‘Bet against the president winning’: Could an American Supreme Court ruling save Canadian trade?

This week, the Supreme Court began hearing a historic case that will decide whether President Trump acted lawfully when he imposed “emergency” tariffs against many countries throughout the world. Harrison Lowman speaks to Geoffrey Sigalet, director of the UBC Research Group for Constitutional Law, about how he thinks the court might rule, and whether the Trump administration will have to pay back $100 billion in tariffs. Program Transcript This is an automated transcript. Please check against delivery. HARRISON LOWMAN: I’m Harrison Loman, managing editor of the Hub. Well, it’s one of the most monumental cases to reach the Supreme Court in years, and it started this week. It’s President Trump versus several states, along with a handful of business groups. What’s the question on people’s minds whether President Trump acted lawfully when he imposed a series of emergency tariffs against trading partners around the world in the name of national security? Here to help us answer questions around that, Geoffrey Sigalet is director of the UBC Research Group for Constitutional and an assistant professor of political science at UBC Okanagan. Geoffrey, how’s it going? GEOFFREY SIGALET: Thanks so much for having me on the show, Harrison. HARRISON LOWMAN: You’re very welcome. You’re very welcome. So part of this is going to be a history lesson show to invoke these tariffs in the first place. Walk us through this, Jeffrey. Trump invoked something called the 1977 International Emergency Economic Powers Act. What did that allow him to do? What is that thing I just said? GEOFFREY SIGALET: Well, that is a statute that was enacted basically to allow for emergency economic authority, including the regulation of imports in the language of the statute. Right. And what he argued is that that allows him to impose tariffs on the entire world, actually. So it’s not just Canada. There are Canadian products at stake in this, but Canada is not at center stage. This is about the entire world. And some of the challengers to the to the law are actually American companies that are importing wine from other parts of the world. Even like there’s very much almost universal application of this to different countries. It doesn’t apply to every single country in the world, but it applies to. HARRISON LOWMAN: Much of the world and most of them allies or former allies, whatever we want to call them. GEOFFREY SIGALET: That’s right. There’s no exception for the United Kingdom or whatnot. Right. HARRISON LOWMAN: The Trump folks are saying this is an emergency situation which then warranted us being able to leap ahead of Congress and be able to invoke these powers what they would describe as an unusual and extraordinary threat in Canada’s case. Tell me if I’m wrong here. They say the emergency is around an influx of illicit opioids and other drugs. Is that what it rests on when we sort of think of how Canada relates to all this? GEOFFREY SIGALET: Yeah. So you can think about it this way. Not every tariff, not some of the big, biggest tariffs we’re fighting over are not actually part of this, but many of them. But there are a set of universal low tariffs that are being applied to Canada under IPA as part of What Trump, when Trump came in in the spring and said that Canada has this problem with fentanyl coming across the borders, and that’s what he used to justify this, that it’s a border security thing he also talks about, but it’s also a larger economic rationale of the trade imbalance, economic national security rationale. So he said the trade imbalance of the United States and the rest of the world has gotten so bad that that actually threatens American National Security. HARRISON LOWMAN: $1.2 trillion deficit, right? GEOFFREY SIGALET: Yeah, I guess so. I can’t remember the number off the top. HARRISON LOWMAN: Don’t worry, I have it on the paper here. GEOFFREY SIGALET: Yeah, but he’s arguing that that’s a national security threat, too, which is part of why he can invoke this statute that is supposed to be about emergency powers dealing with things like national security. And so you’ll see, you’ll hear a lot of that in the oral argument for the Supreme Court. And to be fair, just for one thing, you said, you know, we want to be fair. And what his lawyers will definitely not say, that they want to leap ahead of Congress. They will, what they, what the lawyers are going to say, what Trump’s lawyers will say is that Congress intentionally enacted this law, ipa, to grant the President the kind of power to deal with the kind of situation we face where there are security threats relating to, to trade with countries like Canada or trade with like other countries that affect the ability of Americans to ensure that that American thing, that stuff that, like, let’s say military grade products are produced in the United States or even products that relate to military security, like steel, are producing the United States. And I mean, I say the steel, but steel is actually the Canadian steel tariffs are covered by a different statute. But anyway, that’s the kind of rationale that he’s going to argue. He’s going to argue that Congress delegated this power that he’s using properly. HARRISON LOWMAN: And what is the rationale for the challengers? How would you describe the argument that they’ll bring forward? And they’ve started sort of saying before. GEOFFREY SIGALET: The Supreme Court, okay, so the arguments, the challenge they’re going to bring are going to be of different types. One of the most basic arguments that probably will be successful is that they are going to argue that the language of the law of IPA does not favor the President because the AIPA does not say anything about tariffs. It doesn’t say anything about duties. And here’s the basic, here’s the basic problem is that the Constitution grants power to Congress over duties and excise taxes and whatnot. So Congress has to authorize the President to use those kinds of powers under the American constitution, under Article 1’s enumerated powers. Right. And so what the President’s got to argue is that the statute does, but the statute does not use the words tariff or duty or anything like that. And here’s the problem is that almost every statute that, that ends up being exercised in relationship to tariffs or duties, when it does use the language, those, those terms of some kind. And this explicitly doesn’t. Yeah, yeah, yeah. And the statute doesn’t. And so the President’s lawyers were really clever. They looked back and found an example of a case that was, of a statute that, that was used to authorize contemporary tariff tariffs related to relating to trade imbalance in the Nixon, under Nixon, and that was called the twea, the Trading with the Enemy Act. And they argued that that statute was used for tariffs. And so despite not having, not having explicit language about that in the section invoked. And so that should authorize the President to use this statute that way. And so it’s this case called Yoshida. And the lawyers at the lower court level have very cleverly argued for Yoshida as precedent for their claims about aipa, about the small statute that we’re, we see at stake with us right now. So just, just keeping it simple, one argument is statutory, Right. The challengers are saying the statute doesn’t authorize this and the Constitution requires the statute to explicitly authorize this. HARRISON LOWMAN: Yeah. GEOFFREY SIGALET: The other argument that’s tied to the statutory argument is that is the major questions doctrine, which requires that if Congress is going to, if Congress is going to authorize something like this, a core enumerated power, it has to do so explicitly. And for the President to be exercising that kind of power related to a congressional power, there must be some explicit delegation of that power. Right. So that’s a kind of constitutional argument tying into and leaning on and supporting and being tied into the statutory argument to an extent. Right. Do you have an even bigger kind of constitutional argument though, which is that there would be something wrong. One argument that the challengers might take that’s even stronger would be something like the non delegation doctrine. So the basic non delegation doctrine is a controversial doctrine that hasn’t been used that much in the US Case law, is that Congress cannot fully delegate just over, cannot. Congress cannot just hand over in a statute unrestricted power over a power that itself has. It has to be setting conditions and terms on it. Right. Of different kinds. And the, one of the challenges arguments would be like on the interpretation that the president’s lawyers are offering. They would be arguing for non delegated for power that could not be delegated that proper way. They would be basically arguing for unlimited delegated power. And if their interpretation statute was right. And I think that that non delegation argument is the biggest swing for the fences the constitutional lawyers might make who are challenging the president’s law. But they have a very stronger case and a stronger likelihood of winning on the statutory argument and the major questions argument. And they won at the federal, the appeals court about the federal court appeal. They won at that court with those statutory major questions doctrines. HARRISON LOWMAN: Let’s remind people that he lost. They lost at the U.S. court of Appeals for the Federal Circuit. Looking at the Supreme Court though, Jeff, you know, the layperson looks at the folks behind me, a 6:3 conservative majority in the Supreme Court with three of the justices being appointed, nominated by Trump in his first term. The layperson would say, you know, this favors Trump. What does the experts say? What do you think when you look at the makeup of that bench? GEOFFREY SIGALET: Well, look, I mean the expert says that the layperson has something, you know, is onto something. So layperson says, look, politics is clear influencing law. And then lawyers sometimes try to fantasize about how that’s not the case. You know, and that’s, and the layperson is right that like politics influences law. And the good lawyers know that too. Good lawyers use, try to use the political views and the different ideological kind of bent of the lawyers of the judges that they’re dealing with to try to win their arguments. Right. So but it’s a little more complicated than the expert should say. Politics does matter. But it’s a little more complicated than just Trump or Republican appointment will vote against, will vote for Trump here. And one thing that complicates things is that the legal conservative movement is not always on board with so many Trump’s, Mr. Trump’s ideas about how presidential power should work. So even lawyers he appointed, you know, it’s sort of like you got to think of American politics as fundamentally always very coalitional. Right. There’s not the president isn’t in Congress like just getting his way on everything and setting the congressional agenda directly. Like every, every bill in Congress is a private member’s bill, right? Well, similarly to like his appointments to the court, it’s a coalitional thing. He’s got to rely on American right of center lawyers who come in different stripes. Right. To, to further and be his coalitional allies on the courts. Right. But they are not always on side with everything he’s doing. And on these kinds of issues about the separation of powers and about statutory interpretation and about executive power, many of them are not on his side philosophically or so I think it’ll be very, very interesting to hear what these different justices say. So interestingly though too, like the approach to separation of powers and to or the non delegation doctrine or the major questions doctrine, the approach taken by some of the liberal justices philosophically sometimes might even be on Trump’s side here. Right. And actually interestingly at the federal court you saw one Obama court appointed justices joined a dissent joining supporting Donald Trump, supporting Trump’s lawyers view of how that IPA statute should be read. So we could see a liberal lawyer, a liberal appointment, a Democrat appointment peel off and, and support Trump. Potentially we could see and we can see Republican appointments peeling off and are not peeling off, but we can maybe even think reliably that some of them will philosophically be interested in siding with the, with the challengers to this use of IIPA if you want. My prediction is I don’t know what to predict. I don’t know, I don’t know exactly what’s going to happen at all. And I haven’t listened to the argument. I just started listening to it. I was looking at SCOTUS blog kind of discussion. So we’ll really see what happens. But here’s the sort of thing to watch for. And here I’ll tell you, I want to tell listeners what I’m listening for. I’m listening and when I listen to the oral argument, what I’ll listen for is, is the extent to which justice, like let’s say Justice Gorsuch and Justice Barrett especially, who are more hawkish about the separation of powers and especially Justice Gorsuch is very strict in his textualism about statutory interpretation, is famously controversial with conservatives in the Bostock case and his strict statutory interpretation in that case. And so I’m listening for them, how hawkish they’re going to be on this. And I’m also listening for someone like Justice Roberts who probably is similarly hawkish about those things, but is also very much a politician in the sense that he’s a chief. He’s got to make decisions about who writes opinions and what and how this goes. And he’s got to make decisions about how he votes that really carefully think about the court’s institutional prestige and its relationship to and its authority, its legitimacy. Right. HARRISON LOWMAN: Just lastly, I just want to give our viewers a sense of like how this could pan out. Before I leave you like, in terms of immediate impact, let’s say Trump loses and he said this could be catastrophic for the nation’s economy. Does that mean they have to refund like some $100 billion gained through tariffs? Does that make all the trade agreements they’ve been signing null and void? Like, can you just paint a picture from what, you know, in terms of what things would look like months from that decision coming down the pipe? GEOFFREY SIGALET: Okay, so a lot of things could happen. One thing is that a hundred, like $100 billion got to be repaid to companies that have paid into this. Right. Coming in. So that’s a huge amount. Now maybe, I mean, maybe there’s a silver lining in that. It’s kind of like a stimulus to an extent. Like all these companies get this money back and then they, they buy more American products with it or whatever. Right. The other thing though, it’s going to happen is that if he pay, if he’s paying back that money, he’s going to immediately start looking for other ways of imposing tariffs. So he’ll start to use those other instruments, many of them, like the retaliatory instruments he uses against Canadian softwood lumber and Canadian aluminum, which is a separate, based on a separate act. It’s not this, it’s not this IPA act that’s at stake here. And he’ll look for other instruments to do it. And he may, may try to get Congress to amend IIPA to grant him this kind of more long standing power. Right. HARRISON LOWMAN: It’d be kind of an irony there. GEOFFREY SIGALET: Yeah, yeah, yeah, yeah, yeah. Well, but, but the interesting part about the American system is he may not be able to get the votes. Right. There’s lots of republic, there’s, there’s a subset of the Republican Party that is not going to be in favor of this. Right. And there’s Republican senators and Republican members of the House that will not want this or will want things in return if they do sign on to something like this. And so American politics, it has this coalitional deal making part. Even when you have someone that has captured a lot of the Republican energy and leadership, though, so strongly the way Trump has. And so we’ll see what happens. The institutional legitimacy of the court, he probably will attack the court if they don’t side with him. And my bet right now, my bottom line bet again, if I was a betting man, would be to bet against the president winning. I haven’t listened to the oral argument, but I think that these, the lawyers in who are challenging the law are them are so many of them are members of the legal conservative movement. And they are very going to be very good at crafting their arguments to appeal to Justices Gorsuch and Barrett and, and perhaps others like, you know, we don’t know. It could be, it could be significantly against the president. It could be, you know, we could see a super majority vote on the, on the Supreme Court. HARRISON LOWMAN: Well, there’s been battles brewing between courts and the president for some time, and this will be the supreme battle in many ways. So we’ll look for that. All right, that’s Geoffrey Sigalet. He is director of the UBC Research Group for Constitutional Law, also an assistant professor of political science at UBC Okanagan. Jeff, thanks so much for joining us. GEOFFREY SIGALET: Thank you, Harrison.