Trump Confesses He Will Bankrupt the Country Unless SCOTUS Lets Him Break the Law
It’s my opinion that Solicitor General John Sauer succeeds because of the political pressure he brings to bear on Justices.
That was my immediate impression upon listening to the hearing in Trump v. US. Sauer was arguing a clearly unconstitutional stance, adopting arguments (in a case where Trump nearly got his Vice President killed) that the President could order SEAL Team 6 to kill his adversaries, and (having not reviewed the actual evidence) the right wing judges accepted his premise that this prosecution truly represented a case of meanie Democrats treating Trump badly under the law.
And based on that, the right wing justices wrote an opinion that gave themselves a preemptive veto over whether a former President could be prosecuted, effectively preventing meanie Democrats from upholding the law.
That’s what I think happened with SCOTUS’ abuse of the emergency docket to both overturn nationwide stays and to rubber stamp unconstitutional deportion practices. With their first ruling on April 7 in JGG, SCOTUS sent a mild rebuke to Stephen Miller’s bid to deport wide swaths of Venezuelans to a concentration camp under the Alien Enemies Act based on their tattoos: the ACLU couldn’t get a nationwide injunction against the practice under the Administrative Procedures Act, but each detainee could get a habeas review. Based on that precedent, the Trump Administration got their biggest slapdown of the term in AARP, where Justices intervened on Easter Saturday to make the government turn around buses rushing to deport more men under the Alien Enemies Act. In between the two, SCOTUS ruled that the government should describe what steps it had taken to return Kilmar Abrego Garcia after deporting him illegally.
None of these were good rulings, holding that Miller’s dragnet was wildly illegal. Rather, they were mild rebukes to Miller and tactical rebukes to courts. But then Sauer was confirmed on April 3 (before these rulings but after they were appealed) and Miller and Trump’s propaganda campaign wailing about nationwide injunctions and judicial coups ratcheted up. And against a background of SCOTUS rubber stamping any and all termination orders — with the single exception of the Fed Chair — SCOTUS engaged in exceedingly outrageous action in DVD, serially overriding a District Court’s effort to, one, enforce his orders and, two, prevent the government from deporting men to regimes like South Sudan pending a constitutional review. All this was done with tactical orders building off SCOTUS’ fondness for allowing the President to fire whoever he wants (except the Fed Chair), which itself was used as precedent to allow Trump to override due process for deportees until the courts could consider the legal niceties of it all.
Steve Vladeck is, of course, the source to read on the law of Emergency Docket. The law sucks. But I argue that the law sucks because SCOTUS is not responding to the law. They’re responding to Miller’s shrieks, John Sauer’s neat packaging up of those shrieks, and how both mirror in the Fox News bubble most if not all of these right wing Justices pickle in.
Which is what Trump is planning on in VOS Selections, the tariff case in which both right and left are trying to overturn Trump’s arbitrary illegal trade war. As I keep noting, this case is unique among all challenges to Trump’s unlawful power grabs, because conservative legal luminaries and NGOs like CATO, AEI, and the Chamber of Commerce have joined Democratic states in opposing the power grab. If SCOTUS will ever start reining Trump it, it is likely to be this case.
Back on May 28, the Court of International Trade ruled for the plaintiffs (along with small businesses like wine importer VOS Selections, a bunch of Democratic states), finding that IEEPA, the emergency authority Trump had invoked to impose or threaten tariffs, didn’t give him that authority.
After the hearing but before the court issued its ruling, DOJ submitted a bunch of declarations from Trump’s top officials (which because of the timing were never tested) claiming that if they lost the stick of IEEPA, it would lead other countries to stop negotiating on trade deals. Then, after the ruling, DOJ asked for a stay, relying on the argument in those declarations. The motion for a stay said that the plaintiffs — again, the lead plaintiff is a wine importer — would not be harmed by the period of uncertainty as this got litigated because if plaintiffs won, the government would simply pay them back.
For any plaintiff who is an importer, even if a stay is entered and we do not prevail on appeal, plaintiffs will assuredly receive payment on their refund with interest. “[T]here is virtually no risk” to any importer that they “would not be made whole” should they prevail on appeal. See Sunpreme Inc. v. United States, 2017 WL 65421, at *5 (Ct. Int’l Trade Jan. 5, 2017). The most “harm” that could incur would be a delay in collecting on deposits. This harm is, by definition, not irreparable. See Hughes Network Sys., Inc. v. InterDigital Commc’ns Corp., 17 F.3d 691, 694 (4th Cir. 1994). Plaintiffs will not lose their entitlement to refund, plus interest, if the judgment is stayed, and they are guaranteed payment by defendants should the Court’s decision be upheld.
Immediately after the CIT order, DOJ asked the Circuit Court of Appeals for a stay, playing really hard on how without a stay Trump wouldn’t have a stick with which to negotiate his trade war.
As members of the President’s Cabinet have attested, the CIT’s order would irreparably harm the economic and national security of the United States. The Secretary of Commerce explained that the injunction “would undermine the United States-United Kingdom trade deal that was negotiated in reliance on the President’s emergency tariff authority,” plus the recent “China trade agreement,” and “would jeopardize the dozens of similar arrangements with foreign-trading partners that” are being negotiated. A76. “Each of these negotiations,” the declaration explained, “is premised on the credible threat of enforcement of the IEEPA tariffs,” and the injunction could compromise that threat, so that “foreign counterparts will have reduced incentives to reach meaningful agreements[].” Id. That could “leave the American people exposed to predatory economic practices by foreign actors[] and threaten national security.”
Again, the government assured the court that plaintiffs — and everyone else who had paid illegal tariffs — would get paid back: “the government will issue refunds to plaintiffs, including any postjudgment interest that accrues.”
The small business importers responded by describing all the reconstitution of markets that would happen during the appeal, but also describing the problem with permitting the President to continue to use illegal leverage during a period of a stay.
The President has legitimate means of conducting foreign policy; imposing illegal tariffs is not one of them. The President cannot act illegally as a matter of policy convenience, be ordered to stop, and then plead prior reliance on his illegal acts. If Defendants’ arguments were adopted, an injunction barring virtually any illegal action could be stayed by virtue of claiming that the illegality might create useful leverage: If the President illegally detained innocent people without due process, he could argue for a stay of an injunction against that action on the ground that detention could be useful leverage against the innocent detainees or their families, and thereby advance some claimed U.S. foreign policy or national security interests.
On June 10, the Circuit Court of Appeals granted that stay without engaging in the relative harm to either side, instead pointing to Wilcox, one of two SCOTUS shadow docket rulings about the President’s authority to fire people which has since undermined stays generally.
Days before the hearing, Trump rushed out a bunch of things called trade “deals,” which were not written down and about which both sides continue to argue. That includes a “deal” with the EU, Pakistan, and Korea. And on July 31, having not made the 90 deals supposedly leveraged with the stay, Trump simply set new tariffs, Liberation Day Two Point Oh.
On July 31 (the same day as those new tariffs), the full Circuit Court of Appeals heard the appeal. I actually think the judges were far more split than others did (those judges more favorable to the government spoke up later in the hearing), but it was really hard for me to judge given that most judges on the Circuit participated. This is like a mini-Supreme Court ruling before the big one. Still, the conventional wisdom is, I think, that the Circuit will rule against Trump.
Even before that, though, Trump started working the refs.
Even before the hearing, he claimed that America was dead a year ago but was getting rich off tariffs.
A week after the hearing, boasting that the tariffs-not-deals would go into effect that night, Trump said only a “radical left” court could stop him.
Days later he lied about how much money tariffs were bringing in (here’s the reality), and claimed that if a “radical left court” ruled against him, it — not the tariffs — would cause a Great Depression.
Yesterday, he lied that “consumers aren’t even paying these tariffs” (they’re paying about a fifth of them), then lashed out at a Goldman economist who said that would soon change.
Then John Sauer got into the batshittery.
Monday, about the same number of days after the Circuit Court hearing as it was when DOJ submitted the declarations demanding leverage to negotiate deals they ultimately never negotiated, this letter was submitted under Sauer’s name (but not on DOJ stationery). It cited the July 27 EU deal, announced before the Circuit Court hearing, as well as others announced still earlier than that, as an additional authority (which is normally a new Court ruling that might impact a pending one). Most of it derives directly from Trump’s Truth Social bullshit (marked in brackets below), including the President’s claims that America was a shithole country a year ago and that if a court overturns the tariffs, it (and not the underlying illegal actions) will cause a Great Depression. But it presents these in such a way that neither DOJ’s lawyers nor Trump himself can be held accountable to the court for the obvious lies.
[The President believes that our country would not be able to pay back the trillions of dollars that other countries have already committed to pay, which could lead to financial ruin.] Other tariff authorities that the President could potentially use are short-term, not nearly as powerful, and would render America captive to the abuses that it has endured from far more aggressive countries.
There is no substitute for the tariffs and deals that President Trump has made. [One year ago, the United States was a dead country, and now, because of the trillions of dollars being paid by countries that have so badly abused us, America is a strong, financially viable, and respected country again.] If the United States were forced to pay back the trillions of dollars committed to us, America could go from strength to failure the moment such an incorrect decision took effect.
These deals for trillions of dollars have been reached, and other countries have committed to pay massive sums of money. [If the United States were forced to unwind these historic agreements, the President believes that a forced dissolution of the agreements could lead to a 1929-style result. In such a scenario, people would be forced from their homes, millions of jobs would be eliminated, hard-working Americans would lose their savings, and even Social Security and Medicare could be threatened. In short, the economic consequences would be ruinous, instead of unprecedented success.]
Just about the only claim from anyone but Trump is that, “There is no substitute for the tariffs and deals that President Trump has mad,” which was made in the underlying declarations (and so is not a new authority either).
This is Presidential social media tantrum, presented as legal authority.
The small business plaintiffs responded by noting that the government already said this, therefore it doesn’t count as a new authority, reiterating the harm of any stay, and debunking the claim — the only one that comes from DOJ lawyers — that there is “no substitute” for illegal tariffs, such as going to Congress.
If the Court is inclined to consider the substance of the letter, there is no basis for its declaration that there is “no substitute” for “the tariffs and deals that President Trump has made.” Even without IEEPA, the President can obtain ex ante authority to enter into trade agreements, see 19 U.S.C. § 4202(a), or submit agreements for congressional approval, including via fast-track procedures, as prior presidents have done, see 19 U.S.C. § 4501 (implementing the U.S.-Mexico-Canada Agreement).
Scott Bessent gave up the game the other day with Larry Kudlow (around 13:00). When Kudlow, who predictably allowed Bessent to spin a bunch of other bullshit unchallenged, suggested that if the Circuit Court rules against the government, then Trump has other ways of putting together the magical pony economic plan that Bessent had laid out in the interview.
Kudlow: If the tariff court wins on appeal, you’ve got other ways to put this trade and tariff policy together?
Bessent: Larry, good framing here would be if the tariff court rules against us, we will immediately — it will immediately be enjoined, so the tariffs will likely continue. Then it will go to the Supreme Court in October, then we would expect a ruling in January. But I tell you, Larry, the amount of money that’s coming in here, I think the more deals we’ve done, the more money coming in, it gets harder and harder for SCOTUS to rule against us.
As noted, this question — are there other legal ways to do this? — is the only one in Sauer’s letter that doesn’t derive directly from a Trump Truth Social post.
Bessent dodged the question and instead said that if the tariffs are ruled illegal, then they will just draw things out — just like Sauer did with Trump’s criminal case — until the cost of overturning the tariffs would be too big an ask for SCOTUS.
That is, they’re not even claiming any of this is legal.
They’re just boasting that if they can claim the US is paying its bills through inflated claims of tariff revenues, then the Roberts Court won’t dare uphold the law, for fear of being held accountable for the financial ruin Trump is rushing us towards.
And, as batshit as that Sauer letter is, they might well be right.
Update: I’ve annotated the letter.
