Michael Popak (4:46)

So let's do the reality of that. That means over $200 billion worth of tariffs that have been collected from American companies. That's the dirty little secret about Trump's tariffs. It wasn't paid for by Japan or Canada or Mexico or any of the other 200 countries that he tariffed. It was paid for by the American consumer and businesses. That's why he was all upset when different economic studies, including by the Federal Reserve in the last few days said that 70 to 90% of the tariffs that he imposed fell on the American consumer and business. They weren't shared burden, shared and eaten by companies, importers, importers with American jobs paid those those tariffs. Small businesses like the two that brought the case, including a company called Learning Resources, paid the tariffs and now they're entitled to get a refund. When you look at the conclusion of a considering how many parts there Were, and we'll talk about that a little bit. At the end, different parts of the agreement were joined by different parts of the majority. At the end, the core of the decision was joined by enough votes. You just need five. They were able to get to six. To strike down the peacetime use by a president of the International Emergency Economic Powers act, to try to use two words in that act, regulate and importation, regulation and importation during peacetime, to impose sweeping tariffs which are, which are taxes, which are only given by, by the Constitution to Congress on 200 countries. And they said, yeah, that's not happening. But then when you get down to the conclusion, people were worrying, are they going to make it retroactive? Are they going to be concerned about how the Trump administration is going to have to pay back $200 billion or more from the treasury back to these companies? Are they going to get into the mechanics of it and the logistics of it? The answer to that is no, just as we predicted. As Amy Coney Barrett said during an unrelated oral argument about a month ago about the Federal Reserve, she said, I'm not an economist, I'm just a judge. Right. And they don't get involved with how to pay it back. It's not retroactive. It applies now. It's not prospective. In other words, it's not going to be like, well, you can keep the $200 billion, you can keep that, but in the future you better not know, it's declared invalid, what we call invalid or void ab initio at the time it was used, which means he's got to pay it back. Now, I did some reporting about two weeks ago that the, that the Customs Department, the, the Customs and Border Patrol, you know, it's getting a lot of flak for its out of control agents killing people. One of the things they're in charge of is imports and taxes and tariffs. They've already set up a mechanism to allow for repayment because they knew this was potentially coming. Donald, they've been white knuckling this decision for quite some time. I'm talking about the Trump administration worrying about what to do. It would be a catastrophe for the economy. You can see the response. You just read. You just read. Let me get to the heart of this decision. And literally the heart of it is the one place where all six, which is the list that you read, the three moderates on the bench, Sotomayor Kagan and Katanji Brown Jackson, and joined by Chief Justice Roberts writing for the majority for all the different sections, Gorsuch and Barrett and just so you understand, sometimes you get a clean decision where there's like a majority and here's the five or six or nine that agree to it. There's some dissents, there's some concurrence differences. I may only agree to this part or that part. This one was a little bit, a little bit broken up. But the core which is that IEA does not contain the word tariffs and does not, at least in peacetime, despite how many emergencies you declare, allow a president to tariff, which is the equivalent of tax. Based on the language in aipa, that's it. They had a little bit of a debate about whether what's called you and I have talked a lot about on legal af, a concept called the major questions doctrine about whether if Congress is going to do something so momentous as to delegate from itself its constitutional power to give the presidency through delegation through well you can have it, it's ours, but we'll give it to you. Under these circumstances, it has to be expressed in a way that is clear and unambiguous. That's the major questions doctrine. But not all of the judges felt like you had to go there. Like Ketanji, Brown, Jackson, Kagan and Sotomayor said, we don't even have to do whether it's a major questions doctrine and get into all this other stuff. Just read the statute. Right? It's the statute. The statute, the statute. Read it. And if you read it, it is very clear some judges, justices wanted to go to legislative history. Where did it come from? What were the comments made by the senators and the congress people in the 70s and others were just like, just look at the plain langu of the unambiguous statute. And he does not have this power. Now is this ultimately an attempt by the Supreme Court and the MAGA six or at least five of them to roll back some of the out of control powers that a power grab that they gave to the presidency through the immunity decision. We'll do that over other hot takes. But for right now, and this is not let me just tell people this should not come as a shock that they struck this down. We, you, me, legal AF community after listening to the two hour oral argument four months ago hearing Amy Coney Barrett talk about suppose we rule in your favor, how would the refunds work? When we heard that we're like she's already going to how do the refunds work? And Gorsuch talking about the one way ratchet if we allow this now, what other power grab could a presidency give a presidency Take especially for somebody that's so in love with the presidency. We're like, wait a minute. Gorsuch, Amy Coney, Barrett Roberts obviously did not buy it. You could tell by his questioning during the oral argument where he said where this is a Tariffs are a tax. It's a tax. Oh, no, it's not a tax. At the Solicitor General Sour John Sauer oh, no, it is. And how can you say it's not? When we saw that back and forth, we were like, how many? I thought it may even be more than six to three. I thought maybe for the majority decision it may be slightly higher at the end. Kavanaugh, Alito and Thomas and we'll do separate videos about their bullshit. But here the what we should be have take away some confidence and have some confidence in the American people is that at least the Supreme Court knows how to read a statute. It isn't going to bend over backwards and twist itself into a pretzel to give the presidency a power. As John Roberts said in the majority position. That has never been attempted in the history of ipa. No president has ever tried to use it to impose 200 tariffs sweeping, you know, on unlimited goods around the country. And that is one of the reasons why they struck it down. That is the takeaway. I think it is a, a very good and bright day for justice. And now Donald Trump already threatening to do other things. Sure, he can go use other powers. There's other ways to impose tariffs the right way if you, if you want to avoid Congress again. But, but not. He's not going to be able to get 200 threatening tariffs that he's been using in an extortive way for his part of his foreign policy starting today.

Co-host (12:45)

So I want to go through some of the words and the decision right over here so people can read the statute and see everything that you just said. So here's what the opinion describes. It says, enacted in 1977, IEPA IEEE P A. It's an acronym. It gives the President economic tools to address significant foreign threats. When acting under ipa, the President must identify a, quote, unusual and extraordinary threat to the American national security, foreign policy, or the economy originating primarily outside of the United States, and he must declare a national emergency. He may then, by means of instructions, licenses or otherwise take the following actions to deal with this threat. Upon declaring an emergency, investigate, block during the pendency of an investigation, regulate, direct and compel, nullify, void, prevent or prohibit any acquisition, holding, withholding, use, transfer, withdrawal, transportation, importation or exportation of or dealing in or exercising any right, power or privilege with respect to or transactions involving any property in which any foreign country or national thereof has any interest. So you may be saying, hey, Ben and Popak, I did not hear the word tariff in there at all. And you would be right. That was a major issue. As we mentioned, Donald Trump was using the word regulate to say that he can impose tariffs on any country that he wants. The thing is, in the United states Constitution, Article 1, Section 8 says that it is Congress's exclusive jurisdiction to deal with taxes. And as we've always been saying, tariffs are a form of taxes. To which Donald Trump responded, but you gave me the executive branch, all of that taxation power, which includes tariffs, when you passed IEPA in 1977. To which the Supreme Court said, when Michael Popox says major questions doctrine or just read the words of the statute, why would Congress give up its entire constitutional rights in IEEPA without saying, we hereby give up all of our constitutional rights? Why would they be so cute and coy about it and hide a delegation of everything that Congress is supposed to do and slip it into the word regulate? Does that make any sense at all? And so the Supreme Court said, that doesn't make any sense at all. There's not an emergency that you can just declare against Canada and Mexico and the rest of the world because of trade deficits and just say, I hereby declare it. And then say, I then invoke IPA's regulatory powers to say Congress doesn't have the power over taxation or tariffs anymore. That is my power. And to your point, Popak, then Gorsuch comes in and Gorsuch is really worried about a president that is unconstrained at all by any limitations. That's a fairly extraordinary thing for Gorsuch to say. Here's what he says. And without doctrines like major questions, our system of separated powers and checks and balances threatens to give way to the continual and permanent accretion of power in the hands of one man. This is no recipe for a republic that's more than just talking about aipa, okay? That's talking about the current condition of the country and no kings. And coming from a Trump appointee in Gorsuch is quite extraordinary, as Kyle Cheney explains. Roberts, writing for the majority, says Trump's claim of an emergency to issue unbounded tariffs on whoever he feels like flies in the face of decades of law and practice. So you heard my explanation before. But just read the words of Justice Roberts. Against this backdrop of clear and limited delegations, the government reads IEPA to give the President power to unilaterally impose unbounded tariffs. On this reading, moreover, the President is unconstrained by the significant procedural limitations in other tariff statutes and free to issue a dizzying array of modifications at will. All it takes to unlock that extraordinary power is a presidential declaration of emergency which the government asserts is unreviewable by the federal court. And the only way of restraining the exercise of that power is a veto proof majority in Congress. It is also telling that AIP is half a century of existence. No other president has invoked the statute to impose any tariffs, let alone tariffs of this magnitude and scope. Presidents have, by contrast, regularly invoked IPA for other purposes as well. So that's the heart of the ruling. You still had those three individuals, the three justices in the dissent which tell you that at the end of the day, Kavanaugh, Alito and what's his name are going to do literally anything that they want here.

Michael Popak (18:03)

What I liked about your presentation was the focus on Gorsuch. We knew that if they had lost Gore, for me, Gorsuch and to a lesser extent Amy Coney Barrett was the canary in the coal mine. During the oral argument when I thought that Trump had lost them and Trump thought that he had lost them, the only question was going to be if they were going to jump off sides for Trump and write a concurrence. And, and I, I now hearing that out loud because you know, we've been rushing to get onto the air for this hearing, Gorsuch's words out loud. I do think he's trying to walk back the monster that they created with the immunity decision. Look, course Gorsuch, Kavanaugh and Roberts and are pro imperial president. They are pro unitary executive branch. They worked in the executive branch. They have always thought somehow that the presidency had lost some sort of power in the co equal branch equation. And they've worked very, very hard over the last five, eight years as when they've been together to reinvigorate the presidency. But I, I think they, I think at least for Gorsuch, they think they created Frankenstein, who's who rampaging the countryside and he's trying to find ways to walk it back. The fact that you're right, he used the R word of being about the republic, when you hear that that's often code word for holy crap, you know, our very existential existence is at risk with an out of control presidency. And it should, it should come as no surprise to anybody that kind of studied the way that we have now ipa, the statute Because Roberts was very good. And this is how he got his six votes. Right? Remember, they're in the backgrounds trying to collect votes. You got to get, you got to count to five for a majority decision. And if you have more, the better. And then you can work on the concurrences and the dissents and that type of thing. So he's working the votes. And obviously they got behind Roberts. Roberts is like, I'm going to do the entire decision. I'm going to read it, I'm going to read it, I'm going to issue it. Whoever wants to join, let's see if we got six. For the heart of the case, which they did, they can differ about this doctrine or that doctrine, but the statute, right in peacetime does not allow it. And there's a reason for that. Because AIPA was created because Congress was concerned that presidents would go out of, would get out of control and start tariffing, and they didn't want them to do that. So that's the very reason that you even have iipa. It wasn't to delegate the authority to a president. It was to avoid and limit his ability to use tariffs as part of his tool bag, period. Now, they left for another day. Whether there's an actual war, that what a president can do. They said they made it clear that this was a peacetime power. Emergencies are not enough, which I took a lot of comfort in. And then, you know, Donald Trump's going to have to figure out how to pay back the $200 billion. The last thing I know that comes up in comments is going to be, are we going to get money back for all the higher prices that we paid because of the tariffs? And the answer to that is going to be up to the individual companies. And I doubt it. I think it's going to end up in their, in their piggy banks to pay themselves back. Whether they pass it on, the car manufacturers, the furniture manufacturers, you know, the rest of the manufacturers and goods and services that we get, that's up to them and their goodwill. But, you know, at least it's going to come out of the Treasury. And then Donald Trump's going to have to figure out how to plug another hole because his economy is doing so poorly. I mean, I was before this decision even came out. I was about to do a report on Wall street about how terrible the gross domestic product is, a measure of all goods and services made in the economy, and how it missed the mark by almost 50% off of the last quarter of 2025. That's before the tariff decision came out. So everybody buckle up. The Trump economy just got a lot, a lot rougher.

Co-host (21:55)

In conclusion, the Supreme Court has ruled that Donald Trump does not have the authority under the International Emergency Economic Powers Act IPA to impose these tariffs, delivering a major blow to Trump's sweeping emergency tariff or dream, dream regime. Once again, it was a 6 to 3 decision. Chief Justice John Roberts wrote the majority, joined by Justice Sotomayor, Kagan, Gorsuch, Barrett and Jackson. Justice Kavanaugh dissented, joined by Justices Thomas and Alito. Thanks everybody so much for watching. Subscribe to our YouTube channel here. Also subscribe to Popox YouTube channel, the legal AF YouTube channel. Thanks everybody for watching. Want to stay plugged in?

Michael Popak (22:33)

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