(The New Yorker)—Last summer, when the Supreme Court of the United States jolted the legal system by overruling the landmark Chevron decision, John Vecchione, of the New Civil Liberties Alliance, was one of many conservative legal advocates who celebrated the ruling’s downfall in Loper Bright Enterprises v. Raimondo. As the lead lawyer in Relentless Inc. v. Department of Commerce, a companion case to Loper Bright, which upended four decades of administrative law, Vecchione has played a starring role in a number of legal battles aiming to rein in the so-called administrative state—by vesting the judiciary with greater oversight of federal agencies, regulations, and how the government goes about setting rules that touch all corners of American life. In this broader campaign, ending Chevron was worthy of a toast. “We had sparkling wine,” Vecchione told me. (There was no champagne on hand.)
The New Civil Liberties Alliance, or N.C.L.A., was founded during the early days of the first Trump Administration by a group of conservative-leaning legal advocates, to “tame the unlawful power of state and federal agencies.” Many of their cases have targeted the same kind of administrative power that President Trump himself is determined to stamp out—including his all-out assault on independent watchdogs and agencies. Philip Hamburger, a Columbia law professor who founded N.C.L.A. and serves as its C.E.O., told me in an e-mail that the group “defends our civil liberties by confining our government to lawful power, regardless of who’s in the driver seat.”
As part of that mandate, Vecchione and his team have recently directed their legal firepower at Trump, challenging one of the defining and most disruptive policies of his second Presidency: his invocation of emergency powers to impose across-the-board tariffs on imported goods, which the White House has claimed are necessary because “foreign trade and economic practices have created a national emergency.” N.C.L.A. filed suit just one day after what has now become known as “Liberation Day,” which plunged the U.S. into a trade war and wreaked havoc on financial markets around the world.
N.C.L.A.’s lawsuit, the first of its kind, was brought on behalf of Simplified, a small, woman-owned and led company, based in Florida, that relies on Chinese-made materials to sell planners, stationery, and other paper products. Notably, the case doesn’t challenge the latest round of levies imposed on Liberation Day, some of which have since been paused. (A ten-per-cent universal tariff remains in place.) Instead, the federal complaint, filed in the Northern District of Florida, seeks to invalidate a pair of executive orders Trump signed in February and March that placed tariffs on imports from China, Canada, and Mexico—the U.S.’s three largest trading partners—and which are still very much in effect. Yet the case stands to influence legal challenges to the Liberation Day tariffs, too, because the President relied on the same mechanism for both the earlier and more recent tariff announcements, declaring a national emergency under the International Emergency Economic Powers Act, of 1977. The statute, known as the I.E.E.P.A., had never before been used to enact tariffs; indeed, the word “tariff” isn’t mentioned anywhere in the statute’s text. What the law does do is allow the President to “regulate” an assortment of international economic transactions whenever the nation is faced with “an unusual and extraordinary threat.”
But, in this current moment, there’s no such threat. “Whether ‘regulate’ includes the power to impose a tariff, and the scale and scope of what tariffs might be authorized under the statute, are open questions,” the otherwise staid Congressional Research Service noted in its own analysis of Trump’s actions. N.C.L.A. puts Trump’s lack of authority in far more forceful terms. The law “does not allow a president to impose tariffs on the American people,” the organization’s complaint reads. “President Trump’s Executive Orders imposing a China tariff are, therefore, ultra vires”—beyond his authority—“and unconstitutional. This Court should enjoin their implementation and enforcement.”
There are other congressional enactments that do authorize tariffs, which Trump duly invoked during his first term without drawing a major legal challenge. N.C.L.A. points to the Trade Act of 1974, which allows the U.S. Trade Representative to “impose duties or other import restrictions,” or else to “proclaim a tariff-rate quota on the article.” When Trump relied on those and related authorities to levy tariffs on China, on steel and aluminum imports, and on washing machines and solar cells, his first Administration followed an onerous regulatory process, called for by Congress, that took the better part of a year to complete in all three instances. Not so with the China tariffs imposed in February and March, for which Trump turned to the I.E.E.P.A.
To kick that overreach into high gear, on the first day of the new Administration, the freshly inaugurated President declared a national emergency at the southern border, which he insisted was “overrun by cartels, criminal gangs, known terrorists, human traffickers, smugglers, unvetted military-age males from foreign adversaries, and illicit narcotics that harm Americans.” Few things rouse Trump more than the spectre of rampant migrant criminality and drugs hovering over the nation, and so his Administration doubled down on a manufactured sense of emergency, naming both immigration and economics as reasons for dictating trade policy under the I.E.E.P.A.—and making examples of China and our North American neighbors in the process. “President Trump is taking bold action to hold Mexico, Canada, and China accountable to their promises of halting illegal immigration and stopping poisonous fentanyl and other drugs from flowing into our country,” a White House fact sheet released in early February read. This rationale adorned the accompanying executive order targeting China: “Imposing Duties to Address the Synthetic Opioid Supply Chain in the People’s Republic of China.” And, in March, the President increased the tariffs on Chinese goods yet again, citing the absence of “adequate steps to alleviate the illicit drug crisis.” (The current tariff rate, which Trump raised again on Wednesday, in response to China’s retaliatory tariffs on U.S. imports, is a hundred and forty-five per cent.)
Because the tariffs and Trump’s many defenses of them—the need to deal with trade deficits, raising revenue, and other “purely economic” reasons, in Trump’s words—cannot be shown to be “necessary” to address this supposed emergency, as the I.E.E.P.A. requires, N.C.L.A. believes the courts can and should declare them unlawful. After all, this will go to the very Supreme Court that declared, when overruling Chevron, that courts owe no deference to the executive branch when interpreting statutes. “This Court that is so textualist and so originalist is not going to let the President use the statute for something that is just not in the statute,” Vecchione told me.
The long game here may go beyond tariffs. Nested within N.C.L.A.’s statutory argument lies a fairly straightforward constitutional argument, plus two others that are more complex—or that are at least up for debate under current Supreme Court precedent. According to Article I of the Constitution, only Congress has the “Power To lay and collect Taxes, Duties, Imposts and Excises” and “regulate Commerce with foreign Nations.” Because tariffs are, effectively, a tax on U.S. businesses that rely on foreign goods to operate, the argument goes, the President cannot wrest this power from Congress. So far so good.
But what if Congress has delegated this taxation authority to the President, as Trump claims it did in the I.E.E.P.A.? Then, N.C.L.A. contends, such delegation was so sweeping and amorphous as to rob Congress of its own legislative authority—and thus the law itself violates a legal precept known as the nondelegation doctrine. This relic of constitutional law, which the Supreme Court hasn’t taken seriously since its quiet death in the New Deal era, is more mythical than historical—holding, more or less, that Congress cannot delegate its lawmaking power to another branch of government. The last time the Supreme Court deployed the doctrine to strike down a federal enactment was in 1935, when Chief Justice Charles Evans Hughes declared unconstitutional a key part of President Franklin D. Roosevelt’s New Deal agenda. “Congress cannot delegate legislative power to the President to exercise an unfettered discretion to make whatever laws he thinks may be needed or advisable for the rehabilitation and expansion of trade or industry,” Hughes wrote.
For many years now, N.C.L.A. and others in the conservative legal movement, including a number of Trump-aligned judges, have been trying to make the nondelegation doctrine great again. The closest the current Supreme Court has come to doing so was in Gundy v. United States, a 2019 case in which N.C.L.A. filed an amicus brief urging the Supreme Court to revive it and call it something snappier: divestiture. “Statutes that divest Congress of these legislative powers by conferring them upon executive or agency officials are violating the Constitution itself—not mere judicial ‘doctrine’ or precedents,’ ” Jonathan Mitchell, a lawyer for N.C.L.A. who later rose to prominence as the architect of S.B. 8, a Texas anti-abortion statute, wrote at the time. “Using the term ‘nondelegation doctrine’ both misdescribes and understates the problem with statutes that give lawmaking powers to agency officials, and the widespread use of this nomenclature stacks the deck in favor of administrative power and against the judicial enforcement of Article I’s vesting clause.”
The Supreme Court, in a fractured ruling that couldn’t command a majority of five Justices, didn’t adopt N.C.L.A.’s proposal in Gundy. But the dissenters, led by Justice Neil Gorsuch, alluded to the group’s argument when writing that judges “have an obligation to decide whether Congress has unconstitutionally divested itself of its legislative responsibilities.” In a retort that illustrates the far-reaching consequences of reviving the nondelegation doctrine, Justice Elena Kagan, writing for a four-Justice plurality, mused that if the delegation challenged in Gundy were ruled unconstitutional, “then most of Government is unconstitutional.” In the next few months, the Justices will get a second bite at the apple: in a pending challenge to the Federal Communications Commission’s authority to provide phone-and-internet programs for underserved areas, the Supreme Court will once again tell us if the nondelegation doctrine has any life left in it at all. (In an amicus brief, N.C.L.A. has urged the Justices to question the funding mechanisms of the programs, which for decades has supplied billions to subsidize connectivity in schools, libraries, hospitals in rural areas, and low-income communities. “The ‘nondelegation’ doctrine is failing,” the group lamented.)
Another thing Gorsuch did in Gundy, presaging yet another argument N.C.L.A. advances in its tariff lawsuit, is to play up the so-called major-questions doctrine. This newer doctrine took on a life of its own during the Biden Administration, when the Supreme Court struck down a number of federal policies it deemed of vast “economic and political significance”—including the Center for Disease Control and Prevention’s pandemic-era eviction moratorium, the Environmental Protection Agency’s ability to regulate certain greenhouse-gas emissions under the Clean Air Act, and the President’s student-debt cancellation program. In this latter case, Chief Justice John Roberts, otherwise an ardent defender of executive power, mounted a forceful defense of the newfangled major-questions doctrine—which Kagan, in dissent, had accused the Court of making up out of whole cloth to strike down policies a majority of Justices didn’t like. Roberts conceded that “the major questions ‘label’ may be relatively recent,” but insisted that the doctrine is rooted in “ ‘an identifiable body of law that has developed over a series of significant cases’ spanning decades.”
Of course, which policies constitute major questions of “economic and political significance” is in the eye of the beholder, fuelling the belief that only Democratic Presidents are subject to this test. Will the current Supreme Court conclude that Trump’s tariffs also flunk it? N.C.L.A. certainly thinks so. And now that its suit is the first out of the gate, others within the group’s orbit of conservative legal activists, pro-business organizations, and allied academics appear to be gearing up for their own legal challenges. “I believe this has broken the ice,” Vecchione told me.
Following N.C.L.A.’s action, the Retail Industry Leaders Association, which represents businesses such as Best Buy, Target, and Home Depot, boosted the lawsuit through its affiliate, the Retail Litigation Center. “Before lasting damage is done to the economy and family budgets, leading retailers support timely judicial review of this abuse of authority from the White House,” the center said, in a statement. Politico, which reported on that statement, noted that multiple lawyers and associates for business groups were considering additional legal challenges to the latest round of tariffs. “All options are being considered,” one unnamed trade-association executive told the outlet. And a “prominent legal figure close to Trump” told ABC News this week that there’s “a very good chance” that the Supreme Court won’t stomach Trump’s tariffs.
On Trump’s Liberation Day, Ilya Somin, a professor at George Mason University’s Antonin Scalia Law School, published a blog post looking for suitable plaintiffs to bring a court challenge on behalf of the Liberty Justice Center, a litigation shop focussed on economic-liberty issues. (The late Scalia, I should note here, is credited with one of the better-known quips foreshadowing the major-questions doctrine: Congress, he once wrote, does not “hide elephants in mouseholes.”) Before Trump’s election, Somin had been sounding the alarm about the illegality of imposing tariffs without Congress, but the way to get this issue into court is to find plaintiffs who are harmed by the tariffs and thus have legal standing to sue. “We want to get firms that directly import from abroad,” Somin told me. As his recruitment post notes, small businesses may well be disproportionately harmed by the tariffs and thus are the perfect plaintiffs.
What strikes Vecchione about this growing legal consensus is that the business giants who stand to lose the most under a trade war have yet to put up a fight. Are they really more keen on maintaining their access to the White House, a desire that some of them made plain on Inauguration Day, than they are on protecting their bottom line? “Where is Amazon?” Vecchione asked. “Where is Walmart? Where are they? Where the heck are they?” Somin told me, “If an Apple or a Walmart wants to file a case, they may not need our help. They obviously have immense resources of their own.” Even with Trump backing down from some of the levies announced on Liberation Day, he noted, in an e-mail to reporters on Wednesday night, that the importance of challenging the President’s “unconstitutional usurpation of power” remains the same. Besides, these tariffs haven’t been cancelled; they’ve just been paused. “Trump’s vacillations continue to create dangerous uncertainty,” Somin wrote.