May 30th, 2025

On Friday’s Mark Levin Show, the framers of the Constitution did not grant courts, such as the International Court of Trade, the final authority on matters like tariffs, reserving that power for Congress. The Constitution gives Congress broad authority over taxation and spending, and through a 1977 emergency law, it delegated certain tariff powers to the president. Courts lack the constitutional basis to override such delegations. Historical records, including Madison’s notes, the Federalist Papers, and state ratification debates, show the framers rejected giving courts supreme authority, like judicial review, to resolve separation-of-powers disputes. The framers of the Constitution, heavily influenced by Montesquieu, designed a government with a strict separation of powers to prevent tyranny, as Montesquieu warned that combining legislative, executive, or judicial powers in one entity leads to arbitrary rule and oppression. Congress should address this through legislation, not courts through litigation. Also, Sam Antar accused a Politico writer of “reputational laundering” for praising New York AG Letitia James as a “Shadow Attorney General” in a Democratic shadow cabinet, while ignoring her federal criminal investigation for alleged mortgage fraud. Politico’s omission of the DOJ referral shows the media bias, as James has targeted Trump, notably winning a $450M civil fraud case against him. Later, the Wall Street Journal reports the decline of America’s military-industrial capacity compared to China’s rapid growth in the sector. The U.S. has allowed its defense manufacturing and supply chains to weaken due to underinvestment, outsourcing, and a focus on short-term efficiency over long-term resilience. This is frightening.

Photo by Spencer Platt

The podcast for this show can be streamed or downloaded from the Audio Rewind page.

Rough transcription of Hour 1

Segment 1
Hello, America. Mark Levin here. Our number 877-381-3811. 877-381-3811. By the way, fantastic show tomorrow night on Life, Liberty and Levin, we have Michael Duran, an expert on Iran. We have David Mamet. Remember David Mamet, Mr. Producer? Probably the greatest current screenwriter. And play writer. Period. And, you know, he over the years, he took a journey from sort of radical left. And now he’s an outspoken, solid conservative and Trump supporter. But he’s written a fantastic book that’s just fascinating. He’s got a new movie coming out. And anyway, I wanted to talk to him. So he’ll be on the program. And again, Michael Duran is he’s the guy that wrote and exposed what Biden was doing with Iran and that whole policy that was coming out of the Biden regime. We want to talk about that. But I had my opening statement as well tomorrow night. I want to get into that heavily, not tonight, but when I do it. And I think you’re going to love the show tomorrow night, 8 p.m. Eastern Time. Hit your DVRs. Watch it live. I think you’re going to love it. Now, there’s a couple of things I want to talk about today, but I want to start with something that’s very, very important. The president talked about it today, tariffs and judges. And, you know, when it comes to these things, the constitutional things, this is really stop one on your trip, I think. But I want to make something clear. I started this the other day. I think it was Wednesday. It doesn’t matter. What is the real issue here with the tariffs? Now, I’m not talking about the economic issue. Okay. Some reform. Some are against them. Some are halfway. It doesn’t. I’m not really using this time to talk about the efficacy or lack thereof of tariffs. I want to talk about the Constitution. Not the economic consequences of tariffs. Okay. We have this this court, the International Court of Trade. Most people never heard of it before. I hadn’t heard of it, but I certainly have researched it now. It’s a legitimate court created by Congress. That’s how we create the lower courts. Courts by Congress. Only the Supreme Court’s in the Constitution. But Congress is authorized to create these other courts or abolish them, for that matter. Congress also has the power to limit their jurisdiction. Congress has a lot of power that it doesn’t exercise. It’s like the treaty clause when it comes to the Iran deal, as I mentioned, the treaty clause. Is Congress, the Senate in particular. Are they going to assert their power because they seem to just roll over and play dead a lot, which they’re free to do, but I’m just telling you about the consequences. So here we have. The Constitution, which gives plenary very broad power to Congress. To tax the spend, they create debt and so forth and so on. So in 1977, Congress passes this law. It’s kind of an emergency law and they empower the president under this federal statute to take steps if he thinks it’s in the best interests of the country. And there’s now a fight over what that means. Over what that means. And so this court stepped in. It had private litigants, private petitioners, and they said while the president is expanding this language, he’s abusing the language he’s got across the board terms. And that’s not what was contemplated and that’s outside the scope of the language. Besides, Congress doesn’t have the power to delegate all this to the executive branch. And so with a brilliant opinion from this court, I read it this morning, 60 some pages. If you’re in a hurry. Read the last 30 or 40. And they say, look, that’s correct. A President Trump has done on tariffs is there’s no boundaries. Their words, it’s unbounded is actually the word they use. Across the board, tariffs, reciprocal tariffs. You know, at first it was over fentanyl and then maybe it was over something else. But now it’s just across the board. So some of the legal analysts today, they’re on TV and they’re saying, yeah, that’s that’s a problem. There really is, because this power, the president can’t seize the power from Congress and Congress can’t give the president this kind of power, even if he he if we interpret it the way the administration wants us to interpret it. Stay with me, folks. Stay with me. We always get to the bottom, but we have to explain it. And so even conservatives saying, yeah, that’s right. That’s right. That’s the way it is. That’s the conservative view. And the liberals, of course, are saying yes, because of political reasons. They want to kill the president’s tariffs. They don’t really give a damn. There’s a big problem with this analysis. First of all, it’s wrong. See, I don’t start at Supreme Court decisions. I started the Constitution. That’s where I go to the Constitution. We’ve had a lot of bad court decisions, including from the Supreme Court over the course of our history. Whether it’s. Dred Scott or Plessy versus Ferguson or Korematsu or a whole list of them and some great ones. But that’s not the point. What was the judiciary supposed to be? What we know, what the judiciary was supposed to be, because our framers weren’t quiet about it. They were quite outspoken about it, and they spent a lot of time talking about it and writing about it. So we’re Madison’s notes. And there are other notes, by the way, not just his, but his are the most comprehensive and accurate. We have the Federalist Papers. That was Madison, John Jay and, of course, Hamilton. And Hamilton and Madison were the most prolific, Hamilton being the most prolific in terms of the Federalist Papers. John Jay, I think, wrote six of them, and he became the first chief justice of the United States, by the way. Nominated by Washington and confirmed by the Senate. Well, what did they say? Ladies and gentlemen, I’ve studied Madison’s notes. I’ve studied the Federalist Papers. I’ve actually studied the state ratification papers that are available. Some are available on nine of the 13 states. You can look at some of the other writings, you can look at some of the things they actually did and did not do. And you know what they didn’t do? Two things. They didn’t give the courts the power. They had the final word. It’s not in there. In fact, judicial review is not in there now. Law school students, law school professors, former federal, this former federal that all the lawyers are listening to me right now. Go to houses, going to academia. You want to know why? Because this is how they’ve been mentally trained. This is what’s been beaten into their heads, especially with litigators, trial lawyers. This is what’s been beaten into their heads, especially with appellate lawyers. This is what’s been beaten in their head. You know, personal injury lawyers. I’m not talking about that. I’m talking about the guys that actually have to fight on constitutional grounds and so forth. Such been beaten into their heads. And yet they can’t cite a single statement made at the Constitutional Convention, any ratification convention or in the Federalist Papers. Not one place. Not one framer, not one ratified. Can they cite for their proposition? Not one. There are none. That’s not what this constitution created. And so and I discussed this about 48 hours ago, two days ago. But this is what our law schools panel of people this is what our professors pound in the people. This is what litigators have been trained to think. This is what they think. This is what they believe. But so what? Now, what does this have to do with anything? Has to do with everything in all these cases that are brought. But I want to focus on the tariffs in this decision. This court framed this as a separation of powers issue and the right. Separation of powers that the president doesn’t have these powers over Reason magazine, the radical libertarians, their laws, the same thing, separation of powers. The Constitution says this power belongs to Congress and that’s that. But Congress also passed this 1977 act called this Emergency Act that empowered the president, delegated the president certain fairly broad authority. If you read it, it’s pretty broad. Okay. So who are the litigants? They’re private litigants. The petitioners who brought the cases. They sued to prevent the tariffs and they argued that this power belongs to Congress. And so these judges take it up and they say, you’re right, this power belongs to Congress. Where did this court get the power to do that? You see the way the Constitution is constructed, in the way the framers of the Constitution believed this should have been handled is by Congress, not some court. That is, you have three branches of government all vying for power. These are congressional powers under the Constitution. The delegation was congressional to executive. If Congress wants to prevent the president from doing what he’s doing, Congress can prevent the president from doing what he’s doing. But Congress didn’t prevent the president from doing what he’s doing. Doesn’t matter because it’s a Republican majority in both houses. Well, Mark, why do you expect they’re not going to do anything? So what? Why you got to have Democrats in there all the time so they can challenge the president? That’s the great thing about elections in four years. You can elect a new president, two years, you can elect a new new house and one third of the Senate. So there is, in fact. A way for we the people. We the people. The show. Our view. Through our election and through our representatives. But when a court rules, we have no say in anything. It’s the litigants and that decision of the court imposed on the executive branch. How do we fix that? Well, you can appeal. I said, how do you actually fix that? Why did this court take this case? This court should have said, you’re in the wrong place, petitioners. You need to go to Congress. And if he can convince a majority of Congress to pass a law, then go ahead and do it. Now, the president might veto it and so forth and so on. I’m not going to get into the weeds. It doesn’t matter. What I’m saying is they’re in the wrong place under our constitutional construct, not under the way it is perceived and discussed today, but what the framers intended. The separation of powers battle is between the Congress and the president. Did that Congress bring a lawsuit? No. Did the Congress take any effective steps other than Rand Paul and Tim Kaine? I’ve looked at it, you know, huffing and puffing, passing a resolution. Did they take any effective steps to pass a law? Now did the House of Representatives take up the issue at all? No. And it’s congressional power that the court says it’s protecting. But the court has no say. If Congress wishes to protect its power, it can act or not. And yet. It did what it did. Not a newspaper in the country has discussed this, whether the court even had the authority. Not a single lawyer on TV that I watched even raised the issue because we reached the point any post constitutional in America that we’ve conferred all this power. Let me let me check that. That the courts have stolen all this power and we’ve accepted it as righteous as proper and constitutional when it’s not. When it absolutely is not. They wanted a council of judicial, a handful of the delegates when the Constitution was being written. It was rejected overwhelmingly, even though Madison was one of them who recommended it. A council of the judicial Meaning what? That they had some kind of council with a president, members of the court, who would oversee what Congress is doing. They said, no, no, no, no. Why? Why? Because that would violate separation of powers. And so this this case with tariffs is illustrative of all these other cases. I want to continue this when I return. I’ll be right back.

Segment 2
You just learned more. In about 20 minutes than they learned in law school or the people who’ve practiced law for 30 years even understand or comprehend what these courts are doing in every one of these cases and what this court is doing in particular on a separation of powers argument is it’s standing in the shoes of a Congress, a Congress that hasn’t acted in any respect. It hasn’t even moved an inch to challenge what the president is doing. And he uses the excuse of private petitioners to do it. So Congress certainly majority didn’t want to do anything but a three judge panel of unelected judges. They wanted to completely kill the terrorist program again. This is not about tariffs per se. So what is this? What do we call this? What do we call this when a court assigns to itself this kind of power to stand in the shoes of Congress, even though Congress isn’t even giving them a choose the stand it? What do we call this? More when we return.

Segment 3
Let’s take this just a little bit further and then we’ll move along. I know some people want to keep moving along, but there’s a lot of people who find this kind of discussion very, very compelling and very interesting. And that’s why they’re here. We do things a little differently. I have a different background. I didn’t. I didn’t go to school to be a radio host. I just became a radio host really more accidental than anything else. So separation of powers, that goes to the core of everything. And yet this court, in acting as it did, it violated separation of powers, has most of these other courts are doing right now. They claim to be standing up to the president, grabbing too much power when the courts are grabbing the power. There’s 677 federal district judges. I’m not counting this court. It’s separate, but 677. So as I said the other day, you have to satisfy almost every one of them in order to go through this gauntlet, because there’s going to be plenty of petitioners that is plaintiffs. So we’re going to bring one case after another after another informed shop. I mean, that’s crazy. That’s not our Constitution. So we’re living in a post constitutional period where we have federal district judge is doing what federal district judges are not empowered to do. We have a chief justice of the United States that basically said the Supreme Court has the final word. That’s not what the Constitution says. That’s not what a single framers of the Constitution said to anybody at the ratification conventions. And yet many of the lawyers out there will be scratching their heads and saying, well, Mark, what do we do? I just gave a perfect example in the tariff case. That court should have said, that’s not our authority. Go to Congress because we, the people, in the end, we have to consent to these things. We don’t like tariffs. Next time around, we vote for somebody who doesn’t like tariffs or we vote for members of Congress who will fight the tariffs. That’s all. Well, the president doesn’t have the authority to do this. That’s not clear. When you read the 1977 act, it’s not clear that he doesn’t have the authority to do it. There’s obviously two sides of that, maybe more. But who gets to decide in this case? Congress gets to decide. Well, they’re not going to. Well, then that’s up to them. But this is not a fundamental issue where the president of the United States says, guess what, I’m passing legislation. There you would have Congress fighting it and there the courts would have a legitimate role here. It’s a concoction. But the tariffs. Law. Not a terrorist like trade law 1977 conferring power on the president Power exercised. The president exercises that power and a court says, No, no, you’ve gone too far. But even though Congress didn’t. Father’s Day is around the corner. I don’t know what else to say. I am trying to persuade as many of you as possible to get your pre-ordered copy of On Power. This is all in there. All these things we talk about, whether it’s the Marxists in the Islamists, whether it’s separation of powers, whether it’s Paris, it’s all these things that are going on. Positive power, as I call negative power, as I call all these things that everybody else talks about at a superficial level. And they’re not even clear why they are. You’re going to learn all about these things. But I think your father, your husband, your grandfather, you’re going to find this as a fantastic gift. He read you a short passage related to what’s taking place. And if you notice over the past two weeks here and there, as we get into these issues, I go back to the book because it all goes back to power. And what’s interesting about it, too, is this book is not only philosophical and it’s heavily philosophical, it’s not only based on principle, it’s heavily based on principle, but it is applicable to everything that’s going on today, which is the whole premise of the point on power. We talk about Montesquieu. Why don’t we talk about this guy Montesquieu? Because Montesquieu was the most important philosopher to the framers of the Constitution. Locke was the most important philosopher to the revolutionaries. But when it came down to writing a constitution, they looked at several things, several individuals. But Montesquieu, as mentioned often. Including in the Federalist Papers. So it’s important to know. What did he say? And he wrote a fantastic book. Spirit of the laws that the framers, your Constitution read. Spirit of the law. What did he say? Let’s go to the book. He explained that democracy and autocracy are not free states by their nature. Political liberty is found only in moderate governments. And what do you mean by democracies, mob ocracy and autocracy? He would mean what we would refer to today as sort of this fascist Marxist kind of formulation. Political liberty is found only in moderate governments, but it is not always in moderate states. So he would have viewed the United States as a moderate government. But that doesn’t mean there’s political liberty here. It could mean you were losing it. It is present. Here you go. Only when power is not abused, but it has eternally been observed that any man who has power is led to abuse it. He continues until he finds limits. Who would think it even virtue. Has need of limits. So that one cannot abuse power. Power must check power by the arrangement of things. Power must check power. A constitution can be such that no one will be constrained to do the things that the law does not oblige him to do or be kept from doing the things the laws permit him to do. So Montesquieu further warns, apropos to this whole tariff debate. That should the distinct nature of these branches, the legislative, the judicial, the executive, should the distinct nature of these branches dissolve, dissolve? And transition from separation of powers to the concentration of powers. This is me writing. The result would be tyranny. Tyranny. Here’s what he said. When legislative powers united with executive power in a single person. Any single body of the majesty. There’s no liberty. Because one can fear that the same monarch or a Senate that makes tyrannical laws or execute them tyrannical. Nor is there liberty at the power of judging. Here you go. It’s not separate from the legislative power and from the executive power. If it were joined to the legislative power, the power over the life and liberty of the citizens would be arbitrary, whether judge would be the legislator. And that’s exactly what we have today. If it were joined to executive power, the judge could add the force of an oppressor. Also exactly what we have today. All would be lost if the same man or the same body a principle men either have nobles or of the people exercise these three powers that of making the laws, of executing public resolutions and that of judging the crimes or the disputes of individuals. And notice to Montesquieu observation that tyranny is not unique solely to despots, but it is also to be feared in the form of groups, bodies and mobs, even legislatures. And it is to be feared in. Democracy. We’re republic. We’re not going to get into that. That’s a separate issue. But what he would refer to as a democracy. So what did this court do, this trade court do? What are these lower federal courts doing? They are conducting themselves in tyrannical. Wait. And you will find almost no people commenting on TV who are former federal prosecutors who are professors. Almost no. Making this point. The point is right there in the spirit of the laws, the point is right there in the way our government’s set up. The point is right there in the Federalist paper. It’s right there. So much in life. I write in on power orbits around this word, this idea, this belief of power. And most of the discussion, to the extent it exists at all in an honest and coherent fashion, is in the form of generalities, sloganeering, demagoguery and the like, used by politicians and media and ideologues and academicians to manipulate, to confound, deceive, in which case power is used to control thought, discussion and language. That’s going on today to. I pulled three newspapers. The New York Post, I think, was The Washington Times and The Washington Post. Two good newspapers out of the three, the post being the worst. And not one of them. In writing this. Writing up their front page stories about terrorists. Now one of them. Brought up this issue of who has the power to do what. The court wrote an exquisite opinion saying that Donald Trump does not have the power to do what he’s doing. But who has the power to make that decision? Congress, because the power we’re talking about is in the Constitution. This applies to broadly, say, trade or commerce, not the courts. And Congress has done absolutely nothing about it. Nothing. Tariffs per say are not in the Constitution, not even in the clause that I’m talking about. But that’s okay. We know. We know that it incorporates tariffs. But the president isn’t seizing that power from Congress. In the Constitution. Constitution. The issue here is a 1977 statute passed by Congress. But in its legislative power delegating authority. To the executive because Congress itself does not have the ability. To execute it. So it’s delegating to the executive. Certain powers when it comes to. Trade. And its effect on national security, the economy and so forth on an emergency basis. So the debate flows from Congress is power. And then it’s delegation of certain emergency authority to the executive, to the president. And you have private petitioners who don’t like the tariffs. That’s fine. And they go in. It’s not like a contract case. With a federal court in a federal contract case would have authority. This is totally different than that. They’re saying, no, Congress doesn’t have the power to pass that law and give the president. The kind of power that he’s using today. First, they argue that they didn’t. Then they argue, even if they did, they can’t. And the court says, okay, you’re right. The court should have said, okay. Maybe you’re right, maybe you’re wrong. You’re just in the wrong place. That’s what Montesquieu would say. That’s what the framers of the Constitution would say. Seriously. Among others. Jefferson would be disgusted by this. And he wouldn’t be alone. Madison would be disgusted by this. They were disgusted by the Marbury versus Madison Madison decision in which the Supreme Court effectively seized. Ultimate judicial review and authority. And which is really what John Roberts claims and the other judges and justices claim is a brilliant decision. It wasn’t a brilliant decision. It changed our constitutional construct almost from the beginning. 1803. So if you really want to talk about the Constitution and what was intended and what the framers did and what the ratify did, I’m right. If you want to talk about what the courts have done, court after court, the precedent of the courts, then they’re right. And that’s how they’ve been trained and that’s their mindset and that’s that. And they’re wrong. I’ll be right back.

Segment 4
All right. We will move on. That was our constitutional lesson for the day. But I always feel an imperative to share, you know, these sorts of things with you folks. I think it’s very, very important. And and I’m going to continue to do that. And I hope you’ll grab your copy of On Power. Look. Many of you are thinking like the book doesn’t come out for two months. Leave me alone. It’s okay. I’m trying to encourage you to preorder it now so you get a better discount down the road and give it as part of your gift. On Father’s Day with a little no card in the card. I just think that would make for a really nice gift. And I know this is a book that you’re going to love, because if you’re listening to this program. And that’s the kind of book you’re going to like this one. There’s nothing like it anywhere else. Just saying, and I’m very proud of it because it’s now gone to the printer. So there are literally going to be printing books soon. They get in line behind other books at the printing press and so forth, but they’re going to be printing books soon. And as soon as I have some, I’ll start giving some of them away to callers and so forth. But fortunately, I can’t give half a million and a million of them away. So that will just be a tiny fraction of a fraction of a fraction of the percentage of the people. You folks out there. But I made sure the price was right and made sure the content was right. The timing the best we could towards Father’s Day and late summer for summer reading as well. So it’s just Amazon.com and I would try and get in the queue if I were you. You don’t want to. That’s fine. But I would encourage you to do it because I think you’ll get the best price that way. It’s very important. When we come back, we’ve got a number of issues. Number one, Letitia James colleague says razzle dazzle real estate queen abused her prosecutorial power. This is important. She’s getting her upcoming since she deserves it. We also have. America led its military industrial might wither while China’s is booming. This has been something I’ve been concerned about for years. We’ve talked about it here. Today’s the day. We had good economic news today. Personal income is up. Inflation has been down and it’s staying down. Gasoline prices are down. The problem is we need to expand the economy. We need economic growth. And that’s why the Senate Republicans need to do whatever they’re going to do. But we need to slash taxes as much as possible. We need to get that passed as soon as possible. If we don’t get it in place, we don’t get it passed. And it doesn’t resonate throughout the economy with a burst of growth, we’re going to lose the midterm election and we’re going to be bogged down in hell. We’re going to be bogged down in hell. I’ll be right back.