The conservative legal movement and Trump’s tariffs

A group of conservative scholars, lawyers, and former public officials — some anti-Trump libertarians and old-school conservatives, but some more MAGA-comfortable — have filed a brief arguing against the legality of Trump’s tariffs [gift link]:

A powerful sign that President Trump’s tariff-driven trade war is at risk came in a friend-of-the-court brief filed 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 last week with the president’s attacks on 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.”

As it happens, my senior seminar on the Supreme Court is reading Morgan Helton and Rachael Hinkle’s recent award-winning book about the role of briefs in Supreme Court decision making. Measuring the impact of briefs is the kind of question that poses issues of establishing causality that even the best social science can’t fully resolve. But Helton and Hinkle make a plausible case that while for many cases the ex ante preferences of justices are strong enough that briefs and oral advocacy aren’t going to matter, they can certainly matter on the margin — in cases where the preferences of the justices are weaker, where the policy impact of a particular decision is unclear, where political imperatives are conflicting or uncertain — where they can matter.

This would seem to be the kind of case where the signal sent by this kind of coalition could matter. Ideologically and strategically, there are a lot of competing considerations here — the tendency of Republican justices to defer to Trump, the question of whether the justices are the kind of pro-business conservatives who are pro-free-trade or have become MAGA pilled, the political interests of the Republican Party, the opportunity to show the Court’s critics that “major questions” doctrine isn’t pure bullshit. This is the kind of case where a bunch of friends of the Court’s majority could provide a permission structure for any of the Republican justices inclined to rule some or all of the tariffs unconstitutional.

That’s not to say that it will happen. It will be difficult for the Court to strike down such a central part of a presidential ally’s agenda (it’s more likely for shows of principle to happen in cases of less substantive importance.) But I think it’s an open question, and this certainly doesn’t hurt.