(Bloomberg Law)—Among the torrent of lawsuits challenging President Donald Trump’s policies is one filed by a more surprising litigant: a group that’s pushed causes dear to the right with funding from conservative mega donors.
New Civil Liberties Alliance, which helped Trump’s de-regulatory agenda with a blockbuster Supreme Court fight last term that undercut the power of administrative agencies, took on the new administration with a lawsuit challenging Trump’s tariffs on all products coming into the US from China.
The first out of the gate lawsuit filed last week was notable at a time when others bringing legal challenges against the Trump administration have come under the threat of retaliation.
“Certainly it takes some bravery to be the first, but I think there’s an understanding and an expectation that the more that do it, the harder it is to punish all of them,” said Thomas Berry, director of the Cato Institute’s Center for Constitutional Studies.
“There’s strength in numbers,” he said.
Cato, a D.C.-based libertarian think tank, joined the ACLU in a April 2 brief with other groups supporting Perkins Coie’s case challenging Trump’s executive order that targeted the law firm.
Long-Term Principles
NCLA’s lawsuit and Cato’s signature on the ACLU’s brief signal conservative and libertarian leaning groups are starting to push back against Trump’s broad use of executive power.
“It’s significant that there is such broad opposition now to Trump’s attacks on democratic institutions and freedoms,” Jameel Jaffer, executive director of the Knight First Amendment Institute at Columbia University, said in an email. The nonprofit, which works to preserve and expand freedoms of speech and the press, signed the ACLU brief alongside Cato.
The Knight Institute also filed a brief March 26 on behalf of legal scholars in support of the Associated Press. The news organization had sued White House officials after they banned the news outlet from the Oval Office, Air Force One, and other locations open to journalists with White House credentials for not referring to the Gulf of Mexico as the Gulf of America following President Trump’s renaming.
Jaffer noted Michael McConnell, a former George W. Bush appointed judge on the US Court of Appeals for the Tenth Circuit, was one of the legal scholars represented.
“My sense is that scholars and free speech advocates from across the ideological spectrum—people who would disagree with one another about many, many things—now view the Trump administration as posing an extraordinary threat to democratic institutions and freedoms,” Jaffer said.
NCLA’s April 3 lawsuit appears to be the first filed against the administration’s tariffs on imports from China.
“I had expected that we might not be first ‘cause my perception was somebody else would file a similar case,” said Andrew J. Morris, senior litigation counsel for the group.
Others, however, are likely coming. In an April 3 blog post, UCLA Law School Professor Eugene Volokh said he and the Liberty Justice Center are looking for appropriate plaintiffs to challenge Trump’s tariff policy.
The Liberty Justice Center is a libertarian-leaning nonprofit public-interest group known for winning a landmark Supreme Court ruling in 2018 that made it unconstitutional for public sector unions to charge non-union workers bargaining fees.
Emergency Powers Challenged
NCLA, which is backed by conservative funding from billionaire Charles Koch and entities linked to legal activist Leonard Leo, quickly emerged as a top Supreme Court litigator last term.
The nonprofit successfully fought to eliminate a Trump-era ban on bump stocks and helped get the Chevron doctrine overturned. The legal principle had told courts to defer to an agency’s reasonable interpretation when laws are ambiguous. It’s a ruling that’s likely to help the Trump administration defend decisions to rollback Biden-era policies.
But Morris said NCLA’s lawsuit against Trump’s China tariffs shows the nonprofit is nonpartisan.
“We have a number of principles that we pursue and one of them is the separation of powers and preventing abuse of emergency statutes and preserving Congress’s role in certain areas,” he said.
NCLA argues Trump doesn’t have the power he claims under the International Emergency Economic Powers Act to impose tariffs. The statute authorizes presidents to order sanctions as a rapid response to international emergencies. It does not even mention tariffs, NCLA said in its complaint.
When Trump announced across-the-board tariffs on China, Mexico, and Canada, he cited illegal immigration and the fentanyl crisis as national emergencies that demand action under IEEPA.
“President Trump has broad authority to impose tariffs to address issues of national emergency, such as the opioid pandemic,” Harrison Fields, a spokesman for the White House, said in an email when asked for a response to NCLA’s litigation. “The Trump Administration looks forward to victory in court.”
Morris said NCLA is prepared to take its fight all the way to the Supreme Court. Though it’s focused now on challenging the tariffs on goods from China, he said the nonprofit is open to representing clients who want to challenge Trump’s tariffs on goods from other countries as well.
“I have confidence in just the strength of our argument,” he said about its current case.
“We are not saying the president is not allowed to declare an emergency over fentanyl. We’re not getting into that fight,” Morris said. “We’re just saying that doesn’t justify a tariff.”