An Economic Discussion With Henry Elster

From the spacious KWTO studios, it's the Elijah Harshow, 93am 560, KWTO. Welcome back to KWTL, the beautiful day in southwest Missouri and Friday. The Supreme Court ruled 63 that Donald Trump had overstepped his executive authority and was not able to move forward tariffs. Of course, as we all know, he immediately, immediately... refiled tariffs under different code of the law. So let's dig into the nuances of this. Joining us now on the show, St. Louis attorney and GOP power broker, Henry Helster. Henry, welcome back to the show. Thanks. Thanks for having me. I don't know what the terminology is. You're kind of like the guy that people, like, if you want to run statewide and you go to St. Louis, you end up on the list of people they need to see. So what's the, what's the terminology there? I am just an attorney and help people who I think would be helpful for the state. You can call whatever you want. I guess I'm a little more. All right. Well, let's start off with question of the day to day, which actually should help for our listeners to have a better understanding of you in your lifetime, professionally or personally, what's the greatest award you've won? The greatest award that I have won. It's not an award per se, but I did. If you say being a dad, I'm hanging up. I wasn't going to say that. I was not going to say that. Listen, everybody, I understand that's very important. I'm a dad. But like these people, like, well, of all the awards, I'm like, but that's not an award. Like, let's not, let's not get smaltzy here. Yeah, yeah, yeah. I was going to say it's not an award. I did unanimously win a case as the appealing party in the Missouri Supreme Court. I do take, because as you know, and I think as we've talked about, they very rarely take case that. So professionally, I would point to that. Yes, that's my immediate de-jerk reaction several years ago. What was the name of the case if I wanted to go and do some light reading over the fireplace tonight? Sure, it was a case called Schlafly versus Corey. Okay. Professionally, I would point to that one, just because that's the pinnacle, at least in state court. I've had some federal cases, some federal appeals, but I've not been to the United States Supreme Court. Very difficult to get up for a lot of different reasons. It is. You know, it's pretty cool. If you argue in front of the U.S. Supreme Court, there is some stuff about, you get like this quill pan and people that go there, they display it in their law firm. It's a cool deal.

Yeah, absolutely. Every once in a while I'll see people who have like a U.S. Supreme Court bar admission certificate and their office just lawyers around here or anywhere else. And they've never argued up there. It's just something of a feathered avenue. Yeah, it really is. All right. So Friday, Supreme Court 6.3, they ruled Trump overstepped when he instituted tariffs. Now, you and I have talked more so in Missouri. about how the judiciary is constantly hamstringing from Missouri from moving forward on conservative deals. Give me your federal opinion on this on this tariff decision. Did the Supreme Court get it right or not? So here's what I would have to. It's a very long opinion. All of them together. I mean, it's pushing 200 pages. I think it's about 100. 180 pages, I think all of it. Just as Brett Kavanaugh's dissent was the longest of all of them. And I did read it. I'd want a little more time to digest that to see if that's correct. The majority opinion, though, I do think is right in its viewing of the law in terms of, I don't think it did include the tariffs. The lower courts agreed with that too. So that's important to frame the issue, too, is that the business owners who challenged this, they were basically, I think they made toys. toys online. And they were saying that these tariffs increased the cost of goods on them by like 40 to 50 times. So they were saying that was injured and they're like, well, you didn't do that. So basically what the legal issue was is there was a emergency act from the 1970s. I can't remember the full acronym for it. It was traditionally applied for wars or national emergencies originating outside of the United States. Something like blocking assets to a 9-11 terrorist organization or the Iran hostage crisis. And the issue was that President Trump declared an emergency under this act and he imposed tariffs because there was an influx of drugs. and there was hollowing out of our supply chain, he felt that was an emergency. That was an emergency, and that's what he imposed the tariffs on to regulate that. And I think I've heard you talk about it another way. A lot of people think when the arguments go to the Supreme Court, it's like a congressional argument. You're arguing policy issues, but this really turned down or turned on a few words in the statute. They focused on really what to, quote, regulate. the importation and exportation of products. And really the question was, does regulate include tariffs or not? And the majority said on this statute, we don't think when they say regulate that includes tariffs. So that's why the majority six judges, two of whom, Justice, Chief John Roberts, and Amy Coney Barrett and Neil Gorsuch were appointed by President Trump. So I think that is right. I don't think that regulate includes tariffs necessarily. Brett Kavanaugh's opinion was, well, historically, and it was very lengthy, and that's what I want to think about that more. The president historically has the ability to do that. That was his opinion. Clarence Thomas said, I do think basically the Congress gave the president the ability to enact tariffs with the statute. So he just totally disagreed.

He said that, well, I think Congress gave this to the president. He could do this. You know, it's funny because my understanding is, and maybe I'm wrong, and this was something the dissent said about the majority, and maybe he was overstating. But he basically, Kevin on his dissent was like, listen, this majority is agreeing that the president can stop all imports, but they're not giving him the ability to say, will allow the imports with a tariff. Is that right? As I read it more, he was saying under the historical application president, just basically how they have done tariffs and so on with the regulated, he thinks that's just something inherent in the president's authority to do that. Which is the question is like, well, why do you need the statute then if you didn't need to do that? And I don't think he had a great answer for that. That's why I wanted more time to think about that. Just because growing up, I always thought, you know, where do you draw the line between is this a revenue raising issue or is this a foreign affairs issue that we leave the president? And I think that's what his dissent, that tension between those two things. Trump was obviously a little miffed because. Several of three of the justices, I think, if my count's right, that he appointed, sided against him. Two of them. Two of them. Yeah, Coruscitch and Connie Bair right. Right. They both found against him and he was somewhat miffed about that. And I think what made it interesting for me is I've been saying for a while now and I actually doubled down on this on Friday. I think in June, either Samuel Alito or Thomas or both are going to announce their retirements. And I say that for a variety of reasons. Both are in their late 70s. I'm sure there's been some backdoor conversations that, hey, we may lose the Senate in November. And, you know, Thomas will be the second longest thing of justice in history. Samuel Alito's got a book coming on the fall. They both have, like, there's some checkmarks on why they may not come back and why now would be the right time to replace them. And so the question is, if Trump is miffed, if two of his three justices just found against him, does it... When he's picking his next justice, does that enter his brain of, I want somebody that is so loyal to me that whenever I'm gone, I know they'll still be fighting in my favor. Oh, I'm sure it absolutely will. And who knows what those private interviews with the White House and any prospective candidate is going to be like. And I'm sure, it depends on the candidate is. If it's a candidate who is written a lot, who's an existing judge, who has written a lot of opinions, you can kind of look at what he or she has written. And basically make projections from there. If it's someone who really hasn't practiced or been a judge, I should say, it's harder and you've got to kind of got to extract those answers. I don't know what types of answers they give in that. I mean, as you know, though, when it gets to the Senate hearing, you almost get no meaningful answers.

from these nominees. They'll talk about historical cases, but they're very rarely ever going to, and they can't say how are we going to rule on a particular case for a lot of different ethical reasons. So yeah, I think that's going to be even a hot and button issue for him. How would you rule on this or how would you rule on that? uh let's let's play this out just a just a minute first of all and we're going to come back to trump's potential point he's but i want to start with trump immediately schedules a pro conference friday after he's like i'm going to institute 15% tariffs on something else i assume it's going to draw lawsuits i assume it's going to go back to the supreme court does does trump know that this is going to get struck down does the supreme court strike it down uh like what's the show game going on here I think his approach, and this is how he's been really his whole second term, to a large extent his first term, he's not going to back down, going to double down. There is going to be another lawsuit on it. I am not familiar with this other law that he has relied on to do that. I just question whether that's going to be that helpful because of that truly authorized to why didn't you do it first? I don't know if it's also done just for negotiation purposes because one thing we haven't talked about is, and I don't think the court's going to have an answer to this or really anyone immediately, is the amounts of money that were collected wrongfully now, apparently how those monies are going to be returned and so on. So I don't know. Yeah, and that was not addressed. It was not addressed in the opinion. No, well, I don't think that's the thing from the court. I mean, the courts really only their decision is this law does it cut the must or not. Is it legal or not? But now the fallout of it where you basically had this revenue collection procedure, which according to the court should have never been enacting in the first place, what do you do with the money that was going to return? So I was reading articles with businesses are you going to apply for. And I'm like, well, how do you quantify that? And not only that, but also the businesses are then reaping windfall because they pass the cost along to their consumers. The consumers paid an increased price. I assume they're not going to refund the money. They're just going to pocket the difference. Yeah, I make a prediction he will in some fashion keep passing tariffs until basically his presidency is over. And I, depending who the next president is going to be up to him or her on what to do. But I think it's going to continue to get challenging court. I know, you know, the other thing that was kind of telling, too, they tried to get some congressional approval. for this in the big beautiful bill and it didn't so i you know that's always an option to go back to congress but it's so difficult yeah they're not even they've essentially i think it was either trump or johnson was basically just like we're done legislating like there's nothing more we this the one big beautiful bill was our one big thing we're to do and we're not going to do another thing for the next week which you know as a is a voter you guys are so worthless i mean come on yeah

Okay, let's go, let's go then. Let's jump forward. Obviously, Donald Trump, he's going to keep doing this. I think, what's your thought? Samuel Alito Thomas, either both, which one's gone? Thomas strikes me as a guy. I think he is the longest serving judge. He will be the second longest serving by June. I think last year in June, he was the ninth, and it's like every month there's like one more he's kicking on. Of the current judges, he's up there. I think he's been there at the longest in terms of seniority on that. The Samuel Alito thing seemed plausible to me. He seems a little more. willing, and I don't have any special information or knowledge on this. Oh, you can tell us, you could say, I talked to Martha, this is what's happening. He seems a little more willing to resign and let someone else take his seat in order to do that. I don't think the Senate is going to flip over. I think that has a lot of the lower likelihood of happening compared to say the House, much, much lower happening. But of the two, I think he would probably be the one. So let's say. First of all, I've said for two or three, ever since Trump got elected, I was like, Thomas is going to retire. in in 2026 for a couple reasons three reasons actually number one at that point it'll be the second long serving number two he doesn't know if the republicans will hold the senate likely i mean it's it's possible they do but it's not going to be a guarantee and number three um Thomas knows that he wants to be replaced by Republicans. I think Samuel Alito does too, but, you know, listen, like, who knows if that happens? And Thomas has clearly checked a ton of boxes. Either way, let's say one of them's gone. Trump just appointed Justin Smith to the Eighth Circuit. He actually, he had a bevy of appointments in the last, I don't know, 72 hours, some in Montana. They were around the country, did several. And then I saw one of the... Judges in Ohio, I think on whatever circuit he's at, take senior status. So we're seeing some of this judicial turnover start to happen. Give me your inside the building knowledge. Who's sort of in the front runner class for this Supreme Court seat if one opens? Well, you know, you can point them because there was the one guy out of Pennsylvania. I can't remember. I went to Justice Gorsuch instead. I was thinking of him. I know Judge Sykes. I think she's in the Seventh Circuit. She was in that running out of St. Louis. Diane Sykes. And the problem with Diane Sykes is her husband is one of the biggest critics of the press. I don't think she's got a real path to it. I think it was Hardiman. Yeah, Hardiman's certainly been mentioned.

He was mentioned that, though, you know, they really want, he's, he's, he's, he's, you know, he's going to be early 60s now, though. I really think they're going to, looking for the late 40s. One of their 50s. Yeah. Or, or you didn't get late 40s. I don't know if we've had anyone in the late 40s, ever. Well, how old was Thomas when he got picked? He would probably be the youngest. I think he was the youngest in history. I think so, yeah. They've talked about Judge Grunder, who is in the Eighth Circuit. He was a U.S. attorney, though I think he's going to run into that similar age. issue and that he might be a little older, even though there's not an age limit. They want to appoint someone up there who's going to be up there for decades and have a chance to transform the policies because we've talked about the support. The U.S. Supreme Court, ultimately they're going to have a say pretty much on every law or even executive action. Like these tariffs, they have the final say from same-sex marriage. Totally. And that meant rights. It doesn't become legal really until they say it on that. So, you know, there's a good chance of someone who's not even on the radar. It could be someone. There's a couple people from the Fifth Circuit. I know Andrew Oldham is on the Fifth Circuit. He's a youngish guy. He clerked for Samuel Alito. He's got all the, you know, did the University of Virginia, Cambridge, Harvard. he's got all the credentials and being an Samuel Alito clerk, you know, I always wonder, do the, do the Supreme Court judges, do they sit down with the president, like, listen, I will consider retiring, but I want it to be one of my clerks. So I want to be this per, like, is that conversation? You've got to assume that happens. I think it does that because Justice Gorsuch, when he took over, he clerked for, I believe it was Robert F. Kennedy Jr.. Yeah. You know, you've got a lot of former clerks up there in John Roberts, clerk for Enquist. Yeah. Up there. So there's a big, you know, there's a big turn over. What I will rule out, though, because everyone, every once in a while, people always, like, mention a senator, like, Cruz or even Josh Hawley. Well, I was going to get to that in the Senate? Because what was it? I mean, in the, was it Earl Warren who was a senator for, like, that we had this in the past that, that people have gone from the U.S. Senate to the Supreme Court? I think it's too difficult, I just think it's too difficult in order to do that. It's, I, it was. Well, I think because when you are a senator, your views are a lot. Like, it's not like John Jay. It's a very different era from the 18th century at all. Like, I couldn't imagine. I mean, think of two things. Like, these Supreme Court hearings have become so contentious, increasingly so. And it was Hugh. Hugo Black is who I was thinking of. Hugo Black was a senator who went to the Supreme Court. And it was one of the big ones. Okay. But I can't imagine someone like Ted Cruz with the amount of just quotes he has out there about any number of things sitting through a Senate hearing. I think they're going to want.

someone who's not seen as too political, even though it is a very highly political process. You mean the president won't watch that machine is that? Okay. The White House. Yeah, the White House. I, and that's, I mean, when I don't think before the nominees, and I think to this day, I don't think a lot of people would have known who what Neil Gorsuch was. Probably still for this day a lot of people. But, but if you ask who, you know, Josh Ali is, Ted Cruz is, you're going to a lot more people are going to know. You know, I'm. And he's become a big case of water, but like Mike Lee, Mike Lee does, he's sort of behind Cruz and Holly as far as bombastic, but he's also, he's in that hardcore right wing, he's a senator, he's an Kay Ivey Leagueer. If there was one from the Senate, I think I'd bet on him. Yeah, I don't think any of these guys have an interest though. It's a very different. Oh, come on. A lifetime appointment? How could they not? I think they like the camera too much. I think they like it. I just say they like legislating too much. And I think the last that just came to me because I think they're in the George W. Bush. administration. I think it was Harriet Myers. Oh, who got shot down. I think it was just like his lawyer. She was. She was the solicitor general. He picked her. Now, I've got this whole conspiracy theory because I think Bush wanted to pick Samuel Alito anyways. And he picked Harriet Myers. And everybody freaked out because she'd never tried a case. And she was. failing the murder boards. And then he's like, look, y'all wanted me to pick somebody diverse. I picked a female. You shot her down. I'm going to pick another white male because they already picked John Roberts. I think there was, I think Bush was being smart like a fox and he wanted Lido from the get-going that one. I could be wrong. It could be that. You know who would be a sleeper was? I guess as we're talking about this is Emil both. who is actually on the Third Circuit now. And so that's, man, that guy, and listen, if Trump wants to pick somebody, his personal lawyer, yeah, that I, that, yes, I think he would know what he's good. He's the one guy, though, of all the, like, here's a deal, on the circuit court of appeals, it would be hard for me to pick a person. 933 and AM 560, KWTO, breaking news.

a blue alert after a Christian County Sheriff's Deputy was shot to death Monday afternoon near Highlandville. The shooting occurred around 4 p.m. Monday, the driver of a white 2001 Chevy extended cab truck with a Missouri license plate of 9M.GX. 36 left the scene headed southbound on Highway 160 from Highway HH in Christian County. The truck is also described as a silver brush guard, rusted roof, black body trim with tinted rear windows and a three-ball hitch. The driver has not been identified. Anyone who sees the vehicle is urged to call 911. A blue alert is issued by the highway patrol when a law enforcement officer has been shot in the line of duty. Once again, the national... Excuse me. Force a habit. The Missouri State Highway Patrol has issued a blue alert after a Christian County Sheriff's deputy was shot to death Monday afternoon near Highlandville about 4 p.m. And they are looking for the driver of a white 2001 Chevy extended cab truck. The license plate is 9M. GX36. You're asked to call 911 about that. We'll now return you to regular programming. We will keep you up to date on the situation as it develops with more information. On 93.3 and AM 560, KWTO, I'm Jeff Boggs. 93.3 and AM 560, KWTO, breaking news.