Um, what do you think is the biggest or one of the biggest ways, the one that comes to mind, for how the Constitution right now is not working the way it's supposed to, not working the way the founders intended, but we've just strayed totally off the reservation as a country in that sense?

Yeah.

So I would mention two.

One, we've already talked about is sort of the sheer scope of federal law.

Much of the federal law that we have now, uh, is simply unconstitutional under the original scope, uh, of const- of, of federal authority as understood certainly at the time of the founding, and then later at the time of the Reconstruction Amendments.

For example, uh, at the m- most federal regulation is under the so-called Interstate Commerce Clause, and the idea under current, under modern precedent is that that includes any so-called economic activity that, quote unquote, "substantially affects interstate commerce," which to make a long story short can be almost everything that we do, down to, you know, a case called Gonzales versus Raich, where the Supreme Court said that the possession of medical marijuana in one state that was never sold even in that state and never crossed state lines at all, but it's part of Congress's power to regulate interstate commerce.

If we pare that back, uh, and pare back spending powers similarly in the like, we would have many fewer problems of various sorts, both with our legal system and our society generally.

Sure

What is more likely to get Trump to stop with the tariffs? Is it legal action, which can take forever, or is it changing American attitudes?

I think some of both would be desirable, but I think in the short run, legal action is faster because, yes, it takes some time, but usually you can get a decision in a few months.

Americans, most of us already hate these tariffs, but it is very difficult to right now change them through political action, because even if Congress were to pass a new law repealing them, Trump could veto it, and then to override a veto under our Constitution requires a two-thirds majority in both houses of Congress.

However, as I note in my Montreal Economics Institute paper that you referenced, Trump won't be in office forever.

He has probably two years left, and a lot of that is a lame duck period.

And when we have a new president and a new political situation, I am hopeful we can pass legislation and negotiate a new agreement with Canada, which will make these sorts of abuses much more difficult or hopefully even impossible to repeat.

What happens to money collected if the tariff that was used to collect that money is declared illegal?

That's a great question.

What are you talking about?

It's not immigration that's a form of socialism.

It's government-imposed restrictions on immigration.

They restrict where people are allowed to live and work, which is a massive form of government control over the economy, maybe the single biggest that we have in the United States today.

In general, what's good for the economy and good for human development in general is that people can live and work in the places where they can be most productive, which for many immigrants, including people like my parents and myself back in the day, For many of them, it is living in freer, more productive societies.

That obviously increases the income of the immigrants, but it also benefits other people as well because when immigrants can be more productive, that increases innovation, that increases production, and there's a lot of evidence that immigrants actually disproportionately contribute to those things.

They start businesses at higher rates than natives.

That's not socialism.

Putin,

though not by as large a margin as Democrats and independents.

But there is definitely a contingent on the so-called nationalist and post-liberal right.

Like Tucker Carlson, for example, and like some people in the Trump administration who definitely have sympathies for Putin for various reasons.

Putin is nationalistic.

Putin cracks down on LGBT people and so on.

These reasons for sympathy are terrible.

And do you have any hope yourself for any kind of fracture within the right, maybe a possible like a splitting within the Republican Party of the Republican Party? I know you're not necessarily a Republican yourself, but I think that you've got more of a finger on the pulse than I do.

But what's asset forfeiture? And why did law enforcement decide to leave Tyson without his wheels over a drug offense?

Asset forfeiture is a practice whereby government can confiscate property that was used in a crime, such as a car, or in some cases, even something as major as a house, and often they can do it even if the owner of the property was never convicted of any crime, and indeed, even if he or she was never charged for it.

So you get examples like the police will stop someone's car, perhaps for a minor traffic violation, then they'll ask to search the car, and then they find some money in the car.

Say you're transporting cash, as some people do.

The police might decide it seems likely that this money was acquired in a drug transaction or some kind of other illegal transaction.

They take the car potentially, and the money as well.

Similarly, if, for instance, you lent your car to a friend, and then the friend was suspected of driving it to buy illegal drugs, then your car could be confiscated, even though you may not even have known that your friend was gonna use it for that purpose.

And thus began a game of pinball for Tyson Timbs and the Institute for Justice between court systems.

And if you could address the stateless person idea of Richard, that would be helpful.

So the complete jurisdiction argument is not actually original to Richard.

It was, I think, first developed by John Eastman, later becoming notorious for his efforts to overturn the 2020 election.

And the complete jurisdiction argument has two major problems.

One is it's not supported by any of the original meaning evidence.

The other is if this approach had been adopted, it would have excluded not only slaves, but also many free blacks.

Because the theory of complete jurisdiction is that The only people subject to a jurisdiction are those who are subject to all the same rights and obligations as U.S. citizens are.

And they start using morals and

But through a complex series of events, ended up helping litigate it together with the Liberty Justice Center, a public interest law firm, who invited me to join the case, and then together with, uh, other people as well, we won in the lower courts and eventually it got to the Supreme Court.

Court.Uh, which also decided, uh, in our favor.

Uh, so, uh, our case was actually the VOS Selections case, which went into lower courts, but it was combined with the Learning Resources c-case for procedural reasons.

As a technical matter, our case was actually the one that won because theirs got dismissed for procedural reasons.

They went to the wrong court, but given the naming conventions, they got to have their name on the case, and our clients, uh, lost out on that aspect of it.

But what's more important than that is the issues in the case.

Uh, and six justices in the majority, the three liberal justices and three conservative, Chief Justice Roberts, Justice Barrett, and Justice Gorsuch, uh, they agreed on the simple notion, uh, that this statute, uh, which, uh, uh, uh, had never been used to impose tariffs before and doesn't mention the word, it just doesn't authorize tariffs at all.

And Ilya, thoughts about Slaughter and, and Cook?

I guess what would you say to that thesis?

I think a lot here depends on what counts as the conservative legal movement.

Obviously, it's no secret that over the last decade, there have been major transformations in American conservatism, moving away from free markets, the Republican Party becoming more of a European style, big government nationalist, nativist party.

So in this Supreme Court term, The Republican Party and the broader conservative movement as they are right now suffered some significant defeats in cases like the tariff case, the birthright citizenship case, you know, in the National Guard case and some others.

On the other hand, you could try to make an argument that most, if not all of the significant decisions The Supreme Court issued this term are in accordance with what you might call the preferences of sort of pre-Trump legal conservatives, obviously the unitary executive, how a decision, the, you know, some of the others that you mentioned, the trans athletes cases.

But also, if you want to view it that way, the tariff case might be seen as also fitting the preferences of that pre-Trump type of conservative, some of whom actually worked with us on the case, like Michael McConnell.

Those people obviously tend to be sympathetic to free trade and also don't like broad delegations to the president.

era I've seen a very strong reaction online and I know that's not always the barometer of you know where the country is but in reaction to yesterday's ruling from in the birthright citizenship case you know in the same way that perhaps this Supreme Court and in this conservative majority of Supreme Court justices were kind of groomed in the Reagan Justice Department era and the you know following in the mold of you know the late Justice Anson and Scalia originalism textualism Could we see potentially like a future generation of conservative justices on the Supreme Court that really do adhere to some of those kind of the more MAGA views of constitutional law? And I wonder, you know, when it comes to a decision like the birthright citizenship case, how settled that really is if the constitutional holding at least is really just a five to four split decision.

So do you want to take it from there, Ilya, and comment on it a bit?

Sure.

Thank you, Debbie, for that great overview, both of the Tyler litigation and of the present case.

I'm going to give a few thoughts on the case and its outcome so far.

I fear the bottom line is this is the worst Supreme Court takings clause decision in some time.

Even though technically you can argue technically the property owner won because the lower court decision against them was vacated and remanded.

But in terms of the actual doctrine that is set down here, I think it's pretty bad.

And so at least on the legislative end, we can work on bringing those two closer together, you know, trying to take a slightly more optimistic view of this.

Ilya, what was the strategy behind this case? What did it take to put this together and then get it in front of the Supreme Court and decided in what seems like such a rapid pace?

Yeah.

So I guess it takes several things, but perhaps unusually, this case actually started with a blog post.

I regularly write blog posts for the Voa Conspiracy Juan Politics blog, hosted at the Reason website for free, even so you can access it without paying anybody anything, including me.

And I write blog posts about a lot of legal and political issues, uh, within my areas of expertise.

Uh, in February of last year, Trump announced that he was going to be using the International Emergency Economic Powers Act of nineteen seventy-seven to impose twenty-five percent tariffs on imports from Canada and Mexico and ten percent against China, ostensibly for the purpose of combating fentanyl.

I saw this.

But can you steel man their side for us? Like, what's the best case or the case that they were offering for why it was more than just because I wanna?

So what was the argument today, and what did the Supremes rule?

Yeah.

So what you just said as the simple summary of it was actually pretty close to the truth.

Uh, that what the 14th Amendment says in the Citizenship Clause is that anyone born in the United States on U.S. territory is a U.S. citizen, so long as they're, quote, "subject to the jurisdiction of the United States." And the Supreme Court basically said that that means more or less what you think it means, that so long as you're born in the United States and you're subject to U.S.

law, that is, if you commit a crime, you can be prosecuted for it.

If you commit some kind of civil offense, you can be sued and so on, uh, that then your ch- uh, that then your children, if born in the United States, uh, are, uh, U.S. citizens.

Uh, now, there are rare exceptions where people are born in the United States, but they're not subject to U.S. law, such as, for example, children of diplomats who have diplomatic immunity, but those are rare, unusual cases.

Oh

But on some of the other issues, it's a lot more difficult.

So I would say that the other three issues that I mentioned at the start have this same similarity.

Immigration helps poor people, lowers prices and increases economic growth.

And many people on the left are sympathetic to immigrants for, uh, sort of social justice reasons as well.

Uh, um, the issue of nuclear power, it's a cleaner form of energy.

It lowers prices, uh, and so forth.

And therefore, it has many of those same features.

But wouldn't a political alliance of some form be an implicit endorsement of tons of programs that we then oppose?

But on some of the other issues, it's a lot more difficult.

So I would say that the other three issues that I mentioned at the start have this same similarity.

Immigration helps poor people lowers prices and increases economic growth.

And many people on the left are sympathetic to immigrants for, uh, sort of social justice reasons as well.

Uh, um, the issue of nuclear power, it's a cleaner form of energy.

It lowers prices, uh, and so forth.

Uh, and therefore, you know, it has many of those, uh, same features.

But wouldn't a political alliance of some form be an implicit endorsement of tons of programs that we then oppose?

Um, want to get a sense from you, how might that refund process unfold, and could Congress step in to help address the fallout?

So I have written on this, albeit less than on some other aspects of it.

I'm actually not on the case anymore because for this refund phase, I don't have the same kind of expertise as I do on separation of powers issues and emergency powers and the like.

Uh, but the bottom line is this: uh, U.S. importers, including my now former clients, have paid something like a hundred and seventy-five billion dollars in what the court has now declared are illegal IEPA tariffs, and during the course of this litigation, the government repeatedly said that, uh, there should be a stay on the injunctions that we won in the trial court because they say: "You don't need to worry.

Uh, you can stay the injunction because e- we will keep collecting the tariffs, but if we, the government, end up losing, uh, then we will most assuredly pay refunds and with interest." And now they're sort of backtracking on that.

Uh, and I think it is just obvious, and you don't have to be like a, you know, a tariff expert to recognize this, that if the government has collected billions of dollars in people's money illegally, then they're required to give it back, and they're required to pay interest, and that's what they're, uh, gonna have to do.

Uh, there is now, uh, actions in the Court of International Trade, which is the trial court here, uh, to seek the refund of the tariffs, both on the part of, uh, my former co-counsel, Neal Katyal, and the Liberty Justice Center, who filed, uh, uh, motions to this effect just a, a day or two ago, uh, in the Court of International Trade, uh, and also I think numerous other importers, uh, have also filed similar, uh, claims.

Does the court's insistence in the majority on explicitly clear limited delegations put statutes like Section 122 at risk of future challenges?

But I kind of get the sense from you that you think perhaps, uh, Trump doesn't even have to come to that line?

So he's already committed a whole bunch of actions that justify impeachment, such as murdering over 100 people in the Caribbean with zero legal justification, uh, and there's a whole range of other actions in his second term that are also illegal abuses of power.

I totally understand that the two-thirds majority you need to convict, uh, is extraordinarily difficult to get.

Uh, however, I think some of his actions which justify impeachment, such as his massive tariff power grab, imposing illegal tariffs on much of the world, and damaging the American economy, might also resonate with the American people, whose number one concern, according to polls, is affordability.

If you can tie in affordability to his illegal actions, uh, you can generate more political support for impeachment.

And even if, you know, ultimately he gets acquitted, uh, highlighting these abuses of power, the way it harms the American people, can damage the administration politically, and therefore reduce their ability to do harm, at least at the margin.

So would you argue that even Trump's threats to invade Greenland, even if he never actually starts a kinetic action, as people have been talking about, that the threats themselves amount to a high crime and misdemeanor, and if so, why?

Yes, because, uh, what he has threatened to do is illegal under both US and international law.

Ilya, let me start with you and just the, the argument that you're making before the court about why it's not, the president simply does not have legal authority under the law he's citing to do what he's doing.

Yeah.

So basically, the president claims virtually unlimited authority to impose any tariffs he wants on any country for any reason, any length of time, and any amount, and the law simply doesn't give him that power.

As you mentioned already, uh, it doesn't even mention tariffs at all, and if it did give him that power, if it really did give him unfettered tariff authority, that would be a violation of the Constitution, because that power is given to Congress.

And while Congress might delegate some flexibility to the president, it can't simply transfer that power to him wholesale, thereby making him like a king and able to impose any tariffs, uh, that he wants.

So whether you look at the text of the law or whether you look at the fundamental constitutional principles of our legal system, you get the same result, which is that the president simply doesn't have the kind of vast sweeping power that he claims.

So it's not even, like, it, these aren't even being wielded under the internal logic that he himself claimed.

claimed.Yes, that's right.

Um, can you talk about that? This is a big, big thing that's at stake here beyond this case, isn't it?

Yeah, so obviously there's been a bunch of other power grabs by this administration, some of which we can talk about.

I myself have, uh, been involved in opposing that under the, uh, Enemies Act.

And when you put them together, a lot of them are essentially claiming the powers that normally are reserved for extraordinary emergency situations can in fact be used as a matter of course.

This is a standard tactic of various authoritarian regimes around the world.

Admittedly, emergency power has been abused by previous presidents, including, I'm sorry to say, President Biden with, for example, his student loan forgiveness, uh, power grab.

But the power grab here is even bigger than those.

I wanna ask you, Ilya, what happens now? Can you walk us through how this unfolds? What do you expect in the next few months or over the next year, like, in the courts? How, how, how is this case gonna proceed?

So what are the prospects for success here? And let's say it does go to the Supreme Court, what, uh, what might they end up ruling? Are you, are you confident or is it touch and go? What?

What?So obviously, they have- they would have a lot of o- options before them, uh, and it's hard to predict exactly what they would do, but I think we have a strong case including in terms of the jurisprudence that this court and particularly the conservative six to three majority on the court has laid out over the last few years.

I already mentioned that the text of the statute does not give Trump the kind of authority, uh, that he claims.

Uh, many of the judges are textualists and say you should carefully consider the text of the statute.

Uh, second, uh, the- there is this doctrine which has been developed more fully in recent years called The Major Questions Doctrine, uh, which essentially says that if the executive claims that Congress has delegated to it some power of, uh, vast economic or political significance, then at the very least, the executive has to show that there is a clear delegation here.

Uh, and here it's anything but clear.

It's not at all clear, uh, that there is tariff authority in the statute at all.

So Ilya, what's a plausible ruling from the Supreme Court that you can envision? What do they say?

Ilya, in your book on foot voting and, uh, migration and political freedom, you also address the question of discriminatory enforcement, uh, in particular in chapter five, which talks about foot voting and self-determination. You say, "If the majority ethnic group of a nation has the right to exclude members of other groups, why can't the ethnic majority of a particular region claim the right to exclude people from sub-national jurisdictions in the same federal system?" Tell us more about the problem of discriminatory targeting of vulnerable minorities, uh, that also arises in the international migration context and how it may be playing out here.

So y- y- your question sort of raises two questions, one of which is not that relevant to the US and one of which is. My book, which is more a work of political theory, uh, rather than a book about, you know, the US immigration law as such, uh, there's a part that focuses on the idea that you see in many countries which say that there's a particular ethnic or racial or cultural group who are the true owners of the territory and therefore they have a, you know, the right to exclude other people. So you can argue the ethnically French people are the true owners of France or the ethnic Japanese are the true owners of Japan and the like. Uh, in the book, I criticize that theory, but it's not that relevant to this discussion because you rarely hear this theory in the US because if it did apply to the US then it would seem to have the implication that the true owners of the land are Native Americans and they have the right to expel all the rest of us, uh, and for obvious reasons. You know, most Americans, particularly most white Americans, do not want to make a claim like that. What is relevant though is that, uh, in immigration law, including in the US, there is a long history of ethnic and racial discrimination. Indeed, federal power over immigration wisely dates to the Chinese Exclusion Act of 1882, which was the act that led to litigation in which the Supreme Court wrongfully I think actually ruled, uh, that the federal government has a general power to restrict immigration despite the views of founders like James Madison who argued otherwise and despite the fact that there actually is not a provision in the Constitution which specifically says, uh, that the federal government has power, uh, over immigration. Uh, and so many of the laws historically which have restricted immigration have racial or ethnic motives or even are explicitly racially based in various ways, uh, and today while we have relatively little in the way of explicit, uh, racially or ethnically based, uh, standards in the, written into the laws, we do have an enormous amount of ethnically and racially discriminatory enforcement. Indeed, uh, immigration enforcement is almost the only area of federal law, uh, where, uh, there's an actual official policy allowing racial profiling. Uh, it's only allowed, quote, "In 100 miles of a border area," but that turns out to be, uh, areas where two-thirds of all Americans live. Uh, so there is a lot of, uh, racial discrimination and profiling here. It didn't just begin with this administration, but obviously it has become worse in recent weeks as you see with reports of, uh, actual American citizens detained for hours or even days at a time simply because, you know, they spoke in Spanish to each other, as in one case involving Puerto Ricans, uh, or, you know, they just seemed like they looked Hispanic or the like. Uh, and, uh, you know, racial profiling is a problem in law enforcement of many kinds. It's very difficult to get rid of, but it's particularly a problem in immigration enforcement for obvious reasons. Even police officers who are not raving racial bigots or anything like that or ICE officers or the like, uh, you know, they might engage in what economists call rational stereotyping, that is, they can rationally assume that a person who looks Hispanic or a person who's speaking Spanish or the like is more likely to be an undocumented immigrant.

Thank you so much for that, and for noting that there are only four instances where people have been deported under the provision, no evidence that concerned a person's speech. Uh, Ilya, in your piece in The Volokh Conspiracy: The Case Against Deporting Immigrants for Pro-Terrorist Speech, you argue, uh, that the deportation would be a violation of the First Amendment, although you note that there's some ambiguity under current precedent about whether or not non-citizens can be deported for speech. Tell us about why you believe this violates the First Amendment.

Yeah. So the case is simple. Uh, the First Amendment says that Congress is not allowed to make any law that violates their freedom of speech, and there's no exception for immigration law. Like, there's no statement as well, except in the context of immigration, there you can deport people for speech or penalize them for it. Now, it might be said, "Well, people don't have a legal, or at least non-citizens don't have a legal right to be in the US, so then maybe they can be, uh, de- deported for their speech." But in virtually every other context, uh, courts readily hold, uh, that, uh, you cannot deprive somebody of some government benefit or service merely based on their speech, even if you don't have a constitutional right to that benefit or service. So for instance, if Congress were to pass a law saying only Republicans can get Social Security benefits, uh, you know, that would clearly be unconstitutional, even though there is no constitutional right to Social Security benefits, and Congress could, if it wanted to, just abolish Social Security or reduce benefits or something like that. And the same thing here, even if the person doesn't have a constitutional right to be present in the United States, still penalizing them by denying them, uh, you know, thi- this government benefit or, uh, or the like, uh, that still w- is a violation of freedom of speech 'cause it makes the grant of the benefit or denial of it turn on the content, uh, of their speech. And I would add the Supreme Court has held in 1945, uh, you know, that non-citizens in the US do have, uh, a constitutional right of freedom of speech. There are various precedents that we can talk about, uh, where, you know, courts have allowed deportation of people based on their speech, but many of those, the most notable being the Supreme Court's Harasedes decision in 1952, uh, were for speech that at the time wa- was not protected by the First Amendment even for American citizens. So, at that time, they upheld the deportation of people for being members of the Communist Party, but as the Supreme Court noted in that very case, just a year before in the Dennis case, the Supreme Court had upheld, uh, criminal punishment for being a member of the Communist Party even for American citizens. I think that earlier decision was wrong and it has since been largely, you know, undone by later Supreme Court precedents, but at the time, uh, you know, being a member of the Communist Party was not protected free speech even for, uh, native-born American citizens. Uh, so in my view, uh, the First Amendment precludes, uh, deportation of non-citizens or other penalizing of non-citizens, uh, for the content of their speech, at least so long as that speech is the kind that's generally protected, uh, by the First Amendment. And I would note that the statute that Adam mentioned, which they're trying to use, there is actually a ruling on the books out, albeit not a binding precedent, which says that that statute is unconstitutional. Ironically, it was issued by, uh, Judge Marion Tr- Maryanne Trump Barry, who is President, who was President Trump's sister. She was a district judge, uh, and she ruled that that law, you know, is unconstitutional. Her decision was overruled on appeal on other grounds, uh, but nonetheless, I think she was correct in her ruling on, uh, that particular law, uh, and I hope, you know, if this gets litigated again now, that, uh, other judges will listen to, uh, Maryanne Trump Barry rather than to Donald Trump, uh, and follow her position, you know, on, on the issue.