WRFH/Radio Free Hillsdale 101.7 FM - Under the Radar - Episode 22

Episode Date: November 8, 2025

This week on “Under the Radar,” hear about the arguments on the floor of the Supreme Court about President Trump’s tariffs, an executive order that shows the real strategy behind those tariffs, a Supreme Court case that requires honesty about one’s gender on passports, and more. 

This is Under the Radar on Radio Free Hillsdale 101.7 FM. Now, here's your host, Luke Miller. This week on Under the Radar, hear about the arguments on the floor of the Supreme Court about President Trump's tariffs, an executive order that shows the real strategy behind those tariffs, a Supreme Court case that requires honesty about one's gender on passports, and more. I'm your host, Luke Miller, and on this show, we'll cover the news you didn't catch

this week from the mainstream media. While they're covering the president's latest tweets, here you can hear about the new legislation, executive orders, and Supreme Court decisions that affect you. Welcome to Under the Radar. The first piece of news I have for you this week is something that I'm extremely excited to cover. I've been covering every bit of this court case from the very beginning, and now we've finally gotten to the point where we're hearing arguments on the floor about President Trump's tariffs. So just to give a real quick recap of the history of this case. It was in the beginning of February that President Trump first started implementing tariffs executively, and he did so under the premise that fentanyl was pouring into

the United States from the Canadian and Mexican borders and coming from China. And so President Trump, under the IEEPA, created an executive order that allowed him to regulate the imports from those countries because we were in a national state of economic emergency that he declared because of the fentanyl and opioid trafficking. On April 2nd, President Trump added to that his retaliatory tariffs. Under the same IEEPA, President Trump declared that we were in a state of economic emergency in our significant trade deficits that we're carrying with countries like China and many others. And so as a response to the fact that we're in trade deficits that the Trump administration has been arguing are extremely damaging to the American economy and to the future

of the American economy, they argued that under that emergency, they could put in place these reciprocal tariffs that would even things out a little bit. Learning Resources Incorporated and a couple of other small businesses in the United States, brought this case against the Trump administration, claiming that they had been harmed by the executive tariffs, that the import tariffs had cost them significant revenue over the course of this year, and so they had a right to sue the Trump administration, claiming that the executively imposed tariffs were an overstep of the authority given to the President in the International Emergency Economic Powers Act, which, just as a reminder, gives the President authority to deal with any unusual and extraordinary

threat, which has its source in whole or substantial part outside the United States, to the national security, foreign policy, or economy of the United States. The president can, under this act, declare a national emergency, and the key phrase that has been debated this week, the president may then regulate importation or exportation of property in which any foreign country or a national thereof has any interest. This case was brought before the Supreme Court, Wednesday, November 5th. It has been making huge headlines this week. The basis of the United States Solicitor General John Sauer, who's arguing on behalf of the Trump administration, the basis of his argument is that President Trump had determined that, quote-unquote, our exploding trade deficits had brought us to the brink of an economic and national security catastrophe, and that the traffic of fentanyl and other opioids into our country has created a public health crisis, taking hundreds of thousands of American lives. And as a result, the International Emergency Economic Power Act confers major powers to address major problems on the president, who is perhaps the most major actor in the realm of foreign affairs. And quite obviously, he adds that regulating importation, which is the exact wording of the bill, clearly includes tariffs. Now, that's something that's being

disputed by the plaintiffs, I should add. There are multiple challengers that are arguing this case right now because there are several cases. The Learning Resources Incorporated case is only one of them. There are a couple of other small businesses that are arguing before the Supreme Court against the tariffs as well. And there are representatives from 12 different states across the United States that are also arguing before the Supreme Court here too. Now, they're arguing and the judges seem to agree from the most part that the bill in question here was not Congress handing to the president the power to overhaul the entire tariff system with all of the effect that that would have on the American economy. Since 1977, when the bill was passed that President Trump is using

to justify these tariffs, no other president has tried to impose tariffs using just that law. And they also bring up what I think is a really good argument that if the president can declare a state of national emergency for something like trade deficits, there is just as equally the opportunity for the next Democrat who comes into office to declare a climate change emergency and make sweeping changes to the tariff system based purely off of that. And that seems to be something that the Supreme Court justices were persuaded by. And that is a really good principle in politics to have anyway, is if it's a power that you're not comfortable with your opponent using to its fullest extent,

then you probably shouldn't use it yourself. Here's Supreme Court Justice Neil Gorsuch questioning U.S. Solicitor General John Sauer about this very point. But don't we have a serious retrieval problem here? Because once Congress delegates by a bare majority in the president's signs it. And of course, every president will sign a law that gives him more authority. Congress can't take that back without a supermajority. And even, you know, even that, it's going to be veto proof. What president's ever going to give that power back?

Pretty rare president. So that was Supreme Court Justice Neil Gorsuch, who was a Trump appointee. Later in that line of questioning, he would go on to voice concern that a future president might be able to declare a climate change emergency and impose 50% import tariffs on gas-powered vehicles. and auto parts that could end up pricing out the U.S. gas-powered vehicles market, things like that, that he knows, and we all know the Trump administration wouldn't be comfortable with their opposition doing. But this seems to be the entire nucleus of the argument of the plaintiffs. They're arguing for how it should be, not how it is. There's been very little argument brought up by the plaintiffs about the actual International Emergency Economic Powers Act itself and how it's read.

And part of that is because it's been used so rarely to do things like this. The only example in recent memory is President Biden using this bill to impose different kinds of trade regulations as a result of the COVID-19 state of national economic emergency he declared then, which was ended by Congress in 2023. The more left-leaning justices have all been bringing up that point that no president since the inaction of the bill in 1977 has tried to use it to executively impose tariffs, but the bill gives power to the president from Congress to regulate importations, which Neil Gorsuch himself said would include things other than tariffs like licenses, which would be economically identical to a tariff.

So the line of argument against the Trump administration and from the more left-leaning judges seems to come back to no one has done it this way before, but not that it's necessarily wrong according to the act itself. And it certainly does violate all other precedent. There hasn't been a situation like this before. Congress was given power under the Constitution to levy taxes and to levy tariffs. But I think a great point that the Trump administration is making here is that, well, Congress did give this power to the president. in 1977, and even if the president has the veto power over the joint resolution that's trying to overturn these tariffs, which I talked about on the show last week, something that was signed

by the Senate and the House, trying to declare an end to Trump's national economic state of emergency. The president has veto power over that. And what the Trump administration is arguing in this case is that, well, if Congress wants to take that power back from the president, all they have to do is amend the bill. They have the full power to amend the original bill, the 1977 IEEPA. And if they did that, they wouldn't have to worry about the presidential veto at all. He can't veto that. And so Congress could go back and do that right now if they wanted to and clarify exactly what they mean, which is something that a lot of the left-leaning judges have suggested that Congress should do. However, that again is a normative statement. That's not how it is.

Which leads me to another pivotal line of questioning from Amy Coney-Barrant and Brett Kavanaugh, as they were questioning Benjamin Gutman, who's the Solicitor General of Oregon, who's representing the group of the 12 states that are challenging the Trump administration's tariff policy here, the justices argued that in which the justices basically led Gutman into admitting that the IEPA on one hand could give the president very broad economic powers like allowing him to shut down all trade with another country but on the other hand would not allow the president to take a much smaller step like imposing tariffs and that clearly seemed contradictory Brett Kavanaugh called that an odd donut hole in the in the original bill because if imposing selective tariffs on a country is an overreach of power according to the bill but shutting down all all trade with another country isn't, then that seems to not really make much sense there. The last thing that I think is worth bringing up about the arguments that are going on here is that the plaintiffs are all trying to ask the government to return the money. And I don't know how that would work in any way, shape, or form.

And it doesn't seem that anybody knows. That's been a huge topic of discussion on the floor is if the Supreme Court were to rule these tariffs illegal, they're asking the Trump administration to pay back that money. The individual companies that are suing the Trump administration are asking for their losses to be paid back to them. The states are asking for their losses to be paid back to them and for the other tariff money that was taken to be paid back to other countries, which I'm sorry, would just be completely impossible. There's just no way to do that, which will end up being a problem for the Supreme Court if they side against the Trump administration in this

case, which right now it seems likely to do. Many of the people who are covering the hearings in the Supreme Court are suggesting that justices Brett Kavanaugh, Clarence Thomas, and Samuel Alito are looking like they're going to side with the Trump administration, while the other Republican appointed justices, Chief Justice John Roberts, Amy Coney Barrett, and Neil Gorsuch are all kind of on the fence at the moment, looking like they're going to side against the Trump administration with the three liberal appointed justices. But it's really hard to predict which way this is going to go at this point. But if the Supreme Court does side against the term administration, that is hundreds of billions of dollars that have thus far been collected in

tariff revenue, that they're looking at having to repay somehow. And that just seems very unlikely to happen in any meaningful way. The very last point I'll make about this case is that that if the court does rule against the Trump administration, there are other ways that the Trump administration will most likely pursue these same tariffs. The International Emergency Economic Powers Act is only one of the many ways that the president can executively impose tariffs. It is the easiest way and the simplest way, which is most likely why they went to it first. But if the court strikes these executive orders down as unconstitutional, then the president can operate under the Trade Expansion Act of 1962 or the Trade Act of 1974, which there's a couple

of clauses in there that would allow the president to enact tariffs like Section 201, which allows that the president can take action like imposing tariffs or quotas if the U.S. International Trade Commission finds that increased imports are causing or threatening serious injury to U.S. industry, which makes a lot more sense with what the administration is arguing anyway. And then Section 301 of the same bill allows the president to take action against unfair foreign trade practices that burden or restrict U.S. commerce, which also makes a lot more sense than the IEEPA does and ever has under what the Trump administration is actually. arguing is going on here. So from the way the case has gone so far, it seems like the court is

likely to cite against the Trump administration's use of tariffs under the IEPA, but it's likely that we haven't seen the end of the Trump administration's attempt to use tariffs, no matter what, the result of this court case. You're listening to Under the Radar with Luke Miller on Radio for Hillsdale 101.7 FM. The next piece of news I have for you this week is an executive order signed by the president November 4th entitled Modifying reciprocal tariff rates consistent with the economic and trade arrangement between the United States and the People's Republic of China. So this executive order to cites the International Emergency Economic Powers Act to change the existing tariff relations between the

United States and China. The executive order cites some of the history that's been going on this year with regard to these tariffs, namely that on April 2nd, the Trump administration used the IEPA to issue reciprocal tariffs against China to deal with the national economic state of emergency when it comes to the trade deficit that we have, particularly with China. China then announced retaliatory tariffs against the United States, to which the United States retaliated again and rose tariffs even higher. But this executive order particularly states that President Trump had a meeting with the president of China, Xi Jinping on October 30th. In those meetings with Xi Jinping, President Trump and the People's Republic of China, reached a, quote, historic and monumental deal

on economic and trade relations. Under the arrangement, the PRC, the People's Republic of China, has committed to, among other things, postpone and effectively eliminate their current and proposed coercive global export controls on rare earth elements and other critical minerals and address Chinese retaliation against United States semiconductor manufacturers and other major companies in the semiconductor supply chain. In this deal, the People's Republic of China also agreed to suspend or remove tariffs on a vast majority of United States agricultural products until December 31st, 26. So that's over a year that all tariffs on many of these agricultural products have been completely eliminated. The United States in the agreement,

committed to suspend the heightened reciprocal tariffs on imports of the People's Republic of China until 1201 a.m. Eastern Standard Time on November 10, 2026. I'm not sure what specifically that date and time has to do with it, but that's the essence of this deal overall. The executive order says that this deal will help remedy non-recipical trade arrangements and address the United States' economic and national security concerns. And so I think that really sheds an important light on what the Trump administration is really trying to do with these tariffs. I've heard many people, especially the free market economist types argue that tariffs like these are only really productive if the end goal is to reduce overall barriers to trade, meaning that if the United States is increasing

tariffs with the goal of eliminating tariffs altogether or making an agreement with the other nations involved to lower the overall burden of tariffs, that can make these kinds of tariffs worth it, could stimulate trade, could stimulate the economy of both nations, and could even out the terms of the trade, essentially, because it is true, at least up until the beginning of this year, that most other nations around the world were imposing significantly higher tariffs on our goods as we were on their goods. So I think this executive order is part of a pattern of the Trump administration acting in this way, not to eliminate tariffs altogether, but to lower the overall burden of tariffs and to even out the playing field, so to speak.

So let's look back at the timeline of this a little bit and look at some other examples that support this conclusion as well. Specifically when dealing with China, the first tariffs that the Trump administration put on Chinese imports into the United States was a 10% tariff under the emergency regarding fentanyl trafficking that went into effect on February 4th. China retaliated the same day by announcing all sorts of countermeasures to that, including tariffs of its own and investigating Google's operations in China, which I didn't really know about. The next step, which happened on April 2nd, under the other wave of the reciprocal tariffs, was that the Trump administration said that the United States would now charge a 34% tariff on imports from China, to which China

responded two days later by announcing a plan to impose a 34% tariff on imports of all U.S. products. And they also said that they were going to prohibit some exports to the United States on rare earths, which is what's addressed in the executive order from this week, including materials that are used in high-tech products like computer chips and electric vehicle batteries. So that's part of why the deal was made this week was to open the markets up to some of those important rare earths, things that we need for our computer chips in particular. So just a few days after China retaliated against the United States there in April. President Trump again raised tariff rates on China up to a total of 104 percent, to which, as you can imagine, China upped its retaliation to an 84%

tariff, to which the United States responded again and announced 145% tariff rates against China. China retaliated again, raising its tariffs on the United States to 125%, and this all happened within a week and a half of these reciprocal tariffs taking place. So the most important date in this timeline is May 12th, so about a month after this, the United States and China agreed to roll back most of the tariffs that each nation had imposed on the other and declared a 90-day truce in their trade war. The United States cut the tariffs down from 145% to 30%. China cut its tariffs from 125% to 10%. So while there have been more things that have happened since then, that was essentially the state of affairs up until this week. That truce had kind of been extended. We still were both

imposing tariffs on each other. But the end result of this is that President Trump made a deal with Xi Jinping to lower the overall burden of tariffs and to even out the playing field when the United States and China are dealing with each other in trade. And even from the most pure free market economist's standpoint, it seems hard to object to putting the United States in a better trade position when dealing with China and lowering the overall tax burden when it comes to one of our foremost trading partners. Now, that doesn't ignore the fact that United States tariffs have gone up significantly overall, but I don't think that China is the only case in which Trump is trying to do this kind of thing to lower the burden of tariffs overall. A similar sort of

pattern took place in the trade war disputes between the United States in Canada and the United States in Mexico. And the same kind of thing happened with the United States in Britain, who announced a trade deal on May 8th, which would lower the financial burden from tariffs for both countries while giving Americans greater access to the British markets, opening Britain up from more American exports, which essentially means that Britain lowered their tariffs on us relative to our tariffs on them. So the executive order this week that alters our tariffs with China, which essentially extends and makes permanent the truce that we had made with them in the trade war, and it lowered their tariff rates that they were imposing on us, and even the

playing field a little bit, is a reflection of the Trump administration's agenda with these tariffs, not just when dealing with China, but more broadly as well. The last piece of news I have for you this week is another Supreme Court case. This time a concrete victory for the Trump administration's policy that requires the State Department to issue federal ID only displaying the passport holders or the ID holders biological sex at birth. In the case called Trump v. Orr, the Supreme Court decided this case on Thursday, November 6th, overturning the decision by a district court judge in Massachusetts that would have required the State Department to issue passports to transgender and non-binary people that reflect

the sex designation of their choosing. In the decision that the Supreme Court handed down, the majority said, quote, displaying passport holders sex at birth, no more offends equal protection principles than displaying their country of birth. In both cases, the government is merely attesting to a historical fact without subjecting anyone to differential treatment. This is a response to the claims of the plaintiffs, which were seven individuals that identify as transgender or non-binary, who argued that the executive order that the Trump administration issued on January 20th that required the state department, and all other federal agencies to recognize only male and female on all federal documentation. The plaintiffs were claiming that this Trump administration policy violated their rights to equal treatment under the Constitution, their rights to international travel and informational privacy. The lawyer for the plaintiffs argued to the Supreme Court that they should leave the district court judge's order in place that prohibited the rule because they said the new passport policy puts transgender, non-binary, and intersex people in potential danger wherever they use a passport. It would further to say that the government has never explained how passport sex markers that align with gender identity could possibly affect foreign relations,

which is something that the Trump administration has been arguing in this case saying that if they were trying to extradite someone, let's say, and their passport had an X on it, which was the third option that was on the passports under the Biden administration policy, then it would be much more difficult to do so. And that was not the main argument of the Trump administration in this case. It was kind of a secondary argument, but that was one thing that was involved in the case. Now, the dissent was written by Justice Katanji Brown Jackson, who had a lot to say about this. But the most important quote from her dissent was that the government has not shown why it faces harm if the policy is not implemented now, if it's put on hold for a little while longer, while this is litigated further in legislation. She says that it's not urgent that the Trump administration get to put this policy in place, but that the challengers have shown that they, quote, will suffer concrete injuries if the government's passport policy is immediately enforced. namely the inability to obtain passports with sex markers that match their gender identity, which can lead to significant psychological issues as well as the possibility of increased violence, harassment, and discrimination.

The biggest thing that stood out to me from this case was just how radically different the justices viewed this expression of gender on your passport. Like the quote I read from the majority opinion, six of the judges believed that the displaying of the passport holder or the ID holders, biological sex at birth is the same as displaying the country of birth. It's just a historical fact. There's no differences in how you're treated under the law if you have a different biological sex marked down on your passport. That is highly illegal. For example, a federal officer can't treat somebody differently because it says male on their passport instead of female. And so the majority viewed it as just a historical fact. It's the same as displaying where you were born and it no more offends equal protection principles than that. And the dissent argued that not being able to put X or a third option of your federal ID will lead to violence and discrimination. And so it seems like they've gone into extremely different directions in how they're interpreting this policy. But in the end, the final vote was six to three with the Supreme Court deciding to allow the Trump administration to require that all new passports display a person's biological sex at birth. So to recap this week, we had the Supreme Court arguments about the legality of President Trump's

tariffs, an executive order which showed the underlying agenda of those tariffs, and a Supreme court decision confirming no third gender option on federal ID. Tune in next week for more. Well, that's all I have for you today on Under the Radar. I'm your host, Luke Miller, and I want to thank you for listening and encourage you to tune back in next time for more coverage of the news that fell Under the Radar. You're listening to Radio Free Hillsdale 101.7 FM. Thanks for listening to Under the Radar with Luke.

here on Radio Free Hillsdale, 101.7 FM.