On Thursday, one day after President Donald Trump announced sweeping new tariffs, what appears to be the first lawsuit challenging those tariffs was filed in a federal court in Florida. That alone isn’t particularly surprising. The tariffs are expected to drive up the costs of goods in the United States, and have already sent the stock market into a nose dive. That means that a lot of aggrieved potential plaintiffs have standing to challenge the tariffs in court.
What is surprising is that the plaintiff in this particular case, known as Emily Ley Paper v. Trump, is represented by the New Civil Liberties Alliance (NCLA), a right-wing legal shop that previously backed Trump’s efforts to expand executive power.
NCLA is part of what appears to be a growing effort among prominent right-leaning intellectuals and commentators to challenge Trump’s tariffs.
At the Volokh Conspiracy, an influential right-libertarian legal blog, George Mason law professor Ilya Somin is actively recruiting plaintiffs to file a similar lawsuit challenging the tariffs (Somin has long been a principled libertarian critic of Trump). Ben Shapiro, the one-time Breitbart writer who is also a lawyer, criticized Trump’s tariffs as a “massive tax increase on American consumers,” and has gently advocated for Trump to change course. Richard Hanania, a writer best known for his baroque criticisms of “wokeness,” responded to a pro-Trump member of Congress’ praise of the tariffs with “we’re ruled by morons.”
All of this matters because conservative-minded judges, including the six Republicans who dominate the Supreme Court, are often highly responsive to public statements from conservative legal and media elites.
During President Barack Obama’s first term, for example, liberal lawyers and legal scholars were often flabbergasted by how quickly conservative judges rallied behind a weak legal case against the Affordable Care Act — eventually persuading four Republican justices to vote to repeal the law altogether. Their mistake — one I made as well — was assuming that judges would be persuaded by the kind of careful, precedent-focused legal reasoning that earns you top grades in law school, rather than by what they were hearing from legal and political elites that they viewed as ideological allies.
As Yale law professor Jack Balkin wrote about that error, a legal argument can “move from off the wall to on the wall because people and institutions are willing to put their reputations on the line and state that an argument formerly thought beyond the pale is not crazy at all.” In the end, many judges cared more about what they heard on Fox News or at an event hosted by the Federalist Society, than they did about what the Supreme Court said in Gonzales v. Raich (2005).
If you take the Court’s recent precedents seriously, there is a very strong legal argument against the tariffs
At least on the surface, anyone who wants to challenge Trump’s tariffs faces a far more favorable legal landscape than Obamacare opponents faced in 2010. During the Obama and Biden administrations, Republican justices fabricated novel new legal doctrines, such as the so-called major questions doctrine, in order to strike down Democratic policies they deemed too ambitious. They also threatened to revive old, once-discredited ideas like the “nondelegation doctrine,” which was used to frustrate President Franklin D. Roosevelt’s New Deal.
Both of these doctrines are grounded in the idea that the judiciary has broad power to strike down policies established by the executive branch of the federal government, even if the executive can point to an act of Congress that explicitly gives them the power to do what they want to do.
The primary reason to be skeptical that the Supreme Court will actually apply one of these doctrines to strike down Trump’s tariffs is that the Republican justices’ rollout of their new approach to executive power has been so partisan that it is hard not to suspect that they are acting in bad faith.
The same six Republican justices who said that Democratic President Joe Biden’s student loan forgiveness program was an egregious power grab, despite the fact that that program was authorized by a federal statute empowering the executive to “waive or modify any statutory or regulatory provision applicable to the student financial assistance programs,” also said that Republican President Donald Trump is allowed to use the powers of the presidency to commit crimes.
Similarly, the best legal argument against Trump’s tariffs is rooted in the Court’s major questions doctrine, which holds that judges should cast a skeptical eye on executive branch actions “of vast ‘economic and political significance’” According to the Budget Lab at Yale, the tariffs are expected to reduce the average American household’s real annual income by nearly $3,800. That seems like a matter of vast economic and political significance.
But the short history of this major questions doctrine would give any serious legal scholar great pause. The idea that programs of “vast economic and political significance” are suspect was first articulated in Utility Air Regulatory Group v. EPA (2014), in order to criticize a hypothetical Environmental Protection Agency regulation that was never enacted, that no one ever proposed, and that likely would have shut down all construction of hotels in the United States if it had ever actually existed. A year later, the Court used the major questions doctrine again to repudiate an imaginary health regulation that would have collapsed the individual health insurance markets in most states.
Having used these strawmen to invent a completely new legal doctrine that appears nowhere in the Constitution or in any statute, the Court let this major questions doctrine lay dormant for Trump’s entire first term — only to revive it with a vengeance once a Democrat became president. To date, the doctrine has only been used to strike down actual, rather than theoretical, policies during the Biden administration.
One of the most important questions looming over Trump’s second term is whether a Republican Supreme Court will apply the same rules it invented to thwart Democratic administrations to Trump and his subordinates. We do not know yet how the justices will answer this question. But, as Balkin writes, the answer is likely to be shaped by how elite conservatives in the legal profession, the media, and in elected office urge the justices to behave.
One of the most important questions is whether elected Republicans join groups like NCLA or commentators like Shapiro in criticizing the tariffs. “What really accelerates the movement of constitutional arguments from off the wall to on the wall is neither intellectuals nor social movements,” Balkin wrote about the Obamacare fight. Instead, the most important factor is often what Republicans in political office want the courts to do.
“When establishment politicians — who, after all, have to stand for election and don’t want to be thought out-of-touch to their constituents — get behind a constitutional argument, they often help move it forward quickly,” Balkin wrote.
For now, it remains to be seen whether members of Congress, governors, and other top elected Republicans will speak out against the tariffs once their constituents start to experience the pain of higher prices. But if you are hoping to see these tariffs go away, you should take the fact that the first spear targeting the tariffs was thrown by a prominent right-wing legal shop as a very positive sign.
