‘The Supreme Court is on trial’: David Frum explains Trump’s tariff case before the U.S. Supreme Court

Leading author, journalist, and thinker David Frum and The Hub’s editor-at-large Sean Speer discuss the U.S. Supreme Court’s review of Trump’s use of emergency powers to impose tariffs and its implications for the president’s policy agenda, the executive branch’s relationship to congress, and the U.S. Constitution itself. In the second half, they cover Canadian property rights in light of the Cowichan Tribes decision in British Columbia and the bigger questions that it raises about the relationship between Indigenous rights and Canada’s broader system of laws and governance. You can listen to free versions of this episode on Amazon, Apple, and Spotify. If you liked what you heard in the first half of the program and wish to subscribe to full-length editions of In Conversation with David Frum, please consider becoming a Hub Hero. Hub Heroes also get access to all our paid content on TheHub.ca. All these benefits are conferred for one year. Sign up now! Program Transcript This is an automated transcript. Please check against delivery. SEAN SPEER: Welcome to In Conversation with David Frum. I’m your host, Sean Speer, editor at large at the Hub. I’m grateful to be back in conversation with David for another installment of our bi weekly video and podcast series on the key issues concerning Canadian policy and politics. On the first half of the show, we’ll cover the U.S. supreme Court’s hearings on the Trump administration’s use of emergency powers to impose tariffs on countries around the world, including, of course, Canada and their economic, political and constitutional implications. On the back half, exclusive for Hub heroes and fellows, we’ll come back to the subject of indigenous land rights and their interaction with Canada’s system of law and governance and what it all means for property owners and the country itself. David, thanks as always for joining me. DAVID FRUM: Oh, it’s so good to be with you on this dramatic day. SEAN SPEER: Indeed. One to 24 hours. We have lots to talk about, but as listeners and viewers know, David, we are seized by yesterday’s budget from the Carney government in Ottawa. And before we talk about some of the things I want to cover with you, let’s just get your top line reaction to the budget, what you think it tells us about the Carney government and some of the bigger issues it’s confronting, including, of course, evolving relations with our principal economic and security partner, the United States. DAVID FRUM: I want to focus on one thing in the budget first. There’s so much to talk about, but I want to focus on the commitment to a big increase in the defense budget. Now this is, of course, welcome news. It it should have happened a long time ago. It is better late than never. Better better soon than late, but better late than never. But here’s what I worry about. Can’t defense budgets are, are finite, especially for a country the size of Canada. You cannot defend everything. So you need a strategic concept about what you’re doing and why. Since time immemorial, since really the Second World War, Canada’s strategic concept has always been to insert itself within a larger framework of security provided by other people. What that means in practical terms is Canada never worked that hard on things like cyber security because somebody else in the alliance had that job, often the Americans, but not always. And the assumption was if there were a foreign adversary, cyber attack on NATO systems, Canada would be splashed because of its association with others and there would be a coordinated response. So Canada didn’t have to defend that. Canada also took more or less the same view to the Arctic Sea. Canada did not have the naval capability to defend those waters by itself because it always assumed that it would cooperate with allies, not just the United States, but Britain and others, to defend those waterways. So if that strategic concept is no longer valid and that’s the reason for your big spend, then you have to ask some hard questions about what is the money for? What are the dangers that you face, both internal and external candidate faces? What if there’s an internal security challenge? What if there’s civil disorder? What if there, as we’re going to discuss later in the program, there’s uncertainty about property rights? What if there are some armed invasions of other people’s property? Is the Canadian government ready for that? What about cyber? What about espionage? So you need to begin not saying here’s the figure, but here are the top threats. Here are first, second and third priorities. Who defends everything, defends nothing, as the old saying goes, and have a plan. I think in this case the number came first and the risk is simply the money will be captured and spent where the by elections are. SEAN SPEER: Yeah, well said. It reflects a broader challenge for Canadian policymakers to confront the reality of that the United States is a less reliable trade and security partner. As you say, it’s the impetus for the increase in spending. But one gets a sense that the mindset of those in Ottawa are still locked in the past. In a way, David, it’s a good segue to the big issue I want to discuss with you today, and that is the U.S. supreme Court taking up the Trump administration’s use of the International Emergency Economic Powers act to impose tariffs on Canada and others. It strikes me as an important moment economically, politically, and possibly constitutionally for the United States. As you know, and increasingly our listeners and viewers know, the law makes no mention of tariffs. It isn’t really about regulating trade. And yet, as I said, it’s formed the basis of the Trump administration’s imposition of tariffs on economies around the world. Before we get into some of the particular details, how are you thinking about today’s hearing and its possible significance? DAVID FRUM: I don’t think it is the AIPA law that is on trial. I think it is the Supreme Court that is on trial. The answer is obvious. The answer is inescapable. And the question is, will the court deliver it? If the court does not, then then there are real questions about the integrity of the court. And let me put this in some historical context, please. AIPA was passed during the Carter administration, and it was passed as a way actually of limiting presidential power, not expanding it. The backstory here is when the United States entered the First World War in 1917, it passed a vast array of emergency statutes, including a law called the Trading with the Enemy act that gave the President enormous economic powers. World War I ended of course in 1918. The peace treaty is concluded in 1919. But the United States never formally ended the First World War. It never, it never repealed the declaration of war. It never returned to a status of non belligerency. So the Trading with the Enemy act remained in force into the 1920s and into the 1930s. A lot of Franklin Delano Roosevelt’s emergency actions were based on the Trading with the Enemy Act. When, for example, he prohibited private citizens from owning gold in non coin forms, gold bars, gold bricks, and demanded that they sell all their gold holdings to the US Government, which would otherwise be an astonishing violation of constitutional property rights. He relied on the authority under the Trading with the Enemy act in the 1970s, after Watergate, after the Vietnam War, Congress said it is time to revisit all of these emergency powers. And we have to. We’re going to formally end the First World War, which I think they did sometime in the middle 70s, and we’re going to regulate emergency powers and control them. So the first thing we have to understand about IPA is it is meant to be more modest than the Trading with the enemy act of 1917. And it’s meant to regularize and make predictable the President’s economic emergency powers in a way that was less than he had before. That was the goal of the statute and a historically minded conservative court should pay attention to that. As you say, it says nothing but tariffs. The first question is, is there an emergency? The First World War is an emergency. Who decides? Can the President, at his own sole volition say there is an emergency? Doug Ford hurt my feelings. That’s an emergency. There’s an emergency. No one can question it, no one can litigate it. That’s his position. No external authority can litigate whether the emergency exists and when there is. When I declare an emergency, I acquire powers to tax, I have powers to spend, I acquire powers to refrain from spending. And oh, by the way, in another case, I’m claiming the power to regulate the monetary system without Congress by firing anyone I want from the Federal Reserve. In other words, Article 1 of the Constitution gone. Anytime the President says Article 1 the part of the Constitution against the Congress power over taxing spending and the money supply gone at my sole discretion. That cannot be true. Even the Presidents who had the Trading with the Enemy act could not do that. So they have less than the Trading with the Enemy Act. They certainly can’t do it. And the question is, will the court say so or will it whiffle, as it so often whiffles in Donald Trump cases? SEAN SPEER: A brilliant analysis, David. Now, I said I was going to cover both the economics and politics of this question and you went right to the constitutional nub of it. Let’s stay here for a moment. Because you worked for an administration that had, one would argue, an expansive view about the power and scope of the executive. My understanding as a non American is that the political system, including the judiciary, tends to be deferential to the use of executive power. Why is this particular case different? Why in your mind does the court need to put some constraints on the administration’s interpretation and use of the emergency powers in this law? DAVID FRUM: Well, first, the emergency that the George W. Bush administration responded to was the blowing up of the World Trade center by terrorists and the killing of 3,000 people. Not the president’s feelings were hurt by a TV commercial. But second, there was still a congressional apparatus. I mean, George Bush went to Congress and got authorizations for the use of military force, first against Al Qaeda and then against Iraq. They weren’t declarations of war, but they were authorizations of force as broad as the presidents have had in the other conflicts since 1945. One of the reasons the United States no longer declares war is because war gives the president too much power over the economy. Congress is afraid of triggering all the powers the president has with a formal declaration of war. So they do these more limited it’s not a global war. You are authorized to use force to protect shipping in the Persian Gulf. You are authorized to use force to track down the killers of 9/11. You’re authorized use force to change the regime in Iraq. But you can’t do anything all over the you can’t go to war with China with the power we just gave you to go to war in Iraq. That you can’t do that and nor can you tax and nor can you spend with your own volition that you our other powers of taxing, spending, non spending and the money supply, we keep those. We’re delegating you certain powers for a real emergency that we have agreed exists in Congress. We voted to recognize it. Donald Trump wants no recognition by Congress, no right of Congress to question it, no right of the courts to question it. I declare the emergency and it’s anything and it’s global and it’s permanent. SEAN SPEER: I won’t ask you to predict the outcome per se, but knowing who is on the court and their different predispositions and Preferences help our audience understand how this may play out. Who should we be looking to, in effect, adhere to that conservative perspective that you’ve been outlining? DAVID FRUM: Well, I remember an old editorial cartoon which showed a harassed bureaucrat at desk saying something like, right, boss, I’ve got it. We’re going to steer a sensible middle course between sound policy and total lunacy. And I think that that’s what we’re going to get, a sensible middle course between sound policy and total lunacy. That is, I don’t think they will agree that the President can unilaterally make up out of his head any emergency for any reason, declare it forever and tax on the base of it. But the correct answer, which is to say, whatever IEBA means, it means you have fewer powers than the President who had the Trading with the Enemy act did, and for sure you cannot impose tariffs. Congress has power over tariffs. They delegate. When they want to delegate you tariff power, as they have sometimes done, they’re quite specific about it. When they grant you trade promotion authority, which Donald Trump has never sought, they give you power to negotiate a trade agreement. But these are delegated powers, and Congress can’t delegate them once and forever. Congress must delegate them each time. So if you say there’s an emergency with fentanyl, you go to Congress and you get a fentanyl emergency declaration, and then your measure should be rationally related to the fentanyl problem. SEAN SPEER: Now, if that indeed is the outcome here, what does it mean for the Trump administration’s tariff policy? It’s fair to say its blunt use of tariffs is at the core of its political economy agenda. It is the key differentiation between it and past administrations, at least as it relates to economic and and trade policy. Would it be at serious risk? And if so, what does that mean for Washington’s budget picture and the Trump administration’s policy agenda more broadly? DAVID FRUM: Well, the immigration policy is essential, and I think this is a point that is not getting enough attention on the trajectory we’re on. 2025 will be the first year since the first census in 1790, when the population of the United States will shrink. And that is entirely. That is based not just on rounding up and expelling people, but on frightening people into leaving and deterring people from coming. So the shrinkage of the population is a very large economic fact, as well as all of its other human and moral implications. Sure. So that’s important. They’re in a dilemma, and I don’t know how to predict, I don’t know how this looks from their point of view. On the one hand, having the court strike down their tariffs would save them economically. That is an exit from a dilemma. It’s the thing they’re doing that is wrecking the economy, damaging consumer confidence, hurting the wellbeing of so many Americans of the court said, that’s it, the tariffs are over. In fact, it would be a rescue from a terrible self inflicted mistake. On the other hand, it would also be humiliation and it would make Trump look weak and crazy and he would rant and rave afterwards, and if he ranted and raved ineffectually, and then he would be tempted to flex his power in some other abusive way because that’s how he responds to any kind of limit. So it might have those kinds of negative psychological consequences. From a strict economic point of view, if it had happened earlier in the year, it would have been better. But it will make a difference. It will help the economy. If the court says no, the tariffs are crazy, they’re irrational, they are nothing but destructive, and they’re also forces for corruption because anybody with real economic clout says it’s too big a lift to end the tariff. But I can buy my own personal corporate escape from the tariff by giving the President money for, for example, his ballroom. SEAN SPEER: We’ve, we’ve talked in the past, of course, about President Trump’s dominance of the Republican Party, the extent to which he has imposed himself in his politics on members of the Republican Congressional caucus and state representatives and so on. In a world in which these powers are not available to him to impose tariffs, is there any reason to think, David, that he could cobble together a congressional majority to pass, if not the current set of tariffs, some diminished version, or is his tariff agenda possibly seriously undermined? DAVID FRUM: Well, he no longer has a functioning majority in the House of Representatives. That’s why it’s closed. He wants to cover up the Epstein he files and he doesn’t have the votes to do it. So if you can’t get your friends and colleagues and colleagues in Congress to do that, passing a tariff bill is very complicated because you just look, the United States, the last time it passed a tariff bill was, I believe, the Smoot Hawley act of 1930, which is, believe it or not, still theoretically in force, because Congress has to. What’s the tariff on wool? What’s the tariff on cotton? What’s the tariff on Dacron? What’s the tariff on, you know, marine merino wool? I mean, every, everybody, Henry George, the great free trade writer, had a wonderful observation that to introduce a tariff bill Into a Congress or Parliament is like throwing a single banana into a cage of monkeys. Pretty soon they’re all screeching and yelling for their. For their banana. So that’s it. You introduce a tariff bill, everybody has ideas about the industry they would like to protect and the industries they would not like to protect. He’s got another problem, though, which is the result of the vote, Tuesday’s vote, everyone’s focused on New York City. But the more important vote, from a national political point of view, maybe what happened in New Jersey, where we saw that Trump’s brief moment with Hispanic voters in 2024 is over. And that means. That means that his plans to gerrymander the state of Texas suddenly look very unstable because what you. This is where he loses his grip on Congress. What you do with a gerrymander is you say, look, I’ve got a certain number of seats where I’ve got big majorities. What I will do is shrink my majorities in all the state seats that I have that are safe and use some of those voters in other seats that are more contested. But the premise is that your safe seats are really safe. What is happening is when you start giving away votes from your safe seats in a year when those safe seats aren’t safe, you are jeopardizing the particular career of individual Republican congressmen and women from Texas say, wait a minute, I won my seat by 58. I can give. I thought I could spare six, but if it looks like in the next election I’m going to have 51, I suddenly can’t spare that six. You, I need to keep my six. And you’re threatening my livelihood with your plan to. By going for this, the other guy seats, you’re putting my seat at risk. And then individual members of Congress begin to defect because they’re angry at what you’re doing at the state level to put their seats in jeopardy. SEAN SPEER: Penultimate question on this half of the show. Game out. What this means for Canadian policymakers. As you know, we’ve not signed a quote, unquote deal like some other countries around the world. Those negotiations are on again, off again. We’re presently operating within the USMCA regime, but there’s a concern, of course, that that may go at some point and we’d be subject to tariffs. How should the Carney government be coordinating its own trade negotiation policy as this court case begins in earnest? DAVID FRUM: I’ve said the same thing to you and to many audiences hundreds of times since November of last year. Slow. The answer is slow. Trump’s power over the economy will weaken. Chasing a deal prematurely means you lock in when he’s stronger rather than locking in when he’s weaker. His parents are becoming more unpopular. They’re becoming more of a threat to his hold or what remains of his hold on the House of Representatives. He’s conceivably in danger even in the United States Senate where the Republican majority is stronger and his administration is going to just become more panicky and jumpy. Now they may be more irrational and punitive as we saw when he didn’t like Doug Ford’s TV ad. But in the course of a negotiation. Look, the asymmetry is very great. Americans have more power, so Canada will lose. But the slower you lose, the less you lose. SEAN SPEER: Yes, David, I said that. It’s been a pretty extraordinary 24 hours. We have Madani’s win in New York City, something we talked about on our last show. We’ve discussed briefly the tabling of a federal budget here in Canada from the Carney government. There’s reports of floor crossings from the conservatives to liberals that might actually give Prime Minister Carney his elusive majority. The beginning of the Supreme Court case in Washington. The other big news of the past 24 hours is the passing of former Vice President Dick Cheney. As we wrap up this segment, may I just ask you to reflect on him, his public service, his conservatism, his life and, and how you’re thinking about it today? DAVID FRUM: Well, I, I’ll refer to an article I posted in the Atlantic yesterday that will offer these thoughts in fuller form. But Cheney arrived in Washington in 1968 as a 27 year old intern. He got his first job in government in, in the Nixon White House a couple years later where he was working on the something called the Cost of living council. By 1974, he is chief of staff. At age 34, chief of staff to the President, United States. How did that happen? And the answer is. Well, Watergate happened and everybody above him got fired, got indicted, quit, quit in disgrace. Quit to get out of town. So the White House sort of emptied out and it was him and Don Rumsfeld. And so Rumsfeld becomes chief of staff, makes Cheney his deputy. Then President Ford fires his secretary of Defense, James Schlesinger for gross insubordination because Schlesinger got a little. It was another Watergate idea that, well, I was a Nixon guy. I don’t have to defer to President Ford. Yeah. So he got arrogant and high handed. Ford fired Slicinger, moved Runsfeld over to Defense and Cheney became chief of staff at age 34. And he became chief of staff at a moment of weakness and humiliation for the United States. And his life’s work, through all his political career, was to restore the strength and power of the presidency within the United States and the United States in the world. And that’s a consistent through line in his career from 1974 to 2024. And so when the United States was struck by Al Qaeda and look, I think because of mistakes on the, because the Bush administration was not vigilant enough that it could have been prevented and that knowledge haunted people and made them. I think the reason the Bush administration was over vigilant on Iraq was because of guilty awareness of having been under vigilant on Al Qaeda. I think he completely believed that there were weapons of mass destruction in Iraq because he was now primed to take the most ominous view of potential dangers of the United States, because He was in 2004 the same man that he was in 1974. And in 2024 when Donald Trump ran again as the candidate who had tried to overturn an election and was taking the presidency beyond Cheney while he was in favor of a strong presidency. He had been Republican whip. He had written one of the best books, Kings of the Hill, about congressional political power. If Bush hadn’t, if President the first President Bush hadn’t named him Secretary of defense in 1989, he would surely have been speaker of the house in 1994. He was very aware of the powers of Congress, too. And although he had a big role for the presidency, he didn’t have an infinite role for the presidency. And when Trump claims an infinite role, he reacted same man all the way through. And it’s a career that was in service of ideals, in service of American strength and greatness as he saw it. There’s nothing selfish about him. And, and I think one of the things that his detractors at the time have to recognize at his death is, you know, he, he did things because he thought they were right. Not for him, but for everybody. And he, whether you agree with his assessment or not, is a different kind of politics than the politics we’re seeing now. SEAN SPEER: What a wonderful way to honor Vice President Cheney. And to wrap up this segment of in conversation with David Frum. We’ll pick back up on the second half exclusive for Hub Heroes, Hub Fellows.