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Taking Part in the Landmark Tariff Case

Several months ago, I helped organize a broad, bipartisan coalition: of former U.S. senators, a retired attorney general, retired federal judges, national-security officials, and leading legal scholars from across the ideological map to file a friend-of-the-Court brief in Learning Resources v. Trump and Trump v. V.O.S. Selections, Inc. We asked the Supreme Court to strike down the 2025 tariff program as an unlawful grab of legislative power. This week, the Court did.

Our purpose was never partisan. We challenged the President's proclamations not for what they did, but for how they were done—unilaterally, without congressional authorization, in defiance of the Constitution's basic structure. The case became one of the most consequential separation-of-powers fights in a generation. Now it is one of the most consequential victories.

The Republic on Trial

Process matters. In our constitutional system, how we act often matters more than what we achieve. Procedure disciplines passion. It converts raw power into something accountable. When we abandon process, we lose more than clarity. We lose consent.

Tariffs imposed this way teach citizens that decisions reshaping their lives can be made by one man with a pen while Congress sits on its hands. That is not how constitutional self-government works. It is how it ends.

A rare constellation of legal power

“The brief unites big-name constitutional law scholars across the political spectrum in a way I have rarely seen.” ~ Ilya Somin

You do not often see Steven Calabresi and Harold Koh signing the same legal document. Calabresi co-founded the Federalist Society and co-wrote the definitive treatise on the unitary executive. Koh is the country's foremost authority on foreign-affairs law and served as State Department Legal Adviser under Obama. They disagree about almost everything. They agreed about this.

Also on the brief: Michael McConnell, a leading scholar of executive power; Richard Epstein, the preeminent libertarian legal theorist; Alan Sykes, a pillar of international trade scholarship; and Gerard Magliocca, one of the most prolific constitutional historians writing today.

Former Attorney General Michael Mukasey joined former Senators George Allen, John Danforth, and Chuck Hagel (also a former Secretary of Defense), along with retired Seventh Circuit Judge John Tinder and senior policymakers Peter Wallison and Philip Zelikow. On appeal, McConnell began representing plaintiff V.O.S. Selections directly as lead counsel. Professor Alexander "Sasha" Volokh joined the brief as an amicus curiae.

Whatever else divides these people, they share a conviction the brief put plainly: the endurance of the American Republic depends on "the faithful preservation of its constitutional structure."

Why IEEPA cannot carry this load

The administration's legal foundation was the International Emergency Economic Powers Act, a 1977 statute built for sanctions—freezing assets, blocking transactions, cutting off adversaries. Congress did not put tariff authority in that law. The text uses words like investigate, regulate, nullify, prevent, prohibit. Not tax. Not duty. Not impost. When Congress wants tariffs, it says so.

The evidence is right there in the statute books. Section 122 of the Trade Act of 1974 lets a president impose a 15-percent surcharge for 150 days, with required findings, tight caps, and a hard end date. Those careful limits reveal exactly how Congress thinks about presidential tariff power: narrow, bounded, and temporary. Reading IEEPA as a blank check would reduce Section 122, and several other trade laws, to dead letters.

When President Trump warned that handing tariff authority back to Congress would leave "hundreds of politicians" arguing for weeks, he was, without knowing it, quoting the Framers' logic. They put the taxing power in Congress because they wanted debate. They wanted delay. Federalist No. 58 explains why. It was not a design flaw. It was the whole point.

The stakes

An “emergency” should sound like sirens—sudden, unusual, extraordinary. The rationale offered here cites long-standing conditions: trade deficits “for generations,” offshoring “since the late 1990s,” industrial policies “between 2001 and 2018.” Serious issues, yes. Emergencies, no. If everything chronic becomes an emergency, then nothing does. The exception swallows the rule.

What Counts as an "Emergency"?

“Emergency powers would tend to kindle emergencies.” ~ Justice Robert Jackson, Youngstown Sheet & Tube

An emergency is sudden. It is unusual. It catches you off guard. The administration's rationale pointed to trade deficits stretching back "generations," offshoring that began "since the late 1990s," and industrial policies in place "between 2001 and 2018." Real problems, some of them. But not emergencies. If a chronic condition qualifies as an emergency, the word has no meaning at all. The exception swallows the rule, and the rule disappears.

Accepting that logic would invite the same move from every future president. Why not claim emergency authority for any policy goal that feels urgent and consequential? Once you say yes to taxation by decree, it becomes very hard to say no the next time.

The Decision and What It Reveals

Justice Gorsuch closed his opinion with a paragraph worth reading twice.

That paragraph belongs in every civics class in America.

To understand what the Court did, it helps to remember what came before. During the Biden administration, the president announced a sweeping student loan forgiveness plan—up to $10,000 canceled for most borrowers earning under $125,000 a year, up to $20,000 for Pell Grant recipients, a projected price tag of $430 billion. He pointed to an emergency-relief statute as his authority. Six Republican-led states sued, arguing that law was built for targeted relief in specific crises—never a wholesale rewrite of the country's student loan system. The Supreme Court agreed. Biden had overreached.

With the lead counsel Michael McConnell (left) and Neal Katyal (right), who provided oral argument at SCOTUS.
Now Trump. Invoking a trade-sanctions statute, he claimed the power to impose whatever duties he chose, against whomever he chose, at whatever rate he chose. His opponents argued the text authorized nothing so broad. The Court agreed again. Trump had overreached.

Note the parallel. A president finds a narrow statute. He reads into it unlimited power. The Court says no.

That should settle things. But watch who voted how.

Of the nine justices, only three ruled the same way in both cases: Chief Justice Roberts, Justice Gorsuch, and Justice Barrett. Every other justice, liberal or conservative, flipped depending on who sat in the White House. The so-called principled wings of the Court traded places as soon as the party affiliation changed.

The same happened everywhere else. Many commentators who applauded the student loan decision are furious about this one. Many who condemned Biden now insist Trump's situation was different—unique, necessary, justified by circumstance. It was not different. The legal question was the same question.

If you found yourself on opposite sides of those two cases, sit with that for a moment. I say this not to accuse anyone but to press the point: constitutional principles do not travel with one party or one president. They are not costumes. The separation of powers either holds across administrations or it holds for none of them. A Congress that can be bypassed by a president you admire can be bypassed by one you despise.

Why I Did This

None of this is abstract to me. I organized and filed an influential amicus brief in this case because I think the separation of powers is worth defending no matter who benefits and no matter who is inconvenienced. My position has never tracked the White House. It tracks the text, the structure, and the principle. When a president, any president, claims authority Congress never granted, someone has to say so in court. I said so. These are the reasons.

The constitutional order does not favor Republicans or Democrats. It favors no policy and no election result. It demands only that the people's representatives, not a president acting alone, make the laws under which we live. Three justices held that line in both cases. The rest did not.

Ask yourself which kind of justice you want sitting on that Court. Then ask yourself which kind of citizen you mean to be.

Legal documents and summaries

  • Supreme Court Opinion in Learning Resources, Inc., et al. v. Donald J. Trump, et al. and Donald J. Trump, et al., v. V.O.S. Selections, Inc. in the U.S. Supreme Court
  • Amici curiae brief in Learning Resources, Inc., et al. v. Donald J. Trump, et al. and Donald J. Trump, et al., v. V.O.S. Selections, Inc. in the U.S. Supreme Court
  • Amici curiae brief in Learning Resources, Inc., et al. v. Donald Trump et al. in the U.S. Court of Appeals for the D.C. Circuit.
  • Amici curiae brief in Learning Resources, Inc., et al. v. Donald Trump et al. in the U.S. Supreme Court.
  • Amici curiae brief in V.O.S. Selections, Inc., et al. v. United States et al. in the U.S. Court of Appeals for the Federal Circuit.
  • Amici curiae brief in California v. Trump in the U.S. Court of Appeals for the 9th Circuit.
  • Amici curiae brief in V.O.S. Selections, Inc. v. Trump in the Court of International Trade.
  • Amici curiae brief in Learning Resources v. Trump in the Dist. Court for D.C.
  • Amici curiae brief in Emily Ley Paper d/b/a Simplified v. Trump in the N.D. of Florida, but transferred to the CIT.
  • Amici curiae brief in California v. Trump in the N.D. of California.
  • V.O.S. Selections, Inc. v. Trump Wikipedia entry.

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