The Tumult Over Tariffs

The big scoop in the Times is that a “fiery brief” animated by conservatives is helping put President Trump’s tariffs in peril. Could be. Then again, too, it could be another case of some of America’s greatest law professors getting on a constitutional high horse only to be bucked off by the Supreme Court. In one such case — on the 14th Amendment’s supposedly disqualifying Mr. Trump from the ballot — they were rebuffed by a unanimous court.Our advice is to keep one’s constitutional cool. In the 14th Amendment dispute, to be sure, the losing legal lights leaned largely liberal. The case that now animates the Times is about the tariffs. The Times’s scribe, Adam Liptak, focuses on an amicus brief written by conservative sages arguing that Mr. Trump’s tariffs blur the “bright lines” between executive and legislative authority in a way deleterious to democracy.“The powers to tax, to regulate commerce and to shape the nation’s economic course must remain with Congress,” the brief argues. Its signatories comprise some of the leading lights of the conservative bar — libertarian sages Richard Epstein and Judge Michael McConnell, Attorney General Mukasey, Senators Danforth and Hagel, and a Federalist Society founder, Steven Calabresi. A liberal lion, Harold Koh, has also signed on.Mr. Epstein tells the Times that the “conservative movement is now, as an intellectual movement, consistently anti-Trump on most issues,” though that could be overstating the case. Another conservative, Harvard’s Jack Goldsmith, calls the tariff issue “hard and close.” The Supreme Court, which has already drawn the circumference of presidential immunity with a broad compass, could determine that he is not helpless on the tariff front.The Sun’s view, recently articulated in an editorial headlined “Trump’s Tariff War — Waist Deep in the Big Muddy,” is that Mr. Trump would be wise to involve Congress in his deliberations over tariffs, even if it’s not strictly necessary. That’s true, we noted, even if “protective tariffs — which amount to a tax on consumers — are not the only, or necessarily best, way to revive America’s industrial prowess.”Regardless of how the Nine eventually rule, the fissures that have opened between the 47th president and the legal right appear unlikely to close soon. Feature Mr. Trump’s broadside against the Federalist Society in the wake of his defeat in the tariff case, where he called the organization’s long-time leader, Leonard Leo, a “sleazebag.” This despite Fed Soc’s helping Mr. Trump stock the federal judiciary with originalist jurists.Mr. Trump’s umbrage at the Federalist Society appears to have less to do with the judges who ruled against him on tariffs — the one he appointed was not endorsed by the Federalists — and more with a broader frustration that judges can rule in ways that confound even the presidents who appoint them. This has been especially true of, say, Justice Amy Coney Barrett. Vice President Vance has criticized even Chief Justice Roberts. A more accomplished conservative lawyer than Paul Clement would be difficult to find. Yet Mr. Clement is representing the law firm Covington & Burling against an executive order from the 47th president. Even the New Yorker acknowledges that “in going up against Mr. Trump, Clement’s conservative bona fides are unsurpassed.” Mr. Clement has been unsparing in his criticism of the baleful effects of such orders. Mr. Clement also opposed dismissing the bribery charges against Mayor Adams “without prejudice,” meaning that they could be refiled. Instead, he convinced Judge Dale Ho to dismiss the case “with prejudice” and banish the possibility of a recharge. That was a shrewd solution to an impasse between Mr. Trump and his own DOJ. The head prosecutor in that case, Danielle Sassoon, was a member of the Federalist Society — and a Republican.Federal prosecutors like Ms. Sassoon, judges like Justice Barrett, and presidents like Mr. Trump are all sworn to the Constitution. Contending over its meaning is a harbinger of health, not an indication of illness. The tumult over tariffs is a reminder that some of our best legal minds have on occasion written off — or even mocked — President Trump’s positions and won in lower courts only to be reversed at the high bench.

The Tumult Over Tariffs

The Tumult Over Tariffs

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