Trump Has Many Other Ways to Impose Tariffs: Rod Martin

And joining us now for discussion is Rod Martin, political analyst and founder and CEO of Martin Capital. Rod, great to have you here. What an incredible ruling with wide, wide implications. What's your reaction? Indeed, and great to be here. Thank you for having me. The tendency is to agree with Jonathan Turley on everything, but in this case, I do not. I'm not entirely convinced that the Supreme Court really did that much here. And in fact, I think MSNBC is convinced that, you know, it's this massive restriction on the president, when in fact, it was really very narrow. As you read the ruling, what you realize is that it turned on the major questions doctrine, which means the Supreme Court says that Congress and the president need to get together and figure it out. What it didn't do was overturn the president's ability to unilaterally impose tariffs, which is a remarkable thing. It did overturn his ability to do this under IEPA, but not under the countless other statutes passed since 1930 that give him discretion within certain limits. Now, he'll have to be a little more creative about some of that. But the reality is under the Trade Act of 1930 alone, he has Section 338 authority to impose duties of up to 50% for any reason he wants, as long as it's national security related. He can literally do everything he's currently doing just under our oldest Trade Act, and the Supreme Court did nothing to overturn that power. Rod, is it possible that if Trump does take this avenue, that we may end up in the same situation? In this ruling, the Supreme Court basically said, okay, if we allow you to do this under this act, you can just use emergency as a pretext for anything. If the president takes the path you've outlined, could we end up here where the Supreme Court says, well, in that case, the president can just use the pretext of national security to impose any type of tariff that he wants. Well, the difference is that under the 1930 Act, so we're really talking about Section 338 authority, there has never been any question that this was constitutional. The only route to go with that would be non-delegation doctrine, which the Supreme Court has gone out of its way not to rule on recently. We had the Jarkissi case in 2024. One leg of that coming up from the Fifth Circuit was specifically about non-delegation doctrine, and the Supreme Court just pretended it wasn't even there. So I think they will get to a ruling on non-delegation, but as things stand, Congress clearly has the power, which has been upheld repeatedly and even recently, to give the president this authority under certain constraints, and the Chief Justice's majority opinion plainly says that as long as he lives within those constraints, he's fine. So where do you see the biggest impact coming, Rod? I actually suspect that there's going to be very little impact, and the first part of that, the Supreme Court did not take up the question of whether the Treasury would have to refund the tariffs already collected. That's a pretty big omission in my book, and the other thing they didn't do that pertains to that is they didn't overturn Congress's delegation of authority to the president under IEPA to impose fees or to just prevent countries from trading in the United States at all. So since they have upheld those things implicitly or explicitly, it would be very easy for the president to impose a Section 338 tariff of 50% or less and say, this is retroactive to January 20th of last year, or even to reclassify the existing tariffs as fees. I don't know if that would hold up on appeal, but it may not matter because once we enter trade deals with all these different countries, which is well underway, and many of those deals are already done, that's completely separate from this argument. If Britain agrees to a U.S. tariff of a certain percentage on its goods, that's a done deal, and this case has no application to it whatsoever. Fascinating. How about one of our major trading partners, adversaries, China? The president is going there trying to get a trade deal. He's going there soon, next couple of months. How will it impact those negotiations? Well, as you know, China has become not just a one-party state, but almost a one-man state. So it kind of depends on how Xi Jinping, what side of the bed he gets up on in the morning. But if he correctly grasps that Donald Trump is not going to be deterred by this, that he has many other tools in his toolkit to accomplish the same ends, and that the real aim here is a better trade deal with China, not the specific tariffs, I think he's going to play ball. How about your reaction to the dissenting opinions by Justice Thomas and the others? I thought they were correct. In fact, they tracked the argument I've been making at RodMartin.org for the whole last year. This is a foreign policy power of the president. It's clearly within his realm because a tariff is not actually a tax. Libertarian dogma says it's a tax, but there are lots of government fees that are not taxes. It's not a tax if I pay tuition to a state university. It's not a tax if I pay to get a driver's license. It's not a tax if I pay for a passport. These are fees for service, just like when I go to Yosemite or to Yellowstone. You got to pay to get in, but it's voluntary. I don't have to go. That's a fee that is legally distinct from a tax, even if it's ideologically indistinct from one. The Supreme Court seems to have upheld that principle. My guess is this goes forward very much as the president has imagined. I assure you, he has spent the last year with his team figuring out what to do if this ruling came down this way. So you're saying because, obviously, a tariff, nobody's forcing these importers to send their products to America, not like it's a tax. You've got to pay your income tax. You're forced your property tax, right? So you're saying because these importers and exporters are not being forced to send their goods here, they cannot classify that tariff as a tax? Well, they clearly have done, but they don't have to. And again, the president clearly has constitutional and legislative authority to be able to impose a fee for doing business here. And there's nothing in the law that says that it can't be on a percentage of the business they do here. In fact, I would argue that Section 338 more or less says exactly that. The question here is semantic. And the Supreme Court majority chose to go with form over substance. But I think the substance of the plain wording of IEPA allows for the tariffs already imposed, and the president's going to be able to get to a number under these other provisions, like Section 122, Section 301, and Section 338, that give him the exact same effect until we get to the trade deals that make it a matter of treaty, not a matter of Supreme Court cases. Interesting. So you think this is the path that, as Treasury Secretary Scott Bessing called it, Plan B. You think this could be Plan B? I think this is Plan B. I think that's been pretty clear from the start, although the administration has been super cagey about it. They've gone out of their way to say, yes, we have a plan, and, oh, it would be a catastrophe if this ruling comes down wrong. Well, I agree with all of that. I think it's bad law. I think it's a bad decision. I note that half of the majority here are Democrat justices. Shame on Chief Justice Roberts for straining to find a way to make Obamacare constitutional and this not. I mean, that's just absurd. Alito, Kavanaugh, and Thomas are exactly right in their analysis of this. And I don't know if we're ever going get in our lifetime to a Supreme Court majority that says so. My point is that the president has enough tools to do what he needs to do without them. Interesting. How about the president's due to speak, Rod, next five or six minutes. What do you expect him to say? I expect him to say something pretty similar to what I just said, although probably in a little bit more bombastic tone. And I expect that we're going to have an interesting discussion with the congressional leadership now, because the truth is they can completely solve this problem simply by amending IEPA to add one word to a long list of powers granted the president, the word being tariffs. It is a synonym of several of the words that are already in the act. Can we do that before the midterms? Absolutely not. But if the other ruling before the court on the misapplication of the law to create racially gerrymandered congressional districts goes the right way, then I think it's very likely we have a pretty significant majority coming out of November, especially if the economy booms in the way that we believe that it already is beginning to. And the president will have a lot more power to act on this in concert with Congress come January. Given that it's such a cornerstone of the president's agenda, why do you think it would be impossible to do something like this before the midterms? Well, we're down to a one-seat majority in the House. I mean, it's just pathetic. And we definitely have people in the Senate who don't want to play ball because they really don't have to. We're passing things frequently with 51 votes in the Senate, and that's assuming that you don't have a filibuster. So one of the things that we have to contend with, and it pertains to the Save America Act, John Thune has to decide whether or not to enforce a talking filibuster as opposed to these fake filibusters we've been doing in recent years. If you enforce a talking filibuster, we can pass the Save America Act, we can have secure elections, and we could also get to a point where we could amend something like IEPA if you have enough members of the House. But I can't see that piece happening until January. Even with all of President Trump's pressure? Oh, he's good at that, and it's not impossible. But I think it's improbable, and I don't think he's going to need that power immediately. So it may become a non-issue. Interesting. Interesting. It's incredible to see that you brought up the trade deals and how they may not be affected. It's incredible to see Indonesia just signed one this morning. So the timing of these, Rod, has just been incredible. That's Rod Martin. Rod, as always, we appreciate it. Thank you. Great to be here.