Why We’re Joining the Legal Fight Over Trump’s Tariffs
Wall Street Journal
By Joshua Claybourn
April 27, 2025 5:16 pm ET
The taxing power belongs to Congress, which didn’t surrender it in the 1977 law he cites.
I joined a broad coalition of leaders—including former U.S. senators, retired federal judges, a former U.S. attorney general and pre-eminent constitutional scholars—in filing a friend-of-the-court brief last week in V.O.S. Selections v. Trump. Our brief urges the U.S. Court of International Trade to strike down President Trump’s 2025 tariffs as an unlawful and unprecedented seizure of legislative power. It challenges Mr. Trump’s sweeping proclamations not because of what they do but how they were done: unilaterally, without congressional authorization, and in defiance of the Constitution’s structure.
In April, Mr. Trump imposed a 10% baseline tax on all imports and sharply higher duties on goods from many countries. Then, in a series of whiplash tweaks, he shifted the numbers. These measures weren’t authorized by Congress. They weren’t part of a debated trade bill. They were declared unilaterally by presidential proclamation.
Tariffs are taxes, and under the Constitution, they must be enacted by Congress. Mr. Trump claims authority under the International Emergency Economic Powers Act of 1977. But that law allows the president to freeze certain foreign assets in times of national emergency, not to impose new taxes on Americans. It was a post-Watergate reform crafted to limit executive power, not expand it.
Yet here we are, in a strange moment of constitutional drift. Trade deficits dating back to the 1990s are labeled “emergencies.” A decades-old global economic pattern is rebranded as justification for executive taxation. The president signs a proclamation and the machinery of taxation begins—without hearings, votes or the consent of the people.
Conservatives have spent decades preaching the importance of limited government, checks and balances, enumerated powers and the rule of law. We have insisted that means matter—that you can’t govern well by ignoring the architecture of the Constitution. We rallied against executive overreach under President Obama, rightly pointing out that even noble goals don’t justify unconstitutional methods. What are we to make of this moment, when a president supposedly from our own ranks casts aside those same constraints?
Some will be tempted to shrug. The tariffs are popular in certain quarters and Mr. Trump is strong-willed. But that’s exactly the problem. We’ve grown accustomed to Congress punting hard decisions to the executive branch, and to presidents treating ambiguous statutes as blank checks. We’ve lost the soul of republican government, the idea that sovereignty resides with the people, and that power must be mediated by institutions designed for consent and deliberation.
Congress has been steadily hollowed out by its own cowardice and by presidents eager to rule through fiat. The legal tools are always the same—broad emergency powers, vague statutory phrases, delegated discretion unmoored from clear standards. Each time it happens, the boundary between legislative and executive power fades a little more.
The Constitution doesn’t enforce itself. It depends on citizens and institutions willing to defend its boundaries—even when doing so is politically inconvenient. That’s why this legal challenge matters. It asks the courts, and the country, a simple question: Can the president tax the American people without clear and limited authority from Congress? To say yes would be to accept taxation without representation.
In Federalist No. 48, James Madison warned that the erosion of liberty rarely comes by force. More often, it slips away through quiet encroachments—gradual, tolerated and then entrenched. Power doesn’t announce itself with a roar. It seeps in, clause by clause, until the foundations give way.
By Joshua Claybourn
April 27, 2025 5:16 pm ET
The taxing power belongs to Congress, which didn’t surrender it in the 1977 law he cites.
I joined a broad coalition of leaders—including former U.S. senators, retired federal judges, a former U.S. attorney general and pre-eminent constitutional scholars—in filing a friend-of-the-court brief last week in V.O.S. Selections v. Trump. Our brief urges the U.S. Court of International Trade to strike down President Trump’s 2025 tariffs as an unlawful and unprecedented seizure of legislative power. It challenges Mr. Trump’s sweeping proclamations not because of what they do but how they were done: unilaterally, without congressional authorization, and in defiance of the Constitution’s structure.
In April, Mr. Trump imposed a 10% baseline tax on all imports and sharply higher duties on goods from many countries. Then, in a series of whiplash tweaks, he shifted the numbers. These measures weren’t authorized by Congress. They weren’t part of a debated trade bill. They were declared unilaterally by presidential proclamation.
Tariffs are taxes, and under the Constitution, they must be enacted by Congress. Mr. Trump claims authority under the International Emergency Economic Powers Act of 1977. But that law allows the president to freeze certain foreign assets in times of national emergency, not to impose new taxes on Americans. It was a post-Watergate reform crafted to limit executive power, not expand it.
Yet here we are, in a strange moment of constitutional drift. Trade deficits dating back to the 1990s are labeled “emergencies.” A decades-old global economic pattern is rebranded as justification for executive taxation. The president signs a proclamation and the machinery of taxation begins—without hearings, votes or the consent of the people.
Conservatives have spent decades preaching the importance of limited government, checks and balances, enumerated powers and the rule of law. We have insisted that means matter—that you can’t govern well by ignoring the architecture of the Constitution. We rallied against executive overreach under President Obama, rightly pointing out that even noble goals don’t justify unconstitutional methods. What are we to make of this moment, when a president supposedly from our own ranks casts aside those same constraints?
Some will be tempted to shrug. The tariffs are popular in certain quarters and Mr. Trump is strong-willed. But that’s exactly the problem. We’ve grown accustomed to Congress punting hard decisions to the executive branch, and to presidents treating ambiguous statutes as blank checks. We’ve lost the soul of republican government, the idea that sovereignty resides with the people, and that power must be mediated by institutions designed for consent and deliberation.
Congress has been steadily hollowed out by its own cowardice and by presidents eager to rule through fiat. The legal tools are always the same—broad emergency powers, vague statutory phrases, delegated discretion unmoored from clear standards. Each time it happens, the boundary between legislative and executive power fades a little more.
The Constitution doesn’t enforce itself. It depends on citizens and institutions willing to defend its boundaries—even when doing so is politically inconvenient. That’s why this legal challenge matters. It asks the courts, and the country, a simple question: Can the president tax the American people without clear and limited authority from Congress? To say yes would be to accept taxation without representation.
In Federalist No. 48, James Madison warned that the erosion of liberty rarely comes by force. More often, it slips away through quiet encroachments—gradual, tolerated and then entrenched. Power doesn’t announce itself with a roar. It seeps in, clause by clause, until the foundations give way.
