Podcast Summary: "Smoot, Hawley, and Trump"
Podcast: What Trump Can Teach Us About Con Law
Host: Roman Mars
Guest: Professor Elizabeth Joh
Episode Date: September 27, 2025
Overview
In this timely episode, Roman Mars and Professor Elizabeth Joh explore the constitutional history of tariffs in the United States, tracing their political, economic, and legal implications from the infamous Smoot-Hawley Tariff Act of 1930 to President Trump’s recent efforts to impose sweeping tariffs using presidential emergency powers. The conversation serves as a case study in how Congress and the executive have negotiated (and at times, conflicted over) the control of economic policy, particularly during times deemed "emergencies," and what this reveals about broader constitutional norms. The episode culminates in a discussion of pending Supreme Court cases that could redefine the scope of presidential power and the future of the separation of powers doctrine.
Key Discussion Points & Insights
1. Cultural Flashbacks: Censorship, Smoot, and Hawley
- Opening Literary Analogy: Professor Joh begins with Lady Chatterley's Lover, once banned for obscenity, as a lens to view American anxieties about government overreach and "protecting" the public (00:38).
- Senator Reed Smoot’s Legacy: The anecdote about Smoot's passionate Senate opposition to obscenity and Ogden Nash's satirical poem ("Senator Smoot is an institute not to be bribed with pelf...") sets up the intersection of moral and economic legislation (03:29).
- Smoot-Hawley Act: Introduced as a well-intentioned but catastrophic tariff law, the act led to international retaliation and deepened the Great Depression—infamously referenced in pop culture (Ferris Bueller's Day Off) and still a cautionary tale for policymakers (04:50).
2. Constitutional Foundations: Who Controls Tariffs?
- Congressional Power: Article I gives Congress, not the president, the power to levy taxes and regulate foreign commerce, with tariffs historically being the primary source of federal funds (06:39).
- Changing Funding Models: Ratification of the 16th Amendment (income tax) made tariffs less central for federal revenue, but their use shifted to economic policy (07:34).
3. Delegation and Expansion of Presidential Powers
- Administrative Complexity: Congress, recognizing the complexity of international trade, delegated regulatory functions via the International Trade Commission (08:51).
- Trading with the Enemy Act (1917): Gave the president broad emergency powers to impose economic penalties, especially in times of declared national emergency (09:07).
- Nixon’s Precedent: Nixon’s invocation of the act to impose a 10% import tariff during the 1970s inflation crisis was controversial but ultimately upheld—paving the way for future executive action (10:09).
4. The International Emergency Economic Powers Act (IEEPA or "AIPA")
- Congressional 'Clawback': Passed in 1977 in response to perceived executive overreach, IEEPA attempts to limit the president’s emergency powers but is vague about what constitutes a "national emergency" (11:04).
- Ongoing Use and Loopholes: Since 1977, presidents have routinely declared emergencies under IEEPA, often without Congressional oversight (12:30: "Congress has never once terminated an emergency declaration under IPA against the wishes of a president.").
5. The Trump Tariff Controversy
- Scope and Justification: Trump invoked IEEPA to impose broad tariffs (e.g., reciprocal tariffs of at least 10% on nearly all trading partners) on the grounds of combating fentanyl trafficking and correcting the US trade deficit—stretching the "emergency" rationale (12:58, 14:08).
- Legal Challenges: Small businesses and states sued, arguing IEEPA does not explicitly confer tariff authority to the president (15:01).
- Court Rulings: Both the Court of International Trade and a federal appeals court ruled against Trump: "Tariffs are presumptively Congress's responsibility, not the President's" (15:49).
6. The Major Questions Doctrine & Supreme Court Implications
- Connection to Student Loan Forgiveness: The episode draws a parallel to Biden's attempt at student loan forgiveness, struck down by the Supreme Court on grounds that Congress hadn’t been explicit in delegating such sweeping power—introducing the “major questions doctrine” (19:02-20:31).
- Doctrine Defined: Courts will not assume Congress meant to delegate immense authority to the executive unless Congress has been undeniably clear, especially for matters of "deep economic and political significance" (20:31).
- Potential Supreme Court Decision: The Trump tariff case hinges on whether imposing global tariffs for an "emergency" meets the threshold for a "major question;" if so, and the court is consistent, Trump should lose (22:29–23:11).
7. Broader Constitutional Stakes
- Separation of Powers: This is not just about tariffs—it's about whether Congress can meaningfully check the executive, and whether notions like "emergency" have become too easily manipulated to grab power (24:16, 27:26, 30:02).
- Role of Partisanship: Deep political polarization often reduces Congress’s willingness to assert its constitutional prerogatives, creating imbalances the founders sought to avoid (30:47–31:57).
Notable Quotes & Memorable Moments
-
On Smoot’s Senate Righteousness:
"I'd rather have a child of mine use opium than read these books."
— Senator Reed Smoot, paraphrased (02:10) -
On Congressional Delegation and Emergencies:
"Congress has never once terminated an emergency declaration under IPA against the wishes of a president."
— Prof. Joh (12:30) -
On the Supreme Court and major questions:
"If Congress is going to give the executive branch some very big power, they have to be clear about it."
— Prof. Joh (20:31) -
Paraphrase of Supreme Court’s jab at executive overreach in student loans:
"The Biden administration was, and I'm quoting here, modifying student loans only in the same sense that the French Revolution modified the status of the French nobility."
— Prof. Joh (23:11) -
On the political reality of checks and balances:
"It's called the separation of powers for a reason...what happens when you have extreme partisanship across two branches, maybe three? There is no interbranch checking going on."
— Prof. Joh (30:47) -
Roman, on constitutional lessons and cynicism:
"The pattern of siding with Trump makes me fearful for the outcome of this case."
— Roman Mars (24:16)
Timestamps for Key Segments
- [00:38] Opening: Lady Chatterley’s Lover and Senate censorship debates
- [04:50] Smoot-Hawley Tariff Act origins and economic impact
- [06:39] Constitutional basis for Congress’s tariff authority
- [08:51] Delegation to the president: International Trade Commission, Trading with the Enemy Act
- [11:04] Passage and limits of IEEPA
- [12:58] Trump’s invocation of IEEPA for reciprocal tariffs
- [15:49] Lower court rulings against Trump’s tariffs
- [19:02] Comparison with Biden’s student loan forgiveness and the HEROES Act
- [20:31] The Major Questions Doctrine explained
- [23:11] Federal appeals court comparison to the French Revolution
- [27:26] Congress’s abdication and the rise of presidential "emergency" power
- [30:47] The fading adversarial nature of separation of powers and rise of partisanship
Style & Tone
The episode is casual, thoughtful, and sometimes lightly sardonic—grounding complex legal concepts in stories, pop culture, and historical context. Roman Mars plays the curious learner, while Professor Elizabeth Joh distills dense constitutional law with clarity and relatable analogies. The mood is urgent but not alarmist, finishing with a bit of literary levity through Tom Lehrer's satirical song about censorship.
Conclusion & Takeaways
This episode frames the Trump tariff debate as a moment of constitutional reckoning: How much power can the president exert under the guise of “emergency,” and will the Supreme Court apply its own recent logic even-handedly? The broader implication: American democracy depends not just on rules, but on the willingness of each branch to defend its constitutional role—something that history (from Smoot to Trump) suggests can’t be taken for granted.