Jack Goldsmith
speaker
462 appearances
2 recordings
1 series
first heard Apr 2025
last heard 10 Sep
Jack Goldsmith’s voice in public audio — every appearance, attributed to the second.
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recordings per month · last 12 monthsRecordings per month over the last 12 months — 1 in all, peaking in Sep 2026 with 1.
Appearances
I'm a dissenter on this. Interesting. And I'm not a strong dissenter. I think it's much more complicated. So the... This is the one issue of presidential power that has brought out the conservatives. They haven't been complaining about anything else, which is shocking.
My only point is, is that he's done a lot of other things that are extremely dangerous and should be contrary to conservative principles, legal principles. But fair point. So let me just say a couple of things. First of all. I just want to reframe it a little bit from the way the commentary has been treating this.
First of all, Congress has been delegating tariff authority to the president since the 1790s on increasingly broad terms. The Supreme Court in several decisions, several famous decisions, has upheld pretty broad interpretations of tariff authority to the president many times. And the president has many statutory bases for issuing these tariffs.
Now, the focus has been on IEPA, the International Emergency Economic Powers Act. I'm going to have to just get into the law just a little bit. Do it. So, this is a statute that was enacted in the 70s, and it is an extraordinarily broad delegation of power to the president.
Whenever he finds, and this is the trigger, an unusual and extraordinary threat outside the United States, people have been saying, oh, this isn't one of those. Sorry. The presidents under IEPA dozens of times have made emergency findings of an extraordinary threat outside the United States much lower than the economic threat President Trump has identified.
That part of IEPA will not be hard to satisfy. And then the statute says that the president, once that trigger is made, gets to regulate imports. And then President Nixon did this. It was an analogous thing. He did a 10% basically import duty under the predecessor to this statute. identical language that justified the 10% duty.
So the first point is, on the face of the statute, the president, in my judgment, has at least a plausible argument. So my only point is, I don't know who's going to win or lose this. My only point is that the president is on stronger legal ground. I'm not saying he's going to win. He's had a lot of tricky legal issues, but...
Unless they've... But the opposite could be the case. This may be the example in which they show that the major questions doctrine is a principal doctrine or they finally address the extent to which it applies in contexts that are arguably foreign relations. It's very hard to predict. But my only point is that... I've just been reading commentary that says, you know, this is obviously illegal.
And I haven't seen any one contrary piece I read. And I just want to insist that this is much more complicated than people have been letting on.
So I don't know, obviously. And it's important to understand that the court is a they and not an it. It's nine people. The chief justice has a little bit of authority to... It's kind of three people, though.
That's a very fair point. So it's three people. And I'm pretty confident that the chief is thinking in these terms. And it's an extremely complicated calculation. The court has discretion about which cases to take for full review and when they can decide to take a combination of cases that they might think
I'm not suggesting they think this way, but they might think this way, that gives the president some wins, but has some very important losses that make the, and the wins make the losses easier to swallow. Some people think the court thinks like that and it might well.
I don't know exactly what their calculus is, but the way they're dealing with the emergency docket and pushing things off and delaying and trying to find the right case. suggests that, I mean, this is clearly part of what's going on. Right.
Absolutely. The people that say that they're ducking fights is, I just think that's wrong. And the reason is it is extremely early. The Supreme Court typically takes a case after trial and appeal. Right. It's dealing with these cases before we've even had a trial. And it might take some of these cases early, but that is very, very unusual.
All it's doing now is setting the baseline for how these cases are going to be litigated.
Again, I'm really reading tea leaves, but I'm really speculating. But I believe that the meaning of that short order was to try to nudge the president to do the right thing without ordering him and with a signal that they might not be able to order him.
Correct. And I want to emphasize, executives do wrong things. There are illegalities that occur in the world for which there are not judicial remedies. This is something people don't understand, and it's a bitter pill to swallow often. And I don't think that the Supreme Court is going to go to the mat in ordering the Trump administration to negotiate with El Salvador to get this person back.
I don't think this is where it will pick its fight. And it would not be on its strongest ground in picking a fight there.
Have I said that before? I guess I have.
I do believe that, but I'm not 100% confident of it. So my view is... Again, it really depends on the case and the clarity of the order and whether the Supreme Court is unanimous and the like. I do not think that, and I hope I'm right, that the Trump administration is going to defy a clear order from the Supreme Court. And I think the Supreme Court will be sensitive about where it issues those.
Showing 421–440 of 462 · page 22 of 24
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