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So folks, sometimes you wonder what things are actually like here on the Ben Shapiro show when the cameras are off. And the answer is, you don't know because we turn the cameras off so you can't see. But the reality is the show is way funnier. Like everything here is way funnier and way spicier. It's really crazy. So we decided to turn the camera on, but only for subscribers, only for the people who like us and want to hang out with us. And the result is Ben After Dark. It is way funnier, it is way spicier than anything that you will see outside the paywall. The paywall is protection for us. But let's be real. You want to see. I know you do. So you need to head behind the paywall. Become a subscriber today. Go check out Ben After Dark tonight, 7:30pm Eastern, exclusively for our members only at Daily Wire Plus. Go check it out right now. If you've been thinking about Daily Wire plus. Why am I doing it? Should I pay for the thing we humiliate ourselves for? Your pleasure, but only behind the paywall. Be part of the club. Join Ben After Dark. Alrighty folks. So huge breaking news. As someone had predicted that would be me. When President Trump pushed forward his so called Liberation Day tariffs, the Supreme Court struck, struck down those Liberation Day tariffs today in a 6, 3 decision. The Supreme Court basically struck down the 10% baseline tariff on all trading partners. It struck down higher reciprocal tariffs, what he called reciprocal tariffs on dozens of countries. They weren't actually reciprocal tariffs because those countries were not actually charging us those tariffs. We just were charging them higher tariffs on the basis of trade deficits, drug trafficking tariffs on Canada, Mexico, China, those are gone. And the 145% effective rate on most Chinese goods is gone as well. The Supreme Court says that the President does not have the unilateral authority or ability to actually just impose broad scale tariffs. Now the President does have some specified tariff powers. We'll get to that in a minute. But the reason that I had said originally that these tariffs were unconstitutional is because Article 1 powers of the purse belong to Congress. They do. That includes obviously the power to tariff. Article 1 of the Constitution specifically names the powers of the purse and it says that the Constitution includes the authority to tax, borrow money, regulate commerce, coin money, establish post offices, declare war and raised armed forces. Right. That is what is in the tax and spend and commerce powers of Congress. Now the question is what can be delegated, what can't be delegated, and what also has been delegated. So obviously in certain specified contexts, Congress has delegated specific tariff authority to the President. But do at any point did Congress just say to the President, you can tariff anybody for any reason, interminably, at any rate that you want. And the answer there says the Supreme Court is no. Now, it's sort of a fascinating breakdown. I agree with the decision. Legally. I think this is obviously a correct decision from the Supreme Court. We'll get to sort of the fascinating dissent in a second because the breakdown, which was six to three in my opinion, should have been nine nothing. But it was six to three for a couple of interesting reasons. Justice Roberts wrote the opinion. It was joined by Sotomayor, Kagan, Gorsuch, Barrett and Jackson. The more traditionally textualist leaning members of the Court actually voted in favor of upholding the tariffs. That would be Alito. Thomas Kavanaugh joined with them. Now, as you know, I'm a Clarence Thomas Stan, his biggest fan. So it takes a lot for me to disagree with Justice Thomas is a rare case where I disagree with Justice Thomas and also huge Alito stand a rare case where I disagree with Justice Alito. The question under consideration here was whether the President of the United States is the unilateral authority under the ieepa, which is the International Emergency Economic Powers act, which is the power cited by the President of the United States to levy tariffs on the entire world at once. That is the question at issue. The text of the IEEPA that was at issue says this quote, at the Times and to the extent specified in section 1701 of this title, the President may under such regulations as he may prescribe by means of instructions, licenses or otherwise, and here are the keywords, 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 a national thereof has any interest by any person with respect to any property such subject to the jurisdiction of the United States. So what the majority found is that that does not include broad scale, unilateral, gigantic tariff power. That that includes, for example, embargoes for national security reasons. That it includes regulations on the basis of violation of international treaty, for example, but it does not include the ability of the President to simply wake up one morning, print out a gigantic poster board and say there is now a 45% tariff on the Solomon island that was not delegated in the iepa. And I think that that is pretty obviously correct. And we'll get to the details of the opinion in just a second. First, your reminder, the only way that we can bring you live updates like this in detail is if you subscribe. We do need your help over there at Daily Wire Plus. Please head over there and subscribe right now because we are building up our investigative reporting. We are building up our live capacities in extraordinary ways. So we do need your help. Head on over to Daily Wire plus right now. Okay, so there are basically two arguments made by the majority written by Justice Robertson. And I will say this. I do find it somewhat ironic that Justice Roberts claimed that Obamacare was not a tax for purposes of finding it constitutional, but finds that tariffs are in fact a form of tax for purposes of finding them unconstitutional as as promoted by the President. So I'm not a Justice Roberts fan. I think that he is quite fungible in his language, even if the majority gets it right here. In any case, basically, there are two arguments that are made by the majority opinion. One, the IEPA does not actually authorize tariff power to the President in the way that the President has done this. Again, this doesn't mean the President doesn't have alternative tariff power. We'll get to that in a minute. There are other ways the President, if he wants to, can impose tariffs, although in much more specified and targeted ways. Second, the argument is that the way that you can tell that they never actually delegated this power is because if Congress were to delegate a major question, like a major issue set to the Executive branch under the Constitution, they would be clear in doing that. They wouldn't have. It wouldn't be a mystery. They would say all tariff power belongs to the President. Boom, there it is. They wouldn't kind of hide it in the text. That is what's called the major questions doctrine. It's part of the non delegation doctrine. The non delegation doctrine says that unless Congress has delegated a power that it holds to the Executive branch, then the Executive branch can't exercise that power. And there are certain powers that Congress cannot actually just delegate to the Executive branch because those are core powers of Congress. This is why you can't just have Congress, Congress become a vestigial organ. It was never supposed to be this way. So Justice Roberts writes, quote, based on two words separated by 16 others in section 1702 a 1b of IEPA, regulate and importation, the President asserts the independent power to impose tariffs on imports from any country of any product at any Rate for any amount of time. Those words cannot bear weight. I mean, again, I agree with this and I can read you the statute. I mean, the statute literally says that the President may regulate and then direct and compel, nullify, void, prevent or prohibit any acquisition, holding, withholding, use, transfer, withdrawal, transportation, importation or exportation of. So again, he. It's, it's a separation there. And as he points out, there are a bunch of intervening terms there. So as Justice Roberts says, Article 1, Section 8 of the Constitution sets forth the powers of the legislative branch. The first clause of that provision specifies Congress has the power to lay and collect taxes. Duties. Duties would be tariffs, imposts and excises. It is no accident, says the Court, that this power appears first. The power to impose tariffs is very clearly a branch of the taxing power. That goes back to an 1824 very critical case called Gibbons vs. Ogden. A tariff, after all, is a tax levied on imported goods and services. Indeed, the framers expected that the government would for a long time depend chiefly on tariffs for revenue. So now we think of tariffs as sort of an afterthought because we have the income tax and a wide variety of other taxes taken in by state and federal government. But originally the major source of tax revenue was taxes on imports, namely tariffs. That was literally the power, a core power of Congress. And so they can't just take that and chuck it at the President. And if they are going to do it, they better be pretty clear about it. Little wonder then, says Justice Roberts, that the first Congress's first exercise of its taxing power was a tariff law. Justice Roberts points out the government thus concedes, as it must, that the President enjoys no inherent authority to impose tariffs during peacetime. This is one of the sort of fascinating things that he points out. If the President actually had the inherent power under his foreign policy powers to just impose tariffs, he wouldn't need some sort of emergency declaration. The fact that they use the emergency declaration means this is not predominantly a foreign policy question. That'll become important when I explain Justice Kavanaugh's dissent in just a few minutes here. So Justice Roberts says the government does not defend the challenged tariffs as an exercise of the President's war making powers. The United States, after all, is not at war with every nation in the world. The government instead relies exclusively on ieepa. It reads the words regulate and importation to affect a sweeping delegation of Congress's power to set tariff policy, authorizing the President to impose tariffs of unlimited power and duration on any product from any country. And again, he's saying that's not there in the text. If you read the iepa, it doesn't say you can tax anywhere, any time, any amount for any period. It doesn't say that in the iepa. And then he cites what's called the major questions doctrine. Again, the basic idea of the major questions doctrine is that again, Congress would not delegate a central power that it held. Excuse me. The basic idea of the major questions doctrine. Congress would not delegate the central power that it held to the executive branch without some sort of clear remit of authority. It wouldn't just hide the ball. You know, that's the major questions doctrine. So Robert says we have described several cases as major questions cases. In each, the government claimed broad expansive power on an uncertain statutory basis. And in each, the statutory tax. Statutory tax might, as a matter of definitional possibilities, have been read to delegate the asserted power. But context counseled skepticism that context included not just other language within the statute, but constitutional structure and common sense. Again, that is just a longer way of saying what I'm saying right now, which is if Congress wanted to do it, it just would have done. Wouldn't have been vague about it. Finding the right mattress doesn't have to be complicated. Our sponsor Helix actually makes it incredibly straightforward with their sleep quiz, which is which matches you to the perfect mattress based on your specific preferences and sleep needs. They're not just another mattress company either. Helix is the most awarded mattress brand out there with glowing reviews from major publications like Forbes and Wired. We love Helix Sleep. 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When Congress has delegated its tariff power, it has done so in explicit terms and subject to strict limits. Congress has consistently used words like duty in statues delegating authority to impose tariffs. Against this backdrop of clear and limited delegations, the government reads IEEPA to give the President power to unilaterally impose unbounded tariffs. On this reading, moreover, the President is unconstrained by the significant procedural limitation in and other terror 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. And the only way of restraining the exercise of that power is a veto proof majority in Congress. Now again, that's right, and I urge conservatives to think about this very strongly. If the President of the United States can simply declare national emergency and then tariff the entire planet, what can't the federal government do on the basis of emergency? There are many statutes that authorize specific delegations of temporary authority under emergency circumstances. If that is broadened out to include things like tariff the whole planet, imagine Democrats saying until all countries stop producing oil powered vehicles, we are tariffing everybody at 70%. They can do that under the way that the administration is interpreting the statute. They have the power to do that. As Robert says. It is also telling that in IEEPA's half century of existence, no President has invoked the statute to impose any tariffs, let alone tariffs of this magnitude and scope. The government points to projections that the tariffs will reduce the national deficit by $4 trillion and that international agreements reached in reliance on the tariffs could be worth $15 trillion. In the president's view, whether we are a rich nation or a poor one hangs in the balance. These stakes dwarf those of other major questions cases. So actually, Roberts is now turning the government's argument on itself. So the President is saying it's an emergency, we need to bring down the deficit. We can, we can lower it by 4 trillion. Again, I think those numbers are nonsense. But that's the argument that the President and the government are making. And Roberts says, okay, well if it's that important, you should go to Congress. If you're saying it's like of existential importance, then Congress should have given you a delegation of power and you could have gotten it from them. Again, this is not even a question over whether tariffs are good policy or bad policy. Obviously I think in the main they are pretty bad policy, but this is not about that. It's over whether the President has the unilateral ability unchecked ability to simply set tariffs where he wants to set tariffs. So says Roberts, the President must point to clear congressional authorization to justify his extraordinary assertion of the power to impose tariffs. He cannot. Then the majority opinion goes through a couple of the counter arguments. So as we'll get to when we get to the dissents in a minute, Justice Kavanaugh particularly argues that tariffing power should theoretically fall under sort of foreign policy power of the President. And Roberts and the majority reject that. I think properly quote, as a general matter. The President of course enjoys some independent constitutional powers over foreign affairs even without Congressional authorization. But flipping the presumption under the major questions doctrine makes little sense when it comes to tariffs. In other words, Congress is given the power to impose duties. Saying that the President's foreign policy power eats that provision explicitly of the Constitution reverses the burden of proof. The President has to prove that duty power has moved into his domain. He can't just assert it. As the government admits, says the majority, the President and Congress do not enjoy concurrent constitutional authority to impose tariffs during peacetime. He keeps making this point that if Congress wanted to authorize the President to simply impose tariffs outside of emergency wartime situations, they could do it. And in certain circumstances they have. But they certainly did not give the President full scale authority to go to trade war with Japan, for example. Roberts goes on to say that the ieepa, again, that is the statutory authority being used by the Administration in order to press forward these global tariffs. To begin, IEEPA authorizes the President to investigate, block during the pendency of an investigation, regulate, direct and compel, nullify, void, prevent or prohibit importation or exploitation. Absent from this lengthy list of powers is any mention of tariffs or duties. That omission is notable in light of the significant but specific powers Congress did go to the trouble of naming. It stands to reason that Congress, if they wanted to intend to convey the distinct and extraordinary power to impose tariffs, could have used the word tariffs. And not only that, he points out, well, if regulating importation in this way just meant tariffs, then you don't actually need the rest of this list. If that is a broad category, that just means you can do whatever the hell you want with regard to importation or exportation, up to and including tariffs and bans and investigations and all the rest of it. You don't need the rest of the 16 word phrase. You just obliterate all the other intermediate terms. Which is? Which is correct? Robert says the power to regulate importation does not fill the void. Regulate, as that term Ordinarily is used means to fix, establish or control, to adjust by rule, method or established mode, to direct by rule or restriction to subject to governing principles or laws. This definition captures much of what a government does on a day to day basis. Indeed, if regulate is as broad as the principal dissent suggests, then the eight other verbs are simply wasted ink, Right? That's the point I'm making here. But the facial breadth of regulate places in stark relief what the term is not usually thought to include taxation. The government cannot identify any statute in which the power to regulate also includes the power to tax. So for example, if the government decides that it wants to regulate greenhouse gas emissions, it can't just levy a 50% tax on greenhouse gas emissions. You actually have to pass that through Congress. The government, the federal government. The executive branch of the federal government cannot just do that. The question is not, says the majority as the government would have it, whether tariffs can ever be a means of regulating commerce. It is instead whether Congress, when conferring the power to regulate importation, is gave the President the power to impose tariffs at his sole discretion. Correct. And then Roberts goes on to take on another argument made by the dissenters. Again, what's very odd about this case is that Alito Thomas, those are my boys, right? Those are the people I generally agree with. I think their opinions here are pretty fatally flawed. In any case, Robert says the government raises another contextual argument because regulate lies between the two polls in ieepa compel on the affirmative and prohibit on the negative. That term naturally includes the less extreme, more flexible tool of tariffs. So if the idea is that, you know, the President can compel certain things that can. He can prohibit the importation entirely. Well, tariffs are less than total prohibition, therefore you can impose tariffs. But says Roberts, tariffs are different in kind, not degree. Unlike those other authorities, tariffs operate directly on domestic importers to raise revenue for the Treasury. Even though a tariff is in some sense less extreme than an outright ban, for example, it doesn't follow that tariffs lie on the spectrum between those polls. They're a branch of the taxing power and they fall outside that spectrum entirely. In other words, for example, if I passed a law saying marijuana is banned and then the executive branch said, no, no, no, no, it's taxed at 50%, that is a different thing it is doing. Sure, a tax without a ban is less than just a ban, but those are two totally different things. And proclaiming that it's a spectrum so a ban also includes the power to tax is not right. That's the case that Roberts is making. According to the government, these precedents acknowledge an inherent presidential power to impose tariffs during armed conflict. And the argument goes, Congress in twea, which is another statute, and then in the IEEPA codified these precedents. But this argument fails at both steps insofar as the government relies on wartime cases. That doesn't apply because we're not in wartime with the countries we're tariffing. And regardless of what they mean for the President's inherent wartime authority, the President has no peacetime authority to impose the tariffs. Bottom line, says Roberts, the President asserts the extraordinary power to unilaterally impose tariffs of unlimited amount, duration and scope. In light of the breadth, history and constitutional context of that asserted authority, he must identify clear congressional authorization to exercise it. IEEPA's grants of authority to regulate importation falls short. IEPA contains no reference to tariffs or duties. The government points to no statute in which Congress used the word regulate to authorize taxation. And until now, no President has read IEEPA to confer such power. We claim no special competence in matters of economics or foreign affairs. We claim only, as we must, the limited role assigned to US by Article 3. Fulfilling that role we hold, the IEEPA does not authorize the President to impose tariffs. Okay, so it's interesting to go through the dissents to see exactly what the arguments are, are there. This opinion is, is quite varied in its level of support. So for example, I said that it was a 6:3 opinion, the majority opinion barring these sorts of tariffs. And that opinion was penned by Roberts and was supported by, on the conservative side, Gorsuch and Barrett, and then the liberals on the court, Jackson, Kagan and Sotomayor, also sided with the decision. But there's a part of the decision they did not side with. The part of the decision that the liberals did not side with is the part of the decision that that implicates the majority questions doctrine. Let's be honest. Most of us have no idea what phytonutrients actually are. That's exactly why our sponsor, Balance of Nature, makes getting them in your diet so simple. So here's the thing about phytonutrients. There are these naturally occurring plant nutrients in whole foods that actually give fruits and veggies their color, taste and smell. And honestly, if you're eating something with vibrant color and real flavor, it's pretty good sign you're getting genuine phytonutrients. Now, what Balance of Nature does is take all that produce and runs it through a specialized vacuum cold process that keeps everything stable and then powders it down without any binders, fillers, flow agents, just the real stuff. Their whole health system is essentially a value bundle that combines their fruits and veggies with their fiber and spice supplements. So you're getting 47 different ingredients, fruits, veggies, spices, fibers, along with all those naturally occurring phytonutrients every single day. Now when I'm traveling, particularly Balance of Nature is indispensable. I pop it right in the protein smoothie, I'm good to go. So whether you've been on the fence for a very long time or it's the first time you're hearing about it, I recommend you head on over to balance of nature.com or order the whole health system supplements as a preferred customer today. You will in fact have a more natural life if you do head on over to balanceofnature.com right now. The majority questions doctrine says that unless Congress clearly delegates a specific power to the executive, the Executive does not have that power. If it's a major power, then we have to interpret it as though they didn't do it. Unless they clearly do it. Why do you think the liberals opposed it? Now, quick quiz question. Think about it. Why are the liberals opposing the major questions doctrine, which says that Congress, unless it clearly authorizes movement of major power from the legislature to the Executive, we're going to interpret it as though they didn't do it. Why do liberals oppose that? The answer is because they want the executive branch to grab more and more and more power. The weird part of this opinion is not that it was supported by Roberts and Gorsuch and Amy Coney Barrett. The real oddity of this opinion is that it was supported by by the libs. That's the part that's strange. And that's I can only assume that that's coming out of anti Trump animus because let's say that Barack Obama had issued these particular tariffs. There's no doubt in my mind that Kagan, Sotomayor, and Jackson likely would have said no, no, no, no, no, no. There's no major questions doctrine. So what they try to do is they try to have the baby. They try to make the they try to make the claim that the statute itself does not authorize the tariffs. I agree. But that even if the statute were if the statute were unclear, they tried to say that the statute clearly does not authorize the tariffs. Therefore, we don't even have to implicate the major questions doctrine. Remember, it's a two step for Roberts. He says the statute seems pretty clear that it's not authorizing tariffs. But if you're unclear on it, then my backup is the major questions doctrine, meaning there's a major power. It can't be moved from legislature to executive branches without some sort of clear delegation of authority. The liberals are saying we don't like that second part. We want to constantly interpret it as though Congress has shot power over to the executive branch when a lib is in charge. So instead, because we don't like Trump, what we will do is we'll say that the IEPA is so unbelievably clear that it bans tariff power here. And so we don't even need the major questions doctrine. And in fact, the major questions doctrine is is an anti administrative state bad thing. So that's what the liberals are arguing. Okay, so that's sort of argument number one against that part of the decision. In a second we'll get to the two conservative dissents, one coming from Justice Kavanaugh, which is extremely lengthy, and one coming short and sweet from Justice Thomas, who makes, I think, a much more wide ranging claim. We'll get to that momentarily. First, it is indeed the month of love, flowers and chocolate. There's a lot of young people trying to find that special somebody. Before giving up hope in today's atrocious dating culture, you should probably make sure you're asking your date the big questions, like do you want kids in the future? Or what are your thoughts on religion so you can get a better idea of whether or not they're the right person for you? Well, the same goes if you're hiring. 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Try it for free at ZipRecruiter.com Daily Wire that ZipRecruiter.com Daily wire make sure that you mention that we sent you there because it helps them and it helps us. And we really appreciate obviously our sponsors so we can continue to bring you great content. We also appreciate, by the way, our subscribers head on over to DailyWire.com right now and subscribe because it helps us bring you great real time content and breakdowns of things that are happening in the world. All right, so to the dissents. A couple quick dissents here. So Justice Thomas, his dissent is sort of fascinating. He says Congress can delegate the tariff power to the President permanently. Not only that, he says they kind of sort of did. So what he says is that the majority questions doctrine, the non delegation doctrine, is really not even implicated here because Congress passed over the tariff power to the President and can do so in broad measures and just leave it there forever. So what he says is the Constitution's separation of powers forbids Congress from delegating core legislative power to the President. This principle, known as the non delegation doctrine, is rooted in the Constitution's legislative Vesting Clause and Due Process Clause. Both clauses forbid Congress from delegating court legislative power, which is the power to make substantive rules setting the conditions for deprivations of life, liberty or property. Neither clause prohibits Congress nor from delegating other kinds of power because the Constitution assigns Congress many powers that do not implicate the non delegation doctrine. Congress may delegate the exercise many powers to the President. Congress has done so repeatedly since the Founding with this Court's blessing. So in his opinion, basically the major questions doctrine is not implicated here because really it really should only be applied when you are talking about core legislative function, which is about life, liberty and property. Now that has some pretty radical implications as Justice Gorsuch discussed in in his concurrence. So that is one objection. The other big objection comes courtesy of Justice Kavanaugh. Justice Kavanaugh, he writes a very, very long dissent. It is joined by Thomas and Alito. He basically makes a couple of claims. One, that Congress authorizes the President to impose tariffs on imports and that this happens all the time. Second, that the IEEPA broadly authorizes the President to regulate international economic transactions and that regulate importation means tariff the whole world. He says that he concludes the President's power under IEPA to regulate importation encompasses tariffs. And he says the major questions doctrine does not apply because there was a delegation and because the Court also does not apply it with regard to foreign policy power. He says, first, the statutory text, history and precedent constitute a clear congressional authorization for the President to impose tariffs as a means to regulate importation. Second, and in the alternative, the major questions doctrine does not apply in the foreign affairs context. So in other words, tariff power is part of foreign affairs. That is an argument that, as we would say in law school, proves too much. It basically then suggests that the President has unfettered power over tariffs, because, I mean, if tariffs are just foreign policy and the President is the commander in chief, then he just controls tariff policy forever. And that sort of reads out a hefty chunk of Article 1. And then of course, he says that tariffs are just like embargoes or quotas, as we discussed before. Justice Roberts says, no, it's a completely different thing. Okay. The Gorsuch concurrence does a good job of knocking down a bunch of these arguments. The Gorsuch concurrence. He says that the Major questions doctrine, unlike the libs, say you need a major questions doctrine because you don't want Article 1, the legislature to keep tossing power to the Executive or the Executive to keep seizing power in the absence of a clear remit of power. He says the Major questions doctrine teaches that to sustain a claim that Congress has granted them an extraordinary power, executive officials must identify clear authority for that power. Far from a novelty, much the same principle has long applied to those who claim extraordinary delegated authority, whether in private or public law. And he says Article 1 grants Congress, not the President, the power to impose tariffs. He says, and this is right, a ruling for him here, the President acknowledges, would afford future Presidents the same latitude he asserts for himself. So, as I told you earlier, as is what Gorsuch writes, another President might impose tariffs on gas powered automobiles to respond to climate change, or really on virtually any imports for any emergency any President might perceive, and all of these emergency declarations would be unreviewable. Just ask yourself what President would willingly give up that kind of power. And then he rips into the dissenters, claiming that the attempt to obliterate the major questions doctrine is silly. He says before us, the President insists that he may use IEEPA to equalize foreign and domestic duties or not. He may use it to negotiate with foreign countries or not. He may set tariffs at 1% or 1 million percent. He may target one nation and one product or every nation and every product, and he may change his mind at any time for nearly any reason. As I see it, history dating back to near the Founding does not support the notion that Presidents have traditionally enjoyed so much power. More nearly history refutes it. Then he takes on Justice Thomas dissent. He says Justice Thomas suggests that Congress may hand over most of its constitutionally vested powers to the President completely and forever. On his view, the only powers Congress may not delegate are those that involve rules setting the conditions for deprivations of life, liberty or property. From this rule, it follows Congress may give all its tariff power to the President because importing is a matter of privilege. As a result, this case should not implicate any separation of powers concerns at all. On his telling, the doctrine applies only to Congress's true legislative powers, which he says include only those powers addressing deprivation of life, liberty or property. And as it turns out, only a small subset of Congress's enumerated powers fit that bill. Only those few powers would be exclusively vested in Congress and subject to review of any kind under the non delegation doctrine. So Congress could hand them off to the President completely, and he has no need to worry about legal challenges, even under the Court's non delegation doctrine might find itself permanently unable to retrieve those powers. But if that's true, then what do we make of the Constitution's text? Says Gorsuch, Section 1 of Article 1 vests all legislative powers here and granted in Congress and no one else. Section 8 proceeds to list those powers in detail and without differentiation. Neither provision speaks of some divide between true legislative powers touching on life, liberty or property that are permanently vested in Congress alone and other kinds of powers that may be given away and possibly lost forever to the President. Now again, this is one of the ironies of the way this decision broke down. Many of the same Justices who just voted that the Clean Air act, for example, does not give authority to the EPA to regulate greenhouse gases. Which is correct because you would need Congress to say it. Are now arguing that the President has unlimited tariff authority because they vaguely sort of kind of said a thing that's kind of nearby to the area of tariffs. So then the question becomes what is next? Now the reality, as Kavanaugh points out in his dissent, is the President has a bunch of other ways to impose tariffs. He's got Section 122 of the Trade act of 1974, which allows the President to impose a temporary import surcharge to deal with large and serious balance of payments deficits 150 days. There's also section 201 of the Trade act of 1974 that provides that if the International Trade Commission determines that an article is being imported in such quantities that it causes serious injury to domestic industry, the president could take some action. Now, that does rely on the ITC. Section 301 allows the President to impose duties if he determines that an act, policy or practice of a foreign country is unjustifiable and burdens or restricts U.S. commerce. So that would be like unfair trade practices. So some of these tariffs could theoretically come back. And Kavanaugh points out that all the tariff revenue that has been collected is now in limbo. How does that. Who. Who pays that right? Taxpayers paid the elevated prices. People who are importing to the United States paid those prices, or where does that money go? The answer, in all likelihood, is that the money just kind of sits, that what's done is done. There's no redress that is available. Just going forward, the president can't use this sort of authority. So that is the breakdown. The markets are responding by not doing much because they don't actually know what's happening, because no one knows what's happening. Is Trump going to let it die? What I think is a smart economic move, impose targeted tariffs for specific reasons as a weapon of leverage. If Congress wants to pass big tariffs, go ask Congress for it. That's what I think that they should do. Or are they going to go whole hog? Will the Trump administration try to reimpose all of the. All of these tariffs? That is the big question. Well, joining us on the line to discuss the legal decision making here is Ilya Shapiro. He's the senior fellow and director of Constitutional Studies at Manhattan Institute. Ilya, thanks so much for the time. I appreciate it.
- [35:29]
B
Good to be with you. And I must say, I agree with everything you said, and I'm impressed that you digested that opinion almost in live time on air. It's a convoluted 170 pages.
- [35:43]
A
It is. There's a lot there. I thought that actually the two most radical implications were being drawn by the dissent. One drawn by Justice Thomas, which honestly, I find kind of shocking from Justice Thomas, and the other being drawn by the dissenting liberals on the court, who seem to want to obliterate the major questions doctrine so that Congress can delegate all power to the President without any question of majority questions. And they could do so unclearly. They could have, like, a vague statute, and then all power just suddenly resides in the executive branch whenever the left of the court thinks it's fine. And honestly, I'm a little puzzled by Justice Thomas dissent here, in which he seems to argue that Congress can simply move core powers that don't implicate life, liberty or property over to the executive branch. That that seems to pave the way for a massive land grab by the executive branch. I suppose that Justice Thomas would argue, well, you know, Congress needs to defend its own prerogative, not our job is Article 3 to do that. What's your take on it?
- [36:40]
B
Yeah, I was surprised by that as well, particularly given his opinions in previous so called non delegation cases. The idea that challenges to interact with expansive grants of power where he has been on the side of no, Congress can't pass that along, whether in high profile cases or low profile cases, politically salient or not. So this very much cuts against his normal grain. Kavanaugh was less surprised about because he's always been for executive power, working in the Bush White House, et cetera, and sort of makes carve outs for foreign affairs and certain other things. That was understandable. Very kind of a technocratic ruling to which Roberts replies that there's no foreign affairs exception to major questions. But you're right, Thomas is a head scratcher. And of course Alito did not write separately. He joined Kavanaugh's opinion, not Thomas's.
- [37:33]
A
There are a bunch of sort of weird oddities to the way that the opinion voting broke down here. I pointed out a little bit earlier that there is something odd about Chief Justice Roberts who declared that Obamacare was not in fact a tax in order to declare it constitutional. Now declaring that tariffs are in fact a tax in order to declare them unconstitutional. I, you know, I think that both of those things are taxes and we should declare them as such. So there is, there's a bit of irony there, but it is, it is a fascinating breakdown. The big question that the Kavanaugh pushes forward obviously is what happens to all that tariff revenue that was collected. My belief is that the courts are basically going to leave that where it lies. I don't think that there's going to be any really great way to sort of untie that Gordian knot. The money has already changed hands. It's already come in. It's hard to see kind of where the specific damages lie. Because if you are an exporter to the United States, for example, did you pay the tariff or did the consumer pay the tariff? And if you made a bunch of money off exporting to the United States, as many exporters actually did, were you damaged? My guess is that the court is basically going to throw up a tan and say, listen, you know what happens from now on is the only thing that we're ruling on here.
- [38:39]
B
Well, I'm not surprised the Supreme Court didn't rule on that because it is complicated. It wasn't briefed. It wasn't presented or ruled upon by the lower courts. This all now goes back to the lower courts where if someone seeks a refund, there might be multiple mechanisms.
- [38:53]
C
We don't know.
- [38:54]
B
Tariffs of this scale have never been rejected before. But whether it's in the court of federal claims, federal district court, some sort of trade mechanism through obscure administrative offices, I'm not even fully aware of because I'm not a trade lawyer. That is, you know, this is a full employment act for trade lawyers still to figure all of that out. And those questions may eventually get to the Supreme Court, although I doubt it. I think that there are going to be some, you know, very technical rulings coming down below.
- [39:24]
A
So the big question here, practicalities, Kavanaugh,
- [39:28]
B
I think a majority will agree with Kavanaugh does agree with Kavanaugh that there are other methods of putting in other kinds of tariffs. You know, Roberts majority opinion is, is very narrow in that sense. It basically says this statute does not authorize these tariffs. We say nothing about anything else. Gorsuch was, was similar about that. And so Scott Besant, the Treasury Secretary, now that we've been going on for months since the opinion and it looked like that means that the tariffs were going down, he's been very publicly discussing all of these other alternatives, saying the sky isn't falling. We can still impose various other tariffs. So that is probably less of a practical consequence. But another point that Kavanaugh raises about our trade deals that are tied to the current level of tariffs, will those now be need to be reexamined. A lot more uncertainty there, I think, than in those individualized tariffs that may remain or may now be put in place by the administration.
- [40:29]
A
Now, in my opinion, if you're the treasury secretary, Scott Bessen, I think that you are overjoyed today. And I think the reason that you are overjoyed today is because the president is not going to get lost in the weeds of which particular statutes allow which particular tariffs. But you know who will get lost in those weeds? The treasury secretary. And the treasury secretary will be able to use the law as a way of arguing to the President, hey, look, Mr. President, there's certain stuff we can do, there's certain stuff we can't do. Let's be targeted in our approach so we don't run up against this thing again. And you know, I think the Treasury Secretary does not have the blunderbuss approach to tariffs that the president seems to have and then withdraw and then take it back. And, you know, just to be real about this, the economic growth statistics that came out from last year are weaker than they really should be. They're about 2%, 2.2% GDP growth over the course of 2025. Those are not the kind of numbers that are going to sustain a midterm victory for Republicans or secure a 2028 victory for Republicans. And tariffs have had a hampering effect on the economy. So I happen to to be of the very strong, informed opinion that the Treasury Secretary is not, in fact, a great lover of tariffs from the get go, the way that the President of the United States is. I think he is now going to have the legal tools at his disposal to be a lot more targeted in how tariffs are applied, as opposed to President Trump going out there with a poster board and declaring that penguins on the Solomon Islands are now going to be footing the cost for America's deficits.
- [41:48]
B
That's right. Those penguin suits, I don't know if that's where we get our tuxedos. Won't have those tariffs on them. And, you know, this might foreshadow more broadly the court's approach, approach to checking the administration when it steals bases. In effect, you have to follow proper procedures, whether that's with respect to dinging Harvard for civil rights violations or, you know, birthright citizenship is gonna come down the pike. And I think what the court's gonna do with that is not rule on the underlying constitutional merits, but just say the president can't do it alone. So I think this ruling, even though it's significant economically and has all this media attention at the end of the day, is a narrow procedural ruling saying you didn't follow the precise steps. You have all of these statutes that you can use, whether it's to go against Canada and Western Europe or China or whatever your goals are, specifically, go ahead and use them. You can't just have a carte blanche delegation, which is, again, why it's surprising that Justice Thomas, I think, would have let the president, any president, not just Trump, have that kind of intense taxation authority.
- [43:00]
A
One of the things here that I think is fascinating, again, speaking of weird, strange bedfellows here, as I argued earlier, if this had been Barack Obama declaring worldwide tariffs in order to end greenhouse gas emissions, I have no doubt whatsoever that Kagan, Sotomayor and Jackson would have ruled in favor of that effectuation of authority. They would have said the Clean Air act and national emergency power combined allow you to just do that sort of thing. And I think that a lot of conservatives who are sort of caterwauling today over the fact that the Trump administration got backhanded by the Supreme Court over the way that these tariffs were imposed. If the shoe were on the other foot, they are going to be very grateful that there is in fact a barrier between national emergency power being declared unilaterally by the executive branch involving massive economic burdens placed on the American taxpayer and the economy in the name of some unilateral emergency. I think they're going to be very glad that the Supreme Court stood in that breach actually here and stopped it as it currently lies. Because again, as I think Gorsuch properly points out, if the shoe were on the other foot, then you would be in a position where a Democratic president could declare a national emergency on the basis of global warming and simply tariff to the fullest extent of any economic law every car coming into the country and basically destroy the entire auto industry or your ability to obtain an automobile. Just to take a simple example, a lot of conservatives. You know, this is why again, I tend to favor principle over over convenient policy because it turns out that principles, once established are very, very difficult to disestablish.
- [44:32]
B
Yep, six years from now, President AOC may really hate this opinion, but we'll all be the better for it. Absolutely.
- [44:42]
A
Montilia Shapiro over at Manhattan Institute Ilya, thanks so much for the time and thank you for the insight. So as part and parcel of this, first of all, let me just point out that once again you should head on over and subscribe to Daily Wire so that we can continue to bring you great content like this. Also, if this judicial opinion is not putting you to sleep, but you actually would like to go to sleep at some point, then you need Helix Sleep. You just do. And now I understand waiting through 170 page opinion. Maybe that's what maybe you just put this podcast on at night. It soothes you to sleep. I've heard from people that they actually do this, which is kind of crazy to me. But if that doesn't work for you, Helix will make it happen for you because again, they make the world's best mattresses and they make it specifically for you with their Sleep quiz, which matches you to the perfect mattress based on your specific preferences and sleep needs. They're not just another mattress company either. Helix is the most awarded mattress brand out there, with glowing reviews from major publications like Forbes and Wired. My entire family uses Helix Sleep. I took the quiz. I need a firm but breathable mattress because if the mattress is too soft then I start to get back pain. If it doesn't breathe, I tend to heat up at night. Folks, it's not just marketing. A study conducted by Helix found 82% of participants actually saw an increase in deep sleep cycle while sleeping on a Helix mattress. Pretty impressive when you think about how crucial quality sleep is for everything else in life. I've met the founders. This mattress is indeed the real deal. We're soaking up the sleep right now in preparation for baby number five. God willing, Helix even offers free shipping straight to your door. A 120 night sleep trial so you can actually test it out in your own home. Start sleeping right today by ordering a Helix mattress today. Head ON over to helixleep.com BEN for 27% off site wide that's helixleep.com BEN for27% off site wide. Make sure you enter our show name after checkout so they know that we sent you. That's helixleep.com Ben so what's the economic impact of all of this going to be? Well, you know, in certain areas the tariffs will be reimposed. Brad Setzer at the Council on Foreign Relations says that the Trump administration will certainly use other authorities, many of those that we have cited, to reimpose some of the tariffs. But there are other countries like China or other countries that are not hit by existing 232s. 232 is the section of the law that is used for national security reasons. It's very often used for say, semiconductors or steel, as he points out. Consider the structure of Korea's trade with the United States versus that of China. Korea exports a ton of autos which are still subject to the 232 auto tariff. Its steel is still subject to the 232 tariff there. Its chip exports could potentially be targeted by the semiconductor 232. Korea doesn't get a huge benefit here. Europe and Japan are in somewhat similar positions. China, because again Trump cited the IEPA to do this doesn't export many products covered by 232. So the first approximation of the court's decision reduces the effective tariff on China from 30% to just over 10%, which is a pretty giant fall. Now they can raise it back up obviously, but it will be interesting to see what is imposed, how quickly it is imposed on an economic level. Again, the President may be utterly and completely wedded to the idea that tariffs are great for the economy, in which case he fights another battle to reimpose those tariffs. I think that's the reason why the market isn't spiking today. The market is thinking, well, you know, Trump might still do the thing, like, Trump might still go back and just do it again. That's why the markets are not jumping. But if it becomes clear they're going to let it go, then I think you will see the markets begin to climb. There are a lot of businesses in the United States that report or that that rely on foreign imports as inputs in their products. And they've been holding off on hiring, they've been holding off on, on development because they don't know what's coming down the pike next. Again, stability, stability, stability. Hopefully the Treasury Secretary will get to the president in time to propose a simple and stable regimen of tariffs that are negotiated over time that make a lot more sense under current available legal authorities. In a moment, we're going to be joined by Jason Furman over at Harvard to talk about the economic impact. Professor Furman is the Harvard professor of economics. Professor, thanks so much for taking the time. Really appreciate it.
- [48:43]
C
Great to be with you.
- [48:46]
A
So let's talk about the economic impact of all of this. There are basically two big questions. One is how do these fees that have already been taken in, these tariffs that have already been taken in, how do those get unwrapped? That's a question that Kavanaugh is asking. Might approximate a couple hundred billion dollars in revenue that's been taken in by the government. Does that get disgorged? Does it basically just get eaten? That's unclear. And number two is, of course, whether the Trump administration will try to find alternative methods to for imposing this broad spate of tariffs on the entire world in what I think is pretty blunderbuss fashion. What's your take on both those questions?
- [49:19]
C
Yeah, look, we still have a lot of uncertainty here. The Supreme Court was completely clear about this set of tariffs. It's not clear whether the businesses should get the money back. It's not clear what comes next. But I think this does reduce our uncertainty. The other legal authorities the president has to use, tariffs in some cases are time limited in terms of how long they can apply. In other cases require more of a process. You can't just wake up in the middle of the night and not like the tone of voice of the leader of Switzerland and put tariffs on Switzerland. So less arbitrary and capriciousness going forward. But the broad sweep of tariffs and how many of them come back, that will be up to the President and potentially back in the courts again.
- [50:05]
A
So when we look at the possibility of, you know, the Trump administration actually being held up by the courts here, it seems to me that this is definitely a positive move for the economy. The suggestion I was making earlier is that President Trump basically went to his people and said, I want to tariff everybody. Give me an authority. And they said, okay, how about the iepa? And he said, I don't know what that is. Go for it. And they printed up a giant poster board that put tariffs on Korea at some rate based on a bizarre balance of payments and trade deficit or something. And so it got struck down. Now, presumably, you will actually have to have some legal experts on the line who are attempting to calibrate specific tariffs to specific uses under sections 232, 301, 122. That puts a lot more power in the hands of the Treasury Secretary because I don't think that the President wants to continue to go to the Supreme Court and get his hand slapped. It seems to me that the tariffs, at the very least are going to, are going to become significantly more professional than they have been. And as you say, I mean, the court made pretty clear they don't like that. The President was just going out there and saying, I didn't like the tone of voice of a particular leader. I slapped the tariff on him.
- [51:10]
C
Yeah, I think you're broadly right. There are different secretaries, though. The Commerce Department legally has a lot of say here. The Commerce Secretary Lutnick is probably more enthusiastic about tariffs than the Treasury Secretary Besant is or the President. From my perspective, Lutnick loves tariffs or the President. You know, from my perspective, low tariffs are better. But as you were saying in your intro to all of this, predictability matters a lot. So if we are going to have tariffs, have them be predictable, have them be telegraphed in advance. And countries should also understand what they can and can't do relative to those tariffs. Again, it's the whim part of this that I thought was corrosive economically, but also politically and to our legal and constitutional structure as a country.
- [52:01]
A
So it'll be interesting to see sort of what, what the markets do here on in. And while I have you on the line, obviously the, the report just came in on Q4 GDP. It came in very, very weak. The, the annual GDP under in 2025 now amounts to 2.2% increase in GDP, which is below the GDP numbers for the, the prior three years. Obviously, inflation has also been a lot lower. So if you're comparing GDP to inflation, you know, I believe it's an inflation adjusted number. But nonetheless, the growth has not been, the growth has not been what people would want it to be for. For those of us who've been claiming the tariffs actually do have an impact on the economy, it seems like this may be a good indicator that that is in fact the case. I would hope the president takes the lesson. What, what is your takeaway from the GDP statistics that just came in?
- [52:46]
C
Yeah, look, I thought GDP growth was fine once you adjust for the fact that the government shut down, subtracted a bunch from it, but they weren't great and they were way below what the Treasury Secretary has been calling for. He's been saying we'll get to 3% growth. I have no doubt they would have been better without the tariffs. You saw, for example, consumers cut their spending on durable goods in the fourth quarter. That's exactly what you would expect them to do when they're faced with higher prices for those goods because of the tariffs. And so we could have been, you know, not at, but closer to the Treasury Secretary's 3% growth target were it not for these tariffs. And yeah, I hope they keep that in mind as they think about what to do next.
- [53:30]
A
That's Jason Berman, professor of Economics at Harvard. Professor, thanks so much for the time. Appreciate it.
- [53:35]
C
Thank you.
- [53:37]
A
Alrighty, folks. Well, if you like live updates, if you like us keeping track of the news, you need to head on over to Daily Wire because we do do this a lot and we make sure that you are up to date on everything that is happening. Now, the goal of our show is to make you more informed and smarter about things that are happening in the world. We can only do those sorts of deep dives and provide you better information that make you smarter by continuing to operate and that is reliant on our subscribers. Head on over to DailyWire.com right now and become a subscriber also. Again, head on over there for more updates throughout the day. If you go back and you look at the opinion, it is pretty obvious the Supreme Court really did not like President Trump's general approach to tariffs, that it appeared arbitrary, capricious and, and exorbitant for the executive branch to act in this way. And I don't think that they are wrong here. Was President Trump not all that long ago claiming that he raised Switzerland's tariffs because he didn't like the tone of the person he was talking to on the phone? That is not a power delegated by Congress to the President of the United States. It just isn't. Then I got an emergency call from, I believe, the Prime Minister of Switzerland, and she was very aggressive, but nice, but very aggressive. Sir, we are a small country. We can't do this. We can't do this. We are. I couldn't get her off the phone. We are a small country. I said, you may be a small country, but we have a $42 billion deficit with you. No, no. We are a small country. Again and again and again. I couldn't get off the fund. So it was at 30%. And I didn't really like the way she talked to us. And so instead of giving her a reduction, I raised it to 39%. On a constitutional level, this is not the way the policymaking works. It isn't. And forgive me, I am still a constitutional conservative who likes the balance of powers, the checks and balances of the Constitution, who still remembers when the legislature was not a vestigial organ of government, and would like that to remain the case again, for conservatives, I understand. People love President Trump. People support. I support President Trump as a general rule. With that said, powers delegated to the executive branch do not flow back to the legislative branch very often. You're going to like those limits when they are applied to a president of a party to which you do not belong. I'm finding it kind of ironic today, looking at all the Democrats who are celebrating this as a big victory. They wouldn't be celebrating this if they understood it's going to apply when a Democrat is in charge. Also, Hakeem Jeffries, the House Minority Leader, put up a tweet suggesting that it was a crushing defeat for President Trump. He said, quote, the Supreme Court decision striking down the harmful Trump tariffs is a big victory for the American people and another crushing defeat for the wannabe king. Again, no one has expanded executive power in my lifetime like Barack Obama expanded executive power, and then Joe Biden expanded it even further. The notion that Democrats are not in love with executive power is insane to me. It's one of the reasons why I don't like the Democratic Party, because they keep wanting to expand the executive at the cost of the checks and balances established by the founders. This is why I say a decision that makes very, very weird bedfellows. We'll continue to bring you all the updates throughout the rest of the day. The president, in about 40 minutes, is going to be doing a press conference. I assume it will be lit as things usually are, and we'll bring you all the updates, then. I'm Ben Spiro. You're listening to the Ben Shapiro Show.