AYESHA RASCOE, HOST:
President Trump's sweeping global tariffs face their most consequential test. The U.S. Supreme Court will hear oral arguments on Wednesday in two cases challenging the president's power to impose such taxes, which are historically Congress's prerogative. Michael McConnell represents one of the plaintiffs. He's also a constitutional law professor at Stanford University and a former federal judge nominated by President George W. Bush. He joins us now. Thank you for being with us.
MICHAEL MCCONNELL: Happy to be with you.
RASCOE: Who are the plaintiffs in these cases regarding the tariffs, and how do they say that they've been harmed?
MCCONNELL: There are two sets of private plaintiffs, all of them small businesses. They're harmed both because they pay the taxes directly, but also because the size of the taxes and their shifting, changing natures has been highly disruptive to their supply chains. You know, these are companies that purchase inputs from elsewhere and then engage in sales or manufacturing within the United States. They rely upon these imports in order to do their business. If they can't import these goods and do so reliably and know what their prices are going to be, it makes it very difficult, maybe even impossible, for them to continue their businesses.
RASCOE: You're part of the team for one of the plaintiffs, and you also wrote a friend-of-the-court brief earlier this year along with other prominent lawyers and scholars, many of them conservative, arguing that this case isn't actually about tariff policies but about presidential power. Explain that position.
MCCONNELL: Yes. This fits into a wider picture that over the last, you know, several decades, even but especially in more recent years, presidents of both political parties have been increasingly asserting unilateral power that had never been exercised by presidents in the past and that under the Constitution belonged to Congress.
RASCOE: But the administration is arguing that Congress has granted the president broad authority to use tariffs to deal with emergencies and that striking them down would have, quote, "catastrophic consequences." Do you think the justices will be receptive to that argument?
MCCONNELL: Well, in every one of these cases, Trump's predecessors as well, the president has always claimed that there is some kind of hidden authority in a vague old statute and that not allowing him to do what he wants to do will be catastrophic. The court has not bought those arguments in the past, and I think they're going to look skeptically upon the claims here - the claim being that a trade deficit is unusual and extraordinary threat to the United States, even though we've had a trade deficit every single year since 1974. And the trade deficit, as a percentage of GDP, has been extremely stable for the last 10 or 12 years.
RASCOE: During the Trump administration, which is very new, we haven't had a lot of Supreme Court cases. It seems like they've allowed, at least temporarily, some of these controversial things, like suspending foreign aid and other things, to go forward at least temporarily. Are you concerned that this court may now be more deferential to presidential power?
MCCONNELL: I think there are good reasons why, on an emergency docket where there is a district court order from a single district judge without full argument, without a full decision, I think the court has been deferential to the executive under those circumstances. But this is a fully argued case based upon an entire record and a final judgment. I think that the court is going to decide this according to the law.
RASCOE: What's at stake if the court sides with President Trump? How would that change presidential power going forward?
MCCONNELL: I don't think there's much doubt that if President Trump wins the right to set tariffs unilaterally, this will be something every future president will use, which makes it impossible for us to conduct trade policy the way it has historically been done. Historically, presidents negotiate trade deals with other countries, and then Congress enacts them into law. If the president can simply change tariff policy on a dime, there can be no confidence by the international system that the United States is going to stick with a policy or comply with trade negotiations the way we have in the past.
RASCOE: But is it possible that in the future this could set a precedent beyond just trade policy, say, giving a Democratic president more leeway to take action on climate change or health care if they deem those to be an emergency?
MCCONNELL: That is certainly true. Greater executive power looks like it is in favor of, you know, this Republican president right now, but greater executive power could be just as much used by Democratic presidents in the future for policies of a very different nature.
RASCOE: That's Michael McConnell. He is a constitutional law professor at Stanford University. Thank you so much for being with us.
MCCONNELL: Thank you.
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