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- [00:00]
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- [01:31]
Michael Popak
Him two weeks, but Donald Trump woke up from his stupor, realized he's going to probably lose at the United States Supreme Court about the thing that holds up and props up his inhumane administration tariffs. Despite what all of the people around him, all of the enablers trying to tell him that he's going to win. He now knows he he's going to lose. And he woke up at 12:37am in the morning and he posted on Truth Social his own personal truth and threw his Solicitor General John Sauer, who was his criminal defense appellate lawyer, under the bus. He says the Supreme Court was given the wrong numbers and we're going to lose apparently as a as a as a result of it. Michael Popak Nice to see Donald Trump is joining planet Earth to realize what every other legal commentator, including myself, told him two weeks ago is that the hearing went terribly with Trump appointed judges and others and justices and others all attacking the plan as a illegal, unconstitutional power grab of the power reserved to Congress to do tariffs and taxes here. Let me read to you from the 12:37am rant and I'll try to unpack it for you. The U.S. supreme Court was given the wrong numbers. By who? By his own Department of Justice Solicitor General John Sauer, apparently in his briefs. In his oral argument. The unwind in the event of a negative decision on tariffs. That goes to a question asked by Amy Coney Barrett, which spells trouble for the Trump administration and I'm going to play that. I brought the receipt on that in a minute. The negative decision on tariffs would result in an unwind of more in excess of $3 trillion. It would not be possible to ever make up for that kind of drubbing again. He admits in his social media post the thing that kills his legal argument that this is revenue generating. Was he not listening to John Roberts and Gorsuch and Amy Coney Barrett? If the use of the International Economic Emergency Powers act to set tariffs on 200 countries, which is a congressional power, is revenue generating and that's the purpose of it and he keeps bragging about the trillions of dollars that he's obtained through it for the American people for a dividend for this, for that, then it's a tax. And if it's a tax, it's only in the power of Congress can't be given to the President. That's the point. But he keeps bragging about the money thinking that's helping him. He says that would truly be insurmountable. A national security event, possibly non sustainable. You know what's non sustainable? His presidency. But here you see he's woken up and figured out he's going to likely lose. Who can I blame? Let me look around. Oh good. John Sauer. My lawyers once again throwing his lawyers on under the bus. I'm smiling because I know he's going to lose. I'm reasonably confident that they don't have the five votes to say that a president of the United states under Article 2 powers or under this delegation statute can do taxing by way of revenue, by way of tariffs for revenue. I knew that. I'm glad you're here. I might as touch on legal af. Let's unpack and dissect all of this now. During the oral argument I caught and I talked about in prior hot takes a bonehead move by the Solicitor General John Sauer. So I sort of agree with Donald Trump that they were giving them the wrong numbers. John Sauer in his briefing and in Donald Trump in public statements which are referred to in the briefing to the to the Supreme Court said the economy was dead and now it's alive. And Donald Trump raised trillions of dollars all through the tariffs. Right. But if tariffs are revenue, then revenue are taxes and you lose. That's what the Supreme Court just says. We're trying to tell sour during oral argument. And Donald Trump thinks if they had the right numbers about the unwind about the dollar amount, that would help him. It actually kills his legal position. Now, let me play you the what I think Donald Trump is referring to, which is Amy Coney Barrett saying, suppose you win to the lawyers advocating against the tariffs. How would we unwind this? Would it be a total mess? Let me play that clip. And then if you win, tell me how the reimbursement process would work. Would it be a complete mess? I mean, you're saying before the government promised reimbursement and now you're saying, well, that's rich, but how would this work? It seems to me like it could be a mess.
- [06:26]
Legal Expert / Lawyer
So the first thing I'd say is that just underscores just how major a question this is. The very fact that you were dealing with this with quotas. There's no refund process to the tunes of billions of dollars or embargoes. But there is here. But for our case, the way it would work is in this case, the government stipulated for the five plaintiffs that they would get the refunds. So for us, that's how it would work. Your question, I take it, is about everyone else. We don't have a class action or anything like that with respect to everyone else. There's a whole specialized body of trade law and 19 USC 1514 outlines all these administrative procedures. It's a very complicated thing. There's got to be an administrative protest. There was a Harbor Management case earlier that this court was involved with in United States Shoe in which the refund process took a long time. There were any number of claims and equitable relief.
- [07:18]
Michael Popak
So a message.
- [07:19]
Legal Expert / Lawyer
So it's difficult. Absolutely. We don't deny that it's difficult. But I think what this court has said in the McKesson case in 1990 is that serious economic dislocation isn't a reason to do something. Northern Pipeline, you guys stayed your decision for a while in order to let the congressional process unfold. There may be a congressional process here as well. You know, you may be able to also be that this court could limit its decision to prospective relief under the John Q. Hammonds case. There's lots of possibilities.
- [07:51]
Michael Popak
So that got Donald Trump concerned. Amy Coney Barrett's not with him, and Amy Coney Barrett is not with him. She's likely to side with the moderate and liberal Wing against tariffs. Tariffs as a power of the president, I guess is the better way to put it. But even John Roberts, the Chief justice, hammered John Sauer, the Solicitor General who's now firmly implanted under the bus by Donald Trump during an exchange about are it if it's revenue generating, isn't it a tax and how can the president impose a tax on people without going through two houses of Congress? Let's play that clip.
- [08:30]
Supreme Court Justice
But I mean and I think this is a question for the other side as well. It's too two facing yes of course, tariffs dealings with, with foreign powers. But the vehicle is imposition of taxes on Americans. And that has always been the core power of Congress. So to have the President's foreign affairs power trump that, that basic power for Congress seems to me to kind of.
- [08:56]
White House Press Secretary
At least.
- [08:58]
Supreme Court Justice
Neutralize between the two powers, the executive power and the legislative power.
- [09:05]
Tariff Policy Expert / Government Official
Let me say two things in response to that. First, the notion that these are the taxes are all borne by Americans are not borne by foreign foreign producers who are, whose goods are imported is empirically that's not, there's no basis for that in the record. It's actually a mix who pays the tariffs.
- [09:20]
Supreme Court Justice
If a tariff is imposed on automobiles, who pays them?
- [09:25]
Tariff Policy Expert / Government Official
There's a typically there'd be a regardless of who the importer of record is, there'd be a contract that would go along, along the sort of line of transfer that would allocate the the tariff and there'd be different. Sometimes the foreign, the foreign producer would pay them, sometimes the importer would bear the cost. The importer could be an American, could be a foreign company. A lot of times it's a wholly owned American subsidiary of a foreign corporation. So it gets allocated the empirical estimates range from like 30 to 80% of like how much is borne by I.
- [09:51]
Supreme Court Justice
Mean it's been suggested that the tariffs are responsible for significant reduction in our deficit. It I would say that's raising revenue domestically.
- [09:58]
Tariff Policy Expert / Government Official
There certainly is an incidental and collateral effect of the tariffs that they do raise revenue. But it's very important that they are regulatory tariffs, not revenue raising tariffs. And the way you can see this, I think if you look at this policy, this policy is by far the most effective if nobody ever pays the tariffs.
- [10:14]
Michael Popak
Now of course it is. Donald Trump has been public about raising money through tariffs as revenue. He even had a speech around his inauguration in which he said that he wanted to form an external revenue service to replace the Internal Revenue Service to tax effectively our, our foreign adversaries and allies and use that money instead of taxing Americans through income tax. But everybody recognizes that a tax on goods is a tax on a revenue. Tariff on goods is a tax on the American consumer because it gets passed through to them. Everyone but Donald Trump. Here's a speech about the External Revenue Service.
- [11:02]
Trump Administration Supporter
Instead of taxing our citizens to enrich other countries, we will tariff and tax foreign countries to enrich our citizens. For this purpose, we are establishing the External Revenue Service to collect all tariffs, duties and revenues. It will be massive amounts of money pouring into our treasury coming from foreign sources. The American dream will soon be back and thriving like never before.
- [11:41]
Michael Popak
Now Donald Trump knows he's going to lose. There's no other way to put this 12:37am rant that starts off with, I love the passive voice. The United States Supreme Court was given the wrong numbers. By who? How about John Sauer, your Solicitor General, gave the Supreme Court the wrong numbers. He really means the wrong argument. Now, I knew they were, they, they weren't telling the old man the truth around him because I saw the clips of people in his administration like the Commerce Secretary take to the airwaves and say, mark my words, that Supreme Court hearing was like the Super Bowl. He's going to win. Howard Lutnick said it. Let's play the clip.
- [12:26]
Trump Administration Supporter
Oh, this is the Super Bowl. This was the super bowl of trade.
- [12:30]
Legal Expert / Lawyer
Right?
- [12:30]
Trump Administration Supporter
Trade. And this was it. The only thing missing was walk on and walk off music and a halftime show. I mean, this was it. And there were fireworks all the time. But think of some of these questions, like Justice Kavanaugh says, imagine a meeting in the Oval Office with the president where. And this was his cross examination of their lawyer. And he says, you've said he could embargo, he could cut off trade with any country. And their lawyer said, I agree. He goes, imagine telling the president in the Oval Office, sir, you can blow up trade with this country. And he goes, that seems too much. Can I put a tariff on him and do a little less? And they say, no, sir, you can. And Justice Kavanaugh says, that seems like a very odd doughnut to me. I mean, how could you let that happen? It just didn't make sense. The justices were on the president's side. You're hearing it here from me. President Trump is going to win this case.
- [13:27]
Michael Popak
But of course, he wasn't the only one. You got Carolyn, who the press secretary, said the same thing. Here's her clip.
- [13:35]
White House Press Secretary
I'll tell you, the White House is always preparing for plan B. It would be imprudent of the president's advisers not to prepare for such a situation. With that said, we are 100% confident in the president and his team's legal argument in the merits of the law in this case. And we remain optimistic that the Supreme Court is going to do the right thing. The importance of this case cannot be overstated. The president must have the emergency authority to utilize tariffs. Look at what President Trump has been able to do with the leverage and the power of tariffs. He's been able to sign peace deals all over the world and end global conflicts and literally save lives. He's been able to bring in trillions of dollars of investments into our country. In fact, this year alone, we are going to cut the deficit by $600 billion, namely because of. Of the President's effective use of tariffs. And the president strongly believes that economic security is a matter of national security, and tariffs have a lot to do with that. And this, this case is not just about President Trump. It's about the, the use of this emergency authorization for tariffs for future presidents and administrations to come. And we're confident and hopeful that the Supreme Court will do the right thing.
- [14:49]
Michael Popak
But the Treasury Secretary, Scott Bessant, put the final nail in the coffin on Sunday, which I think led to Donald Trump now waking up on Tuesday morning and posting, all the people around me are incompetent. Here's Scott Best at the Treasury Secretary getting played by George Stephanopoulos about walking into the trap, painting himself into the corner. Once he says that tariffs are revenue, he's dead legally, from a legal argument standpoint. Watch the exchange.
- [15:17]
T-Mobile Advertiser
President is also posting about tariffs this morning. He's saying people that are against tariffs are fools. We're taking in trillions of dollars. And is that true?
- [15:26]
Michael Popak
We have take over the course of the next few years. We could take in trillions of dollars, George. But the real goal of the tariffs is to rebalance trade and make it more fair. So is anybody shocked that Donald Trump is now blaming his Department of Justice whenever he's caught in a trap of his own making? Right. Whenever he, you know, doesn't shoot himself in the foot, he shoots himself in the head. No pun intended. He blames the lawyers around him. It's Pam Bondi did it. It's Todd Blanche screwed it up. And now it's John Sauer, his Solicitor general. May I remind you that John Sauer, for all of his faults, and there are a number of them, and to all the my inability to listen to him argue because of his the rapidity and velocity at which he packs in words and his gravelly voice, it sounds like a combination of broken pavement and that he gargled with bourbon. Putting all that aside for a minute, he was Donald Trump's criminal appellate lawyer that won the immunity decision. He was his criminal defense lawyer appellate lawyer that won the Colorado insurrectionist decision that kept Donald Trump on the ballot.
- [16:43]
Legal Expert / Lawyer
So.
- [16:43]
Michael Popak
But Donald Trump flailing around looking for somebody to blame. Who John Sauer. For me, the takeaway is he knows he's going to lose. And if he loses, here's what's going to happen. The Supreme Court's going to say, I believe under whether you call it the major powers doctrine. No, sorry, the major questions doctrine, the non delegation doctrine, strict, strict interpretation, originalism, whatever you want to call it, they're going to find that, that the water's edge, the limit of Article 2 presidential power even stretched out far under foreign affairs, doesn't reach as far into the grab bag of powers of Congress to grab their fundamental core function power under the Constitution of tariffs and taxing. And that ipa, the statute which delegated a certain level of, of economic response by policy making by the president doesn't go as far as to give him the power to set tariffs worldwide. Then through once they do that, once they throw them out, they'll leave it to the government to figure out how to pay the money back. It goes back to the importers in America who paid it, who passed it along to the consumers. It's relatively simple. You give a tax credit, you have a tax credit to everybody you know of X amount of dollars. Figure out the 200 billion or $300 billion that's come in, spread it out among the taxpayers and give everybody a tax, a tax break. Donald Trump wants to give them a tariff dividend, which we'll never see. $2,000, $3,000, a DOGE dividend check of $5,000, a health care dividend of $2,000. You've never seen these checks because they've never been spent, they've never been sent. But he can, through tax breaks and or refund checks, fix the problem. To answer Amy Coney Barrett's issue, I just love that Donald Trump has lost his mind at 12:37am and decided to go after his own Department of Justice. We'll follow it right here. While you're here on Midas Touch, help them get to 6 million subscribers. Come over to Legal AF YouTube, help us crack the 1 million subscriber base we've been around less time and then go over to Legal AF substack and help us there, pay the bills, so to speak. If you like this kind of commentary, I do 40 videos a week at the intersection of law and politics along with my other contributors. Help us there and become a paid member on Legal AF Substack. So until my next report, I'm Michael Popak. Can't get your fill of Legal af? Me neither. That's why we formed the Legal AF Substack. Every time we mention something in a hot take, whether it's a court filing or a oral argument, come over to the substack. You'll find the court filing and the oral argument there, including a daily roundup that I do called Wait for it Morning af. What else? All the other contributors from Legal AO are there as well. We got some new reporting, we got interviews, we got ad free versions of the podcast and hot takes where Legal AF on Substack. Come over now to free subscribe.
- [19:47]
Legal Expert / Lawyer
High.
- [19:47]
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