Trump's Tariffs on Trial: The U.S. Supreme Court | PETER QUINTER

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Episode Description

Renowned U.S. international trade attorney Peter Quinter speaks on how likely it is that the US Supreme Court will overturn President Trump's tariffs.

Justin Hayden Miller, a global trade lawyer, sits down with Peter to unpack the legal battles surrounding Trump’s controversial trade policies. From whether they are constitutional to Trump's unprecedented use of the International Emergency Economic Powers Act (IEEPA) of 1977, we dive into whether his tariffs will ultimately stand up in U.S. courts, or whether the US State will have to reimburse importers the tariffs already paid.

Key Topics Discussed:

• Trump’s Tariff Strategy: How President Trump’s executive orders since January 20, 2025, have reshaped U.S. trade policy.
• Legal Challenges: Two landmark cases (VOS Selections Inc. vs. United States and Learning Resources Inc. vs. Trump) headed to the U.S. Supreme Court, questioning the president’s authority under IEPA.
• U.S. Constitution and Tariffs: The role of Congress vs. the President in imposing tariffs, and the non-delegation doctrine’s impact on these cases.

Guest Spotlight: Peter Quinter

Peter Quinter, an equity partner at Gunster and chair of its U.S. Customs and International Trade Law Group, brings 35 years of expertise to the conversation. A globally recognized international trade attorney ranked in Chambers USA, offers unparalleled insights into their legal and economic ramifications.

Notable Quotes

• Peter Quinter: “These are the two most extraordinary cases that I’ve ever seen in my 35 years as a U.S. customs and international trade lawyer.” (On the Supreme Court-bound cases)
• Justin Hayden Miller: “Tariffs are somewhat on trial before the American people as well”

Trade Policy 2025

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Chapters

• 0:00 Intro, Trump's Tariffs and Challenges
• 6:00 The US Constitution and Tariffs
• 8:38 Standard methods for Presidents to impose tariffs
• 18:02 International Emergency Economic Powers Act (IEEPA) 1977
• 26:20 Court Cases Challenging Trump's Tariffs
• 36:41 Tariffs on Trial by the The People and the Media
• 37:40 President Nixon

Transcript

Justin Hayden Miller: 0:00

It is a fact that Donald Trump is still dominating the headlines on nearly all international issues, including world trade. And I've done a couple of episodes concerning tariffs, notably in respect of policy and historical perspectives. But Trump's tariffs have seen a number of legal challenges in the US courts, which are likely to hit the headlines again soon, and I wanted to dedicate this episode on whether all these tariffs are going to stand up in court. Because if they don't, it's possible that they might just possibly disappear as quickly as they materialized. And to discuss these issues with me, I invited a renowned US trade attorney and true expert on the matter, Peter Quinter. Here's a taster.

Peter Quinter: 0:45

Both cases are headed to the United States Supreme Court. There's no doubt about that. These are the two most extraordinary cases that I've ever seen in my 35 years as a US Customs and International Trade Lawyer.

Justin Hayden Miller: 0:58

Welcome to Privileged Discussions, offering fresh perspectives on current affairs shaping global trade. I'm Justin Hayden Miller, Global Trade Lawyer and partner at a leading European law firm. Decoding the latest global trends. Peter Quinter, a globally recognized US Customs and International Trade Attorney, brings nearly three decades of expertise to our conversation today. An equity partner at Gunster, one of Florida's premier law firms, Peter chairs the US Customs and International Trade Law Group. Having graduated at Cornell University and studied at the Washington College of Law, he began his career as legal counsel for the US Customs Service in Miami. Peter, you're ranked among the top US international trade lawyers in the Chamber's USA Legal Directory. Peter Quinter, welcome to Privileged Discussions.

Peter Quinter: 1:56

Justin, thank you for hosting me. I'm very pleased to participate, and I look forward to our discussion today to inform your listeners of what really is going on when it comes to international trade in the United States.

Justin Hayden Miller: 2:09

Well, it's great to have you on the podcast, Peter. And you're in Miami. What's the weather like in Miami today?

Peter Quinter: 2:14

Beautiful, sunny, warm, of course, uh, and it's a typical blue sky. That's another summer day in Florida.

Justin Hayden Miller: 2:22

Well, you know, it's there's been a heat wave in Europe uh at the moment, and it's actually been hotter here than it has in Miami, which is quite rare. But I think you're having your own heat wave in the north of the United States as well.

Peter Quinter: 2:33

Yes, yes, we do. Once again, it's it seems to be a constant, not just a summer phenomenon, but I've been in Florida for many years, decades, and it's definitely getting warmer here and less rain.

Justin Hayden Miller: 2:44

Well, indeed. Subject for another episode, perhaps. But I I was thinking of doing this introductory episode on US tariffs, the technical elements on my own, and then I thought, no, I'll get a leading US expert on the case. And and we'd been on stage twice uh together at two international legal and trade conferences, one in the US and another in France. And I really did enjoy doing those presentations with you.

Peter Quinter: 3:10

Likewise. Well, and trade is not just the way to make money for me, but it's my passion. I've traveled the world, 54 countries to date, and I've been a student of international trade law since 1989, when I first joined US Customs.

Justin Hayden Miller: 3:25

Well, it's a coincidence, but I was looking at our statistics for the podcast this morning. We've got people in 54 countries following us. But today we'll be talking about how tariffs are imposed in the US and the legal challenges, notably concerning as well, the challenges made to the US Supreme Court. And this episode is directly in your line, Peter. This is why I've got you on the episode today. We're looking for a deep dive in this particular one. But we want everyone to understand and to keep it interesting. So I suggest that we go down to the deepest depths very gently. Right. So we don't lose anyone. So putting our oxygen tanks on, as it were, I suppose my my first question is how are your clients and industries taking to the trade war and the tariff announcements at present?

Peter Quinter: 4:12

Well, I think you you used the correct terms. There is a trade war. There's no doubt about it. Uh, under President Trump, who became president again on January 20th, 2025, and that day instituted numerous presidential executive orders and changed international trade policies for the United States drastically from the former Biden administration as a way to, I guess, make America great again. Uh whether that's happening or not is uh to be determined, but there is a significant change in policy from the United States as the world has realized.

Justin Hayden Miller: 4:46

There are elements that are are welcomed by U.S. companies or disdained by them? How how how are U.S. companies taking this?

Peter Quinter: 4:53

Well, I so if this gives you a perspective, I've been a lawyer for 35 years, private lawyer for almost 30 years, and this last six months of 2025, since President Trump became president again, has been my by far the busiest for me. Meaning I build more hours, I've had more anxiety because the clients are anxious with the changes in policy and then the rapid reach, you know, constant changes of duty rates in addition to tariffs. It's gone from you know everything from washing machines to dishwashers to steel of all kinds, aluminum products, automobiles, general merchandise, microchips, the seafood. There's a variety of industries that have been directly affected more than others by President Trump. Again, for better or for worse, most companies I represent are not happy at all. Then they're charged more for their imported products with all these new duties. They have to pass that cost on somehow to their customers. So eventually, my prediction is there will be inflation in the next half of this year in the United States.

Justin Hayden Miller: 5:58

Well, before we get on to talking about the US court challenges, and we'll go on to talk about the US Supreme Court and your your views on that particularly interest me. Let's first talk about the basics, as it were, and the U.S. Constitution and what the U.S. Constitution says as to whose responsibility it is to impose tariffs. Can you tell us a little bit about that?

Peter Quinter: 6:21

Yeah, so the Constitution is pretty clear, and the litigation gets into that on behalf of the plaintiffs, which has sued Donald J. Trump in his role as President of the United States. The Constitution of the United States is clear that Congress is the entity, not the executive powers, not the president, to institute and enforce the tariffs that are assessed on imported products in the United States. Congress, not the president. There are some exceptions in emergency situations, which President Trump has used differently than any other president. And that's what's caused the anxiety and the litigation that has resulted, which will eventually end up at the United States Supreme Court.

Justin Hayden Miller: 7:00

You're the expert on this. This is why your views interest me so particularly. As I see it, the starting point is that the US Constitution says that it is Congress that takes the decision. But if I understand correctly, Congress can, in certain circumstances, delegate that power through legislation to the president in certain circumstances. Do you see it that way?

Peter Quinter: 7:22

Yes, and it has in certain circumstances. The courts have looked at this, two major courts, two different litigation matters, and both of them concluded that under the current law, the president does not have the authority to institute the tariffs, that is, as he has done. He's not justified the reason for them as well. And there's no connection between the tariffs that he's instituted and the reasons he stated they were supposed to be in effect, you know, connected to the importation of fentanyl from originally from China that's coming through either Mexico or the United States. There's no connection, even if there was otherwise legitimate use of the imposition of tariffs. The courts' analysis and their decisions have determined that there is no connection positively between the imposition of these tariffs and the potential decrease of importation of fentanyl from Mexico or China or Canada.

Justin Hayden Miller: 8:20

Well, I've got the US Constitution in front of me. So Article 1, Section 8 essentially grants Congress the power to lay and collect taxes, duties and excises, etc., which which includes tariffs within that definition, I understand. So I see the president as having a number of tools ordinarily in respect of tariffs, standard legislation and procedures that presidents over the decades have used in order to implement tariffs, a suitcase, as it were, or briefcase of standard instruments that they can use in those circumstances. Can you tell us about a few of these standard tools?

Peter Quinter: 9:03

Well, let's just go historically. So customs was the as part of the United States Treasury Department when the United States was first created in 1789, was the main source of revenue for the federal government, way before there was a federal income tax that came in much, much later. So customs duties as the primary resource for the federal government, there was a lot of attention on that. And of course, and there was no difficulty between the president and Congress until much, much later, until the 20th century. So there were some laws that were passed in the 20th century, post-World War II, that gave the president greater authority to adjust or to impose customs duties in certain limited, very limited circumstances. And the question really for the courts is whether those circumstances existed and whether he President Trump satisfied the requirements to impose what he did. So both the two courts, both the United States Court of International Trade, which is what's called the Customs Court, and the United States District Court for the District of Columbia, have both analyzed the laws and determined, based on the history of those laws and their intention, that President Trump did not satisfy the requirements. And both courts have declared the imposition of those tariffs since he became president. The tariffs he's imposed, almost all of them have lacked uh legal sufficiency.

Justin Hayden Miller: 10:32

In terms of the tools that I've mentioned, I see section 232 of the Trade Expansion Act of 1962, which concerns national security grounds. So in the case where the president considers there are national security grounds in order to impose tariffs, there's a procedure in order for him to do so. Right. And also the section 301 of the Trade Act 1974, which concerns unfair trade practices. So in the case that the president considers as an unfair trade practice, equally there is the possibility for him to apply a particular procedure to impose tariffs. Can you talk about each of those?

Peter Quinter: 11:10

Yes, and then you you summarize them perfectly. So first the Trade Expansion Act of 1962. First, there has to be an investigation by the United States Department of Commerce, which issues a report concluding that there is a threat to national security. And once that is done, the president can issue, create a new tariff, impose customs duties on countries or products or both. And President Trump is not the first one to do this. The other presidents in the last 50 years have imposed tariffs under the Trade Expansion Act of 1962, what we call Section 232. So steel and aluminum tariffs, for example, are examples where he has imposed extraordinary tariffs on foreign steel and aluminum coming to the United States. The other act you mentioned was the Trade Act of 1974. In that case, the United States Trade Representative's Office has to determine that there was an Act, policy, or practice of a foreign country which is unjustifiable and restricts U.S. commerce. In that case, when there's an unfair trade practice, the president will have the authority, after public notice and comment, to impose new tariffs with duties on imported products. Neither of those are done by presidential executive order, which is the way President Trump has done it without notice and comment.

Justin Hayden Miller: 12:29

Aaron Powell And on Section 232, the one relating to the national security grounds, you know, Trump has actually imposed those tariffs since his presidency, but I understand those particular tariffs are not necessarily put into question at the moment.

Peter Quinter: 12:49

That's right. So, and then and as I said, other presidents have used the threat of national security to impose such tariffs.

Justin Hayden Miller: 12:58

And the Section 301, the Trade Act, 1974, unfair trade practices. Trump has been using that particular act in order to impose tariffs on China, essentially. Yeah?

Peter Quinter: 13:10

Yes, he has. And he used it in his first term term as president years ago against China, which was continued, by the way, by President Biden during his four years uh in office. So, and the there was a challenge legally against this Section 301 by various companies, and they all failed. And determined the courts ended up determining that President Trump did have the authority under Section 301 to impose the tariffs against China.

Justin Hayden Miller: 13:36

But it's not possible for the President just using these acts to say, okay, I'm gonna impose tariffs. There's a specific procedure which which involves time and analysis in order to actually apply before the tariffs can be imposed.

Peter Quinter: 13:49

That's correct. So there is a procedure, as I said, for 301, the United States Trep United States Trade Representative's office has to make a report after an investigation that concludes there's some sort of a you know unfair trade practice, and then that gives the president the authority to impose some action against whatever the threat is, the perceived threat.

Justin Hayden Miller: 14:13

Well, thank you for those explanations. So that that's extremely interesting, Peter. Are there any other tools that the president can use?

Peter Quinter: 14:22

The one that this president has used has never been used before. That's what we call AIPA, the International Emergency Economic Powers Act of 1977. That's the tool that he has used, he's cited for the imposition of these extraordinary tariffs against products, against countries, all countries in the world, and imposed at least a 10% extra duty on all products coming into the United States from around the world. No other president in the history since this law was created in 1977 has used IEPA as President Trump has now done.

Justin Hayden Miller: 14:53

And we'll certainly be coming on to discuss that because that's the most interesting element that you're going to be advising us on, Peter. We'll discuss soon President Trump's novel method of imposing tariffs using AIPA, which is why there are so many legal challenges, I understand, at present.

Peter Quinter: 15:10

Well, President Reagan was my when I was allowed to vote, he was my he got my vote twice. So he's my hero.

Justin Hayden Miller: 15:18

Yeah, he's a certainly in in in in in Europe, he's a he's a very, very well known and often revered president.

Peter Quinter: 15:26

It's still very popular. The president should have some authority when there's really an emergency to impose tariffs and therefore customs duties on countries or certain products for a certain period of time without consultation with Congress.

Justin Hayden Miller: 15:42

And I see a parallel with President Trump and the issue of whether litigation is seeking to restrict his options. And sometimes for a short while it works, but only for a short time.

Peter Quinter: 15:56

That's true. You know, I'm generally, I've been in this business for 35 years. Whether it's sanctions, economic sanctions or tariffs, uh only short time, short practices or imposition of such things really work. Over the long time, long term, they don't, they don't ever work. You know, uh imposing additional customs duties on imported products, whether it's steel, aluminum, automobiles, is not going to make a difference. We're not going to somehow immediately make new steel factories or aluminum factories in the United States or make new cars in the United States. It doesn't happen. It needs to be more than just in a position of adding the cost of foreign products coming to the United States.

Justin Hayden Miller: 16:38

But certainly, president, such as President Reagan, who is quintessentially known to be a free trade president, was prepared to impose tariffs when he considered it was necessary in order to protect the American economy, or when he considered that other countries were taking advantage. Now, in in the present day, with the opening up of world trade, do you accept that there's an argument there for that President Trump, in a similar manner, is attempting to protect American jobs and to fight unfair trade practices with the tariffs that he's imposing?

Peter Quinter: 17:14

No, I actually don't accept that. I don't think that's that's what he's going to do, and I don't think that's what is happening at all. Uh the stated reasons for the tariffs are two kinds. One is, as I said earlier, the fentanyl, the illegal drugs that are entering the United States, which is not new. You know, narcotics have been coming to the United States in the beginning of time. We're not going to somehow make more steel in the United States, or more linum in the United States, or more automobiles in the United States, just because the imposition of these extra duties, which are really taxes, which just that by itself is not going to happen. We need investment into those industries in the United States, either private or public investment, separate from the customs duties. And I don't see enough of that occurring uh yet.

Justin Hayden Miller: 18:04

You mentioned the International Emergency Economic Powers Act, uh, IEPA 1977. And previously we were talking about the standard tools, and you mentioned this particular act, indicating that it's the first time that a president's actually used this particular act. Can you explain to us how the act has imposed tariffs in this particular case and the legitimacy of that?

Peter Quinter: 18:28

I can, but I want to address something related to this. Typically, when a president feels that a product, there's an unfair trade practice by some country sending some products to the United States, then there's an investigation by the U.S. Department of Commerce, which then concludes that there's dumping of that product to the United States. It could be steel, aluminum, tomatoes, garlic, anything. And then we have an anti-dumping duty order issued by the government, which counteracts the advantage of the foreign producer in order to protect the domestic industry. We have both anti-dumping duties and countervailing duties, and those have multiplied. We are probably 10 times more orders of anti-dumping and countervailing duty orders today than we had 10 or 15 years ago, because we are trying to protect the U.S. economy, the domestic producers versus the foreign producers. I don't know if that's going to be successful in the long term. I don't think so, but that is the attempt. And we're not the only country who does it. Every other country in the world uh does the same thing to protect their economy. Every country does that kind of thing. So that's what a typical president does, but under AIPA, it's never been used to impose these tariffs upon uh imported products in the United States. And this is what makes President Trump unique in this situation.

Justin Hayden Miller: 19:47

If I understand correctly what you're saying, Peter, is you're saying that those tools that we've previously been discussing, Section 232, etc., have an investigative element within them, where a particular department that actually analyzes whether there are unfair trade practices or whatever, which are then presented to the president, and the president decides on the basis of that report or whatever, that investigation, whether tariffs should be imposed. And are you saying that the AIPA Act is potentially a means to circumvent that procedure?

Peter Quinter: 20:26

Yes. The way it's been going since January 20th, the day, the very day the president uh became president again, uh he issued these what we call trafficking tariffs, meaning illegal narcotics trafficking. That's the fentanyl for the most part, against uh China. Right there on January 20th. The first thing he did as president of the United States. He's been thinking about this for a while. And that started the trade war uh against China and then expanded to the rest of the world. And what we called, well, he called it Liberation Day tariffs. And it's what we call reciprocal tariffs. So it's uh it's an interesting phenomenon that has occurred. And right now, the you know, now we're here in June. I uh there's still no master plan that I can see of a strategy that improves the position of the United States versus our our counter our trading partners around the world.

Justin Hayden Miller: 21:20

So he he's taken the International Emergency Economic Powers Act, IEPA, 1977. And President Trump has declared an emergency in respect of um Well, let's start with the first two, Justin.

Peter Quinter: 21:35

On January 20th, he declared through presidential executive order, he issued a proclamation declaring a national emergency on the southern border of the United States regarding the importation of fentanyl coming in through Mexico. Now, fentanyl has been coming in through Mexico for decades, and yes, it's illegal, but is it a national emergency? I don't know. Two days later, in February 1st, 2025, or a few days later, February 1st, 2025, issues another executive order imposing duties to address the flow of illicit drugs across our northern border, that's Canada. And the way it works, the White House from President Trump informs the Department of Homeland Security. Within the Department of Homeland Security is U.S. Customs and Border Protection, or CBP. CBP then issues its own message to the trade community that says from now on, effective whatever date the president said, instead of zero duty, now there's 10% duty and uh or 20% or 100%. And that's how it works. No congressional involvement whatsoever.

Justin Hayden Miller: 22:34

But there have been lots of deaths because of fentanyl. In Europe, we're watching the television. Uh, you know, people are almost static in the street. They look like you know zombies walking around the uh sometimes the southern dates of the United States. It's it's a pretty catastrophic s set of circumstances, don't you agree?

Peter Quinter: 22:51

Something that we do not want in the United States. And it certainly is crossing from Mexico into the United States, and it's there's no doubt that the fentanyl for the most part is being made in China. So then the question is, okay, is it an emergency, a national emergency, and is the imposition of these tariffs somehow stopping the fentanyl from coming to the United States? The reports that have been issued since January 20th say no, there's no change in the amount of fentanyl coming to the United States.

Justin Hayden Miller: 23:18

I see that there are a number of challenges to this in the U.S. courts.

Peter Quinter: 23:22

There certainly are. Came out with, you know, every country in the world, and some countries had 10%, some 20%, 30%, 100%, 200%, created a very interesting list. In the end, it ended up being all just 10%. But that April 2nd uh is a day that we all remember because it went up to 145% against China, which means you no longer it made no sense to buy anything from China. And if, for example, I'm here near the port of Miami, I can look out my window. Um, within a month, there was not one ship that it was docked at the port of Miami, Florida. Because, you know, trade believe it or not, even though we're halfway around the world, the number one trading partner for cargo coming into the port of Miami is China. And I saw the same thing out in Los Angeles and Long Beach, California. It was it was devastating for trade and for United States companies. On April 9th, decided, you know, was he put a 90-day hold on or stay on those reciprocal tariffs for the most part.

Justin Hayden Miller: 24:23

And the risk of fees on the docking of Chinese ships as well.

Peter Quinter: 24:26

Well, that's another executive order that he issued, separate from the tariffs. Right. That's another uh it's still being litigated, but uh most likely that will go into effect sometime in October.

Justin Hayden Miller: 24:36

Incidentally, Peter, the AIPA Act was actually implemented on the 28th of October 1977. A famous day. Do you know why?

Peter Quinter: 24:48

I do not know why.

Justin Hayden Miller: 24:50

Well, did you know that it was the day that the Sex Pistols released their only studio album, Nevermind the Bollocks? Without being too flippant, that that's an album which is very much anti-establishment, you know, against the grain. We will see what the courts say, and you you'll go on to explain this, whether using AIPA is an extremely intelligent way of imposing tariffs or whether it's potentially going to fall down because of the courts. Because it's not because a president's not used something for 50 years or ever that potentially the US courts might not consider that it's it's legitimate. That's true. On the April 2, 2025 declared national emergency, that also included large and persistent annual US goods trade deficits. Do you do you accept that that could be a potential emergency for the United States?

Peter Quinter: 25:45

You summarize it correctly. Under AIPA, President Trump's argument is that these annual international trade deficits, meaning we are buying more products from other countries than they're buying from us, so we have a trade deficit. He considers that a threat to the national security of the United States. That's his justification for all these reciprocal tariffs against every other country in the world.

Justin Hayden Miller: 26:07

Which is expiring on the 9th of July, yeah?

Peter Quinter: 26:10

9th of July. They go right back up to the whether it's 10% or 200%, uh, he says. I find it hard to believe that that will really happen, but time will tell.

Justin Hayden Miller: 26:21

Well, tell us about these legal uh legal challenges and tell us what what your own opinion is on all this.

Peter Quinter: 26:26

Yeah. Well, I think the my own opinion is uh the status of both of them is that they are at the U.S. Court of Appeals for this federal circuit in Washington, D.C. That's the court right below the United States Supreme Court. They both will hear oral argument and written submissions, they both will issue their opinions, and then win or lose, the losing side is going to appeal to the United States Supreme Court. And the basic question is: did President Trump have the authority under EPA to impose these tariffs? Yes or no. The Supreme Court, as you know, many of them were appointed by President Trump during his first term. And they have, for the most part, been lenient toward his policies to date. But you never know. So I'm actually very interested to see what happens at the Supreme Court. I think they will decide the case, not on a procedural matter. I think they will subsequently decide it on the merits. And most likely it'll be sometime at the end of this year, you know, December 2025, early 2026. And the extraordinary thing is if the Supreme Court determines that these reciprocal or other tariffs were illegal, then there's a massive refund by the U.S. government to all of the importers have been negatively affected by paying all these extra duties. So that will be a large process. And it's not uh unprecedented. Uh many years ago, we had the harbor maintenance tax, which went to the United States Supreme Court, determined those taxes were uh illegal, and there was a massive hundreds of millions of dollars of money was refunded. This is going to be billions of dollars that may be refunded. So we'll see if we get that far. I'm very curious as a lawyer to see the machinations that will occur at the U.S. Supreme Court. But we can get into both of the cases. The first one, there was a decision on May 28, 2025. The case is VOS Selections Inc. versus the United States of America, U.S. Customs and Border Protection, and some other departments of the U.S. government. And the case really went before the U.S. Court of International Trade, which I said before was the Customs Court, the court that has exclusive jurisdiction over tariffs and import matters generally. And they determined that under IEPA, the President Trump did not have the authority to impose the tariffs, that it was exclusively within the jurisdiction of Congress. And that case was then appealed to the U.S. Court of Appeals for the Federal Circuit by the Trump administration. And there is a July 31st oral argument scheduled before the full court U.S. Court of Appeals. There was a motion for Certiari to move the case immediately to the United States Supreme Court, but just last week, the Supreme Court said no, they don't want to rush it. They want the appellate court to look at it and issue their decision. And then if there's an appeal to the U.S. Supreme Court, they'll deal with it then. So that's the step.

Justin Hayden Miller: 29:23

The word tariff is not actually used in IEPA. And during the arguments before the court for saying that the president can't use AIPA because AIPA does not expressly state tariffs as a as a cause to actually use to use the act.

Peter Quinter: 29:38

That's actually that's essentially correct. That's exactly right. So they the court determined that the unusual and extraordinary this is a quote from the statute. Now, President Trump has declared his own national emergency with this fentanyl or the opioids. uh or this trade deficit. No one of the presidents declared that before. And the Congress has never determined this to be a national emergency.

Justin Hayden Miller: 30:09

Is it the courts that d determine what is a national emergency or is it the president? Who who's who's whose shoulders does this rest on?

Peter Quinter: 30:18

Yeah, the court would not make that determination. The in the end, it's still going to be the president of the United States who determines that there is a national emergency. But there has to be a justification. You can't just make up some reason for a national emergency. So the courts will determine whether or not there was a reasonable explanation for this alleged national emergency.

Justin Hayden Miller: 30:37

Interesting.

unknown: 30:38

Yeah.

Peter Quinter: 30:39

It is so what the courts really looked at was Congress is not permitted to transfer its legislative functions to the president of the United States. It's what they call the non-delegation doctrine. The United States Court of International Trade judges determined that because of the non-delegation doctrine only the Congress can determine that tariffs may be imposed under that law. And Congress never made any effort to impose such such tariffs. It was only the president that did it.

Justin Hayden Miller: 31:07

And do you think do you think that argumentation is going to succeed?

Peter Quinter: 31:11

You know I that part I do. I do think that will succeed at the Supreme Court. So you know the imbalance of trade is that an emergency the Court of international trade determined it was not an emergency. So we'll see I I think that argument actually will prevail if it goes to the United States Supreme Court. This non-delegation of authority very interesting Peter.

Justin Hayden Miller: 31:35

So that's the the first case you mentioned another case as well I did.

Peter Quinter: 31:39

So but before I go on in this case President Trump's you know attorney general argued to the court that it's a political question of whether or not it's you know an emergency and only the president can discern political questions. The court should not be involved in political questions. And the court ignored that and said no we are the United States Court of International Trade. We interpret the laws regarding imposition of tariffs and duties. It is just judicially reviewable. So that was interesting. So that's one case that's pending the other case is just as significant. It was a case filed in the United States District Court for the District of Columbia way back in April 225. The name of the case is Learning Resources Inc. and Hand to Mind Inc. versus Donald J. Trump, President of the United States in his official capacity along with Christy Nome, Secretary of the Department of Homeland Security, along with the Secretary Commissioner of Customs and other federal agencies. Basically these were toy companies that were importing toys made in China you know for the the holiday season in December and they were saying if they had to pay these extraordinary tariffs that Trump has imposed they would have to pass their costs on to their customers and they would probably end up going out of business. And that wasn't you know what they call irreparable injury. So that got the court interested and the U.S. District court for the District of Columbia issued a decision in favor of the plaintiffs these toy importers when they determined that President Trump had improperly invoked AIPA to impose these sweeping tariffs on imports from not just China but from other countries. So obviously President Trump through the Attorney General appealed that to the U.S. Court of appeals for the Federal Circuit right away and that appellate court issued its own stay saying no the lower court stay is moot. The duties and tariffs may continue until we, the appellate court, the U.S. Court of appeals for the federal circuit have our hearing on July 31st and then we issue and by the way that'll be on bank meaning all of the judges of that court will participate. And then they will issue their decision sometime probably a few months after so if it's July 31st we're talking August September probably before we'll get a decision from the U.S. Court of appeals in this learning resources case. Supreme Court also said they're not interested in hearing it this time they want the appellate court process to be completed before it it gets involved.

Justin Hayden Miller: 34:06

Well it it it gives them time to think this over doesn't it I'm sure they'll be thinking this over during the during the summer holidays that they know it's going to arrive on their desk at some point.

Peter Quinter: 34:15

Absolutely I mean the cases head both cases are headed to the United States Supreme Court. There's no doubt about that. These are the two most extraordinary cases that I've ever seen in my 35 years as a U.S. customs and international trade lawyer and it affects not just trade lawyers and importers and exporters but the average American citizen who goes to the supermarket or goes to a department store and buys products and whether the products from a foreign country are even going to be available for sale in the in the United States.

Justin Hayden Miller: 34:42

Well let's be honest Peter this is an internal US affair. The reason why I have you on on on the podcast at the same time you say it affects all US citizens but it goes beyond that it actually affects probably almost everyone in the whole world. It actually does well suppose the petitioners win let's just suppose the Supreme Court determines that the tariffs are not legitimate. It's going to be very very difficult to unwind all those transactions all those imports over a back potentially a year or so and to reimburse everybody how can how can companies and individuals protect themselves?

Peter Quinter: 35:23

Well there's a couple of different things uh some law firms have stated that importers should always file what they call protests with U.S. Customs for for all of their entries which are subject to these extraordinary AIPA tariffs. I have not provided that advice from the history of refunds previously U.S. Customs has all the information in their databases they know who paid taxes for or customs duties for which entries under AIPA and it's not that difficult to process to uh refund all that you know the U.S. government under Trump in the past six months has actually collected a record amount of customs duties because of these extra tariffs that have been imposed so there's plenty of money to refund if that's the way this works out. And whether or not there'll be interests I don't know those refunds could refund companies but in practice it's not going to be refunded to individuals No no the actual consumer no the so customs duties are paid by US importers and the refunds will be made by two US importers for the most part that's not individuals it's companies.

Justin Hayden Miller: 36:27

Very interesting the aim of the podcast as well is to allow listeners to be able to understand the issues it's complicated stuff and it it's necessary to to understand the intricacies of it to to properly follow it. The title of this podcast is Trump's Tariffs on trial and on first glance that concerns legal aspect concerning the legitimacy of US tariffs in in US courts that we've been discussing. But there is another aspect and that is how the American people judge the effectiveness of the tariff measures. And to an extent therefore tariffs are somewhat on trial before the American people as well politically or whatever. And and the mainstream media undoubtedly has a part to play in this no I don't think the media's just no I don't think the media I mean he for the you know that's pretty even now there's no anti-Trump media alone. Essentially this is being played out not just in the courts is it it's also being played out on X, it's also on on social media, not just in the US but throughout the whole world. Well these are very interesting times. Coming back to to Nixon, I think it can be argued that Nixon's trade and tariff policies are perhaps closer to President Trump's than one might think in in certain respects because it can be argued that Nixon saw free trade as desirable but subordinate to national interests and his his his his trade policy orchestrator Treasury Secretary John Connolly defended import charges quote to protect the American economy. And and also in his memoir he described Nixon's trade and economic policies as driven by the need to restore America's competitive edge. And this seems to be very much the language of President Trump in my opinion.

Peter Quinter: 38:30

As an expert in terrorists people come to me all the time and ask me for my opinion including clients so and what I predict and what I think will happen and how do we prepare for those instances. So it's really become very common to discuss Trump's policies for international trade and international transportation that affects all of us because as people for the first time are realizing the products they use the very pen that I'm holding the computer that I'm looking at the car they're driving and the food they eat much of it is from overseas. And they didn't I don't think people realize that as much as they do now. And we are one beautiful world I'm a free trade person. I believe in international trade I believe it creates peace and understanding between peoples and countries and it benefits us. Yes some countries are going to have a trade deficit and some are not but that changes over time. And I don't think the imposition of these unilateral duties by President Trump in the short term or long term are going to benefit the United States. I think it adds to chaos and anxiety and that's what I hear from the CEOs and other executives at the companies that I represent for the most part very few companies have come out and said somehow these tariffs are benefiting them. So we'll see in the end, you know when President Trump's uh four years are over whether this was a successful policy or not.

Justin Hayden Miller: 39:53

Well you you you said it the the jury it's still out and certainly historians will be analysing this I think my great grandchildren will be analysing this for a long long time to an economist will be analysing this for a long long time to come. Perhaps you know in a in a year or so we'll have another discussion just to replay this and see how it played out that would be an interesting exercise. Well Peter thank you very much for your time it's been a a great discussion you've added so much value to the issues I hope our listeners understand the intricacies a lot better thanks to the explanations that you've provided. I certainly hope that we're going to be up on stage yet again at another international conference. I'm looking forward to that. Peter Quinter, thank you very much. My pleasure Justin thank you if you're listening to this then thank you for having listened to the podcast from beginning to end. The content of this podcast is intended only to provide an information resource of interest and does not constitute legal, tax, business or financial advice of any kind. Should you require advice then you should engage an appropriately qualified person to provide you specific advisory services in the field. The views, thoughts and opinions expressed in this podcast are my own and do not necessarily represent the views, thoughts or opinions of any law firm nor that of any third party, other person, company or organization stay tuned for the next episode