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THE LEGAL BRIEF THAT TORCHED TRUMP’S TARIFF POWER GRAB  
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Adam Liptak
June 2, 2025
The New York Times
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_ A coalition including leading figures on the right filed a fiery
brief with the court that rebuffed most Trump tariffs. The tariffs are
"taxation by proclamation" and do violence to the Constitution, the
brief argues. One judge cited it eight times. _

Trump showing a chart with his "Liberation Day" tariffs, public
domain

 

A powerful sign that President Trump’s tariff-driven trade war is at
risk came in a friend-of-the-court brief
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in April by a coalition that included many prominent conservative and
libertarian lawyers, scholars and former officials.

The brief was also a signal of a deepening rift between Mr. Trump and
the conservative legal movement, one that burst into public view
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week with the president’s attacks
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the Federalist Society, whose leaders helped pick the judges and
justices he nominated in his first term.

Among the people who signed the brief in the tariffs case was Richard
Epstein, who teaches at New York University and is an influential
libertarian legal scholar.

“You have to understand that the conservative movement is now, as an
intellectual movement, consistently anti-Trump on most issues,” he
said.

Others who signed the brief, filed in the U.S. Court of International
Trade, included Steven G. Calabresi, a founder of the Federalist
Society; Michael B. Mukasey, a former federal judge who served as
attorney general under President George W. Bush; and three former
Republican senators — George F. Allen, John C. Danforth and Chuck
Hagel. The brief was signed by liberals, too, including Harold Koh, a
former dean of Yale Law School.

“The brief unites big-name constitutional law scholars across the
political spectrum in a way I have rarely seen,” said Ilya Somin, a
law professor at George Mason University and a lawyer for a wine
importer and other businesses that sued over the tariffs.

“I never would have expected to see Richard Epstein, Steve Calabresi
and Harold Koh all on the same brief on a major issue,” he said.
“But here they are, together, opposing ‘taxation by
proclamation.’ Donald Trump brought them together.”

The brief was prepared by Michael W. McConnell, a former federal
appeals court judge appointed by Mr. Bush who teaches at Stanford Law
School, and Joshua A. Claybourn, a lawyer and historian. It said Mr.
Trump’s program did violence to the constitutional structure.

“The powers to tax, to regulate commerce and to shape the nation’s
economic course must remain with Congress,” the brief said. “They
cannot drift silently into the hands of the president through inertia,
inattention or creative readings of statutes never meant to grant such
authority. That conviction is not partisan. It is constitutional. And
it strikes at the heart of this case.”

The coalition filed a very similar brief
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a second case, too, in the Federal District Court in Washington. On
Wednesday, the trade court
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the challengers
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On Thursday, the district court judge followed suit
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citing the supporting brief eight times.

Professor McConnell said that the prominence of the amici curiae —
the friends of the court — who signed the brief sent a message.

“I TRY TO MAKE THE SUPREME COURT ACCESSIBLE TO READERS. I strive to
distill and translate complex legal materials into accessible prose,
while presenting fairly the arguments of both sides and remaining
alert to the political context and practical consequences of the
court’s work.” Supreme Court reporter Adam Liptak
Learn about how Adam Liptak approaches covering the court.
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“Our hope is that the identity of the amicus parties will signal the
gravity of the situation,” he said. “All are concerned about
executive usurpation of control over taxation of trade, which the
Constitution explicitly vests in Congress.”

Professor Koh, who served as a State Department official in the Obama
administration, said some issues transcend partisanship.

“Despite our political differences, the amici easily agreed, as
lawyers, that the president has exceeded his delegated statutory
authorities,” he said. “By unilaterally imposing unlimited tariffs
on worldwide goods, he has lawlessly usurped Congress’s exclusive
powers to impose taxes and duties and to regulate foreign commerce.”

The brief said it took no position on the wisdom of the tariffs.

“Amici do not appear to defend or oppose any particular trade
policy,” it said. “They file this brief because they believe the
Constitution draws bright lines between legislative and executive
power — and that those lines are being blurred in ways that threaten
democratic accountability itself.”

Professor Epstein said he had been honored to sign what he called a
magnificent document, one that boiled the dispute down to its essence.

“This case is not close,” he said. “There are cases that are
vastly important that are easy.”

Other scholars have offered more cautious assessments. Jack Goldsmith,
a law professor at Harvard who was a Justice Department official in
the Bush administration, recently wrote
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the legal issues in the case were “hard and close.”

Karoline Leavitt, the White House press secretary, went further.
“The president’s rationale for imposing these powerful tariffs was
legally sound and grounded in common sense,” she said at a briefing
last week.

An appeals court has temporarily paused
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trade court’s ruling and will consider whether to extend that
pause in the coming days
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There is little doubt that the case will reach the Supreme Court, and
soon.

When it does, the justices will have to grapple with two doctrines
dear to the conservative legal movement, both of which would seem to
cut against Mr. Trump’s understanding of his powers.

One, the nondelegation doctrine, says that Congress may not transfer
unbounded legislative powers to the executive branch. The other, the
major questions doctrine, says Congress must authorize in plain and
direct language any sweeping executive actions that could transform
the economy.

The friend-of-the-court brief said those doctrines, grounded in the
separation of powers, required courts to reject Mr. Trump’s program.

“This case presents the court with a choice — not between
competing trade policies, but between rival understandings of
constitutional governance,” the brief said. “One preserves the
balance the framers struck, requiring that major economic decisions
receive explicit legislative authorization. The other would allow the
executive to unilaterally remake the nation’s commercial framework
under vague and general statutory language never intended to support
such action.”

“The court,” the brief said, “should choose the former.”

_Adam Liptak [[link removed]] covers the
Supreme Court and writes Sidebar,
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developments. A graduate of Yale Law School, he practiced law for 14
years before joining The Times in 2002._

_Get the best of the New York Times
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newsletter. Gain unlimited access to all of The Times with a digital
subscription [[link removed]]._

* U.S. Constitution
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* Taxation
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* Tariffs
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