want AOC to have those powers? And this, this was a big thing at the argument, you know, even on the IPA tariffs. Well, how about gas powered cars? Can the President just put in 50, 70% tariff because of global warming on any gas imported car? And John Sauer said, yes. Well, isn't that why we have a Congress? The Supreme Court has been saying for about a decade now, congress, do your job. Congress, do your job. That's what Loper Bright was. They said, look, Congress, do your job. I am very hopeful that they're going to say, congress, do your job. That if you want these big things, if you want, if you want $150 billion in tariffs, which are taxes, go to Congress. If you want to have China penalized for whatever China's doing, go to Congress. I mean, that's how it's supposed to work. And I don't think the court is going to want to shortcut that.
- [45:15]
A
Yeah. And the window of a new presidency is closing. And I would argue politically that when Republicans control the White House and the presidency the same way, when the Democrats control the White House and the presidency. The midterms are going to be tough. And regardless of what the President thinks, the economy's not doing better. The cost of groceries have not gone down, and they're coming up to midterms. They have an opportunity to do something to turn it around, but it requires not another executive order. It requires Congress to act. I'm fascinated. Why they didn't do the same sort of push that they did to get some of their more controversial executive branch appointees through Congress. They got the 60 votes or the 50 votes or whatever it was.
- [46:08]
B
Yeah, for appointments, you only need 50.
- [46:10]
A
Yeah, they got the 50 votes. They could have used budget reconciliation in a different way to do more expensive things, but you only got so much time. And I did this whole solo episode on executive orders, and I mostly went back to Barack Obama saying, I'm going to do this with my pen and phone. And since then, it's been an arms race. Every president since Barack Obama did that said, okay, hold my beer, I'm going to double down. And it's obvious that the next Democrat will do this unless there is legislative reforms and unless they create a popular mandate to push those through.
- [46:51]
B
And I'm very, you know, now you can go through the code with AI looking for, you know, vague grants of power. Right. The whole code can now be searched. And you used to have to actually know lawyers who had seen something like IEA or something like that and had an idea about it. But now they can search the whole code and find random assignments, assignments of power, and say, no, this gives me this huge amount of power. It's very, very dangerous, and I don't know why. And I heard today, I mean, Green just resigned. Right. How many Republicans are there? I mean, you could lose the Congress before the next election. As long as there's retirement or people die. They only need to lose three, I think three. So it is not. It is very tenuous. And I don't know why that doesn't concentrate everyone's mind that, look, you're not going to be in the majority forever. Why do you have the majority? What do you want to do? And, you know, I hope to see that again someday, but I don't see it coming anywhere right now.
- [47:58]
A
Yeah, it's wildly frustrating. But let's talk about some of the other things that the New Civil Liberties alliance is doing that you're not personally involved in, but are important to everything we're talking about here.
- [48:10]
B
Right. So one of the things is qualified immunity. We have looked at cases Whereby. And qualified immunity is that you can't sue the individuals who violate your rights if they're a member of the federal government. We have 1983 that, that strips people of immunity in the state government, but not everybody, not prosecutors and things like that. So we think that qualified immunity is made up by judges. And so we do go after that. The other thing we go after, and in fact, I'm going to fly out to Texas Sunday after Thanksgiving, is laws made by the administrative agencies that carry criminal penalties. So the agencies don't just fine you or say that you've violated some civil thing, but they, they say that you violated the criminal law. Because there are certain laws that say, oh, if the agency does this, they'll be criminal, but Congress hasn't made them criminal. And so we have BASE jumpers who are people who jump in these suits and fly, kind of fly like a flying squirrel, not like a bat. Yeah. And so they haven't been allowed. They keep asking for permits to do this in the, in the federal parks, but they haven't been allowed, even though parachutists can and hang gliders can and all of this. And we think it's arbitrary and capricious. But the real thing, the real argument is that this was just made up by the Parks Department. There's no criminal law about doing this nub. And so we attack things like that. When the court, when the agencies say that they're able to put you in jail because that's a real burden on liberty. And all congressional laws, all criminal laws are supposed to be passed by Congress. I mean, there's not really a debate about that. But getting it in practice is difficult. The other things we have is gag orders. The SEC is the, I guess the commodities trading does it, too. But they're the only agencies in the country that if you settle with them, you're required never to talk about it. You can't ever say, and they couldn't get this, they couldn't get a court to order this. But if you, if you are under SEC investigation and you agree to $1, all right, I'll pay you $1. Please go away. You also have to say, you will never say there was anything bad about the SEC's going after you. And they put that in every single settlement. You can't get a settlement with the SEC unless you put that in. And it is such a prior restraint, and it is so illegal. But there's been a lot of judicial doctrines of why you can never attack your own settlement agreement. Right. The only thing you can do is, I guess, breach the agreement, have the SEC come back after you for billions of dollars or whatever it was, and then you say, well, I don't want to be silenced anymore. Tough. That's what you agreed to. But I think that those gag orders by the agencies, I think one good thing, other agencies haven't adopted it. And that at least gives me a little bit of hope. Only the SEC and the commodities trading people have. And so I'm trying to think of some of the other cases right now. Those are top of mind right at the moment, but we're also involved in the independent agencies. The President has. There's only. The president has executive power, so he has to make sure the laws are faithfully executed. He has to be able to put his guys in. So we think that most of these termination cases, Trump's going to win, but we also think the Democrat would win them. So whoever runs the presidency gets to put the heads in there with Senate confirmation. I'll tell you one thing that I think is coming along is all these cases where the attorney, the U.S. attorneys are temporary U.S. attorneys without Senate confirmation, I think that's going to come to a head in the next couple of years because there's a lot going on there to game the system. So the Senate doesn't get a say. And whoever gets to fire someone, you only get to go in with Senate confirmation for. For top officers.
- [52:29]
A
Yeah. So where do people find you and the New Civil Liberties Alliance?
- [52:34]
B
So we are. Our offices are over at Ballston and Arlington. Now, we've moved out of the city. But if you go to new civil liberties.org you will find us. And it's a website. You can see all our cases and you can also. We get a lot of requests. Requests. Hey, are you interested in this? Are you interested in that? And we also, I will say this, we also go after state administrative agencies, not all federal. So I have a case. I don't like all this tracking that goes on. So I have often I go up what I'll call the Panopticon, where they're following you all the days of your life. So we have some cases against the state of Florida or a city in Florida because of its license plate readers. And I represent crabbers out in Washington state who have to keep a tracker on their boat as long as they have pots in the water, which could be six months, eight months. Well, they have a device that when you bring your crab pots up or down, it pings the government. That's what they need to know because I always say do you ever see Robin Hood with Olivia de Havilland and Errol Flynn? What's he get in trouble for? Taking the king's deer, right? It's the king's deer. Well it's the king's fish. So they got to know how when you're taking crabs but they know that so why do they have to follow you around? I don't know. But you know what, they always think they do. So we bring fourth Amendment cases like that as well. So go to New Civil Liberties alliance and as I said we do sue the administrative agencies and also sometimes we take on free speech cases if they're real even if it's not just the agencies.
- [54:11]
A
All right. Thank you, John. Thanks for watching. If you liked the conversation, make sure to like the video, subscribe and also ring the bell for notifications. And if you want to know more about free the people, go to freethepeople.org.