3586 - Corruption and Trump's Major SCOTUS Tariff Loss w/ Mark Joseph Stern

Summary

Podcast Summary: The Majority Report with Sam Seder

Episode 3586: "Corruption and Trump's Major SCOTUS Tariff Loss w/ Mark Joseph Stern"
Date: February 23, 2026
Guest: Mark Joseph Stern (Slate, co-host, Amicus podcast)

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Episode Overview

This episode centers on the Supreme Court’s significant ruling against Donald Trump’s attempt to unilaterally impose global tariffs, unpacks the legal complexities behind the decision, and reflects on the broader implications for executive power, corruption, and the judiciary. Joining Sam Seder and the panel is Mark Joseph Stern of Slate, who provides an in-depth legal breakdown of the case, "Learning Resources v. Trump," and explains how doctrines like the Major Questions Doctrine are being wielded by the Court.

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Key Discussion Topics & Insights

1. Recap of Recent Political Events (00:00–12:00)

• Hosts Sam Seder, Emma Vigeland, and Matt Lech catch up post-blizzard, discussing the challenges of getting to the studio and the value of public transit (03:38–04:01).
• Satirical discussion of media coverage post-Olympics, including references to alleged corruption and partisan figures’ involvement with the U.S. hockey team (05:21–07:41).
• Brief rundown of headline news: DNC election analysis, cartel violence in Mexico, Cuba's healthcare crisis, Pennsylvania's abortion penalty proposal, environmental rollbacks, and more.

2. Ongoing Corruption in the Trump Administration (09:05–14:21)

• Critique of taxpayer-funded luxury jets for Kristi Noem and Corey Lewandowski (09:05–10:45).
• Revelations about transactional corruption:
  • Example: Crypto.com’s $5 million donation to Trump’s super PAC followed by Trump’s direct intervention in a related federal lawsuit (11:25–13:10).
  • Highlighting the normalization of daily corruption and pardons for profit in Trump’s administration:

    "If we were to cover the Trump administration's daily corruption stories, we would honestly have time for little else." — Sam Seder (13:10)

3. The Supreme Court Tariff Case: Learning Resources v. Trump

Guest Segment Begins (30:58)

a. Background & Core Legal Issue (31:15–33:10)

• Trump used a federal emergency statute (the International Powers Act, IPA) to impose tariffs globally, arguing the statute’s language ("regulate importation") granted him that authority.

• The SCOTUS ruled 6–3 against Trump, clarifying “regulate importation” does not grant the power to unilaterally tax via tariffs.

  "Tariffs were in fact, the main tax that the federal government collected for most of American history until the 20th century, which is one reason why Trump seems to like them, because he wants to go back to the 1890s." — Mark Joseph Stern (36:05)

b. Statutory Purpose & Precedents (33:27–34:33)

• Historically, IPA was used for embargoes and quarantines against adversarial nations, never for tariffs.
• SCOTUS affirms only Congress has the constitutional taxing power.

c. Tariffs as Taxes (34:33–36:40)

• Sam and Mark stress that all tariffs are, functionally, taxes on Americans—point made explicit in Court’s ruling.

  "[Chief Justice Roberts] said, 'No, they are taxes that the American people [pay].' And as soon as he said that, the case was sort of over." — Mark Joseph Stern (35:26)

d. The Major Questions Doctrine Debate (38:00–40:53)

• Gorsuch tries to rope the liberal justices into embracing the Major Questions Doctrine—a right-wing judicial tool to curb agency power.

• The Court was split: Three conservatives (Roberts, Barrett, Gorsuch) invoked the doctrine, but the liberals refused, instead sticking to straightforward statutory interpretation.

• Emma notes the business establishment’s influence on when conservatives deviate from Trump (38:00).

  "The only time we'll stand up to him is if the economy... like, you know, the Chamber of Commerce is upset about it." — Emma Vigeland (38:00)

• Kagan’s dissent: Emphasizes that statutory text suffices; no need for a made-up doctrine.

e. Dangers of Flexible Doctrines (44:34–47:16)

• Mark Stern critiques the ad hoc, self-serving way conservative justices apply (or ignore) doctrines like Major Questions and Non-Delegation depending on whose power is at stake.

  "The ultimate kind of trump card, so to speak, with all these doctrines that the conservatives have been making up is that you can always kind of twist it and contort it to get you where you want to go." — Mark Joseph Stern (46:29)

f. Strategic Refusal to Legitimize Conservative Doctrines (54:08–58:11)

• Liberals refuse to sign on to Major Questions to avoid giving it the legitimacy that would entrench it as precedent.

• Kagan delivers a pointed and witty rejection, which the panel relishes (54:44–54:49).

  "She was basically saying like f you Gorsuch, like you're not going to rope me into this." — Emma Vigeland (54:31)

g. Lasting Impact of Court Opinions (56:13–58:59)

• Dissenting or concurring opinions help future courts justify rejecting made-up doctrines.

• Lower courts and future Supreme Courts may use current liberal dissents to limit or overturn conservative juridical inventions.

  "To me, down the road, the value is that it will be much easier to overturn these doctrines as precedent ... when a future court can say, this was never a cross ideological point of agreement." — Mark Joseph Stern (56:33)

4. What Tariff Powers Remain for Trump? (60:01–63:25)

• Two statutes allow limited tariffs:
  1. For national security (with checks and limited scope/duration).
  2. To address trade imbalances, but only for 150 days unless Congress reauthorizes.
• The broad, arbitrary tariffs Trump imposed are now off the table; future attempts could face legal challenges.

5. The Refund Question & More Corruption (63:25–67:41)

• SCOTUS left open how $175 billion in illegally-collected tariff revenue will be refunded (mostly to corporations).

• Speculation that financial traders and connected insiders (“Uday and Kusay Lutnick”) purchased “rights” to legal refunds from companies at steep discounts, likely profiting enormously.

• Mark notes: This is further proof of normalized, consequence-free corruption.

  "The mess is entirely because the Trump administration pulled the trigger on illegal tariffs before bothering to, like, really figure out if they were lawful. And that was on purpose, of course." — Mark Joseph Stern (66:10)

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Notable Quotes & Memorable Moments

• On the normalization of corruption:

  "If we were to cover the Trump administration's daily corruption stories, we would honestly have time for little else." — Sam Seder (13:10)

• Tariffs as taxes:

  "[Chief Justice Roberts] said, 'No, they are taxes that the American people [pay].'" — Mark Joseph Stern (35:26)

• On the Major Questions Doctrine's function:

  "It's... a made up doctrine. I mean, they're all made up, but usually doctrines are made up over time through like decades of law. And this one was just sort of introduced like 10, 15 years ago." — Sam Seder (43:33)

• On what motivates conservative justices:

  "There’s a very consistent way in which some of the conservatives deviate from Trump's demands and it's when the corporate community tells them to." — Mark Joseph Stern (38:00)

• On liberal justices’ strategic dissents:

  "They didn't need the major questions doctrine whatsoever here, because the most basic tools that you learn, like your first month of law school of how to interpret a statute get you where you need to go." — Mark Joseph Stern (42:09)

• On who profits from the refund litigation:

  "Some people will get very wealthy. Some people will walk away with nothing. But what we will probably see as this unwinds is that there was a lot of corruption behind the scenes." — Mark Joseph Stern (67:10)

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Structural Outline & Timestamps

• [00:00–12:00] Show open: Banter, storm tales, Olympic snark, news round-up
• [09:05–14:21] Corruption segment: Noem/Lewandowski jet, Crypto.com/Trump quid pro quo
• [30:58–67:41] Mark Joseph Stern Interview
  • [31:15–33:10]: Overview of Supreme Court case
  • [33:27–34:33]: History and purpose of IPA
  • [34:33–36:40]: Tariffs as taxes
  • [38:00–40:53]: Major Questions Doctrine debate
  • [44:34–47:16]: The dangers of flexible conservative doctrines
  • [54:08–58:59]: Liberal justices’ refusal to entrench conservative legal tools
  • [60:01–63:25]: What tariff authority remains
  • [63:25–67:41]: The refund mess, financial insiders’ windfalls

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Final Thoughts & Analysis

The episode makes clear how the Supreme Court’s tariff ruling clips executive overreach, but also how doctrines meant to check power can be bent for partisan ends. The hosts and guest spotlight both the open, transactional nature of corruption in the Trump era and the strategic maneuvering by liberal justices to limit conservative tools that could haunt future progressive administrations. The conversation is lively, substantive, and loaded with sharp inside-baseball on the law, Supreme Court dynamics, and the broader state of U.S. democracy.

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Additional References

• Major Questions Doctrine: A judicial doctrine (mainly used by conservatives) allowing courts to block regulatory actions they deem to have “major” economic or political significance unless Congress has clearly authorized them.
• Non-Delegation Doctrine: The idea (championed by some conservatives) that Congress cannot “delegate” its core powers, like taxation, to executive agencies.
• Chevron Deference: The principle (recently overturned) that courts should defer to agencies’ interpretations of ambiguous statutes they administer.

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This summary is designed for listeners who haven’t heard the episode but want a clear, comprehensive understanding of the discussion, arguments, and significance of the Supreme Court’s decision on Trump’s tariffs and its wider implications for American democracy.

Transcript

[Emma Vigeland]

You are listening to a free version of the Majority Report. Support this [e-mail] and get an extra hour of content daily.

[Sam Seder]

The Majority Report with Sam Cedar. It is Monday, February 23rd, 2026. My name is Sam Seder. This is the five time award winning Majority Report. We are broadcasting live steps from the industrially ravaged Gowanus Canal in the heartland of America, downtown Brooklyn, usa. On the program today, Mark Joseph Stern, senior writer covering courts and the law for Slate, co host of the Amicus podcast on the stunning loss the Trump administration at the Supreme Court last week over tariffs and Trump's authority to institute new tariffs. Speaking of which, Trump howls at the moon and threatens a 15% global tariff regime, stopping the EU from voting on its US trade deal. With the biggest buildup of bombers since the Iraq War. Trump considers bombing Iran buried. DNC autopsy following the 2024 election shows Gaza stance cost Harris significant votes.

[Emma Vigeland]

No. No way.

[Sam Seder]

Surprise, surprise. Mexico kills top cartel leader. Cartel retaliates causing Mexican League soccer games to be canceled. Trump demands that Netflix fires Susan Rice. Tennessee Republicans would allow death penalty for women who have an abortion. Cuban health care system pushed to the brink by US fuel blockade. Senate Republicans weigh the a filibuster fight to push through the SAVE Act. DHS reverses its suspension of TSA PreCheck workers as the DHS shutdown continues. Also, EPA to loosen mercury rules for coal plants. Oh, and also arsenic and cadmium and lead and nickel. Mamdani fails to stop the east coast blizzard but does issue a real snow day.

[Jacob Soboroff]

Wow.

[Sam Seder]

FDA pulls back on the ban of artificial food coloring. And more on today's Majority Report. Welcome, ladies and gentlemen.

[Emma Vigeland]

It is Funday Monday.

[Sam Seder]

Funday Monday. I am back from vacation.

[Emma Vigeland]

Welcome back.

[Sam Seder]

Thank you. I gained one buckle fracture wrist in my family over the week. Over the week and also throughout my back.

[Emma Vigeland]

Okay, so you and you and Saul are in solidarity together.

[Sam Seder]

Exactly, exactly.

[Emma Vigeland]

Snow related injuries.

[Sam Seder]

Snow related injuries. But happy to be back. And of course we are in today, despite the blizzard.

[Emma Vigeland]

It was quite something getting in today.

[Sam Seder]

There is no other. In fact, it was illegal to drive here today.

[Emma Vigeland]

But that's the magic of public transit. And of course the fact that as podcasters, we are essential workers.

[Matt Lech]

It was like death stranding. Video game players will know what that reference is about.

[Sam Seder]

Matt came in. He was a little bit annoyed that Dunkin Donuts wasn't open.

[Matt Lech]

I mean, the whole thing I was looking forward to as I trudged through, like, I don't know on the some Trail to the north is a coffee and. Nope, no coffee.

[Sam Seder]

No coffee.

[Matt Lech]

Don't talk to me until I've had my coffee.

[Emma Vigeland]

You're always saying that. You have so many T shirts that say it too.

[Sam Seder]

Things were a little. A little testy in the office this morning. New Jersey mailman says, how did you get in the office? It was so bad in New Jersey, the U.S. postal Service canceled operations. Oh, come on. We're working in the post office. That's bullshit. Honestly, I was gonna. Where we're in here. We're only second to the postal service, but apparently we're number one. But New Jersey mailman also suggests that Emma or Matt or Brian call OSHA asap. I texted Sam, are we doing a show today? And you got back to me like, almost like that was a dumb question. I was in the subway when you said that. I already walked through, but I was

[Emma Vigeland]

like, oh, well, you texted us about it when we would all be coming in. So it was. I think I was literally out the door.

[Sam Seder]

So that's when Brian texted me too. And I'm like, wait, if this is you're going to talk about, what are you doing?

[Emma Vigeland]

We're sickos. We enjoy this.

[Sam Seder]

Hadn't occurred to me.

[Emma Vigeland]

Yeah.

[Sam Seder]

All right, well, that said, the Olympics are over. And the way, you know, the Olympics have ended is because, as is tradition, the United States sent the head of the FBI in the middle of multiple investigations to go and party with some of the athletes. Here is Cash Patel. I mean, it's. This is. I don't know. I don't know how the USA Hockey team feels about this.

[Emma Vigeland]

Oh, they love it. This is very unfortunate. It was quite hard for me to root for this group of guys, the Tkachuk brothers. There's so many MAGA associated MAGA loving players on this team. So they. I'm sure we're thrilled to have catch.

[Matt Lech]

And they don't read the news though.

[Emma Vigeland]

I ruining the sport.

[Sam Seder]

I hadn't followed them, but. But I like to think that there's at least one guy in the locker room going like, seriously?

[Matt Lech]

Epson files?

[Emma Vigeland]

Yeah.

[Sam Seder]

Here is. Here is your director of FBI,

[Emma Vigeland]

Dylan Larkin, right behind him. Oh, there's Matthew. There's Matthew Kachuk.

[Sam Seder]

There's the gold. That cash one.

[Emma Vigeland]

Jesus Christ. They're singing country music your ass.

[Sam Seder]

This is the Iraq war buildup song. Oh, that's. Yeah.

[Matt Lech]

I wish they lost.

[Sam Seder]

Oh, I mean, I don't mind saying it at all.

[Emma Vigeland]

Well, I'll just a little bit of sports. Canada was by far the better team. They just got goalied. If you can root for one guy, it's Connor Hellebock, who's one of the best goalies in the history of US Hockey. So also, if you want like a little bit of a, you know, to stick it to them here. I don't know how you can be this euphoric about a gold medal when the Russians aren't playing. I mean, it really is amazing to me that the, this like the Olympics have marginalized themselves to such a degree that the US and Israel committing a genocide right now get to participate. But the Russians don't like, of course Russia's war in Ukraine is horrendous. We're committing genocide.

[Matt Lech]

None of those three countries should be involved.

[Emma Vigeland]

The Olympics marginalized themselves as a relic in the west by having these completely unequal and hypocritical stances.

[Sam Seder]

Be that as it may, I am, I would say agnostic as to whether the head of the FBI should be partying with the USA Hockey team or any of the athletes. But the thing that I find a little bit annoying about it is that we all paid for him to fly there and party. That was a business trip, I guess. And I don't know, I think this guy agrees with me that this is not the best use of US Taxpayer dollars air. And I'm not saying take all their funding.

[Jacob Soboroff]

I'm not the defund everything guy. I'm just saying Chris Wray doesn't need

[Sam Seder]

a government funded G5 jet to go to vacation. Maybe we ground that plane 15,000 every time it takes off. This is our minimum. Yeah, minimum. But we paid for his John. We also paid for him to go see his girlfriend in a concert or something. Yeah.

[Matt Lech]

Did she get to go to the, the Olympics?

[Mark Joseph Stern]

No, that's.

[Emma Vigeland]

No, it's just for the boys. The boys were out.

[Sam Seder]

They needed to party. But to be fair to Cash Patel, he's not the only one in the Trump administration who is incredibly corrupt. Here is a tour of the $70 million luxury jet that taxpayers have bought for Kristi Noem and Corey Lewandowski.

[Emma Vigeland]

They're definitely not make out in flying love shack.

[Sam Seder]

Here's Jacob Soboroff.

[Jacob Soboroff]

VIP 7378 Max jet. Let's go into the hallway here. We're going to do this together, guys. Paneling's quite nice. This is I think maybe a powder room on the left hand side that the secretary may use. Somebody said there are bidets on board. I don't know if you flip up the toilet seat there, that's a bidet or just a toilet seat, but nice looking either way. And I don't know if it's real wood or laminate or whatever, but pretty fancy looking. This is the kitchen, the galley kitchen. When you go in here, perfect stainless steel appliances. Are those mixed nuts up there? There's a microwave. I don't even have a microwave in my house, I swear to God. Two fridges it looks like. Let's go back out into the hallway here and head back towards the back of the plane.

[Sam Seder]

Those are all captain's chairs.

[Jacob Soboroff]

They look like nice leather. I don't think it's pleather. If there are deportees there, I don't think they're going to be using the wet bar.

[Sam Seder]

No, we don't need to hear more. I mean ostensibly this is for deport to be sent out, but I guess it is for Lewandowski and Kristi Noem to oversee the deportees. I guess to fly out we've got to fly too.

[Emma Vigeland]

Kristi Noem also, I believe because allegedly she and Corey Lewandowski are in this multi year long extramarital affair. She needed her privacy and kicked out a military member in one of the they don't have actual traditional housing as a way. Cabinet members would just have a home in D.C. they live on military bases for extra privacy.

[Sam Seder]

She also had a someone fired for leaving her blanket on the plane and then they rehired him. So Lewandowski fired for her right on

[Emma Vigeland]

her behalf because they forgot the blanket.

[Sam Seder]

And just to top it off, just to give you a this is really just we're trying to provide the various flavors of corruption that are going on this administration. We don't talk about how corrupt this administration is on a regular basis because it is almost now normalized by this administration. The entire tariff regime was a leverage point for corruption. So you could provide waivers. Here's Judd Legum. He has a His substack is popular info. Popular info definitely worth a subscription to, he writes. On January 23, crypto.com donated $5 million to MAGA Inc. Trump's primary super PAC. The donation was first disclosed in an FEC filing Friday night. That would have been last Friday. Less than a month later, on February 17th, the Trump administration intervened on Crypto.com's behalf in a high stakes federal lawsuit. Keep scrolling through the the Lawsuit concerned whether Crypto.com could offer prediction markets on sporting events in Nevada, even though it violated state law. Crypto.com lost and is appealing. Trump's consumer financial CFTC, the Commodities Future Trading Commission is backing crypto.com's appeal. So it's essentially functioning as a their sort of filing amicus brief or you know, their co counsel. The timing of the CFTC's intervention raises serious ethical questions. I'll say this is just par for the course. We know stories of people buying pardons for a million dollars, a million five. I mean it goes on and on. If we were to cover the Trump administration's daily corruption stories, we would honestly have time for little else. But it is important for us to sort of just keep you in mind, or I should to remind you to keep in mind the fact that the Trump administration is incredibly corrupt and is continued that corruption on a daily basis. In a few minutes we're going to be talking to Mark Joseph Stern about the tariff ruling here. Is Donald Trump responding to this tariff decision yesterday. Is this the one where he meanders, where he's talking about.

[Emma Vigeland]

Oh no, this is from Friday. But I like this clip if you want to play this.

[Sam Seder]

Let's get to this one a second. What was the other one? What number was that one? I'm sorry, Brian. At the bottom under this.

[Unknown Guest]

Under Trump polling.

[Sam Seder]

Okay, let's do the polling. We'll do that last one. Alright. Yeah. Okay, here we go. Here is. Oh, it was the shoveling I wanted to get to. Here is Donald Trump. This is. I bring this up only because Saul and I were up in Vermont doing a little, well, very, very little snowboarding because he injured himself. But we went to a, we went to a. We like to go to escape rooms.

[Emma Vigeland]

That's really fun.

[Sam Seder]

I like to do those together. And we're actually quite good. I'm not going to get into it too much, but anyways. And met a guy who had all sorts of like weird Mamdani theories. He had visited New York and was like, mom, Donnie's not doing good with the shoveling. And like it seems like I was in New York. It seems like there's a lot more immigrants there. And I'm like, first of all, I was shocked. This is something you expect to hear from maybe a 65 year old divorce guy. But this guy was relatively young, I think his 20s.

[Emma Vigeland]

Gives you a sense of what's being pushed to the top of people's feeds and algorithms.

[Sam Seder]

That's the thing, is that there has been such a concerted effort to attack Mamdani. Now it's not terribly effective in New York City because Mamdani has a direct relationship with the citizens of New York City in a way that most politicians don't have, but outside is fascinating. But here is another. Mamdani made a call. And to say volunteer is the wrong word in my estimation. I think this is part of the confusion. He made a call for people who want a, essentially a gig job to shovel snow. And the city was going to step up and pay people to shovel. Areas that don't usually get shoveled. Like corners of sidewalks very often don't get shoveled because somebody owns a, a building or they own a brownstone or something like that, and they shoveled just the exact area of their, of their apartment building or office building or whatever it is. And at the corners, there's like a, there's a, there's an empty zone. So Mamdani put out this call to pay people for gig work. Frankly, if I wasn't in here, that's something I would, I would have done. I love to shovel for money. That was how I made my first dollars as a kid. But it gets communicated like, you're not allowed to just go out with a shovel and shovel. Like, you can't volunteer to shovel. In other words, do for free without paperwork. Because of course, mom Donnie was like, you gotta sign up.

[Emma Vigeland]

Right?

[Sam Seder]

We're gonna pay you. You have to give us your Social Security number and that type of stuff.

[Emma Vigeland]

The city can't just venmo you. I mean, right? It has to be some sort of formalized situation. And. But the use of the word volunteer has caused every right wing outlet to jump on this, that we also covered this last week. They smell blood in the water. They think because the New York Post has been clipping his scenarios about the budget out of context and claiming that his worst case doomsday scenario that he's speaking about with the property taxes is what he's proposing. When it's just a leverage point for Hochul.

[Sam Seder]

Yep. And here is Donald Trump. Apparently they told him there's a good Mamdani talking point here for your save act.

[Unknown Guest]

And

[Sam Seder]

he drifts, he weaves, and he forgets what he's talking about.

[Unknown Guest]

Why would we do this? And they walk in, nobody even asked for like, do you have an identification? Do you have an id? It's so crazy. You know, the mayor of New York and he's a very nice person. I met him. But his ideology is not too good. But we're having a massive snowstorm right now. And I heard that he's asked people to come out and help shovel the snow. Okay, so you get a shovel and you start shoveling. Right. What the hell? You're not Going to help too much, but you can help and. Hello, darling. How are you? Noah, Right behind you. Look, my friend, right? Yes, you. Are you okay? Are you okay? Good, good. Are your eyes okay? I gave her money to get her eyes fixed. A lot of money to get her eyes fixed. That doctor ripped me off, but that's okay. And when do you go? Well, you get them done. It's a pretty. It's an operation, but it's a, it's. It's 100%, you know, it's great. Good. Are you going to wipe the front 2020 vision? You know, she's, she's almost blind. Cataracts. She's almost blind. And with one operation that'll take a very short period of time. Hope you have a good doctor. He's an expensive. He's an expensive doctor. Top of the line, right? But you know what? You're going to have 2020 vision because I notice you're wearing glasses. I saw you yesterday on television wearing glasses. And I said, well, but, you know, speaking of your family, it would be a lot different right now except for the election. So I always say, it's too bad that happened.

[Emma Vigeland]

And if I had it, that's called staying on message. And you guys totally, you're not operating on his level, going to break a

[Sam Seder]

couple of HIPAA laws. And then what was I talking about?

[Matt Lech]

He didn't even get to the point. That is the reason everyone brought this up in the first place, which is they want to use it as a attack to say, this is why we need voter id. You're actually.

[Unknown Guest]

Oh, yes.

[Sam Seder]

Okay, okay, Right, okay, right. Yes, right. Sorry. Cataracts. Yeah, cataracts of the vote. Hello, nurse. Missed you over there.

[Unknown Guest]

How are you doing?

[Sam Seder]

Hello, my friend. No, you, not you, you.

[Unknown Guest]

There you go.

[Sam Seder]

I don't know what was I, what was I talking about? But the Republicans are talking about waging a filibuster fight in the Senate to pass the SAVE Act. In other words, if the upping the requirements of the Democrats, if they're going to attempt a filibuster, the way the Senate has been working for years is that all the opposing party needs to do is signify we're going to filibuster. They don't actually technically have to filibuster, and they'll go right to the vote on ending cloture. And then if it doesn't happen, it doesn't happen. The Senate can change its rules to force a talking filibuster. In other words, you have to continue to hold the floor for an extended period of time until you hit some limit where you have exceeded the amount of time for discussion and therefore the vote can't take place. You know who could have exercised this option in the past? Chuck Schumer, when he was the Senate Majority Leader. So it remains to be seen Trump is trying to convince the Senate to do that. John Thune to do that. But he gets distracted.

[Emma Vigeland]

Oh, yes. Yeah, he. And also, I mean, it's gonna be an enormous hurdle to begin with because Trump needs to convince some of these senators that are getting a little scared about their reelection effort. And it may not, you know, benefit all of the Republicans in the Senate in the way that this crazy act implies that it would. It's more designed to benefit Donald Trump. It would remove tens of millions of people from having the ability to vote.

[Sam Seder]

Yeah, the SAVE act is a disaster. And I still don't believe it's going to pass. And I think the Democrats will filibuster. But it is interesting for the Democrats to get a up close idea of what you can do to make things more difficult. Yeah, we're going to be talking to Mark Joseph Stern in a moment about these, this tariff ruling. In the meantime, a couple words from our sponsors. First is a sponsor that one of those sponsors where I was using the product for years and they just happened to come around and ask, decided to sponsor the program. Delete Me. Delete Me is a service that makes it easy, quick, and safe to remove your personal data online at a time where surveillance and data breaches are common enough to make everyone vulnerable. Of course, a big reason why I use Delete Me is because we do this show and people start to get interested in details about my life that I don't want them to know. 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[Unknown Guest]

Sam.

[Sam Seder]

We are back. Sam Cedar, Emma Vigland on the Majority Report. It is a pleasure to welcome back to the program. Mark Joseph Stern, Senior writer covering courts and the Law for Slate co host the Amicus Podcast with Dahlia Lithwick Mark, thanks so much for joining us.

[Mark Joseph Stern]

Always a pleasure to be back on

[Sam Seder]

Big Case took place last week. It was much anticipated. They took a real long time with this case. But the official name of the case was Learning Resources versus Trump. But it was a case about Trump's tariff powers. Just give us the sort of like the top line before we get into how it was decided.

[Mark Joseph Stern]

So Trump claimed the power under a federal statute designed for international emergencies to issue tariffs of any scope, any duration against any country that he wanted. It's this federal statute called ipa. It's supposed to be used only in emergencies. But Trump claims that trade imbalances and fentanyl smuggling were emergencies. And so he seized on this law to, as we all know, from Liberation Day onward Slap tariffs on most countries around the globe. The language in the statute that he used to justify those tariffs was two words really. The statute said that he could regulate foreign importation. And Trump said that regulate includes taxes and tariffs. And so his to regulate importations encompassed an authority to issue again these unlimited tariffs anywhere, anytime, any place that he wanted. And by a 6 to 3 vote, the Supreme Court said no. The phrase regulate importation, those two words cannot bear the weight that Trump is trying to put on them. Regulation includes a lot of things, but as used in the statute, it does not include the tariff power. And so the Supreme Court said there are other ways you can impose tariffs, but you can't use this law to do so. And struck down the global tariffs that Trump had attacked, attempted to issue under this law.

[Sam Seder]

All right, so I get two questions to just at this stage, in what other instances have the government used ipa? Just to get a sense of like, you know, what, what, what, what type of, what are the use cases for that?

[Mark Joseph Stern]

Yeah, so the words regulate and importation in the statute are actually separated by 16 other words, all of which indicate the real purpose of this law, which is to really impose embarrass embargoes on countries that are acting against the interests of the United States. So past presidents have used IPA to impose embargoes. I believe they have used IPA to impose certain limited quarantines. They have tried to restrict trade with other countries, especially countries accused of engaging in or fostering terrorists, terrorism. Those are the sort of like basic use cases for ipa. Never before, and this law has been on the books and since the 70s, never before has a president tried to use the law to impose tariffs. That was breaking entirely new ground. And that was one of the reasons why the Supreme Court said, look, it's fine for embargoes. It's fine if you wanna cut off an enemy from trading with the United States, but you can't essentially use it as a backdoor to reach into Americans pockets and pull out taxes that Congress didn't authorize.

[Sam Seder]

Well, that was the other part where they read regulate importation. And of course, again, like you say 16 words in between those words. It would be, I would love the idea that if Congress has given the executive the branch, the authority to regulate, we're allowed to put unilateral taxes. I would enjoy that authority for a president aoc, let's say. But before we get there, tariffs equal taxes. I mean, I think most English speakers knew this, but there's a pretentious, there's A pretend. It's. There's been this pretend thing that tariffs are something different.

[Mark Joseph Stern]

Right.

[Sam Seder]

And, and they're not. But how explicit was that made in this case?

[Mark Joseph Stern]

Very explicit. And I kind of felt like this case was decided at oral arguments. When the Chief justice got really mad at Donald Trump's Solicitor General, John Sauer, for pretending that tariffs aren't taxes, he said, no, they are taxes that the American people. And as soon as he said that, the case was sort of over. And that is reflected in his opinion for the Court. I mean, the Constitution grants the taxing power to Congress primarily, and it like enumerates the different kinds of taxes that Congress can lay, including duties which we usually call tariffs now. But it's the same thing. And there's not like any differentiation between them. The idea is that they're all taxes. They're all things that people pay to the government that the government then uses. Tariffs were in fact, the main tax that the federal government collected for most of American history until the 20th century, which is one reason why Trump seems to like them, because he wants to go back to the 1890s. And so this was really a fundamental component of Roberts opinion for the Court. Only Clarence Thomas tried to sort of dispute the idea that tariffs are taxes. And I don't think his logic got him very far. But other members of the Court accepted this point proposition.

[Emma Vigeland]

Well, I'm also curious about if you could flesh out the other subterranean fight over the major questions doctrine that is a part of this opinion here. So you had six to three decision. Obviously the three right wing justices that didn't join Clarence Thomas, Alito and the beer chugger Brett Kavanaugh. But what was funny to me was how aggressively Gorsuch was trying to apply their decision in this case to the major questions doctrine, which we've spoken about many times on this show before, is their Biden era invention that allowed them to strike down things like the eviction moratorium, student debt forgiveness, among others that they came up with to basically supersede Chevron deference. That this is. The Court can weigh in on these kind of issues if it involves a so called major question. And then the three liberal justices were not having it. They're not going to try to be wrapped into this. But it was almost like Gorsuch was trying to legitimize their past very activist usage of major questions to strike down regulations under a Democratic presidency, to be like, hey, we do it too for Trump, but only when, like the economy's involved. The only time we'll stand up to him is if the economy like, you know, the Chamber of Commerce is upset about it basically.

[Mark Joseph Stern]

Right, right. I mean quite literally. Cuz this is similar with the Lisa Cook case and firing executive officials. Right. The Supreme Court is like Trump can fire anyone he want unless they're a member of the Fed. And the Chamber of Commerce is telling us that he's going to start a recession. There's like a very consistent way in which that some of the conservatives deviate from Trump's demands and it's when the corporate community tells them to. But yeah, you know, Gorsuch is concurrence was 46 pages. That is more than twice as long as Robert's opinion for the court. Sam, you mentioned that this took a long time. I think that a huge amount of the time that it took was Gorsuch writing this concurrence that basically attacked seven of his colleagues. And then his colleagues had to sort of like respond to him in turn. And there was all this sniping and footnotes. Gorsuch wanted this to be the arrival of the Major Questions doctrine in a kind of cross ideological way. He wanted this to legitimize the Major Questions doctrine and devoted much of his concurrence to that project. But the three liberals would not go along with it. So even though this was a 6:3 decision against Trump, the six in the majority split, you had Roberts, Barrett and Gorsuch applying the Major Questions doctrine, saying, look, this is a matter of immense economic significance. The President could collect trillions of dollars by using the statute this way. We are invoking the Major Questions doctrine because we think that if Congress wanted to let the President do this kind of thing, it would have said so more clearly. And we're going to demand a clearer authorization than this kind of vague statute before we allow the President to claim this power. And the three liberals, in a really, really great opinion by Justice Elena Kagan, that's like short and sweet. Six pages. Exactly. What the majority probably should have said is like, look, we don't need a thumb on the scale through a made up doctrine in this case. All we have to do is basic statutory interpretation. And you know, Sam, to your point, like I would love it if regulation always included taxes. I'm sure there are a lot of members of Democratic administrations who could could scour the US Code finding all kinds of regulations that, you know, they might try to exploit to impose taxes. But the reality is that there is not a single statute on the books in this country and it seemingly never has been one that uses the word regulate to authorize taxes. Every single time Congress authorizes taxes, it uses additional language that talks about taxes. Never before, I mean, really never has Congress authorized tax passes through the word regulate. And so Kagan said, look, it's simple, it's easy. This is what the statute means. And I'm still not going to embrace or legitimize the major questions doctrine, because I think that that is a kind of illegitimate tool that my conservative colleagues are going to use to try to box in future Democratic presidents when they want to use the administrative state to implement good policies.

[Sam Seder]

Right. So, okay, so, I mean, just, we're sort of going backwards here on some level. But the idea of statutory interpretation and the idea of the extension of regulate to taxation, this gets to the. This is something that the court does on any given basis. Right. I mean, like, the idea of we're just going to take the sort of, like, words in the statute and this in terms of, like, the, the building blocks of a case, this is a rudimentary. This is a rudimentary function of the court.

[Emma Vigeland]

Right.

[Sam Seder]

Like, this goes before the question of could, could Congress authorize the President to have tax taxing authority? Could they delegate that? It goes before that. It's simply like, like, as stated here, we're just following the plain letter of the law, and there is no authority on top of the fact that Congress already had a constitutional authority to tax, and that's not given anywhere else.

[Mark Joseph Stern]

Yeah, it's just basic statutory interpretation, as Kagan said. Now, there's nothing wrong with sort of bringing in constitutional principles to statutory interpretation. Like, one thing that Roberts and Kagan agree upon is that the Constitution assigns the power over tariffs primarily to Congress. And so if Congress is giving away that power to the President, you would expect it to do so in kind of clear terms and with some limitations. And in fact, as we learned on Friday at Trump's press conference, there are other statutes that Congress has enacted that clearly allow the president to impose tariffs. Now, there are more limited tariffs. They're limited in scope and amount and duration. But there have been instances in which Congress told the President, we are giving you the power over tariffs to this degree. You can use it this way. And this emergency statute that Trump wanted to use as a blank check, it just didn't fit into that category. So I agree with Justice Kagan. I agree, I think, with what you're saying, Sam, like, they didn't need the major questions doctrine whatsoever here, because the most basic tools that you learn, like your first month of law school of how to interpret a statute get you where you need to go. And in order to, like, avoid that, you either have to really want to legitimize the Major questions doctrine as the conservatives did, or you have to be a hack like Brett Kavanaugh and just start from the conclusion that Trump can do anything he wants and try to work your way backwards.

[Sam Seder]

And particularly for those conservatives who espouse a strict constructionist perspective on this language and don't believe that Congress has the ability to delegate this authority, would need the Major questions doctrine even less if the major questions didn't exist. And we should remind people of what the Major questions doctrine is. It is a made up doctrine. I mean, they're all made up, but usually doctrines are made up over time through like decades of law. And this one was just sort of introduced like 10, 15 years ago. And it's basically these conservative justices are using it in the same way that we would use like a wild card or a get out of jail free card. Like circumstances be damned. We step in, we throw this down, and we can do anything on some level.

[Unknown Guest]

Right?

[Mark Joseph Stern]

Right. You know, Brett Kavanaugh, I think in his dissent illustrates exactly why these made up doctrines are so dangerous. Because he was a huge proponent of the Major Questions doctrine on the D.C. circuit when he joined the Supreme Court. He's been advoc it for a very long time in law review articles, whatever. And in this case, he decided that it didn't apply because he announced the magical new exception that major questions doesn't apply in the realm of national security or foreign affairs. And so the, the, the wonderful thing about these fabricated doctrines that, you know, put a very heavy thumb on the scale in one direction or the other here, it's almost always against the administrative state, is that when it leads you to a place you don't like, when you're like, oh, no, the Major questions doctrine might, might force me to rule against Trump. You just carve out an exception. You can just make it up. And by the way, Clarence Thomas did a very similar thing in his dissent in this case with something super similar called the non delegation doctrine, which is this idea that Congress can't delegate its core powers away to the executive branch. You know, even if it does so explicitly, it just doesn't have the authority to tell the President, you can use this power however you want. And Clarence Thomas has been advocating for this forever, since the early 2000s. He was like a huge proponent of it. He put out a call to Lowell lawyers in this opinion where he was like, come to me with justifications for the non delegation doctrine so I can strike down all these statutes that empower federal agencies. And then in this case, he announced that the non delegation doctrine doesn't apply to tariffs. Surprise magic. It doesn't apply to the thing that Trump now wants to use without any congressional authorization. So the ultimate kind of trump card, so to speak, with all these doctrines that the conservatives have been making up is that you can always kind of twist it and contort it to get you where you want to go. And the dissenter in this case were like the excellent, most excellent illustration of how that works.

[Sam Seder]

And just to be clear, on the non delegation doctrine, this is where Congress might say, we want people to not be born with birth defects. EPA figure out what things are being, what pollutants are in the air or the water that are causing birth defects and get rid of those. That is, that is something that would be struck down in theory under the non delegation principle. And it's what ultimately struck down the Chevron deference, which was that the court generally defers to the agency. Prior to this, this court defers to an agency because they have expertise on what would constitute a threat to, let's say, birth defects.

[Mark Joseph Stern]

Right, right, exactly. Or, you know, we want cars to be safe. So Congress enacts a law that tell federal agency implement regulations that ensure cars meet reasonable safety standards, or the same thing with planes, the same thing with chemical, whatever. There's a million delegations in the federal code and Clarence Thomas has never before met one that he didn't want to strike down. He's always like, congress can't give away this power. Congress has to spell everything out clearly and explicitly. Federal agencies shouldn't have this much discretion. And then when it comes to Trump trying to seize upon an extremely ambiguous and sort of hazy law to issue any tariffs he wants of any rate and any duration. Clarence Thomas announces a tariff exception to the non delegation doctrine and says that Congress can completely and fully give away its tariff authority to the President forever. I do not think that you can square that intellectually with anything that Clarence Thomas has said in the past 30 years.

[Sam Seder]

So, so let's get to the implications of is if Gorsik didn't need the major questions doctrine to resolve this issue. In other words, it could have been done on what was basically very vanilla Supreme Court rulings in that, like the law doesn't say this, so he doesn't have the authority. But they invoke the special, this major questions doctrine. What is the purpose of doing that from their perspective, like, if they don't need it to strike this down, why do it?

[Mark Joseph Stern]

So, look, yeah, I think I don't have any special insight into what happened behind the scenes, but my sense is that Roberts went into conference after arguments and pushed to get the three liberals to finally sign on to the Major Questions doctrine to legitimize it. Like Emma said, you know, this has been a project of his, along with Kavanaugh and Gorsuch, to really entrench this into the law. But there's long been this footnote because the liberal justices don't endorse it, because they say it's made up, because it is. And so I think this was the case where Roberts and probably Gorsuch really wanted to bring them into the fold so they could in the future say, look, it's not a partisan thing, it's not an ideological thing. This is just how the court does statutory interpretation with a thumb on the scale against federal agencies and delegations. And the liberals just wouldn't play ball. And my guess is that the votes against Trump were firm enough at conference that the liberals understood they didn't need to play ball. You know, if Roberts and Gorsuch had gone to the three liberals and really twisted their arm and been like, we're only going to rule against Trump if you sign on to the Major Questions Doctrine and finally legitimize it, maybe they would have. But I just think it's clear from the way these opinions read that they didn't need to. And so they kind of held the line. And so what we have is like, not a majority to apply the Major Questions doctrine in this case. It's really only Roberts, Gorsuch, and Barrett who say it applies here. And so you know what I suspect Roberts, Gorsuch, and Barrett get out of this? This is that the ability to say in the future, this was not only made up for Joe Biden, we don't only apply this against Democratic administrations. We apply this to all administrations and all presidents of any party. And here's the proof. We used it against Donald Trump. That's what those three really get out of it.

[Sam Seder]

Do you think if there were six liberals on the court and three conservatives and everything was flipped here, would those three conservatives, Gorsuch, Barrett, and Roberts, be pushing for the Major Questions doctrine in this manner, where a liberal court would dictate what would dictate what a president can and cannot do, or Congress, for that matter?

[Unknown Guest]

Matter.

[Mark Joseph Stern]

So Gorsuch wants us to think so. That's why he wrote this 46 page concurrence being like, I really, really believe this. No matter whose ox is getting gored,

[Sam Seder]

no matter if for whatever reason, Thomas and Alito and, you know, and Kavanaugh were hit by a bus the day after, you know, President AOC becomes president, I would still be in favor of the major questions doctrine.

[Mark Joseph Stern]

Yeah, I am skeptical that that would be the case because of course what we've seen over and over again is that the conservative justices are giving a lot more latitude to Trump in his exercises of executive power and creative interpretations of statutes than it gave to Biden. And that's been true of almost every case until now, including major immigration cases like tps, deportation cases, impoundment cases, where Trump is claiming this authority to refuse to disperse federal funds appropriated by con. You know, if Gorsuch really believed in congressional primacy and thought that the courts needed to jealously safeguard Congress's place in the separation of powers, then you would think he would rule against Trump. When Trump takes appropriated money by Congress and freezes it forever and refuses.

[Sam Seder]

It's their primary function.

[Mark Joseph Stern]

It's their number one function. That is what Congress does is appropriate money that the executive branch can spend. We now have the executive branch refusing to spend those funds. And Gorsuch in all of those cases has sided with the executive branch and against the Congress and the would be recipients of the money. So when Trump exercises these, these authorities in an expansive way that Republicans like, as a general rule, the six conservatives side with him. It was in this case where again, to Emma's point, like, you have the Chamber of Commerce, you have the business community, you have all of these very wealthy people saying, please don't let Trump tank the economy, that finally you get three conservative justices, like, recognizing that they should probably rediscover their principles. And so in your hypo, I highly doubt that you would see the three conservatives in the minority on a 6, 3 liberal court pushing for this restrictive interpretation of the law.

[Sam Seder]

And do you think the liberals recognized on the court, what Emma recognized was that, that they're not going to go against. They're not going to. Like, they're going to. They're trying to get us to sign on to the major questions doctrine because they want to build up the. And, and people have to understand that lawyers think a little bit differently. They need to be able to justify to themselves or to their friends or to the institutions that this has some heft as a doctrine. And here's the proof. You know, you had by, by, you know, trans, you know, Cross ideological ide. Cross ideological support of this doctrine. Because they've never signed on to this doctrine before.

[Mark Joseph Stern]

Right.

[Sam Seder]

The liberals have never signed on to this doctrine. This has been a exclusively conservative wielded doctrine. This was their opportunity to get the cross ideological support. But the, the liberals probably also knew that like I'm not going to go against, they're not going to go against the Chamber of Commerce.

[Emma Vigeland]

I read that section from Kagan. That was bitchy. And I say that in a positive way about trying the, the, you put on Blue Sky. That was really good because she was basically saying like f you Gorsuch, like you're not going to rope me into this.

[Mark Joseph Stern]

Right. Gorsuch was trying to claim in a

[Sam Seder]

footnote they had the. Yeah, they knew they had the leverage.

[Emma Vigeland]

Yeah.

[Mark Joseph Stern]

And I think you saw something similar in the Federal Reserve case. Right? Because like when Trump was firing all of these people and the Supreme Court started to say like, oh, you can fire members of the FCC and the NLRB and all these other agencies, but you can't fire members of the Federal Reserve. The liberals called BS and the liberals were pretty blunt. I mean, Justice Kagan was very blunt in saying, like, what the court is doing right now is unprincipled. I am not going to sign on to this distinction that the majority is trying to create between the Federal Reserve and everyone else. It is very clear that the Court is worried about the markets and that is the only real reason why it is carving out the Federal Reserve from Trump's purges. And she refused to endorse it. And she could have, you know, she could have signed on and said, oh yes, well the Federal Reserve has a unique structure and history and our constitutional blah, blah, blah, blah, blah. But the liberals know that John, Brett and Amy are not gonna let Trump purge the Federal Reserve cuz they wanna be able to send their grandkids to college. And so in these cases where they know they have the leverage or they, they sort of know there's a majority for the right position, they are being pretty ruthless and hardball in a way that I admire because I think it, you know, it does telegraph to all of us like we're, they're not going to be strong armed, they're not going to be pushed into legitimizing nonsense, made up doctrines that are sort of gerrymandered to fit Trump's agenda and then draw the line when the Chamber of Commerce says no. They are going to exercise their independence

[Sam Seder]

and what's the value of that? Like what's the value of that, you know, because all well and good, the three justices are writing dissents saying the Major Questions doctrine is bullshit. And your point out that what's the value of that down the road or even now?

[Mark Joseph Stern]

So I mean, to me, down the road, the value is that it will be much easier to overturn these doctrines as precedent and to overturn the precedents in which the they are enshrined. When a future court can say, this was never a cross ideological point of agreement. This was never like not controversial. This was always very contentious, very unsettled. And one of the rules about respect for precedent, stare decisis is that if something remains kind of unsettled and contentious and difficult to apply, then it's more vulnerable to being reversed down the road. So I think the liberals to some degree are planting a flag for a future court which they may or may not sit on. I mean, we could be talk 50 years if it hasn't been replaced by ChatGPT at that point. And they're gonna want a future court to say, this was not unanimous. This does not have the sheen of like broad ideological support. And that's why Gorsuch is fighting so hard the other way. That's why he's fighting so hard to say, no, the liberals agree with me. They just don't understand that they agree with me. Like the gaslighting serves that purpose. As for right now, they're also women. They're also women, Yes.

[Sam Seder]

I mean, they're not going to. By the way, what Gorsic has got going on, it's almost impossible to communicate to women.

[Mark Joseph Stern]

He also goes after Barrett. Barrett wrote a fairly encouraging concurrence here where she was like, you know, I kind of understand the Major Questions doctrine in this case, but I do not think it's doing as much work as Gorsuch wants. And I do not agree that it should always be a thumb on the scale. And it seems like Barrett is actually drifting a little bit more toward the Kagan camp on the Major Questions doctrine. So maybe that's just because Gorsuch doesn't know how to talk to women. But I think that the liberals are sending the message he's operating on a higher level.

[Sam Seder]

That's the thing.

[Mark Joseph Stern]

We will never understand the brilliance of Neil Gorsuch, but I think the liberals are sending a message to litigants today, like, don't cave in on this. Don't just think, oh well, if we can use Major Questions against Trump, everybody might as well accept it. And we are seeing some of that, like Lower court judges on the left have had a lot of difficulty sort of deciding, do we embrace these made up doctrines if they get us to a place where we rule against Trump, where Trump deserves to lose. You've seen liberal litigants invoke these doctrines, and I think Justice Kagan is telling them, don't fall for it. It is a trap. As soon as everybody embraces this, it becomes even more entrenched as precedent and we can never get rid of it. And the reality is we want to get rid of it as soon as we can.

[Sam Seder]

And a circuit judge can cite its dissent. It doesn't have the. But a circuit judge can, you know, it can cite like, this is not a major questions doctrine case. You don't need it. As, as Kagan said in, you know, in learning Resources, if the statute, if this is a simple case of statutory interpretation, you don't need to cite that. I mean, so, so people should understand. This is used as a tool for other courts. It's, it is, you know, when you're, when you're creating this doctrine, it's turning like a, you know, one of those aircraft carriers, it takes, it's very slow. And anything that could slow that role makes it easier to tack back the other way. So what authority remains? And I know there's a little bit outside your portfolio, but what authority remains for Trump to impose tariffs unilaterally without Congress?

[Mark Joseph Stern]

So there's two main statutes that allow the president to impose tariffs. One is for purposes of national security. And both Biden and Trump in his first administration used these against, like China when they felt that the American supply chain needed to have, like, more consistency and they didn't want to be bringing in all these materials from abroad, steel, aluminum, whatever. So, so there are some challenged, at least all not in this case. And I don't even think they were challenged. I mean, that is very clearly within the scope of that law. So the national security tariffs will remain. Now, the particular application of those tariffs is always vulnerable to challenge. And if Trump tries to move it past the kind of basic like supply chain or true national security stuff, and he says, oh, like, you know, this trading partner is a national security threat because their president criticized me, I'm going to slap a massive tariff on the country that would be susceptible to a legal challenge. The other statute here is one that addresses so called trade imbalances and allows the president to impose relatively low tariffs on other countries with which the United States has a trade imbalance, but only for up to 150 days. And after, after that, Congress would have to reauthorize the tariffs or they expire. And we've already seen from the House voting against some of Trump's tariffs. Congress is not going to reauthorize the tariffs. Even this Congress is not going to reauthorize those tariffs. So Trump came out of the gate saying, look, I have these other tools. I can do whatever I want. Brett Kavanaugh kind of egged him on in his dissent. He was like, trump just checked the wrong box. He can use these other tools at his disposal to replace these tariffs. It'll be no big deal, but the clock will be ticking. And if and when Trump tries to get too creative with these other staff statutes, then like the Court of International Trade will have its doors open to a challenge that may well prevail.

[Emma Vigeland]

That's the 15% global tariffs. He's using that justification, section 122. Just to repeat that for people, that means that he has 150 days. That's the time limit. And then you need that congressional authorization. And like, for example, the Canada tariffs, the lumber, the aluminum ones, those are under the separate authority that was instructed down by the Supreme Court. But it was a, it was a majority of them. Like, you know, because these were right, these global tariffs, this was really significant. The ones that were struck down by the court.

[Mark Joseph Stern]

Yeah.

[Emma Vigeland]

These are the ones that Trump just, you know, spouted off and said, like, because this president, you know, bothered me, I'm going to, I'm going to use this as a point of leverage. The ones that are more tailored, like the Canada ones, that's under that authority.

[Mark Joseph Stern]

That's under the other, the other national security authority. Yes. And so the global tariffs, like, even though a lot of them were 10% across the board, he also had some that were like 145% against certain industries. And those are not permissible under 122 authority. So he cannot just on a whim say, I'm going to crush this particular industry in China by imposing a massive tariff tomorrow morning under this authority. It really is much more limited. And there's also these requirements that there has to be an investigation. And the trade envoys have to do all of this kind of like, logistical work. And it's just not, not what he wants. He wants to be able to just go out like on Liberation Day and make up a bunch of numbers and completely upend world trade. And the statutes that actually authorize tariffs do not allow that.

[Emma Vigeland]

And the other part that is not being discussed enough is the refund element, which they basically punted to the lower courts. So the opinion said that like Perhaps it's like $175 billion that is deemed like a legal tariff, money that was collected. But the court didn't really address that. They, they said that the courts are going to have to deal with on a case by case basis. And then Scott Besson goes out there. Another gift to the Democrats for the midterms for clips and is like the American people aren't going to see any of this. And it seems like that's true. The Ludnicks will.

[Mark Joseph Stern]

I mean it is true because it's going to be corporations that get that money. Right. The corporations and pass it along.

[Sam Seder]

The corporations are going to get the money, but they're going to then reduce prices for Americans because they're not going to keep those extra profits.

[Mark Joseph Stern]

Never, never. We would never, ever see in this free liberal democracy, corporations trying to maximize shareholder value rather than setting fair market prices for consumers. That would be unprecedented.

[Sam Seder]

I think, I think we should also, we should also, I mean obviously it's, it's, it's sort of self evident that, that, that capitalists are not going to refund money to the American public by way of like we're going to do a six month thing where we lower prices or something. Like they're not going to do that.

[Mark Joseph Stern]

No.

[Sam Seder]

But also the fact that these refunds could be securitized because people. Emma just referenced it. We know the Lutnick sons, Uday and Kusay purchased the rights.

[Emma Vigeland]

Yes.

[Sam Seder]

To any future refunds from. We don't know how many people. We don't know worth how much. Many hundreds of millions of dollars. But they bought these rights at $0.20, $0.30, $0.40 on the dollar. If there are refunds, it wouldn't go to the corporations. The corporations have already sold off their right to those refunds. So they've, all those corporations have been, you know, they paid, they got paid 20 or 30 cents kick back to the them.

[Mark Joseph Stern]

Right.

[Sam Seder]

The rest of the money would go to Uday and cousin or people like them. And so the, the question of like this is going to be resolved. Kavanaugh said, like, I don't know how we're going to be able to figure this out, but there's going to be millions of dollars behind figuring out how to. Because for Uday and Kouse, if they've paid 20 cents for a dollar's worth of refunds, they have every incentive in the world to go out and spend another 50 cents to get, you know, they'll still make 30 cents off of the. Off of that dollar.

[Mark Joseph Stern]

Yes. And a relatively small number of lawyers who specialize in suing for tariff refunds are about to buy their third and fourth McMansions off the legal fees they're going to collect, because this has been a specialized area of law, mostly of interest to. To importers and exporters. And now suddenly, it is going to be a $200 billion market. And even just set aside, like those who created these very fishy contracts to sort of get these kickbacks in exchange for a corporation betting that it wouldn't get tariff refunds. There are a lot of corporations that are doing kind of political calculus here, too, saying, I don't want to piss off the Trump administration even more. I don't want to risk new tariffs against my industry under these other. Should we just leave the money on the table and not collect it? So you know it's gonna be messy. But the mess is entirely because the Trump administration pulled the trigger on illegal tariffs before bothering to, like, really figure out if they were lawful. And that was on purpose, of course. And how this will all shake out in the lower courts is anybody's guess. Some people will get very wealthy. Some people will walk away with nothing. But what we will probably see as this unwinds is that there was a lot of corruption behind the scenes. There were a lot of people who were essentially shorting the tariffs. Right, Like Uday and Koussay. And some of those people have direct connections to the administration, and they will, of course, face no political or legal consequences because corruption is now just the way the game is played in American politics.

[Sam Seder]

Mark Joseph Stern. Couldn't have said better myself. Senior writer covering courts and the law for Slate, co host of the Amicus podcast with Dalia Lithwick. Thanks so much for your time today. We'll put links to both those in the podcast and YouTube description. Really appreciate it.

[Mark Joseph Stern]

Thanks so much. Anytime.

[Emma Vigeland]

Thanks, Mark.

[Sam Seder]

All right, folks, all wrapped up in a nice little bow. Everybody's gonna make money except for all of us.

[Emma Vigeland]

And see, I'm not the only one who gets energized. Talking about the Major Questions doctrine, Brian.

[Sam Seder]

Really? You've brought that up about six times since I laughed at you for laughing at that. What's that? The major question. The. I always say her name wrong.

[Emma Vigeland]

Elena Kagan.

[Sam Seder]

Elena Kagan.

[Emma Vigeland]

Okay.

[Sam Seder]

Well, you know, her clapback really tickled Emma, and I found it to be one of the Emma's like Washington.

[Emma Vigeland]

I got a little embarrassed. That's why I keep Bringing it up. I keep bringing it up because I got a little embarrassed for being so ridiculous.

[Sam Seder]

The thing is, it's very hard. It is hard for people, I think, to get to wrap their heads around how this works, because on one hand, these six members of the conservative court are going in and doing whatever they want. They are, are not bound in any way. They got rid of the first time in the history of this country where an individual right has been rolled back in Roe v. Wade. They seem to have absolutely no guardrails limiting principles, no restrictions. But they do. It's just wrapped in this sort of very vague mentality of where they're like social capital exists. Right. Like, they have the job forever until they die. Presumably some of them might have the wherewithal to retire before then, but in most cases, not the case. And we saw that with Ruth Bader Ginsburg. They have all the sinecures that they are going to get. I mean, you know, Harlan Crowe has basically rocked Clarence Thomas in his arms like a little baby and, you know, provided for his mother's, you know, has a house and his step kid or his kid has, you know, went to private school and he goes on all the trips he could ever want on private jets and all this. And so you're like, well, why, like what? Why would they not just, just do whatever they want now? Some of them do, but some of them also were just like they're raised as lawyers.

[Emma Vigeland]

Yeah.

[Sam Seder]

And Emma and I both understand this sort of like, cultural dynamic, like, pretty well.

[Emma Vigeland]

Yeah.

[Sam Seder]

They think that they're priests in some way. And like the, there's a narcissism that, that where they feel like we're the guardians of the crypt of the, of the civil religion and.

[Emma Vigeland]

Right.

[Sam Seder]

And the Lord of the, the Lord of the legal world will strike us down. And so they're torn. They're torn by that. And so Roberts, like, why else would Gorsuch, you know, feel like we need to get these on board now? Part of it is because, because down the road, and again, it could be 50 years where there's a liberal majority. Hopefully, you know, there's a bus somewhere or a hurricane or a tornado or a tree limb. Will, will, will, will speed things up. But down the road, those justices are going to look back at what Kagan writes. KBJ is great in this way.

[Emma Vigeland]

Yes.

[Sam Seder]

Because she has been, she knows from, from, from jump her first day. She know that this is probably the only function I'm going to serve on this court. Maybe down the road I'm going To be the elder statesman on this court who's going to be able to look back on these writings and use them as justification to change the laws and go back to, you know, a more reasonable and one that has more soundness and more integrity.

[Emma Vigeland]

And I think it's also just so important to point out that this major questions doctrine, as is the case with these other kind of conservative legal fictions, are designed to empower the conservative forces and the right to give themselves more leeway in these scenarios that are inherently subject, objective but they act like priests and as if this is this sort of, you know, this almost science that they're engaging in when they're working backwards from political conclusions and then coming up with things like the major questions doctrine. So it's, it's interesting to see that fight within the legal world and how you have to hold a line to not allow for the replication of certain ideas. Because like as it originalism is a great example. I was talking about this with Rachel Cohen, little bit like it, once it is incorporated and built into the case law there is a compounding effect that legitimizes it and it becomes a more well used tool in the disposal of the conservative legal apparatus. So you have to have warfare in the trenches on this at least.

[Sam Seder]

You know, it's also, I mean the best thing for this stuff is that it's so it is a good way to study the way that ideologies get entrenched and the way that ideas grow and have implications because it's, there's a lot more sort of like elements that are controlled when you follow these doctrines. Like the, we've talked about this in the past the doctrine of discovery, which was a papal Eden as to why Christians could go and take land from indigenous people. And it made its way into the US law in like the early 1800s and was cited as recently as 2005 by Ruth Bader Ginsburg, but not as the doctrine of discovery but of the case law that emanated from it. So it's so far away from the doctrine of discovery, she herself doesn't even have to acknowledge it. Yeah, probably knew on some level the history of that. Probably, but not necessarily cites that law and it is traveled so far and

[Emma Vigeland]

that KBJ understands that fundamentally as well.

[Sam Seder]

So she understands that very well.

[Emma Vigeland]

Like, and that's I think one glimmer of hope here is not using, you know, being conscious about the justifications that you're using. Not you know, because in the future it's going to be important that it's not legitimized by a justice like herself. So

[Matt Lech]

Supreme Court has destroyed this country's democracy with Citizens United case and it did so in the 1800s with the dred Scott case. It should not be a co equal branch. I guess we're stuck with that because of the Constitution. But we should do whatever we can to minimize its role in having there's

[Sam Seder]

certainly a role in this. There's certainly a way to minimize the power that nine individuals have. Right. Like you could easily expand the court. Just adding four people would would. Would increase the in it would be very consistent with the way that the Supreme Court was designed in the first place. Place. There is no number attached to the Supreme Court in the Constitution. It was originally the number of people on the court were to represent the different circuits around the circuit courts around the country. There are now 13 circuit courts. So it would make sense to expand it. But yes, it is one more element in our Constitution that is anti democratic and and but you know reform would be a good thing and I can imagine it should be the bare minimum

[Matt Lech]

that 100% politician talks about anyone thinking that if in 50 years we're still talking about nine justices and they're all chosen by oligarchs like we'll be in a worse position than we are in 2026 and that should alarm people.

[Sam Seder]

Okay folks, we're gonna head into the fun half. Just a reminder to your support that makes the show possible. You can become a member by going to join themjorport.com when you do, you not only get the free show free of commercials, but you also get the fun half wherein you can IM us. I had to a little rusty. I had to think about that. Which part do you get if you remember Also just copy Coffee co op, fair trade coffee, hot chocolate. Use your coupon code majority get 10% off. Check it out. Just coffee co op Matt what's happening in the Matt Leck media universe?

[Matt Lech]

Left reckoning tomorrow got Daniel Bessner talking about Cold War liberalism. Also I did a little solo left reckoning Sunday show talking about Karl Marx's writing on the American Civil War and you'll be interest leftists will be interested to know that Karl Marx had the right position on the Civil War which is that the south was fighting to protect slavery and they should be crushed brutally. And the Economist magazine had the wrong take which is that it wasn't about slavery at all. It was just about tariffs and stuff like that. Y' all getting moral about it are wrong. So it's interesting how more stuff changes, the more it stays the same.

[Emma Vigeland]

I have a plug as well if you haven't yet. You're in the LA area. In the LA area. You'll want to see the Bituation rune live featuring me and other people that I'm hearing about. Special guests to be announced. I'm going to be at Dynasty Typewriter. And you want to keep going? Just pick one. March 22nd, Sunday matinee. Yes. And I'll be there with Francesca Fiorentini.

[Sam Seder]

It's a matinee.

[Emma Vigeland]

My matinee. Drinking in the afternoon. March 22, Sunday.

[Sam Seder]

Not what I was. Okay.

[Mark Joseph Stern]

That's a real thing.

[Sam Seder]

There you go.

[Emma Vigeland]

I mean, Francesca really emphasized that. She's like, we'll still be drinking. All right. Okay.

[Unknown Guest]

All right.

[Emma Vigeland]

Good to know.

[Matt Lech]

I've been hearing about Dynasty Typewriter and all these podcasts all of a sudden,

[Emma Vigeland]

I guess it's a thing. I don't know enough.

[Sam Seder]

I don't know enough about a long time.

[Emma Vigeland]

Yeah.

[Sam Seder]

What about the other podcast that you're on?

[Emma Vigeland]

Oh, well, it's not out yet, but I mean, sometime this week, my Doom scroll episode should. Should be up as well.

[Unknown Guest]

Okay.

[Emma Vigeland]

All right.

[Sam Seder]

All right, folks. See you in the fun half. Three months from now, six months from now, nine months from now. And I don't think it's going to be the same as it looks like in six months from now. And I don't know if it's necessarily going to be better six months from now than it is three months from now, but I think around 18 months out, we're going to look back and go like, wow. What? What is that going on? It's nuts.

[Jacob Soboroff]

Wait a second.

[Sam Seder]

Hold on. Hold on for a second. Emma, welcome to the program. Unpack, Matt.

[Unknown Guest]

Boo.

[Sam Seder]

Fun hack. What is up, everyone? Fun hack.

[Mark Joseph Stern]

Nomi Keen, you did it.

[Sam Seder]

Fun half.

[Emma Vigeland]

Let's go, Brandon.

[Unknown Guest]

Let's go, Brandon.

[Sam Seder]

Fun crap. Bradley, you want to say hello? Sorry to disappoint everyone. I'm just a random guy. It's all the boys today.

[Emma Vigeland]

Fundamentally false. No. I'm sorry.

[Unknown Guest]

Women.

[Sam Seder]

Stop talking for a second.

[Emma Vigeland]

Let me finish.

[Mark Joseph Stern]

Where is this coming from?

[Emma Vigeland]

Dude?

[Sam Seder]

But. Dude, you want to smoke this? 7A.

[Unknown Guest]

Yes.

[Sam Seder]

Yes.

[Unknown Guest]

Is this me?

[Sam Seder]

Is it me? It is you.

[Unknown Guest]

Is it me?

[Mark Joseph Stern]

Hello?

[Sam Seder]

It's me. I think it is you. Who is you? No sound. Every single freaking day. What's on your mind?

[Emma Vigeland]

Sports.

[Sam Seder]

We can discuss free markets and we can discuss capitalism. I'm gonna go snow White.

[Unknown Guest]

Who?

[Sam Seder]

Libertarians.

[Matt Lech]

This so stupid.

[Sam Seder]

Though common sense says, of course. Gobbledygook we nailed him.

[Emma Vigeland]

So what's 79?

[Sam Seder]

21 challenge.

[Mark Joseph Stern]

Man, I'm positively quivering.

[Sam Seder]

I believe 96. I want to say 85721 0, 35, 5011 half. Three eight, 911.

[Matt Lech]

For instance.

[Unknown Guest]

$3,400.

[Emma Vigeland]

1900 dollars.

[Sam Seder]

Five four, $3 trillion. Sold. It's a zero sum game.

[Emma Vigeland]

Actually. You making me think less of wait,

[Sam Seder]

but let me say this. You call it satire. Sam goes satire.

[Mark Joseph Stern]

On top of it all.

[Sam Seder]

My favorite part about you is just

[Emma Vigeland]

like every day, all day, like everything you do.

[Sam Seder]

Without a doubt. Hey, buddy, we see you. All right, folks, folks, folks.

[Emma Vigeland]

It's just the week being weeded out, obviously.

[Unknown Guest]

Yeah.

[Sam Seder]

Sun's out, guns out. I. I don't know.

[Emma Vigeland]

But you should know,

[Sam Seder]

people just don't

[Matt Lech]

like to entertain ideas anymore.

[Sam Seder]

I have a question. Who cares?

[Matt Lech]

Our chat is enabled, folks.

[Sam Seder]

I love it.

[Emma Vigeland]

I do love that.

[Sam Seder]

Gotta jump. Gotta be quick. I gotta jump. I'm losing it. Probably two o', clock. We're already late and the guy's being a dick. So screw him. Sent to a gulag.

[Emma Vigeland]

Outrageous.

[Sam Seder]

Like, what is wrong with you?

[Unknown Guest]

Love you.

[Jacob Soboroff]

Bye.

[Sam Seder]

Love you. Bye bye.