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This is Amicus, a lot of you, and my name is Jim Santel, your host this hour and also next hour on these, the broadcast stations of Civic Media.
As always, I am honored and I am delighted that you have chosen to spend some portion of your weekend
in review, in reporting, in assessment, in description and discussion of some of these major issues in the areas of rule of law and the administration of justice in America.
It has been an amazing week.
in rule of law issues for the nation, for our history, and we're going to cover perhaps not all of that, but major portions of that on this edition of Amicus, a Law Review.
I am joined in the studios here.
in Racine Park by my wonderful producer.
His name is Greg.
And together, we're going to be taking your calls as well, your comments, your questions, your insights, your perspectives, your inquiries, all these kinds of things.
That phone number is 855-752-
4-842.
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It is a special edition.
of amicus a law review we're going to be doing something that we have done only occasionally in the past when we have reported on all of these major issues related to the rule of law government and what it means to you you're going to hear during the course of the next couple of hours from supreme court justices no they're not calling into our program regrettably but we are going to provide you with sound of this major oral argument a major rule of law event in a
America just this past Wednesday.
And we're going to listen to what the Supreme Court justices, many of them, not all of them, but many of them had to say about this notion that the President of the United States of America has authority or not.
to impose tariffs in 2025 or at any time since our Constitution has been in place.
You know well based upon the reporting nationwide even worldwide because this does have implications across the globe about what happened this past Wednesday.
This is a case that challenges whether or not President Trump over the period of the past six to seven months does in fact they have the legal
the constitutional authority to impose tariffs in the ways that he has done just that.
And what has happened is some companies, domestic companies, including a toy company, have challenged the authority of the president to impose those tariffs.
And they've said basically two things.
Number one, they have said that under the Constitution, this is not a so-called Article II power.
You're going to hear a lot about that.
A lot of the justice
is talking about Article 2 powers.
What does that mean?
Article 2, of course, is the portion of our Constitution that establishes the presidency.
and establishes the powers and also implicitly the limits of those powers in that portion of the Constitution.
Not everything is set forth in Article 2, and that's the argument in the opposite direction.
That because there are these broad plenary powers that the president may have, what the attorney for the government calls foreign-facing issues, we'll talk more about that, because not everything is set
there, but because the president has these authorities with respect to being a commander-in-chief and having foreign powers generally, he should be able to impose these tariffs.
That contrary again to what the challengers are saying, who say no.
Those powers are exclusive to what?
To Article 1, to the first article of the Constitution that establishes what?
the authorities, the powers of the legislature, and including the power to tax.
You're gonna hear an awful lot today from the justices about how this is a tax.
This is not a foreign-facing regulation of foreign powers and foreign economies and foreign monies.
This is a tax.
Huge dispute among the parties about exactly what this is.
And the challengers, once again, saying that constitution does not give the president the authority.
attacks and therefore not the authority to impose these tariffs.
They go on and they respond in particular to the
related argument made by the president through the Solicitor General.
You're going to hear a lot from today.
His name is John Sauer, S-A-U-E-R.
He speaks very quickly, as Greg and I have already noted.
As you have probably noted, you're going to hear from him again.
And he is going to articulate the view that under a thing called the International Emergency Economic Powers Act.
of 1977 called the IEEPA.
They're going to be referring to it as the IEEPA.
The president does in fact have some authority to take steps in response to what's called a national emergency.
to deal with any unusual and extraordinary threat to the national security, the foreign policy, or the economy of the United States, focusing again upon this notion of an emergency, which is in the law, gives the president some authority under the IEPA to do what he says he can do.
It is the position of the Department of Justice
of the solicitor general of this fellow named John Sauer, you will hear from this broadcast that that includes the power to regulate the importation of foreign property, which according to John Sauer and the president allows the president
to levy tariffs.
It's a lot.
It's a complicated, but yet very straightforward argument.
Number one, the Constitution does not permit this under the clear text of the Constitution.
You'll hear some of the justices, including Elena Kagan talking about just that.
And then that even the provision invoked by the president, this IEEPA that gives him some limited authority under Article Two, not Article One, but Article Two, the legislative authority from the
Congress that under this law called again the international emergency economic
powers act.
There's a carve out.
And basically the president does have authority in case of an emergency.
They'll talk about whether or not we are in an emergency to justify this kind of activity.
And that's the large framework that brought the attorneys for the challengers to the president's authority.
And yes, indeed, the solicitor general, John Sauer, into the courtroom of the United States Supreme Court this past Wednesday in front of the nine justices.
You're going to hear from many of them.
directly their words, their tone, their content, and it is important to note both of those.
I've already commented upon something that you will note quickly, which is that the Solicitor General speaks with great speed, and twice during the course of the oral argument, a nearly three-hour oral argument on Wednesday morning justices of the Supreme Court pled with him to slow down.
something that I've encouraged those mock trial students with whom I work also to do on a regular basis.
John Sauer going at breakneck speed through these arguments and for that reason anticipate that not only is this a lot in terms of content, but it is difficult to follow.
But it sets up.
it sets up the responses by the members of the Supreme Court.
And that's the big takeaway.
That's the big headline that's coming out of the reporting from this oral argument.
Many news outlets indicating that the Supreme Court, maybe not all of them, but a majority of them seem to be, as they often say, skeptical, skeptical of the president's position, suggesting that they may in fact find
that there is no constitutional, no statutory authority for the president to do these kinds of tariffings.
We've now turned that into a verb as well from the bench of the Supreme Court.
And that's the big takeaway.
Many journalists talking about the skepticism I would offer, as you will hear in this broadcast in the next segments, it's more than skepticism.
It's downright disagreement.
with the administration about whether or not the president has this authority, and you'll hear the justices in ways great and small and in between contesting and arguing with John Sauer about his position.
that the president does have this authority, that this concept is a foreign-facing capacity that he has.
You'll hear that phrase a lot, and you'll hear other phrases as well.
You're going to hear the word capacious, capacious today, and during the course of our broadcast, capacious, a word invoked by John Sauer to indicate that the president has broad powers under section, the article two of the Constitution, and the section
of it.
You're also going to hear about two major concepts, one of them the major questions doctrine and the other one the non-delegation doctrine.
All of that a part of our civics instruction about the law school that we often undertake here on Amicus Hall Law Review.
The major questions doctrine, this notion that if it is big and if it is new,
Only the Congress can do it having to do with vast economic or political or social or agriculture or Academic other things out there in the public domain if they're big if they're vast if they're expensive and they're huge They're new only the Congress can do it their major questions that only the Congress can wrestle with and therefore The president does not have these authorities Interestingly the challengers raised the major questions doctrine to say
that because this is a major question, the capacity to impose tariffs, only the Congress can address this, only the Congress can impose this, and for that reason, for that reason, only the legislature can act in this area.
The second concept you will also hear is the non-delegation doctrine, and we have talked about that as well.
The non-delegation doctrine.
This notion that the Congress cannot
constitutionally delegate things, cannot send to agencies, to the executive branch, responsibilities that are stored and vested in it alone.
Interestingly, that non-delegation doctrine not invoked recently in contemporary constitutional history, but a lot of back and forth about the non-delegation doctrine because, of course, the challengers saying that, yes, re-invoke the non-delegation doctrine here justices to say that the Congress cannot and does not and should not, nor should the President be able to seize authority
from the Congress that is only congressional.
Congress, the legislature cannot delegate this to the executive branch, can't go down Pennsylvania Avenue, can't go down to the White House for the purpose of imposing and vesting in this other branch of government, the authority to levy taxes, the authority to levy these tariffs in particular.
A lot of discussion implicitly and explicitly about the rule of law.
about the separation of powers, about checks and balances among the branches of government, a bit about the legislature along the way, a lot about the powers of the executive branch to do things under the Constitution and again under this statute that does under emergency situations contemplate some authority.
in what John Sauer calls this foreign-facing capacity, all of that, all of that a part of the three-hour oral argument of the Supreme Court just this past week.
Along the way, a little bit of levity back and forth, not only in terms of who is going to ask about things like the non-delegation doctrine between the justices, but also, believe it or not, about pastry.
about donut holes and we'll talk a little bit about one of the attorneys for the challengers talking about pastry and explaining the analogy between that and the major decision which the Supreme Court has before it now that is it has taken this matter under advisement when we come back we're going to begin to hear from Supreme Court justices including Elena Kagan and others as they address these issues here on amicus a lot of you
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A lot of you.
My name is Jim Santel.
Thank you so much for being with me this weekend as we do what's called a deep dive into what the Supreme Court did and did not do this past Wednesday in this major oral argument that has the chance of changing the ways in which we understand the separation of powers or rather reaffirming the ways in which we understand the separation of powers.
Arguably, based upon what the Supreme Court justices said in their questions of the attorneys for both sides on this terrorist issue, those advocating that the president does have the power to do this, his name, John Sauer, and his staff, he is the Solicitor General of the United States, and those in the other direction, a fellow named Neil Katyal, another fellow named Benjamin Gutman, who say no, he doesn't have the authority to do this, this is a tax, and only the Congress can tax.
And for that reason, indicate, rule, decide, Supreme Court, that there is no authority to impose these tariffs by the president, to that point.
Let's get right to the Supreme Court.
This is about three, maybe four minutes into the oral argument.
The last...
Almost three hours, there's a lot.
You're going to hear just bits and pieces of it in this edition of Amicus Allah Review.
We're going to begin with Elena Kagan, again, questioning John Sauer.
He is the Solicitor General.
John Sauer advocating for the president's position in support of his authority to impose these tariffs.
Greg, let's go to that first clip.
Can I interrupt you general there and I know that you have a second question and I want to let you get to that but just on that first reason it seemed to depend a lot
on the president's inherent Article II powers.
And I'm wondering what exactly, which powers you're speaking of there.
Because tariffs, one would naturally think is the power to impose taxes, the power to regulate foreign commerce.
These are not things that are thought of as Article II powers.
They are quintessential Article I powers.
So what kind of Article II powers are you relying on when you gave the answer
about major questions to Justice Thomas.
I would refer to what the court said, for example, in Egan, Department of Navigation.
Egan, that's a generally accepted view that the president has broad authority in the foreign affairs realm.
There's been debates about exactly how far it goes and how to draw the boundary between the president and Congress.
But Egan, Garamendi, other cases, Curtis Wright, the court has recognized the president has broad inherent authority to address foreign situations, foreign affairs, foreign policy, including foreign arising emergencies.
Now, we don't contend that he has,
as at least in peacetime inherent, terrifying authority, what we have here is two layers.
There's the bedrock of the president's inherent Article II powers, and layered on top of that is a sweeping delegation of authority from Congress.
When you put those two things together, Congress is saying, you have inherent powers to address international emergencies, and we're conferring you on you the tools, including Article I tools, like, for example, the power to regulate foreign commerce.
And I want to make a very important distinction here.
We don't contend that what's being exercised here is the power to tax.
It's the power to regulate foreign commerce.
These are regulatory tariffs.
They are not revenue-raising tariffs.
The fact that they raise revenue is only incidental.
The tariffs would be most effective, so to speak, if no person ever paid them.
If they'd achieve their goals, if they...
And there we have, there we have Elena Kagan questioning, questioning John Sauer about this notion, this fundamental disagreement that they plainly have.
about where the authority lies.
John Sauer maintaining that there is a constitutional base for this, arguably, broadly in the second article of the Constitution, also that Congress has given the president this authority by virtue of this IEPA authority, also imposed there.
Greg, let's go to the second clip here, which advances this argument even further.
I just don't understand this argument.
It's not an article.
It's a congressional power, not a presidential power to tax.
And you want to say tariffs are not taxes, but that's exactly what they are.
Degenerating money from American citizens, revenue.
And you say it's incidental to the regulatory purpose.
But I don't see how a quota is equivalent to revenue raising.
A quota sets a limit to what you can import in, but it doesn't generate revenue.
I don't understand this argument that it's equivalent or that foreign powers or even an emergency can do away with the major questions doctrine.
Didn't we in the Biden case recently say an emergency can't make clear what's ambiguous?
As to that point, I believe
The court has never applied the major question of doctrine in the foreign policy context.
But we have.
The purge of the context, not
the foreign policy context.
Counsel, we have never applied it to foreign affairs, but this is a tariff.
This is a tax.
It is a, if I may, it's a foreign facing regulation of foreign commerce.
That's a good torturer.
Everything.
So Biden could have declared a national emergency and global warming, and then gotten his student forgiveness.
to not be a major questions doctrine?
I don't think he could have gotten student loan forgiveness.
Why?
It's
foreign facing.
We need all of these things to tax fossil fuel or to do something else.
That's all Biden would have had to do with any of his programs.
Let me put it this way, if I may.
It's just to clear some form facing purpose.
addressing John Sauer, who again, speaking very quickly as you can plainly digest, that continues throughout this three hour oral argument at two points during the course of the oral argument on Wednesday morning.
Supreme Court Justice is looking at him and saying, slow down, I can't follow what you're saying.
And that's why it's very difficult to follow what he is saying.
Even as we replay what he has said, let me digest some of that for you once again.
have Alina Kagan saying, major questions doctrine, major questions doctrine, this notion that a president cannot do something if it's vast, if it is big, if it's new.
And she says, you know what?
Joe Biden, the previous president, tried to do those kinds of things in the area of COVID and the environmental issues, loan issues.
And we said no because it's too big, it's too new.
When we come back, we'll hear more about all of that as we listen to more of the Supreme Court oral argument in this case of tariffs before the Supreme Court, all of that here on Amicus, a law review.
30 seconds.
My name is Jim Santel here on the broadcast stations of Civic Media, joined in the Racine Park Studio of Civic Media by my terrific producer, Greg.
We're at 855-752-4842.
You can send a question, a comment, some perspective to Greg and me.
and be a part of our discussion.
You can also be a part of that discussion through the Civic Media app, can call, text, or drop a voicemail into our communication system here, and that's what it's all about.
We are talking in this edition of Amicus, a Law Review, all about this major Supreme Court argument in which the big takeaway seems to be,
that a majority of the Supreme Court members on both sides of the aisle, so to speak, appear not only to be skeptical, but
downright doubtful, downright contesting this notion that the president has the authority to impose tariffs in the way that he has been doing them.
We've already heard from Elena Kagan.
We'll hear from her again a little bit later on.
And you may well say, well, I'd expect that from Elena Kagan, from Sonia Sotomayor and Kataji Brown Jackson.
They are three votes, certainly in opposition to the president.
They are certainly going to come forth and say when this case is decided that the president does not have
of this authority under this particular statute, the IEEPA, he doesn't have the authority into the Constitution, the predicate authorities imposed upon the Congress and not the presidency, but we've also got other justices.
other justices who are equally not just skeptical, and not just questioning, but also outright critical of the president's position, and that includes Amy Coney Barrett, and that includes Neil Gorsuch, a little bit from the Chief Justice, a bit from Brett Kavanaugh as well, all indicating that this notion, at least by the tea leaves we're reading right now, the tea leaves indicating that the Supreme Court may in fact be
preparing to hand to the president a defeat when it comes to tariffs, addressing issues about what they are, the taxes, are they something else, addressing issues related to the implications of presidential as opposed to legislative power.
Some focus later on in the argument about other tariff powers.
that the president does have, aside from the IEEPA.
And also, again, these issues related to the non-delegation doctrine, this concept that the Congress cannot give its authorities to other branches, including agencies, including moving down Pennsylvania Avenue to the White House.
And also this major questions doctrine, that if it's big, if it's new, if it is a vast matter of economic or social or political, you name it.
kind of policy, the things that Elena Kagan went after the Solicitor General on, saying that under the Biden administration, as he attempted to do things in the area of COVID regulation, environmental issues, also loan forgiveness, all of them big, all of them new,
the United States Supreme Court consistently said can't do that.
That's only legislative.
That's the major questions doctrine.
If it's a major question, that is specific to the Congress and not the president.
Let's hear from more of the Supreme Court justices.
Let's go to the other side of the bench, if you will, and hear from Amy Coney Barrett as she takes on this issue of what's going on here.
Greg, let's do that next portion.
Board of Trustees, it's time for more.
Can I just ask you a question?
Can you point to any other place in the code or any other time in history where that phrase together, regulate importation, has been used to confer tariff imposing authority?
Well, as to regulate importation, that was held in Twia.
So obviously, and that's.
OK,
OK, so an intermediate appellate court held it in Twia, but you just told Justice Kavanaugh that wasn't your lead argument, that your lead argument was this long history of the phrase, regulate importation being understood.
to include tariff authority.
So my question is, has there ever been another instance in which a statute has conferred, used that language to confer the power?
Well, putting aside Yashida.
I mean, obviously, the other
statutory example is just imports.
The cases we rely on are cases where, for example, in Gibbons, it's Ogden and Justice Stories.
But that just shows the word can be used that way.
None of those cases talked about it as conferring tariff authority.
I understood you to be citing McGoldrick and Gibbons in those cases, just to show that it's possible to say that regulating commerce includes the power to tariff.
I think our argument goes a bit further than that.
It's an interpretive matter, because if you look at that history, the history of delegation.
Could you just answer the justices question?
And that's Sonia Sotomayor interrupting and saying, I'd like an answer to what my colleague, Amy Coney Barrett, is asking you.
General Sauer, and by the way, the references to general, he is the solicitor general, and so it is common practice in the language of the court, and generally to refer to him as general, not in the military sense.
That's where you get that reference.
Sonia Sotomayor, frustrated by the fact.
by the fact that this representative of the administration, not giving Amy Coney Barrett the answers to the questions that she wants.
And again, plainly, Sonia Sotomayor, along with Katanji Brown, Jackson, Elena Kagan, finding ultimately in this matter, whenever it's decided that this authority does not exist in the presidency.
But here it is, that Amy Coney Barrett
addressing the president's representative and saying, I doubt that the presidents that you have cited, and yes indeed in that excerpt, an awful lot of references to cases, an awful lot of things being bandied about, names of cases, and Amy Coney Barrett saying, as Brett Kavanaugh said earlier on in the oral argument,
that the things you're relying upon do not support your position.
And then going beyond that and talking about language, another reference made in that clip you just heard to Twia?
Tuyah yet another statute.
That's the Trading with the Enemy Act.
It also comes in as the Congress is wrestling with and the court wrestles with the authorities that it has and also the authorities of the president.
Tuyah basically providing standards when it comes to understanding our connections with enemies.
on the foreign land.
And so let's go on to hear more of this oral argument involving justices of the Supreme Court and the Solicitor General, John Sauer, before the Supreme Court just this past
week.
They give, they pack a punch, but I wouldn't describe them as capacious in the sense that they have a wide range of meanings.
So can you describe what you mean by capacious?
Let me put it
this way.
You look at all nine verbs together and you're looking at a spectrum of powers from the most sort of negative nullify, block, prohibit, void, to the most affirmative, direct compel, and then also powers in between that are more intermediate, regulate, investigate, and so forth.
So the natural common sense inference from that grammatical structure is the intention of Congress to sort of cover the
Well,
possible, General, possible, except Congress did take out a whole bunch of verbs.
It took out confiscate, vest, hold, use, administer, liquidate, sell, which were in the prior statute.
And crucially, what it doesn't have here is anything that refers to raising revenue.
And once again, that was the voice of Elena Kagan, interrupting about another big portion of what was going on during the course of this oral argument.
And that is language.
The word capacious comes up repeatedly.
It's initially introduced, if you will, by the Solicitor General of the United States of America, capacious.
You all know that.
Greg knows that.
We all know that.
It's having a lot of space inside.
It's roomy, sometimes real estate promoters talk about a capacious.
living area.
Perhaps a bag that you might carry with you is capacious, lots of space inside.
And the question here is whether the language of these statutes, including the specific statute here, IEPA, is capacious.
If it includes the kinds of broad things that John Sauer would like the Supreme Court to embrace, or in fact, is it more limited as Amy Coney Barrett and Elena Kagan seem to suggest, that is it's more
and does not give the president these broad authorities for which John Sauer is arguing during the course of this oral argument.
All of that going on during the course of this exchange.
And again, some significant things to note, some significant things about all of these arguments going back and forth.
You have got Brett Kavanaugh early on suggesting that some of the reference points by the Solicitor General are not
especially helpful, and he comes back later on during the course of the oral argument.
But we do have, we do have significantly the voice of Amy Coney Barrett.
pushing back on this notion that there is broad and plenary power in the presidency to impose these kinds of tariffs.
And later on, we're going to hear as well from Neil Gorsuch.
And the reason why that is important is, of course, as you all know, that in order to decide a Supreme Court case, what do you have to have?
We've got to need four votes.
Four votes to take a case initially.
Four justices have got to agree upon the decision to hear the case to begin.
with but you need five of them obviously a majority of the nine to decide the case in the end we have talked on this broadcast a lot about the six to three majority minority positions and those have often fallen right down so-called political partisan lines although we don't
especially embrace that because there are many circumstances where those clear lines are not followed by the justices.
We do get some odd bedfellows from time to time, but here it appears in this oral argument of this past Wednesday.
that we have three justices Sotomayor, Katangi Brown Jackson and Kagan along with Coney Barrett and also along with Neil Gorsuch who are looking at all of this and they are saying I'm very doubtful about your position, Mr. Sorrow.
Justice Barrett again, it was seen as a key vote here along with Neil Gorsuch, arguably the Chief Justice
arguably Brett Kavanaugh, addressing again and questioning the scope of these reciprocal tariffs, she described them as across the board.
In another setting during the course of this oral argument, she says, is it your contention that every country needed to be tariffed because of threats to the defense and the industrial base?
She's talking about the emergency powers under Ayipa.
She says, Spain?
France I mean I could see it with some countries but explain to me why Coney Barrett says why as many countries need to be subject to the reciprocal tariff policy here and Several justices again also note along the way that Donald Trump is the first president to claim this 50 year old emergency statute
permits him to impose these tariffs.
Again, at issue in this case is whether or not the International Emergency Economic Powers Act, 1977, to unilaterally set tariffs without the Congress on imports from more than about 100 countries.
That's what we've seen in recent months, is an attempt to reduce the trade deficit and ignite more manufacturing in the United States.
under emergency emergency circumstances.
The justices plainly sparring over emergency, sparring over what this is, whether this is a proper exercise of executive authority or whether it is a tax.
Elena Kagan and others saying, no, it is not a tax.
At what point, Sonia Sotomayor, who you heard interrupt here in that last excerpt, asking the general, the solicitor general to respond to the question, she says, you want to say that tariffs are not taxes, but that's exactly what they are.
They are generating money from American citizens.
In lead-up to the argument, the president called the case literally, life or death for our country.
the degree to which he views it as critical to his trade and foreign policies.
And he says, without this emergency power, the country is, he said, virtually defenseless against other countries who have for years taken advantage of us.
When we come back, we'll do a little bit more from the Supreme Court and talk more about the meaning of this oral argument.
This major oral argument is here on Amicus, a lot of
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My name is Jim Santel, and we are devoting
The Lions share most of our broadcasts this weekend to this major rule of law event that is the oral argument before the Supreme Court that, yes, it's about tariffs.
It's an important issue for the economy of our nation, the economy of every nation on the face of the planet, but also about the separation of powers, the role of the presidency.
Can he or she one day do things not expressly prescribed in the Constitution?
What about statutory authority as the president claims in this instance?
What about checks and balances?
And that's what the members of the Supreme Court are wrestling with.
In addition to a lot of language, a lot of talking about everything, what the word...
Patience means broad language specific terms inside these statutes specific things that are understood from precedent and members of the Supreme Court doubting very clearly the legitimacy of what the Solicitor General is saying to them including yes, including Sonia Sotomayor Katanji Brown Jackson Elena Kagan, but also Amy Coney Barrett and also Brett Kavanaugh the Chief Justice and Neil Gorsuch as well all of them all of
them got a chance to speak along with along with Sam Alito and Clarence Thomas all of them a part of this discussion the tea leaves indicating that maybe just maybe the Supreme Court is going to issue a decision
in opposition to the president's position on all of this raises some issues about the role the responsibility the capacity of the united states supreme court as always we value your comments your questions your inquiries at our phone number eight five five seven five two four eight four two and on the line right now is one of my colleagues
here in Civic Media.
Her name is Catherine.
Catherine delighted that you have chosen to call in and being part of our discussion this weekend on the broadcast.
And Katherine apparently is not there right now, but we'll get her back.
She plainly had a question about the role, the responsibility of the Supreme Court, and we'll talk more about that.
Let's get back to understanding even more about what happened this past Wednesday.
I mentioned Brett Kavanaugh.
Let's hear Greg from Brett Kavanaugh and his exchanges with the Solicitor General of the United States of America.
More importantly, if you look at the sort of triggering conditions that members of this court have identified for the major questions doctrine, there's a series of them and we think they really, all of them don't apply here.
For example, the notion that the power is unheralded.
You refer to the fact that IEB has never been asserted to invoke terrorists, but of course, the immediately predecessor statute.
The pairs that President Nixon imposed on that were upheld under this very language.
So this, I would say this is, and it was recodified two years later.
So this is kind of the opposite of unheralded power.
It's also heralded because there's this long-standing delegation, a tradition of very broad delegations of the foreign commerce power going back to the founding, going back to... So the
foreign commerce part, but I mean, and I think this is a question for the other side as well.
It's too, too facing.
Yes, of course, tariffs and dealings with foreign powers, but
The vehicle is in position of taxes on Americans, and that has always been the core power of Congress.
So to have the president's foreign affairs power trump that basic power for Congress seems to me to kind of at least neutralize between the two powers, the executive power and the legislative
power.
Let me say two things in response to that.
First, the notion that the taxes are all borne by Americans and are not borne by foreign producers whose goods are imported is empirically, there's no basis for that in the record.
It's actually a mix.
Well, who
pays the tariffs?
If a tariff is imposed on automobiles, who pays them?
Typically there'd be a, regardless of who the importer of record is, there'd be a contract that would go along the sort of line of transfer that would allocate the tariff and there'd be different
Sometimes the foreign producer would pay them.
Sometimes the importer would bear the cost.
The importer could be an American, could be a foreign company.
A lot of times it's a wholly owned American subsidiary of a foreign corporation.
So it gets allocated.
The empirical estimates range from like 30% to 80% of like how much is borne by Americans.
I mean it's
been suggested that the tariffs are responsible for a significant reduction in our deficit.
I would say that's raising revenue domestically.
And that once again, Brett Kavanaugh, taking on the Solicitor General, saying clearly that the vehicle is the importation, rather the imposition of taxes.
If you buy into that theory that these are taxes, then the President loses.
And that's why John Sauer, you hear again, speaking very quickly, almost unintelligently, I would offer not good advocacy in front of a Supreme Court that's trying to parse through some very, very
complicated concepts here, putting aside the style of this, Brett Kavanaugh, at least superficially there, not buying into the kind of thing that the solicitor general is saying, the vehicle is the imposition of taxes.
And if in fact you abide by what John Sauer is saying, the Associate Justice Kavanaugh says,
Then you're neutralizing.
You're neutralizing the Supreme Court, rather the Congress and the legislature.
And the Supreme Court then is in the position of saying that the Constitution doesn't apply.
And the statutory language does not lead to the result that necessarily is dictated by understanding and common sense, which is also a major portion
of this oral argument.
We're going to hear more from Neil Gorsuch, we're going to hear more from Brett Kavanaugh in our second hour, but as we conclude this hour, a couple more observations about what's going on here.
Again, the non-delegation argument, the non-delegation doctrine looming large during the course of the second portion of this oral argument had an interesting exchange between Justice Alito and Neil Katyal, who is again representing in part
the challengers.
to this tariff authority.
At one point, at one point, the Associate Justice says, I wonder if you ever thought that your legacy as a constitutional advocate would be the man who revived the non-delegation argument.
And again, that's very wonky, I know.
Basically, typically, Neil Katyal and others have been supporting this notion that the non-delegation argument should not be revived.
That agencies,
executive branch entities should have the authority to exercise their responsibilities without, without being subject to restrictions.
Here you've got Neil Katyal saying, yes, the non-delegation argument that doctrine dictates something else.
Neil Katyal, quick to respond.
Heck, yes, Justice Alito.
I think Justice Gorsuch nailed it on the head when saying when you're dealing with a statute that is this open-ended, unlike anything you've seen before, this is delegation.
This is amicus a lot of you.
My name is Jim Santel
We are spending most of this broadcast on the broadcast stations of civic media, reviewing, analyzing, talking about, and yes, listening to the words of Supreme Court justices along with a very fast and therefore almost unintelligible arguments of your solicitor general.
His name is John Sauer.
As an aside, you may recall that John Sauer in addition now being inside government, he is the number three position in
the Department of Justice, he is the office, he is the office holder of that position, the Solicitor General who argues cases before the Supreme Court.
And so you hear his name a lot in connection with the...
so-called shadow docket, other advocacy, and even before he became the Solicitor General, you may remember, you may remember that John Sowers was the one who represented the current president, Donald Trump, when he was a private citizen, and when he was facing the prosecution by the Department of Justice in a couple of cases involving those Mar-a-Lago documents, involving January 6th, and the Supreme Court tamed
also including John Sauer at the time, about whether or not the president should be immune from criminal prosecution while in office.
John Sauer representing private citizen Donald Trump during that time period.
And yes, convincing the Supreme Court, apparently, at least a majority of it, that there are things that the president can do.
that are criminal in nature for which there can be no prosecution.
That's the same John Sauer who is now arguing on your behalf as your Solicitor General in front of the Supreme Court about this matter, about tariffs and the capacity of the President to impose tariffs.
What are they?
Are they taxes?
Are they somehow foreign-facing?
Are they assumed by virtue of some
broader powers inside article two effectively conveyed by the congress all of those issues having to do with the authority of the president
the authority of the Congress itself along the way.
Once again, this major questions doctrine, things that are vast and big and new, whether or not those should be exclusive to the Congress.
And also this non-delegation doctrine, these princesses, the law scortion of our broadcast.
This is the civics education, which we often do, the non-delegation doctrine, this concept.
But the Congress cannot and should not be giving its responsibility Delegating its responsibility to executive branch authorities here.
You have people like Neil Katyal saying That the non delegation doctrine commands that the Congress keep this authority to impose Taxes to impose tariffs and yes indeed as we were just concluding the previous
our here on Amicus, a law review, a question between Justice Alito and Neil Katia about the implications of the non-delegation argument.
And Neil Katia, quick to respond, says, yes, Justice Alito, I think Justice Gorsuch nailed it on the head when saying that when you're dealing with a statute that is this open-ended, unlike anything we've ever seen to give the president this kind of power, yes, that isn't just delegating.
running riot.
This is delegation.
That's a legislative abrogation.
Abrogation.
In addition, we should note, we should note that plainly there's an awful lot of this oral argument, almost three hours involving questions between the justices and Neil Cotiel and his colleague who is also there.
His name, Benjamin Gutman, Solicitor General of Oregon.
At some point, we also get some very pointed questions by Brett Kavanaugh and Sam Alito to Katyal and Gutman.
And one of the questions that Justice Kavanaugh posed, he expressed concern about taking tariffs away from the president's suite of tools to deal with economic emergencies.
Why?
Why, Justice Kavanaugh asked, on the other side of this oral argument, would Congress give the president the authority to shut down trade?
but not take the less sweeping step of imposing even a modest 1% tariff.
That, Justice Kavanaugh said, appeared to support the government's claim, creating an odd donut hole in the statute.
That's what Justice Kavanaugh said, prompting Guttman to respond.
It's not a donut hole, Justice.
It's a different kind of pastry, prompting laughter in the courtroom.
A little bit, a little bit of levity in an otherwise very serious argument.
And we're going to get back to more of that.
We've already taken some inventory of what Justice
Barrett has said what Justice Sotomayor, Justice Kagan has said, haven't heard a lot from Justice Katanji Brown Jackson, but know that early on she was equally animated in her pushback with the Solicitor General.
Let's hear now, let's hear now from Neil Gorsuch and his exchange with, with the Solicitor General this past Wednesday in this oral argument.
Greg, let's go to the first portion of this.
General, just a few questions following up on the major questions, discussions you've had.
You say that we shouldn't be so concerned in the area of foreign affairs because of the President's inherent powers.
That's the gist of it, as I understand it, why we should disregard both major questions and non-delegation.
So could Congress delegate to the President the power to regulate commerce with foreign nations as he sees fit?
and collect duties as he sees fit.
We don't assert that here.
That would be a much harder case now in 1790.
Isn't that the logic of your view, though?
I
don't think so because we're dealing with a statute that was a carefully crafted compromise.
It does have all the limitations that I just talked about.
You're saying we shouldn't be concerned with... I want to explain to me how you draw the line because you say we shouldn't be concerned because this is foreign affairs and the president has inherent authority and so delegation...
off the books, more or less.
if
that's true, what
would prohibit Congress from just abdicating all responsibility to regulate foreign commerce, for that matter, declare war to the president?
We don't contend that he could do that.
Why not?
Well, because we're dealing with the statute again.
I'm
not asking about the statute, General.
I'm not asking about the statute.
I'm asking for your theory of the Constitution and why major questions and non-delegation
what bite it would have in that case.
I would say by then you would move from the area where there's enormous deference to the president, actually both the political branches, where here there's inherent authority and pile on top of that there's a broad telly.
You're saying there's inherent authority in foreign affairs, all foreign affairs, so regulate commerce, duties and tariffs and war.
Inherent authority all the way down you say, fine, Congress decides tomorrow, well we're tired of this legislating business, we're just gonna hand it all off to the president.
What would stop Congress from doing that?
That would be different than a situation where there are meets and bounds, so to speak.
It would be a wholesale
application.
You say we are not here to judge meets and bounds.
That's what I'm struggling with.
You'd have to have some test.
And if it isn't the intelligible principle test or something with more bite than that, you're saying it's something less.
What is that less?
Associate Justice Neil Gorsuch pushing back on the things that the Solicitor General of the United States is saying about all of this, questioning what are the bounds of the Solicitor General's position.
If in fact, in this instance, the President has the authority to do something at least in the overt and clear language of the Constitution is delegated to the Congress, what are the limits to that?
What if the Congress basically says we're giving up entirely?
Can everything be sent over down Pennsylvania Avenue, over to the White House for administration and decision-making?
That's what the Associate Justice, Neil Gorsuch, is saying to the Solicitor General of the United States, and it goes on.
There is more.
Is there not, Greg?
Let's hear more from the Associate Justice, Neil Gorsuch.
So perhaps the right to approach it is a very, very deferential application of the intelligible principal test, that that sort of wholesale application of...
Right, so now you're admitting that there is some non-delegation principle at play here, and therefore major questions as well.
It's very
limited.
Very, very deferential.
And again, the phrase that Justice Jackson uses, it just does not apply.
I know, but that's where you started off, and now you've retreated from that, as I understand it.
Well, I think we, as our front-line position, assert a stronger position, but if the court doesn't accept it, then if there is a highly...
Can you give me a reason to accept it, though?
That's what I'm struggling and waiting for.
What's the reason to accept the notion that Congress can hand off the power to declare war to the president?
Well, we don't content that.
Again, that would be... Well, you do.
You say it's unreviewable.
There's no manageable standard.
Nothing to be done.
And now you're... I think you... Tell me if I'm wrong.
You backed off that
position.
Uh, maybe that's
fair to say.
Okay.
All right.
That would be an abdication.
That
would
really be an abdication, not a delegation.
I'm delighted to hear that, you
And there it is.
He's delighted to hear that.
The question is, what does Neil Gorsuch do with that?
What does Amy Coney Barrett do with that?
We know with some certainty that Sonia Sotomayor and Kataji Brown Jackson, Elena Kagan, they know what to do with that, which is to find that the president does not have the authorities to do this.
The big takeaway, again, from not just
that exchange that comes about 48, 49, 50 minutes into this oral argument is a major portion of this oral argument devoted to testing the limits of this concept.
And at least by my count, at least by my count, five of the justices, maybe six, including Brett Kavanaugh, maybe even seven, including the Chief Justice, who is also
Again, somewhat skeptical.
He's asking tough questions, admittedly, of both sides, but seemed most emphatic when questioning the Solicitor General.
He may also be among this group.
It may well be that there are five, six, maybe seven justices in the Supreme Court right now who are inclined not to buy into what the Solicitor General has been offering to them and may in fact say,
that the president cannot do what he has been attempting to do, at least under this statutory authority.
It is important to note, as a part of the oral argument that continued for a long time on Wednesday, that there was also a lot of discussion about alternatives, in addition to this tax issue and this foreign-facing issue, and what's capacious and what is not, and yes, donut holes and pastry and all those kinds of things, presidential powers, but other terror powers, also a main focus.
Neil Katyal, who was arguing again that under IEPA...
The president does not have this authority, also knows that there are alternatives, which again under section 122 of a 1974 trade act, giving the president the authority to issue tariffs to deal with balance of payment crises related to trade deficits, all kinds of things out there.
Section 122 puts strict limits on those tariffs, capping them at 15% and allowing them to remain in place for only 150 days.
So an awful lot of this focused on other things that the
Congress has done to give the president some limited authorities to impose tariffs.
The question is here under IEPA, whether that kind of thing is also permitted.
And again, an awful lot of legal theories being bandied about here, including the major questions doctrine you heard.
Justice Gorsuch, you heard Amy Coney Barrett and others talk about that.
And also this non-delegation doctrine, all of which suggest if you buy into the arguments made by the challengers would suggest that the president does not have this authority.
And again, we know that the Supreme Court has from time to time in the past surprised us.
They have not always followed exactly what the oral arguments would indicate.
And it is way too early, obviously, to tell exactly what it is that the Supreme Court may do.
We know that on Friday of this past week, they went into what's called a conference session, where they decide how to decide down the road.
They arguably may have made some decisions already about what they're going to do in this case.
Maybe took an initial vote, which they can do.
Maybe even is going so far as to assign who's going to write the majority.
If there is in fact a minority, a dissenting opinion or set of opinions here, all of that could have been undertaken as late as Friday.
in anticipation of a decision coming up down the road.
When we come back, I'll tell you something else that may have happened late this past week as the Supreme Court justices gathered here on Amicus, a lot of you.
My name is Jim Santel and this is Amicus, a law review here on the broadcast stations of Civic Media.
devoting the lion's share as we often do of our broadcast to the United States Supreme Court, noting that late this week on Friday, they got together.
It's not a public proceeding, but they got together as they frequently do and had what's called a decision conference, a meeting where they sit around.
We don't get transcripts.
This is not a public proceeding, but they presumably talk about the cases that they have heard oral argument on and also talk about cases that they may be
deciding to review in the future.
They may well have taken a vote, maybe even a preliminary vote as late as this past week about how they're going to decide this terrorist case.
It may already be decided internal to the Supreme Court.
The question, of course, is when do they decide?
We talked a lot about the importance of timing when we discussed this other major oral argument of a couple of weeks ago having to do with a future
of the Voting Rights Act of 1964, appearing there that a majority of the Supreme Court may be inclined to find the section to the fundamental notion of ensuring non-discrimination, no prejudice.
with respect to people of color and language when it comes to voting, that section two may be on the chopping block.
We'll see what happens.
We'll see what happens with the Supreme Court in terms of its timing of that decision.
If indeed it goes down that stunning and shocking road.
The same kind of question is asked here.
If in fact, if in fact the Supreme Court is inclined to find that the president does not have the authority to impose the tariffs, at least under the legislative
rubric the mechanism that he has adopted up to this point do they sit on this for another five or six months while the president continues presumably as he does virtually every week to impose tariffs or send them negotiate tariffs what does that mean and does it not
strike everyone as being advantageous regardless of what the decision is for the Supreme Court to decide this very quickly.
And then of course, if in fact the Supreme Court does trim the sales of this president when it comes to the imposition of tariffs, what do you do about that?
Far beyond the scope of lawyers and even judges and justices, I suspect to understand that, but what do you do to turn this back?
And what does that mean for our allies and our non-allies with whom we have been fighting and wrestling and negotiating when it comes to tariffs?
What about their positions when they find out that the Supreme Court maybe possibly has determined that the president's power to impose these tariffs under the
This theory, this statutory theory is invalid.
All kinds of questions would come from that, all of which need resolution going forward.
Of course, if the Supreme Court surprises all of us, and maybe has already decided to affirm what John Sauer, that very quickly speaking Solicitor General, was advocating for three hours on Wednesday, if they embrace what he has said,
Then the world goes on as it has, and the President's power to do this is affirmed much larger issues.
And that's the commentary.
That's the observation.
If this is indeed the decision of the Supreme Court in the direction opposite to what the tea leaves indicated this past Wednesday, then a huge, huge decision.
a major decision in Supreme Court jurisprudence and for the entire nation about the authority of the president to act.
Foreign facing, foreign facing according to the Solicitor General invoking all kinds of powers and again asking as did Associate Justice Gorsuch, what is the limit of that?
Can Congress simply abrogate, can give up?
and do what the president said a number of weeks ago, which is we just don't need the legislature anymore.
Can they do that?
And what are the implications of a decision in the opposite direction?
This is no small thing.
This is no small issue.
This is no small argument.
And it makes this term of the United States Supreme Court hugely important as we go ahead in America.
Also, a part likely of that decision conference on Friday was decisions about cases that they will be
addressing in the future.
We know well that the Supreme Court has before it a petition from a Kentucky county clerk named Kim Davis, you may recall her.
She has asked the justices to overturn that landmark 2015 decision that extended marriage rights constitutionally
privacy right to same-sex couples nationwide.
You may recall that Davis gained some nationwide attention and an awful lot of criticism after she refused to issue marriage license to a gay couple on religious grounds.
in open defiance of the high court's position articulated in that very lofty Obergefell position.
She was jailed for doing that, six days in jail.
A jury awarded the couple $100,000 in emotional damages, $260,000 in attorney's fees.
She's appealing that she is lost all along the way.
Now she's asking the Supreme Court to overturn that lower court judgment and also to find that.
the Obrigate Failed decision should be overturned.
If they decide to take that, that's a huge signal, obviously, about where members of the Supreme Court, at least four of them, may be.
on that issue doesn't decide the case but whether to grant the writ of certiorari presumably on the docket of the Supreme Court on Friday for its non-private decision conference might be announced might be announced as soon as Monday that is whether to take that case at all an important reason to focus again this coming week on the United States Supreme Court we know that they're going to be in session again on Monday
They're going to skip the Veterans Day holiday appropriately in observance of Veterans Day and then also be back in business on Wednesday.
More cases that we will talk about in our future editions of Amicus, a lot of you.
But along the way, we also know that the Supreme Court has done other things, apart from deciding future cases, apart from hearing oral arguments on tariffs, and four other matters just this past week.
We know as well, we know as well, that the Supreme Court was also at work when it comes to a major issue, a major issue related to transgender passport policy.
In fact, the Supreme Court, again, invoking its emergency
see docket just this past week said something significant about the future of passports that include gender identity markings.
When we come back, we'll talk all about that major decision of the Supreme Court here on the broadcast stations of civic media.
My name is Jim Santel and this is Amicus, a law review.
We are necessarily spending a lot of time focusing upon the United States Supreme Court because they've got a lot of hugely important issues in front of them.
And yes, yes, entertaining oral argument on everything from the future of the Voting Rights Act of 1964 to just this past week, whether or not a president can impose tariffs, an issue that is important for that specific issue.
constitutionally and statutorily, but also important for the separation of powers and checks and balances has got implications far beyond this international and domestic terror issue that animates so much of our attention these days.
The Supreme Court also this past week, once again, invoking its so-called shadow doc, its emergency application doctrine in connection with a major issue having to do with trans
gender passport policies of the United States Department of State.
And once again, permitting the president to go ahead with something that he proposed on his first day in office.
Where does this come from?
We know that the State Department passport policies have grown.
They've expanded since the 1970s or so.
Passports at that time did not include any sex markers, any specific identifications, but in the late 70s.
The department began to include them on passports and among other things by, as this policy began to grow and develop, in recognition of greater civil rights and civil liberties for all Americans, including our transgender populations, the State Department began allowing transgender people to obtain passports with updated sex markers in the 1990s.
There were some restrictions on that and some proof issues and some evidentiary issues that were basically cleared away in 2021.
The State Department issued the first passport with a general neutral marker.
That's simply an X.
And that did not require any specific proof of who you are and what your specific gender identity is, but rather an application based upon your affirmation of your transgender status.
The Biden administration announced that policy, allowing passport applicants to select any gender marker of their choosing.
What happened was that the president on his first day of office entered one of his many executive orders and rescinded that policy and said, no more.
And along the way, the press secretary said, there are two genders in America, male and female.
We're now returning to that time back in the 1970s and before when our passport rules and policies reflected just that.
What happens is a number of parties, including
represented by the ACLU, Sue in federal court, Massachusetts on behalf of about seven people who claim they did not been able to obtain passports that matched their identified gender identity because of the new policy.
And they'd be harmed by the policy when renewing their passports.
That goes up through the courts.
It is enjoined along the way.
And what happens most recently is after receiving in this case called Trump versus or an unfavorable decision,
to the administration.
The administration goes in front of the Supreme Court and asks for emergency relief, lifting the lower court decision
that prohibited the executive order from going forward.
In other words, returning to the old policy.
Supreme Court just late this past week clearing the way for the Trump administration to stop issuing passports that include these gender identity markers and markings on passports for applicants as they request them.
It's an emergency order.
Again, it is an order that is unsigned.
Although the Supreme Court does here,
give us a little bit more insight, not a lot, into the reasons for its decision.
No count, no vote count allocated, although we've got a pretty good sense.
It's six to three once again.
Majority offered four paragraphs of reasoning for granting this emergency request, saying this.
Displaying passport holders' sex at birth, no more offends equal protection principles than displaying their country of birth.
In both cases, the government is merely attesting to an historical fact without subjecting anyone to any kind of deferential treatment.
That's the majority of justices who are siding with the Trump administration in returning to the old way of doing things.
Katanji Brown Jackson, she writes on her behalf.
She writes on behalf of Elena Kagan and Sonia Sotomayor in strong dissent.
She says, it's now become routine.
For the Trump administration to seek emergency relief from the justices after lower courts block its policies, which is what they did here She adds as is becoming routine this court misunderstands the assignment She goes on to say that government had found an obliging audience for its efforts to change the passport rules among the Supreme Court justices government meaning
this administration, this Solicitor General, this Department of Justice.
And so even while the underlying litigation goes forward, the Supreme Court has permitted the Trump administration to deny, to deny applicants who are transgendered to invoke and use this ex designation as they have done for many years.
That's the state of the law today in America.
could be reversed when the case comes up on its merits.
But right now, once again, a shadow docket decision without a lot of explanation, a little bit, but not a lot.
And we've got strong descents to that position as we often do.
Something else happened in the Supreme Court just late this past week, late even Friday night, that is affecting the other major issue that is animating an awful lot of discussion up
appropriately throughout the United States of America.
You know well that a federal district court judge
has previously directed that the Trump administration provide all the funds, all of the monies for the 42 million low-income Americans who are relying upon SNAP funds.
You know those, well, that's the supplemental nutrition assistance program known as SNAP.
That literally provides food on the tables of American households.
And you know that because of the shutdown,
The allocation, the position has been taken, although changing inside the Department of Agriculture that because of the shutdown, they can no longer use surplus funds available in precisely these kinds of circumstances.
If indeed there's a shutdown, what do we do?
If the appropriations of money about $8 billion every month are no longer there, is there a reserve fund?
And the answer is yes, there is.
Doesn't have $8 billion in it, but it's got about five.
billion dollars and over the course of the past couple of weeks some federal district court judges including John McConnell.
He's a US district judge in the district of Rhode Island has said, no, no, you've got to go ahead and use that fund.
You can legally do it to ensure that this SNAP fund program is supported in the middle of a crisis, which we are now in with respect to hunger and food and what's happening in American families on a daily basis.
What happens?
We've got a judge there.
We've also got another judge in Massachusetts saying the same thing and just.
this past week, Judge John McConnell coming back, marking his second legal rebuke of this administration regarding the issue of whether or not the administration can rely on its changed position that it cannot invoke, cannot go back and get these reserve funds.
He has a short but a fairly tense a fairly high velocity a fairly high intensity hearing this past week He criticizes federal officials for ignoring his original order again a theme We've talked about a lot on this broadcast the notion that this administration appears in courts and simply says no to federal district court judges
That, in so many ways, big, small, and in between is the reason why we are in the constitutional crisis that we find ourselves in today.
Before Judge John McConnell, again this past week, he notes that the administration has not followed his previous directive.
And so he directs that the administration quickly restart those payments under the Supplemental Nutrition Assistance Program.
He orders the Trump administration to fund food stamps in full, in full, for those 42 million Americans who need it.
He admonishes the government for delaying.
And under this largest anti-hundred program during the shutdown, he directs that the funds move.
And that's what he does, goes up to the court of appeals, which is the first circuit.
They decline very quickly to overturn Judge McConnell's decision.
And what happens, what happens very late in the night, the Supreme Court again unhappy with the district court order from Judge McConnell directing them.
to follow the law, directing them to follow his own previous directives about access to this, maybe about five billion dollar fund.
What happens is that the United States Supreme Court does in fact clear the way.
clear the way for at least temporarily for the administration not to proceed, not to proceed in providing these funds.
What happens is that late on Friday, very late on Friday, Justice Katangi
Brown Jackson.
Yes, Katanji Brown Jackson temporarily halts the court order that would have required, this again is the order of Judge John McConnell, would have required the Trump administration to fund those food stamps programs in full.
under the SNAP program.
And again, that throws this matter into additional uncertainty going forward.
Significantly, what does this mean?
What does it does it not mean?
It does not mean that the Supreme Court has ruled on the legality of what the president, what the administration, what the agriculture department is doing here.
Instead, it opposes a pause.
Admittedly for how long we do not know, but a pause, it's meant to give what the appeals court, the appeals court that now has before it, Judge John McConnell's lower court decision.
giving the appeals court an opportunity to address this in greater detail, to weigh some of the arguments in this case and determining whether or not John McConnell's order should be upheld.
It's called an administrative stay.
That's what Katangi Brown Jackson did late Friday.
She does that because she is the justice who's responsible for emergency applications coming out of that particular part of the country that is
the First Circuit Court of Appeals, among other states around the country, and we know as well that there are indeed other states around the country that are attempting to fill the gap.
Even while this is happening, those include states like New York and Kansas, Pennsylvania, Oregon, Wisconsin, trying to find the funds inside state funding to ensure that the residents
of those states who have relied upon snap funds up to this point have got access to those funds going forward.
Many of those states announcing plans to
Fill the gap, if you will, while the Agriculture Department suggests that it cannot use those reserve funds to fill the available gap that's going on here.
This remains unclear.
This remains untenable for America.
That is a nation, the wealthiest, most powerful nation on the face of the planet has funds.
available as judges have now found legally to access those funds admittedly, perhaps not to their full extent.
We know that the president initially indicated that he would follow directives of federal courts.
Now we've got a stay on that by virtue of the administrative order entered by Justice Jackson, and we have more uncertainty.
temporarily allowing the Trump administration to curtail this food stamp funding even more.
That coming out of the Supreme Court again just late Friday.
And promising even more review now back at the First Circuit Court of Appeals in the days presumably beginning as soon as early this week, Monday morning.
Because all of this continues to necessarily appropriately attract our attention, our focus, not just of 42 million Americans, but I would offer of every American who's concerned about the lives and livelihoods of residents in our great nation.
Under these circumstances, our justice system, our Department of Justice should be doing better.
Our administration should be doing better.
We look for them to do just that.
As we go forward here in our final segment, we'll talk about some other judges who are also active in the public domain in federal district courts here on Amicus.
A lot of you.
My name is Jim Santel.
This is Amicus, a lot of you, and this our final segment.
We're returning once again to the injunction functions of federal district court judges.
We spoke briefly.
before the last break in the previous segment about Judge John McConnell basically entering an injunction telling the administration it does in fact have to dig into this reserve fund to provide SNAP monies to 42 million Americans.
That's a part of the injunction function of federal district court judges.
Other judges around the country, federal judges in trial courts have been very active this week.
This is a roundup.
This is a rule of law snapshot.
among the many judges acting every single day.
We have a judge we've spoken about in the past, her name is Karen Imregat, Justice Past Week District Court in Oregon.
She is once again saying that the president has overstepped his authority.
when he sought to deploy National Guard troops there in Portland, Oregon, to protect ICE enforcement offices and procedures and initiatives there.
She has basically turned her temporary restraining order into a preliminary injunction, stopping, blocking the president's order that federalized National Guard soldiers in Oregon.
In this lawsuit that was brought by the state of Oregon and California and the city of Portland, she reaffirms this in a 100
and six-page ruling once again saying, Mr. President, no authority.
There is, in fact, no insurrection.
There's no rebellion going on in Portland that would justify this.
We know that coming out of Chicago, the issue there, again, issued by another federal district court in that district, that's now up before the United States Supreme Court on this larger issue of whether or not the president has the authority to federalize the National Guard when it comes to
insurrection and rebellion type situations that he maintains exist in cities like Portland and Chicago.
Lots going on there.
We know going back to Chicago that two federal district court judges issued other opinions, other decisions, other orders.
We've heard from at least one of them before.
Once again, this is district court judge Sarah Ellis issuing a preliminary injunction also now turning her previous temporary restraining order into a
permanent or rather preliminary injunction against federal immigration agents over the use of force.
And this thing called Operation Midway Blitz telling basically administration got applied by the law, got to abide by the law and applying basic constitutional principles when it comes to immigration enforcement initiatives there.
She says she's granting complete relief to the plaintiff.
She says, it's difficult to conceive how an injunction requiring the government to comply with the
Constitution could possibly be harmful.
She said, I find that the use of force as she's seeing it shacks the conscience.
And she says that the conduct by federal agents shows no signs of stopping.
She recites once again, the prohibitions on many of their actions doesn't shut them down.
They've got a right to be there, but cast a follow the law.
She says, when it comes to engaging with the public there, a preliminary injunction entered by judge.
Sarah Ellis just this past week in that same building, in the Dirksen building, in the loop in Chicago, another judge, US District Judge Robert Gettleman.
He's got before him the conditions at that Broadview Ice Facility.
And he says that federal authorities have got to improve the sanitary conditions there inside this ice facility in broad view, much the focus of our recent attention.
His order requires federal authorities to provide detainees, immigration detainees there with things like clean bedding, sufficient place to sleep,
a shower at least every other day, clean toilet facilities, three meals a day, a bottle of water with each meal, supplies of soap, toilet paper, and other hygiene products, and so forth.
The judge says people shouldn't be sleeping next to overflowing toilets.
They should not be sleeping on top of each other.
He talks about all this as being unnecessarily cruel and enjoins the government from...
continuing to operate under that circumstance.
That happening in Chicago.
We've got other judges around the country doing other things.
There's a federal district court judge named Jill Otaki.
She is in Hawaii.
And just this past week, she found that the Food and Drug Administration violated the law by imposing restrictions on accessing Mipha Pristone.
Remember that drug?
You know that drug.
That's the one that's the principal drug that's used for reproductive services and abortion.
in America.
And this federal judge in Hawaii rules that the allegations brought by the American Civil Literary Union having to do with restrictions on access cannot be supported.
The ACLU lawyers had asked the judge to find that the FDA violated the law, but did not seek an immediate elimination of those restrictions, which right now includes some special certification for prescribers and pharmacies and also requiring patients to review.
a counseling forum.
The judge, Jillo Taki, once again, saying that by failing to provide a reasoned explanation for its restrictive treatment of the drug, the FDA engage in unlawful activities.
Finally, finally back in Washington, D.C.
District Judge Amir Ali, we've talked about him in the past, he is ordering the White House to restore ASL, American Sign Language Services interpretation at its
press briefings when the president or the press secretary is speaking white house press briefings he says engage the american people on important issues affecting their daily lives in recent months war the economy health care
Global pandemic, he said in recent years, the exclusion of deaf Americans from that programming, in addition to likely violating the Rehabilitation Act, is a clear and present harm that the court cannot meaningfully remedy after the fact.
And for that reason, the judge indicates that the White House needs to apply
its best efforts needs to comply with the Rehabilitation Act and ensure that ASL services and interpretation are a part of the routine presentations in that press room.
All of that inside the injunction functions of federal district court judges, which we will continue to monitor, not just in this week, but in future weeks.
You're on amicus a lot of you.
Come back again next weekend for more discussions about the rule of law.
justice in America and the ways in which government interplays with all of this.
Have a great weekend, everybody.
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