Trump RUNS SCARED as SCOTUS Prepares PRESIDENCY ENDING RULING?!?

Welcome to a special edition here on Legal AF. We're in the aftermath, the afterglow, if you will, of a Supreme Court oral argument on a landmark issue. Will the Trump tariffs, which form the centerpiece of really his entire domestic and foreign policy, will they be torn down by the Supreme Court? And we got a little glimpse of it during a more than two and a half hour oral argument. And fortunately for our audience,

it's not just about the reporting. I did listen to it. We had it up on Legal AF, the two and a half hours. And we have somebody with a vested interest here for America who's actually in the room, the proverbial fly on the wall, who got to hear and see things and observe things that maybe were missed.

And that's why I wanted to bring in Attorney General Rob Bonta for California, and also my colleague Adam Klossfeld of All Rise News to brief our audience from this perspective about, I don't want to say you're a litigant, but you're there, the Oregon Attorney General, one of your colleagues did argue today. And so Attorney General Bonta, why don't we let you kick it off here?

You're in the room, it's been reported as a hot bench, a skeptical bench against John Sauer, the Solicitor General for the United States, took on a lot of water in his argument, like we like to say. But what was your, how did you see it in terms of the questioning and what you can glean from maybe some of the positioning of the various justices?

I don't disagree with the commentary that's been, that you've just shared. I think there was a healthy dose of skepticism from the bench as to that you've just shared. I think there was a healthy dose of skepticism from the bench as to the federal government's position. I think Mr. Sauer had a really tough argument to be trying to make, and I don't think it was landing very well

with most of the justices. I thought that the key components of the argument of the states and the private plaintiff, as set forth by Mr. Gutman and Mr. Katyal, was very well established. There was a really good inspection

of all the different arguments by the court, a great and healthy dialogue back and forth, a lot of interest, a lot of engagement, and I think that bodes well for a good and accurate analysis here.

But what really came through was this idea that a tariff is a tax and the power to tax lies squarely within the authority of Congress in Article I of the Constitution. It is a quintessential authority and power of Congress that is treated differently than other authority.

And IEPA, the International Emergency Economic Powers Act, upon which Trump relies for his very broad sweeping tariffs from 10% to 145% against over 200 countries, and that the American people are paying and deserve better. That statute never mentions the word tariff once, and in nearly 50 years of existence, has never been used by any president to impose tariffs. So with that sort of plain and unambiguous language, with that

historical context, and also with legislative history, which doesn't talk about giving the power of tariffs to the president in IEPA, it was a really strong argument for the states and a tough one for the federal government. There was some discussion about the non-delegation doctrine and the major questions doctrine. And basically, if the authority of Congress is gonna be given in part or in whole to the president,

it must be clear in its delegation, it must be explicit. And it must also have some guardrails around it, some guidelines, sometimes they can be limits on how much the tariff can be, or can be limits on how much the tariff can be or a temporal limit on how long the tariff can last. And none of that exists in IEPA. And that all came out in the questioning. So I'm very hopeful for a positive outcome. I came in,

believe we had much better of the case. I left the chambers feeling the same, and maybe even a little stronger. And I think that the arguments by the federal government that this is a these tariffs are foreign facing and the president should be given great deference and broad authority when they take actions that are foreign facing just as it is too overgeneral and not tight, precise enough, not rooted in law enough. Maybe it was the best argument they had,

but I don't think it landed with the justices.

I have one question, then I'll turn it over to Adam. If most of the reporting and people like me and Adam that listened intently to the oral argument focused on the questioning of Amy Coney Barrett and Neil Gorsuch as sort of a bellwether as to how the administration was doing.

Was there a certain question and answer of either or both Amy Coney Barrett or Gorsuch that for you was telling?

Yeah, for both of them. And let me just focus on Justice Barrett first. She spent a lot of time asking about the word license and its existence in IEA. And there was discussion from the justices about the fact that it's a noun, not a verb, and it's not a licensing fee, it's just license as in giving permission or authority. And I thought it was a good,

healthy dialogue, and she was trying to figure it out. I don't think that was an argument made by the federal government. It was something that she came up with and wanted some trying to figure it out. I don't think that was an argument made by the federal government. It was something that she came up with and wanted some answers to as she's entitled to as a justice of the United States Supreme Court. But it sounded like she landed on the belief that a license is permission or authority,

not a fee tantamount or akin to or similar to a tariff. And so that, from my perspective, hoping that the states will win, that my team will win, I can live with that. And that seemed like a positive outcome. For Justice Gorsuch, you know, he was asking a lot of questions that maybe cut both ways for both the federal government and for the states. But there was a moment for me, which I

called it when I saw AG Mays right after the hearing and we did some talking to the press. I described it as a mic drop moment and I still think it is when Justice Gorsuch basically said to Oregon Solicitor General Gutman that the power to tax is quintessentially a power of Congress. It's rooted in the history of the founding of this nation, dating back to the the Revolution, and that we believe so strongly in that power to tax that we didn't even think that Parliament should be able to impose

taxes, that it needed to be more local, and you can't have taxation without representation. And it lives as a very powerful and specific authority with Congress and only Congress. And Mr. Gutman, sometimes you say a lot by saying very little and he said, yes, Justice, I agree.

We agree. In fact, let's show the audience that clip because we can play

that clip. Let's roll the clip. It does seem to me, tell me if I'm wrong, that a really key part of the context here, if not the dispositive one for you, is the constitutional assignment of the taxing power to Congress. The power to reach into the pockets of the American people is just different. And it's been different since the founding and the Navigation Acts that were part of the spark of the American Revolution, where Parliament asserted the power to tax to regulate commerce. Some of those were revenue-raising. Some of them didn't raise a lot of revenue.

We had a lot of pirates in America at the time. And Americans thought even parliament couldn't do that, but that had to be done locally through our elected representatives. Isn't that really the major questions, non-delegation, whatever you want to describe it, isn't that what's really animating your argument today?

Okay, so that for you, in fact, before we join, I think that landed with Adam Classwell, my colleague, because he and I were debating a little bit about what we just watched.

And Adam, why don't you take it from there? Well, Neil Gorsuch, I agree, that was a mic drop moment because he said it was an animating force behind the American Revolution, accurately, and why tariffs are different. There was a lot of questioning from all of the justices about, well, if Trump has the authority to shut down trade between nations, why can't he put a tariff or a tax?

Said, well, it's not a question of degree, it's a nature of it. Your colleague, Attorney General, made a funny remark that it's not the donut hole that the government has it.

It's a different pastry.

It's a different pastry, exactly. Everybody was hungry apparently.

It was a great line.

It was a great line. But I'll also say there was a different Amy Coney Barrett moment that stuck with me. And she said, if you win, referring to you, the states and the small businesses, how are the reimbursements going to pan out? And that is a really interesting line because Trump has promised from the DOJ, has had to promise in order to not be blocked in the tariffs that they were going to give these refunds. She asked, is it going to be a complete mess? And Neil Katyal had to admit, yeah, it might be a mess, but that is not the reason to uphold

something that's unlawful. Or he also gave the bid out, right, Adam? He also said it can be prospective, not retroactive. Let them keep the several hundred billion dollars, but let them in the future stop with the program. And I think that was a good concession by Katyal and an out for them. Look, this is gonna be unscrambling this egg. 90% of a worldwide trade right now passes through some sort of Trump tariff.

And so if you're going to get rid of it, there are going to be ramifications, but that can't be the justification for a finding that it was illegal and ab initio at the start.

Right, and I have just a quick follow-up for Attorney General Banda on that, because I think it would be cold comfort if the Supreme Court came down and said, yes, it's prospective, and you small businesses, you people of the United States,

you're out of luck for all of these taxes that the president unilaterally imposed on you. So if there were some kind of just resolution, if the Supreme Court strikes down these tariffs and pays back the people who were taxed without representation in Congress, how do you see it working, Attorney General? Would this, what would be justice for the people of the great state of California?

Well, let me just first say that I agree that that was an important moment from Justice Barrett. If you're moving downfield and passed a decision on lawfulness and getting into remedy, talking about refund and reimbursement, that's a good place to be from my perspective as a state

with the position that we've taken in the case. I agree with Michael that there could be a splitting of the baby, if you will, an out, if you will, where the remedy is perspective only. I think that would be cold comfort to Americans and Californians who will have a U.S. Supreme Court say that these tariffs were unlawful, and they will feel victimized by an unlawful action by a president with no remedy. If someone does something unlawful, there should be accountability.

If someone is harmed, they should be healed, and they should be given restitution. It could be messy, it could take time, They might have to apply for it. They might have to show the harm that they endured, but they should be able to receive some sort of reimbursement or refund. So I think it would definitely be better than ongoing tariffs,

because if the tariffs are prospectively terminated, then we're back where we have certainty. We have predictability. You can do long-term planning. You could do capital investments as a business. You can hire people and know what the economics are

going to be. And you can grow. You can expand. So there's a lot of good that can happen from a prospective termination of these tariffs. And invalidation of them is unlawful.

But I think just common views of fairness would leave people feeling a little empty and wronged and honestly victimized if they didn't have a chance to get reimbursed for the harm that was visited on them by a president acting unlawfully.

Where do you think Roberts is in all this? I wish I had Lisa Graves on here, who's wrote a great book about John Roberts and the court. In the beginning, he talked about, he seemed to concede that the major questions doctrine would be in play here,

and also questioned when Sauer kept mentioning this one case precedent over and over and over again. Roberts said, I don't understand how that even helps you. That case was so limited in its scope to just the facts of that case, yet you seem to rely so heavily on it. And I don't think that's actually helping your argument.

So where do you think Roberts is in all of this?

I think he was in the healthy skeptic group, who thinks that it's definitely not clear that the president was delegated the authority or has the authority under IEPA to impose tariffs. And they really inspected this issue a number of different ways. They looked at the plain and unambiguous language,

and then they looked at legislative history, and they looked at history. Has any president imposed a tariff using the statute before? And then they looked at originalism and the founding of our country. Then they looked at the US Constitution.

And I think where it ends up is, I believe and hope, a majority of the justices, based on their questions and comments, think that the power to tax lies squarely in Article I with Congress and that the president is exercising it as if it's his authority when neither the statute nor any congressional delegation affords him that right. And I think that's where Justice Roberts is. I always listen to the first few questions. I think

you can get a good indicator of where people are. They have statements in their questions from the bench, and those are telling and revealing and I thought early on that Roberts was very sympathetic to the state's argument and very suspect of the federal government's

argument. Yeah, sometimes you have to be in the room, that's why I loved having you on now for the audience because you got to be in the room for some of this. You can listen to it but when you see the body language and the eyebrow go up and how they interact with each other, you pick up so much color right from being in the room like

that. Another person who I thought was in the room today and I would love to have been a fly on the wall to see it was Scott Besant who was interviewed on CNBC and was asked point blank on CNBC, hey, how would you feel if a Democratic administration used this awesome power by declaring a climate emergency and then have vast control of the economy?

And multiple justices asked that question.

What was the reaction?

They watched CNBC. I think it was a vast Supreme Court subtweet of Scott Bissett.

I was just going to say Sowers said, well, this administration would disagree that there's a climate emergency. That's how desperate he was in that argument.

Yeah.

I challenge the basis of your question. I thought it was really interesting. Multiple justices asked that question. And I thought embedded in that question was, if turnabout's fair play, can you live with it? And this applies to, you know,

this administration applies to the next administration. And I thought also that the backdrop and context of last night's elections make that more real. Like this could be flipping very quickly with a new, certainly a new house, but maybe a new president. And maybe if the shoe's on the other foot,

is that something that you would accept? You argue this position now because you want the outcome, but used if the principle applies with the next president, if that president is Democratic, it could very much mean declaring an emergency that Sauer and the federal government think that their declarations

of emergency are non-reviewable. If they are reviewable, they are due high deference. I agree that they are due high deference, but they can't be made up. And they don't have full and unfettered discretion. And the emergency could be a climate emergency, and there could be tariffs put

on gas guzzling vehicles coming in. And is that something they can accept?

I thought that was a pointed and excellent question. I like what Sokta Mayur said this hour. Joe Biden could have declared a climate emergency and then forgiven student loans.

To your point, Attorney General, I do wonder, so in light of last night's elections, in light of the fact that California, the government prevailed in the passage of Proposition 50, if the common wisdom about how today's oral arguments went in the tariffs litigation is incorrect and Trump wins,

should the next Democratic administration that has this power pay attention to that principle that you just articulated, turnabout is fair

play?

Maybe. You know, I don't always think that using turnabout as fair play gets us to the place we should be as a country. And I think we should do things that are good for the American people. I don't think we should just always be concerned about, you know, getting even or if they did it, then we should do it.

I think we should give the American people whatever they need and whatever they deserve. They deserve a government that works for them, that fights for them, that sees them, that doesn't make their prices go higher when they are screaming at the polls they want their prices lower. That's what Trump did. He promised lower prices and he gave people higher prices, not just on policy but through unlawful action. So, you know, I hope that if there is a flip in the house and a democratic president, we are able to stand down when appropriate

and not just try to get even and not just do the things that others did, but do what is best and what is right and what will advance us as a United States of America.

Attorney General Rob Bonta joining Legal AF along with Michael Popok and Adam Klossfeld. You're the person at the right time at the right moment here in history. We're so fortunate to have you fighting the fight for the states. It's one of the leaders of the Attorneys General out there in courts every day for Americans. You had a huge win yesterday in Rhode Island about immigration policy and

grants related to transportation. You know, your organization that you're a big member of has won 93 percent or 90 percent of the time, and now you're even getting final trial judgments in your favor for the American people. And to have you in the room today was so important. For those that have been at the Supreme Court, it's not a big room. And so I was really glad to see that ultimately

you were there and you didn't see Donald Trump there, right?

Did not come. Wasn't complaining about that, but he was not there.

Yeah, which is, I think is another signal that we'll talk about offline. But I'm so glad that you're here on Legal AF. And we'll look forward to talking to you again with other things that are happening. A new lawsuit against Prop 50 got filed today. I'm sure you and I will talk about that at some other time. Thank you, AG Bonson. Thank you very much. Michael Popak and Adam Klassen some big news for our audience. Most of you know me as the co-founder of Midas Touch's

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